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Rajasthan High Court · body

2019 DIGILAW 1197 (RAJ)

Lokesh Mishra v. Assistant General Manager HRM, Dena Bank

2019-04-23

ALOK SHARMA

body2019
ORDER : Alok Sharma, J. 1. By this writ petition, the petitioner has challenged the order dated 13.4.2018, whereby consequent upon his promotion from Clerical grade to Officer Cadre in JMG Scale in the Dena Bank (hereafter 'the Bank'), he has been posted to Sikar Branch of the Bank. 2. Counsel for the petitioner submitted that vide letter dated 28.3.2018, the petitioner was offered promotion from clerical cadre to officer cadre. Thereon he gave his acceptance for being promoted as JMG Scale-I on 31.3.2018. Resultantly, the petitioner on his promotion as Officer in JMG Scale, and posted in Sikar Branch of Dena Bank. The petitioner's case is that he submitted a representation to the Bank authorities to retain him at Jaipur for the reasons of trade unions' requirements as he is an office bearer of the Union and also had a personal reason for being retained at Jaipur where his old ailing mother resides - but of no avail. Hence the writ petition. 3. Counsel for the petitioner Mr. Pradeep Choudhary submitted that the petitioner is an office bearer in the trade union of the Dena Bank. Being a General Secretary of the Union he had been raising the grievance of the members of the Union and participated in the negotiations too in that regard with the bank Management. In that capacity, he has filed petitions/applications against the bank authorities. As legitimate part of union activities, strike notices were also given to the bank management. All the aforesaid acts by the petitioner as part of employees' union activities have occasioned the bank's malice which has occasioned in the petitioner's transfer on promotion to the officer cadre Grade-I to Sikar. Counsel for the petitioner submitted that the petitioner has already completed about 58½ years of age and has about 1½ years left to his retirement. In this view of the matter, he should not have been transferred and been allowed to prepare for post retiral life. In support of the submission, reliance has been place on the judgment of the Division Bench in the case of Dr. (Smt.) Pushpa Mehta Versus Rajasthan Civil Services Appellate Tribunal & Ors. - 2000 (2) WLC (Raj.) 725. In this view of the matter, he should not have been transferred and been allowed to prepare for post retiral life. In support of the submission, reliance has been place on the judgment of the Division Bench in the case of Dr. (Smt.) Pushpa Mehta Versus Rajasthan Civil Services Appellate Tribunal & Ors. - 2000 (2) WLC (Raj.) 725. Counsel further submitted that about half a dozen vacancies of Scale I Cadre officers are available in Jaipur, but officers in the higher cadre have been posted there, where in-fact the petitioner ought to have been adjusted on one of them. 4. Reply to the writ petition has been filed. It has been submitted that while initiating the process of promotion of employees from the clerical cadre to Officers cadre in JMG Scale-I, a Memorandum of Settlement under Section 2(p) readwith 18 (1) of the Industrial Disputes Act, 1947 was arrived at between the Management of Dena Bank and All India Dena Bank Employees on 19.8.2017. As per clause 4(h)(iii) of the Memorandum, the Bank would retain the employees promoted under Seniority - cum - Merit Channel in the same zone to the extent of vacancies notified for that zone and the promotee officers in excess of the required number would be posted out of the zone and as far as possible in the nearest/adjoining zone in order of their preference depending upon the number of vacancies to be filled up from seniority cum merit and availability of vacancies. Counsel further submitted that Regulation 17(2) of the Dena Bank (Officers) Service Regulations, 1976 (hereafter 'the Regulations of 1976') provides that the said regulations shall apply to promotions of any category of employees to the JMG. In this view of the matter, the petitioner on being promoted to the post of JMG Scale-I was bound with the conditions stipulated in the Regulations of 1976. Counsel submitted that as per Memorandum of Settlement dated 19.8.2017, the petitioner has remained even on his transfer in Jaipur Zone only, as the Sikar Branch also falls in the Jaipur zone. On the averment of the petitioner with regard to illness of his mother, it has been submitted that discharge ticket of the petitioner's mother shows that she appears to be fine and is not suffering from any serious disease, which cannot be treated at Sikar. On the averment of the petitioner with regard to illness of his mother, it has been submitted that discharge ticket of the petitioner's mother shows that she appears to be fine and is not suffering from any serious disease, which cannot be treated at Sikar. Counsel for the Bank also submitted that during his service tenure, the petitioner has remained at Jaipur for a period of more than 15 years. The Management of the Bank has adopted transparency while making posting of the selected candidates and thus, all promoted as Scale-I officers have been transferred to other places. Counsel submitted that transfers on promotion are part of the Bank's policy and in-fact vide communication dated 28.3.2018 the petitioner was offered promotion from clerical cadre to officer cadre - on the condition of transfer on promotion. On 31.3.2018 the petitioner accepted the offer of promotion. In this view of the matter, the petitioner is estopped from challenging his transfer on promotion. It has been submitted that as per the Bank's regulation and policy all 12 promoted from clerical cadre to officers cadre in Jaipur region have been transferred. While the petitioner promoted on seniority cum merit has been transferred within Jaipur Zone, the other 10 promoted on merit have been transferred out of Jaipur zone. One promotee has foregone promotion. It has been further submitted that in any event transfer is an incident of employment. Further in cases of banks no vested interest of an employee in a particular posting - moreso on promotion - can be allowed as it entails dilution of transparency. Counsel for the Bank submitted that mere being a office bearer of the trade union operating in the bank is no ground for exemption from transfer on promotion under the bank's policy. Further in any event the petitioner cannot dictate to the Bank which employee is suitable for a particular post at a particular branch. 5. Heard. Considered. 6. As per the Bank's norms for transfer of officers, the officers who have completed 55 years of age except on promotion (underlining mine) and except officers in Scale III and above shall be exempted from transfers. Indisputably, the petitioner though over 55 years having accepted the offer of promotion to the post of JMG Scale-I which entailed a transfer was transferred from Jaipur Branch to Sikar Branch - within Jaipur region - a mere 150 Kms. away. Indisputably, the petitioner though over 55 years having accepted the offer of promotion to the post of JMG Scale-I which entailed a transfer was transferred from Jaipur Branch to Sikar Branch - within Jaipur region - a mere 150 Kms. away. Furthermore, the petitioner had remained in Jaipur for 15 years before his transfer to Sikar Branch. Even otherwise posting/transfers are incidents of service and matters of exercise of administrative discretion to facilitate efficient working of an organization. The Bank Management has almost limitless latitude, short of mala fides and transfer as a punishment, to choose work required of its different subordinates in distinct locations/different stations. In the exercise of that discretion in the instant case buttressed by a clearly enumerated policy there cannot be judicial interference until any illegality on judicially recognized grounds can be attributed to the impugned transfer/posting order. No case of mala fide a breach of any statutory rule in passing the impugned petitioner's transfer on promotion order has been made out. The petitioner being an office bearer of trade unions of Bank is of no consequence. That cannot be an insurance against a transfer on promotion as per the Bank's policy. Moreso the offer of promotion made to the petitioner and accepted by him entailed by itself a transfer and a new posting. In-fact having accepted the promotion order with such a condition the petitioner is estopped from challenging the transfer order. The illness of the petitioner's mother is clearly a red herring to invoke the Court's sympathy but is of no avail. Nothing on record suggests that the petitioner's mother suffers a serious illness which cannot be treated at Sikar. 7. So far as the ground to be retained in Jaipur due to short duration in the retirement of the petitioner is concerned, once the promotion with the condition of a fresh posting was accepted by the petitioner, he cannot claim to be posted at a place of his choice and/or retained in Jaipur. Reliance by counsel for the petitioner on the judgment of the Court in the case of Dr. (Smt.) Pushpa Mehta (supra) is not apposite for two reasons: One, that was not a case of transfer on promotion and two, there was no policy of transfer under consideration which entailed a transfer on promotion. Further the appellant Dr. Reliance by counsel for the petitioner on the judgment of the Court in the case of Dr. (Smt.) Pushpa Mehta (supra) is not apposite for two reasons: One, that was not a case of transfer on promotion and two, there was no policy of transfer under consideration which entailed a transfer on promotion. Further the appellant Dr. (Smt.) Pushpa Mehta had not accepted an offer of promotion with a condition of transfer and transferred thereon. 8. In this view of the matter, I find no force in this petition. 9. The writ petition is dismissed accordingly. 1. T0he stay order dated 19.4.2018 would stand vacated.