Holding

The Court held that the 2016 Recruitment Rules do not provide for ICTs, the circular correctly reflects this statutory omission, and the power to grant ICTs is a policy decision not enforceable as a right, rendering the ban valid and beyond the scope of judicial interference.

Summary

The petitioners, inspectors under the Central Excise and Customs cadre, challenged a circular dated 20 September 2018 that barred Inter‑Commissionerate Transfers (ICTs) after the 2016 Recruitment Rules came into force, alleging violations of Articles 14, 15, 16 and 21 of the Constitution and the Rights of Persons with Disabilities Act. The High Court upheld the circular, but the Supreme Court examined whether the 2016 Rules contain any provision for ICTs and whether the circular could be overridden by executive instructions or policy considerations. The Court held that the 2016 Rules expressly omit any provision for recruitment by absorption, that each Cadre Controlling Authority must have a separate cadre, and that ICTs are a policy decision, not a vested right. Consequently, the circular correctly reflects the statutory framework and is not unconstitutional. The Court affirmed the High Court’s decision, dismissed the appeals, and left it to the executive to revisit the policy for special cases such as spousal posting, disability, and compassionate grounds.

Issues considered

Whether the Central Excise and Customs Commissionerate Inspector (Group B) Recruitment Rules 2016 contain a provision permitting Inter‑Commissionerate Transfers by absorption.
Whether the circular dated 20 September 2018, which bans ICTs, is valid in view of the recruitment rules and constitutional guarantees of equality and family life.
Whether executive instructions or Department of Personnel and Training (DoPT) memoranda can fill the gap left by the absence of a specific provision in the 2016 Rules.
Whether the ban on ICTs violates Articles 14, 15, 16 and 21 of the Constitution or the Rights of Persons with Disabilities Act, 2016.
Whether the power to grant or deny ICTs, being a policy decision, is subject to judicial review.

Legislation cited

Constitution of Indias. Article 14, s. Article 15, s. Article 16, s. Article 162, s. Article 21, s. Article 309, s. Article 73, s. Article 77
Government of India (Allocation of Business) Rules, 1961
Government of India (Transaction of Business) Rules, 1961s. Rule 4(4)
Rights of Persons with Disabilities Act, 2016

Subjects

service lawinter‑commissionerate transferrecruitment rulescadreabsorptionpolicy decisionjudicial reviewconstitutional equalitysubstantive equalityfamily lifedisability accommodationArticle 309transfer policy

Judgment

[2022] 12 S.C.R. 591 591

SK NAUSAD RAHAMAN & ORS. A
v.
UNION OF INDIA AND ORS.
(Civil Appeal No. 1243 of 2022)
MARCH 10, 2022 B
[DR. DHANANJAYA Y CHANDRACHUD AND
VIKRAM NATH, JJ.]
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 C
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
D
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 E
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
F
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 G
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,
H
591
592 SUPREME COURT REPORTS [2022] 12 S.C.R.

A 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 –
B 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.

C 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
D 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.
E 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.
F
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.
G
Disposing of the appeals, the Court
HELD: 1.1 Certain basic precepts of service jurisprudence
must be borne in mind:
i. First and foremost, transfer in an All India Service is an
H incident of service. Whether, and if so where, an employee should
SK NAUSAD RAHAMAN & ORS. v. UNION OF INDIA 593
AND ORS.

be posted are matters which are governed by the exigencies of A
service. An employee has no fundamental right or, for that matter,
a vested right to claim a transfer or posting of their choice.
ii. Second, executive instructions and administrative
directions concerning transfers and postings do not confer an
indefeasible right to claim a transfer or posting. Individual B
convenience of persons who are employed in the service is
subject to the overarching needs of the administration.
iii. 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 requirement of the administration. C
iv. Fourth, norms applicable to the recruitment and
conditions of service of officers belonging to the civil services
can be stipulated in:
a. A law enacted by the competent legislature;
D
b. Rules made under the proviso to Article 309 of the
Constitution; and
c. 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.
E
v. 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
F
there is a gap in the rules, executive instructions can supplement
what is stated in the rules.
vi. 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 G
under the proviso to Article 309 of the Constitution. [Paras 23 -
29][621-A-D; 622-F-G; 623-A-C]
1.2 RR 2002 contained in Rule 4 a “Special Provision”.
Rule 4(i) envisaged that each Commissionerate shall have its
H
594 SUPREME COURT REPORTS [2022] 12 S.C.R.

A own separate cadre unless otherwise directed by the CBEC. Rule
4(ii) commenced with a non-obstante provision in terms of which,
the jurisdictional Chief Commissionerate of Central Excise was
empowered to order that any post in the Commissionerate may
be filled up by absorption of persons holding the same or
comparable post belonging to the cadre of another
B
Commissionerate under the CBEC. The non-obstante provision
was necessary because Rule 4(i) contained a mandate for each
Commissionerate to have its own separate cadre unless the
CBEC directed otherwise. The plain consequence of each
Commissionerate having its own cadre was to preclude the
C appointment of a person belonging to the cadre of another Com
relied on missionerate by way of absorption. The bar on the
absorption of persons from outside the cadre was lifted as a
consequence of Rule 4(ii), which by embodying a non-obstante
provision allowed the jurisdictional Chief Commissionerate to
allow a post in the Commissionerate to be filled by persons holding
D
the same or comparable post but belonging to the cadre of another
Commissionerate. In RR 2016 as notified, Rule 5 states that each
CCA shall have its own separate cadre, unless otherwise directed
by the CBEC. The ‘Commissionerate’ in the erstwhile Rule 4(ii)
was substituted by the expression “Cadre Controlling Authority”
E in Rule 5 of RR 2016. The clear intent of Rule 5 is that there
would be a separate cadre for each CCA and only CBEC is
entrusted with the authority to direct otherwise. Hence only CBEC
could direct the constitution of a joint cadre for more than one
Commissionerate. The enabling power which was conferred on
jurisdictional Chief Commissionerate in Rule 4(ii) of RR 2002 is
F
conspicuously absent in Rule 5 of RR 2016. The central
submission which has been urged on behalf of the appellant is
that since in RR 2016 there is no provision corresponding to
Rule 4(ii) of RR 2002, there is a silence on the subject of the
absorption of persons belonging to the cadre of another
G Commissionerate and this silence or gap can be supplemented
by executive instructions. The executive instructions, it was
submitted, would be those which are embodied in the OMs which
have been issued by DoPT or the instructions which have been
issued by the Department of Revenue from time to time. There
is a fundamental fallacy in the submission which has been urged
H
SK NAUSAD RAHAMAN & ORS. v. UNION OF INDIA 595
AND ORS.

on behalf of the appellants. Administrative instructions, it is well- A
settled, can supplement rules which are framed under the proviso
to Article 309 of the Constitution in a manner which does not
lead to any inconsistencies. Executive instructions may fill up
the gaps in the rules. But supplementing the exercise of the rule
making power with the aid of administrative or executive
B
instructions is distinct from taking the aid of administrative
instructions contrary to the express provision or the necessary
intendment of the rules which have been framed under Article
309. RR 2016 have been framed under the proviso to Article
309. Rule 5 of RR 2016 contains a specific prescription that each
CCA shall have its own separate cadre. The absence of a provision C
for filling up a post in the Commissionerate by absorption of
persons belonging to the cadre of another Commissionerate
clearly indicates that the cadre is treated as a posting unit and
there is no occasion to absorb a person from outside the cadre
who holds a similar or comparable post. [Paras 30-32][623-C-H;
D
624-A-F]
1.3 Rule 5 of RR 2016 postulates that each CCA has a
separate cadre and does not contain a provision for bringing in,
by way of absorption, persons from outside the cadre. Inducting
persons from outside the cadre by absorption requires a specific
provision in the subordinate legislation for the simple reason that E
the concept of a cadre would otherwise militate against bringing
in those outside the cadre. That is the reason why Rule 4(ii) of
the erstwhile RR 2002 contained a specific provision to this effect.
That provision has however not been included when RR 2016
were framed. If the authority entrusted with the power of framing F
rules under Article 309 of the Constitution did so on the ground
that the provision was subject to misuse and was contrary to the
interests of the administration, no employee can assert a vested
right to claim an ICT. [Para 34][626-C-E]
1.4 Undoubtedly, while all matters pertaining to the CBEC G
and CBDT are under the domain of the Department of Revenue,
there has to be a harmonious construction with the subjects which
are assigned to the DoPT. In fact, the need for a harmonious
reading is emphasized, as we have seen earlier, in Rule 4(4) of

H
596 SUPREME COURT REPORTS [2022] 12 S.C.R.

A The Government of India (Transaction of Business) Rules 1961,
which requires the advice of DoPT to be sought on methods of
recruitment and conditions of service and on the interpretation
of existing orders relating to recruitment and conditions of
service. The executive instructions which have been issued by
the DoPT cannot however prevail over the specific provisions
B
which are contained in the rules which have been framed under
the proviso to Article 309 of the Constitution. Faced with this
difficulty, the appellants have sought to urge that Rule 4(ii) of RR
2002 was not included while RR 2016 were being framed on the
advice of the DoPT on the ground that such a provision is
C generally not made in the recruitment rules. This submission is
based on the disclosure made by the Department of Revenue
under the Right to Information Act 2005 on 3 July 2018. The
attachment with the RTI disclosure contains the tabulation which
indicates that the proposal which was under consideration was
the provision for Inter-Commissionerate deputation without
D
deputation allowance. This was suggested for deletion. DoPT
observed that such a provision is generally not made in the
recruitment rules and thus, the proposal may be agreed to. But
apart from this, the Department of Revenue did not deem it fit to
adopt the specific provision which was contained in Rule 4(ii) of
E RR 2002 under which absorption of persons from other cadres
was envisaged at the Commissionerate level, when Rule 5 of RR
2016 was framed. In the absence of a specific provision to that
effect, an employee from outside the cadre under the control of a
CCA cannot claim an ICT based on executive instructions. The
executive instructions which have been issued by DoPT in the
F
form of OMs will not prevail over RR 2016 which have been
framed under the proviso to Article 309. Similarly, the instructions
which were issued by the Department of Revenue on 27 March
2009, relaxing the ban on ICT, which was imposed on 19 February
2004 and the subsequent instructions dated 27 October 2011
G were issued at the time when RR 2016 were yet to be framed.
These instructions will not govern or prevail when the regime
envisaged under RR 2016 came into force. [Paras 38, 39][630-
D-G; 631-F-H; 632-A-C]
1.5 The High Court was justified in coming to the
H conclusion that: (i) RR 2002 contained a specific provision for
SK NAUSAD RAHAMAN & ORS. v. UNION OF INDIA 597
AND ORS.

ICTs; (ii) There is an absence of a provision comparable to Rule A
4(ii) of RR 2002 in RR 2016; (iii) On the contrary, Rule 5 of RR
2016 specifically stipulates that each CCA shall have its own
separate cadre unless directed by the CBEC; (iv) Any ICT would
violate the unique identity of each cadre envisaged in Rule 5; (v)
Any ICT order would transgress a field which is occupied by the
B
rules which have been framed in terms of the proviso to Article
309 of the Constitution; (vi) The circular dated 20 September
2018 makes it absolutely clear that RR 2016 do not have any
provision for recruitment by absorption and no ICT application
could be considered after the coming into force of RR 2016; (vii)
Transfer is a condition of service and it is within the powers of C
the employer to take a policy decision either to grant or not to
grant ICTs to employees; and (viii) The power of judicial review
cannot be exercised to interfere with a policy decision of that
nature. [Para 42][634-C-G]
1.6 The realm of policy making while determining the D
conditions of service of its employees is entrusted to the Union
for persons belonging to the Central Civil Services and to the
States for persons belonging to their civil services. This 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. Moreover, short E
of testing the validity of a policy on constitutional parameters,
judicial review can certainly extend to requiring the State to take
into consideration constitutional values when it frames policies.
The State, consistent with the mandate of Part III of the
Constitution, must take into consideration constitutional values F
while designing its policy in a manner which enforces and
implement those values. [Para 43][634-G-H; 635-A-B]
1.7 This Court has spoken about the systemic discrimination
on account of gender at the workplace which encapsulates the
patriarchal construction that permeates all aspects of a woman’s G
being from the outset, including reproduction, sexuality and
private choices, within an unjust structure. The OMs which have
been issued by DoPT from time to time recognized that in
providing equality and equal opportunity to women in the

H
598 SUPREME COURT REPORTS [2022] 12 S.C.R.

A workplace of the State, 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. 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.
B
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
C 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.
The DoPT OMs dated 3 April 1986, 23 August 2004, 8 July 2009
and 30 September 2009 recognised the impact of underlying social
structures which bear upon the lives of women in the work place
D
and produce disparate outcomes coupled with or even without
an intent to discriminate. The provision which has been made for
spousal posting is in that sense 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
E 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
F
it crafts the policy even for its own employees. [Para 48][637-D-
H; 638-A-C]
1.8 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
G 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. [Para 49][638-C-D; 639-
A]
Vikash Kumar v. Union Public Service Commission and
H Others (2021) 5 SCC 370; Avni Prakash v. National
SK NAUSAD RAHAMAN & ORS. v. UNION OF INDIA 599
AND ORS.

Testing Agency and Others 2021 SCC OnLine SC 1112; A
Ravinder Kumar Dhariwal and Another v. Union of
India and Others 2021 SCC OnLine SC 1293; Akshay
N. Patel v. Reserve Bank of India 2021 SCC OnLine
SC 1180 – relied on.
1.9 The State in the present case has been guided by two B
objectives: first, the potential for abuse of ICTs and second, the
distortion which is caused in service leading to plethora of
litigation. 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 C
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. D
[Para 51][639-D-E]
1.10 The circular dated 20 September 2018 has taken into
account, what it describes “exceptional circumstances” such as
“extreme compassionate grounds”. Leaving these categories
undefined, the circular allows for individual cases to be determined E
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 F
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. G
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
H
600 SUPREME COURT REPORTS [2022] 12 S.C.R.

A 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.
B
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. [Paras 52, 53][639-F-H; 640-A-D]
Prabir Banerjee v. Union of India and Others (2007) 8
C SCC 793 : [2007] 10 SCR 694 – distinguished.
Bank of India v. Jagjit Singh Mehta (1992) 1 SCC 306
: [1991] 2 Suppl. SCR 492;Union of India v. SL Abbas
(1993) 4 SCC 357 : [1993] 3 SCR 427; Lt. Col. Nitisha
and Others v. Union of India 2021 SCC Online SC
D 261 – relied on.
Union of India and Others v. Somasundaram Viswanath
and Others, (1989) 1 SCC 175 : [1988] 3 Suppl. SCR
146; State of Orissa and Others v. Prasana Kumar
Sahoo (2007) 15 SCC 129 : [2007] 5 SCR 697; JS
E Yadav v. State of UP. (2011) 6 SCC 570 : [2011] 5 SCR
460; Jarnail Singh v. Lacchmi Narain Gupta 2022 SCC
OnLine SC 96 – referred to.
Case Law Reference

F [1991] 2 Suppl. SCR 492 relied on Para 26
[1993] 3 SCR 427 relied on Para 27
[1988] 3 Suppl. SCR 146 referred to Para 28
[2007] 5 SCR 697 referred to Para 29
G [2011] 5 SCR 460 referred to Para 33
[2007] 10 SCR 694 distinguished Para 40
CIVIL APPELLATE JURISDICTION : Civil Appeal No.1243
of 2022.

H
SK NAUSAD RAHAMAN & ORS. v. UNION OF INDIA 601
AND ORS.

From the Judgment and Order dated 10.04.2019 of the High Court A
of Kerala at Ernakulam in O.P.(CAT) No.190 of 2018.
With
Civil Appeal Nos.1246-1248, 1244-1245, 1249, 1250, 1251-1265,
1266 and 1267 of 2022.
K. M. Nataraj, ASG, Maninder Singh, Rana Mukherjee, P. N. B
Ravindran, Narender Hooda, Ms. Vibha Datta Makhija, Vikas Singh, Sr.
Advs., Umakant Misra, Sibo Sankar Mishra, Yelamanchili Shiva Santosh
Kumar, Aditya Bhat, Tarun Gupta, Rishi Kapoor, Ashish Pandey, Kapish
Seth, Prateek Rai, Ashutosh Bhardwaj, Akanshya Rai, Ms. Saksha Jha,
Sandeep Sharma, Vishwa Pal Singh, Mukesh Kumar Maroria, Mohd.
Akhil, Anulalp Jain, P. V. Yogeswaran, Abhishek Kumar, Shailesh Madiyal, C
Ronak Karanpuria, Shyam Agarwal, Yashraj Singh Deora, Ms. Prakriti
Roy, Advs. for the appearing parties.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
A Facts ........................................................................ 4* D
B Relevant circulars and notifications ................ 10*
B.1 .....................Executive Instructions issued by
DoPT .................................................................... 10*
B.2 Circulars issued by Department of Revenue,
E
Ministry of Finance ............................................ 14*
C Submissions ......................................................... 19*
D Analysis ................................................................ 26*
A Facts
1. A Division Bench of the High Court of Kerala dealt with a F
batch of petitions under Article 226 of the Constitution challenging the
orders of the Central Administrative Tribunal on the issue of the
withdrawal of Inter-Commissionerate Transfers1. The High Court has
come to the conclusion that the Central Excise and Customs
Commissionerates Inspector (Central Excise, Preventive Officer and
Examiner) Group ‘B’ Posts Recruitment Rules 20162 do not contain any G
provision for ICTs and, on the contrary, stipulate that each Cadre
Controlling Authority3 will have its own separate cadre, unless otherwise
1
“ICT”
2
“Recruitment Rules 2016” or “RR 2016”
3
“CCA”
*Ed. Note : Pagination is as per the original Judgment. H
602 SUPREME COURT REPORTS [2022] 12 S.C.R.

A 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 judgment of the High Court has given rise to the batch of
civil appeals.
B 2. The appellants are Inspectors of the Central Excise and Land
Customs or, as the case may be, Goods and Services Tax Administration,
who were allocated to different CCAs. Section 4 of the Customs Act
1962 provides that the Central Board of Indirect Taxes and Customs4
may appoint such persons as it thinks fit to be officers of customs. A
similar provision is contained in Section 4 of the Central Goods and
C Services Tax Act 20175, which states that:
“4. (1) The Board may, in addition to the officers as may be notified
by the Government under section 3, appoint such persons as it
may think fit to be the officers under this Act.
(2) Without prejudice to the provisions of sub-section (1), the Board
D may, by order, authorise any officer referred to in clauses (a) to
(h) of section 3 to appoint officers of central tax below the rank
of Assistant Commissioner of central tax for the administration of
this Act.”
The expression ‘Board’ is defined in Section 2(16) of the CGST
E Act as the Central Board of Excise and Customs6 constituted under the
Central Boards of Revenue Act 1963.
3. On 29 November 2002, the Central Excise and Land Customs
Department Inspector (Group C posts) Recruitment Rules 20027 were
notified. RR 2002 trace the source of power to the proviso to Article 309
of the Constitution. Rule 4 was in the following terms:
F
“4. Special provision. - (i) Each Commissionerate shall have its
own separate cadre unless otherwise directed by the Central Board
of Excise and Customs*
(ii) Notwithstanding anything contained in sub-rule (1), the
jurisdictional Chief Commissioner of Central Excise may,if he
G
considers to be necessary or expedient in the public interest so to
4
“CBIC”
5
“CGST Act”
6
“CBEC”
7
“Recruitment Rules 2002” or “RR 2002”
*
H Now referred to as Centra Board of Indirect Taxes and Customs (CBIC)
SK NAUSAD RAHAMAN & ORS. v. UNION OF INDIA 603
AND ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

do and subject to such conditions as he may determine having A
regard to the circumstances of the case and for reasons to be
recorded in writing, order any post in the Commissionerate of
Central Excise to be filled by absorption of persons holding the
same or comparable posts but belonging to the cadre another
Commissionerate or Directorate under the Central Board of Excise
B
and Customs.”
4. RR 2002 were superseded and substituted by RR 2016. Rule 5
of RR 2016 provides that:
“5.Special Provision.– Each Cadre Controlling Authority (CCA)
shall have its own separate cadre, unless otherwise directed by
the Central Board of Excise and Customs.” C
5. A comparison of Rule 4 of RR 2002 with Rule 5 of RR 2016
would indicate that Rule 5 is similar to Rule 4(i) of the erstwhile Rules.
Rule 4(i) stipulates that each Commissionerate shall have its own separate
cadre, unless otherwise directed by the CBIC. Rule 5 of RR Rules 2016
substitutes the expression “CCA” for the expression “Commissionerate”. D
Significantly, Rule 4 (ii) of RR 2002 does not find place in Rule 5 of RR
2016. Rule 4(ii) contained a non-obstante provision under which a
jurisdictional Chief Commissioner of Central Excise had enabling power
to allow the absorption of persons from another Commissionerate under
the CBIC in the public interest, and subject to conditions as would be E
determined. Rule 4(ii) of RR 2002 which contains an express provision
for ICTs was not incorporated in Rule 5 when RR 2016 were notified.
6. On 20 September 2018, the CBIC issued a circular8 stating
that since RR 2016 do not contain any provision for recruitment by
absorption, no application for ICTs could be considered after the
enforcement of those rules. The circular forms the genesis of the dispute F
in the present case and is hence extracted below:
“CIRCULAR
Subject: Instructions in respect of Inter Commissionerate
Transfer (ICT) in the light of new Recruitment Rules, 2016-
regarding. G
These instructions are being issued in terms of “Central Excise
and Customs Commissionerate Inspector (Central Excise,
Preventive Officer and Examiner) Group B Posts
Recruitment Rules, 2016”
8
F. No. A-22015/117/2016-Ad.IIIA dated 20 September 2018 H
604 SUPREME COURT REPORTS [2022] 12 S.C.R.

A 2. Any executive instruction in contravention of the Recruitment
Rules will be void in accordance with the ratio of the judgment of
the Hon’ble Supreme Court of India in the case of UOI & others
Vs. Somasundran1 Viswanath & Ors. dated 22.09.1988 (1990
SC 166 (10) which held as follows: -
B (1) “It is well settled that the norms regarding recruitment
and promotion of officers belonging to the Civil Services can
be laid down either by a law made by appropriate Legislature
or by rules made under the proviso to Article 309 of the
Constitution of India or by means of executive instructions
issued under article 73 of the Constitution of India in the
C case of Civil Services under the Union of India and under
Article 162 of the constitution of India in the case of Civil
Services under the State Governments. If there is a conflict
between the executive instructions and the rules made under
the proviso to Article 309 of the Constitution of India, the
D rules made under proviso to Article 309 of the Constitution
of India prevail.” Thus, the Recruitment Rules formulated under
Article 309 will prevail over any executive instruction that may be
contradictory to it”
3. It has come to the notice of this office that various CCAs
E (Cadre Control Authorities) are taking divergent stands on the
issue of Inter Commissionerate Transfers (!CT) of officers in the
cadre of Inspector on the basis of guidelines issued vide F.No. A
22015/23/2011-AD IIIA dated 27.10.2011. The issue of Inter
Commissionerate Transfer under “Central Excise and Customs
Commissionerate Inspector (Central Excise, Preventive
F Officer and Examiner) Group B Posts Recruitment Rules,
2016” has been examined by the Board and following has been
observed.
4. The ICT applications were being considered under Rule 4 of
erstwhile Central Excise and Land Customs Department Inspector
G (Group ‘C’ Posts) Recruitment Rules, 2002 which stated that:
“Rule 4. Special provision. - (i) Each Cadre controlling
Authority (CCA) shall have its own separate cadre unless
otherwise directed by the Central Board of Excise and Customs
(ii) Notwithstanding anything contained in sub-rule (1), the
H jurisdictional Chief Commissioner of Central Excise may, if
SK NAUSAD RAHAMAN & ORS. v. UNION OF INDIA 605
AND ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

he considers to be necessary or expedient in the public interest A
so to do and subject to such conditions as he may determine
having regard to the circumstances of the case and for reasons
to be recorded in writing, order any post in the
Commissionerate of Central Excise to be filled by absorption
of persons holding the same or comparable posts but
B
belonging to the cadre another Commissionerate of
Directorate under the Central Board of Excise and Customs.
However, under Recruitment Rules, 2016 the corresponding
provision containing the special provision under Rule 5 provides
that “Each Cadre Controlling Authority (CCA) shall have its
own separate cadre unless otherwise directed by the Central C
Board of Excise and Customs.”
5. From the above, it is clear that Recruitment Rules, 2016 do not
have any provision for recruitment by absorption and accordingly,
no ICT application can be considered after coming into force of
the Recruitment Rules, 2016. D

6. In exceptional circumstances depending upon the merit of each
case such as extreme compassionate grounds, such transfers may
be allowed on case to case on loan basis alone keeping in view
the administrative requirements of transferee and transferred
Cadre Controlling Authority. However, maximum tenure of such E
transfer will be three years and can be extended with the specific
approval of the Board for a further period of two years depending
upon the administrative requirement. It is further reiterated that
the officials transferred on the loan basis shall not be considered
for promotion unless they re-join their parent cadre. F
7. Now, therefore, it is hereby clarified that an office order for
Inter Commissionerate Transfer in the Grade of Inspectors issued
on or after 26.12.2016 (i.e. from the date of enactment of RR,
2016) will be non-est and accordingly any officer who has joined
another zone in pursuance of such order shall be treated as a G
deemed case on loan basis w.e.f. 26.12.2016. These officers
shall be on deemed loan till 31.03.2019, on which date the officers
shall stand relieved and be reverted to their parent Zones. […]”
7. While clarifying that under RR 2016, there is no specific provision
allowing for ICTs, the circular notes that Rule 5 stipulates that each
H
606 SUPREME COURT REPORTS [2022] 12 S.C.R.

A CCA will have its own separate cadre, unless otherwise directed by the
Board. Rule 5 has been construed to mean that given that each CCA is
to have its own cadre, ICTs, which involve a transfer from one
Commissionerate to another would no longer be permissible and
accordingly all orders for such transfers which were issued on or after
26 December 2016 (the date on which RR 2016 were notified) would be
B
non-est. The circular, however, allows that in exceptional circumstances,
depending upon the merits of each case and on extreme compassionate
grounds, such transfers may be allowed on ‘case to case onloan basis’
keeping in view the administrative requirements of the transferee and
the transferred CCAs. However, the maximum tenure of such transfer
C has been fixed as three years which can be extended by a further period
of two years.
8. The validity of the circular dated 20 September 2018 was
challenged before the Central Administrative Tribunal. The challenge
was upheld by the Tribunal. The High Court, in the exercise of its
D jurisdiction under Article 226, reversed the decision of the Tribunal.
B Relevant circulars and notifications
9. In order to appreciate the controversy in its entirety, it would be
necessary to deal with the circulars and office memoranda9 which have
held the field in the past. There are two sets of executive instructions: (i)
E the first set concerns those instructions which were issued by the
Department of Personnel and Training10 and (ii) the second set concerns
executive instructions which were issued by the Department of Revenue.
B.1 Executive Instructions issued by DoPT
10. The following executive instructions have been issued by the
DoPT regarding ICTs:
F
(i) On 3 April 1986, an OM11 was issued by DoPT. The subject
of the OM was: “Posting of husband and wife at the same
station”. The OM dealt with the posting of employees of
the Central Government and underscored that within
administrative constraints, it was the policy of the
G Government that spouses should be posted at the same
station as far as possible. Paragraph 2 of the circular
indicated its rationale in the following terms.
9
“OM”
10
“DoPT”
11
H No. 28036/7/86-Estt(A)
SK NAUSAD RAHAMAN & ORS. v. UNION OF INDIA 607
AND ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

“2.The Govt. of India have given the utmost importance A
to the enhancement of women’s status in all sectors and
all walks of life. Strategies and policies are being
formulated and implemented by different Ministries of
the Central Govt. to achieve this end. It is also considered
necessary to have a policy which can enable women
B
employed under the Govt and the public sector and
undertaking to discharge their responsibilities as wife/
mother on the one hand and productions workers on the
other, more-effectively.It is the policy of the Govt. that
as far as possible and within the constraints of
administrative feasibility, the husband and wife should C
be posted at the same station to enable them to lead a
normal family life and to ensure the education and
welfare of their children.”
Paragraph 4 of the circular envisaged various situations, depending
upon the service to which spouses may belong and illustrated the following D
eventualities:
“4. The classes of cases that may arise, and the guidelines for
dealing with each class of case, are given below: -
(i) Where the spouse belong to the same All India Service or
two of the All India Service namely IAS, IPSA and Indian E
Forest Services (Group-A).
(ii) Where one spouse belongs to one of the All India Service
and the other spouse belongs to one of the Central Services: -
The cadre controlling authority of the Central Service may
post the officer to the station or if there is no post in that station F
to the State where the other spouse belonging to the All India
Service is posted.
(iii) Where the spouse belong to the same central service:
The cadre controlling authority may post the spouses to the
same station. G
(iv) Where the spouse belongs to one Central Service and the
other spouse belongs to another Central Service: -
The spouse with the longer service at a station may apply to
the appropriate cadre controlling authority and the said authority
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608 SUPREME COURT REPORTS [2022] 12 S.C.R.

A may post the said officer to the station, or if there is no post in
that station to the State where the other spouse belonging to
the other central service is posted.
(v) Where one spouse belongs to an All India Service and the
other spouse belongs to a public sector:
B The spouse employed under the public sector undertaking may
apply to the competent authority and said authority may post
the said officer to the station, or if there is no post under the
PSU in that station, to the State where the other spouse is
posted.
C (vi) Where one spouse belongs to a central service and other
spouse belongs to PSU:
The spouse employed under the PSU may apply to the
competent authority and the said authority may post the officer
to the station, to the State where the other spouse is posted.If,
D however, the request cannot be granted because the PSU has
no post in the said station/State, then the spouse belonging to
the central services may apply to the appropriate cadre
controlling authority and the said authority may post the said
officer to the station or if there is no post in that station, to the
E state where the spouse employed under PSU is posted.
(vii) Where one spouse is employed under the Central Govt.
and the other spouse is employed under the State Govt.:
The spouse employed under the central Govt. may apply to
the competent authority may post the said officer to the station
F or if there is no post in that station to the State where the other
spouse posted.”
While recognising that the above illustrations would not cover
every case, the OM envisaged that each case not covered by the guidelines
would be considered bearing in mind the underlying object of ensuring
G that spouses are, as far as possible and within the constraints of
administrative convenience, posted at the same station.
(ii) An OM12 dated 29 May 1986 was issued by the DoPT
which dealt with the seniority of the persons absorbed after
being on deputation;
12
H No. 20020/7/80-Estt.D
SK NAUSAD RAHAMAN & ORS. v. UNION OF INDIA 609
AND ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

(iii) An OM13 was issued on 12 June 1997 which dealt with the A
“posting of husband and wife at the same station” after the
report of the Fifth Central Pay Commission. The OM
reiterated the guidelines contained in the earlier OM dated
3 April 1986 for deciding requests for posting of spouses at
the same station and envisaged that it should be ensured
B
that such posting is invariably done until the children attain
the age of 10 years if a vacancy exists in the organization
at the same station and no administrative problem arisesas
a consequence;
(iv) By an OM14 dated 23 August 2004, it was noted that the
instructions contained in the OMs dated 3 April 1986 and C
12 June 1997 were not being followed in letter and spirit by
the Ministries and Departments even in the absence of
administrative constraints. Accordingly, the OM sought to
impress upon all Ministries/Departments “that the guidelines
laid down in the aforesaid office memorandum are strictly D
followed while deciding the request for posting of husband
and wife at the same station”. The OM further stated that
“the policy of the Government has been to give utmost
importance to the enhancement of women’s status in all
sectors and all walks of life”;
(v) On 8 July 2009, an OM15 was issued indicating that the E
Union Government had taken several steps towards
“advancement, development and empowerment of women”,
while being conscious of the fact that “women employees
play a positive role in their families as well as at their
workplace”. The annexure to the OM summarised the F
policies which have been formulated by the Union
Government towards achieving this objective and among
them was a provision for posting of spouses at the same
station.In that context, the annexure stated:
“Posting of husband & wife at the same station. G
The Govt. of India has issued detailed instructions to its
offices to ensure the posting of the husband and wife at
13
No. 28034/2/97-Estt.(A) New Delhi
14
No.28034/23/2004-Estt.(A)
15
No.13018/4/2009-Estt.(L)
H
610 SUPREME COURT REPORTS [2022] 12 S.C.R.

A the same station so as to enable them to lead a normal
family life and to ensure the education and welfare of
their children (O.M. No.28034/2/27-Estt-A dated
3.4.1986 & 12.6.1997).
To facilitate posting of couples in the same station, it
B has been approved that in case of a woman officer whose
husband is posted under the Govt. of India, the ‘cooling
off’ period may be valued up to six months so that she
may get a posting at the station where her husband is
posted.”
C (vi) By an OM16 dated 30 September 2009, the earlier guidelines
were consolidated and it was stipulated that when both
spouses are in the Central Government or work in the same
Department and if posts are available, they must invariably
be posted together. Paragraph 5 of the OM stated that:

D “5. Complaints are sometimes received that even if posts
are available in the station of posting of the spouse, the
administrative authorities do not accommodate the
employees citing administrative reasons. In all such
cases, the cadre controlling authority should strive to
post the employee at the station of the spouse and in
E case of inability to do so, specific reasons, therefor, may
be communicated to the employee.”
(vii) By an OM17 dated 31 December 2010, the guidelines were
notified for amendments in or for relaxation of the
recruitment rules.
F
B.2 Circulars issued by Department of Revenue, Ministry of
Finance
11. The following circulars have been issued by the Department
of Revenue regarding ICTs:
G (i) On 13 May 1998, a circular18 was issued by the Ministry of
Revenue to all the Chief Commissioners of Customs and
Central Excise on the subject of Inter-Commissionerate
Transfers. The circular stipulated that:
16
No.F.No.28034/9/2009-Estt.(A)
17
No. AB.14017/48/2010-Estt..(RR)
H 18
No.F.No.22015/11/98 Ad. IIIA
SK NAUSAD RAHAMAN & ORS. v. UNION OF INDIA 611
AND ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

“The issue of Inter Commissionerate Transfer has been A
considered by Board and it has been decided that for
the present only 75% portion out of the total DP quota
vacancies should be filled up by Inter Commission
transfer by CCE, Delhi.
2.It has also been decided that a committee may be B
formed which may decide on inter Commissionerate
transfer after considering the matter in totally but
generally on first come first salary basis. The committee
can also consider the hardship cases, like couple cases,
“Medical Emergency Cases” and other cases like “Only
s[o]n separate from parents” on merits.” C
(ii) On 16 January 2003, a circular 19 was issued by the
Department of Revenue to the:
(a) Chief Commissioners of Central Excise;
(b) Chief Commissioners of Customs; and
D
(c) Commissioners of Central Excise/Customs.
The circular notified that the Board had decided that all the
powers which were being exercised by the respective
Commissioners as CCAs would henceforth be exercised
by the respective Chief Commissioners. However, it was
stipulated that there would be no merger or bifurcation of E
the existing cadres and the functions of the each CCA would
be exercised separately and independently by the Chief
Commissioner. Hence, it was stipulated that this in effect
would imply that the independent entity of each cadre shall
remain intact and unchanged. F
(iii) On 19 February 2004, the Department of Revenue
addressed a communication20 to all Chief Commissioners
and Commissioners of Customs and Central Excise amongst
others for the discontinuance of ICTs. The circular noted
that ICTs had been taking place for Group ‘B’, ‘C’ and ‘D’
G
employees on compassionate grounds. However, ICTs
caused administrative difficulties resulting in protracted
litigation. The matter was reviewed by the Board and it
was directed that:
19
No. F.No.A-11013/04/2002-Ad.IV
20
F. No.A.22015/3/2004-ad.IIIA H
612 SUPREME COURT REPORTS [2022] 12 S.C.R.

A “Accordingly, in supersession of all the previous instructions
issued on the subject in the past, it has been decided that
henceforth no inter-Commissionerate transfer shall be
allowed for any Group B, C, D employee. Instead, in
exceptional circumstances depending upon the merits of
each case where it is considered necessary to accept such
B
requests on extreme compassionate grounds, such transfers
shall be allowed on deputation basis for a period of three
years subject to the approval of the transferor and transferee
cadre controlling authorities. Further extension of deputation
period can be made up to one year by the Commissioner
C and for a further period of one year by Chief Commissioners
concerned on mutually agree[d] basis. Such transfers shall
be with the specific condition that no deputation allowance
shall be admissible for deputation period including extended
period, if any. Wherever required, necessary amendments
in Recruitment Rules are under approval and shall be issued
D
subsequently.”
(iv) A circular21 was issued on 27 March 2009 by the CBEC by
which the earlier ban on ICTs was partially relaxed in order
to facilitate the posting of spouses at the same station “in
line with the instructions of the DoPT”. The circular
E specifically referred to the DoPT OMs dated 3 April 1986,
12 June 1997 and 23 August 2004. The circular, insofar as
is material, is extracted below:
“I am directed to refer to the Board’s Circular
F.No.22015/3/2014-Ad.IIIA dated 19.02.2004, as
F modified vide letter dated 09.03.2004, vide which the
inter-Commissionerate Transfers of Groups-B,C and
D officers were banned. Although the term used was
‘Inter-Commissionerate Transfers’, the ban was
actually confined to transfers from one Cadre
G Controlling Authority to another. There was no ban
on transfers amongst the Commissionerates having
common cadre, where no loss of seniority was
involved, as was clarified vide letter dated 09.03.2004
referred to above.
21
H F.No.A.22015/19/2006-Ad.IIIA
SK NAUSAD RAHAMAN & ORS. v. UNION OF INDIA 613
AND ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

2. However, it has been pointed out that the A
instructions of the DoPT (contained in their OM
No.28034/7/86-Estt(A) dated 03.04.1986 as amended
by OM dated 12.06.1997 and 23.08.2004), provide
that “a husband and wife are, as far as possible, and
within the constraints of administrative convenience,
B
posted at the same station”.
3. The Board deliberated upon the issue in its meeting
held on 04.03.2009 and have decided to partially relax
the earlier instructions of the Board as referred to
above, in order to facilitate posting of husband and
wife at the same station in line with the instructions C
of the DoPT. Accordingly, it has now been decided
to permit inter-Commissionerate transfers of Group
B, C and D Officers beyond the Commissionerates
having common cadres, i.e. from one Cadre
Controlling Authority to another, without any loss of D
seniority, subject to the following conditions: -
(a) The transfer/change of cadre shall be permissible
only in cases where the spouse is employed with
either the Central Government or a State Government
or a Public Sector Undertaking of the Central E
Government/ a State Government.
(b) The option for change of cadre must be exercised
within six months of the initial appointment of the
officer, if the officer is married at the time of such
initial appointment. In case of marriage taking place F
subsequent to the initial appointment, the option must
be exercised within six months of the marriage.
Further, as far as the past cases are concerned, the
option must be exercised within six months of the
issue of these instructions.
G
4. The procedure for change of cadre will be same
as stipulated in the Board’s instructions dated
19.02.2004 referred to above i.e. the change of cadre
will take place with the approval of the transferor
and transferee Cadre Controlling Authorities. There
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614 SUPREME COURT REPORTS [2022] 12 S.C.R.

A will be no need to seek approval of the Boards for
this purpose.”
(v) On 27 October 2011, a circular22 was issued by the CBEC
noting that the ban on ICTs which was imposed by the
earlier communication dated 19 February 2004 for Group
B B, C and D employees, was subsequently relaxed in phases
to cover cases involving spouses, compassionate
appointments and physically handicapped employees by
circulars dated 27 March 2009, 29 July 2009 and 9 February
2011. It recorded that such relaxation was allowed without
loss of seniority and subject to specific conditions. By the
C communication, CBEC notified that it had lifted the ban on
ICTs with immediate effect. Para 2 of the circular stipulated
as follows:
“2. On consideration of all aspects in the matter of
ICT, it has been decided by the Board now to lift the
D ban on ICT with immediate effect .Accordingly, any
willing Group ‘B’\‘C’ employee and the erstwhile
Group ‘D’ employee may apply for transfer from
the jurisdiction of one Cadre Controlling Authority
(CCA) to another. CCA subject to availability of
E vacancy and on the following terms & conditions:
i. The concerned two Cadre Controlling Authorities
should agree to the transfer,
ii. The transferee will be placed below all officers
appointed regularly to that pots/grade on the date of
F his/her appointment on transfer basis in terms of Para
3.5 of DOP&T’s G.M. dated 03.07.1986. In other
words, such a transferee will be junior to those
regularly appointed officers prior to his/her transfer.
However, such transferred officer will retain his/her
G eligibility of the parent Commissionerate for his/her
promotion to the next higher grade, etc.
iii. On transfer he/she will not be considered for
promotion in the old Commissionerate.
22
F.No.A.22015/23/2011-Ad.IIIA
H
SK NAUSAD RAHAMAN & ORS. v. UNION OF INDIA 615
AND ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

iv. He/she will not be entitled to any joining time and A
transfer travelling allowance;
v. Under no circumstances, request for ICT should
be entertained till the officer appointed in a particular
Commissionerate/post completes the prescribed
probation period. B
vi. The seniority of the officers who were allowed
ICT earlier by the various Cadre Controlling
Authorities on the basis of Board’s letters
F.No.A.22015/19/2006-Ad.III.A dated 27.03.2009,
F.No. A.22015/11/2008-Ad.III.A dated 29.07.2009 C
and F.No. A.22015/15/2010-Ad.IIIA dated 09.02.2011
shall be fixed as per the present instructions.
vii. Officers who are presently working on deputation
basis from their parent Commissionerate to any other
Commissionerate/ Directorate and are willing to avail D
of the ICT in future will have to revert back to their
parent Commissionerate first and apply afresh for
ICT. The officers who have been continuously on
deputation and have been absorbed on ICT during
the interim period from 19.02.2004 (i.e. the date from
which the ban became effective) till date, their E
seniority will be fixed from the date of their joining
on deputation in the transferred Zone/
Commissionerate.
viii. A written undertaking (in the enclosed format)
to abide by the requisite terms and conditions will be F
obtained from the officers before the transfers are
actually affected.
ix. All pending Court cases where seniority protection/
ICT has been challenged may be handled
appropriately in terms of these instructions and G
necessary compliance furnished to the Board in due
course.”
(vi) On 20 September 2018, CBIC issued a circular (extracted
above earlier in this judgment) stating that:
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616 SUPREME COURT REPORTS [2022] 12 S.C.R.

A (a) RR 2016 contain no provision for recruitment by absorption;
(b) Rule 5 of RR 2016 stipulates that each CCA shall have its
own separate cadre unless otherwise directed by the CBEC;
(c) There isno provision which corresponds to Rule 4(ii) of RR
2002 in Rule 5 of RR 2016;
B (d) Any executive instructions contrary to RR 2016 would be
void;
(e) After the enforcement of RR 2016, there is no enabling
provision for the grant of ICTs;
(f) In exceptional circumstances employees could be
C transferred on a loan basis for a maximum period of three
years extendable by a further period of two years; and
(g) All ICTs in the grade of Inspectors issued on or after 26
December 2016 would be withdrawn and those employees
would be deemed to be on a loan basis.
D C Submissions
12. We have heard Mr Maninder Singh, Ms Vibha Datta Makhija,
Mr PN Ravindran, Mr Narender Hooda and Mr Rana Mukherjee,senior
counsel in support of the appeals and intervention applications and Mr
Rishi Kapoor and Mr Umakant Misra, learned counsel who have adopted
E their submissions. Mr KM Nataraj, Additional Solicitor General 23 has
appeared on behalf of the respondents.
13. Mr Maninder Singh, learned senior counsel has urged the
following submissions:
(i) The Division Bench of the High Court of Kerala has held
that with the non-inclusion of the provisions of Rule 4(ii) of
F
the RR 2002 in RR 2016, ICTs are not permissible. However,
Rule 5 of RR 2016 which stipulates that each CCA will
have a separate cadre, contemplates that the CBEC can
provide otherwise;
(ii) CBEC’s instructions of 27 October 2011 lifted the ban on
G ICTs which was imposed on 19 February 2004;
(iii) The decision by CBEC to lift the ban on ICTs must be
treated as a decision which relaxes the norm that each CCA
will have a separate cadre; and
23
“ASG”
H
SK NAUSAD RAHAMAN & ORS. v. UNION OF INDIA 617
AND ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

(iv) The basic premise of the circular dated 20 September 2018 A
is that there is no provision for recruitment by absorption in
RR 2016. This premise is fallacious because even after the
non-inclusion of Rule 4(ii) of RR 2002 in Rule 5 of RR
2016, the Board has retained its power to issue directions
‘otherwise’ and a circular which had been issued by the
B
Board must be treated as being an exercise of such a power.
14. Ms Vibha Datta Makhija, learned senior counsel has addressed
the court on two broad issues:
(i) Whether RR 2016 place a blanket prohibition on ICTs; and
(ii) Whether the circular dated 20 September 2018 which C
imposes a blanket prohibition on ICTs is violative of the
fundamental rights conferred by Articles 14 and 21 of the
Constitution.
15. Ms Makhija has assailed the blanket prohibition on ICTs insofar
as it relates to applications made on “spousal grounds”. In this backdrop, D
learned senior counsel urged:
(i) In the absence of a specific provision in RR 2016 for ICTs,
the OMs issued by DoPT will fill up the gaps in delegated
legislation. Hence, in the absence of a specific rule to the
contrary, the OMs issued by DoPT will govern the Central E
Government service unless specifically excluded by a
regulatory provision. DoPT has a longstanding policy for
posting of spouses at the same station. While Rule 4(ii) of
RR 2002 contained a specific provision for ICTs, there is
no corresponding provision in RR 2016. The absence of a F
specific provision will not alter the situation;
(ii) ICTs were governed by OMs/circulars of the DoPT and
Department of Revenue. While framing RR 2016, the Board
sent the proposal to DoPT and DoPT approved the non-
inclusion of Rule 4(ii) of RR 2002 on the basis that such a
G
provision is generally not made in the recruitment rules.
From this background, it becomes clear that the non-
inclusion of Rule 4(ii) while framing RR 2016 was allowed
on the premise that no prohibition for ICTs on compassionate
and spousal grounds was required in the proposed rules.
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618 SUPREME COURT REPORTS [2022] 12 S.C.R.

A The circulars of the Board in 2004, 2009 and 2011 would
clearly indicate that ICTs in relation to Group B,C and D
employees have never been the subject matter of
recruitment rules and have fallen in the domain of
administrative instructions. Once the ICTs were governed
by executive instructions, the High Court has erred in
B
coming to the conclusion that the absence of a provision
corresponding to Rule 4(ii) of RR 2002 in RR 2016 would
bar ICTs. Since RR 2016 are silent with respect to ICTs,
such transfers remain within the domain of administrative
instructions;
C (iii) DoPT has issued its circulars in furtherance of the
constitutional object of maintaining equality and women’s
empowerment as embodied in Article 15(3) of the
Constitution;
(iv) In terms of the provisions contained under The Government
D of India (Transaction of Business Rules) 1961, any conflict
between the policy of the DoPT and Department of Revenue
would have to be resolved by giving primacy to the former
on matters of recruitment, service conditions and cadre
management of the central services;
E (v) The circular dated 20 September 2018 was brought into
force without the approval of DoPT and is hence contrary
to The Government of India (Transaction of Business Rules)
1961;
(vi) The circular dated 20 September 2018 banning ICTs violates
F the provisions of Articles 14 and 16(1) of the Constitution
by bringing about discrimination at two levels:
(a) It discriminates between Group ‘A’ and Group ‘B’/
’C’ employees;
(b) It discriminates vis-à-vis other services under the
G
Central Government to which the DoPT circulars
apply;
(vii) The impugned circular results in indirect discrimination and
denies equality of opportunity to women guaranteed under
Articles 15(1) and 16(1) of the Constitution; and
H
SK NAUSAD RAHAMAN & ORS. v. UNION OF INDIA 619
AND ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

(viii) The circular banning ICTs does not satisfy an integrated A
proportionality analysis.
16. Mr Vikas Singh, learned senior counsel urged that the
consequence of the non-inclusion of a provision corresponding to Rule
4(ii) of RR 2002, while framing RR 2016 is that the power to effect
ICTs which was given to the Commissionerate has now been entrusted B
to the Board. Though the power had been taken away from the
Commissionerate level, it continues to vest with the Board.
17. Mr PN Ravindran, learned senior counsel submitted that:
(i) The circular dated 20 September 2018 proceeds on the sole
basis that there is no provision in RR 2016 for ICTs whereas C
ICTs have always been governed by executive instructions;
(ii) Following the decision of the Kerala Central Administrative
Tribunal, a provision for ICTs was issued but it was cancelled
in the course of barely a week; and
D
(iii) The non-inclusion of Rule 4(ii) while framing RR 2016 was
on the ground that such a provision is generally not made in
the recruitment rules.Hence, the non-inclusion of erstwhile
Rule 4(ii) in RR 2016 would be of no practical significance.
18. Mr Narendra Hooda, learned senior counsel has urged that:
E
(i) The circular dated 20 September 2018 ignores that the advice
of DoPT- which led to the non-inclusion of Rule 4(ii)- was
merely that such a stipulation was a surplus age in the
recruitment rules;
(ii) Under RR 2016, 90% of the cadre strength is for direct F
recruitment. Since an ICT is against the direct recruitment
quota, no promotional avenues get affected; and
(iii) Since 1958, ICTs have always been governed by executive
instructions.
19. Mr Rana Mukherjee, learned senior counsel appearing on G
behalf of the intervenors submitted that in the alternative, if this Court
upholds the decision of the High Court, it may at least protect persons
whose transfers have already taken place albeit after RR 2016 were
notified.
H
620 SUPREME COURT REPORTS [2022] 12 S.C.R.

A 20. The arguments urged by Ms Makhija have been adopted by
Mr Rishi Kapoor while Mr Umakant Misra has adopted the arguments
of Mr Maninder Singh.
21. On behalf of the respondents, Mr KM Nataraj, learned ASG
has urged the following submissions:
B (i) No employee can assert a fundamental right or a vested
right to transfer. Transfer as condition of service is always
a matter which is governed by the applicable rules;
(ii) Rule 4 of RR 2002 while stipulating that each
Commissionerate would have a separate cadre contained a
C specific provision in Rule 4(ii), allowing for absorption from
the cadre of one Commissionerate to another
Commissionerate;
(iii) Rule 5 of RR 2016 contains a specific stipulation that there
will be a separate cadre for each CCA;
D
(iv) A cadre means a definite sanctioned strength which is stated
in the separate unit;
(v) In the absence of a specific provision in Rule 5 of RR 2016
to bring a person from one cadre to another cadre by
absorption, there is no legal power to absorb a person from
E
outside the cadre;
(vi) The non-inclusion of Rule 4(ii) when RR 2016 were framed,
was designed to curb a specific mischief.The provision for
ICTs was being abused by employees as, for instance, for
the purpose of seeking a promotion and reverting to the
F
original cadre;
(vii) The entire concept of a cadre and cadre strength would be
negatedif ICTs are permitted in the absence of an enabling
provision such as Rule 4(ii) of the erstwhile RR 2002;
G (viii) DoPT circulars cannot override statutory rules which have
been framed under Article 309 of the Constitution; and
(ix) Providing any kind of transfer including ICTs is a matter of
policy and cannot be claimed as a matter of right.
22. The rival submissions would now fall for analysis.
H
SK NAUSAD RAHAMAN & ORS. v. UNION OF INDIA 621
AND ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

D Analysis A
23. While analyzing the rival submissions, certain basic precepts
of service jurisprudence must be borne in mind.
24. 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 B
has no fundamental right or, for that matter, a vested right to claim a
transfer or posting of their choice.
25. 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 C
employed in the service is subject to the overarching needs of the
administration.
26. 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 requirement of the administration. In this context, Justice JS Verma D
(as the learned Chief Justice then was) speaking for a three-judge Bench
of this Court in Bank of India v. Jagjit Singh Mehta24 held :
“5. There can be no doubt that ordinarily and as far as practicable
the husband and wife who are both employed should be posted at
the same station even if their employers be different. The desirability E
of such a course is obvious. However, this does not mean that
their place of posting should invariably be one of their choice,
even though their preference may be taken into account while
making the decision in accordance with the administrative needs.
In the case of all-India services, the hardship resulting from the
F
two being posted at different stations may be unavoidable at times
particularly when they belong to different services and one of
them cannot be transferred to the place of the other’s posting.
While choosing the career and a particular service, the couple
have to bear in mind this factor and be prepared to face such a
hardship if the administrative needs and transfer policy do not G
permit the posting of both at one place without sacrifice of the
requirements of the administration and needs of other employees.
In such a case the couple have to make their choice at the threshold
between career prospects and family life. After giving preference
24
(1992) 1 SCC 306 H
622 SUPREME COURT REPORTS [2022] 12 S.C.R.

A to the career prospects by accepting such a promotion or any
appointment in an all-India service with the incident of transfer to
any place in India, subordinating the need of the couple living
together at one station, they cannot as of right claim to be relieved
of the ordinary incidents of all-India service and avoid transfer to
a different place on the ground that the spouses thereby would be
B
posted at different places. […] No doubt the guidelines require
the two spouses to be posted at one place as far as practicable,
but that does not enable any spouse to claim such a posting as of
right if the departmental authorities do not consider it feasible.
The only thing required is that the departmental authorities should
C consider this aspect along with the exigencies of administration
and enable the two spouses to live together at one station if it is
possible without any detriment to the administrative needs and
the claim of other employees.”
27. The above principle was cited with approval in Union of India
D v. SL Abbas25 where the Court held that transfer is an incident of service:
“7. Who should be transferred where, is a matter for the
appropriate authority to decide. Unless the order of transfer is
vitiated by mala fides or is made in violation of any statutory
provisions, the court cannot interfere with it. While ordering the
transfer, there is no doubt, the authority must keep in mind the
E guidelines issued by the Government on the subject. Similarly if a
person makes any representation with respect to his transfer, the
appropriate authority must consider the same having regard to
the exigencies of administration. The guidelines say that as far as
possible, husband and wife must be posted at the same place.
F The said guideline however does not confer upon the Government
employee a legally enforceable right.”
28. 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;
G (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.
25
H (1993) 4 SCC 357
SK NAUSAD RAHAMAN & ORS. v. UNION OF INDIA 623
AND ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

Fifth, where there is a conflict between executive instructions A
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.26
B
29. 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.27
C
30. RR 2002 contained in Rule 4a “Special Provision”. Rule 4(i)
envisaged that each Commissionerate shall have its own separate cadre
unless otherwise directed by the CBEC. Rule 4(ii) commenced with
anon-obstante provision in terms of which, the jurisdictional Chief
Commissionerate of Central Excise was empowered to order that any
post in the Commissionerate may be filled up by absorption of persons D
holding the same or comparable post belonging to the cadre of another
Commissionerate under the CBEC. The non-obstante provision was
necessary because Rule 4(i) contained a mandate for each
Commissionerate to have its own separate cadre unless the CBEC
directed otherwise. The plain consequence of each Commissionerate E
having its own cadre was to preclude the appointment of a person
belonging to the cadre of another Commissionerate by way of absorption.
The bar on the absorption of persons from outside the cadre was lifted
as a consequence of Rule 4(ii), which by embodying a non-obstante
provision allowed the jurisdictional Chief Commissionerate to allow a
post in the Commissionerateto be filled by persons holding the same or F
comparable post but belonging to the cadre of another Commissionerate.
31. In RR 2016 as notified, Rule 5 states that each CCA shall
have its own separate cadre, unless otherwise directed by the CBEC.
The ‘Commissionerate’ in the erstwhile Rule 4(ii) was substituted by the
expression “Cadre Controlling Authority” in Rule 5 of RR 2016. The G
clear intent of Rule 5 is that there would be a separate cadre for each
26
Union of India and Others v. Somasundaram Viswanath and Others,
(1989) 1 SCC 175, para 6
27
State of Orissa and Others v. Prasana Kumar Sahoo (2007) 15 SCC 129,
para 12 H
624 SUPREME COURT REPORTS [2022] 12 S.C.R.

A CCA and only CBEC is entrusted with the authority to direct otherwise.
Hence only CBEC could direct the constitution of a joint cadre for more
than one Commissionerate. The enabling power which was conferred
on jurisdictional Chief Commissionerate in Rule 4(ii) of RR 2002 is
conspicuously absent in Rule 5 of RR 2016. The central submission
which has been urged on behalf of the appellant is that since in RR 2016
B
there is no provision corresponding to Rule 4(ii) of RR 2002, there is a
silence on the subject of the absorption of persons belonging to the cadre
of another Commissionerate and this silence or gap can be supplemented
by executive instructions. The executive instructions, it was submitted,
would be those which are embodied in the OMs which have been issued
C by DoPT or the instructions which have been issued by the Department
of Revenue from time to time.
32. There is a fundamental fallacy in the submission which has
been urged on behalf of the appellants. Administrative instructions, it is
well-settled, can supplement rules which are framed under the proviso
D to Article 309 of the Constitution in a manner which does not lead to any
inconsistencies. Executive instructions may fill up the gaps in the rules.
But supplementing the exercise of the rule making power with the aid of
administrative or executive instructions is distinct from taking the aid of
administrative instructions contrary to the express provision or the
necessary intendment of the rules which have been framed under Article
E 309. RR 2016 have been framed under the proviso to Article 309. Rule
5 of RR 2016 contains a specific prescription that each CCA shall have
its own separate cadre.The absence of a provision for filling up a post in
the Commissionerate by absorption of persons belonging to the cadre of
another Commissionerate clearly indicates that the cadre is treated as a
F posting unit and there is no occasion to absorb a person from outside the
cadre who holds a similar or comparable post.
33. In JS Yadav v. State of UP28, a twojudge bench of this Court
observed that the expression ‘cadre’ generally “denotes a strength of
a service or a part of service sanctioned as a separate unit. It also
G includes sanctioned strength with reference to grades in a particular
service. Cadre may also include temporary, supernumerary and
shadow posts created in different grades”. Recently, a three-judge
Bench of this Court in Jarnail Singh v. Lacchmi Narain Gupta29,
28
(2011) 6 SCC 570
29
2022 SCC OnLine SC 96
H
SK NAUSAD RAHAMAN & ORS. v. UNION OF INDIA 625
AND ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

while dealing with the scope of the expression ‘cadre’ referred to various A
judicial pronouncements. The Bench noted:
“24. […] The dispute that arose for consideration of this Court
in Dr. Chakradhar Paswan v. State of Bihar [(1988) 2 SCC
214] relates to the posts of Director and three Deputy Directors
in the Directorate of Indigenous Medicines, Department of Health, B
State of Bihar being grouped together for the purpose of
implementing the policy of reservation under Article 16(4) of the
Constitution of India. […] It was held that the term “cadre” has a
definite legal connotation in service jurisprudence. This Court
referred to Fundamental Rule 9(4) which defines the word “cadre” C
to mean the strength of a service or part of a service sanctioned
as a separate unit. […]
25. […] The meaning of “cadre” fell for consideration of this
Court again in Union of India v. Pushpa Rani [(2008) 9 SCC
242]. “Cadre” in the 1985 edition of the Railway Establishment D
Code is defined as the strength of a service or a part of a service
sanctioned as a separate unit. This Court held that the posts
sanctioned in different grades would constitute independent cadres,
even for the purpose of implementing the roster. The reason for
giving an enlarged meaning to the term “cadre” was that the posts
in the railway establishment are sanctioned with reference to E
grades. Even temporary, work-charged, supernumerary and
shadow posts created in different grades can constitute part of
the cadre.
[…]
F
28. It is clear from the above statutory regime and the law laid
down by this Court that civil posts under the Government are
organised into different services. A service constitutes ‘classes’/
‘groups’ of posts. A ‘class’/‘group’ is further bifurcated into grades.
Though the nomenclature might be different, the structure of
G
services under the Union and the States is similar. According to
the instructions issued by the Union of India, cadres are constituted
for each grade. At the cost of repetition, the Union of India
submitted that there are 3800 cadres in 44 Ministries/Departments.
Fundamental Rule 9(4) defines “cadre” to mean the
H
626 SUPREME COURT REPORTS [2022] 12 S.C.R.

A strength of a service or part of a service sanctioned as a
separate unit. It is the choice of a State to constitute cadres.
The entire service cannot be considered to be a cadre for the
purpose of promotion from one post to a higher post in a different
grade. Promotion is made from one grade to the next higher grade,
in relation to which cadres are constituted. This Court in Dr.
B
Chakradhar Paswan (supra) has categorically stated that the
post of Director and Deputy Director cannot form one cadre. A
cadre is constituted by the Government by taking into account
several factors within its sole discretion.”

C (emphasis supplied)
34. Rule 5 of RR 2016 postulates that each CCA has a separate
cadre and does not contain a provision for bringing in, by way of absorption,
persons from outside the cadre. Inducting persons fromoutside the cadre
by absorption requires a specific provision in the subordinate legislation
D for the simple reason that the concept of a cadre would otherwise militate
against bringing in those outside the cadre. That is the reason why Rule
4(ii) of the erstwhile RR 2002 contained a specific provision to this effect.
That provision has however not been included when RR 2016 were
framed. If the authority entrusted with the power of framing rules under
Article 309 of the Constitution did so on the ground that the provision
E was subject to misuse and was contrary to the interests of the
administration, no employee can assert a vested right to claim an ICT.
35. Another submission which has been urged on behalf of the
appellants is based on The Government of India (Transaction of Business)
Rules 1961, which have been framed pursuant to Article 77(3) of the
F Constitution. Rule 4(4) provides for consultation with the DoPT on
specified matters and reads as follows:
“4. Inter-Departmental Consultations.-
(1) When the subject of a case concerns more than one department,
G no decision be taken or order issued until all such departments
have concurred, or, failing such concurrence, a decision thereon
has been taken by or under the authority of the Cabinet.
Explanation- Every case in which a decision, if taken in one
Department, is likely to affect the transaction of business allotted
H
SK NAUSAD RAHAMAN & ORS. v. UNION OF INDIA 627
AND ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

to another department, shall be deemed to be a case the subject A
of which concerns more than one department.
(2) Unless the case is fully covered by powers to sanction
expenditure or to appropriate or re-appropriate funds, conferred
by any general or special orders made by the Ministry of Finance,
no department shall, without the previous concurrence of the B
Ministry of Finance, issue any orders which may-
(a) involve any abandonment of revenue or involve any expenditure
for which no provision has been made in the appropriation act;
(b) involve any grant of land or assignment of revenue or C
concession, grant, lease or licence of mineral or forest rights or a
right to water power or any easement or privilege in respect of
such concession;
(c) relate to the number or grade of posts, or to the strength of a
service, or to the pay or allowances of Government servants or to D
any other conditions of their service having financial implications;
or
(d) otherwise have a financial bearing whether involving expenditure
or not;
E
Provided that no orders of the nature specified in clause (c) shall
be issued in respect of the Ministry of Finance without the previous
concurrence of the Department of Personnel and Training.
(3) The Ministry of Law shall be consulted on-
F
(a) proposals for legislation;
(b) the making of rules and orders of a general character in the
exercise of a statutory power conferred on the Government; and
(c) the preparation of important contracts to be entered into by
the Government. G

(4) Unless the case is fully covered by a decision or advice
previously given by the Department of Personnel and Training
that Department shall be consulted on all matters involving-
H
628 SUPREME COURT REPORTS [2022] 12 S.C.R.

A (a) the determination of the methods of recruitment and conditions
of service of general application to Government servants in civil
employment; and
(b) the interpretation of the existing orders of general application
relating to such recruitment or conditions of service.
B
(5) Unless the case is fully covered by the instructions issued or
advice given by that Ministry, the Ministry of External Affairs
shall be consulted on all matters affecting India’s external relations.”
In terms of Rule 4(4), the DoPT has to be consulted on the
C determination of the methods of recruitment and conditions of service of
general application to government servants and on the interpretation of
existing orders of general application relating to recruitment or the
conditions of service.
36. The Government of India (Allocation of Business) Rules 1961
D have also been framed under Article 77(3) of the Constitution. Rule 2
envisages that the business of the Government of India shall be transacted
in the Ministries, Departments, Secretariats and Offices specified in the
First Schedule. Under Rule 3, the distribution of subjects is specified in
the Second Schedule. The distribution of subjects to the Department of
Revenue includes:
E
“C. DEPARTMENT OF REVENUE
(RAJASWA VIBHAG)
1. All matters relating to-
F
(a) Central Board of Excise and Customs;
(b) Central Board of Direct Taxes”
37. In other words, all matters which relate to CBEC and CBDT
were assigned to the Department of Revenue. Matters which are assigned
G to DoPT under the Ministry of Personnel, Public Grievances and Pension
include:
“A. DEPARTMENTOF PERSONNEL AND TRAINING
(KARMIK AUR PRASHIKSHAN VIBHAG)
H
SK NAUSAD RAHAMAN & ORS. v. UNION OF INDIA 629
AND ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

I. RECRUITMENT, PROMOTION, AND MORALE A
OF SERVICES
[...]
2. General questions relating to recruitment, promotion and
seniority pertaining to Central Services except Railways
B
Services and services under the control of Department of
Atomic Energy, the erstwhile Department of Electronics,
the Department of Space and the Scientific and Technical
Services under the Department of Defence Research and
Development.
C
[...]
18. Advising Ministries on proper management of various
cadres under their control.
[…]
D
IV. SERVICE CONDITIONS
21. General questions (other than those which have a
financial bearing including Conduct Rules relating to All India
and Union Public Services except in regard to services under
the control of the Department of Railways, the Department E
of Atomic Energy, the erstwhile Department of Electronics
and the Department of Space.)
22. Conditions of service of Central Government employees
(excluding those under the control of the Department of
Railways, the Department of Atomic Energy, the erstwhile F
Department of Electronics and the Department of Space
and the Scientific and Technical personnel under the
Department of Defence Research and Development, other
than those having a financial bearing and in so far as they
raise points of general service interests).
G
23. (a) The administration of all service rules including F.Rs
S.Rs and C.S.Rs (but excluding those relating to Pension
and other retirement benefits) except-
(i) proposals relating to revisions of pay structure of
employees; H
630 SUPREME COURT REPORTS [2022] 12 S.C.R.

A (ii) proposals for revisions of pay scales of Central
Government employees;
(iii) appointment of Pay Commission, processing of
the recommendations and implementation thereof;

B (iv) dearness allowance and other compensatory
allowances and travelling allowances;
(v) any new facility to Government employees by way
of service conditions or fringe benefits which
involve significant recurring financial implications;
C and
(vi) matters relating to amendments to service rules
having a predominantly financial character; […]”
38. Undoubtedly, while all matters pertaining to the CBEC and
D CBDT are under the domain of the Department of Revenue, there has
to be a harmonious construction with the subjects which are assigned to
the DoPT. In fact, the need for a harmonious reading is emphasized, as
we have seen earlier, in Rule 4(4) of The Government of India
(Transaction of Business) Rules 1961, which requires the advice of DoPT
to be sought on methods of recruitment and conditions of service and on
E the interpretation of existing orders relating to recruitment and conditions
of service. The executive instructions which have been issued by the
DoPT cannot however prevail over the specific provisions which are
contained in the rules which have been framed under the proviso to
Article 309 of the Constitution. Faced with this difficulty, the appellants
F have sought to urge that Rule 4(ii) of RR 2002 was not included while
RR 2016 were being framed on the advice of the DoPT on the ground
that such a provision is generally not made in the recruitment rules. This
submission is based on the disclosure made by the Department of
Revenue under the Right to Information Act 2005 on 3 July 2018. The
attachment with the RTI disclosure contains the following tabulation:
G
“4. D/o Revenue has further suggested for following changes in
the draft RRs approved by the Department for which DoPT’s
observations has been mentioned against them:-

H
SK NAUSAD RAHAMAN & ORS. v. UNION OF INDIA 631
AND ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

SI. Proposal DoPT’s observations A
No.
(i) Col. 12 Addition of Asstt. The reasons availabl e in the file for addition of Asstt.
Programmer (DEO Grade D) (PB-2 Programmer (only 5 in No.) is to provide the
GP Rs. 4200) and Steno Gr. I (PB-2 promotion avenue in Ministerial/executive side
GP Rs. 4200) as feeder grade for Insp instead of technical side (p.11/c). No reason has been
(C&E); Insp. (PO) and Insp (Exam) given for addition of Steno Gr.I. As the justifi cation is
not adequate or not given, we may not agree for the B
addition of both posts in the feeder grade.
(ii) Col. 12 The requirement for age limit This was suggested by this Department earlier, But
for appearing in the departmental due to justification given, DoPT agreed while
exam has been done away with approving the proposal for keeping the age limit for
promotion (p.76-83/N of L/F). Now in view of a
Court decision, D/o Revenue has suggested the
proposal. We may agree for the same.
(iii) Note 2 in Col. 12 The requisite It may be mentioned that D/o Revenue has insisted for C
height is being dispensed with for keeping the provision for physical tests and physical
those who have been recruited standards for considering promotion due to the job of
without such criteria Inspector being arduous in nature. As the
circumstances remain same, we may not agree to the
proposal.
(iv) The provision in Rule 4 As such provision is generally not made in the RRs,
(notification part) for describing we may agree. D
Inter-Commissionerate deputation
without deputation allowance has
been suggested for deletion
(v) The col. 7 related to added years of It may be deleted.
service
(vi) Col. 10 (renumbered 9) 2 years of DR and promotees (except those who are
already holding post s in Group B), since probation is
applicable if there is change of Group. E
(vii) Col. 11 (renumbered 10) Col. 11(renumbered 10)
… …
33 1/3 % by promotion 33 1/3 % by promotion through Departmental
Qualifying Exam. Since, Departmental exam for
promotion is either qualifying (not linked to
vacancies) or competitive (linked to vacancies)
Consequential changes in Col. 12 (renumbered 11) F
(emphasis supplied)
39. The above tabulation indicates that the proposal which was
under consideration was the provision for Inter-Commissionerate
deputation without deputation allowance. This was suggested for deletion.
DoPT observed that such a provision is generally not made in the G
recruitment rules and thus, the proposal may be agreed to. But apart
from this, the Department of Revenue did not deem it fit to adopt the
specific provision which was contained in Rule 4(ii) of RR 2002 under
which absorption of persons from other cadres was envisaged at the
Commissionerate level, when Rule 5 of RR 2016 was framed. In the
H
632 SUPREME COURT REPORTS [2022] 12 S.C.R.

A absence of a specific provision to that effect, an employee from outside
the cadre under the control of a CCA cannot claim an ICT based on
executive instructions. The executive instructions which have been issued
by DoPT in the form of OMs will not prevail over RR 2016 which have
been framed under the proviso to Article 309. Similarly, the instructions
which were issued by the Department of Revenue on 27 March 2009,
B
relaxing the ban on ICT, which was imposed on 19 February 2004 and
the subsequent instructions dated 27 October 2011 were issued at the
time when RR 2016 were yet to be framed. These instructions will not
govern or prevail when the regime envisaged under RR 2016 came into
force.
C 40. On behalf of the appellants, reliance was sought to be placed
on the decision of a two judge Bench of this Court in Prabir Banerjee
v. Union of India and Others30. In that case, the Jabalpur Bench of
the Central Administrative Tribunal had been moved for challenging an
order of transfer from Indore to Nagpur on the ground that an inter-
D zonal transfer was prohibited in the Department of Central Excise and
Customs. The petitioner was appointed as an Inspector of Central Excise
and was promoted as a Superintendent in the Bhopal Zone which
comprised the Commissionerates of Bhopal, Indore and Raipur. On 19
February 1994, the Department of Revenue issued instructions for the
discontinuance of ICTs for Group B, C and D employees while stipulating
E that in exceptional circumstances, transfers were allowed on deputation
for a period of three years, extendable by one year on extreme
compassionate grounds. The above circular was amended on 9 March
2004 envisaging that ICTs among Commissionerates having a common
cadre may be allowed to continue as hitherto where there was no loss of
F seniority involved. Thereafter, together with abatch of other officers,
the petitioner was transferred from the Indore Commissionerate to the
Nagpur Commissionerate which was sought to be challenged on the
ground that inter-zonal transfers continued to be proscribed. The Tribunal
dismissed the OA and the High Court disposed of the writ petition, with
permission to the petitioner to submit a representation to the competent
G authority. While the petitioner relied on the prohibitionon inter-zonal
transfers, the Additional Solicitor General appearing on behalf of the
Union of India relied on the instructions of the Board dated 24 August
2004 indicating that pending a decision on the demand for bifurcation of
30
(2007) 8 SCC 793
H
SK NAUSAD RAHAMAN & ORS. v. UNION OF INDIA 633
AND ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

Group B, C cadres relating to Nagpur and Indore Collectorates, it had A
been decided that the cadre control of the two Collectorates would be
distributed between the Collectors of Nagpur Zone and Indore Zone.
The Collector of Central Excise of Nagpur Zone was made the CCA of
Group B and C employees belonging to the Ministerial cadre while the
Collector of Central Excise, Indore was made the CCA in respect of the
B
Group B and C officers in the executive cadres. Since the post of
Superintendent was a Group B post in the executive cadre and in respect
of two Collectorates, the Collector of Central Excise Indore became the
CCA of such employees in the Collectorates. It was in this backdrop,
that this Court held that it was inclined to agree with the stand of the
respondent that while transfer is an incident of service under the Central C
Service Rules, the petitioner had no cause to complain of his transfer
from the Bhopal Zone to the Nagpur Zone as the order of transfer was
issued by the Chief Commissionerate of Central Excise, Bhopal Zone
under the powers vested in him by the Board by its circular dated 16
January 2003. This Court held:
D
“22. No doubt transfer is an incident of service in an all-India
service and under the Central Service Rules the controlling
authority was competent to transfer the petitioner to any place in
India, where it considered expedient to do so. But apart from the
above, we also have to take into consideration the decision of the
Central Board of Excise and Customs in its communication dated E
24-8-1984 by which pending decision on the demand for bifurcation
of Group ‘B’ and ‘C’ cadres relating to Nagpur and Indore
Collectorates the Board took a decision that cadre control of the
said two Collectorates would be distributed between the two
Collectors as indicated in the said communication. As mentioned F
hereinabove, while the Collector of Central Excise, Nagpur, was
made the Cadre Controlling Authority of Group ‘B’ and ‘C’
ministerial cadres, the Collector of Central Excise, Indore was
made the Cadre Controlling Authority of executive cadres of Group
‘B’ and ‘C’. We are alive to the fact that the decision taken by
the Board was an administrative decision, but in the absence of G
any direct rule relating to transfer between two Collectorates under
the Central Board of Excise and Customs, the said administrative
instruction would have to be implemented insofar as inter-
Collectorate transfers between the Nagpur and Indore
Collectorates was concerned. In fact, by subsequent Circular dated H
634 SUPREME COURT REPORTS [2022] 12 S.C.R.

A 16-1-2003 the Board further declared that the Chief Commissioner
of Central Excise/Customs in a Commissionerate would be the
Cadre Controlling Authority up to Group ‘B’-level staff, and its
functions would include monitoring the implementation of the
Board’s instructions with regard to the transfers and equitable
distribution of manpower and material resources between the
B
Commissionerates/zones.”
41. The judgment in Prabir Banerjee (supra) was hence, on
completely different facts.
42. For the above reasons, we have arrived at the conclusion that
C the High Court was justified in coming to the conclusion that:
(i) RR 2002 contained a specific provision for ICTs;
(ii) There is an absence of a provision comparable to Rule 4(ii)
of RR 2002 in RR 2016;

D (iii) On the contrary, Rule 5 of RR 2016 specifically stipulates
that each CCA shall have its own separate cadre unless
directed by the CBEC;
(iv) Any ICT would violate the unique identity of each cadre
envisaged in Rule 5;
E (v) 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 of the Constitution;
(vi) The circular dated 20 September 2018 makesit absolutely
clear that RR 2016 do not have any provision for recruitment
F by absorption and no ICT application could be considered
after the coming into force of RR 2016;
(vii) 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; and
G (viii) The power of judicial review cannot be exercised to interfere
with a policy decision of that nature.
43. The realm of policy making while determining the conditions
of service of its employees is entrusted to the Union for persons belonging
to the Central Civil Services and to the States for persons belonging to
H
SK NAUSAD RAHAMAN & ORS. v. UNION OF INDIA 635
AND ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

their civil services. This Court in the exercise of judicial review cannot A
direct the executive to frame a particular policy. Yet, the legitimacy of a
policy can be assessed on the touchstone of constitutional parameters.
Moreover, short of testing the validity of a policy on constitutional
parameters, judicial review can certainly extend to requiring the State to
take into consideration constitutional values when it frames policies. The
B
State, consistent with the mandate of Part III of the Constitution,must
take into consideration constitutional values while designing its policy in
a manner which enforces and implement those values.
44. There are three areas where the circular dated 20 September
2018 has been challenged on the grounds of constitutionality. The first is
on the ground that the impugned circular bans ICTs with respect to C
different classes of posts within the same service, and henceit is
discriminatory between Group A, B and C employees. We are unable to
accept this ground as there is no material on record to indicate that all
three groups are pari materia with each other. It may be the case that
the instances of abuse of ICTs is higher with respect to employees in D
Group B, as opposed to the other groups. Such decisions are taken keeping
in mind the strength of the service and the needs of the administration.
45. The impugned circular has further been challenged on the
aspect of gender equality and need for equal treatment of disabled
persons. We will briefly deal with both these issues.
E
46. In a recent judgment of a two-judge Bench of this Court in
Lt. Col. Nitisha and Others v. Union of India31, of which one of us
(Justice DY Chandrachud) is a part,the Court emphasized that
discrimination both direct and indirect is contrary to the vision of
substantive equality under Articles 14, 15 and 16 of the Constitution.
Elaborating on the doctrine of substantive equality and its engagement F
with discrimination both in its direct and indirect form, the judgment of
the Court takes due account of ground realities founded on the socio-
economic structure of our society. In Nitisha (supra), this Court held:
“57. Recognizing that certain groups have been subjected to
patterns of discrimination and marginalization, this conception G
provides that the attainment of factual equality is possible only if
we account for these ground realities. This conception eschews
the uncritical adoption of laws and practices that appear neutral
but in fact help to validate and perpetuate an unjust status quo.
31
2021 SCC Online SC 261
H
636 SUPREME COURT REPORTS [2022] 12 S.C.R.

A 58. Indirect discrimination is closely tied to the substantive
conception of equality outlined above. The doctrine of substantive
equality and anti-stereotyping has been a critical evolution of the
Indian constitutional jurisprudence on Article 14 and 15(1). The
spirit of these tenets have been endorsed in a consistent line of
authority by this Court. To illustrate, in Anuj Garg v. Hotel
B
Association of India [(2008) 3 SCC 1],this Court held that laws
premised on sex-based stereotypes are constitutionally
impermissible, in that they are outmoded in content and stifling in
means. The Court further held that no law that ends up
perpetuating the oppression of women could pass scrutiny.
C Barriers that prevent women from enjoying full and equal
citizenship, it was held, must be dismantled, as opposed to being
cited to validate an unjust status quo. In National Legal Services
Authority v. Union of India [(2014) 5 SCC 438], this Court
recognized how the patterns of discrimination and disadvantage
faced by the transgender community and enumerated a series of
D
remedial measures that can be taken for their empowerment.
In Jeeja Ghosh v. Union of India [(2016) 7 SCC 761and Vikash
Kumar v. Union Public Service Commission [2021 SCC OnLine
SC 84] this Court recognized reasonable accommodation as a
substantive equality facilitator.”
E 47. The Court emphasized that discrimination is not always a
function or product of a conscious design or intent. Discrimination may
result by an unconscious bias or a failure to recognize unequal impacts
which are produced by the underlying societal structure. In paragraph
83 of the judgment in Nitisha (supra), the Court held:
F “83. A study of the above cases and scholarly works gives rise to
the following key learnings. First, the doctrine of indirect
discrimination is founded on the compelling insight that
discrimination can often be a function, not of conscious design or
malicious intent, but unconscious/implicit biases or an inability to
recognize how existing structures/institutions, and ways of doing
G things, have the consequence of freezing an unjust status quo. In
order to achieve substantive equality prescribed under the
Constitution, indirect discrimination, even sans discriminatory intent,
must be prohibited.
84. Second, and as a related point, the distinction between direct
H and indirect discrimination can broadly be drawn on the basis of
SK NAUSAD RAHAMAN & ORS. v. UNION OF INDIA 637
AND ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

the former being predicated on intent, while the latter is based on A
effect (US, South Africa, Canada). Alternatively, it can be based
on the fact that the former cannot be justified, while the latter can
(UK). We are of the considered view that the intention effects
distinction is a sound jurisprudential basis on which to distinguish
direct from indirect discrimination. This is for the reason that the
B
most compelling feature of indirect discrimination, in our view, is
the fact that it prohibits conduct, which though not intended to be
discriminatory, has that effect. As the Canadian Supreme Court
put it in Ontario HRC (supra) [Ontario Human Rights
Commission v. Simpsons-Sears [1985] 2 SCR 53], requiring proof
of intention to establish discrimination puts an “insuperable barrier C
in the way of a complainant seeking a remedy.” It is this barrier
that a robust conception of indirect discrimination can enable us
to counteract.”
48. This Court has spoken about the systemic discrimination on
account of gender at the workplace which encapsulates the patriarchal D
construction that permeates all aspects of a woman’s being from the
outset, including reproduction, sexuality and private choices, within an
unjust structure. The OMs which have been issued by DoPT from time
to time recognized that in providing equality and equal opportunity to
women in the workplace of the State, it becomes necessary for the
Government to adopt policies through which it produces substantive E
equality of opportunity as distinct from a formal equality for women in
the workplace. 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 F
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 arein the work place. The DoPT G
OMs dated 3 April 1986, 23 August 2004, 8 July 2009 and 30 September
2009 recognised the impact of underlying social structures which bear
upon the lives of women in the work place and produce disparate outcomes
coupled with or even without an intent to discriminate. The provision
which has been made for spousal posting is in that sense fundamentally H
638 SUPREME COURT REPORTS [2022] 12 S.C.R.

A 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
B
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.
49. The other ground of challenge which has been raised is that
the impugned circular does not take into account the needs of disabled
C persons in the State’s workforce. 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. This obligation has
been elaborated upon in several decisions of this Court including Vikash
Kumar v. Union Public Service Commission and Others32, Avni
D Prakash v. National Testing Agency and Others33 andRavinder
Kumar Dhariwal and Another v. Union of India and Others34. In
Vikash Kumar (supra), this Court observed that:
“63. In the specific context of disability, the principle of reasonable
accommodation postulates that the conditions which exclude the
E disabled from full and effective participation as equal members of
society have to give way to an accommodative society which
accepts difference, respects their needs and facilitates the creation
of an environment in which the societal barriers to disability are
progressively answered. Accommodation implies a positive
obligation to create conditions conducive to the growth and
F fulfilment of the disabled in every aspect of their existence —
whether as students, members of the workplace, participants in
governance or, on a personal plane, in realising the fulfilling privacies
of family life. The accommodation which the law mandates is
“reasonable” because it has to be tailored to the requirements of
G each condition of disability. The expectations which every disabled
person has are unique to the nature of the disability and the
character of the impediments which are encountered as its
consequence.”
32
(2021) 5 SCC 370
33
2021 SCC OnLine SC 1112
34
H 2021 SCC OnLine SC 1293
SK NAUSAD RAHAMAN & ORS. v. UNION OF INDIA 639
AND ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

The formulation of a policy therefore, must take into account the A
mandate which Parliament imposes as an intrinsic element of the right
of the disabled to live with dignity.
50. The State’s interference in the rights of privacy, dignity, and
family life of persons must be proportional. This Court in Akshay N.
Patel v. Reserve Bank of India35, held that the framing of policy must B
meet an integrated proportionality analysis which answers whether the
measure is:
(i) in furtherance of a legitimate aim;
(ii) suitable for achieving the aim;
(iii) necessary for achieving the aim; and C
(iv) adequately balanced with the rights of the individual.
51. The State in the present case has been 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. The State while
formulating a policy for its own employees has to give due consideration D
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 E
to basic constitutional values, including the preservation of family life
which is an incident of Article 21.
52. The circular dated 20 September 2018 has taken into account,
what it describes “exceptional circumstances” such as “extreme
compassionate grounds”. Leaving these categories undefined, the circular F
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 atenure of three
years, extendableby 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 G
basis. Whether such a provision should be suitably enhanced to specifically
include cases involving
(i) postings of spouses;
35
2021 SCC OnLine SC 1180 H
640 SUPREME COURT REPORTS [2022] 12 S.C.R.

A (ii) disabled persons; or
(iii) compassionate transfers, is a matter which should be
considered at a policy level by the Board.
53. In considering whether any modification of the policy is
necessary, they must bear in mind the need for a proportional relationship
B 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
C 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 Constitutionare duly protected. The appeals
shall be disposed of in the above terms.
D
54. Pending application(s), if any, stand disposed of.

Divya Pandey Appeals disposed of.
(Assisted by : Roopanshi Virang, LCRA)

E

F

G

H