Delhi High Court
Uoi & Ors. vs Abhishekh Dixit on 29 October, 2013
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: August 06, 2013
Judgment Delivered on: October 29, 2013
+ W.P.(C) 7290/2008
UOI & ORS. ..... Petitioners
Represented by: Mr.Rakesh Tiku, Sr.Advocate with
Mr.Prakash Gautam and Mr.Vivek
Ojha, Advocates.
versus
ABHISHEKH DIXIT ..... Respondents
Represented by: Mr.M.Shoeb Alam, Advocate for
R-1.
Mr.Arjun Pant, Advocate for R-4.
Mr.Anil Mittal, Advocate with
Mr.Anuj Kumar Ranjan, Advocate
for R-5.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE V.KAMESWAR RAO
PRADEEP NANDRAJOG, J.
1. The above captioned writ petition challenges the order dated
January 03, 2008 passed by the Central Administrative Tribunal allowing
OA No.1920/2007 by quashing the order dated June 04, 2007 issued by
the Director, SVP, National Police Academy to the extent it concerned
the respondent and directed the Ministry of Home Affairs (MHA) to
consider the allocation of cadre to the respondent in accordance with the
principles laid down in the letter dated May 31, 1985 and to pass a
detailed speaking order regarding the same.
2. Before delving into the factual matrix, we note the policy
pertaining to allocation of state cadres to the candidates who successfully
clear the Civil Services Examination (CSE). We highlight that we would
be concerned with the situation existing prior to April 10, 2008 for the
reason on April 10, 2008 a new Cadre Allocation Policy has come into
force and in the writ petition we are concerned with the cadre allocation
pertaining to CSE-2005.
3. From the year 1966 till the year 1977, a roster system was used to
allocate State cadre to those who cleared Civil Services Examination
and were allocated a Group-A or a Group-B service. The same was
changed in the year 1978 with the introduction of the Limited Zonal
Preferences system. Since certain deficiencies were noted in the working
of the Limited Zonal Preferences system, in the year 1985 the previous
roster system was re-adopted with certain modifications. In said regard,
on May 31, 1985, a letter was sent by Sh.K.Ramanujam, Secretary,
Ministry of Personnel and Training to Sh.T.N.Seshan, Secretary,
Department of Forest and Wildlife detailing the new procedure adopted.
It is the common case of the parties that the principles of cadre allocation
stand enunciated in the said letter dated May 31, 1985 and thus we note
the same. The same reads as under:-
" GOVERNMENT OF INDIA MINISTRY OF PERSONNEL
& TRAINING ADMINISTRATIVE REFORMS AND PUBLIC
GRIEVANCES AND PENSIONS.
SECRETARY
D.O.No.13013/5/84-AIS(I)Dated 30/31 May, 1985
Dear Shri Seshan,
As you are aware, the allocation of the direct
recruits to the All India Services including the Indian
Forest Service is being made in accordance with the
„Limited Zonal Preferences System‟ from 1978
examination and onwards. In this system all the
cadres/joint cadres were divided into zones and the
candidates were given the opportunity to indicate their
preferences one-wise and also for two cadres in each
zone. The allocation was being made keeping in view the
rank and preferences of the candidates subject to
allocation of vacancies in each cadre between „insiders‟
and „outsiders‟.
2. Our experience has shown that the limited zonal
preferences system of allocation suffers from a number of
deficiencies. Under this system there is only very limited
movement of candidates from one part of the country to
another across several States and even this limited inter-
regional movement of candidates takes place only in
respect of a few low ranking candidates. Another
drawback of the system is that „outsiders‟ getting
allocated to a State are mostly from a neighbouring State.
3. Keeping in view the deficiency that is noticed in
the working of the limited zonal preferences system it has
been decided with the approval of the Prime Minister that
from 1985 batch onwards (1984 examination candidates)
we should revert back to the roster system which was the
system of allocation from 1966 to 1977 examination with
certain modifications. The broad principles of allocation
on the basis of roster system would be as follows:-
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
allocation, the break-up of vacancies in a cadre
between „outsiders‟ and „insiders‟ will be
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 percentages will be added. Distribution of
reserved vacancies in each cadre between
„outsiders‟ and „insiders‟ will be done in the ratio
of 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
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 II
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.
5. Since the Prime Minister has already approved the
roster system of allocation as indicated above, I would
request you to ensure that this system of allocation is
followed while allocating the candidates appointed to the
Indian Forest Service on the result of the Indian Forest
Service Examination, 1984 and onwards.
With regards
Yours sincerely,
Sd/-
(K.RAMANUJAM)
Shri T.N.Seshan,
Secretary
Department of Forests & Wild Life,
New Delhi"
4. The policy aforenoted contained in the letter dated May 31, 1985
was held capable of being applied for cadre allocation by the Supreme
Court in the decision reported as (1994) 6 SCC 38 Union of India v. Rajiv
Yadav IAS. The Supreme Court held :-
"5. We have given our thoughtful consideration to the
reasoning and the conclusions reached by the tribunal. We
are not inclined to agree with the same. Rule 5 of the Cadre
Rules provides that the allocation of the members of the IAS
to various cadres shall be made by the Central Government
in consultation with the State Government or the State
Governments concerned. Sub-rule (2) of Rule 5 further
provides that a cadre officer can be transferred from one
cadre to another. When a person is appointed to an 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. 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 not obligatory for the
Central Government to frame rules/regulations or
otherwise notifythe principles of allocation" adopted by the
Government as a policy. The letter dated May 31, 1985
shows that the Central Government has always been having
guidelines either in the shape of "limited zonal preferences
system" or "Roster System" for the exercise of its discretion
under Rule 5 of the Cadre Rules. Simply because the
principles of allocation called "Roster System" were not
notified, it is no ground to hold that the same are non-est
and the Central Government cannot follow the same. In any
case the "Roster System" has stood the test of time. It was
operative during the years 1966 to 1977 and again it is
being followed from 1985-batch onwards. The fact that the
"Roster System" is being followed in practice by the Central
Government for all these years, is in itself a sufficient
publication of its principles." (emphasis supplied)
5. Before noting in detail the respondent's challenge to his cadre
allocation we briefly note the process of cadre allocation as in vogue.
6. The States and the Union Territories were divided into 21
cadres/joint cadres with each State constituting a separate cadre except
for the three joint cadres; namely: Assam-Meghalaya, Manipur-Tripura
and AGMUT (Arunachal Pradesh, Goa, Mizoram and Union Territories).
We highlight that when the policy was applied in the year 2006 the cadres
became 24.
7. The first stage in the cadre allocation is to divide the vacancies
arising in each cadre amongst general category candidates and SC/ST
candidates on the basis of the prescribed percentages for reservation.
Thereafter to classify the candidates who had successfully cleared the
Civil Services Examination into two groups/categories: (i) insider; and
(ii) outsider. The insider being those candidates who opt for their home
State to be allotted to them. Of logic would be that outsider would be
those who could not be posted in their home State.
8. Thereafter the vacancies for each category i.e. General and SC/ST
category are to be divided between the 'insider' and 'outsider', in the
ratio of 2:1 and in order to ensure that this ratio is maintained, the first
vacancy goes to an 'outsider'; the second vacancy goes to an 'insider' and
the third once again goes to an 'outsider'. This cycle is repeated.
9. Thereafter a list of candidates allotted to the service is prepared in
order of merit, indicating their home State and their willingness to be
allotted their home State and each candidate is assigned a serial number
in the order of merit in the said list.
10. The 'insider' candidates are then allotted the cadre, followed by the
'outsider' candidates.
11. This requires the first step to be taken. The same is to allocate the
'insider' candidate(s) according to their rank and subject to they opting
for being allotted their home State. The allocation of 'insider' is done
primarily in accordance with paragraphs 3(3), 3(4)(ii) and 3(4)(iii) of the
letter dated May 31, 1985. If there are two or more candidates who as per
their serial number have to occupy the same cycle, they should be treated
as going to the particular state cadre in two successive cycles.
12. At the first stage the insider available vacancy, if at all is filled up
by those who opt for their home State. This means that with reference to
the merit position the process is repeated at the first cycle, the second
cycle and so on. As such only one candidate is allotted per State cadre
per cycle, meaning thereby that if one insider candidate has been
allocated a State cadre at a cycle then even if an outsider vacancy exists
in that State cadre no 'outsider' candidate can be allotted to that cadre in
the particular cycle and automatically the next available 'outsider'
vacancy in the succeeding cadre is allotted to the candidate against that
serial number.
13. The next stage, after the allocation of all insider candidates is
completed, is the allocation of the remaining candidates i.e. the 'outsider'
candidates. They are allocated to a State (not being their home state), in
serial order in successive cycles.
14. But, it has to be kept in mind that when the policy was issued on
May 31, 1985 there was no reservation for OBC Candidates, a special
category entitled to the benefit of reservation which was recognized for
the first time and implemented in the year 1993.
15. We note the facts.
16. The respondent appeared at the CSE-2005 and cleared the same
obtaining rank No.107 in the merit list which became rank No.27 with
reference to the respondent being allotted the Indian Police Service. He
was a general category candidate and had opted for the home State insider
vacancy for the State of Rajasthan. But, he was allotted the State cadre of
Tamil Nadu.
17. The respondent filed a representation dated March 09, 2007 to the
Director, SVP National Police Academy questioning the cadre allocation
and prayed that the same was contrary to the principles enunciated in the
letter dated May 31, 1985. It was his case that one Sh.Dhrubjyoti Dey
and one Sh.Patil Sachin Ashok at serial No.38 and 44 respectively who
adopted for their home state cadre i.e. West Bengal and Maharashtra
respectively ought to have been allotted their home cadre at the second
cycle. He highlighted that for the year in question the first cycle of cadre
allocation commenced from Group-II States and thus outsiders in the
State of Maharashtra and West Bengal ought to have been allotted to
outsider candidates in the first cycle itself i.e. from serial Nos.1 to 24.
The respondent highlighted that as per paragraph 4(5) of the letter dated
May 31, 1985, at the first cycle, State cadres which have not been allotted
insider candidates should be allotted one candidate each in the order of
merit from amongst the outsider candidates and thus the State of
Maharashtra and West Bengal ought to have been allotted an outsider
candidate at the first cycle.
18. The said representation was rejected vide order dated June 04,
2007; operative part whereof reads as under:
"Keeping in view the above position of the principles of
Cadre Allocation, Sh.Dhrubjyoti Dey, the only insider
candidate who had qualified the Civil Services
Examination 2005 from West Bengal was allocated to the
IPS cadre of West Bengal as a general insider candidate
in the first cycle. Likewise, Sh.Patil Sachin Ashok, the
first available insider candidate who had qualified the
Civil Services Examination 2005 from Maharasthra was
allocated to the IPS cadre of Maharashtra as a general
insider candidate in the first cycle."
19. Aggrieved by the same, the respondent approached the Central
Administrative Tribunal, filing OA No. 1920/2007, seeking a declaration
that the cadre allocation of the IPS officers of the 2006 batch i.e.
pertaining to CSE-2005 was illegal being contrary to the cadre allocation
policy and prayed that the order dated June 04, 2007 rejecting his
representation be quashed and that a direction be issued that cadre re-
allocation be carried out as per the principles laid down in the letter dated
May 31, 1985.
20. Before the Tribunal, the respondent urged the same grounds as he
had urged in his representation; this time essaying in detail the alleged
violation of the cadre allocation policy as stipulated in the letter dated
May 31, 1985. The same reads as under:-
12. The first outsider candidate on the serial order list
(Annexure A-6) is serial no.1 Jatin Narwal, who belongs to
Haryana State. Haryana has no insider vacancy, the next cadre
in order is Himachal Pradesh, where likewise there is no
outsider vacancy, as Kashmir cadre since the first outsider
vacancy is available in that cadre. However he has been
allocated to Jharkahand. This is the first anomaly in the
allocation.
13. The next outsider candidate is serial no.2 (Ms. Garima
Malik) belonging to the state of Haryana. Haryana has no
insider vacancies therefore she should be allocated to the next
available outsider vacancy that falls vacant in the Jharkhand
cadre. However the said candidate has been allocated to the
Jammu & Kashmir cadre. This is the next anomaly in the
allocation.
14. The next outsider candidate is at serial no.4 (Shashank
Anand) who belongs to Delhi and has been rightly allocated to
Haryana which was the first outsider vacancy available in the
first cycle.
15. The next outsider candidate is serial no.7 (Abhshek Goyal)
who belongs to Punjab and has been rightly allocated to
Karnataka.
16. At serial no.8 is the next outsider candidate, Akash Jindal,
who belongs to Punjab and has been rightly allocated to
Kerala.
17. Ms.Remya Roshni who is placed at serial no.9 in the list
(belongs to Kerala state) and has been allocated to the
Manipur-Tripura Joint Cadre. This allocation is also erroneous
as the next available outsider vacancy after Kerala cadre was
available in the Maharashtra cadre. However the vacancy in
the Maharashtra cadre has been wrongly filed by the
respondents by allocating it with the insider candidate at serial
no.44 (Patil Sachin Ashok) who belongs to Maharashtra state.
17.1 The applicant submits that the error in allotting Patil
SAchin Ashok in the first cycle despite having serial no. falling
between 25-48 is the pivotal source of the anomalous
allotments in the list. The said allotment is in violation of rule
no.7. It is humbly submitted that the said candidate could not
have been allocated in the first cycle because the first cycle
ends at serial no.24. The relevant extract of Rule 7 is
reproduced below:
"7. The candidates between ... SI. No.25 and 48 who
can be allocated to their home states are slotted in the
second cycle (25-48) and so on."
18. The next outsider candidate is available at serial no.11
(Ms.Roopa M belonging to Karnataka state). Manipur-Tripura
Joint Cadre has the next available outsider vacancy. However
the said candidate has been allotted the Nagaland cadre
because the outsider vacancy in Manipur-Tripura joint cadre in
that cycle has wrongly been exhausted due to the incorrect
allocation explained in paragraph 17 above. The next outsider
candidate at serial no.12 (Sriman Shukla who belongs to M.P.)
should have been rightly allotted to Nagaland cadre but has
wrongly been allocated to the Tamil Nadu cadre due to the
incorrect allocation explained in para 17 above.
19. The allocation of candidates at serial no.13 (Sweety
Agarwal who belongs to Delhi state) and 14 (Ramesh Kumar
who belongs to Haryana state) requires explanation on the
basis of rule no.4 (v) of the policy letter dated 31.05.1985
marked as Annexure A-1 above. The relevant portion of the
said rule is reproduced below for ready reference.
"4(v).... 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."
The above stated rule provides for the swapping/interchange of
the cadre in a peculiar situation of an outsider candidate
(being allocated to his/her home cadre) with the cadre of the
candidate next below.
Sr. No.13 was being allocated the AGMUT cadre (albeit
incorrectly) and such her cadre would have been the same as
her home state. Sr. No.14 (Ramesh Kumar who belongs to
Haryana) was being allocated Uttrakhand.
However in the light of rule 4(v) mentioned above their cadres
were swapped/interchanged and consequently sr. No.13 was
allocated Uttarakhand and Sr. No.14 was allocated AGMUT
Cadre. The rule 4(v) to the case of sr. Nos.13 and 14 was that
though serial no.13 remained to have been wrongly allocated
the Uttarakhand cadre, serial no.14 (Ramesh Kumar) was
allocated the correct cadre as per the de-jure accurate list.
20. The candidate at serial no.18 (Rajendra Narain Dash
who belongs to Orissa) is the next outsider candidate. He
should have been allocated to the Uttarakhand cadre as per the
rules, but he has wrongly been allocated to the Chhattisgarh
Cadre due the anomaly explained in paragraph 17 above.
21. The case of Ms.Sonia Khokkar (who belongs to Delhi) at
serial no.20 is another amomalous case requiring explanation
similar to that given in para 17 above. It is pertinent here to
note that once again the respondents have ignored rule no.7 as
a result of which the said candidate who should have been
allotted the West Bengal cadre (since the next available
outsider vacancy after Uttarakhand would have been in West
Bengal cadre) has been allocated to the Maharashtra cadre.
21.1 The said anomaly has arisen since the candidate at serial
no.38 (Dhrubjyoti De who belongs to West Bengal) was
allocated the West Bengal cadre in the first cycle itself. As a
result the first insider vacancy in the West Bengal cadre having
been wrongly allocated in the first cycle by an insider
candidate at sr. no.38 (who ought to have been slotted as an
insider candidate only in the second cycle) has resulted in
exhausting the vacancy rightly due for allocation of an outsider
candidate in the first cycle in that cadre."
21. Per contra, the petitioners contended that the allocation of cadres
was the sole prerogative of the Central Government under Rule 5(1) of
the Indian Police Service Cadre Rules, 1954. Petitioners further
contended that as per the law laid down in the decision reported as (1994)
6 SCC 38 Union of India & Ors. v. Rajiv Yadav & Ors., a person being
appointed to an All India Service could not claim allocation to a State of
his choice and that the Central Government was not under any obligation
to give an option to the concerned officer for allocation to a particular
cadre.
22. The Tribunal noted the fact that no Rules in respect of cadre
allocation had been notified by the Government of India but certain
principles were followed and presently the principles laid down in the
letter dated May 31, 1985 were in vogue.
23. Regarding the challenge raised by the respondent to the cadre
allocation for those who were allotted Indian Police Service pursuant to
CSE-2005, the Tribunal has held as under:-
"The allocation between „insider‟ and „outsider‟ has to be
made as per paragraph 4 of the letter. In 1985, there were
21 cadres/Joint cadres. After creation of three more states
in 2001, the number of cadres/Joint cadres has become
24. Therefore, the cycles will be 1-24, 25-48, 49-72 and so
on instead of 1-21, 22-42, 43-63 and so on mentioned in
paragraph 4(ii). In the Instant case, paragraph 4(v) of the
letter of 31.05.1985 is important. It is not disputed that
both Dhrubjyoti De and Patil Sachin Ashok are below
serial number 24 in the merit list. They should, therefore,
have been considered in the second cycle. Had they been
considered in the second cycle, one „outsider‟ candidate in
order of the merit would be placed in that cadre and that
would have altered the list of cadre allocation. The
Respondents have made the following statement in
paragraph 4 of the impugned order at Annex A-8, by
which the Applicant‟s representation has been rejected:
"Keeping in view the above position of the Principles
of Cadre Allocation, Shri. Dhrubjyoti De, the only
insider candidate who had qualified the civil
services examinations 2005 from West Bengal was
allocated to the IPS Cadre of West Bengal as a
General insider candidate in the first cycle.
Likewise Shri Patil Sachin Ashok, the first available
insider candidate who had qualified the civil
services examination 2005 from Maharashtra was
allocated to the IPS cadre of Maharashtra as a
general insider candidate in the first cycle."
This, in our view, is contrary to the procedure indicated in
paragraph 4 of the letter."
24. As regards the law declared in the decision in Rajiv Yadav‟s case
(supra), the Tribunal noted that it did not advance the cause of the
petitioners, instead it favoured the respondent's contention that the
principles enunciated in the letter dated May 31, 1985 had the force of
Rules and had to be followed. The Tribunal also noted Rule 5 of the
Indian Police Service Cadre Rules, 1954 which reads as under:
"5. Allocation of members to various cadres.-
(1) The allocation of cadre officers to the various cadres
shall be made by the Central Government in consultation
with the State Government or the State Government
concerned.
(2) The Central Government may, with the occurrence of
the State Government concerned transfer a cadre officer
from one cadre to another cadre."
25. Observing that the Central Government cannot have an unfettered
and arbitrary right to allot cadres to candidates clearing the CSE and had
to follow the principles articulated in the letter dated May 31, 1985 while
exercising discretion under Rule 5(1) the Original Application filed by
the respondent was allowed issuing the direction that only with respect to
the respondent cadre allocation be re-worked out as per the policy
contained in the letter dated May 31, 1985 and as clarified by the
Tribunal.
26. During arguments of the writ petition a very peculiar situation
arose. Pertaining to allocation of State cadre to those who were allotted
the Indian Administrative Service, DoPT, the cadre controlling
department for IAS was interpreting the letter dated May 31, 1985 in a
manner which was projected by the respondent and which manner was
upheld by the Tribunal but the Ministry of Home Affairs, the cadre
controlling authority for IPS was interpreting the same in a diametrically
opposite direction.
27. It is apparent that taking a cue from paragraph 3(4)(ii) of the letter
dated May 31, 1985 and the phrase/sentence: 'Since the number of
cadres/joint cadres is 21, the cycles will be 1-21, 22-42, 43-63 and so
on‟,(cycles now to be 1-24, 25-48 and so on) and applying the same, the
DoPT has been following the procedure which we may understand, and
since during arguments learned counsel for the respondents had the cadre
allocation for IAS at the CSE-2007, with reference to the cadre allocation
for IAS at said CSE-2007. 110 candidates had to be allotted the Indian
Administrative Service. The chart of allocation is as under:-
S.No. Cadre Insider Outsider Total Unreserved OBC SC/ST
U O S U O S
1. Tamil Nadu 1 1 0 2 1 1 6 18 49 55 - - - 27 85 - - 26 - - -
2. AGMUT 1 1 0 3 1 2 8 6 51 58 66 - - 73 83 - - 38 105 - -
3. Uttarakhand 0 0 0 1 1 0 2 1 - - - - - 5 - - - - - - -
4. Uttar 2 1 1 4 1 3 12 22 23 59 68 98 111 20 84 - - 86 107 108 109
Pradesh
5. West 1 1 0 2 0 1 5 17 50 60 - - - 21 - - - 43 - - -
Bengal
6. Andhra 1 0 0 1 0 0 2 16 25 - - - - - - - - - - - -
Pradesh
7. Assam - 1 0 1 1 2 0 5 3 31 - - - - 28 78 - - 63 - - -
Meghalaya
8. Bihar 1 0 0 2 1 1 5 7 36 61 - - - 46 - - - 74 - - -
9. Chhatisgarh 1 0 1 2 1 0 5 9 32 64 - - - 34 - - - 87 - - -
10. Gujarat 1 0 0 2 1 1 5 12 33 65 - - - 44 - - - 88 - - -
11. Haryana 1 0 0 0 1 1 3 4 - - - - - 56 - - - 89 - - -
12. Himachal 0 0 0 0 1 1 2 - - - - - - 57 - - - 92 - - -
Pradesh
13. J&K 0 0 1 1 0 1 3 - 47 - - - - - - - - 94 102 - -
14. Jharkhand 1 0 0 1 1 1 4 8 35 - - - - 69 - - - 95 - - -
15. Karnataka 0 1 0 2 0 1 4 10 39 - - - - 62 - - - 93 - - -
16. Kerala 1 0 0 1 1 1 4 14 40 - - - - 70 - - - 96 - - -
17. Madhya 1 1 1 4 2 1 10 11 41 52 90 110 - 67 79 82 - 91 104 - -
Pradesh
18. Maharashtra 1 1 0 2 1 2 7 19 37 53 - - - 71 80 - - 97 106 - -
19. Manipur- 1 1 0 2 1 1 6 13 42 54 - - - 72 81 - - 103 - - -
Tripura
20. Nagaland 1 0 0 1 0 1 3 15 45 - - - - - - - - 99 - - -
21. Orissa 0 1 0 1 0 1 3 29 - - - - - 75 - - - 100 - - -
22. Punjab 1 0 1 1 1 0 4 2 48 - - - - 76 - - - 101 - - -
23. Rajasthan 1 0 0 0 1 0 2 30 - - - - - 77 - - - - - - -
24. Sikkim 0 0 0 1 0 0 1 24 - - - - - - - - - - - - -
28. The serial number in bold indicates the insider candidates and the
remaining the outsider candidates.
29. To understand how the allocation is done, the reader of our opinion
would look at the chart without seeing the numbers 1 to 110 i.e. as if the
second part of the tabular chart was blank and only the name of the State,
the insider and outsider vacancies with reference to the number of
candidates to a State cadre existed in the chart. Thereafter the insider
vacancies being plotted on the second part of the table under the caption
'Unreserved‟ 'OBC' and 'SC/ST‟. To help the reader of our opinion, the
reader would at the first instance ignore to see the numbers in the normal
print and we highlight at serial No.8 i.e. State of Bihar. 5 candidates had
to be allotted to said State out of which 1 was insider and unreserved. 2
were outsiders unreserved and 1 each outsider in the OBC and SC/ST
category. The first unreserved candidate was at serial merit position
No.36 who had opted for the home State and he being the senior most in
the merit position if a merit list was drawn up of candidates from State of
Bihar, DoPT placed him as an insider candidate at the second cycle
leaving one slot vacant in the adjoining cell of the first cycle. It may be
seen that when outsider allocations were done the candidate at serial No.7
was allotted said slot because at the first stage only candidates at serial
No.1 to 24 had to be taken into account because the cycle was of 24
cadres. In case MHA had done the allocation the candidate at serial
No.36 would have been placed in the first cycle because he was the first
candidate in order of merit from the State of Bihar who had opted for the
State cadre.
30. The Tribunal has subscribed to the interpretation adopted by the
DoPT and proceeded to pass the order dated January 03, 2008 bearing the
same in mind. When dealing with how the cadre allocation had to be
carried out, the Tribunal, in paragraph 7, of the order observed as under:
" 7. The allocation between „insider‟ and „outsider; has to
be made as per paragraph 4 of the letter. In 1985, there
were 21 cadres/Joint cadres. After creating of 3 more States
in 2001, the number of cadres/Joint cadres has become 24.
Therefore, the cycles will be 1-24, 25-48, 49-72 and so on
instead of 1-21, 22-42, 43-63 and so on mentioned in
paragraph 4(ii). In the instant case, paragraph 4(v) of the
letter of 31.05.1985 is important. It is not disputed that both
Dhrubjyoti De and Patil Sachin Ashok are below serial
number 24 in the merit list. They should, therefore, have
been considered in the second cycle. Had they been
considered in the second cycle one „outsider‟ candidate in
order of merit would be placed in that cadre and that what
would have altered the list of cadre allocation...This, in our
view is contrary to the procedure indicated in paragraph 4
of the letter."
31. On the other hand, the Ministry of Home Affairs has relied on
paragraph 3 of the letter which 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 State.
32. Now, the problem is writ large. Whereas the Ministry of Home
Affairs as also DoPT have interpreted the policy requiring candidates in
order of merit to be seen in the cycle 1-24, 25-48, 49-72, 73-96, 97-120
and thus to said extent both are ad-idem, the point of diversion stems
from the fact that the positioning of merit has determined the slotting in
the applicable cycles when MHA has made the allocation vis-a-vis DoPT.
To wit, since we have given the example with respect to State of Bihar,
since the first candidate in order of merit in the unreserved category who
had opted for State of Bihar was at serial No.36, whereas as per MHA he
would have been placed in the first cycle, DoPT has placed him the
second cycle. Meaning thereby had MHA plotted the allocation the
person at serial No.36 would have been plotted against the first adjoining
cell i.e. the place occupied by the candidate at serial No.7.
33. The two interpretations stem from the malleability of the general
principles of cadre allocation, which are enunciated in the letter dated
May 31, 1985 and the further fact that a policy which did not envisage at
the relevant time reservation for OBC has been applied. Applying the
same as per DoPT a candidate first available as an insider for a particular
cadre would be allotted the State cadre even if his merit position is not at
merit serial No.1 to 24 by requiring him to be placed at the first instance
in the second cycle but MHA would place the candidate concerned
notwithstanding he is not at merit serial No.1 to 24 in the first cycle.
34. Notwithstanding that we have explained as above with reference to
the example of the State of Bihar pertaining to IAS allocation for the
CSE-2007 because during argument in Court said allocation chart was
used as an exemplar, to illustrate theoretically the difference between the
methodology adopted by the Department of Personnel and Training
(DoPT) and Ministry of Home Affairs (MHA) while implementing the
policy letter dated May 31, 1985 we take another example.
35. If there are 50 candidates to be allotted State cadres and the first
insider candidate for a particular cadre is available at serial No.47, as per
merit position, the DoPT would place the concerned candidate in the
second cycle of the Roster, since serial No.47 falls within the cycle of 25
to 48, the cycle of the Roster being 1 to 24, 25 to 48 and so on. The
reason being there are 24 cadres. On the other hand, the MHA would
place the concerned candidate in the first cycle itself, since he is the first
insider available candidate for that cadre.
36. We are faced with a peculiar problem. The malleability of the
language used in the policy letter dated May 31, 1985 leaves ample scope
for subjectivity and two views of the same policy emerge. Thus, it cannot
be said that one view is wrong. But, what about the argument that it
would be a contradiction in terms to say that as per same policy it can be
interpreted to mean that a same slot can be filled in the first cycle and
also in the second cycle. The argument would be that whereas words and
phrases are capable of having more than one meaning but the same have
to be analogous and not in the opposite. We concede to the point that
ordinarily it would seem irrational to accept a word or a phrase as having
two meanings which are in the opposite. But what is seemingly ordinary
may be missing a point. It is possible that the same word, phrase or a
concept is capable of having two meanings in the opposite. A ready
illustration would be the use of the word 'crowd', with reference to a bus
and a discotheque: 'What would be an irritating crowd in a bus would be
an atmosphere in a discotheque'.
37. Humour apart, it is settled law that where a policy has been
interpreted consistently for a long period of time and the interpretation
does not violate any statute or the constitution, a Court would not upset
an action taken pursuant to the policy if it is interpreted otherwise.
38. We highlight that the cadre allocation policy has since undergone a
change in the year 2008 and the problem is not of a recurring kind.
Strangely enough, till respondent raised the issue, nobody realized that
DoPT and MHA, the two faces of the same kind were interpreting the
policy in a different manner. Thus, respondent's case is the solitary
instance with no precedentiary value and thus there is no need to direct
that henceforth which out of the two interpretations should be followed.
But we would be failing not to highlight that the interpretation by MHA
appears to be the better interpretation for the reason we see logic in the
fact that the cycles i.e. 1 to 24, 25 to 48 and so on have to be operated not
as a mechanist but with logic. This means that the candidates have not be
slotted as per their merit ranking in the cycles but the cycles have to be
operated phase wise requiring the State at serial No.1 to be looked at and
identifying the first available candidate who had opted for the insider
vacancy in the State and slotting the candidate in the first cycle against
the insider vacancy. We highlight that it is the cycle which has to be
operated and the list, as per merit, of the candidates is the reservoir from
which the waters flow to operate the cycle.
39. We allow the writ petition and quash the impugned order dated
January 03, 2008. OA No.1920/2007 filed by the respondent is dismissed
but without any order as to costs.
(PRADEEP NANDRAJOG)
JUDGE
(V.KAMESWAR RAO)
JUDGE
OCTOBER 29, 2013
skb/mamta
