Lakshmi Bhavya Tanneeru v. Union of India & Ors.

3.5. Evidently, the petitioner accepted her lot for the next three years or so [post rejection of her request in November 2016] i.e., up until 12.12.2019, when she made a fresh representation to the concerned officer of the State of West Bengal i.e., the Principal Secretary, Personnel and Administrative Reforms & E-Governance Department, Government of West Bengal, for reconsideration of her proposal for change in the cadre.

3.6. Besides this, the petitioner also took recourse to the provisions of the Right to Information Act, 2005 to seek copies of the correspondences exchanged between the Union of India/DoPT and State of West Bengal, concerning the petitioner's request for inter-cadre transfer. Apparently, the information sought by the petitioner was furnished by the DoPT, via communication dated 24.02.2020.

3.7. The petitioner followed up her December 2019 representation with yet another representation dated 13.07.2020, which, inter alia, sought to remind the concerned officer in the State of West Bengal that he needed to reconsider her request for change in the cadre.

3.8. Since there was no movement in the matter, the petitioner approached the Tribunal by way of an original application i.e., O.A. No.1299/2020. As noted at the very outset, the Tribunal, vide order dated 02.02.2021, allowed the O.A. [albeit, not to the satisfaction of the petitioner] and directed the respondents arrayed therein, to reconsider the petitioner’s request for intercadre transfer.

3.9. Despite the Tribunal’s direction to reconsider the petitioner’s request for inter-cadre transfer, the matter did not receive the required attention from the concerned authority in the State of West Bengal. This impelled the petitioner to make a representation on 13.04.2021 to the Chief Secretary, State of West Bengal. The backdrop to this representation was the operative directions contained in the Tribunal’s order dated 02.02.2021. The State of West Bengal, it appears, did not respond to the representation, and therefore, as indicated above, the instant writ petition was filed, which came up before this Court on 28.05.2021.

4. The progress of the writ action thereafter has already been noticed by us hereinabove.

5. It is in the backdrop of the aforesaid facts and circumstances that the arguments on behalf of the petitioner were advanced by Mr Madhukar, while those on behalf of the State of West Bengal were articulated by Ms Bhattacharjee. The Union of India was represented by Ms Bharathi Raju. Submissions on behalf of the petitioner:

6. Mr Madhukar has, broadly, made the following submissions:

(i) The petitioner has been meted out discriminatory treatment. In this context, it was stated that, although the petitioner’s request for inter-cadre transfer was rejected on 25.11.2016 on the ground of shortage of officers, the request of several other officers, on similar ground, was considered.

(ii) The petitioner's request for inter-cadre transfer aligns with the provisions contained in the Office Memorandum (‘OM’), dated 30.09.2009, issued by the Government of India, Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training, and Rule 5(2) of the Indian Administrative Service (Cadre) Rules, 1954 [hereafter referred to as “1954 Cadre Rules”].

(iii) The failure on the part of the State of West Bengal to issue a noobjection for effecting inter-cadre transfer qua the petitioner has gravely impacted her well-being and familial relationships. The action of the State of West Bengal has resulted in a violation of the petitioner's fundamental rights, under Article 21 of the Indian Constitution.

(iv) The petitioner is unable to strike a balance between her work and personal life. The obdurate approach of the State of West Bengal has prevented the petitioner from starting a family.

(v) The State of West Bengal’s proposal that the petitioner's husband would be issued a no-objection directive if he were to choose to get absorbed in the West Bengal cadre, to say the least, is a gratuitous proposal, which has been made without wanting to know and appreciating the circumstances, in which the request was made by the petitioner for change in the cadre. (va) In this context, it is necessary to emphasize that the petitioner’s father-in-law and grandfather-in-law passed away in 2016 and 2019 respectively, leaving behind her mother-in-law and grandmother-in-law, and also aunt-in-law in the care and custody of the petitioner’s spouse, who, as indicated above, is located in Tamil Nadu.

(vi) The petitioner’s case is pari materia with the facts and circumstances considered in the following decisions rendered vis-à-vis other officers: (a) Judgement dated 03.02.2020, passed in W.P.(C) No.13444/2019, titled Bhavna Gupta vs. Union of India. (b) Order dated 04.12.2020, passed in O.A. No.3579/2019, titled Gandharva Rathore vs. Union of India &Ors.

(c) Order dated 29.10.2010, passed in O.A. No.218/2010, titled Dr.

Adarsh Singh vs. Union of India & Ors.

(vii) The aforesaid precedents were binding on the Tribunal, and therefore, it should have granted the necessary relief to the petitioner, and not restricted itself to the issuance of a direction to the State of West Bengal, to reconsider her representation for inter-cadre transfer. [See All India Medical Science vs. Sanjeev Chaturvedi 2019 SCC Online SC 118.] (viii)The order dated 02.08.2021, passed by the State of West Bengal is contrary to the OM dated 30.09.2009 and Rule 5(2) of the 1954 Cadre Rules. The reason given for rejecting the petitioner’s request by the State of West Bengal, pursuant to the order of the Tribunal dated 02.02.2021 is specious. The State of West Bengal has, conveniently, taken recourse to the fact that the coronavirus pandemic is spread across the country.

(ix) However, the States including the State of West Bengal has permitted inter-cadre transfer during this period. Furthermore, what requires to be highlighted is that, in most cases, orders of inter-cadre transfers have been passed (approximately) between 26 days to 180 days. In this context, reference was made to the table set out in paragraph 4.10(h) of the amended writ petition. Submissions on behalf of the State of West Bengal:

7. On the other hand, Ms Bhattacharjee has, broadly, made the following submissions:

(i) That inter-cadre transfer can only be effected with the concurrence of the State of West Bengal. This, according to her, was plainly evident upon a bare perusal of Rule 5(2) of the 1954 Cadre Rules.

(ii) A careful perusal of Rule 5(2) of the 1954 Cadre Rules would show, that the said Rule applies to either spouse. In other words, the proposal made by the State of West Bengal that the petitioner’s spouse could join the West Bengal cadre, and the necessary no-objection directive could be issued to facilitate the same, was an aspect that can be progressed under the aforesaid Rule.

(iii) The delay in passing a fresh administrative order i.e., order dated

02.08.2021 was caused, as the State of West Bengal received a copy of the detailed order only on 22.07.2021. In this context, a reference was made to the State of West Bengal Government’s letter dated 12.05.2021 addressed to the petitioner, whereby a detailed copy of the order dated 02.02.2021, passed by the Tribunal, was sought. It was emphasized that the petitioner replied to this communication vide letter dated 16.07.2021, whereupon the concerned department received the detailed copy of the order dated 02.02.2021, only on 22.07.2021.

(iv) Because Covid-19 continues to prevail in various parts of the country including the State of West Bengal, it is in dire need of the services of administrative officers, who are tasked to deal with myriad aspects concerning the pandemic. The State of West Bengal’s decision to refuse the petitioner’s request to grant no objection for effecting inter-cadre transfer must be viewed, in this context.

(v) It needs to be stressed that, although the object of the OM dated

08.11.2004 issued by the Government of India [as referred to in the letter dated 29.08.2017, issued by the Secretary, DoPT, Government of India] is to ensure that married couples are posted in the same place, it does not confer any right on the officer, to demand a specific cadre.

(vi) The State of West Bengal, has vide communication dated 05.11.2020, written to the DoPT, to consider, inter alia, replacement of officers before calling upon the State of West Bengal to issue no-objection directives for effecting the inter-cadre transfer, given the acute shortage of officers in the State.

(vii) The cadre allocation is an incidence of service and not a right conferred on the petitioner. [See Union of India and Ors vs. Rajiv Yadav (1994) 6 SCC 38 and Union of India vs. Mhathung Kithan & Ors.

(viii) The plain language of Rule 5(2) of the 1954 Cadre Rules, leaves no manner of doubt that inter-cadre transfer can take place only with the concurrence of the concerned State. In this case, the State of Bengal is the concerned state and its concurrence is, therefore, necessary. Analysis and reasons:

8. We have heard the learned counsel for the parties and perused the record.

9. A perusal of the record shows that the following facts have emerged, qua which there is no cavil and/or traverse.

9.1. The petitioner, who is an IAS officer, was allocated the State of West Bengal cadre, on 01.09.2015. She entered into matrimony on 25.03.2016, with, one, Mr Raja Gopal Sunkara, also an IAS officer, belonging to the Tamil Nadu cadre.

9.2. The first time around, the petitioner made a representation for intercadre transfer to the Secretary, DoPT on 29.03.2016.

9.3. The DoPT, on 18.04.2016, sought the concurrence of the State of West Bengal, vis-a-vis the petitioner’s request for inter-cadre transfer on account of marriage. This request was reiterated by the DoPT, on 01.06.2016, 01.09.2016 and 27.10.2016.

9.4. Although the State of Tamil Nadu gave its no-objection on 21.07.2016, the State of West Bengal rejected the request made in that behalf, on 25.11.2016.

9.5. After the rejection of the petitioner's request for inter-cadre transfer, several inter-cadre transfers were effected, whereby officers belonging to both IAS and the Indian Police Service (IPS) moved from West Bengal to other cadres. The details concerning the same are provided hereafter: Name of Officer & Spouse Transfer Notification issued effecting inter-cadre transfer From To Shivani Tiwari, IPS married to Prashant Anand, IPS West Bengal Jharkhand 31.08.2017 Loganayagi Divya V, IPS married to Rahul P.R., IPS West Bengal Odisha 12.09.2017 Raj Karan Nayyar, IPS married to Sujata Singh, IPS West Bengal Uttar Pradesh 12.09.2017

West Bengal AGMUT 05.03.2018 Abhijeet Singh, IPS, married to Savita Dahiya, IFoS West Bengal Rajasthan 10.04.2018 Malika Garg, IPS married to Vakul Jindal, IPS West Bengal Andhra Pradesh 15.12.2020

9.6. It appears that the petitioner, after a gap of more than three years, made a fresh representation on 12.12.2019 for being issued a no objection to effectuate her inter-cadre transfer. Since the said representation did not bear fruit, the petitioner moved the Tribunal, which resulted in the order dated 02.02.2021 being passed.

9.7. During the pendency of the writ petition in this Court, the State of West Bengal passed an order dated 02.08.2021, in compliance with the directions issued by the Tribunal on 02.02.2021, to consider afresh, the petitioner’s request for inter-cadre transfer.

9.8. The State of West Bengal has declined the petitioner’s request for issuance of no objection consistently on the ground of shortage of officers, both before and after the coronavirus pandemic afflicted the residents of the country, even though, in many cases, no-objection was granted. The pandemic is put forth as reason only to support its primary ground for refusal to grant no objection, which is, shortage of officers.

10. More particularly, as demonstrated hereinabove [see paragraph 9.[5] above], between 29.03.2016, when the petitioner had made her request for inter-cadre transfer for the first time on the ground of marriage, and March 2020, when cases of coronavirus spiked in the country [of which judicial notice is taken by us], in the first instance, inter-cadre transfers did take place qua officers belonging to AIS.

10.1. Therefore, the reason given by the State of West Bengal was that because there was a shortage of officers, and hence, the petitioner could not be released, without more, cannot be sustained.

10.2. Apart from trotting out a vague reason that there is a shortage of officers, nothing has been placed on record, which would persuade us to accept the State of West Bengal’s stand that because of shortage of officers, the petitioner’s request for inter-cadre transfer could not be entertained.

10.3. The State of West Bengal’s attempt to defend its decision, to reject the petitioner’s request for inter-cadre transfer by citing the occurrence of the pandemic does not impress us, as it seems tenuous for the very same reason. The petitioner has placed on record the details of officers who have been transferred by other State Governments on the ground of marriage, during the pandemic; presumably having regard to the familial interest of the officers. As a matter of fact, the State of West Bengal has received via intercadre transfers, three IAS officers from the States of Manipur, Kerala and Rajasthan.

10.4. In our view, because the State of West Bengal has chosen not to submit the relevant data, the bald and vague reasons furnished by it cannot be accepted.

11. Having said so, it is evident upon a plain reading of Rule 5(2) of the 1954 Cadre Rules that, the inter-cadre transfer cannot take place without the concurrence of the concerned State Government to whom the officer is attached/assigned. Given the federal structure of governance, one cannot gainsay that the view of the transferor State Government, with whom the officer is encadred, is to be given its due weight. However, the refusal of the request made for inter-cadre transfer by an officer on the ground of marriage can only be sustained if it is backed by cogent reasons—as such a decision is subject to judicial review.

11.1. Since the State of West Bengal has not been able to place the relevant data on record, which would justify its stand that the petitioner’s request had been considered objectively, and thereafter, rejected because of shortage of officers, we find it difficult to sustain the decision as reasons put forth by the State of West Bengal did not seem to come in its way while taking decision(s) on the requests made by other officers.

11.2. The provisions made in the 1954 Cadre Rules, when read with OM dated 30.09.2009, suggest that, the object and purpose of permitting intercadre transfer are, to ensure holistic progress and well-being of the members of AIS. The object and purpose appear to be to enhance the efficiency of the officers by ensuring that they are not weighed down because of marital discord and unhappiness on the home front.

11.3. As noticed above, there is much weight in the petitioner’s contention that, while in the case of other officers no-objection directives for facilitating inter-cadre transfer were issued, her request was declined, without a cogent reason.

11.4. Ms Bhattacharjee's argument that the cadre allocation is an incident of service and not a right vested in an employee is a proposition with which one cannot quibble.

11.5. That being said, this broad proposition has to be understood in the context of provisions of Rule 5(2) of the 1954 Cadre Rules and the OM dated 30.09.2009, which carried forward the object and purpose of permitting inter-cadre transfer qua members of AIS on the ground of marriage.

12. The Petitioner’s assertion that denial of her request for inter-cadre transfer has resulted in an infraction of her right to family life; in our opinion, has much weight. The fact that such rights are recognized as part of human rights, clearly emerges, upon a perusal of Article 8 of the European Convention on Human Rights [hereafter referred to as "Convention"]1. A plain reading of Article 8(1) of the Convention discloses that every individual has the right to insist that the State respects her/his private and family life, home and correspondence.

12.1. In this context, it would be useful to advert to the observations made by the House of Lords in the matter of Huang (FC) v. Secretary of State for the Home Department [(2007) UKHL 11]. This was a case, where a Chinese citizen's application seeking permission to remain in the United Kingdom, where other members of her family were residing, was declined by the Secretary of State. The House of Lords, while rendering its decision, made the following observations:- “......Human beings are social animals. They depend on others. Their family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially. There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives. Matters such as the age, health and vulnerability of the applicant, the closeness and previous history of the family, the applicant's dependence on the financial and emotional support of Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. the family, the prevailing cultural tradition and conditions in the country of origin and many other factors may all be relevant.......In most cases where the applicants complain of a violation of their Article 8 rights, in a case where the impugned decision is authorised by law for a legitimate object and the interference (or lack of respect) is of sufficient seriousness to engage the operation of the Article 8, the crucial question is likely to be whether the interference (or lack of respect) complained of is proportionate to the legitimate end sought to be achieved……...” (emphasis is ours)

12.2. These observations, in a sense, explain the scope of the expression “family life”. We have no doubt that the right to meaningful family life, which allows a person to live a fulfilling life and helps in retaining her/his physical, psychological and emotional integrity would find a place in the four corners of Article 21 of the Constitution of India[2]. Therefore, when the State unreasonably denies a request of an employee [in this case, the petitioner] seeking inter-cadre transfer, it impinges upon such person’s right to demand respect for her/his family life.

13. Before we conclude, we also want to deal with Ms Bhattacharjee's contention that, since a fresh administrative order was passed on 02.08.2021, pursuant to the Tribunal’s order dated 02.02.2021, the petitioner should be directed to avail her remedy under the Administrative Tribunals Act, 1985. In other words, no relief should be granted to the petitioner in the instant writ petition.

13.1. As noted in our order dated 10.08.2021, we would have ordinarily sustained this objection advanced on behalf of the State of West Bengal, but See Suchita Srivastava v. Chandigarh Admn., (2009) 9 SCC 1, paragraph 22 for the fact that the State of West Bengal refused to act on the representations of the petitioner made between 12.12.2019 and 13.04.2021, although, several officers had been issued no-objection directives for facilitating inter-cadre transfer between August 2017 and December 2020.

13.2. Furthermore, even after the Tribunal had passed an order on 02.02.2021, directing the State of West Bengal to reconsider the request of the petitioner for inter-cadre transfer, a fresh order was passed [dated 02.08.2021], only after this aspect was noticed by us on 30.07.2021. Although notice in the writ petition was issued on 28.05.2021, the State of West Bengal had not filed the counter affidavit up-until the said date i.e., 30.07.2021, and even on that date, Ms Bhattacharjee sought further time to file the same; a request which was acceded to, only to know, what exactly was/were its reason(s) for not granting it’s no objection in the petitioner’s case.

13.3. Had we relegated the petitioner to the Tribunal to ventilate her grievance, it would have, in our view, added more misery and grief to the lot of the petitioner. It is keeping these aspects in mind that we granted leave to the petitioner to amend the writ petition [via our order dated 10.08.2021], and lay a challenge to the order dated 02.08.2021, passed by the State of West Bengal.

13.4. As noticed by us hereinabove, the reasons for rejecting the request of the petitioner have remained unchanged. The only change, which has been brought about, is that the State of West Bengal has propped up Covid-19 as its shield to defend its decision. Conclusion:

14. Thus, for the foregoing reasons, we are inclined to allow the prayers made in the writ petition.

14.1. Accordingly, the order dated 02.02.2021, passed by the Tribunal, is set aside.

14.2. Furthermore, the order dated 02.08.2021, passed by the State of West Bengal, is also set aside.

14.3. The State of West Bengal will issue a no-objection directive qua the petitioner to enable effectuation of her request for inter-cadre transfer within two weeks from the date of receipt of a copy of this judgement.

14.4. Respondent no.1 will act on the said no objection, and accordingly, effect inter-cadre transfer of the petitioner from the State of West Bengal to the State of Tamil Nadu. Since Ms Raju, counsel for respondent no.1, has conveyed to us that respondent no.1 supports the request made by the petitioner for inter-cadre transfer, it is expected to act with due alacrity in the matter.

15. The costs will follow the result.

16. The writ petition is disposed of in the aforesaid terms. Consequently, pending applications shall also stand closed.

RAJIV SHAKDHER, J. TALWANT SINGH, J. NOVEMBER 16, 2021