Sneha S v. Kerala Gramin Bank (WA Nos. 306 of 2022 & 302 of 2022)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **WEDNESDAY, THE 23[RD] DAY OF MARCH 2022 / 2ND CHAITHRA, 1944** **WA NO. 306 OF 2022** **AGAINST THE JUDGMENT DATED 10.01.2022 IN WP(C)NO.22642/2021 OF HIGH** ## **COURT OF KERALA** ## **APPELLANT/PETITIONER:** **SNEHA S,AGED 34 YEARS,W/O. JITHIN .A.S, OFFICE ASSISTANT, KERALA GRAMIN BANK, KUNNIKODE BRANCH, KOLLAM DISTRICT, PIN-691 531, RESIDING AT 'SNEHAMANJARI', PADINJATTINKARA, ETC P.O., KOTTARAKKARA, KOLLAM DISTRICT, PIN-691 531 BY ADVS. ENOCH DAVID SIMON JOEL S.SREEDEV RONY JOSE LEO LUKOSE SUZANNE KURIAN CIMIL CHERIAN KOTTALIL** ## **RESPONDENTS/RESPONDENTS:** - **1 KERALA GRAMIN BANK HEAD OFFICE, MALAPPURAM, PIN-676 505, REPRESENTED BY ITS CHAIRMAN** - **2 THE CHAIRMAN, KERALA GRAMIN BANK, HEAD OFFICE, MALAPPURAM, PIN-676 505** - **3 THE CHIEF MANAGER, KERALA GRAMIN BANK, KGB TOWES, A.K.ROAD, MALAPPURAM DISTRICT, PIN-676 505** - **4 THE GENERAL MANAGER, H.R.DEPARTMENT, KERALA GRAMIN BANK, HEAD OFFICE, MALAPPURAM, PIN-676 505** - **5 THE BRANCH MANAGER,** **KERALA GRAMIN BANK, KUNNIKODE BRANCH, KOLLAM DISTRICT,PIN-691 531** - **6 THE BRANCH MANAGER,** **KERALA GRAMIN BANK, KADAKKAL BRANCH, KOLLAM DISTRICT,PIN-691 536** WA Nos.306 & 302 of 2022 2 **7 THE BRANCH MANAGER, MANJERI BRANCH, KERALA GRAMIN BANK, MANJERI P.O., MALAPPURAM DISTRICT, PIN-676 122 BY ADVS. M.GOPIKRISHNAN NAMBIAR K.JOHN MATHAI JOSON MANAVALAN KURYAN THOMAS PAULOSE C. ABRAHAM RAJA KANNAN** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA Nos.306 & 302 of 2022 3 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM WEDNESDAY, THE 23RD DAY OF MARCH 2022/2ND CHAITHRA, 1944** **WA NO. 302 OF 2022** **AGAINST THE JUDGMENT 10.01.2022 IN WP(C)NO.18208/2021 OF HIGH COURT OF KERALA** **APPELLANT/PETITIONER:** **SNEHA S,AGED 34 YEARS,W/O.JITHIN A.S, OFFICE ASSISTANT, KERALA GRAMIN BANK, KUNNIKODE BRANCH, KOLLAM DISTRICT, PIN - 691531, RESIDING AT 'SNEHAMANJARI', PADINJATTINKARA, ETC P.O, KOTTARAKKARA, KOLLAM DISTRICT, PIN - 691531.** **BY ADVS. ENOCH DAVID SIMON JOEL S.SREEDEV RONY JOSE SUZANNE KURIAN CIMIL CHERIAN KOTTALIL LEO LUKOSE** ## **RESPONDENTS/RESPONDENTS:** - **1 KERALA GRAMIN BANK HEAD OFFICE, MALAPPURAM, PIN - 676505, REPRESENTED BY ITS CHAIRMAN.** - **2 THE CHAIRMAN, KERALA GRAMIN BANK, HEAD OFFICE, MALAPPURAM, PIN - 676505.** - **3 THE CHIEF MANAGER KERALA GRAMIN BANK, KGB TOWERS, A.K. ROAD, MALAPPURAM DISTRICT, PIN - 676505.** - **4 THE GENERAL MANAGER H.R. DEPARTMENT, KERALA GRAMIN BANK. HEAD OFFICE, MALAPPURAM, PIN - 676505.** - **5 THE BRANCH MANAGER KERALA GRAMIN BANK, KUNNIKODE BRANCH, KOLLAM DISTRICT, PIN – 691531.** WA Nos.306 & 302 of 2022 4 **6 THE BRANCH MANAGER. KERALA GRAMIN BANK, KADAKKAL BRANCH, KOLLAM DISTRICT, PIN - 691536. 7 THE BRANCH MANAGER, MANJERI BRANCH, KERALA GRAMIN BANK, MANJERI P.O, MALAPPURAM DISTRICT, PIN - 676122. BY ADVS. M.GOPIKRISHNAN NAMBIAR K.JOHN MATHAI JOSON MANAVALAN KURYAN THOMAS PAULOSE C. ABRAHAM RAJA KANNAN** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA Nos.306 & 302 of 2022 5 ## **ALEXANDER THOMAS & VIJU ABRAHAM, JJ.** **................................................................. W.A.No.306 of 2022** _[Arising out of judgment dated 10.01.2022 in W.P.(C) No.22642 of 2021] &_ ## **W.A.No.302 of 2022** _[Arising out of judgment dated 10.01.2022 in W.P.(C) No.18208 of 2021]_ **.................................................................** Dated this the 23[rd] day of March, 2022 ## **JUDGMENT** ## **Alexander Thomas, J.** The matters in these two Writ Appeals are intrinsically connected and hence these appeals are disposed of on the basis of this common judgment. 2. Both the Writ Appeals arise out of common judgment in two W.P.(C)s filed by the same party. The respective sole appellant in the W.A. is the respective sole petitioner in the W.P. (C) concerned. The orders under challenge in W.P.(C) No.18208 of 2021 [which has led to W.A.No.302 of 2022] are the one at Ext.P1 order of transfer and Ext.P4 subsequent order cancelling the favourable transfer order given to the appellant. Whereas, the order under challenge in W.P.(C) No.22642 of 2021 [which has led to W.A.No.306 of 2022] is one at Ext.P7, whereby the appeal filed by the writ petitioner-appellant against the aforesaid Ext.P4 order, has been dismissed. Exts.P1 to P5 are the five documents WA Nos.306 & 302 of 2022 6 produced in the first W.P.(C), viz., W.P.(C) No.18208 of 2021. 3. The aforesaid Exts.P1 to P5 produced in the first W.P. (C) as well as Ext.P6 to P9, are the documents produced in the latter W.P.(C) No.22642 of 2021. So also, along with the reply affidavit filed in the latter W.P.(C) No.22642 of 2021, additional documents as Exts.P10 to P14 have been produced. In other words, Exts.P1 to P5 are documents, which are marked in common to both W.P.(C)s. Hence, for the sake of convenience, the documents as produced in the latter W.P.(C) No.22642 of 2021 will be referred to in this judgment and hence, W.A.No.306 of 2022 [which has arisen out of the latter W.P.(C) No.22642 of 2021] will be taken as the lead case for convenience. 4. The appellant-petitioner is a lady employee in the clerical cadre of the respondent Kerala Gramin Bank, now working in the category of “Office Assistant/Office Attendant”. Her husband is having a permanent employment in Kollam and at the relevant time she was posted in Kunnikode Branch at Kollam. At the relevant time, she had one child and she was pregnant. The appellant was served with the impugned Ext.P1 transfer order dated 05.08.2020 issued by the respondents whereby she was ordered to be transferred and posted from the current station at Kunnikode Branch, Kollam to Manjeri in Malappuram District. WA Nos.306 & 302 of 2022 7 Since she was facing pregnancy related complications and other health issues, she was then constrained to go on sabbatical leave, as is evident from Ext.P2. The appellant has also submitted Ext.P5 representation dated 09.08.2020 before the respondents, pointing out the great difficulties and hardships she will have to face if she is transferred from Kollam district to Malappuram district. This was followed up with another request made by her on 02.12.2020, highlighting her medical condition and also pointing out that sufficient vacancies are available in Kollam district. By that time, in view of the maternity leave, she had not joined at Manjeri, Malappuram district, in pursuance of Ext.P1. Later her leave period expired on 11.02.2021. Hence, since her request for transfer and posting back to Kollam district was not considered favourably, she was constrained to give yet another application to extend the sabbatical leave for a period of two years which was granted for one year. Later application for general transfer was called for by the respondent bank authorities. Thereupon the petitionerappellant has submitted Ext.P13 representation dated 26.04.2021 _[produced at page 140 of the paper book in W.A.No.306 of 2022]_ to the respondents seeking for a transfer within Kollam district and the said request in Ext.P13 dated 26.04.2021 has been acknowledged and recommended as per Ext.P14 dated 26.04.2021 _[see page 142 of_ WA Nos.306 & 302 of 2022 8 _the paper book in W.A.No.306 of 2022]_ . Subsequently, Ext.P3 general transfer order dated 29.07.2021 was issued, wherein the petitioner has been ordered to be transferred and posted to Kadakkal in Kollam District. Later, she has been served with Ext.P4 order dated 03.08.2021 stating that the favourable transfer given to her as per Ext.P3 general transfer proceedings will stand cancelled. Aggrieved by Ext.P4 cancellation order, the appellant was constrained to submit Ext.P5 appeal dated 09.08.2021, in terms of the guidelines, before the respondent Chairman of the bank. It is at that stage that the appellant has filed the former W.P.(C) No.18208 of 2021. The learned Single Judge passed an interim order on 07.09.2021, in the former W.P.(C) No.18208 of 2021, directing that the competent Appellate Authority may consider and pass orders on the appellant’s Ext.P5 appeal memo dated 09.08.2021 within the time limit stipulated therein. The appellant’s request was for cancellation of Ext.P4 so that, Ext.P3 transfer order will stand revived and thereby she could secure the transfer and posting to Kadakkal in Kollam district. She also made her preferential claims in terms of Clause 16(1)(b) & (f) of Annexure-A2 transfer guidelines. It is later that the respondent authorities have passed the impugned Ext.P7 order dated 23.09.2021, rejecting Ext.P5 appeal filed by the appellant and thus WA Nos.306 & 302 of 2022 9 upholding Ext.P4 order cancelling Ext.P3 transfer order. The consequence of Ext.P7 is that the earlier transfer order, given in favour of the petitioner at Ext.P3, transferring her to Kollam district, has been cancelled as per Ext.P4, which has been upheld in Ext.P7 appellate order. The appellant-petitioner, without amending the former W.P.(C), has sought to separately challenge Ext.P7 appellate order in the latter W.P.(C) No.22642 of 2021. Both the W.P.(C)s were heard together and disposed of by the learned Single Judge as per the impugned common judgment rendered on 10.01.2022. The learned Single Judge has taken the view that no interference is called for in the matter, as the issue relates to a transfer order. Further, the learned Single Judge has observed that, taking note of the health issues of the appellant, the respondents may extend the sabbatical leave given to her. It is the abovesaid common judgment in the above W.P.(C)s that is under challenge in the present intra-court appeals filed under Section 5(i) of the Kerala High Court Act. 5. Heard Sri.S.Sreedev, learned counsel appearing for the appellant in these two cases and Sri.M.Gopikrishnan Nambiar, learned Standing Counsel for the Kerala Gramin Bank appearing for the respondents in these W.As. 6. The respondents have filed counter affidavits in both WA Nos.306 & 302 of 2022 10 the W.P.(C)s. The main grounds taken by them to justify the impugned Ext.P4 order are that, firstly, the appellant-petitioner has not challenged the adverse transfer order at Ext.P1, at the appropriate time, secondly, that Ext.P3 transfer order was issued in favour of the petitioner-appellant erroneously, in as much as the appellant-petitioner had never made a request in that regard to issue such an order in the nature of Ext.P3 in her favour and thirdly, that the appellant had already been transferred from Kollam district to Malappuram district as per Ext.P1 which stands. It appears that there is an implication that none of the incumbents, who were covered by the first transfer order at Ext.P1, were transferred by the subsequent general transfer order at Ext.P3. The first ground does not appear to be sustainable in as much as the petitioner has got a specific case that she had given her objections to Ext.P1 transfer order, by filing a representation on 10.08.2020 and that she had followed it up with another request on 02.12.2020. Be that as it may, it is a common ground that the petitioner had submitted Ext.P2 application dated 01.01.2021 seeking leave and therein she had stated that in view of pregnancy related complications and other health issues, she is not in a position to join the newly transferred station at Manjeri, Malappuram district, etc. So, the substance of the objections and WA Nos.306 & 302 of 2022 11 her grievances have been duly intimated to the respondent Bank authorities, as can be seen from a reading of Ext.P2. The second objection is that, incumbents, who have been transferred as per Ext.P1, could not be given a transfer in terms of Ext.P3 general transfer order. Yet another contention was taken in the pleadings by the respondents that the petitioner had never given any representation or request that she should be transferred back to Kollam district, prior to the issuance of Ext.P3 general transfer order. These objections also appear to be plainly untenable for the simple reason that, 11 other employees in the same cadre of the appellant, who were covered by Ext.P1 general transfer order were also subsequently given re-transfers as per Ext.P3 general transfer order issued subsequently. The names of the above 11 employees have been enumerated in the reply affidavit filed by the petitioner in the latter W.P.(C) _[as can be seen from a reading of page No.134 of the paper book of W.A.No.306 of 2022]_ . The 11 employees mentioned therein are as follows: |_“LIST OF 11 CANDIDATES WHO NOT JOINED AS PER_<br>_BULLETIN_<br>_4/2020 & AGAIN GOT TRANSFER_<br>_ACCORDING TO BULLETIN_<br>_5/2021 (ACCORDING TO BULLETIN_<br>_4/2020 & BULLETIN 5/2021)_<br>_Sl.No._<br>_Name_<br>_STAFF No._<br>_1_<br>_HEMA BABY_<br>_4480_<br>_2_<br>_SNEHA. S_<br>_4940_<br>_3_<br>_LIJA. GOPI. V.G._<br>_5000_<br>_4_<br>_ANUPAMA KRISHNAN. G_<br>_5531_<br>_5_<br>_SHILPA. G. NAIR_<br>_5597_<br>_6_<br>_ASWATHI. K_<br>_5617_|_“LIST OF 11 CANDIDATES WHO NOT JOINED AS PER_<br>_BULLETIN_<br>_4/2020 & AGAIN GOT TRANSFER_<br>_ACCORDING TO BULLETIN_<br>_5/2021 (ACCORDING TO BULLETIN_<br>_4/2020 & BULLETIN 5/2021)_<br>_Sl.No._<br>_Name_<br>_STAFF No._<br>_1_<br>_HEMA BABY_<br>_4480_<br>_2_<br>_SNEHA. S_<br>_4940_<br>_3_<br>_LIJA. GOPI. V.G._<br>_5000_<br>_4_<br>_ANUPAMA KRISHNAN. G_<br>_5531_<br>_5_<br>_SHILPA. G. NAIR_<br>_5597_<br>_6_<br>_ASWATHI. K_<br>_5617_|_“LIST OF 11 CANDIDATES WHO NOT JOINED AS PER_<br>_BULLETIN_<br>_4/2020 & AGAIN GOT TRANSFER_<br>_ACCORDING TO BULLETIN_<br>_5/2021 (ACCORDING TO BULLETIN_<br>_4/2020 & BULLETIN 5/2021)_<br>_Sl.No._<br>_Name_<br>_STAFF No._<br>_1_<br>_HEMA BABY_<br>_4480_<br>_2_<br>_SNEHA. S_<br>_4940_<br>_3_<br>_LIJA. GOPI. V.G._<br>_5000_<br>_4_<br>_ANUPAMA KRISHNAN. G_<br>_5531_<br>_5_<br>_SHILPA. G. NAIR_<br>_5597_<br>_6_<br>_ASWATHI. K_<br>_5617_|_“LIST OF 11 CANDIDATES WHO NOT JOINED AS PER_<br>_BULLETIN_<br>_4/2020 & AGAIN GOT TRANSFER_<br>_ACCORDING TO BULLETIN_<br>_5/2021 (ACCORDING TO BULLETIN_<br>_4/2020 & BULLETIN 5/2021)_<br>_Sl.No._<br>_Name_<br>_STAFF No._<br>_1_<br>_HEMA BABY_<br>_4480_<br>_2_<br>_SNEHA. S_<br>_4940_<br>_3_<br>_LIJA. GOPI. V.G._<br>_5000_<br>_4_<br>_ANUPAMA KRISHNAN. G_<br>_5531_<br>_5_<br>_SHILPA. G. NAIR_<br>_5597_<br>_6_<br>_ASWATHI. K_<br>_5617_| |---|---|---|---| ||_Sl.No._|_Name_|_STAFF No._| ||_1_|_HEMA BABY_|_4480_| ||_2_|_SNEHA. S_|_4940_| ||_3_|_LIJA. GOPI. V.G._|_5000_| ||_4_|_ANUPAMA KRISHNAN. G_|_5531_| ||_5_|_SHILPA. G. NAIR_|_5597_| ||_6_|_ASWATHI. K_|_5617_| WA Nos.306 & 302 of 2022 12 |f 2022|12|| |---|---|---| |_7_|_SAJI JOHN_|_5874_| |_8_|_RINU. S.RAMACHANDRAN_|_5900_| |_9_|_ANU. R. NAIR_|_5943_| |_10_|_RENJUSHA PRABHAKARAN_|_6127_| |_11_|_SHENIL. N_|_6340_| 7. Further, the other objection is that the appellantpetitioner had never given any request or representation before the issuance of Ext.P3 general transfer order. The learned Single Judge has specifically noted in page 6 of the impugned judgment that the petitioner had submitted an application on 13.04.2021 for making such a request. That apart, the petitioner has also produced a document as Ext.P13 in the latter W.P.(C), which is a representation dated 26.04.2021 _[produced at page 140 of the paper book of W.A.No.306 of 2022]_ , wherein she had made a specific request that she should be considered for transfer and posting back in a vacancy anywhere in Kollam district, considering her serious health issues. Ext.P13 dated 26.04.2021 has also been duly acknowledged and recommended as per Ext.P14 dated 26.04.2021 _[see page 142 of the paper book of W.A.No.306 of 2022]_ . Hence the abovesaid pleas and objections raised by the respondents would also fall to the ground. 8. The appeal filed by the petitioner, as per Ext.P5, seeking for cancellation of Ext.P4 and restoration of Ext.P3, has WA Nos.306 & 302 of 2022 13 also been rejected by the Appellate Authority as per Ext.P7 order. In the impugned Ext.P7 appellate rejection order, the very same ground is stated, in as much as the objection therein is that the petitioner has already been transferred to Manjeri as per Ext.P1 and therefore, there is no question of giving her another transfer and posting in the subsequent general transfer, at Ext.P3. The sustainability of the abovesaid ground of rejection has already been dealt with herein above and therefore, we have no hesitation to hold that the said ground of rejection in Ext.P7 appellate order is also not tenable. We will make it clear at the outset that we are fully conscious that the matter is essentially in the domain of the transfer and posting of an incumbent, but it has to be borne in mind that the request has been made by a lady employee, who is hardly in her mid-thirties, whose husband is having a permanent employment in Kollam and who was earlier having a single child and was later pregnant. Further that there is no dispute that she has already suffered three miscarriages, as can be seen from Ext.P12. The learned Single Judge has clearly stated in para 4 of the impugned judgment that it is evident by Exts.P10, P11 & P12 that the petitioner had undergone two cesarean sections and one abortion in the last two years and was advised to avoid pregnancy, prolonged travel and strenuous exercise for the coming two years . WA Nos.306 & 302 of 2022 14 It is pointed out by Sri.S.Sreedev, learned counsel appearing for the appellant that, as a matter of fact, the petitioner had to suffer three miscarriages, including an infra-uterine fetal demise, as evident from Ext.P12. Further, the learned Single Judge has noted that adding to her woes, the petitioner had to undergo treatment for postpartum depression following pregnancy loss. Ext.P12 would also reveal that she was then pregnant by six weeks as on 15.12.2021. The learned Single Judge has subsequently noted that the petitioner had suffered three abortions, including infra-uterine fetal demise at eight months and that she has been advised to avoid prolonged travel and to undergo check-ups and there was a need for constant family support throughout the period of pregnancy, etc. 9. It is true that, as strongly contended by the learned Standing Counsel for the respondents, that the matter relating to the transfer and posting of the appellant and other employees are covered by Annexure-A2 guidelines which are not statutory, but in the nature of executive guidelines. The relevant portion of Annexure-A2 guidelines is Clause 3 _[given at page 55 of the paper book of W.A.No.306 of 2022],_ which says that the transfer policy for workmen-employees of the bank will be within the broad guidelines approved by the Government of India from time to WA Nos.306 & 302 of 2022 15 time. Ext.P9 is a communication dated 07.10.2014 issued by the Union Government in the Ministry of Finance [Department of Financial Services], addressed to the chairpersons of all Regional Rural Banks, including the respondent Kerala Gramin Bank, which deals with the transfer of female employees in Regional Rural Banks, so as to minimize their hardships. The contents of Ext. P9 _[given on page 115 of the paper book of W.A.No.306 of 2022]_ are as follows: _“It has been brought to the notice of the Department that female employees of Regional Rural Banks (RRBs), married or unmarried, when placed/transferred away from their husband or parents, as the case may be, to distant locations face a genuine hardship and develop a feeling of insecurity. Keeping in view, it has been decided:_ - _(i) 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; and_ - _(ii) to accommodate as far as possible placement/transfer of unmarried female employee, on her request, at a place where her parents are stationed or as near as possible to that place._ _RRBs are, therefore advised to frame a policy on the subject with the approval of their Board suitably incorporating the above and take immediate action for implementation and compliance. Pending requests may also be considered under these guidelines. A line of confirmation may be sent to this Department immediately after adoption of the policy by the Board of the RRB.”_ 10. A reading of the aforementioned Ext.P9 issued by none other than the competent authority of the Union Government in the Ministry of Finance, which are applicable to the respondent Bank, makes it clear that the said Banks should take cognizance of WA Nos.306 & 302 of 2022 16 the fact that female employees of Regional Rural Banks, married or unmarried, when placed/transferred away from their husbands or parents, as the case may be, to different locations, face genuine hardships and develop a feeling of insecurity and that for that purpose, (i) they should be accommodated, as far as possible, placement and transfer of married female employee, on her request, at a place where her husband is in station or as near as possible to that place or _vice versa_ , etc. and (ii) they should be accommodated as far as possible placement/transfer of unmarried female employee, on her request, at a place where her parents are in station or as near as possible to that place. Further, the Union Government has directed, as per Ext.P9, that the Regional Rural Banks should frame policy on the subject, with the approval of the Board, suitably incorporating the above and by taking remedial action for implementation and compliance and that pending requests may also be considered under the above guidelines and that follow-up action should be confirmed by the banks to the Union Government. There is no dispute that the petitioner’s husband is having a permanent job at Kollam and now she is having a child aged two years or so and she is stated to be now in the 17[th] week of a high-risk pregnancy. Further, we are also apprised that the Apex Court has rendered certain guidelines and WA Nos.306 & 302 of 2022 17 observations, that the transferring authority should have a compassionate approach to deal with the transfer request of women employees. Paras 43, 48 & 51 of the judgment dated 10.03.2022 rendered by the Apex Court in the case _**SK Nousad Rahaman & Ors. v. Union of India & Ors.**_ , arising out of _**Civil Appeal No.1243 of 2022 & connected Civil Appeals**_ , would be pertinent in this regard and the same are as follows: _“43. The realm of policy making while determining the conditions of service of its employees is entrusted to the Union for persons belonging to the Central Civil Services and to the States for persons belonging to their civil services. This Court in the exercise of judicial review cannot direct the executive to frame a particular policy. Yet, the legitimacy of a policy can be assessed on the touchstone of constitutional parameters. Moreover, short of testing the validity of a policy on constitutional parameters, judicial review can certainly extend to requiring the State to take into consideration constitutional values when it frames policies. The State, consistent with the mandate of Part III of the Constitution, must take into consideration constitutional values while designing its policy in a manner which enforces and implement those values._ _xxx xxx xxx_ _xxx xxx xxx_ _48. This Court has spoken about the systemic discrimination on account of gender at the workplace which encapsulates the patriarchal construction that permeates all aspects of a woman's being from the outset, including reproduction, sexuality and private choices, within an unjust structure. The OMs which have been issued by DoPT from time to time recognized that in providing equality and equal opportunity to women in the workplace of the State, it becomes necessary for the Government to adopt policies through which it produces substantive equality of opportunity as distinct from a formal equality for women in the workplace. Women are subject to a patriarchal mindset that regards them as primary caregivers and homemakers and thus, they are burdened with an unequal share of family responsibilities. Measures to ensure substantive equality for women factor in not only those disadvantages which operate to restrict access to the workplace but equally those which continue to operate once a woman has gained access to the workplace. The impact of gender in producing unequal outcomes continues to operate beyond the point of access. The true aim of achieving substantive equality must be fulfilled by the State in recognizing the persistent patterns of discrimination against women once they are in the work place. The DoPT OMs dated 3 April 1986, 23 August 2004, 8 July 2009 and 30 September_ WA Nos.306 & 302 of 2022 18 _2009 recognised the impact of underlying social structures which bear upon the lives of women in the work place and produce disparate outcomes coupled with or even without an intent to discriminate. The provision which has been made for spousal posting is in that sense fundamentally grounded on the need to adopt special provisions for women which are recognized by Article 15(3) of the Constitution. The manner in which a special provision should be adopted by the State is a policy choice which has to be exercised after balancing out constitutional values and the needs of the administration. But there can be no manner of doubt that the State, both in its role as a model employer as well as an institution which is subject to constitutional norms, must bear in mind the fundamental right to substantive equality when it crafts the policy even for its own employees._ _xxx xxx xxx xxx xxx xxx 51. The State in the present case has been guided by two objectives: first, the potential for abuse of ICTs and second, the distortion which is caused in service leading to plethora of litigation. The State while formulating a policy for its own employees has to give due consideration to the importance of protecting family life as an element of the dignity of the person and a postulate of privacy. How a particular policy should be modulated to take into account the necessities of maintaining family life may be left at the threshold to be determined by the State. In crafting its policy however the State cannot be heard to say that it will be oblivious to basic constitutional values, including the preservation of family life which is an incident of Article 21.”_ 11. There is no dispute that, though the appellant was initially served with Ext.P1 transfer order, she had pointed out her difficulties to the respondent authorities and she was even permitted to remain on sabbatical leave due to her health complications. So also, there is no dispute that it is none other than the respondents who have issued Ext.P3 transfer order, whereby the petitioner has been ordered to be transferred and posted back to a station in Kollam district. We have already held that Ext.P4 order, cancelling Ext.P3 order, has been issued on untenable and unsustainable grounds. So also, Ext.P7 appellate order, rejecting the petitioner’s appeal, whereby Ext.P4 WA Nos.306 & 302 of 2022 19 cancellation order has been upheld and the cancellation of Ext.P3 has been restored, is also on the basis of untenable grounds, going by a reading of the said order. 12. When the matter had come up for consideration, on quite a few occasions, we have repeatedly conveyed our concern to the respondent bank authorities that at least at the interlocutory stage, the respondents should temporarily accommodate the petitioner anywhere in Kollam district. The said concern of the Bench has not been properly responded to by the respondent authorities and they filed a statement now stating that there are no vacancies in Kollam district, and that the authorized strength of personnel in each branch will have to be re-assessed, etc. We have no hesitation to hold that the grounds urged by the respondents in support of Ext.P4 cancellation order and Ext.P7 appellate rejection order are not sustainable, going by the versions given by none other than the respondents, as stated in the above impugned orders. The factual aspects for arriving at such a conclusion have been given in detail in the earlier paragraphs. The matter would require serious re-consideration at the hands of the top functionaries of the Bank. The guidelines and norms issued by the Union Government are also to be adhered to by the bank as can be seen from a reading of Ext.P9 issued by none other than the WA Nos.306 & 302 of 2022 20 Union Government. It is true that Annexure-A2 transfer guidelines are not statutory. But, even going by the norms of the respondents, they are bound to follow the norms and guidelines issued by the Union Government from time to time. We are pained and agonized by the conduct of the respondents, in taking a stand of this nature, though we had given sufficient and reasonable time to the respondents. We have before us, an appellant, who is a lady in her mid-thirties, who has already suffered more than three miscarriages including an infra-uterine fetal demise and also undergone two cesarean operations, and she has been advised to avoid prolonged travel. Even without any court intervention, it is only reasonable that the respondent authorities themselves respond to the situation in a conscientious manner. 13. We have already held that the impugned orders at Ext.P4, P7, etc. are not sustainable, even going by the grounds stated therein. Accordingly, the impugned orders at Exts.P4 & P7 will stand quashed and set aside. 14. The matter will stand remitted to the 2[nd] respondent Chairman of the Kerala Gramin Bank for consideration and decision afresh. Since copies of the representations dated 10.08.2020 and 02.12.2020, referred to in page 5 of the impugned judgment of the learned Single Judge, have not WA Nos.306 & 302 of 2022 21 been produced in this proceedings, we would direct that the appellant submit a comprehensive representation in the matter before the 2[nd] respondent Chairman of the Kerala Gramin Bank, along with a copy of this judgment and it may be filed through the proper channel and an advance copy may be sent immediately to the 2[nd] respondent Chairman. The said representation will have to be considered by the 2[nd] respondent Chairman afresh, taking note of the findings and observations made by us hereinabove, especially relating to the untenability of the grounds of rejection stated in Exts.P4 & P7 and the other aspects mentioned hereinabove and also taking note of the observations and guidelines rendered by the Apex Court in the aforesaid judgment. We hope and trust that the 2[nd] respondent Chairman, who is the topmost functionary of the Bank, will rise up to the occasion and will take due note of the hardships and difficulties faced by the appellant, who is a lady employee and her request for being posted back to Kollam may be considered with all the compassion it deserves. Until an order is passed by the 2[nd] respondent Chairman on the above matters, the respondents shall immediately temporarily accommodate the petitioner in any station in Kollam, which would be subject to the final outcome of WA Nos.306 & 302 of 2022 22 the decision to be taken by the 2[nd] respondent Chairman as above. The abovesaid crucial aspects have not been duly taken note of in the rendering of the impugned judgment in the above cases. Accordingly, the impugned common judgment dated 10.01.2022, rendered by the learned Single Judge dismissing W.P.(C) Nos.18208 & 22642 of 2021, will stand set aside. With these observations and directions, the above Writ Appeals will stand finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** Sd/- ## **VIJU ABRAHAM, JUDGE** cks WA Nos.306 & 302 of 2022 23 ## **APPENDIX OF WA 306/2022** |**PETITIONER ANNEXURES**|**PETITIONER ANNEXURES**| |---|---| |**Annexure A1**|**A TRUE COPY OF THE KERALA GRAMIN BANK**| ||**(OFFICERS AND EMPLOYEES) SERVICE**| ||**REGULATIONS, 2013**| |**Annexure A2**|**A TRUE COPY OF THE TRANSFER POLICY OF**| ||**THE 1ST RESPONDENT**|