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2007 DIGILAW 1740 (PNJ)

Anil Kumar v. Union Of India

2007-09-25

ADARSH KUMAR GOEL, AJAI LAMBA

body2007
Judgment Ajai Lamba, J. 1. This civil writ petition under Articles 226/227 of the Constitution of India has been filed with a prayer for quashing order dated 25.7.2001 (Annexure P-7), order dated 24.2.2004. (Annexure P-9) passed by appellate authority and order dated 6.7.2006 (Annexure P-14) passed by Central Administrative Tribunal, Chandigarh Bench (CAT). 2. Vide the Order dated 25.7.2001 (Annexure P-7) Office of the Chief Commissioner of Central Excise, New Delhi has rejected the request of the petitioner Anil Kumar Monga for repatriation back to Chandigarh Commissionerate with original seniority in view of the Rules dated 15.1.1998. It has however been said that the case can be considered afresh if he is still willing to get Chandigarh Commissionerate as a new entrant and he will not be entitied to seniority which would be fixed at the bottom in the seniority list of the Inspectors. 3. The petitioner filed an appeal against Order dated 25.7.2001 (Annexure P-7) which was dismissed vide the Order dated 24.2.2004 (Annexure P-9) while observing that once a Government servant is confirmed in a post, his all connections stand severed from the earlier organization and he is precluded from seeking transfer to the earlier organization. 4. The petitioner agitated by Order dated 24.5.2002 (Annexure P-10) filed an original application before the Administrative Tribunal. The original application has been dismissed vide the Order dated 6.7.2006 (Annexure P-14). 5. The undisputed facts are that the petitioner was selected as Inspector in Central Excise Department on 28.8.1989 and he joined in Central Excise Commissionerate at Chandigarh on 29.8.1989. He was confirmed w.e.f. 6.11.1992. The seniority of the Inspectors is maintained at a Commissionerate level. 6. The request of the petitioner for transfer to Delhi Commissionerate was entertained and the petitioner was transferred to Delhi Commissionerate Subsequently, the Chandigarh Commissionerate also accepted the transfer and passed an order of relieving the petitioner. The petitioner joined in Delhi Commissionerate on 27.4.1994. The condition to which the petitioner was subjected at the time of transfer are required to be noticed. Annexure P-2 is the letter and the relevant terms and conditions read as under : "TERMS AND CONDITIONS : 1. The officers on Inter-Collectorate transfer, will not be entitled to count their services rendered in Chandigarh Collectorate for the purpose of seniority in Delhi Collectorate. In other words, they will be assigned seniority in Delhi Collectorate in accordance with Rules/instructions in force. The officers on Inter-Collectorate transfer, will not be entitled to count their services rendered in Chandigarh Collectorate for the purpose of seniority in Delhi Collectorate. In other words, they will be assigned seniority in Delhi Collectorate in accordance with Rules/instructions in force. They will be adjusted against direct quota Recruitment. 2. On transfer they will not be considered for promotion/confirmation in Chandigarh Collectorate. 3. If they are permanent employee, they will retain their lien in the Chandigarh Collectorate, till they are confirmed in Delhi Collectorate." The petitioner however filed an application on 27.3.1997 (Annexure P-3) that the wanted to be transferred back to Chandigarh Commissionerate as he was still holding lien with Chandigarh Commissionerate and he had not been confirmed at Delhi Commissionerate. Reminder to Annexure P-3 was given vide Annexure P-4 dated 5.7.1999. Similar applications were given on 24.8.2000 and 25.9.2000 (Annexures P-5 and P-6). 7. The petitioner however received a communication dated 25.7.2001 (Annexure P-7) i.e. impugned order to which a reference has already been made. 8. Another order that has been highlighted by the leaned counsel for the petitioner i.e. Annexure P-11 dated 30.6.2004 to which exact reference is required to be given : "Sub : Inter Commissionerate Transfers repatriation to parent Commissionerate-regarding. Sir/Madam, I am directed to refer to Boards instructions vide F.No. A22015/3/04-Ad.III.A dated 19.2.2004 regarding ban on inter Commissionerate transfers. In this connection, Board has received references regarding repatriation of Inter Commissionerate transferee of parent Commissionerate within the lien period, after the issuance of Boards aforesaid instructions dated 9.2.2001. The matter has been examined. It has been decided that in view of Boards instructions vide F.No. A23020/116/97-Ad.III.A dated 15.1.98, whenever the request by an inter Commissionerate transferee has been made for repatriation to parent Commissionerate within the lien period, there should be no objection to accept the request." 9. Having noticed the facts, we find that the impugned order dated 25.7.2001 (Annexure P-7) was passed in view of the prevailing Rules dated 15.1.1998 which were based upon DOPTs instructions dated 24.9.1992 which provide for retention of lien in the old charge for a period of two years. The basis of the order is that period of two years had already expired and therefore the request for re-transfer to Chandigarh Commissionerate could not be entertained. 10. The basis of the order is that period of two years had already expired and therefore the request for re-transfer to Chandigarh Commissionerate could not be entertained. 10. Learned Counsel appearing for the respondent has not been able to show that the Rules/Department of Revenues letter dated 15.1.1998 had retrospective effect. The date of issuance of Rule assumes importance in view of the letter of request of the petitioner to go back to Chandigarh which was made on 27.3.1997 i.e. much prior to the issuance of the letter dated 15.1.1998 on account of which impugned order (Annexure P-7) was passed. Even otherwise, we find the order (Annexure P-7) is in total disregard to third condition of transfer which has been extracted hereinabove and provides that a permanent employee will retain lien in Chandigarh Collectorate till he is confirmed in Delhi Collectorate. It is not in dispute that the petitioner was a permanent employee of Chandigarh Collectorate and had not been confirmed in Delhi Collectorate till the date of filing of his application for re-transfer to Chandigarh. The order has also not considered the import of Order dated 30.6.2004 (Annexure P-11) which has also been extracted and reproduced hereinabove and provides that whenever request by an Inter Commissionerate transfer is made for repatriation to parent Commissionerate within the lien period, there should be no objection to accept the request. In Annexure P-11, the letter dated 15.1.1998 has been considered and the condition of retention of lien only for a period of two years has not been mentioned. Thus, order (Annexure P-7) being in disregard to the terms and conditions of transfer as also order (Annexure P-11), is liable to be set aside. 11. The petitioner filed an appeal. The order passed by the appellate authority dated 24.2.2004 (Annexure P-9) mentions only one reason for declining the request of the petitioner viz. that the petitioner had been confirmed in the post at Delhi. The order is against facts in so much as on the date of filing application for retransfer to Chandigarh i.e. 27.3.1997 (Annexure P-3) the petitioner had not been confirmed in Delhi Collectorate. In fact, the application for transfer (Annexure P-3) Para 5 specifies this fact. It has not been disputed before us that the petitioner was confirmed in Delhi Collectorate much subsequently i.e. on 9.10.1997. In fact, the application for transfer (Annexure P-3) Para 5 specifies this fact. It has not been disputed before us that the petitioner was confirmed in Delhi Collectorate much subsequently i.e. on 9.10.1997. Thus, the ground taken by the appellate authority while dealing with the appeal of the petitioner was not even available. The order, therefore, is rendered without any application of mind. 12. The petitioner challenged the action before the Central Administrative Tribunal, Chandigarh Bench (CAT). The reason for dismissing the application of the petitioner as given in Para 9 of the order passed by the CAT is that it is not the date of request of a person which would be relevant but it is the date of decision which would be the deciding factor as to what is the law or the rules available on the date of such decision. 13. Learned counsel appearing for the respondent has not been able to show any rule or regulation to say that the date of decision is the relevant factor for taking a decision on the application for transfer. 14. In view of the admitted facts i.e. the terms and conditions of transfer to which the petitioner was subjected and letter (Annexure P-11), we are of the considered opinion that the reason given by the CAT is erroneous. Once at the time of transfer, it has been stipulated that the petitioner would retain the lien in Chandigarh Collectorate till his confirmation and Delhi Collectorate which was admittedly on 9.10.1997, the application for transfer made earlier i.e. on 27.3.1997 had to be dealt with in the light of the said condition. Further, as per Annexure P-11, the lien has been made the determining factor. The petitioner admittedly maintained his lien with the Chandigarh Collectorate on the date of filing of the application. The application filed in March was not dealt with within the reasonable time and was kept pending till after his confirmation in Delhi Collectorate. 15. In view of the above, we are of the considered opinion that the impugned orders are liable to be set aside. 16. Accordingly, this writ petition is allowed. The impugned order dated 25.7.2001 (Annexure P-7), order dated 24.2.2004 (Annexure P-9) and order dated 6.7.2006 (Annexure P-14) are hereby set aside.