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CASE NO.: Special Leave Petition (civil)  20706 of 2006

PETITIONER: Prabir Banerjee

RESPONDENT: Union of India and others

DATE OF JUDGMENT: 05/10/2007

BENCH: Altamas Kabir & D.K.Jain

JUDGMENT: J U D G M E N T

Altamas Kabir,J.

       The petitioner in the instant special leave petition  was one of two petitioners who had filed writ petition  No.3622 of 2005 in the High Court of Madhya Pradesh, Indore  Bench, calling in question the legal propriety of an order  dated 13.9.2005 passed by the Central Administrative  Tribunal, Jabalpur Bench, in O.A.No.6002/2005.  The writ  petitioners had approached the Tribunal for quashing of the  order of transfer by which they were transferred from Indore  to Nagpur.  The challenge to the order of transfer was made  on the ground that inter-zonal transfer was prohibited in  the Department of Central Excise and Customs and hence the  impugned transfer order was void and was liable to be  quashed.

       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.               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 of  the Commissionerates of Bhopal, Indore and Raipur.  On  19.2.1994 the Department of Revenue in the Ministry of  Finance, Government of India, issued a circular addressed to  amongst others all the Chief Commissioner of Central Excise  containing certain instructions regarding the discontinuance  of inter-Commissionerate transfers.  Since much of the  submissions made in this matter revolve around the said  circular, the same is reproduced hereinbelow:

\023F.No. A 22015/03/2004 AD IIIA GOVERNMENT OF INDIA MINISTRY OF FINANCE DEPARTMENT OF REVENUE

New Delhi, the 19th February 2004

To All  Chief  Commissioner   of Customs,

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All Chief Commissioner of Central Excise, All Commissioner of Customs, All Commissioner of Central Excise, All Directors General/ Directors Commissioner, Central Bureau of Narcotics, Gwalior  (all by name)

Subject :       Inter Commissionerate Transfers \026 Issuance of Instructions \026 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 \021B\022, \021C\022 and  \021D\022 employees were taking place on  compassionate grounds.  These powers had  been delegated to the Head of Departments  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 of all  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 made 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, if any.  Where ever required,  necessary amendments in recruitment rules  are under approval and shall be issued  subsequently.  

               This issues with the approval of the  Board

               Receipt of these instructions may  please be acknowledged.

Yours faithfully,

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Sd/- (S.K. Thakur) Under  Secretary to the Govt. of India\024

       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  supersession  of all 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 of 3  years subject to the approval of the Transfer and  Transferee  Cadre Controlling authorities. As indicated  hereinbefore the petitioner was promoted to the post of  Superintendent in 2003, which is a \021B\022 category post.  

       The said circular was subsequently amended by another  Circular issued by the Department of Revenue on 9th March,  2004 which is reproduced hereinbelow:

\023F.No. A 22015/03/2004 AD IIIA GOVERNMENT OF INDIA MINISTRY OF FINANCE DEPARTMENT OF REVENUE

New Delhi, the 9th March, 2004 To All  Chief  Commissioner   of Customs, All Chief Commissioner of Central Excise, All Commissioner of Customs, All Commissioner of Central Excise, All Directors General/ Directors Commissioner, Central Bureau of Narcotics, Gwalior  (all by name)

Subject :       Inter Commissionerate Transfers \026                         Issuance of Instructions \026        clarification    regarding.

Sir/ Madam,

               I am directed to refer to this office  circular of even 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  Commissionerates having common cadre where  there is no loss of seniority involved, may  be allowed  to continue as hitherto.

               This issues with the approval of the  Board

Yours faithfully,

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Sd/- (S.K. Thakur) Under  Secretary to the Govt. of India\024

       By virtue of said amendment it was clarified that  inter-Commissionerate transfers amongst the  Commissionerates having common cadre, where there was no  loss of seniority, could be allowed to continue as before.

       Pursuant to the promulgation of the aforesaid  circulars an order, being Office Order No.1/2005 dated  31.3.1995 was issued by the Chief Commissioner of Customs  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-Commissionerate  transfers were permitted the same did not permit the  authorities to also effect inter-zonal transfers which had  been prohibited.  

       After considering the submissions made on behalf of  the respective parties and the various circulars issued by  the Central  Board of Excise and Customs, and in particular  the Circular/instructions  dated 10th September, 1990, which  provides for common cadre of Superintendents 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.

       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.

       During the hearing of the writ petition the main  submission made on behalf of the writ petitioner was that  transfer from one zone to another zone was prohibited by  the Department itself and the impugned transfer order being  in violation of the declared policy of the Department was  liable to be quashed.  On the other hand, the order of the  Tribunal was strongly supported by the respondents on the  ground that inter-zonal transfer was permitted, inasmuch  as, constitution of a zone was for the purpose of revenue  and  had nothing to do with transfer which is an incident  of service.   It was also urged on behalf of the  respondents that even if the petitioners were transferred  to the Nagpur zone their seniority would not be affected in  any way.   

     Having regard to the submissions made the High Court  observed that the grievance of the petitioners  was based  on the apprehension that their seniority would be affected.   However, relying on the decision of this Court in the case  of  Shilpi Bose  vs. State of Bihar  (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 of the system did not  warrant any interference under Articles 226 and 227 of the  Constitution of India. Several other decisions on the same

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issue were also referred to and the writ petition was  disposed of with leave to the petitioners to submit a  representation to the competent authority within a period  of four weeks from the date of the order, with a further  direction that the said representation was to be disposed  of within a period of four weeks from the date of receipt  of the same.  

     Since the main contention of the writ petitioners was  that inter-zonal transfers were not permitted by virtue of  the policy of the Central Board of Excise and Customs, the  High Court, instead of adverting to the said issue went  into a separate issue regarding transfer in Central  Government services wherein transfer is an incident of  service and  wrongly permitted the petitioners to file  representation before the Department against the order of  transfer under challenge.              Aggrieved by the order of the High Court one of the  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.   

     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 Court failed to appreciate the  main plank of challenge made on behalf of the 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 of the   policy of transfer.               It was urged that instead of deciding  the aforesaid  question raised on behalf of the writ petitioners, the High  Court went into a broader issue regarding transfer being an  incident of service under the Central Service Rules.  Mr.  Rohtagi also urged that in the absence of any Rules framed  by the Central Board of Excise and Customs the instructions  issued by the Board from time to time would have to be  applied in respect of the employees of the Department.   Conceding that transfer was an incident of service in the  Central services, Mr. Rohtagi urged that the said principle  would not apply in this case in view of the existence of  definite instructions issued by the Board in this regard.                It was urged that the High Court appears to have  missed this aspect of the matter and had relied solely on  the decision of this Court in the case of Shilpi (supra)  and certain other decisions namely (i) S.B.I. vs. Anjan   2001 (5) SCC 508; (ii) National Hydro Electric Power  Corporation Ltd. vs. Shri Bhagwan (2001 (8) SCC 574); (iii)  Union of India vs. Janardan Debnath (2004 (4) SCC 245);   (iv) State of U.P. 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 of transfer.              Appearing for the respondents, Mr. B. Dutta, learned  Additional Solicitor General, took us to the  various  circulars issued by the Department  of Revenue in the  Ministry of Finance, Government of India, which had also  been referred to by Mr. Rohtagi, relating to inter- Commissionerate transfers of Grade B, C and D employees. In  support of his contention that inter-zonal transfers in the

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Department of Customs and Central Excise were permissible,  the learned Additional Solicitor General urged that  services under the said Department was an all India service   wherein transfer was an incident of service to which the  petitioner could not legitimately object.  The learned  Additional Solicitor General also referred to the  communication from the Central Board of Excise and Customs  to the Chief Commissioner of Central Excise  and the Chief  Commissioner  of Customs, as also Central Excise and  Customs, dated 16.1.2003, whereby it was declared by the  Board that all the powers being exercised by the respective  Commissioners as the Cadre Controlling Authority would  thenceforth be exercised by the respective Chief  Commissioners.  In addition to the above, the learned  Additional Solicitor General referred to the directions of  the Board in its communication dated 24.8.04 whereby it was  indicated that pending decision on the demand for  bifurcation of group \021B\022 and \021C\022 cadres relating to Nagpur  and Indore Collectorates it had been decided that cadre  control of the said two Collectorates would be distributed  between the two Collectors of Nagpur zone and Indore zone.   The Collector of Central Excise of the Nagpur zone was made  the Cadre Controlling Authority of Group \021B\022 and \021C\022  employees belonging to the Ministerial cadre whereas the  Collector of Central Excise, Indore, was made the Cadre  Controlling Authority in respect of Group \021B\022 and \021C\022  officers in the executive cadres.  The learned Additional  Solicitor General added that of the officers posts in the  different Commissionerates the post of Superintendent was a  Group \021B\022 post in the executive cadre and in respect of the  two aforesaid Collectorates the Collector of Central  Excise, Indore, became the Cadre Controlling Authority of  such employees in the aforesaid Collectorates.                Referring to the counter affidavit filed on behalf of  the respondents, and in particular para 3 (V), he submitted  that by virtue of notification No.14/2002 Central Excise  dated 8.3.2002, as amended, issued under Rule 3(2) of the  Central Excise Rules, 2002, the statutory jurisdiction of  the Chief Commissioner under the provisions of the Central  Excise Act, 1944 and the Rules framed thereunder have been  defined.  He urged that the statutory jurisdiction was  distinct from the jurisdiction of the Chief Commissioner as  Cadre Controlling Authority which had been defined  separately by way of administrative instructions.  While  the statutory jurisdiction of the Chief Commissioner,  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 of Grade \021B\022  and \021C\022 of four Commissionerates, namely, Bhopal, Indore,  Raipur and Nagpur.  It was also submitted that since the  jurisdiction of a Chief Commissioner 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 of such statutory rules, as had  been done in the instant case.                It was submitted that the High Court had not committed  any error in relying on the principle that in Central  Government Service transfer was an incident of service and  an employee was not entitled to question the impugned order  of transfer on such ground.  Further, since the transfer  order had been issued by the Cadre Controlling Authority,

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namely, the Chief Commissioner of Central Excise, Bhopal,  who  had been vested by the Board with authority to act as  the Cadre Controlling Authority in respect of the three  Commissionerates within the Bhopal zone and the Nagpur  Commissionerate under the Nagpur zone, such order was made  validly and could not be interfered with on the ground of  lack of jurisdiction.              Having considered the submissions made on behalf of  the respect parties we are inclined to agree with the stand  taken by the respondents that while transfer is an incident  of service under the Central Service Rules, the petitioner  has no cause to complain in respect of the 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.              Although, both the parties have relied upon the  circular dated 19.2.2004 and 9.3.2004 issued by the  Department of Revenue, in the Ministry of Finance,  Government of India, the said two circulars have little or  no relevance to the facts at issue in the instant case. The  circular dated 19.2.2004 merely indicates that inter- Commissionerate transfers of Group \021B\022, \021C\022 and \021D\022  employees were taking place on compassionate grounds which  had caused certain administrative difficulties resulting in  protracted litigation which caused the Board to review the  situation in detail.  It is in that context that it was  further indicated that in supersession of all previous  instructions issued on the subject in the past from  thenceforth no inter-Commissionerate transfer would be  allowed for any Group \021B\022, \021C\022 and \021D\022 employee.  Instead,  in exceptional circumstances depending on merits of each  case, such transfers would be allowed on deputation basis  for a period of 3 years, subject to the approval of the  transferring and transferee Cadre Controlling Authorities.   The other circular dated 9.3.2004 merely clarified the  question of inter-Commissionerate transfers within the same  zone. In this context it was clarified that inter- Commissionerate transfers amongst the Commissionerates  having common cadre, where there was no loss of seniority  involved, such a practice would be allowed to continue.              In our view, neither of the 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  of a 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.              No doubt transfer is an incident of service 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 of the Central  Board of Excise and Customs in its communication dated  24.8.1984 by which pending decision on the demand for  bifurcation of Group \021B\022, and \021C\022 cadres relating to Nagpur  and Indore cadres the Board took a decision that cadre  control of the said two Collectorates would be distributed

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between the two Collectors as indicated in the said  communication.  As mentioned hereinabove, while the  Collector of Central Excise, Nagpur, was made the Cadre  Controlling Authority of Group \021B\022 and \021C\022 Ministerial  Cadres, the Collector of Central Excise, Indore was made  the Cadre Controlling Authority of executive cadres of  Group \021B\022 and \021C\022.   We are alive to the fact that the  decision taken by the Board was an administrative decision,  but in the absence of any 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/Customs in a Commissionerate would be the Cadre  Controlling Authority up to Group \021B\022 level staff, and its  functions would include monitoring the implementation of  the Board\022s instructions with regard to the transfers  and  equitable distribution of man-power and material resources  between the Commissionerates/zones.              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 of executive cadres  belonging to Group \021B\022 and \021C\022 of the Nagpur and Indore  Collectorates, which empowers the Chief Commissioner of the  Bhopal zone to exercise control over the cadre both in  respect of the three Commissionerates comprising the Bhopal  zone as also the Commissionerate of Nagpur falling within  the Nagpur zone.  It has neither been pleaded nor has it  been shown to us that the decision of the Board as  contained in the said circular of 24.8.1984 has since been  rescinded or altered and that the Chief Commissioner of the  Bhopal zone is no longer the Cadre Controlling Authority of  the Nagpur Commissionerate.              In the aforesaid 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, we  are not inclined to interfere with the judgment and order  of the High Court disposing of the writ petition.              There is also another aspect of the 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  of the transfer order to the Chairman of the 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.               For the aforesaid reasons, we dismiss the Special  Leave Petition, but, in the facts of the case, without any  order as to costs.