2015 (9) TMI 918 - HC - Indian Laws

Court rules repatriation of petitioner to Chennai unlawful, upholds stay in Delhi post. Guidelines valid, clarifications not retroactive.

R. JAYASHREE Versus UNION OF INDIA

R. JAYASHREE Versus UNION OF INDIA - 2015 (321) E.L.T. 251 (Del.) Issues Involved:1. Validity of the petitioner's repatriation to Chennai.2. Whether the period spent by the petitioner in Delhi could be treated as on deputation basis.3. Applicability of the 2011 CBEC circular and its subsequent clarification in 2012.4. Compliance with the DoPT guidelines regarding spousal posting and consultation.Issue-wise Detailed Analysis:1. Validity of the petitioner's repatriation to Chennai:The petitioner challenged the Central Administrative Tribunal (CAT) judgment which upheld her repatriation to Chennai. The petitioner argued that the CAT's judgment unduly focused on the question of seniority, which she had conceded, rather than the validity of her transfer. The petitioner was initially transferred to Delhi in 2009 under the CBEC's policy that allowed Inter-Commissionerate Transfers (ICT) on spousal grounds without loss of seniority. However, the CBEC's 2011 circular lifted the ban on ICTs but stipulated that transferees would lose seniority. The petitioner's repatriation was ordered in 2012 based on a clarification that the 2011 circular did not apply to Group B Gazetted officers, which included her post. The High Court found that the petitioner's transfer in 2009 was valid under the then-existing guidelines, and the subsequent 2012 clarification could not retroactively invalidate her transfer. Therefore, the repatriation order was deemed unlawful.2. Whether the period spent by the petitioner in Delhi could be treated as on deputation basis:The petitioner contended that her transfer order did not specify that it was on a deputation basis, nor did it mention any deputation period. The High Court noted that a deputation requires consent from both the lending and borrowing departments, a deputation allowance, and a specified period, none of which were present in the petitioner's case. The petitioner's order of ICT stated that she would lose her lien in the original post after two years, indicating a permanent transfer rather than a deputation. The High Court concluded that treating her period in Delhi as deputation was invalid.3. Applicability of the 2011 CBEC circular and its subsequent clarification in 2012:The 2011 CBEC circular allowed ICTs but stipulated a loss of seniority. The 2012 clarification stated that the 2011 circular did not apply to Group B Gazetted officers. The High Court found that the petitioner's transfer in 2009 was made under the guidelines prevailing at that time, which did not disqualify her from seeking ICT. The High Court held that a subsequent clarification could not retroactively affect a right that had already vested in the petitioner. Therefore, the 2012 clarification could not be used to justify her repatriation.4. Compliance with the DoPT guidelines regarding spousal posting and consultation:The petitioner argued that her repatriation violated the DoPT's guidelines mandating spousal postings at the same station. Additionally, the repatriation order was issued without consulting the DoPT, contrary to the CAT and High Court's previous directions. The High Court observed that the CBEC's authority to frame guidelines remained intact except for decisions on seniority, which required consultation with the DoPT. Since the petitioner's transfer was in line with the existing CBEC guidelines and the DoPT's spousal posting policy, the repatriation order was found to be in violation of these guidelines.Conclusion:The High Court set aside the CAT's impugned order and quashed the repatriation order transferring the petitioner back to Chennai. The writ petition was allowed, affirming the petitioner's right to remain in her transferred post in Delhi.