Seniority Of Employees Must Not Be Compromised While Making Transfers: Allahabad High Court

The Allahabad High Court has observed that where transfer is permissible, the employees must be transferred at the same post which they were originally serving at. It has been held that the seniority of employees must not be compromised.Justice Ajit Kumar observed that “transfer though is permissible within the distribution company but in no circumstances, seniority of employees should be compromised nor, the employees can be directed to be posted in an inferior office to the one they have been serving at, from where they are sought to be transferred. Thus, if an employee is working in the office of Chief Engineer, he should be transferred in the office of Chief Engineer. Likewise employees working in the office of Superintendent Engineer or Executive Engineer should be transferred to the office of Superintendent Engineer or Executive Engineer only.”Factual BackgroundPetitioners were working in the Purvanchal Vidyut Vitaran Nigam, Ltd, a Distribution and Supply of the Electricity Company (DISCOM) with the headquarters at Varanasi. Petitioner approached the High Court against orders transferring them from one zone to another. Petitioners argued that the Transfer policy of the year 2019-2020 being an annual policy was no longer and existence and the transfers could not be based on the same. It was argued that a transfer policy which was not in existence could not be reinforced or extended by a circular letter dated 22nd July, 2023.It was argued that under the U.P. Electricity Reforms Transfer Scheme, 2000, statutory rules were required to be framed regarding conditions of service (including transfer) failing which U.P. State Electricity Board Rules would govern the service conditions. It was argued that the circular letter of 2023 had no statutory force and therefore could not be relied upon for transferring employees. Further, it was argued that many employees transferred from one circle to another lost their seniority. It was argued that the transfers were whimsical and arbitrary instead of being based on some administrative exigency or public interest. High Court VerdictThe Court observed that a large number of transfer orders were passed by the Corporation transferring various employees from one circle/ zone to another. It was observed that the transfer orders did not specify the posts on which the employees were being transferred. It was only when the employees reported to the transferred zonal office they would be informed about the posts and duties they were supposed to discharge. Further, as argued by the respondents, the Court observed that the transfer policy issued by the board of directors had already been upheld by a coordinate bench in Ashutosh Kumar Singh v. Uttar Pradesh Power Corporation.It was also observed that in Rajeev Kumar Jauhari v. State of U.P. and others, a division bench of the Allahabad High Court had upheld the U.P. Electricity Reforms Transfer Scheme, 2000 and held that companies incorporated under the Companies Act did not require any statutory rules and every administrative instruction by a competent authority shall be binding. It was held that contract between employees and corporations being a private one, board of directors could issue any executive instructions governing transfer policies. The Court observed that by virtue clause 6(10) of the U.P. State Electricity Reforms Transfer Scheme, 2000, the transferee company, which is the Respondent-Corporation, was vested with the powers of framing service regulations of the employees. Since the transferee company did not frame any fresh regulations, its existing service conditions issued by the board of directors was applicable on the employees. Accordingly, it was held that no statutory force was required to be given to the transfer policy. “In view of the above Division Bench judgment, it was not necessary for corporation to have framed any statutory rules or regulations and the corporation, therefore, could do so by way of issuing executive instructions. It is not the case of petitioners that in the previous establishment when it was known as U.P. State Electricity Board the employees were not transferable, if the employees were transferable then within the DISCOM the distribution company, I see no justification to hold that transfers inter circle is bad,” held Justice Kumar. Further, the Court held that transfer orders cannot be quashed merely because an employee who has served less years holds a higher post than the transferred employee. “A person higher in rank will remain higher in rank because he/ she is promoted in a particular circle for availability of posts and fulfilling eligibility criterion whereas an employee working in another circle in the same cadre may not have been promoted for want of vacancy even though his length of service more in number of years.”Observing that that the petitioners had not pleaded in the writ petition that their seniority was going to be affected by the impugned transfer orders, the...

Seniority Of Employees Must Not Be Compromised While Making Transfers: Allahabad High Court

Upasna Agrawal

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