Hon’ble Mr. R.N. Singh, Member (J):

1. In the present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant is aggrieved by non-grant of 'No Objection Certificate' (hereinafter referred to as 'NOC') for change of her cadre from West Bengal Cadre to Rajasthan Cadre vide her application dated 13.7.2023 (Annexure A-1), which she has sought on the ground of her marriage with an IAS :RJ:2022, namely, Shri Shubham Ashok Bhaisare, in consonance with change of cadre of 'All India Service Officers-Policy' and also in view of various judgments of this Tribunal as well as of the Hon'ble High Court of Delhi in Writ Petition (C) No. 13444/2019, titled Bhavna Gupta vs. The Union of India and others, decided on 3.2.2020, Writ Petition (C) No. 3927/2020, titled Ms. Loganayagi Divya V. vs. Union of India & Ors. decided on 22.7.2020, Writ Petition (C) No. 11966/2018, titled The State of West Bengal vs. Raj Karan Nayyar and another, decided on 2.11.2018; and recent judgment in Writ Petition (C) No. 2262/2022, titled Govt. of West Bengal vs. Arsh Verma and others, decided on 7.4.2022. The applicant has further challenged the letter dated 20.7.2023 (Annexure A-2) vide which the competent authority of the Govt. of West Bengal has rejected the above request of the applicant for grant of NOC in her favour for inter-cadre transfer from West Bengal Cadre to Rajasthan Cadre on the ground of her marriage with Shri Shubham Ashok Bhaisare, IAS, 2022 due to shortage of IAS Officers in the State.

2. The relevant brief facts for adjudication of the issue involved in the present case are that the applicant, a permanent resident of Bihar, is an IAS Officer of 2022 Batch (under training), West Bengal Cadre. She got married to her batch-mate, namely, Shri Shubham Ashok Bhaisare, IAS:Rajasthan:2022 on 3.7.2023. In view of her marriage, the applicant became eligible for making a request for change of her Cadre in the IAS from West Bengal cadre to Rajasthan cadre as per the consolidated guidelines on the change of cadre of All India Service Officers-Policy vide OM dated 11.11.2022 of Govt. of India, DoP&T. Accordingly, the applicant made a representation/application dated 13.7.2023 (Annexure A-1) for change of her cadre on marriage grounds in terms of the aforesaid Policy from West Bengal Cadre to Rajasthan Cadre. The same was considered by the competent authority of Govt. of West Bengal but her request for inter-cadre transfer was rejected on the ground of shortage of IAS Officers in the State Cadre vide impugned order dated 20.7.2023 and instead they have conveyed their No Objection, for the spouse of the applicant, namely, Shri Subham Ashok Bhaisare, IAS (Rajasthan:2022) joins West Bengal cadre from Rajasthan Cadre on inter cadre transfer. Being aggrieved, the applicant has filed the present OA under Section 19 of the Administrative Tribunals Act, 1985, citing the judgments of the Hon'ble High Court of Delhi as well as of this Tribunal in support of her claim, for seeking the following reliefs:-

"(i) allow the present application of the Applicant and on perusal of the records and after hearing the parties; and

(ii) Quash the impugned order dated 20.07.2023, whereby the cadre change request of the applicant was rejected by the respondent no.2.

(iii) To declare the action of respondent no.2 in rejecting the NOC and thereby delaying the joining of applicant in Rajasthan Cadre as unfair and issue appropriate directions to Respondent No. 2 to issue NOC within the 4 weeks and relieving to join the Rajasthan Cadre.

(iv) To direct the respondents to complete the requisite exercise of change of cadre of applicant from West Bengal to State of Rajasthan without any delay and by following the same analogy as followed in the case of Arsh Verma, Bhavna Gupta, Loganayagi Divya V. and Gandharva Rathore.

(v) Such other and further order which their Lordships of this Hon'ble Tribunal deem fit and proper may please be passed."

3. Pursuant to notice from this Tribunal, respondent no.2 has filed reply. On 10.10.2023 when this matter came up for hearing, Shri R.K. Jain, learned counsel appearing for Respondent No. 1 (DoP&T) has made a statement that DOP&T has no role to play at this stage and therefore, he does not want to file any reply on behalf of Respondent No. 1 and applicant's counsel made statement that she does not wish to file any rejoinder to the reply filed on behalf of Respondent no.2 (State of West Bengal).

4. In the reply filed on behalf of respondent No. 2, it is stated that the applicant is now on district training in Jalpaiguri, West Bengal as Assistant Magistrate & Assistant Collector, which is not regular posting of IAS Officer. The applicant being an IAS Probationer of 2022 has requested for No Objection Certificate for change of her cadre from West Bengal cadre to Rajasthan cadre in terms of Rule 5(2) of the Indian Administrative Service (Cadre) Rules, 1954 on the ground of her marriage with Shri Subham Ashok Bhaisare, IAS (RJ:2022), an officer of Rajasthan Cadre. After due consideration of the same, the respondent no.2 intimated the applicant expressing its inability to accede to her prayer for inter-cadre transfer from West Bengal cadre to Rajasthan cadre on account of shortage of IAS Officers in the State cadre vide letter dated 20.7.2023 and that in spite of taking steps to fill the requisite sanctioned strength, the State still needs sizeable strength for proper administration and for ensuring the maintenance of the law and order in the State, as the Cadre strength of IAS Officers in the State of West Bengal is 378 while the actual number of IAS officers presently in position is 303 only. As such they are not agreeable for such inter cadre transfer. However, they have no objection, if the spouse of the applicant, namely, Shri Subham Ashok Bhaisare, IAS :RJ:2022 joins West Bengal cadre from Rajasthan cadre.

5. During the course of hearing, Shri Jain, learned counsel appearing for respondent No. 1, has submitted that no action is pending on the part of the respondent No. 1, as the Govt. of West Bengal did not agree to grant No Objection to the applicant for her inter-cadre transfer and action is required at the end of the respondent No. 1 on receipt of 'NOC' from the respondent No. 2.

6. Ms. Bhattacharjee, learned counsel appearing for respondent no.2, has reiterated the submissions as noted hereinabove. However, she again stressed that as there is an acute shortage of IAS Officers in the West Bengal Cadre, the Govt. of West Bengal has regretted to grant No Objection to the request of the applicant for his cadre transfer from West Bengal to Rajasthan Cadre. She has further submitted that earlier OMs on the subject were superseded by OM dated 11.11.2022 on the subject of 'Consolidated guidelines on change of cadre of All India Service Officers-Policy regarding', however, she has not disputed that in terms of the OM dated 11.11.2022 also, it has been provided that Inter-cadre transfer shall be permitted for members of All India Service officers on marriage to another member of an All India Service, where the officer or officers concerned have sought a change. Inter-cadre transfer shall also be permitted on grounds of extreme hardship in the rarest of cases. She has submitted that State of Rajasthan has already given their NOC vide communication dated 18.07.2023 (Annexure A-7)

7. In rebuttal to the aforesaid contentions of the learned counsel appearing for the respondent no.2, Ms. Archana Surve, learned counsel for the applicant, has drawn our attention to a catena of judgments of the Hon'ble Delhi High Court as well as of this Tribunal to contend that all the grounds as raised by the respondent No. 2 in reply to the instant OA have been considered and rejected by the Hon'ble High Court of Delhi while deciding the following cases as well as by this Tribunal:-

(i) W.P. (C) No. 11966/2018, titled The State of West Bengal vs. Raj Karan Nayyar and another, decided on 2.11.2018;

(ii) W.P.(C) No. 13444/2019, titled Bhavna Gupta vs. The Union of India and others, decided on 3.2.2020;

(iii) W.P. (C) No. 4048/2021, titled State of West Bengal vs. Gandharva Rathore and others, decided on 28.5.2021;

(iv) W.P. (C) No. 5533/2021, titled Lakshmi Bhavya Tanneeru vs. Union of India and others, decided on 16.11.2021

(v) W.P. (C) No. 2262/2022, titled Govt. of West Bengal vs. Arsh Verma and others, decided on 7.4.2022;

(vi) W.P.(C) No. 3137/2023, titled State of West Bengal vs. Sagar and another, decided on 15.3.2023;

(vi) OA No. 2061/2021, titled Renu Sogan vs. Union of Indian and another, decided on 31.8.2022; and

(vii) OA No. 3290/2022, titled Sagar vs. Union of India and another, decided on 13.2.2023;

8. We have carefully gone through the pleadings available on record and have considered the submissions made by the learned counsels for the parties.

9. The facts as noted in paras as above are not in dispute. The learned counsels for the respondents have not disputed that the grounds for not issuing No Objection to the applicant as raised in the instant case by the respondent no.2 have already been dealt with by the Hon'ble Delhi High Court in Arsh Verma (supra), the relevant portion of the said Order/Judgment reads as under:-

"4. The learned counsel for the petitioner states that: i) there is an extreme shortage of officers since a number of officers have sought transfer from West Bengal Cadre on various grounds, including the ground on account of their marriage to officers belonging to other State cadres; ii) the petitioner is a male and there are no urgencies of duties towards the family which could require the State to relieve him and iii) it is the discretion of the State to do so in light of the fact that there is a shortage of officers in the State.

5. On the other hand, the learned counsel for the respondent no. 1 submits that the respondent has not been able to start a family, as his wife is posted in a different State, nor is he able to take care of his family and his ailing widowed mother; he says that he needs to be stationed at the same place as them. He further submits that while deciding such cases, the authorities may well keep it in mind that the young officers, who are stationed at different places having different State Cadres will find it difficult to even start their family.

6. The learned counsel for the respondent no. 2 submits that the issue raised by the petitioner in the present case is no longer res integra and the same has been decided by the various judgments of this Court.

7. The issue raised in this petition stands decided against the petitioner herein by way of the following Division Bench judgments:

(i) In Bhavna Gupta vs. The Union of India & Ors., [W.P.(C) No. 13444/2019 decided on 3.02.2020]: The relevant portion of the same is reproduced herein below:-

"11. Reading of the above-cited Government Policy leaves no room for doubt that the same would apply to the petitioner. The petitioner waited patiently for two years after making her first representation to the State of West Bengal; and only after having received no response did she approach the Tribunal. The Tribunal granted six weeks time to the State of West Bengal to consider the petitioner's representation; however no response has yet been received to that representation.

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13. Counsel for the State of West Bengal now submits that a 'No Objection' cannot be granted in view of certain proceedings pending before the Calcutta High Court. With the highest regard for the Calcutta High Court and with full deference to the comity of courts, we have queried counsel for the State of West Bengal to point-out any order where the Calcutta High Court has restrained the transfer of the petitioner; or by which the petitioner has been ordered to remain present in court; or any order to even show that the petitioner's presence is necessary in West Bengal for the proceedings pending in court. No such order or direction or requirement has been brought to our notice.

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16. In view of the above, we dispose of this petition directing that the petitioner be relieved within two weeks from the date of receipt of this order."

(ii) In Ms. Loganayagi Divya V. vs. Union of India & Ors., [WP(C) No. 3927/2020 decided on 22.7.2020}. It was directed inter alia, as under:-

"4. In our view, there can be absolutely no justification for the State of West Bengal not relieving the petitioner to enable her to join the IPS Cadre in the State of Odisha. This shows complete apathy on the part of the State of West Bengal-which cannot be countenanced. We are left with no alternative, but to issue directions to enable the petitioner to join her post in the IPS Cadre in the State of Odisha.

5. Accordingly, we declare that the petitioner stands forthwith relieved from her post in the IPS Cadre of the State of West Bengal. No further orders would be required to be passed by the State of West Bengal in this regard. We direct the State of Odisha to treat this order as a relieving order of the petitioner to enable her to join her post in the IPS Cadre in the State of Odisha."

(iii) In The State of West Bengal vs. Raj Karan Nayyar & Anr., [WP(C) No. 11966/2018 decided on 02.11.2018).

It was directed, inter alia, as under:-

"Considering the overall circumstance, we grant time to the petitioner up to 28.02.2019 to relieve the respondent No. 1 so that he can join his services with the State of U.P. It is made clear that no further extension shall be sought or granted and, in case, no express order is passed relieving the respondent No. 1 from his services by the State of West Bengal, he shall be deemed to have been relieved on 28.02.2019 and it shall be open to him to join the services with the State of U.P.

8. Keeping in view the aforesaid mandate of law, the present writ petition is dismissed and the State of West Bengal is directed to relieve the respondent no. 1 within eight weeks. In the event, the respondent no. 1 is not relieved within the aforesaid stipulated period, she shall be deemed to have been relieved by virtue of the order of this Court."

8. In a recent judgment in the case of S K Nausad Rahaman & Ors. Vs. Union of India & Ors., reported in 2022:INSC:287, a similar issue arose and the Supreme Court has observed as under:-

"...55. The State in the present case has been guided by two objectives: first, the potential for abuse of ICTs and second, the distortion which is caused in service leading to plethora of litigation. The State while formulating a policy for its own employees has to give due consideration to the importance of protecting family life as an element of the dignity of the person and a postulate of privacy. How a particular policy should be modulated to take into account the necessities of maintaining family life may be left at the threshold to be determined by the State. In crafting its policy however the State cannot be heard to say that it will be oblivious to basic constitutional values, including the preservation of family life which is an incident of Article 21.

56. The circular dated 20 September 2018 has taken into account, what it describes "exceptional circumstances" such as "extreme compassionate grounds". Leaving these categories undefined, the circular allows for individual cases to be determined on their merits on a case by case basis, while prescribing that transfers on a "loan basis" may be allowed subject to administrative requirements with a tenure of three years, extendable by a further period of two years. While proscribing ICTs which envisage absorption into a cadre of a person from a distinct cadre, the circular permits a transfer for a stipulated period on a loan basis. Whether such a provision should be suitably enhanced to specifically include cases involving:

(i) postings of spouses;

(ii) disabled persons; or

(iii) compassionate transfers, is a matter which should be considered at a policy level by the Board.

57. In considering whether any modification of the policy is necessary, they must bear in mind the need for a proportional relationship between the objects of the policy and the means which are adopted to implement it. The policy above all has to fulfill the test of legitimacy, suitability, necessity and of balancing the values which underlie a decision making process informed by constitutional values. Hence while we uphold the judgment of the Division Bench of the Kerala High Court, we leave it open to the respondents to revisit the policy to accommodate posting of spouses, the needs of the disabled and compassionate grounds. Such an exercise has to be left within the domain of the executive, ensuring in the process that constitutional values which underlie Articles 14, 15 and 16 and Article 21 of the Constitution are duly protected...."

9. It may be noted here that in the present case, the petitioner had already obtained a No Objection Certificate vide letter dated 20.08.2019 whereby the State of Haryana conveyed its agreement for the transfer of the Respondent no. 1 to the Haryana cadre where his wife is posted as an IPS Officer. However, despite repeated requests, his representation has been turned down and a No Objection Certificate has not been granted by the State of West Bengal.

10. Keeping in view, the mandate of law as discussed above, the right to a healthy family life, to start a family and the right to parenthood have to be respected while balancing the careers and duties of the officers concerned. Time and tide wait for none. Child-bearing age for the young couple should not be irretrievably prejudiced by the non-grant of a relieving order for the officers to start their family. Compassion is expected from the State.

11. The urgency of the present case is of starting a family at present, which cannot wait indefinitely depending upon the decision of the concerned authorities.

12. The present writ petition along with the application is dismissed and the State of West Bengal is directed to relieve the respondent no. 1 within a period of three weeks from the date of receipt of a copy of this order. In the event of the respondent no.1 not being relieved within the aforesaid stipulated period, he shall be deemed to have been relieved by the virtue of this order."

10. As also in the case of Sagar (supra), the Hon'ble Delhi High Court recently while upholding the Order/Judgment of this Tribunal observed as under:-

"9. The submission of Mr. Sunil Fernandes, learned counsel appearing for the State of West Bengal is by highlighting the fact that cadre strength in the State of West Bengal is presently much below the actual requirement and as such it is not possible to consent for transfer of cadre. He would also rely upon paragraph (iii) of the DoP&T OM which we have already reproduced above to submit that it is not obligatory on the part of the State of West Bengal to agree for an inter-cadre transfer of the respondent No. 1 to State of Rajasthan, when his wife can similarly seek transfer to the State of West Bengal.

10. We are not convinced by the submissions made by Mr. Fernandes for the simple reason that when it comes to inter-cadre transfer on the ground of marriage, some amount of discretion lies with the officers (husband and wife) to decide who amongst them shall seek transfer to a particular cadre. The discretion having been exercised by the respondent, the same cannot be interfered with. The plea of shortage of officers in West Bengal Cadre cannot be a ground to deny the request. In fact, the issue of inter cadre transfer is no more res integra in view of the judgement of this court in the case of Bhavna Gupta v. the Union of India & Ors., W.P.(C) 13444/2019, as has already been noted by the Tribunal, more specifically in paragraphs 11 and 13. In the State of West Bengal v. Raj Karan Nayyar and Anr., W.P.(C) No. 11966/2018, decided on November 1, 2018, similar view was taken by this Court.

11. Given the settled position of law, we are of the view that the Tribunal is justified in giving directions as it has given in paragraph 14, which we have already reproduced above.

12. This Court is of the view that the order of the Tribunal needs no interference. The writ petition is devoid of merit. The same is dismissed. No costs."

11. From the aforesaid judgments of the Hon'ble High Court of Delhi in a catena of cases, it is evidently clear that plea of shortage of officers raised therein has been found not to be justified, for non-relieving of officer(s) for inter-cadre transfer requested on the ground of marriage. As such the relevant Rules/Policy and/or the law, in no manner entitle the respondents to dictate the All India Service Officers that whether husband or the wife should seek the cadre transfer.

12. The present claim of the applicant is neither regarding seeking transfer nor for posting of her choice nor is the same a case of request of the cadre allocation.

13. Accordingly, the grounds taken by the respondent No. 2 for not acceding to the aforesaid request of the applicant for inter-cadre transfer from West Bengal to Rajasthan are not sustainable in the eyes of law.

14. In view of the aforesaid facts and circumstances of the case, we are of the considered view that the applicant deserves to have a No Objection Certificate from Respondent No. 2 for inter-cadre transfer to Rajasthan cadre. It is also pertinent to mention that in a number of earlier cases, this Tribunal had remitted the matter to the respondent no.2, i.e., Govt. of West Bengal, for re-considering grant of NOC. However, it is evident that the respondent No. 2 has already indicated its view that NOC can't be issued, any such further direction in the present case will not serve any purpose. We have also come across the situation when the respondent no.1 has passed order for cadre transfer of an All India Service officer on the ground of marriage and order for relieving the officer, the respondent no.2 has not relieved the officer to join the new cadre despite the dismissal of the SLP by the Hon'ble Apex Court.

15. In the result, for the foregoing reasons, the present OA is partly allowed and the respondent no.2 is directed to grant No Objection Certificate to the applicant within a period of two weeks from the date of receipt of a copy of this Order, failing which 'No Objection Certificate' (NOC) shall be deemed to have been issued by the respondent No. 2, and thereafter the competent authority amongst respondent no.1 is directed to take immediate action for cadre transfer of the applicant from West Bengal Cadre to Rajasthan Cadre by passing necessary order(s) in this regard within four weeks. Once the cadre transfer is ordered by the respondent No. 1, the respondent No. 2 shall relieve the applicant to enable her to join the State of Rajasthan within the time frame as ordered by the respondent No. 1 or within two weeks of the necessary order of respondent No. 1 in this regard.

16. The OA stands partly allowed in the aforesaid terms. However, there shall be no order as to costs.