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1971 Supreme(Del) 135
High Court Of Delhi
S.K.SRIVASTAVA - Appellant
Versus
UNION OF INDIA - Respondent
Civil 161 of 1971
Decided On : 05/05/1971
B.Kirpal, B.N.SEN, R.K.Malik, S.L.VATEL
Headnote:
GOVERNMENT SERVANT - TRANSFER - POWER OF GOVERNMENT - LIMITATION - REDUCTION IN RANK - ARTICLE 311 (2) OF THE CONSTITUTION - CENTRAL CIVIL SERVICES (CLASSIFICATION, CONTROL AND APPEAL) RULES, 1965 - FUNDAMENTAL RULES 9 (4), 9 (13), 12 (A), 12 (B), 15, 16.1 - INTERPRETATION.
Fact of the Case:
The petitioner, an officer of the Indian Customs and Central Excise Service, Class I, was transferred from the post of Director of Revenue Intelligence to the post of Collector of Customs. He challenged the transfer as being illegal and unconstitutional.
Finding of the Court:
The Court held that the transfer was legal and did not amount to a reduction in rank. The Court further held that the petitioner did not have a right to hold the post of Director of Revenue Intelligence and that the transfer was not made with the intention to punish the petitioner.
Issues: 1. Whether the transfer of the petitioner was legal? 2. Whether the transfer amounted to a reduction in rank? 3. Whether the petitioner had a right to hold the post of Director of Revenue Intelligence?
Ratio Decidendi: 1. The Government has the power to transfer a Government servant within the range of transferability even if such a transfer results in loss of some advantages to the Government servant concerned. 2. The expression "reduction in rank" in Article 311 (2) of the Constitution has to be construed according to the well-established meaning it has acquired under the various service rules and the provisions in that regard. 3. A Government servant cannot be appointed substantively to two or more permanent posts at the same time.
Final Decision: The writ petition was dismissed.
( 1 ) THE nature of the power of the Government to transfer a Government servant from one post to another and the limitations on the extent of such power and when a person so transferred can be said to be "removed or reduced in rank" within the meaning of Article 311 (2) of the Constitution are some of the questions which arise for decision in this case.
( 2 ) THE petitioner joined the Imperial Customs Service on 7th September 1948. He was confirmed in the senior scale posts of Assistants Collector of Customs on 1st January 1956. On 12th August 1959 by an executive resolution of the Government of India, the Indian Customs Service Class I and the Central Excise Service Class I were integrated with effect from 15th August 1959 and the inter se seniority of the integrated service as validity determined as was held by one of us (Deshpande J.) in R. Pershad v. Union of India; (Civil Writ 358 of 1968 decided on 31-5-1958 (1 ). In the seniority list of officers holding the posts of Collectors of Customs and/or Central Excise on 1st April 1959 (Annexure R-1 to the counteraffidavit of the Government) the petitioner stood as No. 24. In the revised seniority list of all the officers included in the initial constitution of the Indian Customs and Central Excise Service Class I who were in position on 7th April 1970, the petitioner was shown as No. 16. On 30-8-1967 the President was pleased to order that the petitioner, an officer of the Indian Customs and Central Excise Service, Class I then posted as Collector of Central Excise, Allahabad "be transferred and posted as Director of Revenue Intelligence, New Delhi". The petitioner assumed charge of the post of Director of Revenue Intelligence on 19-9-1967.
( 3 ) IN April 1970 a telegram was received by the Director-General. Revenue Intelligence with a copy of the Chairman of the Central Board of Excise and Customs pointing out that the petitioner with his family was staying with a person who was previously a notorious smuggler having been convicted as such. It was also alleged therein that the petitioner has been showing favour to another well-known smuggler. When the petitioner was asked to give his version about this telegram, he admitted that he with his family stayed with the person who was formerly a smuggler and an ex-convict but defended his action by staling that the said person was no longer pursuing such illegal activities and on the other hand the petitioner obtained information from him about other smugglers. He also denied showing favour to the other well-known smuggler. The Government attached great importance to the need for the person occupying the sensitive office of the Director of Revenue Intelligence to so conduct himself as to set an example of upright behaviour and rectitude. The Government carfully considered the explanation offered by the petitioner but felt that he had committed a grave impropriety in this particular matter. In the interest of maintaining decorum in administration and having regard to the sensitive nature of the duties performed by the Director of Revenue Intelligence, the Government decided to transfer the petitioner from the post of Director of Revenue Intelligence on 25th May 1970 with the concurrence of the Minister of State in the Ministry of Finance and of the Prime Minister who was in-charge of Ministry of Home Affairs at that time. The following three impugned orders were. therefore, issued:-
(1) The President was pleased to order that the petitioner, Director of Revenue Intelligence, New Delhi, "be transferred with immediate effect and be posted as Collector of Customs, Calcutta". The petitioner however represented that he should not be sent to Calcutta. (2) Therefore, on 3-12-1970 the order dated 27-7-1970 was cancelled. (3) On 16-12-1970 the President was pleased to order that the petitioner "be posted as Collector of Central Excise, Hyderabad".
( 4 ) THE petitioner, however, refused to join his posting at Hyderabad and
