Union Of India Secretary To … vs A. Shainamol Ias on 22 October, 2021


Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.

Supreme Court of India

Union Of India Secretary To … vs A. Shainamol Ias on 22 October, 2021

Author: Hemant Gupta

Bench: Hemant Gupta, V. Ramasubramanian

                                                                                      REPORTABLE

                                                  IN THE SUPREME COURT OF INDIA

                                                    CIVIL APPELLATE JURISDICTION


                                              CIVIL APPEAL NOS. 11480-81 OF 2018




                         Union of India and Anr.                                     .....APPELLANT(S)

                                                                  VERSUS

                         Ms. A. Shainamol, IAS and Anr.                            .....RESPONDENT(S)




                                                           JUDGMENT

HEMANT GUPTA, J.

1. The present appeals, at the instance of Union of India 1, are

directed against an order passed by the High Court of Kerala at

Ernakulam on 28.02.2017 whereby the appellant was directed to

allocate the respondent2 herein to the Kerala cadre of the All-India

Service.

2. The applicant is a candidate seeking appointment to the All-India

Services in pursuance of the Civil Services Examination-2006 3. The

Signature Not Verified applicant was successful as she found her name at Serial No. 20 of
Digitally signed by R
Natarajan
Date: 2021.10.22
16:30:41 IST
Reason:

                         1    For short, the ‘Union’
                         2    For short, the ‘Applicant’
                         3    For short, the ‘CSE-2006’

                                                                                                    1

the candidates selected by the Union Public Service Commission 4.

She belongs to Muslim community and also to the Other Backward

Class5. She was allotted Himachal Pradesh cadre after the Union

sought the consent of Himachal Pradesh government on

13.11.2007, which was duly received on 17.12.2007.

3. It is thereafter that the applicant filed an Original Application under

Section 19 of the Administrative Tribunals Act, 1985 before the

Ernakulam Bench of the Central Administrative Tribunal 6. The

Tribunal directed the Union to allot and accommodate the

applicant against the outsider OBC vacancy in the Maharashtra

cadre by virtue of her merit over the candidate already identified

and allotted the Maharashtra cadre. The Union and the applicant

aggrieved against the said order filed writ petitions before the

High Court of Kerela at Ernakulam. The writ petition of the Union

challenging the direction of the Tribunal to accommodate the

applicant in the Maharashtra cadre was allowed. Also, even the

original application filed by the applicant for declaring and

directing that the applicant is eligible to be allotted the Kerala

cadre was allowed.

4. The facts are not in dispute. The applicant, though an OBC

candidate, came on general merit without resorting to the relaxed
4 For short, the ‘Commission’
5For short, the ‘OBC’
6For short, the ‘Tribunal’

2
standard for the candidates belonging to OBC. The applicant was

one of the candidates belonging to Kerala and that the four other

general category candidates were higher in merit than her. The

placement of the applicant is as under:

     Sl No.   Rank   Name    of the   Category   Home     Cadre       Allotted as
                     Candidate                   State    Allotted
     1        4      PRASANTH N       General    Kerala   Kerala      Insider



     2        6      VYASAN R         General    Kerala   Nagaland    Outsider
     3        13     NILA MOHANAN     General    Kerala   Assam       Outsider
                                                          Meghalaya
     4        17     REMYA  MOHAN     General    Kerala   Gujarat     Outsider
                     MOOTHADATH
     5        20     SHAINAMOL A      OBC.       Kerala   Himachal    Outsider
                                                          Pradesh



5. In the year in question, as per the policy, there was one post

meant for Insider Unreserved candidate against which Prasanth N

(Merit No. 4) from Kerala was allocated Kerala cadre. The second

vacancy for OBC Outsider was allotted to Patil Ajit Bhagwatrao

(Merit No. 131). The grievance of the applicant was that she had a

better merit than Shri Sachindra Pratap Singh (Merit No. 26) who

was allocated the Maharashtra cadre as an OBC candidate. The

argument of the applicant was that she was higher in merit as an

OBC candidate, therefore, she should have been allocated the

Maharashtra cadre. Such argument was accepted by the Tribunal.

6. The High Court, in the writ petitions against the order of the

Tribunal, inter alia held that the Kerala government had submitted

3
requisition for a minimum of 7 candidates. Even as per the Union,

the cadre was of 124 direct recruits and the available officers were

119, therefore, there was a cadre deficiency of 5 officers. It was

held that 5 admitted deficit vacancies were required to be filled up

by following the outsider-insider ratio in the given cycle of 30-point

roster, then there would be an insider vacancy, to be given either

to the Scheduled Castes or Scheduled Tribes 7 or the OBC. Since

there was no SC/ST candidate, it had to be filled up by insider OBC,

i.e., the applicant. It was also found that Rule 5(1) of the Indian

Administrative Service (Cadre) Rules, 19548 contemplates

consultation with the State Government in respect of matter of

allocation of cadre. Since there was no consultation with the

government of Kerala, the Union is in breach of the mandate of

Rule 5(1).

7. We find that the High Court has completely misread the statutory

rules and the policy of allocation of cadre which would be

discussed hereinafter.

8. The relevant rules, regulations and the policy instructions are

required to be extracted before we proceed to discuss the

respective contentions of the parties.

7For short, the ‘SC/ST’
8 For short, the ‘Cadre Rules’

4
“The Indian Administrative Service (Cadre) Rules,
1954

In exercise of the powers conferred by sub-section 1 of
Section 3 of the All India Services Act, 1951 (LXI of 1951),
the Central Government, after consultation with the
Governments of the States concerned, hereby makes the
following rules namely:

xxx xxx xxx

2. Definitions: In these rules, unless the context otherwise
requires-

(a) ‘Cadre officer’ means a member of the Indian
Administrative Service;

(b) ‘Cadre post’ means any of the post specified under
item 1 of each cadre in schedule to the Indian
Administrative Service (Fixation of Cadre Strength)
Regulations, 1955.

xxx xxx xxx

5. Allocation of members to various cadres – (1) The
allocation of cadre officers to the various cadres shall be
made by the Central Government in consultation with the
State Government or the State Government concerned.”

9. The relevant Indian Administrative Service (Recruitment) Rules,

19549 and The Indian Administration Service (Appointment by

Competitive Examination) Regulations, 195510 read as under:

“The Indian Administrative Service (Recruitment)
Rules, 1954.

In exercise of the powers conferred by sub-section (1) of
section 3 of the All-India Services Act, 1951 (LXI of 1951),
the Central Government after consultation with the

9For short, the ‘Recruitment Rules’
10For short, the ‘Competitive Examination Regulations’

5
Government of the States concerned, hereby makes the
following rules, namely:-

xxx xxx xxx

7. Recruitment by competitive examination.
7(1) A competitive examination for recruitment to the
Service shall be held at such intervals as the Central
Government may, in consultation with the Commission,
from time to time, determine.

7(2) The examination shall be conducted by the
Commission in accordance with such regulations as the
Central Government may from time to time make in
consultation with the Commission and State Government.

7(3) Appointment to the Service shall be subject to orders
regarding special representation in the Service for
Scheduled Castes Scheduled Tribes [and Other Backward
Castes] issued by the Central Government from time to
time in consultation with the State Governments.

Provided that the candidates belonging to the Scheduled
Castes or Scheduled Tribes [or the other Backward Classes]
and declared by the Commission to be suitable for
appointment to the Service shall be appointed against
unreserved vacancies in case they qualify for appointment
to the Service based on their merit without recourse to the
benefit of reservation. (Emphasis Supplied)

7(4) Candidates belonging to the Scheduled Castes or the
Scheduled Tribes or Other Backward Classes declared by
the Commission to be suitable for appointment to the
Service with due regard to the maintenance of efficiency of
administration may be appointed to the vacancies reserved
for the candidates of the Scheduled Castes or the
Scheduled Tribes or Other Backward Classes, as the case
may be, under sub-rule (3).

Explanatory Note:- The Provisions for reservation in respect
of the Other Backward Classes for recruitment to the
Service was commenced from the year 1994 onwards and
hence it is proposed to give retrospective effect to the
provisions of sub-rule (3) of Rule 7 from the 1 st day of

6
January 1994. It is certified that by giving retrospective
effect to the provisions of the sub-rule (3) of Rule 7, nobody
is being adversely effected.”

“The Indian Administrative Service (Appointment by
Competitive Examination) Regulations, 1955

In pursuance of Rule 7 of the Indian Administrative Service
(Recruitment) Rules, 1954, the Central Government, in
consultation with the State Governments and the Union
Public Service Commission, hereby makes the following
regulations, namely:-

xxx xxx xxx

7. List of successful candidates:

(1) Subject to the provision of sub-regulation (2) the
commission shall forward to the Central Government
a list arranged in order of merit of the candidates
who have qualified by such standards as the
Commission may determine.

(2) The candidates, belonging to any of the Scheduled
Castes or the Scheduled Tribes may, to the extent of
the number of vacancies reserved for the Scheduled
Castes and the Scheduled Tribes, be recommended
by the Commission by a relaxed standard, subject to
the fitness of these candidates for selection to the
Service.

Provided that the candidates, belonging to the
Scheduled Castes and the Scheduled Tribes, who
have been recommended by the Commission without
resorting to the relaxed standard referred to in this
sub-regulation, shall not be adjusted against the
vacancies reserved for the Scheduled Castes and the
Scheduled Tribes.”

10. The notification for conducting CSE-2006 was published in the

Government of India Gazette on 03.12.2005. The relevant clauses

7
pertaining to allocation of cadre as provided by the notification

read thus:

“NOTIFICATON
New Delhi, the 3rd December, 2005
RULES

No. 13018/6/2005-AIS(I).- The rules for a competitive
examination-Civil Services Examination to be held by the
Union Public Service Cofmmission in 2006 for the purpose of
filling vacancies in the following services/posts are, with the
concurrence of the Ministries concerned and the
Comptroller and Auditor General of India in respect of the
Indian Audit and Accounts Service, published for general
information.”

xxx xxx xxx

16 (1) After interview, the candidates will be arranged by
the Commission in the order of merit as disclosed by the
aggregate marks finally awarded to each candidate in the
Main Examination. Thereafter, the Commission shall, for the
purpose of recommending candidates against unreserved
vacancies, fix a qualifying mark (hereinafter referred to as
general qualifying standard) with reference to the number
of unreserved vacancies to be filled up on the basis of the
Main Examination. For the purpose of recommending
reserved category candidates belonging to the Scheduled
Castes, Scheduled Tribes and Other Backward Classes
against reserved vacancies, the Commission may relax the
general qualifying standard with reference to number of
reserved vacancies to be filled up in each of these
categories on the basis of the Main Examination:

Provided that the candidates belonging to the
Scheduled Castes, Scheduled Tribes and the Other
Backward Classes who have not availed themselves of any
of the concessions or relaxations in the eligibility or the
selection criteria, at any stage of the examination and who
after taking into account the general qualifying standards
are found fit for recommendation by the Commission shall
not be recommended against the vacancies reserved for
Scheduled Castes, Scheduled Tribes and the Other

8
Backward Classes. (Emphasis Supplied)

(2) While making service allocation, the candidates
belonging to the Scheduled Castes, the Scheduled Tribes or
Other Backward Classes recommended against unreserved
vacancies may be adjusted against reserved vacancies by
the Govt. If by this process they get a service of higher
choice in the order of their preference . (Emphasis Supplied)

(3) The Commission may further lower the qualifying
standards to take care of any shortfall of candidates for
appointment against unreserved vacancies and any surplus
of candidates against reserved vacancies arising out of the
provisions of this rule, the Commission may make the
recommendations in the manner prescribed in sub-rules (4)
and (5).

(4) While recommending the candidates, the Commission
shall, in the first instance, take into account the total
number of vacancies in all categories. This total number of
recommended candidates shall be reduced by the number
of candidates belonging to the Scheduled Castes, the
Scheduled Tribes and Other Backward Classes who acquire
the merit at or above the fixed general qualifying standard
without availing themselves of any concession or relaxation
in the eligibility or selection criteria in terms of the proviso
to sub-rule (1). Along with this list of recommended
candidates, the Commission shall also declare a
consolidated reserve list of candidates which will include
candidates from general and reserved categories ranking in
order of merit below the last recommended candidate under
each category. The number of candidates in each of these
categories will be equal to the number of reserved category
candidates who were included in the first list without
availing of any relaxation or concession in eligibility or
selection criteria as per proviso to sub-rule (1). Amongst the
reserved categories, the number of candidates from each of
the Scheduled Caste, the Scheduled Tribe and Other
Backward Class categories in the reserve list will be equal
to the respective number of vacancies reduced initially in
each category.

(5) The candidates recommended in terms of the
provisions of sub-rule (4), shall be allocated by the

9
Government to the Services and where certain vacancies
still remain to be filled up, the Government may forward a
requisition to the Commission requiring it to recommend, in
order of merit, from the reserve list, the same number of
candidates as requisitioned for the purpose of filling up the
unfilled vacancies in each category.”

11. The Union had prescribed a procedure to be followed in the

allotment of cadre to the officers of All India Services on

30.07.1984. All the cadres/joint cadres were divided into four

groups and the 24 States were arranged in alphabetical order.

Later, another procedure was circulated on 30/31.05.1985 11. It is

the said allocation circular which was in force at the time of cadre

allocation for the year 2007. Maharashtra, Manipur-Tripura,

Nagaland, Orissa, Punjab, Rajasthan and Sikkim fell in Group III

whereas Haryana, Himachal Pradesh, Jammu & Kashmir,

Karnataka, Kerala and Madhya Pradesh fell in Group II. The

principles of allocation on the basis of roster system were as

follows:

“Government of India
Ministry of Personnel & Training
Administrative Reforms and Public Grievances and Pensions

Secretary
D.O. No. 13012/5/84-AIS(I) Dated 30/31 May 1985

XXX XXX

(1) The vacancies in every cadre will be earmarked for
‘outsiders’ and ‘insiders’ in the ratio of 2:1. In order to avoid
problems relating to fractions and to ensure that this ratio is

11 For short, the ‘allocation circular’

10
maintained, over a period of time, if not during allocation,
the break-up of vacancies in a cadre between ‘outsiders’
and ‘insiders’ will be calculated following the cycle of
‘outsider’, ‘insider’, ‘outsider’.

(2) The vacancies for Scheduled Castes and Scheduled
Tribes will be reserved in the various cadres according to
the prescribed percentage. For purpose of this reservation,
Scheduled Castes and Scheduled Tribes will be grouped
together and the percentages will be added. Distribution of
reserved vacancies in each cadre between ‘outsiders’ and
‘insiders’ will be done in the ratio of 2:1. This ratio will be
operationalised by following a cycle ‘outsider’, ‘insider’,
‘outsider’ as is done in the case of general candidates.

(3) Allocation of ‘insiders’, both men and women, will be
strictly according to their ranks, subject to their willingness
to be allocated to their home States.

(4) Allocation of ‘outsiders’, whether they are general
candidates or reserved candidates, whether they are men
or women, will be according to the roster system after
placing ‘insiders’ at their proper places on the chart as
explained below:

(i) All the State cadres/Joint cadres should be
arranged in alphabetical order and divided into
four groups which, on the basis of the average
over a period of time, are taking roughly equal
number of candidates each. On the basis of
average intake during the last 4 years, the
groups could be as follows:

Group I : Andhra Pradesh, Assam, Meghalaya, Bihar
and Gujarat.

Group II : Haryana, Himachal Pradesh, Jammu &
Kashmir, Karnataka, Kerala and Madhya Pradesh.

Group III : Maharashtra, Manipur-Tripura, Nagaland,
Orissa, Punjab, Rajasthan and Sikkim.

Group IV : Tamil Nadu, Union Territory, Uttar Pradesh

11
and West Bengal.

(ii) Since the number of cadres/Joint Cadres is
21, the cycles will be 1-21, 22-42, 43-63
and so on.

(iii) The ‘insider’ quota should then be
distributed among the States and assigned
to different cycles of allotment. For
example, if a State gets 4 ‘insider’
candidates, they should go to the share of
the State in their respective cycles and if
there are 2, ‘insider’ candidates from the
same cycle, they should be treated as
going to the State in two successive cycles
and so on.

(iv) The ‘outsider’ candidates should be
arranged in order of merit and allotted to
the State cadres in cycles as described in

(v) below.

(v) In the first cycle, State cadre/Joint Cadres
which have not received ‘insider’
candidates should be given one candidate
each in order of merit of ‘outsider’
candidates. The process should be repeated
in successive cycles, each successive cycle
beginning with the next successive group of
States, e.g., the second cycle should begin
from Group III States, the third cycle with
Group III States and the fourth cycle with
Group IV States and the fifth cycle again
with Group I States. Occasionally it may
happen that a candidate’s turn may come
in such a way that he may get allocated to
his own home State. When that happens,
the candidate next below him should be
exchanged with him.

(vi) For the succeeding year, the State cadres
should be arranged again in alphabetical
order but with Group I of the previous year
at the bottom, i.e., the arrangement will

12
begin with Group II on top. In the third year,
Group III will come on top and so on.

(vii) In the case of candidates belonging to the
reserved category, such of those
candidates, whose position in the merit list
is such that they could have been
appointed to the service even in the
absence of any reservation, will be treated
on par with general candidates for purposes
of allotment though they will be counted
against reserved vacancies. In respect of
other candidates belonging to the reserved
category a procedure similar to the one
adopted for general candidates would be
adopted. In other words, a separate chart
should be prepared with similar grouping of
States and similar operational details
should be followed. If there is a shortfall in
general ‘insiders’ quota it could, however,
be made up by ‘insider’ reserved
candidates.”

12. It has also come on record that as per a meeting held on

04.07.2002, the number of vacancies to be filled for IAS every year

from 2002 up to 2007 worked out to be 85. Such decision was in

terms of Rule 4 of the Cadre Rules. The review was contemplated

to be after five years as against three years prevalent prior to

notification dated 10.03.1995. It is not the case of any party that

the States had not participated in the meeting held on 04.07.2002.

It was also found that by the time this decision was taken, the

process of Civil Services Examination-200212 was already initiated.

Therefore, the Commission expressed its inability to recruit 85

12For short, the ‘CSE-2002’

13
officers in the CSE-2002. Hence, it was decided to recruit 70

officers in CSE-2002 and distribute the remaining 15 vacancies

over the next four years. Therefore, the actual requirement of

vacancies for CSE-2006 became 89 (85+4).

13. There was requisition for 108 posts by the States as against the 89

posts available for allotment. Kerala had sought 7 to 14 officers as

against 2 officers allocated to it. In the brief notes circulated on

behalf of the Union before this Court on 24.09.2018, it was

mentioned that there were total 595 districts in the country

whereas Kerala had 14 districts at the time of distribution of

vacancies for CSE-2006. Therefore, the vacancies in Kerala were

determined as 14/595*89= 2.09 (rounded off to 2). In the

additional affidavit filed by the Union on 31.10.2018, it was also

pointed out that strength of 89 was divided between the cadres on

the ratio of number of districts in each State. The 2 vacancies in

the State of Kerala were decided to be filled up in the following

manner:

      Total Vacancies                              Category-wise Vacancies

                                       UR                    OBC                 SC/ST

        T       l       O       T       l      O       T      l      O       T     l     O

        2       1       1       1      1       0       1      0      1       0    0      0

T- Total, l-Insider Vacancies, O-Outsider Vacancies

14

14. In respect of the applicant, foot note was given that she is a

General Merit Candidate. She had not availed any

concessions/relaxations admissible to an OBC candidate.

15. In light of this factual background, the argument of the Union was

that in terms of Rule 7(3) of the Recruitment Rules, candidates

belonging to SC/ST or OBC shall be appointed against unreserved

vacancies in case they qualify for appointment to the service

based on their merit without recourse to the benefit of reservation.

However, Rule 7(4) contemplates that the candidates belonging to

SC/ST or OBC may be appointed to the vacancies reserved for the

candidates of the SC/ST or OBC, as the case may be, under sub-

rule (3) with due regard to the maintenance of efficiency of

administration. It was thus contended that in terms of Rule 7(3), if

a SC/ST or OBC candidate is appointed without recourse to the

benefit of relaxed standard, they shall be appointed against

unreserved vacancies. However, Rule 7(4) is an enabling provision,

as an exception to Rule 7(3), that a SC/ST or OBC candidate may

be appointed to the vacancies reserved for SC/ST or OBC

candidates with due regard to maintenance of efficiency of

administration. Therefore, in terms of the Recruitment Rules, the

applicant was assigned Himachal Pradesh cadre as a general

category candidate and in terms of sub-clause (v) and (vi) of

Clause 4 of the allocation circular. The applicant had not availed

15
any concessions/relaxations as admissible to OBC candidates.

Therefore, she was a general merit candidate. Sachindra Pratap

Singh who was an OBC candidate had ranked 26 in the merit list.

He had availed concessions and relaxations available to such OBC

candidates unlike the applicant. Therefore, as an OBC candidate,

the first vacancy of OBC was allocated to Maharashtra cadre as it

was the first State in the grouping of cadres to be followed for

cadre allocation. The scheme of grouping of cadres was that all 24

States were put in the four groups on the basis of the average over

a period of time, by taking roughly equal number of candidates for

each State on the basis of average of the last four years. The State

cadres were then arranged again in alphabetical order but Group I

of the previous year was placed at the bottom, i.e., the

arrangement of the previous year at the bottom. Thus, the next

year arrangement will begin with Group II on top. In the third year,

Group III would come on top and so on. Thus the cadre allocation

of the candidates selected on the basis of CSE 2006 were in the

following manner:-

Changed Order of Grouping of Cadres to be followed for Cadre Allocation of IAS
Candidates of CSE-2006
Group I Group II Group III Group IV

1. Maharashtra 1. Tamil Nadu 1. Andhra Pradesh 1. Haryana

2. Manipur Tripura 2. A G M U T 2. Assam Meghalaya 2. Himachal Pradesh

3. Nagaland 3. Uttarakhand 3. Bihar 3. Jammu & Kashmir

4. Orissa 4. Uttar Pradesh 4. Chhattisgarh 4. Jharkhand

5. Punjab 5. West Bengal 5. Gujarat 5. Karnataka

6. Rajasthan 6. Kerala

7. Sikkim 7. Madhya Pradesh

16

16. It was also argued that consultation contemplated under Rule 5(1)

of the Cadre Rules was held with the State of Himachal Pradesh

where the applicant was allocated. The offer of allocation of the

applicant was accepted by the State of Himachal Pradesh.

Therefore, the required consultation process was complete in

respect of allocation of the applicant to the State of Himachal

Pradesh. The High Court had thus completely erred in law in

holding that the consultation was required to be done with the

State of Kerala for the reason the applicant belongs to Kerala and

wanted to be allocated to Kerala. No such consultation was

warranted in respect of the applicant with Kerala Government as

she was 5th in the merit list of the candidates from Kerala. The first

vacancy meant for insider from a Kerala candidate was filled up by

Prasanna N. The other vacancy was meant for outsider OBC which

was filled in by a person at Serial No. 131 as Kerala was the

second-last State in Group IV for that particular year.

17. It was also argued that decision to fill up 89 vacancies was an

administrative decision keeping in view multiple factors including

the availability of infrastructure for training of the candidates at Lal

Bahadur Shastri National Academy of Administration, Mussoorie. It

was contended that mere vacancy in the cadre or in a particular

State does not confer any legal right for the State to demand

17
additional officers as such administrative decision is not confined

to one State alone but to the entire country. Therefore, the officers

could not be allocated to the State of Kerala in contravention to

the policy decision of filling up 89 vacancies in the CSE-2006.

Reliance was placed upon judgment of this Court reported as The

State of Haryana v. Subhash Chander Marwaha and Ors.13

and Shankarsan Dash v. Union of India14.

18. The appellant also referred to a three Judge Bench judgment of this

Court reported as Union of India and Ors. v. Rajiv Yadav, IAS

and Ors.15 wherein considering the allocation circular, it was held

that a selected candidate had a right to consider the appointment

of the IAS but he had no such right to be allocated to cadre of his

choice or to his home state. Allocation of cadre was an incidence of

service. The Court held as under:

“6. We may examine the question from another angle. A
selected candidate has a right to be considered for
appointment to the IAS but he has no such right to be
allocated to a cadre of his choice or to his home State.

Allotment of cadre is an incidence of service. A member of
an all-India Service bears liability to serve in any part of
India. The principles of allocation as contained in clause (2)
of the letter dated 31-5-1985, wherein preference is given
to a Scheduled Caste/Scheduled Tribe candidate for
allocation to his home State, do not provide for reservation
of appointments or posts and as such the question of
testing the said principles on the anvil of Article 16(4) of the
Constitution of India does not arise. ……………… But for the

13 (1974) 3 SCC 220
14 (1991) 3 SCC 47
15 (1994) 6 SCC 38

18
“Roster System” it would be difficult rather impossible for
the Scheduled Caste/Scheduled Tribe candidates to be
allocated to their home States. The principles of cadre
allocation, thus, ensure equitable distribution of reserved
candidates amongst all the cadres.”

19. It was contended that a judgment of this Court reported as Union

of India and Anr. v. Satya Prakash and Ors.16 arises out of the

fact where OBC candidates selected on merit were taken into

consideration to determine the quota of OBC candidates.

Therefore, the said judgment would not be applicable to the facts

of the present case as it is not the case of any other parties that

OBC candidates appointed on merit have been taken into

consideration for determining the quota of OBC candidates for

filling up of the post in terms of CSE-2006 notification.

20. On the other hand, learned counsel for the applicant argued that

on the basis of the affidavit filed by the State of Kerala, there was

no consultation with it in respect of allocation of the applicant to

the State of Kerala. The reliance is based upon a Division Bench

judgment of Kerala High Court reported as Union of India v.

Jyothilal and Ors.17 wherein for lack of consultation with the

State, the Division Bench held as under:

16    (2006) 4 SCC 550
17    (2003) 3 ILR (Kerala) 516

                                                                                19
            “37.   In view of the above, it is held that:

                   xxx                  xxx                 xxx

            (v)    In the present case, the provision of Rule 5 was not

followed inasmuch as the order of allocation had been
actually passed and communicated by the Central
Government vide its letter dated, December 17, 1993. The
letters for consultation with the State Government had been
issued by the Central Government on February 8, 1994. The
consultation had to precede the order and not follow it. It is
settled that if anything is required to be done in a particular
way, it must be done in that manner and no other. This rule
was admittedly not followed. Thus, the action in the present
case was not in conformity with the provision contained in
Rule 5.”

21. It has been pointed out that Civil Appeal No. 47/2004 against the

said judgment was decided on 03.05.2006 wherein it was held by

this Court as under:

“Although a number of legal issues of seminal importance
were sought to be raised and urged before us, it appears to
us that there no final relief that can be granted to the Union
of India in this Appeal. The first respondent has been
working as an officer of the State of Kerala cadre for almost
ten years. Therefore, it would be unjust and inequitable to
direct his reallocation to the State of Orissa cadre, both
from his point of view and from the point of view of the
efficiency of the administration. We are, therefore, not
inclined to make any such order with regard to the
reallocation of the first respondent to the State of Orissa
cadre.

In the result, we think that a just solution would be to
dismissed this Appeal filed by the Union of India, keeping
open all the issues of law raised in this Appeal to be urged
and decided in a more appropriate case.”

20

22. It is argued that the applicant is an OBC candidate, therefore, she

is in need of availing OBC status only at the time of cadre

allocation, whereas the Union had overlooked this fact. The

candidate at serial no. 26 had been allocated Maharashtra Cadre

as an outsider, whereas, the applicant is also an outsider

candidate so far as Maharashtra is concerned, therefore, she is

entitled to be allocated to Maharashtra cadre.

23. The first question required to be examined is whether consultation

in respect of allocation of cadre is required to be done with the

State from which the candidate belongs or with the State to which

the candidate is being allocated. The entire basis of claim of the

applicant is that there was no consultation with the State of Kerala.

The said argument is however untenable. The applicant was

allocated to the State of Himachal Pradesh and there was a

consent duly given by the State of Himachal Pradesh for her

allocation to that State. In fact, no consultation was required to be

carried out in respect of the applicant with Kerala State. Therefore,

mandate of Rule 5(1) of the Cadre Rules is satisfied when

consultation was made with the State to which allocation was

made.

24. The State of Kerala has not disputed the decision arrived at in the

meeting held on 04.07.2002, whereby the allocation of 89

vacancies to be filled up to the year 2007 was arrived at. Out of 89

21
vacancies, two vacancies were allocated to the State of Kerala, one

to be filled up by an insider and other by an outsider OBC. The fact

that the Kerala Cadre is deficient in respect of number of officers

cannot be disputed by a successful candidate as such candidate

had no right to claim additional vacancies so that the applicant can

be assigned home state. The argument to claim that the entire

deficient cadre should be made by allocation to one State in

preference to other 23 States in the country is preposterous. The

balancing of claims of all the States is to be carried by the Union

and not by one State or by the Courts.

25. The allocation order was approved by this Court in Rajiv Yadav.

The number of vacancies allocated to each State was again based

on logical mechanism as the number of districts in the entire

country i.e., 595 divided by the number of districts in the State.

Thus, in this manner, the vacancies available for allocation to the

various States were arrived at. Accordingly, the two vacancies

were allocated to the State of Kerala and the allocation in other

States was in respect of number of districts available in each State.

26. The applicant claimed allocation to the State of Kerala, i.e., her

home cadre. There were 4 senior candidates in the general

category. She was on merit as a general category candidate,

having not availed any of the relaxed standards meant for a

22
candidate of OBC category. In terms of proviso to Rule 7(3) of the

Recruitment Rules and the proviso to clause 16(1) in the

notification inviting applications for CSE-2006, the candidates

including the applicant were put to notice, that SC/ST or OBC

candidates will be treated as General Category Candidates who

have not availed any concession or relaxation. The applicant was

thus rightly treated as General Category candidate. In terms of

Clause 16(2) of the CSE-2006 notification, the candidates

belonging to the SC/ST or OBC recommended against unreserved

vacancies may be adjusted against reserved vacancies by the

Government, if by this process they get a service of higher choice

in the order of their preference. The applicant was already

allocated IAS as there was no question of change of service.

27. Therefore, as a general category candidate, there was no occasion

for consultation with State of Kerala as the applicant was not even

eligible to be considered for allocation to the said State in terms of

the allocation order. The reasoning given by the High Court that

there was cadre deficiency, therefore, the applicant was entitled to

be allocated is strange and bereft of any merit.

28. The consistent view of this Court has been that even if the name

of the candidate appears in the merit list, such candidate has no

right to claim appointment. The Constitution Bench in a judgment

23
reported as Shankarsan Dash held as under:

“7. It is not correct to say that if a number of vacancies
are notified for appointment and adequate number of
candidates are found fit, the successful candidates acquire
an indefeasible right to be appointed which cannot be
legitimately denied. Ordinarily the notification merely
amounts to an invitation to qualified candidates to apply for
recruitment and on their selection they do not acquire any
right to the post. Unless the relevant recruitment rules so
indicate, the State is under no legal duty to fill up all or any
of the vacancies. However, it does not mean that the State
has the licence of acting in an arbitrary manner. The
decision not to fill up the vacancies has to be taken bona
fide for appropriate reasons. And if the vacancies or any of
them are filled up, the State is bound to respect the
comparative merit of the candidates, as reflected at the
recruitment test, and no discrimination can be permitted.
This correct position has been consistently followed by this
Court, and we do not find any discordant note in the
decisions in State of Haryana v. Subash Chander
Marwaha
[(1974) 3 SCC 220 : 1973 SCC (L&S) 488 : (1974)
1 SCR 165] , Neelima Shangla v. State of Haryana [(1986) 4
SCC 268 : 1986 SCC (L&S) 759] , or Jatinder Kumar v. State
of Punjab
[(1985) 1 SCC 122 : 1985 SCC (L&S) 174 : (1985)
1 SCR 899] .”

29. In Subhash Chander Marwaha, this Court held that the

existence of vacancies does not give any legal right to a candidate

to be selected for appointment. It was held as under:

“10. One fails to see how the existence of vacancies give
a legal right to a candidate to be selected for appointment.

The examination is for the purpose of showing that a
particular candidate is eligible for consideration. The
selection for appointment comes later. It is open then to the
Government to decide how many appointments shall be
made. The mere fact that a candidate’s name appears in
the list will not entitle him to a mandamus that he be
appointed. Indeed, if the State Government while making
the selection for appointment had departed from the
ranking given in the list, there would have been a legitimate

24
grievance on the ground that the State Government had
departed from the rules in this respect. ………… There is no
constraint that the Government shall make an appointment
of a Subordinate Judge either because there are vacancies
or because a list of candidates has been prepared and is in
existence. “

30. Therefore, the decision of the Union to fill only 89 vacancies in the

cadre of IAS cannot be permitted to be disputed. The High Court

had exceeded its jurisdiction to order allocation of Kerala Cadre to

the applicant without examining the policy decision of the Union to

fill up only 89 vacancies. The High Court again erred in law that an

OBC candidate, who has not availed relaxation or concession, had

to be treated as general category candidate.

31. Rule 7(3) of the Recruitment Rules contemplates that the

candidate belonging to the SC/ST or OBC found suitable by the

Commission for appointment to the service “shall be appointed

against unreserved vacancies” in case they qualify for

appointment to the service based on their merit without recourse

to the benefit of reservation. Such provision in the rule is a

consonance with the judgment of this Court in Indra Sawhney

and Ors. v. Union of India and Ors.18 which reads thus:

“811. In this connection it is well to remember that the
reservations under Article 16(4) do not operate like a
communal reservation. It may well happen that some
members belonging to, say, Scheduled Castes get selected
in the open competition field on the basis of their own

18 (1992) Supp. 3 SCC 217

25
merit; they will not be counted against the quota reserved
for Scheduled Castes; they will be treated as open
competition candidates.”

32. Rule 7(4) is to be read as a proviso to Rule 7(3) of the Recruitment

Rules which permits the appointment of candidates of SC/ST or

OBC against the vacancies reserved for such candidates “with due

regard to the maintenance of efficiency of administration” .

Therefore, if a SC/ST or OBC candidate who has been found

suitable for appointment against the unreserved vacancies can be

appointed against the vacancy reserved for SC/ST or OBC,

provided a conscious decision is taken with regard to the

maintenance of efficiency of administration.

33. The applicant though belonging to OBC has not availed any

relaxations or concessions admissible to OBC candidates. She was

a general merit candidate, thus not entitled to OBC reserved seat

in her State. She was allocated to Himachal Pradesh cadre as a

general category candidate falling in Rule 7(3) in view of her merit

position as a general category candidate.

34. Regulation 7 of the Competitive Examination Regulations framed

under the Recruitment Rules does not make mention of OBC

candidate in the list of successful candidates published under Rule

7 but such regulation has to be read in terms of Rule 7 of the

Recruitment Rules as such regulations have been framed in

26
exercise of the powers conferred under Rule 7 of the Recruitment

Rules. It may be a situation of casus omissus but since such

regulation is not in tune with Rule 7 of the Recruitment Rules, it

has to give way to the statutory rules framed. The regulations

cannot be in conflict with the statutory rules. Therefore, the non-

inclusion of OBC in Regulation 7 is inconsequential for the

purposes of the present appeals as the case of the applicant falls

within Rule 7 of the Recruitment Rules.

35. We find that Sachindra Pratap Singh was the first OBC candidate

who had availed concessions or relaxations as OBC and was

allocated to Maharashtra cadre, being the first State in Group I in

the scheme of grouping of States or cadres. Therefore, the

applicant had no claim appointment to the Maharashtra cadre. She

had no right to the Kerala cadre as well as the second post in the

vacancies in the State of Kerala was meant for an OBC outsider

candidate. Since Kerala was second last State in Group IV, the OBC

candidate at Serial No. 131 was allocated such cadre.

36. The appeal before this Court in Satya Prakash was against an

order passed by the Delhi High Court reported as Satya Prakash

v. Union of India19. In the aforesaid case, an OBC candidate was

not appointed to any of the Central Services as the Union had

taken the candidates appointed on general merit though belonging
19 Union of India, 2002 SCC On Line Del 1000 = (2002) 99 DLT 749 (DB)

27
to OBC to determine the percentage of appointed OBC candidates.

The Delhi High Court was examining CSE-1996 which was a

notification inviting applications for 28 different categories of

services. In fact, rules mentioned in the said judgment are not the

rules but clauses provided in the advertisement. The core question

and the answer to the question posed are as under:

“12. The core question which arises for consideration in
these writ petitions, is as to whether those OBC candidates
were selected on merit and were placed in the list of open
category candidate having regard to the decision of the
Apex Court in Ritesh R. Sah’s case (supra), could still for the
purpose of placement be considered to be OBC candidate
leading to deprivation of the other OBC category candidates
from allocation of service whatsoever.

13. ….So far as the reserved category candidates are
concerned, the recommendations of the Commission have
to be considered having regard to the relaxed standard
applied in their case, as is evident from Sub-rule (ii) of Rule
16 aforementioned. The proviso appended to Rule 16 in no
uncertain terms states that such candidates belonging to
the Scheduled Castes, the Scheduled Tribes and Other
Backward Classes, who had been recommended by the
Commission without resorting to the relaxed standard, i.e.,
on merit, shall not be adjusted against the vacancies
reserved for the respective reserved category candidates.

xxx xxx xxx

15. The decision of the Apex Court in Ritesh R. Sah’s
case (supra), as also the proviso to Rule 16 clearly prohibit
deprivation of the benefit of the reservation only because
some reserved category candidates had also been selected
on merit inasmuch as they were not to be treated as
reserved category candidates except for a limited purpose,
namely, for the purpose of allocation of service, but thereby
OBC candidates cannot be deprived of their right to obtain
allocation of any service.

28

…. It cannot be contended that both for the purpose of
allocation of job as also for the purpose of computation as
regards number of OBC category candidates those OBC
candidates selected on merit although were to be treated
as general category candidates but for all intent and
purport they would still be considered to be the reserved
category candidates.

xxx xxx xxx

17. …..The Apex Court clearly held that if a candidate is
entitled to be admitted on the basis of his own merit then
such admission should not be counted as against the quota
of the Scheduled Castes or Scheduled Tribes or any other
reserved category since the same would be against the
constitutional mandate of Article 16(4) of the Constitution
of India.”

37. It is the appeal against the said judgment which was dismissed by

this Court on 05.04.2006 in Satya Prakash. The clause in the

advertisement published on 3.12.2005 is prior to the Judgement of

this Court, therefore, certain clauses in the Rules and/ or

advertisement may not be consistent with the law laid down by

this Court in Indra Sawhney. But such question does not arise for

consideration of this Court; therefore, it is not necessary to decide

the legality and validity of the Rules.

38. The notification dated 3.12.2005 inviting applications for CSE-2006

was in terms of Rule 7 of the Recruitment Rules and also the

allocation circular. The proviso to clause 16(1) of the notification

contemplates that if an SC/ST or OBC candidate has not availed

any concessions or relaxations in the eligibility or selection criteria

29
at any stage of the examination, and if after taking into account

the general qualifying standards is found fit for recommendation

by the Commission, they shall not be recommended against the

vacancies reserved for SC/ST and OBC.

39. It is sub-clause (2) of Clause 16 of CSE-2006 which gives an option

to SC/ST or OBC candidate recommended against unreserved

vacancies to be adjusted against reserved vacancies, if by this

process they get a service of higher choice in order of their

preference. Thus, an SC/ST or OBC candidate selected against

unreserved vacancy as a general merit candidate cannot make a

grievance in respect of allocation of cadre but has a right to seek

service as a reserved category candidate if that improves the

selection of service. In fact, all the candidates including the

applicant were put to notice as to how the cadre allocation would

be made. But still, the applicant chose to claim home state though

she was not eligible to be considered for such state. She had taken

chance in appearing in the selection process but when she was

unsuccessful in getting the home cadre, attempts were made to

get into the home cadre on wholly untenable grounds.

40. In the light of Rajiv Yadav, the allocation of cadre is not a matter

of right. It was held that a selected candidate has a right to be

considered for appointment to the IAS but he has no such right to

30
be allocated to a cadre of his choice or to his home state. As

stated above, allotment of cadre is an incidence of service. The

applicant as a candidate for the All-India Service with eyes wide

open has opted to serve anywhere in the country. Once an

applicant gets selected to service, the scramble for the home

cadre starts. The procedure for allocation of cadre is a mechanical

process and admits no exception except in terms of Rule 7(4)

which is to be read as proviso to Rule 7(3). The State has no

discretion of allocation of a cadre at its whims and fancies.

Therefore, the Tribunal or the High Court should have refrained

from interfering with the allocation of cadre on the argument of

alleged violation of the allocation circular.

41. We find the observation of the High Court that there was a lack of

consultation with the State of Kerala is not acceptable. Such

consultation was not required to be carried out as discussed

above. The finding of the High Court that the determination of

total vacancies to be 89 was affected without any regard to cadre

gap and on the ground that the requisition by the State

Government was ignored as the rules and regulations warranted a

mandatory consultation with the State of Kerala. We find that such

conclusions are not supported by the documents on record

including the additional affidavit filed by the Union. The findings of

the High Court that the action of the Union was arbitrary as the

31
allocation to certain States was more than the cadre gap is again

not sustainable as the 89 vacancies were allocated to the States

on the basis of the norms as disclosed in the brief notes submitted

before this Court.

42. The judgment of the Kerala High Court in Jyothilal again proceeds

on the assumption that consultation was required to be carried out

with the State of Kerala though the candidate was allocated to the

State of Orissa. The judgment proceeds on basic fallacy that

consultation has to be with the State to whom the officer is to be

allocated, not with the State with whom the officers claim

allocation.

43. Before parting, we would like to observe that in terms of Rule 6 of

the Central Administrative Tribunal (Procedure) Rules, 1987, an

application before the Central Administrative Tribunal is required

to be filed where the applicant is posted for the time being or the

cause of action wholly or in part has arisen. The applicant in her

Original Application has not laid any foundation as to how the

Ernakulam Bench of the Central Administrative Tribunal will have

the jurisdiction to entertain an Original Application filed by her. It

appears that the applicant had chosen the Ernakulam Bench for

the reason that she was permanent resident of Kerala State. The

applicant was not posted in the State of Kerala on the date of filing

32
of the application. The applicant has not explained how the cause

of action either wholly or partly had arisen within the jurisdiction of

the Tribunal at Kerala.

44. This Court in a judgment reported as Oil and Natural Gas

Commission v. Utpal Kumar Basu & Ors.20 was examining filing

of a writ petition before the Calcutta High Court for the reason that

the writ petitioner would suffer loss at its registered office which is

situated within the jurisdiction of the Calcutta High Court. It may

be stated that broadly language of Article 226 and Rule 6 of the

Central Administrative Tribunal (Procedure) Rules, 1987 is similar.

This Court considering Article 226 (2) of the Constitution held as

under:

“8. From the facts pleaded in the writ petition, it is clear
that NICCO invoked the jurisdiction of the Calcutta High
Court on the plea that a part of the cause of action had
arisen within its territorial jurisdiction. According to NICCO,
it became aware of the contract proposed to be given by
ONGC on reading the advertisement which appeared in
the Times of India at Calcutta. In response thereto, it
submitted its bid or tender from its Calcutta office and
revised the rates subsequently………….. Therefore, broadly
speaking, NICCO claims that a part of the cause of action
arose within the jurisdiction of the Calcutta High Court
because it became aware of the advertisement in Calcutta,
it submitted its bid or tender from Calcutta and made
representations demanding justice from Calcutta on
learning about the rejection of its offer. The advertisement
itself mentioned that the tenders should be submitted to EIL
at New Delhi; that those would be scrutinised at New Delhi
and that a final decision whether or not to award the
20 (1994) 4 SCC 711

33
contract to the tenderer would be taken at New Delhi. Of
course, the execution of the contract work was to be carried
out at Hazira in Gujarat. Therefore, merely because it read
the advertisement at Calcutta and submitted the offer from
Calcutta and made representations from Calcutta would
not, in our opinion, constitute facts forming an integral part
of the cause of action. So also the mere fact that it sent fax
messages from Calcutta and received a reply thereto at
Calcutta would not constitute an integral part of the cause
of action. Besides the fax message of 15-1-1993, cannot be
construed as conveying rejection of the offer as that fact
occurred on 27-1-1993. We are, therefore, of the opinion
that even if the averments in the writ petition are taken as
true, it cannot be said that a part of the cause of action
arose within the jurisdiction of the Calcutta High Court.”

45. This Court in a Judgment reported as Alchemist Ltd. v. State

Bank of Sikkim21, reviewing the entire case law to determine as

to when the cause of action wholly or in part arises held that even

if a small fraction of the cause of action arises within the

jurisdiction of the court, the court would have territorial jurisdiction

to entertain the suit/petition. This Court held as under:-

“37. From the aforesaid discussion and keeping in view the
ratio laid down in a catena of decisions by this Court, it is
clear that for the purpose of deciding whether facts averred
by the appellant-petitioner would or would not constitute a
part of cause of action, one has to consider whether such
fact constitutes a material, essential, or integral part of the
cause of action. It is no doubt true that even if a small
fraction of the cause of action arises within the jurisdiction
of the court, the court would have territorial jurisdiction to
entertain the suit/petition. Nevertheless it must be a “part
of cause of action”, nothing less than that.”

21(2007) 11 SCC 335

34

46. The Full Bench of the Jurisdictional High Court in a judgment

reported as Nakul Deo Singh v. Deputy Commandant22 was

considering an Original Petition filed before the Kerala High Court

by a Head Constable working in the Central Industrial Security

Force Unit at Bokkaro Steel Plant. In the said case, the disciplinary

authority and the appellate authority were situated outside the

territorial jurisdiction of the High Court. The applicant claimed

that since the order of appellate authority was received within the

jurisdiction of the Kerala High Court, therefore, it will have the

jurisdiction to entertain the Original Petition. The Court held as

under:

“29. …….It appears to us that the decisions in Swaika At
best receipt of the order or communication only gives the
party a right of action based on the cause of action
arising out of the action complained of. When that action
complained of takes place outside the territorial
jurisdiction of the High Court and an appeal therefore is
dismissed by an authority located outside the jurisdiction
of the High Court cause of action wholly arises outside
the jurisdiction of the High Court and Art. 226(2) of the
Constitution cannot be invoked to sustain a Writ Petition
in this High Court on the basis that a part of the cause of
action has arisen within the jurisdiction of this court,
merely because the appellate order communicated from
the seat of the appellate authority was received while the
petitioner was residing or working within the jurisdiction
of this court Acceptance of the argument that the situs of
the receipt of the order will determine the jurisdiction can
lead to a position where a litigant would be in a position
to choose his own court for the purpose of redressal of his
grievance. All that he need do is to move over to a
particular place for receiving the communication from the
appellate authority and then approach the High Court of
22 1999 SCC OnLine Ker 366

35
that place with a plea that that court had jurisdiction
because the order of the appellate authority was served
on him while he was residing within the jurisdiction of
that High Court No litigant can have a right to choose the
court for seeking relief and the mere introduction of
clause 2 of Art. 226 does not alter that position.”

47. It may be noticed that Union had not raised objection about the

entertainment of an Original Application filed by the applicant

before the Ernakulam Bench of the Central Administrative Tribunal.

It appears that the applicant filed an application before the

Ernakulam Bench for the reason that she was permanent resident

in the State or may be for the reason, the order of allocation was

received by her in the State of Kerala. Both of these reasons do

not give rise to part of cause of action arising within the

Jurisdiction of the Ernakulam Bench of Tribunal. At this stage, the

applicant is not being non-suited on the ground that the

Ernakulam Bench of the Tribunal had no jurisdiction.

48. In view of the above, the appeals are allowed and the orders

passed by the High Court and the Tribunal are set aside and the

original application filed by the applicant is accordingly dismissed.

………………………………………J.

(HEMANT GUPTA)

………………………………………J.

(V. RAMASUBRAMANIAN)
NEW DELHI;

OCTOBER 22, 2021.

36



Source link