Delhi High Court
Smt Shakuntala Devi & Anr. vs Central Bank Of India on 13 September, 2023
Author: Satish Chandra Sharma
Bench: Chief Justice, Sanjeev Narula
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 13.09.2023
% LPA 632/2023 and C.M. Nos. 47303/2023, 47304/2023, 47305/2023
& 47306/2023
SMT SHAKUNTALA DEVI & ANR. ..... Appellants
Through: Mr. Sanjeev Kumar, Advocate.
versus
CENTRAL BANK OF INDIA ..... Respondent
Through:
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJEEV NARULA
SATISH CHANDRA SHARMA, CJ. (ORAL)
1. The present Letters Patent Appeal (the "LPA") is filed challenging
order dated 25.04.2023, passed by the learned Single Judge in W.P.(C.) No.
4163/2023 ("Impugned Order"), titled Central Bank of India v. Smt.
Shakuntala Devi & Anr.
2. The undisputed facts of the case reveal that the Appellant No.2 i.e.,
Mr. Devender Kumar Sharma, is an employee working with the Central
Bank of India/Respondent ("Bank") and he started his service career by
joining the bank in the clerical grade at the Bank's Branch at Sukhdev
Vihar, Delhi on 16.01.1995. He was, thereafter, transferred on 22.10.2001
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by the Respondent Bank within the Delhi Zone. On 22.05.2007, he was
again transferred within the Delhi Zone. On 06.10.2008, the Appellant No.
2 was promoted as Assistant Manager and upon promotion he was
transferred to Jaipur, Rajasthan. On 07.12.2012, the Appellant No.2 was
again transferred back to Delhi and since then, the Appellant No.2 has
uninterruptedly been performing his services at Delhi. Meaning thereby,
that the Appellant No. 2, except for a span of 4 years where he was
transferred to Jaipur, has remained in Delhi since 1995.
3. The transfers of employees of the Bank is governed by the Bank's
Transfer Policy and keeping in view the same, as the Appellant No.2 was
due for rotational transfer, he was transferred to Gorakhpur, Uttar Pradesh
on 21.04.2022.
4. The Appellant No. 1, who is the mother of Appellant No. 2 submitted
an application before the Chief Commissioner for Persons with Disabilities
(the "Chief Commissioner") being aggrieved by the transfer of the
Appellant No. 2 on the ground that she is suffering from 47% locomotive
disability, and a request was made for the cancellation of his transfer. The
said application was preferred under the Right of Persons with Disabilities
Act, 2016 ("RPWD Act"). The Appellant No. 1 also placed reliance upon
an Office Memorandum dated 08.10.2018 issued by the Department of
Personnel and Training ("DOPT") and pleaded before the Chief
Commissioner that the Appellant No.2 cannot be transferred as Appellant
No. 1 has 47% locomotive disability and is dependent on Appellant No. 2.
5. In those circumstances, the Chief Commissioner has passed an order
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recommending the employer to cancel the transfer of Appellant No. 2 and to
report compliance. The order of the Chief Commissioner for Persons with
Disabilities while recommending cancellation of transfer has also held that,
in case, the recommendation is not implemented, the matter shall be reported
to the Parliament. The Bank in those circumstances came up before this
Court being aggrieved by the recommendations/ order passed by the Chief
Commissioner and the learned Single Judge, while passing the Impugned
Order, in paragraphs 13 to 17 has held as under:
"13. In the opinion of the Court if an employee is allowed to
scuttle his transfer by relying upon the physical condition of his
mother, that too in a complaint filed by the mother, it would be
impossible for organisations to run their activities and manage
personnel. The settled legal position is that Courts are reluctant
to interfere in transfers, especially when the nature of the job is
transferable in nature. A Division Bench of this Court in
Amarjeet Singh Dagar v. Union of India 2022:DHC:847-DB
has held as under:
"23. At the outset, it must be emphasised that an
employee in a transferable job has no vested right
to remain posted at one place. The Courts should
not readily interfere with the transfer order which
is made in the public interest and for
administrative reasons, unless the transfer order is
made in violation of any mandatory statutory rule
or on the ground of mala fide. Even if a transfer
order is passed in violation of executive
instructions or orders, the Courts ordinarily
should not interfere with the order, instead, the
affected party should approach the higher
authorities in the concerned department. If the
Courts continue to interfere with day-to-day
transfer orders issued by the Government and/or
its subordinate Authorities, there will be complete
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chaos in the administration which would not be
conducive to the public interest. Interference under
Article 226 of the Constitution of India is permitted
only where the Court finds either the transfer
order is mala fide or that the service rules prohibit
such transfer or that the Authorities issuing the
order were not competent to pass the same. It must
be remembered that transfer ordinarily is an
incidence of service and must be left to the
discretion of the Authorities concerned, which are
in the best position to assess the necessities of the
administrative requirements of the situation. The
Courts must maintain judicial restraint in such
matters. {Refer: Shilpi Bose (Mrs.) & Ors. vs. State
of Bihar & Ors., 1991 Supp. (2) SCC 659; Mohd.
Masood Ahmad vs. State of Uttar Pradesh & Ors.,
(2007) 8 SCC 150; State of Haryana vs. Kashmir
Singh & Anr., (2010) 13 SCC 306; and Major
Amod Kumar vs. Union of India, (2018) 18 SCC
478)}."
14. In the present matter, it is not the case of the Respondents
that the transfer order is mala fide in nature.
15. Further, this Court is of prima facie of the opinion that in
the facts of this case, the order recommending the cancellation
of transfer would have a cascading effect on other employees
and the overall administration of the Bank. The mother of the
Respondent No. 2 is claimed to be suffering from 47%
locomotor disability - meaning thereby that she may be having
difficulty in walking. Being a senior citizen, the mother may be
required to travel to Gorakhpur with her son. That by itself
cannot be a reason to stop the transfer itself. In the facts of the
present case, the impugned order shall remain stayed till the
next date of hearing.
16. The Bank shall however provide for any facility or
expenses, in order to enable the travel of the Respondent No. 2
with his mother from Delhi to Gorakhpur.
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17. Let rejoinder be filed within six weeks."
6. The learned Single Judge has observed that the transfer order of the
Appellant No. 2 is not vitiated with mala fide and it has been passed keeping
in view the administrative exigencies. The learned Single Judge has held
that as the Appellant No. 1 is suffering from locomotive disability, the Bank
shall provide any facilities or expenses in order to enable the travel of the
Appellant No. 1 from Delhi to Gorakhpur. The Appellant being aggrieved
by the Impugned Order has approached this Court by way of a LPA.
7. Learned counsel for the Appellants has vehemently argued before this
Court that the transfer order is violative of the Office Memorandum dated
08.10.2018 which provides immunity to a Government employee who is a
care-giver of dependent daughter/son/parents/spouse/brother/sister with
Specified Disability from transfer. He has further argued that by no stretch
of imagination can the Appellant No. 2 be forced to join on transfer keeping
in view the policy issued by the Government of India and, therefore, the
order passed by the learned Single Judge deserves to be set aside.
8. Learned counsel for the Appellants has further argued that the RPWD
Act was enacted keeping in view the concept of care-givers for Persons with
Disabilities and therefore care-givers enjoy special privileges under the
RPWD Act. Therefore, as Appellant No. 2 is a caregiver to Appellant No.1,
he cannot be transferred out of Delhi in view of the provisions of RPWD
Act.
9. Learned counsel for the Appellants has vehemently argued that Public
Sector Banks are under an obligation to abide by the Office Memorandum
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dated 08.10.2018 issued by the DOPT and, therefore, the Appellant No. 2
cannot be forced to proceed to transfer to Gorakhpur and the order passed by
the learned Single Judge deserves to be set aside.
10. He further submits that the Appellant No. 2 enjoys immunity from
rotational transfer being a caregiver as her mother is suffering from 47%
Locomotive Disability i.e., above the Benchmark Disability as defined under
Section 2(r) of the Persons with Disability Act, 2016. Therefore, the
interlocutory order passed by the learned Single Judge deserves to be set
aside and the recommendations of the Chief Commissioner deserves to be
implemented.
11. He further argues that the transfer of the Appellant No. 2 is in
violation of Article 21 of the Constitution of India. The Appellant No. 1 has
been guaranteed a Constitutional right to enjoy her life with dignity which
would not be possible for her without her care-taker i.e., Appellant No. 2, if
they are separated on account of transfer of Appellant No. 2 to Gorakhpur.
12. It has also been argued by learned counsel for the Appellants that the
writ petition itself was not at all maintainable against the order passed by the
Chief Commissioner and the order passed by the learned Single Judge
deserves to be set aside.
13. Per Contra, learned counsel for the Respondent, has stated before this
Court that the Appellant, right from the year 1995, is continuously working
at Delhi except for a period of few years when he was transferred to Jaipur
on account of promotion. However, the fact remains that he has put in
almost his entire service career while working in Delhi and it has been stated
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that the Transfer Policy provides for rotational transfer and therefore,
Appellant No. 2 has been transferred keeping in view administrative
exigencies.
14. The Respondents have also stated that the Office Memorandum dated
08.10.2018 certainly exempts Government employees who are caregivers of
dependents with specified disability from rotational transfer, however, such
immunity is always subjected to administrative exigencies.
15. The Respondents further stated that the Chief Commissioner has no
jurisdiction to interfere in transfer matters and heavy reliance has been
placed upon a judgment delivered in the case of State Bank of India v.
National Commission for Scheduled Castes, 2016 SCC Online Del 5218 in
this regard.
16. Heard learned counsel for the parties at length and perused the record.
In the present case, the undisputed facts of the case reveal that the Appellant
No. 2 has been continuing his services with the Bank in Delhi since the year
1995. He was transferred out of Delhi to Jaipur only for a period of 4 years
in the year 2008, after which he was again transferred back to Delhi and is
continuing in Delhi till date.
17. It is an undisputed fact that the Appellant No. 1, who is the mother of
Appellant No. 2, and is having 47% locomotive disability, submitted an
application before the Chief Commissioner against the transfer order dated
21.04.2022 of Appellant No.2 which was a rotational transfer keeping in
view the administrative exigencies. Paragraphs 40, 41, 42 and 43 of the
Chief Commissioner's order reads as follows:
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""40. This Court cannot accept the 'after thought' argument of
the Respondent. Even if the disability certificate was issued
after the employee was transferred, it does not prove the fact
that the Complainant was not Divyangjan before the disability
certificate was issued. Case of the Complainant squarely falls
within the scope of DoPT O.M. No. 42011/3/2014, dated
06.06.2014 and 0.M. No. 42011/3/2014, dated 08.10.2018,
explained in detail in preceding paragraphs. The intention of
these guidelines is to provide a conducive environment to the
government employee who is serving as main caregiver of
divyang dependant. Even if the disability certificate is issued
after transfer of the employee, it proves that the employee's
mother is Divyangjan and requires care and attention.
41. Respondent also submitted in its written argument that the
employee lives along with his wife hence he is not the sole care
giver and his wife can take care of divyang mother. Attention of
the Respondent is attracted to DoPT OM No. 42011/3/2014.
This OM talks about the employee who is serving as 'main care
giver', it does not talk about 'sole care giver'. Furthermore, this
argument also needs to be rejected because if accepted it will
amount to a forceful division of a family.
42. This Court recommends that the Respondent shall cancel
the transfer of the employee namely Sri Devender Kumar from
Delhi to Gorakhpur. However, the Respondent is at liberty to
transfer the employee to any branch situated in Delhi/NCR so
that relevant CVC guidelines can be implemented and the
employee does not need to change his station and can take
care of his mother.
43. Respondent shall also file the Compliance Report of this
Recommendation Order within 3 months from the date of this
Recommendation failing which, this Court shall presume that
the Respondent has not implemented this Recommendation and
the matter shall be reported to the Parliament."
18. The aforesaid order reveals that the Commissioner has recommended
cancellation of the transfer of the employee, failing which the Commissioner
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has observed that the matter be reported to the Parliament.
19. This Court has carefully gone through the Office Memorandum dated
08.10.2018, and the relevant portion of the Office Memorandum dated
08.10.2018 reads as under:
"3. With the enactment of the Rights of Persons with
Disabilities Act, 2016 on April 17, 2017, the following
instructions are issued in supersession of the above-mentioned
OMs of even number dated June 6, 2014, November 17, 2014
and January 5, 2016 with regard to the eligibility for seeking
exemption from routine exercise of transfer/rotational
transfer:
(i) A Government employee who is a care-giver of
dependent
daughter/son/parents/spouse/brother/sister with
Specified Disability, as certified by the certifying
authority as a Person with Benchmark Disability
as defined under Section 2(r) of the Rights of
Persons with Disabilities Act, 2016 may be
exempted from the routine exercise of
transfer/rotational transfer subject to the
administrative constraints.
(ii) The term "Specified Disability" as defined in
the Schedule to the Rights of Persons with
Disabilities Act, 2016, covers (i) Locomotor
disability including leprosy cured person,
cerebral palsy, dwarfism, muscular dystrophy
and Acid attack victims (ii) Blindness (iii) Low-
vision (iv) Deaf (v) Hard of hearing (vi) Speech
and language disabilities (vii) Intellectual
disability including specific learning disabilities
and autism spectrum disorder (viii) Mental
illness (ix) Disability caused due to (a)
Neurological conditions such as Multiple
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sclerosis and Parkinson's disease (b) Blood
disorder- Haemophilia, Thalassemia and Sickle
cell disease and (x) Multiple disabilities (more
than one of the above specified disabilities)
including deaf blindness and any other category
of disabilities as may be notified by the Central
Government.
(iii) The term 'Specified Disability' as defined
herein is applicable as grounds only for the
purpose of seeking exemption from routine
transfer/ rotational transfer by a Government
employee, who is a care-giver of dependent
daughter/son/parents/spouse/brother/sister as
stated in Para 3(i) above."
20. The Office Memorandum certainly provides for exemption from
routine exercise of transfer/rotational transfer, however, the exemption is
subject to administrative constraints. In the considered opinion of this Court,
the learned Single Judge was justified in holding that the Office
Memorandum is directory in nature and an employer does have a right to
issue a transfer order keeping in view administrative constraints faced by it.
Therefore, the Impugned Order does not warrant any interference. The
learned Single Judge has also arrived at a conclusion that the transfer of an
employee is an incident of service and the Courts must maintain judicial
restraint in such transfers. Refer: Shilpi Bose (Mrs.) & Ors. vs. State of
Bihar & Ors., 1991 Supp. (2) SCC 659; Mohd. Masood Ahmad vs. State of
Uttar Pradesh & Ors., (2007) 8 SCC 150; State of Haryana vs. Kashmir
Singh & Anr., (2010) 13 SCC 306; and Major Amod Kumar vs. Union of
India, (2018) 18 SCC 478).
21. This Court has also gone through the judgment delivered in the case
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of Amarjeet Singh Dagar v. Union of India 2022: DHC:847-Division
Bench, 2022 SCC Online Del 694 and in light of the aforesaid judgment,
this Court is of the considered opinion that the transfer is certainly an
incident of service and the Courts should refrain from interfering in day-to-
day transfers issued by the Government or by the competent authority.
22. In the present case, the son of Appellant No. 1 is serving the Bank,
holding a transferrable post. He has been accommodated by the Bank, right
from 1995 till date at Delhi. It is not the case that Appellant No. 1 is a bed-
ridden person; on the contrary, Appellant No.1 is having locomotive
disability and can very well travel to Gorakhpur with her son. The learned
Single Judge has gone to the extent of providing all the facilities and
expenses enabling the Appellant No. 1 to go to Gorakhpur with her son, i.e.,
Appellant No. 2. It is pertinent to note that the Impugned Order is an
interlocutory order and, this Court, keeping in view the totality of the
circumstances, does not find any reason to interfere with the same. The
Impugned Order does not suffer from any illegality or perversity and,
therefore, no case for interference is made out. The LPA is, accordingly,
dismissed.
SATISH CHANDRA SHARMA, CJ
SANJEEV NARULA, J.
SEPTEMBER 13, 2023 N.Khanna LPA 632/2023 Page 11 of 11 Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:05.10.2023 16:58:28