Central Administrative Tribunal - Delhi
Yogender Mittal vs Union Of India on 10 February, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No. 1868/2013 with O.A. No.1941/2013 Reserved On:13.01.2014 Pronounced on:10.02.2014 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) OA No.1868/2013 Yogender Mittal, Age 34 years Dy. Commissioner of Income Tax (Prosecution), S/o Shri Mahesh Chand Mittal R/o 302, Ratnagiri Apartments, Kaushambi, Ghaziabad, Uttar Pradesh-201010. ..Applicant By Advocate: Shri Sachin Chauhan. Versus 1. Union of India Through the Secretary, Ministry of Finance, North Block, New Delhi. 2. The Secretary, Ministry of Finance, Department of Revenue, Central Board of Direct Taxes, North Block, New Delhi. 3. The Member (P&V), Central Board of Direct Taxes, New Delhi. 4. The Chief Commissioner of Income Tax (CCA), C.R. Building, New Delhi. ..Respondents (By Advocate: Shri R.N. Singh) OA No.1941/2013 Raman Kant Garg, Age 44 years Addl. Director of IT (Systems IV)(1) S/o Shri Hem Raj Garg, R/o D-II/315 Vinay Marg, Chankya Puri, New Delhi-110 001. Applicant By Advocate: Shri Sachin Chauhan. Versus 1. Union of India Through the Secretary, Ministry of Finance, North Block, New Delhi. 2. The Secretary, Ministry of Finance, Department of Revenue, Central Board of Direct Taxes, North Block, New Delhi. 3. The Member (P&V), Central Board of Direct Taxes, New Delhi. 4. The Chief Commissioner of Income Tax (CCA), C.R. Building, New Delhi. ..Respondents (By Advocate: Shri R.N. Singh) ORDEROA No.1868/2013
The Applicants in these Original Applications have challenged their respective transfers from Delhi to Chennai and Delhi to North Eastern Region on administrative grounds.
2. The Applicant in OA No.1868/2013 was initially appointed as an Assistant Commissioner of Income Tax by the Central Board of Direct Taxes (CBDT for short) in the year 2006. On completion of training, he was posted in Delhi vide order dated 28.04.2008 and joined the office of Chief Commissioner of (CCA) on 16.05.2008. Now, vide the impugned order dated 24.5.2013 he was transferred to the office of Chief Commissioner Chennai (CCA) on administrative ground. On receipt of the aforesaid order, he made a representation to the Member (P&V), CBDT on 27.05.2013 stating that he was transferred before completion of the 8 years continuous stay in Delhi and, therefore, it was against the prescribed guidelines. He has also mentioned some of his family problems. In this regard, he has relied upon para 4.3 of the transfer of placement guidelines for officers of the Indian Revenue Service CBDT-2010 which reads as under:-
4.2 The total stay of an officer during the course of his entire career, in all grades (in Group A Service), including and up to the grade of Commissioner of Income Tax, in a particular Region shall not exceed eighteen years in field postings, and twenty-four years in all including periods spent on exempt posts/deputation.
4.3(i) All Group A officers (subject to 4.4) below, shall be liable for transfer at the commencement of the Financial Year, if they have as on 31st December of the preceeding year completed in field posting
(a) 8 years of continuous stay in field postings in the following eight metropolitan stations:
New Delhi, Mumbai, Ahmedabad, Bangalore, Hyderabad, Pune, Chennai, Kolkatta.
(b) 5 years of continuous stay in field postings in respect of the following stations:
Amritsar, Baroda, Bhopal, Bhubaneshwar, Chandigarh, Coimbatore, Indore, Jaipur, Kanpur, Kochi, Lucknow, Ludhiana, Nagpur, Patna, Surat, Vishakapatnam.
(c ) 3 years of continuous service in field postings in respect of other stations.
(ii) The officers may, however, be transferred out before the completion of their tenures on their own request or on administrative grounds/in public interest.
He has also stated that the aforesaid order of transfer is against the very purpose of the placement/transfer guidelines which is as under:-
1.1 The Central Board of Direct Taxes (the Board), Department of Revenue, Ministry of Finance, is the Cadre Controlling Authority for the Indian Revenue Service (IRS) officers. In order to bring greater efficiency, effectiveness and transparency, and also to provide better opportunities to officers for excellence and proper career planning, appropriate placement/transfer guidelines are a vital ingredient. These placement guidelines have been formulated with the primary objective to align human resource management in the IRS with the overall organizational goals of the Income Tax Department (ITD), and more particularly better career management of the officer cadre as a whole.
3. The Applicant has also stated that there are many officers who are having longer stay than that of the Applicant in Delhi but they are being retained. He has also stated that the present order of transfer under the garb of administrative grounds is an arbitrary and discriminatory act and thus bad in law. The Respondents are in fact adopting a pick and choose policy and the present transfer order is being imposed upon the Applicant and the same is in absolute violation of transfer policy.
4. He has further stated that in the month of January 2013 a false FIR was registered against him by CBI under Section-7, 12 and 13(2) r/w 13(1)(d) of POC Act but till today not even a challan has been filed before the court of law by the investigating agency as it has no evidence against him. He has also stated that any transfer of an honest officer on the basis of false FIR cannot be termed as a transfer in public interest.
5. The learned counsel for the Applicant has also submitted that the aforesaid order of transfer is in violation of the principle laid down by Rajasthan High Court in Asu Singh Vs. State of Rajasthan 1983 (3) SLR 783 wherein it has been held as under:-
43. In this view of the matter I am inclined to observe that once the administrative instructions or the executive orders are passed to lay down guidelines for doing a particular act, it would not be open to say that it may or may not follow those guidelines or instructions. True it is that, in certain matters the guidelines cannot or need not be strictly followed for certain reasons. But if there is no such reason then any act in disregard to those instructions can be challenged and would be open to scrutiny by courts.
He has also relied upon the order of the Bombay Bench of this Tribunal in the case of Sugrive Meena Vs. Union of India and Another 2013(1) SLJ CAT 271 wherein it has been held that transfer against transfer policy can be challenged. The relevant part of the said judgment is as under:-
31. From the above mentioned statement of the applicant, it appears that the applicant has made out a case of discrimination resorted to by the respondents in issuing order of transfer. The respondents, by referring to this 36% vacancies, made an attempt to justify that the transfer of the applicant is in exigency of service. Such 36% vacancy position is definitely a problem for the administration but the same points finger to the administration only. For filling up the said vacancies, the authorities cannot pick and choose giving total go bye to the transfer policy. The respondents are required to apply the transfer policy uniformly and apply the same yardstick for each and every transfer. However, it is not for the Court to trespass into the domain of administration but for only exercising limited jurisdiction of judicial review of the order under challenge.
32. From the records I did not find any statement of the Placement Committee regarding any exigency of service which necessitated the Committee to transfer the applicant in deviation of the Transfer Policy or the Placement Committee for that purpose sought any approval from the Finance Minister. Although, from their own showing from the history of posting it is crystal clear that the applicant is no where close to completion of 8 years tenure in Mumbai being the 'A' station or 14 years in an area or Zone i.e. Western Zone to which Mumbai belongs. The applicant has been serving in Mumbai since 5.5.2008. The record shows that initially from 5.5.2008 to 28.3.2010 he was in the Directorate of Audit, which posting will be exempted from counting the tenure and thereafter in Mumbai itself in CEX Zone from 1.4.2006 till 9.6.2010. He was appointed as Additional Commissioner, Belapur on 10.6.2010 and continued till the date of order of the transfer i.e. 7.6.2012.
33. The object of framing Transfer/Placement Policy is to increase transparency and also to provide better opportunities to officers for excellence and a more planned approach to cadre planning. The Transfer Policy is a vital ingredient. Such Transfer Policy has been formulated to address the needs of the department as well as Human Resource Development aspects and Career Management of officers as a whole. A high power Committee has to consider the parameters contained in the Transfer Policy while effecting the transfer. The provisions in the Transfer Policy should be the actual basis of transfer of hundreds of members of Central Excise and Customs. As such, the Placement Committee is required to apply the same yardstick meticulously and in uniform manner in respect of all the officers. The Transfer Policy also provides that in the event Placement Committee in view of administrative need decides to deviate from the Transfer Policy would seek approval from the Government i.e. Finance Minister in terms of Paragraph 3.2 of the Transfer Policy.
34. The minutes of the Placement Committee with regard to the Annual General Transfer of 2012 shows that the Placement Committee, merely considered 7 cases for the purpose of taking approval of the Finance Minister. Since according to the Placement Committee in those cases only they deviated from the Transfer Policy. From the records it would further be evident, that in respect of those 7 cases in the remarks columns, inter alia, following justification have been given:--
(1) Child studying in Class 12;
(2) Seriously ill dependent father in two cases;
(3) On medical grounds.
35. The whole object of framing such Transfer Policy in a welfare state is to eliminate the possibility of any arbitrary or discriminatory approach by the authorities in effecting such transfer. The underlying idea in laying down such an exhaustive and detailed policy is to exclude not only arbitrariness but also bias or mala fide in any manner whatsoever. There could not be any dispute with regard to the said proposition of law that the administration is the sole authority to decide the posting and transfers of officers. The scope of judicial review in transfer matter is also circumscribed as to fair exercise of power, absence of mala fide and violation of statutory provisions as well as deviation from the professed norms or guidelines.
36. The Hon'ble Supreme Court in the case of Union of India & Others v. S.L. Abbas, MANU/SC/0370/1993 : 1993 (4) SCC 357, held that although transfer guidelines does not confer upon the Government employee a legally enforceable right, but in the same judgment the Hon'ble Apex Court held that while ordering the transfer, there is no doubt that the authority must keep in mind the guidelines issued by the Government on the subject.
37. The Hon'ble Supreme Court in the case of Sarvesh Kumar Awasthi v. V.P. Jal Nigam and Others, SLP (C) No. 2523 of 2001, decided on September 4, 2001 held that-
transfer of officers is required to be effected on the basis of set norms or guidelines. The power of transferring an officer cannot be wielded arbitrarily, mala fide or an exercise against efficient and independent officer or at the instance of politicians whose work is not done by the officer concerned.
38. In the case of Rajendra Roy v. Union of India & Anr., MANU/SC/0430/1993 : 1993(1) SLJ 93 (SC) : (1993) 1 SCC 148, the Hon'ble Supreme Court held that "the Court and the Tribunal should not interfere with the order of transfer unless such order is passed mala fide or in violation of the rules of service and guidelines for transfer without any justification".
39. From the proposition of law as settled by the Hon'ble Apex Court it would appear that normally the Tribunal will not interfere with the order of transfer which is an incidence of service unless it is shown to be clearly unjustified, arbitrary or vitiated by mala fide or infraction of any professed norms or principles governing the transfer. Therefore, the Hon'ble Supreme Court consistently held that if an order is passed in infraction of any professed norms or principles governing the transfer, which alone could be scrutinized judicially, the Tribunal or Court may interfere with such orders unless a strong case of administrative need is made out for deviation from the professed norms and/or policy. Such interference may be made only when a judicially manageable and permissible ground is made out.
40. The Hon'ble Supreme Court in the case of Ramana Dayaram Shetty v. International Airport Authority of India, MANU/SC/0048/1979 : AIR 1979 SC 1628, held that "it is a well-settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on the pain of invalidation of an act in violation of them. This rule was enunciated by Mr. Justice Frankfurter in Vitarelli v. Seaton, (1959) 359 US 535 : 3 L Ed 2d 1012]" where the learned Judge said:--
An executive agency must be rigorously held to the standards by which it professes its action to be judged ..... Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed ......This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword.
It has been further held that:
it is indeed unthinkable that in a democracy governed by the rule of law the executive Government or any of its officers should possess arbitrary power over the interests of the individual. Every action of the executive Government must be informed with reason and should be free from arbitrariness. That is the very essence of the rule of law and its bare minimum requirement.
This principle has been applied to myriads of cases involving violation of administrative instructions or guidelines covering not only tenders but other fields.
41. The decision of the Hon'ble Supreme Court Union of India v. Muralidhara Menon, MANU/SC/1487/2009 : 2010(1) SLJ 361 (SC) : 2009(9) SCC 304, is an useful instance of the binding nature of administrative instruction or circulars".
42. In the case of K.P. Prabhavathi v. Deputy Divn. Manager, Syndicate Bank, 1995(5) SLR 100 (AP), it has been held that "norms or guidelines framed by the central office cannot be deviated from by zonal offices in the absence of any power being conferred on such offices to frame guidelines or norms and hence, where the central officer guideline provided that a lady employee could not be transferred outside the zone, the transfer of such lady employee in violation of such norm would be illegal".
43. In the case of Asu Singh v. State of Rajasthan, 1983(3) SLR 783, at Page 784 (Raj) after referring to the observations of the Hon'ble Supreme Court in Union of India v. K.P. Joseph, MANU/SC/0610/1972 : 1973 SLJ 1 (SC) : AIR 1973 SC 303, the Learned Judge of Rajasthan High Court said that it was too wide a proposition to canvass that an administrative order could not confer any right and observed that once the administrative instructions or an executive order was passed laying down guidelines for doing a particular act it would not be open to say that it might or might not follow those guidelines or instructions.
44. In Home Secretary, U.T. of Chandigarh and Anr. v. Darshjit Singh Grewal and Ors. MANU/SC/0551/1993, the Hon'ble Supreme Court held that the policy guidelines are relatable to the executive powers of the administration and having enunciated a policy of general application and having communicated to all concerned, the administration was bound by it till such time as the policy was changed.
45. This Tribunal, while deciding the case of Mrs. Beena Dinesh v. Union of India & Others, O.A. No. 366/2009, dealt with the Transfer/Placement Policy for Group 'A' Officers of the Indian Revenue Service, (Central Board of Direct Taxes) which is almost pari materia of the Transfer/Placement Policy of Group 'A' Officers of Indian Revenue Service (Customs & Central Excise). This Tribunal referred to the judgment in the case of Virendra Ojha & 3 Others v. Union of India & Others, O.A. 519/2008 & 3 Others, as well as the judgment of Principal Bench passed in the case of Alok Johri & Others v. Union of India & Others, O.A. 1510/2006, decided on 13.10.2006 and reproduced Para 26 of the judgment in Alok Johri (supra) which is as follows:
Para 5.3.4 is an important aspect and feature of the policy, which has to pay its due role particularly when a person is transferred to another region. According to said sub-para, the posting to another region is circumscribed and conditioned by completion of "one cycle of posting". As already noticed, a cycle is 16 years in a region with an exception in cases of Mumbai and Delhi regions where it is of 8 years. It appears that mandate of policy is that once an officer is posted to a region, he cannot be transferred to another region, though he can be shifted/posted/transferred within a region till he completes "one cycle of posting", including different categories of stations. In other words, once a person is posted to a region, he should be allowed to complete "one cycle of posting" except in cases covered under Para 9, i.e. public interest/administrative grounds.
This Tribunal further held that decision in the case Alok Johri (supra) attained finality in view of the withdrawal of the writ petition filed before the Hon'ble Delhi High Court by the respondents.
46. Learned Counsel for the applicant has relied on the judgment of this Tribunal in the case of Santosh Jangre & 2 Others v. Union of India & Others, O.A. No. 271/2007 & 2 Others, decided on 20.8.2007 by Bombay Bench of this Tribunal. The said matters dealt with the Transfer/Placement Policy for Group 'A' Officers of Indian Revenue Service (Income Tax) Central Board of Direct Taxes, 2005. This Tribunal set aside the orders of transfer for deviating from the professed transfer policy and held as follows:
we observe that having posted them in the particular Regions on regular promotion, respondents could not have transferred them before completion of the prescribed cycle of 8 years. However, in case they wanted to deviate from the guidelines, they had to seek approval from the Government i.e. the Finance Minister through MOS(R) and Revenue Secretary. The respondents have miserably failed to comply with the mandatory requirement thereby usurping the power of the Government i.e. Finance Minister in the process of making transfer in question.
The judgment passed by this Tribunal was upheld by the Hon'ble Bombay High Court. Paragraph 2 of the order of Hon'ble High Court reads as under:
Thus, after the promotion orders were issued to the respondents in December, 2006, they ought to have been transferred immediately. The petitioners chose to continue the respondents in the same region even after promoting them and therefore, the Tribunal has rightly found that the transfers effected before completion of 8 years in the region, on promotion is violative of the Transfer Policy of 2005.
47. Although the respondents sought to make out a case that there has been no deviation from the Transfer Policy in effecting the transfer of the applicant but from the pleadings, records and submissions it is more than evident that the respondents deviated from the Transfer Policy in issuing the transfer order in respect of the applicant.
48. Assuming the applicant was transferred in administrative need although he completed two years of his maximum 8 years' tenure in the present station, it is not understood why the Placement, Committee did not seek approval from the Finance Minister for effecting such transfer in terms of Para 3.2 of the Transfer Policy as was done in respect of seven cases or why there is not even a scanty reference in the minutes of the meeting of the Transfer/Placement Committee. I do not find any force in the statement or submission of the respondents that the Transfer Policy has not been violated inasmuch as transfer could be effected even after completion of barely two years since maximum number of years in 'A' station is 8 years. As discussed above, the records of the respondents say otherwise.
49. In view of the facts and law as discussed herein above, this Original Application is allowed. The order of transfer of the applicant vide transfer order dated 7.6.2011 is quashed and set aside. There will be no order as to costs.
6. The Respondents in their reply has stated that the Applicant has got no vested right to be posted at a particular place of his choice. Moreover, it is settled law that the transfer is an incidence of service and the employee can be posted at any place at the discretion of the administration in public interest. They have also stated that the impugned order is just, bonafide and passed by the competent authority in the administrative interest and no statutory rule has been violated nor the same is result of any mala fide. Further, the Court or Tribunal cannot interfere with the transfer of the employee as held by the Apex Court in Mrs. Shilpi Bose and Other Vs. State of Bihar AIR 1991 SC 532, Union of India Vs. S.L. Abbas 1993 (4) SCC 357, State of U.P. & Others Vs. Goverdhan Lal 2004 (3) SLJ (SC) 244. The High Court of Delhi also in its judgment in Sujata Kohli Vs. High Court of Delhi 148 (2008) DLT 17 (DB) held similarly. They have also concluded that the Applicant has no locus standi to dictate as to how and where he has to be posted by the competent authorities. Further, it is the settled law that once an order of posting was passed by the competent authority and served upon the employee, he has to report and join at the new place of posting. In this regard he has relied upon a judgment of the Apex Court in S.C. Saxena Vs. Union of India and Another 2006 (L&S) 1890.
OA No.1941/20137. The case of the Applicant in OA No.1941/2013 is also similar. Initially, he was appointed as Assistant Commissioner of Income Tax in the year 1994. Thereafter, in the year 1988, he was promoted to the rank of Dy. Commissioner of Income Tax and then in the year 2006 to the rank of Joint Commissioner of Income Tax and finally to the rank of Additional Commissioner of Income Tax. He was posted in Delhi (CCA). Now he has been transferred from Delhi to North East Region (NER) vide order No.87 of 2013 dated 24.05.2013. Against the aforesaid order, he made a representation dated 28.05.2013 wherein he has also stated that he was posted in Delhi only in June 2008 and he has not completed 8 years in Delhi to qualify for his transfer. Further according to him, his transfer was ordered in violation of the transfer guidelines and by adopting the pick and choose policy.
8. The Respondents have filed an identical reply as in the earlier case.
9. I have heard the learned counsel for the Applicant as well as the learned counsel for the Respondents. No doubt, as submitted by the Respondents, transfer is an incident of service and the employee can be transferred and posted at any place and the scope of interference by the Tribunals/Courts is very limited. But any order including the order of transfer made in an arbitrary manner is violative of Article 14 of the Constitution. As pointed out by the Applicants in these OAs, the guidelines for transfer of the employees have been issued by the Respondent-Department in consultation with employees organization to ensure that arbitrariness in transfers and postings can be eliminated as far as possible. The administrative exigencies and public interest are the guiding principles for transfers. Such consideration shall also be, to the extent possible, in accordance with the guidelines. Though guidelines are not statutory in nature, it cannot be said that they are not required to be followed without assigning any reasons. In the present case, the Respondents in their reply have not given reasons for not following the guidelines for transfer made by them, in the case of the Applicants.
10. On the directions of this Tribunal, the Respondents have also made available the following two files:-
(i) A-22012/1/2013-Ad.VI
(ii) A-22013/4/2013-Ad.VI.
Both the files do not contain the deliberations regarding the transfers of the Applicants. However, they contain copies of the minutes of the Placement Committees. In a routine manner, all the minutes contain a recitation in the following manner:-
3. In deliberations, the Placement Committee adopted the following norms and criteria while deciding and recommending the transfer/postings:
a. the overall shortage of officers in different regions of the country b. the overall revenue potential of the region/station c. the requests of spouse grounds d. the requests on compassionate (medial/health) and education ground e. the tenures of particular officers in a region/station f. the administrative grounds and requirements and other exigencies
4. After due deliberations, keeping in mind the provisions of TPG-2010 and the above mentioned norms/criteria, the Placement Committee decided to make the recommendations in respect of the officers who had filed their online requests & paper representations, officers who reverted back to the department, those who have been transferred on administrative grounds/requirement as well as postings in the Directorates of CBDT, the recommendations of the Placement Committee for transfer/posting are at Annexure D. As regards the officers who were due for a review, the recommendations of the Placement Committee are enclosed at Annexure E. In fact there were no data or details regarding the shortage of officers, overall revenue potential, tenure of officers in the region/station etc. as provided in the transfer of placement guidelines before the Placement Committee. There is also no explanation as to the type of administrative grounds and requirements and other exigencies etc. based on which the Respondents have curtailed the minimum tenure of the posting of the Applicants in their present stations. From the record, I did not find any deliberations on the part of the Placement Committee regarding any exigency which necessitated them to recommend the transfer of the Applicants in violation of the guidelines. On the other hand, I do not find any kind of application of mind by the members of the Committee.
11. In view of the above position, I allow these OAs. The interim orders passed in both these cases are made absolute. Consequently, the impugned order Nos. 86 of 2013 and 87 of 2013 both dated 24.05.2013 to the extent they apply to the Applicants are quashed and set aside. Further, we direct the Respondents to follow their transfer/placement guidelines in the case of the Applicants also and allow them to complete ate least their minimum period of tenure at their present place of postings, unhindered. However, I make it clear that, if there are good and sufficient reasons, this order will not come in the way of the Respondents for the transfer and posting of the Applicants in future in terms of para 7 of the Transfer/Placement Guidelines for officers of the Indian Revenue Service Central Board of Direct Taxes 2010 which is as under:-
7.1 Notwithstanding anything contained in these Guidelines the Placement Committee may, if it considers necessary to do so in public interest and in furtherance of organizational objectives, transfer, retain, or post any officer to any station/Region or a specific post.
7.2 In between two Annual General Transfer exercises, on administrative exigencies, the Placement Committee may shift any officer from one place/post to another.
7.3 Notwithstanding anything contained in these Guidelines, the Placement Committee may transfer any officer in respect of whom the concerned Commissioner/Chief Commissioner or Director/Director General under whom the officer is working and the concerned zonal Member, have made recommendations in writing that the continuance of a particular officer at a particular place/station/region is not in the public interest.
12. There shall be no order as to costs.
(George Paracken) Member (J) Rakesh