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TMI Blog2019 (4) TMI 1859X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re A1 order. Thereupon, the original applications were filed seeking to quash Annexure A2 and to declare that the respondents are entitled to get Annexure A1 implemented, since they were found entitled for transfer by the committee constituted for ICT. By the impugned order, the Tribunal issued a direction to immediately accommodate the 8 applicants whose names had been forwarded, in accordance with the guidelines for ICT issued by the Customs and Central Excise Board. In O.A.Nos.148 and 164 of 2018, the Tribunal set aside Annexure A2 order, to the extent it cancelled the transfer of the respondents herein as per Annexure A1 and declared that the respondents herein are entitled to get Annexure A1 implemented since they were found eligible by the Committee constituted for considering the proposals for ICT, in terms of the relevant orders. It was further directed that those respondents, who are yet to be relieved from their current job for transfer to the Lucknow/Meerut Zones, will be relieved within 15 days and duly accommodated in the post in the transferee Zone, as already ordered. 4. Arguments were advanced by Additional Solicitor General Sri. Natarajan, Senior Counsel O.V. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Provision - Each Cadre Controlling Authority (CCA) shall have its own separate cadre, unless otherwise directed by the Central Board of Excise and Customs. 7. Relying on the above provision, it was contended that the practice of ICT ceased to exist after introduction of the 2016 Rules. It is submitted that the practice of ICT has been completely taken away with the intention of maintaining each Commissionerate as a separate unit with a separate cadre. This, it is submitted, is with the intention of correctly maintaining the seniority, reservation etc. within the cadre and that any interference with the cadre would result in upsetting the apple cart. The learned ASG contended that inasmuch as Annexure A1 order granting ICT to the respondents was issued without authority, Annexure A2 order cancelling Annexure A1 was fully justified and the impugned order by which the Tribunal set aside Annexure A2 would result in resurrecting an illegal order. It is further contended that Annexure R4, the Recruitment Rules of 2016, is issued in exercise of the power conferred by the proviso to Article 309 of the Constitution of India and therefore, Annexure R4 cannot be varied or diluted b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Additional Solicitor General submitted that some Commissionerate s had issued orders effecting ICT, disregarding the 2016 Recruitment Rules and this had caused the Government of India to issue Circular No.F.No.A-22015/117/2016-Ad.IIIA dated 20.9.2018 [Exhibit R1(o)], informing all Commissionerates that the practice of ICT has been stopped in the light of the new Recruitment Rules of 2016. After taking into consideration Rule 4 of the Recruitment Rules, 2002 and Rule 5 of the Recruitment Rules, 2016, the Government observed in Ext.R1(o) that the Recruitment Rules of 2016 does not have a provision for recruitment by absorption and accordingly no ICT application can be considered after coming into force of the Recruitment Rules, 2016. The only exemption provided under the Circular is consideration of individual cases on extreme compassionate grounds. Even in such cases, the transfer would be allowed only on loan basis, with a maximum tenure of three years which can be extended with the specific approval of the Central Board of Indirect Taxes and Customs for a further period of two years depending upon the administrative requirement. Further, such transfers would be on condition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and it can claim immunity from challenge only on the condition that it can support the legality of its action before a court of justice. Based on the said reasoning, it is held by the High Court that in the absence of authority to transfer the petitioner therein outside his cadre, the impugned order of transfer is bad, since the same is unauthorised and without any support of law. 12. In Bhagwati Prasad 's case, the challenge was against an order of deputation by which the petitioner therein was proposed to be sent on deputation to a post outside his cadre. After an elaborate consideration of precedents, it was held by the High Court that on principle and authority, it was clear that a person belonging to a cadre cannot be deputed or transferred outside the parent department and outside the cadre. The contention is that the power vested with the Chief Commissioners to effect ICT in exceptional cases having been taken away by the introduction of the Recruitment Rules of 2016, the inter-commissionerate transfer granted under Annexure A1 is ex-facie illegal. 13. The next contention urged by the learned Additional Solicitor General was that issuance of transfer guide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of transfer. The order of the Tribunal reads as if it were sitting in appeal over the order of transfer made by the Senior Administrative Officer (competent authority). 14. In conclusion, the learned Additional Solicitor General contended that the Tribunal had exceeded its jurisdiction in directing to effect transfer of the respondents, who were only eight among the 122 officers proposed to be transferred under Annexure A1. It was submitted that by issuing such a direction, the Tribunal had virtually stepped into the shoes of the administration. It was pointed out that if the direction of the Tribunal is given effect, that would result in total chaos at the Commissionerate to which the respondents are to be transferred. It was hence contended that the order of the Tribunal was per se illegal and hence unsustainable. 15. The counter arguments for the respondents was led by Senior Counsel Sri. O. V. Radhakrishnan, ably supported by Advocates Shafik M. Adbulkhadir and Ravi. K. Pariyarath. It was contended that the impugned order was well founded and fully justified and therefore did not warrant interference. Our attention was drawn to Annexure A1 transfer order, wherei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed to continue as hitherto, without loss of seniority. The ban on ICT brought about by Ext.R1(h) was further relaxed under Ext.R1(j) by permitting ICT of Group B, C and D Officers beyond the Commissionerates having common cadre, without any loss of seniority, subject to the twin condition that (i) the transfer shall be permissible only in cases where the spouse is employed with either the Central Government or a State Government or a Public Sector Undertaking of the Central Government/State Government and (ii) that the option for change of cadre must be exercised within six months of the initial appointment of the officer, if the officer is married at the time of appointment and in cases where marriage takes place subsequent to the appointment, the option should be exercised within six months of the marriage. Ext.R1(k) is yet another decision pertaining to ICT whereunder permission for ICT of Group B, C and D Officers, without loss of seniority was made possible, in the case of officers appointed against the 5% compassionate vacancies quota. Thereafter, under Ext.R1(l), the benefit of ICT was extended to physically handicapped employees also. Reliance was also placed on Annexure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Electricity Board and another v. Atmaram Sungomal Pushani [(1989) 2 SCC 602], I.N Subba Reddy v. Andhra University and others [AIR 1976 SC 2049], B.Varadha Rao v. State of Karnataka and others [AIR 1986 SC 1955], Thrissur District Co-operative Bank v. Delson [2002 (1) KLT 852], Sashikumar v. State of Kerala [1998 (2) KLT 330] and A.B.Krishna and others v. State of Karnataka and others [ (1998) 3 SCC 495]. 17. It was submitted that even going by the information provided by the Government, the provision for ICT, which was available in the Recruitment Rules of 2002 was deleted from the Recruitment Rules of 2016, since such provision is generally not made in the Recruitment Rules. For this purpose, reliance was placed on Annexure R1 (p) R1(q), which are information provided under the Right to Information Act and contains the proposal for amendment to the Recruitment Rules and its notes, which ultimately culminated in the issuance of the Recruitment Rules of 2016. It was therefore contended that non-inclusion of the provision for ICT in the Recruitment Rules of 2016 does not in any manner effect the right of the respondents for ICT, since their right is based on Annexure A3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me reason, this Court was right in upholding the findings of the Tribunal, as per Annexure A4 judgment. Even though, Annexure A6 guidelines was issued after Annexure R4 Recruitment Rules of 2016 had come into force, the guidelines were issued in compliance of Annexure A5 order of the Tribunal, which was prior to the coming into force of the Recruitment Rules of 2016 and as such the guidelines do not have any persuasive effect, as was attempted to be canvassed by the respondents. Even otherwise, merely because guidelines pertaining to ICT had been issued, that would not have any binding effect on the respondents in view of Annexure R4 Rules. Hence, Annexure A2 order cannot be interfered with on the strength of Annexure A6 guidelines. Moreover, it has to be noted that Annexure A6 pertains to the Cochin Commissionerate alone. 21. The contention that transfer is not a condition of service and that the Recruitment Rules of 2016 does not govern the ICT of the respondents and on the other hand, the ICT is based on Annexure A3 order and Annexure A6 guidelines, has to be answered after considering the precedents cited by the learned Counsel. After careful study of the decisions re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion 'conditions of service' means all those conditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and even beyond it. We are of the opinion that the decision does not in any manner support the contention of the respondents and on the other hand lays down the position that the expression 'conditions of service' takes in all those conditions which regulate the holding of post by a person, from the time of his appointment till his retirement and even beyond it. The respondents cannot therefore rely on Subba Reddy s case to contend that transfer does not fall within the expression 'conditions of service'. In Varadha Rao v. State of Karnataka and others [AIR 1986 SC 1955] , the short point that arose for consideration was whether an order of transfer of a Government servant made by an authority other than the Government itself, is appealable before the Government under Rule 19 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957. While dilating on this point, the Apex Court explained the decision in E. P. Royappa v. State of Tamil Nadu [AIR 1974 SCC 555] wherein, it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h, based on the decision in Varadha Rao's case (supra), that transfer is not a condition of service and is only an incident of service. The Division Bench held that in Varadha Rao's case, the Supreme Court had only held that transfer is an incident of service of an employee and therefore, transfer of an employee does not result in any change in the conditions of service, to the disadvantage of the employee. The Division Bench placed reliance on the decision of the Apex Court in State of U.P and others v. Gobardhan Lal [AIR 2004 SC 2165] wherein the Apex Court had observed as follows: It is too late in the day for any Government servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or Rule) or passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... niority. Their promotions were challenged on the ground that the Karnataka Civil Services (General Recruitment) Rules, 1977 was not applicable and that promotion to the post of leading firemen shall continue to be governed by the Mysore Fire Force (Cadre Recruitment) Rules, 1971 made by the State Government under Section 39 of the Fire Force Act, 1954. Answering the issue involved, the Apex Court held as follows: It is no doubt true that the Rule-making authority under Article 309 of the Constitution and Section 39 of the Act is the same, namely, the Government (to be precise, Governor, under Article 309 and Govt. under Section 39), but the two jurisdictions are different. As has been seen above, power under Article 309 cannot be exercised by the Governor, if the legislature has already made a law and the field is occupied. In that situation, Rules can be made under the Law so made by the legislature and not under Article 309. It has also to be noticed that Rules made in exercise of the rule-making power given under an Act constitute Delegated or Subordinate legislation, but the Rules under Article 309 cannot be treated to fall in that category and, therefore, on the pri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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