K.S.JHAVERI,J. - (1.) By way of this petition, the petitioner has assailed the judgment and order of the Central Administrative Tribunal whereby the tribunal has dismissed the Original application preferred by the applicant-petitioner herein for his allocation to his home State-Rajasthan.
(2.) The facts of the case are that the petitioner had qualified in the Civil Services Examination, 1995, appointed to IAS a member of 1996 Batch and allocated to Nagaland Cadre of IAS vide Notification dt. 18.11.1996 (Annex.A-4). He had obtained the rank of 17 in the said Examination. His declared home State is Rajasthan and he had opted for, allocation to his home cadre. One Sh. Ajitabh Sharma, respondent no. 3, who belongs to OBC category also qualified the same examination, secured 18th rank and expressed his willingness to be considered for allocation to his home State of Rajasthan and was allocated Rajasthan Cadre. The petitioner represented (Annex.A-5), inter alia, challenging his allocation to Nagaland Cadre which was replied to (Annex. A-6), detailing as to how the petitioner has been correctly allocated Nagaland Cadre as an outsider.
(3.) Counsel for the petitioner has contended that petitioner has been wrongly deprived home State against respondent no.3. in specific breach of guidelines issued by the Central Government, Ministry of Personnel and Training, Administrative Reforms and Public Grievances and Pension vide D.O. No. 13012/5/84-AIS(I) dated 30/31 May, 1985 wherein under Broad principles of allocation on the basis of roster system, condition 4 and 4 (vii) provides as under:- (4) Allocation of 'outsiders', whether they are general candidates or reserved candidates, whether they are men or women, will be according to the roster system after placing 'insiders' at their proper places on the chart as explained below:- (vii) In the case of candidates belonging to the reserved category, such of those candidates, whose position in the merit list is such that they could have been appointed to the service even in the absence of any reservation, will be treated on par with general candidates for purposes of allotment though they will be counted against reserved vacancies. In respect of other candidates belonging to the reserved category a procedure similar to the one adopted for general candidates would be adopted. In other words, a separate chart should be prepared with similar grouping of States and similar operational details should be followed. If there is a shortfall in general 'insiders' quota it could, however, be made up by 'insider' reserved candidates. 3. 1 He contended that tribunal has committed serious error in considering clause 4 (vii) as reproduced herein above and the petitioner has been wrongly deprived of his right. 3. 2 He also taken us to the order of the Tribunal wherein it has been observed as under:- The reservation part has no relevance thereafter in the matter of cadre allocation. The policy of reservation which is applicable at the time of recruitment, is applicable at the time of cadre allocation. Cadre allocation is an incidence of service. This position has been upheld by the Hon'ble Supreme Court also in the case of Rajiv Yadav, (1994) (6) SCC 381. The relevant extract is reproduced below:- We may examine the question from another angle. A selected candidate has a right to be considered for appointment to the IAS but he has no such right to be allocated to a cadre of his choice or to his some state. Allotment of Cadre is an incidence of service. A member of an All India Service bears liability to serve in any part of India. The Hon'ble Supreme Court in the same case has also held that when a person is appointed an All India Service, having various states cadres, he has no right to claim allocation to a state of his choice or to his home state. The Central Government is under no legal obligation to have options or even preferences from the officer concerned. Rule 5 of the cadre rules makes the Central Government the sole authority to allocate the members of the service to various cadres. It is obligatory for the Central Government to frame rules/regulation or otherwise notify the principles of cadre allocation. The applicant has challenged the allocation of Sh. Ajitabh Sharma to Rajasthan, his some State who secured 18th rank. Sh. Ajitabh Sharma has been given the benefit of cadre allocation. The applicant has no claim to OBC status. As regards the contention of the applicant that he had been illegally allotted to Nagaland whereas he would have got Punjab according to the roster. JUDGEMENT_69_LAWS(RAJ)5_2018_1.html Sh. Ajitabh Sharma: Rank-18. He belongs to OBC category. As he did avail himself of any of the concessions available to reserved category and was above the last general candidate in the merit list, he was recommended for appointment to the service against general vacancy. He was appointed to IAS against general vacancy but by treating hims as a general candidate he was to be put to a disadvantageous position as regards cadre allocation. However, in the matter of cadre allocation, had he been treated as a general candidate, he would have been in a disadvantageous position because a general candidate who was higher in merit list and further the Insider OBC vacancy would be allocated to an OBC candidate who had a lower merit position than the applicant. The second General category vacancy was for outsiders and the applicant could have been considered against it as an insider General category candidate. Thus, unless there was another General category insider vacancy, the question of consideration of the application for allocation to his home State as General category candidate just did arise. Whether respondent No. 3 was to be considered as an OBC or a general category insider candidate would make no difference when there was no second General category insider vacancy. The fact remains that there was only one General category insider vacancy, which has rightly gone to Sh. Alok Gupta with an admittedly high rank than the applicant. In view of this, in our considered opinion, the first issue has to be answered in negative. 13. As far as the second issue is concerned, we are required to examine the distribution of the four vacancies for Rajasthan Cadre before we can answer it. It may, however be mentioned straightway at this juncture that unless the distribution was so altered that it resulted in availability of a second General category insider vacancy in place of OBC category insider vacancy, the applicant can still have any claim for consideration for allocation to his home State. During our examination, we will also consider the plea of the applicant that under the roster system, there cannot be reservation for OBC as insider as well as OBC outsider when there are only 4 vacancies, which having been done by the respondents had resulted in 2 vacancies for one. It has become necessary to carry out a detailed examination because as stated by the respondent no.1 at the bottom of page 17 of their reply that "It may also be clarified that only insider OBC vacancy has been converted into outsider OBC vacancy and the community wise break up has been changed or disturbed." It appears to us that the earlier and subsequent (after the said conversion) distribution of 4 vacancies can be better illustrated with following diagram:- Before conversion JUDGEMENT_69_LAWS(RAJ)5_2018_2.html After conversion JUDGEMENT_69_LAWS(RAJ)5_2018_3.html From the above diagram, it transpires that, as claimed by the respondent no.1, the community wise distribution has been changed or disturbed by the conversion of one insider OBC vacancy into outsider OBC vacancy. More importantly for the applicant, a second General category insider vacancy has materialised, against which the applicant could by a claim in preference to respondent no. 3 by virtue of higher rank. It can also be noted that the conversion has resulted in 2 vacancies of OBC and his pleas in this regard have to be rejected. The applicant has neither in his averments in the application nor in his rejoinder specifically challenged the powers of the Central Government to carry out such a conversion on the touchstone of the provisions contained the letter dt. 31.5.1985, incorporating the principles of allocation. Although the averments of the respondent no.1 are very precise on this point, it is quite apparent that the respondent no.3 has been allocated the State cadre of Rajasthan as an outsider candidate because it seems that as per the roster system Ann.R-II prepared on 4.11.1996 shown under Col.7 was to be allocated against the4 second General category vacancy for Rajasthan. It is seen from the Master statement which is part of the Annexure-R-II, that result of the candidate at SL. No. 12 (rank no. 11A) has been withheld by the UPSC and, therefore, the SL No. of respondent no.3 with rank 18, had been written as 19 and thus having SL No. 19 he was apparently allocated to Rajasthan against second cycle for General category candidates as shown in the tabular roster statement at Ann.R-II. The tabular roster statement at Ann.R-II has also been challenged by the applicant even in his rejoinder and we have to, therefore, hold that respondent no.3 has been correctly allocated to Rajasthan as a General outsider which also satisfies the requirement of para 4(vii) of the letter dt. 31.5.1985 that a reserved category candidate, whose position in the merit list is such that he would have been appointed to service even in the absence of reservation, will be treated at par with the General candidates for the purpose of allotment of cadre. That the respondent No. 3 happens to belong to the OBC category does make any difference. Some element of luck is inherent in the roster system, upheld by the Apex Court, and having been able to get the only general category insider vacancy for allotment of his home State because of a higher ranked General insider candidate, the applicant was 'unlucky' and we use this word very reluctantly, to have been allocated to Nagaland as an outsider. The second issue is also, therefore, replied in the negative. 3. 3 Counsel for the petitioner has contended that the view taken by the tribunal is contrary to Supreme Court judgment in C.M. Thri Vikrama Varma v. Avinash Mohanty and ors. reported in, (2011) 7 SCC 385 wherein it has been observed as under:- 17. In Rajiv Yadav's case (supra), Rajiv Yadav appeared in the Civil Services Examination held in 1988 and he was selected for appointment to the IAS and he was placed at Serial No. 16 in the order of merit. Though he belongs to the Union Territory of Delhi and he opted for the Union Territory's cadre, he was allocated to the Manipur-Tripura cadre. He challenged the order allocating him to the Manipur-Tripura cadre before the Central Administrative Tribunal, New Delhi, raising various contentions and the Tribunal held that the power conferred by Article 16(4) of the Constitution is only for making provision for reservation of appointment or posts in favour of any backward class of citizens adequately represented in the services under the State and cannot be extended to allocation of members of the IAS to different cadres. The Tribunal further held that Clause (2) of the principles of allocation gave an added benefit to IAS probationers belonging to Scheduled Castes and Scheduled Tribes and this was permissible under Article 16(4) of the Constitution. This Court did approve of this reasoning of the Tribunal and held that the principles of allocation as contained in Clause (2) of the letter dated 31.05.1985 do provide for reservation for appointments or posts and as such the question of testing the principles of allocation on the anvil of Article 16(4) of the Constitution does arise. 20. In fact, the object of the principles of allocation indicated in different clauses in the letter dated 31.05.1985 is only to implement the policy having 2 outsiders and 1 insider in each cadre, but also to ensure that general and reserved candidates selected and appointed to the All India Service get a fair and just treatment in the matter of allocation to different cadres. This will be clear from Clause (2) of the letter dated 31.05.1985 which states that the vacancies for Scheduled Castes and Scheduled Tribes in the various cadres should be according to the prescribed percentage and from Clause (3) which states that the allocation of insiders, both men and women, will be strictly according to their ranks, subject to their willingness to be allocated to their home States. This will also be clear from Clause 4(vii) which explains how the candidates belonging to the reserved category and the general category will be dealt with. These principles have been laid down in the letter dated 31.05.1985 because while making allocations of different candidates appointed to the service to different State cadres or Joint cadres, the Central Government has also to discharge its constitutional obligations contained in the equality principles in Articles 14 and 16(1) of the Constitution. A member appointed to the All India Service has no right to be allocated to a particular State cadre or Joint cadre, but he has a right to a fair and equitable treatment in the matter of allocation under Articles 14 and 16(1) of the Constitution. 25. Admittedly, Avinash Mohanty had secured a higher rank than Vikrama Varma in the Civil Services Examination, 2004 and both Avinash Mohanty and Vikrama Varma are insiders. Clause (3) of Para 3 of the letter dated 31.05.1985 states that allocation of insiders, both men and women, will be strictly according to their ranks, subject to their willingness to be allocated to their home States. Hence, Avinash Mohanty was required to be considered for allocation to the Andhra Pradesh cadre if he had given his willingness for being allocated to his home State, Andhra Pradesh, before Vikrama Varma could be considered for such allocation. If, however, the vacancy for which consideration was being made was a vacancy for an insider OBC candidate in the 30 point roster, Vikrama Varma would have preference over Avinash Mohanty. But the High Court has come to a finding that the number of vacancies in the 30 point roster filled up by OBC candidates from Civil Services Examinations 1999-2003 were 9 and had exceeded the 27% reservation for OBC candidates and hence there could be an insider OBC vacancy in which Vikrama Varma could have been allocated. The High Court was, therefore, right in coming to the conclusion that allocation of Vikrama Varma to the Andhra Pradesh cadre was in violation of the guidelines contained in the letter dated 31.05.1985 and was clearly arbitrary and equitable. 3. 4 He further contended that as soon as the General category has gone, second part of it is to be given to insider and therefore, the case of the petitioner ought to have been considered since he is more meritorious to respondent no.3.;