1. The subject matter of this O.A. is the transfer order dated 25.6.02 whereby the applicant has been transferred from Kolkata to Burdwan on the same post.
It is averred that the applicant is a member of IRS and since 1976 he has worked in various capacities at various places and has endeavoured to the best of his abilities in the interest of the Department. It is further stated that on 26.6.01 the applicant was posted as Commissioner of Income Tax, West Bengal XI. This post was subsequently redesignated as Commissioner of Income Tax, Kolkata XI w.e.f. 1.8.2001. During the financial year 2001-02 the performance of the Department under the applicant's charge was very good in as much as the total collection was Rs. 20.78 crores against the targetted figure of Rs. 23.78 crores. It is further stated that despite the good performance of the applicant, and the D.O. letter dated 15.1.01 issued by the Chairman, Central Board of Direct Taxes he has been transferred. The further case for the applicant is that he has widowed old father 85 years of age, who suffers from various ailments including cardiac blockage and that his cider daughter is studying in Class XI and his younger daughter studying in Loreto House, will be appearing in ICSE Examination in 2003. The applicant further states that he made representation against the transfer order, but the same has not been disposed of. It is averred that the transfer order of the applicant is arbitrary, illegal, malafide, discriminatory, invalid and bad and contrary to the criteria fixed by the Respondent No. 3 in his D.O. letter. It is prayed that the transfer order, Annexure 'C' be quashed, so far as it relates to the applicant.
2. In the reply, the respondents have opposed the application. It is stated that the applicant has no cogent and valid ground to challenge the order of transfer. It is further stated that the applicant has been transferred from Kolkata to Burdwan i.e. within the same region though he has completed 14 years of stay in West Bengal Region, which is the maximum period of stay in a region. It is averred that the transfer is in the interest of administration and it is as per the transfer guidelines issued by Ministry of Finance, Government of India vide circular dated 9.11.1999.
3. In the rejoinder, the applicant while reiterating the facts stated in the O.A., has stated that the applicant was not due for transfer outside or within the Region by the CBDT's own standard and he should not be posted on transfer from a metropolitan city to a nearby station.
4. We have heard the learned Counsel for both the parties and have gone through the documents placed on record.
(1) The transfer order has been issued in violation of the D.O. letter dated 15.1.01 issued by Respondent No. 3.
(3) There is no proper office building in Burdwan and it will cause him humiliation if he works there after he has worked at Kolkata.
6. On the other hand, the learned Counsel for the respondents contended that the applicant owns all India transfer liability and there is no violation of the transfer guidelines. He further contended that the D.O. letter does not help the applicant in any manner. Relying on the State Bank of India v. Anjan Sanyai and Ors., 2001(1) SC SLJ 353, he contended that this Court cannot be justified in interfering with the order of transfer.
7. We have given the matter our thoughtful consideration. In the D.O.letter dated 15.1.01 it was impressed that good performance should be given in the financial year. The relevant portion of the letter is reproduced hereunder: "The latest review of collection viz-a-viz the Budget target show a negative growth of about 20% till end of December. A recent review conducted by Member shows that much remains to be done in the matter of enforcement of measures for collection. The officers at field formations should bear in mind that their performance in this area shall constitute the most vital input for the end of the year appraisal of their performances. It has been decided that whoever performs well and shows results expected of him will be rewarded with postings in important areas of work while a non-performer will be shifted to insignificant (sic) jobs, I write this letter not by way of a meaningless ritual, the message should go down that Board's thinking shall be translated into action when the time comes for effecting Annual General Transfers in the next financial year." On the basis of the D.O. letter it was contended that the applicant whose performance was good could not be sent from Kolkata to comparatively insignificant place at Burdwan.
8. In our opinion the contention is misconceived. What is stated in the D.O. letter is that whoever performs well will be given posting in important areas of work. The word 'area' in the D.O. letter does not signify the geographical area. The word 'area' has been used in relation to work. At the same time, the words 'non-performer will be shifted to insignificant jobs, do not mean that non-performer is to be shifted to smaller place. A place may be small, yet the job may be significant. At times the place may be bigger even a cosmopolitan city, yet the job may be insignificant.
9. It can be said that the applicant has been transferred to insignificant job. He has been transferred on the same post as Commissioner of Income Tax, Burdwan, which post he was holding at Kolkata. It may be that Burdwan is smaller place than Kolkata, but it cannot be said that the applicant has been shifted to insignificant job, because the job is the same.
10. It is not in dispute that the achievement of the applicant was Rs. 20.78 crores as against the target of Rs. 23.78 crores. But, this performance can not be said to be exemplary, because the applicant has not even achieved the target fixed. On the other hand, it is noticed that various Commissioners have achieved more than what was targetted.
It is also noticed from the charge prepared by the applicant that the persons who have done much better than the applicant, have also been transferred and to the distant place like Shillong. It is also true that some of the Commissioners whose performance was not good as that of the applicant have been retained in Kolkata.
11. This Court however cannot be justified in quashing the order of transfer on the basis of the achievement. It is for the competent authority to appreciate the work performed by the applicant and others and to consider the utility of a particular officer at a particular place. In any case, the D.O. letter dated 15.1.01 does not help the applicant.
12. As to the guidelines, it may be stated that it is provided at Para 3 of the guidelines that in metropolitan and other big cities, the officers will be rotated once in three years in such a way that they are not only transferred from one CIT charge to another, but they are required to perform different functions on transfer. It is provided at Para 9 of the guidelines that an officer is liable to be transferred to any part of the country at any time at short notice on administrative grounds. At Para 1 it is provided that all Group 'A' Officers will be liable for transfer at the commencement of the next financial year if they have completed 8 years of continuous stay in any cadre controlling Chief Commissioner/Commissioner's Region/ Charge. At Para 2 it is provided that stay at a station will not exceed 8 years.
13. It is evident from the pleadings that the applicant has remained in Kolkata for more than 14 years. It is not understood as to how the guidelines have been violated when he has been transferred from Kolkata to Burdwan.
14. Our attention was drawn to Para 17 of the guidelines, which says that officers at the level of CIT should not be posted on transfer from a metropolitan city to a nearby station. At Para 5 of the guidelines it is provided that the total stay of an official during the course of his entire career, in all grades, (in Group 'A') in a particular Region/Charge should not exceed 14 years. There is obvious inconsistency in the guidelines.
In any case, the guidelines are of directory nature. They are not statutory provisions. Even if the transfer order is in violation of some of the guidelines it cannot be quashed.
15. It is settled legal position that the Court cannot interfere in the matter of transfer, unless it is shown that the transfer order was issued by an authority not competent to transfer, or that transfer is against the statutory provisions or that it is malafide.
"Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by malafides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly, if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right."In the Case of State Bank of India v. Anjan Sanyal and Ors. (supra) it was observed that if the order is passed in violation of rules, or on account of malafide or on the ground that the same is passed by an incompetent authority, then only the Court or Tribunal can interfere with transfer order.State of Madhya Pradesh and Anr. v. S.S.Kourav and Ors., AIR(SC) and National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan and Anr., (2001) 8 Supreme Court Cases 574=2002(1) SLJ 86 (SC).
In the Case of Gujarat Electricity Board and Anr. v. Atmaram Sungomal Poshani, AIR 1989 SC 1433=1989(3) SLJ 68 (SC), it has been held as follows: "Transfer of a Government Servant appointed to a particular cadre of transferable posts from one place to the other is an incident of service. No Government Servant or employee of public undertaking has legal right for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the public administration. Whenever, a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification or cancellation of the transfer order. If the order of transfer is not stayed, modified or cancelled the concerned public servant must carry out the order of transfer..." 16. Keeping in view the legal position stated above, there cannot be any justification for this Court to interfere in the order of transfer.
17. It may be pointed out that though in the O.A. it is stated that the transfer order has been issued because of malafides, but in support of the plea no facts have been stated. The allegation of malafides cannot be accepted without any material.
18. It may be that at Burdwan there is no proper office building but that cannot be the ground of quashing the transfer order. Someone or the other has to join there. There is no question of humiliation of the applicant when he joins at Burdwan without proper building as he continues to be the Commissioner of Income Tax and he will be required to perform the same duty which he was performing in Kolkata.
19. Consequently, we find no merit in this O.A. It is dismissed with no order as to costs.