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TMI Blog2019 (4) TMI 1859X X X X Extracts X X X X X X X X Extracts X X X X ..... /2018 and O.P.(CAT) No.190/2018 against the order in O.A.No.164/2018. 2. In O.A No.956/2017, the respondents, who were Inspectors of Central Tax and Central Excise at the Cochin Commissionerate, had submitted applications for Inter-Commissionerate Transfer (ICT) and were awaiting the outcome of their applications. In the meanwhile, the 4th petitioner sought to fill up the vacancies to which the respondents had sought transfer, by effecting direct recruitment. Therefore, the original application was filed seeking to quash the notifications issued for the purpose of filling up the available vacancies by way of direct recruitment and to direct the Chief Commissioner, Patna to consider their request for ICT. 3. In O.P.(CAT) Nos.176 and 190 of 2018, the request for ICT of the respondents and some other Inspectors had been sanctioned as per Annexure A1 order dated 19.1.2018. Immediately thereafter, Annexure A2 order was issued, cancelling Annexure A1 order. Thereupon, the original applications were filed seeking to quash Annexure A2 and to declare that the respondents are entitled to get Annexure A1 implemented, since they were found entitled for transfer by the committee constituted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 of another Commissionerate of Directorate under the Central Board of Excise and Customs." 6. It was submitted that the Recruitment Rules, 2002 was superseded and substituted by Annexure R4, the Central Excise and Customs Commissionerates Inspector (Central Excise, Preventive Officer and Examiner), Group 'B' Posts Recruitment Rules, 2016. It is contended that the Recruitment Rules of 2016 does not contain a provision akin to Rule 4 of the 2002 Rules. On the other hand, Rule 5, which is the Special Provision under the Recruitment Rules of 2016, reads as follows: "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." 7. Relying on the above provision, it was contended that the practice of ICT ceased to exist after introduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules made under Art.309 of the Constitution cannot be tinkered by the administrative Instructions of Circulars." 9. In Prasanna Kumar Sahoo's case, the issue was whether, the State Government could take a policy decision in exercise of its power under Article 162 of the Constitution, contrary to the statutory rules framed under Article 309 of the Constitution. The Apex Court answered the issue by holding that even a policy decision taken by the State in exercise of its jurisdiction under Article 162 of the Constitution of India would be subservient to the Recruitment Rules framed by the State either in terms of a legislative act or the proviso appended to Article 309 of the Constitution of India. It was held that a purported policy decision issued by way of an executive instruction cannot override the statute or statutory rules, far less the constitutional provisions. 10. The learned Additional Solicitor General submitted that some Commissionerate's had issued orders effecting ICT, disregarding the 2016 Recruitment Rules and this had caused the Government of India to issue Circular No.F.No.A-22015/117/2016-Ad.IIIA dated 20.9.2018 [Exhibit R1(o)], informing all Commissionerat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermanent Government servant against the latter's will outside his cadre. Answering the question, it was held as follows: "It is true that once the Government is shown to have the authority to transfer a Government servant the courts would be most reluctant and disinclined to interfere, with the exercise administrative discretion by the Government on the obviously possible plea that the administration is the best judge and in the know of all relevant circumstances to determine as to the desirability or the propriety of any particular posting of a Government servant. It was held, even in the face of such constraints, it is the bounden duty of the courts to interfere in a case where it is shown that there is no legal authority in the Government to transfer a Government servant. That, the executive can only act in pursuance of the powers given to it by law and it can claim immunity from challenge only on the condition that it can support the legality of its action before a court of justice. Based on the said reasoning, it is held by the High Court that in the absence of authority to transfer the petitioner therein outside his cadre, the impugned order of transfer is bad, since t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Central Administrative Tribunal is akin to the jurisdiction of the High Court under Art. 226 of the Constitution of India in service matters. This is evident from a perusal of Art. 323A of the Constitution. The constraints and norms which the High Court observes while exercising the said jurisdiction apply equally to the Tribunal created under Art. 323A. (We find it all the more surprising that the learned single Member who passed the impugned order is a former Judge of the High Court and is thus aware of the norms and constraints of the writ jurisdiction). The Administrative Tribunal is not an Appellate Authority sitting in judgment over the orders of transfer. It cannot substitute its own judgment for that of the authority competent to transfer. In this case the Tribunal has clearly exceeded its jurisdiction in interfering with the order of transfer. The order of the Tribunal reads as if it were sitting in appeal over the order of transfer made by the Senior Administrative Officer (competent authority)." 14. In conclusion, the learned Additional Solicitor General contended that the Tribunal had exceeded its jurisdiction in directing to effect transfer of the respondents, who w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er within the same Department. Later, Annexure R1(g) order was issued prescribing conditions for inter-collectorate transfers of Group-C Officers on compassionate grounds. By Annexure R1(h) dated 19.2.2004, decision was taken that henceforth no Intercommissionerate transfer shall be allowed for any Group B, C or D employee and instead, in exceptional circumstances, depending upon the merits of each case, 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. Even such transfer on deputation basis, would be allowed only on extreme compassionate grounds. Immediately thereafter, Ext.R1(i) clarification was issued stating that Inter-commissionerate transfers amongst the Commissionerates having common cadre, may be allowed to continue as hitherto, without loss of seniority. The ban on ICT brought about by Ext.R1(h) was further relaxed under Ext.R1(j) by permitting ICT of Group B, C and D Officers beyond the Commissionerates having common cadre, without any loss of seniority, subject to the twin condition that (i) the transfer shall be permissible only in cases where the spo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ICT in future will have to revert back to their parent Commissionerate first and apply afresh for during the interim period from 10.02.2004 (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." 16. It was contended that the power to order ICT emanate from Annexure A3, independent of Annexure R4. That, Annexure R4 being the Recruitment Rules, it does not take in transfers, since transfer is not a condition of service and is rather an incidence of service. The following judgments were cited in support of this contention: Lily Kurien v. Sr. Lewina and others [AIR 1979 SC 52], General Officer Commanding and another v. Dr.Subhash Chandra Yadav [(1988) 2 SCC 351], Gujarat Electricity Board and another v. Atmaram Sungomal Pushani [(1989) 2 SCC 602], I.N Subba Reddy v. Andhra University and others [AIR 1976 SC 2049], B.Varadha Rao v. State of Karnataka and others [AIR 1986 SC 1955], Thrissur District Co-operative Bank v. Delson [2002 (1) KLT 852], Sashikumar v. State of Kerala [1998 (2) KLT 330] and A.B.Krishna and others v. State of Karnataka and others [ (199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Annexure A1 order. 19. The point that arise for consideration from the pleadings and the arguments advanced is whether, the absence of provision for ICT in the Recruitment Rules of 2016 would curtail the right of the respondents for ICT and 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. 20. As far as the contention with respect to estoppel based on Annexures A4 to A6 is concerned, we immediately note that Annexures A4 judgment of this Court and Annexure A5 order of the Tribunal were passed at a time when Annexure R3 Recruitment Rules of 2002 was in force. Since Rule 4 (ii) of Annexure R3 provided for ICT, the Tribunal was justified in issuing the directions. For the same reason, this Court was right in upholding the findings of the Tribunal, as per Annexure A4 judgment. Even though, Annexure A6 guidelines was issued after Annexure R4 Recruitment Rules of 2016 had come into force, the guidelines were issued in compliance of Annexure A5 order of the Tribunal, which was prior to the coming into force of the Recruitment Rules of 2016 and as such the guidelines do not have any persuasiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chapter V of the Administration Manual and Clause 10 of the agreement, the appellant could not have any legal grievance and that no writ lay to quash the order terminating the contract of service. Aggrieved, the appellant approached the Supreme Court and by the decision cited supra, the Apex Court dismissed the appeal finding that the terms and conditions of service specified in the contract of employment entered between the appellant and the University contained an express provision for termination of his services by six months' notice on either side. Our attention was drawn to paragraph 13 of the judgment, wherein, relying on the explanation in State of Madhya Pradesh v. Shardul Singh [1970 (3) SCR 302], the Apex Court held that the expression 'conditions of service' means all those conditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and even beyond it. We are of the opinion that the decision does not in any manner support the contention of the respondents and on the other hand lays down the position that the expression 'conditions of service' takes in all those conditions which regulate the hold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed upon in support of the contention that an order of transfer ipso facto varies, to the disadvantage of a Government servant, any of his conditions of service. The explanation in Varadha Rao's case cannot therefore be relied on in support of the proposition that transfer is not a condition of service. In fact, a Division Bench of this Court in Sreenarayana Trust and others v. State of Kerala [ILR 2007 (2) Ker. 478], while considering the extent of power of the Kerala University to issue first statutes regarding transfer of teachers of colleges under corporate managements affiliated to the university, considered the question as to whether transfer is a condition of service. Argument had been advanced before the Division Bench, based on the decision in Varadha Rao's case (supra), that transfer is not a condition of service and is only an incident of service. The Division Bench held that in Varadha Rao's case, the Supreme Court had only held that transfer is an incident of service of an employee and therefore, transfer of an employee does not result in any change in the conditions of service, to the disadvantage of the employee. The Division Bench placed reliance on the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 495], the Karnataka Government had made the Mysore Fire Force (Cadre Recruitment) Rules, 1971, which contained a provision for promotion to the post of leading firemen from the post of Firemen/Firemen Drivers. An examination was conducted in accordance with the Rules and a select list prepared for promotion to the post of leading firemen. Pending the select list, the Government of Karnataka took a policy decision that promotions to various posts, including that of leading firemen, shall be made on the basis of seniority-cum-merit and not by selection. The Karnataka Civil Services (General Recruitment) Rules, 1977 was amended accordingly and the appellants promoted to the post of leading firemen based on seniority. Their promotions were challenged on the ground that the Karnataka Civil Services (General Recruitment) Rules, 1977 was not applicable and that promotion to the post of leading firemen shall continue to be governed by the Mysore Fire Force (Cadre Recruitment) Rules, 1971 made by the State Government under Section 39 of the Fire Force Act, 1954. Answering the issue involved, the Apex Court held as follows: "It is no doubt true that the Rule-making authority under Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence the cancellation of Annexure A1 by issuing Annexure A2 was perfectly in order. The decisions in Prem Parveen v. Union of India and others [1973 SCC OnLine Delhi 194] and Bhagawati Prasad Gordhandas Bhatt v. The State of Gujarat and others [1976 SCC OnLine Gujarat 51], lend credence to the contention. Moreover, the question as to whether Annexure A3 or Annexure R4 would govern the ICT of the respondents is no longer doubtful in view of Ext.R1 (o) Circular dated 20.9.2018 wherein, the Government of India has made it absolutely clear that the 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. In the light of Ext.R1(o), no reliance can be placed on Exts.R1(p) and R1(q) which are only office notes and related correspondences. 25. 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 Annex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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