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TMI Blog2023 (2) TMI 434X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Government as Inspector on 04.12.2018 and was posted in the Commissionerate, CGST, Audit, Durgapur, West Bengal. The respondent no.3 - the Directorate General of Vigilance, Ahmedabad Zonal Unit, Ahmedabad published a notification dated 18.12.2019 on the website of the Central Board of Indirect Taxes and Customs inviting applications from inspectors to fill-up four vacancies in the zonal unit on deputation basis for a period of three years. 2.2. The husband of the petitioner is also in the Central Government Office as an Inspector posted at Ahmedabad and therefore, she had shown her willingness for being posted at Ahmedabad through her letter dated 30.12.2019 and the same was sent through her parent department i.e. Durgapur Audit, Commissionerate, West Bengal. Her application was accepted by the respondent no.3 and the Establishment Order came to be passed on 03.07.2020 appointing the petitioner with two other inspectors in the office of Directorate General of Vigilance on deputation basis for three years from the date of her joining the office. She accordingly joined on 17.07.2020. 2.3. On 20.09.2021, she requested to grant maternity leave for 180 days from 27.09.2021 to 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner on 04.02.2022 and the maximum time period has been allowed to the authority to send the reply to her under the RTI Act. This, according to her, is nothing but an attempt to harass a lady officer during her maternity leave. 2.8. When the petitioner realized that it was expedient for her to approach the judicial authority, it approached the Tribunal by preferring OA No. 81 of 2022 on 07.03.2022. After availing opportunities to both the sides, by an order dated 09.03.2022, the Tribunal stayed the execution, operation and implementation of the relieving order as an ad-interim relief. 2.9. Upon issuance of notice in the OA proceedings, the official respondent had filed affidavit-in-reply on 06.04.2022 and contended that the petitioner has suppressed the material fact that she has been relieved on 15.11.2021 and pursuant to the relieving order, the Principal Chief Commissioner Office, Kolkatta had accepted the repatriation vide communication dated 16.11.2021 and the same had been, in turn, communicated to the petitioner through WhatsApp. It is further their stand that as per the Establishment Order, the officers are liable to be repatriated at any time on exigencies of serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng has been issued and if she was not logged in for some days, the partial details could not have been submitted as the total tenure was of 427 days and the entire detail is not available. 2.12. The Tribunal after hearing both the sides had passed the order impugned. This confirmation of the order by the Tribunal has been challenged before this Court along with the challenge to the very approach of the Tribunal which according to the petitioner is in complete violation of the established principles. 3. The other side appeared on issuance of notice and considering the urgency in the matter, both the sides have agreed for final hearing at the admission stage. Accordingly, this Court on 10.08.2022 passed the order and they both have been heard. 4. Learned advocate Mr. Hardik Vora appearing for the petitioner has, along the line of memo of petition, argued the matter and also has relied on some of the authorities which shall be discussed. 5. Learned Standing Counsel Mr. Harsheel Shukla appearing for Union of India has defended strongly the version of the respondent as also the order of Tribunal which is impugned here. The very maintainability is being questioned of the application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orm and discharge his duties with highest degree of professionalism and dedication to the best of the abilities of the CCS (conduct) Rules, 1964 and were omitted from the charge memorandum issued to the office. 5.3. Later on, painstaking efforts were made to amend the charge memorandum by getting violation inserted in the charge memorandum. Therefore, this explanation was sought from her and she replied and was warned eventually. It was also noticed that she had not opened the menu on the working days even though she had not availed any kind of leaves on those days. She did not even log in to check on the the menu on working days, which had shown how insincere she was in performing her duties. She was repatriated to her parent Commissionerate on 15.11.2021 although her maternity leave commenced on 27.09.2021. Grave lapse was noticed after she proceeded on leave and therefore, this approach had led the supervisory officer to send her back to her parent department. 6. This has been also answered in rejoinder by the other side which may not be required to be detailed here. 7. For the reasons stated herein after, the Court is of the opinion that the entire aspect would require a re- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s since are available and the husband is posted in Ahmedabad, the guideline had been followed and on her request she has been brought here on deputation. The applicant who was on deputation as a Inspector in Directorate General of Vigilance, Ahmedabad Zonal Unit, by a reliving order, she has been repatriated to her parent Commissionerate CGST Audit, Durgapur on 15.11.2021. One can notice the letter dated 23.11.2021 which is from the Additional Commissioner addressed to the Commissioner of CGST, Durgapur Audit Commissionerate sending a copy of the reliving order in respect of the present applicant and thus, the Additional Commissionerate, Directorate General of Vigilance, Custom and Central Excise, Ahmedabad Zonal Unit has formally communicated this repatriation to the parent department - Durgapur Audit Commissionerate and w.e.f. 15.11.2021 she has been repatriated. 8. This issue came up for consideration before the Central Administrative Tribunal, Principal Bench, New Delhi in case of Nawal Kishore Sharma vs. National Highway Authority of India and Others [OA No. 278/2017, decided on 28.02.2017]. There the applicant joined the National Highway Authority of India (NHAI) on deputati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atriation must be based on justifiable reasons. If it is on the ground of misconduct, then issue of show cause notice is also necessary to give opportunity to the deputationist to explain his position. 8.3. The reference is made of the decision of Smt. Rashmi Jain vs. Union of India [dated 23.05.2008] of the Co-ordinate Bench of the Tribunal decided on 23.05.2008 where the applicant was repatriated without issuance of show cause notice. The reasons given were that she had displayed obstructive attitude while dealing with payment of legal remuneration to the advocates who had defended AIIMS in various litigations and that such payment was to be made not as an advance but after the advocates appeared for the institution. The Tribunal, in this decision, had noted that the respondent was in catch 22 situation. Had they disclosed the reasons for repatriation of the applicant, the repatriation order would have become stigmatic and on the other hand, when no reasons have been disclosed, they are being accused of repatriation without reasons. The Tribunal summoned the original file as the order did not disclose circumstances for such premature repatriation to lift the veil and ascertain t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n extension for one year. The petitioner was prematurely repatriated on the ground of incompetence in the absence of chairperson. The question raised was whether the respondent could have issued the order of repatriation of the petitioner before the date of expiry of his tenure. It was held that power of appointment includes the power to terminate. Repatriation is akin to termination of deputation. There being no chairperson, no approval forthcoming, the petitioner was held to be entitled to continue till the time of deputation comes to an end as the decision of extension was taken by the then chairperson. "20. The power of appointment includes the power to terminate (Ref: Section 16 of General Clauses Act, 1897). The repatriation is akin to termination of deputation and it was conceded by Mr. Paul that the decision to prematurely repatriate the petitioner back to his parent department, was by Secretary General. Though, he relied upon the provisions of Section 3 (4) of the Act of 1993 to contend that the Secretary General being the Chief Executive Officer, can exercise all administrative and financial powers and hence competent to prematurely repatriate the petitioner. This submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and invalid and the service of the first respondent as Assistant Settlement Commissioner was validly terminated only on February 10, 1959 when the Central Government, by its memorandum dated January 10, 1959, gave notice terminating the service of the first respondent. There was no dispute before us that if the service of the first respondent came to an end on February 10, 1959, and not earlier on April 17, 1956, the first respondent would be entitled to a sum of Rs 22,927.34 p. as decreed by W.P.(C) 451/2021 Page 15 the High Court."" 9.1. The decision of the Apex Court in case of Lachmi Narain and Others vs. Union of India and Others [AIR 1976 SC 714] was considering whether the notification dated 07.12.1957 issued by the Central Government in purported exercise of its powers under Section 2 of the Union Territories (Laws) Act, 1950 is ultra vires the central government and the Court after detailed consideration of this, has held that Section 6(2) as it stood immediately before the impugned notification required the State Government to give, by a notification in Official Gazette, not less than three months' notice of its intention to add or omit from or otherwise amend the sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r exemption from tax causes least dislocation and inconvenience to the dealer in collecting the tax for the Government, keeping accounts and filing a proper return, and to the Revenue in assessing and collecting the same. Another object of this provision is that the public at large and the purchasers on whom the incidence of the tax really falls, should have adequate notice of taxable items. The third object seems to be that the dealers and others likely to be affected by an amendment of the Second Schedule may get sufficient time and opportunity for making representations, objections or suggestions in respect of the intended amendment. The dealers have also been ensured adequate time to arrange their sales adjust their affairs and to get themselves registered or get their licenses amended and brought in accord with the new imposition or exemption. 70. Taking into consideration all these matters, the legislature has in its judgment solemnly incorporated in the statute, fixed the period of the requisite notice as "not less than three months" and willed this obligation to be absolute. The span of notice was thus the essence of the legislative mandate. The necessity of notice and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that the order of repatriation passed by the Ministry of Human Resources is based on a letter and the action had not been taken to repatriate the respondent on the basis of a complaint. It discussed the advance intimation of the reasonable period to lending ministry and the said procedure had not been followed. Referring to the decision of the Apex Court in case of Union of India through Government of Pondicherry and others vs. V. Ramakrishnan and others [2005 (8) SCC 394] and the decision of Parsottamlal Dhingra vs. Union of India [AIR 1958 SC 36], where the Court had observed that where an appointment on deputation is made for a specific period, unless any disciplinary proceedings initiated upon a person, he will be entitled to hold the said post. However, considering the documents placed before the Court, there were many allegations levelled against the person which were prima facie found to be correct, his continuation on the post was not in the welfare of the institution. Inquiry report was not produced before the Tribunal, but, the reference has been made that there are serious complaints and accordingly, the Court held that the order of premature repatriation passed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion could be considered after the coming into force of RR 2016; (vii) Transfer is a condition of service and it is within the powers of the employer to take a policy decision either to grant or not to grant ICTs to employees; and (viii) The power of judicial review cannot be exercised to interfere with a policy decision of that nature. 43. 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 value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are constitutionally impermissible, in that they are outmoded in content and stifling in means. The Court further held that no law that ends up perpetuating the oppression of women could pass scrutiny. Barriers that prevent women from enjoying full and equal citizenship, it was held, must be dismantled, as opposed to being cited to validate an unjust status quo. In National Legal Services Authority v. Union of India [(2014) 5 SCC 438], this Court recognized how the patterns of discrimination and disadvantage faced by the transgender community and enumerated a series of remedial measures that can be taken for their empowerment. In Jeeja Ghosh v. Union of India [(2016) 7 SCC 761 and Vikash Kumar v. Union Public Service Commission [2021 SCC OnLine SC 84] this Court recognized reasonable accommodation as a substantive equality facilitator." 47. The Court emphasized that discrimination is not always a function or product of a conscious design or intent. Discrimination may result by an unconscious bias or a failure to recognize unequal impacts which are produced by the underlying societal structure. In paragraph 83 of the judgment in Nitisha (supra), the Court held: "83. A study ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus, they are burdened with an unequal share of family responsibilities. Measures to ensure substantive equality for women factor in not only those disadvantages which operate to restrict access to the workplace but equally those which continue to operate once a woman has gained access to the workplace. The impact of gender in producing unequal outcomes continues to operate beyond the point of access. The true aim of achieving substantive equality must be fulfilled by the State in recognizing the persistent patterns of discrimination against women once they are in the work place. The DoPT OMs dated 3 April 1986, 23 August 2004, 8 July 2009 and 30 September 2009 recognised the impact of underlying social structures which bear upon the lives of women in the work place and produce disparate outcomes coupled with or even without an intent to discriminate. The provision which has been made for spousal posting is in that sense fundamentally grounded on the need to adopt special provisions for women which are recognized by Article 15(3) of the Constitution. The manner in which a special provision should be adopted by the State is a policy choice which has to be exercised after balancing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that the framing of policy must meet an integrated proportionality analysis which answers whether the measure is: (i) in furtherance of a legitimate aim; (ii) suitable for achieving the aim; (iii) necessary for achieving the aim; and (iv) adequately balanced with the rights of the individual. 51. The State in the present case has been guided by two objectives: first, the potential for abuse of ICTs and second, the distortion which is caused in service leading to plethora of litigation. 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 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. 52. The circular dated 20 September 2018 has taken into account, what it describes "exceptional circumstances" such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court has made it abundantly clear in its decision that the transfer in All India Service is an incident of service where the employee should be posted are the matters which are governed by the exigencies of service and employee does not enjoy the fundamental right or the vested right to claim the transfer or posting of their choice. The executive instructions and directions for transfer and posting do not confer any indefeasible right to claim a transfer or posting. This aspect also has been examined by the Apex Court in relation to the circular dated 20.09.2018 which takes into account "exceptional circumstances" such as "extreme compassionate grounds". Leaving these categories undefined, the circular allows for individual cases to be determined on their merits on a case by case basis and therefore, there are detailed directions of the Apex Court coupled with the directions to revisit some of them for the purpose of ensuring the protection of constitutional values. 12.2. The 20.09.2018 instructions in respect of the inter-commissionerate transfer, in light of the new Recruitment Rules, 2016 issued by the Ministry of Finance Department of Revenue have been considered by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y leave when the baby was extremely young and no salary has been made available to her. 12.4. This incident of non-issuance of notice before repatriation will obviously warrant interference to the extent of fixing the responsibility on the officer who has failed to so do it. 12.5. This Court cannot be oblivious of the chronological events and the pre-determined step of the concerned officer to repatriate her to the parent department at the time when she deserved, if nothing else, humane treatment and legalized approach. The least that could have been done was to issue the notice before repatriation and make payment of her salary. If the petitioner remained protected by virtue of judicial orders, those in the authority have no right to gag her by not paying the salary because she did not join at her parent department. She has not remained unauthorizedly absent to deserve this approach. Even if the repatriation is the right of the employer, its exercise shall necessarily be in accordance with the prevalent rules. 13. Resultantly, this petition is allowed partly interfering with the order of the Tribunal by directing the respondent to follow the prescribed procedure of issuance of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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