Central Administrative Tribunal - Lucknow
Bashisht Narain Singh Son Of Late Sri ... vs Union Of India Through Secretary on 10 January, 2013
Central Administrative Tribunal, Lucknow Bench, Lucknow Original Application No. 362/2012 This the 10th day of January , 2013 Honble Sri Justice Alok Kumar Singh, Member (J) Bashisht Narain Singh son of late Sri D.P.Singh, presently posted as Commissioner, Central Board of Excise and Customs, Lucknow resident of 505, 6th Floor, Kasmanda Apartment, Hazratganj, Lucknow. Applicant By Advocate: Sri I.B. Singh, learned Sr.Advocate assited by Sri Prashant Singh Atal Versus 1. Union of India through Secretary, Ministry of Finance, Department of Revenue, Central Board of Excise and Customs, New Delhi. 2. Chairman, Central Board of Excise and Customs, New Delhi. 3. Placement Committee through its Chairman, Central Board of Excise and Customs, New Delhi. 4. Deputy Secretary to the Govt. of India, Central Board of Excise and Customs, North Block, New Delhi. 5. Sri Himanshu Gupta, Commissioner (Service Tax), Central Board of Excise and Customs, New Delhi. Respondents By Advocate: Sri Rajendra Singh (Reserved on 8 .1.2013) ORDER
HONBLE SHRI JUSTICE ALOK KUMAR SINGH, MEMBER (J) This O.A. has been filed for quashing the impugned transfer order dated 12th September, 2012 (Annexure A-1).
2. The facts in brief are that the applicant is a member of Indian Revenue Service and working on a Group A post under the respondents No. 1 and 4 under the Department of Central Board of Excise and Customs since 1982. He has to retire in January, 2014, i.e. next year.
3. The respondents have formulated a transfer/placement policy dated 5.4.2011 (Annexure A-3) of Group A officers of the IRS. According to para 9.4 of the policy, an officer having less than 3 years of service before superannuation may be considered for the posting at a place of his choice as far as possible. In view of this, the applicant exercised his option by providing five stations of choice in order of preference namely, (i)Kanpur (ii) Mumbai (iii) Nasik (iv) Lucknow and (v) Pune, which was forwarded through proper channel vide letter dated 26.11.2011. In terms of transfer policy, the applicant was transferred from Kanpur to Lucknow vide order dated 28.5.2012. Since then, he is performing his duties and neither there is any complaint nor any vigilance enquiry against him.
4. The applicant has come from the post of Commissioner (Appeal) Kanpur to Commissioner , Lucknow i.e. from non-sensitive category to sensitive category and in terms of para 7.2 of the transfer policy, ordinarily the tenure of an officer on a sensitive post shall be 2 to 3 years at one stretch. But in utter violation of the aforesaid para 7.2 of the transfer policy, the applicant has again been transferred vide impugned order dated 12.9.2012 from Commissioner (Lucknow) (sensitive category) to Commissioner (Appeal), Allahabad (Non-sensitive category) within 3 months of his posting as Commissioner, Lucknow. Since 1982, i.e. the year of joining of the applicant in GroupA post for more than 22 years of his service, he has been posted on non-sensitive post. The impugned order is also violative of Article 14 and 16 of Constitution of India and is also discriminatory and it suffers from legal malice as it does not spell out any reason or public interest or administrative exigency on its face.
5. The respondents 1 to 4 have filed joint counter affidavit sworn by Sushree Surakha Katiyar, Additional Commissioner , CCO, Lucknow. In respect of para 7.2 of the transfer policy, it has been said that it does not provide that the officer should be compulsorily posted on such a post for 2 to 3 years. Para 2.5 of the transfer policy provides that notwithstanding anything contained in the Transfer policy, Govt. may, if necessary, in public interest or in any administrative exigency, transfer or post any officer to any station or post. Accordingly, the applicant has been transferred by the competent authority on administrative exigency (para 17). Regarding article 14 and 16, it has been pleaded that it pertains to Equality of opportunity in matters of public employment and there is no violation as far as the appointment of the applicant is concerned. The reasons for transfer in case where there is administrative exigency are not mentioned in the transfer order. Further, in terms of para 2.3 of the transfer policy, all grievances arising out of the implementation of the transfer policy have to be addressed in accordance with the guidelines issued by the DOP&T, only after the officer has joined his new assignment. In para 22 of the CA, it has been reiterated that the transfer order of the applicant is an out come of the administrative exigency.
6. Rejoinder Reply has also been filed by the applicant, mostly reiterating the pleadings and averments made in the O.A.
7. During the pendency of the O.A., the respondents field a writ petition against the interim order which was granted in favour of the applicant on 17.9.2012. The Honble High Court however, disposed of the writ petition by providing that if the petitioner prefers an application for vacation of stay order, the Tribunal shall make best endeavor to dispose of the same within a period of 15 days from the date of filing of such an application .This order is dated 28.9.2012. After a gap of about 3 weeks, i.e. on 22.10.2012, the respondents filed stay vacation application (M.P. No. 2414/2012) along with electrostat copy of the writ petition and the above order of the Honble High Court.
8. On 14.12.2012, it was found that Rejoinder reply has not been filed. Therefore, it was provided that the same maybe filed before the next date to enable the Tribunal to adjudicate the matter finally on the same day. As already mentioned, Rejoinder Reply has been filed and therefore, final arguments were heard and this O.A. is being disposed of finally.
9. The law has been settled on the point that transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential conditions of service in the absence of any specific indication to the contrary, in the law governing on conditions of service. Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but it cannot have consequence of depriving or denying the competent authority to transfer a particular officer/ servant to any place in public interest and as in exigencies of service. In the present case, the respondents have specifically averred in their C.A. (para 17 and 22) that the impugned transfer order is an outcome of an administrative exigencies. In para 14 of the CA a specific reference has been made to para 2.5 of the transfer policy, which provides that notwithstanding anything contained in the Transfer policy, Govt. may, if necessary, in public interest or in any administrative exigency, transfer or post any officer to any station or post. Further, it has been said that it may not be feasible to specify administrative exigency in a particular case. Specific reference has also been made to para 2.3 of the transfer policy which provides that all grievances arising out of the implementation of the transfer policy shall be addressed in accordance with the guidelines issued by the DOP&T only after the officer has joined his new assignment. Accordingly, the applicant should have represented before the competent authority after jointing at new place before filing this O.A., it was submitted. Admittedly, the applicant has not moved any such representation. The enforceability of transfer guidelines came up for consideration before the Honble Apex Court in the case of Shilpi Bose and others Vs. State of Bihar reported in AIR 1991 SC 532 and Union of India Vs. S.L. Abbas reported in AIR 1993 SC 2444 and it was laid down that guidelines do not confer upon the Govt. employees a legally enforceable right. Such transfer orders can be questioned in the courts or Tribunals only if the same are malafide or made in violation of statutory provisions. In the case of Shilpi Bose , it was also laid down that Govt. servant has no vested right to remain posted at one place or the other and transfer orders do not violate any of his legal rights. Even if a transfer order is passed in violation of instructions, the courts ordinarily should not interfere with the order. Instead the affected party should approach the higher authorities in the Department.
10. The learned counsel for the applicant placed his reliance on the case of Somesh Tiwari Vs. Union of India and others reported in (2009) 2 Supreme Court Cases, 592. In this case malice in fact and malice in law were explained and it was held that an employees transfer on the basis of non-existent facts is a malice in law. But in the present case, the respondents have specifically said that the transfer has been made on the ground of administrative exigency. In the above case of Somesh Tiwari, there was an anonymous complaint which was investigated by the Department but nothing adverse was found , yet he was transferred from Bhopal to Shilong. But in the present case there is no such situation. The applicant himself has pleaded that there is neither any vigilance enquiry nor any complaint against him and these averments have not been controverted from the side of the respondents.
11. From the side of the respondents, reliance has been placed on the case of Rajendra Singh Vs. State of U.P. and others reported in (2009) INSC 1351 (31st July, 2009). In this case also, the case of Shilpi Bose has been referred about which a mention has already been made above. Reliance has also been placed from the side of the respondents on the case of National Hydroelectric Power Vs. Sri Bhagwan decided on 11th September, 2001 [Appeal (Civil ) 1095-1096 of 2001]. In this case, it was held that unless an order of transfer is shown to be an out come of malafide exercise of power of stated to be in violation of statutory provisions prohibiting any transfer, the courts or the Tribunals cannot interfere with such matters as a matter of routine, as though they are the appellate authorities substituting their own decision for that of the Management, as against such orders passed in the interest of administrative exigencies of the service concerned. Reliance has also been placed from the side of the respondents on an order/ judgment rendered by this Tribunal in O.A. No. 335/2012 (Dharmendra Srivastava Vs. Union of India and others), in which the case laws of Shilpi Bose (supra), the case of S.L. Abbas (supra) and about 8-9 more cases were considered and the request for quashing the transfer order was rejected and the O.A. was dismissed. The learned counsel for the respondents also referred to para 6 of the affidavit filed in the writ petition before the Honble High Court ( which has been filed along with stay vacation application) wherein it is mentioned that as per para 3.1 of the transfer policy, prior approval of Honble Finance Minister through Revenue Secretary is required in case of transfer of a Group A officer. Since by means of impugned order dated 12.9.2012, all the ten Group A officers including the applicant have been transferred, therefore, this order was issued by the competent authority with the prior approval of the Honble Finance Minister. This has not been controverted. To sum-up the matter, the impugned order has been passed by the competent authority on administrative exigency. The provision of Article 14 and 16 of the Constitution of India are not applicable in the transfer matters as claimed by the applicant. The contention of legal malice could not be substantiated by the substantial material on record.
12. Having regard to the discussion made hereinabove and also keeping in view the preposition of law laid down by the Honble Apex Court as discussed hereinbefore, this Trbunal finds itself handicapped in interfering with the impugned transfer order. However, in furtherance of the transfer order, after joining at the place of posting, the applicant may make a representation before the authorities concerned and it is provided that if such a representation is made, the same shall be disposed of expeditiously say within a fortnight from the date it is submitted, in accordance with law by means of a speaking and reasoned order. With these observations, O.A. is disposed of. No order as to costs.
(Justice Alok Kumar Singh) Member (J) HLS/-