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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.

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.

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.

[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.