2007 Supreme(SC) 1282

2007(7) Supreme 366
Supreme Court of india
(From Madhya Pradesh High Court)
Altamas Kabir & D.K. Jain, JJ.
Prabir Banerjee — Petitioner
versus
Union of India and others — Respondents
Special Leave Petition (civil) 20706 of 2006
Decided on : 05-10-2007

important points
In absence of any direct Rule, the administrative instruction would have to be implemented.
Acquiescence to the jurisdiction of any authority disentitles a person to question the decision of that authority.

Headnote:(a)Service Law – Transfer – Transfers made in administrative exigencies or in public interest or for smooth functioning of the system do not warrant any interference under Articles 226 and 227 of the Constitution of India. (Para 11)

       AIR 1991 SC 532 – Relied upon.

       (b)Service Law – Transfer – Transfer is an incident of service under the Central Service Rules – Chief Commissioner of Central Excise, Bhopal zone, transferring petitioner to Nagpur zone under powers vested in him by the Board by its Circular dated 16.1.2003 – The petitioner therefore has no cause to complain in respect of the transfer order. (Para 20)

       (2001) 5 SCC 508; (2001) 8 SCC 574; (2004) 4 SCC 245; (2004) 7 SCC 405 – Referred.

       (c)Administrative Law – In absence of any direct Rule, the administrative instruction would have to be implemented. (Para 23)

       (d)Service Law – Transfer – No material brought on record showing rescinding or altering the circular dated 24.8.1984 – The Chief Commissioner, Bhopal, therefore continued to have control over the Commissionerates at Bhopal and Nagpur – Thus he was competent to transfer Petitioner from Bhopal to Nagpur. (Para 24)

       (e)Estoppel – Having submitted to the direction of the High Court by making representation to the Chairman, Central Board of Excise and Customs, petitioner disentitled himself to question the decision rendered by the High Court. (Para 26)

       Facts of the case:

       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.

       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. The petitioner was promoted to the post of Superintendent in 2003, which is a B category post.

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

       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 Commissio-nerate. 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.

       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.

       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.

       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 permitted the petitioners to file representation before the Department against the order of transfer under challenge.

       Findings of the Court:

       Chief Commissioner Bhopal was competent to transfer petitioner from Bhopal zone to Nagpur zone.

       Result :SLP dismissed.