Op (Cat)/75/2021 Of Nisha Sivadas v. The Income Tax Appellate Tribunal

IN THE HIGH COURT OF KERALA AT ERNAKULAMPRESENTTHE HONOURABLE MR. JUSTICE ALEXANDER THOMAS&THE HONOURABLE MR.JUSTICE VIJU ABRAHAMTUESDAY, THE 26 DAY OF OCTOBER 2021 / 4TH KARTHIKA, 1943OP (CAT) NO. 75 OF 2021 AGAINST THE ORDER DATED 16.10.2021 IN OA NO.180/157/2021 OFCENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH, ERNAKULAMPETITIONER/APPLICANT: NISHA SIVADAS,AGED 47 YEARSW/O.C. SIVADASAKUMAR, OFFICE SUPERINTENDENT, INCOME TAX APPELLATE TRIBUNAL, KENDRIYA BHAVAN, KAKKANAD, KOCHI 682 037, RESIDING AT "GEETHANJALI",ROYAL GARDENS, MLA ROAD, UDAYAMPEROOR P.O., THRIPPUNITHURA, PIN-682 307. BY ADVS.T.C.GOVINDASWAMYKALA T.GOPIB.NAMADEVA PRABHU RESPONDENTS/RESPONDENTS: 1THE INCOME TAX APPELLATE TRIBUNAL,CENTRAL GOVERNMENT OFFICES BUILDING, 4TH FLOOR, MAHARASHI KARVE MARG, MUMBAI-400 020 REPRESENTED BY ITS REGISTRAR.2THE ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KENDRIYA BHAVAN, KAKKANAD, KOCHI 682 037. BY ADV SRI.K.R.RAJKUMAR, C.G.C. THIS OP (CAT) HAVING COME UP FOR ADMISSION ON26.10.2021, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: ALEXANDER THOMAS & VIJU ABRAHAM, JJ. ................................................................. O.P.(C.A.T.) No.75 of 2021 [Arising out of the impugned final order dated 16.10.2021 in O.A./180/157/2021 on the file of CAT, EKM Bench] .................................................................Dated this the 26[th] day of October, 2021 JUDGMENT Alexander Thomas, J. Being aggrieved by the impugned Annexure-A1 order dated19.03.2021 issued by the competent authority of the 1[st] respondent –Income Tax Appellate Tribunal (ITAT), to the extent it has ordered asper Sl.No.2 thereof, that the petitioner/applicant, has been transferredfrom the post of Office Superintendent, ITAT, Cochin Bench to thePrincipal Bench of the ITAT at Mumbai, the petitioner herein hadinstituted Ext.P2 original application, O.A.No.157 of 2021 on 31.03.2021before the Central Administrative Tribunal, EKM Bench with thefollowing prayers [see page Nos.27 and 28 of the paper book of the O.P.]: “(i)Call for the records leading to the issuance ofAnnexure A1 and quash the same to the extent it relates to theapplicant;(ii)Call for the records leading to the issuance ofAnnexure-A7 and quash the same;(iii)Direct the respondents to allow the applicant tocontinue at Cochin Bench, as if Annexure A1 had not beenissued at all;(iv)Award costs of and incidental to thisapplication; (v)Grant such other relief, which this Hon'ble Tribunalmay deem fit and proper in the circumstances of the case.” 2.The Tribunal after hearing both sides, has rendered the impugned Ext.P1 final order dated 06.10.2021 dismissing O.A.No.157 of 2021 finding that no substantial grounds for invoking the public lawremedy have been made out, so as to justify interdiction of theimpugned transfer order and that the respondent authorities haveweighed relevant aspects of the matter in ordering transfer of thepetitioner from Cochin to Mumbai and to retain another official,Smt.Hema Rajan who is junior to the applicant herein. It is this finalverdict of the Tribunal at Ext.P1 that is under challenge before us in theinstant original petition filed under Articles 226 & 227 of theConstitution of India, at the instance of the abovesaid unsuccessfuloriginal applicant. 3.Heard Sri.T.C.Govindaswamy, the learned Advocate instructed and ably assisted by Smt.Kala T.Gopi, the learned counselappearing for the petitioner in O.P./sole applicant in the O.A andSri.K.R.Rajkumar, the learned Central Government Counsel (CGC)appearing for the respondents in the O.P./respondents in the O.A. 4.A brief reference to the facts in this case would be pertinent. The applicant had commenced her service as Lower Division Clerk(LDC) in the service under the respondentabout 25 years back and she 3.Heard Sri.T.C.Govindaswamy, the learned Advocate instructed and ably assisted by Smt.Kala T.Gopi, the learned counselappearing for the petitioner in O.P./sole applicant in the O.A andSri.K.R.Rajkumar, the learned Central Government Counsel (CGC)appearing for the respondents in the O.P./respondents in the O.A. 4.A brief reference to the facts in this case would be pertinent. The applicant had commenced her service as Lower Division Clerk(LDC) in the service under the respondentabout 25 years back and she has secured promotion to the next higher category posts of UpperDivision Clerk (UDC) and subsequently as Head Clerk (HC) which postwas subsequently re-designated as Office Superintendent (OS) and it iscommon ground that she has continued all through out in her servicecareer in various posts in the Cochin Bench of the 1[st] respondent IncomeTax Appellate Tribunal. Originally, there was only one post in thecategory of HC/OS in the Cochin Bench and later one post was shiftedfrom some other Bench of the Tribunal to the Cochin Bench andthereafter, two incumbents, viz., the original applicant as well asanother woman employee, Smt.Hema Rajan have been continuing asHCs/OSs in the Cochin Bench. It appears that at the relevant time, twoincumbents were continuing as OSs in the Cochin Bench, both of themare women employees, the first one being the original applicant and thesecond one being the abovesaid Smt.Hema Rajan who is junior to theapplicant. 5.We need not get into the details of those aspects except tosay that at the time of issuance of Annexure-A1 transfer order, it wasfound that there is only one sanctioned post of OS and two incumbentsare continuing and further, four posts of OSs were vacant in theMumbai Bench and in view of the heavy work load in the MumbaiBench, which is the Principal Bench at least 3 to 4 incumbents should be transferred and posted to Mumbai Bench as OSs and otherwise the workload should have seriously affected the administrative functioning of theTribunal due to reasons, more than one. On these grounds thecompetent authority of the Income Tax Appellate Tribunal decided aftertaking into consideration the various aspects that the applicant hereinhas continued in Cochin much more than the period spent by Smt.HemaRajan in Cochin, inasmuch as Smt.Hema Rajan is admittedly junior tothe applicant and so the applicant who has been permitted to continuein Cochin for the maximum period, more particularly, in the post of OSshould be transferred. On this basis, the impugned transfer order wasissued as per Sl.No.2, it was ordered that the original applicant willstand transferred from the Cochin Bench to the Principal Bench atMumbai. 6.Further, we are told that the Principal Bench of 1[st]respondent ITAT at Mumbai is having the maximum work loadcompared to various other Benches of the said Tribunal and four postsof Office Superintendents were kept vacant and that were to be filled upand that is one of the imperative needs which had to be metwhileissuing the impugned transfer order. After hearing both sides, we haveno hesitation to countenance the said plea made by the respondents.Further, a reading of Annexure-A1 transfer order also would make it clear that three incumbents including the original applicant has beenordered to be transferred from various other Benches, as OSs to thePrincipal Bench at Mumbai. So, by the issuance of Annexure-A1 threeincumbents including the original applicant out of the total sixincumbents covered by Annexure-A1 have been transferred from theirpresent station as OSs to the Principal Bench at Mumbai. That aspect ofthe matter is self-evident and manifest from a mere reading ofAnnexure-A1 order and that it itself speaks volumes about the bonafides of the respondent authorities in taking the impugned decision. clear that three incumbents including the original applicant has beenordered to be transferred from various other Benches, as OSs to thePrincipal Bench at Mumbai. So, by the issuance of Annexure-A1 threeincumbents including the original applicant out of the total sixincumbents covered by Annexure-A1 have been transferred from theirpresent station as OSs to the Principal Bench at Mumbai. That aspect ofthe matter is self-evident and manifest from a mere reading ofAnnexure-A1 order and that it itself speaks volumes about the bonafides of the respondent authorities in taking the impugned decision. 7.Various pleas have been made by both sides. After hearingboth sides, we are of the firm view that the Tribunal cannot be faulted inany manner in holding that the competent authority of the 1[st]respondent ITAT has acted on the basis of relevant grounds in issuingthe transfer order and that the transfer being only an incident of service,is not liable for interdiction, as no case of mala fides, etc. has not beeneven remotely made out in any manner. We would also endorse theabovesaid considered views of the Tribunal at Ext.P1 and at any rate weare not in a position to hold that the views rendered by the Tribunal canbe branded as either manifestly perverse or unreasonable. Theindisputable fact of the matter is that the applicant is at least threemonths senior to Smt.Hema Rajan. Both of them have continued in Cochin for long time. But, the longest period in Cochin has been enjoyedby the applicant compared to Smt.Hema Rajan, both in the variouslower posts as well as in the present post of OS. Further, Smt.HemaRajan is elder to the applicant and she is a widow and that she wasappointed on compassionate appointment basis and she is to retire fromservice on 31.03.2025. Whereas, the original applicant is younger in agecompared to Smt.Hema Rajan and the original applicant is to retirefrom service only on 31.05.2034. If the issue is one of abolition of a postand one incumbent having to be ousted from service, then certainly thejuniormost will have to go out of the service pursuant to the abolition ofthe post. However, in the instant case, the total number of posts in theITAT in various Benches have not been abolished and there is only onesanctioned post of OS in Cochin. So one person out of the two presentincumbents will have to be transferred. Then, especially most of theGovernmental Administrative Departments, may decide to transfer theincumbent who has enjoyed the maximum posting in the stationconcerned compared to the incumbents who have enjoyed only lesserpostings in the station concerned. In the instant case, the originalapplicant who has enjoyed the posting in Cochin, which is much morethan that undergone by Smt.Hema Rajan. Going by the age factor, dateof retirement and also the fact that Smt.Hema Rajan is a widow, who was given compassionate appointment, etc., the competent authority ofthe 1[st] respondent cannot be faulted for taking a decision to transfer theoriginal applicant in terms of Annexure-A1 and it is trite that matters inrelation to the realm of transfer in service jurisprudence is essentially anincident of service and it can give rise to any legally justiciable cause ofaction only if the transfer is regulated by statutory rules and there isflagrant violation of such statutory guidelines or there is a case of grossmala fides or the case of rankarbitrariness and acting on the basis ofhighly irrelevant considerations, etc. The last grounds would benormally invoked only in very rare and exceptional scenarios, whileconsidering the invocation of remedy of public law. Hence, in the lightof these aspects, we are of the firm view that the verdict of the Tribunalat Ext.P1 does not deserve any interdiction. 8.Sri.T.C.Govindaswamy, the learned Advocate instructed andassisted by Smt.Kala T. Gopi, the learned counsel appearing for thepetitioner would urge that this Court may, at least consider the postingof the petitioner either to any other equivalent position in any of thesouthern Benches of the ITAT including Cochin and other southernBenches like Chennai, Bangalore, Hyderabad, etc. Taking intoconsideration of this plea, we had earlier requested Sri.K.R.Raj Kumar,the learned Central Government Counsel appearing for the respondents to get specific and precise factual instructions on these aspects, who hasapprised us that a statement dated 26.10.2021 has been filed today withbench mark. Sri.K.R.Raj Kumar, the learned CGC appearing for therespondents has invited our attention to para No.5 of the said statementwherein, it has been stated that the 1[st] respondent Tribunal is a panIndia Tribunal and has various Benches all over India and that, thependency at Cochin is far below 500 cases whereas, the pendency inMumbai is in excess of 15000 and that, now members of the majorstations could have to hear appeals of other small stations also and thisrequires support staff to be available at the various stations because filemovements and administrative works would be higher in these stations.Further, it is pointed out by Sri.K.R.Raj Kumar, the learned CGCappearing for the respondents that as of now, there is no vacant post inthe cadre of OS to accommodate the claims of petitioner either inCochin or in any other nearby benches. 9.Faced with this situation, Sri.T.C.Govindaswamy, thelearned Advocate appearing for the petitioner submits that thepetitioner would immediately file a representation for ventilating hergrievances for getting a posting either in Cochin Bench or in any othernearby Benches and such representation will be duly filed before theHon'ble President of the 1[st] respondent Income Tax Appellate Tribunal and that this Court may direct the said competent authority to considersuch requests, etc. The logistics and decision making process in termsof transfer matters would be eminently within the domain of thecompetent transferring authority. All we would say is that in case thepetitioner files any such representation, it is for the competentauthority to take note of the same and consider it, in accordance withlaw. As indicated herein above, the verdict of the Tribunal at Ext.P1 doesnot deserve any interdiction at the hands of this Court in exercise of theextraordinary constitutional discretion conferred in terms of Articles226 & 227 of the Constitution of India.In that view of the matter, it is ordered that the petition failsand the original petition will stand dismissed. Sd/- ALEXANDER THOMAS JUDGE Sd/- VIJU ABRAHAM JUDGE APPENDIX OF OP (CAT) 75/2021 PETITIONER'S EXHIBITS Exhibit P1TRUE COPY OF ORDER OF THE LEARNED CENTRALADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN OA NO. 180/00157/2021 DATED 06.10.2021.ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN OA NO. 180/00157/2021 DATED 06.10.2021. Exhibit P2TRUE COPY OF ORIGINAL APPLICATION NO. 180/157/2021 DATED 31.03.2021 ALONG WITH ANNEXURES.180/157/2021 DATED 31.03.2021 ALONG WITH ANNEXURES. Annexure A1TRUE COPY OF ORDER BEARING NO. F-300-AD/AT/2021 DATED 19TH MARCH, 2021 ISSUED FROM THE OFFICE OF THE IST RESPONDENT.AD/AT/2021 DATED 19TH MARCH, 2021 ISSUED FROM THE OFFICE OF THE IST RESPONDENT. Annexure A7TRUE COPY OF THE COMMUNICATION BEARING NO. NIL DATED 27.04.2021 ISSUES FROM THE OFFICE OF THE FIRST RESPONDENT.NO. NIL DATED 27.04.2021 ISSUES FROM THE OFFICE OF THE FIRST RESPONDENT. Annexure A2TRUE COPY OF THE ORDER BEARING NO. F-84-AD/AT/2017 DATED 10TH AUGUST 2017, ISSUEDFROM THE OFFICE OF THE IST RESPONDENT.AD/AT/2017 DATED 10TH AUGUST 2017, ISSUEDFROM THE OFFICE OF THE IST RESPONDENT. Exhibit P2TRUE COPY OF ORIGINAL APPLICATION NO. 180/157/2021 DATED 31.03.2021 ALONG WITH ANNEXURES.180/157/2021 DATED 31.03.2021 ALONG WITH ANNEXURES. Annexure A1TRUE COPY OF ORDER BEARING NO. F-300-AD/AT/2021 DATED 19TH MARCH, 2021 ISSUED FROM THE OFFICE OF THE IST RESPONDENT.AD/AT/2021 DATED 19TH MARCH, 2021 ISSUED FROM THE OFFICE OF THE IST RESPONDENT. Annexure A7TRUE COPY OF THE COMMUNICATION BEARING NO. NIL DATED 27.04.2021 ISSUES FROM THE OFFICE OF THE FIRST RESPONDENT.NO. NIL DATED 27.04.2021 ISSUES FROM THE OFFICE OF THE FIRST RESPONDENT. Annexure A2TRUE COPY OF THE ORDER BEARING NO. F-84-AD/AT/2017 DATED 10TH AUGUST 2017, ISSUEDFROM THE OFFICE OF THE IST RESPONDENT.AD/AT/2017 DATED 10TH AUGUST 2017, ISSUEDFROM THE OFFICE OF THE IST RESPONDENT. Annexure A3A TRUE COPY OF THE SENIORITY LIST OF OFFICE SUPERINTENDENTS OF ITAT AS ON 01.01.2019 PUBLISHED BY THE RESPONDENTS. OFFICE SUPERINTENDENTS OF ITAT AS ON 01.01.2019 PUBLISHED BY THE RESPONDENTS. Annexure A4 A TRUE COPY OF THE OFFICE MEMORANDUM BEARING NO. 28034/2/97-ESTT(A) DATED 12.6.97 ISSUED BY THE DEPARTMENT OF PERSONNEL AND TRAINING.BEARING NO. 28034/2/97-ESTT(A) DATED 12.6.97 ISSUED BY THE DEPARTMENT OF PERSONNEL AND TRAINING. Annexure A5TRUE COPY OF OM NO. 28034/9/2009 -ESTT(A)DATED 30TH SEPTEMBER 2009 ARE ISSUED BY THE DEPARTMENT OF PERSONNEL AND TRAINING.DATED 30TH SEPTEMBER 2009 ARE ISSUED BY THE DEPARTMENT OF PERSONNEL AND TRAINING. Annexure A6TRUE COPY OF REPRESENTATION SUBMITTED BY THE APPLICANT DATED 22ND MARCH 2021 ADDRESSED TO THE PRESIDENT, INCOME TAX APPELLATE TRIBUNAL, MUMBAI.THE APPLICANT DATED 22ND MARCH 2021 ADDRESSED TO THE PRESIDENT, INCOME TAX APPELLATE TRIBUNAL, MUMBAI. Exhibit P3 A TRUE COPY OF REPLY STATEMENT FILED BY THE OFFICIAL RESPONDENTS DATED 23.5.2021.THE OFFICIAL RESPONDENTS DATED 23.5.2021. RESPONDENTS' ANNEXURE Annexure R1A TRUE COPY OF THE MEMORANDUM DATED 15.02.1996.15.02.1996. Annexure R2A TRUE COPY OF THE LETTER DATED 04.03.1996. Annexure R3A TRUE COPY OF THE ORDER DATED 14.03.1996.14.03.1996.Annexure R4A TRUE COPY OF THE ORDER DATED 1.04.2021.Annexure R5A TRUE COPY OF THE ORDER DATED 28.04.2021.Annexure R5A TRUE COPY OF THE ORDER DATED 28.04.2021.Annexure R6A TRUE COPY OF THE ORDER DATED 27.04.2021.27.04.2021.Annexure R7A TRUE COPY OF THE TRANSFER POLICY.PETITIONER'S EXHIBITSExhibit P4A TRUE COPY OF THE REJOINDER DATED 27.06.2021 FILED BY THE PETITIONER IN OA 180/157/2021 BEFORE THE CAT, ERNAKULAM, BENCH.PETITIONER'S EXHIBITSExhibit P4A TRUE COPY OF THE REJOINDER DATED 27.06.2021 FILED BY THE PETITIONER IN OA 180/157/2021 BEFORE THE CAT, ERNAKULAM, BENCH. Annexure A8A TRUE COPY OF THE OFFICE MEMORANDUM BEARING NO. 11013/10/2013-ESTT.A. DATED 09.01.2014 ISSUED BY THE DOP& T.BEARING NO. 11013/10/2013-ESTT.A. DATED 09.01.2014 ISSUED BY THE DOP& T.Exhibit P5A TRUE COPY OF THE MA NO. 342 OF 2021 FORIMPLEADED FILED BY THE PETITIONER IN OA NO. 157 OF 2201 DATED 27.06.2021 BEFORE THE HONBLE CAT ERNAKULAM BENCH.IMPLEADED FILED BY THE PETITIONER IN OA NO. 157 OF 2201 DATED 27.06.2021 BEFORE THE HONBLE CAT ERNAKULAM BENCH.Exhibit P6A TRUE COPY OF THE ARGUMENT NOTE DATED 29.06.2021 FILED BY THE RESPONDENTS IN OANO. 157 OF 2021.29.06.2021 FILED BY THE RESPONDENTS IN OANO. 157 OF 2021. Annexure A1TRUE COPY OF THE INTERIM ORDER PASSED BY THIS TRIBUNAL ON 05.4.2021.THIS TRIBUNAL ON 05.4.2021. Annexure 2TRUE COPY OF THE JUDGMENT IN 1997 KHC 31.Annexure 3TRUE COPY OF THE JUDGMENT IN 1993 (4) SCC357.Annexure 3TRUE COPY OF THE JUDGMENT IN 1993 (4) SCC357. Annexure 4TRUE COPY OF THE JUDGMENT IN 2014 (4) KHC621.621. Annexure 5TRUE COPY OF THE JUDGMENT IN 2001 KHC 1195.1195. Annexure 6TRUE COPY OF THE JUDGMENT IN STATE OF UP AND ANR. VS. SIYARAM AND ORS.AND ANR. VS. SIYARAM AND ORS.Annexure 7TRUE COPY OF THE JUDGMENT IN 2009(9) SCC 304.304. Exhibit P7 Exhibit P8 Exhibit P9 Exhibit P10 A TRUE COPY OF ADDITIONAL REPLY TO THE AMENDED O.A. DATED2.07.2021. A TRUE COPY OF THE MA NO. 427 OF 2021 DATED 4TH JUNE 220021 FILED BY THE RESPONDENTS IN OA NO. 157 OF 2021. Annexure A1TRUE COPY OF THE INTERIM ORDER PASSED BY THIS TRIBUNAL ON 05.4.2021.THIS TRIBUNAL ON 05.4.2021. Annexure 2TRUE COPY OF THE JUDGMENT IN 1997 KHC 31.Annexure 3TRUE COPY OF THE JUDGMENT IN 1993 (4) SCC357.Annexure 3TRUE COPY OF THE JUDGMENT IN 1993 (4) SCC357. Annexure 4TRUE COPY OF THE JUDGMENT IN 2014 (4) KHC621.621. Annexure 5TRUE COPY OF THE JUDGMENT IN 2001 KHC 1195.1195. Annexure 6TRUE COPY OF THE JUDGMENT IN STATE OF UP AND ANR. VS. SIYARAM AND ORS.AND ANR. VS. SIYARAM AND ORS.Annexure 7TRUE COPY OF THE JUDGMENT IN 2009(9) SCC 304.304. Exhibit P7 Exhibit P8 Exhibit P9 Exhibit P10 A TRUE COPY OF ADDITIONAL REPLY TO THE AMENDED O.A. DATED2.07.2021. A TRUE COPY OF THE MA NO. 427 OF 2021 DATED 4TH JUNE 220021 FILED BY THE RESPONDENTS IN OA NO. 157 OF 2021. A TRUE COPY OF THE ORDER DATED 06.07.2021IN MA NO. 342/2021 AND MA NO. 427 OF 2021. A TRUE COPY OF THE MEMORANDUM BEARING NO.F 4-ADATCOCH/2021 DATED 07.10.2021 ISSUEDFROM THE OFFICE SECOND RESPONDENT.