Full Judgment Text
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CASE NO.:
Special Leave Petition (civil) 20706 of 2006
PETITIONER:
Prabir Banerjee
RESPONDENT:
Union of India and others
DATE OF JUDGMENT: 05/10/2007
BENCH:
Altamas Kabir & D.K.Jain
JUDGMENT:
J U D G M E N T
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:
\023F.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,
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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 \026
Issuance of Instructions \026
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 \021B\022, \021C\022 and
\021D\022 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,
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Sd/-
(S.K. Thakur)
Under Secretary to the Govt. of India\024
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 \021B\022 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:
\023F.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 \026
Issuance of Instructions \026
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,
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Sd/-
(S.K. Thakur)
Under Secretary to the Govt. of India\024
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
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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
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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 \021B\022 and \021C\022 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 \021B\022 and \021C\022
employees belonging to the Ministerial cadre whereas the
Collector of Central Excise, Indore, was made the Cadre
Controlling Authority in respect of Group \021B\022 and \021C\022
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 \021B\022 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 \021B\022
and \021C\022 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,
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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 \021B\022, \021C\022 and \021D\022
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 \021B\022, \021C\022 and \021D\022 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 \021B\022, and \021C\022 cadres relating to Nagpur
and Indore cadres the Board took a decision that cadre
control of the said two Collectorates would be distributed
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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 \021B\022 and \021C\022 Ministerial
Cadres, the Collector of Central Excise, Indore was made
the Cadre Controlling Authority of executive cadres of
Group \021B\022 and \021C\022. 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 \021B\022 level staff, and its
functions would include monitoring the implementation of
the Board\022s 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 \021B\022 and \021C\022 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.