On October 22, the Supreme Court set aside a Kerala High Court order, which had asked the centre to grant Kerala cadre to IAS officer A Shainamol who had been allotted the Himachal Pradesh cadre. Shainamol is a candidate seeking appointment to the All India Services in pursuance of the Civil Services Examination, 2006.
She was successful and found her name at serial no. 20 of the candidates selected by the Union Public Service Commission. She belongs to the Muslim community and the Other Backward Class (OBC).
She was allotted Himachal Pradesh cadre after the centre sought the consent of Himachal Pradesh government on November 13, 2007, which was duly received on December 17, 2007.
Thereafter, Shainamol filed an application under Section 19 of the Administrative Tribunals Act, 1985, before the Ernakulam Bench of the Central Administrative Tribunal. The Tribunal directed the centre to allot and accommodate her against the outsider OBC vacancy in the Maharashtra cadre by virtue of her merit over the candidate already identified and allotted the same cadre. Aggrieved against the order, the centre and Shainamol filed petitions before the Kerala High Court.
The petition of the centre challenging the direction of the Tribunal to accommodate Shainamol in the Maharashtra cadre was allowed. Shainamol, though an OBC candidate, was selected on general merit and she did not seek the relaxed standards for candidates belonging to the OBC. She was one of the candidates belonging to Kerala and the four other general category candidates were higher in merit than her. However, Shainamol argued that she was higher in merit as an OBC candidate and therefore, she should have been allocated the Maharashtra cadre.
The Kerala High Court inter alia held that the Kerala government had submitted a requisition for a minimum of seven candidates. Even as per the centre, the cadre was of 124 direct recruits and available officers were 119, therefore, there was a cadre deficiency of five officers. The five deficit vacancies were required to be filled up by following the outsider-insider ratio in the given cycle of 30-point roster, which would leave an insider vacancy, to be given either to the Scheduled Castes (SC) or Scheduled Tribes (ST) or an OBC. Since there was no SC/ST candidate, it had to be filled up by an insider OBC, i.e. Shainamol.
The High Court also found that Rule 5(1) of the Indian Administrative Service (Cadre) Rules, 1954, contemplates consultation with the state government in respect of matters of allocation of cadre. Since there was no consultation with the government of Kerala, the centre was in breach of the mandate of Rule 5(1).
In the apex court, a bench of Justices Hemant Gupta and V Ramasubramanian observed that the Kerala High Court had completely misread the statutory rules and the policy of allocation of cadre. The centre had prescribed a procedure to be followed in the allotment of cadre to the officers of All India Services on July 30, 1984. All the cadres/joint cadres were divided into four groups and the 24 states were arranged in an alphabetical order. Later, another procedure was circulated on May 30-31, 1985. It is the said allocation circular which was in force at the time of cadre allocation for 2007.
The centre argued that in terms of Rule 7(3) of the Recruitment Rules, candidates belonging to SC/ST or OBC shall be appointed against unreserved vacancies in case they qualify for appointment to the service based on their merit and without recourse to the benefit of reservation. However, Rule 7(4) contemplates that the candidates belonging to SC/ST or OBC may be appointed to the vacancies reserved for the candidates of the SC/ST or OBC, as the case may be, under sub-rule (3) with due regard to the maintenance of efficiency of administration.
It was thus contended that in terms of Rule 7(3), if a SC/ST or OBC candidate is appointed without recourse to the benefit of relaxed standard, he/she shall be appointed against unreserved vacancies. However, Rule 7(4) is an enabling provision, as an exception to Rule 7(3), that a SC/ST or OBC candidate may be appointed to the vacancies reserved for SC/ST or OBC candidates with due regard to maintenance of efficiency of administration. Therefore, in terms of the Recruitment Rules, the applicant was assigned Himachal Pradesh cadre as a general category candidate and in terms of sub-clause (v) and (vi) of Clause 4 of the allocation circular.
The question to be examined was whether consultation in respect of allocation of cadre was required to be done with the state from which the candidate belongs or with the state to which the candidate is being allocated. The entire basis of claim of Shainamol was that there was no consultation with Kerala.
The top court observed that 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 Civil Services Examination 2006, the candidates, including Shainamol, 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. Shainamol was thus rightly treated as a general category candidate. In terms of Clause 16(2) of the Civil Services Examination 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. Shainamol was already allocated IAS and there was no question of change of service.
“Therefore, as a general category candidate, there was no occasion for consultation with the 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,”
-the top court observed.
The Supreme Court also pointed out that in Union of India and Ors vs Rajiv Yadav, IAS and Ors, a three-judge bench had said that allotment of cadre of choice or home state was not a matter of right. Allocation of cadre was an incidence of service.
To conclude, the top court noted that the centre had not raised any objection about the entertainment of an original application filed by Shainamol before the Ernakulam Bench of the Central Administrative Tribunal. Her application listed the reason that she was a permanent resident of Kerala. At this stage, Shainamol was considered non-suitable on the ground that the Ernakulam bench of the Tribunal had no jurisdiction, the Court said.
In Subhash Chander Marwaha, the top court held that the existence of vacancies did not give any legal right to a candidate to be selected for appointment. The apex court in Oil and Natural Gas Commission vs Utpal Kumar Basu & Ors examined filing of a writ petition before the Calcutta High Court for the reason that the writ petitioner would suffer loss at its registered office which is situated within the jurisdiction of the Calcutta High Court. It may be stated that broadly the language of Article 226 and Rule 6 of the Central Administrative Tribunal (Procedure) Rules, 1987 is similar.
The top court in Alchemist Ltd vs State Bank of Sikkim, while reviewing the entire case law to determine as to when the cause of action wholly or in part arose, held that even if a small fraction of the cause of action arises within the jurisdiction of the court, the court would have territorial jurisdiction to entertain the suit/petition.
In Nakul Deo Singh vs Deputy Commandant, filed before the Kerala High Court by a head constable working in the Central Industrial Security Force Unit at Bokaro Steel Plant, the disciplinary authority and the appellate authority were situated outside the territorial jurisdiction of the High Court. The applicant claimed that since the order of appellate authority was received within the jurisdiction of the Kerala High Court, it will have the jurisdiction to entertain the original petition.
Quite a legal merry-go-round which has now been added to by the Shainamol petition and its fallout.
—By Shivam Sharma, advocate, Lucknow bench of the Allahabad High Court and India Legal News Service