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Judgment
K.N. Shrivastava, Member (A)
M.A. No.1764/2018 in O.A. No.1219/2018
The applicants of this M.A., who are original applicants in O.A. No.1219/2018, had moved the Hon"ble Delhi High Court in W.P. (C) No.3545/2018 and C.M. Appl. No.14000/2018 challenging the interim order dated 28.03.2018 passed by this Tribunal in O.A. No.1219/2018. The Tribunal, vide its ibid interim order, had directed that any appointment to the post of Chief Statistician shall remain subject to outcome of the O.A.
The Hon"ble High Court, taking cognizance of the fact that an identical O.A. No.1009/2018 entitled Tushar Ranjan Mohanty v. Union of India is pending before the Tribunal, directed that both these O.As., i.e., O.A. Nos. 1219/2018 and 1009/2018 be tagged together and disposed of by appropriate orders passed well in time. The applicants have placed the ibid order of the Hon"ble High Court on record through this M.A. and have accordingly prayed for tagging of these two O.As.
In view of the direction of Hon"ble High Court as well as considering the fact that the issues involved in both these O.As. are identical, it is directed that both these O.As. be tagged together and considered for adjudication accordingly.
M.A. stands allowed.
O.A. No.1219/2018
The applicants have prayed for the following main reliefs:
"b) Set-aside / quash the impugned notifications dt. 7.2.2018 & 23.2.2018 to the extent the same prescribes the maximum age limit of 55 years for being eligible to apply and for being considered for the post of Chief Statistician of India in National Statistical Commission who is also to act as Secretary M/o Statistics and Programme Implementation.
c) Consequently direct the respondents to restore the condition as contained in notification bearing No.S.O.668(e) dt. 8.5.2006 to the effect that the candidate should have attained the age of 52 years at the time of appointment."
Factual matrix of this O.A., as noticed from the records, is as under:-
6.1 Indian Statistical Service (ISS) is a Group "A" Service of Central Government. 50% of the posts at the entry grade of ISS, i.e., Junior Time Scale (JTS), are filled through direct recruitment based on All India Open Competitive Examination conducted by the Union Public Service Commission (UPSC) and remaining 50% are filled up by promotion of officers from Subordinate Statistical Service (SSS).
6.2 The hierarchical order of ISS is : Assistant Director (JTS) → Deputy Director (Senior Time Scale (STS)) → Director/Joint Director (Junior Administrative Grade (JAG)) → Deputy Director General (Senior Administrative Grade (SAG)) → Additional Director General (Higher Administrative Grade (HAG)) → Director General (HAG +).
6.3 The National Statistics Office (NSO), which is manned mostly by the ISS officers, comprises of 2 wings, namely, Central Statistical Organization (CSO) and National Sample Survey Organization (NSSO). The CSO and NSSO were brought under one umbrella of NSO on the basis of recommendations of Dr. C Rangarajan Committee. The NSO is headed by the Chief Statistician of India (CSI).
6.4 On the basis of Dr. C. Rangarajan Committee"s recommendations, National Statistical Commission (NSC) has also been created, of which CSI is Secretary. CSI is also Secretary to Government of India in the Ministry of Statistics & Programme Implementation (MoSPI).
6.5 The post of CSI in the rank and pay scale of Secretary to the Government of India was created vide Annexure A-6 order dated 22.08.2005 of MoSPI. The relevant portion of this order is extracted below:-
"2. Sanction of the President is hereby accorded to the creation/ upgradation of the following posts"-
i. Creation of the post of Chief Statistician of India in the rank and pay of Secretary to the Government of India (Pay scale Rs.26000/-fixed) by converting the existing cadre post (Pay scale Rs.26000/-) of ISS of Director General, Central Statistical Organisation of the Ministry of Statistics and Programme Implementation.
ii. Upgradation of one HAG II level post of ISS (Rs.22400-525-24500) to that of Director General, Central Statistical Office in HAG I of the ISS (Rs.22400-600-26000/-)." 6.6 The MoSPI, vide its Annexure A-7 Gazette Notification dated 08.05.2006, notified tenure and service conditions of the Chairperson and Members of the NSC as well as that of CSI. The relevant portion of this Gazette Notification pertaining to CSI is extracted below:-
"4. Appointment Tenure and Service Conditions of the Chief Statistician of India.
4.1 The Chief Statistician of India will be the Secretary of the Commission. He will also be head of the National Statistical Organisation and discharge the functions of the Secretary to the Government of India in the Department of Statistics.
4.2 The Search Committee shall recommend names of two persons for the post of the Chief Statistician of India, out of which the Government of India shall appoint one person as the Chief Statistician of India. Persons with statistical and managerial experience in a large statistical organisation shall be considered for appointment.
4.3 The tenure of the Chief Statistician of India will be five years or till he/she attains the age of sixty two years, whichever is earlier. The Chief Statistician of India will be eligible for reappointment. He/she should have attained the age of 52 years at the time of appointment.
4.4 The Chief Statistician of India will be eligible for the salary and allowances of a Secretary to the Government of India. He will also be eligible for Government accommodation, telephone, medical attendance and all other facilities as admissible to a Secretary to the Government of India.
4.5 Where any person being a retired government servant or retired servant of any other Institution or autonomous body and in receipt of a pension in respect of any previous service, is appointed as the Chief Statistician of India, the salary admissible to him under these rules shall be reduced by the amount of that pension and if he had received in lieu of a portion of the pension, the commuted value thereof, by the amount of that portion of the pension."
6.7 The MoSPI, vide its Annexure A-1 Gazette Notification dated 07.02.2018, slightly altered the service conditions of CSI. In this Notification, it is stated that an applicant for the post of CSI can be considered only if he is below 55 years of age. It further stipulates that the selection to the post of CSI would be done through a Search Committee and that the initial tenure of CSI would be of three years and is extendable by two years. The contents of this Notification are extracted below:-
"1. Selection procedure: Applications may be invited for the position of Chief Statistician of India from Indian Nationals with proven statistical and managerial experience in a large statistical organization. A Search Committee constituted by the Government of India from time to time for the purpose will recommend a panel of names for filling a vacancy from amongst the applicants. Besides the applicants, the Search Committee may also recommend names of other persons considered suitable for the position.
The applicants considered for the position of Chief Statistician of India should not be more than 55 years of age as on the last date for application to the position, as may be determined by the Search Committee.
Chief Statistician of India, will have a tenure of three years extendable by a further period of two years, i.e., a total of five years or till he/she attains the age of superannuation, whichever is earlier and will be eligible for reappointment.
Chief Statistician of India will be entitled to salary and allowances and other facilities like Government accommodation, as admissible to a Secretary to the Government of India.
The Competent Authority reserves the right to suitably relax the eligibility criteria given above, if considered necessary, in exceptional cases.
The above service conditions will come into immediate effect and shall, to the extent of disagreement in respect of provisions for Chief Statistician of India, supersede the provisions given in the Resolution No.85, dated 1st June, 2005 published in the Gazette of India, Extraordinary, Part-III-Section-4, in the Notification No.465 dated 10.05.2006, published in the Gazette of India, Extraordinary, Part-II-Section-3-Sub Section (ii) and in the Notification No.19 published in the Gazette of India Weekly (9-15) May 2015)."
6.8 The MoSPI, vide its Annexure A-2 Notification dated 23.02.2018, has invited applications for the post of CSI stipulating therein the position and responsibility, qualifications, conditions of service of CSI as well as the selection procedure. The contents of the Notification are extracted below:-
"Position and responsibility: The Chief Statistician of India (CSI) is a senior level appointment in the rank of Secretary to the Government of India. CSI besides discharging the functions of the Secretary to Government of India in the Ministry of Statistics and Programme Implementation will be head of the National Statistical Organisation and Secretary of the National Statistical Commission.
Qualifications: The applicants shall be Indian Nationals with proven statistical and managerial experience in a large statistical organization. He or she should not be more than 55 years of age as on the last date for application to the position.
Conditions of service: CSI will have a tenure of three years extendable by a further period of two years, i.e. a total of five years or till he/she attains the age of superannuation, whichever is earlier and will be eligible for reappointment. CSI will be entitled to the salary and allowances and other facilities like Government accommodation as admissible to a Secretary to the Government of India.
Selection procedure: A Search Committee constituted by the Government of India will recommend a panel of names for filling the vacancy from amongst the applications. Besides the applicants, the Search Committee may also recommend names of other persons considered suitable for the position. The competent authority also reserves the right to suitably relax the eligibility criteria given above, if considered necessary.
Candidates should send their applications along with their Curriculum Vitae including details of professional experiences and publications to Dy. Director General, NSC Secretariat, Ministry of Statistics and Programme Implementation, Room No.305, 3rd Floor, C-Wing, Pushpa Bhawan, Saket, New Delhi-110062 either by post or by E-mail at [email protected] so as to reach him by 15.00 hours on or before 31st March, 2018. Those who are serving in Government or Public Sector undertakings or Autonomous bodies should send their applications through their employer along with character and integrity certificates."
6.9 The grievance of these applicants is that the revised eligibility criteria for the post of CSI, as notified vide Annexure A-2 Notification dated 23.02.2018, would virtually eliminate the ISS officers from being considered for the post of CSI. In this regard, they have submitted Annexure A-8 (colly.) representations dated 05.03.2018 and 14.03.2018 to the Cabinet Secretary, Principal Secretary to Prime Minister and Secretary, MoSPI. As no action has been taken on these representations, the applicants have approached this Tribunal in the instant O.A. impugning Annexures A-1 & A-2 Notifications and seeking reliefs, as indicated in paragraph (5) above.
In support of the reliefs claimed, the applicants have pleaded the following important grounds:-
7.1 The impugned Notifications, stipulating 55 years of maximum age, is contrary to the decision and order of the Government dated 22.08.2005 whereby the post of erstwhile Director General, CSO from ISS cadre was upgraded to the post of CSI.
7.2 The impugned Notifications, prescribing maximum age limit of 55 years for applying for the post of CSI, are violative of fundamental right of equality of opportunity in public employments of the senior officers, including Director General level officers of ISS, as guaranteed under Article 16 (1) of the Constitution. It is stated that these Notifications virtually exclude senior officers of ISS, including those at the level of Director General from consideration, as they would be reaching that stage (HAG & HAG +) in their career not before attaining the age of 55 years.
7.3 The post of CSI is a specialized and technical post requiring both practical and technical experience of dealing with the issues and strategies related to data collection, compilation, analysis and dissemination of official statistics at National and sub-National levels.
7.4 The impugned Notifications discriminate against the ISS officers and only provide scope for outsiders to become CSI. Such lateral entry would be prejudicial to the career prospects of senior officers of ISS.
7.5 The impugned Notifications have been issued with the approval of the Cabinet Secretary and not with the approval of the Cabinet. It is to be noted that the post of Director General, CSO of ISS cadre was upgraded to the post of CSI as per the approval of Cabinet in its meeting held on 19.05.2005, pursuant to which the order dated 22.08.2005 was issued by the MoSPI creating the post.
O.A. No.1009/2018
The applicant is a direct recruit ISS officer of 1981 batch of ISS. He is presently in SAG. He is also aggrieved of Annexure A-1 Notification dated 23. 02.2018, inviting applications for the post of CSI and Annexure A-2 Notification dated 07.02.2018, stipulating the service conditions for the post of CSI. Accordingly, he has prayed for the following main reliefs:-
"9.1 to stay the operation of the offending sentence in the impugned Advertisement (Annexure : A-1), which reads:
"Those who are serving in Government or Public Sector undertakings or Autonomous bodies should send their applications through their employer along with character and integrity certificates." In the case of the applicant;
9.2 to direct the Respondent to consider the candidature of the Applicant for the post of Chief Statistician of India, subject to the outcome of the present OA;
9.3 to direct the Respondent to declare publicly, latest by 19.02.2018, the Short-Listing Criteria, if any, for filling up the post of Chief Statistician of India;
9.4 to direct the Respondent to declare publicly, latest by 19.02.2018, the Selection Criteria for filling up the post of Chief Statistician of India."
In support of the reliefs, the applicant has pleaded the following important grounds:-
9.1 The stipulation in Annexure A-1 Notification that "those who are serving in Government or Public Sector undertakings or Autonomous bodies should send their applications through their employer along with character and integrity certificates" is violative of Annexure A-3 Notification dated 08.05.2006, under which the service conditions for Chairperson and Members of NSC and that of CSI were notified.
9.2 The maximum age limit of 55 years, prescribed in the impugned Annexure A-1 Notification, is violative of the principles of equality enshrined under Articles 14 & 16 of the Constitution relating to public employments.
Pursuant to the notices issued, the respondents entered appearance and filed their replies in these O.As., in which they have broadly averred as under:-
10.1 The post of CSI is not a cadre post of ISS and as such, ISS does not have any exclusive right or claim over the post.
10.2 The terms and conditions of appointment for the post of CSI - cum - Secretary to the Government of India, MoSPI provide for a tenure of three years, which is extendable by a further period of two years, i.e., total five years or till the incumbent attains the age of superannuation in Government, i.e., 60 years. The idea of keeping the maximum age at 55 years for applying for the post is to ensure that a wider choice is available for selection. Further, if anyone, who is above 55 years of age, is selected, he/she may not be able to serve for the full tenure of five years.
10.3 No enforceable right of the applicants has been infringed by the impugned Notifications. Providing eligibility criteria for any post is prerogative of the Government. In this regard, reliance is placed on the judgment of Hon"ble Apex Court in Mallikarjuna Rao & others v. State of Andhra Pradesh & others, (1990) 2 SCC 707 wherein it has been held that "It is neither legal nor proper for the High Courts or the Administrative Tribunals to issue directions or advisory-sermons to the executive in respect of the sphere which is exclusively within the domain of the executive under the Constitution and that the Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the constitution lies within the sphere of legislature or executive".
The above position is also reiterated by the Hon"ble Apex Court in the case of P.U. Joshi & others v. The Accountant General, Ahmedabad & others, (2003) 2 SCC 632.
10.4 In response to the impugned Annexure A-1 Notification, 36 applications have been received, including 13 applications from ISS officers within the due date, and 3 more applications from ISS officers after the due date. As such, 16 applications have been received from ISS officers.
10.5 The Search Committee, in its meeting held on 27.04.2018, decided that all those ISS officers, who are at the level of HAG or above and who have applied for the post of CSI, would be considered even if they are above 55 years of age.
10.6 The contention of the applicants is that the post of CSI is to be manned by an incumbent, who has technical and specialized knowledge and experience in dealing with the very important functions assigned to the NSC. It is stated that as per the notified service conditions, persons with statistical and managerial experience in a large statistical organization shall be considered for appointment to the post of CSI. On the issue of experience for the post of CSI, the Hon"ble High Court of Delhi, in its judgment dated 17.09.2013 in W.P. (C) No.8124/2011 (Union of India & others v. Swapan Kumar Das), has made the following significant observations:-
"35. Experience, at first blush, is often linked with time i.e. the duration of working on a subject or at a post, experience whereof is required i.e. is one of the many measure to determine either eligibility or suitability. But what should be the duration of the period? Is at the core. Normally, the employer is the one who determines the chord segment of time by which experience is to be measured. But for some category of posts the employer may have to leave the said chord segment of time undetermined, leaving it to be decided on case to case basis, for the reason an intense working even for a short duration of time may clothe a person with sufficient experience in comparison to a person whose working is not intense but spans a larger period of time. Perhaps, this was in the mind of the Government of India in the instant case while framing the policy regarding recruitment to the post of Chief Statistician of India. The Government consciously did not specify a period i.e. the number of years as the measure for the experience.
xxx xxx xxx xxx
In view of the foregoing discussion, it can be seen that experience is not easily quantifiable. It may be that the same person can acquire the requisite amount of experience over a single project in a short duration, and similar experience may be acquired over many long projects of relatively smaller durations. The Screening Committee obviously saw merit in the work of Prof. T.C.A.Anant, and if they were of the opinion that the said experience of three years could be equated with a larger stint elsewhere, they were not wrong in arriving at said conclusion, being experts in the field."
On completion of pleadings, the case was taken up for hearing the arguments of learned counsel for the parties on 13.07.2018. Arguments of Mr. S K Rungta, learned senior counsel with Mr. Prashant Singh, learned counsel for applicants in O.A. No.1219/2018, applicant in O.A. No.1009/2018 as party in person, Mr. Rajeev Kumar, learned counsel for respondents in O.A. No.1219/2018 and Mr. R V Sinha, learned counsel for respondent in O.A. No.1009/2018 were heard.
Mr. S K Rungta, learned senior counsel for applicants in O.A. No.1219/2018, besides reiterating the averments made in the said O.A., submitted that Annexure A-7 Notification of MoSPI, notifying the service conditions of Chairperson and Members of NSC and that of CSI, has not been superseded by the impugned Annexure A-1 Notification. Annexure A-7 Notification prescribes a minimum age of 52 years for appointment to the post of CSI and allows the tenure of CSI till the incumbent of the post attains the age of 62 years. He emphasized that Annexure A-1 Notification has not been issued with the approval of Cabinet, whereas Annexure A-7 Notification was issued with the approval of the Cabinet. He also questioned the reduction of age of retirement of CSI from 62 to 60 years by virtue of the impugned Annexure A-1 Notification.
Mr. Mohanty, applicant in O.A. No.1009/2018, appearing as party in person, and learned counsel for respondents in these O.As. argued on the lines of their respective pleadings.
We have considered the arguments of the parties and have perused the pleadings and records annexed thereto.
No doubt, the post of CSI, which is in the grade and pay scale of Secretary to Government of India, is a very important post and is required to be manned by person with domain knowledge and experience. The eligibility criteria, including those relating to educational qualifications and experience, have been spelt out by the respondents in the impugned Notifications. The Hon"ble High Court of Delhi, on this issue, has also given its observations, which is reproduced in paragraph 10.6 above. From this perspective, we find that the educational qualifications and experience prescribed for the post of CSI in Annexure A-1 Notification are almost akin to those prescribed in the Annexure A-7 Notification dated 08.05.2006.
As regards the age limit, Annexure A-1 Notification stipulates that a candidate applying for the post of CSI can be considered only if he is below 55 years of age. This condition, in our view, is highly discriminatory. This virtually excludes all the senior officers of ISS from applying, as they normally reach the HAG level and above only after attaining the age of 55 years and as such they would get excluded from consideration, albeit they would have been fully meeting with other criteria relating to educational qualifications and experience.
The Annexure A-7 Notification of the respondents dated 08.05.2006 of MoSPI stipulates minimum age of 52 years. It also prescribes the retirement age for the post of CSI as 62 years. We are not in agreement with Mr. S K Rungta, learned senior counsel that this Notification has not been superseded by any new Notification. As a matter of fact, the impugned Annexure A-1 Notification supersedes it partially. Paragraph (6) of Annexure A-1 is to be perused in this regard. However, we are of the view that paragraph (2) of Annexure A-1 Notification stipulating maximum age limit of 55 years for applying for the post of CSI is discriminatory to ISS officers and virtually eliminates all senior ISS officers from consideration for the post. We hold that the paragraph (2) of Annexure A-1 is violative of the principles of equality enshrined in Articles 14 & 16 of the Constitution.
Another important issue raised by the applicants is that the impugned Annexures A-1 & A-2 Notifications have been issued with the approval of the Cabinet Secretary and not of the Union Cabinet. It is stated that the Annexure A-7 Notification dated 08.05.2006 notifying the terms and conditions for the post of CSI was issued with the approval of the Union Cabinet. It was, thus, argued by Mr. Rungta that the impugned Notifications are flawed and lack legitimacy. On this time, we are of the view that how Notifications are to be issued is to be decided by the Executive (Government). As long as a Notification issued is owned by the Government before any judicial forum, its authenticity, validity and legitimacy should not be questioned.
We do take note of the fact that the Search Committee, in terms of the relaxations provided in paragraph (5) of the Annexure A-1 Notification, has already decided to consider all the ISS officers, who are in the grade of HAG and above and who have applied for the post even if they have crossed the age of 55 years. This decision of the Search Committee is perfectly in order and satisfies the requirements of the equality principle enshrined under Articles 14 & 16 of the Constitution.
In the conspectus, we dispose of these O.As. in the following terms:
a) All ISS officers in the grade of HAG (Additional Director General) and HAG+ (Director General) and who have applied for the post of CSI shall be considered for the post even if they have crossed the age of 55 years.
b) Any stipulations in the Notifications dated 07.02.2018 (Annexure A-1) and 23.02.2018 (Annexure A-2) in O.A. No.1219/2018 contrary to (a) supra are set aside.
No order as to costs.
Let a copy of this order be placed in both the files.