TMI Blog2022 (3) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... rests of the administration, no employee can assert a vested right to claim an ICT. 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 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 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 pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Yashraj Singh Deora, AOR Mr. Shyam Agarwal, Adv. Ms. Vibha Datta Makhija, Sr. Adv. Mr. Vikas Singh, Sr. Adv. Mr. Ashish Pandey, Adv. Mr. Rishi Kapoor, Adv. Mr. Kapish Seth, Adv. Mr. Prateek Rai, Adv. Mr. Ashutosh Bhardwaj, Adv. Mr. Akanshya Rai, Adv. Ms. Saksha Jha, Adv. Mr. Sandeep Sharma, Adv. Mr. Vishwa Pal Singh, AOR Mr. Ronak Karanpuria, AOR 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 PART A A Facts 1 A Division Bench of the High Court of Kerala dealt with a batch of petitions under Article 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Board of Excise and Customs Now referred to as Centra Board of Indirect Taxes and Customs (CBIC) (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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 OM which have held the field in the past. There are two sets of ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mportance to the enhancement of women s status in all sectors and all walks of life ; (v) On 8 July 2009, an OM No.13018/4/2009-Estt.(L) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctive 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 F. No.A.22015/3/2004-ad.IIIA 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: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (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 hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 background, it becomes clear that the non-inclusion of Rule 4(ii) while framin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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; (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. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 (1992) 1 SCC 306 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 maki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. Union of India and Others v. Somasundaram Viswanath and Others, (1989) 1 SCC 175, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 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 CC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatutory 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cession; (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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 (vi) matters relating to amendments to service rules having a predominantly fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the proposal for keeping the age limit for 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 height is being dispensed with for those who have been recruited without such criteria It may be mentioned that D/o Revenue has insisted for keeping the provision for physical tests and physical standards for considering promotion due to 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 (notification part) for describing Inter-Commissionerate deputation without deputation allowance has been suggested for deletion As such provision is generally not made in the RRs, we may agree. (v) The col. 7 related to added years of service It may be deleted. (vi) Col. 10 (renumbered 9) 2 years of DR and promotees (except those who are already holding posts in Gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a two-judge Bench of this Court in Lt. Col. Nitisha and Others v. Union of India 2021 SCCOnline SC 261 , 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 evolut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 workpl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC OnLine SC 1112 and Ravinder Kumar Dhariwal and Another v. Union of India and Others 2021 SCC OnLine SC 1293 . 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 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 it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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