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 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,
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
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
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