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Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No. 1236  of 2020   (Arising out of SLP(C) No 1867 of 2020)

Union of India & Anr      .... Appellant(s)        

Versus

Deepak Niranjan Nath Pandit              ....Respondent(s)

J U D G M E N T

Dr Dhananjaya Y Chandrachud, J

1 Leave granted.

2 The respondent, who is an Assistant Commissioner of Customs, GST

and Central Excise was transferred from Mumbai to Bhubaneshwar on 5

September 2019.  Challenging the order of transfer, the respondent moved

the Central Administrative Tribunal1 in OA No 627 of 2019.  By an order

dated 17 September 2019, the CAT granted an ad interim stay of the order

of transfer.  Eventually, after the OA was heard, it was dismissed by the

CAT by an order dated 5 November 2019.  Aggrieved by the order of the

CAT, the respondent moved the High Court of Judicature at Bombay.  On

11 November 2019, at the production stage, the High Court continued the

ad interim order.  By the impugned judgment and order of the High Court

1“CAT”

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dated  2  December  2019,  the  Writ  Petition2 under  Article  226  of  the

Constitution was admitted and by way of an interim order, the ad interim

direction granted on 11 November 2019 was continued.   The Union of

India is in appeal.

3 The  services  of  the  respondent  are  transferable.   The  order  of

transfer was issued by the Government of India in the Ministry of Finance

(Central Board of Indirect Taxes and Customs) on 5 September 2019. By

the order,  five  officials  were  transferred from their  respective  places of

posting.  The respondent has, however,  chosen to contest the order of

transfer and as a result of the ad interim order of the CAT and the interim

order  of  the  High  Court  has  not  joined  at  the  place of  posting.  In  the

meantime, the respondent has been suspended.

4 The High Court, in interfering with the order of transfer, has relied on

two circumstances. Firstly, the High Court has noted that as a result of the

stay  on  the  order  of  transfer,  the  headquarters  of  the  respondent  will

remain at Mumbai and even if he is to be suspended, his headquarters will

continue to remain at Mumbai.  The second reason, which has weighed

with the High Court, is that the spouse of the respondent suffers from a

cardiac ailment and is obtaining medical treatment in Mumbai.  In our view,

neither of these reasons can furnish a valid justification for the High Court

to take recourse to its extraordinary jurisdiction under Article 226 of the

Constitution in passing an order of injunction of this nature.  Significantly,

the High Court has not even found a prima facie case to the effect that the

order of transfer was either mala fide or in breach of law. The High Court

2Writ Petition No 11669 of 2019

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could not have dictated to the employer as to where the respondent should

be  posted  during  the  period  of  suspension.   Individual  hardships  are

matters for the Union of India, as an employer, to take a dispassionate

view.  However, we are categorically of the view that the impugned order of

the  High  Court  interfering  with  the  order  of  transfer  was  in  excess  of

jurisdiction and an improper exercise of judicial power. We are constrained

to observe that  the impugned order  has been passed in  breach of  the

settled principles and precedents which have consistently been enunciated

and followed by this Court.  The manner in which judicial power has been

exercised by the High Court to stall a lawful order of transfer is disquieting.

We express our disapproval.  

5 Mr Manan Kumar Mishra, learned Senior Counsel urged that during

the  course  of  an  earlier  hearing,  the  Union  government  expressed  its

readiness to  post  the respondent  at  three alternative  places instead of

Bhubaneswhar  and  hence  the  order  of  transfer  may  be  modified.  We

decline to allow this jurisdiction to be utilized in terrorem to compel the

Union government to  post  the respondent to a place which he may be

prefer. There is no lawful reason for the respondent to cling on to a posting

at Mumbai.  He cannot claim a posting as of right to a place of his choice.  

6 We accordingly allow the appeal and set aside the interim order of the

High Court dated 2 December 2019 staying the transfer.  The interim order

passed by the High Court shall accordingly stand vacated.  Conditional on

the respondent reporting at Bhubaneshwar within a period of one week

from today, he will be at liberty to make a representation to the Union of

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India in regard to his transfer.  We make it clear that we are not making

any observations in this regard.

7  There shall be no order as to costs.

…………...…...….......………………........J.                                                                     [Dr Dhananjaya Y Chandrachud]

…..…..…....…........……………….…........J.                              [Indu Malhotra]

New Delhi;  February 07, 2020