Darshan Singh Solanki vs. Union Of INDIA

Held

The Court held that the transfer of the petitioner from Vadodara to Jaipur in 2017 was contrary to the Central Excise Customs Commissionerate Inspector (Central Excise, Preventive Officer, and Examiner) Group-B Post 2016 rules, which prohibited permanent inter-commissionerate transfers. Consequently, the transfer and all subsequent actions, including the assignment of seniority, were void ab initio. Therefore, the decision of the respondents to send the petitioner back to his parent zone (Vadodara) in light of the circular dated 20.09.2018 was upheld. The Court noted that while the Supreme Court in SK Nausad Rahman & Ors. upheld the circular's validity, it also left it open for the respondents to revisit the policy to accommodate spouses, the disabled, and compassionate grounds. However, the Court found no mandamus issued by the Supreme Court to amend the policy. The Court acknowledged the petitioner's submission regarding the restoration of his seniority and consequential benefits in his parent zone, considering it an equitable consideration as he had not benefited from fraud or misrepresentation. The Court directed the authorities to consider the petitioner's representation for restoration of his seniority and all consequential benefits, including promotion, as if he had continued in his parent zone.

Facts

The petitioner, Darshan Singh Solanki, was initially appointed as an Inspector in the Central Board of Excise and Customs (CBEC) and posted in Vadodara. His wife was employed as a Teacher in Rajasthan. A circular dated 27.10.2011 allowed inter-commissionerate transfers based on spouse's posting. The petitioner was transferred to Jaipur zone in 2017, with seniority assigned in 2018. A subsequent circular dated 20.09.2018 withdrew the earlier one, stating that permanent inter-commissionerate transfers were no longer permissible under the 2016 rules. This circular was upheld by the Supreme Court in SK Nausad Rahman & Ors. Vs. Union of India & Ors. Consequently, the petitioner was sent back to his parent zone, Vadodara. His representation to remain in Jaipur was rejected, leading to an Original Application before the Tribunal, which was dismissed. The petitioner then filed a writ petition before the High Court challenging the Tribunal's order.

Key Issues

1. Whether the petitioner had a vested right to remain in the Jaipur zone, making the circular dated 20.09.2018 inapplicable to him, given his permanent transfer and assignment of seniority based on the circular dated 27.10.2011? 2. Whether the circular dated 20.09.2018, which withdrew the facility of permanent inter-commissionerate transfers, could be operated retrospectively to divest the petitioner of his acquired status? 3. Whether the respondents were obligated to consider the petitioner's representation for continued posting in Jaipur on grounds of his spouse being employed in Rajasthan, despite the Supreme Court upholding the validity of the circular dated 20.09.2018? Petitioner's arguments: The petitioner contended that his permanent transfer and seniority assignment created a vested right that could not be taken away by the subsequent circular, which was being applied retrospectively. He argued that the Supreme Court's observations in SK Nausad Rahman & Ors. required the respondents to modify policies to accommodate deserving cases, including those with spouses in other zones. He also argued that circulars are not law and there is scope for consideration of employees' adjustment, and that his seniority should be restored if he had to return to his parent zone. Respondents' arguments: The respondents argued that once the circular dated 20.09.2018 was upheld by the Supreme Court, it had to be applied literally, leaving no discretion. They asserted that clause (6) of the circular mandated re-transfer to the parent zone after a maximum of five years. They also argued that the petitioner's transfer in 2017 was in contravention of the 2016 rules, rendering the transfer and subsequent seniority assessment void ab initio.