Central Administrative Tribunal - Delhi
Dr.Raghav Langer vs Union Of India Through Secretary on 4 July, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA-3474/2011 New Delhi this the 4th day of July 2012 Honble Mr. Shailendra Pandey, Member (A) Honble Mr.A.K.Bhardwaj, Member (J) Dr.Raghav Langer, S/o Dr. Jai Gopal Ganger, R/o 92/1, Trikuta Nagar, Jammu-180012, (Jammu & Kashmir) Applicant At present posted at Joint Magistrate, Tehsil Ranikhet, District Almora, Uttarakhand-263645 (By Advocate Shri S.P.Sinha ) VERSUS Union of India through Secretary, Ministry of Personnel, Public Grievances & Pension, Department of Personnel and Training, North Block, New Delhi-110001 .. Respondent (By Advocate Shri R.N.Singh ) O R D E R Mr. A.K.Bhardwaj, Member (J):
Civil services constitute the backbone of Indian Government machinery and various departments which are run by the State administration. The main goal of civil service is to serve ones countrymen. It involves working in close association with the government to develop and implement new policies that deal directly with the benefit of public. The opportunities offered in this career are extremely diverse such as: policing, foreign policy, collection of taxes, Administration and maintenance of law and order.
2. The eligibility criteria for the civil services examination includes Graduation in any discipline. There is an age limit of 21-30 years as on Ist August of the year in which the candidate appears for the exam. The maximum number of attempts is four. The notification for the exams is circulated by UPSC in the month of December, every year. Following this, the preliminary exams are conducted on the second or third Sunday in May, every year. These examinations are conducted in three phases namely: Preliminary examinations, which are held on the 2nd and 3rd Sundays in May, every year. It comprises of general studies and an optional subject such as Geography, Commerce, Mathematics, Sociology etc. The main Examination is held in October-November, annually. The subjects or papers for the main exam include: general studies, optional subject, essay writing, qualifying English, Hindi and regional language etc. The interview and personality test not only tests the candidates general knowledge but also their personality, moral values, confidence, decision making ability and last but not the least, their vision.
3. The Indian Administrative Service (IAS) is the administrative civil service of the Government of India. Indian Administrative Service officers hold key position in the Union Government, State Government and Public Sector Undertakings. The Administrative Service is one of three All India Services. The constituent Assembly of India intended that the bureaucracy should be able to speak freely, without fear of prosecution or financial insecurity as an essential element in unifying the nation. The IAS officers are recruited by the Union Government on the recommendations of the Union Public Service Commission (UPSC) and posted under various State Governments. The officers carry high respect and stature in the society coupled with the significant task of administering public offices, making it one of the most desirable job in India. While the respective State Governments have control over them, they cannot censure or take disciplinary action against IAS and other All India Service Officers without consulting the Union Government (Central) and the UPSC. As is mentioned hereinabove, the examination for induction in IAS is conducted by the UPSC. It has three stages (preliminary, main and interview) and is considered to be extremely challenging. Recently the preliminary exam pattern was changed. There used to be 23 optional subjects along with a general study paper. Now there will be no optional subject in the preliminary examination. Instead there will be a second paper which will be common for all the candidates (CSAT). It covers attitude, general mathematics, comprehensive English and social study etc. Almost all the candidates taking the said examination rank IAS as their top choice. Repeated attempts are allowed up to four times for general merit candidates, seven times for OBC candidates to take the examination. There is no bar on the number of attempts for SC/ST candidates. The upper age limit to attempt the examination is 35 for SC/ST and 30 years for general merit candidate. About 850 candidates are finally selected each year out of nearly five lakhs and fifty thousand (2010 data), but only a rank in the top 80 guarantee an IAS selection, i.e 0.025 percent which makes it one of the most competitive selection process in the world.
4. The concept of All India Service finds place in Article 312 of the Constitution of India which reads as under:
All India Services: Notwithstanding anything in chapter VI of part VI or Part XI, if the council of states has declared by not less than two-thirds of the members present and voting that it is necessary or expedient in the national interest so to do so, Parliament may by law provide for the creation of one or more All India Services ( including an All India Judicial Service) common to the Union and the States, and subject to the other provisions of this chapter, regulate the recruitment, and the conditions of service of persons appointed, to any such service. As has been explained hereinabove, the direct recruitment of candidates into IAS is by the Civil Service Examination conducted by UPSC. However, recruitment into IAS is also done by appointment by selection through power conferred by Section 3 of All India Services Act of 1951 (61 of 1951) and in pursuance of sub-rule (2) of Rule 8 of Indian Administrative Service (Recruitment) Rules of 1954.
5. After being selected for IAS, candidates are allocated to cadre. There is one cadre in each Indian State, beside three joint cadres:
Assam-Meghalaya, Manipur-Tripura and Arunachal Pradesh-Goa-Mizoram-Union Territory (AGMUT). The insider-outsider ratio (ratio of officers who are posted in their home states) is maintained as 1:2 as insiders. The rest are posted according to the roster in state other than their home state. Till 2008, there was no choice for any state cadre and the candidate, if not placed in the insider vacancy of their home state, were allotted to different states in alphabetic order of the roster, beginning with the letter A, H, M, T for that particular year. For example, if in a particular year the roster begins from A, it would mean that the first candidate in the roster will go to the Andhra Pradesh state cadre of IAS, the next one to Bihar, and subsequently to Chattisgarh, Gujarat and so on in alphabetical order. The next year the roster starts from H, for either Haryana or Himachal Pradesh (if it has started from Haryana in the previous occasion when it all started from H, then this time it would start from Himachal Pradesh). This highly intricate system has on one hand ensured that officers from different states are placed all over India, on the other hand it has also resulted in wide disparity in the kind of professional exposure for officers, when we compare officers in small and big and also developed and backward state, since the system ensures that the officers are permanently placed to one State cadre. The only way the allotted state cadre can be changed is by marriage to an officer of another state cadre of IAS/IPS/IFS. One can even go to his home state cadre on deputation for a limited period, after which he has to invariably return to the cadre allotted to him or her. The centralizing effect of these measures was considered extremely important by the systems framers, but has received increasing criticism over the years. In his keynote addressed at the 50th anniversary of the Service in Mussoorie, former Cabinet Secretary Nirmal Mukherji expressed that separate central, state and local bureaucracy should eventually replace the IAS as an aid to efficiency. There are also concerns that without such reform, the IAS will be unable to move from a command and control strategy to a more interactive, interdependent system.
6. A civil servant is responsible for the law and order and general administration in the area under his work. Typically the functions of an IAS officer are as follows:
To handle the daily affairs of the government, including framing and implementation of policy in consultation with the minister-in-charge of the concerned ministry.
Implementation of policy requires supervision. Implementation requires traveling to places where the policies are being implemented. Implementation also includes expenditure of public funds which again requires personal supervision as the officers are answerable to the Parliament and State Legislative for any irregularities that may occur. In the process of policy formulation and decision making, officers at various levels like Joint Secretary, Deputy Secretary make their contributions and the final shape to the policy is given or a final decision is taken with the concurrence of the minister concerned or the cabinet depending upon the gravity of the issue.
7. That from overall profile of Indian Administrative Service (IAS) as explained above, it is least expected from its members to object to their posting at any place in the country subject to requirement of service and countrymen. However, still may be in ignorance of albeit clause of the service and expectations from its member, in the event of their transfer or allocation to any particular cadre which they consider to their inconvenience, the member of service repel. From 1978 examination and onwards, the allocation of direct recruit to All India Service including Indian Forest Service had been made in accordance with the Limited Zonal preferences System. In the said system, all the cadre/joint cadres were divided into zone and the candidates were given the opportunity to indicate their preferences zone-wise for two cadres in each zone. The allocation was being made keeping in view the rank and preferences of the candidates subject to allocation of vacancies in each cadre between insider and outsider. As certain deficiencies were experienced in limited zonal preference system of cadre allocation for the reason that there was very limited movement of candidate from one part of the country to another across several states and even this limited inter-regional movement of candidates could take place only in respect of a few lower ranking candidates, it was decided with the approval of the Prime Minister that from 1985 batch onwards (1984 examination candidates), roster system of cadre allocation prevalent from 1966 to 1977 examination should be resorted to with certain modifications. The broad principles of allocation on the basis of roster system were as follows:
(1) The vacancies in every cadre will be earmarked for outsiders and insiders in the ratio of 2:1. In order to avoid problems relating to functions and to ensure that this ratio is maintained over a period of time, if not during allocation, the break-up of vacancies in a cadre between outsiders and insiders will be calculated following the cycle of outsider, insider, outsider.
(2) The vacancies for Scheduled Castes and Scheduled Tribes will be reserved in the various cadres according to the prescribed percentage. For purpose of this reservation, Scheduled Castes and Scheduled Tribes will be grouped together and the percentages will be added. Distribution of reserved vacancies in each cadre between outsiders and insiders will be done in the ratio of 2:1. This ratio will be operationalised by following a cycle outsider, insider, insider as is done in the case of general candidates.
(3) Allocation of insiders both men and women, will be strictly according to their ranks, subject to their willingness to be allocated to their home States.
Allocation of outsiders, whether they are general candidates or reserved candidates, whether they are men or women, will be according to the roster system after placing insiders at their proper places on the chart as explained below:-
All the State cadres/Joint Cadres should be arranged in alphabetical order and divided into four groups which, on the basis of the average over a period of time, are taking roughly equal number of candidates each. On the basis of average intake during the last 4 years, the groups could be as follows:
Group I : Andhra Pradesh, Assam, Meghalaya, Bihar and Gujrat.
Group II: Haryana, Himachal Pradesh, Jammu & Kashmir, Karnataka, Kerala and Madhya Pradesh.
Group III : Maharashtra, Manipur-Tripura, Nagaland, Orissa, Punjab, Rajasthan and Sikkim.
Group IV: Tamil Nadu, Union Territory, Uttar Pradesh and West Bengal.
(ii) Since the number of cadres/Joint Cadres is 21, the cycles will be 1-21, 22-42, 43-63 and so on.
(iii) The insider quota should then be distributed among the States and assigned to different cycles of allotment. For example, if a State gets 4 insiders candidates, they should go to the share of the State in their respective cycles and if there are 2, insiders candidates from the same cycle, they should be treated as going to the State in two successive cycles and so on.
The outsider candidates should be arranged in order of merit and allotted to the State cadre in cycles as described in (v) below.
In the first cycle, State cadre/Joint Cadres which have not received insider candidates should be given one candidate each in order of merit of outsider candidates. The process should be repeated in successive cycles, each successive cycle beginning with the next successive group of States, e.g., the second cycle should begin from Group II States, the third cycle with Group III States and the fourth cycle with Group IV States and the fifth cycle again with Group I States. Occasionally it may happen that a candidates turn may come in such a way that he may get allocated to his own home State. When that happens, the candidate next below him should be exchanged with him.
For the succeeding year, the State cadres should be arranged again in alphabetical order but with Group I of the previous year at the bottom, i.e., the arrangement will begin with Group II on top. In the third year, Group III will come on top and so on.
In the case of candidates belonging to the reserved category, such of those candidates, whose position in the merit list is such that they could have been appointed to the service even in the absence of any reservation, will be treated on par with general candidates for purposes of allotment though they will be counted against reserved vacancies. In respect of other candidates belonging to the reserved category a procedure similar to the one adopted for general candidates would be adopted. In other words, a separate chart should be prepared with similar grouping of States and similar operational details should be followed. If there is a shortfall in general insiders quota it could, however, be made up by insider reserved candidates.
8. In implementation of judgment of Honble Supreme Court in the case of R.K.Sabharwal Vs. State of Punjab, Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel & Training) issued OM dated 2.07.1997. By said OM, the existing 200-point, 10-point and 120-point vacancy based rosters were replaced by post based roster. The existing 100-point roster in respect of local recruitment to Group C & D posts were also directed to be replaced on the basis of principle elaborated in the explanatory note given in model roster annexed to said OM as Annexures II, III and IV. The principles for preparing the roster elaborated in said explanatory note are briefly mentioned below:-
(a) Since reservation for OBCs does not apply in promotions, there shall be separate rosters for direct recruitment and for promotions;
(b) The number of points in the roster shall be equal to the number of posts in the cadre. In case there is any increase or decrease in the cadre strength in future, the rosters shall be expanded/contracted correspondingly;
(c) Cadre, for the purpose of a roster, shall mean a particular grade and shall comprise the number of posts to be filled by a particular mode of recruitment in terms of the applicable recruitment rules. Thus, in a cadre of, say, 200 posts, where the recruitment rules prescribe a ratio of 50:50 for direct recruitment and promotion, two rosters- one for direct recruitment and one for promotion ( when reservation in promotion applies)- each comprising 100 points shall be drawn up on the lines of the respective model rosters;
(d) Since reservation does not apply to transfer on deputation/transfer, where the recruitment rules prescribe a percentage of posts to be filled by this method, such posts shall be excluded while preparing the rosters;
(e) In small cadres of upto 13 posts, the method prescribed for preparation of rosters does not permit reservation to be made for all the three categories. In such cases, the administrative Ministries/Departments may consider grouping of posts in different cadres as prescribed in this Departments O.M.No.42/21/49-NGS dated 28.1.1952 and subsequent orders reproduced at pages 70 to 74 of the Brochure on Reservation for Scheduled Castes and Scheduled Tribes (English Edition) and prepare common rosters for such groups. In the event it is not possible to resort to such grouping, the enclosed rosters (Appendices to Annexures-II, III & IV) for cadre strength upto 13 posts may be followed. The principles of operating these rosters are explained in the explanatory notes. In terms of para 5 of the OM, at the stage of initial operation of roster, it is necessary to adjust the existing appointment in the roster, which helps in identifying the excess/shortages, if any, in the respective categories in the cadre. Such adjustment is required to be done starting from the earliest appointment and making an appropriate remark, utilized by SC/ST/OBC/Gen, as the case may be, against each point in the roster as explained in the explanatory note appended to the model roster. In making these adjustments, appointment of candidates belonging to SC/ST/OBC made on merit (and not due to reservation) are not to be counted towards reservation so far as direct recruitment is concerned. In other words, those are to be treated as general category appointment. The excess number of incumbents, if any, from either category was to be adjusted through future appointments and the existing appointments were not to be disturbed.
9. Ministry of Personnel and Public Grievances (Department of Personnel and Training) notified rules for competitive examination- Civil Services Examination to be held by UPSC in 2008 for the purpose of filling vacancies in certain categories, including the Indian Administrative Service with the concurrence of the Ministry concerned and the Auditor General of India in respect of Indian Audit and Accounts Service on 29.12.2007. In terms of Rule 9 of the Rule so notified, due consideration was to be given at the time of making allocation on the result of the examination to the preference expressed by a candidate for various services at the time of his application. The appointment to various services was to be governed by rules/regulations in force as applicable to the respective service at the time of appointment. In terms of Rule 19 (ii), the cadre allotment to candidates appointed to IAS/IPS was to be governed by the policy of cadre allotment in force at the time of allotment of cadre. While doing so, due consideration was to be given at the time of making allocation on the result of examination to the preference expressed by a candidate for various cadres at the time of his application. Said Rule 19 reads as under:-
19. (i) Due consideration will be given at the time of making allocation on the results of the examination to the preferences expressed by a candidate for various services at the time of his application. The appointment to various services will also be governed by the Rules/Regulations in force as applicable to the respective Services at the time of appointment.
(ii) The cadre allotment to candidates appointment to IAS/IPS will be governed by the policy of cadre allotment in force at the time of allotment of cadre. Due consideration will be given at the time of making allocation on the results of the examination to the preferences expressed by a candidate for various cadres at the time of his application. Result of the Civil Services Examination 2008 notified to be held in terms of Rule dated 29.12.2007 was declared on 4.05.2009, wherein the applicant obtained 21st rank and in terms of Rule 19 (i) of Civil Services Examination-2008, he was allocated to IAS. Foundation course at LBSNAA, Mussoorie for IAS 2009 started from 31.08.2009. The complete cadre allocation of IAS 2009 (CSE 2008) was published on 18.01.2010. Applicant was allocated to Uttrakhand cadre. Aggrieved by his such allocation, he submitted a representation to respondent on 17.05.2010, raising the plea that not only the cadre allocation policy for All India Service -IAS/IPS/IFS issued vide OM dated 10.04.2008 was bad in law, but same was given retrospective effect which was not permissible. The said representation dated 17.05.2010 made by applicant was rejected in terms of order dated 13-15/9/2010 which reads as under:
Please refer to your letter No. 12/5/ASP/2009 dated 21st May 2010 forwarding therewith a representation submitted by Dr. Raghav Langer, IAS under Probation 2009 Batch on the above mentioned subject.
2. The matter has already been examined in the Department and it has not been found feasible to re-allocate the Cadre of Dr.Raghav Langer, IA (P) 2009 batch from the existing IAS cadre of Uttrakhand to IAS cadre of J&K. The new policy has been implemented from CSE-2008 only. Not satisfied with said order, applicant has filed present Original Application making the following prayers:-
(A) Quash OM dated 10.4.2008 (Annexure-A) as well as letter dated 13-15/09/2010 (Annexure-B) of the Respondent, and (B) Consequently direct the Respondent to allocate the applicant his home cadre Jammu & Kashmir instead of Uttarakhand cadre allocated to him, and /or (C) Pass such other or further order/orders as this Honble Tribunal may deem fit and proper in the facts and circumstances of the case and in the interest of justice. To substantiate the relief prayed by him as above, the applicant has saliently pleaded/contended as under:-
The Cadre Allocation Policy issued vide OM dated 10.04.2008 suffers from various contradictions and infirmities and is issued without application of mind, which required the respondent to make two amendments in the said policy on 21.04.2011 and 15.06.2011.
(ii) The Cadre Allocation policy dated 10.04.2008 was brought into effect only to accommodate candidates from North Eastern states into their home cadre.
(iii) Had the Cadre Allocation Policy dated 10.04.2008 been not applied to the candidates selected and allocated to IAS on the basis of 2008 examination and old policy being followed, the insider vacancies available in J&K could have been assigned to general category candidates instead of OBC candidates. To project said ground, in para 4.16 of the OA, the applicant canvassed following factual and hypothetical impression.
List of IAS candidates selected in CSE-2008 belonging to J&K State.
S.No. Name Category Rank
1. Raghav Langer General 21
2. Shahid Iqbal ST 51
3. Sumeet Jarangal SC 214 *No candidate belonging to OBC category got selected from the State.
Category wise vacancy distribution calculated for J&K cadre in CSE-2008.
Insider Outsider Total vacancies 1 OBC 1 General 2 Actual vacancy filling that took place in J&K in CSE-2008 cadre allocation as per the new formula for shifting of unfilled insider OBC vacancy. Vacancy filling that would have taken place in J&K cadre if the old formula for shifting of unfilled insider OBC vacancy had applied as per old roster policy.
Insider Outsider Total 1ST 1 General 2 As a result in CSE-2008, Mr. Shahid Iqbal, ST candidate got allotted to J&K Cadre as insider. The applicant is primarily challenging the new vacancy shift rule in this application. Insider Outsider Total 1 General 1 OBC 2
Thus, Dr. Raghav Langer, General candidate would have been allotted to J&K cadre as insider.
(iv). No insider vacancy of IAS in J&K could have been allocated to a candidate belonging to ST category, selected on the basis of 2008 Civil Services Examination, as out of two vacancies available in the said State, one could be allocated to OBC category candidate and other one to general category candidate.
(v). In terms of 0-1-0 (outsider and insider roster), the vacancy reserved for OBC category in J&K State was an outsider vacancy while the general category vacancy was insider vacancy. In support of said contention, the applicant made following averment in para 6 (k) of his Original Application:-
Now, last step is to calculate that out of 1 OBC & 1 Gen vacancy, which one is an Insider & which one is an Outsider vacancy.
For this, the category insider-outsider rosters for the cadre that show category points i.e. SC/ST insider-outsider vacancy roster & OBC insider-outsider vacancy roster is being used.
This roster operates as follows:
Category based insider/outsider rosters that follows:
OIOO10010 0 OBC 1 SC/ST 0 OBC 0 SC/ST 1 OBC 0 SC/ST 0 OBC 1 SC/ST 0 OBC 0 SC/ST 1 OBC 0 SC/ST 0 OBC 1 SC/ST In this it can be seen that OBC roster also follows the pattern of 0-1-0-0-1-0 & SC/ST roster also follows the pattern of 0-1-0-0-1-0 Assuming last year in a particular cadre, there was I Insider OBC vacancy (which means that this OBC vacancy had fallen on I point in the OBC insider-outsider roster).
Then, assuming this year also 1 OBC vacancy has been marked for this cadre. Now, this would be Outsider OBC vacancy this year, as the OBC insider-outsider roster would follow the sequence 0-1-0-0-1-0.
Since this I roster point was occupied last year. Therefore, this year this OBC vacancy would be a Outsider OBC vacancy.
(vi) The vacancy reserved for OBC category was outsider and the unreserved vacancy was insider vacancy. The averment made by applicant in para L of the OA in support of said contention reads as under:
It be noted that there is no separate insider-outsider roster for General category. It has been mentioned in Para 4 of new policy that the General insider/outsider vacancies for the cadre shall be determined by subtracting the total reserved insider & the total reserved outsider vacancies from the total insider vacancies & the total outsider vacancies respectively. The total insider & total outsider vacancies are calculated from common insider-outsider roster for the cadre. The total reserved insider & total reserved outsider vacancies are calculated from OBC/SC/ST insider-outsider rosters of the cadre.
(vii) The vacancy shifting policy introduced in terms of para 7 of OM dated 10.04.2008 led to anomalous situation in as much as the vacancies calculated for a cadre in a given year could be altered.
(viii) In view of 50 % vacancies reserved to be filled up in J&K State by promotion, the chances for a candidate to get selected from the State to get his home cadre are very low. OM dated 10.04.2008 is violative of principles of equitable distribution of different category of candidates in as much as the same has resulted into skewness in the roster. According to roster system, various categories in proportion to their reservation percentages are allocated points in the vacancy roster and the insider-outsider category wise vacancies for various cadres are calculated.
(ix) The vacancy shifting policy has resulted in skewness not only in the cadre where the vacancy is shifted to different category, but also in the cadre to which the insider vacancy in a particular cadre is shifted as outsider vacancy. The factual/hypothetical position explained by applicant in Para 9 (D) 4 to 17 of the petition reads as under:-
4. The same may be explained in the following manner.
What actually happened: As per the New cadre allocation policy, the unfilled insider OBC vacancy in J&K cadre got exchanged with a outsider ST vacancy in cadre X { to which Mr. Shahid Iqbal would have got normally allotted to} and thus outsider OBC vacancy in J&K got converted into insider ST vacancy & outsider ST vacancy in cadre X got converted into outsider OBC vacancy ( to maintain the overall number of vacancies at of each category at All-India level in CSE-2008). So, the vacancies got exchanged between cadres.
J&K cadre Insider OBC vacancy converted into Insider ST vacancy X cadre Outsider ST vacancy converted into Outsider OBC vacancy Thus it can be seen here that in this process, not only the category wise vacancy composition of J&K but also of cadre X has got changed. Thus, the vacancy rosters of 2 cadres have simultaneously got adversely affected.
5. Incidentally, cadre X was Uttarakhand in this particular case Vacancy position in Uttarakhand cadre calculated on the basis of rosters for CSE-2008 Total vacancies=4 Gen OBC SC ST Insider 1 1 Outsider 1 1 Since no candidate of any category got selected from Uttarakhand State in CSE-2008 who could be allotted as an insider therefore, these 2 insider vacancies in Uttarakhand got converted into respective category outsider vacancies (as provided in Para 8 (ii) & (iii) of New policy).
Thus, the effective vacancy position in Uttarakhand cadre for CSE-2008 was;
Gen OBC SC ST Insider Outsider 2 1 1
6. As per the procedure of cadre allocation mentioned in Para 8 of the New cadre policy, these were the sequential steps that occurred;
1.Mr. Shahid Iqbal, Rank 51, ST candidate as per Para 8 (i), could not be allocated to J&K as an insider because there was no insider ST vacancy in J&K cadre for him.
2. Now the next step followed as is mentioned in Para 8 (ii) of New policy to be read along with Para 7 (c).
What was to be seen was, as to which is the cadre to which he would be normally allotted to as per his merit, preference & category (since there wasnt any insider ST vacancy in J&K which he could claim, therefore he was to get allocated to some cadre against outside ST vacancy as per his sequence of preferences).
3. His 2nd choice of cadre was AGMUT, but since there was no outsider ST vacancy in AGMUT so, he could not be allotted to that cadre. The preference sheet of Mr. Shahid Iqbal has been received through RTI and shall be placed before this Learned Tribunal at the time of hearing.
4. Now his 3rd choice of cadre was Uttarakhand & incidentally an outsider ST vacancy was available there. So, the new software allotted him to Uttarakhand cadre as an outsider ST candidate. So, this was the cadre to which he would have been normally allotted to.
5. Now, the vacancy shift rule under Para 7 (c ), read with Para 8 (ii) came into operation. To give him the benefit of home cadre allocation, the insider OBC vacancy in J&K was converted into insider ST vacancy and to compensate the outsider ST vacancy in Uttarakhand cadre was converted into outsider OBC vacancy. (Because the sanctioned number of ST & OBC vacancies have to remain the same at All India level. Therefore, if 1 OBC vacancy is getting converted into ST vacancy, then 1 ST vacancy has to get converted into a OBC vacancy to compensate).
6. Thus in the 2nd step the software allotted him to J&K cadre as an insider ST candidate. This shifting/switching over of vacancies, as per the new rule of unfilled insider vacancy shift, thus took place between his home cadre J&K (in which he was to be adjusted as an insider) & the Uttarakhand cadre to which he would have been normally allotted to as per vacancy availability, his merit and preference.
7. In view of the above referred it is crystal clear that the category wise vacancy position of two cadres have been altered simultaneously. The expression normally allotted in para 7 of the new policy itself suggest that under normal circumstances such candidate would have been allotted to a different cadre.
8. Even though it is neither legally required nor is practically & mathematically possible to implement the reservation policy simultaneously both at the level of country and at the level of cadre but at the same time in allocation of cadres it is important and necessary to adequately follow the broad percentage of reservations of State level.
Once the category wise distribution of vacancies for each cadre has been calculated after necessary rounding off of fraction/approximation to the nearest point then becomes mandatory to follow its sanctity, i.e. if J&K has been allotted 1 General & 1 OBC vacancy then final filling should not be done by 1 General & 1 ST candidate.
9. Likewise, in case of West Bengal cadre in CSE-2008, the category wise vacancy distribution showed total 5 vacancies ( 3 Gen, 1 OBC, 1 SC) but in final cadre allocation due to the abovementioned rule, the uptake has been 4 Gen & 1 OBC. Thus out of total 5 vacancies, 4 have been filled by General candidates which is deviation from established reservation policy and is detrimental to the concept of equitable representation of various categories in a cadre on the basis of prescribed percentages.
10. In CSE-2008 due to this faulty rule, 4 out of 5 vacancies had been filled by General candidates. Therefore in order to compensate other categories out of total 6 vacancies in CSE-2009, only 1 General vacancy was earmarked for West Bengal cadre. This is again detrimental to the interests of General category candidates getting selected from the State in CSE-2009.
Vacancy position in CSE-2009 General OBC SC ST
in West Bengal
Total=6 2 3 0 1
11. The applicant respectfully submits that due to the faulty vacancy shifting rule; the problems get compounded which may be shown from the actual filling of vacancies in West Bengal cadre in CSE-2009.
Actual vacancy filling in General OBC SC ST CSE-2009 in West Bengal Total=6 2 3 0 1
It be noted that the actual vacancy filling is totally different from the vacancies calculated as per the reservation rosters.
12. This again leads to a compounding effect, whereby it will further lead to disturbance in vacancy rosters of the state. As a result in CSE-2010 again, the vacancy position that would come up for the state would be highly skewed (due to the effects of CSE-2008 & CSE-2009 allocation) and thus in course of time the category composition of the IAS cadre in the State would become totally skewed.
Incidentally the vacancy position for West Bengal state for CSE-2010 is;
Vacancy position in CSE-2010 General OBC SC ST in West Bengal Total=5 3 1 1 0 Another, important thing to note here is that in CSE-2009 there were 3 SC vacancies in West Bengal. However, in actual filling (on the basis of new vacancy shift rule), no SC vacancy was filled up in the state.
Therefore, it was mandatory that in CSE-2010 vacancy position, there should have been at least 3 SC vacancies. However, as can be seen; in CSE-2010 only 1 SC vacancy has been earmarked for the cadre. SO, the contentious issue here is that who is responsible for the missing 2 SC category vacancies. This has jeopardized the interests of SC insider candidates getting selected from the state as well as outsider SC candidates who wanted to get allotted to West Bengal cadre as a matter of preference.
So, it is clear that the DOPT has not duly compensated the SC category in West Bengal cadre. Whereas, it can be seen that in case of few other cadres the DOPT would have adequately compensated them. SO, now the vacancy position in a cadre has become a matter of whims & fancies of the department. Wherever, they want they might compensate a particular category and in some cases may not do so. Thus an objective vacancy determination system of old roster policy has become a tool of favouritism due to the application of this new faulty vacancy shifting rule in the new cadre policy.
13. Also, such skewed intake of vacancies in various cadres would have its impacts on the coming batches as well. E.g. in case of Karnataka cadre initial vacancy position was 3 Gen, 2 OBC, 1 SC & 1 ST (Total 7). However, the final filling has been by 5 Gen, 1 OBC & 1 SC candidate. Now, this would not only disturb the category wise but also the insider-outsider distribution of vacancies coming in CSE-2009 in case of Karnataka cadre. Since 5 out of 7 vacancies in CSE-2008 have been filled by General candidates; in CSE-2009 the number of General category vacancies in Karnataka would have to be reduced to adjust for the increased proportion of General category in the state. This would in turn decrease the prospects of General candidates getting selected from Karnataka in CSE-2009 to get their Home cadre.
The point of contention here is that all this is happening without any fault of the candidates selected in CSE-2009 from Karnataka state, but because some candidates of a different state in order to get their home cadre in CSE-2008 allocation were allowed to alter the category wise vacancy distribution in the outsider quota of Karnataka.
Similarly, due to cadre allocation of Mr. Shahid Iqbal the category wise insider-outsider vacancy position in CSE-2009 & beyond for both J&K & Uttarakhand would be different from what it should be as per the original rosters. This would be injustice to the candidates getting selected in CSE-2009 esp. from Uttarakhand which had nothing to do with the insider vacancy shift happening in J&K in J&K in CSE-2008.
14. The very fact why this vacancy exchange formula has been changed is to allow more candidates to get the benefit of their home cadre; as under the old rule many a times insider candidates were not able to claim such shifted insider vacancies as no vacancy of their category was available in the outsider quota of their respective states to facilitate exchange. But such wholesome disturbance in the rosters of two states happening simultaneously just to give the benefit of home cadre to an insider candidate { as per Para 7 clause (a), (b), (c) & (d) read with Para 8 (ii)} should not be allowed.
In CSE-2008 allocation alone, some 10 candidates converted insider category vacancies into other categories & simultaneously altering outsider category composition in 10 other states thereby, approximately altering category vacancy filling & final intake in almost 20 cadres. However, only 1 candidate Mr. Shahid Iqbal in claiming such a shifted insider vacancy as per the new vacancy shift formula has caused disadvantage to another candidate (i.e.applicant) selected from his State.
15. In CSE-2008 cadre allocation, Rank 4 candidate (General category) in order to occupy unfilled insider ST vacancy in Punjab has converted outsider General vacancy in Maharashtra into a ST vacancy ( as per formula mentioned in Para 7 (b) of the policy). Now, this has unnecessarily increased the proportion of ST recruitments done since CSE-1994 in Maharashtra & thus for next few years no new ST vacancy would come up in Maharashtra & that too, without any fault of the State.
Same is the case with Himachal Pradesh where a General insider vacancy has been converted into ST vacancy, and thus for next many years no new ST vacancy would be coming up in the Himachal Pradesh cadre as the percentage reservation for ST category is already as low as 7.5% and because a ST vacancy has got filled out of turn in the state.
16. However, a perusal of vacancy distribution for many cadres in CSE-2009 would reveal that the departmental has not even followed its own laid down principles ( as mentioned in the new cadre policy) and have not uniformity applied the principle of compensating certain categories (in next CSE, because their category vacancies had got converted into other categories in the previous CSE); thus defeating the very purpose/spirit behind formulation of this new vacancy shift formula.
17. A general look at the vacancy distribution for few of the cadres that has come up for CSE-2009 shows that due to this vacancy shifting rule how much the relative percentage of various categories in these cadres got affected in CSE-2009 allocation, thereby having its impact on CSE-2009 vacancy distribution.
Vacancy distribution for IAS in CSE-2009 S.No. Cadre General OBC SC ST Total 1 Assam Meghalaya 3 3 6
2. Gujarat 1 4 5
3. Karnataka 3 4 7
4. Kerala 4 1 5
5. Madhya Pradesh 9 1 10
6. Manipur-
Tripura 1 4 5
7. Nagaland 3 3
8. West Bengal 1 2 3 6
(x). No reservation could be made in favour of candidates from any of the category in cadre allocation, as a reserved category candidate get into IAS by taking advantage of different yardsticks. Thus once they joined IAS, there is no reason for giving them better treatment for filling insider vacancy. For equitable distribution of different category candidates in a cadre, the principle of caste based roster reservation is followed based on which vacancy rosters in a State are formulated.
(xi) The flaw in the impugned OM dated 10.04.2008 is apparent from the fact that the same was amended in terms of amendments dated 21.04.2011 and 15.06.2011.
(xii) With introduction of vacancy shift policy, it is not possible to keep a track as to the category of vacancy exchange and the year during which such exchange took place, thus said policy has led to laissez fair play.
(xiii) New policy decision dated 10.04.2008 is not only creating imbalance of strength of candidates from various categories in different cadre, but has also resulted into anomalous situation in allocating insider and outsider vacancies to such category to the extent that even the Department of Personnel and Training is not in a position to maintain the record of the same properly. To establish said contention, in para 9 (E) (8) of the petition, the applicant pleaded as under:-
8. The applicant further craves leave of this learned Tribunal to point out the following other defects:
In case of SC category, in CSE-2008 in few of the cadres according to the new vacancy shift rule insider SC vacancies were converted into other category insider vacancies and thus in those cadres in CSE-2009 vacancy distribution SC category should have been compensated by providing for insider vacancies. But as can be seen that where the department found it convenient they compensated those cadres but left others which is devoid of any justification.
Cadre No. of SC vacancies in CSE-2008 Actual filling in CSE-2008 cadre allocation. No. of SC vacancies in CSE-2009 vacancy distribution. Compensation for SC category West Bengal 1 (insider) 0 (Converted & filled by insider General Category) 3 (2 insider + 1 outsider) Yes Assam Meghalaya 1 (insider) 0 (Converted & filled by insider ST category) 3 (3 outsider) Yes Madhya Pradesh 2 ( 1insider + 1 outsider) 0 [Both converted.
Insider SC into insider OBC & outsider SC into outsider ST] 0 No Thus as can be seen SC category in Madhya Pradesh cadre has not been compensated in CSE-2009 vacancy distribution which is again detrimental to interests of SC category candidates getting selected from M.P. to get their home cadre or any outsider SC candidate opting for M.P. cadre in CSE-2009 Whereas, the department in CSE-2009 vacancy distribution has advertised new SC vacancies for various cadres namely, Gujarat, Bihar, Andhara Pradesh, Jharkhand & Manipur-Tripura. This is illogical as first the department should have compensated cadres like M.P & Assam-Meghalaya with SC vacancies in CSE-2009 & then should have allotted fresh SC vacancies to Gujarat, Bihar, A.P.Jharkhand & Manipur-Tripura in CSE-2009.
(b). The ST category chart:
Cadre No. of ST vacancies in CSE-2008 Actual filling in CSE-2008 cadre allocation. No. of ST vacancies in CSE-2009 vacancy distribution. Compensation for ST category Maharashtra 1 (insider) 0 [converted & filled by insider SC category] 2 (insider + 1 outsider) Yes Chattisgarh 1 (outsider) 0 [converted & filled by outsider General category) 1 (outsider) Yes Karnataka 1 (outsider) 0 [converted & filled by outsider General candidate] 0 No Nagaland 1 (outsider) 0 [converted into outsider General & remained unfilled) 0 No In case of ST category, again deviations have been done in CSE-2009 vacancy distribution. Some of the cadres have been compensated for the ST vacancies that got converted into other category vacancies in CSE-2008 but again some cadres have not been compensated. Thus as can be seen that Karnataka & Nagaland cadres have not been compensated for ST vacancies that got converted in CSE-2008 allocation but at the same time new ST category vacancies have been advertised for the cadres of Uttar Pradesh & Sikkim. This is illogical as first the department should have compensated cadres like Karnataka & Nagaland with ST vacancies in CSE-2009 & then should have allotted fresh ST vacancies to UP & Sikkim.
(xiv) Para 7 of OM dated 10.04.2008 should be replaced by Para 9 of the old roster policy.
(xv) In applying OM dated 10.04.2008 for allocating candidates selected on the basis of examination process of which was initiated on 29.12.2007, respondents have given retrospective effect of said OM which is not permissible being violative of Section 3 (1A) of All India Services Act, 1951.
(xvi) Instead of achieving the object of equitable distribution of insider and outsider vacancies amongst candidates selected from different categories, OM dated 10.04.2008 has defeated the said object.
(xvii) The impugned order dated 13-15/09/2010 passed by respondents rejecting the representation of applicant is not a speaking order and is violative of principles of natural justice.
(xviii) A right vested with applicant in terms of earlier cadre allocation policy could not have been taken away by amendment of the same.
(xix) The impugned OM dated 10.04.2008 has been issued without consultation with the State Government as required under Rule 5 (1) of IAS (Cadre) Rules, 1954.
(xx) OM dated 10.04.2008 has been incorporated with a clear cut favour towards reserved category candidates over General category candidates and to give maximum benefit to reserved category candidates for their allocation against insider vacancies. Said policy is violative of basic principle of the cadre allocation of IAS that is equitable distribution of candidates from various categories to a particular cadre on the basis of merit and preference.
10. In the detailed counter reply filed on behalf of respondent No.1, it is pleaded:-
(i) A member of an All India Service bears liability to serve either the Union or the State to which he is allocated. So long a member of the service is allocated to a state in accordance with the principle of cadre allocation policy framed by DOP&T in larger public interest, he/she can have no grievance merely because the cadre to which he is allocated does not suit him/her or he/she wants to be allocated to his/her home state.
(ii) A person who is appointed to All India Service, has no right to claim allocation to a State of his choice or his home state, as in terms of Rule 5 of relevant rules, Central Government is the sole authority to allocate the member of AIS to various cadres. Para 5 of relevant Cadre Allocation Policy extracted by respondents in their reply reads as under:-
5. The candidates shall give their choice in the order of their preference from amongst the various State cadres including his home cadre/state and if a candidate does not give any preference for any of the cadre (s), it will be presumed that he has no specific preference for those cadre (s). Accordingly if he is not allotted to any one of the cadres for which he had indicated preference, shall be allotted along with other such candidates in the order of rank to any of the remaining cadres, arranged in alphabetical order, in which there are vacancies in his category after allocation of all the candidates who can be allotted to cadres in accordance with their preference.
(iii) The distribution of vacancy outsider and insider in each cadre is made through application of two 30-points roster, one for the distribution of total vacancies and the other for distribution of reserved vacancies. The roster follows the point Outsider-Insider-Outsider; Outsider-Insider- Outsider and so on till all vacancies in a cadre are allotted in a particular year.
(iv) The category wise distribution of vacancies of IAS for the CSE 2008 in Jammu & Kashmir cadre mentioned by respondent in their counter reply reads as under:-
Insider Outsider T G O ST ST T G O SC ST 1 - 1 - - 1 1 - - -
(v) As per para 8(1) of Cadre Allocation Policy issued on 10.04.2008, in the first step, cadre allocation against insider vacancy was considered. Since, there was no insider vacancy in Jammu & Kashmir cadre of general category, applicant could not be allocated to said State. He opted for allocation of home cadre as his first preference. There were three candidates from J&K, viz. S/Shri Raghav Langer i.e. applicant UR (Rank No. 21), Shahid Iqbal, ST (Rank No. 51) and Sumeet Jarangal, SC (Rank No. 214). There were two vacancies, one insider for OBC and one general for outsider category. Against insider vacancy Shri Shahid Iqbal, ST was allotted to J&K cadre. Against outsider general vacancy insider candidate namely Shri Langer could not be considered. Therefore, he was not allocated J&K cadre as per the policy contained in OM dated 10.04.2008 and was allocated to Uttarakhand cadre, which was his fifth preference.
(vi) The contention of the applicant that amended policy has been applied with retrospective effect would not be correct because when the policy came into existence, the cadre allocation on the basis of CSE 2008 was not done.
11. In view of the contention and pleadings put forth by the parties to Original Application following propositions arise to be determined by us:-
(i) Whether policy decision taken by respondents in terms of OM dated 10.04.2008 regarding allocation of candidate selected for appointment to AIS i.e. IAS/IPS/IFS in terms of OM dated 10.04.2008 can be interfered in by this Tribunal.
(ii). Whether reservation can be applied in allocation of candidates selected for appointment in All India Service to various cadres and whether the vacancy shift policy is biased in favour of candidates from the reserved category.
(iii) Whether OM dated 10.04.2008 has resulted in skewed representation of candidates from different categories in various cadres against insider and outsider vacancies to such an extent that if not checked it would lead to chaotic situation.
(iv) Whether OM dated 10.04.2008 can be applied retrospectively.
(v) Whether on introduction of a new policy vide OM dated 10.04.2008 any vested right of the applicant has been abridged.
(vi) Whether the impugned OM dated 10.04.2008 has been issued in violation of Rule 5 (1) of IAS (Cadre) Rules.
12. As far as the policy decision taken by respondent in terms of OM dated 10.04.2008 and scope of interference in the same by this Tribunal is concerned, it would be pertinent to refer to the roster system of cadre allocation prevalent from 1966 to 1977, in terms of which the vacancy in every cadre was to be earmarked for outsider and insider in the ratio of 2:1. To avoid the problem relating to fraction and to ensure the maintenance of such ratio over a period of time, the breakup of vacancies in a cadre was to be calculated following the cycle of outsider, insider, and outsider. The vacancies for SC/ST were required to be reserved in various cadres according to the quota prescribed for them. In order to do so, SC/ST vacancies were to be grouped together and percentage was to be arrived at. Distribution of reserved vacancies in insider and outsider category in each cadre was to be done in the ratio of 2:1. The said ratio was to be operated by following O-I-0 roster like in the case of general candidates. Allocation of insider, both men and women, was to be strictly according to their rank, subject to their willingness to be allocated to their home State. Allocation of outsider, whether general or reserved men and women, was to be according to the roster system after placing insider at their proper place on the chart by arranging all the State cadre/ joint cadre in alphabetical order and dividing them into four groups, which on the basis of average over a period of time, are taking roughly equal number of candidates each. On the basis of average intake during the last 4 years, the groups mentioned in allocation roster system are as follows:-
Group I : Andhra Pradesh, Assam, Meghalaya, Bihar and Gujrat.
Group II: Haryana, Himachal Pradesh, Jammu & Kashmir, Karnataka, Kerala and Madhya Pradesh.
Group III : Maharashtra, Manipur-Tripura, Nagaland, Orissa, Punjab, Rajasthan and Sikkim.
Group IV: Tamil Nadu, Union Territory, Uttar Pradesh and West Bengal.
As the number of cadre/joint cadres was 21, the cycle was planned as 1-21, 22-42, 43-63 and so on. The insider vacancies could be distributed among the State and assigned to different cycle of allotment i.e. if a State gets four insider candidates, they should go to the share of the said State in their respective cycle and if there are two insider candidates from the same cycle, they should be treated as going to the State in two successive cycles and so on.
13. In terms of said roster system, the outsider candidates need to be arranged in the order of merit and allocated to the State cadre in cycle in the manner that in the first cycle, the State cadre/Joint cadre which has not received insider candidates, should be given one candidate each in order of merit of outsider candidates. Such process was to be repeated in successive cycles, each successive cycle beginning with the next successive group of State, for example, second cycle should begin from Group II States, the third cycle with Group III States and the fourth cycle with Group IV States and the fifth cycle again with group I States. In case of such allocation, it could happen that a candidate could get its turn to be allocated to his own home State. In such situation the next candidate below him was required to be exchanged with him. As per said roster for the succeeding year, the State cadre was to be arranged again in alphabetical order with group I of the previous year on the bottom and group II on top. In 3rd year, group III would come on top and the group II which came on top goes down to bottom. The candidates belonging to reserved category, selected on their own merit, were to be treated at par with general candidates for the purpose of allotment, though they could be counted against reserved vacancies. In respect of other candidates belonging to general category, the procedure similar to one adopted for general category was to be followed. In other words, a separate chart was to be prepared with similar grouping of States and similar operational details. The detailed procedure followed in the allotment of cadre of officers as per roster system, mentioned in letter dated 31.05.1985 addressed to Shri T.N.Seshan, then Secretary, Department of Forests & Wild Life has been noted in para 12 hereinabove.
14. Prior to the aforementioned roster system, the allocation of direct recruits to AIS was made in accordance with Limited Zonal Preferences System. In said system, all the cadres/joint cadres were divided into zone and the candidates were given the opportunity to indicate their preferences zone wise and also for two cadres in each zone. The allocation was being made keeping in view the rank and preference of the candidates, subject to allocation of vacancies in each cadre between insider and outsider. Since in terms of said system, there was only a limited movement of candidate from one part of the country to another across several States and even such limited movement could take place only in respect of a few lower ranking candidates, aforementioned roster system which was in vogue from 1966 to 1977 was adopted again in the year 1985. Limited Zonal Preference System remained in force from 1978 till 1984. In terms of Rule 5 (1) of Indian Administrative Service (Cadre) Rules, 1954, the allocation of cadre of officers to various cadres is made by Central Government in consultation with the State Government or the State Government concerned. In terms of Rule 5 (2) of said Rules, the Central Government is empowered to transfer a cadre officer from one cadre to another cadre, with the concurrence of the State Government concerned. Vide Circular No. 14015/27/2005-AIS (1) dated 21.02.2008, a draft cadre allocation policy for the All India Service-IAS/IPS/IFS was circulated to Chief Secretary of all State Governments and Joint Secretary (UT), MHA, North Block, New Delhi with a request for sending the comments of State Government, if any, to Department of Personnel & Training (Ministry of Personnel, Public Grievances & Pensions), Government of India by 05-03-2008. Thereafter, the Central Government issued OM No. 13011/22/2005-AIS (1) dated 10.04.2008 revising the policy for cadre allotment for All India Service-IAS/IPS/IFS as follows:-
1. The State Governments shall indicate the total number of vacancies to be filled through a particular Civil Services Examination (CSE)/Indian Forest Service Examination by 31st December of the year prior to the year of the Examination. In respect of the services under them, the respective Cadre Controlling Authorities, namely, the Department of Personnel and Training (DOPT)/Ministry of Home Affairs (MHA)/Ministry of Environment and Forests (MoEF) shall determine the vacancies including the break-up into Unreserved (UR)/Scheduled Caste (SC)/Scheduled Tribe (ST)/Other Backward Class (OBC)/ Insider /Outsider vacancies for each of the cadres as per established procedure, keeping in mind the number of the districts in the state, the cadre gap in the cadre, the requisitions received from the State Governments and the position of the rosters in the cadre. The vacancies so determined would be communicated to the State Governments and published on the respective Ministrys website, both the actions to be completed before the commencement of the Civil Services Examination/ Indian Forest Service Examination on the basis of which the recruitment is to be made. Since this would be a time bound exercise, the requisition received from the State Governments after the abovementioned deadline would not be considered while determining the vacancies.
2. A 200-point running vacancy-based-roster showing SC/ST/ OBC/UR points shall be maintained for each cadre properly and would be used for determining the vacancies of various categories (SC/ST/OBC/UR) in each cadre. The accounting in this roster shall be done on the basis of actual filling of the roster point. This roster for each of the cadres may be initialized by adjusting the recruitments done since the CSE-1994.
3. The purpose of maintaining the aforesaid roster at the level of the cadres is to ensure equitable representation to various categories and not to exactly implement the policy of reservation, per se, at the level of cadre, for it would not be possible to achieve simultaneously the prescribed percentage of reservation in the intake both at the level of country and at the level of cadre. Implementation of reservation policy on the total intake of service in a particular year would be a mandatory feature. Hence, while determining the category-wise vacancies (SC/ST/OBC/UR) in a cadre for a particular year, if the sum of the vacancies in a category for all the cadres is greater than the total vacancies in that category determined by operating the roster on the total vacancies (intake) for the service in that year, the vacancies in the cadre(s) having the highest excess (on a percentage basis) in that category as per the roster for that cadre(s) would be reduced so as to match the sum of vacancies in that category for all the cadres to the total vacancies in the service for that category. Similarly, if the sum of vacancies in a category for all the cadres is less than the total vacancies in that category determined by operating the roster on the total vacancies (intake) for the service in that year, the vacancies in the cadre(s) having the highest shortfall (on a percentage basis) in that category as per the roster for that cadre(s) would be increased to match the sum of the total vacancies in the service for that category.
4. The insider and outsider vacancies in a cadre shall be determined on the basis of the insider-outsider roster with points as follows: O-I-O-O-I-O and so on, so as to facilitate the maintenance of the ratio of 1:2 between the insiders and the outsiders. It is, however, clarified that depending on the actual filling of the insider vacancies, the ratio between insiders and outsiders in a cadre at any point of time may, however, be less than 1: 2. There would be the following insider-outsider rosters for each cadre: first, for determining the total insiders and outsiders vacancies in the cadre; second, for determining the OBC insider/outsider vacancies and the SC/ST insider/outsider vacancies; and third, for determining SC insider/outsider vacancies and ST insider/outsider vacancies. In the first step, the total insider/outsider vacancies in a cadre shall be determined on the basis of the first roster for the cadre. In the second step, the OBC insider/outsider vacancies and the SC/ST (as one block) insider/outsider vacancies shall be determined on the basis of the second roster for the cadre. And in the last step, the SC insider/outsider vacancies and the ST insider/outsider vacancies shall be determined on the basis of the third roster for the cadre. The UR insider/outsider vacancies for the cadre shall be determined by subtracting the total reserved insider and the total reserved outsider vacancies from the total insider vacancies and the total outsider vacancies respectively. The accounting in the rosters (for total vacancies as well as category-wise vacancies) shall be on the basis of actual filling.
5. The candidates shall give their choice in the order of their preference from amongst the various State cadres including his Home cadre/state and if a candidate does not give any preference for any of the cadre(s), it will be presumed that he has no specific preference for those cadre(s). Accordingly, if he is not allotted to any one of the cadres for which he has indicated preference, he shall be allotted along with other such candidates in the order of rank to any of the remaining cadres, arranged in alphabetical order, in which there are vacancies in his category after allocation of all the candidates who can be allotted to cadres in accordance with their preference.
6. A candidate shall be allotted to his Home cadre or any other cadre, as the case may be, on the basis of his merit, preference and vacancy available at his turn in his category.
7. The following shall be the formula for filling up of an insider vacancy belonging to a particular category for which a candidate is not available.
a. When no candidate is available against an Insider SC vacancy in a Cadre, the same shall be filled up by bringing in the senior most insider officer available in the merit list of ST candidates (failing which in the merit list of OBC candidates and in the merit list of the Unreserved candidates in that order) and shifting the SC vacancy of the Cadre to the cadre to which the incoming officer would have normally been allotted against the available outsider vacancy in his category (failing which to the next cadre in alphabetical order in which the outsider vacancy is available).
b. When no candidate is available against an Insider ST vacancy in a Cadre, the same shall be filled up by bringing in the senior most insider officer available in the merit list of SC candidates (failing which in the merit list OBC list and in the merit list of the Unreserved candidates in that order) and shifting the ST vacancy of the Cadre, to the cadre to which the incoming officer would have normally been allotted against the available outsider vacancy in his category (failing which to the next cadre in alphabetical order in which the outsider vacancy is available).
c. When no candidate is available against an Insider OBC vacancy in a Cadre, the same shall be filled up by bringing in the senior most insider officer available in the merit list of ST candidates (failing which in the merit list of SC candidates and in the merit list of the Unreserved candidates in that order) and shifting the OBC vacancy of the Cadre to the cadre to which the incoming officer would have normally been allotted against the available outsider vacancy in his category (failing which to the next cadre in alphabetical order in which the outsider vacancy is available).
Provided that in every such case listed in clause (a), (b) and (c) above, if insider-physically-disabled-candidate(s) of the relevant community is/are available, such physically disabled candidate (senior most in the merit list) shall be so adjusted. In other words, a physically disabled candidate would have a higher claim for being adjusted as compared with non-physically disabled candidates of his community.
d. When no insider unreserved candidate is available against an Insider Unreserved vacancy available in a Cadre but insider SC/ST/OBC candidate(s) is/are available, such senior most ST candidate (failing which such senior most SC candidate and such senior most OBC candidate in that order) shall be adjusted by shifting out the Unreserved insider vacancy to the next cadre in alphabetical order having outsider vacancy in that category and bringing in an Outsider vacancy of that category from that cadre.
8. The cadre allocation shall consist of three steps as follows:
(i) First, all those candidates who can be allocated against the insider vacancies available in their category would be so allocated.
(ii) Second, the candidates who are eligible for allocation to their Home State as per para 7 above will be allocated-first as per clause (d) of para 7 and then as per the remaining part of para 7. In the context of clause (a), (b) and (c) of para 7 above, the cadres to which the incoming officers would have normally been allocated would be determined by allocating all the candidates remaining unallocated after allocation as per clause (i) of para 8 and clause (d) of para 7 above, against the outsider vacancies plus all the insider vacancies remaining unallocated after the said allocation as per clause (i) of para 8 and clause (d) of para 7 above. Wherever the allocation happens to be against only the unallocated insider vacancy and no outsider vacancy is available in the cadre to facilitate the exchange, the next cadre in alphabetical order in which outsider vacancy is available in the relevant category would be considered for transfer of SC/ST/OBC vacancy as per clause (a), (b) and (c) of para 7 above. If an insider vacancy cannot be filled as per para 7 above, it would be converted to outsider vacancy and filled as such, duly accounting the fact of unfilled insider vacancy in the insider-outsider roster of the relevant cadre.
(iii) Finally, all the remaining candidates will be listed under their respective category in the order of merit and then allocated to a cadre on the basis of their merit, preference and the outsider vacancies in their category (including the outsider vacancies resulting from conversion of insider vacancies, which remained eventually unfilled after the allocation as per clause (i) and (ii) of para 8 above) available at their turn in the cadres other than their home cadre. Notwithstanding this, however, if during the course of allocation against the outsider vacancies as above a candidate is going to be allocated to his own home cadre because there are no other vacancies left for allocation other than those in his home cadre, an exchange would be resorted to whereby the allocation of such candidate would be swapped with the cadre allotted to the first candidate above him in the list whose home state and allotted cadre are different.
9. A reserved category candidate selected on general standards shall be eligible for allocation against the available insider unreserved vacancy as per his merit and preference. But if he cannot be allocated against such vacancy, for he is lower in rank as compared with other general category candidates, he shall be considered for allocation as per his merit and preference against the available insider vacancy of his category and, in case found eligible, adjusted by exchanging insider vacancy in his category into insider UR vacancy and outsider UR vacancy into outsider reserved vacancy of his category. This is to ensure that such candidate is not placed at disadvantageous position vis-`-vis other candidates of his category in the merit list below him.
10. The Cadre allocation exercise for the IAS shall be done as early as possible and before the commencement of the Foundation Course in the LBSNAA. The Cadre allocation exercise for the IPS/IFoS shall also be done immediately after the appointments have been made.
11. This cadre allocation policy issues in supersession of the existing cadre allocation policy and comes into effect with the Civil Services Examination-2008/Indian Forest Service Examination-2008.
15. From the above, it may be seen that the process of allocation of cadres is divided into two parts, viz the first one pertains to allocation of cadre against insider vacancy and the second one relates to allocation of cadre against outsider vacancy. Insider vacancies could be allocated to only those candidates who could have opted for home State and also indicated `that State cadre/joint cadre as first preference. Then unfilled insider vacancies of UR/SC/ST/OBC were filled up by shifting/exchanging vacancies between the category and cadre in the manner prescribed in para 7d, 7a, 7b and 7c respectively. In the process, only those candidates who had given their first preference for their home cadre are allocated to home cadre against insider vacancies. Thereafter, all the unfilled insider vacancies are converted into outsider vacancies as per para 8(ii) of the policy mentioned above. As per para 1 of said policy dated 10.04.2008, first of all cadre wise vacancies of IAS under direct recruitment quota are determined and thereafter the same are distributed as insider/ outsider vacancies amongst General/OBC/SC/ST category. For this purpose, several rosters mentioned in para 2 and 4 of said policy are maintained and used. Para 5 of the said policy enjoins upon the candidates to give their choice in order of their preference from amongst the various states cadre including his/her home State. If a candidate does not give any preference for any of the cadre then it is taken that he has no specific preference. As can be seen from para 8 of aforementioned OM, there are three steps to be taken for the cadre allocation, viz:-
(i) First, all those candidates who can be allocated against the insider vacancies available in their category would be so allocated.
(ii) Second, the candidates who are eligible for allocation to their Home State as per para 7 above will be allocated-first as per clause (d) of para 7 and then as per the remaining part of para 7. In the context of clause (a), (b) and (c) of para 7 above, the cadres to which the incoming officers would have normally been allocated would be determined by allocating all the candidates remaining unallocated after allocation as per clause (i) of para 8 and clause (d) of para 7 above, against the outsider vacancies plus all the insider vacancies remaining unallocated after the said allocation as per clause (i) of para 8 and clause (d) of para 7 above. Wherever the allocation happens to be against only the unallocated insider vacancy and no outsider vacancy is available in the cadre to facilitate the exchange, the next cadre in alphabetical order in which outsider vacancy is available in the relevant category would be considered for transfer of SC/ST/OBC vacancy as per clause (a), (b) and (c) of para 7 above. If an insider vacancy cannot be filled as per para 7 above, it would be converted to outsider vacancy and filled as such, duly accounting the fact of unfilled insider vacancy in the insider-outsider roster of the relevant cadre.
(iii) Finally, all the remaining candidates will be listed under their respective category in the order of merit and then allocated to a cadre on the basis of their merit, preference and the outsider vacancies in their category (including the outsider vacancies resulting from conversion of insider vacancies, which remained eventually unfilled after the allocation as per clause (i) and (ii) of para 8 above) available at their turn in the cadres other than their home cadre. Notwithstanding this, however, if during the course of allocation against the outsider vacancies as above a candidate is going to be allocated to his own home cadre because there are no other vacancies left for allocation other than those in his home cadre, an exchange would be resorted to whereby the allocation of such candidate would be swapped with the cadre allotted to the first candidate above him in the list whose home state and allotted cadre are different. As can be seen from aforementioned, it is the contention of the applicant that the purpose of maintaining roster at the level of cadre is to ensure equitable representation of various categories in different cadres and not to exactly implement the policy of reservation per se at the level of cadre, as it would not be possible to achieve simultaneously the prescribed percentage of reservation intake, both at the level of country and at the level of cadre. Having pleaded so, the applicant has questioned the policy by contending that the shifting of vacancy from one category to another category in terms of Para 7 of said OM has skewed vacancy distribution among various categories. In para 8 and 9 of the petition, the applicant has sought to demonstrate the skew in final vacancy filling of various categories in different cadres in CSE-2008. A part of para 9 has been extracted hereinabove and is not therefore reiterated. In the said paragraph the applicant has emphasized that OM dated 10.04.2008 is irrational and bad for the reason that it has skewed the representation of various categories against insider and outsider vacancies in different cadres. It is also the contention of the applicant that with introduction of vacancy shifting policy, the representation of ST candidates in their home cadre has irrationally increased. Referring to such representation of candidates from ST category in their home cadre, applicant has contended that the OM dated 10.04.2008 is biased in favour of ST category. In sum and substance, the emphasis in his original application is that OM dated 10.04.2008 has disturbed the reservation or presence of candidates from various categories against insider and outsider vacancies in different cadres. Having taken such stand, the applicant also pleaded that admittedly there is no reservation per se in the allocation of cadre. When the applicant has alleged inherent problem/contradiction in policy dated 10.04.2008, it is found that he himself has taken contradictory stand, viz. -
(i) There is no reservation per se in the cadre allocation.
(ii) With introduction of OM dated 10.04.2008, the quota reserved for various categories in different categories is skewed. To highlight such contradiction in pleadings of the applicant, para 9 (E) 1 and 2 of the OA are extracted hereinbelow:-
1. It is respectfully submitted that admittedly the new cadre allocation policy as in impugned OM dated 10.04.2008 was framed keeping in mind the problems being faced by tribal states like Nagaland which is apparent from Annexure-K of the instant OA. The reservations of a few members in this regard are also on record. The bias in favour of category candidates in shifting the unfilled insider vacancies is apparent. It is respectfully submitted that such bias is violative of Article 14 of the Constitution of India as admittedly there is no reservation per se in the cadre allocation. A reserved category candidate gets into IAS by taking advantage of different yardsticks. But once they join IAS, there is no reason for giving them better treatment for filling insider vacancies. Having said so, the applicant respectfully submits that for equitable distribution of different category candidates in a cadre; the principle of caste based reservation is followed and based on which vacancy rosters in a state are formulated. The flaw of the impugned OM dated 10.04.2008 is further apparent from the fact that two amendments dated 21.4.2011 and 15.06.2011 has already been has been made.
xx xx xx
2. The vacancy-based rosters of various states have been totally disturbed due to this new vacancy shift formula and thus as is apparent from the skewed vacancy distribution seen in CSE-2009 for IAS in various cadres.
OIOO10010 0 OBC 1 SC/ST 0 OBC 0 SC/ST 1 OBC 0 SC/ST 0 OBC 1 SC/ST 0 OBC 0 SC/ST 1 OBC 0 SC/ST 0 OBC 1 SC/ST In the old roster system of allocation, the sanctity of rosters was fully maintained and with complete objectivity and precision the vacancies to be filled up in a particular cadre for a given year were calculated.
However, due to new cadre policys vacancy shift rule, the vacancy distribution in various cadres has not only become skewed but has led to subjectivity in the vacancy distribution scheme and has introduced scope of favoritism.
(iii) As it is so contended by the applicant also, the purpose of maintaining 200-point running vacancy based roster showing SC/ST/OBC/UR point is only to ensure equitable representation of various categories and not exactly to implement the policy of reservation, per se at the level of cadre, as it is considered not possible to achieve simultaneously the prescribed percentage of reservation in the intake both at the level of country and at the level of cadre. Relevant excerpts of para 3 of OM dated 10.04.2008 read as under:-
3. The purpose of maintaining the aforesaid roster at the level of the cadres is to ensure equitable representation to various categories and not to exactly implement the policy of reservation, per se, at the level of cadre, for it would not be possible to achieve simultaneously the prescribed percentage of reservation in the intake both at the level of country and at the level of cadre. Implementation of reservation policy on the total intake of service in a particular year would be a mandatory feature. Hence, while determining the category-wise vacancies (SC/ST/OBC/UR) in a cadre for a particular year, if the sum of the vacancies in a category for all the cadres is greater than the total vacancies in that category determined by operating the roster on the total vacancies (intake) for the servicein that year, the vacancies in the cadre(s) having the highest excess (on a percentage basis) in that category as per the roster for that cadre(s) would be reduced so as to match the sum of vacancies in that category for all the cadres to the total vacancies in the service for that category. Similarly, if the sum of vacancies in a category for all the cadres is less than the total vacancies in that category determined by operating the roster on the total vacancies (intake) for the service in that year, the vacancies in the cadre(s) having the highest shortfall (on a percentage basis) in that category as per the roster for that cadre(s) would be increased to match the sum of the total vacancies in the service for that category.
16. In his Original Application, applicant has mostly questioned the shifting of insider OBC vacancy to senior most insider officer available in the merit list of ST candidates. In other words, he has questioned para 7 (C) of OM dated 10.4.2008. It is noticed that even in roster system of cadre allocation in vogue from 1966-1977, which had been adopted in 1985 with certain modifications also, it is provided that if there is a shortfall in general insider quota, it would be made up by insider reserved category candidates. Clause 4 (vii) of said policy read as under:-
In the case of candidates belonging to the reserved category, such of those candidates, whose position in the merit list is such that they could have been appointed to the service even in the absence of any reservation, will be treated on par with general candidates for purposes of allotment though they will be counted against reserved vacancies. In respect of other candidates belonging to the reserved category a procedure similar to the one adopted for general candidates would be adopted. In other words, a separate chart should be prepared with similar grouping of States and similar operational details should be followed. If there is a shortfall in general insiders quota it could, however, be made up by insider reserved candidates. Thus the vacancy shifting mentioned in OM dated 10.04.2008 is not a novel system, but is a system which remained in vogue and is only elaborated in said OM. In terms of roster system of cadre allocation, applicant has made an attempt to point out the changes introduced by new cadre policy viz. as per earlier roster a candidate could claim insider vacancy in his home state only belonging to his category ( as per principle laid down in para 9 of roster policy) whereas in new cadre allocation policy, a candidate, in order to get his home state, can even convert an unfilled insider vacancy belonging to a different category in the state ( as laid down in Para 7 (a), (b), (c) & (d). When the applicant has referred to aforementioned change as two changes, such change can be called only one. However, as can be seen from the roster system of cadre allocation noted in letter dated 30/31/05-1985 addressed to Shri T.N.Seshan, then Secretary, Department of Forests & Wild Life if there is a shortfall in general insider, it could be made up by insider reserved category candidate. Probably the change which the applicant wants to indicate is that in terms of vacancy shift policy dated 10.04.2008, even in case of shortfall in OBC insider quota also, the vacancy is given to a senior most insider officer available in the merit list of ST candidate (failing which in the merit list of SC candidate and in the merit list of unreserved candidate in that order). From the aforementioned vacancy shift policy, it is clear that in terms of the same, there is possibility of insider OBC vacancy being given to insider unreserved category candidate also, i.e. in consonance with the purpose of maintaining vacancy based roster to ensure equitable representation of various categories in different cadres. The object of filling up the insider OBC vacancy in a cadre by bringing in the senior most insider officer available in the merit list from ST category, failing which SC category may also be to ensure the maintenance of reservation in AIS at country level and also to ensure that the percentage of reservation does not exceed the maximum limit of 50%. The said intention is also apparent from the fact that the insider OBC vacancy given to insider ST candidate on account of non availability of insider OBC candidate is shifted to the cadre to which the incoming officer could have normally been allotted against the available outsider vacancy in his category (failing which to the next cadre in alphabetical order in which the outsider vacancy is available). Thus if in normal course ST candidate could have gone to State wise as outsider candidate on his getting insider vacancy in home state, the outsider ST vacancy in such case is given to outsider OBC candidate which result into maintenance of reservation quota in service at country level. Only ground raised by applicant to question OM dated 10.04.2008 is skewness of representation of various categories in different cadre. Apparently as per applicants own stand, no reservation is intended to be made in cadre allocation and skewness in representation at cadre level is quite possible. Such skewness in representation resulting in non maintenance of quota as per reservation policy for various categories, which some time culminate into excess representation of candidates from ST category in a particular cadre against insider vacancy, can be no ground to interfere with the policy decision taken by the Government.
17. In Union of India and Others Vs. Rajiv Yadav, IAS and Ors (1994) 6 SCC 38), Honble Supreme Court was of the view that roster system ensures equitable treatment to both the general candidate and the reserved category:
6. We may examine the question from another angle. A selected candidate has a right to be considered for appointment to the IAS but he has no such right to be allocated to a cadre of his choice or to his home-State. Allotment of cadre is an incidence of service, A member of an All India Service bears liability to serve in any part of India. The principles of allocation as contained in Clause 2 of the letter dated May 31, 1985, wherein preference is given to a Scheduled Caste/Scheduled Tribe candidate for allocation to his home State, do not provide for reservation of appointments or posts and as such the question of testing the said principles on the on the anvil of Article 16(4) of the Constitution of India does not arise. It is common knowledge that the Scheduled Caste/Scheduled Tribe candidates are normally much below in the merit list and as such are not in a position to compete with the general category candidates. The "Roster System" ensures equitable treatment to both the general candidates and the reserved categories. In compliance with the statutory requirement and in terms of Article 16(4) of the Constitution of India 22 1/2% reserved category candidates are recruited to the IAS. Having done so both the categories are to be justly distributed amongst the States. But for the "Roster System" it would be difficult rather impossible for the Scheduled Castes/Scheduled Tribes candidates to be allocated to their home States. The principles of cadre allocation, thus, ensure equitable distribution of reserved candidates amongst all the cadres. In Ekta Shakti Foundation Vs. Govt. of NCT of Delhi (AIR 2006 SC 2609), Honble Supreme Court held that while exercising the power of judicial review of administrative action, the Court is not to act as an appellate authority and the Constitution does not permit the Court to direct or advise the executive in matter of policy or to sermonize any matter which under the Constitution lies within the sphere of the legislature or the executive, provided these authorities do not transgress their constitutional limit or statutory power. In terms of the view taken by Honble Supreme Court in said case, the scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provision or is violative of the fundamental rights of the citizens or is opposed to the provisions of the Constitution. In the present case, applicant has not raised any of the aforementioned pleas to question the validity of OM dated 10.04.2008. Only plea taken by him is the skewness of quota reserved for various categories in different state cadre. Once in terms of the policy itself, the object of maintenance of cadre allocation roster is to give equitable representation to various categories and not to maintain any reservation quota at State level in various categories, the plea of the skewness does not satisfy the test laid down by Honble Supreme Court in aforementioned case. For easy reference, para 10, 11 and 12 of said judgment are extracted hereinbelow:-
10. While exercising the power of judicial review of administrative action, the Court is not the appellate authority and the Constitution does not permit the Court to direct or advise the executive in matter of policy or to sermonize any matter which under the Constitution lies within the sphere of the Legislature or the executive, provided these authorities do not transgress their constitutional limits or statutory power. (See Ashif Hamid v. State of J. & K. (AIR 1989 SC 1899), Shri Sitaram Sugar Co. v. Union of India (AIR 1990 SC 1277). The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or is violative of the fundamental rights of the citizens or is opposed to the provisions of the Constitution. Thus, the position is that even if the decision taken by the Government does not appear to be agreeable to the Court it cannot interfere.
11. The correctness of the reasons which prompted the Government in decision making, taking one course of action instead of another is not a matter of concern in judicial review and the Court is not the appropriate forum for such investigation.
12. The policy decision must be left to the Government as it alone can adopt which policy should be adopted after considering all the points from different angles. In matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental right is not shown Courts will have no occasion to interfere and the Court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the propriety of a decision of the Government the Court cannot interfere even if a second view is possible from that of the Government. In view of the aforementioned, we are of the considered view that cadre allocation policy issued in terms of OM dated 10.04.2008 as amended vide OM No.29062/1/2011-AIS-1 dated 21.4.2011 and OM No.13013/2/2010-AIS-1 dated 16.05.2011 does not call for any interference by this Tribunal.
18. The applicant has also questioned the efforts being made by Government in making reservation in allocation of candidates selected for appointment as IAS to vacancy in insider and outsider quota in different cadres. Article 16 of the Constitution of India provides for equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Said article does not provide for equal opportunity in the matter of transfer/posting/ allocation to cadres or State to Government servant. Likewise, Article 16 (4) provides that the State cannot be prevented from making any provision for the reservation of appointment or post in favour of any backward class of citizen which, in the opinion of the State is not adequately represented in the services under the State. Similarly the State is also not prevented from making provision for reservation ( in the matters of promotion, with consequential seniority, to any class) or classes of posts in the services under the State in favour of SC & ST, if in the opinion of the State, they are not adequately represented in the services under the State. In terms of Article 16 (4)(B) of the Constitution, State is also not prevented from considering any unfilled vacancy of the year reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause 4 (A) as a separate class of vacancies to be filled up in any succeeding year or years and not considering for such class of vacancies together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year. In M.Nagaraj and Others Vs. UOI & Others (2006) 8 SCC 212), Honble Supreme Court, while examining the width and amplitude of the right to equal opportunity in public employment in the context of reservation observed that one view of reservation as a generatic is anti poverty measure. While there is a different view which say reservation is merely providing a right of access and that is not a right to redressal. In the said case while dealing with concepts of equity, justice and merit, Honble Supreme Court was of the view that reservation is necessary for transcending caste and not for perpetuating it. Reservation has to be used in a limited sense otherwise it will perpetuate casteism in the country. Para 49 of the judgment reads as under:-
49. Reservation is necessary for transcending caste and not for perpetuating it. Reservation has to be used in a limited sense otherwise it will perpetuate casteism in the country. Reservation is under-written by a special justification. Equality in Article 16(1) is individual-specific whereas reservation in Article 16(4) and Article 16(4A) is enabling. The discretion of the State is, however, subject to the existence of "backwardness" and "inadequacy of representation" in public employment. Backwardness has to be based on objective factors whereas inadequacy has to factually exist. This is where judicial review comes in. However, whether reservation in a given case is desirable or not, as a policy, is not for us to decide as long as the parameters mentioned in Articles 16(4) and 16(4A) are maintained. As stated above, equity, justice and merit (Article 335)/efficiency are variables which can only be identified and measured by the State. Therefore, in each case, a contextual case has to be made out depending upon different circumstances which may exist State wise. As is noted in the said judgment word of caution reservation was first pointed out in G.M.S.Rly v. Rangachari (AIR 1962 SC 36). In the said case, Honble Mr.Justice Gajendragadhar giving the majority judgment said that reservation under Article 16 (4) is intended merely to give adequate representation to backward communities. It cannot be used for creating monopoly or for unduly or illegitimately disturbing the legitimate interest of other employees. A reasonable balance must be struck between the claim of backward classes and claim of other employees as well as the requirement of efficiency of administration. Paras 55 to 59 of the judgment read as under:-
55. Word of caution against excess reservation was first pointed out in The General Manager, Southern Railway and another v. Rangachari Gajendragadkar, J. giving the majority judgment said that reservation under Article 16(4) is intended merely to give adequate representation to backward communities. It cannot be used for creating monopolies or for unduly or illegitimately disturbing the legitimate interests of other employees. A reasonable balance must be struck between the claims of backward classes and claims of other employees as well as the requirement of efficiency of administration.
56. However, the question of extent of reservation was not directly involved in Rangachari15. It was directly involved in M.R. Balaji & Ors. V. The State of Mysore & Ors. with reference to Article 15(4). In this case, 60% reservations under Article 15(4) was struck down as excessive and unconstitutional. Gajendragadkar, J. observed that special provision should be less than 50 per cent, how much less would depend on the relevant prevailing circumstances of each case.
57. But in State of Kerala and another v. N.M. Thomas and others Krishna Iyer, J. expressed his concurrence to the views of Fazal Ali, J. who said that although reservation cannot be so excessive as to destroy the principle of equality of opportunity under clause (1) of Article 16, yet it should be noted that the Constitution itself does not put any bar on the power of the Government under Article 16(4). If a State has 80% population which is backward then it would be meaningless to say that reservation should not cross 50%.
58. However, in Indra Sawhney the majority held that the rule of 50% laid down in Balaji16 was a binding rule and not a mere rule of prudence.
59. Giving the judgment of the Court in Indra Sawhney, Reddy, J. stated that Article 16(4) speaks of adequate representation not proportionate representation although proportion of population of backward classes to the total population would certainly be relevant. He further pointed out that Article 16(4) which protects interests of certain sections of society has to be balanced against Article 16(1) which protects the interests of every citizen of the entire society. They should be harmonized because they are restatements of principle of equality under Article 14. (emphasis added) It is acknowledged by Honble Supreme Court in the case of R.K.Sabharwal Vs. State of Punjab (1995) 2 SCC 749) that the candidate from reserved category can find place in the select list by achieving merit along with general category candidate. Thus in the case of M.Nagaraj and Ors Vs. UOI & Ors (supra), Honble Supreme Court viewed that the fact that considerable number of members of backward classes have been appointed/promoted against general seats in the State services may be relevant factor for the State Government to review the question of continuing reservation for the class/category from which candidate can find place in general merit. Para 60 of said judgment reads as under:-.
60. In Indra Sawhney Reddy, J. noted that reservation under Article 16(4) do not operate on communal ground. Therefore if a member from reserved category gets selected in general category, his selection will not be counted against the quota limit provided to his class. Similarly, in R.K. Sabharwal the Supreme Court held that while general category candidates are not entitled to fill the reserved posts; reserved category candidates are entitled to compete for the general category posts. The fact that considerable number of members of backward class have been appointed/promoted against general seats in the State services may be a relevant factor for the State Government to review the question of continuing reservation for the said class. In paras 61 to 68 of aforementioned judgment, Honble Supreme Court ruled that the reservation in a year should not be beyond 50% of the total number of posts in that category. As has been held in para 107 of the judgment, Article 16 (4) of the Constitution provide reservation for backward classes in cases of inadequate representation in public employment. For easy reference said para is extracted hereinbelow:-
107. It is important to bear in mind the nature of constitutional amendments. They are curative by nature. Article 16(4) provides for reservation for backward classes in cases of inadequate representation in public employment. Article 16(4) is enacted as a remedy for the past historical discriminations against a social class. The object in enacting the enabling provisions like Articles 16(4), 16(4A) and 16(4B) is that the State is empowered to identify and recognize the compelling interests. If the State has quantifiable data to show backwardness and inadequacy then the State can make reservations in promotions keeping in mind maintenance of efficiency which is held to be a constitutional limitation on the discretion of the State in making reservation as indicated by Article 335. As stated above, the concepts of efficiency, backwardness, inadequacy of representation are required to be identified and measured. That exercise depends on availability of data. That exercise depends on numerous factors. It is for this reason that enabling provisions are required to be made because each competing claim seeks to achieve certain goals. How best one should optimize these conflicting claims can only be done by the administration in the context of local prevailing conditions in public employment. This is amply demonstrated by the various decisions of this Court discussed hereinabove. Therefore, there is a basic difference between 'equality in law' and 'equality in fact' (See: 'Affirmative Action' by William Darity). If Articles 16(4A) and 16(4B) flow from Article 16(4) and if Article 16(4) is an enabling provision then Articles 16(4A) and 16(4B) are also enabling provisions. As long as the boundaries mentioned in Article 16(4), namely, backwardness, inadequacy and efficiency of administration are retained in Articles 16(4A) and 16(4B) as controlling factors, we cannot attribute constitutional invalidity to these enabling provisions. However, when the State fails to identify and implement the controlling factors then excessiveness comes in, which is to be decided on the facts of each case. In a given case, where excessiveness results in reverse discrimination, this Court has to examine individual cases and decide the matter in accordance with law. This is the theory of 'guided power'. We may once again repeat that equality is not violated by mere conferment of power but it is breached by arbitrary exercise of the power conferred.
As can be seen from the view taken by Honble Supreme Court in aforementioned case and also the provision of 16(4) of the Constitution, the State is not prevented from making provision for reservation in favour of SC and ST which in the opinion of the State are not adequately represented in the services under the State. Thus the State is enabled to ensure the adequate representation of reserved category candidate in a particular services. Recently in U.P. Power Corporation Ltd. Vs. Rajesh Kumar & Ors ( 2012 (4) Scale 687 while examining the Constitutional validity of Section 3 (7) of 1994 Act and validity of Rule 8A of U.P. Government servants seniority Rules, 1991 incepted by the U.P Government Servants Seniority (3rd amendment) Rules 2007, Honble Supreme Court viewed that there can be no scope of doubt to hold that recent and special rule conferring the benefits of consequential seniority upon the members of SC and ST on account of reservation in promotion in a particular service or grade or post has any way obliterated the equality code contained under Articles 14,15 and 16 of the Constitution as concepts of recent and special rule of seniority does not directly flow from Article 16 (1) and (4) of the Constitution of India. Relevant para of said judgment reads as under:-
We are bound by the aforesaid decision of Honble Apex Court in M.Nagraj case (supra). Therefore, there can be no scope for doubt to hold that deletion of catch-up rule and conferring the benefits of consequential seniority upon the members of SC and ST on account of reservation in promotion in a particular grade service or grade or post has any way obliterated the equality code contained under Article 14, 15 and 16 of the Constitution as concept of catch-up rule of seniority does not directly flow from Article 16 (1) and (4) of the Constitution of India. We are of the considered opinion that Rule 8A of 1991 rules has merely effectuated the provisions contained under Article 16 (4A) of the Constitution of India whereby benefit of consequential seniority has been given to the members of scheduled castes and scheduled tribes due to reservation/roster in promotion by obliterating the concept of catch-up Rule of seniority. Rule 8A of 1991 Rules specifically stipulates that if any member of scheduled castes or scheduled tribes is promoted on any post or grade in service earlier to other categories of persons, the member of SC/ST shall be treated to be senior to such other categories of persons who are promoted subsequently after promotion of members of SC/ST, despite anything contained in Rules 6,7 and 8 of 1991 Rules. In our view Rule 8A of 1991 Rules has constitutional sanctity of Article 16 (4A) of the Constitution and cannot be found faulty merely on account of violation of judicially evolved concept of catch-up rule of seniority which has been specifically obliterated by Article 16 (4A) of the Constitution. Likewise the said rule can also not be held to be unconstitutional or invalid on account of obliteration of any other judicially evolved principle of seniority or any other contrary rules of seniority existing under Rules 6,7 and 8 of 1991. Rules, as Rule 8A of 1991 Rules opens with non-obstante clause with overriding effect upon Rules 6,7 and 8 of 1991 Rules, therefore, , we do not find any jurisdiction to strike down the provisions contained under Rule 8-A of 1991 Rules on the said ground and on any of the grounds mentioned in the writ petition.
Making a reference to the judgment in the case of Indra Sawhney and another Vs. UOI and Ors ( 1992 Supp (3) SCC 217), Honble Supreme Court observed that clause 4 of Article 16 of the Constitution provides for reservation only in the matter of initial appointment and the provision of reservation in the matter of promotion enabled the member of a reserved category to leap-frog over his compatriots, which generate acute heartburning and may well lead to inefficiency in administration. Relevant excerpt of the judgment of UP Power Corporation Ltd. Vs. Rajesh Kumar and ors (supra) read as under:-
Eventually, in the case of Indra Sawhey and another v. Union of India and others (supra) the nine-Judge Bench, while dealing with the question whether clause (4) of Article 16 of the Constitution provides for reservation only in the matter of initial appointment, direct recruitment or does it contemplate and provide for reservations being made in the matter of promotion as well., recorded the submissions of the petitioners in paragraph 819 which reads as follows:-
The petitioners submission is that the reservation of appointments or posts contemplated by clause (4) is only at the stage of entry into State service, i.e. direct recruitment. It is submitted that providing for reservation thereafter in the matter of promotion amounts to a double reservation and if such a provision is made at each successive stage of promotion it would be a case of reservation being provided that many times. It is also submitted that by providing reservation in the matter of promotion, the member of a reserved category is enabled to leapfrog over his compatriots, which is bound to generate acute heartburning and may well lead to inefficiency in administration. The members of the open competition category would come to think that whatever be their record and performance, the members of reserved categories would steal a march over them, irrespective of their performance and competence. Examples are give how two persons (A) and (B), one belonging to O.C.category and the other belonging to reserved category, having been appointed at the same time, the member of the reserved category gets promoted earlier and how even in the promoted category he jumps over the members of the O.C. category already there and gains a further promotion and so on. This would generate, it is submitted, a feeling of disheartening which kills the spirit of competition and develops a sense of disinterestedness among the members of O.C. category. It is pointed out that once persons coming from different sources join a category or class, they must be treated alike thereafter in all matters including promotions and that no distinction is permissible on the basis of their birth-mark. It is also pointed out that even the Constituent Assembly debates on draft Article 10 (3) do not indicate in any manner that it was supported to extend to promotions as well. It is further submitted that if Article 16 (4) is construed as warranting reservation even in the matter of promotion it would be contrary to the mandate of Article 335 viz., maintenance of efficiency in administration. It is submitted that such a provision would amount to putting a premium upon inefficiency. The members of the reserved category would not work hard since they do not have to compete with all their colleagues but only within the reserved category and further because they are assured of promotion whether they work hard and efficiently or not. Such a course would also militate against the goal of excellence referred to in clause (J) of Article 51-A (Fundamental Duties). Making reference to paras 123 and 124 of the judgment in the case of M.Nagraj and Ors. Vs. UOI & Ors (supra) and in the case of U.P.Power Corporation Limited Vs. Rajesh Kumar & Ors (supra), Honble Supreme Court emphasized that in making reservation the State concerned will have to show in each case the existence of compelling reason, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. The concept of judgment of Honble Supreme Court containing reference to said Paras 123 and 124 read as under:-
123. However, in this case, as stated, the main issue concerns the "extent of reservation". In this regard the concerned State will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SC/ST in matter of promotions. However if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.
124. Subject to above, we uphold the constitutional validity of the Constitution (Seventy-Seventh Amendment) Act, 1995, the Constitution (Eighty-First Amendment) Act, 2000, the Constitution (Eighty-Second Amendment) Act, 2000 and the Constitution (Eighty-Fifth Amendment) Act, 2001. Analyzing the legal precedents on the subject, the Honble Supreme Court carved out certain principles on reservation in para 38 of the said judgment. For easy reference para 38 of the said judgment reads as under:-
38. From the aforesaid decision and the paragraphs we have quoted hereinabove, he following principles can be carved out:-
Vesting of the power by an enabling provision may be constitutionally valid and yet exercise of power by the State in a given case may be arbitrary, particularly. If the State fails to identify and measure backwardness and inadequacy keeping in mind the efficiency of service as required under Article 335.
Article 16(4) which protects the interests of certain sections of the society has to be balanced against Article 16 (1) which protects the interests of every citizen of the entire society. They should be harmonized because they are restatements of the principle of equality under Article 14.
Each post gets marked for the particular category of candidates to be appointed against it and any subsequent vacancy has to be filled by that category candidate.
The appropriate Government has to apply the cadre strength as a unit in the operation of the roster in order to ascertain whether a given class/group is adequately represented in the service. The cadre strength as a unit also ensures that the upper ceiling-limit of 50% is not violated. Further roster has to be post-specific and not vacancy based.
The State has to form its opinion on the quantifiable data regarding adequacy of representation. Clause (4A) of Article 16 is an enabling provision. It gives freedom to the State to provide for reservation in matters of promotion. Clause (4A) of Article 16 applies only to SCs and STs. The said clause is carved out of Article 16 (4A). Therefore, Clause (4A) will be governed by the two compelling reasons backwardness and inadequacy of representation, as mentioned in Article 16 (4). If the said two reasons do not exist, then the enabling provision cannot be enforced.
If the ceiling-limit on the carry-over of unfilled vacancies is removed, the other alternative time-factor comes in and in that event, the time-scale has to be imposed in the interest of efficiency in administration as mandated by Article 335. If the time-scale is not kept, then posts will continue to remain vacant for years which would be detrimental to the administration. Therefore, in each case, the appropriate Government will now have to introduce the duration depending upon the fact situation.
If the appropriate Government enacts a law providing for reservation without keeping in mind the parameters in Article 16 (4) and Article 335, then this Court will certainly set aside and strike down such legislation.
The constitutional limitation under Article 335 is relaxed and not obliterated. As stated above, be it reservation or evaluation, excessiveness in either would result in violation of the constitutional mandate. This exercise, however, will depend on the facts of each case.
The concepts of efficiency, backwardness and inadequacy of representation are required to be identified and measured. That exercise depends on the availability of data. That exercise depends on numerous factors. It is for this reason that the enabling provisions are required to be made because each competing claim seeks to achieve certain goals. How best one should optimize these conflicting claims can only be done by the administration in the context of local prevailing conditions in public employment.
Article 16 (4), therefore, creats a field which enables a State to provide for reservation provided there exists backwardness of a class and inadequacy of representation in employment. These are compelling reasons. They do not exist in Article 16 (1). It is only when these reasons are satisfied that a State gets the power to provide for reservation in the matter of employment.
As can be seen from aforementioned principle the appropriate Government has to apply the cadre strength as a unit in the operation of the roster in order to ascertain whether a given class/group adequately represented in the service. The cadre strength as a unit also ensures that the upper ceiling limit of 50% is not violated. As per the principle 38 (vii) carved out by Honble Supreme Court in said judgment if the appropriate Government enacts a law providing for reservation without keeping in mind the parameters in Article 16 (4) and Article 335 then the Court will certainly set aside and strike down such legislation.
19. In view of the law so declared by Honble Supreme Court, the excess/overwhelming representation of candidates from ST category in their home cadre, narrated by applicant in paras 6 to 9 of his Original Application, may need to be looked into by respondents. As has been noticed in UOI & Ors vs. Rajiv Yadav, IAS & Ors, the principle of cadre allocation gives preference to SC/ST candidates for allocation to their home State but it does not provide for reservation for appointment or post. It ensures equitable treatment to both general category and reserved category. The principle of cadre allocation ensures equitable distribution of reserved candidates among all the cadres. Such is also the objective of OM dated 10.04.2008 as mentioned in Para 3 of the same. However, when in Para 6 of the judgment of Honble Supreme Court, the object of giving preference to SC/ST candidates is mentioned as equitable distribution of reserved category candidates, in para 3 of OM dated 10.04.2008, the same is mentioned equitable representation to various categories. In fact the term representation is one which is used in Article 16 (4 ) (a) and 16 (4) (b) of the Constitution. However in said clauses, enabling provision is made for giving adequate representation to persons from certain categories while para 3 of OM provides for equitable representation to various categories. When any policy decision intends to give equitable representation, it needs to be ensured that such representation remains equitable alone and does not become excessive or overwhelming. The fact which may not skip the notice of this Tribunal is also that in prestigious educational institutes in Metros, reservation has been made in favour of candidates from OBC, SC and ST category. For the sake of betterment in present scenario and for the sake of admission in prestigious institute itself, a person hailing from a reserved category gets a chance to share adequate opportunity of education with meritorious students from general category, while a large segment of candidates from general category who may have performed better than reserved category candidates, would be relegated to find occasion to study only in such institutes which are not considered that prestigious. In such circumstances, while participating in All India Competitive Examination for being inducted into service like Indian Administrative Service, Indian Police Service and Indian Forest Service, there may be many general category candidate who are less fortunate than the reserved category candidates in the matter of getting opportunity to study in educational institute known as prestigious and stand lesser chance for their success. Recent data published in Hindustan Times, New Delhi June, 2012 indicates that out of total 54000 seats at Delhi University, 14580 are reserved for OBC students, 12150 are reserved for SC/ST and 27,270 are left for general category students. In the circumstances, number of general category students will have to disperse here and there to pursue their study only in lesser prestigious institutes. There is another factor i.e. that reservation has been made for OBC/SC/ST candidates in direct recruitment to IAS. Certainly the candidates from such category are selected with relaxed standard and they get opportunity to serve in one or the other cadres, may be against insider or outsider vacancy. Thus, what is needed to be seen is that in the interest of efficiency of service, the equitable representation of candidates from all categories in all cadres may be ensured, while the representation of SC/ST/OBC category candidates in their home State may not be that important. However, these are the issues which may be looked into by respondents in view of the principles carved out in Para 38 of judgment of Honble Supreme Court in UP Power Corporation Ltd. Vs. Rajesh Kumar (supra) and this Tribunal cannot give them any direction to act in a particular manner.
20. As far as the sufficiency of ground of skewness for interfering in policy decision taken by respondents in terms of OM dated 10.04.2008 is concerned, as has been held hereinabove, the scope of judicial enquiry is confined to the question whether the decision taken by Government is against any statutory provisions or is violative of the fundamental rights of the citizens or is opposed to the provisions of the Constitution. As has been held by Honble Supreme Court in UOI & Ors. Vs. Rajiv Yadav, IAS and Ors. (supra), applicant has no legal right far less fundamental right to be allocated any particular cadre. Thus OM dated 10.04.2008 is neither against any statutory provision nor is violative of fundamental right of the applicant nor the same is opposed to the provisions of Constitution. The skewness of representation of candidates of various categories in different cadres cannot be a ground for interference in policy decision taken by respondents for allocating IAS officer to various cadres. In this regard we can usefully refer to the judgment of Honble Supreme Court in the case of Union of India and Another Vs. International Trading Co and Another (2003 (5) SCC 437) wherein it is viewed that the administrative policy, except where the same is inconsistent with the express or implied provisions of a statute, which creates the power to which the policy relates or where a decision made in purported exercise of power is such that a repository of the power acting reasonably and in good faith could not have been made, cannot be interfered. Paras 17 to 22 of the said judgment read as under:-
17. The Courts as observed in G.B. Mahajan v. Jalgaon Municipal Council (AIR 1991 SC 1153) are kept out of lush field of administrative policy except where policy is inconsistent with the express or implied provision of a statute which creates the power to which the policy relates or where a decision made in purported exercise of power is such that a repository of the power acting reasonably and in good faith could not have made it. But there has to be a word of caution. Something overwhelming must appear before the Court will intervene. That is and ought to be a difficult onus for an applicant to discharge. The courts are not very good at formulating or evaluating policy. Sometimes when the Courts have intervened on policy grounds the Court's view of the range of policies open under the statute or of what is unreasonable policy has not got public acceptance. On the contrary, curial views of policy have been subjected to stringent criticism.
18. As Professor Wade points out (in Administrative Law by H.W.R. Wade, 6th Edition) there is ample room within the legal boundaries for radical differences of opinion in which neither side is unreasonable. The reasonableness in administrative law must, therefore, distinguish between proper course and improper abuse of power. Nor is the test Court's own standard of reasonableness as it might conceive it is a given situation. The point to note is that the thing is not unreasonable in the legal sense merely because the Court thinks it to be unwise.
19. In Union of India v. Hindustan Development Corporation (AIR 1994 SC 988), it was observed that decision taken by the authority must be found to be arbitrary, unreasonable and not taken in public interest where the doctrine of legitimate expectation can be applied. If it is a question of policy, even by ways of change of old policy, the Courts cannot intervene with the decision. In a given case whether there are such facts and circumstances giving rise to legitimate expectation, would primarily be a question of fact.
20. As was observed in Punjab Communications Ltd. v. Union of India and ors. (AIR 1999 SC 1801), the change in policy can defeat a substantive legitimate expectation if it can be justified on "Wednesbury reasonableness". The decision maker has the choice in the balancing of the pros and cons relevant to the change in policy. It is, therefore, clear that the choice of policy is for the decision maker and not the Court. The legitimate substantive expectation merely permits the Court to find out if the change of policy which is the cause for defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made. A claim based on merely legitimate extension without anything more cannot ipso facto give a right. Its uniqueness lies in the fact that it covers the entire span of time : present, past and future. How significant is the statement that today is tomorrows' yesterday. The present is as we experience it, the past is a present memory and future is a present expectation. For legal purposes, expectation is not same anticipation. Legitimacy of an expectation can be inferred only if it is founded on the sanction of law.
21. As observed in Attorney General for New Southwale v. Quin (1990(64) Australian LJR 327) `to strike the exercise of administrative power solely on the ground of avoiding the disappointment of the legitimate expectations of an individual would be to set the courts adrift on a featureless sea of pragmatism. Moreover, the negotiation of a legitimate expectation (falling short of a legal right) is too nebulous to form a basis for invalidating the exercise of a power when its exercise otherwise accords with law; `If a denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary, discriminatory, unfair or biased gross abuse of power or violation of principles of natural justice, the same can be questioned on the well-known grounds attracting Article 14 but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles. It can be one of the grounds to consider, but the court must lift the veil and see whether the decision is violative of these principles warranting interference. It depends very much on the facts and the recognized general principles of administrative law applicable to such facts and the concept of legitimate expectation which is the latest recruit to a long list of concepts fashioned by the courts for the review of administrative action must be restricted to the general legal limitations applicable and binding the manner of the future exercise of administrative power in a particular case. It follows that the concept of legitimate expectation is "not the key which unlocks the treasure of natural justice and it ought not to unlock the gates which shuts the court out of review on the merits', particularly, when the element of speculation and uncertainty is inherent in that very concept. As cautioned in Attorney General for New Southwale's case the Court should restrain themselves and respect such claims duly to the legal limitations. It is a well-meant caution. Otherwise, a resourceful litigant having vested interest in contract, licences, etc. can successfully indulge in getting welfare activities mandated by directing principles thwarted to further his own interest. The caution, particularly in the changing scenario becomes all the more important.
22. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities and adopt trade policies. As noted above, the ultimate test is whether on the touchstone of reasonableness the policy decision comes out unscathed.
Also in the case of P.U.Joshi and Ors Vs. Accountant General, Ahmedabad and Others ( 2003) 2 SCC 632, Honble Supreme Court observed as under:-
10. We have carefully considered the sub-missions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/substruction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/ posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service.
21. So far as the plea of applicant for retrospective application of OM dated 10.04.2008 is concerned, as can be seen from the rules of CSE-2008, the cadre allotment of candidate appointed to IAS/IPS/IFS is governed by the policy of cadre allotment in force at the time of allotment of his cadre. Allotment of cadre is made on declaration of result of the examination. In the present case, admittedly the result of the examination was declared on 4.12.2009 while the impugned cadre allocation policy was issued on 10.04.2008. Thus, the plea of applicant that OM dated 10.04.2008 is applied retrospectively is misconceived and devoid of merit. Moreover, in letter dated 21.02.2008 circulated by Govt. of India, Ministry of Personnel, Public Grievances & Pensions (Department of Personnel and Training) fairly indicated that the cadre allocation policy proposed to be revised was to be made applicable to candidates selected on the basis of Indian Forest Service Examination-2008. Para 3 of said order reads as under:-
3.It is also requested that requirement of the Indian Administrative Service Officers to be recruited on the basis of the Civil Services Examination, 2008 ( 2009 batch) may be kindly sent to this department latest by 10th March, 2008. Similarly, requirement of the Indian Police Service Officers to be recruited on the basis of the Civil Services Examiantion-2008 and the Indian Forest Services Officers to be recruited on the basis of the Indian Forest Service Examination-2008 may also be kindly sent to the Ministry of Home Affairs and the Ministry of Environment and Forest respectively latest by 10th March, 2008. This is required for determination of vacancies under the revised policy. In view of the aforementioned, the challenge made by applicant to OM dated 10.04.2008 on the ground that the same is applied retrospectively is rejected.
22. The applicant has next contended that OM dated 10.04.2008 has taken away his vested right for being allocated to his home cadre. Such plea of applicant is noted only to be rejected for the reason that in the case of UOI and Ors Vs. Rajiv Yadav IAS and Ors, Honble Supreme Court categorically ruled that when a person is appointed to AIS having various State Cadres, he has no right to claim allocation to a State of his choice or his home State and the Central Government is under no legal obligation to have options or preference from the officer concerned. Para 5 of the said judgment reads as under:-
We have given our thoughtful consideration to the reasoning and the conclusions reached by the Tribunal. We are not inclined to agree with the same. Rule 5 of the Cadre Rules provide that the allocation of the members of the IAS to various cadres shall be made by the Central Government in consultation with the State Government or the State Governments concerned. Sub-rule (2) of Rule 5 further provides that a cadre officer can be transferred from one cadre to another. When a person is appointed to an All India Service, having various State Cadres, he has no right to claim allocation to a State of his choice or to his home State. The Central Government is under no legal obligation to have options or even preferences from the officer concerned. Rule 5 of the Cadre Rules makes the Central Government the sole authority to allocate the members of the service to various cadres. It is not obligatory for the Central Government to frame rules / regulations or otherwise notify "the principles of allocation" adopted by the Government as a policy. The letter dated May 31, 1985 shows that the Central Government has always been having guidelines either in the shape of "limited Zonal preferences system" or "Roster System" for the exercise of its discretion under Rule 5 of the Cadre Rules. Simply because the principles of allocation called "Roster System" were not notified, it is no ground to hold that the same are non est and the Central Government cannot follow the same. In any case the "Roster System" has stood the test of time. It was operative during the years 1966 to 1977 and again it is being followed from 1985-batch onwards. The fact that the "Roster System" is being followed in practice by the Central Government for all these years is in itself a sufficient publication of its principles. It is also contended by applicant that impugned OM was issued without consultation with the State Government which is violative of Rule 5 (1) of IAS (Cadre) Rules. In terms of Rule 5 (1) of Indian Administrative Service (Cadre) Rules, 1954, the allocation of cadre to officers should be made by Central Government in consultation with the State Government or the State Government concerned. Further in terms of said rules, the Central Government may consult with the State Government concerned and transfer a cadre officer from one cadre to another. For easy reference, Rule 5 is extracted hereinbelow:-
5. Allocation of members to various Cadres:- (1) The allocation of cadre officers to the various cadres shall be made by the Central Government in consultation with the State Government concerned. It is seen from letter dated 21.2.2008 (Annexure F) that the Govt. of India has revised the cadre allocation policy for AIS (Indian Administrative Service, Indian Police Service and Indian Forest Service) which was to be made effective to Indian Civil Service Examination 2008/Indian Forest Service Exzamination-2008. It was circulated to Chief Secretaries of all State Governments and Joint Secretaries UT), Ministry of Home Affairs, North Block, New Delhi for comments of State Government, if any, which was required to be sent to DOP&T urgently and not later than 5.03.2008. It was only after 5.03.2008 that OM dated 10.04.2008 was issued. Thus apparently the State Government was consulted before issuance of revised cadre allocation policy. We do not find any force in the contention of applicant that OM dated 10.04.2008 was not issued in accordance with Rule 5 (1) of IAS (Cadre) Rules.
23. The applicant has last pleaded that the impugned order dated 13/05/6/2010 (Annexure B) is not speaking and is in violation of principles of natural justice and fair play. In support of said contention, learned counsel for applicant has relied upon the judgment of Honble Supreme Court in Sahara India (Firm), Lucknow Vs. Commissioner of Income, Central-1 and Another ( 2008) 14 SCC 151) and submitted that even an administrative order or decision involving civil consequences, has to be in consonance with the rules of natural justice. Paras 17 to 19 of said judgment read as under:-
17. Initially, it was the general view that the rules of natural justice would apply only to judicial or quasi-judicial proceedings and not to an administrative action. However, in State of Orissa Vs. Binapani Dei & Ors. , the distinction between quasi-judicial and administrative decisions was perceptively mitigated and it was held that even an administrative order or decision in matters involving civil consequences, has to be made consistently with the rules of natural justice. Since then the concept of natural justice has made great strides and is invariably read into administrative actions involving civil consequences, unless the statute, conferring power, excludes its application by express language.
18. Recently, in Canara Bank Vs. V.K. Awasthy , the concept, scope, history of development and significance of principles of natural justice have been discussed in extenso, with reference to earlier cases on the subject. Inter alia, observing that the principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi- judicial and administrative authority while making an order affecting those rights, the Court said :
"Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the frame- work of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. Expression 'civil consequences' encompasses infraction of not merely property or personal rights but of civil 'liberties, material deprivations, and non- pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life."
19. Thus, it is trite that unless a statutory provision either specifically or by necessary implication excludes the application of principles of natural justice, because in that event the Court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of a statute, particularly when the order has adverse civil consequences for the party affected. The principle will hold good irrespective of whether the power conferred on a statutory body or tribunal is administrative or quasi-judicial. Also in Oryx Fishers Private Limited Vs. UOI & Ors ( 2010)13 SCC 427), Honble Supreme Court ruled that the requirement to record reason emanates from the broad doctrine of fairness in decision making and the said requirement is now virtually a component of human right and was considered part of Strasbourg Jurisprudence. Para 40 of the judgment reads as under:-
40. In M/s Kranti Associates (supra), this Court after considering various judgments formulated certain principles in para 51 of the judgment which are set out below:
(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.
(b) A quasi-judicial authority must record reasons in support of its conclusions.
(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.
(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.
(e) Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.
(f) Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.
(g) Reasons facilitate the process of judicial review by superior Courts.
(h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice.
(i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.
(j) Insistence on reason is a requirement for both judicial accountability and transparency.
(k) If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.
(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or `rubber-stamp reasons' is not to be equated with a valid decision making process.
(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737).
(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".
(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process".
24. In view of the aforementioned, and being bound by the law laid down by Honble Supreme Court, we are of the view that once the applicant has a certain grievance, the same needs to be dealt with by respondents with due regard to the principles of natural justice, i.e., by recording reasons in support of the view taken on the points raised by applicant to highlight his grievance. In the over all facts and circumstances of the present case, though we are not inclined to grant the relief prayed by applicant in the OA, we expect the respondents to dispose of the representation of the applicant by an order that deals with the points raised in his representation dated 17.05.2010.
The OA is disposed of as above, with no order as to costs.
( A.K.Bhardwaj) ( Shailendra Pandey ) Member (J) Member (A) sk