Appeal No 2348 of 1993
From the Judgment and Order dated 1371992 of the Central Administrative Tribunal Guahati in OA No 3391
Ms K Amareswari BP Sarathy and CV Subba Rao for the Appellants
PK Goswami Kailash Vasdev Ms Lira Goswami and Ms Alpana Poddar for the Respondent
The Judgment of the Court was delivered by BP JEEVAN REDDY J
Heard counsel for the parties
Leave granted
Respondent is a Garden Curator in the Office of the Scientist SE Botanical Survey of India Eastern Circle Shillong
By order dated January 29 1991 he was transferred from Shillong to Pauri Uttar Pradesh by the Senior Administrative Officer office of the Director Botanical Survey of India Ministry of Environment and Forests Government of India
As many as 19 persons were transferred under the said order including the respondent
The respondent has been working in Shillong since the year 1979
The respondent approached the Gauhati Bench of the Central Administrative Tribunal Original Application No 33 of 1991 questioning the order of his transfer
He submitted that his wife is also employed at Shillong in and off ice of the Central Government that his children are studying at Shillong and further that he himself had suffered back bone fracture injuries some time ago
He submitted that the guidelines contained in Government of India OM dated 341986 have not been kept in mind while ordering his transfer
tie complained that some other officials who have been serving at Shillong for a longer period have been allowed to continue at Shillong
He attributed mischief  to his Controller Officer Shri BM Wadhwa third respondent in the OM
In the counter affidavit filed by the respondents they submitted that the transfer was ordered on administrative grounds and is unexceptionable
The learned Single Member of the Central Administrative Tribunal quashed the order of transfer on the following reasoning the decisions of the Courts establish that the power of transfer is not an unfettered one but is circumscribed by various circularsguidelines contained in the administrative instructions issued 430 by the Government
An order of transfer can be interdicted if it is discriminatory
The said principles are applicable to the case of the respondent
Further in the matter of considering transfer of an individual officer the Office Memorandum dated 341986 educational dislocation of the children and health ground if all present deserve special consideration not to pass the order Having said so the learned Member recorded the following finding In view of the above facts and circumstances and findings it is held unhesitatingly that the transfer order No BSI
80580 Estt
dated 2911991 in respect of applicant SLAbbas was malafide and liable to be quashed
 The Union of India has preferred this appeal
An order of transfer is an incident of Government Service
Fundamental Rule 11 says that the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority
Fundemental Rule 15 says that the President may transfer a government servant from one post to another
That the respondent is liable to transfer anywhere in India is not in dispute
It is not the case of the respondent that order of his transfer is vitiated by mala fides on the part of the authority making the order though the Tribunal does say so merely because certain guidelines issued by the Central Government are not followed with which finding we shall deal later
The respondent attributedmischiefto his immediate superior who had nothing to do with his transfer
All he says is that he should not be transferred because his wife is working at shillong his children are studying there and also because his health had suffered a set back some time ago
He relies upon certain executive instructions issued by the Government in that behalf
Those instructions are in the nature of guidelines
They do not have statutory force
Who should be transferred where is a matter for the appropriate authority to decide
Unless the order of transfer is vitiated by malafides or is made in violation of any statutory provisions the Court cannot interfere with it
While ordering the transfer there is no doubt the authority must keep in mind the guidelines issued by the Government on the subject
Similarly if a person makes any representation with respect to his transfer the appropriate authority must consider the same having regard to the exigencies of administration
The guidelines say that as far as possible husband and wife must be posted at the same place
The said guideline however does not confer upon the government employee a legally enforceable right
The jurisdication of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Article 226 of the constitution of India in service matters
This is evident from a persual of Article 323 A of the constitution
The constraints and norms which the High Court observes while exercising the 431 said jurisdiction apply equally to the Tribunal created under Article 323 A We find it all the more surprising that the learned Single Member who passed the impugned order is a former Judge of the High Court and is thus aware of the norms and constraints of the writ jurisdiction The Administrative Tribunal is not an Appellate Authority sitting in judgment over the orders of transfer
It cannot substitute its own judgment for that of the authority competent to transfer
In this case the Tribunal has clearly exceeded its jurisdiction in interfering with the order of transfer
The order of the Tribunal reads as if it were sitting in appeal over the order of transfer made by the Senior Administrative Officer competent authority
Shri Goswami learned counsel for the respondent relies upon the decision of this Court in Bank of India vs Jagjit Singh Mehta 1992 1 SCC306 rendered by a Bench of which one of us JS VermaJ was a member
On a perusal of the judgment we do not think it supports the respondent in any manner
It is observed therein There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employers be different
The desirability of such a course is obvious
However this does not mean that their place of posting should invariably be one of their choice even though their preference may be taken into account while making the decision in accordance with the administrative needs
In the case of all India services the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other s posting
While choosing the career and a particular service the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees
In such a case the couple have to make their choice at the threshold between career prospects and family life
After giving preference to the career prospects by accepting such a promotion or any appointment in an all India service with the incident of transfer to any place in India subordinating the need of the couple living together at one station they cannot as of right claim to be relieved of the ordinary incidents of all India service and avoid transfer to a different place on the ground that the spouses thereby would be posted at different places       
No doubt 432 the guidelines requires the two spouses to he posted at one pi as far as practicable but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible
The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees emphasis added The said observations in fact tend to negative the respondent s contentions instead of supporting them
The judgment also does not support the Respondents  contention that if such an order is questioned in a Court or the Tribunal the authority is obliged to justify the transfer by adducing the reasons therefor
It does not also say that the Court or the Tribunal can quash the order of transfer if any of the administrative instructionsguidelines are not followed much less can it be charactrised as malafide for that reason
To reiterate the order of transfer can be questioned in a court or Tribunal only where it is passed malafide or where it is made in violation of the statutory provisions
For the above reasons the appeal is allowed
The judgment under appeal is set aside
There shall be no order as to costs
NPV Appeal Allowed


Summary:
Section 6 of Andhra Pradesh General Sales Tax Act 1957 provides a single point tax  4  on declared goods mentioned in the Third Schedule to that Act
Item 2 of the Third Schedule describes the articles made of Iron  steel which fall in the category of declared goods  sub item i of Item 2 pertains to pig iron and cast iron including ingot moulds bottom plates iron scrap cast iron scrap runner scrap and iron skill scrap Cast iron  is defined in the Concise Oxford Dictionary as a hard alloy of iron carbon and silicon cast in a mould
On February 281977 the Department of Revenue  Banking Revenue Wing Government of India issued a letter to all Finance Revenue Secretaries of all State Governments and Union Territories explaining the term Cast Iron  mentioned in section 14 iv i of the 
This letter said to have been issued in consultation with the Directorate General of Technical Development_Chief Chemist and the Ministry of Law Justice  Company Affairs extended the scope of the expression cast iron  to cover cast iron casting  also
Based on similar clarifications the Department of Revenue S Department of the Government of Andhra Pradesh issued a clarificatory order under section 422 of the Act vide GOMs No 383 dated April 171985 extending the scope of the expression cast iron  to include cast iron castings
This order was also published in the State s official Gazette
Section 42 2 of AP General Sales Tax Act empowers the State Government to make by an order such provisions as appear to them necessary  expedient to remove difficulty in the implementation of this Act provided that these are not inconsistent with the provisions of the Act
The appellant manufactures and sells products like cast iron pipesman 434 hole covers etc
He claims that read with the above clarificatory orders he is liable to pay only 4 sales Tax under Section 6 of the AP General Sales Tax ct But for the assessment year 1989 90 the Commercial Tax Officer CTO Narayanaguda Circle Hyderabad levied Sales Tax on the said products at the rate applicable to general goods
The CTO having overruled the appellant s contentions the
latter appealed to the Appellate Deputy Commissioner
During the pendency of appeal a notice was issued to the appellant calling upon him to pay the tax assessed since no stay has been granted in appeal
Against this notice the appellant filed a writ petition No 9315 of 1992 in the High Court of Andhra Pradesh
The Division Bench of the High Court rejected the appellant s main contention that his products were covered by Item 2 iof the Third Schedule to the AP General Sales Tax Act and dismissed the writ petition
Vide Civil Appeal No 4474 of 1992 with Writ PetitionCivil No 763 of 1992
The appellant questions before this Court the above view of the High Court
Rejecting the appellant s contentions and upholding the judgment and order of the High Court this Court HELD Law is what is declared by this Court and the High Court
An executive authority can at best only opine its own understanding of the statute such opinion is not binding upon the quasi judicial functioning of the authorities under the Act
444 B Sanjeev Coke Manufacturing Company vs Ms Bharat Cooking Coal lid
and another   referred to
The Government cannot use the powers conferred by section 42 2 of the AP General Sales Tax Act to dispense with a levy created by the Act
444D The Van Nostrand s Scientific Encyclopaedia treats cast iron  and cast iron  with a hyphen as two different words
The Act speaks of cast iron  that is without a hyphen between the two words 437 G H Hence the expression castiron in Item 2 i of AP General Sales Tax Act does not include the products cast iron pipes man hole covers bends etc
437 F Deccan Engineers vs State of Andhra Pradesh
1991 Vo 12 AP Sales Tax Journal 138 referred to