ivil Appeal No 5336  5337 of 1983
From the Judgment and Decree dated 157
1982 of the Andhra Pradesh High Court in WA No 194 of 1981
PP Rao section Sitaramayya K Parasaran TVSN Chari Ms B Sunita Rao Ms Manjula Gupta B Parthasarthi A Subba Rao ADN Rao and KR Choudhary for the appearing parties
The Judgment of the Court was delivered by SAWANT J
These matters have a chequered history
The appellants as well as most of the contesting respondents were appointed as Junior Engineers in the Andhra Pradesh Electricity Subordinate Service on emergency basis between 1959 and 1963
While they were in service on April 24 1963 the Andhra Pradesh Public Service Commission hereinafter referred to as the Commission invited applications for regular appointment by direct recruitment to 246 posts of Junior Engineers and on December 21 1963 the Commis 916 sion forwarded a list of selected candidates to the State Government
This list was however not arranged according to merits and therefore according to seniority inter se among the candidates
On April 15 1964 the Commission forwarded to the Government the list of selected candidates arranging their names according to merits and seniority and after complying with the reservation prescribed by Rule 22iic of the Andhra Pradesh State and Subordinate Serv ice Rules hereinafter referred to as the Rules by which the relevant service was governed
On August 11 1964 the State Government amended the said Rules by deleting the said Rule 22iic with retrospective effect from April 1 1964
This amendment was effected to comply with the decision of this Court in MR Balaji  Ors
vs State of Mysore  Supp 1 SCR
In spite of the fact that the Rules were so amended on August 11 1964 with retrospec tive effect the State Government on April 29 1965 gazetted the list of selected candidates as was sent to them by the Commission on April 15 1964
The result was the list as gazetted was in breach of the said Rules
After the gazette notification on April 29 1965 the Chief Engineer of the Government appointed all the said candidates to the posts of Junior Engineers who included the appellants and the re spondents and others according to the order of seniority communicated by the Commission
The candidates so appointed were put on probation for a total period of two years
The seniority as notified in the said list was chal lenged by a Writ Petition No 2 146 of 1966 in the High Court of Andhra Pradesh in November 1966 by 10 Junior Engi neers belonging to the non reserved category on the ground that the same was in breach of law since it was contrary both to the said decision of this Court as well as to the Rules as they stood amended on August 11 1964 wef April 1 1965
The learned Single Judge disposed of the said Writ Petition on the assurance of the Government contained in their Memo
No 3373 E70 dated July 17 1970 addressed to the Government Pleader that the seniority list would be revised in compliance with the amended Rules so far as the petitioners were concerned
Unfortunately the learned Judge did not appreciate the discrimination to which the said assurance was to lead since the assurance related only to the petitioners before him and had excluded the rest of the Junior Engineers similarly situated
The matter however rested there
On December 28 1972 the State Government gave an option to all the Junior Engineers including the petitioners and the respondents to choose between the government service and a permanent 917 transfer to the Andhra Pradesh State Electricity Board
Before the transfers could be effected it appears that there was a correspondence between the Government and the Commission for changing the seniority list pursuant to the assurance given by the State Government to the learned Single Judge
The Commission opined that the seniority list could not be altered in respect of only 10 petitioners in the said Writ Petition and had to be altered in respect of all the candidates selected to comply with the amended Rules
Accordingly the Commission on June 27 1973 sent the corrected seniority list to the State Government
The Gov ernment accepted the said list and on July 23 1973 direct ed its Chief Engineer to circulate the said revised list and to invite objections to the same within a stipulated period Accordingly the Chief Engineer by his Memo
dated August 8 1973 circulatedthe said seniority list and invited objections from all the concerned Junior Engineers
Most of them including the respondents submitted their objections by October 1 1973 on and from which date those of the Junior Engineers including the petitioners and respondents who had exercised their option to join the Electricity Board were transferred to the Board
The Government transferred the Junior Engineers who had opted for service with the Board by its Order of Novem ber 7 1973 wef October 1 1973 as stated above
That order being GOM No 1166 assumes importance in the present case since the contents of paragraph 63 and 64 of the said document are relied on by the High Court as well as both sides in support of their respective contentions
The said contents may be reproduced here at the outset 63
The transfer is on as is  basis and the names in the Annexure are not arranged in the order of seniority on that basis 64
On transfer to the Andhra Pradesh State Electricity Board the individuals will carry with them the seniority as it existed under Government as on 11073 without prejudice of the seniority of the persons referred to in sub para 1 above who may be transferred to the Board by a subsequent order of the Government and the seniority with reference to the position between 1111956 to 1101973 is liable to be altered by Government at any time with reference to pending appeals on Common Gradation Lists or with reference to the recommendations of High powered 918 Committee State Advisory Committee Central Advisory Com mittee etc
On November 5 1974 the Chief Engineer of the Elec tricity Board to which the petitioners and respondents had stood transferred permanently from October 1 1973 after considering the representations against the seniority list received from the affected Junior Engineers issued a re vised seniority list
This seniority list was challenged by the respondents and others who belonged to backward classes by a Writ Petition No 608474 filed in the High Court in May 1972
The learned Single Judge who tried the said writ petition by his order of March 29 1978 struck down the said list on the ground that the Chief Engineer of the Electricity Board had no power to alter the seniority of the transferred employees whose seniority was fixed by the State Government
However he observed that if the Government had retained any power under the transfer order and if it was so advised the Government would be at liberty to revise the seniority list
Aggrieved by the said order the petitioners on August 25 1978 preferred an appeal before the Division Bench of the High Court dismissed it
In view of the observations made by the learned Single Judge the Government on August 23 1979 issued show cause notices once again to all the persons belonging to backward classes the respondents to show cause why their seniority should not be revised as per the assurance given by the Government to the High Court while disposing of Writ Petition No 2 14666
Some of the respondents replied to the show cause notice on November 18 1979 and some of them filed a Writ Petition in the High Court being Writ Petition No2 15 of 1980 on December 7 1979 for restraining the Government from revising the seniority pursuant to the show cause notice
At the same time in February 1986 some of the petitioners in Writ Petition No 2 14666 filed Writ petition No 58280 before the High Court for seeking a direction to the Government to implement the assurance given by it while disposing of the said Writ Petition
The learned Single Judge by his decision of February 5 198 1 dismissed the respondents  petition upholding the power of the Govern ment to revise the seniority list and in view of the said order passed in respondents  writ petition no orders were passed in the petitioners  petition
Aggrieved by the said decision the respondents preferred an appeal on March 30 198 1 to the Division Bench
Since no stay was granted pending the appeal the Government by its order dated May 919 26 198 1 issued a final revised seniority list after con sidering the representations of the persons belonging to the backward classes including the respondents
Thereafter on July 15 1982 the Division Bench of the High Court allowed the appeal of the respondents holding that the Government had no power to revise the seniority list
It is this deci sion which is under challenge
On behalf of the respondents some further connected developments have been brought to out notice
It appears that along with the appellants and respondents who were the Degree holders some Diploma holders were transferred to the Board wef the same date namely October 1 1973
Some of them had preferred on April 16 1980 a Writ Petition being Writ Petition No 165780 before the High Court for a direc tion to the Government to prepare a seniority list of As sistant Engineers who were appointed from June 15 1963 in accordance with the statutory Rules and to communicate the same to the Board
On April 16 1982 a learned Single Judge allowed the said petition upholding the plea that the said order No 1166 dated November 7 1973 had given powers to the State Government to settle the seniority of the trans ferred employees as on October 1 1973
This decision was upheld in appeal by a Division Bench of the High Court by its decision of March 26 1987
The Special Leave Petitions Nos 8044 and 10783 of 1987 preferred against the said decision were dismissed by this Court on October 30 1987 and this Court directed the Board to implement the order of the High Court subject to any decision which may be rendered by this Court in the present appeals
On August 4 1989 the State Government communicated the seniority list of the Assistant Engineers to the State Electricity Board and the Board is acting on the same
The result is that whereas the petitioners namely the Diploma holders in the said Writ Petition No 165780 are the beneficiaries of the revised seniority list the present appellants are not
The High Court has quashed the revised seniority list on three grounds
The first ground is that the employ ees having exercised their option under the Government Orders Nos 1651 and 1166 dated December 28 1972 and Novem ber 7 1973 respectively subject to the terms and conditions mentioned therein they were estopped from contending that the seniority which they carried with them as it existed under the Government as on October 1 1973 cannot be contin ued further and was liable to be disturbed because the rule of reservation contained in old Rule 22iic was declared by this Court to be violative of Articles 14 and 16 of the Constitution of India
The High Court 920 further opined that there was a declaration in GO No 1166 of November 7 1973 which was binding on all the concerned viz the Government the Board as well as the employees that the exercise of the option was final
Since the Govern ment and the Board had acted upon the option exercised by the employees and transferred them from Government service to the service of the Board they were estopped from revis ing the seniority
So also the employees were estopped from claiming that their seniority should be revised on any grounds whatsoever
The second ground given by the High Court was that the transfer itself being subject to the terms and conditioned mentioned in the aforesaid Government Orders which stated that the transfers were on as is basis which included seniority the seniority cannot be disturbed on any ground whatsoever
The High Court stated in this connection that the employees concerned were specifically notified that the names mentioned in the Annexure were not arranged in the order of seniority and they were further notified that the employees would carry with them the sen iority as it existed on October 1 1973 the only exception being of those employees who were mentioned specifically in sub para 1 of paragraph 6 of GO No 1166
Those persons were non gazatted technical staff ministerial and few others whose options were not received by the Government on account of the delay in transit or for other reasons
The High Court negatived the contention that clause 4 of GO No 1166 which stated that the employees will carry with them their seniority as it existed under the Government on October 1 1973 without prejudiced to the seniority of the persons referred to in sub para 1 above who may be trans ferred to the Board by subsequent order of the Government the seniority with reference to the position between Novem ber 1 1956 and November 1 1973 was liable to be altered by Government at any time with reference to pending appeals on common gradation list or with reference to the recommenda tions of High Powered Committee HPC State Advisory Com mittee SAC Central Advisory Committee CAC etc includ ed the cases of employees who had made their representations such as the present appellants who had initiated the pro ceedings by Writ Petition No 2 146 of 1966 and which pro ceedings were not finally disposed of even by October 1 1973
The High Court held that the word etc was confined only to those employees who were affected by the States Re organisation Act or by orders on appeal against the Common Gradation Lists or representations made against the recom mendations of the HPC or SAC or CAC which were all matters referfable to the integration of the services of the Andhra and Telengana regions consequent upon the re organisation of the States
That clause also referred according to the High Court to the revision of inter se 921 seniority list as on October 1 1973 of other non gazetted technical staff ministerial and few others who may be subsequently transferred
But it did not refer to any of those who had already been transferred
According to the High Court if that was the intention the Government would have specifically stated so
The last ground given by the High Court was that the Government had no power to alter the seniority of the employees after October 1 1973 since they had ceased to be the Government employees
According to the High Court the power given to the Government under Rule 36 A of the Rules to review the seniority could not be exercised to rectify the mistake
According to the High Court the question was not whether the earlier seniority list was valid but whether it could be revised and if so by which authority
The Government s power of revising the seniority list was only in respect of those who were Govern ment servants on the date of the revision
The High Court also held that merely because the Board had no jurisdiction to disturb the seniority so fixed it did not follow that the Government continued to have jurisdiction in respect of those employees who were no more its employees
To appreciate the reasoning of the High Court it is first necessary to reproduce the relevant portions of GOs
1651 and 1166 of December 29 1972 and November 7 1973 respectively GO Ms No 1651           3
After carefully examining the matter in the light of the above the Government consider that in view of the transfer of the bulk of the electricity projects to the Board and in view of the fact that the Board is in charge of Electricity Supply and distribution it will be appropriate that the Board should have direct control over the staff and all the activities of the Board should be managed by the Board staff
The Government therefore direct that an opportunity be given to the Government employees working in electricity supply and maintenance etc
 to opt for service under the Andhra Pradesh State Electricity Board subject to the fol lowing Board subject to the following terms and conditions
The employees on transfer to the Boards i shall cease to be Government servants and shall hence forth be the employees of the Andhra Pradesh State Electric ity Board
922 ii
shall be governed by the rules and regulations framed by the Board in all matters including matters pertaining to promotions and disciplinary action subject however to iii below and the Andhra Pradesh Civil Service CCA Rules shall cease to apply to them   GO Ms No 1166           4
With reference to the above orders the Board and the Chief Engineer have obtained the options from the officers referred to in the Annexure to this order and forwarded them to the Government
The options exercised by the individuals were carefully considered by the Government
All the officers mentioned in the Annexure to this order have opted to the Board service in the form prescribed in Annexure I to the GO first read above
In view of the options exercised by the officers the Government have decided to and accordingly transfer the services of the officers mentioned in the Annexure to this GO to the AP State Electricity Board with effect from 1101973 forenoon on the terms and conditions specified in paragraph 3 above and also those mentioned hereunder 1 Orders in respect of the non gazetted technical staff ministerial and of few others whose option forms have not been received by the Government on account of delay in transit or for other reasons will issue separately 2          3 The transfer is on as is basis and the names in the Annexure are not arranged in the order of seniority and do not therefore confer any right for seniority on that basis 4 On transfer to the Andhra Pradesh State Electricity Board the individuals will carry with them the seniority as it existed under Government as on 1101973 without preju dice of the seniority of the persons referred to in sub para 1 above who may be transferred to the Board by a subse 923 quent order of the Government and the seniority with refer ence to the position between 1111956 to sic 1101973 is liable to be altered by Government at anytime with refer ence to pending appeals on Common Gradation Lists or with reference to the recommendations of High Powered Committee State Advisory Committee Central Advisory Committee etc   12
We should have thought that a mere reading of these two Government Orders and particularly GO No 1166 was enough to uphold the contention of the appellants herein that their seniority as on October 1 1973 was liable to be revised by the Government at any time
This was so because firstly clause 3 of paragraph 6 makes it clear that the names in the Annexure sent along with the order were not arranged in the order of seniority and did not therefore confer any right for seniority on the basis This shows that the Government had not finalised the seniority list and the list which was sent to the Board with the said order was a provisional one
The Government had to say so because admit tedly on that day the seniority of the employees was in flux on account of various reasons
In the first place as stated in paragraph 1 of the order the seniority of non gazetted technical staff ministerial and few others whose options were not received on account of various reasons could not have been arranged
As regards the gazetted technical staff such as the appellants as well as the nontechnical staff there were appeals pending against the Common Gradation Lists prepared as per the recommendations of the HPC SAC CAC etc
with reference to the seniority position between November 1 1956 and October 1 1973
This was a sequel to the re organisation of the States and the amalgamation of the different regions in the State
Secondly the Government could not have ignored the position that as on October 1 1973 the dispute with regard to the seniority of the appel lants and the respondents herein was pending in the High Court right from November 1966 when as stated earlier 10 Junior Engineers including some of the present appellants had filed Writ Petition No 2 146 of 1966 giving rise to further proceedings as narrated hereinabove
In these cir cumstances it will indeed be difficult to hold that whereas the Government reserved power and could reserve power to revise the seniority list on account of the disputes about seniority arising out of the States  re organisation andor on account of the non receipt of options of the non gazetted technical staff etc
it did not or could not reserve such power to meet the situation arising out of the orders of the courts in the disputes pending between the appellants and the respondents herein
According to us even if no such powers 924 were specifically reserved in the said Government order the Government would have been obliged to revise the seniority list to comply with such orders
We are further afraid that the High Court in this connection placed too much emphasis on the expression the transfer is on as is basis and did not read into it what in the context of the whole order should have been quite obvi ous
Clause 3 of the order itself states that the names mentioned in the Annexure were not arranged in the order of seniority and did not therefore confer any right for seniority on that basis
Clause 4 of the order specifically stated that the seniority was liable to be altered by the Government at any time with reference to the pending appeals etc Even assuming that the Government by the word etc
 did not intend to refer to the matters pending in court and only intended to refer to the appeals arising out of the recommendations of the concerned committees it should be clear to any one that whether the Government reserved such power or not with reference to the cases pending in courts the Government would have been under an obligation to revise the seniority list to comply with such orders
In the cir cumstances the expression the transfer is on as is basis should have been confined to all service conditions except the seniority
We are also unable to understand why the Government could revise the seniority list of some employees who were no longer its employees after October 1 1973 merely because it had reserved its powers to do so while it had no power to do so in respect of the other employees merely because it had not reserved such power
If the ground given by the High Court for such lack of power in respect of the latter class of employees is correct viz that they had ceased to be the Government servants then for the same reason the Gov ernment could not have reserved and even if it had reserved could not have had the power to change the seniority of the other employees since both had ceased to be the Government employees on and from October 1 1973
If the lack of power was on account of the severence of the relationship between the Government and the employees then whether the Govern ment reserved the power or not the Government could not have had such power
On the other hand if Government could exercise such power merely because it had reserved it it could exercise it for any reason whatsoever and for any length of time even when the employees were not the Govern ment servants
We are afraid that the Court failed to appre ciate that firstly even if the Government so willed it could not have reserved power to change the seniority of the employees after October 1 1973
Conversely the Government had 925 always the power to revise the seniority list of the employ ees as on October 1 1973 on account of reasons accruing prior to the said date
To do it it was not necessary for the Government to reserve any power for it had inherent power to do so
What is unfortunately lost sight of by the Court is that the Government had no reserved the power as it could not to change the seniority of the employees after October 1 1973
The Government had reserved the power as it had every right to do so to change the seniority of the employees as on October 1 1973 or prior to that date when they were employees of the Government
It is this initial wrong assumption which we are afraid had led the Court to the wrong conclusion
We have pointed out above that the Government had not sent the list of the employees to the Board arranged accordingly to seniority and the expression as is in the circumstances referred to service conditions other than seniority
We have further pointed out that even if the word etc at the end of clause 4 of paragraph 6 of the said Government Order was construed to exclude the dispute with regard to seniority pending in the court that would not have exempted the Government from complying with the orders of the court
To hold that the Government by its own order such as the present one could prevent operation of the order of any court is to invite conflict in the jurisdiction of the executive and the judiciary which we are sure the High Court did not intend
But the reasoning of the Court unwit tingly and directly leads to such unconstitutional proposi tion
For the same reasons the Government could not have forced the employees to accept the term with regard to the seniority as an immutable one
This is a part from the fact as pointed out above that in fact the said Government Order did not lay down any such term
This being the case it cannot be said that the appellants had accepted the seniori ty as was forwarded by the Government to the Board and they were estopped thereafter from agitating against it
It is unnecessary to state that the decision of the court being the law no plea of estoppel could be raised against it
With respect we are also unable to accept the reasoning of the High Court that since the Board had no power to change the seniority list it could not be said that the Government had the said power
As a first proposi tion it is well settled that there cannot be a right with out a remedy
Law abhors such vacuum
But as pointed out earlier there are two periods with respect to which the power to alter seniority has to be examined
The first period is upto October 1 1973 926 and the second commences thereafter
In the first period there was a relationship of employer employee between the Government and the transferred employees
Hence the Govern ment had ever right to correct or amend the seniority of the employees upto that date
therefore
the Government had advertently or inadvertently committed any error in preparing the seniority list upto October 1 1973 or be cause of the decisions of the courts it had to amend the said seniority list
not only it had power to do so but it was the only authority which could do it
The seniority list which was corrected by the Government was the seniority list as on or before October 1 1973
In the circumstances we are of the view that the decision of the High Court suffers from legal infirmities and has to be set aside
The result is that both the appeals are allowed
The revised seniority list sent by the Govern ment to the Board with Government Order No 233 of May 26 198 1 is restored and the respondent Electricity Board is directed to act on the same
In the circumstances of the case there will be no order for costs in either of the appeals
NPV Appeals allowed


Summary:
Gaya Sugar Mills Ltd went into liquidation and the sugar factory owned by it was leased out to the appellant by the liquidator with the permission of the Court on December 6 1954 to be worked in terms of the lease which provided inter alia that the lessee would neither be liable for any of the liabilities of the company or of the liquidator or the outgoing lessees nor bound to engage any of their employees or those working from before except those specifically mentioned in the lease
On December 2 1954 ie four days before the appellant came into possession of the sugar factory the Bihar Government issued a notification referring a dispute between the managements of certain specified sugar factories including Gaya Sugar Mills Ltd and their workmen represented by their Unions for adjudication to the Industrial Tribunal constituted by the respondent No i No notice was given to the appellant and proceedings against it were all exparte
Complaints however were made before the Industrial Tribunal by two batches of workmen against the appellant under section 33A of the Industrial Disputes Act alleging in one case that they had been discharged and in the other that the conditions of their service had been changed by the appellant without first obtaining the permission of the Tribunal under section 33 Of the Act
It was asserted on behalf of the appellant that there was no breach of the terms of the lease and no contravention of section 33 Of the Act
After unsuccessfully moving the High Court under articles 226 and 227 Of the Constitution for a writ of certiorari quashing the said proceedings the appellant came up to this Court by special leave and it was contended on its behalf that 1 no leave of the Court having been obtained under section 171 Of the Indian Companies Act by the State Government before it made the reference under section 101 of the Industrial Disputes Act the reference was bad in law and that 2 the word employer  in sections 33 and 33A of the Industrial Disputes Act meant only such employer as was actually concerned with the industrial dispute which was the subject matter of the reference and the appellant having come into possession of the Mills after the reference could not be an employer within the meaning of those sections
255 Held that the terms of the notification properly construed clearly showed that what was sought to be made a party to the reference was not the company itself but its management at the date of the reference and therefore no question of leave of the court under section 171 Of the Indian Companies Act could arise
The word employer  occurring in sections 33 and 33A of the Industrial Disputes Act meant the identical employer concerned with the industrial dispute which was the subject matter of the adjudication and could not include an employer who merely happened to discharge or punish or alter the conditions of service of workmen unless such employer could be shown to be a mere nominee or bentamiday of the former or fell within the category of his heirs successors or assigns within the meaning Of section 183c of the Act
Since in the instant case the appellant satisfied none of these tests it was not bound to seek the permission of the Tribunal under section 33 Of the Act and the proceedings under section 33A of the Act against it must be quashed