Sk Nausad Rahaman & Ors. vs Union of India and Ors.

15 and 16 and Article 21 are duly protected – Service Law. Constitution of India – Art. 21 – Preservation of family Life – Held: State while formulating a policy for its own employees has to give due consideration to the importance of protecting family life as an element of the dignity of the person and a postulate of privacy because preservation of family life is an incident of Art.21 – Service Law.

Constitution of India – Articles 14, 15 and 16 – Substantive equality of opportunity– Held: It becomes necessary for the Government to adopt policies through which it produces substantive equality of opportunity as distinct from a formal equality for women in the workplace – The true aim of achieving substantive equality must be fulfilled by the State in recognizing the persistent patterns of discrimination against women once they are in the work place – Therefore, the State, both in its role as a model employer as well as an institution which is subject to constitutional norms, must bear in mind the fundamental right to substantive equality when it crafts the policy even for its own employees – Service Law. Service Law – Transfer Policy – Rights of Persons with Disabilities Act, 2016 – Held: It is a statutory mandate for recognizing the principle of reasonable accommodation for the disabled members of society – The formulation of a policy therefore, must take into account the mandate which Parliament imposes as an intrinsic element of the right of the disabled to live with dignity. Constitution of India – Judicial review – Policy Making – Held: Court in the exercise of judicial review cannot direct the executive to frame a particular policy - Yet, the legitimacy of a policy can be assessed on the touchstone of constitutional parameters – Service Law.

Disposing of the appeals, the Court

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

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

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

ii. Second, executive instructions and administrative directions concerning transfers and postings do not confer an indefeasible right to claim a transfer or posting. Individual convenience of persons who are employed in the service is subject to the overarching needs of the administration. iii. Third, policies which stipulate that the posting of spouses should be preferably, and to the extent practicable, at the same station are subject to the requirement of the administration.

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

a. A law enacted by the competent legislature; b. Rules made under the proviso to Article 309 of the Constitution; and

c. Executive instructions issued under Article 73 of the Constitution, in the case of civil services under the Union and Article 162, in the case of civil services under the States. v. Fifth, where there is a conflict between executive instructions and rules framed under Article 309, the rules must prevail. In the event of a conflict between the rules framed under Article 309 and a law made by the appropriate legislature, the law prevails. Where the rules are skeletal or in a situation when there is a gap in the rules, executive instructions can supplement what is stated in the rules.

vi. Sixth, a policy decision taken in terms of the power conferred under Article 73 of the Constitution on the Union and Article 162 on the States is subservient to the recruitment rules that have been framed under a legislative enactment or the rules under 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 a “Special Provision”. Rule 4(i) envisaged that each Commissionerate shall have its own separate cadre unless otherwise directed by the CBEC. Rule 4(ii) commenced with a non-obstante provision in terms of which, the jurisdictional Chief Commissionerate of Central Excise was empowered to order that any post in the Commissionerate may be filled up by absorption of persons holding the same or comparable post belonging to the cadre of another Commissionerate under the CBEC. The non-obstante provision was necessary because Rule 4(i) contained a mandate for each Commissionerate to have its own separate cadre unless the CBEC directed otherwise. The plain consequence of each Commissionerate having its own cadre was to preclude the appointment of a person belonging to the cadre of another Com relied on missionerate by way of absorption. The bar on the absorption of persons from outside the cadre was lifted as a consequence of Rule 4(ii), which by embodying a non-obstante provision allowed the jurisdictional Chief Commissionerate to allow a post in the Commissionerate to be filled by persons holding the same or comparable post but belonging to the cadre of another Commissionerate. In RR 2016 as notified, Rule 5 states that each CCA shall have its own separate cadre, unless otherwise directed by the CBEC. The ‘Commissionerate’ in the erstwhile Rule 4(ii) was substituted by the expression “Cadre Controlling Authority” in Rule 5 of RR 2016. The clear intent of Rule 5 is that there would be a separate cadre for each CCA and only CBEC is entrusted with the authority to direct otherwise. Hence only CBEC could direct the constitution of a joint cadre for more than one Commissionerate. The enabling power which was conferred on jurisdictional Chief Commissionerate in Rule 4(ii) of RR 2002 is conspicuously absent in Rule 5 of RR 2016. The central submission which has been urged on behalf of the appellant is that since in RR 2016 there is no provision corresponding to Rule 4(ii) of RR 2002, there is a silence on the subject of the absorption of persons belonging to the cadre of another Commissionerate and this silence or gap can be supplemented by executive instructions. The executive instructions, it was submitted, would be those which are embodied in the OMs which have been issued by DoPT or the instructions which have been issued by the Department of Revenue from time to time. There is a fundamental fallacy in the submission which has been urged AND ORS.

on behalf of the appellants. Administrative instructions, it is wellsettled, can supplement rules which are framed under the proviso to Article 309 of the Constitution in a manner which does not lead to any inconsistencies. Executive instructions may fill up the gaps in the rules. But supplementing the exercise of the rule making power with the aid of administrative or executive instructions is distinct from taking the aid of administrative instructions contrary to the express provision or the necessary intendment of the rules which have been framed under Article

309. RR 2016 have been framed under the proviso to Article

309. Rule 5 of RR 2016 contains a specific prescription that each CCA shall have its own separate cadre. The absence of a provision for filling up a post in the Commissionerate by absorption of persons belonging to the cadre of another Commissionerate clearly indicates that the cadre is treated as a posting unit and there is no occasion to absorb a person from outside the cadre who holds a 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 a separate cadre and does not contain a provision for bringing in, by way of absorption, persons from outside the cadre. Inducting persons from outside the cadre by absorption requires a specific provision in the subordinate legislation for the simple reason that the concept of a cadre would otherwise militate against bringing in those outside the cadre. That is the reason why Rule 4(ii) of the erstwhile RR 2002 contained a specific provision to this effect. That provision has however not been included when RR 2016 were framed. If the authority entrusted with the power of framing rules under Article 309 of the Constitution did so on the ground that the provision was subject to misuse and was contrary to the interests of the administration, no employee can assert a vested right to claim an ICT. [Para 34][626-C-E]

1.4 Undoubtedly, while all matters pertaining to the CBEC and CBDT are under the domain of the Department of Revenue, there has to be a harmonious construction with the subjects which are assigned to the DoPT. In fact, the need for a harmonious reading is emphasized, as we have seen earlier, in Rule 4(4) of The Government of India (Transaction of Business) Rules 1961, which requires the advice of DoPT to be sought on methods of recruitment and conditions of service and on the interpretation of existing orders relating to recruitment and conditions of service. The executive instructions which have been issued by the DoPT cannot however prevail over the specific provisions which are contained in the rules which have been framed under the proviso to Article 309 of the Constitution. Faced with this difficulty, the appellants have sought to urge that Rule 4(ii) of RR 2002 was not included while RR 2016 were being framed on the advice of the DoPT on the ground that such a provision is generally not made in the recruitment rules. This submission is based on the disclosure made by the Department of Revenue under the Right to Information Act 2005 on 3 July 2018. The attachment with the RTI disclosure contains the tabulation which indicates that the proposal which was under consideration was the provision for Inter-Commissionerate deputation without deputation allowance. This was suggested for deletion. DoPT observed that such a provision is generally not made in the recruitment rules and thus, the proposal may be agreed to. But apart from this, the Department of Revenue did not deem it fit to adopt the specific provision which was contained in Rule 4(ii) of RR 2002 under which absorption of persons from other cadres was envisaged at the Commissionerate level, when Rule 5 of RR 2016 was framed. In the absence of a specific provision to that effect, an employee from outside the cadre under the control of a CCA cannot claim an ICT based on executive instructions. The executive instructions which have been issued by DoPT in the form of OMs will not prevail over RR 2016 which have been framed under the proviso to Article 309. Similarly, the instructions which were issued by the Department of Revenue on 27 March 2009, relaxing the ban on ICT, which was imposed on 19 February 2004 and the subsequent instructions dated 27 October 2011 were issued at the time when RR 2016 were yet to be framed. These instructions will not govern or prevail when the regime envisaged under RR 2016 came into force. [Paras 38, 39][630D-G; 631-F-H; 632-A-C]

1.5 The High Court was justified in coming to the conclusion that: (i) RR 2002 contained a specific provision for AND ORS.

ICTs; (ii) There is an absence of a provision comparable to Rule 4(ii) of RR 2002 in RR 2016; (iii) On the contrary, Rule 5 of RR 2016 specifically stipulates that each CCA shall have its own separate cadre unless directed by the CBEC; (iv) Any ICT would violate the unique identity of each cadre envisaged in Rule 5; (v) Any ICT order would transgress a field which is occupied by the rules which have been framed in terms of the proviso to Article

309 of the Constitution; (vi) The circular dated 20 September 2018 makes it absolutely clear that RR 2016 do not have any provision for recruitment by absorption and no ICT application could be considered after the coming into force of RR 2016; (vii) Transfer is a condition of service and it is within the powers of the employer to take a policy decision either to grant or not to grant ICTs to employees; and (viii) The power of judicial review cannot be exercised to interfere with a policy decision of that nature. [Para 42][634-C-G]

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

1.7 This Court has spoken about the systemic discrimination on account of gender at the workplace which encapsulates the patriarchal construction that permeates all aspects of a woman’s being from the outset, including reproduction, sexuality and private choices, within an unjust structure. The OMs which have been issued by DoPT from time to time recognized that in providing equality and equal opportunity to women in the workplace of the State, it becomes necessary for the Government to adopt policies through which it produces substantive equality of opportunity as distinct from a formal equality for women in the workplace. Women are subject to a patriarchal mindset that regards them as primary caregivers and homemakers and thus, they are burdened with an unequal share of family responsibilities. Measures to ensure substantive equality for women factor in not only those disadvantages which operate to restrict access to the workplace but equally those which continue to operate once a woman has gained access to the workplace. The impact of gender in producing unequal outcomes continues to operate beyond the point of access. The true aim of achieving substantive equality must be fulfilled by the State in recognizing the persistent patterns of discrimination against women once they are in the work place. The DoPT OMs dated 3 April 1986, 23 August 2004, 8 July 2009 and 30 September 2009 recognised the impact of underlying social structures which bear upon the lives of women in the work place and produce disparate outcomes coupled with or even without an intent to discriminate. The provision which has been made for spousal posting is in that sense fundamentally grounded on the need to adopt special provisions for women which are recognized by Article 15(3) of the Constitution. The manner in which a special provision should be adopted by the State is a policy choice which has to be exercised after balancing out constitutional values and the needs of the administration. But there can be no manner of doubt that the State, both in its role as a model employer as well as an institution which is subject to constitutional norms, must bear in mind the fundamental right to substantive equality when it crafts the policy even for its own employees. [Para 48][637-DH; 638-A-C]

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

Vikash Kumar v. Union Public Service Commission and Others (2021) 5 SCC 370; Avni Prakash v. National AND ORS.

Testing Agency and Others 2021 SCC OnLine SC 1112; Ravinder Kumar Dhariwal and Another v. Union of India and Others 2021 SCC OnLine SC 1293; Akshay N. Patel v. Reserve Bank of India 2021 SCC OnLine SC 1180 – relied on.

1.9 The State in the present case has been guided by two objectives: first, the potential for abuse of ICTs and second, the distortion which is caused in service leading to plethora of litigation. The State while formulating a policy for its own employees has to give due consideration to the importance of protecting family life as an element of the dignity of the person and a postulate of privacy. How a particular policy should be modulated to take into account the necessities of maintaining family life may be left at the threshold to be determined by the State. In crafting its policy however the State cannot be heard to say that it will be oblivious to basic constitutional values, including the preservation of family life which is an incident of Article 21. [Para 51][639-D-E]

1.10 The circular dated 20 September 2018 has taken into account, what it describes “exceptional circumstances” such as “extreme compassionate grounds”. Leaving these categories undefined, the circular allows for individual cases to be determined on their merits on a case by case basis, while prescribing that transfers on a “loan basis” may be allowed subject to administrative requirements with a tenure of three years, extendable by a further period of two years. While proscribing ICTs which envisage absorption into a cadre of a person from a distinct cadre, the circular permits a transfer for a stipulated period on a loan basis. Whether such a provision should be suitably enhanced to specifically include cases involving (i) postings of spouses; (ii) disabled persons; or (iii) compassionate transfers, is a matter which should be considered at a policy level by the Board.

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 the 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. Hence while we uphold the judgment of the Division Bench of the Kerala High Court, we leave it open to the respondents to revisit the policy to accommodate posting of spouses, the needs of the disabled and compassionate grounds. Such an exercise has to be left within the domain of the executive, ensuring in the process that constitutional values which underlie Articles 14, 15 and 16 and Article 21 of the Constitution are duly protected. [Paras 52, 53][639-F-H; 640-A-D]

Prabir Banerjee v. Union of India and Others (2007) 8 SCC 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. Nitisha and Others v. Union of India 2021 SCC Online SC

261 – relied on.

Union of India and Others v. Somasundaram Viswanath and Others, (1989) 1 SCC 175 : [1988] 3 Suppl. SCR 146; State of Orissa and Others v. Prasana Kumar Sahoo (2007) 15 SCC 129 : [2007] 5 SCR 697; JS Yadav v. State of UP. (2011) 6 SCC 570 : [2011] 5 SCR 460; Jarnail Singh v. Lacchmi Narain Gupta 2022 SCC OnLine SC 96 – referred to.