Delhi High Court
Pemba T. Bhutia vs Union Of India & Anr. on 11 July, 2008
Author: Vipin Sanghi
* HIGH COURT OF DELHI : NEW DELHI
Judgment reserved on: 19.11.2007
Judgment delivered on: 11.07.2008
+ W.P. (C) No. 5129/1999
% Pemba T. Bhutia ..... Petitioner
Through: Mr. M. Datta, Advocate
versus
Union of India & Anr. ..... Respondent
Through: Ms. Monika Garg, Advocate
CORAM:
HON'BLE MR.JUSTICE A.K.SIKRI
HON'BLE MR. JUSTICE VIPIN SANGHI
1. Whether the Reporters of local papers may
be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
VIPIN SANGHI, J.
1. The validity of Rule 18 of the Civil Services Examination
Rules, 1996 (CSER, 1996) as notified vide Department of Personnel &
Training (DOPT), Ministry of Personnel, Public Grievances and Pensions,
Govt. of India vide notification dated 14.12.1996 bearing
No.13018/8/96-AIS(I), applicable for the Civil Services (Main)
Examination held in 1997 (CSE 1997) is in question in the present
petition filed under Article 226 of the Constitution of India.
WP(C) No.5129/1999 page 1 of 50
2. Each year the Union Public Service Commission holds Civil
Services Examinations to select candidates to fill up vacancies/posts
for various Central Governments services such as IAS, IFS, IPS and a
number of Group `A' and Group`B' services/posts. The Rules for the
conduct of the examinations which are statutory in nature are notified
each year. The present scheme of examination, known as Civil
Services Examination, (CSE in short) was introduced in 1979. The Civil
Services Examination is conducted in two successive stages as
indicated below.
(i) Civil Service (Preliminary) Examination (objective type) for
selection of candidates for the Main Examination.
(ii) Civil Services (Main) Examination (written and interview
test) for selection of candidates for appointment to various
services.
3. The petitioner who belongs to the Schedule Tribe category,
appeared in the Central Services Examination, 1996 (hereinaftaer
referred to as CSE 1996, though we may add that the Tribunal has
nomenclatured it as CSE 1995). CSE 1996 was held on the basis of the
Civil Services Examination Rules, 1995 (CSER 1995) notified by the
DOPT vide notification dated 9.12.1995 bearing No.13018/11/95/-
AIS(I). He secured 638th rank in the overall final grading. The
petitioner had in terms of Rule 2 of the CSER 1995 given his option for
12 services in order of his preference against 27 services/posts
WP(C) No.5129/1999 page 2 of 50
including Group `A' and Group `B' services which were on offer. Rule 2
of CSER, 1995 reads as follows:
"2. A candidate shall be required to indicate in
his/her form for the Main Examination his/her
order of preferences for various services posts
for which he/she would like to be considered for
appointment in case he/she is recommended for
appointment by Union Public Service
Commission.
A candidate who wishes to be considered for
IAS/IPS shall be required to indicate in his/her
application if he/she would like to be considered
for allotment to the State to which he/she
belongs in case he/she is appointed to the
IAS/IPS.
No request for revision, alteration or change in
the preferences indicated by a candidate in
respect of services/posts for which he/she would
be like to be considered for allotment would be
considered unless the request for such
alteration, revision or change is received in the
office of the Union Public Service Commission
within thirty (30) days of the date of publication
of the results of the written part of the Main
Examination in the `Employment News'. No
communication either from the Commission or
from the Govt. of India would be sent to the
candidates asking them to indicate their revised
preference if any for the various services after
they have submitted their applications.
Note.- The candidate is advised to indicate all
the services/posts in the order of preference in
his/her application form. In case he/she does
not give any preference for any service/post, or
does not include certain services/posts in the
application form, it will be assumed that he/she
has no specific preference for those
services/posts, and in that event he/she shall be
allotted to any of the remaining services/posts
in which there are vacancies after allocation of
all candidates who have expressed preference
for all the services/posts, according to their
WP(C) No.5129/1999 page 3 of 50
rank."
4. As would be seen from the aforesaid Rule, it was
permissible for the candidates to change their preferences within 30
days of the declaration of the results of the Main Examination.
The options given by the petitioner were as follows:
1. I.A.S 7. CAS
2. I.P.S 8.PONDI(CIVIL)
3. IC & CES 9.CBI (GR.B)
4. I.R.S 10. C.S.S.
5. DANICS 11. A.F.M.Q.
6.DANICS(P) 12. R.B.S.S.
According to his rank in CSE 1996 he was allocated to the Central
Secretariat Services (CSS), Group `B' service, which was his 10th
preference.
5. Rule 4 of CSER 1995 prescribed number of attempts that a
candidate could make at the Civil Services Examinations. While four
attempts were permitted to general category candidates, for the
Scheduled Caste and Scheduled Tribe candidates there was no
restriction on the number of attempts that they could make, provided
they were otherwise eligible. Vide letter dated 11.2.1997 the
petitioner was given an offer of appointment. The petitioner was
informed that in case he proposed to appear in the Civil Services
Examination, 1997, (CSE 1997) while retaining his allocation to CSS
Group`B' service he should apply for permission to appear in the said
examination.
WP(C) No.5129/1999 page 4 of 50
6. The petitioner sought, and was granted permission to again
appear in CSE 1997 to try and improve his rank. He availed of this
opportunity. In the CSE 1997, the petitioner secured 564th rank.
Consequently he improved his rank by 74 points. CSE 1997 was
conducted on the basis of CSER 1996.
7. Rule 2 of CSER 1996 required the candidates to indicate
their preference for various services/posts for which they would like to
be considered for appointment. Rule 2 of CSER 1996 reads as follows:
"2. A candidate shall be required to indicate in his/her
application form for the Main Examination his/her
order of preferences for various services/posts for
which he/she would like to be considered for
appointment in case he/she is recommended for
appointment by Union Public Service Commission.
A candidate who wishes to be considered for
IAS/IPS shall be required to indicate in his/her
application if he/she would like to be considered for
allotment to the State to which he/she belongs in
case he/she is appointed to the IAS/IPS.
NOTE.- The candidate is advised to be very careful
while indicating preferences for various
services/posts. In this connection attention is also
invited to Rule 18 of the Rules. The candidate is also
advised to indicate all the services/posts in the order
of preference in his/her application form. In case
he/she does not give any preference for any
services/posts, it will be assumed that he/she has no
specific preference for those services. If he/she has
indicated preference, he/she shall be allotted to any
of the remaining services/posts in which there are
vacancies after allocation of all the candidates who
can be allocated to a service/post in accordance with
their preference."
8. The options/preferences given by the petitioner while
WP(C) No.5129/1999 page 5 of 50
appearing in CSE, 1997 were the following:
1.IAS 9. ITS 17. IDAS
2.IPS 10. IRTS 18. IIS
3.IFS 11. IAAS 19. I. POSTAL
4.IC & CES 12. IRAS 20. IOFS
5.IRS 13. CBI (Dy. Supdt.) 21. RPF
6.DANICS @ 14. IRPS 22. CISF
7.DANICS (P) 15. IP & TFAS 23. PONDICHERRY(A)
8.CAS 16. ICAS 24. PONDICHERRY (P)
25. IDES
9. It appears that even though the allocation of service in
respect of the petitioner had not been finalised on the basis of his
result in CSE 1997, the petitioner filed OA No.1423 of 1998 before the
Central Administrative Tribunal, Principal Bench, New Delhi (The
Tribunal), as he apprehended that he would not be allocated the
services for which he was entitled as per his rank and as per his
preferences given at the time of taking CSE 1997, and that he would
be bound down to the preferences given by him while taking CSE,
1996. The apprehension of the petitioner was based upon a reading of
the impugned Rule 18 of CSER 1996, which reads as follows:
"18. Due consideration will be given at the
time of making allocation, on the results of the
examination to the preferences expressed by a
candidate for various services at the time of
his application. The appointment to various
services will also be governed by the
Rules/Regulations in force as applicable to the
respective Services at the time of
appointment.
Provided that a candidate who has
accepted the allocation to a service on
the basis of an earlier examination shall
WP(C) No.5129/1999 page 6 of 50
be eligible on the basis of this
examination to be allocated only to those
service(s)/post(s) which were higher in
the order of preference in his/her
application form for the examination on
the basis of which he/she had been last
allocated to a service."(emphasis supplied)
10. This apprehension of the petitioner came true , when the
respondent in their counter affidavit filed before the Tribunal disclosed
that in terms of Rule 18 of CSER 1996 he had been allocated to a
Group `B' service viz. Pondicherry Police Service. The grievance of the
petitioner was that despite a quantum jump in his rank as aforesaid, he
was not given any benefit of the said improvement. By applying Rule
18 of CSER 1996 to his case, the right given to him under the Rule 18
of CSER 1995, which was applicable when he initially appeared in CSE
1996, and which gave him the right to give fresh options on each
occasion that he took the CSE for improving his rank was curtailed and
he was bound down to the preference list initially submitted by him
when he took CSE 1996. It is argued that if the petitioner is allocated
a service on the basis of his improved rank and the choice of services
submitted again by him prior to taking the CSE 1997, he would be
entitled to a Group `A' service.
11. The submission of the petitioner before the Tribunal, as
well as before us is that the effect of the impugned Rule 18 of the
CSER 1996 was that; (a) he could be considered only qua his choices
of services as mentioned by him in the form filled by him for CSE
WP(C) No.5129/1999 page 7 of 50
1996; (b) even though on the basis of his rank in the CSE 1997 he
could qualify for the various services given in his preferences while
filling the form for CSE 1996, since there were no reserved vacancies
for those services, he could not be allocated to those services. The
said services were:
I. DANICS
II. DANIPS
III. CAS
IV. PONDICHERRY (CS)
V. CBI (Group A);
(c) even though the petitioner was eligible for Group `A' services on
the basis of his rank in CSE 1997, he is confined to a service which is
virtually at the bottom of the list of preferences.
12. The petitioner also argued that impugned Rule 18 is
antithetic to the objectives of the Civil Services Examination and the
purpose it seeks to serve. The concept of improvement in his ranking
by a candidate, by making successive attempts is inherently
recognised within the Civil Services Rules and any Rule that prevents
improvement on the basis of merit, performance and labour is ultra
vires the provisions of the Civil Services Rules and thus liable to be
struck down.
13. The petitioner further submitted that Rule 18 of CSER
1996 virtually deprives a successful candidate of a previous
examination from opting for a fresh service/post that has been
WP(C) No.5129/1999 page 8 of 50
included in the list of services on offer in the subsequent examination,
or for opting for a service which has been subsequently elevated from
a lower to a higher group. For instance, the petitioner submitted that
he was deprived of opting for Pondicherry Police Services which did not
figure in the list of preferences submitted in respect of CSE 1996, since
the service was not included by then as a Central Service, or the post
of Deputy Superintendent of Police CBI which had been subsequently
elevated from Group `B' to Group `A' services. He argued that a
candidate may, while giving his preferences for a particular CSE, be
swayed by various considerations, such as the grouping of a service,
its popularity at a given time, the future prospects in the particular
service etc. These are imponderables which keep fluctuating and
which govern the preferences that any candidate may give for a
particular CSE.
14. Further, it is argued that by enforcing Rule 18 of CSER
1996 in respect of the petitioner, the respondent is depriving the
petitioner of his "vested right" i.e. the right to give a fresh list of
preferences/choices of services/posts at the time of applying for taking
the examination for improvement, which was available to the
petitioner under Rule 18 of CSER 1995. This tantamounts to giving
retrospective effect to Rule 18 of CSER 1996, which could not be done.
In support of this submission, the petitioner relied on a few Supreme
Court decisions, to which reference would be made a little later. It is
WP(C) No.5129/1999 page 9 of 50
further averred that the petitioner cannot be made liable for the effect
of the amended Rule 18 as it is highly inconceivable that the petitioner
could have foreseen the amendment in Rule 18 from CSE 1997
onwards and its effect, and thus would have filled up all the available
services/posts in his preference list, which he filled up in 1996 for CSE
1996. The petitioner filled up the preference list in respect of CSE
1996 keeping in view the circumstances prevailing at that time. The
unamended Rule 18 permitted all the candidates to furnish a fresh
preference list every time the candidate makes a fresh attempt to
improve his rank while retaining the allocation made in the earlier CSE.
Accordingly, the petitioner filled up the posts that he was most likely to
get by keeping in view his preparation for the CSE 1996, and the then
prevailing Rule 18, which banned mobility within the groups. If the
said amended Rule 18 is applied to the petitioner, it would result in
arbitrariness and discrimination, inasmuch as, 15 S.T. candidates
having lower rank than that of petitioner in CSE 1997 have been
allocated higher services/posts than the petitioner. It was, therefore,
argued that the impugned Rule 18 of CSER 1996 was discriminatory,
arbitrary and violative of the petitioner's fundamental rights under
Articles 14 and 16 of the Constitution of India and thus liable to be
struck down. The petitioner also submitted that he had the legitimate
expectation, in view of the then prevailing Rule 18 of CSER 1995, that
he would be entitled to submit his fresh preferences in case the need
for him to take the CSE once again arose for improving his ranking
WP(C) No.5129/1999 page 10 of 50
while retaining the allocation made on the basis of CSE 1996, and that
the subsequent preference list would be the one taken into
consideration while making allocation to a service/post based on the
ranking of the petitioner in CSE 1997. This had been the consistent
practice when the unamended Rule 18 held sway for many years.
Therefore, it was not considered necessary to indicate all the
posts/services in the list of preferences when the petitioner give the
list before taking the CSE 1996.
15. Before the Tribunal the respondents disclosed that the
petitioner had been allocated to a Group `B' service viz. Pondicherry
Police Services in accordance with his rank and the preferences as
listed by him for CSE 1997. This service was at Sl. No.24 of the
Preference List submitted by petitioner before taking CSE 1997. The
submission of the respondent before the Tribunal was, and before us
as well as is that Rule 18 of the Civil Services Examination Rules had
been amended vide CSER 1996 for the Civil Services Examination held
in 1997. Rule 18 as it existed upto CSER 1995, applicable to CSE
1996 read as follows:
"18. Due consideration will be given at the time
of making appointments on the results of the
examination to the preferences expressed by a
candidate for various services at the time of
his application. The appointment to various
services will also be governed by the
Rules/Regulations in force as applicable to the
respective Services at the time of appointment.
WP(C) No.5129/1999 page 11 of 50
Provided that a candidate who has been
approved for appointment to Indian Police
Service/Central Services, Group `A' including the
posts of Asstt. Security officer in R.P.F and Asstt.
Commandant in C.I.S.F mentioned in Col.2 below on
the results of an earlier examination will be
considered only for appointment to services
mentioned against that service in Col.3 below on
the results of this examination.
_____________________________________________________
Sl.No. Service to which Service to which eligible to
approved for appointment compete
1. Indian Police Service I.A.S., I.F.S and Central
Services, Group`A'
including R.P.F and C.I.S.F,
2. Central Services, I.A.S., I.F.S and I.PS.
Group `A' including
R.P.F and C.I.S.F.
_______________________________________________________________
Provided further that a candidate who is appointed
to a Central Service, Group 'B' including posts of
Deputy Superintendent of Police in C.B.I on the
results of an earlier examination will be considered
only for appointment to IAS, IFS, IPS and Central
Services, Group `A' including R.P.F and C.I.S.F."
(emphasis supplied)
16. The respondent submitted that the amended Rule 18 as
contained in CSER 1996 was an improvement of the earlier Rule 18
which barred intra Group movement within Group `A' and Group `B'
services/posts. Earlier a candidate who had been allocated for
appointment to a Group `A' service/post on the result of an earlier
examination was not allowed to compete for any other Group `A'
services/posts and he could be considered only for IAS, IFS and IPS.
WP(C) No.5129/1999 page 12 of 50
Similarly, a candidate who had been allocated for appointment to a
Group `B' service/post as a result of an earlier examination was not
allowed to compete for any of the Group `B' services or posts, and he
could be considered only for IAS, IFS and IPS and Group `A' services or
posts. But with the amendment of Rule 18 coming into operation with
CSER 1996, this restriction had been lifted and another restriction put
that a candidate who has accepted the allocation to a service on the
basis of an earlier examination shall be eligible to be allocated only to
those services/posts, which are higher in the order of preferences in
his application for the examination on the basis of which he had been
allocated to a service. The respondents further argued that Rule 2 of
CSER 1996 cautioned the candidate to be careful while filing the list of
preferences/choices of posts. The petitioner should have been careful
and should have filled all the posts in his list of preferences, and now
he cannot blame the respondents for his omissions. Further it is
argued that while making allocation of services on the basis of CSE
1997, all the eventualities as indicated by the petitioner were taken
care of. The candidates were considered for allocation to those
services also which were either earlier enjoying lower status and were
subsequently upgraded, or were not at all figuring in the list of services
for which the examination was being held. An instant example is that
of the petitioner himself. The respondent conceded that the
Pondicherry Police Service did not figure in the list of services for which
CSE 1996 was held. But it was one of the services included in CSE
WP(C) No.5129/1999 page 13 of 50
1997 for which also the petitioner was a candidate. He had been
considered and allocated to this service on the basis of CSE 1997
because he had included it in his list of preferences when applying for
CSE 1997.
17. As regards the petitioners contention that the Rule 18 of
the CSER 1996 cannot work retrospectively, it is submitted that the
said Rules were notified in the Gazette Notification No.13018-8-96
dated 14th December 1996 prior to the commencement of CSE 1997,
and the petitioner had enough time to go through the examination
rules. The petitioner was free to either retain the CSS alloted to him on
the basis of CSE 1996 and compete for the limited number of services
in CSE 1997 as restricted by Rule 18 of CSER 1996, or to resign from
CSS and compete for all services as an open market candidate in CSE
1997. It was also argued that the impugned Rule 18 of CSE 1996 was
not given retrospective effect since it applied to candidates taking CSE
1997. The respondent placed reliance on Punjab University v.
Subhash Chander & Anr. (1984) 3 SCC 603 in support of this
submission.
18. The respondent relied upon the decision of the Supreme
Court in Birendra Kumar Nigam & Ors. v. UOI WP No.220 to 222 of
1963 decided on 13.3.1964 to urge that the Central Government had
the power to impose restrictions on its employees to compete for other
services. It was also argued that vires of Rule 18 as it existed in CSER
WP(C) No.5129/1999 page 14 of 50
1995, which imposes a total ban of movement from one Group `A'
service to another Group `A' service, and from one Group `B' service to
another Group `B' service had been upheld by the High Court of
Allahabad in CMWP No.11743 of 1982 Ravindra Prasad Singh vs.
UOI. It was argued that candidates like the petitioner, who had
earlier appeared in the CSE and had been made an allocation of a
service/post, and while retaining that allocation in the earlier
examination process had again participated in a subsequent CSE to
improve their ranking, formed a different class from the open market
candidates who were appearing in the examination without any prior
allocation. It was argued that the Government was entitled to put
restrictions on the class to which the petitioner belongs, for example,
by allowing them to compete only for limited number of service/posts
and that such a classification is based on reasonable grounds. The
respondent also relies on the decision in the case Mohan Kumar
Singhania v. Union of India 1992 Supp(1) SCC 594.
19. The Tribunal in its impugned order held that the petitioner
cannot be treated at par with the outside/open market candidates.
The two formed different classes and could be treated differently.
Thus, it held that the amended Rule 18 cannot be said to be arbitrary
and contrary to Article 14 and 16(1) of the constitution. The Tribunal
also placed reliance on Birendra Kumar Nigam (supra) and held that
the government can make the rules to meet the exigencies and the
WP(C) No.5129/1999 page 15 of 50
same cannot be put to question. The relevant extract from the
impugned order reads as under:
"10. The applicant having been allotted to CSS
Group 'B' on the basis of CSE 1995 cannot also
be considered on par with other candidates
from the open market who are appearing in the
CSE for the first time in 1997 as they are
separate and distinguishable categories.
However, since both these examinations have
been held for the purpose of filling vacancies in
Central Services, the Rules have to be read
together. To this extent Rule 18 of CSE 1997
takes into account the results of the candidates
who had appeared in the previous examination
held in 1995 which they were well aware of
before they sat in the examination. Therefore
Rule 18, as amended, by Notification of
14.12.96 is not invalid as affecting any vested
rights retrospectively as contended by Shri
Mehra, learned counsel. The applicant had the
option to choose whether he retained his
allocation to the CSS as per the CSE 1995 or
wanted to appear as a fresh candidate for CSE
1997. He chose the former course and he
cannot, therefore, complain if respondents take
further action in terms of Rule 18 as amended.
The fact that he has already been appointed to
CSS on the basis of CSE 1995 cannot be
ignored nor can he be considered as a fresh
candidate for CSE, 1997 as these Rules have to
be read together harmoniously. Accordingly,
we do not find any legal infirmity in Rule 18 as
amended which lays down the method for
allotment of a service to the candidates who
have already accepted the previous allocation
of services/posts through an earlier
examination as in the case of the applicant.
Therefore, the contention of the learned
counsel for the applicant that Rule 18 as
amended is unconstitutional and discriminatory
is without any basis and is accordingly
rejected."
WP(C) No.5129/1999 page 16 of 50
20. The Tribunal also held that the appointment of the
petitioner to Pondicherry Police Services was incorrect as the said
service was not mentioned in the list of preferences given by the
petitioner at the time of taking CSE 1996 and thus the petitioner
cannot be appointed at the said post. The Tribunal directed the
respondents to appoint the petitioner in accordance with the suitability
of the petitioner by taking the first preference list into account and
communicate the allocation to the petitioner. Accordingly, the
respondents, in compliance of the impugned order issued an order
dated 13.07.1999 withdrawing the allocation of the petitioner to
Pondicherry Police Service.
21. A perusal of CSER 1995 shows that the said Rules do not
by themselves contain any provision which could be said to vest the
candidates who have appeared in CSE 1996 like the petitioner, with
the right to retain the allocation of service/post made to them on the
basis of CSE 1996, and to take the subsequent examination, namely,
CSE 1997 for the purpose of improving their ranking. Rule 4 of CSER
1995 which talks about the number of attempts that a candidate can
make at the Civil Services Examination in the third proviso state:
"Provided further that:- (a) A candidate allocated to the IPS or a
Central Service, Group `A' on the results of the Civil Services
Examination, 1995 shall be eligible to appear at the examination
WP(C) No.5129/1999 page 17 of 50
being held in 1996 only if he has obtained permission from Govt. to
abstain from probationary training in order to so appear. If in terms of
the provisions contained in Rule 18, such a candidate is allocated to
a Service on the basis of the examination being held in 1996, he
shall join either that service or the Service to which he was
allocated on the basis of the Civil Services Examination, 1995
failing which his allocation to the Service based on one or both the
examinations as the case may be, shall stand cancelled; and (b) A
candidate allocated or appointed to the IPS Group `A' service/post on
the basis of the Civil Services Examination held in 1994 or earlier years
shall not be eligible to apply for admission to the Civil Services (Main)
Examination to be held in 1996; unless he first gets his allocation
cancelled or resigns from the service/post." (emphasis supplied). It
appears that the said Rule does not create, by itself, any right in a
candidate appearing as an open market candidate in CSE, 1996 (such
as the petitioner), to appear in the subsequent examination i.e. CSE
1997 for the purpose of improving his rank while retaining the
allocation made on the basis of CSE 1996. The petitioner was not a
candidate who had been allocated to the IPS or a Central Service
Group `A' on the results of the Civil Services Examination, 1995.
Therefore, there was no "vested right" created by CSER 1995 in the
petitioner to retain his allocation made to CSS on the basis of CSE 1996
and to take CSE 1997 with that allocation. Rule 18 of CSER 1995 also
uses the expression "Provided that a candidate who has been
WP(C) No.5129/1999 page 18 of 50
approved for appointment............... on the results of an
earlier examination will be considered only for appointment to
services.............., on the results of this examination". This
clearly shows that Rule 18 of CSER 1995 by itself did not vest any right
in the petitioner to seek improvement at a subsequent CSE while
retaining the allocation of service/post made on the basis of CSE 1996,
since the said Rule was meant for application to those candidates who
had appeared in the previous examination, and had been allocated to
a service and were appearing in CSE 1996 while retaining that
allocation. We, therefore, do not accept the contention of the
petitioner that the petitioner had any vested right either by virtue of
Rule 4 or Rule 18 of CSER 1995, to retain the allocation made on the
basis of CSER 1996 and to appear in CSE 1997, or to seek a fresh
allocation in accordance with Rule 18 of CSER 1995.
22. We are also not impressed by the argument of the
petitioner that the Rule 18 of CSER 1996 operates retrospectively. The
said Rule operated in respect of candidates who applied for appearing
in CSE 1997. The scheme of examination i.e. CSE, which has been
adopted by the Government since 1979 appears to be that for the CSE
to be conducted each year, a set of rules is notified by the Government
each year in advance, and the candidates take the CSE each year in
accordance with the notified Rules for that particular examination.
These Rules prescribe the conditions applicable to the particular CSE
WP(C) No.5129/1999 page 19 of 50
only, and do not prescribe conditions applicable to similar
examinations to be held in future. Therefore, though the past
performance and attempts of a candidate have a bearing on the
particular CSE that he appears in or aspires to appear in, the Rules do
not provide for any protection of rights that may accrue on the basis of
an earlier CSE result in favour of a candidate. The right/opportunity
given to the petitioner to reappear in CSE 1997, while preserving his
allocation to CSS on the basis of his result in CSE 1996 cannot be
traced to CSER 1995. In fact that right emanates from the offer made
by the respondent vide their letter dated 11.2.1997, which was
accepted by the petitioner. We are also reaffirmed in our view on the
basis of the decision of the Supreme Court in Punjab University
(supra). In this case, the respondent had joined the M.B.B.S. Course in
the year 1965. Regulation 25 of Punjab University prescribed the
minimum pass percentage as 50%. Rule 7.1 relating to M.B.B.S.
Course permitted grant of grace marks upto 1% of the total aggregate
marks in one or more papers in certain situations to enable the student
to pass the examination. This Rule was, however, amended vide an
exception to Rule 21 to the disadvantage of the students by limiting its
applicability. The respondent appeared in the final M.B.B.S.
examination in 1974. He failed despite being granted grace marks as
per Exception to Rule 2.1 A. However, if the earlier Rule 7.1 were to
be made applicable to his case, he would have passed. He, therefore,
sought application of the original Rule 7.1 to his case and urged that
WP(C) No.5129/1999 page 20 of 50
the amended Rule could not be given retrospective effect. The
Supreme Court rejected the contention of the respondent that the
amended Rule had retrospective effect. The Court held: -
"We do not agree with the learned Judges of
the Full Bench of the High Court that there is
any element of retrospectivity in the change
brought about by the addition pf the exception
to Rule 2.1 of the Calender for the year 1970.
"Retrospective" according to the Shorter
Oxford English Dictionary, Third Edition, in
relation to Statutes etc. means "Operative with
regard to past time". The change brought
about by the addition of the exception to Rule
2.1 does not say that it shall be operative with
effect from any earlier date. It is obviously
prospective. It is not possible to hold that it is
retrospective in operation merely because
though introduced in 1970 it was applied to
Subash Chander, respondent 1, who appeared
for the final examination in 1974, after he had
joined the course earlier in 1965. No promise
was made or could be deemed to have been
made to him at the time of his admission in
1965 that there will be no alteration of the rule
or regulation in regard to the percentage of
marks required for passing any examination or
award of grace marks and that the rules
relating there to which were in force at the
time of his admission would continue to be
applied to him until he finished his whole
course. In the Calendar for 1979 we find the
following at page 1:
Notwithstanding the integrated nature of
a course spread over more than one
academic year, the regulations in force at
the time a student joins a course shall
hold good only for the examinations held
during or at the end of the academic year.
Nothing in these regulations shall be
deemed to debar the University from
amending the regulations subsequently
and the amended regulations, if any, shall
WP(C) No.5129/1999 page 21 of 50
apply to all students whether old or new."
23. Therefore, we reject the submissions of the petitioner that
by virtue of CSER 1995 he had any vested right to reappear in CSE
1997, while preserving his allocation of CSS on the basis of CSE 1996;
he had the right to give a fresh preference list of services/posts in
respect of CSE 1997; he had the right to be considered in the matter of
allocation of service/post on the basis of the preference list submitted
while taking the CSE 1997, and; that Rule 18 of CSER 1996 had
retrospective application.
24. The decisions of the Supreme Court relied upon by the
petitioner in support of his argument founded upon the so called
retrospective operation of Rule 18 of CSER 1996, viz U.O.I. v. Tushar
Ranjan Mohanty & Ors. (1994) 5 SCC 450, K. Narayanan & Ors.
v. State of Karnataka, 1994 Supp (1) SCC 44, R. Rajagopal Reddy
(Dead) by LR & Ors. v. Padmini Chandrasekharan (Dead) by
LRs, (1995) 2 SCC 630, and, Chairman Railway Board & Ors. v.
C.R. Rangadhamiah & Ors. (1997) 6 SCC 623 have no application in
the facts of the present case, since all of them except R. Rajagopal
Reddy (supra) deal with service rules which were expressly given
retrospective effect. In the present case, since no retrospective effect
has been given to Rule 18 of CSER 1996 these decision have no
bearing in the present case. So far as R. Rajagopal Reddy (supra) is
concerned, it is a decision under the Benami Transactions (Prohibition)
WP(C) No.5129/1999 page 22 of 50
Act, 1968. The Supreme Court in this decision held that the bar
created by Section 4(1) of the said Act was prospective i.e. it did not
apply to pending suits. The Court held that the legislature had not
expressly given retrospective effect to Section 4(1). To construe to said
section as having retrospective effect would run counter to the
legislative intent. This decision also, does not advance the submission
of the petitioner.
25. The decision of the Supreme Court in Chandraprakash
Madhav Rao Dadwa v. UOI (1998) 8 SCC 154 relied upon by the
petitioner also has no relevance to the facts of the present case. In
Chandraprakash Madhav Rao Dadwa (supra) the Data Processing
Assistants appointed in 1978, whose promotional post was Data
Processing Supervisors, were sought to be redesignated as Data Entry
Operators Grade B. (1350-2200). They challenged the same and
demanded that they be designated as Data Processing Assistants 'A'
(1600-2660). The Government justified the said redesignation and
fixation of the pay scale on the ground that in pursuance of the
Sheshagiri Committees Report, there was a change in the essential
qualifications for appointment as Data Processing Assistants 'A', and
additional functions were now required to be performed by Data
Processing Assistants `A' (1600-2660).
26. The Supreme Court did not accept the stand of the
Government and held that the change in the essential qualifications or
WP(C) No.5129/1999 page 23 of 50
the additional functions now required to be performed by the
appellants could not retrospectively affect the initial recruitment of
the appellants as Data Process Assistants, no effect their Confirmation
as Data Processing Assistants done in 1989. Recruitment qualifications
could not be altered or applied with retrospective effect. The changes
in the qualifications for recruitment could be made effective for future
recruitment processes, but could not affect those who were already
recruited. To apply the changed recruitment qualifications
retrospectively would be arbitrary and violative of Articles 14 and 16 of
the Constitution. Once again, we do not appreciate how this decision
has any applicability in the facts of the present case. The petitioners,
as aforesaid, under the CSER 1995 did not get any vested right to be
granted permission to reappear in CSE 1997 while retaining the
allocation made on the basis of CSE 1996. CSER 1996 did not have
any retrospective operation either. We, therefore, reject this
submission of the petitioner.
27. However, the argument of the petitioner that the
petitioner had a legitimate expectation that he would be entitled to
give a fresh list of preferences while taking the subsequent CSE, in our
view, needs closer examination. Admittedly, year after year, CSE has
been conducted with more or less the same set of Rules. When the
petitioner applied for taking CSE 1996, admittedly Rule 18, as it was
contained in CSER 1995 had been substantially and consistently
WP(C) No.5129/1999 page 24 of 50
applied since the past, though its location and numbering in the CSER
may have charged from time to time. Therefore, though CSER 1995
did not by itself vest any right in a candidate applying to take CSE
1996 to retake the CSE in the following years while retaining his/her
allocation on the basis of CSE 1996, it is argued that the candidates
did have a legitimate expectation that they would be given the
opportunity to improve their ranking in the following CSE, while
retaining their allocation made on the basis of their result in the earlier
CSE. This expectation also come true when the petitioner was given
the option by the respondent vide their letter dated 11.2.1997.
28. At this stage it would be worthwhile to state what is the
scope and meaning of the principle of legitimate expectation and in
what situations it can be invoked in a given case. The Supreme Court
has considered the scope and meaning of this principle in various
decisions. In Ram Parvesh Singh & Others v. State of Bihar &
Ors. (2006) 8 SCC 381, the Supreme Court discussed this principle by
referring to its earlier decisions in the following words:-
"What is legitimate expectation? Obviously, it
is not a legal right. It is an expectation of a
benefit, relief or remedy, that may ordinarily
flow from a promise or established practice.
The term 'established practice' refers to a
regular, consistent predictable and certain
conduct, process or activity of the decision-
making authority. The expectation should be
legitimate, that is, reasonable, logical and
valid. Any expectation which is based on
sporadic or casual or random acts, or which is
WP(C) No.5129/1999 page 25 of 50
unreasonable, illogical or invalid cannot be a
legitimate expectation. Not being a right, it is
not enforceable as such. It is a concept
fashioned by courts, for judicial review of
administrative action. It is procedural in
character based on the requirement of a higher
degree of fairness in administrative action, as a
consequence of the promise made, or practice
established. In short, a person can be said to
have a 'legitimate expectation' of a particular
treatment, if any representation or promise is
made by an authority, either expressly or
impliedly, or if the regular and consistent past
practice of the authority gives room for such
expectation in the normal course. As a ground
for relief, the efficacy of the doctrine is rather
weak as its slot is just above 'fairness in action'
but far below 'promissory estoppel'. It may only
entitle an expectant : (a) to an opportunity to
show cause before the expectation is dashed;
or (b) to an explanation as to the cause for
denial. In appropriate cases, courts may grant
a direction requiring the Authority to follow the
promised procedure or established practice. A
legitimate expectation, even when made out,
does not always entitle the expectant to a
relief. Public interest, change in policy, conduct
of the expectant or any other valid or bonafide
reason given by the decision-maker, may be
sufficient to negative the 'legitimate
expectation'. The doctrine of legitimate
expectation based on established practice (as
contrasted from legitimate expectation based
on a promise), can be invoked only by
someone who has dealings or transactions or
negotiations with an authority, on which such
established practice has a bearing, or by
someone who has a recognized legal
relationship with the authority. A total stranger
unconnected with the authority or a person
who had no previous dealings with the
authority and who has not entered into any
transaction or negotiations with the authority,
cannot invoke the doctrine of legitimate
expectation, merely on the ground that the
authority has a general obligation to act fairly."
WP(C) No.5129/1999 page 26 of 50
29. The Supreme Court referred to its earlier decision in
Union of India v. Hindustan Development Corporation (1993) 3
SCC 499, wherein the Court has, inter alia, held: -
"It is generally agreed that legitimate
expectation gives the applicant sufficient locus
standi for judicial review and that the doctrine
of legitimate expectation is to be confined
mostly to right of a fair hearing before a
decision which results in negativing a promise
or withdrawing an undertaking is taken. The
doctrine does not give scope to claim relief
straightaway from the administrative
authorities as no crystallized right as such is
involved. The protection of such legitimate
expectation does not require the fulfillment of
the expectation where an overriding public
interest requires otherwise. In other words
where a person's legitimate expectation is not
fulfilled by taking a particular decision then
decision-maker should justify the denial of such
expectation by showing some overriding public
interest. Therefore even if substantive
protection of such expectation is contemplated
that does not grant an absolute right to a
particular person. It simply ensures the
circumstances in which that expectation may
be denied or restricted. A case of legitimate
expectation would arise when a body by
representation or by past practice aroused
expectation which it would be within its powers
to fulfil. The protection is limited to that extent
and a judicial review can be within those limits.
But as discussed above a person who bases his
claim on the doctrine of legitimate expectation,
in the first instance, must satisfy that there is a
foundation and thus has locus standi to make
such a claim. In considering the same several
factors which give rise to such legitimate
expectation must be present. The decision
taken by the authority must be found to be
arbitrary, unreasonable and not taken in public
WP(C) No.5129/1999 page 27 of 50
interest. If it is a question of policy, even by
way of change of old policy, the courts cannot
interfere with a decision. In a given case
whether there are such facts and
circumstances giving rise to a legitimate
expectation, it would primarily be a question of
fact. If these tests are satisfied and if the court
is satisfied that a case of legitimate
expectation is made out then the next question
would be whether failure to give an opportunity
of hearing before the decision affecting such
legitimate expectation is taken, has resulted in
failure of justice and whether on that ground
the decision should be quashed. If that be so
then what should be the relief is again a matter
which depends on several factors."
30. The Supreme Court also took notice of its decision in
Punjab Communications Ltd. v. U.O.I. (1994) 4 SCC 727, wherein
the Court had held: -
"The principle of 'legitimate expectation' is still
at a stage of evolution. The principle is at the
root of the rule of law and requires regularity,
Page 4186 predictability and certainty in the
Governments dealings with the public. The
procedural part of it relates to a representation
that a hearing or other appropriate procedure
will be afforded before the decision is made.
However, the more important aspect is
whether the decision maker can sustain the
change in policy by resort to Wednesbury
principles of rationality or whether the court
can go into the question whether the decision-
maker has properly balanced the legitimate
expectation as against the need for a change.
In sum, this means that the judgment whether
public interest overrides the substantive
legitimate expectation of individuals will be for
the decision-maker who has made the change
in the policy. The choice of the policy is for the
decision-maker and not for the court. The
WP(C) No.5129/1999 page 28 of 50
legitimate substantive expectation merely
permits the court to find out if the change in
policy which is the cause for defeating the
legitimate expectation is irrational or perverse
or one which no reasonable person could have
made."
31. We now proceed to examine the present case in the light
of the above extracted legal principles.
32. Prior to CSE 1996 coming into force, the candidates were
governed by Rule 18 as contained in CSER 1995. This Rule permitted
the candidates to make improvement in their earlier allocation from a
Group `B' post to a Group `A' post or to IAS, IFS or IPS, and those who
had been allocated to a Group `A' in the earlier CSE, to improve their
allocation to IAS, IFS or IPS depending on "the preferences expressed
by a candidate for various services at the time of his application".
This past practice had been in vogue for a number of years and it can
be said that the expectation of the petitioner, that he too would be
permitted to improve his rank in the subsequent CSE while retaining
his allocation made on the basis of his result in CSE 1996; that he too
would be entitled to give his preferences afresh before taking the
following CSE, and; that he would be considered for allocation of a
service/post on the basis of his result in CSE 1997 by taking into
account his preferences given at the time of taking CSE, was based
upon an established practice. Conversely, there was no suggestion or
indication that even for the subsequent CSE, they would be bound by
WP(C) No.5129/1999 page 29 of 50
the list of preferences that they may submit in the first instance in
terms of Rule 2. There was no prior notice or warning given to the
petitioner in this regard. The aforesaid expectation cannot be termed
or being based on sporadic or casual or random acts of the respondent,
or as an unreasonable or illogical or invalid expectation. This
expectation can be said to have arisen in the mind of the petitioner in
the normal course, in view of the consistent past practice of the
respondents, as reflected in Rules 2 & 18 of the CSER 1995. In our
view this expectation was legitimately entertained by the petitioner.
But this legitimate expectation of the petitioner is pitted against the
"Public Interest", if any, in the change of policy as reflected in the
amended Rule 18 as contained in CSER 1996. It is for the decision
maker to justify its decision to change Rule 18 in the manner it did, by
showing overriding public interest. It is also for the decision maker to
meet the attack to the amended Rule 18 of CSER 1996 on the ground
of it being irrational, arbitrary and discriminatory.
33. The justification given by the respondent for the
amendment to Rule 18 is that the same has been made more flexible
and candidate friendly, inasmuch as, whereas Rule 18 did not permit
intra group mobility, the amended rule permitted even intra group
mobility. To this extent, we have no difficulty in accepting that the
amendment to Rule 18 is in the larger public interest and appears to
be reasonable. It is only reasonable that a candidate who improves his
WP(C) No.5129/1999 page 30 of 50
ranking in the subsequent CSE should be entitled to be allocated a
service which he is more interested in joining. If he is not so permitted
on the basis of a technicality, while others who may have ranked below
him in merit are allowed to be allocated and to join the service of
their choice, whether it is in the same group or in a different group, it is
bound to lead to some amount of heart burning and dissatisfaction
which would in turn adversely affect the morale and efficiency of the
more meritorious candidates. Therefore, we have no difficulty in
concluding that the main part of the amended Rule 18 seeks to serve a
purpose which would help in achieving better efficiency amongst
public servants. However, by applying the same logic, we are unable
to appreciate as to what is the purpose sought to be achieved by the
proviso to the amended Rule 18 which unduly restricts the rights of the
candidates who have accepted allocation to a service on the basis of
an earlier CSE, to be allocated only to those services/posts which were
higher in the order of preference as indicated in their application form
for the examination on the basis of which the candidate had last been
allocated to a service. As aforesaid, a candidate for a variety of
reasons may give a particular preference list while appearing at the
CSE as an open market candidate. Having tested the waters once, and
with an allocation with a service in his pocket he may aspire to take
the examination in the following year to improve his ranking and seek
allocation to a service which may interest him more. It is not
uncommon, and it is very normal for any one as he progresses in life to
WP(C) No.5129/1999 page 31 of 50
understand his likes and dislikes better and also to appreciate as to
what is best suited for him, considering his inclination, aptitude,
interests, temperament etc. It is also well known that in this fast
changing world, the perspective of the people in relation to one or the
other kind of services keeps changing, and these changes could come
about very fast. It is also possible that after having appeared in a
CSE as an open market candidate and after being allocated to a
service, the candidate may realise his real potential and may have a
better assessment of what he is capable of achieving and may realise
that he had either over estimated or under estimated his capabilities in
competition with others while taking the CSE in which he has been
allocated to a service. He may, therefore, justifiably want to revise his
preferences while taken a second shot at the subsequent CSE.
34. The aforesaid are aspects which justify permitting
candidates like the petitioner to be entitled to submit a fresh
preference list of services/posts for which they may be considered for
allocation on the basis of the subsequent CSE. There can be no doubt
that candidates like the petitioner who appeared at a CSE while having
in their pocket the allocation to a service/post made on the basis of an
earlier CSE form a separate and distinct class when compared to open
market candidates who do not enjoy such comfort. However, the
matter does not end there. A mere reasonable classification by itself is
not enough to test whether the differentiation violates Article 14 and
WP(C) No.5129/1999 page 32 of 50
16(1) of the Constitution. It is also necessary that the classification
bears a reasonable nexus to the object sought to be achieved by the
classification. In Raojibhai Jivabhai patel & Ors. vs. State of
Gujarat & Ors. 1989 Supp.(2) SCC 744, the Supreme Court noticed
test of reasonableness of classification in the following words:
"12. It is obvious that a valid classification
of persons and things for purposes of
imposing any obligation on them would
not be violative of Article 14 provided the
classification is a reasonable one. It is
well settled that a classification to be valid
has to satisfy two conditions:
(1)that there is an intelligible
differentia between those who are
included in the class which is
affected by any law or rule and
those who are placed outside the
said rule; and
(2)that there is a reasonable nexus
between the classification and the
object to be achieved by the rule or
law in question."
35. In Prabodh Verma & Ors. vs. State of Uttar Pradesh
& Ors., (1984) 4 SCC 251 the Supreme court observed that "By the
process of classification, the State has the power to determine who
should be regarded as a class for the purposes of legislation and in
relation to a law enacted on a particular subject. The classification to
be valid, however, must not be arbitrary but must be rational. It must
not only be based on some qualities or characteristics which are to be
found in all the persons grouped together and not in others who are
WP(C) No.5129/1999 page 33 of 50
left out but those qualities or characteristics must have a reasonable
nexus or relation to the object of the legislation." In Roop Chand
Adlakhs vs. Delhi Development Authority & Ors. 1989 Supp (1)
SCC 116, the Supreme Court observed as follow:
"20. "To overdo classification is to undo
equality." The idea of similarity or dissimilarity
of situations of persons, to justify classification,
cannot rest on merely differentia which may,
by themselves be rational or logical, but
depends on whether the differences are
relevant to the goals sought to be reached by
the law which seeks to classify. The
justification of the classification must needs,
therefore, to be sought beyond the
classification. All marks of distinction do not
necessarily justify classification irrespective of
the relevance or nexus to objects sought to be
achieved by the law imposing the
classification."
36. It is, therefore, necessary to examine as to what is the
object which is sought to be achieved by providing that candidates
belonging to a class to which the petitioner belongs i.e. those who hold
an earlier allocation while appearing for the CSE, would be considered
for allocation only to services/posts which are higher in the preference
list submitted for taking the examination at which they were made the
allocation i.e. they would be bound down to the list of preferences
given by them in the first instance at the time of taking the CSE which
resulted in the earlier allocation, for the purpose of making the fresh
allocation on the basis of the results of the subsequent CSE. Rule 18 as
it stood upto CSER 1995 did not permit intra group movement, i.e.,
WP(C) No.5129/1999 page 34 of 50
movement within Group `B' or Group `A'. It permitted a candidate to
jump from Group `B' to Group `A' or to IAS, IFS or IPS Services/posts,
and those who had been allocated to Group `A' service/post as a result
of the earlier CSE, were allowed to jump to IAS, IFS and IPS
Services/posts. The rationale behind the unamended Rule 18, it
appears, was that the candidate should make a substantial
improvement to be able to move on to a different level of
services/posts and a slight improvement in the ranking which may
only lead to movement within the same group of services/posts (and
which enjoy more or less the same level of salary, perks and carry
responsibilities of similar levels) was not considered as justifying the
administrative effort that the Government would have to make in
accommodating such candidates. In this regard reference may be
made to the observations of the Supreme Court in paragraph 109 and
110 of its decision in Mohan Kumar Singhania (supra). Reference
may also be made to the decision of the Supreme Court in Arti K.
Chhabra & Ors. vs. U.O.I. & Ors 1993 Supp.(4) SCC 650.
37. Even according to the respondents, the amended Rule 18
does away with the said restrictions on intra group mobility. Therefore,
it is now possible after the enforcement of the amended Rule 18, for
the candidates to move even within the same group of services/posts
on the basis of the preference given by them and the availability of
service/post for allocation to them according to their ranking. In our
WP(C) No.5129/1999 page 35 of 50
view there is absolutely no nexus between the purpose of
classification and the object sought to be achieved by and the
embargo contained in by the proviso to the amended Rule 18.
Pertinently the respondents have not disclosed, either before the
Tribunal, or even before us as to what is the justification for restricting
the list of preferences in the case of candidates like the petitioner to
the earlier list submitted by them, even for the subsequent CSE. The
proviso to the amended Rule 18 contains a restriction on candidates
like the petitioner. The restriction seeks to treat such candidates
differentially from the open market candidates. But why they are being
treated differently, and what is the purpose of this differential
treatment, and how it is reasonable is not disclosed. We also agree
with the submission of the petitioner that the proviso to amended Rule
18 is ante thetic to the objectives of the civil service examination and
the purpose it seeks to serve. The concept of improving his ranking by
a candidate by making successive attempts is recognized by CSER.
The CSE is conducted as a competitive examination wherein selections
are based on merit. The proviso to amend Rule 18 seeks to artificially
curb the preferences of services/posts of the more meritorious
candidates by providing that the candidates covered by the said
proviso would be considered for allocation of service/post which are
higher in the list of preferences given for the examination in which
the allocation is earlier made. In our view, therefore, though the
change in policy contained in substantive part of Rule 18 as amended
WP(C) No.5129/1999 page 36 of 50
by CSER 1996 is reasonable, the restriction introduced by proviso to
the amended Rule 18 is unreasonable and irrational. The same is
arbitrary and also discriminatory as it offend Articles 14 and 16(1) of
the Constitution of India.
38. We may refer to the decision of the Supreme Court in
University Grants Commission v. Sadhna Chaudhary & Others
(1996) 10 SCC 536, wherein the Supreme Court justified the action of
the UGC in respect of a class of teachers based on the principle of
legitimate expectation.
39. The UGC made the University Grants Commission
(Qualifications Required of a Person to be Appointed to the Teaching
Staff of a University and Institutions Affiliated to it) Regulations, 1982
(hereinafter referred to as "the 1982 Regulations") whereby
qualifications were prescribed for appointment to a teaching post in
the University or in any of the institutions including constituent or
affiliated colleges recognised under Clause (f) of Section 2 of the UGC
Act or in an institution deemed to be a University under Section 3 of
the UGC Act. Under the 1982 Regulations the minimum qualifications
prescribed for appointment to the post of University lecturers were (i) a
Doctorate's Degree or Research work of equally high standard; and (ii)
a good academic record with at least second class (C in the seven
point scale) Master's degree in a relevant subject from an Indian
University or an equivalent degree from a foreign University, For
WP(C) No.5129/1999 page 37 of 50
college lecturers the minimum qualifications prescribed were (i) an
M.Phil degree or a recognised degree beyond the Master's level or
published work indicating the capacity of a candidate for independent
research work; and (ii) good academic record with at least second class
(C in the seven point scale) Master's degree in a relevant subject from
an Indian University or an equivalent degree from a foreign university.
40. The UGC made the 1991 Regulations which were notified
vide notification dated 19-9-1991. The 1991 Regulations superseded
the 1982 Regulations and prescribed the following minimum
qualifications for the post of lecturers in universities and colleges:
"Good academic record with at least 55% marks or an
equivalent grade at Master's level in the relevant
subject from an India University or an equivalent degree
from a foreign University.
Candidates besides fulfilling the above qualifications
should have cleared the eligibility test for lecturers
conducted by UGC, CSIR or similar test accredited by
the UGC."
41. By Circular dated 10-2-1993, the UGC granted exemption
from appearing in the eligibility test to following categories:
1. All candidates who have passed UGC/CSIR J.R.F.
Examination.
2. All candidates who have already been awarded
Ph.D degree.
3. All candidates who have already been awarded
M.Phil degree upto 31-3-1991.
WP(C) No.5129/1999 page 38 of 50
4. All candidates who will submit their Ph.D thesis
upto 31-12-1993.
42. By circular dated 15-6-1993, in respect of candidates
falling in category (3) exemption from appearing in the eligibility test
was extended to candidates who had been awarded M.Phil degree upto
31-12-1992. By a notification dated 21-6-1995 the 1991 Regulations
had been amended and the following proviso added below the
requirement regarding clearing the eligibility test for appointment on
the post of Lecturer:
"Provided that candidates who have submitted Ph.D
thesis or passed the M.Phil examination by 31-12-1993
are exempted from the eligibility test for lecturers
conduct by UGC, CSIR or similar test accredited by the
UGC."
43. On 23-1-1995, the Haryana Public Service Commission
issued an advertisement inviting applications for 200 temporary posts
of Lecturers (College cadre) in various subjects in Haryana Educational
Service (Group 'B). In the said advertisement it was prescribed that
candidates besides fulfilling the essential qualifications mentioned
therein in the respective subjects should have cleared the eligibility
test for lectureship conducted by the UGC, CSIR or similar test
accredited by the UGC. The said condition was, however, not
applicable to candidates falling in various categories, including those
who had been awarded M.Phil degree upto 31-12-1992 and candidates
WP(C) No.5129/1999 page 39 of 50
who had submitted their Ph.D thesis upto 31-12-1993.
44. Sadhana Chaudhary and Aarti Ahluwalia, (respondents
before he Supreme Court) had joined M. Phil course of Punjab
University for the session 1991-92. Sadhana Chaudhary submitted her
thesis on 25-1-1993, the viva voice test was held some time in
November, 1993 and the M. Phil degree was awarded to her on 14-12-
1993. Aarti Ahluwalia submitted her thesis on 7-10-1992, the viva
voice test was held in December, 1993 and she was awarded M.Phil
degree on 14-12-1993. Since they had been awarded the M.Phil degree
after 31-12-1992, they were not given exemption from clearing the
eligibility test as per the requirement of the advertisement. They
approached the High Court of Punjab and Haryana by filing a writ
petition (Civil Writ Petition No. 2252 of 1995) wherein they assailed the
cut off dated, i.e., 31-12-1992, as fixed in paragraph 5(b) of the
advertisement regarding exemption given to candidates who have
been awarded M.Phil degrees from the eligibility test.
45. The grievance of the writ petitioners/respondents in the
case of Sadhna Chaudhary was that for the purpose of giving
exemption from eligibility test for candidates who had obtained M.Phil
degrees, the cut off date, i.e., 31-12-1992, has been fixed arbitrarily
and that there is no rational basis in confining the exemption to
candidates who had been awarded M.Phil degrees upto 31-12-1992 in
an advertisement issued in January 1995 because between 31-12-1992
WP(C) No.5129/1999 page 40 of 50
to December 1994 many candidates might have obtained M.Phil
degrees.
46. The exemption for clearing the eligibility test under
Clauses (a) to (d) of paragraph 5 of the advertisement was based on
the Circulars of the UGC dated 10-2-1993 and 15-6-1993 referred to
earlier. The High Court, by its judgment dated 21-3-1995, allowed the
writ petition of respondents Nos. 1 and 2 on the view that cut off dates
prescribed in paragraph 5(b) and (c) of the advertisement in respect of
candidates who had acquired M.Phil degree or submitted the Ph.D
thesis are totally unjust and based on no rationale, inasmuch as, it
amounts to creation on an artificial class amongst the eligible
candidates though similarly situated, i.e., having obtained M.Phil
degree after 31-12- 1992, or having submitted Ph.D thesis after 31-12-
1993 respectively and that cut off dates, i.e., 31-12-1992 for M.Phil
degree and 31-12-1993 in case of submission of Ph.D thesis, are far
earlier to the date of the advertisement dated 23-1-1995.
47. The Supreme Court allowed the appeal preferred by the
U.G.C. The Supreme Court invoked the principle of legitimate
expectation to uphold the exemption granted to a class of teachers
from clearing the eligibility test. Relevant extract of para 22 of the
said decision reads as follows:-
"Prior to the making of the 1991 Regulations there
was no statutory requirement regarding clearing
the eligibility test for the purpose of appointment
WP(C) No.5129/1999 page 41 of 50
on the post of Lecturer. Such a requirement was
introduced for the first time by the 1991
Regulations. At the time when the 1991 Regulations
were made the provisions contained in the 1982
Regulations had given rise to a legitimate
expectation that a person having a Ph.D or M.Phil
degree and having good academic record as
prescribed under the 1982 Regulations would be
eligible for appointment on the post of Lecturer
without anything more. While introducing the
requirement of clearing the eligibility lest in the
1991 Regulation's, the UGC did not intend to
deprive the persons who had obtained M.Phil
degree or Ph.D degree prior to the making of the
1991 Regulations of their legitimate expectation in
the matter of appointment on the post of Lecturer
in universities or colleges. It was also felt that the
said requirement in the 1991 Regulations should
not operate to the prejudice of persons who, having
regard to the qualifications prescribed in the 1982
Regulations, had registered for the Ph.D degree or
had joined study for M.Phil degree course prior to
making of the 1991 Regulations and, therefore,
provision was made for granting exemption to such
candidates with the condition that they should have
passed M.Phil examination or should have
submitted Ph.D thesis by a particular date. In so far
as the date of submission of Ph.D thesis is
concerned, the said date, i.e., 31-12-1993, has
remained unchanged in the Circulars dated 10-2-
1993 and 15-6-1993 and the notification dated 21-
6-1995. For M.Phil degree the date was, however,
changed from 31-3-1991 to 31-12-1992 by Circular
dated 15-6-1993 and from 31-12-1992 to 31-12-
1993 by notification dated 21-6-1995. The
amendment in the 1991 Regulations that has been
made by the notification dated 21-6-1995, in
substances, postpones the date of applicability of
the requirement regarding clearing the eligibility
test in the 1991 Regulations till 31-12-1993 in
respect of candidates who had joined the M.Phil
course or registered for Ph.D degree. Such
candidates constitute a distinct class who could be
treated separately in so far as the requirement of
clearing the eligibility test was concerned. Such a
classification of the candidates for the purpose of
applicability of the requirement of clearing the
WP(C) No.5129/1999 page 42 of 50
eligibility test has a rational basis which has a
reasonable nexus with the object sought to be
achieved by the 1991 Regulations. We are,
therefore, unable to hold that the exemption that
has been granted by the amendment introduced in
the 1991 regulations by notification dated 21-6-
1995 is violative of the right to equality guaranteed
under Article 14 of the Constitution."
48. We are of the view that the respondents ought to have
similarly dealt with the petitioner. He, and candidates like him ought
to have been put to notice prior to introduction of the proviso to the
amended Rule 18 as contained in CSER 1996. this omission has put
the petitioner to an avoidable disadvantage.
49. We do not agree with the submission of the respondents
that the petitioner is suffering on account of his own failure to include
all the services in his list of preferences submitted before taking CSE
1996. The preference list submitted by the petitioner before taking
the CSE 1996, when it was submitted, was meant only for allocation of
service/post on the basis of the petitioner's result in CSE 1996. The
petitioner was not put to notice at that stage that he would be bound
down to the preference given by him before taking CSE 1996 for all
subsequent attempts made while retaining his allocation made on the
basis of his result in CSE 1996. Whatever disadvantage the petitioner
had to suffer on account of his not submitting a more exhaustive list of
his preferences, had been suffered when allocations of service/post
was made on the basis of CSE 1996. In our view, it could not be
WP(C) No.5129/1999 page 43 of 50
carried forward to the subsequent examination taken by him i.e. CSE
1997. We also do not find any merit in the submission founded upon
the 'Note' to Rule 2 of CSER 1996, that the said note advised the
candidates to be very careful while indicating preferences for various
services/posts. Firstly, this 'Note' did not exist at the time the
petitioner gave his preference list of CSE 1996. Secondly, even if the
respondents were to rely upon the 'Note' to Rule 2 of CSER 1995, that
'Note' did not tell the petitioner that he would be bound by the
preferences that he may give for taking CSE 1996, even for the
subsequent year in the eventuality of his taking CSE 1997 while
retaining the allocation of service/post that may be made on the basis
of his result in CSE 1996.
50. We also do not agree with the respondents that if the
petitioner desired to be considered on the basis of this preference list
submitted with his form for CSE 1997, he should have resigned from
the service/post allocated on the basis of CSE 1996 before taking the
CSE 1997, since Rule 18 of CSER 1996 was published in December
1996 i.e. before he took the said examination. Firstly, if the said Rule,
or any part of it is arbitrary and discriminatory and violative of the
constitutional scheme, the same can be challenged at any stage.
Secondly, the petitioner was entitled to wait to receive his results in
respect of CSE 1997 and to see how it impacts him before challenging
the validity of the Rule or any part thereof. If he had challenged the
WP(C) No.5129/1999 page 44 of 50
amended Rule 18 even prior to taking the CSE 1997, the respondents
could well have argued that the challenge is premature.
51. There is also merit in the submission of the petitioner that
the amended Rule 18 contained in CSER 1996 does not take into
account situations such as the inclusion of a Central service within the
ambit of CSE after a candidate had taken the CSE in an earlier attempt
and where he had been made an allocation of service/post. Before the
holding of the subsequent CSE, where a fresh service has been
included within the ambit of CSE or the grouping/grading of a service
had been changed in the interregnum i.e. after taking the first, but
before taking the second CSE, if candidates like the petitioner are
bound down by the options furnished by them while taking the earlier
CSE they would certainly be deprived of the opportunity to give their
preference in respect of the service/post which may have been
included or the grouping/grading whereof has been changed in the
meantime after his taking the first CSE and before he takes the
subsequent CSE, while retaining the allocation made in the first CSE.
The petitioner has himself given two such instances. The first being
with regard to inclusion of Pondicherry Police Service, Group `B',
within the ambit of CSE after he had taken CSE 1996 but before he
appeared in CSE 1997. The second being the upgradation of the post
of DSP, CBI from a Group `B' to Group `A' post. This upgradation had
also taken place after the petitioner had given his preference list for
WP(C) No.5129/1999 page 45 of 50
CSE 1996 but before he appeared for CSE 1997. In fact, the position
stands conceded by the responded as well that the petitioner was
deprived of giving his preference for the aforesaid service/post and the
concession of the respondent is evident from the fact that the
respondent themselves allocated the petitioner to Pondicherry Police
Services on the basis of his result in CSE 1997, even though that
service did not find mention in his preference list submitted at the
time of taking CSE 1996. The view of the Tribunal that on a plain
reading of the amended Rule 18 the petitioner could not be allocated
to the Pondicherry Police Services, since that service did not figure in
the list of preferences given by the petitioner while appearing for CSE
1996 also shows that the respondent was conscious of these lacuna in
the amended Rule 18 and the respondent, therefore, did not strictly
adhere to Rule 18 as amended by CSER 1996 and diluted it in its
application to the petitioner.
52. Coming to the defence of the respondent before the
Tribunal as also before us, we are of the view that there is no merit in
the same, particularly, in the facts of this case. The first submission of
the respondent was founded upon the decisions of the Supreme Court
in Birender Kumar Nigam (supra). This decision was relied upon in
support of the argument that candidates like the petitioner, who were
appearing in CSE while retaining the allocation of service/post made
on the basis of an earlier CSE form a different class, when compared to
WP(C) No.5129/1999 page 46 of 50
open market candidates, and that it is open to a particular department
to impose restrictions on its employee who are seeking employment in
other departments and consequently a partial ban which permits them
to seek appointment to only certain posts in the same department
cannot be characterised as illegal as being discriminatory. Based on
the decision of Allahabad High Court in Ravindra Prasad Singh
(supra), it is argued that equality of opportunity in a matter of
employment can be predicated only between persons who are either
seeking the same employment, or have obtained the same
employment. Variation in provisions as between different class of
employees either under the Union or the State are frowned upon by
Article 16.
53. Reliance placed on Birender Kumar Nigam (supra)
appears to be misplaced in the facts of this case. This is because the
respondents had themselves given the option to the petitioner vide
their communication dated 11.2.1987 to seek the approval of the
Government, in case the petitioner desired to retain his allocation of
service/post while seeking to appear in the subsequent CSE for
improving his ranking and allocation of service/post. At that stage the
respondents did not seek to restrict the options of the petitioner.
54. Mohan Kumar Singhania (supra) relied upon by the
respondent is a case wherein Supreme Court was examining the
validity of the second proviso to Rule 4 of CSER, 1986. The second
WP(C) No.5129/1999 page 47 of 50
proviso to Rule 4 of CSER 1986 provided that a candidate who had
already been allocated to IPS/Central Services Group `A' and who in
order to improve his efficacy of selection to higher services expresses
his intention to appear in the next CSE (Main) for competing for IAS,
IFS, IPS or Central Services Group `A' and who has been permitted to
abstain from probationary training in order to do so, will become
eligible to appear in the next CSE (Main) subject to the provisions of
Rule 17 (similar to Rule 18 of CSER 1995) and that the said candidate
when allocated to a service on the basis of next CSE can either join
that service or the service to which he had already been allocated on
the basis of the previous CSE and that if he fails to join either of the
services his allocation based on one or both the examinations, as the
case may be, will stand cancelled. It further provided that candidate
who accepts allocation to a service and is appointed to that service
shall not be eligible to appear again in the CSE unless he has first
resigned from that service. The Supreme Court upheld the second
proviso to Rule 4 since it found that the probationer allocated to IAS
and Group `A' services were completely neglecting their training and
also going on leave enmasse for preparing for the coming CSE
thereby creating a complete vacuum in the training institutions without
having a sense of involvement with the service with to which they
had been allocated. For this reason the probationers sent for training
were debarred from appearing in ensuing CSE so that they could fully
devote themselves for the training and take it more seriously. The
WP(C) No.5129/1999 page 48 of 50
Court held that there was nexus with the second proviso to Rule 4 of
CSER 1982 and the object sought to be achieved. This decision does
not, in our opinion advance the case of the respondents.
55. In the result this petition is allowed and the
judgment/order dated 21.5.1999 passed by the Tribunal in OA
No.1423/1998 is also set aside. Thze proviso to Rule 18 of the CSER
1996 being arbitrary, irrational and discriminatory is quashed.
However, the proviso to Rule 18 of CSER 1996 is severable and the
substantive provision contained in Rule 18 of CSER 1996 is reasonable
and seeks to achieve the purpose of introducing greater flexibility for
candidates including those like the petitioner, who appeared in CSE
1997 while having an allocation of service/post on the basis of CSE
1996. It seeks to promote greater efficiency in the services and
reward merit. The same is, therefore, saved and upheld. We further
direct that the petitioner, who is a S.T. Candidate be appointed to a
service/post on the basis of his ranking in CSE 1997 by taking into
account the list of preferences submitted by him before taking CSE
1997, and not the list of preferences submitted by him before taking
CSE 1996. The petitioner would also be entitled to seniority in the
service/post to which he is allocated from the same date on which he
has been given seniority in his current service/posting. His ACRs in his
existing service/post shall be deemed to be his grading/ACRs in his
new service/post for all purposes. In his new service/posting if his
WP(C) No.5129/1999 page 49 of 50
contemporaries/batchmates have earned promotions etc. on the basis
of their proficiency tested in a departmental test/examination, the
petitioner shall be provisionally promoted and thereafter given
reasonable opportunity to appear at, and clear such
tests/examinations. However, we are not inclined to grant arrears of
pay to the petitioner on account of the fact that he has not rendered
service in any other post to which he may have entitled. With these
directions this petition stands disposed of leaving the parties to bear
their respective costs.
(VIPIN SANGHI)
JUDGE
(A.K. SIKRI)
JUDGE
July 11, 2008
aj
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