Inter-Commissionerate Transfer Policy is an Employer Prerogative and no Vested Right Exists for Permanency at a Transferred Post

The applicants were appointed as Inspectors in the Indirect Taxes and Customs department between 2009 and 2013 in various zones (Delhi, Kolkata, Chennai) under the Recruitment Rules (RR) of 2002, which permitted Inter-Commissionerate Transfers (ICT).

In 2017, the applicants were transferred to the Shillong Zone via ICT and absorbed with bottom seniority.

However, the 2016 Recruitment Rules omitted the provision for ICT.

Consequently, the respondents issued a Circular dated 20.09.2018, declaring all ICTs made after 26.12.2016 as "non-est" and treating such officers as being on "loan basis" until they were repatriated to their parent zones.

Following the Supreme Court’s decision in SK Naushad Rahaman v. Union of India, which upheld the 2018 Circular, the respondents issued Establishment Order No. 50/2023 dated 28.06.2023, directing the repatriation of the applicants from Shillong to their original zones.

The applicants challenged this order and the retrospective application of the 2018 Circular.

1. Whether the Circular dated 20.09.2018 and the subsequent repatriation order (EO 50/2023) are unconstitutional for being implemented with retrospective effect, thereby affecting vested seniority rights.

2. Whether the respondents failed to comply with the Supreme Court’s direction in SK Naushad Rahaman to revisit the ICT policy regarding spouse posting and disabled persons before implementing the repatriation.

The court applied the principle that transfer is an incident of service and no employee has a vested right to a specific place of posting.

It relied on Mrs. Shilpi Bose v. State of Bihar, which established that courts should not interfere with transfers made in public interest unless there is a violation of statutory rules or mala fides.

Further, it applied Union of India v. S.L. Abbas, holding that the choice of posting lies solely with the employer.

National Hydroelectric Power v. Shri Bhagwan, which affirms that transfer is a condition of service necessary for administrative efficiency.

The Tribunal reasoned that the power to formulate and supersede transfer policies lies within the prerogative of the employer in the public interest.

It found that the 2011 ICT policy was validly superseded by the 2016 Rules and the subsequent 2018 Circular, which applied uniformly to all employees, thereby negating claims of discrimination.

Regarding the Supreme Court's direction in SK Naushad Rahaman, the Tribunal held that the observation to "revisit" the policy for compassionate grounds was "suggestive in nature" and not a mandatory prerequisite that stayed the implementation of the existing 2018 Circular.

Since the 2018 Circular had already been upheld by the Apex Court, the Tribunal found no illegality in the department’s action to repatriate the applicants to their parent zones.

The Tribunal dismissed the Original Application, finding no merit in the challenge against the Establishment Order No. 50/2023 and all interim protections were vacated.