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2019 DIGILAW 527 (MP)

Suverna Bidua v. Union Bank of India

2019-07-19

VISHAL MISHRA

body2019
JUDGMENT : Shri D. K. Katare, Advocate for the petitioner. Shri G. K. Agarwal, Advocate for respondents No. 1, 2, 3 and 4. With the consent of parties, the matter is finally heard. 2. Present petition has been filed being aggrieved by the order dated 12-7- 2019 passed by the respondent whereby considering the application of the petitioner her earlier transfer order has been modified and instead of Rewa, she has been directed to be posted at Indore. 3. Counsel for the petitioner has submitted that on earlier occasion writ petition was preferred by the petitioner being W.P. No. 12088/18 wherein challenge was made to order dated 7-5-2018 passed by Assistant General Manager of Union Bank of India as well as order dated 11-5-2018 passed by Chief Manager, Union Bank whereby petitioner has been transferred to regional office Rewa. The grievance raised by the petitioner is that she is working as Assistant Manager in the Bank at Gwalior and is living with her husband who is working as Scientist (Grade E) in Defence Research and Development Service, Gwalior (DRDS) which is a Government of India Undertaking. It was further submitted that she is having two children one is six years and another is aged two years and five months. He has relied upon the guidelines/office memorandum dated 20th of September, 2009 issued by Government of India, Ministry of Personal, Public Grievances and pension (Department of Personal and Training) which provides certain exigency which could be profitably referred to at the instance of the petitioner wherein it has been mentioned that where one spouse belongs to a central service and the other spouse belongs to pubic sector undertaking the spouse may apply to the competent authority and the said authority may post the officer to same station and if there is no post in that station then to the nearest station. 4. The High Court vide order dated 18-6-2018 has finally disposed of the writ petition in the following terms :- “(1) that petitioner shall prefer a fresh representation elaborating all the grievance along with certified copy of this order within 10 days from today to respondent No. 3-Field General Manager Office, Bhopal. 4. The High Court vide order dated 18-6-2018 has finally disposed of the writ petition in the following terms :- “(1) that petitioner shall prefer a fresh representation elaborating all the grievance along with certified copy of this order within 10 days from today to respondent No. 3-Field General Manager Office, Bhopal. (2) that if the said representation is preferred within 10 days by the petitioner to the authority as referred above, then the authority shall consider the same in the light of the policy issued by the Government of India from time to time and/ or as per the prevailing guidelines thereafter, considering the fact situation, pass a detailed/ reasoned order under due intimation to the petitioner as expeditiously as possible, preferably within six weeks from the date of receipt of certified copy of this order. (3) that till the representation of the petitioner is decided, petitioner shall be allowed to continue at her present place of posting. It is made clear that this Court has not expressed any opinion on the merits of the case and the representation of the petitioner shall be decided on its own merits.” 5. It is further argued by the counsel for the petitioner that after passing of the impugned order a detailed representation was submitted vide Annexure P-9 dated 26-6-2018 along with all relevant documents. The aforesaid representation submitted by the petitioner was replied vide Letter dated 11-4-2019 wherein it was observed as follows :- “In pursuance to the representation dated 26-6-2018 we recall the transfer order dated 7-5-2018 therefore you are allowed to continue your services at Gwalior. Thereafter you proceeded on sabbatical leave from 29-6-2018 to 28-3-2019. It was informed vide Regional Office letter dated 28-9-2019 that your place of posting will be decided as per the requirement and existing guidelines of the Bank prevailing at the relevant time once you resume duty after the sabbatical leave. It was observed in the reply that the petitioner has joined at Gwalior on 1-6-2009 and since then the request for continuing service at Gwalior was regularly entertained and the petitioner was transferred after resuming the job to R.O. Indore as per the rules, requirement and existing guidelines of the Bank and he was informed to report to RO Indore”. 6. 6. The petitioner again preferred writ petition before this Court which was registered as W.P. No. 7969/2019 against the order dated 11-4-2019 which was finally heard and decided vide order dated 24-6-2019 and this Court was pleased to dispose of the writ petition quashing the orders dated 8-4-2019 and reply to notice dated 11-4-2019 with direction to the respondent Bank to decide the pending representation dated 26-6-2018 afresh in accordance with the transfer policy and properly address the issue raised in the representation one by one and pass a reasoned and speaking order as expeditiously as possible, preferably within a period of 15 days. 7. Learned counsel for the petitioner has submitted that despite the specific direction given by this Court in repeated round of litigation, the authorities have again submitted reply dated 12-7-2019 to the representation dated 26-6-2018 wherein it is pointed that his representation has been considered and decided and he was informed that the new posting will be communicated to the petitioner shortly. Counsel for the petitioner has argued that the aforesaid reply dated 12-7-2019 is again in violation of the direction issued by the Court in the earlier round of litigation and virtually it amounts to contempt of Court orders. It is further submitted that while submitting the reply the authorities have not taken into consideration the policies issued by the Bank and the Government of India from time to time. He has drawn attention of this Court to policy Annexure P/2 dated 30th of September, 2019 wherein clause 4. (v) is relevant which says that where one spouse belongs to a Central Service and the other spouse belongs to a PSU, the spouse employed under the PSU may apply to the competent authority and the said authority may post the officer to that station or if there is no post under the PSU in that station, to the station nearest to the station where the other spouse is posted. He has further drawn attention of this Court to the documents Annexure P/3 dated 5th of August, 2014 which deals with transfer of female employees in Public Sector Banks-minimizing their hardship, which reads as follows :- 8. That female employees of Public Sector Banks (PSBs) married or unmarried when placed/transferred away from their husband or parents as the case may be to distant locations face a genuine hardship and develop a feeling of insecurity. That female employees of Public Sector Banks (PSBs) married or unmarried when placed/transferred away from their husband or parents as the case may be to distant locations face a genuine hardship and develop a feeling of insecurity. Keeping this in view, it has been decided : “(i) To accommodate as far as possible placement/transfer of unmarried female employee, on her request, at a place where her husband is stationed or as near as possible to that place or vice versa”. 9. It is submitted by the counsel for the petitioner that the whole action of the respondent authorities is highly arbitrary and outcome of colourable exercise of powers. He has alleged mala fides against the respondent authorities and has stated that deliberately the petitioner is being harassed and is being transferred at distant place which is approximately 550 Kms away. On earlier occasion petitioner was transferred to Reva which is more that 5.00 Km away and now she has been transferred to Indore. Thus the action of the respondent bank is highly illegal and is outcome of mala fides. He has relied upon the judgment passed in the case of Secretary and Curator, Victoria Memorial Hall vs. Howrah Ganatantrik Nagrik Samity and ors., reported in (2010) 3 SCC 732 . Relevant portion is reproduced herein below :- “42. Thus, it is evident that the recording of reasons is a principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected may know as to why his application has been rejected”. 10. He has further relied upon judgment passed by Hon’ble Supreme Court in the case of Smt. Naseem Bano vs. State of U.P. and ors., reported in AIR 1993 SC 2592 and has argued that if no return is filed by the respondents, the Court is bound to rely upon the pleadings mentioned in the petition memo assuming it to be correct. 11. Accordingly, he has prayed for quashment of the impugned order with the strict directions to the respondents to pass an appropriate order on the representation submitted by him on 26-6-2018 in accordance with the direction issued by this Court in the earlier round of litigation. 12. 11. Accordingly, he has prayed for quashment of the impugned order with the strict directions to the respondents to pass an appropriate order on the representation submitted by him on 26-6-2018 in accordance with the direction issued by this Court in the earlier round of litigation. 12. Per contra, the counsel appearing on behalf of bank has denied the arguments advanced by the counsel for the petitioner and has contended that the order impugned is well reasoned order and is in compliance of the order passed by this Court. He has drawn the attention of this Court to the earlier order dated 24-6-2019 passed by this Court in W.P. No. 7969/2019 wherein it is held as under :- “At this stage, learned counsel for the respondents/Bank fairly admitted the position and submitted that due to misinterpretation of the order passed earlier by this Court, representation Annexure P/8 dated 26-6-2018 has not been decided point wise. Under these circumstances, one more opportunity may be granted to the respondents/Bank to decide the representation (Annexure P/8) and pass a reasoned and speaking order in accordance with policy and existing guidelines prevailing in the bank. Accordingly, impugned orders dated 6-4-2019 (Annexure P/1), relieving order dated 8-4-2019 (Annexure P/10) and reply to notice dated 11-4-2019 (Annexure P/12) are quashed and set-aside. Respondents are directed to decide the pending representation Annexure P/8 dated 26-6-2018 afresh in accordance with transfer policy and properly address the issues raised in the representation one by one and pass a reasoned and speaking order as expeditiously as possible preferably within a period of 15 days from the date of production of certified copy of this order.” 13. It is submitted that in pursuance to the aforesaid order passed by this Court, the authorities have categorically and point-wise decided all the grievance of the petitioner as mentioned in the representation dt. 26-6-2018. He has drawn attention of this Court to the representation submitted by the petitioner which is annexure P/9 and has pointed out that there were 10 paragraphs in the representation submitted by the petitioner which was taken care of by the authorities and every paragraph has been answered separately. 26-6-2018. He has drawn attention of this Court to the representation submitted by the petitioner which is annexure P/9 and has pointed out that there were 10 paragraphs in the representation submitted by the petitioner which was taken care of by the authorities and every paragraph has been answered separately. It is contended that the arguments of the petitioner that his representation is not being decided and only reply to the representation is submitted is incorrect because from the last para of the impugned order it is apparently clear that the word “rejected” is mentioned after decisions on each and every point raised by the petitioner. He has further contended that the aforesaid reply/order dated 12-7-2019 has been passed after following the due procedure and following guidelines of the policy. He has drawn attention of this Court to Annexure P/3 dated 8th of August, 2014 a letter issued by under secretary to the Govt. of India to Chairman, SBI/CMDs of all Public Sector Banks including IDBI and has pointed out that the aforesaid instructions were only advisory and were directed to frame policy on the subject with the approval of the Board suitably incorporating the above and take immediate action and compliance. Thus, it is pointed that the aforesaid instructions were only advisory in nature. He has drawn attention of this Court to policy Annexure P/4 dated 15-12-2016 clause 4.1 is quoted herein below : “4.1. It may be noted that these clauses are subject to amendment as advised by RBI/Government guidelines which may be received by the Bank from time to time. 4.2. The bank will be free to transfer any officer anywhere in the country to meet its exigencies. Notwithstanding anything contained in this Policy, the Bank reserves its right to retain/transfer any officer, entirely at its discretion”. 14. He has further drawn attention of this Court to clause 4.5 which deals with Rotation Transfer and clause 4.5 (i), 4.5 (ii), 4.5 (iii) which reads as under :- “4.5 (i) The Bank will be free to transfer any officer, anywhere in the country to meet its exigency. 4.5 (ii) Every officer will be be liable to be transferred from one branch/ office to another branch / office, once in 3 years, within the Region. In the case of administrative officers, duration of retention may be upto 5 years. 4.5 (ii) Every officer will be be liable to be transferred from one branch/ office to another branch / office, once in 3 years, within the Region. In the case of administrative officers, duration of retention may be upto 5 years. It is further clarified that the office may be transferred from branch/office before the period of 3 years also, depending upon the business needs of the Bank. 4.5 (iii) All officers who have completed 6 years in a particular Region will be rotated, inter-Region, within the Zone. The male / female officer who have reached the age of 54 / 52 years respectively and have already served in the Region continuously for 6 years and have as of 1st April of respective financial year are subjected to job rotation.” 15. He has further drawn attention of this Court to clause 4.9 (i) and 4. 9 (ii) which reads as under :- “4.9 (i) A female officer can seek transfer to join her husband after marriage or due to transfer of her husband from the present location. Such request may be considered at the sole discretion of the Management, subject to availability of vacancy in the respective location. 4.9 (ii) The transfer on separation of spouse ground is allowed only twice in her entire career and there should be minimum gap of 3 years between two such transfers.” 16. It is further argued by learned counsel for the petitioner that in similar circumstances the respondents authorities have accommodated one Rakesh Kumar Bagharia and Smt. Suneeta Raghuvanshi and they are retained at the same place where spouse are working and they are working for more than 10 years. It is further argued that the Bank is having right to transfer his employees at any place all over India. As far as the contention of the petitioner is that hostile discrimination is being done with the petitioner as the said two employees are being retained in terms of the same policy is concerned, it is contended that Suneeta Raghuvanshi is handicapped and he is covered by clause 4.11 of the Policy Annexure P/4 which deals with persons with disabilities and they are normally exempted from routine periodical transfers outside the Station. As far as case of Rakesh Kumar Bhagharia, he is covered with clause 4.5 (iii) of the said Policy wherein it is mentioned that male/female officers who have reached the age of 54/52 years and have already served in the Region continuously for 6 years as of 1st of April of respective financial year are subjected to job rotation. 17. Thus the petitioner is not similarly situated to the said two employees, therefore no benefit can be extended to the petitioner. He has further drawn attention of this Court to (Officers’) Service Regulations, 1979 governing service conditions of the Bank employees which is still in force and has stated that Rule 47 deals with transfer which reads as follows :- “Rule 47. Every officer is liable for transfer to any Office or Branch of the bank or any place in India.” 18. He has further relied upon the law laid down by the Hon’ble Supreme Court in the case of Bank of India vs. Jagjit Singh Mehata, reported in AIR 1992 SC 519 wherein the issue regarding posting of husband and wife at same station was dealt with and it was held that posting at one station is not a right. 19. He has further relied upon Judgment in the case of Union of India and ors. vs. S. L Abbas, reported in AIR 1993 SC 2444 . Thus, it is submitted that the order impugned has rightly been passed in terms of the direction given by the High Court in the earlier round of litigation. Thus, he has prayed for dismissal of the writ petition. 20. Heard learned counsel for the parties and perused the record. 21. It is admitted fact that the petitioner is working at Gwalior since the year 2009. Earlier transfer orders dated 7-5-2018 and 11-5-2018 passed by the respondents Bank was put to challenge by the petitioner by filing writ petition being W.P. No. 12088/2018 which was finally decided vide order dated 18-6- 2018. Considering the fact that the representation submitted by the petitioner was decided as directed for decision on his representation within stipulated time frame, then petitioner was directed to continue at the present place of posting. Considering the fact that the representation submitted by the petitioner was decided as directed for decision on his representation within stipulated time frame, then petitioner was directed to continue at the present place of posting. In compliance of the order of this Court, the representation submitted by the petitioner was decided and rejected vide Annexure P-10 dated 11-4-2019 against which another writ petition was preferred being W.P. No. 7969/2018 which was finally heard and disposed of vide order 24-6-2019 with direction to respondent to decide the pending representation dated 26-6-2018 afresh in accordance with the transfer policy and properly address the issue raised and pass reasoned order as expeditiously as possible. Considering the order passed by this Court and also considering the policy governing services, the representation was decided point wise. 22. From the perusal of the representation dated 26-6-2018, it is seen that the petitioner has raised 10 points in the representation, the respondents authorities have considered each and every point separately and the representation submitted by the petitioner was rejected. The petitioner has placed heavy reliance on Annexure P/3 dated 8th of August, 2014. From the perusal of the aforesaid document, which appears to be advisory in nature. Annexure P/4 is transfer policy of Office of Union Bank of India and also Regulations wherein regulation 47 deals with transferability and clearly speaks of that every officer is liable for transfer to any Officer or Branch of the Bank or any place in India. Clause 4.2 clearly speaks of that the Bank will be free to transfer any officer anywhere in the country to meet its exigencies. Notwithstanding anything contained in this Policy, the Bank reserves its right to retain/transfer any officer, entirely at its discretion. Clause 4.5 deals with rotation transfer as already pointed hereinabove. 23. It is clearly mentioned that Bank is free to transfer anywhere to meet its exigency. Every officer will be liable to be transferred from one branch/office to another branch/office once in three years within the region in case of administrative offices, duration of retention may be upto five years. However the officer who has completed more than six years in a particular region will be rotated in region within the zone. Clause 4.9. (i) clearly speaks of that the request submitted by female officer for transfer at her husband working place. However the officer who has completed more than six years in a particular region will be rotated in region within the zone. Clause 4.9. (i) clearly speaks of that the request submitted by female officer for transfer at her husband working place. Such request may be considered at the sole discretion of the Management, subject to availability of vacancy in the respective location. Clause 4.9 (ii) deals with transfer on separation of spouse ground is allowed only twice in her entire career and there should be minimum gap of three years between two such transfers. The petitioner since the year 2009 has been working at Gwalior after her marriage and she has exercised her option for working at Gwalior and during the period of 10 years continuously serving at Gwalior. She has exhausted all her options. In letter dated 11-4-2019 Annexure P/10 which is decision on earlier representation reflects that the petitioner joined the Bank on 5-4-2009 and on her request she was given posting at Gwalior. She joined at Gwalior on 1-6-2019. Since then on her request she was continuously posted at Gwalior and after availing Sabbatical leave and resuming duty on 29-3-2019 she was transferred to regional office at Indore as per Rules and Regulations and existing guidelines of the Bank. Thus from the aforesaid it is clear that the petitioner has exercised all his options available as per guidelines and now she is rightly being transferred and in the representation submitted by the petitioner in pursuance to Court’s order rightly being decided vide impugned order dated 12-7-2019 and the same has rejected. In the last line of the order it is clearly mentioned that the new posting of the petitioner shall be communicated to the petitioner shortly. 24. Transfer is an incident of service and postings cannot be claimed as a matter of right as has been held by Division Bench of this Court in the case of R.S. Chaudhary vs. State of M.P., I.L.R., (2007) M.P. 1329. Relevant paragraph is quoted herein below : “Transfer Policy formulated by State is not enforceable as employee does not have a right and Courts have limited jurisdiction to interfere in the order of transfer. Court can interfere in case of mandatory statutory rule or action is capricious, malicious, cavalier and fanciful. Relevant paragraph is quoted herein below : “Transfer Policy formulated by State is not enforceable as employee does not have a right and Courts have limited jurisdiction to interfere in the order of transfer. Court can interfere in case of mandatory statutory rule or action is capricious, malicious, cavalier and fanciful. In case of violation of policy, proper remedy is to approach authorities by pointing out violation and authorities to deal with the same keeping in mind the policy guidelines.” 25. The Hon’ble Supreme Court in the case of Bank of India vs. Jagjit Singh Mehta, reported in AIR 1992 SC 519 , has held as under :- “5. There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employers be different. The desirability of such a course is obvious. However, this does not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the decision in accordance with the administrative needs. In the case of All India Services, the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other’s posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees. In such a case the couple have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion or any appointment in an All-India Service with the incident of transfer to any place in India, subordinating the need of the couple living together at one station, they cannot as of right claim to be relieved of the ordinary incidents of All-India Service and avoid transfer to a different place on the ground that the spouses thereby would be posted at different places. In addition, in the present case, the respondent voluntarily gave an undertaking that he was prepared to be posted at any place in India and on that basis got promotion from the clerical cadre to the Officers’ grade and thereafter he seeks to be relieved of that necessary incident of All-India Service on the ground that his wife has to remain at Chandigarh. No doubt the guidelines require the two spouses to be posted at one place as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees”. 26. The Hon’ble Supreme Court in the case of Union of India and ors. vs. S. L. Abbas, reported in AIR 1993 SC 2444 , has held as under :- “6. An order of transfer is an incident of Government Service. Fundamental Rule 11 says that “the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority”. Fundemental Rule 15 says that “the President may transfer a government servant from one post to another”. That the respondent is liable to transfer anywhere in India is not in dispute. It is not the case of the respondent that order of his transfer is vitiated by mala fides on the part of the authority making the order, though the Tribunal does say so merely because certain guidelines issued by the Central Government are not followed, with which finding we shall deal later. The respondent attributed “mischief” to his immediate superior who had nothing to do with his transfer. All he says is that he should not be transferred because his wife is working at shillong, his children are studying there and also because his health had suffered a set-back some time ago. He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines. They do not have statutory force. 27. He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines. They do not have statutory force. 27. Thus considering the aforesaid judgments of the Hon’ble Supreme Court, it is clear that transfer is an incident of service and posting cannot be claimed as a matter of right. The representation submitted by the petitioner is being decided in terms of the directions issued by the High Court. Posting was to be informed to the petitioner. 28. The petitioner has alleged mala fides. However, petitioner has not impleaded any person in his personal capacity as respondent against whom mala fides are alleged. In absence of such impleadement aforesaid ground cannot be taken into consideration. Accordingly, order impugned does not call for any interference. Petition is dismissed. No order as to costs. Petition dismissed.