Hon'ble Supreme Court in the case of Union of India vs Susaka Private Limited and others and judgement of division

"1. Heard learned counsel for the petitioner, and Shri Anurag Srivastava, learned counsel appearing for the respondent-Bank.

2. At the very outset, learned counsel for the petitioner states that he does not intend to press the challenge raised to the notice dated 02.01.2024 as well as order dated 21.05.2024, copies of which are Annexure-4 and 5 to the petition, and prays that the writ petition may be dismissed with regard to the aforesaid prayers.

3. Accordingly, the writ petition is dismissed so far as it pertains to raising a challenge to the notice dated 02.01.2024 as well as order dated 21.05.2024.

4. Under challenge is the order dated 02.08.2023, a copy of which is Annexure-1 to the petition, whereby the petitioner has been transferred from Lucknow to Bareilly as Assistant General Manager.

5. Also under challenge is the order dated 07.05.2024, a copy of which is Annexure-2 to the petition, whereby the petitioner has been transferred within Bareilly, which is an intra circle transfer as well as a report of the State Bank of India, a copy of which is Annxure-3 to the petition, which has been submitted before the Chief Commissioner for Persons with Disabilities, New Delhi.

6. Bereft of unnecessary details the facts of the case are that the petitioner, who was working as Chief Manager when he has been given promotion as Assistant General Manager vide order dated 20.04.2023. At the time of his promotion, the petitioner had given an undertaking, which is a part of Annexure-24 to the petition (Page 119), wherein he had specifically indicated that he has no personal family issues/challenges which may create problems for him in case of his immediate transfer anywhere as per the Bank requirement.

7. After his promotion, the petitioner continued to work as Assistant General Manager when by means of the order impugned dated 02.08.2023, he had been transferred from Lucknow to Bareilly.

8. Initially, the petitioner had raised a challenge to the transfer order before the Commissioner for Persons with Disabilities under the provisions of Rights of Persons with Disability Act, 2016.

9. The notice had been issued to the Bank to which the Bank had responded vide its report, a copy of which is Annexure-3 to the petition, whereby it had indicated its difficulty in not accommodating the petitioner at Lucknow.

10. Contention of learned counsel for the petitioner is that the petitioner having worked for a period of 15 years at Lucknow yet considering that son of the petitioner is suffering from Moderate Mental Retardation and Autism which has been certified as 80% permanent physical disability as per the certificate issued by the Chief Medical Officer dated 06.02.2023, a copy of which is Annexure-7 to the petition.

11. On the basis of the same, a disability card has also been issued for the son of the petitioner consequently keeping in view the circulars that have been issued both by the Government of India as well as the Bank itself which provide that such person should not normally be transferred even on promotion if a vacancy exists in same branch/office/town/city and consequently the respondents have patently erred in passing the order impugned whereby despite existence of the vacancies as specifically stated in para 65 of the writ petition, the petitioner has still been transferred.

12. Learned counsel for the petitioner fairly states that the circulars that had been issued by the Central Government including the circulars that had been issued by the Bank, copies of which are Annexures-9 to 16 to the writ petition, use the word 'normally' consequently the respondents in case they are of the view that the petitioner has to be mandatorily transferred from Lucknow to some other city despite existence of the vacancies, they would have to indicate the extraordinary circumstance which prevailed in transfer of the petitioner from Lucknow to Bareilly on promotion despite existence of the vacancies.

13. At this stage, learned counsel appearing for the respondents-Bank prays for and is granted 10 days' time to seek instructions or file a short counter affidavit indicating as to whether any vacancy was existing at Lucknow on the post of of Assistant General Manager from which the petitioner had been transferred in August, 2023 and if so the extraordinary circumstances, which prevailed on the respondents-bank while transferring the petitioner despite existence of the aforesaid circulars.

14. As the matter has been heard at length, list this case on 06.03.2025 at 2:15 P.M. for further hearing."

3. Today Shri Anurag Srivastava, learned counsel for the respondents states on the basis of instructions given by Chief Manager (SS), Lucknow dated 05.03.2025 that as regards the queries as were raised by this Court vide order dated

21.02.2025 namely (a) whether any vacancy was existing at Lucknow on the post of Assistant General Manager from which the petitioner was transferred in August, 2023 and if so (b) the extraordinary circumstances which prevailed on the respondent bank while transferring the petitioner, it is contended that various vacancies were existing at Lucknow at the time when the petitioner was transferred. So far as the extraordinary circumstances which have prevailed with the respondent bank for transferring the petitioner despite existence of the circulars issued by the bank, copies of which are annexures 9 to 16 to the writ petition, it is stated that as the petitioner had continued for a period of 15 years at Lucknow and the fact that at the time of his promotion he has given undertaking for being transferred anywhere those are the extraordinary circumstances which prevailed upon the respondents in transferring the petitioner.

4. Shri Srivastava has also placed reliance on the judgement of Hon'ble Supreme Court in the case of Union of India vs Susaka Private Limited and others and judgement of division bench of this Court in the case of Dharamveer Singh vs State Bank of India and another, passed in Writ A No. 6388 of 2023 decided on 28.08.2023 to contend that as the petitioner had accepted the said promotion and also given undertaking consequently he cannot be permitted to depart from that and the said undertaking would be binding on him.

5. Having heard learned counsel for the parties and having perused the record it emerges that the petitioner has raised challenge to the order dated 02.08.2023 by which the petitioner has been transferred from Lucknow to Bareilly as Assistant General Manager and order dated 07.05.2024 where the petitioner has been transferred within Bareilly. As already indicated above, the facts of the case have already been indicated which thus required this Court to put two specific queries to learned counsel for the respondents which have already been answered above.

6. The circulars issued by the central government including the circulars that had been issued by the bank, copies of which are annexures 9 to 16 to the writ petition, use the word "normally" for the purpose that a disabled person would not normally be transferred even on promotion when a vacancy exists in the same branch / office / town / city. The existence of vacancy at the time of his transfer is admitted by the respondents. The only extraordinary circumstance which has prevailed on the respondents, as has been submitted by Shri Srivastava, is the undertaking and continuance of the petitioner at Lucknow for a period of 15 years.

7. The aforesaid circulars have admittedly been issued for dealing with the situations arising on account of posting of an employee who have differently abled dependents. The said circulars clearly indicate that an employee even on promotion should be exempted from the exercise of being transferred on promotion except where extraordinary circumstances are prevalent.

8. As indicated above, the respondents have considered 15 years of continuance of the petitioner at Lucknow but once the respondents on their own accord have permitted the petitioner to continue at Lucknow which has been permitted considering the aforesaid circulars accordingly, the continuance of the petitioner at Lucknow cannot be considered as an "extraordinary circumstance" which could have prevailed on the respondents for transferring the petitioner from Lucknow to Bareilly.

9. So far as the judgement of Hon'ble Supreme Court in the case of Susaka Private Limited (supra) is concerned, suffice to state that the same pertains to an arbitration matter while the instant matter pertains to a service dispute in which the circulars clearly provide for an employee having differently abled dependents to be exempted from transfer except where extraordinary circumstances prevail. Thus the said judgement would be of no avail to the respondents.

10. So far as the judgement of this Court in the case of Dharamveer Singh (supra) is concerned a perusal of paragraph 5 of the said judgement would indicate that the petitioner therein had been transferred at an earlier stretch of time and subsequently he had obtained disability certificate which admittedly is not the case as fairly admitted by Shri Anurag Srivastva. Thus the said judgements would have not have any applicability on the facts of the case.

11. Keeping in view the aforesaid discussion, the writ petition is allowed. The orders impugned dated 02.08.2023 and

07.05.2024, copies of which are annexures 1 and 2 to the writ petition, are quashed.

12. Consequences to follow. Order Date :- 6.3.2025 J. K. Dinkar JESHU KUMAR DINKAR High Court of Judicature at Allahabad, Lucknow Bench

"1. Heard learned counsel for the petitioner, and Shri Anurag Srivastava, learned counsel appearing for the respondent-Bank.

2. At the very outset, learned counsel for the petitioner states that he does not intend to press the challenge raised to the notice dated 02.01.2024 as well as order dated 21.05.2024, copies of which are Annexure-4 and 5 to the petition, and prays that the writ petition may be dismissed with regard to the aforesaid prayers.

3. Accordingly, the writ petition is dismissed so far as it pertains to raising a challenge to the notice dated 02.01.2024 as well as order dated 21.05.2024.

4. Under challenge is the order dated 02.08.2023, a copy of which is Annexure-1 to the petition, whereby the petitioner has been transferred from Lucknow to Bareilly as Assistant General Manager.

5. Also under challenge is the order dated 07.05.2024, a copy of which is Annexure-2 to the petition, whereby the petitioner has been transferred within Bareilly, which is an intra circle transfer as well as a report of the State Bank of India, a copy of which is Annxure-3 to the petition, which has been submitted before the Chief Commissioner for Persons with Disabilities, New Delhi.

6. Bereft of unnecessary details the facts of the case are that the petitioner, who was working as Chief Manager when he has been given promotion as Assistant General Manager vide order dated 20.04.2023. At the time of his promotion, the petitioner had given an undertaking, which is a part of Annexure-24 to the petition (Page 119), wherein he had specifically indicated that he has no personal family issues/challenges which may create problems for him in case of his immediate transfer anywhere as per the Bank requirement.

7. After his promotion, the petitioner continued to work as Assistant General Manager when by means of the order impugned dated 02.08.2023, he had been transferred from Lucknow to Bareilly.

8. Initially, the petitioner had raised a challenge to the transfer order before the Commissioner for Persons with Disabilities under the provisions of Rights of Persons with Disability Act, 2016.

9. The notice had been issued to the Bank to which the Bank had responded vide its report, a copy of which is Annexure-3 to the petition, whereby it had indicated its difficulty in not accommodating the petitioner at Lucknow.

10. Contention of learned counsel for the petitioner is that the petitioner having worked for a period of 15 years at Lucknow yet considering that son of the petitioner is suffering from Moderate Mental Retardation and Autism which has been certified as 80% permanent physical disability as per the certificate issued by the Chief Medical Officer dated 06.02.2023, a copy of which is Annexure-7 to the petition.

11. On the basis of the same, a disability card has also been issued for the son of the petitioner consequently keeping in view the circulars that have been issued both by the Government of India as well as the Bank itself which provide that such person should not normally be transferred even on promotion if a vacancy exists in same branch/office/town/city and consequently the respondents have patently erred in passing the order impugned whereby despite existence of the vacancies as specifically stated in para 65 of the writ petition, the petitioner has still been transferred.

12. Learned counsel for the petitioner fairly states that the circulars that had been issued by the Central Government including the circulars that had been issued by the Bank, copies of which are Annexures-9 to 16 to the writ petition, use the word 'normally' consequently the respondents in case they are of the view that the petitioner has to be mandatorily transferred from Lucknow to some other city despite existence of the vacancies, they would have to indicate the extraordinary circumstance which prevailed in transfer of the petitioner from Lucknow to Bareilly on promotion despite existence of the vacancies.

13. At this stage, learned counsel appearing for the respondents-Bank prays for and is granted 10 days' time to seek instructions or file a short counter affidavit indicating as to whether any vacancy was existing at Lucknow on the post of of Assistant General Manager from which the petitioner had been transferred in August, 2023 and if so the extraordinary circumstances, which prevailed on the respondents-bank while transferring the petitioner despite existence of the aforesaid circulars.

14. As the matter has been heard at length, list this case on 06.03.2025 at 2:15 P.M. for further hearing."

3. Today Shri Anurag Srivastava, learned counsel for the respondents states on the basis of instructions given by Chief Manager (SS), Lucknow dated 05.03.2025 that as regards the queries as were raised by this Court vide order dated

21.02.2025 namely (a) whether any vacancy was existing at Lucknow on the post of Assistant General Manager from which the petitioner was transferred in August, 2023 and if so (b) the extraordinary circumstances which prevailed on the respondent bank while transferring the petitioner, it is contended that various vacancies were existing at Lucknow at the time when the petitioner was transferred. So far as the extraordinary circumstances which have prevailed with the respondent bank for transferring the petitioner despite existence of the circulars issued by the bank, copies of which are annexures 9 to 16 to the writ petition, it is stated that as the petitioner had continued for a period of 15 years at Lucknow and the fact that at the time of his promotion he has given undertaking for being transferred anywhere those are the extraordinary circumstances which prevailed upon the respondents in transferring the petitioner.

4. Shri Srivastava has also placed reliance on the judgement of Hon'ble Supreme Court in the case of Union of India vs Susaka Private Limited and others and judgement of division bench of this Court in the case of Dharamveer Singh vs State Bank of India and another, passed in Writ A No. 6388 of 2023 decided on 28.08.2023 to contend that as the petitioner had accepted the said promotion and also given undertaking consequently he cannot be permitted to depart from that and the said undertaking would be binding on him.

5. Having heard learned counsel for the parties and having perused the record it emerges that the petitioner has raised challenge to the order dated 02.08.2023 by which the petitioner has been transferred from Lucknow to Bareilly as Assistant General Manager and order dated 07.05.2024 where the petitioner has been transferred within Bareilly. As already indicated above, the facts of the case have already been indicated which thus required this Court to put two specific queries to learned counsel for the respondents which have already been answered above.

6. The circulars issued by the central government including the circulars that had been issued by the bank, copies of which are annexures 9 to 16 to the writ petition, use the word "normally" for the purpose that a disabled person would not normally be transferred even on promotion when a vacancy exists in the same branch / office / town / city. The existence of vacancy at the time of his transfer is admitted by the respondents. The only extraordinary circumstance which has prevailed on the respondents, as has been submitted by Shri Srivastava, is the undertaking and continuance of the petitioner at Lucknow for a period of 15 years.

7. The aforesaid circulars have admittedly been issued for dealing with the situations arising on account of posting of an employee who have differently abled dependents. The said circulars clearly indicate that an employee even on promotion should be exempted from the exercise of being transferred on promotion except where extraordinary circumstances are prevalent.

8. As indicated above, the respondents have considered 15 years of continuance of the petitioner at Lucknow but once the respondents on their own accord have permitted the petitioner to continue at Lucknow which has been permitted considering the aforesaid circulars accordingly, the continuance of the petitioner at Lucknow cannot be considered as an "extraordinary circumstance" which could have prevailed on the respondents for transferring the petitioner from Lucknow to Bareilly.

9. So far as the judgement of Hon'ble Supreme Court in the case of Susaka Private Limited (supra) is concerned, suffice to state that the same pertains to an arbitration matter while the instant matter pertains to a service dispute in which the circulars clearly provide for an employee having differently abled dependents to be exempted from transfer except where extraordinary circumstances prevail. Thus the said judgement would be of no avail to the respondents.

10. So far as the judgement of this Court in the case of Dharamveer Singh (supra) is concerned a perusal of paragraph 5 of the said judgement would indicate that the petitioner therein had been transferred at an earlier stretch of time and subsequently he had obtained disability certificate which admittedly is not the case as fairly admitted by Shri Anurag Srivastva. Thus the said judgements would have not have any applicability on the facts of the case.

11. Keeping in view the aforesaid discussion, the writ petition is allowed. The orders impugned dated 02.08.2023 and

07.05.2024, copies of which are annexures 1 and 2 to the writ petition, are quashed.

12. Consequences to follow. Order Date :- 6.3.2025 J. K. Dinkar JESHU KUMAR DINKAR High Court of Judicature at Allahabad, Lucknow Bench