|(2022) 12 SCC 1
|DATE OF JUDGEMENT
|MARCH 10, 2022
|SUPREME COURT OF INDIA
|SK. NAUSAD RAHAMAN & ORS
|UNION OF INDIA & ORS
|DR. DHANANJAYA Y CHANDRACHUD; VIKRAM NATH, JJ
The case of “Sk. Nausad Rahaman and ORS V/S Union of India & ORS, 10 March 2022” revolves around whether the circular issued by the Central Board of Indirect Taxes and Customs (CBIC) can be held valid in all conditions and if withdrawal of Inter-Commissionerate Transfers (ICT) is possible. The Supreme Court upheld the Kerala High Court’s judgement approving the withdrawal of ICT transfers. It has been emphasised that exigencies of service govern the transfer of employees, administration is required when the posting of spouses at the same station occurs, if conflicts occur between Rules under Article 309 and executive instructions, Rules would prevail. The Bench recommended the formulation of a policy by the State for the employees such that the protection of family life is an element of dignity and that the constitutional values are upheld as under Article 21.
FACTS OF THE CASE
The appellants are inspectors assigned to different Cadre Controlling Authorities who work for the Central Excise and Land Customs or, in some cases, the Goods and Services Tax Administration. Section 4 of the Customs Act of 1962, along with Section 4 of the GST Act and the Revenue Act of 1963, contain provisions allowing the Central Boards mentioned in these Acts to designate individuals as customs officers if they so choose.
“Each Cadre Controlling Authority (CCA) shall have its own separate cadre, unless otherwise directed by the Central Board of Excise and Customs,” according to Rule 5 of the Recruitment Rule, 2016. Whereby, in contrast to Rule 4(ii) of the Recruitment Rule 2002—which was replaced by Recruitment Rule 2016—an express provision for Inter-Commissionerate Transfers (ICTs) is not included.
The Central Board of Indirect Taxes and Customs (CBIC) published a circular on September 20, 2018, stating that no application for ICTs could be considered following the enforcement of the Recruitment Rule 2016 due to its lack of a provision for recruitment by absorption. And this case has emerged as a result of this circular.
The Central Administrative Tribunal heard a challenge to the circular dated September 20, 2018, regarding its validity. The Tribunal upheld the challenge. In the exercise of its authority under Article 226 the High Court overturned the ruling of the Tribunal.
- Shall the posting of spouses be given enough consideration when considering ICT?
- Shall the needs of the disabled and compassionate grounds be given due consideration when involving the ICT?
CONTENTIONS OF APPELLANT
The appellants who are the inspectors of the Central Excise and Land Customs contended that the decision of Central Board of Excise and Customs for allowing withdrawal of ICTs should be treated as a decision and it loosens the norm that each cadre controlling authority will have a separate cadre. There is no provision for recruitment by absorption. The appellant has attacked the prohibition on ICTs as it is connected to applications on spousal grounds. The circular dated 20 September 2018 banning ICTs violates the provisions as mentioned in Article 14 and Article 16(1) of the Constitution by discriminating between employees, also creates inequality in opportunities to women which is guaranteed under Articles 15(1) and 16(1) of the Constitution. The circular banning ICTs does not meet the rate of proportionality analysis.
ICTs are regulated by executive instructions. The non-inclusivity of Rule 4(ii) is merely a stipulated idea of the over usage in the recruitment rules. As mentioned in the RR, 2016 90% of the cadre’s strength is reserved for direct recruitment. Promotional areas won’t get affected since ICTs are against direct recruitment quotas.
CONTENTIONS OF RESPONDENT
(1) No employee may claim a vested right to transfer or a fundamental right.
Transfer as a requirement for employment is always a subject to the relevant regulations;
(2) Rule 4 of RR 2002, which stipulated that every Commissionerate would have its own cadre, included a specific clause in Rule 4(ii) that permitted absorption from one Commissionerate’s cadre to another; (iii) Rule 5 of RR 2016 specifically states that every CCA will have its own cadre;
(3) A cadre is a specific authorised strength that is indicated in a distinct unit;
(4) There is no legal authority to absorb someone who is not a member of the cadre in the absence of a specific provision in Rule 5 of RR 2016;
(5) The purpose of Rule 4(ii)’s omission during the framing of RR 2016 was to prevent a particular mischief. Employees were abusing the ICT provision, for example, by using it to apply for a promotion and go back to the previous cadre;
(6) If ICTs are allowed without an enabling provision, like Rule 4(ii) of the former RR 2002, the entire idea of a cadre and cadre strength would be thrown out.
The SC allowed the Respondents to review the policy in order to take into account the needs of the disabled, the posting of spouses, and compassionate grounds, even though it upheld the Division Bench of the Kerala High Court’s ruling.
The Bench suggested that the Respondents create a policy for their workers that would uphold fundamental constitutional principles like Article 21 (protection of life and personal liberty) and give proper consideration to the value of preserving family life as a component of an individual’s dignity and a postulate of privacy.
In response to the challenge against the circular based on gender equality and the need for equal treatment of disabled persons, the Bench called for taking into consideration the posting of spouses, the needs of the disabled, and compassionate grounds. The Bench added that the policy must pass the requirements for suitability, necessity, and legitimacy as well as for striking a balance between the values that support a decision-making process grounded in constitutional principles.
Referencing a prior ruling in Lt. Col. Nitisha and Others v. Union of India (2021), the Bench underscored the necessity of implementing policies that guarantee substantive equality of opportunity.
It also mentioned that spousal posting ought to be taken into consideration in accordance with Article 15(3) of the Constitution, which mandates the adoption of special provisions for women and children. The policy should guarantee the right of persons with disabilities to live with dignity, as articulated in the legal case of Reserve Bank of India v. Akshay N. Patel (2021). It further declared that the State’s intervention in an individual’s right to privacy, dignity, and family life must be proportionate.
In an All-India Service, a transfer is first and foremost a service incident.
The requirements of service will determine whether and where an employee should be posted. An employee’s ability to request a transfer or posting of their choosing is not a fundamental right, nor is it a vested right either.
Second, there is no unalienable right to assert a transfer or posting as a result of executive orders and administrative directives pertaining to transfers and postings. The administration’s overarching needs take precedence over the personal convenience of those working in the service.
Third, policies that specify that spouses should be posted at the same station whenever possible are subject to the administration’s requirements.
Fourth, the following sources may contain norms governing the hiring and working conditions of civil service officers: (1) legislation passed by the appropriate legislature; (2) rules promulgated under the provision of Article 309 of the Constitution; and (3) executive orders issued under Article 73 of the Constitution, which applies to civil services under the Union, and Article 162, which applies to civil services under the States.
Fifth, in the event that rules formulated under Article 309 and executive instructions clash, the rules shall take precedence. When a law passed by the relevant legislature and the regulations outlined in Article 309 clash, the law takes precedence.
Sixth, policy decisions made regarding the authority granted to the Union by Article 73 of the Constitution and the States by Article 162 of the Constitution are subject to the recruitment guidelines established by a legislative act or the guidelines under the provision to Article 309 of the Constitution.
The State’s goals in this case are two-fold: first, the possibility of ICT abuse; and second, the distortion that occurs in service and results in a lot of litigation. The State must take into account the value of preserving family life as a component of human dignity and a privacy postulate when creating policies for its own workers. The threshold may be set by the State, dictating how a specific policy should be adjusted to accommodate the needs of preserving family life. Nonetheless, it is inconceivable for the State to claim that it will disregard fundamental constitutional principles, such as the protection of family life, which is an Article 21 incident.
The September 20, 2018, circular has considered what it terms as “exceptional circumstances,” including “extreme compassionate grounds.”
While leaving these categories vague, the circular specifies that transfers on a “loan basis” may be permitted subject to administrative requirements with a tenure of three years, extendable by an additional two years, and permits individual cases to be determined on their merits on a case basis. Although the circular prohibits ICTs that plan to integrate an individual from a different cadre into one’s own, it does allow for a loan-based transfer for a predetermined amount of time. Whether a clause like this needs to be appropriately expanded to cover situations involving (1) spouse postings; (2) disabled people; or (3) compassionate transfers.
This article is written by Druti Dutta, student of Symbiosis Law School, Noida; Intern at Legal Vidhiya.
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