Spouse Posting Policy No Absolute Right To Transfer; Can't Assume Family Duties Rest With One Spouse: Rajasthan High Court

While refusing interference in a bunch of petitions by government employees seeking transfers at places where their spouses were posted, Rajasthan High Court held that a general policy and vacancy at the preferred station, in isolation, does not establish an enforceable right to transfer in favour of the employee.

“The nature of the post, the applicable cadre and service rules, staffing requirements at the existing and proposed places of posting, tenure considerations, suitability of the employee and competing administrative requirements may all bear upon the decision. Particularly in departments such as prisons and police, the requirements of maintaining operational strength and deploying personnel in accordance with administrative needs cannot be disregarded. A posting policy cannot be applied mechanically without regard to these considerations.”

At the same time, the bench of Justice Kuldeep Mathur, observed that the circumstances in which the employees discharged duties had changed over time wherein women participation had expanded. Hence, desirability of posting spouses together could not be assessed by assuming that family responsibilities were discharged predominantly by one spouse.

For context, the Court was hearing a bunch of petitions by government employees seeking posting at the same station as that of their spouses on the ground of the general policy that recognized the desirability of posting husband and wife at the same station, which was also contemplated in a circular dated May 18, 2020 issued by Administrative Reforms Department.

After hearing the contentions, the Court agreed with the existence of the policy and the circular, and observed that the circular could not be understood as conferring an absolute right upon employees to secure transfer to the station of their choice.

Reference was made to the Supreme Court case of Bank of India v Jagjit Singh Mehta in which it was held that departmental authorities were required to consider feasibility of a suitable posting along with exigencies of administration and the claims of other employees.

“The decision thus calls for a balanced approach: constitutional values and legitimate family concerns must inform administrative decision making, but the manner in which these considerations are accommodated has to remain consistent with the governing service conditions and legitimate administrative requirements.”

The Court further observed that times have changed, and both spouses have independent service obligations, professional responsibilities and career considerations. Hence, desirability of posting spouses together could not be assessed by assuming that career of one must invariably yield to the posting of the other.

“A fair and contemporary approach requires that the concerns of both employees be considered, without presuming that the posting of either spouse must automatically be altered to accommodate the other. At the same time, the administration is required to maintain adequate staffing at different establishments and to ensure that public services function efficiently.”

The Court also stated that the age of a policy did not render it invalid, since its implementation had to be responsive to present day administrative requirements and applicable service framework. Hence, it was stated that if the existing policy required any change, it was a matter of competent executive authority, and the Court could not rewrite it.

“Judicial interference would be warranted where the impugned action is shown to be arbitrary, discriminatory, mala fide, contrary to a binding statutory provision or otherwise legally unsustainable. In the absence of such circumstances, this Court would not be justified in substituting its own assessment of the appropriate place of posting for that of the competent administrative authority.”

Accordingly, it was held that in the present case, there was no such circumstances, and hence no ground to issue a general direction requiring respondents to post the petitioners at stations where their respective spouses were serving.

Accordingly, the petitions were disposed of while granting liberty to the petitioners to submit fresh representations before the respondents.