Proportionality in Culture of Justification II

Whether, and if so where, an employee should be posted are matters which are governed by exigencies of service; an employee has no fundamental right or a vested right to claim a transfer or posting of their choice; individual convenience of persons who are employed in service is subject to overarching needs of administration.

Court in exercise of judicial review cannot direct Executive to frame a particular policy. Yet, legitimacy of a policy can be assessed on touchstone of constitutional parameters. Moreover, short of testing validity of a policy on constitutional parameters, judicial review can certainly extend to requiring State to take into consideration constitutional values when it frames policies.

Two-Judge Bench of this Court in Lt. Col. Nitisha v. Union of India, 2021 SCC OnLine SC 261 emphasized, discrimination both direct and indirect is contrary to vision of substantive equality under Articles 14, 15 and 16; discrimination is not always a function or product of a conscious design or intent and may result by an unconscious bias or a failure to recognize unequal impacts which are produced by underlying societal structure.

State’s interference in rights of privacy, dignity, and family life of persons must be proportional. Court in Akshay N. Patel v. Reserve Bank of India, 2021 SCC OnLine SC 1180 held, framing of policy must meet an integrated proportionality analysis.

Hon’ble Justice Dr. D.Y. Chandrachud, SK Nausad Rahaman v. Union of India, [Civil Appeal No. 1243 of 2022].