Central Administrative Tribunal - Ernakulam
Arya Sree T vs M/O Environment And Forests on 26 September, 2019
1 OA 17-19
Central Administrative Tribunal
Ernakulam Bench
OA No.180/00017/2019
Thursday, this the 26th day of September, 2019.
CORAM
Hon'ble Mr.E.K.Bharat Bhushan, Administrative Member
Hon'ble Mr.Ashish Kalia, Judicial Member
Arya Sree T., aged 28 years
D/o Thrivikraman Potti,
Sreevalsam, NN-99, CP-II/304-TC, Netaji Lane,
Indira Nagar, Peroorkada P.O.,
Thiruvananthapuram-695 005. Applicant
(Advocate: Mr. S.Sujin)
versus
1. Union of India represented by
The Secretary to the Government of India,
Ministry of Environment and Forests,
Paryavaran Bhawan, CGO Complex,
New Delhi-110 003.
2. Under Secretary to the Government of India,
Ministry of Environment, Forest and Climate Change,
Indira, Paryavaran Bhavan, 6th Floor,
Prithvi Block, Jorbag Road,
New Delhi-110 003.
3. Director, Indian Forest Service,
Ministry of Environment and Forests,
Paryavaran Bhawan, CGO Complex,
New Delhi-110 003.
4. The Secretary,
Department of Personnel & Training,
Ministry of Personnel, Public Grievances & Pension,
North Block, New Delhi-110 011.
5. Surjith P.,
'NOBLE', Edavalath Paramba,
Edakkad P.O., Kozhikode-673 005. Respondents
2 OA 17-19
Advocates:
Mr. Thomas Mathew Nellimoottil, Sr.PCGC for R1 to 4.
Mr.P.K.Muhammed for R5.
The OA having been heard on 23rd September, 2019, this Tribunal
delivered the following order on 26.09.2019:
ORDER
By E.K.Bharat Bhushan, Administrative Member This OA is filed by Ms. Aryasree, a successful candidate in the examination held for the Indian Forest Service, 2016 (Batch of 2017) seeking re-allocation of her cadre to Kerala against available 'insider' vacancy. She seeks the following reliefs:
(i) To issue appropriate order or direction calling for the records reading to Annexure A12 communication and quash the same;
(ii) To direct the respondents to allocate the applicant to Kerala Cadre of Indian Forest Service in the vacancy available which was allotted to the 5th respondent Surjith;
(iii) To direct the respondents 1 to 3 not to carry over the existing vacancy to next year until final judgment is delivered.
2. The applicant applied for appointment to the Indian Forest Service (IFS) and was successful in the examination conducted in 2016, obtaining Rank 18 (General Candidate-UR). The list of successful candidates was published on March 21, 2017, a copy of which is available at Annexure A1. Apart from her, two other candidates from Kerala viz., Harikrishnan P.J.(Rank 53-General Category) and Surjith P. (Rank 80-OBC) were also included in the rank list. The candidates were directed to undergo medical examination in order to ascertain mandatory physical fitness. As per the notification for IFS examination, copy of 3 OA 17-19 which is marked as Annexure A2, physical standards for IFS examination, 2016 are as per regulations given in Appendix III of the Rules for the IFS 2016 published in Gazette of India dated 27th April, 2016.
3. In the medical examination conducted on 12th April, 2017, the 5th respondent, Sri Surjith P., was found medically unfit on account of sub standard height (Annexure A3). On his appeal, Sri Surjith P., was again examined by the Central Standing Medical Board at RML Hospital, New Delhi, but the earlier decision was upheld and he was found unfit on account of sub standard height. This was informed to Sri Surjith P., as per Annexure A4.
4. Category wise distribution of vacancies in the States, to be filled by IFS 2017 Batch was published on 19.1.2018 and a copy of the same is at Annexure A5. According to this document, the State of Kerala has four vacancies - with one 'insider' vacancy (to be filled by a candidate whose home State is Kerala) and three 'outsider' vacancies (to be filled by candidates whose home State is not Kerala). The insider vacancy in Kerala was earmarked for SC category. However, as per the 2008 Cadre Allocation Policy, a copy of which is at Annexure A6 and A7, if the insider vacancy is for SC and when there is no SC candidate available, it gets converted to ST insider and when there is no ST candidate available, it gets converted to OBC insider vacancy and if OBC insider is not available, it gets converted into Unreserved (General) category. As there were no SC/ST or OBC candidates available, the vacancy should have devolved on the most eligible candidate from the general list, which was the applicant. But in the cadre allocation list published on 14.3.2018 (Annexure A8), the insider vacancy for Kerala cadre is not shown against anyone. The 5 th 4 OA 17-19 respondent's name was also found omitted from the Cadre Allocation List. Consequently, the applicant was allocated to Maharashtra cadre and the insider vacancy for Kerala remained unfilled despite the availability of the applicant who was an eligible candidate for the same.
5. To a RTI query filed by the applicant, it was made known that the insider vacancy in Kerala was allocated to Sri Surjith P., despite the fact that his name was not shown in the published Cadre Allocation List (Annexure A9). The applicant states that this is in clear violation of IFS Cadre Allocation Rules, 1966 which states that a Cadre officer should be a member of the Indian Forest Service. A copy of IFS Cadre Allocation Rules is produced as Annexure A10. Further it is pertinent to note that even before the publication of category wise vacancy distribution (based on which Cadre allocation is carried out), respondents No.5 had been declared as unfit. Another query filed by the applicant to the Cadre Controlling Authority namely, the Ministry of Environment, Forest and Climate Change elicited the reply that the cadre allocation is done by the Department of Personnel and Training software. No further answer was provided by the Ministry. A representation filed by the applicant through the Course Director of the Indira Gandhi National Forest Academy, brought forth reply dated 20.8.2018 which stated that her request for change of cadre from Maharasshtra to Kerala cannot be agreed to (Annexure A-12).
6. As grounds, the applicant maintains that the Cadre Allocation Policy of 2008 is clear and unambiguous. In the event of SC/ST/OBC candidate not being available, the insider vacancy is to devolve on the available general category 5 OA 17-19 candidate which is the applicant. The respondents have clearly ignored the policy. Further, the cadre allocation list does not contain Sri Surjith's name as he had been disqualified in the physical test. It is not known how under those circumstances it was reported that Sri Surjith has been allotted to the insider vacancy of Kerala Cadre (Annexure A9), which is palpably an incorrect fact.
7. The Rank List published on March 21, 2017 was a list of candidates recommended by UPSC and this cannot be considered as service allocation or order of appointment. It is maintained that it is beyond reason that the entire rank list, without checking the eligibility of the candidates, was taken up for cadre allocation. The respondents have no reply to the apparent incorrect allocation done, except to state that this has been done by "DoPT software". This mindless reliance on a software, which the authorities cannot explain, has been strongly decried by this Tribunal itself in a recent case.
8. A reply statement has been filed on behalf of respondents 1 to 4 and a separate one by respondent No.5. In the reply statement filed on behalf of respondents 1 to 4, the facts of the case are admitted. It is submitted that as per DoPT OM No.13013/3/2012-AIS-I (Pt) dated 1.4.2014 which provided clarification on Cadre Allocation Policy for 2008, the cadre controlling authorities are "to ensure that in future, determination of the cadre of all candidates is done immediately after the service allocation to them and before the commencement of the Foundation Course at Lal Bahadur Shastry National Academy of Administration (LBSNAA), as mandated under the Cadre Allocation Policy (CAP), 2008, so that the determination of the Cadre is not allowed to be influenced by subsequent events". Thus the insider vacancy for 6 OA 17-19 Kerala Cadre was allotted to respondent No.5 through cadre allocation software developed by DoPT, although he was declared unfit by a Medical Board on the ground of substandard height, due to which his name was not included in the cadre allocation notification dated 14.3.2018.
9. In the reply statement filed by the 5 th respondent, it is stated that he has filed a representation dated 20.5.2019 before the Hon'ble Minister of Forest, Environment and Climate Change, stating that in view of the required height having been brought down from 163 cms to 150 cms by Gazette Notification of 19.2.2019 (Annexure R5(a), his claim for inclusion in the IFS was to be reconsidered. He states that despite having been declared unfit, he has not been omitted from the list of successful candidates and as per Annexure A9, he has been allocated to the insider vacancy for Kerala Cadre.
10. Heard Sri S.Sujith, learned counsel for the applicant, Sri Thomas Mathew Nellimoottil, Sr.PCGC for respondents 1 to 4 and Sri P.K.Muhammed for respondent No.5. Sri Sujith drew our attention to the patent injustice that has been allegedly shown to the applicant. She was the highest placed insider candidate, obtaining rank 18 in the National List. Belonging to general category, the insider vacancy originally reserved for SC candidate should have come to her as per the extant policy.
11. With the confusion caused by the inclusion of a candidate who had already been declared unfit in the list, she has been deprived of her rightful claim for serving in Kerala. The respondent No.5 who had approached this Tribunal by filing OA No.859 of 2017, pressing his claim to overcome his medical disqualification, had his case rejected by this Tribunal vide its order 7 OA 17-19 dated 20.2.2018 which has been upheld by the Hon'ble High Court of Kerala and also by the Hon'ble Supreme Court. Thus his claim for inclusion in the IFS itself has been rejected. Under the circumstances, the insider vacancy should have come to the highest placed general candidate which is the applicant. The official respondents have also failed to give any valid reason for rejecting the applicant's claim. They only state that the allocation has been made through DoPT developed software as if that itself is a justification.
12. The Standing Counsel for respondents 1 to 4 had little to add to the contentions put forward in their reply statement, other than to state that the system followed is beyond reproach. Sri P.K.Muhammed, learned counsel for the 5th respondent submitted that the height requirement had been subsequently amended by a Gazette Notification of February, 2019 and he has filed a representation before the Hon'ble Minister of Forest, Environment and Climate Change and no decision may be taken on this OA in favour of the applicant as it would prejudice a decision being arrived at on his representation.
13. We have considered the case in detail. We have also given due consideration to the contentions raised by the respective counsel and perused the documents on record. Admitted facts are that the applicant is a successful candidate for the IFS and stood first among two insider candidates, both belonging to the general category, who were included in the 2017 batch of the IFS. The third candidate - respondent No.5 who was successful in the examination, failed in the physical test having been found to be not in possession of the required height. His appeal was considered by the Central Standing Medical Board which is duly mandated to examine the appeal.
8 OA 17-19 However, the Board also chose to confirm the earlier finding. As a result, he was excluded from the cadre allocation list. But the applicant also found herself not allotted to Kerala, which should have been the logical corollary as per the Cadre Allocation Policy of 2008.
14. Her claim is based on OM 13011/22/2005-AIS(I) brought out by DoPT on 10th April, 2008, copy of which is available at Annexure A6. We have to examine whether she, being a general candidate, with the vacancy for the year being set apart for SC (as per Annexure A5), has a valid claim. It would be useful to reproduce the relevant portion - para 7 of CAP, 2008.
"7. The following shall be the formula for filling up of an insider vacancy belonging to a particular category for which a candidate is not available.
a. When no candidate is available against an Insider SC vacancy in a Cadre, the same shall be filled up by bringing in the senior most insider officer available in the merit list of ST candidates (failing which in the merit list of OBC candidates and in the merit list of the Unreserved candidates in that order) and shifting the SC vacancy of the Cadre to the cadre to which the incoming officer would have normally been allotted against the available outsider vacancy in his category (failing which to the next cadre in alphabetical order in which the outsider vacancy is available).
b. When no candidate is available against an Insider ST vacancy in a Cadre, the same shall be filled up by bringing in the senior most insider officer available in the merit list of SC candidates (failing which in the merit list OBC list and in the merit list of the Unreserved candidates in that order) and shifting the ST vacancy of the Cadre, to the cadre to which the incoming officer would have normally been allotted against the available outsider vacancy in his category (failing which to the next cadre in alphabetical order in which the outsider vacancy is available).
c. When no candidate is available against an Insider OBC vacancy in a Cadre, the same shall be filled up by bringing in the senior most insider officer available in the merit list of ST candidates (failing which in the merit list of SC candidates and in the merit list of the Unreserved candidates in that order) and shifting the OBC vacancy of the Cadre to the cadre to which the incoming officer would have normally been allotted against the available outsider vacancy in his category (failing which to the next cadre in alphabetical order in which the outsider vacancy is available).
9 OA 17-19 Provided that in every such case listed in clause (a), (b) and
(c)above, if insider-physically-disabled-candidate(s) of the relevant community is/are available, such physically disabled candidate (senior most in the merit list) shall be so adjusted. In other words, a physically disabled candidate would have a higher claim for being adjusted as compared with non-physically disabled candidates of his community.
d. When no insider unreserved candidate is available against an Insider Unreserved vacancy available in a Cadre but insider SC/ST/OBC candidate(s) is/are available, such senior most ST candidate (failing which such senior most SC candidate and such senior most OBC candidate in that order) shall be adjusted by shifting out the Unreserved insider vacancy to the next cadre in alphabetical order having outsider vacancy in that category and bringing in an Outsider vacancy of that category from that cadre".
15. Respondent No.5 was not in the reckoning for cadre allotment having been declared 'unfit'. The SC insider vacancy ought to have devolved to General (UR) category, as there was no ST/OBC insider. The confusion in the case has been worse confounded by the order of the respondent Ministry provided to an RTI query, copy of which is at Annexure A9, that states "Consequent on appeal, it is informed that Shri Surjith P has been allocated against an INSIDER vacancy of Kerala cadre in respect of IFS exam- 2016 (batch-2017)". The respondents have no answer as to how such a reply could have been provided when the cadre allocation list does not contain his name and no such averment is made in the reply. Besides, we learn from the reply of the respondent No.5 that he is still pursuing his candidature. Thus the fact mentioned in Annexure A9 is palpably untrue.
16. We also fail to understand how the official respondents can take shelter by merely stating that everything has been done by DoPT software. In the reply statement there is no answer provided to the prayer contained in the OA other 10 OA 17-19 than to offer that it is DoPT software which is responsible. This is particularly difficult to comprehend as the Secretary, DoPT himself is respondent No.4.
17. This Tribunal in OA No.556/2015, while dealing with the issue of cadre allocation of IFS officers, when confronted with the same reply that cadre allotment is done as per DoPT software, had opined thus:-
"Based on these principles the DoPT is reported to have developed a software which is being utilized by DoPT in the allocation of IAS Officers, Ministry of Home Affairs in the case of IPS Officers and Ministry of Environment and Forests in the case of IFS Officers. It would be difficult for this Tribunal without adequate data to either certify the inviolability of the system or declare it as faulty. It is also pertinent to note that Respondent Nos.1 and 2 have merely taken shelter under a declaration that the software used has taken all factors into consideration. Yet the applicant feels deprived on seeing both the annual vacancies going to 'Outsider'. He did file a representation which has been met with a deafening silence from the side of the respondents.
15. We have to state that no system which cannot be justified to the stakeholders is a good system. It is also pertinent to note that the reply statement of Respondent Nos.1 and 2 is brief to the point of being cursory and does not attempt to spell out how both the vacancies allotted to Kerala ended up as 'Outsider'. It is necessary to examine whether in line with the Cadre Allocation Policy in the absence of ST/SC/OBC Outsiders whether the said vacancy would have devolved to the OBC Insider category. We have only the stony silence of the respondents as reply. While the software referred to may indeed be beyond reproach, it cannot remain, to borrow a Churchillian phrase 'an enigma, wrapped in a riddle, inside a mystery'".
18. Leaving aside the claim of respondent No.5 which he has pursued, albeit with little success, the manner in which the official respondents have defended their case is a cause for concern. There is no explanation as to how the cadre allotment policy has been violated nor how an incorrect answer was provided as per Annexure A9. The reply statement is brief to the point of being peremptory.
11 OA 17-19
19. It is stated that as per the Cadre Allotment Policy, determination of cadre is to be done immediately after service allocation to successful candidates and before the commencement of the Foundation Course. This is ostensibly in order to avoid any undue influence being exerted by subsequent events on the determination of cadre. However, what has happened here is that the rank list which was the list of candidates recommended by UPSC was considered for cadre allocation without checking the eligibility of the candidates. Handled in this manner, with persons who are not eligible being included against designated vacancies, this would be a sure way of inviting endless litigation. Apparently, it is necessary for the official respondents to take a good look at the system again and plug this loophole.
20. Based on the facts explained above, we have no hesitation in concluding that the applicant has a valid case. We direct that the applicant is to be allotted the insider vacancy of 2017 for IFS Kerala Cadre. Orders are to be issued within 30 days of receipt of this order. OA stands allowed.
(Ashish Kalia) (E.K.Bharat Bhushan)
Judicial Member Administrative Member
aa.
12 OA 17-19
Annexures filed by the applicant:
Annexure A1: Copy of Rank List published by the Indian Forest Service (IFS)
dated 21.3.2017.
Annexure A2: Copy of the Notification dated 27.4.2016 of Union Public Service
Commission.
Annexure A3: Copy of letter dated 27.6.2017 issued to the 5th respondent by the
Ministry of Environment, Forest & Climate Change.
Annexure A4: Copy of letter dated 7.9.2017 issued to the 5 th respondent by the
Ministry of Environment, Forest & Climate Change.
Annexure A5: Copy of letter dated 19.1.2018 issued to all the Principal
Secretaries (Forest) of the Cadres/Joint Cadres of Indian Forest Service by the Ministry of Environment, Forest & Climate Change.
Annexure A6: Copy of office memorandum dated 10.4.2008 issued by the Ministry of Environment, Forest & climate Change.
Annexure A7: Copy of office memorandum dated 1.4.2014 issued by the Ministry of Environment, Forest & Climate Change.
Annexure A8: Copy of Notification dated 14.3.2018 issued by the Ministry of Environment, Forest & Climate Change.
Annexure A9: Copy of order dated 30.5.2018 issued by the Ministry of Environment, Forest & Climate Change.
Annexure A10: Copy of the IFS Cadre Allocation Rules, 1966. Annexure A11: Copy of representation dated 28.5.2018 submitted by the applicant before the Under Secretary to the Government of India, Ministry of Environment, Forest & Climate Change.
Annexure A12: Copy of order dated 13.8.2018 issued by the Ministry of Environment, Forest & Climate Change.
Annexure A13: Copy of the relevant pages of the notification dated 27.4.2016 issued by the Ministry of Environment, Forest & Climate Change.
Annexure A14: Copy of the Frequently Asked Questions given in the DoPT web site.
Annexure A15: Copy of the page No.53 of F.No.17015/02/2016-IFS.II. Annexure A16: Copy of the judgment dated 20.6.2018 in OP(CAT) No.111 of 2018.
Annexure A17: Copy of the order of the Hon'ble Supreme Court in SLP No.1340/2019.
Annexures filed by the respondents:
Annexure R5(a): Copy of the Gazette Notification No.58 dated 19/02/2019- F.No.17011/01/2019-IFS-II showing that height is reduced from 163 cms to 150 cms throughout the country.
Annexure R5(b): Copy of the representation dated 20.5.2019 filed before the Ministry of Environment, Forest & Climate Change.
Annexure R5(c): Copy of the representation dated 20.6.2019 filed before the Minister of Environment, Forest & Climate Change.