ORDER
R.V. Raveenran, J.
1. The petitioners are Junior Management Scale-I Officers in Allahabad Bank. They were working in Subhashnagar Branch, Bangalore and Palya Branch, Hassan District. The places where petitioners were working, i.e., State of Karnataka fall within the Hyderabad Region. By letters dated September 25, 1999 [Annexures A and B], petitioners were transferred under SWAP Scheme, to Ahmedabad Region and they have been informed that they will stand automatically relieved as at the close of Office hours on October 16, 1999. They were directed to report at Ahmedabad Regional Office for further posting orders after availing the usual joining time. Petitioners are aggrieved by the said transfers.
2. The petitioners do not dispute the right of the Bank Management to transfer them any where in India. Nor do they dispute that transfer is an incidence of Service. Petitioners do not also impute any mala fides to the Management in transferring them, but they contend that the transfer is arbitrary for three reasons. Firstly, it is contended that their transfers violate the transfer policy of the Bank. Secondly, it is contended that they will be put to hardship as the transfer is during middle of the academic year. Thirdly, it is contended that the transfers on SWAP basis is arbitrary and irrational and punitive in nature.
3. The respondents have contended that as per the guidelines contained in Circular No. 5760 dated August 20, 1998, SWAP transfers mean transfer of officers by exchange of persons working outside parent zone and persons working in the parent zone in order to provide opportunity to those who are working continuously in other regions/zones and who face personal hardship, to work in their parent zone. Normally, persons working longest in the parent zone will have to move first to outside the parent region/zone for the SWAP exercise transfers.
4. There is nothing arbitrary or irregular in regard to the policy as such. If officers who hail from a particular region/zone are posted outside the region/zone, and if they have been serving outside their parent region/zone for a long time, naturally they want to come back to their parent region/zone. The Bank has formulated ‘SWAP’ policy whereby persons who have been serving outside parent region/zone for a considerable time come back to the parent region/zone and persons serving long in the parent region/zone and persons serving long in the parent region/zone go out of the parent zone/region. The transfer on ‘SWAP’ basis is a rational policy, beneficial to employees. It enables officers who have been working outside their parent regions for long period to come to their parent regions. But for such a policy, persons who are working outside the parent region may never at all come back to their parent region, during their service. Further, it is brought out that the ‘SWAP’ policy has been formulated in consultation with the Officers Association [vide Annexures R1 and R2].
5. The Bank has stated that the petitioners have worked for a long period in their parent region. It is stated that petitioner No. 1 has worked for 7 years 6 months and petitioner No. 2 has worked for 12 years in the parent region (Hyderabad Region). The petitioners are being transferred from the Hyderabad Region (parent region) to Ahmedabad Region so that persons belonging to Hyderabad Region for more than 6 to 10 years continuously can be transferred to the parent region i. e., Hyderabad Region. It is also stated that in August/September 1999 about 145 officers in Junior Management Grade Scale-I have been subjected for SWAP transfers which includes 27 officers who were transferred from Hyderabad Region to other zones/region and an equal number of officers were/are transferred from other zones to Hyderabad region; and petitioners 1 and 2 are among 27 officers who have been transferred from Hyderabad Region. These facts will show that there is nothing irregular or arbitrary or discriminatory or punitive in the transfers of petitioners, nor is it opposed or violative of any transfer policy of the Bank.
6. The petitioners have attempted to list certain defects in the transfers made by the Bank. The relevant portion of the Writ Petition is extracted below:
“….. For repatriation on ‘SWAP’ basis, the length of service of an officer outside the zone should be the guiding factor, and officers who have served for lesser period outside the zone would move-out first. None of these laid down guidelines which are objective in nature has been kept in mind in effecting the impugned transfers which are violative of the laid-down guidelines, there being no proper planning as to transfers, mitigation of hardship etc. Zone-wise/region wise vacancies are to be identified as on the first April of the year, before effecting transfers. No such identification has ever been made in effecting the transfer, particularly from Karnataka which is a deficit State where only 5 officers in scale-I are outside the Hyderabad region. Five clear vacancies are available in Karnataka itself, and 3 repatriable officers are also available for being transferred. Officers in scale-I, though have been in the region, in the last two promotion process from scale-I to scale-II, 32 vacancies have occurred, and most of the vacancies are remaining vacant.”
Reliance is placed on para 3(viii) of the Transfer Policy Circular dated August 20, 1998 which is extracted below:
“Such officers who are transferred outside their parent Region/Zone as the case may be will be brought back to their respective parent Region or Zone, after a period of 2(two) years service in case of Difficult/Hardship centres and 3 (three) years service in other cases as far as possible and practicable.
Repatriation of at least one third of eligible officers may be considered every year by way of Recruitment, Promotions, Voluntary request for posting in deficit centre, and on ‘SWAP’. For repatriation on SWAP basis the length of service of an officer outside the zone will be the guiding factor. Officers who have served for lesser period outside the zone will move first.”
This Court is not sitting in appeal over the transfer. Nor will it examine in minute detail and in mathematical precision, the correctness of the transfers with reference to the transfer policy. For each alleged violation or omission, there may be a justifiable cause. For example, petitioners contend that the Repatriation of atleast one third of eligible officers, the Bank ought to have resorted to recruitment/ promotion/voluntary requests. But the Bank points out that there is a ban on recruitment. There may not be adequate requests for voluntary transfers. There may not be sufficient eligible candidates for promotion. Similarly, there may be several reasons and exigencies which may make it impractical to act strictly in accordance with the guidelines. That is why transfers are governed by guidelines and not Rules.
7. The petitioners contend that effecting transfers in September during the middle of term will cause great hardship to the family members of the petitioners. Reliance is placed on the decision of the Supreme Court in Director of School Education, Madras v. Karuppa Thevan, 1995 (1) JT SC 21, wherein the Supreme Court has observed as follows:
“The Tribunal has erred in law in holding that the respondent employee ought to have been heard before transfer. No law requires an employee to be heard before his transfer when the authorities make the transfer for the exigencies of administration. However, the learned counsel for the respondent contended that in view of the fact that respondent’s children are studying in school the transfer should not have been effected during mid academic term. Although there is no such rule, we are of the view that in effecting transfer, the fact that the children of an employee are studying should be given due weight, if the exigencies of the service are not urgent. The learned counsel appearing for the appellant was unable to point out that the employee could not have been accommodated till the end of the current academic year. We, therefore, while setting aside the impugned order of the Tribunal direct that the appellant should not effect the transfer till the end of current academic year.”
8. It is no doubt true that the transfer during mid-term will cause some inconvenience to those who have school going children. What is middle of a term is itself a matter of controversy. While for some students, the academic year begins in June, in regard to Professional Colleges in Karnataka, the academic year starts only in September/ October of a year. Further, with the introduction of Semester or Trimester system, the term academic year has lost much of its significance. Whether the term ‘academic year’ is June to May requires to be reconsidered with reference, to facts in each case. Having regard to the age of the petitioners (49 and 52), it can safely be inferred that they are persons who are likely to have college going rather than school going children. Only for school going children, it can be said with some certainty that the academic year is from June. Be that as it may. The respondents have pointed out that to avoid hardship, the Bank will permit the petitioners to retain their official residential quarters at Bangalore and Palya for a period of six months, in addition to providing accommodation at the places of transfer. This, to a large extent, will reduce the hardship.
9. Transfer is an incidence of service. Hardship is an incidence of transfer. Complete relief from hardship is impossible in transfers. As reasonable relief against hardship is provided and as the transfer of petitioners is a part of a large scale general transfer of 145 officers on ‘SWAP’ basis, hardship cannot be a ground for interfering with the transfer. In the decision relied on by the petitioners, (extracted above), the Supreme Court has made it clear that the hardship cannot be a ground to avoid transfers. It is now well settled that the transfers cannot be interfered with merely on the ground of hardship or merely on the ground of violation of guidelines, unless the person transferred is able to establish mala fides or violation of statutory Rules [see Union of India v. S.L. Abbas, (1993-II-LLJ-626) (SC) and Rajendra Roy v. Union of India, ].
10. In Indian Telephone Industries v. Prof. P.N. Shetty, [91 FJR 585], a Division Bench of this Court has held as follows:
“The transfer of an employee in an establishment is generally related to efficiency and optimum utilisation of personnel, employer has a right to transfer an employee and is an exclusive prerogative of the management. Employment being primarily a creature of contract itself, terms are modified only to the extent they are superseded by law, contract or award. The rights and obligations of the employer and employee in matters of transfer would, therefore, be governed by this position in being clearly assumed that unless proof to the contrary and unless the transfer changes the identity of employment or prejudices the employment conditions, the employer has always a right, to transfer his employee. On proof of the existence of mala fides, the order of transfer can be challenged. The management is in a position to know where the workman is to be employed or how best he could be employed. The employers have a right to distribute work as they think best and transfer is an incident. The management is the best judge how to distribute manpower and whether a transfer can be avoided or not. Courts do not ordinarily interfere in such matters. As order of transfer can be challenged on the following grounds viz.,
(i) transfer is in- violation of conditions of service or contract;
(ii) it is actuated by mala fides or actuated by some other ulterior motive not connected with the business interest of the management; and
(iii) transfer effects a change in the conditions of service by subjecting the employee to more onerous conditions.
Subject to what is stated above an employer has an inherent right to transfer an employee.
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Once it is accepted that transfer of an employee is in the discretion of the management, except when the transfer is stated to be in violation of the rules or conditions of service or it is a result of ulterior motive not connected with the business/interest of the management or alters the conditions of service to the disadvantage of the employee, the transfer cannot be faulted with…..”
11. The learned Counsel for the petitioners states that petitioners had a bona fide doubt in regard to the SWAP policy and therefore they could not report at Ahmedabad Region within the permitted time and seeks extension of time for reporting by three weeks. The learned Counsel appearing for the respondents has no objection for extending the reporting time accordingly.
12. In view of the above, there is no merit in these petitions and accordingly they are rejected. It is also made clear that the rejection of these petitions will not come in the way of the petitioners giving a representation as contemplated in the orders of transfer or the Bank considering such representation and giving relief to the petitioners, if it is warranted.