2022 Supreme(SC) 214

SUPREME COURT OF INDIA
(From the High Court of Kerala at Ernakulam)
DHANANJAYA Y. CHANDRACHUD, VIKRAM NATH, JJ.
S.K. Nausad Rahaman and Others – Appellants
Versus
Union of India and Others – Respondents
Civil Appeal Nos. 1243, 1244-1245, 1246-1248, 1249, 1250, 1251-1265, 1266, 1267 of 2022
Decided On : 10-03-2022

IMPORTANT POINTS
(1) Transfer – Transfer in an All India Service is an incident of service – An employee has no fundamental right or a vested right to claim a transfer or posting of their choice.
(2) Administrative instructions can supplement rules which are framed under proviso to Article 309 of Constitution in a manner which does not lead to any inconsistencies.
(3) Right to equality – True aim of achieving substantive equality must be fulfilled by State in recognizing persistent patterns of discrimination against women once they are in work place.
(4) State’s interference in rights of privacy, dignity, and family life of persons must be proportional.

Headnote:

(A) Service Law – Transfer – Transfer in an All India Service is an incident of service – Whether, and if so where, an employee should be posted are matters which are governed by exigencies of service – An employee has no fundamental right or a vested right to claim a transfer or posting of their choice – Executive instructions and administrative directions concerning transfers and postings do not confer an indefeasible right to claim a transfer or posting--Individual convenience of persons who are employed in service is subject to overarching needs of administration – Policies which stipulate that posting of spouses should be preferably, and to the extent practicable, at the same station are subject to requirement of administration – Where there is conflict between executive instructions and rules framed under Article 309, rules must prevail – In the event of a conflict between rules framed under Article 309 and a law made by the appropriate legislature, law prevails – Where rules are skeletal or in a situation when there is a gap in rules, executive instructions can supplement what is stated in rules – A policy decision taken in terms of power conferred under Article 73 of Constitution on Union and Article 162 on States is subservient to recruitment rules that have been framed under a legislative enactment or rules under proviso to Article 309 of Constitution. (Paras 24, 25, 26, 28 and 29)

(B) Service Law – Transfer – [Central Excise and Customs Commissionerates Inspector (Central Excise, Preventive Officer and Examiner) Group ‘B’ Posts Recruitment Rules 2016 – Rule 5 – Government of India (Transaction of Business) Rules, 1961 – Rule 4(4)] – Inter-Commissionerate Transfers – Sustainability – Administrative instructions can supplement rules which are framed under proviso to Article 309 of Constitution in a manner which does not lead to any inconsistencies – Executive instructions may fill up gaps in rules – But supplementing exercise of rule making power with aid of administrative or executive instructions is distinct from taking aid of administrative instructions contrary to express provision or necessary intendment of rules which have been framed under Article 309 – RR 2016 have been framed under proviso to Article 309 – Rule 5 of RR 2016 contains a specific prescription that each CCA shall have its own separate cadre – Absence of a provision for filling up a post in Commissionerate by absorption of persons belonging to cadre of another Commissionerate indicates that cadre is treated as a posting unit and there is no occasion to absorb a person from outside cadre who holds a similar or comparable post – Inducting persons from outside cadre by absorption requires a specific provision in subordinate legislation for simple reason that concept of a cadre would otherwise militate against bringing in those outside cadre – That is reason why Rule 4(ii) of erstwhile RR 2002 contained a specific provision to this effect – That provision has however not been included when RR 2016 were framed – If authority entrusted with power of framing rules under Article 309 of Constitution did so on the ground that provision was subject to misuse and was contrary to interests of administration, no employee can assert a vested right to claim an ICT – In absence of a specific provision to that effect, an employee from outside cadre under control of a CCA cannot claim an ICT based on executive instructions – Executive instructions which have been issued by DoPT in form of OMs will not prevail over RR 2016 which have been framed under proviso to Article 309 – Realm of policy making while determining conditions of service of its employees is entrusted to Union for persons belonging to Central Civil Services and to States for persons belonging to their civil services – Legitimacy of a policy can be assessed on touchstone of constitutional parameters – Short of testing validity of a policy on constitutional parameters, judicial review can certainly extend to requiring State to take into consideration constitutional values when it frames policies – Respondents given liberty to revisit policy to accommodate posting of spouses, needs of disabled and compassionate grounds. (Paras 32, 34, 39, 42, 43 and 53)

(C) Constitution of India – Article 14 – Right to equality – Women are subject to a patriarchal mindset that regards them as primary caregivers and homemakers and they are burdened with an unequal share of family responsibilities – Measures to ensure substantive equality for women factor in not only those disadvantages which operate to restrict access to workplace but equally those which continue to operate once a woman has gained access to workplace – Impact of gender in producing unequal outcomes continues to operate beyond point of access – True aim of achieving substantive equality must be fulfilled by State in recognizing persistent patterns of discrimination against women once they are in work place – Provision which has been made for spousal posting is in that sense fundamentally grounded on need to adopt special provisions for women which are recognized by Article 15(3) of Constitution – Manner in which a special provision should be adopted by State is a policy choice which has to be exercised after balancing out constitutional values and needs of administration – State, both in its role as a model employer as well as an institution which is subject to constitutional norms, must bear in mind fundamental right to substantive equality when it crafts policy even for its own employees – Formulation of a policy must take into account mandate which Parliament imposes as an intrinsic element of right of disabled to live with dignity – State’s interference in rights of privacy, dignity, and family life of persons must be proportional. [Rights of Persons with Disabilities Act, 2016] (Paras 48, 49 and 50)

Facts of the case:

A Division Bench of the High Court of Kerala dealt with a batch of petitions under Article 226 of the Constitution challenging the orders of the Central Administrative Tribunal on the issue of the withdrawal of Inter-Commissionerate Transfers. High Court has come to the conclusion that Central Excise and Customs Commissionerates Inspector (Central Excise, Preventive Officer and Examiner) Group ‘B’ Posts Recruitment Rules 2016 do not contain any provision for ICTs and, on the contrary, stipulate that each Cadre Controlling Authority3 will have its own separate cadre, unless otherwise directed by the Central Board of Excise and Customs. The High Court held that ICTs would violate the unique identity of each cadre envisaged under Rule 5 of RR 2016 and hence the circular withdrawing ICTs is not invalid. The judgment of the High Court has given rise to the batch of civil appeals.

Findings of Court:

In considering whether any modification of the policy is necessary, they must bear in mind the need for a proportional relationship between the objects of policy and the means which are adopted to implement it. The policy above all has to fulfill the test of legitimacy, suitability, necessity and of balancing the values which underlie a decision making process informed by constitutional values.

Result : Appeals disposed of with directions and observations.