IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.5780 of 2011 Krishna Kumar, s/o- late Tapeshwar Prasad, r/o- East Lohanipur, Firoz Gandhi Nagar, Kadamkuan, District- Patna. …………. Petitioner Versus 1. The Life Insurance Corporation of India, through the Zonal Manager, East Central Zone, Jeevan Deep Building, Exhibition Road, Vth Floor, Government of Bihar, Patna. 2. The Senior Divisional Manager, Life Insurance Corporation of India, Patna Divisional Office, “Jeevan Prakash”, Mazharul Haque Path, Patna-800001. ………….. Respondents For the petitioner : Mr. Prabhat Kumar Sharan, Advocate For the L.I.C. : M/s Umesh Prasad Singh, Sr. Advocate Rajeev Ranjan Prasad, Advocate. ---------------------------------- 5 03.08.2011 Heard Mr. Verma for the petitioner and Mr. Umesh Prasad Singh, for the respondent Life Insurance Corporation of India. Counter affidavits and rejoinder to the counter affidavits have been filed by the parties which are taken on record. Petitioner seeks appropriate order/direction to quash the order transferring the petitioner from Patna Branch office to Ara Branch office as Higher Grade Assistant (HGA) as contained in letter dated 30.11.2010 (Annexure-1). He also raises a grievance that in the matter of posting/transfer on promotion, he has been discriminated against at the hands of the authorities of the Life Corporation of India (for short “ the L.I.C.) inasmuch as his representation in this regard remained undisposed of. Background facts, in a nutshell, are as follows: While posted as Assistant at Branch-III of L.I.C. 2 under Patna Divisional Office, Exhibition Road, the petitioner participated in the process of promotion of Assistant Grade employees within Eastern Central Zone to the next grade/post of HGA. On completing the process of selection, the respondents came out with list of selected candidates vide Notification dated 16.2.2010 issued by the Senior Divisional Manager of the L.I.C. (Annexure-3). Petitioner was selected for promotion to the next grade/post of HGA (Administration). By another order dated 24.2.2010 (Annexure-4), the selected candidates for promotion to the HGA post/grade was/were given place(s) of postings. Petitioner was posted at Gaya. Petitioner claims to have met with an accident causing fracture of thigh, bone and heap joints. Instead of joining the promoted post, petitioner made representation(s) for allowing him to continue at Patna on the ground that he was ailing and he had to discharge duties of the Welfare Association of the employees of the LIC belonging to SC/ST/Budhist communities. Such change of place of posting was claimed based on Circular of the L.I.C. dated 12.10.1989 providing inter alia that candidates belonging to the SC/ST be considered sympathetically in the matter of posting. It is the stand of the petitioner that he made several representations which yielded no result which prompted him to approach this Court. A counter affidavit has been filed on behalf of 3 respondent Nos. 1 to 3 in which it has been stated that the petitioner did not joint at Ara pursuant to order contained in Annexure-1. Again by letter dated 8.12.2010, petitioner was directed to join at Ara latest by 11.12.2010 failing which the promotion was to be cancelled. In spite of these communications, he did not join the promoted post. In the meanwhile, the Patna Division of the L.I.C. initiated fresh process of promotion for the post of HGA for the year 2010- 11. Acting in his own discretion and treating himself to be the Assistant, the petitioner applied for promotion whereafter his name was included in the list of employees to be interviewed which was scheduled on 17.1.2011. The petitioner was required to appear at the interview on 21.1.2011 but he did not appear thereat. The Patna Division of the L.I.C. thus treated vacancy of HGA at Ara for the current year as the petitioner did not join the promoted post in spite of adequate indulgence granted to him and as such he lost his status as one of the candidates selected for promotion to the Cadre of HGA. The applications filed by the petitioner for promotion for the current year dated 4.12.2010 has been enclosed as Annexure-B and the list of candidates selected for interview for consideration of promotion to the cadre of HGA (Administration) is enclosed as Annexure-B/1. Mr. Verma appearing in support of the application submits that the petitioner has been discriminated in the 4 matter of posting on promotion as some of the employees on promotion were adjusted in Patna whereas the petitioner was posted initially at Gaya and thereafter at Ara. It is also his stand that his representation filed in this regard remained undecided which persuaded him to knock the door of this court. Mr. Singh, on the other hand, submits with reference to the averments made in the counter affidavit that the order of posting on promotion cannot be said to be discriminatory and/or arbitrary. It is contended that the first office order for promotion to the cadre of HGA and posting was issued vide letter dated 24.2.2010 (Annexure-4) whereby the petitioner was posted at Gaya Branch-1. The petitioner did not join. The respondent L.I.C. again come out with contingency list of transfer vide letter dated 30.10.2010 whereby the petitioner was directed to join the promoted post at Rajgir Branch Office. The petitioner again did not comply with the aforesaid order as a result whereof the third office order was issued whereby he was directed to join the promoted post at Ara Branch. The petitioner continued to defy the said order. Dealing with the case of discrimination in the matter of assigning post in Patna, it has been stated that vacancies at Patna local Branches in the promoted post were filled up by way of transferring those employees who had already been posted outside Patna. 5 The respondent also considered those who were female, physically handicapped and over 50 years of age. A welfare formula “ lower the age farther the posting” was adopted. Petitioner was promoted and firstly posted at Gaya Branch – I office according to his first choice as also his age. He did not avail the said opportunity. The respondents thereafter came out with yet another contingency list whereby he was posted at Rajgir Branch office according to his second choice given in the promotion application form. Petitioner did not comply with the aforesaid order. Finally, an order (Annexure-1) was passed posting him at Ara branch office which was the third choice of the petitioner. The petitioner again defied the order. Petitioner acting in his own discretion again participated in the selection process for the post of HGA taken up in the year 2011 and made application (Annexure-B) and was empanelled for interview and ultimately he defaulted in his appearance before the Interview Board. It is the stand of the respondent L.I.C. that an order of promotion takes effect from the date the employee joins the promoted post. Petitioner for all these intervening months did not join the promoted post and instead participated in the subsequent promotional exercise treating himself to be as an Assistant. In the setting of the facts, it can be reasonably argued that petitioner lost opportunity to avail the benefits of promotion granted to him 6 by the order contained in Annexure-3. Learned counsel for the petitioner has submitted that the letter dated 8.12.2010 is said to have been served on 9.12.2010 whereas the petitioner was on leave since 6.12.2010 to attend meeting of the Welfare Association of LIC SC/ST employees at Ahmedabad. However, the fact that he applied for promotion to the post/cadre of HGA for the ensuing/current year has not been denied. It appears from the materials on record that petitioner was promoted and allowed posting as per his choice but he did not avail the same. Respondents came out with another order posting him at Rajgir which was also not complied with. The L.I.C. had to again amend his place of posting whereby he was posted at Ara. Till today, he has not joined the said post. It further appears from the records that treating himself as the Assistant, he participated in the promotional exercise taken up for the respondent L.I.C. for the post of HGA. Posting of the choice is not a Rule. There may be circulars/guidelines regulating such posting but violation thereof would not be a ground to set aside those orders of posting(s). From the materials on record and the submissions of the parties, this Court is not able to find any discrimination meted out to the petitioner in the matter of transfer/posting. In order to demonstrate discrimination, the petitioner is obliged to indicate that two equals in all respects 7 have been treated unequally. It has to be proved by facts and circumstances. Pleadings in this regard are not adequate. Thus, this Court is satisfied that no case for interference with the order dated 30.11.2010 has been made out as prayed for in the application. The application is devoid of merit and it is accordingly dismissed. Dismissal of case, however, would not preclude the petitioner from ventilating his grievance before the competent authority of the respondent L.I.C. in accordance with law. pkj (Kishore K. Mandal, J.)