Central Administrative Tribunal - Hyderabad
Between vs Chief Commissioner on 30 June, 2009
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL : HYDERABAD BENCH
HYDERABAD
O.A.No. 442 of 2009
Date of Order :30-06-2009.
Between:-
G. Satya Prakash Rao S/o Late G. Ramakrishna Rao,
Aged 43 years, R/o H.No.16-7-220, Azampura
P.O. Sahifa, Hyderabad, Working as Inspector of
Central Excise, Division 'A', 3rd Floor, CLS
Buildings, Nampally Station Road,
Hyderabad-500 001. ....Applicant
And
1. Chief Commissioner, Customs & Central Excise,
Hyderabad Zone, L.B. Stadium Road, Basheerbagh,
Hyderabad.
2. Commissioner, Customs & Central Excise,
Hyderabad-I Commissionerate, Kendriya Shulk
Bhavan, Basheer Bagh, Hyderabad. ....Respondents
Counsel for the Applicant : Mr.N. Vijay
Counsel for the Respondents : Mr.G. Jayaprakash Babu, Sr. CGSC
CORAM:
THE HON'BLE JUSTICE MR. P. LAKSHMANA REDDY : VICE-CHAIRMAN
THE HON'BLE MR.R. SANTHANAM : MEMBER (A)
:O R D E R:
( As per Hon'ble Mr. R. Santhanam, Member (A) ) This application has been filed impugning the Establishment Order (NGO) No.13/2009 dated 14.5.2009 issued by the office of Commissioner of Customs, Central Excise & Service Tax, Hyderabad-II Commissionerate.
2. The facts of the case are as follows :-
The applicant was appointed in Central Excise Department as Inspector of Customs & Central Excise in the year 1990. He had worked at Nizambad in technical section from 2004-2008 and reported to duty in Hyderabad city in the first week of August, 2008. The applicant is being prosecuted in CC No. 32/2005 in CBI Court, Hyderabad for an offence under Prevention of Corruption Act. The criminal case is under trial. A departmental inquiry under rule 14 of CCS (CCA) .........2 2 Rules is also pending against the applicant. While so, the respondents have issued the impugned transfer proceedings dated 14.5.2009 transferring him to Vizag Zone. On 31.3.2009 the applicant sought information under the RTI Act about officers who have not been posted to Vizag Zone, though due, along with reasons. However, this information has not been furnished. The applicant claims that it will cause him extreme financial stress and hardship in effectively defending the criminal case and the departmental case if he is transferred to Vizag now. The transfer order is dated 14.5.2009 and the relief order date is mentioned as 15.5.2009. Since the applicant was not given time to represent his difficulties, he has approached this Tribunal for relief on the following grounds :-
(i) the department evolved a policy in 1999-2000 that those officers facing disciplinary proceedings shall not be transferred. Even in the latest policy there is no clause contrary to the same;
(ii) the transfer policy mandates that all direct recruits on allotment will be posted to Vizag and thereafter officers on promotions will be posted to Vizag and that the transfer will be effected on the basis of roster indicating seniority and the transfer of such officers will not be as a matter of routine;
(iii) as per recruitment rules each Commissionerate is treated as a separate cadre and there is no proceedings of Central Board of Excise and Customs (CBEC) treating the Commissionerates of Vizag Zone and Hyderabad Zone as common. In the absence of such proceedings and in view of the recruitment rules any posting outside the cadre is to be termed as deputation and not as transfer. Consent of the employee concerned is mandatory in the case of deputation and in the absence of consent, no posting can be effected;
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(iv) the power to treat cadres of different Commissionerates as common is available only with the CBEC. In the absence of any proceedings of CBEC no transfer could be effected;
(v) the transfer policy is discriminatory since the lady Inspectors are exempted from transfer unconditionally. There is no rationale in the policy as lady Superintendents are transferred to Vizag Zone as well as to mofffussil areas;
(vi) the officers, who had worked in moffussil areas, are entitled for cooling off period of one year before being transferred. As the applicant worked in Nizamabad from 2004 - 2008 and reported to duty in Hyderabad in August, 2008, he has not completed the cooling off period.
3. The respondents in their reply have stated that the CBI Hyderabad booked a case against the applicant vide RC No. 8(CA)-Hyd CC No. 32/2005 and sanction for prosecution was accorded on 24.4.2003. The trial now is in progress in respect of the major penalty proceedings. Charge memo was issued to the applicant on 28.7.1999 which was acknowledged by the applicant the next day. The proceedings are in progress and are yet to attain finality.
4. The Respondents have stated that the transfers had to be effected since the direct recruit Inspectors are not available and there is no possibility of promotion of officers for transfer. The CBCE has informed that nominations have been received from Staff Selection Commission for 2742 Officers and these officers are to be allocated to various formations after receipt of their options on merit cum seniority preference. Their dossiers have still not been received and even after receipt of the dossiers a number of formalities have to be gone through like physical endurance test, verification of character and antecedents, .........4 4 issue of appointment letters etc. The candidates will also take their time to join. Even after they join, induction training will have to be given and the whole process may take about a year. Regarding posting of promotees, the Hon'ble High Court vide their interim order dated 5.3.2009 in WP No.4457/09 has suspended the order of this Tribunal in OA 398/2008 dated 30.9.2008. The select list prepared in the DPC held on 14.2.2008 and the promotion list dated 20.2.2008 have also been suspended. The Asst. Solicitor General of India has advised not to proceed further with regard to promotions. In view of these reasons, there was no other option but to transfer senior most officers to maintain parity of vacancies as stipulated in point A.1(e) of the transfer policy.
5. The respondents have further stated that the Vizag Zone was formed in the year 2002 and detailed instructions have been issued by the Board that in formations comprising both Commissioners and Chief Commissioners, it would be the Chief Commissioner who would allocate staff to various formations including the Commissioners / Chief Commissioner's office. After formation of Vizag Zone also cadre control vests with the Chief Commissioner, Hyderabad Zone and as such allocation of staff to various formations by the Chief Commissioner is in order. Moreover the Commissioner Hyderabad-II Commissionerate has been designated the cadre controlling authority in respect of the Inspectors of Central Excise comprising Hyderabad and Vizag Zones. The Respondents have further stated that this Tribunal vide order dated 20.11.2007 in OAs 587, 586, 726 and 755 of 2007 (enclosed as Annexure R-VIII) vide para-11 has held that Chief Commissioner of Central Excise, Hyderabad, has the power and jurisdiction to issue transfer orders and hence the legality of the orders in question cannot be assailed on that count.
6. The Respondents have denied the contention of the applicant that the transfer policy evolved in 1999-2000 stipulated that officers facing disciplinary .........5 5 inquiry shall not be transferred. The present policy dated 16.5.2008 has superseded all the earlier policies and the transfer of the applicant has been done in accordance with the guidelines of the present policy. Referring to point B.2(b) of the transfer policy, the respondents have pointed out that in cases where the officer voluntarily opts for moffussil posting out of turn or where he opts to continue his moffussil tenure beyond the laid down period (i.e. normal tenure of 2 years and one year in the bad climate areas) he will not be eligible for cooling off period. Since the applicant had voluntarily opted to continue in the moffussil posting beyond the tenure period, he is not eligible for cooling off period.
7. No rejoinder has been filed by the applicant.
8. Heard Sri N. Vijay, learned counsel for the applicant and Sri G. Jayaprakash Babu, learned senior standing counsel for respondents. The material papers furnished by the learned counsels including the written note filed by the learned counsel for the applicant on 19.6.2009 with the permission of the Court were also perused.
9. The issues that arise for consideration in this case are:
(i) whether the Inspectors of Hyderabad and Vizag Zone belong to a common cadre;
(ii) whether the Commissioner, Hyderabad-II Commissionerate has the power to transfer Inspectors within the zone;
(iii) whether the impugned transfer order is sustainable in law;and
(iv) to what relief, if any, is the applicant entitled?
10. Issues (i) and (ii):
The learned Counsel for the Applicant invited our attention to Rule 4 (1) of the Recruitment Rules for the post of Inspector, which reads as follows:
"4. Special provision: (1) Each Commissionerate shall have its own separate cadre unless otherwise directed by Central Board of Excise and Customs".
.........6 6 According to him, unless the Central Board of Excise and Customs otherwise directs, the cadre of each Commissionerate is separate and transfers could be effected only within that Commissionerate's cadre. Any transfer out of the cadre of Inspectors in each Commissionerate can be treated only as a deputation and the same cannot be effected without the consent of the employee. While the Hyderabad Zone and Vizag Zone consist of four Commissionerates each, no proceedings have been issued by the Central Board of Excise and Customs under Rule 4(1) after 29.11.2002 (the date on which the new recruitment rules came into effect) treating the cadre of various Commissionerates in the State of A.P. as common. On the other hand, the Central Board of Excise and Customs in its letter dated 16.1.2003 and 31.3.2003 clearly specified that the independent entity of each cadre shall remain intact and unchanged.
11. The learned Counsel for the Respondents maintained that this Tribunal has already gone into the issue in O.A.No.587/07 & batch in its order dated 20.11.2007, (copy annexed as Annexure.R.VIII), and had given its decision that the Chief Commissioner of Central Excise, Hyderabad, has the power and jurisdiction to issue the transfer orders and hence the legality of the orders in question cannot be assailed on that ground. In fact, the learned Counsel for the Applicants, who appeared in that case also, had argued in that case that the then existing transfer policy had been formulated without consultation with the representatives of the Inspectors' Association. He had drawn attention to the D.O. letter dated 24.6.1996 issued by the Member of the Board to the Chief Commissioner, Hyderabad, specifically directing to formulate the guidelines for transfer/posting of Group 'B' and 'C' Executive Officers in the common cadre Commissionerates under his charge keeping in view the local conditions and in consultation with the concerned Staff Associations. This was followed by the .........7 7 general instructions, vide letter dated 20.1.2000 by the Board addressed to all the Chief Commissioners of Central Excise, wherein it was emphasized that the guidelines may be formulated only after due consultation with the Associations in view of the peculiar problems and the local conditions, if any.
12. The learned Counsel for the Respondents also referred to the letters dated 30.9.2003 addressed to the Chief Commissioner, Customs & Central Excise, Hyderabad, regarding inter zonal transfer in the common cadre of Inspectors from Vizag Zone to Hyderabad in which the following guidelines are given:
"The posting of officers within a particular Zone/cadre is entirely within the jurisdiction of the cadre controlling authority i.e., the Chief Commissioner concerned. But transfer may be formulated by the Chief Commissioner keeping in view the ground realities and after consultation with the Associations, if necessary. This is basically a local issue. They are, therefore, advised to formulate the suitable transfer policy with modifications, if necessary, to the earlier transfer policy at their own level keeping in view the ground realities and after consultation with the Association, if required."
The learned Counsel also referred to the letter dated 9.3.2004 of the Ministry of Finance, Department of Revenue addressed to all Chief Commissioners of Customs and Central Excise in which it has been 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." These letters have been issued after the recruitment rules to the post of Inspector came into effect i.e., 29.11.2002. It is, therefore, clear that the Department of Revenue and the Central Board of Excise & Customs were aware of the problem and the directions have been given to the Chief Commissioners to evolve a transfer policy in consultation with the Associations. We also note that in .........8 8 O.A.No.587/07 & batch referred to by the learned Counsel for the Respondents, this Tribunal in O.A.No.587/07 & batch has gone into this issue and given a finding as follows:
"11. After careful consideration of the matter, we are of the view that in the light of Board's instructions cited by the learned standing counsel, the Chief Commissioner of Central Excise, Hyderabad, has the power and jurisdiction to issue the transfer orders and hence the legality of the orders in question cannot be assailed on that ground. However, we find force in the pleadings made by the learned counsel for the applicants that contrary to the instructions of the Board from time to time to formulate the policy of transfer only after due consultation with the Association of the Inspectors considering the local conditions etc., the Chief Commissioner of Central Excise before formulating the policy announced on 1.7.2006, has not followed the Board's instructions. In other words, the delegation of powers to the Chief Commissioner for formulation of the policy is subject to the condition that there is due consultation with the Association concerned and the impugned orders herein have been passed in pursuance of that policy. Therefore, to this extent we find force in the pleadings of the applicants. However, we also take note of the fact that the respondents have already started the process of consultation and as pointed by the learned counsel for the applicants, one round of consultation has already taken place on 7.11.2007."
One of us was a party to the decision in O.A.No.587/07 & batch. We see no reason to come to a different conclusion now.
13. The learned Counsel for the Respondents also brought to our notice that a common seniority list of Inspectors of Central Excise of Hyderabad-I /II /III /IV / Guntur/ Tirupathi/ Visakhapatnam- I/II Commissionerates as on 1.1.2007, has been prepared by the office of the Commissioners of Customs and Central .........9 9 Excise, Hyderabad-II Commissionerate, who is the Cadre Controlling Authority for Inspectors as per Board's letter dated 15.1.2004. The seniority list, which contains 927 names, has been made available to all the Officers and which also has been uploaded on the Website. The learned Counsel contended that the applicant never challenged the seniority list though it is stated therein that it is a seniority list in the common cadre of Inspectors of Central Excise. We also note that the applicant, who was working in Nizamabad Commissionerate under Hyderabad-I Commissionerate (Moffusil) was transferred to Hyderabad-I City posting, vide order No.18/07, dated 19.4.2007. He had requested for retention in Nizamabad and it was accepted by the Committee of Commissioners. The order retaining him at Nizamabad was passed by the Hyderabad-II Commissioner, who is the Cadre Controlling Authority. The applicant accepted it. He did not protest that the order should have been issued by the Hyderabad-I Commissioner as per Rule 4 (1) of the Recruitment Rules. He cannot turn around and say now that the Hyderabad-II Commissioner has no power to transfer Inspectors within the zone. Therefore, the first and second issues are found against the applicant.
14. Issue No.(iii):
The transfer order has also been challenged on the ground that it is against the transfer policy. We have examined this issue in detail in O.A.No.402/2009 in which the same transfer order had been challenged by two others. We have held that there has been no violation of transfer policy while issuing the impugned order since all the three ingredients, which are necessary for transfer, as per the policy, are present in this case. These three ingredients are :
(i) disparity of vacancy position of Inspectors in Hyderabad and Vizag Zones;
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(ii) direct recruit Inspectors are not available now and are unlikely to be available for at least another six months; and
(iii) there is no possibility for promotion in view of the interim orders of the Hon'ble High Court.
We have, therefore, held that the respondents have made out a case for transferring the applicants therein, vide impugned orders dted 14.5.2009. We have also directed in O.A.No.402/2009 that the respondents shall consider transferring the applicants therein back to Hyderabad as soon as promotees or direct recruits are available for posting in Vizag. Since no new grounds have been established in this application, we hold that the impugned order is sustainable in law as there is no violation of any statutory provisions or policy.
15. Issue No.(iv):
One of the arguments advanced by the learned Counsel for the Applicant is that the CBI had registered a case against the applicant for an offence under Prevention of Corruption Act and a criminal case is under trial. The departmental inquiry under Rule 14 of CCS (CCA) Rules is also pending. It would cause a lot of inconvenience to the applicant, if he is transferred to Vizag. The respondents have stated in their reply that the sanction for prosecution was accorded in April, 2003 and the trial is under progress. As regards major penalty proceedings, the charge memo was issued to the applicant in July, 1999 and the proceedings are in progress. The applicant himself was away in Nizamabad for four years. In fact, he had requested for his retention in Nizamabad after completing his tenure. We do not find any substance in the argument that his transfer to Vizag, which is not likely to last more than a few months, is likely to affect either the criminal proceedings or the department proceedings. The applicant's argument that he is entitled for cooling off period of one year since he worked in moffussil area for more than two years has also been rejected by the respondents, since he had .......11 11 voluntarily opted to continue in moffussil posting beyond the tenure period, and therefore, he is not eligible for cooling off period. In view of the abovementioned reasons, we are of the view that the applicant has not made out a case for his continuance in Hyderabad and we do not see any scope for providing him relief.
16. In the result, the OA is dismissed as devoid of merits. There shall be no order as to costs.
( R.SANTHANAM ) ( P. LAKSHMANA REDDY )
Member (Admn) Vice-Chairman
Dated: this the 30th day of June, 2009