JUDGMENT
Bhagabati Prasad Banerjee, J.
1. This appeal is against the order dated August 31, 1992
passed by the Learned Trial Judge in C.O. No. 16228(W) of 1991.
A writ application was filed challenging the order of transfer transferring
the appellant- petitioner to the North Eastern Zone by the order
dated August 19, 1991 while he was posted at Debipur, Burdwan in the
State of West Bengal.
2. The appellant is a member of Scheduled Caste and
joined the service under UCO Bank as a clerk and subsequently
on promotions selected in the post of Officer Grade D now known as
Officer Scale No. 1; The appellant claims to be the President of
the Bengal Provincial Depressed Classes League (UCO Bank Unit)
(hereinafter referred to as the “League”) and alleged that the
said transfer from Calcutta to North Eastern Zone will seriously affect
the interest of the Scheduled Castes employees of the said Bank. It
was further alleged that the petitioner made a representation as the
President of the said League to the Parliamentary Committee on the
Welfare of the Scheduled Castes and Scheduled Tribes whereupon an
enquiry was held into the activities of the said Bank relating to
irregularities in filling up the vacancies which were kept reserved
for Scheduled Castes and Scheduled 3 Tribes in the service of the
Bank. According to the appellant this had caused annoyance to
the authorities concerned who had passed order of transfer. The
validity and/or illegality of the said order of transfer was challenged
in the writ application, inter alia, on the grounds (a) that there was
discrimination in the matter of transfer inasmuch as several
other officers who are allowed to stay 10 years or more in
Calcutta had not been transferred, whereas the appellant was
singled out for discriminatory treatment, (b) the order of transfer was
made in violation of the transfer policy of the Bank wherein it is
provided that “The placement and movement of persons will have
to be made after due consideration of all aspects and if any
exceptions are required to be made for any justifiable reasons, the
same has to be done for which reasons are to be recorded. We are keen
that the transfer policy should lead to growth of the individual and Bank,
and as far as possible, Officers in Scale II and Scale III will be posted in
their Home States (i.e. State of domicile). If however, there is excess
of officers in a State they would, as far as possible, be transferred
to the neighbouring States”, (c); There are two other leaders of
Scheduled Castes Union, namely Sri B.C. Poddar and Mr. G.K.
Mondal, who were not transferred in view of the protection
guaranteed to the union officials in terms of the guidelines for
transfer of the officers dated August 1, 1984 and that even though
the appellant was similarly situated to that of Mr. B.C. Poddar and
Mr. G.K. Mondal, such transfer not only amounts to discrimination but
also amounts to depriving the appellant from performing his trade
union activities for the welfare of SC/ST employees of the said Bank
and (d) lastly the appellant was transferred in place of I.N. Mallick,
an officer of the Bank who was to come back from that North Eastern
Zone and that for accommodating the said Sri I.N. Mallick, the
appellant was transferred allegedly with the interest of the Bank
which was contrary to facts and the same was mala fide. The
Learned Trial Judge on consideration of the matter found that the
appellant could not make out a case of any discrimination or that
the order was mala fide or suffers from any illegality
necessitating any interference by this Court and accordingly,
dismissed the writ application.
3. Mr. Kashi Kanta Moitra, learned Advocate appearing on
behalf of the appellant, submitted that the order of transfer in the
facts and circumstances of the case amounts to interfering with
the trade union activities of the appellant who claimed to be the
President of the said League and that if the appellant is posted at
North Eastern Zone in that event, the appellant would not protect
the interest of the members of the said union. Secondly, it was
submitted that the said order of transfer was based, as a matter
of fact, on a retaliation of lodging a complaint before the Parliamentary
Committee against the Bank for which the said Committee
caused an enquiry. Thirdly, it was submitted that the order of trans-
fer could not be made in violation of the transfer policy and/or
guidelines made in this behalf which are binding upon the Bank.
Lastly, it was submitted that several other officers similarly
situated had not been transferred out of Calcutta even though they are
posted in Calcutta for more than 10 years and whereas the appellant has
been singled out from Calcutta Zone to North Eastern Zone which,
according to the appellant, was ar-bitrary and discriminatory.
4. On behalf of the respondents-Bank it was submitted by the
learned Advocate that the order of transfer was passed strictly in
accordance with the transfer policy and/or guidelines laid down
by the Bank in this behalf. It was submitted that prior to the present
posting at Debipur, Burdwan the appellant was posted in
Calcutta for about 10 years and at Debipur he was posted for about 4
years. It was further submitted on behalf of the respondents-
Bank that in the year 1987 the petitioner was sought to be transferred
to Orissa but the said order of transfer was challenged or withdrawn
by the Bank on compassionable ground since the appellant’s
mother was suffering from Cancer and the appellant was posted at
Debipur Branch. On February 6, 1988 in Burdwan which is in close
proximity of his residence for attending to the requirement of his
ailing mother and that Sri B.C. Poddar and Sri G.K. Mondal
represent majority of the SC/ST employees and that
accordingly, they were treated as exempted category as contained in
the guidelines dated August 1, 1984; In the said guidelines dated
August 1, 1984 “Office Bearers of the AIUCEOF, AIUCBOA and
NFUCBU, viz., the President, General Secretary, Organising Secretary,
and Treasurer, during their terms of office “falls to be exempted
from inter-State transfer (7)(c) of the guidelines for the transfer
and placement of officers” dated August 1, 1984 (and that the
respondent-Bank does not admit that the appellant was the
President of any Trade Union. On the contrary, it was submitted that
the Association which is allegedly represented by the appellant
was Bengal Provincial Depressed Classes League (UCO Bank). It was
specifically alleged that the said League is not a trade union or a union of
the officers of the said Bank.
5. It was submitted that the said League represents a small
fraction of the employees of the said Bank whereas the union or
organisation represented by Sri Poddar and Sri Mondal represents
the majority of the SC/ST employees of the said Bank. In this
connection it was pointed out that for the last few years, the
management has held meeting for discussing regarding the
interest of the employee in which Sri Poddar and Sri Mondal
attended to represent SC/ST employees of the said Organisation.
It was further denied by the respondent Bank that the appellant is
President of All India UCO Bank SC/ST Employees League and that
the said League had never been invited in recent past since the
said League is a minority SC/ST Association having very few members in
or around Calcutta and that they have no members outside Calcutta
and/or West Bengal. This facts was sought to be disputed on
behalf of the appellant.
6. Regulation 47 of UCO Bank (Officers’) Service Regulations,
1979 provides “Every officer is liable to transfer to any office or
branch of the Bank or to any place of India”. The transfer policy on
which such reliance was placed also provides that “his place of
posting before the expiry of three years from the date of his
posting, except in difficult centres, where the stay will not be more
than two years. Subject to the exigencies of Administration, no officer
will be retained in the same branch/office for a period , in excess of 3-5
years. By difficult centres it is meant such centres as may be
determined by the Bank after determining the criteria therefor”,
and that for North Eastern Zone the period of stay ordinarily is
two years and that it is also evident that the appellant has been
transferred to that Zone in place of I.N. Mallick who is to come back to
this Zone after completing two years’ period and that
accordingly, it does not appear that only for accommodating I.N.
Mallick, appellant has been transferred. It was a gross transfer. Mr.
Mallick has been brought from that Zone as he has completed
two years’ period of service there. Accordingly, in this court it cannot
be alleged that there was any irregularity committed by the Bank.
The transfer is an express condition of service and that transfer is
made not under any rule having a statutory force. It is well settled
principle that unless it could be established that an order of transfer
is in the face of it mala fide and was not in the interest of the ad-
ministration and/ or it is violative of any of the rules of transfer
or the like, the validity of the order of transfer could not be
challenged on any other grounds. An employer in this respect is re-
quired to act fairly. The guidelines for transfer and placement of
officers dated August 1, 1984 had been provided in protection of
the Union allegedly represented by the appellant. It is true that the
union represented by Mr. Poddar and Mr. Mondal is not also
mentioned in that guidelines for any protection. Of course, it is not
for us to make any comment about transfer policy. When under the
statutory rules an officer is transferred in that event merely on
the ground that an employee happens to be a union leader could
not be transferred would be contrary to the interest of an organisation.
Union leader cannot claim any preferential treatment and/or any im-
munity from transfer when transfer is a condition of service and in
this regard a discrimination could not be made between an employee
who is not a union leader and an employee who is a union leader.
Under our Constitution an employee has trade union right
subject to conditions and restrictions. The trade union activities are not
to be performed during the office hours inasmuch as an employee is
paid by public exchequer for his official duty and not for his trade union
activities. Trade Union activities are to be performed beyond office hours.
In the matter of laying down the principles and guidelines for
transfer the authorities concerned cannot lay down any rule which
is contrary to the statutory rules. In the instant case, the Bank has
denied and disputed that the appellant happens to be the President UCO
Bank SC/ST Council as alleged or at all. The appellant has completed
about 14 years of service in or around Calcutta and accordingly,
the appellant cannot claim any protection against the transfer
from one Zone to another. Sri Poddar and Sri Mondal the Principal
Office Bearers of UCO Bank SC/ST Employees Council were not
transferred since they were treated as exempted category and
that on the basis of the materials placed before us, a case of
discrimination could not be made by transferring the appellant
and not transferring the said Mr. Poddar and Sri Mondal. Further
with regard to several other officers whose names have been disclosed
were not transferred even though they were in the present Zone for
more than 10 years, in order to make out a case for discrimination,
the onus is heavily upon the appellant. The Supreme Court in the case of
Katra Education Society v. State of U.P. held that
“a plea of unlawful discrimination cannot be adjudged unless
petition contains full averments of the ground on which equality is
claimed and the denial of equality is pleaded as not based on rational
relation to the object sought to be achieved by actions which makes a
classification”. On the basis of the pleading it appears that Mr.
Poddar and Mr. Mondal who were Secretary and President
respectively of UCO Bank SC/ST Council which represents the
majority members of the reserved community and that Mr. Poddar
and Mr. Mondal cannot be treated as similarly situated to that of the
appellant-writ petitioner. With regard to other officers mentioned in
the petition it cannot be said that any discrimination had resulted
in transferring the appellant. The transfer is a policy matter of the
Bank and that in the facts and circumstances of the case we do not find
any reason to interfere with the order of transfer of the appellant and
we do not find any ground whatsoever to interfere with the order
passed by the learned trial Judge dated March 31, 1992 and accordingly,
the appeal is dismissed without any order as to costs. The
appellant is given liberty to join the new place of posting within a
period of 15 days from today, if not, already joined in accordance
with the order of transfer and in case the appellant joined in the
new place of posting in terms of this order in that event, no action
should be taken against the appellant for not complying with the order
of transfer.
7. I agree.
Ashok Kumar Chakravarty, J.