R. JAYASHREE Vs. UNION OF INDIA

JUDGEMENT

(1.) This writ petitioner challenges the judgment of the Central Administrative Tribunal ("CAT") dated 14.8.2012, which rejected her application O.A. 462/2012 and upheld her repatriation, by the second respondent, to Chennai. The petitioner's grievance is that the CAT's judgment focuses unduly on the question of maintenance of seniority consequent to transfer, an issue that she had conceded before the CAT, while the actual issue for consideration was the validity of her transfer to Chennai. The first respondent is the Union of India, through the Secretary, Ministry of Finance, while the second respondent is the Commissioner of Central Excise (DZ). The third respondent is Devender Kumar Singh (Superintendent).

(2.) By way of Office Memoranda dated 3.4.1986, 12.6.1997, and 30.9.09, the Department of Personnel and Training ("DoPT") stipulated that spouses were to be orindarily posted at the same station. By way of a circular by the Central Board of Excise and Customs ("CBEC") dated 19.2.2004 ("the 2004 circular"), no Inter- Commissionerate Transfer ("ICT") was to be allowed for any Group B, C and D employees from the date of entry into force of the circular. The circular stipulated that in exceptional circumstances where acceptance of such a transfer request was necessitated on compassionate grounds, such transfer would be on deputation basis for a period of 3 years, extendible by a further period of 2 years. By another CBEC circular dated 27.3.2009 ("the 2009 circular"), the 2004 circular's instructions were partially relaxed, to facilitate the posting of husband and wife in line with the instruction in the OM of 3.4.1986. As a consequence, even Group B, C and D officers were to be permitted ICT, without loss of seniority. This circular was further clarified in another circular of 7.8.2009 by the CBEC, stating that a request for ICT on the spouse ground without loss of seniority could also be considered against the promotion quota vacancies, as in some cadres, like that of Superintendents, only such vacancies were available.

(3.) The petitioner was working as Inspector of Customs and Central Excise. She was promoted by order of 27.3.2008 to Superintendent of Customs and Central Excise, which post she joined on 2.4.2008. The petitioner was allowed an ICT to Delhi, without loss of seniority, by establishment order of 30.9.09, which posting she commenced on 7.10.2009. Nothing in this order indicated that the transfer was on deputation basis, nor was there any period of deputation mentioned in the order. The Ernakulam bench of the CAT, in a challenge to the relaxation on spouse grounds, of the ban on ICTs in Groups B, C and D, and particularly the no loss of seniority rule, by order of 16.5.2011 ("the May 2011 CAT order") quashed the 2009 circular, insofar as it allowed transfer without loss of seniority. The May 2011 CAT order reasoned that retention of seniority was ordinarily only when the transfer was in public interest and transfers on request, like those on spouse grounds, resulted in loss of seniority. Under the Allocation of Business Rules, policy decisions regarding seniority in the services were within the exclusive jurisdiction of the DoPT. Consequently, other departments such as the CBEC in this case, were not permitted to take separate decisions in this regard without consulting the DoPT.