Smt. Rekha Chandra vs National Bank For Agriculture & ...
2013 Latest Caselaw 47 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            W.P. (C) No.2673/2012

%                                                         January 04, 2013
SMT. REKHA CHANDRA                                   ...... Petitioner
                 Through:                Ms. Nanda Devi Deka, Mr.
                                         C.P.Rajwar and Mr. Aman Panwar,
                                         Advocates.


                            VERSUS

NATIONAL BANK FOR AGRICULTURE & RURAL DEVELOPMENT
AND ORS
                                     ...... Respondents

Through: Mr. Rakesh Munjal, Sr. Adv. with Mr. Sudershan Rajan and Mr. Rajat Agnihotri, Advocates for R-1 to R-4.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This case was partly argued yesterday on behalf of the petitioner by

her senior counsel. During the course of hearing, a proposal came up for

bringing about of a compromise formula to dispose of this writ petition by

which the petitioner had challenged her transfer order dated 20.4.2012

transferring the petitioner to Goa, Regional Office.

2. The compromise solution which was proposed was in view of

the assertion made on behalf of the petitioner that as per the policy of the

employer/respondent no.1 she could not be transferred for a period of five

years from the place of posting and which period of five years would expire

in May, 2013. A compromise by a via-media could have been that the

transfer order would be passed after five years but the petitioner today had to

indicate her place of posting inasmuch as at best the case of the petitioner

was that she was not to be transferred for a period of 5 years and which

period comes to an end on 4.5.2013. Argument on merits that the petitioner

could never be transferred before five years is not correct for the reasons as

stated hereinafter inasmuch as the employer can always transfer an

employee for administrative exigency and the policy relied upon by the

petitioner itself provides for this basic aspect. The petition has to be decided

on merits as the petitioner who had to give today the options of her preferred

places of posting for transfer, states that she will only give the options after

the period of five years and which is not acceptable to the respondent no.1 as

it would mean that the complete stand of the petitioner would be accepted

and the transfer order would effectively be held invalid/bad.

3. The facts of the case are that the petitioner who is an Assistant

General Manager in the respondent no.1-National Bank for Agriculture and

Rural Development (NABARD) was transferred to Delhi from Ranchi

Regional Office on 17.4.2008. The petitioner during her posting at Delhi

was served a transfer order dated 20.4.2012 transferring her to Goa Regional

Office of the respondent no.1/NABARD.

4. The petitioner has urged exactly four grounds to challenge her

transfer order and which grounds read as under:-

"A. Because the Petitioner has been transferred contrary to the transfer policy wherein the petitioner has a right to remain in one centre being a Grade-„C‟ Officer for at least five years.

B. Because the Petitioner was not even given the opportunity to ask for an option which is normally asked from every employee who is due for transfer to select options for transfer because the name of the petitioner was not appearing in the list of officers who were due for transfer.

C. Because the Respondents have arbitrarily rejected the representation of the petitioner without appreciating the fact that the petitioner was not due for transfer as per the transfer policy and the petitioner has a son who is in his final year in

school having his board examination in March, 2013 and also without appreciating the fact that the petitioner‟s father-in-law is under due care of the petitioner, being an 85 year old person suffering from various ailments.

D. Because the transfer order was tendered only to wreak a revenge upon the petitioner for filing a writ petition against the Respondent Bank and its senior officials for their wrong doings and act of harassment upon the petitioner."

5. The first ground (A) is that the petitioner cannot be transferred

for a period of five years in terms of the policy dated 15.2.2012 of the

respondent no.1 and since the petitioner joined Delhi on 5.5.2008, and, the

period of five years expires on 4.5.2013, the transfer order could not be

passed on 20.4.2012 i.e before the expiry of five years. The policy in

question has been filed as annexure P-3 at page 38 of the petition. No doubt,

this policy provides that ordinarily an employee will remain stand at a place

of posting for five years, however, that very policy itself provides that

though efforts will be made to effect transfers as per the criteria of five

years, however, the respondent no.1-Bank reserved the right to transfer

officers for administrative convenience/exigency. It is further provided in

this concerned para of the self same policy under the heading " Other

Conditions" that in case of a transfer being made for administrative

convenience/exigency, the officer should not make that as a cause for

grievance. Therefore in my opinion the policy which is relied upon by the

petitioner herself does not make it an inviolable rule that the petitioner

cannot be transferred before a period of five years. The only aspect to be

seen for transfer before five years is whether there is any administrative

convenience/exigency. Let us see if that exists in the present case. On the

aspect of administrative convenience/exigency, the respondent

no.1/employer has urged the following in the counter-affidavit.

" In the present case the repositioning exercise carried out in NABARD reassessed the staff strength of New Delhi RO. The strength of Grade „C‟ officers in the 8 was assessed as 6 against the actual strength of 11. As such Grade „C‟ officers were in excess at NDH it was decided to shift three Grade „C‟ officers for the present. It would be pertinent to mention here that the other two officers transferred alongwith the Petitioner have also not completed their normal tenure of five years (as broadly specified in our transfer policy) at their present centre. Bank takes a considerate approach while effecting transfer in respect of woman employees, physically handicapped employees of the Bank. Bank treats them on par with male employees and does not make distinction in policy related to transfer, training, promotion etc. the petitioner has been transferred keeping in mind the administrative exigencies and no malafide or arbitrariness is attributable against the

respondents, and the petitioner has failed to establish in her writ petition that any malafide is attributable in her case."

6. A reading of the aforesaid para shows that there were excess

postings of Assistant General Managers (AGMs) (Grade C posts) at the

regional office at New Delhi and therefore various officers including the

petitioner were transferred. The other officers of the same grade as the

petitioner who were transferred, accepted the transfer orders and have taken

over charge at their new places of posting. Thus the challenge to the transfer

order by this petition is not sustainable in view of the aforesaid paragraph of

the counter-affidavit which shows existence of administrative

convenience/exigency for passing the transfer order. It is settled law that

employment carries with it an obligation to serve the employer at whichever

place the employee is required to be posted in accordance with the

exigencies of service or administrative requirements. The aforesaid para of

the counter-affidavit filed on behalf of the employer shows sufficient

administrative requirement and exigency for transfer of the petitioner.

Therefore, the contention of the petitioner in the first ground that she was

entitled to remain for a period of five years in the present place of posting at

New Delhi is not sustainable.

7. The argument raised on behalf of the employer/respondent no.1

of administrative requirement and exigency which has been dealt with in

detail above equally applies to Ground (B) as raised in the writ petition of

the requirement of asking the petitioner an option of posting and therefore

there is also thus no merit in the said ground which is urged on behalf of the

petitioner and thus there was no requirement to seek option of place of

posting from the petitioner which applies to normal transfers after five years.

8. Ground (C) was to avoid transfer till March, 2013 as the

petitioner‟s son was to have board examination in March, 2013. Though in

my opinion, this cannot be a valid legal ground for a petition seeking to

avoid a transfer order, in any case, this ground would soon loose importance

because we are in January, 2013 and the petitioner only claimed, though,

without any legal basis, an entitlement to stay in Delhi up to March, 2013.

9. I may at this stage state that it is almost a universal

phenomenon that most of the employees in most of the organizations who

are posted at New Delhi do not want to leave Delhi. However, if whimsical

actions of employees for seeking to continue to stay at New Delhi are

accepted, no organization will be able to function efficiently.

10. The last ground which is urged being Ground D was that the

transfer of the petitioner was malafide because the petitioner had raised

issues against the management. This assertion is in the facts of the present

case unsustainable because the transfer is not only of the petitioner but the

transfer is also of other officers and which is on account of excess postings

in New Delhi of AGMs, and therefore, the transfer orders are for excess

AGMs including the petitioner. The grounds of malafides would have been

available if the transfer order was solely restricted to the petitioner and

which is not so in the facts of the present case.

11. Finally, I must add at the cost of repetition that transfer is an

incident of service. Orders of transfer are ordinarily not interfered by the

court save in grave exceptions or in ex facie violations of the rules or

policies of an organization. If courts would start interfering in transfer

orders, no organization will be able to function effectively. In the facts of

the present case, I do not find any merit in any of the grounds which are

urged on behalf of the petitioner. The respondent no.1/employer wanted to

act reasonably by putting the transfer order in effect after a period of five

years from posting in New Delhi but as the first paragraph of this judgment

shows that the petitioner wants to keep on delaying her transfer from New

Delhi, and quite clearly therefore the unacceptable agenda of the petitioner

cannot be sustained by this court.

12. In view of the above, there is no merit in the petition, which is

accordingly dismissed leaving the parties to bear their own costs.

VALMIKI J. MEHTA, J

JANUARY 04, 2013 ib