Service Law - Principles Of Transfer & Postings : Supreme Court Summarizes

The Supreme Court has reiterated that an employee has no fundamental right or a vested right to claim a transfer or posting of their choice.

A bench comprising Justices DY Chandrachud and Vikram Nath summarized the principles relating to transfer and postings in the judgment delivered on March 10 in the case SK Naushad Rahman and others vs Union of India 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.

The bench 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. The High Court had come to the conclusion that the Central Excise and Customs Commissionerates Inspector (Central Excise, Preventive Officer and Examiner) Group 'B' Posts Recruitment Rules 2016 do not contain any provision for ICTs and, on the contrary, stipulate that each Cadre Controlling Authority will have its own separate cadre, unless otherwise directed by the Central Board of Excise and Customs. The High Court held that ICTs would violate the unique identity of each cadre envisaged under Rule 5 of RR 2016 and hence the circular withdrawing ICTs is not invalid.

The appellants were Inspectors of the Central Excise and Land Customs and the Goods and Services Tax Administration, who were allocated to different CCAs.

Although the Court upheld the High Court judgment, it urged the Department to revisit the transfer policy to deal with the cases relating to spousal postings and the rights of the disabled.

 Also from the judgment - State's Transfer Policy Must Give Consideration To Importance Of Protecting Employees' Family Life : Supreme Court