# UNION OF INDIA AND ANR v. MS. A. SHAINAMOL, IAS AND ANR

- **Citation:** [2021] 11 S.C.R. 396
- **Court:** Supreme Court of India
- **Decided:** 2021-10-22
- **Case number:** Civil Appeal Nos. 11480-81 of 2018
- **Bench:** Hemant Gupta, V. Ramasubramanian
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-and-anr-v-ms-a-shainamol-ias-and-anr-34758
- **Pages:** 36

## Headnote

Service Law: All India Service - Appellant was candidate
seeking appointment to All India Service pursuant to Civil Services
Examination-2006 - She was successful and her name appeared at
serial no.20 - Applicant, though an OBC candidate, came on
general merit without resorting to the relaxed standard for the
candidates belonging to OBC - She was allotted Himachal Pradesh
Cadre after the consent of Himachal Pradesh Government -
Applicant filed O.A. before CAT (Tribunal) - The grievance of the
applicant was that she had a better merit than candidate-Merit No.
26 who was allocated the Maharashtra cadre as an OBC candidate
and, therefore, she should have been allocated the Maharashtra
cadre - Tribunal directed the Union of India to allot and
accommodate the applicant against the outsider OBC vacancy in
the Maharashtra Cadre by virtue of her merit over the candidate
already identified and allotted the Maharashtra Cadre - The Union
and the applicant aggrieved against the said order filed writ
petitions before the High Court - High Court held that five admitted
deficit vacancies were required to be filled up by following the
outsider-insider ratio in the given cycle of 30-point roster, then there
would be an insider vacancy, to be given either to the SC/ST or the
OBC - Since there was no SC/ST candidate, it had to be filled up by
insider OBC, i.e., the applicant - On appeal, held: High Court has
completely misread the statutory rules and the policy of allocation
of cadre - The Union had prescribed a procedure to be followed in
the allotment of cadre to the officers of All India Services on
30.07.1984 - All the cadres/joint cadres were divided into four
groups and the 24 States were arranged in alphabetical order -
Later, another procedure was circulated on 30/31.05.1985 - It is
the said allocation circular which was in force at the time of cadre
allocation for the year 2007 - Maharashtra, Manipur-Tripura,
Nagaland, Orissa, Punjab, Rajasthan and Sikkim fell in Group III
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[2021] 11 S.C.R. 396
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whereas Haryana, Himachal Pradesh, Jammu & Kashmir,
Karnataka, Kerala and Madhya Pradesh fell in Group II - The
applicant was allocated to the State of Himachal Pradesh and there
was a consent duly given by the State of Himachal Pradesh for her
allocation to that State - Therefore, mandate of r.5(1) of the Cadre
Rules is satisfied when consultation was made with the State to which
allocation was made - Applicant claimed allocation to the State of
Kerala, i.e., her home cadre - There were 4 senior candidates in
the general category - She was on merit as a general category
candidate, having not availed any of the relaxed standards meant
for a candidate of OBC category - In terms of proviso to r.7(3) of
the Recruitment Rules and the proviso to clause 16(1) in the
notification inviting applications for CSE-2006, the candidates
including the applicant were put to notice, that SC/ST or OBC
candidates will be treated as General Category Candidates who
have not availed any concession or relaxation - Applicant was thus
rightly treated as General Category candidate - In terms of Clause
16(2) of the CSE-2006 notification, the candidates belonging to
the SC/ST or OBC recommended against unreserved vacancies may
be adjusted against reserved vacancies by the Government, if by
this process they get a service of higher choice in the order of their
preference - The applicant was already allocated IAS as there was
no question of change of service - Therefore, as a general category
candidate, there was no occasion for consultation with State of
Kerala as the applicant was not even eligible to be considered for
allocation to the said State in terms of the allocation order - The
reasoning given by the High Court that there was cadre deficiency,
therefore, the applicant was entitled to be allocated is bereft of any
merit - High Court exceeded its jurisdiction to order allocation of
Kerala Cadre to the applicant without examining the policy deci

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SUPREME COURT REPORTS
[2021] 11 S.C.R.
UNION OF INDIA AND ANR
v.
MS. A. SHAINAMOL, IAS AND ANR
(Civil Appeal Nos. 11480-81 of 2018)
OCTOBER 22, 2021
[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]
Service Law: All India Service - Appellant was candidate
seeking appointment to All India Service pursuant to Civil Services
Examination-2006 - She was successful and her name appeared at
serial no.20 - Applicant, though an OBC candidate, came on
general merit without resorting to the relaxed standard for the
candidates belonging to OBC - She was allotted Himachal Pradesh
Cadre after the consent of Himachal Pradesh Government -
Applicant filed O.A. before CAT (Tribunal) - The grievance of the
applicant was that she had a better merit than candidate-Merit No.
26 who was allocated the Maharashtra cadre as an OBC candidate
and, therefore, she should have been allocated the Maharashtra
cadre - Tribunal directed the Union of India to allot and
accommodate the applicant against the outsider OBC vacancy in
the Maharashtra Cadre by virtue of her merit over the candidate
already identified and allotted the Maharashtra Cadre - The Union
and the applicant aggrieved against the said order filed writ
petitions before the High Court - High Court held that five admitted
deficit vacancies were required to be filled up by following the
outsider-insider ratio in the given cycle of 30-point roster, then there
would be an insider vacancy, to be given either to the SC/ST or the
OBC - Since there was no SC/ST candidate, it had to be filled up by
insider OBC, i.e., the applicant - On appeal, held: High Court has
completely misread the statutory rules and the policy of allocation
of cadre - The Union had prescribed a procedure to be followed in
the allotment of cadre to the officers of All India Services on
30.07.1984 - All the cadres/joint cadres were divided into four
groups and the 24 States were arranged in alphabetical order -
Later, another procedure was circulated on 30/31.05.1985 - It is
the said allocation circular which was in force at the time of cadre
allocation for the year 2007 - Maharashtra, Manipur-Tripura,
Nagaland, Orissa, Punjab, Rajasthan and Sikkim fell in Group III
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whereas Haryana, Himachal Pradesh, Jammu & Kashmir,
Karnataka, Kerala and Madhya Pradesh fell in Group II - The
applicant was allocated to the State of Himachal Pradesh and there
was a consent duly given by the State of Himachal Pradesh for her
allocation to that State - Therefore, mandate of r.5(1) of the Cadre
Rules is satisfied when consultation was made with the State to which
allocation was made - Applicant claimed allocation to the State of
Kerala, i.e., her home cadre - There were 4 senior candidates in
the general category - She was on merit as a general category
candidate, having not availed any of the relaxed standards meant
for a candidate of OBC category - In terms of proviso to r.7(3) of
the Recruitment Rules and the proviso to clause 16(1) in the
notification inviting applications for CSE-2006, the candidates
including the applicant were put to notice, that SC/ST or OBC
candidates will be treated as General Category Candidates who
have not availed any concession or relaxation - Applicant was thus
rightly treated as General Category candidate - In terms of Clause
16(2) of the CSE-2006 notification, the candidates belonging to
the SC/ST or OBC recommended against unreserved vacancies may
be adjusted against reserved vacancies by the Government, if by
this process they get a service of higher choice in the order of their
preference - The applicant was already allocated IAS as there was
no question of change of service - Therefore, as a general category
candidate, there was no occasion for consultation with State of
Kerala as the applicant was not even eligible to be considered for
allocation to the said State in terms of the allocation order - The
reasoning given by the High Court that there was cadre deficiency,
therefore, the applicant was entitled to be allocated is bereft of any
merit - High Court exceeded its jurisdiction to order allocation of
Kerala Cadre to the applicant without examining the policy decision
of the Union to fill up only 89 vacancies - High Court again erred
in law that an OBC candidate, who has not availed relaxation or
concession, had to be treated as general category candidate -
Candidate-Merit No.26 was the first OBC candidate who had availed
concessions or relaxations as OBC and was allocated to
Maharashtra cadre, being the first State in Group I in the scheme
of grouping of States or cadres - Therefore, the applicant had no
claim appointment to the Maharashtra cadre - She had no right to
the Kerala cadre as well as the second post in the vacancies in the
State of Kerala was meant for an OBC outsider candidate - Since
UNION OF INDIA v. MS. A. SHAINAMOL, IAS
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Kerala was second last State in Group IV, the OBC candidate at
Serial No. 131 was allocated such cadre - Indian Administrative
Service (Cadre) Rules, 1954 - r.5(1).
Service Law: All India Service - CSE-2006 - Allocation of
home cadre, claimed by OBC candidate, coming on general merit
without resorting to the relaxed standard for the candidates
belonging to OBC - The notification inviting applications for CSE2006 was in terms of r.7 of the Recruitment Rules and also the
allocation circular - The proviso to clause 16(1) of the notification
contemplates that if an SC/ST or OBC candidate has not availed
any concessions or relaxations in the eligibility or selection criteria
at any stage of the examination, and if after taking into account the
general qualifying standards is found fit for recommendation by
the Commission, they shall not be recommended against the vacancies
reserved for SC/ST and OBC - It is sub-clause (2) of Clause 16 of
CSE-2006 which gives an option to SC/ST or OBC candidate
recommended against unreserved vacancies to be adjusted against
reserved vacancies, if by this process they get a service of higher
choice in order of their preference - Thus, an SC/ST or OBC
candidate selected against unreserved vacancy as a general merit
candidate cannot make a grievance in respect of allocation of cadre
but has a right to seek service as a reserved category candidate if
that improves the selection of service - In fact, all the candidates
including the applicant were put to notice as to how the cadre
allocation would be made - But still, the applicant chose to claim
home state though she was not eligible to be considered for such
state - She had taken chance in appearing in the selection process
but when she was unsuccessful in getting the home cadre, attempts
were made to get into the home cadre on wholly untenable grounds
- Indian Administrative Service (Recruitment) Rules, 1954 - r.7.
Indian Administrative Service (Recruitment) Rules, 1954: OBC
candidate, coming on general merit without resorting to the relaxed
standard for the candidates belonging to OBC - Entitlement to OBC
reserved seat in her State - Held: r.7(3) of the Recruitment Rules
contemplates that the candidate belonging to the SC/ST or OBC
found suitable by the Commission for appointment to the service
"shall be appointed against unreserved vacancies" in case they
qualify for appointment to the service based on their merit without
recourse to the benefit of reservation - Such provision in the rule is
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a consonance with the judgment of this Court in Indra Sawhney and
Ors. v. Union of India and Ors. - r.7(4) is to be read as a proviso to
r.7(3) of the Recruitment Rules which permits the appointment of
candidates of SC/ST or OBC against the vacancies reserved for
such candidates "with due regard to the maintenance of efficiency
of administration" - Therefore, if a SC/ST or OBC candidate who
has been found suitable for appointment against the unreserved
vacancies can be appointed against the vacancy reserved for SC/
ST or OBC, provided a conscious decision is taken with regard to
the maintenance of efficiency of administration - The applicant
though belonging to OBC has not availed any relaxations or
concessions admissible to OBC candidates - She was a general
merit candidate, thus not entitled to OBC reserved seat in her State
- She was allocated to Himachal Pradesh cadre as a general
category candidate falling in r.7(3) in view of her merit position as
a general category candidate.
Service Jurisprudence: Allotment of cadre is an incidence of
service - The applicant as a candidate for the All-India Service
with eyes wide open has opted to serve anywhere in the country -
Once an applicant gets selected to service, the scramble for the
home cadre starts - The procedure for allocation of cadre is a
mechanical process and admits no exception except in terms of r.7(4)
which is to be read as proviso to r.7(3) - The State has no discretion
of allocation of a cadre at its whims and fancies - Therefore, the
Tribunal or the High Court should have refrained from interfering
with the allocation of cadre on the argument of alleged violation of
the allocation circular - Indian Administrative Service (Recruitment)
Rules, 1954 - r.7(3) - Service law.
Allowing the appeals, the Court
HELD: 1. The Union had prescribed a procedure to be
followed in the allotment of cadre to the officers of All India
Services on 30.07.1984. All the cadres/joint cadres were divided
into four groups and the 24 States were arranged in alphabetical
order. Later, another procedure was circulated on 30/
31.05.198511. It is the said allocation circular which was in force
at the time of cadre allocation for the year 2007. Maharashtra,
Manipur-Tripura, Nagaland, Orissa, Punjab, Rajasthan and Sikkim
UNION OF INDIA v. MS. A. SHAINAMOL, IAS
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fell in Group III whereas Haryana, Himachal Pradesh, Jammu &
Kashmir, Karnataka, Kerala and Madhya Pradesh fell in Group
II. [Para 11][414-B-C]
2. It has come on record that as per a meeting held on
04.07.2002, the number of vacancies to be filled for IAS every
year from 2002 up to 2007 worked out to be 85. Such decision
was in terms of Rule 4 of the Cadre Rules. The review was
contemplated to be after five years as against three years
prevalent prior to notification dated 10.03.1995. It is not the case
of any party that the States had not participated in the meeting
held on 04.07.2002. It was also found that by the time this decision
was taken, the process of Civil Services Examination-2002 was
already initiated. Therefore, the Commission expressed its
inability to recruit 85 officers in the CSE-2002. Hence, it was
decided to recruit 70 officers in CSE-2002 and distribute the
remaining 15 vacancies over the next four years. Therefore, the
actual requirement of vacancies for CSE-2006 became 89 (85+4).
[Para 12][416-G-H; 417-A-B]
3. There was requisition for 108 posts by the States as
against the 89 posts available for allotment. Kerala had sought 7
to 14 officers as against 2 officers allocated to it. In the brief
notes circulated on behalf of the Union before this Court on
24.09.2018, it was mentioned that there were total 595 districts
in the country whereas Kerala had 14 districts at the time of
distribution of vacancies for CSE-2006. Therefore, the vacancies
in Kerala were determined as 14/595*89= 2.09 (rounded off to
2). In the additional affidavit filed by the Union on 31.10.2018, it
was also pointed out that strength of 89 was divided between the
cadres on the ratio of number of districts in each State.
[Para 13][417-B-D]
4. The applicant was allocated to the State of Himachal
Pradesh and there was a consent duly given by the State of
Himachal Pradesh for her allocation to that State. In fact, no
consultation was required to be carried out in respect of the
applicant with Kerala State. Therefore, mandate of Rule 5(1) of
the Cadre Rules is satisfied when consultation was made with
the State to which allocation was made. [Para 23][421-G-H;
422-A]
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5. The State of Kerala has not disputed the decision arrived
at in the meeting held on 04.07.2002, whereby the allocation of
89 vacancies to be filled up to the year 2007 was arrived at. Out
of 89 vacancies, two vacancies were allocated to the State of
Kerala, one to be filled up by an insider and other by an outsider
OBC. The fact that the Kerala Cadre is deficient in respect of
number of officers cannot be disputed by a successful candidate
as such candidate had no right to claim additional vacancies so
that the applicant can be assigned home state. The argument to
claim that the entire deficient cadre should be made by allocation
to one State in preference to other 23 States in the country is
preposterous. The balancing of claims of all the States is to be
carried by the Union and not by one State or by the Courts.
[Para 24][422-B-C]
Union of India and Ors. v. Rajiv Yadav, IAS and Ors.
(1994) 6 SCC 38 : [1994] 2 Suppl. SCR 30 - relied
on.
6. The number of vacancies allocated to each State was again
based on logical mechanism as the number of districts in the entire
country i.e., 595 divided by the number of districts in the State.
Thus, in this manner, the vacancies available for allocation to the
various States were arrived at. Accordingly, the two vacancies
were allocated to the State of Kerala and the allocation in other
States was in respect of number of districts available in each State.
[Para 25][422-D-E]
7. The applicant claimed allocation to the State of Kerala,
i.e., her home cadre. There were 4 senior candidates in the
general category. She was on merit as a general category
candidate, having not availed any of the relaxed standards meant
for a candidate of OBC category. In terms of proviso to Rule 7(3)
of the Recruitment Rules and the proviso to clause 16(1) in the
notification inviting applications for CSE-2006, the candidates
including the applicant were put to notice, that SC/ST or OBC
candidates will be treated as General Category Candidates who
have not availed any concession or relaxation. The applicant was
thus rightly treated as General Category candidate. In terms of
Clause 16(2) of the CSE-2006 notification, the candidates
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belonging to the SC/ST or OBC recommended against
unreserved vacancies may be adjusted against reserved vacancies
by the Government, if by this process they get a service of higher
choice in the order of their preference. The applicant was already
allocated IAS as there was no question of change of service.
Therefore, as a general category candidate, there was no occasion
for consultation with State of Kerala as the applicant was not even
eligible to be considered for allocation to the said State in terms
of the allocation order. The reasoning given by the High Court
that there was cadre deficiency, therefore, the applicant was
entitled to be allocated is strange and bereft of any merit.
[Paras 26 and 27][422-E-H; 423-A-B]
8. The consistent view of this Court has been that even if
the name of the candidate appears in the merit list, such candidate
has no right to claim appointment. [Para 28][423-B-C]
Shankarsan Dash v. Union of India (1991) 3 SCC 47 :
[1991] 2 SCR 567 - followed.
The State of Haryana v. Subhash Chander Marwaha
and Ors. (1974) 3 SCC 220 : [1974] 1 SCR 165 -
relied on.
9. The decision of the Union to fill only 89 vacancies in the
cadre of IAS cannot be permitted to be disputed. The High Court
had exceeded its jurisdiction to order allocation of Kerala Cadre
to the applicant without examining the policy decision of the Union
to fill up only 89 vacancies. The High Court again erred in law
that an OBC candidate, who has not availed relaxation or
concession, had to be treated as general category candidate.
[Para 30][424-C-D]
10. Rule 7(3) of the Recruitment Rules contemplates that
the candidate belonging to the SC/ST or OBC found suitable by
the Commission for appointment to the service "shall be appointed
against unreserved vacancies" in case they qualify for appointment
to the service based on their merit without recourse to the benefit
of reservation. Such provision in the rule is a consonance with
the judgment of this Court in Indra Sawhney and Ors. v. Union of
India and Ors. [Para 31][424-E-F]
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Indra Sawhney and Ors. v. Union of India and Ors.
(1992) Supp. 3 SCC 217 : [1992] 2 Suppl. SCR 454 -
relied on.
11. Rule 7(4) is to be read as a proviso to Rule 7(3) of the
Recruitment Rules which permits the appointment of candidates
of SC/ST or OBC against the vacancies reserved for such
candidates "with due regard to the maintenance of efficiency of
administration". Therefore, if a SC/ST or OBC candidate who
has been found suitable for appointment against the unreserved
vacancies can be appointed against the vacancy reserved for
SC/ST or OBC, provided a conscious decision is taken with regard
to the maintenance of efficiency of administration. [Para 32]
[424-G-H; 425-A-B]
12. The applicant though belonging to OBC has not availed
any relaxations or concessions admissible to OBC candidates.
She was a general merit candidate, thus not entitled to
OBC reserved seat in her State. She was allocated to Himachal
Pradesh cadre as a general category candidate falling in Rule
7(3) in view of her merit position as a general category candidate.
[Para 33][425-B-C]
13. Regulation 7 of the Competitive Examination
Regulations framed under the Recruitment Rules does not make
mention of OBC candidate in the list of successful candidates
published under Rule 7 but such regulation has to be read in
terms of Rule 7 of the Recruitment Rules as such regulations
have been framed in exercise of the powers conferred under Rule
7 of the Recruitment Rules. It may be a situation of casus omissus
but since such regulation is not in tune with Rule 7 of the
Recruitment Rules, it has to give way to the statutory rules framed.
The regulations cannot be in conflict with the statutory rules.
Therefore, the non-inclusion of OBC in Regulation 7 is
inconsequential for the purposes of the present appeals as the
case of the applicant falls within Rule 7 of the Recruitment Rules.
[Para 34][425-C-E]
14. Candidate-Merit No.26 was the first OBC candidate
who had availed concessions or relaxations as OBC and was
allocated to Maharashtra cadre, being the first State in Group I
in the scheme of grouping of States or cadres. Therefore, the
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applicant had no claim appointment to the Maharashtra cadre.
She had no right to the Kerala cadre as well as the second post in
the vacancies in the State of Kerala was meant for an OBC outsider
candidate. Since Kerala was second last State in Group IV, the
OBC candidate at Serial No. 131 was allocated such cadre.
[Para 35][425-E-G]
Satya Prakash v. Union of India 2002 SCC On Line
Del 1000 : (2002) 99 DLT 749 (DB) - referred to.
15. The notification dated 3.12.2005 inviting applications
for CSE-2006 was in terms of Rule 7 of the Recruitment Rules
and also the allocation circular. The proviso to clause 16(1) of
the notification contemplates that if an SC/ST or OBC candidate
has not availed any concessions or relaxations in the eligibility
or selection criteria at any stage of the examination, and if after
taking into account the general qualifying standards is found fit
for recommendation by the Commission, they shall not be
recommended against the vacancies reserved for SC/ST and
OBC. [Para 38][427-D-E]
16. It is sub-clause (2) of Clause 16 of CSE-2006 which
gives an option to SC/ST or OBC candidate recommended against
unreserved vacancies to be adjusted against reserved vacancies,
if by this process they get a service of higher choice in order of
their preference. Thus, an SC/ST or OBC candidate selected
against unreserved vacancy as a general merit candidate cannot
make a grievance in respect of allocation of cadre but has a right
to seek service as a reserved category candidate if that improves
the selection of service. In fact, all the candidates including the
applicant were put to notice as to how the cadre allocation would
be made. But still, the applicant chose to claim home state though
she was not eligible to be considered for such state. She had
taken chance in appearing in the selection process but when she
was unsuccessful in getting the home cadre, attempts were made
to get into the home cadre on wholly untenable grounds.
[Para 39][427-F-H; 428-A]
17. In the light of Rajiv Yadav, the allocation of cadre is not
a matter of right. It was held that a selected candidate has a right
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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. The applicant as a
candidate for the All-India Service with eyes wide open has opted
to serve anywhere in the country. Once an applicant gets selected
to service, the scramble for the home cadre starts. The procedure
for allocation of cadre is a mechanical process and admits no
exception except in terms of Rule 7(4) which is to be read as
proviso to Rule 7(3). The State has no discretion of allocation of
a cadre at its whims and fancies. Therefore, the Tribunal or the
High Court should have refrained from interfering with the
allocation of cadre on the argument of alleged violation of the
allocation circular. [Para 40][428-B-D]
18. The observation of the High Court that there was a
lack of consultation with the State of Kerala is not acceptable.
Such consultation was not required to be carried out. The finding
of the High Court that the determination of total vacancies to be
89 was affected without any regard to cadre gap and on the ground
that the requisition by the State Government was ignored as the
rules and regulations warranted a mandatory consultation with
the State of Kerala. Such conclusions are not supported by the
documents on record including the additional affidavit filed by
the Union. The findings of the High Court that the action of the
Union was arbitrary as the allocation to certain States was more
than the cadre gap is again not sustainable as the 89 vacancies
were allocated to the States on the basis of the norms as
disclosed in the brief notes submitted before this Court.
[Para 41][428-D-F]
19. The judgment of the Kerala High Court in Jyothilal again
proceeds on the assumption that consultation was required to be
carried out with the State of Kerala though the candidate was
allocated to the State of Orissa. The judgment proceeds on basic
fallacy that consultation has to be with the State to whom the
officer is to be allocated, not with the State with whom the officers
claim allocation. [Para 42][428-G]
20. In terms of Rule 6 of the Central Administrative
Tribunal (Procedure) Rules, 1987, an application before the
Central Administrative Tribunal is required to be filed where the
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applicant is posted for the time being or the cause of action wholly
or in part has arisen. The applicant in her Original Application
has not laid any foundation as to how the Ernakulam Bench of the
Central Administrative Tribunal will have the jurisdiction to
entertain an Original Application filed by her. It appears that the
applicant had chosen the Ernakulam Bench for the reason that
she was permanent resident of Kerala State. The applicant was
not posted in the State of Kerala on the date of filing of the
application. The applicant has not explained how the cause of
action either wholly or partly had arisen within the jurisdiction of
the Tribunal at Kerala. [Para 43][428-H; 429-A-B]
Oil and Natural Gas Commission v. Utpal Kumar Basu
& Ors. (1994) 4 SCC 711 : [1994] 1 Suppl. SCR 252;
Alchemist Ltd. v. State Bank of Sikkim (2007) 11 SCC
335 : [2007] 4 SCR 46; Nakul Deo Singh v. Deputy
Commandant 1999 SCC OnLine Ker 366 - referred
to.
21. The Union of India had not raised objection about the
entertainment of an Original Application filed by the applicant
before the Ernakulam Bench of the Central Administrative
Tribunal. The applicant filed an application before the Ernakulam
Bench for the reason that she was permanent resident in the
State or may be for the reason, the order of allocation was received
by her in the State of Kerala. Both of these reasons do not give
rise to part of cause of action arising within the Jurisdiction of
the Ernakulam Bench of Tribunal. At this stage, the applicant is
not being non-suited on the ground that the Ernakulam Bench of
the Tribunal had no jurisdiction. [Para 47][431-F-G]
Union of India and Anr. v. Satya Prakash and Ors.
(2006) 4 SCC 550 : [2006] 3 SCR 789; Union of India
v. Jyothilal and Ors. (2003) 3 ILR (Kerala) 516 -
referred to.
Case Law Reference
[1974] 1 SCR 165
relied on
Para 17
[1991] 2 SCR 567
followed
Para 17
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407
[1994] 2 Suppl. SCR 30
relied on
Para 18
[2006] 3 SCR 789
referred to
Para 19
[1992] 2 Suppl. SCR 454
relied on
Para 31
[1994] 1 Suppl. SCR 252
referred to
Para 44
[2007] 4 SCR 46
referred to
Para 45
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.1148011481 of 2021.
From the Judgment and Order dated 28.02.2017 of the High Court
of Kerala at Ernakulam in W.P. (C) No.30460 of 2009 and W.P. (C)
No.9568 of 2010-Z.
K. M. Nataraj, ASG, Col. R. Balasubramaniam, Sr. Adv., R. Bala,
Mukul Singh, P. S. Sudheer, Raghvendra Srivastava, Arvind Kumar
Sharma, Advs. for the Appellants.
Haris Beeran, Mushtaq Salim, Usman Ghani Khan, Anand B.
Menon, Ms. Pallavi Pratap, G. Prakash, Ms. Priyanka Prakash, Ms.
Beena Prakash, Advs. for the Respondents.
The Judgment of the Court was delivered by
HEMANT GUPTA, J.
1. The present appeals, at the instance of Union of India1, are
directed against an order passed by the High Court of Kerala at Ernakulam
on 28.02.2017 whereby the appellant was directed to allocate the
respondent2 herein to the Kerala cadre of the All-India Service.
2. The applicant is a candidate seeking appointment to the AllIndia Services in pursuance of the Civil Services Examination-20063.
The applicant was successful as she found her name at Serial No. 20 of
the candidates selected by the Union Public Service Commission4. She
belongs to Muslim community and also to the Other Backward Class5.
She was allotted Himachal Pradesh cadre after the Union sought the
consent of Himachal Pradesh government on 13.11.2007, which was
duly received on 17.12.2007.
1 For short, the 'Union'
2 For short, the 'Applicant'
3 For short, the 'CSE-2006'
4 For short, the 'Commission'
5 For short, the 'OBC'
UNION OF INDIA v. MS. A. SHAINAMOL, IAS
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3. It is thereafter that the applicant filed an Original Application
under Section 19 of the Administrative Tribunals Act, 1985 before the
Ernakulam Bench of the Central Administrative Tribunal6. The Tribunal
directed the Union to allot and accommodate the applicant against the
outsider OBC vacancy in the Maharashtra cadre by virtue of her merit
over the candidate already identified and allotted the Maharashtra cadre.
The Union and the applicant aggrieved against the said order filed writ
petitions before the High Court of Kerela at Ernakulam. The writ petition
of the Union challenging the direction of the Tribunal to accommodate
the applicant in the Maharashtra cadre was allowed. Also, even the
original application filed by the applicant for declaring and directing that
the applicant is eligible to be allotted the Kerala cadre was allowed.
4. The facts are not in dispute. The applicant, though an OBC
candidate, came on general merit without resorting to the relaxed standard
for the candidates belonging to OBC. The applicant was one of the
candidates belonging to Kerala and that the four other general category
candidates were higher in merit than her. The placement of the applicant
is as under:
6 For short, the 'Tribunal'
5. In the year in question, as per the policy, there was one post
meant for Insider Unreserved candidate against which Prasanth N (Merit
No. 4) from Kerala was allocated Kerala cadre. The second vacancy
for OBC Outsider was allotted to Patil Ajit Bhagwatrao (Merit No. 131).
The grievance of the applicant was that she had a better merit than Shri
Sachindra Pratap Singh (Merit No. 26) who was allocated the
Maharashtra cadre as an OBC candidate. The argument of the applicant
was that she was higher in merit as an OBC candidate, therefore, she
should have been allocated the Maharashtra cadre. Such argument was
accepted by the Tribunal.
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6. The High Court, in the writ petitions against the order of the
Tribunal, inter alia held that the Kerala government had submitted
requisition for a minimum of 7 candidates. Even as per the Union, the
cadre was of 124 direct recruits and the available officers were 119,
therefore, there was a cadre deficiency of 5 officers. It was held that 5
admitted deficit vacancies were required to be filled up by following the
outsider-insider ratio in the given cycle of 30-point roster, then there
would be an insider vacancy, to be given either to the Scheduled Castes
or Scheduled Tribes7 or the OBC. Since there was no SC/ST candidate,
it had to be filled up by insider OBC, i.e., the applicant. It was also found
that Rule 5(1) of the Indian Administrative Service (Cadre) Rules, 19548
contemplates consultation with the State Government in respect of matter
of allocation of cadre. Since there was no consultation with the
government of Kerala, the Union is in breach of the mandate of Rule
5(1).
7. We find that the High Court has completely misread the statutory
rules and the policy of allocation of cadre which would be discussed
hereinafter.
8. The relevant rules, regulations and the policy instructions are
required to be extracted before we proceed to discuss the respective
contentions of the parties.
"The Indian Administrative Service (Cadre) Rules, 1954
In exercise of the powers conferred by sub-section 1 of Section 3
of the All India Services Act, 1951 (LXI of 1951), the Central
Government, after consultation with the Governments of the States
concerned, hereby makes the following rules namely:
xxx
xxx
xxx
2. Definitions: In these rules, unless the context otherwise
requires-
(a)
'Cadre officer' means a member of the Indian
Administrative Service;
(b)
'Cadre post' means any of the post specified under item 1
of each cadre in schedule to the Indian Administrative
Service (Fixation of Cadre Strength) Regulations, 1955.
xxx
xxx
xxx
7 For short, the 'SC/ST'
8 For short, the 'Cadre Rules
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5. Allocation of members to various cadres - (1) The
allocation of cadre officers to the various cadres shall be made by
the Central Government in consultation with the State Government
or the State Government concerned."
9. The relevant Indian Administrative Service (Recruitment) Rules,
19549 and The Indian Administration Service (Appointment by
Competitive Examination) Regulations, 195510 read as under:
"The Indian Administrative Service (Recruitment) Rules,
1954.
In exercise of the powers conferred by sub-section (1) of section
3 of the All-India Services Act, 1951 (LXI of 1951), the Central
Government after consultation with the Government of the States
concerned, hereby makes the following rules, namely:-
xxx xxx xxx
7. Recruitment by competitive examination.
7(1) A competitive examination for recruitment to the Service
shall be held at such intervals as the Central Government may, in
consultation with the Commission, from time to time, determine.
7(2) The examination shall be conducted by the Commission in
accordance with such regulations as the Central Government may
from time to time make in consultation with the Commission and
State Government.
7(3) Appointment to the Service shall be subject to orders regarding
special representation in the Service for Scheduled Castes
Scheduled Tribes [and Other Backward Castes] issued by the
Central Government from time to time in consultation with the
State Governments.
Provided that the candidates belonging to the Scheduled
Castes or Scheduled Tribes [or the other Backward Classes]
and declared by the Commission to be suitable for appointment
to the Service shall be appointed against unreserved vacancies
in case they qualify for appointment to the Service based on
their merit without recourse to the benefit of reservation.
(Emphasis Supplied)
'9 For short, the 'Recruitment Rules'
10 For short, the 'Competitive Examination Regulations'
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7(4) Candidates belonging to the Scheduled Castes or the
Scheduled Tribes or Other Backward Classes declared by the
Commission to be suitable for appointment to the Service with
due regard to the maintenance of efficiency of administration may
be appointed to the vacancies reserved for the candidates of the
Scheduled Castes or the Scheduled Tribes or Other Backward
Classes, as the case may be, under sub-rule (3).
Explanatory Note:- The Provisions for reservation in respect of
the Other Backward Classes for recruitment to the Service was
commenced from the year 1994 onwards and hence it is proposed
to give retrospective effect to the provisions of sub-rule (3) of
Rule 7 from the 1st day of January 1994. It is certified that by
giving retrospective effect to the provisions of the sub-rule (3) of
Rule 7, nobody is being adversely effected."
"The Indian Administrative Service (Appointment by
Competitive Examination) Regulations, 1955
In pursuance of Rule 7 of the Indian Administrative Service
(Recruitment) Rules, 1954, the Central Government, in consultation
with the State Governments and the Union Public Service
Commission, hereby makes the following regulations, namely:-
xxx
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xxx
7. List of successful candidates:
(1)
Subject to the provision of sub-regulation (2) the commission
shall forward to the Central Government a list arranged in
order of merit of the candidates who have qualified by such
standards as the Commission may determine.
(2)
The candidates, belonging to any of the Scheduled Castes
or the Scheduled Tribes may, to the extent of the number of
vacancies reserved for the Scheduled Castes and the
Scheduled Tribes, be recommended by the Commission by
a relaxed standard, subject to the fitness of these candidates
for selection to the Service.
Provided that the candidates, belonging to the Scheduled
Castes and the Scheduled Tribes, who have been
recommended by the Commission without resorting to the
relaxed standard referred to in this sub-regulation, shall not
be adjusted against the vacancies reserved for the Scheduled
Castes and the Scheduled Tribes."
UNION OF INDIA v. MS. A. SHAINAMOL, IAS
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10. The notification for conducting CSE-2006 was published in
the Government of India Gazette on 03.12.2005. The relevant clauses
pertaining to allocation of cadre as provided by the notification read
thus:
"NOTIFICATON
New Delhi, the 3rd December, 2005
RULES
No. 13018/6/2005-AIS(I).- The rules for a competitive
examination-Civil Services Examination to be held by the Union
Public Service Cofmmission in 2006 for the purpose of filling
vacancies in the following services/posts are, with the concurrence
of the Ministries concerned and the Comptroller and Auditor
General of India in respect of the Indian Audit and Accounts
Service, published for general information."
xxx
xxx
xxx
16 (1) After interview, the candidates will be arranged by the
Commission in the order of merit as disclosed by the aggregate
marks finally awarded to each candidate in the Main Examination.
Thereafter, the Commission shall, for the purpose of recommending
candidates against unreserved vacancies, fix a qualifying mark
(hereinafter referred to as general qualifying standard) with
reference to the number of unreserved vacancies to be filled up
on the basis of the Main Examination. For the purpose of
recommending reserved category candidates belonging to the
Scheduled Castes, Scheduled Tribes and Other Backward Classes
against reserved vacancies, the Commission may relax the general
qualifying standard with reference to number of reserved
vacancies to be filled up in each of these categories on the basis
of the Main Examination:
Provided that the candidates belonging to the Scheduled
Castes, Scheduled Tribes and the Other Backward Classes
who have not availed themselves of any of the concessions
or relaxations in the eligibility or the selection criteria, at
any stage of the examination and who after taking into
account the general qualifying standards are found fit for
recommendation by the Commission shall not be recommended
against the vacancies reserved for Scheduled Castes,
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Scheduled Tribes and the Other Backward Classes. (Emphasis
Supplied)
(2) While making service allocation, the candidates belonging to
the Scheduled Castes, the Scheduled Tribes or Other Backward
Classes recommended against unreserved vacancies may be
adjusted against reserved vacancies by the Govt. If by this process
they get a service of higher choice in the order of their
preference. (Emphasis Supplied)
(3) The Commission may further lower the qualifying standards
to take care of any shortfall of candidates for appointment against
unreserved vacancies and any surplus of candidates against
reserved vacancies arising out of the provisions of this rule, the
Commission may make the recommendations in the manner
prescribed in sub-rules (4) and (5).
(4) While recommending the candidates, the Commission shall, in
the first instance, take into account the total number of vacancies
in all categories. This total number of recommended candidates
shall be reduced by the number of candidates belonging to the
Scheduled Castes, the Scheduled Tribes and Other Backward
Classes who acquire the merit at or above the fixed general
qualifying standard without availing themselves of any concession
or relaxation in the eligibility or selection criteria in terms of the
proviso to sub-rule (1). Along with this list of recommended
candidates, the Commission shall also declare a consolidated
reserve list of candidates which will include candidates from
general and reserved categories ranking in order of merit below
the last recommended candidate under each category. The number
of candidates in each of these categories will be equal to the
number of reserved category candidates who were included in
the first list without availing of any relaxation or concession in
eligibility or selection criteria as per proviso to sub-rule (1). Amongst
the reserved categories, the number of candidates from each of
the Scheduled Caste, the Scheduled Tribe and Other Backward
Class categories in the reserve list will be equal to the respective
number of vacancies reduced initially in each category.
(5) The candidates recommended in terms of the provisions of
sub-rule (4), shall be allocated by the Government to the Services
and where certain vacancies still remain to be filled up, the
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Government may forward a requisition to the Commission requiring
it to recommend, in order of merit, from the reserve list, the same
number of candidates as requisitioned for the purpose of filling up
the unfilled vacancies in each category."
11.