Jyoti vs State Of Haryana & Ors.

“24 First and foremost, transfer in an All India Service is an incident of service. Whether, and if so where, an employee should be posted are matters which are governed by the exigencies of service. An employee has no fundamental right or, for that matter, a vested right to claim a transfer or posting of their choice.

25 Second, executive instructions and administrative directions concerning transfers and postings do not confer an indefeasible right to claim a transfer or posting. Individual convenience of persons who are employed in the service is subject to the overarching needs of the administration.

26 Third, policies which stipulate that the posting of spouses should be preferably, and to the extent practicable, at the same station are subject to the requirement of the administration. In this context, Justice JS Verma (as the learned Chief Justice then was) speaking for a three-judge Bench of this Court in Bank of India v. Jagjit Singh Mehta held :

“5.

There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the 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 services, the hardship resulting from the two being posted at different stations may be 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 not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees. 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 appointment in an all-India service with the incident of transfer to any place in India, subordinating the need of the couple living together at one station, they cannot as of right claim to be relieved 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 the guidelines require the two spouses to be 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 it feasible. The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees.”

"7.

xx xx xx xx xx Apart from the said fact, the question which is required to be examined is whether such posting and transfer policy confers any enforceable right in favour of respondent No.1 so as to challenge his transfer purportedly made on administrative ground before the Tribunal. Guidelines have been framed by the authorities to regulate their internal working and with a view to deal with different situations evenly. Such guidelines are not statutory in nature. Any departure from the said guidelines by itself does not give right to an employee to successfully challenge his transfer. The transfer can be challenged on limited grounds i.e., when the same is not within the cadre or the authority is not competent to order transfer or it is in violation of the statutory rules or actuated by mala fide. The transfer is normal incidence of service and an employee has no right to resist his transfer on the basis of alleged violation of the guidelines. The issue is not res integra. In Bank of India v. Jagjit Singh Mehta, 1992(1) SCT 161 : AIR 1992 SC 519, Hon'ble Supreme Court was seized of the guidelines for posting husband and wife at one station even if their employers be different. The Court found that the only thing required in terms of the guidelines is that the departmental authorities should consider this aspect along with the exigencies of administration. Thus, no right is conferred on an employee to remain at the same place even if administrative exigency and transfer policy do not permit it.

8.

In Union of India v. S.L. Abbas, 1995 (4) SCT 455 : AIR 1993 SC 2444, Hon'ble Supreme Court held to the following effect :-

"Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer of vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt the authority must keep in mind the guidelines issued by the Government on the subject. Similarly, if a person makes any representation with respect to his transfer the appropriate authority must consider the same 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 guidelines, however, do not confer upon the Government employee a legally enforceable right".

9.

In State of U.P. v. Gobardhan Lal, 2004 (2) SCT 368 : AIR 2004 SC 2165, Hon'ble Supreme Court held that no government servant can contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. The administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving of denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service. The order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable right unless shown to be vitiated by mala fides or is made in violation of any statutory provisions.

10.

In National Hydroelectric Power Corporation Limited v. Shri. Bhagwan, 2002 (1) SCT 236 : AIR 2001 SC 3309, Hon'ble Supreme Court held that unless an order of transfer is shown to be an outcome of mala fide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the Tribunals 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 management, as against such orders passed in the interest of administrative exigencies of the service concerned.

11.

In S.L. Abbas's case (supra), Hon'ble Supreme Court has held that the jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Article 226 of the Constitution of India in service matters. The constraints and norms which the High Court observes while exercising the said jurisdiction apply equally to the Tribunal created under Article 323A of the Constitution. The Central Administrative Tribunal is not an Appellate Authority sitting in judgment over the orders of transfer. It cannot substitute its own judgment for that of the authority competent to transfer.

12.

A Full Bench of this Court in Jagir Singh Kanungo v. The State of Punjab through the Secretary Vigilance, Punjab, Chandigarh, 1993 (2) SCT 128 : 1993 (1) Punjab Law Reporter 376, has the occasion to interpret the guidelines issued by the State of Punjab for conclusion of the inquiry proceedings in a time bound manner. It was held that if the enquiry proceedings are not completed within the aforesaid period, no right accrues to the employee to approach the Court of law for enforcement of those guidelines. It was held to the following effect :-

"If the State Government have issued certain guidelines for the guidance of the various departments or the disciplinary authorities to impress upon them the necessity of finalising the departmental proceedings expeditiously or even within a fixed period, it does not mean that after the expiry of that period, a right in law accrues to the employee to approach the Court of law for the enforcement of those guide-lines... " Keeping in view the aforesaid parameters and the scope of the jurisdiction of the Tribunal in an application under section 19 of the Act, we are of the opinion that the order passed by the Tribunal setting aside the order of transfer is illegal exercise of the jurisdiction by the Tribunal. The guidelines are not statutory and do not confer any legally enforceable right on the basis of which an employee can challenge his transfer. No doubt, normally the guidelines are to be adhered to by the administrative authorities but their non-adherence will entitle an employee to bring such facts to the notice of the superior authorities but does not confer any right to seek quashing of the transfer either in an application under section 19 of the Act or under Article 226 of the Constitution of India. Under section 19 of the Act or under Article 226 of the Constitution, transfer order can be interfered with if it is shown to be vitiated by mala fide or in violation of the statutory provisions or having been passed by an authority not competent to pass such an order. Since none of the three conditions are satisfied in the case set up by respondent No.1, the order passed by the Tribunal cannot be sustained in law. "

"10.

In view of the foregoing enunciation of law by judicial decisions of this Court, it is clear that in absence of (i) pleadings regarding malafide, (ii) non-joining the person against whom allegation are made, (iii) violation of any statutory provision (iv) the allegation of the transfer being detrimental to the employee who is holding a transferrable post, judicial interference is not warranted. In the sequel of the said settled norms, the scope of judicial review is not permissible by the Courts in exercising of the jurisdiction under Article 226 of the Constitution of India. "