Delhi High Court
S.K. Srivastava vs Union Of India And Ors. on 5 May, 1971
JUDGMENT V.S. Deshpande, J.
(1) The nature of the power of the Government to transfer a Government servant from one post to another and the limitations on the extent of such power and when a person so transferred can be said to be "removed or reduced in rank" within the meaning of Article 311(2) of the Constitution are some of the questions which arise for decision in this case.
(2) The petitioner joined the Imperial Customs Service on 7th September 1948. He was confirmed in the senior scale posts of Assistants Collector of Customs on 1st January 1956. On 12th August 1959 by an executive resolution of the Government of India, the Indian Customs Service Class I and the Central Excise Service Class I were integrated with effect from 15th August 1959 and the inter se seniority of the integrated service as validity determined as was held by one of us (Deshpande J.) in R. Pershad v. Union of India; (Civil Writ 358 of 1968 decided on 31-5-1958(1). In the seniority list of officers holding the posts of Collectors of Customs and/or Central Excise on 1st April 1959 (Annexure R-1 to the counter affidavit of the Government) the petitioner stood as No. 24. In the revised seniority list of all the officers included in the initial constitution of the Indian Customs and Central Excise Service Class I who were in position on 7th April 1970, the petitioner was shown as No. 16. On 30-8-1967 the President was pleased to order that the petitioner, an officer of the Indian Customs and Central Excise Service, Class I then posted as Collector of Central Excise, Allahabad "be transferred and posted as Director of Revenue Intelligence, New Delhi". The petitioner assumed charge of the post of Director of Revenue Intelligence on 19-9-1967.
(3) In April 1970 a telegram was received by the Director-General. Revenue Intelligence with a copy of the Chairman of the Central Board of Excise and Customs pointing out that the petitioner with his family was staying with a person who was previously a notorious smuggler having been convicted as such. It was also alleged therein that the petitioner has been showing favor to another well-known smuggler. When the petitioner was asked to give his version about this telegram, he admitted that he with his family stayed with the person who was formerly a smuggler and an ex-convict but defended his action by staling that the said person was no longer pursuing such illegal activities and on the other hand the petitioner obtained information from him about other smugglers. He also denied showing favor to the other well-known smuggler. The Government attached great importance to the need for the person occupying the sensitive office of the Director of Revenue Intelligence to so conduct himself as to set an example of upright behavior and rectitude. The Government carefully considered the explanation offered by the petitioner but felt that he had committed a grave impropriety in this particular matter. In the interest of maintaining decorum in administration and having regard to the sensitive nature of the duties performed by the Director of Revenue Intelligence, the Government decided to transfer the petitioner from the post of Director of Revenue Intelligence on 25th May 1970 with the concurrence of the Minister of State in the Ministry of Finance and of the Prime Minister who was in-charge of Ministry of Home Affairs at that time. The following three impugned orders were. therefore, issued:- (1)The President was pleased to order that the petitioner, Director of Revenue Intelligence, New Delhi, "be transferred with immediate effect and be posted as Collector of Customs, Calcutta". The petitioner however represented that he should not be sent to Calcutta. (2) Therefore, on 3-12-1970 the order dated 27-7-1970 was cancelled. (3) On 16-12-1970 the President was pleased to order that the petitioner "be posted as Collector of Central Excise, Hyderabad".
(4) The petitioner, however, refused to join his posting at Hyderabad and has filed the present writ petition challenging his transfer from the post of Director of Revenue Intelligence to the post of Collector of Customs as being illegal and unconstitutional.
(5) Let us first consider the legality of the transfer. Under Article 310 of the Constitution, the petitioner held office during the pleasure of the President. The conditions of service of the petitioner could be regulated by Parliament by legislation under Article 309 of the Constitution. In the absence of such legislation the President could also frame rules to do so under the proviso to Article 309. But neither any such legislation nor any such rules exist. The formation of the Indian Customs and Central Excise Service Class I was itself brought about by purely executive action. It is well-established that the administration of service by the Government of India can be carried on by executive instructions and executive action even though no statute or statutory rules may have been made.
(6) The distinction between the personnel forming a Service and the posts which may be manned by the members of such a Service has to he noted at the outset in this case. The petitioner along with others belong to the Indian Customs and Central Excise Service Class 1. The members of this Service stood in relation to each other in a particular order of seniority. There was no statute or rules, however, restricting the appointments of the members of the Service to any particular post. Initially the officers of the Collectorate of Customs and Excise working under the Ministry of Finance, Department of Revenue, used to do all the work relating to customs and excise. In 1939, the work of inspection in the Departments of Customs and Central Excise which was till then performed by the departments themselves as carved out and given to a separate Directorate of Inspection (Customs and Central Excise) as a part of the office of the Central Board of Revenue which was formed by an Act of 1924 and which was split later by an Act of 1963 into two Boards, namely :- (A)Board of Direct Taxes under which functions the Department of Income-tax; (b) The Central Board of Excise and Customs under which functioned the Collectorates of Customs and Central Excise, Directorate of Inspection and Directorate of Revenue Intelligence.
(7) It was in 1957 that the intelligence work till then performed by the Central Revenue Intelligence Bureau functioning as a unit in the Directorate of Inspection, was constituted as a third unit in the Department of Revenue, Ministry of Finance styled as Directorate of Revenue Intelligence. All this and more information is contained in the Government publication "Organization Set-up and Functions of the Ministries/Departments of the Government of India", 4th Edition, 1968, pages 68-70 (Annexure R XIII).
(8) As the work of Directorates of Inspection and Revenue Intelligence has been carved out from the work originally performed by the Collectorates of Customs and Central Excise and as no separate personnel was recruited to man the posts in these two Directorates, the members of the Indian Customs and Central Excise Service Class I have been manning those posts. There have been. therefore, numerous transfers of officers of the Indian Customs and Central Excise Service Class I from their posts in the Collectorates to the subsequently created posts in the Directorates. Equally frequently these officers have been transferred back to the posts in the Collectorates. The important fact to be noted is that only one set of personnel originally recruited for the Customs and Central Excise Collectorates has been used to fill the posts not only in the Collectorates but also in the Directorates. The reason is obvious. The Central Board of Excise and Customs in 1963 and prior to that the Central Board of Revenue functioning as a part of the Department of Revenue, Ministry of Finance of the Government of India administered and controlled the work of the Collectorates of Customs and Central Excise as well as of the Directorates of Inspection and Revenue Intelligence. These three units form one whole working under the Board and the Ministry. This position is reflected in the following documents:- (1)The Central Civil Services [Revised Pay Rules, 1960 (Annexure R xiv)] have a Schedule in which the various posts which could be manned by the Central Civil Services are shown with the emoluments attached to those posts. In this Schedule section 10 forms the Ministry of Finance (Department of Revenue). Sub-section 2 gives the posts in the Customs Department Sub-section 3 in the Central Excise Department; Sub-section 7 in the Directorate of Inspection (Customs and Central Excise); Sub-section 11 in the Directorate of Inspection (Investigation Wing) and Sub-section 12 in the Directorate of Revenue Intelligence. The posts in the Collectorates were directly under the Department of Revenue, Ministry of Finance. (2) The List of Officers of the Central Board of Revenue and Indian Revenue Service as on 1st October 1961 is a Government publication. This brings out the fact that the Government had at one time (in 1954) intended to merge not only the Customs and Central Excise but also the Income-tax and the other technical posts into one Service called Indian Revenue Service. This total marge was not achieved. In 1959 only the Customs and Central Excise were merged into one Service. The effect was that from 1959 onwards the Central Board of Revenue and the Indian Revenue Service functioning under the Ministry of Finance (Department of Revenue) consisted of three branches, namely:- A. Customs/Central Excise Branch (including Narcotics); B. Income Tax Branch; and C. Central Revenues Chemical Service, Class 1. (3) This position is confirmed by the Government publication "Organizational Set-up and Functions of the Ministries/Departments of the Government of India" 4th Edition, 1968, referred to above.
(9) The petitioner contends that the post of Director of Revenue Intelligence does not form part of the cadre of Customs and Central Excise Department and the petitioner could not, therefore, be transferred from the post of Director of Revenue Intelligence to the post of a Collector of Customs/Central Excise.
(10) The only relevance as to whether the post of Director of Revenue Intelligence is outside the cadre of the Indian Customs and Central Excise Service, Class I, is to know whether the said post was outside the range of transferability for an officer of the Indian Customs and Central Excise Service, Class I, and if so, whether the posting of the petitioner necessarily results in a permanent appointment of the petitioner to the said post. In the seniority list of the officers of the Indian Customs and Central Excise Service, Class I, as on 7th April 1970 (page 2 of Annexure R.I) the petitioner is still shown as a member of the Indian Customs and Central Excise Service, Class I. Further, the petitioner is not shown to be occupying an ex-cadre post on 7th April 1970. Nor is the officer occupying the post of Deputy Director, Revenue Intelligence, shown to be occupying an ex-cadre post. Similarly, none of the officers of the Indian Customs and Central Excise Service, Class I who are holding posts in the Directorates of Revenue Intelligence and Inspection are shown to be occupying ex-cadre posts. In addition to page 2 of Annexure R-1, the full seniority list containing the names of all the officers of the Indian Customs and Central Excise Service Class I has been filed by the respondents (Annexure R. VII). It shows that none of the posts in the Directorates of Revenue Intelligence and Inspection was regarded as an ex-cadre post vis-a-vis the appointments of the officers of Indian Customs and Central Excise Service, Class I, to those posts. This is to be contrasted with the fact that those officers who were holding ex-cadre posts of Joint Secretary or equivalent were specifically shown in this list of 7th April 1970 to be occupying ex-cadre posts by asterisks marked against their names. The conclusion is irresistible, therefore, that the posts in the Directorate of Revenue Intelligence and Inspection including the post of Director of Revenue Intelligence was not an ex-cadre post, in the sense that it as outside the ordinary range of transferability for an officer of the Indian Customs and Central Excise Service, Class I. The Department of Revenue consisting of the three branches of the Income-tax, Customs and Central Excise, and the Chemical Service, Class I, is itself a Service or a cadre functioning as one department. The post of Director of Revenue Intelligence belongs to one unit of this department. But since all the three units constitute one department the posts of one unit were not regarded as ex-cadre posts vis-a-vis the other units inasmuch as the. same set of officers were manning the posts in all the three units. This is brought out by the following evidence: (1)Annexure C which shows that officers below the Director and Deputy Director of Revenue Intelligence bore the same designations which they bore while serving the Customs and Central Excise unit of the Department of Revenue. (2) Annexure Ee to the writ petition. and (3) In the list of officers of the Indian Customs and Central Excise unit of the Department of Revenue as on 7th April 1970, it is not even thought necessary to show the posts held by the members of the Service in the Directorates of Revenue Intelligence and Inspection obviously because all these three units were a part of one department.
(11) This conclusion is reinforced by the following reasons. The word "cadre" is defined in Fundamental Rule 9(4) to mean the "strength of a service or a part of a service sanctioned as a separate unit." The Indian Customs and Central Excise Service Class I may mean a "cadre" so defined. But it indicated only the strength of the service in the sense that there were so many officers forming the said service. But it is not shown that there was any law or rule by which the officers of this service were restricted to manning only the posts in the Collectorates of Customs and Central Excise. This is why they were freely transferred to occupy the posts in the Directorates of Inspection and Revenue Intelligence particularly because no separate service was formed and no separate recruitment was made to fill the posts in these two Directorates. In Debesh Chandra Das v. Union of India and others. , it as shown that the Indian Administrative Service as divided into various State cadre but they were meant to man numerous posts in the Central Government though they were outside heir cadre. Just as the Central Government depended on the officers of the different state cadre of the Indian Administrative Service for filling the posts in the Central Government, similarly the Ministry of Finance, Department of Revenue, depended on the officers of the Indian Customs and Central Excise Service Class I as also the subordinate officers of the Customs and Central Excise to man the posts in the Directorates of Inspection and Revenue Intelligence.
(12) Even the Directorate of Revenue Intelligence was created only by executive action and not by any statue or statutory rules. This was why orders of 1957 could be modified by the orders of 1960 and 1965 administratively. Just as there were no rules governing the appointments to the posts in the Collectorates of Customs and Central Excise, there were no rules governing the appointments in the Directorate of Revenue Intelligence. This was why the transfers from the Collectorates to the Directorate and vice versa were freely made without any question of acquisition of lien by any officer on any post in the Directorate, arising (13) Apart from the general administrative power of the Central Government to transfer a member of the Indian Customs and Central Excise Service Class I to a post in the Directorate of Revenue Intelligence, Fundamental Rule 15 specifically gives the power of transfer to the Government in the following words :- "15.(a) Governor General in Council may transfer a Government servant from one post to another; provided that, except- (1) on account of inefficiency or misbehavior. or (2) on his written request, a Government servant shall not be transferred substantively to, or, except in a case covered by rule 49, appointed to officiate in, a post carrying less pay than the pay of the permanent post on which he holds a lien, or would hold a lien had his lien not been suspended under Rule 14. (b) Nothing contained in clause (a) of this Rule or in clause (13) of Rule 9 shall operate to prevent the retransfer of a Government servant to the post on which he would hold a lien, had it not been suspended in accordance with the provisions of clause (a) of Rule 14."
(14) Fundamental Rule 15 is divisible into two parts, namely :- (1)the general rule giving the Government full power to transfer a Government servant from one post to another; and (2) the exception to the rule providing that a Government servant shall not be transferred substantively to, or, appointed to officiate in, a post carrying less pay than the pay of the permanent post on which he holds a lien.
(15) Let us first see whether the transfer of the petitioner from the post of Director of Revenue Intelligence to the post of Collector of Customs is covered by the general rule authorising such a transfer by the Government. The language of the rule is very wide indicating that the Government may transfer a Government servant from any one post to any other post. It is well-known principle of statutory construction, however, that wide words have to be 'construed in the context in which they arc used and their width may be limited by the context. As Justice Samuel Miller of the U.S. Supreme Court once said "all loose construction of authority is dangerous; all construction of authority too limited to serve the purpose for which it is given is injurious." We have, therefore, to construe the authority of the Government to transfer a Government servant neither too widely as to do injustice to the Government servant concerned nor too narrowly as to better the administration of the Government, but precisely to meet the object and the work for which the petitioner was appointed and the extent to which he was transferable for the achievement of the said object and in the course of the said work.
(16) The extent of the power to transfer would, therefore, depend on the nature of the conditions of service of the Government servant concerned. For instance, if a person is specifically recruited, say through Public Service Commission, for one particular post with the implication that he is not being recruited to any service but is being appointed to only one post, then the range of his transferability would be restricted. In Dr. Prem Beharilal Saksena v. Director of Medical and Health Services, Lucknow, , the petitioner was recruited through the Public Service Commission specifically for the post of an Anaesthetist in a State hospital in the district of Kanpur. He was confirmed as an Anaesthetist in the Ursla Horsman Memorial Hospital, Kanpur. His representation that he should be made a member of some Health service was turned down. In these circumstances it was held that he could not be transferred to the post of an (17) Anaesthetist to another hospital at Varanasi. But in the present case. the petitioner has been recruited to the Customs and Central Excise Service. He is a member of the Indian Customs and Central Excise Service. Class 1. The Collectorates of Customs and Central Excise formed one of the three branches of the Indian Revenue Service or the Department of Revenue, Ministry of Finance. The other two branches, namely, Directorates of Inspection and Revenue Intelligence, have been carved out of the Collectorates of Customs and Central Excise and have been actually manned by the personnel of the Customs and Central Excise Collectorates as there is no separate service formed to man the posts in these Directorates.
(18) The petitioner himself 'was transferred from the Collectorate of Customs to the Directorate of Revenue Intelligence as a Deputy Director (Investigation) in the Directorate of Revenue Intelligence from 17th January 1959, He was transferred back to the Collectorate of Customs as Additional Collector of Customs, Calcutta on 4th April 1960. While he was Collector of Central Excise, Allahabad, he was again transferred to the Directorate of Revenue Intelligence as Director of Revenue Intelligence on 30th August 1967 and was transferred back to the Collectorate of Customs by the impugned order dated 27-7-1970. The transfer from the Collectorates to the Directorate of Revenue Intelligence and back have taken place not only in the case of the petitioner but also in the case of numerous other officers of the Co Electorates of Customs and Central Excise in a regular and systematic manner for all these years since the creation of the Directorate of Revenue Intelligence in 1957. The post of Director of Revenue Intelligence was, therefore, not outside the range of transferability within the meaning of the general rule laid down by Fundamental Rule 15. The transfer of the petitioner by the impugned order, dated 27-7-1970 was thus apparently legal under this general rule.
(19) While Article 311(2) ordinarily deals with removal from service just as it deals with dismissal from service, a subtle distinction between removal and dismissal is conceivable. The dismissal of a person always terminates his services. The removal of a person also generally terminates his services. But one can conceive of a rare case in which a person occupies a single post to which he is recruited and in which he has been confirmed as such. If such a person is transferred to a totally different post which has nothing to do with the post for which he was recruited and in which he has been confirmed, then such a transfer will not only be outside the scope of the power of transfer given to the Government by Fundamental Rule 15 but it is also arguable that it may constitute a removal of such a person from that post held by him. In such a case though the services of a person may not come to an end, the person may complain of removal from a post as distinguished from removal from service. If the person had a right to hold the post from which he was transferred and the transfer was illegal, he may be entitled to the protection of Article 311(2) on the ground that he was removed contrary to Article 311(2). In the present case, however, the transfer of the petitioner was within the range of transferability and therefore the petitioner cannot be said to have been removed from the post of the Director of Revenue Intelligence. The plea that he was so removed is also negatived by other reasons such as that he did not have any lien on the post of Director of Revenue Intelligence etc., which would be considered later while dealing with the question whether the petitioner was reduced in rank by the impugned orders of transfer.
(20) It is not the case of the petitioner that he was substantively transferred to the post of a Collector of Customs on 27-7-1970. It is well-known that very few officers of the Indian Customs and Central Excise Service, Class I, have been confirmed as Collectors- Many officers senior to the petitioner have yet to be confirmed. The petitioner could not, therefore, be substantively transferred to the post of a Collector of Customs. He was, therefore, obviously transferred to officiate in the post of a Collector of Customs. The order, of course, does not state whether the transfer was a substantive one or an officiating one. But the nature of the transfer has been proved to be an officiating one from the above circumstances of the case. Can it be said that the petitioner was transferred to a post carrying less pay than the pay of the permanent post on which he holds a lien within the meaning of the exception to the general rule laid down in Fundamental Rule 15 ? Firstly, the petitioner has been confirmed only as an Assistant Collector and he has, therefore, a lien on the post of an Assistant Collector within the meaning of Fundamental Rule 9(13). To come within the exception, the petitioner has to prove two things, namely :- (1)that he held a lien on the permanent post of the Director of Revenue Intelligence, and (2) that the post of Collector of Customs carried less pay than the post of Director of Revenue Intelligence.
(21) These two requirements are also to be proved if the petitioner wants to show that he was reduced in rank by the impugned orders of transfer. The word "rank" as used in Article 311(2) of the Constitution has not been defined. But it is well-established that the words "dismissal, removal and reduction in rank" have a technical significance due to the special meanings attached to them historically from the very beginning. The meaning so attached to the word "rank" is that it is a class or a grade of service. The classes or the grades relevant for this purpose are those which are arranged in an ascending or a descending order, that is to say; they must be one above the other Or one below the other. This is why the Central Civil Services (Classification, Control and Appeal) Rules, 1965 classified all the Central Civil Services and the Central Civil posts into four classes one below the other as Class I, Class Ii, Class Iii and Class Iv vide rules 4 to 6. The word "rank" has, therefore, a strictly service law significance. One rank is distinguished from another only by the classification of services or of posts within which they respectively fall. The post of Director of Revenue Intelligence is of the same class and of the same grade as the post of the Collector of Customs as was expressly decided by the President in the memorandum dated 29th April 1960 at Annexure E of the writ petition which stated that "in partial modification of the orders conveyed in para 2 of this Ministry's letter No. l(51)/57-Ad. Iv, dated 4th December, 1957, the President has been pleased to decide that the post of Director of Revenue Intelligence should carry the prescribed scale of pay of Collector of Central Excise/Customs (22) Grade I, viz., Rs. 1800-100-2000, plus a special pay of Rs. 250.00 p.m. with effect from 31st December, 1959 and until further orders."
THIS was further confirmed by the memorandum dated 20th July 1965 at Annexure Ee of the writ petition slating that "in supersession of all the existing orders on the above subject, the President has been pleased to decide that the scales of pay of the following posts shall with effect from 1st June 1965 be as given below:-
Designation of post Scale 1. Director of Inspection, Customs & Central Excise. 2. Director of Revenue Intelligence, Rs. 1800-100-2000- 125-2250. 3. Collector of Customs and Central Excise, 4. Narcotics Commissioner. 5. Additional Collectors of Customs and Central Excise. 6. Appellate Collectors of Central Excise and Customs. 7. Deputy Director of Inspection, Customs & Central Rs. 1100-50-1300- 8. Deputy Director of Revenue Intelligence. 60-1600. 9. Officer on Special Duty, Bombay Central Excise Collectorate. 10.Duty Collectors of Central Excise & Customs (including the Deputy Narcotics Commissioner and D.C.S. & I. Branch.) The Special Pay of Rs. 250.00 p.m. now attached to posts of Director of Inspection (Customs and Central Excise), Director of Revenue Intelligence, Collectors of Customs, Calcutta and Bombay and two posts of Collectors of Central Excise, Bombay and Delhi will be reduced to Rs. 200.00 p.m. from 1st June 1965."
(23) The concept of "rank" being solely significant for the purposes of administration of services and the law relating to it, the Government has always applied the criterion of pay to distinguish one class or grade of service or post from another. In fixing the pay of a particular post or the scale of pay of a particular service, the Government considers the status and responsibility attached to a particular post or class of service. For instance, Rule 9 of the Indian Police Service Rules, 1954, specifically states that the Government declares one post as being equivalent to another and ensures that the pay which a member of the service would get in each post would be the same. The pay itself is determined by the Government after taking into account the nature of the duties involved in the post. As the Government would have already taken into account the nature of duties, responsibilities and the status of different posts before classifying them and would have indicated the classification by the fixation of different salaries or pay scales, the Courts should be well advised in regarding the pay or the scale of pay of a post as the principal criterion to determine the rank of the post. Further, the Courts are not in the same position as the Government is in determining the nature of duties, responsibilities and status of a particular post and in comparing those with the nature, of duties, responsibilities and status of another post. It would not be advisable, therefore, for the Courts to ignore the classification made by the Government as indicated by the emoluments fixed by the Government and try to determine afresh the rank of a particular post by having regard to considerations other than the pay specially because these considerations have already been taken into account by the Government in fixing the pay or the pay-scale of a particular post. In K. Gopaul v. Union of India and others (1947) 3 S.C.R. 627. the petitioner was transferred from the post of Inspector General of Registration to the post of Accommodation Controller. In the former post, he was the head of a department while in the latter post he was not so. It was urged by him that he was, therefore, reduced in rank. The Supreme Court, however, rejected this contention with the following observation at page 632 :- "THE rank in Government service does not depend on the mere circumstance that the Government servant, in the discharge of his duties, is given certain powers."
(24) In the High Court, Calcutta v. Amal Kumar Roy, , the loss of seniority by some places in the same grade of service was not regarded as reduction in rank. In State of Punjab v.
(25) Shri Kishan Das, , Shelat, J., carefully reviewed the existing case-law on the meaning of "reduction in rank" and concluded that the expression "reduction in rank" in Article 311(2) has to be construed according to the well-established meaning it has acquired under the various service rules and the provisions in that regard. Since rule 16.1 of the Punjab Police Rules made a clear distinction between reduction in rank and the stoppage of increment or forfeiture of approved service for increment, the latter could not be treated to be "reduction in rank" which could only mean reduction from a higher to a lower rank. As stated above, the Central Civil Service, Class I, is a class or grade of service in which both the posts of Director of Revenue Intelligence and Collector of Customs/Central Excise are comprised. Both the posts are therefore, of the same rank.
(26) The learned counsel for the petitioner argued that the post of Director of Revenue Intelligence was higher in rank than the post of a Collector of Customs/Central Excise for the following reasons. namely:- (1)When the Directorate of Revenue Intelligence was first created by the memorandum dated 4th December 1957 (Annexure A to the writ petition) the pay of the Director of Revenue Intelligence for the new entrants (but not of a departmental appointee like the petitioner) was Rs. 2,250.00 which was higher than the then pay-scale of Collector of Customs and Central Excise. But this fact has only a historical significance. For, the Government modified this decision on 29th April, 1960 by reducing the pay-scale of the Director of Revenue Intelligence and equating it with the pay-scale of Collector of Customs/Central Excise, Grade I. The Government further re-affirmed the equation of the two posts on 20th July 1965 as per annexure EE. (2) The Directorate of Revenue Intelligence was an excluded of Customs and Central Excise which were subordinate office of the Central Board of Customs and Excise. The issue of directions was only in regard to the work of revenue intelligence which was already taken out from the work of the Collectorates and in respect of which only co-ordination and implementation of policies were required from the Collectorates. The advice of an expert may have to be followed by another office but this does not necessarily mean that the expert occupies a rank higher than the rank of an officer who is required to follow the advice of the expert even if both the expert and the officer enjoyed the same pay-scale or pay. (3) The Directorate of Revenue Intelligence has territorial jurisdiction all over India while each of the Collectorates is restricted to the area of a state or some such lesser area, Here again, the jurisdiction of the Collectors over a lesser area extends to larger amount of work while the jurisdiction of the Directorate of Revenue Intelligence) though extending all over India, is restricted only to one specialised kind of work, namely Revenue Intelligence. (4) None of the officers who had preceded the petitioner in the post of Director of Revenue Intelligence came back as a Collector of Customs or Central Excise. He either retired or was promoted as a Member of the Central Board of Excise and Customs. The first occupant was Shri Burman who retired as Director of Revenue Intelligence. The second occupant was Mr. T. C. Seth who was promoted. The third occupant was Shri Jagjit Singh who was also promoted. The fourth occupant was Shri Koruthu who retired. But the fifth occupant was Shri Ramachandran who was only a Deputy Director of Revenue Intelligence and was promoted in a leave vacancy but was reverted back as Deputy Director of Revenue Intelligence after Shri Koruthu returned from leave. The last incumbent was the petitioner. It is true that generally the incumbent of the post of the Director of Revenue Intelligence were from amongst the senior officers of the Collectorates. The work of the Director of Revenue Intelligence is a specialised one. Therefore, a person who is once appointed to that work becomes specialized and this may be one of the reasons why he is not transferred back to the Collectorates to do the general work. At the same time when his turn for his promotion comes, he is promoted to the Board. This does not mean that there was any legal bar to the incumbent of the post of the Director of Revenue Intelligence from being transferred back to the post of a Collector of Customs/Central Excise.
(27) In our view such intangible considerations as urged by the learned counsel for the petitioner cannot prevail against the most tangible consideration, namely, the classification of both the posts of Director of Revenue Intelligence and the Collector of Customs/Central Excise as Central Civil service Class I carrying the same scale of pay and expressly equated by the Government with each other long before the petitioner was appointed to the post of Director of Revenue Intelligence. We. therefore, find that these posts are of the same rank.
(28) Let us now inquire whether the petitioner acquired a lien on the post of the Director of Revenue Intelligence when he was transferred to that post in 1967. Learned counsel for the petitioner argued that the post of the Director of Revenue Intelligence was a permanent post. The orders transferring the petitioner to that post did not indicate that his appointment to that post was an officiating one. Learned counsel, therefore, argued that the transfer must be regarded as a substantive appointment to a permanent post with the result that the petitioner acquired a lien on the post of the Director of Revenue Intelligence. Learned counsel relied on the decision of this Court given by one of us (Deshpande J.) in Shri Jiwan Doss v. Municipal Corporation of Delhi, 1971 Services Law Reporter 277 for this proposition. In that case, the question was whether a probationer substantively appointed to a permanent post could acquire a lien on that post. A distinction was made between a permanent appointment and an appointment on probation. Both these appointment may be made substantively to a permanent post, but the permanent appointee gets title to the post within the meaning of Fundamental Rule 9(13). The probationer does not get a title to hold the post. In the present case, no such distinction is involved. The question whether the appointment to a post is permanent, officiating or temporary would, of course, be primarily decided in accordance with the terms contained in the order of appointment. When the order of appointment is however silent as to the nature of the tenure of the appointee then the tenure has to be decided in the light of the other evidence available on the record. The evidence in the present case is as follows :- (1)The petitioner and officers senior to him in the Customs and Central Excise Service, Class I, were only officiating in the posts of Collector of Customs and Central Excise. They were only confirmed as Assistant Collectors of Customs and Central Excise. If the Government had intended that the petitioner should supersede the other unconfirmed Collectors senior to him and the petitioner should be permanently appointed as the Director of Revenue Intelligence, then the appointment of the petitioner would have been in the nature of supersession of his senior colleagues. The original file of the Ministry of Finance (Department of Revenue) in which the question of transferring the petitioner to the post of Director of Revenue Intelligence was considered has been produced by the Government for our perusal as desired by the petitioner. We find that Shri D. P. Anand, Chairman of the Central Board of Excise and Customs, had suggested on 20-5-1967 two alternatives in shifting the petitioner from his post of Collector of Central Excise, Allahabad and in putting him on investigation and detection work again. One alternative was to create a post in the grade of Collector of Customs (Special) at Calcutta. The other alternative was to post the petitioner as Director of Revenue Intelligence to Delhi. Shri Anand expressly stated that "the post of D.R.I, carries the pay of a Collector of Customs and Central Excise, plus a special pay of Rs. 200.00." In this way, he contrasted the post of the Director of Revenue Intelligence with the ordinary posts of the Collectors of Customs and Central Excise such as the post occupied by the petitioner at Allahabad. He did not think it necessary to mention that the four posts of Collectors of Customs and Central Excise carry the same scales of pay as the post of the Director of Revenue Intelligence. It is clear from the note of Shri Anand that he did not make any difference between the transfer of the petitioner as the Collector of Customs (Special) at Calcutta or as the Director of Revenue Intelligence in respect of the rank of the posts. Just as the transfer of the petitioner as the Collector of Customs (Special) would not have created any lien in favor of the petitioner on the post of the Collector of Customs (Special) similarly his transfer to the post of Director of Revenue Intelligence was not intended to give him a lien on that post. (2) According to Fundamental Rule 12(b) a Government servant cannot be appointed substantively to two or more permanent posts at the same time. Shri T. C. Seth is shown as a confirmed Collector of Central Excise. In the order dated 5th January 1960 (Annexure R VIII) it is stated that Shri T. C. Seth a permanent Collector of Central Excise, Grade I, lately posted at Bombay, assumed charge as the Director of Revenue Intelligence, New Delhi, on 31st December 1959. The order transferring Shri Seth like the order transferring the petitioner is also silent whether the appointment for that post was officiating or permanent. But if the transfer of Shri T. C. Seth as Director of Revenue Intelligence was intended to be permanent, then Shri T. C. Seth would have acquired lien on the post of Director of Revenue Intelligence and would have lost his lien on the post of the Collector. But the order dated 5th January 1960 describes Shri Seth as u permanent Collector indicating thereby that he continued to be a permanent Collector and did not become a permanent Director of Revenue Intelligence. This shows that a transfer order phrased like the transfer order of the petitioner did not result in Shri Seth acquiring a lien on the post of the Director of Revenue Intelligence. (3) By order dated 12th March 1965 (Annexure R IX) the President was pleased to order that Shri Jasjit Singh. Collector of Customs and Central Excise. Grade I, be transferred and posted as Director of Revenue Intelligence. Shri Jasjit Singh was not stated to be a permanent Collector. If his appointment is regarded as a permanent appointment as the Director of Revenue Intelligence then he acquired a lien on that post. It is not shown that he was confirmed in any other post later. He was in service after 27-7-1970 when the petitioner was transferred from the post of Director of Revenue Intelligence and is said to be still in service. He could, therefore, hold a lien on the post of Director of Revenue Intelligence. According to Fundamental Rule 12(a) two or more Government servants cannot be appointed substantively to the same permanent post at the same time. If Shri Jasjit Singh held a lien on the post of the Director of Revenue Intelligence from before 1967 and beyond 27-7-1970, then the petitioner could not (while acting as Director of Revenue Intelligence) acquire a lien on the same post as Shri Jasjit Singh continued to hold a lien on that post. (4)Alternatively, if Shri Jasjit Singh was not intended to be appointed to the post of Director of Revenue Intelligence permanently then everyone who was appointed to that post in the same terms must also be considered not to be appointed to that post permanently. The orders of all the appointees Shri Burman, Shri Seth, Shri Jasjit Singh. Shri Koruthu, Shri Ramachandran and the petitioner-are worded in the same language. None of them is stated to be appointed either permanently or in officiating capacity. We know that Shri Seth could not be appointed permanently and Shri Ramachandran was appointed only in a leave vacancy and yet all the orders are couched in the same language. The conclusion is, therefore, irresistible that none of these persons was intend to be appointed permanently to the post of Director of Revenue Intelligence. The reason is that all these persons had their relative seniority in the Indian Customs and Central Excise Service, Class I, and it could never be the intention of the Government that any of them should become confirmed in the post of Director of Revenue Intelligence by superseding his senior colleagues merely because of his appointment to the post of Director of Revenue Intelligence. [See G. R. Baqual vs. State of Jammu and Kashmir ]. (5) The petitioner in his writ petition alleged that he verily believed that his appointment to the post of Director of Revenue Intelligence was approved by the Appointment Sub Committee of the Cabinet. The Government have refuted this claim in their counter-affidavit. The file of the appointment of the petitioner is seen by us and it is clear from a perusal of the file that the question of obtaining the sanction of the Sub Committee of the Cabinet never arose as the appointment of the petitioner was not regarded as a promotion or a substantive appointment in supersession of his colleagues. (6) Lastly, if the petitioner had really acquired a lien on the post of the Director of Revenue Intelligence which was a post outside the cadre of Indian Customs and Central Excise Service, Class 1. then the name of the petitioner would have been removed from the list of officers constituting the Indian Customs and Central Excise Service. Class I. But we find that the name of the petitioner is still shown in the said list as it was on the 7th of April 1970 in Annexure R-J (page 2) attached to the counter-affidavit of the Government. In the same way. the names of Shri Jasjit Singh and Shri Ramachandran who had also held the post of the Director of Revenue Intelligence are also shown in the list of the officers of the Indian Customs and Central Excise Service, Class I, who were in position on 7th April 1970, This shown that none of these officers went out of the Service simply because none of them acquired a lien on the post of the Director of Revenue Intelligence. As the petitioner had not acquired a lien on the post of the Director of Revenue Intelligence and as his transfer to the said post only in an officiating capacity, it follows that the petitioner did not have a right to hold the said post. His transfer from the said post to the post of a Collector of Customs may be viewed from the two angles. Firstly. it may be viewed as a reversion from a higher officiating post to a lower officiating post. Such a reversion, if in the course of routine administration. is not a reduction in rank. The petitioner, however, says that the reversion was by way of punishment. For, the Government arrived at the conclusion that the petitioner was guilty of a grave impropriety and, therefore, transferred him. The petitioner relies upon the recent Supreme Court decision in K. H. Phadnia v. State of Maharashtra (Civil Appeal No. 331 of 1967 decided on and the decision in P. C. Wadhwa v. Union of India. for this proposition. But these decisions have no application to the present case. The intention in those cases was to punish the Government servant concerned. In the present case, there was no intention to punish the petitioner. It was because the Government could not keep the petitioner in the post of Director of Revenue Intelligence after the allegation made against him in the telegram in April 1970 that the Government had to transfer him to keep up the public image of the Government and that of the Director of Revenue Intelligence. The petitioner himself realized this and his discussions with the Chairman of the Board were confined only to the question whether the petitioner should be transferred and if so to which post. There was never any question about punishing the petitioner.
(29) The rule is that the Government has the power to transfer a Government servant within the range of transferability even if such a transfer results in loss of some advantages to the Government servant concerned. It is only by way of an exception to this rule that it can be shown that the order was by way of a camouflage with the real intention to punish the Government servant. The petitioner has to show in such a case that the Government has committed fraud on the power which it undoubtedly possesses. It would be a rare case when the petitioner succeeds in proving such a fraud on the power. Moreover, the transfer of the petitioner was not only not a reduction in rank but it was not even an act involving civil consequences against the petitioner. For, it was in the routine course of administration. The petitioner had no right not to be transferred and, therefore, he could not even insist that he should be given a hearing before he is transferred. In Union of India v. Col. J. N. Sinha, , the Supreme Court held that the petitioner who did not have a right to continue in service beyond the age of 55 could not insist that he should be heard before the Government retired him by three months' notice. The same reasoning would apply in this case and the petitioner, therefore, could not insist that he should have been heard before he was transferred though, in fact, he was heard by the Chairman of the Central Board of Excise and Customs inasmuch as the Chairman ascertained from the petitioner what he had to say about the allegations made against him in the telegram received by the Government in April 1970.
(30) Secondly, the transfer has to be viewed from one post to another post of the same rank. For, we have already given reasons above to show that the post of Director of Revenue Intelligence was of the same rank as the post of a Collector of Customs. Learned counsel for the petitioner says that even if the post of Collector of Customs at Calcutta was of the same rank as the post of Director of Revenue Intelligence as both carried a special pay of Rs. 200.00, the Collector of Central Excise, Hyderabad, was lower in rank as it did not carry special pay of Rs, 200.00. Firstly, the equation of the posts of all Collectors with the post of Director of Revenue Intelligence shows that the post of Collector of Central Excise, Hyderabad, was also of the same rank as the post of the Director of Revenue Intelligence. The special pay was attached to a particular post and not to the person occupying the post. This was why persons holding the posts of Collectors to which special pay was attached were not regarded as occupying higher rank than the Collectors occupying posts which did not have a special pay attached to them. Moreover the order transferring the petitioner to Calcutta had to be cancelled on the express written representation made. by the petitioner and also perhaps some stay order had been issued against it in another case. The Government, therefore, had to cancel his posting to Calcutta. The Government was. however, unable to post him as a Collector to a post carrying a special pay of Rs. 200.00 because these posts were occupied by officers senior to the petitioner. They were general posts in respect of which the petitioner could not claim any qualifications better than were possessed by the incumbents of those posts. The petitioner had been posted as Director of Revenue Intelligence because he had a special flair for that kind of work. That argument was not applicable to the posting of the petitioner as a Collector carrying a special pay. The Government had. therefore, no option but to post him to the post of a Collector without special pay. But the orders of the Government are conclusive that the post of a Collector even without a special pay is equivalent to the post of the Director of Revenue Intelligence. The transfer of the petitioner did not, therefore, involve any reduction in rank.
(31) Subsidiary point raised by the petitioner was that on 27-7-1970 the Directorate of Revenue Intelligence was functioning under the Ministry of Home Affairs while the impugned order dated 27-7-1970 was made in the name of the President by an Under Secretary in the Ministry of Finance. But the Government have sworn an affidavit in which it is stated that the orders of the transfer of the petitioner issued on 27-7-1970 were issued after the approval not only of the Minister of Finance but also of the Prime Minister who was in-charge of the Ministry of Home Affairs was obtained. We have also verified this fact from the original Government file produced before us at the instance of the petitioner. This point was not, therefore, pressed by the learned counsel for the petitioner. Similarly, the learned counsel for the petitioner made it clear that the petitioner had full faith in Shri D. P. Anand, Chairman of the Central Board of Excise and Customs. As the transfer of the petitioner was dealt with by Shri Anand himself and as the counter-affidavit has also been sworn by Shri Anand himself the learned counsel for the petitioner did not press the allegation that the transfer of the petitioner was made in bad faith. We ourselves are fully satisfied that the Government acted in good and without any improper motive in transferring the petitioner in view of the admission by the petitioner of some of the allegations contained in the telegram received by the Government in April 1970.
(32) The transfer of the petitioner as Collector of Central Excise, Hyderabad, was made only because of his desire not to be posted as Collector of Customs, Calcutta even though the latter post carried the special pay of Rs. 200.00 per month. The petitioner is, therefore, in. the zone of consideration for appointment to higher posts in the same way as he would have been if he had continued as the Director of Revenue Intelligence or as Collector of Customs, Calcutta-particularly because his record of service is said to have been very meritorious.
(33) We, therefore, dismiss the writ petition. But in the circumstances, we make no order as to costs.