Central Administrative Tribunal - Delhi
Mr. Vivek Batra vs Union Of India on 4 February, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 1661/2009 New Delhi, this the 4th day of February, 2010 HONBLE MR. JUSTICE V.K. BALI, CHAIRMAN HONBLE MR. L.K. JOSHI, VICE CHAIRMAN (A) Mr. Vivek Batra Working as Additional Commissioner of Income Tax, Exemptions Range I & II, Mumbai Residing at: B-22, Income Tax Colony, Pedder Road, Mumbai. Applicant (By Advocate: Shri A.K.Behera) vs. 1. Union of India Through the Secretary, Department of Revenue, Ministry of Finance, North Block, New Delhi-110001. 2. The Chairman, Central Board of Direct Taxes, Department of Revenue, Ministry of Finance, North Block, New Delhi-110001. Respondents (By Advocate: Shri V.P.Uppal) O R D E R Mr. L.K. Joshi, Vice Chairman (A) :
The short question to be answered in this OA is whether the transfer of the Applicant, an Indian Revenue Service (Income Tax) Officer of 1992 batch, by order dated 12.06.2009, is in contravention of the Transfer Policy of the Respondents.
2. The case of the Applicant is that, as per the Transfer Policy of the Respondents of IRS officers, he could not have been transferred from Mumbai Region to Nagpur Region. The relevant clauses of the Transfer Policy are quoted below:
5.3.2 A total posting period of 16 years in a CCIT(CCA) Region shall be counted as a cycle. However, in Mumbai and Delhi CCIT(CCA) Regions, since there are no Class B and Class C stations, one cycle will be of 8 years.
5.3.3 An officer shall not serve for more than one cycle in a CCIT (CCA) Region during his entire service up to and including the rank of Commissioner.
Illustration 1: An officer shall not serve for more than 16 years in CCIT (CCA) Pune Region.
Illustration 2: An officer shall not serve for more than 8 years in CCIT (CCA) Mumbai Region.
5.3.4 An officer shall be posted to another CCIT(CCA) region after he has completed a cycle of posting in a CCIT(CCA) Region.
5.3.5 The maximum tenure at a Class A station in a cycle will be 8 years, the remaining period will be spent in Class B and Class C stations.
Provided that if there is no vacancy in a Class B or Class C station in that CCIT (CCA) Region the officer may be posted to a Class A station in that CCIT (CCA) Region.
5.3.6 As far as possible, minimum tenure in Class B + Class C stations in each cycle shall be 6 years.
5.3.7 Subject to such paragraphs 5.3.2 to 5.3.6, the maximum total tenure in Class A stations during service up to and including the rank of Commissioner shall be 18 years.
Provided that the maximum continuous stay in A stations in Departmental posts (including posts exempted as per para 5.4 (i)) shall not exceed 14 years.
Provided further that the maximum tenure in the entire career in A stations (combined) shall not exceed 22 years (including exempted posts and all deputation posts outside and/or within the Department).
5.3.14 A stay of more than nine months at a station (to be computed as on 31st December of the previous year) will be treated as a complete year, and the length of the period of stay shall be counted from the date of joining in that Station/Region/Area. The learned counsel for the Applicant would contend that as per the history of the Applicants posting at various places, he has not completed 14 years of continuous stay in A stations, as per the first proviso to clause 5.3.7 of the Transfer Policy, read with clause 5.3.14. The profile of the Applicants posting has been placed at Annex-2, which is reproduced below:
POSTING PROFILE OF VIVEK BATRA Year Place of posting Whether completed 9 Months at a station during the year as on 31st Dec No. of Completed years in Class A Stations as defined in Para 5.3.14 of the Policy(Progressive) 1994 (upto 12.04.1994) Nagpur No 1994 (13.04.94 to 31.12.1994) Delhi No 1995 Delhi Yes 1 1996 Delhi Yes 2 1997 Delhi Yes 3 1998 Delhi Yes 4 1999 Delhi Yes 5 2000 Delhi Yes 6 2001 Delhi Yes 7 2002 Delhi Yes 8 2003 (Upto 06.04.2003) Delhi No 2003 (07.04.2003 to 31.12.2003) Mumbai No 2004 Mumbai Yes 9 2005 Mumbai Yes 10 2006 Mumbai Yes 11 2007 Mumbai Yes 12 2008 Mumbai Yes 13 2009 Mumbai No Excluding the period from 7.04.2003 to 31.12.2003, which is less than nine months, the period of stay in Mumbai is only 5 years. The following averment has been made in paragraph 4.2 of the amended OA (page 172 of the paper book):
4.2) The Applicant further states that he joined at New Delhi in April 1994 and on completion of tenure of 8 years, was transferred to Mumbai Region. The Applicant joined at Mumbai on 07.04.2003. The Applicant has thus served for only five complete years of posting in Mumbai. The posting profile of the Applicant is annexed hereto and marked as Annexure A-2. This has not been denied by the Respondents in their reply and it is stated to be a matter of record.
3. The learned counsel for the Applicant has relied on order dated 7.10.2009 in OA number 530/2008 and three other OAs of the Mumbai Bench of this Tribunal. The issue in the aforementioned OA has been stated thus in the order:
7. The case of the applicant is that as per the respondents own elaborate Transfer Policy, he has not completed the minimum period for the transfer in question. The applicant submits that as per clause 5.3.14 of the said Transfer Policy, the stay of only more than 9 months has to be computed as one complete year that too on 31st December of the previous year. The applicant submits that he came to Mumbai on transfer in the middle of year 1999, precisely on 1999 (date illegible). Therefore, he did not complete the period of more than 9 months so as to constitute one complete year within the meaning of the Transfer Policy. That period has to be excluded for the computation of period of one cycle of 8 years in Mumbai, which is classified as Group A city. Similarly, the applicant submits that in February, 2002, the applicant was taken as C.G.D. (Officer on Special Duty) to the Finance Minister on administrative grounds by the respondents. He was, therefore, away to Delhi for a period of about 5 to 6 months. In the circumstances, he did not complete one year in Mumbai within the provisions of Clause 5.3.14 of the Transfer Policy. This period is also to be excluded for the purpose of computation of cycle of 8 years of stay in Mumbai. The Tribunal (Mumbai Bench) held thus:
15. In the case of the applicant in O.A. 530/2008, namely Shri Ravi Shankar Shrivastav, paragraph 5.3.14 of the Transfer Policy is also relevant and is reproduced herein below:
5.3.14 A stay of more than nine months at a station (to be computed as on 31st December of the previous year) will be treated as a complete year, and the length of the period of stay shall be counted from the date of joining in that Station/Region/Area. 15.1 A bare perusal of para 5.3.14 of the said Transfer Policy clearly points out that a stay of more than 9 months at a station preceding 31st December of that particular year is only considered as a complete one year for the purpose of computation of the total duration put in by an incumbent at a particular station. In the present case, the respondents have not at all denied the fact that this applicant did not complete a continuous service of nine months either in the year 1999 or in 2002 at Mumbai. In the circumstances, the action of the respondents in excluding the said two years for the purpose of completion of 8 years cycle at Mumbai is against the provision of their own professed Transfer Policy and, therefore, untenable in law and on facts.
15.2 The applicant in this O.A., (Shri Ravi Shankar Shrivastava), admittedly joined the Mumbai Office in July, 1999, therefore, he did not complete a period of more than 9 months by December, 1999. Similarly, he remained out of Mumbai for a period of five months because he was sent on deputation. This period also requires to be excluded for the purpose of computation of a continuous period of one year. Indeed, it appears from a reading of written arguments and documents supplied by the parties that during the Annual General Transfer pertaining to the year 2009, the respondents have done the right calculation regarding the period of stay of applicant at Mumbai and have counted the tenure as seven years only by excluding the said two years, i.e., 1999 and 2002. It is, thus, evident that the respondents have treated the applicant as not due for transfer for the Annual General Transfer, 2009. Therefore, the respondents could not have transferred the applicant in the year 2008 by taking the said two spells into account while calculating the period of eight years cycle in consonance with the Transfer Policy.
4. The learned counsel for the Respondents, on the other hand, would contend that under clause 5.3.14 it is at the Respondents discretion to count the period of less than nine months as full year or not count it as a full year.
5. We cannot agree with the Respondents interpretation of clause 5.3.14. There is no ambiguity in it. A period of posting of less than nine months as on 31st of December of a particular year would not be counted. There can be no discretion in this matter, as the learned counsel for the Respondents has contended, because it would then lead to discrimination.
6. In the result, the OA succeeds. The Applicants transfer is de hors the Transfer Policy of the Respondents. The order of transfer dated 12.06.2009 is set aside to the extent of the Applicants transfer. No costs.
( L.K. JOSHI ) ( V.K. BALI )
Vice Chairman (A) Chairman
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