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2019 (4) TMI 1859 - HC - Indian LawsRecruitment Rules - Validity of Notifications issued for the purpose of filling up the available vacancies by way of direct recruitment and to direct the Chief Commissioner, Patna - whether, the absence of provision for ICT in the Recruitment Rules of 2016 would curtail the right of the respondents for ICT? - whether the executive orders leading up to Annexure A3 can exist independently and govern the field of ICT, de hors Annexure R4 Rules of 2016? HELD THAT:- The contention urged, based on the principle laid down in the afore-mentioned decision is that, insofar as the Recruitment Rules of 2016 do not contain any provision regarding transfer, it is not an occupied field and therefore, Annexure A3, which is an Executive Order governing the issue of ICT is a valid order. The said contention regarding the absence of provision prohibiting ICT in the Recruitment Rules of 2016 and the validity of Annexure A3 order cannot be countenanced for the following reasons; it is not in dispute that Annexure R3 Recruitment Rules of 2002 contained a provision enabling ICT. It is an admitted fact that no such provision is included in the Recruitment Rules of 2016 and on the other hand, Rule 5 of Annexure R4 specifically stipulate that each Cadre Controlling Authority (CCA) shall have its own separate cadre, unless otherwise directed by the Central Board of Excise and Customs. Any inter-commissionerate transfer would violate the unique identity of each cadre envisaged under Rule 5 of Annexure R4, the Recruitment Rules of 2016. In that view of the matter, ICT orders issued on the strength of Annexure A3 would definitely be a transgression into the field occupied by Annexure R4 Rules issued in exercise of the power under the proviso to Article 309 of the Constitution of India. There are considerable force in the contention urged by the learned Additional Solicitor General that Annexure A1 having been issued without authority and in violation of the Recruitment Rules of 2016, was invalid and hence the cancellation of Annexure A1 by issuing Annexure A2 was perfectly in order. Having held that transfer is a condition of service, we also hold that it is well within the power of the employer to take a policy decision either to grant or not to grant ICT to its employees. There cannot be a judicial review and interference on such policy decisions. In the absence of a provision for ICT in Annexure R4 Recruitment Rules of 2016, the Tribunal could not have found fault with the authorities in having issued Annexure A2 order cancelling Annexure A1 by which ICT was granted to the respondents and others. Petition allowed.
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