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TMI Blog2023 (2) TMI 434X X X X Extracts X X X X X X X X Extracts X X X X ..... 09.2018 instructions in respect of the inter-commissionerate transfer, in light of the new Recruitment Rules, 2016 issued by the Ministry of Finance Department of Revenue have been considered by the Apex Court. It also clarified that the office order for inter-commissionerate transfer with the grade of inspector issued on or before 26.12.2016 will be non-est and any officer who has joined another zone in pursuance of such order shall be treated as a deemed case on loan basis w.e.f. 26.12.2016. The maximum tenure since is three years, which can be extended with the specific approval of the board for further two years depending on the requirement of the administration, with no exceptional circumstances having been defined and each case to be considered on the merit of its facts, on the basis of the guidelines dated 27.10.2011 shall require the issuance of three months of notice. The Tribunal having noticed the noncompliance of such, had expressed its expectation that the respondent would look into the incident of not following the DOP T dated 17.06.2010 before repatriating her. Being conscious of the fact that the letter dated 03.07.2020 specifies the terms of deputation, extension o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HARSHEEL D SHUKLA FOR THE RESPONDENT JUDGMENT PER : HONOURABLE MS. JUSTICE SONIA GOKANI 1. The present Special Civil Application is filed under Article 226 of the Constitution of India. The petitioner seeks issuance of writ of certiorari or any other appropriate writ for quashing the order dated 28.07.2022 passed by the Central Administrative Tribunal in Original Application No. 81 of 2022 dismissing the application and confirming the relieving order dated 15.11.2021, repatriating the petitioner to her parent department i.e. CGST, Audit, Durgapur, Kolkata without serving any notice during her maternity leave and also passing the consequent order dated 29.07.2022 relieving the petitioner with immediate effect. 2. The brief facts leading the present petition are as follows:- 2.1. The petitioner joined the services of Central Government as Inspector on 04.12.2018 and was posted in the Commissionerate, CGST, Audit, Durgapur, West Bengal. The respondent no.3 - the Directorate General of Vigilance, Ahmedabad Zonal Unit, Ahmedabad published a notification dated 18.12.2019 on the website of the Central Board of Indirect Taxes and Customs inviting applications from inspectors to fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... General of Vigilance, Indirect Taxes and Customs, New Delhi through her complaint letter dated 03.12.2021 agitating her voice, however, it has not paid any heed and no response was received. She made an application on 04.01.2022 under the Right to Information Act, 2005 seeking office note sheet copy of her relieving order, pursuant to which, office note sheet extracted from e-office was made available to her with letter dated 21.01.2022 showing the movement of file as per the hierarchy. However, the office note sheet copy was not provided which was hidden behind the link 'Note-Sheet.pdf'. 2.7. The most important aspect, according to the petitioner, has not been disclosed which was asked for through the RTI. The reply of RTI application is dated 21.01.2022 and duly signed on the same date, but, the same was dispatched to the petitioner on 04.02.2022 and the maximum time period has been allowed to the authority to send the reply to her under the RTI Act. This, according to her, is nothing but an attempt to harass a lady officer during her maternity leave. 2.8. When the petitioner realized that it was expedient for her to approach the judicial authority, it approached the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remaining lethargic in performing her duties, she could have been issued the memos. She has also given chronology of events to point out that respondent no.3 had already made up his mind to relieve and transfer her to the parent department just after she proceeded on maternity leave. In fact, the delay in process was with regard to only one file for which the petitioner had already submitted explanation that timely action could not be accomplished due to her health issues during the pregnancy and her husband also was suffering from chikungunya. The administrative warning also had been issued on 14.10.2021 to be more careful with the future repercussions if the lapse is repeated. However, the respondent, according to the petitioner, contradicted his warning and repatriated the petitioner for the same reason for which the warning has been issued and if she was not logged in for some days, the partial details could not have been submitted as the total tenure was of 427 days and the entire detail is not available. 2.12. The Tribunal after hearing both the sides had passed the order impugned. This confirmation of the order by the Tribunal has been challenged before this Court along wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmenced on 27.09.2021. Even she failed to inform the supervisory officer about this pending action and she proceeded on sanctioned maternity leave. When there was a staff exigency and looking to her oral performance and exigencies of service, she was repatriated to her parent department and the office of Principal Commissioner, CGST C Ex, Kotkatta Zone had passed the order directing her to join her duties at office instead of Durgapur Audit Commissionerate. 5.2. The details of as to how she had missed on the crucial files and her non-attendence of the files and lackadaisical approach is much emphasized upon. This, according to the respondent, is in contravention of the provisions of Rule 3(1) (2) - failure to maintain devotion to duty, 3(1)(6) - failure to maintain high ethical standard of honesty, 3(1)(21) - failure to perform and discharge his duties with highest degree of professionalism and dedication to the best of the abilities of the CCS (conduct) Rules, 1964 and were omitted from the charge memorandum issued to the office. 5.3. Later on, painstaking efforts were made to amend the charge memorandum by getting violation inserted in the charge memorandum. Therefore, this exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f non-availability of vacant post, the spouse with lesser service may apply to the appropriate cadre authority accordingly, and that authority will consider such requests for posting the said officer to the station or if there is no post in that station to the nearest station where the post exists." 7.4. It also refers to the complaints that if posts are available in the station of posting of the spouse, the administrative authorities do not accommodate the employees citing administrative reasons, it is directed that the cadre controlling authority should strive to post the employees as the station of the spouse and in case of inability to so do it, specific reasons may be communicated to the employee. 7.5. In the instant case, both of them are central government employees though not working in the same department. The posts since are available and the husband is posted in Ahmedabad, the guideline had been followed and on her request she has been brought here on deputation. The applicant who was on deputation as a Inspector in Directorate General of Vigilance, Ahmedabad Zonal Unit, by a reliving order, she has been repatriated to her parent Commissionerate CGST Audit, Durgapur on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory and not mandatory. 8.2. On the issue as to whether a show cause notice was necessary before repatriating the applicant, on harmonious reading of all the judgments referred to in this decision, it has been held that the deputationist has no vested right to continue on the deputation post. He can be prematurely repatriated at the instance of both the borrowing organization as well as lending organization. He does hold office during the pleasure of the borrowing organization and must go back to his parent cadre as soon as the parent cadre is withdrawn. It is his parent cadre that he holds lien on his substantive post, there is no mandatory requirement of issuing show cause notice before prematurely repatriating the deputationist. However, he has an indefeasible right to be treated fairly and equitably and his premature repatriation must be based on justifiable reasons. If it is on the ground of misconduct, then issue of show cause notice is also necessary to give opportunity to the deputationist to explain his position. 8.3. The reference is made of the decision of Smt. Rashmi Jain vs. Union of India [dated 23.05.2008] of the Co-ordinate Bench of the Tribunal decided on 23.05.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r held that no person can be discriminated nor is it open to the appointing authority to act arbitrarily or to pass any order in violation of Article 14 of the Constitution of India. A person who applies for appointment on deputation has an indefeasible right to be treated fairly and equally and once such person is selected and offered with a letter of appointment on deputation, except on the ground of non-suitability and unsatisfactory work, the same cannot be cancelled. 9. The decision of Delhi High Court in case of Shri Rajkumar vs. National Human Rights Commission [W.P. (C) 451/2021, decided on 12.03.2021] shall need to be considered where the appointment was on deputation on the post of presenting officer with National Human Right Commission (NHRC) where he was initially appointed for a period of one year and later given extension for one year. The petitioner was prematurely repatriated on the ground of incompetence in the absence of chairperson. The question raised was whether the respondent could have issued the order of repatriation of the petitioner before the date of expiry of his tenure. It was held that power of appointment includes the power to terminate. Repatriation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appointment to the post of Assistant Settlement Commissioner under Section 3, would also have the power to determine the appointment. The Central Government would also be entitled to terminate the appointment, since the post of Assistant Settlement Commissioner is a post under the Union of India and the person appointed to it would hold it during the pleasure of the President. There is no provision under which the Government of Punjab could have the power to determine the appointment as Assistant Settlement Commissioner made by the Central Government under Section 3. The Central Government alone could terminate the appointment, both as the appointing authority as also under Article 310(1) of the Constitution. The High Court was, therefore, right in taking the view that the order of the Punjab Government dated April 17, 1956 was ineffectual and invalid and the service of the first respondent as Assistant Settlement Commissioner was validly terminated only on February 10, 1959 when the Central Government, by its memorandum dated January 10, 1959, gave notice terminating the service of the first respondent. There was no dispute before us that if the service of the first respondent c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry to pursue the enquiry further. If the provision is couched in prohibitive or negative language, it can rarely be directory, the use of peremptory language in a negative form is per se indicative of the intent that the provision is to be mandatory (Crawford, the Construction of Statutes pp. 523-24). Here the language of sub-section (2) of s. 6 is emphatically prohibitive, it commands the Government in unambiguous negative terms that the period of the requisite notice must not be less than three months. 69. In fixing this period of notice in mandatory terms, the legislature had, it seems taken into consideration several factors. According to the scheme of the Bengal Act, the tax is quantified and assessed on the quarterly turnover. The period of not less than three months notice conforms to that scheme and is intended to ensure that imposition of a new burden or exemption from tax causes least dislocation and inconvenience to the dealer in collecting the tax for the Government, keeping accounts and filing a proper return, and to the Revenue in assessing and collecting the same. Another object of this provision is that the public at large and the purchasers on whom the incidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Institute of Vocational Education (PSSCIVE) where the respondent applied for the post after following the process. The selection was approved by the appointment committee of the cabinet. He was appointed on deputation as Joint Director in PSSCIVE for the period of five years with effect from the date of consumption of charge of the post or till the age of 62 years or until further orders whichever is earliest. 10.1. After the agreement with NCERT, he was relieved from NITTTR, Bhopal to join on the post of Joint Director. He took over the charge w.e.f. 23.03.2006 as notified by NCERT and as per order dated 13.02.2008, he was repatriated to the parent department without assigning any reason curtailing the period of deputation from five years. He filed an Original Application before the Central Administrative Tribunal, Jabalpur. 10.2. The Court on perusal of the record held that the order of repatriation passed by the Ministry of Human Resources is based on a letter and the action had not been taken to repatriate the respondent on the basis of a complaint. It discussed the advance intimation of the reasonable period to lending ministry and the said procedure had not been followe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt had taken into consideration all aspects to hold thus:- " 42 For the above reasons, we have arrived at the conclusion that the High Court was justified in coming to the conclusion that: (i) RR 2002 contained a specific provision for ICTs; (ii) There is an absence of a provision comparable to Rule 4(ii) of RR 2002 in RR 2016; (iii) On the contrary, Rule 5 of RR 2016 specifically 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld: "57. Recognizing that certain groups have been subjected to patterns of discrimination and marginalization, this conception provides that the attainment of factual equality is possible only if we account for these ground realities. This conception eschews the uncritical adoption of laws and practices that appear neutral but in fact help to validate and perpetuate an unjust status 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 opp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the way of a complainant seeking a remedy." It is this barrier that a robust conception of indirect discrimination can enable us to counteract." 48. This Court has spoken about the systemic discrimination on account of gender at the workplace which encapsulates the patriarchal construction that permeates all aspects of a woman's being from the outset, including reproduction, sexuality and 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 impa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wth and fulfilment of the disabled in every aspect of their existence - whether as students, members of the workplace, participants in governance or, on a personal plane, in realising the fulfilling privacies of family life. The accommodation which the law mandates is "reasonable" because it has to be tailored to the requirements of each condition 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 India35, 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. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitutional values which underlie Articles 14, 15 and 16 and Article 21 of the Constitution are duly protected. The appeals shall be disposed of in the above terms. 54 Pending application(s), if any, stand disposed of." 12. We have gathered from the office of the learned Assistant Government Pleader that whether the directions of the Apex Court issued in case of S.K.Nausad Rehman (supra) have been followed of revisiting the policy to accommodate the posting of spouses, the needs of the disabled and compassionate grounds. This exercise since was left within the domain of the executive, ensuring in the process that constitutional values which underlie Articles 14, 15, 16 and 21 of the Constitution are duly protected, the Court had expected that to be done at the level of Centre. However, no revisit is done so far as this aspect is concerned. 12.1. It is quite apparent that the Court has made it abundantly clear in its decision that the transfer in All India Service is an incident of service where the employee should be posted are the matters which are governed by the exigencies of service and employee does not enjoy the fundamental right or the vested right to claim the transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hs to the Ministry as well as to the employee concerned. It needs to be noted that relieving her during her maternity leave as rightly observed by the Tribunal, constitutes procedural irregularity in as much as there is no advance notice given to her. It is rightly observed that it was not a case of unauthorized absence and she was on approved maternity leave which she was entitled to. The manner in which the order has been passed while she was on maternity leave without issuance of notice, as stipulated under the DoP&T instructions dated 17.06.2010 by labeling it as an administrative exigency, it is quite obvious that this administrative exigency arise from the administrative warning dated 14.10.2021 which, without seeking any explanation, proceeded by a notice of repatriation and as per the instruction, she has been put to jeopardy of immediate transfer during her maternity leave when the baby was extremely young and no salary has been made available to her. 12.4. This incident of non-issuance of notice before repatriation will obviously warrant interference to the extent of fixing the responsibility on the officer who has failed to so do it. 12.5. This Court cannot be obliviou ..... 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