- (1.) SUDHIR Agarwal, J. Whether U. P. Rajya Vidyut Utpadan Nigam Limited Absorption Regulations, 2006 (hereinafter referred to as Regulations, 2006) framed by the U. P. Rajya Vidyut Utpadan Nigam is illegal, arbitrary and ultra vires is the question raised in the writ petition.
(2.) THE facts are not in dispute, but, to appreciate the controversy, may be narrated in brief, as under. In the State of Uttar Pradesh, generation, distribution and transmission of electrical energy upto 1989 was solely in the hands of the U. P. State Electricity Board (in short 'upseb'), a statutory body constituted under Section 5 of the Electricity Supply Act, 1948 (in short '1948 Act' ). With the expansion of the generation units, a Government company, namely, U. P. Rajya Vidyut Utpadan Nigam Limited (in short 'uprvunl') was incorporated under the Companies Act, 1956 in the year 1980. It is wholly owned by the State Government of Uttar Pradesh. Similarly, in 1985, another company, U. P. Jal Vidyut Nigam Limited (in short 'upjvnl") was incorporated which was also wholly owned by the State Government of U. P. A major power reform was brought into force in the year 1999 by the Legislature enacting U. P. Electricity Reforms Act, 1999 (in short "reforms Act, 1999") which was assented to by the President of India on 23- 6-1999 and published in U. P. Gazette (Extraordinary) on 7-7-1999. Section 13 of Reforms Act, 1999 provides for formation of a company namely U. P. Power Corporation Ltd. (in short 'uppcl') registered under the Companies Act, 1956, which is required to undertake planning and co-ordination in regard to transmission, to determine the electricity requirement in the State in consultation with the generation companies etc. and be a legal successor of UPSEB in relation to all power purchase and transmission agreements. Section 23 (1) of Reforms Act, 1999 provides that on and from the date specified in the Transfer Scheme prepared by the State Government to give effect to the objectives of the Act, all properties, interest, right and liabilities of the Board shall be vested in the State Government and, thereafter, shall re-vest in the UPPCL and generating companies in accordance with the Transfer Scheme so specified, on such terms and conditions as may be determined, by the State Government. Sub-section (7) of Section 23 relates to the transfer of the employees of UPSEB to UPPCL and other generating companies on notification of Transfer Scheme and reads as under : "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, on the vesting of properties, rights and liabilities in 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 recognized and taken into account for all purposes including the payment of any of 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. The State Government in exercise of the powers under Section 23 (1) & (2) of the U. P. Act of 1999 published U. P. Electricity Reforms Transfer Scheme, 2000 (hereinafter referred to as Transfer Scheme, 2000), which came into force on 14th January 2000. Under clause 4 and 5 of Transfer Scheme, 2000 all thermal generating undertakings stood transferred to UPRVUNL, hydro generating undertakings transferred to UPJVNL and the undertakings forming part of transmission and, distribution to UPPCL. Clause 6 of the scheme provides for transfer of the personnel of UPSEB to the aforesaid three companies and the relevant sub-clauses 6, 7, 8, 9 and 10 of clause 6 of the Transfer Scheme, 2000 are reproduced as under : (6) The personnel classified in Schedule -'h' and Schedule 'i' shall stand assigned to the service of UPRVUNL or UPJVNL and/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 of 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-7' 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 finalize the permanent absorption of the personnel specified 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 representation from the personnel specified in Schedules -'h' and Schedule -'i' in regard to 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, UJVNL and the State Government take a decision on the transfer and permanent absorption of the relevant personnel listed in Schedule -'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 Schedule -'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 may 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 and 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 (he 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.
(3.) UNDER Section 49 (1) of Reforms Act, 1999, the State Government was empowered to issue orders, if any difficulty arises, in giving effect to the provisions of the Act for a period not extending beyond 12 months. Sub-section (2) to Section 49 further provides that no order under sub-section (1) shall be made after expiration of a period of two years from the commencement of the Act. The Reforms Act, 1999 was amended in 2003 and in sub-section (1) of Section 49, the words "12 months" were substituted by "60 months" and under sub-section (2), "two years" were substituted by "five years". This amendment, therefore, has the effect of empowering the State Government to issue orders under Section 49 for a period of 5 years from the date of enforcement of the aforesaid Act. The Transfer Scheme, 2000 was also amended by U. P. Electricity Reforms Transfer Scheme, 2003 published on 9th June, 2003 and clause-9 of Transfer Scheme, 2000 was substituted by following provision : "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 five years from the date of the transfer. (2) At any time within a period of five years 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, interest, 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 five years from the date of 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. " The petitioner Nos. 2 and 3 were appointed as Assistant Engineers in UPSEB. On trifurcation, they opted for absorption in UPRVUNL. Accepting their option, UPPCL issued an office order dated 9-1-2001 notifying absorption of various employees in the three corporations and the petitioner Nos. 2 and 3 were shown to be absorbed in UPRVUNL. However, in view of the amendment of the Transfer Scheme vide notification dated 9-6-2003, the aforesaid absorption was treated to be provisional but after expiry of 5 years, another office order dated 24-10-2005 was published notifying final absorption of various officers in the said three companies and as a result thereof, the petitioner Nos. 2 and 3 stood finally absorbed in UPRVUNL. The petitioner No. 2 is working as Assistant Engineer though the petitioner No. 3 has been promoted to the post of Executive Engineer in UPRVUNL in December, 2005. Petitioner Nos. 1 and 4 were directly recruited as Assistant Engineer in UPRVUNL in January, 2001 and April 2003 and are working presently on the said post.;