Sujith S Kumar v. Union Of India
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14.06.2024 CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY and W.M.P.Nos.26544, 26545 & 26546 of 2023 Sujith S.Kumar ..
Petitioner Vs.
1.Union of India By its Secretary Ministry of Communications Electronics Niketan, 6, CGO Complex Lodhi Road, New Delhi - 110 003.
2.India Post Payments Bank Limited Rep.by Chief HRO Post Office, Speed Post Center Building Market Road, New Delhi - 110 001.
3.India Post Payments Bank Limited By its Asst. General Manager Circle Head, Anna Road, Chennai Tamilnadu Circle - 600 002.
4.India Post Payments Bank Limited By its Asst. General Manager
Circle Head, Makubhai, Sheth Marg Ahmedabad, Gujarat Circle - 380001.
.. Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India seeking a Writ of Certiorarified Mandamus, calling for the records of the 2nd respondent in transfer order dated 02.08.2023 in Ref.No.IPPB/HR/202324/38 in so far it relates to the petitioner and the consequential relieving order issued by the 3rd respondent dated 09.08.2023 in No.IPPBTN/HR/TRF/2023-24/CR/100257 and to quash the same and consequently direct the respondents to consider the case of the petitioner in accordance with DoPT OM.No.28034/9/2009 dated 30.09.2009 for posting husband and wife in the same 'station' or same 'State'. For the Petitioner : Mr.J.Srinivasa Mohan For the Respondents : Mr.Mr.A.Kumaraguru SCGSC for R1 Mr.A.E.Ravichandran for RR2 to 4
ORDER
This Writ Petition is filed challenging the order of transfer dated 02.08.2023 and the consequential relieving order dated 09.08.2023 and for a consequential prayer that the respondents be directed to consider the case of
the petitioner in accordance with D.O.P.T.No.28034/9/2009 dated 30.09.2009 for posting the petitioner along with his spouse in the same station or in the same State and for other orders.
2. Mr.Srinivasa Mohan, learned counsel appearing on behalf of the petitioner would submit that after filing of the present Writ Petition, the respondents themselves considered the request of the petitioner especially considering the extraordinary circumstances, where the spouse of the petitioner is working as TGT teacher under the Union Territory of Puducherry and the fact that the couple were undergoing protracted treatment to beget a child. The respondents permitted the petitioner to work in the present station up to March 2023.
3. It is now brought to the notice of this Court by the learned counsel for the respondents that the relieving order was passed on 30.03.2024 and from 01.04.2024, the petitioner's service was deemed to be in the transferred place and his salary itself credited from the said unit.
4. It is at this stage, when the matter came up for final hearing, the learned counsel appearing for the petitioner would draw the attention of this Court to the fact that the respective guidelines and policies of the Government of India will apply to the employees of the 2nd respondent - Bank. According to him, as per the D.O.P.T.No.28034/9/2009 dated 30.09.2009, whenever a spouse is working a State Government service, as far as possible, the employee can be accommodated in the same State. Therefore, the policy itself is in favour of reconsideration of the transfer.
5. The second submission on behalf of the learned counsel for the petitioner is of medical grounds. The petitioner and his spouse were undergoing treatment under the Gynaecologist and now during the extended period, only on account of such treatment, his spouse is now pregnant and at this stage, it is extremely essential for the petitioner to be with her. Considering the special case of pregnancy upon being protracted treatment, it is his third contention that in a similar case, where the working of a
spouse has been brought to the notice of the respondents and they have canceled the transfer and permitted the person to be retained in the same place.
6. Further, the learned counsel for the petitioner submits that it is not that the petitioner asking for same station, but the spouse of the petitioner is working in Karaikal, Union Territory of Puducherry, whereas, now the petitioner is transferred to Gujarat. Therefore, the petitioner has made a detailed representation on 27.03.2024.
7. The learned counsel appearing on behalf of the respondents 2 to 4 would submit that the matter of place of posting and transfer are all within the domain of the respondent - Bank and the factors which are pointed out by the learned counsel for the petitioner are nothing but policy conditions, which can be taken into account while it will not give any concomitant enforcible right.
8. The learned counsel for the petitioner would rely upon the Judgment of the Hon'ble Supreme Court of India in SK Nausad Rahaman & Ors. Vs. Union of India and Ors.1 more specifically paragraph No.51, which reads as follows:- "51.The State in the present case has been guided by two objectives: first, the potential for abuse of ICTs and second, the distortion which is caused in service leading to plethora of litigation. The State while formulating a policy for its own employees has to give due consideration to the importance of protecting family life as an element of the dignity of the person and a postulate of privacy. How a particular policy should be modulated to take into account the necessities of maintaining family life may be left at the threshold to be determined by the State. In crafting its policy however the State cannot be heard to say that it will be oblivious to basic constitutional values, including the preservation of family life which is an incident of Article 21."
9. The learned counsel would contend that it is not merely an enforcement of policy guidelines, but would fall within the realm of the family life of the petitioner, touching upon Article 21 of the Constitution of India.
2022 LiveLaw (SC) 266
10. I have considered the rival submissions made on either side and perused the material records of the case.
11. As rightly pointed out by the learned counsel for the petitioner, though matters of transfer and posting are within the domain of the employer, now considering the subsequent developments after passing the impugned order that the respondents themselves considered the case of the petitioner and extended his stay in the present station until March 2024 and thereafter only relieving order has been passed, it is for the respondents to consider all the submissions made on behalf of the petitioner. The petitioner has made a detailed representation on 27.03.2024. Therefore, without adjudicating any of the issues discussed above, this Writ Petition is disposed of on the following terms:- (i) the respondents shall consider the representation of the petitioner dated 27.03.2024 on its own merits according to their policy guidelines and pass orders thereon within a period of four weeks from the date of receipt of
a copy of this order;
(ii) the petitioner can also make additional representation within a period of two days from the date of receipt of a copy of this order and in case, additional representation is made, the same shall also be taken into consideration;
(iii) No costs. Consequently connected miscellaneous petitions are closed.
14.06.2024 : No Jer To 1.The Secretary Union of India Ministry of Communications Electronics Niketan, 6, CGO Complex Lodhi Road, New Delhi - 110 003.
2.The Chief HRO India Post Payments Bank Limited Post Office, Speed Post Center Building Market Road, New Delhi - 110 001.
3.The Asst. General Manager India Post Payments Bank Limited
Circle Head, Anna Road, Chennai Tamilnadu Circle - 600 002.
D.BHARATHA CHAKRAVARTHY, J.
Jer 4.The General Manager India Post Payments Bank Limited Circle Head, Makubhai, Sheth Marg Ahmedabad, Gujarat Circle - 380001.
14.06.2024