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2019 Supreme(Raj) 192
IN THE HIGH COURT OF RAJASTHAN, JAIPUR BENCH
Alok Sharma, J.
Lokesh Mishra - Appellant
Vs.
The Assistant General Manager HRM, Dena Bank and Ors. - Respondents
S.B. Civil Writ Petition No. 8311 of 2018
Decided On : 23-04-2019
For the Appellant : Pradeep Choudhary.
For the Respondent: Namish Nigotia.
Transfer on promotion is an incident of service and a matter of administrative discretion, and judicial interference is limited to cases of mala fides or breach of statutory rules.
Headnote:
TRANSFER OF BANK OFFICER - BANK'S POLICY - ESTOPPEL - DENA BANK (OFFICERS) SERVICE REGULATIONS, 1976, REGULATION 17(2) - MEMORANDUM OF SETTLEMENT DATED 19.8.2017, CLAUSE 4(H)(III) - INDUSTRIAL DISPUTES ACT, 1947, SECTION 2(P) READ WITH 18(1).
Fact of the Case:
Petitioner, an office bearer of Dena Bank's trade union, challenged his transfer from Jaipur to Sikar branch upon promotion from Clerical to Officer Cadre in JMG Scale-I. He argued that the transfer was malicious due to his union activities, that he should be retained in Jaipur due to his mother's illness and proximity to retirement, and that there were vacancies in Jaipur that could accommodate him.
Finding of the Court:
The court found that the transfer was not mala fide, that the petitioner had accepted the promotion offer with the condition of transfer, and that the Bank's policy required transfer on promotion. It also held that the petitioner's union activities were not a ground for exemption from transfer and that his mother's illness was not serious enough to warrant retention in Jaipur.
Issues: 1. Whether the transfer of the petitioner was mala fide and in violation of any statutory rule? 2. Whether the petitioner's union activities entitled him to exemption from transfer on promotion? 3. Whether the petitioner's mother's illness warranted retention in Jaipur?
Ratio Decidendi: 1. Transfer on promotion is an incident of service and a matter of administrative discretion, and judicial interference is limited to cases of mala fides or breach of statutory rules. 2. The petitioner's acceptance of the promotion offer with the condition of transfer estopped him from challenging the transfer order. 3. The petitioner's union activities were not a ground for exemption from transfer, and his mother's illness was not serious enough to warrant retention in Jaipur.
Final Decision: The writ petition was dismissed, and the stay order dated 19.4.2018 was vacated.
Alok Sharma, J.
1. By this writ petition, the petitioner has challenged the order dated 13.4.2018, whereby consequent upon his promotion from Clerical grade to Officer Cadre in JMG Scale in the Dena Bank (hereafter 'the Bank'), he has been posted to Sikar Branch of the Bank.
2. Counsel for the petitioner submitted that vide letter dated 28.3.2018, the petitioner was offered promotion from clerical cadre to officer cadre. Thereon he gave his acceptance for being promoted as JMG Scale-I on 31.3.2018. Resultantly, the petitioner on his promotion as Officer in JMG Scale, and posted in Sikar Branch of Dena Bank. The petitioner's case is that he submitted a representation to the Bank authorities to retain him at Jaipur for the reasons of trade unions' requirements as he is an office bearer of the Union and also had a personal reason for being retained at Jaipur where his old ailing mother resides - but of no avail. Hence the writ petition.
3. Counsel for the petitioner Mr. Pradeep Choudhary submitted that the petitioner is an office bearer in the trade union of the Dena Bank. Being a General Secretary of the Union he had been raising the grievance of the members of the Union and participated in the negotiations too in that regard with the bank Management. In that capacity, he has filed petitions/applications against the bank authorities. As legitimate part of union activities, strike notices were also given to the bank management. All the aforesaid acts by the petitioner as part of employees' union activities have occasioned the bank's malice which has occasioned in the petitioner's transfer on promotion to the officer cadre Grade-I to Sikar. Counsel for the petitioner submitted that the petitioner has already completed about 58½ years of age and has about 1½ years left to his retirement. In this view of the matter, he should not have been transferred and been allowed to prepare for post retiral life. In support of the submission, reliance has been place on the judgment of the Division Bench in the case of Dr. (Smt.) Pushpa Mehta Versus Rajasthan Civil Services Appellate Tribunal & Ors. - 2000 (2) WLC (Raj.) 725. Counsel further submitted that about half a dozen vacancies of Scale I Cadre officers are available in Jaipur, but officers in the higher cadre have been posted there, where in-fact the petitioner ought to have been adjusted on one of them.
4. Reply to the writ petition has been filed. It has been submitted that while initiating the process of promotion of employees from the clerical cadre to Officers cadre in JMG Scale-I, a Memorandum of Settlement under Section 2(p) readwith 18 (1) of the Industrial Disputes Act, 1947 was arrived at between the Management of Dena Bank and All India Dena Bank Employees on 19.8.2017. As per clause 4(h)(iii) of the Memorandum, the Bank would retain the employees promoted under Seniority - cum - Merit Channel in the same zone to the extent of vacancies notified for that zone and the promotee officers in excess of the required number would be posted out of the zone and as far as possible in the nearest/adjoining zone in order of their preference depending upon the number of vacancies to be filled up from seniority cum merit and availability of vacancies. Counsel further submitted that Regulation 17(2) of the Dena Bank (Officers) Service Regulations, 1976 (hereafter 'the Regulations of 1976') provides that the said regulations shall apply to promotions of any category of employees to the JMG. In this view of the matter, the petitioner on being promoted to the post of JMG Scale-I was bound with the conditions stipulated in the Regulations of 1976. Counsel submitted that as per Memorandum of Settlement dated 19.8.2017, the petitioner has remained even on his transfer in Jaipur Zone only, as the Sikar Branch also falls in the Jaipur zone. On the averment of the petitioner with regard to illness of his mother, it has been submitted that discharge ticket of the petitioner's mother shows that she
