Full Text
JUDGMENT
UOI & ORS. ..... Petitioners Represented by: Mr.Rakesh Tiku, Sr.Advocate with
Mr.Prakash Gautam and Mr.Vivek Ojha, Advocates.
R-1.
Mr.Arjun Pant, Advocate for R-4.
Mr.Anil Mittal, Advocate with Mr.Anuj Kumar Ranjan, Advocate for R-5.
HON'BLE MR. JUSTICE V.KAMESWAR RAO PRADEEP NANDRAJOG, J.
1. The above captioned writ petition challenges the order dated January 03, 2008 passed by the Central Administrative Tribunal allowing OA No.1920/2007 by quashing the order dated June 04, 2007 issued by the Director, SVP, National Police Academy to the extent it concerned the respondent and directed the Ministry of Home Affairs (MHA) to consider the allocation of cadre to the respondent in accordance with the principles laid down in the letter dated May 31, 1985 and to pass a detailed speaking order regarding the same. 2013:DHC:5526-DB
2. Before delving into the factual matrix, we note the policy pertaining to allocation of state cadres to the candidates who successfully clear the Civil Services Examination (CSE). We highlight that we would be concerned with the situation existing prior to April 10, 2008 for the reason on April 10, 2008 a new Cadre Allocation Policy has come into force and in the writ petition we are concerned with the cadre allocation pertaining to CSE-2005.
3. From the year 1966 till the year 1977, a roster system was used to allocate State cadre to those who cleared Civil Services Examination and were allocated a Group-A or a Group-B service. The same was changed in the year 1978 with the introduction of the Limited Zonal Preferences system. Since certain deficiencies were noted in the working of the Limited Zonal Preferences system, in the year 1985 the previous roster system was re-adopted with certain modifications. In said regard, on May 31, 1985, a letter was sent by Sh.K.Ramanujam, Secretary, Ministry of Personnel and Training to Sh.T.N.Seshan, Secretary, Department of Forest and Wildlife detailing the new procedure adopted. It is the common case of the parties that the principles of cadre allocation stand enunciated in the said letter dated May 31, 1985 and thus we note the same. The same reads as under:- “ GOVERNMENT OF INDIA MINISTRY OF PERSONNEL & TRAINING ADMINISTRATIVE REFORMS AND PUBLIC GRIEVANCES AND PENSIONS.
SECRETARY D.O.No.13013/5/84-AIS(I)Dated 30/31 May, 1985 Dear Shri Seshan, As you are aware, the allocation of the direct recruits to the All India Services including the Indian Forest Service is being made in accordance with the „Limited Zonal Preferences System‟ from 1978 examination and onwards. In this system all the cadres/joint cadres were divided into zones and the candidates were given the opportunity to indicate their preferences one-wise and also for two cadres in each zone. The allocation was being made keeping in view the rank and preferences of the candidates subject to allocation of vacancies in each cadre between „insiders‟ and „outsiders‟.
2. Our experience has shown that the limited zonal preferences system of allocation suffers from a number of deficiencies. Under this system there is only very limited movement of candidates from one part of the country to another across several States and even this limited interregional movement of candidates takes place only in respect of a few low ranking candidates. Another drawback of the system is that „outsiders‟ getting allocated to a State are mostly from a neighbouring State.
3. Keeping in view the deficiency that is noticed in the working of the limited zonal preferences system it has been decided with the approval of the Prime Minister that from 1985 batch onwards (1984 examination candidates) we should revert back to the roster system which was the system of allocation from 1966 to 1977 examination with certain modifications. The broad principles of allocation on the basis of roster system would be as follows:-
1. The vacancies in every cadre will be earmarked for „outsiders‟ and „insiders‟ in the ratio of 2:1 in order to avoid problems relating to fractions and to ensure that this ratio is maintained, over a period of time, if not during allocation, the break-up of vacancies in a cadre between „outsiders‟ and „insiders‟ will be calculated following the cycle of „outsider‟, „insider‟, „outsider‟.
2. The vacancies for Scheduled Castes and Scheduled Tribes will be reserved in the various cadres according to the prescribed percentage. For purpose of this reservation, scheduled castes and scheduled tribes will be grouped together and the percentages will be added. Distribution of reserved vacancies in each cadre between „outsiders‟ and „insiders‟ will be done in the ratio of 2:1. This ratio will be operationalised by following a cycle „outsider‟, „insider‟, „outsider‟ as is done in the case of general candidates.
3. Allocation of „insiders‟, both men and women, will be strictly according to their ranks, subject to their willingness to be allocated to their home States.
4. Allocation of „outsiders‟, whether they are general candidates or reserved candidates, whether they are men or women, will be according to the roster system after placing „insiders‟ at their proper places on the chart as explained below:
(i) All the State cadres/joint Cadres should be arranged in alphabetical order and divided into four groups which, on the basis of the average over a period of time, are taking roughly equal number of candidates each. On the basis of average intake during the last 4 years, the groups could be as follows: Group I Andhra Pradesh, Assam, Meghalaya, Bihar and Gujarat. Group II Haryana, Himachal Pradesh, Jammu & Kashmir, Karnataka, Kerala and Madhya Pradesh. Group III Maharashtra, Manipur- Tripura, Nagaland, Orissa, Punjab, Rajasthan and Sikkim Group IV Tamil Nadu, Union Territory, Uttar Pradesh and West Bengal.
(ii) Since the number of cadres/Joint Cadres is 21, the cycles will be 1-21, 22-42, 43-63 and so on.
(iii) The „insider‟ quota should then be distributed among the States and assigned to different cycles of allotment. For example, if a State gets 4 „insider‟ candidates, they should go to the share of the State in their respective cycles and if there are 2, „insider‟ candidates from the same cycle, they should be treated as going to the State in two successive cycles and so on.
(iv) The „outsider‟ candidates should be arranged in order of merit and allotted to the State cadres in cycles as described in (v) below.
(v) In the first cycle, State cadre/joint cadres which have not received „insider‟ candidates should be given one candidate each in order of merit of „outsider‟ candidates. The process should be repeated in successive cycles, each successive cycle beginning with the next successive group of States, e.g. the second cycle should begin from Group II States, the third cycle with Group III states and the fourth cycle with Group IV states and the fifth cycle again with Group-I States. Occasionally it may happen that a candidate‟s turn may come in such a way that he may get allocated to his own home State. When that happens, the candidate next below him should be exchanged with him.
(vi) For the succeeding year, the State cadres should be arranged again in alphabetical order but with Group I of the previous year at the bottom, i.e, the arrangement will begin with Group II on top. In the third year, Group III will come on top and so on.
(vii) In the case of candidates belonging to the reserved category, such of those candidates, whose position in the merit list is such that they could have been appointed to the service even in the absence of any reservation, will be treated on part with general candidates for purposes of allotment though they will be counted against reserved vacancies. In respect of other candidates belonging to the reserved category a procedure similar to the one adopted for general candidates would be adopted. In other words, a separate chart should be prepared with similar grouping of States and similar operational details should be followed. If there is a shortfall in general „insiders‟ quota it could, however, be made up by „insider‟ reserved candidates.
5. Since the Prime Minister has already approved the roster system of allocation as indicated above, I would request you to ensure that this system of allocation is followed while allocating the candidates appointed to the Indian Forest Service on the result of the Indian Forest Service Examination, 1984 and onwards. With regards Yours sincerely, Sd/- (K.RAMANUJAM) Shri T.N.Seshan, Secretary Department of Forests & Wild Life, New Delhi”
4. The policy aforenoted contained in the letter dated May 31, 1985 was held capable of being applied for cadre allocation by the Supreme Court in the decision reported as (1994) 6 SCC 38 Union of India v. Rajiv Yadav IAS. The Supreme Court held:-
5. Before noting in detail the respondent’s challenge to his cadre allocation we briefly note the process of cadre allocation as in vogue.
6. The States and the Union Territories were divided into 21 cadres/joint cadres with each State constituting a separate cadre except for the three joint cadres; namely: Assam-Meghalaya, Manipur-Tripura and AGMUT (Arunachal Pradesh, Goa, Mizoram and Union Territories). We highlight that when the policy was applied in the year 2006 the cadres became 24.
7. The first stage in the cadre allocation is to divide the vacancies arising in each cadre amongst general category candidates and SC/ST candidates on the basis of the prescribed percentages for reservation. Thereafter to classify the candidates who had successfully cleared the Civil Services Examination into two groups/categories: (i) insider; and
(ii) outsider. The insider being those candidates who opt for their home
State to be allotted to them. Of logic would be that outsider would be those who could not be posted in their home State.
8. Thereafter the vacancies for each category i.e. General and SC/ST category are to be divided between the ‘insider’ and ‘outsider’, in the ratio of 2:1 and in order to ensure that this ratio is maintained, the first vacancy goes to an ‘outsider’; the second vacancy goes to an ‘insider’ and the third once again goes to an ‘outsider’. This cycle is repeated.
9. Thereafter a list of candidates allotted to the service is prepared in order of merit, indicating their home State and their willingness to be allotted their home State and each candidate is assigned a
┌─────────────────────────────────────────────────────────────────────────────┐ │ serial no.20 is another amomalous case requiring explanation │ │ similar to that given in para 17 above. It is pertinent here to │ │ note that once again the respondents have ignored rule no.7 as │ │ a result of which the said candidate who should have been │ │ allotted the West Bengal cadre (since the next available │ │ outsider vacancy after Uttarakhand would have been in West │ │ Bengal cadre) has been allocated to the Maharashtra cadre. │ └─────────────────────────────────────────────────────────────────────────────┘
30. The Tribunal has subscribed to the interpretation adopted by the DoPT and proceeded to pass the order dated January 03, 2008 bearing the same in mind. When dealing with how the cadre allocation had to be carried out, the Tribunal, in paragraph 7, of the order observed as under:
31. On the other hand, the Ministry of Home Affairs has relied on paragraph 3 of the letter which states that allocation of insiders, both men and women will be strictly according to their ranks, subject to their willingness to be allocated to their home State.
32. Now, the problem is writ large. Whereas the Ministry of Home Affairs as also DoPT have interpreted the policy requiring candidates in order of merit to be seen in the cycle 1-24, 25-48, 49-72, 73-96, 97-120 and thus to said extent both are ad-idem, the point of diversion stems from the fact that the positioning of merit has determined the slotting in the applicable cycles when MHA has made the allocation vis-a-vis DoPT. To wit, since we have given the example with respect to State of Bihar, since the first candidate in order of merit in the unreserved category who had opted for State of Bihar was at serial No.36, whereas as per MHA he would have been placed in the first cycle, DoPT has placed him the second cycle. Meaning thereby had MHA plotted the allocation the person at serial No.36 would have been plotted against the first adjoining cell i.e. the place occupied by the candidate at serial No.7.
33. The two interpretations stem from the malleability of the general principles of cadre allocation, which are enunciated in the letter dated May 31, 1985 and the further fact that a policy which did not envisage at the relevant time reservation for OBC has been applied. Applying the same as per DoPT a candidate first available as an insider for a particular cadre would be allotted the State cadre even if his merit position is not at merit serial No.1 to 24 by requiring him to be placed at the first instance in the second cycle but MHA would place the candidate concerned notwithstanding he is not at merit serial No.1 to 24 in the first cycle.
34. Notwithstanding that we have explained as above with reference to the example of the State of Bihar pertaining to IAS allocation for the CSE-2007 because during argument in Court said allocation chart was used as an exemplar, to illustrate theoretically the difference between the methodology adopted by the Department of Personnel and Training (DoPT) and Ministry of Home Affairs (MHA) while implementing the policy letter dated May 31, 1985 we take another example.
35. If there are 50 candidates to be allotted State cadres and the first insider candidate for a particular cadre is available at serial No.47, as per merit position, the DoPT would place the concerned candidate in the second cycle of the Roster, since serial No.47 falls within the cycle of 25 to 48, the cycle of the Roster being 1 to 24, 25 to 48 and so on. The reason being there are 24 cadres. On the other hand, the MHA would place the concerned candidate in the first cycle itself, since he is the first insider available candidate for that cadre.
36. We are faced with a peculiar problem. The malleability of the language used in the policy letter dated May 31, 1985 leaves ample scope for subjectivity and two views of the same policy emerge. Thus, it cannot be said that one view is wrong. But, what about the argument that it would be a contradiction in terms to say that as per same policy it can be interpreted to mean that a same slot can be filled in the first cycle and also in the second cycle. The argument would be that whereas words and phrases are capable of having more than one meaning but the same have to be analogous and not in the opposite. We concede to the point that ordinarily it would seem irrational to accept a word or a phrase as having two meanings which are in the opposite. But what is seemingly ordinary may be missing a point. It is possible that the same word, phrase or a concept is capable of having two meanings in the opposite. A ready illustration would be the use of the word ‘crowd’, with reference to a bus and a discotheque: ‘What would be an irritating crowd in a bus would be an atmosphere in a discotheque’.
37. Humour apart, it is settled law that where a policy has been interpreted consistently for a long period of time and the interpretation does not violate any statute or the constitution, a Court would not upset an action taken pursuant to the policy if it is interpreted otherwise.
38. We highlight that the cadre allocation policy has since undergone a change in the year 2008 and the problem is not of a recurring kind. Strangely enough, till respondent raised the issue, nobody realized that DoPT and MHA, the two faces of the same kind were interpreting the policy in a different manner. Thus, respondent’s case is the solitary instance with no precedentiary value and thus there is no need to direct that henceforth which out of the two interpretations should be followed. But we would be failing not to highlight that the interpretation by MHA appears to be the better interpretation for the reason we see logic in the fact that the cycles i.e. 1 to 24, 25 to 48 and so on have to be operated not as a mechanist but with logic. This means that the candidates have not be slotted as per their merit ranking in the cycles but the cycles have to be operated phase wise requiring the State at serial No.1 to be looked at and identifying the first available candidate who had opted for the insider vacancy in the State and slotting the candidate in the first cycle against the insider vacancy. We highlight that it is the cycle which has to be operated and the list, as per merit, of the candidates is the reservoir from which the waters flow to operate the cycle.
39. We allow the writ petition and quash the impugned order dated January 03, 2008. OA No.1920/2007 filed by the respondent is dismissed but without any order as to costs. (PRADEEP NANDRAJOG) JUDGE (V.KAMESWAR RAO)