Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL & THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 24TH DAY OF MAY 2024 / 3RD JYAISHTA, 1946 OP (CAT) NO. 89 OF 2024 AGAINST THE ORDER/JUDGMENT DATED 21.05.2024 IN OA NO.263 OF 2024 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH PETITIONER/APPLICANT:
SUKANYA.A.S., AGED 42 YEARS W/O NAJMUDEEN S.M., EXECUTIVE ASSISTANT, OFFICE OF THE COMMISSIONER OF CENTRAL GOODS AND SERVICE TAX, AND CENTRAL EXCISE, THIRUVANANTHAPURAM - 695 001 RESIDING AT "NEEHARAM" NO. T C 32/2437 -1, VETTIKONAM, VAZHAYILA, PEROORKADA, THIRUVANANTHAPURAM, PIN - 695013 BY ADVS.
T.C.GOVINDASWAMY KALA T.GOPI KAILESH T. GOPI NISHITHA BALACHANDRAN RAHUL R.
RESPONDENTS/RESPONDENTS:
1 UNION OF INDIA REPRESENTED BY ITS SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NEW DELHI, PIN - 110001 2 THE CHAIRMAN THE CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS, (GOVERNMENT OF INDIA), 5TH FLOOR, HUDCO VISHALA BUILDING, BIKAJI CAMA PLACE, NEW DELHI, PIN - 110022 3 THE CHIEF COMMISSIONER OF CENTRAL EXCISE CUSTOMS AND SERVICE TAX, C.R.BUILDING, I.S.PRESS ROAD, KOCHI, PIN - 682018 4 THE COMMISSIONER OF CENTRAL GOODS & SERVICES TAX CENTRAL EXCISE, PRESS CLUB ROAD, STATUE, THIRUVANANTHAPURAM, PIN - 695001 5 THE PRINCIPAL CHIEF COMMISSIONER OF GST (GOVERNMENT OF INDIA) NO. 26/1 MG ROAD, NUNGAMBAKKAM, CHENNAI, PIN - 600034 THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 24.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (CAT) NO. 89 OF 2024 2 AMIT RAWAL & EASWARAN S., JJ.
------------------------------------ OP (CAT) No.89 of 2024 ------------------------------------- Dated this the 24th day of May, 2024 J U D G M E N T Easwaran, J.
This matter mentioned for urgent motion by Sri.T.C.Govindaswamy. Permission granted. The matter taken on board.
2.
The petitioner/applicant assails Ext.P6 order dated 21.5.2024 of the Central Administrative Tribunal, Ernakulam Bench vacating the interim order granted in her favour on 24.4.2024.
3.
The petitioner while working as Executive Assistant in Level-6 of the Pay Matrix under the Commissionerate of Central Goods and Services Tax was issued with Annexure-A1 order dated 22.4.2024. By the said order, the petitioner was sought to be relieved from the post of Executive Assistant to her parent Zone in compliance with the directions issued by the
OP (CAT) NO. 89 OF 2024 3 Board vide letter dated 22.4.2022. Challenging the order, the petitioner approached the Central Administrative Tribunal, Ernakulam Bench with the present Original Application.
4.
The contentions, in brief, are as follows:
On 31.10.2012, the petitioner commenced her service under the Principal Chief Commissioner of GST, Chennai Zone. While so, the petitioner was promoted as Senior Tax Assistant on 14.10.2015. Thereafter, a new service called as Executive Assistant was created by amalgamation of different cadres like Senior Tax Assistants, etc. and new Recruitment Rules came into effect on 28.09.2015. Subsequent to that, willingness of the applicant was sought for an eventual transfer on spouse ground and other domestic problems. The applicant granted NOC by the 5th respondent as per Annexure-A5 and later by Annexure-A6 order dated 06.06.2017, the applicant/petitioner was transferred as Executive Assistant under the Cochin Zone.
Later by Annexure-A1 order, which was impugned in the Original Application, the benefit was withdrawn and there was a
OP (CAT) NO. 89 OF 2024 4 suggestion to repatriate the applicant/petitioner to the parent zone. The relief sought for before the Central Administrative Tribunal was to set aside Annexure-A1 and allow the petitioner to continue under the 3rd and 4th respondents, as if Annexure- A1 was not issued.
5.
The Central Administrative Tribunal, Ernakulam Bench on 24.4.2024 granted an interim order of stay of operation of Annexure-A1 order in the Original Application.
6.
The respondents therein appeared and filed their reply statement and sought for vacation of the interim order granted in favour of the petitioner. On consideration of materials on record and the pleadings of respective parties, the Central Administrative Tribunal, Ernakulam Bench by Ext.P6 order dated 21.5.2024 vacated the interim order granted in favour of the petitioner. This order is impugned in the present Original Petition.
7.
We have heard Sri.T.C.Govindaswamy assisted by Smt.Kala T.Gopi appearing on behalf of the petitioner/applicant.
OP (CAT) NO. 89 OF 2024 5 8.
In the nature of the order that we intend to pass, we do not deem it appropriate to call the respondents to answer the claim of the petitioner/applicant. Hence, we decline to issue to notice in this Original Petition for the reasons to be discussed below.
9. Learned counsel appearing for the petitioner would submit that the order of the Tribunal causes severe hardship to the petitioner, especially when the petitioner has to take care of her blind father and if in the meantime, during the pendency of the Original Application, if she is repatriated to the Chennai Zone, untoward hardship will be caused. Therefore, it is her specific case that when pleadings were completed before the Tribunal, there was no rhyme or reason as to why the Tribunal should have vacated the interim order and instead, considered the contentions in the main Original Application and should have proceeded to pass final orders. On merits of the claim, Sri.T.C.Govindaswamy contended that without withdrawing
OP (CAT) NO. 89 OF 2024 6 Annexure-A6 order, the respondents could not have issued Annexure-A1 order.
10.
However, we cannot agree with the submissions of Sri.T.C.Govindaswamy, learned counsel appearing for the petitioner. It is now settled law that transfer is an incidence of service. The petitioner was granted some exemptions/ concessions and that is precisely the reason why Annexure-A6 order was issued. The Tribunal has taken note of the fact that the Hon’ble Supreme Court in S.K.Nausad Rahaman & Ors.
v. Union of India & Ors. [AIR 2022 SC 1494] has upheld the decision of the High Court of Kerala holding that the Recruitment Rules of 2016 did not contain any provision for inter-Commissionerate transfer. It must be noted that the Apex Court had left open to the Board to re-visit the policy to accommodate the posting of spouses, needs of the disabled and compassionate grounds. While deciding to discontinue the interim order granted in the favour of the petitioner, the Central Administrative Tribunal also took note of a Bench
OP (CAT) NO. 89 OF 2024 7 decision of this Court in OP(CAT) No.173/2018. It is pertinent to note that the petitioner was working in Cochin Zone since 19.06.2017 and in the absence of any specific absorption clause in the Recruitment Rules for the cadre of Executive Assistant and also for claiming inter-Commissionerate transfer, the Tribunal was of the considered view that the interim order cannot be continued.
11.
On a contrary, when this fact was brought to the notice of the learned counsel for the petitioner, he brought to our notice Annexure-A3, which is the Central Excise and Customs Department, Executive Assistant (Group-B, Non- Gazetted posts) Recruitment Rules, 2015 and persuaded us to take a different view, since what was considered in OP(CAT) No.173/2018 was the Central Excise and Land Customs Department Inspector (Group-C posts) Recruitment Rules, 2002, which was later amended in the year 2016. However, we are not impressed by the aforesaid argument. Irrespective as to whether the Recruitment Rules of 2015 or that of 2016,
OP (CAT) NO. 89 OF 2024 8 grants a concession for inter-Commissionerate transfer, the petitioner cannot aspire to continue under the Cochin Zone in perpetuity. As we have already held that transfer is an incidence of service, as and when the Department decides to repatriate the petitioner to her parent zone, she will have to necessarily follow the said instructions. Therefore, in our considered view, there is no illegality or impropriety in the order of the Tribunal in vacating the interim order granted on 24.4.2024. Therefore, we are not inclined to interfere with Ext.P6 order dated 21.5.2024. Accordingly, the Original Petition fails and the same is dismissed.
However, notwithstanding what we held as above, the same was only for the purpose of deciding as to whether there is any illegality or impropriety in the order passed by the Central Administrative Tribunal vacating the interim order. In other words, this judgment of ours shall not be construed as deciding the claim of the petitioner in the Original Application on merits.
Therefore, while dismissing this Original Petition, we make it
OP (CAT) NO. 89 OF 2024 9 clear that the Tribunal will be free to decide the claim in the Original Application, untrammelled by any of our observations, and also direct the Central Administrative Tribunal, Ernakulam Bench for an expeditious disposal of the Original Application untrammelled by the observations contained in this judgment.
The Original Petition is thus dismissed. No order as to costs.
Sd/-
AMIT RAWAL JUDGE Sd/- EASWARAN S.
JUDGE jg
OP (CAT) NO. 89 OF 2024 10 APPENDIX OF OP (CAT) 89/2024 PETITIONER ANNEXURES Exhibit-P1 A TRUE COPY OF THE O.A.NO.180/263/2024 DATED 24.04.2024 ALONG WITH ITS ANNEXURES FILED BEFORE LEARNED C.A.T., ERNAKULAM BENCH.
Annexure-A1 A
TRUE
COPY
OF
THE
ORDER
NO.
GCCO/II/(39)/26/2021-ADMN DATED 22.04.2024, ISSUED ON BEHALF OF THE THIRD RESPONDENT.
Annexure-A2 A TRUE COPY OF LETTER NO.C.NO.11/3/35/2015- CCA(ESTT)-ICT DATED 14.10.2015, ISSUED FROM THE OFFICE OF THE 5TH RESPONDENT.
Annexure-A3 A TRUE COPY OF THE GOVERNMENT OF INDIA, MINISTRY OF FINANCE GSR NO.741(E) DATED 28.09.2015.
Annexure-A4 TRUE COPY OF THE ORDER BEARING NO.43/2017 DATED 03.05.2017, ISSUED BY THE 5TH RESPONDENT.
Annexure-A5 A TRUE COPY OF THE 5 LETTER BEARING NO.II/03/09/2016-CCA(ESTT)-ICT,
DATED 08.05.2017, ISSUED BY THE RESPONDENT.
Annexure-A6 A TRUE COPY OF THE ORDER BEARING NO.II/3/21/2017-ESTT DATED 06.06.2017, ISSUED BY THE THIRD RESPONDENT.
Annexure-A7 A TRUE COPY OF THE LETTER BEARING F.NO.A.32012/18/2019-AD.III-A DATED 22.04.2022, ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT.
Annexure-A8 A TRUE COPY OF THE REPRESENTATION DATED 27.04.2022 ADDRESSED TO THE 4TH RESPONDENT.
Annexure-A9 A TRUE COPY OF THE REPRESENTATION DATED 27.04.2022 ADDRESSED TO THE 2ND RESPONDENT.
Annexure-A10 A TRUE COPY OF THE ORDERS ISSUED BY THE SECOND RESPONDENT UNDER F.NO.A.22015/117/2016-AD.III.A DATED 02.01.2017.
Annexure-R1(a) TRUE COPY OF CIRCULAR F.NO.A-22015/117/2016- AD.IIIA DATED 20.09.2018 ISSUED FROM THE OFFICE OF THE 1ST RESPONDENT.
Annexure-R1(b) TRUE COPY OF CLARIFICATION NO.02/2021 DATED 15.01.2021 ISSUED FROM THE OFFICE OF THE 1ST RESPONDENT.
Annexure-R1(c) TRUE COPY OF JUDGEMENT DATED 10.10.2019 IN OP(CAT) NO.198 OF 2019 AND CONNECTED CASES.
OP (CAT) NO. 89 OF 2024 11 Annexure-R1(d) TRUE COPY OF LETTER F.NO.22015/117/2016-AD.III A-PART(1) DATED 07.08.2023 ISSUED FROM THE OFFICE OF 1ST RESPONDENT-BOARD.
Exhibit-P2 A TRUE COPY OF THE INTERIM ORDER IN O.A.NO.180/263/2024 DATED 24.04.2024 RENDERED BY THE LEARNED CAT, ERNAKULAM BENCH.
Exhibit-P3 A TRUE COPY OF THE INTERIM ORDER IN O.A.NO.180/263/2024 DATED 02.05.2024 RENDERED BY THE LEARNED CAT, ERNAKULAM BENCH.
Exhibit-P4 A TRUE COPY OF THE OBJECTION TO THE PRAYER FOR INTERIM RELIEF FILED BY THE RESPONDENTS DATED 01.05.2024 Exhibit-P5 A TRUE COPY OF THE REJOINDER TO THE OBJECTIONS FILED AGAINST THE PRAYER FOR INTERIM RELIEF, DATED 06.05.2024 Exhibit-P6 A TRUE COPY OF THE ORDER OF THE LEARNED CAT, ERNAKULAM BENCH IN O.A.NO.180/263/2024 DATED 21.05.2024 VACATING THE INTERIM ORDER.