TaxTMI 
TaxTMI 
2015 (9) TMI 918
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....09, the Department of Personnel and Training (''DoPT'') stipulated that spouses were to be orindarily posted at the same station. By way of a circular by the Central Board of Excise and Customs (''CBEC'') dated 19-2-2004 (''the 2004 circular''), no Inter-Commissionerate Transfer (''ICT'') was to be allowed for any Group B, C and D employees from the date of entry into force of the circular. The circular stipulated that in exceptional circumstances where acceptance of such a transfer request was necessitated on compassionate grounds, such transfer would be on deputation basis for a period of 3 years, extendible by a further period of 2 years. By another CBEC circular dated 27-3-2009 (''the 2009 circular''), the 2004 circular's instructions were partially relaxed, to facilitate the posting of husband and wife in line with the instruction in the OM of 3-4-1986. As a consequence, even Group B, C and D officers were to be permitted ICT, without loss of seniority. This circular was further clarified in another circular of 7-8-2009 by the CBEC, stating that a request for ICT on the spouse ground without loss of seniority could also be considered against the promotion quota vacancies, as i....
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....d below/junior to all officers appointed regularly to that post/grade to which he/she was transferred, on the date of his/her appointment. However, the transferee would retain eligibility in the parent Commissionerate for promotion. The seniority of officers, who were allowed ICT by the 2009 circular, inter alia, was to be fixed in accordance with this circular. Officers who were on deputation at other Commissionerates would have to revert to the parent Commissionerates first and apply for ICT, afresh. 6. On 3-2-2012, purportedly in accordance with the July 2011 CAT order, the order of this Court and the 2011 circular lifting the ban on ICTs, the second respondent repatriated the petitioner from Delhi back to the Commissionerate, Chennai and her ICT (issued by the order of 30-9-2009) was cancelled, by Establishment Order no. 29/2012 issued on 3-2-2012 by an order dated 3-2-2012 (''repatriation order''). She was also informed that the period during which she served in Delhi would be treated as on deputation basis. The CBEC also issued a circular dated 15-2-2012 clarified that its 2011 circular which lifted the ban on ICTs was applicable only to Group B (non-Gazetted), Group C ....
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.... to her parent zone. Pertinently, that the petitioner was on Reputation was not even the case of the respondent before the CAT. The petitioner also submits that a deputation can be allowed, by first principles, only when the lending and the borrowing departments consent to the same, and along with an entitlement to deputation allowance. The order must specifically state that the transfer is on deputation basis and must specify the period at the end of which the deputationist is to be repatriated to the parent cadre. Deputations, moreover, do not require any discussion on retention of lien in the order, whereas the petitioner's order of ICT of 30-9-2009 states that she retains her lien in the old charge for a period of 2 years from her transfer, after which she will have no right to be repatriated to her old charge. 9. The petitioners contend that there is no legal basis for the repatriation order, and that it is contrary to the DoPT OM of 3-4-1986. Moreover, the repatriation order violated both the July 2011 CAT order as well as the order of the Delhi High Court in that the CBEC did not consult the DoPT. Finally, the petitioner submits that the repatriation order was prematur....
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....hat the terms of the prevailing 2011 circular would apply and that there would be no protection of seniority. Having regard to these circumstances, the settled position, therefore, was that the transfer of the petitioner made as far back as in September 2009 attained finality, save and except for the issue of seniority. The terms of the transfer order, especially paras 2 and 3 even clarified that she would lose her lien in the original post, i.e. the Commissionerate at Chennai after two years of service in the place of her transfer and that any request for repatriation beyond two years, to Chennai would not be entertained. 14. In such circumstances, the CAT's impugned order, based upon its logic that the subsequent clarification dated 15-2-2012 (limiting the applicability of the 2011 circular to non-gazetted Group B employees) merged with the 2011 circular, is untenable, to put it mildly. There is not and cannot be any dispute that at the time of ICT of the petitioner, way back in 2009, no such restriction prevailed. The only controversy which engaged the attention of the Ernakulam Bench and subsequently of the Principal Bench of the CAT was with respect to seniority, i.e. wh....