Central Administrative Tribunal - Delhi
Shri Anil Kumar vs Union Of India Through The Secretary on 25 June, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 2125/2013 This is the 25th June, 2013 Honble Mr. Sudhir Kumar, Member (A) Shri Anil Kumar, IRS CIT-DIT (Income Tax Settlement Commission) Residing at: A-11, 2nd Floor, Income Tax Colony, Peddar Road, Mumbai-400 0026. -Applicant. (By Advocates: Shri R.R.Shetty with Shri Nilansh Gaur) Versus 1. Union of India through the Secretary, Dept. of Revenue, Ministry of Finance, North Block, New Delhi-110 001. 2. Union of India through the Secretary, Ministry of Personnel, Public Grievances and Pensions, Dept. of Personnel and Training, North Block, New Delhi-110 011. 3. The Chairman, Central Board of Direct Taxes, North Block, New Delhi. 4. The Chief Commissioner of Income Tax, Aayakar Bhavan, Mumbai-400 020. Respondents. ORDER (ORAL)
Heard the learned counsel for the applicant on the point of admittance of the case for the purpose of issuance of notice and also on the point of interim relief.
2. It is seen that the applicant is posted at Mumbai. When a question was asked regarding the territorial jurisdiction of the Principal Bench of this Tribunal to hear the case, instead of Mumbai Bench, the learned counsel has produced a copy of Honble Delhi High Courts judgment dated 23.07.2003 in CW No.517/2003 in the matter of Dr.K.P.Verma vs. Union of India & Others, in which the High Court had held that even if the order of transfer had been communicated to the applicant within the State of Maharashtra, since the order was issued from Delhi, a part of cause of action did arise in Delhi. He has also relied upon the Honble Apex Courts judgment in State of Rajasthan & Others vs. M/s Swaika Properties and Another (AIR 1985 SC 1289) to submit that the Tribunals/Courts at the place from where an original order is issued have full jurisdiction to entertain the matter.
3. The territorial jurisdiction of various Benches of this Tribunal is not congruent with the jurisdiction of the Honble High Court at the same place, since the High Courts have much vast Constitutional powers. However, the learned counsel relies upon a Division Bench judgment of the Bangalore Bench of this Tribunal in K.Balaji vs. Intregal Coach Factory, Chennai : 2002 (3) ATJ 438 which was in the context of an applicant to a particular Government post, and not in the case of a person who was already a Government employee. Therefore, the Bangalore Bench/judgment in the case of K. Balaji is not applicable in the present case. However, in view of the order of the Honble Delhi High Court in Dr.K.P.Verma (supra), the question of jurisdiction is laid to rest.
4. The applicant, and his wife, both are employees of the respondent-department. From Annexure A-6, at pages 63-64, and Annexure A-1 at page 25 of the Paper Book, it is seen that the spouse of the applicant is already posted in Chennai and that by the same impugned order, she has been shifted from CIT (A)-12 to CIT-10 at Chennai itself.
5. The learned counsel for the applicant has relied upon the transfer/placement guidelines for officers of the Indian Revenue Service CBDT-2010 issued by the Central Board of Direct Taxes on 16.02.2010, under which he claims to being posted in an exempted post, the tenure where does not count towards computation of his tenure at Mumbai, through Annexure A-4 pages 53 to 57 of the OA, and has pleaded that as a result the applicants case is not yet ripe for transfer, as he has not yet completed the full tenure of 14 years at Mumbai, after including his present exempt posts tenure. However, it is seen from page 54 of the OA that the applicant was posted at Mumbai for his very first postings from 14.06.1988 to 02.06.1998 and after completing his postings at Baroda and Ahmedabad/Gandhinagar, he returned to Mumbai on 24.06.2005. He has been serving at Mumbai continuously since then. In fact, in his entire career, he has been given postings only in Mumbai and Ahmedabad Regions, and nowhere else.
6. The applicant has also annexed copies of O.M. dated 03.04.1986 at pages 116 A to D and O.M. dated 12.06.1997 at pages 116 E to H relating to Government of India Guidelines regarding the posting of husband and wife at the same station. On this, the learned counsel for the applicant submits that even though the wife of the applicant has been substantively posted to Chennai, by virtue of the operation of interim stay, which she had obtained from the Mumbai Bench of this Tribunal, she had continued to be posted at Mumbai, instead of joining her substantive posting at Chennai.
7. The learned counsel has also submitted that in the judgment delivered on 12.02.2013 by a Coordinate Bench of this Tribunal in OA 289/2013 Shri R.K.Sharma vs. Union of India & Another, the transfer policy which the applicant relies upon has been held to be sacrosanct, and it has been held that it cannot be violated.
8. However, in Shilpi Bose vs. State of Bihar & Others: AIR 1991 SC 532: 1991 Supp (2) SCC 659, the Honble Apex Court had observed as follows:-
4. In our opinion, the Courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the Competent Authority do not violate any of is legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department.
9. In Union of India vs. S.L. Abbas, (1993) 4 SCC 357, para-7, the Supreme Court observed that:
7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration..
10. A similar view has been taken by the Supreme Court in National Hydroelectric Power Corpn. Limited vs. Shri Bhagwan, 2002 (1) SLJ 86= 2001(8) SCC 574, wherein at para 5 at page 577 it was held that:
5.no Government servant or employee of Public Undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the Tribunals cannot interfere with such orders as a matter of routine, as though they are the Appellate Authorities substituting their own decision for that of the Management, as against such orders passed in the interest of administrative exigencies of the service concerned
11. A three Judges Bench of the Supreme Court in Major General J.K. Bansal vs. Union of India and others, (2005) 7 SCC 227 has also adopted the aforesaid view.
12. In State of M.P. and Another vs. S.S. Kourav and Others, 1995(2) SLJ 109 [SC]= (1995) 3 SCC 270, the Supreme Court observed that:
5.The High Court while exercising jurisdiction under Articles 226 and 227 of the Constitution of India had gone into the question as to whether the transfer was in the interest of public service. That would essentially require factual adjudication and invariably depend upon peculiar facts and circumstances of the case concerned. No Government servant or employee of Public Undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the Tribunals cannot interfere with such orders as a matter of routine, as though they are the Appellate Authorities substituting their own decision for that of the Management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corpn. Ltd. Vs. Shri Bhagwan.. 6. The above position was recently highlighted in Union of India vs. Janardhan Debanath. It has to be noted that the High Court proceeded on the basis as if the transfer was connected with the departmental proceedings. There was not an iota of material to arrive at the conclusion. No malafides could be attributed as the order was purely on administrative grounds and in public interest.
13. In State of Punjab vs. Joginder Singh Dhatt: AIR 1993 SC 2486, the Honble Apex Court had in para 3 of its judgment observed as follows:-
"We have heard learned counsel for the parties. This Court has time and again expressed its disapproval of the Courts below interfering with the order of transfer of public servant from one place to another. It is entirely for the employer to decide when, where and at what point of time a public servant is transferred from his present posting. Ordinarily the Courts have no jurisdiction to interfere with the order of transfer. The High Court grossly erred in quashing the order of transfer of the respondent from Hoshiarpur to Sangrur. The High Court was not justified in extending its jurisdiction under Article 226 of the Constitution of India in a matter where, on the face of it, no injustice was caused"
14. Following its earlier ratio laid down in N.K.Singh vs. Union of India:(1994) 6 SCC 98=1994 SCC (L&S) 1304=(1994) 28 ATC 246, in the case of Abani Kanta Ray vs. State of Orissa:1995(supp)4 SCC 169=1996 SCC 169=1996 Lab IC 982=1996 AIR SCW 797=1996 SCC (L&S) 175=(1996) 32 ATC 107 the Honble Apex Court observed as follows in para 10 of its judgment:-
"It is settled law that a transfer which is an incident of service is not to be interfered with by the Courts unless it is shown to be clearly arbitrary or vitiated by mala fides or infraction of any professed norm or principle governing the transfer. (See N.K. Singh vs. Union of India)"
15. In Mohd. Masood Ahmed vs. State of U.P.& Ors.: 2007) 8 SCC 150=JT2007 (11) SC 540=2007 (10) SCR 72 = (2007) 11 Scale 271, the Honble Apex Court observed in para-7 as follows:
7. The scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Supreme Court in Rajendra Rao vs. Union of India (1993) 1 SCC 148; (AIR 1939 SC 1236), National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan (2001) 8 SCC 574; (AIR 2001 SC 3309), State Bank of India vs. Anjan Sanyal (2001) 5 SCC 508; (AIR 2001 SC 1748). Following the aforesaid principles laid down by the Supreme Court, the Allahabad High Court in Vijay Pal Singh vs. State of U.P. (1997) 3 ESC 1668; (1998) All LJ 70) and Onkarnath Tiwari vs. The Chief Engineer, Minor Irrigation Department, U.P. Lucknow (1997) 3 ESC 1866; (1998 All LJ 245), has held that the principle of law laid down in the aforesaid decisions is that an order of transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a Court of law in exercise of its discretionary jurisdiction under Article 226 unless the Court finds that either the order is mala fide or that the service rules prohibit such transfer, or that the authorities who issued the orders, were not competent to pass the orders.
16. Again, the Honble Supreme Court has in State of U.P. vs. Gobardhan Lal, 2004(3) SLJ 244=[2004] 11 SCC 402=2004(3) SCALE 574, in Paragraphs 7 and 8, observed thus:-
7. It is too late in the day for any Gov-ernment servant to contend that once ap-pointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident in-herent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra in the law governing or condi-tions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statu-tory provision (an Act or Rule) or passed by an authority not competent to do so, an or-der of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulat-ing transfers or containing transfer policies at best may afford an opportunity to the of-ficer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the offi-cial status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emolu-ments. This Court has often reiterated that the order of transfer made even in trans-gression of administrative guidelines can-not also be interfered with, as they do riot confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision.
8. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tri-bunals as though they are Appellate Authori-ties over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that Courts or Tribu-nals cannot substitute their own decisions in the matter of transfer for that of compe-tent authorities of the State and even alle-gations of mala fides when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjec-tures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of trans-fer.
(Emphasis supplied).
17. In para 8 of the judgment in State of U.P. vs. Gobardhan Lal, (supra), the Honble Apex Court has held that a challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tri-bunals as though they are Appellate Authori-ties over such orders. Also, in para 7 of the same judgment, the Honble Apex Court has specifically held even administrative guidelines for regulating transfers or containing transfer policies may at best afford an opportunity to represent to superiors, but a competent authority can still order a transfer of the employee to any place as is found necessitated by exigencies of service, and such an order of transfer cannot be interfered with (by Courts/Tribunals) on the ground of it having been made even in transgression of any administrative or policy guidelines.
18. In view of this specific ratio laid down by the Honble Apex Court, I am duty bond to obey it, and am not inclined to be persuaded by the decision of concurrent bench in OA No.289/2013 Shri R.K.Sharma (supra). Therefore, I am duty bound to dismiss the present case in limine, in obedience of the ratio as laid down by the Honble Apex Court. The OA, therefore, stands dismissed accordingly. No costs.
(Sudhir Kumar) Member (A) /kdr/