REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.                   OF 2009 (Arising out of SLP (C) No.14044 of 2006)

Union of India & Ors. … Appellants

Versus

Muralidhara Menon & Anr. … Respondents

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. Interpretation  and/or  application  of  circular  letters  issued  by  the  

Central Board of Direct Taxes (CBDT) dated 14.5.1990 is in question in this  

appeal which arises out of a judgment and order dated 14.10.2005 passed by  

a Division Bench of the High Court of Kerala at Ernakulam in Writ Petition  

No.25155 of 2003 allowing the writ petition filed by the respondents herein

from  a  judgment  and  order  dated  10.10.2002  passed  by  the  Central  

Administrative  Tribunal,  Ernakulam in  OA Nos.728 of  2000 and 782 of  

2000.

3. The basic fact of the matter is not in dispute.   

Respondents herein were working in different States.  They filed an  

application for their transfer to the State of ‘Kerala Charge’ from ‘Gujarat  

Charge’ on or about 14.5.1990.  Indisputably the Board has the requisite  

power to regulate ‘inter-charge’ transfers wherefor it issues guidelines from  

time to time.  One of such circulars was issued on 14.5.1990, the relevant  

portion whereof read as under:

“(d) A person who seeks transfer, should apply to  the  head  of  the  department,  chief  commissioner director general under whom  he is working, who will, on being satisfied,  take  up  the  matter  with  his  head  of  the  department  in  the  charge  to  which  the  employee seeks transfer.  The latter head of  the department will examine the request on  merits  and  pass  necessary  orders  for  absorption  of  the  person  seeking  transfer.  Such  request  shall  be  considered  and  conceded only against a clear vacancy.  His  decision  in  the  matter  shall  be  final.   No  request  for  re-transfer  shall  be  entertained  under any circumstances.

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(e) The direct recruits coming on transfers will  be  shown  against  direct  recruitment  quota  and promotees against the promotion quota.”

4. On the respondents’ application for transfer, it was found that there  

did not exist  any vacancy in the cadre of UDC in direct  recruit  quota in  

Kerala Charge so as to enable it to accommodate the respondents on inter-

charge transfer.  However, indication was given to the respondents by the  

Chief  Commissioner  of  Income  Tax  that  in  case  they  were  willing  for  

transfer to the post  of LDC, they may opt therefor.   Respondents agreed  

thereto voluntarily to their reversion from the post of UDC to the post of  

LDC in order to get them transferred from Gujarat Charge to Kerala Charge.  

They filed a specific undertaking in this behalf.  Relying on or on the basis  

thereof, the order of transfer was issued.

5. Respondents  thereafter  filed  representations.   The  request  made  

therein  was  not  acceded  to.   They  filed  original  applications  before  the  

Central Administrative Tribunal.  It may be placed on record that one of the  

employees, Sri Nair, had filed a similar representation which was allowed by  

the Chief Commissioner of Income Tax.  Other employees who had been  

transferred made similar representations.  Their representations having been  

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rejected,  Original  Applications  were  filed  which  by  reason  of  various  

judgments were allowed.   

6. However,  the  Tribunal  so  far  as  the  case  of  the  respondent  is  

concerned,  directed  the  respondent  to  consider  his  representation  dated  

8.5.1997.   

The  said  representation  was  rejected  by  an  order  dated  17.1.2000,  

holding that they had voluntarily agreed for reversion and, thus, there has  

been no vacancy in the ‘Kerala Charge’ to accommodate them.   

7. Central  Administrative  Tribunal  was  approached  again  by  the  

respondents which was marked as OA No.728 of 2000 and 782 of 2000.  By  

reason of a judgment and order dated 10.10.2002, the Tribunal dismissed the  

said application holding that the cases of other persons who had applied for  

relaxation and obtained the same were clearly different from the cases of the  

respondents  who had accepted  the  condition  of  reversion  and the  orders  

passed only on the basis of their willingness expressed in that behalf.   

The Tribunal furthermore noted that despite the objections raised in  

the Original Applications, those persons who would be adversely affected, if  

the order of the Tribual is implemented, had not been impleaded as parties.   

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8. Respondents filed writ applications thereagainst which by reason of  

the impugned judgment have been allowed by the High Court, holding :

“We feel that the tribunal ought to have examined  the matter more critically, as patently it was a case  of  hostile  discrimination.   Although  the  Asst.  Solicitor  General  had  vehemently  submitted  that  after  obtaining  a  transfer  on  request  and  after  almost a decade, it would have been impermissible  on the part of the applicants to agitate the claims to  unsettle  the  seniority  of  other,  we  find  extreme  difficulty to accept this argument.  When transfer  benefits  are  recognized  as  admissible,  of  course,  with certain restrictions, it has to be extended with  fairness.  Government is not expected to pick and  choose  persons  who  had  applied  for  transfer  directly to the CBDT, as the procedure followed is  contrary to the guidelines.  We have to note that  this had turned out as a sensitive issue.  Recording  requests  for  transfers,  inter-regional  registers  are  maintained  by  every  region  and  normally  the  transfer  application  are  considered  at  the  Commissioner’s  level.   The Board had a duty to  oversee that fairness was always practiced.”

The  High  Court  furthermore  opined  that  the  guidelines  dated  

14.5.1990 do not  speak of  any reversion as  a  pre-condition  for an inter-

regional transfer.  As regards the power of relaxation, it was observed:

“Further, the submission that relaxation was to be  there,  itself  is  a  misnomer  since  as  referred  to  earlier, the norms do not provide for a reversion at  all and a relaxation was not at all necessary on this  count.  Perhaps minimum incumbency in the post  

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was relevant, but that is not the objection that was  highlighted.   Even though the norms provide for  accommodation of candidates coming from direct  recruitment  quota  against  the  direct  recruitment  vacancy, and the promotees were to occupy only  posts against promotion quota, we see that in the  cases  where  preference  had  been  granted,  such  persons  had  been  accommodated  against  direct  recruitment quota so as to avoid any confrontation  with the claims of departmental hands.”

The High Court, without referring to any material brought before it,  

held:

“The  proximity  of  dates  relating  other  transfers  sufficiently  discloses  that  there  were  indeed  vacancies.  We can postulate the difficulties of the  petitioners,  viz.  that  after  having  worked  for  a  number of years as UDC, against  their  will  they  had to give a declaration that they are prepared to  opt  for reversion and then get a transfer  and get  bottom  seniority,  among  the  LDCs.   Further,  authorities  ensured  that  they  were  to  get  a  declaration from time that such steps will not be  subjected to challenge.   This,  we feel,  ought not  have  been  practiced  by  the  department  to  the  prejudice and detriment of the serving employee.  We find little merit in the objection raised.”

9. Mr. R. Radhakrishnan, learned senior counsel appearing on behalf of  

the  appellant,  would  submit  that  keeping  in  view  the  fact  that  the  

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respondents had expressed their willingness to be transferred to a lower post,  

they were estopped and precluded from contending contra.   

10. Mr.  Anupam Lal  Das,  learned  counsel  appearing  on  behalf  of  the  

respondents, on the other hand, urged that having regard to the fact that the  

persons similarly situated had been accommodated to the posts of UDC from  

other Charge to ‘Kerala Charge’, there was absolutely no reason as to why  

the respondents should have been discriminated against.  Our attention was  

drawn to the fact that the respondents have already been working against the  

post of UDC in terms of an order dated 4.12.2006 pursuant to the impugned  

judgment of the High Court.   

11. Respondents did not have any legal right to be transferred from one  

charge to another.  Indisputably, the seniority of the LDCs and UDCs are  

maintained chargewise.  Vacancies in the posts of UDCs are filled up from  

two sources, namely, by direct recruitment and promotion.  As the Service  

Rules provide for two different sources of recruitment and vacancies could  

be  identified  on  the  basis  thereof,  the  CBDT,  having  a  supervisory  

jurisdiction, could issue circulars from time to time.  It has not been disputed  

that  the  said  circular  letters  are  binding  on  all  the  authorities  of  the  

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department.   The  circular  letter  dated  14.5.1990  clearly  provides  for  

imputation of certain conditions laid down therein.

12. The procedures laid down, thus, were required to be complied with.  

A request made in that behalf could be considered only when there existed a  

clear vacancy.  From a perusal of the memorandum dated 17.1.2000, it is  

evident that the Board considered the matter carefully and found that there  

had been no vacancy of UDC in direct recruit quota in ‘Kerala Charge’ so as  

to enable the authorities to accommodate them on the basis of inter charge  

transfer.

13. However, it was found that the vacancies in the posts of LDC were  

available.   Only  on  that  basis,  the  respondents  herein  volunteered  to  be  

transferred to the posts of LDC.  It was at their request as also undertakings  

furnished by them, the order of transfers was passed.

14. Article  14  of  the  Constitution  of  India  providing  for  the  equality  

clause is a positive concept in terms whereof, the equals, subject to certain  

exceptions, are to be treated equally and unequals cannot be treated equally.  

If a relaxation has been granted in case of one employee on the basis of the  

materials available before the Board, the same by itself may not be treated to  

be a binding precedent so as to enable the Tribunal or High Court to issue a  

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writ of or in the nature of mandamus.  Our attention has not been drawn to  

any provision under the aforementioned circular or otherwise that the Chief  

Commissioner of Income Tax had any power of relaxation.  If there are no  

vacancies, orders of transfer could not be made.  Even if no vacancy existed  

in respect of the direct recruit quota, the respondents could not have been  

transferred.  In absence of any power of relaxation, the respondents could  

not  have  been  accommodated  on  the  post  of  UDCs  and  they  could  be  

transferred only on the post of LDCs which were vacant at the relevant time.  

In our opinion, relying on or on the basis of the case of Sri Nair only, the  

impugned judgment could not have been passed.   

15. The fact situation obtaining in case of Sri Nair has not been brought  

on record.  A writ of mandamus can be issued, provided there exists a legal  

right in the applicant and a corresponding legal duty in the respondent.  Even  

otherwise a Superior Court having a limited jurisdiction in this behalf would  

not  interfere with the discretionary jurisdiction exercised by the statutory  

authorities unless a clear case for interference is made out subject of course  

to just exceptions.   

16. Respondents  furthermore  having  given  an  undertaking  and  having  

opted to be transferred on the post of LDC could not have resiled therefrom.  

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They could not approbate and reprobate at the same time.  If an order was  

passed on their representations, they were bound thereby particularly when  

the circular letter itself suggested that an order of transfer had been passed  

would be final and no order for retransfer could be passed.  The principle of  

‘estoppel’ would, therefore, clearly be applicable.

17. It is not a case where the service conditions of the first respondent is  

governed by any statute or statutory rules.  Transfer as is well known is an  

incident of service.  An employee has no right to be posted at a particular  

place.  He, in law, cannot exercise his option to be posted in his home State  

unless there exists any statute or statutory rule governing the field.   Some  

policy decision was required to be taken presumably because a large number  

of requests were being received from the concerned employees.  It has not  

been contended that the said policy decision was illegal.  Even if the said  

policy  decision  was  illegal,  first  respondent  cannot  continue  to  remain  

posted in the State of Kerala. He may be asked to go back to his original  

posting, namely at some place which forms part of Gujarat Charge.   

18. For the reasons aforementioned,  the  impugned judgment cannot  be  

sustained, which is set aside accordingly.  The appeal is allowed.  However,  

we, in exercise of our jurisdiction under Article 142 of the Constitution of  

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India,  direct  that  in  view  of  the  fact  that  the  first  respondent  has  been  

working for a long time in the post of U.D.C., he may not be reverted to the  

post of L.D.C. but his seniority shall be counted from the date on which he  

has joined in the said post.  No cost.

……………….…..………….J. [S.B. Sinha]

..………………..……………J.  [Cyriac Joseph]

New Delhi; August 4, 2009

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