Employer's Right To Utilize Employee's Services On Promotion Can't Be Curtailed By General Guidelines On Routine Transfers: Delhi High Court

The Delhi High Court has ruled that the right of an employer to utilize the services of an employee upon promotion cannot be curtailed by general guidelines issued for regulating annual or routine transfers.Justice Rekha Palli also accepted the argument that even if the transfer of an employee, who is in a transferable job, is in violation of executive guidelines, court must not normally interfere with such transfer unless a ground of mala fide is made out.The court made the observations while dismissing a plea filed by one Sumit Dagar who had joined the Airport Authority of India (AAI) on July 18, 2011 as a Junior Executive (Air Traffic Control). He was holding a post of Assistant Manager before his promotion in July this year.Dagar had challenged the transfer and promotion order issued on July 29, 2022 to the extent of his transfer from the Indira Gandhi International Airport, New Delhi to Mangalore Station. Stating that after joining the services in 2011 he continued to remain posted in Delhi, Dagar in the petition argued that all the transfers in the organisation are required to be carried out in terms of the transfer policy of 2018.Dagar's counsel submitted before the court that his transfer to Mangalore was in violation of the policy which mandates that transfers shall normally be avoided and that inter-regional transfers would be ordered only as per the seniority based on the length of stay of the officer in a station or region.It was also argued that the authorities failed to seek any option from Dagar as mandated in the transfer policy and thus the impugned order be set aside. The court was further told that while 406 officers were promoted from the post of Assistant Manager to Manager post, most of them have been retrained in their existing regions.On the other hand, it was argued on behalf of the respondent authorities that since Dagar was transferred only after his promotion as the Manager, he cannot rely on the transfer policy which is applicable only to annual transfers and not to a transfer which is necessitated as a consequence of the promotion of any employee. "Once the said transfer is not covered by the transfer policy dated 27.02.2018, the petitioner, who has voluntarily accepted the promotion, cannot complain at this stage when he had already joined his place of posting," the respondent counsel argued.While dismissing the plea, the court said that merely because AAI as an employer has framed some guidelines to regulate the annual transfers of its employees, it cannot imply that the same parameters must be applied even to transfers on promotion."The right of an employer to utilise the services of an employee upon promotion in the manner which is deemed fit, cannot be curtailed by the general guidelines issued for regulating annual/routine transfers. I, thus, have no hesitation in holding that the policy guidelines dated 27.02.2018 are not applicable to the transfers on promotion which fall in a different class altogether," the court said. The court said Dagar was transferred to Mangalore only on being promoted from the post of Assistant Manager to the Manager and, therefore, it is not a case of regular or annual transfer which was governed by the policy guidelines of AAI. "Once, I am of the view that the policy dated 27.02.2018, relied upon by the petitioner, is not applicable to a transfer upon promotion, which is the position in the present case, both the grounds of challenge of the petitioner which hinge only on the said policy, are untenable and are liable to be rejected," Justice Palli said. The court further observed that Dagar had neither raised any ground of malafide nor urged that the impugned order was not issued by a competent authority or that it was in violation of any statutory rule. "The petitioner, who is a trained Air Traffic Controller and is in a transferable job, has already remained posted in Delhi for more than 11 years. This Court finds no reason to interfere with the respondent's decision to utilise his services as a Manager (ATC) at Mangalore," said the court. Title: SUMIT DAGAR v. UNION OF INDIA AND ORSCitation: 2022 LiveLaw (Del) 1039Click Here To Read Order

Employer's Right To Utilize Employee's Services On Promotion Can't Be Curtailed By General Guidelines On Routine Transfers: Delhi High Court

Nupur Thapliyal

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