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PETITIONER: SHRI PRATAP SINGH

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       21/11/1996

BENCH: S.C. AGRAWAL, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      NANAVATI, J.      The  order   passed  by   the  Central   Administrative Tribunal, Principal  bench, new  Delhi, dismissing  his O.A. No. 3114  of 1991,  is challenged  by the  appellant in this appeal.      The  appellant   appeared   at   the   Civil   Services Examination  (CSE)   held  by   the  Union   Public  Service Commission (UPSC)  in the  year  1989.  The  result  of  the examination was  declared on  31.5.90 He was not recommended by the  UPSC for any appointment. he, therefore, appeared at the CSE  1991. Preliminary  Examination was  held on 9.6.90, and its  result was  declared on  7.8.90.  He  was  declared qualified to  appear in  the Main  Examination. The  written Examination commenced  on 17.12.90  and ended  on  28.12.90. Before the  result  of  1990  Examination  was  declared  he received a  letter dated  9.1.91 from  the UPSC  on  14.1.91 informing him  that as  a  result  of  some  candidates  not joining or  not being  available/eligible for appointment or not being  found medically  fit, his  name  was  recommended through a  supplementary list  prepared on  the basis of the result of  1989 Examination. he was further informed that he would be  considered for appointment to the Central Services Group ’A’/Group  ’B’ Service  on the  basis of  his rank and preference, if  he was otherwise found eligible. He was also given an  opportunity to  revise the  order  of  preferences indicated by him earlier. By the said letter he was directed to intimate specifically if he was interested in joining the Central Industrial  Security Force  Group ’A’ (CISF) or not. The appellant  did not  respond to  this letter and remained silent. Then  by a  letter dated 21.6.91, received by him in the first  week of  July 1991, he was offered an appointment as Assistant  Commandant in  the CISF.  He was also informed that if  he desired  to accept  the  offer  then  he  should despatch the  agreement and  the  declaration  and  complete other  formalities.  He  did  nothing.  This  time  also  he remained silent  and did  not inform the authorities that he was not willing to accept it.      Meanwhile, the  appellant having passed some other UPSC Examination was  appointed on  25.2.91 to  the Border  Roads

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Engineering Services.  In the  first week  of June  1991 the result of  the CSE 1990 (Main) was declared and on the basis thereof he was called to appear in the interview/personality test. He  appeared before the Interview Board of the UPSC on the specified  date. On 31.7.91 the final result of the 1990 Examination was declared and he was assigned Rank No. 299 in the merit  list. This high ranking in the merit list enabled him to  be allocated  to a  better Group  A service, namely, Indian Revenue Service (IRS). On 9.9.91 he received a letter dated 31.8.91  intimating that  he was  being considered for appointment to  the IRS  on the  basis of the result of 1990 Examination. He  was informed  that it  was only a tentative allocation and  might undergo  a change  on consideration of his rank  and expressed preferences. He was further informed that a  formal offer  of appointment would be sent to him by the concerned  Cadre Controlling  Authority of  the  Service after final  service allocation was made. He was directed to report to  the Director,  S.V.P.N.P. Academy,  Hyderabad  on 15.9.91, if  he was willing to be considered for appointment to that  Service. As he was selected for the IRS he resigned as an  Engineer in  the Border Roads Engineering Service and reported  at   the  Academy   at  Hyderabad  for  the  third foundational course  meant for  probationers joining IRS. On 20.12.91 he  received  a  letter  dated  17.12.91  from  the Ministry of Personnel and Training informing him that on the basis of the result of the 1989 Examination he was allocated to CISF and that he should report to the Assistant Director, National Industrial  Security Academy at Hyderabad for basic training  commencing   from   30.12.91   immediately   after conclusion  of   the  foundational   course  which   he  was undergoing. He  was further  informed that  in view  of  the provisions contained in the second proviso to Rule 17 of the Civil Services  Examination Rules  he was  not eligible  for allocation to  Group A  service on  the basis  of  the  1990 Examination and  was, therefore, not so allocated. Aggrieved by  that   communication  dated   17.12.91   the   appellant approached   the   Central   Administrative   Tribunal   and challenged the  action of  the authorities  as arbitrary and illegal.      Two contentions  were raised  before the  Tribunal. The first contention  was that Rule 17 would apply only to those candidates in  respect of  whom the conditions in the second proviso to  Rule 4  are fulfilled. The second contention was that in  any case  Rule 17 did not apply to the appellant as he was not a candidate who had been approved for appointment to Central  Services Group  ’A’. The  Tribunal rejected both these contentions  and held  that Rule  4 does not exclude a belated  intimation   regarding  allocation   and  as   such intimation was  given to  the appellant  before the CSE 1990 was over  the second  proviso to Rule 4 became applicable to the appellant  and consequently  the provisos t Rule 17 also became applicable  to him.  The Tribunal also held that Rule 17 can  operate independently  of Rule  4. It also held that the appellant was ’approved for appointment’ as contemplated by Rule  17 and, therefore, also the Government was right in not allocating  the appellant  to a Group ’A’ service on the basis of  CSE 1990.  Taking this view the Tribunal dismissed the appellant’s application. Mr. Srinivasan, learned counsel appearing for  the appellant  has not  only  challenged  the finding of the Tribunal that the appellant can be said to be ’a candidate who has been approved for appointment’ but, has forcefully submitted  that the decision of the Tribunal that the first  proviso to  Rule 17  can operate independently of Rule 4 is clearly wrong. He also submitted that the Tribunal has not  correctly interpreted  Rule 4  and has  erroneously

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come to  the conclusion  that the second proviso to the said rule applied  to the  case of  the appellant.  On the  other hand, the  learned counsel appearing for the respondents has supported the  order passed  by the  Tribunal  on  the  same grounds which were urged before it.      Rules a  and 17  in so far as they are relevant for the purpose of this appeal read as under:-      "4. Every  candidate  appearing  at      the Examination,  who is  otherwise      eligible, shall  be permitted  four      attempts   at    the   Examination,      irrespective  of   the  number   of      attempts he  has already availed of      at the  AS etc. Examination held in      previous  years.   The  restriction      shall be  effective from  the Civil      Services Examination  held in 1979.      Any  attempts  made  at  the  Civil      Services (Preliminary)  Examination      held in 1979 and onwards will count      as attempts for this purpose:      Provided further  that a  candidate      who on  the basis of the results of      the   previous    civil    Services      Examination, had  been allocated to      the  I.P.S.  or  Central  Services,      Group "A"  but  who  expressed  his      intention to  appeal  in  the  next      civil Services  (Main)  Examination      for competing  for IAS, IFS, IPS or      Central Services, Group "A" and who      was permitted  to abstain  from the      probationary training  in order  to      so appear,  shall be eligible to do      so, subject  to the  provisions  of      Rule  17.   If  the   candidate  is      allocated to a service on the basis      of the  next  civil  Services  Main      Examination he  shall  join  either      that  service  or  the  service  to      which he was allocated on the basis      of  the   previous  C.S.E.  failing      which his allocation to the service      based on  one or both examinations,      as the  case may  be,  shall  stand      cancelled    and    notwithstanding      anything in Rule 8, a candidate who      accepts allocation to a service and      as appointed to a service shall not      be eligible  to appear again in the      Civil Services  Examination  unless      he  has  first  resigned  from  the      service.      17. 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      Service at the time of appointment.      provided that  a candidate  who has

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    been approved  for  appointment  to      Indian  Police   Service.   Central      Service,  Group  "A"  mentioned  in      Col. 2  below on  the results of an      earlier   examination    will    be      considered only  for appointment in      services  mentioned   against  that      service in  Col.  3  below  on  the      results of this examination. ------------------------------------------------------------ Sl.        Service to                      Service for which No.        Which approved                   eligible to            For appointment                  compete ------------------------------------------------------------ 1.         Indian Police                    IAS, IFS and            Service                         Central Services,                                             Group "A" 2.         Central Services                 IAS, IFS and            Group "A"                        IPS ------------------------------------------------------------      Provided further  that a  candidate      who  is   appointed  to  a  Central      Service, Group  "B" on  the results      of an  earlier examination  will be      considered only  for appointment to      IAS, IFS, IPS and Central Services,      Group "A"."      Rule 4 is an eligibility rule and the main part of that rule permits a candidate to appear at the said examination n all four  times. The second proviso to rule 4 restricts this right  of  a  candidate  further.  It  provides  that  if  a candidate is  allocated to  a service  on  the  basis  of  a particular examination  and is  appointed to  a  service  he cannot thereafter  appear again  in the  CSE unless he first resigns from  the service.  It also restricts the right of a candidate to avail of four Opportunities by providing that a candidate who on the basis of the result of the previous CSE had been  allocated to  the IPS or Central Service Group ’A’ but who  expressed his  intention to  appear in the next CSE (Main) for  competing for  IAS, IFS, IPS or Central Services Group  ’A’  and  who  was  permitted  to  abstain  from  the probationary training  in  order  to  so  appear,  shall  be eligible to  do so,  subject to the provisions of Rule 17. A Candidate who  is allocated  to the  IPS or Central Services Group ’A’  on the basis of the result of the previous CSE is permitted to  appear in  the next  CSE with a view to better his chances  or to  improve his  prospects. But he can do so provided he  expresses his  intention to  appear in the next CSE for  competing for  IAS, IFS,  IPS or  Central  Services Group ’A’  and if  he  is  permitted  to  abstain  from  the probationary training  in order  to  so  appear.  Even  this eligibility is  made subject to the provision of Rule 17. If the permission as contemplated by this proviso is granted to a candidate  and if  the candidate is allocated to a service on the basis of the next CSE then he has an option either to join that  service or  the service to which he was allocated on the  basis of  the previous  CSE. If he does not exercise this option  his allocation  to the  service based on one or both the examinations will stand cancelled.      The said proviso thus carves out an exception to Rule 4 and restricts the right of a candidate to appear for all the permitted attempts  at the  examination  if  the  conditions specified in  the proviso  are satisfied.  Obviously, such a provision has  to be  construed strictly  and can be applied only when the pre-requisite conditions are satisfied.

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    The second proviso to Rule 4 refers to Rule 17 and thus both the rules are inter-connected in the matter of defining eligibility of  a candidate.  Whereas Rule  4  provides  for eligibility  for   appearing  at  the  examination  Rule  17 provides for eligibility for appointment to various services on the  basis of  the result  of  the  examination  and  the preferences expressed  by the  candidate. The  main part  of Rule  17  provides  for  giving  due  consideration  to  the preferences expressed  by the candidate for various services at the  time of  his application,  subject to  the rules  or regulations in  that behalf.  The first proviso to that rule restricts such  consideration by  providing that a candidate who has  been  approved  for  appointment  to  India  Police Service/Central Civil  Services, Group  ’A’ on  the basis of the result of an earlier examination will be considered only for appointment  in services  mentioned in  Col. 3  of  that proviso, on the basis of the result of the next examination. it thus  puts a  further restriction  on the  choice of  the candidate to appear again at the subsequent examinations and compete for  a higher  or better  service  if  he  has  been approved for  appointment for  any of the specified services on the  basis of  the result of an earlier examination. Like Rule 4  which provides  for number  of times  a candidate is eligible to  compete at  the CSE,  Rule 17  provides for the services for  which he  is eligible  to compete.  The  first proviso to  Rule 4  further restricts  is eligibility to the extent mentioned therein to compete again at the CSE once he is allocated  to the  IPS or  Central Services, Group ’A’ on the basis  of the  result  of  the  previous  CSE.  The  two provisos  to   Rule  17   likewise  further   restrict   the eligibility of  the candidate  to compete  for a  higher  or better service once he is approved for appointment to IPS or Central Services,  Group ’A’.  The provisos  to  both  these Rules deal  with the case of a candidate who after appearing at the  earlier examination  has again  appeared at the next examination to  compete for  a higher  and  better  service. Thus, the  second proviso  to Rule 4 and the two provisos to Rule 17  are not  only inter-connected  but along with other relevant provisions make an integrated scheme as regards the eligibility  of   such  a   candidate  for   allocation  and appointment to  a service. Whereas the second proviso t Rule 4 specifically  makes the  eligibility thereunder subject to the provisions  of Rule  17 also  the provisos to Rule 17 do not specifically  refer to  the first  proviso to Rule 4 but the moment  a candidate  appears at the next examination the restriction contained in the first proviso to Rule 4 becomes applicable to  him and,  therefore, the provision to Rule 17 cannot have  independent application  to a candidate who has appeared at the next examination. Therefore, the provisos to Rule 17  though they  appear to have independent application or operation  they cannot operate independently in case of a candidate who  has been allocated to a particular service on the basis of the result of the earlier examination. Before a candidate is  approved for  appointment to  IPS  or  Central Services, Group  ’A’ he  has to be allocated to that service and for  that reason  the first  proviso to  Rule will start operating earlier than the provisos to Rule 17 can apply. We are, therefore,  of the opinion that the provisos to Rule 17 can have  no  independent  application  in  view  of  second proviso to  Rule 4.  Possibly, it  can independently operate only where  the restriction  imposed by the first proviso to Rule 4  is not attracted. The Tribunal was, therefore, wrong in holding  that Rule 17 can operate independently of Rule 4 even in  case of  a candidate  to whom  the first proviso to Rule 4 applies.

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    The  next   point  to  be  considered  is  whether  the requisite conditions  of the second proviso to Rule 4 can be said to  have been  satisfied in this case. The said proviso contemplates a  situation where  the candidate, on the basis of the result of the previous CSE, has been allocated to the IPS or  Central Services,  Group ’A’  but who  expresses his intention to  appear in  the next  CSE for  competing for  a higher or  better service.  Obviously,  to  bring  the  case within the  purview of  the said  proviso allocation  has to precede expression  of his  intention by  the  candidate  to appear in  the next  CSE. It is also implied that allocation on the  basis of  the result  of the  previous CSE has to be before the  declaration of  holding the next CSE. Otherwise, it would  not be  possible for  a candidate  to express  his intention to  appear in  the next  CSE. If he appears in the next  CSE  for  competing  for  IAS,  IFS,  IPS  or  Central Services, Group  ’A’ before  he is  allocated to  the IPS or Central Services, Group ’A’ then he will not fall within the purview of  the  said  proviso  nor  will  he  be  under  an obligation  to   seek  permission   to  abstain   from   the probationary  training  in  order  to  appear  at  the  next examination. If a candidate is not allocated or approved for appointment to  the IPS  or Central Services, Group ’A’ then he would  be free to appear at the next CSE and in that case not only  his result  of the  earlier  examination  but  the preferences expressed by him will become irrelevant. In such a case  neither second  proviso to  Rule  4  nor  the  first proviso to  Rule 17 will apply to him because there would be no justification  to deprive  him of his chance to appear at the next CSE and compete for any service that he likes. If a belated allocation  or approval  for appointment  is  to  be considered valid for attracting the second proviso to Rule 4 and the  first proviso  to Rule 17 then that would seriously affect the  right conferred by the main parts of Rules 4 and 17 on  the candidate. Moreover, as the first proviso to Rule 4 days  down an eligibility criteria it would not be open to the Government  to waive the consequences following from the non-fulfilment of  the conditions  mentioned therein as that would affect the prospects of other candidates. The Tribunal was, therefore,  no  right  when  it  held  that  a  belated allocation  or   approval  does   not  have  the  effect  of prejudicially affecting the right of a candidate.      So far  as  the  appellant  is  concerned  he  was  not recommended by  the UPSC  for any  appointment on  the basis effect. Moreover,  the allocation  of the  appointment to  a Group ’A’  Service on  the basis of the 1990 examination was earlier than his approval for appointment to the CISF on the basis of  the 1989  examination. By  the letter  dated  31st August, 1991 the appellant was informed that on the basis of the 1990  examination he  was considered  for appointment to the IRS  though it  was also stated that the said allocation was tentative  and there was a possibility of its undergoing a  change   on  consideration  of  his  rank  and  expressed preferences. He  was directed to join the third foundational course  for   probationers  at   the   S.V.P.N.P.   Academy, Hyderabad. he  joined that  Academy as a candidate allocated to IRS  and took  training in  the  months  of  october  and November 1991.  Thereafter in December 1991 he was told that as he  was allocated  to CISF  on  the  basis  of  the  1989 examination he  should report  to the  Assistant Director of the National  Industrial Security  Academy at  Hyderabad for basis training commencing from 30.12.91. he was also told by the impugned  decision contained  in the  letter dated  17th December, 1991  that he  was not  eligible for allocation to Group ’A’  Service on  the basis  of the 1990 examination in

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view of  the provisions  contained in  the second proviso to Rule 17.  It is  difficult  to  appreciate  how  the  second proviso to rule 17 made the appellant ineligible. The second proviso to  Rule 17  applies to a candidate who is appointed to a  Central Service, Group ’B’ on the result of an earlier of  the   result  of  the  CSE  1989.  It  was  under  these circumstances that he appeared for the CSE 1990. He not only appeared in the Preliminary Examination but also in the Main Examination. Only  thereafter, that  is, on  14.1.91 he  was informed  that   his  name   was   recommended   through   a supplementary list  for being  considered for appointment to the Central Services, Group ’A’/Group ’B’. The appellant did not respond  to this offer. On the contrary he preferred his fate to  be governed  by the result of the CSE 1990. Luckily for him,  the result  of the  CSE 1990 was better and on the basis of  his rank in the merit list he was allocated to IRS out of  the  Group  ’A’  Services.  The  appellant  was  not approved for  any appointment  on the basis of the result of 1989 examination  till the  first week  of  July  1991.  The Tribunal has taken the view that by remaining silent and not specifically declining  the allocation  made in January 1991 and the  offer of  appointment made in July 1991 he incurred an obligation  to be  governed by  the result  of  the  1989 examination and  forfeited the  right to  be allocated  to a Group ’A’  Service on  the basis  of the  1990  examination, allocation to  the IAS,  IFS and  IPS being  out of question because of  his low  rank. The  Tribunal was  not  right  in taking this  view because  the conditions  precedent to  the application of  the  second  proviso  to  Rule  4  were  not satisfied and,  therefore, the  appellant’s remaining silent did  not   have  such  an  examination  and  desires  to  be considered for  higher service on the basis of result of the next examination.  The appellant  was, at no time, allotted, much less  appointed, to  Central Service,  Group ’B’ on the result  of   the  1989   examination.  The  Government  was, therefore,  wrong   in  treating   him  as   ineligible  for allocation to  IRS on  the basis  of the 1990 examination by resorting to  the second  proviso  to  Rule  17.  Therefore, neither the  first proviso nor the second proviso to Rule 17 was attracted  in this case and the impugned action/decision of the  Government to  treat the appellant as ineligible for appointment to  IRS on the basis of the 1990 examination has to be regarded as bad and without any authority of law.      We therefore,  allow this  appeal, set  aside the order passed  by  the  Tribunal  and  direct  the  respondents  to consider him for final allocation to Central Services, Group ’A’ on  the basis  of the  1990 examination.  In view of the facts and  circumstances of the case, we pass no order as to costs.