THE HONBLE Sr.JUSTICE DAMA SESHADRI NAIDU W.P.No.15678 of 2014 17-06-2014 S.Ramanjaneyulu and others....PETITIONERS Telangana Southern Power Distribution Company Limited (TGSPDCL).(Formerly Central Power Distribution Company Limited).Mint Compound, Hyderabad 500 063, rep.
By its Managing Directorand another.....RESPONDENTS Counsel for the petitioner: Sr.P.Sudheer Rao Counsel for respondents: Sr.Laxma Reddy, Standing Counsel : ?.Cases referred: Nil HONBLE Sr.JUSTICE DAMA SESHADRI NAIDU WRIT PETITION No.15678 of 2014 ORDER
: INTRODUCTION: This writ petition concerns itself with the dispute of provisionally allocating, or more appropriately, transferring, certain employees in the same organisation, in anticipation of its restructuring, and consequential reallocation of its staff on a permanent basis.
Before proceeding further, the issue is to be contextualised by stating that, as on the date the cause of action arose for the petitioners to seek judicial redressal, there was one unified state and the Andhra Pradesh State Reorganisation Act had not been given full effect, as it was prior to the Appointed Day.
The petitioneRs.employees of the erstwhile Central Power Distribution Company Limited (APCPDCL).which, after 02.06.2014, is called Telangana Southern Power Distribution Company Limited (TGSPDCL) in terms of A.P.Re-organisation Act, 2014, have assailed in this Writ Petition the orders issued by the fiRs.respondent on 31.05.2014 provisionally allotting their services to Southern Power Distribution Company of A.P Limited (APSPDCL).the second respondent.
BACKGROUND: The Andhra Pradesh State Electricity Board (APSEB) was formed on 01.04.1959, and continued to be in existence till the late 1990s.
On 14.06.1997, in the wake of World Bank recommendations, the government of erstwhile AP released a power sector policy statement indicating proposed policy and structural changes in the power sector.
Accordingly, the Electricity Reforms Act of 1998 was brought into existence with effect from February 1999.
The AP Gazette No.37, published on 31.03.2000, declared formally the formation of four Distribution Companies.
In that process, AP Central Power Distribution Company Limited (APCPDCL) was formed on 01-04-2000 to cater to the electricity needs of seven districts in the erstwhile combined state of Andhra Pradesh, viz.
Ananthapur, Kurnool, Hyderabad, Rangareddy, Mahaboob Nagar, Medak & Nalgonda districts.
The APCPDCL is the largest of the four power distribution companies, namely APEPDCL, APSPDCL, APNPDCL and APCPDCL.
Similarly, AP Southern Electricity Distribution Company (APSPDCL) was formed for six districts, with its Corporate Office and Headquarters at Tirupati City.
The six districts are Krishna, Guntur, Prakasam, Nellore, Chittoor, Kadapa, Anantapur and Kurnool.
These distribution companies, for short discoMs.continued to be in existence as independent entities till 01.06.2014.
The Parliament, in exercise of powers conferred on it in terms of Articles 3 & 4 of the Constitution of India, enacted the Andhra Pradesh Reorganisation Act, 2014 (the Act 6 of 2014, for brevity) proclaiming the bifurcation of the Andhra Pradesh state into two states, Telangana and residuary Andhra Pradesh.
The Act, being comprehensive dealing with all aspects of the division of the state, received the assent of the President on 1st March, 2014, having 2nd June, 2014 as the appointed day for the new state.
On the eve of the bifurcation of the state, the government of the erstwhile State of AP took various provisional measures to facilitate an easy transition of one state into two.
Under those circumstances, the dispute in the present lis has arisen.
FACTS IN BRIEF: The facts in brief are that all the petitioners have been working in different capacities in the 1st respondent company, formerly the APCPDCL and presently Telangana Southern Power Distribution Company Limited (TGSPDCL).In the wake of the bifurcation of the State of AP through the Andhra Pradesh Reorganisation Act, 2014 (the Act for brevity) and also supposedly in terms of G.O.Ms.No.24, Energy Department, dated 29.05.2014, issued by the then composite State of Andhra Pradesh, the fiRs.respondent issued proceedings in Co.(CGM-HRD) Ms.No.318, dt.
31.05.2014, provisionally allocating the petitioners to serve in the second respondent company (APSPDCL) until final determination of the staffing pattern in the respective States and until permanent fixation of staffing pattern in both the states.
Terming the allocation of the petitioners to serve the second respondent, provisionally though, as illegal and arbitrary, apart from being violative of the provisions of Act 6 of 2014, the petitioners have approached this Court.
THE SUBMISSIONS OF THE PETITIONERs.Sr.G.Vidhya Sagar, the learned Senior Counsel representing Sr.P.Sudheer Rao, the learned counsel for the petitioneRs.has contended that the petitioneRs.10 in number, have been working in various cadres in the fiRs.respondent company.
Though the petitioner Nos.1,2 and 4 are working in the Corporate Office of the company, the rest of the petitioners are working at different other places.
Prefacing his submissions the learned Senior Counsel has stated that the allocations of the petitioners to serve in the second respondent company is clearly in violation of not only Act 6 of 2014 but also G.O.Ms.No.24, dt.
08.05.2014.
Referring to G.O.Ms.No.24, the learned Senior Counsel submits that as per the said G.O., the provisional allocation of staff is to be done as per the State Government guidelines.
In that context, the learned Senior Counsel has contended that in the fiRs.place the employees of neither of the respondent companies are government servants, and secondly that the Government has not laid down any guidelines applicable to the respondent companies.
According to the learned Senior Counsel, the very purpose of G.O.Ms.No.24 is that all the employees of the erstwhile CPDCL working in Ananthapur and Kurnool circles on the appointed date still continue in the same place till the final allotment is made to the respective discoMs.Since the petitioners are working in neither of the districts, the question of their re-allocation to any other entity, including the second respondent, cannot be sustained.
Drawing the attention of this Court to Section 77 of the Act, the learned Senior Counsel contends that on and from the appointed date the employees working in the posts situated within the territorial State of Telangana including those working in the State Public Sector Corporation, shall continue to serve provisionally within the territorial limits of the said State.
This arrangement shall continue till the final allotment of the employees is completed in accordance with the guidelines to be issued by the Government of India.
In other words, the provisional allocation should be on as is where is basis.
The learned Senior Counsel has also submitted that it is imperative on the part of the respective States to seek the options from the employees concerned before effecting any final allocation.
The learned Senior Counsel has further submitted that the impugned Proceedings dt.
13.05.2014 do not ex facie reveal that at any point of time the fiRs.respondent consulted the second respondent, leave alone took its concurrence, before effecting the allocation.
The impugned proceedings are also laconic and do not refer to any of the modalities which are alleged to have been followed in identifying the petitioners for provisional allocation.
Underlining, in the words of the learned Senior Counsel, the hasty steps adopted by the fiRs.respondent, he contends that the petitioners were asked to be relieved on 01.06.2014 even before the appointed date, though it was Sunday.
The learned Senior Counsel has further drawn the attention of this Court to the fact that the posts of different cadres in the fiRs.and second respondents were notified on 01.06.2014 through CCO Ms.No.319 post haste, but even before that, the impugned proceedings had been issued on the previous day.
This lopsided approach of doing fiRs.what should have been done subsequently, contends the learned Senior Counsel, exposes the illegality on the part of the fiRs.respondent company.
The learned Senior Counsel has strenuously contended that the petitioners are a disparate group, and that it could not be stated that there is any rationale in the approach of the fiRs.respondent in allotting them to a different entity, albeit provisionally, when most of them do not work in the corporate offices.
He has submitted that even one were to take into account the nativity, except petitioner Nos.1,2,8 and 9, the rest do not hail from any of the districts within the jurisdiction of the second respondent.
According to the learned Senior Counsel, so far no guidelines have been issued in terms of Section 82 of the Act to effect any allocation.
The learned Senior Counsel has also stated that the petitioners do not fall within the purview of G.O.Ms.No.24, and accordingly the invocation of the said Governmental order does not justify the provisional allocation of the petitioneRs.Summing up his submissions, the learned Senior Counsel has urged this Court to set aside the Proceedings dated 13.05.2014 and issue consequential directions to the 1st respondent to continue the petitioners where they were working as on 31.05.2014.
THE SUBMISSIONS OF THE RESPONDENTS: Per contra, the learned Standing Counsel for the respondent companies, in tune with the counter affidavit filed by APCPDCL (now TGSPDCL).has countered the submissions of the learned Senior Counsel for the petitioneRs.He has submitted that the two districts of Ananthapur and Kurnool fall within the residual State of Andhra Pradesh, in accordance with Schedule XII of Andhra Pradesh reorganisation Act, 2014.
As such, it is necessary to reassign or redistribute the business of these two districts to the present APSPDCL from APCPDCL (now TGSPDCL).For easy facilitation, the Government has issued guidelines under Circular Memo No.13257/SR/A1/2014, dated 20.05.2014, apart from issuing G.O.Ms.No.24, dated 29.05.2014.
The learned Standing Counsel has further submitted that, in view of the bifurcation of APCPDCL, owing territorial compulsions in the wake of the division of the erstwhile united state, it is incumbent on the government to relocate some of the staff working in the corporate offices falling within the territory of the new state, for half of the company gets merged with another entity.
On that score, the learned Standing Counsel has elaborated on the percentage of allotment and other concomitant administrative adjustments.
The learned Standing Counsel has repelled the contentions of the petitioners that Section 77 of the Act is any impediment.
According to learned Standing Counsel it was not a unilateral action on the part of the 1st respondent inasmuch as it has simply followed GO Ms.No.24.
Heard Sr.G.Vidyasagar, the learned Senior Counsel representing Sr.P.Sudheer Rao, the learned counsel for the petitioneRs.and the learned Standing Counsel for the respondent Companies 1 & 2, apart from perusing the record.
From the pleadings of the respective parties to the lis and the rival submissions made thereon, the following issue is required to be adjudicated upon: ISSUE: Whether the action of APCPDCL (now TGSPDCL) in provisionally allocating the petitioners to serve in the APSPDCL territorially located in the residuary State of Andhra Pradesh is in violation of Act 6 of 2014 and GO Ms.No.24, Energy Department, dated 29.05.2014 ?.
DISCUSSION: In this writ petition a serious challenge has been laid against the Order dated 29.05.2014 passed by APCPDCL (presently TGSPDCL, but referred to all through in the discussion as APCPDCL) allocating the petitioners on a provisional basis to work in the second respondent company (APSPDCL).The order is said to be in violation of the provisions of Act 6 of 2014 and also GO Ms.No.24, Energy Department, dt.29.05.2014, as well as being beyond the power of the fiRs.respondent.
It is seemingly an inter-state service dispute.
But before getting down to brass tacks, it well serves the purpose if we bear in mind that the impugned order was passed on 31st May 2014, whereas the State of Telangana came into existence on 2nd June, 2014.
Further distinction is maintained if it is stated that the impugned Order was not passed by the TGSPDCL, but by APCPDCL, which was very much in existence as on 31st May, 2014.
Indisputably, at that material point of time, the petitioners were the employees of the said APCPDCL.
Ipso facto, the validity of the impugned order can be tested after accepting the fact that it was passed by the very employer of the petitioneRs.Before further cogitation on the issue, the twin factors that ought not to be lost sight of are that (i) the petitioners were provisionally allotted to work in the second respondent company; and that (ii) TGSPDCL was not inexistence by the date of the impugned order in its present form.
Recruitment, appointment, transfer, deputation and promotion etc., are the necessary incidences of public service.
With a quotidian regularity, they pass into the realms of the mundane affairs of the State, without calling for the attention of adjudicatory bodies at whatever echelon.
Division of a State, or in other words, birth of a State, is neither a routine nor a mundane matter of the State affaiRs.Apart from territorial division or demarcation, another necessary concomitant of the re-organisation of a State is that its hitherto unified workforce is required to be divided.
Demarcation of a territory may be straightforward; the division of administrative machinery is rather complex.
Ipso facto, on an appointed date, the affairs of the unified State would not automatically undergo a dichotomy in a pre-meditated manner.
The nitty-gritty of the division of a state administration is akin to putting in place a thousand pieces in a jigsaw puzzle.
To adopt another simile, a complex matter with enormous magnitude, to wit, the division of a State, essentially will be preceded by a penumbral period of adjustments before there is a final connection of the dots in a complex picture.
In the present instance, too, ever since the Act 6 of 2014 came into force, but before the appointed date, in the penumbral period, so to state, the erstwhile unified administration appears to have taken various preparatory measures to facilitate as smooth a transition of the administration and division of assets.
G.O.Ms.No.24, dt.29.05.2014 is one such piece of subordinate legislation passed by the erstwhile Government prior to the actual division of the State.
Under those circumstances, the same predictable parameters of service jurisprudence as to the transfeRs.deputations etc., cannot be applied.
It is axiomatic to observe that State or an instrumentality of a State as an employer, exercises absolute powers of control and discipline on its employees, of course, subject to the constitutional and statutory limitation.
In other words, unless any particular administrative measure of the employer is tainted with mala fides or suffers from the aspect of vires, the said administrative measure cannot usually be interdicted on the ground of inconvenience, or other such similar short comings.
As has already been stated, the order impugned concerns itself only with the issue of provisional allocation of certain personnel as an interim measure to facilitate as smooth a transition of the administrative machinery in the respective states as possible.
It may be observed that the allocation of the petitioners on a provisional basis can be likened to deputation.
Having proposed a legal fiction on that count, it is imperative on the part of this Court to take that analogy to its permissible logical end.
There is no gainsaying the fact that in the interest of administration, the employer does have the power to depute any of its employees to any of its divisions or departments.
In that context, the moot question that falls for consideration is whether an employee can be deputed from one entity to another entity, which is different and independent.
Technically viewed, after accepting the fact that the order impugned was passed by APCPDCL, the employer of the petitioneRs.deputation is to another entity i.e., APSPDCL.
There is no controveRs.in accepting the settled principle of law that the State or instrumentality, as an employer, cannot compel any employee to move on deputation from its parent institution to another one unless a statutory rule exists in this behalf.
In the present instance, all the petitioneRs.however, were initially the employees of one common entity i.e., A.P.State Electricity Board, which was simply a department of the erstwhile composite State of Andhra Pradesh.
Later, as part of electricity reforMs.the Government has unbundled it into four entities.
All those four entities have come into existence under one single statute.
At that time, the employees of the erstwhile APSEB were allotted among these four entities.
Now from 2nd June, 2014, APCPDCL came to be attenuated with its bifurcation and merger into other entities.
To expatiate, it is to be stated that when it originally had seven territorial districts as its components: two of them were merged with APSPDCL; five of them got rechristened as TGSPDCL.
Before its workforce can be divided, to work out the modalities, there needs to be sufficient number of personnel at both places.
When the territories of an establishment extend in both the states, but the administration has been stationed in one part, it is all the more necessary that some interim measures be taken for fine tuning the administration.
Under those circumstances, as a preparatory measure, the APCPDCL took certain measures such as provisionally allotting a few of its employees to APSPDCL, to which entity two of the district components would be ceded.
The impugned proceedings, dt.31.05.2014 were based on GO Ms.No.24, dt.29.05.2014.
As could be seen from the para No.2 of G.O.Ms.No.24, APCPDCL has expressly declared the provisional allocation of the staff will be done as per the State Government Guidelines.
In the impugned Proceedings this position has been acknowledged in para No.2.
Now the issue is whether there are any guidelines as have been mentioned in GO Ms.No.24.
The learned Standing Counsel has pointed out that Circular Memo No.13257/SR/A1/2014, dt.20.10.2014, contains the guidelines.
Indisputably, the circular memo is a precursor to the statutory arrangements to be made in terms of section 77 of the Act.
It does contain guidelines.
The circular memo has been marked to all the heads of the public sector undertakings, which the respondents are.
In both GO Ms.No.24 and the impugned order, dt.31.05.2014 it has been manifestly stated that the provisional allotments are being made in terms of the government guidelines.
Under those circumstances, the contention of the learned Standing Counsel for the petitioners that there were no guidelines issued by the Government, or in the alternative, that the respondent company has not adopted the guidelines, if any, I am afraid, cannot be countenanced.
The learned Senior Counsel, by way of alternative submissions, has drawn the attention of this Court to para No.9 of the Circular Memo dated 29.05.2014.
Elaborating on the impact of the said paragraph, the learned Senior Counsel has stated that those employees, who are working territorially in the State of Telangana shall provisionally be continued to serve in connection with the affairs of State of Telangana alone.
What cannot be lost sight of is that such an arrangement shall be in terms of Section 77(2) of the Act 6 of 2014 and it shall be only from 2nd June, 2014.
In other words, any arrangement discernable from para 9 of the Circular Memo may not be related back to the administrative measures that took place prior to 2nd June, 2014.
Even the contention of the learned Senior Counsel that the Circular Memo has been exclusively issued with regard to the Civil Servants, inasmuch as Section 77 of the Act is applicable only to the Civil Servants, cannot be accepted.
Without much cogitation, it can be stated that the very Section 77 shall be operative from 02.06.2014, the appointed date, as the very opening lines manifestly declare that all the employees, who are serving in the territorial posts, who immediately before the appointed date serving in substantive posts in connection with the affairs of the existing State of A.P., shall continue to serve provisionally in connection with the affairs of the State of Telangana.
Since it took effect from 02.06.2014, this Court is not called upon to decide whether the provision has any application to the respondent companies, the employees of which do not belong to the State.
At any rate, it cannot be stated that the Circular Memo has been strictly confined to the State Services or Civil Servants.
In my considered view, Circular Memo dated 20.05.2014 was not issued under Section 77 but was issued as a preparatory measure to facilitate the implementation of the statutory measure as outlined in Section 77 of Act 6 of 2014 from the appointed date.
As such, the Circular Memo is a pre-curser to, rather than a product of Section 77 of 6 of the Act.
Though the learned Senior Counsel has made strenuous efforts to impress upon the Court, as a matter of alternative submission, that all the Government Orders and Circular Memos issued by the respondent companies shall be traceable to the Act, I am afraid the said contention is re-stated only to be rejected.
Most of the provisions, especially with regard the division of assets or division of the work force in the erstwhile composite State of Andhra Pradesh were required to be given effect from the appointed date, Section 77 of the Act being a case in point.
All provisional measures, the impugned Proceedings dated 31.05.2014 being one such measure, were taken by invoking the inherent powers of the employer, the executive, based on the residual constitutional provision i.e., Article 162 of Constitution of India.
The intention of the Government that the guidelines shall apply across the Board is evident from para No.5 of the Circular Memo, which reads as follows: All posts in offices that are not exclusively relatable to areas going to only one state like the Secretariat, Head of Departments Offices, State Legislature, State level offices, Institutions, Special Offices and establishments, major development projects and programme based socities serving more than one part of the existing State of Andhra Pradesh State, including posts belonging to the organized State and Subordinate Services cadre posts in these offices, shall be provisionally allocated on the basis of the ratio of population of the two states.
Accordingly, all regular sanctioned posts in every cadre in these establishments would be divided in the ratio of 41:68 and 58:32 between the States of Telangana and Andhra Pradesh respectively.
Indeed, there is sufficient force in the contention of the learned Senior Counsel that the petitioners shall not be subjected to any discriminatory treatment at the time of final allocation of the work force only because initially they have been allotted to a particular entity or region provisionally.
As has already been observed, before the permanent arrangement comes into place, during the transitional period, which is penumbral in nature, certain work force is required to be deployed cutting across territorial lines only as an interim measure to facilitate a smooth transition.
For that purpose, some employee or another is required to be allocated.
For the purpose of transition, if any employee is assigned any task provisionally either by way of transfer or deputation or in whatever other manner, it shall not be to his or her prejudice at the time of final allocation of the work force.
Accordingly, it is made clear that the provisional allocation of the petitioners shall not operate to their prejudice at the time of final allotment, and a fortiori, the petitioners are at liberty to exercise their options in statutory terms and eventually the authorities concerned shall consider the cases of the petitioners at the time of permanent allotment, without reference to their provisional allotment.
Accordingly, the writ petition is disposed of with the above observations.
No order as to costs.
As a sequel to it, miscellaneous petitions, if any pending in this writ petition, shall stand closed.
________________________ DAMA SESHADRI NAIDU, J Date : 17-06-2014