Central Administrative Tribunal - Delhi
Dr. Sulekha Chakraborty vs Union Of India (Uoi) And Ors. on 24 August, 2007
Equivalent citations: 2008(2)SLJ324(CAT)
ORDER Shanker Raju, Member (J)
1. Through this O.A., following reliefs have been prayed for by the applicant:
(a) A direction to the respondent No. 5 to forthwith send the recommendation of the name of the applicant to respondent Nos. 3 and 4 as eligible non SCS Officer of State Government Assam having outstanding merit and ability and age for selection to IAS for the year 2006.
(b) A direction to the Respondent to forthwith convene the Selection Committee Meeting, make a selection and prepare the select list for appointment by selection to the 2(two) vacancies so determined by the Central Government for the year 2006 in the Indian Administrative Service, Assam-Meghalaya Joint Cadre from non-State Civil Service, Assam.
(c) A direction to the respondents not to club together the 2(two) vacancies of Indian Administrative Service, Assam-Meghalaya Joint that arose for calender year 2006 with any vacancy that may arise for the calender year 2007 and in near future and consider the said 2 (two) posts separately for the year 2006.
2. Brief factual matrix transpires that the applicant, who was a Project Assistant in Punjab University, Patiala, had also served as Lecturer in Pragiyotish College, Guwahati. She was appointed as Research Officer (Class-I) in Education (Adult) Department under Government of Assam on 15.2.1985 and presently serving as Joint Director, Training under the administrative Reforms and Training Department.
3. A process was initiated for determination of vacancies for selection to the Indian Administrative Service (for short 'IAS') to be filled up from non-State Civil Service (hereinafter referred to as 'non-SCS') as per IAS (Appointment by Selection) Regulation 1997 (for short 'Regulation 1997'). Two vacancies were determined amongst the non-SCS Officers. A letter written by Commissioner and Secretary to the Government of Assam, Department of Personnel on 5.6.2006 requested an Additional General Secretary to recommend the names of such officers who are eligible as per Regulation 1997. An information sent by the DOP and T to the Chief Secretary of Assam on 26.6.2006 directed relevant statutory provisions to be followed in determination of two vacancies in the current year of IAS to be filled up from non-SCS Officers. Time has been extended from making recommendation by respondent No. 6 from 15.6.2006 to 15.9.2006. Name of the applicant was recommended amongst others from non-SCS on 22.6.2006. However, some clarifications sought from Personnel Department of Government of Assam were responded by the respondents vide their letter dated 22.12.2006.
4. The grievance of the applicant is that the State Government of Assam, despite ACRs were available in time, had delayed in sending the proposal to the UPSC without any fault attributed to the applicant. As a result thereof, the selection could not be held by 31.12.2006. As such the UPSC under Regulation 5(c) of the Regulation 1997 decided as impracticable to hold the Selection Committee meeting for 2006 to the IAS of Assam and Meghalaya joint cadre from non-SCS Officers of Assam. This, according to the applicant, has impeded her fundamental right to be considered.
5. Learned Counsel would contend that Regulation 5(c) of the Regulation, 1997 provides that no meeting of the Selection Committee may be held herein, as no proposal made by the Central Government or the State Government to this effect. The action of the UPSC without disclosing the reasons as to the practicability of holding a meeting of the Selection Committee, at its ipsi dixit, is not in accordance with law.
6. Learned Counsel would also contend that as there are two vacancies in IAS to be filled up from SCS Officers, these vacancies should be shown of 2007 and the proposal should go to the UPSC from the State Government of Assam.
7. Learned Counsel states that Rule 4(2) of the IAS Regulations of 1954 read with Regulation 5 of Regulation 1997 mandates that vacancies up to 1st day of January of each year are to be determined every year and in such an event, not holding a Select Committee meeting year-wise, is an infraction to the rules and has been deprecated by the Apex Court in Union of India and Ors. v. R.N. Banerjee and Ors. in case of promotion to the IAS, which in principle mutatis mutandis extends to the present case as well.
8. Learned Counsel has also relied upon the decision of the coordinate Bench in Santanu Thakur v. Union of India and Ors. O.A. No. 135/2007, decided on 3.8.2007 wherein for State Officers a direction had been issued to the Government of Assam to forward the necessary documents and thereafter UPSC to convene meeting within 45 days thereof.
9. Lastly applicant contends that there has been a discrimination meted out to the applicant which is violative of Articles 14 and 16 of the Constitution of India.
10. It is stated that when a meeting for promotion of SCS Officers can be held in 2001 pertaining to the yesteryears, why the same not to be followed in the present case.
11. On the other hand Mr. R.V. Sinha, learned Counsel appearing for respondent Nos. 1 and 2 (DOPandT) adopted the arguments of respondent Nos. 5 to 7 i.e., Government of Assam. Respondent Nos. 3 and 4, i.e., UPSC have been represented by Shri J.B. Mudgil, who by referring to the rules, states that in case of non-receipt of a proposal during a particular recruitment year invocation of Regulation 5(c) of Regulation 1997, the selection process abates.
12. Mr. Ng. S.R. Luwang, learned Counsel appearing for State of Assam stated that there is a difference in the Regulation 5, which is for IAS (Appointment by Promotion) Regulations, 1955 and IAS (Appointment by Selection) Regulations, 1997. In the former, on deletion of Clause 5 (c), there can be a situation where the earlier vacancies pertaining to the yesteryears would be subjected to a selection irrespective of the year in which the vacancies had been determined, which is a process to be adopted by DPC in case of promotion. Whereas for non-SCS Officers, though the vacancies are maximum of 15% carved out of the 33.3% quota for SCS Officers, yet there is noiota of promotion and being a selection, Regulation 3 mandates filling up of vacancies each year and substantive vacancies on the 1st day of January of the year would not exceed the number of substantive vacancies.
13. Learned Counsel would also rely upon Regulation 4 to contend that the number of persons proposed for consideration shall not exceed 5 times the number of vacancies. Though it is stated that there were two vacancies determined for non-SCS in 2006. Yet proviso to Rule 4 obligates that a person appointed in the earlier select list shall not be considered for appointment under Regulation 9 and the Committee, as referred to in Regulation 5, shall not meet and no list for the year in question shall be prepared in the eventuality when UPSC, in its own motion, finds the meeting not to be practicable in the facts and circumstances of the case, as the recruitment is restricted to the calendar year where 1st day of January is the determination of the vacancies if the process of sending the list by the State Government is not completed and no list is received by 31st December of the year. There is no question of any Committee to be convened for selection of non-SCS officers in IAS.
14. Learned Counsel contends that the decision of the coordinate Bench, referred to above, applies to a different fact situation with different set of Regulations, which permits consideration of eligible persons and carrying forward of the vacancies as not applicable in case of non-SCS Officers, as such the claim of the applicant cannot be countenanced.
15. As regards delay in sending the documents/list to the UPSC, it is stated that for want of availability of the ACR(s) and vigilance clearance, the list was not sent and as in 2007, Government within its prerogative, as empowered under Regulation 5 (b) for want of vacancies, had decided that no recruitment shall be made, which is inconsonance with Regulation 8 of IAS (Recruitment) Rules, 1954, applicant has no indefeasible right to be appointed on selection to the IAS. Accordingly, it is requested that the O.A. may be dismissed.
16. Rejoinder reiterates the contentions raised by the applicant in her O.A.
17. Before adverting to the legal position, if the brief methodology of appointment of non-SCS Officers in IAS and the rules involved therein are to be highlighted.
18. All India Services Act, 1951 constitutes All India Service. Rule 8 of the IAS (Recruitment) Rules, 1954 provides for recruitment by promotion or selection for appointment of State and joint cadre and as per Regulation 8(2), which empowers the Central Government in special circumstances on recommendation of the State Government in consultation with the UPSC as per the Regulations to recruit to Service any person of outstanding ability and merit serving in connection with the affairs of the State, who is not a member of a State Civil Service. Accordingly, IAS (Appointment by Selection) Regulations, 1956 have undergone a change and were modified as Indian IAS (Appointment by Selection) Regulations, 1997. Regulation 3 empowers the Central Government in consultation with the State Government to determine the number of vacancies for which recruitment may be made each year and the number of vacancies shall not exceed the number of substantive vacancies as on 1st day of January of the year.
19. As per Regulation 4 of the Regulation 1997, State Government has to consider a person of outstanding merit and ability as non-SCS Officer, who has not less than 8 year of continuous service and when the vacancies are determined, the zone of consideration would not exceed 5 times the number of vacancies. There is an embargo of attainment of 54 years on the 1st day of January of the year in the year in which a decision is taken to propose the name for consideration of the Committee.
20. Regulation 5 mandates the Committee to meet every year to consider the proposal of the state Government but the meeting of the Committee shall not be held and no list for the year shall be prepared when there are no substantive vacancies as on the 1st day of January of the year and if the Central Government in consultation with the State Government decides not to hold any recruitment during the year to the substantive vacancies as on 1st day of January of the year.
21. In third eventuality under Regulation 5(c), the UPSC suo motu when finds not practicable to hold the meeting during the year in the facts and circumstances of each case, no selection is held. As per Regulation 7, a select list is to be prepared and Regulation 8 mandates appointment to be accorded within 60 days from the select list. Regulation 9 of the Regulations empowers the Government not to appoint any person from the select list if it is in public interest.
22. Having a clear picture of the Regulations involved in the present controversy, let us revert back to the IAS (Recruitment) Rules, 1954 where Regulation 8(2) empowers the Central Government from time to time to make recruitment to the Service. These Rules under which the Regulations have been framed would not be overridden by the Regulations. Accordingly, the Apex Court in Parmeshwar Prasad v. Union of India and Ors. 2002(1) SLJ 333 (SC) : 2002 SCC (L & S) 112 in a case of appointment by selection to IAS from non-SCS officers held as follows:
4. We have carefully considered the sub missions made by the learned Counsel on either sides. In our view, the reasons assigned by the Tribunal below accord with the relevant Rules and Regulations governing the selection for appointment of Non-State Civil Service Officers by selection method. The reliance placed on the decision reported in Sant Ram Sharma (supra) is inappropriate for the reasons that the Circulars issued by the Government of Bihar cannot be considered as those which could fill up even the assumed gaps, though, in our view, there is none such, for the simple reasons that it is only the authority which had the competency to make the Rules or Regulations that could side to have even such powers. The communication of the Union Public Service Commission, noticed above, also does not land any support to the claim of the appellant. The decision of this Court in T. Sham Bhat (supra) has no relevance whatsoever to the issue raised before us; nor could the reasons, which weighed with this Court in arriving at the decision therein, be stretched to the extent of obliterating all differences and distinctions specifically envisages in the respective Regulations providing for different manner or procedure of consideration in respect of appointment by promotion of State Civil Service Officers and appointment by selection of Non-State Civil Service Officers. The decision in Syed Khafid Rizui (supra) as well as the one reported in Vipinchandra Hirala Shah (supra) related to appointment by promotion of State Civil Service Officers and they cannot be of any assistance for considering the claims and rights of the appellant under the Indian Administrative Service (Appointment by Selection) Regulations. This Court in explaining the meaning of the word "ordinarily" in Regulation 5 of Indian Administrative Service (Appointment by Promotion) Regulations had come to the particular conclusion having regard to the mandate contained in Clause (1) of Regulation 5 that the Selection Committee shall ordinarily meet of intervals not exceeding one year and prepare a list of such members of the State Civil Service, as are held by them to be suitable for promotion to the Service. So far as Indian Administrative Service (Appointment by Selection) Regulations, 1956 is concerned, Clause (1) of Regulation 3 only envisages that the State Government may, from time to time, consider by way of selection the cases of persons not belonging to the State Civil Service but serving in connection with the affairs of the State. The provisions contained therein also interdict the State Government from considering cases of persons, who have attained the age of 54 years on the first day of April of the year in which the cases of the persons are considered and consequently, no claims can be asserted in derogation of such stipulation. So far as the case on hand is concerned, the factual details disclosed show and that there is no controversy over the same, that the vacancies being only two, the number of officers proposed for the consideration of the Selection Committee by the State Government shall not exceed five times the number of vacancies and that as a matter of fact, ten eligible persons under the said category have been proposed by the State Government. The omission or lapse, if any, on the part of the State Scrutiny Committee, which is meant to shortlist the candidates proposed by the Heads of various Departments of the Government, is purely an internal working arrangement and such a selection cannot be equated to consideration and selection by the Select Committee envisaged under the Regulations. Consequently, we see no infirmity whatsoever in the findings of the Tribunal in non-suiting the appellant, so as to call for our interference.
23. Further in Government of India v. G. Limbadri Rao and Ors. 2005(1) SLJ 359 (SC) : 2004 SCC (L&S) 1019, while dealing with appointment of non-SCS Officers to IAS, the Apex Court rules as follows:
15. We have already extracted Regulation 4 of the Regulations which would make it clear that the State Government while considering the proposals is required to consider the case of the person not belonging to the State Civil Services but serving in connection with the affairs of the State who is of outstanding merit and ability and holding a gazetted post in a substantive capacity and has completed not less than 8 years of continuous service under the State Government on the first day of January of the year in which he has been declared equivalent to the post of Deputy Collector in the State Civil Services. The State Government is required to propose the names of such persons who possess such qualifications for consideration of the Committee.
16. However, the proviso mandates that the State Government shall not consider the case of the 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 consideration of the Committee.
17. The first respondent herein contended that as is evident from the DO letter dated 25.10.2001, the State Government had taken a decision to send necessary proposals to the Union Public Service Commission for preparation of the select list of Non-State Civil Service Officers for the year 2002 for appointment to IAS under the provisions of the Regulations.
18. In our opinion, the High Court is not correct in allowing the writ petition of the first respondent by misquoting Regulation 4. It is seen from the records that for the recruitment year 2002, the proposals were received in that year and the eligibility of officers was reckoned from 1.1.2002 as per the provisions of the Selection Regulations. The High Court's observation that the eligibility of the officers was to be reckoned from 1.1.2001 is a misinterpretation of the Rules and Regulations and this interpretation would bring to naught the entire selection process undertaken by the Union Public Service Commission not only for the Government of Andhra Pradesh but for all the State/cadres where selections have been made under the Selection Regulations. The interpretation of the Rules by the High Court is not a harmonious construction of interpretation of the Rules and Regulations and if not set aside would have wide-scale implications on the selection of officers for appointment to IAS under the Selection Regulations since the Selection Committee would then be required to consider the eligibility of the officers of a previous and not the current year. Moreover, the High Court has given relief to the first respondent herein under an inadvertent typographical error in a letter of the State Government dated 25.10.2001 and this essentially circumvents the letter and spirit of the statutory Rules and Regulations. The typographical error in the DO letter dated 25.10.2001 is in the "subject" as specified: IAS - select list of Non-SCS Officers for appointment to IAS under the IAS (Appointment by Selection) Regulations, 1997 for the year 2001 - proposals - called for. However, in the remaining paras, the position has been made clear. The eligibility was as on 1.1.2002 as indicated in Paras 2 and 3, that the proposals had been called for from the various departments.
24. Having regard to the above, the decision of the Apex Court in T.N. Administrative Service Officers Association and Anr. v. Union of India and Ors. is relevant to be highlighted where the promotion of SCS Officers was in issue. It was clearly ruled that it is the prerogative of the Government to fill up the post and delay in preparing the select list is not fatal. However, a Constitution Bench in Shankeran Das v. Union of India and Ors. ruled that one has no right to be appointed even if selected.
25. Having an established proposition of law, it has to be seen whether it is incumbent upon the Government to fill up non-SCS Officers, as appointment to the IAS amongst non-SCS Officers. The proposition is clear as Regulation 8 of the Regulations 1954 mandates the Government from time to time to fill the quota but it is not mandatory or obligatory upon the Central Government in consultation with the State Government to convene the Selection Committee for selection of the non-SCS Officers. Regulation 5(b) clearly stipulates that when State Government decides in consultation with the Central Government that no recruitment shall be made during the year as to the vacancies on 1st day of January of the year, there cannot be any question of year-wise holding of DPC, unlike SCS Officers in whose respect, Regulations, i.e., (Appointment by Promotion) Regulation, 1955 would apply. There cannot be any comparison between SCS and non-SCS Officers in the matter of their induction to IAS, as both are situated in different context. There is distinction in the Regulations operating their appointment to the IAS. Whereas for SCS Officers there is no embargo of holding a Selection Committee meeting within the year and if it is not held, there can be clubbing of vacancies for the next year, which is not possible and permissible under the IAS (Appointment by Selection) Regulations for non-SCS Officers. If the vacancies determined so in consultation with the State Government by the Central Government as on 1st day of January of the year are not filled up by 31st December of the same year, the vacancies lapse. There cannot be a selection process, which may go beyond the year of recruitment, which on calendar basis ends on 31st December of that year. A new process is to be initiated as per Regulation 3 of Regulation 1997 where year-wise determination of vacancies has to be made.
26. In nutshell when vacancies meant for non-SCS Officers are not filled up for that year, the same reverts back to the quota of SCS Officers and then a fresh process is to be initiated if Central Government and State Government agree to determine the vacancies for the next year and in such an event, the Regulations will hold the field and are to be operated for consideration of non-SCS Officers on appointment by selection.
27. In the present case, as we find that though the applicant was found not to have been facing any disciplinary proceedings, etc., yet the fact that within the zone of consideration not only the applicant but others were also figuring for want of vigilance clearance and ACRs of such officers when no available and completed, the process went beyond 31.12.2006 and at such an event, the decision of the UPSC keeping in light the Regulation 3 and Regulation 5(c) does not suffer from any legal infirmity. Hence, the UPSC has acted in accordance with the Regulations.
28. Moreover, the decision cited by the learned Counsel in N.R. Banerjee's case (supra) in its ratio decidendihas applicability only on IAS (Appointment by Promotion) Regulation, 1955 and would not, ipso facto, be applied to non-SCS Officers, who are governed by different sets of Regulations. Though by not finalizing the proposal by the State Government, meeting of the Selection Committee in the Commission has not been held, which might have caused undue hardship to the applicant, yet when the appointment by selection is governed by the set of rules, any appointment or consideration thereof de hors the rules would amount to illegality and rule of law does not prescribe decision on sympathy or equity when it is opposed to law.
29. Discrimination and an equality as envisaged under Articles 14 and 16 of the Constitution as a condition precedent requires establishment of equality between the person challenging the fact of the Government and claiming the benefit in respect of a person. Unless both are equally placed, un-equals cannot be treated equally. For non-SCS and SCS Officers with different set of Regulations, they are not at par and any decision or the Regulation applicable to SCS Officers would notmutatis mutandis apply to the non-SCS Officers.
30. We do not find the twin test as laid down under Article 14 of the Constitution satisfied in the present case. Accordingly, the contention that the applicant has been discriminated cannot be countenanced in law.
31. Resultantly, for the foregoing reasons, we find the O.A. as bereft of any merit, which is accordingly dismissed. No costs.