Central Administrative Tribunal - Jaipur
Khushboo Lather vs M/O Personnel,Public Grievances And ... on 11 October, 2021
i QA. No, 223/2019 CENTRAL ADMINISTRATIVE TRIBUNAL JAIPUR BENCH, JAIPUR Original Application No. 223/2019 with Misc. Application No. 539/2019 Order reserved on : 05.10.2021 As Date of order: jh, / 0.2! CORAM: HON'BLE MR. DINESH SHARMA, MEMBER (A) HON'BLE MRS. HINA P. SHAH, MEMBER (J) Khushboo Lather d/o Dr. Shri M. L. Lather, aged around 26 years, 301 , Officers Campus Extension, Saryu Marg, Opposite Mangal Vihar, Sirsi Road, Jaipur-302012. Selected in exam conducted by UPSC for AIS and Central Services. ..Applicant (By Adv: Shri Amit Mathur) Versus 1. Union of India Represented through its Secretary, Ministry of Personnel, Public Grievances Pensions, Department of Personnel & Training, North Block, New Delhi . 2. Shri Kanishak Kataria S/o Shri S.M. Kataria, r/o House No. B2/506, Chitrakoot Nagar, Jaipur- 302021 (Raj. ) ....Respondents (By Adv: Shri Anand Sharma for respondent No. 1 Shri Siyaram Sharma for respondent No. 2) Order Per: Dinesh Sharma, Member (A)
In this Original Application, the applicant has prayed for the following reliefs:
"(i) The original application filed by the applicant may be allowed and for appointment to Indian Administrative Service/ Indian Police Service of the candidates from Civil Services Examination 2018, para 9 of the Office Memorandum dated 05.09.2017, may be declared as illegal and ultra vires being violative of Article 14 of the Constitution of India to the extent it provides that a General Category Candidate appointed in merit has right to be treated as a 'Reserved Category Candidate' for allocation of cadre';
(ii) The respondent- Union of India may be directed to give appointment and allocation of the cadre of the candidates selected from Civil Services Examination, 2018 appointed to All India Service from Civil Services Examination 2018 and while giving appointments to them, their States/Joint Cadres may also be allotted to _ them, In continuance to that the applicant has no objection on migration of any such candidate to reserved category for purpose of cadre allocation, However, vacancy so created in unreserved category may be made available to unreserved candidate next in merit;
(iii) Any other order which this Hon'ble Tribunal may deem fit in the facts and circumstances of the present case, may kindly be passed in favour of the applicant."
2. In so many words, what the applicant wants is that Shri Manish Kataria (who is later joined as respondent No.
2) , belonging to SC category, allotted IAS on the basis of his top rank as an unreserved candidate, should not be allotted Rajasthan Cadre of the IAS, on the basis of his preferences for Rajasthan amongst reserve category Le ae 3 candidates. She claims that such consideration, on the basis of paragraph 9 of the guidelines regarding Cadre Allocation Policy (CAP) of 2017 (Annexure-A/1), is wrong. The applicant has also challenged para 9 of these guidelines as illegal and unreasonable stating that a person who has got the allotment of service as an unreserved candidate, should not be given another benefit, the allocation of a preferred cadre, on ground of his higher rank amongst reserve candidates. The applicant has also prayed (in para 1 above) that if the respondent No. 2 is to be considered as a reserve category person for cadre allotment, he should be counted against the same category for the purpose of service allocation also, thus leaving one more post of IAS available for unreserved candidates.
3, The respondents have denied the claim of the applicant. It gives an overall picture of how the services and cadres are allotted to all India service officers under various provisions of the Constitution/Acts, Rules and guidelines adopted by the Union of India and States. It is stated that the paragraph 9 of the CAP-2017 is reasonable and it brings into operation what was decided by the Hon'ble Apex Court in Uol VS Ramesh Ram Civil Appeal No. 4310-4311 of 7010 [arising out of SLP (C) Nos.13571- 72 of 2008], The policy making is a preserve of those entrusted with policy making and the courts/Tribunal ous. te.208/2042 should not interfere with this prerogative unless there are strong and valid reasons. The intention behind the rule is to ensure that a reserve category candidate does not suffer any disadvantage just because he has secured a higher position in the merit. The allocation of service and the cadre to respondent No. 2 is correctly done in accordance with the rules and guidelines. The applicant is at Rank 98 under unreserved category. She could not be allocated any service as she had not expressed preference for any service, except for IAS at preference No. 1. Since 91 unreserved vacancies of IAS are allocated upto Rank- 92, she could not be allocated to any service. There are already higher ranked candidates, in unreserved category, above her who could not get IAS because of exhausting all the unreserved vacancies of the IAS. The, Original Application, therefore deserves to be dismissed.
4. The matter was finally heard on 05.10.2021. Shri Amit Mathur arguing on behalf of the applicant, stated that giving another benefit in the matter of cadre allotment, while the person had already been benefitted in the matter of service allotment, because of his higher rank was not correct. The person cannot be considered against an unreserved vacancy and still claim the benefit of being from the reserved category. The paragraph 9 (of CAP-
2017) does that and, therefore, should be struck down as arbitrary and unreasonable and against the general A yatie 5 scheme of balance amongst outsiders/insiders, reserved and unreservedcategory candidates in every state. The learned counsel cited and produced a compendium of rulings in support of his arguments . The compendium contains the following decisions:
a) Judgement pronounced by the Hon'ble Supreme Court in Civil Appeal No. 2550 of 2010 in C.M. Thri Vikrama vs. Avinash Mohanti & Ors. Dated 12.07.2011
b) Judgement pronounced by the Hon'ble Supreme Court in Civil Appeal No. 3745-3754 of 2020 in the State of Tamil Nadu & Ors Vs. K.Shobana Etc. Etc. dated 05.03.2021.
b) Judgement pronounced by the Hon'ble Supreme Court in Civil Appeal No. 12310 of 1996 etc. in Union of India (UOI) Vs. Mhathung Kithan and Ors. dated 18.09.1996.
c) Judgement pronounced by the Hon'ble Supreme Court in Civil Appeal No. 3877 of 2019 in the Union of India Vs. Anu Kumari & Anr dated 11.04.2019.
d) Judgement pronounced by the Hon'ble High Court of Delhi in W.P. (C) No. 109/2019 and other connected matters Himanshu Kumar Verma and Ors vs. Union of India and Ors. dated 03.05.2019.
5, The learned counsels for the respondents No. 1 and 2 justified the action regarding allotment of service to the respondent No. 2 and the home cadre allocation to him on account of his being an SC candidate as being perfectly in accordance with paragraph 9 of the guidelines. These guidelines were very reasonable and in accordance with the spirit that a meritorious reserve candidate should not be at a disadvantage in any way just because of his higher standing in merit.
6. We inquired the learned counsel for the applicant about what was the locus standi of the applicant in questioning the service and cadre allocation done for the respondent No. 2. The learned counsel responded that the applicant, being 9g" in the rank list, and an insider, had a chance to be given Rajasthan cadre in the IAS, in case respondent No. 2 did not get it.
7. We have gone through the pleadings, heard the arguments at length and also gone through the entire compendium of rulings produced by the learned counsel for the applicant. We are unable to find anything that supports the applicant's case. In the present case, the respondent No. 2 secured the highest rank and was allotted IAS. He belongs to Rajasthan and has asked for Rajasthan cadre, his home state, as his first preference. There is no vacancy of IAS in the Rajasthan Cadre for the insiders in the Unreserved candidates. However, there is one vacancy for the insiders in the reserved category. The paragraph 9 of the guidelines, which the applicant has challenged as illegal, arbitrary or unreasonable, comes to his rescue here. He is allotted Rajasthan Cadre since he is an insider, belongs to the SC and is much higher ranked than any other reserve candidate (in fact, even higher chan anyone else)who might haveput a claim above that of the respondent No. 2. The paragraph 9 of the OM is reproduced here:
7QA. No, 223/2019 "g A reserved category candidate selected on general merit standards shall be eligible for allocation against the available unreserved vacancy as per his merit and preference. But if he cannot be allocated against such vacancy, for he is lower in rank as compared with other general category candidates, he shall be considered for allocation as per his merit and preference against the available vacancy of his category."
8, It is very clear from this rule that it is intended to avoid any reserve category candidate from suffering any disadvantage in cadre allocation just because he secured a higher rank. If this rule did not provide for such consideration of his preferences, it would lead to an absurdity of a lower ranked candidate of a reserved category getting his preferred cadre while the higher ranked person in the same category gets thrown out. We do not find anything arbitrary or unjust in this rule. The I/c for the applicant argues that a person cannot be given double benefit of his rank. It should be either for the allotment of service or for the allotment of cadre. We fail to understand the logic behind this reasoning other than that of the selfish interest of the applicant that she might, hypothetically speaking, be the beneficiary if this strange logic (or rather the lack of it ) was accepted. The applicant has not asked for any prayer for herself in the Original Application and has only sought for cancellation of cadre allocation for the respondent No. 2. Her alternate prayer for treating the respondent No. 2 as reserve 4 \ \ 8 category, also does not expressly reveal what she wants, through that, for herself. We cannot grant any prayers of this type in which the applicant does not even reveal her locus standi and we have to gather it or guess it from asking during the stage of arguments. We are sorry to state that if the intention of the applicant is to get, at 9gt rank, a benefit at the cost of denial of a legitimate benefit to a_ higher ranker, just because the higher rank (according to her) has already received a benefit by way Of allotment of a better service, We cannot accede to such requests. The argument of the learned counsel for the applicant that the rank should not be considered in the allocation of cadres does not find any support from any rule or logic. It is an objective criteria and it is most logical e higher weightage to the preferences given by a to giv person who stands higher in merit. Denying this benefit to a reserve category person only because he has been considered as unreserved while counting the number of persons to be filled for any service against any quota, would not only be unreasonable, but would also go against the constitutional mandate of positive discrimination in favour of the weaker classes.
9, We have also gone through all the rulings contained in the compendium produced py the learned counsel of the applicant and we do not find even a single one that may apply on the facts of this case. In Avinash Mohanty's Case | 9 QA. No. 223/2019 x court found the cadre allocation ken calculation of vacancies case (supra) deals with the issue of Ss vertical reservations in filling of backlog yacancies- it cannot be applied to the facts of this case even by very stretched and analogous considerations. In ynion of India VS Mhathung Kithan and Ors. case, the issue was that of carrying forward past insider vacancies, an issue entirely unrelated to the present case. In Union of India Vs Anu Kumari' case, the Hon'ble Supreme Court found no error in not allowing the respondent therein any preference since she had not filled her preference in time.
In Himanshu Kumar Verma Vs Union of India, the Hon'ble High Cou freshly made according to merit while ignoring certain misleading entries in filling the forms of preferences. Thus we do not find any decision, which can be applied on the the present case even by way of an analogy ese decisions can be cited to support justification of when yacancies are wrongly determined, or where there is 3 general error in determining preferences. Some of these decisions also make it clear, as very strongly argued by the learned counsel for the applicant, that cadre allocation is not a matter of right. it certainly Is not and that applies rt of Delhi directed the cadre allocations to be ; 10 2.4, No, 23/2019 equally, both to the applicant and the respondent No. 2.
Amongst the two, the respondent No. 2 certainly has a better claim than the applicant because of his higher standing in the merit, and this higher standing cannot become his disadvantage, especially because of the clear provision under paragraph 9 of the guidelines, which we find apparently very re asonable and correct.
10. The Original Application , thus, has no merit and is, therefore, dismissed. No order as to costs.
In view of the order passed in the Original
11. In Application pending misc. applications are disposed of as PP , | infructuous. f) ~ (Dinesh Sharma) ~~~ Loe Shah) (Hina P. Member (A) Member (J) lVv~