Holding

The transfer order was valid as an incident of service exercised by the Chief Commissioner under the Board’s circular of 16 Jan 2003, and the petitioner had no cause of complaint.

Summary

Prabir Banerjee, a Group‑B Superintendent in the Central Excise Department, was transferred from the Bhopal zone to the Nagpur Commissionerate under an office order. He challenged the transfer, arguing that circulars dated 19 Feb 2004 and 9 Mar 2004 prohibited inter‑zonal transfers, making the order void. The Central Administrative Tribunal dismissed his claim, and the Madhya Pradesh High Court upheld the transfer, holding that transfer is an incident of service and granting leave to make a representation. On appeal, the Supreme Court examined whether the Chief Commissioner of Central Excise (Bhopal) had authority to effect the inter‑zonal transfer and whether the later circulars were relevant. The Court held that transfer is indeed an incident of service, the transfer order was valid as it was issued under the Board’s circular of 16 Jan 2003, and the 2004 circulars had no bearing on the issue. Consequently, the Supreme Court dismissed the Special Leave Petition, leaving the High Court’s order undisturbed.

Issues considered

Whether the Chief Commissioner of Central Excise (Bhopal) was competent to transfer a Group‑B officer from the Bhopal zone to the Nagpur zone despite circulars prohibiting inter‑zonal transfers.
Whether the circulars dated 19 Feb 2004 and 9 Mar 2004 are relevant to the validity of the transfer order.
Whether a transfer in an All‑India service is an incident of service that can be challenged under Articles 226/227 of the Constitution.

Legislation cited

Central Excise Act, 1944
Central Excise Rules, 2002s. Rule 3(2)
Constitution of Indias. Article 226, s. Article 227

Subjects

TransferInter‑zonal transferCentral ExciseAll India ServiceCadre Controlling AuthorityService lawAdministrative decisionCircularsSpecial Leave Petition

Judgment

A PRABIR BANERJEE ~
1

v.
UNION OF INDIA AND ORS

OCTOBER 5, 2007
B
[ALTAMAS KABIR AND D.K. JAIN, JJ.]

':'_\.
Service Law:
Central Excise Rules, 2002; r.3(2)
c
Circulars dated 16.1.2003, 19. 2. 2004 and 9. 3. 2004 issued by the
Central Board of Excise and Customs:
Transfer-Issuance of Transfer order by Cadre Controlling
Authority transferring petitioner and others from one zone to another-
D
Application filed against the transfer order was dismissed by Central
Administrative Tribunal-Challenge to-Disposed of by High Court
with leave to petitioners to submit a representation to the competent
authority-On appeal, held: Petitioner was transferredfrom one zone
to another in terms of the transfer order passed by the competent
E
authority under powers vested in him by the Board in terms ofCircular
dated 16.1.2003-Neither of Circulars dated 19.2.04 and 9.3.04, as
relied on by both the parties, have any bearing to the main issue-
Transfer is' an incident of service in All India Service-Controlling
authority was competent to transfer the petitioner under the Central >----
F Service Rules-Though, the decision as conveyed in terms of the
Circulars was an administrative decision but in the absence of any
direct rule pertaining to transfer, the administrative instructions would
have to be implemented-Petitioner has neither pleaded nor shown
that the decision ofthe Board in authorizing Nagpur Commissionerate
G as Cadre Controlling Authority has since been rescinded or altered- .4,

In such circumstances, it is not appropriate to interfere with the
judgment/order of the High Court in exercise of writ jurisdiction-
Constitution of India, 1950-Articles 226 and 227.

H 694
PRABIRBANERJEEv. UNIONOFINDIA 695

Petitioner was working as Superintendent, a Group 'B' post in A
the Central Excise Department, Bhopal. On 19.2.2004, the
Department of Revenue, issued a circular discontinuing inter-
Commissionerate transfers of Group B, C and D employees. Even
with regard to the cases where requisitions were made on extreme
compassionate grounds such transfers could be allowed on B

,. deputation basis for a period of3 years only subject to the approval
of the Transferor and Transferee Cadre Controlling authorities.
Subsequently, another Circular dated March 9, 2004 was issued by
the Department clarifying that inter-Commissionerate transfers
amongst the Commissionerates having common cadre, where there C
was no loss of seniority, could be allowed to continue as before.
Pursuant to the promulgation of the aforesaid circulars the petitioner
and others were transferred from the Indore Commissionerate to
the Nagpur Commissionerate. The order was challenged by the
petitioner and others before the Central Administrative Tribunal on D
the ground that inter-zonal transfers were not permitted in terms of
the Circular dated March 9, 2004. The application was dismissed
by the Tribunal. Aggrieved petitioner filed a writ petition before the
High Court. The petition was disposed of by High Court holding that
transfers made in administrative exigencies or in public interest or E
for smooth functioning of the system did not warrant any interference
under Articles 226 and 227 of the Constitution oflndia and granted
leave to the petitioners to submit a representation to the competent
authority. Hence the present Special Leave Petition filed by one of
the petitioners. F

Petitioner-employee contended that both the Tribunal as well
as the High Court failed to appreciate the main plank of challenge
made on behalf of the employees that inter-zonal transfers have been
prohibited and since the Nagpur zone was a separate zone from the
Bhopal zone the transfer order had been made in violation of the G
policy of transfer; that instead of deciding the main issue raised on
behalf of the employees, the High Court went into a broader issue
regarding transfer being an incident of service under the Central
Service Rules; that the said principle would not apply in this case in
H
·~
696. SUPREME COURT REPORTS [2007] 10 S.C.R.

A view of the existence of definite instructions issued by the Board in ._,(
this regard; that the High Court appears to have missed this aspect '
of the matter, had relied solely on several decisions of this Court in
arriving at the conclusion that the employee would only be entitled
to make a representation to the competent authority against the
B orderoftransfer.
Additional Solicitor General on behalf ofrespondents submitted
that services under the Department of Revenue was an All India
Service wherein transfer was an incident of service to which the
petitioner could not legitimately object; that pending decision on the
C demand for bifurcation of group 'B' and 'C' cadres relating to
Nagpur and Indore Collectorates it had been decided that cadre
control of the said two Collectorates would be distributed between
the two Collectors of Nagpur zone and Indore zone; that the Collector
of Central Excise of the Nagpur zone was made the Cadre
D Controlling Authority of Group 'B' and 'C' employees belonging to
the Ministerial cadre whereas the Collector of Central Excise,
Indore, was made the Cadre Controlling Authority in respect of
Group 'B' and 'C' officers in the executive cadres; thatthe statutory
Jurisdiction is distinct from the jurisdiction ofthe Chief Commis,sioner
E as Cadre Controlling Authority which had been defined separately
by way of administrative instru.ctions. While the statutory jurisdiction
of the Chief Commissioner, Bhopal under the Central Excise Act
extended to the three Commissionerates of Bhopal, Indore and
Raipur, the Chief Commissioner, Bhopal, was designated as the
F Cadre Controlling Authority for the combined cadre of Grade 'B'
and 'C' of four Commissionerates; that since the jurisdiction of a
Chief Commissioner as a Cadre Controlling Authority has not been
defined or circumscribed by any notification issued under Rule 3(2),
administrative instructions issued from time to time would have to
G be followed in the absence of such statutory rules, as had been done
in the instant case; that the High Court had not committed any error
in relying on the principle that in Central Government Service
transfer was an incident of service and an employee was not enti~led
to question the impugned order of transfer on such ground; and that
H
PRABIRBANERJEEv. UNIONOFINDIA 697

> since the transfer order had been issued by the Cadre Controlling A
Authority, such order was made validly and could not be interfered
with on the ground of lack of jurisdiction.
Dismissing the Special Leave Petition, the Court
HELD: 1.1. While transfer is an incident of service under the B
Central Service Rules, the petitioner has no cause to complain in
..__-· respect of the transfer order by which he was transferred from the
Bhopal zone to the Nagpur zone, as the same had been passed by
the Chief Commissioner of Central Excise, Bhopal zone, under
powers vested in him by the Board by its Circular dated 16.1.2003. C
[Para 20] [706-H; 707-AJ
1.2. Neither of the two circulars issued by the Central Board
of Excise and Customs have any bearing and/or relevance to the
issues raised in the instant case where the central question is whether D
the Chief Commissioner of the Bhopal Commissionerate was
competent to transfer the petitioner to a Commissionerate of a
different zone, namely, Nagpur, except to the extent of indicating
that inter-Commissionerate transfers between Commissionerates
having a common cadre would be allowed to continue. E
[Para22] [707-F-G]
2.1. This Court is alive to the fact that the decision taken by
the Board was an administrative decision, but in the absence of any
direct Rule relating to transfer between two Collectorates under the
Central Board of Excise and Customs, the said administrative F
instruction would have to be implemented insofar as inter-
Collectorate transfers between the Nagpur and Indore Cadre was
concerned. In fact, by subsequent circular dated 16.1.2003 the Board
further declared that the Chief Commissioner of Central Excise/
:1---
Customs in a Commissionerate would be the Cadre Controlling G
Authority up to Group 'B' level staff, and its functions would include
monitoring the implementation of the Board's instructions with
regard to the transfers and equitable distribution of man-power and
material resources between the Commissionerates/zones.
[Para 23] [708-C-E] H
698 SUPREME COURT REPORTS [2007] 10 S.C.R.

A 2.2. By virtue of the Circular dated 24.8.2004 the Collector of ~
Central Excise, Indore, had been made the Cadre Controlling
Authority of executive cadres belonging to Group 'B' and 'C' of
the Nagpur and Indore Collectorates, which empowers the Chief
Commissioner of the Bhopal zone to exercise control over the cadre
B both in respect of the three Commissionerates comprising the
Bhopal zone as also the Commissionerate of Nagpur falling within
the Nagpur zone. It has neither been pleaded nor has it been shown .. _..
before this Court that the decision of the Board as contained in the
said circular of24.8.1984 has since been rescinded or altered and
c that the Chief Commissioner of the Bhopal zone is no longer the
Cadre Controlling Authority of the Nagpur Commissionerate. In
such circumstances, although the High Court has proceeded mainly
on the basis that in the Central Services transfer is an incident of
service and has not really dealt with the various circulars on the
D subject, this Court is not inclined to interfere with the judgment and
order of the High Court disposing of the writ petition. >--·
[Paras 24 and 25] (708-F -H; 709-A, B]
CIVIL APPELLATE JURISDICTION : Special Leave Petition (C)
E No. 20706 of 2006.
From the Judgment and Order dated 14.09.2006 of the High Court
of Madhya Pradesh, Bench at Indore in W.P. No. 3622 of2005.
Dr. Abhishek M. Singhvi and Mukul Rohatgi, Sanjeev Sachdeva >--
F and Amit Bhandari for the Appellant.
B. Datta, ASG., T.V Ratnam and B. Krishna Prasad for the
Respondents.
The Judgment of the Court was delivered by
G ALTAMAS KABIR, J. 1. The petitioner in the instant special leave
petition was one of two petitioners who had filed writ petition No. 3622
of 2005 in the High Court of Madhya Pradesh, Indore Bench, calling in
question the legal propriety of an order dated 13.9.2005 passed by the
Central Administrative Tribunal, Jabalpur Bench, in O.A.No. 6002/2005.
H
/

}
PRABIRBANERJEE v. UNION OF INDIA 699
[ALTAMASKABIR,J.]
>- The writ petitioners had approached the Tribunal for quashing of the order A
of transfer by which they were transferred from Indore to Nagpur. The
challenge to the order of transfer was made on the ground that inter-zonal
transfer was prohibited in the Department of Central Excise and Customs
and hence the impugned transfer order was void and was liable to be
quashed. B
2. In order to appreciate the case made out by the writ petitioners
._: · before the High Court it will be necessary to set out a few facts relating
to the case.
3. Appearing for the petitioner Prabir Banerjee, Mr. Mukul Rohtagi, c
learned Senior Advocate submitted that the petitioner had been appointed
as Inspector, Central Excise, in 1982; Subsequently, in 2003 he was
promoted to the post of Superintendent under the Bhopal zone which
comprised of the Commissionerates of Bhopal, Indore and Raipur. On
19.2.1994 the Department of Revenue in the Ministry of Finance, D
Government oflndia, issued a circular addressed to amongst others all
the Chief Commissioner of Central Excise containing certain instructions
regarding the discontinuance of inter-Commissionerate transfers. Since
much of the submissions made in this matter revolve around the said
circular, the same is reproduced hereinbelow: E

"F.No. A 22015/03/2004 AD IIIA
GOVERNMENT OF INDIA
MINISTRY OF FJNANCE
DEPARTMENT OF REVENUE F
New Delhi, the 19th February 2004
To
All Chief Commissioner of Customs,
All Chief Commissioner of Central Excise,
G
All Commissioner of Customs,
All Commissioner of Central Excise,
All Directors General/ Directors
Commissioner, Central Bureau of Narcotics,
H
700 SUPREME COURT REPORTS (2007] 10 S.C.R.

A Gwalior -\
(all by name).
·Subject : Inter Commissionerate Transfers -Issuance of
Instructions -regarding their discontinuance etc.

B Sir/ Madam,

It would be recalled that hither to inter-Commissionerate
transfer (i.e. transfer from one cadre controlling authority to another)
of Group 'B', 'C' and 'D' employees were taking place on
compassionate grounds. These powers had been delegated to the
c Head of Departments subject to the conditions laid down in F.No.
A22015/34/8-0-Ad III B dated 20.5 .1980. Since inter-
Commissionerate transfers have caused certain administrative
difficulties resulting in protracted litigation, the matter has been
reviewed by the Board in detail.
D
Accordingly, in supersession of all the previous instructions
issued on the subject in the past, it has been decided that hence
forth no inter-Commissionerate transfer shall be allowed for any
Group B, C and D employee. Instead, in exceptional circumstances
E depending upon the merits of each case where it is considered
necessary to accept such requests on extreme compassionate
grounds, such transfers shall be allowed on deputation basis for a
period three years subject to the approval of the transfer and
transferee cadre controlling authorities. Further extension of
F depuration period can be ma\ie up to one year by the
Commissioner and for a further period of one year by Chief
Commissioners concerned on mutually agreed basis. Such transfers
shall be with the specific condition that no deputation allowance
shall be admissible for deputation period including extended period,
G ifany. Where ever required, necessary amendments in recruitment
rules are under approval and shall be issued subsequently.

This issues with the approval of the Board

Receipt of these instructions may please be acknowledged.
H
PRABIRBANERJEEv. UNIONOFINDIA 701
[AL TAMAS KABIR, J.]
Yours faithfully, A
Sd/-
(S.K. Thakur)
Under Secretary to the Govt. oflndia" B
4. From the said circular it will be seen that the Board after reviewing
~:· the existing policy relating to inter-Commissionerate transfers took a
decision whereby in supersessiori. of all the provisions /instructions issued
on the subject in the past, no inter-Commissionerate transfer would
thenceforth be allowed for any Grade B, C and D employee. Even with C
regard to the cases where requisitions were made on extreme
compassionate grounds such transfers could be allowed on deputation
basis for a period of3 years subject to the approval of the Transfer and
Transferee Cadre Controlling authorities. As indicated hereinbefore the
petitioner was promoted to the post of Superintendent in 2003, which is D
a 'B' category post.
5. The said circular was subsequently amepded by another Circular
issued by the Department of Revenue on 9th March, 2004 which is
reproduced hereinbelow: E
"F.No. A 22015/03/2004 AD IIIA
GOVERNMENT OF INDIA
MINISTRY OF FINANCE
DEPARTMENT OF REVENUE
F
New Delhi, the 9th March, 2004
To
All Chief Commissioner of Customs,
All Chief Commissioner of Central Excise,
All Commissioner of Customs, G
All Commissioner of Central Excise,
All Directors General/Directors
Commissioner, Central Bureau of Narcotics,

H
~·--
702 SUPREME COURT REPORTS [2007] 10 S.C.R.

A Gwalior ~
(all by name)
Subject : Inter Commissionerate Transfers-Issuance of
Instructions-clarification regarding.
B Sir/ Madam,
I am directed to refer to this office circular of even number
dated 19 .2 .2004 on the subject cited above and to say that some
references have been received seeking clarification regarding inter-
Commissionerate transfers within the same zone. It is therefore,
c clarified that inter-Commissionerate transfers amongst the
Commissione,rates having common cadre where there is no loss
of seniority involved, may be allowed to continue as hitherto.
This issues with the approval of the Board
D
Yours faithfully,
Sd/-
(S.K. Thakur)
E Under Secretary to the Govt. oflndia"
6. By virtue of said amendment it was clarified that inter-
Commissionerate transfers amongst the Commissionerates having common
cadre, where there was no loss of seniority, could be allowed to continue
p as before.
7. Pursuant to the promulgation of the aforesaid circulars an order,
being Office Order No.112005 dated 31.3.1995 was issued by the Chief
Commissioner of Customs and Central Excise, M.P. and Chhattisgarh
States, whereby along with 55 other officers the petitioner was transferred
G from the Indore Commissionerate to the Nagpur Commissionerate. It is
this order which was challenged by the petitioner and others before the
Central Administrative Tribunal on the ground that although inter-
Commiss!onerate transfers were permitted the same did not permit the
authorities to also effect inter-zonal transfers which had been prohibited.
H
PRABIR BANERJEE v. UNION OF INDIA 703
[ALTAMAS KABIR, J.]
8. After considering the submissions made on behalf of the respective A
parties and the various circulars issued by the Central Board of Excise
and Customs, and in particular the Circular/instructions dated 10th
September, 1990, which provides for common cadre of Superintendents
of the Bhopal and Nagpur Commissionerate under the Chief
Commissioner, Bhopal, as the Cadre Controlling Authority, the Tribunal B
dismissed the application filed by the petitioner herein.
9. As mentioned hereinabove the said order of the Central
Administrative Tribunal was impugned by the petitioner herein along with
one Mahender Singh by filing Writ Petition No.3622/05 before the High C
Court of Madhya Pradesh, Indore Bench.
10. During the hearing of the writ petition the main submission made
on behalf of the writ petitioner was that transfer from one zone to another
zone was prohibited by the Department itself and the impugned transfer
order being in violation of the declared policy of the Department was liable D
to be quashed. On the other hand, the order of the Tribunal was strongly
supported by the respondents on the ground that inter-zonal transfer was
permitted, inasmuch as, constitution of a zone was for the purpose of
revenue and had nothing to do with transfer which is an incident of service.
It was also urged on behalf of the respondents that even if the petitioners E
were transferred to the Nagpur zone their seniority would not be affected
many way.
)

---1 11. Having regard to the submissions made the High Court observed
that the grievance of the petitioners was based on the apprehension that F
their seniority would be affected. However, relying on the decisi~n of this
Court in the case of Shilpi Bose v. State of Bihar AIR (1991) SC 532,
the High Court ultimately came to the conclusion that transfers made in
administrative exigencies or in public interest or for smooth functioning
of the system did not warrant any interference under Articles 226 and
227 of the Constitution of India. Several other decisions on the same issue G
were also referred to and the writ petition was disposed of with leave to
the petitioners to submit a representation to the competent authority within
a period of four weeks from the date of the order, with a further direction
that the said representation was to be disposed of within a period of four
H
704 SUPREME COURT REPORTS [2007] 10 S.C.R.

A weeks from the date ofreceipt of the same.
12. Since the main contention of the writ petitioners was that inter-
zonal transfers were not permitted by virtue of the policy of the Central
Board of Excise and Customs, the High Court, instead of adverting to
B the said issue went into a separate issue regarding transfer in Central
Government services wherein transfer is an incident of service and wrongly
permitted the petitioners to file representation before the Department against
the order of transfer under challenge.
13. Aggrieved by the order of the High Court one of the petitioners,
C namely, Prabir Banerjee, has filed this special leave petition on the same
grounds as urged before the Tribunal and reiterated before the High Court.
14. Appearing in support of the special leave petition, Mr. Mukul
Rohtagi, Senior Advocate, appearing with Dr. Abhishek M. Singhvi, Senior
D Advocate, urged that both the Tribunal as well as the High Court failed
to appreciate the main plank of challenge made on behalf of the petitioners,
namely, that inter-zonal transfers have been prohibited and since the
Nagpur zone was a separate zone from the Bhopal zone the transfer order
had been made in violation of the policy of transfer.
E 15. It was urged that instead of deciding the aforesaid question raised
on behalf of the writ petitioners, the High Court went into a broader issue
regarding transfer being an incident of service under the Central Service
Rules. Mr. Rohtagi also urged that in the absence of any Rules framed
by the Central Board of Excise and Customs the instructions issued by
F the Board from time to time would have to be applied in respect of the
employees of the Department. Conceding that transfer was an incident
of service in the Central services, Mr. Rohtagi urged that the said principle
would not apply in this case in view of the existence of definite instructions
issued by the Board in this regard.
G'
16. It was urged that the High Court appears to have missed this
aspect of the matter and had relied solely on the decision of this Court in
the case of Shilpi (supra) and certain other decisions namely (i) SB.I.
vs. Anjan, (2001] 5 SCC 508; (ii) National Hydro Electric Power
H Corporation Ltd. v. Shri Bhagwan, [2001] 8 SCC 574; (iii) Union of
PRABIRBANERJEE v. UNION OF INDIA 705
[ALTAMAS KABIR, J.]
)- India v. Janardan Debnath, [2004] 4 SCC 245; (iv) State of UP. vs. A
Siya Ram, [2004] 7 SCC 405, in arriving at the conclusion that the writ
petitioner would only be entitled to make a representation to the competent
authority regarding the order of transfer.
17. Appearing for the respondents, Mr. B. Dutta, learned Additional B
Solicitor General, took us to the variou<; circulars issued by the Department
of Revenue in the Ministry of Finance, Government oflndia, which had
· also been referred to by Mr. Rohtagi, relating to inter-Commissionerate
transfers of Grade B, C and D employees. In support of his contention
that inter-zonal transfers in the Department of Customs and Central Excise C
were permissible, the learned Additional Solicitor General urged that
services under the said Department was an all India service wherein
transfer was an incident of service to which the petitioner could not
legitimately object. The learned Additional Solicitor General also referred
to the communication from the Central Board of Excise and Customs to
the Chief Commissioner of Central Excise and the Chief Commissioner D
of Customs, as also Central Excise and Customs, dated 16.1.2003,
whereby it was declared by the Board that all the powers being exercised
by the respective Commissioners as the Cadre Controlling Authority
would thenceforth be exercised by the respective Chief Commissioners.
In addition to the above, the learned Additional Solicitor General referred E
to the directions of the Board in its communication dated 24.8.04
whereby it was indicated that pending decision on the demand for
bifurcation of group 'B' and 'C' cadres relating to Nagpur and Indore
Collectorates it had been decided that cadre control of the said two
Collectorates would be distributed between the two Collectors ofNagpur F
zone and Indore zone. The Collector of Central Excise of the Nagpur
zone was made the Cadre Controlling Authority of Group 'B' and 'C'
employees belonging to the Ministerial cadre whereas the Collector of
Central Excise, Indore, was made the Cadre Controlling Authority in
respect of Group 'B' and 'C' officers in the executive cadres. The learned G
Additional Solicitor General added that of the officers posts in the different
Commissionerates the post of Superintendent was a Group 'B' post in
the executive cadre and in respect of the two aforesaid Collectorates the
Collector of Central Excise, Indore, became the Cadre Controlling
H
706 SUPREME COURT REPORTS [2007] 10 S.C.R.

A Authority of such employees in the aforesaid Collectorates. 4.
18. Referring to the counter affidavit filed on behalf of the
respondents, and in particular para 3 (V), he submitted that by virtue of
notification No.14/2002 Central Excise dated 8.3.2002, as amended,
B issued under Rule 3(2) of the Central Excise Rules, 2002, the statutory .
jurisdiction of the Chief Commissioner under the provisions of the Central
Excise Act, 1944 and the Rules framed thereunder have been defined.
He urged that the statutory jurisdiction was distinct from the jurisdiction ·--l-
of the Chief Commissioner as Cadre Controlling Authority which had been
C defined separately by way of administrative instructions. While the statutory
jurisdiction of the Chief Commissioner, Bhopal under the Central Excise
Act extended to the three Commissionerates of Bhopal, Indore and
Raipur, the Chief Commissioner, Bhopal, was designated as the. Cadre
Controlling Authority for the combined cadre of Grade 'B' and 'C' of
four Commissionerates, namely, Bhopal, Indore, Raipur and Nagpur. It
D was also submitted that since the jurisdiction of a Chief Commissioner as
a Cadre Controlling Authority has not been defined or circumscribed by
any notification issued under Rule 3(2), administrative instructions issued
from time to time would have to be followed in the absence of such
statutory rules, as had been done in the instant case.
E
19. It was submitted that the High Court had not committed any
error in relying on the principle that in Central Government Service transfer
was an incident of service and an employee was not entitled to question
the impugned order of transfer on such ground. Further, since the transfer }--
F order had been issued by the Cadre Controlling Authority, namely, the
Chief Commissioner of Central Excise, Bhopal, who had been vested by
the Board with authority to act as the Cadre Controlling Authority in
respect of the three Commissionerates within the Bhopal zone and the
Nagpur Commissionerate under the Nagpur zone, such order was made
G validly and could not be interfered with on the ground of lack of
jurisdiction.
20. Having considered the subinissions made on behalf of the respect
parties we are inclined to agree with the stand taken by the respondents
that while transfer is an incident of service under the Central Service Rules,
H
PRABIRBANERJEEv. UNIONOFINDIA 707
[ALTAMAS KABIR, J.]
the petitioner has no cause to complain in respect of the transfer order A
by which he was transferred from the Bhopal zone to the Nagpur zone,
as the same had been passed by the Chief Commissioner of Central
Excise, Bhopal zone, under powers vested in him by the Board by its
Circular dated 16.1.2003.
B
21. Although, both the parties have relied upon the circular dated
19.2.2004 and 9.3.2004 issued by the Department of Revenue, in the
Ministry of Finance, Government of India, the said two circulars have little
or no relevance to the facts at issue in the instant case. The circular dated
19.2.2004 merely indicates that inter-Commissionerate transfers of Group C
'B ', 'C' and 'D' employees were talcing place on compassionate grounds
which had caused certain administrative difficulties resulting in protracted
litigation which caused the Board to review the situation in detail. It is in
that context that it was further indicated that in supersession of all previous
instructions issued on the subject in the past from thenceforth no inter-
Cornmissionerate transfer would be allowed for any Group 'B', 'C' and D
'D' employee. Instead, in exceptional circumstances depending on merits
of each case, such transfers would be allowed on deputation basis for a
period of3 years, subject to the approval of the transferring and transferee
Cadre Controlling Authorities. The other circular dated 9.3.2004 merely
clarified the question of inter-Commissionerate transfers within the same E
zone. In this conte>..1 it was clarified that inter-Commissionerate transfers
amongst the Cornmissionerates having common cadre, where there was
no loss of seniority involved, such a practice would be allowed to
continue.
F
22. In our view, neither of the two circulars have any bearing and/
or relevance to the issues raised in the instant case where the central
question is whether the Chief Commissioner of the Bhopal
Commissionerate was competent to transfer the petitioner to a
Commissionerate of a different zone, namely, Nagpur, except to the extent G
of indicating that inter-Commissionerate transfers between
Commissionerates having a common cadre would be allowed to continue.
23. No doubt transfer is an incident of service in an All India service
and under the Central Service Rules the Controlling Authority was
H
.\__
708 SUPREME COURT REPORTS [2007] 10 S.C.R.

A competent to transfer the petitioner to any place in India, where it
considered expedient to do so. But apart from the above, we also have
to take into consideration the decision of the Central Board of Excise and
Customs in its communication dated 24.8.1984 by which pending decision
on the demand for bifurcation of Group 'B', and 'C' cadres relating to
B Nagpur and Indore cadres the Board took a decision that cadre control
of the said two Coilectorates would be distributed between the two
Collectors as indicated in the said communication. As mentioned .--l:-
hereinabove, while the Collector of Central Excise, Nagpur, was made
the Cadre Controlling Authority of Group 'B' and 'C' Ministerial Cadres,
c the Collector of Central Excise, Indore was made the Cadre Controlling
Authority of executive cadres of Group 'B' and 'C'. We are alive to the
fact that the decision taken by the Board was an administrative decision,
but in the absence of any direct Rule relating to transfer between two
·collectorates under the Central Board of Excise and Customs, the said
D administrative instruction would have to be implemented insofar as inter-
Collectorate transfers between the Nagpur and Indore Cadre was
concerned. In fact, by subsequent circular dated 16.1.2003 the Board
further declared that the Chief Commissioner of Central Excise/Customs
in a Commissionerate would be the Cadre Controlling Authority up to
E Group 'B' level staff, and its functions v.;:ould include monitoring the
implementation of the Board's instructions with regard to the transfers and
equitable distribution of man-power and material resources between the
Commissionerates/zones.
24. The learned Additional Solicitor General had strenuously urged
F that by virtue of the communication dated 24.8.2004 the Collector of
Central Excise, Indore, had been made the Cadre Controlling Authority
of executive cadres belonging to Group 'B' and 'C' of the Nagpur and
Indore Collectorates, which empowers the Chief Commissioner of the
Bhopal zone to exercise control over the cadre both in respect of the three
G Commissionerates comprising the Bhopal· zone as also the x
Commissionerate ofNagpur falling within the Nagpur zone. It has neither
been pleaded nor has it been shOwn to us that the decision of the Bo.ard
as contained in the said circular of 24.8.1984 has since been rescinded
or altered and that the Chief Commissioner of the Bhopal zone is no longer
H
PRABIRBANERJEEv. UNION OF INDIA 709
[ALTAMAS KABIR, J.]
the Cadre Controlling Authority of the Nagpur Commissionerate. A
25. In the aforesaid circumstances, although the High Court has
proceeded mainly on the basis thatinJhe Central Services transfer is an
incident of service and has not really dealt with the various circulars on
the subject, we are not inclined to interfere with the judgment and order
of the High Court disposing of the writ petition. B
26. There is also another aspect of the matter, namely, that pursuant
to the leave granted by the High Court to make a representation to the
competent authority, the petitioner herein made a. representation for
reconsideration of the transfer order to the Chairman of the Central Board C ·
of Excise and Customs on 17.4.05. In other words, the petitioner had
submitted to the directions given in the impugned judgment, thereby,
disentitling him to question the decision rendered by the High Court.
27. For the aforesaid reasons, we dismiss the Special Leave Petition,
but, in the facts of the case, without any order as to costs. D
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' S.K.S. S.L.P. dismissed.

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