Service Matters -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-Supreme Court.

 High Court of Kerala at Ernakulam
Case Law: SK Naushad Rahman and others vs Union of India
Case Details: Civil Appeal No. 1243 of 2022.
Date of Decision:  March 10, 2022.
Citation: 2022 LiveLaw (SC) 266.

• Prayer in the Writ petition: Set aside the judgment of Division Bench of the High Court of Kerala. 

• Facts about the case: 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 Transfers1. The High Court has concluded that the Central Excise and Customs Commissionerate’s Inspector (Central Excise, Preventive Officer and Examiner) Group ‘B’ Posts Recruitment Rules 20162 do not contain any provision for ICTs and, on the contrary, stipulate that each Cadre Controlling Authority3 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.

• Case of Petitioner:

(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.

(v) 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. 

(vi) 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.

(vii) 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.

(viii) 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;

(ix) 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

(x) The circular banning ICTs does not satisfy an integrated proportionality analysis.

• Case of Respondents:

(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.

(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. 

• Judgment of the Hon’ble Court with reasoning: 

1. 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 27 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.- PARA 51.

2. 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. -PARA 53.

• Principles relating to transfer and postings enunciated in Judgment of the Hon’ble Apex Court under Analysis.

1. 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. -PARA 24.

2. 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. -PARA 25.

3. Third, policies which stipulate that the posting of spouses should be preferably, and to the extent practicable, at the same station are subject to the requirement of the administration. -PARA 26.

4. Fourth, norms applicable to the recruitment and conditions of service of officers belonging to the civil services can be stipulated in: -PARA 28.

(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.

5. Fifth, where there is a conflict between executive instructions and rules framed under Article 309, the rules must prevail. In the event of a conflict between the rules framed under Article 309 and a law made by the appropriate legislature, the law prevails. Where the rules are skeletal or in a situation when there is a gap in the rules, executive instructions can supplement what is stated in the rules. -PARA 28.

6. 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. -PARA 29.

• Case law/Statutory Provisions/Notifications/Rules/Books referred:

1. Bank of India v. Jagjit Singh Mehta, (1992) 1 SCC 306.

2. Union of India v. SL Abbas, (1993) 4 SCC 357.

3. Union of Indiaand Others Vs Somasundaram Viswanathand Others, (1989) 1 SCC 175.

4. State of Orissa and Others v.Prasana Kumar Sahoo(2007) 15 SCC129,para 12.

5. JS Yadav v. State of UP, (2011) 6 SCC 570.

6. Jarnail Singh v. Lacchmi Narain Gupta, 2022 SCC OnLine SC 96.

7. Dr. Chakradhar Paswan v. State of Bihar [(1988) 2 SCC 214].

8. Union of India v. Pushpa Rani [(2008) 9 SCC 242].

9. Prabir Banerjee v. Union of India and Others, (2007) 8 SCC 793.

10. Lt. Col. Nitisha and Others v. Union of India, 2021 SCCOnline SC 261.

11. Anuj Garg v. Hotel Association of India [(2008) 3 SCC 1.

12. National Legal Services Authority v. Union of India [(2014) 5 SCC 438.

13. Jeeja Ghosh v. Union of India [(2016) 7 SCC 761.

14. Vikash Kumar v. Union Public Service Commission [2021 SCC OnLine SC 84].

15. Ontario Human Rights Commission v. Simpsons-Sears [1985] 2 SCR 53.

16. Vikash Kumar v. Union Public Service Commission and Others, (2021) 5 SCC 370.

17. Avni Prakash v. National Testing Agency and Others. 2021 SCC OnLine SC 1112.

18. Ravinder Kumar Dhariwal and Another v. Union of India and Others. 2021 SCC OnLine SC 1293.

19. Akshay N. Patel v. Reserve Bank of India, 2021 SCC OnLine SC 1180.

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