Central Administrative Tribunal - Ernakulam
Dr. P. Suresh Babu vs Union Of India Represented By on 26 September, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 226 of 2012
Wednesday, this the 26th day of September, 2012
CORAM:
HON'BLE Mr. JUSTICE P.R. RAMAN, JUDICIAL MEMBER
HON'BLE Mr. K.GEORGE JOSEPH, ADMINISTRATIVE MEMBER
Dr. P. Suresh Babu,
S/o. Prabhakaran R (late),
Deputy Collector (RR),
Kerala Financial Corporation,
Thiruvananthapuram - 695 001.
Residing at : House No. 15,
"Sabhalaya Nagar", Kesavadasapuram,
Pattom (P.O), Thiruvananthapuram - 695 004. - Applicant
(By Advocate Mr. T.C. Govindaswamy)
Versus
1. Union of India represented by
The Secretary to the Government of India,
Ministry of Personnel, Public Grievances & Pensions
Department of Personnel & Training)
New Delhi - 110 001.
2 State of Kerala represented by
The Chief Secretary to the Government of Kerala,
Government Secretariat, Thiruvananthapuram - 695 001.
3 The Additional Chief Secretary to the Government
Revenue Department, Government of Kerala,
Government Secretariat, Thiruvananthapuram - 695 001.
4 The Joint Secretary, Revenue (C) Department,
Government Secretariat, Thiruvananthapuram - 695 001.
5 The Union Public Service Commission,
New Delhi - 110 001 - through its Secretary - Respondents
(By Advocates : Mr. Varghese P. Thomas for R-1)
Mr. M. Rajeev, GP for R 2-4
Mr. T.M. Nellimoottil for R-5
Mr. P.K. Manoj Kumar R 6-8)
This original Application having been heard on 12.09.2012 the Tribunal on
26.09.2012 delivered the following :
O R D E R
HON'BLE MR. K GEORGE JOSEPH, ADMINISTRATIVE MEMBER:
The applicant, a Deputy Collector, had requested the Government of Kerala to count his previous service in the Vikram Sarabhai Space Centre (VSSC) for calculating the qualifying service for promotion to the Indian Administrative Service (IAS). His request was rejected vide Annexure A-5 order dated 24.01.2012. Aggrieved, he has filed this O.A. to quash the impugned order and to direct the respondents to reconsider his review application dated 28.08.2011 at Annexure A-3 and to declare that the post of Engineer-SE held by him in the VSSC is equal to the post of Deputy Collector and for all consequential benefits.
2. The applicant contended that there is nothing in the IAS (Appointment by Promotion) Regulations, 1955, requiring the concurrence of the Government of India to declare any post as equivalent to that of the Deputy Collector and that such post should be in the State Government service. He submitted that Shri Biju Prabkakar had been given the benefit of treating his service as Technical Officer (Chemical) in the Factories and Boilers Department as equivalent to that of the Deputy Collector, even though the said post had absolutely no connection or proximity in the nature of duties relating to the post of Deputy Collector. Therefore, rejection of his request is highly arbitrary. Whether it is promotion stream or selection stream, the issue of declaration of equivalence is the same. Hence the precedent of equating other services is squarely applicable here. In the case of Shri Biju Prabhakar, the reason that the post is not in the State Service or there is no proximity in the nature of duties was not applied. In the case of appointment by promotion, it is not stated that eight years service should necessarily be in the State Service. As per proviso 4 to the Regulation for the military personnel who joined the SCS after being released from the Emergency Commission, their past military service is counted for determining the eight years period for eligibility for promotion to the IAS. The past service in a post in the Central Government service at a higher level should never be a disadvantage. A conjoint reading of the 3rd proviso to sub-rule 2 of the Regulation 5 of the Promotion Regulation and its explanation would show that the declaration of equivalence is within the powers of the State. The applicant has been discharging administrative and managerial functions for over 08 years. The Kerala Public Service Commission issued offer of appointment to the applicant to the post of Chief (Industry and Infrastructure) of the Kerala State Planning Board. Thus his experience in VSSC has been recognised and accepted by the Government of Kerala and the Kerala Public Service Commission. The scale of pay attached to the post of Engineer-SE in the VSSC is higher than that of the Deputy Collector and the nature of duties was of administrative character. The Government of Kerala issued an order to include the the officials of the Administrative Secretariat in the SCS and proposed to the Government of India to amend the Promotion Regulation for the purpose, citing the reason that there are no eligible candidates from the SCS. In the light of the decision at 2.2 of the Government of India that experience in administration is eligible for consideration, the applicant had requested the authority to consider his request for declaration of equivalence.
3. Per contra, the respondents submitted that as the applicant has not completed 8 years of continuous service in the post of Deputy Collector, he is not eligible to be considered for promotion to the cadre of IAS as per the IAS (Appointment by Promotion) Regulations, 1955. As per the said Regulations, declaration of equivalence of a post to the post of Deputy Collector requires approval of the Central Government and such post should be in the State Government service. The previous service of the applicant in VSSC has no proximity in the nature of duties and functions attached to the post of Deputy Collector. The applicant does not come under the ambit of 5th proviso provided for in the IAS (Appointment by Promotion), 1955, as he was an Engineer in the VSSC under the Department of Space, Government of India, not a released emergency commissioned or short service commissioned officer. The post held by the applicant in VSSC is not a post, the incumbent of which for the purpose of Revenue and General Administration, holds charge of a sub division of a district or a post of higher responsibility which is pre-requisite as per the Regulation 2 (j) (ii) of IAS (Appointment by Promotion) Regulations, 1955. For the purpose of consideration of the members of Non- State Civil Service, State Government concerned is required to declare a post equivalent to the post of Deputy Collector. Such a declaration is not required in the case of State Civil Service to which he belongs. As per the IAS (Appointment by Promotion) Regulations, 1955, only persons belonging to State Civil Service, i.e. Deputy Collectors alone, who have not less than 8 years service are considered. Shri Biju Prabhakar was in the State Civil Service. He was on deputation to Factories and Boilers Department under the Government of Kerala. He was absorbed in that department and his service for 8 years was counted and declared equivalent to that of the Deputy Collector for consideration in the selection category of IAS based on the order of this Tribunal. The applicant is in the promotion category, not in the selection category. The very fact that the State Government sought the approval of the Central Government to include the officers of the Administrative Secretariat in the State Civil Service shows that it goes by rules only.
4. We have heard Mr.T.C. Govindaswamy, learned counsel for the applicant and Mr. Varghese P. Thomas, learned counsel for the respondent No.1, Mr. M. Rajeev, learned G.P. appearing for the respondents No. 2 to 4, Mr. Thomas Mathew Nellimoottil, learned counsel for the respondent No. 5 and Mr. P.K. Manoj Kumar, learned counsel for the respondents No. 6 to 8 and perused the records.
5. For the sake of convenience, the Regulation 2(1)(j)(ii) of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 , which defines State Civil Service, is extracted as under:-
".......... any service or services, approved for purposes of the Recruitment Rules by the Central Government in consultation with the State Government, a member of which normally holds, for purposes of revenue and general administration, charge of a sub-division of a district or a post of higher responsibility".
6. As per Annexure A-16, the Deputy Collectors of the Revenue Department alone constitute the State Civil Service as far as Kerala State is concerned for induction into the IAS on promotion basis. Proviso to Regulation 5(2) reads as under:-
"Provided also that the Committee shall not consider the case of a member of the State Civil Service unless on the first day of January of the year in which it meets, he is substantive in the State Civil Service and has completed not less than eight years of continuous service (whether officiating or substantive) in the post of Deputy Collector or in any other post or posts declared equivalent thereto by the State Government.
Provided also that in respect of any released Emergency Commissioned or short Service Commissioned Officers appointed to the State Civil Service, eight years of continuous service as required under the preceding proviso shall be counted from the deemed date of their appointment to that service, subject to the condition that such officers shall be eligible for consideration if they have completed no less than four years of actual continuous service, on the first day of the January of the year in which the committee meets, in the post of Deputy Collector or in any other post or posts declared equivalent thereto by the State Government.
Explanation-The powers of the State Government under the third proviso to this sub-regulation shall be exercised in relation to the members of the State Civil Service of a constituent State by the Government of that State."
7. A Deputy Collector has to complete eight years of continuous service in the post of Deputy Collector or an equivalent post. It means the an officer for consideration of promotion to the IAS should be first a Deputy Collector and then have eight years of service either as Deputy Collector or in an equivalent post. The question of service in a post declared equivalent can arise as per proviso to regulation 5(2) in respect of a Deputy Collector only i.e. after one has joined that cadre. But as per proviso inserted vide notification dated 1.6.1978 in respect of any released emergency commissioned or short service commissioned officers the requirement of eight years service can be counted from the deemed date of appointment to that service if he has completed at least four years of actual service in the post of a Deputy Collector or equivalent post. The applicant in effect is asking for the extension of the above benefit to be granted to him in respect of his service as Engineer (SE) in the Vikram Sarabhai Space Centre. However, there is no provision in Indian Administrative Service (Appointment by Promotion) Regulations, 1955 under which his case can be considered.
8. When a Deputy Collector is deputed to a post outside his cadre that post is declared equivalent to the post of Deputy Collector to protect his service benefits. Appointment to IAS by promotion can be made from the cadre of Deputy Collectors only. Promotion to the IAS is the preserve of the Deputy Collectors as they alone constitute the State Civil Service. As highlighted by the applicant, experience in revenue and general administration is required for holding posts in the IAS as per the decision of the Government of India below Regulation 3 of the IAS (Appointment by Promotion) Regulations, 1955. Duties involved in posts outside the cadre of Deputy Collector can be of administrative nature. The Deputy Collectors can be deputed to such posts which are declared to be equivalent to the post of Deputy Collector. The nature of duties is quite relevant in declaring the equivalence of posts. It is for this reason the State Governments have been advised by the Central Government in Government of India decision 2.3 under Regulation 3 that a State Police Officer should not be sent on deputation to posts in non-police departments, which cannot be declared equivalent to the Principal Police Service of the State. The posts to which Deputy Collectors are deputed are equivalent to the post of Deputy Collector only so long as they are held by a Deputy Collector. When such posts are held by the officers other than Deputy Collectors, they cannot be declared equivalent to the post of Deputy Collector for the purpose of promotion to the IAS. To illustrate, the post of Engineer- SE, VSSC (assuming that it is under the State Government), when held by a Deputy Collector can be declared equivalent to the post of Deputy Collector. But if an officer other than a Deputy Collector succeeds him in that post, it no longer remains equivalent to the post of Deputy Collector for the purpose of inclusion in the select list for promotion to the IAS as per IAS (Appointment by Promotion) Regulations, 1955 for the simple reason that it is not held by a Deputy Collector whose cadre alone constitutes the State Civil Service in Kerala. For a service to be approved as State Civil Service, a member of that service should normally hold the charge of a sub division of a District or a post of higher responsibility for the purpose of Revenue and General Administration. The State Civil Service has connection or proximity with Revenue and General Administration at the level of Deputy Collector or at a higher level. Therefore, if the post held by a non State Civil Service officer is to be declared equivalent with the post of a Deputy Collector, it would imply that it is equivalent to State Civil Service for the purpose of promotion to the IAS. To declare a post equivalent to State Civil Service, nexus or proximity with Revenue and General Administration is a must. It is the Central Government that approves a State Service as State Civil Service as per Regulation 2 (Supra). Therefore, approval of the Central Government is absolutely necessary for declaring a post equivalent to the post of the Deputy Collector for the purpose of promotion to the IAS, besides nexus or proximity with Revenue and General Administration.
9. The Regulation 4 of the Indian Administrative Service (Appointment by Selection) Regulations, 1997 reads as under:-
"4. State Government to send proposals for consideration of the Committee:
(1) The State Government shall consider the case of a person not belonging to the State Civil Service but serving in connection with the affairs of the State who,
i) is of outstanding merit and ability, and
ii) holds a Gazetted post in a substantive capacity, and
iii) has completed not less than 8 years of continuous service under the State Government on the first day of January of th year in which his case is being considered in any post which has been declared equivalent to the post of Deputy Collector in the State Civil Service and propose the person for consideration of the Committee. The number of persons proposed for consideration of the Committee shall not exceed five times the number of vacancies proposed to be filled during the year.
Provided that the State Government shall not consider the case of a person who has attained the age of 54 years on the first day of January of the year in which the decision is taken to propose the names for the consideration of the Committee.
Provided also that the State Government shall not consider the case of a person who having been included in an earlier Select List, has not been appointed by the Central Government in accordance with the provisions of regulation 9 of these regulations."
10. All Gazetted officers of outstanding merit and ability who are not Deputy Collectors, with eight years of continuous service in any post declared equivalent to the post of Deputy Collector and not completing 54 years of age on the first day of January of the select list year are eligible for appointment by selection to the IAS. In such cases, a post is declared equivalent to the post of Deputy Collector for the purpose of bringing it on par with the post of the Deputy Collector, the post of reference for the purpose of induction into the IAS. The method of promotion is based on the assessment of annual confidential reports and service records only. The method of selection consists of assessment of annual confidential reports along with other service records as well as personal interview with equal weightage. Whereas three times the number of vacancies are considered for promotion, the number of officers included in the zone of consideration for selection is five times the number of vacancies. Thus, the method of promotion and the method of selection are distinct from each other. So also the declaration of equivalence of post with the post of the Deputy Collector in either method, serves different purposes.
11. The applicant's previous service in the VSSC on the post of Engineer- SE has no proximity or connection in the nature of duties with that of the Deputy Collector for the reason that the incumbent of that post cannot hold the charge of a sub division of a District or a post of higher responsibility for the purpose of Revenue and General Administration. Shri Biju Prabhakar, who was a Deputy Collector, was absorbed in the Factories and Boilers Department under the Government of Kerala and his service was regularised by the State Government. His 8 years service was counted and declared equivalent to the post of a Deputy Collector for consideration in the selection category of IAS. His case, therefore, cannot be comparable to the case of the applicant, who is a Deputy Collector standing in the queue for consideration for promotion, not selection to the IAS.
12. The term State Service denotes a service under the State Government. The State Government has got exclusive jurisdiction over State Services. A Deputy Collector i.e. a member of the State Service which is the State Civil Service can be deputed by the State Government to a post declared equivalent to the post of Deputy Collector. Therefore, the post declared equivalent to the post of Deputy Collector to which a Deputy Collector can be deputed by the State Government it goes without saying, should necessarily be in the State Service. The applicant was not a Deputy Collector when he held the post of Engineer-SE, VSSC. That post was not under the State Government. That post does not have proximity or nexus with Revenue and General Administration in a sub-division or at a higher level to be declared equivalent to the post of Deputy Collector with the approval of Government of India for the purpose of promotion to the IAS.
13. In the light of the above discussion, there is no merit in the contentions of the applicant. The O.A is dismissed with no order as to costs.
(Dated, this the 26th September, 2012)
(K. GEORGE JOSEPH) (JUSTICE P.R. RAMAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
cvr.