Central Administrative Tribunal - Ernakulam
Joseph K.John vs The Commissioner Of Central Excise ... on 10 July, 2015
Author: P.Gopinath
Bench: P.Gopinath
o;? CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 400/2010
Original Application No.262/2012
Original Application No. 505/2011
Original Application No. 784/2011
FRIDAY, this the 10th day of JULY, 2015
CORAM:
HON'BLE MR. U.SARATHCHANDRAN, JUDICIAL MEMBER
HON'BLE MRS.P.GOPINATH, ADMINISTRATIVE MEMBER
OA No. 400/ 2010:
Joseph K.John, s/o K.K.John, aged 43 years,
Inspector of Central Excise,
Service Tax Audit Party No. IV,
Internal Audit, Calicut Commissionerate,
Calicut, Kerala. Applicant
(By Advocates Mr. O.V.Radhakrishnan,Sr., Mr.Antony Mukkath )
Versus.
1. The Commissioner of Central Excise (Cadre Controlling)
Cochin Commissionerate,
C.R. Building, I.S.Press Road,
Cochin -18.
2. The Chief Commissioner of Central Excise,
Kerala Zone, C.R. Building, I.S.Press Road,
Kochi -682 018.
3. The Chief Commissioner of Central Excise,
Mumbai Zone,115, M.K.Road, Church Gate,
Mumbai -400 020.
4. Union of India, represented by Secretary,
Department of Revenue, Ministry of Finance,
New Delhi Respondents
(By Advocate Mr.N.Anil Kumar, Sr.PCGC(R )
OA 262/2012:
Shemmy Jose, d/o Sri P.P.Jose, aged 42 years,
Inspector of Central Excise (on deputation),
Office of the Superintendent of Central Excise,
Service Tax Range, Trissur, residing at 'Bethlahem',
Enarc Gardens, Cheroor Post, Thrissur -680 008. Applicant
(By Advocates Mr.O.V.Radhakrishnan Sr.,
Mrs. K.Radhamani Amma,
Mr.Antony Mukkath,
Mr.K.Ramachandran,
Mr. K.Muralidharan Nair )
Versus.
1 Union of India, represented by Secretary,
Department of Personnel & Training,
Ministry of Personnel, Public Grievances & Pensions,
New Delhi -110 001.
2 Under Secretary to Government of India,
Ministry of Finance, Department of Revenue,
Central Board of excise and Customs,
HUDCO Vishala (9th Floor), Bhikaji Cama Place,
R.K.Puram, New Delhi -110066.
3 Central Board of Excise and Customs represented by
its Chairman, North Block, New Delhi -110 001.
4 Commissioner of Central Excise, Customs &
Service Tax, Central Revenue Building, I.S.Press Road,
Kochi -682 018.
5 Commissioner of Central Excise, Custom and
Service Tax, Central Revenue Building, Mananchira,
Kozhikode.
6 Chief Commissioner of Central Excise,
Customs and Service Tax, Vadodara Zone,
2nd Floor, Annex Building, Race Course Circle,
Vadodara b� 390 007.
7 Chief Commissioner of Central Excise, Customs &
Service tax, Cochin Zone, Central Revenue Building,
IS Press Road, Cochin -682018. Respondents
(By Advocate Mr. N.Anil Kumar, Sr. PCGC(R )
OA No. 505/2011:
Rajeev K., s/o the late V.K.Nair, aged 37 years,
Inspector of Central Excise (on deputation),
Office of the Commissioner of Central Excise,
Customs & Service tax, Central Revenue Building,
I.S.Press Road, Kochi -18, presently residing at
4th floor, Providence Plaza, Providence Road,
Kochi -18. Applicant
(By Advocates Mr. O.V.Radhakrishnan Sr.,
Mrs. K.Radhamani Amma,
Mr.Antony Mukkath,
Mr.K.Ramachandran,
Mr. Gens George Elavinamannil)
versus.
1. Union of India, represented by Secretary,
Department of Personnel & Training,
Ministry of Personnel, Public Grievances & Pensions,
New Delhi -110 001.
2. Under Secretary to Government of India,
Ministry of Finance, Department of Revenue,
Central Board of Excise and Customs,
HUDCO Vishala (9th Floor), Bhikaji Cama Place,
R.K.Puram, New Delhi -110066.
3. Central Board of Excise and Customs represented
By its Chairman, North Block, New Delhi -110 001.
4. Commissioner of Central Excise, Customs &
Service Tax, Central Revenue Building, I.S.Press Road,
Kochi -682 018.
5 Commissioner of Central Excise and Customs,
Commissionerate Surat b�I, New Central Excise Building,
Opposite Gandhi Baug, Chowk Bazar, Surat -395 001.
6 Chief Commissioner of Central Excise, Customs &
Service tax, Cochin Zone, Central Revenue Building,
I.S. Press Road, Cochin -682018. Respondents
(By Advocate Mr. Thomas Mathew Nellimoottil, Sr.PCGC)
OA No. 784/ 2011.
Jyothi Sukumaran, D/o late A.R.Nair, aged 41 years,
Inspector of Central Excise (on deputation),
Office of the Deputy Commissioner of Central Excise and
Service Tax, Divisional Office, Sakthan Thampuran Nagar,
Thrissur-1, residing at 'Jyothis' Mookoni House, Adiyat Lane,
Poothole, Thrissur-4. Applicant
(By Advocate Mr.O.V.Radhakrishnan, Sr.
Mr. K.Muralidharan Nair)
Versus.
1. Union of India, represented by Secretary,
Department of Personnel & Training,
Ministry of Personnel, Public Grievances & Pensions,
New Delhi -110 001.
2. Under Secretary to Government of India,
Ministry of Finance, Department of Revenue,
Central Board of excise and Customs,
HUDCO Vishala (9th Floor), Bhikaji Cama Place,
R.K.Puram, New Delhi -110066.
3. Central Board of Excise and Customs represented by
its Chairman, North Block, New Delhi -110 001.
4. Commissioner of Central Excise, Custom and
Service Tax, Central Revenue Building, Mananchira,
Kozhikode
5. Chief Commissioner of Central Excise,
Customs and Service Tax, Vadodara Zone,
Vadodara
.
6. Chief Commissioner of Central Excise, Customs &
Service tax, Cochin Zone, Central Revenue Building,
IS Press Road, Cochin -682018. Respondents
(By Advocate Mr.N.Anil Kumar, Sr.PCGC(R )
These Original Applications having been heard on 08.06.2015, this Tribunal
on 10.07.2015 delivered the following:
ORDER
BY HON'BLE MR.U.SARATHCHANDRAN, JUDICIAL MEMBER The question which calls for adjudication in these cases is whether the administrative instructions for inter-commissionerate transfers ( ICT, for short) in the respondent Department on 'spouse' ground and 'compassionate' ground are transfers strictly in public interest, to enable the transferred officer to carry over the benefit of his seniority in the parent commissionerate to the new commissionerate or not.
2. Before 19.02.2004, inter- commissionerate transfers were permissible subject to loss of seniority. However, later, on 19.02.2004, Respondent No. 2 Central Board of Excise and Customs (Board, for short) vide Annexure A/1 communication addressed to all Commissioners of Central Excise and Customs informing that no inter- Commissionerate transfer shall be allowed to any Group B, C & D employee and that in exceptional circumstances depending upon the merits of each case, such transfers shall be allowed on deputation basis for a period of 3 years subject to approval of the transferor and transferee cadre controlling authorities. Further extension in deputation can be made by the Commissioners concerned for a further period of one year by the Chief Commissioners concerned on mutually agreed basis.
3. Out of the four OAs under consideration in this order, OA No. 400/10 was adjudicated by this Tribunal along with other connected cases ie. OA 643/09, 650/09, 835/09 vide Annexure A/15 common order dt.16.05.2011. OA Nos. 505/11 and 262/ 12 were also disposed of by this Tribunal by another order on 05.02.2013. The aforesaid two orders of this Tribunal were challenged in the High Court of Kerala in OP Nos. 3046/11, 304/13, 655/13 and 656/13. The High Court disposed of those OPs vide a common judgment dt. 04.02.2014 setting aside the orders of this Tribunal and holding that the question as to whether ICTs on 'spouse' ground or 'compassionate' ground is eligible to be treated as a ground of public interest, has to be decided by this Tribunal.
4. As the subject matter involved in the four OAs captioned above is one and the same, a common order is being passed in these OAs. For the purpose of reference, we take into account the details given in OA No. 262/2012.
5. Applicant in OA 262/12 was an applicant for inter- commissionerate transfers from deputation basis from Central Excise, Vapi Commissionerate (Gujarat) to the Calicut Commissionerate in the Central Excise Kerala zone. She was granted posting order at Calicut Commissionerate vide Annexure A/2 on 17.01.2007. She joined duty on 09.04.2007 at Calicut. Her deputation was extended for a further period of one year vide Annexure A/4 order. The maximum period of deputation allowed was for five years. Thereafter, based on the OM issued by the Department of Personnel and Training (DoPT) on posting of husband and wife at the same station, the Board vide Annexure A/5 order dt. 27.3.09 partially relaxed the instructions in Annexure A/1 order, permitting inter-commissionerate transfers without any loss of seniority to facilitate the posting of husband and wife at the same station in line with the instructions of DoPT. Annexure A/5 dt. 27.03.09 issued by the Board reads:
'. . . The Board deliberated upon the issue in its meeting held on 04-3-2009 and have decided to partially relax the earlier instructions of the Board as referred to above, in order to facilitate posting of husband and wife at the same station in line with the instruction of the DOPT. Accordingly, it has now been decided to permit inter-Commissionerate transfers of Groups-B, C and D Officers beyond the Commissionerates having common cadres, i.e. from one Cadre Controlling Authroity to another, without any loss of seniority', subject to certain conditions.
6. On 08.04.2009, the applicant submitted A/10 application seeking inter- commissionerate transfer from Vapi, Gujarat to Calicut Commissionerate in Kerala in terms of Annexure A/5 instructions. She has relied on the 'spouse' ground mentioned in Annexure- A/5 for such transfer. As there was no response, she gave Annexure- A/11 representation dt.06.09.2011 which also did not yield any response. In the meantime, the Board issued Annexure -A/12 instructions dt.27.10.2011.
7. Applicant contends that Annexure- A/12 instructions did not recall, cancel or modify Annexure - A/5 to A/7 instructions relating to transfers on 'spouse' ground. As per Annexure -A/12, the ban on the inter-commissionerate transfer has been lifted and all employees in Groups B, C and D are entitled to inter -commissionerate transfer without seniority. The applicant again made a request through another representation Annexure - A/13 dt 17.11.2011 for granting inter-commissionerate transfer on 'spouse' ground. According to applicant, there are 53 vacancies in the Kochi Commissionerate, in the cadre of Inspectors. Therefore applicant states that she is entitled to inter- commissionerate transfer in terms of Annexure - A/5 O.M. Relying on Annexure A/16 OM dt. 3.07.1986 consolidating the orders on seniority issued by the DoPT, which states that in transfers not strictly in public interest the transferees will be placed below all officers appointed regularly to the grade, applicant states that the necessary corollary is that in case where transfers are made strictly in public interest such transferees shall not entail loss of seniority. She contends that transfer of employees on b�spouseb� ground is strictly in public interest and therefore even if she is transferred in terms of A/5 and A/7 instructions, she shall not suffer any loss of seniority.
8. The cases of the applicants in OA Nos. 784/2011, OA No. 505/2011 and OA No. 400/2010 are also similar.
9. Hon'ble High Court while setting aside Annexure A/15 common order and the common order dt.05.02.2013 in OA Nos. 505/2011 and 262/2012 of this Tribunal observed:
'2. The crux of the issues is as to whether the ICT granted on the basis of spouse ground or compassionate ground deserves to be treated as transfers in public interest for protection of seniority which the officer may be allowed to carry from the parent commissionerate to which that officer is transferred'b� .
.............................
'5. Having heard the learned senior counsel, the other learned advocates for the petitioners and the learned central Government counsel, we see that there are different OMs issued by the Department of Personal and Training (DoPT) governing the field of transfer; seniority; transfer on spouse ground; transfer on ground of physical disability; etc. When DoPT instructions regulate such field, the efficacy of the decisions of the individual departments as contained in letters issued by the departments to the subordinate officers may have to be considered differently. Be that as it may, the primary thrust of transfer on spouse ground, even going by the DoPT OMs is a preference given to women and children, having regard to the welfare of family as a unit. Whatever that be, the issue cannot be concluded finally without deciding as to whether the transfer on spouse ground or compassionate ground are to be treated as strictly in public interest for the purpose of enabling an officer to carry his seniority from his parent commissonerate to the commissionerate to which that officer is transferred at his request on such ground in terms of the ICT norms. . . . . . .' '7. On the whole, we are of the view that in none of the matters which are before us, the Tribunal had the opportunity to adjudicate on the aforesaid issue. The tribunal had, in fact, excluded itself from doing so, may be due to paucity of materials and pleadings showing the development of the field occupied by the DoPT instructions and other relevant particulars, chronologically. We are of the clear view that the issue is not premature and it has to be decided. Otherwise, it has to go back to the authority of the first instance which will be the controlling authority of a particular commissionerate to decide on this particular issue of law and then apply to settle the inter se seniority. That may not be in the interest of the employees or the establishment, more importantly because, DoPT's views would have primacy.'
10. Therefore, in the light of the above observations of the High Court, the question to be considered by us in these OAs is whether the ICTs on 'spouse' ground, 'compassionate' ground and 'disability' grounds without loss of seniority are transfers strictly in public interest or not ?. Since the mandate of this Tribunal is to adjudicate on the public interest aspect of the above modes of ICTs which obviates loss of seniority, we are not delineating the rival contentions of the parties in these OAs.
11. When these OAs were taken up for hearing, OA 643/2009 also was taken up. Shri Shafik M.A., learned counsel for the applicant therein submitted that in the light of Annexure- MA/1 (produced along with MA/180/00398/14 in that case) -Annexure A/12 in the present case - applicants in OA 643/2009 are withdrawing that OA. Accordingly, OA643/2009 was closed as withdrawn. OA 650/ 2009 and OA 835/2009 which were also remanded back to this Tribunal along with the present OAs were not prosecuted by the applicants therein who included the Cochin Customs Ministerial Association and All India Excise Inspectors Association, presumably for the reason that they have been satisfied with Annexure A/12 administrative instructions issued by the Board on 27.10.2011.
12 The short but poignant question involved in this case is whether ICTs on 'spouse' ground, 'compassionate' ground and 'physically handicapped' ground without entailing loss of seniority are transfers made in public interest? Annexure A/5 to A/7 are administrative instructions on ICTs in respect of Groups B, C & D employees. Though inter-commissionerate transfers were initially allowed, adopting the norm of bottom seniority in the cader to which the employee is transferred, subsequently such ICTs came to be banned as they generated administrative difficulties resulting in litigation. The facility of ICTs was restored vide Annexure- A/5 based on DoPTb�s instructions relating to 'spouse' ground. While permitting ICTs on 'spouse' ground, the Board In Annexure- A/5 went a step further than what was envisaged in the said DoPT guidelines, allowing the employees so transferred to retain the 'seniority' they had been assigned in the seniority unit from where they were transferred.
13. DoPT is the Department ordained with the matters relating to recruitment, promotion and morale of the services by virtue of the Govt. of India (Allocation of Business) Rules, 1961 framed under Article 77(3) of the Constitution of India. Annexure- A/8 is the consolidated guidelines issued by the DoPT on 'posting of husband and wife at the same station'. It provides for mandatory posting of spouse at the same station if they are in the Central services or working in same Department and if posts are available. It facilitates spouses to be posted at the same station when one spouse belongs to All India Services and the other spouse belongs to Public Sector Undertaking. It also facilitates posting of spouses at the same station or in the same State if one spouse employed under the Central Government and the other spouse is employed under the State Government. The introductory portion of Annexure A/8 OM dt. 30.09.2009 issued by the DoPT throws some light on the raison d'etre and evolution of the policy decision taken by the Government of India in posting husband and wife at the same station. It reads:
'In view of the utmost importance attached to the enhancement of women's status in all walks of life and to enable them to lead a normal family life as also to ensure the education and welfare of the children, guidelines were issued by DOPT&T in O.M.No.28034/7/86-Estt.(A) dated 3.4.86 and No. 28034/2/97-Estt.(A) dated 12.6.97 for posting of husband and wife who are in Government service, at the same station. Department had on 23.8.2004 issued instructions to all Mins./Deptts. to follow the above guidelines in letter and spirit.
2. In the context of the need to make concerted efforts to increase representation of women in Central Government jobs, these guidelines have been reviewed to see whether the instructions could be made mandatory. It has been decided that when both spouses are in same Central Service or working in same Deptt. and if posts are available, they may mandatorily be posted at the same station. It is also necessary to make the provisions at Para 3(iv) and (vi) of the O.M. dated 3.4.86 stronger as it is not always necessary that the service to which the spouse with longer service belongs has adequate number of posts and posting to the nearest station by either of the Department may become necessary.
3. On the basis of the 6 th CPC Report, Govt. servants have already been allowed the facility of Child Care Leave which is admissible till the children attain 18 years of age. On similar lines, provisions of O.M. dated12.6.97 have been amended.
4. The consolidated guidelines will now be as follows:- . . . . . . . '
14. Although no elaborate justification has been made for the inter- commissionerate transfers on 'compassionate' grounds and 'physical disability' grounds as seen in Annexure A/5 to A/7and A/12, the rationale is quite obvious. Appointments on 'compassionate' ground are granted to dependents of the employees under the Central Government who die in harness, to prevent the family of such employee from falling into vagrancy on account of the sudden loss of income from its bread-winner. Detailed consolidated guidelines on appointment on 'compassionate' ground have been issued by DoPTvide OM.No.14014/6/94-Estt(D)dt. 9-10-1998. Similarly, appointment given to 'physically handicapped' persons is also a policy of the Government based on the statutory obligations as per 'Persons with Disabilities (Equal opportunities, Protection of Rights and Full participation) Act, 1995 and also to meet the international obligations under the 'UN Convention on Persons with Disability' to which India is a signatory.
15. We shall now deal with the ICTs on 'spouse' ground as per the administrative instructions issued by the Board in Annexure A/5 to A/7 in the light of Annexure A/8 OM dt. 30.09.2009 issued by the DoPT.
16. Although Hon'ble High Court has directed this Tribunal to make DoPT a party as it is the fountain head of the personnel administration under Government of India, no effective assistance came from the counsel engaged by the DoPT. No interested persons came forward for getting themselves impleaded in these OAs. None of Employees' Associations / Unions working under the respondents has chosen to get them impleaded subsequent to the judgment of the High Court. Apart from what has been provided to us by way of the record in these cases, no other materials were furnished by the DoPT which is already a party (Respondent No.1 in OA 362/12 , OA 784/11 and also in OA 505/11).
17. On remand by High Court, the matters we are called upon to consider in these OAs, broadly are:
(i) Are ICTs on 'spouse' ground, 'compassionate' ground and 'physical disability' grounds strictly in public interest to enable the transferred officer to carry over the benefit of seniority to the new Commissionerate de hors the seniority status of the other officers in the similar cadre in the host commissionerate ?
(ii) The heart burn of the officers who were already working in the host commissionerate,
(iii) Materials and pleadings showing the development of the field occupied by DoPT instructions and other relevant particulars, chronologically.
(iv) Primacy of the views of DoPT would have in such matters.
18. We have heard Shri O.V.Radhakrishnan, Senior Advocate for applicants in these OAs and the learned Central Government Counsel. As noted above, when these remanded matters were taken up for hearing, OA 643/2009 was withdrawn by the counsel appearing for the applicants therein contending that they are satisfied with the subsequently issued Annexure -A/12 instructions which provides for ICT on bottom seniority basis .
19. Mr. O.V.Radhakrishnan, Senior Advocate appearing for the applicants in the OAs on hand argued the matter at length. At the outset of his argument, he pointed out that by the judgment 4-2-2014 of the High Court remanding these matters, the whole issue is at large. The arguments of the learned senior advocate are five-pronged.
According to him :
(i) seniority is not a right but is only a facet of the different interests of Government servants which cannot be categorised as a service condition or as a right.
(ii) seniority does not always lead to promotion,
(iii) chances of promotion are not conditions of service and hence the mere aspirations for promotion do not require protection from the Court/ Tribunal.
(iv) the only right of the government servant is a right to be considered for promotion
(v) ICTs on 'spouse' ground, 'compassionate' ground and 'physically handicapped' grounds are policy decisions of the Government made in public interest.
We shall examine these arguments in the light of the directions issued by the High Court.
20. Annexure A/16 OM dt.03.07.1986 is the consolidated orders issued by the DoPT on the subject of 'Seniority'. Para- 3 of the OM deals with seniority of transferees. Para 3.5 deals with seniority in cases transfers are not in public interest. It reads:
'3.5. In cases in which transfers are not strictly in public interest, the transferred officers will be placed below all officers appointed regularly to the grade on the date of absorption.'
21. The provision extracted above is generally known as the 'principle of bottom seniority' followed when request for transfer to a different seniority unit is granted on personal grounds. The normal rule relating to transfers on the request of officers to a different seniority unit is that such transferred officers will be ranked below all the direct recruits or promotees as the case may be as per the existing seniority list. Learned counsel for the applicant submitted that though Annexure - A/16 OM does not specifically state that the employees who have been transferred strictly in public interest would carry their seniority in the parent unit along with them, the corollary of what is stated in para 3.5 quoted above is that when transfer is made strictly in public interest, the transferred officers will carry their seniority to the transferred unit. According to learned counsel for the applicant, the corollary of para 3.5 of Annexure A/16 OM is an exception to the general rule.
22. It is well settled position that transfer is an incidence and a necessary concomitant of service. A person with all India transfer liability is obliged to serve anywhere in India. Such Government employees cannot have any vested rights to remain posted at one place or another. Normally such transfers are made in administrative exigencies. In such cases, as the transfer is considered as in public interest, i.e. the transferred officer will carry all the service benefits including his seniority to the transferred unit. In establishments with different seniority units having their operations on an all India basis, seniority in each unit is a matter of concern for the employees as it often has some nexus with promotion. The Departments under the Central Government like Income Tax, Central Excise & Customs, BSNL, Posts, etc. have different seniority units at the regional level for employees belonging to Class C and D. These establishments maintain all India seniority also for higher posts. Nevertheless, in the instant cases, the administrative instructions in Annexure A5 to A/7and A/12 on ICTs relate to the Group B, C &D officers only. As per those instructions ICT on the 'spouse' ground, 'compassionate' ground and 'physically handicapped' ground is permitted to Group B, C & D officers in the respondent department without any loss of seniority.
23. Supreme Court of India in K.P.Sudhakaran and another v. State of Kerala and others (2006) 5 SCC 386 had the occasion to consider inter- cadre transfers on personal considerations. The Apex Court held:
'11. In service jurisprudence, the general rule is that if a Government servant holding a particular post is transferred to the same post in the same cadre, the transfer will not wipe out his length of service in the post till the date of transfer and the period of service in the post before his transfer has to be taken into consideration in computing the seniority in the transferred post. But where a Government servant is so transferred on his own request, the transferred employee will have to forego his seniority till the date of transfer, and will be placed at the bottom below the junior-most employee in the category in the new cadre or department. This is because 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. This is also because 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'.
Thus it is clear that when a Government servant is getting transferred to another seniority unit or department on his personal considerations, he cannot be permitted to disturb the seniority of the employees in the department unit to which he is transferred. According to the learned counsel for the applicants the obvious corollary to this position is that the Government servants who are transferred on public interest do not have to forego the seniority they have acquired in their parent unit.
24. Now, the question which needs examination is whether ICTs on 'spouse', 'compassionate' and 'physically handicapped' grounds are made in public interest or in private interest? In this context we need to examine the scope and extent of public interest in such transfers. The term b�public interestb� has been given a meaning in Black's Law Dictionary as follows:
Public Interest: Something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local, state or national government.
(Black's Law dictionary, Fifth edition, West Publishing Co., 1979) The term 'public interest' was considered by the Apex Court in different judgments in different contexts. In Premium Granites v. State of T.N.(1994) 2 SCC 691, the Apex Court observed :
The expression 'public interest' finds place in the Constitution and in many enactments which have since been noted and considered by this court in various decisions. The said expression is, therefore, a word of definite concept'. In the context of compulsory retirement of Government servants, the Apex Court in State of Gujarat v. Suryakant Chunilal Shah (1999) 1 SCC 529, observed :
'11. What is 'public interest' was explained in the classic decision of this Court in Union of India v. Col.J.N.Sinha. It was pointed out that the object of premature retirement of a government servant was to weed out the inefficient, corrupt, dishonest employees from the government service. The public interest in relation to public administration means that only honest and efficient persons are to be retained in service while the service of the dishonest or the corrupt or who are almost dead wood, are to be dispensed with. This Court observed : (SCC pp.461-62, paras 9-11) 'Compulsory retirement involves no civil consequences. The aforementioned Rule 56 (j) is not intended for taking any penal action against the government servants. That Rule merely embodies one of the facets of the pleasure doctrine embodied in Article 310 of the Constitution. Various considerations may weigh with the appropriate authority while exercising the power conferred under the Rule. In some cases, The Government may feel that a particular post may be more usefully held in public interest by an officer more competent than the one who is holding. It may be that the officer who is holding the post is not inefficient but the appropriate authority may prefer to have a more efficient officer. It may further be that in certain key posts public interest may require that a person of undoubted ability and integrity should be there. There is no denying the fact that in all organisations and more so in government organisations, there is a good deal of dead wood. It is in public interest to chop off the same. Fundamental Rule 56(j) holds the balance between the rights of the individual government servant and the interests of the public. While a minimum service is guaranteed to the government servant, the Government is given power to energise its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in public interest.
It is true that a compulsory retirement is bound to have some adverse effect on the government servant who is compulsorily retired but then as the Rule provides that such retirements can be made only after the officer attains the prescribed age. Further a compulsorilyretired government servant does not lose any of the benefits earned by him till the date of his retirement. Three month's notice is provided so as to enable him to find out other suitable employment. . . .' In a case relating to commissioning of pipes, steel tanks etc. in a thermal power station, the Court in Raunaq International Ltd. v. I.V.R. Construction Ltd.and others (1999) 1 SCC 492 examined the scope of 'public interest' in a different context. It observed: 'The elements of public interest are : (1) Public money would be expended for the purposes of the contract. (2) The goods or services which are being commissioned could be for a public purpose, such as, construction of roads, public buildings, power plants or other public utilities. (3) the public would be directly interested in the timely fulfilment of the contract so that the services become available to the public expeditiously. (4) The public would also be interested in the quality of work undertaken or goods supplied by the tenderer. Poor quality of work or goods can lead to tremendous public hardship and substantial financial outlay either in correcting mistakes or in rectifying defects or even at times in redoing the entire work - thus involving larger outlays of public money and delaying the availability of services, facilities or goods, e.g., a delay in commissioning a power project, as in the present case, could lead to power shortages, retardation of industrial development, hardship to the general public and substantial cost escalation.' 'Public Interest' in the context of judicial administration was a topic of discussion in K.Ashok Reddy v. Government of India and others (1994) 2 SCC 303. In that case the Apex Court held that the power of transfer of High Court judge under Article 222 of Constitution of India is to subserve a public purpose and for promoting public interest for 'better administration of justice' throughout the country (para 30).
25. We note that the term 'public interest' carries varying contextual meanings. But in the cases captioned above, we need to examine the scope of public interest involved in ICTs on 'spouse' ground, 'compassionate' ground and 'physically handicapped' ground. In the first blush, one may think that request transfers on the aforesaid grounds of 'spouse', 'compassionate' and 'physically handicapped' are strictly personal considerations for the seekers of such transfers. However, on a close examination of the ICTs on the aforesaid grounds, one can see that the administrative instructions contained in Annexure A/5 to A/7 are integrally sourced from the policy decisions of Government of India on those matters purveyed through the different OMs issued by the DoPT. Annexure A/8 is the consolidated guidelines issued by the DoPT vide OM dt.30.09.2009 on the subject 'posting of husband and wife at the same station'. The introductory portion of the said OM reads:
'In view of the utmost importance attached to the enhancement of womenb�s status in all walks of life and to enable them to lead a normal family life as also to ensure the education and welfare of the children, guidelines were issued by DOPT&T in O.M.No.28034/7/86-Estt.(A) dated 3.4.86 and No. 28034/2/97-Estt.(A) dated 12.6.97 for posting of husband and wife who are in Government service, at the same station. Department had on 23.8.2004 issued instructions to all Mins./Deptts. to follow the above guidelines in letter and spirit.
2. In the context of the need to make concerted efforts to increase representation of women in Central Government jobs, these guidelines have been reviewed to see whether the instructions could be made mandatory. It has been decided that when both spouses are in same Central Service or working in same Deptt. and if posts are available, they may mandatorily be posted at the same station. It is also necessary to make the provisions at Para 3(iv) and (vi) of the O.M. dated 3.4.86 stronger as it is not always necessary that the service to which the spouse with longer service belongs has adequate number of posts and posting to the nearest station by either of the Department may become necessary.
3. On the basis of the 6th CPC Report, Govt. servants have already been allowed the facility of Child Care Leave which is admissible till the children attain 18 years of age. On similar lines, provisions of O.M. dated 12.6.97 have been amended.
4. The consolidated guidelines will now be as follows:- . . . . . . . ' We note that there had been two other OMs issued by DOPT on 03.04.86 and 12.06.97 regarding posting of husband and wife at the same station.
26. Apex Court had an occasion to consider the desirability of posting husbands and wife at the same station. In Bank of India v. Jagjit Singh Mehta (1992) 1 SCC 306, the Apex Court observed :
'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, in that case the court sounded a word of caution that though it is desirable to post the husband and wife at the same station that does not enable any spouse to a claim it as of a right if the Departmental authorities do not consider it feasible. It was held that exigencies of administration should be the prime concern of the Departmental authorities but the authorities should consider the desirability of having such spouse living together without any detriment to administrative needs and the claim of other employees. On a close examination of the consolidated guidelines in Annexure A/8 OM also, it can be seen that the policy of the Government is :
'It has been decided that when both spouses are in the same Central Service or working in the same Department and if posts are available they may mandatorily be posted at the same station'.
Nevertheless, Annexure A/8 OM says:
'it is also necessary to make provisions at Para 3 (iv) & (v) of OM dt. 03.04.86 stronger as it is not always necessary that the service to which the spouse with longer service belongs has adequate number of posts and posting to the nearest station by either of the Department may become necessary'.
This shows that while issuing Annexure A/8 OM, the Govt. of India was conscious that such transfers from different seniority units would result in upsetting of the seniority of aspirants for such inter- cadre transfers. Yet the Government adopted it as the policy, having regard to the welfare of family as a unit. [Though single parent family is not unfamiliar in other jurisdictions, our culture and ethos are yet to come to grips with it.] As stated earlier, Annexure-A/8 is a consolidation of the policy decisions of the Central Government. It has the status of an executive order binding on all departments under the Government of India. Generally speaking, the policies of the Government are often in concordance with the public interest. When the policy decisions are relating to public administration it needs to be concomitant with good governance. In other words, in matters relating to public administration, the policy decisions should be purposive and should be aimed at achieving good governance.
27. On examination of the rationale behind granting of ICT without affecting seniority to Govt. servants on 'compassionate' grounds, one can see that special concessions have been given to the dependents of Govt. servants who died in harness. Revised consolidated instructions on the scheme for 'compassionate' appointment under the Central Govt. issued vide OM No. 14014/6/94-Estt.D dt. 09.10.98 by the DoPT envisages 5% reservation for dependents of Govt. servants who die in harness in Group C & D posts earmarked for direct recruitment, in order to mitigate the financial hardship faced by their family due to the sudden death of the bread-winner. Appointment on 'compassionate' ground is a special provision made by the Government in order to avoid the family of the deceased Govt. servant falling into vagrancy. This is in tune with the public assistance in cases of 'undeserved want' contemplated under Article 41 of the Constitution. In the case of reserving 3% to persons with disability, it is a statutory obligation of the Govt. as per the provisions of 'Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
28. By any stretch of imagination, it cannot be gainsaid that public assistance in the form of appointment on compassionate ground and the special concessions given to government employees with disability are in tune with public interest. On a close look at the special circumstances under which such persons are given appointment, it can be easily discerned that they deserve some protection which would enable them to enjoy the fruits of such appointments. If a disabled person or the dependent of a person dying in harness is appointed and posted at a distant place away from family, no useful purpose would be served by such appointments. In the case of a dependent Govt. servant securing appointment on 'compassionate' ground is posted far away from the family of the deceased, s/he will not be able to give the required economic support to the dependents of the deceased as s/he will be forced to maintain two establishments, one at the place where s/he is posted and the other at the place where the family of the deceased is living.
29. One can see that 'public interest' sometimes coalesces with 'private interest'. But that does not mean that in the cases of ICT on the grounds of 'spouse', 'compassionate' and 'Physical disability' , the transfers are motivated by private interest alone. As it was seen, in the case of ICT on 'spouse' ground, it is the policy of the Govt. to have husbands and wife posting together considering the welfare of the family as a single unit. Since the parties involved in such ICTs are individual human beings, necessarily, such ICTs serve individual interests as well. But one shall not be oblivious to the larger public interest resulting from such transfers. Such ICTs help to remove the frustration of the spouses who live separately on account of their posting at different places. If they are placed at the same place, it would facilitate good parenting and good upbringing of children. It is a well-accepted fact that in the absence of proper parental care children may become problematic and disoriented without proper guidance. The Directive Principles of State Policy in Article 39 (f) envisages to provide opportunity to children to develop in a healthy manner and in conditions of freedom and dignity and to protect them from moral and material abandonment .Posting of husband and wife at the same station in ordinary circumstances would provide healthy atmosphere to discharge the official duties and responsibilities more efficiently and satisfactorily. In that way, it serves the social interest as well. It promotes the public interest of good governance by putting in improved efficiency in government service. Therefore, we consider that the policy of the Govt. to allow transfer on 'spouse' ground without loss of seniority has a social goal as envisaged in Part IV of the Constitution and that the same is in the larger interest of the public.
30. The rationale for special concessions to Govt. servants appointed on 'compassionate', 'physically handicapped' grounds, and to the women employees being rooted on the Constitutional ideals, a fortiori it is only in public interest that they are given a special treatment in the matter of ICT. In the case of Govt. servants with physical disability, ICT without loss of seniority is in tune with the fundamental duty under Art. 51A (k) of the Constitution which calls for facilitating the differently abled persons to strive towards excellence in all spheres of individual and collective activity. Any policy that promotes the interests of women and children is in concordance with the Directive Principles of State Policy envisaged in Part IV of the Constitution of India and hence necessarily to be regarded as in public interest.
31. Art. 37 of the Constitution directs that the principles contained in Part IV of the Constitution are fundamental in the governance of the country and that it shall be duty of the State [and its instrumentalities] to apply those principles in making laws which will enjoy the saving shield of Art. 31C.
32. Another question to be examined in this context is the competency of the Board to issue Annexure- A/5 to A/7 instructions protecting the seniority of the employees transferred in ICT. It is the settled law that even in the exercise of power in Public Interest, such exercises must satisfy reasonableness. In Premium Granites case(supra), it was held by the Apex Court that the exercise of powers in public interest cannot be made in arbitrary or capricious manner based merely on the subjective satisfaction of the authority (para 48-49 of the Apex Court decision).
33. We note that as per the Govt. of India (Allocation of Business), Rules, 1995, DoPT is the authorised wing of the government to deal with service matters of Govt. servants under the Union of India. We are of the view that Annexure A/5 & A/7 have been issued by the Board keeping in tune with the policy of the Govt. of India regarding posting of husband and wife together notified through various OMs issued by the DoPT. Similarly, we are of the opinion that Annexure A/5 to A/7 are in tune with para 3.5 of the Annexure A/16 OM consolidated orders on seniority issued by the DoPT on 3.7.86. Since DoPT is the specialised wing of the Govt. of India anointed to deal with personnel administration, one may doubt whether the Board, which is only a lower formation under the Department of Revenue in the Ministry of Finance, is competent to issue Annexure A/5 to A/7 administrative instructions on a highly sensitive issue relating to the seniority of employees. The High Court directed this Tribunal to implead the DoPT and other interested persons. In the OAs captioned above, DoPT has already been arrayed as a party.
34. The next aspect we have to deal with is the heart burn of the officers who are already in the host seniority unit where the officers of ICT on 'spouse' ground, 'compassionate' ground and 'physical disability' ground have come and joined without any loss of seniority. In this regard, Shri O.V.Radhakrishnan made strenuous arguments to drive home the position that seniority is not a vested right of the Govt. servants but it is only one of the facets of the different interests Govt. servants may have in the Govt. service. He further attempted to establish that since the right to seniority and right to promotion are not vested rights of a Govt. servant, they cannot come up with a grievance that by granting the ICT on 'spouse' ground, 'compassionate' ground or 'physical handicapped' ground without loss of seniority, their seniority would be infringed. He further argued that a Govt. servant has only a right to be considered for promotion which is a fundamental right protected under Article 16, but not a right for promotion per se. Shri O.V.Radhakrishnan referred to the decision of the Apex Court in Ashok Kumar Gupta v. State of U.P. (1997) 5 SCC 201 where the Apex Court held :
'21. Seniority is a facet of interest. When the Rules prescribe the method of selection/ recruitment, seniority is governed by the ranking given and governed by such Rules as was held by a Bench of three judges in A.K.Bhatnagar v. Union of India. In Indian Administrative Service Association, U.P. v. Union of India, another bench of three judges had held that no one has a vested right to promotion or seniority but an officer has an interest to seniority acquired by working out the Rules. In Akhil Bharatiya Soshit Karamchari Sangh v. Union of India a Bench to which two of us, K.Ramaswamy and G.B.Patnaik J.J., were members, following above ratio, held that no one has a vested right to promotion or seniority but an officer has an interest to seniority acquired by working out the Rules'.
In State of Jammu and Kashmir v. T.N.Khosla AIR (1974) SC 1 the Apex court said:.
'22. If Rules governing conditions of service cannot ever operate to the prejudice of those who are already in service, the age of superannuation should have remained immutable and schemes of compulsory retirement in public interest ought to have foundered on the rock of retroactivity. But such is not the implication of service rules nor is it their true description to say that because they affect existing employees they are retrospective. It is well settled that though employment under the government like that under any other master may have a contractual origin, the Government servant acquires a 'status' on appointment to his office. As a result, his rights and obligations are liable to be determined under statutory or Constitutional authority which for its exercise requires no reciprocal consent. The Government can alter the terms and conditions of its employees unilaterally and though in modern times consensus in matters relating to public services is often attempted to be achieved, consent is not a pre-condition of the validity of rules of service, the contractual origin of the service notwithstanding'. [ emphasis added]
35. Arguing that chances of promotion are not conditions of service, the senior counsel referred to yet another decision of the Apex Court in K.Jagadeesan v. Union of India (1990) 2 SCC 228. The court held:
' a right to be considered for promotion is a term of service, but mere chance of promotion are not; so also the eligibility for promotionb�&.. Chances of promotion are not conditions of service which are defeasible in accordance with the Rules. Thus it is a settled principle in the service jurisprudence that mere chances of promotion are not conditions of service and a candidate appointed in accordance with the rules can steal a march over his erstwhile seniors in the feeder/ lower cadre. . . . ' He then referred to the dictum of the Apex Court in Ashok Kumar Gupta case (supra):
'no one has vested right to promotion or seniority but an officer has an interest to seniority acquired by working out the Rules. It could be taken away only by operation of valid law'.
The Apex Court further observed in Ashok Kumar Gupta :
'22. In service jurisprudence, a distinction between right and interest has always been maintained. Seniority is a facet of interest. When the Rules prescribe the methods of selection/ recruitment, seniority is governed by the ranging given and governed by such rules as was held by a bench of three judges in A.K.Bhatnagar & Ors. V. Union of India & Ors [(1993) supp. 1 SCC 730 in paras 14 & 15] another Bench of three judges had held that no one has a vested right to promotion or seniority but an officer has an interest to seniority acquired by working out the rules. In A.B.S.K.Sangh v. Union of India & Ors [JT (1996) SC 274], a Bench to which two of us, K.Ramaswamy & G.P.Pattanaik, JJ., were members, following the above ratio, held that no one has a 'vested right to promotion or seniority but an officer has an interest to seniority acquired by working out the rules'. It could be taken away only by operation of valid law. In M.D. Shujat Ali & Ors. v. Union of India & Ors [(1975) 1 SCR 449] a Constitution Bench had held that Rule 18 of the Andhra Pradesh Engineering Service Rules which confers a right of actual promotion or a right to be considered by promotion is a rule prescribing conditions of service. In Md.Bhakar v. Krishna Reddy [1970 SLR 768], another Bench of three judges had held that any rule which affects that promotion of a person relates to conditions of service. In State of Mysore v. G.B.Purohit [1967 SLR 753] a Bench of two judges had held that the rule which merely affects chances of promotion cannot be regarded as varying condition of service. In Ramchandra Shankar Deodhar v. State of Maharashtra [(1974) 1 SCC 317], a Constitution Bench had held that a rule which merely affects the changes of promotion does not amount to change in the conditions of service. In Syed Khalid Rizvi & Ors. V. Union of India & Ors [(1993) supp. 3 SCC 317] a Bench of three judges following the above ratio, with approval, had held at page 602 para 31, that no employee has a right to promotion but he has only the right to be considered for promotion according to rules. Chances of promotion are not conditions of service and are defeasible in accordance with the law.'
36. With regard to the right of an employee for promotion to the next post on the basis of the length of service, Shri O.V.Radhakrishnan referred to Renu Mullick v. Union of India and another (1994) 1 SCC 373, wherein it was held that as per Group C posts Recruitment Rules of Central Excise and Land Customs Department, service rendered prior to unilateral transfer at own request also counts for determining the eligibility condition for promotion though such transfer downgrades seniority. Shri Radhakrishnan cited another decision of Apex Court in Dwijen Chandra Sarkar and Another v. Union of India 1999 (2) SCC 119 where it was held that in grade promotion seniority has no relevance.
37. On going through the ratio of the afore cited cases, it can be seen that right of seniority and promotion are not legally enforceable rights. Though the prospects of being considered for promotion is a right, seniority is only an interest- not a right or a condition of service. The administrative authorities or Govt. has the power to regulate the mattes relating to seniority and promotions by rules, policy decisions / administrative decisions. Mere aspirations for promotion/ chances of promotion therefore do not call for protection from court/ Tribunal. As stated above, the only right of the Govt. servant is the right to be considered for promotion. In the case of ICT on the grounds of 'spouse', 'compassionate' or 'physical disability', one can see an interplay of both public interest and private interest each coalescing with the other. Such transfers are to be treated as in the public interest as it reflects the policy of the Govt. manifested through the OMs issued by the DoPT. As observed earlier, the special concessions given to persons with disability is on account of the statutory obligation of the government for bringing such persons to the mainstream of the society and for enabling such persons to live with dignity. In Annexure A/5 to A/7 & A/12 administrative instructions on ICTs, one can see a fusion of the Constitutional protection of the right to equality and the guiding principles of good governance envisaged in part IV of the Constitution.
38. Viewing from the aforesaid angle, we are of the opinion that protection of seniority given to the employees who are transferred on grounds of 'spouse' , 'compassionate' or 'physical disability' is not an arbitrary decision on the part of the administration but is based on the intelligible differentia buttressed by the principles envisaged in Part IV of the Constitution which are fundamental in the governance of the country . It appears that the service rules of the respondent Department do not have specific provisions to deal with the ICTs in the instant cases. Therefore, the administrative instructions in the form of executive orders of DoPT govern the field. Such instructions have the binding force of executive orders under Article 73 of the Constitution.
39. As noted above, instructions in A/5 to A/7 were issued keeping in tune with A/8 and para 3.5 of Annexure A/6 OM of DoPT. We are of the view that Annexure A/12 instruction issued subsequenty is a reiteration of Annexure A/5 to A/7 but permitting ICT with loss of seniority on other grounds, without upsetting the instructions contained in Annexure A/5 to A/7. In our view, Annexure A/12 is only clarificatory in nature in the context of a nebulous situation that prevailed in the permissibility of ICT. While stating that ICT is permissible with loss of seniority, Annexure A/12 has not at all disturbed the policy decisions contained in A/5 to A/7.
40. In the light of the above discussion, we are of the opinion that the prayers of the applicants in the OAs captioned above are only to be allowed. We do so. While holding that Annexure A/5 to A/7 and A/12 are applicable only to the Group B, C & D employees belonging to the different commissionerates under the Central Board of Excise and Customs we make it clear that this order will not stand in the way of the DoPT to formulate appropriate comprehensive instructions on inter-cadre transfer that could be made applicable to all departments /formations under the Central Government.
41. Parties shall suffer their costs.
42. Incorporate of a copy each of this order in the files of OA No. 400/2010, OA No. 262/2012, OA No. 505/2011 & OA No. 784/2012.
(Dated, the 10th day of July, 2015)
P.GOPINATH U.SARATHCHANDRAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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