S. P. Srivastava. J. - (1.) -Undaunted by his failure in two successive writ petitions filed by the respondent, who is a Trade Unionist and is the Regional Secretary of Region II Meerut Module of the Delhi Circle of the State Bank of India and is also member of Delhi Circle committee of the State Bank of India, invoking the writ jurisdiction of this court for quashing the order transferring him from the post of Clerk/Cashier in the Railway Road, Bulandshahr Branch of State Bank of India to Kairana (Muzaffarnagar) Branch in the same capacity, the said respondent filed a third writ petition which has been allowed by a learned Single Judge of this Court. Feeling aggrieved the appellants who are the employers have come up in this Special Appeal seeking reversal of the judgment and order dated 6- 1-92 passed by the learned Single Judge.
(2.) WE have heard Sri S. N. Verma, Senior Advocate, for the appellants and Sri Yatindra Singh, advocate for the respondent. The fact giving rise to the present special appeal lie in a very narrow compass. While the respondent Sri Pradeep Goel was holding the post of clerk/Cashier at the Railway Road, Bulandshahr Branch of the State Bank of India, an order was passed by the Regional Manager appellant no. 1 on 4-3-91 transferring him to Kairana (Muzaffarnagar) Branch in the same capacity. In pursuance of the aforesaid order the Branch Manager relieved Sri Pradeep Goel, the respondent from his post to join his new posting at the Kairana (Muzaffarnagar) Branch vide the order dated 5-3-91. The respondent Pradeep Goel challenged the transfer order by means of Civil Misc. Writ Petition no. 8572/91 in this Court. This court issued notice to the respondent in the said writ petition and the affidavits were exchanged between the parties. However, when the aforesaid writ petition was taken up for hearing the respondent Pradeep Goel, who was the petitioner in that case, prayed that the petition be dismissed as withdrawn. Accordingly, this Court passed an order to the following effect dismissing the writ petition :- "Writ petition is dismissed as withdrawn as prayed by the petitioner. Interim order dated 26-3-91 is vacated." Pradeep Goel, the respondent, thereafter filed a second writ petition challenging the order of transfer in question. This writ petition was presented on 10-5-91 and was anally deposed of by an order dated 14-5-91 where under the writ petition was dismissed leaving the respondent free to make a representation to the higher authorities requesting that the transfer being contrary to the Circular or policy of the Government, the matter may be reconsidered. This Court further directed that in case such a representation was made then it will be decided by the competent authority within two weeks from the date of the receipt of the representation. It appears that the respondent submitted a representation on 18-5-91 which was rejected by the competent authority on 7-6-91. The respondent thereafter filed the present third writ petition seeking the quashing of the transfer order in question as well as the order dismissing his representation.
(3.) THE learned counsel for the appellant has in support of this appeal, urged that the third writ petition filed by the respondent being in respect of the same subject matter regarding which the earlier two writ petitions had been filed, was not maintainable and consequently there was no justification for issuing any writ of certiorari quashing the impugned order of transfer as done by the learned Single Judge. It has further been asserted that in the circumstances of the case, the principles of constructive resjudicata were clearly attracted and the decision in the second writ petition barred the granting of that relief to the respondent which had been declined by this Court as was apparent from the perusal of the judgment and order dated 14-6-91. Apart from the above submissions, it has also been urged that the impugned order of transfer had been passed on account of administrative exigencies and was not penal in nature. What has been asserted is that the order of transfer in question does not amount to inflicting punishment for any misconduct. It has further been urged that the Government order dated 15-2-88 and the order dated 22-10-90 does not have the effect of a rule and are merely in the nature of administrative instructions. THEy do not have the force of any statutory rule of a mandatory nature and in any case, even under the aforesaid orders a wide discretion had been left with the employer to pass an order of transfer of an employee from one place to another and there was no such infirmity in the exercise of this discretion which could warrant an interference by this court in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. The learned counsel for the respondent, while supporting the judgment impugned in this special appeal, has urged that in view of the nature of the order dated 14-5-91 passed by this Court in writ petition no. 16820/91 there could be no manner of doubt about the maintainability of the third writ petition inasmuch an the order dismissing the representation dated 18-5-91 had the effect of furnishing a fresh cause of action and if the order dated 7-6-1991 passed ore the representation of the petitioner could be quashed in that event that relief claimed in the representation i.e. annulment of the order of transfer would also be granted by this Court irrespective of the fact that it formed the subject matter of the two writ petitions filed earlier. It has been urged that in the circumstances of the case the question of res judicata does not arise as nothing can be deemed to have been decided in the earlier two writ petitions and the matter in controversy was left at large to be decided by the competent authority. It has further been urged that the impugned order of transfer was punitive in nature and had been passed without affording any opportunity of being heard. It has been further urged that an administrative exigency cannot be made a clerk for awarding punishment. It has further been asserted that the appellants were bound to abide by the directions contained in the orders dated 15-2-88 and 22-10-90 and consequently the impugned order of transfer having been passed in violation thereof has been rightly quashed and the order passed by the learned Single Judge does not call for any interference.;