Union of India & Ors Vs. Sri Janardhan
Debanath and Anr  Insc 100 (13 February 2004)
Raju & Arijit Pasayat.
out of SLP(C) Nos. 20002-20003/2003) ARIJIT PASAYAT,J
these two appeals, the Union of India questions legality of the judgment
rendered by a Division Bench of the Guwahati High Court, Agartala Bench, Agartala
whereby two writ petitions filed by the respondents were allowed and the common
order of transfer dated 10.9.2002 in respect of four employees was quashed so
far as it relates to the respondents.
facts sans unnecessary details are as follows:
respondents were working in the Postal Services Department. They were
transferred from Agartala Division to Meghalaya Division by order of transfer
aggrieved by the order, the respondents (writ petitioners) along with two
others moved the Central Administrative Tribunal at Guwahati (in short the
'Tribunal'). The Tribunal after hearing the parties directed the authorities to
consider the representations made by the two lady applicants who were
co-applicants along with the respondents within one month. So far as the
present respondents are concerned, no interference was made by the Tribunal
with the order. Challenging the decision of the Tribunal, the writ petitions
were filed. The grounds on which the writ petitions were filed were
the transfer orders of the two respondents were in violation of the provisions
of Rule 37 of the Posts and Telegraphs Manual, Volume IV (in short 'the
Manual') read with D.G. Posts Letter No.20-12/90-SPBI dated 23.8.1990;
transfer is in violation of Rule 15 of the Fundamental Rules (in short 'FR 15')
inter Divisional transfer would effect the seniority and promotional prospects
of the writ petitioners and
transfer order was passed as a measure of penalty.
Union of India took the stand that the transfer was done in public interest and
on account of exigencies of administration. It was pointed out that the respondents
not only misbehaved with the Director (Postal Services), a senior lady officer,
she was confined and dragged from one room to another and this was done with a
view to force her to withdraw the charge sheet against the Deputy Post Master.
She was abused in filthy language and was physically manhandled. This conduct
was certainly unbecoming of an employee and with a view to enforce discipline
and to avoid recurrence of such unfortunate incident, they were transferred.
There was no violation of either Rule 37 of the Manual or FR 15. The High Court
accepted the prayers made in the writ petitions and held that transfer was
impermissible in terms of Rule 37 and was in violation of FR 15. It was as a
measure of penalty and the seniority and the promotional prospects were likely
to be affected.
support of the appellants Mr. Raju Ramachandran, learned senior counsel
submitted that the approach of the High Court is clearly erroneous. It
erroneously held that there was violation of Rule 37 or FR 15. The interpretation
put on the ambit of FR 15 is clearly wrong, as the proviso has not been taken
note of. As the transfer was not a punitive one but as a measure of enforcing
discipline, in public interest and in the exigencies of administration there
was no scope for the High Court to entertain the writ petitions and grant
contra, Mr. Rajinder Sachar, learned senior counsel submitted that in the
transfer order itself it has been mentioned that the employees were
undesirable, as they had misbehaved. Before effecting transfer there ought to
have been an enquiry to find out whether there was any misbehaviour committed
by the respondents, or that they were undesirable as stated. According to him,
the High Court has correctly interpreted FR 15. With reference to a letter
dated 23.8.1990, it was submitted that there was no scope for transferring from
any part of the country to another part as was stipulated in the appointment
order. It was submitted that in terms of the letter, the scope of transfer to
any part of the country was obliterated. There can be no grievance if the
transfer was affected within the same circle, but making the transfer from one
circle to another was impermissible.
Rule 37 and FR 15 form the foundation of the claim of the respondents, it would
be appropriate to quote them.
37 read as follows:
officials of the Department are liable to be transferred to any part of India unless it is expressly ordered
otherwise for any particular class or classes of officials. Transfers should
not, however, be ordered except when advisable in the interests of the public
village postmen and Class IV servants should not, except for very special
reasons, be transferred from one district to another. All transfers must be
subject to the conditions laid down in Fundamental Rules 15 and 22." FR 15
reads as follows:
The President may transfer a Government servant from one post to another
provided that except-
account of inefficiency or misbehaviour, or
his written request, a Government servant shall not be transferred to, or
except in a case covered by Rule 49, appointed to officiate in a post carrying
less pay than the pay of the post on which he holds a lien."
reading of Rule 37 shows that officials of the Department are liable to be
transferred to any part of India unless
it is expressly ordered otherwise for any particular class or classes of
officials. Transfers were not to be ordered except when advisable in the
interests of public service. The transfers can be made subject to conditions
laid down in FR 15 and 22. The appellant has indicated as to why and under what
circumstances the transfers were thought proper in the interests of public
service. The High Court while exercising jurisdiction under Articles 226 and
227 of the Constitution of India, 1950 (in short the 'Constitution') had gone
into the question as to whether the transfer was in the interest of public
service. That would essentially require factual adjudication and invariably
depend upon peculiar facts and circumstances of the case concerned. No
government servant or employee of a public undertaking has any legal right to
be posted forever at any one particular place or place of his choice since
transfer of a particular employee appointed to the class or category of
transferable posts from one place to other is not only an incident, but a
condition of service, necessary too in public interest and efficiency in the
an order of transfer is shown to be an outcome of mala fide exercise or stated
to be in violation of statutory provisions prohibiting any such transfer, the
courts or the tribunals normally 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 employer/management, as against such orders passed
in the interest of administrative exigencies of the service concerned. This
position was highlighted by this Court in National Hydroelectric Power
Corporation Ltd. v. Shri Bhagwan and Anr. (2001 (8) SCC 574).
Fundamental Rules primarily deal with the financial implications and
consequences relating to services of government servants whose pay is debited
to Civil Estimates and to any other class of Governments servants too which the
President may, by general or special order, declare them to be applicable. Rule
15 has to be read along with Rule 14-B.
has been quoted above and, therefore, quotation of FR 14-B would suffice. The
same reads as follows:
14-B: Subject to the provisions of Rule 15, the President may transfer to
another post in the same cadre, the lien of a Government servant who is not
performing the duties of the post to which the lien relates".
reading of FR-15 makes it clear that except in cases where the transfer is
account of inefficiency or mis-behaviour or
a written request the government servant cannot be transferred or except in a
case covered by Rule 49 appointed to officiate in a post carrying less pay than
the pay of the post on which he holds a lien.
clear intention of the prescription is that except the two categories indicated
above, in all other cases the pay to be paid on transfer shall not be less than
of the post on which he holds a lien. Exception is made in case of a transfer
where it is on account of inefficiency or mis-behaviour. In a case where
transfer is on account of inefficiency or mis- behaviour, the same can be made
to a post carrying less pay than the pay of the post on which he holds a lien.
Similar is the position where a transfer is made on a written request. Where
the transfer is otherwise than for inefficiency or mis-behaviour or on a
written request made by the transferred employee, the protection of pay is
ensured. The High Court seems to have completely mis- construed the rule as if
there cannot be any transfer in terms of FR 15 on account of inefficiency or mis-behaviour.
view is clearly contrary to the pronounced intention of FR 15.
brings us to the other question as to whether the use of the expression
'undesirable' warranted an enquiry before the transfer. Strong reliance was
placed by learned counsel for the respondents on a decision of this Court in Jagdish
Mitter v. The Union of India (AIR 1964 SC 449, para 21, p.456) to contend that
whenever there is a use of the word 'undesirable' it casts a stigma and it
cannot be done without holding a regular enquiry. The submission is clearly
without substance. The said case relates to use of the expression 'undesirable'
in an order affecting the continuance in service by way of discharge. The
decision has therefore no application to the facts of the present case.
manner, nature and extent of exercise to be undertaken by Courts/Tribunals in a
case to adjudge whether it casts a stigma or constitutes one by way of
punishment would also very much depend upon the consequences flowing from the
order and as to whether it adversely affected any service conditions - status,
service prospects financially and same yardstick, norms or standards cannot be
applied to all category of cases. Transfers unless they involve any such
adverse impact or visits the persons concerned with any penal consequences, are
not required to be subjected to same type of scrutiny, approach and assessment as
in the case of dismissal, discharge, reversion or termination and utmost
latitude should be left with the department concerned to enforce discipline,
decency and decorum in public service which are indisputably essential to
maintain quality of public service and meet untoward administrative exigencies
to ensure smooth functioning of the administration.
it was pointed out by learned counsel for the Union of India that as indicated
in the special leave petition itself there was no question of any loss of
seniority or promotional prospects. These are the aspects which can be gone
into in an appropriate proceeding, if at all there is any adverse order in the
matter of seniority or promotion. It was also submitted that transfer was
within the same circle i.e. the North Eastern Circle and, therefore, the question of any seniority getting
affected by the transfer prima facie does not arise.
allegations made against the respondents are of serious nature, and the conduct
attributed is certainly unbecoming. Whether there was any mis-behaviour is a
question which can be gone into in a departmental proceeding. For the purposes
of effecting a transfer, the question of holding an enquiry to find out whether
there was mis-behaviour or conduct unbecoming of an employee is unnecessary and
what is needed is the prima facie satisfaction of the authority concerned on
the contemporary reports about the occurrence complained of and if the
requirement, as submitted by learned counsel for the respondents, of holding an
elaborate enquiry is to be insisted upon the very purpose of transferring an
employee in public interest or exigencies of administration to enforce decorum
and ensure probity would get frustrated. The question whether respondents could
be transferred to a different division is a matter for the employer to consider
depending upon the administrative necessities and the extent of solution for
the problems faced by the administration. It is not for this Court to direct
one way or the other. The judgment of the High Court is clearly indefensible
and is set aside. The writ petitions filed before the High Court deserve to be
dismissed which we direct. The appeals are allowed with no order as to costs.