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Supreme Court of India
Union Of India vs Deepak Niranjan Nath Pandit on 7 February, 2020Author: Hon’Ble Dr. Chandrachud
Bench: Hon’Ble Dr. Chandrachud, Hon’Ble Ms. Malhotra
1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 1236 of 2020
(Arising out of SLP(C) No 1867 of 2020)
Union of India & Anr …. Appellant(s)
Versus
Deepak Niranjan Nath Pandit ….Respondent(s)
JUDGMENT
Dr Dhananjaya Y Chandrachud, J
1 Leave granted.
2 The respondent, who is an Assistant Commissioner of Customs, GST
and Central Excise was transferred from Mumbai to Bhubaneshwar on 5
September 2019. Challenging the order of transfer, the respondent moved
the Central Administrative Tribunal 1 in OA No 627 of 2019. By an order
dated 17 September 2019, the CAT granted an ad interim stay of the order
of transfer. Eventually, after the OA was heard, it was dismissed by the
CAT by an order dated 5 November 2019. Aggrieved by the order of the
CAT, the respondent moved the High Court of Judicature at Bombay. On
Signature Not Verified 11 November 2019, at the production stage, the High Court continued the
Digitally signed by
SANJAY KUMAR
Date: 2020.02.10
18:04:56 IST
Reason:
ad interim order. By the impugned judgment and order of the High Court
1“CAT”
2
dated 2 December 2019, the Writ Petition 2 under Article 226 of the
Constitution was admitted and by way of an interim order, the ad interim
direction granted on 11 November 2019 was continued. The Union of
India is in appeal.
3 The services of the respondent are transferable. The order of
transfer was issued by the Government of India in the Ministry of Finance
(Central Board of Indirect Taxes and Customs) on 5 September 2019. By
the order, five officials were transferred from their respective places of
posting. The respondent has, however, chosen to contest the order of
transfer and as a result of the ad interim order of the CAT and the interim
order of the High Court has not joined at the place of posting. In the
meantime, the respondent has been suspended.
4 The High Court, in interfering with the order of transfer, has relied on
two circumstances. Firstly, the High Court has noted that as a result of the
stay on the order of transfer, the headquarters of the respondent will
remain at Mumbai and even if he is to be suspended, his headquarters will
continue to remain at Mumbai. The second reason, which has weighed
with the High Court, is that the spouse of the respondent suffers from a
cardiac ailment and is obtaining medical treatment in Mumbai. In our view,
neither of these reasons can furnish a valid justification for the High Court
to take recourse to its extraordinary jurisdiction under Article 226 of the
Constitution in passing an order of injunction of this nature. Significantly,
the High Court has not even found a prima facie case to the effect that the
order of transfer was either mala fide or in breach of law. The High Court
2Writ Petition No 11669 of 2019
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could not have dictated to the employer as to where the respondent should
be posted during the period of suspension. Individual hardships are
matters for the Union of India, as an employer, to take a dispassionate
view. However, 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. We are constrained
to observe that the impugned order has been passed in breach of the
settled principles and precedents which have consistently been enunciated
and followed by this Court. The manner in which judicial power has been
exercised by the High Court to stall a lawful order of transfer is disquieting.
We express our disapproval.
5 Mr Manan Kumar Mishra, learned Senior Counsel urged that during
the course of an earlier hearing, the Union government expressed its
readiness to post the respondent at three alternative places instead of
Bhubaneswhar and hence the order of transfer may be modified. We
decline to allow this jurisdiction to be utilized in terrorem to compel the
Union government to post the respondent to a place which he may be
prefer. 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.
6 We accordingly allow the appeal and set aside the interim order of the
High Court dated 2 December 2019 staying the transfer. The interim order
passed by the High Court shall accordingly stand vacated. Conditional on
the respondent reporting at Bhubaneshwar within a period of one week
from today, he will be at liberty to make a representation to the Union of
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India in regard to his transfer. We make it clear that we are not making
any observations in this regard.
7 There shall be no order as to costs.
………………………….……………………..J.
[Dr Dhananjaya Y Chandrachud]
…..…..…….………..……………….………..J.
[Indu Malhotra]
New Delhi;
February 07, 2020
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