Case: Union of India and Anr Vs. Ms. A. Shainamol, IAS and Anr

2. The applicant is a candidate seeking appointment to the All-India Services in pursuance of the Civil Services Examination-2006(For short, the CSE-2006). The applicant was successful as she found her name at Serial No. 20 of the candidates selected by the Union Public Service Commission(For short, the Commission). She belongs to Muslim community and also to the Other Backward Class(For short, the OBC). 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(For short, the Tribunal). 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 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:margin-left:81.9pt>	 								Sl No.            									Rank            									Name      of     the            			Candidate            									Category            									Home            			State            									Cadre            			Allotted            									Allotted as            													1            									4            									PRASANTH N            									General            									Kerala            									Kerala            									Insider            													2            									6            									VYASAN R            									General            									Kerala            									Nagaland            									Outsider            													3            									13            									NILA MOHANAN            									General            									Kerala            									Assam            			Meghalaya            									Outsider            													4            									17            									REMYA      MOHAN            			MOOTHADATH            									General            									Kerala            									Gujarat            									Outsider            													5            									20            									SHAINAMOL A            									OBC.            									Kerala            									Himachal            			Pradesh            									Outsider            						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.margin-left:81.9pt>	6. The High Court, in the writ petitions against the order of the Tribunal, inter alia held that the Kerala government had submitted 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(For short, 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. It was also found that Rule 5(1) of the Indian Administrative Service (Cadre) Rules, 1954(For short, the Cadre Rules) 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).

Reasoning:
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.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 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 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 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 ] .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. (1992) Supp. 3 SCC 217 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 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.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 India Union of India, 2002 SCC On Line Del 1000 = (2002) 99 DLT 749 (DB). 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 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. Sahs 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 xxx15. The decision of the Apex Court in Ritesh R. Sahs 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.…. 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 xxx17. …..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.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 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 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 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. (1994) 4 SCC 711    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 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.46. The Full Bench of the Jurisdictional High Court in a judgment reported as Nakul Deo Singh v. Deputy Commandant 1999 SCC OnLine Ker 366 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 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.