Central Administrative Tribunal - Delhi
P.C.Gupta vs Union Of India on 20 April, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA NO. 2341/2008 New Delhi, this the 20th day of April, 2009 HONBLE MR. JUSTICE V.K.BALI, CHAIRMAN HONBLE MR. L.K.JOSHI, VICE CHAIRMAN (A) P.C.Gupta Additional Commissioner of Income Tax (Admn.) Aaykar Bhawan, 16/69, Civil Lines, Kanpur, Uttar Pradesh. Applicant (By Advocate: Sh. P.P.Khurana, senior counsel with Sh. Sachin Sood) Versus 1. Union of India through the Secretary, Department of Revenue, Ministry of Finance, North Block, New Delhi. 2. Central Board of Direct Taxes through the Chairman North Block, New Delhi. Respondents (By Advocate: Sh. V.P. Uppal) ORDER
Honble Sh. L.K.Joshi, Vice Chairman (A) Sh. P.C.Gupta, the Applicant in this OA, Additional Commissioner of Income Tax, is aggrieved by the order dated 12.06.2008, issued by the Department of Revenue in the Ministry of Finance, by which he has been transferred from Delhi to CCIT (CCA) Region of UP (West). The Applicants grievance is that under the policy of transfer, formulated by the Respondents, he was eligible for remaining on a posting at Delhi for 8 years and he had completed less than seven years in Delhi. The Respondents wrongly calculated his stay in Delhi as 9 years and 3 months, whereas, as per the Transfer Policy, for the purpose of counting the period of stay in Delhi, certain periods should have been excluded as exempted from being counted as the period of posting in Delhi. The Applicants wife is also suffering from Huntingtons Disease, which is a terminal disease and she is undergoing treatment for the same in Delhi.
2. The Recruitment Rules (RRs) for the Applicants service provided that the officers in the service are liable to be transferred anywhere in the country. In order to follow a rational basis for transfer of the officers and for introducing transparency in the exercise, the Respondents framed a policy for transfer of Group `A and Group `B officers, which has been revised from time to time. The policy was amended in the year 2003, 2005, 2006, 2007 and 2008. These are annexed from Annex A-2 to Annex A-7 in the OA.
3. A perusal of the transfer policy referred to above would reveal that for the purpose of posting and transfer, the country has been divided in five areas, namely, East, West, North, South and Central. The areas have been further sub-divided into regions and each region comprises States, which are classified as `A, `B and `C. Different tenures for various cities have been stipulated in the transfer policy. Certain postings at a particular Station have been excluded for determination of period of stay of an individual officer at that Station. These postings are, for example, those in the Directorate of Vigilance, Directorate of System and Administration, Income Tax Appellate Tribunal and Settlement Commission etc.
4. The objective of the transfer policy is given in the introduction, which is reproduced below :
The Central Board of Direct Taxes, Department of Revenue, Ministry of Finance, is the Cadre Controlling Authority for IRS (IT) officers. In order to increase transparency, and also to provide better opportunities to officers for excellence and a more planned approach to cadre planning, a proper placement/transfer policy is a vital ingredient. This placement policy has been formulated to address the needs of the Department as well as the Human Resource Development aspects and career management of officers as a whole. The division of the country into five areas, as mentioned above, is given in paragraph 5.3.1, which is as follows:
5.3.1 The country will be divided into five Areas, viz., East, West, North, South and Central.
The region under the control of a Cadre Controlling Chief Commissioner of Income Tax, hereinafter referred to as Region, will be placed under the five Areas as under:-
NORTH - NWR, DELHI, LUCKNOW, KANPUR, JAIPUR EAST - KOLKATA, BHUBANESHWAR, GUWAHATI WEST - PUNE, MUMBAI, NAGPUR SOUTH - HYDERABAD, COCHIN, CHENNAI, BANGALORE CENTRAL - PATNA, BHOPAL, AHMEDABAD The paragraphs 5.3.2 to 5.3.7 of the transfer policy are extracted below:
5.3.2 A total posting period of 16 years in a CCIT (CCA) Region shall be counted as a `cycle. However, in Mumbai and Delhi CCIT (CCA) Regions, since there are no Class `B and Class `C stations, one cycle will be of 8 years.
5.3.3 An officer shall not serve for more than one cycle in a CCIT (CCA) Region during his entire service up to and including the rank of Commissioner.
Illustration 1. An officer shall not serve for more than 16 years in CCIT (CCA) Pune Region.
Illustration 2. An officer shall not serve for more than 8 years in CCIT (CCA) Mumbai Region.
5.3.4 An officer shall be posted to another CCIT (CCA) region after he has completed a cycle of posting in a CCIT (CCA) Region.
5.3.5. The maximum tenure of a Class `A station in a `cycle will be 8 years and the remaining period will be spent in Class `B and Class `C stations.
Provided that if there is no vacancy in a Class `B or Class `C station in that CCIT (CCA) Region the officer may be posted to a Class `A station in that CCIT (CCA) Region.
5.3.6 As far as possible, minimum tenure in Class `B + Class `C stations in each cycle shall be 6 years.
5.3.7 Subject to sub paragraphs 5.3.2 to 5.3.6, the maximum total tenure in Class A stations during service up to and including the rank of Commissioner shall be 18 years.
Provided that the maximum continuous stay in A stations in Departmental posts (including posts exempted as per para 5.4 (i) shall not exceed 14 years.
Provided further that the maximum tenure in the entire career in A stations (combined) shall not exceed 22 years (including exempted posts and all deputation posts outside and/or within the Department). Exceptions to the aforesaid policy are provided in paragraph 5.3.11 quoted below:
5.3.11 Exceptions on compassionate / administrative grounds may be made by the Placement Committee. The policy also provides for transfer on administrative grounds or in public interest in paragraph 10, which has been reproduced below for reference :
10.1 Every officer shall be subject to Rule 13 of IRS Recruitment Rules. Notwithstanding anything contained in this Policy, the Government may, if necessary to do so in public interest, transfer or post any officer to any station or post. No officer has any right to any post or to be posted to a particular Station/Region/Area.
10.2 In between two Annual General Transfer exercises, on administrative exigencies, the Placement Committee may shift a Commissioner from one charge to another charge in the same station. The Placement Committee may also shift officers of the rank of Additional Commissioners and below from one region to another.
10.3 An officer against whom the CVC has recommended initiation of vigilance proceedings should not normally be posted or remain posted at the station where the cause of the vigilance proceedings originated. This restriction will remain in operation till such time as the vigilance matter is not closed. However, such an officer shall under no circumstances be posted to a sensitive charge. Clause 11 of the Transfer Policy reads thus:
11. Petitions against transfers Grievance petitions from Officers against transfer orders will be considered only after the officer joins the new place of posting and applies through proper channel. It is clarified that petitions shall not confer any right whatsoever on the officers to continue at their previous posts in defiance of Government orders.
5. It has been urged on behalf of the Applicant by the learned Senior Advocate that the Respondents have acted on the basis of wrong calculation of stay in Delhi for the purposes of Transfer Policy, because some period spent on posts categorized as exempted posts has also been counted in these calculations. The period spent on such posts does not have to be counted towards stay in a class A station. The period of stay in Delhi on the basis of such calculation would exceed 8 years. However, on the basis of the representation made by the Applicant, the profile was corrected. The corrected profile is placed at Annex A-13 and it shows the period of stay in Class-A station (Delhi) to be 6 years and 8 months, which is short of 8 years by one year and 4 months. It is contended, therefore, that the Applicant could have stayed in Delhi for the period of one year and 4 months more as per the above calculations. During the course of the arguments this fact could not be disputed by the learned counsel for the Respondents.
6. The learned counsel for the Respondents, however, would contend that the Applicant has already handed over charge and has joined at the new place of posting. Therefore, according to the Transfer Policy, he should now complete the prescribed period in Class-B station before he could be transferred again. This argument seems to be fallacious at once. In other identical cases (OA No.1275/2008 with OA No.1276/2008 and OA No.1485/2008 decided on 17.11.2008), the learned counsel for the Respondents had vehemently contended that as prescribed in Clause 11 of the Transfer Policy, quoted in paragraph 4 above, before making representation against his transfer, the officer concerned should first report for duty at the place where he/she is transferred. Now, in the instant case when the Applicant has complied with the provision of Clause 11 of the Transfer Policy, the counsel for Respondents is now seeking to reverse the whole argument. The Respondents cannot act on the policy Head I Win, Tail You Lose. There has to be some consistency in the arguments on behalf of Respondents. The Government cannot plead such opportunistic arguments, as it is also against the employees. Moreover, this approach can lead to a serious discrimination also. The Government may not transfer an officer before the prescribed period of stay in his/her specific category of station has expired and then insist that the employee should complete the prescribed period of stay in the class of the station to which he/she has been transferred. This argument of the learned counsel cannot be accepted. The only inescapable conclusion is that the transfer is in contravention of the Transfer Policy of the Respondents and that they are now clutching at straws to salvage their position. Government, as a model employer, is expected to show grace where a mistake has been made and correct it at the earliest, instead of putting the employees to the trouble of having to approach the Tribunal. In this case we also note that the Applicant has made a detailed representation on 14.08.2008 in which, inter alia, he has also brought to the notice of the Respondents that his wife is suffering from Huntington disease, which is a terminal ailment. The Applicants wife is undergoing treatment in Delhi and in these circumstances the Government was expected to respond to his prayer for canceling his order of transfer posting him to UP (West).
7. On the basis of above discussion, the impugned order of transfer dated 12.06.2008 is quashed and set aside only to the extent the Applicant is concerned. We direct that the Respondents should forthwith post the Applicant back to Delhi for the remaining period of his entitlement for posting to Delhi. No costs.
( L.K. JOSHI ) ( V.K. BALI ) Vice Chairman (A) Chairman sd