State's Transfer Policy Must Give Consideration To Importance Of Protecting Employees' Family Life : Supreme Court
"The State's interference in the rights of privacy, dignity, and family life of persons must be proportional", the Court stated.
Observing that the State's transfer policy must give due consideration to the importance of protecting family life, the Supreme Court has urged the Union of India to revisit the policy relating to transfers in the tax administration department.The Court was considering appeals against a Kerala High Court judgment which rejected the challenge against a circular issued by the Central Board...
Observing that the State's transfer policy must give due consideration to the importance of protecting family life, the Supreme Court has urged the Union of India to revisit the policy relating to transfers in the tax administration department.
The Court was considering appeals against a Kerala High Court judgment which rejected the challenge against a circular issued by the Central Board of Indirect Taxes and Customs(CBIC) in 2018 withdrawing Inter-Commissionerate Transfers(ICT)(Case : SK Naushad Rahman and others vs Union of India).
While the Supreme Court upheld the High Court's judgment which approved the withdrawal of the ICTs, it suggested that the policy needs to be revisited to accommodate posting of spouses, the needs of the disabled and compassionate grounds.
The appellants had challenged the policy on the aspects of gender equality and need for equal treatment of disabled persons. Dealing with these aspects, the bench comprising Justice DY Chandrachud and Justice Vikram Nath underscored the need to have a policy which can ensure substantive equality for women.
"Women are subject to a patriarchal mindset that regards them as primary caregivers and homemakers and thus, they are burdened with an unequal share of family responsibilities. Measures to ensure substantive equality for women factor in not only those disadvantages which operate to restrict access to the workplace but equally those which continue to operate once a woman has gained access to the workplace. The impact of gender in producing unequal outcomes continues to operate beyond the point of access. The true aim of achieving substantive equality must be fulfilled by the State in recognizing the persistent patterns of discrimination against women once they are in the work place", observed the judgment authored by Justice Chandrachud.
The Court noted that provision which has been made for spousal posting is in fundamentally grounded on the need to adopt special provisions for women which are recognized by Article 15(3) of the Constitution.
"The manner in which a special provision should be adopted by the State is a policy choice which has to be exercised after balancing out constitutional values and the needs of the administration. But there can be no manner of doubt that the State, both in its role as a model employer as well as an institution which is subject to constitutional norms, must bear in mind the fundamental right to substantive equality when it crafts the policy even for its own employees", the Court highlighted.
State's interference in rights of privacy, dignity and family life must be proportional
"The State's interference in the rights of privacy, dignity, and family life of persons must be proportional", the Court stated.
In withdrawing the circular allowing ICTs, the State was 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.
While acknowledging the State's interest, the Court said that its policy must also give due consideration to the importance of protecting family life.
"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", the Court said.
"Exceptional circumstances" & "Extreme Compassionate Grounds" left undefined
The Court noted that the 2018 Circular has made provisions for "exceptional circumstances" and "extreme compassionate grounds". However, these terms are left vague.
The Court said that the State should consider if the policy should be suitable enhanced to include cases involving spousal postings, disabled persons and 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".
Policy must take into account the right of the disabled to live with dignity
The other ground of challenge which has been raised is that the impugned circular does not take into account the needs of disabled persons in the State's workforce. In this regard, the Court noted that the Rights of Persons with Disabilities Act 2016 is a statutory mandate for recognizing the principle of reasonable accommodation for the disabled members of society
"The formulation of a policy therefore, must take into account the mandate which Parliament imposes as an intrinsic element of the right of the disabled to live with dignity", the Court observed.
In conclusion, the judgment held:
"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".
Principles on transfer summarised
The bench also summarized the principles relating to transfer and postings as follows :
First and foremost, transfer in an All India Service is an incident of service. Whether, and if so where, an employee should be posted are matters which are governed by the exigencies of service. An employee has no fundamental right or, for that matter, a vested right to claim a transfer or posting of their choice.
Second, executive instructions and administrative directions concerning transfers and postings do not confer an indefeasible right to claim a transfer or posting. Individual convenience of persons who are employed in the service is subject to the overarching needs of the administration.
Third, policies which stipulate that the posting of spouses should be preferably, and to the extent practicable, at the same station are subject to the equirement of the administration
Fourth, norms applicable to the recruitment and conditions of service of officers belonging to the civil services can be stipulated in:
(i) A law enacted by the competent legislature;
(ii) Rules made under the proviso to Article 309 of the Constitution; and
(iii) Executive instructions issued under Article 73 of the Constitution, in the case
of civil services under the Union and Article 162, in the case of civil services under the States.
Fifth, where there is a conflict between executive instructions and rules framed under Article 309, the rules must prevail. In the event of a conflict between the rules framed under Article 309 and a law made by the appropriate legislature, the law prevails. Where the rules are skeletal or in a situation when there is a gap in the rules, executive instructions can supplement what is stated in the rules.
Sixth, a policy decision taken in terms of the power conferred under Article 73 of the Constitution on the Union and Article 162 on the States is subservient to the recruitment rules that have been framed under a legislative enactment or the rules under the proviso to Article 309 of the Constitution.
Case Title :SK Naushad Rahman and others vs Union of India
Citation : 2022 LiveLaw (SC) 266
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