Central Administrative Tribunal - Hyderabad
Abhishek Mohanty vs M/O Home Affairs on 19 July, 2021
OA No.422/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH
OA/020/00422/2016
HYDERABAD, this the 19th day of July, 2021
Hon'ble Mr. Ashish Kalia, Judl. Member
Hon'ble Mr. B.V. Sudhakar, Admn. Member
Abhishek Mohanty, IPS aged about 30 years,
Additional Superintendent of Police, Chittoor,
A.P son of Sri A.K.Mohanty, IPS (Retd), Plot No.2,
Vyjayanti Coop. Housing Society, Mahendra Hills,
East Maredpalli, Secunderabad - 500 026. ...Applicant
(By Advocate : Mr. D.V. Sitarama Murthy, Senior Counsel for
Mr.A.Narasimha Reddy)
Vs.
1.Union of India represented by Secretary,
Ministry of Home Affairs, North Block,
New Delhi-1.
2.Joint Secretary (Police), Ministry of Home Affairs,
Government of India, North Block, New Delhi-1.
3.Chief Secretary, Government of Andhra Pradesh,
Secretariat, Hyderabad.
4.Chief Secretary, Government of Telangana,
Secretariat, Hyderabad. ....Respondents
(By Advocate :Mr.V.Vinod Kumar, Sr. CGSC,
Mr.M.Bal Raj, GP for State of AP &
Mr.P.Raveender Reddy, Spl Counsel for State of Telangana)
---
Page 1 of 86
OA No.422/2016
ORAL ORDER
(As per Hon'ble Mr. B.V.Sudhakar, Administrative Member) Through Video Conferencing:
2. The OA is filed in regard to non-allocation of Telangana State cadre to the applicant, belonging to the Indian Police Service. (For short IPS)
3. Brief facts to be adumbrated are that the applicant, an Unreserved (for short "UR") candidate of the 2011 batch of the IPS, was allotted to the composite State of Andhra Pradesh on merit in Direct Recruit (For short "DR") Outsider quota. Consequent to the bifurcation of the composite State of AP into the Residual State of AP (For short "RSAP") and the State of Telangana, applicant was allotted to RSAP as per the draft list/ final list calling for representations, if any, by 29.8.2014, as per the recommendations of the Pratyush Sinha Committee (For short "PS Committee"), formed for distribution of All India Service Officers (For short "AIS") between the two successor States, under the A.P Re-
organization Act, 2014 (For short "Act-2014"). Applicant represented on 28.8.2014 to consider him for Telangana State cadre, but was provisionally/ finally allotted to RSAP on 26.12.2014/ 5.3.2015 respectively. Another representation made on 22.10.2014 did not yield any fruitful results. Hence, the OA.
4. The contentions of the applicant are that Rule 6 of Cadre Allocation Policy of 2008 (For short CAP-2008) has been infringed by allotting Sri Sunpreet Singh to Telangana, albeit he ranks below the applicant in merit (A-11) and belongs to the same batch/ category. Applicant applied for swapping on 7.1.2015 with Sri Vijay Kumar of 2012 IPS batch, who opted Page 2 of 86 OA No.422/2016 for RSAP, as per swapping terms & conditions and even this request was vetoed. Further, Sri Vineeth Brij Lal of 2001 IPS batch, belonging to the reserved community and selected on merit was allotted to Telangana by considering him as reserved category instead of unreserved, thereby snuffing of the opportunity of the applicant to be allotted to Telangana. There are a number of frailties in the guidelines approved by PS Committee. Articles 14 & 16 of the Constitution have been violated in disregarding the request for allocation to Telangana cadre.
5. Respondent No. 2 has filed the reply on behalf of Respondent No.1 as well. These respondents in the reply statement aver that an advisory Committee chaired by Sri Pratyush Sinha with the Chief Secretaries of the successor States and the Cadre Controlling authorities of IAS/IPS/IFS as members, was formed under Section 80 of the A.P Reorganization Act - 2014 to lay down norms for distribution of AIS officers and recommend the allocation of the cadres among the 2 successor states, in terms of Section 76 (3) of the Act-2014. Out of the 62 officers from the Outsiders category, 27 officers had to be allotted to Telangana and for this purpose, 27 roster blocks were formed, wherein applicant was listed at Sl. No.56 in a roster block consisting of two officers. On acceptance of the PS Committee recommendations, applicant was allotted to RSAP as per the approved guidelines in a free and fair manner, as has been applied to all others. Swapping of officers was permitted vide memo dated 26.12.2014 with certain conditions and the applicant's request for the same was examined and rejected on 19.1.2016. There is no provision in the Act-2014 to apply CAP -2008 for distribution of officers. Sri Sunpreet Singh was allotted Page 3 of 86 OA No.422/2016 Telangana by following Clause 7.3 of the guidelines. Further, Sri Vijay Kumar of 2012 batch did not represent for swapping though he has opted for AP when preferences were sought. Hence, the applicant stating that he has sought swapping with Sri Vijay Kumar is a misrepresentation. Besides, Sri Vineet Brij Lal of 2001 was allotted to Telangana as per provision 5.1 of the guidelines. Applicant belongs to the AIS and is liable to serve either under the union or the State to which he is allotted as per Rule 5 of the cadre allocation rules. It is not obligatory for the Central Govt. to frame rules/ regulations or notify the principles of cadre allocation. Judgments of the Hon'ble Supreme Court were cited to support the contentions made.
Applicant filed a rejoinder affirming that that the distribution of officers under clauses 3 & 4 of Section 76 of the Act-2014, should not be in variance with the provisions of the AIS Act, 1951. As per the terms of reference to the advisory committee, AIS officers were to be given an opportunity to submit representations in regard to the guidelines framed for distribution. Without providing for such an opportunity, the guidelines and the allocation of officers were published on 22.8.2014, thereby violating Section 80 (1) (b) of the Act. To decide roster size, block etc. Telangana was selected on the basis of drawing a lottery but respondents chose RSAP for the first point of allocation without resorting to drawal of lottery capriciously. The determination of the roster size is flawed for the reason that 3 officers namely Sri V.S.K. Kaumudi, Sri Vinay Ranjan Ray and Sri Vishnu W. Warrier gave equal preference to the 2 successor States and Sri Abhilasha Bist did not given any option. Only 8 officers opted for RSAP. The 4 officers should have been allotted to RSAP without invoking roster Page 4 of 86 OA No.422/2016 block concept. If done, the number of roster blocks would reduce to 23 and roster size to 62:23, thereby sequencing of the allocation would undergo a drastic change. Even exclusion of Sri Vineet Brijlal has affected the sequencing of allocation. Swapping with Sri Vijay Kumar, though he belongs to the same category and grade pay as that of the applicant, was not permitted by falsely stating that no eligible candidate was available. In fact, it is an afterthought to justify non-compliance of Rule 2(c) of Swapping. Swapping system followed has permitted swapping across batches for the reserved category and not for unreserved category of AIS officers, violating the legal principle enunciated by Hon'ble Apex Court in Indra Sawhney and further artificial classification of a homogeneous group of AIS officers into DR outsiders/ DR insiders/ reserved/ unreserved etc. was resorted to, in contravention of D.S. Nakara verdict of the Hon'ble Apex Court. Principle of reservation was not followed in Sri Vineet Brijlal and the guideline 5.1 is against Section 80 (1) (b) of Act-2014/ CAP/ AIS Act 1951/ Cadre Rules 1954. Respondents claimed distribution of officers under Section 80 of the Act-2014 whereas R-1 in the reply statement filed in OA 230/2020 had taken a stand that it is allocation of officers and not distribution. DOPT has approved the guidelines for allocation and not distribution as made out by R-2. Clauses 3 & 4 of Section 76 & Section 80 of the Act -2014 make this explicit. Tribunal in OA 1241/2014 has held that PS Committee guidelines are arbitrary and illegal. The P.S Committee need to have reckoned CAP- 2008 framed under AIS Act-1951 & Cadre Rules-1954 to provide for merit cum preference, and treating the Reserved as well as the Unreserved officers on the same footing in respect of swapping. Importantly, guidelines of the PS Committee are inconsistent with Section 80 of the Act-2014, Page 5 of 86 OA No.422/2016 since it did not authorize the committee to frame guidelines in contravention of the CAP. Applicant has cited the judgments of the Hon'ble Apex Court that subordinate rules/guidelines framed cannot be contrary to the substantive rules/guidelines to drive home the point that CAP -2008 cannot be ignored while framing the guidelines. Respondents have failed to follow the guideline in respect of domicile by taking into consideration the information provided against query numbers 4, 12, 13, 16 & 17 of the detailed application form (For short DAF) of UPSC and the information provided by the DGP on 21.3.2014 & 22.4.2014. Consideration of information in the DAF would have enabled the applicant to be treated as insider instead of outsider, the later entailing application of roster principles. Representations submitted on 28.8.2014/22.10.2014 were not replied violating Principles of Natural justice. Principles of merit and seniority have been ignored injuring Articles 14 & 16 of the Constitution and the legal principle laid down by the Hon'ble Apex Court in UP & Anr v. Dinkar Sinha in CA 1262 of 2004 & Balakishan v Delhi Admin & Anr. in 1989 Supp (2) SCC 35. Respondents unilaterally decided that the first point for allocation in the roster for UR outsider candidates shall be RSAP which changed the allocation process all together. Applicant cited the judgments of the Hon'ble Apex Court, to affirm, that the executive authority has to be adjudged to the standards to it professes. The notice issued by the respondents does not mention of any representation to be submitted and neither it was called for after 9.5.2014. Suo motu swapping was done i.r.o some other officers without representations. Hon'ble Apex Court in Rajiv Yadav Case has not observed that the authority of Central Government can be exercised arbitrarily and the observation of the Hon'ble Page 6 of 86 OA No.422/2016 Apex Court in Thri Vikram Varma v Avinash Mohanty & Ors is to ensure fair and equitable treatment in matter of allocation which applies to the case of the applicant.
Respondents have filed an additional reply informing that 31 officers were provisionally allotted to Telangana, by R-2 on 30.6.2014, to meet its functional requirement. The PS Committee came up with the guidelines and allocation of AIS officers on 22.8.2014. Stake holders were asked to represent in respect of facts only. Representations were received to decide draft allocation with reference to State gradation list instead of on All India Seniority, which was conceded to. Tentative allocation was published on 10.10.2014 seeking representations, if any, in writing or in person. It was made clear that the principles approved on 22.8.2014 by the competent authority shall remain unchanged. Thereafter, while provisionally allotting 119 officers to RSAP and 92 to Telangana on 26.12.2014, the provision for swapping was introduced for officers in the same category/ grade pay as on 1.6.2014 and on grounds of marriage. Allocation of AIS officers has been made with the approval of the competent authority namely the Central Government. The guidelines cannot be termed as arbitrary just because they do not suit the requirements of the applicant. Even on merit the applicant would not have got Telangana since only the top 27 would make it and not the applicant at Sl.47 in the merit list. Sri Vijay Kumar did opt for RSAP but he was allotted to Telangana based on principles of distribution and also he did not represent under swapping for RSAP. Officers who have not given preference or gave equal preference were considered for swapping as per their roster point. Officers who gave equal preference will not be Page 7 of 86 OA No.422/2016 considered for swap in batch for UR category and roster block with respect to reserved category. Domicile is applicable to DR insider and not for DR outsider. The drawal of lots was for drawing of roster and not for starting the allocation. In the distribution process it was noticed that 80 to 90% of the officers opted for Telangana and therefore the committee took a transparent decision of balancing the desires of the officers and administrative convenience.
R-4 has filed an affidavit averring that they would go by the reply filed by GOI represented by R-1 & R-2, since the GOI is the competent authority to decide policy/ rules regarding allocation. R-3 has not filed the reply despite granting multiple opportunities to do so. In a case of similar nature in OA 1307/2019, R-3 has filed an affidavit to consider the reply filed by GOI. The present OA has been filed in 2016 and hence it being not in the interest of justice to further procrastinate the adjudication of the dispute, the OA was adjudicated upon.
6. Heard both the counsel and perused the pleadings on record.
I. The dispute is in regard to non-allocation of the Telangana cadre to the applicant who is a DR of IPS- 2011 batch and is from the unreserved community, despite the fact that he was initially allotted to the composite State of A.P as a DR Outsider on merit. The applicant has asserted that the respondents have denied the Telangana cadre by taking decisions which are neither fair nor equitable. The essence of his contentions are as follows:
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i) Ignoring Merit cum Preference principle in allocation of Cadre by not following Cadre Allocation Policy 2008.
ii) Violating Principle of Domicile by not treating the applicant as "Outsider Domiciled in undivided Andhra Pradesh" as per criteria laid to determine Domicile by Pratyush Sinha Committee.
iii) Subjecting applicant to arbitrary decision with respect to First Point of Allocation denying the applicant allocation to Telangana.
iv) Subjecting Applicant to arbitrary system adopted for Swapping of Officers.
v) Subjecting applicant to illegal, arbitrary and unconstitutional guidelines of Pratyush Sinha Committee.
vi) Violating provisions of AP Reorganization Act, 2014 and in particular Section 80(1)(b) of the Act.
vii) Defeating the principle of legitimate expectation, equitability and natural justice.
viii) Arbitrary formulation and implementation of guidelines for Cadre Allocation.
ix) Not giving proper consideration to representation as required under Section 80(1)(b) of the AP Reorganization Act, 2014.
Respondents have rejected the above by filing a reply and a sur-rejoinder. Page 9 of 86 OA No.422/2016 An analysis of the rival contentions against rules/ law would enable us to arrive at a justifiable conclusion and the same has been attempted in the ensuing paras.
II. Consequent to the bifurcation of the composite State of A.P into Telangana and RSAP, the allocation of AIS was regulated by the different provisions of the Act-2014 and in particular Sections 76 & 80 of the Act. As per section 80 of the act PS Committee was formed to suggest guidelines and allocation of AIS officers to successor States. The terms of reference to the committee are as under:
(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.
(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.
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(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."
From the above, it is crystal clear that as per clause (ii) above, the guidelines framed by the committee in regard to the determination of the cadre strength and the principles for allocation of the AIS officers between the 2 successor States has to be kept on the respondents website for a period of one week for seeking representations and thereafter considering such representations the guidelines recommended have to be finalized. The motive was to ensure that the guidelines thus framed would be objective, fair, transparent and equitable after proper consideration of representations submitted, if any. In addition section 80 (b) of the Act -2014, reproduced hereunder, postulated fair and equitable treatment to all persons affected by the act and proper consideration of their representations, if submitted.
Section 80 - Advisory Committees.
(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 Reorganization 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 Reorganization 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."Page 11 of 86 OA No.422/2016
Respondents have released the guidelines and the tentative list of allocation of officers on 22.8.2014, which is in defilement of clause (ii) of the terms of reference cited above. When the committee has not given any opportunity to represent against the guidelines, the question of the process being objective, fair and transparent is a far cry. The committee has not been bestowed with the discretion to act beyond the terms of reference and we do not find any reasons being adduced in the reply/ additional reply of the respondents, justifying the indiscretion committed by the PS Committee in out-stepping its brief. It appears that the Committee, for reasons not known, was in haste to complete the task rather than being cautious in toeing the line drawn in tandem with the terms of reference. The fairness and equitability of a process would be adjudged in the way it has delineated to be followed. The committee by infringing the terms of reference has undermined Section 80 (b) of the Act-2014. Besides, when a certain norm is made explicit then it would be a legitimate expectation of those effected, that the said norm would be followed in letter and spirit. The PS Committee belying the legitimate expectation by not giving scope to submit representation, as per the terms of reference, is not a fair preposition.
Anything unfair does not have the backing of law.
The Tribunal had an occasion to deal with a similar aspect in OA 1037/2019, wherein we found that the PS committee was out of step with the terms of reference and observed as under:
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 Page 12 of 86 OA No.422/2016 '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 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 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 Page 13 of 86 OA No.422/2016 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, 1985A.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. 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 Page 14 of 86 OA No.422/2016 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.
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."
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Even 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 Page 16 of 86 OA No.422/2016 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.
III. 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 :-
(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 Page 17 of 86 OA No.422/2016 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 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:Page 18 of 86 OA No.422/2016
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.Page 19 of 86 OA No.422/2016
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.Page 20 of 86 OA No.422/2016
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 21 of 86 OA No.422/2016 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 Page 22 of 86 OA No.422/2016 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.
xxx
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 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 Page 23 of 86 OA No.422/2016 & 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."
We 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:
Page 24 of 86 OA No.422/2016
(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 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 Page 25 of 86 OA No.422/2016 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 Page 26 of 86 OA No.422/2016 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. 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 & amp; 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 tothe 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 Page 27 of 86 OA No.422/2016 between the basis of classification and the object sought to be achieved. It was equally important for the respondents to 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. Article16(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/ 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.
Page 28 of 86 OA No.422/2016 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.
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 Page 29 of 86 OA No.422/2016 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 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], Page 30 of 86 OA No.422/2016 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 agroup 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 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 Page 31 of 86 OA No.422/2016 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 Page 32 of 86 OA No.422/2016 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.
IV. One another contention of the applicant is that Sri Sunpreet Singh who secured 170th rank in the original merit list in Civil Service Exam-2010, was allotted Telangana whereas applicant secured 139th rank and yet was allotted to RSAP instead of his choice of Telangana by ignoring merit. Besides, since the applicant figures at sl 56 and Sri Sunpreet Singh at Sl 57 in the gradation list, the junior has been given preference over the senior, showing scant respect to seniority in allotment of cadre. Respondents have responded by stating that only 27 officers are to be allotted to Telangana and the applicant listed at sl.47 in the merit list does not stand a chance to be allotted to Telangana on the basis of merit. If the contention is accepted, though not admitted, then Sri Sunpreet Singh who is lower than the applicant in merit, was allotted to Telangana, which deflates the submission of the respondents that even on merit the applicant could not have got Telangana. Further, service law is well settled that seniority has to be given due weightage in service matters and the PS committee not giving credence to the principle of seniority while determining allocation, would not thus be lawful. At the same time we notice, that the PS committee has recommended to follow the principle of seniority when it came to swapping of officers. We are at loss to understand the logic behind the selective choice of principle of seniority by the PS committee and the respondents did not elaborate the basis for such differentiation in applying the principle of seniority selectively in their dual replies. The respondents also have not cited any statute which governs the Page 33 of 86 OA No.422/2016 service condition of the applicant to overlook his seniority, vested in him on passing the CSE -2010 exam as per order of merit, at the time of allocation of the cadre among the two successor States. The PS committee though formed under an act, yet it has a bounden responsibility to frame guidelines which are in congruence with the Principles of seniority and the relevant law governing them. The guidelines which do not endorse the cited requirements will lack legal force. The argument of the respondents is that Sri Sunpreet Singh although junior to the applicant was allotted to Telangana by arriving at the point of allocation as per the roster principles, given here under:
"Where the size of the roster block so prepared is an even number, the point next below to the number arrived at by dividing the roster block by two will be the point for allocation; and where the size of the roster block is an odd number, the mid-point will be the point of allocation."
The applicant and Sri Sunpreet Singh were included in a roster of size 2 which is even and applying the above formula, the later was allotted to Telangana. However, as was observed supra in service matters seniority has to be reckoned and that too consistently, unlike the PS committee which has been selective in using the said principle for swapping and ignoring it when it came to rosters. The issue of allotting junior to Telangana in cadre allocation, based on the roster principles fell for consideration in an identical case before this Tribunal in OA 1037/2019, wherein we held that allotment of Telangana taking no notice of the principle of seniority, was not maintainable in terms of rules and law, on the basis of a series of judgments of the Hon'ble Apex Court, as under:
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 Page 34 of 86 OA No.422/2016 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 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.
Page 35 of 86 OA No.422/2016 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'' 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."
V. Respondents have been harping in the reply statement that the respondents have allotted the applicant to RSAP as per the concept of roster blocks. We would like to have a close look at the application of the roster theory to the case of the applicant. As stated by the respondents, there were totally 62 officers and among them 27 have to be allotted to Telangana. In other words, the rest 35 have to go to RSAP. However, respondents submitted that 80 to 90 % of the officers have opted for Telangana, which is understandable since Hyderabad being a cosmopolitan city, it would suit the needs of the direct recruit outsiders, who hail from other States. Page 36 of 86 OA No.422/2016 Consequently, to resolve the puzzle, respondents came up with the idea of 27 roster blocks and fit the AIS officers in roster blocks of size 2 and beyond for allotting them to a particular cadre by arriving at the point of allocation, by applying the formula, as per guidelines given hereunder:
"Where the size of the roster block so prepared is an even number, the point next below to the number arrived at by dividing the roster block by two will be the point for allocation; and where the size of the roster block is an odd number, the mid-point will be the point of allocation."
Applying a little bit of mathematics it would be obvious that the size of the block would be determined by the ratio of the total number of officers and the number of officers to be allotted to Telangana or RSAP. Applicant has pointed out that 8 officers have opted for RSAP and 3 have indicated equal preference with one not giving any option. Given the severe competition for Telangana, there would not have been any grievance if the officers who have given equal preference and not given any option to RSAP. Taking the decision referred to in Public interest, does not require any extensive administrative expertise. Truly, the public interest involved was to allot officers who were open to be allotted to RSAP for which State the options were minimal. It requires no reiteration that every action of the State must be informed with reason and has to be in Public interest. Instructions are to be followed and not breached. Application of Roster theory will come into play when it is a case of officers competing for Telangana and not for those who were neutral to be allotted to RSAP. Therefore, in quintessence it was not in public interest to apply roster principles and allot the 4 officers cited to Telangana, albeit in the interest of administration they ought to be allocated to RSAP. We take support of the Hon'ble Supreme Court Page 37 of 86 OA No.422/2016 observations in regard to public interest as under, while making the above remarks.
a. Nidhi Kaim & Another vs State of Madhya Pradesh & Ors. Etc. in Civil Appeal No. 1727 of 2016, as under:
No doubt, that the overarching requirement of Constitution is that every action of the State must be informed with reason and must be in public interest.
b. Karnataka Public Service Commission & Ors v B.M. Vijaya Shankar & Ors, AIR 1992 SC 952:(1992) 2 SCC 206 "Larger public interest demands of observance of instruction rather than its breach".
Indeed, the public interest involved in respect of the issue on hand was the existence of the scope to allot 4 officers to RSAP which required 35 officers and only 8 opted for the said State. Including Sri Vijay Kumar the officers who can be allotted to AP would be 5 more. Yet, the respondents instead of taking a simple decision to allot them to RSAP, have unnecessarily applied the concept of roster points to them too. Moreover, section 80 (b) has spoken of fair and equitable treatment. Denying RSAP to Sri Vijay Kumar when he represented for RSAP and also Telangana to the applicant when he sought swapping with Sri Vijay Kumar as brought out supra, are not in the realm of fairness and equitable treatment as envisaged in the section referred to. Unnecessarily ushering in the concept of roster points in case of the 5 officers pointed out is an irrational decision. More so, when it was not in public interest, since the scope to allot officers who had no objection to RSAP was scuttled and thereby the leeway to overcome the deficiency in RSAP was not explored the way it could be .
Guidelines generally are prescribed in public interest and those parts of the Page 38 of 86 OA No.422/2016 guidelines not serving public interest have to be cold shouldered. Hence in the above context, respondents' decision in not allotting the 5 officers to RSAP being not in public interest has to be termed as arbitrary and unreasonable.
Reverting to the core issue, if the 5 officers including Sri Vijay Kumar were to be allotted to RSAP, the ratio would change over to 62: 22 ( 35 - ( 8 +5) = 22). The resultant effect is that the size of the roster block/ number of roster blocks would vary and thereupon the allocation point.
Once the allocation point alters, the cadre allocation would undergo sequential changes. This would materially change the allocation of the applicant. Thus we observe that the respondents have not applied their mind as to where to apply the roster principles and where not. Every order passed by a public authority must disclose proper application of mind which should be evident from the record contemporaneously maintained.
Application of mind has to be inevitably revealed by the authority passing the order. It has not been explained by justifiable reasons as to why the officers referred to could not be allotted to RSAP in public interest. The reason put forth that applying roster principles they were allotted was found to be non-justifiable and illogical by us in the preceding para. Moreover, the aftermath of shrinking of the roster ratio/ number & size of the blocks and their consequential effects was not forthcoming in the reply statements.
Any decision taken without application of mind is legally unsustainable, as observed by the Hon'ble Apex Court in East Coast Railway & Anr. v.
Mahadev Appa Rao & Ors, in Civil Appeal No. 4964 of 2010 (arising out of SLP (Civil) No. 27153 of 2008) as under:Page 39 of 86 OA No.422/2016
Every order passed by a public authority must disclose due and proper application of mind by the person making the order. This may be evident from the order itself or the record contemporaneously maintained. Application of mind is best demonstrated by disclosure of mind by the authority making the order. And disclosure is best done by recording the reasons that led the authority to pass the order in question. Absence of reasons either in the order passed by the authority or in the record contemporaneously maintained is clearly suggestive of the order being arbitrary hence legally unsustainable.
The very same aspect of the roster block size and its implication for the point of allocation were discussed at length in OA 1037 of 2019 and we find it beneficial to extract the same as under, since it covers the case of the applicant as well and we unhesitatingly hold the same view in regard to the case on hand.
VIII. Delving a little deeper into the issue, we find that the number of DR outsiders from the UR cadre to be distributed is 62 IPS officers. The number required to be allotted to the State of Telangana is 27 and 35 to RSAP. Whereas, when options were called, only 8 officers opted for RSAP and therefore, there was excess preference to Telangana State over and the above the authorized limit. Hence, to attend to this issue of excess demand to the State of Telangana, the system of roster blocks was brought into vogue. Thus, 27 roster blocks were formed, as per para 8 of the approved the guidelines, of which 19 blocks were of 2 points and 8 blocks of 3 points covering all the 62 officers. The modalities to arrive at the point of allocation with reference to the size of the roster, being even or odd, as per the guidelines, is presented here under:
"Where the size of the roster block so prepared is an even number, the point next below to the number arrived at by dividing the roster block by two will be the point for allocation; and where the size of the roster block is an odd number, the mid-point will be the point of allocation."
Respondents admitted that there were 8 officers who opted for RSAP. The applicant has given the names of the 3 officers namely Sri V.S.K. Kaumudi, Sri Ray Vinay Ranjan & amp; Sri Vishnu S. Warrier, who gave equal preference for both the States. One more officer by name Sri Abhilasha Bisht has not given any option and therefore, was categorized in the NR (Non- Responsive) category. The respondents admitted that there was heavy deficit in respect of options for RSAP and that only 8 officers opted for the said State. Now looking at the mathematics of the issue there were 62 outsider DR unreserved officers who are to be distributed among the 2 states and it requires no profound administrative rational, in the face of acute shortage of IPS officers in RSAP, to allot those who gave equal preference and the NR category officer to RSAP along with the 8 who have opted for RSAP. Thereby the strength of RSAP would have increased to 12 without giving any room for grievances to emerge from the officers named. Instead, the respondents adopted the point of allocation to explain the allotment which, in the given circumstances, was an uncalled for exercise, since the theory of roster blocks was postulated when there was competition amongst officers for Telangana. A classic case of an irrational decision, since when there were 3 officers who Page 40 of 86 OA No.422/2016 gave equal preference to both the States and one officer who gave no response, it was not required to invoke the roster block concept to decide their distribution, instead, they could have been allotted to RSAP straightaway, which would have been fair, with no questions raised from any quarter and that too, in tune with the provisions of Section 80 of the Act- 2014. A simple decision was made complex by the respondents doing what not to be done and not doing what is to be done. By doing what ought not to be done, is a clear mistake on part of the respondents and the said mistake should not recoil on to the applicant as observed by the Hon'ble Apex Court in a cornucopia of judgments as under:
The Apex Court in a case decided on 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 case of M.V. Thimmaiah vs. 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."
IX. The mistake has further impacted the size and number of the roster blocks since the number of roster blocks would reduce to (27-4) = 23. With the number of roster blocks reduced to 23 the size of the roster would be 62 : 23. The variance thus makes a marked difference to the distribution process and obviously to the claim of the applicant. Respondents have only stated that they have followed the guidelines but did not explain as to why they had to resort to an unwarranted remedy when there was a simple universally acceptable option of allotting the equal preference officers and NR officer to RSAP was available. Out of the 62 officers to be distributed, the number of officers to be allotted to RSAP is 35 and to Telangana it is 27. As per the P.S. Committee guideline at clause 8.1, the size of the roster would be largely dependent on the ratio of 27 out of 62 or 35 out of 62 depending on from which State the allocation begins. The roster would be 27 out of 62 if it is Telangana and 35 out of 62 if it is RSAP and the one chosen invariably decides the size of the roster. It was stated in the said guideline that the commencement would be by drawal of lots. The relevant guideline is extracted hereunder:
"DIRECT RECRUIT - OUTSIDES.
8. xxx 8.1 Like in the first example, it would be easier to understand the process through an example. Let us assume that there are 80 DR Outsiders in the undivided State of Andhra Pradesh who are to be allocated between residual Andhra Pradesh and Telangana. As per the ratio, 45 of them would have to be allocated to the residual Andhra Pradesh and 35 to the State of Telangana. There could be two ways in which the size of the roster block could be determined. If we initiate the exercise with the intention to allocate 45 officers to residual Andhra Pradesh, the size of the roster block would be dependent on the ratio of 45 out of 80 whereas if the exercise is done with the intention to allocate 35 of the 80 officers to Telangana, the size of the roster block would be 35 out of 80. In the previous instances of allocation of officers from the undivided States of UP, Bihar and MP to the successor States, the size of the roster block had been determined with reference to the small successor state in each case. Going by those precedents, the size of the roster block should be Page 41 of 86 OA No.422/2016 determined by the figure of 35 out of 80. However, in view of the suggestion of the Government of Andhra Pradesh, the question whether the process would be initiated with reference to the residual Andhra Pradesh i.e. to adopt the roster of 45 out of 80 or Telangana i.e. the roster out of 35 out of 80, would be determined by a drawing up of lots."
The guideline once again drives home the point that the size of the roster decides the allocation process. Therefore, the respondents not acting in allotting the officers who gave equal preference to both the States and the NR category officer to RSAP, which in turn changes the roster size, is a clear case of lack of application of mind in decision making. It is well settled that decisions taken without application of mind stand invalid. Further deploying different methods to work out the roster blocks for promotes and direct recruits as adduced at paras 7 & 8 of the advisory committee guidelines, gives an unmistakable impression of the raw deal meted out to the DR outsiders by an unreasonable classification of a homogeneous group of IPS officers. We would deal with the unreasonable classification in the succeeding paragraphs.
X. Being on the subject of roster size, if the size of the roster were to be 62 :
23, by assuming the allotment of the 3 officers with equal preference and the one of the NR category were allotted to RSAP, the probability of the applicant figuring in a roster block of 3 or 4 cannot be ruled out. As for eg. the probability of the applicant with Sl. 44 being in a roster of size 3 along with serials of 43 and 45 would have facilitated the applicant to be allotted to the State of the Telangana taking the criteria of point of allocation as the mid-point in a roster with its size as an odd number viz 3.Similar prospect cannot be denied if the roster size were to be an even number of higher size. The scope to undertake such an exercise was scuttled by not allotting the 4 officers to RSAP by the respondents. It would suffice to state that the respondents mistake did make a difference to the allocation process. Discretion when not used with proper application of mind, then it would be termed as discrimination would loom large on the decision makers, as we have seen in the instant case where the applicant has been repeatedly claiming discrimination by improper application of guidelines. Denial of a fair opportunity to the applicant to be allotted to the State of Telangana, by not applying the prescribed norm as laid down in section 80of the Act-2014, would be violative of Articles 14 and 16 of the Constitution. True to speak, respondents lack the right to trample over the right of the applicant to be considered for the State of Telangana by not exploring a universally acceptable possibility of allotting the equal preference officers and the NR officer to RSAP."
VI. One another issue which is the bone of contention is as to why allocation commenced from RSAP instead of Telangana. Respondents have submitted that for roster there was a system of lottery which was adopted and not for allocation. Except for the said cryptic response there was nothing more to defend their decision in the reply statements. It is not understood as to why the respondents choose the lottery system only for Page 42 of 86 OA No.422/2016 rosters and not for the starting point of allocation. Respondents embracing the system of lottery for rosters are to be appreciated since it eliminates bias. The same could have been followed even in regard to the starting point of allocation as to whether it should be RSAP or Telangana. Having adopted the system of lottery for rosters to avoid grievances, the respondents could have adopted the same system to make the distribution of officers fair and equitable as envisioned under section 80 of the Act-2014.
Respondents unilaterally deciding to commence from RSAP, for whatever reasons they would have contemplated, is certainly not defendable, since the starting point has a marked impact on the composition of the blocks, point of allocation etc. and thereby the very process of distribution of officers using the roster method. Hence it is a major imperfection on part of the respondents to elect a system other than the lottery to embark upon the distribution process. Administrative decisions need to be objective, transparent, rational, non-discriminative and not arbitrary. Best way to avoid arbitrariness in the instant case was to adopt the lottery system. It is not the case of the respondents that they did not use the tool of lottery as they did use it for rosters and being aware of its advantages, discounting the same to decide the starting point of the allocation process, has to be understood as a decision devoid of rationality. By not adopting the lottery system respondents have exposed themselves, lock stock and barrel, to allegations of arbitrariness, as the very system of distribution would undergo a notable change depending on the starting point. We had the opportunity to have an insight into the same facet, while dealing with OA 1037/2019 wherein we did observe by banking on Hon'ble Apex Court Page 43 of 86 OA No.422/2016 judgments as under, and our observations therein apply in parallel to the instant case too.
VII. Another interesting aspect of the dispute is as to from which State the allocation of cadre should begin. Applicant alleges that as per the draw of lots it was supposed to commence with the State of Telangana. Respondents reject the contention by explaining that the draw of lots was for drawing of roster and not for initiation of the allocation. When the respondents adopted the draw of lots in respect of roster, it is not understood as to why they could not use the same method in respect of allocation of cadre. The relevant consideration, whatever it may be in the matrix of decision making by the respondents, in resorting to drawal of lots for roster equally applies for the allocation process. The decision making process to arrive at the said decision bypassing the relevant consideration of going for drawal of lots for allocation of the cadre, is a sure shot case of arbitrariness. We expected the respondents to come forward with proper reasoning in the different pleadings they put forward before the Tribunal on different occasions for not choosing the drawal of allots for allocation/distribution among the 2 States. Alas it was not to be. Any decision which is not backed by required reasoning is again an invincible case of arbitrariness. Service law expects rationality, reasonableness, objectivity, application of mind, transparency and fairness as some of the prerequisites of proper decision making. These elements are woefully missing in the decision to skip the proven method of drawal of lots for allocation. It is well known that the standard of fairness can be measured by the scope to reasonably anticipate the decision of the State in a given situation. The guidelines so drawn by the P.S. Committee should have been such that the AIS officers could have easily anticipated the State cadre they would be allotted to. Instead, respondents by adopting different stands for drawal of lots in respect of allocation and rosters, diverse swapping rules to reserved and unreserved community, have made the anticipation of the allotment of the State cadre a different ball game altogether. Guidelines or no guidelines the ultimate decision to allot a cadre has to be transparent and fair, requiring that all those concerned were dealt in a manner which is rational and justifiable. If rules provide for discretion to the authorities even in such cases the discretion exercised should not be arbitrary. As for example, when swapping for the reserved community officers was permitted across batches the same could have been extended to the unreserved officers too. After all, by swapping, the interests of the State are not adversely affected. The State would be mighty pleased to have men in position and not as to who it should be. We have no hesitation to state that the drawal of lots would have undoubtedly placed the respondents in the respectable arena of fair play Instead they commenced allocation with the State of RSAP with no rhyme and reason as to why they did so. We found no rebuttal of this assertion of the applicant by the respondents in the plethora of documents submitted by them. The beginning point of the distribution makes an ocean of a difference in the allocation of the cadres to the AIS officers. The respondents could have adopted the same method of drawal of lots even for allocation and be done with it. Instead, again we find that a decision was taken disregarding the universally accepted norm of drawal of lots which allays allegations of bias. Therefore the decision to commence the allocation with RSAP is mired with avoidable controversy, to say the least. Consequently, respondents' decision to commence the process of allocation with RSAP fringes on arbitrariness and arbitrariness in decision making is impermissible under law. While making the above remarks, we have banked on the observations made by the Hon'ble Supreme Court in Asha Sharma v. Chandigarh Admn., (2011) 10 SCC 86 : (2012) 1 SCC (L&S) 354 at page 95, as under:Page 44 of 86 OA No.422/2016
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.
xxx
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 of the situations in question were identical. This uncertainty must be avoided."
Thus considering the above we have no hesitation to hold that the decision of the respondents to not to espouse the lottery system for deciding the starting point of allocation as arbitrary and not in the realm of reason.
VII. Applicant has further asserted that the determination of the roster size was flawed for the reason that 3 officers namely Sri V.S.K Kaumudi, Sri Vinay Ranjan Ray and Sri Vishnu W. Warrier gave equal preference to the 2 States and Sri Abhilasha Bist did not given any option. The same contention was raised in OA 1037/2019 and our observations there in, are as under:
XIV. In respect of Sri Vishnu S. Warrier placed at Sl.61, he falls in the roster block of size 3 which is an odd number, with 2 other officers Sri A. Nayeem Page 45 of 86 OA No.422/2016 Asmi at Sl.60 and Sri Aishwarya Rastogi at Sl.62. When the roster block size is odd, the point of allocation would be the middle point as per the formula cited supra and therefore, since Sri Warrier being at Sl.60 the middle point, he was given Telangana. Formula-wise it is perfect but decision wise, it is difficult to appreciate that when Sri Vishnu S. Warrier has given equal preference for both the States, where was the necessity to adopt the roster formula when he could have been allotted to RSAP on grounds of administrative exigency, as there was heavy deficit for this State. Respondents have not explained in any of the pleadings as to how the other two officers who gave equal preference namely Sri V.S.K. Kaumudi and Sri Ray Vinay Ranjan were allotted to Telangana despite ample opportunities were available to them when the case was heard on innumerous occasions. We are of the firm view that guidelines framed to distribute AIS officers should not be so framed so as to create hardships as held by the Hon'ble Supreme Court in Nirmala Chandra Bhattacharjee and ors in U.O.I and ors in JT 1991 (5) SC 35 delivered on 19.9.1999, as under:
No rule or order which is meant to benefit employees should normally be construed in such a manner as to work hardship and injustice specially when its operation is automatic and if any injustice arises then the primary duty of the courts is to resolve it in such a manner that it may avoid any loss to one without giving undue advantage to other. Our endeavor is thus to undo the injustice done to the applicant, caused by decisions of the respondents which are neither consistent nor in resonance with the legal principles discussed supra, in tune with the letter and spirit of the verdict of the Hon'ble Apex Court cited above. "
Respondents by not allotting the officers who gave equal preference to RSAP, have created hardships to the applicant in getting allotted to Telangana. There would not have been any grievance to the 3 officers named if they have been allotted to RSAP. On the contrary it would have been beneficial to the respondents organization, since the 4 officers including the one who did not give any option, if allotted to RSAP, would have created that much room to accommodate officers like the applicant to Telangana without any eye brow raised by any one. Administrative excellence is all about arriving at the goal post most efficiently without much rancor. Unfortunately, respondents methods created hardships which did not resonate with Section 80 (b) of the Act-2014 and such methods being divergent to the observation of the Hon'ble Supreme Court as at above, will not hold ground.Page 46 of 86 OA No.422/2016
VIII. One more contention of the applicant is that the Principle of reservation was not followed in respect of Sri V. Brijlal, an IPS officer of 2001 batch. Sri Brijlal who belongs to the ST community was selected to the IPS on merit. The reservation rules are clear that any one from the reserved community selected on account of merit will be adjusted against unreserved vacancy. Hence Sri Brijlal selected on merit will be governed by the rules applicable to the UR candidates. That being so, in respect of Sri Brijlal even while being allotted among the 2 states, the norms applicable to him are those which relate to the UR. However, guidelines recommended for reserved candidates were applied to decide his allotment to Telangana.
If Sri Brijlal were to be treated as a UR candidate the applicant would have got Telangana, is his fervent submission. The contended probability does exist and it cannot be ruled out. Respondents while framing the guidelines need to respect the principle of reservation of considering those selected on merit as UR candidate and prescribe the same guidelines to meritorious reserved community candidate while recommending allocation. The provisions of reservation have a constitutional backing, since the objective of adjusting meritorious reserved community candidates against UR vacancies is to enable those reserved candidates who could not qualify on merit to be adjusted against the reserved vacancies. The one who made it on merit requires no reservation since he is on par with the UR candidates, when it comes to selection on merit. The very objective of reservation has thus been lost sight of Therefore, the guideline of allotting Telangana to Sri Brijlal, by treating him as a reserved candidate is incongruent to the settled principles of reservation and is thus unfair, since it is desecration of Section 80 (1) (b) of the Act-2014. Besides, an approach of the nature Page 47 of 86 OA No.422/2016 adopted in respect of Sri Brijlal goes against the provisions of CAP/AIS act and cadre rules 1954. PS committee guidelines have to be in harmony with the rules laid down with the provisions of the other Acts having nexus to the issue and not in contravention of the same. Particularly in the context of Section 76(5) of the Act-2014, extracted hereunder, making it unambiguously clear that nothing in the act will be deemed to affect the provisions of the AIS Act 1951 or the Rules made therein.
76. Provisions relating to All-India Services.--
(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.
(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 (61 of 1951), or the rules made IX. Another interesting feature of the dispute is the question relating to domicile. Respondents have framed guidelines for distribution of cadre based on domicile for allotting AIS officers belonging to the DR insider quota. The applicant belongs to the DR-Outsider-UR category and therefore respondents out rightly rejected his contention for allotment of Telangana cadre since he is not a DR insider. Their rejection is based on the 8 principles chosen by the Advisory Committee for distribution. The said Page 48 of 86 OA No.422/2016 Principles laid down, and reproduced hereunder, were adduced by the respondents in the reply statement at para 3.12, submitted by R-1 in OA 230/2020 dated 9.11.2020, pertaining to the case of an AIS officer, wherein domicile was the critical factor to decide the dispute in regard to cadre allocation.
"3.12 After detailed consideration of the statutory provisions and case law regarding allocation of cadres in All India Services, the Advisory Committee recommended the norms and principles to be adopted for allocation of Telangana Cadre to All India Services officers borne on the cadre of undivided Andhra Pradesh. The main features of the principles adopted for distribution are stated as under:-
i) The AIS officers borne on the cadre of undivided Andhra Pradesh as on 1st June, 2014 would be distributed.
ii) They would be distributed in the ratio of 13:10 between Andhra Pradesh and Telangana keeping main features with respect to DR/Promotee, insider/ outsider and reserved/ general intact. Any deficit or surplus from cadre strength existing in undivided AP would be distributed pro-rata.
iii) Promotion quota (PQ) officers would be allocated as per their domicile status as communicated by the State Government. Any surplus of officers in any State has to be shifted to the other by following a roster.
iv) Direct recruit insiders would be sub-divided into categories such as UR/OBC/SC and ST. They would be distributed on the basis of their domicile status. Any surplus in any of the categories would be moved to the other State as per roster.
v) Direct recruit outsiders would be sub-divided category wise and distributed as per a roster.
vi) The officer picked up within the roster block for shifting to a State would have an option for exchange with willing officers within the roster block in descending order of seniority if necessary. This would be adopted for all officers and all categories except UR category in direct recruit outsiders.
vii) For UR category under direct recruit outsiders, swapping of Officers on the basis of their willingness would be available within a batch rather than the roster block.
viii) After finalizing the exercise an mentioned in para (i) to (vii) above, a fresh window will also be opened to all officers to opt for swapping with another officer within the same category and in the same grade pay as on01.06.2014.
Married couples belonging to All India Services and officers retiring within 2 years will also be given opportunity for shift of cadre. "
Respondents have relied on clauses (iv) & (v) of the distribution principles to deny the claim of the applicant. The dispute requires a closer look from the perspective of how the notion of domicile has to be gauged. The approved guidelines of the advisory committee as presented at para 4.11 of the reply statement in OA 230/2020 by R-1 are reproduced hereunder:Page 49 of 86 OA No.422/2016
"4.11 As per the recommendations of the Pratyush Sinha Committee, the basis of determination of domicile would be as per the information contained in the UPSC dossiers/ Training institute where the officer joined for the first time as per para 5.1.3 of the approved guidelines which is reproduced as under (annexure R-5):
"As far as the domicile status is concerned, it would be determined as per the information contained in the UPSC dossiers/ Training Institute where the officer joined for the first time. In the absence of such information, the basis of determination would be as per the following in their descending order of priority. The succeeding information is to be referred only when preceding information is not available:-
(i) The Permanent postal address of the officer/ Applicant in the absence of which the postal address as per entries available in the Detailed Application Form of UPSC/ dossier of the Training Institute where an officer goes for the training at the time of joining the service.
(ii) The place of birth of the Applicant, the district and State in which it is situated as given in the Matriculation examination certificate or equivalent of the officer.
(iii) The domicile factor as determined in accordance with the Presidential Order issued as per Article 371-D of the Constitution of India.
(iv) The address of the educational institutions (s) where the Applicant underwent education (matriculation level).
(v) The home town, district and the State to which the father of the officer originally belonged."
Domicile is by origin or choice or dependency as per law. In the instant case, the information provided at 4,12,13,16 & 17 of the detailed application form of UPSC, as presented hereunder, and the information provided by the DGP in his letters on 21.3.2014 & 22.4.2014, provide the basis as per the claim of the applicant, to consider him as domiciled in the State of Telangana by birth, vis-à-vis the domicile guidelines outlined by the respondents as at above.
4 (a) Address for correspondence (including ABHISHEK MOHANTY candidate's name) in English BLOCK PJ-47, OFFICERS COLONY, CAPITALS to which communications to PUNJAGUTTA, HYDERABAD, be sent AP - 500082 12 Details of Educational Institutions attended from 1st Standard to the last degree Name of the Place District/ State Class Year School From To From To Kendriya CHARBATIA Cuttack/ 1st 3rd 1991 1994 Vidyalaya Orissa Bharatiya Vidya Hyderabad Hyderabad, 4th 10th 1994 2001 Bhavan AP Page 50 of 86 OA No.422/2016 Ratna Junior Hyderabad Hyderabad, 11th 12th 2001 2003 College AP Vasavi College Hyderabad Hyderabad/AP B.E. BE 4th 2003 2007 of Engineering, 1st Year Osmania Year University 13 Details of examinations passed commencing with Matriculation or equivalent examination Examin Class/ Percenta Year Subject Name of Name of ation Division ge of School/ Board/ pass Grade Marks College University/ Institution 10th 1st 87.6 2001 English, Math, Bharatiya CBSE Board Science, Vidya Social Bhavan Science, Sanskrit 10+2 1ST 97.0 2003 English, Ratna Board of Maths, Junior Intermediate Physics, College Education Chemistry, AP Sanskrit B.E. 1st Class 80.4 2007 Computer Vasavi Osmania with Science and College of University Engineering Distinction Engineering 16(a) Name of Father Ajit Kumar Mohanty
(b) Name of Mother Rajashree Mohanty
(c) Nationality of Father Indian
(d) Nationality of Mother Indian
(e) Father's present postal Address (if PJ-47, OFFICERS COLONY, deceased give last address) PUNJAGUTTA, HYDERABAD, AP
- 500082
(f) Mother's present postal Address (if PJ-47, OFFICERS COLONY, deceased give last address) PUNJAGUTTA, HYDERABAD, AP
- 500082
(g) Father's Profession Retired from Indian Police Service
(h) Mother's Profession House wife
(i) If your father is in service, indicate the Chairman, Andhra Pradesh Road post held by him (if retired, indicate Safety Authority the post held by him at the time of retirement)
(j) If your Mother is in service, indicate NA the post held by her (If retired, indicate the post held by her at the time of her retirement)
(k) Annual income of your father Rs.22,00,000/- Apprx.
(l) Annual income of your mother Rs.60,000/- Apprx.
(m) District and State to which your father District: PURI, State: ORISSA originally belongs Page 51 of 86 OA No.422/2016
(n) District and State to which your District: KHURDA, State: ORISSA Mother originally belongs 17 Place of Birth HYDERABAD District Hyderabad State Andhra Pradesh The issue to be resolved is as to whether the information in the DAF could be taken as the foundation for consideration of the applicants request for Telangana Cadre, by reckoning the fact that he has acquired the domicile of the State of Telangana by birth. Primarily it is evident from the details furnished in the DAF to UPSC that as per birth certificate enclosed with the rejoinder, applicant was born in Hyderabad and his postal address was given as PJ-47, Officers Colony, Punjagutta, Hyderabad. His father worked as an AIS officer and retired as Chairman, A.P. Road Safety Authority. The applicant's education commencing from 4th standard to completing graduation in Engineering was through institutions located at Hyderabad. The applicant did mention that he belongs to the State of Orissa at column
19. When questioned, the Ld. Counsel for the applicant has submitted that the applicant's parents belong to Orissa, as furnished in the DAF and therefore applicant has stated so at that instant of time, not knowing the import of such submission as a candidate lacking knowledge of law. The ld applicant counsel emphasized that column 19 was not in the context of domicile and legally applicant's domicile is the State of Telangana by birth and other particulars given in the DAF with reference to the domicile guidelines advanced by the respondents. The letters addressed to the DGP on 21.3.2014 the applicant claimed that he is a DR insider, since he was born in Hyderabad. Respondents have not dealt with the claim made by Page 52 of 86 OA No.422/2016 applicant in 2014. It was the bounden duty of the respondents to either accept or reject the claim when made. If the respondents were to reject the claim, applicant could have explored legal remedies available at the relevant point of time. Seeking information and thereafter, not acting upon it, is administratively unwise. Information is sought for a purpose and not otherwise. Of relevance is that, when the information provided had something contrarian, respondents, all the more, have to react, lest it would be presumed that information furnished was valid. Usually, silence is construed as acquiescence. Nevertheless, we have dealt this issue in one another similar case of cadre allocation of an AIS officer as pointed out supra by looking at the various pros and cons of the aspect of domicile in OA 230/2020 and have held that domicile by birth/ choice/ parentage has to be taken cognizance of. We are of the view that the observations therein apply to the applicant as well, but for the illogical discrimination steered in with respect to the case of the applicant on the ground of DR outsider, though he satisfies the conditions for acquiring domicile in the State of Telangana as per law and as well in terms of the factors set to determine domicile by the respondents, of course with a restrictive clause that domicile as a factor would apply to only DR insiders in regard to cadre allocation. It is this restrictive clause which we find is not sustainable in the eyes of law. A ward of an officer, serving other than his Home State, cannot be proscribed from acquiring the domicile of a State as per law. The relevant paras of OA No. 230/2020 cited are reproduced hereunder:
V. 'Domicile' by definition would mean the country/State/place that a person treats as his permanent home, or lives in and has a substantial connection with.Page 53 of 86 OA No.422/2016
In law, domicile is the status or attribution of being a lawful permanent resident in a particular jurisdiction. A person can remain domiciled in a jurisdiction even after they have left it, if they have maintained sufficient links with that jurisdiction or have not displayed an intention to leave permanently. Depending on a person's circumstances, domicile has historically been based upon domicile of origin, choice and dependency. In the instant case, we are concerned with the domicile of origin and choice. a. The domicile of origin is acquired by:
i. the father's domicile, where the father was alive at the child's birth, ii the mother's domicile, where the father was not alive at the child's birth, or where the child was illegitimate iii. where the parents were not known, the domicile was the place in which the child was found b. Coming to the domicile of choice, it would be acquired, i. when a child reached the age of majority, and had subsequently settled in another jurisdiction with the intention of making it their permanent home ii. when a person moves away from a domicile of choice with the intention of settling in another jurisdiction, but has not yet done so, their domicile reverts to the domicile of origin until settlement in a new permanent home has taken place.
The general principles of domicile are that a person can have only one domicile at any given instant of time. It is settled in law that every individual, the moment he is born, he acquires the domicile of the father, which is the domicile of origin, as explained above. The domicile of choice is acquired when on becoming major, one elects to do so and continues to hold the acquired domicile as per his will and wish. When an individual's domicile of Choice subsists the domicile of origin will recede. However, the domicile of origin being a creature of law and not being dependent on the will of the individual it revives and exists when there is no other domicile. Domicile of origin is involuntary and the domicile of choice is voluntary. Moreover, domicile of Choice is an inference from the fact of an individual fixing his residence in a particular place with the unlimited intention of continuing to reside there. There must be a residence freely chosen which should be general as well as coupled with indefiniteness and not dictated by the duties of office. The domicile of origin is extinguished by an act of law by the delivery of a death sentence or forcing someone to exile or outlawry whereas domicile of choice can be put to an end the same way as it was gained. Ordinarily domicile operates as the basis of jurisdiction, in vital aspects of a person's private life like marriage, legitimacy and succession. Every person must have a personal law, and accordingly everyone must have a domicile. An individual also receives at birth a domicile of origin which remains his domicile, wherever he goes, unless and until he acquires a new domicile. The domicile of origin is received by operation of law at birth and for acquisition of a domicile of choice one of the necessary conditions is the intention to remain there permanently. The domicile of origin provides the legitimacy as is required in deciding the allocation of a cadre.
VI. Applying the above principles to the case of the applicant, we observe from the dossier of the UPSC for the CSE -1987 (Sl. 70 to 80 of the reply statement) that the district of the father of the applicant was shown as Krishna, which is a part of the successor State of A.P. Applicant was born in Vishakhapatnam which is again in the successor State of A.P and by the operation of law at birth, the domicile of the applicant is the residual State of A.P. Applicant's submitted a letter on 26.4.2014 to the respondents, wherein it is clear from the details that her mother hails from Guntur which comes under the jurisdiction of the successor State of A.P. Therefore, on all counts, the domicile of origin of the applicant would necessarily be the successor Page 54 of 86 OA No.422/2016 State of A.P. It has not been extinguished by any act of law as no evidence to this effect has been placed on record. The principle approved condition formulated by the advisory committee for allocation of AIS officers is domicile as per clause (iv) cited supra. The involuntary domicile of origin of the applicant as per law is thus the successor State of A.P. for reasons explained. Domicile of origin extends the legitimacy to the applicant's claim for allocation of the present A.P cadre. Respondents asserted in the reply statement that the guidelines were framed after referring to relevant legal principles and consulting experts/ stakeholders. There is no disagreement with the contention but the hitch is about the application of the concept of domicile in deciding the cadre of the applicant. We find that the basic premise of law in respect of domicile of origin has not been given the required weightage, as is predetermined under law, in responding to the applicant's plea in regard to cadre allotment. It requires no reiteration that law prevails over executive instructions.
Respondents chose the present postal address of the applicant given in the DAF- CSE -1987 at column 6(a), as Secunderabad which lies in the jurisdiction of the successor State of Telangana. Based on the same and following the advisory committee guidelines, respondents claim that the Telangana Cadre was allotted to the applicant. However, applicant has explained that her father was working for the Indian Railways as Chief Engineer at Secunderabad and therefore gave the present address as Secunderabad. This is corroborated by the fact that the address given by the applicant at column 20 (c) in regard to her father's present Postal Address is1004, Railway Officers Colony, South Lallaguda, Secunderabad. The Secunderabad address came into the picture because her father was discharging his duties as Chief Engineer, an assignment which had All India transfer liability. Therefore, the said address would be a temporary address liable for change depending on his postings and that can be no criteria to bank upon for cadre allocation, when primarily the domicile of the applicant was well established under law and is in resonance with the approved guideline of essentially considering the domicile as the preliminary condition. If sufficient material was not available to decide domicile, the other parameters would come into play. In the instant case, when domicile was the principle for allocation of cadre as per the Advisory Committee, then legalistically it has to be the successor State of A.P on the basis of well described legal principles discussed so far. There is no evidence placed on record by the respondents to establish that the applicant has changed her domicile by choice to Secunderabad nor to disprove that her domicile of origin as the successor State of A.P. We rely on the following judgments in support of our above observations:
a. George Udny v John Henry Udny of Udny [1869] UKHL 2Paterson 1677, (1869) LR 1 HL 441 (3 June 1869), pp.1686-1687 A person can have only one domicile at any given time, and the manner in which it could change was explained in 1869 in the House of Lords by Lord Westbury in Udny v Udny:
It is a settled principle, that no man shall be without a domicile, and to secure this result the law attributes to every individual as soon as he is born the domicile of the father if the child be legitimate, or the domicile of the mother if illegitimate. This has been called the domicile of origin, and it is involuntary. Other domiciles are domiciles of choice, for, as soon as the individual is sui juris, it is competent to him to elect and assume another domicile, the continuance of which depends upon his will and act. When another domicile is put on, the domicile of origin is for that purpose relinquished, and remains in abeyance during the continuance of the Page 55 of 86 OA No.422/2016 domicile. But as the domicile of origin is the creature of law, and independent of the will of the party, it would be inconsistent with the principles on which it is by law created and ascribed, to suppose, that it is capable of being, by the mere act of the party, entirely obliterated and extinguished. It revives and exists whenever there is no other domicile, and it does not require to be regained or reconstituted animo et facto in the manner which is necessary for the acquisition of a new domicile of choice. Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place with the unlimited intention of continuing to reside there. This is a description of the circumstances which create or constitute a domicile, and not a definition of the term. There must be a residence freely chosen and not prescribed or dictated by any external necessity such as the duties of office, the demands of creditors, or the relief of illness. And it must be residence fixed not for any defined period or particular purpose, but general and indefinite in its future duration. It is true, that residence originally temporary, or intended only for a limited period, may afterwards become general and unlimited, and in such a case, so soon as the change of purpose or the animus manendi may be inferred, the fact of domicile of origin may be extinguished by act of law, as, for example, by sentence of death, exile, and perhaps outlawry, but it cannot be destroyed by the act of the party. Domicile of choice, if it is gained animoet facto, may be put an end to in the same manner. Expressions are found in some books in one or two cases, to the effect, that the first domicile remains until another is acquired. This is true, if applied to the domicile of origin, but it cannot be true if such general words were intended (which is not probable) to convey the conclusion, that a domicile of choice, though unequivocally relinquished and abandoned, clings, in spite of his will and act. to the party until another domicile has animo et facto been acquired. The cases to which I have referred are in my opinion met and controlled by other decisions, but more especially by the reason of the thing.
A natural born Englishman may, if he domiciles himself in Holland, acquire the status civilis of a Dutchman, which is of course ascribed to him in respect of his settled abode in Holland, but if he breaks up his establishment, sells his house and furniture, discharges his servants, quits Holland, declaring that he will never return to it again, and taking with him his wife and children for the purpose of travelling in France or Italy in search of another place of residence, can it be said, that he carries his Dutch domicile on his back, and that it clings to him pertinaciously until he has finally set up his tabernacle in another country? Such a conclusion would be absurd. But there is no absurdity, but, on the contrary, much reason in holding, that an acquired domicile may be effectually determined by an unequivocal intention and act, and that, when it is so determined, the domicile of origin instantly revives, and continues until a new domicile of choice is acquired.
b. Supreme Court of India in Union Of India And Ors vs. Dudh Nath Prasad on 4 January, 2000 in Appeal (Civil) 1387 of 1991referred to Udny v. Udny cited above and made the following observations: Lord Macnaghten in Wrnansv..A.G., (1904) A.C. 290, observed that Domicile of origin, or, as it is sometimes called, perhaps less accurately, domicile of birth, differs from domicile of choice mainly in this -that its character is more enduring, its hold stronger and less easily shaken off;Page 56 of 86 OA No.422/2016
xxxx To bring home the point we may quota a few words from the New jurisprudence (The grammar of Modern Law) by Justice P.B. Mukharji (Tagore Law Lectures), as under:
Certain principles relating to domicile have taken firm root in common Law countries. The principles may be stated in the form of propositions in the light of the famous case of Udny v. Udny, (1869) L.R. 1SC. App. 441. Every person must all the time be said to possess a domicile. There can be one domicile at a time and no person can have plural domicile. Secondly, the basic question whether certain facts do or do not constitute domicile is ordinarily decided by the municipal law of the court of the country deciding. Naturally, lexfori plays a significant part in this question of Renvoi where domicile is the connecting factor. Casdagli v. Casdagli, (1919) AC 145, xxxx The classical division of domicile is well known. There are the domicile of origin, the domicile of choice and the domicile of dependence. There has been little change in the essential concept of these three domiciles. Domicile and residence are different and yet related concepts. Ordinarily domicile operates as the basis of jurisdiction, in such vital aspect of a person's private life like marriage, legitimacy and succession. But on the other hand residence operates as the basis of jurisdiction in cases like taxation, right to vote, in certain aspects of matrimonial question, and generally in cases where public rights are involved.
c. Supreme Court of India in Abdus Samad vs State Of West Bengal on 12 September, 1972 in AIR 1973 SC 505, 1973 CriL J1, (1973) 1 SCC 451, 1973 (5) UJ 380 SC held as under:
6. In the present case the domicile of origin communicated by operation of law to the appellant at birth at Sylhet could not on partition of India be called Indian. The domicile of choice is that every person of full age is free to acquire in substitution for that which he possesses at the time of choice. By domicile is meant a permanent home. Domicile means the place which a person has fixed as a habitation of himself and his family not for a mere special and temporary purpose, but with a present intention of making it his permanent home. Domicile of choice is thus the result of a voluntary choice.
7. Every person must have a domicile. A person cannot have two simultaneous domiciles. Domicile denotes connection with the territorial system of law. The burden of proving a change in domicile is on those who allege that a change has occurred.
d. Louis De Raedt v Union of India and ors. in Writ petition (Civil) Nos.1410 and 1372 of 1987 and Writ Petition(Criminal) No. 528 of 1987 decided on July 24,1991:
"9. There is no force in the argument of Mr. Verghese that for the sole reason that the petitioner has been staying in this country for more than a decade before the commencement of the Constitution, he must be deemed to have acquired his domicile in this country and consequently the Indian citizenship. Although it is impossible to lay down an absolute definition of domicile, as was stated in Central Bank of India v. Ram Narain, [1955] 1 SCR 697 it is fully established that an intention to reside forever in a country where one has taken up his residence is an essential constituent element for the existence of Page 57 of 86 OA No.422/2016 domicile in that country. Domicile has been described in Halsbury's Laws of England, 4th edition, Volume8, Paragraph 42 1) as the legal relationship between individual and a territory with a distinctive legal system which invokes that system as his personal law. Every person must have a personal law, and accordingly every one must have a domicile. He receives at birth a domicile of origin which remains his domicile, wherever he goes, unless and until he acquires a new domicile. The new domicile, acquired subsequently, is generally called a domicile of choice. The domicile of origin is received by operation of law at birth and for acquisition of a domicile of choice one of the necessary conditions is the intention to remain there permanently. The domicile of origin is retained and cannot be divested until the acquisition of the domicile of choice. By merely leaving his country, even permanently, one will not, in the eye of law, lose his domicile until he acquires a new one. This aspect was discussed in Central Bank of India v. Ram Narain (supra)where it was pointed out that if a person leaves the country of his origin with undoubted intention of never returning to it again, nevertheless his domicile of origin adheres to him until he actually settles with the requisite intention in some other country. The position was summed in Halsbury thus:
He may have his home in one country, but be deemed to be domiciled in another. Thus the proposition that the domicile of origin is retained until the acquisition of a domicile of choice is well established and does not admit of any exception.
10. For the acquisition of a domicile of choice, it must be shown that the person concerned had a certain state of mind, the animus manendi. If he claims that he acquired a new domicile at a particular time, he must prove that he had formed the intention of making his permanent home in the country of residence and of continuing to reside there permanently. Residence alone, unaccompanied by this state of mind, is insufficient.
11. Coming to the facts of the present cases the question which has to be answered is whether at the commencement of the Constitution of India the petitioners had an intention of staying here permanently.
The burden to prove such an intention lies on them. Far from establishing the case which is now pressed before us, the available materials on the record leave no room for doubt that the petitioners did not have such intention. At best it can be said that they were in certain about their permanent home. During the relevant period very significant and vital political and social changes were taking place in this country, and those who were able to make up their mind to adopt this country as their own, took appropriate legal steps. So far the three petitioners are concerned, they preferred to stay on, on the basis of their passports issued by other countries, and obtained from time to time permission of the Indian authorities for their further stay for specific periods. None of the applications filed by the petitioners in this connection even remotely suggests that they had formed any intention of permanently residing here.
12. None of the cases relied upon on behalf of the petitioners is of any help to them. The case of Mohd. Ayub Khan was one where the appellant had made an application to the Central Government under Section 9(2) of the Indian Citizenship Act, 1955 for the determination of his citizenship. Section 9(1) says that if any citizen of India acquired the citizenship of another country between 26.1. 1950 and the commencement of the Citizenship Act, he ceased to be a Page 58 of 86 OA No.422/2016 citizen of India and sub-section (2) directs that if any question arises as to whether, when or how any person has acquired the citizenship of another country, he shall be determined by the prescribed authority. Mohd. Ayub Khan was a citizen of this country at the commencement of the constitution of India and was asked to leave the country for the reason that he had obtained a Pakistani Passport. The question which thus arose in that case was entirely different. The case of Kedar Pandey v. Narain Bikram Sah, (supra), does not help the petitioners at all. On a consideration of the entire facts and circumstances this Court concluded that, the requisite animus manendi as has been proved in the finding of the High Court is correct, The Respondent Narain Bikram Sah, who claimed to have acquired Indian citizenship, had extensive properties at large number of different places in India and had produced many judgments showing that he was earlier involved in litigations relating to title, going upto the High Courts in India and some time the Privy Council stage. He was born at Banaras and his marriage with a girl from Himachal Pradesh also took place at Banaras and his children were born and brought up in India. Besides his other activities supporting his case, he also produced his Indian passport. In the cases before us the learned counsel could not point out a single piece of evidence or circumstance which can support the petitioners case, and on the other hand they have chosen to remain here on foreign passports with permission of Indian authorities to stay, on the basis of the said passports. Their claim, as pressed must, therefore, be rejected."
e. Yogesh Bhardwaj v State of U.P and ors, 1991 AIR 356 "20. We find it relevant to refer to two Judgments of the Apex Court. In the case of Yogesh Bhardwaj vs. State of U.P. and others, reported in (1990) 3 Supreme Court Cases, Page 355,the Apex Court in Para 17 and 21 observed thus:
17. Residence is a physical fact. No volition is needed to establish it.
Unlike in the case of a domicile of choice, animus manendi is not an essential requirement of residence. Any period of physical presence, however short, may constitute residence provided it is not transitory, fleeting or casual. Intention is not relevant to prove the physical fact of residence except to the extent of showing that it is not a mere fleeting or transitory existence. To insist on an element of volition is to confuse the features of residence with those of domicile.
21. While residence and intention are the two essential elements constituting the domicile of choice, residence in its own right is a connecting factor in a national legal system for purposes of taxation, jurisdiction, service of summons, voting etc. To read into residence volition as a necessary element is, as stated above, to mistake residence for domicile of choice, and that is the error which the High Court appears to have committed. Where residence is prescribed within a unified legal system as a qualifying condition, it is essential that the expression is so understood as to have the widest room for the full enjoyment of the right of equality before the law. Any construction which works to the disadvantage of the citizen lawfully seeking legitimate avenues of progress within the country will be out of harmony with the guaranteed rights under the Constitution, and such a construction must necessarily be avoided.
The legal axioms enunciated above by the superior judicial fora are undeniably in favour of the applicant, which affirm that applicant's domicile is the successor State of A.P. Once domicile is taken as the principle to Page 59 of 86 OA No.422/2016 determine the allocation of cadre, as recommended by the Advisory Committee, then the applicant should have been allotted to the successor State of A.P. We therefore hold that as per law, the applicant is legally entitled to be allotted to the successor State of A.P. Not doing so is illegal." Applying the legal principles laid down by superior judicial fora as at above and by taking into consideration the information provided by the applicant in the detailed application form submitted to UPSC to evaluate the same against the norms set for allotting the cadre on the basis of domicile, the applicant has made out a loaded case by relying on the fact that he has acquired the domicile in the State of Telangana by birth. Respondents overlooking the law while laying down the guidelines in respect of domicile, is not the mistake of the applicant and therefore he should not be penalized. It is settled law that no one should be penalized for no fault of his, as observed by the Hon'ble Apex Court in Mohd. Ghazi v. State of M.P., 2000 (4) SCC 342. When law provides for acquiring domicile by birth/ choice, then the distribution guidelines need to be tuned to law and should not be discriminatory by extending the benefit to the DR insider and not to the DR outsider. Importantly, both the categories of AIS officers are citizens of India and domicile laws apply equally to both of them with no exception. Hence the guideline to restrict the allocation based on domicile to DR insider and not to DR outsiders is undoubtedly discriminative and is thus injurious to Article 14 of the Constitution. Hence, not lawful. X. The respondents do lay down the policy of cadre allocation periodically depending on the need and the circumstances, to suit the changing demands of the society and make the AIS an effective instrument of governance. The case of the applicant is governed by the CAP-2008, Page 60 of 86 OA No.422/2016 where in the element of merit was given due credence for allocation to a given State Cadre. The applicant claims that he was allotted to the composite State of A.P based on merit. Therefore, allotting Sri Sunpreet Singh who was lower in merit with respect to the applicant to Telangana, is an infraction of the CAP -2008 which is statutory in nature, since it has roots in the AIS act -1951 and cadre rules of 1954. Any guidelines framed need necessarily conform to the broader aspects of the CAP and more so when the Act-2014 has stated so in section 76 (5), wherein it was stated as under:
'Nothing in this section shall be deemed to affect the operation, on or after the appointed day, of the All-India Services Act, 1951 (61 of 1951), or the rules made' The respondents tried to rationalize their defense by stating that the Act-
2014 has not provided for considering CAP while laying down the guidelines. This submission would not stand in the face of the prescription in Section 76 (5) of the Act -2014. It is a different matter that the applicant could not have been allotted based on his merit but allotting those less meritorious than the applicant will have legal implications and it is in this background, the guidelines will have to be scrutinized. Administrative instructions/circulars are to be issued conveying the intent of the legislative act. It cannot be otherwise. In the instant case the Act-2014 has emphasized a fair and equitable distribution of the officers under Section 80 of the Act-
2014. By allowing the benefit of being given Telangana Cadre to a less meritorious IPS officer, overlooking the claim of the more meritorious applicant would not by any stretch be understood as fair and equitable and hence the Section 80 of Act-2014 was not followed in letter and spirit. The requirement of the administrative guidelines to toe the line of the legislative Page 61 of 86 OA No.422/2016 purport has been upheld by the Hon'ble Supreme Court in many judgments, as cited by the applicant, as under:
i) Ashok Lanka & Anr. v. Rishi Dixit & Ors - 2005 (5) SCC 598 "We are not oblivious of the fact that framing of rules is not an executive act but a legislative act; but there cannot be any doubt whatsoever that such subordinate legislation must be framed strictly in consonance with the legislative intent as reflected in the rule making power contained in Section 62 of the Act."
ii) Bombay Dyeing & Mfg. Co. Ltd v. Bombay Environmental Act Group & Ors - 2006 (3) SCALE 1:
"A policy decision, as is well known, should not be lightly interfered with but it is difficult to accept the submission made on behalf of the learned counsel appearing on behalf of the appellants that the Courts cannot exercise their power of judicial review at all. Xxx A subordinate legislation, it is trite, must be reasonable and in consonance with the legislative policy as also give effect to the purport and object of the Act and in good faith."
iii) Ministry of Chemicals & Fertilizers, Govt. of India v. Cipla Ltd -
"A legislative policy must conform to the provisions of the constitutional mandates. Even otherwise a policy decision can be subjected to judicial review."
iv) Clariant International Ltd & Anr. v. Securities and Exchange Boards of India - 2004 (8) SCC 524:
"When any criterion is fixed by a statute or by a policy, an attempt should be made by the authority making the delegated legislation to follow the policy formulation broadly and substantially and in conformity therewith."
v) Kerala Samsthana Chethu Thozhilali Union v. State of Kerala & Ors. - 2006 (3) SCALE 534:
"Both the power to frame rules and the power to impose terms and conditions are, therefore, subject to the provisions of the Act. They must conform to the legislative policy. They must not be contrary to the other provisions of the Act. They must not be framed in contravention of the constitutional or statutory scheme."
vi) St. John Teachers Training Institute v. Regional Director National Council for Teacher Education & Anr. in Appeal (Civil) 1068 of 2003 dt. 7.02.2003 -
"The power to make a subordinate legislation is derived from the enabling Act and it is fundamental that the delegate on which such a power is conferred has to act within the limits of authority conferred by the Act. Rules cannot be made to supplant the provisions of the enabling Act but to supplement it."
vii) In Craies on Statute Law, 7th Edition, it is stated at page 297:
"The initial difference between subordinate legislation (of the kind dealt with in this chapter) and statute law lies in the fact that a subordinate law-making Page 62 of 86 OA No.422/2016 body is bound by the terms of its delegated or derived authority, and that courts of law, as a general rule, will not give effect to the rules, etc., thus made, unless satisfied that all the conditions precedent to the validity of the rules have been fulfilled."
viii) In G.P. Singh's Principles of Statutory Interpretation, Tenth Edition, it is stated at page 916:
"Grounds for judicial review- Delegated legislation is open to the scrutiny of courts and may be declared invalid particularly on two grounds : (a) Violation of the Constitution; (b) Violation of the enabling Act."
Therefore, the respondents decision to allot Telangana Cadre, to Sri Sunpreet Singh ignoring the CAP -2008, is not in terms of the legal principles laid down by the Hon'ble Apex Court in the above verdicts. Though the respondents have justified their decision by claiming that they have followed the roster theory, but yet we are of the view that there should have been harmonious blend of the two i.e. merit and roster principles. If this was done the grievances galore, which we are adjudicating in regard to allocation of cadres after bifurcation of the State of A.P could have been minimal. Hence the PS committee recommendation suffers infirmity to the extent as stated above.
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 Page 63 of 86 OA No.422/2016 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 found that the respondents have not acted in conformity with the rules/ functions Page 64 of 86 OA No.422/2016 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.Page 65 of 86 OA No.422/2016
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. 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.
XII. Coming to the other judgment of the Hon'ble Apex Court, relied upon by the respondents is Union of India and Others v. Rajiv Yadav, IAS and Others, (1994) 6 SCC 38, where in 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 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.
Hon'ble Apex Court in its own judgment in C.M. Thri Vikrama Varma v.
Avinash Mohanty and Others, (2011) 7SCC 385, dealt with a dispute relating to cadre allocation on the basis of a declared policy contained in the letter dated 31.05.1985. The Hon'ble Apex Court observed that an AIS officer has no right to any particular cadre. However, he has a right to fair and equitable treatment in the matter of allocation under Articles 14 & 16 of the Constitution. In fact, 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 defense of the Government that the cadre Page 66 of 86 OA No.422/2016 allocation is a complex process was rejected by observing that a pleading made before a Court by a citizen that his fundamental right to equality has been violated gains importance rather than the acclaimed complicated process of cadre allocation.
The important observation is that an AIS officer has a right to fair and equitable treatment in the matter of allocation under Articles 14 & 16 of the Constitution. Section 80 of Act -2014 has also professed the same.
We for one have found many angularities in the distribution process as outlined in the preceding paras, and referring to them would be repetitive and hence we confine our observation to state that the respondents have lost sight of the soul of the entire exercise of distribution ie section 80 (b) of the Act-2014, by acting in a manner not in rhythm with the spirit of the said section and hence in view of the later date observation of the Hon'ble Apex court in 2011 in Thri Vikram Rao, the judgment in Rajiv Yadav relied upon by the respondents would not be of any assistance to them.
Further, in an identical case dealing with similar issue of cadre change in OA 1241/2014, the coordinate bench of this Tribunal has given the detailed reasons relying on the judgments of the superior judicial fora, as to why the Tribunal need to interfere in the decision of the respondents of allocation cadres based on PS committee recommendation, as under:
"51. During the course of arguments, learned Asst. Solicitor General contended that there is a roster system to be followed and the respondents did every act in a scientific manner. He also contended that if the contentions of the applicant are accepted, it will affect the distribution list finalized in respect of all the All India Services officers borne on the cadre of the undivided State of Andhra Pradesh and since the distribution has already been finalized in respect of so many officers, it cannot be disturbed at this stage. In support of his contentions, learned Addl. Solicitor General relied upon a decision of Page 67 of 86 OA No.422/2016 the Hon'ble Supreme Court in Union of India vs. Rajiv Yadav reported in 1994 (6) SCC 38, in which the Apex Court held that a candidate selected at best 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 and a Member of an All India Services bears liability to serve in any part of the country. However, in the present case, the contention of the applicant is that the principles of allocation do not ensure equitable treatment and therefore, challenged under Articles 14 and 16 of the Constitution of India and Section 80 of A.P. Reorganization Act, 2014 and hence, the said judgment relied upon by the 1st respondent is not applicable to the facts of the present case. Learned counsel for the 1st respondent apprehended that if the relief of the applicants is considered, it may lead to administrative chaos which would have the effect of unsettling the settled things. The Apex Court in the case of S. Ramanathan v. Union of India reported in 2001 (2) SCC 118 held that "It would, therefore, be not appropriate for this Court to deny the relief to the appellants on the ground of apprehended administrative chaos, if the appellants are otherwise entitled to the same." The Hon'ble Supreme Court in para 5 of its judgment in the above referred case has observed as under: "Dr. Rajeev Dhawan, the learned senior counsel, appearing for the respondents-direct recruits, learned Additional Solicitor General Mr. Mukul Rohtagi, appearing for the Union of India and Mr. A.Mariarputham, Mrs. Aruna Mathur and Mr. Anurag Mathur, appearing for the State of Tamil Nadu, on the other hand contended that there has been no definite prayer before the Tribunal seeking a mandamus for having a triennial review in accordance with the relevant provisions of the Cadre Rules and that being the position, the appellants will not be permitted to raise the matter after so many years, which would have the effect of unsettling the settled questions. It was also contended that the appellants having failed in their attempt to get the select list altered, have now come forward through a subterfuge and the discretionary jurisdiction of the Court should not be invoked for that purpose. Mr. Rohtagi, the learned Additional Solicitor General, though candidly stated before us that the appropriate authority should have done the triennial review for fixation of the cadre strength within the time stipulated in the cadre rules, but vehemently objected for any such direction being issued for re-consideration of the case of the appellants, more so when the appellants have not approached the Tribunal diligently. According to the learned Additional Solicitor General the tribunal has rightly considered the question of prejudice and has denied the relief sought for. The learned Additional Solicitor General also urged that the situation which should have been made available in 1987 on the basis of the cadre strength, cannot be brought back by a direction for re- consideration and in that view of the matter, neither the equity demands such a direction nor it would be appropriate for this Court to unsettle the settled service position. But to our query, as to how the orders of different tribunals on identical situations could be carried out without any demur, the learned Additional Solicitor General was not in a position to give any reply. It also transpires from the available records that the Union of India, no-where has even indicated as to how it would be unworkable if a direction is issued by Page 68 of 86 OA No.422/2016 this Court for re-consideration of the case of promotion to the IPS Cadre on the basis of the additional vacancies which have been found to be available. It would, therefore be not appropriate for this Court to deny the relief to the appellants on the ground of apprehended administrative chaos, if the appellants are otherwise entitled to the same. It is no doubt true that while exercising the discretionary jurisdiction, Courts examine the question of administrative chaos or unsettling the settled position, but in the absence of any materials on record, the Court should not be justified in accepting the apprehension of any administrative chaos or unsettling the settled position, on the mere oral submission of the learned Additional Solicitor General, without any materials in support of the same. On examining the records of the case, we do not find an iota of material, indicating the so-called administrative chaos, likely to occur in the event any direction is issued for re- consideration of the case of promotion on the basis of the alteration of the cadre strength and, therefore, we have no hesitation in rejecting the said submission of the learned Additional Solicitor General."
52. We have also carefully considered the principle adopted in Prakash Chandra Sinha's case [(2003) 4 JCR 165] by the Hon'ble High Court of Jharkhand that the allocation should not be interfered with on individual grievances relating to non-acceptance of options exercised, unless clear illegality or unreasonableness is established and the said decision of the Hon'ble High Court of Jharkhand has also been confirmed by the Hon'ble Supreme Court in the matter of Indrage Paswan Vs. Union of India, reported in 2007 (7) SCC 250, which was relied upon by the counsel for the 1st respondent. However, the facts and circumstances in the above two decisions are entirely different from the facts and circumstances of the present case. In the above referred two decisions, the petitioners challenged on the ground that they worked most of their service in Jharkhand and hence, they sought for allocation in Jharkhand state. In the above decisions, the Hon'ble Court has not interfered with the allocation process since there is no illegality found in allocation. The Hon'ble Court further found that no case of mala fides or irrationality has been made out in the matter of allocation of the appellant to the re- organized State of Bihar. The said case is pitched only on the ground of non-acceptance of the option of the appellant and an attack on the grounds for its rejection. However, it is clear from the two judgments that when there is any illegality or unreasonableness or irrationality, the Court can interfere and if there is any discrimination in evolving the guidelines, the Court can interfere in such matters. The case of the applicant herein is that the guidelines do not admit to a rationale principle of uniform application, and application of guidelines is rendered discriminatory on account of arbitrary classification of the officers which bears no nexus for the objective sought to be achieved for equitable allocation. Thus, the act of the respondents indicates sufficient discrimination. The guidelines are irrational to the point of being unreasonable in the Wednesbury sense and thereby, inviting interference by this Tribunal. Hence, in the peculiar facts and circumstances of the present case, the above two judgments are no way beneficial to the respondents.
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53. The entire exercise of allotment of the officers to the successor States has been completed by now as admitted by the learned counsel for the 1st respondent and further this applicant and few other officers only approached this Tribunal and cases are pending all through. The only apprehension expressed by the learned Asst. Solicitor General that if the contentions of the applicant are accepted, it will effect distribution list finalized in respect of all the All India Services officers borne on the cadre of undivided Andhra Pradesh and since the distribution has already been finalized in respect of so many officers, it cannot be disturbed at this stage."
In view of the foregoing, the two judgments viz., Rajiv Yadav and that of Mallikarjun Rao cited by the respondents, would not come to the rescue of the respondents.
XIII. The Ld. Counsel for the applicant drew our attention to the fact that the Tribunal has held the PS Committee guidelines to be arbitrary and illegal, by including Dr. P.K. Mohanty, the then Chief Secretary of the composite State of Andhra Pradesh as a member of the Committee and that the said ground is passable enough to grant the relief sought. It is true that this Tribunal has observed in OA/021/01241/2014, dated 29.03.2016, that the inclusion of Sri P.K Mohanty in the PS Committee has vitiated its recommendations by observing as under:
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.
Briefly, the reasons for arriving at the above conclusion is that the daughter and the son in law of Sri. P.K. Mohanty who belong to the IAS cadre opted for State of Telangana and were also in the list of AIS officers who had to be allotted to among to the 2 states. They were allotted to Telangana and the question before the Tribunal was as to how far it was correct to have a member who had conflict of interests. The law is clear that no man can be a Page 70 of 86 OA No.422/2016 judge in his own case as held by the Hon'ble Supreme Court in Manik Lal Vs. Dr. Prem Chand Singhvi, AIR 1957 SC 425. In the instant case, we find that Sri P.K. Mohanty had been provided the scope to decide the allocation of his close family members. It could be possible that his family members had got the Telangana cadre as per the guidelines, but the moot point for consideration by Sri P.K. Mohanty and the respondents was that as to how the other AIS officers would view his inclusion. As stated supra, Sri P.K Mohanty might not have influenced the findings for allotting a particular cadre to his close family members, yet law does not permit inclusion of members who have conflict of interest in a committee, for reasons of personal bias, which comes into play when interests of near and dear are involved. The famous phrase that '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 allegedly 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.
The Tribunal in the cited OA 1241/2014 has extensively dealt with the issue as under, by relying on the judgments of the superior judicial fora and came to the conclusion cited supra. It would be profitable to extract the relevant paragraphs to make our conclusion wholesome.Page 71 of 86 OA No.422/2016
"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 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 Page 72 of 86 OA No.422/2016 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 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-a-vis other officers certainly caused bias in their favour.
Learned Senior Counsel appearing for the applicant relied upon the decisions ofthe 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 asunder:
"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 afresh selection committee we do not see any infirmity in such directions. This Page 73 of 86 OA No.422/2016 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 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 Page 74 of 86 OA No.422/2016 name was considered for selection but he did 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 :(SCCp.270, para 15) 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 AIR1984 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 also to quasi- judicial and administrative proceedings. The position in law has been succinctly stated in Halsburys 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 Page 75 of 86 OA No.422/2016
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 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 authorised 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 Page 76 of 86 OA No.422/2016 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 References:(1852) 3 HL Cas 759, [1852] EngR 789, (1852) 3 HLC 759,(1852) 10 ER 301Coram: Lord Brougham, Lord Campbell 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 fo 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 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 beheld 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 Page 77 of 86 OA No.422/2016 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 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.
xxx
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 malafides 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 Page 78 of 86 OA No.422/2016 question whether the decision taken by the board can be considered as having been taken fairly and justly."
Hence in view of the above when the very formation of the committee was found to be vitiated then its recommendations cannot be held to legally defensible. Thus an illegality has crept in the process of distribution of AIS officers, by forming an advisory committee which cannot withstand legal scrutiny. Therefore, the rider to the theorem of the recommendation of the advisory committee having been found to be vitiated, is that the case of the applicant requires reconsideration as required in the legal domain.
XIV. The contention of the respondents is that the claim of the applicant is illegal and that an illegal claim cannot be legalized by acceding to it. We do not agree. The recommendations of the advisory committee have been held to be vitiated for the reasons stated in the paras supra. Hence if any illegality was committed it could necessarily be construed to be on part of the respondents for not having been careful in foreseeing the legal repercussions of their decision in constituting the advisory committee and harmonizing the AIS Act 1951/ rules thereof with the guidelines recommended under Act-2014. We are also unable to comprehend as to how the basic aspects of law were overlooked while constituting the committee by the competent authority. Nevertheless, the end of the road for distribution of officers has been reached and the only option open to us is to undo the injury caused to the applicant rather than declaring the guidelines en-masse unlawful, because it will cause an administrative holocaust and we are not inclined to invite one in public interest, because it cannot be Page 79 of 86 OA No.422/2016 denied that the AIS officers are involved in activities crucial to the governance of the States and the Union.
XV. The Ld. Counsel for the respondents has made a valiant effort to persuade us that the allocation was fair, transparent and objective. He has emphasized that the allocation were as per the approved guidelines enunciated under the Act-2014. The applicant has only made submissions to suit his needs in a distorted manner not maintainable under law. He has to serve the State to which he has been allotted and cannot claim to work in a State he desires. True, applicant has to serve the State to which he is allotted, provided the allotment is not arbitrary. We have discussed in the preceding paras that allotting the applicant to RSAP was neither fair nor equitable as was intended under Act -2014. Taking into consideration, the various observations made above by taking support of the judgments of the superior judicial fora and our findings in identical cases dealt in different OAs, we are constrained to state we are not in agreement with the Ld. Counsel submission that the allocation was fair and transparent. A clinching view of the respondents' approach to the case is evident from the devastating sentences deployed by the respondents in the reply statement which speak more than what we say about their fairness and transparency. They are reproduced here under to affirm our disagreement with the Ld. Counsel pleadings claiming that all was well with the decision to allot RSAP to the applicant.
a. 'It is not obligatory for the Central Govt. to frame rules/ regulations or notify the principles of cadre allocation.' Page 80 of 86 OA No.422/2016 b. 'It was made clear that the principles approved on 22.8.2014 by the competent authority shall remain unchanged'.
The assertion at (a) is extremely offensive to the rule of law and needs to be denounced with all the words which English language can command. The second one at (b) would reveal that the respondents had a closed mind and therefore, TOR, provisions of the Act -2014 etc. were obviously shed in a manner indefensible under law. When the Ld. Counsel for the respondents was questioned as to how the respondents can make assertions which were anathema to law, there was stoic silence. Hence the repeated submissions of the respondents and of the ld. respondent counsel claiming to be objective, transparent and fair appear to be hollow, since their words did not translate into action as they ought to be, in regard to the dispute on hand.
XVI. The Ld. Counsel for the applicant has also submitted that the State of Telangana is having a deficit of IPS officers for policing the State and hence there would not be any administrative difficulty in accommodating the applicant in the available vacancies. We too are aware of the fact that the State of Telangana has carved out many new districts and that the Chief Secretary of the State did indeed approach the nodal Ministry for allocation of more vacancies to the State. This issue in particular was dealt by us while adjudicating the dispute of cadre allocation in OA 174/2020, where we had occasion to observe as under:
Whereas in respect of Telangana there were 62 officers working against 78 sanctioned strength with a deficit shortage of 16 officers and a deficit of 20.5%. The prudent decision would then have been to allocate the one vacancy to Telangana and not to Sikkim. In fact, the Chief Secretary of Telangana vide his letter dated16.6.2016 to the 1st respondent has sought Page 81 of 86 OA No.422/2016 allocation of 10 additional vacancies to Telangana State and to declare it as a deficit cadre, with a further request to allow willing officers on Inter State cadre deputation. Ironically on one hand the State of Sikkim did not ask for any vacancy and yet the respondents went ahead with the allocation of a vacancy and that to contravening CAP policy as well as the DOPT direction dated 20.5.2016. On the other hand the State of Telangana was desperately asking for 10 additional vacancies before the cadre allocation was done on28.12.2016 and yet they were not allotted.
This reconfirms the fact that there was no effective consultation with the States and lack of policy adherence in the allotment of vacancies as required under CAP -2008. We are of the view that when the continuity of service was the basis to allocate a vacancy to Sikkim by the respondents, though not permitted under CAP -2008, what prevented the respondents to take a similar view in respect of the State of Telangana when there was frantic demand for allocation of vacancies and to even permit officers on inter cadre deputation. Different decisions on the same issue in contravention of rules is objectionable and not maintainable as per the rule of law.
Xxx In addition, the Telangana State has created a number of new districts which in turn call for more number of vacancies to be allotted and 1/3rd of the posts in the Superintendent of Police to which grade the applicant presently belongs to, are vacant as per the IPS civil list of 2021 which we have perused. Thus the weight deficit in the IPS cadre is on a steep rise for the State of Telangana which required appropriate appreciation by the competent authority but unfortunately it was not to be. The respondents only one line answer was that the vacancies on 1.1.2016 were taken as per DOPT were taken but they did not explain the deficiency in the decision making process as was brought out at length in the paras supra in conducting the cadre review in time as required under rules/law. However, in view of a slew of mistakes committed by the respondents as discussed supra, the applicant was wronged in the allotment of the Cadre of Telangana.
From the above, it is clear that there are vacancies available to adjust the applicant on re-allotment to the State of Telangana and more so in the light of the letter of the Chief Secretary of the Telangana State seeking more vacancies, as was discussed in the OA cited.
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 Page 82 of 86 OA No.422/2016 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 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 Page 83 of 86 OA No.422/2016 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.
XVIII. 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 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.
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XIX. The other contentions of both the parties were gone through and since they had no say on the outcome, comments have not been offered.
XX. 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 [1978 AIR 597], as under:
"Lawful illegality could become the rule, if lawless legislation be not removed"
XXI. The aforesaid circumstances make it explicit 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, 230/2020, 174/2020 & 1037/2019 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. The verdict of the coordinate benches is binding as opined by the Hon'ble Apex Court in S.I. Roop Lal cited supra. Therefore in pursuance of the cited judgment and to maintain judicial 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 Page 85 of 86 OA No.422/2016 applicant, there are a number of vacancies available in the State of Telangana in the IPS cadre, which was not contradicted by the respondents. Hence, taking into consideration that the applicant is holding an answerable 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 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. XXII. 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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