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Judgment
Heard Mr. S Dutta, the learned counsel for the writ petitioner and Mr. UK Nair, the learned Senior counsel for all the respondents.
The brief facts of the case is that the petitioner is a permanent resident of Uttar Pradesh and presently serving in the Gauhati Regional Office of
the Vijaya Bank in the post of Rajabhasa Adhikari as a Scale-III Officer of the Bank. The petitioner is posted at Guwahati in the aforesaid post since
the month of June, 2016.
The respondent Bank with its Headquarter at Bangalore has been issuing circulars from time to time prescribing the criteria for transfer and posting
of its employees including the Branch Manager /Officers. Vide Circular Letter No. 18004 dated 04.01.2018 ( Annexure-3), the respondent Bank
made available option from eligible Branch Managers/ Officers working in the Port Blair branches/ North East/ Hardship/ Disturbed area Branches
who have completed two years of active services as on 31.05.2018 to apply for transfer to home State or place of choice subject to certain terms and
conditions provided in the Circular. Amongst the various terms and conditions, mentioned, officials who are eligible are to exercise six options in order
of preference and the same is to be considered depending on the availability of vacancies in the opted region. The option exercised in the prescribed
format was to reach the Deputy General Manager of the Bank on or before 08.01.2018.
The petitioner submitted his option on 07.01.2018 in terms of the said Circular dated 04.01.2018 giving his option for transfer to the Regional office
in the Delhi, Meerut, Chandigarh, Lucknow, Ludhiana and Pune in order of preference. However, contrary to his option, the petitioner was transferred
to the Regional Office at Kolkata vide a common transfer order dated 17.04.2018 (Annexure-6). Being aggrieved, the petitioner submitted a
representation though proper channel on 19.04.2018 to the respondent No.2 seeking reconsideration of his transfer as per the preference submitted by
him. While the petitioner was anticipating the respondent Bank to modify the list of transfer by acting upon his representation, he was surprised to
learn that on 27.04.2018, although certain modification of the transfer orders were made but his name did not figure in the list. Thus, being aggrieved,
the petitioner is before this Court.
Appearing for the petitioner Mr. S Dutta, the learned counsel submits that the petitioner ought to have been transferred to the place of his choice
and not to Kolkata. He submits that the impugned transfer order dated 17.04.2018 has not been made in exigency of service but the same is a general
transfer and therefore, the respondent Bank cannot deny him the benefit of him being transferred to the place of his choice as he has already
completed his tenure at Guwahati. He further submits that if the petitioner is transferred to Kolkata or any place out of the North East region, he will
lose his right to be posted at the station of his choice. He submits that as per policy of the Bank, persons who are posted in the North-East amongst
others, on completing a tenure of two years are eligible to apply for posting at their home State or to a place of their choice. Therefore, if the petitioner
accepts his posting at the Regional Office at Kolkata, he will no longer have the right to make a choice for his posting.
Mr. UK Nair, the learned senior counsel appearing for the respondent Bank submits that the Circular Letter No.18004 dated 04.01.2018 is not
confined alone to officers working in North East Region having two years of active service as on 31.05.2018 but the same is also applicable for
employees working in other parts of the country who have completed three years of active service as on 31.05.2018. By referring to Clause-4 of the
Circular letter dated 04.01.2018, the learned senior counsel submits that if the Bank is unable to transfer an employee to the place/region opted, than
transfer will have to be made to any other region based on the requirement of the Bank. He submits that the petitioner being a Raja Bhasa Adhikari
with his experience, his service was found to be very much required at the Regional Office at Kolkata. As there was no vacancy in the place of
posting chosen by the petitioner, he was therefore posted in Kolkata. He also submits that the decision taken by the authority concerned is purely in
the interest of the public and the Bank and since no malafide has been pleaded by the petitioner, the petitioner cannot raise any grievance against the
decision taken by the respondent Bank. As provided by the guidelines, the Bank has every right to exercise its discretion in posting its employees
where their services are required.
Mr. UK Nair, learned senior counsel further submits that the Judgment dated 30.04.1998 passed in Civil rule No.3286 of 1996 is clearly
distinguishable to the present case. In that case, the petitioner had already completed 5 years of service at a particular place of posting. Therefore,
considering the fact that the employee concerned had the right to opt for a choice posting after completion of two years in a particular station, Court
directed the respondents authority to transfer him to a place of his choice. However, in the instant case, the petitioner had not even completed two
years when the transfer order dated 17.04.2018 was issued. By now, the petitioner has otherwise completed two years of services at the Regional
Office of the Bank in Guwahati and is therefore due to be transferred out of Guwahati.
Reiterating his submission, Mr. UK Nair submits that as the petitioner could not be accommodated for posting in Delhi for want of vacancy and
therefore, he was transferred to Kolkata Regional Office, where his service is very much required. Mr. UK Nair also submits that the petitioner
without prejudice to his right for making a choice posting in the next transfer season may be directed to join his posting at the Regional Office in
Kolkatta. Since, he has the apprehension that he may not be able to avail the liberty of making a choice posting. He submits that if he abides by the
impugned transfer order, he may still be given the chance to make his option. In so far as the scope of judicial review of transfer order by the Court,
the learned senior counsel relies upon the following cases:
(i) Union of India & Ors â€"vs- S.L Abbas, (1993) 4 SCC 357,
(ii) Sarvesh Kr. Awasthi â€"vs- UP Jal Nigam & Ors., (2003) 11 SCC 740
(iii) Mrs. Shilpi Bose & Ors â€"vs- State of Bihar & Ors. (AIR 1991 SC 532: 1991 Supp( 2) SCC 659
(iv) State of Haryana & Ors.â€"Vs. Kashmir Singh & Anr. (2010) 13 SCC 306
I have heard the learned counsels for the rival parties and I have perused the materials available on record. As may be noticed, facts admitted in
the present case is that the petitioner by now has completed 2 years term of posting at the Regional Office at Guwahati. Although he had not
completed the required two years as prescribed by the Circular dated 04.01.2018, the option he made was nevertheless not rejected by the respondent
Bank. However, as there was no vacancy in place of his choice, he was posted at Kolkata Regional Office of the Bank. Therefore, the question is as
to whether the decision to post the petitioner at Kolkata will amount to an arbitrary action on the part of the respondents or whether it will amount to
denial of his right to exercise his option. As can be noticed, another incumbent was posted in Delhi in the vacancy available and since that incumbent
is not a party to the present proceeding, it will not be possible for this Court to examine the feasibility of posting the petitioner in Delhi in his place.
Although, there is no indication in so many words in the impugned transfer order dated 17.04.2018, that the transfer was made in exigency of service
or in public interest, the respondents have otherwise contended that due to the experience acquired by the petitioner as Raja Bhasa Adhikari his
services are very much required in the Regional Office at Kolkata. The posting at Kolkata definitely is not the choice of the petitioner but
nevertheless, the respondent Bank as per their assessment maintain that they require his services there. Therefore, question is as to whether such
decision can be termed to be wholly arbitrary.
The Apex Court in the case of S.L. Abbas (supra) held that the order of transfer can be questioned before a Court only when the same is biased,
malafide or when it is made in violation of statutory provisions. In Shilpi Bose & Ors (supra), the Apex Court held that when transfer orders have
been issued by the competent authority without violation of any mandatory rule, the High Court will have no jurisdiction to interfere with the transfer
order. In the case of Kashmir Singh & Anr. (supra) the Apex Court held that transfer ordinarily is an incident of service and the Courts should be
very reluctant to interfere with the transfer orders as long as they are not clearly illegal. In the case of U.P. Jal Nigam(supra), the Apex Court
observed that transfer of an officer is required to be ordinarily made on the basis of a set of norms or guidelines. Therefore, considering the facts and
circumstances in the present case, it cannot be said that the transfer of the petitioner to Kolkata vide the impugned order dated 17.04.2018 is arbitrary
or unsustainable in law.
However, at the same time, having regard to the transfer policy issued by the respondent Bank as per Circular letter dated 04.01.2018, the
petitioner should not be deprived of his right to make a choice posting. Therefore, as suggested by the learned senior counsel for the respondent Bank,
despite the petitioner being posted at Kolkata, he should be allowed to exercise the choice posting. In the result, the impugned transfer order dated
17.04.2018 is not interfered with. But however, the respondent Bank shall give the petitioner the opportunity to exercise choice posting in the next
transfer season.
With the above observations and directions, the writ petition stands disposed of.