Sri Shyamal Kumar Malik vs Life Insurance Corporation Of ...
2023 Latest Caselaw 840 Cal

31.01.2023              IN THE HIGH COURT AT CALCUTTA
   DL-9                CONSTITUTIONAL WRIT JURISDICTION
   (PP)                      APPELLATE SIDE
   Ct.21
                             WPA 1256 of 2023

                        Sri Shyamal Kumar Malik
                                 Vs.
                Life Insurance Corporation of India & Ors.

                   Mr. Arun Kumar Chowdhury
                                            ....for the petitioner.
                   Mr. Avishek Guha,
                   Ms. Debarati Das
                                     ....for the respondent/LICI.

Affidavit of service filed in Court today is

retained with the records.

Pursuant to an order dated September 26, 2022,

passed by this Bench, a reasoned order was passed

by the employer/Life Insurance Corporation of India

(LICI). The petitioner at present is working as an

Administrative Officer at the LICI Jhargram Branch

Office, Kharagpur Divisional Office since his

promotional transfer with effect from July 15, 2020.

Mr. Chowdhury, learned counsel appearing on

behalf of the petitioner submits that there has been a

violation of transfer and mobility policy for Class - I

officers in the present case. Clause 5(a) and 12(b) and

(d) of the said circular has been violated by posting

the petitioner out of his town. The petitioner is not

only a caregiver of his disabled child but also is a

candidate/officer belonging to SC/ST community. He

further refers to an office memorandum dated June 6,

2014 issued by the Ministry of Personnel, Public

Grievances and Pensions, Department of Personnel

and Training, Government of India in support of his

contention that a caregiver of a disabled child may be

exempted from routine exercise of transfer/rotational

transfer subject to administrative constraints.

Mr. Guha, learned counsel appearing on behalf

of LICI submits that office memorandum dated June

6, 2014 is only applicable to routine

transfer/rotational transfer. The same is not

applicable in the case of a promotional transfer. He

draws the attention of the Court to the reason

recorded in the impugned order dated October 28,

2022. He submits that the petitioner has accepted

the promotional transfer to the cadre of an

Administrative Officer from the post of an Assistant

Administrative Officer after a continuous stay of

approximately 10 years in Kolkata in the previous

cadre of Assistant Administrative Officer.

Having considered the rival submissions of

parties and the materials placed on record, this Court

finds:

(a) The petitioner has accepted a promotional transfer from the cadre of Assistant Administrative Officer to the cadre of Administrative Officer. The petitioner

accepted his promotional transfer without any representation against the said posting order. The petitioner continuously resided in Kolkata for a period of 10 years before accepting the promotional transfer and joined the place of posting on July 15, 2020.

(b) The petitioner could have refused the promotional transfer due to his family commitments but without any protest or demur, the petitioner joined his place of posting after accepting the promotional transfer.

(c) After joining the place of posting in July 2020, the petitioner made a request for transfer on January 7, 2021 and followed the said request by another representation dated May 27, 2021. The said requests were made within one year of the promotional posting.

(d) The said representations could not be considered since the petitioner had not completed even one year of service that was mandatory under the office circular dated October 22, 2016.

(e) During his 12 years' tenure as an officer of LICI, the petitioner had all along been residing in Kolkata till he accepted his promotional posting in July 15, 2020.

(f) Office Memorandum dated June 6, 2014 is only applicable to government employees regarding routine transfer or rotational transfer and not promotional transfer.

In the light of the discussions above, this Court

holds that no violation of any rule or policy has been

made by the employer/LICI. The petitioner should

not be allowed to approbate and reprobate. Such view

of this Court finds support in a recent Supreme Court

judgment reported in (2022) 2 SCC 25 (Union of

India & others vs. M. Murugesan & others). The

petitioner cannot accept promotional transfer without

any protest and/or demur and immediately upon

accepting the said promotional transfer, the petitioner

cannot make request for being transferred back to

Kolkata within a few months of accepting his

promotional transfer.

In the light of the discussions above, WPA 1256

of 2023 is dismissed without any order as to costs.

Since no affidavits have been directed to be

exchanged in the said writ petition, all the allegations

contained therein are deemed not to have been

admitted by the parties.

All parties shall act on the server copies of this

order duly downloaded from the official website of

this Hon'ble Court.

Urgent photostat certified copies of this order, if

applied for, be supplied to the parties upon

compliance of all necessary formalities.

(Lapita Banerji, J.)