Central Administrative Tribunal - Chandigarh
Ms. Surinder Sidhoo, Ias vs Union Of India (Uoi) And Ors. on 30 July, 1999
JUDGMENT V.K. Majotra, Member (A)
1. The applicant is an IAS officer (Bihar : 1974) is presently on deputation with Govt. of Punjab. She single divorced mother of two children and is also a patient. Her father aged about 80 years suffers major surgical problems. Her mother aged about 70 years is under regular treatment for phychiatric problems. Her parents stay with her in Chandigarh. According to the applicant, both her parents and the applicant are inter-dependent upon one another for physical and moral support. It is 'unsafe and virtually impossible' for her as a single divorced lady to stay in Bihar, in view of adverse law and order situation there. She represented to the Central Govt. under Rule 5(2) of the Indian Administrative Service (Cadre) Rules, 1954 (hereinafter referred to as "1954 Rules"), requesting for change of cadre from the State of Bihar to the State of Punjab/ Haryana. However, despite her case being of extreme hardship, vide letter dated 16.6.97 (Annexure A-4), her request has been rejected. The applicant has challenged this order through this OA, alleging it to be bereft of reason, factually incorrect, discriminatory, against the principles of natural justice and violative of Article 14 of the Constitution of India. She has cited several cases of similarly situated IAs officers, wherein Govt. of India had ordered change of cadre, even though their cases did not involve as much hardship as the applicant's case.
2. Vide order dated 20th August, 1998, respondents were restrained from repatriating the applicant to the State of Bihar, till the next date of hearing. This order was extended from time to time. Applicant has sought the following reliefs :
(i) Order dated 6th June, 1997 (Annexure A-4) passed by respondent No. 3 be quashed ;
(ii) Respondent No. 1 be directed to change the cadre of the applicant from Bihar to Punjab, keeping in view the provisions of Rule 5(2) of the Indian Administrative Service Rules, 1954 and in accordance with the various instances quoted.
(iii) Without prejudice to the prayer No. (i) and (ii) above, the applicant further prays for the issuance of a direction to respondent No. 1 to favourably consider and decide the recommendations made by the State of Haryana for cadre change of the applicant from the State of Bihar to the State of Haryana.
3. In their written statement, respondent No. 3 - State of Haryana has admitted, having consented to the request for transfer of cadre of the applicant. Respondent No. 4 - State of Bihar vide their letters of 30.8.96 and 31.12.97 forwarded applicant's request of change of cadre to the Central Govt. for decision.
4. Respondent No. 2 in their written statement has admitted that it is a case of great hardship and difficulty and, therefore, applicant's representations for change of cadre were forwarded to Govt. of India with recommendations.
5. Respondent No. 1 has averred in his reply that a request for inter-cadre transfer is , considered by the Central Govt. with the concurrence of the State Govts. concerned under Rule 5(2) of the 1954 Rules. The applicant cannot claim inter-cadre transfer as a matter of right enforceable from a court of law. It falls within the administrative domain of the Govt. which exercises its powers under the extant policy on inter-cadre transfer, which came into existence from 1995 and thereafter, no IAS officer has been allowed inter cadre transfer on a ground other than marriage to an officer of All India Service. Special dispensation allowed for women IAS officers working in North-East and Jammu and Kashmir States in view of special law and order situation obtaining in those areas, too has been withdrawn after accommodating a single lady officer of 1994 batch. The applicant has failed to establish a good case and any enforceable legal right to claim inter cadre transfer. Applicant has filed a rejoinder as well.
6. Learned Counsel for the parties were heard and the record before us perused.
7. It is relevant to reproduce here Rule 5(2) of the 1954 Rules. It reads : "Rule 5--Allocation of Members to various cadres :
(1) The allocation of cadre officers to the various cadres shall be made by the Central Government in consultation with the State Government of the State Government concerned. .
(2) The Central Government may, with the concurrence of the State Government concerned, transfer a cadre officer from one cadre to another cadre".
Govt. of India, vide their letter dated 31.7.98/5.8.98, communicated to the Govt. of Punjab the extant cadre transfer policy (A-26), which reads as follows :
"Inter-cadre transfers will continue to be permitted only for members of All India Service officers on marriage to another member of an All India Service.
Cadre transfers shall not be permitted to All India Service Officers on marriage to an officer serving in a Central Service/State Service/Public Sector Undertaking/any other organisation.
Generally no cadre transfer should be permitted on medical grounds/personal reasons. However, for extreme hardship cases, the following criteria shall be applied before considering and deciding on the request for cadre change :
(i) the nature of the problem(s) to be assessed by Govt. of India in each case, on merits; and
(ii) the problem should be of such a nature that inter-cadre deputation will not solve the officer's problems.
All requests for inter-cadre transfers will be approved by the Minister-in-charge i.e. MOS(PP) in the case of IAS officers, Home Minister in the,case of IPS Officers and Minister of Environment & Forest in the case of IPS officers, in the first instance. Thereafter all such requests for inter-cadre transfer shall be processed and submitted for the orders of the Appointment Committee of the cabinet."
8. Rule 5 (2) read with extant inter cadre transfer policy, requires consultation by the Central Govt. with the concerned State Govts. Central Govt. is the competent authority to decide the cases involving extreme hardship; they will assess the nature of problem on merit and see whether the problem is of such a nature that inter-cadre deputation does not solve the officer's problem. The present case, therefore, is to be evaluated in the light of Rule 5(2) and the inter-cadre transfer policy made thereunder.
9. Learned Counsel for the applicant has assailed the contention of respondent No. 1, expressed in Annexure A-4 that the matter is not covered under the policy and, therefore, the same could not be acceded to. According to him, applicant who herself is a heart patient, has also to look after her aged parents aged 70 and 80 years, who are also suffering from serious ailments. Her case is definitely of 'extreme hardship' and realising it, the State Govts. of Bihar, Punjab/Haryana, have consented for transfer of her cadre. Even the Central Govt. had sent her on deputation to the State of Punjab after considering her problems. Learned Counsel has mentioned the case of Shri R. N. Gupta, IAS, who was allowed change of cadre from West Bengal to Punjab in 1992 on the basis of a request made by his mother, who had medical problems, and that of Sh. Sunil Porwal, who was allowed change of cadre from Bihar to the State of Maharashtra on compassionate grounds. Certain othercases were also cited. It has been contended that denying sympathetic consideration in acase of greater hardship than anyone of the cases cited by the applicant is against the principles of natural justice and violative of Article 14 of the Constitution of India. In support of his contention, he has cited the following cases:
(1) Sengara Singh and Ors. v. State of Punjab and Ors., 1983(3) SLR 685. (2) T. Ghanshyam v. Govt. of A.P. and Ors., 1997(8) SLJ 463. (3) The Manager, Govt. Branch Press and Anr. v. D.B. Belliapa, 1979(1) SLR 351=1979 SLJ 233 (SC).
Learned Counsel for the applicant also contended that although the applicant's case is covered under the policy framed by the respondents, yet her request for inter-cadre transfer has been rejected, stating in Annexure A-4 that it is not "covered under the policy."
10. According to the learned Counsel for respondent No. 1, the cases where the Central Govt. had effected inter-cadre transfer on compassionate grounds or personal hardships pertain to the period before 1995, and that is before the extant policy came into existence. He also cited Union of India and Ors. v. Rajiv Yadav, IAS and Ors., 1994(6) SCC 38=1995(1) SLJ 13 (SC), and order dated 23.9.94 of the C.A.T. Hyderabad Bench in the case of "A P. Rao, IAS v. UOI, as also order dated 30.7.98 of the Madras Bench in the case of "Dr. Beela Venkatesan, IAS v. UOF, stating that the applicant has no right to claim allocation to a State of his choice or to his Home State, and that allotment of cadre is an incidence of service and a Member of an All India Service has a liability to serve in any part of India.
11. As per Rule 5 of the 1954 Rules, allocation of IAS officers to various cadres is made by the Central Govt. in consultation with the State Govt. or the State Govts. concerned. Sub-rule (2) of Rule 5 of the 1954 Rules empowers the Central Govt. to transfer the cadre of an IAS officer from one State to another. On the basis of this sub-rule, respondent No. 1 has issued cadre transfer policy which was communicated vide letter dated 31.7.98/5.8.98. Under this policy, generally cadre transfer is not permitted on medical grounds or personal reasons. However, cadre transfers are permitted on the ground of extreme hardship. The term 'extreme hardship' used in Annexure A-26, has not been defined or explained anywhere. Left as it is, it leaves the competent authority, the Govt. of India with unguided and unfettered powers to interpret it from one case to another. In the case of Shri R.N. Gupta, mentioned by the applicant in the OA, which fact is not disputed by the respondents in their reply, the mother of the IAS officer being unwell and a mention that for her good health, living in Chandigarh town only was suitable; separation of the Govt. servant from his mother appears to have been taken as acase of hardship in his family life. There are other examples given by the applicant in the OA, but we need not go into details of all. The applicant has mentioned the factors like her being a heart patient, her father aged 80 years suffering from major surgical problems; her mother getting regular treatment from the Department of Psychiatry etc. to bring her case under the scope of 'extreme hardship' as mentioned in Annexure A-26. To one person, any one of these factors can be sufficient to bring a case of Govt. officer under the meaning of 'extreme hardship', while to another, even the utmost extreme hardship may appear to be trivial. In legal parlance, however, a legal fiction is created where everything is tested on the basis of what is known as a rational human being. The law always calls upon the court and the competent authorities to consider what a rational human being would consider in the given circumstances and factors a case falling under the scope of the term 'extreme hardship', Since this discretion is also vested in Govt of India, we would not express our opinion one way or the other, except observing that in lesser cases favourable view was taken by Govt. of India before 1995. We are, however, quite clear that the case of the applicant squarely falls under the policy guidelines as given in Annexure A-26 and it has been wrongly observed in the impugned order that the case does not fall under the said policy guidelines. In our opinion, Govt. of India is required to take a view afresh, considering all the factors mentioned above and the factors mentioned by the applicant to record a finding as to whether her case falls under the term 'extreme hardship' as given in Annexure 26.
12. It appears that the Govt. of India had allowed the applicant to go on deputation with the Punjab Govt. after considering her problems enumerated above. Surely, the nature of the problem is such that her short term of deputation has not solved them, rather the situation seems to have aggravated further. It is perhaps after realising the magnitude of her problem that the State Govts. of Bihar and Punjab/Haryana have consented for her inter-cadre transfer.
13. Learned Counsel for the respondents stated that the Govt. of India have not allowed any inter-cadre transfers after 1995. Even if that be so, the respondents are having a definite policy under the Rules, which has yet not been changed, and there is no bar to consider the subsequent deserving cases. It may incidentally be pointed out that the applicant had been making representations prior to 1995, but the same have remained unanswered till the impugned order Annexure A-4 was communicated.
14. In view of above discussion, we feel that the request of the applicant falls within the scope of the policy guidelines, Annexure 26, and the same has not been considered in its true perspective. Accordingly, the impugned order dated 28.7.97 (A-4) is hereby quashed and respondent No. 1 is directed to consider the case of the applicant afresh. This be done within a period of two months from today. Till then, the respondents will not repatriate the applicant to her parent State of Bihar.
No costs.