Central Administrative Tribunal - Delhi
Sh. Amar Veer Singh vs Union Of India Through on 3 January, 2013
Central Administrative Tribunal Principal Bench New Delhi OA No.3305/2012 MA No.3091/2012 Reserved on : 05.12.2012 Pronounced on : 03.01.2013 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Sh. Amar Veer Singh S/o late Sh. Rajendra Singh, R/o 704, Palmgrove Apartment, F-5, Sector 50, NOIDA. .Applicant (Applicant in person) Versus 1. Union of India through Secretary Department of Revenue, North Block New Delhi. 2. Chairman, Central Board of Direct Taxes, Department of Revenue, Ministry of Finance, North Block, New Delhi. . Respondents. (By Advocate : Sh. R.N. Singh) O R D E R Dr. Ramesh Chandra Panda, Member (A):
This is the second round of litigation by the applicant. In the present OA he is assailing (i) the transfer order dated 04.09.2012 (Annexure A-1) transferring him from Faridabad to Chandigarh and (ii) the order dated 21.09.2012 (Annexure A-2) passed in compliance of Tribunals order dated 07.09.2012 (Annexure A-3) in OA No. 2956/2012 where the respondents were directed to consider his representation dated 05.09.2012 preferred against the aforesaid transfer order but the same has been rejected by the respondents in the aforesaid impugned order. Apart from the above, a direction is sought to be commanded to the respondents to produce the relevant records pertaining to the issuance of the impugned orders and to declare the applicant to be entitled to all consequential benefits.
2. When this matter came up for admission before the learned Single Member on 01.10.2012, following orders were passed:-
In this Application, the applicant assails the legality and correctness of the impugned order dated 21.9.2012 which has been passed by the respondents on the representation of the applicant made against his transfer from Delhi to Chandigarh in compliance with the directions issued by this Tribunal in OA No2956/2012. The main ground of attack taken in the Application is that a plain reading of the impugned order, as referred to above, would reveal that the transfer is bad for being stigmatic and punitive for the reasons of having been passed by the respondents on the basis of the confidential note received from the Directorate of Vigilance on administrative grounds. The applicant challenges the very existence of any such confidential note. It has further been submitted by the applicant that the complaint made in November, 2009 by one Shri B.P. Sharma was actually found pseudonymous and the complaint had been closed by the CBI. Furthermore, even after the receipt of such a complaint, the applicant had indeed been promoted which would not have been made, had the complaint been found to be correct. It has further been contended by the applicant that reliance on confidential note is indeed camouflage which has been resorted to by the respondents as an afterthought with a view to justify the impugned transfer. Reference in this regard may be made to grounds (B) and (E) of Para 5 of the Application which read as follows:-
B. Because in the impugned order dated 21.09.2012, the office of respondents have referred the basis for transfer as Confidential Note received from the Directorate of Vigilance. In this regard, it is submitted that the aforesaid reason does not germane from the original order of transfer dated 04.09.2012 by which, the applicant was transferred from Faridabad to Chandigarh as the name of the applicant has been reflected at Sl.No.84. It is further submitted that even the clauses 4.3(ii) and 7.1 of the Transfer Policy which have been invoked in the impugned order dated 21.09.2012, it is submitted that, those clauses were not referred while transferring the applicant through the original order dated 04.09.2012 and thus, it is clear that with a view to justify the transfer of the applicant, the aforesaid provisions have been referred in the impugned order dated 21.09.2012.
E. Because it is further submitted that to the knowledge of the applicant, there is no vigilance note from the Directorate of Vigilance as on date except some complaints which was made by one Sh. B.P. Sharma in the year 2009. It is submitted that the aforesaid complaint made on behalf of Sh. B.P. Sharma was later found to be pseudonymous complaint as this was made using the name of Sh. B.P. Sharma. It is submitted that as per the knowledge of the applicant, even, the complaint was examined by CBI and closed thereafter.
It is submitted that the aforesaid complaint was made in the year 2009 and the fact cannot be ignored that the applicant was promoted to the post of Commissioner of Income Tax in the year 2009 and thereupon, the applicant was transferred from Ghaziabad to Jammu Headquarters at Amritsar and thereupon, as CIT (A), Amritsar and in the year 2010, the applicant was transferred to Faridabad as CIT (A) to which post, the applicant joined on 16.8.2010. It is submitted that the aforesaid false complaint was of the year 2009 and the aforesaid knowledge was available to the office of respondents when the applicant was transferred to Faridabad in the year 2010. A copy of the covering letter as issued from the office of Addl. Director of Income Tax (Vig.) dated 23.11.2009 as addressed to CCIT (CCA), Kanpur is annexed as Annexure A-11.
2. In view of the aforesaid, the learned counsel for the applicant very strongly contended that a prima facie case has been made out in favour of the applicant, particularly, in view of the fact that there is no remark in the impugned transfer order to the facts which are referred to and relied upon by the respondents in the impugned order while justifying the impugned transfer.
3. In view of the aforesaid and having heard the learned counsel for the applicant in this regard, issue notice to the respondents, returnable on 12.10.2012.
4. In the meantime, the respondents shall not give effect to the impugned order qua the applicant until the next date of hearing.
3. In the meantime, the applicant preferred MA No.3091/2012 for summoning of certain records and MA No.3092/2012 for impleadment of Dr. Prabodh Seth, Commissioner of Income Tax as CIT (A) as an opposite party respondent claiming him as the necessary party as the respondents along with their counter reply filed his joining report dated 19.09.2012. Both the MAs were taken together in the Single Bench. The MA No.3091/2012 was disposed of on 07.11.2012 on the assurance given by the learned counsel for the respondents, on instructions from the Departmental representative, that the required documents would be placed before the Bench as and when called for. During the final hearing, the respondents fulfilled their commitment and placed before us the relevant files for our perusal. The MA No.3092/2012 was considered and rejected vide a detailed order dated 08.11.2012 by the Single Bench.
4. Though the controversy involved is to be considered by a Single Bench but on the request of the applicants counsel on the ground that Standing Order dated 18.12.1991 is to be interpreted, this came to be listed before this Division Bench vide order dated 26.11.2012. We have finally heard the case on 05.12.2012.
5. The brief factual matrix of the case relevant to address the issues involved in the OA would reveal that the applicant having been appointed to the Indian Revenue Service (Income Tax) [IRS(IT) in short] joined the office of the respondents as Assistant Commissioner of Income Tax (ACIT) in the year 1989 and earned various promotions and has reached to the Commissioner of Income Tax grade. He was posted as Commissioner of Income Tax (Appeals) [CIT(A)], Jammu with headquarter at Amritsar. On 14.07.2009, while posted as Commissioner of Income Tax (CIT) at Ghaziabad (UP), as per the Transfer Policy, it is the case of the applicant that since he was facing some medico disabilities, his request for transfer in relaxation of Transfer Policy on medical grounds was acceded to and he was transferred to Faridabad where the applicant joined as CIT(A) on 16.08.2010. It is pleaded that for the purpose of transfer/placement of the officers of the IRS (IT), the respondents issued the Transfer Guidelines namely Transfer/Placement Guidelines for Officers of the Indian Revenue Services, Central Board of Direct Taxes, 2010 (Guidelines 2010 in short) on 16.02.2010 and his transfer from Faridabad to Chandigarh ordered under the Guidelines-2010. It is stated that as per clause 4.3 of the said Guidelines-2010, the applicant will complete his 3 years of posting at Faridabad only on 16.08.2013. The Clause 4.3 provides as under:-
(i) All Group A officers shall be liable for transfer at the commencement of the Financial Year, if they have as on 31st December of the preceding year completed in field posting-
(c) 3 years of continuous stay in field postings in respect of other station. Citing the above provisions of Guidelines-2010, it is submitted that Faridabad comes under the Other Stations and the applicant having not completed three years at the same station, his transfer to Chandigarh vide order dated 04.09.2012 is in violation of the Transfer Policy/Guidelines. Being aggrieved, he submitted a representation dated 05.09.2012 and having no response from the respondents, he was compelled to approach the Tribunal by filing OA No. 2956/2012 assailing the transfer order which was disposed of vide order dated 07.09.2012 directing the respondents to place the representation of the applicant before the Placement Committee to take a decision on the same within a period of 15 days by passing a reasoned and speaking order, and till then protection to the extent that the impugned order of the transfer would not be given effect to, was granted. Pursuant to the aforesaid directions of this Tribunal, the respondents considered the representation and passed an order dated 21.09.2012 rejecting the same reciting therein that his transfer to Chandigarh was made on administrative grounds taking into consideration of a Confidential Note received from the Directorate of Vigilance recommending the aforesaid transfer from Faridabad which is a sensitive and high revenue yielding station. It is the case of the applicant that he has neither been apprised of the so-called Confidential Note nor called upon to have his version prior to his transfer. Therefore, the impugned transfer order is punitive in nature as the respondents have relied upon extraneous consideration and that too some confidential note received from the Directorate of Vigilance. It is further submitted that the applicant has been generally graded as Outstanding in the ACRs from 2008-09 onwards and even the integrity of the applicant has been beyond doubt and has never come across about any vigilance case pending against him. He, therefore, has instituted the instant Original Application.
6. Though the applicant was earlier represented by the learned counsel Sh. S.K. Gupta, but on the final date of hearing the applicant himself argued the case. He fairly narrated the facts of the case and placed the following main contentions in support of the relief(s) claimed by him in the present OA - (i) The applicant having not completed 3 years of tenure at Faridabad by transferring him in violation of clause 4.3(i)(c) of the Guidelines-2010, the respondents have committed malice in law. (ii) He submits that his transfer has been done on the administrative ground whereas in the counter reply affidavit filed by the respondents a Confidential Note received from the Directorate of Vigilance seems to have been the reason to transfer him in public interest. His contention is that the aforesaid reason is not germane from the original order of transfer dated 04.09.2012 by which he was transferred from Faridabad to Chandigarh as the applicants name appearing at serial number 84 did not indicate any ground in the last column of the order, and besides no such Confidential Note was placed before the Placement Committee while ordering his transfer. (iii) He further pleads that the invocation of Clauses 4.3(ii) and 7.5 of the Guidelines-2010 in the order dated 21.09.2012 does not find place in the general transfer order dated 04.09.2012. His contention is that the reference to the above clauses of the Guidelines-2010 are afterthought and not the reason for transferring the applicant. (iv) It is further submitted that the Directorate of Vigilance received some complaints made by one Sh. B.P. Sharma in the year 2009 which was, on enquiry, found to be a pseudonymous complaint and the same having been received by the CBI was considered, examined and closed. His contention is that despite the said complaint received in the year 2009, the applicant was promoted as Commissioner of Income Tax and posted to Jammu with Headquarter at Amritsar and on his personal request he was transferred to Faridabad as CIT(A) in the year 2010. In this regard, he drew our attention to the letter addressed by the Additional Director of Income Tax (Vig.) dated 23.11.2009 to CCIT (CCA) Kanpur, which is available at Annexure A-11. (v) He further alleges that the order dated 21.09.2012 is stigmatic and punitive as in para 3.2 of the aforesaid letter it has been indicated that the applicants transfer from Faridabad has been done on administrative ground as the said place is a sensitive and high revenue yielding station. His submission is that without giving him an opportunity in such punitive action, the transfer order is liable to be quashed. (vi) Another contention advanced by the applicant relates to the order dated 21.09.2012 which is not a reasoned or speaking order and the same being cryptic in nature is liable to be quashed. (vii) Further, he submits that there are many officers of his rank who are continuing in their respective position for long period even beyond 3 years and have not been disturbed whereas the applicant having put in less than 3 years has been disturbed from Faridabad. The discriminatory and arbitrary action of the respondents deserves to be set aside. (viii) Further, he submits that his two children are studying in Amity University and his transfer from Faridabad to Chandigarh would affect their studies as they are day scholars commuting from applicants residence, and dislocation of the applicant would put his children into difficulties. He, therefore, urges that in the interest of his childrens education he should be allowed to continue at Faridabad. (ix) He also drew our attention to the fact that the officer replacing him (Dr. Prabodh Seth) has been continuing at or near about Delhi and has managed to be posted at Faridabad replacing the applicant. Such action of the respondents in allowing a person to remain near about Delhi is deprecable. In view of the above contentions, the applicant argues to allow the Original Application by quashing and setting aside orders dated 04.09.2012 and 21.09.2012 with a direction to the respondents to allow the applicant to continue at Faridabad till completion of his full tenure of 3 years. In support of his contentions, the applicant placed his reliance on the following judgments of Honble Supreme Court and the Tribunal:-
Somesh Tiwari versus Union of India and Others [(2009)-2-SCC-592];
Kendriya Vidyalaya Sangathan versus Damodar Prasad Pandey and Others [(2004)-12-SCC-299];
Union of India and Others versus S.L. Abbas [1993-SCC-4-357];
Vijay Kumar Jiwani and Others versus Union of India and Others [OA No. 209/2008 and other connected OAs decided on 03.05.2008 by the Principal Bench];
Smt. Bonani Ghosh verus Union of India and Another [OA No. 2301/2008 decided in January, 2009 by the Principal Bench];
P.C. Gupta versus Union of India and Others [OA No. 2341/2008 decided on 20.04.2009 by the Principal Bench];
Mr. Vivek Batra versus Union of India and Others [OA No. 1661/2009 decided on 04.02.2010 by the Principal Bench];
Sangeeta Gupta versus Union of India and Others [OA No. 1941/2009 decided on 14.10.2009 by the Principal Bench];
Amit Sahai, IFS versus State of Assam and Others {2003(1)SLJ 152 [Guwahati Bench of CAT]}
7. Dr. Prabodh Seth, who was posted in place of the applicant, stood up during the final hearing to argue his case by stating that he was on deputation away from India and on return was being posted to Faridabad. Therefore, the allegations levelled against him by the applicant are not correct. In this regard, as the Single Bench of this Tribunal has considered the issue of impleadment of the private respondent (Dr. Prabodh Seth) and rejected the applicants MA in that regard, we declined to hear Dr. Prabodh Seth who replaced the applicant at Faridabad. At this stage Shri R.N. Singh, learned counsel for the respondents submits that the respondents are in a very peculiar situation as two officers are working against one post and those officers are being (1) Dr. Prabodh Seth, who has joined the post as per the transfer order dated 04.09.2012 and (2) the applicant continuing by virtue of the stay granted by this Tribunal earlier. He, therefore, urges to vacate the stay. We would consider this aspect in the later part of this order to find out whether the shifting of the applicant was the result of non-application of mind or not?
8. On receipt of the notice issued by this Tribunal, respondents have entered appearance through Shri R.N. Singh, learned senior Central Government counsel and filed their counter affidavit on 18.10.2012 wherein as many as eight objections have been taken, viz. (i) applicant has got all India transfer liability; (ii) the applicant must honour the order passed by the competent authority (iii) transfer is an incidence of service and cannot be interfered with by the Courts; (iv) Application is based on misleading and misconceived facts; (v) transfer order has been passed by the competent authority without affecting the applicants conditions of service (vi) applicant does not have prima facie and/or balance of convenience in his favour; (vii) there is no reason for this Tribunal to exercise its extra-ordinary power of judicial review; and (viii) the impugned order dated 21.09.2012 has been passed in compliance of the Tribunals order dated 07.09.2012.
9. In reply to the averments made in the OA, the respondents have stated that the impugned order has been passed by the competent authority in accordance with relevant rules and instructions and in compliance of Tribunals order dated 07.09.2012 passed in OA No. 2956/2012 taking in account the organizational requirement for effective and smooth functioning of the department and the applicant has got no vested right to get his request acceded to. They have denied the allegation of arbitrariness in rejecting the representation of the applicant being false and baseless as two files concerning the applicant on allegation of corrupt practices have been processed in the Directorate of Vigilance which are being examined. To the averment made by the applicant that he has not completed three years, the respondents have contended that an officer can be transferred even before completion of three years from a station like Faridabad in terms of Para 7.1 of Guidelines-2010 as it does not give any right to an officer to remain posted for a period of three years in a station such as Faridahad. As regards the contention of the applicant that no reason has been given under the remarks column, it is stated that provisions of para 4.3(ii) clearly stipulates that officers can be transferred out before the completion of their tenure on their own request or on administrative grounds/in public interest notwithstanding anything contained in the Guidelines-2010, the Placement Committee may, if it considers necessary to do so in public interest and in furtherance of organization objectives, transfer, retain or post any officer to any station/region or a specific post. It is stated that two complaint files concerning the applicant have been processed in the Directorate of Vigilance and the specific and verifiable allegations of corrupt practices are being looked into for factual veracity and further action, if considered necessary, would be taken. It is further submitted that recently a Division Bench at Jabalpur of this Tribunal has ruled in the matter of P.C.K. Soloman Versus Union of India and Others (OA No.851/2012 decided on 27.09.2012) that it is for the administration to take appropriate decision regarding transfer and posting and such decision shall stand unless they are vitiated either by malafide or by extraneous considerations without any factual background. Learned counsel for the respondents, therefore, prays for dismissal of the OA being devoid of merits. In support of the above contentions, learned counsel for the respondents have relied on the following judgments:-
(i) B. Varadha Rao versus State of Karnataka (AIR 1986 SC 1955),
(ii) Shilpi Bose Versus State of Bihar and Others (AIR 1991 SC 532),
(iii) Union of India versus S. L. Abbas (AIR 1993 SC 2444),
(iv) State of M.P. and Another Versus S.S.Kourav and others [1995-3-SCC-270];
State of Uttar Pradesh and Another versus Siya Ram [2004(7)SCC 405];
S.C. Saxena versus Union of India and Others [2006 (9) SCC 583];
Masood Ahmad Versus State of U.P. [2007 STPL(LE) 39042 SC];
Airport Authority of India Versus Rajeev Ratan Pandey and Others [JT 2009 (10) SC 472];
Tushar D. Bhatt versus State of Gujarat and Others [2009(11) SC 678]; and Sujata Kohli versus High Court of Delhi [148(2008)DLT 17 (DB)].
10. The issue in the present OA is in narrow compass whether the impugned order of transfer dated 04.09.2012 in which applicants transfer was ordered from Faridabad to Chandigarh and the order dated 21.09.2012 by which representation of the applicant was rejected, are legally sustainable or not?
11. Rival parties have referred to various judgments which we have gone through and for the purpose of brevity in this order; we may refer to some of those judgments, as we feel relevant for adjudicating the controversies raised in this OA.
12. In the setting of the facts narrated within, we may examine the legal aspects now. Transfer is an exigency and incidence of service and is an administrative decision. The executive has unfettered rights to transfer its employees from one place to another place. However, interference by the Tribunal with transfer orders should only be in very rare cases. In a catena of decisions of the Honble Apex Court viz. in B. Varadha Rao versus State of Karnataka (AIR 1986 SC 1955); Shilpi Bose Versus State of Bihar and Others (AIR 1991 SC 532); Union of India and Others versus S. L. Abbas (AIR 1993 SC 2444); State of M.P. and Another Versus S.S.Kourav and others [1995-3-SCC-270]; Arvind Duttatraya Dhande Versus State of Maharashtra [1997-6-SCC-169]; Mysore Paper Mills Ltd., Bangalore Verus Mysore Paper Mills Officers Association, Bhadravati and Another [1999-6-SLR-77]; National Hydroelectric Power Corporation Ltd. Versus Shri Bhagwan and Another [2001-8-SCC-574]; Kendriya Vidyalaya Sangathan versus Damodar Prasad Pandey and Others [2004-12-SCC-299]; Airport Authority of India Versus Rajeev Ratan Pandey [JT 2009 (10) SC 472]; Somesh Tiwari versus Union of India and Others [2009-2-SCC-592]; and Rajendra Singh Versus State of UP and Others [2010-1-SLR-632], the law laid has been that in the transfer matter of a Government employee, scope of judicial review under Article 226 of the constitution is limited. The Tribunal should not interfere with an order of transfer lightly be it at the interim stage or final hearing as the Courts do not substitute their own decision and as the Courts and Tribunals are not appellate authority in such matters of transfer. Further, we are guided by the judgment of Honourable Supreme Court in Masood Ahmad Versus State of U.P. [2007-8-SCC-150] decided on 18.09.2007, which reads as follows :-
4. The petitioner-appellant, who was an Executive Officer, Nagar Palika Parishad Muzaffarnagar, had in his writ petition challenged his transfer by the State Government by order dated 21.6.2005 as Executive Officer, Nagar Palika Parishad Mawana, District Meerut. Since the petitioner was on a transferable post, in our opinion, the High Court has rightly dismissed the writ petition since transfer is an exigency of service and is an administrative decision. Interference by the Courts with transfer orders should only be in very rare cases. As repeatedly held in several decisions, transfer is an exigency of service vide B. Varadha Rao vs. State of Karnataka AIR 1986 SC 1955, Shilpi Bose vs. State of Bihar AIR 1991 SC 532, Union of India Vs. N.P. Thomas AIR 1993 SC 1605, Union of India vs. S.L. Abbas AIR 1993 SC 2444 etc. .
The scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Supreme Court in Rajendra Rao vs. Union of India (1993) 1 SCC 148; (AIR 1939 SC 1236), National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan (2001) 8 SCC 574; (AIR 2001 SC 3309), State Bank of India vs. Anjan Sanyal (2001) 5 SCC 508; (AIR 2001 SC 1748). Following the aforesaid principles laid down by the Supreme Court, the Allahabad High Court in Vijay Pal Singh vs. State of U.P. (1997) 3 ESC 1668; (1998) All LJ 70) and Onkarnath Tiwari vs. The Chief Engineer, Minor Irrigation Department, U.P. Lucknow (1997) 3 ESC 1866; (1998 All LJ 245), has held that the principle of law laid down in the aforesaid decisions is that an order of transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a Court of law in exercise of its discretionary jurisdiction under Article 226 unless the Court finds that either the order is mala fide or that the service rules prohibit such transfer, or that the authorities who issued the orders, were not competent to pass the orders.
13. The courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from mala fides. In the case of Shilpi Bose (supra), the Honble Apex Court held thus:
"4. In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. If the courts continue to interfere with day-to- day transfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders."
14. In N.K. Singh Versus Union of India & Ors. [(1994) 6 SCC 1998], the Honble Apex Court reiterated that the scope of judicial review in matters of transfer of a Government Servant to an equivalent post without adverse consequence on the service or career prospects is very limited being confined only to the grounds of mala fides or violation of any specific provision."
15. In Airport Authority of India Versus. Rajeev Ratan Pandey [2009 (8) SCC 377] Honourable Supreme Court relying on its earlier judgment observed the following on the allegation of malafide as a ground of transfer, which reads as follows :-
In the case of State of U.P. v. Gobardhan Lal (2004) 11 SCC 402, while dealing with a matter of transfer, this Court observed that allegations of mala-fides must inspire confidence of the Court and ought not to be entertained on the mere asking of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference would ordinarily be made with an order of transfer. That the burden of providing malafides is on a person leveling such allegations and the burden is heavy, admits of no legal ambiguity. Mere assertion or bald statement is not enough to discharge the heavy burden that the law imposes upon the person leveling allegations of mala-fides; it must be supported by requisite materials.In a matter of transfer of a government employee, scope of judicial review is limited and High Court would not interfere with an order of transfer lightly, be it at interim stage or final hearing. This is so because the courts do not substitute their own decision in the matter of transfer.
16. The Honble Supreme Court discussed its earlier orders on different facets of transfer of Government employees in Rajendra Singhs case (supra) and the relevant paragraph reads thus:-
6.A Government Servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary. No Government can function if the Government Servant insists that once appointment or posted in a particular place or position, he should continue in such place or position as long s he desires [see State of U.P. v. Gobardhan Lal; (2004) 11 SCC 402].
17. In the background of setting of the aforesaid catena of judgments of Honble Apex Court, the question, therefore, arises on what grounds the Tribunal can interfere in the matters of transfer? The following criteria emerge from the above judgments for our guidance in adjudicating the current OA. Transfer is part and incidence of the service conditions of an employee which should not be ordinarily interfered with by a Court of law, unless it is found that either; (i) that the authority who issued the orders, is not competent to pass the transfer order; or (ii) that the service rules prohibit such transfer; or (iii) the order is mala fide either in fact or in law; or (iv) the transfer suffers from arbitrary action of the executive.
18. In view of the aforesaid legal position, the facts of the case reveal that the Applicant has admittedly the all India transfer liability from one place to the other, and the competent authority has passed the transfer order in as much as the transfer order included large number of transfers and the applicant was one of them. Hence, the remaining grounds would be examined in the legal setting spelt out in the foregoing paragraphs. We may examine to find out whether the applicants transfer order suffers from the violation of Guidelines-2010 and whether transfer suffers from malafide or arbitrary action of the executive, or whether the transfer is punitive in nature?.
19. At this stage, we may refer to the applicants transfer order No. 177 dated 04.09.2012. Totally 290 (129+161) CITs have been transferred in two paragraphs of the order and four officers have been retained in relaxation of the Guidelines-2010. The applicant figures at Sl. No. 84 in paragraph no.1 and there is no remarks against his name. Thus, his transfer prima facie is a transfer simplicitor. In the said order, there is no mention of his transfer on the basis of a Secret/ Confidential Note from the Vigilance.
20. The order dated 21.09.2012 is sequel to the Tribunals directions issued on 07.09.2012 to the respondents to place applicants representation dated 05.09.2012 before the Placement Committee for consideration where he raised four grounds. His representation on consideration was rejected by a reasoned order. The pertinent part of the order dated 21.09.2012 is extracted below:-
3.1 Dr. Amar Veer Singh was transferred from Jammu Amritsar vide order dt.27.08.2009. Again, on his request, he was transferred from Amritsar to Faridabad vide order dt. 09.07.2010 in relaxation of TPG-2010 since he did not complete stay of 2 years at Amritsar.
3.2 However, the Placement Committee after taking into consideration of a confidential note received from the Directorate of Vigilance, recommended his transfer to Chandigarh on an administrative ground from Faridabad which is a sensitive and high revenue yielding station.
3.3 With regard to his contention that his transfer to Chandigarh is not tenable as he has not completed 3 years of stay in Faridabad, the Committee underscored the phrases employed in cl.4.3(i)(a) and 4.4(iii) Officers shall be liable for transfer on completion of tenures specified therein and reiterated that this clause only specify overall limit for any officer to continuously stay in different category of stations. It nowhere confers any right on the officers to demand that she/he should mandatorily be provided postings for the specified period in places like Faridabad.
Further, in this context, the Committee also highlighted the following clauses in TPG-2010.
Clause 4.3 (ii): the officers may, however, be transferred out before the completion of their tenures on their own request or on administrative grounds/public interest.
Clause 7.1: Notwithstanding anything contained in these Guidelines, the Placement Committee may, if it considers necessary to do so in public interest and in furtherance of organizational objectives, transfer, retain or post any officer to any station/Region or a specific post.
3.4 Notwithstanding the above, the Committee also took note of the fact that law relating to transfer is now well settled by catena of judgments pronounced by Honble Supreme Court that transfer is an administrative function. An employer is the best judge about the requirement and posting of its employees is a bonafide manner without violating any statutory provision. Anil Dhall versus Union of India (CWP No.4723 of 1999 and C.M. 8858 of 1999 dt. 31.08.1999) [High Court of Delhi].
3.5 In the case of UOI vs. S.L. Abbas, AIR 1993 SC 444, Honble Supreme Court held that guidelines/instructions do not confer any right on the employee to challenge the transfer order on the ground of violation thereof. Merely because the guidelines are violated is not sufficient reason to quash order as malafide. Orders of transfer on administrative grounds can still be passed even if it is in violation of such guidelines which have no statutory force The same was also reiterated by Honble SC in the case of Bank of India vs. Jagir Singh Mehta [(1992) ILLJ 329 SC].
In the aforesaid impugned order there is reference to a Confidential Note as the basis, which the applicant claims to be non-existent. The file placed before us has an informal but unsigned confidential note. We may dwell on this in greater detail as the applicant alleges the impugned transfer order as stigmatic.
We have perused the files placed before us as per direction. A Note marked as Confidential finds place as an enclosure to the minutes of the meeting of the Placement Committee, which has been mentioned in paragraph 3.2 of the minutes. That confidential note seems to be the basis of the applicants transfer on administrative grounds. The said note revealed that there were two sets of complaint against the applicant. The complaints in F.No.CVO-1/244/NZ/09 received against him while he was posted in Ghaziabad wherein it was alleged that he had amassed wealth by dubious means and made investments in benami names. It is noticed that allegations seem to be specific and verifiable. Further, there were some general allegations too in these complaints where it was alleged that he is involved in corruption. The second set of complaint is indicated to be in F.No.CVO-1/915/06/NZ against him which includes the allegations about his involvement in a hawala scandal involving essentially alleged tax evasion by certain taxpayers, without any specific reference to his involvement. However, the same is being examined by the Lucknow Unit of the respondents. During the hearing the applicant submitted that all these allegations were examined by the CBI and closed. These files, on careful examination by us, did not disclose any material in support of the applicants claim. The relevant file has a reminder letter dated 21.09.2012 which refers to earlier reminders dated 04.03.2011 and 24.03.2011 requesting Director of Income Tax (Vig.) North to expedite his report on the complaints against the applicant.
23. We may advert to an associated issue to the above allegations as to at what stage the Placement Committee has been apprised. The files on the transfer and posting of the CITs though did not disclose any reference to the applicants alleged involvement in the aforesaid complaints, the transfer order of the applicant dated 04.09.2012 is a simplicitor one and administrative ground or public interest for transfer has not been recorded in the relevant file, but the Placement Committee has noted that the confidential note containing the complaints against the applicant as has been reflected in the impugned order dated 21.09.2012, has been the basis of his transfer. The said unsigned confidential note has been enclosed to the minutes of the Committee meeting. By disclosing the facts/basis of applicants transfer from Faridabad to Chandigarh cannot be termed as stigmatic or punitive as the respondents/Placement Committee has highlighted the reasons in response to four grounds given in his representation to continue in Faridabad. Even if the Tribunal lifts the veil of the transfer order dated 04.09.2012 and even if the background of the transfer as revealed from the letter dated 21.09.2012 is taken into account, the applicants transfer by no fits of imagination can be termed as stigmatic or punitive, as the transfer has not been treated as a substitute for the disciplinary action. On the other hand, investigation into those allegations is going on and has not been concluded. The place to which the applicant has been transferred is Chandgiarh and the same is not a hard station. Thus, the ground of punitive/stigmatic nature of the orders dated 04.09.2012 and 21.09.2012 has not been made out calling for our interference.
24. Now we may advert to the issue of malice in law canvassed by the applicant and in support thereof he has placed his reliance on the Honble Apex Court judgment in the matters of Somesh Tiwaris case (supra).
25. The Civil Appeal No. 7308 of 2008 decided on 16-12-2008, Apex Court considered mala fides in transfer matter from the angles of malice in fact and malice in law and held that order of transfer passed in lieu of punishment was liable to be quashed being wholly illegal and further held that transfer order not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e anonymous complaint such order in question would attract the principle of malice in law and would be liable to be set aside. It is appropriate to state the facts of the case to know whether the law laid in Somesh Tiwari's case [supra] would be applicable or distinguishable? The Appellant was an officer of Indian Revenue Service and was posted as a Deputy Commissioner of Central Excise at Bhopal, where the employees posted at the Bhopal office of the respondents apprehending disciplinary as also criminal proceedings at the hands of the appellant on the basis of the reassessment of the files undertaken by him, an anonymous complaint was made alleging caste-bias on his part, pursuant whereto an order of transfer was passed against him in August, 2005. Earlier,he had filed a representation stating that, as he had been undergoing some treatment, he should be retained at Bhopal. Appellant, however, contended that in view of the fact that he had taken action against some erring officers, they were instrumental in sending the said anonymous letter on the basis whereof no action should have been taken in the light of the circular letters issued by the Central Vigilance Commission. However, an enquiry was conducted into the said anonymous complaint wherein allegations made against the appellant were not found to be true but still recommendations were made that he be transferred from Bhopal. Only on that basis he was transferred to Shillong. He represented praying that on compassionate and humanitarian grounds, he should be retained at Bhopal for at least one year which was not responded to and feeling aggrieved he filed O.A. No. 897 of 2005 before the Jabalpur Bench of this Tribunal which was decided on 27.9.2005 with a direction to consider and decide the representation of the applicant dated 29th August, 2005 and take a decision by passing a reasoned order. However by an order dated 19th October, 2005 the said representation was rejected. He moved another representation dated 25th October, 2005 which was rejected by an order dated 27th October, 2005. Thus the appellant filed O.A. No.1042 of 2005 before the Tribunal, Jabalpur and during the pendency of the said O.A., respondents while considering the matter of promotion, posting and transfer in the grade of the Assistant Commissioner of Customs and Central Excise, passed order dated 28th December, 2005 inter alia transferring on administrative consideration the appellant from Shillong to Ahmedabad. The orders under challenge before the Tribunal were, thus, the orders dated 22nd August, 2005 ; 19th October, 2005 and 28th December, 2005. Considering the fact that the appellant had not reported at Ahmedabad and the order of transfer was an administrative one, the Tribunal by its order dated 14th March, 2006 dismissed the OA. Aggrieved by the order the appellant filed a Writ Petition before the High Court of Madhya Pradesh and during the pendency of the said writ petition, a disciplinary proceeding was initiated against him on the ground that he had not joined the post at Ahmedabad and the High Court passed an interim order on 17th April, 2006, directing that since the transfer of the petitioner to Ahmedabad was sub-judice the disciplinary authority would not take any disciplinary action against him for the time being. The High Court by the judgment dated 25th September, 2006 while opining that the order of transfer could not be passed on the basis of an anonymous complaint, which on enquiry having been found to be incorrect, held that he would not be entitled to salary for the period commencing fifteen days after the modified order of transfer to Ahmedabad was passed. The Apex Court observed that the appellant should have joined at his transferred post, he did not do so as a result whereof he might have committed a misconduct, but while invoking the doctrine of `no work no pay', the Apex court considered the conduct of both the parties. While modifying the judgment of the High Court, Hon'ble Supreme Court allowed the appeal with direction that "keeping in view the fact, that on the one hand the appellant did not join his posting at Ahmedabad, although no order of stay was passed and on the other wholly unwarranted and reprehensible conduct on the part of the authorities of the respondents, are of the opinion that interest of justice would be sub served if during the period from 28th December, 2005 till his joining his post at Bhopal, the appellant is treated to be on leave and the respondents are directed to pass an appropriate order invoking the leave rules applicable in this behalf. It is ordered accordingly." In the context of the above orders, the observation of the Hon'ble Apex Court being relevant is extracted below:
"16. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds - one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal."
26. The case in hand is far different from the above case of Somesh Tiwari. The anonymous letter against Shri Tiwari was enquired into and found to be untrue whereas in the case of the applicant, the petition is specific and verifiable and report has not been received from the concerned officer and that too the allegations have been made by specified person and there is nothing to show the said petition is pseudonymous. In our opinion, decision in Somesh Tiwaris case (supra) is distinguishable and not applicable to the facts of the instant OA.
27. The applicant has also assailed the transfer order on the ground that his transfer before completion of three years at Faridabad violates the Guidelines 2010. The said Guidelines are administrative one and does not have statutory backing. It is not in dispute that Faridabad comes under the category of Other Stations. Applicants claim is that as per paragraph 4.3 (i)(c) of the Guidelines-2010, he is to be continuously posted for a period of 3 years at Faridabad. It is the case of the respondents that para 7.1 empowers the competent authority to transfer officers prior to the completion of 3 years on the basis of the Placement Committee recommendation on the grounds of administrative exigencies, public interest and organizational interest. It is trite law that the executive is in a better position to know and identify the public and organizational interest. In view of the rival stands, the collective reading of the provisions in paragraph 3 and 7 of the Guidelines-2010, the balance of convenience, in our opinion, goes in favour of the respondents.
28. The impugned order dated 21.09.2012 reflects the views of the Placement Committee and a careful examination of the same convinces us that there has been proper application of mind and cannot be termed either as arbitrary or discriminatory decision.
29. It must be noted that the respondents have been responsive to the applicants request in the sense that his earlier transfer from Amritsar to Faridabad has been allowed on the basis of his request and that too on the relaxation of the extant Guidelines on the health grounds of the applicant. Now a ground of applicants childrens education has been taken by him to continue at Faridabad. His two children are college going students and are studying at Amity University. They are not school going children for whose education the parents are to be at the station of education. The officers of applicants statute should not take stand to continue to be in a place for their childrens higher education in the universities. We are not inclined to consider this ground to issue any direction to the respondents.
30. Having considered the totality of facts and circumstances of the case and well settled position in law in the matters of transfer of Government employees and having noted the executive Guidelines-2010 on the transfer and placement of officers belonging to IRS (IT), we have noted that the applicant is in the transferable post with all India transfer liability and the Guidelines provide a basic framework but do not have any statutory backing. Applicants transfer in our opinion, does not violate the principles laid in the Guidelines. Though there has been no mention of the reasons of his transfer in the impugned transfer order dated 04.09.2012 but on direction the same has been disclosed in the impugned order dated 21.09.2012. The said disclosure, as analyzed within, is neither stigmatic nor punitive in nature though his transfer has been done by an order simplicitor. Further, other grounds taken by the applicant do not convince us to interfere in the mater to issue any direction to the respondents to continue the applicant at Faridabad. In view of our analysis and findings on various issues within, we are of the considered opinion that the applicant has not made out a case in his support for the Tribunal to issue any direction to the respondents. Resultantly, the transfer order dated 04.09.2012 and the reasoned order rejecting his representation dated 21.09.2012 are held legally sustainable.
31. In view of the above, the Original Application being devoid of merits is dismissed and the stay granted by this Tribunal vide its order dated 01.10.2012 is vacated, leaving the parties to bear their own costs.
(Dr. Ramesh Chandra Panda ) (Syed Rafat Alam)
Member (J) Chairman
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