Ganesh Chandra Jha v. Steel Authority of India — 1991 DIGILAW 110 (PAT)

Judgment S.B. Sinha, J. These two writ applications involving common questions of law and fact were heard together and are being disposed of by this common judgment. 2. In CWJC 1995/90R the petitioner has sought for issuance of an appropriate writ for quashing the office order dated 4.7.1990 as contained in Annexure-1 whereby and whereunder the petitioners who were working in the Inspection and Progress Department were directed to be transferred and posted to the Inspection wing of Research and Control Laboratory in parallel grade. In C.W.J.C. 1996/90R, the petitioners have sought for issuance of appropriate writ for quashing an office order dated 4.7.1990 as contained in Annexure-1, whereby the petitioners who were posted in the Inspection and Progress Department were directed to be transferred to Internal Audit Department. 2A. The fact of the matter lies in a very narrow compass. The petitioners in both the writ applications had been working as Inspectors or Inspecting Assistants in the Inspection and Progress Department of the Bokaro Steel Plant of the respondent-company. According to the, petitioners, the said Inspection & Progress Department undertakes inspection of materials used by the Bakaro Steel Plant from technical point of view wherefor technical knowledge in the electrical or mechanical engineering is required. The petitioners are qualified Engineers having Diplomas in Electrical or Mechanical Engineering. 3. As noticed hereinbefore, by reason of the impugned orders as contained in Annexure-1 to each of the writ application s the petitioners have been transferred and posted to different Departments. The petitioners have contended that as in terms of the impugned office order dated 4.7.1990 they would have separate seniority and line of promotion in the transferred Department, the action of the respondent no. 2 is arbitrary and discriminatory. The petitioners have further contended that by reason of the said transfer, they would lose chances of promotion to the executive cadre. 4. The respondents on the other hand, in their counter affidavit inter alia contended that the Company had the requisite jurisdiction to transfer an employee from one Department to another Department. The said provision of transfer reads as follows:- "Any workman shall be liable to be transferred from the works to any establishment of the company either at Bokaro Steel City or outside and shall also be liable to be transferred from one department to another or from one job to another. The said provision of transfer reads as follows:- "Any workman shall be liable to be transferred from the works to any establishment of the company either at Bokaro Steel City or outside and shall also be liable to be transferred from one department to another or from one job to another. Such transferred workmen will be entitled to such allowances and other amenities which may be applicable to other workmen in similar job; where the workman concerned is transferred. 5. The respondents have contended that by reason of the impugned orders of transfer, their chance of promotion were not marred in as much as they would be given time bound promotion. It was further contended that the consent of the petitioners were not necessary for being transferred from one Department to another Department. Further, it has been accepted that the petitioners of CWJC 1996/90R were asked for an option but despite the fact that they did not give their option to be transferred, the impugned orders of transfer were passed. 6. In a supplementary counter affidavit, it has been stated that due to reduction in the Inspection & Progress Department, some Inspectors and Inspecting Assistants were transferred to other Departments where there existed necessity of additional man power. It was further stated that the nature of the job in the new Department is not inconsistent with the nature of job in the parent department of the petitioners and according to the respondents, the technical background of the petitioners would be of considerable help in the matter of discharge of their duties in the New Department. It was further stated that the matter was thoroughly discussed with the Deputy Labour Commissioner and some of the Unions had also agreed to such transfer. 7. The petitioners in reply contended that it is not correct to state that the volume of work in the Inspection and Progress Department has been reduced, but in fact it has considerably been increased. For this purpose my attention was drawn to a chart mentioned in. paragraph 3 of the reply to the counter affidavit which reads as follows ;- Sl. Items of work 1987-88 1988-89 1989-90 no. 1. No. of purchase 6129 6436 6776 orders received. 2. No. of Inspection 11942 12442 13363 certificate issued. 3. Value of items 14987 15225 19858 inspected (in lakhs of rupees.) 4. paragraph 3 of the reply to the counter affidavit which reads as follows ;- Sl. Items of work 1987-88 1988-89 1989-90 no. 1. No. of purchase 6129 6436 6776 orders received. 2. No. of Inspection 11942 12442 13363 certificate issued. 3. Value of items 14987 15225 19858 inspected (in lakhs of rupees.) 4. Value of GRN 9017 9118 12436" (Goods release note cleared) in lakhs of rupees. 8. It was further contended that while passing the order of transfer, no policy decision was followed and a pick and choose policy was adopted and in support of this contention my attention was drawn to the gradation list which is contained in Annexure-4 to the said reply, from a perusal whereof it would appear that the juniors have been allowed to remain in the Department whereas seniors have been transferred. It was further contended that the petitioners we re interviewed to enable them to exercise their options for their absorption in the Research and Control Laboratory but they went transferred to Internal Audit Department. It was further contended that the Deputy Labour Commissioner had no jurisdiction to give his approval with regard to the action of the Management in passing the impugned order. It was also contended that the petitioners are not members of any Union. 9. Mr. A.R. Sarangi appearing for the petitioner submitted that in the instant case the orders of transfer have been passed by the respondent company without any consent of the petitioners. According to the learned counsel, from a perusal of Annexure-3 to the writ application, it would appear that a Board was constituted for the purpose of interviewing various persons so as to consider the case, for absorption in the Research & Control Laboratory in the Works Division. Learned counsel also contended that the said letter together with the office order dated 4.7.1990 as contained Annexure-1 whereby and whereunder it has been stated that the petitioners would have separate seniority and line of promotion in the transferred department goes to show that they have been discriminated against. According to the learned counsel by reason of transfer to the other departments, the petitioners would lose chances of promotion to their detriment. According to the learned counsel by reason of transfer to the other departments, the petitioners would lose chances of promotion to their detriment. It was further submitted that in any event, if there had been reduction in the work load in the Inspection & Progress Department for inspection purposes, the theory of last come first go should have been adopted. According to the learned counsel, if such procedure was adopted, in such an event, the junior-most persons could have been transferred from the said Department to another department. Learned counsel in this connection has placed strong reliance upon Mohit Gupta v. The State of West Bengal and others reported in 1990 Lab. I.C. 453 and in M.P. Junior Engineer Association and Sangarsh Samiti and others v. State of Madhya Pradesh and another reported in 1990 Lab. I.C. 1616. 10. Mr. M.M. Banerjee appearing on behalf of the respondents, on the other hand, submitted that the action on the part of the respondents in transferring the petitioners cannot be said to be irrational or arbitrary. Learned counsel further submitted that the Management has a right to pass an order of transfer keeping in view the administrative exigencies as there had been a reduction in the work load in the Inspection & Progress Department, the impugned orders had to be passed in an administrative exigencies. 11. A transfer is an incident of service. However, it is well known that by reason of such transfer, a person cannot be transferred from one cadre to another cadre without his consent unless there exists provision therefor. It has not been denied by the respondents that the Inspection and Progress Department is a separate: and distinct department from Internal Audit Department or Research and Control Laboratory of the Department of Operating (Inspection). From the impugned orders, it is evident that the petitioners were transferred to the Inspection Wing of Research and Control Department and in Stock Verification Section of the Internal Audit Department in the parallel grade. From a perusal of Annexure-3 to the writ application, the veracity whereof is not disputed in this case, some of the petitioners were advised to appear before an Interview Board for the purpose of consideration of their case for absorption in Research and Control Laboratory under the Works Division. From a perusal of Annexure-3 to the writ application, the veracity whereof is not disputed in this case, some of the petitioners were advised to appear before an Interview Board for the purpose of consideration of their case for absorption in Research and Control Laboratory under the Works Division. As indicated hereinbefore, in the impugned orders dated 4.7.1990, it was mentioned:- "They will have their separate seniority and LOP in the Internal Audit Deptt. while deciding seniority at any point the existing policy regarding determination of seniority in respect of employees of Inspection & Progress department will be followed. They would, however, carry the benefit of eligibility regarding their service rendered in I & P department. The other terms and conditions contained in their original appointment order will remain unaltered. They stand released from the present place of posting w.e.f. the date of issue of this order." 12. Evidently, therefore, the petitioners have been transferred from one cadre to another cadre. 13. In Ganga Prasad Sharma v. Delhi High Court and others reported in 1976 Service Law Journal 750, it was held:- "Service under the State like service elsewhere, is essentially based on contract of service and is to be regulated by the terms and conditions embodied in the contract. In the case of service under the State such terms and conditions may be, and often ale supplemented by statutory rules, regulations as well as non-statutory instructions that may be framed or issued, as the case may be, from time to time, all of which bind the public servant either by virtue of the it statutory character or because of a declaration to which the public servant may subscribe. Subject to any provision to the contrary a public servant is liable to be transferred within the cadre and establishment. Unless there is a special provision in that behalf to the contrary, a civil servant is not liable to be transferred outside the cadre or the establishment except on deputation. He may, however, be transferred outside the cadre or establishment, otherwise then on deputation, only by his consent. Unless there is a special provision in that behalf to the contrary, a civil servant is not liable to be transferred outside the cadre or the establishment except on deputation. He may, however, be transferred outside the cadre or establishment, otherwise then on deputation, only by his consent. Such a transfer without his consent would ordinarily amount to unilateral change in the conditions of service and could be brought about only by statutory sanction." In Kunwar Bahadur v. State of Uttar Pradesh reported in 1979 Service Law Journal 700 it was held:- "Fundamental Rule 15 (a) lays down that a Government servant may be transferred from one post to another. This rule does not say that a Government servant may be transferred from one cadre to another." In Kanhaiya Lal v. State of Bihar and others reported in 1983 B.B.C.J. 187, a Division Bench of this Court held that transfer from one cadre to another cadre without the consent of the employee is not permissible. 14. Further ill this case, it appears that there exists a special condition of service to the effect that an employee would be liable to be transferred from one department to another department which necessarily means one cadre to another cadre. 15. However, in the case of the petitioners, it does not appear that they were transferred upon following of any guideline. Again in this case, it has not been stated as to on what basis the petitioners were transferred from their parent department. Although the petitioners have disputed the assertion of the respondent to the effect that there had been a reduction of the work load, this Court in exercise of its writ jurisdiction is not in a position to determine the said fact. 16. In B. Varadha Rao v. State of Karnataka and others reported in AIR 1986 SC 1955 , the Supreme Court stated the law thus :- "We agree with the view expressed by the learned Judges that transfer is always understood and construed as an incident of service. The words 'or other conditions of service' in juxtaposition to the preceding words 'denies or varies to his disadvantage his pay, allowances, pension in R. 19(1)(a) must be construed ejusdem generise. Any alteration in the conditions of service must result in prejudice to the Government servant and some disadvantage touching his pay, allowances, pension, seniority, promotion leave etc. The words 'or other conditions of service' in juxtaposition to the preceding words 'denies or varies to his disadvantage his pay, allowances, pension in R. 19(1)(a) must be construed ejusdem generise. Any alteration in the conditions of service must result in prejudice to the Government servant and some disadvantage touching his pay, allowances, pension, seniority, promotion leave etc. It is well understood that transfer of a Government Servant who is appointed to a particular cadre of transferable posts from one place to another is an ordinary incident of service and therefore does not result in any alteration of any of the conditions of service to his disadvantage." 17. By reason of the impugned orders as contained in Annexure-1 to the writ application, the petitioners were directed to be absorted. Such an absorption means loss of lien in the parent department. The respondent has not framed any rule with regard to absorption nor has framed any policy decision in relation thereto. In Kartar Singh v. State of Punjab reported in AIR 1990 P & H 1. it was held as follows:- "According to the meaning found fin Chamber's 20th Century Dictionary, the word 'absorption' means the act of absorbing and 'absorb' means, to suck in to swallow: to imbibe: to take in : to incorporate ; to take up and transform (energy) instead of transmitting or reflecting to engage wholly. According to Black's Law Dictionary 5th Edition, the word 'absorption' is explained as a term used in collective bargaining agreements, to provide seniority for union members, if employer's business is merged with another. Humphrey v. Moore 375 US 335, 84 S. Ct. 363, 369. According to the Dictionary of English Law by Sweet & Maxwell the word 'absorption' is equal to the word 'amalgamation', 'Amalgamation' has been explained to say that this takes place where two Incorporated companies or societies become united by one of them being merged in the other. Absorption thus has the effect of sucking and imbibing into what is originally existing. On absorption thus an employee becomes part and parcel of the department absorbing him and partakes the same colour and character of the existing employees of the department, classified as promotees direct appointees or transferees on the loss of his Identity." 18. Absorption thus has the effect of sucking and imbibing into what is originally existing. On absorption thus an employee becomes part and parcel of the department absorbing him and partakes the same colour and character of the existing employees of the department, classified as promotees direct appointees or transferees on the loss of his Identity." 18. In this case, therefore, not only petitioner would lose their lien, they may lose their seniority, in the sense, that their chances of promotion in the executive grade would be diminished to a great extent. Seniority is a civil right and if by reason of any omission on the part of the respondents, seniority of a person is affected, he is entitled to a notice. 19. In this case, the petitioners have, as noticed hereinbefore, contended that they would lose their seniority as also chances of promotion. It is true that mere chance of promotion is not a fundamental right. But in a case of this nature, where various persons had to be transferred from one department to another department and the exigency of work, it would be reasonable that a policy decision is evolved so that the employee so transferred does not suffer seniority and thereby a chance of promotion. 20. The petitioners have stated in the writ application that chance of promotion is 3 : 2 in the Inspection and Progress Department to which the petitioner belonged and it would be 1 : 11 in the Internal Audit Department and 1 : 7 in the Research and Control Laboratory. The statements made in paragraphs 23 to 25 of the writ application have not been specifically denied and it was merely contended that the said statements were wholly misconceived and without any basis and as such untenable. The facts and figures liven in the writ application have not been controverted in the counter affidavit and, thus, the statements made in the petition must be accepted. 21. The very fact that in their transferred department, the petitioners would have a separate line of promotion as also a separate seniority list, goes to show that they would be put to some disadvantage. 21. The very fact that in their transferred department, the petitioners would have a separate line of promotion as also a separate seniority list, goes to show that they would be put to some disadvantage. When a person is transferred from one Department to another department to his disadvantage, the same amounts to change in the conditions of service such a change in the conditions of service is not permissible in law unless the statutory conditions in this regard are fulfilled. The same can be done either by way of a tripartite agreement or by taking recourse to the provisions of section 9A of the Industrial Disputes Act. 22. In Mohit Gupta v. State of West Bengal, 1990 Labour & Industrial Cases 453, it was held that although assigning of duties to the employees in different departments is the discretion of the administration and the concerned employee will have no opinion in the matter but when an employee come in the same cadre they must be considered equally in the said cadre and no specia1 benefit can be given to any member thereof. 23. In M.P. Junior Engineering Association v. State of Madhya Pradesh reported in 1990 Lab I.C. 1616, the Supreme Court was considering a case of merger of M.P. Lift Irrigation Corporation in the Irrigation Department and in that context it was held :- "The assumption of the respondents that the cadre of JEs had ceased to exist long before the absorption of the present appellants into the Department is incorrect. As pointed out earlier, though the decision to abolish the cadre was taken in 1979 and the existing posts were converted into those of AEs/SEs on 27.5.1980, the cadre did not die, for the JEs of the Department who were then functioning continued to function as before until they were promoted in due course as AEs. It is also not correct to say that this crucial 'fact' had been overlooked at the time of passing the merger order of 8.10.1982. It is also not correct to say that this crucial 'fact' had been overlooked at the time of passing the merger order of 8.10.1982. On the contrary, the State was fully conscious of its earlier decision and the order of 8.10.1982, specifically mentions that the pots of STAs will be merged in the posts of JEs and an equivalent number of posts may be deemed to have been created in the dying cadre of Junior Engineers." The Supreme Court in that case held that as by reason of the action on the part of the State the Junior Engineers would lose their right of promotion and lose seniority, a grave injustice has been done to them by reason thereof and as such the impugned order be quashed and it was directed that the appellants were entitled to be considered for promotion as Assistant Engineers in the same manner and to the same extent as Junior Engineers of the State service 24. In Dr. Ms. O.Z. Hussain v. Union of India and others reported in AIR 1990 SC 311 , it was held:- "This Court, has on more than one occasion, pointed out that provision for promotion increases efficiency of the public service while stagnation reduces efficiency and makes the service ineffective. Promotion is thus a normal incidence of service. There too is no justification why while similarly placed officers in other Ministries would have the benefit of promotion, the non-medical A Group scientists in the establishment of Director, General of Health Services would be deprived of such advantage. In a Welfare State, it is necessary that there should be an efficient public service and, therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the Council and its members and provide promotional avenue for this category of officers. It is therefore necessary that on the model of rules framed by the Ministry of Science and Technology with such alterations as may be necessary, appropriate rules should be framed within four months from now providing promotional avenue for the A category scientists in the non-medical wing of the Directorate." 25. The respondent-company is a State within the meaning of Article 12 of the Constitution. Its employees, therefore, were entitled to equality in law and equal protection of law. The respondent-company is a State within the meaning of Article 12 of the Constitution. Its employees, therefore, were entitled to equality in law and equal protection of law. An action on the part of the State which violates the principles of equality before law and equal protection of law has to be quashed. 26. In the instant case, the respondents have not stated as to the basis or the policy decision in terms where of the impugned orders were passed. The petitioners' contention that they were interviewed for transfer to the Reaearch & Control Laboratory but despite the same, they were transferred to the Internal Audit Department has not been disputed. The respondent-company while passing the impugned orders purported to have acted by the advise of the Deputy Labour Commissioner and/or Union who have got no say in the matter. It is now well known that if an action is taken on the basis of advise given by any person who has no role to play in the matter of passing such order, under the law or otherwise, the same would amount to misdirection in law. 27. In this view of the matter, the decision of the respondent company cannot be said to be rational and, thus, must be held to be violative of Article 14 of the Constitution. 28. In the result, these writ applications are allowed and the orders contained in Annexure-1 to each of the writ applications are quashed. It is, however, made clear that the respondents shall be at liberty to take such suitable action as it may consider necessary in the administrative exigency upon formulation of a policy decision in this regard and in accordence wirh law. In the facts and circumstances of this case, there will be no order as to costs.