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TMI Blog2022 (3) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... 02 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OR Mr. Yashraj Singh Deora, AOR Mr. Shyam Agarwal, Adv. Ms. Vibha Datta Makhija, Sr. Adv. Mr. Vikas Singh, Sr. Adv. Mr. Ashish Pandey, Adv. Mr. Rishi Kapoor, Adv. Mr. Kapish Seth, Adv. Mr. Prateek Rai, Adv. Mr. Ashutosh Bhardwaj, Adv. Mr. Akanshya Rai, Adv. Ms. Saksha Jha, Adv. Mr. Sandeep Sharma, Adv. Mr. Vishwa Pal Singh, AOR Mr. Ronak Karanpuria, AOR JUDGMENT Dr Dhananjaya Y Chandrachud, J A Facts .................................................................................................................... 4 B Relevant circulars and notifications .............................................................. 10 B.1 Executive Instructions issued by DoPT .................................................. 10 B.2 Circulars issued by Department of Revenue, Ministry of Finance ....... 14 C Submissions ..................................................................................................... 19 D Analysis ............................................................................................................ 26 PART A A Facts 1 A Division Bench of the High Court of Kerala dealt with a batch of petitions under Article 226 of the Constitution challenging ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tra Board of Indirect Taxes and Customs (CBIC) (ii) Notwithstanding anything contained in sub-rule (1), the jurisdictional Chief Commissioner of Central Excise may, if he considers to be necessary or expedient in the public interest so to do and subject to such conditions as he may determine having regard to the circumstances of the case and for reasons to be recorded in writing, order any post in the Commissionerate of Central Excise to be filled by absorption of persons holding the same or comparable posts but belonging to the cadre another Commissionerate or Directorate under the Central Board of Excise and Customs." 4 RR 2002 were superseded and substituted by RR 2016. Rule 5 of RR 2016 provides that: "5. Special Provision.- Each Cadre Controlling Authority (CCA) shall have its own separate cadre, unless otherwise directed by the Central Board of Excise and Customs." 5 A comparison of Rule 4 of RR 2002 with Rule 5 of RR 2016 would indicate that Rule 5 is similar to Rule 4(i) of the erstwhile Rules. Rule 4(i) stipulates that each Commissionerate shall have its own separate cadre, unless otherwise directed by the CBIC. Rule 5 of RR Rules 2016 substitutes the expression "CCA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay be contradictory to it" 3. It has come to the notice of this office that various CCAs (Cadre Control Authorities) are taking divergent stands on the issue of Inter Commissionerate Transfers (!CT) of officers in the cadre of Inspector on the basis of guidelines issued vide F.No. A 22015/23/2011-AD IIIA dated 27.10.2011. The issue of Inter Commissionerate Transfer under "Central Excise and Customs Commissionerate Inspector (Central Excise, Preventive Officer and Examiner) Group B Posts Recruitment Rules, 2016" has been examined by the Board and following has been observed. 4. The ICT applications were being considered under Rule 4 of erstwhile Central Excise and Land Customs Department Inspector (Group 'C' Posts) Recruitment Rules, 2002 which stated that: "Rule 4. Special provision. - (i) Each Cadre controlling Authority (CCA) shall have its own separate cadre unless otherwise directed by the Central Board of Excise and Customs (ii) Notwithstanding anything contained in sub-rule (1), the jurisdictional Chief Commissioner of Central Excise may, if he considers to be necessary or expedient in the public interest so to do and subject to such conditions as he may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onger be permissible and accordingly all orders for such transfers which were issued on or after 26 December 2016 (the date on which RR 2016 were notified) would be non-est. The circular, however, allows that in exceptional circumstances, depending upon the merits of each case and on extreme compassionate grounds, such transfers may be allowed on 'case to case on loan basis' keeping in view the administrative requirements of the transferee and the transferred CCAs. However, the maximum tenure of such transfer has been fixed as three years which can be extended by a further period of two years. 8 The validity of the circular dated 20 September 2018 was challenged before the Central Administrative Tribunal. The challenge was upheld by the Tribunal. The High Court, in the exercise of its jurisdiction under Article 226, reversed the decision of the Tribunal. B Relevant circulars and notifications 9 In order to appreciate the controversy in its entirety, it would be necessary to deal with the circulars and office memoranda "OM" which have held the field in the past. There are two sets of executive instructions: (i) the first set concerns those instructions which were issued by the De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es to the same station. (iv) Where the spouse belongs to one Central Service and the other spouse belongs to another Central Service: - The spouse with the longer service at a station may apply to the appropriate cadre controlling authority and the said authority may post the said officer to the station, or if there is no post in that station to the State where the other spouse belonging to the other central service is posted. (v) Where one spouse belongs to an All India Service and the other spouse belongs to a public sector: The spouse employed under the public sector undertaking may apply to the competent authority and said authority may post the said officer to the station, or if there is no post under the PSU in that station, to the State where the other spouse is posted. (vi) Where one spouse belongs to a central service and other spouse belongs to PSU: The spouse employed under the PSU may apply to the competent authority and the said authority may post the officer to the station, to the State where the other spouse is posted. If, however, the request cannot be granted because the PSU has no post in the said station/State, then the spouse belonging to the central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Union Government had taken several steps towards "advancement, development and empowerment of women", while being conscious of the fact that "women employees play a positive role in their families as well as at their workplace". The annexure to the OM summarised the policies which have been formulated by the Union Government towards achieving this objective and among them was a provision for posting of spouses at the same station. In that context, the annexure stated: "Posting of husband & wife at the same station. The Govt. of India has issued detailed instructions to its offices to ensure the posting of the husband and wife at the same station so as to enable them to lead a normal family life and to ensure the education and welfare of their children (O.M. No.28034/2/27-Estt-A dated 3.4.1986 & 12.6.1997). To facilitate posting of couples in the same station, it has been approved that in case of a woman officer whose husband is posted under the Govt. of India, the 'cooling off' period may be valued up to six months so that she may get a posting at the station where her husband is posted." (vi) By an OM No.F.No.28034/9/2009-Estt.(A) dated 30 September 2009, the earlier guide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... each CCA would be exercised separately and independently by the Chief Commissioner. Hence, it was stipulated that this in effect would imply that the independent entity of each cadre shall remain intact and unchanged. (iii) On 19 February 2004, the Department of Revenue addressed a communication F. No.A.22015/3/2004-ad.IIIA to all Chief Commissioners and Commissioners of Customs and Central Excise amongst others for the discontinuance of ICTs. The circular noted that ICTs had been taking place for Group 'B', 'C' and 'D' employees on compassionate grounds. However, ICTs caused administrative difficulties resulting in protracted litigation. The matter was reviewed by the Board and it was directed that: "Accordingly, in supersession of all the previous instructions issued on the subject in the past, it has been decided that henceforth no inter-Commissionerate transfer shall be allowed for any Group B, C, D employee. Instead, in exceptional circumstances depending upon the merits of each case where it is considered necessary to accept such requests on extreme compassionate grounds, such transfers shall be allowed on deputation basis for a period of three years subject to the approva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) The transfer/change of cadre 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/ a State Government. (b) 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 such initial appointment. In case of marriage taking place subsequent to the initial appointment, the option must be exercised within six months of the marriage. Further, as far as the past cases are concerned, the option must be exercised within six months of the issue of these instructions. 4. The procedure for change of cadre will be same as stipulated in the Board's instructions dated 19.02.2004 referred to above i.e. the change of cadre will take place with the approval of the transferor and transferee Cadre Controlling Authorities. There will be no need to seek approval of the Boards for this purpose." (v) On 27 October 2011, a circular F.No.A.22015/23/2011-Ad.IIIA was issued by the CBEC noting that the ban on ICTs which was imposed by the earlier communication dated 19 February 2004 for G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icers who have been continuously on deputation and have been absorbed on ICT during the interim period from 19.02.2004 (i.e. the date from which the ban became effective) till date, their seniority will be fixed from the date of their joining on deputation in the transferred Zone/Commissionerate. viii. A written undertaking (in the enclosed format) to abide by the requisite terms and conditions will be obtained from the officers before the transfers are actually affected. ix. All pending Court cases where seniority protection/ICT has been challenged may be handled appropriately in terms of these instructions and necessary compliance furnished to the Board in due course." (vi) On 20 September 2018, CBIC issued a circular (extracted above earlier in this judgment) stating that: (a) RR 2016 contain no provision for recruitment by absorption; (b) Rule 5 of RR 2016 stipulates that each CCA shall have its own separate cadre unless otherwise directed by the CBEC; (c) There is no provision which corresponds to Rule 4(ii) of RR 2002 in Rule 5 of RR 2016; (d) Any executive instructions contrary to RR 2016 would be void; (e) After the enforcement of RR 2016, there is no enablin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the OMs issued by DoPT will fill up the gaps in delegated legislation. Hence, in the absence of a specific rule to the contrary, the OMs issued by DoPT will govern the Central Government service unless specifically excluded by a regulatory provision. DoPT has a longstanding policy for posting of spouses at the same station. While Rule 4(ii) of RR 2002 contained a specific provision for ICTs, there is no corresponding provision in RR 2016. The absence of a specific provision will not alter the situation; (ii) ICTs were governed by OMs/circulars of the DoPT and Department of Revenue. While framing RR 2016, the Board sent the proposal to DoPT and DoPT approved the non-inclusion of Rule 4(ii) of RR 2002 on the basis that such a provision is generally not made in the recruitment rules. From this background, it becomes clear that the non-inclusion of Rule 4(ii) while framing RR 2016 was allowed on the premise that no prohibition for ICTs on compassionate and spousal grounds was required in the proposed rules. The circulars of the Board in 2004, 2009 and 2011 would clearly indicate that ICTs in relation to Group B,C and D employees have never been the subject matter of recruitment rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal, a provision for ICTs was issued but it was cancelled in the course of barely a week; and (iii) The non-inclusion of Rule 4(ii) while framing RR 2016 was on the ground that such a provision is generally not made in the recruitment rules. Hence, the non-inclusion of erstwhile Rule 4(ii) in RR 2016 would be of no practical significance. 18 Mr Narendra Hooda, learned senior counsel has urged that: (i) The circular dated 20 September 2018 ignores that the advice of DoPT- which led to the non-inclusion of Rule 4(ii) - was merely that such a stipulation was a surplusage in the recruitment rules; (ii) Under RR 2016, 90% of the cadre strength is for direct recruitment. Since an ICT is against the direct recruitment quota, no promotional avenues get affected; and (iii) Since 1958, ICTs have always been governed by executive instructions. 19 Mr Rana Mukherjee, learned senior counsel appearing on behalf of the intervenors submitted that in the alternative, if this Court upholds the decision of the High Court, it may at least protect persons whose transfers have already taken place albeit after RR 2016 were notified. 20 The arguments urged by Ms Makhija have been adopted by Mr Ris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he overarching needs of the administration. 26 Third, policies which stipulate that the posting of spouses should be preferably, and to the extent practicable, at the same station are subject to the requirement of the administration. In this context, Justice JS Verma (as the learned Chief Justice then was) speaking for a three-judge Bench of this Court in Bank of India v. Jagjit Singh Mehta (1992) 1 SCC 306 held : "5. There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employers be different. The desirability of such a course is obvious. However, this does not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the decision in accordance with the administrative needs. In the case of all-India services, the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other's posting. While choosing the career and a particular service, the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in: (i) A law enacted by the competent legislature; (ii) Rules made under the proviso to Article 309 of the Constitution; and (iii) Executive instructions issued under Article 73 of the Constitution, in the case of civil services under the Union and Article 162, in the case of civil services under the States. Fifth, where there is a conflict between executive instructions and rules framed under Article 309, the rules must prevail. In the event of a conflict between the rules framed under Article 309 and a law made by the appropriate legislature, the law prevails. Where the rules are skeletal or in a situation when there is a gap in the rules, executive instructions can supplement what is stated in the rules. Union of India and Others v. Somasundaram Viswanath and Others, (1989) 1 SCC 175, para 6 29 Sixth, a policy decision taken in terms of the power conferred under Article 73 of the Constitution on the Union and Article 162 on the States is subservient to the recruitment rules that have been framed under a legislative enactment or the rules under the proviso to Article 309 of the Constitution. State of Orissa and Others v. Prasana Kumar Sahoo (2007) 15 SCC 129, para 12 30 RR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e from time to time. 32 There is a fundamental fallacy in the submission which has been urged on behalf of the appellants. Administrative instructions, it is well-settled, can supplement rules which are framed under the proviso to Article 309 of the Constitution in a manner which does not lead to any inconsistencies. Executive instructions may fill up the gaps in the rules. But supplementing the exercise of the rule making power with the aid of administrative or executive instructions is distinct from taking the aid of administrative instructions contrary to the express provision or the necessary intendment of the rules which have been framed under Article 309. RR 2016 have been framed under the proviso to Article 309. Rule 5 of RR 2016 contains a specific prescription that each CCA shall have its own separate cadre. The absence of a provision for filling up a post in the Commissionerate by absorption of persons belonging to the cadre of another Commissionerate clearly indicates that the cadre is treated as a posting unit and there is no occasion to absorb a person from outside the cadre who holds a similar or comparable post. 33 In JS Yadav v. State of UP (2011) 6 SCC 570, a two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Union of India, cadres are constituted for each grade. At the cost of repetition, the Union of India submitted that there are 3800 cadres in 44 Ministries/Departments. Fundamental Rule 9(4) defines "cadre" to mean the strength of a service or part of a service sanctioned as a separate unit. It is the choice of a State to constitute cadres. The entire service cannot be considered to be a cadre for the purpose of promotion from one post to a higher post in a different grade. Promotion is made from one grade to the next higher grade, in relation to which cadres are constituted. This Court in Dr. Chakradhar Paswan (supra) has categorically stated that the post of Director and Deputy Director cannot form one cadre. A cadre is constituted by the Government by taking into account several factors within its sole discretion." (emphasis supplied) 34 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 othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without the previous concurrence of the Department of Personnel and Training. (3) The Ministry of Law shall be consulted on- (a) proposals for legislation; (b) the making of rules and orders of a general character in the exercise of a statutory power conferred on the Government; and (c) the preparation of important contracts to be entered into by the Government. (4) Unless the case is fully covered by a decision or advice previously given by the Department of Personnel and Training that Department shall be consulted on all matters involving- (a) the determination of the methods of recruitment and conditions of service of general application to Government servants in civil employment; and (b) the interpretation of the existing orders of general application relating to such recruitment or conditions of service. (5) Unless the case is fully covered by the instructions issued or advice given by that Ministry, the Ministry of External Affairs shall be consulted on all matters affecting India's external relations." In terms of Rule 4(4), the DoPT has to be consulted on the determination of the methods of recruitment and conditions of service of general application to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncluding F.Rs S.Rs and C.S.Rs (but excluding those relating to Pension and other retirement benefits) except- (i) proposals relating to revisions of pay structure of employees; (ii) proposals for revisions of pay scales of Central Government employees; (iii) appointment of Pay Commission, processing of the recommendations and implementation thereof; (iv) dearness allowance and other compensatory allowances and travelling allowances; (v) any new facility to Government employees by way of service conditions or fringe benefits which involve significant recurring financial implications; and (vi) matters relating to amendments to service rules having a predominantly financial character; […]" 38 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 inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... putation allowance has been suggested for deletion As such provision is generally not made in the RRs, we may agree. (v) The col. 7 related to added years of service It may be deleted. (vi) Col. 10 (renumbered 9) 2 years of DR and promotees (except those who are already holding posts in Group B), since probation is applicable if there is change of Group. (vii) Col. 11 (renumbered 10) …33 1/3 % by promotion Col. 11(renumbered 10) … 33 1/3 % by promotion through Departmental Qualifying Exam. Since, Departmental exam for promotion is either qualifying (not linked to vacancies) or competitive (linked to vacancies) Consequential changes in Col. 12 (renumbered 11) (emphasis supplied) 39 The above tabulation indicates that the proposal which was under consideration was the provision for Inter-Commissionerate deputation without deputation allowance. This was suggested for deletion. DoPT observed that such a provision is generally not made in the recruitment rules and thus, the proposal may be agreed to. But apart from this, the Department of Revenue did not deem it fit to adopt the specific provision which was contained in Rule 4(ii) of RR 2002 under which absorpt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ohibition on inter-zonal transfers, the Additional Solicitor General appearing on behalf of the Union of India relied on the instructions of the Board dated 24 August 2004 indicating that pending a decision on the demand for bifurcation of Group B, C cadres relating to Nagpur and Indore Collectorates, it had been decided that the cadre control of the two Collectorates would be distributed between the Collectors of Nagpur Zone and Indore Zone. The Collector of Central Excise of Nagpur Zone was made the CCA of Group B and C employees belonging to the Ministerial cadre while the Collector of Central Excise, Indore was made the CCA in respect of the Group B and C officers in the executive cadres. Since the post of Superintendent was a Group B post in the executive cadre and in respect of two Collectorates, the Collector of Central Excise Indore became the CCA of such employees in the Collectorates. It was in this backdrop, that this Court held that it was inclined to agree with the stand of the respondent that while transfer is an incident of service under the Central Service Rules, the petitioner had no cause to complain of his transfer from the Bhopal Zone to the Nagpur Zone as the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally stipulates that each CCA shall have its own separate cadre unless directed by the CBEC; (iv) Any ICT would violate the unique identity of each cadre envisaged in Rule 5; (v) Any ICT order would transgress a field which is occupied by the rules which have been framed in terms of the proviso to Article 309 of the Constitution; (vi) The circular dated 20 September 2018 makes it absolutely clear that RR 2016 do not have any provision for recruitment by absorption and no ICT application could be considered after the coming into force of RR 2016; (vii) Transfer is a condition of service and it is within the powers of the employer to take a policy decision either to grant or not to grant ICTs to employees; and (viii) The power of judicial review cannot be exercised to interfere with a policy decision of that nature. 43 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s quo. 58. Indirect discrimination is closely tied to the substantive conception of equality outlined above. The doctrine of substantive equality and anti-stereotyping has been a critical evolution of the Indian constitutional jurisprudence on Article 14 and 15(1). The spirit of these tenets have been endorsed in a consistent line of authority by this Court. To illustrate, in Anuj Garg v. Hotel Association of India [(2008) 3 SCC 1], this Court held that laws premised on sex-based stereotypes are constitutionally impermissible, in that they are outmoded in content and stifling in means. The Court further held that no law that ends up perpetuating the oppression of women could pass scrutiny. Barriers that prevent women from enjoying full and equal citizenship, it was held, must be dismantled, as opposed to being cited to validate an unjust status quo. In National Legal Services Authority v. Union of India [(2014) 5 SCC 438], this Court recognized how the patterns of discrimination and disadvantage faced by the transgender community and enumerated a series of remedial measures that can be taken for their empowerment. In Jeeja Ghosh v. Union of India [(2016) 7 SCC 761 and Vikash Kuma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... private choices, within an unjust structure. The OMs which have been issued by DoPT from time to time recognized that in providing equality and equal opportunity to women in the workplace of the State, it becomes necessary for the Government to adopt policies through which it produces substantive equality of opportunity as distinct from a formal equality for women in the workplace. Women are subject to a patriarchal mindset that regards them as primary caregivers and homemakers and thus, they are burdened with an unequal share of family responsibilities. Measures to ensure substantive equality for women factor in not only those disadvantages which operate to restrict access to the workplace but equally those which continue to operate once a woman has gained access to the workplace. The impact of gender in producing unequal outcomes continues to operate beyond the point of access. The true aim of achieving substantive equality must be fulfilled by the State in recognizing the persistent patterns of discrimination against women once they are in the work place. The DoPT OMs dated 3 April 1986, 23 August 2004, 8 July 2009 and 30 September 2009 recognised the impact of underlying socia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of disability. The expectations which every disabled person has are unique to the nature of the disability and the character of the impediments which are encountered as its consequence." The formulation of a policy therefore, must take into account the mandate which Parliament imposes as an intrinsic element of the right of the disabled to live with dignity. 50 The State's interference in the rights of privacy, dignity, and family life of persons must be proportional. This Court in Akshay N. Patel v. Reserve Bank of India 2021 SCC OnLine SC 1180, held that the framing of policy must meet an integrated proportionality analysis which answers whether the measure is: (i) in furtherance of a legitimate aim; (ii) suitable for achieving the aim; (iii) necessary for achieving the aim; and (iv) adequately balanced with the rights of the individual. 51 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 el ..... X X X X Extracts X X X X X X X X Extracts X X X X
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