IN THE HIGH COURT OF KERALAAT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE [ENTITY] & THE HONOURABLE MR. JUSTICE [ENTITY] FRIDAY, THE 18TH DAY OF JULY 2014/27TH ASHADHA, 1936 [CASE NUMBER] (Z) AGAINST THE ORDER IN OA 209/2009 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 2[SECTION]-11-2011 PETITIONER(S)/PETITIONER/APPLICANT IN THE O.A.: S.SYAM SUNDER S/O. SUNDERARAJAN S., AGED 32 YEARS ASSISTANT SUPERINTENDNET OF POLICE, CHINTHAPALLI VISHAKHAPATTANAM DISTRICT,ANDHRA PRADESH RESIDING AT VASANTHI MANDIRAM, VADAKKEVILA P.O. KOLLAM-691010. BY ADVS.SRI.M.R.HARIRAJ SRI.SURAJ.S SRI.P.A.KUMARAN SMT.VINEETHA B. SRI.NIRMAL V NAIR SRI.ANISH JAIN SMT.M.A.JINSA MOL SRI.M.R.RAJENDRAN NAIR (SR.) RESPONDENT(S)/RESPONDENTS/RESPONDENTS IN O.A.: 1. UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT TO MINISTRY OF HOME AFFAIRS NEW DELHI-110001. 2. STATEOF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA SECRETARIAT,THIRUVANANTHAPURAM-69[SECTION]001. 3. STATEOF ANDHRA PRADESH REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT OF ANDHRA PRADESH SECRETARIAT, HYDERABAD, PIN-[SECTION]00463. 4. A.AKBAR SUPERINTENDENT OF POLICE (RURAL) OFFICE OF THE SUPERINTENDENT OF POLICE (RURAL) THIRUVANANTHAPURAM, PIN-69[SECTION]014. R1 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA ADV.T.SANJAY R2 BY SR.GOVT PLEADER SRI.S.JAMAL R4 BY ADV. SRI.ELVIN PETER P.J. R4 BY ADV. SRI.T.G.SUNIL (PRANAVAM) THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 18-07-2014, ALONG WITH OPCAT. 1086/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: [CASE NUMBER] (Z) APPENDIX PETITIONER(S)' EXHIBITS EXHIBIT P1: A TRUE COPY OF THE FINAL ORDER DATED 2[SECTION].11.2011 IN OA.209/2009 ON THE FILE OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXHIBIT P2: A TRUE COPY OF OA.209/2009 ALONG WITH THE ANNEXURES. ANNEXURE A1: TRUE COPY OF NOTIFICATION UNDER RULE [SECTION] OF THE IPC CADRE RULES, 19[SECTION]4 DATED 19.1.2006. ANNEXURE A14: TRUE COPY OF ORDER F.NO.1.14012/3/2009-IPS-IV 13.2.2008 ISSUED FOR THE FIRST RESPONDENT. ANNEXURE A2: TRUE COPY OF THE DO LETTER DATED 30.7.1984 ISSUED FOR THE FIRST RESPONDENT. ANNEXURE A3: TRUE COPY OF THE LETTER NO.13013/[SECTION]/84-AIS(1) DATED 31.[SECTION].198[SECTION]. ANNEXURE A4: TRUE COPY OF ANSWER STATEMENT TO THE UNSTARRED QUESTION NO.[SECTION]68[SECTION] DATED 4.9.1991 TABLED BEFORE THE LOK SABHA. ANNEXURE A[SECTION]: TRUE COPY OF FINAL ORDER DATED [SECTION].9.2001 IN OA.72[SECTION]/1998 OF THIS HONOURABLE TRIBUNAL. ANNEXURE A6: TRUE COPY OF JUDGMENT DATED 10.8.2006 [CASE NUMBER] OF THE HONOURABLE HIGH COURT OF KERALA. ANNEXURE A7: TRUE COPY OF FINAL ORDER IN [CASE NUMBER] DATED [SECTION].11.2002 ON THE FILE OF THIS HONOURABLE TRIBUNAL. ANNEXURE A8: TRUE COPY OF ORDER NO.1-21023/21/2007-IPS.IV DATED 1.6.2007. ANNEXURE A9: TRUE COPY OF EXTRACTS OF ROSTER MAINTAINED BY THE FIRST RESPONDENT IN RESPECT OF THE KERALA CADRE. ANNEXURE A10: TRUE COPY OF CIVIL LIST AS ON 1.7.2008 OF THE INDIAN POLICE SERVICE. ANNEXURE A11: TRUE COPY OF ORDER NO.1-1402/9/2004-IPS-IV DATED 27.9.2004. ANNEXURE A12: TRUE COPY OF REPERSENTATION DATED 14.10.2007. ANNEXURE A13: TRUE COPY OF THE FINAL ORDER DATED 26.11.2008 IN [CASE NUMBER]. EXHIBIT P3: A TRUE COPY OF THE REPLY STATEMETN FILED BY THE 1ST RESPONDENT. ANNEXURE R1: A PHOTOSTAT COPY OF THE ORDER DATED 13.4.2000 IN OA.[SECTION]21/2000 OF THE HONOURABLE CENTRAL ADMINISTRATIVE TRIBUNAL, HYDERABAD BENCH. [CASE NUMBER] (Z) ANNEXURE R2:A PHOTOSTAT COPY OF THE ORDER DATED 21.11.2003 IN [CASE NUMBER] OF THE HONOURABLE CENTRAL ADMINISTRATIVE TRIBUNAL, BANGALORE BENCH. ANNEXURE R3: A PHOTOSTAT COPY OF THE ORDER DATED 16.4.2004 IN WP.[SECTION]416[SECTION]/03 OF the HONOURABLE HIGH COURT OF KARNATAKA. ANNEXURE R4: A PHOTOSTAT COPY OF THE ORDER DATED 30.8.2004 IN [CASE NUMBER] IN WP.[SECTION]416[SECTION]/03 OF THE HONOURABLE HIGH COURT OF KARNATAKA. ANNEXURE R[SECTION]: A PHOTOSTAT COPY OF THE ORDER DATED 24.1.2006 IN OA.882/04 OF THIS HONOURABLE TRIBUNAL. ANNEXURE R6: A PHOTOSTAT COPY OF THE LETTER NO.23669/SPL.A3/200[SECTION]/GAD DATED 2.4.200[SECTION]. ANNEXURE R7:A PHOTOSTAT COPY OF THE DETAILS OF PROCEDURE FOLLOWED IN THE ALLOTMENT OF CADRE TO THE OFFICERS OF THE ALL INDIA SERVICE. EXHIBIT P4: A TRUE COPY OF THE REPLY STATEMENT FILED BY THE 2ND RESPONDENT. EXHIBIT P[SECTION]: A TRUE COPY OF THE REPLY STATEMENT FILED BY THE 3RD RESPONDENT. EXHIBIT P6: A TRUE COPY OF THE REJOINDER FILED BY THE PETITIONER. EXHIBIT P7: A TRUE COPY OF THE REPLY STATEMENT FILED BY THE 4TH RESPONDENT. ANNEXURE R4(a): PHOTOCOPY OF THE GO(RT)NO.410[SECTION]/2009/GAD DATED 10.6.2009 TO THE 2ND RESPONDENT. ANNEXURE R4(b): PHOTOCOPY OF THE TENTATIVE INTERSE SENIORITY OF IPS OFFICERS OF 200[SECTION] BATCH WITH COMMUNICATION NO.1-14012/4/2009-IPS.IV DATED 7.7.2011 OF THE GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI. /TRUE COPY/ PS TO JUDGE [ENTITY] & [ENTITY], JJ. [CASE NUMBER] Dated this the 18th day of July, 2014 JUDGMENT
[ENTITY], J.
1.These Original Petitions are filed by the applicants in O.A.Nos.209 of 2009 and [SECTION]37 of 2010 of the Central Administrative Tribunal, Ernakulam Bench. By a common order dated 2[SECTION].11.2011, the Tribunal having dismissed the Original Applications, these Original Petitions are filed. Since the issues raised are common, these cases were heard together and are disposed of by this common judgment.
2. In 2004, the petitioner in [CASE NUMBER], the applicant in [CASE NUMBER], had appeared in the Civil Services Examination conducted by the Union Public Service Commission and secured rank No.41 in the All India rank list. He opted for Indian Police Service and according to him, he was rank No.1 among those who had opted for IPS. The petitioner expressed his willingness for allocation to the Kerala Cadre as an insider general candidate. However, he was allocated to Andra Pradesh cadre and the 4th respondent in the [CASE NUMBER] Original Petition, being an OBC candidate, who had secured rank No.204, was allocated to the Kerala Cadre. It was thereupon that the petitioner filed [CASE NUMBER] before the Central Administrative Tribunal, Ernakulam contending that he was entitled to be allocated to the Kerala cadre.
3. The applicant in O.A No.[SECTION]37/10, who has filed O.P. (CAT).1086/13, had secured 93rd rank in the All India rank list published following the Civil Services Examination held in 2006. He too had opted for allocation to the Kerala cadre of IPS as an insider general candidate. However, the [SECTION]th respondent, an OBC candidate, who was inferior to him in rank, was allocated to Kerala cadre and the petitioner was allocated to Gujarat cadre. According to him, he was entitled to be allocated to the Kerala Cadre in the 'insider' general quota. Alternatively, he also contended that as he belonged to OBC category, he should be extended the benefit available to the OBC category in the matter of allocation also, though his original selection was in the general category.
[CASE NUMBER]
4.In the order impugned, the Tribunal rejected the contention of the petitioner in [CASE NUMBER] that he was eligible to be considered as an OBC candidate, on the ground that he belonged to OBC creamy layer and that in column No.6(a), he had indicated his community as 'General Category (Others), Code No.4'. According to the Tribunal, as per Note 2 to column 6(a), no change in the community status indicated by a candidate in his/her application form for the Civil Services (Pre.) Examination will ordinarily be allowed by the Commission and there was nothing on record to show that he had changed his community status. Having regard to the nature of the order that we are passing, it is unnecessary to consider this issue.
[SECTION].Proceeding further, the Tribunal examined the claim of the petitioners in these two Original Petitions for allocation to the Kerala cadre as 'insider' general candidates and rejected their claims holding thus in paragraphs 11 and 12 of the order:
[CASE NUMBER] "11. As for the shortage of candidates in the IPS cadre of Kerala State, it can happen only if a minimum percentage is prescribed for 'insiders'. As per policy at least 66 2/3% of direct recruits in a State Cadre in All India Services must be from outside the State cadre. There is a minimum requirement of 66 2/3 % of outsiders in a State cadre, but it is not a ceiling as held by Hon'ble Supreme Court in the case of [ENTITY] vs. [ENTITY] and Others and [ENTITY] vs. Kumar Bindhyeswari Negi & others (JT 1996 (8) SC 499). There is no such minimum requirement for 'insiders' although the ratio between 'outsider' and 'insider' is 2:1. This ratio is to be maintained over a period of time. As number of vacancies in a cadre is likely to be small and counting vacancies in various categories involves rounding off, it is possible, there can be a marginal excess/shortfall in the percentage of reservation of various categories in a cadre in a particular year. A marginal variation in the percentage of reservation cannot be treated as fatal to the allotment process as per rules.
Moreover, the applicants being AIS officers, they are liable to serve anywhere in India. As held by Hon'ble Supreme Court in the case of [ENTITY] and Others v. [ENTITY], 1994(6) SCC 38, an AIS officer has no right to claim allocation of his home State or a cadre of his choice and is liable to serve all over India. The lone 'insider' vacancy of Kerala as per 30 point reserved roster in the year 2004 was meant for SC/ST category [CASE NUMBER] candidates. Again the lone 'insider' vacancy in the year 2006 was meant for the OBC category. There was no backlog of 'insider' general vacancy in the 30 point vacancy of roster for Kerala either in 2004 or 2006. Therefore, the contention that there was a shortage of insider general candidate is not substantiated.
12. It is seen that the reserved category has been allocated 1[SECTION] vacancies as against 14 required from the [ACT]. This excess of one post has arisen from the fact that mathematical exactitude is not possible while rounding off the fractions. Any excess/shortfall due to rounding off in a particular cadre is taken care of when allocation is made every year by averaging the shortfall/excess of at least [SECTION] years CS Examinations. Therefore, we do not find any merit in the contention of the applicants that the OBC is over represented in the IPS cadre of Kerala either in the year 2004 or in the year 2006. In the year 2006, as per 30 point vacancy roster, out of 3 vacancies, one was for an 'insider' candidate against roster point No.14 and two were for 'outsider' candidates against roster point Nos. 1[SECTION] and 16. As per 30 point reservation roster, the 'insider' vacancy was for OBC candidate against roster point No.29. Out of two 'outsider' vacancies, one was to be filled up by SC/ST category against roster point No.28 and the other vacancy was earmarked for general category. As there was no 'insider' general [CASE NUMBER] category vacancy in the IPS cadre of Kerala for [CASE NUMBER], the applicant in O.A. No. [SECTION]37 of 2010 cannot be allocated to Kerala cadre. In the year 2004, due to non-availability of SC/ST candidates the insider SC/ST vacancy was filled up by allocating insider OBC candidate as per the rules. For the sake of convenience , the relevant part of the details of procedure followed in the allotment of cadre to the officers of the All India Service is reproduced as under:
9. If a general candidate is not available to fill general insider vacancy then it is filled by an insider SC/ST candidate provided there is an ST/ST outsider vacancy available in that cadre to facilitate exchange. If SC/ST insider candidate is not available or SC/ST outsider vacancy is not available in that cadre then the general vacancy is filed by insider OBC candidate with the same condition that there must be an outsider OBC vacancy to facilitate the exchange. Similarly, the insider OBC vacancy, if not filled due to non-availability of insider OBC candidate is first filled by an insider SC/ST candidate and then by insider general candidate with the same conditions. An unfilled insider SC/ST vacancy is first filled by insider OBC candidate and then by a general insider candidate with the same conditions."
6. A reading of the order shows that the Tribunal found that from the year 1994 to 2003, among the reserved [CASE NUMBER] category, against the requirement of allocating 14 candidates, 1[SECTION] were allocated. Annexure A11 dated 27.9.2004 is a letter issued by the Government of India, Ministry of Home Affairs and in this letter, it was stated thus in paragraph 3:
"3. At the time of approximation of category wise vacancies to be filled up in each IPS cadre through [ACT], it was found that in IPS cadre of Kerala, there was a shortage of 10% SC/ST category candidates, where the OBC category candidates were already 30% against the prescribed percentage of 27%. Moreover, there was also a mis-match between 30 point Vacancy Roster and 30 Point Reserve Roster in respect of OBC category vacancy in IPS cadre of Kerala. Therefore, there was no alternative but to increase the number of SC/ST category candidates in IPS cadre of Kerala by reducing the number of OBC category candidates to be allocated cadres through [CASE NUMBER]."
7.From this itself, it is evident that OBC representation in the Kerala Cadre was excess.
Inspite of it in 2004, on the ground that no SC/ST candidate had qualified in Civil Services Examinations from the State of Kerala, the insider [CASE NUMBER] SC/ST vacancy in the State was exchanged and was filled up by allocation of insider OBC category candidate in the purported compliance of paragraph 9 of the procedure for cadre allocation. Thus the 4th respondent in [CASE NUMBER] was allocated to Kerala Cadre, overlooking the superior rank secured by the petitioner, a general candidate. In other words, the excess representation, continued as before even after the allotment of the 4th respondent in OP(CAT).
1023/12.
8.In so far as the allocation of candidates who were ranked in 2006, which is the issue raised in OP(CAT).
1086/13, is concerned, in that case also despite the fact that the petitioner therein, a general candidate, who had secured Rank No.93 had opted for allotment to Kerala cadre as an insider general candidate, the [SECTION]th respondent, an OBC candidate, who had secured inferior ranking was allocated to Kerala Cadre. As a result, the representation of OBC which was already in excess of the permitted 27%, was again increased.
[CASE NUMBER]
9.According to the Tribunal, this excess of one post had arisen for the reason that mathematical exactitude was not possible and that any excess/shortfall due to rounding off in a particular cadre is taken care of when allocation is made every year by averaging the shortfall/excess of at least last [SECTION] years of the examination. On that basis, the Tribunal did not find any merit in the contention of the applicants that there was over-representation of OBCs in the IPS cadre of the Kerala State, either in the year 2004 or in the year 2006. The Tribunal has also drawn support to the above reasoning from paragraph 9 of the details of procedure followed in the allotment cadre to the officers of the All India Service which has been reproduced in paragraph 12 of the impugned order. It is this order of the Tribunal which is impugned before us.
10.Having heard the submissions made by both sides, we are inclined to think that the issue canvassed by the petitioners stands fully answered by the Apex Court in its decision in C.M. THRI VIKRAMA VARMA v.
AVINASH MOHANTY AND OTHERS [(2011) 7 SCC 38[SECTION]]. That [CASE NUMBER] was a case where, as in the case of the petitioner in [CASE NUMBER], following the [ACT], the respondent therein was selected and appointed to IPS. Though he had secured 4[SECTION]th rank and had opted for Andhra Pradesh cadre as an insider general candidate, he was allocated to Chhattisgarh cadre, whereas, the petitioner before the Supreme Court, who had secured 201st rank in the rank list, was allocated to the Andhra Pradesh cadre, giving him the benefit of his status as OBC candidate. The respondent therein challenged the allocation before the Central Administrative Tribunal, Hyderabad and on the dismissal of his O.A., he filed a writ petition before the High Court.
11.The writ petition was allowed and the allocation of the respondent to the Andhra Pradesh cadre was quashed. The [ENTITY] was also directed to reconsider the allocation in accordance with law. In the appeal that was filed against the judgment of the High Court, after referring to [SECTION] and [SECTION] of the Indian Police Service (Cadre), 19[SECTION]4 and also the letter dated 31.0[SECTION].198[SECTION] of the Secretary, Government [CASE NUMBER] of India, Ministry of Personnel and Training, containing the broad principles to be followed for allocation, the Apex Court held thus:
12. [SECTION] and [SECTION] of the Indian Police Service (Cadre) Rules, 19[SECTION]4, are quoted hereinbelow:
"3. [ACT] of Cadres. (1) There shall be constituted for each State or group of States an Indian Police Service Cadre.
(2) The Cadres so constituted for a State or a group of States are hereinafter referred to as a `State Cadre' and a `Joint Cadre' respectively.
* * *
[SECTION]. 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 Governments or State Government concerned.
(2) The Central Government may, with the concurrence of the State Governments concerned, transfer a cadre officer from one cadre to another cadre."
13. It will be clear from [SECTION] that each State and a group of States will have a State cadre or Joint cadre respectively of IPS and it will be further clear from [SECTION] that the Central Government in consultation with the State Government or State Governments concerned has the power to make allocation of IPS officers to various cadres.
[CASE NUMBER]
14. The broad principles, which are to be followed for allocation, have been indicated in Para 3 of the Letter dated 31-[SECTION]-198[SECTION] and are extracted hereinbelow:
"(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 maintained, over a period of time, if not during every 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 the Scheduled Castes and Scheduled Tribes will be reserved in the various cadres according to the prescribed percentage. For purpose of this reservation, the Scheduled Castes and Scheduled Tribes will be grouped together and the percentage will be added. Distribution of reserved vacancies in each cadre between `outsiders' and `insiders' will be done in the ratio 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 groups which, on the basis of the average over a [CASE NUMBER] period of time, are taking roughly equal number of candidates each. On the basis of average intake during the last 4 years, the group could be as follows:
Group I: Andhra Pradesh, Assam-Meghalaya, Bihar and Gujarat.
Group II: Haryana, Himachal Pradesh, Jammu and Kashmir, Karnataka, Kerala and Madhya Pradesh.
Group III: Maharashtra, Manipur-Tripura, Nagaland, Orissa, Punjab, Rajasthan and Sikkim. Group IV: Tamil Nadu, Union Territories, Uttar Pradesh 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 cadre 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 II States, the third cycle with Group III States and the fourth [CASE NUMBER] cycle with Group IV States and the first 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 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 a 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 category 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."
1[SECTION]. It will be clear from a reading of Clause (1) of the broad principles of allocation in the Letter dated 31-[SECTION]- 198[SECTION] quoted above, that vacancies in every cadre are required to be earmarked for outsiders and insiders in the ratio of 2:1 and in order to avoid problems relating to fractions and to ensure that this ratio is maintained, over a period of time, if not during every allocation, the [CASE NUMBER] break-up of vacancies in a cadre between outsiders and insiders will have to be calculated following this cycle of "outsider", "insider", "outsider".
16. Clause (2) of the broad principles of allocation in the Letter dated 31-[SECTION]-198[SECTION] further provides that the vacancies for Scheduled Castes and Scheduled Tribes are to be reserved in the various cadres according to the prescribed percentage and for the purpose of this reservation, the Scheduled Castes and Scheduled Tribes are to be grouped together and the percentage to be added and distribution of reserved vacancies in each cadre between outsiders and insiders are to be done in the ratio of 2:1 and this ratio is to be operationalised by following a cycle of "outsider", "insider", "outsider" as is done in the case of general candidates.
17. In [ENTITY] case, [ENTITY] appeared in the Civil Services Examination held in 1988 and he was selected for appointment to IAS and he was placed at Serial No. 16 in the order of merit. Though he belonged to the Union Territory of Delhi and he opted for the Union Territory's cadre, he was allocated to the Manipur-Tripura cadre. He challenged the order allocating him to the Manipur-Tripura cadre before the Central Administrative Tribunal, New Delhi, raising various contentions and the Tribunal held that the power conferred by [SECTION] of the [ACT] is only for making provision for reservation of appointment or posts in favour of any backward class of citizens not adequately represented in the services under the State and cannot be extended to allocation of members of IAS to different cadres. The Tribunal further held that Clause (2) of the principles of allocation gave an [CASE NUMBER] added benefit to IAS probationers belonging to the Scheduled Castes and Scheduled Tribes and this was not permissible under [SECTION] of the [ACT]. This Court did not approve of this reasoning of the Tribunal and held that the principles of allocation as contained in Clause (2) of the Letter dated 31-[SECTION]-198[SECTION] do not provide for reservation for appointments or posts and as such the question of testing the principles of allocation on the anvil of [SECTION] of the [ACT] does not arise.
18. In para 6 of the judgment in [ENTITY] case, the Court explained that in compliance with the statutory requirements and in terms of [SECTION] of the [ACT], 22=% reserved category candidates are recruited to IAS and having done so, both the categories are to be justly distributed amongst the States. The Court also held that when a person is appointed to the All-India Service, having various State cadres, he has no right to claim allocation to a State of his choice or to his home State and the Central Government is under no legal obligation to have options or even preferences from the officer concerned and [SECTION] of the Indian Administrative Service (Cadre) Rules, 19[SECTION]4, made the Central Government the sole authority to allocate the members of the service to various cadres.
19. This position of law was reiterated in [ENTITY]. The Court, however, has not held in [ENTITY] or in [ENTITY] that such authority of the Central Government can be exercised arbitrarily or in a manner which is not equitable to the general or reserved category candidates selected for appointment [CASE NUMBER] to an All-India Service. On the contrary, the Court has held in [ENTITY] that the roster system as contained in the Letter dated 31-[SECTION]-198[SECTION] ensures equitable treatment to both the general candidates and the reserved candidates.
20. In fact, the object of the principles of allocation indicated in different clauses in the Letter dated 31-[SECTION]- 198[SECTION] is not only to implement the policy having 2 outsiders and 1 insider in each cadre, but also to ensure that general and reserved candidates selected and appointed to the All-India Service get a fair and just treatment in the matter of allocation to different cadres. This will be clear from Clause (2) of the Letter dated 31-[SECTION]-198[SECTION] which states that the vacancies for the Scheduled Castes and Scheduled Tribes in the various cadres should be according to the prescribed percentage and from Clause (3) which states that the 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. This will also be clear from Clause 4(vii) which explains how the candidates belonging to the reserved category and the general category will be dealt with. These principles have been laid down in the Letter dated 31-[SECTION]-198[SECTION] because while making allocations of different candidates appointed to the service to different State cadres or Joint cadres, the Central Government has also to discharge its constitutional obligations contained in the equality principles in [SECTION] and [SECTION] of the [ACT]. A member appointed to the All-India Service has no right to be allocated to a particular State cadre or Joint cadre, but he has a right to a fair [CASE NUMBER] and equitable treatment in the matter of allocation under [SECTION] and [SECTION] of the [ACT].
21. Coming now to the facts of this case, we find that the High Court has in the impugned judgment extracted the table of vacancies filled up from Civil Services Examination, 1994-2003, as furnished in Para 28 of the counter-affidavit dated 22-3-2007 filed by the [ENTITY] before the High Court, which is extracted hereunder:
Sl. No.CSE Total vacancies Insider Outsider GEN OBC SC/ST GEN OBC SC/ST
1. 1994 7 - 1 1 3 1 1
2. 199[SECTION] [SECTION] 1 1 - 1 1 1
3. 1996 6 2 - - 1 2 1
4. 1997 2 - - - 2 - -
[SECTION]. 1998 1 - 1 - - - -
6. 1999 1 - - - 1 - -
7. 2000 1 - - - 1 - -
8. 2001 1 - - 1 - - -
9. 2002 1 - - - - 1 -
10. 2003 4 - 1 - 2 - 1 Total 29 3 4 2 11 [SECTION] 4
22. After considering this table, the High Court has held in the impugned judgment that even according to the [ENTITY], as against a total of 29 vacancies 9 OBC candidates (4 insiders + [SECTION] outsiders) had been allocated to the Andhra Pradesh cadre from amongst the successful candidates of the Civil Services Examinations from 1994-2003 and if [ENTITY], an insider OBC candidate, was to be allocated to the Andhra Pradesh cadre from the selected candidates of [CASE NUMBER] the [ACT], a total of 10 OBC candidates would be allocated to the Andhra Pradesh cadre in the 30-point roster, making the percentage of OBC candidates to 33-1/3%, which was a variation of 6% in excess and by any standard was not a marginal variation.
23. The [ENTITY], in Para 32 of its counter- affidavit before the Tribunal in [CASE NUMBER], has, however, stated that from the five [CASE NUMBER] a total of 8 candidates appointed to IPS were allotted to the Andhra Pradesh cadre, out of which 2 were OBC candidates and 2 out of 8 does not exceed 27% and, therefore, there was neither any excess nor any shortfall of allocation of OBC candidates in the Andhra Pradesh IPS cadre. We fail to appreciate this calculation of percentages on reserved category candidates allotted to the Andhra Pradesh cadre worked out on the basis of number of candidates allotted to the Andhra Pradesh cadre from the five Civil Services Examinations, from 1999-2003, when in the very same counter-affidavit of the [ENTITY] filed before the Tribunal in [CASE NUMBER], in Para 21, it is clearly stated that a 30-point roster in respect of Andhra Pradesh was being maintained for allocation of insider and outsider, as well as, reserved and general candidates in accordance with [SECTION] of the Letter dated 31-[SECTION]-198[SECTION].
24. It appears to us that only with a view to somehow justify the allocation of [ENTITY], an OBC candidate, to the Andhra Pradesh cadre from the [ACT], has the [ENTITY] taken the figures of allocation of candidates selected [CASE NUMBER] for IPS in the five Civil Services Examinations of 1999 to 2003 instead of taking the figures of appointments to the vacancies in the 30-point roster starting from the 1994 Civil Services Examination till 2003 Civil Services Examinations.
2[SECTION]. Admittedly, [ENTITY] had secured a higher rank than [ENTITY] in the [ACT] and both [ENTITY] and [ENTITY] are insiders. Clause (3) of Para 3 of the Letter dated 31-[SECTION]-198[SECTION] states that 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. Hence, [ENTITY] was required to be considered for allocation to the Andhra Pradesh cadre if he had given his willingness for being allocated to his home State, Andhra Pradesh, before [ENTITY] could be considered for such allocation. If, however, the vacancy for which consideration was being made was a vacancy for an insider OBC candidate in the 30-point roster, [ENTITY] would have preference over [ENTITY]. But the High Court has come to a finding that the number of vacancies in the 30-point roster filled up by OBC candidates from [CASE NUMBER] were 9 and had exceeded the 27% reservation for OBC candidates and hence there could not be an insider OBC vacancy in which [ENTITY] could have been allocated. The High Court was, therefore, right in coming to the conclusion that allocation of [ENTITY] to the Andhra Pradesh cadre was in violation of the guidelines contained in the Letter dated 31-[SECTION]-198[SECTION] and was clearly arbitrary and not equitable.
[CASE NUMBER]
26. In our view, complexity of a decision-making process cannot be a defence when a grievance is made before the Court by a citizen that his fundamental right to equality has been violated. When such a grievance is made before the Court, the authorities have to justify their impugned decision by placing the relevant material before the Court.
27. As has been held by a [ACT] Bench of this Court in M. Nagaraj v. [ENTITY]: (SCC p. 277, para
118) "118. The constitutional principle of equality is inherent in the rule of law. However, its reach is limited because its primary concern is not with the content of the law but with its enforcement and application. The rule of law is satisfied when laws are applied or enforced equally, that is, even-handedly, free of bias and without irrational distinction. The concept of equality allows differential treatment but it prevents distinctions that are not properly justified. Justification needs each case to be decided on case-to-case basis."
28. We are also of the considered opinion that the impugned order of the High Court quashing the allocations of [ENTITY] and [ENTITY] and directing reconsideration of their allocation will not have a cascading effect on the service because the High Court has quashed the allocation of only two members of IPS, namely, [ENTITY] and [ENTITY], and not of other members of IPS and directed reconsideration of their allocation."
[CASE NUMBER]
12.The principles laid down show that allotment of candidates shall be according to rank and based on the willingness of the candidates, though no candidate has any right to be alloted to his home state. Further while allotting candidates 30 point roster shall be maintained and that when OBC candidates are already in position in excess of their quota, no further allotments could have been made.
Once, the above legal principle is accepted, it does not need anymore deliberation to conclude that in the facts of these cases, the allocation of the 4th respondent in [CASE NUMBER] and the [SECTION]th respondent in [CASE NUMBER] to the Kerala Cadre of IPS, ignoring the superior ranking and willingness of the petitioners herein is illegal.
13.Therefore, the common order passed by the Central Administrative Tribunal, Ernakulam Bench, dismissing [CASE NUMBER] is set aside and the allocation of respondents 4 and [SECTION] in these cases to the Kerala Cadre is quashed. The 1st respondent, [ENTITY], is directed to reconsider the [CASE NUMBER] allocation of the petitioners herein, duly taking into account their ranking and option exercised.
This shall be done as expeditiously as possible, at any rate, within 6 months of receipt of a copy of this judgment.
Original petitions are allowed as above. No costs.
[ENTITY], Judge.
[ENTITY], Judge.