Remya Sankar v. Indian Overseas Bank and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **FRIDAY ,THE 12TH DAY OF OCTOBER 2018 / 20TH ASWINA, 1940** ## **WP(C).No. 25602 of 2018** ## **PETITIONER/S:** **REMYA SANKAR** **AGED 35 YEARS W/O.RAJEEV, SENIOR MANAGER (SYSTEMS),INDIAN OVERSEAS BANK,RCC, ERNAKULAM.** **BY ADVS. SRI.P.RADHAKRISHNAN (1) SRI.MADHU RADHAKRISHNAN SRI.M.D.JOSEPH SRI.NELSON JOSEPH** ## **RESPONDENT/S:** - **1 INDIAN OVERSEAS BANK REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR,CORPORATE OFFICE, 763 ANNA SALAI,CENTRAL OFFICE, CHENNAI - 600 002.** - **2 ASSISTANT GENERAL MANAGER INDIAN OVERSEAS BANK,HUMAN RESOURCES MANAGEMENT DEPARTMENT,SUPERVISORY SECTION,763, ANNA SALAI, CENTRAL OFFICE,CHENNAI - 600 002.** - **3 CHIEF MANAGER PERSONNEL ADMINISTRATIVE DEPARTMENT,INDIAN OVERSEAS BANK,REGIONAL OFFICE, ERNAKULAM.** **BY ADVS. SMT.K.PARVATHY (P-938) SMT.K.PARVATHY (P-938) SRI.SUNIL SHANKER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.25602/18 ## **JUDGMENT** **The petitioner, who is working as a scale III Senior Manager at Ernakulam is challenging her transfer ordered as per Ext.P5 and the rejection of her representations. The petitioner joined service as Specialist Officer - Information Technology in scale II (Manager) at IT Department Central office, Chennai on 6.12.2010. On promotion as scale III Senior Manager, she was posted in the Regional Computer Centre, Ernakulam Regional Office on 28.6.2015. While continuing there, she availed maternity leave from 1.2.2016 to 31.7.2016, followed by sabbatical leave from 1.8.2016 to 31.12.2016.** **2. While so Ext.P5 order was issued informing her transfer to Tuticorin and directing her to join there on or before 30.7.2018 and that she would automatically stand relieved on 30.07.2018.** **3. Immediately thereupon she submitted Ext.P6(3) representation before the 3[rd] respondent requesting to retain her at Ernakulam, pointing out certain health** W.P.(C) No.25602/18 :3: **issues. She had also pointed out that her husband, who was working at Chennai, had also got a transfer to Ernakulam. That representation was rejected as per Ext.P7 order stating that her service has to be utilised in general line. By Ext.P8 order dated 27.7.2018, the 2[nd] respondent rejected the representations submitted by various officers including the petitioner, against their respective transfers, directing them to report the respective allotted regions. A re-representation Ext.P9(3) was submitted thereafter before the General Manager, pointing out that the petitioner had not completed three years excluding the maternity leave and sabbatical leave and also pointing out the hardship faced by her with her ailing mother, her 2 years old kid and school going kid, etc. She also pointed out that her husband was granted a transfer to the place, where she was working and he joined only the last year.** **4. However that representation was rejected as per Ext.R1(a) produced along with the counter affidavit. It was stated that the petitioner is posted from an excess** W.P.(C) No.25602/18 :4: **region to a shortage region and all medical facilities are available in Tuticorin. It is also stated that she was posted to a region which is the nearest shortage region and transfer is ordered on account of exigency of service. In Ext.R1(a) it is stated that she has completed three years in Ernakulam region.** **5. Petitioner points out that the respondents have reckoned the maternity leave and sabbatical leave she had availed for computing the 3 year period of her stay in Ernakulam. The case of the petitioner is that there are several persons who have completed about nine years and several persons with more than three years and there is no reason to choose her for transfer even before she completed three years, alleging that the transfer is ordered in violation of Ext.P3 transfer policy – in which clause (c) of paragraph 3 provides that ordinarily postings shall be for a period of one term ie. three years; in paragraph 4 it is provided that ordinarily no person should be transferred out of a branch before three years and in case of exigencies the reason is to be recorded in the order by the** W.P.(C) No.25602/18 :5: **appropriate transferring authority and it would be subject to scrutiny at next higher level. The petitioner alleges that the order of transfer does not contain any reason and it is also not subjected to any scrutiny by any higher level officers. It is also pointed out that Ext.P3 also provides that the tenure in a region shall not be more than 9 years in a region, ie. three terms. Clause (c) in paragraph 4 provides that the period spent on temporary transfer to other regions, sabbatical leave and leave availed in excess of privilege leave/sick leave earned during the period of stay in the region, if any, shall be excluded while calculating the tenure in the particular region. Clause (8) provides that as far as possible, spouses shall be accommodated in the same place where the spouse work subject to availability of vacancies. Clause (9) provides that transfer of women officers would be considered as per the Government guidelines as far as possible and bank can accommodate women officers according to the availability of vacancies. Ext.P4 is the Government letter issued by the Department of** W.P.(C) No.25602/18 :6: **Financial Services on 08.08.2014 addressed to the Chairman and Managing Directors of the Public Sector Banks with respect to the transfer of female employees in public sector banks which provides that Government have decided to accommodate as far as possible placement/transfer of married female employee on her request at a place where her husband is stationed or as near as possible to that place or vice versa. The Public Sector Banks were advised to frame a policy on the subject with the approval of the Board incorporating the said decisions in their guidelines.** **6. Respondents filed a counter affidavit stating that the petitioner was transferred based on the policy decision taken by the Bank to shift the Specialist Officers in Senior Cadre in IT department who have completed 5 years in general stream and to post them to the regions where their services are required. It is stated that Bank had shifted 32 Officers in MMG III from IT Department in each Regional Computer Center to general line and posted them to different regions based on the requirement taking due care to accommodate them** W.P.(C) No.25602/18 **==> picture [12 x 8] intentionally omitted <==** **in regions nearer to their existing place of posting to a maximum extent. The respondents have stated that 756 number of requests have been received for posting in Kerala State out of which 102 are for spouse joining, 128 for compassionate reasons, 132 for family reason and 394 for other reasons. In this background the representation received from the petitioner was rejected. It is further stated that no recruitment was possible in the bank, since it was placed under prompt corrective action by the Reserve Bank of India and therefore there was no recruitment in the Bank and there were several retirements and there was dearth of Officers in Tamilnadu region. In the above circumstances the 1[st] respondent took a policy decision to shift the Specialist Officers in IT Department with 5 years service to general stream. It is further stated that the transfer was ordered to meet the administrative exigencies as it was facing shortage of officers.** **7. The petitioner filed a reply affidavit producing Ext.P10 by which the 1[st] respondent Bank** W.P.(C) No.25602/18 :8: **issued notification dated 20.7.2018 for recruitment as Specialist Officers pointing out that there is no bonafides in the statement of the respondents that there is restriction against recruitment. The petitioner also pointed out that one of the officers who was also recruited along with her as Specialist Officer IT during 2010 and who was a scale-III Officer then was retained in Madurai region under general line and therefore the contention of the respondent that there is shortage in Tamilnadu region is incorrect pointing out that officers with about 9 years are retained in the region and she is transferred. The petitioner also pointed out that there was no scrutiny made as against the transfer ordered.** **8. This was followed by additional counter affidavit in which the respondents produced Ext.R1(b) and R1(c) proceedings of the Bank pointing out that the petitioner was informed about the All India transferability as per Ext.R1(b) order of her appointment. It was also stated in this additional counter affidavit that the number of branches in** W.P.(C) No.25602/18 :9: **Ernakulam region is 94 and the number of Officers is 386, giving an officer to branch ratio of 4.78. At the same time in Tuticorin region the number of branches is 91 and the number of Officers is 260 giving an Officer to branch ratio of 2.86 and that in order to take care of the requirement of the Officers to serve in various offices, respondents had to effect transfer. It was stated that Ext.P10 notification was issued pursuant to the advice of the RBI to take steps to set up Cyber Security Operation Centre to ensure continuous surveillance to protect against emerging cyber threats and permission was granted to recruit 20 persons by RBI as per its letter 4.7.2018. It is also stated that the Bank has decided to transfer all Officers who have completed more than 9 years in the same region. It is also reiterated that the transfer of the petitioner was in exigency of service and as per Regulation 47 of the Indian Overseas Bank Officers' Service Regulation all Officers are liable to be transferred. It is also pointed out that the petitioner was granted transfer as per Ext.R1(c) proceedings on the basis of her request.** W.P.(C) No.25602/18 :10: **Further it is pointed out that since the petitioner's transfer was on the basis of the policy decision to shift all the scale III Officers with 5 years service and it was a decision taken by the Managing Director as well as the Chief Executive Officer of the respondent bank, no further scrutiny was necessary. The respondents have also stated that on the basis of the interim order the petitioner was accommodated by creating a supernumerary post.** **9. The petitioner filed additional reply affidavit pointing out that there are vacancies in Ernakulam which is denied by the respondents in additional counter affidavit. Again petitioner filed additional affidavit furnishing the details of Officers in Ernakulam region, who have completed more than three years including scale III Officers. The petitioner points out that there are 30 officers who are retained in Ernakulam beyond three years.** **10. Additional counter affidavit is also filed in answer to this again reiterating the contention that transfer was ordered in implementation of the policy** W.P.(C) No.25602/18 **==> picture [17 x 8] intentionally omitted <==** **decision to shift the Specialist Officers in Senior Cadre in IT Department and that transfer was in exigency of service.** **11. The learned counsel for the petitioner relying on the transfer policy guidelines pointed out that the action of the respondents in transferring her while retaining several persons with more number of years at Ernakulam is arbitrary. The judgment in** _**Home Secretary, U.T of Chandigarh and ors. vs. Darshjit Singh Grewal and Ors. : (1993) 4 SCC 25, Abani Kanta Ray vs. State of Orissa and Ors. : 1995 Supp (4) SCC 16**_ **9 were specifically relied on pointing out that when the prescribed norms are violated the Court under Article 226 of the Constitution of India can interfere with the order of transfer.** **12. In the judgment in** _**Home Secretary, U.T of Chandigarh and ors. vs. Darshjit Singh Grewal and Ors. : (1993) 4 SCC 25**_ **transfer of the students on migration from the University was referred on. The judgment in N** _**.Muniraju vs. the State of Karnataka, Dept of Urban Development and Ors. : ILR 2017 Karnataka**_ W.P.(C) No.25602/18 **==> picture [18 x 8] intentionally omitted <==** _**3956**_ **, the judgment in** _**Kh.Shantibala Devi vs. the State of Manipur and ors. : 2016 (3) GLT 746**_ **were also relied on in support of the contention that the order of transfer, when the petitioner has not completed three years and contrary to the transfer policy Ext.P3, is liable to be interfered with. According to the learned counsel for the petitioner, transfer of the petitioner at a time when she has not completed three years is malice in law and it is arbitrary and therefore interference is required for the same.** **13. On the other hand, the learned Standing Counsel while explaining the circumstances leading to the transfer on the basis of the policy decision, relied on the judgment of the apex court in** _**State of U.P. And Ors vs. Gobardhan Lal and Ors. : AIR 2004 SC 2165**_ **wherein paragraphs 7 and 8 held as follows:** _**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 malafide 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**_ W.P.(C) No.25602/18 :13: _**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 malafides 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 Tribunal cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of malafides 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.**_ **14. On consideration of the contentions on either** **side, it is seen that the grievance of the petitioner is on violation of the provisions contained in transfer policy-Ext.P3, mainly because she has not completed 3 years at Ernakulam. (Now she has two months more to complete three years.) The petitioner has not produced any rule based on which she claims retention though** W.P.(C) No.25602/18 :14: **instances are pointed out that persons with more number of years are retained in Ernakulam even after completion of nine years and more.** **15. From the counter affidavit of the respondents, it is seen that as per Regulation 47 of the Indian Overseas Bank Officers' Service Regulation, all Officers like the petitioner are liable to be transferred. Therefore it cannot be said that the petitioner should not have been transferred. Of course there has been violation of the norms. But those violations are also subject to the right of the Bank to order transfer in exigencies of service. The respondents have stated that the policy decision was taken to shift officers with more than five years service in IT Department to general stream and that there is dearth of officers.** **16. The contention that the transfer has to be interfered with, on the ground that there are persons with more than three years service are retained, can be accepted only if there is a statutory rule which provides for retention of petitioner for a specified** W.P.(C) No.25602/18 :15: **period.** **17. It is settled law that transfers can be interfered with only if it is issued by an incompetent authority or when it is issued in violation of any statutory rule or where it is found vitiated by malafides which should be substantiated by sufficient pleadings and impleading the persons against whom such malafides are alleged, eo nominee as a party. In this case there are only general allegations and petitioner could not substantiate the plea of malafides except by stating that certain persons are not transferred. In view of a catena of decisions of the apex court and this Court, on the judicial review of transfers, including** _**Govardhan's**_ **case the contentions advanced by the petitioner cannot be accepted. None of the judgments relied on by the learned counsel for the petitioner helps her in view of the settled position of law.** **18. Petitioner's complaint is that she is transferred while retaining several persons with more service in the Region.** W.P.(C) No.25602/18 **==> picture [18 x 8] intentionally omitted <==** **This Court does not find any material which warrants interference in the order of transfer. Now that the petitioner is only short of 2 months for completion of 3 years, it is up to the respondents to consider whether the petitioner can be allowed to continue till she completes 3 years. This will not stand in the way of the petitioner in approaching the Managing Director or any higher authority.** **The writ petition is disposed of.** **Sd/P.V.ASHA JUDGE** rkc W.P.(C) No.25602/18 :17: ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF CIRCULAR NO.PER/EST/48/201213.** **EXHIBIT P2 TRUE COPY OF SANCTION OF THE SUBBATICAL LEAVE BY THE 1ST RESPONDENT TO THE PETITIONER DURING HER MATERNITY PERIOD.** **EXHIBIT P3 TRUE COPY OF THE TRANSFER POLICE FOR OFFICERS 2018, ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P4 TRUE COPY OF NOTIFICATION ISSUED BY THE CENTRAL GOVERNMENT DATED 8/8/2014.** **EXHIBIT P5 TRUE COPY OF ORDER OF TRANSFER ISSUED BY THE 2ND RESPONDENT DATED 18/7/2018.** - **EXHIBIT P6 TRUE COPY OF THE REPRESENTATION MADE BY THE PETITIONER THROUGH THE 3RD RESPONDENT DATED 19/7/2018 ALONG WITH ANNEXURES.** - **EXHIBIT P7 TRUE COPY OF THE EMAIL DATED 19/7/2018 BY THE 2ND RESPONDENT.** **EXHIBIT P8 TRUE COPY OF THE REJECTION OF THE REQUEST BY THE 2ND RESPONDENT DATED 27/7/2018.** **EXHIBIT P9 TRUE COPY OF THE RE-PRESENTATION MADE BY THE PETITIONER TO THE 2ND RESPONDENT.** **EXHIBIT P10 TRUE COPY OF THE LAST NOTIFICATIONRECRUIT OF SPECIALSIT OFFICERS FOR INFORMATION SYSTEM DT.20.7.18** - **EXHIBIT P11 TRUE COPY OF ORDER OF THE RELIEVEMENT OF THE PETITIONER AND REGISTERED POSTAL COVER** W.P.(C) No.25602/18 :18: |**EXHIBIT P12**|**TRUE COPY OF THE MAIL WRITTEN BY THE**| |---|---| ||**PETITIONER TO THE 3RD RESPONDENT**| |**RESPONDENTS'**|| |**EXHIBITS**|| |**EXT.R1A**|**TRUE COPY OF OFFICE NOTE WITH ORDER OF**| ||**THE COMPETENT AUTHORITY DT.27.7.18**| |**EXT.R1B**|**TRUE COPY OF THE LETTER DT.6.11.2010**| |**EXT.R1C**|**TRUE COPY OF THE PROCEEDINGS OF THE**| ||**RESPONDENT BANK DT.27.6.15**|