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Is State's Concurrence Mandatory To Allow Transfer Of IAS Officer To Join Spouse's Cadre? Supreme Court To Consider

Srishti Ojha
27 March 2022 11:43 AM GMT
Is States Concurrence Mandatory To Allow Transfer Of IAS Officer To Join Spouses Cadre? Supreme Court To Consider
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The Supreme Court has agreed to examine the legal issue pertaining to the effect of Rule 5(2) of the IAS (Cadre) Rules, 1954 and the impact of insistence on concurrence by the State Government for the transfer of an officer in the context of marriage with another officer of the All India Service. The matter pertains to seeking NOC from the State of West Bengal for cadre transfer of...

The Supreme Court  has agreed to examine the legal issue pertaining to the effect of Rule 5(2) of the IAS (Cadre) Rules, 1954 and the impact of insistence on concurrence by the State Government for the transfer of an officer in the context of marriage with another officer of the All India Service.

The matter pertains to seeking NOC from the State of West Bengal for cadre transfer of an officer from West Bengal Cadre to Uttarakhand Cadre on the ground of marriage under Rule 5(2) of IAS (Cadre) Rules 1954.

The rule states the Central Government may with concurrence of the State Government transfer a cadre officer from one cadre to another.

In a special leave petition filed by the State of West Bengal, a Bench comprising Justice KM Joseph and Justice Hrishikesh Roy has refused to interfere with the Delhi High Court's judgement which dismissed the State's challenge against the order passed by Central Administrative Tribunal allowing inter cadre transfer of a female officer from West Bengal to Uttarakhand on ground of marriage.

The Supreme Court clarified that while it will not be interfering with the orders of the Tribunal in favour of the respondent officer but it will examine the legal issue which has been raised.

The Bench has issued notice in the special leave petition and directed the matter to be listed on 26th April 2022.

"...the question which is raised by the petitioner (State of West Bengal) pertains to the effect of Rule 5(2) of the IAS (Cadre) Rules, 1954 and the impact of the Rule Giver insisting on concurrence by the State Government for the transfer of an officer in the context of marriage with another officer of the All India Service. We are inclined to examine the legal issue. However, we feel that interest of justice would not require that we should interfere with the order passed in favour of the respondents by the High Court which upheld the order of the Tribunal. We therefore make it clear that we will not be interfering with the orders of the Tribunal in favour of the respondent officer but will examine the legal issue which has been raised" - the bench observed in the order.

According to the State of West Bengal, which has challenged the Delhi High Court order,  as per the settled rules of Interpretation the word "may" is discretionary in nature, and therefore, it is not mandatory upon the State Government to give concurrence to any such proposal of Central Government. Further, where the power is wide enough to cover both an acceptance and a refusal of an application for its exercise, depending upon facts, it is directory or discretionary.

In the present case a female officer was allocated the West Bengal cadre in accordance with the Allocation List of Civil Services Examination -2012. After she got married to an IFS Officer of 2012 Batch posted in Uttarakhand cadre, she made a representation to the State of West Bengal and to Secretary, DOPT, Government of India, and requested for a Cadre Transfer from the State of West Bengal to the State of Uttarakhand i.e., the cadre of her spouse on the ground of marriage.

While the Government of Uttarakhand had conveyed that it has "no objection" regarding the Inter-Cadre transfer, the State of West Bengal after due consideration refused to give consent for Cadre transfer on account of acute shortage of IAS officers in the State Cadre vis-à-vis the sanctioned strength

The State then proposed that if respondent's husband applies for the change of his Cadre from State Uttarakhand to State of West Bengal then the petitioner State will accord necessary NOC to him.

The order was challenged by the respondent before the CAT which directed the State to relieve the respondent while observing that "Having regard to the facts and circumstances, we allow the OA and set aside the order dated 30.11.2016. We grant time of six weeks to the State of West Bengal to pass necessary orders in this behalf. It is directed that in case the applicant is not relieved by that time, she shall be deemed to have been relieved on expiry of six weeks". The tribunal further gave another opportunity to the State to pass a fresh order

The CAT's order was upheld by the High Court in a writ petition filed by the State.

The High Court observed that there is no dispute that, respondent no.1 was entitled to seek inter cadre transfer, in terms of Rule 5(2) of the Indian Administrative Services (Cadre) Rules, 1954.

According to the High Court, the State trotted out, shortage of officers, as the reason, for rejecting the request of respondent no.1 qua inter-cadre transfer, without placing the relevant material on record.

The High Court observed that the reasons set out in the order of refusal for inter-cadre transfer are backed by relevant material, it cannot pass muster of this Court. The writ petition was accordingly dismissed

Case Title: State of West Bengal v Reena Joshi & Anr|Special Leave to Appeal (C) No. 15914/2021

Click here to read/download the order

Click here to read/download the High Court order

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