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Judgment
K. Chandru, J.—The Petitioner in all these three writ petitions is one and the same person. The first writ petition is filed by the Petitioner
challenging an order of the Respondent Bank dated 24.04.2009, wherein and by which, he was informed that his promotion to the post of
MMGS-III (Middle Management Grade Scale III) cannot be considered in the light of the light of the existing guidelines of the Bank/Government.
He also sought for consequential direction to implement the order of promotion dated 22.05.2007.
It transpires that before filing the present writ petition, the Petitioner had filed several writ petitions and contempt petitions. By an order dated
17.06.1998, the Petitioner''s services were terminated. He filed a writ petition before this Court being W.P. No. 8690 of 1998, challenging the
order of termination. He also sought for an interim stay of the order, which was also granted by this Court. When he found that the said order was
not obeyed, he filed contempt petition No. 402 of 1998. The writ petition and the contempt petition were heard together and this Court by an
order dated 22.12.1998 allowed the writ petition and directed reinstatement with continuity of service and attendant benefits. But with reference to
the contempt petition, the Court found that the Respondents had not committed any contempt. Therefore, the contempt petition was dismissed.
The said decision dated 22.12.1998 came to be subsequently reported in 2002 (2) L.W. 128.
Aggrieved by the said order, the Respondent Bank filed a writ appeal being W.A. No. 445 of 1999. In the meanwhile, the Petitioner filed W.P.
No. 757 of 1997, seeking for a direction to the Respondents, not to act upon the report sent by the Revenue Divisional Officer, Devakottai and
also to confirm his appointment with retrospective effect and to consider him for promotion to the next grade in the Bank. The writ appeal as well
as the writ petition came to be heard by a Division Bench. The Division Bench by a final order dated 09.09.2003 dismissed the writ appeal and
closed the writ petition.
Since the order of the Division Bench was not implemented, the Petitioner again filed a contempt petition being Cont.P. No. 354 of 2004. The
Division Bench held though there was no contempt, but nevertheless ordered costs of Rs. 1,00,000/-, which was in turn was agreed to be remitted
to the Coastal Calamity Fund of the Tamil Nadu State Government on the consent of the counsel for the Petitioner.
It was after the disposal of these proceedings, the Petitioner was promoted from the post of MMG Scale II to MMG Scale III by proceedings
dated 22.05.2007. The name of the Petitioner is found in the Annexure as Sl. No. 78 and it was issued by the General Manager P & IRM
Department, Kolkata from the Kolkata Office. But in the same communication, the branches and sub-ordinate officers were informed as follows:
Branches/Offices are requested to note that the above promotions are subject to the fact that the concerned officers are not suffering from any
disqualifications owing to pendency of charge-sheet and/or criminal prosecution against them or any wrong declaration furnished by them.
Even before the order could be issued to the Petitioner, he was placed under suspension by an order dated 19.05.2007. Therefore, the
promotion order was not given effect to. Pursuant to the suspension, the Petitioner was issued with charge memo dated 23.01.2008 alleging
certain irregularities, omissions and commissions committed by him, while he was functioning as Manager of Navinipatti Branch from 11.08.2005
to 18.05.2007. Subsequent to the explanation furnished by the Petitioner, an enquiry was conducted in terms of UCO Bank Officer Employees''
(Discipline & Appeal) Regulations, 1976. The enquiry was conducted by the Senior Manager, Tiruchirapalli Main Branch. In the enquiry report, it
was found that while allegations 1(a), 1(c) and 2 to 4 were proved and allegation 1(b) alone was held partially proved.
On the basis of the proved minutes of the enquiry report, the Disciplinary Authority agreed with the report of the Enquiry Officer and the
Petitioner was imposed with the penalty of reduction in one stage in the time scale of pay for a period of two years for the first Article of Charge
and for the Second Article of Charge, he was again imposed with another penalty of reduction in one stage in the time scale of pay for a period of
two years. It was also stated that during the period of punishment, he will not earn increments on pay during the reduction and such reduction will
have the effect of postponing the future increments. It was also stated that during the suspension period, he was not entitled to any Pay and
Allowances except what was already paid to him and drawn by him as subsistence allowance.
It was the case of the Petitioner that during this period, he was continued to be designated as MMG Scale - III and was also transferred from
one station to another station describing him as Officer in MMG Scale-III. Therefore, all of a sudden, by the impugned order dated 24.04.2009, it
was informed that he will not be given the promotion to MMG Scale-III and that the same cannot be accepted.
When the writ petition came up on 10.06.2009, notice was directed to be issued to the Bank and an interim stay was granted. The interim order
granted for a limited period was extended from time to time. Subsequently, the writ petition was admitted on 21.12.2009. The interim stay granted
was also made absolute on 21.12.2009.
On notice from this Court, the Respondents have filed a counter affidavit dated 17.08.2009. For the first time in the counter affidavit, it was
stated that the letter written by the Chief Officer dated 12.03.2009 describing the Petitioner as the Officer having MMG Scale-III was not valid.
Though his name was included in the list of circular dated 22.05.2007, he continued only in the scale-II post and was paid only the Scale-II
Officer''s salary. It was further submitted that the Petitioner cannot take advantage of the letter of communication sent by the Chief officer dated
12.03.2009. They also referred to the guidelines of the Government for promoting an officer and the guidelines dis-entitled a Government Servant
under suspension from getting promoted.
Even when that writ petition was pending, the Petitioner filed the second writ petition, being W.P. No. 15374 of 2009 challenging the order
dated 07.07.2009 issued by the Bank. By the said order, the Petitioner was informed that his appeal preferred against the punishment order dated
15.12.2008 pursuant to the charge memo dated 23.01.2008 cannot be entertained as the appeal was received by the Bank only on 09.05.2009.
Since under Regulation 17(1) of UCO Bank Officer Employees'' (Discipline and Appeal) Regulations, 1976, the appeal was not preferred within
45 days, it was dismissed without going into the merits of the case by the Appellate Authority. Challenging the same, the writ petition came to be
filed. In that writ petition, initially private notice was ordered. Subsequently, the writ petition was admitted on 21.12.2009 and posted along with
the previous writ petition.
On notice from this Court, a counter affidavit dated 23.11.2009 was filed. In the counter affidavit, it was stated that when the Regulation
provides a time limit, the Petitioner should have been preferred the appeal within the time and his plea was considered by the Appellate Authority
and was rejected. Therefore, there was no case for interfering with the order of the Appellate Authority.
The Petitioner, thereafter, had come forward to file the third writ petition, being W.P. No. 20141 of 2010 challenging an order dated
10.08.2010, wherein and by which, he was transferred from being Senior Manager(BM) Scale III at Theni Branch to Dindigul branch. The
Petitioner sought to set aside the said other with a consequential direction to retain him either at Theni Branch or to Madurai Branch except to
Dindigul Branch.
In that writ petition, notice of motion was ordered and interim stay was also granted on 03.09.2010.Subsequently, on 24.09.2010, the interim
stay was extended until further orders.
An application was filed by the Bank in M.P. No. 1 of 2011, seeking to vacate the said order together with supporting affidavit dated
15.02.2011.
In view of the interconnectivity among the three writ petitions, they were heard together and a common order is passed.
In W.P. No. 10098 of 2009, i.e., the first writ petition, the Petitioner was informed that his promotion granted to MMG Scale-III cannot be
considered in the light of the guidelines of the Bank and the Government. It has to be seen whether such a contention will apply to the case of the
Petitioner. It is an accepted fact that the Petitioner was promoted by proceedings dated 22.05.2007. In that order itself, it was stated that the
promotions are subject to the fact that concerned officers are not suffering from any dis-qualifications owing to pendency of charge sheet and/or
criminal prosecution against them or any wrong declaration furnished by them. In the present case, on the date of the said promotion order, the
Petitioner was only kept under suspension by proceedings dated 19.05.2007 which was issued three days prior to the promotion list. It is also an
admitted case that charges memo was framed only on 23.01.2008. Therefore, it cannot be said that there was a charge sheet pending against the
Petitioner on the day of the promotional order. Further, as seen from the documents produced by the Petitioner, the Chief Officer of the Zonal
Office while addressing the Petitioner by communication dated 12.03.2009 wherein the Petitioner was deputed to the Rajapalayam Branch, he
was described as Officer in MMG Scale III. Similarly, the Manager of the Rajapalayam Branch in his communication dated 19.03.2009, had
addressed the Petitioner as Officer in MMGS-III. Even after the order of transfer dated 10.08.2010, the Petitioner continued to hold the post as
Senior Manager in Scale III as set out. Though the order dated 10.08.2010 was during the pendency of the Petitioner having interim order, the
other two orders describing him as having Scale III post cannot be denied.
However in the counter affidavit filed dated 17.08.2009 in W.P. No. 10098 of 2009, a feeble attempt was made to show that even though the
circular dated 22.05.2007 was never implemented, the Petitioner had not challenged the non-implementation of the circular. The Chief Officer had
no right to send such a communication describing him as Officer holding Grade III post. The letter written by him was a mistake and either it was a
mistake or there was any collusion, the Bank is investigating the same. Further, it was contended that the Governments guideline regarding
promotion will apply and the gist of the guidelines was set out in the counter affidavit in paragraph 5.
The Respondent Bank had nowhere indicated that the substance of the Government guidelines has been incorporated as part of their statutory
regulation made under the power vested on them by the Bank Nationalization Act. On the contrary, in the promotion circular, they had only
referred to the pendency of the charge sheet or a criminal prosecution. Both are absence in the case of the Petitioner. The Respondents cannot
suddenly bring in the Government Guidelines in the matter of effecting promotion of bank officers.
A Full Bench of this Court in The Deputy Inspector General of Police and The Director General of Police Vs. V. Rani, has held that the
Government Guidelines are not statutory rules framed under the proviso to Article 309 of the Constitution and cannot be read as part of the
statutory rules. Therefore, unless and until, a charge sheet is issued, it cannot be said that disciplinary proceedings is pending against the Bank
officer.
In this context, it is necessary to refer to the judgment of the Supreme Court in Union of India Vs. K.V. Jankiraman, etc. etc., . The following
passages found in paragraphs 16 and 17 may be usefully extracted:
On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have
commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a
criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the
employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The tendency of preliminary
investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the
Tribunal on this point. The contention advanced by the learned Counsel for the Appellant-authorities that when there are serious allegations and it
takes time to collect necessary evidence to prepare and issue charge-memo/charge-sheet, it would not be in the interest of the purity of
administration to reward the employee with a promotion, and increment etc. does not impress us. The acceptance of this contention would result in
injustice to the employees in many cases. As has been the experience so far, the preliminary investigations take an inordinately long time and
particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the
issue of any charge-memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take
much time to collect the relevant evidence and finalize the charges. What is further, if the charges are that serious, the authorities have the power to
suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure.
There is no doubt that there is a seeming contradiction between the two conclusions. But read harmoniously, and that is what the Full Bench
has intended, the two conclusions can be reconciled with each other. The conclusion No. 1 should be read to mean that the promotion etc. cannot
be withheld merely because some disciplinary/criminal proceedings are pending against the employee. To deny the said benefit, they must be at the
relevant time pending at the stage when charge-memo/charge-sheet has already been issued to the employee. Thus read, there is no inconsistency
in the two conclusions.
Though subsequent to K.V. Jankiraman''s case (cited supra), the Central Government amended the Office Memorandum by an order dated
14.09.1992, even that amended Memorandum came to be considered by the subsequent judgment in Delhi Development Authority Vs. H.C.
Khurana, . The following passages found in paragraphs 4,5,8,9,11 reads as follows:
Para 2 is the relevant portion in these memoranda. In O.M. dated January 12, 1988, para 2 is as under:
Cases of government servants to whom Sealed Cover Procedure will be applicable
At the time of consideration of the cases of government servants for promotion, details of government servants in the consideration zone for
promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:
(i) Government servants under suspension;
(ii) Government servants in respect of whom disciplinary proceedings are pending or a decision has been taken to initiate disciplinary proceedings;
(iii) Government servants in respect of whom prosecution for a criminal charge is pending or sanction for prosecution has been issued or a decision
has been taken to accord sanction for prosecution;
(iv) Government servants against whom an investigation on serious allegations of corruption, bribery or similar grave misconduct is in progress
either by the CBI or any other agency, departmental or otherwise.
(emphasis supplied)
The substituted Clause (ii) in para 2, in O.M. dated September 14, 1992, is as under:
(ii) Government servants in respect of whom a charge-sheet has been issued and the disciplinary proceedings are pending;and
(emphasis supplied)
These words clearly indicate that the sealed cover procedure was applicable, in cases where the ''disciplinary proceedings are pending'' in
respect of the government servant; or ''a decision has been taken to initiate disciplinary proceedings''. Thus, on a decision being taken to initiate
disciplinary proceedings, the guidelines attract the sealed cover procedure. The reason is obvious. Where a decision has been taken to initiate the
disciplinary proceedings against a government servant, his promotion, even if he is found otherwise suitable, would be incongruous, because a
government servant under such a cloud should not be promoted till he is cleared of the allegations against him, into which an inquiry has to be made
according to the decision taken. In such a situation, the correctness of the allegation being dependent on the final outcome of the disciplinary
proceedings, it would not be fair to exclude him from consideration for promotion till conclusion of the disciplinary proceedings, even though it
would be improper to promote him, if found otherwise suitable, unless exonerated. To reconcile these conflicting interests, of the government
servant and public administration, the only fair and just course is, to consider his case for promotion and to determine if he is otherwise suitable for
promotion, and keep the result in abeyance in sealed cover to be implemented on conclusion of the disciplinary proceedings; and in case he is
exonerated therein, to promote him with all consequential benefits, if found otherwise suitable by the Selection Committee. On the other hand,
giving him promotion after taking the decision to initiate disciplinary proceedings, would be incongruous and against public policy and principles of
good administration. This is the rationale behind the guideline to follow the sealed cover procedure in such cases, to prevent the possibility of any
injustice or arbitrariness.
The question now, is: What is the stage, when it can be said, that ''a decision has been taken to initiate disciplinary proceedings''? We have no
doubt that the decision to initiate disciplinary proceedings cannot be subsequent to the issuance of the charge sheet, since issue of the charge-sheet
is a consequence of the decision to initiate disciplinary proceedings. Framing the charge-sheet, is the first step taken for holding the enquiry into the
allegations, on the decision taken to initiate disciplinary proceedings. The charge-sheet is framed on the basis of the allegations made against the
government servant; the charge-sheet is then served on him to enable him to give his explanation; if the explanation is satisfactory, the proceedings
are closed, otherwise, an enquiry is held into the charges; if the charges are not proved, the proceedings are closed and the government servant
exonerated; but if the charges are proved, the penalty follows. Thus, the service of the charge-sheet on the government servant follows the decision
to initiate disciplinary proceedings, and it does not precede or coincide with that decision. The delay, if any, in service of the charge-sheet to the
government servant, after it has been framed and dispatched, does not have the effect of delaying initiation of the disciplinary proceedings,
inasmuch as information to the government servant of the charges framed against him, by service of the charge-sheet, is not a part of the decision-
making process of the authorities for initiating the disciplinary proceedings.
The decision in Jankiraman1 is based, inter alia, on O.M. dated January 12, 1988. The facts of the cases dealt with in the decision in
Jankiraman1 do not indicate that the Court took the view, that even though the charge-sheet against the government servant was framed and
direction given to dispatch the same to the government servant as a result of the decision to initiate disciplinary proceedings taken prior to the
meeting of the DPC, that was not sufficient to attract the sealed cover procedure merely because service of the charge-sheet was effected
subsequent to the meeting of the DPC. Moreover, in Jankiraman1 itself, it was stated thus: (SCC pp. 117-18)
To bring the record up to date, it may be pointed out that in view of the decision of this Court in Union of India v. Tejinder Singh2 decided on
September 26, 1986, the Government of India in the Department of Personnel and Training issued another office memorandum No. 22011/2/86.
Estt. (A), dated January 12, 1988 in super session of all the earlier instructions on the subject including the office memorandum dated January 30,
1982... A further guideline contained in this memorandum is that the same sealed cover procedure is to be applied where a government servant is
recommended for promotion by the DPC, but before he is actually promoted, he is either placed under suspension or disciplinary proceedings are
taken against him or a decision has been taken to initiate the proceedings or criminal prosecution is launched or sanction for such prosecution has
been issued or decision to accord such sanction is taken.
These differences in the two memoranda have no bearing on the questions to be answered.
(emphasis supplied)
It is also not the stand of the Respondent Bank that they are having a sealed cover procedure as adopted by the Central Government in
relation to their service. Therefore, this Court having not satisfied about the issuance of the charge memo before the promotion panel was released,
the Respondent cannot contend that promotion order did not come into effect.
As rightly contended by Mr. T.K. Kulasekaran, that the argument of the Bank that they cannot consider the promotion panel dated
22.05.2007 especially when they have given effect to the order in respect of as many as 190 officers and only in the case of the Petitioner, it was
not given effect to also cannot be accepted. If the Respondent Bank wants to deny a promotion after the panel was released, they should pass a
specific order keeping that order in abeyance and must give reasons for the same. The order which is impugned came to be passed after a period
of two years and not immediately after the panel. Once the panel is issued with a rider which is extracted above, namely pendency of the charge
sheet and the same was also not found in the case of the Petitioner, the Respondents cannot deny promotion to the Petitioner.
In respect of the Respondent Bank interpreting the Regulations framed by them came to be considered by the Supreme Court in the context of
continuation of disciplinary proceedings after an employee reached the age of superannuation. In that context, the Supreme Court has held as to
when disciplinary action can be said to be pending against an employee. The said judgment in UCO Bank and Another Vs. Rajinder Lal Capoor, .
In Paragraph 21, it was observed as follows:
The aforementioned Regulation, however, could be invoked only when the disciplinary proceedings had clearly been initiated prior to the
Respondent''s ceasing to be in service. The terminologies used therein are of seminal importance. Only when a disciplinary proceeding has been
initiated against an officer of the bank despite his attaining the age of superannuation, can the disciplinary proceeding be allowed on the basis of the
legal fiction created there under i.e. continue ""as if he was in service"". Thus, only when a valid departmental proceeding is initiated by reason of the
legal fiction raised in terms of the said provision, the delinquent officer would be deemed to be in service although he has reached his age of
superannuation. The departmental proceeding, it is trite law, is not initiated merely by issuance of a showcause notice. It is initiated only when a
charge-sheet is issued (see Union of India v. K.V. Jankiraman11). This aspect of the matter has also been considered by this Court recently in
Coal India Ltd. v. Saroj Kumar Mishra12 wherein it was held that date of application of mind on the allegations leveled against an officer by the
competent authority as a result whereof a charge-sheet is issued would be the date on which the disciplinary proceedings are said to have been
initiated and not prior thereto. Pendency of a preliminary enquiry, therefore, by itself cannot be a ground for invoking Clause 20 of the Regulations.
Albeit in a different fact situation but involving a similar question of law in Coal India Ltd.12 this Court held: (SCC p. 631, paras 12-13)
12[13]. It is not the case of the Appellants that pursuant to or in furtherance of the complaint received by the Vigilance Department, the competent
authority had arrived at a satisfaction as is required in terms of the said circulars that a charge-sheet was likely to be issued on the basis of a
preliminary enquiry held in that behalf or otherwise. 13[14]. The circular letters issued by the Appellants put restrictions on a valuable right of an
employee. They, therefore, are required to be construed strictly. So construed, there cannot be any doubt whatsoever that the conditions
precedent contained therein must be satisfied before any action can be taken in that regard.
It was furthermore observed that: (SCC p. 632, para 18)
18[20]. A departmental proceeding is ordinarily said to be initiated only when a charge-sheet is issued.
(See also Union of India v. Sangram Keshari Nayak13.)
Aggrieved by the said judgment, the Respondent Bank filed a review petition before the Supreme Court, which was also rejected by the
Supreme Court in UCO Bank and Another Vs. Rajinder Lal Capoor, . In paragraph 20, it was observed as follows:
The 1976 Regulations provide for the mode and manner in which a disciplinary proceeding is initiated. It expressly provides for service of
charge-sheet. Service of charge-sheet is a necessary ingredient for initiation of disciplinary proceedings. A preliminary enquiry is not contemplated
under the 1976 Regulations. If such an enquiry is held, the same is only for the purpose of arriving at a satisfaction on the part of the disciplinary
authority to initiate a proceeding and not for any other purpose.
Therefore, it has to be seen that in the absence of any charge memo being initiated on the date of the promotion panel, it cannot be said that
disciplinary proceedings were pending. At this point of time, the Respondent Bank cannot take exception to the communication sent by the Chief
Officer. Even in the suspension order dated 19.05.2007, it was only indicated that disciplinary proceedings against the Petitioner was
contemplated.
Though, Mr. Srinath Sridevan, learned Counsel for the Respondent Bank submitted that in case the Petitioner succeeds in setting aside the
penalty of reduction in scale of pay, all benefits will be given to him, cannot be accepted in the light of the above clear legal position.
In view of the above, W.P. No. 10098 of 2009 stands allowed. The impugned order stands set aside. Since the Petitioner on the strength of
the stay order is continuing in the MMG scale III Post, he is entitled to continue in the said post.
In W.P. No. 15734 of 2009, the Petitioner''s statutory appeal was rejected only on the ground that it was filed beyond 45 days. In the appeal
memo filed by the Petitioner in Paragraph 14, he had given the reasons for the delay in filing the appeal, which reads as follows:
In as much as the Appellant herein had been on transfer from one place to another not allowing him to work in a particular place and within a
period of 3 months, he has been shifted from Zonal Office to Branch Office at Velacherry about 25 km from the city and thereafter from that
branch to another branch at Rajapalayam about 550 km from city. Even though he was working in that branch for one week, he has been again
shifted to another Branch. Thus in 3 to 4 months he has been shifted from one branch to another not allowing functioning at one place. Even in the
branch, he is being treated as a clerical staff and not as a Senior Manager. Therefore, the appeal could not be filed well in time. There is neither
willful nor wanton in not filing the above appeal in time. The delay in filing the appeal may therefore be condoned in the interest of justice and
equity.
The appeal itself was filed during May 2009 and the order of penalty was dated 15.12.2008. Even assuming there was a delay in filing the
appeal, it was hardly 100 days. Since it is only an internal appeal available for an employee before the Respondent Bank itself, the Respondent
cannot act on a hyper technical ground and refuse to condone the delay in entertaining the appeal. In the present case, the Petitioner could have
even attacked the original order, notwithstanding the refusal to condone the delay in filing the appeal.
On the contrary, Mr. T.K. Kulasekaran, learned Counsel for the Petitioner submitted that the Petitioner wanted to avail the remedy by way of
an appeal before the Appellate Authority, who is the General Manager of the Bank. This Court is satisfied that the delay in filing the appeal should
be condoned and the appeal must be directed to be heard by the first Respondent Appellate Authority on merits.
On the question of condoning delay in entertaining a petition by a quasi judicial authority, the Supreme Court has held that the procedural rigors
must advance substantial justice. In this context, it is necessary to refer to the judgment in N. Balaji Vs. Virendra Singh and Others, . In paragraph
10, it was observed as follows:
In the matter of applicability of the procedural rigors the Constitution Bench of this Court in Sardar Amarjit Singh Kalra v. Pramod Gupta1 has
observed that laws of procedure are meant to regulate effectively, assist and aid the object of substantial and real justice and not to foreclose even
an adjudication on the merits of substantial rights of citizen under personal, property and other laws. With the march and progress of law, the new
horizons explored and modalities discerned and the fact that the procedural laws must be liberally construed to really serve as handmaid, make it
workable and advance the ends of justice, technical objections which tend to be stumbling blocks to defeat and deny substantial and effective
justice should be strictly viewed for being discouraged, except where the mandate of law inevitably necessitates it. It follows from the decision by
the Constitution Bench that the procedure would not be used to discourage the substantial and effective justice but would be so construed as to
advance the cause of justice. The consolidated petition filed on 30-4-2003 by the Petitioner would not be taken to be a new petition presented
before the Central Registrar to declare it to be barred by limitation on the basis of its date of presentation; it shall have to be read in continuation of
the earlier representations which were referred to the Central Registrar for adjudication under the orders of the Delhi High Court.
It was also stated that in deciding with an application for condoning the delay, the State should not adopt technical plea as held by the Supreme
Court in V.K. Javali v. State of Mysore, 1987 Supp SCC 248 . In paragraph 2 of the judgment, it was held as follows:
We are of the opinion that regardless of the question whether there was some slight delay, the State Government ought not to have withheld the
appeal inasmuch as it had power to condone the delay on sufficient cause being shown. If the Appellant has a just claim on merits, it would not be
appropriate for the State to seek shelter under such a technical plea as delay in order to defeat his claim otherwise than on merits. He should not
be deprived of his right to prefer the appeal by invoking Rule 64(3) of the Rules. We, therefore, direct the State Government to forward the appeal
preferred by the Appellant to the Governor for a decision on merits in accordance with law in exercise of powers under Rule 57(5), within 90
days. The appeal is allowed to the aforesaid extent. There will be no order as to costs.
In view of the above, W.P. No. 15734 of 2009 stands allowed and the matter is remitted to the first Respondent for disposal on merits. The
said appeal shall be disposed of after giving due notice to the Petitioner within a period of three months from the date of receipt of a copy of this
order and the result shall be communicated to the Petitioner.
In W.P. No. 20141 of 2009, the Petitioner''s challenge to the order of transfer is misconceived. Merely stating that in Dindigul Branch there is
a problem as some of the earlier officers were suspended cannot be a ground. The Petitioner, being MMG Scale-III officer is bound to work
wherever he is deputed to work and since the Respondent Bank is principally a Bank operating in the Eastern Sector and only very few branches
are available in that region. The Petitioner cannot have a choice of branch in which he can be posted. In paragraphs 7 to 9 of the counter affidavit,
it was averred as follows:
The Respondent Bank being a Nationalized Bank is to cater to the financial needs of customers on a daily basis. The dindigul branch is a larger
one and the services of the Senior Manager are urgently required there. Apart from the bald allegation that the Respondents are transferring the
Petitioner to harass and humiliate him, there is no allegation that the Petitioner is in any way affected or aggrieved by the order of transfer. The
averment of harassment and humiliation is untrue and unwarranted.
The Respondent Bank is transferring the Petitioner only based on his promotion and the needs at Dindigul. The Petitioner is not entitled to say
that he will not work at Dindigul, but will work in anywhere else. The Respondent Bank has already taken note of the Petitioner''s request to be
transferred anywhere else in India. It is absolutely false to state that the same is a colorable excise of power, done for the purpose of vengeance.
There are no maladies in the order of transfer. I state that had the Respondent Bank wanted to wreak vengeance on the Petitioner, it would have
been natural to transfer him to a distant place. On the contrary, keeping in mind the Petitioner''s repeated requests to be posted in and around
Madurai, he has been transferred as Senior Manager Grade-III in Dindigul. The Bank functioning at Dindigul is adversely affected by the
Petitioner''s illogical refusal to serve at Dindigul.
Moreover, the Bank transfer policy very clearly states that no officer can be retained in the same branch on promotion. Therefore, when the
Petitioner sought for promotion in WP. No. 10098 of 2009, he knew very well that there is no question of him being retained at Theni after the
promotion.
In the revised transfer policy of the Bank, it was evolved after discussion with the Officer''s Association. In paragraph 26.1, it is stated as
follows:
Policy for Deployment of Officers on Promotion:
26.1. General:
An Officer on promotion need not necessarily be transferred if he is not otherwise due for transfer, provided vacancies are available. But they shall
not be retained in the same branch/office.
The Petitioner cannot have a choice of place of posting especially when he is holding a higher scale higher responsibility. In this context, it is
necessary to refer to the decision of the Hon''ble Supreme Court reported in State of U.P. and Others Vs. Siya Ram and Another, . In paragraph
5, it was observed as follows:
The High Court while exercising jurisdiction under Articles 226 and 227 of the Constitution of India had gone into the question as to whether the
transfer was in the interest of public service. That would essentially require factual adjudication and invariably depend upon peculiar facts and
circumstances of the case concerned. No government servant or employee of a public undertaking has any legal right to be posted forever at any
one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one
place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless
an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such
transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were appellate authorities
substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the
service concerned. This position was highlighted by this Court in National Hydroelectric Power Corpn. Ltd. v. Shri Bhagwan 1.
Further, the Hon''ble Supreme Court in yet another decision reported in State of U.P. and Others Vs. Gobardhan Lal, , in paragraph 7
observed as follows:
It is too late in the day for any government servant to contend that once appointed or posted in a particular place or position, he should continue
in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit
as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. Unless the
order of transfer is shown to be an outcome of a mala fide exercise of power or volatile of any statutory provision (an Act or rule) or passed by an
authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of
grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity
to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the
competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as
long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured
emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be
interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in
violation of any statutory provision.
The Supreme Court in yet another judgment in Rajendra Singh Vs. State of U.P. and Others, , in paragraphs 8 to 10 held as follows:
A government servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the
other. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident
inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary.
No Government can function if the government servant insists that once appointed or posted in a particular place or position, he should continue in
such place or position as long as he desires (see State of U.P. v. Gobardhan Lal 1, SCC p. 406, para 7).
The courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory
provisions or suffers from mala fides. In Shilpi Bose v. State of Bihar2 this Court held: (SCC p. 661, para 4)
In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the
transfer orders are made in violation of any mandatory statutory rules or on the ground of mala fide. A government servant holding a transferable
post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders
issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or
orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. If
the courts continue to interfere with day-to-day transfer orders issued by the government and its subordinate authorities, there will be complete
chaos in the administration which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the
transfer orders.
In N.K. Singh v. Union of India3 this Court reiterated that: (SCC p. 103, para 6)
6.... the scope of judicial review in matters of transfer of a government servant to an equivalent post without any adverse consequence on the
service or career prospects is very limited being confined only to the grounds of mala fides and violation of any specific provision....
In view of the above, there is no case made out to interfere with the impugned order of transfer. Hence, W.P. No. 20141 of 2010 stands
dismissed.
In the result, W.P. Nos. 10098 and 15734 of 2009 will stand allowed and W.P. No. 20141 of 2010 will stand dismissed. However, there will
be no order as to costs. Consequently, connected miscellaneous petitions are closed.