G. Srinivas Rao vs Union Of India & Ors

G. Srinivas Rao ... Appellant

Versus

Union of India & Ors. ... Respondents

J U D G M E N T

A. K. PATNAIK, J.

This is an appeal by special leave under Article 136 of

the Constitution against the order dated 03.02.2005 of the

Division Bench of the Andhra Pradesh High Court

dismissing Writ Petition No.8072 of 2004 filed by the

appellant.

2. The facts very briefly are that the appellant, a general

candidate not belonging to any reserved category, took the

Civil Services Examination, 1998 conducted by the Union

Public Service Commission and he secured 95th rank and

was appointed to the IPS and was allocated to the Manipur-

Tripura Joint Cadre on 27.10.1999. Respondent No.4, who

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as an OBC candidate, also took the Civil Services

Examination, 1998 and secured 133rd rank and was

appointed to the IPS and was allocated to the Andhra

Pradesh Cadre on 27.07.1999. The appellant filed O.A.

No.155 of 2001 before the Central Administrative Tribunal,

Hyderabad Bench, contending that instead of respondent

no.4 he should have been allocated to the Andhra Pradesh

Cadre and that the allocation of respondent no.4 to the

Andhra Pradesh Cadre was bad in law, unjust and

unsustainable. The appellant prayed for a direction from

the Tribunal to the respondent no.1 to allocate him to the

Andhra Pradesh Cadre. The Tribunal, however, did not find

any irregularity in the roster system followed by the

respondent no.1 in making the allocations and by order

dated 25.07.2001 dismissed the O.A. The appellant

challenged the order dated 25.07.2001 of the Tribunal

before the High Court under Article 226 of the Constitution

in Writ Petition No.17902 of 2002 and contended that

though there was in the year 1999 a vacancy for a general

candidate in the Andhra Pradesh Cadre to which the

appellant could be allocated, this was converted to a

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vacancy for OBC candidate and the respondent no.4 was

allocated to this vacancy in the Andhra Pradesh Cadre. The

appellant also contended before the High Court that this

vacancy for a general candidate was converted to a vacancy

for OBC candidate on the ground that relevant data for five

years in respect of OBC was not available though actually

such data was available. Since this aspect of the matter

had not been considered by the Tribunal, the High Court

allowed the Writ Petition, set aside the order of the Tribunal

and remanded the case to the Tribunal for fresh

consideration.

3. After the case was remanded to the Tribunal, the

respondent no.1 filed a petition before the Tribunal seeking

leave to file an additional affidavit and pursuant to leave

granted by the Tribunal, the respondent no.1 filed an

additional affidavit. In this additional affidavit, the

respondent no.1 stated that a total number of 36 vacancies

in the IPS were to be filled up on the basis of the Civil

Services Examination, 1998 and out of total number of 36

vacancies, 21 vacancies were to be filled up by general

candidates, 10 vacancies were to be filled up by OBC

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candidates and 5 vacancies were to be filled up by SC/ST

candidates in accordance with the reservation provisions

and the roster points and in May 1999, the vacancies were

distributed category-wise in the following manner:-

S.L Cadre Total 27% OBC 22.5 % SC/ST Genera

vacan rounded off rounded off l

-cies

1. Andhra Pradesh 1 .27 0 .225 0 1

2. Assam 1 .27 0 .225 0 1

Meghalaya

3. Bihar 1 .27 0 .225 0 1

4. Gujarat 3 .81 1 .675 1 1

5. Haryana 1 .27 0 .225 0 1

6. Himachal 1 .27 0 .225 0 1

Pradesh

7. J & K 3 .81 1 .675 1 1

8. Karnataka 3 .81 1 .675 1 1

9. Kerala 2 .54 1 .450 0 1

10. Madhya Pradesh 1 .27 0 .225 0 1

11. Maharashtra 1 .27 0 .225 0 1

12. Manipur Tripura 4 1.08 1 .900 1 2

13. Nagaland 2 .54 1 .450 0 1

14. Orissa 2 .54 1 .450 0 1

15. Punjab 1 .27 0 .225 0 1

16. Rajasthan 4 1.08 1 .900 1 2

17. Sikkim 1 .27 0 .225 0 1

18. Tamil Nadu 1 .27 0 .225 0 1

19. AGMU 1 .27 0 .225 0 1

20. Uttar Pradesh 1 .27 0 .225 0 1

21. West Bengal 1 .27 0 .225 0 1

Total 36 8 5 23

Respondent no.1 further stated in the additional affidavit

that since as per the distribution made in the aforesaid

table, the total number of vacancies for general candidates

worked out to be 23 instead of 21 and total number of

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vacancies for OBC candidates worked out to be 8 instead of

10, 2 vacancies for general candidates had to be converted

to 2 vacancies for OBC candidates. The respondent no.1

has also stated in the additional affidavit that as the

relevant data for the last five years in respect of OBC

candidates was not available with the respondent on

28.05.1999 when the entire exercise of allocation was

completed and approved by the competent authority and the

data for four years, i.e. from the Civil Services

Examinations, 1994 to Civil Services Examinations, 1995,

was available, the earlier advice of the Department of

Personnel and Training in Annexure R-1 to the additional

affidavit of the respondent no.1 was followed and two

general vacancies from the first two States in the

alphabetical order, one from the Andhra Pradesh Cadre and

one from the Assam-Meghalaya Joint Cadre, were converted

to OBC vacancies and the result was that respondent no.4

was allocated to the OBC vacancy of Andhra Pradesh Cadre.

The Tribunal in its order dated 09.01.2004 accepted this

explanation of the respondent no.1 and rejected the

argument of the appellant that the respondent no.1 had

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arbitrarily taken a lower ranking candidate in preference to

high ranking general candidate while making the allocation

to the Andhra Pradesh Cadre. Aggrieved, the appellant filed

Writ Petition No.8072 of 2004 before the Andhra Pradesh

High Court and contended that despite availability of data

pertaining to OBC candidates for five years, the respondent

no.1 did not consider the same while making the allocation.

In the impugned order, however, the High Court held that

this apprehension of the appellant was factually without

any basis and did not find any fault with the order of the

Tribunal. In the impugned order, the High Court also took

the view that the appellant was required to implead all the

candidates of his batch of IPS, as respondents in the O.A. as

well as in the Writ Petition but had not done so and thus

relief could not be granted to the appellant. The High Court

further held in the impugned order that the allocation of the

appellant to the Manipur-Tripura Joint Cadre was intimated

to him by a letter dated 21.10.1999, but he filed the O.A. in

2001 and by the time the impugned order was passed, the

officers would have undergone attachment training and a

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wholesale or extensive review of the cadre allocation at a

belated stage would not be conducive to public interest.

4. Mr. Ranjit Kumar, learned counsel for the

appellant, submitted that this Court has held in R.

K. Sabharwal and Others v. State of Punjab and

O thers [(1995) 2 SCC 745] that the prescribed

percentage of reservation of posts for backward

classes cannot be varied or changed. He

submitted that in M. Nagaraj v. Union of India

[(2006) 8 SCC 212] a Constitution Bench of this

Court has further observed that the reservation

provision should not lead to excessiveness so as to

breach the ceiling limit of the reserved quota. He

submitted that the Secretary, Government of India,

Ministry of Personnel & Training Administrative

Reforms and Public Grievances, has in his letter

dated 31.05.1985 (hereinafter referred to as `the

letter dated 31.05.1985) laid down the broad

principles of allocation on the basis of roster

system which are to be followed while making

allocation of officers appointed to All India Services

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and a reading of these principles of allocation

would show that the vacancies are to be reserved

in various cadres according to prescribed

percentage and, therefore, the prescribed

percentage of reservation including that of OBC

cannot be exceeded. He submitted that in Union of

India v. Rajiv Yadav, IAS and Others [(1994) 6 SCC

38] this Court, after examining the principles of

cadre allocation in the letter dated 31.05.1985,

held that the "Roster System" ensures equitable

treatment to both the general candidates and the

reserved categories. He referred to the Chart

annexed as Annexure P/19 to show that the

percentage of OBC candidates allocated to the

Andhra Pradesh Cadre from Civil Services

Examination 1994 to 1998 was as high as 33%

which was far in excess of the 27% reservation in

favour of OBC. He vehemently argued that the

Chart in Annexure P/19 further shows that in

various other State cadres the total percentage of

OBC candidates allocated from the Civil Services

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Examinations of 1994 to 1998 was less than 27%

and, therefore, the respondent no.1 should not

have converted the vacancy for general candidate

in Andhra Pradesh Cadre to a vacancy for OBC

candidate. According to Mr. Ranjit Kumar, since

there is breach of the principles of allocation and

the roster system as laid down in the letter dated

31.05.1985 and the allocation of respondent no.4

to the Andhra Pradesh Cadre was in excess of the

27% quota for OBC, this is a fit case in which this

Court should quash the allocation of the

respondent no.4 and instead direct respondent

no.1 to allocate the appellant to the Andhra

Pradesh Cadre.

5. Mr. Mohan Parasaran, learned Additional Solicitor

General, on the other hand, submitted that the

impugned order of the Tribunal should not be

disturbed as it contains good reasons for not

interfereing in the allocation of the officers of the

1999 batch of IPS. He submitted that while

distributing the vacancies in an All India Service,

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the Central Government has to consider plurality

of choices and allocating two OBC vacancies to the

cadres of States which were first two in the

alphabetical order is one of the choices open to the

Central Government when relevant data for the

last five years in respect of the OBC candidates

was not available when the exercise of allocation

was completed and approved by the competent

authority. He submitted that the decision of this

Court in R. K. Sabharwal and Others v. State of

Punjab and Others (supra), cited by Mr. Ranjit

Kumar, relates to maintenance of roster for the

purpose of reservation of posts and may have

relevance for the appointment to the IPS but has

no relevance to allocation of members of the All

India Service to different cadres after their

appointment.

6. Mr. Neeraj Kumar Jain, learned counsel appearing

for respondent no.4, contended that the equitable

distribution of vacancies for general candidates

and reserved candidates is required to be ensured

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by the letter dated 31.05.1985 over a period of time

and not every time the allocation is made to a

cadre and thus the contention of the appellant that

the allocation of the respondent no.4 to the Andhra

Pradesh Cadre has not ensured such equitable

distribution is not correct. He further submitted

that in any case the allocations of respondent no.4

to the Andhra Pradesh Cadre and the appellant to

the Manipur-Tripura Cadre were made as far back

as in the year 1999 and the appellant filed the O.A.

after two years in 2001 and that too after he

accepted the allocation and the High Court rightly

held that the allocation made in the year 1999

could not be disturbed by a challenge to the

allocations in 2001. He finally submitted that

respondent no.4 has been working in the Andhra

Pradesh Cadre since 1999 and should not be

disturbed at this stage by this Court.

7. We have considered the submissions of the learned

counsel for the parties and we find that Rule 3 of

the IPS (Cadre) Rules, 1954 provides that each

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State and a group of States will have a State cadre

or Joint Cadre respectively of the IPS and Rule 5 of

the Cadre Rules provides 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. We further find that in Para 3 of

the letter dated 31.05.1985 the broad principles

which are to be followed for allocation on the basis

of roster system have been indicated by the Central

Government. Clauses (2) of Para 3, on which Mr.

Ranjit Kumar placed reliance, is extracted

hereinbelow:-

"(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."

It will be clear from Clause (2) of Para 3 of the letter dated

31.05.1985 that the vacancies for Scheduled Castes and

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Scheduled Tribes are to be reserved in the various cadres

according to the prescribed percentage 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. What

is, therefore, contemplated by Clause (2) of Para 3 of the

letter dated 31.05.1985 is that a roster for each cadre, with

vacancies earmarked for outsider and insider and for

general candidates and reserved candidates is maintained

and allocations of outsider, insider, general and reserved

candidates are made to these earmarked vacancies. It will

be further clear from Clause (2) of Para 3 that the vacancies

for the reserved categories are not to exceed the prescribed

percentage for the reserved category `in the various cadres'.

8. The case of the respondent no.1 in the additional

affidavit filed before the Tribunal was that in

accordance with the reservation provisions and the

roster points as explained by this Court in R. K.

Sabharwal and Others v. State of Punjab and

Others (supra), 36 candidates were selected to the

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IPS, out of whom 21 were general candidates, 10

were OBC candidates and 5 were SC/ST

candidates. These 36 candidates were to be

allocated to the different State and Joint Cadres

and were initially proposed to be distributed in

May, 1999 in the manner given in the Chart in

Para 3 of this judgment, but the authorities found

that by distribution of vacancies, only 8 out of 10

selected OBC candidates could be accommodated

in the different cadres and 23 instead of 21

selected general candidates would get

accommodated in the different cadres. It was,

therefore, necessary for the competent authority to

increase 2 vacancies to adjust 2 more OBC

candidates and reduce 2 vacancies proposed for

general candidates so that ultimately the 10 OBC

candidates could be allocated to 10 vacancies in

different cadres and 21 general candidates could

be allocated to 21 vacancies in different cadres.

The competent authority accordingly diverted two

vacancies for general candidates, one from the

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Andhra Pradesh Cadre and one from the Assam-

Meghalaya Joint Cadre, to vacancies for

accommodating two more OBC candidates selected

for appointment. The reason for choosing the

Andhra Pradesh Cadre and the Assam-Meghalaya

Joint Cadre for converting two vacancies for

general candidates to vacancies for OBC

candidates is that when the allocation was

finalized by the competent authority on

28.05.1999, relevant data in respect of OBC

candidates was available only for four years, i.e.

from Civil Services Examination, 1994 to Civil

Services Examination, 1997, but was not available

for the fifth year because allocation for the fifth

year on the basis of Civil Services Examination,

1998 was yet to be notified and ultimately got

notified in October, 1999. Respondent No.1 has

further explained in his additional affidavit filed

before the Tribunal that the Andhra Pradesh Cadre

and the Assam-Meghalaya Joint Cadre were

chosen for diversion of the two vacancies for

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accommodating two OBC candidates in accordance

with an earlier advice of the Department of

Personnel and Training annexed to the affidavit is

Annexure R-1 to follow the alphabetical order while

choosing the States for decrease or increase in

OBC vacancies in the absence of data for 5 years

in relation to OBC allocation.

9. We fail to appreciate how data for 5 years in respect of

allocation of OBC candidates was relevant for making the

allocation when Clause (2) of Para 3 of the letter dated

31.05.1985 required that a roster in each cadre with

vacancies for insider, outsider, general and reserved

candidates not exceeding prescribed percentage was

required to be maintained and allocations of candidates

selected in the All India Services were to be made in these

vacancies earmarked for insider, outsider, general

candidates or reserved candidates. As has been held by this

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

(supra), the roster system ensures equitable treatment to

both the general candidates and reserved candidates and

hence the roster system cannot be by-passed on some

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ground or the other which may result in unfair treatment to

either general candidates or reserved candidates in violation

of their right to equality under Articles 14 and 16(1) of the

Constitution.

10. Nonetheless, we find that the appellant was allocated

to the Manipur-Tripura Cadre on 27.07.1999 and was

intimated about such allocation by letter dated 02.10.1999.

Instead of challenging the allocations made in 1999 at the

earliest, the appellant filed the O.A. before the Tribunal

only in 2001 by which time the 36 candidates including the

respondent no.4, who had been selected and appointed to

the IPS on the basis of Civil Services Examination, 1998

and had been allocated to different cadres, had already

joined their respective cadres and undertaken training in

their respective States. The High Court thus held in the

impugned order that the wholesale or extensive review of

the cadre allocation at a belated stage was not conducive to

public interest. For granting relief to the appellant, the

Tribunal or the Court will have to direct the respondent

No.1 to undertake afresh the exercise of allocation in

accordance with the roster system as provided in the letter

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dated 31.05.1985 and allocate the 36 officers of the IPS

appointed on the basis of the Civil Services Examinations,

1998 and such an exercise will disturb the allocation of

several members of the IPS.

11. In our considered opinion, therefore, the High Court

was right in taking a view that no relief can be granted to

the appellant on the ground of delay on the part of the

appellant in moving the Tribunal. The appeal is therefore

dismissed. No order as to costs.

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

(R. V. Raveendran)

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

(A. K. Patnaik)

New Delhi,

July 19, 2011.