Sonali Giri vs Union Of India & Anr.
2011 Latest Caselaw 3738 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    Writ Petition (Civil) No. 5546/2011


%                               Date of Decision: August 4, 2011

Sonali Giri                                       ....Petitioner
                     Through    Mr. Rohit Madan, Advocate.

                     VERSUS

Union of India & Anr.                              .....Respondents
                  Through

CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA

                                ORDER

%                              04.08.2011
SANJIV KHANNA, J.

The petitioner Sonali Giri is an IAS probationer and had secured

42nd rank in Civil Services Examination, 2009. Her grievance is that she

has been allotted Gujarat cadre instead of Haryana cadre, which was

her second preference. She challenged the Cadre Allocation Policy

dated 21st February, 2008 in OA No. 2782/2010 before the Central

Administrative Tribunal, Principal Bench, New Delhi (Tribunal, for short)

on the ground that she is an OBC candidate and even if she has

qualified as an unreserved candidate, she should be allocated Haryana

Cadre as an outsider OBC. The contention of the respondent that the

petitioner has been treated as a general candidate and, therefore, not

eligible and entitled to allocation as an OBC category candidate has

been accepted by the Tribunal in the impugned decision dated 2nd June,

2011.

2. Learned counsel for the petitioner has submitted that the Cadre

Allocation Policy is contrary to the decision of the Supreme Court in

Union of India vs. Ramesh Ram and Ors., Civil Appeal No. 4310-

4311/2010, in which it has been held that a reserved category

candidate selected on merit cannot be denied benefit of a better

service which she may be entitled to as a reserved category candidate.

The following operative portion of the judgment has been quoted by

the Tribunal in the impugned order and reads:-

"i) MRC candidates who avail the benefit of Rule 16(2) and adjusted in the reserved category should be counted as part of the reserved pool for the purpose of computing the aggregate reservation quotas. The seats vacated by RC candidates in the General Pool will be offered to general category candidates.

ii) By operation of Rule 16(2), the reserved status of an MRC candidate is protected so that his/her better

performance does not deny him of the chance to be allotted to a more preferred service.

iii) The amended Rule 16(2) only seeks to recognize the inter se merit between two classes of candidates i.e. a) meritorious reserved category candidates b) relatively lower ranked reserved category candidates, for the purpose of allocation to the various Civil Services with due regard for the preferences indicated by them.

iv) The reserved category candidates "belonging to OBC, SC/ST categories" who are selected on merit and placed in the list of General/Unreserved category candidates can choose to migrate to the respective reserved category at the time of allocation of services. Such migration as envisaged by Rule 16(2) is not inconsistent with Rule 16(1) or Articles 14, 16(4) and 335 of the Constitution."

The term MRC in the above quoted portion stands for candidates selected on merit.

3. Rules 6 and 9 of the Cadre Allocation Rules, 2008, read as under:-

"6. A candidate shall be allocated to his Home cadre or any other cadre, as the case may be, on the basis of his merit, preference and vacancy available at his turn in his category."

............

9. A reserved category candidate selected on general standards shall be eligible for allocation against the available insider unreserved vacancy as per his merit and preference. But if he cannot be allocated against such vacancy, for he is lower in rank as compared with other general category candidates, he shall be considered for allocation as per his merit and preference against the available insider vacancy office category and, in case found eligible, adjusted by exchanging insider vacancy in his category into insider UR vacancy and outsider UR vacancy into outsider reserved vacancy of his category. This is to ensure that such candidate is not placed at disadvantageous position vis-à-vis other candidates of his category in the merit list below him."

4. It may be noted that Rule 9 was amended subsequently by O.M.

dated 21st April, 2011 and the said amended rule cannot be made

applicable to the selection made in 2009. The amended rule is not

retrospective.

5. The Tribunal, in our opinion, has rightly held and observed that

the aforesaid Rules do not run counter to the judgment and direction

given by the Supreme Court in Ram Ramesh's case (supra). The

judgment of the Supreme Court dealt with entirely a different aspect

i.e. whether a reserved category candidate who qualifies the Civil

Service examination on merits as a general category candidate can be

denied service of her choice. It has been held that a reserved category

candidate who is otherwise selected on merit in general list, cannot be

denied service of her choice which she will be entitled to if she is

selected as a reserved category candidate. A candidate when she

belongs to reserved category, is entitled to a service of her choice and

cannot be denied right to choose a service merely because she has

performed well and has been otherwise selected on merits in the

general category. This would deprive and deny her a service which she

wants to adopt and work in. This is what was directed by the Supreme

Court in the directions given above. The choice of State cadre is a

different aspect and has to be made in terms of the Cadre Allocation

Policy applicable at a given point of time. Selection and choice of

service has a different connotation. The petitioner has been selected

and appointed as a general category candidate and accordingly

allocated the State of Gujarat as per the Cadre Allocation Rules, 2008.

Rules 6 and 9 quoted above, cannot be categorized as arbitrary or

discriminatory in nature.

6. It may be noticed here that the petitioner had alleged that one

Mr. Pankaj with 83rd all India rank and also an OBC has been allocated

Haryana cadre and she could be allocated the Haryana cadre in his

place. However, she had not made him a party to the original

application and, therefore, the Tribunal has rightly held that the said

Mr. Pankaj should have been made a party and the allocation of cadre

to the said person should have been challenged. Subsequent attempt

by the petitioner to implead him after lapse of more than one year,

when both the candidates had settled in their respective cadres, was

rightly not permitted.

7. In view of the aforesaid discussion, we do not find any merit in

the writ petition and the same is dismissed in limine.

SANJIV KHANNA, J.

CHIEF JUSTICE August 04, 2011 kkb