C.M. Thri Vikrama Varma vs Avinash Mohanty & Ors

C.M. Thri Vikrama Varma ... Appellant

Versus

Avinash Mohanty & Ors. ... Respondents

WITH

CIVIL APPEAL NO. 2551 OF 2010

Union of India & Ors. ... Appellants

Versus

Avinash Mohanty & Anr. ... Respondents

J U D G M E N T

A. K. PATNAIK, J.

These two appeals by way of special leave under Article

136 of the Constitution are against the impugned judgment

of the Division Bench of the Andhra Pradesh High Court

dated 22.03.2007 in Writ Petition No. 458 of 2007.

2 2. The facts very briefly are that in the Civil Services

Examination, 2004 conducted by the Union Public Service

Commission, Avinash Mohanty and Vikrama Varma

amongst others were selected for appointment to the Indian

Police Service (for short `the IPS') and were offered

appointments to the IPS in 2005. By notification dated

19.01.2006 of the Government of India, Ministry of Home

Affairs, the candidates who had been selected and

appointed to the IPS on the basis of the results of the Civil

Services Examination, 2004 were allocated to different State

cadres. By this notification, Avinash Mohanty, who had

secured the 45th rank in the Civil Services Examination,

2004 was allocated to the Chhattisgarh cadre, whereas

Vikrama Varma, who had secured 201st rank in the Civil

Services Examination, 2004 was allocated to the Andhra

Pradesh cadre. Avinash Mohanty made representations to

the authorities against his allotment to the Chhattisgarh

cadre and claimed that he should have been allocated to the

Andhra Pradesh cadre. When his representations did not

yield any results, Avinash Mohanty filed O.A. No. 286 of

2006 before the Central Administrative Tribunal, Hyderabad

3

Bench (for short `the Tribunal') on 03.05.2006 contending

that the guidelines and norms in the letter dated

31.05.1985 of the Secretary, Government of India, Ministry

of Personnel and Training (for short `the letter dated

31.05.1985') have not been followed while making the

allocations and the allocation of Vikrama Varma to the

Andhra Pradesh cadre was arbitrary and in his place he

should have been allocated to the Andhra Pradesh cadre.

After considering the pleadings of the parties and hearing

learned counsel for the parties, the Tribunal by its order

dated 24.11.2006 dismissed the O.A. Aggrieved, Avinash

Mohanty filed Writ Petition No. 458 of 2007 under Article

226 of the Constitution before the Andhra Pradesh High

Court and by the impugned judgment, the High Court

allowed the Writ Petition, quashed the allocation of the

Vikrama Varma to the Andhra Pradesh cadre and directed

the Union of India to reconsider the allocation of Avinash

Mohanty and Vikrama Varma in accordance with law.

3. Mr. M.S. Ganesh, learned counsel for Vikrama Varma,

the appellant in C.A. No. 2550 of 2010, submitted that this

Court in Union of India vs. Rajiv Yadav, IAS and Others 4

[(1994) 6 SCC 38] while considering the allocation of officers

appointed to the Indian Administrative Services (for short

`the IAS') has held that under Rule 5 of the Indian

Administrative Service (Cadre) Rules, 1954, the Central

Government is under no obligation to have options or

preferences from the officers concerned and this Rule made

the Central Government the sole authority to allocate the

members of the service to various cadres and therefore a

person appointed to an All India Service, having various

State cadres, has no right to claim allocation to a State of

his choice or to his home State. He submitted that this

position of law has been reiterated by this Court in Union of

India vs. Mh athung Kithan and Others, etc. [(1996) 10 SCC

562]. He also relied upon the judgment of the Division

Bench of the Andhra Pradesh High Court in G. Srinivas Rao

vs. Union of India & Ors. (2005 (2) ALT 728 (D.B.) which,

while referring to the law laid down in Rajiv Yadav's case

(supra), has further observed that the Union of India was

required to operationalise a plurality of Government choices

in the matter of allocation of officers to different State

cadres and in the very nature of things, it is not always

5

possible to fulfill all the policy objectives of Union of India in

every factual circumstance and in every recruitment year.

He also referred to the observations made in the Division

Bench judgment of the Andhra Pradesh High Court in the

case of G. Srinivas Rao (supra) that considering the

complexities of accommodating the multitude of federal

policy choices, allocation is a daunting task and there are

no ready solutions which can perfectly be tailored to fit such

complex problems. Considering all these multiple factors

which have to be kept in mind while making the allocations

of members of the IPS to different cadres, the High Court in

the present case should not have quashed the allocation of

Vikrama Varma to the Andhra Pradesh cadre. He

submitted that the main reason given by the High Court in

the impugned judgment is that in the current roster (3rd

Cycle) already nine OBC candidates had been allocated to

the Andhra Pradesh cadre before the allocation of Vikrama

Varma, who was an OBC candidate, and allocation of

Vikrama Varma to the Andhra Pradesh cadre would make a

total of ten OBC candidates in the 30 point roster which

was 6% excess over the 27% reservation in favour of OBC

6

candidates. He submitted that this Court has held in the

case of Rajiv Yadav (supra) that allocation is not to be tested

by the reservation provision under Article 16(4) of the

Constituion and therefore 27% reservation in favour of OBC

candidates was not relevant in the matter of allocation and

the reasoning given by the High Court in the impugned

judgment is erroneous.

4. Mr. Mohan Parasaran, learned Additional Solicitor

General appearing for the Union of India, the appellant in

C.A. No. 2551 of 2010, submitted that the direct

recruitment in the IPS is done on an All India basis under

the Indian Police Service (Recruitment) Rules, 1954 (for

short `the Recruitment Rules') and hence reservation in

such direct recruitment is also on All India basis. He

submitted that after direct recruitment is over and the

selected general and reserved candidates are appointed to

the IPS under Rule 5 of the Indian Police Service (Cadre)

Rules, 1954, the Central Government makes allocation of

cadres to the members of the IPS and Rule 5 does not

provide for reservation. He submitted that this Court has,

therefore, held in the case of Rajiv Yadav while interpreting

7

Rule 5 of the Indian Police Service (Cadre) Rules, 1954,

which is similarly worded, that the principles of allocation

contained in the letter dated 31.05.1985 do not provide for

reservation on appointments or posts and the question of

testing the principles of allocation on the anvil of Article 16

(4) of the Constitution does not arise. Relying on Para 32 of

the counter affidavit filed by the Union of India before the

Tribunal in O.A. No. 286 of 2006, he submitted that at the

time of allocation of cadres to the candidates for

appointment to IPS on the basis of the Civil Services

Examination 2004, a total of 8 candidates were allocated to

the Andhra Pradesh cadre from the last five Civil Services

Examinations (1999-2003), out of which 2 (27%) were OBC

and hence there was neither any excess nor any shortfall in

respect of allocation of OBC candidates in the IPS cadre of

Andhra Pradesh. He submitted that from Civil Services

Examination 2004 a total number of 2 candidates were to

be allocated to the Andhra Pradesh cadre and as per

prescribed percentage, one vacancy each had to be filled up

from General category and OBC category and as per 30

point roster prepared as per the letter dated 31.05.1985, the

8

OBC vacancy was meant for an insider OBC candidate and

thus the same has been filled up by allocating Vikrama

Varma, an OBC candidate. He submitted that the High

Court in the impugned judgment has not correctly

appreciated the roster maintained by the Government and

has instead observed that there was clear arbitrariness in

the operation of the roster system. Mr. Parasaran finally

submitted that the directions of the High Court in the

impugned judgment for reconsideration of cadre allocation if

followed will have a cascading effect on the service.

5. Mr. Sunil Kumar, appearing for Avinash Mohanty, the

respondent no.1 in the two appeals, on the other hand,

submitted that in Rajiv Yadav's case (supra) this Court has

held that the roster system in the letter dated 31.05.1985

ensures equitable treatment to both the general candidates

and the reserved candidates. He submitted that the table

indicating the correct position of vacancies filled from Civil

Services Examination 1994 to 2003 furnished in Para 28 of

the counter affidavit dated 22.03.2007 of the Union of India

filed in the High Court has been extracted in the impugned

judgment of the High Court, which will go to show that four

9

vacancies had been assigned to insider OBCs and five

vacancies had been assigned to outsider OBCs and thus

nine OBC candidates had already been allocated in a total

of 29 vacancies in the Andhra Pradesh cadre and there was

already an excess over 27% reserved in favour of the OBC

candidates. He submitted that for this reason the High

Court took the view that the 10th vacancy in the Andhra

Pradesh cadre in the 30 point roster, if allocated to an OBC

candidate would be clearly a violation of the equitable

principle of allocation contained in the letter dated

31.05.1985 and would be arbitrary. He submitted that the

directions of the High Court for reconsideration of cadre

allocation of Avinash Mohanty and Vikrama Varma are

justified in the facts of the case and the directions are to be

followed in their cases only and will not have any cascading

effect on the service.

6. Rules 3 and 5 of the IPS (Cadre) Rules, 1954, are

quoted herein below:

"3. Constitution of Cadres- 3(1) There shall

be constituted for each State or group of States

an Indian Police Service Cadre.

10 3(2) The Cadres so constituted for a State or a

group of States are hereinafter referred to as a

`State Cadre' and a `Joint Cadre' respectively.

5. Allocation of members to various cadres-

5(1) The allocation of cadre officers to the

various cadres shall be made by the Central

Government in consultation with the State

Government or State Governments concerned.

5(2) The Central Government may, with the

concurrence of the State Governments

concerned, transfer a cadre officer from one

cadre to another cadre."

It will be clear from Rule 3 that each State and a group of

States will have a State cadre or Joint Cadre respectively of

the IPS and it will be further clear from Rule 5 that the

Central Government in consultation with the State

Government or State Governments concerned has the power

to make allocation of IPS officers to various cadres.

7. The broad principles, which are to be followed for

allocation, have been indicated in Para 3 of the letter dated

31.05.1985 and are extracted herein below:

"(1) The vacancies in every cadre will be

earmarked for 'outsiders' and 'insiders' in the

ratio of 2:1. In order to avoid problems relating

to fractions and to ensure that this ratio is

maintained, over a period of time, if not during

every allocation, the break-up of vacancies in a

cadre between 'outsiders' and 'insiders' will be

11

calculated following the cycle of 'outsider',

'insider', 'outsider'

(2) The vacancies for Scheduled Castes and

Scheduled Tribes will be reserved in the various

cadres according to the prescribed percentage.

For purpose of this reservation, Scheduled Castes

and Scheduled Tribes will be grouped together

and the percentage will be added. Distribution of

reserved vacancies in each cadre between

'outsiders' and 'insiders' will be done in the ratio

2:1. This ratio will be operationalised by following

a cycle 'outsider, 'insider', 'outsider' as is done in

the case of general candidates.

(3) Allocation of 'insiders', both men and women,

will be strictly according to their ranks, subject to

their willingness to be allocated to their home

States

(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:

(i) All the State Cadres/Joint Cadres should be

arranged in alphabetical order and divided into

groups which, on the basis of the average over a

period of time, are taking roughly equal number

of candidates each. On the basis of average

intake during the last 4 years, the group could be

as follows:

Group I : Andhra Pradesh, Assam-Meghalaya,

Bihar and Gujarat

Group II : Haryana, Himachal Pradesh, Jammu

& Kashmir Karnataka, Kerala and

12

Madhya Pradesh

Group III: Maharashtra, Manipur-Tripura,

Nagaland, Orissa, Punjab, Rajasthan

and Sikkim

Group IV : Tamil Nadu, Union Territories, Uttar

Pradesh and West Bengal.

(ii) Since the number of Cadres/Joint Cadres is

21, the cycles will be 1-21, 22-42, 43-63 and so

on.

(iii) The 'insider' quota should then be distributed

among the States and assigned to different cycles

of allotment. For example, if a State gets 4

'insider' candidates, they should go to the share

of the State in their respective cycles and if there

are 2 'insider' candidates from the same cycle,

they should be treated as going to the State in

two successive and so on.

(iv) The 'outsider' candidates should be arranged

in order of merit and allotted to the State cadres

in cycles as described in (v) below

(v) In the first cycle, State Cadre/Joint Cadre

which have not received 'insider' candidates

should be given one candidate each in order of

merit of 'outsider' candidates. The process should

be repeated in successive cycles, each successive

cycle beginning with the next successive group of

States, e.g., the second cycle should begin from

Group II States, the third cycle with Group III

States and the fourth cycle with Group IV States

and the first cycle again with Group I States.

Occasionally it may happen that a candidate's

turn may come in such a way that he may get

allocated to his own home State. When that

13

happens, the candidate next below him should be

exchanged with him.

(vi) For the succeeding year, the State cadres

should be arranged again in alphabetical order

but with Group I of the previous year at the

bottom, i.e., the arrangement will begin with

Group II on top. In the third year, Group III will

come on top and so on

(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 category

candidates would be adopted. In other words, a

separate chart should be prepared with similar

grouping of States and similar operational details

should be followed. If there is a shortfall in

general 'insiders' quota it could however be made

up by 'insider' reserved candidates."

8. It will be clear from a reading of clause (1) of the broad

principles of allocation in the letter dated 31.05.1985

quoted above, that vacancies in every cadre are required to

be earmarked for outsiders and insiders in the ratio of 2:1

and in order to avoid problems relating to fractions and to

ensure that this ratio is maintained, over a period of time, if

not during every allocation, the breakup of vacancies in a

14

cadre between outsiders and insiders will have to be

calculated following this cycle of `outsider', `insider',

`outsider'. Clause (2) of the broad principles of allocation in

the letter dated 31.05.1985 further provides that the

vacancies for Scheduled Castes and Scheduled Tribes are to

be reserved in the various cadres according to the

prescribed percentage and for the purpose of this

reservation, Scheduled Castes and Scheduled Tribes are to

be grouped together and the percentage to be added and

distribution of reserved vacancies in each cadre between

outsiders and insiders are to be done in the ratio of 2:1 and

this ratio is to be operationalised by following a cycle

outsider, insider, outsider as is done in the cases of general

candidates.

9. 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

15

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 not 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 not permissible under

Article 16(4) of the Constitution. This Court did not 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 not 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 not arise. In Para 6 of the judgment in

Rajiv Yadav's case, the Court explained that in compliance

with the statutory requirements and in terms of Article 16(4)

of the Constitution, 22= % reserved category candidates are

16

recruited to the IAS and having done so, both the categories

are to be justly distributed amongst the States. The Court

also held that when a person is appointed to the All India

Service, having various State cadres, he has no right to

claim allocation to a State of his choice or to his home State

and the Central Government is under no legal obligation to

have options or even preferences from the officer concerned

and Rule 5 of the Indian Administrative Service (Cadre)

Rules, 1954, made the Central Government the sole

authority to allocate the members of the service to various

cadres. This position of law was reiterated in Mhathung

Kithan and Others (supra). The Court, however, has not

held in Rajiv Yadav or in Mhathung Kithan and Others that

such authority of the Central Government can be exercised

arbitrarily or in a manner which is not equitable to the

general or reserved category candidates selected for

appointment to an All India Service. On the contrary, the

Court has held in Rajiv Yadav that the roster system as

contained in the letter dated 31.05.1985 ensures equitable

treatment to both the general candidates and the reserved

candidates.

17 10. In fact, the object of the principles of allocation

indicated in different clauses in the letter dated 31.05.1985

is not 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

18

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.

11. Coming now to the facts of this case, we find that the

High Court has in the impugned judgment extracted the

table of vacancies filled up from Civil Services Examination

1994 - 2003, as furnished in Para 28 of the counter

affidavit dated 22.03.2007 filed by the Union of India before

the High Court, which is extracted hereunder :

Total S.No. CSE Insider Outsider Vacancies

GE GE OBC SC/ST OBC SC/ST N N

1

1. 7 - 1 1 3 1 1 994 1

2. 5 1 1 - 1 1 1 995 1

3. 6 2 - - 1 2 1 996 1

4. 2 - - - 2 - -

997 1 5. 1 - 1 - - - -

998 1 6. 1 - - - 1 - -

999 2 7. 1 - - - 1 - -

000 2 8. 1 - - 1 - - -

001 2 9. 1 - - - - 1 -

002 19 2 10. 4 - 1 - 2 - 1 003

Tota 29 3 4 2 11 5 4 l

After considering this table, the High Court has held in the

impugned judgment that even according to the Union of

India, as against a total of 29 vacancies 9 OBC candidates

(4 insiders + 5 outsiders) had been allocated to the Andhra

Pradesh cadre from amongst the successful candidates of

Civil Services Examinations from 1994-2003 and if Vikrama

Varma, an insider OBC candidate, was to be allocated to the

Andhra Pradesh cadre from the selected candidates of the

Civil Services Examination, 2004, a total of 10 OBC

candidates would be allocated to the Andhra Pradesh cadre

in the 30 point roster, making the percentage of OBC

candidates to 33 1/3, which was a variation of 6% in excess

and by any standard was not a marginal variation.

12. The Union of India, in para 32 of its counter affidavit

before the Tribunal in O.A.No.286 of 2006, has, however,

stated that from the five Civil Services Examinations (1999-

2003) a total of 8 candidates appointed to the IPS were

allotted to the Andhra Pradesh cadre, out of which 2 were

OBC candidates and 2 out of 8 does not exceed 27% and,

20

therefore, there was neither any excess nor any shortfall of

allocation of OBC candidates in the Andhra Pradesh IPS

cadre. We fail to appreciate this calculation of percentages

on reserved category candidates allotted to the Andhra

Pradesh cadre worked out on the basis of number of

candidates allotted to the Andhra Pradesh cadre from the

five Civil Services Examinations, from 1999 - 2003, when in

the very same counter affidavit of the Union of India filed

before the Tribunal in O.A. No. 286 of 2006, in para 21, it is

clearly stated that a 30 point roster in respect of Andhra

Pradesh was being maintained for allocation of insider and

outsider, as well as, reserved and general candidates in

accordance with clauses (1) and (2) of Para (3) of the letter

dated 31.05.1985. It appears to us that only with a view to

somehow justify the allocation of Vikrama Varma, an OBC

candidate, to the Andhra Pradesh cadre from the Civil

Services Examination, 2004, the Union of India has taken

the figures of allocation of candidates selected for the IPS in

the five Civil Services Examinations of 1999 to 2003 instead

of taking the figures of appointments to the vacancies in the

30 point roster starting from the 1994 Civil Services

21

Examination till 2003 Civil Services Examinations.

13. 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 not be an insider OBC vacancy in which Vikrama

22

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 not equitable.

14. In our view, complexity of a decision making process

cannot be a defence when a grievance is made before the

Court by a citizen that his fundamental right to equality has

been violated. When such a grievance is made before the

Court, the authorities have to justify their impugned

decision by placing the relevant material before the Court.

As has been held by a Constitution Bench of this Court in

M. Nagaraj vs. Union of India [(2006) 8 SCC 212] at 277 in

Para 118:

"The constitutional principle of equality is

inherent in the rule of law. However, its reach is

limited because its primary concern is not with

the content of the law but with its enforcement

and application. The rule of law is satisfied

when laws are applied or enforced equally, that

is, even-handedly, free of bias and without

irrational distinction. The concept of equality

allows differential treatment but it prevents

distinctions that are not properly justified.

Justification needs each case to be decided on

case-to-case basis."

23 We are also of the considered opinion that the impugned

order of the High Court quashing the allocations of Vikrama

Varma and Avinash Mohanty and directing reconsideration

of their allocation will not have cascading effects on the

service because the High Court has quashed the allocation

of only two members of the IPS, namely, Avinash Mohanty

and Vikrama Varma, and not of other members of the IPS

and directed reconsideration of their allocation.

15. We, therefore, do not find any merit in these appeals

and we dismiss the same and vacate the interim orders

staying the operation of the impugned judgment. No order

as to costs.

.............................J.

(R. V. Raveendran)

.............................J.

(A. K. Patnaik)

New Delhi,

July 12, 2011.