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2022 (3) TMI 552 - SC - Indian LawsValidity of orders of the Central Administrative Tribunal on the issue of the withdrawal of Inter-Commissionerate Transfers (ICT) - High Court held that ICTs would violate the unique identity of each cadre envisaged under Rule 5 of RR 2016 and hence the circular withdrawing ICTs is not invalid - HELD THAT - Rule 5 of RR 2016 postulates that each CCA has a separate cadre and does not contain a provision for bringing in, by way of absorption, persons from outside the cadre. Inducting persons from outside the cadre by absorption requires a specific provision in the subordinate legislation for the simple reason that the concept of a cadre would otherwise militate against bringing in those outside the cadre. That is the reason why Rule 4(ii) of the erstwhile RR 2002 contained a specific provision to this effect. That provision has however not been included when RR 2016 were framed. If the authority entrusted with the power of framing rules under Article 309 of the Constitution did so on the ground that the provision was subject to misuse and was contrary to the interests of the administration, no employee can assert a vested right to claim an ICT. Undoubtedly, while all matters pertaining to the CBEC and CBDT are under the domain of the Department of Revenue, there has to be a harmonious construction with the subjects which are assigned to the DoPT. In fact, the need for a harmonious reading is emphasized, as we have seen earlier, in Rule 4(4) of The Government of India (Transaction of Business) Rules 1961, which requires the advice of DoPT to be sought on methods of recruitment and conditions of service and on the interpretation of existing orders relating to recruitment and conditions of service - the appellants have sought to urge that Rule 4(ii) of RR 2002 was not included while RR 2016 were being framed on the advice of the DoPT on the ground that such a provision is generally not made in the recruitment rules. This submission is based on the disclosure made by the Department of Revenue under the Right to Information Act 2005 on 3 July 2018. The realm of policy making while determining the conditions of service of its employees is entrusted to the Union for persons belonging to the Central Civil Services and to the States for persons belonging to their civil services. This Court in the exercise of judicial review cannot direct the executive to frame a particular policy. Yet, the legitimacy of a policy can be assessed on the touchstone of constitutional parameters. The State, consistent with the mandate of Part III of the Constitution, must take into consideration constitutional values while designing its policy in a manner which enforces and implement those values. The State in the present case has been guided by two objectives first, the potential for abuse of ICTs and second, the distortion which is caused in service leading to plethora of litigation. The State while formulating a policy for its own employees has to give due consideration to the importance of protecting family life as an element of the dignity of the person and a postulate of privacy. How a particular policy should be modulated to take into account the necessities of maintaining family life may be left at the threshold to be determined by the State. In crafting its policy however the State cannot be heard to say that it will be oblivious to basic constitutional values, including the preservation of family life which is an incident of Article 21 - While proscribing ICTs which envisage absorption into a cadre of a person from a distinct cadre, the circular permits a transfer for a stipulated period on a loan basis. Appeal disposed off.
Issues Involved:
1. Validity of the withdrawal of Inter-Commissionerate Transfers (ICTs) 2. Interpretation of Recruitment Rules 2016 (RR 2016) and their impact on ICTs 3. Applicability of executive instructions and circulars in the absence of specific provisions in RR 2016 4. Alleged discrimination and violation of fundamental rights under Articles 14, 15, and 21 of the Constitution Detailed Analysis: 1. Validity of the withdrawal of Inter-Commissionerate Transfers (ICTs): The High Court of Kerala dealt with petitions challenging the orders of the Central Administrative Tribunal on the withdrawal of ICTs. The High Court concluded that the Recruitment Rules 2016 (RR 2016) do not contain any provision for ICTs and stipulate that each Cadre Controlling Authority (CCA) will have its own separate cadre. The High Court held that ICTs would violate the unique identity of each cadre envisaged under Rule 5 of RR 2016, and hence, the circular withdrawing ICTs is not invalid. 2. Interpretation of Recruitment Rules 2016 (RR 2016) and their impact on ICTs: RR 2016 replaced RR 2002, which had a specific provision for ICTs under Rule 4(ii). Rule 5 of RR 2016, however, does not contain a similar provision and stipulates that each CCA shall have its own separate cadre unless otherwise directed by the Central Board of Excise and Customs (CBEC). The absence of Rule 4(ii) in RR 2016 indicates that the cadre is treated as a posting unit, and there is no provision for absorbing persons from outside the cadre. 3. Applicability of executive instructions and circulars in the absence of specific provisions in RR 2016: The appellants argued that in the absence of a specific provision for ICTs in RR 2016, the executive instructions and circulars issued by the Department of Personnel and Training (DoPT) and the Department of Revenue should govern ICTs. However, the court held that executive instructions could supplement but not override the rules framed under Article 309 of the Constitution. Since RR 2016 do not provide for ICTs, the executive instructions cannot be used to allow ICTs. 4. Alleged discrimination and violation of fundamental rights under Articles 14, 15, and 21 of the Constitution: The appellants contended that the circular dated 20 September 2018, which imposes a blanket prohibition on ICTs, violates the fundamental rights conferred by Articles 14 and 21 of the Constitution. They argued that the circular discriminates between Group 'A' and Group 'B'/'C' employees and results in indirect discrimination against women, violating Articles 15(1) and 16(1) of the Constitution. The court held that transfer is an incident of service, and it is within the employer's powers to take a policy decision either to grant or not to grant ICTs. The court emphasized that judicial review cannot interfere with such policy decisions unless they violate constitutional values. Conclusion: The Supreme Court upheld the High Court's judgment, stating that: - RR 2016 do not contain a provision for ICTs. - Rule 5 of RR 2016 stipulates that each CCA shall have its own separate cadre unless directed otherwise by CBEC. - ICTs would violate the unique identity of each cadre envisaged in Rule 5. - The circular dated 20 September 2018 is valid as it aligns with RR 2016. - Transfer is a condition of service, and policy decisions regarding ICTs are within the employer's discretion. - The court left it open to the respondents to revisit the policy to accommodate the posting of spouses, the needs of the disabled, and compassionate grounds, ensuring that constitutional values are protected.
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