Transfer Condition Of Service Within Powers Of Employer Whether To Grant Or Not To Grant It To Employees: Supreme Court

Mr. Maninder Singh, Ms. Vibha Datta Makhija, Mr PN Ravindran, Mr. Narender Hooda, and Mr. Rana Mukherjee appeared for the Appellant while Mr. Rishi Kapoor and Mr. Umakant Mishra appeared for the intervenors. Mr. KM Nataraj, ASG appeared for the Respondents.

In appeal before the Supreme Court was the judgment of the Division Bench of the Kerala High Court in a batch of petitions under Article 226 of the Constitution that impugned the orders of the Central Administrative Tribunal on the issue of withdrawal of inter Commissionerate transfers. The High Court held that Central Excise and Customs Commissionerates Inspector (Central Excise, Preventive Officer and Examiner) Group 'B' Posts Recruitment Rules 2016 do not contain any provision for ICTs and, on the contrary, stipulate that each Cadre Controlling Authority will have its own separate cadre unless otherwise directed by the Central Board of Excise and Customs.

The Appellants before the Court were Inspectors of Central Excise and Land Customs or GST Administration. On 29 November 2002, the Central Excise and Land Customs Department Inspector (Group C posts) Recruitment Rules 2002 were notified.

A circular dated 20^th September 2018 was issued by CBIC stating that since Recruitment Rules 2016 did not contain any provision for recruitment by absorption, no application for ICTs could be considered after the enforcement of those rules.

This was challenged before the CAT and the challenge was upheld. The High Court reversed the decision of CAT.

The Court noted that transfer in All India Service is an incident of service and no employee has a fundamental right or a vested right to claim a transfer of their choice.

The Court also noted that when there is a conflict between executive instructions and rules framed under Article 309, the rules must prevail. In the event of a conflict between rules and the law, the law must prevail.

The Court made following crucial observations:

"Administrative instructions, it is well-settled, can supplement rules which are framed under the proviso to Article 309 of the Constitution in a manner which does not lead to any inconsistencies. Executive instructions may fill up the gaps in the rules. But supplementing the exercise of the rule making power with the aid of administrative or executive instructions is distinct from taking the aid of administrative instructions contrary to the express provision or the necessary intendment of the rules which have been framed under Article 309. RR 2016 have been framed under the proviso to Article 309. Rule 5 of RR 2016 contains a specific prescription that each CCA shall have its own separate cadre. The absence of a provision for filling up a post in the Commissionerate by absorption of persons belonging to the cadre of another Commissionerate clearly indicates that the cadre is treated as a posting unit and there is no occasion to absorb a person from outside the cadre who holds a similar or comparable post."

The Court noted that the High Court was justified in coming to the conclusion that RR 2022 contained a specific provision for ICTs and there is an absence of a provision comparable to Rule 4(ii) of RR 2002 in RR 2016.

The Court noted that the power of judicial review cannot be exercised to interfere with a policy decision of that nature.

The Court made the following crucial observations:

"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."

The Court relied upon the judgment rendered in Lt Col Nitisha v Union of India, 2021 SCCOnline SC 261 wherein the Court emphasized that discrimination both direct and indirect is contrary to the vision of substantive equality under Art. 14, 15, and 16 of the Constitution.

The Court emphasized that discrimination is not always a function or product of a conscious design or intent. Discrimination may result from an unconscious bias or a failure to recognize unequal impacts which are produced by the underlying societal structure.

The Court noted that it becomes necessary for the government to adopt policies through which it produces substantive equality of opportunity as distinct from formal equality for women in the workplace.

The Court also noted that the State's interference in the rights of privacy, dignity, and family life of persons must be proportional.

On the policy, the Court made the following observations:

"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 were accordingly disposed of.