Central Administrative Tribunal - Hyderabad
Ratnaker Jauhari, Ifs vs M/O Environment And Forests on 16 March, 2022
1
OA.No.215/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH, HYDERABAD
ORIGINAL APPLICATION NO.021/00215/2016
HYDERABAD, this the 16th day of March, 2022.
CORAM:
HON'BLE MR. ASHISH KALIA, JUDL. MEMBER
HON'BLE MR. B.V. SUDHAKAR, ADMN. MEMBER
Ratnaker Jauhari, IFS
S/o Late Sri K.S.Jauhari, Aged: about 46 years
Occ: Chief Conservator of Forests
Presently working as Chief Executive Officer
E Governance Authority, Information Technology, Electronics and
Communication Department, North H Block, Room No.405
Andhra Pradesh Secretariat, Hyderabad-500 022.
.....Applicant
(By Advocate Shri J.Sudheer)
Vs.
1. Union of India, Representedby Secretary
Government of India, Ministry of Personnel, P.G. and Pensions
Department of Personnel and Training (DoPT)
3rd Block, Lok Nayak Bhavan, Khan Market, New Delhi.
2. Union of India
Ministry of Environment, Forests and Climate Change
Represented by its Secretary, Government of India, New Delhi.
3. State of Andhra Pradesh
Represented by its Chief Secretary
General Administration Department, A.P.Secretariat, Hyderabad.
4. State of Telangana, Represented by its Chief Secretary
General Administration Department
Telangana Secretariat, Hyderabad. ....Respondents
(By Advocates Smt.K.Rajitha, Sr. PC for CG, Sri P.Ravinder Reddy, SC for
Telangana & Sri M.Bal Raj, SC for A.P.)
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OA.No.215/2016
ORAL ORDER
PER: HON'BLE MR. B.V.SUDHAKAR, ADMINISTRATIVE MEMBER
2. The OA is filed being aggrieved by the notification dated 05.03.2015 allocating the applicant to the State of Andhra Pradesh instead of being allocated to the State of Telangana.
3. The brief facts of the case are that the applicant belongs to the Indian Forest Service 1994 batch. He is a direct recruitee belonging to the OC/UR category. The applicant was allocated, as per Indian Forest Service Cadre Rules, to the erstwhile composite State of Andhra Pradesh based on merit. After getting various promotions, the applicant was finally promoted as Chief Conservator of Forests in 2014.While the matters stood thus, Andhra Pradesh(AP) Reorganization Act 2014 came into effect with effect from 02.06.2014. The Central Government under Section 80(i) of the said Act has been empowered to establish an Advisory Committee to assist it in discharging of any of its functions and also to ensure fair and equitable treatment to all persons affected by the provisions of the Act and further to assist in the matter of proper consideration of any representations made by such persons. Section 76 of the Act describes about the three All India Service Cadres and their provisional strength. The composition of officers to both the state cadres shall be determined by the Central Government. The provisions of Section 76(v) shall not affect the operations of All India Services Act 1951 or the Rules made thereunder. The Central Government under Section 80(i) of the Act had constituted a committee headed by Sri Pratyush Sinha on 28.03.2015. The Committee is expected to make suitable recommendations with regard to all the three All India Services on the basis of the objective and transparent principles.
3 OA.No.215/2016The Committee has to seek views under representation from the stakeholders and thereafter issue the allotment orders to the individual officers. The terms and conditions enumerated by the Central Government are to be in tune with the Act, so that the Central Government can act fairly and equitably.The respondents in allocating officers have not adopted the transparent procedure as required under AP Reorganisation Act and therefore, the applicant was allotted irregularly to the State of Andhra Pradesh. Aggrieved with the same, the OA is filed.
4. The contentions of the applicant are that Section 76(v) was incorporated to see that no cadre officer should feel that his original allocation under the cadre Rules was disturbed and violated. The role of the advisory committee was to assist the Central Government so that the Central Government can ensure fair and equitable treatment to all the persons affected and also that as and when a representation is made, it shall be considered properly. Further when it came to other services/state services under Section 77 of the Act, options were called from the employees but the same was not available for All India Service Officers under Section 76. The Advisory Committee is expected to recommend the objective and transparent criteria for the distribution of personnel of all the three All India Services after the bifurcation of cadre strength. The expression used with regard to distribution of personnel is objective and transparent meaning thereby just the way there shall be transparency in the matter of distribution of cadre strength, there shall be not only objectivity but also transparency in the matter of distribution of personnel belonging to All India Services, meaning thereby the guidelines and principles not only with regard to 4 OA.No.215/2016 the distribution of cadre strength but also with regard to distribution of personnel, shall be kept in website and call for the objections and views. The expression used in the act that fair and equitable distribution and proper consideration of the representations read with the terms and conditions which categorically say that objective and transparent would show that the whole process should be above board and no one should be allocated with a feeling that there was no transparency nor objectivity nor equitability. The approach of the Central Government initially was in tune with the act but later the whole process got deteriorated and there was neither transparency nor objectivity.
There were no deliberations with the cadre officers/stakeholders and steps have been taken unilaterally. In so far as the state services are concerned, a separate committee was constituted called Kamalanathan Committee and it is curious to note that Kamalanathan Committee came up with draft guidelines which were approved by the Central Government and was adopted for distribution of the personnel of the State Services. It is un-understandable as to why similar treatment was not meted out to All India Service Officers. The Pratyush Sinha committee did not notify draft guidelines and did not call for objections and views of the officers. The requirement of the law is that there has to be a fair and equitable distribution. The allotment was done behind the back of the officers. Along with the approved guidelines dated 22.08.2014, the allocation of IFS officers was done tentatively to the newly formed states which is incorrect.
The Chief Secretary of Government of Andhra Pradesh was a Member of the Committee and incidentally Sri P.K.Mohanty, IAS was the then Chief Secretary who had direct interest in the process of allocation in as much as it is reliably learnt that his daughter and son-in-law are the cadre officers in the composite 5 OA.No.215/2016 State of Andhra Pradesh. Further Sri I.V.R.Krishna Rao, IAS for residuary State of Andhra Pradesh and Sri Rajiv Sharma, IAS for the State of Telangana were appointed as Chief Secretaries respectively and both of them who have direct interest in the matter were made Members of the Committee which is irregular.
The applicant opted for Telangana. As per the guidelines dated 22.08.2014, the All India Services officers are broadly bifurcated into three categories i.e., direct recruitee(DR) insider, direct recruitee outsider and promotes (Promotion quota). Againout of the above three categories except promotes, the remaining two categories were sub-divided into four categories based upon their community status i.e. UR, OBC, SC and ST. In as much as there is no reservation in promotions, they have not sub-divided the promotee quota. The applicant is a direct recruitee-UR-outsider. The process of bifurcation starts with calculation of roster size and roster point which has been enumerated in the said guidelines. Para-7 of the guidelines is dealt with the promotion quota and DR insiders. The swapping procedure was permitted if the two officers falling in the same roster opt to shift to other State and if there are more number of options, the senior should be given preference. In short the swapping is allowed for promotion quota and Direct Recruitee insider within one's roster.
Para 8 of the guidelines would deal with Direct Recruitee - outsider and strangely as per para 8 (iv) such swapping, though allowed for DR outsider, is permitted not within roster but within the batch. Further, under para 8(v), the committee and Central Government recognized that in the categories falling under SC/ST and OBC officers, the officers would be very few in a batch and that in order to facilitate the greater choice to them i.e. for SC, ST, OBC, they need not be grouped batch wise and swapping would be done based on the 6 OA.No.215/2016 roster block. In other words, there is discrimination between promote quota/direct recruitment insider on one hand and direct recruitee outsider UR on the other hand. It is un-understandable as to why only for direct recruitee outsider URs' group the swapping was confined to batch when the same is not the case with the promotion quota/DR insider and others in DR outsider. Hence, it is in violation of Article 14 of the Constitution. In so far as DR-outsider, OBC, SC, ST are concerned, they are also permitted for swapping on roster basis similar to that of promotion quota or DR insider. When DR outsiders form into one group, excluding only the applicant's group i.e. DR outsider-UR and confining them to batch wise swapping and allowing all other categories DR-
outsiders i.e. BC,SC, ST categories for roster wise swapping is absolutely illegal, arbitrary and unconstitutional and amounts to hostile discrimination.
The very reasoning given for allowing SC, ST, OBC of DR outsiders to swap within the roster is that there would be very few of their batch. There is a total lack of application of mind in allocation of the officers as per the Act. The analogy as applied for SC, ST, OBC direct recruitee outsider equally applied to many batches of their counterparts in UR category. There are many single officers in UR outsider DR batches in all the three All India Services. In categories other than DR outsider UR there are many cases of swaps between officers of different batches as they are in same roster block, for example, Sl.No.5 of 1993 batch is swapped with Sl.No.24 of 2003 batch in the promote officers category of IAS of Telangana-(in both tentative allocation lists-dated 22.8.14 and 10.10.14), Sl.No.1 of IAS of 1979 batch has been swapped with Sl.No.2 IAS of 2005 batch in DR insider (ST) category of IAS-AP (in list dated 22.8.14) and Sl.No.7 of 1996 batch has been swapped with Sl.No.9 of 2003 7 OA.No.215/2016 batch in DR insider (SC) category of IAS-AP (in list dated 22.8.14) and so on.
Similar such examples can be cited in regard to IPS officers. Similarly in Indian Forest Service swapping is done across batches as follows: UR DR Insiders-AP Sl.No.8(1983 batch) swapped with Sl.No.9(1985 batch). In DR outsiders SC Sl.No.3(1985 batch) swapped with Sl.No.4(1991 batch) and so on. It is stated that from 1994 onwards there are comparatively quite less number of officers in IAS/IPS and IFS. In such cases taking swapping in the batch only, the chance of swapping of those officers who are single in their batch is totally lost and this defeats the very purpose of broad basing the swapping and the principle of equal opportunity in the case of officers in a batch of UR outsiders. The applicant is in roster block no.18 and serial no.40 in the UR outsiders of IFS.
Next to the applicant in the same block at serial no.41 is Sri Rahul Pandey of 1997 batch in both lists. The applicant gave preference for Telangana, but his roster was coming at AP and was shown allotted to AP. In case of Sri Rahul Pandey, he gave preference AP but his roster point came at Telangana and he was shown allotted to Telangana. Applicant is single officer in his batch in UR Outsider. In fact after his batch (1994) next officer Rahul Pandey is only 1997 batch and he is also a single officer in his batch in UR Outsider. The applicant and Sri Rahul Pandey are only two officers in this roster block. There is every sense to club them for swapping in the same block. Putting the condition of batch instead of block, the applicant was denied the option of swapping with a willing candidate in the same block, while swapping was extended to many of the other officers even extending outside block even in category of applicant (UR outsiders DR) in the AllIndia Services. The applicant represented on 27.8.2014 and 24.10.2014 that for officers in UR category who are single in 8 OA.No.215/2016 their batch, swapping has to be done as has been done in the case of outsider OBC, SC, ST and all categories of insiders. Not giving this will lead to loss of equal opportunity for him. It may give rise to an apprehension that since batch wise swapping was allowed for the outsiders-UR category, simultaneous Roster Block wise swapping will change the Batch wise swapping (already allowed in the guidelines) and therefore cannot be permitted. This fact has been checked and it is verified that simultaneous Batch wise swapping and Roster block wise swapping is possible in outsiders UR category, provided swapping within the Roster Blocks are restricted to officers who are single in their batch in the outsiders UR category. It will not affect the already allotted swapping on the basis of batch in the UR outsider category. There will be no change in the published tentative allocation for IAS and IPS officers in this category and there will be 4 changes for IFoS officers, as these 4 officers will get the cadre of their choice. First of all not giving opportunity on par with other categories is itself is a grave injustice. Most of the affected persons were juniors in Indian Forest Service. The committee altered its lists many times to benefit select people but in spite of the applicant requesting and mentioning both in his representations and also in the personal hearing in Delhi, they failed to incorporate the guidelines which were actually genuine and actually should have been automatically incorporated by any standards of natural justice and fair play.
Because of large heartedness shown for other categories by Pratyush Sinha Committee/the Central Government, the batch mates of the applicant Dr.K.Gopinath, 1994 batch SC Outsider DR swapped with Vinay Kumar 1992 in both lists-dated 22.8.14 and 10.10.14 and Sri P.V.Chalpati Rao, 1994 batch swapped with Sri Y Babu Rao 1987 batch in SC RR Insider - in list dated 9 OA.No.215/2016 10.10.14. In fact the applicant has only two batch mates and both swapped, whereas the applicant's chance is completely shut by the very regulations in as much as the applicant can seek for swapping if only there is another person under the same category in 1994 batch. The applicant was intending to swap with Sri Rahul Pandey, a 1997 batch officer DR-Outsider-UR who falls in the same roster as the applicant. However, it is not permitted. Sri Rahul Pandey was also affected by the same injustice but somehow, he got the cadre of his choice.
The guidelines recommended by the Pratyush Sinha Committee are arbitrary and discriminatory and unconstitutional. There is no mention about the consideration of the applicant's representation and as to the reason why other representations were considered in making slight alterations/ modifications. The alterations were done to accommodate the chosen ones. There was no transparency and objectiveness in allocation process. The applicant was continuously shown to be allotted to the cadre of Andhra Pradesh in all the three allocation lists. The subsidiary allocation lists were issued to accommodate some IAS officers. When the swapping process was introduced, not even a single IPS/IFS officer is benefited from it. The committee is also saddled with bias in as much as the persons sitting in the Committee are either having indirect or direct connection. The Parliament has given an opportunity to the Central Government to rectify these mistakes and that is why the expression 'proper consideration' of the objections of the stakeholders was mentioned. In similar circumstances when the State of Bihar, Madya Pradesh and Uttar Pradesh were being bifurcated, Sri U.C.Agarwal Committee was constituted and as per the said Committee swapping was allowed for all the categories on 10 OA.No.215/2016 the same terms and conditions i.e. within the roster. Whereas the Pratyush Sinha Committee did not do the same.
5. The respondent No.2 has filed reply statement denying the averments made by the applicant. The Chief Secretaries of the two newly formed States and representatives of all the three cadre controlling authorities of the three respective All-India Services were made members of the Committee solely with the purpose of allowing all the stakeholders fair opportunity to put forward their views, concerns, suggestions and after-effects of distribution so that a transparent, fair, unbiased and administratively reasonable guidelines could be recommended for distribution of All India Service officers. The applicant belongs to 1994 batch of IFS officer and he has sought the State cadre of Telangana. Allocation of a cadre in a fair and equitable manner does not mean in a manner suitable to the desire of each individual. The suitability and fairness of distribution process must be tested on the anvil of the guideline devised by the independent Committee. The guidelines have been applied in a fair, transparent and uniform manner to each stakeholder, the application has never been arbitrary or biased. No deviation in the application of the guideline has been pointed out by the applicant. The applicant cited Article 14 of the Constitution and whereas respondents state that the Article 14 of the Constitution of India guarantees Right to Equality to every citizen but that equal protection of laws guaranteed by Article 14 does not mean that all laws must be general in character. The varying needs of different classes of persons often require separate treatment. In fact identical treatment in unequal circumstances would amount to inequality. Hence, a reasonable classification is permitted.
11 OA.No.215/2016Thus what Article 14 forbids is class-legislation but it does not forbid reasonable classification. It is a fact that all the IFS officers are identical in so far as service is concerned but there is reasonable classification among them, there are different classes/categories of people among them; thus a guideline framed by the Government that is applied uniformly to each stake holder in an uniform manner cannot be termed as arbitrary till this guidelines has been framed in a manner that thrives to achieve a fair result. All India Services Act, 1951 enacted by the Parliament of India is an Act to regulate the recruitment, and the conditions of service of persons appointed, to the All India Services common to the Union and the States, whereas, the concept of the All India Services find its place in the Article 312 of the Constitution. All India Services have been created in national interest and it is common to the Union and the States. A member of al All India Service, therefore, bears liability to serve either the Union or the States to which he is allocated. So long as, member of the service is allocated to a State in accordance with the principles which has been framed by the Department of Personnel & Training in larger public interest the applicant can have no grievance merely because the cadre to which he/she is allocated does not suit him/her or that the applicant wants to be allocated to his/her home State. The contention of the applicant that the provisions of the Andhra Pradesh Re-organization Act, 2014 cannot override and violate the provisions of the All India Service Act, 1951 and the rules made there under contradicts his own stand as the Act does not violate the provisions of the AIS Act 1951. The Act also enacted by the Parliament of India provides for the provisions of creation of separate cadres of all the All India Services (Section 76) and distribution of members of the All India Services between the 12 OA.No.215/2016 successor States, no service conditions and recruitment rules have been changed. Therefore, the contentions of the applicant are not correct. No statute or rule has been violated for allocation of the applicant to the Andhra Pradesh cadre. The applicant has failed to specify as to which action of the Committee of the Central Government was not in consonance with its mandate, the applicant has gone into an altogether different route and tried to compare his own set of principles with that of the guidelines of the Pratyush Sinha Committee which was applied to each stakeholder in an uniform manner.
6. Respondents No.3 and 4 have not filed their affidavits despite giving ample opportunities. The case pertains to the year 2016. The applicant has filed MA.No.627/2021 to expedite the matter. The said expedite petition is allowed and the matter is taken up for adjudication.
7. Heard learned counsels for both the parties and perused the pleadings placed on record. The applicant has also filed rejoinder. We have gone through the same closely.
8. The issue under dispute is about non-allocation of the applicant to the State of Telangana in the IFS cadre. The brief facts which are important in resolving the dispute are that the composite State of Andhra Pradesh has undergone bifurcation as per the AP Re-organization Act of 2014. Under the Act, the Advisory Committee headed by Sri Pratyush Sinha was formed. The Committee laid down certain guidelines and as per the guidelines, the allocation of the officers of All India Service officers has to be done. The applicant alleges that the guidelines have not been followed and that the allocation was on a 13 OA.No.215/2016 selective basis depending upon the chosen officers. The allocation has been done on three occasions and reasons for small changes done in the allocation are not understood. The very basis of creation of Advisory Committee having Sri P.K.Mohanty as a Member of the Committee vitiates the recommendations of the Committee since he has conflict of interest with his daughter and son-in-
law seeking allocation of a cadre among the two states. The constitution of committee is also questioned on the basis of the fact that Sri I.V.R.Krishna Rao and Sri Rajiv Sharma were Members of the Committee and they too have to be considered by the Committee for allocation of the cadres among the two States.
9. The applicant strongly affirms that as per Section 80 of the Act, there has to be equitable and fair distribution which is not followed in any of the allocations done by the respondents. Even the process of swapping was introduced to favour known IAS/IPS officers.Swapping was not available to the officers who form a single member roster block and therefore they have been put to disadvantage since there are no officers to swap. These genuine issues have not been considered by the Committee is his fervent claim.
10. The applicant has also pointed out that there are very many discrepancies raised in the OA about the allocation process which have not been duly responded to in the reply statement. The respondents stated that they have followed the guidelines and there has been a fair and equitable distribution.
They claim that the applicant has not made out of any specific contention as to which of the guidelines have not been followed. They assert that allocation cannot be done to suit the choice of the applicant.
14 OA.No.215/201611. We have dealt with the similar cases of allocation of IPS/IFS officers in a series of cases in OA.No.422/2016 & OA.No.1037/2019. We have observed in the said OAs that the very formation of the Advisory Committee is irregular and unconstitutional for reasons stated therein. Moreover, we did observe that the swapping process has not been fair and equitable. Besides the cases cited, we did come across violation in allocating officers to the two newly formed States in other OAs filed before this bench. Applicant has enclosed one such order of this Tribunal viz. OA.No.1241 of 2014 dated 29.03.2016 wherein the Tribunal has allowed the OA and granted the relief sought. The case of the present applicant is fully covered by the said judgment. However, we are extracting the relevant paras herein:
"40. Having considered the rival contentions and material on record, the issues that arise for our consideration by this Tribunal are:
(i) Whether the guidelines framed by the respondent No. 1 on the basis of Pratyush Sinha Committee are illegal, arbitrary and in violation of All India Services Act, 1971 and statutory guidelines and Rules made thereunder?
(ii) Whether inclusion of Dr. P.K. Mohanty, IAS (1979) in the Advisory Committee as a Member of the Committee vitiated its deliberations because two of the offices viz., Smt. Swetha Mohanty, IAS (2011) (Unreserved Outsider S. No. 73) and Sri Rajat K Saini, IAS (2007) (OBC Outsider S. No. 15) are his daughter and son-in-law respectively?
(iii) Whether the list prepared comprising of officers borne on the cadre of undivided State of Andhra Pradesh as on 01.06.2014 slated for distribution to the successor States is illegal, arbitrary on account of non-
inclusion of the name of Dr. P.K. Mohanty (who retired on 01.06.2014 i.e. one day prior to the appointed day)?
15 OA.No.215/2016(iv) Whether the effective date of retirement of Dr. P.K. Mohanty viz., 01.06.2014 amounts to non-working day as contended by the Respondents?
While answering the issues, we have carefully considered the submissions of both the parties and other material documents available on record.
41. Issue No.(i):
In the instant application, two fold reliefs are claimed by the applicant. Firstly, that the guidelines framed for allocation of officers borne on the cadre of united Andhra Pradesh State to that of the successors States are illegal and arbitrary and contrary to the statute and the rules governing the service conditions of the All India Service officers and ultra-vires the constitutional provisions; Secondly, assuming that the guidelines are valid, the entire allocation of the officers and the procedure followed is contrary to the guidelines and resultantly, the applicant was allotted to State of Andhra Pradesh and had the illegalities not been committed in the allotment, the applicant would have been allotted to the State of Telangana.
42. It can be seen from the guidelines dated 30.05.2014 issued by the 1st Respondent allowing the options for inter-se swapping made available to one set of officials and denied to another set by an irrational classification. An officer belonging to Unreserved category in direct recruitee or promotee quota can exercise the option of swapping with an officer belonging to the unreserved category of the same batch, whereas the officers belonging to the Reserved categories can swap with another officer belonging to his or her category/community within the roster block which encompassed more than one batch. The impugned guidelines do not conform to the criteria stipulated under Section 80(1)(b) of the Act since the guidelines failed to provide equitable, just and fair treatment to all the officers to be allotted to two successor States and that the classification brought out under the guidelines is arbitrary and the 16 OA.No.215/2016 classification is not founded on the intelligible differentia which distinguish the offices into two groups and the said differentia does not have any rational relation to the object sought to be achieved and there is no nexus between the basis of classification and the object sought to be achieved. We also found that the Union of India had framed guidelines pursuant to the recommendations of UC Agarwal Committee for undertaking the allocation of officers borne on the united Uttar Pradesh State to the successor States under the provisions of U.P. Re-organization Act, 2000, which did not make any classification for exercising the option of swap by the officers as is done in the instant case. The applicant belongs to 1989 batch being Direct Recruit Outsider Unreserved category and as can be seen from the entire material filed before this Tribunal that the applicant is the only officer belonging to the said batch (1989) in the said category and the grievance of the applicant is with regard to paras 8.4 & 8.5 of the guidelines, by virtue of which, he had no option to swap to other State since no other officer of 1989 batch is available in the said category.
Whereas, in the report of the UC Agarwal Committee constituted under the U.P.Reorganization Act, it is stated that in case there are more than one willing officers available for exchange in a roster block then the senior most willing officer of that roster block will be exchanged. So, admittedly, in U.C. Agarwal Committee recommendations, they allowed swapping within the roster block, whereas, in the present impugned guidelines, they restricted swapping within the same batch. The object underlying such classification as per the above guidelines is that since there may be very few SC, ST and OBC officers in a batch, in order to facilitate greater choice to them, no such a condition that both the officers should hail from same batch for swapping is prescribed. On the other hand, on a perusal of the material papers filed before this Tribunal, it is an undisputed fact that the applicant is the only officer belonging to Unreserved category of 1989 batch. Though after the tentative list was announced the applicant herein who is allotted to Andhra Pradesh state 17 OA.No.215/2016 and another officer namely Sri Rajat Bhargava of 1990 batch who is allotted to Telangana State and who are in the same roster block No. 19 submitted their representations for their mutual swap for transferring their respective allotments, but the same was rejected by the respondents on the basis of the above guidelines stating that the applicant and the said another officer do not belong to the same batch.
As per sub-para (vi) of para 18 supra, an officer picked up within the roster block for shifting to a state would have an option for exchange with willing officers within the roster block in descending order of seniority if necessary. "This would be adopted for all officers and all categories except UR category in direct recruit outsiders".
It is the case of the applicant that giving a wider choice to all others except UR outsider category by taking roster block as a unit and giving a comparative narrow choice by limiting choice to outsider UR category by limiting their swapping to the batch to which they belong to is apparently appears to be discriminatory, arbitrary and violative of Articles 14 and 16 of Constitution. On the face of it, this appears to be discriminatory. In fact, the U.C.Agarwal Committee had made no distinction and had treated all categories alike for swapping within their respective roster blocks. The question that arises is what were the grounds on which the members of the said Committee make such a distinction.
As per sub-para (vii) of para 18 supra, for UR category under direct recruit outsiders, swapping of officers on the basis of their willingness would be available within a batch rather than the roster block. As per sub-para (viii) of para 18 supra, after finalising the exercise as mentioned in para (i) to (vii) above, "a fresh window will also opened to all officers to opt for swapping with another officer within the same category and in the same grade pay as on 01.06.2014..........." On the face of it, the provision contained in sub-para-viii would appear to be as an afterthought apparently to make amendments to the 18 OA.No.215/2016 provisions contained in para-vii by opening a fresh window to all officers and for swapping to an officer within the same category and in the same grade pay as on 01.06.2014. It may be mentioned here that for swapping the window is available for all the officers other than Direct Recruit Unreserved Outsiders, whereas, as per para-viii it is enlarged to the same category of officers in the same grade pay. This window would have surely benefited the UR category of direct recruit outsiders as their scope of swapping which was very narrow restricting to their batch was widened to officers in the same grade pay. It is the case of the applicant that he has applied for swapping with Mr.Rajat Bhargava who like him was an UR direct recruit outsider, but as he belonged to a batch one year junior to him, as per sub-para (viii) of para 18 supra, swapping was not permitted. However, we do not have any information as per the fresh window which was opened as per sub-para-viii if the applicant and Mr.Rajat Bhargava were in the same grade then were they permitted to swap.
The respondents' justification for the principle has been indicated in para-18 sub-para-vi (supra), which reads as under:
vi. The outsider officers of various categories other than UR picked up within the roster block for shifting to a state had an option for exchange with willing officers within the roster block in descending order of seniority if necessary. This was adopted for all officers and all categories except UR category in direct recruit outsiders.
Since there were very few SC, ST and OBC officers in a batch, in order to facilitate greater choice to them, such officers need not be grouped batch-
wise but the allocation was done from the roster block which in the normal course would be spanning a few batches.
It is pertinent to point out here that the respondents have not given the relevant statistical data to substantiate their averment that the category of UR, DR outsiders in a batch was numerically larger than those belonging to SC, ST, OBC in the same batch. The applicant, on the 19 OA.No.215/2016 other hand, has given the statistical data in para-13(xi) of the OA. The relevant portion of which is cited below :
"................ The outsider unreserved list published on DoPT Website 10.10.2014 has total of 33 batches in all and out of the 33 batches 13 batches have only one unreserved outsider each. In fact in between 1977 and 2013 batches of the IAS, 4 batches don't have even a single unreserved outsider officer in the IAS. Thereby the guidelines of swap within a batch has unjustly deprived so many officers of even a theoretical opportunity of a swap that too changing the previous established guidelines of swap with a 'roster band' of UC Aggarwal Committee."
The applicant tellingly brings home the point as to how limiting swapping to those belonging to his category i.e. direct recruitment outsider were discriminated against by stating that if the same principle of roster band was made applicable to the category he belonged to, then he would have been able to swap his position with Mr.Rajat Bhargava who was in the same band at Sl.No.19. However, he could not do so as only officers belonging to SC, ST and OBC categories are given the further benefit of swapping within the roster band while direct recruit OC IAS officers are given such option limited to officers in the same batch.
43. It is also seen that though the guidelines issued by the Union of India pursuant to Agarwal Committee report was the subject matter of U.P. Reorganization Act, 2000 and the guidelines issued by the Union of India pursuant to Prathyush Sinha Committee is the subject matter of A.P. State Reorganization Act, 2014, both are approved and published by the 1st respondent alone and both are pertaining to the subject of allotment of officers of the erstwhile United States to the successor States and both are dealing with service conditions of AIS officers and it is surprising that without any basis and sanction of law, a classification is made dividing the officers of the same group into two groups i.e 20 OA.No.215/2016 Unreserved and Reserved categories for the purpose of exercising their option for mutual swapping of their positions for the purpose of allotment of officers to successor States wherein an unreasonable restriction is imposed curtailing the rights of Unreserved category officers in the matter of exercise of their option for mutual swapping by carving out such officers into a separate class/ group from the entire group of similarly situated officers which is certainly illegal, unconstitutional and violative of Articles 14 and 16 of the Constitution of India. Though the policy of reservation is mandate under the Constitution of India and is recognized and further the same was upheld by the Honble Courts including the Apex Court from time to time, it is needless to state that the policy of reservation is applicable in the matter of selection, employment and promotion and such policy or special protection cannot be applicable for the purpose of allocation of the officers pursuant to reorganization of States. Hence, we are in agreement with the contention of the learned Senior Counsel appearing for the applicant that the classification itself made in the guidelines is illegal and arbitrary.
44. The Hon'ble Supreme Court of India while deciding an issue in respect of classification held that so long as two employees are a part of the same cadre/rank, they cannot be treated differently either for the purpose of pay and allowances or other conditions of service including age of superannuation and observed as under:
(a) In Union of India and others vs. Atul Shukla and others, reported in (2014) 10 SCC 432, the Hon'ble Apex Court held as under:
"15. The seminal question that falls for our determination in the above backdrop is whether classification of Group Captains in the Indian Air Force for purposes of age of superannuation, is offensive to Article 14 of the Constitution?
16. A long line of decisions of this Court that have explained the meaning of equality guaranteed by Articles 14 and 16 of the Constitution and laid down tests for determining the constitutional 21 OA.No.215/2016 validity of a classification in a given case immediately assume importance. These pronouncements have by now authoritatively settled that Article 14 prohibits class legislation and not reasonable classification. Decisions starting with State of W.B. v. Anwar Ali Sarkar [AIR 1952 SC 75] down to the very recent pronouncement of this Court in Subramanian Swamy v. CBI (2014) 8 SCC 682 have extensively examined and elaborately explained that a classification passes the test of Article 14 only if (i) there is an intelligible differentia between those grouped together and others who are kept out of the group; and (ii) there exists a nexus between the differential and the object of the legislation.
17. Speaking for the Court, Das, J., in Anwar Ali case summed up the essence of what is permissible under Article 14 in the following words:
(AIR .93, para 54) "54. ...The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others, and (2) that differentia must have a rational relation to the object sought to be achieved by the Act. The differentia which is the basis of classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them".
18. The principle was reiterated in Ram Krishna Dalma v. S.R. Tandolkar (AIR 1958 SC 538) in the following passage:(AIR p. 539) "It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that 22 OA.No.215/2016 are grouped together from others left out of the group, and (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration."
19. In Lachhman Das v. State of Punjab [AIR 1963 SC 222] this Court while reiterating the test to be applied for examining the vires of an Act on the touchstone of Article 14 sounded a note of caution that overemphasis on the doctrine of classification may gradually and imperceptibly deprive the article of its glorious content. This Court observed: (AIR p. 240, para 50) "50. ......the doctrine of classification is only a subsidiary rule evolved by courts to give a practical content to the said doctrine. Overemphasis on the doctrine classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive the article of its glorious content. That process would inevitably end in substituting the doctrine of classification for the doctrine of equality : the fundamental right to equality before the law and equal protection of the laws may be replaced by the doctrine of classification."
20. The content and the sweep of Article 14 of the Constitution was once more examined in E.P. Royappa v. State of T.N. (1974)4 SCC 3, wherein this Court laid bare a new dimension of Article 14 and described its activist magnitude as a guarantee against arbitrariness. Speaking for the Court, P.N. Bhgawati, J. as His Lordship then was said: (SCC p. 38, para 85) "85. ......Article 16 embodies the fundamental guarantee that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Though enacted as a district and independent fundamental right because of its great importance as a principle ensuring equality of opportunity in public employment which is so vital to the building up of the new classless egalitarian society 23 OA.No.215/2016 envisaged in the Constitution. Article 16 is only an instance of the application of the concept of equality enshrined in Article 14. In other words, Article 14 is the genus while Article 16 is species. Article 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which, therefore, informs both Article 14 and 16 is equality and inhibition against discrimination. ...Equality is a dynamic concept with many aspects and dimensions and it cannot be 'cribbed, cabined and confined' within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguishable from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the are of permissible considerations, it would amount to mala fide exercise of power and that is hit by Articles 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice; in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16."
21. The dimensions of Article 14 were further enlarged by this Court in Maneka Gandhi v. Union of India [(1978) 1 SCC 248], wherein Bhagwati. J. once again speaking for the Court described the guarantee against arbitrariness as a great equalising principle, a founding faith of the Constitution, and a pillar on which rests securely the foundation of our democratic republic.
22. It is unnecessary to burden this judgment with reference to several indeed numerous other pronouncements that have reiterated 24 OA.No.215/2016 and followed the ratio of the decisions to which we have referred herein above for we would remain content with a reference to a recent Constitution Bench decision in Subramanian Swamy v. CBI [ (2014)8 SCC 682] wherein this Court was examining whether Section 6-a(1) of the PC Act, 1988 was constitutionally valid insofar as the same required approval of the Central Government to conduct any inquiry or investigation into any offence alleged to have been committed under the said Act where such allegations related to employees of the Central Government of the level of Joint Secretary and above and officers as are appointed by the Central Government in Corporations established by or under any Central Act, government companies, societies, etc. Speaking for the Court, Lodha, C.J. Observed: (SCC p. 730, para 68) "68. Can it be said that the classification is based on intelligible differentia when one set of bureaucrats of Joint Secretary level and above who are working with the Central Government are offered protection under Section 6-A while the same level of officers who are working in the States do not get protection though both classes of these officers are accused of an offence under the PC Act, 1988 and inquiry/investigation into such allegations is o be carried out. Our answer is in the negative. The provision in Section 6-A, thus, impedes tracking down the corrupt senior bureaucrats as without previous approval of the Central Government, CBI cannot even hold preliminary inquiry much less an investigation into the allegations. The protection in Section 6-A has propensity of shielding the corrupt. The object of Section 6-A, that senior public servants of the level of Joint Secretary and above who take policy decision must not be put to any harassment, sidetracks the fundamental objective of the PC Act, 1988 to deal with corruption and act against senior public servants. CBI is not able to proceed even to collect the material to unearth prima facie substance into the merits of allegations. Thus, the object of Section 6-A itself is discriminatory. That being the position, the discrimination cannot be justified on the ground that there is a reasonable classification because it has rational relation to the object sought to be achieved."
23. Time now to test the validity of the classification in the case at hand: in the light of the legal position enunciated in the decisions of 25 OA.No.215/2016 this Court juxtaposed with the rationale which the appellant Union of India has advanced to justify its action. As noticed earlier, there are in substance two main reasons which the appellant has advanced in support of the classification made by it:
23.1 The first and foremost is that the officer who get promoted to the rank of Group Captains on the basis of merit constitute a class different from the ones who do not make it to the next rank on that basis. That officers who fail to make the grade in merit selection on three occasions admissible to them are eventually promoted to the rank of Group Captains based on the length of their service does not, according to the appellant, make them equal to their colleagues who have stolen a march over them by reason of their superior merit.
23.2 The second and the only other ground called in aid of the classification is that Group Captains (Timescale) do not discharge the same functions as are discharged by Group Captains (Select). The deployability of Timescale Group Captains being limited, they can, according to the appellants, be classified as a different group or category even when in all other respects they are equal to the officers promoted on merit.
24. The Tribunal has rejected both the reasons aforementioned and, in our opinion, rightly so. Classification of employees based on the method of their recruitment has long since been declared impermissible by this Court. There can be no differential treatment between an employee directly recruited vis-a-vis another who is promoted. So long as the two employees are a part of the same cadre, they cannot be treated differentially either for purposes of pay and allowances or other conditions of service, including the age of superannuation. Take for instance, a directly recruited District Judge, vis-a-vis a promotee. There is no question of their age of superannuation being different only because one is a direct recruit while the other is a promotee. So also an IAS Officer recruited directly cannot for purposes of age of superannuation be classified differently from others who join the cadre by promotion from the State services.
The underlying principle is that so long as the officers are a part of the cadre, their birthmarks, based on how they joined the cadre is not relevant. They must be treated equal in all respects: salary, other benefits and the age of superannuation included.
26 OA.No.215/201625. In the case at hand, Group Captains constitute one rank and care. The distinction between a Group Captain (Select) and Group Captain (Timescale) is indicative only of the route by which they have risen to that rank. Both are promotees. One reaches the rank earlier because of merit than the other who takes a longer time to do so because he failed to make it in the three chances admissible to them. The Select Officers may in that sense be on a relative basis more meritorious than Time Scale Officers. But that is bound to happen in every cadre irrespective of whether the cadre comprises only directly recruited officers or only promotees or a mix of both. Inter se merit will always be different, with one officer placed above the other. But just because one is more meritorious than the other would not by itself justify a different treatment much less in the matter of age of superannuation.
26. xxxx
27. xxxx
28. xxxx
29. xxxx
30. xxxx
31. The principles stated in the above decisions lend considerable support to the view that classification of Group Captains (Select) and Group Captains (Timescale) in two groups for purposes of prescribing different retirement ages, is offensive to the provisions of Articles 14 and 16 of the Constitution of India. These appeals must, on that basis alone, fail and be dismissed, but, for the sake of a fuller treatment of the subject, we may as well examine whether the classification has any nexus with the object sought to be achieved by the government decision taken in the wake of the AVS Committee recommendations."
(b) The Hon'ble Supreme Court in its judgment in the case of Col. A.S. Iyer and others etc. Appellants v. V. Balasubramanyam and others reported in AIR 1980 SC 452 has held as under:
"45. Let us eye the issue from the egalitarian angle of Article 14 and
16. It is trite law that equals shall be treated as equals and, in its application to Public services, this simply means that once several persons have become members of one service they stand as equals 27 OA.No.215/2016 and cannot, thereafter, be invidiously differentiated for purposes of salary, seniority, promotion or otherwise based on the source of recruitment or other adventitious factor. Birth-marks of public servants are obliterated on entry into a common pool and our country does not believe in official casteism or blue blood as assuring preferential treatment in the future career. The basic assumption for the application of this principle is that the various members or groups of recruits have fused into or integrated as one common service. Merely because the sources of recruitment are different, there cannot be apartheidisation within the common service.
46. ....
47. The learned Attorney General also adopted the precedentially sanctified route of escape from the magnetic field of Articles 14 and 16, that if the two sources of entry never really flowed into a homogenised sangam but remained the Ganga and the Jamuna, no question of equality arose. A common pool where the plurality meets is a necessary postulate for the application of the equalist mandate. Here the army engineers, it is apparent from the rules essentially continue to be army men but wear pro tempore Survey apparel, to be doffed any time specified in the rules themselves. Resultantly, the military and civilian members remain immiscible layers save for some purposes. The condition of integration of men from the divergent sources being absent, rulings have held Article 16 is out of the way. Once it is agreed or found that at the entrance point the army engineers are justly given credit for the commissioned service which they carry with them. There is no further discrimination while in service on the score that they come from the corps of Engineer Officers. All that happens thereafter is merely a manifestation of initial advantage of credit for commissioned service. For this reason, we negative the case of discrimination.
57. Sri Govindan Nair, with assertive argument, gave us anxious moments when he pleaded for minimum justice to the civilian elements. He said that the impugned rules were so designed, or did so result in the working, that all civilians, recruit or promotee, who came in with equal expectations like his military analogue, would be so outwitted at all higher levels that promotions, even in long official careers would be hopes that sour into dupes and promises that 28 OA.No.215/2016 wither away as teasing illusions. In effect, even if not in intent, if a rule produces indefensible disparities, whatever the spacious reasons for engrafting service weightage for the army recruits, we may have had to diagnose the malady of such frustrating inequality. After all, civilian entrants are not expendable commodities, especially when considerable civil developmental undertakings sustain the size of the service. And their contentment through promotional avenue is a relevant factor. The Survey of India is not a civil service 'sold' to the military, stampeded by war psychosis. Nor dies the philosophy of Article 14 or Article 16 contemplate de jure classification and de facto classification in public services based on some meretricious or plausible differentiation. Constitutional legalistic can never down the fundamental theses that, as the thrust of Thomas's case (1976) 2 SCC 310 and the tail-piece of Triloki Nath Khosa's case (1974) 1 SCC 19 bring out, equality clauses in our constitutional ethic have an equalising message and egalitarian meaning which cannot be subverted by discovering classification between groups and perpetuating the inferior-superior complex by a neodoctrine. Judges may interpret, even make viable, but not whittle down or undo the essence of the Article. This tendency, in an elitist society with a diehard caste mentality, is a disservice to our founding faith, even if judicially sanctified. Subba Rao J. hit the nail on the head when he cautioned in Lachhman Das. v. State of Punjab (1963) 2 SCR 353 at p. 395:
The doctrine of classification is only a subsidiary rule evolved by courts to give a practical content to the said doctrine. Overemphasis on the doctrine of classification or an anxious and sustained attempt to discover some basic for classification may gradually and imperceptibly deprive the article of its glorious content. The process would inevitably and in substituting the doctrine of classification for the doctrine of equality; the fundamental right to equality before the law and the equal protection of the laws may be replaced by the doctrine of classification.
The quintessence of the constitutional code of equality is brought out also by Bose.J. In Bidi Supply Co. case 1956 SCR 267 at p. 280:
The truth is that it is impossible to be precise, for we are dealing with intangibles and though the results are clear it is impossible to pin the 29 OA.No.215/2016 thought down to any precise analysis, Article 14 sets out, to my mind, an attitude of mind, a way of life, rather than a precise rule of law. It embodies a general awareness in the consciousness of the people at large of something that exists and which is very real but which cannot be pinned down to any precise analysis of fact save to say in a given case that it falls this side of the line or that, and because of that decisions on the same point will vary as conditions vary, one conclusion in one part of the country and another somewhere else one decision today and another tomorrow when the basis of society has altered and the structure of current social thinking is different. It is not the law that alters but the changing conditions. @page-SC 469 of the times and Article 14 narrows down to a question of fact which must be determined by the highest Judges in the land as each case arises."
(c) Further, in the State of Jammu and Kashmir Vs. Shri Triloki Nath Khosa and others reported in (1974) 1 SCC 19, the Hon'ble Supreme Court has held under:.
40. If persons recruited from different sources are integrated into one class, they cannot thereafter be classified so as to permit in favour of some of them a preferential treatment in relation to others. That is the argument before us which, applied to be facts of the case, means in plain terms this: Direct recruits and promotees having been appointed as Assistant Engineers on equal terms, they constitute an integrated class and for purposes of promotion they cannot be classified on the basis of educational qualifications.
45. Thus, all that Roshan Lal's case lays down is that direct recruits and promotees lose their birth-marks on fusion into a common stream of service and they cannot thereafter be treated differently by reference to the consideration they were recruited from different sources. Their genetic blemishes disappear once they are integrated into a common class and cannot be revived so as to make equals unequals once again.
30 OA.No.215/201646. Roshan Lal's case is thus no authority for the proposition that if direct recruits and promotees are integrated into one class, they cannot be classified for purposes of promotion on a basis other than the one that they were drawn from different sources. In the instant case, classification rests fairly and squarely on the consideration of educational qualifications : Graduates alone shall go into the higher post, no matter whether they were appointed as Assistant Engineers directly or by promotion. The discrimination therefore is not in relation to the source of recruitment as in Roshan Lal's case.
47. It is relevant, though inconclusive, that the very Bench which decided Roshan Lal's case held about a fortnight later in Narsing Rao's case that higher educational qualifications are a relevant consideration for fixing a higher pay scale and therefore matriculate Tracers could be given a higher scale than non- matriculate Tracers, though their duties were identical. Logically, if persons recruited to a common cadre can be classified for purposes of pay on the basis of their educational qualifications, there could be no impediment in classifying them on the same basis for purposes of promotion. The ratio of Roshan Lal's case can at best be an impediment in favouring persons drawn from one source as against those drawn from another for the reason merely that they are drawn from different sources.
51. But we hope that this judgment will not be construed as a charter for making minute and microcosmic classifications. Excellence is, or ought to be, the goal of all good governments and excellence and equality are not friendly bed-fellows. A pragmatic approach has therefore to be adopted in order to harmonize the requirements of public services with the aspirations of public servants. But let us not evolve, through imperceptible extensions, a theory of classification which may subvert, perhaps submerge, the precious guarantee of equality. The eminent spirit of an ideal society is equality and so we must not be left to ask in wonderment: What after all is the operational residue of equality and equal opportunity?
31 OA.No.215/2016(d) The Hon'ble Supreme Court of India in Writ Petition Nos. 5939-41 of 1980 decided on 17.12.1982 in the case of D.S. Nakara and Ors. vs. Union of India reported in AIR 1983 SC 130 has held as under:
9. Is this class of pensioners further divisible for the purpose of 'entitlement' and 'payment' of pension into those who retired by certain date and those who retired after the date? If date of retirement can be accepted as a valid criterion for classification, on retirement each individual government servant would form a class by himself because the date of retirement of each is correlated to his birth date and on attaining a certain age he had to retire. It is only after the recommendations of the Third Central Pay Commission were accepted by the Government of India that the retirement dates have been specified to be 12 in number being last day of each month in which the birth date of the individual government servant happens to fall. In other words, all government servants who retire correlated to birth date on attaining the age of superannuation in a given month shall not retire on that date but shall retire on the last day of the month.
Now, if date of retirement is a valid criterion for classification, those who retire at the end of every month shall for a class by themselves. This is too microscopic a classification to be upheld for any valid purpose. Is it permissible or is it violative of Article 14?
10. The scope, content and meaning of Article 14 of the Constitution has been the subject matter of intensive examination by this Court in a catena of decisions. It would, therefore, be merely adding to the length of this judgment to recapitulate all those decisions and it is better to avoid that exercise save and except referring to the latest decision on the subject in Maneka Gandhi v. Union of India MANU/SC/0133/1978 : [1978] 2 SCR 621 from which the following observation may be extracted :
...what is the content and reach of the great equalising principle enunciated in this article? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all-32 OA.No.215/2016
embracing scope and meaning for, to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits..... Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence.
13. The other facet of Article 14 which must be remembered is that it eschews arbitrariness in any form. Article 14 has, therefore, not to be held identical with the doctrine of classification. As was noticed in Maneka Gandhi's case in the earliest stages of evolution of the Constitutional law, Article 14 came to be identified with the doctrine of classification because the view taken was that Article 14 forbids discrimination and there will be no discrimination where the classification making the differentia fulfils the aforementioned two conditions. However, in EP. Royappa v. State of Tamil Nadu MANU/SC/0380/1973: (1974)ILLJ172 SC, it was held that the basic principle which informs both Articles 14 and 16 is equality and inhibition against discrimination, this Court further observed as under:
From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is, therefore, violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment.
15. Affirming and explaining this view, the Constitution Bench in Ajay Hasia etc. v. Khalid Mujib Sehravardi and Ors etc. MANU/SC/0498/1980: (1981)ILLJ103SC held that it must, therefore, now be taken to be well settled that what Article 14 strikes at is arbitrariness because any action that is arbitrary must 33 OA.No.215/2016 necessarily involve negation of equality. The Court made it explicit that where an act is arbitrary it is implicit in it that it is un equal both according to political logic and constitutional law and is, therefore, violative of Article 14. After a review of large number of decisions bearing on the subject, in Air India etc. V. Nagesh Meerza and Ors. etc. MANU/SC/0688/1981 : (1981)IILLJ314SC the Court formulated propositions emerging from analysis and examination of earlier decisions. One such preposition held well established is that Article 14 is certainly attracted where equals are treated differently without any reasonable basis."
45. Keeping in view all the grounds taken by the applicant and after perusal of the material on record and the dictum laid down by the Hon'ble Supreme Court in the above referred cases, we hold that the guidelines framed by the 1st respondent on the basis of the recommendations of Pratush Sinha Committee are illegal, arbitrary and in violation of All India Services Act, 1971. Issue No.I is answered accordingly.
46. Issue No.(ii):
With regard to the issue No.ii, we have carefully considered the contentions of the applicant that the name of Dr. P.K. Mohanty was included as a Member in the Advisory Committee constituted under the Act to frame guidelines for allocation of AIS officers to the State of Andhra Pradesh and Telangana despite the fact that his daughter Smt. Swetha Mohanty, IAS and his son-in-law Mr. Rajat K. Saini are borne on the list slated for allocation. Though Dr. P.K. Mohanty was included as a Member in Pratyush Sinha Committee to frame guidelines for allocation of All India Service officers to the State Andhra Pradesh and Telangana in the capacity of the then Chief Secretary to the united State of Andhra Pradesh, but the authorities are well within the knowledge that Dr. P.K. Mohanty's daughter and son-in-law are both IAS officers in the united State of Andhra Pradesh and their names are slated in the list for allocation. Knowing fully well that the names of daughter and son-in-law of Dr. P.K. Mohanty figured in the list for allocation, the respondent 34 OA.No.215/2016 authorities included Dr. P.K. Mohanty, IAS as one of the Members of the Advisory Committee which is certainly contrary to law as there is every possibility to take a bias decision by Dr. P.K. Mohanty in framing guidelines with a view to help his daughter and son in law in getting allotment to State as per their choice.
The respondents and Mr.Mohanty did commit indiscretion and were circumvent in view of the fact that the terms of reference of the Committee of which Mr.Mohanty by virtue of his position i.e. the Chief Secretary of undivided A.P. was a member was to formulate guidelines for allocation of cadres to the members of the undivided A.P. who were in the gradation list of the IAS as on 01.06.2014 and Mr.Mohanty's daughter and son-in-law were in the list. Accordingly, the respondents ought not to have nominated Mr.Mohanty as the guidelines to be formulated would have been naturally applicable to his daughter and son-in-law. At the same time, Mr.Mohanty should have suo moto declined to become a member of the committee saying that he was not interested to be a party in view of the fact that his daughter and son-in-law belong to the undivided IAS cadre of A.P. and further that there would have been a conflict of interest as he would be a judge in his own cause. There are catena of judicial pronouncements upholding the time tested principles that one cannot be a judge in one's own cause and that like Caesar's wife a public servant should be beyond reproach and the justice should not only be done, but should also "appear to have been done". The person concerned has nothing to do with the proceedings in which he will be willy nilly involved in a conflict of interest. On the basis of the above, although there is nothing to prove that Mr.Mohanty's daughter and son- in-law got benefited from the guidelines which were manipulated in order to ensure that his daughter and son-in-law got what they wanted i.e. Telangana cadre, yet the unsavory fact cannot be wished away that as Mr.Mohanty was an interested party and there was a conflict of interest involved in his becoming a member of the committee and therefore the delicacy of the situation ought to have prompted Mr.Mohanty to have 35 OA.No.215/2016 refrained from becoming a member of the committee. To this extent we can say that why Mr.Mohanty being a member a shadow was cast on his neutrality in the matter and adversely effected.
To substantiate his contentions, learned Senior Counsel appearing for the applicant relied upon various judgments of the Apex Court and we have carefully gone through the same.
In the various judgments of the Hon'ble Apex Court, the Hon'ble Supreme Court held that the aim of the rules of natural justice is to secure justice or to put it negatively, to prevent miscarriage of justice and inclusion of a person in the decision taking authority where his family members participate would vitiate the decision and amounts to bias as there is reasonable likelihood of bias. Further, it has been reiterated that no one shall be a judge in his own cause (Nemo debet esse judex propria causa). In Manik Lal Vs. Dr. Prem Chand Singhvi, AIR 1957 SC 425, the Apex Court accepted the validity of the said principle and held that the principle applied not only to judges but to all Tribunals and Bodies which were given jurisdiction to determine the judicial rights of the parties. On the content of the principle, the Hon'ble Supreme Court pointed out the test was not whether in fact a "bias" has affected the judgment, but the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the Tribunal might have operated against him in the final decision of the Tribunal". Thus, rule has been asserted not only in the case of courts of justice and other judicial tribunals, but in the case of authorities which, though, in no sense, to be called courts, have to act as judges of the rights of others. The Hon'ble Supreme Court laid down that the actual proof of prejudice was not necessary. It is properly extended to all cases where an independent mind has to be applied to arrive at a fair decision between the rival claims of parties. Justice is not the function of the courts alone, it is the duty of all those who are expected to decide fairly between the contending parties.36 OA.No.215/2016
Bias has been classified into two categories. We are concerned here with personal bias. Personal bias may arise from personal hostilities to one party or from personal friendship or family relationship with the other. In the case family relationship, the challenge to the proceeding need only establish so close a degree of relationship as to give rise to the reasonable likelihood of the judge or the authority espousing the cause as his own. Closer relationship has invariably led to the invalidation of the proceedings. Dr. P.K. Mohanty was a Member of the Committee charged with the duty of framing guidelines and his daughter and son-in-law are included in the allotment list which is sufficiently close to bring the doctrine against bias into play. No doubt, Dr. P.K. Mohanty as a Member of the Committee was not sitting on his own cause, but the nearness of the relationship reasonably gives an impression to the other candidates that there was a real likelihood of Dr. P.K. Mohanty espousing the cause of his daughter and son-in- law as his own.
It is an admitted fact that the daughter and son-in-law of Dr. P.K. Mohanty were in the list of officers borne on the cadre as on 01.06.2014 slated for allotment to successor States and hence, there is every likelihood for believing that he must have been biased and taking into consideration the human probabilities and ordinary course of human conduct, the inescapable conclusion a reasonable man can arrive at including this Tribunal is that the presence of Dr. P.K. Mohanty as a Member of the Committee to consider cases of allotment of his kith and kin vis-a- vis other officers certainly caused bias in their favour.
Learned Senior Counsel appearing for the applicant relied upon the decisions of the Hon'ble Supreme Court and various High Courts wherein the courts decided the issue in respect of bias.
37 OA.No.215/2016(a) In WP [C] 3381/2002 in Commander and Ors. vs. Bhupendera Kardeam and Ors. decided on 12.11.2013, the Hon'ble High Court of Delhi has held as under:
"17. Given the background of the case and the allegations made therein, more specifically the constitution of the selection committee including the relatives of the candidates who have applied for appointment would highlight the manner in which the whole exercise was sought to be carried out. The exercise has not been fair, transparent and open. To set right such a selection, if the Tribunal has directed for a fresh consideration by a fresh selection committee we do not see any infirmity in such directions. This would also obviate any allegation of nepotism and bias. The Supreme Court in its opinion reported as MNU/SC/0427/1969 : (1969) 2 SCC 262 A.K. Kripak vs. Union of India & Ors. has held as under :
'The members of the selection board other than Naquishbund, each one of them separately, have filed affidavits in this Court swearing that Naquishbund in no manner influenced their decision in making the selections. In a group deliberation each member of the group is bound to influence the others, more so, if the member concerned is a person with special knowledge. Ms bias is likely to operate in a subtle manner. It is no wonder that the other members of the selection board are unaware of the extent to which his opinion influenced their conclusions. We are unable to accept the contention that that in adjudging the suitability of the candidates the members of the board did not have any mutual discussion. It is not as if the records spoke of themselves. We are unable to believe that the members of selection board functioned like computers. At this stage it may also be noted that at the time the selections were made, the members of the selection board other than Naquishbund were not likely to have known that Basu had appealed against his supersession and that his appeal was pending before the State Government. Therefore there was no occasion for them to distrust the opinion expressed by Naquishbund. Hence the board in making the selections must necessarily have given weight to the opinion expressed by Naquishbund.' 38 OA.No.215/2016
18. Further the Supreme Court in its opinion reported as MANU/SC/0026/1985: (1985) 4 SCC 417 Ashok Kumar Yadav and Ors. vs. State of Haryana and Ors. (connected matters) has held as under:
'We agree with the petitioners that it is one of the fundamental principles of our jurisprudence that no man can be Judge in his own cause and had if there is a reasonable likelihood of bias it is "in accordance with natural justice and common sense that the justice likely to be so biased should be incapacitated from sitting". The question is not whether the judge is actually biased or in fact decides partially, but whether there is a real likelihood of bias. What is objectionable in such a case is not that the decision is actually tainted with bias but that the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision. The basic principle underlying this rule is that justice must not only be done but must also appear to be done and this rule has received wide recognition in several decisions of this Court. It is also important to note that this rule is not confined to cases where judicial power stricto sensu is exercised. It is appropriately extended to all cases where an independent mind has to be applied to arrive at a fair and just decision between the rival claims of parties. Justice is not the function of the courts alone; it is also the duty of all those who are expected to decide fairly between contending parties. The strict standards applied to authorities exercising judicial power are being increasingly applied to administrative bodies, for it is vital to the maintenance of the rule of law in a welfare state where the jurisdiction of administrative bodies in increasing at a rapid pace that the instrumentalities of the State should discharge their functions in a fair and just manner. This was the basis on which the applicability of this rule was extended to the decision making process of a selection committee constituted for selecting officers to the Indian Forests Service in A.K. Kraipak v. Union of India. What happened in this case was that one Naquishbund, the acting Chef Conservator of Forests, Jammu and Kashmir was a member of the Selection Board which had been set up to select officers to the Indian Forest Service from those serving in the Forest Department of Jammu and Kashmir. Naquisbund who was a member of the Selection Board was also one of the candidates for selection to the Indian Forest Service. He did not sit on the 39 OA.No.215/2016 Selection Board at the time when his name was considered for selection but he did sit on the Selection Board and participated in the deliberations when the names of his rival officers were considered for selection and took part in the deliberations of the Selection Board while preparing the list of the selected candidates in order of preference. This Court held that the presence of Naquishbund vitiated the selection on the ground that there was reasonable likelihood of bias affecting the process of selection. Hegde, J. speaking on behalf of the Court countered the argument that Naquishbund did not take part in the deliberations of the Selection Board when his name was considered, by saying :
(SCCp.270, para 15) But then the very fact that he was a member of the Selection Board must have its own impact on the decision of the Selection Board. Further, admittedly, he participated in the deliberations of the Selection Board when the claims of his rivals... were considered. He was also party to the preparation of the list of selected candidates in order of preference. At every stage of his participation in the deliberation of the selection board, there was a conflict between his interest and duty..... The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased..... There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct.
This Court emphasised that it was not necessary to establish as but it was sufficient to invalidate the selection process if it could be shown that there was reasonable likelihood of bias. The likelihood of bias may arise on account of proprietary interest or on account of personal reasons, such as, hostility to one party or personal friendship or family relationship with the other. Where reasonable likelihood of bias is alleged on the ground of relationship, the question would always be as to how close is the degree of relationship or in other words, is the nearness of relationship so great as to give rise to reasonable apprehension of bias on the part of the authority making the selection."40 OA.No.215/2016
(b) In Civil Appeal No. 10026 of 1983, decided on 10.08.1984, in the case of J. Mohapatra and Co. and anr. vs. State of Orissa and Anr., reported in AIR 1984 SC 1572, the Hon'ble Supreme Court of India has held as under:
"10. It is, however, unnecessary to go further into this controversy for the real question in this Appeal is of far greater importance. That is the question of bias on the part of some of the members of the Assessment Sub-Committee. This question has been answered against the Appellants and forms the subject-matter of the third and fourth grounds on which the High Court rested its decision. Nemo judex in causa sua, that is, no man shall be a judge in his own cause, is a principle firmly established in law. Justice should not only be done but should manifestly be seen to be done. It is on this principle that the proceedings in courts of law are open to the public except in those cases where for special reason the law requires or authorises a hearing in camera. Justice can never be seen to be done if a man acts as a judge in his own cause or is himself interested in its outcome. This principle applies not only to judicial proceedings but also to quasi-judicial and administrative proceedings. The position in law has been succinctly stated in Halsbury's Laws of England, Fourth Edition, Volume 1, para 68, as follows :
Disqualification for financial interest - There is a presumption that any direct financial interest, however small, in the matter in dispute disqualifies a person from adjudicating. Membership of a company, association or other organisation which is financially interested may operate as a bar to adjudicating, as may a bare liability to costs where the decision itself will involve no pecuniary loss.
11. xxx
12. It hardly requires any argument to show that a person who has written a book which is submitted for selection, either by himself or by his publisher, is interested in the matter of selection. Authors get their books published by publishers or may themselves publish 41 OA.No.215/2016 them. In either case, they stand to benefit financially. In the first case, by getting royalty from publishers and in the second case, by making profits on the sale of books if the amount realised exceeds publication of the book. The Appellants have filed statements showing the financial benefit which accrued to those members of the Assessment Sub-Committee whose books were selected. To give one instance from these statements, in the case of a member of the Assessment Sub-Committee who was a Government official and whose books were selected, books of the aggregate value of Rs.4,000 were purchased in the year 1980, of the aggregate value of Rs. 6,500 in the year 1981, and of the aggregate value of Rs. 72,500 in the year 1982. It was contended in the counter affidavit filed on behalf of the Respondents that the amount of royalty received by these member-authors was not much. This fact is immaterial. The amount of royalty depends on the agreement between the author and the publisher as also upon the sale price of the book. The fact, however, remains that by the books being selected and purchased for distribution to school and college libraries the sales of those books had gone up and correspondingly the royalty received by the author-members also went up and such author- members thus received financial benefit. It is no answer to say that an author-member is only one of the members of the Assessment Sub- Committee and that the ultimate decision rests with the State Government which may reject any book out of the list of approved books. A similar argument was rejected by this Court in Kraipak's case. The State Government would normally be guided by the list approved by the Assessment Sub Committee. Further, to say that such author-member is only one of the members of the Assessment Sub-Committee is to overlook the fact that the author-member can subtly influence the minds of the other members against selecting books by other authors in preference to his own. It can also be that books by some of the other members may also have been submitted for selection and there can be between them a quid pro quo or, in other words, you see that my book is selected and in return I will do the same for you. In either case, when a book of an author-member comes up for consideration, the other members would feel themselves embarrassed in frankly discussing its merits. Such author-member may also be a person holding a high official position whom the other members may not want to displease. It can be that the other 42 OA.No.215/2016 members may not be influenced by the fact that the book which they are considering for approval was written by one of their members. Whether they were so influenced or not is, however, a matter impossible to determine. It is not, therefore, the actual bias in favour of the author-member that is material but the possibility of such bias. All these considerations require that an author- member should not be a member of any such committee or sub- committee.
13. There is, however, an exception to the above rule that no men shall be a judge in his own cause, namely, the doctrine of necessity. An adjudicator, who is subject to disqualification on the ground of bias or interest in the matter which he has to decide, may be required to adjudicate if there is no other person who is competent or authorised to adjudicate or if a quorum cannot be formed without him or if no other competent tribunal can be constituted. In such cases the principle of natural justice would have to give way to necessity for otherwise there would be no means of deciding the matter and the machinery of justice or administration would break down. Thus, in The Judges v. Attorney- General for Saskatchewan 53 TLR 464, the Judges of the Court of Appeal were held competent to decide the question whether Judges of the Court of Appeal, of the Court of King's Bench and of the District Courts of the Province of Saskatchewan were subject to taxation under the Income-tax Act, 1932, of Saskatchewan on the ground that they were bound to act ex necessitate. The doctrine of necessity applies not only to judicial matters but also to quasi- judicial and administrative matters. The High Court, however, wrongly applied this doctrine to the author-members of the Assessment Sub Committee. It is true, the members of this Sub- Committee were appointed by a Government Resolution and some of them were appointed by virtue of the official position they were holding, such as, the Secretary, Education Department of the Government of Orissa, and the Director Higher Education, etc. There was, however, nothing to prevent those whose books were submitted for selection from pointing out this fact to the State Government so that it could amend its Resolution by appointing a substitute or substitutes, as the case may be. There was equally nothing to prevent such nonofficial author-members from 43 OA.No.215/2016 resigning from the committee on the ground of their interest in the matter."
(c) Dimes -V- Proprietors of Grand Junction Canal and Others; HL 26 JUN 1852] July 2, 2015 DLS LEAVE A COMMENT References:(1852) 3 HL Cas 759, [1852] EngR 789, (1852) 3 HLC 759, (1852) 10 ER 301 Links: Commenlii Coram: Lord Brougham, Lord Campbell The Lord Chancellor, Lord Cottenham, owned a substantial shareholding in the defendant canal which was an incorporated body. He sat on appeal from the Vice-Chancellor, whose judgment in favour fo the company he affirmed. There was an appeal on the grounds that the Lord Chancellor was disqualified.
Held: After consultation, Lord Cottenham was disqualified from sitting as a judge in the cause because he had an interest in the suit. There was no inquiry by the court as to whether a reasonable man would consider Lord Cottenham to be biased and no inquiry as to the circumstances which led to Lord Cottenham sitting. Lord Campbell said: 'No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest he had in this concern: but, my Lords, it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest. Since I have had the honour to be Chief Justice of the Court of Queen's Bench, we have again and again set aside proceedings in inferior tribunals because an individual, who had an interest in a cause, took a part in the decision. And it will have a most salutary influence on these tribunals when it is known that this high Court of last resort in a case in which the Lord Chancellor of England had an interest, considered that his decree was on that account a decree not according to law, and was set aside. This will be a lesson to all inferior tribunals to take care not only that in their 44 OA.No.215/2016 decrees they are not influenced by their personal interest, but to avoid the appearance of labouring under such an influence."
(d) In Writ Petition Nos. 173 to 175 of 1967, decided on 29.04.1969, in A.K. Kraipak and Ors. vs. Union of India and Ors. [ AIR 1970 SC 150], the Hon'ble Supreme Court of India has held as under:
"15. It is unfortunate that Naquishbund was appointed as one of the members of the selection board. It is true that ordinarily the Chief Conservator of Forests in a State should be considered as the most appropriate person to be in the selection board. He must be expected to know his officers thoroughly, their weaknesses as well as their strength. His opinion as regards their suitability for selection to the All India Service is entitled to great weight. But then under the circumstances it was improper to have included Naquishbund as a member of the selection board. He was one of the persons to be considered for selection. It is against all canons of justice to make a man judge in his own cause. It is true that he did not participate in the deliberations of the committee when his name was considered. But then the very fact that he was a member of the selection board must have had its own impact on the decision of the selection board. Further admittedly he participated in the deliberations of the selection board when the claims of his rivals particularly that of Basu was considered. He was also party to the preparation of the list of selected candidates in order of preference. At every stage of this participation in the deliberations of the selection board there was a conflict between his interest and duty. Under those circumstances it is difficult to believe that he could have been impartial. The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased. We agree with the learned Attorney-General that a mere suspicion of bias is not sufficient. There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct. It was in the interest of Naquishbund to keep out his rivals in order to secure his position from further challenge. Naturally he was also interested in safeguarding his position while preparing the list of selected candidates.45 OA.No.215/2016
16. The members of the selection board other than Naquishbund, each one of them separately, have filed affidavits in this Court swearing that Naquishbund in no manner influenced their decision in making the selections. In a group deliberation each member of the group is bound to influence the others, more so, if the member concerned is a person with special knowledge. His bias is likely to operate in a subtle manner. It is no wonder that the other members of the selection board are unaware of the extent to which his opinion influenced their conclusions. We are unable to accept the contention that in adjudging the suitability of the candidates the members of the board did not have any mutual discussion. It is not as if the records spoke of themselves. We are unable to believe that the members of selection board functioned like computers. At this stage it may also be noted that at the time the selections were made, the members of the selection board other than Naquishbund were not likely to have known that Basu had appealed against his supersession and that his appeal was pending before the State Government. Therefore there was no occasion for them to distrust the opinion expressed by Naquishbund. Hence the board in making the selections must necessarily have given weight to the opinion expressed by Naquishbund.
xxx
21. It was next urged by the learned Attorney-General that the mere fact that one of the members of the Board was biased against some of the petitioners cannot vitiate the entire proceedings. In this connection he invited our attention to the decision of this Court in Summer Chand Jain vs. Union of India and Anr. Writ Petition No. 237/1966 decide on 4.5.1967. Therein the Court repelled the contention that the proceedings of a departmental promotion committee were vitiated as one of the members of that committee was favourably disposed towards one of the selected candidates. The question before the Court was whether the plea of mala fides was established. The Court came to the conclusion that on the material on record it was unable to uphold the plea. In that case there was no question of any conflict between duty and interest nor any members of the departmental promotion committee was a judge in his own case. The only thing 46 OA.No.215/2016 complained of was that one of the members of the promotion committee was favourably disposed towards one of the competitors. As mentioned earlier in this case we are essentially concerned with the question whether the decision taken by the board can be considered as having been taken fairly and justly."
In view of the above position, we hold that the inclusion of Dr. P.K. Mohanty, IAS(1979) in the Advisory Committee as a member vitiate its deliberations. The issue is answered accordingly.
47. Issue No. (iii) The main contention of the learned Senior Counsel appearing for the applicant that Dr. P.K. Mohanty was in service as on 01.06.2014 and had his name been included in the list as per the terms in the roster, the applicant could have certainly been allotted to the State of Telangana as per his choice. It is his further contention that the date of retirement of Dr. P.K. Mohanty i.e. 01.06.2014 shall be considered as working day for him and cannot be treated as non-working day as claimed by the respondents.
A bare perusal of the documents and material on record, it is a matter of record that Dr. Mohanty was given extension of service as per rules from 28.02.2014 AN for four months beyond 28.02.2014 i.e. upto 30.06.2014 vide G.O. Rt. No. 837, GA (Spl-A) Dept, dated 28.02.2014. He has attended office accordingly from 01.03.2014 onwards. Subsequent thereto, vide G.O.Rt. No. 1999, dated 12.05.2014, the Government of Andhra Pradesh permitted his voluntary retirement on 01.06.2014 AN. Thus, he has attended the office on 01.06.2014 and issued a number of government orders including G.O.Rt. No. 2339 dated 01.06.2014 for his relief w.e.f. 01.06.2014 AN. Thus, it can be seen that he was in service as on 01.06.2014 till 24 hours and as clearly laid down in the guidelines in clause No.3, his name should have been included in the list of officers slated for distribution between the successor States. Hence, it is an admitted position that Dr. P.K. Mohanty was well in 47 OA.No.215/2016 service as on 01.06.2014 and as per the guidelines, his name should have been included in the list of officers for allocation between the successor States. Admittedly, the respondents failed to include the name of Dr. P.K. Mohanty in the list for allocation between the two successor States by violating the guidelines. As per clause (4) of Section 76 of the A.P. Reorganization Act, 2014, the members of each of the All India Services borne on the Andhra Pradesh cadre immediately before the appointed day shall be allocated to the successor State cadres of the same service constituted under sub-section in such manner and with effect from such date or dates as the Central Government may, by order, specify. Admittedly, Dr.P.K. Mohanty retired from service w.e.f. 01.06.2014 AN, which means that he was in service as on 01.06.2014, which is the cut off date fixed by the Committee i.e. immediately before the appointed day. Since the appointed day is 02.06.2014, immediate one day prior means 01.06.2014 and all the officers of All India Service borne on the Andhra Pradesh cadre shall be allocated to the successor States cadres of the same service.
Though the respondents contended that the ultimate objective of allocating the officers borne on the cadre of undivided on the eve of the birth of coming into existence was to enable the officers to serve in one of the states and as the services of Dr. P.K. Mohanty were not available on the appointed day i.e. 02.06.2014, the very object of allocating him to a particular cadre would have been mere paper work as he would have retired at the midnight of 01.06.2014 when the two states came into existence, in view of the facts of the case, we are unable to accept the said contention of the respondents.
In view of the sub-section (4) of Section 76 of the Act, the respondents should have included the name of Dr. P.K. Mohanty in the said list for allocation. But, contrary to the statutory provisions, particularly Section 76(4) of the AP Reorganization Act, 2014, the respondents/ Committee intentionally, wantonly and deliberately have not included the name of Dr. P.K. Mohanty in the said list. Had his name 48 OA.No.215/2016 been included in the list for allocation, the applicant and also other Officers could have been allotted to the States of their choice. Hence, in view of the admitted facts, we hold that the list prepared comprising officers borne on the cadre of undivided Andhra Pradesh as on 01.06.2014 for distribution to the successor States is illegal, arbitrary on account of non-inclusion of the name of Dr. P.K. Mohanty,IAS, who retired on 01.06.2014 i.e. one day prior to appointed day.
The issue is answered accordingly.
48. Issue No.(iv):
It is an admitted fact and matter of record that Dr. P.K. Mohanty retired on 01.06.2014 AN. Admittedly, on 01.06.2014 Dr. Mohanty attended office and issued number of Governmental Orders including G.O.Rt. No. 2339, dated 01.06.2014 for his relief w.e.f. 01.06.2014 AN. Admittedly, the Government of Andhra Pradesh permitted his voluntary retirement on 01.06.2014 AN and accordingly, he retired on 01.06.2014 AN. Hence, the date of his retirement i.e. 01.06.2014 can be treated as working day.
Admittedly, Dr. P.K. Mohanty was serving as Chief Secretary of the erstwhile State of Andhra Pradesh (Undivided State of Andhra Pradesh) till 01.06.2014, on which date also, he rendered his services and the same is clearly evident from the record that on 01.06.2014 he issued Governmental Orders including G.O.Rt. No. 2339 dated 01.06.2014 under his signature for his relief w.e.f. 01.06.2014 AN.
49. The decision of the Hon'ble Supreme Court in the case of S. Banerjee Vs. Union of India & Others reported in 1989 Suppl. (2) SCC 486, particularly para 6 is applicable to the facts and circumstances of the case on hand. In the said case, Mr. S. Banerjee was promoted, but retired voluntarily from the services of the Registry of the Supreme Court as Additional Registrar with effect from 01.01.1986 FN. In the 49 OA.No.215/2016 meanwhile, IV Central Pay Commission recommended revision of salaries and pension of the Government employees. In para 17.3 of the Report of the Pay Commission, it was recommended that in the case of employees retiring during the period from 01.01.1986 to 30.09.1986, the Government may consider treating the entire DA drawn by them up to December 31, 1985 as pay for pensionary benefits. His claim for the benefit of the recommendation of the Pay Commission was not allowed in view of provision to Rule 5(2) of CCS (Pension) Rules. The retired employee then filed a Writ Petition before the Hon'ble Supreme Court under Article 32 of the Constitution of India. It was mainly contended that by the Union of India that as per proviso to Rule 5(2) of the Pension Rules, the date of retirement i.e. 01.01.1986 should be treated as non- working day and that he was not entitled for the salary for the day of the retirement and that he was not entitled for the benefit of recommendation of Pay Commission in paragraph 17.3 of the report. The Hon'ble Supreme Court considered the question whether Banerjee has retired on 01.01.1986 and came to the conclusion that proviso to Rule 5(2) has no bearing when the employee cannot be said to have retired on 31.12.1985 and that Mr.Banerjee must be held to have retired with effect from 01.01.1986. The Hon'ble Supreme Court categorically held that as soon as 01.01.1986 commenced, the petitioner retired and as he retired from forenoon on that day, it cannot be said that he retired on 31.12.1985. The relevant observations of the Hon'ble Supreme Court read as under:
"It is true that in view of the proviso to rule 5(2) of the Rules, the petitioner will not be entitled to any salary for the day on which he actually retired. But, in our opinion, that has no bearing on the question as to the date of retirement. Can it be said that the petitioner retired on December 31, 1985? The answer must be in the negative. Indeed, Mr. Anti Dev Singh, learned counsel appearing on behalf of the respondents, frankly conceded that the petitioner could not be said to have retired on December 31, 1985. It is also not the case of the respondents that the petitioner had retired from the service of this Court on December 31, 1985. Then it must be held that the petitioner had retired with effect from 50 OA.No.215/2016 January 1, 1986 and that is also the order of this Court dated December 6, 1985. It may be that the petitioner had retired with effect from the forenoon of January 1, 1986 as per the said order of this Court, that is to say, as soon as January 1, 1986 had commenced the petitioner retired. But, nevertheless, it has to be said that the petitioner had retired on January 1, 1986 and not on December 31, 1985. In the circumstances, the petitioner comes within the purview of paragraph 17.3 of the recommendations of the Pay Commission."
50. Further, the Full Bench of the Hon'ble High Court of Andhra Pradesh in the case of Principal Accountant General, AP, Hyderabad & Another Vs. C. Subba Rao, reported in 2005 (2) ALD 1 (FB), held that "a Government servant retiring on a last working day of the month shall be deemed to have ceased to be Government employee with effect from midnight of that day and immediately after commencement of the next day i.e. after midnight 12' O clock he becomes pensioner".
In paras 38, the Hon'ble High Court held as under:
"The common law principles as well as relevant provisions in General Clauses Act dealing with commencement and completion of the time as well as calculation of time - be it day, month or year - do not support the contention of the learned Counsel for respondents that the next day after the date of retirement should also be considered for the purpose of granting annual increment deeming the next day as the day of the retirement. We have already held that a Government servant retiring on the last working day of the month shall be deemed to have ceased to be Government employee with effect from midnight of that day and immediately after commencement of the next day, i.e., after midnight 12'O clock he becomes pensioner. Though he is paid pension, he shall not be deemed to be on duty as a Government servant and therefore annual increment cannot be sanctioned to such retired Government servant."
In para 46 of the judgment, Hon'ble High Court held as under:
51 OA.No.215/2016"46. In all the three judgments so far discussed, the issue was whether a Government servant retiring or voluntarily retiring on the last day of the preceding month can be treated to have acquired status of pensioner from the first day of succeeding month after the month in which such employee retired. The view consistently has been that from the midnight of the day of the superannuation, a Government servant becomes pensioner and all the benefits given by the Government with effect from first day of the month after retirement; assuming that such benefit is given - would be entitled for all the benefits."
Thus, applying the above decisions, it can be fairly held that Dr. P.K. Mohanty was in service upto the midnight of 01.06.2014 i.e., intervening night of 1st and 2nd June 2014 and admittedly, he discharged his functions on 01.06.2014 and in strict adherence to the rules and the judicial mandate, his name should have been included in the list of officers borne on the cadre of united Andhra Pradesh as on 01.06.2014 for the onward distribution of those officers to the successor States.
The issue is answered accordingly.
51. During the course of arguments, learned Asst. Solicitor General contended that there is a roster system to be followed and the respondents did every act in a scientific manner. He also contended that if the contentions of the applicant are accepted, it will affect the distribution list finalized in respect of all the All India Services officers borne on the cadre of the undivided State of Andhra Pradesh and since the distribution has already been finalized in respect of so many officers, it cannot be disturbed at this stage. In support of his contentions, learned Addl. Solicitor General relied upon a decision of the Hon'ble Supreme Court in Union of India vs. Rajiv Yadva reported in 1994 (6) SCC 38, in which the Apex Court held that a candidate selected at best has a right to be considered for appointment to the IAS but he has no such right to be allocated to a cadre of his choice or to his home state. Allotment of cadre is an incidence of service and a Member of an All India Services bears liability to serve in any part of the country. However, in the present case, 52 OA.No.215/2016 the contention of the applicant is that the principles of allocation do not ensure equitable treatment and therefore, challenged under Articles 14 and 16 of the Constitution of India and Section 80 of A.P. Reorganization Act, 2014 and hence, the said judgment relied upon by the 1 st respondent is not applicable to the facts of the present case. Learned counsel for the 1st respondent apprehended that if the relief of the applicants is considered, it may lead to administrative chaos which would have the effect of unsettling the settled things. The Apex Court in the case of S. Ramanathan v. Union of India reported in 2001 (2) SCC 118 held that "It would, therefore, be not appropriate for this Court to deny the relief to the appellants on the ground of apprehended administrative chaos, if the appellants are otherwise entitled to the same." The Hon'ble Supreme Court in para 5 of its judgment in the above referred case has observed as under:
"Dr. Rajeev Dhawan, the learned senior counsel, appearing for the respondents-direct recruits, learned Additional Solicitor General Mr. Mukul Rohtagi, appearing for the Union of India and Mr. A.Mariarputham, Mrs. Aruna Mathur and Mr. Anurag Mathur, appearing for the State of Tamil Nadu, on the other hand contended that there has been no definite prayer before the Tribunal seeking a mandamus for having a triennial review in accordance with the relevant provisions of the Cadre Rules and that being the position, the appellants will not be permitted to raise the matter after so many years, which would have the effect of unsettling the settled questions. It was also contended that the appellants having failed in their attempt to get the select list altered, have now come forward through a subterfuge and the discretionary jurisdiction of the Court should not be invoked for that purpose. Mr. Rohtagi, the learned Additional Solicitor General, though candidly stated before us that the appropriate authority should have done the triennial review for fixation of the cadre strength within the time stipulated in the cadre rules, but vehemently objected for any such direction being issued for re- consideration of the case of the appellants, more so when the appellants have not approached the Tribunal diligently. According to the learned Additional Solicitor General the tribunal has rightly 53 OA.No.215/2016 considered the question of prejudice and has denied the relief sought for. The learned Additional Solicitor General also urged that the situation which should have been made available in 1987 on the basis of the cadre strength, cannot be brought back by a direction for re- consideration and in that view of the matter, neither the equity demands such a direction nor it would be appropriate for this Court to unsettle the settled service position. But to our query, as to how the orders of different tribunals on identical situations could be carried out without any demur, the learned Additional Solicitor General was not in a position to give any reply. It also transpires from the available records that the Union of India, no- where has even indicated as to how it would be unworkable if a direction is issued by this Court for re- consideration of the case of promotion to the IPS Cadre on the basis of the additional vacancies which have been found to be available. It would, therefore be not appropriate for this Court to deny the relief to the appellants on the ground of apprehended administrative chaos, if the appellants are otherwise entitled to the same. It is no doubt true that while exercising the discretionary jurisdiction, Courts examine the question of administrative chaos or unsettling the settled position, but in the absence of any materials on record, the Court should not be justified in accepting the apprehension of any administrative chaos or unsettling the settled position, on the mere oral submission of the learned Additional Solicitor General, without any materials in support of the same. On examining the records of the case, we do not find an iota of material, indicating the so-called administrative chaos, likely to occur in the event any direction is issued for re- consideration of the case of promotion on the basis of the alteration of the cadre strength and, therefore, we have no hesitation in rejecting the said submission of the learned Additional Solicitor General."
52. We have also carefully considered the principle adopted in Prakash Chandra Sinha's case [(2003) 4 JCR 165] by the Hon'ble High Court of Jharkhand that the allocation should not be interfered with on individual grievances relating to non-acceptance of options exercised, unless clear illegality or unreasonableness is established and the said decision of the Hon'ble High Court of Jharkhand has also been confirmed by the 54 OA.No.215/2016 Hon'ble Supreme Court in the matter of Indrage Paswan Vs. Union of India, reported in 2007 (7) SCC 250, which was relied upon by the counsel for the 1st respondent. However, the facts and circumstances in the above two decisions are entirely different from the facts and circumstances of the present case. In the above referred two decisions, the petitioners challenged on the ground that they worked most of their service in Jharkhand and hence, they sought for allocation in Jharkhand state. In the above decisions, the Hon'ble Court has not interfered with the allocation process since there is no illegality found in allocation. The Hon'ble Court further found that no case of mala fides or irrationality has been made out in the matter of allocation of the appellant to the re- organized State of Bihar. The said case is pitched only on the ground of non-acceptance of the option of the appellant and an attack on the grounds for its rejection. However, it is clear from the two judgments that when there is any illegality or unreasonableness or irrationality, the Court can interfere and if there is any discrimination in evolving the guidelines, the Court can interfere in such matters. The case of the applicant herein is that the guidelines do not admit to a rationale principle of uniform application, and application of guidelines is rendered discriminatory on account of arbitrary classification of the officers which bears no nexus for the objective sought to be achieved for equitable allocation. Thus, the act of the respondents indicates sufficient discrimination. The guidelines are irrational to the point of being unreasonable in the Wednesbury sense and thereby, inviting interference by this Tribunal. Hence, in the peculiar facts and circumstances of the present case, the above two judgments are no way beneficial to the respondents.
53. The entire exercise of allotment of the officers to the successor States has been completed by now as admitted by the learned counsel for the 1st respondent and further this applicant and few other officers only approached this Tribunal and cases are pending all through. The only apprehension expressed by the learned Asst. Solicitor General that if the 55 OA.No.215/2016 contentions of the applicant are accepted, it will effect distribution list finalized in respect of all the All India Services officers borne on the cadre of undivided Andhra Pradesh and since the distribution has already been finalized in respect of so many officers, it cannot be disturbed at this stage.
54. Having given the above findings in favour of applicant, this Tribunal is also conscious of the apprehension expressed by the learned counsel for the respondents about the serious consequences that may arise in unsettling the settled position of all the officers if the guidelines and the procedure followed are declared illegal and quashed. In this regard, it is pertinent to refer to the guidelines Nos. 9 & 10, which laid down that in the event if it is decided to change the cadre of any of the All India Services officers who are aggrieved by the distribution/ reallocation of his/ her case, even then there will not be any consequential change in the strength of the cadres already finalized. Further, in the matter of Grand Kakatiya Sheraton Hotel & Towers Employees & Workers Union vs. Srinivasa Resorts Ltd., reported in 2009 (5) SCC 342, at para 77, it was held that "even if the law cannot be declared ultra vires on the ground of hardship, it can be so declared on the ground of total unreasonableness applying Wednesbury's "unreasonableness principles". The Hon'ble Supreme Court observed in para 77 of the said judgment as under:
"This is apart from the fact that the High Court has correctly observed that even if the law cannot be declared ultra vires on the ground of hardship, it can be so declared on the ground of total unreasonableness applying Wednesbury's "unreasonableness"
principles. The Court, specifically, has also found that this reasonableness (sic unreasonableness) is apparent from the fact that the employees falling within sub-sections (1) and (3), although from different classes, had been treated equally, giving them the same benefit. For this purpose, the Court also relied on the observations made in Bennett Coleman & Co., v. Union of India. The High Court also referred to the observations made in Peerless General Finance and Investment Co. Ltd., v. RBI in this 56 OA.No.215/2016 behalf and rightly concluded that the impugned provision was totally unreasonable."
55. For the foregoing reasons and discussions made above and in view of the facts and circumstances of the case and after applying the ratio of the judgments cited by the applicant, we are of the considered view that the impugned guidelines notified by the 1st respondent dated 30.05.2014 and the subsequent process of allocation of officers of All India Services borne on the cadre of the erstwhile State of Andha Pradesh to the successor States of Andhra Pradesh and the Telangana vide the impugned Revised allocation Order dated 05.03.2015 are liable to be quashed and set aside on the ground of being arbitrary, illegal, offending Article 14 of the Constitution of India and also in violation of Section 80 of the A.P. Reorganization Act, 2014. However, in the interest of administrative exigency and with a view not to unsettle the settled things, we refrain ourselves from doing so. The action on the part of the respondents in constituting the Advisory Committee by including Dr. P.K.Mohanty as a Member in the Committee and issuing the Revised Allocation Order dated 05.03.2015 without including the name of Dr. P.K. Mohanty in the list of officers to be allocated though he was well in service as on 01.06.2014 is certainly contrary to the rules and law. Keeping in view the dictum laid down by the Apex Court in the case of S. Ramanathan Vs. Union of India (2001 (2) SCC 118), we have no hesitation to quash and set aside the impugned Order dated 05.03.2015 in so far as the applicant is concerned and accordingly, the same is quashed and set aside in so far as the applicant is concerned. We further direct the respondents to treat the applicant as an All India Service officer of the State of Telangana cadre with all consequential benefits. The interim order granted on 30.10.2014 is made absolute."
12. We are in respectful agreement with the above said judgment of co-
ordinate Bench of this Tribunal and the legal principles discussed therein.
Further the above judgment was challenged before the Hon'ble High Court in 57 OA.No.215/2016 WP.No.4938/2017 and no stay has been granted. The matter is pending adjudication.
13. Recently, this Tribunal has decided one more case of similar nature in OA.No.422/2016 relating to an IPS officer Sri Abhishek Mohanty seeking cadre change from Andhra Pradesh to Telangana. When the order was not complied with, the applicant filed Contempt Petition(CP) No.94/2021. The matter was also taken up with the Hon'ble High Court of Telangana in WP.No.9791/2022 wherein no interim order was issued staying the judgment of this Tribunal.
Finally, when the CP was pressed, the respondents have allowed the applicant to join Telangana cadre on 14.03.2022 vide their order in G.O.Rt.No.583(General Administration (SPL.B) Department dtd.14.03.2022.
14. Hence, keeping the above developments in view and the principle laid down by the Hon'ble Supreme Court in S.I.Roop Lal case as well as in the light of the above cited judgment of this Tribunal, R-3 is directed to relieve the applicant and R-4 to issue posting orders accordingly by treating him as an IFS officer belonging to the cadre of State of Telangana.After the applicant relieves and joins the Cadre of Telangana, the same may be reported to R-1 & R-2 appropriately. The time permitted to implement the order is three(3) months from the date of receipt of a copy of this order.
15. With the above direction, the OA is allowed with no order as to costs.
(B.V.SUDHAKAR) (ASHISH KALIA) ADMINISTRATIVEMEMBER JUDICIAL MEMBER /ps/