Jaz Azeezul Haq v. State Bank of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 26TH DAY OF AUGUST 2020 / 4TH BHADRA, 1942** ## **WP(C).No.15680 OF 2020(H)** ## **PETITIONER/S:** **JAZ AZEEZUL HAQ AGED 48 YEARS (PF NO.2978032)FORMER ASSISTANT GENERAL MANAGER(FSLO)AND ADDITIONAL CHARGE IOR DEPARTMENT,STATE OF INDIA,LOCAL HEAD OFFICE POOJAPPURA,THIRUVANANTHAPURAM, PIN-695012.** **BY ADV. SRI.C.R.SIVAKUMAR** ## **RESPONDENT/S:** |**1**|**STATE BANK OF INDIA**| |---|---| ||**REP.BY CHIEF GENERAL MANAGER,**| ||**LOCAL HEAD OFFICE,POOJAPPURA,**| ||**THIRUVANANTHAPURAM,PIN-695012.**| |**2**|**DGM AND CIRCLE DEVELOPMENT OFFICER,**| ||**STATE BANK OF INDIA,RECONCILIATION**| ||**DEPARTMENT,LOCAL HEAD OFFICE,**| ||**POOJAPPURA,THIRUVANANTHAPURAM,**| ||**PIN-695012.**| |**3**|**ASSISTANT GENERAL MANAGER(HR),**| ||**STATE BANK OF INDIA,LOCAL HEAD**| ||**OFFICE,POOJAPPURA,THIRUVANANTHAPURAM,PIN-**| ||**695012.**| WP(C).No.15680 OF 2020 ..2.. - **4 DGM AND CIRCLE FINANCIAL OFFICER, STATE BANK OF INDIA,RECONCILIATION DEPARTMENT,LOCAL HEAD OFFICE, POOJAPPURA,THIRUVANANTHAPURAM, PIN-695012.** - **5 GENERAL MANAGER, STATE BANK OF INDIA CIRCLE AUDIT OFFICE, PUNE,PIN-411000. R1-5 BY ADV. SRI.P.GOPAL** ## **OTHER PRESENT:** ## **ADV P GOPAL FOR RESPONDENTS** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.15680 OF 2020 **==> picture [17 x 9] intentionally omitted <==** ## **C.S.DIAS, J.** ## **====================== W.P.(C) No.15680 of 2020 ====================== Dated this the 26[th] day of August, 2020.** ## **JUDGMENT** The petitioner is a Scale – V Officer of the State Bank of India (for brevity hereinafter referred to as 'Bank'). He is presently working as Assistant General Manager at Poojapura Branch of the Bank in Trivandrum. 2. The petitioner has averred that the 3[rd] respondent had by Exhibit P-1 communication invited options for deputation to the Inspection & Audit Department (in short, Audit Department) in Hyderabad. The petitioner by Exhibit P-2 reply gave his options as CAO Chennai or CAO Bangalore. Thereafter, the petitioner came to learn that the Bank has decided to post him at the Audit Department in Pune. Accordingly, the petitioner had submitted Exhibit P-3 representation before the 2[nd] respondent. However, there was no response. Only when the WP(C).No.15680 OF 2020 **==> picture [18 x 9] intentionally omitted <==** petitioner was served with Exhibit P-4 order, he learned that he was relieved from his post on 24.07.2020. 3. It is the case of the petitioner that the Bank has issued Exhibit P-5 Advisory Guidelines regarding transfer and posting of the employees for the current year, due to the COVID-19 pandemic. The 4[th] respondent has violated the Guidelines and relieved the petitioner with an instruction to report to the General Manager, Circle Audit Office, Pune. The decision of the 4[th] respondent, to relieve the petitioner from the present post with an instruction to report at Pune, is against the spirit of the Exhibit P-5 guidelines. The respondents have not considered Exhibit P-3 representation, particularly in light of Exhibit P-5 guidelines. Exhibit P-5 guidelines categorically stipulate that request transfers in all States have to be kept on hold for the current year. The Bank while formulating the Guidelines, was guided by the pandemic situation that existed in the Country and that the Guidelines were issued to reduce the movement of officers. The petitioner, _inter alia_ , seeks a direction to the 4[th] WP(C).No.15680 OF 2020 **==> picture [17 x 8] intentionally omitted <==** respondent to withhold Exhibit P-4 order, to the extent of posting the petitioner to the General Manager, Circle Audit Office, Pune, till 31.03.2021. 4. The Standing Counsel appearing for the respondents has filed a statement. It is, _inter alia_ , contended that the Bank has 17 local head offices in the Country. One of its circle offices is situated in Thiruvananthapuram, having control of branches in Kerala and Lakshadweep. The Bank has 23,156 branches across the length and breadth of the Country. It is the legal and regulatory requirement of the Bank to have a periodical inspection of its branches/offices/establishments to scrutinize their functioning and to assess the potential risk faced. The Bank, for the said purpose, has constituted an independent inspection and audit wing with its principal office in Hyderabad. The said wing is under the direct control of the Circle Audit Office. Adequate human resources and proper deployment are essential in each circle audit office for the effective inspection and auditing of its branches/offices/establishments. As a part of WP(C).No.15680 OF 2020 **==> picture [18 x 8] intentionally omitted <==** the manpower assessment exercise of the Audit Department, for the current year, the Corporate Centre of the Bank had issued letters to all the circles to suggest the names of the officers with their bio-data for constituting the inspection and audit wing. The petitioner is one among of the officers who have been identified from the Thiruvananthapuram circle. The appointment was duly conveyed and acknowledged by the petitioner. The petitioner intimated his two preferred places of option and his area of expertise, which is in SME Credit and work experience of two terms in Scale-III as Relationship Manager - Medium Enterprises. The Corporate Centre of the Bank approved the names of 12 officers for deputation to the Audit Department, which includes the petitioner. The petitioner was relieved from Thiruvananthapuram on 24.07.2020 by Exhibit P-4 letter with instructions to report at CAO, Pune. Presently, the petitioner is not under the control of the Thiruvananthapuram circle, and his services are at the disposal of the Inspection Department at Pune. Even though the WP(C).No.15680 OF 2020 **==> picture [17 x 8] intentionally omitted <==** petitioner had submitted Exhibit P-2 email and opted for Chennai and Bangalore, the petitioner has no right to get posted at any of the places. His posting is to a suitable office, where his services are most required. The Bank has the absolute right to transfer and post the petitioner at a place of its choice, as contemplated under Rule 7 (1) read with Rule 47 of the Rules, 1992. The petitioner is working as Assistant General Manager in the Bank from 29.06.2018 onwards. The petitioner is liable to be get posted anywhere in India. He has been working at various offices and branches at Thiruvananthapuram for the last seven years. The Bank has permitted the petitioner to continue at Thiruvananthapuram, even after his promotion as Assistant General Manager. The Bank requires the petitioner's services at CAO Pune. There is no challenge against his posting to Pune, or is there any plea of malafides in his posting. All that the petitioner has sought for is that his posting to Pune be deferred because of the COVID-19 pandemic. The officials of the Bank cannot refuse the call of public duty even in a hostile condition. WP(C).No.15680 OF 2020 **==> picture [18 x 8] intentionally omitted <==** The Bank cannot hold the transfer and posting of essential officers identified to attend to its core functions. There is no ban for the movement of the citizens across India. Domestic flight operations have resumed in the Country from 26.05.2020. InterState movement has been permitted from 01.06.2020 onwards. Public services cannot be kept closed indefinitely in the Country. In order to ensure the functioning of the essential services such as banks viz-a-viz the fight against the COVID-19 pandemic, the various Government agencies have issued directions. The Bank is duly complying with all the instructions. The present transfer and posting of the petitioner is not in violation of any such instruction. Hence, the writ petition may be dismissed. 5. The petitioner has filed a reply affidavit. It is, _inter alia_ , contended that the petitioner is fully aware that the officers selected to the Audit Department will not be allowed to work in the parent/present circle. In the said circumstances, the petitioner has opted for a branch in Chennai or Bangalore. The petitioner's request in Exhibit P-3 is only to delay his relieving WP(C).No.15680 OF 2020 **==> picture [18 x 9] intentionally omitted <==** from the present post due to the pandemic. Moreover, the number of COVID-19 cases are increasing day by day in Pune, where the number of people affected is rising exponentially. The petitioner has not challenged the posting order or the right of the respondents to depute the petitioner. The prayer in the writ petition is only to withhold Exhibit P-4 order till 31.03.2021 based on Exhibit P-5. Hence, the writ petition may be allowed, and the petitioner's posting may be deferred until 31.03.2021. 6. Heard Shri.C.R.Sivakumar, the learned counsel appearing for the petitioner, and Shri.P.Gopal, the learned Standing Counsel appearing for respondents 1 to 5. 7. The learned counsel appearing for the petitioner argued that the petitioner is not against his posting in Pune. But, the petitioner's only worry is regarding the spiraling number of COVID-19 patients there. By Exhibit P-5 the Bank has decided to put on hold all transfers and postings till 31.03.2021. It is in these circumstances that the petitioner preferred Exhibit P-3 representation, seeking to defer his posting till 31.03.2021. WP(C).No.15680 OF 2020 **==> picture [22 x 7] intentionally omitted <==** 8. The learned Standing Counsel appearing for the respondents, on the other hand, contended that the petitioner has not raised any allegation of malafides or infraction of any statutory guidelines/policies. According to him, the petitioner is a Scale-V officer who is specifically posted in the Inspection and Audit Department of the Bank, which is an essential service. This year, the Bank had well in advance informed the concerned officers to submit their options for getting transferred to different places to conduct the inspections and audit. The petitioner had opted for Chennai and Bangalore. Nonetheless, the Bank, on an evaluation of the credentials of the officers, found that the petitioner was suitable to be posted in Pune. If the petitioner has no grievance to go to Bangalore or Chennai, he can very well go to Pune also. For the last seven years, the petitioner has been posted at Thiruvananthapuram, despite getting a promotion. The petitioner is very well aware that he is holding a transferable job. The learned Standing Counsel relied on the decision of the Honourable Supreme Court in _**Union of**_ WP(C).No.15680 OF 2020 ..11.. _**India & others v. Muralidharan Menon and another [ (2009) 9 SCC 304]**_ and that of this Court in _**Union of India v. Central Administrative Tribunal [ILR 2004 II 241]**_ **.** He submitted that the writ petition be dismissed. 9. The scope of judicial review in matters relating to transfer and posting of employees, under Article 226 of the Constitution of India, is well settled in a plethora of judicial pronouncements by the Honourable Supreme Court. 10. The Honourable Supreme Court in _**Shilpi Bose and Others v. State of Bihar and Others [(1991) Supp 2 SCC 659]**_ stated thus: "4. In our opinion, the courts should not interfere with a transfer order 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 WPC No.13298 of 2020 22 liable to be transferred from one place to 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 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. The High Court WP(C).No.15680 OF 2020 **==> picture [22 x 7] intentionally omitted <==** over looked these aspects in interfering with the transfer orders." ## 11. In Somesh Tiwari v. Union of India and Others [(2009) 2 SCC 592], the Honourable Supreme Court declared as follows: "20. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia malafide on the part of the authority is proved. Mala fide is of two kinds – one malice in fact and the second malice in law." ## 12. In a recent decision reported in Union of India and another vs Deepak Niranjan Nath Pandit [(2020) 3 SCC 404] the Honourbale Supreme Court stated so: "3. x x x x x x x x x x x x In our view, neither of these reasons can furnish a valid justification for the High Court to take recourse to its extraordinary jurisdiction under Article 226 of the Constitution in passing an order of injunction of this nature. Significantly, the High Court has not even found a prima facie case to the effect that the order of transfer was either mala fide or in breach of law. The High Court could not have dictated to the employer as to where the respondent should be posted during the period of suspension. Individual hardships are matters for the Union of India, as an employer, to take a dispassionate view. (emphasis supplied) ## 13. On an evaluation of the principles laid down in the above-cited precedents, it can be gathered that the Honourable Supreme Court has delineated the two cardinal ingredients to WP(C).No.15680 OF 2020 **==> picture [22 x 9] intentionally omitted <==** be pleaded and proved in a challenge against an order of transfer or posting, i.e., (i) malice/ _mala fide_ and/or (ii) infraction of a statutory provision. 14. The sole point that arises for consideration in this writ petition is whether the petitioner is entitled to get his posting order deferred till 31.03.2021, in light of Exhibit P-5 Guidelines. 15. Admittedly, the petitioner has not pleaded or proved malafides. His sole contention or rather plea is that his posting may be deferred till 31.03.2021, in view of Exhibit P-5 Guidelines, and the alarming number of COVID-19 patients in Pune. 16. The petitioner is a Scale – V Officer of the Bank. Exhibit P-5 Guidelines were published on 20.05.2020. It was subsequent to Exhibit P-5 that Exhibit P-1 options were sought. Pursuant to Exhibit P-5, the petitioner submitted Exhibit P-2 email on 08.06.2020, expressing his willingness to be posted on deputation in the Audit Department in Chennai or Bangalore. The Bank, after a due process of selection, nominated 12 WP(C).No.15680 OF 2020 **==> picture [22 x 9] intentionally omitted <==** officers from thousands of its Officers, working in 23,156 branches under its 17 local head offices, to conduct the inspection and audit in its branches/offices/establishments, to scrutinize their functioning and to assess the potential risk faced. The Bank has found that the petitioner is a competent officer who has the expertise to carry out the core function. 17. It is a known fact that the Government of India has, in a phased manner, unlocked the initial restrictions that were imposed in the National Lockdown in March 2020. Now, we are in August 2020, and we have entered Phase IV of unlocking down. It is quite naïve for the petitioner to now contend that he is apprehensive about joining the Audit Department in Pune, due to the alarming number of COVID-19 patients there. The Honourable Supreme Court in the NEET/JEE examinations case observed thus: "Life cannot be stopped. We have to move ahead with all safeguards and all…….". 18. Undisputedly, banking is an essential service, which has now resumed in a full-fledged manner. The petitioner, who WP(C).No.15680 OF 2020 **==> picture [22 x 9] intentionally omitted <==** does not allege malice or malafides in his deputation and posting, cannot seek shelter under the pandemic. Exhibit P-5 is only a general advisory guideline issued by the Bank to reduce all intra-circle transfers and postings. Moreover, the wordings in Clause (6) of Exhibit P-5 are ― "Stay in LHO/AO/RBO **may** be extended till 31.03.2021". But, Exhibit P-1 option was called for subsequent to Exhibit P-5, and the petitioner submitted Exhibit P-2 option to be posted in Chennai or Bangalore. If that be the case, this Court does not see any reason why the petitioner cannot join Pune. The posting of the petitioner in Pune is an incident of service. Furthermore, in _**Deepak Niranjan Nath Pandit** (supra)_ it has been held that personal hardships are matters to be considered by the employer. Therefore, there is no legal impediment in the Bank posting the petitioner in Pune, to carry out one of its core functions, to meet to the exigencies of service 19. In light of the above findings and the law laid down by the Honourable Supreme Court in the afore-cited decisions, I WP(C).No.15680 OF 2020 **==> picture [22 x 8] intentionally omitted <==** am of the definite view that there is no reason to withhold Exhibit P-4 order till 31.03.2021. The writ petition fails and is hence dismissed. Sd/- **C.S.DIAS JUDGE** **kkj/26.08.2020** WP(C).No.15680 OF 2020 ..17.. ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE COMMUNICATION DATED 05/06/2020 ISSUED BY THE 3RD RESPONDENT EXHIBIT P2 TRUE COPY OF THE REPLY DATED 08/06/2020 SUBMITTED BY THE PETITIONER EXHIBIT P3 THE TRUE COPY OF THE REPRESENTATION DATED 22/06/2020 EXHIBIT P4 THE TRUE COPY OF TRANSFER AND RELIVEING ORDER DATED 24/7/2020. EXHIBIT P5 THE TRUE COPY OF THE GUIDELINES DATED 20.05.2020.**