Latest judgement S K Nausasd Rahaman vs Union of India clearly the all doubts about the transfer and posting law in central government departments .
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”. 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 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 in the present case and is hence extracted below:
8 F. No. A-22015/117/2016-Ad.IIIA dated 20 September 2018
PART A
7
“CIRCULAR
Subject: Instructions in respect of Inter Commissionerate
Transfer (ICT) in the light of new Recruitment Rules,
2016- regarding.
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″
- 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: –
(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 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 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.
“Posting of husband & wife at the same station.
The Govt. of India has issued detailed instructions to its
offices to ensure the posting of the husband and wife at 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 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.