Madras High Court
Usha Bharath vs Uco Bank on 7 February, 2013
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.02.2013 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR W.P.No.25066 of 2007 & M.P.No.2 of 2007 Usha Bharath .. Petitioner -Vs- 1.UCO Bank rep. by its Deputy General Manager Head Office 2 Personnel Adm & IRM Department 3-4, DD Block, Sector-I Salt Lake, Kolkata 700 064 2.Deputy General Manager UCO Bank Regional Office 169, Thambu Chetty Street Chennai 600 001 3.Sujatha K.Kalathi C/o.UCO Bank Regional Office Thiruvananthapuram, Kerala .. Respondents Writ petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorari, after calling for the records from the 1st and 2nd respondents relating to the order issued by the 1st respondent bearing Ref.No.PER/TPC/COM/2007-08/137 dated 11.07.2007 served by the 2nd respondent along with his letter dated 12.07.2007 bearing Ref.No.Transfer Order No.IZ/33/2007 transferring the writ petitioner from Chennai to Bangalore and quash the same. For Petitioner : Mr.N.G.R.Prasad for M/s.Row and Reddy For Respondents : Mr.Srinath Sridevan for R1 and R2 No appearance for R3 ----- ORDER
The writ petitioner, who was initially appointed as a clerk in Bhilai Branch of UCO Bank in Madhya Pradesh, was transferred to its Chennai Regional office on her request in 1992 and was posted in the Sowcarpet branch of the first respondent bank. On her promotion to the Junior Management Scale I officer in 2001, she was posted to Shastri Nagar branch in Chennai. Her husband is also employed in another nationalised bank. Since she was of the view that moving to specialist cadre would give her the benefit of not being transferred outside the State till she would reach Scale III, she opted for the specialist cadre in May 2002 and she was posted in the Chennai Regional office of the first respondent bank as Specialist Officer in Hindi. In July 2006, she was promoted to Middle Management Grade Scale II. As such, she was served with a transfer order dated 11.07.2007 which is impugned in this writ petition, transferring her from the Regional Office, Chennai to Regional Office, Bengaluru.
2. Contending that the said transfer is violative of the transfer policy published in 2001, the writ petitioner has invoked the extraordinary jurisdiction of this Court for the issuance of a writ of certiorari to call for the records of the first respondent relating to the impugned order of transfer dated 11.07.2007 and to quash the same.
3. Since Sujatha K.Kalathi (R3) has been transferred from Trivendrum to Chennai Regional office in the place of the writ petitioner, she has also been made a party respondent. All the respondents are represented by counsel. The first and the second respondents alone have chosen to file counter affidavit.
4. The main plea of defence taken by them in the counter affidavit is that as per regulation 47 of the UCO Bank Officers Service Regulations 1979, every officer is liable for transfer to any office or any branch of the bank or to any place in India and hence, the present writ petition challenging the order of transfer is not maintainable in view of the said provision.
5. The next plea of defence taken by the respondents 1 and 2 is that though broad guidelines for implementation of regulation 47 has been made in the transfer policy declared in 2001 and Clause 17 provides a restriction on the transfer of lady officer upto Scale II from one region to another region outside the state, the said clause is intended to apply to the general category officers and the same is not applicable to specialist cadre officers and on that ground also the challenge made to the order of transfer issued in the impugned order is liable to be rejected as unsustainable.
6. Mr.N.G.R.Prasad, learned counsel for the petitioner, adverting to the averments found in the affidavit filed in support of the writ petition, impugned order and the revised transfer policy of officers dated 02.02.2001, would contend that clause 17 of the revised transfer policy provides a clear embargo on the bank to transfer lady officers upto Scale II outside the state in which such officer is employed, though the said rule makes a lady officer upto the said scale to be transferred from one region to another and that in view of the clear direction found in the said clause 17, the order of transfer impugned in this writ petition should be held malafide. In support of his contention, learned counsel for the petitioner would submit that only in order to accommodate an officer, who was sought to be transferred from Trivendrum to Chennai, the petitioner was disturbed and transferred to Bengaluru much against the principle embodied in Clause 17 of the above said transfer policy.
7. It is the further contention made by the learned counsel for the petitioner that when broad guidelines have been framed and published to give effect to the policy embodied in Regulation 47 of the UCO Bank Officers Service Regulations 1979, the bank itself cannot be allowed to contend that they are not bound by such revised transfer policy, unless any of the clauses of transfer policy or any of the regulation provides a clear exception giving power to the bank to effect transfer in case of administrative exigencies, even though that may not be in tune with the published transfer policy.
8. The learned counsel for the petitioner has also produced a copy of the letter issued by the Regional office of the UCO Bank, Chennai to the General Manager, P & RIM, UCO Bank Head Office, Kolkata, confirming the issuance of transfer order to the writ petitioner transferring her out of the state. The said letter itself refers to the circular of the head office in CHO/POS/1/2001 dated 02.02.2001, which is none other than the circular issued to all the branches and officers annexing the revised transfer policy for officers. The same will show that the transfer was sought to be effected only under the above said transfer policy and not with a view that the transfer policy will not be applicable to the specialist officers.
9. As an answer to the above said contention of the learned counsel for the writ petitioner, Mr.Srinath Sridevan, learned counsel for Respondents 1 and 2, drawing the attention of this Court to clause 12 and 17 of the revised transfer policy, would contend that a harmonious construction of Clauses 12 and 17 of the revised transfer policy will show that an exception regarding Specialist Officers should be read into Clause 17 of the transfer policy and that hence clause 17 should be interpreted as a clause inapplicable to officers on specialist assignment. In support of his contention, learned counsel for the respondents 1 and 2 would also contend that since the bank was of the view that the writ petitioner being a specialist officer in Hindi, her services would be more useful in Bengaluru, where there are more Hindi speaking people, whereas the need for retention of such officer in Chennai would be comparatively less.
10. Pointing out the fact that the specialist officers working in specialised assignment are excluded from the applicability of clause 12, learned counsel for the respondents 1 and 2 also made an attempt to contend that officers working on specialist assignment were treated differently under the transfer policy. Clause 12 of the transfer policy reads as follows:
"12.Officers in all scales upto Scale-III except officers working in specialist assignment should not be transferred from one Administrative Office to another for consecutive terms."
11. Per contra, learned counsel for the petitioner drew the attention of the Court to Clause 23 of the Transfer Policy in support of his contention that the revised transfer policy is applicable to the officers on specialist assignments also. Clause 23 reads as follows:
"23. Officers working on Specialist Assignments: Placement of all officers upto Scale III doing specialist assignments and who were earlier treated as specialist will be governed by this transfer policy. However, their placements and utilisation may be according to Bank's exigencies. "
12. This Court paid its anxious consideration to the above said rival contentions made on both sides.
13. Upon such consideration, this Court is of the considered view that the contentions raised on behalf of the petitioner are sound and tenable, whereas the contentions raised on behalf of the respondents 1 and 2 have to be discountenanced. Of course, it is true that Regulation 47 of the UCO Bank Officers Service Regulation, 1979 makes it clear that every officer of the bank is liable to be transferred to any office or branch of the bank or to any other place in India. The same enunciates the basic principle embodying a condition that every officer is liable to be transferred and posted anywhere in India. But the revised transfer policy of officers made on 02.02.2001 contains detailed rules framed under the regulations to give effect to the Regulations. When detailed clauses are made in the rules as to how the general policy of transfers are to be implemented in action, we cannot simply give a go by to such clause holding that they are only broad guidelines which shall not have a binding effect. If the contention of the respondents 1 and 2, that the revised transfer policy of officers will not apply to Specialist Officers is accepted, the very policy which was framed on agreement between the management and the officers' associations and published, will be a mere dead letter on paper. Hence, this Court is constrained to hold that the first part of the contention raised on behalf of the respondents 1 and 2 deserves discountenance.
14. A reading of both clause 23 of the Revised Transfer Policy and the letter dated 02.02.2001 referred to above, will show that the officers in specialist assignment are also governed by the transfer policy. Clause 12 deals with the transfer of an officer working in one administrative office to another office and it provides an embargo for transferring such officer from one administrative office to another administrative office for a consecutive term. The reasons being that an officer in the administrative office should also get field training and the very same set of officers should not be allowed to continue in the administrative office for consecutive terms which would be detrimental to the fair administration of the bank. Only in the said clause prohibiting transfer of officers from one administrative office to another administrative office for consecutive terms, the officers working in the specialist assignment are given exception because the specialist posts would normally be available in the administrative offices. The post of Hindi Officer is meant for helping the translation of the circulars and other orders issued by the Head office which would be in Hindi, so as to make it understandable by the Non-Hindi speaking staff members of the bank and customers of the bank in a state like Tamil Nadu. Therefore, the contention of the learned counsel for the respondents 1 and 2, that need of service of a specialist Hindi Officer in Tamil Nadu is less than such a need in another state wherein more people speak Hindi, has to be rejected as untenable. The very fact that specific provision has been made in clause 23 of the Transfer policy making the revised policy applicable to the officers doing specialised assignment also and that a specific exception was provided in respect of officers working in specialised assignment under clause 12 alone and such an exception is not provided specifically in Clause 17, which is intended to protect the interest of lady officers and spouse officers, will make it clear that the policy did not contemplate such an exception to the Specialist officers from the purview of clause 17 of the revised transfer policy. Clause 17 of the revised transfer policy is generic and crystal clear that it applies to all the lady officers upto Scale II. For better appreciation, clause 17 of the transfer policy is also extracted hereunder:
"17. Lady Officer/Spouse Transfer Lady officers upto Scale II shall be transferred from one region to another but they shall not be transferred outside the state. As far as possible and within the constraints of Administrative feasibility, husband and wife, both of whom are employed in the Bank, will be posted at the same station (but not at the same branch or office). The spouse who is senior in terms of cadre/grade or position in the seniority list would be posted as per the requirements of the Bank in conformity with the policy and norms of transfer. The Bank will consider favourably the request of the other spouse for a transfer to the station or to the nearest branch/office where the senior spouse is posted. Such request for transfer when acceded to would not be treated as on request. However, the guidelines under Regulations 17 of the Officers' Service Regulations issued by the Government in regard to service by the officers in Scale-I at a rural branch and by officers in Scale-II at rural/semi urban branch shall applicable to lady officers also, notwithstanding the special provisions contained in this clause. "
Harmonious construction of Clause 12, 17 and 23, will not allow the exception provided in Clause 12 to be read into clause 17. For the said reasons, this Court comes to the conclusion that the second contention raised on behalf of the respondents 1 and 2 also deserves discountenance. The impugned order of transfer, being one in violation of Clause 17 of the transfer policy, is to be termed arbitrary and malafide and hence, liable to be quashed.
15. In view of the submission made by the learned counsel for the respondents 1 and 2, this Court also makes an observation that the above said observations are made in respect of the impugned transfer order and it shall have nothing to do with the future order which may be passed in accordance with the new transfer policy, if any, that may come into force.
In the result, this writ petition is allowed and the order of the 1st respondent bearing Ref.No.PER/TPC/COM/2007-08/137 dated 11.07.2007 served by the 2nd respondent along with his letter dated 12.07.2007 bearing Ref.No.Transfer Order No.IZ/33/2007 transferring the writ petitioner from Chennai to Bangalore is quashed. No costs. Consequently, the connected miscellaneous petition is closed.
gpa To
1.The Deputy General Manager UCO Bank, Head Office 2 Personnel Adm & IRM Department 3-4, DD Block, Sector-I Salt Lake, Kolkata 700 064
2.The Deputy General Manager UCO Bank Regional Office 169, Thambu Chetty Street Chennai 600 001