IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF DECEMBER 2017 BEFORE THE HON’BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN WRIT PETITION NO. 47133 OF 2017 (S-TR) BETWEEN:
ALTAF AHMAD @ ALTAF A. MOHARKAN S/O. LATE GHULAM HASSAN MOHARKAN, AGED ABOUT 57 YEARS, EXECUTIVE MANAGER, THE JAMMU & KASHMIR BANK LTD., EMPLOYEE CODE: 6297, ZONAL OFFICE SOUTH, PRESTIGE TERRACE, UNION STREET, SHIVAJINAGAR, BENGALURU-560 001.
(BY SRI MOHAMMED FAROOQ, ADV.) ... PETITIONER AND:
1. JAMMU & KASHMIR BANK LIMITED REPRESENTED BY THE CHAIRMAN & CEO, THE JAMMU & KASHMIR BANK LTD., CORPORATE HEAD QUARTERS, M. A. ROAD, SRINAGAR-190 001, KASHMIR.
2. THE VICE-PRESIDENT HUMAN RESOURCES DEVELOPMENT DIVISION (HRDD), THE JAMMU & KASHMIR BANK LTD., CORPORATE HEAD QUARTERS, M. A. ROAD, SRINAGAR-190 001, KASHMIR.
3. THE VICE-PRESIDENT BUSINESS DEVELOPMENT, THE JAMMU & KASHMIR BANK LTD., ZONAL OFFICE SOUTH, PRESTIGE TERRACES, UNION STREET, SHIVAJINAGAR, BENGALURU-560 001.
4. THE VICE-PRESIDENT IAPM DEPARTMENT, THE JAMMU & KASHMIR BANK LTD., ZONAL OFFICE SOUTH, PRESTIGE TERRACES, UNION STREET, SHIVAJINAGAR, BENGALURU-560 001.
5. THE EXECUTIVE HUMAN RESOURCE DEVELOPMENT DIVISION, THE JAMMU & KASHMIR BANK LTD., CORPORATE HEAD QUARTERS, M. A. ROAD, SRINAGAR-190 001, KASHMIR.
... RESPONDENTS (BY SRI JAYAKUMAR S. PATIL, SENIOR ADVOCATE FOR SRI R. SHIALESH KUMAR, ADV. FOR R-1 AND R-5) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD.5.10.2017 ISSUED BY THE VICE-PRESIDENT AND EXECUTIVE, HRDD, J AND K BANK, CORPORATION HEADQUARTERS, SRINAGAR I.E., 2ND AND 5TH RESPONDENT VIDE ANNEX-A.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R With the consent of the learned counsel for the parties, the case is taken up for final hearing.
2. Aggrieved by the transfer order dated 05-10-2017, whereby the petitioner is being transferred from Bengaluru to Srinagar, the petitioner has approached this Court.
3. Briefly the facts of the case are that in 1983 the petitioner joined the Jammu and Kashmir Bank Ltd., the respondent No.1, as a cashier cum clerk. Having worked at several branches and offices, he was eventually promoted to the post of Senior Executive. In June 2011, while the petitioner was working as a Branch Manager at Ichgam, Budgam in Jammu and Kashmir, he was promoted to the post of Senior Executive. Subsequently he was transferred to the Zonal Office South, at Bengaluru. In February 2015, the petitioner was promoted as Executive Manager and continued his posting at the Zonal Office South at Bengaluru. In 2017, a new department was created in the Bank, known as Impared Assets Portfolio Management Department (‘IAPM department’ for short). By order dated 09-02-2017, the petitioner was posted as the Executive Manager Incharge of the said department. However, just eight months thereafter, by order dated 05-10-2017, the petitioner has been transferred, as mentioned hereinabove, from Bengaluru to Srinagar. Hence this petition before this Court.
4. Mr. Mohammed Farooq, the learned counsel for the petitioner, has raised the following contentions before this Court:-
Firstly, relying on Circular No.45 dated 24-04-2017, the learned counsel pleads that according to the said circular, the tenure of posting at a particular place is three years. Since the petitioner was posted on the post of Executive Manager Incharge of IAPM department on 09-02-2017, he cannot be transferred within the period of three years. Despite the tenure specified by Circular No. 45, the petitioner is being transferred within a period of eight months. Therefore, the impugned transfer order is in violation of the transfer policy of the Bank.
Secondly, while at Bengaluru, the petitioner is occupying an official residence given by the Bank. While at Bengaluru, the petitioner has also bought a house, however, as the house is incomplete, the petitioner is not in a position to move into the said house. Despite the inability of the petitioner to move into his own personal residence, the Bank has been pressurizing him to vacate the official quarters assigned to him. Thus, a tussle has started between the Bank and the petitioner. Since the petitioner is refusing to vacate his official quarters while he is posted at Bengaluru, he is being purposefully and intentionally transferred from Bengaluru to Srinagar. Thus the impugned order is affected by a malafide intention. According to the petitioner, it is the respondent No.3, the Vice-President, who is entertaining malafide intention against him. Therefore, the petitioner is being transferred to Srinagar at the instigation of and at the behest of the Vice-President, the respondent No.3. Therefore, the impugned order deserves to be set aside by this Court.
5. On the other hand, Mr. Jayakumar S. Patil, the learned Senior Counsel for the respondents, has pleaded that Circular No. 45 is merely a guideline. It is not mandatory, but discretionary in nature. Therefore, the hands and feet of the Bank could not be tied. The Bank cannot be deprived of its power to transfer its employee as and when required for administrative exigencies. Since the Bank happen to be the Bank of Jammu and Kashmir, the Bank is well within its power to transfer its employee from Bengaluru to Srinagar, the headquarters of the Bank.
Secondly, despite the fact that the learned counsel for the petitioner has raised pleas with regard to the malafide intention of the respondent No.3, the respondent No.3 has not even been arrayed as a respondent in his personal capacity. Moreover, there is no evidence produced by the petitioner to show that there is a correlation between the transfer order and the insistence by the Bank that he should vacate the official quarters. Thus, a story has been cooked up by the petitioner before this Court, which has no evidentiary basis.
6. Heard the learned counsel for the parties, and perused the impugned order, as well as the other documents produced by the petitioner and the respondent.
7. In catena of cases, the Hon'ble Supreme Court has opined that a transfer policy is merely directory in nature, and not a mandatory one. Sufficient freedom at the joints has to be given to an employer to transfer and post its employees in the interest of administrative exigencies or in the interest of public at large. Therefore, the Circular No. 45 is merely a guideline, which is directory in nature. Hence the first argument raised by the learned counsel for the petitioner that the petitioner cannot be disturbed for three years from the date of his posting on 09-02-2017, is clearly untenable and unacceptable.
8. Although the learned counsel for the petitioner has stressed on the point of malafide entertained by the respondent No.3, suffice it to say that the petitioner has not even impleaded the Vice-President in his personal capacity, and has not leveled specific allegations of malafide against the respondent No.3. It is easy to allege malafide intention, but difficult to prove it. Hence, the plea is devoid of any evidentiary basis. Thus, it is unsustainable.
9. Moreover, it is too far fetched an argument that a person of petitioner’s seniority and experience, is being transferred over a trivial issue of vacating the official residence. Therefore, this argument raised by the learned counsel for the petitioner, is clearly unacceptable.
For the reasons stated above, this Court does not find any merit in the present writ petition. It is, hereby, dismissed. No order as to costs.
Sd/- Judge RD