Central Administrative Tribunal - Delhi
Kuldeep Arya vs Union Of India Through on 1 November, 2011
Central Administrative Tribunal Principal Bench OA No.2528/2010 New Delhi, this the 1st day of November, 2011 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Kuldeep Arya S/o sh. Ramavtar Arya R/o Vill & Post Office Baldhan Kalan Distt. Rewari, Haryana. .. Applicant. (By Advocate : Shri Rishi Singh Gautam) Versus 1. Union of India through Secretary to Government, Ministry of Personnel & Training, Administrative Reforms and Public Grievances and Pensions, Room No.112, North Block, New Delhi. 2. Director of Personnel and Training, (DOPT) government of India, Room No.112, North Block, New Delhi. 3. State of Haryana By Chief Secretary to Government, Haryana Civil Secretariat, Sector-1, Chandigarh. 4. Sh. Yash Garg, IAS Assistant Commissioner, (Under training) C/o Mr. S. K. Garg, Power House Colony, 132 KV Sub Station, Faizalpur, Sonepat 131 001. .. Respondents. (By Advocate : Shri Pramod Kr. Chauhary for Respondent No.1 and Shri Arun Bhardwaj for Respondent No.4) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Shri Kuldeep Arya, belonging to OBC category from Haryana State, the applicant herein, having been successful in the Civil Services Examination (CSE) 2008 with all India rank of 44, was appointed to the Indian Administrative Service [IAS] and was allocated to the Gujarat cadre. In the present OA, it is his case that though he is entitled to the benefits of reservation in the OBC category but having secured high rank he was inducted as general merit candidate. He came to know that there were three vacancies in Haryana IAS cadre to be filled by the IAS Probationers selected in the CSE 2008 out of which the only insider vacancy was allocated to the general category candidate. Applicants father represented through his letter dated 30.102009 (Annexure2) to the first respondent about the discriminatory cadre allocation to the insider general category instead of reserving the said vacancy to the insider OBC candidate. It is the applicants case that he gave his 1st preference to his home cadre namely Haryana but he came to know on 18.01.2010 from the website of the 1st respondent that he was allocated Gujarat cadre. It is averred that prior to 1985, there was a roster system for cadre allocation policy for the IAS and a fresh comprehensive policy on cadre allocation was issued on 30/31.5.1985 (Annexure 4) w.e.f. 1984 called as Limited Zonal Preference System. It is further stated that since 1994 even single OBC candidate has not been allocated in the insider quota for Haryana. His case is that the above fact has been confirmed by the information received from the Department of Personnel and Training (DOPT in short) which is at Annexure 6. It is further his case that from 1994, total 36 candidates have been allocated to Haryana cadre out of which 12 are insider at the ratio of 1:2 between insider and outsider and again it is claimed that out of 12, three candidates should have been allocated to OBC insider but even single insider vacancy has not been allocated to OBC. The applicant feels aggrieved by the action of the respondents as he belongs to OBC category and has not been allocated Haryana cadre despite his 1st preference being Haryana. The Office Memorandum No. 13011/22/2005-AIS(I) dated 10.4.2008 clearly mandates the respondents to observe reservation policy in cadre allocation claim of the applicant. Feeling aggrieved, he has moved this Tribunal in the present OA under Section 19 of the Administrative Tribunals Act, 1985, with the following relief (s):
(a) That the Department of Personnel and Training (DOPT) may be directed that it follow the Office Memorandum No.13011/22/2005-AIS(I) dated 10th April, 2008.
(b) That the Department of Personnel and Training (DOPT) may be directed to notify the insider seat which is allocated to Mr. Yash Garg a general candidate from the batch CSE 2008, as an OBC seat and allocate the same to the applicant.
(c) Pass such or further order which this Honble Tribunal deems just and proper in the ends of justice and in the circumstances of this case.
2. Shri Rishi Singh Gautam learned counsel for the applicant submits that the applicants cadre allocation for the CSE-2008 is in violation of the DOPT OM dated 10.4.2008 as the DOPT failed to undertake the cadre allocation in accordance with the said policy for 200 point running vacancies based roster showing SC, ST, OBC, UR to be maintained for each cadre for determining vacancies for the state of Haryana. His contention is that the said policy provides for determination of insider (I in short) and outsider (O in short) on the basis of respective roster point as O-I-O-O-I-O in order to maintain the proper ratio of 1:2 between insider and outsider. Further it is contended that while allocating cadre the principles of reservation for OBC, SC, ST categories must be followed and that too the cadre allocation policy mandates accounting in the roster points shall commence from 1994 CSE. His argument is that had all the mandated policies on reservation and ratio of insider: outsider quota been followed right from 1994, the insider OBC vacancy would have been allocated to the applicant in Haryana cadre and 4th respondent would not have got Haryana cadre in the CSE-2008. Therefore Shri Gautam urges that necessary direction to the 1st respondent should be issued to notify the insider seat as an OBC seat and allocate the same to the applicant.
3. On receipt of the notice from the Tribunal, the first, third and fourth respondents have entered appearance and filed their reply affidavits on 03.6.2011, 16.11.2010 and 29.8.2011 respectively.
4. Shri Pramod Kumar Chaudhary, learned Senior Central Government Counsel representing the 1st respondent contends that the applicant having been selected in CSE-2008, has a right to be considered for appointment to the IAS but he has no such right to be allocated to a specified cadre of his choice including his own home State. He submits that the allocation of cadre is an incident of service and the applicant has the liability to serve in any part of the country. In support of his contentions, he places reliance on the judgment of Honble Supreme Court in the matter of Union of India versus Rajiv Yadav reported in 1994-6-SCC-38. The next contention that he advanced relates to the applicability of cadre allocation policy of 2008. He submits that Insider Outsider quota has been fixed for each State and the SC, ST and OBC category reservation is followed and the vacancies are distributed amongst the General, SC, ST and OBC categories according to the said policy. As per the Cadre Allocation Policy, it is essential that a reserved category candidate selected on General merits shall be eligible for allocation against the available Insider General (Unreserved) vacancy as per his merit and preference and if he cannot be allotted against such vacancy being in the lower rank compared to other General category candidates he shall be considered for allocation as per his merit and preference. The Policy also indicates that in case Insider reservation post is not allocated, the same reserved post can be swapped with Outsider reserved post. The applicant was allotted Gujarat cadre as per his choice. In case of the applicant, he secured 44th rank and belongs to the OBC category. He got allocation of IAS against General merit (UR) candidate as indicated by the UPSC. Though he had declared Haryana as his home State and expressed his willingness to be allocated to the IAS Cadre of Haryana but as per the category wise distribution of vacancies worked out for the CSE-2008 there were 3 vacancies to be filled up by the directly recruited IAS probationers out of which one Insider vacancy was earmarked for General (UR) category and other 2 vacancies were earmarked for Outsiders in the category of OBC and SC candidates. Against the available General (unreserved) Insider vacancy the 4th respondent was allotted IAS cadre of Haryana State as he ranked 6th in the merit list. Against the Outsider 2 vacancies, Shri Pankaj belonging to OBC category (rank No.83) from Utter Pradesh and Shri Sumit Kumar Jarangal belonging to SC with the rank of 214 from J&K State were allotted Haryana State cadre. His submission is that these 3 vacancies in Haryana State were filled up strictly in accordance with Cadre Allocation Policy of 2008. There were 7 successful candidates in the CSE-2008 belonging to Haryana State but were not allotted to various cadres and only one of them namely, the 4th respondent could get Haryana cadre according to his merit in the General category. The applicant from amongst the successful candidates from Haryana State was in the 3rd position and above him there was one more General category candidate (Shri Ramvir with 15th rank) who got Punjab cadre. It is further stated that Ms. Gouri Parasher (General) with rank of 60 got Orissa, Shri Rupesh Kumar (OBC category) having rank of 69 got Utter Pradesh, Ms. Jyoti Yadav (OBC category) having 127th rank got Uttarakhand State and Ms. Isha (SC category) with rank of 275 was allotted to Sikkim cadre. The applicant was allotted Gujarat cadre as his choice in the cadre preference was Number 5th, and could not be accommodated to the State of Punjab (second preference), Himachal Pradesh (3rd preference) and Rajasthan (4th preference) as there was no such vacancy available on his turn of allocation of the cadres. The Counsel contended that the cadre allocation of the applicant to Gujarat State cadre was intimated to him while he was under training in the LBS Academy of Administration, which he accepted unconditionally. Having done so, the applicant has no locus standi to challenge the same. Therefore, Shri Chaudhary questions as to how the applicant is challenging the allocation of Haryana Cadre to the 4th respondent who ranks 6th in the General category of Insider quota when the applicant is on the 44th rank. There was no Insider OBC vacancy in Haryana State for the CSE-2008. He informs that in the year 2000, one Insider OBC vacancy was available and the same was not filled as no Insider OBC was available and the vacancy was determined as the Insider SC vacancy. In the CSE 2005 again one Insider OBC vacancy was available for Haryana State which could not be allocated as there was no Insider OBC from Haryana in the Select List and it was determined to be filled up by the Outsider OBC. It is his contention that as per the extant Cadre Allocation Policy, the number of vacancies earmarked under the policy of reservation for SC, ST and OBC is fully maintained by the 1st respondent in the all India basis for cadre allocation in the IAS. While Reservation Policy for Insider/Outsider within the State cadre is concerned, if a candidate belonging to a reserved category vacancy is not available the same is appropriately determined as per the extant guidelines, as has been indicated for the CSE-2000 and 2005. He also informs that in the year 2010 out of the 4 vacancies in Haryana State 2 are meant for the Insider OBC, the first respondent would be making appropriate allocations of cadre for the OBCs. He informs that in the CSE-2008 the OM No.13011/22/2005 AIS (I) dated 10.04.2008 has been followed strictly in letter and spirit. He hastened to add that according to the said Policy, 119 IAS Officers were allocated cadres out of which only about 3 such allocations there was problem like the one the applicant had raised in this OA. His submission is that the Cadre Allocation Policy of 2008 has benefited most of the IAS Probationers. It is further submitted that the Cadre Allocation Policy has never been quashed by any of the Courts and Tribunals in the past, even the Honble Supreme Court has upheld the Cadre Allocation Policy followed by the 1st respondent on many occasions. With reference to the contention raised on behalf of the applicant that the candidates who have been allocated to IAS without following the benefit of their reservation status at the time of making cadre allocation, Shri chaudhary would contend that this contention has been repelled by the dicta of Honble Supreme Court in Rajiv Yadavs case (supra) wherein it has been held that principles of allocation contained in the letter dated 31.05.1985 wherein preference is given to Scheduled Caste/Scheduled Tribe candidate for allocation to his home State do not provide for reservation of appointment to the post. The question of testing the said principle on the anvil of Article 16(4) of the Constitution of India does not arise. Shri Chaudhary submits that the candidates who do not get the cadre of their own home State are treated as Outsider and are allocated cadre by roster according to their preferences. The applicants case has been treated as an Outsider and State of his 5th preference has been allocated to him. In view of the above contentions, Shri Chaudhary urges that there is no merit in the OA and the same should be dismissed.
5. The 3rd respondent in it reply affidavit has stated that the 1st respondent has allocated three IAS officers from 2009 batch selected under CSE 2008 and 4th respondent is one of them who is undergoing training in Haryana from 21.6.2010 under IAS (Probation) Rules, 1954. It is further stated that the 1st respondent being the competent authority in allocating the 4th respondent to Haryana vide order dated 18.5.2010, the applicant has no locus standi to challenge the said order. It has therefore been urged to dismiss the same with costs.
6. Shri Arun Bhardwaj, learned counsel representing the fourth respondent would contend that the 4th respondent is in the 6th rank in the merit list of IAS officers of CSE-2008 whereas the applicant stood far below in the 44th rank. It will be unfair and unjust to deny the 4th respondent his home cadre. His contention is that the 1st respondent has followed the cadre allocation policy-2008 strictly which cannot be faulted. The applicant has not shown why and how 1994 is chosen to calculate vacancies for insider OBC vacancy to arise for CSE 2008. Further Shri Bhardwaj submits that the respondent has already joined Haryana cadre and is undergoing training, any change in his cadre will cause irreparable loss and cascading impact on the entire IAS batch. He argues that the OA should be dismissed with costs.
7. Having heard the contentions of the parties, with the assistance of their counsel, we perused the pleadings. Short question for our consideration and determination is whether the applicant is entitled to be allocated IAS of Haryana cadre as insider OBC? Though the issue seems to be simple one, the controversy involves examination of cadre allocation policy 2008 in which the insider-outsider quota / ratio and implementation of reservation policy for the successful SC, ST, and OBC candidates.
8. At this stage we may refer to the constitutional, statutory and policy provisions in respect of the IAS cadre allocation and associated subjects. The Article 312 of the Constitution of India provides for the All India Services (IAS, IPS, IFS) of which IAS is an important service. The said Article reads as follows:
"312. All-India services.
(1) Notwithstanding anything in Chapter VI of Part VI or Part XI, if the Council of States has declared by resolution supported by not less than two-thirds of the members present and voting that it is necessary or expedient in the national interest so to do, Parliament may by law provide for the creation of one or more all India services (including an all-India judicial service) common to the Union and the States, and, subject to the other provisions of this Chapter, regulate the recruitment, and the conditions of service of persons appointed, to any such service."
9. The All India Service Act, 1951 mandates the Government to make rules for the regulation of recruitment and conditions of service of persons appointed to an All India Service. In accordance with the Section 3 (1) of the above Act, the Indian Administrative Service (Cadre) Rules, 1954, were notified. Rules 3 (1) & (2) and 5 (1) being relevant, are reproduced below:-
"3. Constitution of Cadres - (1) There shall be constituted for such State or group of States or Indian Administrative Service Cadre.
(2) The cadre so constituted for a State or a group of State is hereinafter referred to as a 'State Cadre' or, as the case may be, a 'Joint Cadre'.
5. Allocation of members to various cadres - (1) The allocation of cadre officers to the various cadres shall be made by the Central Government in consultation with the State Government or the State Governments concerned.
10. In view of the above, a member of the IAS bears the liability to serve either in the Union or the State which is in accordance with the cadre allocation policy framed by the official respondents. It is noted that the power to enunciate such policy vests with the Government of India and the said policy has been upheld by Honourable Apex Court in the case of Union of India Versus Rajiv Yadav, IAS and batch of associated cases reported in 1994 - 6- SCC - 38 and Union of India Versus Mhathung Kithan and another reported in 1996 -10- SCC-562. We will refer to these judgments in more details in subsequent paragraphs. The validity of these rules and the cadre allocation policy have stood the test of judicial scrutiny. Though the vires of these rules and policy have not been challenged but the decision taken by the 1st respondent in implementing the provisions of the rules and policies have been questioned by the applicant in the present OA. We may refer to two relevant judgment of the Honourable Apex Court.
11. In Union of India Versus Rajiv Yadav, IAS and batch of associated cases [1994 - 6- SCC 38] the Hon'ble Apex Court considered some of the issues we are determining here in the instant OA and set the law that under the Indian Administrative Service (Cadre) Rules, 1954, the roster system laid down for allocation of Officers including scheduled caste and scheduled tribe officers amongst States has stood the test of time and providing for equitable allocation of scheduled caste and tribe officers is held as just, and allocation to home states of scheduled caste / tribe officers of I.A.S. under Rule 5 of IAS (Cadre) Rules does not amount to reservation of posts and does not hit Article 16(4). Let us examine the facts in this case. Rajiv Yadav who was successful in the CSE 1988 belonged to the Union Territory of Delhi and had opted for the "Union Territories" cadre but being selected for appointment to the IAS and being in the order of merit at serial number 16, was allocated to the Manipur and Tripura cadre. His representation for change of cadre from Manipur-Tripura to "Union Territories" having been rejected by the Central Government, he challenged the order allocating him to the Manipur-Tripura cadre before the Tribunal. The Union Government is the authority under the Indian Administrative Service (Cadre) Rules, 1954 to allocate IAS Officers to various State cadres / Joint cadres under the said Rules and has laid down the broad principles of allocation called "the Roster System". The said system was earlier operating from 1966 to 1977. Thereafter till 1984 the allocations were done in accordance with the procedure called "the Limited Zonal Preferences System". Since 1985 batch onwards the Central Government reverted back to the "Roster system" with some modifications. Reservation to the extent of 15% and 7.5 % for the scheduled castes and scheduled tribes respectively was provided in direct recruitment to the IAS. The "Roster system" provides that while allocating the scheduled castes / scheduled tribes candidates to their home State (insiders) vacancies shall be reserved for them in various cadres to the extent reservation-percentage has been provided in direct recruitment to the IAS. This reservation in the process of allocation was challenged by Rajiv Yadav before this Tribunal. A Full Bench of the Tribunal allowed the application of Rajiv Yadav and held that no reservation can be provided for the scheduled castes / scheduled tribes while allocating the members of IAS to various cadres. The Tribunal inter alia came to the conclusion that the letter dated May 31, 1985 was only an inter-departmental communication and there being no other notification / order / circular issued by the Central Government notifying the principles of allocation as a policy-decision, the said letter could not be taken to be an executive order of the Government laying down the so-called "Roster System" providing for the principles of allocation. It was, therefore, held by the Tribunal that the contents of the letter dated May 31, 1985 did not have any legal sanction to be considered as "established policy guidelines in the matter". It was further held that Clause (2) of the said letter gave an added benefit to the IAS probationers belonging to Scheduled Castes and Scheduled Tribes which was not permissible under the Constitution of India. The Union of India appealed against the judgment of the Tribunal before Honourable Supreme Court. While disagreeing with the above views of the Tribunal, the Honourable Supreme Court observed that " when a person is appointed to an All India Service, having various State Cadres, he has no right to claim allocation to a State of his choice or to his home State. The Central Government is under no legal obligation to have options or even preferences from the officer concerned. Rule 5 of the Cadre Rules makes the Central Government the sole authority to allocate the members of the service to various cadres. It is not obligatory for the Central Government to frame rules / regulations or otherwise notify "the principles of allocation" adopted by the Government as a policy. ...... The fact that the "Roster System" is being followed in practice by the Central Government for all these years is in itself a sufficient publication of its principles."
"5. We may examine the question from another angle. A selected candidate has a right to be considered for appointment to the IAS but he has no such right to be allocated to a cadre of his choice or to his home-State. Allotment of cadre is an incidence of service, a member of an All India Service bears liability to serve in any part of India.......... It is common knowledge that the Scheduled Caste / Scheduled Tribe candidates are normally much below in the merit list and as such are not in a position to compete with the general category candidates. The "Roster System" ensures equitable treatment to both the general candidates and the reserved categories. In compliance with the statutory requirement and in terms of Article 16(4) of the Constitution of India 221/2% reserved category candidates are recruited to the IAS. Having done so, both the categories are to be justly distributed amongst the States. But for the "Roster System" it would be difficult rather impossible for the Scheduled Castes/Scheduled Tribes candidates to be allocated to their home States. The principles of cadre allocation, thus, ensure equitable distribution of reserved candidates amongst all the cadres."
12. In the case of Union of India Versus Mhathung Kithan and another [1996 -10- SCC-562], the Hon'ble Apex Court allowed the appeal holding that Tribunal erred in disturbing the implementation of policy of Government of India having two third outsiders to cadre. Facts of the case would reveal that Respondent No.1 was selected for appointment to the Indian Administrative Service having been successful in the CSE-1985. The home State of respondent No.1 is Nagaland and he gave his preference for allocation to his home State / cadre. There were two seats which were available for allocation to Nagaland. Both these seats were earmarked for outsiders as per the 30 point roster. Hence the first respondent was allocated to the State of Haryana. He challenged this allocation before the Chandigarh Bench of the Central Administrative Tribunal. The Tribunal allowed the application and directed the appellant Union of India to consider the transfer of respondent No.1 from the Haryana cadre to the Nagaland cadre in the manner set out in the order. Thus, against the order of the Tribunal, Union of India appealed to the Hon'ble Apex Court. Referring to the law laid in the Rajiv Yadav's case [supra] the Honble Apex Court observed that "..the first respondent has contended that in the batch passing the examination in 1984, when the vacancy was for an insider, no insider was available and the vacancy had been occupied by an outsider. Hence he should be considered for one of the roster points available for the batch of 1985. We have, however, not been shown any rule which provides for a carry-over of "insider" vacancies if they are not filled due to non-availability of insider candidates. In the absence of any such rule for carry-forward of insider vacancies, we do not see how the first respondent can be accommodated in the vacancies which are earmarked for outsiders as per the relevant roster points."
13. In the backdrop of the well settled position in law about the validity of the IAS cadre allocation policy and legally tenable action taken by the 1st respondent in allocating cadres of successful IAS officers, we may dwell on the controversies raised by the applicant in the present OA. The issues in the present OA are two fold namely (i) reservation in OBC category and (ii) that too in the insider quota. Thus, we may refer to the extant policies which cover the above issues for the CSE 2008.
14. Before we consider the controversies, we may briefly deal on the processes involved in the cadre allocation. Direct recruitment to the IAS is made on the basis of annual Civil Services Examination conducted by the Union Public Service Commission (UPSC). As all the IAS officers are borne on State or Joint cadres, the candidates recruited to the IAS through the CSE are required to be allocated to various cadres. This is done by following the well settled principles. The entire process involves various stages. In the first stage, the total number of vacancies in a year to be filled up on the basis of particular examination is decided by the Government. The second stage is to apportion those vacancies among the cadres. The total vacancies so decided are distributed amongst the various cadres as per following formula devised by a Committee constituted for the purpose: (i) 50% vacancies in proportion to the number of districts in a particular State to that of total number of districts; and (ii) 50% vacancies in proportion to cadre deficit (cadre gap as on 1st January of the year plus number of direct recruit IAS officers likely to retire upto 1st September of that year). Third stage involves the cadre-wise vacancies of IAS are distributed amongst General, OBC, SC and ST categories. For this purpose, a 200-point running vacancy-based-roster showing SC/ST/ OBC/UR points is maintained for each cadre /Joint Cadre and is used for determining the vacancies in each category and in each cadre. The accounting in this roster is done on the basis of actual filling up of the roster point. As per Cadre Allocation Policy (CAP) issued on 10.4.2008(Annexure - ), the said roster for each of the cadre / Joint Cadre has been operationalised by adjusting the recruitments done since the CSE-1994 in accordance with paragraph 2 of the CAP. It is relevant to reproduce below Para 2 of the said Policy:
A 200-point running vacancy-based-roster showing SC / ST / OBC / UR points shall be maintained for each cadre properly and would be used for determining the vacancies of various categories (SC/ST/OBC/UR) in each cadre. The accounting in this roster shall be done on the basis of actual filling of the roster point. This roster for each of the cadres may be initialized by adjusting the recruitments done since the CSE-1994.
The fourth stage in the process is sending the intimation of vacancies so determined to the UPSC which are notified. The fifth stage includes the examination and the publication of CSE results by UPSC. The Sixth stage starts when, on the basis of the CSE results the UPSC recommends candidates belonging to each category equal to the number of vacancies intimated to UPSC. The seventh stage starts when the offer of appointment to IAS is issued by the Government to the successful candidates. On their acceptance and joining the LBS Academy of Administration, the last and final stage arrives when the cadre allocation offer on the basis of cadre allocation policy is offered to the IAS Probationers. By accepting the said offer, entire process comes to a close.
15. We may refer to the provisions of Cadre Allocation Policy (CAP)-2008, relevant for the issues raised in this OA. The objectives and intent of maintaining 200-point roster is to ensure equitable representation to various categories but that does not mean to exactly implement the policy of reservation at the level of cadre i.e at the State / joint cadre level as it would not be possible to achieve simultaneously the prescribed percentage of reservation in the intake both at the level of country and at the level of cadre. We may reproduce below the provisions given in paragraph 3 of the CAP-2008:
The purpose of maintaining the aforesaid roster at the level of the cadres is to ensure equitable representation to various categories and not to exactly implement the policy of reservation, per se, at the level of cadre, for it would not be possible to achieve simultaneously the prescribed percentage of reservation in the intake both at the level of country and at the level of cadre. Implementation of reservation policy on the total intake of service in a particular year would be a mandatory feature. Hence, while determining the category-wise vacancies (SC/ST/OBC/UR) in a cadre for a particular year, if the sum of the vacancies in a category for all the cadres is greater than the total vacancies in that category determined by operating the roster on the total vacancies (intake) for the service in that year, the vacancies in the cadre(s) having the highest excess (on a percentage basis) in that category as per the roster for that cadre(s) would be reduced so as to match the sum of vacancies in that category for all the cadres to the total vacancies in the service for that category. Similarly, if the sum of vacancies in a category for all the cadres is less than the total vacancies in that category determined by operating the roster on the total vacancies (intake) for the service in that year, the vacancies in the cadre(s) having the highest shortfall (on a percentage basis) in that category as per the roster for that cadre(s) would be increased to match the sum of the total vacancies in the service for that category.[emphasis supplied] It is noted that the reservation percentage category wise is maintained at the all India (Country) level while attempting to have a roster also at the Cadre (State) level.
16. Finally the vacancies in a cadre / Joint Cadre between Insider and Outsider vacancies are determined on the basis of the 30-point Insider-Outsider roster as per the provisions of paragraph 4 of the CAP-2008 which reads as under:
The insider and outsider vacancies in a cadre shall be determined on the basis of the insider-outsider roster with points as follows: O-I-O-O-I-O and so on, so as to facilitate the maintenance of the ratio of 1:2 between the insiders and the outsiders. It is, however, clarified that depending on the actual filling of the insider vacancies, the ratio between insiders and outsiders in a cadre at any point of time may, however, be less than 1: 2. There would be the following insider-outsider rosters for each cadre: first, for determining the total insiders and outsiders vacancies in the cadre; second, for determining the OBC insider/outsider vacancies and the SC/ST insider/outsider vacancies; and third, for determining SC insider/outsider vacancies and ST insider/outsider vacancies. In the first step, the total insider/outsider vacancies in a cadre shall be determined on the basis of the first roster for the cadre. In the second step, the OBC insider/outsider vacancies and the SC/ST (as one block) insider/outsider vacancies shall be determined on the basis of the second roster for the cadre. And in the last step, the SC insider/outsider vacancies and the ST insider/outsider vacancies shall be determined on the basis of the third roster for the cadre. The UR insider/outsider vacancies for the cadre shall be determined by subtracting the total reserved insider and the total reserved outsider vacancies from the total insider vacancies and the total outsider vacancies respectively. The accounting in the rosters (for total vacancies as well as category-wise vacancies) shall be on the basis of actual filling.[Emphasis added] It is noted that the distribution of vacancies added together equals to the total number of vacancies as reported to the UPSC by DOPT and is never altered.
17. Since the introduction of the CAP-2008 from CSE-2008, a candidate has to indicate his options for various Cadres in the detailed Application Form of the Mains Examination to Union Public Service Commission as per paragraph 5 of CAP-2008 and the same is as follows:
The candidates shall give their choice in the order of their preference from amongst the various State cadres including his Home cadre / state and if a candidate does not give any preference for any of the cadre(s), it will be presumed that he has no specific preference for those cadre(s). Accordingly, if he is not allotted to any one of the cadres for which he has indicated preference, he shall be allotted along with other such candidates in the order of rank to any of the remaining cadres, arranged in alphabetical order, in which there are vacancies in his category after allocation of all the candidates who can be allotted to cadres in accordance with their preference[ emphasis supplied].
18. Para 5 of the said Policy, enjoins upon the candidates to give their choice in the order of their preference from amongst the various State Cadres including his /her Home Cadre of his State. If a Candidate does not give any preference for any of the cadre then it is taken that he has no specific preference. As per paragraph 6 of the CAP-2008, a candidate shall be allotted to his home cadre or any other cadre, as the case may be, on the basis of his merit, preference and vacancy available at his turn in his category. Paragraph -8 of the said Policy lays the following three steps ad seriatim to be taken for the cadre allocation: (i) First, all those candidates who can be allocated against the insider vacancies available in their category would be so allocated. (ii) Second, the candidates who are eligible for allocation to their home State as per paragraph 7 above will be allocated-first as per clause (d) of paragraph 7 and then as per the remaining part of paragraph 7. In the context of clause (a), (b) and (c) of para 7, the cadres to which the incoming officers would have normally been allocated would be determined by allocating all the candidates remaining paragraph 7 unallocated after allocation as per clause (i) of para 8 and clause (d) of above, against the outsider vacancies plus all the insider vacancies remaining unallocated after the said allocation as per clause (i) of para 8 and clause (d) of paragraph 7 above. Wherever the allocation happens to be against only the unallocated insider vacancy and no outsider vacancy is available in the cadre to facilitate the exchange, the next cadre in alphabetical order in which outsider vacancy is available in the relevant category would be considered paragraph 7 for transfer of SC / ST / OBC vacancy as per clause (a), (b) and (c) of above. If an insider vacancy cannot be filled as per paragraph 7 above, it would be converted to outsider vacancy and filled as such, duly accounting the fact of unfilled insider vacancy in the insider-outsider roster of the relevant cadre. (iii) Finally, all the remaining candidates will be listed under their respective category in the order of merit and then allocated to a cadre on the basis of their merit, preference and the outsider vacancies in their category (including the outsider vacancies resulting from conversion of insider vacancies, which remained eventually unfilled after the allocation as per clause (i) and (ii) of para 8 above) available at their turn in the cadres other than their home cadre. Notwithstanding this, however, if during the course of allocation against the outsider vacancies as above a candidate is going to be allocated to his own home cadre because there are no other vacancies left for allocation other than those in his home cadre, an exchange would be resorted to whereby the allocation of such candidate would be swapped with the cadre allotted to the first candidate above him in the list whose home state and allotted cadre are different.
19. The Paragraph 7 envisages allocation of cadre against insider vacancies by swapping /exchange of vacancies across the States / Cadres / Categories. For ready reference paragraph 7 is extracted below:
The following shall be the formula for filling up of an insider vacancy belonging to a particular category for which a candidate is not available.
a. When no candidate is available against an Insider SC vacancy in a Cadre, the same shall be filled up by bringing in the senior most insider officer available in the merit list of ST candidates (failing which in the merit list of OBC candidates and in the merit list of the Unreserved candidates in that order ) and shifting the SC vacancy of the Cadre to the cadre to which the incoming officer would have normally been allotted against the available outsider vacancy in his category (failing which to the next cadre in alphabetical order in which the outsider vacancy is available).
b. When no candidate is available against an Insider ST vacancy in a Cadre, the same shall be filled up by bringing in the senior most insider officer available in the merit list of SC candidates (failing which in the merit list OBC list and in the merit list of the Unreserved candidates in that order) and shifting the ST vacancy of the Cadre, to the cadre to which the incoming officer would have normally been allotted against the available outsider vacancy in his category (failing which to the next cadre in alphabetical order in which the outsider vacancy is available).
c. When no candidate is available against an Insider OBC vacancy in a Cadre, the same shall be filled up by bringing in the senior most insider officer available in the merit list of ST candidates (failing which in the merit list of SC candidates and in the merit list of the Unreserved candidates in that order) and shifting the OBC vacancy of the Cadre to the cadre to which the incoming officer would have normally been allotted against the available outsider vacancy in his category (failing which to the next cadre in alphabetical order in which the outsider vacancy is available). Provided that in every such case listed in clause (a), (b) and (c) above, if insider-physically-disabled-candidate(s) of the relevant community is/are available, such physically disabled candidate (senior most in the merit list) shall be so adjusted. In other words, a physically disabled candidate would have a higher claim for being adjusted as compared with non-physically disabled candidates of his community.
d. When no insider unreserved candidate is available against an Insider Unreserved vacancy available in a Cadre but insider SC/ST/OBC candidate(s) is/are available, such senior most ST candidate (failing which such senior most SC candidate and such senior most OBC candidate in that order) shall be adjusted by shifting out the Unreserved insider vacancy to the next cadre in alphabetical order having outsider vacancy in that category and bringing in an Outsider vacancy of that category from that cadre.
20. It is an admitted fact that CAP-2008 has been applied for allocation of cadre to the successful candidates in CSE-2008 and thereafter. However, the CAP-2008 threw up few problems. The respondents observed that some of the reserved category candidates qualified on general standards without availing any relaxation meant for their respective reserved category were getting cadre of their lower preference vis-a vis less meritorious candidates of their own category qualified in the CSE by availing one or more relaxations meant for their category. In order to overcome this anomalous situation, Paragraph-9 of the CAP-2008 was amended on 21.4.2011 and 15.6.2011. The amended Paragraph 9 of the Cadre Allocation Policy is reproduced below:-
A reserved category candidate selected on general standards shall be eligible for allocation against the available insider unreserved vacancy as per his merit and preference. But if he cannot be allocated against such vacancy, for he is lower in rank as compared with other general category candidates, he shall be considered for allocation as per his merit and preference against the available insider vacancy of his category and, in case found eligible, adjusted by exchanging insider vacancy in his category into insider UR vacancy and outsider UR vacancy into outsider reserved vacancy of his category. This is to ensure that such candidate is not placed at disadvantageous position vis-`-vis other candidates of his category in the merit list below him.
The above amended provision is applicable only prospectively and has no relevance for the cadre allocations already done on the basis of CSE-2008 selection to IAS.
21. Cadre Allocation is done based on the position available at that time of cadre allocation. Any development occurring after cadre allocation cannot be allowed to disturb the cadre allocation already done as otherwise cadre allotment would become a never ending process and would disturb the cadre allocation of other candidates also. In view of above the applicant has no justification and locus standi to assail cadre allocation made to him. Moreover, as per the principles of cadre allocation, the candidates who could not get their home state are treated as Outsiders and are allotted cadre by rank and preference against outsider vacancies. In this case, the applicant was allotted cadre in his category as an outsider. Cadre allocation process is chain reaction in nature, if vacancy is consumed; the same is not available for next candidate and so on.
22. The CAP-2008 policy clearly underlines the intention that purpose of maintaining 200-point roster at the level of the cadre is to ensure equitable representation to various categories. It is not exactly to implement the policy of reservation at the level of cadre. It would be possible to achieve the prescribed percentage of reservation in the intake at the level of country while providing reservation even at the cadre level. The applicant in his application has quoted the policy in a selective manner to suit to his case. It is noticed that it is not possible for the 1st respondent to maintain on year-to-year basis intake of candidates in a particular cadre in each category strictly in accordance with the prescribed percentage of reservation in that category. Number of vacancies vary in a State Cadre from year to year. We may take an example to illustrate the above point. If there is one vacancy in OBC category as insider vacancy and there are two vacancies of general category as outsider in a State, Insider/OBC vacancy in that particular Civil Services Examination Year can only by filled up if a candidate from the state of Haryana has been selected and he has opted for Haryana as his first preference besides declaring Haryana as his home state. In case, no candidate has declared his home state as Haryana, the vacancy will remain unfilled. It means that the reservation at the level of each cadre cannot be maintained on year-to-year basis. This non-availability of vacancies against specific category may even continue for a long time. However, the CAP-2008 introduced in CSE-2008, has taken care of this aspect. In para 4, It has been indicated that the accounting in the rosters (for total as well as category-wise vacancies), shall be on the basis of actual filling. Thus, the cadre allocation policy which became effective from Civil Services Examination 2008 has taken into account this aspect also and it is not correct to say that the policy undermines that there should be reservation in State on year to year basis as it is not possible to implement accordingly.
23. In the backdrop of our above discussions and analysis on the CSE-2008 and the CAP-2008, we find that the applicant though applied in the category of OBC but according to his merits, he has come in the General Category having secured 44th position in the merit list. As General IAS candidate he could not have been granted Haryana cadre as Insider as there were two General category candidates with higher rank than the applicant. They are the 4th respondent who got 6th rank and has correctly been allotted to the Haryana cadre in the insider quota, and the 2nd candidate is Ramvir who being on 15th rank but has not get Haryana cadre and has been allotted as an outsider to Punjab cadre. If we accept the plea of the applicant that he as an Insider General category candidate should have been allotted Haryana Cadre and as he is challenging a General selected candidate allotted to the Insider Haryana cadre in General category, the claim of Shri Ramvir who was in the 15th rank and above the applicant in the merit list for the said general category Insider vacancy would be considered. On this score, the applicant has not been able to convince us to consider him as an Insider General category candidate to be allotted to Haryana cadre.
24. One more of his claim needs to be looked into. His claim is that he has been selected on the merit list as a general candidate but his application has been for OBC candidate, he, therefore, should be considered as OBC insider against the Insider general category vacancy which is occupied by the 4th respondent, and he should have been allotted. On our close scrutiny of the records of the 1st respondent, we have noticed that in the roster the position presently occupied by the 4th respondent is Insider General category. It is not meant for Insider OBC category. Had the vacancy been reserved for the Insider OBC category, surely, the applicants case would have some merit. We, therefore, find that the applicants argument is not any logical and rational.
25. Yet another contention has been raised on behalf of the applicant which is that from 1994 up to 2008, no Insider OBC has been allocated the Haryana cadre and as such his case should be considered. First of all, the applicant has not been treated as Insider OBC IAS candidate as he has secured his merit position by virtue of his rank in the General category. Secondly, the vacancy has not been allocated for the OBC Insider for the CSE-2008. Thirdly, in our discussions within, it has been noted that in the past when the Insider OBC vacancy existed, no such successful candidate (Insider OBC) was available. Hence, the first respondent determined such vacancy in the absence of Insider OBC as Outsider OBC or Outsider SC and appropriate allocations had been given considering the overall compliance of the reservation policy on the country level. On this point, we also are of the considered opinion that no interference is called for.
26. Taking into account the totality of facts and circumstances of the case, noting the extant Cadre Allocation Policy of 2008 applicable in the present case and guided by the ratio laid by the Honble Supreme Court in Rajiv Yadavs case (supra) and Mhthung Kithans case (supra) we are of the considered opinion that the Cadre Allocation of the applicant to Gujarat cadre has been done as per the extant Policy of 2008. The action of the 1st respondent is sustainable in the eyes of law. Resultantly, the applicants claim to have Haryana Cadre, either as a Insider general category candidate or Insider OBC category candidate is not legally tenable.
27. In the result, the OA being devoid of merits, is dismissed, leaving the parties to bear their respective costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /pj/