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Judgment
Hon'ble Dr. Sumeet Jerath, Member (A) :
The instant OA has been filed by the applicants under section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-
“a)Allow the Original Application and direct the respondents to grant exemption to applicants as per Rule 19 (2) on the grounds of exceptional hardship and in the light of DOPT provisions on probation and confirmation.
(b)pass appropriate directions to Respondent No. 1 for immediate granting of First Secretary status, placement in JAG and designation as Deputy Secretary from the dates these became due to the applicants;
(c)Set aside the stipulation in the Memorandum dated 29.09.2017,notification dated 12.12.2017, Office Memorandum dated 05.01.2018 placing the applicants on probation and further imposing the condition of confirmation in lieu of successful clearing of CFL as being defunct and obsolete provisions in law.
(d)To direct the respondent no. 1 to restore the seniority lost on account of delay in holding the DPC.
(e)Pass any other relief /s as deem fit and proper to meet the ends of justice.”
The brief facts of the case as per the counsel for the applicants is that the applicants originally belonged to the Indian Foreign Service Branch 'B' cadre in the Ministry of External Affairs and were subsequently promoted to higher grades. They were inducted into the Senior Scale of the Indian Foreign Service with effect from 07.09.2017 and were allotted the year of allotment 2009. According to them, their cases for promotion were not processed in time and the DPC was convened only on 07.09.2017, although, according to their claim, they had become eligible earlier. They submitted that the delay in holding the DPC resulted in loss of seniority and consequential service and monetary benefits, particularly in the case of applicants who claimed that they ought to have been allotted the year 2008 instead of 2009. The applicants further submitted that the Memorandum dated 29.09.2017, whereby the select list for promotion to Senior Scale was issued, imposed a condition that the promoted officers would remain on probation for two years under Rule 17 of the IFS (RCSP) Rules, 1961 and would be confirmed in the Senior Scale only after passing the prescribed examination or test in the compulsory foreign language under Rule 19(1). The applicants contended that such conditions had not been applied to similarly situated officers promoted in earlier years. They relied upon the history of implementation of the Rules and submitted that the condition of CFL had not been imposed upon officers inducted into the Senior Scale from IFS(B) for several decades. The principal grievance of the applicants was with regard to the requirement of passing the CFL examination. They relied upon Rule 19(2) of the IFS (RCSP) Rules, 1961, under which the Central Government may exempt an officer from the operation of Rule 19(1) if, prior to promotion to the Service, the officer had attained the age of forty-five years. The applicants pleaded that they were all above forty-five years of age and that, considering their age and other circumstances, they deserved exemption. They also relied upon the provisions contained in the IFS (PLCA) Rules, 1961 and the regulations made thereunder, particularly the provisions concerning exceptional hardship on account of age. It was also submitted by the applicants that the DoP&T instructions relating to probation and confirmation did not contemplate imposition of probation when promotion took place within the same group of posts. They relied upon the DoP&T Office Memorandum dated 19.05.1983 and the instructions relating to confirmation. According to them, Grade I of IFS(B) and Senior Scale of IFS were both Group 'A' posts and, therefore, there was no justification for subjecting them to a fresh probationary period. On the same basis, they questioned the linkage of their subsequent career progression with confirmation after passing CFL. The applicants further contended that they had been discriminated against in comparison with officers who had been promoted earlier and had not been subjected to the CFL requirement. They referred to orders granting JAG and Deputy Secretary status to officers of earlier years and submitted that similarly placed officers had received such benefits without being required to pass CFL. They therefore claimed First Secretary status, JAG and Deputy Secretary designation from the respective dates on which, according to them, those benefits had become due. They also alleged that the delay in convening the DPC had adversely affected their seniority and promotional prospects. Aggrieved, the applicants made representations before the respondents. The record shows that, by communications issued by the Ministry, they were informed that Rule 19 required passing of CFL for confirmation in the Senior Scale and that relaxation based on age was a matter within the competence of the Ministry. They were accordingly advised to commence their CFL training. The applicants nevertheless approached this Tribunal challenging the aforesaid action and seeking the reliefs noticed above.
To support his case, the counsel for the applicants argued assiduously on the following grounds :-
“A. The actions of the Respondents on all the following aspects have been illegal, arbitrary, unreasonable and against the relevant Rules, Notifications and law applicable in the given facts of the case in hand and thus are required to be set proper in the interest of justice:
i.imposition of condition to undergo probation period of 2 years as per Rule 17 and passing the prescribed examination or test in Compulsory Foreign Language allotted to the applicants as per Rule 19 (1) of IFS (RCSP), Rules, 1961 vide OM dated 05.01.2018 as pre-conditions for confirmation in service while promoting them to Senior Scale followed by Office Order dated 11.05.2018 passed to each applicants herein for passing of the CFL and non-grant of exemption from passing the CFL and non-reply and or rejection of the representation of the applicants in this regard vide communication dated 28.07.2018;
ii.non-grant of status of First Secretary to the applicants who are posted to Missions abroad in different countries, upon promotion to Senior Scale of IFS w.e.f. 07.09.2017.
iii.non-grant of Junior Administrative Grade (JAG) vide OM dated 05.01.2018;
iv.non-grant of Deputy Secretary designation w.e.f. 01.05.2018.
B. The perusal of all the relevant Rules, notifications and laws would unambiguously suggest in all categorical manner that on all the above aspects the Applicants are unnecessarily, unwarrantedly and unreasonably being harassed and have been illegally denied the exemption from passing of the CFL and other entitlements as afore-mentioned.
C. The Rule 34 of Chapter X of the IFS (PLCA) Rules, 1961 reads as under:
"34.Language Study: A member of the Service is expected to study as many foreign language as he may be able to do without detriment to his other duties. He shall be confirmed in service, normally, only after passing an examination in the foreign language allotted to him for compulsory study."
It is respectfully submitted that the perusal of the aforesaid Rule, which is applicable to the members of Branch B of Indian Foreign Service [IFS (B) vide MEA Memo No. 21 (5) GA/62 (EAI/62/1/87) dated 1st June, 1962] also, would indicate that the passing the foreign language cannot be mandatory for confirmation in service. The use of word 'normally' and phrase 'without detriment to his other duties', are of great importance especially in the present lis. In view of the same the imposition of pre-condition of passing of CFL and not granting of exemption from the same is illegal especially in the light of the facts that such conditions have never been imposed in the past until November 2015 by the Respondents to equally placed officers like the Applicants herein. It is respectfully submitted that unlike the direct IFS officers, the Applicants are required to learn the CFL and pass the same at an advanced age with considerable personal responsibilities as well as official duties. Such a stipulation would only cause undue amount of hardship and harassment to the applicants. Further, the applicants with such limitations and encumbrances and coupled with their advanced age are required to study at the same rigorous and exacting standards of Advanced Diploma Level which the direct recruit IFS officers 15-20 years younger than them are required to pursue. This imposition is unjust, not in keeping with the principles of equity and reasonableness which should have guided respondents in their decision making.
D. As per Rule 19 (1) of IFS (RCSP) Rules, the officers will be confirmed in the Senior Scale of Service after passing the prescribed examination or test in CFL allotted to him/her with other relevant provisions of IFS (RCSP) Rules applicable in this regard. Rule 19(2) enables the Central Government to exempt from the operation of sub-rule (1) to any officer who has, prior to the date of promotion to the Service attained the age of forty five years. In other words, considering the totality of the circumstances including the age factor to learn the language there is an exemption clause with regard to passing of CFL. It is respectfully submitted that since all the applicants attained the age of 45 before they were inducted into Senior Scale of IFS, therefore, they are entitled for the exemption from passing of the CFL. Since the inception of the service in 1961 till 2014, the imposition of CFL in order to be confirmed in service was never invoked by the respondents. The imposition of this condition on the applicants who are similarly circumstanced as the officers promoted till 2014 is highly arbitrary, reveals inconsistencies in the decision making of the respondents apart from its discriminatory approach.
E. The Respondents have erred in not appreciating that as per clause 1 of the Annexure XXV of IFS (PLCA) Rules, 1961, (Authority: M.E.A. Memo No. F.21 914) (GA) .60-Vol.ll dated 31.03.1962) a member of Service is normally required before being confirmed in the Service, to pass an examination in a foreign language allotted to him for compulsory study. The Ministry, may, however, at their discretion exempt an officer from passing the required examination if Ministry are satisfied that the officer has entered the service at an age at which the requirement to pass an examination in foreign language will cause exceptional hardship. It is respectfully submitted that the perusal of the said clause would make it clear that exemption can be granted from passing of compulsory foreign language, by the Ministry upon applying its discretion in this regard. Furthermore, the respondents had been granting exemption to the Under Secretaries of IFS' B' promoted to Senior Scale under Rule 19 (2) of these Rules since the inception of these Rules in 1961 till November 2015. There has been no change in the circumstances prompting the respondents to impose this stipulation on the applicants. Considering the age and other circumstances of the applicants, it is respectfully submitted, there cannot be more appropriate situation to grant exemption than the present one.
F. As per Clause 9 (d) of the Regulations for the application of the I.F.S. (PLCA) Rules, 1961 and the decisions there under to the IFS (B) (Authority- M.E.A Memo No. 21 (5)GA/62 (EAI/62/1/87), dated 1st June, 1962, "the requirement of passing the examination at the prescribed level in one compulsory foreign language shall be restricted to the officers in the Integrated grade of the General Cadre, Private Secretaries and Grade I of Branch 'B' who have not attained the age of 37 years at the time of allotment of the compulsory foreign language. Such officers shall, however, not be required to pass the examination in his second foreign language." It is respectfully submitted that on this score also considering the age of applicants, who all are well past 45 years, and otherwise their circumstances, deserve exemption from passing CFL.
G. The Respondents failed to appreciate that the Applicants do not deserve to be subjected to operation of virtually an archaic and obsolete Rule 17 and Rule 19 of IFS RCSP Rules regarding probation and confirmation. In fact, Rule 17 for probation in Senior Scale is applicable in respect of direct recruit IFS officers also. However, the same has never been implemented in their case which only reveals the double standards of the respondents. At the same time collective and holistic reading of all the relevant Rules on this issue further entitles the applicants to get exemption from such irrelevant and stringent conditions of passing of CFL. Pertinently, the DOPT vide its OM no. 18011/1/86-Estt(D) dated 28th March 1988 delinked confirmation from availability of permanent posts and enjoined that confirmation will be made only once in the service of the official which will be in the entry grade.
H. Similarly as per DOPT's instructions issued vide O.M. dated 19th May 1983 there is no requirement for placing persons on probation if the promotion takes place within same group of posts. The Select Lists for promotion to Senior Scale issued from 1961 to 2014 did not carry this provision. However, the Select List on the basis of which applicants have been promoted included this provision notwithstanding DOPT instructions. It would be pertinent to mention that since the inception of the IFS (RCSP) Rules in 1961 till November 2015, the CFL was never allotted to Under Secretaries inducted into Senior Scale and neither were the provisions of Rule 17 and Rule 19 relating to probation/confirmation invoked in their cases.
I. It is respectfully submitted that as a matter of fact, the CFL has been used as a ploy to delay promotions of IFS (B) officers as it is rigorously applied at the induction stage at the same difficult and exacting standards in total disregard of the age of the applicants. This must be viewed in the context of a series of draconian measures adopted by Respondents in the past to curtail career progression of officers from IFS B. In the history of MEA, no DPC of IFS B General cadre was ever held on time. On the contrary, no DPC of IFS was ever delayed. The DPC of applicant was delayed by almost one and a half years. The DPC for induction to Senior Scale for the year 2017-18 is still to be held and is now late by almost 2 years. It is pertinent to mention that in all Indian Missions/ Posts abroad there are Translators who facilitate Government work in local language. Therefore it is not indispensable from a functional point of view for Officers at advanced age group to learn a foreign language with undue hardship. The time spent on CFL could be effectively used for carrying out significant works in the Missions and attend to other additional responsibilities which come with age.
J. Applicants are legitimately concerned that all the above-mentioned arbitrary decisions of Respondents smack of malafide intent to stop their career progression as they have been inducted from IFS B Branch. It is also worthwhile to note that while Respondents have intentionally stalled the admissible grades of the Applicants further to their induction in Senior Scale of IFS, they have at the same time taken action for grant of similar entitlements to the 2009 batch IFS direct recruits, thereby throwing into wind the basic tenets of administrative jurisprudence. Such biased approached laced with malafide intent on the part of Respondents 1-3 have also caused severe anomalies and infirmities in the inter se seniority of the Applicants and those direct recruit IFS officers of 2009 batch both at Headquarters and in Missions abroad causing functional disruption. It is respectfully submitted that the actions of the Respondents are contrary to declaration of law made by the Hon'ble Supreme Court in Ajay Hasia vs Khalid Mujib reported in AIR 1981 487 wherein it is held that the concept of reasonableness and non-arbitrariness pervades the entire constitutional scheme and is a golden thread which runs through the whole fabric of constitution.
K. The Applicants were promoted to the Under Secretary grade in December 2011, May 2012 and November 2012 and had completed 3 years regular service in December 2014, May 2015 and November 2016. The applicants were eligible for promotion as on 1st April 2016 for the recruitment year 2016-17. However, the DPC took place on 7th September 2017 after a delay of one and a half years due to administrative apathy on part of Respondents. This led to a substantial loss of seniority for the applicants as also relegation of the year of allotment by one year in respect of some of the applicants having a bearing on their future promotional prospects. There was also a considerable pecuniary loss to the applicants as a consequence of this delay. It is requested that at least some of the applicants ought to have been protected by relaxing Rule 15 (4) of IFS (RCSP) Rules.
L. The Respondent vide Memorandum dated 29.09.2017 issued Select list approved for promotion to Senior Scale of IFS from Grade I of IFS (B) for 2016-2017 panel after a delay of one and a half years in violation of DOPT guidelines on holding of DPCs. As per these guidelines the Select List should have been issued in March 2016 for the ensuing recruitment year 2016-17. The memorandum dated 29.09.2017 further illegally laid down the condition for a probation period of two years in respect of the officers included in the Select List including the applicants and in terms of Rule 19 (1) qualifying of CFL as a precondition for confirmation. It is respectfully submitted that for earlier batches of similarly placed officers till 2014, no such preconditions were laid down by the respondents. The Applicants are figuring at different serial numbers of the said select list respectively. With great respect, the discriminatory approach has again been adopted by granting the DS rank w.e.f. May 01, 2018 only to the DR IFS officers of 2009 batch and leaving the YOA 2009 officers aside. Previously it was a normal practice in the Ministry to promote DR IFS officers and inducted officers of the same batch together. There is no legal reason to deny and disentitle the applicants from grant of DS designation w.e.f. May 01, 2018.
M. Similarly, vide order Q/PA-11/68211/2000 dated 16.06.2017 the Respondent No.1 granted Junior Administrative Grade (JAG) to the similarly placed officers whose Year of Allotment (YOA) is 2008 like the Applicants herein and a year senior to the Applicants herein. However, the Applicants have not been granted JAG. No reason is forthcoming for causing such discriminate qua the applicants herein.
N. By notification dated 12/12/2017 the respondents appointed the applicants and other similarly 12 officers of Grade I of IFS (B) to officiate in the grade of Senior Scale of Indian Foreign Service with effect from 07.09.2017 on the basis of Memorandum dated 29.09.2017. It is however pertinent to mention that the said promotion was made subject to 2 conditions that were to undergo probation for 2 years from the date of promotion as well as passing of prescribed examination or test in a compulsory foreign-language allotted to him/her. Such conditions had never been imposed upon similarly placed officers up until 2014. In fact, Rule 17 for probation in Senior Scale is applicable in respect of direct recruit IFS officers also. However, the same has never been implemented in their case which only reveals the double standards of the respondents. It is respectfully submitted that the whole and basic spirit of IFS (PLCA) and IFS (RCSP) Rules has been violated in allocation of CFL to the applicants. The CFL should be allotted to the officers before the age of 37 years and the officer who has attained the age of 45 years before promotion to IFS, should be exempted from passing the CFL. It is to be taken into kind consideration that the fixation of age of 37 years and 45 years with other guiding words like hardship etc.etc., has some pivotal and practical logic in the wisdom of the legislature, which has been well reflected in last so many years, wherein, no such conditions are imposed on officers, similarly placed like the applicants herein. At the same time, it further requires basic and practical appreciation that to learn an altogether new and moreover a foreign language requires foremost basic state of faculty of an individual taking into account her/his advanced age unlike that of direct recruit IFS officers who study the foreign languages between the ages of 25-30 years, prescribed standard of learning, different set of circumstances, discharge of personal responsibilities and so on and so forth. With great respect, the applicants having been subjected to such a situation of imposition of CFL at such an advanced age which on the touchstone of fair, just and reasonable principles, can only be regarded as manifest arbitrariness and a legally unacceptable phenomena as per a number of judgments of the Apex Court. In A.K.Kraipak vs UOI SC 150 para 13, the Hon'ble Apex Court observed, 'The instrumentalities of the State must be charged with the duty of discharging their functions in a fair and just manner.' While deciding on CA nos. 4717-4719 of 2013 under its Civil Appellate jurisdiction in the matter of UOI and ors vs Atul Shukla, the Hon'ble Apex Court had piquantly observed, 'Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice. In fact latter comprehends the former. Both are inhibited by Article 14 and Article 16.'
O. An order dated 04/01/2018 was passed by the respondents to the effect that consequent upon promotion the officers mentioned therein, including the applicants herein, pay was fixed in level 11 of 7th CPC's pay matrix w.e.f. 07.09.2017. It is respectfully submitted that the perusal of the said order would demonstrate that there was unexplained and unreasonable delay of 4 months in publishing the said order at the cost of rights and interests of the applicants herein. Further, though promotion was granted in the Senior Scale however none of the applicants or similarly placed offices therein have been granted their due of JAG as well as the status of First Secretary w.e.f. 07.09.2017 as per their entitlement especially knowing well that all these applicants are posted in Missions abroad and, therefore, entitled for status of First Secretary rather than Second Secretary as indicated in the said order dated 04.01.2018. It is to be noted that the denial of First Secretary status, on an illegal and mala-fide basis has resulted in acute pecuniary loss to the applicants. Moreover these applicants have been given only 1 increment on promotion when they are entitled for more. Pertinently, vide notification published in the Gazette of India August 29, 2008, Gol decided that two additional increments will be granted to the officers at the time of their promotion to the grade of Senior Scale of IFS. As this facility has already been extended to the officers promoted from Junior Scale of IFS, the same should have also been granted to the officers promoted from Grade I of IFS B. At the same time, it is equally crucial to indicate that even without promotion to Senior Scale of IFS, the Applicant No.1 and 2 were eligible for grant of First Secretary status w.e.f. December 02, 2017 at the least having completed six years of service in Grade-l of IFS B on the date. The other applicants became eligible for First Secretary status w.e.f. 11th May 2018 even without promotion. Unfortunately, this unwarranted and unwanted state of affairs, sans any reasonable reason of communication, applies to all other applicants also. With great respect while the IFS officers of 2009 batch have been given JAG rank from due date i.e. January 01, 2018, the same has been denied to the applicants which is completely illegal and unacceptable in law. It is a matter of record that the promoted officers of previous batch (YOA 2008) were also granted JAG w.e.f. their due date i.e. January 01, 2017.
P. The delay in holding DPCs at the proper time caused delay in issuance of Year of Allotment from the year 2008 to 2009 in respect of some of the Applicants. The Applicants were granted 2009 as Year of Allotment on induction into IFS vide OM dated 05.01.2018. The perusal of the said OM would further indicate that the illegality of the imposition of twin conditions, as aforesaid, i.e. undergoing probation for 2 years as well as passing of CFL is perpetuated. Moreover, in the case of applicants Nos. 1 and 2, the Notional month and year of allotment was shown as September 2009, whereas since these 2 officers were promoted as Under Secretary in the year 2011, they were entitled to have their year of allotment as 2008 rather than 2009 had the DPC being held on time. It is respectfully submitted that the laying down of the condition to undergo probation for 2 years is completely against DOPT OM No. DoPT's OM No. 21011/2/80-Estt.(C) dated 19.05.1983, according to which there is no probation for promotion from one grade to another but within the same group of posts. There is no justification in putting the officers promoted from Grade-I of IFS B to Senior Scale of IFS on probation as both are Group A posts. Further, duties designation, interchangeability of posts at hqrs as well as in Missions abroad and even the Grade Pay/level in Pay Matrix are same for both the posts. With great respect in view of such clear mandate deviation in the present case, does not satisfy the requirement of fairness and rationalism.
Q. It is further respectfully submitted that in any embassy about 50% of staff are recruited from the local area, who are fully conversant with the local language and customs, official procedures and other requirements like liaising with local authorities/agencies for smooth day to day functioning of the Missions. There has never been any instance of an IFS' B' officer posted in the Mission failing to discharge his duties simply because he did not know the language of the country. Even the direct recruit IFS officers are seldom posted again to the country of their language training or to the countries where that language is widely prevalent. Furthermore, in the case of direct recruit, their age is an important factor for successful pursuit of CFL study. In contrast, in the case of Applicants herein, their advanced age coupled with their varied responsibilities and circumstances unlike those of direct recruits makes imposition of such a pre-condition, not only unprecedented but a patent manifestation of arbitrariness and illegality.
R. There are no grounds for denial of rightful entitlements of the applicants which include grant of First Secretaryship w.e.f. 07.09.2017 i.e the date of their induction into Senior Scale, placement in JAG w.e.f 01.01.2018 in consideration of their completing the qualifying service from the YOA, grant of Deputy Secretary grade from May 2018 upon their placement in JAG. Further, given that there is no probation when the promotion takes place between the same group of posts, Group A in this case, and also that there is no confirmation again on promotion as DOPT instructions clearly mandate, the imposition of CFL on applicants rests on an obsolete and defunct provision of the rules. The respondents by imposing harsh and unjust stipulation which was hitherto never implemented for almost 55 years have acted in an arbitrary and unfair manner against the principles of natural justice and fair play. Also the respondents have acted illegally by stipulating probation and confirmation when the DOPT instructions as highlighted in preceding paras are clear and categorical in this regard.
S. The respondents cannot now insist on undertaking of the CFL and clearing of the exam at the Advanced Diploma Level by the Applicants as the former miserably failed in their administrative duty to impart CFL training to these Applicants when they were working in the grade of Section Officers in terms of para 9 (d) M.E.A. memo No. 21 (5) GA/62 (EAI/62/1/87) dated 1st June 1962 relating to Regulations for the application of the IFS (PLCA) Rules, 1961 and the decisions there under to the IFS (B). As per these regulations, no Section Officer who has been allotted CFL after the age of 37 years is required to clear CFL exam at prescribed level. All the applicants who were Section Officers earlier before being promoted to higher grades and at the prescribed age to undertake CFL study were never allotted any foreign language by the respondents. The Applicants now at an advanced age cannot be put to such hardship for what was primarily an administrative failure on part of the respondents which has been aggravated by denial of their legitimate dues as underlined in preceding paras.”
The official respondents opposed the O.A and vehemently argued that the respondents have contested the OA. They submitted that the IFS (RCSP) Rules, 1961 regulate recruitment, cadre, seniority and promotion in the Indian Foreign Service and that Rule 17 specifically provides for a two-year period of probation for an officer promoted to the Senior Scale. Rule 19, according to the respondents, makes passing of the prescribed examination or test in the compulsory language a condition for confirmation in the Senior Scale. The respondents have also pointed out that Rule 19(2) confers power upon the Central Government to grant exemption and does not create an absolute right in favour of an officer to demand exemption. The respondents further submitted that the matter relating to CFL training and confirmation was examined by the Ministry, in consultation with DoP&T, from around 2015 onwards and it was decided that the relevant provisions concerning probation, confirmation and mandatory language examination were to be enforced. Officers promoted in the subsequent recruitment years were accordingly allotted CFL training. They stated that several officers promoted in earlier batches had completed their language training and examination and had thereafter been confirmed in service. They also referred to an officer promoted along with the applicants who had successfully completed the CFL requirement. The respondents specifically submitted that the applicants' representations were duly considered by the competent authority and that they were informed that there would be no exemption from passing CFL. According to them, some of the applicants had in fact commenced CFL training, while certain specific requests for transfer connected with CFL training had also been considered. The respondents have therefore contended that the applicants cannot seek exceptional treatment while declining to comply with the applicable service requirement. The respondents denied the interpretation placed by the applicants upon the IFS (PLCA) Rules, 1961. They submitted that the provisions relied upon by the applicants were not applicable in the manner suggested by them to promotion to the Senior Scale of the Indian Foreign Service. It has also been submitted that the applicants cannot claim exemption or relaxation as a matter of right. They maintained that the Select List and the subsequent orders were issued in accordance with the applicable Service Rules. With regard to the claim for First Secretary status, the respondents relied upon the Office Order dated 06.05.2019 and submitted that, in the case of officers promoted from Grade I of IFS(B) to Senior Scale of IFS, First Secretary status is subject to completion of the prescribed period of service as well as completion of probation and confirmation in the Senior Scale. Thus, according to the respondents, the applicants could not claim such status independently of the conditions governing confirmation. The respondents also pointed out that officers from the 2015-16 recruitment year who completed CFL were confirmed in service and thereafter promoted to JAG and Deputy Secretary. They relied upon this subsequent development to submit that the impugned requirement was not merely theoretical but was actually being applied as part of the process governing confirmation and further advancement in the Indian Foreign Service.
During the pendency of the OA, the applicants filed M.A. No. 2245 of 2019, invoking the jurisdiction of this Tribunal under Rule 11 of the Central Administrative Tribunal (Procedure) Rules, 1987, seeking interim directions and permission to urge additional grounds as well as to bring subsequent developments on record. Learned counsel for the applicants contended that subsequent to the filing of the O.A., the respondents were continuing to push coercive steps, compelling the applicants to undergo Compulsory Foreign Language (CFL) examinations and threatening adverse career consequences, including reversion or stagnation, despite their statutory eligibility for age-based exemption under Rule 19(2) of the IFS (RCSP) Rules, 1961. It was urged that during the operational pendency of the litigation, withholding the due financial increments, higher diplomatic status (First Secretary), and subsequent promotions (JAG and Deputy Secretary) would cause irreversible and irreparable loss and injury to the applicants, altering the service status irretrievably while the core legality of the impugned rule-enforcement was sub-judice. The applicants sought an interim stay on the operation of the impugned individual deployment and training orders requiring them to clear the Advanced Diploma level CFL test, and prayed for interim protection protecting their current seniority, pay scales, and positioning pending final adjudication of the O.A.
The respondent-Ministry vehemently opposed M.A. No. 2245/2019 through a detailed counter-affidavit/reply, arguing that the interim relief sought by way of the M.A. was virtually identical to the final relief prayed for in the main O.A., and therefore, granting such interim protection would amount to allowing the O.A. at an interlocutory stage without trial on merits. It was submitted that staying service conditions or language requirements would paralyze administrative discipline and create an anomalous precedent within the diplomatic cadre where mandatory specialized qualifications could be bypassed through interim judicial orders. The respondents reiterated that the process of language learning and probation are integral components of service re-designation, and stalling these procedures would directly prejudice India's diplomatic representation abroad, where officers must meet rigorous service competence criteria.
In his rejoinder, the applicants reiterated and reinforced their stand that as per established DoPT guidelines and general service jurisprudence, a probation period cannot be legally imposed when an officer is promoted from one grade to another within the same Group A service (moving from Grade I of IFS Branch 'B' to the Senior Scale of IFS, both being Group A posts). They emphasized that since they were already confirmed government servants in their feeder cadre, subjecting them to a fresh probation period upon promotion is arbitrary and contrary to administrative norms. The rejoinder highlighted that for over five decades (from the inception of the 1961 Rules up to 2016), officers inducted into the Senior Scale of IFS who had crossed the age of 45 years were routinely granted exemption from the Compulsory Foreign Language (CFL) test. The applicants contended that abruptly altering this long-standing, consistent administrative practice specifically for their batch is discriminatory, violates the doctrine of legitimate expectation, and amounts to arbitrary state action under Articles 14 and 16 of the Constitution of India. While acknowledging that Rule 19(2) uses the term "may" for granting age-based exemptions, the applicants argued that statutory discretion cannot be exercised arbitrarily, whimsically, or discriminatorily. They submitted that the respondents failed to provide any rational, objective justification for denying them the exemption, especially given that older promotee officers in previous batches were granted similar reliefs seamlessly. The applicants countered the respondents' defense regarding the withholding of First Secretary status, Junior Administrative Grade (JAG), and Deputy Secretary designation. They argued that making higher diplomatic status and routine career progressions hostage to a newly innovated CFL interpretation for officers over 45—who are advanced in their careers—creates severe stagnation, causes grave financial and professional prejudice, and punishes officers unjustly for fulfilling standard promotion criteria.
We have considered the rival submissions and have carefully gone through the pleadings and documents placed on record. The principal question which arises for consideration is whether the applicants had an enforceable right to exemption from passing the CFL examination merely because they had attained the age of forty-five years before their promotion. Rule 19(1) of the IFS (RCSP) Rules, 1961 provides that an officer of Grade I of the General Cadre of IFS(B) shall not be eligible for confirmation in the Senior Scale unless, to the satisfaction of the Central Government, he has passed the prescribed examination or test in the compulsory language allotted to him. Sub-rule (2) provides that the Central Government may exempt from the operation of sub-rule (1) an officer who, prior to the date of promotion to the Service, had attained the age of forty-five years. The language of sub-rule (2) is significant. The Rule uses the expression “may exempt” and not “shall exempt”. Thus, attainment of the age of forty-five years does not by itself confer an automatic or vested right of exemption. The provision confers a discretion upon the competent authority to consider whether exemption should be granted in the facts of an individual case. In the present case, the respondents have specifically stated that the representations of the applicants were considered by the competent authority and that exemption was not granted. The respondents have further explained that the Ministry had taken a decision, with the approval of the competent authority, to exempt officers who had attained the age of fifty-five years on the date of promotion. The applicants, though above forty-five years of age, did not fall within the said criterion. Nothing has been placed before us to establish that the competent authority had no power to adopt such a policy or that the decision was taken without application of mind. Merely because the applicants consider their circumstances to constitute exceptional hardship cannot result in substitution of the discretion vested in the competent authority by Rule 19(2). The Tribunal cannot itself grant an exemption under the Rule in place of the competent authority unless the decision-making process is shown to be contrary to the statutory provision, arbitrary, discriminatory or otherwise legally unsustainable. No such infirmity has been established in the present case. The contention that the requirement was not enforced in respect of officers promoted before the relevant period also does not, by itself, create a right in favour of the applicants. The respondents placed on record that, following examination of the matter in consultation with DoP&T, the provisions relating to probation, confirmation and CFL were directed to be enforced. The applicants have not been able to demonstrate that the Rules themselves were amended so as to delete the requirement of CFL or that the respondents were legally precluded from enforcing a requirement contained in the statutory Rules merely because it had not been consistently enforced in earlier years. The reliance placed upon the DoP&T instructions relating to probation and confirmation also does not advance the case of the applicants to the extent claimed. The applicants have essentially sought to invalidate the specific conditions flowing from Rules 17 and 19 of the IFS (RCSP) Rules, 1961 by relying upon general executive instructions. In the absence of a clear inconsistency demonstrated between the statutory Rules governing the Indian Foreign Service and the general instructions relied upon by the applicants, the specific statutory service provisions have to govern their case. We also find no merit in the submission that the applicants were entitled to First Secretary status, JAG and Deputy Secretary designation irrespective of confirmation. The respondents demonstrated that confirmation in the Senior Scale was linked with compliance with the requirements of the applicable Rules and that further promotional and rank-related benefits were consequential upon such confirmation. The applicants cannot seek the consequential benefits while simultaneously challenging the condition which governs their eligibility for confirmation. The allegation of discrimination based upon the treatment of officers promoted in earlier years also cannot be accepted in the absence of a demonstrated legal right to identical treatment contrary to the governing Rules. The fact that a particular statutory requirement was not enforced, or was differently applied, in an earlier period does not amount to a representation that the requirement would never thereafter be enforced. The respondents placed material to show that the requirement was being applied to subsequent batches as well. As regards the grievance concerning delay in holding the DPC and the alleged loss of year of allotment, the applicants have not established before us that the delay was such as would automatically confer upon them a right to retrospective promotion, restoration of seniority or consequential promotional benefits in disregard of the applicable Rules. The relief sought by the applicants in this regard is also substantially connected with the further promotions and benefits which they claim after induction into the Senior Scale. Once the principal challenge to the requirement of probation, confirmation and CFL fails, the consequential claims cannot survive independently on the material presently before us. It is also relevant that the respondents have not merely relied upon the impugned orders but have demonstrated that the competent authority considered the applicants' representations and communicated its decision to them. The respondents specifically stated that some of the applicants had commenced CFL training and that officers who completed the requirement were subsequently confirmed and granted further promotional benefits. The applicants have therefore not been able to establish that the impugned action was without jurisdiction or that the requirement was being applied selectively to them in disregard of the governing Rules.
We have also taken note of the fact that the OA seeks, in substance, a direction to the respondents to exercise the discretion under Rule 19(2) in a particular manner and to grant consequential promotional benefits by treating the applicants as confirmed without compliance with the condition prescribed under Rule 19(1). Such a direction cannot ordinarily be issued when the statutory provision itself vests discretion in the competent authority and the competent authority has already considered and rejected the request for exemption.
Upon considering the rival contentions raised in M.A. No. 2245/2019, this Tribunal noted that since the main O.A. itself has been thoroughly heard and adjudicated upon on its merits—finding the actions of the respondents to be fully in accordance with the IFS (RCSP) Rules, 1961— the interim reliefs sought in the M.A. do not survive for separate standalone consideration. Consequently, M.A. No. 2245/2019 stands disposed of accordingly.
In view of the foregoing discussion, we find that the applicants have failed to establish any legal infirmity in the action of the respondents in requiring them to comply with the conditions prescribed under Rules 17 and 19 of the IFS (RCSP) Rules, 1961. They have also failed to establish an enforceable right to exemption under Rule 19(2), or any right to the consequential benefits of First Secretary status, JAG and Deputy Secretary designation without satisfying the applicable requirements for confirmation.
This matter was heard at some length by this Tribunal on 31.08.2026 and interalia, the following order was passed :
3.Learned counsel for the applicants submits that, in terms of the rules applicable to the case, the applicants were required to clear the Certified Foreign Language (CFL) examination in order to be considered for their next promotion.
4.However, by the Office Order dated 28.12.2020, issued by the respondents subsequent to the filing of the Original Application, the respondents revised and issued a revised training programme for probationers.
5.It is submitted that, pursuant to the subsequent developments, the applicants have also progressed in their respective careers and have since been promoted.
6.In view of the aforesaid subsequent developments, the grievance raised by the applicants in the Original Application has become stale, and the issue no longer survives for consideration by this Tribunal. In fact, the matter has become infructuous.
In the light of the above, we are of the considered opinion that the instant OA deserves to be dismissed as the matter has become infructuous and is accordingly dismissed. Pending MA, if any, also stands disposed off in similar fashion. However, there will be no order as to costs.