Dasan P.A vs Union Of India & Ors.

The applicant is an Inspector of Central Tax and Central Excise, now working in Thrissur range. He is an ex-serviceman, joined the Central Tax and Central Excise Department as Tax Assistant on 8.4.2009 in Bangalore. He was transferred to Kochi by inter-Commissionerate transfer on 4.12.2010. According to him, after serving different places, he was posted in Thrissur range on 12.10.2020. But before completing the station tenure, now he has been transferred to Aluva by Annexure A-1 order which is against the transfer policy guidelines. More over, he has only less than two years service remaining for retirement, he is due to retire from service in May 2024. Immediately after the receipt of Annexure A-1, he made Annexure A-3 representation requesting to retain him in Thrissur, but that has not been considered, aggrieved by the same, the applicant has moved the Tribunal for setting aside Annexure A-1 to the extent transferring him from Thrissur Range to Aluva Division and to direct the 4^th respondent to consider Annexure A-3 request for retention.

The respondents filed a common reply disputing the contentions in the Original Application. According to them, transfers have been effected following Annexure R1(a) general transfer policy/guidelines adopted on 22.7.2022. Going by this guidelines, fixed tenure for Group B & C employees in Central Tax and Central Excise, Thiruvananthapuram, Ernakulam and Kozhikode zones is 6 years and 4 years in other stations. The tenure shall be two years in stations where there exist only Ranges/Units. It has also been decided in the Joint Consultative Machinery Meeting that the posting to Ranges and sensitive formations should be restricted to two years. In normal course, an officer will be in a Range office only for two years except for any administrative reasons.

According to the respondents, the applicant has already worked in Thrissur from 28.12.2010 to 30.6.2017 i.e, for six and half years whereas the maximum tenure in Thrissur was only 4 years. In 2017, he was initially posted in Appeals Commissionerate, Kochi. But later considering his representation, he was given station posting to Guruvayoor on 30.6.2017. On completion of the tenure in Guruvayoor Range, he was transferred to Aluva Division on 7.6.2019. The tenure in Aluva is 4 years. But after one year, he was transferred back to Thrissur on 28.9.2020, at his request and in view of the Covid 19 pandemic. Thus, he had served in Aluva only for one year of a minimum of two years' tenure at the station. Thus, by Annexure A-1 dated 22.9.2022, he was transferred back to Aluva for completing the remaining minimum tenure.

It is further stated that for about seven years, he had been continuing in Thrissur though tenure in Thrissur was only 4 years. He cannot expect an indefinite stay in Thrissur during his career as a matter of right. The distribution of available man power with the department has to be exercised having regard to administrative exigencies. He has more than one and half years service remaining in the Department before superannuation. He is due for transfer from the Range office to a non-sensitive posting as per the transfer policy. Thus, according to the respondents, the transfer was effected following the guidelines and also in administrative exigency. The respondents have also relied on the decisions in State of Madhya Pradesh v. S.S.Kourav (AIR 1995 SC 1056), Gopinathan M and Another v. State of Kerala and Others (2014 (4) KLT 285) and seek dismissal of the Original Application.

In a rejoinder, the applicant has questioned various averments in the reply statement. According to him, he had joined the Department as Tax Assistant only on 8.4.2009 in Bangalore. Thereafter, he was transferred to Cochin on 4.12.2010 and transferred to Thrissur Division on 28.12.2010. He was transferred to Kerala zone as per order passed by this Tribunal in O.A 248/2013 dt. 7.11.2013. The argument that he had served in Thrissur for more than six and half years is not correct. From the version of the respondents itself, it is clear that he was transferred from Aluva to Thrissur due to Covid Pandemic. His present tenure is 4 years, but before completion of two years, he has been transferred to Aluva. He has only about one year remaining for retirement. Transfer at the fag end of the career causes him considerable hardships. He is also suffering from cardiac ailments and is undergoing treatment from Amala Hospital, Thrissur. Referring to the cases of Mr.Krishnakumar.M Nair, Superintendent, Mr.Joseph John and Mr.Miraj.K.K, Inspectors, he submits that they are allowed to continue in particular stations for long. Still, officer like the applicant has been disturbed on the verge of retirement which is discriminatory. Referring to Annexure A-10, he said that his devotion to duty has been appreciated by the superiors.

In the additional reply statement, the respondents have controverted the contentions of the applicant. According to them, the applicant continued in Thrissur for more than six and half years from 28.12.2010 to 30.6.2017. The minimum station tenure in Aluva is two years and he was transferred to Thrissur before completion of two years owing to Covid 19 pandemic, now he has been posted back to Aluva for completing the tenure. In the representation he had no case that he has any medical issues. The impugned order has been passed on administrative exigency. Referring to Annexures R1(b), R1(c) and R1(d), they said that the contentions raised with regard to the postings of Mr.Krishnakumar, Mr.Joseph John and Mr.Miraj.K.K are not correct. Transfers have been effected on administrative grounds, and on factors such as vigilance reasons, local requirement etc.

I heard the learned counsel on both sides. The respective arguments were reiterated by them.

In his second spell of service in the Central Tax and Central Excise, initially he was posted in Bangalore as Tax Assistant on 8.4.2009 and later, on inter-Commissionerate transfer, he was posted in Kochi on 4.12.2010. Thereafter, on request, he was transferred to Thrissur on 28.12.2010. It is evident that, meanwhile he was promoted as Inspector and continued in Thrissur till 30.6.2017 when he was transferred to the Appeals Commissionerate in Kochi. At that time, on his representation, he was transferred to Guruvayoor on 30.6.2017 and on completion of two years tenure, he was posted in Aluva, in 2019. Evidently, that station tenure was four years. Before completion of even two years, considering the fact that there were difficulties due to Covid Pandemic and on his own request, he was transferred to Thrissur. That means, during major share of his tenure in the Department of Excise and Customs, he had been serving in Thrissur, his native station. On being transferred to Aluva under Annexure A-1 order, three grounds have been raised challenging the same. According to him, he has been shifted against the tenure norms, he is due to retire in May 2024 and on medical grounds.

After hearing counsel on both sides, perusing the official profile, and having regard to the laid down principles of law touching the subject, I am not inclined to interfere with the order under challenge. It is true that he is due to retire in May 2024 and there is a provision in both Annexure A-2 and Annexure R1(a) that, as far as possible, persons who are on the verge of retirement, within a period of two years, will be given home station postings in a place of his choice. But there is no hard and fast rule that such a rule should be rigorously followed.

It is also the settled proposition that transfer is an incident of service and one cannot claim a particular station as a matter of right. Except from 28.12.2010 till 30.6.2017, he had been working in his native place in Thrissur, continuously for six and half years. Even during the Covid pandemic on 28.9.2020, he was again transferred to Thrissur from Aluva. He has put in more than 13 years of service in this Department. Apart from the first spell from 28.12.2010 to 30.6.2017, from 28.9.2020 till day, for more than 2 ½ years, he is working in Thrissur. Moreover, for about two years he had been in Guruvayoor, which is also in Thrissur district. That means during major share of his career in the Central Excise Department, he had been serving in Thrissur. On the mere reason that for the present, station tenure is not completed, therefore, such an order cannot be interdicted.

After all, distance between Thrissur and Aluva is hardly 60 kms. The places are well connected through rail and road. It is convenient for a person residing in Thrissur to daily commute between the places and discharge his duties, if the Rules permit. It is true that medical ground has been stated in Annexure A-3. Still, it does not seem that there are serious medical issues for the applicant to continue in Thrissur.

It is settled by the authorities that the scope of judicial review in such matters is rather limited. Unless the transfer is shown to be an outcome of a malafide exercise of power or violative of any statutory domains, the Court or Tribunal cannot interfere with the same as a matter of course. It is for the employer to decide who should work where. Any allegation of malafide should be based on the firm foundation of facts, pleaded and established. The applicant has transfer liability to work anywhere within the Commissionerate. When the interests of the organisation and the inconveniences of the employee are considered, the former should prevail. Therefore, the balance of convenience also is against the contentions of the applicant.

Here, the respondents have reiterated that he has been transferred to Aluva on administrative grounds, the correctness of which cannot be probed into by the Tribunal. The fact that there are vacancies of Inspectors in Thrissur, that some of the officials were allowed to continue in particular station for long etc. are not good grounds to interfere with the order under challenge.

In my reading, the Original Application lacks merit and is accordingly dismissed. The interim order shall stand vacated. No costs.