Employee has no fundamental right to posting or transfer but State should consider ‘family life’ while crafting policy: Supreme Court

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The Supreme Court held on Thursday that while crafting policy, the State cannot be oblivious to basic constitutional values, including the preservation of family life which is a facet of Article 21 [SK Nausad Rahaman v Union of India].

A Bench of Justices DY Chandrachud, Surya Kant and Vikram Nath, however, emphasised that an employee has no fundamental right or, for that matter, a vested right to claim a transfer or posting of his or her choice.

It said that executive instructions and administrative directions concerning transfers and postings did not confer an indefeasible right on an individual to claim the same.

However, a policy governing the same 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, the Court stated.

“How a particular policy should be modulated to take into account the necessities of maintaining family life may be left at the threshold to be determined by the State. In crafting its policy however the State cannot be heard to say that it will be oblivious to basic constitutional values, including the preservation of family life which is an incident of Article 21,” the judgment said.

The Bench observed in this regard that spouse postings were subject to the requirement of administration.

The top court was hearing an appeal against a decision of the Kerala High Court.

The Kerala High Court had upheld the validity of a circular by the Central Board of Indirect Taxes and Customs which provided that no application for Inter Commissionerate Transfers (ICTs) would be considered after the enforcement of Recruitment Rules since they did not contain any provision for recruitment by absorption.

The circular, however, allowed that in exceptional circumstances and on extreme compassionate grounds, such transfers may be allowed on a ‘case to case basis’ keeping in view of administrative requirements.

The validity of the circular was challenged before the Central Administrative Tribunal, and the challenge was upheld.

The High Court reversed the decision of the CAT, resulting in the present appeal before the Supreme Court.

Appellant’s contentions
The appellants, among other grounds, assailed the blanket prohibition on ICTs particularly relating to applications made on “spousal grounds”.

In this regard, they argued that the circular resulted in indirect discrimination, and denied equality of opportunity to women guaranteed under Articles 15(1) and 16(1) of the Constitution.

They also claimed the circular was discriminatory between Group A, B and C employees since it banned ICTs with respect to different classes of posts within the same service.

Respondent’s contentions
The respondents said that no employee could assert a fundamental right or a vested right to transfer since transfer as condition of service was always a matter which is governed by the applicable rules.

It was their stand that providing any kind of transfer, including ICTs was a matter of policy and could not be claimed as a matter of right.

They contended that circulars cannot override statutory rules framed under Article 309 of the Constitution.

Court’s findings
After hearing both sides, the Court drew attention to the principle that where there arose a conflict between executive instructions and rules framed under Article 309, the rules must prevail.

“A policy decision taken in terms of the power conferred under Article 73 of the Constitution on the Union and Article 162 on the States is subservient to the recruitment rules that have been framed under a legislative enactment or the rules under the proviso to Article 309 of the Constitution,” the Court said.

Discussing the specific facts of the case, the Court held that no employee could assert a vested right to claim an ICT when the authority entrusted with the power of framing rules under Article 309 of the Constitution excluded the specific provision that allowed it.

“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 Court made it clear.

Dealing with the contention of gender discrimination and discrimination against people with disabilities (PwD), the Court remarked that the apex court had spoken previously about systemic discrimination on account of gender at the workplace.

“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 Bench noted in this context.

Additionally, discussing the State’s responsibility to consider parliamentary mandate to ensure PwDs live with dignity, the Court said, “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.”

Thus, the Bench concluded that while formulating a policy for its own employees, the State must give due consideration to the importance of protecting family life as an element of the dignity of the person and a postulate of privacy.

With this, the Court upheld the order of the Kerala High Court.

It, however, kept it open for the State to revisit its policy of transfers and postings so as to “accommodate posting of spouses, the needs of the disabled and compassionate grounds.”

Senior Advocates Maninder Singh, Vibha Datta Makhija, PN Ravindran, Narender Hooda and Rana Mukherjee, with advocates Rishi Kapoor and Umakant Misra appeared for the petitioners.

Additional Solicitor General KM Nataraj appeared on behalf of the respondents.

Read Judgment here:

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