Madhya Pradesh High Court
Chandragupt Saxena vs Bank Of Boroda on 1 October, 2020
Author: Rajeev Kumar Dubey
Bench: Sanjay Yadav, Rajeev Kumar Dubey
-:1:-
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
(DIVISION BENCH)
Writ Appeal No.861/2020
Chandragupt Saxena
Vs.
Bank of Baroda & Others
=================
Shri Chandragupt Saxena, appellant in person.
Shri Ashish Shroti, learned counsel for the respondent Nos. 1 &
2.
PRESENT:
HON'BLE SHRI JUSTICE SANJAY YADAV, ACTING CHIEF JUSTICE
HON'BLE SHRI JUSTICE RAJEEV KUMAR DUBEY
==================================
JUDGMENT
(01/10/2020) Per :- Rajeev Kumar Dubey, J This Writ Appeal has been preferred under Section 2(1) of Madhya Pradesh Uchcha Nyayalaya (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005, against the order dated 14/08/2020 passed by the learned Single Judge in Writ Petition No.7565/2020 whereby prayer of the appellant to set-aside his transfer order dated 14/02/2020 was rejected.
2. Brief facts of the case which are relevant to the disposal of this Writ Appeal are that the appellant who was posted as Joint Manager at Satna Branch of the Bank of Baroda was transferred by order dated 14/02/2020 from Satna to Bank of Baroda, Branch Chhindwara. Appellant challenged that transfer order by way of filing Signature Not Verified SAN Writ Petition No.7565/2020, on the ground that since the year 2016 the Digitally signed by ANURAG SONI Date: 2020.10.08 16:01:58 IST -:2:- appellant was subjected to frequent transfers. Appellant's wife is presently pregnant, his daughter is studying in Class IV and the aged mother is unwell, the frequent transfers would uproot his family. In July, 2019, the appellant met with a motor vehicle accident in which he was badly injured, due to which he became disable and suffered 42% disability. He cannot walk properly without a stick. According to Circular dated 15.02.1988 of the Ministry of Finance, any disabled officer/employee cannot be transferred from his original place of posting. It is also asserted that on 31.01.2020, the employees association in the Bank proclaimed a strike. The appellant did not participate in the said strike. One officer Shri Devesh Sinha participated in the strike and during the strike, he came inside the Bank and manhandled the appellant. Due to which he sustained injuries. He lodged a police report of that incident. The Bank did not take any action against Shri Sinha and transferred the appellant who had performed his duties on the date of the strike. The transfer order is arbitrary and also actuated with malafide. So his transfer order needs to be interfered with.
3. Respondents in their reply denied the allegations made by the appellant and averred that appellant is a senior officer and history of transfers do not show that the appellant is subjected to frequent transfers. The appellant cannot claim immunity from the transfer on the basis of personal inconvenience. The circular dated 15/02/1988 has no application in the present case. On 31/01/2020 there was a quarrel between the appellant and Shri Devesh Sinha. An enquiry of the incident was conducted by a senior officer on the basis of which, in order to maintain discipline in the Branch, the appellant was transferred and after a while Shri Devesh Sinha was also transferred. It is the prerogative of the employer to maintain discipline and transfer the employees from one Branch to another Branch. Circular dated Signature Not Verified SAN 15/02/1988 does not help the applicant in such cases. Even the Digitally signed by ANURAG SONI Date: 2020.10.08 16:01:58 IST -:3:- disability certificate was obtained by the appellant after issuance of the transfer order and hence respondents pray for rejection of petition.
4. Vide order dated 14/08/2020 learned Single Judge rejected the appellant's prayer holding that appellant is a senior officer /Manager in the Bank. The continuous posting of a superior and responsible officer at one station is not conducive to good administration. The appellant does not deserve protection from frequent transfers in the given situation. Even otherwise, the appellant was not subjected to frequent transfers. The Ministry of Finance circular dated 15/02/1988 regarding transfer of physically handicapped employees is directory in nature. In administrative exigency, a handicapped employee can be transferred. The respondent Bank transferred appellant to maintain the discipline. There is no fault in the action of the respondent. In this regard learned Single Judge also placed reliance on the Apex Court Judgements passed in B.Varadha Rao Vs State of Karnataka and others, 1986 (4) SCC 131 & State of MP and another Vs S.S. Kaurav and others, 1995(3) SCC 270. Being aggrieved from that order, the appellant filed this Writ Appeal.
5. Appellant has assailed the impugned order contending that since the year 2016 the appellant was subjected to frequent transfers as the impugned transfer was the appellant's fourth transfer within a short span of time, which amounts to frequent transfers. The finding arrived by the learned Single Judge that the impugned transfer order is not a frequent transfer, is not correct. It is further submitted that the respondents have taken a plea that the transfer order of the appellant has been issued in order to maintain discipline, but since the appellant is a disabled person, therefore, as per circular dated 15/02/1988 and clarifications issued thereafter the appellant who is the disabled person should be given certain relaxations in all given situations. The respondents have not appreciated the effect of the guidelines. The Signature Not Verified SAN appellant is a disabled person, so he cannot be transferred to a far away Digitally signed by ANURAG SONI Date: 2020.10.08 16:01:58 IST -:4:- place from his original place of posting. According to later part of the said circular when the transfer of a physically handicapped employee becomes inevitable on promotion to a place other than his original place of appointment due to non-availability of vacancy, it should be ensured that such employees are kept nearest to their original place of posting and in any case are not transferred to far off/remote places. The prayer of the appellant's was that if his transfer can not be cancelled, at least he should be posted in a nearby place of his original place of appointment, but the learned Single Judge did not consider this plea. Appellant further submitted that before the impugned transfer appellant had already been transferred by the authority to another branch from the branch where appellant was posted at the time of alleged incident, so issuance of the new order was not a necessity. The respondents have also failed to consider the fact that if the transfer of the appellant was necessary, still it should have been ensured that appellant was transferred nearest to his original place of posting and in any case was not transferred to far off/remote places. The learned Single Judge has also not appraised the present transfer order in that context. The enquiry report on the basis of which appellant was transferred was conducted to safeguard the assaulters, so it could not be acted upon. On the basis of the aforesaid submissions, it is prayed that the impugned order dated 14/08/2020 passed by learned Single Judge in Writ Petition No.7565/2020 be quashed in the interest of justice and the appellant be allowed to work at the same place i.e. Satna.
6. This court has gone through the record and the arguments put forth by the appellant and the learned counsel for the respondents. Regarding interference of the Court in the transfer matters, the Hon'ble Apex Court in the case of B. Varadha Rao Vs. State of Karnataka and others, AIR 1986 S.C. 1955, observed as under:-
"It is well understood that transfer of a Government servant Signature Not Verified who is appointed to a particular cadre of transferable posts from one place to another is an ordinary incident of service SAN Digitally signed by ANURAG SONI Date: 2020.10.08 16:01:58 IST -:5:- and therefore does not result in any alteration of any of the conditions of service to his disadvantage. That a government servant is liable to be transferred to a similar post in the same cadre is a normal feature and incident of Government service and no Government servant can claim to remain in a particular place or in a particular post unless, of course, his appointment itself is to a specified, non- transferable post. As the learned Judges rightly observe:
The norms enunciated by Government for the guidance of its officers in the matter of regulating transfers are more in the nature of guidelines to the officers who order transfers in the exigencies of administration than vesting of any immunity from transfer in the Government servants."
7. In the case of Mrs. Shilpi Bose and others Vs. State of Bihar and others, AIR 1991 S.C. 532, the Hon'ble Apex Court observed as under:-
"The 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. 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 the 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."
8. In the case of Union of India and others Vs. S.L. Abbas, AIR 1993 S.C. 2444, the Hon'ble Supreme Court held as under:-
"Guidelines issued by Government - Transfer of Government employee - Order made without following guidelines - cannot be interfered with by Courts unless it is vitiated by mala fides or is made in violation of statutory provision. While ordering the transfer of Government employee, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the Signature Not Verified subject, but the said guidelines do not confer upon the Government employee a legally enforceable right. Who SAN Digitally signed by ANURAG SONI Date: 2020.10.08 16:01:58 IST -:6:- should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it."
9. In the case of State of M.P. Anr. Vs. S.S. Kourav & Others (1995) 3 SCC 270 the Hon'ble Apex Court held as under:-
"The Courts or Tribunals are not appellate forums to decide on transfers of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the courts or tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous consideration without any factual background foundation. In this case we have seen that on the administrative grounds the transfer orders came to be issued. Therefore, we cannot go into the expediency of posting an officer at a particular place"
10. The Hon'ble Supreme Court in the case of National Hydroelectric Power Corporation Ltd. Vs. Shri Bhagwan & Others, (2001) 8 SCC 574 held as under ;-
"No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place 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 of power or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the management, as against such orders passed in the interest of administrative exigencies of the service concerned."
11. In the case of State of UP and others Vs. Gobardhan Lal (2004) 11 SCC 402, Hon'ble Apex Court has held as under:-
Signature Not Verified SAN Digitally signed by ANURAG SONI Date: 2020.10.08 16:01:58 IST -:7:-"7. 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 violative 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.
8. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the courts or tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that courts or tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer."Signature Not Verified SAN Digitally signed by ANURAG SONI Date: 2020.10.08 16:01:58 IST -:8:-
12. In the case of Union of India Vs. Janardhan Debanalth, 2004 (4) SCC 245 Hon'ble Apex Court held as under :-
".........For the purposes of effecting a transfer, the question of holding an enquiry to find out whether there was misbehaviour or conduct unbecoming of an employee is unnecessary and what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of and if the requirement, as submitted by the respondents, of holding an elaborate enquiry is to be insisted upon the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated."
13. In the light of above mentioned pronouncements of the Hon'ble Apex Court, it is thus well settled that Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to the other is an incident of service. No Government servant or employee of Public Undertaking has legal right for being posted at any particular place. It is the employer who will decide when and where a public servant could be transferred. Transfer guidelines are only guidelines and are not in the nature of statutory rules. Even if the transfer is in violation of any such guidelines, the Court would not ordinarily interfere unless the transfer is mala fide or in violation of any statutory rules. Allegations of mala fides when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject, the said guidelines however does not confer upon the Government employee a legally enforceable right.
14. Therefore, interference in the transfer cases is warranted only if the transfer orders are issued by an incompetent authority or the transfer orders are established to be based on mala fides. Normally, Signature Not Verified Courts or Tribunals should not interfere with the transfer orders as a SAN Digitally signed by ANURAG SONI Date: 2020.10.08 16:01:58 IST -:9:- matter of routine, as though they were the appellate authorities substituting their own decision for that of the management, as against such orders passed in the interest of administrative exigencies of the service concerned.
15. As mentioned by the appellant in Para-2 of his Writ Appeal earlier appellant worked with the Vijaya Bank and in the year 2016-17 appellant was posted in Gujarat from where he was transferred to Nagpur on 13/07/2019 and thereafter on 03/05/2019 from Nagpur to Satna, M.P. as per transfer policy of erstwhile Vijaya Bank, which shows that the transfer of the appellant from Nagpur to Satna on 03/05/2019 was done according to transfer policy and he was transferred to his home State i.e. Madhya Pradesh. Thereafter, Vijaya Bank which has now merged with Bank of Baroda and appellant for the first time as an employee of Bank of Baroda was transferred by impugned transfer order from Satna to Chhindwara on administrative grounds. His daughter has been studying at Rewa since year 2018 (Annexure P-24), while appellant was transferred from Nagpur to Satna on 13/05/2019. It is not the case of appellant that his wife is also in any service. So it can not be said that appellant is subjected to frequent transfers and due to which his family will be uprooted.
16. It is apparent from the record that on 31/01/2020 in the bank there was some quarrel occurred between the appellant and Shri Devesh Sinha the then Branch Manager of the bank. Respondents clearly stated that on receiving the information of the incident an enquiry of the incident was conducted by a senior officer on the basis of which, in order to maintain discipline in the branch, the appellant was transferred and after a while, Shri Sinha was also transferred. The action taken by the Bank authority on the basis of the inquiry report and transferred both the employees appellant and Shri Devesh Sinha to maintain the discipline. So it can not be said that the transfer order is Signature Not Verified SAN arbitrary or passed with malafide intention.
Digitally signed by ANURAG SONI Date: 2020.10.08 16:01:58 IST -:10:-17. However appellant took the plea that in the incident appellant was beaten by Shri Devesh Sinha. In the incident the appellant sustained injuries. The report given by Shri Rajesh is not correct so it can not be acted upon. Appellant did not mention in his petition that Mr. Rajesh has any personal animosity with appellant or has any other reason to give a wrong report. He conducted the inquiry on the same day i.e. on the date of incident and recorded the statement of the bank employees present in the branch on the date of incident and gave the report on the same date. Even if there is certain complaint against an employee without holding any enquiry the transfer of such employee can be made in the public interest as well as in administrative exigency. For the purposes of effecting a transfer, the question of holding any enquiry to find out whether there was misbehaviour or conduct unbecoming of an employee is unnecessary and what is needed is the prima facie satisfaction of the authority concerned on the complainants as held by the Apex Court in the case of Janardhan Debanalth (supra).
18. Appellant is not the person who entered into the service as a disabled candidate. The only contention of appellant is that in the month of July 2019, he met with an accident and due to the injuries sustained in that accident, he became disabled. In this regard the appellant also filed a disability certificate (Annexure P-7). From the perusal of that certificate it is clear that appellant got that certificate prepared on 22/02/2020, while Bank authority passed the transfer order on 14/01/2020.
19. Even the Ministry of Finance circular dated 15/02/1988 regarding transfer of physically handicapped employees is directory in nature. As discussed above, Transfer guidelines are only guidelines and are not in the nature of statutory rules. Even if the transfer is in violation of any such guidelines, the Court would not ordinarily Signature Not Verified SAN interfere unless the transfer is malafide or in violation of any statutory Digitally signed by ANURAG SONI Date: 2020.10.08 16:01:58 IST -:11:- rules. In an administrative exigency, a handicapped employee can be transferred. The respondent Bank transferred appellant to maintain the discipline in the branch on administrative ground.
20. The appellant has not stated that the authority which made the transfer was not competent. The appellant though pleaded, but failed to establish that the authority had passed the transfer order with a mala fide intention. The transfer of the appellant has been made on administrative grounds. Hence transfer is not assailable. In the considered opinion of this Court, the learned Single Judge while passing the order dated 14/08/2020 passed in W.P. No.7565/2020 did not commit any error in rejecting the appellant's petition.
21. Accordingly, the Writ Appeal being devoid of merit is hereby dismissed.
(Sanjay Yadav) (Rajeev Kumar Dubey)
Acting Chief Justice Judge
as/-/(ra)
Signature Not Verified
SAN
Digitally signed by ANURAG SONI
Date: 2020.10.08 16:01:58 IST