SK NAUSAD RAHAMAN & ORS versus UNION OF INDIA AND ORS

SK NAUSAD RAHAMAN & ORS.

UNION OF INDIA AND ORS.

(Civil Appeal No. 1243 of 2022)

MARCH 10, 2022

[DR. DHANANJAYA Y CHANDRACHUD AND

VIKRAM NATH, JJ.]

Central Excise and Customs Commissionerates Inspector(Central Excise, Preventive Officer and Examiner) Group ‘B’ PostsRecruitment Rules 2016 – r.5 – Central Excise and Land CustomsDepartment Inspector (Group posts) Recruitment Rules 2002 –r.4(ii) – Constitution of India – Article 309, 14-16, 21 – Circularissued by CBIC stating that since 2016 Recruitment Rules (whichsuperseded and substituted 2002 Recruitment Rules) do not containany provision for recruitment by absorption, no application for InterCommissionerate Transfers (ICTs) could be considered after theenforcement of those rules – Validity of the circular challenged –Challenge upheld by CAT – Decision reversed by High Court –Correctness of – Held: High court was justified in concluding that2002 Recruitment Rules contained specific provision for ICTs –There is an absence of provision comparable to r. 4(ii) of 2002Recruitment Rules in 2016 Recruitment Rules – On the contrary, r.5of 2016 Recruitment Rules specifically stipulates that each CadreControlling Authority (CCA) shall have its own separate cadre unlessdirected by the Central Board of Excise and Customs (CBEC) – AnyICT would violate the unique identity of each cadre envisaged inr.5 – Any ICT order would transgress field which is occupied bythe rules which have been framed in terms of the proviso to Article309 – The circular makes it clear that 2016 Recruitment Rules donot have any provision for recruitment by absorption and no ICTapplication could be considered after the coming into force of 2016Recruitment Rules – Transfer is condition of service and it is withinthe powers of the employer to take policy decision either to grantor not to grant ICTs to employees – Power of judicial review cannotbe exercised to interfere with policy decision of that nature –While the judgment of the High Court is upheld, it is left open to therespondents to revisit the policy to accommodate posting of spouses,

Athe needs of the disabled and compassionate grounds – Such anexercise has to be left within the domain of the executive, ensuringin the process that constitutional values which underlie Articles 14,15 and 16 and Article 21 are duly protected – Service Law.

Constitution of India – Art. 21 – Preservation of family Life –BHeld: State while formulating policy for its own employees has togive due consideration to the importance of protecting family lifeas an element of the dignity of the person and postulate of privacybecause preservation of family life is an incident of Art.21 – ServiceLaw.

CConstitution of India – Articles 14, 15 and 16 – Substantiveequality of opportunity– Held: It becomes necessary for theGovernment to adopt policies through which it produces substantiveequality of opportunity as distinct from formal equality for womenin the workplace – The true aim of achieving substantive equalitymust be fulfilled by the State in recognizing the persistent patternsDof discrimination against women once they are in the work place –Therefore, the State, both in its role as model employer as well asan institution which is subject to constitutional norms, must bear inmind the fundamental right to substantive equality when it craftsthe policy even for its own employees – Service Law.

EService Law – Transfer Policy – Rights of Persons withDisabilities Act, 2016 – Held: It is statutory mandate forrecognizing the principle of reasonable accommodation for thedisabled members of society – The formulation of policy therefore,must take into account the mandate which Parliament imposes asan intrinsic element of the right of the disabled to live with dignity.F

Constitution of India – Judicial review – Policy Making –Held: Court in the exercise of judicial review cannot direct theexecutive to frame particular policy - Yet, the legitimacy of policycan be assessed on the touchstone of constitutional parameters –Service Law.G

Disposing of the appeals, the Court

HELD: 1.1 Certain basic precepts of service jurisprudencemust be borne in mind:

i. First and foremost, transfer in an All India Service is anHincident of service. Whether, and if so where, an employee should

be posted are matters which are governed by the exigencies ofservice. An employee has no fundamental right or, for that matter,a vested right to claim transfer or posting of their choice.

ii. Second, executive instructions and administrativedirections concerning transfers and postings do not confer anindefeasible right to claim transfer or posting. Individualconvenience of persons who are employed in the service issubject to the overarching needs of the administration.

iii. Third, policies which stipulate that the posting of spousesshould be preferably, and to the extent practicable, at the samestation are subject to the requirement of the administration.

iv. Fourth, norms applicable to the recruitment andconditions of service of officers belonging to the civil servicescan be stipulated in:

a. law enacted by the competent legislature;

b. Rules made under the proviso to Article 309 of theConstitution; and

c. Executive instructions issued under Article 73 of theConstitution, in the case of civil services under the Union andArticle 162, in the case of civil services under the States.

v. Fifth, where there is conflict between executiveinstructions and rules framed under Article 309, the rules mustprevail. In the event of conflict between the rules framed underArticle 309 and law made by the appropriate legislature, thelaw prevails. Where the rules are skeletal or in situation whenthere is gap in the rules, executive instructions can supplementwhat is stated in the rules.

vi. Sixth, policy decision taken in terms of the powerconferred under Article 73 of the Constitution on the Union andArticle 162 on the States is subservient to the recruitment rulesthat have been framed under legislative enactment or the rulesunder the proviso to Article 309 of the Constitution. [Paras 23 -29][621-A-D; 622-F-G; 623-A-C]

1.2 RR 2002 contained in Rule 4 “Special Provision”.Rule 4(i) envisaged that each Commissionerate shall have its

Aown separate cadre unless otherwise directed by the CBEC. Rule4(ii) commenced with non-obstante provision in terms of which,the jurisdictional Chief Commissionerate of Central Excise wasempowered to order that any post in the Commissionerate maybe filled up by absorption of persons holding the same orcomparable post belonging to the cadre of anotherBCommissionerate under the CBEC. The non-obstante provisionwas necessary because Rule 4(i) contained mandate for eachCommissionerate to have its own separate cadre unless theCBEC directed otherwise. The plain consequence of eachCommissionerate having its own cadre was to preclude theCappointment of person belonging to the cadre of another Comrelied on missionerate by way of absorption. The bar on theabsorption of persons from outside the cadre was lifted as aconsequence of Rule 4(ii), which by embodying non-obstanteprovision allowed the jurisdictional Chief Commissionerate toallow post in the Commissionerate to be filled by persons holdingDthe same or comparable post but belonging to the cadre of anotherCommissionerate. In RR 2016 as notified, Rule 5 states that eachCCA shall have its own separate cadre, unless otherwise directedby the CBEC. The ‘Commissionerate’ in the erstwhile Rule 4(ii)was substituted by the expression “Cadre Controlling Authority”Ein Rule 5 of RR 2016. The clear intent of Rule 5 is that therewould be separate cadre for each CCA and only CBEC isentrusted with the authority to direct otherwise. Hence only CBECcould direct the constitution of joint cadre for more than oneCommissionerate. The enabling power which was conferred onjurisdictional Chief Commissionerate in Rule 4(ii) of RR 2002 isFconspicuously absent in Rule 5 of RR 2016. The centralsubmission which has been urged on behalf of the appellant isthat since in RR 2016 there is no provision corresponding toRule 4(ii) of RR 2002, there is silence on the subject of theabsorption of persons belonging to the cadre of anotherGCommissionerate and this silence or gap can be supplementedby executive instructions. The executive instructions, it wassubmitted, would be those which are embodied in the OMs whichhave been issued by DoPT or the instructions which have beenissued by the Department of Revenue from time to time. Thereis fundamental fallacy in the submission which has been urgedH

on behalf of the appellants. Administrative instructions, it is well-settled, can supplement rules which are framed under the provisoto Article 309 of the Constitution in manner which does notlead to any inconsistencies. Executive instructions may fill upthe gaps in the rules. But supplementing the exercise of the rulemaking power with the aid of administrative or executiveinstructions is distinct from taking the aid of administrativeinstructions contrary to the express provision or the necessaryintendment of the rules which have been framed under Article309. RR 2016 have been framed under the proviso to Article309. Rule 5 of RR 2016 contains specific prescription that eachCCA shall have its own separate cadre. The absence of provisionfor filling up post in the Commissionerate by absorption ofpersons belonging to the cadre of another Commissionerateclearly indicates that the cadre is treated as posting unit andthere is no occasion to absorb person from outside the cadrewho holds similar or comparable post. [Paras 30-32][623-C-H;624-A-F]1.3 Rule 5 of RR 2016 postulates that each CCA has aseparate cadre and does not contain provision for bringing in,by way of absorption, persons from outside the cadre. Inductingpersons from outside the cadre by absorption requires specificprovision in the subordinate legislation for the simple reason thatthe concept of cadre would otherwise militate against bringingin those outside the cadre. That is the reason why Rule 4(ii) ofthe erstwhile RR 2002 contained specific provision to this effect.That provision has however not been included when RR 2016were framed. If the authority entrusted with the power of framingrules under Article 309 of the Constitution did so on the groundthat the provision was subject to misuse and was contrary to theinterests of the administration, no employee can assert vestedright to claim an ICT. [Para 34][626-C-E]

1.4 Undoubtedly, while all matters pertaining to the CBECand CBDT are under the domain of the Department of Revenue,there has to be harmonious construction with the subjects whichare assigned to the DoPT. In fact, the need for harmoniousreading is emphasized, as we have seen earlier, in Rule 4(4) of

ABC

AThe Government of India (Transaction of Business) Rules 1961,which requires the advice of DoPT to be sought on methods ofrecruitment and conditions of service and on the interpretationof existing orders relating to recruitment and conditions ofservice. The executive instructions which have been issued bythe DoPT cannot however prevail over the specific provisionsBwhich are contained in the rules which have been framed underthe proviso to Article 309 of the Constitution. Faced with thisdifficulty, the appellants have sought to urge that Rule 4(ii) of RR2002 was not included while RR 2016 were being framed on theadvice of the DoPT on the ground that such provision isCgenerally not made in the recruitment rules. This submission isbased on the disclosure made by the Department of Revenueunder the Right to Information Act 2005 on 3 July 2018. Theattachment with the RTI disclosure contains the tabulation whichindicates that the proposal which was under consideration wasthe provision for Inter-Commissionerate deputation withoutDdeputation allowance. This was suggested for deletion. DoPTobserved that such provision is generally not made in therecruitment rules and thus, the proposal may be agreed to. Butapart from this, the Department of Revenue did not deem it fit toadopt the specific provision which was contained in Rule 4(ii) ofERR 2002 under which absorption of persons from other cadreswas envisaged at the Commissionerate level, when Rule 5 of RR2016 was framed. In the absence of specific provision to thateffect, an employee from outside the cadre under the control of aCCA cannot claim an ICT based on executive instructions. Theexecutive instructions which have been issued by DoPT in theFform of OMs will not prevail over RR 2016 which have beenframed under the proviso to Article 309. Similarly, the instructionswhich were issued by the Department of Revenue on 27 March2009, relaxing the ban on ICT, which was imposed on 19 February2004 and the subsequent instructions dated 27 October 2011Gwere issued at the time when RR 2016 were yet to be framed.These instructions will not govern or prevail when the regimeenvisaged under RR 2016 came into force. [Paras 38, 39][630-D-G; 631-F-H; 632-A-C]

1.5 The High Court was justified in coming to theHconclusion that: (i) RR 2002 contained specific provision for

ICTs; (ii) There is an absence of provision comparable to Rule4(ii) of RR 2002 in RR 2016; (iii) On the contrary, Rule 5 of RR2016 specifically stipulates that each CCA shall have its ownseparate cadre unless directed by the CBEC; (iv) Any ICT wouldviolate the unique identity of each cadre envisaged in Rule 5; (v)Any ICT order would transgress field which is occupied by therules which have been framed in terms of the proviso to Article309 of the Constitution; (vi) The circular dated 20 September2018 makes it absolutely clear that RR 2016 do not have anyprovision for recruitment by absorption and no ICT applicationcould be considered after the coming into force of RR 2016; (vii)Transfer is condition of service and it is within the powers ofthe employer to take policy decision either to grant or not togrant ICTs to employees; and (viii) The power of judicial reviewcannot be exercised to interfere with policy decision of thatnature. [Para 42][634-C-G]

1.6 The realm of policy making while determining theconditions of service of its employees is entrusted to the Unionfor persons belonging to the Central Civil Services and to theStates for persons belonging to their civil services. This Court inthe exercise of judicial review cannot direct the executive to framea particular policy. Yet, the legitimacy of policy can be assessedon the touchstone of constitutional parameters. Moreover, shortof testing the validity of policy on constitutional parameters,judicial review can certainly extend to requiring the State to takeinto consideration constitutional values when it frames policies.The State, consistent with the mandate of Part III of theConstitution, must take into consideration constitutional valueswhile designing its policy in manner which enforces andimplement those values. [Para 43][634-G-H; 635-A-B]

1.7 This Court has spoken about the systemic discriminationon account of gender at the workplace which encapsulates thepatriarchal construction that permeates all aspects of woman’sbeing from the outset, including reproduction, sexuality andprivate choices, within an unjust structure. The OMs which havebeen issued by DoPT from time to time recognized that inproviding equality and equal opportunity to women in the

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Aworkplace of the State, it becomes necessary for the Governmentto adopt policies through which it produces substantive equalityof opportunity as distinct from formal equality for women in theworkplace. Women are subject to patriarchal mindset thatregards them as primary caregivers and homemakers and thus,they are burdened with an unequal share of family responsibilities.BMeasures to ensure substantive equality for women factor in notonly those disadvantages which operate to restrict access to theworkplace but equally those which continue to operate once awoman has gained access to the workplace. The impact of genderin producing unequal outcomes continues to operate beyond theCpoint of access. The true aim of achieving substantive equalitymust be fulfilled by the State in recognizing the persistent patternsof discrimination against women once they are in the work place.The DoPT OMs dated 3 April 1986, 23 August 2004, 8 July 2009and 30 September 2009 recognised the impact of underlying social

structures which bear upon the lives of women in the work placeDand produce disparate outcomes coupled with or even withoutan intent to discriminate. The provision which has been made forspousal posting is in that sense fundamentally grounded on theneed to adopt special provisions for women which are recognizedby Article 15(3) of the Constitution. The manner in which special

Eprovision should be adopted by the State is policy choice whichhas to be exercised after balancing out constitutional values andthe needs of the administration. But there can be no manner ofdoubt that the State, both in its role as model employer as wellas an institution which is subject to constitutional norms, mustbear in mind the fundamental right to substantive equality whenFit crafts the policy even for its own employees. [Para 48][637-D-H; 638-A-C]

1.8 The Rights of Persons with Disabilities Act 2016 is astatutory mandate for recognizing the principle of reasonableaccommodation for the disabled members of society. TheGformulation of policy therefore, must take into account themandate which Parliament imposes as an intrinsic element of theright of the disabled to live with dignity. [Para 49][638-C-D; 639-A]

Vikash Kumar v. Union Public Service Commission andHOthers(2021) 5 SCC 370; Avni Prakash v. National

Testing Agency and Others 2021 SCC OnLine SC 1112;Ravinder Kumar Dhariwal and Another v. Union ofIndia and Others2021 SCC OnLine SC 1293;AkshayN. Patel v. Reserve Bank of India2021 SCC OnLineSC 1180 – relied on.

1.9 The State in the present case has been guided by twoobjectives: first, the potential for abuse of ICTs and second, thedistortion which is caused in service leading to plethora oflitigation. The State while formulating policy for its ownemployees has to give due consideration to the importance ofprotecting family life as an element of the dignity of the personand postulate of privacy. How particular policy should bemodulated to take into account the necessities of maintainingfamily life may be left at the threshold to be determined by theState. In crafting its policy however the State cannot be heard tosay that it will be oblivious to basic constitutional values, includingthe preservation of family life which is an incident of Article 21.[Para 51][639-D-E]

1.10 The circular dated 20 September 2018 has taken intoaccount, what it describes “exceptional circumstances” such as“extreme compassionate grounds”. Leaving these categoriesundefined, the circular allows for individual cases to be determinedon their merits on case by case basis, while prescribing thattransfers on “loan basis” may be allowed subject toadministrative requirements with tenure of three years,extendable by further period of two years. While proscribingICTs which envisage absorption into cadre of person from adistinct cadre, the circular permits transfer for stipulated periodon loan basis. Whether such provision should be suitablyenhanced to specifically include cases involving (i) postings ofspouses; (ii) disabled persons; or (iii) compassionate transfers,is matter which should be considered at policy level by theBoard.

In considering whether any modification of the policy isnecessary, they must bear in mind the need for proportionalrelationship between the objects of the policy and the meanswhich are adopted to implement it. The policy above all has to

BCD

Afulfill the test of legitimacy, suitability, necessity and of balancingthe values which underlie decision making process informedby constitutional values. Hence while we uphold the judgment ofthe Division Bench of the Kerala High Court, we leave it open tothe respondents to revisit the policy to accommodate posting ofspouses, the needs of the disabled and compassionate grounds.BSuch an exercise has to be left within the domain of the executive,ensuring in the process that constitutional values which underlieArticles 14, 15 and 16 and Article 21 of the Constitution are dulyprotected. [Paras 52, 53][639-F-H; 640-A-D]Prabir Banerjee v. Union of India and Others(2007) 8CSCC 793 : [2007] 10 SCR 694 – distinguished.

Bank of India v. Jagjit Singh Mehta (1992) 1 SCC 306: [1991] 2 Suppl. SCR 492;Union of India v. SL Abbas(1993) 4 SCC 357 : [1993] 3 SCR 427; Lt. Col. Nitishaand Others v. Union of India2021 SCC Online SCD261 – relied on.

Union of India and Others v. Somasundaram Viswanathand Others,(1989) 1 SCC 175 : [1988] 3 Suppl. SCR146;State of Orissa and Others v. Prasana KumarSahoo(2007) 15 SCC 129 : [2007] 5 SCR 697; JSEYadav v. State of UP. (2011) 6 SCC 570 : [2011] 5 SCR460;Jarnail Singh v. Lacchmi Narain Gupta2022 SCCOnLine SC 96 – referred to.

Case Law Reference

From the Judgment and Order dated 10.04.2019 of the High Courtof Kerala at Ernakulam in O.P.(CAT) No.190 of 2018.

With

Civil Appeal Nos.1246-1248, 1244-1245, 1249, 1250, 1251-1265,1266 and 1267 of 2022.

K. M. Nataraj, ASG, Maninder Singh, Rana Mukherjee, P. N.Ravindran, Narender Hooda, Ms. Vibha Datta Makhija, Vikas Singh, Sr.Advs., Umakant Misra, Sibo Sankar Mishra, Yelamanchili Shiva SantoshKumar, Aditya Bhat, Tarun Gupta, Rishi Kapoor, Ashish Pandey, KapishSeth, Prateek Rai, Ashutosh Bhardwaj, Akanshya Rai, Ms. Saksha Jha,Sandeep Sharma, Vishwa Pal Singh, Mukesh Kumar Maroria, Mohd.Akhil, Anulalp Jain, P. V. Yogeswaran, Abhishek Kumar, Shailesh Madiyal,Ronak Karanpuria, Shyam Agarwal, Yashraj Singh Deora, Ms. PrakritiRoy, Advs. for the appearing parties.

The Judgment of the Court was delivered by

DR. DHANANJAYA Y CHANDRACHUD, J.

AFacts ........................................................................4*D

BRelevant circulars and notifications ................ 10*

B.1 .....................Executive Instructions issued by

DoPT .................................................................... 10*

B.2 Circulars issued by Department of Revenue,

Ministry of Finance ............................................ 14*

CSubmissions......................................................... 19*

DAnalysis................................................................ 26*

Facts

1. Division Bench of the High Court of Kerala dealt with abatch of petitions under Article 226 of the Constitution challenging theorders of the Central Administrative Tribunal on the issue of thewithdrawal of Inter-Commissionerate Transfers[1]. The High Court hascome to the conclusion that the Central Excise and CustomsCommissionerates Inspector (Central Excise, Preventive Officer andExaminer) Group ‘B’ Posts Recruitment Rules 2016[2 ]do not contain anyprovision for ICTs and, on the contrary, stipulate that each CadreControlling Authority[3] will have its own separate cadre, unless otherwise

1 “ICT”2 “Recruitment Rules 2016” or “RR 2016”3 “CCA”*Ed. Note : Pagination is as per the original Judgment.

Adirected by the Central Board of Excise and Customs .The High Courtheld that ICTs would violate the unique identity of each cadre envisagedunder Rule 5 of RR 2016 and hence the circular withdrawing ICTs is notinvalid. The judgment of the High Court has given rise to the batch ofcivil appeals.

B2. The appellants are Inspectors of the Central Excise and LandCustoms or, as the case may be, Goods and Services Tax Administration,who were allocated to different CCAs. Section 4 of the Customs Act1962 provides that the Central Board of Indirect Taxes and Customs[4]may appoint such persons as it thinks fit to be officers of customs. Asimilar provision is contained in Section 4 of the Central Goods andCServices Tax Act 2017[5], which states that:

“4. (1) The Board may, in addition to the officers as may be notifiedby the Government under section 3, appoint such persons as itmay think fit to be the officers under this Act.

(2) Without prejudice to the provisions of sub-section (1), the BoardDmay, by order, authorise any officer referred to in clauses (a) to(h) of section 3 to appoint officers of central tax below the rankof Assistant Commissioner of central tax for the administration ofthis Act.”

The expression ‘Board’ is defined in Section 2(16) of the CGSTEAct as the Central Board of Excise and Customs[6] constituted under theCentral Boards of Revenue Act 1963.

3. On 29 November 2002, the Central Excise and Land CustomsDepartment Inspector (Group posts) Recruitment Rules 2002[7] werenotified. RR 2002 trace the source of power to the proviso to Article 309of the Constitution. Rule 4 was in the following terms:F“4. Special provision. - (i) Each Commissionerate shall have itsown separate cadre unless otherwise directed by the Central Boardof Excise and Customs[*]

(ii) Notwithstanding anything contained in sub-rule (1), thejurisdictional Chief Commissioner of Central Excise may,if heGconsiders to be necessary or expedient in the public interest so to

4 “CBIC”

5 “CGST Act”

6 “CBEC”

7 “Recruitment Rules 2002” or “RR 2002”

H* Now referred to as Centra Board of Indirect Taxes and Customs (CBIC)

do and subject to such conditions as he may determine havingregard to the circumstances of the case and for reasons to berecorded in writing, order any post in the Commissionerate ofCentral Excise to be filled by absorption of persons holding thesame or comparable posts but belonging to the cadre anotherCommissionerate or Directorate under the Central Board of Exciseand Customs.”

4. RR 2002 were superseded and substituted by RR 2016. Rule 5of RR 2016 provides that:

“5.Special Provision.– Each Cadre Controlling Authority (CCA)shall have its own separate cadre, unless otherwise directed bythe Central Board of Excise and Customs.”

5. comparison of Rule 4 of RR 2002 with Rule 5 of RR 2016would 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 separatecadre, unless otherwise directed by the CBIC. Rule 5 of RR Rules 2016substitutes the expression “CCA” for the expression “Commissionerate”.Significantly, Rule 4 (ii) of RR 2002 does not find place in Rule 5 of RR2016. Rule 4(ii) contained non-obstante provision under which ajurisdictional Chief Commissioner of Central Excise had enabling powerto allow the absorption of persons from another Commissionerate underthe CBIC in the public interest, and subject to conditions as would bedetermined. Rule 4(ii) of RR 2002 which contains an express provisionfor ICTs was not incorporated in Rule 5 when RR 2016 were notified.

6. On 20 September 2018, the CBIC issued circular[8] statingthat since RR 2016 do not contain any provision for recruitment byabsorption, no application for ICTs could be considered after theenforcement of those rules. The circular forms the genesis of the disputein the present case and is hence extracted below:

“CIRCULAR

Subject: Instructions in respect of Inter CommissionerateTransfer (ICT) in the light of new Recruitment Rules, 2016-regarding.

These instructions are being issued in terms of “Central Exciseand Customs Commissionerate Inspector (Central Excise,Preventive Officer and Examiner) Group PostsRecruitment Rules, 2016”

8 F. No. A-22015/117/2016-Ad.IIIA dated 20 September 2018

2. Any executive instruction in contravention of the RecruitmentRules will be void in accordance with the ratio of the judgment ofthe Hon’ble Supreme Court of India in the case of UOI & othersVs. Somasundran1 Viswanath & Ors. dated 22.09.1988 (1990SC 166 (10) which held as follows: -

B(1) “It is well settled that the norms regarding recruitmentand promotion of officers belonging to the Civil Services canbe laid down either by law made by appropriate Legislatureor by rules made under the proviso to Article 309 of theConstitution of India or by means of executive instructionsissued under article 73 of the Constitution of India in theCcase of Civil Services under the Union of India and underArticle 162 of the constitution of India in the case of CivilServices under the State Governments. If there is conflictbetween the executive instructions and the rules made underthe proviso to Article 309 of the Constitution of India, theDrules made under proviso to Article 309 of the Constitutionof India prevail.” Thus, the Recruitment Rules formulated underArticle 309 will prevail over any executive instruction that may becontradictory to it”

3. It has come to the notice of this office that various CCAs(Cadre Control Authorities) are taking divergent stands on theissue of Inter Commissionerate Transfers (!CT) of officers in thecadre of Inspector on the basis of guidelines issued vide F.No. A22015/23/2011-AD IIIA dated 27.10.2011. The issue of InterCommissionerate Transfer under “Central Excise and CustomsCommissionerate Inspector (Central Excise, PreventiveOfficer and Examiner) Group Posts Recruitment Rules,2016” has been examined by the Board and following has beenobserved.

4. The ICT applications were being considered under Rule 4 oferstwhile Central Excise and Land Customs Department Inspector(Group ‘C’ Posts) Recruitment Rules, 2002 which stated that:

“Rule 4. Special provision. - (i) Each Cadre controllingAuthority (CCA) shall have its own separate cadre unlessotherwise directed by the Central Board of Excise and Customs

(ii) Notwithstanding anything contained in sub-rule (1), theHjurisdictional Chief Commissioner of Central Excise may, if

he considers to be necessary or expedient in the public interestso to do and subject to such conditions as he may determinehaving regard to the circumstances of the case and for reasonsto be recorded in writing, order any post in theCommissionerate of Central Excise to be filled by absorptionof persons holding the same or comparable posts butbelonging to the cadre another Commissionerate ofDirectorate under the Central Board of Excise and Customs.

However, under Recruitment Rules, 2016 the correspondingprovision containing the special provision under Rule 5 providesthat “Each Cadre Controlling Authority (CCA) shall have itsown separate cadre unless otherwise directed by the CentralBoard of Excise and Customs.”

5. From the above, it is clear that Recruitment Rules, 2016 do nothave any provision for recruitment by absorption and accordingly,no ICT application can be considered after coming into force ofthe Recruitment Rules, 2016.

6. In exceptional circumstances depending upon the merit of eachcase such as extreme compassionate grounds, such transfers maybe allowed on case to case on loan basis alone keeping in viewthe administrative requirements of transferee and transferredCadre Controlling Authority. However, maximum tenure of suchtransfer will be three years and can be extended with the specificapproval of the Board for further period of two years dependingupon the administrative requirement. It is further reiterated thatthe officials transferred on the loan basis shall not be consideredfor promotion unless they re-join their parent cadre.7. Now, therefore, it is hereby clarified that an office order forInter Commissionerate Transfer in the Grade of Inspectors issuedon or after 26.12.2016 (i.e. from the date of enactment of RR,2016) will be non-est and accordingly any officer who has joinedanother zone in pursuance of such order shall be treated as adeemed case on loan basis w.e.f. 26.12.2016. These officersshall be on deemed loan till 31.03.2019, on which date the officersshall stand relieved and be reverted to their parent Zones. […]”

7. While clarifying that under RR 2016, there is no specific provisionallowing for ICTs, the circular notes that Rule 5 stipulates that each

ABC

ACCA will have its own separate cadre, unless otherwise directed by theBoard. Rule 5 has been construed to mean that given that each CCA isto have its own cadre, ICTs, which involve transfer from oneCommissionerate to another would no longer be permissible andaccordingly all orders for such transfers which were issued on or after26 December 2016 (the date on which RR 2016 were notified) would beBnon-est. The circular, however, allows that in exceptional circumstances,depending upon the merits of each case and on extreme compassionategrounds, such transfers may be allowed on ‘case to case onloan basis’keeping in view the administrative requirements of the transferee andthe transferred CCAs. However, the maximum tenure of such transferChas been fixed as three years which can be extended by further periodof two years.

8. The validity of the circular dated 20 September 2018 waschallenged before the Central Administrative Tribunal. The challengewas upheld by the Tribunal. The High Court, in the exercise of itsDjurisdiction under Article 226, reversed the decision of the Tribunal.

Relevant circulars and notifications

9. In order to appreciate the controversy in its entirety, it would benecessary to deal with the circulars and office memoranda[9] which haveheld the field in the past. There are two sets of executive instructions: (i)the first set concerns those instructions which were issued by theEDepartment of Personnel and Training[10 ]and (ii) the second set concernsexecutive instructions which were issued by the Department of Revenue.

B.1 Executive Instructions issued by DoPT

10. The following executive instructions have been issued by theDoPT regarding ICTs:F

(i)On 3 April 1986, an OM[11] was issued by DoPT. The subjectof the OM was: “Posting of husband and wife at the samestation”. The OM dealt with the posting of employees ofthe Central Government and underscored that withinadministrative constraints, it was the policy of theGGovernment that spouses should be posted at the samestation as far as possible. Paragraph 2 of the circularindicated its rationale in the following terms.

10 “DoPT”H11 No. 28036/7/86-Estt(A)

“2.The Govt. of India have given the utmost importanceto the enhancement of women’s status in all sectors andall walks of life. Strategies and policies are beingformulated and implemented by different Ministries ofthe Central Govt. to achieve this end. It is also considerednecessary to have policy which can enable womenemployed under the Govt and the public sector andundertaking to discharge their responsibilities as wife/mother on the one hand and productions workers on theother, more-effectively.It is the policy of the Govt. thatas far as possible and within the constraints ofadministrative feasibility, the husband and wife shouldbe posted at the same station to enable them to lead anormal family life and to ensure the education andwelfare of their children.”

Paragraph 4 of the circular envisaged various situations, dependingupon the service to which spouses may belong and illustrated the followingeventualities:

“4. The classes of cases that may arise, and the guidelines fordealing with each class of case, are given below: -

(i) Where the spouse belong to the same All India Service ortwo of the All India Service namely IAS, IPSA and IndianForest Services (Group-A).

(ii) Where one spouse belongs to one of the All India Serviceand the other spouse belongs to one of the Central Services: -

The cadre controlling authority of the Central Service maypost the officer to the station or if there is no post in that stationto the State where the other spouse belonging to the All IndiaService is posted.

(iii) Where the spouse belong to the same central service:

The cadre controlling authority may post the spouses to thesame station.

(iv) Where the spouse belongs to one Central Service and theother spouse belongs to another Central Service: -

The spouse with the longer service at station may apply tothe appropriate cadre controlling authority and the said authority

may post the said officer to the station, or if there is no post inthat station to the State where the other spouse belonging tothe other central service is posted.

(v)Where one spouse belongs to an All India Service and theother spouse belongs to public sector:

The spouse employed under the public sector undertaking mayapply to the competent authority and said authority may postthe said officer to the station, or if there is no post under thePSU in that station, to the State where the other spouse isposted.

(vi) Where one spouse belongs to central service and otherspouse belongs to PSU:

The spouse employed under the PSU may apply to thecompetent authority and the said authority may post the officerto the station, to the State where the other spouse is posted.If,however, the request cannot be granted because the PSU hasno post in the said station/State, then the spouse belonging tothe central services may apply to the appropriate cadrecontrolling authority and the said authority may post the saidofficer to the station or if there is no post in that station, to thestate where the spouse employed under PSU is posted.

(vii) Where one spouse is employed under the Central Govt.and the other spouse is employed under the State Govt.:

The spouse employed under the central Govt. may apply tothe competent authority may post the said officer to the stationFor if there is no post in that station to the State where the otherspouse posted.”

While recognising that the above illustrations would not coverevery case, the OM envisaged that each case not covered by the guidelineswould be considered bearing in mind the underlying object of ensuringGthat spouses are, as far as possible and within the constraints ofadministrative convenience, posted at the same station.

(ii)An OM[12] dated 29 May 1986 was issued by the DoPTwhich dealt with the seniority of the persons absorbed afterbeing on deputation;

H12 No. 20020/7/80-Estt.D

(iii)An OM[13] was issued on 12 June 1997 which dealt with theA“posting of husband and wife at the same station” after thereport of the Fifth Central Pay Commission. The OMreiterated the guidelines contained in the earlier OM dated3 April 1986 for deciding requests for posting of spouses atthe same station and envisaged that it should be ensuredBthat such posting is invariably done until the children attainthe age of 10 years if vacancy exists in the organizationat the same station and no administrative problem arisesasa consequence;(iv)By an OM[14 ]dated 23 August 2004, it was noted that theinstructions contained in the OMs dated 3 April 1986 and12 June 1997 were not being followed in letter and spirit bythe Ministries and Departments even in the absence ofadministrative constraints. Accordingly, the OM sought toimpress upon all Ministries/Departments “that the guidelineslaid down in the aforesaid office memorandum are strictlyfollowed while deciding the request for posting of husbandand wife at the same station”. The OM further stated that“the policy of the Government has been to give utmostimportance to the enhancement of women’s status in allsectors and all walks of life”;

(v)On 8 July 2009, an OM[15] was issued indicating that theUnion Government had taken several steps towards“advancement, development and empowerment of women”,while being conscious of the fact that “women employeesplay positive role in their families as well as at theirworkplace”. The annexure to the OM summarised thepolicies which have been formulated by the UnionGovernment towards achieving this objective and amongthem was provision for posting of spouses at the samestation.In that context, the annexure stated:

“Posting of husband & wife at the same station.

The Govt. of India has issued detailed instructions to itsoffices to ensure the posting of the husband and wife at

13 No. 28034/2/97-Estt.(A) New Delhi

14 No.28034/23/2004-Estt.(A)

15 No.13018/4/2009-Estt.(L)

the same station so as to enable them to lead normalfamily life and to ensure the education and welfare oftheir children (O.M. No.28034/2/27-Estt-A dated3.4.1986 & 12.6.1997).

To facilitate posting of couples in the same station, itBhas been approved that in case of woman officer whosehusband is posted under the Govt. of India, the ‘coolingoff’ period may be valued up to six months so that shemay get posting at the station where her husband isposted.”

C(vi)By an OM[16] dated 30 September 2009, the earlier guidelineswere consolidated and it was stipulated that when bothspouses are in the Central Government or work in the sameDepartment and if posts are available, they must invariablybe posted together. Paragraph 5 of the OM stated that:

D“5. Complaints are sometimes received that even if postsare available in the station of posting of the spouse, theadministrative authorities do not accommodate theemployees citing administrative reasons. In all suchcases, the cadre controlling authority should strive topost the employee at the station of the spouse and inEcase of inability to do so, specific reasons, therefor, maybe communicated to the employee.”

(vii)By an OM[17] dated 31 December 2010, the guidelines werenotified for amendments in or for relaxation of therecruitment rules.FB.2 Circulars issued by Department of Revenue, Ministry ofFinance

11. The following circulars have been issued by the Departmentof Revenue regarding ICTs:G(i)On 13 May 1998, circular[18 ]was issued by the Ministry ofRevenue to all the Chief Commissioners of Customs andCentral Excise on the subject of Inter-CommissionerateTransfers. The circular stipulated that:

16 No.F.No.28034/9/2009-Estt.(A)

17 No. AB.14017/48/2010-Estt..(RR)H18 No.F.No.22015/11/98 Ad. IIIA

“The issue of Inter Commissionerate Transfer has beenconsidered by Board and it has been decided that forthe present only 75% portion out of the total DP quotavacancies should be filled up by Inter Commissiontransfer by CCE, Delhi.

2.It has also been decided that committee may beformed which may decide on inter Commissioneratetransfer after considering the matter in totally butgenerally on first come first salary basis. The committeecan also consider the hardship cases, like couple cases,“Medical Emergency Cases” and other cases like “Only

s[o]n separate from parents” on merits.”

(ii)On 16 January 2003, circular[19] was issued by theDepartment of Revenue to the:

(a) Chief Commissioners of Central Excise;

(b) Chief Commissioners of Customs; and

(c) Commissioners of Central Excise/Customs.

The circular notified that the Board had decided that all thepowers which were being exercised by the respectiveCommissioners as CCAs would henceforth be exercisedby the respective Chief Commissioners. However, it wasstipulated that there would be no merger or bifurcation ofthe existing cadres and the functions of the each CCA wouldbe exercised separately and independently by the ChiefCommissioner. Hence, it was stipulated that this in effectwould imply that the independent entity of each cadre shallremain intact and unchanged.

(iii)On 19 February 2004, the Department of Revenueaddressed communication[20] to all Chief Commissionersand Commissioners of Customs and Central Excise amongstothers for the discontinuance of ICTs. The circular notedthat ICTs had been taking place for Group ‘B’, ‘C’ and ‘D’employees on compassionate grounds. However, ICTscaused administrative difficulties resulting in protractedlitigation. The matter was reviewed by the Board and itwas directed that:

19 No. F.No.A-11013/04/2002-Ad.IV

20 F. No.A.22015/3/2004-ad.IIIA

A“Accordingly, in supersession of all the previous instructionsissued on the subject in the past, it has been decided thathenceforth no inter-Commissionerate transfer shall beallowed for any Group B, C, employee. Instead, inexceptional circumstances depending upon the merits ofeach case where it is considered necessary to accept suchBrequests on extreme compassionate grounds, such transfersshall be allowed on deputation basis for period of threeyears subject to the approval of the transferor and transfereecadre controlling authorities. Further extension of deputationperiod can be made up to one year by the CommissionerCand for further period of one year by Chief Commissionersconcerned on mutually agree[d] basis. Such transfers shallbe with the specific condition that no deputation allowanceshall be admissible for deputation period including extendedperiod, if any. Wherever required, necessary amendmentsin Recruitment Rules are under approval and shall be issuedDsubsequently.”

(iv)A circular[21] was issued on 27 March 2009 by the CBEC bywhich the earlier ban on ICTs was partially relaxed in orderto facilitate the posting of spouses at the same station “inline with the instructions of the DoPT”. The circularspecifically referred to the DoPT OMs dated 3 April 1986,12 June 1997 and 23 August 2004. The circular, insofar asis material, is extracted below:

“I am directed to refer to the Board’s CircularF.No.22015/3/2014-Ad.IIIA dated 19.02.2004, asmodified vide letter dated 09.03.2004, vide which theinter-Commissionerate Transfers of Groups-B,C andD officers were banned. Although the term used was‘Inter-Commissionerate Transfers’, the ban wasactually confined to transfers from one CadreControlling Authority to another. There was no banon transfers amongst the Commissionerates havingcommon cadre, where no loss of seniority wasinvolved, as was clarified vide letter dated 09.03.2004referred to above.

H21 F.No.A.22015/19/2006-Ad.IIIA

2. However, it has been pointed out that theinstructions of the DoPT (contained in their OMNo.28034/7/86-Estt(A) dated 03.04.1986 as amendedby OM dated 12.06.1997 and 23.08.2004), providethat “a husband and wife are, as far as possible, andwithin the constraints of administrative convenience,posted at the same station”.

3. The Board deliberated upon the issue in its meetingheld on 04.03.2009 and have decided to partially relaxthe earlier instructions of the Board as referred toabove, in order to facilitate posting of husband andwife at the same station in line with the instructionsof the DoPT. Accordingly, it has now been decidedto permit inter-Commissionerate transfers of GroupB, and Officers beyond the Commissionerateshaving common cadres, i.e. from one CadreControlling Authority to another, without any loss ofseniority, subject to the following conditions: -

(a) The transfer/change of cadre shall be permissibleonly in cases where the spouse is employed witheither the Central Government or State Governmentor Public Sector Undertaking of the CentralGovernment/ State Government.

(b) The option for change of cadre must be exercisedwithin six months of the initial appointment of theofficer, if the officer is married at the time of suchinitial appointment. In case of marriage taking placesubsequent to the initial appointment, the option mustbe exercised within six months of the marriage.Further, as far as the past cases are concerned, theoption must be exercised within six months of theissue of these instructions.

4. The procedure for change of cadre will be sameas stipulated in the Board’s instructions dated19.02.2004 referred to above i.e. the change of cadrewill take place with the approval of the transferorand transferee Cadre Controlling Authorities. There

will be no need to seek approval of the Boards forthis purpose.”

(v)On 27 October 2011, circular[22] was issued by the CBECnoting that the ban on ICTs which was imposed by theearlier communication dated 19 February 2004 for GroupB, and employees, was subsequently relaxed in phasesto cover cases involving spouses, compassionateappointments and physically handicapped employees bycirculars dated 27 March 2009, 29 July 2009 and 9 February2011. It recorded that such relaxation was allowed withoutloss of seniority and subject to specific conditions. By thecommunication, CBEC notified that it had lifted the ban onICTs with immediate effect. Para 2 of the circular stipulatedas follows:

“2. On consideration of all aspects in the matter ofICT, it has been decided by the Board now to lift theban on ICT with immediate effect .Accordingly, anywilling Group ‘B’\‘C’ employee and the erstwhileGroup ‘D’ employee may apply for transfer fromthe jurisdiction of one Cadre Controlling Authority(CCA) to another. CCA subject to availability ofvacancy and on the following terms & conditions:

i. The concerned two Cadre Controlling Authoritiesshould agree to the transfer,

ii. The transferee will be placed below all officersappointed regularly to that pots/grade on the date ofhis/her appointment on transfer basis in terms of Para3.5 of DOP&T’s G.M. dated 03.07.1986. In otherwords, such transferee will be junior to thoseregularly appointed officers prior to his/her transfer.However, such transferred officer will retain his/hereligibility of the parent Commissionerate for his/herpromotion to the next higher grade, etc.

iii. On transfer he/she will not be considered forpromotion in the old Commissionerate.

iv. He/she will not be entitled to any joining time andtransfer travelling allowance;

v. Under no circumstances, request for ICT shouldbe entertained till the officer appointed in particularCommissionerate/post completes the prescribedprobation period.

vi. The seniority of the officers who were allowedICT earlier by the various Cadre ControllingAuthorities on the basis of Board’s lettersF.No.A.22015/19/2006-Ad.III.A dated 27.03.2009,F.No. A.22015/11/2008-Ad.III.A dated 29.07.2009and F.No. A.22015/15/2010-Ad.IIIA dated 09.02.2011shall be fixed as per the present instructions.

vii. Officers who are presently working on deputationbasis from their parent Commissionerate to any otherCommissionerate/ Directorate and are willing to availof the ICT in future will have to revert back to theirparent Commissionerate first and apply afresh forICT. The officers who have been continuously ondeputation and have been absorbed on ICT duringthe interim period from 19.02.2004 (i.e. the date fromwhich the ban became effective) till date, theirseniority will be fixed from the date of their joiningon deputation in the transferred Zone/Commissionerate.

viii. written undertaking (in the enclosed format)to abide by the requisite terms and conditions will beobtained from the officers before the transfers areactually affected.

ix. All pending Court cases where seniority protection/ICT has been challenged may be handledappropriately in terms of these instructions andnecessary compliance furnished to the Board in duecourse.”

(vi)On 20 September 2018, CBIC issued circular (extractedabove earlier in this judgment) stating that:

A(a)RR 2016 contain no provision for recruitment by absorption;(b)Rule 5 of RR 2016 stipulates that each CCA shall have itsown separate cadre unless otherwise directed by the CBEC;

(c)There isno provision which corresponds to Rule 4(ii) of RR2002 in Rule 5 of RR 2016;

(d)Any executive instructions contrary to RR 2016 would bevoid;

(e)After the enforcement of RR 2016, there is no enablingprovision for the grant of ICTs;

(f)In exceptional circumstances employees could beCtransferred on loan basis for maximum period of threeyears extendable by further period of two years; and

(g)All ICTs in the grade of Inspectors issued on or after 26December 2016 would be withdrawn and those employeeswould be deemed to be on loan basis.

DC Submissions

12. We have heard Mr Maninder Singh, Ms Vibha Datta Makhija,Mr PN Ravindran, Mr Narender Hooda and Mr Rana Mukherjee,seniorcounsel in support of the appeals and intervention applications and MrRishi Kapoor and Mr Umakant Misra, learned counsel who have adoptedEtheir submissions. Mr KM Nataraj, Additional Solicitor General[23] hasappeared on behalf of the respondents.13. Mr Maninder Singh, learned senior counsel has urged thefollowing submissions:

(i)The Division Bench of the High Court of Kerala has heldthat with the non-inclusion of the provisions of Rule 4(ii) ofFthe RR 2002 in RR 2016, ICTs are not permissible. However,Rule 5 of RR 2016 which stipulates that each CCA willhave separate cadre, contemplates that the CBEC canprovide otherwise;

(ii)CBEC’s instructions of 27 October 2011 lifted the ban onGICTs which was imposed on 19 February 2004;

(iii)The decision by CBEC to lift the ban on ICTs must betreated as decision which relaxes the norm that each CCAwill have separate cadre; and

(iv)The basic premise of the circular dated 20 September 2018is that there is no provision for recruitment by absorption inRR 2016. This premise is fallacious because even after thenon-inclusion of Rule 4(ii) of RR 2002 in Rule 5 of RR2016, the Board has retained its power to issue directions‘otherwise’ and circular which had been issued by theBoard must be treated as being an exercise of such power.

14. Ms Vibha Datta Makhija, learned senior counsel has addressedthe court on two broad issues:

(i)Whether RR 2016 place blanket prohibition on ICTs; and

(ii)Whether the circular dated 20 September 2018 whichimposes blanket prohibition on ICTs is violative of thefundamental rights conferred by Articles 14 and 21 of theConstitution.

15. Ms Makhija has assailed the blanket prohibition on ICTs insofaras it relates to applications made on “spousal grounds”. In this backdrop,learned senior counsel urged:

(i)In the absence of specific provision in RR 2016 for ICTs,the OMs issued by DoPT will fill up the gaps in delegatedlegislation. Hence, in the absence of specific rule to thecontrary, the OMs issued by DoPT will govern the CentralGovernment service unless specifically excluded by aregulatory provision. DoPT has longstanding policy forposting of spouses at the same station. While Rule 4(ii) ofRR 2002 contained specific provision for ICTs, there isno corresponding provision in RR 2016. The absence of aspecific provision will not alter the situation;

(ii)ICTs were governed by OMs/circulars of the DoPT andDepartment of Revenue. While framing RR 2016, the Boardsent the proposal to DoPT and DoPT approved the non-inclusion of Rule 4(ii) of RR 2002 on the basis that such aprovision is generally not made in the recruitment rules.From this background, it becomes clear that the non-inclusion of Rule 4(ii) while framing RR 2016 was allowedon the premise that no prohibition for ICTs on compassionateand spousal grounds was required in the proposed rules.

618SUPREME COURT REPORTS

[2022] 12 S.C.R.

AThe circulars of the Board in 2004, 2009 and 2011 wouldclearly indicate that ICTs in relation to Group B,C and Demployees have never been the subject matter ofrecruitment rules and have fallen in the domain ofadministrative instructions. Once the ICTs were governedby executive instructions, the High Court has erred inBcoming to the conclusion that the absence of provisioncorresponding to Rule 4(ii) of RR 2002 in RR 2016 wouldbar ICTs. Since RR 2016 are silent with respect to ICTs,such transfers remain within the domain of administrativeinstructions;

C(iii)DoPT has issued its circulars in furtherance of theconstitutional object of maintaining equality and women’sempowerment as embodied in Article 15(3) of theConstitution;

(iv)In terms of the provisions contained under The GovernmentDof India (Transaction of Business Rules) 1961, any conflictbetween the policy of the DoPT and Department of Revenuewould have to be resolved by giving primacy to the formeron matters of recruitment, service conditions and cadremanagement of the central services;

E(v)The circular dated 20 September 2018 was brought intoforce without the approval of DoPT and is hence contraryto The Government of India (Transaction of Business Rules)1961;

(vi)The circular dated 20 September 2018 banning ICTs violatesFthe provisions of Articles 14 and 16(1) of the Constitutionby bringing about discrimination at two levels:

(a)It discriminates between Group ‘A’ and Group ‘B’/’C’ employees;

(b)It discriminates vis-à-vis other services under theGCentral Government to which the DoPT circularsapply;

(vii)The impugned circular results in indirect discrimination anddenies equality of opportunity to women guaranteed underArticles 15(1) and 16(1) of the Constitution; and

(viii) The circular banning ICTs does not satisfy an integratedproportionality analysis.

16. Mr Vikas Singh, learned senior counsel urged that theconsequence of the non-inclusion of provision corresponding to Rule4(ii) of RR 2002, while framing RR 2016 is that the power to effectICTs which was given to the Commissionerate has now been entrustedto the Board. Though the power had been taken away from theCommissionerate level, it continues to vest with the Board.

17. Mr PN Ravindran, learned senior counsel submitted that:

(i)The circular dated 20 September 2018 proceeds on the solebasis that there is no provision in RR 2016 for ICTs whereasICTs have always been governed by executive instructions;

(ii)Following the decision of the Kerala Central AdministrativeTribunal, provision for ICTs was issued but it was cancelledin the course of barely week; and

(iii)The non-inclusion of Rule 4(ii) while framing RR 2016 wason the ground that such provision is generally not made inthe recruitment rules.Hence, the non-inclusion of erstwhileRule 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 adviceof DoPT- which led to the non-inclusion of Rule 4(ii)- wasmerely that such stipulation was surplus age in therecruitment rules;

(ii)Under RR 2016, 90% of the cadre strength is for directrecruitment. Since an ICT is against the direct recruitmentquota, no promotional avenues get affected; and

(iii)Since 1958, ICTs have always been governed by executiveinstructions.

19. Mr Rana Mukherjee, learned senior counsel appearing onbehalf of the intervenors submitted that in the alternative, if this Courtupholds the decision of the High Court, it may at least protect personswhose transfers have already taken place albeit after RR 2016 werenotified.

A20. The arguments urged by Ms Makhija have been adopted byMr Rishi Kapoor while Mr Umakant Misra has adopted the argumentsof Mr Maninder Singh.

21. On behalf of the respondents, Mr KM Nataraj, learned ASGhas urged the following submissions:

(i)No employee can assert fundamental right or vestedright to transfer. Transfer as condition of service is alwaysa matter which is governed by the applicable rules;

(ii)Rule 4 of RR 2002 while stipulating that eachCommissionerate would have separate cadre contained aCspecific provision in Rule 4(ii), allowing for absorption fromthe cadre of one Commissionerate to anotherCommissionerate;

(iii)Rule 5 of RR 2016 contains specific stipulation that therewill be separate cadre for each CCA;

(iv)A cadre means definite sanctioned strength which is statedin the separate unit;

(v)In the absence of specific provision in Rule 5 of RR 2016to bring person from one cadre to another cadre byabsorption, there is no legal power to absorb person fromEoutside the cadre;

(vi)The non-inclusion of Rule 4(ii) when RR 2016 were framed,was designed to curb specific mischief.The provision forICTs was being abused by employees as, for instance, forthe purpose of seeking promotion and reverting to theForiginal cadre;

(vii)The entire concept of cadre and cadre strength would benegatedif ICTs are permitted in the absence of an enablingprovision such as Rule 4(ii) of the erstwhile RR 2002;

G(viii)DoPT circulars cannot override statutory rules which havebeen framed under Article 309 of the Constitution; and

(ix)Providing any kind of transfer including ICTs is matter ofpolicy and cannot be claimed as matter of right.

22. The rival submissions would now fall for analysis.H

Analysis

23. While analyzing the rival submissions, certain basic precepts

of service jurisprudence must be borne in mind.

24. First and foremost, transfer in an All India Service is an incidentof service. Whether, and if so where, an employee should be posted arematters which are governed by the exigencies of service. An employeehas no fundamental right or, for that matter, vested right to claim atransfer or posting of their choice.

25. Second, executive instructions and administrative directionsconcerning transfers and postings do not confer an indefeasible right toclaim transfer or posting. Individual convenience of persons who areemployed in the service is subject to the overarching needs of theadministration.

26. Third, policies which stipulate that the posting of spouses shouldbe preferably, and to the extent practicable, at the same station are subjectto the requirement of the administration. In this context, Justice JS Verma(as the learned Chief Justice then was) speaking for three-judge Benchof this Court in Bank of India v. Jagjit Singh Mehta[24 ]held :

“5. There can be no doubt that ordinarily and as far as practicablethe husband and wife who are both employed should be posted atthe same station even if their employers be different. The desirabilityof such course is obvious. However, this does not mean thattheir place of posting should invariably be one of their choice,even though their preference may be taken into account whilemaking the decision in accordance with the administrative needs.In the case of all-India services, the hardship resulting from thetwo being posted at different stations may be unavoidable at timesparticularly when they belong to different services and one ofthem cannot be transferred to the place of the other’s posting.While choosing the career and particular service, the couplehave to bear in mind this factor and be prepared to face such ahardship if the administrative needs and transfer policy do notpermit the posting of both at one place without sacrifice of therequirements of the administration and needs of other employees.In such case the couple have to make their choice at the thresholdbetween career prospects and family life. After giving preference

Ato the career prospects by accepting such promotion or anyappointment in an all-India service with the incident of transfer toany place in India, subordinating the need of the couple livingtogether at one station, they cannot as of right claim to be relievedof the ordinary incidents of all-India service and avoid transfer toa different place on the ground that the spouses thereby would beBposted at different places. […] No doubt the guidelines requirethe two spouses to be posted at one place as far as practicable,but that does not enable any spouse to claim such posting as ofright if the departmental authorities do not consider it feasible.The only thing required is that the departmental authorities shouldCconsider this aspect along with the exigencies of administrationand enable the two spouses to live together at one station if it ispossible without any detriment to the administrative needs andthe claim of other employees.”27. The above principle was cited with approval in Union of Indiav. SL Abbas[25 ]where the Court held that transfer is an incident of service:D“7. Who should be transferred where, is matter for theappropriate authority to decide. Unless the order of transfer isvitiated by mala fides or is made in violation of any statutoryprovisions, the court cannot interfere with it. While ordering thetransfer, there is no doubt, the authority must keep in mind theEguidelines issued by the Government on the subject. Similarly if aperson makes any representation with respect to his transfer, theappropriate authority must consider the same having regard tothe exigencies of administration. The guidelines say that as far aspossible, husband and wife must be posted at the same place.FThe said guideline however does not confer upon the Governmentemployee legally enforceable right.”

28. Fourth, norms applicable to the recruitment and conditions ofservice of officers belonging to the civil services can be stipulated in:

(i)A law enacted by the competent legislature;

G(ii)Rules made under the proviso to Article 309 of theConstitution; and

(iii)Executive instructions issued under Article 73 of theConstitution, in the case of civil services under the Unionand Article 162, in the case of civil services under the States.H25 (1993) 4 SCC 357

Fifth, where there is conflict between executive instructionsand rules framed under Article 309, the rules must prevail. In the eventof conflict between the rules framed under Article 309 and lawmade by the appropriate legislature, the law prevails. Where the rulesare skeletal or in situation when there is gap in the rules, executiveinstructions can supplement what is stated in the rules.[26]

29. Sixth, policy decision taken in terms of the power conferredunder Article 73 of the Constitution on the Union and Article 162 on theStates is subservient to the recruitment rules that have been framedunder legislative enactment or the rules under the proviso to Article309 of the Constitution.[27]

30. RR 2002 contained in Rule 4a “Special Provision”. Rule 4(i)envisaged that each Commissionerate shall have its own separate cadreunless otherwise directed by the CBEC. Rule 4(ii) commenced withanon-obstante provision in terms of which, the jurisdictional ChiefCommissionerate of Central Excise was empowered to order that anypost in the Commissionerate may be filled up by absorption of personsholding the same or comparable post belonging to the cadre of anotherCommissionerate under the CBEC. The non-obstante provision wasnecessary because Rule 4(i) contained mandate for eachCommissionerate to have its own separate cadre unless the CBECdirected otherwise. The plain consequence of each Commissioneratehaving its own cadre was to preclude the appointment of personbelonging to the cadre of another Commissionerate by way of absorption.The bar on the absorption of persons from outside the cadre was liftedas consequence of Rule 4(ii), which by embodying non-obstanteprovision allowed the jurisdictional Chief Commissionerate to allow apost in the Commissionerateto be filled by persons holding the same orcomparable post but belonging to the cadre of another Commissionerate.

31. In RR 2016 as notified, Rule 5 states that each CCA shallhave its own separate cadre, unless otherwise directed by the CBEC.The ‘Commissionerate’ in the erstwhile Rule 4(ii) was substituted by theexpression “Cadre Controlling Authority” in Rule 5 of RR 2016. Theclear intent of Rule 5 is that there would be separate cadre for each

26 Union of India and Others v. Somasundaram Viswanath and Others,

(1989) 1 SCC 175, para 6

27 State of Orissa and Others v. Prasana Kumar Sahoo (2007) 15 SCC 129,para 12

ACCA and only CBEC is entrusted with the authority to direct otherwise.Hence only CBEC could direct the constitution of joint cadre for morethan one Commissionerate. The enabling power which was conferredon jurisdictional Chief Commissionerate in Rule 4(ii) of RR 2002 isconspicuously absent in Rule 5 of RR 2016. The central submissionwhich has been urged on behalf of the appellant is that since in RR 2016Bthere is no provision corresponding to Rule 4(ii) of RR 2002, there is asilence on the subject of the absorption of persons belonging to the cadreof another Commissionerate and this silence or gap can be supplementedby executive instructions. The executive instructions, it was submitted,would be those which are embodied in the OMs which have been issuedCby DoPT or the instructions which have been issued by the Departmentof Revenue from time to time.

32. There is fundamental fallacy in the submission which hasbeen urged on behalf of the appellants. Administrative instructions, it iswell-settled, can supplement rules which are framed under the provisoDto Article 309 of the Constitution in manner which does not lead to anyinconsistencies. Executive instructions may fill up the gaps in the rules.But supplementing the exercise of the rule making power with the aid ofadministrative or executive instructions is distinct from taking the aid ofadministrative instructions contrary to the express provision or thenecessary intendment of the rules which have been framed under ArticleE309. RR 2016 have been framed under the proviso to Article 309. Rule5 of RR 2016 contains specific prescription that each CCA shall haveits own separate cadre.The absence of provision for filling up post inthe Commissionerate by absorption of persons belonging to the cadre ofanother Commissionerate clearly indicates that the cadre is treated as

Fposting unit and there is no occasion to absorb person from outside thecadre who holds similar or comparable post.

33. In JS Yadav v. State of UP[28], twojudge bench of this Courtobserved that the expression ‘cadre’ generally “denotes strength ofa service or part of service sanctioned as separate unit. It alsoGincludes sanctioned strength with reference to grades in particularservice. Cadre may also include temporary, supernumerary andshadow posts created in different grades”. Recently, three-judgeBench of this Court in Jarnail Singh v. Lacchmi Narain Gupta[29],

28 (2011) 6 SCC 57029 2022 SCC OnLine SC 96H

while dealing with the scope of the expression ‘cadre’ referred to variousjudicial pronouncements. The Bench noted:

“24. […] The dispute that arose for consideration of this Courtin Dr. Chakradhar Paswan v. State of Bihar [(1988) 2 SCC214] relates to the posts of Director and three Deputy Directorsin the Directorate of Indigenous Medicines, Department of Health,State of Bihar being grouped together for the purpose ofimplementing the policy of reservation under Article 16(4) of theConstitution of India. […] It was held that the term “cadre” has adefinite legal connotation in service jurisprudence. This Courtreferred to Fundamental Rule 9(4) which defines the word “cadre”to mean the strength of service or part of service sanctionedas separate unit. […]25. […] The meaning of “cadre” fell for consideration of thisCourt again in Union of India v. Pushpa Rani [(2008) 9 SCC242]. “Cadre” in the 1985 edition of the Railway EstablishmentCode is defined as the strength of service or part of servicesanctioned as separate unit. This Court held that the postssanctioned in different grades would constitute independent cadres,even for the purpose of implementing the roster. The reason forgiving an enlarged meaning to the term “cadre” was that the postsin the railway establishment are sanctioned with reference togrades. Even temporary, work-charged, supernumerary andshadow posts created in different grades can constitute part ofthe cadre.

28. It is clear from the above statutory regime and the law laiddown by this Court that civil posts under the Government areorganised into different services. service constitutes ‘classes’/‘groups’ of posts. ‘class’/‘group’ is further bifurcated into grades.Though the nomenclature might be different, the structure ofservices under the Union and the States is similar. According tothe instructions issued by the Union of India, cadres are constitutedfor each grade. At the cost of repetition, the Union of Indiasubmitted that there are 3800 cadres in 44 Ministries/Departments.Fundamental Rule 9(4) defines “cadre” to mean the

ABC

Astrength of service or part of service sanctioned as aseparate unit. It is the choice of State to constitute cadres.The entire service cannot be considered to be cadre for thepurpose of promotion from one post to higher post in differentgrade. Promotion is made from one grade to the next higher grade,in relation to which cadres are constituted. This Court in Dr.BChakradhar Paswan (supra) has categorically stated that thepost of Director and Deputy Director cannot form one cadre. Acadre is constituted by the Government by taking into accountseveral factors within its sole discretion.”

(emphasis supplied)

34. Rule 5 of RR 2016 postulates that each CCA has separatecadre and does not contain provision for bringing in, by way of absorption,persons from outside the cadre. Inducting persons fromoutside the cadreby absorption requires specific provision in the subordinate legislationDfor the simple reason that the concept of cadre would otherwise militateagainst bringing in those outside the cadre. That is the reason why Rule4(ii) of the erstwhile RR 2002 contained specific provision to this effect.That provision has however not been included when RR 2016 wereframed. If the authority entrusted with the power of framing rules underArticle 309 of the Constitution did so on the ground that the provisionEwas subject to misuse and was contrary to the interests of theadministration, no employee can assert vested right to claim an ICT.

35. Another submission which has been urged on behalf of theappellants is based on The Government of India (Transaction of Business)Rules 1961, which have been framed pursuant to Article 77(3) of theFConstitution. Rule 4(4) provides for consultation with the DoPT onspecified matters and reads as follows:

“4. Inter-Departmental Consultations.-

(1) When the subject of case concerns more than one department,Gno decision be taken or order issued until all such departmentshave concurred, or, failing such concurrence, decision thereonhas been taken by or under the authority of the Cabinet.

Explanation- Every case in which decision, if taken in oneDepartment, is likely to affect the transaction of business allotted

to another department, shall be deemed to be case the subjectof which concerns more than one department.

(2) Unless the case is fully covered by powers to sanctionexpenditure or to appropriate or re-appropriate funds, conferredby any general or special orders made by the Ministry of Finance,no department shall, without the previous concurrence of theMinistry of Finance, issue any orders which may-

(a) involve any abandonment of revenue or involve any expenditurefor which no provision has been made in the appropriation act;

(b) involve any grant of land or assignment of revenue orconcession, grant, lease or licence of mineral or forest rights or aright to water power or any easement or privilege in respect ofsuch concession;

(c) relate to the number or grade of posts, or to the strength of aservice, or to the pay or allowances of Government servants or toany other conditions of their service having financial implications;or

(d) otherwise have financial bearing whether involving expenditureor not;

Provided that no orders of the nature specified in clause (c) shallbe issued in respect of the Ministry of Finance without the previousconcurrence 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 general character in theexercise of statutory power conferred on the Government; and

(c) the preparation of important contracts to be entered into bythe Government.

(4) Unless the case is fully covered by decision or advicepreviously given by the Department of Personnel and Trainingthat Department shall be consulted on all matters involving-

[2022] 12 S.C.R.

A(a) the determination of the methods of recruitment and conditionsof service of general application to Government servants in civilemployment; and

(b) the interpretation of the existing orders of general applicationrelating to such recruitment or conditions of service.B(5) Unless the case is fully covered by the instructions issued oradvice given by that Ministry, the Ministry of External Affairsshall be consulted on all matters affecting India’s external relations.”

In terms of Rule 4(4), the DoPT has to be consulted on theCdetermination of the methods of recruitment and conditions of service ofgeneral application to government servants and on the interpretation ofexisting orders of general application relating to recruitment or theconditions of service.

36. The Government of India (Allocation of Business) Rules 1961Dhave also been framed under Article 77(3) of the Constitution. Rule 2envisages that the business of the Government of India shall be transactedin the Ministries, Departments, Secretariats and Offices specified in theFirst Schedule. Under Rule 3, the distribution of subjects is specified inthe Second Schedule. The distribution of subjects to the Department ofRevenue includes:E

“C. DEPARTMENT OF REVENUE

(RAJASWA VIBHAG)

1. All matters relating to-

(a) Central Board of Excise and Customs;

(b) Central Board of Direct Taxes”

37. In other words, all matters which relate to CBEC and CBDTwere assigned to the Department of Revenue. Matters which are assignedGto DoPT under the Ministry of Personnel, Public Grievances and Pensioninclude:

“A. DEPARTMENTOF PERSONNEL AND TRAINING

(KARMIK AUR PRASHIKSHAN VIBHAG)

I. RECRUITMENT, PROMOTION, AND MORALEOF SERVICES

2. General questions relating to recruitment, promotion andseniority pertaining to Central Services except RailwaysServices and services under the control of Department ofAtomic Energy, the erstwhile Department of Electronics,the Department of Space and the Scientific and TechnicalServices under the Department of Defence Research andDevelopment.

18. Advising Ministries on proper management of variouscadres under their control.

IV. SERVICE CONDITIONS

21. General questions (other than those which have afinancial bearing including Conduct Rules relating to All Indiaand Union Public Services except in regard to services underthe control of the Department of Railways, the Departmentof Atomic Energy, the erstwhile Department of Electronicsand the Department of Space.)

22. Conditions of service of Central Government employees(excluding those under the control of the Department ofRailways, the Department of Atomic Energy, the erstwhileDepartment of Electronics and the Department of Spaceand the Scientific and Technical personnel under theDepartment of Defence Research and Development, otherthan those having financial bearing and in so far as theyraise points of general service interests).

23. (a) The administration of all service rules including F.RsS.Rs and C.S.Rs (but excluding those relating to Pensionand other retirement benefits) except-

(i)proposals relating to revisions of pay structure ofemployees;

A(ii)proposals for revisions of pay scales of CentralGovernment employees;

(iii)appointment of Pay Commission, processing ofthe recommendations and implementation thereof;

(iv)dearness allowance and other compensatoryallowances and travelling allowances;

(v)any new facility to Government employees by wayof service conditions or fringe benefits whichinvolve significant recurring financial implications;and

(vi)matters relating to amendments to service ruleshaving predominantly financial character; […]”

38. Undoubtedly, while all matters pertaining to the CBEC and

DCBDT are under the domain of the Department of Revenue, there hasto be harmonious construction with the subjects which are assigned tothe DoPT. In fact, the need for harmonious reading is emphasized, aswe 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 onEthe interpretation of existing orders relating to recruitment and conditionsof service. The executive instructions which have been issued by theDoPT cannot however prevail over the specific provisions which arecontained in the rules which have been framed under the proviso toArticle 309 of the Constitution. Faced with this difficulty, the appellantsFhave sought to urge that Rule 4(ii) of RR 2002 was not included whileRR 2016 were being framed on the advice of the DoPT on the groundthat such provision is generally not made in the recruitment rules. Thissubmission is based on the disclosure made by the Department ofRevenue under the Right to Information Act 2005 on 3 July 2018. Theattachment with the RTI disclosure contains the following tabulation:G

“4. D/o Revenue has further suggested for following changes inthe draft RRs approved by the Department for which DoPT’sobservations has been mentioned against them:-

SI. Proposal DoPT’s observations ANo. (i)Col. 12 Addition of Asstt. The reasons available in the file for addition of Asstt. Programmer (DEO Grade D) (PB-2 Programmer (only 5 in No.) is to provide the GP Rs. 4200) and Steno Gr. I (PB-2 promotion avenue in Ministerial/executive side GP Rs. 4200) as feeder grade for Insp instead of technical side (p.11/c). No reason has been (C&E); Insp. (PO) and Insp (Exam) given for addition of Steno Gr.I. As the justification is not adequate or not given, we may not agree for the Baddition of both posts in the feeder grade. (ii)Col. 12 The requirement for age limit This was suggested by this Department earlier, But for appearing in the departmental due to justification given, DoPT agreed while exam has been done away with approving the proposal for keeping the age limit for promotion (p.76-83/N of L/F). Now in view of Court decision, D/o Revenue has suggested the proposal. We may agree for the same. (iii)Note 2 in Col. 12 The requisite It may be mentioned that D/o Revenue has insisted for Cheight is being dispensed with for keeping the provision for physical tests and physical those who have been recruited standards for considering promotion due to the job of without such criteria Inspector being arduous in nature. As the circumstances remain same, we may not agree to the proposal. (iv)The provision in Rule 4 As such provision is generally not made in the RRs, (notification part) for describing we may agree. DInter-Commissionerate deputation without deputation allowance has been suggested for deletion (v)The col. 7 related to added years of It may be deleted. service (vi)Col. 10 (renumbered 9) 2 years of DR and promotees (except those who are already holding posts in Group B), since probation is applicable if there is change of Group. E(vii)Col. 11 (renumbered 10) Col. 11(renumbered 10) … … 33 1/3 % by promotion 33 1/3 % by promotion through Departmental Qualifying Exam. Since, Departmental exam for promotion is either qualifying (not linked to vacancies) or competitive (linked to vacancies) Consequential changes in Col. 12 (renumbered 11)F(emphasis supplied)

39. The above tabulation indicates that the proposal which wasunder consideration was the provision for Inter-Commissioneratedeputation without deputation allowance. This was suggested for deletion.DoPT observed that such provision is generally not made in therecruitment rules and thus, the proposal may be agreed to. But apartfrom this, the Department of Revenue did not deem it fit to adopt thespecific provision which was contained in Rule 4(ii) of RR 2002 underwhich absorption of persons from other cadres was envisaged at theCommissionerate level, when Rule 5 of RR 2016 was framed. In the

Aabsence of specific provision to that effect, an employee from outsidethe cadre under the control of CCA cannot claim an ICT based onexecutive instructions. The executive instructions which have been issuedby DoPT in the form of OMs will not prevail over RR 2016 which havebeen framed under the proviso to Article 309. Similarly, the instructionswhich were issued by the Department of Revenue on 27 March 2009,Brelaxing the ban on ICT, which was imposed on 19 February 2004 andthe subsequent instructions dated 27 October 2011 were issued at thetime when RR 2016 were yet to be framed. These instructions will notgovern or prevail when the regime envisaged under RR 2016 came intoforce.C40. On behalf of the appellants, reliance was sought to be placedon the decision of two judge Bench of this Court in Prabir Banerjeev. Union of India and Others[30]. In that case, the Jabalpur Bench ofthe Central Administrative Tribunal had been moved for challenging anorder of transfer from Indore to Nagpur on the ground that an inter-Dzonal transfer was prohibited in the Department of Central Excise andCustoms. The petitioner was appointed as an Inspector of Central Exciseand was promoted as Superintendent in the Bhopal Zone whichcomprised the Commissionerates of Bhopal, Indore and Raipur. On 19February 1994, the Department of Revenue issued instructions for thediscontinuance of ICTs for Group B, and employees while stipulatingEthat in exceptional circumstances, transfers were allowed on deputationfor period of three years, extendable by one year on extremecompassionate grounds. The above circular was amended on 9 March2004 envisaging that ICTs among Commissionerates having commoncadre may be allowed to continue as hitherto where there was no loss of

Fseniority involved. Thereafter, together with abatch of other officers,the petitioner was transferred from the Indore Commissionerate to theNagpur Commissionerate which was sought to be challenged on theground that inter-zonal transfers continued to be proscribed. The Tribunaldismissed the OA and the High Court disposed of the writ petition, with

permission to the petitioner to submit representation to the competentGauthority. While the petitioner relied on the prohibitionon inter-zonaltransfers, the Additional Solicitor General appearing on behalf of theUnion of India relied on the instructions of the Board dated 24 August2004 indicating that pending decision on the demand for bifurcation of30 (2007) 8 SCC 793H

Group B, cadres relating to Nagpur and Indore Collectorates, it hadbeen decided that the cadre control of the two Collectorates would bedistributed between the Collectors of Nagpur Zone and Indore Zone.The Collector of Central Excise of Nagpur Zone was made the CCA ofGroup and employees belonging to the Ministerial cadre while theCollector of Central Excise, Indore was made the CCA in respect of theGroup and officers in the executive cadres. Since the post ofSuperintendent was Group post in the executive cadre and in respectof two Collectorates, the Collector of Central Excise Indore became theCCA of such employees in the Collectorates. It was in this backdrop,that this Court held that it was inclined to agree with the stand of therespondent that while transfer is an incident of service under the CentralService Rules, the petitioner had no cause to complain of his transferfrom the Bhopal Zone to the Nagpur Zone as the order of transfer wasissued by the Chief Commissionerate of Central Excise, Bhopal Zoneunder the powers vested in him by the Board by its circular dated 16January 2003. This Court held:“22. No doubt transfer is an incident of service in an all-Indiaservice and under the Central Service Rules the controllingauthority was competent to transfer the petitioner to any place inIndia, where it considered expedient to do so. But apart from theabove, we also have to take into consideration the decision of theCentral Board of Excise and Customs in its communication dated24-8-1984 by which pending decision on the demand for bifurcationof Group ‘B’ and ‘C’ cadres relating to Nagpur and IndoreCollectorates the Board took decision that cadre control of thesaid two Collectorates would be distributed between the twoCollectors as indicated in the said communication. As mentionedhereinabove, while the Collector of Central Excise, Nagpur, wasmade the Cadre Controlling Authority of Group ‘B’ and ‘C’ministerial cadres, the Collector of Central Excise, Indore wasmade the Cadre Controlling Authority of executive cadres of Group‘B’ and ‘C’. We are alive to the fact that the decision taken bythe Board was an administrative decision, but in the absence ofany direct rule relating to transfer between two Collectorates underthe Central Board of Excise and Customs, the said administrativeinstruction would have to be implemented insofar as inter-Collectorate transfers between the Nagpur and IndoreCollectorates was concerned. In fact, by subsequent Circular dated

A16-1-2003 the Board further declared that the Chief Commissionerof Central Excise/Customs in Commissionerate would be theCadre Controlling Authority up to Group ‘B’-level staff, and itsfunctions would include monitoring the implementation of theBoard’s instructions with regard to the transfers and equitabledistribution of manpower and material resources between theBCommissionerates/zones.”

41. The judgment in Prabir Banerjee (supra) was hence, oncompletely different facts.

42. For the above reasons, we have arrived at the conclusion thatCthe High Court was justified in coming to the conclusion that:

(i)RR 2002 contained specific provision for ICTs;

(ii)There is an absence of provision comparable to Rule 4(ii)of RR 2002 in RR 2016;

(iii)On the contrary, Rule 5 of RR 2016 specifically stipulatesthat each CCA shall have its own separate cadre unlessdirected by the CBEC;

(iv)Any ICT would violate the unique identity of each cadreenvisaged in Rule 5;

E(v)Any ICT order would transgress field which is occupiedby the rules which have been framed in terms of the provisoto Article 309 of the Constitution;

(vi)The circular dated 20 September 2018 makesit absolutelyclear that RR 2016 do not have any provision for recruitmentFby absorption and no ICT application could be consideredafter the coming into force of RR 2016;

(vii)Transfer is condition of service and it is within the powersof the employer to take policy decision either to grant ornot to grant ICTs to employees; and

(viii)The power of judicial review cannot be exercised to interferewith policy decision of that nature.

43. The realm of policy making while determining the conditionsof service of its employees is entrusted to the Union for persons belongingto the Central Civil Services and to the States for persons belonging toH

their civil services. This Court in the exercise of judicial review cannotdirect the executive to frame particular policy. Yet, the legitimacy of apolicy can be assessed on the touchstone of constitutional parameters.Moreover, short of testing the validity of policy on constitutionalparameters, judicial review can certainly extend to requiring the State totake into consideration constitutional values when it frames policies. TheState, consistent with the mandate of Part III of the Constitution,musttake into consideration constitutional values while designing its policy ina manner which enforces and implement those values.44. There are three areas where the circular dated 20 September2018 has been challenged on the grounds of constitutionality. The first ison the ground that the impugned circular bans ICTs with respect todifferent classes of posts within the same service, and henceit isdiscriminatory between Group A, and employees. We are unable toaccept this ground as there is no material on record to indicate that allthree groups are pari materia with each other. It may be the case thatthe instances of abuse of ICTs is higher with respect to employees inGroup B, as opposed to the other groups. Such decisions are taken keepingin mind the strength of the service and the needs of the administration.

45. The impugned circular has further been challenged on theaspect of gender equality and need for equal treatment of disabledpersons. We will briefly deal with both these issues.

46. In recent judgment of two-judge Bench of this Court inLt. Col. Nitisha and Others v. Union of India[31], of which one of us(Justice DY Chandrachud) is part,the Court emphasized thatdiscrimination both direct and indirect is contrary to the vision ofsubstantive equality under Articles 14, 15 and 16 of the Constitution.Elaborating on the doctrine of substantive equality and its engagementwith discrimination both in its direct and indirect form, the judgment ofthe 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 topatterns of discrimination and marginalization, this conceptionprovides that the attainment of factual equality is possible only ifwe account for these ground realities. This conception eschewsthe uncritical adoption of laws and practices that appear neutralbut in fact help to validate and perpetuate an unjust status quo.

A58. Indirect discrimination is closely tied to the substantiveconception of equality outlined above. The doctrine of substantiveequality and anti-stereotyping has been critical evolution of theIndian constitutional jurisprudence on Article 14 and 15(1). Thespirit of these tenets have been endorsed in consistent line ofauthority by this Court. To illustrate, in Anuj Garg v. HotelBAssociation of India [(2008) 3 SCC 1],this Court held that lawspremised on sex-based stereotypes are constitutionallyimpermissible, in that they are outmoded in content and stifling inmeans. The Court further held that no law that ends upperpetuating the oppression of women could pass scrutiny.CBarriers that prevent women from enjoying full and equalcitizenship, it was held, must be dismantled, as opposed to beingcited to validate an unjust status quo. In National Legal ServicesAuthority v. Union of India [(2014) 5 SCC 438], this Courtrecognized how the patterns of discrimination and disadvantagefaced by the transgender community and enumerated series ofDremedial measures that can be taken for their empowerment.In Jeeja Ghosh v. Union of India [(2016) 7 SCC 761and VikashKumar v. Union Public Service Commission [2021 SCC OnLineSC 84] this Court recognized reasonable accommodation as asubstantive equality facilitator.”E47. The Court emphasized that discrimination is not always afunction or product of conscious design or intent. Discrimination mayresult by an unconscious bias or failure to recognize unequal impactswhich are produced by the underlying societal structure. In paragraph83 of the judgment in Nitisha (supra), the Court held:F“83. study of the above cases and scholarly works gives rise tothe following key learnings. First, the doctrine of indirectdiscrimination is founded on the compelling insight thatdiscrimination can often be function, not of conscious design ormalicious intent, but unconscious/implicit biases or an inability torecognize how existing structures/institutions, and ways of doingGthings, have the consequence of freezing an unjust status quo. Inorder to achieve substantive equality prescribed under theConstitution, indirect discrimination, even sans discriminatory intent,must be prohibited.

84. Second, and as related point, the distinction between directHand indirect discrimination can broadly be drawn on the basis of

the former being predicated on intent, while the latter is based oneffect (US, South Africa, Canada). Alternatively, it can be basedon the fact that the former cannot be justified, while the latter can(UK). We are of the considered view that the intention effectsdistinction is sound jurisprudential basis on which to distinguishdirect from indirect discrimination. This is for the reason that themost compelling feature of indirect discrimination, in our view, isthe fact that it prohibits conduct, which though not intended to bediscriminatory, has that effect. As the Canadian Supreme Courtput it in Ontario HRC (supra) [Ontario Human RightsCommission v. Simpsons-Sears [1985] 2 SCR 53], requiring proofof intention to establish discrimination puts an “insuperable barrierin the way of complainant seeking remedy.” It is this barrierthat robust conception of indirect discrimination can enable usto counteract.”

48. This Court has spoken about the systemic discrimination onaccount of gender at the workplace which encapsulates the patriarchalconstruction that permeates all aspects of woman’s being from theoutset, including reproduction, sexuality and private choices, within anunjust structure. The OMs which have been issued by DoPT from timeto time recognized that in providing equality and equal opportunity towomen in the workplace of the State, it becomes necessary for theGovernment to adopt policies through which it produces substantiveequality of opportunity as distinct from formal equality for women inthe workplace. Women are subject to patriarchal mindset that regardsthem as primary caregivers and homemakers and thus, they are burdenedwith an unequal share of family responsibilities. Measures to ensuresubstantive equality for women factor in not only those disadvantageswhich operate to restrict access to the workplace but equally those whichcontinue to operate once woman has gained access to the workplace.The impact of gender in producing unequal outcomes continues to operatebeyond the point of access. The true aim of achieving substantive equalitymust be fulfilled by the State in recognizing the persistent patterns ofdiscrimination against women once they arein the work place. The DoPTOMs dated 3 April 1986, 23 August 2004, 8 July 2009 and 30 September2009 recognised the impact of underlying social structures which bearupon the lives of women in the work place and produce disparate outcomescoupled with or even without an intent to discriminate. The provisionwhich has been made for spousal posting is in that sense fundamentally

ABC

Agrounded on the need to adopt special provisions for women which arerecognized by Article 15(3) of the Constitution. The manner in which aspecial provision should be adopted by the State is policy choice whichhas to be exercised after balancing out constitutional values and theneeds of the administration. But there can be no manner of doubt that

the State, both in its role as model employer as well as an institutionBwhich is subject to constitutional norms, must bear in mind the fundamentalright to substantive equality when it crafts the policy even for its ownemployees.

49. The other ground of challenge which has been raised is thatthe impugned circular does not take into account the needs of disabledCpersons in the State’s workforce. The Rights of Persons with DisabilitiesAct 2016 is statutory mandate for recognizing the principle of reasonableaccommodation for the disabled members of society. This obligation hasbeen elaborated upon in several decisions of this Court including VikashKumar v. Union Public Service Commission and Others[32], AvniDPrakash v. National Testing Agency and Others[33] andRavinderKumar Dhariwal and Another v. Union of India and Others[34]. InVikash Kumar (supra), this Court observed that:

“63. In the specific context of disability, the principle of reasonableaccommodation postulates that the conditions which exclude theEdisabled from full and effective participation as equal members ofsociety have to give way to an accommodative society whichaccepts difference, respects their needs and facilitates the creationof an environment in which the societal barriers to disability areprogressively answered. Accommodation implies positiveobligation to create conditions conducive to the growth andFfulfilment of the disabled in every aspect of their existence —whether as students, members of the workplace, participants ingovernance or, on personal plane, in realising the fulfilling privaciesof family life. The accommodation which the law mandates is“reasonable” because it has to be tailored to the requirements ofGeach condition of disability. The expectations which every disabledperson has are unique to the nature of the disability and thecharacter of the impediments which are encountered as its

consequence.”

32 (2021) 5 SCC 370

33 2021 SCC OnLine SC 1112H34 2021 SCC OnLine SC 1293

The formulation of policy therefore, must take into account themandate which Parliament imposes as an intrinsic element of the rightof the disabled to live with dignity.

50. The State’s interference in the rights of privacy, dignity, andfamily life of persons must be proportional. This Court in Akshay N.Patel v. Reserve Bank of India[35], held that the framing of policy mustmeet an integrated proportionality analysis which answers whether themeasure is:

(i)in furtherance of 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 iscaused in service leading to plethora of litigation. The State whileformulating policy for its own employees has to give due considerationto the importance of protecting family life as an element of the dignity ofthe person and postulate of privacy. How particular policy should bemodulated to take into account the necessities of maintaining family lifemay be left at the threshold to be determined by the State. In crafting itspolicy however the State cannot be heard to say that it will be obliviousto basic constitutional values, including the preservation of family lifewhich is an incident of Article 21.52. The circular dated 20 September 2018 has taken into account,what it describes “exceptional circumstances” such as “extremecompassionate grounds”. Leaving these categories undefined, the circularallows for individual cases to be determined on their merits on case bycase basis, while prescribing that transfers on “loan basis” may beallowed subject to administrative requirements with atenure of threeyears, extendableby further period of two years. While proscribingICTs which envisage absorption into cadre of person from distinctcadre, the circular permits transfer for stipulated period on loanbasis. Whether such provision should be suitably enhanced to specificallyinclude cases involving

(i)postings of spouses;

A(ii)disabled persons; or

(iii)compassionate transfers, is matter which should beconsidered at policy level by the Board.

53. In considering whether any modification of the policy isnecessary, they must bear in mind the need for proportional relationshipBbetween the objects of the policy and the means which are adopted toimplement it. The policy above all has to fulfill the test of legitimacy,suitability, necessity and of balancing the values which underlie decisionmaking process informed by constitutional values. Hence while we upholdthe judgment of the Division Bench of the Kerala High Court, we leaveCit open to the respondents to revisit the policy to accommodate postingof spouses, the needs of the disabled and compassionate grounds. Suchan exercise has to be left within the domain of the executive, ensuring inthe process that constitutional values which underlie Articles 14, 15 and16 and Article 21 of the Constitutionare duly protected. The appealsshall be disposed of in the above terms.D

54. Pending application(s), if any, stand disposed of.

Divya Pandey(Assisted by : Roopanshi Virang, LCRA)

Appeals disposed of.