Transfers: Discretion Vs. Arbitrariness

Dear Readers,

In regard to the Transfers in public service, a beautiful judgment has been delivered by a Court of Law. It is a virtual treat to go through the judgment. To facilitate readers, the details regarding the judgment concerned are given in three parts. On going through the judgment one recalls the noble Latin maxim followed by the Judiciary in the West, “Fiat justitia, ruat caelum” (Let justice be done, even if heavens fall).

Part I: Excerpts regarding the particular case.

An employee working in the Railways was transferred. Feeling aggrieved, the employee approached the Court of Law. “The respondents in their reply in para 3 has stated that who should be transferred where, is a matter for appropriate authority to decide. Unless the order is vitiated by malafide or is made in violation of any statutory provision the court cannot interfere with it. While ordering 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 guideline, however, does not confer upon the government employee a legally enforceable right.”……………“The wheels of administration should be allowed to run smoothly and the courts or tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by malafides or by extraneous consideration without any factual background foundation.”………………“The Railway would contend that the applicant has assailed the order on the ground also that there are large number of officers who are having longer tenure than the applicant but it is part and parcel of the administration that some people may get longer posting in a particular place due to administrative interest. They also said that large number of officers in the grade of SAG did not work in Delhi upto the level of SAG or above. They would say that the applicant had been transferred during mid academic session which would affect adversely the education of children. But it is also stated by them that such problems are general with officers of his age and status.”………………..“The railway Board issued the transfer order during the mid academic session without any useful purpose. It is clear from the records that extraneous reasons were there. In normal situations transfer must be left with the administrative authorities alone. But as rightly held by the Hon_ble Apex Court, if a transfer is vitiated by malafide or made under extraneous consideration or made by malice it must be interdicted as seems to be the case in this matter. In view of the above discussions, it is the duty of the court to look into the transfer by taking into account the dictums of the Apex Court as quoted above. Therefore, I am holding that the transfer order dated 04.09.2009 stands vitiated and must be quashed. The Court should also see that the national interest and public interest should not suffer. Looking at from the other angle that prima facie if the suggestion of the applicant is put into operation the country can save Rs. 3,000/- crores. This is to be looked into seriously. To Serve the nation better, a copy of this order must be made available to (i) the Cabinet Secretary, (ii) Comptroller and Auditor General of India and (iii) Chief Vigilance Commissioner, Central Vigilance Commission for them to look into the totality of this matter and to enable them to exercise their jurisdictional responsibilities. I conclude by declaring the impugned order of transfer dated 04.09.2009 passed against the applicant, as illegal, arbitrary and not on public interest, it is vitiated by malice and malafides and the same is hereby quashed. The respondents are directed to repost the applicant to the post, which he held on 04.09.2009, within two weeks from the date of receipt of a copy of this order with all consequences. As I have already found that on deeper inspection the relief from charge on 6th of the month is a colourable exercise of power, this reposting shall be as if such change of guard never occurred. In short, it shall be as if this illegality never occurred and he is entitled to all financial consequences of continued engagement at that post. The respondents are further directed to pay Rs. 5,000/- as costs to the applicant because of the sufferings caused to him not as quantified damages but as a palliative measure. O.A stands allowed as above with costs of Rs.5,000/- to be paid to the applicant by the respondents.”

Part II: The intensive and extensive analysis of the issues behind transfers 

(Only a small portion of the enlightened analysis is reproduced here)

“This matter involves larger national interest of administrative hierarchy qua supremacy, responsibility and accountability and the relationship between the three arms of the State. It basically concerns the power and duty of discretion and exercise thereof.

In Mohambaram vs. Jayavelu _ reported in AIR 1970 Mad 63 at page 73, the Hon_ble High Court of Madras had made the following remarks: There is no such thing as absolute or untrammeled discretion, the nursery of despotic power, in a democracy based on the rule of law.

It is widely agreed that one reason for having constitutions is the need to restrict the exercise of power. Modern states are excessively powerful and are believed to have a monopoly of force and coercion. What if the institutions of such states fall into the wrong hands, who then abuse this power? Many believe that this is not just a hypothetical possibility but inherent in the exercise of power and therefore in the nature of states. Even if these institutions were created for our safety and well being they can easily turn against us. Experience of state power the world over shows that most states are prone to harming the interests of at least some individuals and groups. If so, we need to draw the rules of the game in such a way that this tendency of states is continuously checked. Constitutions provide the basis of rules and therefore prevent states from turning tyrannical. This traditional reason is not the only one supporting constitutions. The framers of our Constitution were deeply aware of three other reasons, two of which were already known but had been systematically underemphasized and a third which they themselves helped shape. Traditionally, constitutions were meant to control the power of the state so as to enable people to live decently. But this ideal presupposes an unbridgeable distance between people and the state. It assumes a powerless people who need the help of law to control state power. But what if people themselves have power? What if the power of the state comes from an original power that resides in the demos the people? Why then would we need constitutions? Democracy, it might be argued, is an alternative to constitutionalism. State power might be limited not by some higher law but by the power of the people. This is an attractive but flawed idea. It is flawed because in practice, power never really resides in all the people but largely in the majority. The tyranny of the non-democratic state of which individuals might be victims is replaced in democracies by the tyranny of the majority. If so, we need constitutions to check the tyranny of a majoritarian, democratic state. We need constitutions because they give us laws to protect not only individuals but also minority groups. Moreover, constitutions are required not only to protect vulnerable individuals and groups but virtually everyone against human vulnerability in general. It is important not to forget that human being are fallible, that they sometimes forget what is good for them in the long run, and they yield to temptations which bring them pleasure now but pain later. It is not unknown for people to acquire the mentality of the mob and act on the heat of the moment only to rue the consequences of the decision later. By providing a frame work of law culled over from years of collective experience and wisdom, constitutions prevent people from succumbing to currently fashionable whims and fancies. Constitutions anticipate and try to redress the excessively mercurial character of everyday politics. They made some dimensions of the political process beyond the challenge of ordinary politics. The framers of the Indian Constitution were familiar with each of these three reasons for having a constitution. They understood that constitutions are needed both to check state power and majority tyranny and also to control the destabilizing swings generated by popular passion. So far we have spoken of what constitutions dis-enable us from doing. However, constitutions also provide us with peaceful, democratic means with which to bring about profound social transformation. Moreover, for a hitherto colonized people, constitutions announce and embody the first real exercise of political self-determination. Nehru understood both these points well, The demand for a Constituent assembly, he claimed, represented a collective demand for full self determination, as only a Constituent Assembly of elected representative of the Indian people had the right to frame India’s Constitution, without external interference. Second, he argued, the Constituent Assembly is not just a body of people or a gathering of able lawyers. Rather, it is a nation on the move, throwing away the shell of its past political and possibly social structure, and fashioning for itself a new garment of its own making. The Indian Constitution was designed to break the shackles of traditional social hierarchies and to usher in a new era of freedom, equality, and justice. Inscribed in the intentions of the framers of the Indian Constitution was the potential of a breakthrough in constitutional theory; constitutions exist not only to disenable people in power but also to empower those who traditionally have been deprived of it. Constitutions give vulnerable people the power to achieve collective good.”

“Let me give two examples. The first is the relationship between individual and group rights. On the one hand, there is the view that political discourse in India is dominated by community rights. When the language of rights arrived in India and was adopted in an Indian context charged with strong community values, it got detached from its individualist moorings and was applied to communities. On the other hand, another view exists that a characteristically un-Indian Constitution imposed an individualist morality on a community-oriented Indian society and did not care even to recognize group rights. Does the Constitution prioritize individual rights or group rights? Even a cursory glance of the Constitution dispels both these misinterpretations. In India, both sets of rights were recognized and no clear guideline was provided for just when one is to override the other, and no general criteria were provided to resolve conflicts between the divergent types of rights. An attempt was made instead to balance them, with the scales tilting marginally in favour of individual rights. Thus, the seeming problem of a transfer of an individual is on closer inspection, a reflection of a Constitutional situation . Now; where and how do we, as citizens place ourselves? As uninterested spectators/or part of the matrix of concerned citizenry?. Regard must be had to the fact that concerned this is a project which will ultimately swallow up at least Rs. 25,000/- crores of national wealth in the long run.” (Emphasis supplied)

Part III: Complete text of the order of the Hon’ble Court

This order had been passed by the Hon’ble Central Administrative Tribunal, New Delhi on 06.05.2010 in O.A. 2799 of 2009 in A.K. Verma Vs. Union of India. Hon’ble Dr. K. B. Suresh was the Judicial Member.

For complete text, please visit:

http://indiankanoon.org/doc/143010752/