Moti Lal Bhat vs Union of India

Mr. Ali Mohammad Magrey, J. - By the instant writ petition petitioner seeks a writ of certiorari to the effect that impugned order of transfer be

quashed. Besides, writ of mandamus is also sought to the effect, a) respondents be commanded to allow the petitioner to discharge his duties as

Officiating General Manager Scale-IV in Ellaquai Dehati Bank Head Office Srinagar till the disposal of writ petition SWP No. 2239/2015 or till

selection process for the post is finally concluded; b) respondents be directed to produce entire relevant record before the Court.

The case of the petitioner, in nutshell, is that he is performing his duties in the respondent bank as General Manager, Scale-IV officer, on

officiating basis, since April 2014.

It is stated that respondents have issued an order bearing no. HRD/458/HO/1602/2015-16, dated 26th October, 2015, transferring the

petitioner to Regional Office-I (Srinagar) as Regional Manager.

The said order of transfer is attacked precisely on the following grounds: a) is issued in violation of the applicable Rules b) is issued by the

incompetent authority, General Manager,; c) is an outcome of malice; d) that it has an effect of demoting the petitioner.

Respondents, upon notice, appeared and filed their detailed reply, resisting the claim of petitioner.

It is stated that the impugned order of transfer has been issued by respondent no. 5 with the approval of competent authority; therefore, the plea

raised by the petitioner on the competence of issuing authority has no substance.

Further it is stated that the assignment of charge of General Manager does not confer any legal, statutory or fundamental right upon the petitioner

to stake claim for the post and question his transfer to a post substantively held by him.

It is further stated that the assignment of General Manager was transitory in nature and it is all legal to alter the said assignment. The competent

authority has even conferred the assignment on permanent basis to another eligible officer.

The writ petition, therefore, has been prayed to be dismissed-

Heard learned counsel for the parties and considered the submissions made.

Learned counsel for petitioner submits that the order impugned is an outcome of malice; an act of vengeance. Elaborating his contention

learned counsel would submit that petitioner had filed a writ petition, SWP No. 2239/2015, which is still on board challenging the order by virtue

of which the permanent arrangement on the post of General Manager was made. He would further submit that the said order is stayed, upon

consideration, by this Court. He submits that the order impugned in the instant petition is nothing but a counter attack against the petitioner for

approaching this court.

Learned counsel for petitioner also submits that the General Manager who has issued the impugned order is incompetent, as per Rules, to

affect transfer of the petitioner, for; it is only the Board of Directors who can order transfer of petitioner and not the General Manager. He would

submit further that the order impugned is an act of fraud aimed at to scuttle the proceedings of the earlier writ petition in midway and to make

petitioner to succumb to the unwarranted pressure. He would further submit that the impugned order is issued in disregard of the petitioner's status,

as in effect, the petitioner has been demoted from the post of General Manager to the post of Regional Manager which is unwarranted.

Learned counsel for petitioner has also attacked the impugned order with reference to competence of Chairman of the Bank and invited

attention of this Court to the order passed in favour of petitioner adjusting him as General Manager on officiating basis with the approval of Board

of Directors. Reference, in this connection, is made to the Minutes of the Board of Directors Meeting dated 27th March, 2014.

In support of his contentions learned counsel for petitioner has referred to and relief upon case law reported as AIR 1966 SC 1283 titled

The Management of the Syndicate Bank Ltd., v. The Workmen> AIR 1986 SC 1955 titled B. Varadha Rao v. State of Karnataka

and others; AIR 2001 SC 24 titled Kumaon Mandal Vikas Nigam Ltd., v. Girja Shankar Pant and others; AIR 1991 SC 532 titled

Mrs. Shilpi Bose and others v. State of Bihar and others and 2015 SLJ 1 : 2015 (3)JKJ 398 (HC) titled Syed Hilal Ahmad and Ors.,

v. State of J&K and Ors.

On the other hand, learned counsel for respondents submit that a mere administrative arrangement made for smooth functioning of the affairs of

the Bank for a limited period cannot be insisted upon to continue till eternity. It is submitted that a temporary assignment given to petitioner does

not confer any right muchless an enforceable right to seek its continuity'. it is further submitted that the respondents are within their rights to transfer

their subordinates to a place thought proper in the interests of administration. Further it is submitted that petitioner cannot challenge the impugned

order of transfer on the premise that since he is holding the post, though on temporary basis, higher in status than the one he is holding substantively

therefore, he can only be transferred to the post equivalent to the higher one. It is submitted that the said assumption does not hold water as the

petitioner, in law, can only be transferred to a post equivalent to the one he is holding substantively and not to the one which is held by him for a

temporary phase.

It is further submitted that the impugned order does not, in any way, infringe petitioner's right and he cannot be allowed to hijack the

administrative process for his personal interests. In support of their contentions learned counsel refer to and rely upon the case law reported as

2001 AIR (SC) 3309 titled National Hydroelectric Power Corporation v. Bhagwan Shiv Prakash; 2004 AIR (SC) 4121 titled State of

Uttar Pradesh v. Siya Ram; 2004 AIR (SC) 1632 titled Union of India v. Janardhan Debanath and 2003 AIR (SC) 1115 titled Public

Services Tribunal Bar Association v. State of Uttar Pradesh.

I have given my thoughtful consideration to the matter and have minutely scanned the material made available.

Let us, in the first instance, take a look at the impugned order which is, for facility of reference, reproduced as under:-

...In supersession of order no HRD/439/HO/1472/2015-16, dated 12th October, 2015, it has been decided by the Competent Authority, to

transfer you to Regional Office-I (Srinagar) as Regional Manager.

Please inform, if you are related to any of the Staff Members posted at the transferee Branch/office.

Please be informed that the Bank reserves the right to transfer you to any Branch/office as per administrative convenience.

The order shall take effect immediately and shall be valid till further orders."" (Highlights supplied)

The plain reading of the order impugned makes it abundantly clear that the Respondent no. 5, General Manager, who has issued the order

impugned is a signatory only to effect and communicate the decision of the Competent Authority. Therefore, it would be wrong to say that the

order impugned has been issued by an incompetent authority.

Having said that, the star ground taken by the learned counsel for petitioner to challenge the order impugned goes.

Next point to deal with is, as to whether the order impugned is an outcome of malice/bias towards the petitioner? There is nothing on record to

substantiate that the order impugned is, in fact, an outcome of bias. Petitioner has miserably failed to bring on record any material to show that

respondents have actually developed some kind of bias against the petitioner and therefore the order impugned was passed. I do not see any

reason available that would convince that yes, in fact, a differential treatment is meted out to petitioner. The order impugned appears to be just a

routine exercise and having been issued in the interest of administration.

Therefore, the ground of bias also, on the above reasons, goes.

Now, let us see as to whether the order impugned has an effect of demoting the petitioner, as alleged? It is nobody's case that petitioner is

performing his duties as General Manager on substantive basis. Petitioner of his own has very categorically said that he is holding the post of

General Manager on temporary basis making it quite clear that the post he is holding on substantive basis is, in fact, the post of Regional Manager

and not the General Manager, therefore, again no reason is forthcoming to support the assertion of petitioner that by the impugned order he is

lowered in rank or is demoted. The said ground of challenge also, in the situation explained above, goes.

Now the only thing that needs finding from the Court is as to whether the law that has been cited by the learned counsel for petitioner provides

some support to him or not?

It is reiterated at the cost of repetition that I have gone through the entire material very minutely including the case law cited. The judgments

produced by learned counsel for petitioner, in support of his case, do not lend any support to him but in fact it goes to the very roots of his case.

The case law reported as AIR 1966 SC 1283 titled The Management of the Syndicate Bank Ltd., v. The Workmen only prescribes

the Tribunals to interfere in the transfer order only if it comes to the fore that the transfer is made mala fide or some ulterior purpose, like punishing

any employee for his trade union activities. It also says that there is no doubt that management of the Bank is in the best position to judge how to

distribute its employees between the different branches. The case law reported as AIR 1986 SC 195 titled B. Varadha Rao v. State of

Karnataka and others is quite different as it talks of the transfer order becoming appealable only if it results in alteration of any condition of

service to employee's disadvantage. Case law reported as AIR 2001 SC 24 is produced to show what the law says about bias and how bias has

been explained by the Hon'ble Apex Court. Since the plea of bias is already turned down, therefore, the case Law cited will not render any

assistance to petitioner Case law reported as AIR 1991 SC 532 titled Mrs. Shilpi Bose and others v. State of Bihar and others again talks

of interference of courts in the transfer matter only on mala fides. It says very clearly that Courts should not interfere with transfer orders which are

made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the

ground of mala fide. Again the case law cited by learned counsel for petitioner, reported as 2015 (3) JKJ398 [HC]; 2015 SLJ1 says that a

Government servant cannot insist that he is entitled to continue in a particular station/post from a definite period. Interference in the orders of

transfer by the Courts are very limited i.e. only on three grounds, if the order of transfer is passed on violation of any statutory Rule, or on mala fide

reasons or by an incompetent authority. Since all the pleas raised by the petitioner have been turned down above, therefore, the law cited by

learned counsel for petitioner does not lend any support but cuts the very roots of his case.

During the course of arguments, reference made by learned counsel for petitioner to the Minutes of the Board of Directors Meeting, to show

that only the Board of Directors can affect transfer of petitioner has no substance as in terms of the Act and the Rules it is only the Chairman who

has competence to affect transfers/promotions in respect of managerial cadre of the Bank.

The contention of learned counsel for petitioner that the order impugned has the effect of reverting petitioner to the lower position without the

approval of Board of Directors has no substance as there is no utterance in the strict sense with reference to holding of the position prior to

transferring him against the post he is substantively holding and further Chairman's powers with reference to applicable Act and the Rules is

undisputed.

I do not see anywhere in the writ petition a specific mention having been made to a Rule that has been violated by issuance of impugned order.

Otherwise also Rules applicable nowhere prescribe an embargo on the General Manager, respondent no. 5, to communicate the order of

Competent Authority, therefore, by no stretch of imagination can it be said that the impugned order has been issued in disregard of the applicable

rules.

For all what has been stated hereinbefore, the writ petition is found to be not even pennyworth to grant the reliefs prayed for. Accordingly, it is

dismissed, along with all CMPs. Interim direction, if any, shall stand vacated.

Registry to place a copy of the judgment on SWP No. 2239/2015.