* THE HONOURABLE SRI JUSTICE J.CHELAMESWAR AND THE HONOURABLE SRI JUSTICE GODA RAGHURAM + WRIT PETITION NO. 8072 OF 2004 %THURSDAY, THE THIRD DAY OF FEBRUARY, TWO THOUSAND FIVE # G.Srinivas Rao s/o G.Venkata Swamy, Aged about 31 years, now working as Assistant Superintendent of Police, West Tripura District, Tripura. Petitioner Versus $ The Union of India rep. by its Secretary to Government, Ministry of Home Affairs, New Delhi and others. Respondents ! Counsel for the petitioner : Sri Nooty Rama Mohana Rao ^ Counsel for the respondent No.1: Sri V.T.Gopalan, Additional Solicitor General of India, instructed by Mr. B.Narasimha Sharma, Additional Central Government Standing Counsel. Counsel for the respondent No.2: Government Pleader for Services-II Counsel for the respondent No.3: None appeared Counsel for the respondent No.4: Mr. Madhav Pannikar, Advocate, for Mr. Bhaskar Poluri, Advocate < Gist : >Head Note: ? 1) (1994) 6 SCC 38 2. (1992) 3 SCC 217 3. (1996) 10 SCC 562 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE THIRD DAY OF FEBRUARY TWO THOUSAND AND FIVE PRESENT THE HON'BLE MR JUSTICE J.CHELAMESWAR AND THE HON’BLE MR JUSTICE GODA RAGHURAM WRIT PETITION NO : 8072 of 2004 Between: G.Srinivas Rao s/o G.Venkata Swamy, Aged about 31 years, now working as Assistant Superintendent of Police, West Tripura District, Tripura. ..... PETITIONER AND 1. The Union of India rep. by its Secretary to Government, Ministry of Home Affairs, New Delhi. 2. The State of Andhra Pradesh rep. by its Secretary to Government, General Administration Department, Secretariat, Saifabad, Hyderabad. 3. The State of Tripura rep. by its Chief Secretary to Government, Agartala. 4. Sri M.Stephen Raveendra, IPS, s/o M.B.Ranjeeth (Retd. ASP), Film Nagar, C/o Director General & Inspector General of Police, Government of Andhra Pradesh Saifabad, Hyderabad. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a writ, order or direction more particularly one in the nature of Writ of Certiorari: (a) Call for the records relating to and connected with the order dated 09.01.2004 in O.A. No. 155 of 2001 on the file of the Central Administrative Tribunal and quash and set aside the same; (b) Consequently quash and set aside the order of allotment of the Writ Petitioner to the Manipur-Tripura Cadre passed by the Government of India, Ministry of Home Affairs, dated 21.09.1999; and (c) Direct the respondents to allocate the petitioner forthwith to the cadre of the state of Andhra Pradesh, if necessary by replacing the 4th respondent. For the Petitioner: Mr. Nooty Rama Mohana Rao, Advocate For the Respondent No.1: Mr. V.T.Gopalan, Additional Solicitor General for India, instructed by Mr. B.Narasimha Sharma, Additional Central Government Standing Counsel For the Respondent No.2: Government Pleader for Services-I, For the Respondent No.3: None appeared For the Respondent No.4: Mr. Madhav Pannikar, Advocate, for Mr. Bhaskar Poluri, Advocate. The Court Made the Following : :: ORDER :: (Per Hon’ble Sri Justice G. Raghuram) Heard Sri Nooty Rama Mohana Rao, learned counsel for the petitioner, Sri V.T.Gopalan, Additional Solicitor General for India instructed by Sri B.Narasimha Sharma, learned Additional Central Government Standing Counsel for the 1st respondent, the learned Government Pleader for Services-I for the 2nd respondent and Sri Madhav Pannikar, Advocate for Sri Bhaskar Poluri for the 4th respondent. The substantive grievance of the petitioner is as regards his allocation to the Manipur-Tripura Joint Cadre of the Indian Police Service. Urging the said grievance, in particular on the ground that his allocation to the Manipur-Tripura Joint Cadre while allocating the 4th respondent to the AP Cadre is illegal, the petitioner filed OA No. 155 of 2001 before the Hyderabad Bench of the Central Administrative Tribunal (CAT). By the order dated 9.1.2004 the OA was dismissed. The said order is assailed in this writ petition. Chronology of facts, in brief :- A. The petitioner and the 4th respondent appeared for the Civil Services Examination 1998 (CSE 1998) conducted by the UPSC. The 4th respondent belongs to Other Backward Classes (OBC) category. While the petitioner secured rank No.95, the 4th respondent secured rank No.133 in the over all merit list. B. While undergoing training at Mussoorie, the 1st respondent addressed a communication dated 21.10.1999 to the petitioner offering him an appointment to the IPS on the basis of his qualifying in the CSE 1998 and intimating his allotment to the Manipur-Tripura Joint Cadre. The petitioner was asked to convey his acceptance of the offer for appointment within the specified time. The 1st respondent by the notification dated 26.10.1999 allocated various State cadres to the 36 candidates selected to the IPS on the basis of the CSE 1998. While the petitioner was allocated to the Manipur-Tripura Joint Cadre, the 4th respondent was allocated to the AP Cadre. C. On 1.11.1999 the petitioner conveyed his acceptance of the offer, to the 1st respondent, in response to the 1st respondent’s letter dated 21.10.1999. D. On 20.10.2000 the petitioner addressed the 1st respondent requesting cadre transfer/cadre reallotment to the AP Cadre. In this letter he stated that two unavoidable and unexpected vacancies had arisen in the AP Cadre even before his allotment, this fact was communicated to the 1st respondent by the AP Government and that the AP Chief Minister had also represented the mater to the concerned Union Minister requesting review and reallotment of the petitioner to the AP Cadre, vide a letter dated 30.12.99. The petitioner also referred to his personal circumstances such as his dependent brother’s illness which requires his presence in AP and requested transfer or reallotment to the AP Cadre under the available powers under the IPS (Cadre) Rules 1954 (for short ‘the Cadre Rules). E. On 31.10.2000 all the IPS probationers of the 52nd RR (1999) batch including the petitioner and the 4th respondent were intimated movement orders on completion of their 42 weeks basic training informing that they will stand relieved from the National Police Academy, Hyderabad, on 31.10.2000 and they should undergo further attachments as specified in the said order. F. The petitioner filed OA No. 155 of 2001 before the CAT for a direction to the 1st respondent to allocate him to the AP Cadre. By the judgment dated 25.7.2001 the CAT dismissed the OA. G. The petitioner filed WP No. 17902 of 2001 before this court against the order of the CAT dated 25.7.2001. A Division Bench of this court by the judgment dated 22.4.2003 allowed the writ petition, set aside the order of the CAT and remanded the issue to it to consider whether in the context of data being available as to the allotment of the several categories of persons to various States cadres, general vacancies could be decreased mechanically in a State merely because alphabetically a particular State was the first State. This court also observed that all other questions raised in the writ petition are kept open for consideration by the CAT. H. The CAT again considered OA No.155 of 2001 and by the judgment impugned in this writ petition, rejected the petitioner’s application. The case of the petitioner is that the single vacancy in the IPS.RR arising in Andhra Pradesh is an “insider general vacancy” and had been irrationally converted by the 1st respondent to an “insider OBC” vacancy by allocating the 4th respondent thereto. According to the petitioner since he is a general candidate and obtained the higher rank of 95 as against rank 133 of the 4th respondent in the over all merit list of CSE 1998 and as the sole vacancy in the AP Cadre for the said recruitment year was allocable to a general insider candidate i.e., an open vacancy allocable to a candidate hailing from the State of Andhra Pradesh, on all relevant and applicable parameters, the petitioner ought to have been allocated to the AP Cadre and not the 4th respondent. The stand of the 1st respondent :- A. In the CSE 1998 there were a total number of 36 vacancies in the various IPS cadre (from various States). In accordance with the applicable percentage of reservations (on which aspect there is no contest between the parties herein), 10 vacancies were reserved for the OBC category candidates and 5 for SC/ST category, as per the 200 points model post based roster introduced in the IAS/IPS from the CSE 1998, in view of the directions of the Supreme Court in another case. B. The cadrewise vacancies to be filled up in each IPS cadre from the CSE 1998 were distributed as per the prescribed percentage for each category as under: SL Cadre Total Vacancies OBC rounded 27% off OBC SC/ST rounded 22.5 off SC/ST General 1 Andhra Pradesh 1 .27 0 .225 0 1 2 Assam Meghalaya 1 .27 0 .225 0 1 3 Bihar 1 .27 0 .225 0 1 4 Gujarat 3 .81 1 .675 1 1 5 Haryana 1 .27 0 .225 0 1 6 Himachal Pradesh 1 .27 0 .225 0 1 7 J & K 3 .81 1 .675 1 1 8 Karnataka 3 .81 1 .675 1 1 9 Kerala 2 .54 1 .450 0 1 10 Madhya Pradesh 1 .27 0 .225 0 1 11 Maharashtra 1 .27 0 .225 0 1 12 Manipur Tripura 4 1.08 0 .900 1 2 13 nagaland 2 .54 1 .450 0 1 14 Orissa 2 .54 1 .450 0 1 15 Punjab 1 .27 0 .225 0 1 16 Rajasthan 4 1.08 1 .900 1 2 17 Sikkim 1 .27 0 .225 0 1 18 Tamil Nadu 1 .27 0 .225 0 1 19 AGMU 1 .27 0 .225 0 1 20 Uttar Pradesh 1 .27 0 .225 0 1 21 West Bengal 1 .27 0 .225 0 1 Total 36 8 5 23 C. On the distribution of the vacancies as above, the number of vacancies to be filled up by the general candidates came to 23 as against the available 21, while the number of OBC vacancies came to 8 as against 10 vacancies allocable to this category as per the applicable percentage of reservations. Therefore it became necessary that two vacancies slotted as “general” (as per the above table) be diverted to OBC. The advice of the Ministry of Personnel, Public Grievances and Pensions in the Department of Personnel and Training was solicited. The 1st respondent was advised by the aforesaid Ministry that since the figures relating to the last 5 years (in the IPS), are not available (in respect of OBC candidates) they were increasing/decreasing the vacancies in respect of OBC category, in such exigencies, at the time of approximation for a particular year in a category and that adjustment is being done by allocating OBC vacancy in State cadres alphabetically. Consequent on such advice, the 1st respondent converted one general vacancy each in the AP and Assam-Meghalaya cadres as OBC vacancy, to make up the shortfall in this category as had resulted in the adding of fractions. D. For the CSE 1998 category-wise vacancies, to be filled up in the various IPS State cadres, were determined on 28.5.1999, allocation of cadres was approved on 15.10.1999 and notified on 27.10.1999. Neither on 28.5.1999 when the category-wise vacancies to be filled up in various IPS cadres from the 1998 CSE were determined nor on 15.10.1999 when the allocation of cadres was finalised were the figures for all the previous 5 years available with the 1st respondent. E. The principles of cadre allocation are set out in a DO letter dated 30/31-5- 1985 which provides for distribution of category-wise vacancies in each cadre as per their prescribed percentage. These principles which are in the nature of executive instructions are normally adhered to strictly by the 1st respondent. However, at times, due to administrative exigencies, such as the necessity of rounding off of fraction/approximation to the nearest point or where a mismatch occurs between the 30 point vacancy roster and the 30 point reservation roster, a deviation from the above executive instructions becomes inevitable. F. The contention that as a result of the allocation of the 4th respondent to the AP State cadre, the OBC reservation in the State in the IPS would increase to more than 30% as against the 27% permissible, is misconceived. The IPS being an All India Service, the reservation policy is applied at the All India Level and not at the State cadre level. G. Approximation of vacancies on the basis of added/neglected fractions in various States on alphabetical basis is resorted to only in exigencies where the added/neglected fractions in two or more States cadres is the same. Normally approximation of vacancies is done by diverting the general vacancy from the State cadre where the added or neglected fraction is the highest. In respect of CSE 1998, the added/neglected fraction in as many as 13 State cadres, including Andhra Pradesh and Assam- Meghalaya was the same i.e., 0.27%. Therefore, as per the advice of DOP&T, the general vacancies of Andhra Pradesh and Assam-Meghalaya were converted to OBC vacancies, as alphabetically these two State cadres were high up in order. Contentions of the 4th respondent :- A. The writ petition requires to be dismissed for non-joinder of necessary parties. The reliefs sought by the petitioner in OA No.155/01 as well as the substantive relief sought in this writ petition, if granted, would require a review of the entire process of cadre allocation pursuant to introduction of OBC reservations, right from the inception of such reservations commencing from the 1995 Batch of IPS. Consequently, cadre allocations of over 500 officers of IPS, would potentially face disruption. The vacancy in Manipur-Tripura cadre pursuant to the 1998 CSE i.e., 1999 IPS.RR Batch, is allocable to a “general outsider” candidate. The answering respondent belongs to the OBC category and was recruited as such. He must therefore be posted in an OBC vacancy, perhaps in a different State. The candidate allotted to such State will again have to be accommodated elsewhere and so on. This would result in a chain reaction and result in chaos. In the circumstances all the officers likely to be effected by the relief sought by the petitioner, at least all the officers belonging to the 1999 IPS.RR Batch should be impleaded. As this was not done, the writ petition requires to be dismissed. B. As the policy and instructions of the Department of Personnel and Training, Government of India (DOPT) are being questioned, the DOPT ought to have been impleaded as a party, as it was the appropriate department competent to explain the rationale underlying its policy and instructions. C. The allocation of cadre to the members of the IPS is under the Cadre Rules. As per Rule 5(1) of the Cadre Rules the allocation of cadre officers to various cadres shall be made by the Central Government in consultation with the State Government or State Governments concerned. None of the statutory provisions governing recruitment to the IPS, per se provide for any reservation in the matter of allocation of cadres to the members of the IPS. The reservation policy is followed at the recruitment level. In allocation of cadres it is adequate if the broad percentage of reservations is considered at each State level. The mathematical certainty of the percentage of reservations for each of the reserved groups at the level of each State or Joint cadre is neither always possible nor legally required. In the circumstances, the petitioner’s contention that the allocation of the answering respondent to the AP State cadre resulted in exceeding the OBC reservations in the State of AP, is legally misconceived. The petitioner’s claim involves an exercise which is neither pragmatic nor always possible, in view of the complexity involved in implementing the plural administrative policy choices of the Union Government, viz., accommodating the various reservations State and Joint Cadre-wise, allocating persons hailing from a particular State to other States in the interests of national integration and administrative efficiency and such other choices. For this reason the power and discretion of making the allocation of cadres vests in the Government of India. In view of the decision of the Supreme Court in Union of India and Others vs Rajiv Yadav IAS and Others() a candidate selected to the IPS has a right to be considered for appointment to the IPS but no right to allocation of a cadre of his choice or to his home State. As a member of an All India Service he is liable to serve in any part of India. D. The “outsider insider outsider” formula evolved as a policy in the matter of allocation of cadres is but an administrative instruction and constitutes a guideline. It is not a part of the statutory framework requiring strict and inflexible compliance. Such guidelines do not constitute a legally enforceable right. E. The practice of approximation of category-wise vacancies in various cadres to be filled through allocation of cadres to candidates selected for appointment to All India Services, on their qualifying in the CSE, on the basis of relevant data of the previous 5 years, is being followed by the Union of India in respect of SC/ST category since the 1985 CSE. Therefore for the purpose of uniformity and non-discrimination, in respect of OBC category also the Union of India is following the same practice. F. The 27% reservation for OBC candidates commenced from the CSE 1994 i.e., 1995 IPS.RR Batch. As relevant data of the previous 5 years i.e., from 1995-99 (inclusive) was not available with the 1st respondent at the time of cadre allocation, the allocation was made by following the most appropriate and rational principle in the circumstances viz., readjustment of vacancies by alphabetical identification of cadres. Demonstrably the relevant data for preceding the 5 years, including of the 1999 Batch, was not available to the 1st respondent nor was such data withheld by the 1st respondent from the DOPT. As the recruitment to the 1999 Batch of IPS.RR was itself the 5th recruitment year (recruitment with OBC reservations commenced from the 1995 IPS.RR Batch), 5 years data could not have been available at the time of cadre allocation of the 1999 Batch IPS.RR candidates. G. The policy of approximation by following the alphabetical order of the States in the Union, would not always result in the approximation being limited only to States higher up in the alphabetical order. This has happened for the 1999 IPS Batch since the total number of vacancies available for regular recruitment was meagre(36). Earlier batches, as is apparent from the list furnished by the petitioner himself, were much larger – 98 vacancies in the 1995 batch; 99 in the 1996 batch; 96 in the 1997 batch and 84 in the 1998 batch, as against only 36 in the 1999 batch. Wherever vacancies available for recruitment to an All India Services is large in a given year the need for approximation is also proportionally greater and in such event States even lower down in the alphabetical order would be considered for administering the approximation principle. In the circumstances the petitioner’s contention to the contrary is patently misconceived. H. The petitioner having received the offer of appointment to the IPS vide the letter of the 1st respondent dated 21.10.1999, and having conveyed his acceptance of the offer vide his letter dated 1.11.1999, fully conscious that his allocation was to the Manipur-Tripura Joint Cadre, is estopped from challenging the cadre allocation. Even the petitioner’s representation dated 20.10.2000 is for cadre transfer/cadre reallotment and the said representation does not assert his claim on the basis of excess OBC representation in the Andhra Pradesh Cadre. His claim is only on the basis of personal circumstances. I. Since OBC reservations are effectuated from 1995 batch and it is in the 1999 batch that the petitioner and the answering respondent were recruited, it is too short a time frame to assess the percentage of reserved candidates in each State and Joint cadres and to permit a rational conclusion as to the inappropriateness of following the alphabetical principle in making the approximations. J. In the totality of circumstances including the chaotic effect it would have on the cadre allocations of a large number of IPS officers in the entire Republic; the fact that a mere 4 to 5 years (since the 1995 batch) is too short a period for judging the rationality of the approximation principle based on the alphabetical method and in the absence of any mala fides on the part of the 1st respondent in making cadre allocations, either pleaded or established, no case is made out for grant of relief in the writ petition. Analysis of the case : From the CSE 1978 the allocation of direct recruits to the All India Services was being made following the “limited Zonal preference system”. For this purpose all the cadres/joint cadres in the country were divided into zones, candidates were given an opportunity to indicate their preference zone-wise and for two cadres in each zone and the allocations were being made duly considering the ranks and preferences of the candidates subject to allocation of vacancies in each cadre between insiders (hailing from the particular State) and outsiders (not hailing from the particular State). Such limited Zonal preference system was resulting in a very minimal movement of candidates from one part of the country to another across several States. Even such limited inter regional movement of candidates was taking place only in respect of candidates obtaining much lower ranks in the over all merit list. This system also resulted in “outsiders” getting allocated mostly to neighbouring States. To remedy the above perceived deficiencies, from the CSE 1984 (1985 Batch), the Ministry of Personnel and Training in the Government of India decided to revert to the roster system which was followed for allocation during 1966-77 CSEs but with certain modifications. The refined scheme in this regard was reiterated in the letter dated 30/31-5-1985 addressed by the Ministry of Personnel and Training to the Secretary, Department of Forest and Wild Life, Government of India. The broad principles of the revised system of allocation read as under: 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 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 ration 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 Tami Nadu, Union Territory, Uttar Pradesh and West Bengal. ii. Since the number of