CHINTA HARAN BISWAS v. UCO BANK — 1995 DIGILAW 101 (CAL)

S. B. SINHA, J. ( 1 ) -THIS writ application is directed against an order of transfer dated 12. 4. 94 as contained in annexure 'b' to the writ application whereby and whereunder tie petitioner has been transferred to Ranipool Branch. ( 2 ) MR. Ashutosh Law, learned Counsel appearing on behalf of the petitioner has raised a number of contentions in support of this writ application. The learned Counsel has drawn my attention to a Circular letter dated 4. 3. 89 as contained in annexure 'c' to the writ application and submitted on the basis thereof that from a perusal of Item No. 63 of List of Branch identified as non-family station it would appears that Ranipool has been treated to be a difficult centre-non-family station. The learned Counsel submits that the respondent Bank having issued a policy decision with regard to the transfer in terms of Circular letter dated 8. 8. 87 as contained in annexure 'i' to the writ application cannot violate its own policy decision. The learned Counsel for the petitioner contends that there are other officers who are willing to go to Ranipool Branch but their cases have not been considered whereas the petitioner has been transferred despite his representation which was made prior to and after the order of transfer was passed on the ground that both the wife and daughter are suffering from Heart disease. The learned Counsel submits that the petitioner is a member of Scheduled Castes and the order of transfer has been passed mala-fide in order to victimize the petitioner in violation of the policy decision adopted by the Central Government and/or the respondent Bank. The learned Counsel has drawn my attention to the statements made in paragraphs 16, 20 and 21 of the writ application. The learned Counsel further has also drawn my attention to the statements made in paragraph 24 of the writ application and submitted on the basis thereof that the respondents are bound to act in terms of the policy decision of transfer of the Officers and the violation thereof would amount to discrimination. The learned Counsel submits that the petitioner as well as the UCO Bank Scheduled Casts and Tribes Employees' Council have made representations praying for cancellation of the order of transfer of the petitioner but despite the same the order of transfer is sought to be implemented. The learned Counsel submits that the petitioner as well as the UCO Bank Scheduled Casts and Tribes Employees' Council have made representations praying for cancellation of the order of transfer of the petitioner but despite the same the order of transfer is sought to be implemented. It is submitted that this order of transfer has been passed not on the ground of administrative convenience in view of the fact that the petitioner has already served a rural Branch and, therefore, there is no reason to transfer him again to the rural Branch. The learned Counsel further submits that the wife of the petitioner is also an employee of the Central Government and on that ground too, the petitioner should have been accommodated at Calcutta. It is also submitted that in identical matter this Court has granted an interim order of stay. ( 3 ) THE learned council appearing on behalf of the respondent Bank has pointed out that from a perusal of the petitioner's own representation dated 22. 5. 94 it appears that the petitioner was aware that the order of transfer in question was a routine transfer. The learned Counsel submits that there is no bar in the Circular letter issued by the respondent Bank that a person cannot be posted in a rural area for more than one year or in a difficult station at Ranipool. The learned Counsel submits that keeping in view the difficulties faced by the employee being posted in such a difficult area the respondent Bank has adopted a policy decision so as to confer certain additional benefits to such employee including deduction of retention period two years from the normal period of three years. ( 4 ) THE learned Counsel for the respondent submits that the petitioner has failed to make out a case of mala fide in the writ application. The learned Counsel however contends that there is no bar in transferring the member of Scheduled Caste to a difficult place which has been done in exigencies of the administration. The learned Counsel for the respondent has also drawn my attention to paragraphs 4c and 4d of the affidavit-in-opposition and submitted on the basis thereof that the order of transfer as against the petitioner has been passed after taking into consideration the case of all concerned employees. The order of transfer as against the petitioner is a routine transfer. The learned Counsel for the respondent has also drawn my attention to paragraphs 4c and 4d of the affidavit-in-opposition and submitted on the basis thereof that the order of transfer as against the petitioner has been passed after taking into consideration the case of all concerned employees. The order of transfer as against the petitioner is a routine transfer. The learned Counsel submits that even assuming that there has been violation of the guide-line, this Court in exercise of its writ jurisdiction under Article 226 of the Constitution cannot interfere with the said order of transfer. 4a. The learned Counsel for the respondent Bank in this connection has placed strong reliance upon the Division Bench decision of this Court in the case of UCO Bank v. Sushanta Mukherjee reported in 1991 Labour and Industrial cases, 1959 and in the case of Union of India v. S. L. Abbas reported in AIR 1993 S. C. 2444. ( 5 ) IT is well-settled and in fact it has not been disputed at the Bar that a High Court in exercise of its Writ jurisdiction under Article 226 of the Constitution cannot interfere with an order of transfer unless the same is passed mala fide or the same has been passed in violation of the mandatory provision of the statutory rules. Ordinarily this Court has no jurisdiction to interfere with an order of transfer. ( 6 ) THE respondent Bank is a State within the meaning of Article 12 of the Constitution of India. The writ application as against the respondent would therefore be maintainable only when the fundamental right of the petitioner is violated. Transfer is an incident of service. The petitioner has been transferred from one place to another and it cannot be said that any fundamental right of the petitioner has been violated thereby not any legal right of the petitioner has been affected. ( 7 ) THERE cannot be any doubt that the petitioner's Bank should follow the policy decision in relation to the transfer of the employees. However a bare perusal of the policy decision adopted by the respondent Bank as reflected in the Circular letter dated 18. 8. 87 as contained in annexure 'i' to the writ application would show that the Officers in scale-1 to which post the petitioner belongs is required to be posted in their home States "as far as possible". However a bare perusal of the policy decision adopted by the respondent Bank as reflected in the Circular letter dated 18. 8. 87 as contained in annexure 'i' to the writ application would show that the Officers in scale-1 to which post the petitioner belongs is required to be posted in their home States "as far as possible". ( 8 ) CLAUSE-5 of the said transfer policy for the Officers to which my attention has been drawn by Mr. Law, learned Counsel, states that ordinarily the officers who have stayed for the average longest period would be considered for transfer. The said policy decision, therefore goes to show that the said transfer policy is not mandatory in nature and is merely directory. It is not denied that Ranipool is a difficult non-family station. It is not also in dispute that the petitioner is a member of Scheduled Castes. ( 9 ) THE contention of Mr. Law to the effect that the petitioner has been victimized and the order of transfer has been passed mala fide as against the petitioner only because he was a member of Scheduled Castes, cannot be accepted. The petitioner has not made out any case of mala fide in his writ application. It has not been stated in the writ application that he has been victimized or he has been transferred to Ranipool only because he was a member of Scheduled Caste. ( 10 ) IT is well known that the petitioner is bound by the averment made in a writ application and thus the same is required to verify the statement made therein. The statements made in paragraphs 16, 20 and 21 upon which strong reliance has been placed by Mr. Law, learned Counsel, in support of the plea of mala fide have not been verified. In fact it has not been stated that the order of transfer as against the petitioner has been issued with a mala fide motive. No concerned officer has been impleaded in this writ application so as to enable the Court to adjudge the malice. ( 11 ) THE Supreme Court recently in the case reported in (1994)6 SCC 98 while dealing with the order of transfer categorically held that the Court shall not make any roving enquiry with regard to the allegation of mala fide. ( 11 ) THE Supreme Court recently in the case reported in (1994)6 SCC 98 while dealing with the order of transfer categorically held that the Court shall not make any roving enquiry with regard to the allegation of mala fide. ( 12 ) THE Division Bench of this Court in the case of UCO Bank and Ors. v. Sushanta Mukherjee reported in 1991 Labour and Industrial Cases, 1959 while considering the 1979 Circular categorically held that the order of transfer can be challenged only if it is mala fide or arbitrary. The learned Judges in the said decision held as follows :"indeed, the burden resting on an employee who challenges the ordinary incident of transfer is very heavy indeed. Positive indication must come for establishment of at least one of the more serious classes of infirmity, on the basis of which a writ Court strikes down a colourable exercise of administrative power. It may be a personal vendetta, or an extraneous and irrelevant consideration, or a totally arbitrary and whimsical action which vitiates an impugned transfer". ( 13 ) FOR the aforementioned reasons, in my opinion, no case has been made out for quashing the order of transfer on the ground of mala fide. The petitioner has not been able to show that by reason of the order of transfer he has been victimized or that the said order of transfer has been passed in violation of the mandatory provision of the statutory Rules. ( 14 ) MR. Law, learned Counsel for the petitioner very fairly concedes that the policy decision of the respondent Bank relating to transfer of employees does not put any embargo on transferring an employee to a Rural area only on the ground that earlier he has served in a Rural area. ( 15 ) THE contention of Mr. Law, learned Counsel, however, is that by not transferring the other employees belonging to Scale-I officers who have not served any rural area, the petitioner again has been transferred to Ranipool. As the order of transfer is directory in nature, violation thereof would not attract Article 14 of the Constitution of India. In view of the decision of the Supreme Court of India, an order of transfer cannot be questioned in a Court of law unless the same is vitiated by mala fide or is made in violation of the statutory provision. In view of the decision of the Supreme Court of India, an order of transfer cannot be questioned in a Court of law unless the same is vitiated by mala fide or is made in violation of the statutory provision. ( 16 ) IN the case of Union of India v. S. L. Abbas reported in AIR 1993 SC 2444 the Supreme Court categorically in paragraph 7 of the said judgment held as follows :-"who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court can not interfere with it. While ordering the transfer there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right". ( 17 ) IN that case the Supreme Court was following the earlier decision in the case of Bank of India v. Jagjit Singh Mehta reported in (1992)1 SCC 306 wherein it was held that despite the policy decision that the husband and the wife should be posted at one place, transfer of one of the spouse in violation of such policy decision would not attract the writ jurisdiction of this Court. The Supreme Court held that no spouses can claim such a posting as of right if the departmental authorities do not consider it feasible. ( 18 ) THE Apex Court observed as follows :-"it does not also say that the Court or the Tribunal can quash the order of transfer, if any of the administrative instructions guidelines are not followed, much less can it be characterised as mala fide for that reason. To reiterate, the order of transfer can be questioned in a Court or Tribunal only where it is passed mala fide or where it is made in violation of the statutory provisions". ( 19 ) ALTHOUGH this Court cannot interfere with the said order of transfer under Article 226 of the Constitution of India, the petitioner is not remediless. To reiterate, the order of transfer can be questioned in a Court or Tribunal only where it is passed mala fide or where it is made in violation of the statutory provisions". ( 19 ) ALTHOUGH this Court cannot interfere with the said order of transfer under Article 226 of the Constitution of India, the petitioner is not remediless. ( 20 ) THE petitioner can file a representation before the concerned authority and such representation should receive consideration at the hands of the appropriate authority. ( 21 ) MR. Law, learned Counsel, however, on the other hand submits that the representation of the petitioner would be deemed to have been rejected. ( 22 ) MR. Law, learned Counsel, summits that the order of transfer has been passed despite filing of representation before passing such order. He also, however, contends at the same time that as the petitioner's representation having been expressly rejected, he had been deprived of preferring any appeal before the higher authority. The submission of Mr. Law to my mind is inconsistent with each other. If the petitioner thought that he would not get justice at the hands of the appropriate authority who in the instant case admittedly is respondent no. 5, it was open to him to file the representation before the higher authority. He has not chosen to do so although according to him his representation would be deemed to have been rejected. ( 23 ) HOWEVER, keeping in view the facts and circumstances of this case, I may observe that it would be open to the petitioner to file an appropriate representation either before the respondent no. 5 or before the Higher Authority so as to enable them to consider the difficulties of the petitioner particularly with reference to the ailments of his wife and daughter. ( 24 ) SUCH representation, if filed by the petitioner, may be considered by the concerned respondent at an early date and preferably within a period of two weeks from the date of receipt of such representation. ( 25 ) HOWEVER it will be open to the petitioner to file a representation before the appropriate authority to consider the period of absence as a period on special leave. If such representation is filed by the petitioner, the same may be considered by the concerned authority in accordance with law. This writ application is dismissed with the aforementioned observations. If such representation is filed by the petitioner, the same may be considered by the concerned authority in accordance with law. This writ application is dismissed with the aforementioned observations. There will be no order as to costs. Application dismissed.