Calcutta High Court (Appellete Side)
Dolgobinda Ghosh vs The Chairman on 16 April, 2008
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice S.P. Talukdar
W.P No. 1519 (W) of 2008
Dolgobinda Ghosh.
Vs.
The Chairman, State Bank of India & Ors.
For the Petitioner: Mr. L.C. Behani.
For the Respondents: Mr. S. K. Sinha,
Mr. S. Pal Chowdhury, Ms. Arpita Biswas.
Judgment on: 16.4.2008 S. P. Talukdar, J.: By filing the instant application under Article 226 of the Constitution, the writ petitioner challenged the Order dated 14.12.2007 by which it was communicated that the appropriate authority decided to transfer him to Murarai Branch as Special Assistant. He was relieved from Kamraghat branch by the self same letter.
The backdrop of the present case may briefly be stated as follows: -
The petitioner is a award staff of State Bank of India. He had been working in the post of Senior Assistant at Suri Branch till 16th of June, 2005. He was then transferred to Kamraghat Branch, Birbhum for a period of two years with the option of making his own choice for the next posting after a period of one year which would be duly recorded by the appropriate authority and implemented in due time subject to availability of vacancy. By virtue of Career Progression Scheme, he became Special Assistant while working at Kamraghat Branch. After completing one year of service, he prayed for repatriation to his original place of posting i.e., Suri Branch by letter dated 23rd June, 2006. It was duly forwarded by the Branch Manager, Kamraghat Branch to the Assistant Manager, State Bank of India, Region-II, Zonal Office Burdwan on 24th June, 2006. He submitted a representation on 12th December, 2007 apprehending redeployment to far distant place. The petitioner has his ailing daughter who is a final year student of MBBS course and her final examination would commence from 14th January, 2008. The petitioner applied for leave on 14th December, 2007 for the period from 15th December, 2007 to 31st December, 2007. Consequent upon his stand of the leave application on 14th December, 2007, he was slapped with a Transfer- cum-Release order being No.BM 19/95 dated 14th December, 2007 issued by the Branch Manager, Kamraghat. This was in utter disregard to the earlier assurance and ignoring the fact that there were two vacancies at Suri Branch arising out of retirement of two Senior Assistants. The Circular letter No.Cir Do/P & HRD/38/2006-2007 dated 15.2.2007 issued by the Chief General Manager, State Bank of India clearly stipulates by Clause 3 ( i ) that male employees above 55 years of age would be exempted from redeployment outside the center. The petitioner in a mischievous and malicious way was thus, sought to be redeployed just a few days before his attaining 55 years of age to Murarai Branch. Such order of transfer and release of the writ petitioner is in utter violation of Articles 14 and 16 of the Indian Constitution and such order was passed in a malafide and vindictive manner. The petitioner thus, sought for quashing of the said order dated 14.12.2007 and for direction upon the respondent authorities to transfer him to Suri Branch.
In response to this, the respondent Nos.3 to 5 filed an affidavit-in- opposition denying inter alia, all the material allegations made by the writ petitioner. It was claimed by the respondent authorities that the order of transfer was made in the interest of the administration and there could be no mala fide in it. Inviting attention of the court to annexure R-5 at page 130 to the affidavit-in-opposition, it was submitted that the writ petitioner was appointed as a Special Assistant with effect from 1st August, 2005 following the scheme for Career Progression within the same cadre. It was further stated that the administrative guideline for career progression inter alia, provides that the Senior Assistant appointed under the scheme can be transferred to any Branch/Office within the geographical limits of the zonal office etc. Similarly the said Assistants are also liable for transfer within the geographical limits of the zonal office. Referring to separate settlements dated 22nd July, 2003 with the Federation, it was claimed that the Bank may redeploy/transfer the workmen/staff depending upon items of work and work processes to meet the needs of handling new items of work and to meet deficit in staff complement identified by Bank. Such deployment for difficult places will be for two years and for other places, three to five years. There is provision that employees above 57 years of age would be exempted from redeployment/transfer. There was further understanding that the employees appointed as Senior Assistants will be liable for transfer at the discretion of the Bank to/from any Branch/Office within the zone. It was emphatically claimed that there could be no bias or malice on the part of the authorities in issuance of such order of transfer/release.
After hearing learned Counsel for the writ petitioner Mr. Behani, and learned Counsel Mr. Sinha for the respondent-authorities, it appears that the petitioner joined the respondent-bank on 9th March, 1977. He was initially posted at Debagram Agricultural Development Branch, district Nadia. He was there till 1979. From 1979 to 18th June, 2005, that is, for about 26 years, he was posted at Suri Branch. He became Senior Assistant with special pay in 2005 and continued to be posted in the Suri Branch in the district of Birbhum. He was then transferred to Kamraghat Branch on 16th June, 2005 under the redeployment/transfer policy. He joined there on 23rd June, 2005. After completion of 23 years of service on 1st August, 2005 he became Special Assistant. In view of such appointment as Special Assistant, he was required to be transferred under the scheme Career Progression to any Branch within the geographical area of the concerned zone. In the Murarai Branch of the State Bank of India, there is no Special Assistant. Naturally, the writ petitioner was transferred there to the said Branch by the correspondence dated 14th December, 2007 as referred to earlier. The petitioner was appointed as Special Assistant with effect from 1st August, 2005 by letter dated 12th August, 2005. He accepted the same by his letter dated 12th August, 2005. He could not be transferred at the material time. Subsequently, in view of the need of the Bank and its exigency, he was transferred to the said Murarai Branch. The dismissal of the writ application was thus, prayed for.
By filing an affidavit-in-reply, the writ petitioner sought to bring to the notice of this court that in utter disregard of the interim order which was passed in connection with the present writ application, the authority concerned followed up the purported transfer order dated 14.12.2007 with the correspondence dated 18.1.2008 indicating thereby that in pursuance of the said order dated 14.12.2007 the L.P.C. as well as other related papers relating to service of the petitioner were already sent to Murarai Branch.
It is the settled position of law that order of transfer of an employee should not ordinarily be interfered with unless it is in violation of statutory provision or it is clearly arbitrary or vitiated by malafide or infraction of any prescribed norm.
In the case of State Bank of India vs. Anjan Sanyal & Ors.,reported in (2001) 5 SCC 508, the Apex Court observed that unless mala fide, or prohibited by service rules, or passed by an incompetent authority, the order of transfer should not be lightly interfered with in exercise of the Court's discretionary jurisdiction. No doubt, the petitioner holding a transferable post has no vested right to remain posted at one place or the other. He is certainly liable to be transferred from one place to another if such transfer is in the interest of the administration and not in violation of service Rules. (Ref:-Shilpi Bose vs. State of Bihar, as reported in AIR 1991 SC 532; Union of India vs. S. L. Abbas, as reported in AIR 1993 SC 2444; Major General J. K. Bansal vs. Union of India & Ors., as reported (2005) 7 SCC 227.) It is well settled that transfer is an incidence of service and normally should not be interfered with by courts. In the case of Public Services Tribunal Bar Association vs. State of U.P. and Anr., as reported in (2003) 4 SCC 104, it was held that in an extreme and rare case where the order is passed mala fide or without following the procedure under the law, the employee can approach the High Court under Article 226 of the Constitution. In the present case, as it found from the materials available on record, the petitioner was admittedly posted at Suri Branch of the State Bank of India for an uninterrupted period of 26 years i.e, 1979 to 2005. It was only under the redeployment/transfer policy that he was shifted to Kamraghat Branch on 16th June, 2005. After becoming a Special Assistant, change following the scheme for Career Progression became necessary. He has been accordingly shifted to Murarai Branch. There is absolutely not an iota of material before this court so as to suggest that the authority acted with bias or in a mala fide manner. It is emphatic stand of the respondent-bank that there is no vacancy available at Suri Branch to accommodate the writ petitioner.
Considering all these aspects and in absence of any material whatsoever indicating mala fide or vindictiveness on the part of the respondent authority in transferring the petitioner from Kamarghat Branch to Murarai Branch, the petition stands dismissed.
In response to submission made on behalf of the petitioner, this court expects that the respondent-authority will certainly take appropriate action and pass necessary order so as to settle whatever is legally admissible to the writ petitioner. This direction has become necessary in view of the fact that the petitioner has been released with effect from 14.12.2007 and has reportedly not joined in the new place. In order to enable the respondent-authority to do so, the writ petitioner must submit a representation and must also make necessary application for regularization of the period of absence. The authority concerned upon receipt of the same must pass appropriate order and settle all legally admissible dues in favour of the writ petitioner. The entire process must be completed within a period of four weeks from the date of receipt of the representation. No order as to costs.
Xerox certified copy of this judgment, if applied for, be supplied to the parties upon due compliance of the legal formalities.
(S.P.Talukdar, J.)