Holding

Executive guidelines are not legally enforceable rights and the CAT exceeded its jurisdiction; a transfer order can be interfered with only if it is malafide or violates statutory provisions.

Summary

The respondent, S.L. Abbas, a garden curator in the Botanical Survey of India, was transferred from Shillong to Pauri and challenged the order before the Central Administrative Tribunal (CAT), alleging that his wife’s posting, his children’s education, his health, and the non‑application of the Government of India Office Memorandum dated 3‑April‑1986 warranted special consideration. The CAT quashed the transfer, deeming it malafide for not adhering to the guidelines. On appeal, the Supreme Court held that a transfer is an incident of government service and that the guidelines are merely administrative instructions without statutory force; they do not confer a legally enforceable right. The Court further ruled that the CAT cannot substitute its judgment for that of the competent authority and had exceeded its jurisdiction. Consequently, the appeal was allowed and the CAT’s order set aside.

Issues considered

Whether Government of India guidelines issued in an Office Memorandum have statutory force and can be invoked to invalidate a transfer order.
Whether the Central Administrative Tribunal has jurisdiction to interfere with and quash a transfer order of a government servant.
Whether a transfer order can be set aside on the ground of being malafide absent a violation of statutory provisions.
Whether the guideline that spouses should be posted together creates an enforceable right for the employee.

Legislation cited

Central Administrative Tribunals Act, 1985
Constitution of Indias. Article 226, s. Article 323, s. Article 323-A
Fundamental Rules (Rule 11 and Rule 15)

Subjects

Transfer of government servantCentral Administrative TribunalGuidelines vs statutory lawJurisdictionMalafide orderService lawSpouse postingAdministrative law

Judgment

"-:;',,.,~- -...
. "', /' /

' INDIA AND ORS.
UNION OF __ .. _......_ ~"'--~~ - A

v. . ,

S.L.ABBAS

APRIL 27, 1993
B
· (JS. VERMA AND B.P. JEEVAN REDDY,JJ.)

Civil Services:
Funda;,,e,;talRu/es 11and15-Transferofa Govemmentservant-When can
he question~d·in ·a Court/fribunal-Guidelines issued iJY Government-Whether
haVe statutory force.
c
Constitution of India, 1950/Central Administrative Tribunals Act, 1985:

Article 323-NSection 14-Jurisdiction. of Central Administrative
Tribunal-Exercise of-Whether Tribunal can interfere with an order of Trans-
~ D

The rt.ipondent,a Central GoVfrnmentempl_oyee, who was transferred
Crom one vlace to another, challenged the order or transfer on the grounds
that: his wife was also employed at the same place in a Centra! GovernrnCnt
office; his children were also studying there; he himself had suffere~ back·
E
hone Cracture i_njuries some time ago; the guidelines contained in Govern·
men! orindia O.l\I. 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 p;riOd th.in the resP>ndcnt ~d hCeD allowed to continue and his
. transfer was due to the misChief of his Controlling Officer.

In the counter-affidavit med by the appellants, it was submitted that the F

.
tramf'er was ordered on administrative grounds and was unexceptionable.
.
A Single Member of the Central Administrative Tribunal quashed the
order or transfer on the ground that ~e power or transfer was not an
unfettered one, but was circumscribed by various circulars/ guidelines
contained in the administrative instructions issued by the Government and an G
order or transfer could be interdicted if it was discriminatory, that in the
matter or considering transfer of an individual officer, the Office ~femoran·

-* dum dated 3.4.1986, educational dislocation or the children and health
ground, if present, deserved special consideration and that in view or the facts
and circumstances of the case the transfer order in quesion in respect oCthe H
respondent was Ina/a fule. .
427
. .-·...--.-·f-1·'
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.,,.----_--
' .
':-,, . '
428 ,, i ,.- ' ·' \' '-'.'..SUPREME cOURT REPoRTS [1993] 3 S.c.R.

-_\· . . \ _., ' ~<~:~ < ~. '. . - .
\, "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 sho;,ld be transferred where is a matter for the appropriate authority
to decide. Unless the order or,i;.,..;.fer is vitiated by ma/afules or is made in
B violation of statuto'ry provisions, the Court cannot interfere with it. There is
no doubt that; while ordering the transfer the authority must keep in mind the
guidelin~ isSuCd by the Government on the subject. Similarly,_if a person
makes' any ~~presentation with respect to his t~nsfer, the approprbte
authority must consider the S3me having regard to the exigencies of ad min·
C istration. 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 notconfer
upOn the government employee a legally enforceable right. Executive instruC·
. ~ions issued by the Government are in the natufe or guidelines. They do not
have statutory force: [430-C-E)

' -o 1.2. The.re is no dispute that the respondent is liabl.: to transfer any-
i' where in India. I tis not the case or the respondent that the
order or his transrer
·.' was vitiated by maLi fules on the part or the authority making the ol-der,
thOugh the Tribunal says so, merely because certain guidelines issued by the
~ Central Government were not followed. The immediate superior of unit,
E against whom misChiefhad been attributed by the respondent, has nothing to
do with his transfer. [430-F]

'._ 2.1. The jurisdiction of the Central Administrative _Tribuii31 is akin lo
the )urisdi~lion or the High Court Under Article 226 of the Constitutio~ of
India inserVice mattCrs;as is evident from Article 323-A of the Constitution.
F , The constraints and norms which the High Court observes while exercising
the saidjur~ictton apply equally to the Tribunal created under Article 323-
A. The Administrative Tribunal ·is not an Ap~llate Authorit\· si.tting in
-judgment 0-;er.the orden of transfer. It cannot substitute its ow~ judgment
for t~at of the authority competent to transfer. [430-H;431 -A)

G
. 2.2. In the inStantcase, the Tribunal has clearly exceeded its jurisdiction
in interf~ring with the of.der of transfer. The order of the Tribunal reads as
sitting-in appeal ~ver' the ord~r or t..;nSfer made bf the Senior
''if it \were
- . . -
· Admillistrative Officer (competent authority). [431-B) ,. . _·

H · ' ''Bank of India v. Jagjit Singh Mehta. [1992) 1 S.C.C•.306, e~pl~in~d.

I
u.o.r. l'. S.L. ABBAS [REDDY, J.] 429

CNIL APPELLATE JURISDICTION: Civil Appeal No. 2348 of 1993. A

From the Judgment and Order dated 13. 7 .1992 of the Central Administrative
Tribunal, Guahati in O.A. No. 33191.

Ms. K. Amareswari, B.P. Sarathy and C.V. Subba Rao for the Appellants.
B

P.K. Goswami, Kailash Vasdev, Ms. Lira Goswami and Ms. Alpana Poddar
for the Respondent.

The Judgment of the Court was delivered by
c
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 D
Officer, office of the Director, Botanical Survey of India, (Ministry of Environ-
ment 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 Administra- E
' · tive 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 office 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 Governmentoflndia O.M. dated 3.4.1986 have not
F
been kept in mind while ordering his transfer. He 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 G
transfer was ordered on administrative grounds and is imexceptionabl~.

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
H
.by various circulars/guidelines contained in the administrative instructions issued
430 SUPREME COURT REPoRTS [1993] 3 S.C.R.

A by the Government. An order of transfer can be interdicted if it i,s discriminatory.
The said principles are applicable to th.e case of the respondent. Further "in the
matter of considering transfer of an individual officer, the Office Memorandum
dated 3.4.1986, educatio'nal dislocation of the children and health i ground, if all
--
.
present, deserve special consideration not to pass the order." Having said so the
learned Member recordea'the following finding: "In view of the above facts and
B 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 orderof transfer is an incident of Government Service. Fundamental Rule
c 11 says that "the whole time of a Government servant is at the disposal of the
Govenment 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 ma/a fides on the part of the authority making
D 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
E executive instructions issued by the Government in that behalf. Those instructions
are in the nature ot.guidelines. They do not have statutory force.

Who should be tr.ansferred where, is a matter for the approptiate authority to
decide. Unless the order of transfer is vitiated by malafides or is made in vio~ation
F of any statutory provisions, the Court cannot interfere with it. While orderi~g the
tiansfer, there is no ·doubt, the authority must keep in mine!. the guidelines issued
by the Government on the subject. Similarly if a person makes any representation
with respect to his trimsfer, the appropriate authority must consider the ;sbne
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
G howev~r does not confer upon the government employee a legally enforceable
right: ' '

The jurisdication Qf the Central Administrative Tribunal is akin to the
jurisdiction of the High .Court un~er Article 226 oft!le constitution of India in
8
service matters. This is evident troma perusal of Article 323-A of the-Constitution.
The constraints an~ norms which the High Court observes while exercising the ...
U.0.1. v. S.L. ABBAS !REDDY, J.) 431
. ,
said jurisdiction apply equally to the Tribunal created under Article 323-A. (We find A
it all the roore surpfising 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 jurisdication.) The Administrative Tribunal is not an Appel-
late Authority sitting in judgment over the orders of tran_sfer. It cannot substitute its
ownjudgmentforthat of the authority competent to transfer. In this case the Tribunal
has clearly exceeded its jurisdiction in interfering with the order of transfer. The B
order of the Tribunal reads as if it were sitting in appeal over the order of transfer
made by the Senior Administrative Offcer (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] l S.C.C.306 rendered by a c
Bench of which one of us (J.S. Verma,J.) 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 a& jar as practicable
the husband and wife who are both employed should be posted at the D
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
E
services, the hardship resulting from the two being posted at different
stations may b.e 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 F
not permit the posting of both at one place without sacrifice of the
requirements of the administration and needs of other amployees. 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 appoint~
ment in an all-India service with the incident of transfer to any G
place in India, subcifdinating the need of the couple living together
at one statio.n,"they cabnot as-0f right claim to be r:elieved 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 - H
432 SUPREME COURT REPORTS [1993] 3 S.C.R.

A the guidelines requires the two spouses tobe posted at one place 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
itfeasible. The only thing required is that the departmental authorities
should consider this aspect along with the exigencies of administra-
.tion and enable the two spouses to live together at one station if it is
B possible without any detriment to the administrative needs and the
claim of other employees." ·
(emphasis added)

c 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, mu.ch less can it be
D cp.aracterist:d.flS malafide for that reason. To reiterate, the order of transfer can be
questioned in a Court or Tribunal only where it is passedmalafide or where itis made
i,l).Ni"olation of the statutory provisions.

For the above reasons, the appeal is .allowed. The judgment under appeal is set
E aside. There shall be no order as to costs.

N.P.V. Appeal allowed.