Central Excise and Customs Commissionerates Inspector (Central Excise, Preventive Officer and Examiner) Group ‘B’ Posts Recruitment Rules 2016 – r. 5 – Central Excise and Land Customs Department Inspector (Group C posts) Recruitment Rules 2002 – r.4(ii) – Constitution of India – Article 309, 14-16, 21 – Circular issued by CBIC stating that since 2016 Recruitment Rules (which superseded and substituted 2002 Recruitment Rules) do not contain any provision for recruitment by absorption, no application for Inter Commissionerate Transfers (ICTs) could be considered after the enforcement of those rules – Validity of the circular challenged – Challenge upheld by CAT – Decision reversed by High Court – Correctness of – Held: High court was justified in concluding that 2002 Recruitment Rules contained a specific provision for ICTs – There is an absence of a provision comparable to r. 4(ii) of 2002 Recruitment Rules in 2016 Recruitment Rules – On the contrary, r. 5 of 2016 Recruitment Rules specifically stipulates that each Cadre Controlling Authority (CCA) shall have its own separate cadre unless directed by the Central Board of Excise and Customs (CBEC) – Any ICT would violate the unique identity of each cadre envisaged in r. 5 – Any ICT order would transgress a field which is occupied by the rules which have been framed in terms of the proviso to Article 309 – The circular makes it clear that 2016 Recruitment Rules do not have any provision for recruitment by absorption and no ICT application could be considered after the coming into force of 2016 Recruitment Rules – Transfer is a condition of service and it is within the powers of the employer to take a policy decision either to grant or not to grant ICTs to employees – Power of judicial review cannot be exercised to interfere with a policy decision of that nature – While the judgment of the High Court is upheld, it is left 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 are duly protected – Service Law.

Constitution of India – Art. 21 – Preservation of family Life – Held: 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 because preservation of family life is an incident of Art. 21 – Service Law.

Constitution of India – Articles 14, 15 and 16 – Substantive equality of opportunity– Held: It becomes necessary for the Government to adopt policies through which it produces substantive equality of opportunity as distinct from a formal equality for women in the workplace – 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 – Therefore, 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 – Service Law.

Service Law – Transfer Policy – Rights of Persons with Disabilities Act, 2016 – Held: It 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.

Constitution of India – Judicial review – Policy Making – Held: Court in the exercise of judicial review cannot direct the executive to frame a particular policy - Yet, the legitimacy of a policy can be assessed on the touchstone of constitutional parameters – Service Law.