1971 (5) TMI 74 - HC - Service Tax

Summary

Issues Involved:
1. Legality of the transfer of a government servant.
2. Whether the transfer constituted removal or reduction in rank under Article 311(2) of the Constitution.
3. Whether the petitioner had a lien on the post of Director of Revenue Intelligence.
4. Whether the transfer was made in bad faith.

Detailed Analysis:

1. Legality of the Transfer:
The court examined the power of the Government to transfer a government servant under Article 310 and Fundamental Rule 15. The petitioner, a member of the Indian Customs and Central Excise Service Class I, was transferred from the post of Director of Revenue Intelligence to Collector of Customs. The court noted that the administration of services can be carried out through executive instructions even in the absence of statutory rules. The court emphasized that the transfer was within the range of transferability as the post of Director of Revenue Intelligence was not an ex-cadre post. The court concluded that the transfer was legal under the general rule provided by Fundamental Rule 15, which allows the Government to transfer a government servant from one post to another.

2. Removal or Reduction in Rank under Article 311(2):
The court distinguished between removal from service and removal from a post. It was noted that the petitioner did not have a lien on the post of Director of Revenue Intelligence, and his transfer did not amount to a removal from service. The court held that the transfer did not constitute a reduction in rank as both the posts of Director of Revenue Intelligence and Collector of Customs were of the same rank, carrying the same scale of pay. The court referred to the principle that rank in government service is determined by pay scales and classifications, and any transfer within the same rank does not amount to a reduction in rank.

3. Lien on the Post of Director of Revenue Intelligence:
The court analyzed whether the petitioner had acquired a lien on the post of Director of Revenue Intelligence. It was concluded that the petitioner was only officiating in the post and did not have a substantive appointment. The court referred to the Fundamental Rule 12(b) which states that a government servant cannot hold a lien on more than one permanent post at the same time. The court found that none of the previous occupants of the post had acquired a lien on it, and the petitioner's name continued to appear in the seniority list of the Indian Customs and Central Excise Service Class I, indicating that he did not hold a lien on the post of Director of Revenue Intelligence.

4. Bad Faith in Transfer:
The court addressed the petitioner's claim that the transfer was made in bad faith. It was noted that the transfer was made to maintain the decorum in administration and was not intended as a punishment. The court found that the Government acted in good faith and without any improper motive. The approval for the transfer was obtained from both the Minister of Finance and the Prime Minister, who was in charge of the Ministry of Home Affairs at the time. The court dismissed the allegations of bad faith and improper motive.

Conclusion:
The court dismissed the writ petition, concluding that the transfer of the petitioner was legal, did not constitute removal or reduction in rank under Article 311(2), and was made in good faith. The petitioner did not have a lien on the post of Director of Revenue Intelligence, and the transfer was within the range of transferability as per the relevant rules and regulations.