Case Note & Summary
The respondent, an Assistant Commissioner of Customs, GST and Central Excise, was transferred from Mumbai to Bhubaneshwar on 5 September 2019. He challenged the transfer before the Central Administrative Tribunal (CAT), which initially granted an ad interim stay but later dismissed the OA on 5 November 2019. Aggrieved, he moved the Bombay High Court, which on 11 November 2019 continued the ad interim stay and later, by judgment dated 2 December 2019, admitted the writ petition and continued the interim stay. The Union of India appealed to the Supreme Court. The Supreme Court held that the High Court's interference was in excess of jurisdiction as there was no prima facie case of mala fides or breach of law. The reasons cited by the High Court—that the respondent's headquarters would remain at Mumbai during suspension and that his spouse had a cardiac ailment—were not valid justifications. The Court emphasized that individual hardships are for the employer to consider and that an employee cannot claim a posting as of right. The appeal was allowed, the interim order set aside, and the respondent was directed to report to Bhubaneshwar within one week, with liberty to make a representation.
Headnote
A) Service Law - Transfer - Interference by High Court - Article 226 of the Constitution - The High Court cannot interfere with a transfer order without finding a prima facie case of mala fides or breach of law - The High Court's order staying transfer based on headquarters remaining at Mumbai and spouse's medical treatment was held to be in excess of jurisdiction and improper exercise of judicial power (Paras 4-6).
B) Service Law - Transfer - Right of Employee - Transfer Policy - An employee cannot claim a posting as of right to a place of his choice - Individual hardships are matters for the employer to consider dispassionately (Paras 4-5).
Issue of Consideration
Whether the High Court was justified in granting interim stay on a transfer order under Article 226 of the Constitution without finding a prima facie case of mala fides or breach of law
Final Decision
Appeal allowed; interim order of High Court dated 2 December 2019 set aside; respondent directed to report at Bhubaneshwar within one week from today, with liberty to make representation to Union of India regarding transfer; no order as to costs.
Law Points
- Transfer order cannot be interfered with by High Court under Article 226 without prima facie case of mala fides or breach of law
- Individual hardships are matters for employer to consider
- Employee cannot claim posting as of right to a place of choice
Case Details
Civil Appeal No. 1236 of 2020 (Arising out of SLP(C) No 1867 of 2020)
Dr Dhananjaya Y Chandrachud, Indu Malhotra
Deepak Niranjan Nath Pandit
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Nature of Litigation
Civil appeal against interim order of High Court staying transfer of a government employee
Remedy Sought
Union of India sought setting aside of the High Court's interim order staying the transfer of the respondent
Filing Reason
The High Court continued the stay on the transfer order despite CAT dismissing the OA, and the Union of India challenged the High Court's order as being in excess of jurisdiction
Previous Decisions
CAT initially granted ad interim stay on 17 September 2019, later dismissed OA on 5 November 2019; High Court continued ad interim stay on 11 November 2019 and by judgment dated 2 December 2019 admitted writ petition and continued interim stay
Issues
Whether the High Court was justified in granting interim stay on a transfer order under Article 226 without prima facie case of mala fides or breach of law
Submissions/Arguments
Union of India argued that the High Court's interference was in excess of jurisdiction and improper exercise of judicial power
Respondent's counsel urged that Union government had expressed readiness to post respondent at three alternative places, but Supreme Court declined to allow jurisdiction to be used in terrorem
Ratio Decidendi
The High Court cannot interfere with a transfer order under Article 226 without finding a prima facie case of mala fides or breach of law; individual hardships are for the employer to consider; an employee cannot claim a posting as of right to a place of his choice.
Judgment Excerpts
The High Court could not have dictated to the employer as to where the respondent should be posted during the period of suspension.
We are categorically of the view that the impugned order of the High Court interfering with the order of transfer was in excess of jurisdiction and an improper exercise of judicial power.
There is no lawful reason for the respondent to cling on to a posting at Mumbai. He cannot claim a posting as of right to a place of his choice.
Procedural History
Transfer order issued on 5 September 2019; respondent filed OA before CAT on 17 September 2019, which granted ad interim stay; CAT dismissed OA on 5 November 2019; respondent filed writ petition before Bombay High Court, which continued ad interim stay on 11 November 2019 and by judgment dated 2 December 2019 admitted writ petition and continued interim stay; Union of India appealed to Supreme Court.
Acts & Sections
- Constitution of India: Article 226
