NDLI: Prabir Banerjee Vs. Union of India and Ors

Prabir Banerjee Vs. Union of India and Ors

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Prabir Banerjee Vs. Union of India and Ors

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Central Excise Rules 2002
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Case Type	Special Leave Petition
Court	Supreme Court of India
Disposal Nature	Petition Dismissed
Headnote	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 of Excise and Customs:Transfer - Issuance of Transfer order by Cadre Controlling Authority transferring petitioner and others from one zone to another - Application filed against the transfer order was dismissed by Central Administrative Tribunal - Challenge to - Disposed of by High Court with leave to petitioners to submit a representation to the competent authority - On appeal, held: Petitioner was transferred from one zone to another in terms of the transfer order passed by the competent authority under powers vested in him by the Board in terms of Circular dated 16.1.2003 - Neither of Circulars 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 of service in All India Service - Controlling authority was competent to transfer the petitioner under the Central Service Rules - Though, the decision as conveyed in terms of the Circulars was an administrative decision but in the absence of any direct rule pertaining to transfer, the administrative instructions would have to be implemented - Petitioner has neither pleaded nor shown that the decision of the Board in authorizing Nagpur Commissionerate as Cadre Controlling Authority has since been rescinded or altered - In such circumstances, it is not appropriate to interfere with the judgment/order of the High Court in exercise of writ jurisdiction - Constitution of India, 1950 - Articles 226 and 227.Petitioner was 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 of Group 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 of 3 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 of seniority, could be allowed to continue as before. Pursuant to the promulgation of the 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 of by High Court holding 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 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 of challenge made on behalf of the 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 of transfer; that instead of deciding the main issue raised on behalf of the employees, the High Court went into a broader issue regarding transfer being an incident of service under the Central Service Rules; 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; that the High Court appears to have missed this aspect of the matter, had relied solely on several decisions of this Court in arriving at the conclusion that the employee would only be entitled to make a representation to the competent authority against the order of transfer.Additional Solicitor General on behalf ofrespondents 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 of the said two Collectorates would be distributed between the two Collectors of Nagpur zone and Indore zone; that the Collector of Central Excise of the Nagpur zone was made the Cadre Controlling Authority of Group '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; that the statutory Jurisdiction is 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 'B' and 'C' of four Commissionerates; 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; 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; 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 of lack of jurisdiction.
Judge	Honble Mr. Justice Altamas Kabir
Neutral Citation	2007 INSC 1010
Petitioner	Prabir Banerjee
Respondent	Union Of India And Ors
SCR	[2007] 10 S.C.R. 694
Judgement Date	2007-10-05
Case Number	20706

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