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Allahabad High Court · body

2018 DIGILAW 309 (ALL)

KRISHNA CHANDRA BAJPAI v. STATE OF U. P.

2018-02-06

VIVEK CHAUDHARY

body2018
JUDGMENT Hon’ble Vivek Chaudhary, J.—Heard Ms. Pushpila Bisht, Sri Ram Raj, Sri Anurag Mishra, Sri Brijesh Kumar Shukla, Sri Umesh Kumar Srivastava, Sri Rahul Srivastava, Sri Shachindra Pratap Singh and Sri Mayankar Singh learned counsels for the petitioners. Sri Jaideep Narain Mathur, learned Senior Counsel, Sri Amit K.Singh Bhaduaria, Sri M.P. Yadav, Sri Sandeep Dixit, Sri Vishal Singh, Sri Sanchit S.Asthana, Sri A.K.Bhadauria, Sri M.P.Yadav, Sri Upendra Singh, learned counsels for the respondents and learned Standing Counsel for the State. 2. Petitioners, in present writ petitions, have prayed for quashing of Minutes of 118th Meeting dated 1.4.2006 of UPPCL to the extent it fixed the date of absorption of the employees of the Cooperative Electricity Supply Society Ltd. Lucknow (CESS) with U.P. Power Corporation Ltd. (UPPCL), office memorandum/order dated 27.4.2016 in compliance of the aforesaid Board’s resolution and direction for payment of pension etc. at par with the employees of UPSEB. 3. Facts of case are that for the purposes of distribution of electricity for six blocks of district Lucknow, namely Mal, Malihabad, Kakori, Sarojini Nagar, Mohanlalganj and Gosaiganj, a society namely Cooperative Electricity Supply Society Ltd. Lucknow(CESS) was formed in the year 1970, under the provisions of U.P. Cooperative Societies Act, 1965. In the said society, Government of U.P. had 52.5 lakh of share and share of consumers was 48.65 lakh and thus, CESS was instrumentality of State of U.P. and was also given all such benefits under the Sales Tax Act etc. CESS was to supply electricity in the given rural area of Lucknow and it was duly authorized for the said purposes. For effective administration and working of CESS a large number of employees, including petitioners, were appointed in CESS on different posts. For nearly 20 years, CESS duly performed and fulfilled the purposes for which it was formed. On 17th February, 1997, Secretary of CESS passed an order for application and implementation of a Provident Fund and Pension Scheme in CESS. On 12th March, 1997, Secretary of CESS, informed Uttar Pradesh State Electricity Board (UPSEB) that a decision to implement pension scheme in CESS stands taken and the scheme, as applicable in UPSEB, would be implemented in CESS also. Before it could be implemented a decision was also taken to close down CESS and its entire work being taken over by UPSEB. Before it could be implemented a decision was also taken to close down CESS and its entire work being taken over by UPSEB. On 3rd April, 1997, a High Power Committee, consisting of Secretary, Department of Cooperative, State of U.P.; Secretary, Department of Power, State of U.P.; District Magistrate, Lucknow; Member Distribution, UPSEB, Lucknow; Additional Registrar (Administration), Cooperative Societies, U.P.; Secretary, CESS and other officers, took a decision and required the employees of CESS to start working in UPSEB. The said decision further provided that ultimately regular employees of CESS would be absorbed in UPSEB. On 15.4.1997 itself, Government orders were issued, constituting a team, to transfer the assets and liabilities of CESS to UPSEB. On 23-4-1997, Secretary, UPSEB also issued direction to the Executive Engineer, UPSEB to discharge all duties of CESS. A consequential order dated 25.4.1997, was also issued directing that employees of CESS shall work under instructions of their officers in UPSEB. Immediately on 25.4.1997 itself, Executive Engineer, Electricity Distribution Division,UPSEB Lucknow took charge of the work of CESS. Employees of CESS, thus immediately started working in UPSEB and, for all practical purposes, became the employees of UPSEB and their salary and all other dues were also henceforth paid by UPSEB. 4. Since it was only proposed, but was not implemented, thus there was no pension scheme applicable on the employees of CESS, while the same being available and applicable on the employees of UPSEB. On 16.12.1998, to remove the said anomaly, UPSEB allotted G.P.F. account numbers to erstwhile employees of CESS also. Thus petitioners were also duly allotted G.P.F. numbers and regular Provident Fund deductions were also made from the salaries of these employees. 5. In the year, 1999, State Legislature passed the U.P. Electricity Reforms Act, 1999, (U.P. Act No. 24 of 1999)(hereinafter referred to the Act of 1999). The said Act was notified and came into force on 14.1.2000. Relevant provisions of the said Act, for the purpose of decision of present case, Section 13 and 23, are quoted below : “13 (1) For the purpose of procurement, transmission and supply of electricity, a company by the name of the Uttar Pradesh Power Corporation Limited shall be formed and registered under the Companies Act, 1956 as soon as may be after the commencement of this Act by the State Government. (2) The Power Corporation shall undertake Planning and co-ordination in regard to transmission and shall determine the electricity requirements in the State in consultation with the generation companies, the State Government, categories States, the commission, the Regional Electricity Board, the Central Electricity Regulatory Commissionable the and the Central Electricity Authority. (3) The Power Corporation shall, be provisional licensee for transmission and supply of electricity with in the state until the grant of license by the Commission; be responsible for transmission system operations; be the legal successor of the Board in relation to all power purchase and transmission agreements entered into by the Board with generating and transmission companies including those owned or controlled by the Central Government; and undertaken such other functions as may be required under the license. (4) Upon the grant of license to it under Section 15, the power Corporation shall have such powers and discharge such duties and perform such functions of the Board under the Indian Electricity Act,1910 and the Electricity (Supply) Act, 1948 or the rules made hereunder as may be specified by the commission in the license. (5) the Commission may, in consultation with the Power Corporation grant license also to a company subsidiary to the Power Corporation. CHAPTER-VI REORGANIZATION OF THE ELECTRICITY INDUSTRY Transfer of the Board’s Properties, powers, functions, duties and personnel 23.(1) On and from the date specified in a transfer scheme, prepared and notified by the State Government to give effect to the objects of this Act, hereinafter referred to as the appointed date in this Act, all properties, and all interests, rights and liabilities of the Board therein shall vest in the State Government. (2) The properties, interest, rights and liabilities vested in the State Government under sub-section (1), shall be revested by the State Government in the Power Corporation and in a generating company in accordance with the transfer scheme so notified alongwith such other property, interest, rights and liabilities of the State Government as may be specified in such scheme, on such terms and conditions as may be determined by the State Government. (3) In addition to the rights and powers of the Power Corporation as specified in Chapter IV of this Act, such of the rights and powers exercisable by the Board under the Electricity (Supply) Act, 1948 as the State Government may, by notification, specify shall be exercisable by the Power Corporation or the generating company, as the case may be, for the purposes of performing the functions and discharging the duties under the said Act of 1948. (4) The State Government may, after consultation with the generating company or the Power Corporation, hereinafter referred to in this section as transferor, may, require transferor to draw up a transfer scheme to vest in a person hereinafter referred to in this section as transferee, any of the functions including distribution function, property, interest, right or liability which may have been vested in the transferor under this section and notify the same as statutory transfer scheme under this Act. The transfer scheme to be notified under this sub-section shall have the same effect as the transfer scheme under sub-section (2). (5) Where, - (a) a transfer scheme involves the transfer of any property or right in favour of any person or undertaking not wholly owned by the State Government, the scheme shall give effect to the transfer only for fair value to be paid by the transferee to the transferor; (b) a transaction of any description is made in pursuance of a transfer scheme, it shall be binding on all persons including third parties, even if such persons have not consented to it. (6) A transfer scheme may,— (a) define the property, interest, rights and liabilities to be allocated (i) by specifying the property, rights and liabilities; (ii) by referring to all the properties, interests, rights and liabilities comprising a specified part of the transferor’s undertaking; or (iii) partly in one way and partly in the other; (b) provide that the rights or liabilities specified in the scheme shall be enforceable by or against the transferor or the transferee; (c) impose on the transferee an obligation to enter into such written agreements with or execute such other instruments in favour of any other transferee as may be specified in the scheme; and (d) make such supplemental, incidental and consequential provisions as the transferor may consider appropriate including provisions specifying the order in which any transfer or transaction shall take effect. (7) The State Government may provide in any of the transfer schemes framed under this section for the transfer of personnel to the Power Corporation or a company subsidiary to the Power Corporation or a generating company, as a part of the undertakings transferred under this section and on such transfer the personnel shall hold office or service under the Power Corporation or a company subsidiary to it or a generating company, as the case may be, on terms and conditions that may be determined in accordance with the transfer scheme subject however to the following, namely: (a) terms and conditions of service of the personnel shall not be less favourable to the terms and conditions which were applicable to them immediately before the transfer; (b) the personnel shall have continuity of service in all respect; and (c) all benefits of service accrued before the transfer shall be fully recognised and taken into account for all purposes including the payment of any or all terminal benefits. Provided that, notwithstanding anything contained in any other law for the time being in force, and except as provided in the transfer scheme and in this Act, the transfer shall not confer any right on the personnel so transferred to any compensation or damages. Provided further that the posts in the Board of all the personnel whose services are to be so transferred shall stand abolished with effect from the date of transfer. Explanation : For the purposes of this section and the transfer scheme, the expression “personnel” means all persons who on the appointed date are the employees of the Board and who under the transfer scheme are given the option to join service under the control of the transferee. (8) All debts and obligations incurred, all contracts entered into and all matters and things done by, with or for the Board, including all securities, and guarantees given on behalf of the Board before the appointed date for a transfer scheme becomes effective shall, to the extent specified in the relevant transfer scheme, be deemed to have been incurred, entered into or done by, with or for the State Government or the concerned transferee and all suits or other legal proceedings instituted by or against the Board may be continued or instituted by or against the State Government or the concerned transferee, as the case may be. (9) Where a licensee is required to vest any part of his undertaking in another licensee under sub-section (4), the licence of the transferee may be amended under Section 19 or revoked under Section 18. (10) The Board shall cease to be charged with, and shall not perform the functions and duties specified by notification issued under sub-section (3) with regard to transfers made on or after the date of the said notification.” (emphasis added) 6. As per the aforesaid provisions, the State Government also notified a transfer scheme which was duly published in gazette on 14th January, 2000. Relevant clauses of the said scheme are as follows : 2. “(c)”Date of the transfer” means the date of commencement of this scheme for effecting transfer of properties, interest, rights and liabilities, proceedings or personnel to the relevant transferee in accordance whith this Transfer Scheme; (e)”Personnel”, mean workmen, employees, staff and offiecers of the board by whatever name called and includes those trainees, if any for the recruitment in the Board and those on duputation from the Board to other organizations or institutions. (h) “Transferee” means UPPCL or UPRVUNL or UPJVNL, in whom the undertaking or undertaking are vested in terms of the provisons of sub-sections (2) or (7) of Section 23. (2) Nothing in sub-clause (1) shall apply to rights, responsibilities, liabilities and obligations in respect of the personnel and personnel related matters including statutory dues such as salary, wages, gratuity, pension, provident fund, compensation terminal and retirement benefits and the same shall be dealt within the manner provided under clause 6 of this Scheme”. 6(1) The transfer of personnel, shall be subject to the terms and conditions contained in the sub-section (7) of Section 23. (2) For the purpose of this Scheme, the personnel shall stand classified as under : a. Personnel as detailed in Schedule-E’. These consist of personnel who, on the date of the transfer, are exclusively or primarily related to the thermal generating undertakings, which undertaking are described in Schedule-‘A’ and shall include personnel of Thermal Design and Thermal Monitoring Units. b. Personnel as detailed in Schedule ‘F’. These consist of personnel who on the date of the transfer are exclusively or primarily related to the hydro generating undertakings, as detailed in Schedule -’B’ c. Personnel as detailed in Schedule ‘G’. b. Personnel as detailed in Schedule ‘F’. These consist of personnel who on the date of the transfer are exclusively or primarily related to the hydro generating undertakings, as detailed in Schedule -’B’ c. Personnel as detailed in Schedule ‘G’. These consist of personnel who on the date of the transfer, are exclusively or primarily related to the transmission and distribution undertakings, as detailed in Schedule -’C’ d. Common cadre personnel as detailed in Schedule ‘H’. These are engineers and officers of the Board as on the date of the transfer who are or have been subjected to posting both in generation (thermal or hydro), transmission or distribution or any other undertaking of the Board under relevant service regulations and whose service in the Board on the date of the transfer were not segregated exclusively or primarily either for generation (thermal and hydro) or for transmission and distribution unlike in the case of personnel specified in Schedule -’E’ Schedule ‘F’ and Schedule ‘G’. e. The personnel of other common services including head office personnel as specified in Schedule ‘I’ comprising of those rendering service commonly for generation, transmission, distribution or any other undertakings of the Board and whose services in the Board as on the date of the transfer are not exclusively or primarily related to the undertakings specified in Schedule ‘A’ or Schedule ‘B’ or Schedule ‘C’ and shall also include personnel who are not covered in Schedule ‘E’, Schedule ‘F’, Schedule ‘G’ and Schedule ‘H’. (3) The personnel classified in Schedule -E shall stand transferred to and absorbed in UPRVUNL on as is where is basis, namely, that they will continue to serve in the place where they are posted on the date of the transfer and they will become an employee of UPRVUNL. (4) The personnel classified in Schedule -F shall stand transferred to and absorbed in UPJVNL on as is where is basis, namely, that they will continue to serve in the place where they are posted on the date of the transfer and they will become an employee of UPJVNL. (5)The personnel classified in Schedule -G shall transferred to and absorbed in UPPCL on as is where is basis, namely, that they will continue to serve in the place where they are posted on the date of the transfer and they will become an employee of UPPCL. (5)The personnel classified in Schedule -G shall transferred to and absorbed in UPPCL on as is where is basis, namely, that they will continue to serve in the place where they are posted on the date of the transfer and they will become an employee of UPPCL. (6) The personnel classified in Schedules -’H’ and Schedule -’T’ shall stand assigned to the service of UPRVUNL or UPPCL on as is where is basis, namely, that they will continue to serve in the place where they are posted on the date of the transfer subject to the following terms and conditions: (i) The assignment shall be on a provisional basis till they are absorbed in the service of UPRVUNL or UPJVNL or UPPCL, as the case may be, in accordance with the provisions of this Scheme. (ii)UPPCL shall be the controlling employer in the case of all such personnel specified in Schedules-’H’ and Schedule-’I’ till their permanent absorption in UPRVUNL or UPJVNL or UPPCL as the case may be, in accordance with this Scheme. (iii) UPPCL shall in consultation with UPRVUNL, UPJVNL and the State Government finalise the permanent absorption of the personnel sprcified in Schedules-’H’ and Schedule -’I’ in UPRVUNL or UPJVNL or UPPCL taking into account the suitability, ability and experience of the personnel, number and nature of the vacancies and other relevant factors and issue appropriate orders for such permanent absorption within the provisional period provided in clause 9. (iv) For the purpose of item (iii) UPPCL shall, in consultation with UPRVUNL, UPJVNL and the State Government constitute a Committee within two months from the date of the transfer consisting of the nominees not below the rank of Chief Engineer of UPPCL, UPRVUNL and UPJVNL to receive representations from the personnel specified in Schedules -’H’ and Schedule -’I’ in regard their transfer and absorption in UPPCL, UPRVUNL or UPJVNL and to make recommendation on such transfer and absorption within such time as UPPCL may prescribe for the purpose. (v) UPPCL shall in consultation with UPRVUNL, UPJVNL and the State Government take a decision on the transfer and permanent absorption of the relevant personnel listed in Schedules -’H’ and Schedule-’I’ to UPPCL, UPRVUNL and UPJVNL taking into account the recommendation of the Committee appointed for the purpose. (v) UPPCL shall in consultation with UPRVUNL, UPJVNL and the State Government take a decision on the transfer and permanent absorption of the relevant personnel listed in Schedules -’H’ and Schedule-’I’ to UPPCL, UPRVUNL and UPJVNL taking into account the recommendation of the Committee appointed for the purpose. (7) Upon the finalisation and issue of orders in terms of the sub-clause (6) the personnel specified in Schedules -’H’ and Schedule-’I’ shall form part of the service of the Transferee concerned, namely, UPPCL, UPRVUNL and UPJVNL, as the case may be, in the post, scale of pay or seniority in accordance with the orders that my be issued by UPPCL. (8) The committee appointed in accordance with sub-clause (6) shall also receive representations from the personnel listed in Schedule -E Schedule F and Schedule G in regard to any grievance on the permanent absorption in UPRVUNL, UPJVNL or UPPCL as the case may be and make recommendation to UPRVUNL, UPJVNL and UPPCL in regard to such matters. (9) The transfer of personnel to the Transferee shall be subject to any orders that may be passed by the Courts or Tribunals in any of the proceedings pending on the date of the transfer. (10) Subject to the provisions of the Act and this Scheme, the Transferee shall frame regulations governing the conditions of service of personnel transferred to the transferee under this Scheme and till such time, the existing service conditions of the Board shall mutatis mutandis apply. (11) In respect of all statutoryand other schemes and employment related matters including the provident fund, gratuity fund, person and any other superannuation fund or any other special fund created or existing for the benefit of the personnel, the relevant Transferee shall stand substituted for the Board for all purposes and all the rights, powers and obligations of the Board in relation to any and all such matters shall become those of the Transferee concerned and the services of the personnel shall be treated as having been continuous for the purpose of the application of this sub-clause. (12)(a) The State Government shall make appropriate arrangements in regard to the funding of the pension funds and other personnel related funds to the extent they are unfunded on the date of the transfer of the Personnel from the Board including for the due payment of the amounts to personnel who retire after the date of the transfer by the respective entities to which these personnel are transferred till such time the appropriate arrangements are made. (b) The State Government shall make appropriate arrangements in regard to the funding and due payment of the terminal benefits to the existing pensioners of the Board as on the date of the transfer and till such arrangements are made the payment falling due shall be made by the UPPCL, subject to such adjustments as may be decided between the State Government and the UPPCL. For the purpose of this sub-clause the term- (i) Existing Pensioner” means all the persons eligible for the pension as on the date of the transfer form the Board and shall include family members of the personnel as per the applicable, Scheme and (ii) "Terminal Benefits” means the gratuity, pensions, dearness and other applicable relief, medical benefit, concessional rate of electricity and other applicable benefits including the right to have the appropriate revisions in the above benefits consistent with the practice that were prevalent in the Board. (c) Without prejudice to the provisions of item (a) and item (b) above, the proceeds, received in cash (i.e. other than by way of of adjustment or exchange) on the sale or dis-investment of interest in any of the Undertakings by the State Government or UPPCL or UPRVUNL or UPJVNL as the case may be, shall also be first utilized towards funding the unfunded pension, GPF and other terminal benefits of the Personnel and Existing Pensioners. (13) All proceedings including disciplinary proceedings pending against the personnel prior to the date of the transfer from the Board to the Transferee or from such Transferee to another Transferee, as the case may be, or which may relate to misconduct, lapses or acts of commission or omission committed before the date of the transfer, shall not abate and may be continued by the relevant Transferee. Provided that in the case of all the personnel specified in Schedules - H and Schedule -I such proceeding shall be proceeded with and decided by UPPCL till the final orders are issued in regard to their permanent absorption in terms of this Scheme and thereafter by the concerned Transferee. (14) UPPCL shall provide to UPRVUNL and UPJVNL the funds required by them to meet the obligation to pay the personnel the retirement benefits till UPRVUNL and UPJVNL are in a position to make appropriate arrangements to meet such obligation. UPRVUNL and UPJVNL shall be liable to repay the amount so advanced by UPPCL on such terms and conditions as the State Government may by an order specify. (15) The personnel transferred to UPPCL or UPRVUNL or UPJVNL, as the case may be, shall be deemed to have entered into an agreement with the respective companies or their successor entities to repay loans, advances and other sums due or otherwise perform obligations undertaken by them to the Board which remain outstanding as on the date of the transfer, on the same terms and conditions as contained in the arrangement with the Board. (16) Not with standing anything contained in this Scheme all personnel of the State Government or the Central Government working under the Board who are assigned electricity generation, transmission, distribution and supply related work of the Board shall stand reverted to their respective department in the State Government or the Central Government, as the case may be. 7. Upon the transfer being effected in accordance with the provisions of the Act and this Scheme, the rights and obligations of all persons shall be restricted to the Transferee to whom they are transferred to and not with standing anything to the contrary contained in any deed, documents, instruments, agreements or arrangements which such person has with the Board, he shall not claim any right or interest against the State Government Board or the Transferor or any other Transferee. 8. 8. (a) All Proceedings of whatever nature by or against the Board pending on the date of the transfer shall not abate or discontinue or otherwise in any way perjudical be affected by reason of vesting or re-vesting of the transfer scheme mentioned in the Act and in this Scheme but the proceedings may be continued, prosecuted and enforced by or against the Government of after the transfer of the Undertakings, by or against the transferee to whom the same are assigned in accordance with the transfer scheme only. (b) Such proceedings may be continued in the same manner and to the same extent as it would or might have been continued, prosecuted and enforced by or against the Board if the transfers specified in this Scheme had not been made. 9. (1) The classification and transfer of Undertaking including personnel under this Scheme, unless otherwise specified in any order made by the State Government, shall be provisional and shall be final upon the expiry of one year from the date of the transfer. (2) At any time within a period of one year from the date of the transfer, the State Government may by order to be notified amend, vary, modify, add, delete or otherwise change terms and conditions of the transfer including items included in the transfer, and transfer such properties, interests, rights, liabilities, personnel and proceedings and forming part of an Undertaking of one Transferee to that of any other Transferee or to the State Government in such manner and on such terms and conditions as the State Government may consider appropriate. (3) On the expiry of the period of one year from the date of the transfer and subject to any directions given by the State Government, the transfer of undertakings, properties, interests rights, liabilities personnel and proceedings made in accordance with the Scheme shall become final.” 7. Thus, all the employees of UPSEB, including those who were earlier working for CESS, after publication of the scheme, started working in Uttar Pradesh Power Corporation Ltd. (UPPCL). On 30th March, 2000, the Deputy General Manager of UPPCL, issued a letter clarifying that the employees of CESS will be treated equally in the Corporation and their service conditions will also be the same as of employees working in UPSEB and thus, all employees will be treated as one unit. On 30th March, 2000, the Deputy General Manager of UPPCL, issued a letter clarifying that the employees of CESS will be treated equally in the Corporation and their service conditions will also be the same as of employees working in UPSEB and thus, all employees will be treated as one unit. UPPCL after its creation, also appointed employees by direct recruitment. Thus, their became two class of employees in UPPCL : (1) Employees appointed by UPPCL. (2) Employees transferred from UPSEB (UPPCL has later treated these employees of UPSEB in two classes namely (A) Employees of UPSEB (B) Employees of CESS). 8. On 16.8.2000, a direction was also issued by the Executive Engineer UPPCL, in pursuance to the orders of the Deputy General Manager (Headquarters), to prepare service books of the employees of CESS also. On 7.3.2001, another High Level Committee decided to give all facilities to the employees of CESS, which were given to employees of UPSEB. The petitioners were given GPF numbers by UPPCL also and GPF deductions from their salaries were also started. However, on 24.2.2003, Secretary of the U.P. Power Sector Employees Trust, passed an order cancelling allotment of G.P.F. account numbers which were allotted to CESS employees. Thus, for the first time, by order dated 24.2.2003, a dispute was raised by UPPCL, by treating erstwhile employees of CESS to be a separate unit. Till that date, neither UPSEB nor UPPCL treated the erstwhile employees of CESS as a separate unit. 9. Order dated 24.2.2003 was challenged by Employees Union in Writ Petition No. 2144(S/S) of 2004, Vidyut Mazdoor Panchayat, U.P. Lucknow v. State of U.P. and others. In the year 2005, some of the employees of CESS filed Writ Petition No. 5315(S/S) of 2005, for Mandamus commanding the respondents to pay pension to petitioners as is being paid to other employees of UPPCL and its lincensees. As and when, further orders were passed, the same were also challenged by amendment/modification in the writ petition. Thereafter some other petitions were also filed for similar and related reliefs which are also clubbed with this bunch. 10. As and when, further orders were passed, the same were also challenged by amendment/modification in the writ petition. Thereafter some other petitions were also filed for similar and related reliefs which are also clubbed with this bunch. 10. High Court, by its order dated 21.11.2008 passed in Writ Petition No. 2144(S/S) of 2004, directed the respondents to pass a reasoned and speaking order in accordance with Rules and in the light of Judgment of Hon’ble Supreme Court rendered in Civil Appeal No. 3765 of 2001, UPSEB v. Pooran Chandra Pandey. 11. Since, said order was not complied with, hence, Vidyut Mazdoor Panchyat, U.P. filed a contempt petition bearing Criminal Misc. Case No. 2294 of 2009, Vimal Kumar Mishra and others v. Navneet Sehgal, seeking compliance of the Judgment and order dated 21.11.2008. Pursuance to the said contempt, an order dated 27.11.2009 was passed by Respondent No. 2 providing that petitioners and similarly circumstanced employees (CESS employees) would be given all service benefits as are admissible and payable to regular employees of UPPCL. Thus the contempt petition was dropped. The said order 27.11.2009 remained effective merely for four years. Again, by order dated 4.1.2013, Respondent No. 2, passed a fresh order superseding/rescinding the earlier order dated 27.11.2009, stating that as merger of CESS with UPPCL had not been done finally and the matter was under active consideration, therefore, till the matter of merger of CESS was pending before the State Government and till a final decision is not taken by the State Government, employees of CESS would be governed by the 1970 bye-laws of CESS. 12. The High Court while hearing the matter in Writ Petition No. 5315(S/S) of 2005, Krishna Chandra Bajpai and others v. State of U.P. and others (leading case in present bunch), after considering the matter at length, passed a detailed interim order on 29.5.2013. Relevant portion of the said order is quoted below : “It is strange to notice that though the letter/order dated 27.11.2009 was passed by the U.P. Power Corporation in compliance of the order dated 21.11.2008, that too, only when the contempt proceedings were initiated for non compliance of the said judgement dated 21.11.2008, however, the said order itself has been superseded by the subsequent order dated 4.1.2013. In these circumstances, let personal affidavit by the Director (Personnel and Administration) of U.P. Power Corporation Ltd. be filed explaining as to under what circumstances the order dated 4.1.2013 has been passed whereby earlier order dated 27.11.2009 has been superseded. The Director in the aforesaid affidavit shall also explain as to whether passing of the order dated 4.1.2013 would not amount to committing contempt of the Court. The matter relating to absorption of employees of the Cooperative Society firstly with the U.P. Electricity Board and subsequently with U.P.Power Corporation has been pending since the year 1997, but no final decision has yet been taken. In these circumstances, the Court expects the decision to be taken at the earliest for the reason that many of the employees working in the Cooperative Society after serving U.P.State Electricity Board or U.P.Power Corporation have retired.” 13. On 31.7.2013, in its 100th Meeting, Board of Directors of UPPCL, passed a resolution whereby, order dated 04-1-2013 was withdrawn from the date of its issuance. Said resolution further recommended certain modifications in order dated 27.11.2009. Said recommendations were kept subject to approval by the High Court. In consequence of Board’s resolution, an order dated 5.8.2013 was also passed withdrawing earlier order dated 4.1.2013. 14. On 8.1.2014, an official Liquidator/Registrar, Cooperative, approved liquidation of CESS. In the liquidation order also, the Registrar notes that there was no member of CESS existing and it was closed since 1997(and no balance-sheet was available). Liquidation of CESS was sought w.e.f. 27.8.1997 as all employees of CESS, under order of State Government, were transferred to UPSEB. On 6.3.2014, again a High Power Committee was constituted to take a decision on absorption and restoration of GPF Accounts, pension facilities and other post retiral benefits of CESS employees, as were being made available to employees of UPPCL. On 14th March, 2014, Special Secretary considering the matter to be urgent, directed the Managing Director, UPPCL to decide the matter relating to pension and restoration of G.P.F. Accounts of Ex. Cess employees. On 6.12.2014, one such committee so constituted, recommended that CESS employees be absorbed as Ex. Cadre posts and they be given benefit of pension after reviving their G.P.F. accounts. 15. The 118th Meeting of Board of Directors of UPPCL was held on 1.4.2016 and in it Board resolved to absorb the CESS employees with UPPCL w.e.f. 8.1.2014. Cess employees. On 6.12.2014, one such committee so constituted, recommended that CESS employees be absorbed as Ex. Cadre posts and they be given benefit of pension after reviving their G.P.F. accounts. 15. The 118th Meeting of Board of Directors of UPPCL was held on 1.4.2016 and in it Board resolved to absorb the CESS employees with UPPCL w.e.f. 8.1.2014. Therefore, this absorption was not applied to CESS employees who retired/expired prior to 8-1-2014 and employees of CESS working regularly on 8-1-2014 were only absorbed in UPPCL. In consequence thereof, an office memorandum was issued on 27.4.2016, providing that date of absorption of employees of CESS in UPPCL would be 8.1.2014 and the employees who had retired/expired prior to said date, would not be absorbed and their services shall be treated to be governed by CESS Bye-Laws and orders, if any. 16. Ultimately, by office memorandum/order dated 27.4. 2016, only those CESS employees, who were in service on 8.1.2014, were absorbed in UPPCL and the employees who had retired or expired before that date, were not treated to be absorbed in UPPCL. Same stand was followed in 123rd Board Meeting. 17. These orders refusing to treat the petitioners as regular employees of U.P. Power Corporation Ltd. and refusing pensionary and other benefits were challenged by amendment in the pending petitions and some fresh petitions were also filed which forms the present bunch of writ petitions. 18. Submission of learned counsels for the petitioners is that petitioners have spent their lives serving, as rest of the employees of UPSEB and UPPCL, on the directions of the State Government. Their initial appointments were with CESS, which itself was a Government owned cooperative society, where decision was taken to grant them pension and other benefits. Thereafter, it was only on the instructions and decision of the State Government, that, they were sent to to the UPSEB as CESS was taken over by UPSEB, where they were treated at par with the employees of UPSEB. Thereafter, again, it was only under the scheme of the State Government duly published, that, they were sent to and worked for UPPCL. 19. Further submission of learned counsels for the petitioners is that throughout, from time to time, the State Government took a decision for shifting them and always assured and passed orders to grant them pensionary and other benefits, which are now being illegally and arbitrarily refused. 19. Further submission of learned counsels for the petitioners is that throughout, from time to time, the State Government took a decision for shifting them and always assured and passed orders to grant them pensionary and other benefits, which are now being illegally and arbitrarily refused. It was also argued that since they were granted all benefits under order passed in contempt proceedings hence it was not open for UPPCL to withdraw the said order/benefit. 20. On the other hand, learned counsels for the respondents,State as well as UPPCL, submit that petitioners have no right to get pensionary benefits. It was always open for the UPPCL to take a decision regarding petitioners who were CESS employees, and such a decision is taken by the UPPCL on 1.4.2016. Earlier decisions taken were contrary to law and have been repeatedly ignored/reversed by the UPPCL. Further emphasis is on the fact that since by the order dated 1.4.2016, the petitioners are finally absorbed, hence, there is no question of granting any benefit of pension or other benefits to the persons who had retired or expired prior to the date of absorption. 21. Facts of the case are not disputed between parties that the petitioners were initially appointed with CESS, where an order was passed on 17.2.1997 by the Secretary for implementation of the provident fund and pension schemes. The said scheme was same as applicable in UPSEB. Before the said decision could be implemented in April, 1997, another decision was taken by the State Government requiring the CESS employees to start the work in UPSEB. For all practical purposes, thereafter, CESS employees were treated as UPSEB employees. As their work and conduct was supervised by the officers of the UPSEB. and even their salaries were paid by the UPSEB. All assets and liabilities of CESS were also taken over, in the year 1997 only, by the UPSEB. It is also not disputed that treating the petitioners as employees of UPSEB., a process was started in the year 1998 for grant of G.P.F., and G.P.F. Accounts of some of the employees were also opened. Said CESS employees, for all practical purposes, were thus treated as employees of UPSEB. Meanwhile in the year, 2000 UPPCL came into existence and all the assets, liabilities and employees of UPSEB. were taken over by the UPPCL. Said CESS employees, for all practical purposes, were thus treated as employees of UPSEB. Meanwhile in the year, 2000 UPPCL came into existence and all the assets, liabilities and employees of UPSEB. were taken over by the UPPCL. Said take over was made under the provisions of the Electricity Reforms Act,1999. 22. It is in view of Section 6 readwith Section 23 and the notified scheme dated 14.1.2000 that services of petitioners were transferred from UPSEB to UPPCL. This is a statutory transfer under terms and conditions provided and notified by the gazette. It cannot be varied or changed either by the petitioners or by the officers or even by the UPPCL at its will. Clause 9 of Scheme provides the schedule to be provisional for a period of one year only, during which period State Government could modify the same and after one year it became final. A reading of the aforesaid Act/schemes clearly shows that UPPCL could only either appoint the persons directly or could take over the employees of UPSEB under the aforesaid notified scheme. There was no third way of getting the persons employed in UPPCL. 23. It is admitted that the petitioners are not directly appointed by the UPPCL and all these persons have come from UPSEB under the notified scheme. There is no provision, either under the Act of 1999 or under the scheme, whereby it could be found that any person other than personnel of UPSEB was transferred to the UPPCL. This aspect is neither disputed by the State Government nor by the UPPCL, either on facts or law, before this Court. 24. It is admitted by the respondents that they had taken all the personnel of UPSEB under the scheme. After taking over such personnel from UPSEB, it is surprising, as to how, UPPCL started claiming that these are employees of CESS and are not the employees of UPSEB. There is nothing on record by which learned counsel for the UPPCL could show that they could or have taken over the personnel of CESS under the Act/scheme as they were not authorized to take over any personnel except as per the provisions of the scheme. As per provision of the scheme, only those persons were to be taken over, who were employees of the UPSEB. As per provision of the scheme, only those persons were to be taken over, who were employees of the UPSEB. In case, they were employees of CESS, the UPPCL ought to have objected on the very day when they had joined their services in UPPCL, on the ground that they are not covered under the scheme. It is arbitrary and wrong on the part of the UPPCL to deny the rightful claim of the persons who were admitted in UPPCL as employees of UPSEB, with the rest of the UPSEB employees. The state Government and UPPCL treated them to be employees of UPSEB and on being treated such they were transferred to UPPCL and UPPCL also accepted them as such. Under Clause 9 of the scheme both the State Government or the UPPCL had a window of one year, to look into such aspects, and modify/get the scheme modified. The same was never availed and on expiry of one year from notification the scheme became final. The status of all employees absorbed under scheme from UPSEB could thereafter neither be disputed nor changed by UPPCL or State Government. The act of UPPCL,which is duly covered within the definition of “State”, is highly arbitrary and unjust. It is surprising that while the said benefit is given by the impugned order dated 27.4.2016 itself to those persons who continued with the UPPCL, merely because persons who had either retired or expired in between in 16 years, are denied the said benefit. The conduct of respondents is highly arbitrary and they have not acted fairly in the matter. Hon’ble Supreme Court has repeatedly held that State cannot act arbitrary for any ulterior purpose. Reference be made to Union of India and another v. International Trading Co. and others, (2003)5 SCC 437 . Para 15 of the said Judgment is quoted below : “15. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenet. The basic requirement of Article 14 is fairness in action by the state, and non-arbitrariness in essence and substance is the heart beat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for a discernible reasons, not whimsically for any ulterior purpose. The basic requirement of Article 14 is fairness in action by the state, and non-arbitrariness in essence and substance is the heart beat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for a discernible reasons, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualized than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness”. 25. There is yet another reason for which the impugned orders cannot stand. In furtherance of the order of the High Court dated 21.11.2008, when contempt proceedings were initiated, an order dated 27.11.2009 was passed by the UPPCL granting pension and other benefits to the petitioners in the writ petition. The writ petition was filed by the Union. Therefore, benefit of the order accrued to all the employees of CESS who came through UPSEB. Order dated 27.11.2009, notes that copy of the same was also sent to Standing Counsel at Lucknow. On the basis of said order, contempt proceedings were dropped as well as petitions were disposed of. Thus, the said order dated 27.11.2009 was also informed to the Court and a representation was made to the Court that since benefits have been given, contempt proceedings be dropped. When, a representation is made by the authority to the Court, it is not open for it to resile from the same. In case UPPCL was having any defect, only way available to it was to approach the Court and seek its leave to modify the order and only after leave of the Court, pass a fresh order. In the manner in which the UPPCL has conducted the entire exercise, amounts to deceive the Court. This is neither expected nor can be permitted to the state bodies. If such actions are permitted, the same would render administration of justice impossible. The Board of the UPPCL in its 100th Meeting dated 31.7.2013 after taking note of the order passed by the Court, passed a resolution that order dated 4.1.2013 to be withdrawn. This is neither expected nor can be permitted to the state bodies. If such actions are permitted, the same would render administration of justice impossible. The Board of the UPPCL in its 100th Meeting dated 31.7.2013 after taking note of the order passed by the Court, passed a resolution that order dated 4.1.2013 to be withdrawn. It further passed a resolution that CESS cadre be declared as EX. CESS Cadre and these persons may be given the same benefits which were available to the CESS employees. It was provided that the said order will be effective from 20.1.1999 i.e. the date mentioned by the high Court in contempt petition No. 230 of 1999. While passing the said order of making Ex. CESS Cadre, it was provided in the resolution that the same will be effective and orders will be passed only after consent of the high Court is taken regarding the same. Thus, UPPCL was fully aware that it cannot resile from the representation made to the High Court. Same was also noted in its 100th Board’s resolution dated 31.7.2013. It cannot be explained as to how in latter board’s resolution, without consent of the Court, representation made to the high Court could be withdrawn. Reference may be made to the following Judgments of the Hon’ble Supreme Court: 1. Rita Markandey v. Surjit Singh Arora, (1996) 6 SCC 14 . 2. Babu Ram Gupta v. Sudhir Bhasin, (1980) 3 SCC 47 3. Ram Narag v. Ramesh Narag and another, (2009) 17 SCC 609 . Relevant para in the case of Rita Markandey (supra) is quoted below : “12. Law is well-settled that if any party gives an undertaking to the Court to vacate the premises from which he is liable to be evicted under the orders of the Court and there is a clear and deliberate breach thereof it amounts to civil contempt but since, in the present case, the respondent did not file any undertaking as envisaged in the order of this Court the question of his being punished for breach thereof does not arise. However, in our considered view even in a case where no such undertaking is given, a party to a litigation may be held liable for such contempt if the Court is induced to a sanction a particular course of action or inaction on the basis of the representation of such a party and the Court ultimately finds that the party never intended to act on such representation or such representation was false.” (emphasis added) Relevant para in the case of Babu Ram Gupta (supra) is quoted below : “In fact, the reason why a breach of clear undertaking given to the Court amounts to contempt of Court is that the contemnor by making a false representation to the Court obtains a benefit for himself and if he fails to honour the undertaking, he plays a serious fraud on the Court itself and thereby obstructs the course of justice and brings into disrepute the judicial institution.” Relevant para in the case of Ram Narag (supra) is quoted below : “51. In order to maintain sanctity of the orders of the highest Court, it has become imperative that those who are guilty of deliberately disregarding the orders of the Court in a clandestine manner should be appropriately punished. The majesty of the Court and the rule of law can never be maintained unless this Court ensures meticulous compliance with its orders.” 26. In view of aforesaid, all the writ petitions succeed. The resolution of Board 118th and 123rd Meeting of UPPCL, to the extent it fixes a fresh date of absorption of the employees of CESS with UPPCL, is set aside and in consequence thereof, office memorandum/order dated 27.4.2016 is also set aside. 27. It is declared that all the petitioners and other similarly situated employees of CESS, who were absorbed in UPPCL under the scheme notified, shall be treated to be absorbed under UPPCL as employees of UPSEB and shall be given all benefits as available to the employees of UPSEB, including pension and G.P.F. 28. With the aforesaid, all the writ petitions are allowed.