Case Law Details
Sumit & Ors Vs Union of India (Central Administrative Tribunal, Delhi)
Central Administrative Tribunal (CAT), Principal Bench, New Delhi, has ruled on a case filed by Income Tax Department employees challenging the Loan Basis Transfer Policy of 2020. The applicants, comprising Inspectors, Stenographers, and Tax Assistants (Groups B & C), argued that the policy was discriminatory as it did not align with the IRS Transfer Policy, 2010, applicable to Group A officers. They sought equal treatment in inter-region transfers, especially for employees with spouses in government jobs. The applicants invoked constitutional provisions, including Article 14 (equality before the law), and referenced the Department of Personnel and Training (DoPT) guidelines on spouse postings.
The tribunal, recognizing the grievances, remanded the matter to the Central Board of Direct Taxes (CBDT) for reconsideration. It directed the CBDT to develop a fair and equitable transfer policy for Group B and C employees, ensuring consistency with Group A regulations. The tribunal emphasized the importance of a non-arbitrary and compassionate HR policy, stating that an improved system would enhance employee motivation and efficiency. The CBDT has been given six months to implement the revised policy. The case was disposed of with no order on costs.
Counsel for Applicants – Rishabh Sancheti With Padmapriya
FULL TEXT OF THE ORDER OF CENTRAL ADMINISTRATIVE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI
Per Hon’ble Dr. Sumeet Jerath, Member (A) :
The present OA has been filed by the applicants under Section 19 of the AT Act, 1985 seeking the following reliefs :-
“8 (i) Direct the Respondents to extend the benefits of the guidelines of DoPT dated 30.09.2009 as well as the IRS Transfer Policy, 2010.
(ii) Issue appropriate order/directions to the Respondents to devise new policies for Inter-Region Transfer of Group- C and Group-B employees (whose spouse are employed in Central Government/State Government/Public Sector Undertaking), such policies being at par with those for Group-A employees.
(iii) Issue appropriate /order/directions to the Respondents for replacing the prevailing norm of regional seniority with All India Seniority for Group-B and Group C officials of the Income tax Department.
(iv) Issue appropriate /order/directions to set aside the Loan Basis Policy dated 22.12.2020 for transfer of Group-C employees (having spouse ground, whose spouse are employed in Central Government/State Government/Public Sector Undertaking) of the Income Tax Department.
(v) Direct the Respondents to set up a Grievance Redressal Mechanism in the department for effective redressal of complaints.
(vi) Direct all consequential benefits to be accorded to the Applicants.
(vii) Issue appropriate /order/directions to protect the seniority of the Applicants herein; and
(viii) Grant such other relief/s, including costs of this Original Application, as may deemed fit and proper under the facts and circumstances of the case, by this Hon’ble Court. ”
2. The factual matrix of the case as per the counsel of the applicants is that the applicants are employed in Income Tax Department which is under the direct control of Central Board of Direct Taxes (CBDT) and hold the post of Inspector, Steno and Tax Assistants – Groups ‘B’ and ‘C’ after clearing the Staff Selection Commission (SSC) Combined Graduate Level Examination (CGLE) and Stenographer Grade ‘C’ and ‘D’ Examination. The applicants have assailed the impugned policy of CBDT issued by HRD/CBDT bearing No. F. No. HRD/CMD-I/108/1/2020-21/6406 dated 22.12.2020 on Loan basis transfer. Through this Policy, CBDT has resorted to fulfill the transfer needs of Group-C employees whose spouse are employed in government sector/undertakings, while completely ignoring the IRS Transfer Policy, 2010, which serves as the basis for Group-A employees, thereby following discriminatory, practices for transfer of employees of different groups.
Learned counsel pressed upon the DoPT OM bearing No. F. No. 28034/9/2009-Estt.(A) dated 30.09.2009, on the subject of posting of husband and wife at the same station which provides that when both spouses are in same Central Service or working in same Department, they may mandatorily be posted at the same station. He averred that the said O.M. provided detailed guidelines for transfer of spouses belonging to the All India Services/Central Services/Public Sector Undertaking/State Government.
He also relied upon the IRS Transfer Policy, 2010 bearing No. HRD/PM/444/2008-2009/1515 dated 16.02.2010, issued by the CBDT/HRD which pertains to transfer/placement of Group-A (IRS Cadre), of Income Tax Department. Para 6.2 of which provides that husband and wife may be posted at the same station subject to availability of posts, in accordance with extant instructions from the Government of India. He highlighted the discrimination against Group ‘C’ employees by respondent no. 2 which he brought out in the following table :-
The applicants have invoked the following provisions of Constitution of India also in his arguments :-
‘i. Article 14:Equality before law
“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
ii. Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
“(1)….
(2)…
(3) Nothing in this article shall prevent the State from making any special provision for women and children
(4)…
(5)..”
iii. Article 39: Certain principles of policy to be followed by the State
“The State shall, in particular, direct its policy towards securing –
(a) That the citizens, men and women equally, have the right to an adequate means of livelihood
(b)…
(c) …
(d) …
(e) …
(f) That children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.”
iv. Article 45: Provision for early childhood care and education to children below the age of six years
“The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years.”
Further, other conventions for welfare and optimum development of children and women were also to be followed in letter and spirit by the Government, but the same did not find any mention while framing the Loan Basis Policy.
3. The counsel of the applicants argued on the following grounds :-
‘A. It is a clear violation of Article 14 of the Constitution of India since employees of the same department, are treated differently. Merely because the Applicants herein are non-gazetted employees and belong to Group-C, there exists no justification for such a treatment being meted out to them.
B. The Loan Basis Policy provides for the right of the officials to stay with their spouses and take care of their children only for 03 years, extendable by another 02 years only and that too with the approval of the Board.
C. Both the ICT Policy and the Loan Basis Policy are in clear violation of the DoPT guidelines dated 30.09.2009. It is submitted that so far as ICT Policy was concerned, it was drafted when there was regional recruitment and hence, the provision of seniority loss was put in (i.e., by not counting the period of service rendered in the parent region for seniority purpose). In such circumstances, the recruitment began on All India Level through SSC with All India Service Liability, however, the department kept seniority regional as it used to be when there was regional recruitment and therefore, the provision of seniority loss continued in ICT. Per contra, it is submitted that the Loan Basis Policy was implemented to consider transfer of cases on compassionate grounds. However, the same can be been availed only once in lifetime, that too for a period of 03 years which was extendable by another 02 years with the approval of the Board. It is submitted that as per the guidelines issued in the Office Memorandum dated 30.09.2009 was concerned, it solely provided that the husband and wife may mandatorily be posted at the same station. Therefore, both the ICT Policy as well the Loan Basis Policy are in complete violation of the Guidelines dated 30.09.2009 issued by the Government.
D. Under the Loan Basis Policy, the transferee has to move along with post on ‘temporary’ transfer from home region to the recipient region, with the post reverting back to the home region automatically with the reversion of the official. Further, the transferee would be considered for promotion in higher grade in his/her home region as per eligibility and seniority assigned to him/her in the home region only upon reversion, and not in the recipient region.
E. The Loan Basis Policy did not take into consideration the clauses of IRS Transfer Policy, 2010 (more specifically clause 6.2) which categorically provided for posting of husband and wife at the same station. It is imperative to highlight that the IRS Transfer Policy, 2010 was approved and implemented by the Respondent no.2 herein which had also framed the Loan Basis Policy for Group-C employees of the Income Tax Department.
Even then, the Respondent No.2 failed by not considering these guidelines issued by the Government at the time of devising the Loan Basis Policy. This clearly shows the arbitrary, inconsiderate and discriminatory approach adopted by the Respondent No.2 towards the Group-C employees by Policy, 2010 which, at the first place, was approved by them.
F. The Loan Basis Policy clearly showcases that it is more of a staffing scheme which is used by the department to fulfill their administrative requirement and such scheme has nothing to do with any sympathetic consideration.
G. Even though all employees of Group-C are recruited post clearing All India level examination and also have an All India Service Liability, yet basis for seniority remains to be regional and not All India. This proves to be extremely detrimental to the overall career and growth of the official seeking a transfer.
H. The Loan Basis Policy sought maximum discretion in the hands of CCAs which gives unnecessary and unbridled power to the CCAs who has absolutely no system of checks and balances and the decision so given by the Pr. CCIT/CCA is final.
I. The Loan Basis Policy only allows for transfer of the official to the recipient region for a maximum of five years. This implies that a Group-C employee only has the right to reside with his/her spouse for a maximum of five years, out of the entire duration of their marriage.’
4. Various rulings of the Hon’ble Apex Court and other Courts have been cited by the counsel for the applicants to support his arguments which are enlisted below :-
1. S.K. Nausad Rahaman and Others vs. UOI & Ors. in CA No. 1243/2022 dated 10.03.2022 ;
2. Shafin Jahan K. M. Ashokan & Ors. AIR 2018 SC 357;
3. Pratibha Rani UOI in CA No. 3792/2019 dated 10.04.2019 ;
4. Society for Unaided Private Schools of Rajasthan UOI & Anr. (2012) 6 SCC 1 wherein the Hon’ble Supreme Court held as under :-
“213. The Universal Declaration of Human Rights, 1948 (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR), UN Convention on the Rights of the Child (UNCRC), 1989 throw considerable light on the duties and responsibilities of State as well as non-State actors for the progressive realisation of children’s rights.
215. UDHR, ICCPR, ICESCR, UNCRC and other related international covenants guarantee children civil, political, economic, social and cultural rights. Article 4 of UNCRC requires the State to undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognised in the Convention.”
5. Lakshmi Bhavya Tanneeru UOI & Ors., WP (C) No. 5533/2021 dated 16.11.2021 wherein following has been categorically observed :-
“11.2. The provisions made in the 1954 Cadre Rules, when read with OM dated 30.09.2009, suggest that, the object and purpose of permitting inter-cadre transfer are, to ensure holistic progress and well-being of the members of AIS. The object and purpose appear to be to enhance the efficiency of the officers by ensuring that they are not weighed down because of marital discord and unhappiness on the home front.
12. The Petitioner’s assertion that denial of her request for inter-cadre transfer has resulted in an infraction of her right to family life; in our opinion, has much weight. The fact that such rights are recognized as part of human rights, clearly emerges, upon a perusal of Article 8 of the European Convention on Human Rights (hereafter referred to as “Convention” 1. A plain reading of Article 8(1) of the Convention discloses that every individual has the right to insist that the State respects her/his private and family life, home and correspondence.
12.2…. We have no doubt that the right to meaningful family life, which allows a person to live a fulfilling life and helps in retaining her/his physical, psychological and emotional integrity would find a place in the four comers of Article 21 of the Constitution of India. Therefore, when the State unreasonably denies a request of an employee [in this case, the petitioner seeking inter-alia transfer, it impinges upon such person’s right to demand respect for her/his family.”
6. Exploitation of Children in Orphanages in State of Tamil Nadu, In re vs. UOI, (2017) 7 SCC 578, wherein it has been categorically laid down as under :-
“87. Needless to say, it is obligatory on the part of the Union Government as well as of the State Governments to ensure that the provisions of laws enacted by Parliament are faithfully and sincerely implemented and the statutory Commissions constituted under the provisions of the CPCR Act must be allowed to function as independent statutory bodies under the provisions of the said Act, the Pocso Act as well as the JJ Act.
88. The rule of law includes adherence to parliamentary legislation by all concerned including the State Governments and the Union Government and it would be extremely unfortunate if the Governments concerned voluntarily and knowingly flout the provisions of law solemnly enacted by Parliament. We need say nothing more on this subject, except that laws solemnly enacted by Parliament cannot be insulted by putting hurdles in the effective functioning of these Commissions, such as by not appointing the Chairperson or Members.”
7. Mayank Kumar & Ors. vs. UOI & Ors. W.P. (C) No. 989/2021.”
5. The counsel of the respondents countered the above arguments in his short reply and stated that the candidates were asked to submit their choice of posting among various zones of the Department Pan India and were allotted zone of posting as per their merit-based rankings secured by them in the SSC exam and as per availability of vacancies in their category (UR, OBC, Sc, ST etc.). Moreover, the applicants have given their willingness and acceptance to join the place of posting offered to them and some candidates applied for Inter Charge Transfer (ICT) from their parent place of posting to different zones for various reasons. The said requests were considered by the Cadre Controlling Authorities on merits. Certain conditions were also laid down to consider such cases vide Circular No F. No. A-22020/76/89-Ad-ViI dated 14.05.1990 which reads as under :-
“(a) No request for inter-charge transfer shall be entertained in respect of posts, recruitment to which is made 100% by promotion (e.g. Tax Assistants, Head Clerks, Supervisors Gr-I and II. Stenographers Gr II and I etc.)
(b) Requests for transfer on compassionate grounds shall be entertained only in respect of posts, recruitment to which is made either by direct recruitment or partly through direct recruitment and partly through promotion.
(c) No request for inter-charge transfer shall be entertained from a person (who may otherwise be eligible to make such a request under (b) above) unless he or she has put in at least three years of service, in that grade.
(d) A person who seeks transfer, should apply to the head of the Department/Chief Commissioner/Director General under whom he is working, who will on being satisfied, take up the matter with his counter-part in the Charge to which the employee seeks transfer.
The latter head of the Department will examine the request on merits and pass necessary orders for absorption of the person seeking transfer. Such request shall be considered and conceded only against a clear vacancy. His decision in the matter shall be final. No request for re-transfer shall be entertained under any circumstances.”
Learned counsel contented that the aforesaid circular clarified that the Inter Charge Transfer (ICT) are considered by the recipient Cadre Controlling Authority (CCA) on merits and wherever considered necessary. He added that the decision of the recipient CCA was final but it did not mean that mere putting an application for ICT or forwarding the same by parent CCA to recipient CCA would guarantee such transfers. Thus, the applicants cannot claim ICT as a matter of right.
According to the respondents the true spirit of the aforesaid circular was to facilitate the officials of the Department for transfer from one region to another for their benefit to unite them with their family without affecting their promotional avenues and loss of seniority of the residual officials. However, the said circular dated 14.05.1990 was challenged by the ICT officials which adversely affected the promotional avenues of the residual officials of Delhi region. Subsequently, this matter was dragged before the Court by the ICT officials seeking seniority at par with their SSC batchmates by counting their past service on the basis of their year of passing departmental examination. Based on the Court Orders, they were promoted before their seniors by keeping their length of service though they were junior in the seniority list and thus become senior to the original allottees of Delhi region in the next cadre who were placed over and above in previous cadre. This caused a large number of litigations in Delhi region which not only hampered the smooth functioning of the Department but also forced the administrative office to divert the manpower from their assigned job to carry out frequent review of DPCs, managing litigations and drawing up of frequent seniority / eligibility lists etc.
He further added that keeping in view the hardships faced by the needy employees who applied for ICT on extreme compassionate grounds were considered for Inter Charge Transfer by Delhi zone in order to unite them with their family members. He informed that from 2015 onwards, Delhi zone allowed more than 450 employees to join Delhi charge from other charges (zones) through Inter Charge Transfer in various cadres as per their genuineness, eligibility and availability of vacancy in their category. This was done in accordance with the governing circular dated 14.05.1990 and subsequent circulars / instructions / relaxations issued by CBDT in the matter from time to time. In considering such applications, principle of ‘first come first serve’ was strictly adhered to. However, Delhi zone was left with large number of pending applications which were required to be considered for such transfers. Accordingly, a committee was constituted to consider the issue and as per recommendations of the committee, 344 pending applications were returned unapproved to such employees’ parent zone of posting.
As per the counsel, a large number of employees apply for Inter Commissionerate (Charge) Transfers (ICT) from other zones to Delhi zone as Delhi is a central place for North India and everybody of North India belonging to Haryana, Chandigarh, Punjab, U.P. West, Uttarakhand, Delhi NCR etc. wants to be posted in Delhi. So, in spite of applying for transfer to their native states, many prefer Delhi as most sought-after place for transfer. However, all of them cannot be accommodated in Delhi region. Further, a meritorious candidate also cannot be forced to join other place of posting once he opted for Delhi and if he is asked to do so he would also opt for ICT to Delhi. Hence, this would become a never ending cycle which is neither fair not justified. This would lead to lack of meritorious candidates opting for Income Tax Department as due to this policy they will hardly get Delhi Region. Consequently, the department would face shortage of manpower. For more clarity learned counsel gave illustration also in his counter. Later, the CBDT withdrew the ICT Policy on 22.12.2020 and opened a new window for transfers of Group ‘C’ officials on Loan Basis.The committee vide its report dated 06.01.2021 recommended that ‘pending applications for ICT may not be considered for Inter Charge Transfer and the same may be reverted to their respective Pr. CCIT(CCA) charges [parent zone]. However, the desirous officials may apply afresh for their ‘transfers on loan basis as per latest CBDT (HRD) directions dated 22.12.2020 issued on the subject “Withdrawing of ICT Policy and Transfer on Loan Basis’ of Group ‘C’ Officials.’ Accordingly, all pending ICT applications for ICT from Mumbai to Delhi charge in the cadres of Inspectors and other non-gazetted officials were returned to the Pr. CCIT, Mumbai vide letters dated 12.02.2021.
6. The counsel of the respondents relied upon the decision of Hon’ble Apex Court in Civil Appeal No. 2348 of 1993 dated 27.04.1993 in Union of India vs. S. L. Abbas which inter alia reads 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 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, the husband and the wife must be posted at the same place. The said guideline, however, does not confer upon the government employee a legally enforceable right.
9. Shri Goswami, learned counsel for the respondent relies upon the decision of this Court in Bank of India v. Jagjit Singh Mehta rendered by a Bench of which one of us (J.S. Verma J.) was a member. On a perusal of the judgment, we do not think it supports the respondent in any manner. It is observed therein (SCC pp.308-09, para 5 : ATC pp. 530-31, para 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…………… 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.”
10. The said observations in fact tend to negative the respondent’s contentions instead of supporting them. The judgment also does not support the respondents’ contention that if such an order is questioned in a Court or the Tribunal, the authority is obliged to justify the transfer by adducing the reasons therefor. It does not also say that the Court or the Tribunal can quash the order of transfer, if any of the administrative instructions/guidelines are not followed, much less can it be characterised as mala fide for that reason. To reiterate, the order of transfer can be questioned in a court or Tribunal only where it is passed mala fide or where it is made in violation of the statutory provisions.”
He further relied on CAT, Bangalore Bench order dated 29.08.2022 in OA No. 237/2022 which had dismissed the OA of Shri Ajab Singh & Other on the following grounds :-
“6. At the outset, we are afraid to entertain the single Application on behalf of 15 applicants seeking for Inter Charge Transfer. Though the policy may be the same, the factual aspects relating to individual applicant would certainly differ. In the circumstances of merely making a bald statement regarding the representation said to have been made by the applicants from 2015 onwards but not supported by the relevant material documents pertaining to each case, it would be difficult for the Tribunal to examine the merit of each case vis-à-vis the withdrawal of ICT policy vide CBDT circular dated 22.1.2020. Challenging the withdrawal of the ICT policy, indeed is unsustainable.
It is well settled legal principle that the employee has no vested right to choose the place of work and it is for the employer to decide about the transfer of the employees based on public interest and administrative exigencies. The terms of the ICT policy would not be perennial in nature, more particularly, when such scheme was withdrawn. These policy decisions are not ordinarily amenable to judicial review and in particular the transfer matters, unless arbitrariness or malafides are alleged and proved or such orders are issued by an authority having no jurisdiction. Even if we examine the case of the applicant in this background, no cogent ground is found to reopen the issues which do not subsist. Having regard to the subsequent developments i.e., on withdrawal of the ICT policy itself by CBDT, no directions could be issued to the respondents to consider the representations of the applicants at this length of time.
8. The Courts/Tribunals can come to the rescue of the litigant who is vigilant about his rights and not to persons who sleep over the matter for years together and rise from the slumber like a phoenix. Thus, the belated claims made by the applicant to suit his convenience deserve to be rejected on the ground of delay and laches. Though an attempt was made by the applicant to offer un explanation for the delay caused by filing MA 206/2022, the same cannot be considered as satisfactory explanation to condone the delay inordinate at this length of time and to grant the reliefs as sought for.
9. In our considered opinion, the Original Application is bereft of merits. Thus, for the reasons discussed above, both the MA No. 206/2022 and Original Application No. 237/2022 stand dismissed. No order as to costs.”
7. A detailed reply was to be filed by the respondents which was never filed despite several dates and indulgence given by the Tribunal. This was heard at some length by the Tribunal on 12.01.2023 and the following was recorded in the order sheets :-
“MA filed vide Diary No. 5620/2022
The present Original Applicant has been filed impugning the policy of the CBDT whereby they have a policy of transfer on “loan basis” which is dated 22.12.2020. The policy of “loan basis” transfer has been resorted to fulfill the transfer needs of the Group ‘C’ employees whereas for the Group ‘A’ employees the transfer policy is the IRS Transfer policy of 2010 and the same is the subject matter of challenge in the present Original Application. The same has been challenged mainly on the ground that the policy referred herein are differentiating and discriminating when it comes to transfer on compassionate grounds and spouse grounds between Group A’ and Group ‘C’ employees amongst other grounds.
Today, counsel for the applicant submits that similar issue in the Central Excise and Customs Department had come up before the Hon’ble Apex Court in Civil Appeal No. 1243 of 2022 in the matter of SK Nausad Rehaman & Ors. Vs. Union of India & Ors. decided on 10.03.2022 and in the said case following directions have been issued:-
“54. The State’s interference in the rights of privacy, dignity, and family life of persons must be proportional. This Court in Akshay N. Patel v. Reserve Bank of India, held that the framing of policy must meet an integrated proportionality analysis which answers whether the measure is:
(i) in furtherance of a legitimate aim;
(ii) suitable for achieving the aim;
(iii) necessary for achieving the aim; and
(iii) adequately balanced with the rights of the individual.
55. The State in the present case has been guided by two objectives: first, the potential for abuse of ICTs and second, the distortion which is caused in service leading to plethora of litigation. The State while formulating a policy for its own employees has to give due consideration to the importance of protecting family life as an element of the dignity of the person and a postulate of privacy. How a particular policy should be modulated to take into account the necessities of maintaining family life may be left at the threshold to be determined by the State. In crafting its policy however the State cannot be heard to say that it will be oblivious to basic constitutional values, including the preservation of family life which is an incident of Article 21.
56. The circular dated 20 September 2018 has taken into account, what it describes “exceptional circumstances” such as “extreme compassionate grounds Leaving these categories undefined, the circular allows for individual cases to be determined on their merits on a case by case basis. while prescribing that transfers on a “loan basis” may be allowed subject to administrative requirements with a tenure of three years, extendable by a further period of two years. While proscribing ICTs which envisage absorption into a cadre of a person from a distinct cadre, the circular permits a transfer for a stipulated period on a loan basis. Whether such a provision should be suitably enhanced to specifically include cases involving
(i) postings of spouses:
(ii) disabled persons; or
(iii) compassionate transfers, is a matter which should be considered at a policy level by the Board.”
He also points out that in this OA although the notices were issued way back on 11.02.2021, almost one year has gone by, but respondents have not yet filed any reply. In the meantime, the present MA had been filed seeking impleadment of few persons as new applicants in this OA. Notices in the said MA have also been issued, but no reply has filed therein again.
The matter was heard at some length and after considering all the issues and the latest judgment of the Hon’ble Apex Court the respondents are directed to file reply in the Original Application and in the said reply they would specifically also reply on the action taken by them on the judgment passed by the Hon’ble Apex Court and whether they propose to take any action in their department also considering the law laid down by the Hon’ble Apex Court. The said MA for impleadment shall be considered at the time of hearing.
Last chance to file reply in the OA was given on 23.11.2022. One last chance of three weeks’ time is being granted and it is made clear that if within three weeks reply is not filed in the OA No. 321/2022, their right to file reply shall stand forfeited.”
8. Today, also we heard the counsel of both the sides ; perused the relevant documents on record and the judgment of Hon’ble Apex Court. The detailed reply has still not been filed by the respondents. We have given our thoughtful consideration to both points of facts and points of law in this case. We have taken cognizance of the ratio given vide paras 54, 55, 56 and 57 of the Hon’ble Apex Court Judgment given in Civil Appeal No. 1243 of 2022 in S. K. Naudhad Rahman and Others vs. Union of India and Others which are reiterated and reproduced below :-
“54. The State’s interference in the rights of privacy, dignity, and family life of persons must be proportional. This Court in Akshay N. Patel v. Reserve Bank of India, held that the framing of policy must meet an integrated proportionality analysis which answers whether the measure is:
(i) in furtherance of a legitimate aim;
(ii) suitable for achieving the aim;
(iii) necessary for achieving the alm; and
(iv) adequately balanced with the rights of the individual.
55. The State in the present case has been guided by two objectives first, the potential for abuse of ICTs and second, the distortion which is caused in service leading to plethora of litigation. The State while formulating a policy for its own employees has to give due consideration to the importance of protecting family life as an element of the dignity of the person and a postulate of privacy. How a particular policy should be modulated to take into account the necessities of maintaining family life may be left at the threshold to be determined by the State. In crafting its policy however the State cannot be heard to say that it will be oblivious to basic constitutional values, including the preservation of family life which is an incident of Article 21.
56. The circular dated 20 September 2018 has taken into account, what it describes “exceptional circumstances” such as “extreme compassionate grounds”. Leaving these categories undefined, the circular allows for individual cases to be determined on their merits on a case by case basis, while prescribing that transfers on a “loan basis” may be allowed subject to administrative requirements with a tenure of three years, extendable by a further period of two years. While proscribing ICTs which envisage absorption into a cadre of a person from a distinct cadre, the circular permits a transfer for a stipulated period on a loan basis. Whether such a provision should be suitably enhanced to specifically include cases involving:
(i) postings of spouses;
(ii) disabled persons; or
(iii) compassionate transfers, is a matter which should be considered at a policy level by the Board.
57. In considering whether any modification of the policy is necessary, they must bear in mind the need for a proportional relationship between the objects of the policy and the means which are adopted to implement it. The policy above all has to fulfill the test of legitimacy, suitability, necessity and of balancing the values which underlie a decision making process informed by constitutional values. Hence while we uphold the judgment of the Division Bench of the Kerala High Court, we leave it open to the respondents to revisit the policy to accommodate posting of spouses, the needs of the disabled and compassionate grounds. Such an exercise has to be left within the domain of the executive, ensuring in the process that constitutional values which underlie Articles 14, 15 and 16 and Article 21 of the Constitution are duly protected. The appeals shall be disposed of in the above terms.
58. Pending application(s), if any, stand disposed of.”
9. We are cognizant and mindful of the Doctrine of ‘Separationof Powers’ and ‘Checks and Balances’ in Constitutional Law where the three organs of the State – Legislature, Executive and Judiciary have to work judiciously within their independent and respective spheres of work upholding the principle of restraint, reasonableness and responsibility. Formulation of an equitable and empathetic transfer policy giving due regard and consideration to posting of spouses ; disabled persons and compassionate transfers is in the exclusive domain of the Executive as brought out unambiguously vide para 57 of the Apex Court Judgment in S. K. Naushad Rehman and Others vs. UOI : such an exercise has to be left within the domain of the Executive, ensuring in the process that constitutional values which underline Articles 14, 15 and 16 and Article 21 of the Constitution are duly protected.
10. We are therefore of the considered opinion that the ends of justice would be met and the grievances of the applicants be redressed if we remand this matter to Respondent no. 2 – Chairman – CBDT to do the ‘due diligence’ and craft a prudent, humane and compassionate Human Resource (HR) transfer policy – IRS ICT policy for Groups ‘B’ and ‘C’ employees which is neither arbitrary nor discriminatory but in consonance with Group ‘A’ employees. This would strengthen and validate the image of the Government instrumentality – CBDT as a ‘model employer’ in a Welfare State. Needless to say that an empathetic and equitable human resource policy of transfers and postings of Group ‘C’ and Group ‘D’ employees who are at the bottom of the pyramid (BoP) in CBDT would motivate and inspire them more to work with greater devotion, dedication, determination and dynamism as the Direct Tax Collectors of the Country. This exercise should be completed within a period of six months from the date of receipt of certified copy of this order.
11. The instant OA is disposed of in the aforesaid terms. There will be no order as to costs.
Pending MA also stands disposed of accordingly.
