The CBDT has issued a letter dated 27.08.2012 stating that there has been non-compliance and violation of the CBDT’s order in respect of posting of officers on promotion to the grade to JCIT. The CBDT has taken a stern view and threatened that the concerned officer who issued the order and the CCIT (CCA) concerned would be held personally liable.
CBDT Letter dated 27.08.2012 on violation of transfer & promotion orders (26.5 KiB, 877 hits)
This correctly interprets wednesbury unreasonableness and principle of proportionality well dealt with in OM Kumar v UOI (2001)2 SCC 386;
This Administrative law – administrative action – proportionality -principle explained of – Wednesbury principle Applicability -judicial review -primary and secondary review – if action is challenged – of discriminatory under Art 14 of the Constitution of india , the principle of proportionality is applied on merits by court by way of primary review -But if action taken is alleged to be violative of Art 14 on ground of arbitrariness, Wdnesbury principle is applied by court – by way of secondary review – Constitution of India Art 14,226, 136 – Administrative law -judicial review -primary and secondary review;
Punishment – quantum -proportionality – Wednesbury principle Explained (here under service law) (indeed applicable under taxation too!) – Applicability of – in in determining the quantum , role of administrative authority is primary and that of court is secondary, confined to see if ‘discretion’ exercised by administrative authority caused excessive ‘infringement of rights’ (here CBDT circular relevant!) – Administrative law – judicial review -based on – Wednesbury principle (of unreasonableness) and proportionality compared -constitution of india – Constitution Art 311 (for service matters) (similarly need to be applied in public matters like taxation too, per circular!) Art 14,226,136(common Articles used in all such matters!) – – ;
(c)….Punishment – wednesbury principle -SECONDARY REVIEW – – No relevant fact omitted nor any irrelevant fact taken into account nor any illegality committed by authority nor the punishment awarded SHOCKINGLY disproportionate – Punishment awarded after considering all ‘relevant material’ -held on facts …No interferance called for in Art 311 matter (or inArt. 265 matter!) – Quantum of punishment – Judicial review of (what is actual fact but facts are to be obtained not by coercion but if obtained by coercion is examined by secondary review – in tax matters even in bad in law Notices do fall under coercion!) (if any coercion is even by bad in law Tax Notices would attract the Wdnesbury principle as also proportionality – if found relevant officer adopted coercion technic cannot be spared is the purport of the CBDT circular) -in view of violation of right to life and liberty – determination of ( reading in relevance to CBDT circular cited here );
So the circular indirectly indicates their officers are normally prone to coercion would not be spared even by handing down punishments to very senior supervising officers as they cannot abdicate their responsibility is the purport – even hon tax tribunals need to note that they cannot think of sparing such officers who indulge in coercive revenue collection work is an indirect indication by the circular if read closely with Lord Green observation in 1948 – in Wednesbury corporation case that when a statute gave discretion to an administrator to take decision, the scope of judicial review would remain limited . He said, the interferance was not permissible UNLESS One or the Other of the following conditions was satisfied, namely, the Order was CONTRARY to law (statute), or relevant factors were NOT CONSIDERED , or IRRELEVANT factors were considered, or the decision was one which NO REASONABLE person could have taken.(These principles were consistently followed in the UK and in India to judge the validity of Administrative action, said the 2001 hon SC said in very clear terms so under Art 141 of the Constitution of India every Indian court without exception need to follow )(see para26 of the judgement)
(Case citation refers to Associated Picture House v Wednesbury Corporation., (1948)1 KB 223; All ER (CA); Council for Civil Services Union v Minister of Civil services(1983) AC 768 relied on )
Proportionality means… that the question whether , while regulating exercise f fundamental rights, the appropriate or least restrictive choice of measures has been made by the Legislature or the Administrator so as to achieve the Objective of the Legislation or the purpose of Administrative Order, as the case may be.
Under the , the principle the Court will see that the legislature or/and administrative authority ‘maintain proper balance between adverse effects effects which the legislation or administrative order may have on the rights, liberties or interests of persons keeping in mind the PURPOSE which they were intended to serve.’
The legislature and the administrative authority are, however , given an ‘area of discretion or a range of choices but as to whether the choice made INFRINGES the rights of EXCESSIVELY or not is for the COURT to DECIDE. That is what meant PROPORTIONATALITY.(Para 20)
EVER since 1950, the principle of Proportionality has indeed been applied VIGOROUSLY to LEGISLATIVE (and ADMINISTRATIVE)action in INDIA – while dealing with the validity of LEGISLATION infringing FUNDAMENTAL FREEDOM s ennumerted in Art 19(1) of the constitution of India – such as freedom of speech and expression…..move freely throughout India, freedom to reside and settle in any part of India….SC has to consider whether restrictions imposed by legislation disproportionate to the situation….19(2) to (6) ……..Administrative action on fundamental freedoms…in India has always been tested on the anvil (principle) of proportionality in the last 50 years even though it has not beed EXPRESSIVELY stated that the principle that is applied is the proportionality principle……(‘paras 30, 53, and 54..) there are several case laws quoted(Pl read the said judgements to clearly further understand how inf=dian judiciary is committed to citizens rights !..
in these statements no administrator can work as whimsically as he wants and he or she would encounter any sad situation if he fails to follow the principles, definitely some bad things await him or her! thanks
This correctly interprets wednesbury unreasonableness and principle of proportionality well dealt with in OM Kumar v UOI (2001)2 SCC 386;
This Administrative law – administrative action – proportionality -principle explained of – Wednesbury principle Applicability -judicial review -primary and secondary review – if action is challenged – of discriminatory under Art 14 of the Constitution of india , the principle of proportionality is applied on merits by court by way of primary review -But if action taken is alleged to be violative of Art 14 on ground of arbitrariness, Wdnesbury principle is applied by court – by way of secondary review – Constitution of India Art 14,226, 136 – Administrative law -judicial review -primary and secondary review;
Punishment – quantum -proportionality – Wednesbury principle Explained (here under service law) (indeed applicable under taxation too!) – Applicability of – in in determining the quantum , role of administrative authority is primary and that of court is secondary, confined to see if ‘discretion’ exercised by administrative authority caused excessive ‘infringement of rights’ (here CBDT circular relevant!) – Administrative law – judicial review -based on – Wednesbury principle (of unreasonableness) and proportionality compared -constitution of india – Constitution Art 311 (for service matters) (similarly need to be applied in public matters like taxation too, per circular!) Art 14,226,136(common Articles used in all such matters!) – – ;
(c)….Punishment – wednesbury principle -SECONDARY REVIEW – – No relevant fact omitted nor any irrelevant fact taken into account nor any illegality committed by authority nor the punishment awarded SHOCKINGLY disproportionate – Punishment awarded after considering all ‘relevant material’ -held on facts …No interferance called for in Art 311 matter (or inArt. 265 matter!) – Quantum of punishment – Judicial review of (what is actual fact but facts are to be obtained not by coercion but if obtained by coercion is examined by secondary review – in tax matters even in bad in law Notices do fall under coercion!) (if any coercion is even by bad in law Tax Notices would attract the Wdnesbury principle as also proportionality – if found relevant officer adopted coercion technic cannot be spared is the purport of the CBDT circular) -in view of violation of right to life and liberty – determination of ( reading in relevance to CBDT circular cited here );
So the circular indirectly indicates their officers are normally prone to coercion would not be spared even by handing down punishments to very senior supervising officers as they cannot abdicate their responsibility is the purport – even hon tax tribunals need to note that they cannot think of sparing such officers who indulge in coercive revenue collection work is an indirect indication by the circular if read closely with Lord Green observation in 1948 – in Wednesbury corporation case that when a statute gave discretion to an administrator to take decision, the scope of judicial review would remain limited . He said, the interferance was not permissible UNLESS One or the Other of the following conditions was satisfied, namely, the Order was CONTRARY to law (statute), or relevant factors were NOT CONSIDERED , or IRRELEVANT factors were considered, or the decision was one which NO REASONABLE person could have taken.(These principles were consistently followed in the UK and in India to judge the validity of Administrative action, said the 2001 hon SC said in very clear terms so under Art 141 of the Constitution of India every Indian court without exception need to follow )(see para26 of the judgement)
(Case citation refers to Associated Picture House v Wednesbury Corporation., (1948)1 KB 223; All ER (CA); Council for Civil Services Union v Minister of Civil services(1983) AC 768 relied on )
Proportionality means… that the question whether , while regulating exercise f fundamental rights, the appropriate or least restrictive choice of measures has been made by the Legislature or the Administrator so as to achieve the Objective of the Legislation or the purpose of Administrative Order, as the case may be.
Under the , the principle the Court will see that the legislature or/and administrative authority ‘maintain proper balance between adverse effects effects which the legislation or administrative order may have on the rights, liberties or interests of persons keeping in mind the PURPOSE which they were intended to serve.’
The legislature and the administrative authority are, however , given an ‘area of discretion or a range of choices but as to whether the choice made INFRINGES the rights of EXCESSIVELY or not is for the COURT to DECIDE. That is what meant PROPORTIONATALITY.(Para 20)
EVER since 1950, the principle of Proportionality has indeed been applied VIGOROUSLY to LEGISLATIVE (and ADMINISTRATIVE)action in INDIA – while dealing with the validity of LEGISLATION infringing FUNDAMENTAL FREEDOM s ennumerted in Art 19(1) of the constitution of India – such as freedom of speech and expression…..move freely throughout India, freedom to reside and settle in any part of India….SC has to consider whether restrictions imposed by legislation disproportionate to the situation….19(2) to (6) ……..Administrative action on fundamental freedoms…in India has always been tested on the anvil (principle) of proportionality in the last 50 years even though it has not beed EXPRESSIVELY stated that the principle that is applied is the proportionality principle……(‘paras 30, 53, and 54..) there are several case laws quoted(Pl read the said judgements to clearly further understand how inf=dian judiciary is committed to citizens rights !..
in these statements no administrator can work as whimsically as he wants and he or she would encounter any sad situation if he fails to follow the principles, definitely some bad things await him or her! thanks