Central Administrative Tribunal - Hyderabad
K Bhanu Prasanna vs Central Excise & Customs on 15 November, 2021
OA/788/2020
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH
OA/020/788/2020
HYDERABAD, this the 15th day of November, 2021
Hon'ble Mr. B.V. Sudhakar, Admn. Member
K. Bhanu Prasanna,
S/o. K. Naresh,
Aged about 35 years, Occ. Inspector,
O/o. Commissioner of Customs(Preventive),
D.No.55-17-3, C-14,
II Floor, Road No.2,
Industrial Estate,
Vijayawada- 520 007.
....Applicant.
(By Advocate: Dr. A Raghu Kumar)
Vs.
1. Union of India rep by its Secretary,
M/o. Finance, Department of Revenue,
New Delhi.
2. The Chief Commissioner,
Customs and Central Tax,
Hyderabad Zone,
Hyderabad.
3. The Principal Commissioner of Central Tax,
Hyderabad GST Commissionerate,
GST Bhavan, LB Stadium Road,
Basheerbagh, Hyderabad-4.
....Respondents
(By Advocate : Mr. R V Mallikarjuna Rao, Sr. PC to CG)
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OA/788/2020
ORAL ORDER
(As per Hon'ble Mr. B.V. Sudhakar, Admn. Member) Through Video Conferencing:
2. The OA is filed in regard to the transfer of the applicant from Visakhapatnam to Hyderabad.
3. The brief facts of the case are that the applicant, on passing the Combined Graduate Level Examination (CGLE) of 2012, was selected as Inspector in respondents' organization and posted to Visakhapatnam Zone on 25.05.2015. The respondents have a common inspector cadre for Hyderabad and Visakhapatnam zones. In order to transfer the officials between the two zones, the respondents have come up with an Inter Zonal Transfer Policy. The Inter Zonal Transfer Policy of 2015 & 2020 were issued accordingly by the respondents. The applicant applied for transfer to Hyderabad and his name did not figure in the transfer order released on 18.08.2020 by the respondents. Aggrieved, the OA is filed.
4. The Contentions of the applicant are that the percentage of vacancies in Hyderabad Zone was 50.75% and whereas in Visakhapatnam Zone it was 48.33%. In other words, there were vacancies available in Hyderabad Zone on 18.08.2020 to accommodate the applicant. The Direct recruits are posted to Visakhapatnam Zone to maintain parity between the two Zones.
The applicant came to know through an RTI reply dt. 23.10.2020 that out of 84 Inspectors selected, 34 were allotted to Visakhapatnam Zone by the Staff Selection Commission (SSC) based on the number of vacancies available. The respondents in the name of maintaining parity allotted the direct recruits to Vishakhapatnam. The representation made by the Page 2 of 8 OA/788/2020 applicant on 16.09.2020 against the transfer order has not been responded to. The respondents have violated the transfer guidelines and, in the process, Article 14 & 16 of the Constitution of India.
5. I. The respondents, in the reply statement, confirmed that the applicant has been selected as Inspector and was allotted to Visakhapatnam Zone. After working for four years, the applicant is eligible for Inter Zonal Transfer to Hyderabad. The applicant applied for the said transfer on 06.08.2020 stating that Hyderabad is his hometown and he has to look after his aged parents as well as school going daughter. The respondents submitted that there are 43 inspectors of Visakhapatnam Zone who have applied for Hyderabad Zone and that, to process transfers during the covid pandemic, a Committee was formed. In order to minimize the number of transfers, keeping in view the prevailing environmental hazards due to Covid-19, it was decided to limit the transfers from Visakhapatnam to Hyderabad to the extent of number of officials who opted for Visakhapatnam from Hyderabad. Among the 43 inspectors who applied for transfer to Hyderabad, 38 of them joined Vishakhapatnam on appointment. The rest five were those transferred from Hyderabad to Visakhapatnam, on rotation basis. As per transfer guidelines, the minimum tenure for those who are appointed is four years and for the inspectors who have been transferred to Hyderabad, is two years. As per these guidelines, only two inspectors who have been posted to Visakhapatnam from Hyderabad have completed two years tenure. The number of inspectors who opted for transfer from Hyderabad to Visakhapatnam is eight. Therefore, six inspectors who joined Visakhapatnam on appointment were considered for Page 3 of 8 OA/788/2020 transfer to Hyderabad on extreme compassionate grounds like health/spouse/physically handicapped. Further, two inspectors who were posted from Hyderabad were re-transferred to Hyderabad after completing the two years tenure at Visakhapatnam. The representations made subsequent to the Annual General Transfers are generally not entertained. Hence, on the representation dt. 16.09.2020, no action was taken. The posting of direct recruits to Visakhapatnam Zone on selection has no relation to the transfers of inspectors who already joined Visakhapatnam under Annual General Transfers. The reasons given by the applicant for transfer to Hyderabad were not severe enough to consider his case. The completion of four years tenure would not vest a right on the applicant for transfer to Hyderabad. Hon'ble Supreme Court in "Shilpi Bose (Mrs) v. State of Bihar, 1991 Supp (2) SCC 659 & Union Of India & Ors. vs S.L. Abbas (1993) 4 SCC 357 has observed that the transfer is not a matter of right.
II. The applicant filed a rejoinder wherein he claims that no screening committee was constituted to effect the transfers. Some Inspectors who have completed four years tenure have been transferred without there being any compassionate grounds. Out of the 38 Inspectors, 15 have completed four years service. The claim of the applicant is that the two inspectors who joined Visakhapatnam on transfer from Hyderabad, have not completed two years tenure. The respondents had discriminated between direct recruits who joined Visakhapatnam by insisting that they should complete four years tenure whereas those who have been posted from Hyderabad to Visakhapatnam are being considered after completion Page 4 of 8 OA/788/2020 of two years of tenure. In other words, there has been discrimination between inspectors belonging to the same cadre. The applicant sought posting at Hyderabad on initial appointment but was given Visakhapatnam to maintain parity. The respondents were aware of the Covid-19 situation while posting 86 inspectors to Hyderabad and 34 to Visakhapatnam. The Cadre Controlling Authority had knowledge of the number of officers, who were awaiting transfers from Visakhapatnam to Hyderabad and it should have been borne in mind while posting direct recruits to Visakhapatnam. The applicant claims that he worked as Assistant Central Intelligence Officer and that he is aware of the fact that he has to work at any station in the country. However, he claims that there has to be transparency in transfers and in the name of compassionate grounds, granting transfers to some officials is not fair.
6. Heard both the counsels and perused the pleadings on record.
7. I. The dispute is about not granting transfer to the applicant from Visakhapatnam to Hyderabad. On being selected as Inspector in respondents' organization, he was allotted to Visakhapatnam Zone on 25.05.2015. After rendering more than four years of service, the applicant applied for transfer to Hyderabad on grounds that he belongs to Hyderabad and his parents/school going daughter have to be taken care of. The respondents in their reply state that, in view of the Covid-19 pandemic, a committee was formed to consider the requests for transfer among the two zones. A policy decision was taken to restrict the number of transfers from Visakhapatnam to Hyderabad depending upon the number who opted for Visakhapatnam from Hyderabad. Eight inspectors have opted for Page 5 of 8 OA/788/2020 Visakhapatnam from Hyderabad. Accordingly, six inspectors from Visakhapatnam Zone who joined the said station on appointment were considered for transfer to Hyderabad on extreme compassionate grounds. The transfer policy of 2020 does provide to transfer inspectors who have been posted to Visakhapatnam from Hyderabad can be re-transferred after completion of two years of tenure. Accordingly, two more inspectors of this category were transferred to Hyderabad. The applicant's request, as asserted by the respondents, was not extreme enough in terms of compassion in comparison to others, who applied for transfer to Hyderabad.
II. The contention of the applicant is that the transfers are not being ordered objectively but by considering compassionate grounds. If clause 4(i) of transfer policy of 2020 was strictly followed, then the question of any grievance would not arise. However, on the ground of compassion, the respondents granting transfer to some and denying to others does give room to subjectivity. The case of the applicant, is that he has completed four years of service and, therefore, is eligible to be considered for transfer as per the inter zonal transfer policy circulated by the respondents'. It is understandable that the respondents took a decision to limit the transfers due to Covid-19. However, the Covid-19 situation has improved since the date of filing of the OA. The Tribunal while agreeing the respondents that transfer is an incidence of service and cannot be claimed as a matter of right, at the same time has to observe that the respondents as a model employer, need to ensure that there is no arbitrariness or discrimination in effecting transfers. A fine balance has to be struck to ensure that transfers are affected without causing injustice to Page 6 of 8 OA/788/2020 anyone. In the name of compassionate grounds excluding some would give room for disgruntlement, as seen in the instant case. The respondents have stated a few compassionate grounds but did not state as to how they graded them in order to cause the transfer of the six inspectors from Visakhapatnam to Hyderabad. It is essential that their decision has to be objectively based so that it attains the hue of fairness. The Tribunal is of the view that such objectivity has not been brought out in the reply. Nevertheless, the role of the Tribunal in regard to transfers is very narrow and therefore, keeping in view the facts of the case, the respondents are directed to consider the transfer of the applicant to Hyderabad whenever the exercise of Inter Zonal Transfer is taken up in the near future in accordance with rules and law. With the relaxation of the Covid-19 norms, the Tribunal trusts that the request of the applicant would be reasonably attended to, as per rules/law.
III. The contention of the applicant that no committee has been formed to order the transfers and that the two officers cited have not been transferred as per transfer guidelines is not backed by any documentary evidence. General submissions would not be of any assistance to the applicant. Other contentions submitted by both the parties have been gone through and since they were not relevant, no observations have been made.
IV. Before parting, it needs to be pointed out that fixing a tenure of two years for those inspectors posted from Hyderabad to Visakhapatnam and four years for those who have been posted directly at Visakhapatnam on appointment, does not appear to be logical, since both belong to the same cadre. Though it is a policy matter, yet the respondents may like to Page 7 of 8 OA/788/2020 have a fresh look as to why there should be a distinction between the years of tenure be completed among the two groups referred to. Having a uniform tenure would minimize grievances. Artificial segregation lacking the legal force is something which the respondents need to ponder upon. The Tribunal would not like to deal with it further more but leave the suggestion to the respondents to re-examine this aspect to the extent feasible.
V. With the above direction as at para 7(II), the OA is disposed of without any order as to costs.
(B.V. SUDHAKAR) ADMINISTRATIVE MEMBER /Ram/ Page 8 of 8