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PETITIONER:

UNION OF INDIA AND ORS.

Vs.

RESPONDENT:

S.L. ABBAS

DATE OF JUDGMENT27/04/1993

BENCH:

JEEVAN REDDY, B.P. (J)

BENCH:

JEEVAN REDDY, B.P. (J)

VERMA, JAGDISH SARAN (J)

CITATION:

1993 AIR 2444 1993 SCR (3) 427

1993 SCC (4) 357 JT 1993 (3) 678

1993 SCALE (2)718

ACT:

%

Civil Services:

Fundamental Rules 11 and 15-Transfer of a Government

servant-When can be questioned in a Court/Tribunal-

Guidelines issued by Government-Whether have statutory

force.

Constitution of India,1950/Central Administrative Tribunals

Act, 1985:

Article 323-A/Section 14-Jurisdiction of Central

Administrative Tribunal-Exercise of-Whether Tribunal can

interfere with an order of Transfer.

HEADNOTE:

The respondent, a Central Government employee, who was

transferred from one place to another, challenged the order

of transfer on the grounds that: his wife was also employed

at the same place in a Central Government office; his

children were also studying there; he himself had suffered

backbone fracture injuries some time ago; the guidelines

contained in Government of India O.M. dated 3.4.1986 had not

been kept in mind while ordering his transfer; some other

officials, who had been serving at the same place for a

longer period than the respondent had been allowed to

continue and his transfer was due to the mischief of his

Controlling Officer.

In the counter-affidavit filed by the appellants, it was

submitted that the transfer was ordered on administrative

grounds and was unexceptionable.,

A Single Member of the Central Administrative Tribunal

quashed the order of transfer on the ground that the power

of transfer was not an unfettered one, but was circumscribed

by various circulars/ guidelines contained in the

administrative instructions issued by the Government and an

order of transfer could be interdicted if it was

discriminatory, that in the matter of considering transfer

of an individual officer, the Office Memorandum dated

3.4.1986, educational dislocation of the children and health

ground,if present deserved special consideration and that

in view of the facts and circumstances of the case the

transfer order in question in respect of the respondent was

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mala fide.

428

Allowing the appeal, preferred by the Union of India and

others, this Court,

HELD: 1.1 An order of transfer is an incidence of

Government servie. Who should be transferred where is a

matter for the appropriate authority to decide. Unless the

order of transfer is vitiated by malafides or is made in

violation of statutory provisions, the Court cannot

interfere with it. There is no doubt that, while ordering

the transfer the authority must keep in mind the guidelines

issued by the Government on the subject. Similarly, if a

person makes any representation with respect to his

transfer, the appropriate authority must consider the same

having regard to the exigencies of administration. The

guidelines say that as far as possible, the husband and the

wife must be posted at the same place. The said guideline,

however, does not confer upon the government employee a

legally enforceable right. Executive instructions issued by

the Government are in the nature of guidelines. They do not

have statutory force. [430-C-E]

1.2. There is no dispute that the respondent is liable to

transfer anywhere in India. It is not the case of the

respondent that the order of his transfer was vitiated by

mala fides on the part of the authority making the order,

though the Tribunal says so, merely because certain

guidelines issued by the Central Government were not

followed. The immediate superior of unit, against whom

mischief had been attributed by the respondent, has nothing

to do with his transfer. [430-F]

2.1. The jurisdiction of the Central Administrative Tribunal

is akin to the jurisdiction of the High Court under Article

226 of the Constitution of India in service matters, as is

evident from Article 323-A of the Constitution. The

constraints and norms which the High Court observes while

exercising the said jurisdiction apply equally to the

Tribunal created under Article 323A. The Administrative

Tribunal is not an Appellate Authority sitting in judgment

over the order; of transfer. It cannot substitute its own

judgment for that of the authority competent to transfer.

[430-H,431 -A]

2.2. In the instant case, the Tribunal has dearly exceeded

its jurisdiction in interfering with the order of transfer.

The order of the Tribunal reads as if it were sifting in

appeal over the order of transfer made by the Senior

Administrative Officer (competent authority). [431-B]

Bank of India v. Jagjit Singh Mehta, [1992] 1 S.C.C. 306,

explained.

429

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2348 of 1993.

From the Judgment and Order dated 13.7.1992 of the Central

Administrative Tribunal, Guahati in O.A. No. 33/91.

Ms. K. Amareswari, B.P. Sarathy and C.V. Subba Rao for the

Appellants.

P.K. Goswami, Kailash Vasdev, Ms. Lira Goswami and Ms.

Alpana Poddar for the Respondent.

The Judgment of the Court was delivered by

B.P. JEEVAN REDDY, J. Heard counsel for the parties. Leave

granted.

Respondent is a Garden Curator in the Office of the

Scientist-SE, Botanical Survey of India, Eastern Circle,

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Shillong. By order dated January 29, 1991 he was

transferred from Shillong to Pauri (Uttar Pradesh) by the

Senior Administrative Officer, office of the Director,

Botanical Survey of India, (Ministry of Environment and

Forests, Government of India). As many as 19 persons were

transferred under the said order including the respondent.

The respondent has been working in Shillong since the year

1979.

The respondent approached the Gauhati Bench of the Central

Administrative Tribunal (Original Application No. 33 of

1991) questioning the order of his transfer. He submitted

that his wife is also employed at Shillong in and off-ice of

the Central Government, that his children are studying at

Shillong and further that he himself had suffered back-bone

fracture injuries some time ago. He submitted that the

guidelines contained in Government of India O.M. dated

3.4.1986 have not been kept in mind while ordering his

transfer. tie complained that some other officials who have

been serving at Shillong for a longer period, have been

allowed to continue at Shillong. He attributed 'mischief'

to his Controller Officer, Shri B.M. Wadhwa (third

respondent in the O.M.).

In the counter affidavit filed by the respondents, they

submitted that the transfer was ordered on administrative

grounds and is unexceptionable.

The learned Single Member of the Central Administrative

Tribunal quashed the order of transfer on the following

reasoning: the decisions of the Courts establish that the

power of transfer is not an unfettered one but is

circumscribed by various circulars/guidelines contained in

the administrative instructions issued

430

by the Government. An order of transfer can be interdicted

if it is discriminatory. The said principles are applicable

to the case of the respondent. Further "in the matter of

considering transfer of an individual officer, the Office

Memorandum dated 3.4.1986, educational dislocation of the

children and health ground, if all present, deserve special

consideration not to pass the order." Having said so the

learned Member recorded the following finding: "In view of

the above facts and circumstances and findings it is held

unhesitatingly that the transfer order no. BSI. 80/5/80-

Estt. dated 29.1.1991 in respect of applicant S.L.Abbas was

malafide and liable to be quashed." The Union of India has

preferred this appeal.

An order of transfer is an incident of Government Service.

Fundamental Rule 11 says that "the whole time of a

Government servant is at the disposal of the Government

which pays him and he may be employed in any manner required

by proper authority". Fundemental Rule 15 says that "the

President may transfer a government servant from one post to

another". That the respondent is liable to transfer

anywhere in India is not in dispute. It is not the case of

the respondent that order of his transfer is vitiated by

mala fides on the part of the authority making the order,-

though the Tribunal does say so merely because certain

guidelines issued by the Central Government are not

followed, with which finding we shall deal later. The

respondent attributed"mischief"to his immediate superior who

had nothing to do with his transfer. All he says is that he

should not be transferred because his wife is working at

shillong, his children are studying there and also because

his health had suffered a set-back some time ago. He relies

upon certain executive instructions issued by the Government

in that behalf. Those instructions are in the nature of

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guidelines. They do not have statutory force.

Who should be transferred where, is a matter for the

appropriate authority to decide. Unless the order of

transfer is vitiated by malafides or is made in violation of

any statutory provisions, the Court cannot interfere with

it. While ordering the transfer, there is no doubt, the

authority must keep in mind the guidelines issued by

the Government on the subject. Similarly if a person makes

any representation with respect to his transfer, the

appropriate authority must consider the same having regard

to the exigencies of administration. The guidelines say that

as far as possible, husband and wife must be posted at the

same place. The said guideline however does not confer upon

the government employee a legally enforceable right.

The jurisdication of the Central Administrative

Tribunal is akin to the jurisdiction of the High Court under

Article 226 of the constitution of India in service matters.

This is evident from a persual of Article 323-A of the

constitution. The constraints and norms which the High Court

observes while exercising the

431

said jurisdiction apply equally to the Tribunal created

under Article 323-A. (We find it all the more surprising

that the learned Single Member who passed the impugned order

is a former Judge of the High Court and is thus aware of the

norms and constraints of the writ jurisdiction.) The

Administrative Tribunal is not an Appellate Authority

sitting in judgment over the orders of transfer. It cannot

substitute its own judgment for that of the authority

competent to transfer. In this case the Tribunal has

clearly exceeded its jurisdiction in interfering with the

order of transfer. The order of the Tribunal reads as if it

were sitting in appeal over the order of transfer made by

the Senior Administrative Officer (competent authority).

Shri Goswami, learned counsel for the respondent relies upon

the decision of this Court in Bank of India v. Jagjit Singh

Mehta [1992] 1 S.C.C.306 rendered by a Bench of which one of

us (J.S. VermaJ.) was a member. On a perusal of the

judgment, we do not think it supports the respondent in any

manner. It is observed therein:

"There can be no doubt that ordinarily and as far as

practicable the husband and wife who are both employed

should be posted at the same station even if their employers

be different. The desirability of such a course is obvious.

However, this does not mean that their place of posting

should invariably be one of their choice, even though their

preference may be taken into account while making the

decision in accordance with the administrative needs. In

the case of all-India services, the hardship resulting from

the two being posted at different stations may be

unavoidable at times particularly when they belong to

different services and one of them cannot be transferred to

the place of the other's posting. While choosing the career

and a particular service, the couple have to bear in mind

this factor and be prepared to face such a hardship if the

administrative needs and transfer policy do not permit the

posting of both at one place without sacrifice of the

requirements of the administration and needs of other

employees. In such a case the couple have to make their

choice at the threshold between career prospects and family

life. After giving preference to the career prospects by

accepting such a promotion or any appointment in an all-

India service with the incident of transfer to any place in

India, subordinating the need of the couple living together

at one station,'they cannot as-of right claim to be relieved

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of the ordinary incidents of all-India service and avoid

transfer to a different place on the ground that-the spouses

thereby would-be posted at different

places............................................

No doubt

432

the guidelines requires the two spouses to he posted at one

pi" as far as practicable, but that does not enable any

spouse to claim such a posting as of right if

the departmental authorities do not consider

it feasible. The only thing required is that

the departmental authorities should consider

this aspect along with the exigencies of

administration and enable the two spouses to

live together at one station if it is possible

without any detriment to the administrative

needs and the claim of other employees."

(emphasis added)

The said observations in fact tend to negative the

respondent's contentions instead of supporting them. The

judgment also does not support the Respondents' contention

that if such an order is questioned in a Court or the

Tribunal, the authority is obliged to justify the transfer

by adducing the reasons therefor. It does not also say that

the Court or the Tribunal can quash the order of transfer,

if any of the administrative instructions/guidelines are not

followed, much less can it be charactrised as malafide for

that reason. To reiterate, the order of transfer can be

questioned in a court or Tribunal only where it is passed

malafide or where it is made in violation of the statutory

provisions.

For the above reasons, the appeal is allowed. The judgment

under appeal is set aside. There shall be no order as to

costs.

N.P.V. Appeal Allowed.

433