Hiteshkumar S Makawana S/O.S.M.Chamar vs Secretary
2024 Latest Caselaw 5584 Guj

Gujarat High Court

Hiteshkumar S Makawana S/O.S.M.Chamar vs Secretary on 26 June, 2024

Author: A.Y. Kogje

Bench: A.Y. Kogje, Samir J. Dave

                                                                                                 NEUTRAL CITATION




      C/SCA/12039/2007                                          JUDGMENT DATED: 26/06/2024

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                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/SPECIAL CIVIL APPLICATION NO. 12039 of 2007


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.Y. KOGJE                        Sd/-

and

HONOURABLE MR. JUSTICE SAMIR J. DAVE        Sd/-
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1   Whether Reporters of Local Papers may be allowed to see    Yes
    the judgment ?

2      To be referred to the Reporter or not ?                                       Yes

3      Whether their Lordships wish to see the fair copy of the                       No
       judgment ?

4      Whether this case involves a substantial question of law as                    No
       to the interpretation of the Constitution of India or any order
       made thereunder ?

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                  HITESHKUMAR S MAKAWANA S/O.S.M.CHAMAR
                                       Versus
                                SECRETARY & ORS.
=======================================================================
Appearance:
MR NAGESH C SOOD(1928) for the Petitioner(s) No. 1
DELETED for the Respondent(s) No. 4
MR DHARITRI PANCHOLI, AGP for the Respondent(s) No. 2,3
VIRAL K SHAH(5210) for the Respondent(s) No. 1
=======================================================================

      CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
            and
            HONOURABLE MR. JUSTICE SAMIR J. DAVE

                                     Date : 26/06/2024

           ORAL JUDGMENT      (PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)

1. The present petition is filed by the petitioner

challenging order dated 13.11.2006 passed by the Central

Administrative Tribunal, Ahmedabad Bench, Ahmedabad in

Original Application No.398 of 1996, by which request of the

petitioner to allocate him Gujarat cadre as insider in place of Tamil

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Nadu.

2. Learned Advocate for the petitioner submitted that the

petitioner was the only person who was appointed to the Indian

Administrative Services from Gujarat on successfully clearing of

the Civil Services Examination in the year 1994 and despite there

being a vacancy for insider in the State of Gujarat, the petitioner

was allocated Tamil Nadu Cadre as an outsider.

2.1 It is submitted that the Union Government has come

out with the policy of cadre allocation for All India Service Officers

wherein certain principles are enunciated for the distribution of

vacancies between 'insiders' and 'outsiders' on the basis of roaster

system. According to the said policy, the allocation of outsiders,

irrespective of there being general candidates or reserved

candidates, men or women, would be as per the roaster system

after placing "insiders" at their proper places for the list prepared

of the successful candidates. It has been further provided that the

candidates belonging to the reserved category whose position in

the merit list is such that they could be appointed to the service

even in the absence of any reservation, the said candidates are to

be treated at par with general candidates for the purposes of

allotment although, they are counted against reserved vacancies. It

is pertinent to note here that the policy specifically provides that if

there is a shortfall in general "insider" quota, it could be filled

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up/made up by insider reserved candidates.

2.2 It is submitted that the Union Government had

converted reserved point for OBC to that of SC/ST in Haryana

Cadre as well as in Karnataka Cadre but in the case of petitioner,

the said principle has not been adopted in Gujarat Cadre. The

representation of the petitioner was rejected mainly on the ground

that there was no vacancy for SC/ST candidate in the Gujarat

Cadre. Thus, the Union Government deviated from its own cadre

allotment policy and grossly violated the spirit of the judgment of

the Hon'ble Apex Court in Rajiv Yadav's Case. The petitioner being

an insider, was entitled to be allocated to Gujarat Cadre against

existing insider vacancy rather than accommodating an outsider

candidate into insider vacancy against the policy of cadre

allotment.

2.3 It is submitted that despite there being two vacancies

in Gujarat Cadre in the year 1995, and last allocation having been

stopped at outsider point in 1991, the insider vacancy ought to

have been filled up by the insider category candidate i.e. the

Petitioner. Petitioner should have been given Gujarat cadre as per

the principles of the cadre allotment.

2.4 It is submitted that both the vacancies in Gujarat Cadre

in the year 1995 were filled up by outsiders (i) outsider general, (ii)

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outsider OBC. The petitioner has neither been considered as

insider nor reserved category candidate.

2.5 It is submitted that the insider OBC vacancy has been

converted to outsider OBC vacancy while outsider GENERAL has

not been converted as insider GENERAL. Had it been done like

this, petitioner being SC could have been allocated insider

GENERAL slot in absence of insider GENERAL candidate.

2.6 It is submitted that Clause (vii) of the letter dated

31/05/1985 was not followed by the Union Government in

allocation of the Cadre in the case of petitioner, which laid the

following principles:-

(i) Distribution of reserved vacancies in each Cadre between outsider/insider is to be made in the ratio of 2:1.

(ii) Ratio is operationalized by following a cycle of outsider-insider-outsider.

(iii) Clause (vii) provides that in case of no general "insider" candidate then this shortfall is made up by an insider reserved candidate.

2.7 It is argued that the Tribunal has not appreciated the

fact that the Union Government in its affidavit in reply filed before

this Court in SCA No.4776 of 1999 has placed the data disclosing

the allotment of the candidates from the period 1989 to 1993

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justifying the stand that the Union Government in making

allocation of cadre to the successful candidates as per the policy.

The chart disclosed the break-up given by the Union Government of

the candidates in the general as well as reserved category. A bare

perusal of the chart reveals that in the State of Himachal Pradesh,

there being an "insider" post, an SC /ST candidate was available.

However, the same is considered as general candidate since the

ratio of SC /ST candidate is throughout maintained. In case of

State of Karnataka, there has been a shortfall of SC /ST candidates

since 1990 and despite the same, the cadre was not allocated to SC

/ST candidates. In the State of Tamil Nadu, there is no shortfall of

SC /ST candidates and if the ratio of allocation of SC ST in 1989

(1990) batch) is perused, out of 9 candidates, 3 were given SC ST

i.e. 33.3% whereas the reservation is only 22.5%. In the year 1990

(1991 batch), the allocation to the tune of 50% out of 10.5 is given

to SC /ST and the total cadre allotted in the last 5 years beginning

from 1989 to 1993 is 13 candidates out of 39, i.e. 33.3% and in

Tamil Nadu, SC /ST candidates are treated as general for the

"insider" post.

2.8 It is submitted that if comparison is made between the

two States, viz. Himachal Pradesh and Karnataka, in the year 1990,

1 post was allotted to general category and 1 post has been allotted

to SC /ST. Through reservation of 22.5%, there is 50% allocation,

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which clearly shows that there is no uniformity. In the year 1993

again, 1 post is allotted to SC /ST out of 2 in Himachal Pradesh and

in Karnataka despite there being a shortfall of SC /ST candidates.

2.9 It is submitted that the Tribunal has wrongly

interpreted the policy of the Government specified in para-4(vii) by

coming to the conclusion that exchange was only possible, if there

existed a vacancy for SC ST in outsider quota brushing aside the

fact that the policy was framed with a view to give opportunity to

SC /ST candidates who would otherwise be lower in merit to get

the allocation in their home State. Otherwise also, there was a

shortfall in Gujarat that was required to be filled up. The Tribunal

has wrongly come to the conclusion that there is a modification of

the policy after introduction of reservation of OBC by considering

the solitary case of one candidate dealt by the department though

the department has followed the policy of exchange by allocating

the post of SC /ST candidate in case the insider in other category

are not available.

3. As against this, learned Advocate for the respondent-

department submitted that the petitioner filed Original Application

No.398 of 1996 before the Central Administrative Tribunal,

Ahmedabad Bench claiming allocation to Gujarat cadre-his home

State in lieu of Talim Nadu. The application filed by the petitioner

has been dismissed vide judgment and order dated 22.04.1999.

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Against that judgment, the petitioner filed the present petition

mainly on the ground that insider vacancy should go to the

available insider candidate irrespective of his category and

accordingly, he should be allotted Gujarat State against the

available insider OBC vacancy as he is the only insider (SC) from

Gujarat in 1995 batch. It is submitted that merely availability of

insider vacancy does not suo motu entitle him for allocation against

that vacancy and he cannot be accommodated against the

vacancies earmarked for OCB or general candidates. The

petitioner could be accommodated against the only insider OBC

vacancy in Gujarat had there been an outsider SC /ST vacancies to

facilitate the exchange between the outsider SC /ST vacancy and

the insider OCB vacancy. The composition of number of vacancies

available from each community category (in this case one OBC and

one UR), cannot be allowed to change as that would disturb the

balance.

3.1 It is submitted that in 1995 batch of Gujarat (CSE-

1994), the only insider vacancy was for OBC candidate and no

insider OBC candidate was available for allocation against the slot.

The petitioner, who belongs to SC category, could not allocated

against the available OBC insider vacancy and in terms of the

principles of cadre allocation, the sole insider OBC vacancy was

filled up by an outsider OBC candidate.

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3.2 It is submitted that IAS probationers are allotted to the

cadres strictly in accordance with the principles of cadre allocation,

which have been upheld by the Apex Court in various decisions.

Since the only insider vacancy in the State cadre of Gujarat was for

an OBC candidate, the petitioner being a scheduled caste

candidate, could not be allotted against that insider OBC slot. The

petitioner has failed to show as to how he could be considered and

allotted against insider vacancies meant for OBC candidate.

3.3 It is submitted that the principles of cadre allocation

have no provision for any carry forward of backlog vacancies. So

long as the principles of cadre allocation are strictly followed, the

petitioner can have no grievance. Insider vacancies not filled due

to non-availability of insider candidates are not liable to be carried

forward to any subsequent examination. This principle has been

upheld by the Apex Court in cases of Union of India Vs.

Mhathung Kithan & Ors. and Union of India Vs, Kumari

Bindhyeshwari Negi, reported in (1996) 10 SCC, 562.

4. Having heard learned Advocates for the parties and

having perused documents on record, it appears that the date of

birth of the petitioner is 28.04.1996. The petitioner was the only

candidate from the State of Gujarat to successfully pass and

cleared the Civil Services Examination conducted by the Union

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Public Services Commission in the year 1994 and was appointed to

the Indian Administrative Services (IAS). The petitioner belongs to

the State of Gujarat and is from SC category. However, the

petitioner, on his appointment to IAS, was allocated to Tamil Nadu

cadre vide order dated 27.12.1995 and immediately thereafter on

28.01.1996, the petitioner made representation to the Union

Government for allocating his services to Gujarat cadre. By order

dated 27.02.1996, the Ministry of Personnel, Government of India,

informed that the petitioner that he was allocated Tamil Nadu

cadre as an outsider. Hence, he could not be allocated to Gujarat

cadre as an insider.

5. With the introduction of the OBC Candidates from Civil

Services Examination 1994 onwards, the principles of cadre

allocation incorporate provisions for reservation for OBC besides

SC and ST candidates to the extent possible. There were two

vacancies to be filled in the State Cadre of Gujarat in 1995 Batch

(CSE-1994); one was for inside OBC candidate and the other was

for an outsider General Candidate. The outsider vacancy went to an

outsider General candidate as per the roster point. It is specifically

submitted that for the petitioner to be allotted to his home State

either of the two following conditions were required to be fulfilled:

(i) there must be an insider SC/ST Vacancy in Gujarat; and (ii)

there must be an outsider SC/ST slot to facilitate the exchange

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between the outsider SC/ST slot and the insider OBC Slot. Since an

insider OBC candidate was not available for allotment against the

insider OBC vacancy and since there was no outsider SC/ST

vacancy in Gujarat to facilitate the exchange, the insider OBC slot

was filled up by an outsider OBC candidate as per the principles of

cadre allocation. The insider OBC vacancy was also not exchanged

with the General outsider vacancy, as there was no insider general

candidate available for allocation.

6. The candidates recruited to the IAS through this

examination are requires to be allotted to various cadres, which is

done by following set principles.

(a) In the first stage, the aggregate vacancies to be filled on the basis of particular examination are determined. Prior to introduction of reservation for OBC category, the vacancies were disturbed amongst General, SC and ST. For distribution of these vacancies, 40 Point Roster was used. After introduction of reservation for candidates belonging to OBC Category, the 40-Point Roster was replaced with 200-Point Roster for distribution of vacancies among General, OBC, SC and ST. The vacancies so determined are intimated to the Union Public Service Commission ("UPSC" for short) and are notified. The UPSC, in turn, recommends candidates belonging to each category equal to the number of vacancies

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reported to the UPSC.

(b) In the second stage the total number of vacancies so determined are distributed among various State / Joint Cadres as per Standard Procedure.

(c) In the third stage, the vacancies are earmarked for each cadre as per Standard Procedure. The vacancies earmarked for each cadre are divided among General, OBC and SC/ST. The distribution of vacancies conforms to the total number of vacancies as reported to the Commission and is never altered. After distribution of vacancies among various cadres, the next stage is the distribution of vacancies earmarked for each category into two categories, namely, those to be filled up. by 'insiders', i.e. candidates hailing from that State and the vacancies to be filled up by 'outsiders', i.e. candidates hailing from outside that State. The distribution of vacancies between insiders and outsiders is done on the basis of 30- Point Roster. There are two separate 30-Point Rosters; one for total number of vacancies and another for reserved vacancies. Since the introduction of reservation for OBC in recruitment through Civil Services Examination from CSE 1994 onward, the 30-Point Roster for reserved category incorporates slots in addition to the SC/ST slots. Thus, the distribution of vacancies between insider and outsider for the entire reserved category is done in the same roster. Earlier, when there were only two

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categories namely, unreserved (General) and SC/ ST, the 'insider' SC/ST vacancy, which could not be filled due to nonavailability of insider candidate, was filled by unreserved (General) candidates provided there was an outsider General Vacancy available in the cadre and vice- versa. Now, with the introduction of third category, namely, OBC, it has been decided with effect from Civil Services Examination, 1994 (1995 Batch) that where an 'insider' SC/ST-OBC candidate is not available for allocation against that 'insider' slot, the 'insider' slot for SC/ST-OBC candidates is allotted to an insider OBC-SC/ST candidate with the condition that there must be an outsider vacancy for that category in that cadre. Further, if an 'insider' OBC-SC/ST candidate is also not available and/or an outsider OBC-SC/ST vacancy slot in that State Cadre is not available to facilitate the exchange, the 'said insider vacancy slot is allotted to an unreserved (General) Candidate again subject to the condition that there must be an unreserved (General) outsider vacancy available in the cadre. If an insider slot still remains unfilled, it is filled with an outsider and in terms of the principles of cadre allocation, the unfilled insider vacancies are not carried forward to be filled on the basis of subsequent years. This policy of the answering respondent do not carry forward the unfilled insider vacancies if they are not filled due to non- availability of insider candidates may increase the

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outsider elements in a cadre over a period of time but this is perfectly in harmony with the spirits and objectives of the principles of cadre allocation which stipulate that at least 66 2/3% of the officers are from outside the State Concerned.

7. In the case of Gujarat, there were two vacancies for

which recruitment was made on the basis of Civil Services

Examination, 1994. Out of the two one is for unreserved (general)

and another is for OBC candidate. According to the 30 point

roster, one vacancy slot is for an 'insider' OBC candidate and the

other for an 'outsider' unreserved (general) candidate. There is no

vacancy for an SC/ST candidate in the allocation, there is no

'insider' OBC candidate available for allocation against the only

'insider' OBC vacancy slot. However, since there is no SC/ST

'outsider' vacancy slot available, it has not been possible to

facilitate the 'exchange' between and 'insider' OBC vacancy slot for

an 'outsider' SC/ST vacancy slot. Hence, the 'insider' OBC vacancy

slot, has been finally allocated to an 'insider' OBC candidate

according to the principles of cadre allocation. The contention of

learned advocate for the petitioner that the 'insider' OBC vacancy

slot should have gone to SC/ST vacancy slot the contention of the

learned advocate for the petitioner is not tenable.

7.1 If the 'insider' OBC vacancy slot is made available to

SC/ST candidate, as contended by learned advocate for the

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petitioner on the ground that there is no 'insider' OBC candidate

but there is an 'insider' SC/ST candidate then in the absence of an

'insider' ST/SC vacancy slot as in this case the process will lead to

an increase in the number of SC/ST vacancy slot and reduction of

OBC vacancy slot leading to mismatch between the available

vacancy slot in each category and the number of candidate in that

category. Increase in the number of slots in one Reserved category

by diverting from another reserved category is not permissible.

8. According to the policy followed in the matter of the

cadre allocation, if there is vacancy slot reserved for OBC category

for an 'insider' and no OBC category for an 'insider' and no OBC

candidate hailing from that State is available then that vacancy can

be filled up by a candidate belonging to SC/ST candidate hailing

from that State provided there is an SC/ST vacancy as outsider is

available to facilitate the exchange. Similarly if no SC/ST candidate

is available to fill up the insider SC/ST vacancy slot then that

vacancy can be filled up by an OBC candidate provided an OBC

vacancy Slot as outside is available in that cadre. In the case of

Gujarat there were two vacancies to be filled on the basis of CSE

1994, the distribution was that, one vacancy was for General

category and one was for OBC category. According to the 30 point

roster the insider vacancy slot was for OBC category and the

outsider vacancy was for general category. There was no OBC

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candidate available to fill that vacancy slot. However, that vacancy

could not be diverted to SC/ST , candidate because no outsider SC/

ST vacancy slot was available in respect of Gujarat cadre to

facilitate the exchange. Hence the vacancy slot was allocated to an

'outsider' OBC candidate.

9. The petitioner belongs to Scheduled Caste Category

and was allocated to the Indian Administrative Service ("IAS" for

short) as per his relative merit position (Rank-191 in combined

Merit List) on the basis of Civil Services Examination, 1994.

10. In his application form for the Civil Services (Main)

Examination, the petitioner had indicated his willingness to be

allotted to his home State-- Gujarat. As all the IAS Probationers are

borne on the State/Joint Cadres, they have to be allotted to

State/Joint Cadres in accordance with the Principles of Cadre

Allocation formulated by the answering respondent, which have

been, upheld by the Hon'ble Supreme Court in the case of 'Union-of

India vs. Rajiv Yadav and even in Union of India vs. P.K. Borthakur.

Allotment of Cadre is done strictly in accordance with the aforesaid

principles on cadre allocation.

11. The Court may now address the principle laid down by

the Apex Court on the issue of cadre allocation in Indian

Administrative Services and the right of a candidate to claim

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allocation. The Apex Court in case of Union of India & Ors. Vs.

Rajiv Yadav, IAS & Ors., reported in AIR 1995 SC, 14 has held

in para-5 as under:-

"5. We may examine the question from another angle. A selected candidate has a right to be considered for appointment to the IAS but he has no such right to be allocated to a cadre of his choice or to his home- State. Allotment of cadre is an incidence of service. A member of an All India Service bears liability to serve in any part of India. The principles of allocation as contained in Clause 2 of the letter dated May 31, 1985, wherein preference is given to a scheduled caste/scheduled tribe candidate for allocation to his home State, do not provide for reservation of appointments or posts and as such the question of testing the said principles on the anvil of Article 16(4) of the Constitution of India does not arise. It is common knowledge that the scheduled caste/scheduled tribe candidates are normally much below in the merit list and as such are not in a position to compete with the general category candidates. The "Roster System"

ensures equitable treatment to both the general candidates and the reserved categories. In compliance with the statutory requirement and in terms of Article 16(4) of the Constitution of India 221/2% reserved category candidates are recruited to the IAS. Having done so both the categories are to be justly distributed amongst the States, But for the "Roster System" it would be difficult rather impossible for the scheduled castes/scheduled tribes candidates to be allocated to

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their home States. The principles of cadre allocation, thus, ensure equitable distribution of reserved candidates amongst all the cadres."

11.1 Thus, it appears that in the aforesaid decision in case

Rajiv Yadav's case (supra), the Hon'ble Supreme Court has held

that 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 preference 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. Thus, the allotment of cadre is purely an

administrative exercise and any scope for judicial interference only

on the ground of discrimination and violation of the principles of

cadre allocation by the Union of India. So long the policy on cadre

allocation is followed uniformly in all the cases of the same batch.

12. On the same principle, adopting the very view, the Apex

Court once again in case of Union of India & Anr. Vs.

A.Shainamol, IAS & Anr., reported in (2021) 20 SCC, 267, has

reiterated the view in case of Rajiv Yadav (supra) and in para-44

has held as under:-

"44. In the light of Rajiv Yadav, the allocation of cadre is not a matter of right. It was held that a selected

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candidate has a right to be considered for appointment to the IAS but he has no such right to be allocated to a cadre of his choice or to his home state. As stated above, allotment of cadre is an incidence of service. The applicant as a candidate for the All-India Service with eyes wide open has opted to serve anywhere in the country. Once an applicant gets selected to service, the scramble for the home cadre starts. The procedure for allocation of cadre is a mechanical process and admits no exception except in terms of Rule 7(4) which is to be read as proviso to Rule 7(3). The State has no discretion of allocation of a cadre at its whims and fancies. Therefore, the Tribunal or the High Court should have refrained from interfering with the allocation of cadre on the argument of alleged violation of the allocation circular."

13. The Court has also examined the claim of the petitioner

independently of the reasonings assigned by the Central

Administrative Tribunal and do not find any justification in the

claim made by the petitioner to be allocated Gujarat cadre on the

formula of outsider-insider-outsider in the ratio of 2:1. The

respondents have not committed any illegality in not accepting the

claim of the petitioner in this regard.

14. The Tribunal in para-8 of the judgment has appreciated

the departmental note produced by the department before the High

Court in the previous round of litigation and has explained the

distribution of the vacancies amongst OBC and SC/ST categories

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and as per their respective percentages. At the relevant time, it is

explained that the Gujarat cadre got one OBC and zero SC /ST seat

while Tamil Nadu had got three OBCs and two SC /ST seats. The

total of 23 OBCs and 16 SCs/STs as against category vise

composition of 22 OBCs and 18 SCs /STs. This explained the logic

behind not accepting the claim of the petitioner.

15. The Tribunal has also assigned reasons against plea

raised by the petitioner in non-allocation of vacancies of SCs/STs

posts to the Gujarat cadre and that the vacancy was wrongly

allocated to Karnataka. The same was explained on the basis of

two principles, viz. (1) where highest shortfall took place and (2)

the overall shortfall in the cadre. The rounding off of 0.4520 in

Gujarat, Himachal, Haryana, Karnataka, Tamil Nadu and West

Bengal indicated shortfall was worked out on the basis of two years

for Gujarat and therefore, for that particular year, shortfall in

Gujarat will be only one, whereas shortfall in Karnataka was by two

and one each for Haryana, Madhya Pradesh, Manipur, Tripura,

Rajasthan and West Bengal. The all India chart which was placed

before the Tribunal indicated the shortfall as above. Therefore, the

Tribunal was justified in coming to conclusion that insofar as

representation of SC /ST candidates in Gujarat is concerned, the

same is meeting with the requirements. The departmental note of

the department indicates that the policy was permitting exchange

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only if outsider post was going to SC /ST candidate. However, with

the introduction of OBC as per the policy, the vacancy was required

to be shared and therefore, to the instance as was indicated by the

petitioner in case of Abhisek Singh, the Tribunal has correctly held

that the case was considered only on account of the vacancy of SC /

ST existed in the outsider cadre. This was not the case in Gujarat

cadre.

16. At this stage, it would be pertinent to observe

considering the date of birth of the petitioner that the petitioner is

at the fag end of his career and at this stage, if the exercise as is

prayed for by the petitioner is undertaken, it will have cascading

effect on the appointments made as per roster and in the ratio of

2:1 by adopting principle of outsider-insider-outsider as the same

will have effect on other States as well where allocation of cadre

was made at the relevant time.

17. For the foregoing reasons, the Court does not find any

reason to interfere with the order of the Tribunal. The petition

therefore deserves to be and is hereby dismissed. Rule is

discharged.

Sd/-

(A.Y. KOGJE, J)

Sd/-

(SAMIR J. DAVE,J) SHITOLE