G.B. Pattanaik and; M.B. Shah, JJ.
1. This is an appeal by the Maharashtra State Electricity Board assailing the judgment of the Bombay High Court dated 16-4-1996.
2. The short question that arises for consideration in this appeal is, whether a Sub-Engineer who seeks transfer from one cadre to the other and gets such a transfer, would be entitled to claim seniority in the transferred cadre by reckoning the past services rendered in the earlier cadre into account.
3. It is not disputed that under the Maharashtra State Electricity Board the Sub-Engineers were in different Circles and Sub-Engineers of each Circle constitute a cadre by itself. It is also not disputed that prior to 21-10-1980 the seniority of such Sub-Engineers was on Circle level which fact has also been stated in the impugned judgment of the High Court. The two respondents while seeking transfer from their original Circle to Akola Circle, themselves indicated to the employer that they are ready and willing to lose their seniority in case they are transferred to the new Circle and the authorities while considering their request for transfer, categorically stated that their seniority will be determined in accordance with Regulation 21(a) of the Maharashtra State Electricity Board Employees' Seniority Regulations, 1961 (for short “the Regulations”). The High Court, however, not applying its mind to the relevant provisions of the Regulations and, on the other hand, on a misreading of Regulation 21(a), came to the conclusion that the said Regulation will have no application and the respondents have not changed their cadre and consequently the High Court allowed the prayer of the respondents, directing that their seniority should be determined taking into account the entire length of service notwithstanding the fact that they were transferred from one Circle to the other on their own requests.
4. Mr Bhasme, the learned counsel appearing for the Board contended that the conclusion of the High Court is based upon a thorough misreading of the relevant provisions of the Regulations and, on the face of it, is unsustainable in law and the same must be set aside. The respondents though had entered appearance, but the Advocate-on-Record submitted that he has no instructions in the matter and, therefore, none argued on their behalf. Since the respondents were not being represented by any counsel, we have meticulously examined the relevant documents available on record and the provisions of the Regulations framed under Section 79(c) of the Electricity Supply Act, 1948. Regulation 2(b) defined “cadre” and Regulation 2(d) says “ex-cadre post” means “post outside the cadre”. Regulation 2(e) stipulates that “ex-cadre transfer” means “transfer of an employee from one cadre to another or in respect of an employee not being a member of a cadre, his transfer from one post to another”. Regulation 3 indicates that seniority shall be based on the length of continuous service in the particular category. Regulation 17 indicates that the cadre of Sub-Engineers was Circlewise and the note appended thereto unequivocally states that the category of Sub-Engineers has been deleted from the Circlewise seniority and included in the Statewise seniority w.e.f. 21-10-1980 by order dated 31-3-1983. It is thus crystal clear that prior to 1980 the seniority of Sub-Engineers was being determined on the basis of the Circle in which they had been absorbed and, therefore, each Circle would constitute a cadre so far as Sub-Engineers are concerned. Regulation 21(a) is, in fact, relevant for our purpose and the same may be extracted in extenso herein:
“21. (a) In the case of an ex-cadre transfer effected at the request of an employee, the service in the original unit of seniority from which he is transferred shall not count as service as for the purpose of seniority but the date of his reporting for duty in the new post shall be taken as the basis of his seniority.”
5. The aforesaid Regulation unequivocally states that in case of an ex-cadre transfer effected at the request of an employee, the service in the original unit of seniority from which he is transferred shall not count as service as for the purpose of seniority but the date of his reporting for duty in the new post shall be taken as the basis of his seniority.
6. In view of the definition of “cadre” as already stated, and in view of the fact that seniority of Sub-Engineers was being determined Circlewise and each Circle constitutes a cadre, transfer of the respondents from one Circle to the other cannot but be held to be an ex-cadre transfer and such ex-cadre transfer having been made at the request of the employees, their seniority has to be governed by Regulation 21(a). The High Court, therefore, has been wholly in error in misconstruing the provisions of Regulation 21(a) and directing that the seniority shall be determined on the basis of their continuous length of service. We therefore have no hesitation in quashing the impugned order of the High Court and we do quash the same. This appeal is accordingly allowed. Be it stated that these two respondents' seniority has to be determined following the principle of Regulation 21(a) of the Regulations.