Central Administrative Tribunal - Delhi
Sangeeta Gupta vs Union Of India on 14 October, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 1941/2009 New Delhi, this the 14th day of October, 2009 HONBLE MR. JUSTICE V.K.BALI, CHAIRMAN HONBLE MR. L.K.JOSHI, VICE CHAIRMAN (A) Sangeeta Gupta, Commissioner of Income Tax New Delhi, Q-2/1 M.S. Flats, Sector-13, R.K. Puram, New Delhi-110066 Applicant (By Advocate: Shri P.P. Khurana, Senior counsel with Ms.Seema Pandey) Versus 1. Union of India, Through Secretary, Ministry of Finance, Department of Revenue, New Delhi 2. The Chairman, Central Board of Direct Taxes, Department of Revenue, Ministry of Finance, New Delhi Respondents (By Advocate: Shri V.P. Uppal) ORDER
Mr. L.K. Joshi, Vice Chairman (A) Challenge in this OA is to the transfer of the Applicant, a Commissioner of Income Tax, from Delhi to Patna vide Order number 96 dated 11.07.2009 (Annex A-1), issued by the Central Board of Direct Taxes (CBDT), the second Respondent herein. The Applicant is a direct recruit, Group `A officer, of the Indian Revenue Service (IRS) of 1984 batch.
2. The executive profile of the Applicant giving a history of her postings in her career is reproduced below (Annex A-6):
S.No. Post Held Place From To Total Tenure
1. ITO Under probation Nagpur NADT 20.12.84 18.5.86 1 year 5 Months
2. ITO Allahabad 19.5.86 7.6.88 2 Years
3. ACIT(Inv.) Kolkata 8.6.88 3.6.90 2 Years
4. ADIT(Exempt) Kolkata 4.6.90 31.5.91 1 Year
5. ADIT(Inv.) Kolkata 31.5.91 4.2.94 2 Years 9 Months
6. DCIT(Hqrs.) Kolkata 4.2.94 19.5.94 4 Months
7. DCIT, Spl. Range-21 Kolkata 19.5.94 9.12.96 1 Year 7 Months
8. Director,Revenue, Delhi Jal Board On Deputation Delhi 10.12.96 31.3.99 2 Years 3 Months
9. JCIT/Addl. CIT Delhi 1.4.99 31.7.01 2 Years 4 Months
10. Director, ITA-II CBDT Exempted category Delhi 1.8.01 2.11.04 3 Years 4 Months
11. Member (AA) CIT (DR), ITAT Exempted category Delhi 3.11.04 9.6.06 1 Year 7 Months
12. CIT(DR), ITAT Lucknow Exempted category Lucknow 9.6.06 6.10.06 4 Months
13. CIT(A)-XIX Delhi 11.10.06 13.7.08 1 Year 4 Months
14. CIT (On study leave) Delhi 14.7.08 6.5.09 The executive profile has been prepared by the second Respondent CBDT. On the basis of the executive profiles of officers, prepared by the second Respondent, the Respondents circulated a list of officers of the rank of Commissioner, who were due for transfer as per the transfer policy of the Respondents. The name of the Applicant was not included in the list of such officers, who were due for transfer.
3. The Respondents issued guidelines for transfer of Group `A and Group `B officers of the Income Tax. These were revised in November 1999 and periodically, thereafter. The document issued on 9.09.2003 vide F.No.A-35015/50/2003-Ad.VI (Pt.I), came to be referred to as Transfer/ Placement Policy of Group `A Officers of IRS (Income Tax). The Transfer/ Placement policy was further revised in the year 2005 and is placed at Annex A-9. Some amendments were made by letters dated 14.11.2006 and 23.05.2007. By letter number 35015/65A/2006-Ad.VI dated 2.05.2008, an amended transfer/placement policy was issued so as to modify and clarify the provisions of the 2005 policy. This is placed at Annex A-10.
4. We may note some of the salient features of the Transfer/ Placement Policy, as amended. The objective of the document, as enunciated in the introduction, is reproduced below:
The Central Board of Direct Taxes, Department of Revenue, Ministry of Finance, is the Cadre Controlling Authority for IRS (IT) officers. In order to increase transparency, and also to provide better opportunities to officers for excellence and a more planned approach to cadre planning, a proper placement/transfer policy is a vital ingredient. This placement policy has been formulated to address the needs of the Department as well as the Human Resource Development aspects and career management of officers as a whole. The division of the country into five areas, as mentioned above, is given in paragraph 5.3.1, which is as follows:
5.3.1 The country will be divided into five Areas, viz., East, West, North, South and Central.
The region under the control of a Cadre Controlling Chief Commissioner of Income Tax, hereinafter referred to as Region, will be placed under the five Areas as under:-
NORTH - NWR, DELHI, LUCKNOW, KANPUR, JAIPUR EAST - KOLKATA, BHUBANESHWAR, GUWAHATI WEST - PUNE, MUMBAI, NAGPUR SOUTH - HYDERABAD, COCHIN, CHENNAI, BANGALORE CENTRAL - PATNA, BHOPAL, AHMEDABAD The paragraphs 5.3.2 to 5.3.7 of the transfer policy are extracted 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 of a Class `A station in a `cycle will be 8 years and 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 sub 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). Exceptions to the aforesaid policy are provided in paragraph 5.3.11 quoted below:
5.3.11 Exceptions on compassionate / administrative grounds may be made by the Placement Committee. The policy also provides for transfer on administrative grounds or in public interest in paragraph 10, which has been reproduced below for reference :
10.1 Every officer shall be subject to Rule 13 of IRS Recruitment Rules. Notwithstanding anything contained in this Policy, the Government may, if necessary to do so in public interest, transfer or post any officer to any station or post. No officer has any right to any post or to be posted to a particular Station/Region/Area.
10.2 In between two Annual General Transfer exercises, on administrative exigencies, the Placement Committee may shift a Commissioner from one charge to another charge in the same station. The Placement Committee may also shift officers of the rank of Additional Commissioners and below from one region to another.
10.3 An officer against whom the CVC has recommended initiation of vigilance proceedings should not normally be posted or remain posted at the station where the cause of the vigilance proceedings originated. This restriction will remain in operation till such time as the vigilance matter is not closed. However, such an officer shall under no circumstances be posted to a sensitive charge. Various places of postings (stations) have been declared as Class `A, Class `B and Class `C. Paragraph 5.4 (i) and 5.4 (ii) provide for exempted postings. These paragraphs have been reproduced below:
5.4 (i) All postings in the Board and in the Directorates of Vigilance, Systems and Administration, technical posts in the Department of Revenue, deputations/postings to Central Economic Intelligence Bureau (CEIB), Enforcement Directorate, Authority for Advance Rulings (AAR), Competent Authorities (CAs), Appellate Tribunal for Forfeited Property (ATFP), Income Tax Appellate Tribunal (ITAT) and Settlement Commission shall ordinarily not count towards calculation of stay at a particular station/ area, subject to the maximum limit of six years, but may be so counted at the option of the officer. However, an officer who has been on deputation/ posting to anyone of the aforesaid bodies shall not ordinarily be considered for another deputation/ posting to any of the aforesaid organizations without completing the minimum prescribed cooling off.
(ii) The posts in the Directorates falling under DGIT (International Taxation), DGIT (Training NADT and RTIs), DGIT (Systems) and Commissionerates or Computer Operations including centralized processing units will be ordinarily fixed tenure posts for a period of three years. However, considering the needs of the organization, the term may be extended to a period of five years. Kolkata was considered a hardship posting from 1998 to 2005 in the transfer guidelines/ transfer policy. The Class `A stations, as per the `Transfer Policy on 2003 (Annex A-6), included the following:
Delhi (including Faridabad, Ghaziabad, Gurgaon and NOIDA), Mumbai (including Thane & Kalyan), Ahmedabad, Hyderabad, Bangalore, Pune, Chandigarh, Panchkula, Ludiana & Jaipur. Kolkatta was classified as Class `B station, as indicated in Appendix II of the Transfer/ Placement Policy of 2003 (page 71 of the paper book). Kolkatta was first included as Class `A station only in the Transfer/ Placement policy of 2005 (page 83). This policy became effective from 1.04.2005.
5. As per paragraph 5.3.2, extracted above, the total posting period in Delhi CCIT (CCA) region is of 8 years cycle. As per paragraph 5.3.3 an officer shall not serve for more than one cycle in a CCIT (CCA) region during his entire service, including the service as Commissioner.
6. The Applicant has worked in Kolkatta station from 8.06.1988 to 9.12.1996. During this period Kolkatta was a hardship/Class `B station. The Applicant remained in Delhi from 10.12.1996 to 31.03.1999 (2 years 3 months) on deputation to Delhi Jal Board. From 1.08.2001 to 2.11.2004 (3 years 4 months) and 3.11.2004 to 9.06.2006 (1 year 7 months) she was in exempted category of posts and from 14.07.2008 to 6.05.2009, she was on study leave. Her posting as Joint/ Additional Commissioner at Delhi from 1.04.1999 to 31.07.2001 (2 years 4 months) and as Commissioner from 11.10.2006 13.07.2008 (1 year 4 months), total period of 3 years 8 months only would be counted towards the `cycle in Delhi. The learned senior counsel for the applicant would contend that the Applicants transfer from Delhi is a transgression of the Transfer/ Placement Policy because the Applicant is far short of permitted 8 years stay at Delhi. Citing the judgement of the Honourable Delhi High Court in W.P.(C) No.478/2008, The Secretary, Department of Revenue and another Vs. Sh. Ashok Mittal, he would contend that Transfer/ Placement Policy has to be uniformly applied to all officers. The following observation has been pointed out:
Learned counsel for the petitioner submits that the transfer policy is merely a guideline and it can be varied according to the exigencies of the situation. While this may be so, learned counsel has not been able to tell us why the officer was singled out for exceptional treatment or why the policy is not applicable to him.
7. The learned counsel for the Respondents has advanced the argument that under paragraph 5.4 (i) the exempted posting shall ordinarily not count. Therefore, he would contend that these could be counted towards a cycle, if the department so wished. This argument has no force whatsoever. As per paragraph 5.4 (i), the stay in exempted category of posts would ordinarily not be counted towards calculation of stay at a particular station, but it could be counted at the option of the officer concerned.
8. From the above discussion it is clear that the Applicants transfer out of Delhi has been contrary to the provisions of the Respondents transfer policy. The OA is, therefore, allowed and the impugned order number 96/2009, dated 11.07.2009 is quashed forthwith to the extent of the Applicants transfer out of Delhi. The Applicants transfer had already been stayed by way of order dated 22.07.2009. The Applicant would continue to be posted in Delhi and would be transferred out only strictly in accordance with the provisions of the Transfer/ Placement Policy of the Respondents. No costs.
( L.K. Joshi ) ( V.K. Bali ) Vice Chairman (A) Chairman /dkm/