Sukanya.A.S vs Union Of India
2024 Latest Caselaw 13415 Ker

Kerala High Court

Sukanya.A.S vs Union Of India on 24 May, 2024

Author: Amit Rawal

Bench: Amit Rawal

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                THE HONOURABLE MR. JUSTICE AMIT RAWAL
                                   &
                THE HONOURABLE MR. JUSTICE EASWARAN S.
        FRIDAY, THE 24TH DAY OF MAY 2024 / 3RD JYAISHTA, 1946
                        OP (CAT) NO. 89 OF 2024
 AGAINST THE ORDER/JUDGMENT DATED 21.05.2024 IN OA NO.263 OF 2024
        OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH
PETITIONER/APPLICANT:

            SUKANYA.A.S., AGED 42 YEARS
            W/O NAJMUDEEN S.M., EXECUTIVE ASSISTANT, OFFICE OF THE
            COMMISSIONER OF CENTRAL GOODS AND SERVICE TAX, AND
            CENTRAL EXCISE, THIRUVANANTHAPURAM - 695 001 RESIDING
            AT "NEEHARAM" NO. T C 32/2437 -1, VETTIKONAM,
            VAZHAYILA, PEROORKADA, THIRUVANANTHAPURAM, PIN - 695013
            BY ADVS.
            T.C.GOVINDASWAMY
            KALA T.GOPI
            KAILESH T. GOPI
            NISHITHA BALACHANDRAN
            RAHUL R.
RESPONDENTS/RESPONDENTS:

    1       UNION OF INDIA
            REPRESENTED BY ITS SECRETARY TO GOVERNMENT OF INDIA,
            MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NEW DELHI,
            PIN - 110001
    2       THE CHAIRMAN
            THE CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS,
            (GOVERNMENT OF INDIA), 5TH FLOOR, HUDCO VISHALA
            BUILDING, BIKAJI CAMA PLACE, NEW DELHI, PIN - 110022
    3       THE CHIEF COMMISSIONER OF CENTRAL EXCISE
            CUSTOMS AND SERVICE TAX, C.R.BUILDING, I.S.PRESS ROAD,
            KOCHI, PIN - 682018
    4       THE COMMISSIONER OF CENTRAL GOODS & SERVICES TAX
            CENTRAL EXCISE, PRESS CLUB ROAD, STATUE,
            THIRUVANANTHAPURAM, PIN - 695001
    5       THE PRINCIPAL CHIEF COMMISSIONER OF GST
            (GOVERNMENT OF INDIA) NO. 26/1 MG ROAD, NUNGAMBAKKAM,
            CHENNAI, PIN - 600034
     THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 24.05.2024, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP (CAT) NO. 89 OF 2024
                                 2

              AMIT RAWAL & EASWARAN S., JJ.
                ------------------------------------
                    OP (CAT) No.89 of 2024
                -------------------------------------
             Dated this the 24th day of May, 2024

                          JUDGMENT

Easwaran, J.

This matter mentioned for urgent motion by

Sri.T.C.Govindaswamy. Permission granted. The matter taken

on board.

2. The petitioner/applicant assails Ext.P6 order dated

21.5.2024 of the Central Administrative Tribunal, Ernakulam

Bench vacating the interim order granted in her favour on

24.4.2024.

3. The petitioner while working as Executive Assistant in

Level-6 of the Pay Matrix under the Commissionerate of Central

Goods and Services Tax was issued with Annexure-A1 order

dated 22.4.2024. By the said order, the petitioner was sought

to be relieved from the post of Executive Assistant to her

parent Zone in compliance with the directions issued by the OP (CAT) NO. 89 OF 2024

Board vide letter dated 22.4.2022. Challenging the order, the

petitioner approached the Central Administrative Tribunal,

Ernakulam Bench with the present Original Application.

4. The contentions, in brief, are as follows:

On 31.10.2012, the petitioner commenced her service under

the Principal Chief Commissioner of GST, Chennai Zone. While

so, the petitioner was promoted as Senior Tax Assistant on

14.10.2015. Thereafter, a new service called as Executive

Assistant was created by amalgamation of different cadres like

Senior Tax Assistants, etc. and new Recruitment Rules came

into effect on 28.09.2015. Subsequent to that, willingness of

the applicant was sought for an eventual transfer on spouse

ground and other domestic problems. The applicant granted

NOC by the 5th respondent as per Annexure-A5 and later by

Annexure-A6 order dated 06.06.2017, the applicant/petitioner

was transferred as Executive Assistant under the Cochin Zone.

Later by Annexure-A1 order, which was impugned in the

Original Application, the benefit was withdrawn and there was a OP (CAT) NO. 89 OF 2024

suggestion to repatriate the applicant/petitioner to the parent

zone. The relief sought for before the Central Administrative

Tribunal was to set aside Annexure-A1 and allow the petitioner

to continue under the 3rd and 4th respondents, as if Annexure-

A1 was not issued.

5. The Central Administrative Tribunal, Ernakulam Bench

on 24.4.2024 granted an interim order of stay of operation of

Annexure-A1 order in the Original Application.

6. The respondents therein appeared and filed their

reply statement and sought for vacation of the interim order

granted in favour of the petitioner. On consideration of

materials on record and the pleadings of respective parties, the

Central Administrative Tribunal, Ernakulam Bench by Ext.P6

order dated 21.5.2024 vacated the interim order granted in

favour of the petitioner. This order is impugned in the present

Original Petition.

7. We have heard Sri.T.C.Govindaswamy assisted by

Smt.Kala T.Gopi appearing on behalf of the petitioner/applicant. OP (CAT) NO. 89 OF 2024

8. In the nature of the order that we intend to pass, we

do not deem it appropriate to call the respondents to answer

the claim of the petitioner/applicant. Hence, we decline to

issue to notice in this Original Petition for the reasons to be

discussed below.

9. Learned counsel appearing for the petitioner would

submit that the order of the Tribunal causes severe hardship to

the petitioner, especially when the petitioner has to take care of

her blind father and if in the meantime, during the pendency of

the Original Application, if she is repatriated to the Chennai

Zone, untoward hardship will be caused. Therefore, it is her

specific case that when pleadings were completed before the

Tribunal, there was no rhyme or reason as to why the Tribunal

should have vacated the interim order and instead, considered

the contentions in the main Original Application and should

have proceeded to pass final orders. On merits of the claim,

Sri.T.C.Govindaswamy contended that without withdrawing OP (CAT) NO. 89 OF 2024

Annexure-A6 order, the respondents could not have issued

Annexure-A1 order.

10. However, we cannot agree with the submissions of

Sri.T.C.Govindaswamy, learned counsel appearing for the

petitioner. It is now settled law that transfer is an incidence of

service. The petitioner was granted some exemptions/

concessions and that is precisely the reason why Annexure-A6

order was issued. The Tribunal has taken note of the fact that

the Hon'ble Supreme Court in S.K.Nausad Rahaman & Ors.

v. Union of India & Ors. [AIR 2022 SC 1494] has upheld

the decision of the High Court of Kerala holding that the

Recruitment Rules of 2016 did not contain any provision for

inter-Commissionerate transfer. It must be noted that the Apex

Court had left open to the Board to re-visit the policy to

accommodate the posting of spouses, needs of the disabled and

compassionate grounds. While deciding to discontinue the

interim order granted in the favour of the petitioner, the

Central Administrative Tribunal also took note of a Bench OP (CAT) NO. 89 OF 2024

decision of this Court in OP(CAT) No.173/2018. It is pertinent

to note that the petitioner was working in Cochin Zone since

19.06.2017 and in the absence of any specific absorption clause

in the Recruitment Rules for the cadre of Executive Assistant

and also for claiming inter-Commissionerate transfer, the

Tribunal was of the considered view that the interim order

cannot be continued.

11. On a contrary, when this fact was brought to the

notice of the learned counsel for the petitioner, he brought to

our notice Annexure-A3, which is the Central Excise and

Customs Department, Executive Assistant (Group-B, Non-

Gazetted posts) Recruitment Rules, 2015 and persuaded us to

take a different view, since what was considered in OP(CAT)

No.173/2018 was the Central Excise and Land Customs

Department Inspector (Group-C posts) Recruitment Rules,

2002, which was later amended in the year 2016. However,

we are not impressed by the aforesaid argument. Irrespective

as to whether the Recruitment Rules of 2015 or that of 2016, OP (CAT) NO. 89 OF 2024

grants a concession for inter-Commissionerate transfer, the

petitioner cannot aspire to continue under the Cochin Zone in

perpetuity. As we have already held that transfer is an

incidence of service, as and when the Department decides to

repatriate the petitioner to her parent zone, she will have to

necessarily follow the said instructions. Therefore, in our

considered view, there is no illegality or impropriety in the

order of the Tribunal in vacating the interim order granted on

24.4.2024. Therefore, we are not inclined to interfere with

Ext.P6 order dated 21.5.2024. Accordingly, the Original

Petition fails and the same is dismissed. However,

notwithstanding what we held as above, the same was only for

the purpose of deciding as to whether there is any illegality or

impropriety in the order passed by the Central Administrative

Tribunal vacating the interim order. In other words, this

judgment of ours shall not be construed as deciding the claim

of the petitioner in the Original Application on merits.

Therefore, while dismissing this Original Petition, we make it OP (CAT) NO. 89 OF 2024

clear that the Tribunal will be free to decide the claim in the

Original Application, untrammelled by any of our observations,

and also direct the Central Administrative Tribunal, Ernakulam

Bench for an expeditious disposal of the Original Application

untrammelled by the observations contained in this judgment.

The Original Petition is thus dismissed. No order as to

costs.

Sd/-

AMIT RAWAL JUDGE

Sd/-

EASWARAN S. JUDGE jg OP (CAT) NO. 89 OF 2024

APPENDIX OF OP (CAT) 89/2024

PETITIONER ANNEXURES Exhibit-P1 A TRUE COPY OF THE O.A.NO.180/263/2024 DATED 24.04.2024 ALONG WITH ITS ANNEXURES FILED BEFORE LEARNED C.A.T., ERNAKULAM BENCH.

Annexure-A1    A     TRUE    COPY     OF      THE      ORDER     NO.
               GCCO/II/(39)/26/2021-ADMN      DATED     22.04.2024,

ISSUED ON BEHALF OF THE THIRD RESPONDENT. Annexure-A2 A TRUE COPY OF LETTER NO.C.NO.11/3/35/2015- CCA(ESTT)-ICT DATED 14.10.2015, ISSUED FROM THE OFFICE OF THE 5TH RESPONDENT.

Annexure-A3 A TRUE COPY OF THE GOVERNMENT OF INDIA, MINISTRY OF FINANCE GSR NO.741(E) DATED 28.09.2015.

Annexure-A4 TRUE COPY OF THE ORDER BEARING NO.43/2017 DATED 03.05.2017, ISSUED BY THE 5TH RESPONDENT. Annexure-A5 A TRUE COPY OF THE 5 LETTER BEARING NO.II/03/09/2016-CCA(ESTT)-ICT, DATED 08.05.2017, ISSUED BY THE RESPONDENT. Annexure-A6 A TRUE COPY OF THE ORDER BEARING NO.II/3/21/2017-ESTT DATED 06.06.2017, ISSUED BY THE THIRD RESPONDENT.

Annexure-A7 A TRUE COPY OF THE LETTER BEARING F.NO.A.32012/18/2019-AD.III-A DATED 22.04.2022, ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT. Annexure-A8 A TRUE COPY OF THE REPRESENTATION DATED 27.04.2022 ADDRESSED TO THE 4TH RESPONDENT. Annexure-A9 A TRUE COPY OF THE REPRESENTATION DATED 27.04.2022 ADDRESSED TO THE 2ND RESPONDENT. Annexure-A10 A TRUE COPY OF THE ORDERS ISSUED BY THE SECOND RESPONDENT UNDER F.NO.A.22015/117/2016-AD.III.A DATED 02.01.2017.

Annexure-R1(a) TRUE COPY OF CIRCULAR F.NO.A-22015/117/2016- AD.IIIA DATED 20.09.2018 ISSUED FROM THE OFFICE OF THE 1ST RESPONDENT.

Annexure-R1(b) TRUE COPY OF CLARIFICATION NO.02/2021 DATED 15.01.2021 ISSUED FROM THE OFFICE OF THE 1ST RESPONDENT.

Annexure-R1(c) TRUE COPY OF JUDGEMENT DATED 10.10.2019 IN OP(CAT) NO.198 OF 2019 AND CONNECTED CASES. OP (CAT) NO. 89 OF 2024

Annexure-R1(d) TRUE COPY OF LETTER F.NO.22015/117/2016-AD.III A-PART(1) DATED 07.08.2023 ISSUED FROM THE OFFICE OF 1ST RESPONDENT-BOARD.

Exhibit-P2 A TRUE COPY OF THE INTERIM ORDER IN O.A.NO.180/263/2024 DATED 24.04.2024 RENDERED BY THE LEARNED CAT, ERNAKULAM BENCH.

Exhibit-P3 A TRUE COPY OF THE INTERIM ORDER IN O.A.NO.180/263/2024 DATED 02.05.2024 RENDERED BY THE LEARNED CAT, ERNAKULAM BENCH.

Exhibit-P4 A TRUE COPY OF THE OBJECTION TO THE PRAYER FOR INTERIM RELIEF FILED BY THE RESPONDENTS DATED 01.05.2024 Exhibit-P5 A TRUE COPY OF THE REJOINDER TO THE OBJECTIONS FILED AGAINST THE PRAYER FOR INTERIM RELIEF, DATED 06.05.2024 Exhibit-P6 A TRUE COPY OF THE ORDER OF THE LEARNED CAT, ERNAKULAM BENCH IN O.A.NO.180/263/2024 DATED 21.05.2024 VACATING THE INTERIM ORDER.