Full Judgment
2. The matrix of facts in OA No. 1888 of 2006 (Sh. Anil Kumar) is as follows. Shri Anil Kumar joined the Department of Revenue as Assistant Commissioner of Income Tax on 8.01.1989. By order number 82 of 2005, he was transferred from Ludhiana to Delhi to the Directorate of Organization and Management Services as a part of Annual General Transfer of 2005. He joined on 31.08.2005. By order Number 69 of 2006 dated 31.05.2006, he was again transferred to UP (East) as a part of Annual General Transfers of 2006. The order also included the following directive: 'All the officers mentioned above should be relieved on or before 09.06.2006 positively under intimation to the Board. The compliance reports regarding relieving/joining of above officers may be forwarded by the concerned CCIT(CCA) to the Board by 15.06.2006 positively.' It added further that, 'with this order, all representations for postings and transfers of Addl./Joint Commissioners of Income Tax stand disposed off. Henceforth representations for transfer/posting from Officers of this rank shall be entertained only after they are received through the concerned CCIT (CCA) after the concerned officer has joined the new place of posting in terms of Para 10 of the Transfer Policy. The CCIT (CCA) shall consolidate all such representations relating to their respective Regions and forward the same to the Board with specific recommendations on a monthly basis. No direct representations shall be entertained whatsoever.' 3. The applicant Shri Anil Kumar was relieved of his charge at Delhi on 09.06.2006 and joined at Lucknow after availing of joining time. He then gave a representation to the Chairperson, Central Board of Direct Taxes (CBDT) dated 05.06.2006, but as averred by the learned Counsel for the Applicant and not disputed by the Respondents on 12.06.2006 for posting to Delhi. The representation was given on medical ground that the Applicant was suffering from Cancer of thyroid and was undergoing treatment at A.I.I.M.S. at New Delhi. He also brought it to the notice of the Respondent No. 2 that he had not requested for transfer from Delhi. The representation also mentions that he was transferred to Delhi on medical grounds.
4. On the basis of representations, transfers were again effected on 26.06.2006 but the list did not include the applicant's name. Applicant made a representation, which was not considered. The applicant aggrieved by this filed OA No. 1477 of 2006 before this Tribunal, in which by order dated 19.07.2006 the respondent CBDT was directed to consider the representation of the applicant within a period of four weeks. There was no order by the respondents in four weeks. The Applicant filed an MA with the request to revive the previous OA. On this MA being dismissed, the instant OA has been filed.
5. Learned Counsel for applicants has drawn our attention to the option form filled by the applicant (Annexure A-17) regarding transfer in which he has clearly mentioned that he is not making any request for transfer and he has categorically stated that he would like to remain in New Delhi. In the consolidated Statement of Option Forms for Addl./Joint CIT Level Officers (CCIT Delhi Region) (Annexure 18), it is stated at serial number 20 against the applicant's name that he is not due for transfer and that he has given option for posting in New Delhi only. He has not given any option for UP (East) for the Annual General Transfers of the year 2006. The learned Counsel has also contended the statement made in paragraph 4.1 of the counter affidavit that the applicant had requested for transfer to Delhi, Mumbai or UP(West) in his option for AGT 2005 on the ground that on the basis of AGT, the applicant has already been posted to Delhi and the issue in the present OA relates to AGT 2006. The applicant, it is argued, has not opted for UP (East) in AGT 2006. The learned Counsel for the applicant would argue that the Placement Committee of CBDT considered transfers for the AGT 2006 and the options of AGT 2005 were not before it. The minutes of the Placement Committee are placed at Annexure A-19 in O.A.1888/2006.
It has been vehemently argued that the option of the applicant was not considered although he is a patient of cancer, yet some officers namely Sh. G.S.Phani Kishore was retained in Andhra Pradesh on request; Ms.
Komal Jagpal was retained in Andhra Pradesh, being the wife of Sh G.S.Phani Kishore; Shri Ashok Kumar was transferred to West Bengal on the consideration that he was involved in legal dispute with his wife in Bihar and, therefore, Tamil Nadu would be unsuitable; Shri Sanjay Kumar has been transferred to Delhi on the ground of his father suffering from cancer etc. yet, as the learned Counsel would contend, no consideration has been shown to the applicant, who is himself suffering from cancer. Parameters applied for others have not been applied to him.
6. It has further been argued that the CBDT has violated its own transfer policy. Paragraph 9 of Transfer Policy has laid down that '9.
The minimum and maximum tenures on a post shall ordinarily be 2 and 3 years respectively.' The learned Counsel for the applicant has also brought to our notice the averment made in the counter affidavit that the placement committee evolved, inter alia, the following criterion for transfer: 'As far as possible, to prevent hardships faced by officers due to frequent transfers, officers transferred during AGT-2005 would not be transferred during this year even if they are otherwise due as per transfer policy, except on compassionate grounds.' The learned Counsel would contend that in the instant case the applicant is not even due for transfer.
7. In case of the applicant in OA No. 2042/2006, Sh. Rajesh Kumar Jha, it has been contended that his representation dated 5.6.2006 has not yet been disposed off. It has been contended that he has been transferred by misinterpreting the Transfer Policy 2005. Our attention has been drawn to paragraph 5 of the Transfer Policy, which is as follows: 5. Classification of stations, fixations of tenures and rotation between them.
The various stations where Group 'A' officers can be posted have been categorized as Class 'A', Class 'B' and Class 'C'. Such categorization is based on the twin criteria of revenue collection and the number of Commissioner level posts at a station. (Appendix I) 5.1 All suburbs of metro towns have been clubbed with the respective metro town in this classification.
5.2 The categorization of stations may be changed by the Board with the approval of the Government.
5.3 1) The country will be divided into four areas, viz., East, West, North and South.
The existing CCIT regions will be divided into the four Areas as under: 2) A total posting period of 16 years in a region shall be counted as a 'cycle'. In Mumbai and Delhi regions, since there are no Class 'B' and Class 'C' stations, one cycle will be of 8 years.
3) An officer shall not serve for more then one cycle in a region during his entire service up to and including the rank of Commissioner.
4) An officer shall be posted to another region after he has completed one cycle of posting.
5) The maximum tenure at a Class 'A' station in a cycle will be 8 years, the remaining period will be spent in Class 'B' and Class 'C' stations.
6) The minimum tenure at Class 'B' + Class 'C' stations in each cycle shall be 6 years.
7) The maximum total tenure in Class 'A' stations during service up to and including the rank of Commissioner shall be 16 years.
8) An officer shall be posted to another 'Area' when he is promoted to the level of Commissioner of Income Tax, provided he has remained in only one 'Area' for 16 years or more till his promotion as Commissioner.
9) The minimum and maximum tenures on a post shall ordinarily be 2 and 3 years respectively.
10) Once posted to another 'area' on promotion as Commissioner, an officer may be posted back to the same 'area' after he has served in 'areas' other than that of long stay for minimum of 5 years.
11) Exceptions on compassionate/administrative grounds may be made by the Placement Committee.
12) When a certain number of officers are due for moving out of a station to a new station or to new postings in the same station for reason of having completed their tenure, but cannot be so moved due to inadequate number of vacancies available, the officer who have served for long periods will be moved first as far as possible.
13) The Station of the posting will be taken as the actual place where an officer is posted and not headquarters of Commissionerate/Directorate to which the officer is posted.
14) A stay of more than nine months at a station (to be computed as on 31st December of the previous year) will be treated as complete year, and the length of the period of the period of stay shall be counted from the date of joining.
8. It has been contended that the present cycle for Delhi Region in his case would start in the year 2001, when he joined the Region and, therefore, he has not completed eight years. It has further been contended that he has also not completed sixteen years at a Group A station. In case of the applicant Sh. Anand Kumar (OA No. 2217 of 2006) also, eight years would be completed in June, 2007. The learned Counsel for respondent has also concurred in with this view.
9. The learned Counsel for the respondents has argued that the applicant himself had given a request on 17.6.2005 for cancellation of transfer to Delhi during AGT 2005. He has pointed out that in the order number A-22012/5/2006-Ad.VI (Pt.) dated 5.10.2006 (Annexure R-1), it has been noted that he had made a request for transfer to UP (West) in his option for AGT 2005. It has further been mentioned in the said order that adequate medical facilities exist at Sanjay Gandhi Post Graduate Institute of Medical Sciences at Lucknow. It has further been contended that his medical document is of the year 2000 and further medical history has not been given. He has also contended that the applicant has already joined at Lucknow and estopped from making further representation.
10. In so far as the applicant's representation dated 17.6.2005 and options given for AGT 2005 are concerned, these are not germane to the issue in this OA, which is about AGT 2006. We have already discussed this in foregoing paragraph. As far as the fact of the applicant joining at Lucknow acting as estoppel is concerned, the learned Counsel for the applicant would argue that the applicant joined under compulsion, in view of the order that the transferred officers must be relieved by 5.6.2006 and hence estoppel would not apply. In this context reliance has been placed on the ratio laid down by the Hon'ble Supreme Court in Sharma Transport v. Government of A.P. and Ors.
, which is as follows: 17. These definitions in Black's Law Dictionary which are based on decided cases, indicate that before the Rule of 'Promissory Estoppel' can be invoked, it has to be shown that there was a declaration or promise made which induced the party to whom the promise was made to alter its position to its disadvantage.
21. Lord Denning approved the decision of Dixon, J. (supra) in Central Newbury Car Auctions Ltd. v. Unity Finance Ltd. and Anr.
1956 (3) All ER 905 (CA). Apart from propounding the above principle on judicial side, Lord Denning wrote out an article, a classic in legal literature, on "Recent Developments in the Doctrine of Consideration", Modern Law Review, Vol.15, in which he expressed as under: A man should keep his word. All the more so when the promise is not a bare promise but is made with the intention that the other party should act upon it. Just as contract is different from tort and from estoppel, so also in the sphere now under discussion promises may give rise to a different equity from other conduct.
The difference may, lie in the necessity of showing 'detriment'.
Where one party deliberately promises to waive, modify, or discharge his strict legal rights, intending the other party to act on the faith of promise, and the other party actually does act on it, then it is contrary, not only to equity but also to good faith, to allow the promisor to go back on his promise. It should not be necessary for the other party to show that he acted to his detriment in reliance on the promise. It should be sufficient that he acted on it.
This principle has been evolved by equity to avoid injustice. It is neither in the realm of contract nor in the realm of estoppel. Its object is to interpose equity shorn of its form to mitigate the rigour of strict law. In Union of India and Ors. v. Anglo Afgan Agencies AIR We are unable to accede to the contention that the executive necessity releases the Government from honouring its solemn promises relying on which citizens have acted to their detriment. Under our constitutional set up no person may be deprived of his authority of law, if a member of the Executive seeks to deprive a citizen of his right or liberty otherwise than in exercise of power derived from the law common or statute the Courts will be competent to and indeed would be bound to protect the rights of the aggrieved citizens.
23. Under our jurisprudence the Government is not exempt from liability to any out the representation made by it as to its future conduct and it cannot on some undefined and undisclosed ground of necessity or expediency fail to carry out the promise solemnly made by it, not claim to be the Judge of its own obligation to the citizen on an ex parte appraisement of the circumstances in which the obligation has arisenIn Century Spinning and Manufacturing Co. Ltd. and Anr. v. The Ulhasnagar Municipal Council and Anr.
doctrine of promissory estoppel against public authorities was extended thus: This Court refused to make distinction between the private individual and a public body to far as the doctrine of promissory estoppel is concerned.In Motilal Padampat Sugar Mills Co. (P) Ltd. v. State of Uttar Pradesh and Ors.
estoppel was applied to the executive action of the State Government and also denied to the State of the doctrine of executive necessity as a valid defence. It was held that in a republic governed by the rule of law, no one high or low, is above the law. Everyone is subject to the law as fully and completely as any other and the Government is no exception. The Government cannot claim immunity from the doctrine of promissory estoppel. Equity will, in a given case where justice and fairness demands, prevent a person from exercising strict legal rights even where they arise not in contract, but on his own Title deed or in statute. It is not necessary that there should be some pre-existing contractual relationship between the parties. The parties need not be in any kind of legal relationship before the transaction from which the promissory estoppel takes its origin. The doctrine would apply even where there is no pre-existing legal relationship between the parties, but the promise is intended to create legal relations and effect a legal relationship which will arise in future. It was further held that it is indeed pride of constitutional democracy and rule of law that the Government stands on the same footing as a private individual so far as the obligation of the law is concerned.
The former is equally bound as the latter. Therefore, the Government cannot claim any immunity from the doctrine of promissory estoppel and it cannot say that it is under no obligation to act in a manner i.e., fair and just or that it is not bound by the considerations of honesty and good faith. In fact, the Government should be held a high standard of rectangular rectitude while dealing with citizens.
Since the doctrine of promissory estoppel is an equitable doctrine, it must yield where the equity so requires. If it can be shown by the Government that having regard to the facts as they have transpired, it would be inequitable to hold the Government or public authority to the promise or representation made by it, the Court would not raise an equity in favour of the promise and enforce the promise against the Government. The doctrine of promissory estoppel would be displaced in such a case, because on the facts, equity would not require that the Government should be held bound by the promise made by it. But the Govt. must be able to show that in view of the fact as have been transpired, public interest would not be prejudiced. Where the Govt. is required to carry out the promise the Court would have to balance, the public interest in the Government's carrying out the promise made to the citizens, which helps citizens to act upon and alter his position and the public interest likely to suffer if the promises were required to be carried out by the Government and determine which way the equity lies. It would not be enough just to say that the public interest requires that the Govt.
would not be compelled to carry out the promise or that the public interest would suffer if the Govt. were required to honour it. In order to resist its liability the Govt. would disclose to the Court the various events insisting its claim to be except from liability and it would be for the Court to decide whether those events are such as to render it equitable and to force the liability against the Government.
24. It is equally settled law that the promissory estoppel cannot be used compelling the Government or a public authority to carry out a representation or promise which is prohibited by law or which was devoid of the authority or power of the officer of the Government or the public authority to make. Doctrine of promissory estoppel being an equitable doctrine, it must yield place to the equity, if larger public interest so requires, and if it can be shown by the Government or public authority for having regard to the facts as they have transpired that it would be inequitable to hold the Government or public authority to the promise or representation made by it. The Court on satisfaction would not, in those circumstances raise the equity in favour of the persons to whom a promise or representation is made and enforce the promise or representation against Government or the public-authority. These aspects were highlighted by this Court in Vasantkumar Radhakishan Vora v. The Board of Trustees of the Port of BombaySales-tax Officer and Anr. v. Shree Durga Oil Mills and Anr.Dr.
Ashok Kumar Maheshwari v. State of U.P. and Anr. .
Above being the position, the plea relating to promissory estoppel has no substance.Mahabir Vegetable Oils (P) Ltd. and Anr. v. State of Haryana and Ors. (2006) 3 SCC 620 in which it has been held by the Hon'ble Supreme Court that: 25. It is beyond any cavil that the doctrine of promissory estoppel operates even in the legislative field. Whereas in England the development and growth of promissory estoppel can be traced from Central London Property Trust Ltd. v. High Trees House Ltd. (1947) 1 KB 130, in India the same can be traced from the decision of this Court in Collector of Bombay v. Municipal Corporation of the City of Bombay and Ors. . In that case the government made a grant of land (which did not fulfill requisite statutory formalities) rent free. It, however, claimed rent after 70 years.
The government, it was opined, could not do so as they were estopped. It was further held therein that there was no overriding public interest which would make it inequitable to enforce estoppel against the State as it was well within the power of the State to grant such exemption.
12. The learned Counsel for the respondents has cited the judgment of the Hon'ble Supreme Court in Union of India and Ors. v. S.L. Abbas in which it has been held that: 6. An order of transfer is an incident of Government Service.
Fundamental Rule 11 says that "the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority." Fundamental Rule 15 says that "the President may transfer a Government servant from one post to another". That the respondent is liable to transfer anywhere in India is not in dispute. It is not the case of the respondent that the order of his transfer is vitiated by mala fides on the part of the authority making the order, - though the Tribunal does say so merely because certain guidelines issued by the Central Government are not followed, with which finding we shall deal later. The respondent attributed "mischief" to his immediate superior who had nothing to do with his transfer. All he says is that he should not be transferred because his wife is working at Shillong, his children are studying there and also because his health had suffered a set-back some time ago. He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines.
They do not have statutory force.
7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides 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.Laxmi Narain Mehar v. Union of India and Ors.
2. Learned Counsel for the petitioner contends that the petitioner was transferred on compassionate grounds and the transfer is not valid in law. Though he might have been transferred on compassionate grounds, in view of the express indication in the order giving reasons for the transfer, i.e., need of experienced staff at the respective places, the transfer order cannot be said to be arbitrary. Then it is contended that the petitioner being an Officer belonging to the Scheduled Castes, is entitled to be considered for retention of his posting nearest his home town. It is true that the instructions have been issued as reproduced at page No. 18 of the paper book to that effect, yet they would be subject to the administrative exigencies. It is stated that the services of the experienced Officer were necessary and so the transfer order came to be made. It is true that as far as possible, the convenience of the Officer belonging to Scheduled Castes and Scheduled Tribes may be considered and he may be posted near the home town, but the authority has power to transfer him when the administrative need arises. It is further contended that the petitioner had made allegations against the Officers and the transfer is a vindictive measure of punishment. It is seen that he was transferred on account of administrative exigencies.
13. In the instant case, there is no averment by the respondents that the transfer of the applicant was necessary in administrative exigencies. There is an element of arbitrariness and discrimination.
There is a transfer policy and the applicants are covered by it for not being transferred. There are others, as has been pointed elsewhere in this order, who have been treated with consideration, whereas the same consideration has not been shown to the applicants. The respondent's argument that the medical document is of the year 2000 and medical history beyond this has not been given does not wash. The respondents transferred the applicant on medical grounds in AGT 2005. This has even been alluded in the order No. 22012/5/2006-AD.VI (Pt.) dated 5.10.2006 (ibid). This argument, therefore, smacks of callousness.
14. In the above conspectus of the matter, after considering the rival contentions and perusing the record of the cases, we are of the view that the transfer of the applicants is contrary to the Transfer Policy of the respondents and their transfers are arbitrary. In the result the transfer of the applicants in the order No. 69 of 2006 dated 31.5.2006 is quashed and set aside and it is further ordered that status quo ante 31.5.2006 be restored as far the postings of the applicants are concerned. No costs.