http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

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