Delhi High Court
Ramandeep Choudhary vs Uoi & Ors. on 14 May, 2013
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: May 08, 2013
% Judgment Pronounced on: May 14, 2013
+ WP(C) 8623/2010
RAMANDEEP CHOUDHARY ..... Petitioner
Represented by: Mr.Subhro Sanyal, Advocate
with Mr.L.R.Khatana, Advocate.
versus
UOI & ORS. ..... Respondents
Represented by: Mr.R.V.Sinha, Advocate with
Mr.A.S.Singh, Advocate.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE V.KAMESWAR RAO
PRADEEP NANDRAJOG, J. & V.KAMESWAR RAO, J. (Court
Decision)
1. The challenge in this writ petition is to the order dated November 24,
2009 passed by the Central Administrative Tribunal, Principal Bench, New
Delhi (the Tribunal) dismissing O.A.No.934/2009 filed by the petitioner,
Ramandeep Chaudhary, who was aggrieved of the fact that having rank 84
in the Civil Services Examination (CSE) 2007 and belonging to the SC
Category he had been allotted Bihar Cadre instead of the Home Cadre of
Punjab.
2. The issue was debated before the Tribunal with respect to the
principles of Allocation of Cadre on the basis of roster system, enunciated
by DoPT as contained in a letter dated May 31, 1985, the broad principles
whereof would be as follows:-
"(i) 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 allocation, the
break-up of vacancies in a cadre between „outsiders‟ and
„insiders‟ will be calculated following the cycle of „outside‟,
„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 percentages will be added. Distribution of
reserved vacancies in each cadre between „outsider‟ and
„insiders‟ will be done in the ratio of 2:1. This ratio will be
operationalised by following a cycle „outside‟, „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 four 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 groups could be as follows:
Group I: Andhra Pradesh, Assam, Meghalaya, Bihar and
Gujarat.
Group II: Haryana, Himachal Pradesh, Jammu & Kashmir,
Karnataka, Kerala and Madhya Pradesh.
Group III: Maharashtra, Manipur-Tripura, Nagaland, Orissa,
Punjab, Rajasthan and Sikkim.
Group IV: Tamil Nadu, Union Territory, 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 cycles 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 Cadres 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 III
States, the third cycle with Group III States and the fourth
cycle with Group IV States and the fifth 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 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 part
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. Admittedly, the vacancy position in the Punjab Cadre pertaining to
the Indian Administrative Service was four as under:-
'Insider: 1 General, 1 SC
Outsider: 1 General, 1 OBC.'
4. The DoPT allocated the aforesaid four vacancies to the following
persons:-
(a) Sh.Suprit Singh Gulati, who was at merit position No.2 as per the
select panel and was a general category candidate and first preference was
for the State of Punjab i.e. the State to which he belonged, his allocation
was treated as against the one General 'insider' vacancy.
(b) Ms.Rupanjali, who was at merit position No.53 as per the select panel
and was a SC candidate and even her first preference was for the State of
Punjab i.e. the State to which she belonged, her allocation was treated as
against the one 'insider' SC vacancy.
(c) Sh.Amit Kumar, who was at merit position No.89 as per the select
panel and was a OBC candidate; and since as we would be noting the facts
hereinafter nothing turns with respect to Sh.Amit Kumar's allocation to the
Cadre of State of Punjab, neither parties disclosed the facts as to with
respect to which preference Amit Kumar was allocated the State of Punjab
against the one OBC 'outsider' vacancy.
(d) Sh.Joram Beda, who was at merit position No.223 as per the select
panel and was a ST candidate belonging to the State of Arunachal Pradesh,
he was allocated State of Punjab Cadre by treating the one General
'outsider' vacancy has to be allotted to an ST 'outsider' candidate.
5. With respect to the pleadings constituting the Original Application
filed by the petitioner, succinctly stated the grievance was that an 'insider'
reserved vacancy has been shifted as 'outsider' reserved vacancy (refer para
4.3 of the O.A. in which petitioner, inter alia, pleads : 'The applicant
discovered from the website of the respondent that the insider reserved
vacancy of Punjab Cadre has been shifted as outsider reserved vacancy and
seems that Sh.Joram Beda has been accommodated to Punjab Cadre as
outsider reserved SC/ST candidate.‟ The petitioner thereafter, as would be
evidenced from the pleadings in para 4.4 of the Original Application raised
issues pertaining to Ms.Rupanjali being allotted Punjab Cadre on the seat of
SC 'insider'. This is evidenced from the following pleadings in said para:
'Two vacancies of unreserved outsider and SC insider was filled by
Ms.Rupanjali and Sh.Joram Beda. However, it is not clear in what manner
and under which provisions of the policy of allocation of cadre as well as
the procedure prescribed; these two seats were filled; overlooking the claim
of the applicant on the seat of SC insider as the same claim was based on
the own policy decision as well as instructions of the respondent.‟
6. When filed, neither Ms.Rupanjali nor Sh.Joram Beda was impleaded
as respondents. Petitioner filed M.A.No.1338/2009 praying that
Ms.Rupanjali and Sh.Joram Beda be impleaded as respondents No.2 and 3,
but while so doing, he specifically stated in para 5 that he was not claiming
any relief against Ms.Rupanjali and/or Sh.Joram Beda; given the fact that in
case of eventual success of the petitioner their cadre may be reallocated; a
statement of fact in paragraph 5 of the application which was self
contradictory for the reason choice of a person if maturing into a cadre
allocation, if attempted to be upset would amount to claiming a relief against
the person.
7. However, from a meaningful reading of the decision dated November
24, 2009 passed by the Tribunal it is apparent that as it came to be
ultimately argued, petitioner fought the litigation with reference to the fact
that Ms.Rupanjali was allocated Punjab State Cadre for the reserved
'insider' vacancy. The primary contention of the petitioner before the
Tribunal was, as reiterated before us, that since Ms.Rupanjali had been
selected on her own merit she could not have been given the benefit of
belonging to SC category for allocation of cadre. In support of his
contention reliance was placed by the petitioner on the judgment of the
Gawhati High Court in WP(C) No.1574/2004 UOI vs. J.Syamla Rao & Ors.
decided on January 10, 2006.
8. With reference to the facts of J.Syamla Rao‟s case the Tribunal
distinguish the same in para 3 of its opinion, and suffice would be for us to
note that before us, said view taken by the Tribunal pertaining to J.Syamla
Rao‟s case not being applicable was not controverted.
9. But relevant would it be to note that the Tribunal took note of the fact
that the Gawhati High Court, probably for the reason it was not brought to
its notice, did not consider paragraph 14 of the 'Details of procedure to be
followed in the allotment of cadre to the officers of the All-India Services‟,
which reads as under:-
"14. In the case of candidates belonging to reserved category
such of those candidates who are recommended for
appointment against unreserved vacancy and get allocated to
the service against unreserved vacancy are first considered for
allocation to their home-States against unreserved insider
vacancy. If there is no unreserved insider vacancy, such
candidates are given the benefit of reservation if they get their
home state as reserved candidates."
10. The Tribunal relied upon the judgment of the Supreme Court reported
as (1996) 3 SCC 253 Ritesh R.Sah vs. Dr.Y.L.Yamul & Ors. wherein the
Supreme Court had held that a candidate belonging to a reserved category,
though selected in his own merit and wanting to avail benefit of reservation
would be entitled to the benefit of reservation for allocation. To put it
pithily, law recognizes a person to not only avail the benefit of merit but
additionally the privilege conferred by law as a consequence of belonging to
a reserved category. The Tribunal noted the observations of the Supreme
Court in Ritesh R.Sah‟s case (supra) to the effect that a student whose
entitled to be admitted on the basis of merit though belonging to a reserved
category cannot be considered to be admitted against seats reserved for
reserved category. But at the same time the provisions should be so worked
that it will not work out to the disadvantage of such candidates. The
Tribunal reinforced its view noting another decision of the Supreme Court,
pertaining to an OBC candidate who was selected on his own merit but was
held entitled for purposes of preferential allocation of service, to be
considered as an OBC candidate. The decision is reported as (2006) 4 SCC
550 UOI & Anr. vs. Satyaprakash & Anr.; and we highlight that it was the
principle of law which was declared in the said decision which was applied
by the Tribunal.
11. Concluding on the issue, in paragraph 7 of the opinion, the Tribunal
noted as under:-
"7. It is now well established that such allocation would
not exhaust the quota of reserved candidates. However, it is
based on the laudatory principle that the unreserved category
candidates, selected on the basis of reserved in and lower in
merit should not steal a march over more meritorious
reserved category candidates, though selected on their own
merit and treated as general category (unreserved)
candidates. Paragraph 14 of the Procedure followed in
allotment of cadre is in tune with the views of the Honourable
Supreme Court in this regard, as enunciated in Ritesh R.Sah
(supra). A reading of paragraph 14, as quoted in the
preceding paragraph 2 of this order, would show clearly that
Ms.Rupanjali, the second respondent, was correctly allocated
to the Punjab cadre."
12. It is the language used by the Tribunal in paragraph 7 of its opinion,
where the decision concludes, which creates a little confusion with reference
to the facts of the instant case. The facts of the instant case would highlight
that the petitioner, a candidate belonging to the SC community, is seeking a
place in the Cadre allocation to be housed in the Punjab State Cadre on the
strength of he being a SC candidate belonging to the State of Punjab and his
principal competitor was a similarly situated candidate Ms.Rupanjali who
was in merit position was much above the petitioner, as noted above
Ms.Rupanjali's merit position was 53 and that of the petitioner was 84.
13. At the heart of the issue is para 14 of the 'Details of procedure to be
followed in the allotment of cadre to the officers of the All-India Services‟,
contents whereof have been noted by us in para 9 above.
14. A perusal of para 14 would clearly reveal that it deals with a situation
where a reserved category candidate is the focus for being allotted a State
Cadre. It requires that at the first instance merit alone has to be taken into
account, with reference to the preference, and if on the strength of merit,
upon availability of an unreserved 'insider' vacancy in the State to which the
candidate belongs, allocation against the unreserved 'insider' vacancy has
to follow. But, if there is no unreserved 'insider' vacancy and there exists
an 'insider' reserved vacancy, said candidate would be entitled to the same
and would have preference over another candidate who is lower in the merit
position but is also claiming a preferential right to Home State Cadre
allocation. This is evident from the fact that the first sentence of the
paragraph requires that a case of candidates belonging to reserved category
requires then to be first considered for allocation to their Home State against
unreserved 'insider' vacancy and the second sentence deals with when no
unreserved 'insider' vacancy is available, entitlement of said candidate to be
considered giving benefit of reservation as a reserved candidate for Home
State Cadre allocation.
15. Suffice would it be for us to note that keeping in view his merit
position and entitlement to be considered only on the strength of merit,
Sh.Suprit Singh Gulati scored a march over Ms.Rupanjali when cadre
allocation was made pertaining to the one general 'insider' vacancy in the
State of Punjab. The other 'insider' vacancy, being of SC, it necessarily had
to be allotted to Ms.Rupanjali who was next in merit, belonging to the State
of Punjab, in terms of paragraph 14 of the 'Details of procedure to be
followed in the allotment of cadre to the officers of the All-India Services‟.
16. On her being allotted the one 'insider' SC vacancy, no other vacancy
remained for 'insider', to be allotted to the petitioner herein who admittedly
is lower in merit then Ms.Rupanjali.
17. During the course of arguments before us, the learned counsel for the
petitioner at the outset submitted that the petitioner is not challenging the
allocation made to Ms.Rupanjali against one 'insider' vacancy reserved for
SC candidate. His primary challenge, during the course of the submissions
before us, was the shifting of one general 'outsider' seat to one 'outsider'
SC/ST seat. We may state here from the perusal of the impugned order that
such a submission was never made during the course of the arguments
before the Tribunal.
18. We may note that a submission which was not taken before the
Tribunal would be impermissible to be taken at the appellate stage. This we
say for the reason that since such a submission was not made, there was no
occasion for the Tribunal to consider and deal with the same. Even
otherwise, the submission which has been made by the learned counsel for
the petitioner is primarily on the basis of the averments made by the official
respondents in their reply to the OA filed before the Tribunal. We intend to
quote the relevant lines to understand and deal with the submissions as has
been made now before us:-
"In Punjab, the Insider SC/ST vacancy has been converted
to Outsider SC/ST vacancy and Outsider UR vacancy has
been converted to Insider UR vacancy......
(page 175 of the writ paper book).
.........In Punjab, this year (CSE-2007) the 'Insider' SC/ST
vacancy has been converted to an 'Outsider' SC/ST vacancy
and 'Outsider' Unreserved vacancy has been converted to
'Insider' Unreserved vacancy. Therefore, the contention of
the applicant is not proper and without merit......"
(page 184 of the writ paper book)
19. It is a new case set up by the petitioner. In his representation dated
December 18, 2008 addressed to the Secretary, Ministry of Personnel and
Public Grievances and Pension, Department of Personnel and Training,
North Block, New Delhi, his grievance primarily was against Ms.Rupanjali
being allocated the SC 'insider' vacancy in the Punjab State Cadre as
according to him Ms.Rupanjali who had appeared in the CSE 2005
Examination, she declared herself to be a general category candidate
whereas in the CSE-2007 Examination she projected herself as a SC
candidate even though she was selected in the General Category. The
petitioner has not whispered a word about shifting of one general 'outsider'
vacancy to 'outsider' ST vacancy. Even otherwise, there is no
whisper/challenge to allocation of Punjab State Cadre to Sh. Joram Beda.
Now the challenge by the counsel is clearly an afterthought. In any case, the
averments as made by the official respondents in their reply would not better
the case of the petitioner. It is not in dispute that the total insider vacancies
in the Punjab State Cadre for the CSE-2007 Examination were two. It is
also not in dispute that Ms.Rupanjali had been given the 'insider' vacancy
because of the fact that she is a SC candidate. Both the vacancies having
been filled up by persons who are above in the merit, the petitioner cannot
have any grievance. Any effect because of any change in the 'outsider'
vacancy would not have a bearing insofar as cadre allocation of the
petitioner is concerned as the said vacancies were meant to be filled by
'outsiders' and the said vacancies having been filled by 'outsiders' the
petitioner cannot have any grievance. In other words, the petitioner claim
can be against 'insider' vacancies and not 'outsider' vacancies.
20. The learned counsel for the petitioner during the course of his
submissions relied upon the judgment of the Supreme Court reported as
(2011) 7 SCC 385 C.M.Thri Vikrama Varma vs. Avinash Mohanty & Ors.
and would contend that the petitioner has a right to be allocated to a State
of his choice and cannot be infringed.
21. We do not see any right of the petitioner has been violated in not
being allocated to his Home State of Punjab. The facts clearly show that the
petitioner and the other candidates got a fair and just treatment at the time of
allocation of cadre. We do not see any infirmity in the conclusion of the
Tribunal dismissing the OA filed by the petitioner seeking allocation to
Punjab State Cadre.
22. It is apparent that strength is being taken by the petitioner from the
pleadings of the respondent in the reply filed to the Original Application,
which we have extracted in paragraph 18 above. The respondent has clearly
written that the 'insider' SC/ST vacancy has been converted to an 'outsider'
SC/ST vacancy and 'outsider' unreserved vacancy has been converted to
'insider'. During the course of arguments as the position emerged, this
pleading is incorrect. It appears to be the result of the author, imparting ink
to the thought of the deponent of the affidavit and hence a disconnect.
What has actually happened is that Rupanjali, who as per her merit position
was entitled to be allocated to the Indian Administrative Service, took
additional benefit of being an SC, which was her right, and the result was
that in the State of Punjab the SC insider vacancy went to a candidate who
was also a meritorious candidate. In their wisdom the respondent, probably
to ensure an equal representation in the Indian Administrative Service to all
categories of candidates, converted one out of the 4 vacancies to outsider
ST. We are not expressing any opinion on the correctness of what the
respondent has done for the reason petitioner was competing for the one
insider SC vacancy allocated to the State of Punjab and needless to state
Rupanjali would be entitled to the same.
23. The writ petition is accordingly dismissed but without there being any
orders as to costs.
(PRADEEP NANDRAJOG) (V.KAMESWAR RAO)
JUDGE JUDGE
MAY 14, 2013
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