Karnataka High Court
Vijaya Bank Officers Congress And Ors. vs Vijaya Bank on 29 July, 1992
Equivalent citations: 1992(4)KARLJ700, (1993)IILLJ28KANT
JUDGMENT
1. It is well established principle of law that Courts shall not interfere with the orders pertaining to transfers of officials or officers unless it is shown that the transfers made are with mala fide intentions, as such transfers are administrative in nature and any such interference with the administrative orders of transfer would create confusion in matters of administration. Unmindful of the above position, the petitioners who are officers of the respondent, Vijaya Bank, have filed these petitions challenging the latest policy of the bank issued as at Annexure 'F' dated December 24, 1991, which is a circular relating to revised transfer policy for officer employees up to MMG Scale III of the bank and paragraph 11.4 reads as follows :
"The central office-bearers of the registered trade union of officer employees recognised by the bank will be placed in the center where the head office of the bank is situate and they are exempted from transfers during their tenure as such. Further exemption is limited to only six such central office- bearers and available so long as the recognition granted by the bank is in force."
2. Pursuant to Annexure 'F', respondent-bank made transfer orders as at Annexures 'G' and 'H' dated March 16, 1992, and April 13, 1992, respectively, whereby petitioners Nos. 3 to 5 came to be transferred, in that the third petitioner working at Udupi has been transferred to Delhi, the fourth petitioner working in working in Bangalore has been transferred to Ahmedabad, and the fifth petitioner working in Bangalore has been transferred to Delhi. The second petitioner has joined his friends, petitioners Nos. 3 to 5 as he is Secretary of the Vijaya Bank Officers' Congress (Regd.) to espouse the cause of other office bearers of the first union.
3. It is not in dispute that all the petitioners, viz., petitioners Nos. 2 to 4, are the office bearers of the first petitioner's Congress. The second petitioner is the General Secretary, petitioners Nos. 3 and 4 are the Organising Secretaries of the above Congress. The respondent, Vijaya Bank, has got three unions. The respondent, Vijaya Bank, is a nationalised bank, thus, under Article 12 of the Constitution, it is an instrumentality of the State. The respondent bank has its head office in Bangalore and branches all over India. It is submitted that the said bank has a strength of nearly 25,000 officials and 4,000 officers. The bank has three unions, viz., (1) All India Vijaya Bank Officers' Association which has a strength of 61.08 per cent. of the total number of officer-employees (hereinafter referred to as" the Association"), (2) Vijaya Bank Officers' Union which has a strength of 17.75 percent. (hereinafter referred to as "the union") and (3) Vijaya Bank Officers' Congress (Regd.) (hereinafter referred to as "the Congress"), which has a strength of 15.84 per cent. The first union has been treated as a recognized union. All the three unions have their head offices in Bangalore. Petitioners Nos. 2 to 5 are the offices-bearers of the third union which is petitioner No. 1. The conditions which were prevailing regarding transfers of either officials or office bearers were as per Annexures 'D' and 'E'. The relevant portion of Annexure 'D' is extracted hereunder :
"A personnel sub-committee of the council of executives has been created to meet every Saturday to go into all urgent and important personnel matters that are pending in the bank and also to have a dialogue across the table with the leading representatives of the various unions. A policy decision has been taken that five leading office-bearers of each of the unions having All-India status will be posted at the bank's headquarters so as to be easily accessible for such dialogues from time to time. Nevertheless, the unions continue to press their characters of demands on the administration, and in particular, their demand of the reinstatement of their erst-while active members and/or their postings at the station of their choice. This the management cannot agree to, as each one of such cases has to be dealt with on its own merits by the concerned authorities in accordance with the established procedures of the bank."
Annexure 'E' dated May 19, 1981, held that the policy evolved at Annexure 'D' has been discontinued with immediate effect as while reviewing the policy, it was felt that continuance of such a policy would result in serious administrative inconvenience to the bank and opined that transfers already made would stand. In view of withdrawing of policy evolved at Annexure 'D', a new policy of transfer known as revised transfer policy came to be evolved and published in the form of circular as at Annexure 'F'. The relevant portion reads as follows :
"Keeping in view the magnitude of the problem as explained above, it became imperative to review the existing transfer policy and to evolve a revised comprehensive transfer policy. Accordingly, a revised comprehensive transfer policy for officer-employees up to MMG. Scale III has been evolved after discussions with the All India Vijaya Bank Officers' Association, taking into consideration the changed circumstances, present and future business needs of the bank and also the aspirations of officer employees. The revised transfer policy for officer-employees upto MMG. Scale III which comes into force with immediate effect is enclosed as Annexure 'A'."
The objectives and guidelines of transfer and other guidelines to effect transfer are given at Annexure 'F' which are extracted hereunder :
"The main objective of periodical rotation of officers is to match the business requirement of the bank and human resources development. However, the problems of relocation incidental to mobility will also be taken into consideration with human relations approach."
3.0.0. Definitions :
For the purpose of this policy, unless there is anything repugnant to the subject or context -
3.1.0. Transfer :
"transfer" means movement from one centre to another.
3.2.0. Posting :
"posting" means movement from one branch/office/department to another branch/office/department within the same centre.
3.5.0. Tenure :
"tenure" means active service in :
(a) North 3 years
(b) North-Eastern Region 2 years
(c) Disturbed areas 2 years
(d) Hardship branches 2 years
(e) Inter-State 4 years At paragraph 4.0.0. norms for transfers are prescribed, which read as follows :
"4.0.0. Norms for transfers :
Subject to regulation 47 of the Vijaya Bank (Officers') Service Regulations, 1982, the following norms are prescribed which reads as follows :
"Transferability"
47. Every officers is liable for transfer to any office or branch of the bank or to any place in India.
4.0.0. Norms for transfers :
Subject to regulation 47 of the Vijaya Bank (Officers') Service Regulations, 1982, the following norms are laid down :
4.1.0. Periodicity :
Generally officers are liable for transfer/posting only after completion of one tenure. However, this limit of one tenure does not apply in the case of :
(a) transfer/posting on promotion,
(b) South to North transfer and inter-State transfer,
(c) rural/semi urban posting,
(d) extreme compassionate grounds,
(e) administrative exigencies.
Further, no officer shall be retained in same branch/office beyond five years in the case of branch manager and six years in the case of others and in the same centre beyond ten years for all officers.
South to North :
Every officer belonging to South has to serve in the branches/offices located in North at least one tenure continuously during his/her entire period of service in the bank as an officer, save officers temporarily exempted during the period of such exemption. The service rendered in the above said branches/offices in clerical/sub-staff cadre shall not be taken into account.
4.2.1. Normally vacancies in North will be filled by posting/transfer of officers in the following order :
(i) Directly recruited officers through B.S.R.B.
(ii) Officers who have not completed their North tenure.
(iii) Officers promoted from clerical cadre i.e., on promotion from clerical cadre, they will be transferred directly to North during general transfers.
(iv) Officers on promotion to MMG. Scale III irrespective of the fact whether they have already completed North or not and officers on promotion to MMG. Scale II who have completed North tenure of less than five years or North-Eastern Region/disturbs areas tenure of less than three years in North-Eastern Region/disturbed areas are required to serve one tenure continuously in one of the branches/offices located in South other than his/her home State on promotion provided he/she has not completed inter-State tenure earlier.
Note : In the case of officers in JMG. Scale I and MMG. Scale II who are presently serving in North or North-Eastern Region/disturbed areas, if they get promoted to MMG. Scale II or MMG. Scale III while serving in North or North-Eastern Region/disturbed areas, they are required to continue their stay in North/North-Eastern Region/disturbed areas until completion of five/three years, as the case may be.
4.3.0. North to South :
4.3.1. Officers belonging to South who are working in North are eligible to be transferred back to South on completion of their North tenure.
4.3.2. Officers who opt for extending their period of stay beyond one tenure up to five years in North or three years in North-Eastern Region/disturbed areas will not be required to serve in North again even on promotion to higher scale.
4.4.0. Inter-State (South) :
4.4.1. Every officer belonging to South is required to serve at least one tenure continuously as officer in one of the branches/offices located in South other than his/her home State in the following order :
(a) Officers in JMG. Scale I who have completed more than five years in North are required to serve one tenure continuously in one of the branches/offices located in South other than his/her home State on promotion to MMG. Scale II provided he/she has not completed inter - State tenure earlier.
(d) Every officer belonging to South who has not completed at least one tenure continuously as officer in one of the branches/officers located in South other than his/her home State depending upon the requirements of the bank in different grades/scales in addition to North tenure based on his/her seniority of stay in the home State.
However, those officers in JMG. Scale I who have completed seven years or more in North are exempted from inter State tenure.
4.5.0. Inter State (North) :
Every officer belonging to North is required to serve one tenure as an officer in one of the branches/offices located in North other than his/her home State depending upon the requirement of the bank besides one tenure on promotion and one additional tenure if need be. However, such additional tenure need be served only after completion of five years or more than in the home State.
4.6.0. Pre-retirement Transfer :
Every officer who has only five years or less period of service left before superannuation may request for transfer as preparatory to retirement. As far as possible such cases may be considered to their place of choice on the basis of age subject to availability of vacancy, i.e., the order in age will be given preference.
4.7.0. Exercising Option :
Officers eligible for transfer to South from North and those officers who are eligible for transfer to home State under inter-State transfer are entitled to exercise their option in favor of any four divisions in the order of preference if the number of divisions in their home State is four or more and where the number of divisions in the home State is less than four, then option may be restricted to the number of divisions in the home State.
4.8.0. Rural/Semi-Urban Branch service :
4.8.1. - Notwithstanding the norms for transfer laid down in the foregoing paragraphs, the bank shall have the right to transfer an officer to any rural/semi-urban branch either as a post promotion condition or otherwise for completing the requisite period of such service for promotion on the basis of seniority as per Government guidelines issued from time to time in this regard. Further, such transfers shall have overriding effect or precedence.
4.8.2. - Officers who have completed the requisite rural/semi-urban branch service as the case may be are liable to be transferred out of such branches so as to provide opportunities to other officers to complete the requisite rural/semi-urban branch service.
4.9.0. Cut-off age :
Normally, officers who have completed 48 years of age are not liable for transfer to North. However, officers who have completed 48 years of age but not completed 52 years of age are liable for inter State transfer.
4.10.0. Cut-off date :
The cut-off date for relieving/reporting upon transfer shall be as determined by bank from time to time. For the year 1992, the officers transferred from North to South should be relieved in between 7th and 12th May, and should report for duty on or before May 23rd. In the case of officers transferred from South to North, they should be relieved in between May 14th and 19 and should report on or before May 30.
4.11.0. Temporary exemptions :
4.11.1. Active sportspersons :
Officers who are members of bank's sports team or representing the bank at State/National/International level are temporarily exempted from South to North, Inter-State and outside the center transfers so long as they are categorised as active sports persons by sports officers of the bank and the officer designated as coach by the sports committee of the bank are also eligible for such temporary exemption. This temporary exemption is not available to those officers who have been decategorised by the sports committee of the bank. Such lists of officers eligible for temporary exemption shall be prepared by the sports committee in consultation with the personnel department, every year, and the same shall be made available to the personnel department before effecting general transfers.
4.11.2. Physically handicapped person :
Such of those officers who are recruited under physically handicapped category or those who have been categorised as such by the bank from time to time are temporarily exempted from South to North and inter-State transfers.
However, they are liable for transfer within the State. The bank shall before granting temporary exemption take into account the nature and extent of disability of the officer with duty regard to incapacity of the officer to move out of the present place of posting or centre. Such list shall be prepared by personnel department in consultation with bank's doctor.
4.11.3. Extreme medical grounds :
Such of those officers, who have been declared by the panel board of doctors appointed by the bank as sick and require to be retained in the present place of posting, shall be temporarily exempted from transfers. However, if the nature of sickness does not call for retention in the present place of posting, the bank may transfer them in accordance with the transfer policy to a place where the necessary medical facilities are available. All such cases shall be reviewed every year before effecting the annual general transfers.
4.11.4. Office-bearers of recognised registered trade union of officer employees :
The central office-bearers of the registered trade union of officers employees recognised by the bank will be placed in the centre where the head office of the bank is situated and they are exempted from transfers during their tenure as such. Further, this exemption is limited to only six such central office-bearers and available so long as the recognition granted by the bank is in force.
4.12.0. Request transfers/postings :
4.12.1 - Request transfers will be considered subject to administrative convenience/exigencies of service provided the officer has completed a minimum period of three years active service in the present posting. However, on extreme medical/compassionate grounds, transfer may be considered before completion of one tenure at the direction of the bank.
4.12.12 - Request for change of postings within the same centre may be considered only after completion of three years active service in the present posting.
4.12.3 - Request for transfer on extreme compassionate grounds will be considered solely at the discretion of the bank and such transfer will be for a limited period of three years only and thereafter the officer shall be transferred on reviewing the case.
4.12.4. - All request for transfer will be considered only two times in ones entire career in the bank as officer."
4. Pursuant of Annexure 'F', respondent-bank made transfer orders as at Annexures 'G' and 'H' dated March 16, 1992, and April 13, 1992, respectively, whereby petitioners Nos. 3 to 5 came to be transferred. The third petitioner working at Udipi of Karnataka has been transferred to Delhi, the fourth petitioner working the Bangalore has been transferred to Ahmedabad and the fifth petitioner working in Bangalore has been transferred to Delhi.
5. It is not in dispute that all the petitioners, viz., petitioners Nos. 2 to 4, are the office bearers of the first petitioner. The second petitioner is the General Secretary. Petitioners Nos. 2, 3 and 4 are the Organising Secretaries and the fifth petitioner is a Treasurer. They were so elected in the election that was held on November 14, 1990, as at Annexure 'B'.
6. It is their case that their union has been affiliated to Indian Trade Trade Union Congress. According to the petitioners, Annexure 'D' which was the resultant of discussion that took place between the management and the union, the office-bearers were entitled to work at head office, as their presence was required always for consultation and discussion in matters pertaining to the welfare of the officers of the union. It is their further case that in the case of office-bearers of other two unions, the respondent-bank did not choose to transfer them. On the other hand, they gave effect to the circular dated October 4, 1980, as at Annexure 'D' whereas in the case of these petitioners they gave effect to the transfer policy evolved at Annexure 'F' and thus transferred petitioners Nos. 3 to 5. thus, the said transfers of the petitioners were not only discriminatory but mala fide. It is also their case that the so-called policy evolved at Annexure 'F' does not stand to reason or there is any rationale behind it. According to them, the policy decision evolved by issuing a circular at paragraph 4.11.4. of Annexure 'F' is quite arbitrary and has given uncontrolled powers to the management, to pick and choose the officials and to post to whatever place the management likes. The policy evolved at Annexure 'F' is arbitrary as it is not made binding on staff members of other unions as Annexure 'F' has been evolved after consultation with the office-bearers of the first union, i.e., All Indian Vijaya Bank Officers' Association alone. The present transfer orders are made not only with a mala fide intention but with a vindictive attitude to harass these petitioner as these petitioner had opposed the continuance of the then chairman of the bank. No reasons are assigned as to why the earlier policy at Annexure 'D' was discontinued. This shows that respondent-bank is not discharge on the functions properly. Even though it is an instrumentality of the State, the bank is conducting itself in a whimsical and arbitrary manner. It is also contended that though Annexures 'G' and 'H' relate to transfer of staff shown therein, the same came to modified yielding to pressure of the office bearers of the concerned union. But the same concession has not been shown in case of these petitioners. To substantiate the same today an affidavit has been filed declaring the modification of transfer of one K. Balkrishna Shetty, the General Secretary of the second union who was transferred from Karnataka to North subsequently retained in Bangalore and in fact at no time he served outside Karnataka.
7. For these reasons, they have sought for the reliefs mentioned in the writ petitions.
8. In support of above contentions, Sri. H. S. Jois, learned counsel for the petitioners, argued that the approach of the respondent-bank in attempting to transfer these petitioners leaving others undisturbed who are similarly placed is not only discriminatory but made with a mala fide intention. For example, in case of only Balakrishna Shetty, General Secretary of the second union, though the was transferred, later, on his request has been retained in Bangalore. But in the case of petitioner Nos. 3 to 5 though such request was made, the same has not been considered. It shows apart from discrimination the vindictive attitude on the part of the chairman towards the petitioner. No doubt, at Annexures 'G' and 'H' transfers were made both inside and outside the State of Karnataka, but the same came to be modified at least in the case of 220 officers, without assigning reasons as to why all of a sudden such modification was necessitated and such modification was not applied in the case of petitioners. The so-called policy evolved at Annexure 'F' neither stands to reason nor it has got the nexus to achieve the object. Further the object itself is not spelled out properly. When the idea behind retaining the office bearers of the union in Bangalore is to see that they represent the cause of officers of their union and thus strive for their welfare, then the petitioners being four leading officers of the Congress are also entitled to be retained in Bangalore till their term comes to an end. Since the said transfers of the petitioners have been made ignoring the said policy the same are illegal and run contrary to the banking policy. The present transfers of the petitioner, apart from being vindictive, indirectly curb the union's activities, thus depriving the right of petitioners' Congress to carry on its activities to ventilate the grievance of the workmen in a democratic manner.
9. Sri H. S. Jois, learned counsel for the petitioner, also contended that even though transfer is an incidence of service and an employer has always authority to transfer employees, such transfers shall be made always in the public interest or in the cause of the institution but not according to his or its whims and fancies. If guidelines are there or policy is evolved though the same has no statutory force but in order to see that there shall be smooth functioning of the institution and the staff shall not be demoralised and education of the staff's children not to be hampered there shall not be frequent transfers. The authorities who exercise powers of transfer, shall exercise such powers discompassionately and not with vindictive attitude.
10. To support his contention, Sri Jois learned counsel for the petitioners, placed reliance on a decision of his Court in the case of H. Krishna v. State of Mysore, (1973) 2 Mys. LJ 271, wherein this Court did not accept the policy evolved by the Government that teachers shall be transferred to far off places. Further, disapproving the policy of the Government not to retain the primary school teacher in the home taluk while striking down such a policy as unconstitutional, the Court held as follows :
"5. Clause (3) of the impugned order and other portions of clause (4) and (5) of the order which are in the nature of corollaries to clause (3), which I have adverted to above, are impugned by the petitioner on the ground that the same are violative of the fundamental rights guaranteed to the petitioners under Article 14 of the Constitution. The case of the petitioner is that even if the primary school teacher may be regarded as a well defined class different and distinct from other Government servants, there is no justification for treating the primary school teachers for special treatment by clause (3) of the impugned order in the matter of transfer. That the state government has power it issue instructions regulating transfer of its Government servants cannot be disputed. It cannot also be disputed that the State Government can in the exercise of its executive powers under article 162 of the Constitution, prescribe the conditions for transfer as well as the procedure for effecting such transfer. It cannot also be disputed that this Court cannot also be disputed that this Court cannot go into the question of the propriety of an order of transfer made by the State Government or its officers in a given case. But if the state Government issues a general order as it has done in these cases laying down the condition and the procedure for transfer of primary school teachers and a complaint made that the action taken by the State Government amounts to hostile discrimination against the petitioners, the Court has necessarily to examine as to whether the classification made by the State Government is justified on the basis of well-known principles. In order to meet the attack of the petitioner, that the impugned order violates Article 14 of the Constitution, the State has necessarily to establish that is has made a reasonable classification and that the classification so made has a rational nexus with the object sought to be achieved. It is no doubt true that the Court has to bear in mind that there is an initial presumption in regard to the constitutional validity of the impugned order.
6. As already mentioned, the principal contention of the petitioners is that though the primary school teachers can be regarded as a clear and distinct class from other Government servants of the State, the classification made for the purpose of impugned order has no nexus with the object sought to be achieved by the order. Generally stated, the object of the order of transfer must be regarded as being 'public interest'. The petitioners have asserted that whereas there is no directive issued by the state Government that other Government servants should not be posted to their home taluks, it is only the primary school teachers that have been picked and chosen for such hostile treatment by the State and for which there is no justification whatsoever. The order itself does not give any reasons as to why this class of Government servants has been picked and chosen for imposition of a ban as contained in clause (3) of the impugned order against the primary school teachers being posted in their home taluks. There is no apparent reason which can easily be discerned. The State Government which has filed this counter-affidavit, though it has given the background for the passing of the impugned order, has not stated any reason as to why it became necessary to impose a ban against transfer to the home taluks only in respect of one class of Government servants, viz., the primary school teachers. In paragraph 5 of the counter-affidavit, this is what is stated :
"Notwithstanding the above orders and instructions, Government found that their home towns or places to taluks and the competent officers had not strictly carried out the instructions issued thereto by the Government. In addition to the above there were general complaints of favouritism and victimisation in the matter of transfer against competent authorities. To obviate this kind of complaint, the Government thought it is necessary to have a rational and consistent policy in the matter of transfer of primary school teachers and, therefore, the impugned Government order was issued."
The reference in the aforesaid portion of the counter-affidavit to the earlier order of the State Government is to the order dated August 13, 1970, by which the State Government directed that so far as the primary school teachers are concerned, they should not be posted to their home taluks. That the ban contained in the order of August 13, 1970, is similar to the ban contained in clause (3) of the impugned order does not afford any justification. If clause (3) of the impugned order is violative of Article 14 of the Constitution, it follows that the earlier direction issued by the State Government of August 13, 1970, also suffers from similar to clause (3) of the impugned order was not given effect to by the subordinate officers or that there was favouritism of victimisation in enforcing that order can hardly be regarded as affording justification for the impugned order, the counter-affidavit filed on behalf of the State does not, therefore, give any reason for justifying a special treatment so far as the primary school teachers are concerned by the imposition of the ban contained in clause (3) of the impugned order. If orders of transfer are required to be made in public interest, public interest would necessarily require similar treatment being meted out to other Government servants of the State. There is no peculiarity or special reason pleaded or proved justifying the imposition of a ban as continued in clause (3) of the impugned order read along with its corollaries in clauses (4) and (5) of the said order. I am, therefore, clearly of the opinion that there is no nexus between the object sought to be achieved and the classification sought to be made by the impugned order."
11. For the proposition that the frequent transfers will definitely affect the efficiency in the administration and hamper education of the staff's children, Shri Jois placed reliance on a decision of the Division Bench of Bombay High Court between Sesharao Nagaorao Umap v. State of Maharashtra, (1985-II-LLJ-73), where in it is said that Government is always bound by its policy decision to enforce strictly. However, the discretion that is available to the authority to give effect to transfers, powers exercised must be honest, bona fide and reasonable. Again, the State has to follow the relevant principles applicable, as applying to others similarly situated and it must not be for mala fide, extraneous or irrelevant consideration as otherwise that would amount to denial of equality of opportunity. By placing reliance on a decision of the Supreme Court rendered in the case of E. P. Royappa v. State of Tamil Nadu 1974 I LLJ 172, Sri Subramanya Jois, learned counsel for the petitioners, argued that any arbitrariness in the acts of authorities or if any action or order of the State or an authority is mala fide the same deserves to be held as illegal. According to him, the present action of the respondent-management in transferring the petitioners is against the principles laid down in Royappa's case (supra) particularly to the observations made at paragraphs 17-21 pp 202-205
12. By so contending, he argued that from the circumstances explained, the conclusion to be drawn is that the present transfers are clear case of resultant of mala fides and quite discriminatory and thus violative of Article 14 of the Constitution of India. According to him, relevant portion in Royappa's case, (supra) is as follows (at page 202) :
"Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant consideration because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Articles 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice : in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16."
For the reasons given above Sri Jois, learned counsel for the petitioners, argued that the transfer of the petitioners was not in the public interest on the ground the same is arbitrary, discriminatory and resultant of mala fides and as such the transfer orders be quashed. Further, Annexures 'F', 'G' and 'H' be declared as illegal and unconstitutional.
13. As an answer to these contentions, Sri B. C. Prabhakar, learned counsel for the respondent-bank argued that the claim of the petitioners as baseless on the following grounds :
(1) The policy evolved at Annexure 'F' is most reasonable and made in the interests of the institution. Earlier to passing of Annexure 'F' the policy of transfers of a union was as mentioned at Annexure 'D'. However, by review it was felt that the same deserves to be withdrawn and as such it came to be withdrawn and as such it came to be withdrawn as Annexure 'E' which reads as follows :
"VIJAYA BANK Head Office 2, Residency Road, Bangalore 560025.
Per : 5807/81 May 19, 1981 Chairman's Special Circular No. 4 of 1981 Transfer of office-bearers of unions Recently, a policy decision to the effect that five leading office-bearers of each of the unions having all-India status will be posted at the bank's headquarters was communicated to the branches/offices through Custodian's special circular No. 8 of 1980, dated October 4, 1980.
The aforesaid policy has since been reviewed and it is felt that the continuance of such a policy will result in serious administrative inconvenience to the Bank. It has, therefore, been decided to discontinue the policy with immediate effect.
The posting already made in accordance with the Custodian's circular referred to above will, however, stand."
Accordingly, Annexure 'F', the present policy relating to transfer has been evolved. In the scheme criteria has been clearly made out.
(2) He submitted that the respondent bank has got its branches throughout India. Most of its officers are transferred from Karnataka to north to see that the branches started in north India are also properly manned by posting experienced officers trained in Bangalore. One of the policies is that each officer during his tenure of office shall work at least once outside Karnataka, viz., in north India. As such, the present transfers of the petitioners are to give effect to such a policy.
(3) He submitted that the contention raised by other side that transfer of the petitioners is quite discriminatory in that the petitioners being leading office-bearers of a union have been transferred but retained office-bearers of another union, is baseless.
(4) Further, office bearers of other two unions, viz., the President and General Secretary of those two unions were transferred but later retained as per the norms fixed in the transfer policy at Annexure 'F'. Sri Balakrishna Shetty, the General secretary of the union was transferred to north India. But, on his request, his transfer has been kept in abeyance till the end of December, 1992. Moreover, it is not shown that the petitioners' Congress is a recognised one. The membership of the petitioners' Congress is hardly 16 per cent. As such there was no necessity for the bank to consult the petitioners' Congress and then to evolve a transfer policy.
(5) According to Sri Prabhakar, the guidelines and circumstances of transfers have been clearly explained at Annexure 'F' which are extracted above. The transfer of petitioners is made by an authority who has a competency and that too in the public interest, as such it cannot be said that is is either discriminatory or mala fide in nature.
(6) No doubt, general transfers given effect to at Annexures 'G' and 'H' subsequently modified in the case of 109 persons on their request that too they were transferred from one zone to another of South India but not retained in Bangalore or in the State of Karnataka.
(7) According to him, the contention that when above three persons have been retained in Bangalore as such these petitioners also should be retained in Bangalore has no substance for the reason that in case of Sri. M. B. Rajanikant, he has to be retained in Bangalore as he is the committee member of SC and ST and his presence is required before the Parliamentary Committee. In case of Sri B. K. Rai, who was transferred from Halebadnur of Karnataka to Kanchiwadi of North India, he has to be retained in Bangalore as he lost his wife and he was the only member to take care of his children. In the case of Karunakaran, he was retained for the reason that even though he was transferred from Bangalore to Delhi, but modified and posted to Calcutta as His wife is employed and working in Calcutta.
(8) Moreover, the transfers of the petitioners made neither in the middle nor end of the year but made during the proper period, i.e., during the period of general transfers."
14. The conditions as per Regulation 47 of the Vijaya Bank Officers' Service Regulations, 1982, are as follows :
"Transferability 47. Every officer is liable for transfer to any office or branch of the bank or to any place in India."
Thus, all the officers are liable to be transferred anywhere within any place in India. Merely because the petitioners are the office-bearers of the Congress they cannot assert that they shall continue in Bangalore till their tenure as office- bearers or their term comes to an end.
15. Sri B. C. Prabhakar, learned counsel for the bank argued that the posts of officers of the bank are transferable and the transfers have been made keeping in mind the scheme and other regulations which deal about transfers and as such the transfers are in the public interest.
16. As mentioned earlier, one of the service conditions of an employee or officer of the bank is that one shall work at least for one tenure in the north as these petitioner have been serving in the bank for more than 15 to 20 years and had not served in north. During general transfers they were transferred to north.
Retaining of office-bearers of other unions only for a temporary in Bangalore cannot lead to the conclusion that the management has acted with a mala fide intention to liquidate the first petitioner union.
The transfer is one of incidence of service.
the petitioners have attacked the then chairman of the bank by making wild allegations as if to make one to believe that the transfers of these petitioners are made at the instance of the chairman. But, in the absence of the chairman as a party to the proceedings no such allegations can be made.
It is also not open for the petitioner' Congress to equate the petitioners with office-bearers of recognised unions.
Any modification in the transfer orders made at Annexures 'G' and 'H' are either adjustment within the zone or different zone in north India or any or other change from north zone to another north zone. Retention of a few in Bangalore or in other parts to Karnataka is concerned, the same is mainly on the representations and taking into consideration the hardship pleaded by them and not otherwise.
17. Sri Prabhakar submitted that in view of the reasons given above it is not proper to contend that the transfer of the petitioners is quite discriminatory, arbitrary and made with a mala fide intention. He also contended that the policy an Annexure 'F' is a policy well thought out.
18. Since mala fides or discrimination are not established and frequent changes are not pleaded, Sri Prabhakar submitted that writ petitions deserve to be rejected.
In support of his contention, Sri B. C. Prabhakar, learned counsel for the respondent-bank relied upon a decision of the Supreme Court rendered in Varadarao's case - 1986 II LLJ 516, Paragraph 4 of the said judgment reads as follows (at page 517) :
"The learned judges observe that these penalties can be imposed on a Government servant where disciplinary proceeding are initiated against him under the Rules by the competent authority. They further observe that Rule 18 of the Rules, therefore, provides for appeals against orders imposing penalties referred to and specified in Rule 8, and add :
'If an order of transfer does not amount to an order of penalty or any other order falling within Rule 19, such an order does not attract and is, not appealable either under Rule 18 or Rule 19'.
We agree with the view expressed by the learned judges that transfer is always under stood and construed as an incident of service, the words 'or other conditions of service' in juxtaposition to the preceding words 'denies or varies to his disadvantage' his pay, allowances pension' in Rule 19(1)(a) must be construed ejusdem generis. Any alteration in the conditions of service must result in prejudice to the Government servant, and some disadvantage touching his pay, allowances, seniority, promotion, leave, etc. It is well understood that transfer of a Government servant who is appointed to a particular cadre of transferable posts from one place to another is an ordinary incident of service 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 place or in 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 the guidelines to the officers who order transfers in the exigencies of administration than vesting of any immunity from transfer in the Government servants.'
19. According to him, the transfers have been made purely in the interest of the Institution. There cannot be any interference by the Courts in transfers as held by the Division Bench of this Court in the case of Syndicate Bank v. Sunder K. Paniyadi, 1992 I LLJ 273 at 278 wherein it is held as follows :
"Transfer is a necessary concomitant of every service. Therefore, if the administrative exigencies warrant a transfer, the High Court cannot, as though it is exercising supervisory jurisdiction over the bank, say how it should manage its affairs. It is entirely the look-out of the employer bank. The mere fact that the writ petitioner were subjected to three transfers or it had come to be passed in the middle of the year will be of no consequence whatever in examining the validity of the transfer, nor again, the so-called policy which is adumbrated in a circular could ever be enforced by the High Court. These circulars are intended only for the internal guidance, the breach of which will not give rise to any cause of action in favour of the writ petitioners. The orders of transfer, made in pursuance of general toning up of the administration, cannot be said to be mala fide."
20. Since the order of transfer is one of incidence of service any interference will hamper the efficiency of administration and will result in violation of right conferred on an authority to transfer. For this proposition, he placed reliance on a decision of the Supreme Court in the case of Mrs. Shilpi Bose v. State of Bihar 1991-II-LLJ-591 at 592. The relevant portion reads as follows :
"If the competent authority issued transfer orders with a view to accommodate a public servant to avoid hardship, the same cannot and should not be interfered by the Court merely because the transfer orders were passed on the request of the employees concerned. The respondents have continued to be posted at their respective places for the last several years, they have no vested right to remain posted at one place. Since they hold transferable posts they are liable to be transferred from one place to the other. The transfer orders had been issued by the competent authority which did not violate any mandatory rule and, therefore, the High Court had no jurisdiction to interfere with the transfer orders.
In our opinion, 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 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 conductive to public interest. The High Court overlooked these aspects in interfering with the transfer orders."
For the above reasons, Sri Prabhakar submitted, the writ petitions be dismissed.
21. From the above discussion, the following points emerge for consideration :
(1) Whether transfer can be challenged contending policy of transfer is not reasonable ?
(2) Whether orders of transfer of the petitioners are arbitrary or discriminatory or mala fide ?
22. The petitioners have not denied that the authority who made transfers is competent. It is not their case that when once they have been appointed or promoted they are not liable to be transferred from one place to another. It is also not their case that an officer working in the State of Karnataka as per the policy is liable to be transferred outside Karnataka, viz., to work in north India for one term. But their only grievance is that as they being office-bearers of the first petitioners' Congress is fairness they should not have been transferred so long as they hold their office as did in the case of others.
23. The transfer is an incidence of service, this power is inherent to an employer. Transfer cannot be assailed in the absence of rules or the same made not in the public interest public interest but made for extraneous consideration or made with a mala fide intention to victimise an employee or such a transfer has resulted in reverting an employee. This position has been clearly explained by the Supreme Court in the case of B. Varadha Rao v. State of Karnataka (supra) referred to earlier. While explaining the scope of guidelines in the matter of transfers the Supreme Court extracted the observations of this Court made in Varadha Rao's case, (supra). The Division Bench of this Court in the case of Syndicate Banks v. Sunder K. Paniyadi, (supra) took almost the similar view in the matter of transfer which is also referred to earlier in the writ petitions.
24. A similar view has been taken by the Supreme Court in the case of Mrs. Shilpi Bose v. State of Bihar 1991 II LLJ 591.
25. From the above position, it is clear that normally the Courts will not interfere in orders of transfer which are transferable. It can interfere only when the transfer orders are made by an authority who has no competency or the motive is to victimise the employee or made with a mala fide intention. Thus, on the first point it is held that transfer orders cannot be challenged unless the same are illegal, without an authority of law or mala fide or made for extraneous consideration.
26. The question now to be considered is whether the present transfers are arbitrary or have been made with a mala fide intention. In order to know whether the authority passed the same with a mala fide intention or not, one must verify the circumstances under which an authority has passed the transfer orders and also the intention. In the instant case, transfer was given effect to pursuant to the policy laid down at Annexure 'F' which policy was made after consulting the recognised union. When once such a policy has been accepted it is not open for them to say that the same is not binding, merely because, the rival union has not participated. The policy decision has been taken on the consent given by the union representing more than 61 per cent. of the staff. It is true that if transfer is made not in the public interest but made with a motive to appoint another official to the said post then the Court can definitely interfere. The proving of mala fides lies upon the person alleging it, because it is very easy to allege mala fides but difficult to prove the same as held by the Supreme Court in the case of E. P. Royappa v. State of Tamil Nadu, (supra). The relevant portion reads thus (at page 202) :
"Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is, therefore, violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Articles 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice; in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16."
27. Likewise, earlier to Royappa's case (supra), the Supreme Court in the case of Barium Chemicals Ltd. v. Company Law Board, , while dealing with the question relating to transfer of an employee from the Law Board took the similar view.
28. Now, it is also not shown that the authority who made transfers had no authority or while affecting transfers had any dishonest intention or transfers were made with a view to victimise the petitioners as held by the Supreme Court in the case of Syndicate Bank Ltd. v. Their Workmen, (supra)
29. From the information furnished by the bank it is clear that there is neither arbitrariness nor have the authorities violated the regulations in order to transfer these petitioners. The transfer of these petitioners have been made in the public interest as they had not worked in North India. The petitioners' Congress is not a recognised one. Sri Balakrishna Shetty, office- bearer of another union, has been retained only for a temporary period till the end of December, 1992, that too on his request and not otherwise.
30. The policy that the leading office-bearers of the union shall be retained in headquarters has been given effect to by retaining the leading office-bearers of the recognised union. If any modification in the transfer orders have been made the same are purely on humanitarian grounds, too for a temporary period by way of adjustments.
31. From the above, it is clear that the petitioners have approached this Court only with a view to continue in Bangalore.
32. After perusing the records and also the authorities relied upon by both sides, I am of the opinion that none of the contentions of Shri Subramanya Jois, learned counsel for the petitioners has any merit. The appointments of these petitioners were made by the respondent bank who is an authority as such the terms of appointment and other conditions are subject to service regulations including the policy evolved after bilateral discussion that took place between the employer and the recognised union. Hence, it is not open to the petitioners to contend that they are not liable to be transferred on the ground that they are also office bearers of the Congress. If the contention of the petitioners that no office-bearers of union is liable to be transferred is accepted then it is impossible for the management to transfer any officers outside Karnataka, because a few officers themselves forming a union can say that they have been elected as office-bearers and thus seek their retention. Transfer policy that each officer shall serve once in their period of service outside the State of Karnataka, as such the transfers or the petitioners cannot be held as bad or illegal.
33. It cannot be said that the management has followed discriminatory attitude in picking up only these petitioners to transfer them from Karnataka to outside and leaving others. Good number of officers have been transferred from Karnataka to serve in North India. Out of them a few had to be adjusted and three or four had to be retained either on humanitarian grounds or for temporary period on their request. So also in the case or Sri Balakrishan Shetty. His transfer has been kept in abeyance till the end of December, 1992. The management has also not violated any of the service regulations or the guidelines fixed, to say that transfers of the petitioners are arbitrary.
34. It is true as held by the Bombay High Court in the case of Seshrao Nagorao Umap, that frequent transfers will definitely demoralise the employees and affect the efficiency of the administration apart from hampering the education of the staff's children. But, here transfers are not frequent ones. In order to decide whether transfers have been made with a mala fide intention or were arbitrary or discriminatory, various factors have to be taken into consideration and then an opinion formed whether the transfer has been made with any dishonest intention or in the public interest. In matters relating to transfer, it is very difficult to understand the mind of an officer as to why he has made an order of transfer. Regarding the authorities relied upon by Sri Subramanya Jois, viz., a decision taken by this court in the case of H. Krishna v. State of Mysore (supra) where in this court struck down the rule made by the Government and held that :
"(3) Teachers who are working in their home taluks should be transferred out of their home taluks in a phased programme. In the beginning those who have stayed for more than ten years or more be transferred. Such transfers should not exceed ten per cent. of the total number of teachers in the taluk."
35. In my opinion, on facts the above decision has no application. Because that was a case where frequent transfers were held as resultant of arbitrariness and mala fides. In view of the observations made above it has to be said that the petitioners have not made out a case that the policy evolved at Annexure 'F' is quite arbitrary, unconstitutional and transfer of the petitioners discriminatory or resultant of mala fides. As such the petitions have to be dismissed.
36. Thus, point No. 2 is also not established. No doubt, when there is any order of transfer definitely it will be painful to an employee. In the instant case, the petitioners have been transferred during general transfers. If these petitioners had general transfers. If these petitioners had really any problem they should have immediately appealed to the higher authorities explaining the difficulties to leave the head quarters for some time and if such request was made I think the authorities would have considered the same. Even now, instead of contending that the transfers of the petitioners are arbitrary, discriminatory, illegal and resultant of mala fides, it is proper for the petitioners to make a representation to the authorities concerned of their retention at least for reasonable time in Bangalore and if such a request is made it is hoped that the authorities will consider the case of those who have not yet reported outside, for their retention till the end of May, 1993.
37. Since this Court cannot interfere in matters of transfer of the petitioners all that I can now say is to conclude this order by extracting the observations made in Gujarat Electricity Board v. Atmaram Sungomal Poshani, 1989 II LLJ 470 at 472-473 :
"Wherever, a public servant is transferred, he must comply with the order but if there be any genuine difficulties in proceeding on transfer it is open to him to make representation to the competent authority for stay modification or cancellation of the transfer order. If the order of transfer is not stayed, modified or cancelled the concerned public servant must carry out the order of transfer. In the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a representation, or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance to the transfer order, he would expose himself to disciplinary action under the relevant Rules ...."
38. In view of the above observations all these petitions are dismissed. No costs.
39. In order to facilitate the petitioners to make representation to the higher authorities of the bank this order is stayed for 15 days as earlier the petitioners had benefit of stay.