Sk Nausad Rahaman vs Union Of India on 10 March, 2022


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Supreme Court of India

Sk Nausad Rahaman vs Union Of India on 10 March, 2022

Author: Hon’Ble Dr. Chandrachud

Bench: Hon’Ble Dr. Chandrachud, Surya Kant, Vikram Nath

                                                                            Reportable


                               IN THE SUPREME COURT OF INDIA
                                CIVIL APPELLATE JURISDICTION

                                    Civil Appeal No. 1243 of 2022


          SK Nausad Rahaman & Ors.                                   .…Appellants


                                              Versus


          Union of India and Ors.                                    …Respondents




                                                With
                               Civil Appeal Nos. 1246-1248 of 2022


                                                With
                               Civil Appeal Nos. 1244-1245 of 2022


                                                With
                                    Civil Appeal No. 1249 of 2022


                                                With
                                    Civil Appeal No. 1250 of 2022


                                                With
                               Civil Appeal Nos. 1251-1265 of 2022
Signature Not Verified

Digitally signed by
Sanjay Kumar
Date: 2022.03.10
12:43:09 IST
Reason:




                                                  1
            With
Civil Appeal No. 1266 of 2022


         And With
Civil Appeal No. 1267 of 2022




              2
                                                 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

3
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 the orders of the Central

Administrative Tribunal on the issue of the withdrawal of Inter-Commissionerate

Transfers 1. The High Court has come to the conclusion that the Central Excise and

Customs Commissionerates Inspector (Central Excise, Preventive Officer and

Examiner) Group ‘B’ Posts Recruitment Rules 2016 2 do not contain any provision for

ICTs and, on the contrary, stipulate that each Cadre Controlling Authority 3 will have

its own separate cadre, unless otherwise directed by the Central Board of Excise

and Customs. The High Court held that ICTs would violate the unique identity of

each cadre envisaged under Rule 5 of RR 2016 and hence the circular withdrawing

ICTs is not invalid. The judgment of the High Court has given rise to the batch of civil

appeals.

2 The appellants are Inspectors of the Central Excise and Land Customs or, as

the case may be, Goods and Services Tax Administration, who were allocated to

different CCAs. Section 4 of the Customs Act 1962 provides that the Central Board

of Indirect Taxes and Customs 4 may appoint such persons as it thinks fit to be

officers of customs. A similar provision is contained in Section 4 of the Central

Goods and Services Tax Act 2017 5, which states that:

1
“ICT”
2
“Recruitment Rules 2016” or “RR 2016”
3
“CCA”
4
“CBIC”
5
“CGST Act”

4
PART A

“4. (1) The Board may, in addition to the officers as may be
notified by the Government under section 3, appoint such
persons as it may think fit to be the officers under this Act.

(2) Without prejudice to the provisions of sub-section (1), the
Board may, by order, authorise any officer referred to in
clauses (a) to (h) of section 3 to appoint officers of central tax
below the rank of Assistant Commissioner of central tax for
the administration of this Act.”

The expression ‘Board’ is defined in Section 2(16) of the CGST Act as the Central

Board of Excise and Customs 6 constituted under the Central Boards of Revenue Act

1963.

3 On 29 November 2002, the Central Excise and Land Customs Department

Inspector (Group C posts) Recruitment Rules 2002 7 were notified. RR 2002 trace

the source of power to the proviso to Article 309 of the Constitution. Rule 4 was in

the following terms:

“4. Special provision. – (i) Each Commissionerate 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 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.”

6
“CBEC”
7
“Recruitment Rules 2002” or “RR 2002”

Now referred to as Centra Board of Indirect Taxes and Customs (CBIC)

5
PART A

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” for the

expression “Commissionerate”. Significantly, Rule 4 (ii) of RR 2002 does not find

place in Rule 5 of RR 2016. Rule 4(ii) contained a non-obstante provision under

which a jurisdictional Chief Commissioner of Central Excise had enabling power to

allow the absorption of persons from another Commissionerate under the CBIC in

the public interest, and subject to conditions as would be determined. Rule 4(ii) of

RR 2002 which contains an express provision for ICTs was not incorporated in Rule

5 when RR 2016 were notified.

6 On 20 September 2018, the CBIC issued a circular 8 stating that since RR

2016 do not contain any provision for recruitment by absorption, no application for

ICTs could be considered after the enforcement of those rules. The circular forms

the genesis of the dispute in the present case and is hence extracted below:

8

F. No. A-22015/117/2016-Ad.IIIA dated 20 September 2018

6
PART A

“CIRCULAR

Subject: Instructions in respect of Inter Commissionerate
Transfer (ICT) in the light of new Recruitment Rules,
2016- regarding.

These instructions are being issued in terms of “Central
Excise and Customs Commissionerate Inspector (Central
Excise, Preventive Officer and Examiner) Group B Posts
Recruitment Rules, 2016”

2. Any executive instruction in contravention of the
Recruitment Rules will be void in accordance with the ratio of
the judgment of the Hon’ble Supreme Court of India in the
case of UOI & others Vs. Somasundran1 Viswanath & Ors.
dated 22.09.1988 (1990 SC 166 (10) which held as follows: –

(1) “It is well settled that the norms regarding recruitment
and promotion of officers belonging to the Civil Services can
be laid down either by a law made by appropriate Legislature
or by rules made under the proviso to Article 309 of the
Constitution of India or by means of executive instructions
issued under article 73 of the Constitution of India in the case
of Civil Services under the Union of India and under Article
162
of the constitution of India in the case of Civil Services
under the State Governments. If there is a conflict between
the executive instructions and the rules made under the
proviso to Article 309 of the Constitution of India, the rules
made under proviso to Article 309 of the Constitution of India
prevail.” Thus, the Recruitment Rules formulated under Article
309 will prevail over any executive instruction that may 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

7
PART A

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 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 of
Directorate under the Central Board of Excise and Customs.
However, under Recruitment Rules, 2016 the corresponding
provision containing the special provision under Rule 5
provides that “Each Cadre Controlling Authority (CCA) shall
have its own separate cadre unless otherwise directed by the
Central Board of Excise and Customs.”

5. From the above, it is clear that Recruitment Rules,
2016 do not have any provision for recruitment by absorption
and accordingly, no ICT application can be considered after
coming into force of the Recruitment Rules, 2016.

6. In exceptional circumstances depending upon the
merit of each case such as extreme compassionate grounds,
such transfers may be allowed on case to case on loan basis
alone keeping in view the administrative requirements of
transferee and transferred Cadre Controlling Authority.
However, maximum tenure of such transfer will be three
years and can be extended with the specific approval of the
Board for a further period of two years depending upon the
administrative requirement. It is further reiterated that the
officials transferred on the loan basis shall not be considered
for promotion unless they re-join their parent cadre.

7. Now, therefore, it is hereby clarified that an office
order for Inter Commissionerate Transfer in the Grade of
Inspectors issued on or after 26.12.2016 (i.e. from the date of
enactment of RR, 2016) will be non-est and accordingly 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. These officers shall be on deemed loan till

8
PART A

31.03.2019, on which date the officers shall stand relieved
and be reverted to their parent Zones. […]”

7 While clarifying that under RR 2016, there is no specific provision allowing for

ICTs, the circular notes that Rule 5 stipulates that each CCA will have its own

separate cadre, unless otherwise directed by the Board. Rule 5 has been construed

to mean that given that each CCA is to have its own cadre, ICTs, which involve a

transfer from one Commissionerate to another would no longer 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.




                                             9
                                                                                   PART B

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 9 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 Department of Personnel and Training 10 and

(ii) the second set concerns executive instructions which were issued by the

Department of Revenue.

B.1     Executive Instructions issued by DoPT

10      The following executive instructions have been issued by the DoPT regarding

ICTs:


(i)     On 3 April 1986, an OM11 was issued by DoPT. The subject of the OM was:

“Posting of husband and wife at the same station”. The OM dealt with the

posting of employees of the Central Government and underscored that within

administrative constraints, it was the policy of the Government that spouses

should be posted at the same station as far as possible. Paragraph 2 of the

circular indicated its rationale in the following terms.

“2. The Govt. of India have given the utmost importance to
the enhancement of women’s status in all sectors and all
walks of life. Strategies and policies are being formulated and
implemented by different Ministries of the Central Govt. to
achieve this end. It is also considered necessary to have a
policy which can enable women employed under the Govt
and the public sector and undertaking to discharge their
responsibilities as wife/mother on the one hand and
productions workers on the other, more-effectively. It is the
policy of the Govt. that as far as possible and within the

9
“OM”
10
“DoPT”
11
No. 28036/7/86-Estt(A)

10
PART B

constraints of administrative feasibility, the husband and wife
should be posted at the same station to enable them to lead a
normal family life and to ensure the education and welfare of
their children.”

Paragraph 4 of the circular envisaged various situations, depending upon the

service to which spouses may belong and illustrated the following

eventualities:

“4. The classes of cases that may arise, and the guidelines
for dealing with each class of case, are given below: –

(i) Where the spouse belong to the same All India
Service or two of the All India Service namely IAS, IPSA and
Indian Forest Services (Group-A).

(ii) Where one spouse belongs to one of the All India
Service and the other spouse belongs to one of the Central
Services: –

The cadre controlling authority of the Central Service may
post the officer to the station or if there is no post in that
station to the State where the other spouse belonging to the
All India Service is posted.

(iii) Where the spouse belong to the same central service:
The cadre controlling authority may post the spouses 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 services 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 spouse employed under
PSU is posted.

11

PART B

(vii) Where one spouse is employed under the Central
Govt. and the other spouse is employed under the State
Govt.:

The spouse employed under the central Govt. may apply to
the competent 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 posted.”

While recognising that the above illustrations would not cover every case, the

OM envisaged that each case not covered by the guidelines would be

considered bearing in mind the underlying object of ensuring that spouses

are, as far as possible and within the constraints of administrative

convenience, posted at the same station.

(ii) An OM 12 dated 29 May 1986 was issued by the DoPT which dealt with the

seniority of the persons absorbed after being on deputation;

(iii) An OM 13 was issued on 12 June 1997 which dealt with the “posting of

husband and wife at the same station” after the report of the Fifth Central Pay

Commission. The OM reiterated the guidelines contained in the earlier OM

dated 3 April 1986 for deciding requests for posting of spouses at the same

station and envisaged that it should be ensured that such posting is invariably

done until the children attain the age of 10 years if a vacancy exists in the

organization at the same station and no administrative problem arises as a

consequence;

(iv) By an OM 14 dated 23 August 2004, it was noted that the instructions

contained in the OMs dated 3 April 1986 and 12 June 1997 were not being

12
No. 20020/7/80-Estt.D
13
No. 28034/2/97-Estt.(A) New Delhi
14
No.28034/23/2004-Estt.(A)

12
PART B

followed in letter and spirit by the Ministries and Departments even in the

absence of administrative constraints. Accordingly, the OM sought to impress

upon all Ministries/Departments “that the guidelines laid down in the aforesaid

office memorandum are strictly followed while deciding the request for posting

of husband and wife at the same station”. The OM further stated that “the

policy of the Government has been to give utmost importance to the

enhancement of women’s status in all sectors and all walks of life”;

(v) On 8 July 2009, an OM15 was issued indicating that the 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.”

15
No.13018/4/2009-Estt.(L)

13
PART B

(vi) By an OM 16 dated 30 September 2009, the earlier guidelines were

consolidated and it was stipulated that when both spouses are in the Central

Government or work in the same Department and if posts are available, they

must invariably be posted together. Paragraph 5 of the OM stated that:

“5. Complaints are sometimes received that even if posts
are available in the station of posting of the spouse, the
administrative authorities do not accommodate the
employees citing administrative reasons. In all such cases,
the cadre controlling authority should strive to post the
employee at the station of the spouse and in case of inability
to do so, specific reasons, therefor, may be communicated to
the employee.”

(vii) By an OM 17 dated 31 December 2010, the guidelines were notified for

amendments in or for relaxation of the recruitment rules.

B.2 Circulars issued by Department of Revenue, Ministry of Finance

11 The following circulars have been issued by the Department of Revenue

regarding ICTs:

(i) On 13 May 1998, a circular 18 was issued by the Ministry of Revenue to all the

Chief Commissioners of Customs and Central Excise on the subject of Inter-

Commissionerate Transfers. The circular stipulated that:

“The issue of Inter Commissionerate Transfer has been
considered by Board and it has been decided that for the
present only 75% portion out of the total DP quota vacancies
should be filled up by Inter Commission transfer by CCE,
Delhi.

2. It has also been decided that a committee may be formed
which may decide on inter Commissionerate transfer after
considering the matter in totally but generally on first come
first salary basis. The committee can also consider the
hardship cases, like couple cases, “Medical Emergency

16
No.F.No.28034/9/2009-Estt.(A)
17
No. AB.14017/48/2010-Estt..(RR)
18
No.F.No.22015/11/98 Ad. IIIA

14
PART B

Cases” and other cases like “Only s[o]n separate from
parents” on merits.”

(ii) On 16 January 2003, a circular19 was issued by the Department of Revenue

to the:

           (a)       Chief Commissioners of Central Excise;

           (b)       Chief Commissioners of Customs; and

           (c)       Commissioners of Central Excise/Customs.

The circular notified that the Board had decided that all the powers which

were being exercised by the respective Commissioners as CCAs would

henceforth be exercised by the respective Chief Commissioners. However, it

was stipulated that there would be no merger or bifurcation of the existing

cadres and the functions of the 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 20 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:

19
No. F.No.A-11013/04/2002-Ad.IV
20
F. No.A.22015/3/2004-ad.IIIA

15
PART B

“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 approval of the transferor and transferee
cadre controlling authorities. Further extension of deputation
period can be made up to one year by the Commissioner and
for a further period of one year by Chief Commissioners
concerned on mutually agree[d] basis. Such transfers shall be
with the specific condition that no deputation allowance shall
be admissible for deputation period including extended
period, if any. Wherever required, necessary amendments in
Recruitment Rules are under approval and shall be issued
subsequently.”

(iv) A circular 21 was issued on 27 March 2009 by the CBEC by which the earlier

ban on ICTs was partially relaxed in order to facilitate the posting of spouses

at the same station “in line with the instructions of the DoPT”. The circular

specifically referred to the DoPT OMs dated 3 April 1986, 12 June 1997 and

23 August 2004. The circular, insofar as is material, is extracted below:

“I am directed to refer to the Board’s Circular
F.No.22015/3/2014-Ad.IIIA dated 19.02.2004, as modified
vide letter dated 09.03.2004, vide which the inter-
Commissionerate Transfers of Groups-B,C and D officers
were banned. Although the term used was ‘Inter-
Commissionerate Transfers’, the ban was actually confined to
transfers from one Cadre Controlling Authority to another.
There was no ban on transfers amongst the
Commissionerates having common cadre, where no loss of
seniority was involved, as was clarified vide letter dated
09.03.2004 referred to above.

2. However, it has been pointed out that the instructions
of the DoPT (contained in their OM No.28034/7/86-Estt(A)
dated 03.04.1986 as amended by OM dated 12.06.1997 and
23.08.2004), provide that “a husband and wife are, as far as
possible, and within the constraints of administrative
convenience, posted at the same station”.

3. The Board deliberated upon the issue in its meeting
held on 04.03.2009 and have decided to partially relax the

21
F.No.A.22015/19/2006-Ad.IIIA

16
PART B

earlier instructions of the Board as referred to above, in order
to facilitate posting of husband and wife at the same station in
line with the instructions of the DoPT. Accordingly, it has now
been decided to permit inter-Commissionerate transfers of
Group B, C and D Officers beyond the Commissionerates
having common cadres, i.e. from one Cadre Controlling
Authority to another, without any loss of seniority, subject to
the following conditions: –

(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 22 was issued by the CBEC noting that the ban

on ICTs which was imposed by the earlier communication dated 19 February

2004 for Group B, C and D employees, was subsequently relaxed in phases

to cover cases involving spouses, compassionate appointments and

physically handicapped employees by circulars dated 27 March 2009, 29 July

2009 and 9 February 2011. It recorded that such relaxation was allowed

without loss of seniority and subject to specific conditions. By the

communication, CBEC notified that it had lifted the ban on ICTs with

immediate effect. Para 2 of the circular stipulated as follows:

“2. On consideration of all aspects in the matter of ICT, it has
been decided by the Board now to lift the ban on ICT with

22
F.No.A.22015/23/2011-Ad.IIIA

17
PART B

immediate effect. Accordingly, any willing Group ‘B’‘C’
employee and the erstwhile Group ‘D’ employee may apply
for transfer from the jurisdiction of one Cadre Controlling
Authority (CCA) to another. CCA subject to availability of
vacancy and on the following terms & conditions:
i. The concerned two Cadre Controlling Authorities
should agree to the transfer,
ii. The transferee will be placed below all officers
appointed regularly to that pots/grade on the date of his/her
appointment on transfer basis in terms of Para 3.5 of
DOP&T’s G.M. dated 03.07.1986. In other words, such a
transferee will be junior to those regularly appointed officers
prior to his/her transfer. However, such transferred officer will
retain his/her eligibility of the parent Commissionerate for
his/her promotion to the next higher grade, etc.
iii. On transfer he/she will not be considered for
promotion in the old Commissionerate.

iv. He/she will not be entitled to any joining time and
transfer travelling allowance;

v. Under no circumstances, request for ICT should be
entertained till the officer appointed in a particular
Commissionerate/post completes the prescribed probation
period.

vi. The seniority of the officers who were allowed ICT
earlier by the various Cadre Controlling Authorities on the
basis of Board’s letters F.No.A.22015/19/2006-Ad.III.A dated
27.03.2009, F.No. A.22015/11/2008-Ad.III.A dated
29.07.2009 and F.No. A.22015/15/2010-Ad.IIIA dated
09.02.2011 shall be fixed as per the present instructions.
vii. Officers who are presently working on deputation
basis from their parent Commissionerate to any other
Commissionerate/ Directorate and are willing to avail of the
ICT in future will have to revert back to their parent
Commissionerate first and apply afresh for ICT. The officers
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.”

18
PART C

(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 enabling provision for the

grant of ICTs;

(f) In exceptional circumstances employees could be transferred on a loan

basis for a maximum period of three years extendable by a further

period of two years; and

(g) All ICTs in the grade of Inspectors issued on or after 26 December

2016 would be withdrawn and those employees would be deemed to

be on a loan basis.

C      Submissions

12     We have heard Mr Maninder Singh, Ms Vibha Datta Makhija, Mr PN

Ravindran, Mr Narender Hooda and Mr Rana Mukherjee, senior counsel in support

of the appeals and intervention applications and Mr Rishi Kapoor and Mr Umakant

19
PART C

Misra, learned counsel who have adopted their submissions. Mr KM Nataraj,

Additional Solicitor General 23 has appeared on behalf of the respondents.

13 Mr Maninder Singh, learned senior counsel has urged the following

submissions:

(i) The Division Bench of the High Court of Kerala has held that with the non-

inclusion of the provisions of Rule 4(ii) of the RR 2002 in RR 2016, ICTs are

not permissible. However, Rule 5 of RR 2016 which stipulates that each CCA

will have a separate cadre, contemplates that the CBEC can provide

otherwise;

(ii) CBEC’s instructions of 27 October 2011 lifted the ban on ICTs which was

imposed on 19 February 2004;

(iii) The decision by CBEC to lift the ban on ICTs must be treated as a decision

which relaxes the norm that each CCA will have a separate cadre; and

(iv) The basic premise of the circular dated 20 September 2018 is that there is no

provision for recruitment by absorption in RR 2016. This premise is fallacious

because even after the non-inclusion of Rule 4(ii) of RR 2002 in Rule 5 of RR

2016, the Board has retained its power to issue directions ‘otherwise’ and a

circular which had been issued by the Board must be treated as being an

exercise of such a power.

23
“ASG”

20
PART C

14 Ms Vibha Datta Makhija, learned senior counsel has addressed the court on

two broad issues:

(i) Whether RR 2016 place a blanket prohibition on ICTs; and

(ii) Whether the circular dated 20 September 2018 which imposes a blanket

prohibition on ICTs is violative of the fundamental rights conferred by Articles

14 and 21 of the Constitution.

15 Ms Makhija has assailed the blanket prohibition on ICTs insofar as it relates to

applications made on “spousal grounds”. In this backdrop, learned senior counsel

urged:

(i) In the absence of a specific provision in RR 2016 for ICTs, 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

21
PART C

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 and have fallen in the domain of administrative

instructions. Once the ICTs were governed by executive instructions, the High

Court has erred in coming to the conclusion that the absence of a provision

corresponding to Rule 4(ii) of RR 2002 in RR 2016 would bar ICTs. Since RR

2016 are silent with respect to ICTs, such transfers remain within the domain

of administrative instructions;

(iii) DoPT has issued its circulars in furtherance of the constitutional object of

maintaining equality and women’s empowerment as embodied in Article 15(3)

of the Constitution;

(iv) In terms of the provisions contained under The Government of India

(Transaction of Business Rules) 1961, any conflict between the policy of the

DoPT and Department of Revenue would have to be resolved by giving

primacy to the former on matters of recruitment, service conditions and cadre

management of the central services;

(v) The circular dated 20 September 2018 was brought into force without the

approval of DoPT and is hence contrary to The Government of India

(Transaction of Business Rules) 1961;

22
PART C

(vi) The circular dated 20 September 2018 banning ICTs violates the provisions of

Articles 14 and 16(1) of the Constitution by bringing about discrimination at

two levels:

(a) It discriminates between Group ‘A’ and Group ‘B’/’C’ employees;

(b) It discriminates vis-à-vis other services under the Central Government

to which the DoPT circulars apply;

(vii) The impugned circular results in indirect discrimination and denies equality of

opportunity to women guaranteed under Articles 15(1) and 16(1) of the

Constitution; and

(viii) The circular banning ICTs does not satisfy an integrated proportionality

analysis.

16 Mr Vikas Singh, learned senior counsel urged that the consequence of the

non-inclusion of a provision corresponding to Rule 4(ii) of RR 2002, while framing

RR 2016 is that the power to effect ICTs which was given to the Commissionerate

has now been entrusted to the Board. Though the power had been taken away from

the Commissionerate level, it continues to vest with the Board.

17 Mr PN Ravindran, learned senior counsel submitted that:

(i) The circular dated 20 September 2018 proceeds on the sole basis that there

is no provision in RR 2016 for ICTs whereas ICTs have always been

governed by executive instructions;

23
PART C

(ii) Following the decision of the Kerala Central Administrative Tribunal, 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 Rishi Kapoor

while Mr Umakant Misra has adopted the arguments of Mr Maninder Singh.

24
PART C

21 On behalf of the respondents, Mr KM Nataraj, learned ASG has urged the

following submissions:

(i) No employee can assert a fundamental right or a vested right to transfer.

Transfer as condition of service is always a matter which is governed by the

applicable rules;

(ii) Rule 4 of RR 2002 while stipulating that each Commissionerate would have a

separate cadre contained a specific provision in Rule 4(ii), allowing for

absorption from the cadre of one Commissionerate to another

Commissionerate;

(iii) Rule 5 of RR 2016 contains a specific stipulation that there will be a separate

cadre for each CCA;

(iv) A cadre means a definite sanctioned strength which is stated in the separate

unit;

(v) In the absence of a specific provision in Rule 5 of RR 2016 to bring a person

from one cadre to another cadre by absorption, there is no legal power to

absorb a person from outside the cadre;

(vi) The non-inclusion of Rule 4(ii) when RR 2016 were framed, was designed to

curb a specific mischief. The provision for ICTs was being abused by

employees as, for instance, for the purpose of seeking a promotion and

reverting to the original cadre;

25
PART D

(vii) The entire concept of a cadre and cadre strength would be negated if ICTs

are permitted in the absence of an enabling provision such as Rule 4(ii) of the

erstwhile RR 2002;

(viii) DoPT circulars cannot override statutory rules which have been framed under

Article 309 of the Constitution; and

(ix) Providing any kind of transfer including ICTs is a matter of policy and cannot

be claimed as a matter of right.

22 The rival submissions would now fall for analysis.

D        Analysis

23       While analyzing the rival submissions, certain basic precepts of service

jurisprudence must be borne in mind.


24       First and foremost, transfer in an All India Service is an incident of service.

Whether, and if so where, an employee should be posted are matters which are

governed by the exigencies of service. An employee has no fundamental right or, for

that matter, a vested right to claim a transfer or posting of their choice.

25 Second, executive instructions and administrative directions concerning

transfers and postings do not confer an indefeasible right to claim a transfer or

posting. Individual convenience of persons who are employed in the service is

subject to the 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

26
PART D

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 24 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 couple have to bear in mind this factor and be prepared to
face such a hardship if the administrative needs and transfer
policy do not permit the posting of both at one place without
sacrifice of the requirements of the administration and needs
of other employees. In such a case the couple have to make
their choice at the threshold between career prospects and
family life. After giving preference to the career prospects by
accepting such a promotion or any appointment in an all-India
service with the incident of transfer to any place in India,
subordinating the need of the couple living together at one
station, they cannot as of right claim to be relieved of the
ordinary incidents of all-India service and avoid transfer to a
different place on the ground that the spouses thereby would
be posted at different places. […] No doubt the guidelines
require the two spouses to be posted at one place as far as
practicable, but that does not enable any spouse to claim
such a posting as of right if the departmental authorities do
not consider it feasible. The only thing required is that the
departmental authorities should consider this aspect along
with the exigencies of administration and enable the two
spouses to live together at one station if it is possible without
any detriment to the administrative needs and the claim of
other employees.”

24
(1992) 1 SCC 306

27
PART D

27 The above principle was cited with approval in Union of India v. SL Abbas 25

where the Court held that transfer is an incident of service:

“7. Who should be transferred where, is a matter for the
appropriate authority to decide. Unless the order of transfer is
vitiated by mala fides or is made in violation of any statutory
provisions, the court cannot interfere with it. While ordering
the transfer, there is no doubt, the authority must keep in
mind the guidelines issued by the Government on the subject.

Similarly if a person makes any representation with respect to
his transfer, the appropriate authority must consider the same
having regard to the exigencies of administration. The
guidelines say that as far as possible, husband and wife must
be posted at the same place. The said guideline however
does not confer upon the Government employee a legally
enforceable right.”

28 Fourth, norms applicable to the recruitment and conditions of service of

officers belonging to the civil services can be stipulated 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

25
(1993) 4 SCC 357

28
PART D

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. 26

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. 27

30 RR 2002 contained in Rule 4 a “Special Provision”. Rule 4(i) envisaged that

each Commissionerate shall have its own separate cadre unless otherwise directed

by the CBEC. Rule 4(ii) commenced with a non-obstante provision in terms of which,

the jurisdictional Chief Commissionerate of Central Excise was empowered to order

that any post in the Commissionerate may be filled up by absorption of persons

holding the same or comparable post belonging to the cadre of another

Commissionerate under the CBEC. The non-obstante provision was necessary

because Rule 4(i) contained a mandate for each Commissionerate to have its own

separate cadre unless the CBEC directed otherwise. The plain consequence of each

Commissionerate having its own cadre was to preclude the appointment of a person

belonging to the cadre of another Commissionerate by way of absorption. The bar

on the absorption of persons from outside the cadre was lifted as a consequence of

Rule 4(ii), which by embodying a non-obstante provision allowed the jurisdictional

Chief Commissionerate to allow a post in the Commissionerate to be filled by

26
Union of India and Others v. Somasundaram Viswanath and Others, (1989) 1 SCC 175, para 6
27
State of Orissa and Others v. Prasana Kumar Sahoo (2007) 15 SCC 129, para 12

29
PART D

persons holding the same or comparable post but belonging to the cadre of another

Commissionerate.

31 In RR 2016 as notified, Rule 5 states that each CCA shall have its own

separate cadre, unless otherwise directed by the CBEC. The ‘Commissionerate’ in

the erstwhile Rule 4(ii) was substituted by the expression “Cadre Controlling

Authority” in Rule 5 of RR 2016. The clear intent of Rule 5 is that there would be a

separate cadre for each CCA and only CBEC is entrusted with the authority to direct

otherwise. Hence only CBEC could direct the constitution of a joint cadre for more

than one Commissionerate. The enabling power which was conferred on

jurisdictional Chief Commissionerate in Rule 4(ii) of RR 2002 is conspicuously

absent in Rule 5 of RR 2016. The central submission which has been urged on

behalf of the appellant is that since in RR 2016 there is no provision corresponding

to Rule 4(ii) of RR 2002, there is a silence on the subject of the absorption of

persons belonging to the cadre of another Commissionerate and this silence or gap

can be supplemented by executive instructions. The executive instructions, it was

submitted, would be those which are embodied in the OMs which have been issued

by DoPT or the instructions which have been issued by the Department of Revenue

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

30
PART D

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 28, a two judge bench of this Court observed that

the expression ‘cadre’ generally “denotes a strength of a service or a part of service

sanctioned as a separate unit. It also includes sanctioned strength with reference to

grades in a particular service. Cadre may also include temporary, supernumerary

and shadow posts created in different grades”. Recently, a three-judge Bench of this

Court in Jarnail Singh v. Lacchmi Narain Gupta 29, while dealing with the scope of

the expression ‘cadre’ referred to various judicial pronouncements. The Bench

noted:

“24. […] The dispute that arose for consideration of this Court
in Dr. Chakradhar Paswan v. State of Bihar [(1988) 2 SCC
214] relates to the posts of Director and three Deputy
Directors in the Directorate of Indigenous Medicines,
Department of Health, State of Bihar being grouped together

28
(2011) 6 SCC 570
29
2022 SCC OnLine SC 96

31
PART D

for the purpose of implementing the policy of reservation
under Article 16(4) of the Constitution of India. […] It was held
that the term “cadre” has a definite legal connotation in
service jurisprudence. This Court referred to Fundamental
Rule 9(4) which defines the word “cadre” to mean the
strength of a service or part of a service sanctioned as a
separate unit. […]

25. […] The meaning of “cadre” fell for consideration of this
Court again in Union of India v. Pushpa Rani [(2008) 9 SCC
242]. “Cadre” in the 1985 edition of the Railway
Establishment Code is defined as the strength of a service or
a part of a service sanctioned as a separate unit. This Court
held that the posts sanctioned in different grades would
constitute independent cadres, even for the purpose of
implementing the roster. The reason for giving an enlarged
meaning to the term “cadre” was that the posts in the railway
establishment are sanctioned with reference to grades. Even
temporary, work-charged, supernumerary and shadow posts
created in different grades can constitute part of the cadre.

[…]

28. It is clear from the above statutory regime and the law laid
down by this Court that civil posts under the Government are
organised into different services. A service constitutes
‘classes’/‘groups’ of posts. A ‘class’/‘group’ is further
bifurcated into grades. Though the nomenclature might be
different, the structure of services under the Union and the
States is similar. According to the instructions issued by the
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)

32
PART D

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 otherwise militate against bringing in those outside the

cadre. That is the reason why Rule 4(ii) of the erstwhile RR 2002 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.

35 Another submission which has been urged on behalf of the appellants is

based on The Government of India (Transaction of Business) Rules 1961, which

have been framed pursuant to Article 77(3) of the Constitution. Rule 4(4) provides

for consultation with the DoPT on specified matters and reads as follows:

“4. Inter-Departmental Consultations.-
(1) When the subject of a case concerns more than one
department, no decision be taken or order issued until all
such departments have concurred, or, failing such
concurrence, a decision thereon has been taken by or under
the authority of the Cabinet.

Explanation- Every case in which a decision, if taken in one
Department, is likely to affect the transaction of business
allotted to another department, shall be deemed to be a case
the subject of which concerns more than one department.

(2) Unless the case is fully covered by powers to sanction
expenditure or to appropriate or re-appropriate funds,
conferred by any general or special orders made by the
Ministry of Finance, no department shall, without the previous

33
PART D

concurrence of the Ministry of Finance, issue any orders
which may-

(a) involve any abandonment of revenue or involve any
expenditure for which no provision has been made in the
appropriation act;

(b) involve any grant of land or assignment of revenue or
concession, grant, lease or licence of mineral or forest rights
or a right to water power or any easement or privilege in
respect of such concession;

(c) relate to the number or grade of posts, or to the strength of
a service, or to the pay or allowances of Government
servants or to any other conditions of their service having
financial implications; or

(d) otherwise have a financial bearing whether involving
expenditure or not;

Provided that no orders of the nature specified in clause (c)
shall be issued in respect of the Ministry of Finance 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.”

34
PART D

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

government servants and on the interpretation of existing orders of general

application relating to recruitment or the conditions of service.

36 The Government of India (Allocation of Business) Rules 1961 have also been

framed under Article 77(3) of the Constitution. Rule 2 envisages that the business of

the Government of India shall be transacted in the Ministries, Departments,

Secretariats and Offices specified in the First Schedule. Under Rule 3, the

distribution of subjects is specified in the Second Schedule. The distribution of

subjects to the Department of Revenue includes:

“C. DEPARTMENT OF REVENUE

(RAJASWA VIBHAG)

1. All matters relating to-

             (a)     Central Board of Excise and Customs;
             (b)     Central Board of Direct Taxes”


37    In other words, all matters which relate to CBEC and CBDT were assigned to

the Department of Revenue. Matters which are assigned to DoPT under the Ministry

of Personnel, Public Grievances and Pension include:

“A. DEPARTMENT OF PERSONNEL AND TRAINING

(KARMIK AUR PRASHIKSHAN VIBHAG)

I. RECRUITMENT, PROMOTION, AND MORALE OF
SERVICES

[…]

35
PART D

2. General questions relating to recruitment, promotion
and seniority pertaining to Central Services except Railways
Services and services under the control of Department of
Atomic Energy, the erstwhile Department of Electronics, the
Department of Space and the Scientific and Technical
Services under the Department of Defence Research and
Development.

[…]

18. Advising Ministries on proper management of various
cadres under their control.

[…]

IV. SERVICE CONDITIONS

21. General questions (other than those which have a
financial bearing including Conduct Rules relating to All India
and Union Public Services except in regard to services under
the control of the Department of Railways, the Department of
Atomic Energy, the erstwhile Department of Electronics and
the Department of Space.)

22. Conditions of service of Central Government employees
(excluding those under the control of the Department of
Railways, the Department of Atomic Energy, the erstwhile
Department of Electronics and the Department of Space and
the Scientific and Technical personnel under the Department
of Defence Research and Development, other than those
having a financial bearing and in so far as they raise points of
general service interests).

23. (a) The administration of all service rules including 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

36
PART D

(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 interpretation of existing orders relating to recruitment and conditions of

service. The executive instructions which have been issued by the DoPT cannot

however prevail over the specific provisions which are contained in the rules which

have been framed under the proviso to Article 309 of the Constitution. Faced with

this difficulty, 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 on the disclosure made by the Department of Revenue under the Right to

Information Act 2005 on 3 July 2018. The attachment with the RTI disclosure

contains the following tabulation:

“4. D/o Revenue has further suggested for following changes
in the draft RRs approved by the Department for which
DoPT’s observations has been mentioned against them:-

SI.    Proposal                           DoPT’s observations
No.
(i)    Col. 12    Addition of   Asstt.    The reasons available in the file for addition of
       Programmer (DEO Grade D) (PB-2     Asstt. Programmer (only 5 in No.) is to provide the



                                             37
                                                                                            PART D

        GP Rs. 4200) and Steno Gr. I (PB-      promotion avenue in Ministerial/executive side
        2 GP Rs. 4200) as feeder grade for     instead of technical side (p.11/c). No reason has
        Insp (C&E); Insp. (PO) and Insp        been given for addition of Steno Gr.I. As the
        (Exam)                                 justification is not adequate or not given, we may
                                               not agree for the addition of both posts in the
                                               feeder grade.
(ii)    Col. 12 The requirement for age        This was suggested by this Department earlier, But
        limit  for   appearing  in   the       due to justification given, DoPT agreed while
        departmental exam has been done        approving the proposal for keeping the age limit for
        away with                              promotion (p.76-83/N of L/F). Now in view of a
                                               Court decision, D/o Revenue has suggested the
                                               proposal. We may agree for the same.
(iii)   Note 2 in Col. 12 The requisite        It may be mentioned that D/o Revenue has insisted
        height is being dispensed with for     for keeping the provision for physical tests and
        those who have been recruited          physical standards for considering promotion due to
        without such criteria                  the job of Inspector being arduous in nature. As the
                                               circumstances remain same, we may not agree to
                                               the proposal.
(iv)    The provision in Rule 4                As such provision is generally not made in the
        (notification part) for describing     RRs, we may agree.
        Inter-Commissionerate
        deputation without deputation
        allowance has been suggested
        for deletion
(v)     The col. 7 related to added years of   It may be deleted.
        service
(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) Col. 11(renumbered 10)
… …
33 1/3 % by promotion 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)

38
PART D

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 absorption of persons from other cadres was envisaged at the

Commissionerate level, when Rule 5 of RR 2016 was framed. In the absence of a

specific provision to that effect, an employee from outside the cadre under the

control of a CCA cannot claim an ICT based on executive instructions. The

executive instructions which have been issued by DoPT in the form of OMs will not

prevail over RR 2016 which have been framed under the proviso to Article 309.

Similarly, the instructions which were issued by the Department of Revenue on 27

March 2009, relaxing the ban on ICT, which was imposed on 19 February 2004 and

the subsequent instructions dated 27 October 2011 were issued at the time when

RR 2016 were yet to be framed. These instructions will not govern or prevail when

the regime envisaged under RR 2016 came into force.

40 On behalf of the appellants, reliance was sought to be placed on the decision

of a two judge Bench of this Court in Prabir Banerjee v. Union of India and

Others 30. In that case, the Jabalpur Bench of the Central Administrative Tribunal

had been moved for challenging an order of transfer from Indore to Nagpur on the

30
(2007) 8 SCC 793

39
PART D

ground that an inter-zonal transfer was prohibited in the Department of Central

Excise and Customs. The petitioner was appointed as an Inspector of Central

Excise and was promoted as a Superintendent in the Bhopal Zone which comprised

the Commissionerates of Bhopal, Indore and Raipur. On 19 February 1994, the

Department of Revenue issued instructions for the discontinuance of ICTs for Group

B, C and D employees while stipulating that in exceptional circumstances, transfers

were allowed on deputation for a period of three years, extendable by one year on

extreme compassionate grounds. The above circular was amended on 9 March

2004 envisaging that ICTs among Commissionerates having a common cadre may

be allowed to continue as hitherto where there was no loss of seniority involved.

Thereafter, together with a batch of other officers, the petitioner was transferred from

the Indore Commissionerate to the Nagpur Commissionerate which was sought to

be challenged on the ground that inter-zonal transfers continued to be proscribed.

The Tribunal dismissed the OA and the High Court disposed of the writ petition, with

permission to the petitioner to submit a representation to the competent authority.

While the petitioner relied on the prohibition 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,

40
PART D

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 order of transfer was issued by the Chief Commissionerate of Central Excise,

Bhopal Zone under the powers vested in him by the Board by its circular dated 16

January 2003. This Court held:

“22. No doubt transfer is an incident of service in an all-India
service and under the Central Service Rules the controlling
authority was competent to transfer the petitioner to any place
in India, where it considered expedient to do so. But apart
from the above, we also have to take into consideration the
decision of the Central Board of Excise and Customs in its
communication dated 24-8-1984 by which pending decision
on the demand for bifurcation of Group ‘B’ and ‘C’ cadres
relating to Nagpur and Indore Collectorates the Board took a
decision that cadre control of the said two Collectorates would
be distributed between the two Collectors as indicated in the
said communication. As mentioned hereinabove, while the
Collector of Central Excise, Nagpur, was made the Cadre
Controlling Authority of Group ‘B’ and ‘C’ ministerial cadres,
the Collector of Central Excise, Indore was made the Cadre
Controlling Authority of executive cadres of Group ‘B’ and ‘C’.

We are alive to the fact that the decision taken by the Board
was an administrative decision, but in the absence of any
direct rule relating to transfer between two Collectorates
under the Central Board of Excise and Customs, the said
administrative instruction would have to be implemented
insofar as inter-Collectorate transfers between the Nagpur
and Indore Collectorates was concerned. In fact, by
subsequent Circular dated 16-1-2003 the Board further
declared that the Chief Commissioner of Central

41
PART D

Excise/Customs in a Commissionerate would be the Cadre
Controlling Authority up to Group ‘B’-level staff, and its
functions would include monitoring the implementation of the
Board’s instructions with regard to the transfers and equitable
distribution of manpower and material resources between the
Commissionerates/zones.”

41 The judgment in Prabir Banerjee (supra) was hence, on completely different

facts.

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

42
PART D

(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 policy can be assessed on the touchstone of

constitutional parameters. Moreover, short of testing the validity of a policy on

constitutional parameters, judicial review can certainly extend to requiring the State

to take into consideration constitutional values when it frames policies. The State,

consistent with the mandate of Part III of the Constitution, must take into

consideration constitutional values while designing its policy in a manner which

enforces and implement those values.

44 There are three areas where the circular dated 20 September 2018 has been

challenged on the grounds of constitutionality. The first is on the ground that the

impugned circular bans ICTs with respect to different classes of posts within the

same service, and hence it is discriminatory between Group A, B and C employees.

We are unable to accept this ground as there is no material on record to indicate

that all three groups are pari materia with each other. It may be the case that the

instances of abuse of ICTs is higher with respect to employees in Group B, as

opposed to the other groups. Such decisions are taken keeping in mind the strength

of the service and the needs of the administration.

43
PART D

45 The impugned circular has further been challenged on the aspect of gender

equality and need for equal treatment of disabled persons. We will briefly deal with

both these issues.

46 In a recent judgment of a two-judge Bench of this Court in Lt. Col. Nitisha

and Others v. Union of India 31, of which one of us (Justice DY Chandrachud) is a

part, the Court emphasized that discrimination both direct and indirect is contrary to

the vision of substantive equality under Articles 14, 15 and 16 of the Constitution.

Elaborating on the doctrine of substantive equality and its engagement with

discrimination both in its direct and indirect form, the judgment of the Court takes

due account of ground realities founded on the socio-economic structure of our

society. In Nitisha (supra), this Court held:

“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

31
2021 SCCOnline SC 261

44
PART D

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
Kumar v. Union Public Service Commission
[2021 SCC
OnLine SC 84] this Court recognized reasonable
accommodation as a substantive equality facilitator.”

47 The Court emphasized that discrimination is not always a function or product

of a conscious design or intent. Discrimination may result by an unconscious bias or

a failure to recognize unequal impacts which are produced by the underlying societal

structure. In paragraph 83 of the judgment in Nitisha (supra), the Court held:

“83. A study of the above cases and scholarly works gives
rise to the following key learnings. First, the doctrine of
indirect discrimination is founded on the compelling insight
that discrimination can often be a function, not of conscious
design or malicious intent, but unconscious/implicit biases or
an inability to recognize how existing structures/institutions,
and ways of doing things, have the consequence of freezing
an unjust status quo. In order to achieve substantive equality
prescribed under the Constitution, indirect discrimination,
even sans discriminatory intent, must be prohibited.

84. Second, and as a related point, the distinction between
direct and indirect discrimination can broadly be drawn on the
basis of the former being predicated on intent, while the latter
is based on effect (US, South Africa, Canada). Alternatively, it
can be based on the fact that the former cannot be justified,
while the latter can (UK). We are of the considered view that
the intention effects distinction is a sound jurisprudential basis
on which to distinguish direct from indirect discrimination. This
is for the reason that the most compelling feature of indirect
discrimination, in our view, is the fact that it prohibits conduct,
which though not intended to be discriminatory, has that
effect. As the Canadian Supreme Court put it in Ontario
HRC (supra) [Ontario Human Rights Commission v.

Simpsons-Sears [1985] 2 SCR 53], requiring proof of
intention to establish discrimination puts an “insuperable

45
PART D

barrier 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 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 social structures which bear upon the lives of women in the work place

and produce disparate outcomes coupled with or even without an intent to

46
PART D

discriminate. The provision which has been made for spousal posting is in that

sense fundamentally grounded on the need to adopt special provisions for women

which are recognized by Article 15(3) of the Constitution. The manner in which a

special provision should be adopted by the State is a policy choice which has to be

exercised after balancing out constitutional values and the needs of the

administration. But there can be no manner of doubt that the State, both in its role as

a model employer as well as an institution which is subject to constitutional norms,

must bear in mind the fundamental right to substantive equality when it crafts the

policy even for its own employees.

49 The other ground of challenge which has been raised is that the impugned

circular does not take into account the needs of disabled persons in the State’s

workforce. The Rights of Persons with Disabilities Act 2016 is a statutory mandate

for recognizing the principle of reasonable accommodation for the disabled

members of society. This obligation has been elaborated upon in several decisions

of this Court including Vikash Kumar v. Union Public Service Commission and

Others 32, Avni Prakash v. National Testing Agency and Others 33 and Ravinder

Kumar Dhariwal and Another v. Union of India and Others 34. In Vikash Kumar

(supra), this Court observed that:

“63. In the specific context of disability, the principle of
reasonable accommodation postulates that the conditions
which exclude the disabled from full and effective participation
as equal members of society have to give way to an

32
(2021) 5 SCC 370
33
2021 SCC OnLine SC 1112
34
2021 SCC OnLine SC 1293

47
PART D

accommodative society which accepts difference, respects
their needs and facilitates the creation of an environment in
which the societal barriers to disability are progressively
answered. Accommodation implies a positive obligation to
create conditions conducive to the growth 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.




35
     2021 SCC OnLine SC 1180


                                                    48
                                                                                 PART D

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 element of the dignity of the person and a postulate of privacy. How a

particular policy should be modulated to take into account the necessities of

maintaining family life may be left at the threshold to be determined by the State. In

crafting its policy however the State cannot be heard to say that it will be oblivious to

basic constitutional values, including the preservation of family life which is an

incident of Article 21.

52 The circular dated 20 September 2018 has taken into account, what it

describes “exceptional circumstances” such as “extreme compassionate grounds”.

Leaving these categories undefined, the circular allows for individual cases to be

determined on their merits on a case by case basis, while prescribing that transfers

on a “loan basis” may be allowed subject to administrative requirements with a

tenure of three years, extendable by a further period of two years. While proscribing

ICTs which envisage absorption into a cadre of a person from a distinct cadre, the

circular permits a transfer for a stipulated period on a loan basis. Whether such a

provision should be suitably enhanced to specifically include cases involving

(i) postings of spouses;

(ii) disabled persons; or

49
PART D

(iii) compassionate transfers, is a matter which should be considered at a policy

level by the Board.

53 In considering whether any modification of the policy is necessary, they must

bear in mind the need for a proportional relationship between the objects of the

policy and the means which are adopted to implement it. The policy above all has to

fulfill the test of legitimacy, suitability, necessity and of balancing the values which

underlie a decision making process informed by constitutional values. Hence while

we uphold the judgment of the Division Bench of the Kerala High Court, we leave it

open to the respondents to revisit the policy to accommodate posting of spouses,

the needs of the disabled and compassionate grounds. Such an exercise has to be

left within the domain of the executive, ensuring in the process that constitutional

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.

..………………………….……………………..J.

[Dr Dhananjaya Y Chandrachud]

…..…..…….………..……………….………..J.

[Vikram Nath]

New Delhi;

March 10, 2022

50



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