Regional Dir.E.S.I Corp.. vs Soumitra Sengupta .

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4611 OF 2013

THE REGIONAL DIRECTOR, EMPLOYEES STATE INSURANCE CORPORATION & ANR. Appellant(s)

VERSUS

SOUMITRA SENGUPTA & ORS. Respondent(s)

J U D G M E N T

KURIAN, J.

1. The appellants are aggrieved by the Judgment and

order dated 25.01.2010 passed by the High Court of

Orissa in W.P. (C) No. 17192 of 2009. The issue

pertains to the inter-regional transfer of the first

respondent from Maharashtra to Orissa.

2. It is not in dispute that at the time of

transfer, the first respondent was working as an

Upper Division Clerk (in short, “UDC”) in the

Maharashtra region. No doubt, the first respondent

had applied for a transfer to Orissa region while he

was working as Lower Division Clerk (in short,

“LDC”). However, at the time when the inter-regional

Signature Not Verified transfer to Orissa was to be effected, the first Digitally signed by JAYANT KUMAR ARORA Date: 2017.11.29 16:28:12 IST Reason: respondent had already become UDC and he was working

as such in the Maharashtra region. But it is seen

from the proceedings that the transfer of the first 2

respondent to Orissa was made as an LDC.

3. Though the learned counsel for the appellants has

strenuously argued that the transfer was at the

option of the first respondent and that the first

respondent had subsequently appeared in the LDC

examination in Orissa region and got promoted in the

year 2011 in Orissa as a UDC, we find it difficult to

appreciate the situation of a UDC being transferred

as an LDC. Therefore, the High Court was right in

its observation that as on the date of transfer of

the first respondent as a UDC to Orissa, in case

there was a vacancy of UDC in Orissa region, the

first respondent should be considered against that

vacancy.

4. Be that as it may, as rightly pointed out by the

learned counsel for the appellants, against the

vacancy available in 2006 in the post of UDC in

Orissa, another incumbent had already been promoted

and that person is not on the party array. There was

only one vacancy of UDC. The first respondent, in

any case, had become UDC in the year 2011 in Orissa

region. We also find force in the submission of the

learned counsel for the appellants that had there

been a transfer as UDC, it would have otherwise

blocked the chance of an incumbent in the Orissa

region aspiring for promotion as a UDC. 3

5. Be that as it may, as for the appellants, a

legally impermissible transfer as LDC has been made.

The transfer has to be treated as only a transfer

from Maharashtra to Orissa as UDC. Since another

incumbent had occupied the vacant position, we make

it clear that the first respondent will only be

entitled to notional benefits in the post of UDC with

effect from the date of his original transfer to

Orissa till he got actual promotion through LDC route

in Orissa.

6. Subject to the above modification, the appeal is

dismissed. The consequential orders shall be passed

within a period of three months from today. For the

purpose of passing the order, if required, a

supernumerary post in the cadre of UDC will be

treated as created from the date of transfer of the

first respondent to Orissa till he actually became

UDC through LDC route. For removal of any other

difficulty, it is made clear that the actual monetary

benefits will be accrued to the first respondent only

from the date of his actual promotion to the UDC in

the year 2011. Till such time, the benefit will only

be notional in the sense that the first respondent

will get restoration of seniority and refixation of

pay and such other benefits except the monetary

benefits.

4

Pending Interlocutory Applications, if any, stand

disposed of.

.......................J. [ KURIAN JOSEPH ]

.......................J. [ AMITAVA ROY ]

New Delhi;

November 23, 2017.

5

ITEM NO.1 COURT NO.5 SECTION XI -A

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Civil Appeal No(s). 4611/2013

REGIONAL DIRECTOR, EMPLOYEES STATE INSURANCE CORPORATION & ANR. Appellant(s)

VERSUS

SOUMITRA SENGUPTA & ORS. Respondent(s)

Date : 23-11-2017 This matter was called on for hearing today.

CORAM : HON'BLE MR. JUSTICE KURIAN JOSEPH HON'BLE MR. JUSTICE AMITAVA ROY

For Appellant(s) Mr. Santhosh Krishnan, Adv.

Ms. Sonam Anand, Adv.

Mr Yakesh Anand, Adv.

Mr. Sanjeev Anand, AOR

For Respondent(s) Mr. Sanjay K. Das, Adv.

Mr. Swetaketu Mishra, Adv.

Mr. V. K. Monga, AOR

UPON hearing the counsel the Court made the following O R D E R

The civil appeal is dismissed in terms of the signed

non-reportable Judgment.

Pending Interlocutory Applications, if any, stand disposed of.

(JAYANT KUMAR ARORA) (RENU DIWAN) COURT MASTER ASSISTANT REGISTRAR

(Signed non-reportable Judgment is placed on the file)