Orissa High Court
Biraja Prasad Padhi & Others vs Tata Power Central Odisha …. Opposite … on 24 December, 2024
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
AFR IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P. (C) No.18997 of 2024
Biraja Prasad Padhi & others .... Petitioners
Mr. S.K. Das, Advocate
-Versus-
Tata Power Central Odisha .... Opposite Parties
Distribution Ltd. (TPCODL),
Bhubaneswar & others
Mr. A.K. Parija, Senior Advocate
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT: 24.12.2024
1. Instant writ petition is filed with the following relief, such as, to
quash the office order No. TPCODL/HR/2024/A-604 dated
03.08.2024 of opposite parties No.2 under Annexure-8 in respect
of opposite party No.3 as the order of transfer violates the service
conditions of the petitioners as per CESCO Officers Service
Regulations (in short 'the Regulations') as at Annexure-1 and also
conditions stipulated in the vesting order dated 26.05.2020 i.e.
Annexure-2 and the GRIDCO Promotion Policy at Annexure-4.
2. The challenge is at the behest of the petitioners vis-à-vis
Annexure-8 for transferring and posting of opposite party No.3 in
violation of the Regulations and contrary to Annexure-2 and
Clause 49(c) thereof. The contention is that opposite party No.3
is a stranger to the cadre of petitioner No.1 and not an employee
W.P.(C) No.18997 of 2024 Page 1 of 34
of the CESCO. It is pleaded that the petitioners are the employees
of the erstwhile CESU which stood vested with the TPCODL
w.e.f. 1st June, 2020. The further contention is that such posting
of opposite party No.3 has placed the petitioners in great
disadvantage, which is not in consonance with the Regulations
and Annexure-2. It is pleaded that petitioner Nos. 1 and 2 belong
to E-7 & E-5 Grade respectively, whereas, petitioner No.3 is
continuing in the cadre of E-4 Grade and all of them, could not
be posted befitting their cadres and it has happened only because
of the illegality committed by opposite party Nos. 1 & 2. As
further pleaded, petitioner Nos. 4 to 11 have been posted at
different places as the Assistant Manager (Electrical) under the
administrative control of the TPCODL and belong to E-3 Grade
and their promotion to E-4 Grade is due, however, on account of
indiscretion in the administration, timely promotion has not
happened and they are still languishing in a lower post and while
stating so, the gradation list dated 27th February, 2023 i.e.
Annexure-3 is referred to.
3. The grounds advanced challenging the transfer and posting of
opposite party No.3 are as follows:
(i) The petitioners are guided by the GRIDCO
Promotion Policy and as per Clause 6.3 of the said
policy, minimum eligibility period for consideration
of promotion has been prescribed. But, on account of
official apathy of the authorities of the TPCODL, they
have not received promotion in time, whereas,
officials outside the cadre of CESCO like opposite
party No.3 and their services are being utilized to
manage the work which is impermissible as such
lateral entry of outsiders has affected the service
conditions of the petitioners. Since all such posts in
the erstwhile CESU were to be filled up by
W.P.(C) No.18997 of 2024 Page 2 of 34
promotion, which is to take place as per the policy
(Annexure-4), but opposite party Nos. 1 & 2 in
violation of the same and also the Regulations,
inducted outsiders into the higher Grade directly with
an attempt to introduce them into the cadre of the
petitioners.
(ii) As per Rule 11 of the Odisha Service Code, cadre is
defined and transfer and posting of employees is
confined to cadre only and considering the same, the
employees of the TPCODL are subjected to transfer
from among the members of the same cadre,
however, TPCODL in deviation to the same has
introduced direct recruits into different ranks and
nomenclature, though their names did not find place
in the cadre list as the petitioners.
(iii) Opposite party No.3 is holding a post of MD-I
cadre under the TPCODL and posted as Technical
Assistant to Chief Operation Service (OS) and posted
as Divisional Manager, BED, Bhubaneswar, to which
cadre, he does not belong to and on the contrary,
such posts belongs to the cadre strength of petitioner
No.1 and since on an earlier occasion, he was posted
as such, it was objected to by the petitioners and also
the Association, as a result of which, the same was
kept in abeyance by the authorities of the TPCODL
vide Annexure-7.
(iv) Another transfer and posting of officers and
decision in that regard by opposite party No.2 dated
3rd August, 2024(Annexure-8) was taken and the
same included some of the petitioners, whereby,
opposite party No.3, an officer under direct
recruitment of the TPCODL was posted as the
Divisional Manager BED, Bhubaneswar, when he is
holding a different post as HOD Operations and
Technical Assistant to COS, which is illegal and runs
contrary to the service conditions of the petitioners.
(v) Opposite party No.3 does not belong to the cadre
of Divisional Manager or E-5 Grade or any of the
Grades starting from E-1 to E-10, hence, the posting in
such cadre is not permissible under law;
W.P.(C) No.18997 of 2024 Page 3 of 34
(vi) Opposite party No.3 belongs to a different Grade
all together and has nothing to do with the job
assigned to the Officers in E-1 to E-10 Grade, rather,
he never joined in the cadre strength of E-1 to E-10
and hence, such posting as a Divisional Manager is
illegal and directly violates the Cadre Rule;
(vii) Upon posting of opposite party No.3 into E-5
Grade, the promotional avenue of E-4 Grade
employees have been blocked by one post which
causes serious prejudice to some of the petitioners,
who are in E-4 Grade and also affect their service
prospective and promotion of other officers in E-4
Grade and also other Grade officers.
(viii) Opposite party No.3 was never posted in the
cadre in any Grade whatsoever or a member of
CESCO and in view of such posting, it is likely to
cause administrative obstructions with regard to
reporting of the officers in the lower posts like SDOs
and Section Officers;
(ix) The officers continuing in E-4 Grade, such as,
SDOs due to such illegal order of transfer and posting
dated 3rd August, 2024 are now answerable to
opposite party No.3, who has not been brought into
the cadre of Engineers of different Grades under
CESCO Officers Service Regulations;
(x) Petitioner No.1 belongs to E-7 grade and on
account of the impugned transfer order, he has been
replaced by a stranger, who is not in the cadre and
when law does not permit the same, which stipulates
that the transfer is always permissible within a cadre,
hence, the same is in gross violation of the Rules.
With the above grounds and the facts pleaded on record,
the petitioners have questioned the decision of the TPCODL in
view of Annexure-8 in respect of opposite party No.3, he having
been posted as the Divisional Manager, BED, Bhubaneswar with a
plea that the same is in utter disregard to the Regulations,
GRIDCO Promotion Policy and the vesting order.
W.P.(C) No.18997 of 2024 Page 4 of 34
4. Heard Mr. Das, learned counsel for the petitioners and Mr.
Parija, learned Senior Advocate for the opposite parties.
5. The petitioners and opposite parties in reply and response filed
rejoinder and additional affidavits with the former, on the one
hand, questioned the transfer and posting of opposite party No.3
vide Annexure-8 and on the other hand, justified by the latter
with a stand that the same is not in violation of any rules and is
unlikely to cause prejudice to the petitioners, rather, a decision in
order to ensure the operational efficiency to be maintained by the
TPCODL.
6. With reference to the counter affidavit of opposite party No.1,
it is pleaded by the opposite parties that under the vesting order,
pursuant to the privatization of power sector and enactment of
Orissa Electricity Reform (Transfer of Assets, Liabilities,
Proceedings and Personnel of GRIDCO to Distribution
Companies) Rules, 1998, the distribution business of GRIDCO
was vested with CESCO and as per such scheme, GRIDCO
transferred all its assets and liabilities to CESCO on 31st March,
1999 and in the process, 8,417 employees of GRIDCO were
transferred to CESCO, whereafter, CESCO's Officers Service
Regulations was introduced. It is further pleaded that the Odisha
Electricity Regulatory Commission (in short, 'the OERC') revoked
the license of CESCO w.e.f. 1st April, 2012 and appointed an
Administrator to discharge its activities and also formulated a
scheme, namely, the Central Electricity Supply Utility of Odisha
(Operation and Management) Scheme, 2006 as per which the
utility of CESCO was renamed as CESU by decision dated 28th
November, 2006 and adopted all the Service Rules, Regulations
W.P.(C) No.18997 of 2024 Page 5 of 34
etc. framed by OACB, GRIDCO, CESCO and followed by CESCO
as on the date of vesting with CESU till CESU framed its own
Regulations and thus, CESCO Officers Regulations were adopted
by the CESU, whereby, making the same applicable with respect
to the employees transferred from CESCO and also the direct
recruits. The further pleading is that CESU suffered deficit and
hence, the Government considered the vesting and accordingly, it
was achieved w.e.f. 1st June, 2020, according to which, the staff
deployment plan of TPCODL shall be in respect of the employees
of the CESU including the regular and contractual employees and
the balance employees to be filled up through direct recruitment
by TPCODL and for the said purpose, every financial year, the
TPCODL receives approval from the OERC and that the
employees of CESU transferred to TPCODL forms part of
TPCODL and are to be governed by the terms of their
appointment, which are not to be inferior to their existing service
conditions in CESU leaving the TPCODL, the operational
flexibility to design the organization structure to ensure efficiency
in operations and staff deployment. According to the TPCODL, it
has submitted the organizational structure to the OERC and after
the vesting of the CESU utility, the employees of the erstwhile
CESU and their service conditions are not to be less favourable. It
is pleaded that the TPCODL in discharge of its fiduciary duty to
ensure that no discrimination takes place between such employees
and CTC employees (of TPCODL), especially, with regard to
career advancement and posting, which is an obligation with an
objective to uphold efficiency and merit of the organization,
looks after and given weightage to the organization structure and
while claiming so, Annexure-D/1 is referred to. In reply to the
W.P.(C) No.18997 of 2024 Page 6 of 34
plea of the petitioners vis-à-vis opposite party No.3's posting, it is
again pleaded that in order to provide diverse opportunities to
the employees of the TPCODL through horizontal and vertical
movement; to take up critical and challenging responsibilities; and
to ensure operational efficiency of utility, the decision was taken,
by which, the said official, who was the Technical Assistant to
Chief (OAS), has now been posted as Divisional Manger, BED,
Bhubaneswar and petitioner No.1 to the post of DGM (Electrical)
at MMG, Centre, Bhubaneswar and similarly, petitioner Nos. 2 &
5 have been transferred to different places. It is stated that the
said order was kept in abeyance on account of protest and
objection raised by the CESCO Engineers Service Association
(CESA) and Orissa Electrical Engineers Association (OEEA) but
thereafter, with the discussions held, the order dated 19th June,
2024 was issued with the transfers and postings and the same was
also was not given effect to, however, at last, on 3rd August,
2024, the impugned decision had to be taken and notified to
ensure operational efficiency and by such an exercise, the service
conditions of the Non-CTC employees or the employees of the
TPCODL have not been altered.
7. With the above defence, the opposite parties raised a
preliminary objection regarding maintainability of the writ
petition by claiming that the TPCODL is a private entity, hence,
not amenable to the jurisdiction of the Court as the law is well
settled that writ does not lie against such entities as Article 226 of
the Constitution of India can only be invoked against a private
body, only if, it performs public duties or functions similar to the
State as a defined in Article 12. While stating so, it is pleaded that
in terms of the vesting order, it is clear that the TPCODL is a
W.P.(C) No.18997 of 2024 Page 7 of 34
Special Purpose Vehicle, in which, TATA Power Company Ltd.
holds 51% share with 49% being held by the State Government
through GRIDCO and thus, majority of the shareholding is with
the company and as such, there is no State control over the
TPCODL and for the fact that, the same is an autonomous body
having no nexus with the Government, it does not fit into the
expression 'State' as occurring in Article 12 of the Constitution of
India. The contention is that the distribution of electricity is in
terms of the Electricity Act, 2003 and the same is merely a
function providing commercial services with considerations and
therefore, writ jurisdiction cannot be exercised.
8. One more ground is advanced which is, in the alternative, to
the following, such as, scope of judicial review in transfer of
employees is limited as law is also well settled that the Court's are
not to interfere with such decisions made in the public interest
and on account of administrative reasons. It is pleaded that the
impugned order of transfer does not adversely affect the career
prospects of any of the employees of the TPCODL and the same
is necessary to ensure operational flexibility and efficiency of the
utility service, which is to help and assist in reducing the financial
burden on the consumers, hence, the Court is not to interfere
with the same.
9. It is the contention of the opposite parties that the grievances
of the petitioners are illusory and bereft of any merit since the
TPCODL in compliance of its moral, ethical and legal duties being
a corporate body treats all the employees equal, whether, non-
CTC or CTC employees and it ensures that the service conditions
of the non-CTC employees do not become less favourable in
W.P.(C) No.18997 of 2024 Page 8 of 34
compliance of the vesting order despite the impugned transfer
and posting. In other words, it is claimed that any such plea of
the petitioners with a grievance against opposite party No.3 on
account of the impugned decision is ex-facie unreal and merely an
apprehension, which is thoroughly misconceived. The further
contention is that there cannot be any classification of employees
based on the method of recruitments. Lastly, it is contended that
assuming for the sake of argument that the grievances of the
petitioners to be valid, it would imply that despite having merit,
the CTC employees can never be transferred to any posts on the
ground that the same is likely to result in some of the non-CTC
employees to report them as sub-ordinates. It is stated that if such
plea is accepted, it would hamper the growth of the CTC-
employees in the organizational structure and it could amount to
discrimination as well. Any such discrimination on the basis of the
source of recruitment is again not permissible, nonetheless, the
decision is in confirmity with the vesting order as it has allowed
and provided the TPCODL the operational flexibility to design
the organization structure in operations and staff deployment. It is
alleged by the opposite parties that the petitioners are actually
demanding a special status like an elite group in juxtaposition to
the direct recruits, namely, CTC employees, who, as if, are not
entitled to any such transfers and postings.
10. The impugned office order, as according to the opposite
parties, does not affect the service conditions of the petitioners,
since, it is not in relation to promotions or conditions of service
of any of the employees, whatsoever. It is claimed that the
decision neither affects any of the rights of the petitioners nor the
same is averse to their service conditions and hence, the plea that
W.P.(C) No.18997 of 2024 Page 9 of 34
it is in breach of the existing service conditions is completely
baseless, factually wrong and without any merit and there is no
valid reason for the Court to quash it. It is stated that there is no
prejudice caused to the petitioners nor the decision is in violation
of the Regulations, as per which, Regulations 25(1) provides that
every officer being liable for transfer to any place of work of the
company or any other place of work related to the work of the
company and in so far as the plea that the same is to directly
interfere with the GRIDCO Promotion Policy is incorrect, as such
policy, applies to promotion only and not to the transfers and
that apart, promotion for a particular posting cannot be claimed
as a matter of right, which is also a settled law. Precisely stated,
with the above plea and grounds advanced, the opposite parties
pleaded that there is no illegality in the impugned order of
transfer, particularly, with respect to posting of opposite party
No.3 and as it is unlikely to cause any prejudice to the petitioners,
the same is not liable to be interfered with.
11. Mr. Parija, learned Senior Advocate would submit that the
TPCODL is a private entity and therefore, jurisdiction under
Article 226 of the Constitution of India is not to be invoked and
hence, the writ petition should be dismissed in limine and while
advancing such an argument, he refers to the following decisions,
namely, Saiyam Mishra and others Vrs. AIR India Ltd. and others
2023 SCC Online Delhi 4904; R.S. Madireddy & Another Vrs.
Union of India and others 2022 SCC Online Bombay 2657; Saint
Mary's Education Society and another Vrs. Rajendra Prasad
Bhargava and others (2023) 4 SCC 498; Dinesh Kumar Behera
Vrs. Orissa Sponge Iron Ltd. & others 1992 SCC Online Odisha
184; Naresh Kumar & others Vrs. Union of India 2023 SCC
W.P.(C) No.18997 of 2024 Page 10 of 34
OnLine Delhi 4919 and finally, Netra Pal Vrs. Tata Power Delhi
Distribution Ltd. in W.P.(C) No.13560 of 2023 besides Yashpal
Sharma Vrs. Tata Power Delhi Distribution Ltd. 2023 SCC Online
Del 6657 to further contend that the TPCODL is involved in
commercial activities and therefore, with such business and being
a private entity, it is not amenable to the writ jurisdiction.
12. On the contrary Mr. Das contends that the writ petition is
maintainable as the TPCODL is dealing with public functions and
a dispute challenging lateral entry through direct recruitment to
the promotional posts with a plea as to violation of the service
Regulations was once the subject matter in Surendra Kumar Sahu
Vrs. State of Odisha & others decided on 24th January, 2022 in
W.P.(C) No. 30107 of 2021, wherein, the writ petition against the
TPCODL has been held to be maintainable and therefore, the
preliminary objection by the opposite parties is inappropriate.
13. No doubt, the TPCODL as per the vesting order is a Special
Purpose Vehicle in which Tata Power Company Ltd. has 51% of
shares and rest is held by the State Government through GRIDCO
and admittedly, an autonomous body so to say and the question
is, whether, such an entity having any nexus with the
Government or falls within the expression 'State' or 'authority'.
14. At this juncture, it is apposite to reproduce Articles 12 and 226
(1) of the Constitution of India, which read as under:
"Article 12. In this Part, unless the context otherwise
requires, "the State'' includes the Government and
Parliament of India and the Government and the
Legislature of each of the States and all local or other
authorities within the territory of India or under the
control of the Government of India."
W.P.(C) No.18997 of 2024 Page 11 of 34
"Article 226(1). Power of High Courts to issue certain
writs:
(1)Notwithstanding anything in article 32 every High
Court shall have powers, throughout the territories in
relation to which it exercise jurisdiction, to issue to
any person or authority, including in appropriate
cases, any Government, within those territories
directions, orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, or any of them, for the
enforcement of any of the rights conferred by Part III
and for any other purpose."
15. The State is not defined in Article 12 and according to the
decision in Surendra Kumar Sahoo (supra), such determination is
inclusive in nature and observed in the following words that it
brings within its sweep all other authorities within the territory of
India or under the control of Government of India and does not
mean that such other authorities must be under the control of the
Government and the word 'or' appearing therein is disjunctive
and similarly, Article 226(1) envisages the power to issue writs to
any person or 'authority' and in appropriate cases, to a
Government, for enforcement of rights conferred under Part III of
the Constitution and for any other purposes and the expression
'authority' though carries a definite connotation but has different
dimensions and thus, must receive a liberal interpretation to
arrive at a conclusion, as to which, other authorities, could be
brought within the ambit of Article 12 or purview of the meaning
of the word 'authority' as mentioned in Article 226(1) of the
Constitution of India. It is further held therein that the term 'other
authorities' contained in Article 12 is not to be treated as ejusdem
generis and similarly, the word 'authorities' as appearing in Article
226 has to be taken into consideration for adjudication of the
W.P.(C) No.18997 of 2024 Page 12 of 34
matter itself. In the aforesaid decision, the further conclusion of
the Court is that the concept that all the Public Sector
Undertakings incorporated under the Indian Companies Act or
Societies Registration Act or any other Act, answering the
description of 'State', must be financed by the Central or State
Government and be under its deep and pervasive control, in the
past couple of decades, has undergone a sea change and thrust
now is not upon the composition of the body but the duties and
functions performed by it and therefore, the primary question,
which is required to be examined is, whether, the entity in
question exercises public functions.
16. In Ajay Hasia Vrs. Khalid Mujib Sehravardi (1981) 1 SCC 722,
the Constitution Bench of the Apex Court summarized the
principles to be considered for determination, whether, an entity
is a State or instrumentality of the State and the same are stated
hereunder:
"(1) One thing is clear that if the entire share capital
of the corporation is held by Government, it would
go a long way towards indicating that the
corporation is an instrumentality or agency or
Government.
(2) Where the financial assistance of the State is so
much as to meet almost entire expenditure of the
corporation, it would afford some indication of the
corporation being impregnated with governmental
character.
It may also be a relevant factor whether the
corporation enjoys monopoly status which is the
State conferred or State protected.
W.P.(C) No.18997 of 2024 Page 13 of 34
(3) Existence of deep and pervasive State control may
afford an indication that the corporation is a State
agency or instrumentality.
(4) If the functions of the corporation of public
importance and closely related to governmental
functions, it would be a relevant factor in classified
the corporation as an instrumentality or agency of
government.
(5) Specifically, if a department of Government is
transferred to a corporation, it would be a strong
factor supportive of this inference of the corporation
being an instrumentality or agency of Government."
17. In Andi Mukta Sadguru Shree Muktajee Vandas Swami
Suvarna Jayanti Mahotsav Smarak Trust Vrs. V.R. Rudani, the
Apex Court held as follows:
"15. If the rights are purely of a private character
no mandamus can issue. If the management of the
college is purely a private body with no public duty
mandamus will not lie. There are two exceptions to
Mandamus. But once these are absent and when the
party has no other equally convenient remedy,
mandamus cannot be denied. It has to be appreciated
that the appellants-trust was managing the affiliated
college to which public money is paid as Government
aid. Public money paid as Government aid plays a
major role in the control, maintenance and working
of educational institutions. The aided institutions like
Government institutions discharge public function by
way of imparting education to students. They are
subject to the rules and regulations of the affiliating
University. Their activities are closely supervised by
the University authorities. Employment in such
institutions, therefore, is not devoid of any public
character. So are the service conditions of the
academic staff. When the University takes a decision
regarding their pay scales, it will be binding on the
management. The service conditions of the academic
staff are, therefore, not purely of a private character.
W.P.(C) No.18997 of 2024 Page 14 of 34
It has super-added protection by University decisions
creating a legal right-duty relationship between the
staff and the management. When there is existence of
this relationship, mandamus cannot be refused to the
aggrieved party. XXX
17. There, however, the prerogative writ of
mandamus is confined only to public authorities to
compel performance of public duty. The 'public
authority' for them means everybody which is created
by statue and whose powers and duties are defined
by statue. So, Government departments, local
authorities, police authorities, and statutory
undertakings and corporations, are all 'public
authorities'. But there is no such limitation for our
High Courts to issue the writ 'in the nature of
mandamus'. Article 226 confers wide powers on the
High Court to issue writs in the nature of prerogative
writs. This is a striking departure from the English law.
Under Article 226, writs can be issued to 'any person
or authority'. It can be issued 'for the enforcement of
any of the fundamental rights and for any other
purpose'. XXX
19. The term 'authority' used in Article 226, in the
contest, must receive a liberal meaning like the term
in Article 12. Article 12 is relevant only for the
purpose of enforcement of fundamental rights under
Art.32. Article 226 confers power on the High Courts
to issue writs for enforcement of the fundamental
rights as well as non-fundamental rights. The words
'any person or authority' used in Article 226 are,
therefore, not to be confined only to statutory
authorities and instrumentalities of the State. They
may cover any other person or body performing
public duty. The form of the body concerned is not
very much relevant. What is relevant is the nature of
the duty imposed on the body. The duty must be
judged in the light of positive obligation owed by the
person or authority to the affected party. No matter
by what means the duty is imposed. If a positive
obligation exists mandamus cannot be denied."
W.P.(C) No.18997 of 2024 Page 15 of 34
18. In the above decision, the Supreme Court carved out the
following exceptions, such as, if the rights are purely of a private
character and if the management of a college is purely a private
body with no public duty, writ of mandamus shall not lie,
however, it was clarified that since the trust in the said case was
an aided institution, it discharges public function like a
Government institution by way of imparting education to
students, more particularly when, rules and regulations of the
affiliating University are applicable to such an institution and in
that case, the service conditions of academic staff were not purely
of a private character as the staff have the protection against any
decision of the University with the creation of a legal right and
duty in relationship between them and the Management.
19. In Andi Mukta Sadguru (supra), the term 'authority' used in
Article 226 of the Constitution of India was explained in the
context to receive a liberal meaning unlike the term in Article 12,
which is relevant only for the purpose of enforcement of
fundamental rights, whereas, Article 226 confers powers to issue
writs not only to enforce any of the fundamental rights but also
such other rights and therefore, the term 'authority' occurring
therein would cover any other person or body performing public
duty and the guiding factor is, therefore, the nature of duty
imposed on such an entity, namely, public duty to make it eligible
to the writ jurisdiction.
20. The decision in St. Mary's Education Society Vrs. Rajendra
Prasad Bhargava and others (2023) 4 SCC 498 referred to by Mr.
Parija, learned Senior Advocate relates to a case where the
question was, whether, writ jurisdiction under Article 226 of the
W.P.(C) No.18997 of 2024 Page 16 of 34
Constitution of India may be exercised against a private unaided
minority educational institution, wherein, the challenge was to
the termination of an employee and therein, the Apex Court held
that the same is not maintainable, since public law element was
not involved in such action with a conclusion that power of
judicial review can be exercised even if the body against which
action is sought is not State or instrumentality of State provided
there is public element in action is complained of. While
explaining further in the decision (supra), it is held that if action
impugned has no nexus with public element, even though the
private body in question may be discharging public function, writ
jurisdiction cannot be invoked in such a case. In the context that
the right of the employee originated from a private law, it cannot
be enforced taking aid of the writ jurisdiction as it was held and
observed therein irrespective of the fact that such institution is
discharging public duty or function and scope of mandamus is
limited to enforcement of a public duty and the terms of contract
should not be construed to be inseparable part to impart
education particularly in respect of disciplinary proceedings that
may be initiated against the employee. So, the ratio decided by
the Apex Court in the above cited case is that even against a
private entity not receiving any aid from the Government may be
amenable to writ jurisdiction provided the action under challenge
has a public element. The following is the law on the issue as
enunciated by the Apex Court in St. Mary's Education Society case
as summarized below:
We may sum up our final conclusions as under:
(a) An application under Article 226 of the
Constitution is maintainable against a person or a
W.P.(C) No.18997 of 2024 Page 17 of 34
body discharging public duties or public functions.
The public duty cast may be either statutory or
otherwise and where it is otherwise, the body or the
person must be shown to owe that duty or
obligation to the public involving the public law
element. Similarly, for ascertaining the discharge of
public function, it must be established that the body
or the person was seeking to achieve the same for
the collective benefit of the public or a section of it
and the authority to do so must be accepted by the
public.
(b) Even if it be assumed that an educational
institution is imparting public duty, the act
complained of must have a direct nexus with the
discharge of public duty. It is indisputably a public
law action which confers a right upon the aggrieved
to invoke the extraordinary writ jurisdiction
under Article 226 for a prerogative writ. Individual
wrongs or breach of mutual contracts without having
any public element as its integral part cannot be
rectified through a writ petition under Article 226.
Wherever Courts have intervened in their exercise of
jurisdiction under Article 226, either the service
conditions were regulated by the statutory provisions
or the employer had the status of "State" within the
expansive definition under Article 12 or it was found
that the action complained of has public law
element.
(c) It must be consequently held that while a
body may be discharging a public function or
performing a public duty and thus its actions
becoming amenable to judicial review by a
Constitutional Court, its employees would not have
the right to invoke the powers of the High Court
conferred by Article 226 in respect of matter relating
to service where they are not governed or controlled
by the statutory provisions. An educational
institution may perform myriad functions touching
various facets of public life and in the societal sphere.
While such of those functions as would fall within the
domain of a "public function" or "public duty" be
undisputedly open to challenge and scrutiny
W.P.(C) No.18997 of 2024 Page 18 of 34
under Article 226 of the Constitution, the actions or
decisions taken solely within the confines of an
ordinary contract of service, having no statutory
force or backing, cannot be recognised as being
amenable to challenge under Article 226 of the
Constitution. In the absence of the service conditions
being controlled or governed by statutory
provisions, the matter would remain in the realm of
an ordinary contract of service.
(d) Even if it be perceived that imparting
education by private unaided the school is a public
duty within the expanded expression of the term, an
employee of a nonteaching staff engaged by the
school for the purpose of its administration or
internal management is only an agency created by it.
It is immaterial whether "A" or "B" is employed by
school to discharge that duty. In any case, the terms
of employment of contract between a school and
nonteaching staff cannot and should not be
construed to be an inseparable part of the obligation
to impart education. This is particularly in respect to
the disciplinary proceedings that may be initiated
against a particular employee. It is only where the
removal of an employee of nonteaching staff is
regulated by some statutory provisions, its violation
by the employer in contravention of law may be
interfered by the court. But such interference will be
on the ground of breach of law and not on the basis
of interference in discharge of public duty.
(e) From the pleadings in the original writ
petition, it is apparent that no element of any public
law is agitated or otherwise made out. In other
words, the action challenged has no public element
and writ of mandamus cannot be issued as the action
was essentially of a private character.
21. In the case at hand, the TPCODL is since involved in
commercial activities, it is claimed that the same is not subject to
writ jurisdiction and while advancing such an argument, the
decision in Saiyam Mishra and others Vrs. AIR India Ltd. and
W.P.(C) No.18997 of 2024 Page 19 of 34
others, 2023 SCC OnLine Del 4904 is cited. The TPCODL is a
Special Purpose Vehicle in which the TATA Power Company Ltd.
holds 51 % of shares and 49% is held by the State Government
through GRIDCO. It is claimed that the majority of shareholding
is owned by the TATA Power Company Ltd. and hence, there is
no State control over the TPCODL and to support such a
contention, the decision in Dinesh Kumar Behera Vrs. Orissa
Sponge Iron Limited and others 1992 SCC OnLine Ori 184 is
referred and to further contend that an autonomous body having
no nexus with the Government does not fall within the definition
of the 'State' as appearing in Article 12 of the Constitution of
India. The relevant extract of the above decision is reproduced
hereinbelow.
"7. It is not necessary to proliferate this judgment
with large number of decisions on the point. Suffice
it would to notice two Full Bench decisions of this
Court in Satrughana Rout v. Managing Director,
Tribal Development Co-operative Corporation of
Orissa Ltd., 73 (1992) C.L.T. 588 (F.B.), and
Banabehari Tripathy v. Registrar of Co-operative
Societies I 67 (1989) C.L.T. 5 (F.B.), and a decision of
the apex Court in Chandar Mohan Khanna v. The
National Council of Educational Research and
Training I (1991) 4 SCC 578: A.I.R. 1992 S.C. 76.
Question whether an entity can be regarded as an
instrumentality of the State would be dependent on
various factors which may be peculiar to the facts of
a peculiar case. No specific fact can be held to be
conclusive and an over-all and cumulative view has
to be taken. No straitjacket formula can be laid
down. Every autonomous body which seems to have
nexus with the Government is not to be
encompassed within the sweep of expression "State"
as appearing in Article 12. In the modern concept of
welfare State, independent institutions corporations
and agents are generally subject to the State control.
W.P.(C) No.18997 of 2024 Page 20 of 34
That would, however, not make them State under
Article 12. From the Memorandum of Association
and the Articles of Association of the Company, the
annual report for the year 1988-89 and the
prospectus annexed as Annexure-6 to the rejoinder
affidavit filed, we do not find that the Company is
discharging any such functions which may make it an
instrumentality of the State. It is not disputed by the
learned counsel for petitioner that neither the State
of Orissa nor the Central Government holds any
share in the Company. It is, however, asserted that
the share held by the Industrial Promotion and
Investment Corporation of Orissa Limited (in short,
'IPICOL') and some such body corporates which
undisputedly come within the ambit of Article 12 of
the Constitution, should be considered to be
investment by the State. It is, however, not disputed
that fairly large amounts have been realised by issue
of equity share to the public. From the prospectus
and the annual report of 1988-89 to which reference
was made by the learned counsel for the parties, we
find that 60,00,000 equity shares of Rs. 10/- each
have been issued and paid up. After taking into
account calls unpaid the amount stands at
Rs.5,91,57,250/- as on 31-3-1989. Even if the
shareholding of IPICOL and such other corporate
bodies is taken up to be a sizeable amount, that per
se would not be of great importance. In Chander
Mohan Khannas case (supra) and Tekraj Vasandhi
alias K.L. Basandhi v. Union of India, (1988) 1 SCC
236: A.I.R. 1988 S.C. 469, it was observed by the
apex Court that contribution by the State to a body
corporate may be substantial so much so the same
constituted the main source of functioning; but that
would not be of great importance, since money was
also coming from other source. The shareholding by
any instrumentality of the State would not make it
shareholding by the State itself. We do not find any
substance in the argument of the learned counsel for
petitioner that because IPICOL and some other body
corporates have shares in the Company, that would
make it an instrumentality of the State."
W.P.(C) No.18997 of 2024 Page 21 of 34
22. The contention is that holding of 49 % share in TPCODL
by the Government through GRIDCO would not mean that the
State has control over the Company and hence, it cannot be
brought within the ambit of State under Article 12 of the
Constitution.
23. The TPCODL is regulated by the OERC. The expenditure
incurred by it is recovered from the consumers through tariff
determined by the OERC. It is claimed that the distribution of
electricity is merely concerned providing commercial services and,
in that connection, one more decision of Delhi High Court in
Netrapal VRs. Tata Power Delhi Distribution Ltd. in W.P.(C)
No.13560 of 2023 is relied on.
24. Admittedly, there is disinvestment and the TPCODL is a
Special Purpose Vehicle, which is to manage distribution of power
in the State with other related activities. As earlier stated, the State
Government has a shareholding of 49%, whereas, the rest is by
the Tata Power Company Limited. Whether, in case of a private
entity, it would really be amenable to the writ jurisdiction? In
case, a company or corporation, where, the State Government
has a role or it is financially, functionally or administratively
under the control of the Government as has been held by the
Apex Court in Pradip Kumar Biswas Vrs. Indian Institute of
Chemical Biology (2002) 5 SCC 111, whatever, little control of the
Government has or may be said to have, is not pervasive in
nature and such limited control is purely regulatory and nothing
more, however, with the majority view, it was held that when a
private body exercises its public functions, even if, it is not a part
of the State, the aggrieved person has a remedy, not only under
W.P.(C) No.18997 of 2024 Page 22 of 34
the ordinary law but also under the Constitution of India by
invoking writ jurisdiction under Article 226. Taking into account
the case laws referred to hereinbefore, the conclusion of the
Court is that in case of public entity, no doubt, action under
Article 226 is available. But in case of company or corporation or
a non-governmental body, writ jurisdiction may be exercised
where some element of public duty and function is involved. It is
not about any less shareholding of the Government in a
company, a material consideration to determine, whether, the
same would be amenable to the jurisdiction under Article 226 of
the Constitution of India. It is not about the institution or the
entity and composition or structure of the same, which is only to
play a role but for the activities undertaken by it, is to determine,
whether, to fall within the meaning of 'authority' under Article
226 of the Constitution of India, if the same is in the nature of a
public duty, even if, not a State for the purpose of Article 12.
25. In fact, on the point of maintainability, the Court is
inclined to sum up its conclusion and the same is as follows:
(i) To be subject to the writ jurisdiction, the entity must have to
fall within the definition of the 'State' under Article 12 or
'authority' as occurring in Article 226 of the Constitution of India;
(ii) Mere shareholding of the Government does not make an
entity or body amenable to the jurisdiction exercisable by a writ
court, where, it may have only a regulatory role;
(iii) Irrespective of the organizational structure, whether, private
or otherwise, if the entity has a public function to discharge, it is
to be held as subservient to the writ jurisdiction;
W.P.(C) No.18997 of 2024 Page 23 of 34
(iv) Despite being involved in a way which may be said to be
commercial activities or it generates, some profit from out of
which any tariff is charged, the writ jurisdiction is not excepted, if
an element of public function is shown to exist;
(v) Notwistanding the nature of dispute, employees of an entity
are entitled to invoke the writ jurisdiction, which is largely
involved in public function;
26. As far as the case at hand is concerned, no doubt the TPCODL
being a Special Purpose Vehicle is an independent body or entity,
nonetheless, is a work force to ensure distribution of power with
ancillary activities but since a part of public utility service has an
element of public function, hence, shall have to be held as
amenable to the writ jurisdiction notwithstanding any such
shareholding of a private company and therefore, the argument
against maintainability of the writ petition as put forth from the
side of the TPCODL is liable to be rejected.
27. The next consideration would be, whether, the order of
transfer and posting of opposite party No.3 by a decision of the
opposite parties is justified and permissible. According to Mr. Das,
learned counsel for the petitioner, opposite party No.3 is an
outsider and therefore, he could not have been posted in the
capacity, as has been allowed, hence, the impugned decision is
liable to be interfered with. It is contended that opposite party
No.3 is not a cadre official and as a result of such posting, there
would be administrative inconvenience as also the hierarchy being
dismantled with some of the officers losing the promotional
avenue as well.
W.P.(C) No.18997 of 2024 Page 24 of 34
28. On the contrary, it is challenged by Mr. Parija, learned Senior
Advocate with an argument that the petitioners do not belong to
any cadre as against the claim that opposite party No.3 has been
brought into the cadre of E-5 Grade post and it is contended that
there is no bar for any posting. The contention is that after
vesting of the CESU utility in the TPCODL, all the existing
staff/employees of CESU were transferred accordingly. In other
words, the employees of the CESU have become the employees
of the TPCODL and as such, there is no cadre and reference is
made to a decision in the case of Panchraj Tiwari Vrs. Madhya
Pradesh State Electricity Board & Others (2014) 5 SCC 101. It is
argued that once the service is merged with another, the merged
service gets its birth in the integrated service and looses the
original identity and furthermore, there cannot be a situation
where even after merger, absorption or integration, the services,
which are merged or absorbed still retain their original status.
29. The impugned decision is justified by the opposite parties
referring to the vesting order. At this juncture, it is necessary to
extract the relevant clause of the vesting order and the same is as
follows;
"49. Treatment of existing employees.
(a) As part of the terms of RFP, all the existing
staff/employees of CESU as on the effective date shall
be transferred to TPCODL excluding personnel on
deputation from the State Government of Odisha.
(b) CESU has on its rolls, 4,917 (Four thousand
nine hundred and seventeen) number of regular
employees and 435 (Four hundred thirty-five)
number of contractual employees as of 31.05.2020.
W.P.(C) No.18997 of 2024 Page 25 of 34
(c) All such staff shall form a part of TPCODL and
shall be governed by the terms of their appointment.
The terms and conditions of employment of these
employees in TPCODL shall not be made inferior to
their existing service conditions in any manner.
TPCODL shall have the operational flexibility to
design the organization structure to ensure efficiency
in operations and staff deployment."
As per the above, the employees of the CESU brought in to
the TPCODL and their terms and conditions of employment shall
not be poorer to the existing service conditions, however, the
company shall have the functioning flexibility to design the
organization structure and the same is for the purpose of ensuring
operational efficiency and staff deployment.
30. On a combined reading of the relevant clauses of the
vesting order, it would be clear and conspicuous that the TPCODL
has been allowed the leverage to devise its own staff deployment,
plan and management structure exercising operational flexibility.
As per the vesting order, all the employees of the CESU stood
transferred to the TPCODL, however, the service conditions of
such employees have been protected, which are to be governed
as per the terms of appointments, which means, upon the vesting
and transfer, the conditions of the service shall not be altered to
their detriment.
31. Mr. Parija, learned Senior Advocate refers to a decision of
the Apex Court in the case of B. Varadha Rao Vrs. State of
Karnataka and others (1986) 4 SCC 131 to contend that there is no
illegality in the transfer and posting of opposite party No.3,
which has taken place like any other employees of the TPCODL
including the petitioners since, according to the settled principle
W.P.(C) No.18997 of 2024 Page 26 of 34
of law, transfer is an incidence of service and not a condition of
service, so therefore, the challenge to the same on the premise
that there is encroachment into the cadre by such posting of
opposite party No.3 is completely misplaced.
32. Mr. Das, learned counsel for the petitioners refers to the
orders of the OERC in Case No.27 of 2020 to claim that the
request for review as against the restrictions placed in the vesting
order was denied and dismissed. In reply, the contention of Mr.
Parija, learned Senior Advocate is that the review was not filed
only on the ground of any such conditional restrictions imposed
towards operational flexibility and that apart, the order of the
OERC dated 20th December, 2020 makes it clear that no
limitation has been placed on the TPCODL to design its
organizational structure. Referring to the order of the OERC
dated 1st September, 2021 in Case No.87 of 2020 filed by the
Union representing the employees of the power sector in the
State of Odisha against the recruitment being made by the
TPCODL on the ground that the same is in violation of the
vesting order and affects the service conditions of the Non-CTC
employees was rejected with a finding that the TPCODL is
entitled to not only lateral engagement in term of the vesting
order but shall have the operational flexibility as well, which
includes new recruitments and the same encompasses within itself,
the transfer and posting of the employees to the posts, in which
such employees to be appointed. In fact, as per the aforesaid
order in Case No.87 of 2020, the OERC has allowed new
induction in consonance with the vesting order as the TPCODL
has been provided the operational flexibility to design the
organizational structure, however, observed that recruitment of
W.P.(C) No.18997 of 2024 Page 27 of 34
large number of employees in the executive cadre should not be
taken up in a single year as it would have a huge impact on the
employees costs and consequently, on tariff and further
recognizing the deficit of man power and aware of the fact that in
the DISCOMs, no new significant recruitment has been made
during a period of ten years and the ratio of the employees vis-a-
vis consumers has also widened over the years and bringing new
employees is to bridge the gap for efficient functioning of the
DISCOMs and as such, the Commission is not averse in allowing
employee costs, which is just and as per the norms of the relevant
industry and the decision is to avoid any such large scale
recruitment in a short period was considered to choke the career
growth besides causing tariff shock, instead, it should be spread
over a longer period. In such view of the matter, new
recruitments are not really prohibited, which the TPCODL can
undertake as a means of ensuring operational efficiency to design
the organizational structure but at the same time, it is not to affect
the service conditions of the erstwhile employees of the CESU,
who have been absorbed and have become the employees of the
TPCODL post-vesting.
33. In Rajendra Singh and others Vrs. State of U.P. and others
(2009) 15 SCC 178, the Apex Court had the occasion to consider
the scope of judicial review in dealing with a dispute over
transfers of employees and held in the following words:
"8. Insofar as the transfer of Writ Petitioner from
Ghaziabad-IV to Hapur-II is concerned, the High
Court found that the transfer order has not affected
his service conditions AIR 1991 SC 532 (1994) 6 SCC
1998 and pay and other benefits attached to the post
which was held by him. As a matter of fact, the High
W.P.(C) No.18997 of 2024 Page 28 of 34
Court did not find any flaw in the transfer of the
Writ Petitioner from Ghaziabad-IV to Hapur-II. As
regards Respondent No. 5, the High Court
considered the matter thus:
“…In our view, it is evident that the respondent No.
5 also cannot be said to be an Officer having a better
conduct and integrity in comparison to the petitioner
justifying his posting at Ghaziabad and in this regard,
it appears that I.G. (Stamps) did not give correct
information to the Principal Secretary. However, it
cannot be held that the respondent No. 1 in passing
order dated 31st July, 2007 has acted maliciously or
for extraneous reasons amounting to malafide. Once
the basic ground of challenge to the impugned order
of transfer that the same is malicious in law falls, we
do not find any reason to interfere with the
impugned order of transfer, transferring the
petitioner from Ghaziabad to Hapur. It is not the
case of petitioner that his transfer is contrary to rules
or has been issued by an authority who is not
competent. It is well settled that an order of transfer
is amenable for judicial review on limited grounds
namely it is contrary to rules or has been passed an
incompetent authority or is a result of malafide. In
view of admission on the part of the respondent No.
1 in his Counter Affidavit that the respondent No. 5
has been found guilty of serious misconduct for
causing loss to the Government revenue by acting
without jurisdiction and colluding evasion of stamp
duty, in our view transfer of the respondent No. 5 to
Ghaziabad cannot be sustained in view of further
admission on the part of the respondent No. 1 that
the interest of department requires posting of an
honest and efficient person at Ghaziabad.”
“9. It is difficult to fathom why the High Court
went into the comparative conduct and integrity of
the petitioner and Respondent No. 5 while dealing
with a transfer matter. The High Court should have
appreciated the true extent of scrutiny into a matter
of transfer and the limited scope of judicial review.
Respondent No. 5 being a Sub-Registrar, it is for theW.P.(C) No.18997 of 2024 Page 29 of 34
State Government or for that matter Inspector
General of Registration to decide about his place of
posting. As to at what place Respondent No. 5
should be posted is an exclusive prerogative of the
State Government and in exercise of that
prerogative, Respondent No. 5 was transferred from
Hapur-II to Ghaziabad- IV keeping in view
administrative exigencies.”
34. Similarly in Pubi Lombi Vrs. State of Arunachal Pradesh &
others 2024 SCC OnLine SC 279, the Supreme Court concluded
and held as under:
“15. In view of the foregoing enunciation of law by
judicial decisions of this Court, it is clear that in
absence of (i) pleadings regarding malafide, (ii) non-
joining the person against whom allegation are
made, (iii) violation of any statutory provision (iv)
the allegation of the transfer being detrimental to the
employee who is holding a transferrable post,
judicial interference is not warranted. In the sequel
of the said settled norms, the scope of judicial review
is not permissible by the Courts in exercising of the
jurisdiction under Article 226 of the Constitution of
India.”
35. The settled legal position of law is that scope of a writ court is
narrow and limited unless such transfer is vitiated by any statutory
law or actuated with malafide. The Courts are held to be
reluctant in interfering in the transfer of employees as concluded
in Rajendra Singh (supra) referring to the decision in Shilpi Bose
and others Vrs. State of Bihar and others1992 SCC (L&S) 127,
wherein, it was held that a Court should not interfere with a
transfer, which is made in public interest and for administrative
reasons, unless the same is in violation of any mandatory
statutory rule or on account of any glaring malafide. Considering
the above case laws, the Court is to hold that a transfer is
W.P.(C) No.18997 of 2024 Page 30 of 34
permissible and decision towards the same lies with the employer
and unless, there is violation of any statutory rules or is alleged of
being malafide, a writ court is not to exercise the jurisdiction, as
in any case, transfer is an incidence of service.
36. Whether, opposite party No.3 is included in the cadre,
hence, opposed by the petitioners? It is not a case of merger of
cadre. The petitioners and opposite party No.3 are the employees
of the TPCODL. However, the grievance of the petitioners is that
opposite party No.3 posted as Divisional Manager (BED),
Bhubaneswar, which is not a cadre post for him and on the
contrary, it belongs to the cadre strength of petitioner No.1. The
contention is that since opposite party No.3 does not belong to
the cadre of the Divisional Manager or E-5 Grade or any of the
Grade from E-1 to E-10, therefore, such posting is not permissible.
The job of opposite party No.3 as further alleged is different all
together and it has nothing to do with the duty and responsibility
assigned for the officials of E-1 to E-10 Grade and he having never
joined in any of the cadres or even worked for a day, the posting
as the Divisional Manager is illegal and in violation of the cadre
rules. The reply of Mr. Parija, learned Senior Advocate is that such
grievance of the petitioner is ex-facie illusory and bereft of any
merit and hence, does not call for any attention. It is contended
that the opposite parties treat all the employees at par and does
not discriminate and to ensure career advancement and
operational efficiency side by side, opportunities are provided to
all the employees to take up critical and challenging roles through
horizontal and vertical movements in the organizational structure.
Is the impugned order of transfer and posting vis-à-vis opposite
party No.3 and others affects the service conditions of the
W.P.(C) No.18997 of 2024 Page 31 of 34
petitioners? According to the opposite parties, there is no breach
in the existing service conditions of the petitioners and the same is
merely an apprehension devoid of any merit and even factually
erroneous and therefore, no valid reason exists to interfere with
the order of transfer. Referring to the Regulations, it is further
submitted that every officer is liable for transfer to any office,
place of work of the company. It is contended that the Board of
Directors of the TPCODL, which includes the Chief Secretary,
Government of Odisha and nominees of Tata Power Company
Limited duly considered the requirements for efficiently operating
the organization and approved a Schedule of Authority (SOA),
wherein, CTC employee with the designation of HOD has been
placed at a level with DGM/AGM of the non-CTC employee and
accordingly, their authorities and responsibilities at such levels are
fixed. It is lastly contended that the petitioners are rather trying to
create a hostile environment within the organization and
interfering with the decision of the Board of Directors, which is in
accordance with the vesting order and as per the SOA.
37. In case of promotion of E-5 cadre of an employee, it is
claimed that such cadre has multiple posts to accommodate and
the same is not in any way affected due to the posting order and
it is not that such promotion from E-4 cadre needs a posting as
the Divisional Manager, (BED), Bhubaneswar. It has been brought
to the notice of the Court that E-5 cadre allows number of
postings in different departments and an officer on promotion
can be posted in any of the positions in such departments and
while claiming so, Annexure-M/1 of the counter affidavit is
referred to. A distinction is also sought to be made that
promotion of the petitioners and for that matter, other officials is
W.P.(C) No.18997 of 2024 Page 32 of 34
not affected that the chance of being promoted is not a
substantive right, though, is the zone of consideration. Some
citations are referred to buttress the above argument but there is
no quarrel over the settled legal position that everyone has a right
to be considered for promotion but not the chance of promotion,
which cannot be predicated. As regards, the plea or concern of
the petitioners, it is not a case of merger of cadres but at the same
time, no encroachment into the cadre is established. If someone,
who may not be of the cadres to which the petitioners belong but
by his posting to manage the affairs of a particular department, in
one of such capacities, which one among the cadres do manage
and normally deal with, in the humble view of the Court, cannot
be held to be a case of entering into a cadre destroying the
hierarchy. If one sneaks in to the cadre, certainly the same cannot
be condoned. But, without any such exercise, mere posting of
someone in an establishment, like the present, to discharge a
particular function, where operational flexibility is permissible to
uphold and ensure efficiency, in the ultimate view of the Court, it
would not be just and proper to attribute any kind of impropriety
to the impugned decision.
38. At the same time, the Court, before winding up, is not
hesitant to observe that notwithstanding the operational
flexibility, large scale postings by lateral means is not expected.
Any such posting must necessarily be need based and considering
the exigency and should not normally be a routine exercise, the
reason being quite obvious, a situation, which the Board of
Directors of the TPCODL can only fathom and deal with sensibly.
39. Hence, it ordered.
W.P.(C) No.18997 of 2024 Page 33 of 34
40. In the result, the writ petition stands disposed of with the
conclusion reached at and observations made herein above. In the
circumstances, however, there is no order as to costs.
(R.K. Pattanaik)
Judge
Kabita/Balaram
Signature Not Verified
Digitally Signed
Signed by: BALARAM BEHERA
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 24-Dec-2024 19:27:44
W.P.(C) No.18997 of 2024 Page 34 of 34