Union Of India & Ors. vs . Badal Das
2022 Latest Caselaw 195 Meg

Serial No. 02            HIGH COURT OF MEGHALAYA
Supplementary List              AT SHILLONG

        WP (C) No. 155 of 2022
                                                       Date of order: 04.05.2022
        Union of India & Ors.           vs.                       Badal Das
        Coram:
               Hon'ble Mr. Justice Sanjib Banerjee, Chief Justice
               Hon'ble Mr. Justice W. Diengdoh, Judge
        Appearance:
        For the Petitioners            : Dr. N. Mozika, ASG with
                                         Ms. K. Gurung, Adv.
        For the Respondent             : Mr. N. Syngkon, Adv. with

Ms. L. Phanjom, Adv.

        i)     Whether approved for                        Yes/No
               reporting in Law journals etc.:

        ii)    Whether approved for publication            Yes/No
               in press:

JUDGMENT: (per the Hon'ble, the Chief Justice) (Oral)

This is a case of an employee resisting transfer without any justifiable cause and seeking to rely on subsisting orders in proceedings which have become infructuous to thwart any possible transfer.

2. The respondent is employed in the Geological Survey of India. In 2019, the respondent was promoted and transferred by an order dated May 27, 2019. The respondent was promoted to the post of Assistant Director (P&A) and was transferred to the Northern Region office at Lucknow.

3. There is no dispute that the respondent is liable to be transferred according to the administrative convenience of the employer. There is also no dispute that upon an order in the nature of promotion and transfer

being passed and the concerned employee not accepting the transfer, the promotion would also not take effect. Since the respondent herein resisted the transfer to Lucknow pursuant to the relevant memorandum of May 27, 2019, he continued in his original post.

4. The respondent challenged the order of transfer by way of OA No. 194 of 2019 before the Central Administrative Tribunal, Guwahati Bench. By an interim order of June 19, 2019, the CAT noticed that the respondent herein "in view of his personal difficulty and family problems" had made a representation against his transfer, but the same was rejected. The operative part of the order dated June 19, 2019 provided as follows:-

"It is further ordered that till the next date, the applicant will not be disturbed from the present place of posting either in normal course of posting/transfer on promotion".

5. It is the admitted position that the matter has not been taken up subsequently by the Tribunal and the order of June 19, 2019 continues. The respondent submits that a further petition, OA No. 271 of 2019, has also been filed by him challenging the cancellation of his promotion order since he refused to join the transferred place of posting upon promotion. However, it does not appear that there is any interim order pending on such second petition filed by the respondent before the Tribunal.

6. By a recent notification of August 23, 2021, the respondent has again been promoted to the post of Assistant Director (P&A) but his place of posting has, per force, been retained at Shillong in view of the order of June 19, 2019 passed by the Tribunal. The respondent has accepted such promotion and the respondent has joined the promoted post on August 24, 2021. There is a categorical averment to such effect in paragraph 12

of the petition. On a pointed query by the Court, Counsel for the respondent accepts that he has joined the promoted post. As a consequence of the respondent accepting his promotion and joining the promoted post, the previous proceedings instituted before the Tribunal have been rendered meaningless and are infructuous. Since the Guwahati Bench is not always available, the employer has been compelled to approach this Court. The respondent accepts that he has joined the promoted post and that he would withdraw the pending proceedings, but the respondent insists that he must be kept in Shillong.

7. There may be good grounds for the respondent seeking not to be removed from Shillong. However, it is for the respondent to appeal to the employer in such regard and the employer's decision thereupon becomes final and may not be assailed unless high grounds are made out therefor.

8. Accordingly, since upon the respondent accepting the promotion made pursuant to the recent memorandum of August 23, 2021, the previous challenges before the Tribunal have been rendered meaningless, the parties are directed to furnish a copy of this order to the Tribunal for the Tribunal to record the closure of the two petitions, OA No. 194 of 2019 and OA No. 271 of 2019, in its records. The interim order of June 19, 2019 passed in the said proceedings by the Tribunal will be of no further effect.

9. It is made clear that since the respondent's is a transferable job, the petitioning employer will be entitled to transfer the respondent in accordance with its administrative convenience and as per the rules applicable. However, if the respondent makes any representation against

any proposal to transfer the respondent, the petitioning employer will consider the same in accordance with law; but the decision thereon will be binding, subject to any challenge thereto that the respondent may carry.

10. The order of the Tribunal dated June 19, 2019 will no longer be an impediment to the respondent being transferred in accordance with law.

11. Since the facts were not in dispute, no affidavit was called for. The key issue was as to whether the respondent had joined the promoted post pursuant to the memorandum of August 23, 2021. Upon Advocate for the respondent unequivocally confirming that the respondent had joined the post, there was no further need to call for any affidavit.

12. WP(C) No. 155 of 2022 is allowed as above. There will, however, be no order as to costs.

           (W. Diengdoh)                               (Sanjib Banerjee)
               Judge                                     Chief Justice


Meghalaya
04.05.2022
"Sylvana PS"