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Judgment
Per: Mr. Braj Mohan Agrawal, Administrative Member
The applicant was appointed to the post of Deputy Collector as per Annexure A-1 order dated 28.03.2021 in the State Civil Service. Prior to entering the post of Deputy Collector, she served as Assistant Development Commissioner(ADC) in the Rural Development Department of the State Service from 05.09.2016 to 29.03.2021.
Regulation 5(2) of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 mandates 8 years continuous service in the State Civil Service post or in other declared posts for considering the name of an officer for promotion to the post in Indian Administrative Service from State Civil Service. On achieving minimum 8 years service in the Executive Post, an officer is entitled to be considered for promotion to the Indian Administrative Service, for which the applicant claims that she is entitled as on 01.01.2025. The applicant is aggrieved by Annexure A-11 order, which does not consider her past service as ADC being not a State Civil Service post as qualifying service for promotion to IAS.
The contention of the applicant is that the question is not that ADC post is State Civil service post or not, but the fact that ADC post is a second gazetted post, which is a post under deemed State Civil Service under Rule 19(b) of the Kerala Administrative Service (KAS) Rules, 2017 is not taken into consideration and a different treatment cannot be made in the matter of applicant herein who is working as a Deputy Collector and this aspect has not been considered or answered in Annexure A11. As per the applicant, the post of Deputy Collector under Revenue Department in the State Service as well as the post of Kerala Administrative Service Officer (Junior Time Scale) under KAS Rules, 2017 are equivalent post for the purpose of promotion to the post in IAS under Indian Administrative Service (Appointment by Promotion) Regulations, 1955. However while deciding the eligible minimum tenure of 8 years continuous service, the tenure of holding ADC post under Rural Development Department in the Government of Kerala, is treated differently and there is gross discrimination, which is arbitrary, unreasonable and unconstitutional.
The brief facts of the case are that the applicant was appointed in the post of Deputy Collector, which is a service under the Kerala Civil Service (Executive) Special Rules. The appointment to the said service is made by way of recruitment by transfer from Kerala Revenue Service or by direct recruitment (Annexure A-5). The applicant was appointed under direct recruitment as per Annexure A-1 order dated 28.03.2021.
As per the applicant, prior to her appointment in State Civil Service (Annexure A-1), she was working as Assistant Development Commissioner(ADC) in the Rural Development Department of the State Government service itself, holding the same scale of pay and equivalency of the post of Deputy Collector during the period from 05.09.2016 to 29.03.2021. As she has already completed service of 4 years and 6 months (State Government service), her total continuous service of 8 years gets completed prior to 01.01.2025, in the State Government service and State Civil Service put together, as Assistant Development Commissioner (ADC) and Deputy Collector.
The applicant contends that Rule 19 (b) of the KAS Special Rules specifically enables counting of the past years of service in the post of Assistant Development Commissioner, well from the year 2018 and back as the required Qualifying service for promotion to the Indian Administrative Service (IAS) from the State Civil Service (SCS) in Kerala. It is provided therein that for such officers, in the KAS, who have been selected from STREAM 2 and from STREAM 3, the period of service already completed in the Second Gazetted Post and above shall be admissible for meeting the qualifying service prescribed from time to time for promotion to the Indian Administrative Service.
The applicant who joined Kerala Civil Service(Executive) is similarly situated and is grossly discriminated while deciding her eligibility under Regulation 5(2) of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 for the purpose of preparing the select list to the post in Indian Administrative Service. Either it be a Kerala Administrative Service or the Service under the Kerala Civil Service (Executive), the candidates entering into the service from the same post of ADC cannot be distinguished or classified with unreasonable criteria, for the purpose of preparing a select list for promotion to the Indian Administrative Service. Therefore, Annexure A-11 is totally illegal, irregular, unreasonable and arbitrary
Aggrieved by Annexure A-11 order, the applicant has filed this Original Application and sought the following reliefs:-
(i)To declare that the service of the applicant as the Assistant Development Commissioner in the Rural Development Department of the Government of Kerala is entitled to be taken as the eligible service for the purpose of computing the continuous total service under Regulation 5(2) of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955.
(ii)To quash Annexure A-11 proceedings issued by the 4 respondent
(iii)To direct the 3 and 4 respondents to include the name of the applicant, while preparing the list of suitable officers from the State Civil Service; under Regulation 5 of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 for the purpose of preparing the Select List for the promotion in the post of Indian Administrative Service, from the State Civil Service in Kerala, for the selection year 2025
(iv)To direct the 3 and 4 respondents to recommend the name of the applicant herein to the respondents No.1 to 2, for being considered for promotion to the Indian Administrative Service cadre in the select list for the year 2025 and consequently direct the respondents No.1 and 2 to act upon it
(v)To declare that treating the post of Assistant Development Commissioner in the Rural Development Department, Government of Kerala, differently, under Rule 19(b) of the Kerala Administrative Service(KAS) Rules 2018 and Kerala Civil Service (Executive) Special Rules, as applicable for Deputy Collectors, for the purpose of deciding the second gazetted posts or post under deemed State Civil Service, in the matters of promotion to the Indian Administrative Service is arbitrary, unreasonable and discriminatory and hence unconstitutional
(vi)To grant such other order or direction as this Tribunal may deem fit in the circumstances of the case.
Respondent No.2, UPSC, submits that the Selection Committee prepares a list by considering the State Civil Service officers as per the provisions of IAS appointment by promotion Regulation 5(2) and 5(3) (Annexure A-3which read as under:
5(2) The Committee shall consider for inclusion to the said list, the cases of members of the State Civil Services in the order of seniority in that service of a number which is equal to three times the number referred in sub-regulation (1)............Provided also that the Committee shall not consider the case of a member of the State Civil Service unless on the first day of January of the year for which the Select List is prepared he is substantive in the State Civil Service and has completed not less than eight years of continuous service (whether officiating or substantive) in post(s) included in State Civil Service.
Drawing up of the eligibility list and forwarding the proposal to UPSC is the exclusive domain of concerned State Government, in consultation with Government of India/Department of Personnel and Training.
The 4th Respondent in his reply statement submits that the applicant joined the post of Deputy Collector on 28.03.2021 in the Revenue Department. During the period from 05.09.2016 to 27.03.2021 she has been working as Assistant Development Commissioner (ADC) under the Rural Development Department. Deputy Collector Post in the Revenue Department falls under the State Civil Service and ADC in Rural Development to State Service. The post of Assistant Development Commissioner in the parent department is constituted under its own independent departmental Special Rules and does not form part of the State Civil Service cadre. The post of ADC in Rural Development Department is not included in the field of choice for promotion to Indian Administrative Service. Eight years of continuous service in the State Civil Service is the requisite qualification for promotion to the Indian Administrative Service. In the instant case, the applicant is devoid of the prescribed qualification. Eight years of continuous service in the State Service does not make a candidate eligible for promotion to IAS. Candidates not belonging to State Civil Service may get conferred IAS after satisfying the stipulated mandatory procedure for the same.
Respondents plead that a new cadre Kerala Administrative Service was introduced in the year 2017 by grabbing the posts of State Civil Service and State Service and fresh appointments were made to those posts by direct recruitment. The applicant was appointed in the cadre of Deputy Collector in the State Civil Service on 28.03.2021 by direct recruitment.
The post of Assistant Development Commissioner (ADC) in the Rural Development Department and Deputy Collector in Revenue Department are placed in the same scale of pay. But the former belongs to State Service and the later to State Civil Service. The field of choice for appointment to Indian Administrative Service includes only the cadre of State Civil Service. The prior service of the applicant is in State Service, therefore that period cannot be reckoned for qualifying period of service for appointment to Indian Administrative Service.
Heard Adv. Dr. K.P. Pradeep, learned counsel for the applicant, Adv. Mr. Thomas Mathew Nellimoottil, SPC, learned Standing Counsel for Respondent No.2 and Adv. Mr. M.M. Salim, Sr. GP , learned counsel for Respondent Nos.3 to 5. Learned counsel for the applicant relied on the judgment of Hon'ble Apex Court in State of Mysore v. Krishna Murthy and others {1973 KHC 713} and drew our attention to para 11, which is reproduced below:-
“Other cases mentioned by the Mysore High Court i.e. State of Punjab v. Joginder Singh, AIR 1963 SC 913 and K. M. Bakshi v. Union of India, 1965 Supp (2) SCR 169, also show that inequality of opportunity of promotion, though not unconstitutional per se, must be justified on the strength of rational criteria correlated to the object for which the difference is made. In the case of Government servants, the object of such a difference must be presumed to be a selection of the most competent from amongst those possessing qualifications and backgrounds entitling them to be considered as members of one class. In some cases, quotas may have to be fixed between what are different classes or sources for promotion on grounds of public policy. If, on the facts of a particular case, the classes to be considered are really different, inequality of opportunity in promotional chances may be justifiable. On the contrary, if the facts of a particular case disclose no such rational distinction between members of what is found to be really a single class no class distinctions can be made in selecting the best. Art.14 and 16 (1) of the Constitution must be held to be violated when members of one class are not even considered for promotion. The case before us falls, in our opinion, in the latter type of cases where the difference in promotional opportunities of those who were wrongly divided into two classes for this purpose only could not be justified on any rational grounds....”
Learned counsel for the applicant also drew our attention to para 10 of the judgement of the Hon'ble Supreme Court in Union of India and others v. Atul Shukla etc. {2014 KHC 4624}, which is reproduced below:
“10.The seminal question that falls for our determination in the above backdrop is whether classification of Group Captains in the Indian Air Force for purposes of age of superannuation, is offensive to Art. 14 of the Constitution. A long line of decisions of this Court that have explained the meaning of equality guaranteed by Art.14 and Art.16 of the Constitution and laid down tests for determining the constitutional validity of a classification in a given case immediately assume importance. These pronouncements have by now authoritatively settled that Art. 14 prohibits class legislation and not reasonable classification. Decisions starting with State of West Bengal v. Anwar Ali, AIR 1952 SC 75 down to the very recent pronouncement of this Court in Dr. Subramanian Swamy v. Director, CBI and Another, AIR 2014 SC 2140 have extensively examined and elaborately explained that a classification passes the test of Art.14 only if (i) there is an intelligible differentia between those grouped together and others who are kept out of the group; and (ii) There exists a nexus between the differentia and the object of the legislation. Speaking for the Court Das J., in Anwar Ali's case (supra) summed up the essence of what is permissible under Art. 14 in the following words:
“The classification must not be arbitrary but must be rational, that is to say, 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 left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) that that differentia must have a rational relation to the object sought to be achieved by the Act. The differentia which is the basis of classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them.”
We observe that there is no challenge to IAS (Appointment by Promotion) Regulations, 1955 (Annexure A-3) and Annexure A-5 notification in respect of KAS. The only contention of the applicant is that her previous service in the State service as ADC in the Rural Development Department of the State Service from 05.09.2016 to 29.03.2021 should also be counted for her eligibility for IAS (Appointment by Promotion) Regulations, 1955. The relevant para 5(2) of the said regulation is extracted below:-
“5(2) The Committee shall consider for inclusion to the said list, the cases of members of the State Civil Services in the order of seniority in that service of a number which is equal to three times the number referred in sub-regulation (1)............Provided also that the Committee shall not consider the case of a member of the State Civil Service unless on the first day of January of the year for which the Select List is prepared he is substantive in the State Civil Service and has completed not less than eight years of continuous service (whether officiating or substantive) in post(s) included in State Civil Service.”
It is admitted and undisputed that the applicant was in State Service as ADC in the Rural Development Department from 05.09.2016 to 29.03.2021 and which does not fall under the State Civil Service. Annexure A-5 notification dated 29.12.2017 provides for method of appointment and qualification for KAS officers in Junior Time Scale from three distinct streams. 1/3rd of vacancies in Junior Time Scale are to be filled up from each of the following three streams :-
STREAM 1 – by direct recruitment
STREAM 2 – by transfer recruitment (from regular employees or approved probationers in any Government Departments)
STREAM 3 – by transfer appointment (from candidates holding 1st Gazetted Post or above in Departments in the Schedule I and equivalent posts in Common Categories listed in Schedule I)/ with different Qualifications in terms of Age and other criteria (regular service requirement for Stream 2 & Stream 3).
Sub-clause 19(b) under clause 19 of the said notification (Annexure A-5) regarding promotion/selection to the Indian Administrative Service, is extracted below for clarity:-
“19(b) On completion of eight years of service in the junior time scale the seniority of the officers in KAS will be fixed. below the seniority of the above said category for promotion to the Indian Administrative Service.
Provided that for such officers in the KAS who have been selected by transfer, the period of service already completed in the second Gazetted Post and above shall be admissible for meeting the qualifying service prescribed from time to time for promotion to the Indian Administrative Service.
Provided further that if a junior officer in KAS meets the eligibility criteria of qualifying service prescribed for promotion to the Indian Administrative Service, such officer shall have precedence in consideration for such promotion, subject to fulfilling other eligibility conditions as applicable.”
This clause provides for counting of past service in the second Gazetted Post and above of KAS officers who joined on transfer. This clause does not enable counting of past government service of direct recruit KAS officers STREAM-1 towards eligibility for IAS by promotion.
We find that relaxation under Clause 19(b) regarding counting of past service is limited to officers who join KAS by Transfer Recruitment(STREAM 2) and Transfer appointment (STREAM 3) who have different eligibility criteria in terms of age and already being in Government service.
In the instant case officers joining KAS through STREAM-1 direct recruit and by transfer recruitment/appointment STREAM-2 & 3 are distinct groups in terms of qualifications for appointment to KAS in terms of age and other criteria, e.g. regular service requirement under the State Government. Direct recruits under STREAM-1 join at much younger age (maximum age limit being 32 years with further age relaxation in case of OBC and SC/ST candidates) viz -a viz Transfer appointment (STREAM-2 upto 40 years with further age relaxation in case of OBC and SC/ST candidates and STREAM-3 upto 50 years).
It can be inferred from above that State Legislature has made this relaxation to STREAM 2 and STREAM 3 appointees as per the stated objection in para 2(b) of notification (Annexure A-5) to provide opportunities for growth for bright, talented and committed officers in Government Service and prepare them for senior level administrative and managerial positions in public service. Therefore, we find that clause 19(b) do not fail the test of ratio laid down by the Hon'ble Apex Court in the judgements quoted supra.
We agree with the contention of the respondents that prior service of the applicant as ADC in the Rural Development Department is in State Service and not in State Civil Service. Therefore, her period in State Service cannot be reckoned for qualifying period of service for appointment to the Indian Administrative Service.
Based on above observations and analysis, we find no merit in the OA and find no reason to interfere with Annexure A-11. OA is liable to be dismissed and dismissed accordingly. No costs. Interim order, if any, stands vacated.