Madras High Court
All India Union Bank Officer vs Union Bank Of India on 28 April, 2025
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
W.P.NO.28838 OF 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.04.2025
CORAM
THE HON'BLE MR.JUSTICE C.V.KARTHIKEYAN
W.P.NO.28838 OF 2024
AND WMP NOS.31447, 31448, 31449 AND 37070 OF 2024
AND 7821 OF 2025
1.All India Union Bank Officer
Staff Association
Rep. by its General Secretary D.S.Ganesan
AIBOA House, II Floor,
No.109, Angappan Naicken Street,
Chennai – 600 001.
2.M.Kavitha ... Petitioners
VS.
1.Union Bank of India
Rep. By its Managing Director and
Chief Executive Officer
Central Office
No.239, Vidhan Bhawan Marg,
Nariman Point, Mumbai – 400 021.
2.Union Bank of India
Rep. By its Chief General Manager
Human Resources Department
Central Office
No.239, Vidhan Bhawan Marg,
Nariman Point, Mumbai – 400 021.
Page No.1 of 78
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W.P.NO.28838 OF 2024
3.Government of India
Rep. By its Secretary
Dept. of Financial Services
Jeevan Deep, Parliament Street,
New Delhi – 110 001. ... Respondents
PRAYER : Writ Petition filed under Article 226 of the Constitution of
India praying for a Writ of Certiorarified Mandamus, to call for the
records pertaining to transfer policy circulated in staff circulars bearing
No.7794 dated 01.10.2022 read with No.8019 dated 30.06.2023 read
with No.8546 dated 24.02.2025 issued by the 2nd respondent in so far as
it enables transfers of female officers on account of longer tenure in a
Zone, quash the same and consequently direct the 1st and 2nd respondents
to provide for transfer of female officers at a place close to their spouse /
family as mandated by the Government of India, Ministry of Finance,
Department of Financial Services, letter dated 08.08.2014 ad repatriate
the female officers who were transferred vide transfer policy circulated in
staff circulars bearing No.7794 dated 01.10.2022 read with No.8019
dated 30.06.2023 by permitting them to exercise option to return to
hometown or any other nearby place.
(Prayer amended as per order dated 06.03.2025 in WMP No.7817 of
2025 in W.P.No.28838 of 2024)
For Petitioner : Ms.R.Vaigai
Senior Counsel
for Ms.Anna Mathew
For Respondents 1&2 : Mr.Srinath Sridevan
Senior Counsel for
Mr.Edward James
For Respondent 3 : Mr.K.Srinivasamurthy
(SPC)
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ORDER
The writ petition had been initially filed in the nature of a
Certiorarified Mandamus seeking records relating to a transfer policy
circulated in staff circulars bearing No.7794, dated 01.10.2022, and
No.8019, dated 30.06.2023, issued by the second respondent, Union
Bank of India, represented by its Chief General Manager and to quash
both the circulars. The circulars had been issued with respect to transfer
of lady officers, who are said to have held their posts for a long tenure
time period in a particular zone.
2.The first petitioner, All India Union Bank Officer Staff
Association and the second petitioner, who is also an officer employed
under the Union Bank of India seek that this Court must direct the first
and second respondents to provide for transfer of lady officers to a place
close to their spouse or family as mandated by a communication dated
08.08.2014 of the Government of India, Ministry of Finance, Department
of Financial Services. An amendment was made to the relief sought in
W.M.P. No.7817 of 2025 which was ordered on 06.03.2025, wherein,
quite apart from the staff circular Nos.7794 & 8019, a restraint was also
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sought against circular No.8546, dated 24.02.2025, again issued by the
second respondent, Chief General Manager, Union Bank of India.
3.In the affidavit filed in support of the writ petition, it had
been contended that the Government of India, Ministry of Finance, had
issued instructions on 08.08.2014, relating to transfer of lady officers in
Public Sector Banks with the object to minimize the hardships they faced
and therefore, it had been stated that to the extent possible, the lady
officers must be accommodated or transferred to a place where their
husbands are stationed or in close proximity to that particular place and if
they are unmarried, to a place where their parents or any other dependent
or person to whom they are dependent, or to any place which is in
proximity to that particular place. In effect, the object of that particular
communication dated 08.08.2014 was to ensure that a healthy balance
was maintained by every lady officer between her duties to her family
and her duties to her place of work. It had been further contended that
the Public Sector Banks had been further advised to frame a transfer
policy on those lines.
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4.The respondent herein, Union Bank of India is also a
Public Sector Bank. Therefore, it was expected that they adhere to the
guidelines issued by the Government of India. It was also contended that
lady officers should be treated as a special class while taking a decision
to transfer them. The petitioners further placed reliance on the reply of
the Ministry of Finance on 19.07.2022 and again on 01.08.2023, where
again, it had been reiterated that the Government is aware of the
hardships faced by lady officers if they are subjected to transfers to
places which are very far away from where their families are normally
situated or residing.
5.It had been stated that however the respondents have
resorted to transfer officers from one zone to another zone, which would
necessitate cutting across States and transferring lady officers to an alien
atmosphere where there would be insecurity both at the place of stay and
at the office place.
6.Further reliance had been made on the report of the
Committee for the Empowerment of Women relating to Working
Conditions of Women in Public Sector Banks of the 16th Lok Sabha,
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more specifically, the guidelines relating to transfer of lady officers in
Public Sector Banks from one zone to another zone and recommending
that every Public Sector Banks should put a Special Cell to deal with the
cases of women, who had forgone their promotion with intention to be
retained in particular zone. It had been pointed that after foregoing
promotion, if they were to be still transferred, it would put them to much
hardship and they would have to reconcile themselves to not having
availed promotion but still being subjected to transfer. This would affect
their mental health.
7.During the course of hearing, the learned Senior Counsel
for the petitioners with much fairness stating that individual cases of
transfer are not questioned in this writ petition, but the policy had been
challenged. However, individual instances had been pointed out,
wherein, lady officers suffered much difficulties by themselves or by
their close family members owing to being transferred across the country
with no possibility of their representations being heard by the
respondents and even if heard, being rejected. It is also contended that
there are instances when before a decision can be taken to join the
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transferee post or request is made for extension of time to join,
disciplinary proceedings have also been initiated and it has been
contended though not specifically stated, that it was an arm twisting
method resorted by the respondents while putting in place their transfer
policy, particularly, on whom they termed as having served for a long
tenure in a particular place.
8.The circulars, which had been impugned in the writ
petition had been issued by the respondents and that portion of those
circulars relating to transfer of lady officers had been subjected to test
during the course of hearing before this Court.
9.The first circular is circular No.7794, dated 01.10.2022,
which provides for a transfer policy of officers upto MMGS – III staff
and it had been provided that while acceding to request transfers, and in
the event of non availability of vacancies in a zone, officers who had
completed three years of service in a particular scale outside the zone of
promotion will be transferred back to their parent zone. It had been
contended that this particular clause will have a rippling effect, since on
transfer back there will be an equal number of officers, who will be
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transferred out again and therefore, it is contended that there is no
consistency in the policy and at some point or other, a transfer is
effected, which would directly affect the peace of every lady officer. It
had also been provided in the same circular that a long tenure is termed
as somebody, who is working in the same place for nine years and they
would be, in a descending order taken into consideration and transferred
out of the zone. A small leverage was given so far as the age of the
officer is concerned and it had been stated that lady officers, who are
aged 52 years or more would not be moved out of the zone.
10.In the affidavit filed, it had been contended that on the
basis of the circular introduced on 01.10.2022, several lady officers had
been transferred from one zone to another zone in violation of clause 8.5
of the transfer policy. That particular clause relates to what could be
commonly called the relieving procedure, wherein, it had been stated that
normally a period of 20 days is given to join the transferee post, but
however, in reality, not more than 07 days had been given while passing
such orders transferring lady officers from one zone to another zone
overlooking their choices, rejecting representations and disregarding
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personal difficulties expressed. It had also been stated that the
respondents had further aggravated the situation by issuing a letter on
17.05.2023 that non reporting within the stipulated time to the transferee
post would be considered as unauthorized absence and disciplinary
proceedings would be initiated, immediately. This had led to several
representations being given by those, who were affected and also by the
first petitioner Association.
11.A writ petition had also been earlier filed in
W.P.No.6346 of 2024 seeking a direction to dispose of the
representations given. A Mandamus was also issued accordingly. But,
relief had not been granted to those who had so represented.
12.It had been further contended in the writ petition that the
transfer exercise of the year 2023-2024 was justified on the ground that
the respondents had to necessarily fill the vacant posts at various
branches and the only way they could do is by transfer. But what had
been left out from consideration were the difficulties which individual
officers suffered owing to such orders of transfer.
13.Thereafter, the second circular, which was impugned in
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the writ petition, namely, circular No.8019, was issued on 30.06.2023,
again as a transfer policy for officers upto MMGS – III for the year 2024
- 2025. It was held to be valid till 31.03.2025 and would be extended for
a further period of three months. But, it is however complained by the
petitioners that even this circular did not take into its ambit, the
guidelines of the Government of India, dated 08.08.2014, which
specifically addressed the difficulties, which lady officers would be
subjected to if they are transferred and more particularly, the direction
given to ensure that lady officers are posted to a place where their
spouses are working or in a place in close proximity to the places where
the spouses are working and if they are unmarried, to a place where their
parents or any other dependent are residing or working or any place
which is in a close proximity to such place.
14.In circular No.8019, dated 30.06.2023, it had been
provided that those who had completed service tenure of nine years or
more, in an officer cadre in a particular post, would be transferred out of
the zone and would be placed in another zone for a minimum period of
three years. This effectively brought in a mandate that anybody working
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for nine years in a particular zone, would certainly be transferred out of
the zone atleast for a minimum of three years. It had been further
contended that lady officers, who had completed the age of 52 years,
would not be moved out of the zone.
15.These two circulars had been questioned in the writ
petition and it had been very strongly argued during the course of hearing
that they violated the fundamental principles to protect every lady officer
by providing her a congenial atmosphere in the work place, which
provides security and ensures that she is able to balance her family and
office and discharge her duties in both places. It had been further stated
that this transfer policy also affected those who had never opted for
promotion in the hope that they would continue to serve within the zone.
Such officers and lady officers had also been transferred out of the zone.
16.As pointed out, specific instances had been given of
officers who had suffered physically and also mentally owing to the
orders of the transfer.
17.Pending the writ petition, an amendment had been
brought into further question a staff circular No.8546, which had been
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issued on 24.02.2025 and which again contained an identical clause in
Paragraph No.5.4 to again effect transfers on account of long tenure in a
particular zone. It had been contended that when the issue is pending
consideration before this Court, it was extremely inappropriate on the
part of the respondents to introduce a further circular on 24.02.2025 on
the same lines as the earlier circulars, which have been impugned,
namely, circular Nos.8019 & 7794.
18.It had been contended by the writ petitioners that
transfers were to a distance of about 500 to 1,000 Kilometers from the
original place of work and was not based on any justifiable reasons. It
was just an arbitrary act of transfer from place A to place B, without any
consideration as to whether they would directly affect the individual and
whether any steps were taken to assuage the difficulties of the individual.
It had been further stated that transfers were directly in violation of the
circulars of the Government of India and regulations. It was alleged that
this pointed out to a systemic discrimination on account of gender at the
work place and it affected the rights of every lady officer and it resulted
in displacement of a lady officer from her family permanently, from a
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place of secure environment and affected her mental health quite apart
from the physical strain and difficulties she was put to. It was contended
that the respondents should have been a little more considerate of the
difficulties which lady officers face owing to such irrational orders of
transfer and the threats held out that if the officer does not join the
transferee post within a stipulated time, disciplinary proceedings would
be initiated leading to fear of losing the very job which provided
financial security and an essence of an independence to the lady. In
effect, the respondents are alleged to have disregarded the mental peace
of the women officers and had only considered extracting work from
every employee without any consideration of protection given under
Article 15 (3) of the Constitution of India to women in general and have
violated their own duty and responsibility as stipulated under Article 42
of the Constitution of India. It was under those circumstances that the
writ petition has been filed questioning the circulars bringing to light
specific orders by which several women had suffered and had silently
borne the agony of being parted from their family and forced to live and
reside and work in an alien atmosphere in unsecure surroundings.
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19.When the writ petition came up for admission, a learned
Single Judge of this Court had held that the petitioners had made out a
prima facie case and therefore, granted injunction for a period of four
weeks. It was also stated that those lady employees, who had already
been transferred to far off places and had given representations, such
representations must be re-examined and reported to the Court. This
order was passed on 04.10.2024. This particular order had been
extended time and again. Thereafter, as stated, staff circular No.8546,
had been issued on 24.02.2025, which necessitated the petitioners to file
W.M.P. No.7817 of 2025 to also seek an order of Certiorari to quash that
particular circular. Permission to amend the relief was granted and the
affidavit was suitably amended incorporating that particular relief. On
06.03.2025, this Court had stated that this circular/ staff circular No.8546
should be put on hold and the respondents may await further orders of
this Court with reference to every women employee before implementing
the circulars. Thereafter, this order was clarified on 19.03.2025, that the
circular shall be put on hold only with reference to women employees
who have completed nine years of service tenure in a particular zone. It
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was also complained that disciplinary proceedings had been initiated if
an officer had not joined the transferee post and it had been observed that
if any disciplinary proceedings had been initiated, they would be
subjected to judicial review. But however, the learned Senior Counsel
for the respondents made a statement across the bar that disciplinary
proceedings had not been initiated according to instructions given to him.
The respondents had filed an application in W.M.P. No.37070 of 2024 to
vacate the order of interim injunction granted initially on 04.10.2024.
20.In the affidavit filed in support of the said writ
miscellaneous petition, it had been contended that the respondents had
introduced these circulars to carry out transfer process for the financial
years 2023 – 2024 & 2024 – 2025, particularly, with respect to those
officers, who were in a particular zone for a period, which could be
termed as long tenure term, namely, nine years or more. It was stated
that they were to be transferred on the basis of the availability of man
power and vacancies in other zones. It was stated that such transfers
were effected to balance the work force across the zones to meet the
business needs of the Bank. It had been further stated that there were
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some exemptions granted from the transfer policy, which could be
availed by the employees. The exemptions came with a rider that
requests would be considered depending on the gravity, genuineness and
the circumstances and to protect differently abled officers or officers
having differently abled family members and also to protect officers
whose parents, spouses or children or any other dependent required
medical assistance or officer who requires medical assistance on account
of serious illnesses which had been listed out.
21.Exemptions would also be granted to those officers,
whose spouses suffered death within a period of past two years.
Exemptions would also be granted to lady officers who were in the
family way. Such exemption would only be for three years, which
included nine months pregnancy period. Exemptions would also be
considered for officers with two children who are less than two years but
would be considered only till the children attain the age of two years and
not more than that.
22.It had also been stated that a portal had been opened
called Union Parivar for those who are due for transfer for having served
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in a particular zone for nine years or more to give their preferences for
any zone or to state exemptions, if any. It had been pointed out that this
particular portal was opened in the best interest of the officers to allocate
zones in the order of preference. But however, again, it had been stated
that notwithstanding the preference given, the Management retained a
discretion to grant or not to grant such request for a particular zone.
23.In effect, a preference could be given, but there was no
guarantee that it would be actually accepted or examined or even looked
into by the respondents. They still retained the right to transfer the
officers to a zone, where the management is of the opinion, the officer
should be transferred. The statistics relating to the number of officers,
who had been transferred had also been given.
24.In the affidavit, it had been further stated that the
respondent bank is very much concerned with the welfare of lady officers
and therefore, had ensured that the representations given are addressed to
the extent possible. But however, it had also been stated that transfer is
an administrative policy and the petitioners cannot question the transfer
policy of the respondents.
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25.The locus of the first petitioner to represent the officers in
general had also been questioned by the respondents. As a matter of fact,
the locus of the first petitioner to maintain the writ petition itself had also
been questioned. At any rate, it had been stated that since transfer is an
administrative act, which right the respondents retain and intend to
retain, the Court cannot step into that particular jurisdiction and direct
how the policy of the respondents must work out. It had been stated that
the policy is in conformity with the rules and guidelines keeping in mind,
the best interest of the respondents. It had been stated that liberty should
be given to the respondents to put into effect the transfer policy and there
cannot be any curbs laid down by the Court for implementing such
policy.
26.During the course of hearing, a string of affidavits,
counter affidavits and reply affidavits had been filed by the parties. It
would only be appropriate that reference is made to them.
27.The petitioners had filed an additional affidavit bringing
to the notice of the Court specific instances of officers, who had been
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transferred and the sufferings which they had to undergo owing to such
orders of transfers. It had also been stated that the transfers had been
effected in the middle of the academic year. It had been stated that some
of the serious issues raised by the lady officers were pregnancy, children
of tender age, miscarriage, death of children, birth of children with
special illnesses, parents or dependents suffering from mental disability,
mental health issues of children, critical illness of parents and or other
dependents, serious health complications of the officers themselves,
transfers affecting studies of the children and posting being so far away
that commutation back to home place being extremely difficult owing to
bad connectivity either through air or by road.
28.It had been contended that orders of transfer prevented
lady officers being a mother, being a wife, being a daughter or being a
primary care taker and they had to take a choice and it was a very hard
choice between family and career. They also had to take leave, which
directly affected their responsibilities to the office and had also affected
their mental health. They also had to go on leave on loss of pay. Many
of them had forgone their promotions and therefore, there was no further
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impetus in service and the sense of security was shattered by the orders
of transfer.
29.In the additional affidavit filed, further reference was
made to yet another letter of the Government of India, Ministry of
Finance Department, Financial Services, dated 26.11.2024, wherein
again, Public Sector Banks were advised to incorporate safeguards and
address the physical and mental health difficulties faced by women, who
are transferred from one zone to another zone. Guidelines were also
given in this regard and parameters to be examined before any
indiscriminate order of transfer is passed had also been issued.
30.It had been further stated that a learned Single Judge, by
an order dated 04.10.2024, had directed that the representations given
should be considered and must be reported back to this Court. The
respondents had issued an answer through electronic mail, for which, no
reply could be given and the reply was also not served on the officers. It
was thus contended that giving representations was an exercise of futility
and the respondents had never re-considered any order of transfer.
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31.The respondents had also filed an affidavit independent
of the application to vacate the interim injunction granted and in the
affidavit, a specific issue raised in the further affidavit of the petitioners
had been addressed. It had been stated that it would be irresponsible and
be of great disservice to the women of our country, who strive for equal
treatment alongside male counter parts, if a view that a woman should
never be transferred is taken. It was also stated that in the opinion of the
deponent of the counter affidavit, women do not wish to be tokenised or
treated as weaker beings, who survive on the protection by men.
32.It had been further stated that the CVC/Central Vigilance
Commission guidelines mandates transfer in certain cases and that
transfers are a must. It had been stated that the respondents do not pick
or choose the persons to be transferred. The orders were objective. It
had been further stated that the Bank had formulated and uploaded the
transfer policy, which of course had been impugned in the writ petition.
It had been further again reiterated that the officers, who had completed
service tenure of nine years and more, would be transferred to a place
outside the zone. In effect, in the further affidavit, the same averments as
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stated in the affidavit filed in support of the petition to vacate the order
of interim injunction were again reiterated.
33.A rejoinder had been filed by the petitioners. It had been
stated that in the writ petition, individual orders of transfer had not been
questioned, but the policy of the respondents to transfer lady officers
without any consideration for the difficulties they face had been pointed
out. It had been stated that though the policy was termed as being gender
neutral, it was, in effect, an indirect discrimination against women
officers. It had been stated that women who suffer from serious physical
and physiological difficulties have been transferred without regard to
their physical condition. It had been further stated that representations
had been replied by an autogenerated Email with general rejections and
to which, a reply cannot also be issued and it was thus reiterated that the
respondents have shown scant regard for the difficulties which women
officers faced, and there is no commitment to address those difficulties.
34.During the course of arguments, it had been contended by
the learned Senior Counsel for the respondents that the first petitioner
Association had taken undue advantage of the interim order granted and
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had publicized the said order and had invited representations from staff
and officers, who would like to send representations against orders of
transfer. It had been contended by the learned Senior Counsel for the
respondents that the first petitioner was indirectly taking advantage of the
filing of the writ petition and that the Court was used as a platform to
generate membership of the first petitioner Association. The learned
Senior Counsel for the petitioners objected to that contention and stated
that the order had been publicized as many women who kept silent
against orders of transfer were sensitized that they could raise
representations against such transfer orders.
35.Let me not delve into that particular issue but only record
that the petitioners had filed their affidavit explaining their stand in this
regard.
36.Arguments in length were advanced by Ms.R.Vaigai,
learned Senior Counsel on behalf of the petitioners, Mr.Srinath Sridevan,
learned Senior Counsel on behalf of the first and second respondents and
Mr.K.Srinivasamurthy, learned Senior Panel Counsel for the third
respondent.
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37.Even before adverting to the arguments of the learned
Senior Counsels, it must be pointed out that Mr.K.Srinivasamurthy,
learned Senior Panel Counsel for the third respondent had affirmed that
the Central Government had infact issued guidelines and policy relating
to transfer of women employees by Public Sector Banks and had placed a
word of caution against irrational transfer orders, which would directly
affect the security of the officers and had directed the Public Sector
Banks to formulate a policy in accordance with the guidelines issued.
The learned Senior Panel Counsel stated that though the first and second
respondents had formulated a policy, they had also introduced a new
term/ long tenure transfer policy, which was not found in the Central
Government guidelines.
38.There is one further aspect which has to be addressed by
the Court with respect to the complaint made by the learned Senior
Counsel for the first and second respondents that officers and staff, who
had served in a particular post for a long tenure are required to be shifted
owing to the guidelines of the CVC and also owing to administrative
grounds. It has to be stated that an employee cannot by himself or herself
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retain a post for a period of nine years. A duty is equally cast on the
employer to ensure that within a reasonable period of time, the employer
ensures that the staff or officer is transferred to another place. If the first
and second respondents complain that an employee had clinged on, as the
learned Senior Counsel for the first and second respondents stated as
“limpets” to a post, the blame equally lies on the employer for having
permitted such a situation to happen. They cannot turn around and place
the blame solely on the employee when an order of transfer can be passed
only by the first and second respondents. They therefore cannot blame
an employee for being in a post for a period of nine years or more. They
should have been more vigilant in the initial stage itself.
39.Be that as it may, Ms.R.Vaigai, learned Senior Counsel
on behalf of the petitioners in her arguments contended that the transfer
policy of the first and second respondents of those who had been
working in a particular branch or zone for more than nine years, which
could be termed as long tenure was brought into effect on and from 2022.
The learned Senior Counsel contended that this policy had affected
women officers as they had to choose between their family and career.
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She argued that officers suffered orders of transfer from one zone to
another zone, which cut across States and the places of transfer were
more than 1000 kilometers away. Officers who were transferred to alien
places in an unsecure atmosphere, had to leave their family and relatives
behind and had to fend for themselves. For a woman, taking a choice
between family and work is a difficult choice.
40.The learned Senior Counsel clarified that the writ petition
was not filed to quash individual orders of transfer, but only to highlight
the harshness of the transfer orders. The ground reality had to be
addressed by the respondents. There was no extended family support and
the impact of the policy had to be examined by the respondents. It was
pointed out that a woman faces complicated health issues and
transferring them from one place to another disregarding their
protestations could be termed as a patriarchal attitude of the respondents.
No consideration was shown to women employees or to women in
general.
41.The learned Senior Counsel questioned the statement of
the respondents that women do not wish to be tokenised and stated that
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such was not the intention of the petitioners but the petitioners have a
duty and responsibility to ensure that women are provided with a safe
and secure work place and that they are not put to difficulties by orders
of transfer.
42.The learned Senior Counsel further argued that the
policies were in direct violation of Article 15 (3) of the Constitution of
India. She argued that gender equality would indicate substantial
equality and removal of barriers. She contended that indirectly the
respondents encouraged a patriarchal society and there was a dichotomy
in the approach of the respondents. The learned Senior Counsel pointed
out the guidelines of the Government of India in their circulars, wherein,
they had placed certain guidelines for the transfer policy and had called
upon the Public Sector Banks to adhere to such guidelines. It was
contended that there was no fairness in the policies introduced by the
respondents. The learned Senior Counsel stated that the respondents
could not brush away the guidelines of the Government of India as being
only an advisory and did not restrict the discretion on the part of the
respondents. The learned Senior Counsel further stated that though the
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transfer policy appears gender neutral, it was in effect an indirect
discrimination against women employee.
43.With respect to the charge that the first petitioner could
not maintain the writ petition, the learned Senior Counsel was quite
dismissive of that contention in her arguments and pointed out that the
first petitioner was a registered Trade Union and an Union had every
right to address discrimination meted out to its members. She stated that
the first petitioner had a duty to point out the discriminations in the
transfer policy in general and in specific instances also and more
importantly, when representations were raised, the refusal to address the
representations by the respondents and even if addressed, replied by way
of an Email, which was generated without any possibility of a reply and
which did not contain any reason for rejection of the representations.
44.It had been further contended by the learned Senior
Counsel that the writ petitioners has protested by impressing upon the
respondents to bring about a more effective, more friendly and a fair
policy of transfer, which would take into consideration, the difficulties
faced by their own employees. It was pointed out that the officers and
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staff of the respondents are the face of the respondents. The customers
gain confidence only on interactions with the staff and officers. Business
develops in direct proportion to the attitude of the officers and staff.
They work overtime for the benefit of the Bank. Their salaries are fixed
and therefore, by working over time they are not going to get any
additional payment, but the additional efforts they put in to generate
customers and to impress the customers to come over to the respondent
Bank in comparison with other Public Sector Banks works only to the
advantage of the respondents and therefore, the contribution made by the
officers and staff should be appreciated by the respondents.
45.The learned Senior Counsel argued that having a hostile
attitude against the officers and staff, particularly, against the women
employees, who have no defence to put up, cannot be appreciated and
should be condemned by the Court. Some leverage should be given to
address the difficulties of women employees by the respondents. They
can never hide behind orders by stating that they are administrative
orders and cannot be questioned and are policy matters and should not be
questioned. The learned Senior Counsel stated that the petitioners have a
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duty to pointout the arbitrariness in the actions of the respondents and
stated that in effect, the writ petition is actually a cry for justice.
46.Mr.Srinath Sridevan, learned Senior Counsel for the first
and second respondents had his limitations. He pointed out that he
cannot be called upon to justify orders of transfer of individual officers.
He could only justify the policy as a whole. Learned Senior Counsel
pointed out that the policy is transparent, uniform and had been
consistently applied to all officers, men or women. He pointed out that
those who were in a particular branch or a zone for a period of nine years
will themselves appreciate if they were transferred from that particular
zone. He also pointed out the nature of the work discharged in a Bank.
Handling money matters requires transfers to be effected in periodical
intervals. It is part of the conditions of services accepted by the officers
and staff. It is not punitive in nature. It is only to further the business of
the first and second respondents. Transfer has to be effected to balance
the work force and ensure that work is equally divided across zones and
there is equal burden on every officer and every staff.
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47.Learned Senior Counsel also pointed out that for every
officer or staff, who remained in the same post for nine years and more,
there will be several other officers and staff, who would want to come
over to that particular zone but were not able to, owing to the continuous
occupation of that post by a particular officer or staff. The learned
Senior Counsel pointed out that rotation of the place of work is an
administrative act and had to be resorted to maintain not only the
integrity of the Bank, but also to ensure that staff do not get too
familiarized with any customer or with any particular branch and thereby,
invite charges against them. They should not fall prey or be misled to
commit any act, which would invite further disciplinary proceedings
against them.
48.The learned Senior Counsel pointed out the nature of the
policy. He pointed out that representations could be given and the
representations would be certainly addressed. He then pointed out that
there are certain exemptions and if an employee falls within the
exemptions, he or she will never be transferred. He further pointed out
that a specific portal had been opened up, where a choice of zone is given
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and that particular choice is accommodated to the extent possible. He
then pointed out that even if the choice is not accommodated, the staff or
officer can file an appeal and a Committee examines the appeal. He then
pointed out that there is also a Grievance Redressal Mechanism put in
place, which would further examine the grievances of the officers and
staff. The learned Senior Counsel therefore pointed out that the Bank
had reached out to the extent possible to address the
grievances/difficulties faced by the employees, who are subjected to and
who had been visited with orders of the transfer.
49.He pointed out that no orders of transfer was punitive in
nature and unless the petitioners point out malafide in such orders, they
could never be interfered with by the Court. The learned Senior counsel
stated that the policies are in conformity with the guidelines issued by the
Central Government and that the Bank has every right to formulate a
transfer policy. It was insisted that various steps have been put in to
ensure that the grievances are addressed.
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50.Learned Senior Counsel stated that many officers had
actually benefited by their grievances being addressed by the Bank. The
learned Senior Counsel stated that the policy has a catch on every aspect.
He gave the details about the number of applications which had been
forwarded seeking reconsideration of the orders of transfer and the
number of such applications which had been favourably considered and
which had been rejected and pointed out that they were on equal
measures.
51.He pointed out that even after the interim order, several
applications had been reviewed by the Committee. The learned Senior
Counsel stated that the Bank also has a policy to transfer to places where
spouses are working or residing and transfer to places where the
dependents are residing. It was thus argued that four separate safeguards
had been provided, namely, general exemptions and then what he called
the Parivar module for representations and an appeal against non
consideration of a request and a Grievance Redressal Mechanism. The
learned Senior Counsel stated that as far as possible, the guidelines of the
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Central Government had been adhered to and individual requests have
been addressed. The learned Senior Counsel pointed out that there were
instances when officers, who had been transferred were unwilling to join
duty and the only manner in which discipline could be enforced was to
initiate disciplinary proceedings in manner known to law and after
following due process. It was therefore contended that the Court cannot
sit as an authority to oversee the policies of the first and second
respondents and that the transfer policy could not be questioned by the
Court unless malafide is alleged. He further pointed out that there were
actually no pleadings to show that the tenure of nine years, which had
been determined as long term is irrational. It had been contended by the
learned Senior Counsel that the petitioners have engaged themselves in a
legal battle for the survival of the first petitioner and to further the
interest of the first petitioner rather than the interest of those who were
transferred to another zone or from one place to another. The learned
Senior Counsel was insistent on his stand that the writ petition should be
dismissed.
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52.Even before proceeding further to discuss the issues
raised by the learned Senior Counsels, it would only be appropriate to set
out the precedents cited on the issues raised.
53.The learned Senior Counsel for the first and second
respondents was very emphatic in his submission that the transfer policy
cannot be assailed before the Court and that the scope of judicial review
was extremely limited and could be resorted to unless it is made out that
the policy is malafide or made in violation of statutory provisions. It had
also been argued that not following the guidelines or instructions, could
not be sufficient to quash the policy as being malafide.
54.In this connection, reference was made to a judgment of
the Hon'ble Supreme Court reported in (1993) 4 SCC 357 [Union of
India and Others Vs. S.L.Abbas) with specific reference to paragraph
nos.6 and 7 which are as follows:
“6.An order of transfer is an incident of Government
Service. Fundamental Rule 11 says that "the whole time of a
Government servant is at the disposal of the Government which
pays him and he may be employed in any manner required by
proper authority". Fundamental Rule 15 says that "the
President may transfer a government servant from one post to
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another". That the respondent is liable to transfer anywhere in
India is not in dispute. It is not the case of the respondent that
order of his transfer is vitiated by mala fides on the part of the
authority making the order,- though the Tribunal does say so
merely because certain guidelines issued by the Central
Government are not followed, with which finding we shall deal
later. The respondent attributed"mischief"to his immediate
superior who had nothing to do with his transfer. All he says is
that he should not be transferred because his wife is working at
Shillong, his children are studying there and also because his
health had suffered a set-back some time ago. He relies upon
certain executive instructions issued by the Government in that
behalf. Those instructions are in the nature of guidelines. They
do not have statutory force.
7.Who should be transferred where, is a matter for the
appropriate authority to decide. Unless the order of transfer is
vitiated by mala fides or is made in violation of any statutory
provisions, the Court cannot interfere with it. While ordering
the transfer, there is no doubt, the authority must keep in mind
the guidelines issued by the Government on the subject.
Similarly if a person makes any representation with respect to
his transfer, the appropriate authority must consider the same
having regard to the exigencies of administration. The
guidelines say that as far as possible, husband and wife must be
posted at the same place. The said guideline however does not
confer upon the Government employee a legally enforceable
right.”
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55.Further, reference was also made to a judgment of the
Hon'ble Supreme Court reported in (2007) 8 SCC 150 [Mohd. Masood
Ahmad Vs. State of U.P. and Others] with specific reference to
paragraph nos.4 and 7, which are as follows:
“4.The petitioner-appellant, who was an Executive
Officer, Nagar Palika Parishad Muzaffarnagar, had in his writ
petition challenged his transfer by the State Government by
order dated 21.6.2005 as Executive Officer, Nagar Palika
Parishad Mawana, District Meerut. Since the petitioner was on
a transferable post, in our opinion, the High Court has rightly
dismissed the writ petition since transfer is an exigency of
service and is an administrative decision. Interference by the
Courts with transfer orders should only be in very rare cases.
As repeatedly held in several decisions, transfer is an exigency
of service vide B.Varadha Rao vs. State of Karnataka AIR 1986
SC 1955, Shilpi Bose vs. State of Bihar AIR 1991 SC 532,
Union of India vs. N.P. Thomas AIR 1993 SC 1605, Union of
India vs. S.L. Abbas AIR 1993 SC 2444, etc.
5. ...
6. ...
7.The scope of judicial review of transfer under Article
226 of the Constitution of India has been settled by the Supreme
Court in Rajendra Rao vs. Union of India (1993) 1 SCC 148;
(AIR 1939 SC 1236), National Hydroelectric Power
Corporation Ltd. vs. Shri Bhagwan (2001) 8 SCC 574; (AIR
2001 SC 3309), State Bank of India vs. Anjan Sanyal (2001) 5
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SCC 508; (AIR 2001 SC 1748). Following the aforesaid
principles laid down by the Supreme Court, the Allahabad High
Court in Vijay Pal Singh vs. State of U.P. (1997) 3 ESC 1668;
(1998) All LJ 70) and Onkarnath Tiwari vs. The Chief
Engineer, Minor Irrigation Department, U.P. Lucknow (1997)
3 ESC 1866; (1998 All LJ 245), has held that the principle of
law laid down in the aforesaid decisions is that an order of
transfer is a part of the service conditions of an employee which
should not be interfered with ordinarily by a Court of law in
exercise of its discretionary jurisdiction under Article
226 unless the Court finds that either the order is mala fide or
that the service rules prohibit such transfer, or that the
authorities who issued the orders, were not competent to pass
the orders. ”
56.The learned Senior Counsel further placed reliance on a
judgment of the Hon'ble Supreme Court reported in (2004) 11 SCC 402
[State of U.P. And Others Vs. Gobardhan Lal and Others] with specific
reference to paragraph no.7 which reads 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
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be an outcome of a mala fide 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 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 mala fides or is made in
violation of any statutory provision.”
57.In effect, the arguments advanced on behalf of the
respondents rested on the contention that transfer is a matter of policy,
and any decision taken pursuant to such policy would not be amenable to
judicial review unless it is shown to be vitiated by malafide. Further,
individual officers to whom separate orders of transfer had been issued
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alone, could point out malafide and the first petitioner – Association or
Trade Union cannot maintain allegations of malafide of individual orders
of transfer. The learned Senior Counsel contended that those who have
been directly affected by orders of transfer have not approached the
Court and simultaneously pointed out instances, where those who have
actually approached the Court had actually suffered an order of
dismissal.
58.It had been further pointed out on the side of the first and
second respondents that the policy as prevalent today provided for
transparency at all stages. General exemptions have been put in place and
if individuals fall within the exemptions, they could seek that they should
not be visited by an order of transfer. They can also indicate their place
of convenience or zone where they would like to be transferred and even
if that place is not considered, they could file an appeal before the
Appellate Authority and even if the Appellate Authority does not
favourably consider the appeal, they could still address the same to the
Grievances Redressal Cell. It is thus contended that the first and second
respondents have put in place a mechanism through which individual
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grievances can be addressed and are addressed.
59.I am conscious of the fact that I have moved to examine
the case of the respondents without first addressing the case as projected
by the petitioners. This had been done to keep in mind the path through
which the Court could traverse while addressing the issues raised by the
petitioners. It is, of course limited, as the Court cannot substitute itself
for those who govern the first and second respondents. However, the
learned Senior Counsel for the petitioners had substantially widened the
parameters to be considered.
60.The learned Senior Counsel for the petitioners argued
that the policy of the respondents directly affected the right of a woman
to live with independence and to exercise her choice to be with her
family and also to discharge her official duties. She has a right to claim
not to be separated from either. It is the responsibility of the respondents
to provide her with an atmosphere where she discharges duties and
responsibilities, in a secure atmosphere, without a shadow behind her or
a threat that she would be displaced to her disadvantage, putting at risk,
her relations with either her spouse or her family or her parents or
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dependents. It had been pointed out that the tenure based transfer policy,
particularly affected women and overlooked the difficulties which
women would face both physically, mentally and physiologically.
Further, the threat that if a woman does not join the transferee post
within the stipulated time, disciplinary action would be initiated, caused
further mental harassment to the woman officer.
61.The learned Senior Counsel for the petitioners further
pointed out the view of the Hon'ble Supreme Court while examining the
general disabilities and discriminations which women in India face and
in this connection made specific reference to the observations of the
Hon'ble Supreme Court in (2016) 4 SCC 179 [Richa Mishra Vs. State of
Chhattisgarh and Others] and placed reliance on paragraph nos.25, 26,
27 and 28 which are as follows:
“25.Women in this world, and particularly in India,
face various kinds of gender disabilities and discriminations.
It is notwithstanding the fact that under the Constitution of
India, women enjoy a unique status of equality with men. In
reality, however, they have yet to go a long way to achieve
this Constitutional status. It is now realised that real
empowerment would be achieved by women, which would
lead to their well-being facilitating enjoyment of rights
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guaranteed to them, only if there is an economic
empowerment of women as well. Till sometime back, the focus
was to achieve better treatment for women and for this
reason, the concentration was mainly on the well-being of
women. Now the focus is shifted to economic empowerment.
Such objectives have gradually evolved or broadened to
include the active role of women when it comes to
development as well. No longer the passive recipients of
welfare-enhancing help, women are increasingly seen, by men
as well as women as active agents of change: the dynamic
promoters of social transformation that can alter the lives of
both women and men.
26.It is now realised that there is a bidirectional
relationship between economic development and women's
empowerment defined as improving the ability of women to
access the constituents of development- in particular health,
education, earning opportunities, rights, and political
participation. This bidirectional relationship is explained by
Prof. Amartya Sen by propounding a theory that in one
direction, development alone can play a major role in driving
down an equality between men and women; in another
direction, continuing discrimination against women can
hinder development. In this scenario, empowerment can
accelerate development. From whichever direction the issue is
looked into, it provides justification for giving economic
empowerment to women. It is, for this purpose, there is much
emphasis on women empowerment (as it leads to economic
development) by United Nations World Bank and other such
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Bodies.
27.Interestingly, the 2012 World Development Report
(World Bank 2011) adopts a much more nuanced message.
While it emphasizes the “business case” for women
empowerment, it mainly takes it as given that the equality
between women and men is a desirable goal in itself, and
policies should aim to achieve that goal. Poverty and lack of
opportunity breed inequality between men and women, so that
when economic development reduces poverty, the condition of
women improves on two counts: first, when poverty is
reduced, the condition of everyone, including women,
improves, and second, gender inequality declines as poverty
declines, so the condition of women improves more than that
of men with development.
28.Economic development, however, is not enough to
bring about complete equality between men and women.
Policy action is still necessary to achieve equality between
genders. Such policy action would be unambiguously justified
if empowerment of women also stimulates further
development, starting a virtuous cycle. Empowerment of
women, thus, is perceived as equipping them to be
economically independent, self-reliant, with positive esteem to
enable them to face any situation and they should be able to
participate in the development activities.”
62.Learned Senior Counsel placed very strong reliance on a
judgment of the Hon'ble Supreme Court reported in (2021) 15 SCC 125
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[Lieutenant Colonel Nitisha and Others Vs. Union of India and
Others] more particularly, to the concept of indirect discrimination.
Specific reference had been made to paragraph no.51 of the said
judgment, which reads as follows:
“51.Indirect discrimination has also been recognized by
the High Courts in India. For instance, in the matters of public
sector employment, the Delhi High Court in Inspector (Mahila)
Ravina v. Union of India and in Madhu v. Northern Railways,
has upheld challenges to conditions of employment, which
though appear to be neutral, have an adverse effect on one
section of the society. Bhat, J., while analyzing the principles of
indirect discrimination in Madhu, held:
“20.This Court itself has recognised that
actions taken on a seemingly innocent ground can
in fact have discriminatory effects due to the
structural inequalities that exist between classes.
When the CRPF denied promotion to an officer on
the ground that she did not take the requisite
course to secure promotion, because she was
pregnant, the Delhi High Court struck down the
action as discriminatory. Such actions would
inherently affect women more than men. The
Court in Ravina v. Union of India stated: (SCC
OnLine Del para 12)
12...... A seemingly “neutral”
reason such as inability of the
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employee, or unwillingness, if not
probed closely, would act in a
discriminatory manner, directly
impacting her service rights. That is
exactly what has happened here:
though CRPF asserts that seniority
benefit at par with the petitioner's
colleagues and batchmates (who were
able to clear course No. 85) cannot be
given to her because she did not attend
that course, in truth, her
“unwillingness” stemmed from her
inability due to her pregnancy.' ”
63.In the very same judgment, the observations of the
Hon'ble Supreme Court relating to systemic discrimination had also been
pointed out by the learned Senior Counsel and in this connection,
reference was made to the observations in paragraph nos.75, 76 and 77
which are as follows:
“F.7.Systemic Discrimination as antithetical to Substantive
Equality
75.As noted in the analysis above, the emphasis on
intent alone as the key to unlocking discrimination has
resulted in several practices, under the veneer of objectivity
and “equal” application to all persons, to fall through the
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cracks of our equality jurisprudence. Indirect discrimination
as a tool of jurisprudential analysis, can result in the
redressal of several inequities by probing provisions, criteria
or practice that have a disproportionate and adverse impact
on members of groups who belong to groups that are
constitutionally protected from discrimination under Article
15(1). However, it needs to be emphasized that a strict
emphasis on using only one of the two tools (between direct
and indirect discrimination) to establish and redress
discrimination may often result in patterns and structures of
discrimination remaining unaddressed.
76.In order to conceptualize substantive equality, it
would be apposite to conduct a systemic analysis of
discrimination that combines tools of direct and indirect
discrimination. In the words of Professor Marie Mercat-
Bruns:
“Systemic discrimination posits the need
to conceptualize discrimination in terms of
workplace dynamics rather than solely in
existing terms of an identifiable actor’s isolated
state of mind, a victim’s perception of his or her
own work environment, or the job-relatedness of
a neutral employment practice with adverse
consequences. Systemic discrimination derives
from how organizations, as structures
discriminate.”
77.A particular discriminatory practice or provision
might often be insufficient to expose the entire gamut of
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discrimination that a particular structure may perpetuate.
Exclusive reliance on tools of direct or indirect discrimination
may also not effectively account for patterns arising out of
multiple axles of discrimination. Therefore, a systemic view of
discrimination, in perceiving discriminatory disadvantage as
a continuum, would account for not just unjust action but also
inaction. Structures, in the form of organizations or otherwise,
would be probed for the systems or cultures they produce that
influence day-to- day interaction and decision-making. The
duty of constitutional courts, when confronted with such a
scheme of things, would not just be to strike down the
discriminatory practices and compensate for the harm
hitherto arising out of them; but also structure adequate
reliefs and remedies that facilitate social re- distribution by
providing for positive entitlements that aim to negate the
scope of future harm.”
64.The further observation in paragraph no.116 was also
referred to.
“116.We must recognize here that the structures of our
society have been created by males and for males. As a result,
certain structures that may seem to be the “norm” and may
appear to be harmless, are a reflection of the insidious
patriarchal system. At the time of Independence, our
Constitution sought to achieve a transformation in our society
by envisaging equal opportunity in public employment and
gender equality. Since then, we have continuously endeavored
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to achieve the guarantee of equality enshrined in our
Constitution. A facially equal application of laws to unequal
parties is a farce, when the law is structured to cater to a
male standpoint. Presently, adjustments, both in thought and
letter, are necessary to rebuild the structures of an equal
society. These adjustments and amendments however, are not
concessions being granted to a set of persons, but instead are
the wrongs being remedied to obliterate years of suppression
of opportunities which should have been granted to women. It
is not enough to proudly state that women officers are allowed
to serve the nation in the Armed Forces, when the true picture
of their service conditions tells a different story. A superficial
sense of equality is not in the true spirit of the Constitution
and attempts to make equality only symbolic.”
65.The learned Senior Counsel also referred to a judgment
of the Hon'ble Supreme Court reported in (2022) 12 SCC 1 [SK. Nausad
Rahaman and Others Vs. Union of India and Others] wherein reference
was made to Nitisha's case referred supra. Paragraph no.51 of the
judgment is as follows:
“51.This Court has spoken about the systemic
discrimination on account of gender at the workplace which
encapsulates the patriarchal construction that permeates all
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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
3-4-1986, 23-8-2004, 8-7-2009 and 30-9-2009 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
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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.”
66.The learned Senior Counsel further placed reliance on a
judgment of the Hon'ble Supreme Court reported in (2022) 14 SCC 187
[Ms X Vs. Registrar General, High Court of Madhya Pradesh and
Another] wherein the argument of the learned Senior Counsel therein
was pointed out in paragraph no.18. The concept of legitimate
expectation was also examined with respect to the policy of transfer and
the Hon'ble Supreme Court had held as follows in paragraph nos.48 and
53 which are as follows:
“48.It could thus be seen that the transfer of the
petitioner was effected mid – term though she could have very
well been transferred in general transfers, to be effected in
March-April, 2014. Even in the agenda of the mid-term
transfers, which were to be effected on various grounds,
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petitioner’s name was not included. It was only after the then
D & SJ, Gwalior addressed a complaint to the then RG,
seeking her transfer out of Gwalior, the matter was placed
immediately before the Transfer Committee within days and
the Transfer Committee approved the transfer of the
petitioner. Immediately after the receipt of the transfer order,
the petitioner made a representation on 9-7-2014, specifically
pointing out therein that her daughter was studying in Class
12 th and also undergoing FIITJEE coaching. The said
representation was rejected within two days. The petitioner
had a legitimate expectation of her representation being
considered specifically in view of Clause 9(a) of the Transfer
Policy. The Transfer Policy provides that on such
representation being made, the RG shall obtain the comments
of the District Judge within a week and on receiving his
comments after necessary verifications, it was required that
the matter should be placed before the concerned Portfolio
Judge within a week, who was required to return the file
within a period of one week thereafter, with his
comments/opinion.
53.The petitioner had a legitimate expectation in view
of Clause 10 of the Transfer Policy to have her case
considered for posting at any of the 4 places in the event her
request for retention at the then present posting was not
considered and as such, she made the second representation.
We are at pains to say that the rejection of the second
representation depicts total non-application of mind by the
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then RG as well as the then Judge of the Transfer Committee
of the MP High Court. The proposal of the then RG was made
in a casual manner and accepted by the then Judge on the
Transfer Committee in a mechanical manner.”
67.With respect to the presumption of validity of a State
action and if the initial burden to prove arbitrariness is discharged, then
the onus shifts to the State to justify the action as fair and reasonable, the
learned Senior Counsel placed reliance on paragraph no.58, which is as
follows:
“58.It could thus be seen that this Court has held that
there is a presumption of validity of the State action and the
burden is on the person who alleges violation of Article 14 of
the Constitution of India to prove the assertion. It has been
further held that where no plausible reason or principle is
indicated nor is it discernible and the impugned State action
appears to be arbitrary, the initial burden to prove the
arbitrariness is discharged, thereby shifting onus on the State
to justify its action as fair and reasonable. If the State is unable
to produce material to justify its action as fair and reasonable,
the burden on the person alleging arbitrariness must be held to
be discharged. The limited scope of judicial review is only to
satisfy that the State action is not vitiated by the vice of
arbitrariness and no more. It is equally settled that it is not for
the courts to recast the policy or to substitute it with another
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which is considered to be more appropriate. It has been held
that the attack on the ground of arbitrariness is successfully
repelled by showing that the act which was done, was fair and
reasonable in the facts and circumstances of the case.”
68.Reference was also made to the observation in paragraph
no.61, wherein it had been observed about the obligation of the State to
act fairly, without ill will or malafide either on facts or on law. Paragraph
no.61 is as follows:
“61.It is trite that the State is under the obligation to
act fairly without ill will or malice — in fact or in law. “Legal
malice” or “malice in law” means something done without
lawful excuse. It is an act done wrongfully and wilfully
without reasonable or probable cause, and not necessarily an
act done from ill feeling and spite. Where malice is attributed
to the State, it can never be a case of malice or spite on the
part of the State. It would mean exercise of statutory power
for “purposes foreign to those for which it is in law
intended”. It means conscious violation of the law to the
prejudice of another, a depraved inclination on the part of the
authority to disregard the rights of others.”
69.The learned Senior Counsel placed further reliance on the
expectation by a woman to be free from discrimination and to have equal
protection of the law during pregnancy and maternity, as observed by the
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Hon'ble Supreme Court in the judgment reported in 2025 SCC OnLine
SC 459 [Sarita Choudhary Vs. High Court of Madhya Pradesh].
Paragraph no.17.4, which comes under paragraph no.17, which speaks
about the Women Workforce : Women in the Indian Judiciary, reads
as follows:
“17.4.The freedom from discrimination or equal
protection of the laws during pregnancy and maternity of a
woman are precious rights for women workforce. If
pregnancy results in the birth of a child, it brings not only joy
to the parents of the child but also a sense of fulfilment to the
young mother. On the other hand, a pregnancy miscarriage
has deep physical, mental and psychological aftereffects on a
woman. Miscarriage is generally defined as a loss of
pregnancy before viability. Psychological consequences
include increase in the risk of anxiety, depression, post-
traumatic stress disorder, sometimes leading to suicides.
Recurrent miscarriage leads to obstetrics complications and
long-term health problems. Although there is varying amount
of physical aftereffects including backache and abdominal
pain involved in miscarriages, the psychological and social
effects may be more severe and long lasting. A miscarriage
affects a person’s identity, leading to disappointments and
challenges to motherhood identity and role, stigma and
isolation, amongst other aspects. A number of risk factors
predisposing women to experience significant psychological
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distress following miscarriage have also been identified.
There could be psychiatric illness and a previous pregnancy
loss could lead to increase in chances of severe psychological
distress.”
70.I have carefully considered the arguments advanced and
perused the materials available on record.
71.This writ petition has been filed by the All India Union
Bank Officer Staff Association questioning three transfer policies three
separate Circulars of the first and second respondents. All the three
Circulars relate to transfer of officers and staff whom the said
respondents considered to have held on to their posts in one particular
zone, for a long period or a long tenure of nine years and more.
72.An employee however cannot remain in a post for nine
years unless a request to be retained had been examined and the
employee had been retained in the same post whenever general transfers
had been effected. Therefore, laying a blame on a particular staff or
officer in remaining in that particular post for a long period has to be
rejected, since a duty was cast also on the first and second respondents to
ensure that when requests for retention had been granted earlier, a
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reasonable and legitimate expectation is placed on the employee that
those reasons can always be considered to the advantage of the
employee, whenever any further general order of transfer is effected.
73.In the instance case, the petitioner questions the policy to
transfer those who had served for a period of nine years or more, from
one zone to another zone. Instances had been cited by the petitioners of
lady officers who had been transferred across States.
74.The learned Senior Counsel for the first and second
respondents had stated that examination of individual orders may not be
appropriate unless malafide is alleged. But it is the individual instances
which form the basis for questioning the transfer policy.
75.It is the grievance of individuals which had forced the
petitioners to challenge and seek the policy to be struck down by this
Court or to atleast interfere and modify the same. Therefore, individual
instances cannot be divorced from the broader policy as a whole. The
Court is not questioning or seeking to set aside any individual transfer
but rather pointing them out to show arbitrariness and irrationality in the
policy and thereby, stressing the necessity to call upon the first and
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second respondents to revisit the policy of transfer. Therefore,
examination of individual cases is not adhered to canvas the case of that
particular individual and seek that particular transfer should be interfered
with, but only as an illustration of the difficulties faced by officers, who
had been visited with orders of transfer and whose representations had
not been addressed by the respondents.
76.Let me just state at random one or two such instances. It
has been pointed out by the learned Senior Counsel for the first and
second respondents that individual challenges by individual officers had
suffered orders of dismissal. But still, the fact that the officers had
suffered great physical, mental and physiological hardship cannot be
either denied or disputed unless it is claimed by the respondents that
those difficulties pleaded are false to the knowledge of the individual
officers. They may not be grounds to interfere with the order of transfer.
But they are certainly illustrations to point out the general difficulties
faced, if an order of transfer is passed.
77.Even before proceeding to examine individual cases, it
would only be appropriate to examine the guidelines of the Union of
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India, Ministry of Finance, Department of Financial Services. By a
communication dated 26.11.2024 to the Public Sector or Nationalized
Banks, it had been stated that the Department had observed an increase in
trend in complaints / grievances relating to transfer policies of the Public
Sector Banks and therefore, had directed putting in place a sustainable
policy which would address the grievances and would not complicate the
existing hardships faced by women employees. The following advice had
been given in the said communication:
“This Department had accorded managerial autonomy
to the Public Sector Banks (PSBs) in matters related to Human
Resources (HR) and has been communicating broad
guidelines, from time to time, regarding HR reforms including
relevant instructions of the Department of Personnel &
Training for incorporation in their respective 'Transfer
Policy'.
2.This Department has observed an increasing trend in
the complaints / grievances received with regard to the
'Transfer Policy' and its implementation by the PSBs'. Such
complaints / grievances are received through various forums
and from various dignitaries.
3.In view of the above, the 'Transfer Policy' of the
banks have been reviewed and with an aim to promote greater
transparency, and to ensure formulation of a uniform and non-
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discretionary 'Transfer Policy', PSBs are advised as below:
a.Various administrative layers in the Bank such as
Region / Zone / Circle / FGMO etc., be clearly and uniformly
defined. Similarly, minimum and maximum tenure at each
layer be also clearly defined.
b.'Transfer timelines' be clearly defined and strictly
adhered to. Transfer exercises may be completed before June,
every year. Mid-year transfers may be avoided as far as
possible except in case of promotions and administrative
exigencies.
c.Transfer exercise be made transparent with annual
publication of seniority list and the existing / expected
vacancies at different locations / scales. Rotational transfers
should be on seniority basis and exceptions, if any, should be
properly recorded / documented.
d.Banks to automate the transfer process and to
develop an online platform for the same with the facilities of
giving location preference options to its employees in case of
transfers. The online portal may also include the Bank's
transfer policy, guidelines and related circulars, scale wise
seniority list, details of vacancies scale wise / location wise,
and other relevant details in order to bring efficiency and
transparency in transfer process.
e.Banks to accommodate officers up to Scale – III in
the respective linguistic region in order to ensure seamless
customer service to the extent possible, considering various
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factors including availability of vacancies, administrative
exigencies etc.
f.Banks to designate certain regions as 'Difficult
areas'. The employees posted there be given preference for
transfer after completion of their tenure.
g.In addition to the available grounds of transfer, the
grounds of marriage / spouse / medical / maternity / child care
/ far away postings also be suitably incorporated.
h.In case of spouse working in Central / State
Governments, an endeavour to post them in the same place /
region or nearby place / region be made.
i.Women employees be transferred as far as possible to
nearby places / stations / regions. In case of posting to a far-
away / remote locations, their safety be given due importance
and availability of basic amenities be ensure.
j.Grievances received from employees citing violation
of transfer policies be dealt in a considerate manner and
suitably responded after detailed deliberations and by duly
recording the reasons thereof.
k.With respect to appeals received on transfers from
the employees, a committee be set up to look into the issue and
dispose the appeals within 15 days.
l.With regard to 'Transfer protection' to office bearers
of Associations / Unions, clear definition of position, tenure
and applicability be incorporated and strictly adhered.
Transfer protection may not be made available to an office
bearer on promotion.
4.All PSBs are requested to incorporate the above
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advises suitably in their respective 'Transfer Policy' with the
approval of their Boards and take immediate action for its
implementation and compliance from FY 2025-26. PSBs are
also advised to send a copy of the policy, so modified, to this
Department, at the earliest.”
78.A whole series of instances have been given on behalf of
the petitioners. For instance, a lady, Stuti Kalura had sought transfer back
to Dehradun having been transferred to Mumbai. She had stated that
separation from her family had been distressing and had impacted her
ability to perform duty. It has to be seen that the Bank is also the sufferer
and not just the individual. It is for that reason, the first and second
respondents must address individual cases to refine their policy as a
whole.
79.A further instance can be given of a lady called Priyanka
Govind Mohite who claimed that she had been transferred to Khammam
from Pune and citing a request to be transferred back by stating that the
transferee place is 1000 kms., away from the place of her house and she
was undergoing fertility treatment at the place where she was earlier
residing and had been suggested surgery and IVF treatment. Owing to
the long distance and separation from her husband that is just simply not
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possible. She had stated that she had given up career progression owing
to her family circumstances and that this transfer had directly affected
her.
80.A further case could be stated of Barkha Wadhwa who
had been transferred to Bengaluru from Delhi. She claimed that her son
suffers from Type – I Diabetes and Celiac disease which are both life
threatening conditions. He is in Class XI which is a critical time for his
education. She was not able to join in Bengaluru and therefore, has been
on leave on loss of pay since the date of transfer.
81.A final instance out of several could be given of Kalyani
Bhagwat Shendge who had been transferred to Hyderabad from Pune.
She stated that she has severe abdominal pain and has been enduring the
medical condition for the past few years and it requires bed rest. She has
a four years old girl child and is unable to take care of her daughter. Her
husband is working about 700 kms away. Her mother is aged about 65
years. After the order of transfer, she has been on medical leave from
July 2024 onwards.
82.All these four individuals would be inviting disciplinary
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proceedings and I fervently hope that the first and second respondents do
not initiate that step. But these are the difficulties faced by just four
random ladies picked up by Court and not cited across the Bar. The
instances have been given in a typed-set and chosen at random. A
reading is extremely dismaying.
83.The respondents have a duty to re-examine their transfer
policy. It is not for the Court to decide specific measures, but it is
certainly within the respondents' responsibility to consider taking steps
such as widening the grounds of exemptions from transfers. Permitting
individuals to indicate their preferred zone of posting, permitting filing
an appeal if the place is not considered, and subsequently permitting
approaching the Grievance Redressal Cell are insufficient.
84.I wonder why the respondents could not put in place a
system where at the end of six years, they place a red signal that the order
retaining the officer for a further period of three years would be the final
retention. If the officer is put on notice at the end of the sixth year, then,
some adjustments within the family could be made.
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85.I wonder why the respondents could not implement
counseling before effecting the transfer. Counseling could involve
consultations with mental health professionals, as well as assessments by
a medical team, to address individual grievances and ensure the well-
being of the affected employees.
86.I wonder why the respondents could not put in place a
system where individual officers are transferred within the zone and not
necessarily out of a zone, even after they worked for nine years in a
particular place. I fail to see the rational behind transferring an officer
from one corner of the country to another, particularly given the diverse
linguistic and cultural differences across States, which can pose
significant challenges.
87.I wonder why the respondents could not provide for a
longer time to join the place of transfer and only after this extended
period, held out that disciplinary proceedings would be initiated, if the
employee fails to report to the transferee post.
88.It is on record in the affidavit that, although the transfer
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policy generally provides a joining time of twenty days, the order for
transferring an employee with a long tenure stipulates only seven days.
Furthermore, it has been explicitly stated that disciplinary proceedings
must be initiated if the employee fails to join within this seven-day
period. I am unable to understand the rationale behind this approach.
Instead of imposing undue pressure, they could have considered
providing a more reasonable timeline for women officers, and atleast
retain the joining time of twenty days. These are measures that the
respondents could implement if they were to apply their minds and
recognize that the employees alone actually and ultimately contribute to
furthering the business of the Bank. It is the quality of service provided
which encourages customers to recommend the Bank to other customers.
It is not just the services provided by the Bank that matters, but also the
manner in which those services are presented and marketed, which are
also equally important.
89.Although the Court cannot dictate the specific nature of a
transfer policy, it is evident from the illustrations provided by the
petitioners that the current policy has failed. It has not addressed the
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grievances of the affected individuals, nor has it considered the impact
on their family members. In fact, the representations submitted indicate
that the employees' work performance has also been negatively affected.
Fostering an environment of discontent among officers and staff in any
workplace is not conducive to a healthy working atmosphere. The
respondents must seriously examine this issue.
90.Although it can be argued that the guidelines issued by
the Union of India are directory in nature and not mandatory, it stipulates
an obligation of the first and second respondents to implement a policy
that is in conformity with the guidelines of the Union of India. It is
evident that the policy disproportionately affects women, who suffer
under the order of transfer. A woman is tied to her family, to her
children, to her parents, and to the security of her place of work. She
cannot be expected to be moved around frequently without significant
hardship. The irregularities in the policy must be understood, and need to
be properly addressed.
91.There had been a direct violation of Articles 14 and 15(3)
of the Constitution of India. Although Article 42 of the Constitution of
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India is often viewed as a directive principle and is not generally
enforceable, it nonetheless puts in place a duty to ensure just and
favorable working conditions for women, particularly with respect to
maternity protection. Article 14 of the Constitution of India is as
follows:
“14. Equality before law - The State shall not deny to
any person equality before the law or the equal protection of
the laws within the territory of India.”
Article 15(3) of the Constitution of India is as follows:
“15.Prohibition of discrimination on grounds of
religion, race, caste, sex or place of birth (1) ...
(3)Nothing in this article shall prevent the State from
making any special provision for women and children.”
Article 42 of the Constitution of India is as follows:
“42.Provision for just and humane conditions of
work and maternity relief. - The State shall make provision
for securing just and humane conditions of work and for
maternity relief.”
92.It must also be pointed out that transfers which disregard
family, health, or safety concerns are unjust and could violate Article 21,
which protects human dignity. Transfers cannot be carried out in a
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mechanical or burdensome manner. There must be a balance between
administrative requirements and the personal safety, family
responsibilities and well-being of the employee.
93.There is yet another angle to the entire issue. In a
judgment which is often not quoted but, reported in (1979) 1 MLJ 221
V.Natarajan Vs. Principal District Judge, the issue was not about
transfer. The issue was about the family of the petitioner therein whose
validity of appointment as a Copyist in the District Munsif's Court at
Tirumangalam was challenged. His services had been confirmed and had
been regularized. But however, the statutory rules were not followed and
then he was discharged. To a little extent, the principles applied by the
learned Single Judge of this Court would be quite instructive. In those
circumstances, the learned Single Judge had examined whether the
doctrine of estoppel could be applied against the State in Governmental
public or sovereign capacity. Arguments were advanced on behalf of the
State that it could not be applied. As a matter of fact, reliance was placed
on the judgment reported in (1973) II LLJ 409 SC [Ramanatha Vs.
State of Kerala] wherein the Hon'ble Supreme Court had observed that
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as a general rule, the doctrine of estoppel will not be applied against a
State in its Governmental public or sovereign capacity. But, in
V.Natarajan, (referred supra), a learned Single Judge of this Court
(G.Ramanujam, J.) stated that an exception to the general rule is to
prevent manifest injustice or fraud. It had therefore been held by the
learned Judge that though the doctrine of estoppel cannot be applied
against any State, it can be used in exceptional circumstances, where the
conduct of the authorities is remiss or negligent in their obligation of the
rules and had caused considerable hardship and injustice to the person
who is seriously affected by such negligent conduct. The words of the
learned Single Judge are as follows:
“11.The learned Government Pleader however
contends that there can be no estoppel against a statute, that
the statutory rules having prescribed a specific educational
qualification for a particular post that cannot be overlooked
by the appointing authority, and that the Court cannot compel
any authority to sustain an appointment which is admittedly
contrary to the rules. The learned Government Pleader cites
the decision in Ramanatha v. State of Kerala
MANU/SC/0048/1973 : (1973) II LLJ 409 SC wherein the
Supreme Court has observed that as a general rule the
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doctrine of estoppel will not be applied against the State in its
governmental public or sovereign capacity and submits that
therefore the plea of equitable estoppel cannot be used in the
circumstances of this case. But, the same decision has also
laid down that an exception to that general rule however
arises where it is necessary to prevent fraud or manifest
injustice. Thus though the normal rule is that the doctrine of
estoppel will not be applied against the State in its
governmental functions, it can be used in exceptional
circumstances where the conduct of the authorities in being
remiss or negligent in the application of the rules has
caused considerable hardship and injustice to the person
who is seriously affected by such negligent conduct. ...”
Emphasis supplied
94.While applying that principle to the first and second
respondents in this case, even though they have a transfer policy, it
cannot be argued that issues cannot be raised against the policy, if it
results in causing considerable hardship and injustice to the person who
is seriously affected, the policy can certainly be called in question. It
cannot be interfered by the Court in entirety but certainly a direction
could be given to revisit the said policy and put in place additional
safeguards apart from the safeguards which had been projected by the
learned Senior Counsel for the respondents.
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95.This Court under Article 226 is within its jurisdiction to
put forth the following safeguards, to prevent indirect discrimination of
woman working under the first and second respondents and to promote
equality.
(i)The first and second respondents must consider
establishing a Counseling Centre to support employees who have
completed six years of continuous service in a particular station,
informing them of the potential for a transfer upon the completion of nine
years.
(ii)The first and second respondents must consider
establishing a Medical Team at each zone to ensure that proper care is
provided at any location to which employees are transferred. This would
address not only physical and physiological concerns but also mental
health, ensuring that no place is considered insecure for a woman and
that help is at hand.
(iii)The first and second respondents must also encourage
home visits during the period when women officers are transferred out of
their normal place of residence and grant that particular permission at
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W.P.NO.28838 OF 2024
acceptable intervals.
(iv)The first and second respondents must grant a minimum
of twenty (20) days period as joining time and as a policy give up its
directive to initiate disciplinary proceedings, if an employee does not join
within that particular period of twenty (20) days unless non joining is
deliberate.
(v)The first and second respondents must establish an
effective Grievance Redressal Cell, ensuring that the majority of
members are women. This Cell should be responsible for examining
individual grievances and making genuine efforts to address them,
including facilitating transfers within the same zone whenever deemed
necessary. The said respondents certainly would not suffer by an officer
being transferred within a zone but they would gain much loyalty if that
particular policy is adhered to.
(vi) The first and second respondents must ensure that any
policy they introduce is in conformity with the guidelines issued by the
Central Government, as outlined in its directive dated 08.08.2014 and
subsequently reiterated on 26.11.2024.
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W.P.NO.28838 OF 2024
(vii)Among the officers who could be exempted from
transfer, the first and second respondents may also consider including
those whose children are at a crucial stage in their educational career.
(viii)The first and second respondents may engage in direct
discussions with those affected by the transfer, ensuring that similar
grievances are not raised by any other officer, and that these grievances
are properly addressed.
96.The transfer policy requires to be revisited and
grievances will necessarily have to be addressed and redressed by the
first and second respondents. I am deeply conscious that though the writ
petition is for a Certiorarified Mandamus, to strike down the circulars,
this Court has only issued directions and had retained the circulars. The
Court has its limitations and cannot step into the shoes of the first and
second respondents to dictate their transfer policy. However, the reality
of the situation must be understood, as it may work to the disadvantage
of the said respondents by fall in standard of application to work ethics.
A balance must be struck, and in this context, addressing individual
grievances will facilitate the first and second respondents to achieve the
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W.P.NO.28838 OF 2024
right balance.
97.Since the petitioners have come to Court with specific
instances of woman having expressed their difficulties over orders of
transfer suffered by them, I would place a request on the first and second
respondents to withdraw any disciplinary proceedings initiated against
them for non-joining of the place of transfer and also re-examine and
revisit the timeline for joining with an open mind and address requests
for re-transfer, if not to a specific place, but within a particular zone,
within a reasonable distance of their normal place of residence or normal
place of residence of their family or normal place of the educational
institution of their children or normal place of hospital where any
treatment is undertaken. It is just a humane approach to be adopted by the
first and second respondents and I am confident that they would take this
particular step. I would also urge the learned Senior Counsel for the first
and second respondents to urge the said respondents to take steps to
protect them from any allegation of systemic or even indirect
discrimination against women employees and ensure compliance with the
principles of gender equality as enunciated by the Constitution.
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W.P.NO.28838 OF 2024
98.In the result:
(i)The writ petition stands disposed of with the above
observations and directions.
(ii)WMP No.37070 of 2024 is allowed. The interim order
granted is vacated, but with a direction to the first and second
respondents to comply with the directions issued.
(iii)No costs.
(iv)Consequently, connected miscellaneous petitions are
closed.
28.04.2025
Index : Yes / No
Neutral Citation : Yes / No
Speaking Order : Yes / No
sli/TK
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W.P.NO.28838 OF 2024
To
1.The Managing Director and Chief Executive Officer
Union Bank of India
Central Office
No.239, Vidhan Bhawan Marg,
Nariman Point, Mumbai – 400 021.
2.The Chief General Manager
Union Bank of India
Human Resources Department
Central Office
No.239, Vidhan Bhawan Marg,
Nariman Point, Mumbai – 400 021.
3.The Secretary
Government of India
Department of Financial Services
Jeevan Deep, Parliament Street,
New Delhi – 110 001.
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W.P.NO.28838 OF 2024
C.V.KARTHIKEYAN, J.
sli/TK
28.04.2025
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