THE HONOURABLE SRI JUSTICE GODA RAGHURAM AND THE HONOURABLE SRI JUSTICE R.KANTHA RAO WRIT PETITION No. 14309 of 2010 and WPMP No. 19688 of2010 Dated: 5-7-2010 Between: Ch.Lakshman Babu …Petitioner and The Chief Commissioner, Customs and Central Excise, Visakhapatnam and another …Respondents ORAL ORDER: (Per Hon’ble Sri Justice Goda Raghuram) The application W.P.M.P.No. 19688 of 2010 is filed seeking impleadment of the Union of India represented by its Chairman, Central Board of Excise and Customs, New Delhi as the respondent in the writ petition in an unusual context. The writ petition is filed, aggrieved by an order dated 10-6-2010 of the learned Central Administrative Tribunal, Hyderabad bench, Hyderabad (for short ‘the Tribunal’) rejecting O.A.No. 616 of 2009. The petitioner filed the O.A. impleading the Chief Commissioner, Customs and Central Excise, Visakhapatnam and the Commissioner of Customs and Central Excise, Commissionerate, Guntur as the respondents in the O.A. They are reflected as the two respondents in the writ petition as well. The grievance of the petitioner herein, in O.A. No. 616 of 2009 is against an order dated 18-06-2009 of the Commissioner of Customs and Central Excise, Guntur rejecting his request for posting him to a field duty on the ground that he is under a cloud and being investigated in a Vigilance case. Clearly therefore, the petitioner was pursuing a grievance in respect of a grievance pertaining to the conditions of his service in the department of Customs and Central Excise, a department under the administrative control of the Union of India. Without having impleaded the Union of India as a party respondent in the O.A, the petitioner cannot now implead the Union of India in the writ petition and overcome the fatality of failing to implead a proper and necessary party, namely, the Union of India, which is a juristic entity. Be that as it may. The petitioner was placed under suspension while working as a Superintendent of Central Excise, on alleged involvement in a case of illegal gratification. A case was registered against him and others by the CBI; he was arrested along with other accused but was released on bail; his suspension on 8-4-2004 was revoked on 11-1-2005 and he was reinstated to duty. By a letter dated 2-6-2009, the Superintendent of Police, CBI addressed the Commissioner of Customs and Central Excise stating that though the petitioner’s prosecution is not being pursued, his case is recommended for regular departmental action for a major penalty and recommended that disciplinary proceedings be initiated after completion of the trial of the criminal case in respect of other accused. In this factual scenario, the petitioner submitted a representation dated 5-1-2009 seeking posting to field duty in Nellore division for a two year period “to improve his subject knowledge, as he had undergone basic induction course in the category of Superintendent of Central Excise on promotion.” Aggrieved by the inaction on this representation, the petitioner filed O.A.No. 382 of 2009 before the Tribunal for considering his representation dated 5-1-2009. By the order of the Tribunal dated 1-5-2009, the said O.A.No. 382 of 2009 was disposed of directing the respondents to consider his representation within the time stipulated. In compliance of such direction, the 2nd respondent, by the order dated 18-6-2009 rejected the representation of the petitioner for field duty relying on guidelines issued by the Central Vigilance Commissioner set out in the instructions dated 18-8-1999 wherein the CBI had directed the Departments and Associations not to post officers whose names come under the purview of the said guidelines, to sensitive posts. Aggrieved by the rejection of his representation, by the order of the 2nd respondent dated 18-6-2009, the petitioner again approached the Tribunal in O.A.No. 616 of 2009. The Tribunal rejected his application in substance, holding that though the petitioner was initially enumerated in the list of Officers of Doubtful Integrity from 2005-06 to 2007-08, he was later included in the “Agreed List” in 2008-09 and the Agreed List for the year 2009-10 is yet to be finalised. The CVC instructions dated 18-8-1999 ordain that officers whose names are placed either in the “agreed list” or in the list of “Officers of Doubtful Integrity” should not be posted to sensitive areas. Further the Superintendent of Police, CBI, Visakhapatnam in his letter dated 2-6-2009 addressed to the 2nd respondent had advised that the applicant be informed in writing (in the contemplated departmental proceedings against him on completion of the trial in the case against the other accused) of his complicity in the transaction of illegal gratification. In the light of all these circumstances, the Tribunal held that the CBI may take note of the fact of the petitioner having been continued in the ‘agreed list’ for too long; that since as of now the petitioner’s name figures in the ‘agreed list’, the order of the 2nd respondent (impugned before the Tribunal, rejecting the petitioner’s request for posting him to field formation) suffers from no infirmity warranting interference. We concur with the decision of the Tribunal and for an additional reason. Whether the petitioner’s name figures in the list of officers of “Doubtful Integrity” or the “Agreed list”, the fact remains that the CBI had recommended to the respondents for initiation of major disciplinary proceedings against the petitioner for his alleged involvement in a case of demand and acceptance of illegal gratification by another officer B.Sri Krishna on whose behalf the petitioner had allegedly threatened the complainant one Ravi Kumar. Whether the allegation is true or otherwise, the petitioner works in critical areas of revenue and irrespective of the pendency of disciplinary proceedings or his name figuring in a list of officers under a cloud of Doubtful Integrity, the choice of posting whether at a desk job or in field duty is exclusively within the domain of executive choice. The choice of posting of officers, in the absence of any legal or statutory right to a particular posting does not fall within the spectrum of judicial discretion. Posting of officers is not under judicial administration. Choice of the executive/appropriate authority is not therefore liable to be interfered with in exercise of judicial discretion. Irrespective of whether the petitioner is in the list of officers of “Doubtful Integrity” or in the “agreed list”, he has not made out any case for issue of a direction to the respondents to post him to field duty. For the above reason as well and the reasons recorded by the Tribunal, no case is made out for interference in this writ petition. The writ petition must also fail on the substantive ground that the petitioner had approached the Tribunal without impleading the necessary and property party, the Union of India. In view of the decision of the Supreme Court in Union of India V. L.Chandrakumar[1] the aggrieved public servant cannot approach this Court directly but must first approach the Tribunal. Therefore, the necessary and property party should have been impleaded before the Tribunal and that fatal infirmity is not cured by impleading the Union of India in this writ petition. On the aforesaid analysis, the writ petition requires to be dismissed and is accordingly dismissed at the stage of admission. There shall however be no order as to costs. _________________________ GODA RAGHURAM, J _________________________ R. KANTHA RAO, J 5th July, 2010. GRR [1] AIR 1997 SC 1124