Rajeev K. vs Union of India

T.B. Radhakrishnan, J.—These original petitions filed under Articles 226 and 227 of the Constitution of India, raise issues relating to Inter Commissionerate Transfers (ICT-for short) under the Central Board of Excise and Customs (CBEC-for short).

The crux of the issues is as to whether the ICT granted on the basis of spouse ground or compassionate ground deserves to be treated as transfers in public interest for protection of seniority which the officer may be allowed to carry from the parent commissionerate to the commissionerate to which that officer is transferred.

By order dated 16.05.2011, the Tribunal held that the question as to whether the spouse ground or compassionate ground is eligible to be treated as a ground of public interest is premature and therefore, has to be left open. Nonetheless, the Tribunal interfered with the orders of the establishment which protected seniority of some of the officers so transferred on spouse ground. This, inherently, leads to a clear contradiction between the findings rendered and the relief granted. If the issue as to whether a transfer on spouse ground or compassionate ground is eligible to protect seniority has to be left open as premature, then the resultant order granting or refusing to grant the protection of seniority could not have been interfered with.

Then comes another order dated 05.02.2013, whereby the Tribunal, in a different batch of matters, held ultimately that in the light of letter dated 27.10.2011, issued by the CBEC to all Chief Commissioners, ICT of willing individuals can be considered and transfer granted, but subject to loss of their seniority.

Having heard the learned senior counsel, the other learned advocates for the petitioners and the learned central government counsel, we see that there are different OMs issued by the Department of Personal and Training (DoPT) governing the field of transfer; seniority; transfer on spouse ground; transfer on compassionate ground; transfer on ground of physical disability; etc. When DoPT instructions regulate such field, the efficacy of the decisions of the individual departments as contained in letters issued by the departments to the subordinate officers may have to be considered differently. Be that as it may, the primary thrust of transfer on spouse ground, even going by the DoPT OMs, is a preference given to women and children, having regard to the welfare of family as a unit. Whatever that be, the issue cannot be concluded finally without deciding as to whether the transfer on spouse ground or compassionate ground are to be treated as strictly in public interest for the purpose of enabling an officer to carry his seniority from his parent commissionerate to the commissionerate to which that officer is transferred at his request on such ground in terms of the ICT norms.

The establishment is represented. Some of the employees who have come aspiring for ICT, are represented before us. Some of the organizations representing the interest of the staff are also represented. Yet, we think that the issue needs a deeper consideration, by the establishment placing before the Tribunal all relevant materials which would ultimately help the Tribunal to conclude as to whether transfers on spouse ground and compassionate ground are to be treated as transfers strictly in public interest, to enable the transferred officer to carryover the benefit of his seniority in the parent commissionerate de hors those seniority status of those in the commissionerate to which one may obtain transfer on spouse ground or compassionate ground. The heart burn of officers who are already working in the commissionerate to which the particular officer gets transferred and vested rights inter se members of the service and other relevant aspects would necessarily have to be gone into, to decide the eligibility for protection of seniority.

On the whole, we are of the view that in none of the matters which are before us, the Tribunal had the opportunity to adjudicate on the aforesaid issue. The Tribunal had, in fact, excluded itself from doing so, may be due to paucity of materials and pleadings showing the development of the field occupied by the DoPT instructions and other relevant particulars, chronologically. We are of the clear view that the issue is not premature and it has to be decided. Otherwise, it has to go back to the authority of the first instance which will be the controlling authority of a particular commissionerate to decide on this particular issue of law and then apply to settle the inter se seniority. That may not be in the interest of the employees or the establishment, more importantly because, DoPT''s views would have primacy.

For the aforesaid reasons, the impugned orders of the Tribunal are set aside, without expressing anything on merits as regards the rival contentions as to the applicability of any particular DoPT OM or other instructions and the arguments advanced as to the concept of ''public interest'' in the context of ICT on spouse ground, compassionate ground, physical disability ground etc. Parties are directed to mark appearance before the Tribunal on 03.03.2014. We may, before parting, sound a word of caution that if any of the original petitioners requires further impleadment of necessary parties as may be needed, it would be appropriate for the parties to make such applications before the learned Tribunal since the issues relating to seniority cannot be decided without necessary parties being on array; that being the settled law. It is also directed that the Tribunal shall include DoPT in the array of respondents and require its views in the matter. Notwithstanding the aforesaid, it is hereby ordered that all applications for ICT received and pending shall be decided upon, without reference to the question of inter se seniority, and if transfers are eligible to be granted, they shall be issued at the earliest, as per norms. All officers continuing on the strength of interim orders will continue to hold so until the matter is decided by the respective Commissionerates, on the question of request for ICT. The original petitions and the interlocutory applications are ordered accordingly.