High Court · 2009

Order

This writ petition has been instituted questioning the correctness of the orders passed by the 3rd respondent on 15-05-2008, allotting the writ petitioner to Atmakur division. The writ petitioner was working, at the relevant point of time, in Kavali division of the Southern Power Distribution Company of A.P. Limited as a Lineman. For better administrative and operational efficiency, several new divisions have been formulated. The new divisions came to be established at Pulivendula, Atmakur and Chirala, duly bifurcating the existing divisions at Kadapa, Kavali and Ongole, respectively. The State Government has accorded necessary approval for the bifurcation of the existing divisions and for creation of the new divisions, through their order dated 29-04-2006.

Orders have been, thus, passed formally bifurcating Kavali division and carving out Atmakur division therefrom. General instructions have been issued by the 1st respondent on 05-07-2006 calling for options from all the Operation and Manitenance (O & M) staff of the existing operation division at Kavali. It was pointed out that the options be invited by giving 15 days time for all the employees to exercise such options. It is also pointed out that all the sanctioned posts to be bifurcated between Kavali division and newly created at Atmakur division on “as is where is” basis of the jurisdictional limits of the respective divisions. It was further pointed out that the willing employees be transferred to the new divisions on administrative grounds and subject to the availability of posts in such a division, based upon seniority.

It was also made clear that in case any individual fails to communicate his choice within the time limit specified, it shall be deemed that he is willing to work in the division where the present post falls against which he is working. It was further made clear that in case of shortage of manpower, junior-most will be transferred to the new

division as per the requirement. The learned counsel for the petitioner Sri K. Muralidhar Reddy has also specifically drawn my attention to the fact that the options called in the prescribed format giving 15 days time limit are required to be finalized by 01-08-2006. However, the writ petitioner along with four others has come to be promoted as Line Inspector through the Proceedings dated 29-04-2006. Accordingly, the writ petitioner became a Line Inspector. Since, the writ petitioner is one of the junior-most, he was proposed to be allotted to Atmakur division. At that stage, the writ petitioner has approached this Court by instituting W.P.No.20391 of 2006, raising a dispute about the correctness of his proposed allotment to the new division at Atmakur. Entertaining that writ petition, this Court was pleased to pass an order on 28-09-2006, directing the respondents to maintain the status quo. That writ petition was contested by the respondents by pointing out that out of 39 posts available in the composite Kavali division and after the formation of Atmakur division, 8 posts of Line Inspectors, which are out of the territorial limits of Atmakur division, are needed to be filled in. 6 out of the Line Inspectors, who were working against those posts, have exercised their options for allotment to Kavali division. Since, they are seniors, it was needed to find a suitable replacement for them. In the process, 5 candidates, including this writ petitioner, has come to be proposed to be allotted to Atmakur division, inasmuch as, 3 Line Inspectors have opted for transfer and allotment to Atmakur division. It was further pointed out that including a senior to the writ petitioner, by name, Sri G. Ramakrishna, have been proposed for allotment to the new division at Atmakur and that the respondents have followed strictly the principle of allotting the junior-most candidates. Taking these aspects into account, a learned single Judge of this Court dismissed W.P.No.20391 of 2006, by the order dated 25- 03-2009, observing as under: “In the counter affidavit, junior most Line transfer respondents justified the petitioner’s transfer on the ground after formation of Atmakur division, eight Line Inspectors were required and that six Line Inspectors, who were seniors in the list, opted for Kavali division and therefore six junior most Line Inspectors were to be transferred to It is further the Atmakur division. stated that the petitioner is one of the Inspectors, become inevitable. Inasmuch as the option was subject to the condition that in case of shortage of manpower, junior most employee will be transferred to the new division, the impugned order of transfer cannot be said to suffer from any illegality or arbitrariness. At any rate, the petitioner was permitted to retain at Kavali division for more than 2 ½ years during the pendency of the writ petition. Therefore, he is not entitled to any further relief. Learned counsel for the petitioner, however, submitted academic year will come to an end the end of April, 2009, petitioner may be permitted to be retained at the existing place till April, 2009. Since I find this request reasonable, dismissed respondents to give effect to the petitioner’s transfer from 01.05.2009.” the writ petition permitting that as However, the writ petitioner has carried the matter by way of Appeal by instituting W.A.No.550 of 2009. A Division Bench passed an order on 23-04-2009, granting liberty to the writ petitioner to make a representation to the respondents for his retention at Kavali division, within a period of two weeks and the respondents were directed to entertain and pass appropriate orders thereon and till such time, status quo was ordered to be maintained. Accordingly, the writ petitioner has submitted a representation on 01-05-2009, seeking for retention in Kavali division. That representation came to be disposed of by the 3rd respondent by his order passed in Memo dated 15-05-2009, rejecting his request for retention in Kavali division. The writ petitioner was, consequently, relieved on 16-05-2009 at Kavali sub-division of Kavali division, so as to enable him to join at Udayagiri sub- division of Atmakur division. The validity of this order came to be challenged in this writ petition. I have heard Sri K. Muralidhrar Reddy, learned counsel for the petitioner and Sri P.R. Balarami Reddy, learned Standing Counsel for the respondents. The learned counsel for the petitioner would strenuously urge that the exercise of allotting the writ petitioner to Atmakur division is made contrary to the guidelines formulated by the Southern Power Distribution Company of A.P. Limited, Tirupati, and communicated through their Memo dated 05-07-2006 and hence, the impugned order deserves to be set at naught. It is further pleaded that the writ petitioner is one of the senior-most employees working as Linemen in Kavali division. When the options were required to be exercised and instead of considering his candidature for allotment in Kavali division, the fact that he was promoted as Line Inspector on 29-07-2006, has been taken into consideration and account and on that basis, he was sought to be treated as one of the juniors in the category of Line Inspectors and hence, on that account also, impugned action of allotment of the writ petitioner to Atmakur division is wrong. Further, several developments that have taken place by way of according promotions to several Linemen in Kavali division as Line Inspectors, beyond the last date for exercising of options, namely, 20-07-2007, should not have been taken into consideration and hence, the writ petitioner shall not be construed as the junior-most Line Inspector for allocation to Atmakur division. It was also contended that no proper ascertainment of the posts has been carried out for retention in Kavali division as well as for allotment in the newly carved out Atmakur division. Without doing so, the question of allotment of candidates ought not to have been undertaken. It is further contended that while creating a new division at Atmakur, duly bifurcating the composite Kavali division, two new such divisions have been carved out at Pulivendula, Kavali and Chirala at Prakasam. Further, insofar as the allotment of candidates to Pulivendula and Chirala divisions is concerned, it is the 2nd respondent, Superintending Engineer, who has to finalize the entire allotment process, but contrary thereto, it is the 3rd respondent, Divisional Engineer at Kavali, who has passed the present order. It is further contended that there was no proper assessment of manpower requirement made and hence, the impugned action deserves to be interfered with. A detailed counter-affidavit has been filed in the matter contesting the veracity of the factual statement made by the writ petitioner. Before we proceed further, it should be noticed that the writ petitioner is one of the 5 persons, who came to be promoted as Line Inspectors through the Proceedings 29-07-2006 the Divisional Engineer (Operations), Kavali. He has accepted the said promotion and joined duty as Line Inspector on 30-07-

2006. It is asserted by the respondents that the writ petitioner has opted to be retained in Kavali division in the cadre of Line Inspector and his option has been received in the office of the 3rd respondent on 17- 08-2006. The impugned order, which has been exhibited as P-14 of the paper-book filed in support of the writ petition has adverted to this fact at Pages 55 and 56 as under: “ After joining the promotion post on 30.7.2006 Sri M. Chandrasekhar Rao exercised his option vide proforma for for permanent exercising option Kavali transfer Division…………………………………. Further Sri M. Chandrasekhar Rao has opted for Kavali Division in the cadre of the Line Inspector vide his option received in the Office dated 17.8.2006. Therefore, the stand that he continues incorrect and is not acceptable.” to be Lineman the same This assertion of fact has not been disputed by the writ petitioner. The writ petitioner has cryptically observed that he has exercised the option, when such options were called for, without elaborating as to the date on which such option has been exercised and as to whether he has exercised the option while working in the cadre of Lineman or in the cadre of Line Inspector. As per the statement of fact made by the respondents, the writ petitioner, having accepted his promotion as Line Inspector on 29-07-2006, and then exercised option for retention in Kavali division as Line Inspector, is bound to be treated as one of the junior-most Line Inspectors in the composite Kavali division. It is the case of the respondents that two special divisions of Atmakur and Udayagiri have been carved out from Kavali division and were formed into a new division known as ‘Atmakur division’. Out of 39 posts of Line Inspectors in the composite Kavali division, 8 posts of Line Inspectors are in existence in Atmakur divisionby the identification of such posts on the principle of ‘as is where is’ basis. Therefore, it is inevitable that 8 Line Inspectors will have to be allocated to the newly formed Atmakur division. Options of employees are required to be finalized taking into consideration the choice exercised by the candidates and if more number of candidates have preferred retention in Kavali division, the junior-most candidates are bound to be allocated to the newly formed Atmakur division. Since, 3 candidates have opted on their own for Atmakur division, the job of the respondents is to find out 5 more candidates for allotment to Atmakur division. They have strictly adhered to the principle of seniority of Line Inspectors and picked up 5 candidates from the bottom of the list and the writ petitioner is one of those 5. Some of them happened to be juniors to him, while Sri G. Ramakrishna is a senior to him in service. It is, therefore, crystal clear that the respondents have not departed from the principle of following the order of seniority in the matter of allocation of candidates in the cadre of Line Inspector to the newly formed Atmakur division. I, therefore, do not find any illegality committed by the respondents in that respect. The learned counsel for the petitioner has contended that the guidelines circulated by the Southern Power Distribution Company of A.P. Limited, 05-07-2006, have not been followed properly by the respondents and that they have taken into account and consideration the events that have taken place after the last date for exercising such option. The guidelines circulated through Memo dated 05-07-2006, undoubtedly, require options to be called for, giving 15 days time to the employees. Options, therefore, are required to be called for by the competent authority giving 15 days time to the employees to exercise options and that does not mean that the 15 days period should be reckoned from 05-07-2006. I, therefore, do not agree with the contention of the learned counsel for the petitioner that the last date for exercise of options is 20-07-2006, by reckoning the 15 days period from 05-07-2006. Similarly, the learned counsel for the petitioner has also stressed that the guideline contained in the Memo dated 05-07-2006, requiring the option process to be finalized by 01-08-2006, has been breached and hence, the options cannot be finalized by the respondents after 01-08-2006. I am afraid, this contention canvassed by the learned counsel the petitioner is without any substance, for, what the instructions contained in the Memo dated 05-07-2006, attempted to do, was to secure finalization of the options in quick time by drawing up a rigid time schedule. It was hoped that the options would be called for from the employees promptly and that the finalization of the option exercise would also be completed withpromptitude by 01-08-2006. If, for any reasons, the options are not called for or could not be finalized by 01-08-2006, it does not prevent the respondents finalizing the same subsequent thereto. It is well to remember that finalization of the options is not a statutory exercise, but a mere administrative exercise. If, for valid reasons, the options could not be finalized by 01-08-2006, the respondents do not become functus officio and become disentitled to deal the options from 02-08-2006 onwards. The appropriate way to understand the guidelines contained in the Memo dated 05-07-2006 is that, they intended the administrative agencies not to drag the affair of finalizing the options, unnecessarily, for long periods and to avoid uncertainty in that regard in the minds of the employees, diected them to finalise the same by 01-08-2006. I, therefore, do not find any merit in the contention of Sri K. Muralidhar Reddy, learned counsel for the petitioner. It is well to remember that the writ petitioner himself appears to have exercised his option on or after 30- 07-2006, seeking retention in Kavali division in the cadre of Line Inspector, but not in the cadre of Lineman and that the option exercised by the writ petitioner has been received by the 3rd respondent only on 17-08-2006. The learned counsel for the writ petitioner has contended that several candidates came to be promoted in the interregnum as Line Inspectors and hence, the writ petitioner cannot be construed as one of the junior-most in the cadre of Line Inspectors and that he instead, should be treated as one of the seniors. Alternatively, it was pleaded by filing an additional affidavit that, few more candidates are likely to retire from service on attaining the age of superannuation as Line Inspectors in Kavali division and hence, his option for retention in Kavali division as Line Inspector deserves to be considered in view of the fragile health condition of his wife, which requires constant medical attention. The option is sought to be finalized with reference to the Line Inspectors, who were working as at August

2006. He was, undoubtedly, one of the junior most of the 39 Line Inspectors in service, then. As was already noticed supra, Sri G. Ramakrishna, who is senior to him in service, has also been picked up for allotment to Atmakur division. Therefore, no special treatment is accorded to anyone in the matter of allotment to Atmakur division. The principle of seniority has been strictly adhered to and followed. At any rate, there is no material on record to demonstrate to the contra. The fact that several vacancies, subsequently, have arisen in Kavali division and the former juniors to the writ petitioner in the cadre of Lineman have been promoted as Line Inspectors, is a factor, which cannot be taken into consideration and account. All such persons came to be allotted as Linemen to Kavali division, thereafter, have earned their promotion as Line Inspectors in Kavali division. Similarly, if there is any vacancy of Line Inspector in Atmakur division, Linemen allocated in Atmakur division would have also earned a similar promotion there. Therefore, that cannot be a factor to be taken into account and consideration for setting aside the impugned order. The learned counsel for the writ petitioner tried to lay stress that the principles of allocation to Atmakur division are completely faulty and that the 3rd respondent has finalized the same instead of the 2nd respondent, Superintending Engineer. It is well to remember that the exercise of finalizing the options is not having any statutory flavor. It is purely an administrative exercise. A new unit of appointment has been carved out by creating a division at Atmakur. Atmakur was part of Kavali division earlier and by elevating it from the status of a sub-division to that of a division, allocation of the employees has come to be undertaken. Employability partakes with it, the right of the employer to utilize the services of its employees as per the manpower requirement conceived by it. But however, the 1st respondent, being a Public authority, its functioning has got to be not only transparent, but must be in conformity with the principles of fairplay in action and the same should be arbitrary-free. The respondents shall not indulge in acts of discretion by picking up and choosing personnel in that process. So long as no such vice has been demonstrated to have taken place in the matter of allocation of the personnel, such an administrative exercise cannot be faulted. I, therefore, do not find any merit in the contentions canvassed by the writ petitioner in the above writ petition. However, the writ petitioner points out that his wife requires constant medical attention and that such facilities are not available in the Atmakur division. That is a factor, which can be taken note of by the respondents. The rejection of the contentions of the writ petitioners, does not disentitle the respondents from considering the request of the writ petitioner for a transfer to Kavali division at any later point of time. The same will be addressed on its merits. For the aforesaid reasons, there is no merit in the writ petition and accordingly, the same is dismissed at the stage of admission. No costs. -------------------------------- Nooty Ramamohana Rao, J 21st July2009. Mrk