Telangana High Court
Union Of India Through The ... vs Shri Somesh Kumar S/O Late Shri S N ... on 10 January, 2023
Bench: Ujjal Bhuyan, Surepalli Nanda
* THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
+ W.P.No.4938 OF 2017
% Date: 10-01-2023
# Union of India, through the Secretary, Department of Personnel &
Training
... Petitioner
v.
$ Somesh Kumar
... Respondent
! Counsel for the Petitioner : Sri T.Suryakaran Reddy, learned Senior
Counsel for Sri B.Narasimha Sarma
^ Counsel for respondent No.1 : Sri D.V.Sitharam Murthy, learned Senior
Counsel for Sri N.Ashwani Kumar
Counsel for respondent No.2 : Sri B.S.Prasad, learned Advocate General
Counsel for respondent No.3 : Sri P.Govind Reddy, learned counsel
appearing for services (AP)
< GIST:
HEAD NOTE:
? CASES REFERRED:
1. (1994) 6 SCC 38
2. (1996) 10 SCC 562
3. (2011) 8 SCC 123
4. (2001) 2 SCC 118
5. (2007) 7 SCC 250
2
THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION No.4938 of 2017
ORDER: (Per the Hon'ble the Chief Justice Ujjal Bhuyan)
Heard Sri T.Suryakaran Reddy, learned Senior
Counsel and the then Additional Solicitor General of India
representing Sri B.Narasimha Sarma, learned counsel for
the petitioner; Sri D.V.Sitharam Murthy, learned Senior
Counsel representing Sri N.Ashwani Kumar, learned
counsel for respondent No.1; Sri B.S.Prasad, learned
Advocate General for the State of Telangana for
respondent No.2; and Sri P.Govind Reddy, learned counsel
appearing for services (AP) representing respondent No.3.
2. This petition has been filed by Union of India
through the Secretary to the Ministry of Personnel, Public
Grievances and Pension in the Department of Personnel
and Training under Article 226 of the Constitution of India
assailing the legality and validity of the judgment and
order dated 29.03.2016 passed by the Central
3
Administrative Tribunal, Hyderabad Bench at Hyderabad
(briefly, 'CAT' hereinafter) in O.A.No.1241 of 2014.
Facts
and Pleadings:
3. First respondent is an All India Service officer
allocated to the Indian Administrative Service (IAS) on the
basis of the civil services examination of 1988 under
unreserved category. He is an IAS officer of the 1989
batch.
4. Since 1989 first respondent served in the composite
State of Andhra Pradesh under unreserved category in
different capacities. At the relevant point of time, he was
serving as Commissioner of Greater Hyderabad Municipal
Corporation (GHMC).
5. The composite State of Andhra Pradesh was
bifurcated into the successor States of Telangana and
Andhra Pradesh in terms of the Andhra Pradesh
Reorganisation Act, 2014 (briefly, 'the Reorganization Act'
hereinafter). The notified date being 02.06.2014, the two
states came into being with effect from 02.06.2014. The
Reorganisation Act necessitates division and re-allocation
of personnel serving in the erstwhile composite State of
Andhra Pradesh including those belonging to the All India
Services to the two successor States of Telangana and
Andhra Pradesh. Section 76 of the Reorganisation Act
provided for modalities for allocation of All India Service
officers between the two States.
5.1. Section 80(1) of the Reorganisation Act provided that
the Central Government may, by an order, establish one
or more advisory committees within a period of thirty days
from the date of enactment of the Reorganisation Act for
the purpose of, amongst others, to ensure fair and
equitable treatment to all officers affected by Part VIII of
the Reorganisation Act, which comprises Section 80, and
for proper consideration of any representation made by
such person(s). As per sub-section (2), the allocation
guidelines were to be issued by the Central Government
on or after the date of enactment of the Reorganisation Act
and the actual allocation of individual officers shall be
done by the Central Government on the recommendations
of the advisory committee.
6. In exercise of powers conferred by Section 80 of the
Reorganisation Act, Central Government vide notification
dated 28.03.2014 constituted the advisory committee
under the Chairmanship of Dr. S.Pratyush Sinha, IAS
(Retd), for the following purposes:
(a) (i) to recommend the initial strength and
composition of the categories of the Indian Administrative
Service (IAS);
(ii) Indian Police Service (IPS); and
(iii) Indian Forest Service (IFS)
for the States of Telangana and Andhra Pradesh in
terms of Section 76(3) of the Reorganization Act.
(b) to recommend as to which of the members of
(i) IAS, (ii) IPS and (iii) IFS borne on the cadre of the
undivided State of Andhra Pradesh should be allocated to
the cadres in the successor States of Telangana and
Andhra Pradesh of the same service.
7. Advisory committee (also referred to as the
Dr. Pratyush Sinha committee) recommended norms and
principles to be adopted for allocation of All India Service
officers borne on the cadre of undivided Andhra Pradesh
to the States of Telangana and Andhra Pradesh. On the
basis of such recommendations, Central Government
issued guidelines dated 30.05.2014 for allocation of All
India Service officers borne on the undivided cadre of
Andhra Pradesh between the successor States of
Telangana and Andhra Pradesh. Simultaneously
provisional list dated 30.05.2014 was prepared making
allocation of the All India Service officers borne on the
cadre of the undivided State of Andhra Pradesh to the
successor States of Telangana and Andhra Pradesh. First
respondent was allotted to Andhra Pradesh though he had
opted for Telangana.
8. Being aggrieved, first respondent made two
representations to the advisory committee on 26.08.2014
and 28.08.2014 requesting change of allocation from
Andhra Pradesh cadre to Telangana cadre. In the second
representation, he also proposed that he could be
swapped with another officer i.e., Sri Rajat Bhargava who
had been allocated to the State of Telangana and who
would prefer going to Andhra Pradesh. However, there was
no response. Instead list dated 10.10.2014 was published.
Insofar first respondent was concerned, the position was
maintained.
9. At that stage, first respondent, as the original
applicant, filed O.A.No.1241 of 2014 under Section 19 of
the Administrative Tribunals Act, 1985 before the CAT.
Prayer made in the said original application was to declare
the guidelines dated 30.05.2014 and the subsequent
process of allocation of officers of All India Service borne
on the cadre of the erstwhile composite State of Andhra
Pradesh to the successor States of Telangana and Andhra
Pradesh including the allotment of first respondent to the
State of Andhra Pradesh as illegal and arbitrary; further
prayer made was for a direction to the Central
Government to allot first respondent to the State of
Telangana in terms of his option.
10. It appears that after filing of the original application,
revised allocation order dated 05.03.2015 retaining the
first respondent in the State of Andhra Pradesh was
issued by the Central Government which also came to be
challenged in the original application.
10.1. First respondent had challenged the guidelines
before the CAT on various grounds. The guidelines were
assailed on the ground that allocation of officers, more
particularly the serving 191 direct recruit officers of the
erstwhile composite State of Andhra Pradesh, to the
successor States of Telangana and Andhra Pradesh in the
ratio of 83:108 was done without reference to batch
seniority which was contrary to the statutory rules i.e.,
Indian Administrative Service (Cadre) Rules, 1954. It was
also contended that the impugned guidelines were
prepared by the advisory committee headed by Sri
Pratyush Sinha, IAS (Retd). In the advisory committee, the
Chief Secretary of the erstwhile composite State of Andhra
Pradesh and later on the Chief Secretary of the States of
Andhra Pradesh and Telangana were made members but
they themselves were affected parties. Dr. P.K.Mohanty,
who was the Chief Secretary of the composite State of
Andhra Pradesh, was a member of the advisory
committee. But his daughter Mrs. Swetha Mohanty, IAS of
2011 batch (unreserved outsider S.No.73) and son-in-law
Sri Rajat Kumar Saini, IAS of 2007 batch (OBC outsider
S.No.15) were direct recruit officers of the erstwhile
composite State of Andhra Pradesh awaiting allocation to
the two successor States on the basis of the impugned
guidelines, and had opted for the State of Telangana.
Therefore, nomination and participation of
Dr. P.K.Mohanty in the proceedings of the advisory
committee had vitiated the same.
10.2. Though Government of India constituted the
advisory committee headed by Sri Pratyush Sinha, IAS
(Retd) with detailed terms of reference, Central
Government had acted arbitrarily by notifying the
guidelines and individual allocation together without
giving any opportunity to the stakeholders to make any
representation on the guidelines.
10.3. Though first respondent had made two
representations to the advisory committee on 26.08.2014
and 28.08.2014 requesting change of allocation from
Andhra Pradesh cadre to Telangana cadre, first
respondent was not informed by the Central Government
as to the decision taken on such representations. Without
considering such representations, first respondent
continued to remain allotted to Andhra Pradesh cadre as
per list dated 10.10.2014.
10.4. Another contention advanced was that the impugned
guidelines proposed division of serving officers amongst
direct recruits into two groups i.e., direct recruit insiders
and direct recruit outsiders. This classification of serving
All India Service officers into direct recruit insiders and
direct recruit outsiders had no nexus to the object sought
to be achieved i.e., re-allocation of officers between the two
States having regard to fair and equitable treatment. No
such classification was carried out in respect of promotee
officers. Therefore, the guidelines were assailed as being
discriminatory and thus violative of Article 14 of the
Constitution of India.
10.5. The impugned guidelines also provided for an option
to the officers for swapping but for direct recruits it was
confined to officers of the same batch only though in case
of reserved category officers swapping was permissible
between officers of more than one batch. This was also
contended to be discriminatory.
10.6. Another contention raised was non-inclusion of
Dr. P.K.Mohanty, IAS of 1979 batch in the list of officers
for allocation between the two States, though he was in
service on 01.06.2014. As per the guidelines, officers to be
considered for allocation should be borne on the cadre of
the composite State of Andhra Pradesh and should be
serving on the day immediately before the appointed day.
Appointed day being 02.06.2014, the officers should be in
service on 01.06.2014. Dr. P.K.Mohanty was in service as
on 01.06.2014. Therefore, he ought to have been included
in the pool of officers in which event he would have been
allotted to one of the successor States. If that would have
been done, first respondent would have secured allotment
in accordance with his option.
10.7. First respondent also contended that the advisory
committee did not follow the guidelines of the U.C.Agarwal
committee which was constituted to oversee allocation of
All India Service officers at the time of division of the State
of Uttar Pradesh.
11. Union of India, petitioner herein, which was arrayed
as respondent No.1 in O.A.No.1241 of 2014, had filed
objection. It was contended that All India Service is
created under Article 312 of the Constitution of India and
are common to both the Union and the States. Insofar IAS
is concerned, there are two quotas - (i) direct recruitment
quota and (ii) promotion quota. While the direct
recruitment quota is filled up through a civil services
examination conducted annually by the Union Public
Service Commission (UPSC), the promotion quota is filled
up through appointment by promotion from amongst the
state civil services as per the provisions of the Indian
Administrative Service (Appointment by Promotion)
Regulations, 1955.
11.1. After formation of the two new States of Telangana
and Andhra Pradesh out of the erstwhile composite State
of Andhra Pradesh, following the Reorganisation Act,
personnel employed in the undivided State of Andhra
Pradesh including those belonging to All India Services
were required to be divided and allocated. This aspect is
addressed in Section 76 of the Reorganisation Act.
11.2. In exercise of powers conferred by Section 80 of the
Reorganisation Act, Central Government constituted an
advisory committee under the chairmanship of
Dr. Pratyush Sinha, IAS (Retd) to inter alia recommend the
initial strength and composition of cadres of IAS, IPS and
IFS for the State of Telangana and for the residual State of
Andhra Pradesh in terms of Section 76(3) of the
Reorganisation Act. Advisory committee was also under a
mandate to recommend as to which of the members of
IAS, IPS and IFS borne on the cadre of the undivided State
of Andhra Pradesh should be allocated to the cadres of
Telangana and Andhra Pradesh of the same service.
11.3. After due consideration and consultation, the
advisory committee recommended the norms and
principles to be adopted for allocation of Telangana cadre
and Andhra cadre to All India Service officers borne on the
cadre of undivided Andhra Pradesh. Following the same,
Central Government framed the guidelines. Thereafter, the
main features of the guidelines were adverted to.
11.4. The concerned officers were allowed to offer their
preferences to be taken into account at the time of final
allocation. On that basis and applying the guidelines, a
draft list of officers to be re-allocated was circulated
against which some of the affected officers submitted
representations. After considering the representations,
advisory committee submitted final report to the
competent authority. Whereafter orders dated 05.03.2015
were issued allocating All India Service officers to the
newly created cadres of Telangana State and Andhra
Pradesh State after approval of the competent authority.
First respondent had to be allocated Andhra cadre though
he had opted for Telangana. Allegations raised by the first
respondent were denied.
12. State of Telangana also filed an affidavit taking the
stand that affidavit filed by Union of India may be
considered. It was contended that Government of India in
the Department of Personnel and Training in exercise of
powers conferred by sub-section (3) of Section 76 read
with Sections 79 and 81 of the Reorganisation Act read
with Rule 5 of the Indian Administrative Service (Cadre)
Rules, 1954 had made provisional allocation of IAS officers
to the State of Telangana vide the notification dated
30.05.2014. Earlier Government of India in the
Department of Personnel and Training had issued a
notification constituting the advisory committee for
recommending to the Union of India guidelines for
allocation of officers belonging to the All India Services
borne on the cadre of the erstwhile composite State of
Andhra Pradesh to the two successor States. Pursuant
thereto, advisory committee made recommendations and
based on the recommendations, guidelines were issued
and placed on the website of the Central Government,
which was impugned in the original application.
12.1. Contending that allocation of All India Service
officers between the States of Telangana and Andhra
Pradesh was under the domain of Government of India,
State of Telangana prayed for dismissal of the original
application.
13. First respondent i.e., the original applicant had filed
rejoinder affidavits denying the contentions of the Central
Government as well as the State of Telangana.
14. After hearing the matter, CAT vide the judgment and
order dated 29.03.2016 held that guidelines notified by
the Central Government on 30.05.2014 and the
subsequent process of allocation of officers of the All India
Services borne on the cadre of the erstwhile composite
State of Andhra Pradesh to the successor States of
Telangana and Andhra Pradesh vide the revised allocation
order dated 05.03.2015 were liable to be quashed being in
violation of Article 14 of the Constitution of India as well
as Section 80 of the Reorganisation Act. However, CAT
refrained from doing so on the ground of administrative
exigency and not to unsettle the settled things. But the
order dated 05.03.2015 insofar first respondent was
concerned was set aside and quashed directing the
respondents (including the petitioner herein) to treat him
as an All India Service officer of the State of Telangana
with all consequential benefits.
15. Assailing the aforesaid judgment and order dated
29.03.2016 of CAT, Union of India has filed the present
writ petition.
16. Counter affidavit has been filed by respondent No.1.
Interestingly, instead of himself swearing the affidavit, one
Sri Vikas Raj serving as Principal Secretary to the
Government of Telangana, General Administration
Department has sworn the affidavit. The affidavit,
however, does not disclose that he was authorised by
respondent No.1 to swear the affidavit for and on his
behalf. We fail to understand as to why first respondent
himself could not swear his own affidavit.
16.1. Be that as it may, it is submitted that like first
respondent, there are many officers working in different
capacities in the State of Telangana. They were also
allotted to the State of Andhra Pradesh following
bifurcation. Assailing such allocation, they had filed
original applications like the first respondent. Taking note
of the fact that the officers were working in the State of
Telangana in different capacities, CAT refrained from
setting aside the revised allocation only on the ground
that it did not want to unsettle things. It is stated that in
terms of the judgment and order of CAT, the officers
allotted to the Telangana cadre are functioning in highly
responsible positions. They are ably assisting the state
administration machinery in a very efficient manner on
account of their domain expertise and experience. First
respondent is working as Chief Secretary to the
Government of Telangana. Any interference with the order
of CAT would lead to dislocation in the administration
besides jeopardising seniority position of the officers.
16.2. It is contended that CAT had examined the record
and after thorough consideration of all relevant aspects
had passed a reasoned order. No case for interference is
made out. Therefore, the writ petition should be
dismissed.
Submissions:
17. Sri T.Suryakaran Reddy, learned Senior Counsel and
the then Additional Solicitor General has elaborately
referred to the impugned judgment and order of CAT. He
has also referred to the relevant provisions of the
Reorganisation Act. In the course of his submissions,
learned Senior Counsel has laid great emphasis on Rule
5(1) of the Indian Administrative Service (Cadre) Rules,
1954 as well as Rule 16 of the All India Services (Death-
cum-Retirement Benefits) Rules, 1958. He submits that
CAT had erred on facts as well as on law in setting aside
the allocation of first respondent to the State of Andhra
Pradesh. Compounding the untenability of the aforesaid
order, CAT had issued directions to treat the first
respondent as an All India Service officer of the State of
Telangana with all consequential benefits. Such a
direction is completely untenable, he submits. According
to him, there could not have been and there is no good
reason to declare the guidelines framed by the Central
Government on the basis of recommendations of the
advisory committee for allocation of officers borne on the
cadre of undivided Andhra Pradesh to the two successor
States of Telangana and Andhra Pradesh as illegal and
arbitrary. Though CAT had declared the said guidelines to
be contrary to the All India Services Act, 1951, there is no
discussion or any analysis as to how there was any such
violation. Reliance placed by CAT on the guidelines framed
by the Central Government on the basis of the Agarwal
committee recommendations to find fault with the
guidelines framed by the Central Government on the basis
of recommendations of the advisory committee was not at
all justified. Guidelines framed by the Central Government
on the basis of Agarwal committee recommendations were
in relation to division of the State of Uttar Pradesh
following the Uttar Pradesh Reorganisation Act, 2000. On
the other hand, guidelines framed by the Central
Government on the basis of the recommendations of the
advisory committee were relating to bifurcation of the
composite State of Andhra Pradesh on the basis of the
Reorganisation Act. The two cannot be equated factually
and contextually. Merely because certain
recommendations made by the Agarwal committee does
not find place in the impugned guidelines based on the
recommendations of the advisory committee would not
render the latter illegal and arbitrary.
17.1. Insofar swapping of the first respondent with
another officer by the name of Sri Rajat Bhargava is
concerned, the same was not permissible because Sri
Rajat Bhargava belonged to a different batch; swapping in
respect of unreserved category was confined to officers of
the same batch only. However, in case of officers belonging
to the reserved categories, the guidelines provided for
swapping amongst officers spanning over more than one
batch. This has been explained in paragraph 8.5 of the
guidelines. It is stated that since there may be very few
SC, ST and OBC officers in a batch, in order to facilitate
greater choice to them swapping was not confined only to
one batch. This is a reasonable explanation. Therefore,
CAT was not justified in taking the view that denial of
such an opportunity to officers of unreserved category like
the first respondent was discriminatory.
17.2. His further contention is that Dr. P.K.Mohanty was
included in the advisory committee by virtue of his office.
At the time when the advisory committee was constituted,
he was the Chief Secretary of the undivided State.
Mandate of the advisory committee was to give certain
recommendations to the Central Government for framing
guidelines for the purpose of allocation of All India Service
officers of the combined State of Andhra Pradesh to the
two successor States. At the time of actual allocation, he
was not there as he had already superannuated.
Therefore, there was no question of him influencing
proceedings of the advisory committee to favour or give
undue benefit to his daughter and son-in-law.
17.3. He also submits that Dr. P.K.Mohanty had actually
retired from service on 28.02.2014 whereafter he was on
extended service till 30.06.2014. His offer of voluntary
retirement by waiving off the notice period was accepted
by the State Government whereafter he was allowed to go
on voluntary retirement on 01.06.2014. In terms of Note-2
below Explanation to sub-rule (3) of Rule 16 of the All
India Services (Death-cum-Retirement Benefits) Rules,
1958 that such a date of retirement shall be treated as a
non-working day. Therefore, Dr. P.K.Mohanty could not
have been included in the list of All India Service officers
borne on the cadre of undivided State of Andhra Pradesh
for the purpose of allocation to the two successor States of
Telangana and Andhra Pradesh.
17.4. He finally submits that an All India Service officer is
bound to serve in any part of India. He cannot claim as a
matter of right that he will serve in any particular state.
This is not permissible. He has no vested right to service
in a particular State. Judgment and order of CAT being
wholly untenable, the same is liable to be set aside and
quashed.
18. Sri D.V.Sitharam Murthy, learned Senior Counsel
representing the first respondent elaborately referred to
the discussions and findings rendered by CAT on the four
issues framed by it for consideration. Each of the findings
returned by CAT on the four issues is correct and legally
sound, he submits. Impugned judgment and order of CAT
is a well reasoned one and requires no interference.
18.1. Insofar the provision of swapping of officers is
concerned, he submits that there is no basis to exclude
direct recruit unreserved outsiders like the first
respondent. He submits that underlying principle
governing allocation of officers is traceable to Section
80(1)(b) of the Reorganisation Act; there must be fair and
equitable treatment to all officers affected by the division
of the composite State and consequential allocation to the
successor States. First respondent was denied such a fair
and equitable treatment. His representations were also not
properly considered.
18.2. Sri Sitharam Murthy, learned Senior Counsel after
referring to various documents on record submits that
Dr. P.K.Mohanty was working as on 01.06.2014.
Therefore, by virtue of paragraph 3 of the guidelines, his
name should have been included in the list of officers for
allocation. This has been rightly pointed out by CAT. Had
his name been included, the same would have materially
altered the position of the first respondent and his option
for the State of Telangana would have been accepted in
the ordinary course. He, therefore, submits that the
judgment and order of CAT is legally sound. Besides CAT
has taken a very pragmatic approach as well. Question of
interference with the judgment and order of CAT at this
belated stage would not arise.
19. Sri B.S.Prasad, learned Advocate General
representing the State of Telangana submits that the
judgment and order of CAT is just and proper and should
not be interfered with. Respondent No.2 has filed written
submissions. It is submitted that State of Telangana had
filed a formal counter affidavit before CAT wherein stand
taken was that exercise of allocation of officers was within
the purview of the Central Government. However, after the
allocation exercise was over and following the judgment
and order of CAT, first respondent who was directed to be
treated as an officer of Telangana, is now serving the State
of Telangana as Chief Secretary. He has worked in the
State of Telangana for a considerable period contributing
to the various developmental activities undertaken by the
State. Interfering with the judgment and order of CAT at
this stage may unsettle the settled position. State of
Andhra Pradesh has expressed no grievance to the
allocation of first respondent to the State of Telangana.
That being the position, question raised in the writ
petition is academic. Therefore, the judgment and order of
CAT which is a cogent and a well reasoned one should not
be disturbed.
20. In his reply submissions, Sri T.Suryakaran Reddy,
learned Senior Counsel submits that it is indeed
surprising that State of Telangana has adopted a
completely different and opposite stand in the writ
proceedings as against its stated position before CAT.
State of Telangana cannot blow hot and cold at the same
time. Before CAT, it sought for dismissal of the original
application filed by the first respondent. Now in the writ
proceedings instituted at the instance of the Central
Government, it is supporting the case of the first
respondent. Such contrary stand cannot be accepted.
21. Submissions made by learned counsel for the parties
have received the due consideration of the Court.
22. At the outset, it would be apposite to deal with the
judgment and order passed by CAT.
Order of CAT dated 29.03.2016:
23. After considering the rival pleadings and
submissions as well as considering the materials on
record, CAT framed four issues for consideration. The four
issues are as under:
(i) Whether the guidelines framed by
respondent No.1 on the basis of the Pratyush Sinha
Committee are illegal, arbitrary and in violation of All
India Services Act, 1971 (sic) and statutory
guidelines and rules made thereunder?
(ii) Whether inclusion of Dr. P.K.Mohanty,
IAS (1979) in the advisory committee as a member of
the committee vitiated its deliberations because two
of the officers viz., Smt Swetha Mohanty IAS (2011)
(Unreserved Outsider S.No.73) and Sri Rajpat
K Saini, IAS (2007) (OBC Outsider S.No.15) are his
daughter and son-in-law respectively?
(iii) Whether the list prepared comprising of
officers borne on the cadre of undivided State of
Andhra Pradesh as on 01.06.2014 slated for
distribution to the successor states is illegal and
arbitrary on account of non-inclusion of the name of
Dr P.K.Mohanty (who retired on 01.06.2014 i.e., one
day prior to the appointed day)? and
(iv) Whether the effective date of retirement
of Dr. P.K.Mohanty viz., 01.06.2014 amounts to a
non-working day as contended by the respondents?
23.1. Insofar the first issue is concerned, the same related
to challenge to the guidelines framed by the Central
Government on the basis of the recommendations made
by the Dr. Pratyush Sinha committee. It was the
contention of the first respondent that the guidelines
framed were contrary to the statute governing the service
conditions of All India Service officers and ultra vires the
constitutional provisions. Alternative submission was that
even assuming that the guidelines were valid, the
consequential allocation of officers and the procedure
followed were contrary to the guidelines. Resultantly, first
respondent was allotted to the State of Andhra Pradesh
despite option given for the State of Telangana. CAT noted
that guidelines dated 30.05.2014 allowed the option for
inter se swapping. But while an officer belonging to the
unreserved category in direct recruit or promotee quota
could exercise the option of swapping with an officer
belonging to the unreserved category of the same batch
only, officers belonging to the reserved categories were
given the option of swapping with another officer
belonging to the reserved category within the roster block
which encompassed more than one batch. This was held
to be not in conformity with Section 80(1)(b) of the
Reorganisation Act. That apart, it was held that guidelines
failed to provide equitable, just and fair treatment to all
the officers and that the classification was arbitrary, not
based on intelligible differentia having any rationale nexus
to the object sought to be achieved. CAT was also of the
opinion that recommendations of the U.C.Agarwal
committee for undertaking allocation of officers borne on
the cadre of the undivided State of Uttar Pradesh to the
successor States under the Uttar Pradesh Reorganisation
Act, 2000 which did not make any classification for
exercising the option of swapping should have been
followed in the present case. CAT further noted that the
first respondent belonged to the 1989 batch and was
classified under the direct recruit outsider unreserved
category. He being the only officer under that category of
that batch, he had no option to swap since no other officer
of the same category and batch was available. Though an
option was given by the first respondent for swapping with
another officer, namely, Sri Rajat Bhargava of the 1990
batch, the same was not considered being of a different
batch. In the circumstances, CAT held that classification
of the officers of the same batch into two groups i.e.,
unreserved and reserved categories for the purpose of
exercising their option for mutual swapping and imposing
unreasonable restriction on unreserved category by
confining their option of mutual swapping to the same
batch of officers only whereas in case of unreserved
category of officers, it was made available to more than
one batch was violative of Articles 14 and 16 of the
Constitution of India, being illegal and arbitrary.
Resultantly, it was held that guidelines framed by the
Central Government on the basis of the recommendations
of the Pratyush Sinha committee were illegal, arbitrary
and violative of the All India Services Act, 1971 (sic).
23.2. The second issue framed was whether inclusion of
Dr. P.K.Mohanty, IAS (1979) as a member of the advisory
committee had vitiated its deliberations because two of the
officers who were seeking allocation were his daughter
Smt. Swetha Mohanty, IAS (2011) (unreserved outsider
S.No.73) and his son-in-law Sri Rajat K. Saini, IAS (2007)
(OBC outsider S.No.15).
23.3. Dr. P.K.Mohanty was included as a member of the
advisory committee to frame guidelines for allocation of All
India Service officers borne on the cadre of the undivided
State of Andhra Pradesh to the two successor States of
Telangana and Andhra Pradesh in the capacity of being
the Chief Secretary of the composite State of Andhra
Pradesh. According to CAT, this ought not to have been
done as the authorities were well aware of the fact that
Dr. P.K.Mohanty's daughter and son-in-law were both IAS
officers of the composite State of Andhra Pradesh and
their names were included in the list of officers for
allocation. As a matter of fact, it was observed that
Dr. P.K.Mohanty himself ought to have declined to become
a member of the advisory committee as there was every
likelihood of conflict of interest. CAT held that although
there was nothing to prove that Dr. P.K.Mohanty's
daughter and son-in-law benefited from the guidelines or
got the guidelines manipulated to suit their claim of being
allocated to the Telangana cadre but the fact that
Dr. P.K.Mohanty was a member of the advisory committee
cast a shadow on his neutrality as well as on the
proceedings. Clarifying further, CAT held that though
Dr. P.K.Mohanty who was a member of the advisory
committee was not sitting on his own cause, but the
nearness of his relationship with the two officers would
give rise to a reasonable impression that
Dr. P.K.Mohanty would espouse the cause of his daughter
and son-in-law. Therefore, CAT held that inclusion of
Dr. P.K.Mohanty, IAS (1979) in the advisory committee
had vitiated its deliberations.
23.4. Insofar the third issue is concerned, the same
pertain to preparation of the list of officers borne on the
cadre of the undivided State of Andhra Pradesh as on
01.06.2014 and slated for allocation to the two successor
States. The list so prepared was held to be illegal and
arbitrary for non-inclusion of the name of
Dr. P.K.Mohanty who had retired on 01.06.2014 i.e., one
day prior to the appointed day. It was the contention of
the first respondent that had Dr. P.K.Mohanty, who was in
service as on 01.06.2014, been included in the list of
officers for allocation as per roster, first respondent would
have been allotted to the State of Telangana as per his
option. Though the date of retirement of Dr. P.K.Mohanty
i.e., 01.06.2014 was a Sunday, the same ought to have
been considered as a working day for him for the purpose
of his allocation.
23.5. On a perusal of the documents and materials on
record, CAT found that Dr. P.K.Mohanty was given
extension of service from 28.02.2014 A.N., for four months
i.e., upto 30.06.2014. Accordingly, he had attended office
from 01.03.2014 onwards. Vide G.O.Rt.No.1999 dated
12.05.2014, the then Government of Andhra Pradesh
permitted him to voluntarily retire from service on
01.06.2014 AN. He had attended office on 01.06.2014 and
had issued a number of government orders. Thus, he was
in service as on 01.06.2014. As per paragraph 3 of the
guidelines, his name ought to have been included in the
list of officers slated for distribution between the two
successor States, more so in terms of sub-section (4) of
Section 76 of the Reorganisation Act. According to CAT,
had his name been included in the list for allocation, first
respondent could have been allotted to the state of his
choice. Therefore, CAT held that list of officers borne on
the cadre of the composite State of Andhra Pradesh as on
01.06.2014 for allocation to the successor States was
illegal on account of non-inclusion of the name of
Dr. P.K.Mohanty.
23.6. Related to the third issue is the last issue framed by
CAT, namely, whether the effective date of retirement of
Dr. P.K.Mohanty i.e., 01.06.2014 amounted to a non-
working day? CAT held that Dr. P.K.Mohanty had retired
on 01.06.2014, on which date he had attended office and
had issued a number of government orders. As
Government of Andhra Pradesh had permitted his
voluntary retirement on 01.06.2014 AN and accordingly
he had retired, the date of his retirement i.e., 01.06.2014
could be treated as a working day. Since he was in service
as on 01.06.2014, his name should have been included in
the list of officers borne on the cadre of the composite
State of Andhra Pradesh as on 01.06.2014 for allocation
to the two successor States. This issue was answered
accordingly.
23.7. Thereafter, CAT passed the following order:
55. For the foregoing reasons and discussions made
above and in view of the facts and circumstances of
the case and after applying the ratio of the judgments
cited by the applicant, we are of the considered view
that the impugned guidelines notified by the 1st
respondent dated 30.05.2014 and the subsequent
process of allocation of officers of All India Services
borne on the cadre of the erstwhile State of Andhra
Pradesh to the successor States of Andhra Pradesh
and Telangana vide the impugned Revised Allocation
Order dated 05.03.2015 are liable to be quashed and
set aside on the ground of being arbitrary, illegal,
offending Article 14 of the Constitution of India and
also in violation of Section 80 of the Andhra Pradesh
Reorganization Act, 2014. However, in the interest of
administrative exigency and with a view not to
unsettle the settled things, we refrain ourselves from
doing so. The action on the part of the respondents
in constituting the Advisory Committee by including
Dr.P.K.Mohanty as a Member in the Committee and
issuing the Revised Allocation Order dated
05.03.2015 without including the name of Dr.
P.K.Mohanty in the list of officers to be allocated
though he was well in service as on 01.06.2014 is
certainly contrary to the rules and law. Keeping in
view the dictum laid down by the Apex Court in the
case of S.Ramanathan v. Union of India ((2001) 2 SCC
118), we have no hesitation to quash and set aside
the impugned order dated 05.03.2015 in so far as the
applicant is concerned and accordingly, the same is
quashed and set aside in so far as the applicant is
concerned. We further direct the respondents to treat
the applicant as an All India Service officer of the
State of Telangana cadre with all consequential
benefits. The interim order granted on 30.10.2014 is
made absolute.
24. Before we dilate on the correctness or otherwise of
the findings returned by CAT, it would be apposite to refer
to the relevant legal provisions.
Legal Framework:
25. Part XIV of the Constitution of India deals with
services under the Union and the States. Article 312
which is included in Part XIV deals with All India Services.
As per clause (1), notwithstanding anything in Chapter VI
of Part VI and Part XI, if the Council of States has declared
by resolution supported by not less than two-thirds of the
members present and voting that it is necessary or
expedient in the national interest so to do, Parliament may
by law provide for the creation of one or more All India
Services including an All India Judicial Service common to
the Union and the States and subject to the other
provisions of the said Chapter dealing with services,
regulate the recruitment and the conditions of service of
persons appointed, to any such service. Clause (2) says
that the services known at the commencement of the
Constitution as the Indian Administrative Service (IAS)
and the Indian Police Service (IPS) shall be deemed to be
services created by Parliament under Article 312. Clauses
(3) and (4) are not relevant for the present discourse in as
much as those pertain to All India Judicial Service.
25.1. Thus, what Article 312 provides for is creation of one
or more All India Services common to the Union and the
States if it is considered necessary or expedient in the
national interest.
26. Parliament has enacted the All India Services Act,
1951 to regulate the recruitment and conditions of service
of persons appointed to the All India Services common to
the Union and the States. The aforesaid Act provides for
constitution of new All India Services other than the
existing two All India Services, namely IAS and IPS.
Section 2A provides for such constitution. One of the new
All India Services is the Indian Forest Service (IFS).
Section 3 deals with regulation of recruitment and
conditions of service. As per sub-section (1), the Central
Government may after consultation with the Governments
of the States concerned and by notification in the official
gazette make rules for the regulation of recruitment and
the conditions of service of persons appointed to an All
India Service. As per sub-section (2), every rule made by
the Central Government under Section 3 and every
regulation made under or in pursuance of such rule, shall
be laid, as soon as may be after such rule or regulation is
made, before each House of Parliament.
27. In exercise of the powers conferred by sub-section (1)
of Section 3 of the All India Services Act, 1951, the Central
Government after consultation with the Governments of
the States made the Indian Administrative Service (Cadre)
Rules, 1954. Rule 2(a) defines "cadre officer" to mean a
member of the Indian Administrative Service. "Cadre post"
has been defined in Rule 2(b) to mean any of the post
specified under item (1) of each cadre in the schedule to
the Indian Administrative Service (Fixation of Cadre
Strength) Regulations, 1955.
27.1. Rule 3 deals with constitution of cadres. Sub-rule (1)
says that there shall be constituted for each State or
group of States an Indian Administrative Service cadre. As
per sub-rule (2), the cadre so constituted shall be referred
to as the state cadre for a state and joint cadre for a group
of states.
27.2. As per sub-rule (1) of Rule 4, the strength and
composition of each of the cadres constituted under Rule
3 shall be determined by regulations made by the Central
Government in consultation with the State Governments.
Sub-rule (2) empowers the Central Government to
re-examine the strength and composition of each such
cadre in consultation with the State Government
ordinarily at the interval of every three years (after the
amendment in 1995, five years) and make such
alterations as it deems fit. But the proviso makes it very
clear that such a provision would not affect the power of
the Central Government to alter the strength and
composition of any cadre at any other time.
27.3. Allocation of members to various cadres is dealt with
in Rule 5. As per sub-rule (1), allocation of cadre officers
to various cadres shall be made by the Central
Government in consultation with the State Government or
the State Government concerned. In terms of sub-rule (2),
the Central Government may with the concurrence of the
State Government concerned, transfer a cadre officer from
one cadre to another cadre.
28. In pursuance of sub-rule (1) of Rule 4 of the Indian
Administrative Service (Cadre) Rules, 1954, the Central
Government in consultation with the Governments of the
States concerned made the Indian Administrative Service
(Fixation of Cadre Strength) Regulations, 1955. Insofar the
combined State of Andhra Pradesh was concerned, direct
recruitment posts were 257 and promotion posts were 74.
29. Exercising power under sub-section (1) of Section 3
of the All India Services Act, 1951, the Central
Government after consultation with the Governments of
the States concerned has framed the All India Services
(Death-cum-Retirement Benefits) Rules, 1958. Rule 16
deals with superannuation gratuity or pension. As per
sub-rule (1), a member of the service shall retire from the
service with effect from the afternoon of the last day of the
month in which he attains the age of sixty years. As per
the third proviso, a member of the service holding the post
of Chief Secretary to a State Government may be given
extension of service for a period not exceeding six months
on the recommendations of the State Government with full
justification and in public interest with the prior approval
of the Central Government.
29.1. Rule 16(2) says that a member of the service may,
after giving at least three months previous notice in
writing to the State Government concerned, retire from
service on the date on which such member completes
thirty years of qualifying service or attains fifty years of
age or on any date thereafter as may be specified in the
notice. However, as per the second proviso, the State
Government concerned on a request made by the member
of the service may, if satisfied and for reasons to be
recorded in writing, relax the period of notice. Similarly,
under Rule 16(3), the Central Government in consultation
with the concerned State Government may require a
member of the service to retire from service in public
interest after giving three months previous notice in
writing or three months pay and allowances in lieu of such
notice. Note-2 below Explanation to Rule 16(3) mentions
that in the case of a member of service who retires under
sub-rule (2) etc, the date of retirement shall be treated as
a non-working day.
30. Likewise, the Central Government after consultation
with the Governments of the States has framed the All
India Services (Conditions of Service-Residuary Matters)
Rules, 1960. As per Rule 3, if the Central Government is
satisfied that the operation of any rules made or deemed
to have been made under the All India Services Act, 1951
or any regulation made under any such rule regulating
the conditions of service of persons appointed to the All
India Services causes undue hardship in any particular
case, it may, by order, dispense with or relax the
requirements of that rule or regulations, as the case may
be, to such extent and subject to such exceptions and
conditions as it may consider necessary for dealing with
the case in a just and equitable manner.
30.1. Similarly, Central Government has framed the
Indian Administrative Service (Regulations of Seniority)
Rules, 1987. Rule 6 deals with fixation of seniority of
officers transferred to another cadre. Sub-rule (1) says
that if a direct recruit officer is transferred from one cadre
to another in public interest, his year of allotment shall
remain unchanged and his inter se position among the
direct recruits having the same year of allotment in the
cadre to which he is transferred shall remain the same as
determined in accordance with Rule 10 of the Indian
Administrative Service (Probation) Rules, 1954. Rule 10 of
the aforesaid Rules deals with seniority of probationers. As
per sub-rule (1), the Central Government shall prepare a
list of all probationers who are recruited to the service
under sub-rule (1) of Rule 3 and are assigned the same
year of allotment. Such list shall be arranged in order of
merit which shall be determined in accordance with the
aggregate marks obtained by each probationer at the
competitive examination etc.
31. The composite State of Andhra Pradesh was
bifurcated into the successor States of Telangana and the
residual State of Andhra Pradesh by the Andhra Pradesh
Reorganisation Act, 2014 (already referred to as 'the
Reorganisation Act'). Section 2(a) defines "appointed day"
to mean the day which the Central Government may by
notification in the official gazette appoint.
31.1. It may be mentioned that Central Government by
notification in the official gazette, had appointed
02.06.2014 as the appointed day.
31.2. Section 2(h) deals with "population ratio". It says
that population ratio in relation to the States of Andhra
Pradesh and Telangana would mean the ratio of 58.32 :
41.68 as per the 2011 census. Section 2(j) defines
"successor State" to mean in relation to the existing State
of Andhra Pradesh, the State of Andhra Pradesh or the
State of Telangana, as the case may be.
31.3. Part VIII of the Reorganisation Act contains the
provisions as to services. Section 76 deals with provisions
relating to All India Services. Section 76(1)(a) defines, the
expression "state cadre" in relation to IAS as having the
same meaning assigned to it in the Indian Administrative
Service (Cadre) Rules, 1954. Sub-section (2) of Section 76
says that in place of the cadres of IAS, IPS and IFS for the
existing State of Andhra Pradesh, there shall, on and from
the appointed day, be two separate cadres, one for the
State of Andhra Pradesh and the other for the State of
Telangana in respect of each of the said services. In terms
of sub-section (3), the provisional strength, composition
and allocation of officers to the state cadres referred to in
sub-section (2) shall be such as the Central Government
may by order determine on or after the appointed day. As
per sub-section (4), members of each of the said services
borne on the Andhra Pradesh cadre immediately before
the appointed day shall be allocated to the successor State
cadres of the same service constituted under sub-section
(2) in such manner and with effect from such date or
dates as the Central Government may, by order, specify.
Sub-section (5) clarifies that nothing in Section 76 shall be
deemed to affect the operation, on or after the appointed
day, of the All India Services Act, 1951 or the rules made
thereunder.
31.4. Section 79 provides for provisions as to continuance
of officers in the same post. It says that every person who
immediately before the appointed day was holding or
discharging the duties of any post or office in connection
with the affairs of the existing State of Andhra Pradesh in
any area which on that day fell within one of the
successor States shall continue to hold the same post or
office in the successor State and shall be deemed, on and
from that day, to have been duly appointed to the post or
office by the Government of, or other appropriate authority
in that successor State. As per the proviso, nothing in
Section 79 shall be deemed to prevent a competent
authority, on and from the appointed day, from passing in
relation to such person any order affecting the
continuance in such post or office.
32. Section 80 of the Reorganisation Act being relevant,
the same is extracted hereunder:
80. Advisory committees: (1) The Central
Government may, by order, establish one or more
Advisory Committees, within a period of thirty days
from the date of enactment of the Andhra Pradesh
Reorganisation Act, 2014, for the purpose of
assisting it in regard to:
(a) the discharge of any of its functions under this
Part; and
(b) the ensuring of fair and equitable treatment to
all persons affected by the provisions of this Part and
the proper consideration of any representations made
by such persons.
(2) The allocation guidelines shall be issued
by the Central Government on or after the date of
enactment of the Andhra Pradesh Reorganization
Act, 2014 and the actual allocation of individual
employees shall be made by the Central Government
on the recommendations of the Advisory Committee:
Provided that in case of disagreement or conflict
of opinion, the decision of the Central Government
shall be final:
Provided further that necessary guidelines as
and when required shall be framed by the Central
Government or as the case may be, by the State
Advisory Committee which shall be approved by the
Central Government before such guidelines are
issued.
32.1. From a perusal of the above, it is seen that as per
sub-section (1) of Section 80, the Central Government may
by order establish one or more advisory committees within
a period of thirty days from the date of enactment of the
Reorganisation Act for the purpose of assisting it in regard
to (a) the discharge of any of its functions under Part VIII
and (b) ensuring fair and equitable treatment to all
persons affected by the provisions of Part VIII and the
proper consideration of any representations made by such
persons. In terms of sub-section (2), allocation guidelines
shall be issued by the Central Government on or after the
date of enactment of the Reorganisation Act and the
actual allocation of individual employees shall be made by
the Central Government on the recommendations of the
advisory committee. As per the first proviso, in case of
disagreement or conflict of opinion, the decision of the
Central Government shall be final. Second proviso says
that necessary guidelines as and when required shall be
framed by the Central Government or as the case may be
by the State Advisory Committee which shall be approved
by the Central Government before such guidelines are
issued.
33. Section 81 empowers the Central Government to
issue directions. Central Government may give such
directions to the State Government of Andhra Pradesh and
the State Government of Telangana as may appear to it to
be necessary for the purpose of giving effect to the
provisions of Part VIII and the State Governments shall
comply with such directions.
Material Papers:
34. We may now refer to the material papers having a
bearing on the lis. By G.O.Rt.No.837 dated 28.02.2014
issued by the Secretary to the Government of Andhra
Pradesh, General Administration (Spl.A) Department, it
was mentioned that Government of Andhra Pradesh had
granted extension in service of Dr. Prasanna Kumar
Mohanty, IAS (1979) who was the Chief Secretary at that
point of time and who was due to retire from service on
28.02.2014 AN under the third proviso to Rule 16(1) of the
All India Services (Death-cum-Retirement Benefits) Rules,
1958 and as per approval accorded by the competent
authority for a period of four months beyond 28.02.2014
upto 30.06.2014 in public interest. It was notified that
Dr. Prasanna Kumar Mohanty, IAS (1979) would retire
from service on the afternoon of 30.06.2014.
35. By subsequent G.O.Rt.No.1999 dated 12.05.2014 of
the Secretary to the Government of Andhra Pradesh,
General Administration (Spl.A) Department, it was
mentioned that Dr. P.K.Mohanty, IAS had requested the
Government to permit him to retire from IAS voluntarily
with effect from 01.06.2014 duly waiving the three months
notice period as provided under the All India Services
(Death-cum-Retirement Benefits) Rules, 1958. State
Government agreed to such request and permitted
Dr. P.K.Mohanty, IAS to retire from service voluntarily
with effect from 01.06.2014 AN in terms of sub-rule (2) of
Rule 16 of the All India Services (Death-cum-Retirement
Benefits) Rules, 1958 read with the second proviso
thereunder waiving the three months notice period.
Accordingly, notification to that effect was issued notifying
retirement of Dr. P.K.Mohanty, IAS (1979) from IAS with
effect from 01.06.2014 AN.
36. On 01.06.2014, G.O.Rt.No.2339 was issued by the
Government of Andhra Pradesh in the General
Administration (Spl.A) Department stating that
consequent upon voluntary retirement of
Dr. P.K.Mohanty, IAS (1979), Chief Secretary to the
Government of Andhra Pradesh on 01.06.2014 AN, Sri
I.Y.R.Krishna Rao, IAS (1979), Chief Commissioner of
Land Administration and Special Chief Secretary was
placed in full additional charge of the post of Chief
Secretary to the Government of Andhra Pradesh until
further orders.
36.1. We will deal with the issue as to whether
Dr. P.K.Mohanty was in service as on 01.06.2014 when we
will analyse the decision of CAT pertaining to the above
aspect.
37. Government of India in the Ministry of Personnel,
Public Grievances and Pensions, Department of Personnel
and Training issued notification dated 28.03.2014. The
said notification mentioned that in exercise of powers
conferred by sub-section (1) of Section 80 of the
Reorganisation Act, the Central Government constituted
an advisory committee comprising of the following:
1. Sri Pratyush Sinha, IAS (BH) (1969) - Chairman
2. Chief Secretary, Govt. of AP - Member
3. Special Secretary (IS), MHA, New Delhi- Member
4. IG (Forests)-cum-SS, Ministry of
Environment and Forest, New Delhi - Member
5. Additional Secretary (Services &
Vigilance), DOPT, New Delhi - Member Secretary
37.1. The terms of reference of the advisory committee
were as under:
(i) To make suitable recommendations regarding
determination of the cadre strength of the three All
India Services, namely, IAS, IPS & IFS of the two
successor States, namely, Andhra Pradesh and
Telangana on the basis of objective and transparent
principles to be evolved by the committee within one
week from the date of this notification.
(ii) To consider and take a view on any
representation(s)/comment(s) made by the
stakeholder(s) with reference to such determination
of cadre strength and principles, after the same is
placed on the respective website of the three AIS for a
period of one week and thereafter make suitable
recommendations regarding the issues that may be
raised through these representations, within a period
of one week.
(iii) To recommend objective and transparent
criteria for the allocation/distribution of personnel
belonging to the three All India Services, i.e. IAS, IPS
& IFS & borne on the existing cadre of Andhra
Pradesh between the two successor States namely
Andhra Pradesh and Telangana within three weeks
from the date of the notification.
(iv) To further subdivide the total authorized
strength of the three All India Services as approved
by the competent authority after final
recommendation of the committee as mentioned in
Para (ii) above, into Direct Recruitment Quota and
Promotion Quota wise; Unreserved, OBC, SC and ST
wise; and Insider and Outsider wise for the two
successor States namely Andhra Pradesh and
Telangana arising out of the existing State of Andhra
Pradesh immediately after approval of the
determination of cadre strength, as mentioned at
Point No. (ii) above or approval of the criterion for
allocation/distribution by the competent authority,
as mentioned at Point No.(iii) above, whichever is
later.
(v) To recommend specific individual
allocation/distribution of All India Service officers in
accordance with the allocation guidelines as
approved by the competent authority, within one
week after completion of the further sub-division of
authorized cadre strength, as mentioned at Point
No.(iv) above.
(vi) To consider any representation(s) made by an
All India Service officer(s) who is/are affected by such
recommendations regarding individual allocation/
distribution, as mentioned at point No.(v) above after
the same is placed in the websites of the respective
cadre controlling authority of AIS, for one week,
inviting representations, in order to ensure a fair and
equitable treatment to all and make appropriate
recommendations, if any, within one week from the
closure of accepting representations from
stakeholders.
37.2. Thus, the mandate of the advisory committee was to
make suitable recommendations regarding determination
of the cadre strength of the three All India Services of the
two successor States of Andhra Pradesh and Telangana on
the basis of objective and transparent principles to be
evolved by the committee. The advisory committee was
also under a mandate to consider any representation
made by a stakeholder and take a view thereon. Advisory
committee was required to recommend objective and
transparent criteria for allocation/distribution of
personnel belonging to the three All India Services borne
on the existing cadre of Andhra Pradesh between the two
successor States of Andhra Pradesh and Telangana; to
further subdivide the total authorised strength of the three
All India Services as approved by the competent authority
after final recommendation of the committee into direct
recruit quota and promotion quota; unreserved, OBC, SC
and ST; and insider and outsider-wise; for the two
successor States arising out the existing State of Andhra
Pradesh. Thereafter, the advisory committee was required
to recommend specific individual allocation/distribution of
All India Service officers in accordance with the allocation
guidelines as approved by the competent authority.
38. Advisory committee after due consultation and
deliberation made the recommendations, whereafter
Central Government approved a set of guidelines for
allocation of All India Service officers borne on the
undivided cadre of Andhra Pradesh between the two
successor States of Telangana and Andhra Pradesh. As
per paragraph 1 of the guidelines, the main features of All
India Service cadre of the undivided State of Andhra
Pradesh with respect to direct recruits and promotees as
well as reserved and general categories should be reflected
in the cadres of the two successor States to the extent
possible. In terms of paragraph 2, allocation of such
officers should correspond to the cadre strength
distributed to the two successor States in the ratio of
administrative districts i.e., 13 in residual Andhra
Pradesh and 10 in the State of Telangana, meaning
thereby that allocation of officers would also be done in
the same ratio.
38.1. Paragraph 3 says that direct recruit and promotee
officers borne on the cadre of undivided Andhra Pradesh
on the day immediately before the appointed day i.e.,
02.06.2014 would be distributed between the two
successor States in the same ratio in which the respective
cadre strength of direct recruits and promotion quota have
been distributed between them.
38.2. As per paragraph 5.1, the first task would be to
compute the number of direct recruit insider officers of
each category i.e., UR, OBC, SC and ST to be allocated to
the two successor States. Paragraph 5.2 says that the
same procedure adopted for computing the number of
direct recruit insider category would be adopted for
determining the number of categorywise direct recruit
outsider officers to the two successor States.
38.3. Paragraph 7 deals with promotion quota and direct
recruit insiders. Likewise paragraph 8 deals with direct
recruit outsiders. Allocation of officers under the direct
recruit outsider category was to be done on the basis of
lottery. Based on the outcome of the lottery, the size of the
roster block would be decided.
38.4. Paragraphs 8.4 and 8.5 are relevant and those are
extracted as under:
8.4 The tentative allocation for all the 80 officers
thus having been determined, the officers of one
batch will be grouped together. Depending on the
outcome of the lottery, the first opportunity to either
go to the state to which he/she is earmarked or
attempt to swap with another in the batch who would
like to go to that state instead, would be that of the
officer falling on the roster point. The modalities
thereafter would be the same as has been described
in para 7.1 & 7.2 above.
8.5 Since there may be very few SC, ST and OBC
officers in a batch, in order to facilitate greater choice
to them, such officers need not be grouped batch-
wise but the allocation would be done from the roster
block which in the normal course would be spanning
a few batches.
38.5. Thus as per paragraph 8.4, officers of one batch
would be grouped together. Depending on the outcome of
the lottery, the first opportunity to either go to the state to
which he/she was earmarked or attempt to swap with
another in the batch who would like to go to that state
instead would be that of the officer falling on the roster
point. However, as per paragraph 8.5, there being very few
SC, ST and OBC officers in a batch, in order to facilitate
greater choice to them such officers need not be grouped
batch-wise but allocation would be done from the roster
block which in the normal course would be spanning a
few batches.
38.6. Paragraph 9 provided a grievance redressal
mechanism to an aggrieved All India Service officer to
make a representation to the Central Government which
would be considered by the advisory committee by
ensuring a fair and equitable treatment to all.
39. We find that a notification dated 30.05.2014 was
issued by Government of India in the Ministry of
Personnel, Public Grievances and Pensions, Department of
Personnel and Training, provisionally allocating 44 IAS
officers borne on the undivided cadre of Andhra Pradesh
to the State of Telangana cadre of IAS with effect from
02.06.2014. This was followed by G.O.Rt.No.2332 dated
31.05.2014 of the Government of Andhra Pradesh in the
General Administration (Spl.A) Department notifying the
said list of 44 officers provisionally allocated to the State
of Telangana. Name of first respondent was not included
in the list of Indian Administrative Service officers
allocated to the State of Telangana though he had given
option for Telangana.
40. Insofar the first respondent is concerned, he was
allotted to Andhra Pradesh on the basis of roster point
and roster block. In the remarks column, it was remarked
against his name that he was a single officer belonging to
direct recruit unreserved category of his batch (1989).
Therefore, swapping was not possible. Accordingly, vide
the revised allocation list dated 05.03.2015, his allocation
to Andhra Pradesh was maintained.
Analysis:
41. Having surveyed the legal position and material
papers, we may now examine the correctness of the
findings of CAT.
42. The first issue examined by CAT and as already
discussed above was whether the guidelines framed by the
Central Government on the basis of the recommendations
of the advisory committee (Pratyush Sinha committee)
were illegal, arbitrary and in violation of the All India
Services Act, 1951.
42.1. CAT took the view that allowing options for inter se
swapping to one set of officials and denying the same to
another set of officers was an irrational classification.
While an officer belonging to the unreserved category in
direct recruit or promotee quota could exercise the option
of swapping only with an officer belonging to the
unreserved category of the same batch, option of swapping
was available to the reserved category officers for more
than one batch. This was held to be irrational besides not
meeting the requirement of fair and equitable treatment as
contemplated under Section 80(1)(b) of the Reorganisation
Act. We are afraid CAT has misconstrued the guidelines
framed in this regard. It was mentioned in paragraph 8.5
that there being very few SC, ST and OBC officers in a
batch, in order to facilitate greater choice to them, such
officers were not grouped batch-wise but a roster block
was maintained covering more than one batch. This
explanation is a reasonable one and cannot simply be
brushed aside as being irrational. The said provision was
made to ensure fair and equitable treatment to officers
belonging to the aforesaid categories. It is an admitted fact
which was also acknowledged by CAT that first
respondent was the only officer belonging to the
unreserved direct recruit outsider category of 1989 batch.
Though he sought for swapping with another officer,
namely Sri Rajat Bhargava who was allotted Telangana
State, mutual swapping was not possible because Sri
Rajat Bhargava belonged to the 1990 batch. Merely on the
above basis, CAT was not justified in holding such
guidelines to be violative of Articles 14 and 16 of the
Constitution of India. Further, CAT has not given any
reason as to how such guidelines can be construed to be
violative of the All India Services Act, 1951.
42.2. That apart, CAT was not justified in taking the view
that the guidelines framed by the Central Government on
the basis of the recommendations of the advisory
committee were dissimilar to the guidelines framed by the
Central Government pursuant to the recommendations of
the U.C.Agarwal committee pertaining to reorganisation of
the State of Uttar Pradesh; rather the view taken is that
recommendations of the U.C.Agarwal committee were not
incorporated in the present guidelines; unlike in the
present case, guidelines framed by the Central
Government on the basis of the U.C.Agarwal committee
recommendations did not make any classification for
exercising the option of swapping. While the U.C.Agarwal
committee was set up under the Uttar Pradesh
Reorganisation Act, 2000, the advisory committee or the
Pratyush Sinha committee was set up under the
Reorganisation Act. Both enactments are different. Merely
because guidelines were issued by the Central
Government in both the cases and subject matter being
the same, i.e., allocation of officers of the erstwhile
combined state to the successor states, it does not mean
that recommendations of the Pratyush Sinha committee or
the guidelines framed by the Central Government based
thereon, would have to conform to the recommendations
of the Agarwal committee or the guidelines framed by the
Government of India on the basis of the recommendations
of the Agarwal committee. Because the two sets of
guidelines are different and because guidelines framed
under the Reorganisation Act do not conform to the
Central Government guidelines in respect of Uttar Pradesh
would not render the guidelines under the Reorganisation
Act illegal, arbitrary or violative of Articles 14 and 16 of
the Constitution of India.
42.3. That being the position, CAT was not justified in
holding the guidelines for allocation of All India Service
officers borne on the undivided cadre of Andhra Pradesh
between the two successor States of Telangana and
Andhra Pradesh as illegal, arbitrary and violative of the All
India Services Act, 1951.
43. The second issue dealt with by CAT was whether
inclusion of Dr. P.K.Mohanty as a member in the advisory
committee had vitiated its deliberations because two of the
officers who were required to be allocated were his
daughter and son-in-law. Insofar this issue is concerned,
CAT had observed that there was nothing to prove that
Mohanty's daughter and son-in-law were benefited by the
guidelines; that the guidelines were manipulated by
Mohanty in order to ensure that his daughter and son-in-
law could get their preferred choice i.e., Telangana cadre.
It was further held by CAT that Dr. P.K.Mohanty as a
member of the advisory committee was not sitting on his
own cause but went on to hold that the nearness of his
relationship with two of the officers to be allocated gave an
impression that Dr. P.K.Mohanty was espousing the cause
of his daughter and son-in-law.
43.1. It is trite law that one cannot be a judge in his own
cause. Further, there need not be any actual instance of
any bias. However, having noticed that, it needs to be
mentioned that Dr. P.K.Mohanty was not a member of any
selection committee or a committee of like nature where
his daughter and son-in-law were candidates for selection.
He was made a member of the advisory committee by
virtue of the office which he was holding i.e., Chief
Secretary of the combined State of Andhra Pradesh to
make recommendations to the Central Government to
frame guidelines for allocation of officers borne on the
cadre of the composite State of Andhra Pradesh to the two
successor States of Telangana and Andhra Pradesh. The
advisory committee of which he was a member was
headed by Sri Pratyush Sinha who is unconnected with
the State of Andhra Pradesh. Mandate of the advisory
committee, as discussed above, was to make
recommendations to frame guidelines for allocation of All
India Service officers borne on the cadre of the composite
State of Andhra Pradesh to the successor States of
Telangana and Andhra Pradesh. Advisory committee had
submitted its recommendations, whereafter it was the
Central Government which had issued the guidelines. It is
nobody's case that Dr. P.K.Mohanty had influenced the
advisory committee to make certain recommendations so
as to benefit his daughter and son-in-law; it is nobody's
case that he had influenced the Central Government to
approve such recommendations and issue the necessary
guidelines benefiting his daughter and son-in-law. As a
matter of fact, nothing has been pointed out or nothing
has been alleged as to which of the guidelines had
benefited the daughter and son-in-law of
Dr. P.K.Mohanty. We may mention that at the time of
actual allocation of the officers to the two successor States
i.e., on 10.10.2014 and finally on 05.03.2015,
Dr. P.K.Mohanty was no longer in service having retired
much earlier and therefore he no longer continued in the
advisory committee.
43.2. In our view, CAT on the basis of general principles
had arrived at a sweeping conclusion that inclusion of
Dr. P.K.Mohanty in the advisory committee as a member
had vitiated its deliberations and ultimately the
allocations. Such a farfetched conclusion is not supported
by the record and is not at all logical.
44. That brings us to the third and fourth issues which
are, whether Dr. P.K.Mohanty had retired on 01.06.2014
and therefore, ought to have been included in the list of
officers borne on the cadre of undivided State of Andhra
Pradesh as on 01.06.2014 and who was required to be
allocated to either of the two successor States. The fourth
issue is corollary to the above, i.e., whether the date of
retirement of Dr. P.K.Mohanty (01.06.2014) could be
construed as a non-working day, though a Sunday?
45. Coming to the third issue, the same pertains to the
list of officers borne on the cadre of the undivided State of
Andhra Pradesh as on 01.06.2014 for allocation to the
successor States of Telangana and Andhra Pradesh. The
same was held to be illegal and arbitrary on account of
non-inclusion of the name of Dr. P.K.Mohanty in the said
list, though he was working on 01.06.2014 i.e., one day
prior to the appointed day which is 02.06.2014.
45.1. Paragraph 3 of the guidelines is relevant for the
present discourse. It reads as under:
3. Direct recruit (DRs) and Promoted Officers (PQs)
borne on the undivided Andhra Pradesh cadre on the
day immediately before the appointed day i.e., 2nd
June, 2014, would be distributed between the two
successor States in the same ratio in which the
respective cadre strength of DR and PQ quota have
been distributed between them i.e., any surpluses or
deficits of officers in position vis-à-vis the total
authorized strength of the undivided state would be
divided proportionately between the successor States,
to the extent it is possible to do so.
45.2. From the above, what is discernible is that direct
recruit and promotee officers borne on the cadre of
undivided Andhra Pradesh on the day immediately before
the appointed day would be distributed between the two
successor States in the same ratio in which the respective
cadre strength of direct recruit and promotion quota have
been distributed between them. Appointed day being
02.06.2014, the day immediately before that day would be
01.06.2014. Therefore, this guideline provides that those
officers who were in the cadre of undivided Andhra
Pradesh as on 01.06.2014 would be allocated to the two
successor States.
45.3. According to the first respondent, Dr. P.K.Mohanty
was in service as on 01.06.2014. Therefore his name
should have been included in the list for allocation. Had
his name been included in the list of officers eligible for
allotment, it would have ensured that the first respondent
would have been allocated as per his option i.e., State of
Telangana. Agreeing with the aforesaid contention of the
first respondent, CAT had noted that Government of
Andhra Pradesh had permitted Dr.P.K.Mohanty to go for
voluntary retirement on 01.06.2014 AN. Dr.P.K.Mohanty
had attended office on 01.06.2014 and had issued a
number of government orders on that day. Therefore,
according to CAT, he was in service as on 01.06.2014. As
per the aforesaid guidelines, his name should have been
included in the list of officers for distribution between the
two successor States. Even as per sub-section (4) of
Section 76, name of Dr. P.K.Mohanty should have been
included. Therefore, CAT held that non-inclusion of
Dr. P.K.Mohanty in the list of officers for the purpose of
allocation to the two successor States was illegal and
arbitrary.
45.4. Sub-section (4) of Section 76 of the Reorganisation
Act reads as follows:
(4) The members of each of the said services
borne on the Andhra Pradesh cadre immediately
before the appointed day shall be allocated to the
successor State cadres of the same service constituted
under sub-section (2) in such manner and with effect
from such date or dates as the Central Government
may, by order, specify.
45.5. Thus, what sub-section (4) of Section 76
contemplates is that members of each of the three All
India Services borne on the Andhra Pradesh cadre
immediately before the appointed day (02.06.2014) shall
be allocated to the successor States' cadres of the same
service. This position is clarified in paragraph 3 of the
guidelines as extracted above, which says that an officer
must be borne on the cadre of undivided Andhra Pradesh
as on 01.06.2014 to be included in the list for allocation to
the two successor States.
45.6. Insofar Dr. P.K.Mohanty is concerned, his date of
retirement from service on attaining the age of
superannuation was 28.02.2014 AN. On that day he had
attained the age of sixty years. However, by G.O.Rt.No.837
dated 28.02.2014, he was given extension of service for a
period of four months in public interest. It was mentioned
in the said G.O.Rt.No.837 that Dr. P.K.Mohanty would
retire from service on the afternoon of 30.06.2014.
Thereafter G.O.Rt.No.1999 dated 12.05.2014 was issued
which says that Dr. P.K.Mohanty had requested the
Government to permit him to retire from service
voluntarily with effect from 01.06.2014 by waiving the
three months notice period in terms of Rule 16(2) of the
All India Services (Death-cum-Retirement Benefits) Rules,
1958 which was accepted. Accordingly, Government of
Andhra Pradesh notified retirement of Dr. P.K.Mohanty
from service with effect from 01.06.2014 AN.
45.7. Consequently, G.O.Rt.No.2339 dated 01.06.2014
was issued stating that consequent upon the voluntary
retirement of Dr. P.K.Mohanty, Chief Secretary to the
Government of Andhra Pradesh on 01.06.2014 AN, Sri
I.Y.R.Krishna Rao was given full additional charge of the
post of Chief Secretary. As already noticed above, the date
of superannuation of Dr. P.K.Mohanty was 28.02.2014 AN
when he had completed sixty years. He was given four
months extension in public interest up to 30.06.2014.
45.8. Much before 30.06.2014, in fact much before
01.06.2014, Dr. P.K.Mohanty had requested the
Government to allow him to retire from service voluntarily
with effect from 01.06.2014 by waiving the three months
notice period. This was accepted by then Government of
Andhra Pradesh vide G.O.Rt.No.1999 dated 12.05.2014.
Accordingly, it was notified by the Government of Andhra
Pradesh vide G.O.Rt.No.2339 dated 01.06.2014 that
Dr. P.K.Mohanty had retired from service with effect from
01.06.2014AN and that on his retirement, Sri I.Y.R.
Krishna Rao was made the Chief Secretary. Therefore, a
view could be taken that Dr. P.K.Mohanty had ceased to
be in the cadre of the undivided State of Andhra Pradesh
on 01.06.2014. Such a view has been taken by the Central
Government and in our view, it is both a plausible and a
reasonable view; a pragmatic view as well. Dr.
P.K.Mohanty having retired from service, there was no
question of his further allocation or re-allocation to any of
the successor States. Therefore, his name could not have
been included in the list of officers belonging to the Indian
Administrative Service borne on the cadre of the undivided
State of Andhra Pradesh for the purpose of allocation to
the successor States of Telangana and Andhra Pradesh.
45.9. We have already noticed in the earlier part of this
judgment that as per Rule 16(1) of the All India Services
(Death-cum-Retirement Benefits) Rules, 1958, a member
of the service shall retire from the service with effect from
the afternoon of the last day of the month in which he
attains the age of sixty years. Insofar Dr. P.K.Mohanty is
concerned, the date of retirement as per sub-rule (1) of
Rule 16 was 28.02.2014. Thereafter he was on extended
service courtesy the Government of Andhra Pradesh for a
limited period of four months upto 30.06.2014, but before
that he had applied for voluntary retirement which was
accepted by the State Government after waiving of the
three months notice. Rule 16(2) provides for giving of such
three months previous notice. Further, as per the second
proviso, the State Government may waive off or relax the
period of such notice on the request made by the
concerned officer. This was done in the case of Dr.
P.K.Mohanty on 12.05.2014. Therefore, CAT was not
justified in coming to the conclusion that non-inclusion of
the name of Dr. P.K.Mohanty in the list of officers for
allocation vitiated the said list in its entirety. There was no
justification for coming to such a drastic conclusion.
46. The consequential issue, issue No.(iv), is whether
date of retirement of Dr. P.K.Mohanty i.e., 01.06.2014
could be considered as a non-working day. As already
noticed above, Government of Andhra Pradesh had
accepted the request of Dr. P.K.Mohanty to retire
voluntarily from his extended service with effect from
01.06.2014, on which date Mr. I.Y.R.Krishna Rao was
made the Chief Secretary. 01.06.2014 was in fact a
Sunday, a non-working day. That apart, Note-2 below the
Explanation to Rule 16(3) mentions that in the case of a
member of service who retires under Rule 16(2) of the All
India Services (Death-cum-Retirement Benefits) Rules,
1959, the date of retirement shall be treated as a
non-working day. Therefore, factually and legally the date
of retirement of Dr. P.K.Mohanty i.e., 01.06.2014 would
have to be treated as a non-working day. CAT fell in error
in treating the same as a working day and thereafter
holding that name of Dr. P.K.Mohanty should have been
included in the list of officers for allocation, further
holding that such non-inclusion had vitiated the entire
list. Such a finding is incorrect and is liable to be set
aside.
47. From a careful analysis of the above, we are of the
unhesitant opinion that CAT fell in error in interfering
with the allocation list and setting aside the same qua the
allocation of the first respondent to the State of Andhra
Pradesh. The order of CAT to that effect is legally and
factually untenable. That apart, the further direction of
CAT to treat the first respondent as an All India Service
officer of the State of Telangana with all consequential
benefits is wholly without jurisdiction. Such a direction
could not have been issued by CAT, the cadre controlling
authority being the Central Government. It is evident that
CAT had examined the challenge to the allocation order
made by the first respondent like an appellate authority
substituting its views for that of the Central Government
which is not permissible in law.
48. In Union of India v. Rajiv Yadav1, one Rajiv Yadav had
challenged the reservation provided in the process of
allocation by the Central Government in different States in
respect of direct recruits to the Indian Administrative
Service. Full Bench of CAT held that no reservation can
be provided for the Scheduled Castes/Scheduled Tribes
while allocating the members of IAS to various cadres.
This decision of CAT was challenged by the Central
Government before the Supreme Court. It was in that
context the Supreme Court referred to Rule 5 of the Indian
Administrative Service (Cadre) Rules, 1954, including sub-
rule (2) thereof, and 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 particular 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. A selected
candidate has a right to be considered for appointment to
the IAS but has no such right to be allocated to a cadre of
1 (1994) 6 SCC 38
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. It was held as
follows:
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 notify "the principles of
allocation" adopted by the Government as a policy. The
letter dated 31-5-1985 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.
6. 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 31-5-1985,
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 22
1/2% 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 Caste/Scheduled Tribe candidates to be
allocated to their home States. The principles of cadre
allocation, thus, ensure equitable distribution of
reserved candidates amongst all the cadres.
49. This decision of the Supreme Court has been
followed in Union of India v. Mhathung Kithan2 and again in
G.Srinivas Rao v. Union of India3.
50. We find that while passing the impugned judgment
and order CAT had placed reliance on the decision of the
Supreme Court in S.Ramanathan v. Union of India4. Question
before the Supreme Court in that case was whether the
appellants who were State Police Service officers and who
were promoted to the Indian Police Service, could
maintain a writ petition alleging inaction on the part of the
competent authority to have triennial review?
Consequential question was whether such inaction would
entitle the appellants to have a mandamus from the Court
2 (1996) 10 SCC 562
3 (2011) 8 SCC 123
4 (2001) 2 SCC 118
for review and for reconsideration of their case for
promotion to the Indian Police Service from an anterior
date. In that case, Tribunal, though came to the
conclusion that there was no such triennial review for
redetermination of the cadre strength, however declined to
issue mandamus. In the above factual backdrop, Supreme
Court considered as to what would be the effect of
infraction of Rule 4(2) of the Indian Police Service (Cadre)
Rules, 1954, which is pari materia to the Indian
Administrative Service (Cadre) Rules, 1954, and what
direction can be issued in the event of such infraction. It
was noticed that four different benches of CAT had issued
directions to the Central Government as well as the State
Governments to hold triennial review and reconsider the
case of promotion of the concerned State Police Service
officers. Those decisions were accepted and implemented
by the Central Government as well as by the State
Governments without any murmur. Supreme Court
considered the language of sub-rule (2) of Rule 4 as it
stood prior to its amendment in the year 1995 and held
that it required the Central Government to re-examine the
strength and composition of each cadre in consultation
with the State Government concerned. While
acknowledging that an infraction of the aforesaid provision
did not confer a vested right upon an officer for requiring
the Court to issue any mandamus but at the same time if
there has been an infraction and no explanation is
forthcoming from the Central Government indicating the
circumstances under which the exercise could not be
undertaken, the aggrieved party may well approach a
Court and the Court in its turn would be well within its
jurisdiction to issue appropriate directions depending
upon the circumstances of the case. It was in that context,
Supreme Court held that when certain power has been
conferred upon the Central Government for examining the
cadre strength, necessarily the same is coupled with a
duty to comply with the requirements of law and any
infraction on that score cannot be whittled down on the
hypothesis that no vested right of any employee is being
jeopardised. Therefore, Supreme Court set aside the order
of CAT and directed the Union of India as well as the State
Government to reconsider the question of promotion of the
state cadre officers to the Indian Police Service on the
basis of the re-determined strength of the cadre; if on
such reconsideration relief would be available to any of the
state cadre officers for promotion to IPS on the basis of the
quota available to them in the cadre, the same may be
given to them.
51. We are afraid, decision of the Supreme Court in
S.Ramanathan (surpa) was rendered in a completely
different factual context. The same could not have been
applied to the facts of the present case and that too for
directing the Central Government and the State to treat
the first respondent as an officer belonging to the State of
Telangana. Such a direction of CAT is totally untenable
and impermissible.
52. In Indradeo Paswan v. Union of India5 Supreme Court
was considering the issue arising out of Bihar
5 (2007) 7 SCC 250
Reorganisation Act, 2000, on the basis of which two
separate States of Jharkhand and Bihar came into
existence on 15.11.2000. Appellant therein had given his
preference to be allocated to the State of Jharkhand, but
he was allocated to the reorganized State of Bihar. This
came to be challenged by the appellant before the High
Court of Jharkhand in a writ proceeding which was
however dismissed. Writ appeal filed before the Division
Bench was also dismissed, whereafter matter reached the
Supreme Court. Supreme Court noticed that no case of
mala fides or irrationality was made out in the matter of
allocation of the appellant to the reorganized State of
Bihar. Main contention of the appellant for preferring
Jharkhand was that he had worked in Jharkhand for a
major part of his service. Rejecting the claim of the
appellant Supreme Court held that allocation of officers to
successor States should not be interfered with on
individual grievances relating to non-acceptance of options
exercised, unless clear illegality or Wednesbury
unreasonableness is established.
53. Before concluding, we may mention that no
prejudice in the legal sense can be said to have been
caused to the first respondent by his allocation to the
State of Andhra Pradesh. In terms of Rule 6(1) of the
Indian Administrative Service (Regulations of Seniority)
Rules, 1987 read with Rule 10 of the Indian
Administrative Service (Probation) Rules, 1954, seniority
of the first respondent in his cadre will not be disturbed
and will remain the same. As has been held by the
Supreme Court in Rajiv Yadav (supra), allocation to a cadre
is an incidence of service and no officer has a vested right
to claim allotment to a particular cadre.
Conclusion:
54. That being the position and upon a thorough
consideration of all aspects of the matter, we have no
hesitation in holding that CAT had grossly erred in
interfering with the allocation of the first respondent to the
State of Andhra Pradesh. Consequently, judgment and
order dated 29.03.2016 passed by CAT in O.A.No.1241 of
2014, being clearly unsustainable in law and on facts, is
hereby set aside and quashed.
55. Writ petition is accordingly allowed. However, there
shall be no order as to costs.
Miscellaneous applications, pending if any, shall
stand closed. There shall be no order as to cost.
______________________________________
UJJAL BHUYAN, CJ
______________________________________
SUREPALLI NANDA, J
Mr. M.Avinash Reddy, learned counsel representing
respondent No.1 prays for keeping the judgment in
abeyance for a period of three weeks to enable respondent
No.1 to avail his remedy.
Having considered the matter in detail and
pronounced the judgment, we are not inclined to stay the
same.
Accordingly, the prayer is declined.
______________________________________
UJJAL BHUYAN, CJ
______________________________________
SUREPALLI NANDA, J
10.01.2023
Note: LR copy be marked.
(By order)
pln
