Union of India and Anr. vs Ms. A. Shainamol, Ias and Anr.

26 who was allocated the Maharashtra cadre as an OBC candidate and, therefore, she should have been allocated the Maharashtra cadre – Tribunal directed the Union of India 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 – High Court held that five 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 SC/ST or the OBC – Since there was no SC/ST candidate, it had to be filled up by insider OBC, i.e., the applicant – On appeal, held: High Court has completely misread the statutory rules and the policy of allocation of cadre – 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 – 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 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 – Therefore, mandate of r.5(1) of the Cadre Rules is satisfied when consultation was made with the State to which allocation was made – 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 candidate of OBC category – In terms of proviso to r.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 – 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 – 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 bereft of any merit – High Court 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 – 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 – Candidate-Merit No.26 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 – Indian Administrative Service (Cadre) Rules, 1954 – r.5(1).

Service Law: All India Service – CSE-2006 – Allocation of home cadre, claimed by OBC candidate, coming on general merit without resorting to the relaxed standard for the candidates belonging to OBC – The notification inviting applications for CSE2006 was in terms of r.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 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 – 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 – Indian Administrative Service (Recruitment) Rules, 1954 – r.7. Indian Administrative Service (Recruitment) Rules, 1954: OBC candidate, coming on general merit without resorting to the relaxed standard for the candidates belonging to OBC – Entitlement to OBC reserved seat in her State – Held: r.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. – r.7(4) is to be read as a proviso to r.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 – 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 r.7(3) in view of her merit position as a general category candidate.

Service Jurisprudence: 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 r.7(4) which is to be read as proviso to r.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 – Indian Administrative Service (Recruitment) Rules, 1954 – r.7(3) – Service law.

Allowing the appeals, the Court

HELD: 1. 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 30/31.05.198511. 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. [Para 11][414-B-C]

2. It has 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-2002 was already initiated. Therefore, the Commission expressed its inability to recruit 85 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). [Para 12][416-G-H; 417-A-B]

3. 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. [Para 13][417-B-D]

4. 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. [Para 23][421-G-H; 422-A]

5. 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 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. [Para 24][422-B-C]

Union of India and Ors. v. Rajiv Yadav, IAS and Ors. (1994) 6 SCC 38 : [1994] 2 Suppl. SCR 30 – relied on.

6. 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. [Para 25][422-D-E]

7. 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 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. 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. [Paras 26 and 27][422-E-H; 423-A-B]

8. 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. [Para 28][423-B-C]

Shankarsan Dash v. Union of India (1991) 3 SCC 47 : [1991] 2 SCR 567 – followed.

The State of Haryana v. Subhash Chander Marwaha and Ors. (1974) 3 SCC 220 : [1974] 1 SCR 165 – relied on.

9. 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. [Para 30][424-C-D]

10. 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. [Para 31][424-E-F]

Indra Sawhney and Ors. v. Union of India and Ors. (1992) Supp. 3 SCC 217 : [1992] 2 Suppl. SCR 454 – relied on.

11. 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. [Para 32] [424-G-H; 425-A-B]

12. 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. [Para 33][425-B-C]

13. 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 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. [Para 34][425-C-E]

14. Candidate-Merit No.26 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. [Para 35][425-E-G]

Satya Prakash v. Union of India 2002 SCC On Line Del 1000 : (2002) 99 DLT 749 (DB) – referred to.

15. 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 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. [Para 38][427-D-E]

16. 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. [Para 39][427-F-H; 428-A]

17. 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 be allocated to a cadre of his choice or to his home state. 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. [Para 40][428-B-D]

18. 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. 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. 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 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. [Para 41][428-D-F]

19. 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. [Para 42][428-G]

20. 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 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. [Para 43][428-H; 429-A-B] Oil and Natural Gas Commission v. Utpal Kumar Basu & Ors. (1994) 4 SCC 711 : [1994] 1 Suppl. SCR 252; Alchemist Ltd. v. State Bank of Sikkim (2007) 11 SCC

335 : [2007] 4 SCR 46; Nakul Deo Singh v. Deputy Commandant 1999 SCC OnLine Ker 366 – referred

to.

21. The Union of India had not raised objection about the entertainment of an Original Application filed by the applicant before the Ernakulam Bench of the Central Administrative Tribunal. 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. [Para 47][431-F-G] Union of India and Anr. v. Satya Prakash and Ors. (2006) 4 SCC 550 : [2006] 3 SCR 789; Union of India v. Jyothilal and Ors. (2003) 3 ILR (Kerala) 516 – referred to.