Arundhati Das & Others vs Ministry Of External Affairs & Others

,

L. Narasimha Reddy, J",

The Ministry of External Affairs is manned by two categories of officers. The first is Indian Foreign Service (IFS), which akin to other All India",

Services such as IAS and IPS. The second category of officers are from Indian Foreign Service (IFS) Branch ‘B’, and it comprises of several",

categories ranging from clerical to administration. The induction into IFS is at junior time scale. The next higher stage is Senior Time Scale (STS).,

Officers of Group-I of IFS Branch ‘B’, are eligible to be inducted into STS of IFS, subject to fulfillment of certain conditions.",

The Indian Foreign Service (Recruitment, Cadre, Seniority and Promotion) Rules, 1961, (for short “the 1961 Rulesâ€) used to govern the method",

of recruitment, including deputation or promotion to IFS. The induction of Grade-I IFS Branch ‘B’ officers, was also provided for. According to",

Rule 31 of the 1961 Rules, appointment/promotion to the extent of 22.5% of senior scale in a higher post in the IFS, (excluding the one half of the",

posts of Heads of Missions/Posts, but including deputation reserve, if any), were to be filled from among the officers of the Grade-I of IFS Branch",

‘B’, who have completed not less than 3 years of service in that grade. The rules have also provided for the year of allotment, seniority etc.. In",

the context of seniority among the senior scale IFS officers and assigning the year of allotment, Rule 15 (4) of the Rules 1961, provided for weightage",

of 3 years, prior to the date from which an officer was continuously holding the post in Grade-I of IFS Branch ‘B’ or equivalent post. This,",

however, is subject to the condition that the officers so promoted shall not be senior to an officer promoted under Sub-Rule (2) or Sub-Rule (3) of Rule",

13 on an earlier occasion. A mechanism was provided to avoid such eventualities.,

As regards the fixation of seniority between direct recruits and promotees, it was made dependent upon the year of allotment. If the year of",

allotment is same, the date of appointment and if on both counts similarity exists, the direct recruit officer is made senior to the promotee officer. Sub-",

Rule (2) of Rule 13 of 1961 Rules, was amended in the year 2010, providing for increase in the number of posts for promotion from Grade-I of IFS",

Branch ‘B’.,

The rule making authority framed an altogether a new set of rules (for short “the 2020 Rulesâ€) in the place of 1961 Rules and published the,

same, vide notification dated 27.04.2020. Rule 8 of the 2020 Rules corresponds to Rule 13 of the 1961 Rules. There is not much change as regards the",

method of appointment/promotion. Rule 11 of the 2020 Rules corresponds to Rule 15, dealing with the seniority and year of allotment. Under Rule 11",

(4) of the 2020 Rules, the year of allotment of an officer inducted from Grade-I IFS Branch ‘B’ is the one, corresponding to 3 years prior to the",

year in which the officer is appointed against a substantive post in the senior scale of the IFS. In addition to that, weightage of one year, for every",

completed three years of service beyond the minimum three years of continuous service in Grade I of IFS Branch ‘B’, is required to be given.",

Any fraction of the year is required to be ignored. The proviso to this Rule is to the effect that the year so allotted, shall not be earlier than the 8 years",

preceding the year of actual promotion to senior scale of the service.,

Schedules I, II and III are appended to the 2020 Rules. Schedule-I deals with pay matrix and Schedule-II, with the composition of DPCs for",

different posts in the hierarchy. Schedule-III is referable to Rule 9, which in turn, deals with the method of recruitment, minimum qualifying service",

and other eligibility criteria for promotion to various grades of the IFS. Note-1 (2) of Schedule-III is to the effect that the qualifying service for,

promotion from Grade-I of IFS Branch ‘Bâ€​ under Rule 8, shall commence from 1st January of the Year of Allotment assigned under Rule 11 (4).",

The Ministry of External Affairs, issued an office order dated 27.04.2020, framing guidelines for appointment/promotion in the IFS. In the context of",

promotion to Grade-III in the IFS, which is three stages above the senior scale, the eligibility criterion is stipulated as, completion of 17 years of",

qualifying service in the IFS, of which minimum of 2 years of regular service shall be in Grade-IV. The qualifying service is required to commence",

from 1st January of the Year of Allotment. In case of officers promoted from Grade-I of IFS (B), qualifying service shall include continuous service in",

the posts of Grade I of IFS (B) and IFS, following 1st January of the Year of Allotment and it shall not include such period of service rendered in",

posts below Grade-I of IFS (B).,

The applicants are the officers from IFS Branch ‘B’ and were promoted to IFS at different points of time. Applicants 1 and 2 were assigned,

2003, as the year of allotment, whereas the remaining applicants were assigned the year 2008. All of them are working at different places and holding",

the posts of the level of Under Secretary. They filed this OA with a prayer to declare (a) Sub-Note (2) of Note I in Schedule II of the Indian Foreign,

Service (Recruitment, Cadre, Seniority and Promotion) Rules, 2020, (“the IFS Rules 2020â€) as illegal, null and void ab initio; (b) the order dated",

27.04.2020; and (c) Sub-Rule 4 of “Rule 11 of the IFS Rules 2020, as illegal, null and void ab initio.",

The contention of the applicants is that the note appended to Schedule-III would deprive the officers, who come from IFS Branch ‘B’, of the",

service rendered before they were inducted into IFS; in the context of reckoning the qualifying service. According to them, the qualifying service",

under 1961 Rules used to be reckoned 8 years prior to the date on which an officer, held the post in Grade-I of IFS Branch ‘B’, whereas under",

the new rules, it is shifted to the date on which an officer is promoted to the senior scale. Another contention of the applicants is that the exclusion of",

service rendered earlier to promotion to Grade-I of IFS Branch ‘B’, in the context of qualifying service for promotion to Grade-II of IFS, would",

have a serious impact upon their career. Other ancillary contentions are also urged.,

On behalf of the respondents, a short reply, as well as a detailed reply are filed. The respondents contend that it is the prerogative of State, to",

amend the rules in exercise of the powers conferred under proviso to Article 309 of the Constitution of India and the applicants cannot challenge such,

a power. It is stated that the IFS Rules 2020, do not apply retrospectively and would govern the promotions and appointments, which take place, after",

the rules are notified. By way of further clarification, the respondents state that the rules do not apply retrospectively to impact those officers from",

Grade I of IFS Branch ‘B’, who have already been inducted into the IFS and were assigned the year of allotment. It is also stated that the",

applicants are making an attempt to mix up the issue pertaining to seniority on the one hand and that of eligibility, on the other hand.",

The IFS Rules 2020 are said to have been brought into existence as a measure of implementation of the recommendations of the VI CPC, which",

in turn, is to bring about uniformity of eligibility criteria across various organized Group-A services in the context of promotions. The stipulation of 17",

years of service for promotion to Senior Administrative Level Grade-III, in case of IFS officers, in regular service in Group-A post, and not in any post",

below that, is also sought to be traced to the same exercise.",

Each and every contention advanced by the applicants is analyzed by the respondents in their counter affidavit. It is also stated that attempts made,

by the applicants to count their service rendered in the initial cadres such as Section Officer, Assistant, UDC, cannot be accepted at all, and that the",

same would be contrary to the very composition of the service.,

The applicants have filed a rejoinder contradicting the views expressed by the respondents, in their counter affidavits.",

The arguments on behalf of the applicants are advanced by Shri Kailash Vasdev, learned Senior Advocate, assisted by Shri Shreyansh Singhvi,",

Rule 13 of IFS 1961 Rules,Rule 8 of IFS 1961 Rules

Appointment to Senior Scale Posts:-

(1) There shall be no direct recruitment to a cadre

post in the Senior Scale of the Service.

(2)(a) Such number of posts in the Senior Scale of

the Service as do not exceed 22.5% of the Senior

Scale and higher posts in the cadre (excluding one

half of the posts of Heads of Missions/Posts, but

including deputation reserve, if any) shall be filled in

consultation with the Commission by promotion on

the basis of merit from among officers of Grade I

of the Indian Foreign Service, Branch ‘B’

who have completed not less than three years of

service in that grade: (b) Appointments under

Clause (a) shall be made in consultation with the

Union Public Service Commission. The composition

of the Departmental Promotion Committee for such

appointments shall be as follows:- (i) Chairman/

Member, Union Public Service Commission:

Chairman. (ii) Foreign Secretary or a Secretary

nominated by the Ministry of External Affairs :

Member. (iii) Additional Secretary (Administration),

Ministry of External Affairs : Member. (iv) Joint

Secretary (Administration), Ministry of External

Affairs : Member. Note :- The quorum to conduct

the meeting of the Departmental Promotion

Committee shall be three members, including

Chairman. ------------ @ Amended vide Notification

No. 32/GA/73 dated 16.2.73. * Amended vide

Notification No. 08/Cad/82 dated 04.10.82. #

Amended vide Notification No. 15/PA-II/96 dated

25.6.96. -5- Page 5 of 8.

(3) All other Posts in the Senior Scale of the

Service shall be filled by promotion on the basis of

seniority-cum-fitness, from among officers in the

Junior Scale of the Service who have been

confirmed in that scale, subject only to the provision

of Rule 10.

(4) Notwithstanding the provisions of sub-rule (3)

such number of posts in the Senior Scale of the

Service as do not exceed six percent of the Senior

Scale and higher posts which were existing in the

Cadre on the 1st day of January, 1968(excluding

one half of the posts of Head of Missions/Posts, but

including the leave reserve and deputation reserve,

if any) shall be filled in consultation with the

Commission by promotion on the basis of merit

from among such offices of the Indian Information

Service who are not already member of the Indian

Foreign Service, Branch ‘A’ or Branch

‘B’ and have completed not less than six

years of service in any post or posts not lower than

that of an Information Officer: Provided that no

such officer shall ordinarily be considered for

promotion under this sub-rule if on the 1st day of

January of the year in which the meeting of the

Departmental Promotion Committee, which is

competent to consider such Promotion, is held, he

has attained the age of 55 years: Provided further

that no promotion under this sub-rule shall be made

after the 1st day of January, 1972.","8. Appointment to Service.- All initial appointments

to the Service shall be done in the following

manner:-

(1) by direct recruitment to a cadre post in Junior

Scale on the basis of results of an open competitive

examination held by the Commission in accordance

with such regulations as the Central Government

may from time to time make in consultation with the

Commission.

(2) by promotion based on selection to a cadre post

in Senior Scale from amongst officers of Grade I of

the Indian Foreign Service, Branch B who have

completed not less than three years of continuous

service in that grade and fulfill minimum educational

qualifications prescribed for direct recruitment to

the Service as prescribed by the Commission.

Provided that the total number of officers appointed

to the Service by promotion from Grade I of Indian

Foreign Service, Branch B may not, at any time,

exceed 22.5 per cent, of posts in the cadre of

Senior Scale and above but excluding one-half of

the posts of Heads of Missions and Posts.

Eligibility Criteria,"Officers will b eligible on completion of 17 years of qualifying service

in the Indian Foreign Service subject to a minimum of 2 years of

regular service in Grade IV.

Qualifying service for promotion shall commence from 1st January of

the Year of Allotment. In case of officers promoted from Grade I of

IFS (B), qualifying service shall include continuous service in the posts

of Grade I of IFS (B) and Indian Foreign Service following 1st January

of the Year of Allotment and it shall not include such period of service

rendered in posts below Grade I of IFS (B).â€​

It is a matter of common knowledge that in the IAS and IPS, the services rendered by the State Civil Service Officers, which is a feeder category",

for promotion to Senior Scale in IAS or IPS, as the case may be, is taken into account either in entirety, or in part. There is no provision for reckoning",

the service rendered in any post below the feeder category such as Superintendent, Assistant, UDC. In case of IFS Branch-B, the service rendered",

below the post of Grade-I in that service, used to become relevant, in the context of reckoning qualifying service, under the 1961 Rules.",

After undertaking a stupendous exercise, the rule making authority had framed the guidelines for implementation of the recommendations of the",

VI CPC. It cannot be said that there exist any arbitrariness or illegality in the process. The freedom accorded to the rule making authority under the,

proviso to Article 309, cannot be scuttled just on the basis of convenient comparisons.",

It is only when the rule so made is shown to be in contravention of any superior legislation or provision of the Constitution, that the possibility may",

exist for interference. Even if there exist another view on the same subject, the Courts cannot find fault with the one taken by the ruling making",

authority. In fact, it is one of the facets of the sovereign power of the State, to regulate its own affairs.",

Notwithstanding what is observed above, the applicants can feel genuine grievance, if only they are deprived of any promotional avenues or the",

promotion as such, on account of the changed legal frame work; or when an officer who is otherwise junior to them is promoted superseding their",

seniority; subject of course there not being any adverse circumstances against them. No such possibility exists, even remotely. Therefore, we do not",

find any basis to interfere with the office order dated 27.04.2020.,

Taking the first limb of the prayer last, the applicants made a grievance about Note-1 (2) appended to Schedule -III of the Rules 2020. This is",

indeed, another facet of the third prayer. The only difference is that while the 3rd prayer is regarding reckoning of qualifying service for promotion to",

the Grade-III of IFS, the first prayer is about the reckoning of qualifying service for promotion to Senior Scale.",

The Note-1 appended to the Rules 2020 reads as under:,

“(1) For officers appointed to the Indian Foreign Service through direct recruitment on the basis of competitive examination conducted by Union,

Public Service Commission, qualifying service for promotion shall commence from the 1st January of the year following the year of the examination",

on the basis of which an officer is appointed to the Indian Foreign Service.â€​,

Clause 2 of Note-1 is to the effect that for promotion from Grade-I of IFS Branch-B to Senior Scale under Rule 8 (2), the qualifying service shall",

be reckoned from the first January of the year. The only difference is that while the prayer-3, relates to the reckoning of qualifying service for",

promotion to Grade-III, Note-1 of Schedule-III of the Rules 2020, is general, in its purport.",

It is quite possible that both the provisions may operate simultaneously in certain cases. Clause-2 of Note-1 is to the effect that the qualifying,

service in respect of an officer promoted to IFS from Grade-I of IFS Group-B, shall commence from 1st January of the Year of Allotment assigned",

on the basis of sub-rule (4) of Rule 11. For the officers, who are already appointed to IFS on the date of commencement of the Rules 2020, the",

qualifying service shall include the continuous service in Grade-I of IFS Branch ‘B’ and it shall not include the period of service rendered in,

posts below Grade I of IFS Branch-B. The texts of provision contained in the office order dated 27.04.2020 on the one hand and Note-2 (1) (2) of,

Schedule-III are broadly similar. This also is referable to the implementation of the recommendations of the VI CPC.,

In view of the discussion undertaken above, we do not find any basis to interfere with the provisions or proceedings that are assailed in this OA. In",

a way, no cause of action can be said to have accrued to the applicants; as the things stand now. They can certainly knock the doors of the Tribunal in",

the event of denial of promotion to them when it is otherwise becomes due.,

We, therefore, dismiss the OA. However, it is left open to the applicants to approach this Tribunal, in case they suffer any detriment on account of",

the implementation of the IFS Recruitment Rules 2020 or office order dated 27.04.2020, on any future date. There shall be no order as to costs.",