Holding

The Court held that the employees were deemed deputed to Prasar Bharati, giving the Corporation the power to transfer them, and that the transfer orders were valid and not arbitrary.

Summary

The Supreme Court examined whether Prasar Bharati could transfer staff originally appointed by Doordarshan and Akashvani despite the absence of a formal deputation order under the Prasar Bharati Act, 1990. The Court observed that the employees had been working under the Corporation’s control, receiving its salary and obeying its hierarchy, thereby constituting a deemed deputation. Consequently, the Corporation possessed an inherent power to transfer these employees and the transfer orders were not arbitrary or irrational. The Court distinguished between transfer and deputation and held that, in the peculiar facts, the functional test established the employer-employee relationship with Prasar Bharati. Finally, exercising its jurisdiction under Article 142, the Court directed the Union of India to decide the pending Section 11 issue within six months and allowed the appeals.

Issues considered

Whether Prasar Bharati has the power to transfer employees of Doordarshan and Akashvani who remain Central Government employees in the absence of a formal deputation order.
Whether the employees are deemed deputed to Prasar Bharati and thus subject to its control and service rules.
Whether the transfer orders issued by Prasar Bharati are arbitrary, irrational or violative of service law.
Whether the Union of India must exercise its statutory function under Section 11 of the Prasar Bharati Act within a stipulated period.
How the distinction between ‘transfer’ and ‘deputation’ applies to the present factual matrix.

Legislation cited

Constitution of Indias. Article 142, s. Article 235, s. Article 309
Industrial Disputes Act
Industrial Employment (Standing Orders) Act, 1946
Prasar Bharati (Broadcasting Corporation of India) Act, 1990s. 1(1), s. 11(1), s. 11(5), s. 12, s. 4, s. 5

Subjects

Prasar Bharati Acttransfer of employeesdeputationcontrolservice lawArticle 142Section 11Central Government employeesadministrative lawemployment law

Judgment

A PRASAR BHARA TI
v.
AMARJEET SINGH AND ORS.

FEBRUARY 2, 2007

B [S.B. SINHA AND MARKANDEY KA TJU, JJ.]

Service Law:

Prasar Bharati (Broadcasting Corporation of India) Act, 1990-ss. l l (1)
C and (5)-Transfer of employees serving in Akashwani & Doordarshan to the
appellant-Corporation-No formal order of deputation passed-Corporation
passed orders of transfer of staff on pretext of optimally utilizing manpower
to make every Station and Kendra fully functional-Legality of transfer
orders challenged-Held: indisputably employees working with Corporation
D for a long time without any demur-They being paid salaries and other
remuneration by Corporation and subjected to effective control by its ofjicers-
Hence, by reasons of conduct of employees as well as Union of India and
Corporation, they are deemed to be deputed in services of Corporation and
governed by general principles of deputation, which in peculiar facts and
circumstances of case, would imply that Corporation had power of transfer-
E The action taken by Corporation in transferring the employees was not
arbitrary or irrational as the same was in the interest of administration
and with a view to carry on its functions-Further, the rights of employee
cannot be allowed to remain uncertain for a long time, thus in exercise of
jurisdiction under Art. 142, under Union of India directed to take firm
p decision u!s. 11(1)-- Constitution of India, 1950-Arts.235, 142. 'f-.

Words and Phrases: 'Transfer' and 'Deputation'-Distinction between-
Discussed

Respondents were employees of 'Doordarshan' and 'Akashwani'.
G ·Prasar Bharati (Broadcasting Corporation of India) was established by
promulgation of Prasar Bharati (Broadcasting Corporation oflndia) Act, 1990.
S.11(1) of the Act provides that it shall be lawful for the Central Government
to transfer to the Corporation any of the officers or other employees serving
in the Akashvani and Doordarshan and engaged in the performance of those
functions, where the Central Government has ceased to perform the functions.
H 160
/
PRASAR BHARA Tl v. AMARJEET SINGH 161
S.11(5) provided that every officer/employee transferred by order under A
s.15(1) would within 6 months from date of transfer exercise his option to be
governed by condition enumerated therein and once transferred to the
Corporation, they cease to be employees of Central Government and would
become employees of Corporation.

However, no order of deputation in respect of any of the employees or B
officers of the Doordarshan or Akashvani was passed. The officers and
employees of erstwhile Akashvani and Doordarshan, however, continued to
l work with the Corporation. They drew their salaries and other remunerations.
The same terms and conditions of their services were continued to apply to
them as if they were the Central Government employees.
c
The Corporation passed orders of transfer of the operational and
administrative staff on the ground of optimizing the manpower available so as
to make every station and kendra fully functional. Aggrieved Respondents
successfully challenged the legality of orders of transfer before CAT.
Appellant filed writ petition which was dismissed by the High Court. D
In these appeals the question for consideration is whether in the
peculiar facts of the case, the Corporation had power to transfer the employees
who althc.ugh were working in its establishment but continued to be the
employees of the Central Government.
E
Allowing the appeals, the Court

HELD: 1. This case raises practical problems which is the creation of
Union of India and the appellants. It is difficult to comprehend as to why the
Union of India did not exercise its statutory functions for such a long time. It
was obliged to take a decision one way or the other. It was for the Union of F
India to transfer the officers or employees of the Doordarshan and Akashvani
to the Corporation. In such an event, the employees could have exercised their
option as envisaged under sub-section (5) of s.11 of the Act. The transfer of
an employee deputed under s.l 1(1) is that of a permanent nature. So long an
order under sub-section (1) is not passed, the employees and officers would G
continue to be the employees of the Central Government. They shall unless
otherwise an order is passed would be governed by the terms and conditions
of services evidenced by the rules framed by the President of India under
proviso appended to Article 309 of the Constitution oflndia. Indisputably, no
such order having been passed, the respondents continued to be the employees
of the Central Government. [Para 12) (168-E-G) H
162 SUPREME COURT REPORTS (2007) 2 S.C.R.

A 2. There exists a distinction between 'transfer' and 'deputation'.
'Deputation' connotes service outside the cadre or outside the parent
department in which an employee is serving. 'Transfer', however, is limited
to equivalent post in the same cadre and in the same department. Whereas
deputation would be a temporary phenomenon, transfer being antithesis must
B exhibit the opposite indications. Ordinarily no employee can be transferred
without his consent from one employer to another. A transfer of an employee
may be governed by the provisions of a statute or the terms and conditions of
a contract of service. [Paras 13, 14, 15) [169-A-D]

Jawaharlal Nehru University v. Dr. KS Jawatkar and Ors., [1989] Supp.
c (1) sec 679, referred to.

3. The situation as obtaining in the present case, however, would amount
to be a case of deemed deputation. It is true that no order has been passed by
the Central Government on this behalf, but the respondents acted in the
manner as if such an order had been passed. The respondents have been
D working with the Corporation for a long time without any demur whatsoever.
They are undoubtedly under the control and supervision of the officers of the
Corporation. There exists a hierarchy of the officers in the Corporation.
There are a large number of departments. Each department has separate
functions. Work of one department, however, would be related to another.
E [Para 161 [169-D-El

4.1. The functions of the Central Government has been taken over by
the Corporation in terms of s. 12 of the Act, when the Corporation has started
functioning from the appointed day. It requires man-power for managing its
affairs. It has been doing so with the existing staff. They are being paid
F their salaries or other remunerations by the Corporation. They are subjected
to effective control by its officers. The respondents, for all intent and purposes,
are therefore, under the control of the Corporation. The expression 'control',
although is not defined, in the light of Article 235 of the Constitution of
India, has been held to be conferring wide power upon the High Court.
[Paras 17, 19] (169-F-G; 170-C-D]
G
State of West Bengal v. Nripendranath Bagchi, AIR (1966) SC 447,
Madan Mohan Choudhary v. State of Bihar and Ors., (1999] 3 SCC 396;
Yoginath D. Bagde v. State of Maharashtra and Anr., [1999] 7 SCC 739 and
High Court of Judicature for Rajasthan v. Ramesh Chand Paliwal and Anr.,
AIR (1998) SC 1079, relied on.
H
PRASAR BHARAT! v. AMARJEET SINGH 163

Zee Tele.films Ltd. and Anr. v. Union of India and Ors., 120051 4 sec A
649, referred to.

4.2. The concept of control implies that the controlling officer must be
in a position to dominate the affairs of its subordinate. It is unless otherwise
defined would be synonymous with superintendence, management or authority
to direct, restrict or regulate. It is exercised by a superior authority in B
exercise of its supervisory power. It may amount to an effective control, which
may either be de facto or rem.ote. jPara 20] 1170-E]

5.1. The Corporation has not framed its own rules. In absence of any
rules, however, an employer, would have an inherent power to deal with its
employees. In a situation of this nature, the same would include a power of C
transfer. It is one thing to say that an employer does not possess of any power
to transfer in terms of the extant rules or conditions of service or the nature
thereof; but the same does not mean that the employer must have the power to
transfer its employees only in terms ofa statute. IPara 2111170-F-G]

5.2. The position of an industrial workman, however, would stand on a D
different footing. The terms and conditions of industrial employees are
governed by the provisions of the Industrial Disputes Act or the certified
standing orders framed under the Industrial Employment (Standing Orders)
Act, 1946. jPara 22] 1170-H]

B. Vandana Rao v. State of Karnataka and Anr., 11986] 4 SCC 624; E
Abani Kanta Ray v. State of Orissa, 119951 Supp. 4 SCC 169 and Kendriya
Vidyalaya Sangathan v. Damodar Prasad Pandey and Ors., 12004] 12 SCC
299, relied on.

Public Services Tribunal Bar Association v. State of U.P. and Anr., [2003] F
_J,- 4 SCC 104 and Ba/co Employees' Union (Regd.) v. Union of India and Ors.,
[2002] 2 sec 333, referred to.

6. Respondents, therefore, by reason of their conduct as also that of the
Union of India and Corporation must be held to have been deputed in the
services of the Corporation. They would, therefore, be governed by the general G
principles of deputation. For the said purpose they are under the functional
control of the Corporation which in the peculiar facts and circumstances of
this case, would also imply that the Corporation had a power of transfer.
Functional test, as is well-known, is also employed for the purpose of
determining the relationship of the employer and employees. [Paras 26, 27]
1172-A-C] H
164 SUPREME COURT REPORTS [2007) 2 S.C.R.

A Workmen ofNiligiri Cooperative Marketing Society ltd. v. State of Tamil
Nadu and Ors., (2004] 3 SCC 514 and District Rehabilitation Officer and
Ors. v. Jay Kishore Maity and Ors., (2006( I I SCALE 545, relied on.

7. The action taken by the appellants in transferring the respondents
is not arbitrary or irrational. The orders of transfer have been passed in the
B interest of the administration and with a view to carry on its functions. The
High Court was not correct in opining that the respondents could not be
transferred by the Corporation. (Paras 28, 29) (172-D-E(

8. The question as to whether the Central Government should pass an
C order in terms of sub-section (I) of S.ll of the Act or not is pending
consideration before its highest authority for a long time. No decision has
been taken for more than nine long years. Despite observations made by this
Court, the Central Government has failed and/or neglected to take a decision
one way or the other. Ordinarily, this Court would not have issued a directiOt!
but the present state of affairs cannot be permitted to continue. The rights of
D the respondents cannot be allowed to remain in uncertain position for a long
time. In the exercise of jurisdiction under Article 142 of the Constitution,
the Union of India is directed to take a firm decision in terms of S. I l'Of the
Act within six months from date. The Secretary, Department of Personnel
and Training shall file an affidavit before this Court within or immediately
after the expiry of the aforementioned period. (Paras 31, 32( (172-F-H; 173-A]
E
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3244 of2002.

From the final Judgment and Order dated 27.7.2001 of the High Court
of Punjab and Haryana at Chandigarh in C.W.P. No. I 0950-CAT/2001.

F WITH

C.A. Nos. 3245-3248 of2002 and 432/2007.

Vikas Singh, A.S.G., Rajeev Sharma, Ashok Bhan, Shiva Lakshmi, Arnita
Narayan, V.K. Verma, Gopal Dutta, Sanjeev Sharma, Prashant Chaudhary, Sudhir
G Nandrajog, Ashoka Kumar Thakur, Anil K. Chopra, B.V. Deepak (for T.T.K.
Deepak & Co.) and Praveen Swarup for the Appearing parties.

The Judgment of the Court was deliverd by

S.B. SINHA, J. I. Leave granted in the S.L.P.
H
J-
PRASAR BHARA TI v. AMARJEET SINGH [S.B. SINHA, J.] 165
r 2. Respondents herein were appointed by the 'Doordarshan' and A
'Akashvani'. Parliament enacted the Prasar Bharati (Broadcasting Corporation
. of India) Act, 1990 (for short, 'the Act') to provide for the estab!ishment of
a Broadcasting Corporation for India, to be known as Prasar Bharati, to
define its composition, functions and powers and to provide for matters
connected therewith or incidental thereto. The said Act though came into
force on and from 15.09.1997, Prasar Bharati (Broadcasting Corporation of B
India) (for short, 'the Corporation') came to be established 23.11.1997, the
date on which the 'Appointed day' was notified in terms of Section 3 of the
-t-- · Act. Section 11 of the Act provides that it shall be lawful for the Central
Government to transfer to the Corporation any of the officers or other employees
serving in the Akashvani and Doordarshan and engaged in the performance C
of those functions, where the Central Government has ceased to perform the
functions which in terms of Section 12 are the functions of the Corporation.
Sub-section (5) of Section 11 of the Act, however, provides that every officer
or other employee transferred by an order made under sub-section (I) shall,
within six months from the date of transfer, exercise his option, in writing, to
be governed by the conditions enumerated therein and such option once D
exercised under the Act shall be final. However, once the services of the
officers or employees of Akashvani and Doordarshan are transferred to the
-!. Corporation, sub-section (4) of Section 11 would be attracted which is in the
following terms :

"(4) An officer or other employee transferred by an order under
E
sub-section (I) shall, on and from the date of transfer, cease to be an
employee of the Central Government and become an employee of the
Corporation with such designation as the Corporation may determine
and shall, subject to the provisions of sub-sections (5) and (6), be
_ _\ governed by such regulations as may be made as respects F
remuneration and other conditions of service including pension, leave
and provident fund shall continue to be an officer or other employee
of the Corporation unless and until his employment is terminated by
the Corporation."

3. No order of deputation in respect of any of the employees or officers G
of the Doordarshan or Akashvani had also been passed. The officers and
employees of erstwhile Akashvani and Doordarshan, however, continued to
work with the Corporation. They drew their salaries and other remunerations.
The same terms and conditions of their services were continued to apply to
H
166 SUPREME COURT REPORTS (2007] 2 S.C.R.

' A them as if they were the Central Government employees.
4. The Corporation passed orders of transfer of the operational and
administrative staff. Allegedly, such transfers were made with a view to
optimize the use of man-power available with the Corporation so that every
Station and Kendra became fully functional. The legality and/or validity of
B the said orders of transfer were questioned before the Central Administrative
Tribunal, Chandigarh Bench, Chandigarh, by the respondents herein on or
about 07.09.2000 which was marked as 0.A. No.725/PB/2000. By ajudgment
and order dated 06.10.2000, the orders of transfer were quashed relying, inter
alia, on an earlier decision of the Tribunal in S.P. Kohli v. Union ofIndia and
C Ors., The writ petition filed by the appellants herein for quashing the said
order of the Central Administrative Tribunal has been dismissed by a Division
Bench of the Punjab and Haryana Higu Court by reason of the impugned
judgment.

5. At the very outset, it may be noticed that a Division Bench of this
D Court by an order dated 29.03.2005 noticed the unsatisfactory state of affairs
prevailing in the matter as the Central Government employees who had been
working in Akashvani Stations and Doordarshan Kendras continued to work
in the Prasar Bharati for nearly eight years stating :

" ..... Prima facie, this uncertainty has continued since appropriate
E steps were not undertaken eith!!r by the Central Government or by the
Corporation. The Corporation has not framed requisite regulations.
The option of the employees under the provisions of the Act has
not been taken. In fact, that occasion has not arisen even after eight
years of operation of the Act on account of a wholly ad hoc approach
adopted in the implementation of the Act. At this stage, it is not
F necessary to specifically indicate as to who has contributed more to
this state of affair resulting in two views being expressed by two
High Courts in the country - one by the Madras High Court holding
that the employees can be transferred and the other by the Punjab
& Haryana High Court holding in favour of the employees that they
G cannot be transferred by the Corporation. The stand of the Corporation
has been and is that the employees continue to be the employees of
the Central Government. It is in the interest of neither the employees
nor the Central Government nor the Corporation to continue the
uncertainty for any further period of time.

H
PRASAR BHARATl v. AMARJEET SINGH [S.B. SINHA, J.] 167

-}
Let the learned Solicitor General discuss the matter with the A
concerned officers of the Corporation and the Ministry oflnformation
and Broadcasting so that the Act can be properly implemented and
uncertainty comes to an end. We hope that the matter would be
resolved expeditiously."

6. Disputes and differences between the parties were said to have B
received consideration at the highest level in the Government, namely, a
Group of Ministers. Although the Corporation had forwarded a draft note for
consideration of the Group of Ministers in regard to the restructuring of
Prasar Bharati, no final decision admittedly has yet been taken. This Court
adjourned the matter times without number so that the Union of India and C
Prasad Bharati can arrive at a decision but the same is yet to come. By an
order dated 21.11.2006, this Court refused to grant any further time. However,
having regard to the fact that the Union of India should be heard in the matter,
on an oral application made by the learned Additional Solicitor General, the
Union of India was impleaded as a party.
D
7. The short question which arises for consideration is as to whether
in the peculiar situation obtaining in the matter, the Corporation can be said
to have any power of transfer of the employees who although are working
-! in its establishment, but continue to be the employees of the Central
Government.
E
8. Before adverting to the question raised in these appeals, we may
notice that whereas the Central Administrative Tribunal, Chandigarh as also
the Punjab & Haryana High Court were of the opinion that no such power
existed, the Madras High Court has taken a different view.

9. The Division Bench of the High Court in its impugned judgment F
posed a question as to whether the officers/employees of the Central
Government employed under the Directorate of the Doordarshan could be
deemed to have become officers/employees of the Corporation by virtue of
the provisions of the said Act. As would appear from the discussions made
hereinafter, the said question was wholly irrelevant. G
I0. The High Court relied upon a large number of decisions of this Court
as also other High Courts to arrive a finding that the respondents were not
the employees appointed in the services of the Corporation by transfer and,
-.. thus, their service conditions cannot be controlled or regulated by its authorities.
<.'
H
168 SUPREME COURT REPORTS (2007] 2 S.C.R.

A It was held :
"We have given serious thought to the arguments of the learned
counsel, but have not felt persuaded to agree with him that the
impugned order is vitiated by any such legal infirmity which may
warrant issuance of a writ in the nature of certiorari. A careful reading
B of the averments made in the writ petition and the two letters relied
upon by Shri Sanjay Goyal shows that even as per the Central
Government, the employees working in AIR and Doordarshan Kendras
immediately before the formation of the Corporation continued to be
its employees because no order transferring their services was passed
by it in terms of Section 11 of the Act. Therefore, it is not possible
c to accept the argument of Shri Goyal that with the creation of the
Corporation, the services of respondent no. I stood transferred to the
Corporation and the competent authority of the Corporation could
transfer her from one place to the other."

D 11. The decision of the Madras High Court was not followed on the
aforementioned premise.

12. This case raises practical problems which is the creation of Union
of India and the appellants. It is difficult for us to comprehend as to why
the Union of India did not exercise its statutory functions for such a long
E time. It was, in our opinion, obliged to take a decision one way or the other.
It was for the Union of India to transfer the officers or employees of the
Doordarshan and Akashvani to the Corporation. In such an event, the
employees could have exercised their option as envisaged under sub-section
(5) of Section 11 of the Act. The consequences of passing of an order under
F sub-section (I) of Section 11, as noticed hereinbefore, are provided for under
sub-section (4) thereof. The transfer of an employee deputed under sub-
section (I) of Section I I is that of a permanent nature. So long an order
under sub-section (I) is not passed, indisputably the employees and officers
would continue to be the employees of the Central Government. They shall
unless otherwise an order is passed would be governed by the terms and
G conditions of services evidenced by the rules framed by the President of India
under proviso appended to Article 309 of the Constitution of India.
Indisputably, no such order having been passed, the respondents continued
to be the employees of the Central Government. However, there cannot be
any doubt whatsoever that the services of the respondents have been placed
at the disposal of the Corporation although no order of deputation has been
H
- _j __

PRASAR BHARA Tl v. AMARJEET SINGH [S.B. SINHA, J.] 169

-}
passed. A
13. There exists a distinction between 'transfer' and 'deputation'.
'Deputation' connotes service outside the cadre or outside the parent
department in which an;employee is_serving. 'Transfer', however, is limited
to equivalent post in the same cadre and in the same department. Whereas
deputation would be a temporary phenomenon, transfer being antithesis B
must exhibit the opposite indications.
1

14. There cannot be any doubt whatsoever that ordinarily no employee
can be transferred without his consent from one employer to another. [See
Jawaharlal Nehru University v. Dr. K.S. Jawatkar and Ors., [1989] Supp. I
SCC 679]. But, the said principle has no application in the instant case. C

15. A transfer of an employee may be governed by the provisions of
a statute or the terms and conditions of a contract of service.

16. The situation. as obtaining in the present case, however, in our D
opinion, would amount to be a case of deemed deputation. It is true that
no order has been passed by the Central Government on this behalf, but the
respondents acted in the manner as if such an order had been passed. The
respondents have been working with the Corporation for a long time without
any demur whatsoever. They are undoubtedly under the control and E
supervision of the officers of the Corporation. There exists a hierarchy of the
officers in the Corporation. There are a large number of departments. Each
department has separate functions. Work of one department, however, would
be related to another.

17. It has not been disputed that the functions of the Central Government F
has been taken over by the Corporation in terms of Section 12 of the Act,
when the Corporation has started functioning on and from the appointed day.
It requires man-power for managing its affairs. It has been doirig so with the
existing staff. They are being paid their salaries or other remunerations by
the Corporation. They are subjected to effective control by its officers. The G
respondents , for all intent and purposes, are therefore, under the control of
the Corporation.

18. In Zee Telefi/ms Ltd and Anr. v. Union of India and Ors., [2005] 4
sec 649, it was noticed :
H
170 SUPREME COURT REPORTS (2007] 2 S.C.R.

A "The word 'control' has been defined in Black's Law Dictionary
in the following terms:

"Control.- Power or authority to manage, direct, superintend,
restrict, regulate, govern, administer or oversee."

In Bank of New South Wales v. Common Wealth, [76 CLR !),
B Dixon, J., observed that the word 'control' is 'an unfortunate word of
such wide and ambiguous import that it has been taken to mean
something weaker than 'restraint', something equivalent to 'regulation'.
Having regard to the purport and object of the Board, its control over
'cricket' must be held to be of wide amplitude."
c 19. The expression 'control', although is not defined, in the light of
Article 235 of the Constitution oflndia, has been held to be conferring wide
power upon the High Court. [See State of West Bengal v. Nripendranath
Bagchi, AIR (1966) SC 447, Madan Mohan Choudhary v. State of Bihar and
Ors., [1999) 3 SCC 396, Yoginath D. Bagde v. State ofMaharashtra and Anr.,
D [1999) 7 SCC 739 and High Court of Judicature for Rajasthan v. Ramesh
Chand Paliwal and Anr., AIR (1998) SC 1079).

20. The concept of control implies that the controlling officer must be
in a position to dominate the affairs of its subordinate. It is unless otherwise
defined would be synonymous with superintendence, management or authority
E to direct, restrict or regulate. It is exercised by a superior authority in exercise
of its supervisory power. It may amount to an effective control, which may
either be de facto or remote.

21. The Corporation has not framed its own rules. In absence of any
F rules, however, an employer, it is well-known, would have an inherent power
to deal with its employees. In a situation of this nature, we have no doubt Jo.-
that the same would include a power of transfer. It is one thing to say that
an employer does not possess of any power to transfer in terms of the extant
rules or conditions of service or the nature thereof; but the same does not
mean that the employer must have the power to transfer its employees only
G in terms of a statute.

22. The position of an industrial workman, however, would stand on a
different footing. The terms and conditions of industrial employees are
governed by the provisions of the Industrial Disputes Act or the certified
standing orders framed under the Industrial Employment (Standing Orders)
H
)

PRASARBHARATI v. AMARJEET SINGH [S.B. SINHA, J.) 171

Act, 1946. A
23. An establishment like the Corporation, moreover, in absence of the
rules may have an implied power of transfer. Transfer is an ordinary incident
of service. It does not result in alteration of any condition of service to its
disadvantage. [See B. Vandana Rao v. State of Karnataka and Anr., [1986]
4 sec 624, Abani Kanta Ray v. State ofOrissa, [1995) Supp. 4 sec 169 and B
Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey and Ors., [2004)
12 sec 299).

24. In Public Services Tribunal Bar Association v. State of U.P. and
Anr., [2003) 4 SCC I 04, this Court observed :
c
"3 7. Transfer is an incident of service and is made in administrative
exigencies. Normally it is not to be interfered with by the courts. This
Court consistently has been taking a view that orders of transfer
should not be interfered with except in ra·e cases where the transfer
has been made in a vindictive manner."
D
25. In Ba/co Employees' Union (Regd.) v. Union of India and Ors.,
[2002) 2 SCC 333, this Court opined that in case of policy, the employees may
suffer to certain extent, but such sufferings should be taken to be incidence
of service. Therein, the court observed :

"48. Merely because the workmen may have protection of Articles E
14 and 16 of the Constitution, by regarding BALCO as a State, it does
not mean that the erstwhile sole shareholder viz. Government had to
give the workers prior notice of hearing before deciding to disinvest.
There is no principle of natural justice which requires prior notice and
hearing to persons who are generally affected as a class by an economic F
policy decision of the Government. If the abolition of a post pursuant
to a policy decision does not attract the provisions of Article 311 of
the Constitution as held in State of Haryana v. Des Raj Sangar on
the same parity of reasoning, the policy of disinvestment cannot be
faulted if as a result thereof the employees lose their rights or protection
under Articles 14 and 16 of the Constitution. In other words, the G
existence of rights of protection under Articles 14 and 16 of the
Constitution cannot possibly have the effect of vetoing the
Governments right to disinvest.. ... "

H
172 SUPREME COURT REPORTS (2007) 2 S.C.R.

A 26. Respondents, therefore, in our opinion by reason of their conduct
as also that of other players in the field, namely, the Union of India and
Corporation must be held to have been deputed in the services of the
Corporation. They would, therefore, be governed by the general principles
of deputation. For the said purpose they are under the functional control of
the Corporation which in the peculiar facts and circumstances of this case,
B in our opinion, would also imply that the Corporation had a power of transfer.

27. Functional test, as is well-known, is also employed for the purpose
of determining the relationship of the employer and employees. [See Workmen
of Niligiri Cooperative Marketing Society Ltd. v. State of Tamil Nadu and
C Ors., [2004] 3 SCC 514 and District Rehabilitation Officer and Ors. v. Jay
Kishore Maity and Ors., [2006] 11 SCALE 545].

28. We do not find that the action taken by the appellants herein in
transferring the respondents is in any way arbitrary or irrational. The orders
of transfer have been passed in the interest of the administration and with
D a view to carry on its functions.

29. We, 1herefore, are of the opinion that the High Court was not correct
in opining that the respondents could not be transferred by the Corporation.

30. We would, however, before parting with the case, in exercise of our
E jurisdiction under Article 142 of the Constitution of India issue a direction
upon the Union of India. We have noticed hereinbefore that the Union of
India itself had been filing writ petitions before the different High Courts. It
did not do so in the instant case. It had to be impleaded as a party
respondent.

F 31. We have furthermore noticed hereinbefore that the question as to
whether the Central Government should pass an order in terms of sub-section \.->
(I) of Section 11 of the Act or not is pending consideration before its highest
authority fora long time. No decision has been taken for more than nine long
years. Despite observations made by this Court, the Central Government has
G failed and/or neglected to take a decision one way or the other. Ordinarily,
this Court would not have issued a direction but the present state of affairs
cannot be permitted to continue. The rights of the respondents cannot be
allowed to remain in uncertain position for a long time.

32. We, therefore, while allowing the appeal, direct the Union of India
H to take a firm decision in terms of Section 11 of the Act within six months
PRASAR BHARATl v. AMARJEET SINGH [S.B. SINHA, J.] 173
from date. The Secretary, Department of Personnel and Training shall file an A
·' affidavit before this Court within or immediately after the expiry of the
aforementioned period.

33. Subject to the directions and observations made hereinbefore, the
impugned judgments are set aside. These appeals are allowed. However, in B
the facts and circumstances of this case, there shall be no order as to costs.

D.G. Appeals allowed.