The Supreme Court has reiterated that Constitution doesn't provide an employee with any fundamental right or a vested right to claim a transfer or posting of their choice.
The Division-Bench comprising of Justice DY Chandrachud and Justice Vikram Nath went on to summarize the Service Law with regard to principles relating to transfer and postings while dealing with catena of petitions.
The Court at the outset noted that transfer in an All India Service is an incident of service and whether, and if so where, an employee should 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.
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, the Court added.
Referring to Bank of India Vs. Jagjit Singh Mehta, 1991 Latest Caselaw 304 SC, the Court stated that 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.
It also cited Union of India & Ors Vs. S.L. Abbas, 1993 Latest Caselaw 231 SC wherein it was decided that transfer is an incident of service.
“7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, 16 the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right.”
The Court mentioned norms that are applicable to the recruitment and conditions of service of officers belonging to the civil services which can be stipulated in:
(i) A law enacted by the competent legislature;
(ii) Rules made under the proviso to Article 309 of the Constitution; and
(iii) 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.
It went on to note that as settled Union of India and Othersv.Somasundaram Viswanathand Others, in 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.
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, the Court said cititng State of Orissa and Others v.Prasana Kumar Sahoo.
The appeals were against a Kerala High Court judgment wherein it rejected the challenge against a circular issued by the Central Board of Indirect Taxes and Customs(CBIC) in 2018 withdrawing Inter-Commissionerate Transfers. The High Court had come to the conclusion that the 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 Authority 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 Court while rejecting the submission made by the appellants, pointed out that there is is a fundamental fallacy.
"Administrative instructions, it is well-settled, 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 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."
The Court also mentioned that recently, a Bench of the Court while dealing with the scope of the expression ‘cadre’ referred to various judicial pronouncements. As per a pervious precedent, the expression ‘cadre’ generally “denotes a strength of a service or a part of service sanctioned as a separate unit. It also includes sanctioned strength with reference to grades in a particular service. Cadre may also include temporary, supernumerary and shadow posts created in different grades”.
It also pointed that the Government of India (Allocation of Business) Rules 1961 have also been framed under Article 77(3) of the Constitution. Rule 2 envisages that the business of the Government of India shall be transacted in the Ministries, Departments, Secretariats and Offices specified in the First Schedule. Under Rule 3, the distribution of subjects is specified in the Second Schedule.
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