Punjab-Haryana High Court
Lalita Arya vs Life Insurance Corporation Of … on 8 April, 2021 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
211
CWP No.11621 of 2020 (O&M)
DATE OF DECISION : 8th APRIL, 2021
Lalita Arya
…. Petitioner
Versus
Life Insurance Corporation of India & another
…. Respondents
CORAM : HON’BLE MR. JUSTICE RAJBIR SEHRAWAT
****
Present : Mr. Aalok Jagga, Advocate for the petitioner.
Mr. Saurav Verma, Advocate for the respondents-LIC.
****
RAJBIR SEHRAWAT, J. (Oral)
1. This is the petition filed by the petitioner under Articles
226/227 of the Constitution of India seeking quashing of the transfer
order dated 19.06.2020 (Annexure P-3) whereby the petitioner has been
transferred to Divisional Office, Ludhiana from Divisional Office,
Chandigarh on promotion as Divisional Manager; and also quashing of
the decision of the authorities dated 14.07.2020 (Annexure P-9) whereby
the representation and notice dated 02.07.2020 (Annexure P-8) moved by
the petitioner, was rejected by the respondents.
2. The brief fact giving rise to the present petition are that the
petitioner was an employee with the respondent-Life Insurance
Corporation of India. On 01.09.1996, the petitioner was promoted as
Assistant Administrative Officer. Thereafter the petitioner was further
promoted as Administrative Officer in the year 2003. As per the further
line of promotion, the petitioner was later on promoted as Assistant
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Divisional Manager and was transferred to Divisional Office, Bareilly,
Uttar Pradesh, where she remained posted up to June 2013. In July, 2013
the petitioner was transferred to Divisional Office, Chandigarh, where
she had been working continuously. As per the work, conduct and
seniority of the petitioner the petitioner was further promoted to the post
of Divisional Manager vide office order dated 19.06.2020. Consequent
of this promotion, the petitioner was ordered to be posted to Divisional
Office, Ludhiana vide another order dated 19.06.2020, whereby several
hundred employees were ordered to be transferred by the respondents.
Vide this posting order; many officers/employees were transferred by the
respondent-Corporation. The name of the petitioner figured at serial
No.227, posting her as Manager (MASH), Divisional Office, Ludhiana.
The petitioner attained the age of 58 years on 04.10.2019. Therefore,
relying upon the Transfer and Mobility policy of the respondent-
Corporation, which provides for non-transfer of an employee after
attaining the age of 58 years, the petitioner made a representation dated
20.06.2020. However, the said representation has also been rejected by
the respondent-Corporation. Since the petitioner was required to join her
new place of posting, failing which the promotion would have been
withdrawn by the respondents, therefore, the petitioner joined the new
place of posting on 06.07.2020. It is thereafter that the present petition
has been filed by the petitioner in August, 2020.
3. While arguing, the learned counsel for the petitioner has
relied upon Clause 6 of Transfer and Mobility (of Class-I Officers)
Instructions, 2016; to contend that since the petitioner has attained the
age of 58 years, therefore, the petitioner could not have been transferred
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from her present place of posting. It is further submitted by the counsel
that there are some other officers who have been retained at the same
station even after their promotion to the next post. The petitioner has
even cited two examples of the officers who have been promoted like the
petitioner and have been retained at their present place of postings.
Hence, it is submitted by the counsel that the petitioner has been
discriminated against and that she should have been retained at
Divisional Office, Chandigarh even after her promotion as Divisional
Manager. Carrying forward the argument, the counsel for the petitioner
has submitted that although the transfer policy of the corporation
provides for transfer of its officers, however, Clause 6 of the said policy
creates a special provision. The language of this provision also is
mandatory in nature because it uses the words ‘shall’ not be transferred
on promotion. The counsel has relied upon the judgment of Supreme
Court in Moti Lal Ghelabhai Versus Jagan Nagar, 1985 AIR SC 709; J.
K. Cotton Spinning and Weaving Mills Co. Ltd. Versus State of U.P.
and others, 1981 AIR SC 1170 and Dilawar Singh Versus Parvinder
Singh @ Iqbal Singh & another, 2005(12) SCC 709 and also on some
other judgments to contend that when a law contains a general provision
and special provision governing the same aspect, then the special
provision shall have to be taken as excluding and overriding the general
provision. In view of this, since Clause 6 contains a special provision,
this shall supersede the earlier general provisions of the Transfer and
Mobility Policy. Therefore, the respondents did not have any power or
authority to transfer the petitioner from Chandigarh to Ludhiana.
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4. On the other hand, the counsel for the respondents has
submitted that the service of the employees and officers of the
Corporation are governed by the Life Insurance Corporation of India
(Staff), Regulations, 1960 which provide that an employee/officer is
liable to serve at place where he/she is posted from time to time. The
said regulations also providing that the competent authority may transfer
an employee from one department to another in the same office or from
one office of the Corporation to another office. Therefore, the petitioner
cannot claim any right to remain posted at any place of her choice. The
respondent-Corporation has full authority to transfer the petitioner, or for
that matter; any other employee to any place according to its work,
business and administrative requirements. It is further submitted that the
Transfer and Mobility Policy contains only guiding principles for the
internal working of the Corporation. It does not confer any right upon
any employee/officer. Therefore, under the said policy, the petitioner
cannot claim anything as a matter of right. Otherwise also even Clause
3(a) of the same policy provides that the officer working on the post of
Assistant Divisional Manager and above, can remain posted at one place
for maximum of six years. This duration of six years is to be counted by
including the service at that place in all cadres. Still further the clause
provides that an employee/officer may be continued at the same place
even beyond six years, if there is no request for incoming transfer to that
place. In case of the petitioner, she has remained posted at Chandigarh,
admittedly, for seven years and there have been incoming requests from
the other officers to get posted in Chandigarh, therefore, she has rightly
been transferred from Chandigarh to Ludhiana office. The counsel has
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further submitted that even Clause 6, upon which the petitioner has
relied, does not contain an absolute provision for retention of an
employee/officer at the same place after such an employee/officer attains
the age of 58 years. The clause itself makes the said aspect subject to the
availability of vacancy. Since there were incoming requests for being
posted at Chandigarh from the other officers, made under the same
policy, therefore, after acceding to their requests, no vacancy was left at
Chandigarh office. Therefore, the petitioner was rightly transferred to
Ludhiana office.
5. Qua the aspect of discrimination, the counsel for the
respondents has submitted that the petitioner is not the only person who
has been transferred from her present place of posting to some other
office on promotion, despite having attained the age of 58 years. This
aspect has been dependant upon the vacancy situation and the incoming
requests at the particular places. Accordingly, at least 13 officers have
been transferred like the petitioner despite having attained the age of 58
years. Only stray cases could be adjusted by the respondent-Corporation
at the same places even after promotion. Those places also happen to be
where the vacancies were existing. Hence it is submitted by the counsel
for the respondents that the present petition be dismissed.
6. Before proceeding further, it would be apposite to have
reference to the relevant provisions of Regulations of 1960 as well as to
some relevant provisions of the Transfer and Mobility instructions of the
respondent-Corporation:
Life Insurance Company of India (Staff), Regulations,
1960:
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20. Unless in any case it be otherwise distinctly provided,
the whole time of an employee shall be at the disposal of the
Corporation and he shall serve the Corporation in its
business in such capacity and at such place as he may from,
time to time be directed.
80. The competent authority may transfer an employee
from one department to another in the same office or from
one office of the corporation to another office.”
LIC of India Transfer and Mobility (of Class-I Officers),
Instructions, 2016
3. Normal period of Posting/Maximum tenure:
(a) Maximum stay duration at a station of 10 years
shall apply only to Metro cities, In other cases it
shall be 8 years in a station for AAO/AO and 6
years in a station for ADM and above Officers.
The maximum tenure at a station shall be taken
inclusive of tenure in all cadres.
In case there are no incoming transfer requests for
a particular station, maximum tenure conditions
shall not be applicable in these cases. However,
in the office exigencies the Competent Authority
will have the right to transfer any officer
irrespective of tenure.
(b) The term “position” shall refer to the Assignment
an officer is dealing with.
(c) In case of officers on deputation, period spent on
deputation in the same station shall also be
counted for computing NPP. With regard to
reversion cases, period spent at the station of
posting on promotion immediately preceding
reversion shall also be treated as the period spent
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in the earlier station, viz. place of work prior to
acceptance of promotion.
(d) Posting of an officer on refusal of
promotion/reversion shall be done in accordance
with the NPP criteria.
(e) The maximum tenure of 3 years in a position is
applicable for the sensitive positions (list
enclosed). However, officers working in other
than sensitive positions, maximum tenure in a
position shall normally be 5 years. Chairman
reserve the right to declare any department as
sensitive department as and when required.
(f) Newly promoted AAOs shall be initially posted to
the offices where there is shortage of manpower
based on sanctioned strength. However, Officers
selected as ITSG / Actuarial Core Group /
Investment Specialist Group shall be exempted
from posting in DO / BO / SO as the case may be.
(g) Direct Recruit AAOs shall be initially posted in
Branches only for a minimum period of 3 years.
(h) Officers recruited as AAO (CAs) shall be posted
initially for a minimum three years in Divisions
only.
6. Posting on Promotions:
The concerned Office shall evaluate the Offices where
there is shortage of manpower based on the
sanctioned cadre strength. Accordingly, these posts
shall be filled in by way of promotions on priority.
Officers aged 58 years (nearer birth day) and above
as on 01st April of the relevant year shall not be
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transferred on promotion subject to availability of
vacancies in the elevated cadre.
7. In case of employee-employer relationship, it is for the
employer to decide the place of posting of the employee, keeping in view
the work requirement and in the interest of better administration of the
organization. Therefore, an employee/officer does not have any absolute
right to stay or get posted at any particular place of his/her choice. The
posting of an employee is only an ‘incidence of service’ and not the
‘condition of service’. The aspect of posting; being an incidence of
service, no employee can force an employer to post him at any particular
place, by any means. To the same effect; there is a provision contained
in the regulations of the respondent-Corporation as well, as is contained
in Regulation Nos.20 and 80 mentioned hereinabove.
8. It is well established by now that the transfer policy is only
for the internal guidance of the department to streamline the posting of its
employees for better and efficient functioning of the organization /
department. The transfer policy is not a statutory document, upon which
any employee/officer can base any right. Such transfer policy is always
non-enforceable. Hence, the petitioner cannot base her claim on the
provisions of the transfer policy to seek a writ of mandamus against the
respondents; for a direction to them to post the petitioner at a particular
place of her choice. Moreover, since regulations governing the staff of
the Corporation already covered the field, therefore, in case of any
instructions issued by the respondent-Corporation, such instruction shall
always be subservient to the regulations issued on the said aspect.
Needless to say, as mentioned above, the regulations left the matter of
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posting of its employees to the exclusive discretion of the competent
authority, not giving any kind of right to the employee on the issue of
transfer.
9. Even if the said policy is taken to contain same kind of
provision, which the court may look at, to assess the case of the
respective parties, though not conferring any right upon the petitioner,
still this Court finds that the provisions of Clause 6, relied upon by the
counsel for the petitioner, does not confer any right upon the petitioner
for not being transferred; only on the ground that she has attained the age
of 58 years. Although, the counsel for the petitioner has relied upon the
judgment of Supreme Court rendered in Moti Lal Ghelabhai (Supra), J.
K. Cotton Spinning and Weaving Mills Co. Ltd. (Supra) and Dilawar
Singh (Supra),to contend that this special provision of policy shall
exclude other general provision contained in the same Policy, however,
this court finds that those judgments are not even relevant to the case of
the petitioner. All these judgments relates to the interpretation of the
provision of the Act or the statutory Rules, and not the provisions of
transfer policy. Otherwise also a cumulative reading of the provisions of
the Transfer and Mobility Policy of the Corporation shows that it has
provided a maximum period of posting for an officer at one place. For
the post of ADM and above, the maximum period of posting that has
been specified under the said policy is six years, which can be extended
further only if there are no requests for incoming transfers at that place or
there are no exigencies of the office which does not permit the retention
of an officer at a particular place. Even Clause 6 of the said policy does
not create unconditional provision for not transferring of an officer, who
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has attained the age of 58 years. Even this provision makes this aspect
subject to availability of vacancies in the elevated cadre. Hence, if there
are no available vacancies in the promotional cadre at one particular
place, then even if an officer has attained the age of 58 years, he/she shall
have to be transferred. The availability of the vacancies in the
promotional cadre has to be determined by harmoniously reading Clauses
3 and 6 together. The Clause 3 provides maximum period of posting of
an officer at a place; which cannot be extended in case there are incoming
requests for transfer to that place. Therefore, for assessing the
availability of vacancies in promotional cadre at a particular place, the
incoming requests for transfer to that place shall have to be accounted for
in the first instance; in case the officer sought to be transferred has
already completed 6 years at that place. It is only after adjusting the
incoming requests, that the officer sought to be transferred can be
retained at that place, if still there are some vacancies left at that place.
In the present case, it is not even in dispute that the petitioner had already
remained posted at Chandigarh for more than six years. The respondents
have amply clarified that there had been incoming requests from other
officers for being posted at Chandigarh. After accounting for their
requests, there was no vacancy left at Chandigarh office. Hence, the
petitioner has rightly been ordered to be transferred to the divisional
office of the Corporation at Ludhiana. Therefore, this Court does not
find any illegality or irregularity in order passed by the respondents, even
if the Transfer and Mobility Instructions of the Corporation has to be
assigned some legal value, although it would never be so warranted as
per the law.
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10. Another aspect which is clear from the facts on file is that
the petitioner has not even alleged any mala fide against any authority.
There is no allegation by the petitioner of extraneous considerations
being taken into account by the authorities. In absence of any allegation
of mala fide or interplay of any extraneous consideration, this court
would not interfere in barely an administrative matter of posting of the
officers by respondent-Corporation. Otherwise also, undisputedly, the
petitioner had already joined the duty pursuant to the transfer order, way
back on 06.07.2020. Hence, the transfer order stands already complied
with about 8 months back. This court finds no justification for
overturning the prevalent arrangement by setting aside the transfer of the
petitioner.
11. In view of the above, finding no merit in the present petition,
the same is dismissed.
12. All the pending applications are disposed of accordingly.
8th APRIL,2021 (RAJBIR SEHRAWAT)
‘raj’ JUDGE
Whether speaking/reasoned: Yes No
Whether Reportable: Yes No
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