Central Administrative Tribunal - Delhi
Vaibhav Shrivastava vs Union Of India on 29 April, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 836/2011 CP 288/2011 MA 745/2011 New Delhi this the 29th day of April, 2011 Honble Mr. Justice V.K.Bali, Chairman Honble Mr. L.K.Joshi, Vice Chairman (A) Vaibhav Shrivastava, IAS (P), S/o Shri K K Shrivastava, Aged about 29 years, Address: G-13, PWD Colony, Byron Bazar,Raipur, Chhattisgarh. Applicant (By Advocate Shri M. Shoeb Alam ) VERSUS 1. Union of India, Through the Secretary, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training (DoPT), North Block, New Delhi. 2. Union of India Through Cabinet Secretary, Cabinet Secretariat, North Block, New Delhi-110001 3. State of Chhattisgarh, Through its Chief Secretary, State Government Secretariat, Raipur (Chhattisgarh) 4. Tamboli Ayyaj Fakirbhai, Arman, 78/A, Shivkrupa Society, Ranling Road, Shirur, District Pune-412210. . Respondents (By Advocate Shri Hilal Haider for Respondents 1 and 2 in OA, Shri Atul Jha counsel for respondent No. 3, Shri R.N.Singh for respondent No.1 in CP and Shri A.K.Behera for respondent No.4) O R D E R Mr. L.K.Joshi, Vice Chairman (A):
Shri Vaibhav Srivastava, the Applicant herein, appeared for the Civil Services Examination (CSE), 2008. He belongs to Chattisgarh State. He was allotted to the West Bengal cadre of the IAS. The fourth Respondent, Shri Tamboli Ayyaj Fakirbhai, belonging to Maharashtra State, who had also appeared for the same examination, was allocated to Nagaland cadre. The grievance of the Applicant is that when the Respondents have increased the number of vacancies in Chattisgarh Cadre from 5 to 6, he should have been allocated to that cadre, as per the guidelines for cadre allocation, as an insider candidate. Instead, the fourth Respondent, who had been allocated to the Nagaland cadre, was transferred to the Chattisgarh Cadre. The order dated 21.01.2011 of the Respondent, Department of Personnel and Training (DOP&T) has been assailed in this OA, seeking the following reliefs:
A. Issue a writ of Certiorari or any other appropriate writ, quashing the Notification dated 21.01.2010, bearing No. 13013/2/2009-IS (1)/Part issued by Respondent No.1 to the extent that it appoints the respondent No. 4 to the State of Chhattisgarh; AND B. Issue a writ in the nature of Mandamus or any other appropriate writ directing the Respondent No.1 to reallocate strictly in accordance with the IAS Rules, 1954 and the cadre allocation policy annexed at Annexure-B, in terms of the increased vacancies/seats for IAS officers in the 2009 batch as is evident from the notification of 21-01-2011.
C. Pass such other and further orders as this Honble Tribunal may deem fit and proper in the aforesaid facts and circumstances.
2. Pointing to the cadre allocation policy enunciated on 10.08.2008, the learned counsel for the Applicant would contend that clause 4 of the said policy provides for the following formula for allocation between outsider and insider to a cadre. Clause 4 has been reproduced below:
4. The insider and outsider vacancies in a cadre shall be determined on the basis of the insider-outsider roster with points as follows: 0-1-0-0-1-0 and so on, so as to facilitate the maintenance of the ratio of 1:2 between the insiders and the outsiders. It is, however, clarified that depending on the actual filling of the insider vacancies, the ratio between insiders and outsiders in a cadre at any point of time may, however, be less than 1:2. There would be the following insider-outsider rosters for each cadre: first, for determining the total insiders and outsiders vacancies in the cadre; second, for determining the OBC insider/outsider vacancies and the SC/ST insider/outsider vacancies; and third, for determining SC insider/outsider vacancies and ST insider/outsider vacancies. In the first step, the total insider/outsider vacancies in a cadre shall be determined on the basis of the first roster for the cadre. In the second step, the OBC insider/outsider vacancies and the SC/ST (as one block) insider/outsider vacancies shall be determined on the basis of the second roster for the cadre. And in the last step, the SC insider/outsider vacancies and the ST insider/outsider vacancies shall be determined on the basis of the third roster for the cadre. The UR insider/outsider vacancies for the cadre shall be determined by subtracting the total reserved insider and the total reserved outsider vacancies from the total insider vacancies and the total outsider vacancies respectively. The accounting in the rosters (for total vacancies as well as category-wise vacancies) shall be on the basis of actual filling. Clause 6 ibid reads thus:
6. A candidate shall be allotted to his Home cadre or any other cadre, as the case may be, on the basis of his merit, preference and vacancy available at his turn in his category. It was submitted that at the time of allocation of cadres to the candidates there were 5 vacancies in the State of Chattisgarh, out of which there were 4 vacancies for allocation to outsider candidates and there was one vacancy for an insider candidate. The first available insider candidate from Chattisgarh was Ms. Kiran Kaushal, who had the All India Rank of 3. The Applicant was at All India Rank of 74. Therefore, it was submitted by the learned counsel for the Applicant that he was not allocated to the Chattisgarh Cadre as an insider. By notification dated 18.01.2010 five vacancies were filled up as follows:
S.No. NAME AIR STATUS
1. Kiran Kaushal 3 General Insider
2. Priyanka Shukla 73 General Outsider
3. Avnish Sharma 77 General Outsider
4.
Samir Vishnoi 79 General Outsider
5. Saurabh Kumar 293 Outsider SC The Applicant was allocated to West Bengal cadre and the fourth Respondent to Nagaland cadre in this order dated 18.01.2010. The contention of the learned counsel for the Applicant is that under the cadre allocation policy the ratio between outsider and insider is worked out as outsider: insider: outsider: outsider: insider: outsider. Therefore, the cycle of O:I:O:O:I:O has to be continuously followed in allocation of cadre to outsider and insider. In such a system, where there are six vacancies to be filled up in any cadre, two have to be necessarily insiders. It was urged that once the Respondent, DOP&T, increased the strength of the cadre in Chattisgarh from 5 to 6 for the CSE, 2008, the slot should have gone to the Applicant, who was an insider of Chattisgarh Cadre. Moreover, he was one rank above the fourth Respondent in the merit list. His All India Rank was 74, whereas the rank of the fourth Respondent was 75. The learned counsel for the Applicant would contend that the Respondents have violated the cadre allocation policy of 2008 by having less than 2 insider candidates among the six persons to whom Chattisgarh Cadre was allocated. Aggrieved by the above, the Applicant submitted a representation to the Secretary, DOP&T, on 01.02.2011, bringing to her notice the violation of cadre allocation policy of 2008. It was further argued that the impugned notification had been wrongly issued under Rule 5 (1) of the Indian Administrative Service (Cadre) Rules, 1954 because under this rule cadre was allocated to a candidate, whereas in the instant case the fourth Respondent was transferred from Nagaland to Chattisgarh. Inter-state cadre transfer could not be done under this rule, contended the learned counsel.
3. The learned counsel for the official Respondent, DOP&T, clarifying the background of re-allocation of cadre to the fourth Respondent informed that at the time of making allocations of cadres to candidates of CSE, 2008 it was found that the fourth Respondent had not given any preference for any cadre. His preference sheet for allocation of cadres was missing from his dossier. While allocating cadres, a view was taken that the fourth Respondent had not given any choice for any cadre and it was decided to deal with allocation of cadre to him as per clause 5 of the cadre allocation policy of 2008, which provides for allocation of cadre to candidates who have not given any preference. The clause 5 has been extracted below:
5. The candidates shall give their choice in the order of their preference from amongst the various State cadres including his Home cadre/state and if a candidate does not give any preference for any of the cadre (s), it will be presumed that he has no specific preference for those cadre(s). Accordingly, if he is not allotted to any one of the cadres for which he has indicated preference, he shall be allotted along with other such candidates in the order of rank to any of the remaining cadres, arranged in alphabetical order, in which there are vacancies in his category after allocation of all the candidates who can be allotted to cadres in accordance with their preference. Accordingly he was allocated to Nagaland cadre. Immediately thereafter, the fourth Respondent made a representation to the Respondent, DOP&T, that he had actually given his cadre preference at the time of interview to the UPSC. The matter was reconsidered and the UPSC was consulted. However, his preference sheet could not be located. It was in these circumstances that in order to ensure that no injustice was done to the fourth Respondent, it was decided to take the preferences indicated by him along with his representation into cognizance and to reallocate cadre to him by creating supernumerary post only to accommodate him. The preferences given by the fourth Respondent were run in to the computer and it was found that as per his preferences he would be allocated to Chattisgarh cadre. The learned counsel would further urge that cadres had already been allocated to other candidates and re-allocation to all the candidates at this stage would have led to domino effect, leading to administrative chaos. It is for this reason that supernumerary vacancy was created in Chattisgarh cadre without disturbing the allocation made to others. It was further decided that one vacancy would be increased in the intake of CSE, 2010 for Nagaland cadre. The supernumerary post created in Chattisgarh cadre was adjusted against future vacancies. The learned counsel for the Respondent, DOP&T, would contend that any cadre could have been allocated to the fourth Respondent depending on his preferences and it was only in the peculiar circumstances of this case that the cadre happened to be Chattisgarh, the home state of the Applicant.
4. The learned counsel for the fourth Respondent would contend that it was only because of the preference sheet of the Respondent being misplaced that he was allocated to Nagaland cadre under clause 5 of the cadre allocation policy of 2008. The learned counsel would point out that in the letter dated 07.03.2009 calling the Applicant for personality test it had been clearly mentioned in paragraph 7 (VI) that the candidate should fill up the preference sheet for cadre allocation. It was urged that he had accordingly filled up his preference sheet for cadre allocation. When the list of allocation of cadre was uploaded on 18.01.2011 on the website of the Respondent, DOP&T, the fourth Respondent immediately noticed that persons lower in rank than him had been allocated to the cadres of their choice. Without any delay he preferred a representation dated 22.01.2010 and handed over it personally to the Secretary, DOP&T at New Delhi. The supernumerary post was created only to rectify the mistakes committed because of the preference sheet of the Respondent had been misplaced.
5. In reply, the learned counsel for the Applicant would contend that the case was squarely covered in favour of the Applicant by the judgement of the Honourable Supreme Court in Gudur Krishna Rao and others V. Sutirtha Bhattacharya and others, (1998) 4 SCC 189. This case arose before the Supreme Court in appeal against an order of Hyderabad Bench of this Tribunal. The Tribunal had quashed two orders dated 15.12.1993 and 16.12.1993 of the Government of India, inter alia, on the ground that the notifications in question amending the Indian Administrative Service (Fixation of Cadre Strength) Regulations contravened Rule 9 of the Indian Administrative Service (Recruitment) Rules, 1954. The appellants before the Honourable Supreme Court were officers promoted to the IAS from the post of Deputy Collectors and the respondents were the directly recruited IAS officers. The respondents had filed OA number 118 of 1994 before the Tribunal challenging the above mentioned notifications of the Government of India. In the case of the appellants there was a background of dispute about their seniority because they had joined the service on different dates, but by an order of the State Government their date of joining was deemed to be the date on which the person with highest merit had joined. One of the appellants had joined on 13.12.1978, but his date of joining was made to be 18.01.1979. After a series of litigations the Tribunal decided that all these officers, who had joined in 1978 and had completed eight years of service on 01.01.1987, should be considered for promotion to the IAS. Pursuant to the directions of the Tribunal, a Selection Committee was constituted and on considering the case of the appellants along with similarly situated officers, included 14 of them in the revised Select List. Thus the Select List of 1987 comprised 26 officers initially selected and 14 officers selected additionally. The State Government created 14 supernumerary posts to accommodate these 14 officers, who had been brought into the Select List of 1987 on review. The directly recruited IAS officers then filed an OA before the Tribunal contending that the proposal of the State Government for creation of 14 additional supernumerary posts in the IAS was without jurisdiction. The application was disposed of with directions to the State Government to decide the representation of the directly recruited officers. Meanwhile, the Central Government issued the notification dated 15.12.1993 amending the IAS (Fixation of Cadre Strength) Regulation for the State of Andhra Pradesh and 14 supernumerary posts were created. By another notification dated 16.12.1993, the 14 officers were appointed to the IAS of the Andhra Pradesh cadre. The Tribunal quashed the above notifications. The Honourable Supreme Court, inter alia, framed the following questions:
1) The Notification dated 15-12-1993 whether can be held to be a Rule though nomenclatured as Regulation amending the Cadre Strength Regulation?
2) Whether it is possible to construe the Notification and Rule 9 of the Recruitment Rules harmoniously and can the notification be allowed to operate notwithstanding the limitation provided in Rule 9 of Recruitment Rules for promotion of the State cadre officers to the Indian Administrative Service? These questions were answered thus:
7. So far as the first question is concerned, the notification dated 15-12-1993 on the face of it is an amendment to the Cadre Strength Regulation, 1955 and by the said notification 14 posts against Item 3 to be filled up by promotion and selection in accordance with R. 8 of the Recruitment Rules have been increased for the period indicated in the notification. The obvious necessity for increasing the cadre strength so far as Item No. 3 of the Schedule of the Cadre Strength Regulation is to accommodate the 14 State Civil Service Officers who had been excluded from the purview of consideration while drawing up the Select List for the year 1987 and in whose favour the Tribunal has issued certain directions. The Cadre Strength of the Indian Administrative Service for each of the States is fixed by the Regulation which regulation is framed in exercise of power under sub-rule (1) of Rule 4 of the Cadre Rules. This being the position the notification increasing the number of posts in respect of Item 3 of the Schedule relating to Andhra Pradesh as well as the increase of the total authorised strength of the cadre in Andhra Pradesh is nothing but an amendment to the Regulation in question, and therefore, notwithstanding the level of notification that the same has been issued under sub-section (1) of Section 3 of the Act read with sub-rule (2) of Rule 4 of the Cadre Rules and Rule 3 of the Residuary Rules the same cannot have the status of an Act or the Rule as contended by Mr. Salve, the learned counsel appearing for the appellants. On a plain grammatical meaning of the words used in the notification being given as well as the object for which the notification has been issued if borne in mind the only conclusion that can be arrived at is that the said notification is a Regulation amending the Cadre Strength Regulation and called the 12th Amendment Regulation, 1993.
8. So far as the second question posed by us is concerned it is no doubt a cardinal principle of construction that when Rules and Regulations have been framed dealing with different aspects of the conditions of service of the employees the courts would attempt to make a harmonious construction and try to save the provisions and not to strike down the same. But where it is not possible even with doing some amount of violence to the language used in the notification to give a harmonious construction, then necessarily the court will have no other option than to set aside a notification if the said notification contravenes any provisions of the Act or the Rule or is otherwise constitutionally invalid. Bearing in mind the aforesaid principle of construction it appears to us that the impugned amended Regulation cannot be harmoniously construed with Rule 9 of the Recruitment Rules. Under the Recruitment Rules recruitment to the Indian Administrative Service can be made by competitive examination; by selection of persons from among the Emergency Commissioned Officers and Short Service Commissioned Officers of the Armed Forces of the Union; by promotion of member of a State Civil Service; and by selection, in special cases from among the persons who hold in a substantive capacity gazetted posts in connection with the affairs of a State and who are not members of a State Civil Service. So far as the promotion of members of a State Civil Service is concerned the procedure is provided in Rule 8 of the Recruitment Rules. Under the said Rule 8 the Central Government on the recommendation of the State Government concerned and in consultation with the Public Service Commission makes recruitment to the service by promotion from amongst the members of the State Civil Service in accordance with Regulation to be framed by the Central Government. Under Rule 9 of the Recruitment Rules, there is a prohibition that the number of persons recruited under Rule 8 in any State and at any time will not exceed 33 1/3 per cent of the number of posts shown against Items 1 and 2 of the cadre in relation to the State. The Cadre Strength Regulation framed by the Central Government in exercise of power under sub-rule (1) of Rule 4 of the Cadre Rules categorically fixes the number of posts borne and the strength and composition of the cadre for each of the States and so far as Item 3 dealing with the promotion by selection under Rule 8 of the State Civil Service Officers are concerned it has to be 33 1/3 per cent of Items 1 and 2 of the Schedule. That being so, any Regulation merely increasing the number of posts in Item 3 without any corresponding increase of Items 1 and 2 on the face of it would be violative of the very mandate of the Regulation and at any rate it would violate Rule 9 of the Recruitment Rules. The Regulation itself having been framed in exercise of power under sub-rule (1) of Rule 4 of the Cadre Rules and Rule 8 having provided that the recruitment by promotion to the service from amongst the members of the State Civil Service has to be made in accordance with the Regulation and Rule 9 of the said Recruitment Rules having provided for a maximum of such promotion, the impugned notification increasing the number of posts only for State Civil Service Officers to be promoted contravenes Rules 8 and 9 of the Recruitment Rules as well as contravenes the mandate of the Regulation itself. Having considered the provisions of the Recruitment Rules, the Cadre Rules and the Cadre Strength Regulation we have no hesitation to come to the conclusion that the impugned notification dated 15-12-1993 contravenes Rule 9 of the Recruitment Rules and under the scheme of the Act, Rules and Regulations it is not possible to sustain the notification in question by giving any harmonious construction to the provisions. The Tribunal, therefore, was fully justified in striking down the notification dated 15-12-1993.
6. We have given our utmost consideration to the rival contentions and perused the record placed before us carefully.
7. We must note at the outset that the judgement of Gudur Krishna Rao (supra) has no relevance in the facts and circumstances of this case. The issues considered in the aforesaid judgement of the Honourable Supreme Court are quite distinct and different from the issues in this OA. Moreover, there is no challenge in this OA to the order by which the supernumerary post was created. The issue is simple. The preference sheet for allocation of cadre filled up by the fourth Respondent was misplaced. The Respondent, DOP&T, while allocating cadres considered that the fourth Respondent had not given any preference and allocated him to Nagaland cadre. When the mistake was discovered, it was rightly decided to rectify the same by considering his choice of cadres and deciding as to which cadre would have been allocated to him had the preference sheet been available at the time of cadre allocation. It turned out perchance to be Chattisgarh cadre. If at this time the whole exercise of cadre re-allocation had been taken up in respect of all the candidates, it would have led to administrative chaos, as it would have resulted in change of cadres of several candidates. The candidates had already joined their State Cadres, had had their training in those States, learned the language of the State of their allocation and had settled down in their work. We are of the considered opinion that in the peculiar facts and circumstances the Respondent, DOP&T, took sensible decision of creating a supernumerary post in Chattisgarh cadre and re-allocated the Applicant to that cadre. We are unable to agree with the argument of the Applicant that re-allocation of cadre could not have been made under Rule 5 (1) of the Indian Administrative Service (Cadre) Rules, 1954. Rule 5 (1) ibid has been extracted below:
5. Allocation of members to various cadres- (1) The allocation of cadre officers to the various cadres shall be made by the Central Government in consultation with the State Government or the State Government concerned. Cadre allocation had already been made when the fourth Respondent gave his representation to the Secretary, DOP&T. The Applicant had already been allocated to West Bengal cadre. The re-allocation concerned solely the fourth Respondent. In view of this the Rule 5 (1) ibid would without doubt be attracted. It is not a case of transfer of the Applicant from one cadre to another. It is a case in which the mistaken allocation of cadre has been rectified by making re-allocation of cadre to the fourth Respondent. Had there been six vacancies to begin with in Chattisgarh cadre, the Applicant would surely have had a claim for allocation to that cadre as an insider candidate. However, the sixth post has been created specifically for the purpose of rectifying the mistake made in allocation of Nagaland cadre to the fourth Respondent assuming that he had not given any preference for allocation of cadres. In view of this the Applicant cannot have any grievance because he has been allotted to West Bengal cadre on the basis of the vacancies available at the time of allocation of cadres to the candidates. Creation of a supernumerary post for rectifying the mistake would not give him a cause of action.
8. In the light of the above discussion we are of the considered opinion that no irregularity has been committed in re-allocation of cadre to the fourth Respondent and it does not call for any interference from the Tribunal. The OA is dismissed. There will be no orders as to costs.
9. A Contempt Petition number 288 of 2011 had also been filed by the Applicant alleging that the Respondents had disregarded the directions of this Tribunal in staying the order dated 21.01.2011 till the next date of hearing, by its order dated 25.02.2011. Regardless of the above order the Respondents had allowed the fourth Respondent to join the State of Chattisgarh by order dated 28.02.2011 of the Government of Chattisgarh. However, since the prayer in the OA has been disallowed, it would not be necessary to consider the CP. In the result CP is closed and notices are discharged.
( L.K. JOSHI ) ( V.K. BALI ) Vice Chairman (A) Chairman /dkm/