Rajasthan High Court

Smt. Anjali Ahmed Dwarika Prasad ... vs Bank Of Maharashtra on 9 December, 2021

Bench: Rekha Borana

          HIGH COURT OF JUDICATURE FOR RAJASTHAN
                      BENCH AT JAIPUR

                     S.B. Civil Writ Petition No. 11210/2019

Smt. Anjali Ahmed Dwarika Prasad W/o Shri Waseem Ahmed,
Aged About 32 Years, R/o D-32, Ballabh Bari, Gumanpura, Kota
(Raj.)
                                                                                    ----Petitioner
                                               Versus
1.         Bank        Of     Maharashtra,             Through          Its     Chairman           And
           Managing Director, Head Office- Lokmangal, 1501, Shivaji
           Nagar, Pune-5 (Maharashtra)
2.         Assistant General Manager (Hrm), Bank Of Maharashtra,
           Head Office- Lokmangal, 1501, Shivaji Nagar, Pune-5
           (Maharashtra)
3.         Zonal Manager, Bank Of Maharashtra, 6Th Floor, Fortune
           Heights, Ahinsha Circle, C-Scheme, Jaipur (Raj.)
                                                                               ----Respondents

For Petitioner(s)                   :     Mr. Shiv Charan Gupta
                                          Mr. Vinod Kumar Gupta
For Respondent(s)                   :     Mr. Dharam Veer Tholia with
                                          Mr. Himanshu Jain
                                          Mr. Himanshu Tholia


                  HON'BLE MS. JUSTICE REKHA BORANA
                                               Order

09/12/2021

The present petition has been filed with the following

prayers:

"(i) To quash and set aside the impugned transfer order dated 01.06.2019 (Annexure-3) issued by Respondent No.2 whereby the humble petitioner has been transfer from Zone Jaipur to Zone Ahmedabad.

(ii) To not to transfer the humble petitioner against the office memorandum dated 08.10.2018 (Annexure-2) issued by Ministry of Personnel, Public Grievances & Pensions, Department of Personnel and Training, Government of India."

(D.B. SAW/829/2020 and 1 more have been filed in this matter. Please refer the same for further orders)

(2 of 8) [CW-11210/2019]

The brief facts of the case are that the petitioner was

appointed as a Manager with the respondent-Bank on 29.04.2013

and after being promoted, she was transferred to Jaipur on

16.08.2016. Since her date of appointment, she is working in the

Jaipur Zone only. Vide the impugned order dated 01.06.2019, she

was transferred to Ahmedabad which order is under challenge by

way of present writ petition.

It is relevant to note that the present writ petition was

earlier disposed of vide order dated 02.02.2021, while making

interim order absolute and directing the respondent-Bank to

decide the representation of the petitioner. The respondent-Bank

preferred a Special Appeal against the said order and vide order

dated 29.07.2021, the Special Appeal of the Bank was allowed.

The order passed by the learned Single Judge was set aside

and the matter was remanded back for disposal on merits.

However, while disposing of the appeal, the Division Bench

directed that the interim order would remain in operation till the

final disposal of the writ petition.

Therefore, the present writ petition has been heard at length

on merits.

The case of the petitioner is that in keeping with the

provisions under Section 2(r) and 2(t) of Rights of Persons with

Disabilities Act, 2016 (hereinafter referred to as the 'Act of 2016'),

the Central Government issued memorandum/notification dated

08.10.2018.

Clause 3(i) of the said office Memorandum provides as

under:

"(i) A Government employee who is a care-giver of dependent daughter/son/parents/spouse/brother/sister with Specified Disability, as certified by the certifying

(D.B. SAW/829/2020 and 1 more have been filed in this matter. Please refer the same for further orders)

(3 of 8) [CW-11210/2019]

authority as a Person with Benchmark Disability as defined under Section 2(r) of the Rights of Persons with Disabilities Act, 2016 may be exempted from the routine exercise of transfer/rotational transfer subject to the administrative constraints."

Section 2(r) of the Act of 2016 reads as under:

(r) "person with benchmark disability" means a person with not less than forty per cent. of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority;"

Learned counsel for the petitioner submitted that in view of

notification dated 08.10.2018, the petitioner could not have been

transferred as her husband who suffered from locomotor disability

amounting to more than 40 per cent and her child of 1.5 years of

age are totally dependent on her. It has been further averred that

disability of her husband being more than 40 per cent is

specifically governed by the Disabilities Act of 2016 and hence, the

notifications issued by the Central Government from time to time

prohibiting the transfer of any employee on whom spouse/

parents/children are totally dependent because of any Benchmark

disability, would be applicable in her case.

Learned counsel for the petitioner has relied upon a

judgment of Delhi High Court passed in the case of V.K. Bhasin

Vs. State Bank of Patiala and ors.(decided on 03.08.2005)

and Anju Mehra Vs. Canara Bank & Ors. in W.P. (C)

No.7927/2020 (decided on 05.11.2020).

Learned counsel for the petitioner has also relied upon the

communication dated 23.05.2017 issued by the Ministry of

Finance whereby it has been directed that all the provisions of the

Act of 2016 be followed as far as applicable. He has further relied

(D.B. SAW/829/2020 and 1 more have been filed in this matter. Please refer the same for further orders)

(4 of 8) [CW-11210/2019]

upon a communication of respondent-Bank dated 31.05.2011

whereby it has been provided that as far as possible the Officers

whose dependents are differently abled, be exempted from

transfer and continued for retention.

Further, the counsel has also relied upon the communication

of Ministry of Finance whereby it has been directed that the

female candidates be accommodated as far as possible to the

place where her spouse is posted or where her parents are

stationed.

Further, counsel for the petitioner has also relied upon Clause

51 of the Officers' Service Regulations, 1979 issued by the Bank of

Maharashtra which provides that the Government's decision would

be construed to be the initial decision of the Board.

Per contra, learned counsel for the respondent(s) has stated

that transfer is a necessary corollary of an employment and is

governed by the basic principles and laws governing the transfers.

He has relied upon Clause 7 of the appointment order of the

petitioner herself wherein it has been specifically mentioned that:

"You are liable to be posted/transferred as an Officer in any other Department/Branch at any place where the Bank has/may have its Branch/Office according to exigences /requirements of the Bank."

Learned counsel has further argued that the petitioner is

working in Jaipur Zone right from the year of appointment i.e.

2013 and she cannot claim as a matter of right that she can never

be transferred because of her husband being disabled. It has been

further averred that in the year 2018, the petitioner was

transferred to Pune but at that juncture of time too, she had

moved a representation for cancellation of transfer order and

considering the same sympathetically, her transfer was cancelled.

(D.B. SAW/829/2020 and 1 more have been filed in this matter. Please refer the same for further orders)

(5 of 8) [CW-11210/2019]

Therefore, it cannot be presumed that the petitioner would be

granted the same benefit during the complete tenure of her

employment.

Learned counsel has further argued that the disability of the

husband of the petitioner is an orthopedic disability which does

not restrain him from moving, walking or performing his daily

jobs. Moreover, the medical facilities at Ahmedabad are better

from all aspects and it cannot be said that the petitioner would

face any deficiency of treatment of her husband at Ahmedabad.

Learned counsel for the respondent further specifically

averred that the present petition deserves to be dismissed even

on the ground of concealment of material facts. It has been stated

that the petitioner had moved an application to the Chief

Commissioner for Persons with disabilities on 11.06.2019. Acting

upon the same, notices were issued by the Court of Chief

Commissioner for Persons with disabilities to the respondent-Bank

and vide notice/order dated 02.07.2019, the respondent-Bank was

directed to examine the request of Smt. Anjali Ahmed and submit

the action taken in the matter to the Court within 30 days from

the date of receipt of the communication.

Counsel has argued that having availed a specific remedy

available to the petitioner it was not open for the petitioner to file

the present writ petition without disclosing the facts in the present

petition.

Counsel for the respondents have relied upon the judgment

passed by the Hon'ble Apex Court in Civil Appeal No.

332/2001: Samay Singh Vs. State of Haryana and ors., and

Union of India and Anr. Vs. Deepak Niranjan Pandit and

Anr.:(2020) 3 SCC 404 and the judgment passed by this

(D.B. SAW/829/2020 and 1 more have been filed in this matter. Please refer the same for further orders)

(6 of 8) [CW-11210/2019]

Court in SBCWP No. 197/2020: Anurag Sharma Vs. Bank of

Maharashtra and ors.

Heard the counsel for the parties and perused the material

available on record.

There is no doubt over the proposition that the

Order/Circular/memorandum/notification as issued by the Central

Government from time to time would be applicable on the Public

Sector Banks. So far as Office Memorandum dated

08.10.2018 is concerned, it provides that an employee would be

exempted from the routine exercise or transfer/rotational transfer

subject to the administrative constraints. So far as the case of the

petitioner is concerned, it is an admitted position that she had

been working in the Jaipur Zone right from the year 2013 and

even in the year 2018 when she was transferred to Pune, the

same transfer order was revoked keeping into consideration the

provisions as mentioned in the said circulars and memorandum.

While framing any beneficial legislation it cannot be the

intention of the legislature that the same be used as a tool by an

employee in her/his favour in eternity. A beneficial legislation is

framed to grant relief to the employee to certain extent but it

cannot be termed to be an ultimate bar or restraint against the

employer to even exercise its power where administrative

exigencies do exist.

In the present case, the case of the petitioner has been

considered sympathetically once and it cannot be assumed that

the petitioner would therefore, claim as a matter of right that she

cannot be transferred to any other place ever. So far as the

judgment in the case of Anju Mehra (supra) is concerned, the

same was a case where the employee herself was a person with

(D.B. SAW/829/2020 and 1 more have been filed in this matter. Please refer the same for further orders)

(7 of 8) [CW-11210/2019]

90 per cent disability and it was specifically noted that the place

where she was transferred would require her to change the public

transport three times in a single journey to her residence in New

Delhi. So far as the case of V.K. Bhasin (supra) is concerned,

the same was also a matter where the employee himself was a

disabled person declared with the permanent disability after

having gone through 5 surgical operations on his leg. It can be

noted that both the cases were of extreme circumstances where a

sympathetic consideration was a must and therefore, the Court

took a view in the employees favour. The present matter can by

no stretch of imagination be termed to be a matter of that

extreme consideration and cannot be said to be covered by the

judgments relied upon by the counsel for the petitioner. In the

case of Deepak Niranjan Pandit and Anr. (supra), the Hon'ble

Apex Court while interfering with the order of the High Court

observed as under:

"In our view, neither of these reasons can furnish a valid justification for the High Court to take recourse to its extraordinary jurisdiction Under Article 226 of the Constitution in passing an order of injunction of this nature. Significantly, the High Court has not even found a prima facie case to the effect that the order of transfer was either mala fide or in breach of law. The High Court could not have dictated to the employer as to where the Respondent should be posted during the period of suspension. Individual hardships are matters for the Union of India, as an employer, to take a dispassionate view. However, we are categorically of the view that the impugned order of the High Court interfering with the order of transfer was in excess of jurisdiction and an improper exercise of judicial power. We are constrained to observe that the impugned order has been passed in breach of the settled principles and precedents which have consistently been enunciated and followed by this Court. The manner in which judicial power has been exercised by the High Court to stall a lawful order of transfer is disquieting. We express our disapproval."

(D.B. SAW/829/2020 and 1 more have been filed in this matter. Please refer the same for further orders)

(8 of 8) [CW-11210/2019]

So far as the circulars and guidelines issued by the Central

Government are concerned, it is relevant to note that none of

them imposes a complete bar on the power of transfer being

exercised by the Public Sector undertaking. All the guidelines

provide for a sympathetical consideration as far as possible. The

petitioner already been granted those considerations and being

posted in the same Zone from last 8 years cannot be held to be

entitled to the same considerations forever.

In view of the observations made by the Hon'ble Apex Court

and in view of the observations made hereinabove, this Court is