IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT THE HON'BLE MR JUSTICE D.S.R.VARMA and THE HON'BLE MR JUSTICE K.C. BHANU WRIT PETITION NO. : 26938 OF 2007 DATED:26-03-2008. Between: 1.The Chief Commissioner, Customs & Central Excise, Basheerbagh, Hyderabad. 2. The Commissioner of Customs & Central Excise, Hyderabad-1 Commissionerate, Basheerbagh, Hyderabad. 3. The Commissioner of Customs & Central Excise, Hyderabad-III Commissionerate, Hyderabad. 4. The Additional Commissioner (P & V), Customs & Central Excise, Hyderabad-III Commissionerate, Hyderabad. .... PETITIONERS AND D.B.Nageswara Rao, son of Rama Rao Aged 47 years, Superintendent (Central Excise), Hyderabad-III Commmissionerate. .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue writ of Certiorari or any other appropriate writ, calling for the records pertaining to the order, dated 13-08-2007 in O.A.No.391 of 207 passed by the Hon’ble CAT, Hyderabad Bench and quash the same. COUNSEL FOR THE PETITIONERS: MR.A.RAJASEKHAR REDDY, ASSISTANT SOLICITOR GENERAL COUNSEL FOR THE RESPONDENT: MR. K.R.K.V.PRASAD The Court made the following: ORDER: (per THE HON’BLE SRI JUSTICE K.C.BHANU} This writ petition is directed against the order, dated 13-08-2007 in O.A.No.391 of 2007 passed by the Hon’ble Central Administrative Tribunal, Hyderabad Bench, Hyderabad, (for brevity ‘the Tribunal’), whereunder and whereby the impugned order, dated 20-04-2007, and also the relieving order, dated 28-05-2007, insofar as it relates to the applicant is concerned, was set aside. 2. Petitioners herein are the respondents, whereas the respondent herein is the applicant in the O.A., before the Tribunal. 3. The brief facts, that are necessary for disposal of the present Writ Petition, may be stated as follows: The respondent joined as Inspector of Central Excise on 06- 03-1986 and was promoted to the cadre of Superintendent (Group- B, Gazetted) in April 1998 and presently working in Adjudication Section of Hyderabad-III Commissionerate on deputation from Technical Section of Warangal Division. During the course of general transfers, the 1st petitioner vide the impugned Establishment Order (G.O.) No.15 of 2007, dated 20-04-2007, placed the services of the respondent at the disposal of the Chief Commissioner, Visakhapatnam Zone, necessitating a transfer from Warangal Division to Visakhapatnam Zone. At the first instance, the respondent was transferred from Hyderabad City ‘F’ Division to Moffusil area, vide order, dated 13-04-2005. The respondent joined in the Moffusil post on 06-10-2005. Later he was deputed to work at Hyderabad. While maintaining the official posting treating Warangal as a base, impugned order is passed in violation of existing policy and hence, the respondent prays to set aside the same. 4. Petitioners filed the counter stating that though the respondent was working at Hyderabad on deputation basis, it will be treated as a city posting as per the transfer policy in vogue. When he was posted to Moffusil area, by order, dated 13-04-2005, he joined in the Moffusil post on 06-10-2005. He has not reported to the technical section of Warangal Division in violation of the orders issued by the Commissioner, Customs and Central Excise, Hyderabad-III Commissionerate. He made a representation, dated 03-01-2006 stating that he was willing to work at any place in the city or audit on transfer or on deputation and also to forgo the deputation allowance, TA and DA. Basing on the representation, the Joint Commissioner issued orders in the month of August, 2006, posting him to work in Headquarters, Audit Section, Hyderabad on deputation. As per the policy, the officer has to work two years in Moffusil from the date of joining and after completion of Moffusil period, the officer has to be brought back to the city and he will get cooling period of one year from Inter Zonal Transfer. Though he was relieved on 06-06-2005, during the period from 07-06-2005 to 05-10-2005, he availed leave and joining time. Therefore, there are no grounds to interfere with the transfer and relieving orders. 5. The Tribunal held that from 13-04-2007, the respondent is entitled to city posting for a period of one year and till then he cannot be transferred outside the zone and accordingly, set aside the transfer and relieving orders. 6. Learned Assistant Solicitor General, appearing for the petitioners contended that transfer is incidental to service, that no employee can seek mandamus for continuing him in one place, that as the respondent has not completed two years of Moffusil posting as per the transfer policy, the transfer and relieving orders are correct. 7. On the other hand, learned counsel appearing for the respondent contended that the respondent was asked to give consent to go to Hyderabad and to work in auditing Groups, that he was deputed to work at Hyderabad and as it was a deputation, the period of working at Hyderabad is deemed to be a Moffusil posting and he was drawing pay and allowances only from the Warangal office at the rates admissible in Warangal town and therefore, the period of deputation has to be necessarily taken as a Moffusil posting. 8. The transfer of an employee is incidental to service. It is not in dispute before this Court that as per the transfer policy, one has to work for about two years in Moffusil area from the date of joining. After completion of Moffusil period, the officer has to brought back to the city and he will get cooling period of one year for Inter Zonal Transfer. The respondent was posted to Moffusil area selective audit (Warangal) by transfer order, dated 13-04- 2005 and he was relieved in the division at Hyderabad in the afternoon of 06-06-2005, but, he did not join and during the period from 07-06- 2005 to 05-10-2005, he availed leave and joining time. It is stated that he made a representation, dated 03-01-2006, requesting to transfer him at any place in Hyderabad on transfer or on deputation. Basing on the representation, he was deputed to work in the Headquarters Office, Audit Section, Hyderabad. The period of working at Hyderabad, according to the respondent, has to be treated as working in Moffusil area in view of the fact that the pay and allowances were drawn at the rates admissible to the employees of the Warangal town and he has not drawn any T.A. or D.A. or the allowances applicable to the employees working at Hyderabad. 9. The contention of the petitioners is that the posting cannot be treated as a Moffusil posting since at the request of the respondent, he was taken to Hyderabad and therefore, it is deemed to be a city posting and after completion of one year, he has to go to Visakhapatnam as per the existing policy. 10. A meeting was held on 03-05-2000 at 11.00 Hrs at Hyderabad to discuss the General Transfer Policy and Inter Commissionerate Transfers of Superintendents of Central Excise, A.P. Zone and the decision taken by the officers concerned reads thus: “Decision: Those officers who have been posted to moffusil areas as per the existing policy guidelines will continue to be eligible for the cooling period of one year and their posting to Vizag Sub-zone will be consistent with the already laid down guidelines. However, it was clarified that those officers who have voluntarily working in moffusil areas on their own choice, on long-standing basis, will be liable to be posted directly to Vizag sub-zone.” That policy guideline is not in dispute. The purpose of guideline is that an officer must work in Moffusil area for a period of two years so that there will be uniformity for the officers to be posted at Headquarters. Working for two years at Moffusil area must mean that he must physically work in the Moffusil area for a period of two years. The respondent was deputed to work at Hyderabad after considering his personal reasons expressed by him in the representation. Since he was taken to Hyderabad on deputation basis, necessarily he has to draw the salary and allowances from the place where he was working. The representation, dated 03-01-2006, would clearly go to show that he was willing to work at any place in the city or Audit MIS on transfer or deputation and he would not claim any deputation allowance, transfer TA and other such allowances. When the deputation was at his request and when he worked at Headquarters, which is called city posting, the period of deputation has to be treated as a city posting because of his actual place of working, which cannot be termed as a Moffusil posting or to treat the period of deputation at city posting as a Moffusil posting. No mala fides are attributed to the authorities who effected the transfer. The respondent along with other officers have been transferred and the transfer order is not in violation of any rules. As already held, the transfer of an employee is an incidental to service and the respondent is liable to work anywhere. Without going into these aspects, the Tribunal interfered with the transfer order very casually. Therefore, the transfer order and the relieving order do not suffer from any infirmities warranting interference. Hence, the writ petition is liable to be allowed. 11. Accordingly, the writ petition is allowed setting aside the impugned order, dated 13-08-2007, passed by the Tribunal, in O.A.No.391 of 2007. However, there shall be no order as to costs. --------------------------------- JUSTICE D.S.R.VARMA ------------------------------ JUSTICE K.C.BHANU DATED: 26-03-2008 Hsd