Union of India and others v. Gulshan Kumar and others (OP (CAT) Nos.173, 176 & 190 of 2018)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 10TH DAY OF APRIL 2019 / 20TH CHAITHRA, 1941** ## **OP (CAT).No. 173 of 2018** **ORDER IN OA 956/2017 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** ## **PETITIONERS/RESPONDENTS IN O.A.:** - **1 UNION OF INDIA REPRESENTED BY THE SECRETARY, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, NEW DELHI 110001** - **2 THE CHAIRMAN, CENTRAL BOARD OF EXCISE AND CUSTOMS, NORTH BLOCK, NEW DELHI-110001** - **3 THE JOINT DIRECTOR (HRM-II), DIRECTORATE GENERAL OF HUMAN RESOURCE DEVELOPMENT, CENTRAL BOARD OF EXCISE AND CUSTOMS, 409/8, DEEP SHIKA, RAJENDRA PLACE, NEW DELHI-110008** - **4 THE CHIEF COMMISSIONER, CENTRAL GST AND CENTRAL EXCISE, RANCHI ZONE, 1ST FLOOR, C.R. BUILDING (ANNEXE), BIRCHAND PATEL PATH, PATNA-800001.** - **5 THE CHIEF COMMISSIONER, CENTRAL TAX AND CENTRAL EXCISE, THIRUVANANTHAPURAM ZONE, 1ST FLOOR, C.R. BUILDINGS, I.S.PRESS ROAD, COCHIN-682018** **BY ADVS. ASSISTANT SOLICITOR GENERAL SRI.T.V.VINU, CGC** O.P.(CAT) Nos.173, 176 & 190 of 2018 2 ## **RESPONDENTS/APPLICANTS IN O.A:** **1 GULSHAN KUMAR, AGED 32 YEARS S/O LATE VINOD PANDEY, INSPECTOR OF CENTRAL TAX AND CENTRAL EXCISE, O/O. THE COMMISSIONER, CENTRAL TAX AND CENTRAL EXCISE, HEAD QUARTER PREVENTIVE UNIT, HQRS, GST BHAWAN, PRESS CLUB ROAD, TRIVANDRUM, RESIDING AT AATHIRA. SNRA-18,TC 10/218/1,SAP CAMP, NEAR KV SCHOOL, SWATHY NAGAR, PEROORKADA, TRIVANDRUM 695005** - **2 SRI.GAUTAM KUMAR, AGED 31 YEARS S/O.SRI.BHARAT PRASAD, INSPECTOR OF CENTRAL TAX AND CENTRAL EXCISE, O/O.THE SUPERINTENDENT OF CENTRAL TAX AND CENTRAL EXCISE, SLUEYAS BUILDING, GPO LANE, PULIMOOD, STATUTE, TRIVANDRUM-695001, RESIDING AT TC 24/1085/6, LEKSHMI NIVAS, NEAR ASSUMPTION CHURCH, THYCAUD, TRIVANDRUM-695014** - **3 SRI.ABHIJEET SINGH, AGED 30 YEARS, S/O.LATE SHRI.MURLI MANOHAR SINGH, INSPECTOR OF CENTRAL TAX AND CENTRAL EXCISE, CONFIDENTIAL SECTION, 3RD FLOOR, CR BUILDING, IS PRESS ROAD, KOCHI682018, RESIDING AT FLAT NO.B5, GALAXY ARCADE, BEHIND MOSQUE, ABCLULRAHIMAN PEEDIYEKKAL LANE, SRM ROAD, KALOOR, COCHIN-682018.** - **4 SRI.SANDEEP KUMAR, AGED 29 YEARS S/O.LATE RAMJEE PASWAN, INSPECTOR OF CENTRAL TAX AND CENTRAL EXCISE, O/O.THE SUPERINTENDENT OF CENTRAL TAX AND CENTRAL EXCISE, KOLENCHERY RANGE, OMBALAYIL TOWERS, HOSPITAL JUNCTION, KOLENCHERY, ERNAKULAM-682311 RESIDING AT CENTRAL EXCISE STAFF QUARTER, QTR NO. 107, KAKKANAD, NEAR TV TOWER, ERNAKULAM-682030** - **5 SRI.ASHOK KUMAR, AGED 31 YEARS S/O.SUDHESHWAR MAHTO, INSPECTOR OF CENTRAL TAX AND CENTRAL EXCISE, RTI AND TRAINING CELL, 4TH FLOOR, CR BUILDING, IS PRESS ROAD, KOCHI-682018** O.P.(CAT) Nos.173, 176 & 190 of 2018 3 **KERALA, RESIDING AT FLAT NO.A5, GALAXY ARCADE, BEHIND MOSQUE, ABDUL RAHIMAN PEEDIYEKKAL LANE, SRM ROAD, KALOOR, COCHIN-682018** - **6 SRI.BALESHWAR KUMAR JHA, AGED 38 YEARS S/O.LATE UPENDRA JHA, INSPECTOR OF CENTRAL TAX AND CENTRAL EXCISE, O/O.THE DEPUTY COMMISSIONER, CENTRAL TAX AND CENTRAL EXCISE, SHREYAS BUILDING, GPO LANCE, PULIMOOD, STATUE, TRIVANDRUM-695001, RESIDING AT TC 14/1564, OVRA 120, 1ST FLOOR, PARIS ROAD, ICBAC JUNCTION, VAZHUTHACAUD, TRIVANDRUM** - **7 SRI.VIRESH MISHRA, AGED 32 YEARS S/O.SHRI. MANISH CHADRA MISHRA, INSPECTOR OF CENTRAL TAX AND CENTRAL EXCISE, O/O.THE COMMISSIONER, CENTRAL TAX AND CENTRAL EXCISE, PRO UNIT, HQRS, GST BHAWAN, PRESS CLUB ROAD, TRIVANDRUM, RESIDING AT C/O.PADMA KUMAR, PGRAA22, DRAINAGE ROAD, NEAR ENCHIKAL JUNCTION, TRIVANDRUM-695033.** - **8 SRI.BHUPAL KUMAR, AGED 30 YEARS S/O.LATE BHAGIRATH SINGH, INSPECTOR OF CENTRAL TAX AND CENTRAL EXCISE, O/O. THE DEPUTY COMMISSIONER, AIR CUSTOMS, TRIVANDRUM, INTERNATIONAL AIRPORT, TRIVANDRUM, KERALA, RESIDING AT MGRA 105, PETTAH, NEAR MOONAMANIKKAL TEMPLE, TRIVANDRUM-695024.** **BY ADVS. SRI.M.A.SHAFIK SRI.P.V.SALEEM** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 31.1.2019, ALONG WITH OP (CAT).176/2018, OP (CAT).190/2018, THE COURT ON 10.04.2019 PASSED THE FOLLOWING:** O.P.(CAT) Nos.173, 176 & 190 of 2018 4 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 10TH DAY OF APRIL 2019 / 20TH CHAITHRA, 1941** **OP (CAT).No. 176 of 2018** **ORDERIN OA 148/2018 of CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH DATED 08-08-2018** ## **PETITIONERS/RESPONDENTS:** - **1 UNION OF INDIA REPRESENTED BY THE SECRETARY, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI 110 001** - **2 THE CHAIRMAN CENTRAL BOARD OF EXCISE AND CUSTOMS, NORTH BLOCK, NEW DELHI-110001.** - **3 CHIEF COMMISSIONER OF CUSTOMS CENTRAL GOODS AND SERVICES TAX (COST) AND CENTRAL EXCISE (CX), CENTRAL REVENUE BUILDINGS, I.S.PRESS ROAD, COCHIN-682018.** - **4 PRINCIPAL CHIEF COMMISSIONER OF CUSTOMS CENTRAL GOODS AND SERVICES TAX (COST) AND CENTRAL EXCISE (CX), LUCKNOW ZONE, 7-A, ASHOK MARG, LUCKNOW, UP-226001.** - **5 CHIEF COMMISSIONER OF CUSTOMS CENTRAL GOODS AND SERVICES TAX (COST) AND CENTRAL EXCISE (CX), (MEERUT ZONE), MEERUT250001.** O.P.(CAT) Nos.173, 176 & 190 of 2018 5 - **6 COMMISSIONER OF CENTRAL GOODS AND SERVICES TAX (COST) AND CENTRAL EXCISE (CX), CENTRAL REVENUE BUILDINGS, I.S.PRESS ROAD, COCHIN-682018.** - **7 COMMISSIONER OF CENTRAL GOODS AND SERVICES TAX (CGST) AND CENTRAL EXCISE (CX), ICE BHAVAN, PRESS CLUB ROAD, THIRUVANANTHAPURAM-695001.** - **8 COMMISSIONER OF CENTRAL GOODS AND SERVICES TAX (CGST) AND CENTRAL EXCISE (CX), CENTRAL REVENUE BUILDINGS, MANANCHIRA, KOZHIKODE-673001.** - **9 COMMISSIONER OF CUSTOMS (PREVENTIVE) CUSTOMS PREVENTIVE COMMISSIONERATE, 4TH FLOOR, CATHOLIC CENTRE, BROADWAY, ERNAKULAM-682031.** **BY ADVS. ASSISTANT SOLICITOR GENERAL SRI.T.V.VINU, CGC** ## **RESPONDENTS/APPLICANTS:** - **1 PRAMOD KUMAR SAVITA, AGED 38 YEARS S/O LATE RAM ASRE SAVITA, INSPECTOR OF COST AND CX, AIR CUSTOMS, AIRPORT, TRIVANDRUM, RESIDING AT: IIND FLOOR, KERALA-8, T.C. 36/1104(7) BUILDING, AMBADY, VALLAKADAVU, TRIVANDRUM 695 008** - **2 KAPIL DEV SURIRA, AGED 35 YEARS S/O. RAJNIKANT SURIRA, INSPECTOR OF COST AND CX, MALAPPURAM DIVISION, RESIDING AT.C2 RUNWAY DALE APARTMENTS, EMEA COLLEGE ROAD, NEAR CALICUT INTERNATIONAL AIRPORT, MALAPPURAM, KERALA-673647.** - **3 MANOJ KUMAR YADAV, AGED 36 YEARS S/O. RAJNARAYAN YADAV, INSPECTOR OF COST AND CX, ADJUDICATION CELL, CALICUT HQRS, RESIDING AT GOVT. QUARTERS, NEAR KOZHIKODE BEACH, PIN673032.** O.P.(CAT) Nos.173, 176 & 190 of 2018 6 - **4 ASHOK KUMAR, AGED 38 YEARS S/O. BHAGWATI PRASAD, INSPECTOR OF COST AND CX, OFFICE OF THE PRINCIPAL COMMISSIONER OF CENTRAL TAX AND CENTRAL EXCISE, TECHNICAL SECTION HQRS., C.R.BUILDING, I.S.PRESS ROAD, COCHIN682018, RESIDING AT QUARTER NO.62 TYOE II, CENTRAL EXCISE STAFF QUARTERS, KAKKANAD, COCHIN-682037, KERALA.** - **5 SHYAM KUMAR SHARMA, AGED 34 YEARS S/O. LATE SATYENDRA NATH SHARMA, INSPECTOR OF COST AND CX, OFFICE OF THE ASSISTANT COMMISSIONER OF CALICUT INTERNATIONAL AIRPORT, KARIPPUR, MALAPPURAM-673647, RESIDING AT.GROUND FLOOR, POMONA APARTMENT, NEAR HAJJ HOUSE, AIR PORT ROAD, KARIPUR, MALAPPURAM-673647.** - **6 SUNIL NAGAR, AGED 37 YEARS S/O. SHRI JAGAN SINGH, INSPECTOR OF CGST & CX AIR CUSTOMS, INTERNATIONAL AIRPORT, TRIVANDRUM, RESIDING AT.A-3 APPOSSE SERENE, TUTORS LANE, NEAR BJP OFFICE, STATUTE TRIVANDRUM-695001.** - **7 ANANT VIKRAM SINGH, AGED 32 YEARS S/O. NAND KUMAR SINGH, INSPECTOR OF CGST AND CX, EDP, KOCHI COMMISSIONERATE, RESIDING AT: FIRST FLOOR, H.NO.136, TKCRRA KANAT LANE, VADUTHALA, KOCHI-682023.** - **8 PRAFULL BHANDARI, AGED 27 YEARS S/O.S.S.BHANDARI, INSPECTOR OF COST AND CX, AIR CUSTOMS, AIRPORT TRIVANDRUM, RESIDING AT: TC 79/1909-9, KADHAMPALLY, KARIKKAKOM GOVT.HIGH SCHOOL ROAD, TRIVANDRUM-695008.** - **9 AJEET KUMAR, AGED 35 YEARS, S/O.NARESH KUMAR, INSPECTOR OF COST AND CX, OFFICE OF THE ASSISTANT COMMISSIONER OF AIR CARGO COMPLEX, SHANGHUMUGHAM, TRIVANDRUM-695008, RESIDING AT: QTR.NO.6 CENTRAL EXCISE AND CUSTOMS QUARTERS, VALIYATHURA JUNCTION, TRIVANDRUM-695008.** O.P.(CAT) Nos.173, 176 & 190 of 2018 7 - **10 BAL MUKUND, AGED 32 YEARS S/O. CHUNNI LAL, INSPECTOR OF COST AND CX, KAKKANAD RANGE-3, RESIDING AT HOUSE NO.36, 2ND LANE, UDAYA NAGAR, KALOOR, ERNAKULAM, KOCHI682017.** - **11 RAJNEESH, AGED 35 YEARS S/O. SANTHOSH KUMAR DIXIT, INSPECTOR OF COST AND CX, AIR CUSTOMS, TRIVANDRUM AIRPORT, RESIDING AT:SGRA 50A, ELANTRIS, SHANTHI GARDENS II, STREET-II KAMALESHWARAM P.O., MANACAUD, TRIVANDRUM, PIN CODE-695009.** - **12 SHASHI KAND SINGH, AGED 36 YEARS S/O. RAMA KANT SINGH, INSPECTOR OF COST AND CX, AUDIT SECTION, KOCHI COMMISSIONERATE, RESIDING AT:QUARTER NO.105, TYPE III, CENTRAL EXCISE STAFF QUARTERS, KAKKANAD, COCHIN, KERALA682037.** - **13 AKSHAY SINGH BHADAURIA, AGED 28 YEARS S/O.KRISHNA PAL SINGH BHADAURIA, INSPECTOR OF COST AND CX, AIR CUSTOMS, INTERNATIONAL AIRPORT, TRIVANDRUM, RESIDING AT A-3, APPOSSEE SERENE, TUTORS LANE, NEAR BJP OFFICE, STATUTE TRIVANDRUM, PIN CODE-695001.** **BY ADVS. SRI.O.V.RADHAKRISHNAN (SR.) SMT.K.RADHAMANI AMMA SRI.ANTONY MUKKATH SRI.H.VISHNUDAS** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 31.1.2019, ALONG WITH OP (CAT).173/2018, OP (CAT).190/2018, THE COURT ON 10.04.2019 PASSED THE FOLLOWING:** O.P.(CAT) Nos.173, 176 & 190 of 2018 8 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 10TH DAY OF APRIL 2019 / 20TH CHAITHRA, 1941** **OP (CAT).No. 190 of 2018** **ORDER IN OA 164/2018 of CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH DATED 08-08-2018** ## **PETITIONERS/RESPONDENTS IN O.A:** - **1 UNION OF INDIA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI -110 001.** - **2 THE CHAIRMAN, CENTRAL BOARD OF EXCISE AND CUSTOMS, NORTH BLOCK, NEW DELHI-110 001.** - **3 CHIEF COMMISSIONER OF CUSTOMS, CENTRAL GOODS AND SERVICES TAX(CGST) AND CENTRAL EXCISE(CX), CENTRAL REVENUE BUILDINGS, I.S.PRESS ROAD, COCHIN-682 018.** - **4 PRINCIPAL CHIEF COMMISSIONER OF CUSTOMS, CENTRAL GOODS AND SERVICES TAX(CGST) AND CENTRAL EXCISE(CX), LUCKNOW ZONE, 7-A, ASHOK MARG, LUCKNOW, UP-226 001.** - **5 CHIEF COMMISSIONER OF CUSTOMS, CENTRAL GOODS AND SERVICES TAX(CGST) AND CENTRAL EXCISE(CX), (MEERUT ZONE), MEERUT-250 001.** - **6 COMMISSIONER OF CENTRAL GOODS AND SERVICES TAX ( CGST) AND CENTRAL EXCISE(CX), CENTRAL REVENUE BUILDINGS, I.S.PRESS ROAD, COCHIN-682 018.** O.P.(CAT) Nos.173, 176 & 190 of 2018 9 - **7 COMMISSIONER OF CENTRAL GOODS AND SERVICES TAX(CGST) AND CENTRAL EXCISE(CX), ICE BHAVAN, PRESS CLUB ROAD, THIRUVANANTHAPURAM-695 001.** - **8 COMMISSIONER OF CENTRAL GOODS AND SERVICES TAX (CGST) AND CENTRAL EXCISE(CX), CENTRAL REVENUE BUILDINGS, MANANCHIRA, KOZHIKODE-673 001.** - **9 COMMISSIONER OF CUSTOMS(PREVENTIVE), CUSTOMS PREVENTIVE COMMISSIONERATE, 4TH FLOOR, CATHOLIC CENTRE, BROADWAY, ERNAKULAM-682 031.** **BY ADVS. ASSISTANT SOLICITOR GENERAL SRI.T.V.VINU, CGC** ## **RESPONDENTS/APPLICANTS IN O.A:** - **1 SATYAMENDRA SINGH, AGED 33 YEARS, S/O.INDAL SINGH, INSPECTOR OF CGST AND CX, OFFICE OF THE ASSISTANT COMMISSIONER OF CUSTOMS, INTERNATIONAL AIRPORT, KARIPUR, RESIDING AT CUSTOMS QTRS (NEW BLOCK), OPPOSITE LIGHT HOUSE BEACH ROAD, CALICUT, KERALA, PIN -673032.** - **2 ABHINAV SINGH BISHT, AGED 33 YEARS, S/O.GOVIND SINGH BISHT, INSPECTOR OF CGST AND CX, OFFICE OF THE ASSISTANT COMMISSIONER OF CUSTOMS, INTERNATIONAL AIRPORT, KARIPUR, RESIDING AT CUSTOMS QTRS(NEW BLOCK), OPPOSITE LIGHT HOUSE, BEACH ROAD, CALICUT, KERALA, PIN-673 032.** **BY ADVS.** **SRI.ANTONY MUKKATH SMT.K.RADHAMANI AMMA SRI.H.VISHNUDAS SRI.O.V.RADHAKRISHNAN (SR.)** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 31.1.2019, ALONG WITH OP (CAT).173/2018, OP (CAT).176/2018, THE COURT ON 10.04.2019 PASSED THE FOLLOWING:** O.P.(CAT) Nos.173, 176 & 190 of 2018 10 ## **JUDGMENT** ## **V.G.ARUN, J.** The petitioners in these original petitions are the Union of India and its officials who were the respondents before the Central Administrative Tribunal. The challenge in these original petitions is against the common order in O.A.Nos.956/2017, 148/2018 and 164/2018. O.P.(CAT) 173/2018 is filed against the order in O.A.No.956/2017, O.P. (CAT) No.176/2018 against the order in O.A.No.148/2018 and O.P.(CAT) No.190/2018 against the order in O.A.No.164/2018. 2. In O.A No.956/2017, the respondents, who were Inspectors of Central Tax and Central Excise at the Cochin Commissionerate, had submitted applications for InterCommissionerate Transfer (ICT) and were awaiting the O.P.(CAT) Nos.173, 176 & 190 of 2018 11 outcome of their applications. In the meanwhile, the 4[th] petitioner sought to fill up the vacancies to which the respondents had sought transfer, by effecting direct recruitment. Therefore, the original application was filed seeking to quash the notifications issued for the purpose of filling up the available vacancies by way of direct recruitment and to direct the Chief Commissioner, Patna to consider their request for ICT. 3. In O.P.(CAT) Nos.176 and 190 of 2018, the request for ICT of the respondents and some other Inspectors had been sanctioned as per Annexure A1 order dated 19.1.2018. Immediately thereafter, Annexure A2 order was issued, cancelling Annexure A1 order. Thereupon, the original applications were filed seeking to quash Annexure A2 and to declare that the respondents are entitled to get Annexure A1 O.P.(CAT) Nos.173, 176 & 190 of 2018 12 implemented, since they were found entitled for transfer by the committee constituted for ICT. By the impugned order, the Tribunal issued a direction to immediately accommodate the 8 applicants whose names had been forwarded, in accordance with the guidelines for ICT issued by the Customs and Central Excise Board. In O.A.Nos.148 and 164 of 2018, the Tribunal set aside Annexure A2 order, to the extent it cancelled the transfer of the respondents herein as per Annexure A1 and declared that the respondents herein are entitled to get Annexure A1 implemented since they were found eligible by the Committee constituted for considering the proposals for ICT, in terms of the relevant orders. It was further directed that those respondents, who are yet to be relieved from their current job for transfer to the Lucknow/Meerut Zones, will be relieved within 15 days and O.P.(CAT) Nos.173, 176 & 190 of 2018 13 duly accommodated in the post in the transferee Zone, as already ordered. 4. Arguments were advanced by Additional Solicitor General Sri. Natarajan, Senior Counsel O.V. Radhakrishnan, Shafik M. Adbulkhadir and Ravi. K. Pariyarath. For convenience, the Exhibits in O.P.(CAT) No.176/2018 are being referred to herein. 5. The learned Additional Solicitor General, who appeared on behalf of the petitioners in the original petitions/respondents in the original applications, assailed the findings in the impugned orders primarily on the ground that there was no provision in the Recruitment Rules which provided for ICT of Inspectors from one Zone to another. It was pointed out that the Central Excise and Land Customs Department Inspector (Group 'C' Post) Recruitment Rules, O.P.(CAT) Nos.173, 176 & 190 of 2018 14 2002 (Annexure R3) dated 29.11.2002, was the earlier Rule which regulated the method of recruitment to Group 'C' post of Inspector in the Central Excise and Land Customs Department till the introduction of the Central Excise and Customs Commissionerates Inspector (Central Excise, Preventive Officer and Examiner), Group 'B' Posts Recruitment Rules, 2016. The relevant portion of the Central Excise and Land Customs Department Inspector (Group 'C' Post) Recruitment Rules, 2002 reads as follows: “4. Special Provision - (i) Each Commissionerate shall have its own separate cadre unless otherwise directed by the Central Board of Excise and Customs. (ii) Notwithstanding anything contained in Sub rule (I), the jurisdictional Chief Commissioner of the Central Excise may, if he considers it to be necessary or expedient in the public interest so to do and subject to such conditions as he may determine, having regard to the circumstances of the case and for reasons to be recorded in writing, order any post in the Commissionerate of Central Excise to be filled by O.P.(CAT) Nos.173, 176 & 190 of 2018 15 absorption of persons holding the same or comparable posts, but belonging to the cadre of another Commissionerate of Directorate under the Central Board of Excise and Customs.” 6. It was submitted that the Recruitment Rules, 2002 was superseded and substituted by Annexure R4, the Central Excise and Customs Commissionerates Inspector (Central Excise, Preventive Officer and Examiner), Group 'B' Posts Recruitment Rules, 2016. It is contended that the Recruitment Rules of 2016 does not contain a provision akin to Rule 4 of the 2002 Rules. On the other hand, Rule 5, which is the Special Provision under the Recruitment Rules of 2016, reads as follows: “5. Special Provision - Each Cadre Controlling Authority (CCA) shall have its own separate cadre, unless otherwise directed by the Central Board of Excise and Customs.” 7. Relying on the above provision, it was contended that the practice of ICT ceased to exist after introduction of the O.P.(CAT) Nos.173, 176 & 190 of 2018 16 2016 Rules. It is submitted that the practice of ICT has been completely taken away with the intention of maintaining each Commissionerate as a separate unit with a separate cadre. This, it is submitted, is with the intention of correctly maintaining the seniority, reservation etc. within the cadre and that any interference with the cadre would result in upsetting the apple cart. The learned ASG contended that inasmuch as Annexure A1 order granting ICT to the respondents was issued without authority, Annexure A2 order cancelling Annexure A1 was fully justified and the impugned order by which the Tribunal set aside Annexure A2 would result in resurrecting an illegal order. It is further contended that Annexure R4, the Recruitment Rules of 2016, is issued in exercise of the power conferred by the proviso to Article 309 of the Constitution of India and therefore, Annexure R4 cannot O.P.(CAT) Nos.173, 176 & 190 of 2018 17 be varied or diluted by executive orders. It is submitted that, at best, an executive order can only supplement a statutory rule and cannot supplant the rule. Reliance was placed on the decisions in **Ajaya Kumar Das v. State of Orissa and others [(2011) 11 SCC 136]** and **State of Orissa and others v. Prasanna Kumar Sahoo [(2007) 15 SCC 129]** , to drive home the above contention. 8. In _Ajaya Kumar_ 's case, the question that arose for consideration was, whether the Government of Orissa could, by its circulars modify Rule 74(b) of the Orissa Service Code, which was a statutory rule formulated under Article 309 of the Constitution of India. Answering the issue, the Honourable Supreme Court held as follows: “10. Neither the Circular dated June 18, 1982 nor the subsequent Circular dated March 19, 1983 modifying the earlier Circular dated June 18, 1982 can override the O.P.(CAT) Nos.173, 176 & 190 of 2018 18 statutory provision contained in R.74(b) of the Code if it results in reduction of pay of the employee on promotion. That Orissa Service Code has been framed under Art 309 of the Constitution of India is not in dispute. It is well settled that Statutory Rules framed under Art.309 of the Constitution can be amended only by a Rule or Notification duly made under Art. 309 and not otherwise. Whatever be the efficacy of the Executive Orders or Circulars or Instructions, Statutory Rules cannot be altered or amended by such Executive Orders or Circulars or Instructions nor can they replace the Statutory Rules. The Rules made under Art.309 of the Constitution cannot be tinkered by the administrative Instructions of Circulars.” 9. In _Prasanna Kumar Sahoo_ 's case, the issue was whether, the State Government could take a policy decision in exercise of its power under Article 162 of the Constitution, contrary to the statutory rules framed under Article 309 of the Constitution. The Apex Court answered the issue by holding that even a policy decision taken by the State in exercise of its jurisdiction under Article 162 of the Constitution of India O.P.(CAT) Nos.173, 176 & 190 of 2018 19 would be subservient to the Recruitment Rules framed by the State either in terms of a legislative act or the proviso appended to Article 309 of the Constitution of India. It was held that a purported policy decision issued by way of an executive instruction cannot override the statute or statutory rules, far less the constitutional provisions. 10. The learned Additional Solicitor General submitted that some Commissionerate’s had issued orders effecting ICT, disregarding the 2016 Recruitment Rules and this had caused the Government of India to issue Circular No.F.No.A22015/117/2016-Ad.IIIA dated 20.9.2018 [Exhibit R1(o)], informing all Commissionerates that the practice of ICT has been stopped in the light of the new Recruitment Rules of 2016. After taking into consideration Rule 4 of the Recruitment Rules, 2002 and Rule 5 of the Recruitment Rules, O.P.(CAT) Nos.173, 176 & 190 of 2018 20 2016, the Government observed in Ext.R1(o) that the Recruitment Rules of 2016 does not have a provision for recruitment by absorption and accordingly no ICT application can be considered after coming into force of the Recruitment Rules, 2016. The only exemption provided under the Circular is consideration of individual cases on extreme compassionate grounds. Even in such cases, the transfer would be allowed only on loan basis, with a maximum tenure of three years which can be extended with the specific approval of the Central Board of Indirect Taxes and Customs for a further period of two years depending upon the administrative requirement. Further, such transfers would be on condition that the officials transferred on loan basis shall not be considered for promotion unless they re-join their parent cadre. In the circular, it is clarified as under: O.P.(CAT) Nos.173, 176 & 190 of 2018 21 “Now, therefore, it is hereby clarified that an office order for Inter Commissionerate Transfer in the Grade of Inspectors issued on or after 26.12.2016 (i.e. from the date of enactment of RR, 2016) will be non-est and accordingly any officer who has joined another Zone in pursuance of such order shall be treated as a **deemed case on loan basis w.e.f. 26.12.2016** . These officers shall be on deemed loan till 31.03.2019, on which date the officers shall stand relieved and be reverted to their parent Zones. All CCA are directed to take necessary steps in this regard immediately.” 11. It was contended that in the absence of power, the respective Chief Commissioners could not have issued orders granting ICT to the party respondents. In support of this proposition, the learned ASG relies on the decisions in **Prem Parveen v. Union of India and others [1973 SCC OnLine Delhi 194]** and **Bhagawati Prasad Gordhandas Bhatt v. The** . **State of Gujarat and others [1976 SCC OnLine Gujarat 51]** In Prem Parveen's case, the petitioner had challenged an order O.P.(CAT) Nos.173, 176 & 190 of 2018 22 by which he was transferred from the Directorate of Extension, Ministry of Agriculture, New Delhi to the office of the Regional Station on Forage Production, Surat. The question considered by the High Court was as to whether the Government had the right to transfer a confirmed permanent Government servant against the latter's will outside his cadre. Answering the question, it was held as follows: “It is true that once the Government is shown to have the authority to transfer a Government servant the courts would be most reluctant and disinclined to interfere, with the exercise administrative discretion by the Government on the obviously possible plea that the administration is the best judge and in the know of all relevant circumstances to determine as to the desirability or the propriety of any particular posting of a Government servant. It was held, even in the face of such constraints, it is the bounden duty of the courts to interfere in a case where it is shown that there is no legal authority in the Government to transfer a Government servant. That, the executive can only act in pursuance of the powers given to it by law and it can claim immunity from O.P.(CAT) Nos.173, 176 & 190 of 2018 23 challenge only on the condition that it can support the legality of its action before a court of justice. Based on the said reasoning, it is held by the High Court that in the absence of authority to transfer the petitioner therein outside his cadre, the impugned order of transfer is bad, since the same is unauthorised and without any support of law.” 12. In _Bhagwati Prasad_ 's case, the challenge was against an order of deputation by which the petitioner therein was proposed to be sent on deputation to a post outside his cadre. After an elaborate consideration of precedents, it was held by the High Court that on principle and authority, it was clear that a person belonging to a cadre cannot be deputed or transferred outside the parent department and outside the cadre. The contention is that the power vested with the Chief Commissioners to effect ICT in exceptional cases having been taken away by the introduction of the Recruitment Rules of 2016, the inter-commissionerate transfer granted under O.P.(CAT) Nos.173, 176 & 190 of 2018 24 Annexure A1 is _ex-facie_ illegal. 13. The next contention urged by the learned Additional Solicitor General was that issuance of transfer guidelines by the Government, by itself, would not confer upon the employees any legally enforceable right. It was contended that an order of transfer cannot be interfered with by the court unless the order is issued with _mala fide_ intention or is made in violation of statutory provisions. That the jurisdiction of the Central Administrative Tribunal being akin to that of the High Court under Article 226, the constraints and norms which the High Court observes while exercising its jurisdiction under Article 226 would apply with equal force to the Central Administrative Tribunal also. This position, it was pointed out, was clearly laid down by the Honourable Supreme Court in **Union of India and others v. S.L.Abbas** O.P.(CAT) Nos.173, 176 & 190 of 2018 25 ## **[(1993) 4 SCC 357]** , wherein it was held as follows: “7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly, if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right. 8. The jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Art. 226 of the Constitution of India in service matters. This is evident from a perusal of Art. 323A of the Constitution. The constraints and norms which the High Court observes while exercising the said jurisdiction apply equally to the Tribunal created under Art. 323A. (We find it all the more surprising that the learned single Member who passed the impugned order is a former Judge of the High Court and is thus aware of the norms and constraints of the writ O.P.(CAT) Nos.173, 176 & 190 of 2018 26 jurisdiction). The Administrative Tribunal is not an Appellate Authority sitting in judgment over the orders of transfer. It cannot substitute its own judgment for that of the authority competent to transfer. In this case the Tribunal has clearly exceeded its jurisdiction in interfering with the order of transfer. The order of the Tribunal reads as if it were sitting in appeal over the order of transfer made by the Senior Administrative Officer (competent authority).” 14. In conclusion, the learned Additional Solicitor General contended that the Tribunal had exceeded its jurisdiction in directing to effect transfer of the respondents, who were only eight among the 122 officers proposed to be transferred under Annexure A1. It was submitted that by issuing such a direction, the Tribunal had virtually stepped into the shoes of the administration. It was pointed out that if the direction of the Tribunal is given effect, that would result in total chaos at the Commissionerate to which the respondents are to be transferred. It was hence contended O.P.(CAT) Nos.173, 176 & 190 of 2018 27 that the order of the Tribunal was per se illegal and hence unsustainable. 15. The counter arguments for the respondents was led by Senior Counsel Sri. O. V. Radhakrishnan, ably supported by Advocates Shafik M. Adbulkhadir and Ravi. K. Pariyarath. It was contended that the impugned order was well founded and fully justified and therefore did not warrant interference. Our attention was drawn to Annexure A1 transfer order, wherein it is stated that the transfer to CGST and CX, Lucknow Zone/Meerut Zone on ICT basis was being ordered on the recommendation of the committee constituted for considering the ICT and in terms of Board's letter F No.A.22015/23/2011Ad.IIIA dated 27.10.2011 (Annexure A3). It was hence contended that even after Annexure R4 Rules of 2016 had come into effect, the Board was ordering ICT based on O.P.(CAT) Nos.173, 176 & 190 of 2018 28 recommendation of the committee constituted for that purpose. The learned Senior Counsel relied on Annexure A14 minutes of the meeting of the committee constituted for considering the representations for ICT. The agenda in the meeting held on 2.1.2018 was to consider and select the officers in the grade of Inspector entitled for transfer on inter Commissionerate grounds, for the vacancies available as on 31.12.2017. It was submitted that the fact that vacancies as on 31.12.2017 was considered for ICT and orders issued would indicate that in spite of Annexure R4 Rules having come into effect on 26.12.2016, the practice of ICT continued. It was contended that way back from 12.2.1958 onwards, ICT was being granted based on executive orders issued from time to time. To support this contention, reliance was placed on Annexures R1 (f) to R1(l). It was submitted that even prior to O.P.(CAT) Nos.173, 176 & 190 of 2018 29 switching over of the selection and appointment to the post of Inspector of Central Excise to all India level from 13.11.2003, the Central Board of Revenue had issued Annexure R1(f) dated 12.2.1958 with regard to the transfers of Non-Gazetted staff from one charge to another within the same Department. Later, Annexure R1(g) order was issued prescribing conditions for inter-collectorate transfers of Group-C Officers on compassionate grounds. By Annexure R1(h) dated 19.2.2004, decision was taken that henceforth no Intercommissionerate transfer shall be allowed for any Group B, C or D employee and instead, in exceptional circumstances, depending upon the merits of each case, such transfers shall be allowed on deputation basis for a period of three years, subject to the approval of the transferor and transferee Cadre Controlling Authorities. Even such transfer on deputation O.P.(CAT) Nos.173, 176 & 190 of 2018 30 basis, would be allowed only on extreme compassionate grounds. Immediately thereafter, Ext.R1(i) clarification was issued stating that Inter-commissionerate transfers amongst the Commissionerates having common cadre, may be allowed to continue as hitherto, without loss of seniority. The ban on ICT brought about by Ext.R1(h) was further relaxed under Ext.R1(j) by permitting ICT of Group B, C and D Officers beyond the Commissionerates having common cadre, without any loss of seniority, subject to the twin condition that (i) the transfer shall be permissible only in cases where the spouse is employed with either the Central Government or a State Government or a Public Sector Undertaking of the Central Government/State Government and (ii) that the option for change of cadre must be exercised within six months of the initial appointment of the officer, if the officer is married at the O.P.(CAT) Nos.173, 176 & 190 of 2018 31 time of appointment and in cases where marriage takes place subsequent to the appointment, the option should be exercised within six months of the marriage. Ext.R1(k) is yet another decision pertaining to ICT whereunder permission for ICT of Group B, C and D Officers, without loss of seniority was made possible, in the case of officers appointed against the 5% compassionate vacancies quota. Thereafter, under Ext.R1(l), the benefit of ICT was extended to physically handicapped employees also. Reliance was also placed on Annexure A3 dated 27.10.2011, which, according to the learned Counsel, was issued by the Central Board of Excise and Customs, taking into consideration the relaxation brought about to ICT through various orders. Under Annexure A3, decision was taken by the Board to lift the ban on ICT with immediate effect on the following conditions O.P.(CAT) Nos.173, 176 & 190 of 2018 32 “(i) The concerned two Cadre Controlling Authorities should agree to the transfer. (ii) The transferee will be placed below all officers appointed regularly to that post/grade on the date of his/her appointment on transfer basis in terms of Para 3.5 of DOP&T's O.M. Dated 03.07.1986. In other words, such a transferee will be junior to those regularly appointed officers prior to his/her transfer. However, such transferred officer will retain his/her eligibility of the parent Commissionerate for his/her promotion to the next higher grade, etc. (iii) On transfer he/she will not be considered for promotion in the old Commissionerate. (iv) He/she will not be entitled to any joining time and transfer travelling allowance; (v) Under no circumstances, request for ICT earlier by the various Cadre Controlling Authorities on the basis of Board's letters F.No.A.22015/19/2006-Ad.III.A dated 27.03.2009, F.No.A 22015/11/2008-Ad.III.A dated 29.07.2009 and F.No.A.22015/15/2010-Ad.III.A dated 09.02.2011 shall be fixed as per the present instructions. (viii) Officers who are presently working on deputation basis from their parent Commissionerate to any other Commissionerate/Directorate and are willing to avail of the ICT in future will have to revert back to their parent O.P.(CAT) Nos.173, 176 & 190 of 2018 33 Commissionerate first and apply afresh for during the interim period from 10.02.2004 (i.e. the date from which the ban became effective) till date, their seniority will be fixed from the date of their joining on deputation in the transferred Zone/Commissionerate.” 16. It was contended that the power to order ICT emanate from Annexure A3, independent of Annexure R4. That, Annexure R4 being the Recruitment Rules, it does not take in transfers, since transfer is not a condition of service and is rather an incidence of service. The following judgments were cited in support of this contention: **Lily Kurien v. Sr. Lewina and others [AIR 1979 SC 52], General Officer Commanding and another v. Dr.Subhash Chandra Yadav [(1988) 2 SCC 351], Gujarat Electricity Board and another v. Atmaram Sungomal Pushani [(1989) 2 SCC 602], I.N Subba Reddy v. Andhra University and others [AIR 1976 SC 2049], B.Varadha Rao v. State of** O.P.(CAT) Nos.173, 176 & 190 of 2018 34 **Karnataka and others [AIR 1986 SC 1955], Thrissur District Co-operative Bank v. Delson [2002 (1) KLT 852], Sashikumar v. State of Kerala [1998 (2) KLT 330] and A.B.Krishna and others v. State of Karnataka and others [ (1998) 3 SCC 495].** 17. It was submitted that even going by the information provided by the Government, the provision for ICT, which was available in the Recruitment Rules of 2002 was deleted from the Recruitment Rules of 2016, since such provision is generally not made in the Recruitment Rules. For this purpose, reliance was placed on Annexure R1 (p) & R1(q), which are information provided under the Right to Information Act and contains the proposal for amendment to the Recruitment Rules and its notes, which ultimately culminated in the issuance of the Recruitment Rules of 2016. O.P.(CAT) Nos.173, 176 & 190 of 2018 35 It was therefore contended that non-inclusion of the provision for ICT in the Recruitment Rules of 2016 does not in any manner effect the right of the respondents for ICT, since their right is based on Annexure A3. 18. The learned Counsel further contended that on an earlier occasion, while dealing with the issue of ICT, the Central Administrative Tribunal had observed that though the Government servant had no vested right to ICT, the issue must be approached by observing the principles of equity and good conscience. It was further held by the CAT that as a part of good governance, the authorities should keep the promise/assurance given to the employees and in such circumstances, some of the features of the legal principles of promissory _estoppel_ would also come into play. That the said order of the Tribunal rendered in O.A.No.959 of 2014 was O.P.(CAT) Nos.173, 176 & 190 of 2018 36 challenged before this Court in O.P.(CAT) No.77 of 2015 and by Annexure A4 judgment, the original petition filed by the Union of India and others, was dismissed. It was submitted that since the problem faced by the employees, with respect to the ICT did not get resolved even after Annexure A4 judgment, some of the employees had yet again approached the CAT by filing O.A.No.333 of 2016 and the Tribunal had disposed the matter directing the Chief Commissioner and Commissioner of Central Excise Customs and Service Tax, Cochin to frame guidelines to deal with ICT requests. It was submitted that Annexure A6 is the guidelines framed in accordance with the direction contained in Annexure A5 order of the Tribunal. It was contended that having framed guidelines and having issued transfer orders in accordance with the guidelines as also the decision of the Committee constituted for considering O.P.(CAT) Nos.173, 176 & 190 of 2018 37 the proposal for ICT, the respondents are estopped from cancelling Annexure A1 order. 19. The point that arise for consideration from the pleadings and the arguments advanced is whether, the absence of provision for ICT in the Recruitment Rules of 2016 would curtail the right of the respondents for ICT and whether the executive orders leading up to Annexure A3 can exist independently and govern the field of ICT, _de hors_ Annexure R4 Rules of 2016. 20. As far as the contention with respect to _estoppel_ based on Annexures A4 to A6 is concerned, we immediately note that Annexures A4 judgment of this Court and Annexure A5 order of the Tribunal were passed at a time when Annexure R3 Recruitment Rules of 2002 was in force. Since Rule 4 (ii) of Annexure R3 provided for ICT, the Tribunal was O.P.(CAT) Nos.173, 176 & 190 of 2018 38 justified in issuing the directions. For the same reason, this Court was right in upholding the findings of the Tribunal, as per Annexure A4 judgment. Even though, Annexure A6 guidelines was issued after Annexure R4 Recruitment Rules of 2016 had come into force, the guidelines were issued in compliance of Annexure A5 order of the Tribunal, which was prior to the coming into force of the Recruitment Rules of 2016 and as such the guidelines do not have any persuasive effect, as was attempted to be canvassed by the respondents. Even otherwise, merely because guidelines pertaining to ICT had been issued, that would not have any binding effect on the respondents in view of Annexure R4 Rules. Hence, Annexure A2 order cannot be interfered with on the strength of Annexure A6 guidelines. Moreover, it has to be noted that Annexure A6 pertains to the Cochin Commissionerate alone. O.P.(CAT) Nos.173, 176 & 190 of 2018 39 21. The contention that transfer is not a condition of service and that the Recruitment Rules of 2016 does not govern the ICT of the respondents and on the other hand, the ICT is based on Annexure A3 order and Annexure A6 guidelines, has to be answered after considering the precedents cited by the learned Counsel. After careful study of the decisions rendered in **Lily Kurien v. Sr. Lewina and others [AIR 1979 SC 52]** , **General Officer Commanding and another v. Dr.Subhash Chandra Yadav [(1988) 2 SCC 351]** , **Gujarat Electricity Board and another v. Atmaram Sungomal Pushani [(1989) 2 SCC 602]** , **District Cooperative Bank v. Delson [2002 (1) KLT 852]** , and **Sashikumar v. State of Kerala [1998 (2) KLT 330]** , we are of the considered opinion that those decisions have no relevance with respect to the issue under consideration. In _Subba_ O.P.(CAT) Nos.173, 176 & 190 of 2018 40 _Reddy's_ case (supra), the appellant had joined the Andhra University as Senior Lecturer and in course of time, he was promoted as Professor. The conditions of service under which the appellant was appointed in the promoted post of Professor contained a clause that the appellant shall enter into a written contract with the University. Accordingly, the appellant entered into an agreement as required by the conditions of service and Section 24 of Chapter V of the Administration Manual of the University. Later, the Syndicate passed a resolution determining the agreement with the appellant and thereby terminating his service. The appellant thereupon filed a suit which was later withdrawn, and a writ petition filed before the High Court. The Division Bench of the High Court dismissed the writ petition holding that the impugned action had neither been taken as a measure of O.P.(CAT) Nos.173, 176 & 190 of 2018 41 punishment for any misconduct on the part of the appellant nor did it involve the breach of any mandatory statutory obligation or any principle of natural justice and that since the impugned resolution, by which the agreement was determined, was based upon Section 24 of Chapter V of the Administration Manual and Clause 10 of the agreement, the appellant could not have any legal grievance and that no writ lay to quash the order terminating the contract of service. Aggrieved, the appellant approached the Supreme Court and by the decision cited supra, the Apex Court dismissed the appeal finding that the terms and conditions of service specified in the contract of employment entered between the appellant and the University contained an express provision for termination of his services by six months’ notice on either side. Our attention was drawn to paragraph 13 of the O.P.(CAT) Nos.173, 176 & 190 of 2018 42 judgment, wherein, relying on the explanation in **State of Madhya Pradesh v. Shardul Singh [1970 (3) SCR 302]** , the Apex Court held that the expression 'conditions of service' means all those conditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and even beyond it. We are of the opinion that the decision does not in any manner support the contention of the respondents and on the other hand lays down the position that the expression 'conditions of service' takes in all those conditions which regulate the holding of post by a person, from the time of his appointment till his retirement and even beyond it. The respondents cannot therefore rely on Subba Reddy’s case to contend that transfer does not fall within the expression 'conditions of service'. In **Varadha Rao v. State of Karnataka and others [AIR 1986 SC 1955]** , the short point O.P.(CAT) Nos.173, 176 & 190 of 2018 43 that arose for consideration was whether an order of transfer of a Government servant made by an authority other than the Government itself, is appealable before the Government under Rule 19 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957. While dilating on this point, the Apex Court explained the decision in **E. P. Royappa v. State of Tamil Nadu [AIR 1974 SCC 555]** wherein, it was observed as follows: “It is an accepted principle that in public service transfer is an incident of service. It is also an implied condition of service and appointing authority has a wide discretion in the matter. The Government is the best judge to decide how to distribute and utilise the services of its employees. However this power must be exercised honestly, bona. fide and reasonably. It should be exercised in public, interest. If the exercise of power is based on extraneous considerations or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of power. Frequent transfers, without sufficient reasons to justify such transfers, cannot but be held as in fide. A transfer is mala fide when it is O.P.(CAT) Nos.173, 176 & 190 of 2018 44 made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purpose than is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administration, that even administrative actions should be just and fair. The observation that transfer is also an implied condition of service is just an observation in passing. It certainly cannot be relied upon in support of the contention that an order of transfer ipso facto varies to the disadvantage of a Government servant, any of his conditions of service making the impugned order appealable under R. 19(1)(a) of the Rules." The Apex Court explained the observation in Royappa's case that transfer is also an implied condition of service, by stating that it is just an observation in passing and cannot be relied upon in support of the contention that an order of transfer _ipso facto_ varies, to the disadvantage of a Government servant, any of his conditions of service. The explanation in Varadha Rao's case cannot therefore be relied on in support of the proposition that transfer is not a condition of service. In fact, O.P.(CAT) Nos.173, 176 & 190 of 2018 45 a Division Bench of this Court in **Sreenarayana Trust and others v. State of Kerala [ILR 2007 (2) Ker. 478]** , while considering the extent of power of the Kerala University to issue first statutes regarding transfer of teachers of colleges under corporate managements affiliated to the university, considered the question as to whether transfer is a condition of service. Argument had been advanced before the Division Bench, based on the decision in Varadha Rao's case (supra), that transfer is not a condition of service and is only an incident of service. The Division Bench held that in Varadha Rao's case, the Supreme Court had only held that transfer is an incident of service of an employee and therefore, transfer of an employee does not result in any change in the conditions of service, to the disadvantage of the employee. The Division Bench placed reliance on the decision of the Apex Court in O.P.(CAT) Nos.173, 176 & 190 of 2018 46 ## **State of U.P and others v. Gobardhan Lal [AIR 2004 SC 2165]** wherein the Apex Court had observed as follows: “It is too late in the day for any Government servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such O.P.(CAT) Nos.173, 176 & 190 of 2018 47 as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision.” (Emphasis Supplied) Based on the aforementioned observation, the Division Bench went on to hold that transfer is an incident of service and it is a condition of service. In the light of the decision of the Apex Court in Gobardhan Lal's case, followed by the Division Bench of this Court in Sreenarayana Trust, we have no hesitation to hold that transfer is a condition of service and is also an incidence of service and that transfer of an employee does not in any manner alter his conditions of service. 22. In **A.B.Krishna and others v. State of Karnataka and others [(1998) 3 SCC 495]** , the Karnataka Government had made the Mysore Fire Force (Cadre Recruitment) Rules, O.P.(CAT) Nos.173, 176 & 190 of 2018 48 1971, which contained a provision for promotion to the post of leading firemen from the post of Firemen/Firemen Drivers. An examination was conducted in accordance with the Rules and a select list prepared for promotion to the post of leading firemen. Pending the select list, the Government of Karnataka took a policy decision that promotions to various posts, including that of leading firemen, shall be made on the basis of seniority-cum-merit and not by selection. The Karnataka Civil Services (General Recruitment) Rules, 1977 was amended accordingly and the appellants promoted to the post of leading firemen based on seniority. Their promotions were challenged on the ground that the Karnataka Civil Services (General Recruitment) Rules, 1977 was not applicable and that promotion to the post of leading firemen shall continue to be governed by the Mysore Fire Force (Cadre Recruitment) O.P.(CAT) Nos.173, 176 & 190 of 2018 49 Rules, 1971 made by the State Government under Section 39 of the Fire Force Act, 1954. Answering the issue involved, the Apex Court held as follows: “It is no doubt true that the Rule-making authority under Article 309 of the Constitution and Section 39 of the Act is the same, namely, the Government (to be precise, Governor, under Article 309 and Govt. under Section 39), but the two jurisdictions are different. As has been seen above, power under Article 309 cannot be exercised by the Governor, if the legislature has already made a law and the field is occupied. In that situation, Rules can be made under the Law so made by the legislature and not under Article 309. It has also to be noticed that Rules made in exercise of the rule-making power given under an Act constitute Delegated or Subordinate legislation, but the Rules under Article 309 cannot be treated to fall in that category and, therefore, on the principle of "occupied field", the Rules under Article 309 cannot supersede the Rules made by the legislature.” 23. The contention urged, based on the principle laid down in the afore-mentioned decision is that, insofar as the Recruitment Rules of 2016 do not contain any provision O.P.(CAT) Nos.173, 176 & 190 of 2018 50 regarding transfer, it is not an occupied field and therefore, Annexure A3, which is an Executive Order governing the issue of ICT is a valid order. The said contention regarding the absence of provision prohibiting ICT in the Recruitment Rules of 2016 and the validity of Annexure A3 order cannot be countenanced for the following reasons; it is not in dispute that Annexure R3 Recruitment Rules of 2002 contained a provision enabling ICT. It is an admitted fact that no such provision is included in the Recruitment Rules of 2016 and on the other hand, Rule 5 of Annexure R4 specifically stipulate that each Cadre Controlling Authority (CCA) shall have its own separate cadre, unless otherwise directed by the Central Board of Excise and Customs. Any inter-commissionerate transfer would violate the unique identity of each cadre envisaged under Rule 5 of Annexure R4, the Recruitment O.P.(CAT) Nos.173, 176 & 190 of 2018 51 Rules of 2016. In that view of the matter, ICT orders issued on the of Annexure A3 would be a strength definitely transgression into the field occupied by Annexure R4 Rules issued in exercise of the power under the proviso to Article 309 of the Constitution of India. 24. For the reasons mentioned above, we find considerable force in the contention urged by the learned Additional Solicitor General that Annexure A1 having been issued without authority and in violation of the Recruitment Rules of 2016, was invalid and hence the cancellation of Annexure A1 by issuing Annexure A2 was perfectly in order. The decisions in **Prem Parveen v. Union of India and others** **[1973 SCC OnLine Delhi 194]** and **Bhagawati Prasad Gordhandas Bhatt v. The State of Gujarat and others [1976 SCC OnLine Gujarat 51]** , lend credence to the contention. O.P.(CAT) Nos.173, 176 & 190 of 2018 52 Moreover, the question as to whether Annexure A3 or Annexure R4 would govern the ICT of the respondents is no longer doubtful in view of Ext.R1 (o) Circular dated 20.9.2018 wherein, the Government of India has made it absolutely clear that the Recruitment Rules, 2016 do not have any provision for recruitment by absorption and accordingly, no ICT application can be considered after coming into force of the Recruitment Rules, 2016. In the light of Ext.R1(o), no reliance can be placed on Exts.R1(p) and R1(q) which are only office notes and related correspondences. 25. Having held that transfer is a condition of service, we also hold that it is well within the power of the employer to take a policy decision either to grant or not to grant ICT to its employees. There cannot be a judicial review and interference on such policy decisions. In the absence of a provision for ICT O.P.(CAT) Nos.173, 176 & 190 of 2018 53 in Annexure R4 Recruitment Rules of 2016, the Tribunal could not have found fault with the authorities in having issued Annexure A2 order cancelling Annexure A1 by which ICT was granted to the respondents and others. In such circumstances, we find it impossible to sustain the findings in the impugned orders of the Tribunal. Consequently, the original petitions are allowed, setting aside the impugned orders of the Central Administrative Tribunal in O.A.Nos.956/2017, 148/2018 and 164/2018. **Sd/-** **C.T.RAVIKUMAR JUDGE** **Sd/V.G.ARUN JUDGE** Scl/ O.P.(CAT) Nos.173, 176 & 190 of 2018 54 ## **APPENDIX OF OP (CAT) 173/2018** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORIGINAL APPLICATION IN O.A.NO.180/00956/2017, DATED 12/11/2017 FILED BY THE RESPONDENTS BEFORE THE CAT, ERNAKULAM BENCH EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT IN O.A.NO.180/00956/2017, DATED 21/3/2018 FILED BY THE PETITIONERS EXHIBIT P3 TRUE COPY OF THE REJOINDER IN O.A.NO.180/00956/2017, DATED 2/6/2018 FILED BY THE RESPONDENTS EXHIBIT P4 TRUE COPY OF THE COMMON ORDER IN O.A.NO.180/00956/2017, DATED 8/8/2018, OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** O.P.(CAT) Nos.173, 176 & 190 of 2018 55 ## **APPENDIX OF OP (CAT) 176/2018** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE OA NO.180/00148/2018 DATED 1.2.2018, FILED BY THE RESPONDENTS BEFORE THE CAT, ERNAKULAM BENCH.** **EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT DATED 20.3.2018, FILED BY THE PETITIONERS** **EXHIBIT P3 TRUE COPY OF THE REJOINDER DATED 30.5.2018, FILED BY THE APPLICANT.** **EXHIBIT P4 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT DATED 25.6.2018, FILED BY THE PETITIONERS.** **EXHIBIT P5 TRUE COPY OF THE COMMON ORDER IN OA NO.180/00148/2018 AND CONNECTED CASES, DATED 8.8.2018 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** O.P.(CAT) Nos.173, 176 & 190 of 2018 56 ## **APPENDIX OF OP (CAT) 190/2018** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE OA NO.180/00164/2018 DATED 07.02.2018 FILED BY THE RESPONDENTS BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** **EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT IN O.A.NO.180/00164/2018 DATED 28.05.2018 FILED BY THE PETITIONERS.** **EXHIBIT P3 TRUE COPY OF THE REJOINDER IN O.A.NO.180/00164/2018 DATED 26.06.2018 FILED BY THE APPLICANT BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** **EXHIBIT P4 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT IN O.A.NO.180/00164/2018 DATED 13.07.2018 FILED BY THE PETITIONERS.** **EXHIBIT P5 TRUE COPY OF THE ORDER IN O.A.NO.180/00164/2018 DATED 08.08.2018 ISSUED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.**