A. K. SIKRI, J. ( 1 ) THE petitioner in this case is challenging his transfer from Delhi to Mumbai officeof respondent bank and seeks quashing of transfer order dated 20. 10. 1999 bywhich this transfer was effected. The transfer is challenged on twin grounds: (a) it ismala tide and (b) it is in contravention of his terms of appointment. The avermentsmade in the petition forming the basis of aforesaid challenge may besummarisedin the first instance. On 16. 9. 1992, respondent No. 1 bank applied to the Securitiesexchange Board of India (hereinafter referred to as the SEBI) for grant of registrationas a Merchant Banker under the provision of SEBI (Merchant Bank) Rules andregulations. 1992. In 1993 the respondent bank submitted curriculum vitae/bio dataof its various personnel working with the bank to the SEBI for approval of itsmerchant Banking Division. Vide its communication dated 1. 11. 1994, SEBI informedthe respondent bank, that although the bank was eligible for grant of certificate ofregistration as Category I Merchant. Banker, but subject to the condition that thebank, strengthened its manpower with minimum of two persons having adequatehardcore experience in Merchant Bank activities. By way of the said letter, SEBIfurther directed the bank to make the said recruitment within 30 days and thereafterfurnish particulars of its key personnel in order to obtain the necessary clearance,before taking up any assignment as a Merchant Banker. In 1995, pursuant to thedirections of the SEBI, the respondent bank advertised in the National Dailiesinviting applications for recruitment to the post of chief Manager Merchantbanking Division for their proposed Delhi/bombay offices. Apropos the saidadvertisement on 7. 4. 1995, the petitioner who is a qualified Law Graduate andmba, with vast experience in activities relating to Merchant Bank, applied for thesaid post at the Delhi office of the respondent bank. The petitioner alongwith oneshri K. A. Salaria were selected. On 7. 7. 1995, the petitioner was appointed as Chiefmanager in the Merchant Banking Division of the respondent bank at Delhi andwas directed to report for duty to the Deputy General Manager, J and K Bank Ltd. Delhi. On 16. 8. 1996 the petitioner accepted the terms of appointment for Delhi andaccordingly joined as Chief Manager, Merchant Banking Division of the respondentbank at Delhi. On 16. 8. 1996 the petitioner accepted the terms of appointment for Delhi andaccordingly joined as Chief Manager, Merchant Banking Division of the respondentbank at Delhi. Pursuant to his joining the Merchant Banking Department of thedivisional Office of the respondent bank in Delhi, the petitioner has been relentlesslyand arduously handling various merchant banking activities for the respondent bankwhich among others included several public issue, project appraisal, RBI and SEBIinspection for the years 1995 to 1998 accounting and reconciliation work, postpublic work with regard to various Stock Exchange etc. However as Mr. K. A. Salariawho was selected for Mumbai office did not join the respondent bank, Merchantbanking Division (MBD for short) at Mumbai was never incepted. ( 2 ) WHILE the petitioner was working in MBD of Delhi office, he was served withorder dated 1. 4. 1999 transferring him to Central Office of the respondent bank atsrinagar. It was transfer to non-MBD of the bank. Petitioner filed CW No-2578/99challenging this order of transfer on various grounds including on the ground thatpetitioner could not be transferred to non-MBD and as per terms of appointmentletter,. he could be posted only in Delhi and Mumbai. On 28. 4. 1999 while issuingshow cause notice in the said petition, this Court granted the stay of the operationof the transfer order dated 1. 4. 1999. As respondent did, not appear in this case, itwas proceeded ex-parte by order dated 9. 8. 1999 and the matter was listed forfinal arguments on 25. 1. 2000. However on 13. 10. 1999 application was filed byrespondent bank for setting aside ex-parte order dated 9. 8. 1999 on the plea thattransfer order dated 1. 4. 1999 had been withdrawn and that petitioner vide orderdated 4. 6. 1999 had been posted in the Delhi office of the bank in Karol Bagh. Petitioner s case is that he was never served with such order dated 4. 6. 1999 and hewas surprised to know this fact from the application dated 13. 10. 1999 filed by therespondent. However within a week from receiving the aforesaid application dated13. 10. 199, petitioner received another impugned order dated 20. 10. 1999 postingthe petitioner at area office Mumbai. Petitioner was served with relieving orderdated 8. 11. 1999 pursuant to theaforesaid order dated 20. 10. 1999 and he filedcm No. 13765/99 in CW No-2578/99 seeking stay of the operation of implementationof this order. On 7. 12. 10. 199, petitioner received another impugned order dated 20. 10. 1999 postingthe petitioner at area office Mumbai. Petitioner was served with relieving orderdated 8. 11. 1999 pursuant to theaforesaid order dated 20. 10. 1999 and he filedcm No. 13765/99 in CW No-2578/99 seeking stay of the operation of implementationof this order. On 7. 12. 1999, interim order was passed staying this transfer aswell. Thereafter respondent filed reply to this CM and petitioner also filed rejoinder. When the matter was heard again on 17. 2. 2000, the petitioner withdrew CWNo. 2578/99 as it was essentially filed challenging the order dated 1. 4. 1999 andimpugned order dated 20. 10. 1999 transferring the petitioner to Mumbai was adifferent cause of action. Permission was granted to the petitioner to file substantivewrit petition separately challenging the order dated 20. 10. 1999 and interim staygranted earlier staying operation of order dated 20. 10. 1999 was directed toremain in operation for a period two weeks. The petitioner accordingly filed thepresent petition challenging the impugned transfer order dated 20. 10. 1999. ( 3 ) THE impugned order is challenged by raising the following contentions: 1) The terms of appointment clearly lay down that the petitioner could betransferred to- the branehes/offices of the respondent bank only within thecities of Delhi/mumbai, provided the same is within the merchant Bankdivision. Hence the present transfer order which has been passed incontravention of his terms of appointment is therefore bad in law. Therespondent bank had, in fact, recruited the petitioner for Delhi. Thus thepetitioner was to be stationed only in Delhi. The said order dated 20. 10. 1999transferring the petitioner from the Merchant Banking Division of the bankin Delhi to its Area Office in Mumbai, which does not have a Merchantbanking Division is clearly outside the scope of his appointment. Thepetitioner was specifically appointed as Chief Manager, Merchantbanking Division pursuant to the directions of SEBI, and his services were,therefore meant only for its Merchant banking Division and not for itsordinary/general banking activities. The petitioner who has experience inmerchant Banking activities was recruited by the respondent bank, specificallyas the SEBI made the same mandatory for grant of registration to the bankas merchant Banker. Hence, his transfer/posting to an ordinary Bankingdivision of the bank is in violation of his terms of appointment and therefore,liable to be set aside. The petitioner who has experience inmerchant Banking activities was recruited by the respondent bank, specificallyas the SEBI made the same mandatory for grant of registration to the bankas merchant Banker. Hence, his transfer/posting to an ordinary Bankingdivision of the bank is in violation of his terms of appointment and therefore,liable to be set aside. In the absence of a Merchant Banking Division, inmumbai no suitable reasons have been given by the respondent bank oftransferring the petitioner and thereby changing the nature of the activities for which he had been specifically recruited. 2) The impugned order of transfer is malafide and an act of sheervindictiveness and move the penalise the petitioner because he hadapproached this Court on earlier occasion. The malafides are sought to befounded on the following averments: A) It is the intention of the respondent bank to somehow see thatpetitioner does not remain in Delhi and is transferred from Delhi. For this purpose, petitioner was transferred from MBD, Delhioffice, which is at Lajpat Nagar. When he challenged this order byfiling this writ petition, he was transferred to Karol Bagh another non-MBD office and this order was not even served upon the petitionerand he came to know of the same from application dated 13. 10. 1999filed in this Court. Within one week thereafter, the petitioner wastransferred to Mumbai office. B) The petitioner has been harassed continuously ever sincehe filed earlier writ petition inasmuch as he has not been paid hissalary and other dues in time and he had to approach this Courtby filing number of applications. He also made oral requests tothis Court from time to time on various dates of hearings for givingappropriate directions. Even after repeated orders passed onvarious dates in CW No. 2578/99, petitioner was not given his fulldues. 3) The respondent bank is relying upon the Board Resolution dated8. 10. 1999 as per which it is decided to shift its MBD from Delhi to Mumbai. However in the application dated 13. 10. 1999, there was no such referenceto this Board Resolution. On. the contrary, in the said application dated13. 10. 1999, it was mentioned that the petitioner stood transferred fromkarof Bagh office of the bank. Not only this respondent had filedaffidavit on 17. 12. However in the application dated 13. 10. 1999, there was no such referenceto this Board Resolution. On. the contrary, in the said application dated13. 10. 1999, it was mentioned that the petitioner stood transferred fromkarof Bagh office of the bank. Not only this respondent had filedaffidavit on 17. 12. 1999 in CWNo. 2578/99 and even in that affidavit, therewas not even a passing reference of the so-called Board Resolution andthese averments were made for the first time in the subsequent affidavitdated 21. 1. 2000 filed in the aforesaid writ petition. 4) Respondent had not even opened any MBD in Mumbai and withoutcompleting formalities for this purpose including necessary permission ofsebi, petitioner was sought to be transferred to Mumbai which clearly showedthat the transfer was not bonafide. ( 4 ) WHEN the matter was argued and the petitioner highlighted this aspect,petitioner was directed to submit written synopsis stating the effect of shifting ofmbd from Delhi to Mumbai without completing the formalities and also statingwhich are the formalities to be completed and what would be the effect of shiftingof MBD in the absence of such formalities have not been completed first. Petitionersubmitted the written submissions and the aforesaid aspects are dilated by thepetitioner in the following manner: I) In fact, the registration as a merchant Banker was granted to the Bankpursuant to the aforesaid recruitment. Right from its inception till date, themerchant Banking Division has only been functioning from its Lajpat Nagaroffice in Delhi. All activities of merchant banking so far handled by thebank, have been only through its Merchant Banking Division at Delhi. Allauthorities such as the Registrar of Companies, the RBI and SEBI are atpresent aware of the Merchant Banking Division of the Bank, only at Delhiand hence any proposat to shift the said department from Delhi to Mumbaiwould require adequate prior notice being given to the said authorities. II) Although it is contended by the respondents that pursuant to theboard Resolution, it had been decided to shift the Merchant Banking Divisionfrom Delhi to Mumbai, however, the respondents have not produced anydocument to establish the fact that, notice has been given to theconcerned authorities regarding the aforementioned Board Resolution andthe consequent decision to shift the Merchant Banking Division. Further,no agenda or minutes of the Board meeting have been produced toevidence this fact viz alongwith the resolution for shifting the Branch therehas. Further,no agenda or minutes of the Board meeting have been produced toevidence this fact viz alongwith the resolution for shifting the Branch therehas. been a simultaneous resolution for closure of the Merchant Bankingdivision which is presently functioning at Delhi. III) The closure of the Merchant Banking Division of the Bank in Delhi willadversely affect the interests of the investors to the Public Issue of the bank,which opened in 1998. Since post public issue compliances and investorgrievances have not yet been fully investigated and mitigated, closure ofthe Merchant Banking Division at this stage, as proposed by the Bank wouldbe against public interest, if the same is carried out without necessary,. clearance being obtained from SEBI. In fact in the past SEBI haspenalised the Corporation Bank and revoked its licence for non-complianceof its guidelines for disclosure and investor protection, for having closed itsbranch office without prior concurrence of SEBI. IV) Under the present guidelines issued by SEBI vis-a-vis investorprotection, investors have a right to receive true and correct informationregarding all events affecting the operations of the company and bringingabout material changes therein. Presently the Investor Grievances Redressalcell of the respondent bank is functioning through its Merchant Bankingdivision at New Delhi. Jt is the petitioner who is single-handedly handling/attending to post-Public Issue complaints. More than 1000 investors grievances regarding non-receipt of share certificate, dividend warrants,fully paid stickers etc. are being presently handled by the petitioner vis-a-vis share allotments made outside the State of Jammu and Kashmir. Hence atthis stage, shifting of the department without attending to the pendingcomplaints and without notifying the public at large, regarding theshift/resolution, is certainly not in the interest of public. The fact thatwhile the Board resolved to shift the MBD in October1999, without havingnotified the public or the concerned authorities till date, leaves no room forany doubt that the said Resolution has been prompted by decision extraneousto the interest of the Bank and the investors. The shares of the bank arelisted and traded on the Stock Exchange at Ludhiana (LSE ). The shares of the bank arelisted and traded on the Stock Exchange at Ludhiana (LSE ). As per clause36 of the agreement entered into between the said Stock Exchange andthe bank in consideration of Exchange listing it is mandatory for thebank to promptly notify the Stock Exchange on any material change inthe general character or nature of its business, where such change isbrought out by reason of the Bank selling, disposing or enlarging, restrictingor closing the operations of any unit or a division, or proposing to enlarge,restrict, close the operations of any unit or division or otherwise. Since theludhiana Stock Exchange has not been informed of the proposed closureof the Merchant Banking Division at Delhi, it clearly is in contravention ofthe terms of the aforementioned agreement. V) It is pertinent to mention that as per clause 42 of the said listingagreement, the deposit of an amount of 1 % of the public offer amount, is stillpending with the Ludhiana Stock Exchange and has not been refunded asyet, as certain post public issue compliances have not been carried out bythe bank so far. In these circumstances, any decision to close the Merchantbanking Rivision. sion and to transfer the petitioner, who has single-handedlybeen dealing with all the pre and post issue work, cannot be said to be guidedby bonafide reasons, more so when the said stock exchange has not beengiven any prior intimation. VI) Respondent had been bankers to the public issue of Patliputra Credit andsecurities Limited. The said company has not been complying with the postissue listing requirements and has now been found by SEBI not to beexisting at its last known address. In view thereof, the Merchant Bankingdivision of the bank has been advised by SEBI to furnish informationregarding the said company in order to trace its Promoters/directorsmoreover, the petitioner had also received summons under Sec. 131 of the Income Tax Act 1961 in connection with proceedings under the said Act inthe case of Patliputra Credit and Securities Limited. The said case hasnot yet been closed and therefore transferring the petitioner alongwith thewhole of the Merchant Banking Division to Mumbai, without notice to theincome Tax authorities and the SEBI would adversely affect the interestof the petitioner and expose him to personal jeopardy. The said case hasnot yet been closed and therefore transferring the petitioner alongwith thewhole of the Merchant Banking Division to Mumbai, without notice to theincome Tax authorities and the SEBI would adversely affect the interestof the petitioner and expose him to personal jeopardy. ( 5 ) HIGHLIGHTING the factual and legal consequences in shifting the MBD fromdelhi to Mumbai, the petitioner submitted that the proposed shifting of the MBD nothaving received the requisite concurrence of all the concerned authorities andwithout being notified to the general public at large, the same is against the veryessence of the code of conduct for Merchant Bankers as laid down by SEBI. AMerchant Banker in conduct of its business is expected to observe not only highstandards of integrity in its transactions, but also absolute transparency andfairness vis-a-vis investors. The SEBI (Merchant Bankers) Regulations 1992,which provide for a procedure for inspection of Merchant Bankers, empowers thesecurities Exchange to suspend registration of a Merchant Banker in casematerials facts affecting interests of investors are not disclosed. Hence, the bankwas undoubtedly under a mandatory obligation to have notified SEBI regarding itsresolution to shift its MBD to Mumbai. Moreover in view of the pending work indelhi, a decision to shift the entire MBD to Mumbai and to close the said departmentin Delhi cannot be held to be interests of the bank. The shifting of the MBD of thebank is not being carried out as per the requisite procedures. The same is a meanswhereby the bank is seeking to justify the transfer order dated 20. 10. 1999 which infact is not only in contravention of the terms of appointment of the petitioner but isalso an act of vindictiveness and victimisation. ( 6 ) DR. ASHRAF Ali, Senior Manager (Department of Law) of the respondent bankargued the case on behalf of the respondent and submitted preliminary objection tothe maintainability of the writ petition viz. Respondent bank is not a "state" or"instrumentality or an agency of State" under Article 12 of the Constitution ofindia and therefore the writ petition was not maintainable. ( 7 ) ON merits, it was submitted that admittedly as per the terms and conditions ofthe appointment of the petitioner, he could be posted to MBD in Delhi and Mumbai. Impugned order dated 20. 10. 1999 posting him to Mumbai office is therefore inaccordance with the terms of his appointment. ( 7 ) ON merits, it was submitted that admittedly as per the terms and conditions ofthe appointment of the petitioner, he could be posted to MBD in Delhi and Mumbai. Impugned order dated 20. 10. 1999 posting him to Mumbai office is therefore inaccordance with the terms of his appointment. It was further submitted that sincein the Board Meeting dated 8. 10. 1999, it was decided to shift MBD from Delhi tomumbai, petitioner was accordingly posted to Mumbai office to work in MBD only. Itwas also a policy decision of the Board to shift MBD from Delhi to Mumbai and itwas not permissible for the petitioner to challenge such policy decisions. It wasfurther submitted that since petitioner was the only person in respondent bank whowas in MBD and had the necessary experience and expertise in this regard, itwas the duty of the petitioner to complete all formalities which are required forthe purpose of shifting of the MBD from Delhi to Mumbai. Once the Board hadtaken the decision, implementation of that decision was the duty of the petitioner. The decision was in the overall interest of the bank since it was considered by theboard of Directors that MBD should be in Mumbai which is a commercial capital ofthe country. It was further stated that had petitioner made a representation againstthe transfer order before approaching this Court, he could have mentionedrequisite formalities and steps which are required for shifting of MBD from Delhi tomumbai and on petitioner s pointing out such formalities in his representation,instead of in the present writ petition, respondent bank could have taken appropriateaction on the same or could have directed the petitioner to undertake this exercise. Allegations of malafide or vindictiveness were refuted and it was submitted thatsuch malafides could not be imputed on Board of Directors who in their collectivewisdom had taken such a policy decision to shift MBD from Delhi to Mumbai whichhad the necessary consequence of transferring petition also from Delhi tomumbai. Therefore no such motives or malafides could be imputed in such adecision. It was also submitted that the petitioner s not joining Mumbai office wascausing hardships and loss to the respondent bank. ( 8 ) I have heard the counsel for both the parties in detail and have also perused therelevant record and considered the respective submissions of the parties. Therefore no such motives or malafides could be imputed in such adecision. It was also submitted that the petitioner s not joining Mumbai office wascausing hardships and loss to the respondent bank. ( 8 ) I have heard the counsel for both the parties in detail and have also perused therelevant record and considered the respective submissions of the parties. Beforedealing with the case on merit, let me first address myself to the preliminaryobjection raised by the respondents. RE: MAINTAINABILITY OF WRIT PETITION ( 9 ) IT may be mentioned that in CW No. 2578/99, no such objection was taken bythe respondents in their counter affidavit that respondent bank was not aninstrumentality or an agency of State under Article 12 of the Constitution. In fact thisobjection was taken for the first time in the counter affidavit filed on 14. 3. 2000 in thepresent writ petition. When this petition came up for hearing on 15. 3. 2000, thecounter affidavit filed by the respondent was not on record and it was orallysubmitted by Dr. Ashraf Ali that this aspect had already been concluded by thedivision bench of J and K High Court in the case of Jagdish Chander Gupta Vs. Jand K Bank Ltd. and Ors. reported in AIR 1986 J and K 1. Infact Dr. Ashraf ali wantedthe petition to be dismissed on that very day in view of the aforesaid judgment. However since petitioner s lawyer was not present, petitioner made a request tothe effect that he wanted to look into the matter and address arguments. Then thecase was renotified on 21. 3. 2000 after passing the following order: "mr. ASHRAF Ali, Law Officer of the respondent bank who is present in thecourt submits that the writ petition is not maintainable as respondent bankis not a state or other authority within the meaning of Article 12 of theconstitution of India. He reties upon the Division Bench judgment ofjammu and Kashmir High Court in the case of Jagdish Chander Gupta Vs. Jammu and Kashmir Bank Ltd and0rs. reported in AIR 1986 J andk 1. He alsosubmits that the writ petition is premature in any case inasmuch asbefore coming to the Court, petitioner has not exhausted the alternateremedy under the Rules. Petitioner who is present in person wants sometime to look into the matter to address arguments. At request, renotify on 21. 3. 2000status-quo to continue till the next date of hearing. He alsosubmits that the writ petition is premature in any case inasmuch asbefore coming to the Court, petitioner has not exhausted the alternateremedy under the Rules. Petitioner who is present in person wants sometime to look into the matter to address arguments. At request, renotify on 21. 3. 2000status-quo to continue till the next date of hearing. "( 10 ) ON 21. 3. 2000, matter was adjourned to24. 3. 2000. On 24. 3. 2000, whenthe matter came up for hearing and the counsel for the petitioner was confrontedwith the aforesaid Division Bench judgment of J andk High Court, it was pointed outby the counsel for the petitioner that matter on this aspect was pending before thesupreme Court and she was trying to locate the same. She prayed for 2-3 days time for this purpose as in that week there was vacation insupreme Court whichwas reopening on 27. 3. 2000. On this statement of the petitioner s counsel,dr. Ashraf Ali was confronted and was asked as to whether any such matter waspending in Supreme Court, because if the matter related to respondent bank itself,he should be aware of the same. On being prompted by the Court, the respondentinformed that the aforesaid judgment of the Division Bench was over-ruled by Fullbench of J and K High Court in SWP No. 960/92 entitled Mr. Chandji Koul Vs. J andk Bank Ltd. and Ors. by judgment dated 5. 12. 1995 and respondent bank hadpreferred Special Leave Petition against the same in which leave was granted by Supreme Court videorder dated 10. 3. 1997 and operation of the Full Bench judgment had beenstayed. The respondent furnished copies of the Full Bench judgment as well asorders dated 10. 3. 1997 passed by Supreme Court. ( 11 ) THE aforesaid conduct of the respondent bank was not bonafide to say theleast. When the Division Bench judgment of the J and K High Court reported in AIR1986 J and K1 had been over-ruled by the Full Bench judgment dated 5. 12. 1995, itwas not proper for the respondent to rely upon the Division Bench judgment whilemaking submissions on 15. 3. 2000. Least that was expected was to inform thecourt about Full Bench judgment also even if the respondent bank wanted tocontend that the Full Bench judgment having been stayed by Supreme Court shouldnot be relied upon. 12. 1995, itwas not proper for the respondent to rely upon the Division Bench judgment whilemaking submissions on 15. 3. 2000. Least that was expected was to inform thecourt about Full Bench judgment also even if the respondent bank wanted tocontend that the Full Bench judgment having been stayed by Supreme Court shouldnot be relied upon. ( 12 ) BE as it may, the position which emerges from the aforesaid judgments is thatdivision Bench of J and K High Court has held respondent bank not to be "state"under Article 12 of the Constitution of India. However although this judgment is overruled by the Full Bench of the same High court, operation of the Full Bench judgmentstands stayed by the Supreme Court. Therefore, one view which could be takenis that as on today, the Division Bench judgment should not be relied upon as itstands over-ruled by the Full Bench. The other view which could be adopted is not torely upon Full Bench judgment as its operation has been stayed by Supreme Courtand in that event not to rely either upon Division Bench or Full Bench judgment anddecide the question afresh on the basis of material placed on record as towhether respondent bank is State or instrumentality or an agency of State withinthe meaning of Article. 12 of the Constitution. However, I need not go into this exercise in this writ petition inasmuch as, on meritsof the case as well, I find that challenge to the transfer order is not sustainable. Therefore as the matter is pending before the Apex Court, I leave this question open. RE: VALIDITY OF TRANSFER ( 13 ) LET me now deal with the grounds on which the impugned transfer is challengedby the petitioner. It hardly needs to be emphasised that transfer is anadministrative function. An employer is the best judge about the requirement andposting of its employees. Courts are not to interfere with the discretion of theemployer in such matters. Scope of judicial review is very limited and the transfercan be challenged only under two circumstances namely, (a) when their transfer is anact of mala fides on the part of the respondents; when it is made in violation ofstatutory provision. In Union of India Vs. Courts are not to interfere with the discretion of theemployer in such matters. Scope of judicial review is very limited and the transfercan be challenged only under two circumstances namely, (a) when their transfer is anact of mala fides on the part of the respondents; when it is made in violation ofstatutory provision. In Union of India Vs. S. L. Abbas cited in (1993) 4 SCC 357 :air 1993 SC 444, the Supreme Court made the following pertinent observations: " An order of transfer is an incident of Government service. Who shouldbe transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violationof any statutory provisions, the Court cannot interfere with it. Whileordering the transfer there is no doubt, the authority must keep in mind theguidelines issued by the Government on the subject. Similarly if aperson makes any representation with respect to his transfer theappropriate authority must consider the same having regard to theexigencies of administration. " ( 14 ) TO the similar effect are the observations of Supreme Court in the case ofunion of India Vs. N. H. Kirtania reported in (1989) 3 SCC 447 , Shilpi Bose Vs. Stete of Bihar reported in 1991 Supp. (2)SCC659, Union of Indians. N. P. Thomasreported in AIR 1993 SC 1605 , Abani Ranta Ray Vs. State of Orissa reported in1995 Supp. (4) SCC 169 and N. K. Singh Vs. Union of India reported in (1994) 6scc 98. It is not necessary to multiply judgments. However, it would be apt to quotethe following observations of Supreme Court in the case of N. K. Singh Vs. Union ofindia (supra): "assessment of worth must be left to the bona fide decision of the superiorsin service and their honest assessment accepted as a part of servicediscipline. Transfer of a Government servant in a transferable service isa necessary incident of the service career. Assessment of the quality ofmen is to be made by the superiors taking into account several factorsincluding suitability of the person for a particular post and exigencies ofadministration. Several imponderables requiring formation of a subjectiveopinion in that sphere may be involved, at times. The only realisticapproach is to leave it to the wisdom of that hierarchical superior to makethat decision. Assessment of the quality ofmen is to be made by the superiors taking into account several factorsincluding suitability of the person for a particular post and exigencies ofadministration. Several imponderables requiring formation of a subjectiveopinion in that sphere may be involved, at times. The only realisticapproach is to leave it to the wisdom of that hierarchical superior to makethat decision. Unless the decision is vitiated by mala fides or infractionof any professed norm or principle governing the transfer, which alonecan be scrutinised judicially, there are no judicially manageablestandards for scrutinising all transfers and the courts lack the necessaryexpertise for personnel management of all Government Departments. This must be left, in public interest to the. departmental heads subject tothe limited judicial scrutiny indicated. It was also observed that:"challenge in courts of a transfer when the career prospects remainunaffected and there is no detriment to the Government servant must beeschewed and interference by courts should be rare, only when ajudicially manageable and permissible ground is made out. " ( 15 ) IN view of the position mentioned above, it is clear that transfer order can beinterfered with only if it is against the statutory provision or service conditions ofthe concerned employee or passed in a malafide manner. In so far as transfer ofthe petitioner from Delhi to Mumbai is concerned, it is categorically mentioned bythe respondents that the same is to MBD of the bank in Mumbai. Transfer is not onlyincidence of service, there is a clear provision in the service conditions of thepetitioner for his transfer. Further, it is the admitted case that he can be posted inmbd of the bank in Delhi or Mumbai. Therefore the transfer order passed in thiscase is not in contravention of his terms of appointment. There is no force in thecontention of the petitioner that the respondent bank has no MBD in Mumbai andtherefore transfer order is outside the scope of his appointment. It has been clarifiedby the respondent in the counter affidavit that the bank has decided to shift MBDfrom Delhi to Mumbai and petitioner is accordingly posted to Mumbai for thispurpose. ( 16 ) IN so far as challenge to the transfer order on the grounds of malafides isconcerned, I am of the opinion that the petitioner has not been able to make out acase of malafides which would warrant interference in the impugned order bythis Court. ( 16 ) IN so far as challenge to the transfer order on the grounds of malafides isconcerned, I am of the opinion that the petitioner has not been able to make out acase of malafides which would warrant interference in the impugned order bythis Court. Nodoubt, the petitioner was earlier transferred from Delhi to Srinagarand then to Karol Bagh office and both these transfers were not in MBD andtherefore not permissible. However merely because of these reasons, it cannot besaid that the intention of the-respondent bank is to harass the petitioner or to seethat the petitioners somehow-transferred out of Delhi. The Board of Directors ofthe respondent bank has taken policy decision for shifting the MBD from Delhi tomumbai. This decision having been taken at the highest level, it cannot be inferredthat the decision was only to victimise the petitioner or the decision is arbitrary. In its wisdom, if the Board of respondent bank decides to shift MBD from Delhi tomumbai which is the commercial capital of the country feeling that it would be betterto have MBD in Mumbai, bonafides of the respondent bank in taking such a decisioncannot bedoubted. The Courts are not to interfere with such policy decisions. ( 17 ) NEEDLESS to mention, in order to prove the allegations of malafides, thepetitioner has to make out a strong case of malafides. In the case of State of Uttarpradesh Vs. Dr. V. N. Prasad reported in (1995) 2 SCC 151 it was held by thesupreme Court that nature of evidence to establish mala fides in passing thetransfer order has to be strong and convincing. It was further held that in theabsence of prima fade material to establish mala fides of the transfer orderpresumption of bona fides would be drawn. The grounds taken on the basis of whichmalafides are alleged are not sufficient and there are no compellingcircumstances from which malafides could be inferred, particularly as mentionedabove, the decision to shift MBD from Delhi to Mumbai is taken at the highest level. Petitioner being the only official in the bank who specialises in this branch ofbanking and when MCD is going to be in Mumbai, it is but natural consequence thatpetitioner also is to be posted to MBD in Mumbai. Nodoubt, the respondent bankhad in its application dated 13. 10. 1999 or affidavit dated 17. 12. Petitioner being the only official in the bank who specialises in this branch ofbanking and when MCD is going to be in Mumbai, it is but natural consequence thatpetitioner also is to be posted to MBD in Mumbai. Nodoubt, the respondent bankhad in its application dated 13. 10. 1999 or affidavit dated 17. 12. 1999 filed in CWNo. 2578/99 had not mentioned about this Board Resolution which was passed bythe Board on 8. 10. 1999. However it can be termed as inaction or carelessness onthe part of the persons who are pursuing the said case and because of thisomission, it cannot be inferred that no such Resolution was passed on 8. 10. 1999. The bank has produced true attested copy of the said Resolution on record, andtherefore, it cannot be said that this plea is taken by the respondent bank as anafterthought plea. ( 18 ) LIKEWISE, merely because some of the payments including salary and allowancesetc. were not paid to the petitioner in time and he had to seek appropriate ordersfrom this Court from time to time for payment of the same, it cannot be inferred thatthe transfer order is malafide as two things have no interconnection. Nodoubt theconduct of the officials at lower level in not giving the proper treatment to thepetitioner in this respect may be condemnable,able, such conduct cannot be linked withthe transfer which has been occasioned due to the reasons mentioned above anddue to the act of the bank s highest organ namely the Board of Directors. ( 19 ) PETITIONER has also highlighted in detail the adverse effects of shifting of MBDfrom Delhi to Mumbai without completing the formalities which have already beenmentioned above while recording arguments of the counsel for the petitioner. All thismay show that the respondent bank has not taken proper care before deciding toshift MBD from Delhi to Mumbai. However on this ground, the Court cannot interferewith the policy decision of the respondent bank in shifting the MBD from Delhi tomumbai. (Reference UOI and Ors. Vs. S. L. Dutta and Anr. reported in AIR 1991 SC363, State of Andhra Pradesh and Anr. Vs. V. Sadanandam and Ors. reported in air 1989 SC 2060 , G. B. Mahajan and Ors. Vs. The Jalgaon Municipal Councn andors. reported in AIR 1991 SC 1153 , All India Ex-Emergency Commissionedofficers and Short Commissioned Officers Welfare Association andanr. Vs. UOI and Anr. reported in 1995suppl. reported in AIR 1991 SC363, State of Andhra Pradesh and Anr. Vs. V. Sadanandam and Ors. reported in air 1989 SC 2060 , G. B. Mahajan and Ors. Vs. The Jalgaon Municipal Councn andors. reported in AIR 1991 SC 1153 , All India Ex-Emergency Commissionedofficers and Short Commissioned Officers Welfare Association andanr. Vs. UOI and Anr. reported in 1995suppl. (1) SCC 78 ). Whether the administrativedecision of the respondent bank is in the interest of bank or not is for the bank todecide and this Court cannot sit over the wisdom of the Board of Directors in thisrespect. However, I may hasten to add that the legal formalities pointed out by thepetitioner inshifting MBD from Delhi to Mumbai are the important aspects whichhave to be borne by the respondent bank. Whether Board of Directors wereconscious of these aspects or not is not known. In fact, Dr. Ashraf Ali could notsatisfactorily answer the difficulties pointed out by the petitioner and he stated, atthe bar, that the petitioner being the only merchant banker in the respondent bankand knows better about these procedural formalities which are required to becompleted, it was expected of him to enlighten the concerned functionaries in therespondent bank about the same and once these are brought to the notice of therespondent bank, the respondent bank would take care of the same. This kind ofreply also shows that the bank was not conscious of these aspects when thedecision was taken. Although it is a matter entirely within the domain of therespondent to decide the shifting of MBD from Delhi to Mumbai, at the same timelegal formalities for shifting the said MBD to Mumbai are to be fulfilled as well. Respondent bank is not only expected to but it is rather imperative for respondentbank to comply with these legal provisions including various permissions from allconcerned such as Registrar of Companies, RBI and SEBI etc. Authoritiesshould also keep in mind and deliberate upon the purported adverse effect on thepublic issue of the bank which opened in 1998. It is hoped that keeping in view theaforesaid aspects highlighted by the petitioner, the respondent bank will deliberateon these issues and give a second look to the entire matter. It may not be out ofplace to mention that the respondent bank had earlier decided to open MBDs atdelhi as well as Mumbai and in fact recruitment of 2 officers namely petitioner aswell as Sh. It may not be out ofplace to mention that the respondent bank had earlier decided to open MBDs atdelhi as well as Mumbai and in fact recruitment of 2 officers namely petitioner aswell as Sh. A. K. Salaria was made for this purpose for Delhi and Mumbaidivisions respectively. Since Sh. Salaria did not join, Mumbai division of MBD wasnot opened at that time. Thus if the bank, after deliberating on the aspectshighlighted by the petitioner, come to conclusion that retention of MBD in Delhi isalso necessary for proper functioning and in the interest of the bank, therespondent bank can consider opening of another MBD in Mumbai rather thanshifting MBD from Delhi to Mumbai. However all these aspects are to be consideredby the respondent bank and it is entirely the discretion of the respondent bank totake whatever decision it wants to take in this respect keeping in view the overallinterest of the bank as well as that of public at large. Further more, if therespondent bank still maintains the decision to shift MBD from Delhi to Mumbai,in what way the legal formalities are to be completed and for that purpose whetherit would be appropriate to keep petitioner in Delhi for completion of theseformalities is again a decision which is to be taken by the respondent bank. Howeveras this Court is not interfering with the decision of the respondent bank in thetransfer of the petitioner from Delhi to Mumbai ,in case respondent bank stilldecides that petitioner is to be transferred to Mumbai immediately, it is made clearthat petitioner shall in no way be responsible for any legal or any other liability if anyfor non-compliance of the legal provisions/formalities/procedures for shifting ofdelhi office to Mumbai office. The writ petition is accordingly disposed of with the aforesaid observations. There shall be no order as to costs.