Prabir
Banerjee Vs. Union of India and Others [2007] Insc 1009 (5 October 2007)
Altamas
Kabir & D.K.Jain Altamas Kabir,J.
The
petitioner in the instant special leave petition was one of two petitioners who
had filed writ petition No.3622 of 2005 in the High Court of Madhya Pradesh, Indore
Bench, calling in question the legal propriety of an order dated 13.9.2005
passed by the Central Administrative Tribunal, Jabalpur Bench, in
O.A.No.6002/2005. The writ petitioners had approached the Tribunal for quashing
of the order of transfer by which they were transferred from Indore to Nagpur. The challenge to the order of transfer was made on the
ground that inter-zonal transfer was prohibited in the Department of Central
Excise and Customs and hence the impugned transfer order was void and was
liable to be quashed.
In
order to appreciate the case made out by the writ petitioners before the High
Court it will be necessary to set out a few facts relating to the case.
Appearing
for the petitioner Prabir Banerjee, Mr. Mukul Rohtagi, learned Senior Advocate
submitted that the petitioner had been appointed as Inspector, Central Excise,
in 1982. Subsequently, in 2003 he was promoted to the post of Superintendent
under the Bhopal zone which comprised of the Commissionerates
of Bhopal, Indore and Raipur. On 19.2.1994 the Department of Revenue in the Ministry of
Finance, Government of India, issued a circular addressed to amongst others all
the Chief Commissioner of Central Excise containing certain instructions
regarding the discontinuance of inter-Commissionerate transfers. Since much of
the submissions made in this matter revolve around the said circular, the same
is reproduced hereinbelow:
F.No.
A 22015/03/2004 AD IIIA GOVERNMENT OF INDIA MINISTRY OF FINANCE DEPARTMENT OF
REVENUE New Delhi, the 19th February 2004 To All Chief Commissioner of Customs,
All Chief Commissioner of Central Excise, All Commissioner of Customs, All
Commissioner of Central Excise, All Directors General/ Directors Commissioner,
Central Bureau of Narcotics, Gwalior (all by name) Subject : Inter Commissionerate
Transfers Issuance of Instructions regarding their discontinuance etc.
Sir/
Madam, It would be recalled that hither to inter-Commissionerate transfer (i.e.
transfer from one cadre controlling authority to another) of Group B,
C and D employees were taking place on compassionate
grounds. These powers had been delegated to the Head of Departments subject to
the conditions laid down in F.No. A22015/34/8-0-Ad III B dated 20.5.1980. Since
inter-Commissionerate transfers have caused certain administrative difficulties
resulting in protracted litigation, the matter has been reviewed by the Board
in detail.
Accordingly,
in supersession of all the previous instructions issued on the subject in the
past, it has been decided that hence forth no inter-Commissionerate transfer
shall be allowed for any Group B, C and D employee. Instead, in exceptional
circumstances depending upon the merits of each case where it is considered
necessary to accept such requests on extreme compassionate grounds, such
transfers shall be allowed on deputation basis for a period three years subject
to the approval of the transfer and transferee cadre controlling authorities.
Further extension of depuration period can be made up to one year by the
Commissioner and for a further period of one year by Chief Commissioners
concerned on mutually agreed basis. Such transfers shall be with the specific
condition that no deputation allowance shall be admissible for deputation period
including extended period, if any. Where ever required, necessary amendments in
recruitment rules are under approval and shall be issued subsequently.
This issues
with the approval of the Board Receipt of these instructions may please be
acknowledged.
Yours
faithfully, Sd/- (S.K. Thakur) Under Secretary to the Govt. of India From
the said circular it will be seen that the Board after reviewing the existing
policy relating to inter- Commissionerate transfers took a decision whereby in supersession
of all the provisions /instructions issued on the subject in the past, no
inter-Commissionerate transfer would thenceforth be allowed for any Grade B, C
and D employee. Even with regard to the cases where requisitions were made on
extreme compassionate grounds such transfers could be allowed on deputation
basis for a period of 3 years subject to the approval of the Transfer and
Transferee Cadre Controlling authorities. As indicated hereinbefore the
petitioner was promoted to the post of Superintendent in 2003, which is a
B category post.
The
said circular was subsequently amended by another Circular issued by the
Department of Revenue on 9th
March, 2004 which is
reproduced hereinbelow:
F.No.
A 22015/03/2004 AD IIIA GOVERNMENT OF INDIA MINISTRY OF FINANCE DEPARTMENT OF
REVENUE New Delhi, the 9th March, 2004 To All Chief Commissioner of Customs,
All Chief Commissioner of Central Excise, All Commissioner of Customs, All
Commissioner of Central Excise, All Directors General/ Directors Commissioner,
Central Bureau of Narcotics, Gwalior (all by name) Subject : Inter Commissionerate
Transfers Issuance of Instructions clarification regarding.
Sir/
Madam, I am directed to refer to this office circular of even number dated
19.2.2004 on the subject cited above and to say that some references have been
received seeking clarification regarding inter- Commissionerate transfers
within the same zone. It is therefore, clarified that inter-Commissionerate
transfers amongst the Commissionerates having common cadre where there is no
loss of seniority involved, may be allowed to continue as hitherto.
This
issues with the approval of the Board Yours faithfully, Sd/- (S.K. Thakur)
Under Secretary to the Govt. of India By virtue of said amendment it was
clarified that inter-Commissionerate transfers amongst the Commissionerates
having common cadre, where there was no loss of seniority, could be allowed to
continue as before.
Pursuant
to the promulgation of the aforesaid circulars an order, being Office Order
No.1/2005 dated 31.3.1995 was issued by the Chief Commissioner of Customs and
Central Excise, M.P. and Chhattisgarh States, whereby along with 55 other officers the petitioner was
transferred from the Indore Commissionerate to the Nagpur Commissionerate. It
is this order which was challenged by the petitioner and others before the
Central Administrative Tribunal on the ground that although inter-Commissionerate
transfers were permitted the same did not permit the authorities to also effect
inter-zonal transfers which had been prohibited.
After
considering the submissions made on behalf of the respective parties and the
various circulars issued by the Central Board of Excise and Customs, and in
particular the Circular/instructions dated 10th September, 1990, which provides
for common cadre of Superintendents of the Bhopal and Nagpur Commissionerate
under the Chief Commissioner, Bhopal, as the Cadre Controlling Authority, the
Tribunal dismissed the application filed by the petitioner herein.
As
mentioned hereinabove the said order of the Central Administrative Tribunal was
impugned by the petitioner herein along with one Mahender Singh by filing Writ
Petition No.3622/05 before the High Court of Madhya Pradesh, Indore Bench.
During
the hearing of the writ petition the main submission made on behalf of the writ
petitioner was that transfer from one zone to another zone was prohibited by
the Department itself and the impugned transfer order being in violation of the
declared policy of the Department was liable to be quashed. On the other hand,
the order of the Tribunal was strongly supported by the respondents on the
ground that inter-zonal transfer was permitted, inasmuch as, constitution of a
zone was for the purpose of revenue and had nothing to do with transfer which
is an incident of service. It was also urged on behalf of the respondents that
even if the petitioners were transferred to the Nagpur zone their seniority would not be affected in any way.
Having
regard to the submissions made the High Court observed that the grievance of
the petitioners was based on the apprehension that their seniority would be
affected.
However,
relying on the decision of this Court in the case of Shilpi Bose vs. State of
Bihar (AIR 1991 SC 532), the High Court ultimately came to the conclusion that
transfers made in administrative exigencies or in public interest or for smooth
functioning of the system did not warrant any interference under Articles 226
and 227 of the Constitution of India. Several other decisions on the same issue
were also referred to and the writ petition was disposed of with leave to the
petitioners to submit a representation to the competent authority within a
period of four weeks from the date of the order, with a further direction that
the said representation was to be disposed of within a period of four weeks
from the date of receipt of the same.
Since
the main contention of the writ petitioners was that inter-zonal transfers were
not permitted by virtue of the policy of the Central Board of Excise and
Customs, the High Court, instead of adverting to the said issue went into a
separate issue regarding transfer in Central Government services wherein
transfer is an incident of service and wrongly permitted the petitioners to
file representation before the Department against the order of transfer under
challenge.
Aggrieved
by the order of the High Court one of the petitioners, namely, Prabir Banerjee,
has filed this special leave petition on the same grounds as urged before the
Tribunal and reiterated before the High Court.
Appearing
in support of the special leave petition, Mr. Mukul Rohtagi, Senior Advocate,
appearing with Dr. Abhishek M. Singhvi, Senior Advocate, urged that both the
Tribunal as well as the High Court failed to appreciate the main plank of
challenge made on behalf of the petitioners, namely, that inter-zonal transfers
have been prohibited and since the Nagpur zone was a separate zone from the
Bhopal zone the transfer order had been made in violation of the policy of
transfer.
It was
urged that instead of deciding the aforesaid question raised on behalf of the
writ petitioners, the High Court went into a broader issue regarding transfer
being an incident of service under the Central Service Rules. Mr. Rohtagi also
urged that in the absence of any Rules framed by the Central Board of Excise
and Customs the instructions issued by the Board from time to time would have
to be applied in respect of the employees of the Department.
Conceding
that transfer was an incident of service in the Central services, Mr. Rohtagi
urged that the said principle would not apply in this case in view of the
existence of definite instructions issued by the Board in this regard.
It was
urged that the High Court appears to have missed this aspect of the matter and
had relied solely on the decision of this Court in the case of Shilpi (supra)
and certain other decisions namely
(i)
S.B.I. vs. Anjan 2001 (5) SCC 508;
(ii)
National Hydro Electric Power Corporation Ltd. vs. Shri Bhagwan (2001 (8) SCC
574);
(iii)
Union of India vs. Janardan Debnath (2004 (4) SCC 245);
(iv)
State of U.P. vs. Siya Ram (2004 (7) SCC 405), in
arriving at the conclusion that the writ petitioner would only be entitled to
make a representation to the competent authority regarding the order of
transfer.
Appearing
for the respondents, Mr. B. Dutta, learned Additional Solicitor General, took
us to the various circulars issued by the Department of Revenue in the Ministry
of Finance, Government of India, which had also been referred to by Mr. Rohtagi,
relating to inter- Commissionerate transfers of Grade B, C and D employees. In
support of his contention that inter-zonal transfers in the Department of
Customs and Central Excise were permissible, the learned Additional Solicitor
General urged that services under the said Department was an all India service
wherein transfer was an incident of service to which the petitioner could not
legitimately object. The learned Additional Solicitor General also referred to
the communication from the Central Board of Excise and Customs to the Chief
Commissioner of Central Excise and the Chief Commissioner of Customs, as also
Central Excise and Customs, dated 16.1.2003, whereby it was declared by the
Board that all the powers being exercised by the respective Commissioners as
the Cadre Controlling Authority would thenceforth be exercised by the
respective Chief Commissioners. In addition to the above, the learned
Additional Solicitor General referred to the directions of the Board in its
communication dated 24.8.04 whereby it was indicated that pending decision on
the demand for bifurcation of group B and C cadres relating
to Nagpur and Indore Collectorates it had been decided that cadre control of
the said two Collectorates would be distributed between the two Collectors of Nagpur
zone and Indore zone.
The
Collector of Central Excise of the Nagpur zone was made the Cadre Controlling Authority of Group B and
C employees belonging to the Ministerial cadre whereas the Collector
of Central Excise, Indore, was made the Cadre Controlling Authority
in respect of Group B and C officers in the executive
cadres. The learned Additional Solicitor General added that of the officers
posts in the different Commissionerates the post of Superintendent was a Group
B post in the executive cadre and in respect of the two aforesaid Collectorates
the Collector of Central Excise, Indore, became the Cadre Controlling Authority of such employees in the
aforesaid Collectorates.
Referring
to the counter affidavit filed on behalf of the respondents, and in particular para
3 (V), he submitted that by virtue of notification No.14/2002 Central Excise
dated 8.3.2002, as amended, issued under Rule 3(2) of the Central Excise Rules,
2002, the statutory jurisdiction of the Chief Commissioner under the provisions
of the Central Excise Act, 1944 and the Rules framed thereunder have been
defined. He urged that the statutory jurisdiction was distinct from the
jurisdiction of the Chief Commissioner as Cadre Controlling Authority which had
been defined separately by way of administrative instructions. While the
statutory jurisdiction of the Chief Commissioner, Bhopal under the Central
Excise Act extended to the three Commissionerates of Bhopal, Indore and Raipur,
the Chief Commissioner, Bhopal, was designated as the Cadre Controlling
Authority for the combined cadre of Grade B and C of four Commissionerates,
namely, Bhopal, Indore, Raipur and Nagpur. It was also submitted that since the
jurisdiction of a Chief Commissioner as a Cadre Controlling Authority has not
been defined or circumscribed by any notification issued under Rule 3(2),
administrative instructions issued from time to time would have to be followed
in the absence of such statutory rules, as had been done in the instant case.
It was
submitted that the High Court had not committed any error in relying on the
principle that in Central Government Service transfer was an incident of
service and an employee was not entitled to question the impugned order of
transfer on such ground. Further, since the transfer order had been issued by
the Cadre Controlling Authority, namely, the Chief Commissioner of Central
Excise, Bhopal, who had been vested by the Board with authority to act as the
Cadre Controlling Authority in respect of the three Commissionerates within the
Bhopal zone and the Nagpur Commissionerate under the Nagpur zone, such order
was made validly and could not be interfered with on the ground of lack of
jurisdiction.
Having
considered the submissions made on behalf of the respect parties we are
inclined to agree with the stand taken by the respondents that while transfer
is an incident of service under the Central Service Rules, the petitioner has
no cause to complain in respect of the transfer order by which he was
transferred from the Bhopal zone to the Nagpur zone, as the same had been
passed by the Chief Commissioner of Central Excise, Bhopal zone, under powers
vested in him by the Board by its Circular dated 16.1.2003.
Although,
both the parties have relied upon the circular dated 19.2.2004 and 9.3.2004
issued by the Department of Revenue, in the Ministry of Finance, Government of
India, the said two circulars have little or no relevance to the facts at issue
in the instant case. The circular dated 19.2.2004 merely indicates that inter- Commissionerate
transfers of Group B, C and D employees were
taking place on compassionate grounds which had caused certain administrative
difficulties resulting in protracted litigation which caused the Board to
review the situation in detail. It is in that context that it was further
indicated that in supersession of all previous instructions issued on the
subject in the past from thenceforth no inter-Commissionerate transfer would be
allowed for any Group B, C and D employee.
Instead, in exceptional circumstances depending on merits of each case, such
transfers would be allowed on deputation basis for a period of 3 years, subject
to the approval of the transferring and transferee Cadre Controlling
Authorities.
The
other circular dated 9.3.2004 merely clarified the question of inter-Commissionerate
transfers within the same zone. In this context it was clarified that inter- Commissionerate
transfers amongst the Commissionerates having common cadre, where there was no
loss of seniority involved, such a practice would be allowed to continue.
In our
view, neither of the two circulars have any bearing and/or relevance to the
issues raised in the instant case where the central question is whether the
Chief Commissioner of the Bhopal Commissionerate was competent to transfer the
petitioner to a Commissionerate of a different zone, namely, Nagpur, except to
the extent of indicating that inter-Commissionerate transfers between Commissionerates
having a common cadre would be allowed to continue.
No
doubt transfer is an incident of service in an All India service and under the
Central Service Rules the Controlling Authority was competent to transfer the
petitioner to any place in India, where
it considered expedient to do so. But apart from the above, we also have to take
into consideration the decision of the Central Board of Excise and Customs in
its communication dated 24.8.1984 by which pending decision on the demand for
bifurcation of Group B, and C cadres relating to Nagpur and
Indore cadres the Board took a decision that cadre control of the said two Collectorates
would be distributed between the two Collectors as indicated in the said
communication. As mentioned hereinabove, while the Collector of Central Excise,
Nagpur, was made the Cadre Controlling
Authority of Group B and C Ministerial Cadres, the
Collector of Central Excise, Indore was
made the Cadre Controlling Authority of executive cadres of Group B
and C. We are alive to the fact that the decision taken by the Board
was an administrative decision, but in the absence of any direct Rule relating
to transfer between two Collectorates under the Central Board of Excise and
Customs, the said administrative instruction would have to be implemented
insofar as inter-Collectorate transfers between the Nagpur and Indore Cadre was concerned. In
fact, by subsequent circular dated 16.1.2003 the Board further declared that
the Chief Commissioner of Central Excise/Customs in a Commissionerate would be
the Cadre Controlling Authority up to Group B level staff, and its
functions would include monitoring the implementation of the Boards
instructions with regard to the transfers and equitable distribution of
man-power and material resources between the Commissionerates/zones.
The
learned Additional Solicitor General had strenuously urged that by virtue of
the communication dated 24.8.2004 the Collector of Central Excise, Indore, had
been made the Cadre Controlling Authority of executive cadres belonging to
Group B and C of the Nagpur and Indore Collectorates, which
empowers the Chief Commissioner of the Bhopal zone to exercise control over the
cadre both in respect of the three Commissionerates comprising the Bhopal zone
as also the Commissionerate of Nagpur falling within the Nagpur zone. It has
neither been pleaded nor has it been shown to us that the decision of the Board
as contained in the said circular of 24.8.1984 has since been rescinded or
altered and that the Chief Commissioner of the Bhopal zone is no longer the Cadre Controlling Authority of the Nagpur
Commissionerate.
In the
aforesaid circumstances, although the High Court has proceeded mainly on the
basis that in the Central Services transfer is an incident of service and has
not really dealt with the various circulars on the subject, we are not inclined
to interfere with the judgment and order of the High Court disposing of the
writ petition.
There
is also another aspect of the matter, namely, that pursuant to the leave
granted by the High Court to make a representation to the competent authority,
the petitioner herein made a representation for reconsideration of the transfer
order to the Chairman of the Central Board of Excise and Customs on 17.4.05. In
other words, the petitioner had submitted to the directions given in the
impugned judgment, thereby, disentitling him to question the decision rendered
by the High Court.
For
the aforesaid reasons, we dismiss the Special Leave Petition, but, in the facts
of the case, without any order as to costs.
Back