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2005 DIGILAW 783 (KER)

D. Mohankumar v. The Deputy General Manager

2005-12-14

PIUS C.KURIAKOSE

body2005
Judgment :- The Deputy Manager, Accounts in the Thumba Branch of the State Bank of India is the writ petitioner. He impugns the order transferring him immediately to the Koottar Branch of the bank and directing the Thumba Branch Manager to relieve him with effect from 1.8.2005. One of the grounds on which he challenges the transfer order is that Koottar Branch is situated in the rural area of Idukki district and transferring him from Thiruvananthapuram even before he completes four years of service there, will violate the norms pertaining to transfer. Petitioner states that as per the gradation of the managerial staff of the bank, he belongs to the Grade MM II and as per categorization of branches, the Koottar Branch is one which is to be managed by a Deputy Manager of Grade MM II. Therefore, he says that the Branch Manager in Koottar branch is an officer of Grade MM II and the petitioner who is being transferred to that branch is also another officer of the same grade. Since the Branch Manager of Koottar branch is of Grade MM II, what actually happens by transferring the petitioner as Deputy Manager (Accounts) to that branch is that he is for all practical purposes degraded to the position of an Accountant or Field Officer coming under Grade JMG I, a grade lower to MM II. According to the petitioner, the order of transfer is actually an order of demotion. He contends that it is highly improper to transfer an officer like him belonging to Grade MM II to the Koottar branch. When he is compelled to work under the Branch Manager who is also of Grade MM II, it is for the Branch Manager to write and compile his confidential report and this situation will violate the rules which exist in the bank as well as all principles of natural justice. The Branch Manager and himself are persons who will have to appear simultaneously for promotion and if the Branch Manager is permitted to write his confidential report, the Branch Manager will gain an undesirable advantage over the petitioner. Ext.P4 order, he alleges, has been issued for the purpose of preventing the petitioner from gaining promotion and for appeasing the office bearers of the Officers’ Association who are opposed to the petitioner. Ext.P4 order, he alleges, has been issued for the purpose of preventing the petitioner from gaining promotion and for appeasing the office bearers of the Officers’ Association who are opposed to the petitioner. The instruction of the controlling Authority dated 30.7.2005 which is referred to in Ext.P4 has been passed without hearing the petitioner and the same is illegal. 2. It is a detailed counter affidavit which has been filed on behalf of the respondents by the Deputy General Manager of the Bank at the Thiruvananthapuram Zonal Office. According to the counter affidavit, Ext.P1 produced along with the Writ Petition is a general transfer order passed by the bank on 29.4.2005. Ext.P4 which is presently impugned is an order consequential to Ext.P1, The direction of the controlling authority made mention of in Ext.P4 is only a direction to implement Ext.P1 general transfer order. The petitioner filed a Writ Petition before this Court impugning Ext.P1 which was dismissed vide Ext.P2 judgment. This Court found that there is no warrant for interfering with Ext.P1. Nevertheless only out of benevolence this court permitted him to continue at Thumba for about two months more. Petitioner filed a Contempt of court Case without any basis complaining that Ext.P2 judgment has been violated. This court dismissed the Contempt of Court Case. Against Ext.P2 judgment, the petitioner filed Writ Appeal No.1563 of 2005 which was also dismissed by this Court. Suppressing all that transpired before the High Court, petitioner approached the Human rights Commission filing Ext.R1 (a) complaint. The Human Rights Commission also declined to interfere noticing the detailed object Ext.R1(b) filed by the bank. The present Writ Petition challenging the very same transfer order is barred on principles of estoppel and res judicata including constructive res judicata. When it was noticed that to evade the acceptance of Ext.P4 relieving order the petitioner was not attending the Thumba Branch, the bank sent the relieving order by registered post in his last known residential address. The same was sent in ordinary post as well as by courier. The registered cover was received back by the Bank with the endorsement “locked, intimation given and absent”. The petitioner has not reported in Koottar branch. His action has affected the functioning of that branch very seriously. His conduct is against public interest. The same was sent in ordinary post as well as by courier. The registered cover was received back by the Bank with the endorsement “locked, intimation given and absent”. The petitioner has not reported in Koottar branch. His action has affected the functioning of that branch very seriously. His conduct is against public interest. In order to contend that the petitioner is evading attendance on medical grounds without reason, the bank relies on Exts.R1(c) to R1 (k). The petitioner has been directed to make all future correspondences to Koottar Branch as per Ext.R1(1). The members of the supervisory staff of the State Bank of India are governed by the State Bank of India Officers’ Service Rules and as per Rule 47, officers are liable to be transferred and deputed everywhere in India. The impugned transfer order has been passed in accordance with the bank’s policy and norms. The challenge against the same was once rejected by this Court. After Ext.P1 order was issued, the Controlling Authority, the Assistant General Manager instructed the Branch Manager as per Ext.R1(m) to give relieving order to the petitioner. It was at that juncture that the petitioner approached this Court and filed the earlier Writ Petition. It was when the time allowed by this Court as per the earlier judgment was over that the Controlling Authority again issued Ext.R1(n) instructions to relieve the petitioner immediately. It is Ext.R1 (n) which is referred to in Ext.P4. The statement in Ext.P4 that the petitioner is being posted as Deputy Manager (accounts) is not correct. He is being posted as Deputy Manager (Advances). The petitioner has already served the Thiruvananthapuram center for more than four years. It is contended that there is no basis for the contention that the transfer order amounts to demotion. The petitioner is posted in MM II Grade itself. The Deputy Manager (Advances) in Koottar branch is of MM II Grade. The argument that two officers of MM II grade shall not occupy one branch in two designations is without basis. Majority of the officers of the State Bank of India belong to MM II Grade and in most of the branches where they are posted, the Branch Managers will also be of the same grade. There is nothing illegal about this. Such arrangements are made in administrative exigencies for the smooth performance of the bank’s activities. Majority of the officers of the State Bank of India belong to MM II Grade and in most of the branches where they are posted, the Branch Managers will also be of the same grade. There is nothing illegal about this. Such arrangements are made in administrative exigencies for the smooth performance of the bank’s activities. It will be clear from Ext.P1 itself that officers in MM II Grade are ‘posted in different posts in branches where the Branch Managers are of MM II Grade. The Writ Petition is an abuse of legal process. The petitioner’s confidential report will never be written or compiled by the Branch Manager of Koottar branch. Ext.P4 will not in any way affect the petitioner’s promotions in future. 3. The petitioner has filed a reply affidavit through which he denies the contentions in the counter affidavit and reiterates his earlier stand. The cause of action for this Writ Petition is not Ext.P1 referred to in Ext.P2 case. Instead, the cause of action is Ext.P3 circular dated 16.8.2005 and Ext.P4 dated 1.8.2005. Therefore, there is no legal bar for this Writ Petition. The circumstance that the petitioner will continue to draw the salary and other privileges of Deputy Manager of grade MM II is not a consolation for the unhappy situation that the petitioner will have to work as Assistant Manager under another officer of Grade MM II. Along with the reply affidavit, the petitioner has produced Ext.P5 (a) list of the branches in Thiruvananthapuram District and as Ext.P5(b), the administrative structure of Koottar branch as well as the Mangalapuram Branch in which the petitioner can be accommodated. He has also produced as Ext.P5 (c), a list showing the branches in Idukki District and the grades of Branch Managers of those branches. It is contended that in most of the branches in Idukki District, Deputy Managers of Grade MM II like the petitioner have been given Branch Managership. At Mangalapuram the Chief Managership of that branch is given to an officer of Grade SM IV while the post of Deputy Manger (Accounts in that branch is manned by a Junior Manager Grade I which is below MM II. It is possible for the management to accommodate the petitioner in a branch at Thiruvananthapuram itself. The bank has done so in the case of many others who were previously working at Thiruvananthapuram itself. 4. It is possible for the management to accommodate the petitioner in a branch at Thiruvananthapuram itself. The bank has done so in the case of many others who were previously working at Thiruvananthapuram itself. 4. The Assistant General Manager has filed an additional counter affidavit refuting the additional contentions raised through the reply affidavit. It is contended therein that the vacancy which is apparently seen available at Mangalapuram as per Ext.P5(b) has been filled up. It is further contended that accepting the contentions of the petitioner will be against the bank’s interest and public interest. 5. I have heard the submissions of Sri. K.C. John, learned Senior Advocate on behalf of the writ petitioner and Sri. P.V. Surendranath, learned Standing Counsel for the State Bank of India. 6. Sri. K.C. John would make his submissions on the basis of the petitioner’s pleadings and grounds and also the documents produced by him. It was very elaborate and persuasive submissions which were addressed before me by Mr. John and in support of his submissions the learned Senior Counsel relied on para.13 of the judgment of the Supreme Court in S.R. Tewari v. District Board, Agra (AIR 1964 SC 1680) and submitted that it is always open to this Court to discern the real nature and purport of an order by going behind the nomenclature and form of that order. According to learned Senior Counsel, though Ext.P4 is described as a transfer order, it actually amounts to an order of demotion. As directed by me, he supplied me with a copy of the previous Writ Petition, W.P.(C) No.15194 of 2005. 7. Sri. P.V. Surendranath, learned Standing Counsel for the Bank submitted that the present Writ Petition is an abuse of legal process and the same is liable to be dismissed with compensatory costs. Ext.P4 is only an order consequential to Ext.P1 which was under challenge in the previous Writ Petition. This Writ Petition therefore is barred. Mr. Surendranath who made submissions on the basis of the pleadings and the documents of the respondents would rely also on the judgment of the Supreme Court in National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan (2001) 8 SCC 574). He also handed over to me for perusal, copy of the judgment in the Writ Appeal which was preferred by the petitioner against Ext.P2. 8. He also handed over to me for perusal, copy of the judgment in the Writ Appeal which was preferred by the petitioner against Ext.P2. 8. When Exts.P1 and P4 are examined very closely in the light of the pleadings and documents in this case and also the pleadings and documents in W.P.(C)No.15194 of 2005, it will not be difficult to find that the argument of Sri. P.V. Surendranath that Ext.P4 order is one passed as consequential to Ext.P1 is not without force. Even though Sri. K.C. John may be right in his submission that the immediate cause of action for the present Writ Petition is Ext.P4 and the circular or the Controlling Authority’s instructions referred to in Ext.P4, the so-called immediate cause of action is directly traceable to Ext.P1 which was the cause of action for the earlier Writ Petition. The pleadings in the previous Writ petition will show that the grounds raised in the present Writ Petition for challenging the transfer were not raised at all in the previous Writ petition. Therefore, the contention that the present Writ Petition is barred by the principles of estoppel by judgment and res judicata including constructive res judicata has force. But in deference to the elaborate and persuasive submissions which were addressed before me by the learned Senior Counsel appearing for the petitioner, I am proceeding to consider the merits of the present Writ Petition. 9. The State Bank of India is the premier public sector bank of the country. It has got branches all over India and even overseas. The petitioner belongs to the managerial cadre of the State Bank of India. His service conditions are governed by the State Bank of India Officers’ Service Rules. It is not disputed that as per Rule 47 of those Rules, an officer of the State Bank of India is liable to transferred or posted by deputation anywhere in India. The grievance of the petitioner is that he has been transferred from Thiruvananthapuram city to a rural area in Idukki District, viz., Koottar. He says that he has already undergone rural service elsewhere and transferring him again from Thiruvananthapuram over to Koottar is mala fide and is the result of machinations of the State Bank of India Officers’ Association who are displeased with him. This argument of the petitioner does not impress me at all. He says that he has already undergone rural service elsewhere and transferring him again from Thiruvananthapuram over to Koottar is mala fide and is the result of machinations of the State Bank of India Officers’ Association who are displeased with him. This argument of the petitioner does not impress me at all. First of all, the rural service which the petitioner claims to have undergone was at Kadappuram in Chavakkad Taluk. Kadappuram as per the Bank’s classification and also in reality is not a rural area, but is a semi-urban area. The contention of the bank in that regard is not seen denied. Nobody in public employment has a legal or vested right to insist on a posting to a place of his choice. The petitioner who is governed by the State Bank of India Officers Service Rules is not entitled to raise a claim that he should be retained at Thiruvananthaputam. The Supreme Court has held in National Hydroelectric Power Corporation Ltd. (supra) that the liability of a person who has been appointed to a class or category of a transferable post to be transferred from one place to another is not only an incidence of service but is actually a condition of service and that such transfer orders are necessary in the efficiency of public administration and in public interest. The submission of Sri. K.C. John that the petitioner is being demoted through Ext.P4 has only surface attraction. It will become necessary for a bank like the State Bank of India having thousands of branches to engage more officers than one to manage business in branches depending upon the volume of business handled by the branches. It will be seen from Ext.P5 (b) Administrative Structure details pertaining to Koottar Branch itself that even in that branch there are four officers inclusive of the Branch Manager. The Bank’s claim that in other branches of the State Bank of India, officers of MM II Grade are working under Branch Managers who also belong to MM II Grade is not denied. Even going by Ext.P1, Serial Nos.14, 15 and 17 pertain to transfer of officers of MM II Grade to branches in which the Branch Managers are also of MM II Grade. Even going by Ext.P1, Serial Nos.14, 15 and 17 pertain to transfer of officers of MM II Grade to branches in which the Branch Managers are also of MM II Grade. When the employer-bank finds that such transfers are necessary in the exigencies of banking business and on considerations of smooth management, the petitioner is not entitled to question the wisdom. The petitioner has no complaint that the Branch manager of Koottar Branch is junior to him in the service of the bank. His complaint is only that he and the Branch Manager both belong to MM II Grade and are competitors for prospective promotions and if the Branch Manager were to write his confidential report, the same will be to his disadvantage. It has been unambiguously stated in the counter affidavit of the bank that under no circumstances the Branch Manager of Koottar Branch under whom the petitioner is to work will write or compile the petitioner’s confidential report. The petitioner has not chosen to meet this contention through the reply affidavit. It will certainly hurt the ego of the petitioner who is an officer of Grade MM II to work as Deputy manager (Advances) under a Branch Manager who is also of the same grade. But being a person governed by the SBI Officers’ Service Rules, the petitioner is bound to obey Ext.P4 transfer order. Notwithstanding that transfer order, the petitioner will continue to get all monetary benefits and privileges admissible to officers of MM II Grade. The bank’s contention that the salary and allowances paid by the bank to its officers generally and the facilities which the bank offers to its officers under transfer by way of accommodation, T.A., Transit Charges, etc. are relatively the best among the public sector banks in the country is not disputed by the petitioner. The result of the above discussion is that the Writ Petition fails and the same will stand dismissed. Even though some of the tactics adopted by the petitioner for avoiding his obligations under Ext.P4 after he came to know about it will justify accedence to Mr. Surendranath’s request for costs, I am not inclined to mulct the petitioner with the respondents’ costs.