Income Tax Commissioner's Appeal Against Transfer Dismissed by Delhi High Court:
Who should be transferred where, is for appropriate authority to decide
THE Commissioner of Income Tax submits to the Court that in the year 1999, he was posted as Deputy Commissioner at Delhi and subsequently promoted as Joint CIT and Additional CIT and retained at Delhi; that in the year 2007, he was placed under suspension and owing whereto the recommendations of the DPC held on 30.03.2007 qua him were placed in the sealed cover; that the order of suspension challenged by filing O.A. No.3661/2009 was set aside vide order dated 31.05.2010 therein for the reason of having been continued without substantial progress in the inquiry; that the sealed cover aforesaid was opened and the petitioner was ordered by the Appointment Committee of the Cabinet to be promoted to the rank of Commissioner of Income Tax with effect from 28.08.2007 i.e. the date of promotion of his junior with consequential benefits; however he was not so promoted and posted; that the Tribunal vide order dated 19.11.2010 in O.A. No.271/2010 directed the respondents to issue his posting and promotion orders on the basis of option already given by him; that the said order was also not complied with and on notice being issued in contempt proceedings initiated by him, he was on 11.05.2011 promoted as Commissioner of Income Tax and posted in Delhi; that owing to the same, the contempt proceedings were discharged; however on 14.07.2011 he was arbitrarily transferred to Ranchi.
He submits that his performance has generally been rated as outstanding and very good; that because of his opposition to corruption and moral depravity in the Income Tax Department and because of his having detected and reported theft of public money and public revenue in excess of Rs. 10,000/- crores by corrupt and morally deprived IRS Officers, he has been targeted and impleaded in false and mischievous cases.
He challenged his transfer, before the Central Administrative Tribunal.
The Tribunal in the impugned order, at the outset observed that the interference in transfer and posting of government employees is limited and confined only where
++ the authorities who issued the transfer orders, were not competent to pass the orders; or,
++ the service rules, transfer policy / guidelines prohibit such transfer; or,
++ the order is mala fide; or
++ the order suffers from arbitrary and discriminative action of the Executive.
It was observed that the petitioner had All India Transfer liability and it was not in dispute that the transfer and posting orders of the petitioner to Ranchi had been passed by the competent authority i.e. the Finance Minister. As far as the challenge to the transfer as contrary to the Transfer Guidelines was concerned, the Tribunal found that as per the said Guidelines, on promotion Group “A? Officers were normally to be transferred out of the region; that the petitioner had been working in Delhi with effect from 07.06.1999; that even during his suspension, his headquarter was at Delhi and thus the period of suspension was not to be excluded; the stay of the petitioner at Delhi was computed as of eight years and four months; that the petitioner, on promotion was thus due to be transferred out of the region. The allegations of mala fide and arbitrariness were also found to be not substantiated.
The CIT is before the High Court. The High Court observed:
Merely because the Petitioner has filed a Writ Petition against one of the members of the Placement Committee cannot allow the Petitioner to label the decision so taken as mala fide for the reason of pendency of the said Writ Petition. If such a course were to be permitted, it would open the gates for unscrupulous persons to initiate proceedings against persons likely to take decisions qua them, to subsequently in the event of the decision being against their like, label the same as mala fide.
Who should be transferred where, is for the appropriate authority to decide and order of transfer cannot be interfered with on the ground that some others have not been transferred.
Clause 4.3 (i) of Transfer Guidelines providing liability from transfer on completion of eight years at Delhi does not create any right to remain in Delhi for eight years and in any case is not attracted to cases of promotion.
The High Court did not find any merit in the challenge and dismissed the same.