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

Recently, there has been a lot of hue and cry with respect to the desire voiced by the Prime Minister’s Office to consider the following suggestion and its implementation from the current year itself: -

To examine if service allocation/cadre allocation to the probationers selected on the basis of the Civil Services Examination be made after Foundation Course. Examine the feasibility of giving due weightage to the performance in the Foundation Course and making service allocation as well as cadre allocation to All India Service Officers, based on the combined score obtained in the Civil Services Examination and the Foundation Course. 

The gist of this suggestion seems to be that once the Probationers are selected on the basis of the Civil Services Examination (in short, “CSE”), the performance in the Foundation Course will also carry due weightage for the purpose of service allocation and cadre allocation. Thus, according to this suggestion, 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.

A lot of eminent political scientists, lawyers, members of civil society, academicians, journalists, politicians etc. have been voicing their concerns over this seemingly innocuous suggestion and it is being vehemently contended that the same is unconstitutional, an encroachment on the powers of UPSC and has ulterior motives.

For the sake of brevity, I shall not be reproducing each and every contention raised by the public in general. The objective of the present post is to merely analyse the consistency and applicability of the aforementioned suggestion on the anvil of the Constitution of India.

Let us start with the Proviso to Article 309 of the Constitution of India which is stated as under: -

“Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the  State, to make  rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.”

This Proviso gives power to the Executive to regulate the recruitment and the conditions of service of persons appointed by it until provision in that behalf is enacted by the appropriate legislature. In case of Union of India, the relevant Act for our purposes is the All India Services Act, 1951. The act itself is an enabling legislation and gives power to the Government to frame all the rules relating to recruitment and the conditions of service of persons appointed to an All India Service. Thus, even though the Rules made under the Act of 1951 have an overriding effect over the power of the Executive, yet it is the Executive only that effectively regulates the recruitment and the conditions of service.

Let us, now, come to Article 310 and Article 311. Article 310 provides that every person holding any post under the Union holds office during the pleasure of the President and Article 311 mandates that every such person shall be afforded an opportunity before his/her dismissal/removal.

Next, Article 320 of the Constitution of India that provides for the duties of the Union Public Service Commission. Article 320 (1) of the Constitution of India states as under: -

“It shall be the duty of the Union and the State Public Service Commissions to conduct examinations for appointments to the services of the Union and the services of the State respectively.”

Further, Article 320 (3) (a) and (b) of the Constitution of India provides as under: -

“(3) The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted—

(a) on all matters relating to methods of recruitment to civil services and for civil posts;

(b) on the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another and on the suitability of candidates for such appointments, promotions or transfers;……”

A bare perusal of the above reproduced provisions of law make it clear that the Commission has the constitutional duty to conduct examinations for appointments to the services of the Union and conversely Article 320 (3) casts obligations upon the Union or the Government of India to consult the Commission on all matters related to method of recruitment and on the principles to be followed in making appointments, to civil services and posts.

There are many other provisions relating to the Union Public Service Commission; however, the same are not required for the purpose of our discussion.

Following clear points emerge from the discussions made hereinabove: -

1. By virtue of Article 309 of the Constitution of India and the All India Services Act, 1951, the Executive has the power to regulates the recruitment and the conditions of service in relation to All India Services.

2. Every person holding any post under the Union holds office during the pleasure of the President.

3. The Commission has the constitutional duty to conduct examinations for appointments to the services of the Union.

4. It is the constitutional duty of the Government of India to consult the Commission on all matters related to method of recruitment and on the principles to be followed in making appointments, to civil services and posts.

In light of the abovementioned discussion and provisions of law, it remains to be examined 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. The next post shall contain my detailed analysis on this subject and can be read here.