Central Administrative Tribunal - Hyderabad
Atul Singh, Ips vs Indian Police Service on 28 September, 2021
OA No.139/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH : AT HYDERABAD
OA/021/00139/2016
Date of CAV : 13.09.2021
Date of Pronouncement :28.09.2021
Hon'ble Mr. Ashish Kalia, Judl. Member
Hon'ble Mr.B.V.Sudhakar, Admn. Member
Atul Singh, IPS., S/o Sri Ram Pratap Singh,
Aged : about 47 years,
Occ : Chairman, State Level Police Recruitment Board and
Inspector General of Police (Training),
O/o Director General of Police,
Andhra Pradesh, Hyderabad - 500 004. ...Applicant
(By Advocate : Mr. J. Sudheer)
Vs.
1.Union of India,
Represented by its Under Secretary
To Government of India,
Ministry of Personnel, P.G and Pensions,
Department of Personnel and Training (DoPT),
3rd Block, Lok Nayak Bhavan, Khan Market,
New Delhi.
2.Union of India, Ministry of Home Affairs,
Represented by its Secretary, Government
Of India, New Delhi.
3.State of Andhra Pradesh,
Represented by its Chief Secretary,
General Administration Department,
A.P. Secretariat, Hyderabad.
4.State of Telangana,
Represented by its Chief Secretary,
General Administration Department,
Telangana Secretariat, Hyderabad. ....Respondents
(By Advocates: Mrs.K.Rajitha, Sr. CGSC for R-1
Mr.V.Vinod Kumar, Sr. CGSC for R-2
Mr.M.Balraj, GP for State of AP, R-3
Mr.P.Ravinder Reddy, Spl Counsel for State of
Telangana, R-4
---
Page 1 of 63
OA No.139/2016
ORDER
(As per Hon'ble Mr. B.V.Sudhakar, Admin. Member) Through Video Conferencing:
2. The OA is filed challenging the allocation of the applicant to the Residual State of A.P (for short RSAP) instead of State of Telangana, in the cadre of Indian Police Service (for short IPS)
3. Brief facts of the case are that consequent to the enactment of the A.P. Reorganization Act 2014 (for short-Act 2014) bifurcating the composite State of Andhra Pradesh into the State of Telangana and the RSAP on 2.6.2014, Central Govt constituted an Advisory Committee, under the Chairmanship of Sri Pratyush Sinha, IAS (Retd.) (for short PS Committee) on 28.3.2014 under Section 80(i) of Act -2014, to recommend guidelines and allocation of All India Officers (for short AIS) officers among the 2 States in a fair and equitable manner. Applicant, a Direct Recruit (for short DR) IPS Officer of 1995 batch from the unreserved category (for short UR) whose Home State is U.P, though opted for the State of Telangana, was allotted to RSAP tentatively on 22.8.2014, 10.10.2014 and finally on 5.3.2015 without taking into consideration the representation made on 26.8.2014/23.10.2014. Aggrieved the OA is filed.
4. The contentions of the applicant are as follows:
i. Applicant was allotted to the composite State of A.P under IPS Cadre Rules under DR-UR category, based on merit and option.Page 2 of 63 OA No.139/2016
ii. As per Section 76 (v) of the Act-2014 the allocation of AIS officers to the 2 States should not overrule the provisions of the AIS rules, 1954.
iii. Options were called from officers of the other services/State Services under Section 77 of the Act-2014 without any such scope for the AIS officers under section 76 of the said act.
iv. Before receiving any feedback from the stakeholders, allocation guidelines and tentative allocation of IPS officers were simultaneously posted in the web site on 22.8.2014, thereby trespassing the terms of reference to the PS committee constituted under the Act-2014.
v. In respect of State Services, Kamalnathan Committee draft guidelines were approved by GOI and thereafter distribution of State officers was undertaken.
vi. Inclusion of P.K.Mohanty, Chief Secretary of the composite State of A.P., who had indirect interest, as Member of the Committee is improper. The guidelines were prepared keeping officers in view.
vii. Discrimination in allowing swapping the IPS officers was conspicuously evident.
viii. Representations submitted as advised in case of any grievance in regard to cadre allocation were unanswered, making the exercise of seeking representations, if any, an eye wash ix. When the 3rd tentative allocation was issued on 26.12.2014 a fresh window of opportunity to swap within the same pay band was permitted, only to favour IAS officers since no IPS/IFS officers got the benefit from the said clause.Page 3 of 63 OA No.139/2016
x. U.C. Agarwal committee recommendations were not considered.
5. Respondents in the reply statement state that composition of AIS Cadres and allocation of AIS officers among the 2 States has been undertaken as per Sections 76 & 80 of the Act -2014. Under Section 80 of the Act-2014, PS Committee was formed with the Chief Secretary of the Composite State of Andhra Pradesh along with the cadre controlling authorities of 3 AIS services viz., IAS/IPS/IFoS services as Members of the Committee, in order to recommend the initial strength and composition of the 3 All India Services as well recommend their allocation among the 2 States to ensure that the distribution is fair, transparent and reasonable.
Applicant is a DR-UR category officer of the 1995 IPS batch. Among the 62 UR outside officers to be distributed, only 8 opted for RSAP and the rest for Telangana and therefore, the system of roster blocks was adopted with 27 blocks formed of size varying from 2 to 5, in view of the fact that 27 IPS officers have to be allotted to the State of Telangana due to bifurcation. The allocation of the applicant was done as per PS Committee guidelines and with the approval of the competent authority. Competent authority, while approving the provisional allocation, has permitted swapping with another officer in the same category having the same grade pay. Reserved community officers were allowed to swap in the roster block because their number was less and in case of DR-Outsiders it was confined to the batch.
Applicant is not eligible to get swapped with officers named, against the guidelines. Though U.C.Agarwal and PS Committees have been formed to recommend distribution of AIS officers on bifurcation of the States concerned, it is not necessary that the guidelines are to be similar. The Page 4 of 63 OA No.139/2016 applicant's contention that the Committee did not carry out its functioning in a fair and equitable manner is incorrect. Fairness and equitableness would not mean one that is suitable to the applicant but against guidelines.
Further, the pleading of the applicant that Article 14 has been violated is improper since all laws cannot be general in character, and Article 14 permits reasonable classification like IPS officers form a homogeneous group but there is a reasonable classification among them with IPS officers promoted from the State Police Service, DR insiders/outsiders etc. forming different groups. The committee has framed guidelines so that unequal treatment is not met out to equals. The applicant waited for the OAs to be disposed which indicates that it is not his grievance which has led to the filing of the OA but the decision of Tribunal influenced him to do so. The Act -2014 has not violated AIS 1956 Act and that in terms of Article 312 of the Constitution applicant is liable to serve the Union or the State to which he has been allotted as per rules framed by DOPT, thereby he cannot have a grievance that the State sought by him has not been allotted. AIS Act deals with recruitment and service conditions of AIS officers and Act 2014 is concerned with the distribution of AIS officers among the 2 States. The allocation of the applicant to RSAP is as per guidelines and the applicant without pointing out any deviation of the application of the guideline to his case, has made an unreasonable argument that others got relief from the Tribunal and therefore, he need to. The judgment of the Hon'ble Apex Court in Mallikarjuna Rao & Ors v State of A.P (1990) 2 SCC 707 was cited to drive home the point that the Tribunal should not interfere in policy matters. The applicant is seeking relief by comparing his own set of principles with those of PS Committee which were applied to each of the Page 5 of 63 OA No.139/2016 stakeholder. As per Hon'ble Apex Court judgment in Union of India v Rajiv Yadav (1994 (6) SCC 38), the selected candidate has at best the right to be considered for appointment to IAS but has no right to be allotted to a cadre of his choice or his home state.
R-4 (State of Telangana) filed an affidavit informing that the reply statements of R-1 (DOPT) & R-2 (Ministry of Home Affairs) may be considered as they are the competent authorities in regard to cadre allocation. R-3 (State of Andhra Pradesh) has not filed any reply statement despite giving ample opportunities to do so. However as the case pertains to the year 2016 and similar cases have already been adjudicated upon by this Tribunal, we have taken up this case for adjudication in the presence of the learned counsel representing all the parties.
Applicant has filed a rejoinder reiterating that being a sole member from 1995 batch in the DR-UR Outsider category he had no scope for swapping. Applicant claims that he has filed the OA in Jan-2016 whereas OAs of many other IAS/IPS officers were allowed in March 2016 and therefore, it is not correct to state that he filed OA after the judgment in OA 1241/2014 was pronounced. The response of the respondents has been general without answering the specific contentions made. MA 595/2016 was filed in June 2016 along with a copy of the judgment rendered in March 2016 in favour of the employees, seeking similar relief on the same analogy and there is no response to the contentions made in the MA in the counter filed in June 2017 by the respondents. Hence, in the teeth of non-
rebuttal, OA be allowed.
6. Heard the Ld. Counsel and perused the pleadings on record.
Page 6 of 63 OA No.139/20167. I. Basics of the dispute The dispute is about not allotting the applicant to the State of Telangana in the IPS cadre. The genesis of the dispute is rooted in the implementation of the provisions of the Act-2014 providing for the distribution of AIS officers among the newly formed States of Telangana and RSAP. The dispute revolves around Sections 76, 80 of Act-2014 and Terms of Reference made to the PS Advisory Committee instituted for recommending guidelines and distribution of officers among the 2 States.
Under Section 80 of the Act-2014, the PS Committee was formed to recommend to the Central Govt. the composition of the AIS cadres and guidelines for the allocation of AIS officers to the State of Telangana and RSAP. It would be beneficial to extract the said references for a better appreciation of the dispute on hand. The Tribunal has dealt with identical issue in OAs 1241/2014, 422/2016, 1037/2019, 230/2020 & 174/2020 and spoke its mind out. However, there are certain facts which we felt, need to be dealt in depth in the interest of justice and hence, we would be traversing the length and breadth of the dispute to arrive at a justifiable conclusion.
A. Section 76 of the Act -2014
76. (1) In this section, the expression "State cadre"--
(a) in relation to the Indian Administrative Service, has the meaning assigned to it in the Indian Administrative Service (Cadre) Rules, 1954;
(b) in relation to the Indian Police Service, has the meaning assigned to it in the Indian Police Service (Cadre) Rules, 1954; and
(c) in relation to the Indian Forest Service, has the meaning assigned to it in the Indian Forest Service (Cadre) Rules, 1966.
(2) In place of the cadres of the Indian Administrative Service, Indian Police Service and Indian Forest Service for the existing State of Andhra Pradesh, there shall, on and from the appointed day, be two separate cadres, one for the State of Andhra Pradesh and the other for the State of Telangana in respect of each of these services.Page 7 of 63 OA No.139/2016
(3) The provisional strength, composition and allocation of officers to the State cadres referred to in sub-section (2) shall be such as the Central Government may, by order, determine on or after the appointed day.
(4) The members of each of the said services borne on the Andhra Pradesh cadre immediately before the appointed day shall be allocated to the successor State cadres of the same service constituted under sub-section (2) in such manner and with effect from such date or dates as the Central Government may, by order, specify.
(5) Nothing in this section shall be deemed to affect the operation, on or after the appointed day, of the All-India Services Act, 1951, or the rules made thereunder.
B. Section 80 of the Act -2014
80. (1) The Central Government may, by order, establish one or more Advisory Committees, within a period of thirty days from the date of enactment of the Andhra Pradesh Reorganisation Act, 2014, for the purpose of assisting it in regard to--
(a) the discharge of any of its functions under this Part; and
(b) the ensuring of fair and equitable treatment to all persons affected by the provisions of this Part and the proper consideration of any representations made by such persons.
(2) The allocation guidelines shall be issued by the Central Government on or after the date of enactment of the Andhra Pradesh Re-organisation Act, 2014 and the actual allocation of individual employees shall be made by the Central Government on the recommendations of the Advisory Committee:
Provided that in case of disagreement or conflict of opinion, the decision of the Central Government shall be final:
Provided further that necessary guidelines as and when required shall be framed by the Central Government or as the case may be, by the State Advisory Committee which shall be approved by the Central Government before such guidelines are issued.
C. Terms of reference to the PS committee.
"2. The terms of reference for the Committee would be as follows:-
(i) To make suitable recommendations regarding determination of the cadre strength of the three All India Service (AIS), namely, IAS, IPS & IFOS of the two successor States namely Andhra Pradesh and Telangana on the basis of objective and transparent principles to be evolved by the Committee within one week from the date of this notification.
(ii) To consider and take a view on any representation(s)/comment(s) made by the stakeholder (s) with reference to such determination of cadre strength and principles, after the same is placed on the respective website of the three AIS for a period of one week and thereafter make suitable recommendations regarding the issues that may be raised through these representations, within a period of one week.
(iii) To recommend objective and transparent criteria for the allocation/distribution of personnel belonging to the three All India Services, i.e. IAS, IPS & IFoS; borne on the existing cadre of Andhra Pradesh between the two successor States namely Andhra Pradesh and Telangana within three weeks from the date of this notification.Page 8 of 63 OA No.139/2016
(iv) To further subdivide the total authorized strength of the three All India Services as approved by the Competent Authority after final recommendation of the Committee as mentioned at Para (ii) above, into Direct Recruitment Quota and Promotion Quota wise; Unreserved, OBC, SC and ST wise and Insider and Outsider wise for the two successor States namely Andhra Pradesh and Telangana arising out of the existing State of Andhra Pradesh immediately after approval of the determination of cadre strength, as mentioned at Point No. (ii) above or approval of the criterion for allocation/distribution by the Competent Authority, as mentioned at Point No.(iii) above, whichever is later.
(v) To recommend specific individual allocation/distribution of AIS officers in accordance with the allocation guidelines as approved by the competent authority, within one week after completion of the further sub-division of authorized cadre strength, as mentioned at Point No. (iv) above.
(vi) To consider any representation(s) made by an All India Service Officer (s) who is/are affected by such recommendations regarding individual allocation/distribution, as mentioned at point No.(v) above after the same is placed in the websites of the respective Cadre Controlling Authority of AIS, for one week, inviting representations, in order to ensure a fair and equitable treatment to all and make appropriate recommendations, if any, within one week from the closure of accepting representations from stakeholders."
II. Legitimate Expectation belied.
As can be seen from the above, Section 80 (b) of the Act-2014 envisages fair and equitable treatment to all persons affected and the proper consideration of any representations made by such persons. When it comes to the Terms of Reference, the Committee has to consider and take a view on any representation(s)/comment(s) made by the stakeholder(s) with reference to such determination of cadre strength and principles, after the same is placed on the respective website of the three AIS for a period of one week and thereafter make suitable recommendations regarding the issues that may be raised through these representations, within a period of one week. Against these two core aspects, the decision of the respondents, if evaluated would indicate the approach adopted and as to whether the process of decision making was legally sound. The applicant, as seen from the facts, was allotted to RSAP tentatively on 22.8.2014 along with the Page 9 of 63 OA No.139/2016 release of guidelines by the PS Committee, the same day. In the reply statement, we found no reasons forthcoming explaining as to why the PS committee/ competent authority have acted against the terms of reference.
Obviously, any action beyond the brief will have the consequences of being branded as a Jurisdictional error. The same aspect in a similar issue was dealt with by this Tribunal in OA 1037/2019 dated 26.04.2021, wherein it was held, as under, that without enabling the stake holders to participate in the process of laying down guidelines as was envisioned in the Terms of reference, releasing the memo of allocation of IPS offices on 22.8.2014 cannot be held to be fair and equitable, as was required under Section 80 (1)
(b) of the Act -2014. We continue to hold the same stand in the instant case too.
The committee as per clause (ii) above, was expected to consider and take a view on any representation received from the stake holders with reference to the cadre strength and principles after the guidelines were placed on the website for a period of one week and thereafter make suitable recommendations in a week's time. Without doing so the Committee went ahead and published the guidelines on 22.8.2014 and also released the first tentative list of distribution of AIS officers on the same day. The respondents have not explained in any of their pleadings as to why the list was released without taking any feedback on the purported guidelines and thereby acted against the terms of reference in such haste. The respondents having induced a legitimate expectation among the AIS officers including the applicant that any representation made in regard to the Principles of distribution proposed by the Advisory Committee would be gone into and thereafter, the guidelines would be freezed for implementation. Taking a decision contrary to the said expectation is unfair.
IV. In this regard, we intend to observe that in all State actions, the State has to conform to Article 14 of the Constitution of which non-arbitrariness is a vital factor. A public authority can use powers for public good which casts a duty on the said authority to act fairly and to adopt a procedure which is fairplay in action, as was made evident by Section 80 (1) (b) of the Act - 2014. Due observance of this obligation raises a legitimate expectation in every AIS officer of being treated fairly in regard to the decision making process in distribution of the officers amongst the 2 States. To satisfy this requirement of non-arbitrariness in State action, it is necessary to give due weight to the legitimate expectation of the AIS officers likely to be affected by the decision or else that unfairness in the Page 10 of 63 OA No.139/2016 exercise of the power may amount to an abuse of power, affecting the very bona fides of the decision. In the given case, the respondents were to circulate the guidelines and seek views from the stake holders and thereafter commence the process of allocation. The legitimate expectation of the AIS officers and that of the applicant of at least their views would be solicited has been belied. Therefore, the decision to release the guidelines and the tentative allocation on 22.8.2014 is exposed to challenge on the ground of arbitrariness. Although the word tentative in releasing the first allocation was used but the mind of the respondents has been revealed about the respect they have to their own commandment. While stating what we did, we clarify that the rule of law does not eliminate discretion in the exercise of power, but provides for control of its exercise by judicial review. Though the legitimate expectation of an AIS officer to be part of the guideline framing process as per the terms of reference, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary. This is how the requirement of due consideration of a legitimate expectation forms part of the principle of non- arbitrariness, a necessary concomitant of the rule of law. An administrative decision of the public authority satisfying the requirement of non-arbitrariness would only withstand judicial scrutiny.
The object of inviting suggestions from the stake holders as per the terms of reference to the P.S. committee was to ensure a fair, objective and transparent allocation of cadres to the AIS officers and in the instant case IPS officers among the newly formed States. Involving the stake holders in the process of formulating the guidelines is in Public Interest, since the AIS officers are involved in the affairs of the State by holding key positions dictating the destiny of the State in matters of security. Retaining or modifying the recommendations of the P.S. committee after consulting the stake holders would have been a fair proposition to all concerned but not by not involving them, albeit envisaged in the terms of reference. We find that the respondents have failed to uphold the principle of legitimate expectation by releasing the guidelines and the allocation list on 22.8.2014 against the terms of reference. Though the applicant's name did not figure in the first list, the respondents cannot disown the responsibility that they have to go by the terms of reference. Thus we find the decision making process was flawed in the very embryonic stage of the distribution of AIS officers by completely disregarding the legitimate expectation of the applicant to be a part of the guideline framing process, as per the explicit terms of reference to the P.S. Committee. We take support of the Hon'ble Supreme Court in Food Corporation of India vs M/s. Kamdhenu Cattle Feed, on 3 November, 1992 ::
AIR 1993 SC 1601, JT 1992 (6) SC 259, 1992 (3) SCALE 85, (1993) 1 SCC 71, 1992 Supp 2 SCR 322, as under, in declaring the above.
7. In contractual sphere as in all other State actions, the State and all its instrumentalities have to conform to Article 14 of the Constitution of which non-arbitrariness is a significant facet. There is no unfettered discretion in public law : A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is fairplay in action. Due observance of this obligation as a part of good administration raises a reasonable or legitimate Page 11 of 63 OA No.139/2016 expectation in every citizen to be treated fairly in his interaction with the State and its instrumentalities, with this element forming a necessary component of the decision making process in all State actions. To satisfy this requirement of non-arbitrariness in a State action, it is, therefore, necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision or else that unfairness in the exercise of the power may amount to an abuse or excess of power apart from affecting the bona fides of the decision in a given case. The decision so made would be exposed to challenge on the ground of arbitrariness. Rule of law does not completely eliminate discretion in the exercise of power, as it is unrealistic, but provides for control of its exercise by judicial review.
8. The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision making process.
Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimants perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent.
9. In Council of Civil Service Unions and Ors. v. Minister for the Civil Service, 1985 A.C. 374 (H.L.) the House of Lords indicated the extent to which the legitimate expectation interfaces with exercise of discretionary power. The impugned action was upheld as reasonable, made on due consideration of all relevant factors including the legitimate expectation of the applicant, wherein the considerations of national security were found to outweigh that which otherwise would have been the reasonable expectation of the applicant. Lord Scarman pointed out that the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject-matter. Again in In re Preston, 1985 A.C. 835 (H.L.) it was stated by Lord Scarman that the principle of fairness has an important place in the law of judicial review and unfairness in the purported exercise of a power can be such that it is an abuse of excess of power. These decisions of the House of Lords give a similar indication of the significance of the doctrine of legitimate expectation. Shri A.K. Sen referred to Shanti Vijay & Co. etc. v. Princess Fatima Fouzia and Ors. etc. [1980] 1 S.C.R. Page 12 of 63 OA No.139/2016 459, which holds that, court should interfere where discretionary power is not exercised reasonably and in good faith.
10. From the above, it is clear that even though the highest tenderer can claim no right to have his tender accepted, there being a power while inviting tenders to reject all the tenders, yet the power to reject all the tenders cannot be exercised arbitrarily and must depend for its validity on the existence of cogent reasons for such action. The object of inviting tenders for disposal of a commodity is to procure the highest price while giving equal opportunity to all the intending bidders to compete. Procuring the highest price for the commodity is undoubtedly in public interest since the amount so collected goes to the public fund. Accordingly, inadequacy of the price offered in the highest tender would be a cogent ground for negotiating with the tenderers giving them equal opportunity to revise their bids with a view to obtain the highest available price. The inadequacy may be for several reasons known in the commercial field. Inadequacy of the prince quoted in the highest tender would be a question of fact in each case. Retaining the option to accept the highest tender, in case the negotiations do not yield a significantly higher offer would be fair to the tenderers besides protecting the public interest. A procedure wherein resort is had to negotiations with the tenderers for obtaining a significantly higher bid during the period when the offers in the tenders remain open for acceptance and rejection of the tenders only in the event of a significant higher bid being obtained during negotiations would ordinarily satisfy this requirement. This procedure involves giving due weight to the legitimate expectation of the highest bidder to have his tender accepted unless outbid by a higher offer, in which case acceptance of the highest offer within the time the offers remain open would be a reasonable exercise of power for public good. Indeed, the formation of the advisory committee was to ensure fair and transparent distribution giving scope to the stake holders to air their views in regard to the principles of distribution and thereafter crystalize the guidelines taking into account genuine grievances, so that the feeling of fair treatment to the AIS officers could emerge. It was not to be. Hence we find clear violation of Section 80 (1) (b) of the Act 2014 cited supra and the principle of legitimate expectation laid down by the Hon'ble Apex Court cited supra. When there was no participation of the stake holders in framing the principles of allocation as envisaged in the terms of reference and as intended under the provisions of the Act- 2014, we find it difficult to declare that the distribution was fair and equitable, as claimed by the respondents.
Again in OA 422 of 2016 dated 19.07.2021, the Tribunal dealing with a similar aspect of AIS cadre allocation, has observed that the respondents are accountable to what they profess. When the terms of reference, speak of involving the stake holders in the evolution of Page 13 of 63 OA No.139/2016 guidelines, it has to be so. Any deviation will be violation of the very premise of the Act-2014, to cause an equitable and fair treatment of persons affected. The Tribunal has observed in the cited OA, that the respondents ignoring the right of the stake holders in participating in the process of laying down the guidelines as contemplated, is grossly incorrect. Our view remains unchanged. The relevant observations are extracted here under:
Indeed, the formation of the advisory committee was to ensure fair and transparent distribution giving scope to the stake holders to air their views in regard to the principles of distribution and thereafter crystalize the guidelines taking into account genuine grievances, so that the feeling of fair treatment to the AIS officers could emerge. It was not to be. Hence we find clear violation of Section 80 (1) (b) of the Act 2014 cited supra and the principle of legitimate expectation laid down by the Hon'ble Apex Court cited supra. When there was no participation of the stake holders in framing the principles of allocation as envisaged in the terms of reference and as intended under the provisions of the Act-2014, we find it difficult to declare that the distribution was fair and equitable, as claimed by the respondents.
V. Further, when a certain authority is given the power to exercise it in a certain manner, the said authority should either exercise the power vested in that manner or not at all and not in any other manner, as observed by the Hon'ble Supreme Court in Anuradha Bhasin v. Union of India and ors. in W.P (Civil) No. 1031 of 2019 and Ghulam Nabi Azad v Union of India and Anr in W.P (Civil) No. 1164 of 2019 on 10.1.2020 as under:
In this context, this Court in the Hukam Chand Shyam Lal case (supra), [Hukam Chand Shyam Lal v.Union of India, (1976) 2 SCC 128], observed as follows:
"18. It is well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other amodes (sic) of performance are necessarily forbidden. It is all the more necessary to observe this rule where power is of a drastic nature..."
The Committee was empowered to consider and take a view on any representation by the stake holders with reference to the determination of cadre strength and principles, after placing the same in the relevant websites and thereafter make the suitable recommendations. Instead, we found that the guidelines and allocation were circulated on the same date, thereby not exercising the power vested in the P.S. committee in the manner it should have and therefore, a violation of the legal principle laid down by the Hon'ble Apex Court, cited supra."
Page 14 of 63 OA No.139/2016Even more, respondents are accountable to what they profess to follow. In the instant case respondents were accountable to adhere to clause (ii) of the terms of reference as reproduced above. We found that the accountability feature was trespassed with unaccountable ease, as is evident from the facts of simultaneously publishing the guidelines and the allocation list on 22.8.2014. Without accountability the inviolability of the guidelines/ rules would be compromised. Administrative law calls upon the executive authority to be held responsible to the standards by which it professes its actions to be judged and it must observe those Standards on pain of invalidation of an act in violation of them. This judicially evolved rule is firmly established and has to be scrupulously followed. If a procedure is prescribed then it is binding on all the stake holders be it the applicant or the respondents. Respondents need to note that this sword of accountability is double edged and it works both sides. Respondents cannot be oblivious to this fact. While stating what we did, we take support of the Hon'ble Apex Court observation in Ramana Dayaram Shetty v International Airport Authority of India (1979 AIR 1628) as under:
It is a well settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those Standards on pain of invalidation of an act in violation of them. This rule was enunciated by Mr. Justice Frankfurter in Viteralli v. Seton (l) where the learned Judge said:
"An executive agency must be rigorously held to the standards by which it professes its action to be judged. Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirement that bind such agency, that procedure must be scrupulously observed. This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword.
After the terms of reference (For short TOR) were outlined, which constitute the sword for the respondents to formulate and implement decisions, they acting against TOR would make their decisions perish by the very same sword. The instant case is of such nature and therefore the cadre allocation to the applicant against the avowed TOR expires, for the obvious reason that respondents have not opened the window of opportunity to represent against guidelines, as professed by them in the TOR.
In addition, applicant has pointed out that there were no deliberations made with the AIS officers about the draft guidelines before placing the approved guidelines in the website on 22.8.2014 as required under the Terms of Reference (for short TOR) dated 28.3.2014, whereas in respect of State Services, Kamalanathan Committee draft guidelines were approved by GOI Page 15 of 63 OA No.139/2016 and thereafter, distribution of State officers was undertaken. Options were called from the State services officers while it was not done for AIS officers. We found no reply to this contention in the reply statement.
However, the Ld. Counsel for the respondents has submitted that even in respect of the AIS officers, on approval of the PS Committee guidelines and the tentative allocation, by the competent authority, they were acted upon.
The options were also called for from the AIS officers through their respective cadre controlling officers is another submission of the Ld. Respondents counsel. Nevertheless, the issue that remains unanswered is as to why the stakeholders were not taken on board before freezing the guidelines. A clear aberration disregarding the terms of reference to the PS committee and the spirit of Section 80 of the Act-2014.
III. Principles of Natural Justice violated.
Further, section 80 (1) (b) makes it distinctly clear about the motive to ensure fair and equitable treatment to all persons affected and the proper consideration of any representations made by such persons. When the applicant was tentatively allocated to RSAP instead of Telangana on 22.8.2014 & 10.10.2014, he represented on 26.8.2014/23.10.2014 against the same. Without considering the representations, applicant was finally allotted to RSAP on 5.3.2015. Respondents were dutiful in adducing while making the tentative allocations that those aggrieved can represent.
Applicant obediently represented on every occasion of been allocated to RSAP against his choice of State of Telangana. Having taken the step of inviting grievances if any in regard to the allocation, respondents are duty bound to reply to the representations, so that the applicant would know the Page 16 of 63 OA No.139/2016 mind of the respondents as to why the applicant's request was declined.
Every administrative decision has to be backed by a reason and that reason has to be let known to those it matters. Reason is the heart beat of any administrative decision. Necessity to present reasons will ensure that the relevant factors have been taken into consideration objectively before taking a decision and in the process usher in transparency and accountability. Reasons undoubtedly serve the cause of justice and to facilitate judicial review. Hon'ble Apex Court has summarized the grounds as to why reasons have to be furnished for taking any decision, be it administrative or judicial in M/s. Kranti Asso. Pvt. Ltd. & Anr vs Masood Ahmed Khan & Ors on 8 September, 2010 in Civil Appeal No.
- of 2010 (Arising out of SLP (Civil) No.20428 of 2007)
51. Summarizing the above discussion, this Court holds: a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. b. A quasi-judicial authority must record reasons in support of its conclusions. c. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. d. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. e. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations. f. Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi- judicial and even by administrative bodies.
g. Reasons facilitate the process of judicial review by superior Courts. h. The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice.
i. Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.Page 17 of 63 OA No.139/2016
j. Insistence on reason is a requirement for both judicial accountability and transparency.
k. If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.
l. Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or `rubber-stamp reasons' is not to be equated with a valid decision making process.
m. It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737).
n. Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".
o. In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process".
52. For the reasons aforesaid, we set aside the order of the National Consumer Disputes Redressal Commission and remand the matter to the said forum for deciding the matter by passing a reasoned order in the light of the observations made above. Since some time has elapsed, this Court requests the forum to decide the matter as early as possible, preferably within a period of six weeks from the date of service of this order upon it.
Respondents have not elaborated on the reasons as to why the representations have not been disposed. Perhaps, the applicant could have been convinced with the reasons given and he would not have travelled this distance as to knock the door of the Tribunal. In other words, they have admitted that they have faulted in not responding to the representations of the applicant. Hence not presenting reasons for non- disposal of the representations would go against the spirit of the Hon'ble Supreme Court judgment cited supra.
Page 18 of 63 OA No.139/2016Further, the basic Principle of Natural Justice is to hear the other side before a decision is taken. In the instant case, non-disposal of the representations would tantamount to violation of the Principles of Natural Justice and hence lacks legal tenability. Indeed R-1 is a master champion of propagating the need to dispose representations received from the employees, which is a laudable objective. However, we are perplexed as to why the respondents have not followed their own instructions. Rule framer has an onerous responsibility to follow the rule and set an example to others. If not the sanctity of the rule will be lost. In OA 422 of 2016 dated 19.07.2021, filed for cadre change, we dealt with this aspect at length and hence are reproducing our observations there in, to reaffirm that the action of the respondents in not disposing the representations submitted as a clear violation of the Principles of Natural Justice. Any administrative decision infringing Principles of Natural Justice will be legally untenable.
"Further, from the facts on record it is seen that the applicant was allotted to RSAP, despite his representations dated 28.8.2014/22.10.2014 to allot him to Telangana. Both the representations were unanswered as contended by the applicant and not refuted by the respondents in the reply/ additional reply filed by them. We are surprised to note the lack of response to the representations submitted by the applicant, since it is R-1 who has emphasized the need to dispose of representations as expeditiously as possible in OM dated 20.12.1968 as under:
Copy of the Office Memorandum No. 25134168-Estt.(A) Dated
20.12.1968 of DOPT Representations from Government servants on service matters -- Treatment of Reference is invited to the Ministry of Home Affairs Office Memorandum No. 118/52-Ests. Dated the 30th April, 1952 on the subject mentioned above (copy enclosed for ready reference). It has been brought to the notice of the Ministry of I-tome Affairs that undue delay occurs very often in the disposal of representations from Government servants in regard 'to matters connected with the service rights or conditions which causes hardship to the individuals concerned.
2. The representations from 'Government servants on service matters may be broadly classified as follows :-
Page 19 of 63 OA No.139/2016(1) Representations/ complaints regarding non-payment of salary allowances or other dues;
(2) Representations on other service matters;
(3) Representations against the orders of the immediate superior authority; and (4) Appeals and petitions under statutory rules and orders (e.g. Classification, Control and Appeal Rules and the petition Instructions).
3. In regard to representations of the type mentioned at (1) and (2) above, if the individual has not received a reply thereto within a month of its submission, he could address, or ask for an interview with the next higher officer for redress of his grievances. Such superior officer should immediately send for the papers and take-such action as may be called for, without delay
4. Representations of the type mentioned at (3) above, would be made generally only in cases where there is no provision under the statutory, Jules or orders for making appeals or petitions. Such representations also should be dealt with as expeditiously as possible. The provisions of the preceding paragraph would apply to such representations also, but not to later representations made by 'the same Government servant on the same subject after his earlier representation has been disposed off appropriately.
5. In regard to the representations of the type mentioned at (4) above, although the relevant rules or orders do not prescribe a time limit for disposing of appeals and petitions by the competent authority, it should be ensured that all such appeals and petitions receive prompt attention and are disposed within a reasonable time, If it is anticipated that an appeal or a petition cannot be disposed of within a month of its submission, an acknowledgement or an interim reply should be sent to the individual within a month.
6. The instructions contained in paragraph 2 of this Ministry's Office Memorandum No. 118/52-Ests. Dated the 30th April, 1952, will stand modified to the extent indicated in the paragraphs 3, 4 and 5 above.
The R-1 instructions vide memo cited supra was to dispose of the representations on service matters as early as possible. In the case on hand ironically respondents did not even examine the representations, leave alone disposing them in a swift manner. We are rather perplexed that R-1 & R-2 have not followed their own instructions. Rules apply to the respondents as much as to the applicant. Any violation of the rule is not to be encouraged as observed by the Hon'ble Supreme Court in a cornucopia of judgments as under:
The Hon'ble Supreme Court in T.Kannan and ors vs S.K. Nayyar (1991) 1 SCC 544 held that "Action in respect of matters covered by rules should be regulated by rules". Again in Seighal's case (1992) (1) Supp. 1 SCC 304 the Hon'ble Supreme Court has stated that "Wanton or deliberate deviation in implementation of rules should be curbed and Page 20 of 63 OA No.139/2016 snubbed.". In another judgment reported in (2007) 7 SCJ 353, the Hon'ble Apex court held "the court cannot de hors rules".
Therefore, not disposing the representations by the respondents is a flagrant violation of the instruction/rule, paradoxically framed by the respondents and the law cited supra. Undoubtedly, applicant has a right to be made known as to why his representations were not considered. By not doing so, the Principles of Natural Justice are trespassed, which in simple terms stipulate as under:
Natural justice is identified with the two constituents of (a) fair hearing, namely 'nemo iudex in causa sua', ie "no man can be a judge in his own cause", and (b) the right to a fair hearing -'audi alteram partem' or "hear the other side".
Disposal of the representation would enable the applicant to know the mind of the decision maker as well as understand as to whether his grievance has substance to pursue or be satisfied with the reply. Respondents have denied the opportunity to the applicant to know as to where he stands in regard to the representation he made and therefore respondents allotting RSAP cadre without disposal of the representations is a conspicuous transgression of the Principles of Natural Justice, since he was not heard by them before doing what they did to him in regard to cadre allocation. Justice would be a casualty if Principles of Natural Justice are not abided by.
In addition, Section 80 (b) of the Act-2014 bestows the responsibility on the respondents to properly consider the representations received from the AIS officers. The issue of proper consideration would be known only when the representations are disposed. The fact of the representations having not been disposed has caused a grievous injury to the very spirit and essence of the clause referred to, which has a legislative patronage. Hence any action which is not confined to the perimeter of the provisions of legislation would have no legal sanctity. Thus the decision of the respondents to allot RSAP, without disposal of representations, being contrary to the process enwombed in Section 80 (b) of the Act-2014, the said decision is not maintainable and more particularly in the context of the respondent's having the stature of a model employer."
IV. Illegality in the constitution of the PS committee.
Committees are formed with the basic purpose that collective wisdom will prevail in arriving at a fair and equitable decision. There would be a check on individual discretion. Moreover, the scope to take a balanced decision will be wide, as a committee will have members related to the issue with domain experience and expertise which would not be mostly available when an individual has to take a decision. Therefore, the constitution of Page 21 of 63 OA No.139/2016 Committees by the GOI, so that the stake holders are taken on board facilitating a meaningful discussion on the contrarian views and then finally a cogent decision is taken. Parliamentary committees are a best example of the importance of the committees in the decision making process. However, the members of the committees should not have conflict of interest in the issue that is deliberated. If such members are included, human beings what they are, the scope for the element of bias to influence the decision of the committee cannot be ruled out. Even assuming that that members of the committee who have direct or indirect interest in the issue, have not influenced the final outcome of deliberations of the committee, yet the individuals who are affected by such decisions would nourish the view that all was not well with the committee's decision since they believe an imperceptible element of bias would have crept into the decision making process because of the aspect of the conflict of interest. It is this fact which is of paramount importance in constituting the committees. Glossing over it is legally impermissible. In the instant case, the daughter and son in law of Sri P.K.Mohanty, were members of IAS and their allocation was a subject matter to be dealt by the PS Committee. Hence, Sri P.K Mohanty, IAS in the capacity of the Chief Secretary of the composite State of A.P may perhaps would not have influenced the final decision of the committee in framing the guidelines, yet it would have been proper for him to voluntarily sought exemption from the assignment. As he has not done it, at least R-1 need to have intervened and dropped his name. However, both did not happen at the relevant point of time when it mattered. True to speak, the legal axiom, that no individual can be a judge in his own case has been flouted while constituting the PS Committee. The famous phrase that Page 22 of 63 OA No.139/2016 'Caesar's wife must be above suspicion' is of relevance to the case, since Sri P.K. Mohanty need to have distanced himself from being a member of the committee of National eminence, in view of the interests of his close family members entwined to the recommendations of the committee to decide allocation. If one is involved with a prominent issue, one must avoid attracting negative attention or scrutiny. Julius Caesar is reported to have used the cited phrase to explain why he divorced his wife, Pompeia. With much more force, the principle that Justice should not only be done but should appear to have been done too, applies unequivocally to the present case. An identical matter was dealt in OA 1241 of 2014, dated 29.03.2016, wherein the illegality in the formation of the PS committee was dealt at length and held that the formation of PS committee was not in consonance with law as under. Most respectfully, we agree with the said observation of no iota of doubt in our mind.
(ii) Whether inclusion of Dr. P.K. Mohanty, IAS (1979) in the Advisory Committee as a Member of the Committee vitiated its deliberations because two of the offices viz., Smt. Swetha Mohaty, IAS (2011) (Unreserved Outsider S. No.
73) and Sri Rajat K Saini, IAS (2007) (OBC Outsider S. No. 15) are his daughter and son-in-law respectively?
With regard to the issue No.ii, we have carefully considered the contentions of the applicant that the name of Dr. P.K. Mohanty was included as a Member in the Advisory Committee constituted under the Act to frame guidelines for allocation of AIS officers to the State of Andhra Pradesh and Telangana despite the fact that his daughter Smt. Swetha Mohanty, IAS and his son-in-law Mr. Rajat K. Saini are borne on the list slated for allocation. Though Dr. P.K. Mohanty was included as a Member in Pratyush Sinha Committee to frame guidelines for allocation of All India Service officers to the State Andhra Pradesh and Telangana in the capacity of the then Chief Secretary to the united State of Andhra Pradesh, but the authorities are well within the knowledge that Dr. P.K. Mohanty's daughter and son-in-law are both IAS officers in the united State of Andhra Pradesh and their names are slated in the list for allocation. Knowing fully well that the names of daughter and son-in-law of Dr. P.K. Mohanty figured in the list for allocation, the respondent authorities included Dr. P.K. Mohanty, IAS as one of the Members of the Advisory Committee which is certainly contrary to law as there is every possibility to take a bias decision by Page 23 of 63 OA No.139/2016 Dr. P.K. Mohanty in framing guidelines with a view to help his daughter and son in law in getting allotment to State as per their choice.
The respondents and Mr.Mohanty did commit indiscretion and were circumvent in view of the fact that the terms of reference of the Committee of which Mr.Mohanty by virtue of his position i.e. the Chief Secretary of undivided A.P. was a member was to formulate guidelines for allocation of cadres to the members of the undivided A.P. who were in the gradation list of the IAS as on 01.06.2014 and Mr.Mohanty's daughter and son-in-law were in the list. Accordingly, the respondents ought not to have nominated Mr.Mohanty as the guidelines to be formulated would have been naturally applicable to his daughter and son-in-law. At the same time, Mr.Mohanty should have suo moto declined to become a member of the committee saying that he was not interested to be a party in view of the fact that his daughter and son-in-law belong to the undivided IAS cadre of A.P. and further that there would have been a conflict of interest as he would be a judge in his own cause. There are catena of judicial pronouncements upholding the time tested principles that one cannot be a judge in one's own cause and that like Caesar's wife a public servant should be beyond reproach and the justice should not only be done, but should also "appear to have been done". The person concerned has nothing to do with the proceedings in which he will be willy nilly involved in a conflict of interest. On the basis of the above, although there is nothing to prove that Mr.Mohanty's daughter and son-in-law got benefited from the guidelines which were manipulated in order to ensure that his daughter and son-in-law got what they wanted i.e. Telangana cadre, yet the unsavory fact cannot be wished away that as Mr.Mohanty was an interested party and there was a conflict of interest involved in his becoming a member of the committee and therefore the delicacy of the situation ought to have prompted Mr.Mohanty to have refrained from becoming a member of the committee. To this extent we can say that why Mr.Mohanty being a member a shadow was cast on his neutrality in the matter and adversely effected.
To substantiate his contentions, learned Senior Counsel appearing for the applicant relied upon various judgments of the Apex Court and we have carefully gone through the same.
In the various judgments of the Hon'ble Apex Court, the Hon'ble Supreme Court held that the aim of the rules of natural justice is to secure justice or to put it negatively, to prevent miscarriage of justice and inclusion of a person in the decision taking authority where his family members participate would vitiate the decision and amounts to bias as there is reasonable likelihood of bias. Further, it has been reiterated that no one shall be a judge in his own cause (Nemo debet esse judex propria causa). In Manik Lal Vs. Dr. Prem Chand Singhvi, AIR 1957 SC 425, the Apex Court accepted the validity of the said principle and held that the principle applied not only to judges but to all Tribunals and Bodies which were given jurisdiction to determine the judicial rights of the parties. On the content of the principle, the Hon'ble Supreme Court pointed out the the test was not whether in fact a "bias" has affected the judgment, but the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the Tribunal might have operated against him in the final decision of the Tribunal". Thus, rule has been asserted not only in the case of courts of justice and other judicial tribunals, but in the case of authorities which, though, in no sense, to be called courts, have to act as judges of the rights of others. The Hon'ble Supreme Court laid down that the actual proof of Page 24 of 63 OA No.139/2016 prejudice was not necessary. It is properly extended to all cases where an independent mind has to be applied to arrive at a fair decision between the rival claims of parties. Justice is not the function of the courts alone, it is the duty of all those who are expected to decide fairly between the contending parties.
Bias has been classified into two categories. We are concerned here with personal bias. Personal bias may arise from personal hostilities to one party or from personal friendship or family relationship with the other. In the case family relationship, the challenge to the proceeding need only establish so close a degree of relationship as to give rise to the reasonable likelihood of the judge or the authority espousing the cause as his own. Closer relationship has invariably led to the invalidation of the proceedings. Dr. P.K. Mohanty was a Member of the Committee charged with the duty of framing guidelines and his daughter and son-in-law are included in the allotment list which is sufficiently close to bring the doctrine against bias into play. No doubt, Dr. P.K. Mohanty as a Member of the Committee was not sitting on his own cause, but the nearness of the relationship reasonably gives an impression to the other candidates that there was a real likelihood of Dr. P.K. Mohanty espousing the cause of his daughter and son-in-law as his own.
It is an admitted fact that the daughter and son-in-law of Dr. P.K. Mohanty were in the list of officers borne on the cadre as on 01.06.2014 slated for allotment to successor States and hence, there is every likelihood for believing that he must have been biased and taking into consideration the human probabilities and ordinary course of human conduct, the inescapable conclusion a reasonable man can arrive at including this Tribunal is that the presence of Dr. P.K. Mohanty as a Member of the Committee to consider cases of allotment of his kith and kin vis-à-vis other officers certainly caused bias in their favour.
Learned Senior Counsel appearing for the applicant relied upon the decisions of the Hon'ble Supreme Court and various High Courts wherein the courts decided the issue in respect of bias.
(a) In WP [C] 3381/2002 in Commander and Ors. vs. Bhupendera Kardeam and Ors. decided on 12.11.2013, the Hon'ble High Court of Delhi has held as under:
"17. Given the background of the case and the allegations made therein, more specifically the constitution of the selection committee including the relatives of the candidates who have applied for appointment would highlight the manner in which the whole exercise was sought to be carried out. The exercise has not been fair, transparent and open. To set right such a selection, if the Tribunal has directed for a fresh consideration by a fresh selection committee we do not see any infirmity in such directions. This would also obviate any allegation of nepotism and bias. The Supreme Court in its opinion reported as MNU/SC/0427/1969 : (1969) 2 SCC 262 A.K. Kripak vs. Union of India & Ors. has held as under :
'The members of the selection board other than Naquishbund, each one of them separately, have filed affidavits in this Court swearing that Naquishbund in no manner influenced their decision in making the selections. In a group deliberation each member of the group is bound to influence the others, more so, if the member concerned is a person with special knowledge. Ms bias is likely to operate in a subtle manner. It is Page 25 of 63 OA No.139/2016 no wonder that the other members of the selection board are unaware of the extent to which his opinion influenced their conclusions. We are unable to accept the contention that that in adjudging the suitability of the candidates the members of the board did not have any mutual discussion. It is not as if the records spoke of themselves. We are unable to believe that the members of selection board functioned like computers. At this stage it may also be noted that at the time the selections were made, the members of the selection board other than Naquishbund were not likely to have known that Basu had appealed against his supersession and that his appeal was pending before the State Government. Therefore there was no occasion for them to distrust the opinion expressed by Naquishbund. Hence the board in making the selections must necessarily have given weight to the opinion expressed by Naquishbund.'
18. Further the Supreme Court in its opinion reported as MANU/ SC/0026/1985: (1985) 4 SCC 417 Ashok Kumar Yadav and Ors. vs. State of Haryana and Ors. (connected matters) has held as under:
'We agree with the petitioners that it is one of the fundamental principles of our jurisprudence that no man can be Judge in his own cause and had if there is a reasonable likelihood of bias it is "in accordance with natural justice and common sense that the justice likely to be so biased should be incapacitated from sitting". The question is not whether the judge is actually biased or in fact decides partially, but whether there is a real likelihood of bias. What is objectionable in such a case is not that the decision is actually tainted with bias but that the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision. The basic principle underlying this rule is that justice must not only be done but must also appear to be done and this rule has received wide recognition in several decisions of this Court. It is also important to note that this rule is not confined to cases where judicial power stricto sensu is exercised. It is appropriately extended to all cases where an independent mind has to be applied to arrive at a fair and just decision between the rival claims of parties. Justice is not the function of the courts alone; it is also the duty of all those who are expected to decide fairly between contending parties. The strict standards applied to authorities exercising judicial power are being increasingly applied to administrative bodies, for it is vital to the maintenance of the rule of law in a welfare state where the jurisdiction of administrative bodies in increasing at a rapid pace that the instrumentalities of the State should discharge their functions in a fair and just manner. This was the basis on which the applicability of this rule was extended to the decision making process of a selection committee constituted for selecting officers to the Indian Forests Service in A.K. Kraipak v. Union of India. What happened in this case was that one Naquishbund, the acting Chef Conservator of Forests, Jammu and Kashmir was a member of the Selection Board which had been set up to select officers to the Indian Forest Service from those serving in the Forest Department of Jammu and Kashmir. Naquisbund who was a member of the Selection Board was also one of the candidates for selection to the Indian Forest Service. He did not sit on the Selection Board at the time when his name was considered for selection but he did Page 26 of 63 OA No.139/2016 sit on the Selection Board and participated in the deliberations when the names of his rival officers were considered for selection and took part in the deliberations of the Selection Board while preparing the list of the selected candidates in order of preference. This Court held that the presence of Naquishbund vitiated the selection on the ground that there was reasonable likelihood of bias affecting the process of selection. Hegde, J. speaking on behalf of the Court countered the argument that Naquishbund did not take part in the deliberations of the Selection Board when his name was considered, by saying :
"But then the very fact that he was a member of the Selection Board must have its own impact on the decision of the Selection Board. Further, admittedly, he participated in the deliberations of the Selection Board when the claims of his rivals... were considered. He was also party to the preparation of the list of selected candidates in order of preference. At every stage of his participation in the deliberation of the selection board, there was a conflict between his interest and duty..... The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased..... There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct."
This Court emphasised that it was not necessary to establish as but it was sufficient to invalidate the selection process if it could be shown that there was reasonable likelihood of bias. The likelihood of bias may arise on account of proprietary interest or on account of personal reasons, such as, hostility to one party or personal friendship or family relationship with the other. Where reasonable likelihood of bias is alleged on the ground of relationship, the question would always be as to how close is the degree of relationship or in other words, is the nearness of relationship so great as to give rise to reasonable apprehension of bias on the part of the authority making the selection."
(b) In Civil Appeal No. 10026 of 1983, decided on 10.08.1984, in the case of J. Mohapatra and Co. and anr. vs. State of Orissa and Anr., reported in AIR 1984 SC 1572, the Hon'ble Supreme Court of India has held as under:
"10. It is, however, unnecessary to go further into this controversy for the real question in this Appeal is of far greater importance. That is the question of bias on the part of some of the members of the Assessment Sub-Committee. This question has been answered against the Appellants and forms the subject-matter of the third and fourth grounds on which the High Court rested its decision. Nemo judex in causa sua, that is, no man shall be a judge in his own cause, is a principle firmly established in law. Justice should not only be done but should manifestly be seen to be done. It is on this principle that the proceedings in courts of law are open to the public except in those cases where for special reason the law requires or authorises a hearing in camera. Justice can never be seen to be done if a man acts as a judge in his own cause or is himself interested in its outcome. This principle applies not only to judicial proceedings but Page 27 of 63 OA No.139/2016 also to quasi-judicial and administrative proceedings. The position in law has been succinctly stated in Halsbury's Laws of England, Fourth Edition, Volume 1, para 68, as follows :
Disqualification for financial interest - There is a presumption that any direct financial interest, however small, in the matter in dispute disqualifies a person from adjudicating. Membership of a company, association or other organisation which is financially interested may operate as a bar to adjudicating, as may a bare liability to costs where the decision itself will involve no pecuniary loss.
11. xxx
12. It hardly requires any argument to show that a person who has written a book which is submitted for selection, either by himself or by his publisher, is interested in the matter of selection. Authors get their books published by publishers or may themselves publish them. In either case, they stand to benefit financially. In the first case, by getting royalty from publishers and in the second case, by making profits on the sale of books if the amount realised exceeds publication of the book. The Appellants have filed statements showing the financial benefit which accrued to those members of the Assessment Sub-Committee whose books were selected. To give one instance from these statements, in the case of a member of the Assessment Sub-Committee who was a Government official and whose books were selected, books of the aggregate value of Rs.4,000 were purchased in the year 1980, of the aggregate value of Rs.
6,500 in the year 1981, and of the aggregate value of Rs. 72,500 in the year 1982. It was contended in the counter affidavit filed on behalf of the Respondents that the amount of royalty received by these member- authors was not much. This fact is immaterial. The amount of royalty depends on the agreement between the author and the publisher as also upon the sale price of the book. The fact, however, remains that by the books being selected and purchased for distribution to school and college libraries the sales of those books had gone up and correspondingly the royalty received by the author-members also went up and such author-members thus received financial benefit. It is no answer to say that an author-member is only one of the members of the Assessment Sub-Committee and that the ultimate decision rests with the State Government which may reject any book out of the list of approved books. A similar argument was rejected by this Court in Kraipak's case. The State Government would normally be guided by the list approved by the Assessment Sub Committee. Further, to say that such author-member is only one of the members of the Assessment Sub-Committee is to overlook the fact that the author-member can subtly influence the minds of the other members against selecting books by other authors in preference to his own. It can also be that books by some of the other members may also have been submitted for selection and there can be between them a quid pro quo or, in other words, you see that my book is selected and in return I will do the same for you. In either case, when a book of an author-member comes up for consideration, the other members would feel themselves embarrassed in frankly discussing its merits. Such author-member may also be a person holding a high official Page 28 of 63 OA No.139/2016 position whom the other members may not want to displease. It can be that the other members may not be influenced by the fact that the book which they are considering for approval was written by one of their members. Whether they were so influenced or not is, however, a matter impossible to determine. It is not, therefore, the actual bias in favour of the author-member that is material but the possibility of such bias. All these considerations require that an author-member should not be a member of any such committee or sub-committee.
13. There is, however, an exception to the above rule that no men shall be a judge in his own cause, namely, the doctrine of necessity. An adjudicator, who is subject to disqualification on the ground of bias or interest in the matter which he has to decide, may be required to adjudicate if there is no other person who is competent or authorized to adjudicate or if a quorum cannot be formed without him or if no other competent tribunal can be constituted. In such cases the principle of natural justice would have to give way to necessity for otherwise there would be no means of deciding the matter and the machinery of justice or administration would break down. Thus, in The Judges v. Attorney- General for Saskatchewan 53 TLR 464, the Judges of the Court of Appeal were held competent to decide the question whether Judges of the Court of Appeal, of the Court of King's Bench and of the District Courts of the Province of Saskatchewan were subject to taxation under the Income-tax Act, 1932, of Saskatchewan on the ground that they were bound to act ex necessitate. The doctrine of necessity applies not only to judicial matters but also to quasi-judicial and administrative matters. The High Court, however, wrongly applied this doctrine to the author-members of the Assessment Sub Committee. It is true, the members of this Sub-Committee were appointed by a Government Resolution and some of them were appointed by virtue of the official position they were holding, such as, the Secretary, Education Department of the Government of Orissa, and the Director Higher Education, etc. There was, however, nothing to prevent those whose books were submitted for selection from pointing out this fact to the State Government so that it could amend its Resolution by appointing a substitute or substitutes, as the case may be. There was equally nothing to prevent such nonofficial author-members from resigning from the committee on the ground of their interest in the matter."
(c) Dimes -V- Proprietors of Grand Junction Canal and Others; HL 26 JUN 1852] July 2, 2015 DLS LEAVE A COMMENT References:(1852) 3 HL Cas 759, [1852] Eng R 789, (1852) 3 HLC 759, (1852) 10 ER 301 The Lord Chancellor, Lord Cottenham, owned a substantial shareholding in the defendant cnal which was an incorporated body. He sat on appeal from the Vice-Chancellor, whose judgment in favour of the company he affirmed. There was an appeal on the grounds that the Lord Chancellor was disqualified.
Held: After consultation, Lord Cottenham was disqualified from sitting as a judge in the cause because he had an interest in the Page 29 of 63 OA No.139/2016 suit. There was no inquiry by the court as to whether a reasonable man would consider Lord Cottenham to be biased and no inquiry as to the circumstances which led to Lord Cottenham sitting. Lord Campbell said: 'No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest he had in this concern: but, my Lords, it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest. Since I have had the honour to be Chief Justice of the Court of Queen's Bench, we have again and again set aside proceedings in inferior tribunals because an individual, who had an interest in a cause, took a part in the decision. And it will have a most salutary influence on these tribunals when it is known that this high Court of last resort in a case in which the Lord Chancellor of England had an interest, considered that his decree was on that account a decree not according to law, and was set aside. This will be a lesson to all inferior tribunals to take care not only that in their decrees they are not influenced by their personal interest, but to avoid the appearance of labouring under such an influence."
(d) In Writ Petition Nos. 173 to 175 of 1967, decided on 29.04.1969, in A.K. Kraipak and Ors. vs. Union of India and Ors. [ AIR 1970 SC 150], the Hon'ble Supreme Court of India has held as under:
"15. It is unfortunate that Naquishbund was appointed as one of the members of the selection board. It is true that ordinarily the Chief Conservator of Forests in a State should be considered as the most appropriate person to be in the selection board. He must be expected to know his officers thoroughly, their weaknesses as well as their strength. His opinion as regards their suitability for selection to the All India Service is entitled to great weight. But then under the circumstances it was improper to have included Naquishbund as a member of the selection board. He was one of the persons to be considered for selection. It is against all canons of justice to make a man judge in his own cause. It is true that he did not participate in the deliberations of the committee when his name was considered. But then the very fact that he was a member of the selection board must have had its own impact on the decision of the selection board. Further admittedly he participated in the deliberations of the selection board when the claims of his rivals particularly that of Basu was considered. He was also party to the preparation of the list of selected candidates in order of preference. At every stage of this participation in the deliberations of the selection board there was a conflict between his interest and duty. Under those circumstances it is difficult to believe that he could have been impartial. The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased. We agree with the learned Attorney-General that a mere suspicion of bias is not sufficient. There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human Page 30 of 63 OA No.139/2016 probabilities and ordinary course of human conduct. It was in the interest of Naquishbund to keep out his rivals in order to secure his position from further challenge. Naturally he was also interested in safeguarding his position while preparing the list of selected candidates.
16. The members of the selection board other than Naquishbund, each one of them separately, have filed affidavits in this Court swearing that Naquishbund in no manner influenced their decision in making the selections. In a group deliberation each member of the group is bound to influence the others, more so, if the member concerned is a person with special knowledge. His bias is likely to operate in a subtle manner. It is no wonder that the other members of the selection board are unaware of the extent to which his opinion influenced their conclusions. We are unable to accept the contention that in adjudging the suitability of the candidates the members of the board did not have any mutual discussion. It is not as if the records spoke of themselves. We are unable to believe that the members of selection board functioned like computers. At this stage it may also be noted that at the time the selections were made, the members of the selection board other than Nquishbund were not likely to have known that Basu had appealed against his supersession and that his appeal was pending before the State Government. Therefore there was no occasion for them to distrust the opinion expressed by Naquishbund. Hence the board in making the selections must necessarily have given weight to the opinion expressed by Naquishbund.
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21. It was next urged by the learned Attorney-General that the mere fact that one of the members of the Board was biased against some of the petitioners cannot vitiate the entire proceedings. In this connection he invited our attention to the decision of this Court in Summer Chand Jain vs. Union of India and Anr. Writ Petition No. 237/1966 decide on 4.5.1967. Therein the Court repelled the contention that the proceedings of a departmental promotion committee were vitiated as one of the members of that committee was favourably disposed towards one of the selected candidates. The question before the Court was whether the plea of mala fides was established. The Court came to the conclusion that on the material on record it was unable to uphold the plea. In that case there was no question of any conflict between duty and interest nor any members of the departmental promotion committee was a judge in his own case. The only thing complained of was that one of the members of the promotion committee was favourably disposed towards one of the competitors. As mentioned earlier in this case we are essentially concerned with the question whether the decision taken by the board can be considered as having been taken fairly and justly."
In view of the above position, we hold that the inclusion of Dr. P.K. Mohanty, IAS (1979) in the Advisory Committee as a member vitiate its deliberations. The issue is answered accordingly.
Page 31 of 63 OA No.139/2016V. Discrimination.
Swapping has been allowed within the roster block for Promotees and DR insiders where as DR outsider swapping is within the batch as per para 8 (iv) of the guidelines. Again for reserved community officers of DR-
outsider category, as per Para 8 (v), swapping was allowed within the roster block. DR-UR outsider officers have been thus been discriminated is the contention of the applicant. Respondents aver that there were 62 UR outsider officers for distribution among the 2 States and that 27 have to be allocated to the State of Telangana, and hence 27 roster blocks were formed keeping in mind the fact that majority of the officers have opted for the State of Telangana. Applicant at sl 37 fell in a roster block of size of 3 officers with 2 of the officers in the block belonging to 1996 batch.
Considering the recommendations of the PS committee and with the approval of the competent authority, R-2 released the provisional allocation of IPS officers on 26.12.2014. Competent authority while approving the provisional allocation has opened up another window of opportunity, permitting swapping with another officer in the same category having the same grade pay. The reserved community officers are few in number, as for instance there were 12 OBC-Outsider officers from 9 batches, 11 SC-
Outsider officers from 10 batches and 7 ST-Outsider officers from 6 batches. Hence swapping was permitted in the roster block spanning a few batches, as per para 8.5 of the guideline to enhance their scope of swapping in a fair and justifiable manner so that the benefit of swapping is extended to each stake holder in a uniform manner. Therefore, for reasons stated, respondents plead that the applicant is not eligible to get swapped with officers named, against the guidelines. We appreciate the concern shown by Page 32 of 63 OA No.139/2016 the respondents in accommodating the cause of the reserved community officers under swapping. In DR-outsider category applicant has stated that out of 33 batches of IPS officers, 14 had only one officer, 9 had 2 officers and 5 with 3 officers. Presuming the roster size of 2 to 3 there were only 3 batches where the number of officers was greater than the roster size.
Similar is the case with respect to IAS/IFS cadres as well. Applicant further adds that he is the only officer in his batch from the DR-UR outsider category and hence there was no scope to swap with others. These facts submitted by the applicant have not been denied by the respondents by way of filing a rejoinder or while making the submissions. It was thus incumbent on part of the respondents to study the aspect of less number of IPS officers in the category specified in a batch, on similar lines as was done in respect of the reserved community officers. Hence the argument that the number of reserved community IPS officers selected are less in number and therefore swapping within roster block covering a few batches was allowed, as propounded by the respondents, would equally apply to certain batches where number of DR-UR outsider officers recruited is less as in the case of the applicant, who was a loner in his batch from the said category. Respondents appear to have not applied their mind to this intrinsic issue to ensure fair and equitable treatment as per section 80 of Act-2014. Naturally, applicant being the sole candidate from the 1995 batch, there is no scope to swap as per the guidelines framed. In contrast, Sri V.V.S Rao, of 1995 batch belonging to DR insider OBC category swapped with Sri C.M. Trivikrama Varma from the 2005 batch. Applicant wanted to swap with Sri S.Bajchi of 1996 IPS batch, but he could not do so because of batch-wise restriction to DR-UR officers. Sri S.Bajchi thereby Page 33 of 63 OA No.139/2016 swapped with Smt. Ritu Mishra of 1996 batch and in the process, the applicant, who is senior, was left over.
Albeit, the applicant or the Ld. Counsel for the applicant has not pleaded in the instant OA, nonetheless in the interest of justice, we have to point out that we have found that the respondents in different OAs like OA Nos.1241/2014, 422/2016, 1037/2019 etc. have adopted the lottery system in respect of the roster blocks whereas when it came to a decision to choose as to from where the first point of allocation should start, without going for the lottery system which is fair, respondents have arbitrarily decided to begin with RSAP. The starting point would make an ocean of difference in the allocation of officer among the 2 States. Respondents could not explain as to why they chose RSAP as the first point of allocation. Similarly we have noticed that the respondents in the OAs referred to, that though there were officers who were willing to go over to RSAP or willing to be allotted to any one of the 2 States or did not indicate any option, were not straight away allotted to RSAP, keeping in view the insignificant options, numbering 8 ,having been received for RSAP. The very purpose of roster blocks was due to the fact that the number of IPS officers who opted for Telangana was far in excess of 27 posts available to be filled up in the relevant category. In the background of most of the officers opting for Telangana, it was administratively prudent to allot officers to RSAP who had no objection to go over there. By doing so, the roster size as well as the point of allocation would change, thereby the allotment of the applicant to Telangana would have been brightened.
Page 34 of 63 OA No.139/2016It is not out of place to state that R-1 has permitted swapping to DR-
outsider AIS officers at the time of bifurcation of the States of Bihar, Madhya Pradesh and U.P, as per the recommendations of the U.C.Agarawal committee. The respondents claiming that the guidelines were recommended by a different committee namely, the PS committee in the instant case, and hence no comparison can be made, would not hold water.
The reason being, that the PS Committee and the U.C Agarwal Committee recommendations were approved by R-1. The same authority cannot approve two different guidelines to the same set of AIS officers governed by the same AIS act and the rules thereof. Hence, it is a classic case of discrimination.
It was also noticed in the OA 422/2016 dated 19.07.2021, adjudicated by this Tribunal wherein the same respondents were arrayed as parties, that some IPS officers who did not represent for swapping like Sri Umesh Sharaff, Sri K.R.M. Kishore Kumar, Sri S.B Baghci, Smt. Ritu Mishra, Sri Tarun Joshi and Sri Navin Gulati without a representation were granted the benefit of swapping whereas Sri Vijay Kumar another IPS who preferred RSAP was not allotted under the pretext that he did not represent under swapping norms. Respondents applying, a different standard to different officers, not permitted under rules, is arbitrary.
The respondents have also averred that reasonable classification of IPS officers can be done as DR-Outsider/Insider, Reserved/Unreserved, Promotee and Direct Recruits etc. under law. We agree that there are certain Constitutional relaxations provided to the reserved community officers at the time of appointment to IPS and therefore the reasonable Page 35 of 63 OA No.139/2016 classification stated is permissible. Once the officers join IPS, they form a homogeneous group and therefore bringing in a heterogeneous influence at the time of distribution of the officers due to bifurcation of a State is unfair.
In fact, while promoting the IPS officers to senior positions or while effecting their transfers, the classification in question is not adopted by the respondents. The respondents have resorted to class classification and not reasonable classification; the latter can be justified under law but not the former. The twin tests of reasonable classification is that there has to be an intelligible differentia between those grouped together and others who are kept out of the group and a nexus has to exist between the differential and the object of the legislation. The artificial classification implemented by the respondents to subdivide the IPS officers into subgroups of DR Insider/Outsider, Promotee/DR etc after they have joined the service and form a homogeneous group, does not satisfy the twin tests stated and certainly injures article 14 in the process.
We are also surprised to note, as to why concept of swapping was ushered mid-way. It could have been done at the end or laid down at the beginning so that the stake holders would have given suggestions to make the guidelines workable without glitches. Not doing so is adding strength to the applicant's assertion that swapping guidelines were introduced half way through, to favour some officers.
In addition, the principle of seniority was ignored in framing the swapping norms. Usually it is the senior whose preference is given priority in swapping or in transfer. When the respondents could think of the Page 36 of 63 OA No.139/2016 reserved community officers in providing benefits under swapping, it was necessary on their part to have thought of inducting the general principle of seniority while allowing swapping. The applicant though senior could not get swapped whereas his juniors of the 1996 got swapped, which is not rational enough to be upheld, given the importance of seniority in service law. We are of the view that the respondents need to protect the interests of all the IPS officers in accordance with rules/law.
Indeed, respondents approach has to be equi-distant from both the groups and not espouse the cause of one group over the other without taking a balanced view of the difficulties being faced by both the groups.
The art of administration is to make the impossible possible through a constructive decision making process and not cause heart burn to anyone.
Respondents have a stature of a model employer and therefore they have to fulfill certain defined legal obligations. Our view is that they did not, by being arbitrary in their approach to the whole issue. The respondents' only line of defense is that the applicant is trying to apply his own set of norms other than that of PS committee. The question is as to whether the PS committee guidelines are legally valid given the lack of legal logic in approaching the issue of allocation of the AIS officers among the 2 states as brought out above. The aspects deliberated upon have been extensively discussed by the Tribunal in OA 422/2016 and came to a conclusion that the process of swapping implemented by the respondents lacked application of mind and was discriminative, with arbitrariness looming large, by applying the legal principles laid down by Hon'ble Apex Court in different verdicts. The Ld. Respondents' counsel and the respondents in OA Page 37 of 63 OA No.139/2016 422/2016 as well as in the present OA being one and the same, it cannot be gainsaid that they are not aware of the observations of the Tribunal cited.
The relevant portions of cited OA, as are relevant, are extracted here under:
Going further, we note that the respondents have justified that Sri Vijay Kumar, an IPS officer of 2012 batch, with whom the applicant applied for swapping since he belongs to the same category and grade pay, was allotted to Telangana cadre based on the roster point and also for the reason that the said officer has not represented for swapping. In this regard we observe that the respondents have admitted that 80 to 90 percent of the officers applied for Telangana. Against this admission we fail to understand as to why the respondents have not allotted Sri Vijay Kumar to RSAP although he opted for the said State and was confirmed by the respondents in the reply statement. The allocation of cadres based on roster blocks was introduced for the reason that there are more number of officers who sought Telangana and in this context when an officer preferred the deficit State of RSAP, it was all the more necessary to allot him to RSAP straight away and applying roster block concept was irrational since it was not at all required. A simple process was complicated by ushering in roster blocks in allocation of officers who have opted for a deficit State. The competition was for Telangana and not for RSAP and therefore ushering in the aspect of roster point to allot Sri Vijay Kumar to Telangana against his option for RSAP lacks meaningful logic and the very philosophy of roster theory. Hence we have no hesitation to hold that allotting Sri Vijay Kumar to Telangana was not in administrative interest for reasons which require no reiteration. In the same vein, it was not proper on the part of the respondents to assert that there were no eligible officers for swapping, given the options exercised by Sri Vijay Kumar and the applicant.
Moreover, applicant has pointed out that respondents have permitted swapping in respect of Sri Umesh Sharaff, Sri K.R.M. Kishore Kumar, Sri S.B Baghci, Smt. Ritu Mishra, Sri Tarun Joshi and Sri Navin Gulati without a representation and if this be so the question that arises is why not in the case of Sri Vijay Kumar. Respondents had no answer to this question in their reply statements, which implies a candid admission. Granting benefits to some and not to others comes under the ambit of discrimination/arbitrariness and the aspects of arbitrariness/ discrimination constitute the antithesis to the concept of equality provided for under Article 14 of the Constitution. Any decision which is harmful to Article 14 of the Constitution is illegal.
Indeed, when the decision making process and the decision taken are based by disregarding the relevant consideration of 6 officers having been permitted swapping without a representation, the decision process and the decision taken to negate the case of Sri Vijay Kumar has to be termed as arbitrary. More so, when the respondents had full details of Sri Vijay Kumar, supplied by the State Government in response to various missives sent by R-1/R-2 that he was willing to go to RSAP and in fact admitted by the respondents that Sri Vijay Kumar had opted for RSAP, we fail to comprehend as to whether a further representation was required from Sri Vijay Kumar to be swapped to RSAP, with a request for swapping with the said officer by the applicant was on record. If required, for technical reasons the respondents could have communicated with Sri Vijay Kumar to ascertain his willingness. There is no document filed to confirm such communication by the respondents. That apart, the reasons for allowing Page 38 of 63 OA No.139/2016 swapping of the 6 officers without making any representations cited supra are not forthcoming from the respondents in the reply statements or during the Counsel submissions. Decision making is a process which requires rationality, reasonableness, objectivity, transparency and application of mind. Declining the request of the applicant to swap with Sri Vijay Kumar and conceding to the request of 6 others as pointed out, though all were placed in the similar circumstances, is not a quotable case of transparency and objectivity in decision making. Presuming for a moment that swapping rules were not framed, even then any relief granted to the 6 officers named was to be extended mutatis mutandis to the applicant/ Sri Vijay Kumar as well. While passing determinative orders, discretion has to be exercised adhering to the principles of fairness and good governance. The extent of fairness can be assessed by the degree to which an administrative order can be anticipated. Anticipation is possible when parameters of decision making are not altered from a case to case basis as has happened in the case on hand. If factors of arbitration and discrimination which imbue element of uncertainty are allowed to have a free run, then decisions would change from person to person as well as for different situations, though the dependent factors of decision making remain constant. The present case is a classic case representing the phenomenon described. The responsibility of the respondents was to jettison the uncertainty. For making the above remarks we take support of observations of the Hon'ble Supreme Court in Asha Sharma v. Chandigarh Admn., (2011) 10 SCC 86 : (2012) 1 SCC (L&S) 354, as under,
12. Arbitrariness in State action can be demonstrated by existence of different circumstances. Whenever both the decision-making process and the decision taken are based on irrelevant facts, while ignoring relevant considerations, such an action can normally be termed as "arbitrary".
Where the process of decision making is followed but proper reasoning is not recorded for arriving at a conclusion, the action may still fall in the category of arbitrariness. Of course, sufficiency or otherwise of the reasoning may not be a valid ground for consideration within the scope of judicial review. Rationality, reasonableness, objectivity and application of mind are some of the prerequisites of proper decision making. The concept of transparency in the decision-making process of the State has also become an essential part of our administrative law.
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14. Action by the State, whether administrative or executive, has to be fair and in consonance with the statutory provisions and rules. Even if no rules are in force to govern executive action still such action, especially if it could potentially affect the rights of the parties, should be just, fair and transparent. Arbitrariness in State action, even where the rules vest discretion in an authority, has to be impermissible. The exercise of discretion, in line with principles of fairness and good governance, is an implied obligation upon the authorities, when vested with the powers to pass orders of determinative nature. The standard of fairness is also dependent upon certainty in State action, that is, the class of persons, subject to regulation by the Allotment Rules, must be able to reasonably anticipate the order for the action that the State is likely to take in a given situation. Arbitrariness and discrimination have inbuilt elements of uncertainty as the decisions of the State would then differ from person to person and from situation to situation, even if the determinative factors Page 39 of 63 OA No.139/2016 of the situations in question were identical. This uncertainty must be avoided.
Therefore, the respondents rejecting the representation of the applicant for swapping on 7.1.2015 cannot be upheld under law for the whys and wherefores expounded in paras supra.
Being on the subject, it would be of interest to hold that the respondents as model employers have to be fair by giving due regard and respect to the rules framed. Openness and probity in conduct is the hall mark of a model employer and such an employer should not frustrate the claims of its employees as well guillotine their legitimate expectations resulting in hopes ending in despair. Hope is gloriously precious and it is should be nourished. An atmosphere of trust has to be created so that the employees are sure that it is not belied and they are treated with dignity so that good governance becomes a genuine reality. Our remarks are based on the observations of the Hon'ble Apex Court in Bhupendra Nath Hazarika & Anr vs. State of Assam & Ors on 30th November, 2012 in CA Nos.8514-8515 of 2012, as under.
"48. Before parting with the case, we are compelled to reiterate the oft- stated principle that the State is a model employer and it is required to act fairly giving due regard and respect to the rules framed by it. But in the present case, the State has atrophied the rules. Hence, the need for hammering the concept.
49. Almost a quarter century back, this Court in Balram Gupta vs Union of India & Anr. [1987 (Supp) SCC 228] had observed thus:
"As a model employer the Government must conduct itself with high probity and candour with its employees."
51. In Secretary, State Of Karnataka And vs. Umadevi And Others [ (2006) 4 SCC 1], the Constitution Bench, while discussing the role of state in recruitment procedure, stated that if rules have been made under Article 309 of the Constitution, then the Government can make appointments only in accordance with the rules, for the State is meant to be a model employer.
53. We have stated the role of the State as a model employer with the fond hope that in future a deliberate disregard is not taken recourse to and deviancy of such magnitude is not adopted to frustrate the claims of the employees. It should always be borne in mind that legitimate aspirations of the employees are not guillotined and a situation is not created where hopes end in despair. Hope for everyone is gloriously precious and a model employer should not convert it to be deceitful and treacherous by playing a game of chess with their seniority. A sense of calm sensibility and concerned sincerity should be reflected in every step. An atmosphere of trust has to prevail and when the employees are absolutely sure that their trust shall not be betrayed and they shall be treated with dignified fairness then only the concept of good governance can be concretized. We say no more."
Page 40 of 63 OA No.139/2016We are constrained to note that the respondents have not lived up to the standards of a model employer to the extent required in dealing with the case of the applicant, for decisions ascribed to respondents in paras supra, evaluated against the verdict referred to.
Going further, it was contended by the applicant that when it came to DR outsiders, swapping was confined to the batch and for reserved community officers, it was as per roster covering batches as laid down in the 8 principles adopted for distribution by the PS Committee, which have been extracted in the later part of the judgment. The core swapping guidelines are reproduced hereunder:
(i) After publishing the list distributing AIR officers between the two successor States a fresh window may be opened to all officers to opt for swapping with another within the same category and in the same grade pay as on 01.06.2014.
(ii) Officers with two years or less service left as on 02.06.2014 whether working or retired after that date may be considered for change of cadre, if they are already not allocated to the cadre of their preference provisionally and if they so represent.
(iii) The following modalities have also been approved by the Competent Authority for giving effect to (a) swapping within the category and in the same grade pay and (b) cadre shift on grounds of marriage:
(a) After publishing the list distributing AIS officers between the two successor States the fresh window may be opened for 15 days for officers to indicate whether they would like to shift to the successor State. While giving such option, the officer concerned would also be asked to indicate whether he/she is seeking the change on the basis of marriage grounds or for any other reason. If the officer is opting on the marriage ground, he/she would be asked to indicate the name of the spouse and the cadre to which he or she has been allotted to.
(b) Such officers who represent for the shift would be arranged in the order of seniority in the respective successor States in terms of category in the respective Grade pay.
(c) Swapping of officers would be done seniority wise from the respective lists of officers of the two successor States who have opted for a change, category-wise in the same Grade Pay.
(d) Those couples who have been allotted to the same cadre would not be allowed the option of swapping based on the ground of marriage. It is made clear at the outset, that if one of the spouse of such couples opts for a change, regardless of the fact that his/ her spouse is in the same cadre, the other spouse would not have the choice to represent later for a shift on marriage grounds.
(e) After the swapping exercise is complete, in accordance with the above, if some of the marriage couples belonging to AIS still remain unadjusted in the same cadre, as per the provisions of the cadre Page 41 of 63 OA No.139/2016 transfer guidelines of the Government of India, the couples would be adjusted in the cadre of their choice."
The reserved community officers, as claimed by the applicant, have the advantage to swap with officers across batches in the roster. Respondents, while appearing before us in OA 1037/2019, have affirmed through the relevant reply statement that, since the number of reserved community officers were few it was decided to allow swapping as per the roster, so that they get reasonable opportunities for getting swapped. While appreciating the gesture of providing the said benefit to the reserved community officers, it would have been commendable had the respondents provided the same benefit to the unreserved too. True to speak, the issue of intrinsic importance to the respondents is to place men in position in a fair manner. It does not matter for the respondents as to who swapped, provided they are eligible. After all swapping is a process of mutual exchange and it would have been expedient for the respondents to be liberal in regard to swapping and if not liberal, at least apply the yardsticks uniformly. The relatable question for the respondents is that, after joining the service, all the IPS officers are on equal footing in respect of promotion, transfer etc and therefore, was it proper to bring in a heterogenic influence on a homogenous group of officers by ushering in artificial elements of division like DR insiders & outsiders, reserved & unreserved etc. when it came to distribution of officers in pursuance of the bifurcation of the composite State of A.P. In particular, when the very same respondents allowed DR-UR officers of AIS to swap across batches as per U.C. Aggarwal Committee at the time of bifurcation of Bihar, M.P and U.P. as per their replies in different other OAs filed before the Tribunal. The AIS officers form a homogenous group governed by the same AIS rules, be they in any State Cadre or in the service of the Union. Respondents cannot apply one yard stick to the same group of AIS at the time of bifurcation of UP/MP/ Bihar and a different one when it came to bifurcation of A.P. Law abhors such discrimination. Defacto, Hon'ble Supreme Court in D.S. Nakara has disapproved such artificial segmentation of a homogeneous group. A similar matter relating to cadre allocation was discussed in OA 1037/2019, at length by this Tribunal and held the discriminative application of swapping principle to the DR-UR outsiders as not maintainable. The relevant portion of the judgment is extracted hereunder:
"As is seen from the swapping rules seniority has been correctly recognized as an intrinsic aspect in dealing with the distribution among the 2 States as adduced at clause (c) supra. The contention of the applicant is that swapping in respect of SC/ST/OBC was within roster and whereas for U.R outsiders belonging to the DR category it has been confined to the batch. The respondents have explained that in case of OBC outsider category IPS officers, there were only 12 of them from 9 different batches, i.r.o. SC outsider category the number was 11 from 10 different batches and coming to ST outsider category it was 7 from 6 different batches. Therefore, given the lesser number of reserved community officers, swapping across batches to the reserved community officers was allowed, to enhance the swapping probability. When the respondents could think of the concerns of the officers referred to, we fail to understand as to why the same concern was not shown in respect of UR outsider officers in applying the seniority clause to usher in fairness as was envisioned in section 80 (1) (b) of the Act2014.Page 42 of 63 OA No.139/2016
Espousing the cause of one group and paying no attention to the cause of others symbolizes unfairness. Generally it is expected of the respondents to be neutral in furthering the cause of the different groups of employees as held by the Hon'ble Apex Court in S.I. Rooplal & Anr. vs Lt. Governor Through Chief Secretary, Delh on 14 December, 1999 in Appeal (Civil) 5363-64 of 1997, as under:
Before concluding, we are constrained to observe that the role played by the respondents in this litigation is far from satisfactory. In our opinion, after laying down appropriate rules governing the service conditions of its employees, a State should only play the role of an impartial employer in the inter-se dispute between its employees. If any such dispute arises, the State should apply the rules laid down by it fairly. Still if the matter is dragged to a judicial forum, the State should confine its role to that of an amicus curiae by assisting the judicial forum to a correct decision. Once a decision is rendered by a judicial forum, thereafter the State should not further involve itself in litigation. The matter thereafter should be left to the parties concerned to agitate further, if they so desire. When a State, after the judicial forum delivers a judgment, files review petition, appeal etc. it gives an impression that it is espousing the cause of a particular group of employees against another group of its own employees, unless of course there are compelling reasons to resort to such further proceedings. In the instant case, we feel the respondent has taken more than necessary interest which is uncalled for. This act of the State has only resulted in waste of time and money of all concerned.
While one may tend to appreciate the initiative taken by the respondents to address the likely difficulty that would be faced by the reserved community officers in the swapping process, but that has to be permitted under the Act- 2014 and not in contravention of the above judgments of the Hon'ble Supreme Court of being concerned with the difficulty of one group and turning a blind eye to the legitimate difficulties of the others. It can be seen that the guidelines permitted swapping for one group of officials and denied to another group by an irrational classification. To reiterate, an officer belonging to Unreserved category DR quota can swap with an officer belonging to the unreserved category of the same batch, whereas those belonging to the Reserved categories can swap with another officer belonging to his or her category/ community within the roster block which enwebs more than one batch. The guidelines, therefore, do not conform to the norm stated under Section 80(1)(b) of the Act since the guidelines failed to provide fair and equitable treatment to AIS officers to be allotted to two States and that the classification brought out under the guidelines is arbitrary and the classification is not established on the intelligible differentia, which distinguish the offices into two groups and the said differentia does not have any rational relation to the object sought to be achieved and there is no nexus between the basis of classification and the object sought to be achieved. It was equally important for the respondents to Page 43 of 63 OA No.139/2016 allow the swapping across batches for the UR Direct Recruit officers as was followed by U.C. Agarwal Committee to similarly situated AIS officers. Restricting the swapping as was done by the respondents to the DR-UR officers to the batch to which they belong, is discriminatory and arbitrary as well as overwhelmingly injurious to Articles 14 and 16 of Constitution. The decision of the respondents in discriminating the DR-UR officers as explicated in regard to swapping, would thus be difficult for us to uphold and further, would not go well with the decision of the Hon'ble Supreme Court cited supra.
XVI. Once the IPS officers are selected, they form a homogeneous group and when the concern of one section of the group is being addressed the same concern need to have been shown to others by applying the well- established principles of seniority ordained in service law. In Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, at page 490, the Hon'ble Apex Court has held that a backward class entrant cannot be given less privileges because he has entered through easier ladder and similarly a general class candidate cannot claim better rights because he has come through a tougher ladder. After entering the service through their respective sources they are placed on equal footing and thereafter there cannot be any discrimination in the matter of promotion. Both must be treated equally in the matters of employment after they have been recruited to the service. Any further reservation for the backward class candidate in the process of promotion is not protected by Article 16(4) and would be violative. The relevant para of the judgment is extracted hereunder:
379. Constitution of India aims at equality of status and opportunity for all citizens including those who are socially, economically and educationally backward. If members of backward classes can maintain minimum necessary requirement of administrative efficiency not only representation but also preference in the shape of reservation may be given to them to achieve the goal of equality enshrined under the Constitution. Article 16(4) is a special provision for reservation of appointments and posts for them in government services to secure their adequate representation. The entry of backward class candidates to the State services through an easier ladder is, therefore, within the concept of equality. When two persons one belonging to the backward class and another to the general category enter the same service through their respective channels then they are brought at par in the cadre of the service. A backward class entrant cannot be given less privileges because he has entered through easier ladder and similarly a general class candidate cannot claim better rights because he has come through a tougher ladder. After entering the service through their respective sources they are placed on equal footing and thereafter there cannot be any discrimination in the matter of promotion. Both must be treated equally in the matters of employment after they have been recruited to the service. Any further reservation for the backward class candidate in the process of promotion is not protected by Article 16(4) and would be violative.
Though the issue in the above verdict was in relation to promotion, the legal principle that has been laid down is that there cannot be any distinction/ Page 44 of 63 OA No.139/2016 discrimination in allowing the benefits to the officers of homogeneous group. Therefore, the respondents' approach in regard to permitting swapping across batches in regard to reserved community officers, but not to unreserved officers, is not in tandem with the above judgment of the Hon'ble Apex Court cited supra.
XVII. Respondents not showing similar concern in respect of the UR officers, is the root cause of the dispute in the instant case. Applying arguably favorable standards to a part of a homogeneous group and not to others is impermissible under law as they offend Articles 14 & 16 of the Constitution. The distinction in regard to the insider/outsider/ promotee/ DR/ reserved community melts once the officers are selected to the IPS and allotted a given cadre. They form a homogenous group and their future career prospects are accordingly regulated. The guidelines issued based on U.C. Agarwal Committee recommendations to distribute AIS officers of Bihar, M.P and U.P and those pursuant to Prathyush Sinha Committee for distribution of AIS officers of the composite State of A.P. under relevant acts, were approved by a common authority namely DOPT. The commonality was dealing with the service conditions of the homogeneous group of AIS officers and without a legal basis a classification was made by laying down different guidelines. At least in core areas which have a legal implication, there has to be uniformity like in respect of Principle of Seniority, swapping etc. Disregarding the uniformity and creating classification as explained, would not be constitutional since it infringes Articles 14 and 16 of the Constitution of India. Albeit, the policy of reservation is constitutionally recognized and upheld by the Hon'ble Apex Court, the said policy applies to appointments, promotion and not for distribution of the officers' consequent to bifurcation of States. Reclassifying a homogeneous group of AIS officers, belonging to different States and among those belonging to the same State, like in the instant case, as reserved and unreserved in extending certain benefits, while distributing AIS officers among the 2 states with no rationally discernable principle goes against the legal principle laid down in D.S. Nakara & Others vs Union of India on 17 December, 1982 - 1983 AIR 130, 1983SCR (2) 165, by the Hon'ble Supreme Court as under:
With the expanding horizons of socio-economic justice, the socialist Republic and welfare State which we endeavour to set up and largely influenced by the fact that the old men who retired when emoluments were comparatively low and are exposed to vagaries of continuously rising prices, the falling value of the rupee consequent upon inflationary inputs, we are satisfied that by introducing an arbitrary eligibility criteria: being in service and retiring subsequent to the specified date; for being eligible for the liberalised pension scheme and thereby dividing a homogeneous class, the classification being not based on any discernible rational principle and having been found wholly unrelated to the objects sought to be achieved by grant of liberalised pension and the eligibility criteria devised being thoroughly arbitrary, we are of the view that the eligibility for liberalized pension scheme of being in service on the specified date and retiring subsequent to that date; in impugned memoranda, Exhibits P-I and P-2, violates Art. 14 and is unconstitutional and is struck down.Page 45 of 63 OA No.139/2016
The artificial classification of a homogeneous group was struck down by the Hon'ble Apex Court which has an indisputable implication to the dispute under adjudication. Respondents reclassifying the homogeneous group based on the recommendations of the P.S. Committee, reserved unreserved, DR outsider v DR insider/promotee, for the purpose of distribution of the AIS officers, as discussed in paras supra, is thus not in accordance with law. More so, when the AIS officers are governed by the AIS Act 1951, they form a homogeneous group though they may be serving different State Governments or within the same State. The U.C.Agarwal Committee dealt with a similar issue of distribution of cadre of the AIS officers under the same AIS Act and the relevant bifurcation Act of 2000. The U.C. Agarwal committee recommendations largely apply to the homogeneous group of AIS officers whether they belong to the States of UP, MP & Bihar or A.P and therefore, it is difficult to appreciate the reasons for not adopting the core principles pertaining to roster block, seniority etc which were given due credence by Agarwal Committee. It is not out of place to observe that the same respondents in a similar issue concerning IPS cadre allocation have filed a reply statement in OA174/2020 in November 2020 to acclaim that they have followed the process adopted in maintaining rosters for allocation of cadres as was adopted during the bifurcation of the States referred to. Therefore, the very same respondents, in particular, R-1 and R-2 taking a contrary stand in the instant OA, is a self-defeating proposition. Similarly placed persons are to be treated identically as has been observed in 5th CPC report as at para 126.5 Accordingly, we recommend that decisions taken in one specific case either by the judiciary or the Government should be applied to all other identical cases without forcing other employees to approach the court of law for an identical remedy or relief. We clarify that this decision will apply only in cases where a principle or common issue of general nature applicable to a group or category of Government employees is concerned and not to matters relating to a specific grievance or anomaly of an individual employee."
The decisions taken in U.C. Agarwal Committee to permit swapping across batches for UR officers who are similarly placed like the applicant could have been normally extended without forcing the later to approach the Tribunal. The contentious issues flagged by the applicant are common issues applicable to the DR outsiders and therefore the respondents should have reviewed the guidelines to the extent required to remove angularities and make them fall in line with the legal principles discussed so far in the above paras. The P.S Committee recommendations need necessarily have to be within the purview of law and not beyond.
Further, the Hon'ble Apex Court has explained the significance of equality guaranteed by Articles 14 and 16 of the Constitution by laying down tests for determining the constitutional validity of a classification, which is of utmost relevance to the case on hand, in a catena of judgments wherein it was held that Article 14 prohibits class legislation and not reasonable classification. The Hon'ble Supreme Court in respect of classification held that when two employees are a part of the same cadre/ rank, they cannot be treated differently for the purpose of pay and allowances or other conditions Page 46 of 63 OA No.139/2016 of service in Union of India and others vs. Atul Shukla and others - (2014) 10 SCC 432.
A classification passes the test of Article 14 only if:
(a) there is an intelligible differentia between those grouped together and others who are kept out of the group; and
(b) there exists a nexus between the differential and the object of the legislation.
The classification done by the respondents in the instant case does not pass both the tests and hence the synthetic classification attempted by the respondents is illegal.
We take support of the observations of the Hon'ble Apex Court in regard to tests of classification and associated issues in State of W.B. v. Anwar Ali Sarkar [AIR 1952 SC 75], Ram Krishna Dalma v.S.R. Tandolkar (AIR 1958 SC 538), Lachhman Das v. State of Punjab[AIR 1963 SC 222], E.P. Royappa v. State of T.N. (1974)4 SCC 3,Maneka Gandhi v. Union of India [(1978) 1 SCC 248], Subramanian Swamy v. CBI (2014) 8 SCC 682, to substantiate the view, we held as at above.
To be precise furthermore, the underlying principle is that, so long as the officers are a part of the cadre, their entry, based on how they joined the AIS cadre, is immaterial in distributing the officers on bifurcation. They must be treated as equals in all respects once they join the cadre. It cannot be gainsaid that equals shall be treated as equals in service matters after joining the AIS. It requires no reiteration that once several persons have become members of AIS they essentially become equals as per the provisions of constitution. Preferential treatment in the distribution of a group of AIS officers on bifurcation of States tantamount to treating equals as unequals. The Hon'ble Apex Court judgment in State of A.P v Nalla Raja Reddy (1967) 3 SCR 28 cited by the applicant, lays down the above principle succinctly by holding that equals have to be treated equally and even treating unequals as equals is discrimination. The said judgment aptly applies to the case of the applicant, since various members of a group after recruitment and joining the service as AIS officers integrate into one common group for the purpose of distribution and are equals. Treating the unequals namely the senior (Applicant) and the Junior (A. Sabarwal) as equals in allotment by applying the roster theory, in service matters, as was done in the instant case by the respondents, is not in line with the above judgment.
Besides, the doctrine of classification is a subsidiary rule evolved by the superior Judicial fora to give a practical content to the said doctrine. An unrelenting attempt to discover some basis for classification, where not called for, may deprive Article 14 of its magnificent content. The respondents have done an unjust classification in the instant case which is against the observation of the Hon'ble Apex Court in Lachhman Das supra. A pragmatic approach has to be adopted to harmonize the requirements of public services, as emphasized by the respondents in regard to AIS officers serving the Union and in any of the States, with the Legitimate expectations of AIS officers. Evolving a theory of classification to subvert the precious Page 47 of 63 OA No.139/2016 guarantee of equality, by heterogenization of a homogenous group, without any legal backing smacks of unlawfulness.
Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment as is required under section 80 of the Act 2014. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality, pervades Article 14 like a brooding omnipresence. Fairness and equality were expressively derided by ushering in an arbitrary classification among the AIS officers by the respondent's, and therefore Article 14 & 16 require, comprehensively striking down such a decision.
In addition we must add that on an issue of intrinsic importance, involving members of the premium services of the country, lot of thought would have gone into the decision making process. While translating the thoughts into action, the application of mind to reason out the decision is essential. We are of the view that there has been lack of application of mind even though they had relevant material to permit swapping of DR outsiders across batches as per U.C. Agarwal Committee recommendations, starring at them with all the vividness as required. Even then, not permitting swapping across batches represents lack of application of mind and the decision so taken is manifestly erroneous as observed by the Hon'ble Apex Court in Rajeev Suri v. Delhi Development Authority & Ors in Transferred Case (Civil) No.229 of 2020 with Transferred Case (Civil) No. 230 of 2020 in Civil Appeal No.... of 2020 (Arising out of S.L.P. (Civil) No...../2020) (@ Diary No. 8430/2020) on 05.01.2021, by referring to its own judgment in Reliance Airport Developers (P) Ltd. v. Airports Authority of India & Ors in (2006) 10 SCC (1), as under:
The Court further added the grounds of non-application of mind to relevant factors and non-existence of facts and noted thus:
"57. ...If the power has been exercised on a non-consideration or non- application of mind to relevant factors, the exercise of power will be regarded as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated ..."
Therefore, the guideline restricting DR UR outsiders to swap across batches is conclusively flawed in the light of the Hon'ble Apex Court verdicts referred to above. It is not out of place to note that the respondents have not given any reasons for introducing the concept of swapping after the allocations were done. The swapping procedure could have been a part of the allocation guidelines, since they assimilate with the allocation process seamlessly. Introducing them later, have made respondents susceptible to questions about its genuine utility in ensuring that the process is fair and transparent as was contemplated to be. The respondents need to have reasoned out the cause for the time lag since we have seen such questions raised in cadre allocations in different OAs which were adjudicated by us and some of the OAs are referred to in the course of our judgment."
Page 48 of 63 OA No.139/2016VI. Principle of seniority ignored.
The restriction of seeking swapping only within the batch has restrained the applicant to get swapped with Sri S.Bajchi of 1996 IPS batch.
However, in view of the constraint framed in the swapping guidelines, Sri S.Bajchi approached Smt. Ritu Mishra of 1996 batch and got swapped, leaving the applicant high and dry though he is senior. We had occasion to deal with this anomaly in a similar issue of cadre allocation, while adjudicating OA 1037/2019 dated 26.04.2021, and held as under. The same holds good even to the case on hand. We further observed therein that the respondents were not consistent in their decision in dealing with the issue of cadre allocation.
XI. Besides, respondents state that the junior to the applicant Sri A. Sabharwal appearing at Sl.45 and the applicant figuring at Sl.44 were placed in the same roster block, of size of 2 officers with both seeking Telangana. As the size of the roster block is 2 which is an even number, applying the formula as at para VIII above, the point of allocation would work out as 2/2+ 1 = 2 and therefore Sri A. Sabharwal though junior to the applicant, was allotted to Telangana. Generally in service matters, as per service law, it is the seniors who are given preference and not the juniors in matters of extending service benefits. Allocation of cadre and its continuance is an issue related to service conditions. Seniority though is not a fundamental right yet it is a civil right and any infringement of the said right would be permitted only if there exists any rules validly framed under a statute. The respondents have not cited any statute governing the service conditions of the applicant to overlook his seniority in distribution of the cadre. Strictly speaking it was not allocation of cadre but it was distribution of the AIS officers between Telangana and RSAP under Act - 2014 which makes all the difference. Allocation is well governed by Cadre Allocation Rules. When it is a case of distribution, seniority should have been given due credence. The guideline of point of allocation based on roster block coupled with seniority would have made Act 2014 harmonious with the provisions of Act 1951. There was no strict construction in the P.S. Committee guidelines as to why seniority has to be overlooked while applying the roster theory. Our above views are based on the observations of the Hon'ble Supreme Court, as under, in State of U.P. and Anr vs Dinkar Sinha on 9 May, 2007 in Appeal (Civil) No.1262 of 2004:
17. Seniority may not be a fundamental right, but is a civil right. [See Indu Shekhar Singh and Ors. v. State of U.P. and Ors., [2006] 8 SCC 129, Bimlesh Tanwar v. State of Haryana and Ors., [2003] 5 SCC 604 Page 49 of 63 OA No.139/2016 and Prafulla Kumar Das v. State of Orissa, [2003] 11 SCC 614] Infringement of the said right would be permissible only if there exists any rules validly framed under a statute and/ or the proviso appended to Article 309 of the Constitution of India. It cannot act in a vacuum. Any rule taking away such rights would deserve strict construction.
Thus, we are of the view that the guideline of ignoring the seniority and relying only on the point of allocation for distribution of the AIS officers and in particular the applicant, is not convincing. The consequential result following a flawed approach was that the junior to the applicant Sri A. Sabarwal was given Telangana though the applicant has also sought the same State. In fact, Act - 2014 has a specific clause under section 76 (5) stating that the provisions in the said Act should be deemed to be not contrary to the provisions of the AIS act 1951. In other words, the aspect of seniority as envisaged in the AIS Act and the relevant Rules under the Act cannot be glossed over. Above all, the legal principle laid by the Hon'ble Apex Court as at above has not been adhered to.
The importance of seniority was emphasized by the Hon'ble Apex court in respect of confirmation and promotion in Bal Kishan v. Delhi Admn. & Anr., 1989 Supp (2) SCC 351, as extracted hereunder. We are of the view that cadre allocation/distribution is as important as confirmation or promotion. Once an AIS officer is allotted to a particular State, then his entire career would be spent in that State and indeed, his youthful years and years close to the grave, in the allotted State. Such being the significance of distribution of AIS officers, we are surprised that the P.S Committee could ignore the seniority principle which is the foundation for building a service career. In fact in the cited judgment of the Hon'ble Apex Court it was held that deviation from the seniority principle would be demoralizing.
9. In service, there could be only one norm for confirmation or promotion of persons belonging to the same cadre. No junior shall be confirmed or promoted without considering the case of his senior. Any deviation from this principle will have demoralizing effect in service apart from being contrary to Article 16(1) of the Constitution.
XII. In sharp contrast, we do observe that when it came to swapping of officers in the allocation process, the principle of seniority has-been recognized and swapping was resorted to, basing on seniority along with allied conditions. We are surprised as to what prevented the respondents to induct and leverage the principle of seniority in the roster block based allocation, when there are 2 similarly placed officers seeking the State of Telangana in the same roster block. Interestingly respondents invoked the Principle of seniority when it came to swapping of officers, which is discussed in the later part of the judgment. Same rule applied differently to a common issue would not withstand the rigors of legal scrutiny since it smacks of arbitrariness. Therefore, there is no consistency in the decision making process involving the movement of officers involving roster block and the swapping methodology. Administrative decisions have to be consistent when the issue to be dealt is common. In fact, consistency is a virtue as held by the Hon'ble Apex Court in State of Karnataka vs K. Umadevi, (2006) 4 SCC 1 at para 20).
"Consistency is a virtue'' Page 50 of 63 OA No.139/2016 Such virtue was not exhibited by the respondents while laying down and applying down the guidelines.
XIII. Assuming for a moment, that it was an error in not considering seniority in the distribution of cadre as per the roster blocks, the legal recourse available to the respondents was to at least ensure consistency in the assumed error even in swapping as held by the Hon'ble Apex Court in State of Mysore v. R.V. Bidap, (1974) 3 SCC 337, as under:
It is apt to remember the words of Rich, J.:
"One of the tasks of this Court is to preserve uniformity of determination. It maybe that in performing the task the Court does not achieve the uniformity that was desirable and what uniformity is achieved may be uniformity of error. However in that event it is at least uniformity".
Consistency in judgments is not only for Courts but the administrative authorities in decision making since their action has to be necessarily in Public interest. Being inconsistent would mean that the decision making process has been vitiated by arbitrariness."
VII. Legal right to approach the Tribunal Respondents claimed that the applicant waited for the OAs on the issue to be disposed favourably to file the present OA, indicating that it is not his grievance which has led to the filing of the OA but the decision of Tribunal which prompted him to do so. Under the Constitution, any Indian Citizen can approach the court if any of his legal rights have been infringed as permitted under law. Therefore, the timing of the filing of the OA is not important and that the issue of relevance has to be examined is as to whether his legal right of being allotted to the State of Telangana has been properly dealt in accordance with rules and law. If not, he can approach to seek legal remedy from an appropriate legal forum within the time stipulated, which the applicant has done. Hence the contention of the respondents is amusing and requires no serious attention.
Page 51 of 63 OA No.139/2016VIII. Liability to serve any part of the country.
Respondents state that the Act-2014 has not violated AIS 1956 Act and that in terms of Article 312 of the Constitution, applicant is liable to serve the Union or the State to which he has been allotted as per rules framed by DOPT, thereby he cannot have a grievance that the State sought by him has not been allotted. There can be no two views on the need to serve under the Union or in the State to which the officer selected is allotted. However, the allotment has to be made in a fair and equitable manner in accordance with rules and law. When it is not done, the AIS officer has every right to agitate before the appropriate legal forum, as in the instant case where we found many slips between the cup and the lip in the decision making process of allotting officers among the 2 States as per Act-2014. Respondents, we are sure, would appreciate that they cannot indulge in exercise of power in an unconstitutional manner; causing adverse civil consequences to those it matters. Judicial review is all about ensuring that the relevant checks and balances formulated are acted upon, so that justice is upheld in all its glory. The instant case is one warranting judicial review in view of the deviant decisions of the respondents which are not legally sustainable as is evident from the thoughtful reflections in the above paras. Therefore, the contention of the respondents that the allocation of the applicant to RSAP is as per guidelines and the applicant without pointing out any deviation of the application of the guideline to his case, has made an unreasonable argument that others got relief from the Tribunal and therefore he need to, lacks substance. Just as the applicant has the responsibility to serve in any part of the country so too , the respondents Page 52 of 63 OA No.139/2016 have a responsibility to allot the applicant to the State to which he is legally entitled to be allotted.
IX. Judgments referred to by the Respondents The judgment of the Hon'ble Apex Court in Union of India and Others v. Rajiv Yadav, IAS and Others, (1994) 6 SCC 38 was cited by the respondents to assert that a candidate selected for AIS has no right to seek a particular cadre. True seeking a particular cadre is not a right as laid down by the Hon'ble Apex Court. However, the process of cadre allocation, which is the singular responsibility of the respondents, should be fair, equitable and after proper consideration of the representations of the stake holders. In the instant case the 3 crucial elements cited are missing in the respondents decision to ignore the claim of the applicant for the State of Telangana. Hon'ble Supreme Court in its own judgment in C.M. Thri Vikrama Varma v. Avinash Mohanty and Others, (2011) 7 SCC 385, has held that a selected candidate has a right to fair and equitable treatment in the matter of allocation under Articles 14 & 16 of the Constitution. We had occasion to deal with this aspect in OA 174/2020 dated 26.04.2021, wherein it was again the cadre allocation of an IPS officer which was under challenge. In the said OA, Tribunal has held that the Hon'ble Apex Court judgment cited by the respondents, would not come to their rescue, by observing as under:
"XVI. The main forte of defense of the respondents is reliance on the Hon'ble Supreme Court judgment in Union of India and Others v. Rajiv Yadav, IAS and Others, (1994) 6 SCC 38, wherein it was held as under:
6. ... 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 Page 53 of 63 OA No.139/2016 cadre of his choice or to his home State. Allotment of cadre is an incidence of service. A member of an all-India Service bears liability to serve in any part of India.
Hence the respondents assert that in accordance with the above judgment the applicant has no right to seek a cadre of his choice. However, in C.M. Thri Vikrama Varma v. Avinash Mohanty and Others, (2011) 7 SCC 385, the Hon'ble Supreme Court while dealing with a dispute relating to cadre allocation on the basis of a declared policy contained in the letter dated 31.05.1985, has held that a member appointed to an All India Service has no right to any particular State cadre, or a joint cadre. He has a right to fair and equitable treatment in the matter of allocation under Articles 14 & 16 of the Constitution. The Hon'ble Supreme Court agreed with the finding of the Hon'ble High Court that allocation made in violation of the guidelines contained in the declared policy vide letter dated 31.05.1985 was arbitrary and not equitable. The Hon'ble Supreme Court also rejected the defense of the Government that the complexity of the decision making process, i.e. allocation of cadres, cannot be a defense when a grievance is made before a Court by a citizen that his fundamental right to equality has been violated. From the judgment the legal principle that emerges is that the right to fair and equitable treatment in cadre allocation under Article 14 & 16 of the Constitution cannot be unheeded to by trespassing the rules and policy. Therefore, it is the desecration of CAP- 2008 and the IPS cadre rules vis-à-vis the applicant resulting in action violative of Articles 14 & 16 of the Constitution which calls for the intervention of the Tribunal to undo the wrong done to the applicant. Thus in view of its own later judgment of the Hon'ble Apex court in C.M. Thri Vikram Verma as at above, the judgment in Rajiv Yadav relied upon by the respondent may not be of much assistance to the respondents. The other judgment cited by the respondents is of the Hon'ble Apex Court in U.O.I v Mhathung Kithan & ors wherein it has been held that at least 66.2/3% of the DR (Direct Recruit) allocated to a State should be from outside the State. There is no dispute in this regard, but what is disputed is how well the respondents have followed the rules and policy guidelines in cadre allocation to a DR outsider candidate to the State of Telangana. Therefore, the cited judgment lacks relevance to the dispute and would not be of much help to the respondents to further their case."
The other judgment relied upon by the respondents was of the Hon'ble Supreme Court in Mallikarjuna Rao & Ors. v. State of AP, 1990 (2) SCC 707 to assert that the Courts should not give directions to the executive on matters which are totally under their jurisdiction. Even this contention was fully addressed by this Tribunal in OA 422/2016 in an identical dispute and held that the judgment cited would not be of any Page 54 of 63 OA No.139/2016 assistance to the respondents. The relevant paragraphs are extracted here under:
XI. Respondents did rely upon two judgments of the Hon'ble Supreme Court viz., Mallikarjuna Rao & Ors. v. State of AP, 1990 (2) SCC 707 to assert that the Courts should not give directions to the executive on matters which are totally under their jurisdiction and Union of India v Rajiv Yadav, 1994 (6) SCC 38 to affirm that a selected candidate has no right to be allocated to a particular cadre.
The relevant para cited by the respondents in Mallikarjuna verdict is extracted here under:
"...It is neither legal nor proper for the High Courts or the Administrative Tribunals to issue directions or advisory-sermons to the executive in respect of the sphere which is exclusively within the domain of the executive under the constitution. Imagine the executive advising the judiciary in respect of its power of judicial review under the constitution. We are bound to react scowlingly to any such advice.
This Court relying on Narender Chand Hem Raj & Ors. v. Lt. Governor, Union Territory, Himachal Pradesh & Ors., [1972] 1 SCR 940 and State of Himachal Pradesh v. A parent of a student of medical college, Simla and Ors., [1985] 3 SCC 169 held in Asif Hameed & Ors. v. State of Jammu & Kashmir & Ors., [1989] Supp. 2 SCC 364, as under:
"When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the constitution and if not, the court must strike-down the action. While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a coordinate branch of the Government. While exercising power-of judicial review of administrative action, the court is not an appellate authority. The constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the constitution lies within the sphere of legislature or executive."
It can be seen from the judgment that the role of the Court is to assess as to whether the action of the respondents is in accordance with law and to ensure that the executive has acted within the powers and functions assigned. If not, strike down the action. By telescoping the directions of the Hon'ble Apex Court on to the case of the applicant we observe many infirmities as pointed out in the preceding paras like the PS Committee releasing the guidelines and the allocation of officers on the same date, the very constitution of the PS committee was vitiated with the inclusion of Sri P.K. Mohanty as a member who had conflicting interests as discussed in the succeeding paras, applying different yardsticks to a homogeneous group of AIS officers, not following the Principles of reservation, violating the Principles of Natural Justice by not disposing the representation and so on. The list of inadequacies are so widespread that we do not burden the judgment by repeating them and it would suffice to observe that they have been brought out in abundance in the preceding paras. Hence as we Page 55 of 63 OA No.139/2016 found that the respondents have not acted in conformity with the rules/ functions assigned / law, the judgment cited is indeed in favour of the applicant. Resultantly, the judgment relied upon by the respondents would not come to their rescue.
De facto, the same judgment was cited by the same respondents, in their reply statement in OA 174/2020, dealing with a similar issue of cadre change of an IPS officer, wherein, we have observed as under:
"In fact, respondents have relied on the judgment of the Hon'ble Supreme Court in Mallikarjuna Rao v State of A.P to assert that the courts should not interfere in policy matters as under:
While exercising power of judicial review of administrative action, the court is not an appellate authority. The constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the constitution lies within the sphere of legislature or executive. The Special Rules have been framed under Article 309 of the Constitution of India. The power under Article 309 of the Constitution of India to frame rules is the legislative power. This power under the constitution has to be exercised by the President or the Governor of a State as the case may be. The High Courts or the Administrative Tribunals cannot issue a mandate to the State Government to legislate under Article 309 of the Constitution of India. The Courts cannot usurp the functions assigned to the executive under the constitution and cannot even indirectly require the executive to exercise its rule making power in any manner.
Respondents also cited the verdict of the Hon'ble Supreme Court in Tata Cellular V U.O.I (JT) 1994 (4) SC 532, to drive home the same point of non- intervention of Courts in policy matters.
In the instant case, we are not finding fault with the policy but are bringing out the fault lines in implementing the policy by the respondents. Judicial review is about the decision making process and the implementation of the decision and not about the decision. We are not questioning the policy, but when the policy does not provide for a clause to allot a vacancy for continuity of service, invoking such a clause is a gross infringement of the policy. True to speak it is a colourable exercise of power. Indeed, in the very same judgment it was held by the Hon'ble Apex Court, as under:
This Court relying on Narender Chand Hem Raj & Ors. v. Lt. Governor, Union Territory, Himachal Pradesh & Ors., [1972] 1 SCR 940 and State of Himachal Pradesh v. A parent of a student of medical college, Simla and Ors., [1985] 3 SCC 169 held in Asif Hameed & Ors. v. State of Jammu & Kashmir & Ors., [1989] Supp. 2 SCC 364, as under:
When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the constitution and if not, the court must strike-down the action.
The State action has to be in accordance with the powers and functions assigned to it as per law referred to above. Respondents have not acted within the powers and functions assigned to them by invoking a non-existent clause in the policy.Page 56 of 63 OA No.139/2016
Breach of the policy referred to is violation of law and is unconstitutional and hence, the Tribunal has to step in to strike down the action. "
Even in the instant case, the respondents have acted in a manner violating Section 80 (b) of the Act -2014 and not in consonance with the legal principles laid down by the superior judicial fora as discussed in the preceding paras. Hence the cited judgment would not be of any help to the respondents to sail safely to the shore."
X. Scope for granting relief When it comes to granting relief, it is incumbent on part of the Tribunal to follow the legal principle laid by the Hon'ble Apex Court in Somesh Tiwari v U.O.I & Ors in CA No.7308 of 2008 as under, which was cited in OA 230/2020 dated 09.11.2020, for granting relief in a similar dispute of cadre allocation of an AIS officer. The relevant para of the cited OA, touching upon the judgment of the Hon'ble Apex is extracted here under:
"XXXI. Keeping in the view the contentions made by either parties and the aforesaid discussions, when it comes to grant of relief, we would like to extract the observations of the Hon'ble Supreme Court in Somesh Tiwari v U.O.I & Ors in CA No.7308 of 2008, as under, which squarely covers the case of the applicant. We would like to take a leaf out of the said judgment, in formulating the relief in the instant case.
"27. This Court in Commissioner, Karnataka Housing Board v. C. Muddaiah, [(2007) 7 SCC 689] laid down the law, thus:-
"32. The matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the Court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the Court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a Court of Law. The Court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The Court, in the circumstances, directs the Authority to extend all benefits which he would have obtained had he not been illegally deprived of them. Is it open to the Authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount Page 57 of 63 OA No.139/2016 to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged."
To begin with, after having acquainted ourselves with the topography of the case along with its wide angled angularities and having legally analysed the details of the case to its minute detail, we have no hesitation to hold that injustice has been done to the applicant in the allocating Telangana instead of the successor State of A.P as the cadre of the Applicant. Xxxxx"
In the instant case, respondents have not conceded to the request of the applicant by not adhering to the provisions of Section 80 of the Act 2014 and were found to infringe the terms of reference to the PS Committee as well as there was discrimination in the application of the swapping norms, accompanied by the disregard to the Principles of Natural Justice.
Therefore, from the facts of the case and our observations over different relevant issues, taking support of the judgments of the Hon'ble Apex Court and that of this Tribunal, we have no hesitation that injustice will be caused to the applicant if the relief sought by him is not granted.
XI. Penalizing the applicant for the fault of the respondents After going through the eventful history of the case, we find that the respondents are penalizing the applicant by committing a plethora of mistakes on their part, as was brought out in paras supra, in not taking decisions in accordance with law. The mistake of the respondents should not recoil on to the applicant and thereby deny the legitimate relief he has sought. In stating what we did, we take support of the Hon'ble Apex Court in a catena of judgments as under:
The Apex Court in its judgment dt. 14.12.2007 (Union of India vs. Sadhana Khanna, C.A. No. 8208/01) held that the mistake of the department cannot recoil on employees. In yet another recent case of M.V. Thimmaiah vs. Page 58 of 63 OA No.139/2016 UPSC, C.A. No. 5883-5991 of 2007 decided on 13.12.2007, it has been observed that if there is a failure on the part of the officers to discharge their duties the incumbent should not be allowed to suffer. (iii) It has been held in the case of Nirmal Chandra Bhattacharjee v. Union of India, 1991 Supp (2) SCC 363 wherein the Apex Court has held "The mistake or delay on the part of the department should not be permitted to recoil on the appellants."
XII. Precedents by Coordinate Benches While adjudicating the disputed issue we had freely drawn on the observations of the Tribunal in different OAs dealing with identical disputes. The observations of the Tribunal were banked on the remarks of the superior judicial fora. Defacto, the Tribunal has covered many other aspects which have not been raised in the present OA but are absolutely relevant to the dispute in question. However, referring to all those findings in the present case would burden the judgment with too much detail. It would suffice that the comprehensive findings of the Tribunal in OA Nos.
1241/2014, 422/2016, 1037/2019, 230/2020 & 174/2020, which were disposed of with a positive finding, squarely cover the case of the applicant.
It is well settled in law that the Coordinate Bench findings are binding as held by the Hon'ble Supreme Court in Rooplal & Anr. vs. Lt. Governor Through Chief Secretary, Delhi on 14 December, 1999, Appeal (Civil) 5363-64 of 1997. This dimension of the issue was covered in OA 422/2016 dated 19.07.2021, as under:
"XVII. It is not out of place to state that the coordinate benches of this Tribunal have examined the legitimacy of the guidelines framed by the PS committee in OAs 01241/2014, dated 29.03.2016,230/2020 dated 9.11.2020, 01037/2019 dated 26.4.2021 & 0174/2020 dated 26.4.2021 and arrived at a conclusion that they are arbitrary, discriminative and hence legally invalid. However, the same were not set aside in totality since it would set the clock back and cause administrative logjam in a large scale. Following the ratio laid down by the Hon'ble Apex Court in Rooplal & Anr. vs. Lt. Governor Through Chief Secretary, Delhi on 14 December, 1999, Appeal (Civil) 5363-64 of 1997, extracted hereunder, we are bound by the observations in the cited OAs and Page 59 of 63 OA No.139/2016 therefore we too hold the guidelines legally not tenable, but such untenableness we confine it to the case of the applicant, in order not to cause any turmoil in the administrative arena.
"At the outset, we must express our serious dissatisfaction in regard to the manner in which a coordinate Bench of the tribunal has overruled, in effect, an earlier judgment of another coordinate Bench of the same tribunal. This is opposed to all principles of judicial discipline. If at all, the subsequent Bench of the tribunal was of the opinion that the earlier view taken by the coordinate Bench of the same tribunal was incorrect, it ought to have referred the matter to a larger Bench so that the difference of opinion between the two coordinate Benches on the same point could have been avoided. It is not as if the latter Bench was unaware of the judgment of the earlier Bench but knowingly it proceeded to disagree with the said judgment against all known rules of precedents. Precedents which enunciate rules of law form the foundation of administration of justice under our system. This is a fundamental principle which every Presiding Officer of a Judicial Forum ought to know, for consistency in interpretation of law alone can lead to public confidence in our judicial system. This Court has laid down time and again precedent law must be followed by all concerned; deviation from the same should be only on a procedure known to law. A subordinate court is bounded by the enunciation of law made by the superior courts. A coordinate Bench of a Court cannot pronounce judgment contrary to declaration of law made by another Bench. It can only refer it to a larger Bench if it disagrees with the earlier pronouncement."
Following the observations of the coordinate benches on the subject and also against the background of the discussions we attempted regarding the contentious issues relevant to the dispute, we hold the decision of the respondents to allot RSAP as invalid. As similar matters were dealt in various hues by the Tribunal in the OAs referred to, we could have declared that the instant OA is a covered one and rendered our verdict, however, in the interest of justice we have gone through the details of the case minutely to touch upon aspects which did not appear in other cases as well as banked on the relevant findings of this Tribunal on the theme to arrive at a conclusive conclusion that injustice was done to the applicant.
To sum up, we observe that the respondents have violated the Principles of Natural Justice by not disposing the representations made though provided for under Act-2014, adopted a discriminative approach while dealing with the case of Sri Vijay Kumar with whom the applicant proposed to swap, unnatural segmentation of a homogeneous group of AIS officers was attempted in applying the guidelines, Principle of reservation was not followed, arbitrarily initiated the allocation from RSAP without following the lottery system, applying the roster blocks where not required, Public interest was not given credence, Principles of Seniority were selectively applied without applying them uniformly for different parameters taken for consideration and hence the approach was found irrational , PS committee did not follow TOR, sections of the Act-2014 were not adhered to and to top it the constitution of the PS committee was found to be illegal and hence its recommendation lacked legality. Thus with innumerous infirmities Page 60 of 63 OA No.139/2016 embedded in the decision making process of the respondents, we have no hesitation to hold that the decision of the respondents to disregard the request of the applicant for allotting Telangana cadre as arbitrary, discriminative, unreasonable and illegal."
Based on the observations made in different OAs cited as also in the instant OA, the guidelines laid down by the PS Committee are liable to be set aside as they were found to be arbitrary, discriminative, irrational, illegal and for lack of application of mind. However, such a direction at this stage with the passage of 7 years after the guidelines were instituted would lead to derailment of the administrative machinery. Hence, keeping the said difficulty in view, we intend to only set aside the order of the respondents to the extent of allocating the applicant to RSAP.
XIII. The other contentions of both the parties were gone through and since they have no say on the outcome, the same have not been commented upon.
XIV. Before parting, we need to observe that the respondents based on their several decisions, which are not legalistic have refused to grant the relief sought which was legally permissible and hence, we are obligated to observe that the negation is illegal and requires to be removed. The role of the Tribunal is to remove the illegality lest, it would become lawful in the words of his Lordship Justice Sri Krishna Iyer in Maneka Gandhi case [1978 AIR 597], as under:
"Lawful illegality could become the rule, if lawless legislation be not removed"Page 61 of 63 OA No.139/2016
XV. Conclusion:
In view of the aforesaid circumstances, it is evident that the law is in favour of the applicant and hence, relief sought has to be granted.
Consequently, the impugned notification dated 5.3.2015 to the extent of allocating the applicant finally to RSAP is set aside. The Coordinate Benches of this Tribunal in OA Nos.1241/2014, 1037/2019, 422/2016, 230/2020 & 174/2020, have directed the respondents to treat the applicants therein as AIS officers of the Cadre they claimed, in identical cases where disputes in regard to allocation of cadre consequent to bifurcation of the State were adjudicated upon. Abiding by the legal axiom laid in Rooplal cited supra, we need to issue a similar direction. Therefore, in pursuance of the cited judgments and to maintain judicial discipline as well as decorum, we direct the respondents to treat the applicant in the instant case as an AIS officer of the State of Telangana with consequential benefits as are permissible under the relevant rules/law. Moreover, to accommodate the applicant in the Telangana Cadre, as submitted by the Ld. Counsel for the applicant, there are a number of vacancies available in the State of Telangana in the IPS cadre, which was not refuted. Hence, taking into consideration that the applicant is holding a responsible position under the control of the 3rd respondent, we direct R-3 to make necessary arrangements to relieve the applicant within a period of 12 weeks from the date of receipt of this order and the 4th respondent to issue appropriate posting orders in the meanwhile, with both R-3 & R-4 marking copies of their orders to R-1 & R-2. In view of the prevailing Corona pandemic, Registry of this Page 62 of 63 OA No.139/2016 Tribunal is directed to forward a copy of the judgment by e-mail to all the parties to the extent e-mail addresses provided by them along with serving the manuscript copies as per court procedure.
XVI. With the above direction, the OA is disposed of, with no order as to costs.
(B.V.SUDHAKAR) (ASHISH KALIA)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
evr
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