Central Administrative Tribunal - Hyderabad
G Gopichand vs Revenue Cbic on 31 July, 2023
OA No.20/537/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH :: AT HYDERABAD
OA/020/537/2021
Reserved on: 23.06.2023
Pronounced on: 31.07.2023
Hon'ble Mr. Sudhi Ranjan Mishra, Judicial Member
1. G. Gopichand, S/o. Shri Gangarapu Anandam,
Aged 31 years, Occ: Inspector of Central Tax,
O/o. The Principal Commissioner of GST & Customs (Appeals),
Appeal Commissionerate, Guntur.
2. Hemant Kushwah, S/o. Shri Ashok Kumar Kushwah,
Aged 31 years, Occ: Inspector of Central Tax,
O/o. The Commissioner of Central Tax, GST Cell,
Hqrs Office, Guntur.
3. Arpit Gupta, S/o. Shri Satish Kumar Gupta,
Aged 30 years, Occ: Inspector of Central Tax,
O/o. The Commissioner of Central Tax, Guntur Hqrs Office,
Reviews Section, Guntur.
4. Arvind Bhardwaj, S/o. late Sh. Ram Niwas,
Aged 33 years, Occ: Inspector of Central Tax,
O/o. The Commissioner of Central Tax, CIU Section,
CGST Commissionerate, Guntur.
5. Modem Reddy Avinash, S/o. Shri M. Ramachandraiah,
Aged 30 years, Occ: Inspector of Central Tax,
O/o. The Deputy Director, DRI Regional Unit, Vijayawada.
6. Amit, S/o. Shri Krishan Kumar,
Aged 30 years, Occ: Inspector of Central Tax,
O/o. The Commissioner of Customs, Vijayawada,
(Hqrs. Office Customs Commissionerate (Preventive), Vijayawada.
7. Hemraj Meena, S/o. Shri Rameshwar Meena,
Aged 31 years, Occ: Inspector of Central Tax,
O/o. The Commissioner of Customs, Vijayawada,
(Hqrs. Office Customs Commissionerate (Preventive), Vijayawada.
8. Atti Mahesh, S/o. Shri Venkateswarlu,
Aged 30 years, Occ: Inspector of Central Tax,
O/o. The Commissioner of Customs, Vijayawada,
(Hqrs. Office Customs Commissionerate (Preventive), Vijayawada.
9. Swapnil Kumar, S/o. Shri Dinesh Kumar,
Aged 32 years, Occ: Inspector of Central Tax,
O/o. The Superintendent of Central Tax,
Page 1 of 11
OA No.20/537/2021
Hanuman Junction CGST Range, Guntur CGST Commissionerate.
10. Chettupalli Sandeep Raj, S/o. Shri Chettupalli Vijaya Rao,
Aged 30 years, Occ: Inspector of Central Tax,
O/o. The Principal Commissioner of Central Tax,
Hqrs Office, Technical Section, CGST Commissionerate,
Visakhapatnam.
11. Piyush Sundriyal, S/o. Shri Manmohan Sundriyal,
Aged 32 years, Occ: Inspector of Central Tax,
O/o. The Principal Commissioner of Central Tax,
Guntur Appeals Commissionerate, Sub Office, Visakhapatnam.
12. Brijesh Kumar Meena, S/o. Shri Kajod Mal Meena,
Aged 32 years, Occ: Inspector of Central Tax,
O/o. Commissioner of Customs, Customs Division,
Tirupati Commissionerate, Tirupathi.
13. Hem Raj Meena, S/o. Shri Mathura Lal Meena,
Aged 29 years, Occ: Inspector of Central Tax,
O/o. Commissioner of Central Tax, Review Section,
Tirupati CGST Commissionerate.
14. Kumud Bandhu, S/o. Shri B.L. Chugh,
Aged 30 years, Occ: Inspector of Central Tax,
O/o. The Commissioner of Customs, Krishnapatnam Port,
Customs Commissionerate (Preventive), Vijayawada.
15. Devendra Pratap Singh, S/o. Shri Krishna Prakash Singh,
Aged 32 years, Occ: Inspector of Central Tax,
O/o. The Superintendent of Central Tax, Hindupur-2 Range,
Anantapur Division, Tirupati Commissionerate, Tirupati.
.....Applicants
(By Advocate: Mr. N. Vijay)
Vs.
1. The Principal Commissioner (Cadre Controlling Authority),
Central Tax and Customs, Central Tax Bhavan,
L.B. Stadium Road, Basheerbagh, Hyderabad.
....Respondent
(By Advocate: Mr. K. Rajitha, Sr. PC for CG)
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OA No.20/537/2021
ORDER
(As per Mr. Sudhi Ranjan Mishra, Judicial Member) The applicant filed the OA seeking the following relief:
"...to declare the inaction of the Respondents in not transferring the applicants to Hyderabad as per clause 3/clause 5 of the Inter zonal transfer policy, 2020 as illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India and consequently, direct the respondents to transfer the applicants to Hyderabad zone as per clause 3/clause 5 of the Inter zonal transfer policy, 2020.."
2. The case of the applicants is that they were directly recruited on their selection through the Common Graduate Level Examination conducted by the Staff Selection Commission (SSC) pursuant to the notifications for the years 2012, 2013 and 2014 and they are working as Inspectors in the Central Tax Department in Visakhapatnam zone. It is stated by them that the allotment to a zone after selection in the cadre of Inspector is based on merit and preference by the candidates, whereas, in the options sought, Visakhapatnam zone was not mentioned and all the vacancies were mentioned against Hyderabad Zone. Therefore, the applicants opted for Hyderabad zone and they were accordingly allotted to Hyderabad Zone. It is stated that the Principal Commissioner of Hyderabad Zone is the cadre control authority for the cadre of Inspectors of both zones i.e. Hyderabad zone and Visakhapatnam zone.
3. It is contended by the applicants that though they were allotted to Hyderabad zone, they were posted to Visakhapatnam zone, which they did not opt, on random basis without looking into the preference or merit and at that time, they were informed that they would be brought back to Hyderabad zone after 4 years as per the rotational transfer policy in force Page 3 of 11 OA No.20/537/2021 i.e. Inter Zonal Transfer Policy (for short "IZT") 2015. It is further contended by them, that though they have completed 4 years at Visakhapatnam zone, having worked in different Commissionerates across the State of Andhra Pradesh, they have not been transferred back to Hyderabad zone, despite their representations. They cited clauses 3 and 5 of the IZT 2015 to contend that there is preferential treatment and right to Inspectors transferred to Visakhapantam zone to be brought back to Hyderabad zone, after 2 years in case of male officers, and one year in case of female officers. However, in case of directly recruited Inspectors posted to Visakhapatnam zone, there is no such preferential treatment and the transfer policy contemplates that they may apply after 4 years for transfer to Hyderabad zone and the same would be subject to the administrative discretion depending on the vacancies, unlike the Inspectors transferred on rotational basis and this kind of differential treatment in the same cadre of Inspectors is discriminatory. It is also contended that under the transfer policy, the applicants are apparently treated as separate cadre of Visakhapatnam zone, depriving their right to seek transfer to Hyderabad zone, which is contrary to the notifications and the allotment on selection to Hyderabad zone. It is submitted that when there are substantial vacancies in Hyderabad zone, there is no justification in not transferring the applicants to Hyderabad zone even as per IZT 2020. Hence, the OA.
4. The respondents filed reply statement opposing the OA. They stated that the applicants joined the Department as direct recruit Inspectors consequent to their selection by SSC and they were allotted by the Board (CBIC) to carious Cadre Controlling Authorities (CCA) throughout the Page 4 of 11 OA No.20/537/2021 country based on their merit and zonal preference exercised. The CCAs after conducting physical and medical tests issues appointment orders to the suitable candidates and allots them to the various zones falling in their jurisdiction based on the number of vacancies. Similarly, the CCA, Hyderabad i.e. the Principal Commissioner of Hyderabad GST Commissionerate, Hyderabad, on issuance of appointment orders to the newly recruited Inspectors, allots them to Hyderabad zone and Visakhapatnam zone, based on the vacancies. Thus, the zone to which the officers are initially allotted on their appointment, becomes their parent zone. The applicants on their selection by SSC were allotted to CCA, Hyderabad and subsequently, they were allotted to Visakhapatnam Zone during the years 2014, 2015 & 2016 and thus, Visakhapatnam Zone has become their parent zone.
5. It is further stated that, the number of vacancies of Inspectors in the Visakhapatnam zone would be more than that of Hyderabad zone and in order to maintain the parity of vacancies in both the Zones, IZT, 2020 was brought out by the administration after consultation with the Associations of Inspectors to regularly transfer some Inspectors from Hyderabad zone (Parent zone) to Visakhapatnam zone every year on rotation basis for a tenure of 2 years for male officers and 1 year for female officers and on completion of their tenure, the said Inspectors of Hyderabad Zone, who were transferred to Visakhapatnam zone, would be repatriated back to Hyderabad zone. Clause 5 of the said policy provides that the Inspectors of Visakhapatnam Zone (Parent zone) who are willing to come to Hyderabad Zone may apply for transfer to Hyderabad zone after completion of a Page 5 of 11 OA No.20/537/2021 minimum tenure of 4 years and such requests would be considered subject to availability of vacancies in Hyderabad zone. It is further stated that as part of the Annual General Transfers 2021 (AGT-2021), Hyderabad GST Commissionerate being the Cadre Control Authority, called for representations from eligible officers on 08.04.2021, in response to which, about 37 Inspectors of Vizag zone (including the applicants herein except Applicant No.13) submitted their representations seeking transfer from Visakhapatnam zone to Hyderabad zone under clause 5 of IZT-2020. The Committee constituted in terms of IZT Policy comprising of three Principal Commissioners/ Commissioners met on 08.07.2021 and examined all the representations and after considering the vacancy position of both the zones, recommended transfer of only two Inspectors from Vizag zone to Hyderabad zone out of 37 applications and observed that, the other cases can be considered when fresh lot of newly recruited Inspectors are posted to these zones. Thus, the applicants were not considered for transfer to Hyderabad zone during the AGT, 2021.
6. It is further stated by the respondents that at the time of selection, the applicants opted for CCA, Hyderabad (and not Hyderabad zone) which comprises of both Hyderabad zone and Visakhapatnam zone and the CCA, Hyderabad allotted the applicants to Visakhapatnam Zone based on the vacancy position and thus, the contention of the applicants that though they opted for Hyderabad Zone, but they were allotted to Visakhapatnam zone is not correct. It is further stated by them that the CCA adopted a regular roaster for allocation of officers to Hyderabad/ Visakhapatnam zone on the parity of vacancies, but not randomly, as contended by the applicants. It is Page 6 of 11 OA No.20/537/2021 further contended that the rotation of Inspectors from Hyderabad Zone to Visakhapatnam zone is totally different from the transfer of Inspectors of Visakhapatnam Zone to Hyderabad Zone once for all, which is subject to availability of vacancies in Hyderabad zone. The first one is an obligation on the administration to rotate some Inspectors of Hyderabad zone to Visakhapatnam zone every year, whereas the other one is a facility provided for transfer of Inspectors of Visakhapatnam zone, who are willing for transfer to Hyderabad zone based on seniority and extreme compassionate grounds subject to availability of vacancies in Hyderabad zone. Accordingly, in the IZT Policy 2020 or even in the earlier policy of 2015, such a provision has been made making eligible those who have completed 4 years in Visakhapatnam Zone to seek transfer to Hyderabad one, but it does not mean all such officers will be entitled to be transferred. It is submitted by the respondents that the transfer is not a matter of right for an employee and who should be transferred and where to transfer is the matter for the appropriate authority to decide. Thus, they prayed to dismiss the OA.
7. The applicants filed rejoinder stating that though Visakhapatnam zone was created as a separate revenue zone, but the cadre is under the administrative control of the CCA, Hyderabad and the CCA, Hyderabad cannot give permanence of zone merely on allocation to Visakhapatnam zone. The Visakhapatnam zone could not be treated as parent zone of the applicants and they should be treated as transferees from Hyderabad zone and they are entitled to be considered for transfer back to Hyderabad zone even as per clause 5 of the IZT-2020. It is further stated by the applicants Page 7 of 11 OA No.20/537/2021 that in the year 2021, 81 Inspectors were allotted to Hyderabad zone and among them, 36 Inspectors were retained in Hyderabad zone and the remaining 45 were posted to Vizag zone. Thus, it shows that though there were 36 vacancies in Hyderabad zone, the requests of the applicants were not considered in 2020. It is also submitted that among the applicants, the applicants Nos. 5, 6, 7, 10, 11 & 12 (6 applicants) were re-transferred to Hyderabad zone.
8. Heard learned counsel for the parties and perused the pleadings/ material on record.
9. On appointment to the post of Inspector of Central Excise, the applicants were allotted to Visakhapatnam zone, comprising of Chief Commissioner‟s Office and Visakhapatnam-I, Visakhapatnam-II, Guntur and Tirupati Commissionerates. Appointment orders issued to the applicants show that they were appointed as Inspectors in the common cadre of Hyderabad/ Vizag zones and their inter-se seniority in the common cadre of Inspector of Hyderabad/ Vizag zones will be fixed as per the rules/ guidelines in force. It is further stated in the appointment order that they are liable to be transferred anywhere in the common cadre of Inspector in Hyderabad and Vizag zones in the State of Andhra Pradesh and on promotion, they are liable to be transferred anywhere in India.
10. As seen from the form the material filed along with the rejoinder i.e. the declaration of final result of CGL Examination 2013 on 20.05.2015 and that of the CGLE 2014 vide letter dt.30.09.2015 and the Annexure III thereto i.e. Form for indicating options/ preferences for allocation of Zones for the post of Inspector (Central Excise), 12/16 CCAs were enlisted, Page 8 of 11 OA No.20/537/2021 wherein the candidates were to indicate the name of the CCA and the Code of the CCA as their option/ preference. It is further mentioned in the Annexure III that the allocation shall be on merit cum preference basis and the submission of options/ preferences by a candidate does not confer any right to claim allocation of zones within the preferences indicated. Further, as seen from the Board letter dt. 01.09.2015, on the subject of allocation of Inspectors (Central Excise) recommended for appointment by SSC, it is stated that the allocation of candidates to various cadres has been made on „merit-cum-preference‟ basis (i.e. the candidates with higher merit/ rank had better chances of getting cadres of their preference), subject to availability of vacancies of relevant category in the various cadres.
11. Thus, the contention of the applicants that though they opted for Vizag zone, they were allotted to Hyderabad zone does not appear to be correct, because in the option form, there is no column seeking such option. What all sought in the option form was name of the CCA and the Code of CCA and in the instant case, the name of the CCA is Hyderabad CEx Zone and its code is „H‟.
12. Further, IZT 2020 was issued on 22.07.2020 in supercession of all the previous guidelines/ policies and the same is effective for five years till AGT 2024. Clause 3 of the said policy, upon which the applicant placed reliance, is as follows:
"3.Tenure in Visakhapatnam Zone:-
i. The tenure in Visakhapatnam Zone under criteria of „never worked‟ would be for a period of two years (660 days) in case of male officers and a period of one year (330 days) in case of lady officers. However, officers transferred under criteria of „station seniority‟ tenure in Visakhapatnam Zone would be one year (330 years).Page 9 of 11
OA No.20/537/2021 ii. On completion of tenure in the Visakhapatnam Zone, the officer would be transferred back to Hyderabad Zone. The tenure in Visakhapatnam Zone would be computed as on 30th June of the relevant year for the purpose of AGT.
iii. All kinds of leave (except the casual leave) and any kind of unauthorised absence would be deducted for computing the said tenure in Visakhapatnam Zone."
As contended by the respondents, clause 3, extracted above, would be applicable for transfer on rotation basis and it prescribes tenure in Visakhapatnam Zone under the criteria of „never worked‟. Thus, it has no application in case of the applicants, who are posted in Visakhapatnam zone on their selection and appointment.
13. Further, as per clause 5 of the IZT 2020, after completion of 4 years tenure, the Inspectors in Visakhapatnam zone, who are willing to come to Hyderabad zone, can apply for transfer and the same will be considered subject to availability of vacancies in Hyderabad zone. Clause 5 reads thus:
"5. IZT from Visakhapatnam Zone to Hyderabad zone:
"i) An officer in the cadre of Inspector who has completed a minimum tenure of 4 years in Visakhapatnam zone may apply for transfer to Hyderabad Zone. However, the condition of the said 4 years would be waived or reduced in case of extreme compassionate grounds viz., medical exigencies, etc.
ii) Request for transfer from Visakhapatnam zone to Hyderabad zone except in the case of extreme compassionate grounds, as mentioned above, would be considered at the time of AGT only, subject to availability of vacancies in Hyderabad zone."
A perusal of the above clause makes it clear that the inter-zonal transfer from Vizag zone to Hyderabad zone would be subject to availability of vacancies.
14. Admittedly, 37 requests including that of applicants, except applicant No. 13 for transfer from Vizag Zone to Hyderabad Zone under clause 5 of IZT Policy 2020 were considered by the AGT 2021, but the committee recommended only two cases for such transfer, but none of applicants were Page 10 of 11 OA No.20/537/2021 recommended due to lack of vacancies. However, the Committee, which met on 08.07.2021 observed that the requests of the other Inspectors including the applicants can be considered when fresh recruitees are posted. Further, as seen from the rejoinder, out of 81 new Inspectors recruited for Vizag/Hyderabad zone in 2021, 45 Inspectors were posted to Vizag zone, thereby retaining 36 in Hyderabad zone. That means, there appeared to be 36 posts of Inspectors vacant in Hyderabad zone in 2020 when the applicants made their request and despite that, their requests were not considered, as contended by the applicants. But subsequently, the applicants 5, 6, 7, 10, 11 & 12 were transferred to Hyderabad zone vide order dt. 17.11.2021. During the course of hearing, learned counsel for the respondents submitted that the requests of the remaining applicants would be considered for transfer to Hyderabad zone as and when vacancies arise in Hyderabad Zone.
15. In view of the above facts and circumstances of the case, the OA is disposed of with a direction to the respondents to consider cases of the remaining applicants for transfer from Visakhapatnam zone to Hyderabad Zone, in the next meeting of the committee for Annual General Transfers as per clause 5 of Inter Zonal Transfer Policy 2020, subject to availability of vacancies. There shall be no order as to costs.
(SUDHI RANJAN MISHRA) JUDICIAL MEMBER //evr// Page 11 of 11