2019 (4) TMI 1859 - HC - Indian Laws

Recruitment Rules - Validity of Notifications issued for the purpose of filling up the available vacancies by way of direct recruitment and to direct the Chief Commissioner, Patna - whether, the absence of provision for ICT in the Recruitment Rules of 2016 would curtail the right of the respondents for ICT? - whether the executive orders leading up to Annexure A3 can exist independently and govern the field of ICT, de hors Annexure R4 Rules of 2016? HELD THAT - The contention urged, based on the principle laid down in the afore-mentioned decision is that, insofar as the Recruitment Rules of 2016 do not contain any provision regarding transfer, it is not an occupied field and therefore, Annexure A3, which is an Executive Order governing the issue of ICT is a valid order. The said contention regarding the absence of provision prohibiting ICT in the Recruitment Rules of 2016 and the validity of Annexure A3 order cannot be countenanced for the following reasons; it is not in dispute that Annexure R3 Recruitment Rules of 2002 contained a provision enabling ICT. It is an admitted fact that no such provision is included in the Recruitment Rules of 2016 and on the other hand, Rule 5 of Annexure R4 specifically stipulate that each Cadre Controlling Authority (CCA) shall have its own separate cadre, unless otherwise directed by the Central Board of Excise and Customs. Any inter-commissionerate transfer would violate the unique identity of each cadre envisaged under Rule 5 of Annexure R4, the Recruitment Rules of 2016. In that view of the matter, ICT orders issued on the strength of Annexure A3 would definitely be a transgression into the field occupied by Annexure R4 Rules issued in exercise of the power under the proviso to Article 309 of the Constitution of India. There are considerable force in the contention urged by the learned Additional Solicitor General that Annexure A1 having been issued without authority and in violation of the Recruitment Rules of 2016, was invalid and hence the cancellation of Annexure A1 by issuing Annexure A2 was perfectly in order. Having held that transfer is a condition of service, we also hold that it is well within the power of the employer to take a policy decision either to grant or not to grant ICT to its employees. There cannot be a judicial review and interference on such policy decisions. In the absence of a provision for ICT in Annexure R4 Recruitment Rules of 2016, the Tribunal could not have found fault with the authorities in having issued Annexure A2 order cancelling Annexure A1 by which ICT was granted to the respondents and others. Petition allowed.

Summary

Issues Involved:
1. Validity of Inter-Commissionerate Transfer (ICT) applications.
2. Authority to issue ICT orders under the Recruitment Rules.
3. Impact of the 2016 Recruitment Rules on ICT.
4. Judicial review of administrative decisions regarding ICT.

Detailed Analysis:

1. Validity of Inter-Commissionerate Transfer (ICT) Applications:
The respondents, Inspectors of Central Tax and Central Excise, applied for ICT and challenged the direct recruitment notifications for the vacancies they sought. The Tribunal directed the accommodation of the applicants per ICT guidelines. However, the petitioners contended that the ICT practice ceased post-2016 Recruitment Rules, which did not include provisions for ICT, unlike the 2002 Rules. The Tribunal's decision was based on the guidelines and committee recommendations but was contested by the petitioners on the grounds of lacking statutory backing.

2. Authority to Issue ICT Orders Under the Recruitment Rules:
The petitioners argued that the 2016 Recruitment Rules, issued under Article 309 of the Constitution, superseded the 2002 Rules and did not permit ICT. The Tribunal's directive to implement Annexure A1 (ICT order) was challenged as it lacked statutory authority. The court cited precedents, emphasizing that statutory rules cannot be overridden by executive orders or circulars, reinforcing that the 2016 Rules did not allow for ICT and thus, any ICT orders post-2016 were invalid.

3. Impact of the 2016 Recruitment Rules on ICT:
The 2016 Rules established separate cadres for each Cadre Controlling Authority (CCA), eliminating ICT provisions present in the 2002 Rules. The court noted that the absence of ICT provisions in the 2016 Rules indicated an intentional policy shift to maintain cadre integrity. The Government's Circular No.F.No.A-22015/117/2016-Ad.IIIA dated 20.9.2018 clarified that ICT was not permissible under the 2016 Rules, except on extreme compassionate grounds, and even then, on a loan basis with specific conditions.

4. Judicial Review of Administrative Decisions Regarding ICT:
The court held that transfer is a condition and incidence of service, falling within the employer's policy domain. Judicial review is limited unless the transfer order is mala fide or violates statutory provisions. The Tribunal's interference in administrative decisions regarding ICT was deemed overreach. The court upheld the petitioners' contention that Annexure A1 (ICT order) was issued without authority and its cancellation via Annexure A2 was justified.

Conclusion:
The court concluded that the absence of ICT provisions in the 2016 Recruitment Rules curtailed the respondents' right to ICT. The executive orders and guidelines cited by the respondents could not supersede the statutory rules. The Tribunal's orders were set aside, validating the cancellation of ICT orders and upholding the administrative decision to maintain separate cadres per the 2016 Rules. The original petitions were allowed, affirming the legality of the administrative actions and the policy decision against ICT.