2015 (9) TMI 918 - HC - Indian Laws

Maintenance of seniority - writ petitioner challenges the judgment of the Central Administrative Tribunal ( CAT ) dated 14-8-2012 - The petitioners contend that there is no legal basis for the repatriation order, and that it is contrary to the DoPT OM of 3-4-1986. Moreover, the repatriation order violated both the July 2011 CAT order as well as the order of the Delhi High Court in that the CBEC did not consult the DoPT. Finally, the petitioner submits that the repatriation order was premature in that the issue was pending before the DoPT and the CBEC pursuant to the orders of the CAT and the Delhi High Court. The petitioner ever had made a representation on 8-2-2012 to the CBEC that the repatriation order be withdrawn, on this basis. Held that - save and except the plea of seniority, which affected the aggrieved employees of the Ernakulam Commissionerate (an issue which was to be finally settled by the DoPT), there was no question of any cloud on the CBEC s authority to frame policies. There is also no dispute that in terms of the 2009 circular, the petitioner was transferred to Delhi; the circular issued in 2011 clarified that she would not secure any seniority. Given these circumstances, the findings of the CAT cannot be sustained. There cannot be any quarrel with the general proposition that in matters of transfer, judicial intervention is ordinarily not called for. At the same time, the Courts have underlined that wherever existing rules or regulations having statutory force are involved, the right of the employee to be considered in the context of those rules has to prevail. In the present case, the 2009 circular as well as the subsequent 2011 circular, in between which the petitioner was transferred to Delhi, did not disqualify her from seeking an ICT. A subsequent circular dated 15-2-2012, almost three years after her joining of service, barring gazetted Group-B officers from seeking such ICT, could not, therefore, be a valid reason to repatriate her, in effect, a denial of a right that vested in her in 2009. - Decided in favor of appellant.

Summary

Issues Involved:
1. Validity of the petitioner's repatriation to Chennai.
2. Whether the period spent by the petitioner in Delhi could be treated as on deputation basis.
3. Applicability of the 2011 CBEC circular and its subsequent clarification in 2012.
4. Compliance with the DoPT guidelines regarding spousal posting and consultation.

Issue-wise Detailed Analysis:

1. Validity of the petitioner's repatriation to Chennai:

The petitioner challenged the Central Administrative Tribunal (CAT) judgment which upheld her repatriation to Chennai. The petitioner argued that the CAT's judgment unduly focused on the question of seniority, which she had conceded, rather than the validity of her transfer. The petitioner was initially transferred to Delhi in 2009 under the CBEC's policy that allowed Inter-Commissionerate Transfers (ICT) on spousal grounds without loss of seniority. However, the CBEC's 2011 circular lifted the ban on ICTs but stipulated that transferees would lose seniority. The petitioner's repatriation was ordered in 2012 based on a clarification that the 2011 circular did not apply to Group B Gazetted officers, which included her post. The High Court found that the petitioner's transfer in 2009 was valid under the then-existing guidelines, and the subsequent 2012 clarification could not retroactively invalidate her transfer. Therefore, the repatriation order was deemed unlawful.

2. Whether the period spent by the petitioner in Delhi could be treated as on deputation basis:

The petitioner contended that her transfer order did not specify that it was on a deputation basis, nor did it mention any deputation period. The High Court noted that a deputation requires consent from both the lending and borrowing departments, a deputation allowance, and a specified period, none of which were present in the petitioner's case. The petitioner's order of ICT stated that she would lose her lien in the original post after two years, indicating a permanent transfer rather than a deputation. The High Court concluded that treating her period in Delhi as deputation was invalid.

3. Applicability of the 2011 CBEC circular and its subsequent clarification in 2012:

The 2011 CBEC circular allowed ICTs but stipulated a loss of seniority. The 2012 clarification stated that the 2011 circular did not apply to Group B Gazetted officers. The High Court found that the petitioner's transfer in 2009 was made under the guidelines prevailing at that time, which did not disqualify her from seeking ICT. The High Court held that a subsequent clarification could not retroactively affect a right that had already vested in the petitioner. Therefore, the 2012 clarification could not be used to justify her repatriation.

4. Compliance with the DoPT guidelines regarding spousal posting and consultation:

The petitioner argued that her repatriation violated the DoPT's guidelines mandating spousal postings at the same station. Additionally, the repatriation order was issued without consulting the DoPT, contrary to the CAT and High Court's previous directions. The High Court observed that the CBEC's authority to frame guidelines remained intact except for decisions on seniority, which required consultation with the DoPT. Since the petitioner's transfer was in line with the existing CBEC guidelines and the DoPT's spousal posting policy, the repatriation order was found to be in violation of these guidelines.

Conclusion:

The High Court set aside the CAT's impugned order and quashed the repatriation order transferring the petitioner back to Chennai. The writ petition was allowed, affirming the petitioner's right to remain in her transferred post in Delhi.