# SK NAUSAD RAHAMAN & ORS v. UNION OF INDIA AND ORS

- **Citation:** [2022] 12 S.C.R. 591
- **Court:** Supreme Court of India
- **Decided:** 2022-03-10
- **Case number:** Civil Appeal No. 1243 of 2022
- **Bench:** Dr. Dhananjaya Y Chandrachud, Vikram Nath
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sk-nausad-rahaman-ors-v-union-of-india-and-ors-35457
- **Pages:** 50

## Headnote

Central Excise and Customs Commissionerates Inspector
(Central Excise, Preventive Officer and Examiner) Group 'B' Posts
Recruitment Rules 2016 - r.5 - Central Excise and Land Customs
Department Inspector (Group C posts) Recruitment Rules 2002 -
r.4(ii) - Constitution of India - Article 309, 14-16, 21 - Circular
issued by CBIC stating that since 2016 Recruitment Rules (which
superseded and substituted 2002 Recruitment Rules) do not contain
any provision for recruitment by absorption, no application for Inter
Commissionerate Transfers (ICTs) could be considered after the
enforcement 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 that
2002 Recruitment Rules contained a specific provision for ICTs -
There is an absence of a provision comparable to r. 4(ii) of 2002
Recruitment Rules in 2016 Recruitment Rules - On the contrary, r.5
of 2016 Recruitment Rules specifically stipulates that each Cadre
Controlling Authority (CCA) shall have its own separate cadre unless
directed by the Central Board of Excise and Customs (CBEC) - Any
ICT would violate the unique identity of each cadre envisaged in
r.5 - 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 - The circular makes it clear that 2016 Recruitment Rules do
not have any provision for recruitment by absorption and no ICT
application could be considered after the coming into force of 2016
Recruitment Rules - 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 - Power of judicial review cannot
be exercised to interfere with a policy decision of that nature -
While the judgment of the High Court is upheld, it is left open to the
respondents to revisit the policy to accommodate posting of spouses,
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[2022] 12 S.C.R.
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 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 paramete

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 [2022] 12 S.C.R. 591
SK NAUSAD RAHAMAN & ORS.
v.
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' Posts
Recruitment Rules 2016 - r.5 - Central Excise and Land Customs
Department Inspector (Group C posts) Recruitment Rules 2002 -
r.4(ii) - Constitution of India - Article 309, 14-16, 21 - Circular
issued by CBIC stating that since 2016 Recruitment Rules (which
superseded and substituted 2002 Recruitment Rules) do not contain
any provision for recruitment by absorption, no application for Inter
Commissionerate Transfers (ICTs) could be considered after the
enforcement 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 that
2002 Recruitment Rules contained a specific provision for ICTs -
There is an absence of a provision comparable to r. 4(ii) of 2002
Recruitment Rules in 2016 Recruitment Rules - On the contrary, r.5
of 2016 Recruitment Rules specifically stipulates that each Cadre
Controlling Authority (CCA) shall have its own separate cadre unless
directed by the Central Board of Excise and Customs (CBEC) - Any
ICT would violate the unique identity of each cadre envisaged in
r.5 - 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 - The circular makes it clear that 2016 Recruitment Rules do
not have any provision for recruitment by absorption and no ICT
application could be considered after the coming into force of 2016
Recruitment Rules - 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 - Power of judicial review cannot
be exercised to interfere with a policy decision of that nature -
While the judgment of the High Court is upheld, it is left open to the
respondents to revisit the policy to accommodate posting of spouses,
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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 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
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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
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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
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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
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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
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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
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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
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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
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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.
Case Law Reference
[1991] 2 Suppl. SCR 492
relied on
Para 26
[1993] 3 SCR 427
relied on
Para 27
[1988] 3 Suppl. SCR 146
referred to
Para 28
[2007] 5 SCR 697
referred to
Para 29
[2011] 5 SCR 460
referred to
Para 33
[2007] 10 SCR 694
distinguished
Para 40
CIVIL APPELLATE JURISDICTION : Civil Appeal No.1243
of 2022.
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From the Judgment and Order dated 10.04.2019 of the High Court
of 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 Santosh
Kumar, Aditya Bhat, Tarun Gupta, Rishi Kapoor, Ashish Pandey, Kapish
Seth, 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. Prakriti
Roy, Advs. for the appearing parties.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
A
Facts ........................................................................4*
B
Relevant circulars and notifications ................ 10*
B.1 .....................Executive Instructions issued by
DoPT .................................................................... 10*
B.2 Circulars issued by Department of Revenue,
Ministry of Finance ............................................ 14*
C
Submissions......................................................... 19*
D
Analysis................................................................ 26*
A Facts
1. 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 Transfers1. The High Court has
come to the conclusion that the Central Excise and Customs
Commissionerates Inspector (Central Excise, Preventive Officer and
Examiner) Group 'B' Posts Recruitment Rules 20162 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
1 "ICT"
2 "Recruitment Rules 2016" or "RR 2016"
3 "CCA"
*Ed. Note : Pagination is as per the original Judgment.
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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.
2. The appellants are Inspectors of the Central Excise and Land
Customs or, as the case may be, Goods and Services Tax Administration,
who were allocated to different CCAs. Section 4 of the Customs Act
1962 provides that the Central Board of Indirect Taxes and Customs4
may appoint such persons as it thinks fit to be officers of customs. A
similar provision is contained in Section 4 of the Central Goods and
Services Tax Act 20175, which states that:
"4. (1) The Board may, in addition to the officers as may be notified
by the Government under section 3, appoint such persons as it
may think fit to be the officers under this Act.
(2) Without prejudice to the provisions of sub-section (1), the Board
may, by order, authorise any officer referred to in clauses (a) to
(h) of section 3 to appoint officers of central tax below the rank
of Assistant Commissioner of central tax for the administration of
this Act."
The expression 'Board' is defined in Section 2(16) of the CGST
Act as the Central Board of Excise and Customs6 constituted under the
Central Boards of Revenue Act 1963.
3. On 29 November 2002, the Central Excise and Land Customs
Department Inspector (Group C posts) Recruitment Rules 20027 were
notified. RR 2002 trace the source of power to the proviso to Article 309
of the Constitution. Rule 4 was in the following terms:
"4. Special provision. - (i) Each Commissionerate shall have its
own separate cadre unless otherwise directed by the Central Board
of Excise and Customs*
(ii) Notwithstanding anything contained in sub-rule (1), the
jurisdictional Chief Commissioner of Central Excise may,if he
considers 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"
* Now referred to as Centra Board of Indirect Taxes and Customs (CBIC)
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do and subject to such conditions as he may determine having
regard to the circumstances of the case and for reasons to be
recorded in writing, order any post in the Commissionerate of
Central Excise to be filled by absorption of persons holding the
same or comparable posts but belonging to the cadre another
Commissionerate or Directorate under the Central Board of Excise
and Customs."
4. RR 2002 were superseded and substituted by RR 2016. Rule 5
of RR 2016 provides that:
"5.Special Provision.- Each Cadre Controlling Authority (CCA)
shall have its own separate cadre, unless otherwise directed by
the Central Board of Excise and Customs."
5. A comparison of Rule 4 of RR 2002 with Rule 5 of RR 2016
would 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 separate
cadre, unless otherwise directed by the CBIC. Rule 5 of RR Rules 2016
substitutes the expression "CCA" for the expression "Commissionerate".
Significantly, Rule 4 (ii) of RR 2002 does not find place in Rule 5 of RR
2016. Rule 4(ii) contained a non-obstante provision under which a
jurisdictional Chief Commissioner of Central Excise had enabling power
to allow the absorption of persons from another Commissionerate under
the CBIC in the public interest, and subject to conditions as would be
determined. Rule 4(ii) of RR 2002 which contains an express provision
for ICTs was not incorporated in Rule 5 when RR 2016 were notified.
6. On 20 September 2018, the CBIC issued a circular8 stating
that since RR 2016 do not contain any provision for recruitment by
absorption, no application for ICTs could be considered after the
enforcement of those rules. The circular forms the genesis of the dispute
in the present case and is hence extracted below:
"CIRCULAR
Subject: Instructions in respect of Inter Commissionerate
Transfer (ICT) in the light of new Recruitment Rules, 2016regarding.
These instructions are being issued in terms of "Central Excise
and Customs Commissionerate Inspector (Central Excise,
Preventive Officer and Examiner) Group B Posts
Recruitment Rules, 2016"
8 F. No. A-22015/117/2016-Ad.IIIA dated 20 September 2018
SK NAUSAD RAHAMAN & ORS. v. UNION OF INDIA
AND ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]
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2. Any executive instruction in contravention of the Recruitment
Rules will be void in accordance with the ratio of the judgment of
the Hon'ble Supreme Court of India in the case of UOI & others
Vs. Somasundran1 Viswanath & Ors. dated 22.09.1988 (1990
SC 166 (10) which held as follows: -
(1) "It is well settled that the norms regarding recruitment
and promotion of officers belonging to the Civil Services can
be laid down either by a law made by appropriate Legislature
or by rules made under the proviso to Article 309 of the
Constitution of India or by means of executive instructions
issued under article 73 of the Constitution of India in the
case of Civil Services under the Union of India and under
Article 162 of the constitution of India in the case of Civil
Services under the State Governments. If there is a conflict
between the executive instructions and the rules made under
the proviso to Article 309 of the Constitution of India, the
rules made under proviso to Article 309 of the Constitution
of India prevail." Thus, the Recruitment Rules formulated under
Article 309 will prevail over any executive instruction that may be
contradictory to it"
3. It has come to the notice of this office that various CCAs
(Cadre Control Authorities) are taking divergent stands on the
issue of Inter Commissionerate Transfers (!CT) of officers in the
cadre of Inspector on the basis of guidelines issued vide F.No. A
22015/23/2011-AD IIIA dated 27.10.2011. The issue of Inter
Commissionerate Transfer under "Central Excise and Customs
Commissionerate Inspector (Central Excise, Preventive
Officer and Examiner) Group B Posts Recruitment Rules,
2016" has been examined by the Board and following has been
observed.
4. The ICT applications were being considered under Rule 4 of
erstwhile Central Excise and Land Customs Department Inspector
(Group 'C' Posts) Recruitment Rules, 2002 which stated that:
"Rule 4. Special provision. - (i) Each Cadre controlling
Authority (CCA) shall have its own separate cadre unless
otherwise directed by the Central Board of Excise and Customs
(ii) Notwithstanding anything contained in sub-rule (1), the
jurisdictional Chief Commissioner of Central Excise may, if
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he considers to be necessary or expedient in the public interest
so to do and subject to such conditions as he may determine
having regard to the circumstances of the case and for reasons
to be recorded in writing, order any post in the
Commissionerate of Central Excise to be filled by absorption
of persons holding the same or comparable posts but
belonging to the cadre another Commissionerate of
Directorate under the Central Board of Excise and Customs.
However, under Recruitment Rules, 2016 the corresponding
provision containing the special provision under Rule 5 provides
that "Each Cadre Controlling Authority (CCA) shall have its
own separate cadre unless otherwise directed by the Central
Board of Excise and Customs."
5. From the above, it is clear that Recruitment Rules, 2016 do not
have any provision for recruitment by absorption and accordingly,
no ICT application can be considered after coming into force of
the Recruitment Rules, 2016.
6. In exceptional circumstances depending upon the merit of each
case such as extreme compassionate grounds, such transfers may
be allowed on case to case on loan basis alone keeping in view
the administrative requirements of transferee and transferred
Cadre Controlling Authority. However, maximum tenure of such
transfer will be three years and can be extended with the specific
approval of the Board for a further period of two years depending
upon the administrative requirement. It is further reiterated that
the officials transferred on the loan basis shall not be considered
for promotion unless they re-join their parent cadre.
7. Now, therefore, it is hereby clarified that an office order for
Inter Commissionerate Transfer in the Grade of Inspectors issued
on 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 joined
another zone in pursuance of such order shall be treated as a
deemed case on loan basis w.e.f. 26.12.2016. These officers
shall be on deemed loan till 31.03.2019, on which date the officers
shall stand relieved and be reverted to their parent Zones. [...]"
7. While clarifying that under RR 2016, there is no specific provision
allowing for ICTs, the circular notes that Rule 5 stipulates that each
SK NAUSAD RAHAMAN & ORS. v. UNION OF INDIA
AND ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]
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CCA will have its own separate cadre, unless otherwise directed by the
Board. Rule 5 has been construed to mean that given that each CCA is
to have its own cadre, ICTs, which involve a transfer from one
Commissionerate to another would no longer be permissible and
accordingly all orders for such transfers which were issued on or after
26 December 2016 (the date on which RR 2016 were notified) would be
non-est. The circular, however, allows that in exceptional circumstances,
depending upon the merits of each case and on extreme compassionate
grounds, such transfers may be allowed on 'case to case onloan basis'
keeping in view the administrative requirements of the transferee and
the transferred CCAs. However, the maximum tenure of such transfer
has been fixed as three years which can be extended by a further period
of two years.
8. The validity of the circular dated 20 September 2018 was
challenged before the Central Administrative Tribunal. The challenge
was upheld by the Tribunal. The High Court, in the exercise of its
jurisdiction under Article 226, reversed the decision of the Tribunal.
B Relevant circulars and notifications
9. In order to appreciate the controversy in its entirety, it would be
necessary to deal with the circulars and office memoranda9 which have
held the field in the past. There are two sets of executive instructions: (i)
the first set concerns those instructions which were issued by the
Department of Personnel and Training10 and (ii) the second set concerns
executive 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 the
DoPT regarding ICTs:
(i)
On 3 April 1986, an OM11 was issued by DoPT. The subject
of the OM was: "Posting of husband and wife at the same
station". The OM dealt with the posting of employees of
the Central Government and underscored that within
administrative constraints, it was the policy of the
Government that spouses should be posted at the same
station as far as possible. Paragraph 2 of the circular
indicated its rationale in the following terms.
9 "OM"
10 "DoPT"
11 No. 28036/7/86-Estt(A)
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"2.The Govt. of India have given the utmost importance
to the enhancement of women's status in all sectors and
all walks of life. Strategies and policies are being
formulated and implemented by different Ministries of
the Central Govt. to achieve this end. It is also considered
necessary to have a policy which can enable women
employed under the Govt and the public sector and
undertaking to discharge their responsibilities as wife/
mother on the one hand and productions workers on the
other, more-effectively.It is the policy of the Govt. that
as far as possible and within the constraints of
administrative feasibility, the husband and wife should
be posted at the same station to enable them to lead a
normal family life and to ensure the education and
welfare of their children."
Paragraph 4 of the circular envisaged various situations, depending
upon the service to which spouses may belong and illustrated the following
eventualities:
"4. The classes of cases that may arise, and the guidelines for
dealing with each class of case, are given below: -
(i) Where the spouse belong to the same All India Service or
two of the All India Service namely IAS, IPSA and Indian
Forest Services (Group-A).
(ii) Where one spouse belongs to one of the All India Service
and the other spouse belongs to one of the Central Services: -
The cadre controlling authority of the Central Service may
post the officer to the station or if there is no post in that station
to the State where the other spouse belonging to the All India
Service is posted.
(iii) Where the spouse belong to the same central service:
The cadre controlling authority may post the spouses to the
same station.
(iv) Where the spouse belongs to one Central Service and the
other spouse belongs to another Central Service: -
The spouse with the longer service at a station may apply to
the appropriate cadre controlling authority and the said authority
SK NAUSAD RAHAMAN & ORS. v. UNION OF INDIA
AND ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]
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may post the said officer to the station, or if there is no post in
that station to the State where the other spouse belonging to
the other central service is posted.
(v)Where one spouse belongs to an All India Service and the
other spouse belongs to a public sector:
The spouse employed under the public sector undertaking may
apply to the competent authority and said authority may post
the said officer to the station, or if there is no post under the
PSU in that station, to the State where the other spouse is
posted.
(vi) Where one spouse belongs to a central service and other
spouse belongs to PSU:
The spouse employed under the PSU may apply to the
competent authority and the said authority may post the officer
to the station, to the State where the other spouse is posted.If,
however, the request cannot be granted because the PSU has
no post in the said station/State, then the spouse belonging to
the central services may apply to the appropriate cadre
controlling authority and the said authority may post the said
officer to the station or if there is no post in that station, to the
state 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 to
the competent authority may post the said officer to the station
or if there is no post in that station to the State where the other
spouse posted."
While recognising that the above illustrations would not cover
every case, the OM envisaged that each case not covered by the guidelines
would be considered bearing in mind the underlying object of ensuring
that spouses are, as far as possible and within the constraints of
administrative convenience, posted at the same station.
(ii)
An OM12 dated 29 May 1986 was issued by the DoPT
which dealt with the seniority of the persons absorbed after
being on deputation;
12 No.