IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. <<>> :: O R D E R :: Vasudev Vyas Vs. National Insurance Co. Ltd. & Ors. S.B. CIVIL WRIT PETITION NO.5661/2006. Date of Order :: 30th June 2008. PRESENT HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Anil Bhandari ] Mr. Sunil Bhandari ], for the petitioner. Mr. M.S. Singhvi ] Mr. Akhilesh Rajpurohit ], for the respondents. Mr. Vineet Dave ] ...... Reportable BY THE COURT: By way of this writ petition, the petitioner, working on the post of Assistant (C) with the respondent National Insurance Company Limited [hereinafter referred to as the ‘respondent Company’] and having been transferred from Divisional Office, Jodhpur to Branch Office, Balotara, has challenged the transfer order dated 18.08.2006 (Annex.7) as being violative of statutory requirements. 1 Put in a nut-shell, the contentions of the petitioner are that a part of Transfer Policy as framed, and the consequential Administrative Instructions as issued by the respondent Company are not in conformity with the statutory Scheme related with such transfers; and that his transfer order has been issued by an officer who could not have been and has not been authorised to do so; and further that the transfer order has been issued even contrary to the terms of the Transfer Policy. The petitioner has averred in the writ petition that he was appointed by the respondent Company as sub-staff on compassionate grounds by the order dated 01.12.1983 (Annex.1), he joined the services at Branch Office, Jodhpur on 19.12.1983, and he was confirmed on the post of sub-staff with effect from 19.06.1984; then, he was promoted as Record Clerk by the order dated 15.06.1989 (Annex.2) and joined as such on 27.06.1989; and then, he was promoted to the post of Assistant (C) by the order dated 22.09.2000 (Annex.3) and joined as such on 22.09.2000. The petitioner has referred to the notification dated 21.12.2005 (Annex.4) whereby the Government of India issued General Insurance (Rationalisation and Revision of Pay Scale and other Conditions of Service of Supervisory, Clerical and Subordinate Staff) Second Amendment Scheme, 2005 2 [hereinafter referred to as ‘the Amendment Scheme of 2005’] in order to amend, with effect from 01.08.2002, the General Insurance (Rationalisation and Revision of Pay Scale and other Conditions of Service of Supervisory, Clerical and Subordinate Staff) Scheme, 1974 [hereinafter referred to as ‘the Scheme of 1974’]; and has pointed out that paragraph 18 of the Scheme of 1974 dealing with ‘transfer and change of place of work’ of the employees was substituted by the provisions contained in paragraph 11 of the Amendment Scheme of 2005 whereby the Company or Corporation may frame Transfer and Mobility Policy, as approved by its Board; and has averred that under the said provision, any employee of Supervisory, Clerical and Subordinate Staff may be transferred from one department to another in the same office, from one office to another in the same station or from one station to another only on the basis of requirement or need. [Sub-paragraph (1) of the said paragraph 18 as substituted by the Scheme of 2005 being of repeated occurrence in the discussion hereafter, has also been referred to as ‘the paragraph 18(1) of the Scheme’ and, similarly, sub-paragraph (2) thereof has also been referred to as ‘the paragraph 18(2) of the Scheme’]. The petitioner has further pointed out that in pursuance to the said notification, i.e., the Amendment Scheme of 2005, 3 the respondent Company issued a Transfer and Mobility Policy [hereinafter referred to as ‘the Transfer Policy’ or ‘TMP’] for Supervisory, Clerical and Subordinate Staff on 17.05.2006 (Annex.5) and as per sub-clause 5.5 of Clause 5 of TMP, the competent authority, if it considers necessary to do so to meet the office exigencies shall have discretion of restricting the number of transfers from a particular station to a maximum of 25% of the total classwise (Class III and IV separately) strength of the employees at that station and, as per sub- clause 5.6, a classwise list of employees for each station who have completed ten years of continuous stay at the particular station may be prepared and in the descending order of the length of stay, from the top of such list, a number equivalent to 25% may be taken out. Thus, according to the petitioner, an employee who is senior in the class shall be transferred in the first instance. The petitioner has pointed out that by clause 7 of TMP, General Manager (Personnel) of the Company is authorised to prescribe the competent authorities for issuance of various types of transfer orders under the said Transfer Policy besides framing the Administrative Instructions for implementation of various provisions of this Policy; and has averred that according the notification issued by the Central Government (i.e., the Amendment Scheme of 2005) the CMD was the only 4 authorised person to transfer the services of the Supervisory, Clerical and Subordinate Staff and there is a provision that he may authorise any other officer in this behalf as competent authority; and has, therefore, stated the meaning that as per TMP issued by the respondent Company, he has authorised General Manager (Personnel) to make transfer order but the said General Manager has no authority to further delegate power to transfer any employee. The petitioner has further averred that to his knowledge, the respondent Company has issued Administrative Instructions on the said Transfer Policy but being not in possession of such Instructions issued by the respondent Company, has placed on record as Annexure-6 a copy of the similar nature Instructions issued by another insurance company, namely, The New India Assurance Company Limited. It may be pointed out that during the course of submissions in this matter, learned counsel for the respondent has placed on record a copy of the Instructions so issued by the respondent Company and, as agreed, the same have been taken into consideration as substitute of the document Annexure-6. The petitioner has pointed out that the competent authority for issuance of transfer order has been prescribed in clause 10 of such Administrative Instructions; and as per sub- clause (2) of clause 10, for transfer from one office to the other 5 within the same region, the prescribed authority is Chief Regional Manager at regional office. Stating his case, the petitioner has submitted that the respondent No. 2 (the Regional Manager of the respondent Company at Jaipur) has, by the order dated 18.08.2006 (Annex.7), transferred his services from Divisional Office at Jodhpur to the Branch Office at Balotara; and, according to the petitioner, there was a stay order from Hon’ble Madras High Court wherefor the transfer order could not be put into effect. While maintaining that only the CMD or the General Manager were the competent authority to issue transfer order, the petitioner has contended that even as per Administrative Instructions, the Chief Regional Manager was the competent authority and the order issued by the Regional Manager remains unauthorised. According to the petitioner, Smt. Sangeeta Vijay and Shri Ravindra Bohra were appointed as Assistant in the year 1985 at Jodhpur office and Shri Rajesh Dadhich was appointed as Assistant in the year 1987; and Smt. Sangeeta was promoted to the cadre of Senior Assistant in the month of September 2003 and she jointed her services on the promoted post at Jodhpur. The petitioner has suggested that himself having been appointed/promoted as Assistant only in the year 2000, the said three employees are senior to him in the cadre 6 of Assistant by about 13 years and has made a comment that the said three persons ‘are senior to petitioner by more than two years in the particular class’. The petitioner has given the nomenclature of the different posts in the respondent Company that are divided into four classes and has averred that being junior person he could not have been transferred. Stating himself being aggrieved by the transfer order dated 18.08.2006, the petitioner has preferred the writ petition and has taken the grounds in the manner that as per paragraph 11 of the Amendment Scheme of 2005, the CMD or any officer authorised by him may transfer an employee from one station to another and has drawn the meaning that the competent authority to transfer is CMD and he may delegate his power to any other officer and the CMD has delegated his powers to the General Manager (Personnel) but the transfer order having been issued by the Regional Manager remains unauthorised; that as per clause 7 of TMP, the General Manager (Personnel) cannot further delegate his power to any other officer and as the authorities as prescribed under clause 10 of the Administrative Instruction dated 15.06.2006 show that the said General Manager has further delegated his power to other officers that remains illegal and clause 7 of TMP and clause 10 of the Administrative Instructions dated 15.06.2006 deserve to be set aside; that as per sub-clause 5.6, an 7 employee in the clerical cadre Class III who is senior is required to be transferred and the petitioner having been appointed/promoted in the cadre of Assistant in the year 2000 and as Record Clerk in the year 1989 remains much junior to the aforesaid three persons and, therefore, the transfer order dated 18.08.2006 being in violation of TMP deserves to be quashed; that as per Administrative Instructions, the Chief Regional Manager at the regional office concerned may issue the transfer order but the transfer order has been issued by the Regional Manager who remains below the authority of Chief Regional Manager and, therefore, the impugned transfer order is without jurisdiction. The petitioner has prayed, on the grounds aforesaid, that the impugned transfer order dated 18.08.2006 may be quashed and set aside, and clause 7 of TMP and clause 10 of the Administrative Instructions may be quashed and the respondents may be restrained from transferring him as per sub-clause 5.6 of Clause 5 of TMP. The respondents in their reply in the first place have stated preliminary objections that the TMP was framed with negotiations and interactions between the Managements of all the four General Insurance Companies on one hand and the respective unions of the Companies on the other; and, therefore, it was not open for the petitioner to challenge any 8 part and/or Clause of TMP. The respondents have also contended that the policies framed by the Government, after taking into consideration all the relevant aspects, are not open to judicial review unless there be any violation of constitutional provisions or the statute; and that the petitioner has raised technical objections by misreading and misinterpreting the text of TMP and has otherwise failed to point out any infringement of constitutional or statutory provisions. The respondents have also pointed out that such Transfer and Mobility Policy was subjected to challenge before the Hon'ble Madras High Court and an order passed by the said Hon'ble High Court on 25.09.2006 has been annexed as Annexure-R/1 whereby the Court declined to interfere in extraordinary writ jurisdiction at the instance of Chennai Region General Insurance Employees' Association but of course directed the concerned Chief Labour Commissioner to proceed with the conciliation proceedings expeditiously. The respondents have further pointed out that another writ petition was filed before the Hon'ble Bombay High Court that was disposed of by the order dated 10.12.2006, particularly for the same having not been pressed in view of the order aforesaid as passed by the Madras High Court; however, certain directions were issued confined to the employees belonging to the Scheduled Castes and Scheduled Tribes. 9 The respondents have further stated that TMP has been framed with care and caution and after considering the weightage of administrative exigencies; that in the Government service, a person does not carry right to remain posted only at one place and the petitioner cannot claim his right to remain at Jodhpur only for all the times to come; and his transfer to nearby place Balotra in view of the administrative exigency and in consonance with TMP within a radius of 110 kms. cannot be questioned in the writ petition. The respondents have further averred that the contention on want of authority was not correct because the Notification dated 21.12.2005 (the Amendment Scheme of 2005- Annex.4) read with TMP dated 17.05.2006 (Annex.5) perfectly empowered the respondent No.2, i.e., the Regional Manager at Jaipur to pass the transfer order. It has also been suggested that it being a matter relating to industrial dispute and the petitioner having efficacious alternative remedy, the writ petition is liable to be rejected; and that the petitioner having failed to implead the aforesaid three persons as parties, the grievance as stated in their relation cannot be considered. The respondents in their paragraph-wise reply have not denied the facts relating to the petitioner's appointment in the year 1983 and of his other promotions but have maintained 10 that throughout his service, the petitioner has remained posted only at Jodhpur. Issuance of the Amendment Scheme of 2005 being not in dispute, the respondents have reproduced its Clause 11 whereby paragraph 18 of the Scheme of 1974 was substituted. The respondents have averred that the CMD or any other officer authorised by him in this behalf may transfer an employee and have questioned the interpretation put by the petitioner that the authority to transfer cannot be delegated further. The respondents have further submitted that the TMP and Administrative Instructions are unambiguous and clear; and have reproduced Clause 7 of TMP with the submissions that the said Clause authorises the General Manager (Personnel) to prescribe the competent authorities for issuance of transfer orders. It is submitted that every General Insurance Company like the respondent Company having a huge administrative domain, even when having Head Office at a particular place, is having different Regional Offices in the other States in the country and likewise the Regional Office for the State of Rajasthan is situated at Jaipur and is headed administratively by the Regional Manager; and, therefore, the Regional Manager has been authorised to pass the transfer order. The respondents have also reproduced Clause 10 of the Administrative Instructions dated 15.06.2006 and 11 submitted that such instructions were issued to implement the transfer policy; and in the entire channel of hierarchy right from Head Office to Branch Office, such delegation of powers for transferring the employee was an absolute necessity and such aspects cannot be questioned before the Constitutional Courts. With reference to the averment of the petitioner about stay order passed by the Hon'ble Madras High Court, it has been pointed out that such stay order had been vacated. Concerning the three persons claimed to be senior to the petitioner, it has been questioned, again, that the petitioner has not impleaded them as parties; and it has further been averred that earlier promotions of these three persons cannot create any legal right in favour of the petitioner so as to claim stay on his transfer order. The respondents have, thus, contended that on every ground, the writ petition remains deficient enough and deserves to be dismissed. The petitioner has proceeded to file rejoinder to the reply with the submissions that he has only challenged Clause 7 of TMP and Clause 10 of Administrative Instructions that are, according to him, contrary to the notification issued by the Central Government. The petitioner has denied that there was any consent of the employees' union on TMP. It has further been submitted that in the case before the Hon'ble Madras 12 High Court, the petitioner had already availed of the alternative remedy before the Industrial Tribunal and, therefore, the petition was dismissed; however, the petitioner has maintained that in the matters of the present nature, Industrial Disputes Act is not applicable. The petitioner has reiterated that he has challenged his transfer order as being without jurisdiction, contrary to the notification and having been issued by the authority not competent to do so and, therefore, remedy under Article 226 of the Constitution of India is available to him. The petitioner has further pointed out that he has not claimed any relief against the aforesaid three persons and his only submission had been that they are senior to him; and has denied the allegation on his intention to remain at Jodhpur with the submissions that the transfer should be made in accordance with law and that the impugned transfer order was not issued by the competent authority. In relation to paragraph 3 of the paragraph-wise reply, the petitioner has pointed out that it would require no rejoinder; that the respondents themselves have admitted that the CMD or any other officer authorised in this behalf may transfer an employee; and has averred that as per Clause 7 of TMP, the General Manager (Personnel) was authorised by the CMD to transfer and there could be no further delegation of powers to transfer by the delegated authority; and hence, the petitioner 13 maintains, the transfer order issued by the Regional Manager is without jurisdiction. The petitioner has reiterated the submissions that even if for the sake of arguments it be assumed that the General Manager may delegate his powers to transfer, yet by the Instructions (Annex.6) he has delegated the power of transfer from one office to another within the same region to the Chief Regional Manager but, the impugned transfer order has been issued by the Regional Manager, who is below in rank to the Chief Regional Manager, and as such only by an incompetent authority. It may be pointed out that in this writ petition, show cause notice was issued on 03.10.2006 and by way of interim order it was directed that the petitioner shall not be relieved from the post of Assistant in the office of Senior Divisional Manager of the respondent Company at Jodhpur, if not already relieved. The respondents submitted a reply to the writ petition on 02.03.2007 and also moved an application under Article 226 (3) of the Constitution of India that was considered and rejected on 17.04.2007 finding a prima facie case in favour of the petitioner; and the matter was ordered to be listed for admission. The respondents preferred an intra-court appeal against the aforesaid order dated 17.04.2007, being SAW No. 548/2007, that was decided on 22.05.2007. The 14 Hon'ble Division Bench noticed the submissions on behalf of the Company that the case would be governed by the aforesaid paragraph 18 (1) of the Scheme and noticed that the petitioner has urged that his case was governed by sub- paragraph 2 of paragraph 18. The Hon'ble Division Bench pointed out that the learned Single Judge had expressed no opinion on merits of the case and while considering the application under Article 226 (3) of the Constitution of India, the learned Single Judge had only expressed prima facie opinion. The appeal was of course dismissed but with the observations that request may be made for hearing of the writ petition at an early date. Thereafter, on 29.05.2007, the respondent Company moved an application for early hearing of the writ petition and while filing a copy of the order dated 22.05.2007 as passed by the Hon’ble Division Bench in SAW No. 548/2007, also annexed as Annexure-R/4 a copy of the circular dated 14.08.2006 that was issued for implementation of the Transfer Policy. It may also be pointed out that during the course of submissions in this writ petition, the learned counsel for the respondents has placed for perusal two lists of Class III employees prepared by the respondent Company in the years 2006 and 2007 for carrying out the exercise under the Transfer Policy; and the same have been taken on record as agreed. 15 Learned counsel for the petitioner has referred to the Amendment Scheme of 2005, the TMP, the Administrative Instructions, the impugned order, and the facts as stated in the writ petition and submitted that the impugned transfer order remains wholly unauthorised and without jurisdiction. Learned counsel submitted that TMP (Annex.5) remains a part and parcel of paragraph 18(1) as inserted by the Amendment Scheme of 2005 and hence is statutory in character; and any transfer made in violation thereof suffers from the vice of violation of mandatory statutory provision and cannot be sustained. Learned counsel emphasized that as per TMP, 25% of the employees are to be transferred on seniority basis; and when the fact that the three persons named by the petitioner are senior to him amongst class III employees at Jodhpur has not been denied, obviously the transfer has been ordered in contravention of the very terms of the Transfer Policy. Learned counsel submitted that TMP being that of mandatory statutory rules, no transfer in its violation could be ordered and the petitioner’s transfer deserves to be quashed on this count alone. Learned counsel further submitted that the order as issued by the Regional Manager remains wholly unauthorised, he being the officer who could not have been authorised to issue any such transfer order. Learned counsel submitted that 16 under the TMP when there has been a delegation of powers to the General Manager (Personnel), he could not have delegated further; and sub-delegation as made by him under clause 10 of the Administrative Instructions remains illegal; and clause 7 in TMP to the extent it permits such sub- delegation remains invalid, being contrary to the provision as contained in paragraph 18 of the Scheme. Learned counsel yet further submitted that in any case the Regional Manager has never been authorised to issue any such transfer order; and even if the Administrative Instructions be held valid, only the Chief Regional Manager has been authorised thereunder to issue the transfer orders like the present one; and, therefore, according to the learned counsel, the impugned order remains unauthorised nevertheless. Per contra, learned counsel for the respondents submitted that the scope of interference in transfer matters remains narrow and limited only in the cases where mandatory statutory rule is said to be violated or if there be a case of mala fide. No case of mala fide has been alleged and so far statutory provisions are concerned, according to the learned counsel for the respondents, only Section 17A of the General Insurance Business (Nationalisation) Act, 1972 [‘the Act of 1972’] and the Amendment Scheme of 2005 issued thereunder are of statutory character and rest all has been left 17 by the legislature to be worked out by the Company and the authorities concerned to determine the manner in which the transfer is to be effected; and, learned counsel contended, there being no violation of any of the relevant statutory provisions, the challenge to the transfer order remains fundamentally baseless. Learned counsel for the respondents submitted that the Transfer Policy (Annex.5) is essentially an administrative order and not statutory in character and by the said Transfer Policy none of the legal rights of the petitioner are affected, transfer being an incident of service; and contended that the petitioner has remained posted at Jodhpur ever since his appointment and being the person with longest stay, has rightly been ordered to be transferred. Learned counsel further submitted that the arguments regarding the designation of the authority issuing the transfer order remains baseless because in the designation of Class-I officer of the respondent Company, the person belonging to the cadre of Chief Manager, when posted at Head Office, is designated as ‘Chief Manager’; and when posted at Regional Officer, is known as Chief Regional Manager but when posted at Regional Office other than incharge, he is designated as ‘Regional Manager’; and essentially it is the same authority whom the Administrative Instructions refer that has issued the 18 impugned transfer order. Learned counsel for the respondent further endeavored to draw support from the scheme of Article 166 of the Constitution of India to submit that the argument regarding want of authority with the Regional Manager to issue transfer orders is not correct. Learned counsel also pointed out from the Administrative Instructions (Annex.6) and so also further Instructions (Annex. R/4) that the exercise of transfer has been carried