Recruitment And Appointment Of Civil Servants Law Constitutional Administrative Essay

Introduction

It is rightly acknowledged that "a professionally competent and politically neutral bureaucracy is a sine qua non for the smooth and efficient functioning of a democratic polity" [1] . The rigour and integrity of the recruitment process is an important determinant in ensuring that prospective civil servants that make up the bureaucracy are competent and politically neutral. This paper aims to examine and analyse the existing procedure for recruitment and appointment of civil servants in India. The existing procedure will be analysed in the context of the Part XIV of the Constitution of India [2] , which contains provisions "for apolitical and independent services, with requisite protection for service matters" [3] . The way in which the legislature, executive and judiciary have worked to ensure that the recruitment procedure reflects the apolitical and independent nature envisaged in the constitution will be the central motif flowing throughout the paper. The recruitment process, "apart from being transparent, objective, fair and equitable should also ensure that the right type of persons join the civil services" [4] . The paper will begin by briefly examining the history of civil services in India, their vitality to governance of the country and the legislative framework governing the civil services.

History of Civil Services in India

The first committee that paved the way for the existing structure of the Indian Civil Service was the Macaulay Committee, which gave India its first modern civil service in 1854 recommended that "the patronage based system of the East India Company should be replaced by a permanent civil service based on a merit based system through competitive entry examinations" [5] . Focussing on merit, the committee in its report declared that "Henceforth, an appointment to the civil service of the Company will not be a matter of favour but a matter of right. He who obtains such an appointment will owe it solely to his own abilities and industry" [6] . Before 1922, the Indian Civil Service Examination was held in England by the British Civil Service Commission and candidates were sought from Oxford and Cambridge, thus rendering it an elite service [7] . It was only from 1922 that the examination also began to be held in India. Since then various reforms and commissions have put in place the civil services we have today. These developments have given the civil services in India a complex organizational structure.

The Organizational Structure

The executive faction responsible for civil services in India is the Ministry of Personnel, Public Grievances and Pensions. The Ministry of Personnel, Public Grievances and Pensions is the nodal Ministry responsible for personnel matters, "especially in respect of issues concerning recruitment, training, career development, staff welfare, administrative reforms and post retirement dispensation" [8] . The Ministry comprises of three departments, namely:

Department of Personnel and Training (hereinafter, "DoPT")

Department of Administrative Reforms and Public Grievances

Department of Pensions and Pensioners’ Welfare.

Department of Personnel and Training (DoPT) under the charge of Secretary (Personnel) comprises of six wings namely;

Establishment Officer,

Services and Vigilance,

Establishment,

Administrative Tribunal and Administration,

Training and

Central Services.

Each of these wings is headed by an officer of the rank of Joint Secretary or an Additional Secretary. DoPT acts as the "formulator of policies pertaining to recruitment, regulation of service conditions, and deputation of personnel" [9] , besides advising all organisations of the Central Government on issues pertaining to personnel management.

Existing Legal Framework for Civil Services and Recruitment Agencies

Part XIV of the Constitution of India - Article 308 onwards - makes provisions for dealing with the civil services. In terms of Article 309, the appropriate Legislature (Parliament or the State Legislature) is empowered to legislate to regulate the recruitment and conditions of service of persons appointed to the public services and post them in connection with the affairs of the Union or of any State [10] . The proviso to Article 309 states that it shall be competent for the President or the Governor, as the case may be, to make rules relating to the recruitment and conditions of service of persons appointed to the services and posts in connection with the affairs of the Union and the State respectively until provisions in that regard are made by or under an Act of the appropriate Legislature [11] . In terms of the above proviso, a number of Rules have been made from time to time by the Union and State Governments and these essentially govern and regulate the public services in India.

Article 310 of the Constitution provides that all members of the civil services of the Union and the All India Service hold any civil post at the pleasure of the President and all members of the civil services of a State do so at the pleasure of the Governor of the State [12] . Article 311 provides certain safeguards regarding dismissal, removal or reduction in rank of persons employed in civil capacities [13] . Article 312 provides for constitution of the All India Services [14] . Articles 318 to 323 deal with the Union Public Service Commission (hereinafter, "UPSC") and State Public Service Commissions. Article 320 stipulates that it shall be the duty of the Union and the State Public Service Commissions to conduct the examinations for appointment to the services of the Union and the services of the States respectively [15] . It further stipulates that the UPSC or the State PSCs shall be consulted on all matters relating to methods of recruitment to the civil services and on the principles to be followed in making appointments to the civil services and posts and in making promotions and transfers from one service to another. Article 323 lays down that it shall be the duty of the Union Public Service Commission to present annually to the President a report of the work done by the Commission and on receipt of such report the President shall cause a copy thereof together with the Memorandum explaining, as respects the cases, if any, where the advice of the Commission was not accepted, the reasons for such non-acceptance to be laid before each house of Parliament [16] . Similar provision also exists for the State Public Service Commissions. Article 323(a) authorizes the Parliament to set up administrative tribunals regarding disputes with respect to recruitment and conditions of service of persons appointed to public services [17] .

Hence, it is clear that the relationship between a civil servant and Government is defined by Statutes/Rules. Different aspects governing the conditions of service of civil servants are provided by different rules promulgated under Article 309 of the Constitution.

The Scheme

In the above context; considering the manner of evolution of civil services in India, their organizational structure and the existing legal framework regarding the civil services and recruitment agencies this paper will examine and analyze the procedure for recruitment and appointment of government servants in India. The way in which the legislature, executive and judiciary have worked to ensure that the recruitment procedure reflects the apolitical and independent nature envisaged in the constitution will be the central motif existing throughout the paper. The first part of the paper will focus on the recruitment procedure. The chapter will deal with the various recruitment agencies, their functions and their vitality to the recruitment process. The various methods of recruitment and judicial opinions regarding their apt use will be highlighted too. The second part of the paper will focus in the appointment procedure. The chapter will begin by differentiating recruitment from appointment. The appointment procedure and its inherent connection with the recruitment procedure will be examined. The major part of the chapter will deal with judicial pronouncements that have imposed safeguards as regards the government’s seemingly plenary power to appoint individuals to concerned posts. The paper will conclude by summarizing its findings and presenting recommendations whereby the recruitment and appointment procedure may be further strengthened.

Recruitment Procedure

This part of the paper will focus on the manner in which the recruitment for civil services is conducted by the Union and State Governments. Due regard shall be given to the constitutional provisions and service rules framed under them. This chapter will begin by differentiating and delineating the contours of the term "recruitment" and "appointment" as interpreted in India’s service law jurisprudence. It will then delineate the role in recruitment of various recruitment agencies namely, the UPSC, the State Public Service Commissions and the Staff Selection Commission (hereinafter, "SSC"). The various forms of recruitment and their use and purpose will then be examined. Lastly, various judicial pronouncements that will demonstrate the finer details regarding the manner of recruitment will be dealt with.

Recruitment and Appointment

The terms recruitment and appointment are not considered synonymous in India’s service law jurisprudence; they are considered to be two different stages. In Prafulla Kumar Swain v Prakash Chandra Misra & Ors [18] a three judge bench of the Supreme Court went on to decide "the meaning and effect of the two terms" [19] and held that "recruitment in just an initial process. It connotes and clearly signifies enlistments, acceptance, selection or approval for appointment" [20] . The court differentiated it from appointment by stating that "certainly, this is not actual appointment or posting in service. In contradistinction the word appointment means an actual act of posting a person to a particular office" [21] . This decision conclusively settled the difference between the two terms and has since been followed by the Supreme Court in various decisions such as R.S. Ajara & Ors v State of Gujarat & Ors [22] , State of Himachal Pradesh v J.L. Sharma & Anr [23] and H.S. Vankani & Ors v State of Gujarat & Ors [24] .

Recruitment Agencies

The recruitment process in India is largely undertaken with the assistance of three recruitment agencies namely, the UPSC, the State Public Service Commissions and the Staff Selection Commission. While UPSC and State PSCs are constitutionally recognized by virtue of Article 315 [25] , Staff Selection Commission has been set up by a Resolution of the Government and it has the status of an attached office of the Department of Personnel and Training. Each of these agencies serves a particular purpose different from the others.

The Union Public Service Commission comprises the Chairman and ten Members. The UPSC makes recruitment for "All India Services; Group ‘A’ Central Civil Services/posts, and Group ‘B’ Gazetted posts in Ministries/ Departments of the Central Government" [26] . The Commission also conducts the examination for recruitment of Commissioned Officers in the Defence Forces. Some Union Territories (UTs) also avail the services of the Union Public Service Commission for recruitment to the posts under the UT.

The set up of Staff Selection Commission (SSC) comprises its Headquarters located in New Delhi and 09 Regional/Sub Regional offices located at different parts of the country. The SSC (Hqrs) comprises the Chairperson, two Members, one Secretary-cum-Controller of Examinations and other supporting officers and staff. "The Regional/Sub-Regional offices are responsible for receipt and processing of applications for various examinations, issue of admit cards to the candidates and conduct of examinations, interviews and physical endurance tests (wherever required) either at the Regional Headquarters or other major cities in the regions" [27] .

The State PSCs perform the functions performed by the UPSC at the State level where senior civil officers for the concerned state are to be appointed. Hence, SSC, as is apparent from the functions performed by it is concerned with the performance of certain functions ancillary to the process of recruitment while the primary functions rest with the UPSC and State PSCs. All these recruitment agencies perform a facilitative and consultative role by assisting the executive with the recruitment process.

Various Forms of Recruitment

The Government has as its disposal generally 6 modes of recruitment. These are:

"Direct Recruitment

Promotion

Deputation

Absorption

Re-employment

Short-term Contract" [28] 

Direct Recruitment

Direct recruitment is the recruitment which is "open to all candidates, eligible as per the provisions regarding age, educational qualification/ experience etc. as prescribed in the concerned Recruitment Rules" [29] . Direct recruitment is conducted broadly under two methods:

Recruitment by competitive examination

Under the Constitution one of the functions of the UPSC and State PSC under Article 320 is "to conduct examinations for appointment to Civil Services/Posts of the Union and the states, respectively" [30] . In addition, competitive examinations are also held by the UPSC under arrangements with the Ministry of Defence for entry to certain Defence Services, through the National Defence Academy, Indian Military Academy, Naval Academy, Air Force Academy and the Officers Training Academy. The UPSC usually conducts over a dozen examinations every year on an all India basis. These include Examinations for recruitment to services/posts in various fields, such as Civil Services, Engineering, Medical and Forest Service, etc.

Recruitment by selection

Recruitment by Selection is made by the following methods [31] :

By Interview Only

Where the number of applicants is very large, it is not practicable to call for Interview all the applicants who fulfil the minimum eligibility conditions prescribed. The Commissions, therefore, shortlist the candidates to be called for the interview on the basis of certain pre-determined criteria related to the job. A large number of recruitment cases are handled by the Commissions by this method

By Written Test Followed By Interview

In this category, there are two types of procedure followed:

An objective-type written and/or practical test to test the skill of the candidates followed by Interview, the final selection being decided by Interview, aided by the performance of the candidates in the written test and/or practical test.

An objective-type written and/or practical test to screen candidates to be called for interview, the final selection being decided by Interview only.

Promotion

"Promotion is method of recruitment from feeder grade post(s) to higher post in the hierarchy as per the provisions of the Recruitment Rules" [32] . If promotion is kept as a method of recruitment, it is also necessary to lay down the number of years of qualifying service before the persons in the field become eligible for promotion. Only regular, and not ad hoc, period of service is taken into account for purposes of computing this service.

Deputation

"Deputation is a method of recruitment where officers of Central Government Departments or State/ UT Governments from outside are appointed to post(s) in Central Government for a limited period, by the end of which they will have to return to their parent cadres" [33] . In case of isolated post it is desirable to keep the method of recruitment of deputation/ short term contract as otherwise the incumbents of such posts, if directly recruited, will not have any avenue of promotion/ career progression.

Short Term Contract

"Short term contract is also a form of deputation where officers from non-Government bodies e.g. universities, research institutions, public sector undertakings for teaching, research, scientific and technical posts can come to Central Government posts" [34] .

Absorption

The mode of absorption is applicable only to officers who are on deputation. "If the recruitment rules for the concerned posts provide for absorption as a mode of recruitment, then such officers can be permanently absorbed in the post/grade" [35] . Absorption can only be affected in the case of officers who are on deputation from Central/State Government.

Choosing the appropriate form of recruitment

In order to decide the appropriate form of recruitment for a post(s), the government is supposed to give due consideration to the following considerations [36] :

The nature of duties, qualifications and experience required.

The availability of suitable personnel possessing, the requisite qualifications and experience within a cadre.

The need for ensuring that suitable incentives exist for the maintenance of an adequate standard of efficiency in the cadre.

Judicial Pronouncements

In various cases, the Supreme Court has had to decide the question whether the government or appropriate authority was correct in choosing a particular mode of recruitment as opposed to another one that might have been more apt [37] . The Supreme Court has brushed aside all such challenges and held that "in the absence of any constitutional bar (eg., Article 233) determination of the mode of recruitment to a service or post is a matter of policy of government" [38] .

In Jaiswal v Debi [39] , the Supreme Court ruled that if before the selection is held the Government withdraws its requisition from the PSC, neither the candidate nor the PSC itself can insist on continuing the process of recruitment by selection. In a similar vein, the Supreme Court in Asha v State of J&K [40] held that if the government wants to disapprove or reject the list submitted by the PSC, it ought to do so within a reasonable time of the receipt of the list and for reasons to be recorded and the Government cannot accept a part of the list and reject the rest.

The sense of non-interference run through most of these orders, the Supreme Court has stood by such non-interference in case of qualifications set by the government too. In Mahendran v State of Karnataka [41] , it held that the "propriety of particular qualification for a post laid down by the government cannot be interfered with by the Court" [42] .

As regards the sanctity of the examination conducted by the PSC the Supreme Court in Dalpat v Mahajan [43] held that "the Court would not interfere with the comparative merits of candidates as assessed by the examining body, in the absence of bias or mala fides or material irregularity in the constitution of the examining body or the procedure adopted by it- because these are matters requiring an expertise which the courts do not possess" [44] .

In Sardara Singh v State of Punjab [45] the Supreme Court observed that where rules relating to the recruitment do not require both written and viva voce tests, selection by interview alone cannot be held to be illegal. Further, it observed that there is no inflexible standard as to the duration of an interview and hence, its length cannot be ground to challenge recruitment proceedings.

Appointment Procedure

Recruitment is not synonymous with appointment. It signifies enlistment, acceptance, selection or approval for appointment and not actual appointment or posting in service. In case of Basan lal Malhotra v. State of Punjab [46] , the High Court of Punjab and Haryana held that appointment means as actual act of posting a person to a particular office. [47] 

When the recruitment of persons is done with the help of the Union Public Service Commission, the of the advice of the Commission is not binding upon the government for final appointment but a convention has been established by the Government of India, that in the following classes of the cases referred to the Commission, the recommendations made by them shall be accepted, save in exceptional circumstances. [48] 

Quasi-judicial cases.

Selection for appointments of candidates.

Appointment of a candidate on a higher initial pay than that of a minimum pay of the posts.

Claims of expenditure incurred by the Government servants in defending legal proceedings instituted against him in respect of acts done or purporting to be done in the execution of his duty.

The candidates selected for appointment by the Commission are also informed about their selection to the post with the advice to contact the concerned Ministry/Department for further correspondence. [49] The selected candidates are also informed that the offer of appointment will be made to them only after the Government have satisfied themselves after such enquiry as may be considered necessary that the candidates are suitable in all respect for appointment to the service. [50] Further they are also informed that the appointment will be subject to such other conditions as are applicable to all such appointments under the Central Government. [51] 

Under Article 309 of the Constitution, acts of the appropriate legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any state. This article is subject to other provisions of the constitution, and thus the Supreme Court in case of Secretary, State of Karnataka v. Umadevi [52] has also held that the rules made under this Article are subjected to the other provisions of the Constitution. [53] 

Thus the rules made under this Article must not violate Article 14, 16, 19, 310, 313 or the condition of equal pay for equal work laid down in Article 39(d). [54] 

In Indravadan H. Shah v. State of Gujrat [55] the Supreme Court of India held that Article 14 and 16 of the Constitution ensure that there should not be any discrimination in the manner of appointment in the service, nor there will be any arbitrariness or unreasonableness in the rules of recruitment providing for appointment to the service either by promotion or by direct recruitment. [56] 

In the above case there was introduction of age restriction as regards the promotion by appointment to the post of Assistant Judge from amongst the members of the Gujrat Judicial Services (Junior Branch) as provided in Rules 6 (4) (i) and 6 (4) (iii) (a) of the Gujrat Judicial Services Recruitment Rules, 1961. [57] The Supreme Court observed that there is no nexus to the object sought to be achieved by the introducing the age restrictions. The court held that "there is obviously no rationale nor any reasonableness for introduction of this age bar in regard to appointment by promotion of the post of an Assistant Judge. The rule is, therefore, arbitrary and it violates the statutory principles of equality and want of arbitrariness in the matter of public employment as guaranteed by Article 14 and 16 of the Constitution." [58] 

Thus the power of the state an employer is more limited than that of a private employer inasmuch as it is subjected to constitutional limitations and cannot be exercised arbitrarily as observed by the Supreme Court in Secretary, State of Karnataka v. Umadevi [59] , and the state is expected to act as a model employer exhibiting "fairness in action". [60] 

Hence the right of the state to make appointments to its service is not arbitrary. [61] But Appointments on compassionate grounds are exception to the equality clause under Article 14, [62] and must be must be made expeditiously.

Further if appointments are in violation of the rules or the provisions of the constitution, the illegality cannot be regularised. The ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance within the procedure or manner which does not go to the root of the appointment. [63] 

Thus if an employee has been appointed illegally, he cannot be regularised by an act of legislature unless proper Validation act is passed which changes the very basis of the provisions relating to an appointment retrospectively. [64] 

In Satchidananda Misra v. State of Orissa [65] , appointments had been made to the Orissa Medical Health Services under the 1973 rules even though they had been replaced in 1979. This was sought to be regularised by a Validating act without changing the basis of the initial appointments itself.

Further Cahndraprakash Madhavrao Dadwa v. Union of India, [66] recruitment qualifications cannot be changed retrospectively so as to deprive persons of their right to the posts to which they were recruited or affect their confirmation. [67] 

Appointments made after the enforcement of the amended rules will be governed by the amendments made therein except where there is inordinate delay in making the appointment. [68] There is a change in policy of reservation by amendment to the rules and embargo placed on appointment. The government is not obliged to fill up the existing vacancies and successful candidates do not require an indefeasible right to be appointed. [69]