Transfer of Property Act (TPA)
Transfer of a Public Office and the Salary of a Public Officer under Section 6(f), with Pensions under Section 6(g)
A public office is not a species of property. It is a trust conferred so that a duty may be performed, and it carries a salary intended to keep the officer independent and maintained while he performs it. Section 6(f) puts both beyond the reach of a transfer, and does so in unusually wide terms: the salary cannot be assigned whether before or after it has become payable. Clause (g) adds pensions and political stipends. Read together, the two clauses take an entire class of public entitlements out of the market.
Figure 1: The three entitlements the clauses protect, where the protection stops, and the contrast with accrued maintenance
1. The Clauses
Sections 6(f) and 6(g), TPA (f) 'A public office cannot be transferred, nor can the salary of a public officer, whether before or after it has become payable.' (g) 'Stipends allowed to military, naval, air-force, and civil pensioners of the Government and political pensions cannot be transferred.' |
2. What Is a Public Office
The Act does not define the expression. The working definition is taken from section 2(17) of the Code of Civil Procedure, 1908, which defines a 'public officer' to include, among others, judges, members of the civil and military services, officers of a court whose duty it is to investigate or report on matters of law or fact or to execute process, and every officer in the service or pay of the Government or remunerated by fees or commission for the performance of a public duty. Three marks are usually present.
- The office carries a public duty. The holder does something on behalf of the State or for the public, not merely for a private employer.
- It is created or recognised by law. The office exists independently of the person who happens to fill it.
- It carries remuneration attached to the office. Salary, fees or commission paid for the performance of the duty.
3. What the Clause Forbids
The transaction | Effect |
|---|---|
An officer purports to sell or assign his office to another | Void. The office is a trust; the duty cannot be bought by one man and discharged by another |
An officer assigns his future salary to a creditor | Void — the clause covers salary before it has become payable |
An officer assigns salary already earned and due but not yet drawn | Also void — the clause says 'whether before or after it has become payable'. This is what distinguishes it from an ordinary debt |
An officer agrees to charge his salary as security for a loan | Bad in substance; an agreement to create a charge on what cannot be transferred cannot be enforced against the salary |
A pensioner assigns his pension | Void under clause (g), and see also section 11 of the Pensions Act, 1871 |
An officer spends, lends or gives away money he has already been paid | Perfectly good — once received, it is ordinary money and no longer salary or pension |
4. The Sharpest Contrast in Section 6: Clause (f) Against Clause (dd)
Both clauses protect a personal entitlement, but they draw the line at different places, and the examiner exploits it.
Salary of a public officer — s. 6(f) | Maintenance — s. 6(dd) | |
|---|---|---|
Future entitlement | Not transferable | Not transferable |
Amount already accrued and due | Still not transferable — the clause covers it expressly | Transferable — what has accrued is a debt and an actionable claim |
Reason for the difference | The officer's independence must be protected continuously; a creditor waiting at the treasury would compromise it | The policy protects future subsistence only; past arrears are simply money owed |
Money once received | Ordinary property, freely transferable | Ordinary property, freely transferable |
5. Attachment, and the Parallel Protections
The prohibition on transfer is matched by restrictions on what a creditor may seize.
- Salary. Section 60 of the Code of Civil Procedure exempts a specified portion of the salary of a public officer, and of a servant of a railway company or local authority, from attachment in execution of a decree — with a more limited exemption where the decree is for maintenance.
- Pensions. Section 60 also protects stipends and gratuities allowed to pensioners of the Government, and section 11 of the Pensions Act, 1871 declares that no pension granted or continued by Government on political considerations or on account of past services shall be liable to seizure, attachment or sequestration by process of any court at the instance of a creditor.
- The common thread. What may not be taken from the officer by his creditors ought not to be capable of being given away by him in advance; otherwise the exemption would be defeated by the first loan he took.
6. What the Clauses Do Not Cover
Entitlement | Position |
|---|---|
The salary of an employee in private employment | Not within clause (f). Once accrued it is a debt and may be assigned, subject to the contract of employment and to any statute |
A pension payable by a private employer or a private trust | Not within clause (g), which speaks of pensioners of the Government and political pensions |
Money already paid into the officer's or pensioner's hands | Ordinary property; the protection is spent once the payment is made |
A gratuity or provident fund amount | Governed by the statute that creates it — the Provident Funds Act and the relevant service rules commonly contain their own protection against assignment and attachment |
An office that carries no public duty, such as a purely honorary position | Not a public office for this purpose, though it may be personal within clause (d) |
7. Why the Law Takes This View
- An office is a trust, not an asset. It is conferred on a person because he is thought fit to perform its duties; permitting sale would mean the public gets the officer who paid the most rather than the officer chosen.
- Independence. An officer whose salary is pledged to a creditor serves two masters. The protection exists as much for the public as for him.
- Efficiency and maintenance. Salary is granted so that the officer may live decently and give his whole attention to his duty; an officer who has assigned it away has neither.
- Pensions are deferred maintenance. They are granted for the personal support of the pensioner after service, and the policy of clause (dd) applies to them with equal force.
Retention aid Office, salary, pension — all three are stamped. And remember the one line that distinguishes clause (f) from every other personal entitlement in section 6: before or after it has become payable. Arrears of maintenance may be sold; arrears of a public officer's salary may not. |
8. Related Topics and Provisions
- What May Be Transferred, Section 6 — the general rule and the other exceptions
- Right to Future Maintenance, Section 6(dd) — the clause with which clause (f) is most usefully compared
- Restricted Interest, Section 6(d) — interests personal to their holder in private law
- Section 2(17), Code of Civil Procedure, 1908 — the definition of a public officer
- Section 60, Code of Civil Procedure, 1908 — salaries and pensions exempt from attachment
- Section 11, Pensions Act, 1871 — the statutory protection of Government pensions