Hon'ble Devendra Kumar Arora,J.
Heard Sri. Raghvendra Kumar Singh Senior Advocate assisted by Sri. Anurag Kumar Singh learned counsel for the petitioner and Sri. D.K Upadhyay learned Chief Standing Counsel for opposite party nos. 1 to 3 and Sri. Shivakant Tiwari learned Advocate for opposite party no. 4.
The petitioner has challenged the order dated 02.06.2010 passed by the Commissioner Commercial Tax State of U.P, Lucknow whereby he has been posted as Deputy Commissioner ( Tax Assessment/Tax Revcovery) Commercial Tax, Gautambudha, Nagar. The learned counsel for the petitioner submits that earlier by means of order dated 30.06.2008, the petitioner was transferred from the post of Deputy Commissioner Sector- 1 Commercial Tax Merrut to the post of Deputy Commissioner Sector 11 Commercial Tax, Noida . Subsequently, pursuance to the another transfer order dated 02.03.3009 issued by the State Government he was transferred to the post of Deputy Commissioner (Tax Assessment) Sector- 14 Commercial Tax Noida and he took over charge as such on 02.03.2009 itself, since then he had been working on the said post till the date of transfer impugned.
The learned Counsel for the petitioner submits that all aforesaid transfer orders show that all the transfer orders have been issued by the State Government but the order impugned has been passed by the Commissioner Commercial Tax State of U.P., Lucknow who is not vested with the power of transfer therefore, the order is without jurisdiction.
He further claims malafidy against the opposite party no. 5 who recommended his transfer to the post of deputy Commissioner(Tax Assessment/Tax Recovery) Commercial Tax, Gautambudha Nagar as well as simultaneously for the posting of opposite party no. 4 as Deputy Commissioner Commercial tax Sector 14 Noida, Gautambudha Nagar. It is stated that all the times till the month of March, 2010 the achievement of the petitioner's recovery being highest except one out of seventeen Deputy Commissioners work have been appreciated by opposite party no. 5 but on being bifurcated some of the area from the petitioner's jurisdiction when he apprised the opposite party no. 5 that he would not be in a position to achieve so much target as fixed the opposite party no. 5, he annoyed with the same and recommended his transfer absolutely on baseless and unfounded ground. He also raised finger in the functioning of opposite party no.4.
On the other hand Mr.D.K. Upadhyay learned Chief Standing Counsel by inviting the attention of this Court towards Rule 3 U.P. Value Added Tax Rule, 2008 submitted that no doubt the State Government may create or abolished zone and region and range of the Additional Commissioner Joint Commissioner as well as Deputy Commissioner as well as specify the circle which including in the jurisdiction of principle Tribunal but it is the Commissioner who may create or abolish a circle and fix or re-fix the limit thereof as well as the sector within the circle and re-fix the limit thereof. He has also power to determine the respective jurisdiction of the Deputy Commissioner Assistant Commissioner ( Assesment) Commercial Tax Officer in Circle).
He further submits that the Commissioner has also power to exercise the superintendence and administrative control over the officers, accordingly, he submits that no doubt the earlier order has issued by the State Government but since the power is vested with the Commissioner the Commissioner has exercised his power in changing the sector which is supported with Rule 3 of the Rules and there is no illegality in the same.
In reply to his objection. Learned counsel for the petitioner Sri Raghvendra Kumar Singh further submitted that under Rule 4 (9) it is provided that authorities under the Act shall exercise powers in their respective jurisdiction as may be prescribed or as may be notified by the State Government in exercise power vested in it under the Rules. Under the strength of the aforesaid provisions he submits that ones the State Government has posted the petitioner as Deputy Commissioner Sector 14 Commercial Tax Gautambudha Nagar the Commissioner has no jurisdiction to change the same as the order issued by the State Government can be changed only by the State Government itself. He also placed one order dated 09.06.2010 issued by the State Government whereby the transfer order of the Assistant Commissioner has been issued by the State Government only. In the light of this order he submits that petitioner is holding the post of Deputy Commissioner which is higher then the Assistant Commissioner, therefore, the power of transfer can be exercised only by the State Government not by the Commissioner. He further submits that under the guise of posting to another sector which is called a local change of posting by the other side. The opposite party no. 5 has recommended the transfer of opposite party no. 5 in place of the petitioner just to favour him whose functioning has been questioned earlier for evasion of tax. After hearing the learned counsel for the parties we find that the petitioner has achieved highest target except one till march 2010 out of seventeen officers. As is evident from annexure 5 to the writ petition he has been appreciated time to time for his work. So far as the jurisdiction of Commissioner Commercial Tax to transfer the petitioner is concerned. We find that sub Rule 3 of the Rules 2008 speaks that:-
The Commissioner shall determine the respective jurisdiction of an Additional Commissioner (Appeal), a joint Commissioner (Special Investigation Branch) or Joint Commissioner (Enforcement) or Joint commissioner (Appeal) or Joint Commissioner (Executive ) or Joint Commissioner ( Assessment) in corporate circle, Deputy Commissioner of a range, Deputy Commissioner, Assistant Commissioner or Commercial Taxes Officer where there are more than one-
(a) Additional Commissioner (Appeal), Joint Commissioner (Special Investigation Branch) or Joint Commissioner (Enforcement), Joint Commissioner (Appeal), Joint Commissioner (Executive) in a Zone; or or
(b) Deputy Commissioner (Check Post), Deputy Commissioner (Enforcement) or Deputy Commissioner (Special Investigation Branch) in a region; or © Deputy Commissioner (Assessment), Assistant Commissioner (Assessment) or Commercial Taxes Officer in a circle, As is evident from the aforesaid provisions of the Rule it is obvious that the Commissioner can exercise the power of determination of jurisdiction where there are more than one Officer. The Noida is one circle and it is divided in 14 sector and the Officers are being posted by assigning sector by the State government itself. It is not the case that there is other officer posted in sector 14 except the petitioner.
Therefore, prima-facie, we are of the view find that the provisions of sub-Rule 3 of Rule 3 of Rules 2008 do not protect the order impugned. Therefore, we are hereby stayed the order impugned dated 02.06.2010 ( Annexure No. 1) issued by the Commissioner Commercial Tax State of U.P Lucknow till further order of this Court with a direction to State Government to allow the petitioner to function as Deputy Commissioner Sector 14 Commercial Tax Gautambudha Nager.
Sri. Shivakant Tiwari learned Advocate who put in appearance by filing vakalatnama on behalf of opposite party no. 4 even before issuing notice to him also tried to defend the order impugned but since in issuing the transfer order the collusion of opposite party no. 4 with the opposite party no. 5 has been alleged which also shows prima-facie the malafide action of the opposite party no.5, the arguments raised by Sri Shivakant Tiwari are not appreciable to this Court rather the opposite party no.5 is asked to file his personal affidavit to justify his action for recommending the posting of opposite party no.4 in place of the petitioner whose performance has been inferior to the petitioner.
Learned Standing Counsel prays for and is granted two weeks' time to file counter affidavit.
List on 12.07.2010.
On the next date of listing learned Chief Standing Counsel shall produce the relevant record.
Order Date :- 21.6.2010 Shahnaz