India & Ors. Vs. Muralidhara Menon & ANR.  INSC 1394 (4 August
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
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 2
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.
The basic fact of the matter is not in dispute.
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 where for it issues guidelines from time to time. One
of such circulars was issued on 14.5.1990, the relevant portion whereof read as
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.
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.
direct recruits coming on transfers will be shown against direct recruitment
quota and promotees against the promotion quota."
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 there for. Respondents agreed there to 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.
filed a specific undertaking in this behalf. Relying on or on the basis
thereof, the order of transfer was issued.
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 4 rejected, Original
Applications were filed which by reason of various judgments were allowed.
However, the Tribunal so far as the case of the respondent is
concerned, directed the respondent to consider his representation dated
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.
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.
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.
Respondents filed writ applications there against which by reason
of the impugned judgment have been allowed by the High Court, holding :
feel that the tribunal ought to have examined the matter more critically, as
patently it was a case of hostile discrimination. Although the Asst.
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
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:
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 6 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."
Court, without referring to any material brought before it, held:
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
little merit in the objection raised."
Mr. R. Radhakrishnan, learned senior counsel appearing on behalf
of the appellant, would submit that keeping in view the fact that the 7
respondents had expressed their willingness to be transferred to a lower post,
they were estopped and precluded from contending contra.
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
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 8 department. The
circular letter dated 14.5.1990 clearly provides for imputation of certain
conditions laid down therein.
The procedures laid down, thus, were required to be complied with.
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.
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.
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.
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 9
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.
opinion, relying on or on the basis of the case of Sri Nair only, the impugned
judgment could not have been passed.
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.
Respondents furthermore having given an undertaking and having
opted to be transferred on the post of LDC could not have resiled there from.
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.
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.
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 11
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]