Lateral Entry of Joint Secretaries Unconstitutional

justice is blind

Co-Written by Snehil Kunwar Singh & Bhaskar Kumar

Recently, the Government of India has decided to allow lateral entry for the post of joint secretaries of various ministries thus opening the doors to the private sector. The constitutional validity of the notification providing for lateral entry is challenged by an ex-IAS officer through a PIL in the Supreme Court on the grounds that it violates fundamental rights. However, the validity of the same can be challenged on other constitutional grounds besides fundamental rights.

Appointment to the post of civil services and other services relating to the Union is done by Union Public Service Commission (UPSC) under Article 320. Article 309 empowers the President to make rules for regulating such services until an act on the same is passed by Parliament. However, Art. 309 read with clause (3) of Art. 320 makes it necessary for the President to consult UPSC on all matters affecting such services. Given this notification by the government allowing lateral entries seeks to affect such services and bypasses UPSC, it violates Art. 309 read with Art. 320 (3).

Further, clause 9 of Art. 338 and clause 9 of Art. 338A makes it necessary for the government to consult National Commission for Scheduled Caste (NCSC) and National Commission for Scheduled Tribe (NCST) respectively on all major policy matters affecting these community. It was held in Union of India v. Syed that appointment is a matter of policy. Also, if these posts were filled through current existing procedure, at least some of them would certainly have been from SC/ST community but lateral entry adversely affects their chances of the same by bypassing reservation policy. Since the given post is a superior civil post and involves major policy decision affecting these communities, consultation with NCSC and NCST is a must. However, these constitutional bodies have been bypassed and hence lateral entry is violation of Articles 338 (9) and 338A (9).

The arbitrariness of the selection procedure (as there is no such detailed framework delineated by Government of India regarding the same) is against the rule of law and thus violative of Article 14 of the Constitution. The due process of law, both substantive and procedural is part and parcel of Indian Constitutional Law and without adhering to it, any executive or legislative act is ultra vires to the Constitution and liable to be stuck down as laid by the Supreme Court in State of Madhya Pradesh v. Mala Banerjee.

Besides violating fundamental rights, this would also promote favouritism in appointment as the person who will be closer to government will be appointed easily. Also, the entrant from corporate world will not be well conversed with ground realities of India the experience of which only comes through the service of a number of years as an executive of government by spending their professional lives in working at grassroots levels. The private companies are motivated by the prospect of profit making and person coming in government from private sector will work for the profit of private companies. This process also involves conflict of interest because people appointed from corporate sectors are bound to have bias towards their firms which might reflect during policy making. This might also vitiate decisions taken by them which would vitally affect the transparency of the system.

Hence, the notification by the Central government inviting lateral entry to the post of joint secretaries is liable to be struck down by the court on the grounds of non-compliance with necessary constitutional provisions and violation of fundamental right. This would also prevent the system from falling into the trap of favouritism and lack of knowledge at grass-root level.

Snehil Kunwar Singh & Bhaskar Kumar are 2nd Year, B.A. LL.B. (Hons.) students at National Law School of India University, Bangalore



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