Central Administrative Tribunal - Delhi
Shri Jaswant Singh vs Union Public Service Commission on 6 March, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.992/2012 New Delhi this the 6th March, 2013 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (A) Shri Jaswant Singh S/o Shri Pritam Singh R/o J-79, Sri Niwas Puri, Delhi-110 065. ..Applicant (By Advocate: Shri Ashwani Kumar Dhatwalia) Versus 1. Union Public Service Commission, Through Chairman, Dholpur House, Sahajahan Roa, New Delhi-110 069. 2. Ministry of External Affairs, Through Foreign Secretary, South Block, New Delhi. 3. The Joint Secretary (AD), Ministry of External Affairs, South Block, New Delhi. Respondents. (By Advocate: Shri D.S. Mahendru) O R D E R(ORAL) Shri G. George Paracken, Member (J):
The Applicant is presently working as a Section Officer in the Government of India, Ministry of External Affairs, New Delhi. He has filed his Original Application against the alleged inaction on the part of the Respondent No.1, namely, UPSC in conducting the Special Limited Departmental Examination (SLDE for short) for filling up the unfilled SC/ST vacancies in Under Secretary (Grade-I) of IFS(B).
2. The brief facts necessary for adjudication of this case are delineated as under: According to sub-rule (2) of Rule 12 of Indian Foreign Service Branch B (Recruitment, Cadre, Seniority and Promotion) Rules, 1964 (As amended up to 17th November, 2008), no person shall be eligible for promotion to Grade-I of the General Cadre unless he has rendered at least eight (8 ) years of approved service in his respective grade. However, in terms of sub-rule (3)(a) of the said Rules Notwithstanding anything contained in sub-rules (1) and (2) vacancies in Grade-I decided to be filled up from among members of the Scheduled Castes or the Scheduled Tribes, and for which eligible officers are not available, shall be filled on the basis of results of a Limited Departmental Competitive Examination held by the Commission from time to time, in order of their merit. One post of Grade-I of IFS (B), i.e., Under Secretary (US for short) belonging to the SC category fell vacant in the year 2009 and it was to be filled by SLDE as no candidate was eligible for promotion as per the relevant Recruitment Rules. Since the Respondents did not conduct the SLDE to fill up the aforesaid post, the Applicant made a representation to the National Commission for Scheduled Castes on 07.01.2011. Taking cognizance of his grievance and those of other similarly placed candidates, the Commission requested the Respondent No.1, namely, UPSC to look into the matter and to conduct the SLDE for SC/ST officers to fill up the unfilled posts. However, the said Respondent, vide its letter dated 18.02.2011, informed the National Commission for Scheduled Castes that it was not administratively viable to conduct examination for one post. Thereafter, during the recruitment year 2010-11 as on 17.06.2011, 11 more SC vacancies and 4 ST vacancies in the cadre of US have fallen vacant. The Applicant again sent a representation on 26.07.2011 to hold the SLDE to fill up all those vacancies. As the Respondents did not take any positive action in the matter, he approached this Tribunal vide OA No.3450/2011. The said OA was disposed of vide order dated 28.09.2011 issuing a direction to the respondents to consider his representation and take further necessary action in accordance with the applicable rules or else to inform him of their decision by way of reasoned and speaking order within a period of 2 months. Pursuant to the aforesaid directions, the respondents No.2 and 3, vide their Office Memorandum dated 07.12.2011, requested the respondent No.1 to fill up all the 12 vacancies in SC category and 4 vacancies in ST category for the recruitment years 2009-10, 2010-11 and 2011-12. Since there was no response from respondent No.1, the respondents No.2 and 3, vide their letter dated 23.11.2011, again requested the former to fill up those vacancies immediately. Still the respondent No.1 is not taking any action to conduct SLDE to fill up those vacancies. On the other hand, the respondents No.2 and 3 have filled up 34 posts of Grade-I IFS (B) vide their letter dated 17.01.2012. Still the Respondent No.1 has not given any indications for holding the examination. The Applicant has, therefore, filed this OA for second time seeking the following reliefs:-
(i) Direct the respondent No.1 to conduct the Special Limited Departmental Examination (LDE) for filling up the unfilled existing SC/ST vacancies in Under Secretary (Grade-I) of IFS (B).
(ii) Pass such other and further orders as this Honble Tribunal may deem fit.
4. The respondents No.2 and 3 have filed their reply. They have not denied the submissions made by the Applicant. However, according to them, Applicants request for holding the SLDE was considered by the respondent-UPSC and, vide their letter dated 08.09.2011, they informed them that they were examining the need for holding the SLDE in consultation with other Ministries/Departments since holding examination for a single post might not be justified in terms of efforts and resources required to put in for that purpose.
5. The respondent No.1, in their reply has stated that they used to conduct the examination for SC/ST candidates of various categories of Central Government Services and the said examination was last conducted during the year 1995 as per the rules framed and notified by the DOP&T. The examination could not be held during the intervening period since no requisitions for filling up of vacancies were received. However, the Ministry of External Affairs in July, 2011, requested them to hold the SLDE for one unfilled vacancy of the recruitment year 2009-10 in the Grade-I of IFS (B). They examined the said request and undertook the exercise of ascertaining the need for holding the SLDE in consultation with Ministries/Departments. However, the Department of Personnel and Training (nodal Department for holding the examination) have categorically stated that they were not able to act as nodal Ministry for SLDE Grade-I any more as the relevant provision of conducting the said examination has since been annulled from CSS Rules, 1962, as per regulation 3 of CSS Grade-I (SLDE for filling vacancies reserved for SC/ST) Regulations, 1979 vide letter No..21/9/2012-CS.I(P) dated 02.05.2012. In the meantime, they have stated that they have received a revised vacancy position from the Ministry of External Affairs for filling up the posts through this examination, i.e., SLDE. At present, there are 43 vacancies (SC-29 and ST-14) belonging to the recruitment years 2009-10 to 2011-12. According to them, in order to examine the proposal of Ministry of External Affairs in its right perspective and to arrive at a proper decision about holding the SLDE, some relevant clarifications were sought from the DOP&T which were yet to be received and in its absence they are unable to conduct the examination in question.
6. However, today when the matter was taken up for consideration, the learned counsel for the respondents has produced a copy of the letter dated 18.01.2013 addressed to the Secretary, Union Public Service Commission stating that Central Secretariat Service has not been participating in the LDCE for Under Secretary Grade for SC/ST candidates since 1988. The reasons and circumstances for non-participation of CSS in this LDCE for Under Secretary Grade are not much clear to them from the available records, except that in the nineties, preparation of select lists in the grade of Under Secretary went in arrears on account of prolonged litigation in the matter of seniority between the direct recruit and promotee Section Officers. They have also stated that as per regulation 3 of CSS Grade-I (LDCE for SC and ST) Regulations, 1979, notified in terms of Rule 12(2)(a) of the CCS Rules, 1962, the examination was to be conducted by the Commission in the manner notified by the DOP&T from time to time. However, the CSS Rules, 1962 and the relevant regulations have been repealed and replaced by CSS Rules, 2009, in which there is no provision for LDCE for Grade-I. Therefore, presently there is no Rules/Regulations by which DOP&T can derive authority to act as the nodal Ministry for conducting the LDCE or notify the Rules for examination etc. Consequently, the vacancies in the US Grade are filled up only by promotion based on seniority.
7. We have heard the learned counsel for the Applicant, Shri Ashwani Kumar Dhatwalia and the learned counsel for the Respondents, Shri D.S. Mahendru. We have also perused the documents available on record. It is seen that the Central Secretariat Service (CSS) and the Indian Foreign Service (IFS) Rules are distinct and separate. Only the CCS (Rules) 1962 have been amended and provisions for holding SLDE has been taken away. However, the IFS Rules, 1964 remain without any change. Moreover, the purpose of DOPT acting as the Nodal Ministry is to coordinate the various participating Ministries under the CCS cadre. Of course, when the CCS Rules have been amended and provisions for holding the SLDE has been taken away, there is no need for the DOP&T to serve as the Nodal Ministry for the said purpose. Therefore, now the Ministry of External Affairs itself has to coordinate with the UPSC to conduct the SLDE as provided in the IFS Rules.
8. We, therefore, direct the respondent No.1 to act in place of the DOP&T for the purpose of holding the LDCE for the Grade-I IFS(B) i.e. Under Secretary. They shall in coordination with the UPSC notify the Rules for the examination within two months from the date of receipt of a copy of this order. Thereafter, the UPSC shall hold the examination at the earliest but in any case within four months. With the aforesaid directions, this OA is allowed. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
Rakesh