Posting of husband and wife who are in Government Service at different stations is a big problem for spouses. The Government of India does understand the problems faced by the employees so various guidelines are provided in relation to Transfer Policy on Spouse Ground.
However, it is not always feasible for the department to transfer an employee on spouse grounds and, therefore, government orders directing such transfers are often challenged in courts or Tribunals. These judgments elaborate upon the circumstances in which such orders stand or should be struck down.
Can an order of transfer be questioned in a court or tribunal?
Can an All India Services Officer be transferred to their home state on the ground of their marriage?
Is it possible for a person to claim a posting in the state where their spouse lives as a right?
While upholding the order of transfer of a government employee in Shillong, the Supreme Court held that an order of transfer can only be questioned in a Tribunal or a court of law when it has been passed in a malafide manner or violates any statutory provisions or any provision of law.
The Supreme Court held that an All India Services Officer shall not be transferred to her home state on the ground of her marriage and there is no question of directing the government to do the same.
Even if the governing rules and regulations of the service require the two spouses to be posted together as and when practicable, this does not provide any spouse the right to claim such a posting if the departmental authorities are of the opinion that it is not possible.
Supreme Court of India
Union Of India And Ors vs S.L. Abbas on 27 April, 1993
Equivalent citations: 1993 AIR 2444, 1993 SCR (3) 427
Author: B Jeevan Reddy
Bench: Jeevan Reddy, B.P. (J)
PETITIONER:
UNION OF INDIA AND ORS.
Vs.
RESPONDENT:
S.L. ABBAS
DATE OF JUDGMENT27/04/1993
BENCH:
JEEVAN REDDY, B.P. (J)
BENCH:
JEEVAN REDDY, B.P. (J)
VERMA, JAGDISH SARAN (J)
CITATION:
1993 AIR 2444 1993 SCR (3) 427
1993 SCC (4) 357 JT 1993 (3) 678
1993 SCALE (2)718
ACT:
%
Civil Services:
Fundamental Rules 11 and 15-Transfer of a Government
servant-When can be questioned in a Court/Tribunal-
Guidelines issued by Government-Whether have statutory
force.
Constitution of India,1950/Central Administrative Tribunals
Act, 1985:
Article 323-A/Section 14-Jurisdiction of Central
Administrative Tribunal-Exercise of-Whether Tribunal can
interfere with an order of Transfer.
HEADNOTE:
The respondent, a Central Government employee, who was
transferred from one place to another, challenged the order
of transfer on the grounds that: his wife was also employed
at the same place in a Central Government office; his
children were also studying there; he himself had suffered
backbone fracture injuries some time ago; the guidelines
contained in Government of India O.M. 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 period than the respondent had been allowed to
continue and his transfer was due to the mischief of his
Controlling Officer.
In the counter-affidavit filed by the appellants, it was
submitted that the transfer was ordered on administrative
grounds and was unexceptionable.,
A Single Member of the Central Administrative Tribunal
quashed the order of transfer on the ground that the power
of transfer was not an unfettered one, but was circumscribed
by various circulars/ guidelines contained in the
administrative instructions issued by the Government and an
order of transfer could be interdicted if it was
discriminatory, that in the matter of considering transfer
of an individual officer, the Office Memorandum dated
3.4.1986, educational dislocation of the children and health
ground,if present deserved special consideration and that
in view of the facts and circumstances of the case the
transfer order in question in respect of the respondent was
mala fide.
428
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 should be transferred where is a
matter for the appropriate authority to decide. Unless the
order of transfer is vitiated by malafides or is made in
violation of statutory provisions, the Court cannot
interfere with it. There is no doubt that, while ordering
the transfer 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, the husband and the
wife must be posted at the same place. The said guideline,
however, does not confer upon the government employee a
legally enforceable right. Executive instructions issued by
the Government are in the nature of guidelines. They do not
have statutory force. [430-C-E]
1.2. There is no dispute that the respondent is liable to
transfer anywhere in India. It is not the case of the
respondent that the order of his transfer was vitiated by
mala fides on the part of the authority making the order,
though the Tribunal says so, merely because certain
guidelines issued by the Central Government were not
followed. The immediate superior of unit, against whom
mischief had been attributed by the respondent, has nothing
to do with his transfer. [430-F]
2.1. 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, as is
evident from Article 323-A of the Constitution. The
constraints and norms which the High Court observes while
exercising the said jurisdiction apply equally to the
Tribunal created under Article 323A. The Administrative
Tribunal is not an Appellate Authority sitting in judgment
over the order; of transfer. It cannot substitute its own
judgment for that of the authority competent to transfer.
[430-H,431 -A]
2.2. In the instant case, the Tribunal has dearly exceeded
its jurisdiction in interfering with the order of transfer.
The order of the Tribunal reads as if it were sifting in
appeal over the order of transfer made by the Senior
Administrative Officer (competent authority). [431-B]
Bank of India v. Jagjit Singh Mehta, [1992] 1 S.C.C. 306,
explained.
429
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2348 of 1993. From the Judgment and Order dated 13.7.1992 of the Central Administrative Tribunal, Guahati in O.A. No. 33/91. Ms. K. Amareswari, B.P. Sarathy and C.V. Subba Rao for the Appellants.
P.K. Goswami, Kailash Vasdev, Ms. Lira Goswami and Ms. Alpana Poddar for the Respondent.
The Judgment of the Court was delivered by 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 Officer, office of the Director, Botanical Survey of India, (Ministry of Environment 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 Administrative 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 off-ice 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 Government of India O.M. dated 3.4.1986 have not been kept in mind while ordering his transfer. tie 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 transfer was ordered on administrative grounds and is unexceptionable.
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 by various circulars/guidelines contained in the administrative instructions issued by the Government. An order of transfer can be interdicted if it is discriminatory. The said principles are applicable to the case of the respondent. Further "in the matter of considering transfer of an individual officer, the Office Memorandum dated 3.4.1986, educational dislocation of the children and health ground, if all present, deserve special consideration not to pass the order." Having said so the learned Member recorded the following finding: "In view of the above facts and 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.
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The judgments discuss labor laws governing the welfare and well-being of employees in India. More specifically, the judgments discuss different governing rules and regulations of organizations. These include Bank of India (Officers’) Service Regulations, 1979, and All India Services Officer’s Policy.
The judgments also discuss the Administrative Tribunals Act, 1985, and the extent of its jurisdiction as provided under the Act.
In situations like these, if you want a transfer on spouse grounds but the department won't provide it to you, you'll need to know what actions you may take to get one or fight a government transfer order. This is why it is critical to have a labour lawyer on your side who can advise you on the appropriate procedures to take and assist you in restoring your rights. As a specialist in service sector rules, a labor lawyer can help you understand the options open to you in cases like these, as well as guide you through the appropriate procedures to settle your issues.
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