ORDER : 1. Heard. 2. This petition under Article 227 of the Constitution of India is preferred against order dated 30.01.2024, by which the Tribunal has dismissed the Original Application filed by the petitioner. 3. We consider it appropriate to refer to some essential facts necessary for determination of controversy involved in this petition, which are stated infra. 4. The petitioner was initially appointed as Inspector in the Central Board of Excise and Customs(CBEC) and was posted in Vadodara zone. The petitioner’s wife was employed as Teacher in the education department of the Government of Rajasthan and she remained posted in Rajasthan. A circular was issued on 27.10.2011 which permitted inter commissionerate transfer on certain conditions applicable to certain beneficiary classes which included a case of request for transfer on the ground that the spouse was posted in another zone. The petitioner made an application for his transfer from Vadodara zone to Jaipur zone on the ground that his wife was posted in Jaipur zone. The representation was considered favourably under circular dated 27.10.2011 and the petitioner was eventually transferred to Jaipur zone vide order dated 13.01.2017. He was assigned seniority in the new transfer zone on 07.05.2018. 5. While the matter stood thus, another circular came to be issued on 20.09.2018 which sought to withdraw earlier circular dated 27.10.2011, taking note of the fact that in view of promulgation of new rules in the year 2016, namely Central Excise Customs Commissionerate Inspector (Central Excise, Preventive Officer, and Examiner) Group-B Post 2016, such permanent inter commissionerate transfers are no longer permissible under the law. The circular was challenged before the Central Administrative Tribunal, Bangalore and the Bench at Bangalore quashed the same. The matter finally travelled up to Hon’ble Supreme Court where the order of the Tribunal was reversed and the Hon’ble Supreme Court upheld the validity of the circular. 6. As the circular dated 20.09.2018 stood revived in its force and implementation, the petitioner was sent back to his parent zone i.e. Vadodara zone. Being aggrieved by the said circular dated 20.09.2018, the petitioner and similarly situated persons filed petitions before the Central Administrative Tribunal, Bench at Jaipur as well as Jodhpur. The Tribunal, relying upon the order passed earlier by the Central Administrative Tribunal, Bench at Bangalore, disposed off the Original Application as having rendered infructuous in view of the order passed by the Tribunal. The Tribunal, relying upon the order passed earlier by the Central Administrative Tribunal, Bench at Bangalore, disposed off the Original Application as having rendered infructuous in view of the order passed by the Tribunal. Aggrieved by the order passed by the Tribunal, the Union of India preferred a petition under Article 227 of the Constitution of India before this Court. Vide order dated 18.08.2022, this Court set aside the order of the Tribunal taking note of the fact that the earlier order passed by the Central Administrative Tribunal, Bench at Bangalore was reversed and the Hon’ble Supreme Court in the case of SK Nausad Rahman & Ors. Vs. Union of India & Ors. [ (2022) 12 SCC 1 ] had upheld the validity of the circular. The writ petition was accordingly allowed. However, instead of remanding the case again to the Tribunal, taking into consideration that it was a case relating to transfer, this Court directed the Union of India to examine representations of the employees. It was further directed that the representation shall be decided in the light of the order passed by the Hon’ble Supreme Court in the case of SK Nausad Rahman & Ors. Vs. Union of India & Ors. 7. After the aforesaid order, the present petitioner again preferred a representation seeking his transfer in Jaipur zone in which one of the main ground was that his spouse is also in the Government employment in the State of Rajasthan. 8. The respondents, however, rejected the representation vide order dated 03.10.2022. Aggrieved by the said order, the petitioner filed an Original Application, which was dismissed by impugned order, giving rise to this petition. 9. Learned Senior counsel appearing for the petitioner would contend that the petitioner was earlier transferred permanently from Vadodara zone to Jaipur zone on consideration of the ground that his spouse was posted in Jaipur zone. This permanent transfer led to assignment of permanent seniority also. He was thus, for all legal and practical purposes, finally absorbed in Jaipur zone. Therefore, the subsequent circular dated 20.09.2018 could not have taken away his vested right. He would submit that the circular was, therefore, bad in law as it was sought to be operated retrospectively in terms of the provisions contained in para 6 thereof. He was thus, for all legal and practical purposes, finally absorbed in Jaipur zone. Therefore, the subsequent circular dated 20.09.2018 could not have taken away his vested right. He would submit that the circular was, therefore, bad in law as it was sought to be operated retrospectively in terms of the provisions contained in para 6 thereof. He would further submit that the Hon’ble Supreme Court, though upheld the validity of the circular, at the same time, made pertinent observations which required the respondents to modify the policy and if necessary, rules applicable to pave way for consideration at least on loan basis deserving cases of those employees who are either suffering from disability or had their spouse in another zone or on compassionate basis. However, the representation has been rejected mechanically only on the basis that as the circular dated 20.09.2018 stands revived after the orders of the Hon’ble Supreme Court, the petitioner is necessarily required to be sent back to his parent zone i.e. Vadodara zone. 10. Learned Senior counsel appearing for the petitioner would further submit that circulars which have been issued are not law and therefore, there is always a scope for consideration of adjustment of employees in appropriate cases. The petitioner’s case was not at all considered from that point of view. Even if it is assumed that the administrative exigency overrides personal individual difficulties, atleast respondents would have explored the possibility to continue the petitioner in Jaipur zone on the ground of his spouse employed and working in Jaipur zone in the State of Rajasthan. Lastly, he would submit that even if it is held that the petitioner has no option but to go back to his parent zone i.e. Vadodara zone, his seniority has to be restored for all legal and practical purposes. 11. Per contra, learned counsel for the respondents would submit that once the validity of the circular dated 20.09.2018 is upheld by the Hon’ble Supreme Court in SK Nausad Rahman’s case(supra), the circular had to be applied literally and there was no discretion left with the authority. Referring to various clauses of the circular, particularly clause (6) thereof, learned counsel for the respondents would submit that the employees were deemed to have been sent back to their parent zone after maximum period of stay of five years. Referring to various clauses of the circular, particularly clause (6) thereof, learned counsel for the respondents would submit that the employees were deemed to have been sent back to their parent zone after maximum period of stay of five years. He would next submit that once the circular contains mandatory provisions of deemed re-transfer back parent zone, there is no scope left with the authorities to consider any other grounds including ground of spouse in the other zone. His next submission is that though circular dated 27.10.2011 permitted inter commissionerate transfer, after promulgation of the Rules of 2016, such transfer were not legally permissible. Therefore the circular stood automatically superseded to that extent by operation of statutory rules. Though the petitioner had applied for his transfer, he was transferred on 13.01.2017 i.e. after promulgation of the rules. Therefore, right from inception, transfer was in contravention of the rules. Thus, for these additional rules, no relief could be claimed by the petitioner. He would finally submit that as far as issue of restoration of seniority in the parent zone i.e. Vadodara zone is concerned, that issue was neither raised nor decided by the Tribunal. Therefore, this cannot be raised for the first time before this Court. 12. We have heard learned counsel for the parties and have given anxious consideration to the submissions which have been advanced before us. 13. It is apparently clear that initially there existed a scheme of inter commissionarate transfer under circular dated 27.10.2011. However, while considering the validity of a subsequent circular Hon’ble Supreme Court in its order passed in SK Nausad Rahman’s case (supra). made pertinent observations with regard to conflict between the rules and the transfer policy and observed thus: “42. 13. It is apparently clear that initially there existed a scheme of inter commissionarate transfer under circular dated 27.10.2011. However, while considering the validity of a subsequent circular Hon’ble Supreme Court in its order passed in SK Nausad Rahman’s case (supra). made pertinent observations with regard to conflict between the rules and the transfer policy and observed thus: “42. For the above reasons, we have arrived at the conclusion that the High Court was justified in coming to the conclusion that: (i) RR 2002 contained a specific provision for ICTs; (ii) There is an absence of a provision comparable to Rule 4(ii) of RR 2002 in RR 2016; (iii) On the contrary, Rule 5 of RR 2016 specifically stipulates that each CCA shall have its own separate cadre unless directed by the CBEC; (iv) Any ICT would violate the unique identity of each cadre envisaged in Rule 5; (v) Any ICT order would transgress a field which is occupied by the rules which have been framed in terms of the proviso to Article 309 of the Constitution; (vi) The circular dated 20 September 2018 makes it absolutely clear that RR 2016 do not have any provision for recruitment by absorption and no ICT application could be considered after the coming into force of RR 2016; (vii) Transfer is a condition of service and it is within the powers of the employer to take a policy decision either to grant or not to grant ICTs to employees; and (viii) The power of judicial review cannot be exercised to interfere with a policy decision of that nature.” 14. It is pertinent to mention here that the aforesaid decision was rendered in the background that the validity of the circular dated 20.09.2018 was in issue. The earlier arrangement vide circular dated 27.10.2011 in the matter of inter commissionerate transfer was assailed by filing an Original Application before the Central Administrative Tribunal, Kerela. The Central Administrative Tribunal, Kerela quashed the circular which was assailed by filing petition before the High Court. The High Court reversed the order of the Tribunal, against which the original applicant preferred SLP in the Hon’ble Supreme Court. Hon’ble Supreme Court after detailed consideration upheld the validity of the circular. 15. Once the validity of the circular is upheld, the respondent, it is apparent, operated the circular in accordance with its terms. The High Court reversed the order of the Tribunal, against which the original applicant preferred SLP in the Hon’ble Supreme Court. Hon’ble Supreme Court after detailed consideration upheld the validity of the circular. 15. Once the validity of the circular is upheld, the respondent, it is apparent, operated the circular in accordance with its terms. Clause (6) of the circular dated 20.09.2018 reads as under: “6. In exceptional circumstances depending upon the merit of each case such as extreme compassionate grounds, such transfers may be allowed on case to case on loan basis alone keeping in view the admininstrative requirements of transferee and transferred Cadre Controlling Authority. However, maximum tenure of such transfer will be three years and can be extended with the specific approval of the Board for a further period of two years depending upon the administrative requirement. It is further reiterated that the officials transferred on the loan basis shall not be considered for promotion unless they re-join their parent cadre.” 16. Learned counsel for the respondents is quite correct in submitting that once in all such cases where transfer has been made under the pre existing circular, were to be treated as of limited duration with a capping of five years and thereafter, all those employees were deemed to have been transferred. In the present case, as is noted, the petitioner was transferred vide order dated 13.01.2017 i.e. after promulgation of Rules of 2016 which prohibited such kind of transfer. Therefore, in our view, the order of transfer right from the beginning was contrary to the provisions of the rules. The result, therefore, would be that not only the transfer but also all the subsequent actions assessing seniority would also become void ab initio. 17. In view of the above, we are of the view that insofar as the decision of the respondents to send the petitioner back to his parent zone i.e. Vadodara zone in light of the circular dated 20.09.2018 does not warrant any interference. 18. Learned Senior Counsel has made detailed submissions placing heavy reliance on the observations made by the Hon’ble Supreme Court in the case of SK Nausad Rahman(supra) in para 53. In the case of SK Nausad Rahman, Hon’ble Supreme Court though upheld the validity of the circular dated 20.09.2018, certain observations have been made: “53. 18. Learned Senior Counsel has made detailed submissions placing heavy reliance on the observations made by the Hon’ble Supreme Court in the case of SK Nausad Rahman(supra) in para 53. In the case of SK Nausad Rahman, Hon’ble Supreme Court though upheld the validity of the circular dated 20.09.2018, certain observations have been made: “53. In considering whether any modification of the policy is necessary, they must bear in mind the need for a proportional relationship between the objects of the policy and the means which are adopted to implement it. The policy above all has to fulfill the test of legitimacy, suitability, necessity and of balancing the values which underlie a decision making process informed by constitutional values. Hence while we uphold the judgment of the Division Bench of the Kerala High Court, we leave it open to the respondents to revisit the policy to accommodate posting of spouses, the needs of the disabled and compassionate grounds. Such an exercise has to be left within the domain of the executive, ensuring in the process that constitutional values which underlie Articles 14, 15 and 16 and Article 21 of the Constitution are duly protected. The appeals shall be disposed of in the above terms.” 19. It appears that the Hon’ble Supreme Court left it open for the respondents to consider modification of the policy on certain aspects of the matter. Yet it cannot be said that any mandamus was issued by the Hon’ble Supreme court to the Union of India to necessarily amend the policy and that too in a particular manner. The observations provide guidelines in the matter, in case, respondents decide to amend the policy. 20. However, all said and done, the validity of the circular dated 20.09.2018 having been upheld, the only consequence and foregone conclusion is that the petitioner has to go back to his parent zone, which has now been done. 21. One of the submissions of learned Senior counsel is that even if the provisions of the circular dated 20.09.2018 required the petitioner to go back to his parent zone, it is still open for the respondents to consider as exceptional circumstances, the fact that the petitioner’s wife is in Government service and posted in Jaipur zone in the State of Rajasthan. But for the prohibition created under the rules, this Court would have definitely considered this aspect and directed the respondents to examine the issue. However, issuing direction to the respondents to consider transfer of the petitioner from Vadodara zone to Jaipur zone on the ground of his spouse employed in Jaipur zone would tantamount to issuance of mandamus contrary to provisions of the rules which does not permit such transfer. The validity of the rules is not under challenge before us. Therefore, in these circumstances the rules and circular dated 20.09.2018 are in force. 22. Therefore in view of the above consideration and upshot of discussion, we are unable to interfere with the order of the Tribunal. 23. At last, we need to refer to one of the submissions made by learned Senior Counsel. It has been contended that if ultimately it is held that he could not be transferred from Vadodara zone to Jaipur zone in view of statutory bar created under the rules of 2016, then his seniority has to be restored with all consequential benefits in his parent zone and he should not be made to suffer as his request was accepted by the respondents which led to his shift from Vadodara zone to Jaipur zone. It is not a case where the petitioner reaped any benefit by any fraud or misrepresentation. Therefore, an equitable consideration on this aspect is necessary. 24. Though learned counsel for the respondents submits that this issue was not raised before the Tribunal and is being raised for the first time before this Court, we are of the view that the direct consequence flowing from the findings which have been recorded by us so as to sustain the validity of the order of the Tribunal, the petitioner’s seniority in its parent zone has to be restored which he would have enjoyed but for his transfer from Vadodara zone to Jaipur zone. Not only that, he is also entitled to consideration for grant of all other consequential benefits for including promotion back in Vadodara zone if any person junior to him was promoted. The petitioner would be entitled for consideration of promotion with all consequential benefits subject, of course, to his suitability for his promotion or other kind of service benefits such as scale upgradation, increments etc. The petitioner would be entitled for consideration of promotion with all consequential benefits subject, of course, to his suitability for his promotion or other kind of service benefits such as scale upgradation, increments etc. We leave it open to be considered by the authority concerned on the representation to be made by the petitioner. The authorities are required to decide the representation, if made, that the petitioner’s seniority with all other consequential benefits is required to be restored and other benefits to be granted, had he been continued in the parent zone. Therefore, in the result, though we are not inclined to interfere with the order passed by the Tribunal, we are inclined to issue direction as above in exercise of supervisory jurisdiction to do complete justice between the parties. 25. Accordingly, the writ petition is disposed off.