Central Administrative Tribunal - Jaipur
Rameshwar Prasad Meena vs Union Of India (Uoi) And Ors. on 26 May, 2000
JUDGMENT
B.S. Raikote, Vice Chairman
1. This application is filed for the following reliefs:
(i) That the order dated 1.8.1995 (Annexure A/1) and the order dated 28.8.95 (Annexure A/1) may kindly be set aside and quashed;
(ii) That the respondents may kindly be directed to declare final result of the applicant for Civil Services (Main) Examination, 1994;
(iii) That the respondents may be directed to consider the candidature of the applicant for appointment to appropriate service, which the applicant is entitled to get in pursuance of Civil Services Examination, 1994; and
(iv) Any other appropriate order or direction which the Hon'ble Court feel just and proper in the facts and circumstances of the case even the same has been not specifically prayed for but which is necessary to secure ends of justice may kindly also be issued in favour of the applicant."
2. It is contended by the applicant that he appeared in Civil Service Examination, 1992, and after being qualified in the preliminary examination as well as in the main examination, he was recommended in the Grade 'A' Service. Accordingly, he was issued with an endorsement vide Annexure A/3 stating that on his success in the Civil Service Examination, 1992, he was tentatively alloted to Indian Civil Accounts Service (ICAS, for short). It is stated in Annexure A/3 that his tentative allocation may undergo changes and he may get a service of higher preference or lower preference depending upon the facts and circumstances obtaining in respect of candidates above him and his final allocation of a service would be strictly on the basis of his rank in the merit list and subject to his physical fitness. It is also stated in Annexure A/3 that after the final service allocation is made, a formal offer of appointment will be sent to him by the Cadre Controlling Authority of the Service to which he is finally alloted. By Annexure A/3, he was requested, if he was willing to be considered for appointment to report the Director, Lal Bahadur Shastri National Academy of Administration, Mussoorie, on 5.9.93 without fail for the foundational course commencing on 6.9.93, the applicant was asked to sent a telegram immediately regarding his intention to join the said training. It appears that the applicant sent a telegram, a copy of which has not been placed before us. It is stated that on the basis of this telegram Annexure A/4 was issued to him giving permission to abstain from joining training under Rule 4 of the C.S.E. Rules, 1992 (The Rules, for short), to enable him to appear at the Civil Service Examination (C.S.E., for short), 1993. Thereafter, the applicant was issued with a letter dated 23.2.94 vide Annexure A/5 stating that though he was permitted to appear at C.S.E., 1993, he was alloted to ICAS on the basis of C.S.E., 1992, and aformal appointment order would be issued to him. The letter further stated that if he was not interested in the service to which he was given allocation, he can do so by informing the concerned Cadre Controlling Authority in writing within ten days of the receipt of that letter. It is the case of the applicant that having regard to the fact that his allocation of Service on the basis of C.S.E., 1992, was only tentative and he had not received any formal offer of appointment, hedecided to take up C.S.E., 1994 since he was not successful in C.S.E. 1993. The last date of receiving the application for C.S.E., 1994 was 14.2.1994 and in those circumstances, he filed an application on 26.1.1994 for preliminary examination. He was permitted to take preliminary examination and his results were declared. Thereafter, he was also permitted to appear in the main examination. He has stated that alongwith the applications for both preliminary examination and main examination, he had annexed separate applications intimating that he had passed ICAS in C.S.E., 1992, and allotted a service which he did not accept. In due course, he was declared successful in the main examination and he was also called for interview. During interview, he was given a letter dated 31.5.95 (Annexure A/ 10) stating that he was permitted to appear in the interview subject to his production of documents in terms of Rule 4(b) of the Rules. The applicant submitted that he had sent a letter informing about his refusal of ICAS vide Annexure A/7 dated 8.6.1994 and on that basis, the order dated 30.6.1994 (Annexure A/2) passed by the President, treating the offer of appointment issued to him to ICAS as cancelled with effect from 8.6.1994. The applicant submits that in view of these circumstances, he had applied for C.S.E., 1994, and in terms of the results of 1994 main examination, the respondents should have given him an appropriate appointment order. Therefore, there should be a direction in his favour in that behalf. The applicant also stated that even otherwise, the said Rule 4(b) of the Rules does not apply to his case because final allocation of service to ICAS was not given to him at any point in time before the last date of receiving the application for Preliminary Examination, 1994. The learned Counsel for the applicant contended that the Rule 4(b) of the Rules itself is discriminatory and violative of Articles 14 and 16 of the Constitution and accordingly, the same is liable to be struck down.
3. By filing reply, the respondent No. 1, Union of India, stated that they have no objection if the reliefs as prayed for by the applicant in 8(i), 8(ii) and 8(iii) are allowed.
4. The respondent No. 2, Union Public Service Commission, by filing separate reply, has denied the allegations made by the applicant. According to respondent No. 2, the applicant was issued with Annexure A/3 allocating tentative allotment of Service (ICAS) and after the final allocation of service, a formal offer of appointment would be sent to him by the concerned Cadre Controlling Authority, and the applicant should send a telegram to the Academy immediately, In absence of any Communication, it would be presumed that the applicant has decided to joint training on the basis of 1992 Examination and accordingly, he would be considered for allotment of service at the time of final service allocation. It is further stated that on the basis of Annexure A/5, the applicant was called upon to intimate that in case he was not interested in the service which was alloted to him, he may decline the offer, by informing the Cadre Controlling Authority concerned, in writing, with copies endorsed to the UPSC, within ten days of receipt of that letter, but the applicant did not intimate any such refusal of Service, that was alloted to him. Vide order dated 27.4.94 (Annexure A/5), final offer of appointment was issued to the applicant. It is stated that later the applicant also sent Annexure A/7 dated 8.6.94 stating that he was not interested in the Service alloted to him. He has done so after filing the application for the preliminary examination, 1994, on 26.1.94. It is further stated that the applicant could not take the preliminary examination, 1994, unless he communicated his refusal and unless his communication is accepted before the last date of filing the application, i.e. on 14.2.1994. Therefore, in terms of Rule 4(b), the applicant was not eligible to take C.S.E., 1994. Learned Counsel for the respondent No. 2 also stated that the Rule 4(b) is valid and in terms of Rule 4(b), the applicant was not eligible to take C.S.E., 1994 and as such there is no illegality or irregularity in the action taken by the respondent No. 2, and accordingly, the applicant is not eligible to any relief as prayed for in this application. They also stated that the validity of the Rule 4(b) has not been challenged and the applicant cannot be allowed to argue on this point at the stage of arguments. At any rate, he submitted that, the Rule 4(b) has already been upheld by the Principal Bench of the C.A.T., New Delhi, vide its judgment/order dated 24.5.95 passed in OA No. 937/95. They also stated that the similar contention urged in that O.A. had been rejected by the Principal Bench of the C.A.T. Therefore, there are no merits in the application and accordingly, the same is liable to be rejected.
5. Both from the pleadings and also from the arguments addressed by the Counsel at the Bar, we find that there are few facts which are admitted in this case. It is admitted that the applicant being declared successful in C.S.E., 1992, was alloted to ICAS tentatively and final service allocation would be made thereafter by issuing formal offer of appointment. It is also admitted that vide Annexure A/3, the applicant was directed to intimate the Cadre Controlling Authority his intention of acceptance of the offer. He was also directed to join foundational course. It is further admitted that according to Annexures A/3 and A/4, in case the applicant did not join the foundational course, it would be presumed that he was not interested to join the service on the basis of C.S.E., 1992. It is also an admitted position that on the representation made by the applicant, the applicant was permitted to abstain from joining foundational course so as to enable him to appear at the C.S.E., 1993, and the applicant was not successful in C.S.E., 1993. The dispute arose between the parties only after UPSC has raised an objection as to eligibility of the applicant in terms of 4(b) of the Rules, stating that the applicant could not take C.S.E., 1994, unless he refused his offer of appointment and the same was accepted before the last date of filing of the application for preliminary Examination, 1994. With reference to this dispute, it is the case of the applicant that on the basis of Annexure A/3 though he was alloted to ICAS, but it was tentative and it was subject to final allocation to be made either to higher or lower Service. Therefore, as on the date of application for preliminary Examination, 1994, in fact, no final allocation was made in his favour. Since there is no final allotment to him, there would not be any necessity of refusal of the allotment of service for filing an application for 1994 Examination. At any rate the applicant stated that, he had sent a communication of refusal vide Annexure A/7 dated 8.6.94 and the same also has been accepted by the Government of India vide Annexure A/3 dated 30.5.1994. Therefore Rule 4(b) is complied with. On the other hand, it is the case of the respondent No. 2 that this refusal and acceptance should necessarily take place before the last date of filing the application for Preliminary Examination, 1994, as statutory pre -condition in terms of Rule 4(b). Since the applicant did not fulfil this statutory condition, he was not eligible to take C.S.E., 1994, either preliminary or final. Having regard to this dispute between the parties, we have to consider the effect of Rule 4(b) of the Rules and its validity and applicability.
6. At the outset, we find that in the application, the applicant has not challenged the validity of Rule 4(b) of the Rules, even though the learned Counsel appearing for him argued that the Rule 4(b) is violative of Articles 14 and 16 of the Constitution. Alternatively, he contended that Rule 4(b) does not apply to the facts of the case, On the other hand, the learned Counsel for the respondent No. 2 contends that the Rule 4(b) is mandatory and it applies to the facts of the case. He stated that the applicant did not refuse the allocation of service nor the same was accepted before filing the application for preliminary C.S.E., 1994. He further submitted that the said Rule is already upheld by the Principal Bench of the C.A.T. vide order dated 24.5.95 passed in O.A. No. 937/95. In order to appreciate the rival contentions of the parties, we think it appropriate to extract the Rule 4(b) as under:--
"A candidate allocated or appointed to the IPS/Group 'A' Service/Post on the basis of the Civil Services Examination held in 1992 or earlier years shall not be eligible to apply for Civil Services (Preliminary) Examination to be held in 1994; unless he first gets his allocation cancelled or resigns from the Service/Post. Note 4 below Rule 4(b) also state that:
For the purpose of Clause (B) of second proviso to this Rule merely writing to the competent authority would not suffice. The candidate should produce documentary proof that his/her offer of allocation has actually been cancelled/resignation has been accepted."
7. From the reading of the above Rule, it is clear that a candidate allocated or appointed to the Group 'A' Service on the basis of the Civil Services Examination held in 1992 or earlier years shall not be eligible to apply for Civil Services (Preliminary) Examination to be held in 1994, unless he first gets his allocation cancelled or resigns from the Service. Note 4 below Rule 4(b) further clarifies that merely writing to the competent authority would not suffice, and the candidate should produce documentary proof that his/her offer of allocation has actually been cancelled or his resignation has been accepted. Thus, the intention of the Rule is that if a person has decided to take Civil Services (Preliminary) Examination, 1994, he should relinquish his earlier post so as to compete with others for fresh appointment on merits. He did not do so presumably with the intention that in case he succeeds in the C.S.E., 1994, then he may choose to get the earlier allocation or appointment cancelled. In fact, this rule was brought into force by way of an amendment after it was noticed that in number of cases, the candidates were adopting this tactics. When a person has already availed of an opportunity of competing for a public employment and if he succeeded in that examination, he should make a way for others to compete for such higher posts in subsequent examinations and in case he wants to take a chance for better career, then he should relinquish the earlier. Thus, the rule make a classification between the candidates, who have not relinquished their earlier posts and the candidates, who have relinquished such posts and ready to face the competition for new and better career. The rule prohibits only those candidates who have not relinquished their earlier posts either by refusing the offer of allocation or by resigning from the post. The object of the rule is to see that the candidates do not adopt a stand of sitting on the fence with one job on hand and trying for the other. The further object of the Rule is that they shall compete with other candidates as freshers without having secured a job in their pocket so that the object of the Articles 14 and 16 of the Constitution are fulfilled by ensuring equal opportunity in the matter of public employment to all. In this view of the matter, we do not find any unreasonableness in the Rules. However, the learned Counsel appearing on behalf of the applicant submitted that this rule makes a classification between the persons who have been given tentative allocation and the persons who have been given permanent allocation. But in our considered opinion, the classification contemplated by the rule is not based on this factor. Rule 4(b) prohibits any person either with temporary allocation of Services or with permanent allocation of Services from taking the Civil Services (Preliminary) Examination, 1994, without getting his offer of allocation cancelled. Therefore, the argument of the learned Counsel for the applicant cannot be countenanced. As contended by the learned Counsel for the respondent No. 2, the validity of this rule has already been upheld by the Principal Bench of the C.A.T., New Delhi vide order dated 24.5.1995 passed in O.A. No. 937/95. In this view of the matter, we do not find any reason to deviate from the views taken by the Principal Bench of the C.A.T.
8. The second contention of the learned Counsel for the applicant is that Rule4(b) does not apply to his case because it was a tentative allocation and there was no permanent allocation. This argument cannot be accepted, as we have already stated, it is not in dispute that the applicant received Annexure A/3, Annexure A/3 clearly states that the applicant has been tentatively allocated to ICAS and final Service allocation would be made after he was found physically fit for appointment and thereafter, a formal offer of appointment be sent to him. From Annexure A/3, it is further clear that the applicant was asked to send his intention whether he was accepting this tentative allocation to ICAS or not and in case he accepts the offer, he was required to join foundational course. It is also not in dispute that on his request, the applicant was permitted to abstain from joining foundational course vide Annexure A/4 dated 28.12.93, so as to enable him to appear at the C.S. (Main) Examination, 1993. Annexure A/4 itself says that "this permission implies that you have accepted the service to which you have been tentatively allocated and/or likely to be allocated finally." Therefore, from the fact that he has been permitted to abstain fromjoining training, it would be clear that the applicant had accepted the Service tentatively allocated to him. Thereafter, vide Annexure A/5 dated 23.2.1994, the Government of India directed the applicant to intimate his final decision regarding the allotment to ICAS to him, within a period of ten days of that letter. We think it appropriate to extract that letter as under :
F.N. 13011/81/93-AIS(I) Government of India Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training New Delhi, the 23rd February, 1994 To Shri Rameshwar Prasad Meena, B-25, Neu-Lite Colony, Tonk Road, Jaipur-302 015.
Subject : Civil Services Examination, 1992--Final allocation of Service.
Sir/Madam, In continuation of this Department's letter N. 11011/27/93AIS(I) dated 14.8.93 intimating the tentative allocation of service and letter N. 13011/62/ 93 AIS(I) dated 28.10.93 granting permission to you under Rule 4 of the C.S.E. Rule, 1992 to abstain from joining probationary raining in order to appear at Civil Service Examinations, 1993, I am directed to inform you that you have been alloted to ICAS on the Basis of C.S.E., 1992.
2. The formal offer of appointment will be sent to you by the Cadre Controlling Authority, in your case the Ministry/Department of Expenditure in due course.
3. In case you are not interested in the service to which you are alloted now, you may decline the offer, by informing the Cadre Controlling Authority con cerned, in writing, with copies endorsed to this Department, as well as the UPSC, within ten days of receipt of this letter. (Emphasis supplied) Yours faithfully, Sd/-
(M.N. Vidyashankar) Under Secretary to the Govt. of India"
9. The applicant has not placed before us any material showing that he declined his tentative allocation of Service to ICAS. The letter Annexure A/5 itself says that in case the applicant was not interested in the Service allocated to him, he can decline the offer, within ten days of receipt of that letter. It is not in dispute that the applicant received the said letter. It is not the case of the applicant that he has communicated his intention of not accepting it, within one week. Meanwhile, the last date for filing the application for C.S. (Preliminary) Examination, 1994 was 14.2,94. From the facts narrated above, it is clear that the applicant did not intimate his refusal even on the basis of the letter dated 23.2.94 (Annexure A/5). But he submitted a representation only on 8.6.94 (Annexure A/7) refusing to accept the tentative allocation, and immediately thereafter, the President of India has accepted his refusal vide Annexure A/2 dated 30.6.1994, i.e. hardly within 22 days. From this, it follows that there was no delay on the part of the Government of India in accepting his refusal. If that is so, the applicant first time refused the offer of allocation of Service as ICAS on 8.6.94 and the same was accepted within one month. On the basis of this, the further consequence would be that as on the date of filing the application (26.1.94) for C.S. (Preliminary) Examination, 1994, or on the last date of application (14.2.94), the applicant did not refuse his tentative allocation to ICAS on the basis of C.S.E., 1992. Therefore he was not eligible to file an application for C.S. (Preliminary) Examination, 1994, on 14.2.94 in terms of 4(b) of the Rules. However, the learned Counsel for the applicant contended that since the allocation of ICAS to the applicant was only tentative, and he was expecting permanent allocation after issuing formal offer of appointment, and, therefore, there was no necessity for him to communicate his refusal before the date of filing the application for C.S. (Preliminary) Examination, 1994. But this contention is not acceptable, as we have already stated, under Rule 4 whether temporary allocation or permanent appointment, both have got to be cancelled so as to eligible for filing an application for C.S. (Preliminary) Examination, 1994. Assuming that the allotment made to the applicant was only tentative, but the same he should have refused before his filing an application for C.S. (Preliminary) Exam., 1994, in terms of Rule 4(b). It is also an admitted fact that vide Annexure A/6 dated 27.4.94, offer of appointment was also issued to the applicant alloting him finally to ICAS on the basis of C.S.E., 1992. At the cost of repetition, we may say that unless the applicant has resigned or got cancelled the allocation of Service or appointment made to him, he could not have filed an application for C.S. (Preliminary) Examination, 1994, on 26.1.1994. The last date of filing the application was 14.2.94. In these circumstances, we have to hold that the decision of the UPSC that the applicant was not eligible to take C.S.E., 1994, is quite legal and valid.
10. The learned Counsel for the applicant submitted that, at any rate, the applicant was permitted to take C.S. (Preliminary) Examination, 1994 and Final Examination, in which he was qualified, and ultimately an objection was raised by the UPSC regarding non-fulfilment of the Rules only during interview. The applicant stated that he has given his refusal regarding allocation to ICAS to him, therefore, the action of the UPSC holding him as ineligible under Rule 4(b) of the Rules to take C.S. (Preliminary) Examination, 1994, is contrary to doctrine of estoppel. This argument of the learned Counsel for the applicant is resisted by the Counsel for respondent No. 2, contending that there can be no estoppel against the statute. There is substance in the argument of the learned Counsel for the respondents. As per Note 4 below Rule 4(b), it has been specifically provided that merely writing to the competent authority expressing the intention of cancellation of allocation or resignation could not be sufficient and the candidate should produce documentary proof that his/her offer of allocation has actually been cancelled or resignation has been accepted. As on the last date of filing the application (14.2.1994), the applicant could not produce any document about his refusal of allocation or resignation, since according to him, for the first time he sent a letter vide Annexure A/7 dated 8.6.94 and another letter (Annexure A/8) dated 30.6.94, intimating that he has not accepted the allocation given to him. From this, it follows that even his refusal is subsequent to the filing of the application and in terms of Rule 4(b), he was required to produce document showing that his request for cancellation of allotment of Service or resignation has been accepted by the Authority. That the applicant has not done. Therefore, the mandate of Rule 4(b) has not been complied with. If that is so, in our considered opinion, the UPSC is perfectly justified in holding that he was not eligible to take C.S. (Preliminary) Examination, 1994. They rightly insisted for production of documents at the time of interview, in terms of Rule 4(b). Therefore, the action of the respondent No. 2 cannot be called in question even on the ground of estoppel. Moreover, there cannot be any estoppel against the statute as per the law laid down by Hon'ble Supreme Court. In coming to the above conclusion, we have kept in view the principles laid down by Hon'ble the Supreme Court in AIR 1976 SC 376 (Shri Krishan v. The Kurukshetra University, Kurukshetra) and AIR 1993 SC 2412 (Gurunanak Dev University v. Rajesh Bhaskar and Anr.).
11. The learned Counsel for the applicant further submits that UPSC is only an Advisory Body or a Consulting Authority and the Government of India, being competent authority, has no objection for allowing this application. He invited our attention to the reply filed by the respondent No. 1, Union of India, stating that respondent No. 1 has no objection for allowing the reliefs as prayed for in 8(i), 8(ii) and 8(iii) of the application. But according to us, as contended by the learned Counsel for the respondent No. 2, the Government of India, respondent No. 1, cannot plead for respondent No. 2, UPSC, which is an independent Constitutional Body. The respondent No. 1 (Union of India) is, on doubt, the competent authority in the matter of employment, but it can do so only in consultation or advice of UPSC. Unless an exception is provided under the Constitution, no appointment to the public services can be made, without following this constitutional requirement. If the UPSC finds any candidate ineligible in terms of Rule 4(b), the Government of India cannot say that he was eligible for the same. Therefore, the respondent No. 1 cannot say that they are ready to appoint a person even though he is not eligible. If an ineligible person is appointed, that would create a situation resulting in infringement of the right of equality in public employment guaranteed under Article 16 of the Constitution, The authorities in the process of appointment shall necessarily keep in view the Articles 14 and 16 of the Constitution while making the appointments to the public service. Therefore, even though the Government of Indiahas no objection for allowing the application, it is not possible for us to allow the application because the same would result in violation of the rules. In the result, we have to hold that the applicant could not take the benefit of his results in the Preliminary and Final C.S. Examination, 1994, since he could not have filed an application for such examination without fulfilling the statutory requirement of Rule 4(b). Therefore, the relief as prayed for by the applicant in paras 8(i) and 8(ii) cannot be granted.
12. Taking up the third relief whether the applicant may be granted any appropriate order or direction, which is necessary to secure ends of justice, we consider the case with a different angle keeping in view of the consent reply on behalf of the Governmentof India.
13. On the basis of the letters of the applicant dated 8.6.94 (Annexure A/7 and dated 3.6.94 (Annexure A/8), the Government of India have accepted the refusal of offer of appointment and also the allocation to ICAS on the basis of C.S.E., 1992, vide Annexure A/2. Accordingly, the applicant would be loosing his allocation of Service and appointment to ICAS. If that is so, on the basis of our conclusion, if the application is dismissed in toto, it may result in injustice to him. Keeping in view that he is an young man with good prospects in future, we think it appropriate to quash the order Annexure A/2 dated 30.6.94, presuming that in all probability, he was not properly advised to cancel his allocation to ICAS or resign from the post. In a situation of this type, in which the applicant would lose his appointment, which he got on the basis of Annexure A/3 and A/6, expecting that without finding any other job, the applicant perhaps now wishes to serve as ICAS on the basis of C.S.E., 1992, we think it appropriate to pass the order as under:
14. The application is dismissed regarding the prayers 8(i) and 8(ii) and conceding the relief as prayed for in para 8(iii), we quash the order of Government of India dated 30.6.94 (Annexure A/2) by which his refusal was accepted treating his appointment to ICAS as cancelled. Consequently, we direct the respondent No. 1 Union of India, to allot and appoint the applicant to ICAS on the basis of Civil Service Main Examination, 1992, if the applicant makes a representation to that effect within a period of one month from today. In case of his failure to make such a representation expressing his intention to accept Indian Civil Accounts Service on the basis of C.S.E., 1992, it shall be taken that even this relief is not granted to him. No costs.