PRABIR BANERJEE v. UNION OF INDIA AND ORS

Citation: [2007] 10 S.C.R. 694

Court: Supreme Court of India

Bench: ALTAMAS KABIR, D.K. JAIN

Case summary

PRABIR BANERJEE v. UNION OF INDIA AND ORS.pdf

Judgment text

PRABIR BANERJEE ~ 1 v. UNION OF INDIA AND ORS OCTOBER 5, 2007 [ALTAMAS KABIR AND D. K. JAIN, JJ. ] ':'_\. Service Law: Central Excise Rules, 2002; r. 3(2) Circulars dated 16. 1. 2003, 19. 2. 2004 and 9. 3. 2004 issued by the Central Board ofExcise and Customs: Transfer-Issuance of Transfer order by Cadre Controlling Authority transferringpetitioner and othersfrom one zone to another- Applicationfiled against the transfer order was dismissed by Central Administrative Tribunal-Challenge to-Disposed ofby High Court with leave to petitioners to submit a representation to the competent authority-On appeal, held: Petitioner was transferredfrom one zone to another in terms ofthe transfer order passed by the competent authority underpowers vested in him by the Board in terms ofCircular dated 16. 1. 2003-Neither ofCirculars dated 19. 2. 04 and 9. 3.

04, as relied on by both the parties, have any bearing to the main issue- Transfer is' an incident ofservice in All India Service-Controlling >---authority was competent to transfer the petitioner under the Central Service Rules-Though, the decision as conveyed in terms ofthe Circulars was an administrative decision but in the absence ofany direct rule pertaining to transfer, the administrative instructions would have to be implemented-Petitioner has neither pleaded nor shown that the decision ofthe Board in authorizing Nagpur Commissionerate . 4, as Cadre Controlling Authority has since been rescinded or altered- In such circumstances, it is not appropriate to interfere with the judgment/order ofthe High Court in exercise ofwrit jurisdiction- Constitution ofIndia, 1950-Articles 226 and 227. Petitionerwas working as Superintendent, a Group 'B' post in the Central Excise Department, Bhopal. On 19. 2.

2004, the Department of Revenue, issued a circular discontinuing inter- Commissionerate transfers ofGroup B, C and D employees. Even with regard to the cases where requisitions were made on extreme compassionate grounds such transfers could be allowed on deputation basis for a period of3 years only subject to the approval ,. of the Transferor and Transferee Cadre Controlling authorities. Subsequently, another Circular dated March 9, 2004 was issued by the Department clarifying that inter-Commissionerate transfers amongst the Commissionerates having common cadre, where there was no loss ofseniority, could be allowed to continue as before. Pursuant to the promulgation ofthe aforesaid circulars the petitioner and others were transferred from the Indore Commissionerate to the Nagpur Commissionerate.

The order was challenged by the petitioner and others before the Central Administrative Tribunal on the ground that inter-zonal transfers were not permitted in terms of the Circular dated March 9, 2004. The application was dismissed by the Tribunal. Aggrieved petitioner filed a writ petition before the High Court. The petition was disposed ofby High Court holding that transfers made in administrative exigencies or in public interest or for smooth functioning ofthe system did notwarrant any interference under Articles 226 and 227 ofthe Constitution oflndia and granted leave to the petitioners to submit a representation to the competent authority. Hence the present Special Leave Petition filed by one of the petitioners.

Petitioner-employee contended that both the Tribunal as well as the High Court failed to appreciate the main plank ofchallenge made on behalfofthe employees that inter-zonal transfers have been prohibited and since the Nagpur zone was a separate zone from the Bhopal zone the transfer order had been made in violation of the policy oftransfer; that instead ofdeciding the main issue raised on behalfof the employees, the High Court went into a broader issue regarding transfer being an incident ofservice under the Central Service Rules; that the said principle would not apply in this case in ·~ view ofthe existence ofdefinite instructions issued by the Board in . _,( ' this regard; that the High Court appears to have missed this aspect ofthe matter, had relied solely on several decisions ofthis Court in arriving at the conclusion that the employee would only be entitled to make a representation to the competent authority against the orderoftransfer.

Additional Solicitor General on behalfofrespondents submitted that services under the Department of Revenue was an All India Service wherein transfer was an incident of service to which the petitioner could not legitimately object; that pending decision on the demand for bifurcation of group 'B' and 'C' cadres relating to Nagpur and Indore Collectorates it had been decided that cadre control ofthe said two Collectorates would be distributed between the two Collectors ofNagpur zone and Indore zone; that the Collector of Central Excise of the Nagpur zone was made the Cadre Controlling Authority ofGroup 'B' and 'C' employees belonging to the Ministerial cadre whereas the Collector of Central Excise, Indore, was made the Cadre Controlling Authority in respect of Group 'B' and 'C' officers in the executive cadres; thatthe statutory Jurisdiction is distinct from the jurisdiction ofthe ChiefCommis,sioner as Cadre Controlling Authority which had been defined separately by way ofadministrative instru.

ctions.

While the statutory jurisdiction of the ChiefCommissioner, Bhopal under the Central Excise Act extended to the three Commissionerates of Bhopal, Indore and Raipur, the Chief Commissioner, Bhopal, was designated as the Cadre Controlling Authority for the combined cadre ofGrade 'B' and 'C' offour Commissionerates; that since the jurisdiction of a ChiefCommissioner as a Cadre Controlling Authority has not been defined or circumscribed by any notification issued under Rule 3(2), administrative instructions issued from time to time would have to be followed in the absence ofsuch statutory rules, as had been done in the instant case; that the High Court had not committed any error in relying on the principle that in Central Government Service transfer was an incident ofservice and an employee was not enti~led to question the impugned order oftransfer on such ground; and that > since the transfer order had been issued by the Cadre Controlling Authority, such order was made validly and could not be interfered with on the ground oflack ofjurisdiction.

Dismissing the Special Leave Petition, the Court HELD: 1. 1. While transfer is an incident ofservice under the Central Service Rules, the petitioner has no cause to complain in .. __-· respect ofthe transfer order by which he was transferred from the Bhopal zone to the Nagpur zone, as the same had been passed by the Chief Commissioner of Central Excise, Bhopal zone, under powers vested in him by the Board by its Circular dated 16. 1. 2003. [Para 20] [706-H; 707-AJ 1. 2. Neither of the two circulars issued by the Central Board of Excise and Customs have any bearing and/or relevance to the issues raised in the instant case where the central question is whether the Chief Commissioner of the Bhopal Commissionerate was competent to transfer the petitioner to a Commissionerate of different zone, namely, Nagpur, except to the extent of indicating that inter-Commissionerate transfers between Commissionerates having a common cadre would be allowed to continue. [Para22] [707-F-G] 2. 1.

This Court is alive to the fact that the decision taken by the Board was an administrative decision, but in the absence ofany direct Rule relating to transfer between two Collectorates under the Central Board of Excise and Customs, the said administrative instruction would have to be implemented insofar as inter- Collectorate transfers between the Nagpur and Indore Cadre was concerned. In fact, by subsequent circular dated 16. 1. 2003 the Board further declared that the Chief Commissioner of Central Excise/ :1--- Customs in a Commissionerate would be the Cadre Controlling Authority up to Group 'B' level staff, and its functions would include monitoring the implementation of the Board's instructions with regard to the transfers and equitable distribution ofman-power and material resources between the Commissionerates/zones. [Para 23] [708-C-E] 2. 2. By virtue ofthe Circular dated 24. 8.

2004 the Collector of ~ Central Excise, Indore, had been made the Cadre Controlling Authority ofexecutive cadres belonging to Group 'B' and 'C' of the Nagpur and Indore Collectorates, which empowers the Chief Commissioner ofthe Bhopal zone to exercise control over the cadre both in respect of the three Commissionerates comprising the Bhopal zone as also the Commissionerate ofNagpur falling within the Nagpur zone. It has neither been pleaded nor has it been shown .. _.. before this Court that the decision ofthe Board as contained in the said circular of24. 8. 1984 has since been rescinded or altered and that the Chief Commissioner of the Bhopal zone is no longer the Cadre Controlling Authority ofthe Nagpur Commissionerate.

In such circumstances, although the High Court has proceeded mainly on the basis that in the Central Services transfer is an incident of service and has not really dealt with the various circulars on the subject, this Court is not inclined to interfere with the judgment and order ofthe High Court disposing ofthe writ petition. >--· [Paras 24 and 25] (708-F-H; 709-A, B] CIVIL APPELLATE JURISDICTION : Special Leave Petition (C) No. 20706 of 2006. From the Judgment and Order dated 14. 09. 2006 ofthe High Court of Madhya Pradesh, Bench at Indore in W. P. No. 3622 of2005. Dr. Abhishek M. Singhvi and Mukul Rohatgi, Sanjeev Sachdeva >-and Amit Bhandari for the Appellant. B. Datta, ASG. , T. V Ratnam and B. Krishna Prasad for the Respondents. The Judgment ofthe Court was delivered by ALTAMAS KABIR, J. 1. The petitioner in the instant special leave petition was one oftwo petitioners who had filed writ petition No.

3622 of2005 in the High Court ofMadhya Pradesh, Indore Bench, calling in question the legal propriety ofan order dated 13. 9. 2005 passed by the Central Administrative Tribunal, Jabalpur Bench, in O. A. No. 6002/2005. / } PRABIRBANERJEE v. UNION OF INDIA 699 [ALTAMASKABIR,J. ] >- The writ petitioners had approached the Tribunal for quashing ofthe order oftransfer by which they were transferred from Indore to Nagpur. The challenge to the order oftransfer was made on the ground that inter-zonal transfer was prohibited in the Department ofCentral Excise and Customs and hence the impugned transfer order was void and was liable to be quashed. 2. In order to appreciate the case made out by the writ petitioners . _:· before the High Court it will be necessary to set out a few facts relating to the case. 3. Appearing for the petitioner Prabir Banerjee, Mr.

Mukul Rohtagi, learned Senior Advocate submitted that the petitioner had been appointed as Inspector, Central Excise, in 1982; Subsequently, in 2003 he was promoted to the post of Superintendent under the Bhopal zone which comprised ofthe Commissionerates ofBhopal, Indore and Raipur. On 19. 2. 1994 the Department of Revenue in the Ministry of Finance, Government oflndia, issued a circular addressed to amongst others all the ChiefCommissioner ofCentral Excise containing certain instructions regarding the discontinuance ofinter-Commissionerate transfers. Since much ofthe submissions made in this matter revolve around the said circular, the same is reproduced hereinbelow: "F. No.

A 22015/03/2004 AD IIIA GOVERNMENT OF INDIA MINISTRY OF FJNANCE DEPARTMENT OF REVENUE New Delhi, the 19th February 2004 To All ChiefCommissioner ofCustoms, All ChiefCommissioner ofCentral Excise, All Commissioner ofCustoms, All Commissioner ofCentral Excise, All Directors General/ Directors Commissioner, Central Bureau ofNarcotics, Gwalior -\ (all by name). ·Subject : Inter Commissionerate Transfers -Issuance of Instructions -regarding their discontinuance etc. Sir/ Madam, It would be recalled that hither to inter-Commissionerate transfer (i. e. transfer from one cadre controlling authority to another) of Group 'B', 'C' and 'D' employees were taking place on compassionate grounds. These powers had been delegated to the Head ofDepartments subject to the conditions laid down in F. No. A22015/34/8-0-Ad III B dated 20. 5 . 1980.

Since inter- Commissionerate transfers have caused certain administrative difficulties resulting in protracted litigation, the matter has been reviewed by the Board in detail. Accordingly, in supersession ofall the previous instructions issued on the subject in the past, it has been decided that hence forth no inter-Commissionerate transfer shall be allowed for any Group B, C and D employee. Instead, in exceptional circumstances depending upon the merits of each case where it is considered necessary to accept such requests on extreme compassionate grounds, such transfers shall be allowed on deputation basis for a period three years subject to the approval of the transfer and transferee cadre controlling authorities. Further extension of depuration period can be ma\ie up to one year by the Commissioner and for a further period of one year by Chief Commissioners concerned on mutually agreed basis.

Such transfers shall be with the specific condition that no deputation allowance shall be admissible for deputation period including extended period, ifany. Where ever required, necessary amendments in recruitment rules are under approval and shall be issued subsequently. This issues with the approval ofthe Board Receipt ofthese instructions may please be acknowledged. Yours faithfully, Sd/- (S. K. Thakur) Under Secretary to the Govt. oflndia" 4. From the said circular it will be seen that the Board after reviewing ~:· the existing policy relating to inter-Commissionerate transfers took a decision whereby in supersessiori. ofall the provisions /instructions issued on the subject in the past, no inter-Commissionerate transfer would thenceforth be allowed for any Grade B, C and D employee.

Even with regard to the cases where requisitions were made on extreme compassionate grounds such transfers could be allowed on deputation basis for a period of3 years subject to the approval ofthe Transfer and Transferee Cadre Controlling authorities. As indicated hereinbefore the petitioner was promoted to the post of Superintendent in 2003, which is a 'B' category post. 5. The said circular was subsequently amepded by another Circular issued by the Department of Revenue on 9th March, 2004 which is reproduced hereinbelow: "F. No. A 22015/03/2004 AD IIIA GOVERNMENT OF INDIA MINISTRY OF FINANCE DEPARTMENT OF REVENUE New Delhi, the 9th March, 2004 To All ChiefCommissioner ofCustoms, All ChiefCommissioner ofCentral Excise, All Commissioner ofCustoms, All Commissioner ofCentral Excise, All Directors General/Directors Commissioner, Central Bureau ofNarcotics, ~ ·-- Gwalior ~ (all by name) Subject : Inter Commissionerate Transfers-Issuance of Instructions-clarification regarding.

Sir/ Madam, I am directed to refer to this office circular ofeven number dated 19. 2. 2004 on the subject cited above and to say that some references have been received seeking clarification regarding inter- Commissionerate transfers within the same zone. It is therefore, clarified that inter-Commissionerate transfers amongst the Commissione,rates having common cadre where there is no loss ofseniority involved, may be allowed to continue as hitherto. This issues with the approval ofthe Board Yours faithfully, Sd/- (S. K. Thakur) Under Secretary to the Govt. oflndia" 6. By virtue of said amendment it was clarified that inter- Commissionerate transfers amongst the Commissionerates having common cadre, where there was no loss ofseniority, could be allowed to continue p as before. 7. Pursuant to the promulgation ofthe aforesaid circulars an order, being Office Order No. 112005 dated 31. 3. 1995 was issued by the Chief Commissioner ofCustoms and Central Excise, M. P.

and Chhattisgarh States, whereby along with 55 other officers the petitioner was transferred from the Indore Commissionerate to the Nagpur Commissionerate. It is this order which was challenged by the petitioner and others before the Central Administrative Tribunal on the ground that although inter- Commiss! onerate transfers were permitted the same did not permit the authorities to also effect inter-zonal transfers which had been prohibited. PRABIR BANERJEEv. UNION OF INDIA 703 8. After considering the submissions made on behalfofthe respective parties and the various circulars issued by the Central Board ofExcise and Customs, and in particular the Circular/instructions dated 10th September, 1990, which provides for common cadre ofSuperintendents of the Bhopal and Nagpur Commissionerate under the Chief Commissioner, Bhopal, as the Cadre Controlling Authority, the Tribunal dismissed the application filed by the petitioner herein. 9.

As mentioned hereinabove the said order of the Central Administrative Tribunal was impugned by the petitioner herein along with one Mahender Singh by filing Writ Petition No. 3622/05 before the High Court of Madhya Pradesh, Indore Bench. 10. During the hearing ofthe writ petition the main submission made on behalf ofthe writ petitioner was that transfer from one zone to another zone was prohibited by the Department itselfand the impugned transfer order being in violation ofthe declared policy ofthe Department was liable to be quashed. On the other hand, the order ofthe Tribunal was strongly supported by the respondents on the ground that inter-zonal transfer was permitted, inasmuch as, constitution ofa zone was for the purpose of revenue and had nothing to do with transfer which is an incidentofservice. It was also urged on behalfofthe respondents that even ifthe petitioners were transferred to the Nagpur zone their seniority would not be affected many way. ) ---1 11.

Having regard to the submissions made the High Court observed that the grievance ofthe petitioners was based on the apprehension that their seniority would be affected. However, relying on the decisi~n ofthis Court in the case of Shilpi Bose v. State ofBihar AIR (1991) SC 532, the High Court ultimately came to the conclusion that transfers made in administrative exigencies or in public interest or for smooth functioning ofthe system did not warrant any interference under Articles 226 and 227 ofthe Constitution ofIndia. Several other decisions on the same issue were also referred to and the writ petition was disposed ofwith leave to the petitioners to submit a representation to the competent authority within a period offour weeks from the date ofthe order, with a further direction that the said representation was to be disposed ofwithin a period offour weeks from the date ofreceipt of the same. 12.

Since the main contention ofthe writ petitioners was that interzonal transfers were not permitted by virtue ofthe policy ofthe Central Board ofExcise and Customs, the High Court, instead ofadverting to the said issue went into a separate issue regarding transfer in Central Government services wherein transfer is an incident ofservice and wrongly permitted the petitioners to file representation before the Department against the order oftransfer under challenge. 13. Aggrieved by the order ofthe High Court one ofthe petitioners, namely, Prabir Banerjee, has filed this special leave petition on the same grounds as urged before the Tribunal and reiterated before the High Court. 14. Appearing in support of the special leave petition, Mr. Mukul Rohtagi, Senior Advocate, appearing with Dr. Abhishek M.

Singhvi, Senior Advocate, urged that both the Tribunal as well as the High Courtfailed to appreciate the main plank ofchallenge made on behalfofthe petitioners, namely, that inter-zonal transfers have been prohibited and since the Nagpur zone was a separate zone from the Bhopal zone the transfer order had been made in violation ofthe policy oftransfer. 15. It was urged that instead ofdeciding the aforesaid question raised on behalfofthe writ petitioners, the High Court went into a broader issue regarding transfer being an incident ofservice under the Central Service Rules. Mr. Rohtagi also urged that in the absence ofany Rules framed by the Central Board ofExcise and Customs the instructions issued by the Board from time to time would have to be applied in respect ofthe employees ofthe Department. Conceding that transfer was an incident ofservice in the Central services, Mr.

Rohtagi urged that the said principle would not apply in this case in view ofthe existence ofdefinite instructions issued by the Board in this regard. G' 16. It was urged that the High Court appears to have missed this aspect ofthe matter and had relied solely on the decision ofthis Court in the case of Shilpi (supra) and certain other decisions namely (i) SB. I. vs. Anjan, (2001] 5 SCC 508; (ii) National Hydro Electric Power Corporation Ltd. v. Shri Bhagwan, [2001] 8 SCC 574; (iii) Union of PRABIRBANERJEE v. UNION OF INDIA 705 )- India v. Janardan Debnath, [2004] 4 SCC 245; (iv) State ofUP. vs. Siya Ram, [2004] 7 SCC 405, in arriving at the conclusion that the writ petitioner would only be entitled to make a representation to the competent authority regarding the order oftransfer. 17. Appearing for the respondents, Mr. B. Dutta, learned Additional Solicitor General, took us to the variou ..

1 it was clarified that inter-Commissionerate transfers amongst the Cornmissionerates having common cadre, where there was no loss of seniority involved, such a practice would be allowed to continue. 22. In our view, neither ofthe two circulars have any bearing and/ or relevance to the issues raised in the instant case where the central question is whether the Chief Commissioner of the Bhopal Commissionerate was competent to transfer the petitioner to a Commissionerate ofa different zone, namely, Nagpur, except to the extent of indicating that inter-Commissionerate transfers between Commissionerates having a common cadre would be allowed to continue. 23. No doubt transfer is an incident ofservice in an All India service and under the Central Service Rules the Controlling Authority was . \__ competent to transfer the petitioner to any place in India, where it considered expedient to do so.

But apart from the above, we also have to take into consideration the decision ofthe Central Board ofExcise and Customs in its communication dated 24. 8. 1984 by which pending decision on the demand for bifurcation ofGroup 'B', and 'C' cadres relating to Nagpur and Indore cadres the Board took a decision that cadre control of the said two Coilectorates would be distributed between the two Collectors as indicated in the said communication. As mentioned . --l:hereinabove, while the Collector of Central Excise, Nagpur, was made the Cadre Controlling Authority ofGroup 'B' and 'C' Ministerial Cadres, the Collector ofCentral Excise, Indore was made the Cadre Controlling Authority ofexecutive cadres ofGroup 'B' and 'C'.

We are alive to the fact that the decision taken by the Board was an administrative decision, but in the absence ofany direct Rule relating to transfer between two ·collectorates under the Central Board ofExcise and Customs, the said administrative instruction would have to be implemented insofar as inter- Collectorate transfers between the Nagpur and Indore Cadre was concerned. In fact, by subsequent circular dated 16. 1. 2003 the Board further declared that the ChiefCommissioner ofCentralExcise/Customs in a Commissionerate would be the Cadre Controlling Authority up to Group 'B' level staff, and its functions v. ;:ould include monitoring the implementation ofthe Board's instructions with regard to the transfers and equitable distribution ofman-power and material resources between the Commissionerates/zones. 24. The learned Additional Solicitor General had strenuously urged that by virtue of the communication dated 24. 8.

2004 the Collector of Central Excise, Indore, had been made the Cadre Controlling Authority ofexecutive cadres belonging to Group 'B' and 'C' of the Nagpur and Indore Collectorates, which empowers the Chief Commissioner of the Bhopal zone to exercise control over the cadre both in respect ofthe three Commissionerates comprising the Bhopal· zone as also the x Commissionerate ofNagpur falling within the Nagpur zone. It has neither been pleaded nor has it been shOwn to us that the decision ofthe Bo. ard as contained in the said circular of24. 8. 1984 has since been rescinded or altered and that the ChiefCommissioner ofthe Bhopal zone is no longer PRABIRBANERJEEv. UNION OF INDIA 709 the Cadre Controlling Authority ofthe Nagpur Commissionerate. 25.

In the aforesaid circumstances, although the High Court has proceeded mainly on the basis thatinJhe Central Services transfer is an incident ofservice and has not really dealt with the various circulars on the subject, we are not inclined to interfere with the judgment and order ofthe High Court disposing ofthe writ petition. 26. There is also another aspect ofthe matter, namely, that pursuant to the leave granted by the High Court to make a representation to the competent authority, the petitioner herein made a. representation for reconsideration ofthe transfer order to the Chairman ofthe Central Board · of Excise and Customs on 17. 4. 05. In other words, the petitioner had submitted to the directions given in the impugned judgment, thereby, disentitling him to question the decision rendered by the High Court. 27. For the aforesaid reasons, we dismiss the Special Leave Petition, but, in the facts of the case, without any order as to costs. --< ' S. K. S. S. L. P. dismissed. --. ( ..

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