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CASE NO.: Appeal (civil)  1010-1011 of 2004

PETITIONER: Union of India and Ors.                                  

RESPONDENT: Sri Janardhan Debanath and Anr.                  

DATE OF JUDGMENT: 13/02/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: JUDGMENT

(Arising out of SLP(C) Nos. 20002-20003/2003)

ARIJIT PASAYAT,J

       Leave granted.

       In these two appeals, the Union of India questions  legality of the judgment rendered by a Division Bench of the  Guwahati High Court, Agartala Bench, Agartala whereby two  writ petitions filed by the respondents were allowed and the  common order of transfer dated 10.9.2002 in respect of four  employees was quashed so far as it relates to the  respondents.  

       Background facts sans unnecessary details are as  follows:

       The respondents were working in the Postal Services  Department. They were transferred from Agartala Division to  Meghalaya Division by order of transfer dated 10.9.2002.  Feeling aggrieved by the order, the respondents (writ  petitioners) along with two others moved the Central  Administrative Tribunal at Guwahati (in short the  ’Tribunal’). The Tribunal after hearing the parties directed  the authorities to consider the representations made by the  two lady applicants who were co-applicants along with the  respondents within one month. So far as the present  respondents are concerned, no interference was made by the  Tribunal with the order. Challenging the decision of the  Tribunal, the writ petitions were filed. The grounds on  which the writ petitions were filed were (a) the transfer  orders of the two respondents were in violation of the  provisions of Rule 37 of the Posts and Telegraphs Manual,  Volume IV (in short ’the Manual’) read with D.G. Posts  Letter No.20-12/90-SPBI dated 23.8.1990; (b) the transfer is  in violation of Rule 15 of the Fundamental Rules (in short  ’FR 15’) and (c) the inter Divisional transfer would effect  the seniority and promotional prospects of the writ  petitioners and (d) the transfer order was passed as a  measure of penalty.  

       The Union of India took the stand that the transfer  was done in public interest and on account of exigencies of  administration. It was pointed out that the respondents not  only misbehaved with the Director (Postal Services), a  senior lady officer, she was confined and dragged from one  room to another and this was done with a view to force her

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to withdraw the charge sheet against the Deputy Post  Master. She was abused in filthy language and was  physically manhandled. This conduct was certainly  unbecoming of an employee and with a view to enforce  discipline and to avoid recurrence of such unfortunate  incident, they were transferred. There was no violation of  either Rule 37 of the Manual or FR 15. The High Court  accepted the prayers made in the writ petitions and held  that transfer was impermissible in terms of Rule 37 and was  in violation of FR 15. It was as a measure of penalty and  the seniority and the promotional prospects were likely to  be affected.  

       In support of the appellants Mr. Raju Ramachandran,  learned senior counsel submitted that the approach of the  High Court is clearly erroneous. It erroneously held that  there was violation of Rule 37 or FR 15. The interpretation  put on the ambit of FR 15 is clearly wrong, as the proviso  has not been taken note of. As the transfer was not a  punitive one but as a measure of enforcing discipline, in  public interest and in the exigencies of administration  there was no scope for the High Court to entertain the writ  petitions and grant relief.  

       Per contra, Mr. Rajinder Sachar, learned senior counsel  submitted that in the transfer order itself it has been  mentioned that the employees were undesirable, as they had  misbehaved. Before effecting transfer there ought to have  been an enquiry to find out whether there was any  misbehaviour committed by the respondents, or that they were  undesirable as stated. According to him, the High Court has  correctly interpreted FR 15. With reference to a letter  dated 23.8.1990, it was submitted that there was no scope  for transferring from any part of the country to another  part as was stipulated in the appointment order. It was  submitted that in terms of the letter, the scope of transfer  to any part of the country was obliterated. There can be no  grievance if the transfer was affected within the same  circle, but making the transfer from one circle to another  was impermissible.  

As Rule 37 and FR 15 form the foundation of the claim  of the respondents, it would be appropriate to quote them.  Rule 37 read as follows:

       "All officials of the Department are  liable to be transferred to any part of  India unless it is expressly ordered  otherwise for any particular class or  classes of officials. Transfers should not,  however, be ordered except when advisable in  the interests of the public service.  Postmen, village postmen and Class IV  servants should not, except for very special  reasons, be transferred from one district to  another. All transfers must be subject to  the conditions laid down in Fundamental  Rules 15 and 22."

FR 15 reads as follows:

       "(a) The President may transfer a  Government servant from one post to another  provided that except-

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       (1) on account of inefficiency or  misbehaviour, or

       (2)     on his written request,

a Government servant shall not be  transferred to, or except in a case covered  by Rule 49, appointed to officiate in a post  carrying less pay than the pay of the post  on which he holds a lien."  

       A bare reading of Rule 37 shows that officials of the  Department are liable to be transferred to any part of India  unless it is expressly ordered otherwise for any particular  class or classes of officials. Transfers were not to be  ordered except when advisable in the interests of public  service. The transfers can be made subject to conditions  laid down in FR 15 and 22. The appellant has indicated as to  why and under what circumstances the transfers were thought  proper in the interests of public service. The High Court  while exercising jurisdiction under Articles 226 and 227 of  the Constitution of India, 1950 (in short the  ’Constitution’) had gone into the question as to whether the  transfer was in the interest of public service. That would  essentially require factual adjudication and invariably  depend upon peculiar facts and circumstances of the case  concerned. No government servant or employee of a public  undertaking has any legal right to be posted forever at any  one particular place or place of his choice since transfer  of a particular employee appointed to the class or category  of transferable posts from one place to other is not only an  incident, but a condition of service, necessary too in  public interest and efficiency in the public administration.  Unless an order of transfer is shown to be an outcome of  mala fide exercise or stated to be in violation of statutory  provisions prohibiting any such transfer, the courts or the  tribunals normally cannot interfere with such orders as a  matter of routine, as though they were the appellate  authorities substituting their own decision for that of the  employer/management, as against such orders passed in the  interest of administrative exigencies of the service  concerned. This position was highlighted by this Court in  National Hydroelectric Power Corporation Ltd. v. Shri  Bhagwan and Anr. (2001 (8) SCC 574).

       The Fundamental Rules primarily deal with the financial  implications and consequences relating to services of  government servants whose pay is debited to Civil Estimates  and to any other class of Governments servants too which the  President may, by general or special order, declare them to  be applicable. Rule 15 has to be read along with Rule 14-B.  FR 15 has been quoted above and, therefore, quotation of FR  14-B would suffice. The same reads as follows:

       "FR 14-B: Subject to the provisions of  Rule 15, the President may transfer to  another post in the same cadre, the lien of  a Government servant who is not performing  the duties of the post to which the lien  relates".  

       A bare reading of FR-15 makes it clear that except in

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cases where the transfer is (a) on account of inefficiency  or mis-behaviour or (b) on a written request the government  servant cannot be transferred or except in a case covered by  Rule 49 appointed to officiate in a post carrying less pay  than the pay of the post on which he holds a lien. The clear  intention of the prescription is that except the two  categories indicated above, in all other cases the pay to be  paid on transfer shall not be less than of the post on which  he holds a lien. Exception is made in case of a transfer  where it is on account of inefficiency or mis-behaviour. In  a case where transfer is on account of inefficiency or mis- behaviour, the same can be made to a post carrying less pay  than the pay of the post on which he holds a lien. Similar  is the position where a transfer is made on a written  request. Where the transfer is otherwise than for  inefficiency or mis-behaviour or on a written request made  by the transferred employee, the protection of pay is  ensured. The High Court seems to have completely mis- construed the rule as if there cannot be any transfer in  terms of FR 15 on account of inefficiency or mis-behaviour.  The view is clearly contrary to the pronounced intention of  FR 15.  

That brings us to the other question as to whether the  use of the expression ’undesirable’ warranted an enquiry  before the transfer. Strong reliance was placed by learned  counsel for the respondents on a decision of this Court in  Jagdish Mitter v. The Union of India (AIR 1964 SC 449, para  21, p.456) to contend that whenever there is a use of the  word ’undesirable’ it casts a stigma and it cannot be done  without holding a regular enquiry. The submission is clearly  without substance. The said case relates to use of the  expression ’undesirable’ in an order affecting the  continuance in service by way of discharge. The decision has  therefore no application to the facts of the present case.  The manner, nature and extent of exercise to be undertaken  by Courts/Tribunals in a case to adjudge whether it casts a  stigma or constitutes one by way of punishment would also  very much depend upon the consequences flowing from the  order and as to whether it adversely affected any service  conditions - status, service prospects financially and same  yardstick, norms or standards cannot be applied to all  category of cases. Transfers unless they involve any such  adverse impact or visits the persons concerned with any  penal consequences, are not required to be subjected to same  type of scrutiny, approach and assessment as in the case of  dismissal, discharge, reversion or termination and utmost  latitude should be left with the department concerned to  enforce discipline, decency and decorum in public service  which are indisputably essential to maintain quality of  public service and meet untoward administrative exigencies  to ensure smooth functioning of the administration.                     

Additionally, it was pointed out by learned counsel for  the Union of India that as indicated in the special leave  petition itself there was no question of any loss of  seniority or promotional prospects. These are the aspects  which can be gone into in an appropriate proceeding, if at  all there is any adverse order in the matter of seniority or  promotion. It was also submitted that transfer was within  the same circle i.e. the North Eastern Circle and,  therefore, the question of any seniority getting affected by  the transfer prima facie does not arise.  

The allegations made against the respondents are of

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serious nature, and the conduct attributed is certainly  unbecoming. Whether there was any mis-behaviour is a  question which can be gone into in a departmental  proceeding. For the purposes of effecting a transfer, the  question of holding an enquiry to find out whether there was  mis-behaviour or conduct unbecoming of an employee is  unnecessary and what is needed is the prima facie  satisfaction of the authority concerned on the contemporary  reports about the occurrence complained of and if the  requirement, as submitted by learned counsel for the  respondents, of holding an elaborate enquiry is to be  insisted upon the very purpose of transferring an employee  in public interest or exigencies of administration to  enforce decorum and ensure probity would get frustrated. The  question whether respondents could be transferred to a  different division is a matter for the employer to consider  depending upon the administrative necessities and the extent  of solution for the problems faced by the administration. It  is not for this Court to direct one way or the other. The  judgment of the High Court is clearly indefensible and is  set aside. The writ petitions filed before the High Court  deserve to be dismissed which we direct. The appeals are  allowed with no order as to costs.