# Anupam Srivastava & Ors v. U.P. Power Corporation Ltd. & Ors

- **Citation:** (2024) 8 ILRA 357
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-20
- **Case number:** Writ-A No. 10189 of 2024
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anupam-srivastava-ors-v-u-p-power-corporation-ltd-ors-52328
- **Pages:** 14

## Headnote

A. Service law - Transfer - UP St.
Electricity Reforms Transfer Scheme, 2000
- Clause 6 (10) - Transfers, general in
nature - Executive Officers and and
Executive
Assistant
in
Purvanchal
Electricity Distribution Cooperation Ltd.
were
transferred
from
one
zone
to
another zone - Transfer order merely
mentions
the
designation
of
the
employees transferred and the name of
offices
from
where they
have
been
transferred to another zone - Legality
challenged
-
Earlier
Circular
dated
11.09.2018, which did not permit transfer
of an employee from one circle to another
circle, was later on superseded vide
circular dated 03.06.2019 and 22.07.2023
-
Subsequent
circulars
were
not
challenged - Effect - Held, if the letter
issued
on
22.07.2023
enforcing
the
transfer
policy
2019-2020
is
not
questioned then this Court cannot go into
the question of legality of such transfer
policy
-
It
was
not
necessary
for
corporation to have framed any statutory
rules or regulations and the corporation,
therefore, could do so by way of issuing
executive instructions. It is not the case of
petitioners
that
in
the
previous
establishment when it was known as U.P.
St. Electricity Board the employees were
not transferable, if the employees were
transferable then within the DISCOM the
distribution
company,
I
see
no
justification to hold that transfers inter
circle is bad. (Para 31, 35 and 39)

B. Constitution of India - Article 226 -
Writ - Judicial Review - Transfer matter -
Scope of interference - Held, scope of
judicial review in matters of transfer is
very Ltd. as the transfer has been held to
be incident of service and those who are
working on transferable post can of
course, be transferred. (Para 42)

Writ disposed of. (E-1)

List of Cases cited:

## Text

_Characters 0–39,935 of 47,756. This is a partial read: ask again with offset=39935 for what follows._

8 All. Anupam Srivastava & Ors. Vs. U.P. Power Corporation Ltd. & Ors.
357
(2024) 8 ILRA 357
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.08.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 10189 of 2024
With
Other Connected Cases

Anupam Srivastava & Ors. ...Petitioners
Versus
U.P. Power Corporation Ltd. & Ors.
 ...Respondents

Counsel for the Petitioners:
Vikas Upadhyay

Counsel for the Respondents:
Abhishek Srivastava, Devesh Vikram, Manoj
Kumar Srivastava

A. Service law - Transfer - UP St.
Electricity Reforms Transfer Scheme, 2000
- Clause 6 (10) - Transfers, general in
nature - Executive Officers and and
Executive
Assistant
in
Purvanchal
Electricity Distribution Cooperation Ltd.
were
transferred
from
one
zone
to
another zone - Transfer order merely
mentions
the
designation
of
the
employees transferred and the name of
offices
from
where they
have
been
transferred to another zone - Legality
challenged
-
Earlier
Circular
dated
11.09.2018, which did not permit transfer
of an employee from one circle to another
circle, was later on superseded vide
circular dated 03.06.2019 and 22.07.2023
-
Subsequent
circulars
were
not
challenged - Effect - Held, if the letter
issued
on
22.07.2023
enforcing
the
transfer
policy
2019-2020
is
not
questioned then this Court cannot go into
the question of legality of such transfer
policy
-
It
was
not
necessary
for
corporation to have framed any statutory
rules or regulations and the corporation,
therefore, could do so by way of issuing
executive instructions. It is not the case of
petitioners
that
in
the
previous
establishment when it was known as U.P.
St. Electricity Board the employees were
not transferable, if the employees were
transferable then within the DISCOM the
distribution
company,
I
see
no
justification to hold that transfers inter
circle is bad. (Para 31, 35 and 39)

B. Constitution of India - Article 226 -
Writ - Judicial Review - Transfer matter -
Scope of interference - Held, scope of
judicial review in matters of transfer is
very Ltd. as the transfer has been held to
be incident of service and those who are
working on transferable post can of
course, be transferred. (Para 42)

Writ disposed of. (E-1)

List of Cases cited:

1. Rajeev Kumar Jauhari Vs St. of U.P. & ors.,
2007 (2) AWC 1726

2. Writ A No.- 11856 of 2022; Ashutosh Kumar
Singh Vs Uttar Pradesh Power Corporation &
ors.

3. SK Nausad Rahaman & ors. Vs U.O.I.& ors.;
(2022) 12 SCC 1

4. B. Varadha Rao Vs St. of Karnataka & ors.;
(1986) 4 SCC 131

5. Abani Kanta Ray Vs St. of Orissa & ors.; 1995
Supp (4) SCC 169

6. N.K. Singh Vs Union of India; (1994) 6 SCC
98

7. Shilpi Bose (Mrs) & ors. Vs St. of Bihar & ors.;
1991 Supp (2) SCC 659

8. U.O.I.Vs S.L. Abbas (1993) 4 SCC 357

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Anoop Trivedi, learned
Senior Advocate assisted by Sri Vikas
358 INDIAN LAW REPORTS ALLAHABAD SERIES
Upadhyay,
learned
counsel
for
the
petitioner, Sri Vinay Bhushan Upadhyay,
learned counsel for the petitioner in
connected petition being Writ - A No.-
9702 of 2024, Sri Shivam Shukla, learned
counsel for the petitioner in connected
petition being Writ - A No.- 10495 of 2024,
Sri Prabhakar Awasthi, learned counsel for
the petitioner in connected petition being
Writ - A No.- 10096 of 2024, Sri Abhishek
Srivastava,
learned
counsel
for
the
corporation, Sri Adarsh Bhushan, learned
counsel
for
the
Managing
Director,
Purvanchal Vidyut Nitaran Nigam Ltd.
Varanasi
and
Sri
Manoj
Kumar
Sriavastava, learned counsel for the Chief
Engineer, Prayagraj.

2. In all these connected petitions
different transfer orders have been challenged
but more or less the grounds are the same for
assailing the transfer orders. Hence all the
petitions are being heard to be decided by a
common judgment.

3. The petition being Writ - A No.-
10189 of 2024 is taken to be leading petition
for reference purposes.

4. Petitioners before this Court in Writ -
A No.- 10189 of 2024 are employees
working in the Purvanchal Vidyut Vitaran
Nigam, Ltd, a Distribution and Supply of the
Electricity Company (DISCOM) with the
headquarters at Varanasi.

5. The petitioners, who are 8 in
numbers are aggrieved by the transfer order
dated 28th June, 2024, whereby they have
been transferred from their current place of
posting to new zone falling in different
districts named in the transferred order.

6. It is worth mentioning that
petitioner No.- 1 Anupam Srivastava
working as Executive Assistant has been
transferred from Prayagraj to Varanasi
zone, petitioner No.- 2 Sanjay Kumar
Pandey working as Executive Assistant has
been transferred from Prayagraj to Mirzapur
zone, petitioner No.- 3 Ugrasen Singh
working as Executive Assistant has been
transferred from Kaushambi to Varanasi
zone, petitioner No.- 4 Nitin Narayan
Srivastava working as Executive Assistant
has been transferred from Gorakhpur to
Azamgarh zone, petitioner No.- 5 Abhishek
Gupta working as Executive Assistant has
been transferred from Prayagraj to Varanasi
zone, petitioner No.- 6 Hitesh Bhatnagar
working as Executive Assistant has been
transferred from Prayagraj to Varanasi zone,
petitioner No.- 7 Ranjeet Kumar Yadav
working as Executive Assistant has been
transferred from Prayagraj to Varanasi zone
and petitioner No.- 8 Ram Prakash working
as Executive Assistant has been transferred
from Azamgarh to Gorakhpur zone.

7. In writ petition being Writ - A No.-
9702 of 2024 petitioner Rahul Kumar
working as Executive Officer has been
transferred from Varanasi to Maharajganj,
which is in Gorakhpur zone under the transfer
order dated 28th June, 2024.

8. In writ petition being Writ - A No.-
10495 of 2024, petitioner Ganga Prasad
Jaisawal working as Executive Officer has
been transferred from Prayagraj to new
allotted Circle/ EDC Fatehpur.

9. In writ petition being Writ - A
No.0 10096 of 2024 the petitioner Arun
Kumar Singh working as Executive
Engineer
has
been
transferred
from
District Supply Division Varanasi to the
office of Chief Engineer Distribution,
Basti Circle, Basti vide transfer order
dated 21st June, 2024.
8 All. Anupam Srivastava & Ors. Vs. U.P. Power Corporation Ltd. & Ors.
359

10. The orders of transfer have been
challenged basically on three grounds:

(i). Transfer policy of the year
2019-2020 was an annual transfer policy
which is no more in existence and merely
by a circular letter issued on 22nd July,
2023, such a transfer policy cannot be reenforced, nor such a circular letter can
grant extension to an annual transfer policy
of a particular year for subsequent years;

(ii). Transfer is one of the
conditions
of
service
and
with
U.P.
Electricity Reforms Transfer Scheme, 2000
coming into force, the corporation was
required to frame statutory rules, failing
which the old U.P. State Electricity Board
Rules will be applicable as the existing
service conditions of the Board were to apply
mutatis mutandis vide clause 6 (10) of the
U.P. Electricity Reforms Transfer Scheme,
2000. Circular letter of the year 2023 having
no statutory force cannot be put into service
to transfer employees from one circle to
another circle and the circular letter issued at
the instance of Chairman on 11th September,
2018 only shall have a binding force and;

(iii).
Without
there
being
a
DISCOM based general policy governing
service conditions of its employees including
their transfer and adjustments from one circle
to another circle, the whimsical transfers are
not based upon any administrative exigency
or in public interest but for arbitrary exercise
of power as many employees from one
department got transferred to an inferior
department loosing their seniority etc. which
was acknowledged by the DISCOM itself in
its letter dated 18th July, 2024 which has
been brought on record as Annexure SA-2 to
the supplementary affidavit.

11. Advancing his argument Sri
Anoop Trivedi, learned Senior Advocate
has vehemently urged that these companies
were formed in the year 2000 and the
Corporation has remained idle in the matter
qua framing of rules/ regulations and now
when the administrative requirements and
public interest has compelled them to make
transfers of employees as it is alleged, may
be for working at their home districts or at
any place for substantially a very long
period of time that the transfer orders got
issued arbitrarily. He has argued that many
employees going by their substantive date
of appointment stood transferred to a place
where in terms of substantive date of
appointment junior persons are working on
a higher posts, to their utter embarrassment.

12. Sri Trivedi has submitted that this
raises administrative issues also because at
times for non- availability of vacancies, an
Executive Assistant is not promoted in a
circle whereas in another circle a much
junior due to availability of vacancy got
promoted as Executive Officer and there is
hardly any chemistry seen in the working
of a senior person by virtue of a substantive
appointment with a higher officer who is
otherwise junior due to date of initial
appointment.

13. In support of his argument Sri
Trivedi has relied upon various provisions
of the Scheme, 2000 and Regulation, 1970.
He has submitted that seniority is circlewise and it is also admitted in the circular
letter issued dated 8th September, 2018 and
there has been no quarrel about a fact that
these transfers, may be for administrative
compulsions/ public interest, from one
circle to another circle within the DISCOM
have not only resulted in serious unrest
amongst the employees but has been
prejudicial to the public interest as well.

14. Sri Trivedi has argued that
ultimately DISCOM has to maintain
360 INDIAN LAW REPORTS ALLAHABAD SERIES
supply/ distribution of electricity Board
domestic
and
industrial,
so
smooth
functioning of various circles and divisions
in different zones have to be ensured to
serve the public interest.

15. In the petition filed by Sri Rahul
Kumar one more argument has been
advanced that two officers got transferred
at one place itself, namely Gorakhpur zoneII, ADC, Maharajganj.

16. One more argument has been
advanced in the petition of Ganga Prasad
Jaiswal that in effect status of an employee
will change with the transfer of the
employee and that employee will get new
birth in a new circle or zone with the
transfer and, therefore, he is liable to be
placed at the bottom of seniority in that
circle.

17. All the learned Advocates have
adopted the arguments of Sri Trivedi,
learned Senior Advocate in their respective
petitions.

18. Meeting the argument Sri
Abhishek
Srivastava,
learned
counsel
appearing for the corporation and Sri
Adarsh Bhushan, learned counsel appearing
for the Purvanchal Vidyut Vitaran Nigam
Ltd.
have
submitted
that
once
the
corporation has ensured that seniority
would stand protected in the cadre to which
the employees belong, there cannot be any
issue.

19. It is submitted that petitioners
cannot deny that they are all working on
transferable posts and their apprehension
that if they would be transferred, they
would be working under a junior person
looking to the date of substantive
appointment, is not substantiated by any
pleadings raised in any of the writ
petitions.

20. It has been argued by learned
counsel for the corporation that the
document that has been filed as Annexure -
SA-2 itself clarifies that no employee
would be transferred from one office to
another office which is lower in order.
Thus, an employee working in the office of
Chief Engineer would be transferred to the
office Chief Engineer and likewise the
employee
working
in
the office
of
superintending
engineer,
executive
engineer will be transferred under the
similar rank of officers. It is also argued
that even if the argument is accepted that
the seniority is prepared circle wise, then
protection of seniority in that circle itself is
an example of vigilant approach of
corporation in ensuring that as and when
the vacancy arises in that circle such an
employee because of his transfer does not
get prejudiced by losing any chance of
promotion in his original circle or division,
as the case may be.

21. It is argued that corrections that
have taken place by virtue of the order
dated 18th July, 2024 would go on to
demonstrate that whenever any error comes
to the knowledge of corporation any
arbitrariness in the matter of transfer or
where the employees' interest is seriously
getting prejudiced, the matter would always
be examined by the competent authority
upon the representation being made. It is
argued that on a mere apprehension a writ
petition should not be entertained. The
grounds raised to challenge the order or the
argument
so
advanced
must
be
substantiated by appropriate pleadings. It is
argued that none of the petitioners has been
able to aver in any of the paragraphs in any
of the writ petitions, as to under which
8 All. Anupam Srivastava & Ors. Vs. U.P. Power Corporation Ltd. & Ors.
361
employee they are going to be junior or
anyone of them is going to be junior.

22. It is submitted that officer of the
same rank would be sitting in office where
they are transferred and even though
seniority stands protected in the original
circle but the DISCOM will ensure that no
discrimination is meted out in the treatment
of the employees of another circle or
division or zone, as the case may be after
they join the transferred place.

23. On the question of policy of
transfer it has been argued by Sri
Srivastava as well as Sri Bhushan, learned
Advocates appearing for the respective
respondents that Managing Directors of the
corporation
are
fully
empowered
to
formulate policy and no statutory scheme is
required to be floated. They have argued
that it is a company now and, therefore, no
statute is required to regulate its transfer
policy. They have also urged that transfer
being an incident of service depending
upon the administrative exigencies and
public interest, by administrative orders or
circulars such policy of previous years can
always be extended and enforced in
subsequent years. They submit that there is
no bar for an employee not to be
transferred either under the previous Act
prior to coming into force of Scheme, 2000
or even by virtue of any subsequent
circulars or executive orders issued at the
instance of the corporation.

24. It is vehemently urged by learned
counsel for the respondents that U.P.
Electricity Reforms Transfer Scheme, 2000
was brought into force to transform the
erstwhile U.P. State Electricity Board into a
power corporation for the purposes of
distribution of power and supply of
electricity. Thus, U.P. Power Corporation
came into existence and five companies,
namely, Purvanchal Vidyut Vitaran Nigam
Ltd., Dakshinachal Vidyut Vitaran Nigam
Ltd.,Madhyanchal Vidyut Vitaran Nigam
Ltd.,
Pashchimanchal
Vidyut
Vitaran
Nigam Ltd. and0 Kanpur Electricity Supply
Company, came to be incorporated and
registered under the Companies Act, 1956.
It is argued that companies are always
governed by its own by laws and standing
orders and relations framed by it or adopted
by it and there is no requirement of any
statute
to
be
passed
by
the
State
Legislature.

25. It is further submitted that the
controversy in the above regard is no more
res integra in view of the Division Bench
judgement of this Court in the case of Rajeev
Kumar Jauhari v. State of U.P. and others,
2007 (2) AWC 1726, wherein the U.P. Rajya
Vidyut Utpadan Nigam Ltd. Absorption
Regulation, 2006 were challenged and the
Court very categorically held that with the
transfer of statutory body to non statutory
body like company registered under the
Companies Act, 1956 in the present case
would certainly deprive the employees of
protection under the Statute and now the
service conditions would stand governed
under the ordinary law of contract.

26. It is thus argued that in terms of the
contract law, it is always for the corporation
to issue circulars to facilitate transfer of its
employees from one place to another place in
administrative exigencies and public interest.
It is also submitted that in the cases in hand
employees have been working for a number
of years to say 5 to 10 years or more at one
place and that is why the transfers have been
effected.

27. Sri Manoj Kumar Srivastava,
learned counsel appearing for the Executive
362 INDIAN LAW REPORTS ALLAHABAD SERIES
Engineer/
Superintendent
Engineer,
Purvanchal Vidyut Vitaran Nigam Ltd.,
Varanasi has
adopted the arguments
advanced by Sri Abhishek Srivastava and
Sri Adarsh Bhushan, learned counsel for
the U.P. Power Corporation and Managing
Director Eastern DISCOM.

28.

Learned
counsel
for
the
respondents have also relied upon the
judgment of a coordinate Bench of this
Court in the case of Ashutosh Kumar
Singh
v.
Uttar
Pradesh
Power
Corporation and others in Writ - A No.-
11856 of 2022 and have heavily relied
upon paragraphs 6, 7, 8, 9, 10 & 11 of the
judgment which runs as under:

"(6) Learned counsel for the
Respondents, on the other hand, have
referred to the Regulations of 1970, which
are still applicable to employees of the
Corporation
but
subject
to
some
Amendments/Modifications/ Clarifications
as and when required. He has referred to
the Definitions Clause and Regulations-3
(9) where Establishment has been defined
as Ministerial Establishment in the office of
the Chief Engineer and other Subordinate
Offices under the Board. He has also
referred to the sources of recruitment in the
office of the Chief Engineer, in Circle
Office and Divisional Office and he says
that Office Assistant is the re-designation
of the original Clerical post by the name of
Routine Grade Clerk. All Routine Grade
Clerks are directly recruited in various
offices of the Chief Engineer, Circle offices,
and the Divisional Offices but their
seniority is maintained as per the date of
their substantive appointment and when
their promotions are due, the seniority of
incumbents shall be determined from the
date of their substantive appointment in
their own class or cadre. The Cadre
remaining the same and the seniority being
determined only on the basis of date of
substantive appointment, the petitioner
shall not be affected adversely by being
transferred to Maharajganj Circle.

(7) Learned counsel for the
petitioner has pointed out that the letter
sent by the Managing Director of U.P.
Power Corporation Limited on 11.09.2018
shall be deemed to have been suppressed
by the Transfer Policy dated 03.06.2019
issued by the Board of Directors of the
Power Corporation Limited.

(8) Learned counsel for the
Respondents has referred to Paragraph-3
(ii) of the Transfer Policy wherein the
maximum tenure of Grade-III employees in
a particular Office/Circle/ District is
mentioned. It has been mentioned therein
that such Clerical staff shall be allowed to
function for a maximum period of three
years on one Office table and for a
maximum period of six years in such office
and that they shall be transferred to some
other Tehsil in the same District after six
years. The maximum period of posting in
one District shall be 10 years, thereafter
the incumbent shall be transferred to the
Adjoining/Nearby District. In the case of
the petitioner he has been working in
Gorakhpur for the past more than ten years
with effect from 2011 to 2022 and he has
been transferred to the adjoining District of
Mahanagar. It has also been mentioned
that in the said Paragraph-3 (ii) of the
Transfer Policy that on transfer, such
Clerical staff shall not be affected in terms
of their seniority which shall be maintained
as per the lien they exercise in their
original office.

(9) This Court has considered the
interim order granted in Writ-A No.16454
of 2019 as aforesaid where learned Senior
counsel for the petitioners had argued that
the appointments for each class of posts is
8 All. Anupam Srivastava & Ors. Vs. U.P. Power Corporation Ltd. & Ors.
363
made at three distinct levels i.e. the Office
of the Chief Engineer, Circle Office and
Divisional Office and employees from one
unit if they are transferred to another unit,
would stand to loose their seniority and
shall be adversely affected in their chances
of promotion. It was also argued by the
learned counsel for the petitioners therein
that the Rules have not been amended and
therefore, it would not be open for the
employees of one Division/Circle to be
transferred to another Division/Circle, as
their seniority and chances of promotion
would be justified.

(10) Such arguments were made
by the learned Senior counsel only on the
basis of Regulations and the interim order
was passed at a time when there were no
instructions received from the Corporation,
at the stage of admission of the writ
petition. Such benefit of interim order as
prayed for by the learned counsel for the
petitioner can be given to him in terms of
judgments of the Supreme Court in the case
of Vishnu Traders Vs. State of Haryana
reported in 1995 (Supp 1) SCC 461.
However, if a writ petition is being decided
finally an interim order cannot be treated
as binding. Now that instructions have been
received
from
the
Corporation
and
arguments have been made by the learned
counsel for the Respondents on the basis of
very Regulations that were relied upon at
the time of passing of the interim order
dated 05.12.2019, the matter can be
decided by this Court.

(11) This Court finds that the
Regulations of 1970 were made applicable
to the employees of the Power Corporation
subject to Clarification/ Modification etc.
as required on conversion of the Board to a
Government
Company.
The
Power
Corporation is now governed by the Board
of Directors which has issued a transfer
policy wherein taking into account the fact
that the Clerical employees have been
posted in a Circle Office/Divisional offices
for long periods of time and they needed to
be transferred a provision has been made
that they shall be transferred to the
adjoining and nearby places without
affecting their seniority. Even otherwise as
per the Regulation of the 1970, seniority is
maintained
as
per
the
Cadre
and
Establishment
is
defined
under
the
Regulations itself."

29. It is argued that the coordinate
Bench having upheld the transfer policy
issued by the Board of Directors, same
would amount to a binding judicial
precedent for another coordinate Bench.
However, it is submitted that they are not
averse to an order being passed for
consideration of representations of different
petitioners, if they make or have already
made.

30. Rival submissions fall for
consideration.

31. Looking to the transfer order as
for instance in the leading petition I find
that these transfers are general in nature as
by one common order dated 28th June,
2004 a large number of employees have
been transferred from one zone to another
zone. The petitioners have been transferred
like for instance from Azamgarh zone to
Varanasi zone or from Prayagraj zone to
Varanasi zone and likewise. The transfer
order mentions the designation of the
employees transferred and the name of
offices from where they have been
transferred to another zone.

32. It is not specified in the order that
they are being transferred to report in a
particular office. They have to report to the
zonal headquarter from there they will be
364 INDIAN LAW REPORTS ALLAHABAD SERIES
assigned duty for a particular department or
a circle or division obviously as Sri
Srivastava has submitted that in accordance
with the letter dated 18th July, 2024
brought
on
record
by
means
of
supplementary affidavit.

33. From the order of transfer it
cannot be inferred that petitioners have
been transferred to a post and under the
officers, who are junior to them, nor there
is any specific pleadings raised in any of
the paragraphs of the petition. The
pleadings
are
basically
indicative
of
violation of clause 6 (10) of the U.P. State
Electricity Reforms Transfer Scheme, 2000
and the Regulation, 1970. The details as
have been given vide paragraphs 8 to 15 of
the petitioner only demonstrate to the
extent that these employees were appointed
in a particular year and have been
discharging
their
duties
as
such.
I,
therefore, find substance in the submission
advanced by learned counsel for the
respondents that pleadings are lacking to
substantiate the grounds and the arguments
advanced that petitioners' seniority are
going to be compromised if transfer orders
are sustained.

34. Reliance has been placed upon the
circular dated 11th September, 2018 to
show that employees cannot be transferred
from one circle to another circle and this
circular, according to Mr. Trivedi, is still in
force. This argument of Mr. Trivedi, if
accepted, it will run counter to two of his
own arguments: firstly, that the transfer
policy 2020 would not be enforced and
carried
forward
by
any
executive
instructions or circular unless and until a
new policy is enforced; and secondly, if
there is no statutory transfer policy or
statutory circular which can be given effect
to in view of the relevant regulations in the
Scheme 2000 then the circular dated 11th
November, 2018 could be relied upon.

35. It is an admitted position on
record that circular letter dated 11th
September, 2018 stood superseded by the
circular letter dated 3rd June, 2019 and
then by another circular letter dated 22nd
July, 2023. The petitioners cannot argue
that circular letters or instructions issued on
behalf of the corporation would not have
any binding force in view of the scheme of
2000 and no circular letter can enforce a
previous transfer policy while at the same
time rely upon the similar circular letter
2018 which also does not have any
statutory force. However, it is also worth
noticing that none of the circular letters are
challenged in this petition and in the
connected petitions. If the letter issued on
22nd July, 2023 enforcing the transfer
policy 2019-2020 is not questioned then
this Court cannot go into the question of
legality of such transfer policy, more
specially in the circumstances when a
coordinate Bench of this Court in the case
of Ashutosh Kumar Singh (supra) had
upheld the transfer policy. Vide paragraph
11 of the judgment the Court had held thus:

"(11) This Court finds that the
Regulations of 1970 were made applicable
to the employees of the Power Corporation
subject to Clarification/ Modification etc.
as required on conversion of the Board to a
Government
Company.
The
Power
Corporation is now governed by the Board
of Directors which has issued a transfer
policy wherein taking into account the fact
that the Clerical employees have been
posted in a Circle Office/Divisional offices
for long periods of time and they needed to
be transferred a provision has been made
that they shall be transferred to the
adjoining and nearby places without
8 All. Anupam Srivastava & Ors. Vs. U.P. Power Corporation Ltd. & Ors.
365
affecting their seniority. Even otherwise as
per the Regulation of the 1970, seniority is
maintained
as
per
the
Cadre
and
Establishment
is
defined
under
the
Regulations itself."

36. Besides above, in view of the
Division Bench judgment of this Court
upholding the Scheme, 2000 and directing
that there was no requirement for the
company registered under Companies Act,
1956 to have any statutory regulations,
every instructions issued on administrative
side by a competent authority in its behalf
shall have a binding force. It is a contract
of
employment
now
between
the
employees
of
the
corporation
and
corporation registered under the Companies
Act, 1956 and, therefore, corporation is
well within its right to issue necessary
executive instructions to govern the day to
day transfer or otherwise annual transfers.
The Division Bench of this Court vide
paragraph 32 in the case of Rajeev Kumar
Jauhari (supra) had held thus:

"32. Sri Khare lastly sought to
argue that Section 23(7) of the Reforms
Act, 1999 read with Clause 3 (10) of the
Transfer Scheme, 2000 use the word
'Regulation' and therefore, UPRVUNL can
only change the condition of service by
framing statutory Regulations and not the
Regulations, which are non statutory In our
view, this submission is to be noted for
rejection only. UPRVUNL is not a statutory
body, but a Company registered under the
Companies Act. It is not disputed that the
employment and contract of the petitioners
which was earlier with a statutory
autonomous body, namely, UPSEB, stood
transferred to UPRVUNL and now it is
UPRVUNL,
who
is
empowered
to
determine the conditions of service of its
employees. The manner in which such
provision can be made would be governed
by the Article of Association of such
Company and when the Company itself is
not statutory, to expect such company to
frame statutory Regulations for governing
its employees is wholly untenable. The
effect of transfer of service from statutory
body to a non statutory bod), namely, a
company registered under the Company
Act, would deprive the statutory protection
available to the employees and now the
matter would be governed by ordinary law
of contract. Normally, the transfer of
contract involves the consent of the
employees also, but in the present case, the
petitioner's contract has been transferred
to UPRVUNL by statute itself and,
therefore, the employees have no role and
their consent is not required. The only rider
on the power of transferee employer is that
the service condition whenever changed
would not be less beneficial and will not
deprive past benefits accrued to the
transferred employees before transfer, that
is, to the extent provided under Section
23(7) of the Reforms Act, 1999. The
protection under Section 23(7) neither
continue the status of the transferred
employee with the new companies as
statutory nor otherwise has any other role
except to prevent employer from exercising
its ordinary powers available in Common
Law, which would be contrary to the
protection given under Section 23(7) of the
Reforms Act, 1999. For all other purposes,
the transferee company is free to formulate
its policies and enter into contract or lay
down terms and conditions of its employees
in the manner, it find best suited for the
efficient functioning of the company.
Merely for the reason that the State
Government is 100% share holder of the
company does not identify the company
itself with the State Government. In
Shrikant v. Vasant Rao , the Court held in
366 INDIAN LAW REPORTS ALLAHABAD SERIES
para 24 that in the matter of a company
where the entire share capital is held by the
State Government, yet it cannot be
identified with the State Government and is
always entitled to act and proceed in a
manner a company function. This principle
was recognized as long back as in 1970
also by a Constitution Bench in R.C.
Cooper v. Union of India , and at page 584,
the
Apex
Court
held-
"A
company
registered under the Companies Act is a
legal person, separate and distinct from its
individual members. Property of the
Company is not the property of the
shareholders. A shareholder has merely an
interest in the Company arising under its
Article of Association measured by a sum
of money for the purpose of liability, and by
a share in the profit."

37. Now testing the arguments of Mr.
Trivedi on the touchstone of clause 6(10) of
the U.P. State Electricity Reforms Transfer
Scheme, 2000, I find that the object behind
the enforcement of the Scheme, 2000 was
transformation of U.P. State Electricity Board
into a power corporation and likewise transfer
of property, assets, rights and liabilities of the
State Government as a consequence of transfer
of vesting or re-vesting of the properties. It is
as a sequel to that objective that the scheme
was provided and titled as transfer scheme. In
no manner it can be taken as a scheme for
transferring employees within the corporation
or within the company. Transfer is just an
incident of service which can be done in
administrative exigency or in public interest by
the authorities vested with the power to do so.
The word 'Transferee' that has come to be
referred to in paragraph 6(10) means that
corporation shall frame regulations governing
the conditions of service of persons.

38. Employees in the present case
earlier were employees of the U.P. State
Electricity Board which was State own
board and with the floating of the Scheme,
2000
they
stood
transferred
to
the
company. It is in that context that it was
provided that the transferee company shall
frame regulations. Now the transferee
company since did not frame regulations
then as per clause 6(10) the existing service
condition of the board were made to apply
mutatis mutandis. The relevant provision of
clause 6(9) (10) & (11) of the Scheme,
2000 floated by virtue of U.P. State
Electricity Reforms Transfer Scheme, 2000
is reproduced hereunder:

"6(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 statutory and
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.

39. In view of the above Division
Bench judgment, it was not necessary for
corporation to have framed any statutory
8 All. Anupam Srivastava & Ors. Vs. U.P. Power Corporation Ltd. & Ors.
367
rules or regulations and the corporation,
therefore, could do so by way of issuing
executive instructions. It is not the case of
petitioners
that
in
the
previous
establishment when it was known as U.P.
State Electricity Board the employees were
not transferable, if the employees were
transferable then within the DISCOM the
distribution company, I see no justification
to hold that transfers inter circle is bad.

40. In the case of SK Nausad
Rahaman & others v. Union of India and
others (2022) 12 SCC 1, Supreme Court
has observed that executive instructions
embodied in the office memorandum issued
by the department would have binding
force unless and until they are violative of
any statutory rules concerning the subject
matter. The Court has held that it is only in
the event of a conflict between the
executive instructions and the rules that the
rules
would
prevail,
otherwise
the
executive instructions will have the same
force as of a statutory rule. Since the
Division Bench of this Court has already
held that the service rules of employee of
corporation would stand governed under
the contract of law and there are no
regulations framed governing the transfer
of the employees of the corporation within
the DISCOM or even otherwise, the
executive instructions issued from time to
time by the corporation will have a binding
force.

41. It has been repeatedly held by this
Court and Supreme Court as well that
transfer is an incident of service. A transfer
order cannot be taken to have varied
conditions of service to the disadvantage of
employee. In the case of B. Varadha Rao
v. State of Karnataka and others (1986)
4 SCC 131, the Supreme Court referring to
an earlier judgment had observed that "The
observation that transfer is also an implied
condition of service is just an observation
in passing. It certainly cannot be relied
upon in support of the contention that an
order of transfer ipso facto varies to the
disadvantage of a government servant, any
of his conditions of service making the
impugned order appealable under Rule
19(1)(a) of the Rules."

42. Even otherwise the scope of
judicial review in matters of transfer is very
limited as the transfer has been held to be
incident of service and those who are
working on transferable post can of course,
be transferred. In the case of Abani Kanta
Ray v. State of Orissa and others, 1995
Supp (4) SCC 169, Supreme Court has
observed that "a court would not ordinarily
interfere with the order of transfer unless
and until it is found to be arbitrary and
vitiated by mala fides or there is infraction
of any professed norm or principle
governing the transfer". This view has
been taken by Supreme Court relying upon
its earlier judgment in the case of N.K.
Singh v. Union of India (1994) 6 SCC 98.

43. In the case of Shilpi Bose (Mrs)
and others v. State of Bihar and others,
1991 Supp (2) SCC 659, the Court while
setting aside the order of Patna High Court
which had allowed the petition of certain
displaced persons on account of transfer
being effected, held that except in the event
of violation of any statutory rule or mala
fides, Court should not interfere with the
transfer order made in public interest or for
administrative reasons. Vide paragraph 4
the Court has held thus:

"4. In our opinion, the Courts
should not interfere with a transfer Order
which are made in public interest and for
administrative reasons unless the transfer
368 INDIAN LAW REPORTS ALLAHABAD SERIES
Orders are made in violation of any
mandatory statutory Rule or on the ground
of malafide. A Government servant holding
a transferable post has no vested right to
remain posted at one place or the other, he
is liable to be transferred from one place to
the other. Transfer Orders issued by the
competent authority do not violate any of
his legal rights. Even if a transfer Order is
passed in violation of executive instructions
or Orders, the Courts ordinarily should not
interfere with the Order instead affected
party
should
approach
the
higher
authorities in the Department. If the Courts
continue to interfere with day-to-day
transfer Orders issued by the Government
and its subordinate authorities, there will
be complete chaos in the Administration
which would not be conducive to public
interest. The High Court over looked these
aspects in interfering with the transfer
Orders."

44. Recently in the case of SK.
Nausad Rahaman and others v. Union of
India and others (2022) 12 SCC 1,
Supreme Court has held that the transfer
being an incident of service no employee
who is working on a transferable post
cannot have a fundamental right or vested
right to claim a particular place or station
or posting of choice. The Court relied upon
its earlier judgment in the case of Union of
India v. S.L. Abbas (1993) 4 SCC 357,
wherein vide paragraph 7 the Court has
held thus:

"Who
should
be
transferred
where, is a matter for the appropriate
authority to decide. Unless the order of
transfer is vitiated by mala fides or is made
in violation of any statutory provisions, the
Court cannot interfere with it. While
ordering the transfer, there is no doubt, the
authority must keep in mind the guidelines
issued by the Government on the subject.
Similarly,
if
a
person
makes
any
representation with respect to his transfer,
the appropriate authority must consider the
same having regard to the exigencies of
administration. The guidelines say that as
far as possible, husband and the wife must
be posted at the same place. The said
guideline, however does not confer upon
the
government
employee
a
legally
enforceable right."

45.