Central Administrative Tribunal - Kolkata
Sanchita Kumar vs Revenue on 29 July, 2019
\ o.a. 350.01596.2018 CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA No. O.A. 350/01596/2018 Date of order:
i Present iHonTjle Ms. Bidisha Banerjee, Judicial Member i Hon*ble Dr. Nandita Chatterjee, Administrative Member Smt. Sanchita Kumar, (IRS), Wife of Rajeev Kumar, Presently residing at Flat No. - 2, 34, Park'Street, Kolkata -JZ (|@e fc;« % • ^ % *1* ' t x% £ : iP % vt m *! m tk 1 % ?£ n i . Jr •B % Vi i-#!« / P-
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%% ^%The PrirfcfpM Chief^Commis^ionej® Income % ;4 I mChief Commissioner of Income Tax, ;
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West B^g'^Q^Sik^irri Region, 1
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4. The Principal Director General (Training), NADT, Chhindwara Road, Nagpur - 440030.
.. Respondents 4^' //' 2 o.a. 350.01596.2018 .
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For the Applicant Mr. R.K. Dubey, Counsel Mr. S. Majumdar, Counsel ?
Mr. M. Malhotra, Counsel [V For the Respondents : Mr. S. Paul, Counsel Mi .•J:
u ORDER IQrall Per Dr. Nandita Chatterjee, Administrative Member;
The applicant has approached this Tribunal in the instant
--tlbdi ASn!ihfetrSiv^; Tribunals Act , 1985 O.A. under Section % alleging violation of transfer policy by the respondents on the ~--r ( basis of erftjfieous copii|at{|n <|f t|e field po^ngjpf the applicanljh the In pal^Llar|the •ft 1r following relief h#e^beei^(S^Hfenphil O.jJf*.
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it"|a) Leavegfee^grafi^jF'^^fclftli^iSlstant ^plication-ex-paiie dispensing Wiffithesex^^S^^V'" '~:P' p 2''. "¥ & rr. (Id;),. Respondra^ mithomtiel cbrebted^to correct the mandatory list 1 v the extent applicSbl1! to applicant by removing the •i applicant's name Tronrthe- irripugned^m^ndatory transfer list 2018 ; (Annexure,Ai9j and C8ii^^^e^^^fe?5>rder Jf6^P2Q18 (Annexure A-
11) to the extent-upf it^s application-to the applicant.afid thus to allow- the appUj2ant#to. cbnti^f^in her present placelfffppsflng pr otheE'post
-in KblkStal^till^'Gompletion of her tenurb^h Kplkata/as per the tonsfer/pl^mentlbidelines; / / , n ,,, & % .•.rr- &
(c) ' To cedi for records of the case; f. .• /■ , 'c- 'ii. s- ,!' ^ ' £ ~Vl
(d) Award costrof the litigation and/or; jf"
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(e) Pass any'order or orders, direction and-Z-o^directions which this Learned Tribunal may,deemht_aiid-.prJoperTih the interest of justice."
2. Heard both Ld. Counsel, examined pleadings, documents on record as well as citations provided in support. Written notes of arguments have been filed by both parties.
3. The applicant's submissions, as articulated through her Ld. Counsel, is that, the applicant is an officer of the Indian Revenue Service (IRS) with nearly 29 years of service, and, that, her spouse U-^L ■ .f' -T* 3 o.a. 350.01596.2018 also belongs to one of the Central Services of the Government of India. According to the Transfer and Placement , guidelines for officers of the Indian Revenue Service dated 16.2.2010 and, particularly, Clause 4.2 of the same, a total stay of twenty four years is permitted in a region in entire career spent in all grades (in Group 'A' service) including and upto the grade of Commissioner of Income Tax, - -and,, that, according to the .«■ similar ifpei|pds of I S mm LEesppJn^^^^^^Es.y^a^t||tative '(gue f|r the ap|San|* J: pfltecytenure of 18^4rs fr f! $$05_Syton Region." Tile mpre on field pjasting»y^fst ;] ' I' i' applicant dbjected^o^tn'e same in writingfe^j^gioinkthe ddfeails \ X/ % J*' 1 g a8 r of. her^exempt^pstihfs^ also the pefi?d w§i3 jaccorpng to the app^^tN'janulcf^^^^^.te^^^1 that*./l "j^ipulsory , 7 ti h 'Z1 wait" and, therefore, nm^tp^be^counted^as^pentgpn field postings. i i i The applicant claimed'ffttehsefepemod^tf^compulsory wait was to t < i ■ I: be computed accurately so that her tenure of field posting in West Bengal and Sikkim should be adjusted by a period of one year and eight months less than that as computed by the respondent authorities.
i 4 o.a. 350.01596.2018 f The respondents, however, disregarded her complaint and, based on wrong factual data, issued a mandatory transfer list on 21.2.2018, to which the applicant once again objected in writing, and, that, disregarding all her complaints, a mandatory transfer order was issued on 9.10.2018 vide which the applicant was transferred outside the region of West Bengal and Sikkim and, hence, being aggrieved, the applicant approached this Tribunal seeking directions on the^re^pdndehttauthorities^for correction of . ^1 Wii, x the mandator^is|lafid to remove her namefcom tfog transfer order X % 11 I \ . TfteJpllowingjiJ-bmids, h|vel blenfedwaideed, inter alia, by* the ?
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|af The l^ansfer^of^^^^pliGaht^is^infclear violjaffbn of t
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binding upon tn^-respondent authofifies who are bound to F
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ratio in Mohinder Singh Gill & Anr. vs. The Chief Election Commissioner (AIR 1978 SC 851) t 5 o.a. 350.01596.2018
4. The respondents have strongly controverted the contention of the applicant with reference to the Transfer/Placement Guidelines for Officers of the Indian Revenue Service / Central Board of Direct Taxes, 2010 and, particularly, paras 4.1, 4.2 and 4.3 therein. As contended in their written notes of arguments, the applicant has completed more than 24 years of posting in the same region and, subsequently, ^the application has become infructuous and deserves,,to, %accordmtfy.
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The ^respbii^ehts have also argued %i^.rf_^as the Tribunal /. O'" * while 4hjufea|i:hg in
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tran^fenbr^ier date.^%^. 2© 1 % |ut| h^l om^^ayed ffi^^eration J^ \ .C* Si off the; same, th^smd^ord^^^^^^ri^.rfb* e^t with<^Jbdhg 4 ii|ipl^^rited. Irftupp.QE^^^^^^^SeSS^hav^ iited thematic Ih I State, qf Gujarat S' Patel &6ff J sea 74 to highligrnthaft tp sfa| |r4kt^«dd@nterim ordtMosJs r IW XL/ £ | 1 itl, force upon topgs^^fcrfsufstMLU^^Ogg.admgs.
^ fI ; 5. % The^rimamiagmie giving rise to thfeont^versmis whether \ ■:Vr'/ the transfm^pmi6y of me^^spondents^have b^|ri^vi0latec^n the ?• \ \, " ! Jf i context e ti V e period I ir to be classjfi^^as ' oriNGQmpulsorv wak^gmd ^tii^correctness of j ' XfHaaiK^-- i |!| \i consequent placement iH^andatoi^trafisler list of 2018. t il H il 6.1. At the outset, we delve into the concept of transfer. A three a-Hi r.i Judge Bench in V. Jagannadha Rao v. State of AP & ors.
(2001) 10 SCC 401, while referring to the judgment in B. Varadha Rao v. State of Karnataka (1986) 4 SCC 624, had ruled as follows:-
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"14. Transfer in relation to service reduced to simple terms means a change of place of employment within an organization, as stated in New Oxford English Dictionary, 1993 Edn., Vol. 2, p. 3367. It is an incidence of public service and generally does not require the consent of the employee. In most service rules, there are express provisions relating to transfer. For example, Fundamental Rule 15 provides:
"15. (a) The President 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 fiachhisjlien not beeh^suspended under Rule eg
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(b) ^JNotHin^co;ntained in clause (a) of thil rfRuJe^jr iir%lause (13) of Rul^9 sh^ftpperate to prevent the retransfer ofM^oyemmlnt servant i; tp'lheiposf^an which had it noift&n suspended in accordance with the?^wisions of cldusertakpf Rule 14."
- % .jifr %. i. i f 1j 15^%! Service ^Sf^sfer- F,^ exafcple, £ A■Rule ^|j8)%f%hg| gunjl^ier^^^es gover^mg^Ce^al ■y . # supplementar :r th^mpyemeKt of aMgovemmentsservant ■ tS V ■V! ' ^^^^HeTs^emplo^ed to anoSier such fl «■ «■ "3 & r
(b) In c(^^equ^^ej.^f afclla^^elbf msTieMquarter." ai !:
Hough definitionlflHayfdifffer and ih irranj^ases transfer is coriceiyed I i; V % As observed b'yvthi^Oourt in B. Varadha Rcfov./State of.Karnataka, l'£:. f Vj; %it isCnow*well^vse,ttied that a govemment^serv^it^s /iable|fto be ^transferrea^tp . a sirhilar post in the saine^cadrd.^wh'ich?^ is a&ormal flature%nd incidence oTgoyemment-se^ce^and gov^mmenf servant can^clairr^to remai^Jn-ajDarticuiar place^qr|rka particular n€st unless, & of cou'rse, hissappoihtrneritfits'elf'i's to^spe^Cified nod^tr an stable post."
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In N.K. SinghiV. Urdmoflndia (199Sfl LLJ 854, Shilpi § \ } ■i h:
Bose (Mrs.) & Ors. vs. State of Bihar and Ors. (1191) 2 Supp i.
659 as well as in State of M. P. and Ors. vs. S.S Kourav and ;
i i H Ors. (1995) 3 SCC 270, and in Ekta ShaArti Foundation vs. 1 ?■ Govt, of NOT of Delhi, AIR 2006 SC 2609, the Honhle Apex n• :
i Court had ruled that courts should not intervene unless the 1 ! 1C decision to transfer is vitiated-by mala Tides or infraction of any I I & S & iii.
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professed norm or principle governing the transfer, which alone can be scrutinized judicially. It was further held that challenge in courts of a transfer, when the career prospect remains unaffected, and, also, there is no detriment to the government servant, must be eschewed and interference by courts should be rare. Such interference may be made only when a judicially manageable and permissible ground is made out.
•a In the instant m-attei|, h|p Alleged violation of 'V, professed norn^ap-dlpfinciple governing the^tr4]pfer oftf|S Officers.
6.2. The tehljSy annex€^'M|''Wpt%-o the Cik. fc
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i 1 •f'i I ■%!*&+ 1 fij I ! 51'i w I^ia^Rewn^j^^ce. k ffls* fi !4 ¥ r t % £ 20 J.0 rV. a* \ * % 'll i; ".INTRODUCTION. ^-• ' J? / .'i;
%, ^ / ■ - ' , . ^ ^ 'G X jfF l. KThe Central BokrS^of^Jb^ect >T^xes''(the Bd^rd),^Department of ,.r ^ey,enue7%linistry of Fmarice, is the^Cad^ Contralling Authority t i' for fe^Indiai^evenue^S^^ce^IR'Sl offergPln order to bring E greater efficiency, effectiveness and Jraffsparency, and also to '■f! provide better bpportu-nides^tpaoffibers for excellence and proper career planning, appropriate placement / transfer guidelines are a ! i h i- 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.
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4. REGIONS AND TENURES 1 4.1 For the purpose of these Transfer Guidelines, the jurisdiction of each Cadre Controlling Chief i ■ r ,T .
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Commissioner of Income Tax shall be treated as a separate Region.
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 »• preceding year completed in field posting-
■ (a) 8 years of continuous stay in field postings in the i following eight metropolitan stations; ■■ New Delhi, Mumbai;,, Ahmedabad, Bangalore, I£ it 1CBDT tfe present to tbe^O.A. k.
are ^mphasiste
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2. Exempt^posts7^T^*!?The^s;ia!S:attacHiH Directorates of the * Board(including^earlier Directorates like^©irectorate of Special uir Investigation, Inspection^Diyision^e'fCfff^as well as posts in the ! Department of Revenue, deputations/postings to Central Economic Intelligence Bureau (CEIB), Financial Intelligence Unit (FIU), NADT (including RTI), Enforcement Directorate, Authority of Advance Ruling (AAR), Competent Authorities (CAs), Appellate Tribunal for Forfeited Property (ATFP), Income Tax Appellate Tribunal, Central Processing Centre (CPC) and Settlement Commission shall be treated as exempt (para 4.6).
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3. Deputations/Board postings: Deputation of officers under Central Staffing Scheme and other deputations shall be regulated as per the guidelines issued by the Department of Personnel and Training from time to time. The period of deputation outside the Department i shall be excluded for counting towards stay in the 'station' and Region' if tenures of the officer, subject to the total stay of 24 years (Para 4.2). K *5 However, the same shall be counted, if the officer so desires. On return &
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f* /T V 9 o.a. 350.01596.2018 from deputation every officer shall report to the Board, and shall immediately be posted as OSD in the office of the local Chief Commissioner of Income Tax under whose jurisdictions/he was serving while on deputation till his/her regular posting. This interim period shall not count as stay at that station. Board posting would include OSD postings in specific roles that is other than OSD on return from I ;
deputation.
4) Not counted: These period would not be included in any stay computation. Periods spent on training and study leave at the same station or in the same Region (including simUar assignment abroad) will not be counted as period of stay at that station or Region, (para 4.9). Not counted periods would include OSD on return from deputation or similar period of compulsory wait.
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As the ap'plifeaiit^has relied largely on CBp^'s reference to the period not to be counted for held: pastings, it is relevantto v. •;'/ v £ highlightFonce agaifgffi c&ififcalioii offere^f'kCBDT as#ind^|;
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clarified by the CBDTLas/the.Jpeilodijwhen^he Officer is unable .to
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be . posted ," substantively as "the" Officer^,has'' returned from '■ .7 'F, w"" -r*T' iv. \ '?} deputations b^ jsimil^i.periods and is cpfiipelleli.Voywaitrfor a suitable postirlg. It is Worthwhile to note, that, compdlsory^ wait has v ' -<.1 not been defined otherwise in the clarifications prbduced before
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6.3. The respondents and the applicants have both furnished I their computation of the applicant's stay in West Bengal and Sikkim Region. The respondents have calculated the applicant's 1 tenure of 18 years 3 months as detailed in their Annual General Transfer (AGT) 2018 dated 21.02.2018 at Annexure A-9 (page 76) 1 10 o.a. 350.01596.2018 to the OA, the breakup of which has been referred to in the Annexure A-13 (pg- 34) to the rejoinder.
The applicant, in her composite rejoinder, and, also, in her i ' written notes of arguments, has disputed the calculations of the respondents. In the composite rejoinder of the applicant, the applicant has disputed the entry at Sri. No. IS of Annexure A-
13(pg-33). According to the applicant, the respondents have * * considered her to be on Gpm^ulsbix'waitTrom the^period 1.4.2013■?* % to 23.4.20T3, (gficB, fs only for 22 days), #i#r#she tfldjoined as
- €3^ CCA, Kolkaita^after retu^^^^^^^&Qn the other hgmd, the ' rfCl % respondents, in •f Jw I | %Plra? Ilf h^^admitteg^^hatithe \ V X agVlicgjre was oW 'c^^MiMfemunder ®A, Kolkatf5 film , '£ l|4.20T3 to 13.^£)T3y;4S^M^^^^m0nSis^an4g3 days.
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comP°^#fe3ofid|r|is1|t^t fi|e ^ire period feltween F m i tivi i-v 1 1:^.2013 year andf 8 months ^t'oyW'^>^ated as on She respon^nts^h%. a^StjgdJn th^r^y Mi the applicant^was\pn wgtl^le^een^Ol.O^OlS to applicant^was^pn \ t 13.06.2013. ItXg§, henbe^.jqecessary to^exa&ine^fc profile of the ote^mecessary^to^examinejO^ s Sii .Si ! applicant w.e.f. 13.6we proceed to do so as under.
iJ ,! The applicant, after receiving her order of transfer dated 14.6.2013, which transferred her from Kolkata to Bhubaneswar, approached the Tribunal in O.A. No. 735 of 2013 and the Tribunal, by its order dated 18.7.2013, stayed the transfer order dated 14.6.2013 till the next date of hearing. The Tribunal also U^' y Vi -p"
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t 1 ? granted status quo ante as on 11.7.2013 in the same order. The order dated 11.7.2013 reads as under:-
F.No. A-22011 /4/2013-Ad.VI ;
Government of India Ministry of Finance Department of Revenue i i (Central Board of Direct Taxes) i New Delhi, the 11th July, 2013 ORDER NO. 127 OF 2013 ® S. ' -i-j. K In partial mojifioation ^ordepNo, 106 0^2013, the following posts/transfers gr^d^oT-CorkmisgidfierlAIDiredfer of Income Tax are herebyt?prd'ered\ath immediate effect^idlu^tdffurther^rders:
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CIT(Ssp)£ '^Hyderabad $ 5 r £ 10 I *rT K £ ;2w*r gffQban^Bfji Bhubaneswar f (OSD) c $ 1 f s SSI F S^"* g> fence 1 The W disposed ffiv^dut^^ctel|®|die^^g(CCA) are ejected |> 1. S ^l1 I & I 'I ^tranir/poStlagalled|lssied|n%G#8l3 shall be dSe^dfto \ have beenrelieved^erTl1.1 • ? ^t**"*^ (J 'I 3. Hindi^ve^ipn^pf^he OTderl^LTfoild# P f % % % ./• / / \' V. xZP.'&'S # % \ % 15^35 #
-. Under Secretary to;the Gove mme ! of India"
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The operkitional "part^f^ie order^wfiich vga^"'stayed by the i!.
l-i Tribunal was containe3^iff^Ra^a^2^oM^Sove order. It refers to ?! l- officers whose representations have been disposed of without any a V change, and, that, failing relieving of the officers with immediate 'x effect, all officers shall be deemed to have been relieved w.e.f.
11.7.2013. The applicant had submitted a representation against v transfer order dated 14.6.2013 which was not considered. Hence,
-I according to the order dated 11.7.2013, she stood deemed relieved U-kv :
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i from her earlier place of posting. When the Tribunal stayed her
transfer order and ordered status quo ante with respondent to the order dated 11.7.2013, its effect, primarily, was that the transfer order dated 14.6.2013 to Bhubaneswar continued to exist as it was not quashed with reference to the applicant. Its operation, however, was stayed as the applicant was not allowed to be deemed as relieved by virtue of Tribunal's order dated 18.07.2013.
A The matter waststibs^qu^nSy^heard^and^disposed of on :
22.4.2014 ; wh,feni^le^'Tribunal disposed oA%,with the \ l \ 1 I \
- ! "4^^111 such viewM tie matler JdtiT the^fephsent of the^artie's the / qfflJW disj^ %%%|4i#W&em>Ucant a / ciomprehensi^ Npi2 within^^Ho'4of .t'' ii^days fro^eJft%^«€#a^n^as order, ®ch lie ^fai^thority hiSelf or^feG^^^^^fint^EioritMhall consifcin #e flight of the pass afeasonld :
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i *% The Id. %ounselfto^Tt| ap&Sint^also ^ihiits at the gM up|h I (%°%s Uiidertak^japt |o t Mife'gate further if tt^kompetint pCutfeori^ju^pf due consideratiohrtif her ^ prayer in^gfet^AjJl^^^reaspned and spea^g % order, whfSkwe^rdSllfa^^^ ( . % t l i authorities \v< i :! and her tig as bn 1 L/^Ol^were allowed f to be stayed till disposal of the representatibti. The authorities i •i-
;!I. considered the fact that the applicant's spouse is a Central Government employee belonging to the Central Government i Services and thereafter^ modified the orders transferring her as CIT i;
I; Asansol and thereby retained her in the West Bengal and Sikkim 3 ■1 Region.
v •e 13 o.a. 350.01596.2018 The respondents have cited the ratio in State of Gujarat v.
irv Dilipbhai Shaligram Patil (2006) 8 SCC 72 to confirm that a distinction has to be made between quashing of an order and stay f of operation of an order. In so far as quashing of an order is concerned, it results in restoring of a position, as it stood on the date of passing of the order. The stay of the order, however, means ! that the order would not be operative .and that the order impugned has not been wiped out fromlexist'ende. Jl^e applicant has sought
-fxV 1 %1 ** *> *■ \ V' to respond to ^t-h:eLres"pondents' reference to-ifState oi%6ujrat vs. V. / DiHpbfiai fgaiigram mm © / St, KTj^^ov^nentioke<Aase appli&^in ti&fact * f^and drMt^ces\heUtafit afieAthe va^enSte of of the d^ean$jgre ii . exc in fav8m>f grant :
& of rel^io^emp^^^^^rn^eferSrt^ h'^py legal prtngplef&s i i+mlt 4 relied^on^>ya^^^^^^^Sm9ra>^mct from ttiiRactsW the oBfe. Thusdh^^^^^mmling ism^lly inapm^leb 1 fe & ff!S is d£S; *tSs jr /i \ a ? % f.
11 OS® aPPlica^^P it contentiol^ t|e respondents b^me^a^^^^^^fcisputF%n^computat®n.
\ r %, i Thet legalf p^mci^le as propounded, hewevfer, ^feas\not ibeen \ Y#/f X. controverted^ ' \ ^Sy / /• i % ✓ ?-
6.4 . In % cbmpliliace. the^Trib,V .nal dated 22.4.2014, theSespondehtS^issued^rforder^dlited 25.11.2014 (Annexure A-15 to comp^sTfe^fejmnder). The said order is reproduced below:-
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F.No. A-22011/3/2014-Ad.VI (Part-I) Government of India Ministry of Finance Department of Revenue (Central Board of Direct Taxes) New Delhi, dated the 25th November, 2014 ORDER NO. 212 OF 2014 kx )% .
l \( / 14 o.a. 350.01596.2018 r Smt. Sanchita Kumar (90078) CIT, UOP to Bhubaneshwar as CIT (TDS) vide order No. 106 of 2013 dated 14.6.2013, is hereby, transferred and posted as CIT, Asansol (West Bengal and Sikkim Region) with immediate effect and until further orders.
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2. The compliance report regarding relieving/joining shall be forwarded by the office of the concerned Pr. CCIT(CCA) to the Database Cell at [email protected] by 28.11.2014.
3. Hindi version of this order will follow. :
(V. Padmanabhan) Under Secretary to the Government of India Tel. 011-2309-5475"
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It is worthwhile to note here%that when the applicant was moved as GIT^Asagsol^her place of pd^iifg^was shown as UOP Bhub^es^# CIT (Mp^A-15 0% This ■'v respg^otsufferjorrtyny order o^the % 1 I \ in|irmi®hs the ^.s r:-} 6 saa^MaS^^m^imented^ h|r .if %M[ 1 epS* J| relievteg was st^^tyf^^^^Si^^tedH at, although tile ^ph^t receiv^^t^f^ hanction gg Cl|, A|ahffil, no records^%iroi beln |)ro4g^^|f6re us to proveor&o ! su4;stantiateniat4pie^pplicant Had challenged^her. designation^ as %.4 ^ \ , r J 4 "UOPS-Bhuhaneiwar as^pIT (TDS)" either^by re^elsenting aitb the % \ ■ ' r- * authoriti^or^ecotee^l^ion^^^ / / » > The applican^Mias claimed that the^eriod^ 1.4.2013 to y-:n •: 13.6.2013 as CIT (OSD), ought notto.-count in terms of para •i 1.10(4) of CBDT clarification. Further, the period from 14.6.2013 to 4.12.2014, i.e. one year five months spent while the status quo i-
ante order continued, should be treated as CIT, OSD and, therefore, as compulsory wait, and, should not count towards field postings rather it should be excluded from computation of the period of stay at a field posting due to the reasons that the L V. i /' o.a. 350.01596.2018 1/ 15 ~ - vJsii 7w transfer order issued on 14.6.2013 was never f implemented/effected, it was modified to that of Asansol where f she joined on 5.12.2014 and she never assumed charge at Bhubaneswar (TDS); rather she continued as CIT (OSD).
According to the Respondents, while the period between 1.4.2013 to 13.6.2013 as OSD admittedly would not count towards field posting, the period 14.6.2013 to 4.12.2014, however, iA would count as. fi^^i|^i|i|g^^)d, ^plicant was under order of^ah^ef/posting (UOP). & / Ja# A c$tpps Jquo anfefj^fidtesit&djmplies^tfte washings were biKsip or the^ate^o|,^|a|s|l^ previoply M|the lait, aeMd l^e i **<. ■ ^ i hiatus quo ant&i|^Gted^^l|i^afifeaaeiat>55j|is Tribunal vifle ftty" wri \\y 1L7' 2t '| =i I 1 status qu|i=fr ap.te/^ojhsfei|^ed in passing thd^Cp^OS^Oj^/as i^the sraTg natures, of ^omp^lsory^wait". The resnod^ntsJil?^e^cco^ingly ' X \'" ^ ■*'■./' / admittedVtha^jhe ^enM^v4,201^1io"' ?13J^01J# was on % ''■St ■'A >■ 'compulsory wait', '**1* '(* jl & j 6.5. The applicant hias^elied^heavily^^^her executive profile ! which are web based records of an individual official's qualification and postings. It is noted here that this profile is subject to amendment /updation and the final authority to E t <.i confirm updation of an executive profile in case of an IRS Officer would be the CBDT/Department of Revenue, Ministry of Finance, Government of India. The applicant would refer to Annexure A-10 L< V 16 o.a. 350.01596.2018 i to the O.A. whereby, the Nodal Officer and the Administrative Officer/DDO has purportedly verified her period of compulsory ! wait w.e.f 1.4.2013 to 4.12.2014. It is noted here that the correction was offered by the applicant/officer herself and the DDO has certified according to the service records placed before him. There is nothing on record to prove that the order dated 25.11.2014 (Annexure A-15 to the composite rejoinder) that noted that the applicant was TOP|to^|aban^\^a-'_as^CIT (TDS) , was placed before th^S^ntying officer and, if sbf rfW verifying officer had commfced an errorJt^^M^^^^ords whicfeare contrary to 1 S it .
DCIT_fHQ) for f^^^BwRegioiSwhere agmh the facts^ated by Me a5pl:ic«^^%Ompulso»!walt, ha^Jbeeh ; 1% $ I"' ^tat^dy be corre^^^Here again <jues1|^^pFises as to»whfeth^'r tfie orders dated^^^^gCi4fwe!re elcamlnefd nriox to issue of |t^o \ ' / Objection ^eeEtifi^a|e"^(^OC) /(NRC). It g^^Mout paying |that V: ■r since %he officer^had riSt^oined her assiafment%t- Bmibari* swar, there would hbt^be a^^^^^PARs|fCr!'lhe.^eriod^v/hen her performance was,not stsbji^ctl^)|appraisal^*' ■A-
K 6.6. The respondents haLverissuedsa^sp^aking order in compliance to the Tribunal's interim directions dated 12.10.2018 in O.A. No. i i 1596 of 2018. The speaking order was issued on 3.12.2018 and ! the following are inferred therefrom:-
That the representation of the applicant dated 16.10.2018 was placed before the Placement Committee and the committee i observed as follows:-
i x i 17 o.a. 350.01596.2018
(a) That, the officer's plea on spouse ground had been considered by the Placement Committee and the officer \ had been transferred and posted at CIT Asansol, West f Bengal & Sikkim Region vide orders dated 25.11.2014 in partial modification of her transfer to Bhubaneswar.
(b)That, only the period of her rejoining from Child Care Leave i.e. from 1.4.2013-to.XBDT order dated 1.6.2013 :>\v dated 14.6^^compulsory % v^ait andl^lnot to be counted for the^|ppose%f her total %L A 1 m.
? sta^ih-the regio^p mmr $ / /■ • li & % % .r (c^The office^#S;d ^p^leiedi nioreifc§n 18 yeap^ onkher •f P
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the 'Nr^spondents ^ave relied Jbn .judicial i^t^^]o^.yaltep^ /'
(i) %nil UOI (Cimato. 4723'of 1999 and CM. 88S§^f4m9sdt^3W^:i 999 (HC of Delhi)
(ii) G.J. Fernandez v. State of Mysore (1967) 3 SCR s' 636 f
(iii) Shilpi Bose (Mrs.) and others vs. State of Bihar > t and others, (1991) 2 Supp. 659.
(iv) State of MP and others v. SS. Kourav and s others, 1995 (3) SCC 270 > i i 18 o.a. 350.01596.2018 i r
(v) Ekta Shakti Foundation v. Govt, of NOT of Delhi AIR 2006 SC 2609
(vi) State of UP & ors. v. Siya Ram and anr. AIR 2004 SC 4121.
h In conclusion, the Placement Committee had rejected her »*:
* ft representation, which, although endorsed to the applicant has not ' been sought to be challenged;ibyddie ? applicant at any stage during :
pendency of the-O.A. e^^by^li^'li^a^^n^nent^petition.
6.7. The^appl|c^^^a'd' cited Home -^s^Darshjit
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seryant^G^mot b^omp&edUf chrry auffL promise^whi^ is ^\ / eotiti-^^ to |ie j Si1 w#-_ I { Jan^g/ placemgt^guid^^^^^^^^pfcaj.e.vno.minder cl^.eng|, r dfciot wc the im^gne| i w ^r. I period §qf 1 year of^^nthp whJi ||h%^ap^^^pit claims toiebe on H: '^mpulsory wait^^^^^^^^^^^^^fhe^clarificationyof .•! CBiDT on /^compull&r&. wait" as well a^the^applicant's Jmn-
. X K^A N/ . V challenge t?6. OfftSe Order^dated 25.11.2,044 when^she^wasfstated / ' I \ \, ^ *N \ ' jf jf ii-\ to be yT if i .
The apjJibant h%s^alspf taken recoufse* tOgMffhinder Singh & Gill & Anr. AIR 1978 SC-"85-I^to^aver-that the validity of an order i cannot be supplemented by fresh reasons or additional grounds of i i r If: the statutory functionary. We do not find that any additional J [i ► grounds or fresh reasons have been furnished by the respondents Pr ;
$ to controvert the claim of the applicant apart from reiteration of
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19 o.a. 350.01596.2018
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6.8. The applicant's primary allegation is that the policy has been violated on account of incorrect computation of her tenure in the West Bengal & Sikkim Region in Field Postings and the pivotal period ascribed to such miscalculation relates to an interpretation of 'compulsory wait' as provided in the CBDT guidelines. CBDT has nowhere stated that postings, apart from return from deputation, or similar circumstances, will qualify as 'compulsory wait'. It is also noted thateit ^isClieijihability of thei; respondents to %i % % i. f $ % \ ** ■ ^3 # & * suitably post Jhq| Official returning from-4re|utatioh;^,etc. that O compels the%pfficer to be'^^^ra?05llo%^;wait. It i'^ not rfhe:)officer \ f I #%>.
who8 decides whether^to^beioh compulsdr^, wait, 'katherithe \ aHthontie's will peno&sp|ior|to f itS5s'' W | i|;gufe#postin^ralLebe^p^^&^@riGp®gMory wartS* Altp I. fgnmnt is simila3®riof tts " ,he's^ii f f^*,ura p|sting such canno^e i ri X <#* i attnbuted/o a situmibn when the officer-Jids nut re^tu^ied frohi a t ir-
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ThS^respbhdentsihatee/ained^h^Spplicant^under orders of X ^ " '*■* -1' ^ %*x " ■ ^ jr "PHy.
posting to Bhu-baneswar„. till amendment of -their orders on t i 25.11.2014. The applicaSit^did^no.Wqueffion her status described i i as UOP to Bhubaneswar and, if she did, nothing has been brought ;
before us on record. Consequently, we are of considered view that the impugned period from 13.6.2013 to 4.12.2014 cannot qualify j as 'compulsory wait' in terms of CBDT guidelines and clarifications thereon and, hence, cannot be considered as "not to be counted" in the field tenure of the applicant.
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6.9. In Abani Kanta Ray v. State of Orissa 1995 Supp (4) SCC :
169 the HonTsle Apex Court has held that is the settled law that a transfer, which is an incidence of service, is not to be interfered with by the Courts unless it is shown to be clearly arbitrary or i vitiated by mala Tides or infraction of any professed norm or ?
principle governing the transfer. The same ratio has been reiterated in Anil Dhall vs. Union of India (CWP 4723 of 1999) (HC of Delhi). 4* In the instanfeOA, the order dated 9tl#.20£8 transferred a %f3 i total the 0?A.j. Meii^e, the ^ i I | i % % transfer^order canrafPfee ltaf|dfto|befarbife|ky or disc|imin%ory ■ fW i?4 "\\\II'/✓' amongs^IRS Offifeers^M^a^f^/Md^ n©C-'be^ alleged^aMl fee * r |ot bj .ub,n^i8ia^^a|fel^|W "J I w- ^/111\ \ m Pit $ F , 0 srsrf fI:
observing jthat tr^flfer^ was an incident$^ sbrvice %nd thht a ^ OsS / /' Govemmerit servant of^an, employee of^prlblic urrd^rtafeinginas no i i •y legal rightn forAbeing phsted^-att -any-pa^tichlar pltce, Jias clearly ;
^ ^ ^ «****' jT ' r stated that "wherieverfca-^ublic sejryant-^fs transferred he must "V? "
comply with the order...
The Court further pointed out that if there was any genuine -
difficulty in proceeding on transfer, it was open to the employee to make a representation to the competent authority for "stay, M V modification or cancellation of the transfer order/ If the order of I 1 transfer is not stayed, modified or cancelled then the employee t:
has to carry out the order. i-
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ml* *!• / / / ' / 21 o.a. 350.01596.2018 m\ 7.0. Hence, upon sifting of facts, examining the legal position, i-:
scrutinizing the policy, and, having applied -the ratio upheld in ,! various judicial pronouncements, we are of the considered view that the applicant had completed her prescribed tenure in the 4 West Bengal 86 Sikkim Region and is hence subject to implementation of Para 4.2 of the CBDT Transfer Placement Guidelines of 2010. We also hold, that, there was no violation of * the transfer guidelines^and^cohwq'bfent' placemeiife of the applicant % in the transfer®sC/C^ ^ ^ ^/| % i, 'Hi L# % fek FUrttej^fidniittedijgrt^^^p^tet had jfiSed West Bengal %J|d Sikkim^gleW^6|l|.19§3J^refrom ltj^ns|jres that years1®|!ickg 1 I #te@ent tJfe P,,cemlrtS3^»^'-J '"'ans.
0f t]C:BI|' " 5 A i .r?J ^ The O.A. hence falls t;6 ^uccieakan^d isfiismissed ohfcmerit.
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(BidfShaBSiierjee)
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(f) Ot, of prepsrsuon c? copy..----------
(e) Ot. of delivery of the copy to the applicant...-*.................. ----