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The Supreme Court has remarked that 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 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", observed a bench of Justices DY Chandrachud and Vikram Nath.

With this view the Court requested the Union of India to revisit its policy relating to transfers in the tax department.

A challenge was made to the orders of the Central Administrative Tribunal on the issue of the withdrawal of Inter-Commissionerate Transfers(ICT).

On September 20, 2018, the CBIC issued a circular stating that since Central Excise and Customs Commissionerates Inspector (Central Excise, Preventive Officer and Examiner) Group ‘B’ Posts Recruitment Rules 2016 do not contain any provision for recruitment by absorption, no application for ICTs could be considered after the enforcement of those rules.

Inspectors of the Central Excise and Land Customs or, the Goods and Services Tax Administration, who were allocated to different Cadre Controlling Authorities (CCAs) had challenged this circular before the CAT which upheld the challenge.

While hearing a challenge to the said withdrawal, the Kerala High Court reversed the decision of the Tribunal and came to the conclusion that the Recruitment Rules 2016 do not contain any provision for ICTs and, on the contrary, stipulate that each CCA will have its own separate cadre, unless otherwise directed by the Central Board of Excise and Customs.

The High Court further held that ICTs would violate the unique identity of each cadre envisaged under Rule 5 of Recruitment Rules 2016 and hence the circular withdrawing ICTs is not invalid.

While agreeing with the High Court's decision, the top court urged the Union government to revisit the policy to accommodate posting of spouses, the needs of the disabled and compassionate grounds.

Noting that the impugned circular was also challenged on the aspect of gender equality and need for equal treatment of disabled persons, the Court said,

"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 which operate to restrict access to the workplace but equally those which continue to operate once a woman has gained access to the workplace."

Referring to the OMs issued by DoPT from time to time recognizing that in providing equality and equal opportunity to women in the workplace of the State, the Court held that it becomes necessary for the Government to adopt policies through which it produces substantive equality of opportunity as distinct from formal equality for women in the workplace.

The bench thus opined that the State’s interference in the rights of privacy, dignity, and family life of persons must be proportional.

As per the impugned circular dated September 20, 2018 the Court found that it described “exceptional circumstances” such as “extreme compassionate grounds”.

Leaving these categories undefined, the Court found that the circular 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 a tenure of three years, extendable by a further period of two years.

It was thus prompted to say that such a provision should be suitably enhanced to specifically include cases involving postings of spouses; disabled persons; or compassionate transfers, was a matter which should be considered at a policy level by the Board. 

While disposing of the appeal, the Court said,

"...., we leave 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 Constitution are duly protected."

Cause Title: SK Nausad Rahaman & Ors. vs Union of India and Ors.