Amitabha Sen vs Allahabad Bank

S.B. Sinha, J.—Heard Mr. Balai Roy, learned Counsel for the Petitioner and Mr. Mitra, learned Counsel for the Respondent Bank. Keeping in view the statement made in the application for recalling, the order dated January 11, 1995, is recalled. With consent of the parties, the main matter is taken up for hearing. This writ application is directed against the order of transfer dated July 26, 1994, whereby and whereunder the Petitioner was posted as Manager at Topsia Branch under R.O. Midnapore.

Mr. Roy, learned Counsel for the Petitioner has drawn my attention to the Policy decision with regard to the transfer of the employees of Allahabad Bank dated June 4, 1994, as contained in Annex. �A'' to the writ application. The learned Counsel submits that the said transfer policy has been adopted for minimizing persona! hardship to the officers. My further attention has been drawn to the following clauses:

Basic Norms:

Subject to Regulation 47 of Allahabad Bank (Officers) Service Regulation''s, 1979, the Government guidelines and the needs and exigencies of the Bank, the following norms will be applicable.

(i). Transfer of Officers should be so planned so as to coincide with the academic year, i.e. April to June each year as far as possible and practicable.

However, transfer will be effected during other "three quarters of the year either on account of promotion or other exigencies of the Bank. In case mid-academic year transfer has taken place due to exigencies, the transferee officer will be allowed to retain Bank''s flat in the centre from which transferred upto a period of three months or the end of the academic year, if he so requests.

(ii). In case request is made in time for availing joining time after joining, this will normally be permitted within a period of three months from the date of joining to the new place of posting.

Except in emergent circumstances, an officer should ordinarily be given one month''s notice in respect of his transfer from one station to another, so that he can make adequate preparation for winding up his establishment and shifting to the new station.

(iii) Ordinarily, no officer may be retained in the same station for more than 6(six) years continuously or for such period as may be necessary depending upon the needs and exigencies of the Bank and/or for smooth operation of this policy. However, no officer shall ordinarily be disturbed from his place of posting before the expiry of 3 (three) years except in case of posting in difficult/hardship centers and in exigencies of the Bank.

(iv). Officers posted in Rural Centers should be considered for transfer to Semi-urban or higher areas on completion of 3 (three) years tenure at such Rural Centers. Normally, no officer shall be posted in Rural Centers for more than one tenure unless it is found that all other eligible officers in the Zone have completed their Rural Central tenure. In such cases, repeat posting in Rural Centre can be done on rotational basis as far as possible and practicable on first come first out basis. Services of an officer working in Rural Branch/Centre will not be utilized continuously at any other centre except short term posting/deputation during the tenure of such Rural posting of the officer concerned.

In deciding rotational posting the incumbent will be rotated within the same state within the same zone. Should there be no rural vacancy available within the same State, the incumbent may be posted in a rural branch in the nearest neighboring State both being in the same Zone.

However, the principle of repeat posting will not apply in case the officer concerned has to move out on first managerial assignment.

(xii). In case of transfer of married lady officers/ working spouse in the Bank, such transfer may be effected so as to ensure their staying together as per Government guidelines.

3.1 The learned Counsel for the Petitioner submits that the Petitioner''s wife has been working in a School and thus the Petitioner should have been posted at Calcutta. It is further submitted that keeping in view the fact that emergence of situation which would be a ground for premature transfer has not been indicated in the order, the same must be held to be invalid in law. The learned Counsel in this connection has relied upon a decision in the case of Ramadhar Pandey v. State of U.P. 1993 (4) S.L.R. 349. In the affidavit-in-opposition it has been categorically stated that by reason of the impugned order the Petitioner was posted as Manager for the first time. It has further been stated that in view of the transfer of the Petitioner as first managerial assignment, the provision of the aforementioned Circular letter dated -June 4, 1994, is not applicable. It has further been stated that in view of the emergent situation the Petitioner was directed to report to Tapsia Branch for taking up new assignment on August 8, 1994. In the affidavit-in-opposition it has been slated that managerial assignment has been offered to various employees on the- basis of their suitability-cum-seniority keeping in view the Bank''s exigencies and in order to make the work of the Bank undisturbed.

The Petitioner is an employee of Allahabad Bank which is merely a State within the meaning of Article 12 of the Constitution of India. The Petitioner being an employee does not have any fundamental right to be posted at a particular station. Transfer as is well-known is an incidence of service. It is also well-known that the High Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India cannot normally interfere with an order of transfer unless the same is mala tide and/or the violation of the provision of law. Reference in this connection has been made in the case of D.S. Dala Vs. State Bank of India and others, and the recent decision in the Supreme Court of N.K. Singh Vs. Union of India and others,

A bare perusal of the aforementioned guideline dated June 4, 1994, as contained in annexure ''A'' to the writ application demonstrates that the same is directory in nature. It may be true as has been submitted by Mr. Roy, learned Counsel, that the Petitioner had been transferred seven times out of which he was posted four times in the rural area and one time in the semi-urban area. The Petitioner was also posted in the Head Office at Calcutta. The impugned posting has been made on his first managerial assignment. Evidently Sub-clause (iv) of cl.3 of the said guideline dated June 4, 1994, is not applicable in this case. In the affidavit-in-opposition the Respondent has clearly stated that the posting had to be made keeping in view the Bank''s exigencies of situation. The posting of the concerned officer was made on his first managerial assignment. In my opinion, there is no deviation or departure from the said policy decision.

The submission of Mr. Roy, learned Counsel, to the effect that over-looking a guideline would amount to legal malice, cannot be accepted as correct.

In Ramadhar Pandey''s case (Supra) upon which strong reliance has been placed by Mr. Roy in any event public interest was not mentioned in the order of transfer. In the aforementioned case no'' affidavit-in-opposition has been filed which led the Supreme Court to held that in the absence of a counter-affidavit or even the relevant record, it was left with no option than to conclude that no public interest is involved. In the instant case, however, the Respondent has filed counter-affidavit showing necessity of posting of the Petitioner on first managerial assignment. It has categorically been stated in the said affidavit that the posting of the Petitioner as managerial assignment was made due to Bank''s exigencies and the same was offered on the basis of the suitability-cum-seniority.

Mr. Roy has however submitted that the Petitioner had filed a representation whereafter a purported order dated July 29, 1994, as contained in Annexure ''B'' to the application for further order was passed and in terms whereof the Petitioner was posted at Beniapukur in place of Tapsia but the said order has not been given effect to and the same has been cancelled.

Mr. Mitra, learned Counsel appearing on behalf of the Respondent submits that in case of one Gautam Ghosh, the said order had been given effect to but later on the same has been withdrawn. Keeping in view the fact that even Gautam Ghosh has been placed in the same posting and the said order has been withdrawn, in my opinion, no exception can be taken thereto in the Petitioner. I do not find any merit in this writ application. Accordingly, the writ application is dismissed.

There will be no order as to costs.

However, it goes without saying that the representation of the Petitioner dated July 29, 1994, and August 4, 1994, may be considered by the concerned Respondent in accordance with law at an early date.