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2002 DIGILAW 193 (ORI)

PRAMOD KUMAR MOHANTY v. UNION OF INDIA

2002-03-27

A.S.NAIDU, P.K.BALASUBRAMANYAN

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P. K. BALASUBRAMANYAN, C. J. ( 1 ) THE petitioners are officers in the State bank of India, described by the learned counsel for petitioners as a statutory bank. They are governed by the State Bank of India Officers service Rules. They are liable to be transferred from one branch to another or from one station to another. Rule 47 of the State of Bank of India officers Service Rules (in short, the 'service rules') provides for the same. It reads:"47. Every officer is liable for transfer to any office or branch of the Bank or to and place or deputation to any othe organisation, in India. "the Circle Transfer Policy marker annexure-5 provides for minimum an maximum period of retention of an officer in some branch/office. In Branches, as far as officers like the petitioners are concerned, the minimum period is two years and the maximum period is three years. The petitioners have completed the maximum period of three years in the Branches/offices in which they had been working. The Bank introduced the Voluntary retirement Scheme. The petitioners applied. The requests of the petitioners were not accepted. The petitioners have challenged the refusal to permit them to retire voluntarily in another writ petition. We are, therefore, not concerned with that question here. ( 2 ) IN the present writ petition, the petitioners challenge their transfer from the offices in which they were working for more than three years. In support of their challenge, they contend that the transfers were the result of the prejudice caused in the minds of the bank in view of their request to opt under the voluntary Retirement Scheme. It was the result of an administrative suspicion created in the minds of those in charge of the bank about those who had opted under the Voluntary Retirement scheme to quit and the feeling that they should be eased out of sensitive position or positions in which they would have access to strategic information relating to the bank and its customers. The transfers were really actuated by mala fides since th petitioners approached this Court challenging the refusal to accept their option to retire under the Voluntary Retirement scheme. It is also contended that the orders of transfer were clearly discriminatory since other officers who had put in more than three years in the concerned stations or offices, are being retained. The transfers were really actuated by mala fides since th petitioners approached this Court challenging the refusal to accept their option to retire under the Voluntary Retirement scheme. It is also contended that the orders of transfer were clearly discriminatory since other officers who had put in more than three years in the concerned stations or offices, are being retained. The petitioners have annexed a list of such officers coming under Bhubaneswar circle as Annexure-4. According to the petitioners, there are many others allowed to work merely on the ground that they are Office bearers of some Union recognised by the bank. It is contended that the Union leaders and the officers of the bank have been retained and the petitioners have been transferred and this action of the bank would amount to hostile discrimination. It is also pointed out that to a question put in the Rajya Sabha as to whether the office bearers of the Officers' Associations in nationalised banks are exempt from the general transfer policy, the answer of the minister was to the effect that as per the government guidelines, office bearers of the officers' Association in the nationalised banks, are not exempted from the general transfer policy of the Bank and they are to be treated at par with others in the matter of postings and transfers. The concerned answer of the minister is marked Annexure-3. Thus, the petitioners plead that in any event, transferring them out while retaining others similarly situated in the same station beyond the period prescribed by the norms and in violation of rule 47 of the Service Rules, was bad in law and their transfers should be quashed on the ground that it is discriminatory. ( 3 ) THE learned counsel for the State Bank of India submitted that all officers are liable for transfer and it cannot be said that in the case of the petitioners, discrimination was practised. Annexure-A to the counter affidavit suggesting that in Circle Level, five of the office bearers ought to be exempted from normal transfer policy of officers, is relied on. It is further contended that the petitioners were not eligible for retirement under the Voluntary Retirement scheme and hence their requests were turned down. There was no mala fides in the transfers. Annexure-A to the counter affidavit suggesting that in Circle Level, five of the office bearers ought to be exempted from normal transfer policy of officers, is relied on. It is further contended that the petitioners were not eligible for retirement under the Voluntary Retirement scheme and hence their requests were turned down. There was no mala fides in the transfers. They are not being victimised because they have approached this Court challenging the refusal to accept their requests for retirement under the Voluntary Retirement Scheme. The bank was willing to transfer all the officers who have completed more than three years in any station, office or place irrespective of whether that officer is an office bearer or not. It was conceded that Rule 47 of the Service Rules was clearly applicable to the office bearers of the union as well. There existed no real basis for annexure-A or the exception made therein especially in the context of the answer given by the Minister in the Rajya Sabha to the question put in that behalf. ( 4 ) IN view of the fact that OJC No. 3777 of 2001 has been filed by the petitioners challenging the rejection of their requests to opt to retire under the Voluntary Retirement scheme, we are not going into that question in this writ petition. The learned counsel on both sides also submitted that question has to be and can be decided in O. J. C. No. 3777 of 2001. What remains then is the contention that the present transfers were result of mala fide exercise of power. It is agreed on all hands that rule 47 of the Service Rules has over-riding effect. The petitioners have no case that they had not served the minimum periods in their respective offices or branches. In fact, they have completed three years. According to Rule 47 of the Service Rules and paragraph 6 of annexure-5 norms, it is clear that the petitioners are liable to be transferred. The bank effected the transfers. There is nothing to show that the transfers were the result of any mala fides. There is no sufficient or adequate plea or material to support a case of mala fides so as to enable us to strike down the order of transfer in the exigency of administration. The bank effected the transfers. There is nothing to show that the transfers were the result of any mala fides. There is no sufficient or adequate plea or material to support a case of mala fides so as to enable us to strike down the order of transfer in the exigency of administration. The only contention raised by the learned counsel for petitioners is that the bank was prejudiced because the petitioners have opted to retire under the Voluntary Retirement Scheme and had become suspicious of officers who exercised such option and the bank was also incensed by the fact that the petitioners have filed a writ petition in this Court challenging the refusal to accept their option to retire. These assertions are controverted by the bank. On the materials, we are not in a position to find that these facts, even if accepted to be true, are sufficient to hold that the orders of transfer are mala fide. The fact that the bank had issued annexure-2 Circular so as to streamline the working in view of the introduction of the voluntary Retirement Scheme, is no ground to hold that the bank is prejudiced against every officer who has opted for retirement under the voluntary Retirement Scheme. There is no acceptable material on the basis of which a court trained in law could come to such a conclusion. It is also not established that the transfer of the petitioners were ordered only because they had approached this Court seeking to challenge the refusal to permit them to voluntarily retire under the Voluntary retirement Scheme. The learned counsel for the bank submitted that as per the Scheme adopted by the bank, the petitioners were not entitled to opt for retirement under the voluntary Retirement Scheme, and there was nothing personal in the refusal of their requests. On the materials, we have no hesitation in holding that the plea of mala fides has not been established by the petitioners. ( 5 ) WHAT is seriously urged by the learned counsel for writ petitioners is that the transfers are discriminatory and that the other officers similarly situated, are permitted to remain in their respective places while the petitioners have been transferred out. Annexure-4 is relied on to show that the officers who have completed more than the contemplated period in the same station are allowed to continue. Annexure-4 is relied on to show that the officers who have completed more than the contemplated period in the same station are allowed to continue. That fact is not disputed by the bank. The only argument put forward on behalf of the bank in support of its action in not transferring some of the officers is that they are office bearers of union and they were being shown some special concession. In the face of Rule 47 of the Service rules and the answer given in the Rajya Sabha to the question in that behalf, it is difficult to appreciate this stand adopted by the bank or to accept its argument. An office bearer of a union is as much an officer as any other officer and he is also amenable to discipline of the bank. Rule 47 of the Service Rules applies to him equally. Nothing was shown to us to establish that Annexure-A filed with the counter affidavit has any legal sanction. The fact that it has no legal sanction is also clear from Annexure-3, the answer given by the minister concerned in the Rajya Sabha. Therefore, an office bearer of a Union is not entitled to any special treatment or privileged treatment in the matter of transfer. He is also liable to be transferred like any other officer. The learned counsel for the bank in fact submitted that the bank had no objection to transfer those officers, but the fact that they have not been transferred now cannot be a ground to set aside the orders of transfer issued to the petitioners. ( 6 ) WE find that the Karnataka High Court had occasion to deal with the claim of the officers of the Vijaya Bank in relation to a special treatment for office bearers of Unions. It was held by the said High Court that the leaders of the Unions are amenable to equal treatment in the matter of transfer ana a nationalised bank was not justified in introducing relaxation indicating that the transfer norms will not be applicable to officers who are office bearers of the Union, The karnataka High Court in All India Vijaya Bank officers Association and others v. Union of india and others, (Writ Appeal Nos. 7416-7420 of 2001) upheld the action of the bank and held that the office bearers are not entitled to any special treatment. 7416-7420 of 2001) upheld the action of the bank and held that the office bearers are not entitled to any special treatment. Petitions for special leave to appeal to the Supreme Court against the decision in Civil Appeal Nos. 219-223 of 2002 were rejected by the Supreme court by order dated January 21, 2002. Merely because an officer is an office bearer of a union, he is not entitled to any special privilege in the matter of transfer is the position accepted in this decision. In view of Rule 47 of the service Rules, we find no difficulty in holding that the bank is not entitled to make any distinction between an officer who is an office bearer of a Union and an officer who is not officer bearer of a Union or who may only be a member of the Union or not a member of any union. The bank is bound to treat all its officers equally and the communication Annexure-A relied on by the bank cannot have any legal effect in the face of Rule 47 of the Service rules. There is no justification for the Bank not to apply Rule 47 of the Service Rules uniformly. We direct the Bank to do so. The bank will ensure that all its officers are treated equally and even-handedly, and transfers are not confined to non-office bearers of Unions. ( 7 ) BUT, having said that, we do not think that the fact that some of the officers are retained can be made a ground to strike down the transfers of the petitioners on the facts and in the circumstances of the case. The transfers of the petitioners are clearly in terms of Rule 47 of the Service Rules, and the relevant procedure or norms indicated in Annexure-5. Merely because the bank spared some of its officers under a misconception that the office bearers of the Unions are a privileged class cannot be a ground for invalidating the action which is otherwise legal. All that is called for therefore, is to direct the bank to apply the transfer norms uniformly to all its officers, including the office bearers of Unions. All that is called for therefore, is to direct the bank to apply the transfer norms uniformly to all its officers, including the office bearers of Unions. The learned counsel for the bank has submitted that the bank will take immediate steps to apply the transfer norms uniformly to all and give effect to Rule 47 of the Service Rules properly and uniformly in letter and in spirit. ( 8 ) IN the result, we see no reason to interfere with the orders of transfer challenged in this writ petition. Hence, we decline to interfere and dismiss this writ petition. But, we direct the bank to ensure that Rule 47 of the service Rules and Annexure-5, the norms of transfer are applied uniformly to one and all without discriminating between office bearers of the Unions and others. We make no order as to costs. A. S. NAIDU, J. : I agree.