UNION OF INDIAversusMAMTA ANURAG SHARMA AND ANR.

                           UNION OF INDIA                                 A
                                   v.
                MAMTA ANURAG SHARMA AND ANR.

                         SEPTEMBER 5, 2001

                    [M.B. SHAH AND R.P. SETHI, JJ.]                       B

     Service Law:

       All India Service Officers-Inter-cadre transfer on marriage-New
Guidelines dated 19.9.1995-Preamble-Providing for inter-cadre transfers C
of officers on marriage subject to the condition that transfer is not to home
State of spouse who is given such a transfer-Indian Police Service Officer of
West Bengal Cadre-Her home State being Andhra Pradesh-Married to !PS
Officer of Andhra Pradesh cadre-Request for change of cadre from West
Bengal to Andhra Pradesh cadre-Government ofJndia permilled Inter-Cadre D
transfer of husband from Andhra Pradesh to West Bengal-Wife's petition for
transfer to Andhra Pradesh cadre dismissed by Central Administrative
Tribunal-Writ petition before High Court-High Court directing the Central
Governmem to consider request of officer for transfer from West Bengal to
Andhra Pradesh within four months-Held, in view of the policy of Central
Government not to ailow inter-cadre transfer to home State on ground of E
marriage, there was no question of directing Central Government to consider
case of officer to transfer her to Andhra Pradesh cadre--However, her husband
may file _an applicaiion for being transferred to West Bengal cadre.

     CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 6281-                F
6282 of 2001.

     From the Judgment and Order dated 20.12.99 and 13.3.2000 of the
Andhra Pradesh High Court in W.P. No. 21818/99 and R.W.P.M.P. No. 4223
of 2000.

     Mukul Rohtagi, Additional Solicitor General, A.K. Srivastava and Ms. G
Sushma Suri for the Appellant.

     P.P. Rao, T.V. Ratnam and K. Subba Rao for the Respondents.

     The following Order of the Court was delivered:
                                 571
                                                                          H
    572                    SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.

A         Leave granted

          Heard the learned counsel for the parties.

         The Union of India has challenged the orders dated 20th December,
    1999 in Writ Petition No. 218 I 8 of 1999 and dated 15th March, 2000 in
B   Review WPMP No. 4223 of 2000 passed by the High Court of Andhra
    Pradesh at Hyderabad.

            By the impugned orders the High Court has directed as under:-

                "Learned counsel for the petitioner, however, brought to our notice
c           that the petitioner's husband has not been relieved by the State of
            Andhra Pradesh who has been transferred to West Bengal cadre.
            Under these circumstances, considering the fact that the petitioner's
            husband has not been relieved by the State of Andhra Pradesh, and
            in the light of the new guide-lines issued, we direct the respondents
            to consider the request of the petitioner for her transfer to the State
D
            of Andhra Pradesh, within four months from the date of receipt of a
            copy of this order."

          It is the contention of the learned Additional Solicitor General appearing
    for the Union of India that the impugned order passed by the High Court, on
E   the face of it, is illegal and total misconstruction of the new guidelines framed
    by the Government of India on Inter-Cadre transfer of All India Services
    Officers. As against this, the learned counsel for the respondents submitted
    that the impugned order passed by the High Court is only for the
    implementation of the new guide-lines which permit inter-cadre transfer to
    home-State in the case of marriage.
F
          Before appreciating the contentions, we would first refer to the facts of
    the present case, which are-Respondent Smt. Mamta Anurag Sharma joined
    the Indian Police Service w.e.f. 1.9.1982 and was allocated to l.P.S. Cadre of
    West Bengal. Her home-State was Andhra Pradesh. In the year 1985, she got
G   married to Mr. Anurag Sharma who was also an JPS Officer of Andhra
    Pradesh cadre. After marriage, respondent no. I requested for change of her
    cadre from West Bengal to Andhra Pradesh on the ground of marriage with
    an IPS Officer of the Cadre of Andhra Pradesh. Her request for transfer to
    Andhra Pradesh was rejected but thereafter both respondent no. I and her
    husband were transferred to JPS Cadre of Kamataka vide order date 2nd
H   Februray, 1994. It appears that some IPS Officers objected to that order and
                             U.0.1. v. M.A. SHARMA                            573
an application was filed before the Central Administrative Tribunal (for short A
the 'CAT) at Bangalore for setting aside the allocation of the respondent and
her husband to JPS Cadre at Karnatka. On 2.2.1994, the order passed by the
Government of India was stayed by the CAT. Later on the Government of .
Karnataka withdrew its concurrence to the allocation of the respondent and
her husband to the IPS Cadre at Karnatka. Thereafter, the Government of B
India sought further option from the respondent and her husband but they
declined to indicate any option and insisted for change of JPS Cadre of
respondent no. I from West Bengal to Andhra Pradesh only. Further to see
that respondent no. I lives in the company of her husband, the Government
of India on I 0th March, 1998 permitted Inter-Cadre transfer of her husband
from Andhra Pradesh Cadre to West Bengal IPS Cadre. The Government of C
Andhra Pradesh was requested to release husband of respondent no. I.
However, it appears that he was not willing to be considered for the JPS
Cadre of West Bengal and, therefore, he declined the said offer by his letter
dated 12th December, 1998. He emphatically stated that he was not willing
for a cadre transfer from Andhra Pradesh to any other State including the
State of West Bengal.                                                          D
      Thereafter, respondent no. I filed OA No. 1198 of 1998 before the
CAT at Hyderabad challenging the order dated I 0th March, 1998 on the
ground that it was bad in law and that she should be transferred to Andhra
Pradesh JPS Cadre, which was dismissed on 15th September, 1999. That                  E
order was challenged before the High Court by filing the aforesaid. writ
petition. The High Court by the impugned order directed the Central
Government to consider the request of the respondent for her transfer to the
State of Andhra Pradesh. within four months from the date of receipt of the
copy of the order.
                                                                                      F
      In our view, there is much substance in the contention raised by the
learned Additional Solicitor General appearing for the appellant - Union of
India as it appears that the High Court has not considered the new guidelines
of Inter-Cadre transfers of All India Services Officers in the proper perspective.
In the guide-lines, after narrating the existing policy, transfer policy prescribed
is as under :-                                                                        G
            "The communication received from the PMO about framing draft
        guidelines on certain issues dwell.ing on inter-cadre deputation, inter-
        cadre transfers, extension of services and incentives to officers in the
        North-eastern Cadres may please be seen. This note deals with item            H
    574                   SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.

A         (a) in FR i.e. guidelines in regard to inter-cadre transfers."

              The present policy on inter-cadre transfers adopted in the case of
          All India Service officers may please be seen at FIA.



B             At present the approved policy guidelines permit intercadre
          transfers only on marriage to another All India Service Officers. Cadre
          transfers have also been allowed on compassionate/medical grounds.

              To ensure a truly All India character to the three services, transfer
          on grounds of marriage between two members All India Service
c         Officers, allotted different Cadres, subject to the condition that the
          transfers is not to the home State of the spouse who is given such a
          transfer, is allowed.

              In the light of the directions of the PMO (FR) draft guidelines on
          inter-cadre transfers has been attempted and is placed below.
D
          (A) Inter-Cadre Transfer of All India services officers

                The present guidelines may be revised as follows:

              Inter-cadre transfers will continue to be permitted only for
          members of All India Service Officers on marriage to another member
E
          of an All India Service.

             Cadre transfers shall not be permitted to All India Service Officers
          on marriage to Im officer serving in a Central Service/State Service/
          Public Service Undertaking/any other organisation.
F             Generally, no cadre transfer should be permitted on medical
          grounds/personal reasons. However, for extreme hardship cases, the
          following criteria shall be applied before considering and deciding on
          the request for cadre change:

          (i)   the nature of the problem (s) to be assessed by Government of
G               India in each case, on merits; and
          (ii) the problem should be of such a nature that inter-cadre deputation
               will not solve the officer's problems.

             All requests for inter-cadre transfers will be approved by the
H         Minister-in-charge i.e. MOS (PP) in the case of IAS Officers, Home
                             U.0.1. v. M.A. SHARMA                             575
        Minister in the case of IPS Officers and Minister of environment and           A
        Forest in the case of IFS officers, in the first instance. Thereafter, all
        such requests for inte-cadre transfer shall be processed and submitted
        for the orders of the Appointment Committee of the Cabinet. "

       It appears that the High Court has not taken into consideration first part
which is the Preamble of the aforesaid policy which specifically provides that         B
the transfer of any spouse of the All India Services Officers should not be
allowed to the Home State. Subject to this condition, inter-cadre transfer of
officers is to be considered on the ground (a) marriage, or (b) extreme hardship.
Negative provision is also made to the effect that generally no cadre transfer
should be permitted on medical ground/personal reasons and also on the                 C
ground of marriage to an officer serving in a Central Service/State Service/
Public Service Undertaking/any other organization.

      This aspect is reiterated in the counter affidavit filed by the Director
(Police), Ministry of Home Affairs, Government of India, New Delhi. In
paragraph 15 of the affidavit, it has been specifically stated as under"-              D
            " ...... Under the extent policy, that at least 66.213% of the members
        of the All India Service in a State Cadre should be from outside the
        State inter-cadre transfer of All India Service Officers to their Home
        State is not allowed o~ the ground of marriage. To the respondent's
        knowledge no All India Service Officer has been transferred to is/her          E
        Home State on the ground of marriage after coming into effect the
        revised guidelines dated 19.9.1995 relating to inter-cadre transfer of
        All India Service Officers."

      In paragraph 16, it i.s further reiterated that no All India Services Officers
have been allowed inter-cadre transfer to his/her Home-State on the ground             F
of marriage. Further, it has been pointed out that policy of the Central
Government with regard to inter cadre transfer of All India Services Officers
does not permit inter cadre transfer to home state on ground of marriage and
the said policy has not been reviewed and revised vide communication dated
19.9.95; the guidelines relating to inter cadre transfer of All India Service          G
Officer reviewed and revised by the communication dated 19.9.95 only provide
for grounds on which the All India Service officers are allowed inter cadre
transfers.

     In view of this policy there was no question of directing the Central
Government to consider the case of respondent no. 1 to transfer her to Andhra          H
    576                     SUPREME COURT REPORTS [2001) SUPP. 2 S.C.R.

A Pradesh !PS Cadre. Therefore, the impugned direction issued by the High
    Court requires to be set aside and is hereby set aside.

         Hence, the order passed in Review WPMP No. 4223 of 2000 also
    would not survive.

B         However, learned Additional Solicitor General appearing for the Union
    of India states that if husband of respondent no. I files any application within
    two months from today for being transferred and posted in !PS Cadre in West
    Bengal, the same would be granted and appropriate orders would be passed.

           The appeal are allowed accordingly. There shall be no order as to costs.
c
    R.P.                                                         Appeals allowed.