Central Administrative Tribunal - Delhi
Ms. Sangita Kanaujia vs Union Of India on 14 August, 2012
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 462/2012
M.A. No.379/2012
M.A. No.406/2012
M.A. No.876/2012
Order reserved on 24. 05. 2012
Order pronounced on 14.08. 2012
Honble Mr. George Paracken, Member (J)
Honble Mr. Sudhir Kumar, Member (A)
1. Ms. Sangita Kanaujia, Superintendent
O/o The Chief Commissioner,
Central Excise (Delhi Zone)
C.R. Building, I.P. Estate,
New Delhi.
2. R. Jayashree Superintendent
O/o The Chief Commissioner,
Central Excise (Delhi Zone)
C.R. Building, I.P. Estate,
New Delhi.
3. Shri Manish Aggarwal, Superintendent
O/o The Chief Commissioner,
Central Excise (Delhi Zone)
C.R. Building, I.P. Estate,
New Delhi. -Applicants
(By Advocate: Shri Naresh Kaushik with
Ms. Amita Kalkal)
Versus
1. Union of India
Represented by its Secretary,
Department of Revenue,
North Block, New Delhi-110 001.
2. The Chief Commissioner,
Central Excise (DZ),
C.R. Building, I.P. Estate,
New Delhi-110 002.
3. Devender Kumar Singh (Superintendent),
D-72, Ground Floor, South City-II,
Gurgaon-122018. -Respondents
(By Advocate: Shri R.V. Sinha for Respondents 1&2,
Respondent No.3 present in person)
O R D E R
Mr. Sudhir Kumar, Member (A):
The applicants of these OAs were earlier beneficiaries of Government instructions dated 27.03.2009 and 07.08.2009 allowing Inter-Commissionerate Transfers (ICTs, in short) of Group-B, C & D employees of the Central Board of Excise and Customs (CBEC, in short), Govt. of India, on Spouse ground, from under the control of one Cadre Controlling Authority to the control of another, without any loss of seniority. They are now before this Tribunal because through Establishment Order No. 29/2012 dated 03.12.2012, they have been transferred and repatriated back to their Parent Cadres under their earlier Parent Cadre Controlling Authorities, which they claim is in violation of the Government instructions in this regard, and they want to remain in Delhi Zone itself, and have prayed for the following reliefs and interim reliefs-
(a) quash the impugned Establishment order No.29/2012 dated: 03.02.2012 whereby the said order has been passed in violation of the order of this Honble Tribunal date: 13.7.2011 and the applicants have been wrongly, illegally, unjustifiably relieved without affording opportunity to represent against the said order declaring repatriation of the applicants illegal and unjust;
(b) Pass an order declaring the F.No. A.22015123/2011-Ad.III.A dated: 27th October 2011 inapplicable being prospective and cannot be applied to relieve the applicants to their parent zones;
(c) directing the Respondent No.1 to retain the applicants in Delhi Zone as the applicants have been allowed to Transfer prior to 27.10.2011 and the
(d) Direct the Respondent no.1 to relax Recruit Rules in the exceptional circumstances which are present in the present case if it is so found;
(e) Direct the Respondent no.1 to divert the post from the parent zones of the applicant and merge the same in the Delhi Zone as has been done previously.
Interim Relief The applicants humbly pray that this Honble Tribunal may be pleased to pass an ex parte ad interim order thereby staying operation of the impugned Order and/or keeping relieving of the Applicants in abeyance till the final decision on the present application of the applicants.
2. The case was mentioned before the Honble Chairman in Court Hall No.1 on 10.02.2012, and ordered to be listed on 13.02.2012. On 14.02.2012, the Single Bench hearing the case considered the facts of the case in detail and decided to refer it to a Division Bench as the case involved a policy matter, and such cases are listed before Division Bench. On 15.02.2012, the Division Bench issued orders staying the operation of the impugned order dated 03.02.2012 till the next date of hearing. On 29.02.2012, the Bench which heard the case noted that the order of stay granted by the Bench on 15.02.2012 did not bear the reasons which had prevailed with the Bench for the purpose of granting ex-parte interim stay of a mandatory nature, and therefore, transferred the case back to the same Bench. The same Bench heard the case on 02.03.2012 and 15.03.2012, and on the later date, i.e., 15.03.2012, MA No.709/2012 filed for impleadment of private respondents was allowed, and the case was ordered to be listed for final disposal. The case could not be heard by that Bench on 29.03.2012 in view of the request of the learned counsel for the applicant. The Constitution of the Bench changed from 30.03.2012 onwards, and the case was ordered for being heard by any other Bench as per roster. But after its being listed before another Bench on 02.04.2012, 09.04.2012, 26.04.2012 and 01.05.2012, the case came back to be listed before the present Bench on 10.05.2012, since it was observed by the other Bench that it would be appropriate if the Bench which had passed the judgment dated 13.07.2011 hears this case.
3. On 13.07.2011, the OA-3305/2010 with MA No.2517/2010 along with OA No.4401/2011 had been decided by a Bench including one of us, basing its judgment on the decision of the Ernakulam Bench of this Tribunal dated 16.05.2011 in OA No.643/2009 & other connected cases, in which the Ernakulam Bench had decided as follows:-
24. From the arguments advanced by the learned for the parties and on perusal of the various judgments of the Apex Court regarding transfers and seniority referred to above, it is abundantly clear that when a transfer is ordered from one cadre to another in public interest, the transferee shall carry with him his original seniority when posted in the new cadre and if the transfer is not in pubic interest but on the request of the employee concerned, he will loose his seniority in the parent cadre and join the new cadre with bottom seniority i.e. below the last employee in the seniority list of that cadre. The transfers on public interest are ordered by the Government in the larger interest of the public and based on the conditions of service such as All India transfer liability etc. The transfers on 'spouse ground' and on 'compassionate ground' are not automatically made by the Government but they are made on the requests of the employee concerned. Now the question is whether any 'public interest' is served by transferring and posting the spouse at the station where the other spouse is posted. It is purely a policy matter which the Government has to take after due consideration of all the relevant facts including the legal rights of others who may be adversely affected. The policy of the Government of India so far in general is that in the case of Inter-cadre transfers made on the request of the employee concerned even on 'spouse ground' or on 'compassionate ground', the transferred employee would loose the seniority position enjoyed by him in his parent cadre. Same was the position maintained so far by the respondents themselves in the matter of Inter-Commissionerate Transfers of their Group-B, C and D officials. The impugned orders granting ICTs to Group-B, C and D employees beyond the Commissionerate having common cadres i.e. from one cadre controlling authority to another, without any loss of seniority stating that such transfers are made in public interest, and, therefore, there is no question of any loss of seniority is a shift in policy. The respondents have issued those orders by interpreting the DoPT's O.M.No.28034/7/86-Estt(A) dated 3.4.1986 as amended from time to time which provide that "a husband and wife are, as far as possible, and within the constraints of administrative convenience, posted at the same station" whether the CBEC is empowered to take such a policy decision or not. The questions those would arise in this regard are (i) whether the CBEC's aforesaid interpretation of the DoPT's order is with the prior approval of the DoPT and if not (ii) whether the CBEC has the competence to make such an interpretation. The records made available by the respondents show that the advice of the DoPT was not obtained by them before they have issued the impugned orders. The CBEC is only a subordinate office under the Department of Revenue which in turn is under the Ministry of Finance, Government of India. Clause (3) of Article 77 of the Constitution of India has provided for the Allocation of Business of India among the Ministries. In terms of the aforesaid provision of the Constitution, the President has promulgated "the Government of India (Allocation of Business) Rules, 1961". "Recruitment, Promotion and Morale of the Services" is one of the businesses allocated to the Department of Personnel and Training under the Ministry of Personnel, Public Grievances & Pensions and the "general question relating to recruitment, promotion and seniority pertaining to Central Services except Railway services and under the control of Department of Atomic Energy, the services under the Department of Defence Research and Development, the erstwhile Department of Electronics, the Department of Space and Scientific and Technical services under the Department of defence Research and Development" come under the same Head. It is, therefore, seen that the policy decision regarding the seniority pertaining to the Central Services is within the exclusive jurisdiction of the DoPT. Individual Ministries/Departments/offices cannot be allowed take its own separate decisions regarding the seniority of their employees without the concurrence of the DoPT. Otherwise, there will be chaos in the matter of personnel administration in the various Ministries/Departments/Subordinate Offices of the Government of India. The applicants in these O.As have not made the DoPT a respondent. However, this Tribunal has directed Mr Millu Dandapani, the learned ACGSC for respondents in O.A.835/2009 to ascertain from the DoPT whether they have to say anything in the matter. However, in spite of his best efforts, they did not give any assistance in the matter.
25. In the above facts and circumstances of the case, we consider that it is premature for this Tribunal to adjudicate upon the question whether the ICT on 'spouse ground' and on 'compassionate ground' is in public interest or not. We, therefore, allow O.As 643/2009, 650/2009 and 835/200 and dismiss O.A.400/2010. Consequently, we also quash and set aside the impugned orders F.No.A.22015/19/2006-Ad.III.A dated 27.3.2009, letter F.No.A.22015/11/2008-Ad.III.A dated 29.7.2009 and letter F.No.A.22015/18/2009.Ad.III.A dated 7.8.2009 to the extent that the ICTs of Group-B, C and D officers on 'spouse ground' as well as on 'compassionate ground appointments' have been allowed without loss of seniority. However, the respondent-CBEC is at liberty to take up the matter with the DoPT, Government of India to take appropriate decision in the matter.
(Emphasis supplied)
4. As a result, on 13.07.2011 in OA Nos.3305/2010 & 4401/2012, it was ordered as follows:-
4. Learned counsel, Shri R.V. Sinha appearing on behalf of the respondents has not disputed that these cases are covered by the aforesaid Order of this Tribunal as submitted by the learned counsel for the applicants.
5. In view of above facts and circumstances, as the aforesaid letters dated 27.3.2009 and 7.8.2009 have already been quashed and set aside by the Ernakulam Bench of this Tribunal in OA No. 643/2009 and other connected cases decided on 16.5.2011, we do not think it necessary to issue any further directions in these cases. However, we make it clear that the directions contained in the aforesaid Order shall apply in these cases also.
6. With the aforesaid directions, these OA are allowed. There shall be no order as to costs.
(Emphasis supplied).
5. In the order dated 13.07.2011, the aspect that the letters/instructions/orders dated 27.03.2009, 29.07.2009, and 07.08.2009 had been quashed and set aside by the Ernakulam Bench only to the stated limited extent had not been repeated and reiterated in as many words, though a combined reading of the two orders makes it very clear.
6. Thereafter, the present case was heard in great detail, and reserved for orders on 24.05.2012.
7. The applicants of this case have in Para 4.1 cited the very same letter dated 27.03.2009, which has been partially quashed and set aside by the Ernakulam Bench of this Tribunal, (as cited in para 3/above), and had also been produced at Annexure A-2 in the present OA. In Para 4.2 of their OA, the applicants have submitted that they were working as Superintendent in their parent zones, and opted to avail the relaxation on the basis of the instructions issued on 27.03.2009, since partially quashed and set aside by the Ernakulam Bench of this Tribunal, and pursuant to their request/option, they were transferred by Respondent No.1 from their respective parent zones to Delhi Zone. The applicant No.1 was promoted as Superintendent in her parent cadre on 19.06.2009, and was transferred to Delhi Zone on 08.10.2009, the applicant No.2 was promoted as Superintendent in her cadre on 02.04.2008, and was transferred to Delhi Zone on 07.10.2009, and applicant No.3 was promoted as Superintendent in his cadre in October, 2007, and joined duty on transfer to Delhi Zone under the relaxation policy (since partially quashed and set aside) on12.03.2010. In Paras 4.3 & 4.4 of the OA, the applicants have themselves noted and accepted that the Ernakulam Bench had on 16.05.2011 partially quashed and set aside the Instructions dated 27.03.2009 (as cited in para 3/above), which order was reiterated by this Principal Bench also on 13.07.2011 (as cited in para 4/above).
8. In Para 4.5 of the OA, it has been submitted that the affected parties of the order dated 13.07.2011 passed by the Principal Bench in OA Nos.3305/2010 and 4401/2010, had filed a Writ Petition in the Honble High Court of Delhi, and the Honble High Court has vide its order dated 23.08.2011 (Annexure A-4 of the OA) disposed of the Writ Petition (Civil) No.6086/2011, granting liberty to the CBEC to take up the matter with the DOP&T, Govt. of India, to take appropriate decision in the matter. In Para-4 of the order of the Honble High Court, it was noted as follows:-
4. It is apprehended by Mr. Ashutosh, learned counsel for the petitioner that a decision might be taken which could adversely affect the petitioner. Be it noted, neither the Ernakulam Bench nor the Tribunal in the present case has expressed any opinion on the merits. Matter has been left to the competent authorities. If any adverse decision is taken, liberty is granted to the petitioner to approach the Tribunal as advised in law.
The Writ Petition is accordingly disposed of.
(Emphasis supplied).
9. Since the matter had been left to the Competent Authorities by the Honble Delhi High Court also, the respondent authorities have thereafter issued the Annexure A-5 dated 27.10.2011, laying down the policy regarding Lifting of ban on Inter Commissionerate Transfers (ICTs) in respect of willing officers in Group B, C & D posts under the CBEC, by stating as under:-
2. On consideration of all aspects in the matter of ICT, it has been decided by the Board now to lift the ban on ICT with immediate effect. Accordingly, any willing Group B, C employee and the erstwhile Group D employee may apply for transfer from the jurisdiction of one Cadre Controlling Authority (CCA) to another CCA subject to availability of vacancy and on the following terms & conditions:
(i) The concerned two Cadre Controlling Authorities should agree to the transfer.
(ii) The transferee will be placed below all officers appointed regularly to that post/grade on the date of his/her appointment on transfer basis in terms of Pant 3.5 of DOP&Ts O.M. dated 03.07.1986. In other words, such a transferee will be junior to those regularly appointed officers prior to his/her transfer. However, such transferred officer will retain his/her eligibility of the parent Commissionerate for his/her promotion to the next higher grade, etc.
(iii) On transfer he/she will not be considered for promotion in the old Commissionerate.
(iv) He/She will not be entitled to any joining time and transfer traveling allowance.
(v) Under no circumstances, request for ICT should be entertained till the officer appointed in a particular Commissionerate/post completes the prescribed probation period.
(vi) The seniority of the officers who were allowed ICT earlier by the various Cadre Controlling Authorities on the basis of Boards letters F.No.A.22015/19/2006-Ad.III.A dated 27.03.2009; F.No. A. 22015/11/2008-Ad.III.A dated 29.07.2009 and FNo. A.22015/15/2010- Ad.III.A dated 09.02.2011 shall be fixed as per the present instructions.
(vii) Officers who are presently working on deputation basis from their parent Commissionerate to any other Commissionerate/Directorate and are willing to avail of the ICT in future will have to revert back to their parent Commissionerates first and apply afresh for ICT. The officers who have been continuously on deputation and have been absorbed on ICT during the interim period from 19.02.2004 (i.e. the date from which the ban became effective) till date, their seniority will be fixed from the date of their joining on deputation in the transferred Zone/Commissionerate.
(viii) A written undertaking (in the enclosed format) to abide by the requisite terms and conditions will be obtained from the officers before the transfers are actually effected.
(ix) All pending Court Cases where seniority protection/ICT has been challenged may be handled appropriately in terms of these instructions and necessary compliance furnished to the Board in due course.
10. The contention of the applicants is that the impugned order dated 03.02.2012 now passed by the respondents, repatriating them to their respective Parent Commissionerate/Cadre Controlling Authorities, is in violation of the orders passed by this Tribunal, as well as the Honble High Court. They represented against the impugned order through their representation dated 08.02.2012 (Annexure A-6), but then without waiting for any response to their representation, approached this Tribunal by presenting this OA in this Tribunal on 09.02.2012, which was mentioned on 10.02.2012, but it was not pointed out that their representation to the concerned authorities had been submitted only a couple of days back.
11. The applicants have taken the following grounds for challenge to the impugned order:-
i) Firstly, the applicants have submitted that the directions of this Tribunal dated 13.07.2011 have been misunderstood and not considered by the respondent CBEC while passing the impugned order.
ii) Secondly, they have taken the ground that the order dated 27.10.2011 (Annexure A-5) provides for re-fixing of seniority on the basis of CBECs order/instructions dated 27.03.2009 but does not provide for any repatriation, and, therefore, it is not applicable in the case of the applicants.
iii) Thirdly, the applicants have submitted that the respondents can only pass the orders through a Competent Authority, which order can apply prospectively and not retrospectively.
iv) Further, the ground has been taken that the persons who have been permitted to work in Delhi Zone on deputation basis as per CBECs orders dated 19.02.2004 ought also to have been repatriated, which has not been done. They have further taken the ground that though this Principal Benchs order dated 13.07.2011 had quashed CBECs order dated 27.03.2009, and as a result only the letter dated 27.10.2011 (Annexure A-5) re-produced above was issued, no instructions to relieve officers in any grade were passed in the aforesaid letters.
v) It was further submitted that allowing applicants, who are Superintendents transferred under ICT on spouse ground, to be ordered to be repatriated back to their parent Zones, is beyond the jurisdiction of the Cadre Controlling Authority of Delhi Zone, and the Cadre Controlling Authority is not competent to either cancel their ICT on spouse grounds or to treat their services rendered in Delhi Zone to have been on deputation basis. They had submitted that the action of their repatriation taken by the respondents is arbitrary, unreasonable, and is in violation of Articles 14 & 16 of the Constitution of India and the impugned repatriation order has been issued with a malafide intention, and is arbitrary.
vi) It was further submitted that the order/instructions dated 27.03.2009, which was partially quashed and set aside by the Ernakulam Bench of this Tribunal, and which judgment was followed by this Principal Bench on 13.07.2011, concerned the Inspectors only, and, therefore, the Superintendents, who were allowed ICT transfers on spouse grounds, without disturbing their seniority, could be so continued, and ought to have been at least given an opportunity to place their views on the issue of seniority. In the result, the applicants have prayed that the impugned order is unjust, unfair, illegal and is against the principles of natural justice, and is not sustainable, in view of the fact that the Central Government can in such kind of facts, and circumstances of special nature, in public interest, relax the provisions of even the Recruitment Rules.
12. On 13.02.2012 itself, the applicants had filed a Miscellaneous Application No.406/2012, seeking to bring on record an additional ground (XV), and an additional prayer 8(f), but that M.A. was not disposed off, and has survived for being decided with the main OA itself, which submissions were as follows:-
Additional Ground XV. Because Clause-VII of the Circular dated 27.10.2011 is arbitrary, illegal and unconstitutional and is liable to be quashed as such for the reason that, it seeks to apply the policy of ICT transfer on spouse ground retrospectively, taking away the vested rights, defeats the legitimate expectations of the applicants that their cases would not be reopened, arbitrary for the reason that it has been issued without consultation with DOP&T and in facts seeks to violate and defeat the policy of DOP&T as laid down on specific recommendations of 4th and 5th Pay Commissions in order to cater to social welfare public purpose by allowing transfer on the grounds of spouse consideration.
Additional prayer:
(f) quash the impugned clause VII of the circular dated 27.10.2011 as illegal, arbitrary and unconstitutional.
13. Since no notice was issued on this MA, the official respondents have not submitted any specific reply to this MA. The reply of the official respondents was filed on 16.03.2012 denying that the applicants have any cause of action to maintain the OA, and that any of their rights had been violated or infringed in any manner whatsoever, which may require the exercise of its power of judicial review by this Tribunal.
14. It was explained by the Respondents that the applicants are holders of Group B Gazetted Posts having an All India Seniority List, which is one of the feeder posts for Group A services on promotion basis. It was submitted that there has never been a policy of ICT postings of Group B Gazetted Superintendents in the department, as clarified by the CBEC through their letter dated 15.02.2012 (Annexure R-1), in which it was clarified that the instructions contained in the order dated 27.10.2011 (Annexure A-5 of the OA) are applicable to employees in Group B Non-Gazetted, Group C and the erstwhile Group D employees only, and are not applicable to Group B Gazetted cadres. It was, therefore, submitted that in view of this Clarification dated 15.02.2012, there is no question of the applicants surrendering their seniority in the case of their posting/transfer to any of the Commissionerates of the Department.
15. It was further submitted that the applicants have concealed the fact of their having been relieved on 03.02.2012, and that they had obtained the interim orders dated 15.02.2012 in a fraudulent manner, by misrepresenting or concealing the truth, and the OA is, therefore, liable to be dismissed.
16. On the points of law, it was sought to be clarified by the Respondents that the Guidelines dated 27.10.2011 {Annexure A-5 of the OA cited in para-9 (supra)} were issued by the CBEC after taking into consideration the order dated 16.05.2011 passed by the Ernakulam Bench of this Tribunal (Supra) as well as the order dated 13.07.2011 passed by this Principal Bench (supra). It was submitted that it has been further amply clarified that these instructions dated 27.10.2011 are not applicable to Group B Gazetted cadres.
17. It was submitted that both the Ernakulam Bench and this Principal Bench had, apart from partially quashing and setting aside the Boards letter dated 27.03.2009, had also partially quashed and set aside the Boards subsequent letter dated 07.08.2009, vide which it was clarified by the CBEC that the relaxation in ban on ICT on spouse ground vide instructions dated 27.03.2009 shall be applicable to all categories of employees, i.e., DR quota as well as promotion quota. Since this Principal Bench had followed the orders of Ernakulam Bench, and the Delhi High Court had upheld the order of the Principal Bench dated 13.07.2011, it was submitted by the Respondents that the Cadre Controlling Authority, Delhi Zone, is the Competent Authority, and is empowered to take decision in cases where seniority protection under the ICT has been challenged. It was submitted that since the matter relating to fixation of seniority of Superintendents transferred on ICT on spouse ground is beyond the jurisdiction and control of Cadre Controlling Authority of Delhi Zone, the applicants were repatriated to their parent zone. It was, therefore, submitted that the seniority of the officers transferred on ICT on spouse ground has, therefore, to be fixed as per the guidelines contained in CBEC letter dated 27.10.2011 (Annexure A-5) which has been sought to be impugned by the applicants through M.A. No.406/20112, read with para 3.5 of the DOP&Ts O.M. dated 03.07.1986, wherein it has been clarified that the transferee will be placed below of officers appointed regularly to that post/grade on the date of his/her appointment on transfer basis.
18. It was submitted that in the instant case, the seniority of the present three applicants could not be fixed, as an important fact, which was not brought to the knowledge of the Cadre Controlling Authority, Delhi Zone by the applicant No.1, was that she had been promoted to the grade of Superintendent in her parent cadre only on an ad hoc basis, w.e.f. 19.06.2009, and at the time of her ICT and joining on 08.10.2009 in the Delhi Zone, she was still working on the post of Superintendent on ad hoc basis only. It was submitted that an officer who has been promoted on ad hoc basis to a higher post/grade, cannot be considered as promoted or transferred on the same post/grade in other department, and if he/she gets transferred to such other department, he/she will have to be treated as regular on the lower post/grade, and his/her seniority will be fixed below all officers appointed regularly to that lower post/grade on the date of his/her appointment on transfer basis.
19. It was pointed out that as per the Recruitment Rules for the posts of Superintendent notified on 17.12.1986, 95% of the total allocated strength of Superintendents in the CBEC has to be filled by promotion from the feeder cadre, i.e., Inspectors, and 5% through Direct Recruitment, and for making such Direct Recruitment consultation with UPSC is necessary (Annexure R-5) dated 18.06.2004. It was submitted that since it has been clarified through Annexure R-I dated 15.02.2012 that the letter dated 27.10.2011 (Annexure A-5) is applicable only to employees in Group B Non-Gazetted and Group C and D posts, the benefit of ICT cannot be made applicable to Superintendents of Customs and Central Excise Department, who fall under the category of Group B Gazetted cadres.
20. It was further submitted that if the applicants are allowed to remain in Delhi Zone, they would be consuming a regular post in the grade of Superintendent in the Delhi Zone in spite of the fact that the applicant No.1 was merely holding the post of Superintendent on ad hoc basis in her parent zone of Bhopal, and the rights of promotion of the eligible candidates within Delhi Zone, would be denied. The respondents, thereafter, cited the case of Inspector Shri Sanjeev Kumar Gautam, who was the applicant in the common order dated 13.07.2011 passed by the Principal Bench (supra), and whose case was disposed of by the Honble Delhi High Court through the judgment dated 23.08.2011 (supra), because of which he was reverted to the post of Inspector w.e.f. 01.11.2011, which reversion also had been challenged by him again before this Tribunal in OA No.4008/2011, which was disposed of with directions to the applicant to make a representation to the Competent Authority. It was further submitted that with the seal of approval of the Honble Delhi High Court, the judgments passed by the Ernakulam Bench on 16.05.2011 (supra), and by the Principal Bench on 13.07.2011 (supra), have become final, and the present applicants of this OA could have agitated their case in those cases which they failed to do so. In the result, it was prayed that the OA is devoid of any merits and deserves to be dismissed with costs against the applicants.
21. The Intervenor Devender Kumar Singh, whose MA No.709/2012 praying for his being allowed to be impleaded had been allowed by this Tribunal, filed his separate objections on 22.03.2012.
22. The Intervenor Respondent No.3 submitted that the Recruitment Rules of Superintendent of Central Excise (Annexure R-5 of the official respondents reply dated 17.12.86) do not have any provisions which allow for their transfer from one zone to the other. It was further submitted that the DOP&Ts Circulars for considering transfers of spouses are mere guidelines, and do not apply to inter cadre transfers where each zone has its own and independent seniority list/promotions.
23. It was further submitted by the Intervenor respondent that the issue is hit by Res-judicata, and in support of his contention he has cited the following cases on the point of res-judicata, which being well known cases, need not be discussed here in detail:-
i) Krishna Behari Roy vs. Bunwari lal Roy (1875) ILR (IC-144);
ii) Ishwar Dutt Vs. Land Acquisition Collector & Anr. (2005) 7 SCC 190;
iii) Devilal Modi Vs. Sales Tax Officer, Ratlam & Ors.- AIR 1965 SC 1150;
iv) Daryao Vs. State of U.P., 1962-1 SCR 575; (AIR 1961 SC 1457) and;
v) K.K. Modi Vs. K.N. Modi and Ors- (1998) 3 SCC 573.
24. It was further submitted that principle of estoppel also operates against the present applicants, as they were parties in the proceedings before this Tribunal in the OA in which the common orders dated 13.07.2011 in OA Nos.3305/2010 and 4401/2010 (supra) were passed. He, therefore, contended that the applicants are now estopped from re-agitating the matter, which has already been decided by this Court, as it would be an abuse of the process of law. The further submission was made by the Intervenor respondent that the vacancies of Superintendents can only be filled 95% by promotion, and 5% by direct recruitment in consultation with the UPSC, and, therefore, it follows that any such vacancies cannot be filled by deputation of a Superintendent from another zone. As Annexure R-1 of his reply, the Intervenor respondent No.3 had submitted the RTI reply obtained by him that the Recruitment Rules of Superintendent of Central Excise do not allow Inter Zonal Transfers, and he had submitted that never in the past, the department has effected ICT in the cadre of Superintendents of Central Excise, only due to the specific embargo in the relevant Recruitment Rules.
25. Coming to the specific cases of transfers sought on the spouse ground, the Intervenor/Respondent No.3 cited the case of Bank of India Vs. Jagjit Singh Mehta (1992) AIR 519, 1991 SCR Supl. (2) 492) in which the Honble Apex Court has decided that only two conditions ought to be fulfilled, which have to be taken into consideration when a transfer of spouse has to take place, the first being that such transfer should not be detrimental to the administrative needs, and the second being that the transfer should not be detrimental to the claim of other employees. It was submitted that this decision was reiterated by the Apex Court in Union of India & Others Vs. S.L. Abbas (1993 AIR 2444, 1993 SCR (3) 427). On the point of seniority retention, in the case of request transfers, it was submitted that in the case of K.P. Sudhakaran & Anr. Vs. State of Kerala & Ors AIR 2006 SC 2138, the Honble Apex Court has held as follows:-
i) a government servant getting transferred to another unit or department for his personal considerations, cannot be permitted to disturb the seniority of the employees in the department to which he is transferred, by claiming that his service in the department from which he has been transferred, should be taken into account.
ii) It has been further held that a person appointed to a particular post in a cadre, should know the strength of the cadre and prospects of promotion on the basis of the seniority list prepared for the cadre and any addition from outside would disturb such prospects. The matter is, however, governed by the relevant service Rules.
26. The Intervenor/Respondent No.3 further pointed out that the orders of ICT transfer of the applicant No.1 to Delhi Zone on 19.06.2009 were issued in violation of the relevant Rules, since she was still in substantive capacity an Inspector in her parent zone, and was only an ad hoc Superintendent. It was further submitted that the applicant No.3 had also been transferred to Delhi Zone as Inspector only, on ICT basis, through order dated 18.12.2002, and had joined the Delhi Zone thereafter. The Intervenor Respondent also tried to bring out the legal distinction between the words absorption, deputation and transfer in support of his case, and submitted that when it has been clarified by the CBEC that the provision of ICT is not available to Group B Gazetted officers, then any transfer which had taken place earlier on the basis of any wrong interpretation of the policy would become infructuous.
27. It was further submitted by the Intervenor Respondent No.3 that the applicants have disturbed the prospects of promotions of the Inspectors in respect of the Delhi Zone, and that he would have been promoted as Superintendent on 01.12.2010, instead of 01.02.2011, had the applicants not been on undeserved deputation in the Delhi Zone. It was submitted that his promotion with all other Inspectors, has been delayed by the Official Respondents by placing the applicants of this OA in the Delhi Zone earlier. He had, therefore, submitted that since the Government has not expressly exercised the power to relax the provisions of the Recruitment Rules for the posts of Superintendents of Central Excise, the Inter Zonal Transfers, as prayed for by the applicants, could not have been allowed, and he had, therefore, prayed that the OA be rejected.
28. In support of his contentions, as Annexure R-5, he had produced extracts from the Hand Book on Recruitment Rules issued by the DOP&T Establishment Division in 1993, in which the terms of Transfer on Deputation have been defined in Para 3.12.4 and 3.12.5 of the Handbook.
29. The applicants filed a rejoinder on 26.03.2012. It was submitted that the official respondents have themselves admitted that there is no policy so far as ICT transfers of Group B Gazetted posts are concerned. It was, therefore, submitted that arbitrariness has crept in because of such lack of policy, and in such circumstances, the respondents were not justified in either passing the impugned order, or relieving the applicants.
30. It was further submitted that the clarification issued on 15.02.2012 cannot be allowed to be applied retrospectively, and if transfers on spouse grounds are allowed for Group A, Group B (Non-Gazetted) and Group C & D officers/officials, denying the same to Group B on the ground that there is an absence of a policy in this regard militates against the Government of Indias avowed policy of posting of spouses at the same station. It was also submitted that the DOP&T had not been properly consulted by the respondent department. It was submitted that both the Ernakulam Bench and this Principal Bench of the Tribunal had quashed the CBEC letter dated 27.03.2009 only to the extent of ICT transfers being given without loss of seniority, and the main issue of as to whether a transfer on spouse ground amounts to transfer in public interest or not, was yet to be taken up and decided by the CBEC, in consultation with the DOP&T.
31. It was further submitted that the CBEC Circular dated 27.10.2011 (supra), re-produced in para-9 above, and sought to be impugned through MA No.406/2012, does not discriminate between Gazetted and Non-Gazetted employees, and neither does it differentiate between transfers on the basis of direct recruitment quota or promotional quota. It was further prayed that the clarificatory order dated 15.02.2012 cannot therefore be allowed to have effect on the case of the applicants, since it was issued subsequent to the passing of the stay order in the present OA filed by the applicants and was passed just to defeat the present proceedings, and to undo the effect of the stay order in the present OA.
32. It was further submitted that the respondents have mala fide intention against the applicant No.1, and she was not regularized prior to the regularization of the other promotees, who were promoted subsequent to her promotion, and that she had still not been regularized. It was submitted that the impugned relieving order is in gross violation of the Ministry of Finance instruction dated 20.05.1980, read with the instructions dated 15.01.1998, where in the case of lien of the transferees, it has been explicitly mentioned that after the expiry of two years, the lien in the parent cadre will be automatically terminated, and that the transferee shall have no right to get repatriated to the old parent cadre after that. It was further submitted that the Circular dated 27.03.2009 was meant for all categories of employees, i.e., DR Quota as well as Promotion Quota employees, and it was only partially quashed by this Tribunal, only to the extent of retention of seniority, but that the respondents have misinterpreted the judgment, and, therefore, the applicants had prayed that since the clarification now issued states that the Circular dated 27.10.2011 does not apply to Group B Gazetted Officers, they would continue to be governed by the erstwhile order on ICT transfers on spouse grounds under the Circular dated 27.03.2009.
33. It was further submitted that there is still ambiguity in the matter whether transfer of Group B Gazetted cadres on spouse grounds amounts to be in public interest or not. It was, therefore, submitted that without a decision being taken on the issue as to whether transfer on spouse ground amounts to transfer in public interest or not, by the CBEC, in consultation with DOP&T, the relieving order dated 03.02.2012 was illegal, and relieving of the applicants was pre-mature and unwarranted. It was submitted that action of the respondents goes against the very principle and spirit of Government of Indias policy of encouraging women to join Government services, and on posting of husband and wife in the same station. It was further prayed that the applicants can still be accommodated in Delhi Zone by relaxing the norms, by utilizing the Recruitment Rules of Superintendents, which allow 5% Superintendents to be appointed directly in consultation with the UPSC. It was denied that the case of Sanjeev Kumar Gautam is relevant in the instant case, as he was a Group B Non-Gazetted Staff, who has sought ICT as an Inspector, and had then later been promoted as Superintendent in the Delhi Zone, and had filed the case, and he was placed at bottom seniority. In this connection, it was submitted that the present applicants do not seek seniority, and have given willing consent to forego their seniority in their parent Commissionrates. It was, therefore, prayed that the OA be allowed with exemplary costs, due to inaction/wrongful action on the part of the respondents, and misinterpretation of the law by them, and in order to alleviate hardships of the families of the applicants.
34. Another MA No.876/2012 was filed on 26.03.2012 seeking to implead DOP&T as a party, but no orders were passed in that MA, and that MA also came to be reserved for being decided with the main OA.
35. On 28.03.2012, the applicants filed a rejoinder to the reply filed by the Intervenor private respondent/Respondent No.3 more or less reiterating their grounds already described above.
36. Heard in great detail.
37. During the detailed arguments, the learned counsel for the applicants filed a spiral binding compilation of the documents which he wanted to rely upon, as follows, which have all been since considered by us:-
S.No. Subject 1 Recruitment Rules of Inspectors of Customs & Central Excise 2 Recruitment Rules of Superintendents of Customs & Central Excise 3 CBEC-Inter-Commissionerate (ICT) Ban imposed 19-2-2004 4 CBEC-ICT Ban Lifted on spouse grounds 27-3-2009 5 CBEC-ICT clarification dated 7-8-2009 6 CBEC-New ICT order post CAT(PB) Judgement dated 27-10-2011 7 CBEC-New ICT not applicable to Gr.B dated 15-2-2012e 8 CAT-Principal Bench Judgement 9 CAT-Ernakulam Judgement 10 DOPT-Posting of Husband-Wife at the same station dated 3-4-86 11 DOPT Posting of Husband-Wife at the same station dated 12-6-97 12 DOPT-Posting of Husband Wife at the same station 30-9-2009 13 DOPT-Mandatory consultation for implementing orders dated 1-5-2000 14 CBEC-ICT Joining Orders of applicants granting LIEN 15 CBEC-Transfer Policy of Group-A Officers 16 DoPT-Instructions on seniority dated 11-11-2010
38. The arguing counsels and the Intervenor/Private respondent also filed copies of documents/judgments in support of their contentions. MA No.876/2012 was filed praying for allowing DOP&T to be made a party respondent, which was not decided.
39. In support in their contentions, the respondents had cited before us Union of India and Others vs. A.L. Abbas (1993) 4 SCC 357. In paragraph-7 of that judgment, the Honble Apex Court has held as follows:-
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, 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.
40. It is, therefore, clear that the guidelines that as far as possible, husband and wife must be posted at the same place, do not confer any legally enforceable right upon the Government employees, and persons who have a liability to be transferred either within the Zone, or anywhere in India, can only make requests for such transfers on spouse grounds, and the authorities must then consider such requests on compassionate basis, and accommodate the requests as far as possible under the administrative circumstances prevailing in the Cadre.
41. In the case of Kendriya Vidyalaya Sangathan vs. Damodar Prasad Pandey and others AIR 2004 SC 4850, the Honble Apex Court has held that the plea of the respondents that he and his wife should be posted at the same place was not acceptable, since the situation where the husband and wife can be kept together at the same place would always depend upon the availability of vacancies and administrative exigencies, and unless such an order of a transfer is visited by mala fide, and made in violation of operative guidelines, the Courts cannot interfere with it. The Apex Court has, in saying so, relied upon the case of S.L. Abbas (supra) and the case of Ambani Kanta Ray vs. State of orissa, 1995 (Supp.) 4 SCC 169, 1996 AIR SCW 797, and the case of Union of India vs. Janardhan Debanath, AIR 2004 SC 1632, (2004) 4 SCC 245 and National Hydroelectric Power Corporation Ltd. V. Shri Bhagwan, AIR 2001 SC 3309, (2001) 8 SCC 574.
42. Further, it was submitted by the Intervenor Private Respondent No.3 that administrative instructions issued under the executive power of the State for the guidance of the Department have no statutory force, and they do not confer any right on anybody, and nobody can claim any rights on the basis of such administrative instructions. In saying so, respondents had cited the ratio of the Honble Apex Court judgment in G.J. Fernandez v. State of Mysore (1967) 3 SCR 636 : AIR 1967 SC 1753.
43. In the case of Ekta Shakti Foundation v. Govt, of NCT of Delhi AIR 2006 SC 2609 cited by the respondents, in Para-10 the Honble Apex Court has held as follows:-
10. While exercising the power of judicial review of administrative action, the Court is not the appellate authority and the Constitution does not permit the Court to direct or advise the executive in matter of policy or to sermonize any matter which under the Constitution lies within the sphere of the Legislature or the executive, provided these authorities do not transgress their constitutional limits or statutory power. (See Ashif Hamid v. State of J. & K. (AIR 1989 SC 1899), Shri Sitaram Sugar Co. v. Union of India (AIR 1990 SC 1277). The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or is violative of the fundamental rights of the citizens or is opposed to the provisions of the Constitution. Thus, the position is that even if the decision taken by the Government does not appear to be agreeable to the Court it cannot interfere.
44. The issues to be decided by us in this OA can therefore be framed as follows, covering all the grounds raised by the parties on both the sides:-
i) What was the impact of the Ernakulam Bench Judgment dated 16.05.2011, which was followed by this Principal Bench also on 13.07.2011?
ii) Whether, by the operation of these two judgments, upheld by the Honble Delhi High Court also, the two Circulars dated 27.03.2009 and dated 27.10.2011 stand fully repealed or only partially modified?
iii) Whether the respondent Union of India has a policy regarding posting of spouse on the same place as far as possible, as per the submissions and pleadings described in detail above?
iv) Whether there can be a separate policy for Group B Gazetted employees of a particular Ministry/Department or not?
v) When Superintendents have an All India Seniority, as Group B Gazetted Officers, and Cadre Controlling Authorities also maintain their Zone-wise seniority, like in the case of Non-Gazetted staff, how to regulate the distribution of vacancies of Superintendents, and the availability of vacancies and posts for Inter-Commissionerate transfers of Superintendents on spouse grounds etc.?
vi) Whether the Circular/Instruction dated 27.10.2011 is legally valid or not, and is in accordance with the judicial pronouncements of CAT Ernakulam Bench, CAT Principal Bench, and the Honble High Court of Delhi, or not?
vii) Whether while issuing the order dated 27.10.2011, sought to be impugned by the applicants by MA No.406/2012, the respondents have decided as to whether a transfer on spouse ground is in public interest, or in private interest of the people making such requests for transfer on spouse grounds?.
viii) A related issue to be decided is as to whether there can be a separate policy followed by the respondents in the case of cadres which have an All India Seniority, as well as Cadre Controlling Authorities maintaining their Zone-wise seniority, vis-`-vis those Non-Gazetted posts and services where the Cadre Controlling Authorities maintain Zone-wise seniority?
viii) We have to further decide as to whether this OA is hit by the Principles of res-judicata and/or estoppel, as prayed for by the Intervenor/Private respondent No.3?
ix) Another issue to be determined is as to whether the respondents were within their rights and legally correct to have issued the impugned orders?
x) Finally, it has to be decided by us as to whether the Cadre Controlling Authority of Delhi Zone was competent to pass the impugned order dated 03.02.2012, and whether this order is correct or not?
45. The above issues have to be appreciated and decided in view of the Court cases which have preceded this OA, and in view of the case law as decided by the Honble Apex Court laying down the general principles of law. Since the stand and the detailed arguments advanced were more or less in accordance with the pleadings already described above in detail, we can straightaway proceed to try to arrive at the conclusions about the above issues, as enumerated by us above, in the lights of the Rules, Regulations and the case law in this regard.
46. As regards the first issue framed at para 44(i)/above, the Ernakulam Bench had considered that it is premature for this Tribunal to adjudicate upon the question whether the ICTs on spouse ground and on compassionate ground are in public interest or not, and on this ground the concerned OAs pending before the Ernakulam Bench were allowed, and consequently the letters dated 23.07.2009, 29.07.2009 and 07.08.2009 were partially set aside, to the extent that the ICTs of Group-B, C and D officers on spouse ground, as well as on compassionate ground which had been allowed by that set of letters without loss of seniority was declared to be illegal. However, it is seen that the Ernakulam Bench had cited the judgment in the case of Bank of India vs. Jagjit Singh Mehta (supra), wherein a Full Bench of the Honble Apex Court, speaking through Justice J.S. Verma, as His Lordship the former CJI then was, had already considered this issue, and had decided the matter, the Bench had still in the end left the same issue to be decided by the Respondent Authorities. The Apex Courts observations can be reproduced as follows:-
5. There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employers be different. The desirability of such a course is obvious. However, this does not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the decision in accordance with the administrative needs. In the case of All-India Services, the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other's posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees. In such a case the couple have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion or any appointment in an All-India Service with the incident of transfer to any place in India, subordinating the need of the couple living together at one station, they cannot as of right claim to be relieved of the ordinary incidents of All-India, Service and avoid transfer to a different place on the ground that the spouses thereby would be posted at different places. In addition, in the present case, the respondent voluntarily gave an undertaking that he was prepared to be posted at any place in India and on that basis got promotion from the clerical cadre to the Officers' grade and thereafter he seeks to be relieved of that necessary incident of All India Service on the ground that his wife has to remain at Chandigarh. No doubt the guidelines require the two spouses to be posted at one place as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees.
6. The High Court was in error in overlooking all the relevant aspects as well the absence of any legal right in the respondent to claim the relief which the High Court has granted as a matter of course. The High Court's order must, therefore, be set aside.
(Emphasis supplied).
47. It further appears that in the case of Indian Railway Establishment Manual Vol-I 1989 Edition, the general principles concerning request transfers are applied to transfer requests on spouse grounds also, which are that if a person goes on request transfer from one cadre to another, he will occupy the bottom seniority in that new cadre in his own substantive post and grade. The Ernakulam Bench had also cited the Postal Department Rules and the I.P.S Rules also in the same context. However, any person, who is not borne on that cadre as on that date, and is still in the waiting, and is only expecting promotion to that cadre, cannot raise an objection to request transfer of such an employee being granted. The posting and transfer on spouse ground is also equivalent to a transfer on compassionate ground, and as has been held by the Honble Apex Court in K.P. Sudhakaran vs. State of Kerala, AIR 2006 SC 2138, the transferee will be placed at the bottom of the Cadres seniority list, below the junior most in the new cadre or unit, since the transfer at own request cannot disturb the seniority of employees who are already serving in the concerned new cadre or seniority unit (or Zone in the instant case). Therefore, the first issue at para 44(i)/above is answered accordingly.
48. The second issue framed at para 44(ii) is as to whether by the operation of the Ernakulam Bench judgment dated 16.05.2011, (supra), and the Principal Bench judgment dated 13.07.2011, since upheld by the Honble Delhi High Court also, whether the two Circulars dated 27.03.2009 and 27.10.2011 stand fully repealed or only partially quashed and set aside, and hence modified. It is clear from Para-25 of the Ernakulam Bench judgment as cited and re-produced above, the quashing and setting aside of the order dated 27.03.2009 as clarified on 29.07.2009 and 07.08.2009, was only to the extent that the Inter Commissionerate Transfers (ICTs) of Group-B, C and D officers on spouse ground as well as on compassionate grounds had been allowed by those letters & orders to be without loss of seniority. This same judgment was followed by this Principal Bench also on 13.07.2011 in OA No.3305/2010 with OA No.4401/2010, without mentioning about the only partial quashing and setting aside of the letters dated 27.03.2009 and 07.08.2009, in Para-5 of the order as re-produced above. It was further made clear that the directions as contained in the Ernakulam Bench order shall apply in those two cases also. Therefore, it is clear that these executive instructions had not been fully quashed and set aside altogether by this Tribunal, and as upheld by the Honble Delhi High Court also, only the newly introduced concept of Inter Commssionerate Transfers (ICTs) of Group-B, C & D officers on spouse ground as well as on compassionate ground without loss of seniority had been set aside. Therefore, the remaining portions of those instructions would still be applicable.
49. The third issue framed at para 44(iii) above is as to whether the respondent Union of India has a policy regarding posting of spouse on the same place. It is clear from the respondents reply affidavit, as well as the submissions and pleadings, that the recommendations of the 4th, 5th and 6th Central Pay Commissions in this regard have been fully accepted, and the Union of India now has a policy regarding posting of spouse on the same place, as far as possible under administrative considerations. But this policy would still continue to remain subject to the observations of the Honble Supreme Court in the case of Bank of India vs. Jagjit Singh Mehta (supra), and the policy of the Union of India, or the observations of the 6th Central Pay Commission, would continue to be governed by the basic principle of law as laid down by the Honble Apex Court that while choosing the career and a particular service, the couple have to bear in mind the factors that the possibility of the two being posted at different stations may be unavoidable at times, particularly when they belong to different services or cadres, and one of them cannot be transferred to the place of the others place of posting, without sacrifice of the requirements of the administration, and the needs of other employees. The facility of spouse being allowed to be posted at the same place therefore still remains a discretionary facility, and does not give rise to a vested right in favour of the spouse concerned, which right may be liable to be enforced de hors the Rules and Regulations and Administrative requirements and the needs of other employees, as very aptly observed by the Honble Apex Court.
50. The fourth issue framed at para 44(iv)/above is as to whether there can be a separate policy in respect of Group-B Gazetted employees. It is clear that a policy once arrived at has to apply for all purposes and for all categories of employees, and there cannot be a separate policy for Group-B Gazetted employees, different than that of Group B Non-Gazetted employees. However, this stipulation would have to be subject to the All-India or Zone-wise structuring of the concerned cadres. In the instant case the Group-B Non-Gazetted cadres are under the control of Zonal Cadre Controlling Authorities, and the Group B Gazetted cadres have an All India Cadre, further divided into Zonal Cadres, like the I.A.S. & I.P.S. having both an All-India seniority as well as a State Cadre wise seniority. Therefore, the claim for spouse ground postings at the same place shall have to be treated differently in the case of Group-B Non-Gazetted Zonal Cadre Controlling Authority based cadres, and the Group B Gazetted All India seniority, and then Zonal Cadre based seniorities, and these two groups of employees, being separated by an intelligible differentia of one being a Group B Non-Gazetted Cadre, and another being a Group B Gazetted Cadre, can have to face separate treatment in regard to their requests for spouse ground postings.
51. The fifth issue framed by us at para 44(v)/above is that when Superintendents in Group B Gazetted Cadres have an All India Seniority, and also a Zone-wise seniority when they are in a Zone, how to regulate the distribution of vacancies and the availability of vacancies and posts for Inter-Commissionerate Transfers (ICTs) on spouse grounds etc. It is clear and logical that Group B Non-Gazetted officials can claim spouse ground postings only within their existing Zonal cadres alone, and they cannot have an unassailable claim of getting transferred to another Zonal cadre on spouse grounds, blocking the promotional prospects of the Inspectors of that second borrowing Zonal cadre, to which they have sought such a transfer. Such spouse ground transfers (without absorption) of Group B Gazetted Superintendents from one zonal cadre to another zonal cadre can however only be allowed if and when there are unfilled vacancies of Superintendents in the Zone, which are not being filled up for the time being, and as and when the Inspectors eligible for promotion are offered promotion to fill up the available vacancies in their own Zone, the ICT beneficiaries can only remain on transfer (without absorption) in the borrowing Zonal cadre if supernumerary posts are created for them in that borrowing Zonal cadre, and otherwise they have to revert to their parent cadre. By the operation of the judgment of the Ernakulam Bench and the concurring judgment of the Principal Bench, as upheld by the Honble High Court, it is clear that if the spouse ground transfer of one Gazetted Group B Superintendent from one Zonal Cadre to another Zonal Cadre is on a permanent absorption basis, and not on repatriable basis, the concerned persons lien in his original parent cadre would get extinguished, and he/she would acquire a fresh lien at the bottom seniority of the Group B Gazetted Superintendents of the new Zonal cadre in which he or she gets posted on such absorption. As was mentioned above also, the same principle is followed in the Indian Railway Establishment Manual also, where also all such spouse ground transfers are treated as request transfers, and on all request transfers, the person goes to the bottom seniority in the New Railway, unless it is a case of mutual transfer, where the two persons exchange the lien slots with each other, and move into the seniority slots and lien of the persons with whom they enter into a mutual exchange, or at their own level of seniority, whichever is lower. The Honble Apex Court has held that the Indian Railway Establishment Manual is a good collection or treatise of Subordinate Legislation, and its underlying principles have been upheld in many judgments of the Honble Apex Court, and can, therefore, be adopted mutatis mutandis in the case of other services also, including in the present case.
52. The sixth issue framed by us at para 44(vi)/above is as to whether the Circular dated 27.10.2011 is legally valid or not, and whether it is in accordance with the judicial pronouncements of the Ernakulam Bench, this Principal Bench, and the Honble High Court of Delhi. It is seen that the impugned order dated 27.10.2011 has been passed in compliance with the principles laid down by the Ernakulam Bench, and followed by the Principal Bench, and is more or less in accordance with the general principles of law as laid down as on date. However, the third sentence of Para-2(ii) and the Para-2(iii) appear to be contradictory with each other. If an ICT transferee is going to be placed as junior to all those who were regularly appointed in the borrowing new cadre prior to his/her ICT transfer, this stipulation can follow only a permanent absorption of the ICT transferee in the new borrowing cadre. If that be the case, then the third sentence of Para-2(ii) stating However, such transferred officer will retain his/her eligibility of the parent Commissionerate for his/her promotion to the next higher grade etc is incongruous with the two sentences preceding it. This sentence is also incongruous with the prescription in Para-2(iii) that on such transfer, having been placed junior to all those regularly appointed prior to such transfer, and becoming junior most in the new cadre, the transferees will not be considered for promotion in the old Commissionerate, which is in accordance with the concept of extinguishment of lien in the parent cadre, and creation of a fresh lien in the new cadre at the bottom seniority. But both the things cannot be stated in the same order just one after another.
53. Para-2(vi) of the impugned order dated 27.10.2011 already reproduced above now stipulates that on request Inter-Commissionerate Transfers, the person would go at the bottom seniority, which stipulation is in accordance with the findings at Paras-25 of the Ernakulam Bench judgment, which had set aside the instructions impugned before it only to the limited extent of quashing the instructions for such request transfers on spouse ground being allowed without loss of seniority. Therefore, we do not find any other fault, defect or legal infirmity in the impugned order dated 27.10.2011 except that the third sentence of Para-2(ii) is quashed and struck down, and the rest of the instructions will be operational.
54. However, there may be cases when a request transfer on spouse ground or on compassionate ground may not be for a permanent transfer and permanent absorption in the new borrowing cadre, and may be only for a temporary posting, till the period when relevant vacant posts are available in the new/borrowing cadre. For such cases the respondents can frame another policy, where the incumbents can retain their lien and seniority, and eligibility of promotion to the next higher grade etc. in their earlier parent cadre, say for a period of two years, as is allowed in the case of persons in the service of Union of India, in a confirmed/substantive capacity, and who then appear at another selection and get selected to a new service within the Union of India, and join the new service, but are allowed to retain their earlier lien for a period of two years from the date of their joining in the new service, upto the date of completion of their Probation in the new Service, in order to enable them to decide as to whether they would like to revert to their substantive appointment and lien in their earlier service, or, on completion of probation in the new service, give up their earlier lien, and get confirmed in the new service. Such cases are permissible in the case of fresh selections to that new service because a person does not have any lien to hold a post in the new service till the completion of his probation (of two years), and, therefore, logically and legally correctly, he is allowed a time period of two years to retain his lien on his earlier substantive post, which he has held prior to the new selection. Since a person cannot hold two liens at any point of time, that concept is already being followed in the case of persons getting selected to a higher service, and ought also to be followed in the case of Inter-Commissionerate Transfers on temporary basis, without giving up of lien in the parent lending cadre. So, while upholding the rest of the contents of the impugned order dated 27.10.2011, we can only direct that it would be better if while passing such ICT Transfer orders, the authorities concerned should consider and mention the aspects of maintenance of lien at the appropriate place as per the choice of the employee, in the body of the order itself, so that unnecessary litigation can be avoided later on.
55. As mentioned earlier also, the applicants had filed an MA No.406/2012, in which additional grounds and an additional prayer were sought to be raised, as already re-produced above. The additional ground raised relates to Clause-2(vii) of the Circular dated 27.10.2011, which may be again re-produced here as follows:-
(vii) Officers who are presently working on deputation basis from their parent Commissionerate to any other Commissionerate/Directorate and are willing to avail of the ICT in future will have to revert back to their parent Commissionerates first and apply afresh for ICT. The officers who have been continuously on deputation and have been absorbed on ICT during the interim period from 19.02.2004 (i.e. the date from which the ban became effective) till date, their seniority will be fixed from the date of their joining on deputation in the transferred Zone/Commissionerate.
56. The prayer made in the MA is to quash the impugned clause (vii) of the Circular dated 27.10.2011 as illegal, arbitrary, and unconstitutional, for the reasons that it seeks to apply the revised policy of Inter-Commissionerate Transfers on spouse ground retrospectively, taking away the vested rights, and defeats the legitimate expectations of the applicants that their cases would not be re-opened. That brings us to the issue as to whether the applicants had acquired any vested rights in the cadre to which they had been deputed without absorption.
57. The term deputation has been dealt with by the Honble Courts in a number of cases. In the case of State of Mysore Vs. M.H. Bellary AIR 1965 SC 868; 1964 (7) SCR 471; 1966 (1) LLJ 50, the Honble Supreme Court had held as follows:-
Promotion of persons on deputation to another department:-
Service on deputation in another department is treated by rule as equivalent to service in the parent department.. So long, therefore, as the service of the employee in the new department is satisfactory, and he is obtaining the increments and promotions in that department, it stands to reason that satisfactory service, and the manner of its discharge in the post which he actually fills, should be deemed to be rendered in the parent department also, so as to entitle him to promotions which are open on seniority-cum-merit basis.
[emphasis supplied].
58. Further in the case of State of Mysore Vs. P.N. Nanjundaiah; 1969 SLR 346; 1969 (3) SCC 633; AIR 1968 SC 1113, the Honble Supreme Court had further clarified the same point in deciding that in the case of service on deputation being satisfactory, an employee gets his right of promotion in the parent department. A case directly on the point of a person on deputation being entitled to promotion only in his parent department was decided by the Honble Apex Court in the case of Rajasthan State Electricity Board, Jaipur vs. Mohan Lal 1967 SLR 573; AIR 1967 SC 1857; 1967 (3) SCR 377; 1968 (1) LLJ 257.
59. It is seen that in the case of Union of India through Govt.of Pondicherry & Anr. vs. V.Ramakrishnan & Others. Civil Appeal No.6332/2005; the case concerned with the absorption of deputationists and the Honble Apex Court had ordered as follows:
Ordinarily, a deputationist has no legal right to continue in the post. A deputationist indisputably has no right to be absorbed in the post to which he is deputed. However, there is no bar thereto as well. It may be true that when deputation does not result in absorption in the service to which an officer is deputed, no recruitment in its true import and significance takes place as he is continued to be a member of the parent service. When the tenure of deputation is specified, despite a deputationist not having an indefeasible right to hold the said post, ordinarily the term of deputation should not be curtailed except on such just grounds as, for example, unsuitability or unsatisfactory performance. But, even where the tenure is not specified, an order of reversion can be questioned when the same is malafide. An action taken in a post haste manner also indicates malice. [See Bahadursinh Lakhubhai Gohil Vs. agdishbhai M. Kamalia and Others,(2004) 2 SCC 65, para 25].
[Emphasis supplied]
60. The rights of deputationists are different than those of substantively appointed persons as was laid down by the judgments cited above. Therefore, the applicants before us cannot be allowed to plead that since they were working on deputation, they cannot be reverted back to their parent Zonal cadre. To our mind, the respondent authorities are fully within their rights to prescribe now that when fresh instructions and the policy regarding Inter-Commissionerate Transfers, with absorption on bottom seniority basis, has now been issued and prescribed by them in accordance with the orders of this Tribunal, and the Honble Delhi High Court, those persons who are continuing to be on deputation, can be reverted back to their parent Zonal cadre, and they can then apply afresh for change of their Zonal cadre, from the earlier Zonal cadre to the new Zonal cadre, on permanent absorption and bottom seniority basis, when it will cease to be called merely as an Inter-Commissionerate Transfer, as it would then be the case of Inter Commissionerate Transfers along with permanent absorption in the new Zonal cadre, to which the person gets so transferred. The applicants cannot presume that such cases will not be considered sympathetically, in view of the above policy dated 27.10.2011, as laid down by its Paragraphs 2(i), 2(ii) (as modified by the observations above), 2 (iii), 2(iv), 2 (v) and 2(vi), which are in accordance with the general principles of law upheld by the Honble Apex Court, and as per the law laid down by the Ernakulam Bench and the Principal Bench, as upheld by the Honble Delhi High Court also, in the cases cited above. Therefore, MA No.406/2012, seeking to introduce an additional prayer clause (f) to quash the impugned clause (vii) of the Circular dated 27.10.2011 as illegal, arbitrary and unconstitutional is rejected. Similarly, the case having been finally heard before M.A. No.876/2012 for impleadment of DOP&T as a formal party having been considered, we are constrained to reject that M.A. also.
61. The issue framed at Para-44 (vii) above is as to whether while issuing the order dated 27.10.2011, sought to be impugned by the applicants by MA No.406/2012, the respondents have decided as to whether transfer on spouse ground is in public interest, or in private interest of the people making such requests for transfer on spouse ground. As has already been commented upon by us and noted, that though the policy in the case of Zonal Cadres and All India Cadres has to be the same, yet its effect and operation would differ in the case of Zonal cadres and in the case of All India cadres.
62. It is, therefore, clear that going beyond the judgment of the Ernakulam Bench (supra), and following the judgment of the Honble Apex Court in the case of Bank of India Vs. Jagjit Singh Mehta (supra), we can today hold that transfers on spouse ground cannot be held to be transfers in public interest, and with this observation, the issue, as framed at para 44(vii)/above, is decided against the applicants.
63. In Para-44 (viii), the issue as raised by its Intervenor-Respondent No.3 is that this OA is hit by the principles of res-judicata and/or estoppel. However, since the issue as to whether the spouse ground transfers and compassionate ground request transfers are in public interest or private interest had not been decided by the Ernakulam Bench, and by the Principal Bench in its earlier orders cited above, it is held that this OA is not hit by the principles of res-judicata or estoppel.
64. As to the issues as framed in Para 44(ix) and 44(x)/ante, as to whether the respondents were within their rights and legally correct in having passed the impugned orders, and as to whether the Cadre Controlling Authority, Delhi Zone, was competent to pass the impugned order dated 03.02.2012, we do not find any illegality or infirmity other than the illegality already pointed out above in respect of the third sentence of Para-2(ii) of the letter dated 27.10.2011, which has been quashed through Para 53 above. The rest of the actions of the respondents appear to be as per the directions of the Ernakulam Bench and the Principal Bench, as upheld by the Delhi High Court, and the law in general as laid down by the Honble Apex Court. Therefore, it is held that the respondents were fully within their rights to take the actions as they have taken, and pass the orders in pursuance of Para-2 (vii), reverting to their parent Commissionerate the applicants, who were working only on the basis of transfer on deputation basis, so that they may go back to their parent cadre first, and then apply afresh under the new policy guidelines for change of their Zonal Commissionerate cadre on spouse ground, and then come back on absorption in the new cadre on bottom seniority basis, under the new policy guidelines, notified through Para-2 (I to ix) of the order dated 27.10.2011. We find nothing wrong in this approach, as none of the rights of the applicants are being trampled upon by the Respondent authorities in doing so.
65. Needless to add here that such requests, for transfer on spouse grounds to a new Zonal Commissionerate cadres, but on permanent absorption and bottom seniority basis, when granted, would be binding upon anybody who is seeking promotion to the vacant posts in that Cadre, and cannot be assailed by any of the persons who are still waiting for and seeking promotions to those vacant posts, on the ground that such spouse ground transfers on compassionate basis should not have been acceded to, because the desirability of posting the spouses on the same place is an inbuilt aspect of public policy, reiterated by the respondents themselves through the DOP&T Circular, and also emphasized by the 4th, 5th and the 6th Central Pay Commissions.
66. If any such transfer with permanent absorption on spouse grounds in the new Zonal Cadre on bottom seniority basis affects the promotional prospects of the persons below, they would only have to await the creation of any further vacancies by way of attrition & retirement etc., and they cannot otherwise assail the grant of such requests for spouse ground transfers and permanent absorption in the new zonal cadre.
67. Further, the respondents cited the case of S.B. Bhattacharjee vs. S.D. Majumdar and Others (2007) 10 SCC 513 in which in Paragraphs 32 & 33, the Honble Apex Court has stated as follows:-
32. The clarification issued by the State is not in the teeth of the illustration given in clause (g) of paragraph 3.4 of the Office Memorandum. The clarification having been issued, the same should be taken into consideration by this Court irrespective of the fact as to whether it was available to the Public Service Commission on 16.03.2004 when the DPC held its meeting which, in our opinion, was not of much significance.
33. The clarification being explanatory and/or clarificatory, in our opinion, will have a retrospective effect.
[Emphasis supplied].
68. Bowing before the wisdom of the Honble Apex Court, we also hold that if an explanatory or clarificatory letter or instruction is issued clarifying the scope of an earlier order, it will obviously have a retrospective effect from the date of the original order itself, and not from the date of issuance of the clarification.
69. In the result the OA is rejected with the observations as above, and the MAs are also disposed off, with MA No.379/2012 for joining together being allowed, but MA No.406/2012 and 876/2012 being rejected. There shall be no order as to costs.
(Sudhir Kumar) (G. George Paracken) Member (A) Member (J) cc.