Civil Services Exam, Service Allocation, Cadre Allocation, UPSC and the Government – An Analysis of the present Controversy - Part II

In the last post, we dealt with the various constitutional provisions that govern the mandate of UPSC and its relationship with the Union. The present post seeks to examine that whether the suggestion that the combined score obtained in the CSE and the Foundation Course will form the basis for service allocation and cadre allocation to All India Service Officers is constitutionally sound or not.

At the outset, it is my humble view that a suggestion may or may not be constitutionally sound and it is within the rights of the Union to consider such suggestion as it deems fit. In fact, the PMO has merely desired to consider such suggestion. I really do not understand all the hype, propaganda and rumours that are being spread in relation to this suggestion. Many people in the Media and the academic community are under an impression and assumption that the present Government is trying to usurp the powers of the UPSC by putting an arbitrary condition of consideration of the score obtained in the Foundation Course in relation to service allocation and cadre allocation. I fail to find any basis for such fear or apprehension.

Before venturing into the merits of the matter, it is my considered view that it is within the rights of any Government or Prime Minister’s Office to desire to consider a suggestion that deals with the delicate balance of power between the Union and the Commission. Surely, there cannot be any constitutional embargo on the desires of the Prime Minister in relation to functioning of the Union and its Services. Keeping this into mind, let us venture further.

Assuming but not conceding that the Government indeed implements this suggestion, it will be important to look into the exact mechanism that it adopts in relation to service allocation and cadre allocation. Without actually seeing the document implementing this suggestion, it is hard for me to create facts out of thin air and put all the blame on some ulterior or hidden agenda of some Organization or Government.

From the discussion made in the preceding post, it is clear that if at all the Government decides to implement this suggestion, it will require to do the following: -

1. Before implementing the suggestion, the Government must consult with the Commission regarding the methods and the principles that it would follow in relation to service allocation and cadre allocation.

2. In case no consensus is arrived at between the Union and the Commission with respect to the above, then the Government is open to take recourse to the Proviso to Article 320 (3) of the Constitution of India which states as under: -

“Provided that the President as respects the all-India services and also as respects other services and posts in connection with the affairs of the Union, and the Governor 2***, as respects other services and posts in connection with the affairs of a State, may make regulations specifying the matters in which either generally, or in any particular class of case or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted.”

By virtue of the abovementioned provision, the President has the power to make regulations specifying the matters in which it shall not be necessary for the Commission to be consulted. Such power is obviously restricted by Article 320 (5) of the Constitution of India which provides that any such regulation made shall have to ratified by the Parliament and the Parliament has the power to modify the same.

In conclusion, I would like to say that the controversy raised with respect to UPSC and the Government in relation to service allocation and cadre allocation is a non-issue at this stage. As and when the Government implements this suggestion, it would remain to be seen the manner in which the same is implemented. Some people say that even if the Government is correct legally, morally it is wrong if it implements the suggestion. My answer to such a rhetoric is that the morality of the Government is governed by the provisions of the Constitution of India and if the Government passes the litmus test of constitutionality, then the question of morality won’t arise at all. Any question on the propriety or the intent of the Government is to be answered by presenting evidence and cannot be answered solely on the basis of surmises and conjectures in the name of past record of some Organization, Political Party or the Country.