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TMI Blog2015 (9) TMI 918X X X X Extracts X X X X X X X X Extracts X X X X ..... erred 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. - W.P. (C) No. 1710 of 2013 - - - Dated:- 21-7-2014 - S. Ravindra Bhat and Vipin Sanghi, JJ. Shri C. Hari Shankar and Jagdish N., Advocates, for the Petitioner. Shri R.V. Sinha, R.N. Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity, by establishment order of 30-9-2009, which posting she commenced on 7-10-2009. Nothing in this order indicated that the transfer was on deputation basis, nor was there any period of deputation mentioned in the order. The Ernakulam bench of the CAT, in a challenge to the relaxation on spouse grounds, of the ban on ICTs in Groups B, C and D, and particularly the no loss of seniority rule, by order of 16-5-2011 ( the May 2011 CAT order ) quashed the 2009 circular, insofar as it allowed transfer without loss of seniority. The May 2011 CAT order reasoned that retention of seniority was ordinarily only when the transfer was in public interest and transfers on request, like those on spouse grounds, resulted in loss of seniority. Under the Allocation of Business Rules, policy decisions regarding seniority in the services were within the exclusive jurisdiction of the DoPT. Consequently, other departments such as the CBEC in this case, were not permitted to take separate decisions in this regard without consulting the DoPT. 4. Another OA 3305/2010 challenging the 2009 circular (in which the petitioner was arrayed as a respondent) was dismissed by the Principal Bench of the CAT by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... too with retrospective effect, to the parent zone, second, this order was contrary to the order of the DoPT of 3-4-1986, mandating that spouses should be posted in the same station, third, in any event, the second respondent lacked the jurisdiction to treat the period spent by her at Delhi as deputation, finally, there was no consultation with the DoPT before the repatriation order was issued, despite directions to that effect in the May 2011 and July 2011 CAT orders, as well as the order of the Delhi High Court. The CAT stayed the order of repatriation. However, despite this, the petitioner and the other two applicants were not permitted to resume their posts in Delhi on the ground that the CAT had stayed the operation of an order that has already been executed, and had not directed restoration to status quo ante. The salaries due to the petition and applicants from the date of the repatriation order were also not disbursed on the ground that they had been relieved from their posts in Delhi. The CAT dismissed the OA 462/2012 by order of 14-8-2012 ( the impugned order ). The petitioner s spouse and children are at Delhi, and consequently, she later applied for deputation in the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the ban on ICTs only applies to non-Gazetted Group B posts and not to Gazetted Group B posts. The post of Superintendent, was a Group B Gazetted post, and hence, the petitioner was validly repatriated back to Chennai. 11. It is apparent from the above narrative that the rigors of the policy decision embodied in the 2004 circular, to ban ICTs altogether, was relieved somewhat, by the two CBEC circulars in 2009. These were objected to by the officials in the Ernakulam Bench of the CAT. The CAT held that the protection given to seniority was unwarranted. However, it allowed the respondents, especially the CBEC to take a policy decision in consultation with the DoPT. The reasoning of the Ernakulam Bench was on specific lines, i.e. that the individual department could frame general policies but those which tended to have universal impact, such as seniority, had to be necessarily taken after consultation with the DoPT. That ruling was followed by the Principal Bench of the CAT. 12. The CBEC s 2011 circular reiterated its policy permitting ICTs, but this time, it consciously stated that there would be no protection of seniority. In other words, officials seeking transfer had to f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f carrying the seniority in the event of ICT of spouses. There is no dispute that the petitioner s transfer in 2009 was in accordance with the existing CBEC guidelines. The only rationale of the impugned decision is that a subsequent clarification issued in 2012 merges with the conditions of the 2011 circular. This Court finds that the appropriateness of such finding would depend on the context. It is clear that the decision which the CAT relied upon i.e. S.B. Bhattacharjee v. S.D. Majumdar and Ors. (2007) 10 SCC 513, pertained to selection and promotion of an officer and the applicability of later clarifications with respect to qualifications to be held. At the relevant point of time in such facts, unlike in this case, no kind of right can be said to vest in an officer or employee. However, it is clear that after a right vests in an employee (here, by way of the 2009 order directing the petitioner s transfer to Delhi), a subsequent clarificatory circular issued in 2012 cannot retrospectively snatch away her right. 15. As observed earlier, save and except the plea of seniority, which affected the aggrieved employees of the Ernakulam Commissionerate (an issue which was to be fina ..... X X X X Extracts X X X X X X X X Extracts X X X X
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