Holding

The respondents had no legal right to the inter‑charge transfer, were estopped from rescinding their earlier undertaking, and the appeal was allowed, with seniority counted from the date of joining the UDC post.

Summary

The Supreme Court heard a civil appeal filed by the Union of India challenging the transfer orders of two income‑tax officers who had voluntarily agreed to revert from the post of Upper Division Clerk (UDC) to Lower Division Clerk (LDC) to obtain a transfer from the Gujarat charge to the Kerala charge. The respondents relied on a circular issued by the Central Board of Direct Taxes (CBDT) on 14‑May‑1990, which stipulated that inter‑charge transfers could be made only against a clear vacancy and that such orders would be final, precluding any re‑transfer. The Court held that the officers had no legal right to a specific posting, that transfer is merely an incident of service, and that the respondents were estopped from rescinding their earlier undertaking to accept the LDC posting. It further observed that Article 14 of the Constitution imposes a positive equality principle but does not create a statutory right to transfer. Consequently, the impugned High Court judgment was set aside, the appeal was allowed, and the seniority of the first respondent was to be counted from the date he joined the UDC post. The decision was rendered under the Court’s powers under Article 142 of the Constitution.

Issues considered

Whether the respondents had a legal right to be transferred from one charge to another under the CBDT circular dated 14‑May‑1990.
Whether the principle of estoppel applies to the respondents who had voluntarily undertaken to accept a transfer to the LDC post.
Whether Article 14 of the Constitution creates a substantive right to inter‑charge transfer or merely a principle of equality.
Whether the Board of Direct Taxes has the authority to relax the vacancy requirement for inter‑charge transfers.
Whether the Supreme Court can set aside the High Court judgment and direct seniority in view of Article 142.

Legislation cited

Constitution of Indias. Article 14, s. Article 142

Subjects

transferinter‑charge transferservice lawestoppelArticle 14Article 142CBDT circularseniorityequality clause

Judgment

[2009] 12 S.C.R. 540

A UNION OF INDIA & ANR. ·" '
v.
MURALIDHARA MENON & ANR.
(Civil Appeal No. 5079 of 2009)
AUGUST 4, 2009
B
[S.B. SINHA AND CYRIAC JOSEPH, JJ]

Service Law:
:..---

c Transfer - Held: Is an incident of service - An employee
has no right to be posted at a particular place - He cannot
exercise his option to be posted in his home State unless
there exists any statute or statutory rule governing the field.

Transfer - Respondents-employees voluntarily agreed
D for reversion from post of UDC to post of LDC in order to get
transferred from 'Gujarat charge' to 'Kera/a charge' - Transfer
orders issued on basis of specific undertaking filed by
respondents - Challenge to - Circular letter issued by CBDT
dated 14-5-1990 in relation to inter-charge transfer -
E Interpretation and/or application of - Held: Respondents did
not have any legal right to be transferred from one charge to
another - Having given an undertaking and having opted to
be transferred on post of LDC, respondents could not have
resiled therefrom - They could not approbate and reprobate
F at the same tirnr:J - If an order was pass~d on their
representations, they were bound thereby particularly when the
circular letter itself suggested that the order of transfer passed
would be final and no order for retransfer could be passed -
Principle of ·estoppel' was clearly applicable - However,
G directions issued under Article 142 of the Constitution -
Doctrines - Doctrine of "estoppel" - Constitution of India, 1950 )r '

- Article 142.

Constitution of India, 1950 --Article 14 -- Equality clause

H 540
UNION OF INDIA & ANR. v. MURALIDHARA MENON 541
& ANR.
- Held: Is a positive concept in terms whereof, equals, subject A
to certain exceptions, are to be treated equally and unequals
cannot be treated equally.

Respondents voluntarily agreed for reversion from
the post of UDC to the post of LDC in order to get 8
transferred from 'Gujarat charge' to 'Kerala charge'.
Transfer orders were issued on basis of specific
undertaking filed by the respondents in this behalf.
However, the said transfer orders were subsequently
challenged by the Respondents. In view of the said C
challenge, interpretation and/or application of circular
letter issued by the Central Board of Direct Taxes (CBDT)
dated 14-5-1990 in relation to inter-charge transfer came
up for consideration in the present appeal.

Allowing the appeal, the Court D
·-r
HELD: 1. Respondents did not have any legal right
to be transferred from one charge to another.
Indisputably, the seniority of the LDCs and UDCs was
maintained chargewise. It is evident that the Board E
considered the matter carefully and found that there had
been no vacancy of UDC in 'Kerala Charge' so as to
_.._ enable the authorities to accommodate them on the basis
of inter charge transfer. However, it was found that the
vacancies in the posts of LDC were available. Only on
F
that basis, the respondents volunteered to be transferred
to the posts of LDC. It.was at their request-as also
undertakings furnished by them, the order of transfers
was passed. [Paras 11, 12 and 13] [548-B; 548-E-F; 548-
G]
G
2. Article 14 of the Constitution providing for the
equality clause is a positive concept in terms whereof, the
e'quals, subject to certain exceptions, are to be treated
equally and unequals cannot be treated equally. If a
relaxation has been granted in case of one employee on H
542 SUPREME COURT REPORTS [2009] 12 S.C.R.

A the basis of the materials available before the Board, the )- .
same by itself may not be treated to be a binding
precedent so as to enable the Tribunal or High Court to
issue a writ of or in the nature of mandamus. A writ of
mandamus can be issued, provided there exists a legal
B right in the applicant and a corresponding legal duty in
the respondent. Even otherwise a Superior Court having
a limited jurisdiction in this behalf would not interfere
with the discretionary jurisdiction exercised by the
statutory authorities unless a clear case for interference
c is made out subject of course to just exceptions. The
--
attention of this Court was not drawn to any provision
under the aforementioned circular or otherwise that the
Chief Commissioner of Income Tax had any power of
.
relaxation. If there are no vacancies, orders of transfer
could not be made. In absence of any power of
D
relaxation, the respondents could not have been .,._
accommodated on the post of UDCs and they could be
transferred only on the post of LDCs which were vacant
at the relevant time. [Paras 14 and 15) [548-G-H; 549-A-
B; 549-B-D; 549-D-E)
E
3. Respondents furthermore having given an
undertaking and having opted to be transferred on the ;._
post of LDC could not have resiled therefrom. They could
not approbate and reprobate at the same time. If an order
F was passed on their representations, they were bound
thereby particularly when the circular letter itself
suggested that the order of transfer passed would be
final and no order for retransfer could be passed. The
principle of 'estoppel' would, therefore, clearly be
G applicable. [Para 16) [549-F-G] ~-- ~

4. It is not a case where the service conditions of the
first respondent is governed by any statute or statutory
rules. Transfer is an incident of service. An employee has
no right to be posted at a particular place. He, in law,
H
UNION OF INDIA & ANR. v. MURALIDHARA MENON 543
& ANR.

' --+- cannot exercise his option to be posted in his home State A
unless there exists any statute or statutory rule governing
the field. Some policy decision was required to be taken
presumably because a large number of requests were
being received from the concerned employees. It has not
been contended that the said policy decision was. illegal. B
Even if the said policy decision was illegal, first
respondent cannot continue to remain posted in the State
of Kerala. He may be asked to go back to his original
----,.. posting, namely at some place which forms part of Gujarat
Charge. However, in exercise of jurisdiction under Article c
142 of the Constitution, it is directed that in view of the
fact that the first respondent has been working for a long
time in the post of U.D.C., he may not be reverted to the
post of L.D.C. but his seniority shall be counted from the
date on which he has joined in the said post. [Para 17 and
D
~
18] [549-H; 550-A-C; 550-0-E]

CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5079 of 2009.

From the Judgment & Order dated 14.10.2005 of the High E
Court of Kerala at Ernakulam in Writ Petition (Civil) No. 25155
of 2003 and 27568 of 2003.
__..._
R. Radhakrishnan, B.V. Balaram Das, for the Appellants.
Anupam Lal Das, Amit Sharma, S. Mohanty, for the F
Respondents.

The Judgment of the Court was delivered by

S.B. SINHA, J. 1. Leave granted.
G
I -1-.
2. Interpretation and/or application of circular letters issued
by the Central Board of Direct Taxes (CBDT) dated 14.5.1990
is in question in this appeal which arises out of a judgment and
order dated 14.10.2005 passed by a Division Bench of the
H
544 SUPREME COURT REPORTS [2009] 12 S.C.R.

A High Court of Kerala at Ernakulam in Writ Petition No.25155 ~.

of 2003 allowing the writ petition filed by the respondents herein
from a judgment and order dated 10.10.2002 passed by the
Central Administrative Tribunal, Ernakulam in OA Nos.728 of
2000 and 782 of 2000.
B
3. The basic fact of the matter is not in dispute.

Respondents herein were working in different States. They
filed an application for their transfer to the State of 'Kerala
Charge' from 'Gujarat Charge' on or about 14.5.1990. ---
c Indisputably the Board has the requisite power to regulate 'inter-
charge' transfers wherefor it issues guidelines from time to
time. One of such circulars was issued on 14.5.1990, the
relevant portion whereof read as under:

D "(d) A person who seeks transfer, should apply to the
head of the department, chief commissioner
director general under whom he is working, who
will, on being satisfied, take up the matter with his
-
head of the department in the charge to which the
employee seeks transfer. The latter head of the
E
department will examine the request on merits and
pass necessary orders for absorption of the person
seeking transfer. Such request shall be considered
and conceded only against a clear vacancy. His
decision in the matter shall be final. No request for
F re-transfer shall be entertained under any
circumstances.

(e) The direct recruits coming on transfers will be
shown against direct recruitment quota and
G promotees against the promotion quota."
>
'
4. On the respondents' application for transfer, it was found
that there did not exist any vacancy in the cadre of UDC in direct
recruit quota in Kerala Charge so as to enable it to
accommodate the respondents on inter-charge transfer.
H
UNION OF INDIA & ANR. v. MURALIDHARA MENON 545
& ANR. [S.B. SINHA, J.]
,r·---f, However, indication was given to the respondents by the Chief A
Commissioner of Income Tax that in case they were willing for
transfer to the post of LDC, they may opt therefor. Respondents
agreed thereto voluntarily to their reversion from the post of
UDC to the post of LDC in order to get them transferred from
Gujarat Charge to Kerala Charge. They filed a specific B
undertaking in this behalf. Relying on or on the basis thereof,
the order of transfer was issued.

-....,.,. 5. Respondents thereafter filed representations. The
request made therein was not acceded to. They filed original
applications before the Central Administrative Tribunal. It may
c
be placed on record that one of the employees, Sri Nair, had
filed a similar representation which was allowed by the Chief
Commissioner of Income Tax. Other employees who had been
transferred made similar representations. Their representations
having been rejected, Original Applications were filed which by D
--t reason of various judgments were allowed.

6. However, the Tribunal so far as the case of the
respondent is concerned, directed the respondent to consider
his representation dated 8.5.1997. E

The said representation was rejected by an order dated
~ 17.1.2000, holding that they had voluntarily agreed for reversion
and, thus, there has been no vacancy in the 'Kerala Charge' to
accommodate them.
F
7. Central Administrative Tribunal was approached again
by the respondents which was marked as OA No.728 of 2000
and 782 of 2000. By reason of a judgment and order dated
10.10.2002, the Tribunal dismisse>d the said application holding
that the cases of other persons who had applied for relaxation G
I ..f,
and obtained the same were clearly different from the cases
of the respondents who had accepted the condition of reversion
and the orders passed only on the basis of their willingness
expressed in that behalf.
H
546 SUPREME COURT REPORTS [2009] 12 S.C.R.

A The Tribunal furthermore noted that despite the objections ·'r '
raised in the Original Applications, those persons who would
be adversely affected, if the order of the Tribuai is implemented,
had not been impleaded as parties.

8. Respondents filed writ applications thereagainst which
B
by reason of the impugned judgment have been allowed by the
High Court, holding :

"We feel that the tribunal ought to have examined the matter ...--
more critically, as patently it was a case of hostile
c discrimination. Although the Asst. Solicitor General had
vehemently submitted that after obtaining a transfer on
request and after almost a decade, it would have been
impermissible on the part of the applicants to agitate the
claims to unsettle the seniority of other, we find extreme
D difficulty to accept this argument. When transfer benefits
are recognized as admissible, of course, with certain
restrictions, it has to be extended with fairness.
Government is not expected to pick and choose persons
who had applied for transfer directly to the CBDT, as the
E procedure followed is contrary to the guidelines. We have
to note that this had turned out as a sensitive issue.
Recording requests for transfers, inter-regional registers
are maintained by every region and normally the transfer
application are considered at the Commissioner's level.
F The Board had a duty to oversee that fairness was always
practiced."

The High Court furthermore opined that the guidelines
dated 14.5.1990 do not speak of any reversion as a pre-
condition for an inter-regional transfer. As regards the power
G of relaxation, it was observed: .....
'
"Further, the submission that relaxation was to be there,
itself is a misnomer since as referred to earlier, the norms
do not provide for a reversion at all and a relaxation was
H not at all necessary on this count. Perhaps minimum
UNION OF INDIA & ANR. v. MURALIDHARA MENON 547
& ANR. [S.B. SINHA, J.]
r"f<
incumbency in the post was relevant, but that is not the A
objection that was highlighted. Even though the norms
provide for accommodation of candidates coming from
direct recruitment quota against the direct recruitment
vacancy, and the promotees were to occupy only posts
against promotion quota, we see that in the cases where B
preference had been granted, such persons had been
accommodated against direct recruitment quota so as to
avoid any confrontation with the claims of departmental
hands."

The High Court, without referring to any material brought
c
before it, held:

"The proximity of dates relating other transfers sufficiently
.discloses that there were indeed vacancies. We can
postulate the difficulties of the petitioners, viz. that after D
"'" having worked for a number of years as UDC, against their
will they had to give a declaration that they are prepared
to opt for reversion and then get a transfer and get bottom
seniority, among the LDCs. Further, authorities ensured
that they were to get a declaration from time that such E
steps will not be subjected to challenge. This, we feel,
ought not have been practiced by the department to the
prejudice and detriment of the serving employee. We find
little merit in the objection raised."

9. Mr. R. Radhakrishnan, learned senior counsel
F
appearing on behalf of the appellant, would submit that keeping
in view the fact that the respondents had expressed their
willingness to be transferred to a lower post, they were
estopped and precluded from contending contra.
G
I -.',

10. Mr. Anupam Lal Das, learned counsel appearing on
behalf of the respondents, on the other hand, urged that having
regard to the fact that the persons similarly situated had been
accommodated to the posts of UDC from other Charge to
'Kerala Charge', there was absolutely no reason as to why the H
548 SUPREME COURT REPORTS [2009] 12 S.C.R.

A respondents should have been discriminated against. Our ,. '
attention was drawn to the fact that the respondents have
already been working against the post of UDC in terms of an
order dated 4.12.2006 pursuant to the impugned judgment of
the High Court.
B
11. Respondents did not have any legal right to be
transferred from one charge to another. Indisputably, the
seniority of the LDCs and UDCs are maintained chargewise.
Vacancies in the posts of UDCs are filled up from two sources,
namely, by direct recruitment and promotion. As the Service
c Rules provide for two different sources of recruitment and
vacancies could be identified on the basis thereof, the CBDT,
having a supervisory jurisdiction, could issue circulars from time
to time. It has not been disputed that the said circular letters
are binding on all the authorities of the department. The circular
D letter dated 14.5.1990 clearly provides for imputation of certain
.y
conditions laid down therein.

12. The procedures laid down, thus, were required to be
complied with. A request made in that behalf could be
E considered only when there existed a clear vacancy. From a
perusal of the memorandum dated 17 .1.2000, it is evident that
the Board considered the matter carefully and found that there
had been no vacancy of UDC in direct recruit quota in 'Kerala
Charge' so as to enable the authorities to accommodate them
F on the basis of inter charge transfer.

13. However, it was found that the vacancies in the posts
of LDC were available. Only on that basis, the respondents
herein volunteered to be transferred to the posts of LDC. It was
at their request as also undertakings furnished by them, the
G order of transfers was passed.
>- ~

14. Article 14 of the Constitution of India providing for the
equality clause is a positive concept in terms whereof, the
equals, subject to certain exceptions, are to be treated equally
H and unequals cannot be treated equally~Jf a relaxation has been
L'NION OF INDIA & ANR. v. MURALIDHARA MENON 549
& ANR. [S.B. SINHA, J.]

:' t granted ~n case of one employee on the basis of the materials A
available before the Board, the same by itself may not be
treated to be a binding precedent so as to enable the Tribunal
or High Court to issue a writ of or in the nature of mandamus.
Our attention has not been drawn to any provision under the
aforementioned circular or otherwise that the Chief B
Commissioner of Income Tax had any power of relaxation. If
there are no vacancies, orders of transfer could not be made.
Even if no vacancy existed in respect of the direct recruit quota,
-+ the respondents could not have been transferred. In absence
of any power of relaxation, the respondents could not have been c
accommodated on the post of UDCs and they could be
transferred only on the post of LDCs which were vacant at the
relevant time. In our opinion, relying on or on the basis of the
case of Sri Nair only, the impugned judgment could not have
been passed. D
15. The fact situation obtaining in case of Sri Nair has not
been brought on record. A writ of mandamus can be issued,
provided there exists a legal right in the applicant and a
'"' corresponding legal duty in the respondent. Even otherwise a
Superior Court having a limited jurisdiction in this behalf would E
not interfere with the discretionary jurisdiction exercised by the
statutory authorities unless a clear case for interference is made
----+--
out subject of course to just exceptions.

16. Respondents furthermore having given an undertaking F
and having opted to be transferred on the post of LDC could
not have resiled therefrom. They could not approbate and
reprobate at the same time. If an order was passed on their
representations, they were bound thereby particularly when the
circular letter itself suggested that an order of transfer had been G
f -<' passed would be final and no order for retransfer could be
passed. The principle of 'estoppel' would, therefore, clearly be
applicable.

17. It is not a case where the service conditions of the first
respondent rs governed by any statute or statutory rules. H
550 SUPREME COURT REPORTS (2009] 12 S.C.R.

A Transfer as is well known is an incident of service. An employee t '
has no right to be posted at a particular place. He, in law, cannot
exercise his option to be posted in his home State unless there
exists any statute or statutory rule governing the field. Some
policy decision was required to be taken presumably because
B a large Humber of requests were being received from the
concerned employees. It has not been contended that the said
policy decision was illegal. Even if the said policy decision was
illegal, first respondent cannot continue to remain posted in the
State of Kerala. He may be asked to go back to his original *.

c posting, namely at some place which forms part of Gujarat
Charge.

18. For the reasons aforementioned, the impugned
judgment cannot be sustained, which is set aside accordingly.
The appeal is allowed. However, we, in exercise of our
D jurisdiction under Article 142 of the Constitution of India, direct
that in view of the fact that the first respondent has been working
for a long time in the post of U.D.C., he may not be reverted to
the post of L.D.C. but his seniority shall be counted from the
date on which he has joined in the said post. No cost.
E
B.B.B. Appeal allowed.

. .