9911796707
TMI Blog1971 (5) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... ) in R. Pershad v. Union of India; (Civil Writ 358 of 1968 decided on 31-5-1958(1). In the seniority list of officers holding the posts of Collectors of Customs and/or Central Excise on 1st April 1959 (Annexure R-1 to the counter affidavit of the Government) the petitioner stood as No. 24. In the revised seniority list of all the officers included in the initial constitution of the Indian Customs and Central Excise Service Class I who were in position on 7th April 1970, the petitioner was shown as No. 16. On 30-8-1967 the President was pleased to order that the petitioner, an officer of the Indian Customs and Central Excise Service, Class I then posted as Collector of Central Excise, Allahabad "be transferred and posted as Director of Revenue Intelligence, New Delhi". The petitioner assumed charge of the post of Director of Revenue Intelligence on 19-9-1967. (3) In April 1970 a telegram was received by the Director-General. Revenue Intelligence with a copy of the Chairman of the Central Board of Excise and Customs pointing out that the petitioner with his family was staying with a person who was previously a notorious smuggler having been convicted as such. It was also a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Article 309 of the Constitution. In the absence of such legislation the President could also frame rules to do so under the proviso to Article 309. But neither any such legislation nor any such rules exist. The formation of the Indian Customs and Central Excise Service Class I was itself brought about by purely executive action. It is well-established that the administration of service by the Government of India can be carried on by executive instructions and executive action even though no statute or statutory rules may have been made. (6) The distinction between the personnel forming a Service and the posts which may be manned by the members of such a Service has to he noted at the outset in this case. The petitioner along with others belong to the Indian Customs and Central Excise Service Class 1. The members of this Service stood in relation to each other in a particular order of seniority. There was no statute or rules, however, restricting the appointments of the members of the Service to any particular post. Initially the officers of the Collectorate of Customs and Excise working under the Ministry of Finance, Department of Revenue, used to do all the work relating to cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as well as of the Directorates of Inspection and Revenue Intelligence. These three units form one whole working under the Board and the Ministry. This position is reflected in the following documents:- (1)The Central Civil Services [Revised Pay Rules, 1960 (Annexure R xiv)] have a Schedule in which the various posts which could be manned by the Central Civil Services are shown with the emoluments attached to those posts. In this Schedule section 10 forms the Ministry of Finance (Department of Revenue). Sub-section 2 gives the posts in the Customs Department Sub-section 3 in the Central Excise Department; Sub-section 7 in the Directorate of Inspection (Customs and Central Excise); Sub-section 11 in the Directorate of Inspection (Investigation Wing) and Sub-section 12 in the Directorate of Revenue Intelligence. The posts in the Collectorates were directly under the Department of Revenue, Ministry of Finance. (2) The List of Officers of the Central Board of Revenue and Indian Revenue Service as on 1st October 1961 is a Government publication. This brings out the fact that the Government had at one time (in 1954) intended to merge not only the Customs and Central Excise but also the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Directorates of Revenue Intelligence and Inspection was regarded as an ex-cadre post vis-a-vis the appointments of the officers of Indian Customs and Central Excise Service, Class I, to those posts. This is to be contrasted with the fact that those officers who were holding ex-cadre posts of Joint Secretary or equivalent were specifically shown in this list of 7th April 1970 to be occupying ex-cadre posts by asterisks marked against their names. The conclusion is irresistible, Therefore, that the posts in the Directorate of Revenue Intelligence and Inspection including the post of Director of Revenue Intelligence was not an ex-cadre post, in the sense that it as outside the ordinary range of transferability for an officer of the Indian Customs and Central Excise Service, Class I. The Department of Revenue consisting of the three branches of the Income Tax, Customs and Central Excise, and the Chemical Service, Class I, is itself a Service or a cadre functioning as one department. The post of Director of Revenue Intelligence belongs to one unit of this department. But since all the three units constitute one department the posts of one unit were not regarded as ex-cadre posts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Intelligence was created only by executive action and not by any statue or statutory rules. This was why orders of 1957 could be modified by the orders of 1960 and 1965 administratively. Just as there were no rules governing the appointments to the posts in the Collectorates of Customs and Central Excise, there were no rules governing the appointments in the Directorate of Revenue Intelligence. This was why the transfers from the Collectorates to the Directorate and vice versa were freely made without any question of acquisition of lien by any officer on any post in the Directorate, arising (13) Apart from the general administrative power of the Central Government to transfer a member of the Indian Customs and Central Excise Service Class I to a post in the Directorate of Revenue Intelligence, Fundamental Rule 15 specifically gives the power of transfer to the Government in the following words :- "15.(a) Governor General in Council may transfer a Government servant from one post to another; provided that, except- (1) on account of inefficiency or misbehavior. or (2) on his written request, a Government servant shall not be transferred substantively to, or, except in a case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not being recruited to any service but is being appointed to only one post, then the range of his transferability would be restricted. In Dr. Prem Beharilal Saksena v. Director of Medical and Health Services, Lucknow, AIR1959All629 , the petitioner was recruited through the Public Service Commission specifically for the post of an Anaesthetist in a State hospital in the district of Kanpur. He was confirmed as an Anaesthetist in the Ursla Horsman Memorial Hospital, Kanpur. His representation that he should be made a member of some Health service was turned down. In these circumstances it was held that he could not be transferred to the post of an (17) Anaesthetist to another hospital at Varanasi. But in the present case. the petitioner has been recruited to the Customs and Central Excise Service. He is a member of the Indian Customs and Central Excise Service. Class 1. The Collectorates of Customs and Central Excise formed one of the three branches of the Indian Revenue Service or the Department of Revenue, Ministry of Finance. The other two branches, namely, Directorates of Inspection and Revenue Intelligence, have been carved out of the Collectorates of Customs and Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of removal from a post as distinguished from removal from service. If the person had a right to hold the post from which he was transferred and the transfer was illegal, he may be entitled to the protection of Article 311(2) on the ground that he was removed contrary to Article 311(2). In the present case, however, the transfer of the petitioner was within the range of transferability and Therefore the petitioner cannot be said to have been removed from the post of the Director of Revenue Intelligence. The plea that he was so removed is also negatived by other reasons such as that he did not have any lien on the post of Director of Revenue Intelligence etc., which would be considered later while dealing with the question whether the petitioner was reduced in rank by the impugned orders of transfer. (20) It is not the case of the petitioner that he was substantively transferred to the post of a Collector of Customs on 27-7-1970. It is well-known that very few officers of the Indian Customs and Central Excise Service, Class I, have been confirmed as Collectors- Many officers senior to the petitioner have yet to be confirmed. The petitioner could not, Therefore, be substantively tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expressly decided by the President in the memorandum dated 29th April 1960 at Annexure E of the writ petition which stated that "in partial modification of the orders conveyed in para 2 of this Ministry's letter No. l(51)/57-Ad. IV, dated 4th December, 1957, the President has been pleased to decide that the post of Director of Revenue Intelligence should carry the prescribed scale of pay of Collector of Central Excise/Customs (22) Grade I, viz., ₹ 1800-100-2000, plus a special pay of ₹ 250.00 p.m. with effect from 31st December, 1959 and until further orders." THIS was further confirmed by the memorandum dated 20th July 1965 at Annexure EE of the writ petition slating that "in supersession of all the existing orders on the above subject, the President has been pleased to decide that the scales of pay of the following posts shall with effect from 1st June 1965 be as given below:- Designation of post Scale 1. Director of Inspection, Customs & Central Excise. 2. Director of Revenue Intelligence, ₹ 1800-100-2000- 125-2250. 3. Collector of Customs and Central Excise, 4. Narcotics Commissioner. 5. Additional Collectors of Customs and Central Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iderations other than the pay specially because these considerations have already been taken into account by the Government in fixing the pay or the pay-scale of a particular post. In K. Gopaul v. Union of India and others 1947 3 S.C.R. 627. the petitioner was transferred from the post of Inspector General of Registration to the post of Accommodation Controller. In the former post, he was the head of a department while in the latter post he was not so. It was urged by him that he was, Therefore, reduced in rank. The Supreme Court, however, rejected this contention with the following observation at page 632 :- "THE rank in Government service does not depend on the mere circumstance that the Government servant, in the discharge of his duties, is given certain powers." (24) In the High Court, Calcutta v. Amal Kumar Roy, [1963]1SCR437 , the loss of seniority by some places in the same grade of service was not regarded as reduction in rank. In State of Punjab v. (25) Shri Kishan Das, (1971)ILLJ271SC , Shelat, J., carefully reviewed the existing case-law on the meaning of "reduction in rank" and concluded that the expression "reduction in rank" in Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue Intelligence has territorial jurisdiction all over India while each of the Collectorates is restricted to the area of a state or some such lesser area, Here again, the jurisdiction of the Collectors over a lesser area extends to larger amount of work while the jurisdiction of the Directorate of Revenue Intelligence) though extending all over India, is restricted only to one specialised kind of work, namely Revenue Intelligence. (4) None of the officers who had preceded the petitioner in the post of Director of Revenue Intelligence came back as a Collector of Customs or Central Excise. He either retired or was promoted as a Member of the Central Board of Excise and Customs. The first occupant was Shri Burman who retired as Director of Revenue Intelligence. The second occupant was Mr. T. C. Seth who was promoted. The third occupant was Shri Jagjit Singh who was also promoted. The fourth occupant was Shri Koruthu who retired. But the fifth occupant was Shri Ramachandran who was only a Deputy Director of Revenue Intelligence and was promoted in a leave vacancy but was reverted back as Deputy Director of Revenue Intelligence after Shri Koruthu returned from leave. The last incumbent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the post within the meaning of Fundamental Rule 9(13). The probationer does not get a title to hold the post. In the present case, no such distinction is involved. The question whether the appointment to a post is permanent, officiating or temporary would, of course, be primarily decided in accordance with the terms contained in the order of appointment. When the order of appointment is however silent as to the nature of the tenure of the appointee then the tenure has to be decided in the light of the other evidence available on the record. The evidence in the present case is as follows :- (1)The petitioner and officers senior to him in the Customs and Central Excise Service, Class I, were only officiating in the posts of Collector of Customs and Central Excise. They were only confirmed as Assistant Collectors of Customs and Central Excise. If the Government had intended that the petitioner should supersede the other unconfirmed Collectors senior to him and the petitioner should be permanently appointed as the Director of Revenue Intelligence, then the appointment of the petitioner would have been in the nature of supersession of his senior colleagues. The original file of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for that post was officiating or permanent. But if the transfer of Shri T. C. Seth as Director of Revenue Intelligence was intended to be permanent, then Shri T. C. Seth would have acquired lien on the post of Director of Revenue Intelligence and would have lost his lien on the post of the Collector. But the order dated 5th January 1960 describes Shri Seth as u permanent Collector indicating thereby that he continued to be a permanent Collector and did not become a permanent Director of Revenue Intelligence. This shows that a transfer order phrased like the transfer order of the petitioner did not result in Shri Seth acquiring a lien on the post of the Director of Revenue Intelligence. (3) By order dated 12th March 1965 (Annexure R IX) the President was pleased to order that Shri Jasjit Singh. Collector of Customs and Central Excise. Grade I, be transferred and posted as Director of Revenue Intelligence. Shri Jasjit Singh was not stated to be a permanent Collector. If his appointment is regarded as a permanent appointment as the Director of Revenue Intelligence then he acquired a lien on that post. It is not shown that he was confirmed in any other post later. He was in service aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Cabinet never arose as the appointment of the petitioner was not regarded as a promotion or a substantive appointment in supersession of his colleagues. (6) Lastly, if the petitioner had really acquired a lien on the post of the Director of Revenue Intelligence which was a post outside the cadre of Indian Customs and Central Excise Service, Class 1. then the name of the petitioner would have been removed from the list of officers Constituting the Indian Customs and Central Excise Service. Class I. But we find that the name of the petitioner is still shown in the said list as it was on the 7th of April 1970 in Annexure R-J (page 2) attached to the counter-affidavit of the Government. In the same way. the names of Shri Jasjit Singh and Shri Ramachandran who had also held the post of the Director of Revenue Intelligence are also shown in the list of the officers of the Indian Customs and Central Excise Service, Class I, who were in position on 7th April 1970, This shown that none of these officers went out of the Service simply because none of them acquired a lien on the post of the Director of Revenue Intelligence. As the petitioner had not acquired a lien on the post of the Dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n act involving civil consequences against the petitioner. For, it was in the routine course of administration. The petitioner had no right not to be transferred and, Therefore, he could not even insist that he should be given a hearing before he is transferred. In Union of India v. Col. J. N. Sinha, (1970)IILLJ284SC , the Supreme Court held that the petitioner who did not have a right to continue in service beyond the age of 55 could not insist that he should be heard before the Government retired him by three months' notice. The same reasoning would apply in this case and the petitioner, Therefore, could not insist that he should have been heard before he was transferred though, in fact, he was heard by the Chairman of the Central Board of Excise and Customs inasmuch as the Chairman ascertained from the petitioner what he had to say about the allegations made against him in the telegram received by the Government in April 1970. (30) Secondly, the transfer has to be viewed from one post to another post of the same rank. For, we have already given reasons above to show that the post of Director of Revenue Intelligence was of the same rank as the post of a Collector of Customs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sworn an affidavit in which it is stated that the orders of the transfer of the petitioner issued on 27-7-1970 were issued after the approval not only of the Minister of Finance but also of the Prime Minister who was in-charge of the Ministry of Home Affairs was obtained. We have also verified this fact from the original Government file produced before us at the instance of the petitioner. This point was not, Therefore, pressed by the learned counsel for the petitioner. Similarly, the learned counsel for the petitioner made it clear that the petitioner had full faith in Shri D. P. Anand, Chairman of the Central Board of Excise and Customs. As the transfer of the petitioner was dealt with by Shri Anand himself and as the counter-affidavit has also been sworn by Shri Anand himself the learned counsel for the petitioner did not press the allegation that the transfer of the petitioner was made in bad faith. We ourselves are fully satisfied that the Government acted in good and without any improper motive in transferring the petitioner in view of the admission by the petitioner of some of the allegations contained in the telegram received by the Government in April 1970. (32) The tra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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