UNION OF INDIA AND ANR versus MS. A. SHAINAMOL, IAS AND ANR

[2021] 11 S.C.R.

UNION OF INDIA AND ANR

MS. A. SHAINAMOL, IAS AND ANR

(Civil Appeal Nos. 11480-81 of 2018)

BOCTOBER 22, 2021

[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]

Service Law: All India Service – Appellant was candidateseeking appointment to All India Service pursuant to Civil ServicesExamination-2006 – She was successful and her name appeared atCserial no.20 – Applicant, though an OBC candidate, came ongeneral merit without resorting to the relaxed standard for thecandidates belonging to OBC – She was allotted Himachal PradeshCadre after the consent of Himachal Pradesh Government –Applicant filed O.A. before CAT (Tribunal) – The grievance of theDapplicant was that she had better merit than candidate-Merit No.26 who was allocated the Maharashtra cadre as an OBC candidateand, therefore, she should have been allocated the Maharashtracadre – Tribunal directed the Union of India to allot andaccommodate the applicant against the outsider OBC vacancy inthe Maharashtra Cadre by virtue of her merit over the candidateEalready identified and allotted the Maharashtra Cadre – The Unionand the applicant aggrieved against the said order filed writpetitions before the High Court – High Court held that five admitteddeficit vacancies were required to be filled up by following theoutsider-insider ratio in the given cycle of 30-point roster, then thereFwould be an insider vacancy, to be given either to the SC/ST or theOBC – Since there was no SC/ST candidate, it had to be filled up byinsider OBC, i.e., the applicant – On appeal, held: High Court hascompletely misread the statutory rules and the policy of allocationof cadre – The Union had prescribed procedure to be followed inthe allotment of cadre to the officers of All India Services onG30.07.1984 – All the cadres/joint cadres were divided into fourgroups and the 24 States were arranged in alphabetical order –Later, another procedure was circulated on 30/31.05.1985 – It isthe said allocation circular which was in force at the time of cadreallocation for the year 2007 – Maharashtra, Manipur-Tripura,HNagaland, Orissa, Punjab, Rajasthan and Sikkim fell in Group IIIwhereas Haryana, Himachal Pradesh, Jammu & Kashmir,Karnataka, Kerala and Madhya Pradesh fell in Group II – Theapplicant was allocated to the State of Himachal Pradesh and therewas consent duly given by the State of Himachal Pradesh for herallocation to that State – Therefore, mandate of r.5(1) of the CadreRules is satisfied when consultation was made with the State to whichallocation was made – Applicant claimed allocation to the State ofKerala, i.e., her home cadre – There were 4 senior candidates inthe general category – She was on merit as general categorycandidate, having not availed any of the relaxed standards meantfor candidate of OBC category – In terms of proviso to r.7(3) ofthe Recruitment Rules and the proviso to clause 16(1) in thenotification inviting applications for CSE-2006, the candidatesincluding the applicant were put to notice, that SC/ST or OBCcandidates will be treated as General Category Candidates whohave not availed any concession or relaxation – Applicant was thusrightly treated as General Category candidate – In terms of Clause16(2) of the CSE-2006 notification, the candidates belonging tothe SC/ST or OBC recommended against unreserved vacancies maybe adjusted against reserved vacancies by the Government, if bythis process they get service of higher choice in the order of theirpreference – The applicant was already allocated IAS as there wasno question of change of service – Therefore, as general categorycandidate, there was no occasion for consultation with State ofKerala as the applicant was not even eligible to be considered forallocation to the said State in terms of the allocation order – Thereasoning given by the High Court that there was cadre deficiency,therefore, the applicant was entitled to be allocated is bereft of anymerit – High Court exceeded its jurisdiction to order allocation ofKerala Cadre to the applicant without examining the policy decisionof the Union to fill up only 89 vacancies – High Court again erredin law that an OBC candidate, who has not availed relaxation orconcession, had to be treated as general category candidate –Candidate-Merit No.26 was the first OBC candidate who had availedconcessions or relaxations as OBC and was allocated toMaharashtra cadre, being the first State in Group I in the schemeof grouping of States or cadres – Therefore, the applicant had noclaim appointment to the Maharashtra cadre – She had no right tothe Kerala cadre as well as the second post in the vacancies in theState of Kerala was meant for an OBC outsider candidate – Since

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EFGH

AKerala was second last State in Group IV, the OBC candidate atSerial No. 131 was allocated such cadre – Indian AdministrativeService (Cadre) Rules, 1954 – r.5(1).

Service Law: All India Service – CSE-2006 – Allocation ofhome cadre, claimed by OBC candidate, coming on general meritBwithout resorting to the relaxed standard for the candidatesbelonging to OBC – The notification inviting applications for CSE-2006 was in terms of r.7 of the Recruitment Rules and also theallocation circular – The proviso to clause 16(1) of the notificationcontemplates that if an SC/ST or OBC candidate has not availedany concessions or relaxations in the eligibility or selection criteriaCat any stage of the examination, and if after taking into account thegeneral qualifying standards is found fit for recommendation bythe Commission, they shall not be recommended against the vacanciesreserved for SC/ST and OBC – It is sub-clause (2) of Clause 16 ofCSE-2006 which gives an option to SC/ST or OBC candidateDrecommended against unreserved vacancies to be adjusted againstreserved vacancies, if by this process they get service of higherchoice in order of their preference – Thus, an SC/ST or OBCcandidate selected against unreserved vacancy as general meritcandidate cannot make grievance in respect of allocation of cadrebut has right to seek service as reserved category candidate ifEthat improves the selection of service – In fact, all the candidatesincluding the applicant were put to notice as to how the cadreallocation would be made – But still, the applicant chose to claimhome state though she was not eligible to be considered for suchstate – She had taken chance in appearing in the selection processFbut when she was unsuccessful in getting the home cadre, attemptswere 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: OBCcandidate, coming on general merit without resorting to the relaxedstandard for the candidates belonging to OBC – Entitlement to OBCGreserved seat in her State – Held: r.7(3) of the Recruitment Rulescontemplates that the candidate belonging to the SC/ST or OBCfound suitable by the Commission for appointment to the service“shall be appointed against unreserved vacancies” in case theyqualify for appointment to the service based on their merit withoutHrecourse to the benefit of reservation – Such provision in the rule is

consonance with the judgment of this Court in Indra Sawhney andOrs. v. Union of India and Ors. – r.7(4) is to be read as proviso tor.7(3) of the Recruitment Rules which permits the appointment ofcandidates of SC/ST or OBC against the vacancies reserved forsuch candidates “with due regard to the maintenance of efficiencyof administration” – Therefore, if SC/ST or OBC candidate whohas been found suitable for appointment against the unreservedvacancies can be appointed against the vacancy reserved for SC/ST or OBC, provided conscious decision is taken with regard tothe maintenance of efficiency of administration – The applicantthough belonging to OBC has not availed any relaxations orconcessions admissible to OBC candidates – She was generalmerit candidate, thus not entitled to OBC reserved seat in her State– She was allocated to Himachal Pradesh cadre as generalcategory candidate falling in r.7(3) in view of her merit position asa general category candidate.Service Jurisprudence: Allotment of cadre is an incidence ofservice – The applicant as candidate for the All-India Servicewith eyes wide open has opted to serve anywhere in the country –Once an applicant gets selected to service, the scramble for thehome cadre starts – The procedure for allocation of cadre is amechanical 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 discretionof allocation of cadre at its whims and fancies – Therefore, theTribunal or the High Court should have refrained from interferingwith the allocation of cadre on the argument of alleged violation ofthe allocation circular – Indian Administrative Service (Recruitment)Rules, 1954 – r.7(3) – Service law.

Allowing the appeals, the Court

HELD: 1. The Union had prescribed procedure to befollowed in the allotment of cadre to the officers of All IndiaServices on 30.07.1984. All the cadres/joint cadres were dividedinto four groups and the 24 States were arranged in alphabeticalorder. Later, another procedure was circulated on 30/31.05.198511. It is the said allocation circular which was in forceat the time of cadre allocation for the year 2007. Maharashtra,Manipur-Tripura, Nagaland, Orissa, Punjab, Rajasthan and Sikkim

ABC

Afell in Group III whereas Haryana, Himachal Pradesh, Jammu &Kashmir, Karnataka, Kerala and Madhya Pradesh fell in GroupII. [Para 11][414-B-C]

2. It has come on record that as per meeting held on04.07.2002, the number of vacancies to be filled for IAS everyByear from 2002 up to 2007 worked out to be 85. Such decisionwas in terms of Rule 4 of the Cadre Rules. The review wascontemplated to be after five years as against three yearsprevalent prior to notification dated 10.03.1995. It is not the caseof any party that the States had not participated in the meetingheld on 04.07.2002. It was also found that by the time this decisionCwas taken, the process of Civil Services Examination-2002 wasalready initiated. Therefore, the Commission expressed itsinability to recruit 85 officers in the CSE-2002. Hence, it wasdecided to recruit 70 officers in CSE-2002 and distribute theremaining 15 vacancies over the next four years. Therefore, theDactual 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 asagainst the 89 posts available for allotment. Kerala had sought 7to 14 officers as against 2 officers allocated to it. In the briefEnotes circulated on behalf of the Union before this Court on24.09.2018, it was mentioned that there were total 595 districtsin the country whereas Kerala had 14 districts at the time ofdistribution of vacancies for CSE-2006. Therefore, the vacanciesin Kerala were determined as 14/595*89= 2.09 (rounded off to2). In the additional affidavit filed by the Union on 31.10.2018, itFwas also pointed out that strength of 89 was divided between thecadres on the ratio of number of districts in each State.[Para 13][417-B-D]

4. The applicant was allocated to the State of HimachalPradesh and there was consent duly given by the State ofGHimachal Pradesh for her allocation to that State. In fact, noconsultation was required to be carried out in respect of theapplicant with Kerala State. Therefore, mandate of Rule 5(1) ofthe Cadre Rules is satisfied when consultation was made withthe State to which allocation was made. [Para 23][421-G-H;H422-A]

5. The State of Kerala has not disputed the decision arrivedat in the meeting held on 04.07.2002, whereby the allocation of89 vacancies to be filled up to the year 2007 was arrived at. Outof 89 vacancies, two vacancies were allocated to the State ofKerala, one to be filled up by an insider and other by an outsiderOBC. The fact that the Kerala Cadre is deficient in respect ofnumber of officers cannot be disputed by successful candidateas such candidate had no right to claim additional vacancies sothat the applicant can be assigned home state. The argument toclaim that the entire deficient cadre should be made by allocationto one State in preference to other 23 States in the country ispreposterous. The balancing of claims of all the States is to becarried 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 – reliedon.

6. The number of vacancies allocated to each State was againbased on logical mechanism as the number of districts in the entirecountry i.e., 595 divided by the number of districts in the State.Thus, in this manner, the vacancies available for allocation to thevarious States were arrived at. Accordingly, the two vacancieswere allocated to the State of Kerala and the allocation in otherStates 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 thegeneral category. She was on merit as general categorycandidate, having not availed any of the relaxed standards meantfor candidate of OBC category. In terms of proviso to Rule 7(3)of the Recruitment Rules and the proviso to clause 16(1) in thenotification inviting applications for CSE-2006, the candidatesincluding the applicant were put to notice, that SC/ST or OBCcandidates will be treated as General Category Candidates whohave not availed any concession or relaxation. The applicant wasthus rightly treated as General Category candidate. In terms ofClause 16(2) of the CSE-2006 notification, the candidates

Abelonging to the SC/ST or OBC recommended againstunreserved vacancies may be adjusted against reserved vacanciesby the Government, if by this process they get service of higherchoice in the order of their preference. The applicant was alreadyallocated IAS as there was no question of change of service.Therefore, as general category candidate, there was no occasionBfor consultation with State of Kerala as the applicant was not eveneligible to be considered for allocation to the said State in termsof the allocation order. The reasoning given by the High Courtthat there was cadre deficiency, therefore, the applicant wasentitled to be allocated is strange and bereft of any merit.C[Paras 26 and 27][422-E-H; 423-A-B]

8. The consistent view of this Court has been that even ifthe name of the candidate appears in the merit list, such candidatehas no right to claim appointment. [Para 28][423-B-C]

Shankarsan Dash v. Union of India (1991) 3 SCC 47 :D[1991] 2 SCR 567 – followed.

The State of Haryana v. Subhash Chander Marwahaand Ors. (1974) 3 SCC 220 : [1974] 1 SCR 165 –relied on.

E9. The decision of the Union to fill only 89 vacancies in thecadre of IAS cannot be permitted to be disputed. The High Courthad exceeded its jurisdiction to order allocation of Kerala Cadreto the applicant without examining the policy decision of the Unionto fill up only 89 vacancies. The High Court again erred in lawthat an OBC candidate, who has not availed relaxation orFconcession, had to be treated as general category candidate.[Para 30][424-C-D]

10. Rule 7(3) of the Recruitment Rules contemplates thatthe candidate belonging to the SC/ST or OBC found suitable bythe Commission for appointment to the service “shall be appointedGagainst unreserved vacancies” in case they qualify for appointmentto the service based on their merit without recourse to the benefitof reservation. Such provision in the rule is consonance withthe judgment of this Court in Indra Sawhney and Ors. v. Union ofIndia and Ors. [Para 31][424-E-F]

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 proviso to Rule 7(3) of theRecruitment Rules which permits the appointment of candidatesof SC/ST or OBC against the vacancies reserved for suchcandidates “with due regard to the maintenance of efficiency ofadministration”. Therefore, if SC/ST or OBC candidate whohas been found suitable for appointment against the unreservedvacancies can be appointed against the vacancy reserved forSC/ST or OBC, provided conscious decision is taken with regardto the maintenance of efficiency of administration. [Para 32][424-G-H; 425-A-B]

12. The applicant though belonging to OBC has not availedany relaxations or concessions admissible to OBC candidates.She was general merit candidate, thus not entitled toOBC reserved seat in her State. She was allocated to HimachalPradesh cadre as general category candidate falling in Rule7(3) in view of her merit position as general category candidate.[Para 33][425-B-C]

13. Regulation 7 of the Competitive ExaminationRegulations framed under the Recruitment Rules does not makemention of OBC candidate in the list of successful candidatespublished under Rule 7 but such regulation has to be read interms of Rule 7 of the Recruitment Rules as such regulationshave been framed in exercise of the powers conferred under Rule7 of the Recruitment Rules. It may be situation of casus omissusbut since such regulation is not in tune with Rule 7 of theRecruitment 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 isinconsequential for the purposes of the present appeals as thecase 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 candidatewho had availed concessions or relaxations as OBC and wasallocated to Maharashtra cadre, being the first State in Group Iin the scheme of grouping of States or cadres. Therefore, the

Aapplicant had no claim appointment to the Maharashtra cadre.She had no right to the Kerala cadre as well as the second post inthe vacancies in the State of Kerala was meant for an OBC outsidercandidate. Since Kerala was second last State in Group IV, theOBC candidate at Serial No. 131 was allocated such cadre.[Para 35][425-E-G]B

Satya Prakash v. Union of India 2002 SCC On LineDel 1000 : (2002) 99 DLT 749 (DB) – referred to.

15. The notification dated 3.12.2005 inviting applicationsfor CSE-2006 was in terms of Rule 7 of the Recruitment RulesCand also the allocation circular. The proviso to clause 16(1) ofthe notification contemplates that if an SC/ST or OBC candidatehas not availed any concessions or relaxations in the eligibilityor selection criteria at any stage of the examination, and if aftertaking into account the general qualifying standards is found fitfor recommendation by the Commission, they shall not beDrecommended against the vacancies reserved for SC/ST andOBC. [Para 38][427-D-E]

16. It is sub-clause (2) of Clause 16 of CSE-2006 whichgives an option to SC/ST or OBC candidate recommended againstunreserved vacancies to be adjusted against reserved vacancies,Eif by this process they get service of higher choice in order oftheir preference. Thus, an SC/ST or OBC candidate selectedagainst unreserved vacancy as general merit candidate cannotmake grievance in respect of allocation of cadre but has rightto seek service as reserved category candidate if that improvesFthe selection of service. In fact, all the candidates including theapplicant were put to notice as to how the cadre allocation wouldbe made. But still, the applicant chose to claim home state thoughshe was not eligible to be considered for such state. She hadtaken chance in appearing in the selection process but when shewas unsuccessful in getting the home cadre, attempts were madeGto 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 nota matter of right. It was held that selected candidate has right

to be considered for appointment to the IAS but he has no suchright to be allocated to cadre of his choice or to his home state.Allotment of cadre is an incidence of service. The applicant as acandidate for the All-India Service with eyes wide open has optedto serve anywhere in the country. Once an applicant gets selectedto service, the scramble for the home cadre starts. The procedurefor allocation of cadre is mechanical process and admits noexception except in terms of Rule 7(4) which is to be read asproviso to Rule 7(3). The State has no discretion of allocation ofa cadre at its whims and fancies. Therefore, the Tribunal or theHigh Court should have refrained from interfering with theallocation of cadre on the argument of alleged violation of theallocation circular. [Para 40][428-B-D]

18. The observation of the High Court that there was alack of consultation with the State of Kerala is not acceptable.Such consultation was not required to be carried out. The findingof the High Court that the determination of total vacancies to be89 was affected without any regard to cadre gap and on the groundthat the requisition by the State Government was ignored as therules and regulations warranted mandatory consultation withthe State of Kerala. Such conclusions are not supported by thedocuments on record including the additional affidavit filed bythe Union. The findings of the High Court that the action of theUnion was arbitrary as the allocation to certain States was morethan the cadre gap is again not sustainable as the 89 vacancieswere allocated to the States on the basis of the norms asdisclosed in the brief notes submitted before this Court.[Para 41][428-D-F]19. The judgment of the Kerala High Court in Jyothilal againproceeds on the assumption that consultation was required to becarried out with the State of Kerala though the candidate wasallocated to the State of Orissa. The judgment proceeds on basicfallacy that consultation has to be with the State to whom theofficer is to be allocated, not with the State with whom the officersclaim allocation. [Para 42][428-G]

20. In terms of Rule 6 of the Central AdministrativeTribunal (Procedure) Rules, 1987, an application before theCentral Administrative Tribunal is required to be filed where the

Aapplicant is posted for the time being or the cause of action whollyor in part has arisen. The applicant in her Original Applicationhas not laid any foundation as to how the Ernakulam Bench of theCentral Administrative Tribunal will have the jurisdiction toentertain an Original Application filed by her. It appears that theapplicant had chosen the Ernakulam Bench for the reason thatBshe was permanent resident of Kerala State. The applicant wasnot posted in the State of Kerala on the date of filing of theapplication. The applicant has not explained how the cause ofaction either wholly or partly had arisen within the jurisdiction ofthe Tribunal at Kerala. [Para 43][428-H; 429-A-B]

COil 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 SCC335 : [2007] 4 SCR 46; Nakul Deo Singh v. DeputyCommandant 1999 SCC OnLine Ker 366 – referredDto.21. The Union of India had not raised objection about theentertainment of an Original Application filed by the applicantbefore the Ernakulam Bench of the Central AdministrativeTribunal. The applicant filed an application before the ErnakulamEBench for the reason that she was permanent resident in theState or may be for the reason, the order of allocation was receivedby her in the State of Kerala. Both of these reasons do not giverise to part of cause of action arising within the Jurisdiction ofthe Ernakulam Bench of Tribunal. At this stage, the applicant isnot being non-suited on the ground that the Ernakulam Bench ofFthe 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 Indiav. Jyothilal and Ors. (2003) 3 ILR (Kerala) 516 –referred to.

Case Law Reference

[1974] 1 SCR 165[1991] 2 SCR 567

relied onPara 17followedPara 17

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.11480-11481 of 2021.

From the Judgment and Order dated 28.02.2017 of the High Courtof 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 KumarSharma, Advs. for the Appellants.

Haris Beeran, Mushtaq Salim, Usman Ghani Khan, Anand B.DMenon, 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 India[1], aredirected against an order passed by the High Court of Kerala at Ernakulamon 28.02.2017 whereby the appellant was directed to allocate therespondent[2] herein to the Kerala cadre of the All-India Service.

2. The applicant is candidate seeking appointment to the All-India Services in pursuance of the Civil Services Examination-2006[3].The applicant was successful as she found her name at Serial No. 20 ofthe candidates selected by the Union Public Service Commission[4]. Shebelongs to Muslim community and also to the Other Backward Class[5].She was allotted Himachal Pradesh cadre after the Union sought theconsent of Himachal Pradesh government on 13.11.2007, which wasduly 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’

A3. It is thereafter that the applicant filed an Original Applicationunder Section 19 of the Administrative Tribunals Act, 1985 before theErnakulam Bench of the Central Administrative Tribunal[6]. The Tribunaldirected the Union to allot and accommodate the applicant against theoutsider OBC vacancy in the Maharashtra cadre by virtue of her meritover the candidate already identified and allotted the Maharashtra cadre.BThe Union and the applicant aggrieved against the said order filed writpetitions before the High Court of Kerela at Ernakulam. The writ petitionof the Union challenging the direction of the Tribunal to accommodatethe applicant in the Maharashtra cadre was allowed. Also, even theoriginal application filed by the applicant for declaring and directing thatCthe applicant is eligible to be allotted the Kerala cadre was allowed.

4. The facts are not in dispute. The applicant, though an OBCcandidate, came on general merit without resorting to the relaxed standardfor the candidates belonging to OBC. The applicant was one of thecandidates belonging to Kerala and that the four other general categoryDcandidates were higher in merit than her. The placement of the applicant

is as under:

5. In the year in question, as per the policy, there was one postmeant for Insider Unreserved candidate against which Prasanth N (MeritNo. 4) from Kerala was allocated Kerala cadre. The second vacancyfor OBC Outsider was allotted to Patil Ajit Bhagwatrao (Merit No. 131).The grievance of the applicant was that she had better merit than ShriGSachindra Pratap Singh (Merit No. 26) who was allocated theMaharashtra cadre as an OBC candidate. The argument of the applicantwas that she was higher in merit as an OBC candidate, therefore, sheshould have been allocated the Maharashtra cadre. Such argument wasaccepted by the Tribunal.

H6 For short, the ‘Tribunal’

6. The High Court, in the writ petitions against the order of theTribunal, inter alia held that the Kerala government had submittedrequisition for minimum of 7 candidates. Even as per the Union, thecadre was of 124 direct recruits and the available officers were 119,therefore, there was cadre deficiency of 5 officers. It was held that 5admitted deficit vacancies were required to be filled up by following theoutsider-insider ratio in the given cycle of 30-point roster, then therewould be an insider vacancy, to be given either to the Scheduled Castesor Scheduled Tribes[7] 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 foundthat Rule 5(1) of the Indian Administrative Service (Cadre) Rules, 1954[8]contemplates consultation with the State Government in respect of matterof allocation of cadre. Since there was no consultation with thegovernment of Kerala, the Union is in breach of the mandate of Rule5(1).

7. We find that the High Court has completely misread the statutoryrules and the policy of allocation of cadre which would be discussedhereinafter.

8. The relevant rules, regulations and the policy instructions arerequired to be extracted before we proceed to discuss the respectivecontentions of the parties.

“The Indian Administrative Service (Cadre) Rules, 1954

In exercise of the powers conferred by sub-section 1 of Section 3of the All India Services Act, 1951 (LXI of 1951), the CentralGovernment, after consultation with the Governments of the Statesconcerned, hereby makes the following rules namely:

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2. Definitions: In these rules, unless the context otherwiserequires-

(a)‘Cadre officer’ means member of the IndianAdministrative Service;

(b)‘Cadre post’ means any of the post specified under item 1of each cadre in schedule to the Indian AdministrativeService (Fixation of Cadre Strength) Regulations, 1955.

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7 For short, the ‘SC/ST’

8 For short, the ‘Cadre Rules

A5. Allocation of members to various cadres – (1) Theallocation of cadre officers to the various cadres shall be made bythe Central Government in consultation with the State Governmentor the State Government concerned.”

9. The relevant Indian Administrative Service (Recruitment) Rules,B1954[9] and The Indian Administration Service (Appointment byCompetitive Examination) Regulations, 1955[10] read as under:

“The Indian Administrative Service (Recruitment) Rules,1954.

In exercise of the powers conferred by sub-section (1) of sectionC3 of the All-India Services Act, 1951 (LXI of 1951), the CentralGovernment after consultation with the Government of the Statesconcerned, hereby makes the following rules, namely:-

xxx xxx xxx

7. Recruitment by competitive examination.D

7(1) competitive examination for recruitment to the Serviceshall be held at such intervals as the Central Government may, inconsultation with the Commission, from time to time, determine.

7(2) The examination shall be conducted by the Commission inaccordance with such regulations as the Central Government mayEfrom time to time make in consultation with the Commission andState Government.

7(3) Appointment to the Service shall be subject to orders regardingspecial representation in the Service for Scheduled CastesScheduled Tribes [and Other Backward Castes] issued by theFCentral Government from time to time in consultation with theState Governments.

Provided that the candidates belonging to the ScheduledCastes or Scheduled Tribes [or the other Backward Classes]and declared by the Commission to be suitable for appointmentGto the Service shall be appointed against unreserved vacanciesin case they qualify for appointment to the Service based ontheir merit without recourse to the benefit of reservation.(Emphasis Supplied)

’[9 ]For short, the ‘Recruitment Rules’H10 For short, the ‘Competitive Examination Regulations’

7(4) Candidates belonging to the Scheduled Castes or theScheduled Tribes or Other Backward Classes declared by theCommission to be suitable for appointment to the Service withdue regard to the maintenance of efficiency of administration maybe appointed to the vacancies reserved for the candidates of theScheduled Castes or the Scheduled Tribes or Other BackwardClasses, as the case may be, under sub-rule (3).

Explanatory Note:- The Provisions for reservation in respect ofthe Other Backward Classes for recruitment to the Service wascommenced from the year 1994 onwards and hence it is proposedto give retrospective effect to the provisions of sub-rule (3) ofRule 7 from the 1[st] day of January 1994. It is certified that bygiving retrospective effect to the provisions of the sub-rule (3) ofRule 7, nobody is being adversely effected.”

“The Indian Administrative Service (Appointment byCompetitive Examination) Regulations, 1955

In pursuance of Rule 7 of the Indian Administrative Service(Recruitment) Rules, 1954, the Central Government, in consultationwith the State Governments and the Union Public ServiceCommission, hereby makes the following regulations, namely:-

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7. List of successful candidates:

(1)Subject to the provision of sub-regulation (2) the commissionshall forward to the Central Government list arranged inorder of merit of the candidates who have qualified by suchstandards as the Commission may determine.

(2)The candidates, belonging to any of the Scheduled Castesor the Scheduled Tribes may, to the extent of the number ofvacancies reserved for the Scheduled Castes and theScheduled Tribes, be recommended by the Commission bya relaxed standard, subject to the fitness of these candidatesfor selection to the Service.

Provided that the candidates, belonging to the ScheduledCastes and the Scheduled Tribes, who have beenrecommended by the Commission without resorting to therelaxed standard referred to in this sub-regulation, shall notbe adjusted against the vacancies reserved for the ScheduledCastes and the Scheduled Tribes.”

10. The notification for conducting CSE-2006 was published inthe Government of India Gazette on 03.12.2005. The relevant clausespertaining to allocation of cadre as provided by the notification readthus:

“NOTIFICATON

New Delhi, the 3[rd] December, 2005

RULES

No. 13018/6/2005-AIS(I).- The rules for competitiveexamination-Civil Services Examination to be held by the UnionPublic Service Cofmmission in 2006 for the purpose of fillingvacancies in the following services/posts are, with the concurrenceof the Ministries concerned and the Comptroller and AuditorGeneral of India in respect of the Indian Audit and AccountsService, published for general information.”

xxx

16 (1) After interview, the candidates will be arranged by theCommission in the order of merit as disclosed by the aggregatemarks finally awarded to each candidate in the Main Examination.Thereafter, the Commission shall, for the purpose of recommendingcandidates against unreserved vacancies, fix qualifying mark(hereinafter referred to as general qualifying standard) withreference to the number of unreserved vacancies to be filled upon the basis of the Main Examination. For the purpose ofrecommending reserved category candidates belonging to theScheduled Castes, Scheduled Tribes and Other Backward Classesagainst reserved vacancies, the Commission may relax the generalqualifying standard with reference to number of reservedvacancies to be filled up in each of these categories on the basisof the Main Examination:

Provided that the candidates belonging to the ScheduledCastes, Scheduled Tribes and the Other Backward Classeswho have not availed themselves of any of the concessionsor relaxations in the eligibility or the selection criteria, atany stage of the examination and who after taking intoaccount the general qualifying standards are found fit forrecommendation by the Commission shall not be recommendedagainst the vacancies reserved for Scheduled Castes,

Scheduled Tribes and the Other Backward Classes. (EmphasisSupplied)

(2) While making service allocation, the candidates belonging tothe Scheduled Castes, the Scheduled Tribes or Other BackwardClasses recommended against unreserved vacancies may beadjusted against reserved vacancies by the Govt. If by this processthey get service of higher choice in the order of theirpreference. (Emphasis Supplied)

(3) The Commission may further lower the qualifying standardsto take care of any shortfall of candidates for appointment againstunreserved vacancies and any surplus of candidates againstreserved vacancies arising out of the provisions of this rule, theCommission may make the recommendations in the mannerprescribed in sub-rules (4) and (5).

(4) While recommending the candidates, the Commission shall, inthe first instance, take into account the total number of vacanciesin all categories. This total number of recommended candidatesshall be reduced by the number of candidates belonging to theScheduled Castes, the Scheduled Tribes and Other BackwardClasses who acquire the merit at or above the fixed generalqualifying standard without availing themselves of any concessionor relaxation in the eligibility or selection criteria in terms of theproviso to sub-rule (1). Along with this list of recommendedcandidates, the Commission shall also declare consolidatedreserve list of candidates which will include candidates fromgeneral and reserved categories ranking in order of merit belowthe last recommended candidate under each category. The numberof candidates in each of these categories will be equal to thenumber of reserved category candidates who were included inthe first list without availing of any relaxation or concession ineligibility or selection criteria as per proviso to sub-rule (1). Amongstthe reserved categories, the number of candidates from each ofthe Scheduled Caste, the Scheduled Tribe and Other BackwardClass categories in the reserve list will be equal to the respectivenumber of vacancies reduced initially in each category.

(5) The candidates recommended in terms of the provisions ofsub-rule (4), shall be allocated by the Government to the Servicesand where certain vacancies still remain to be filled up, the

414SUPREME COURT REPORTS

AGovernment may forward requisition to the Commission requiringit to recommend, in order of merit, from the reserve list, the samenumber of candidates as requisitioned for the purpose of filling upthe unfilled vacancies in each category.”

11. The Union had prescribed procedure to be followed in theBallotment 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 24States were arranged in alphabetical order. Later, another procedurewas circulated on 30/31.05.1985[11]. It is the said allocation circular whichwas in force at the time of cadre allocation for the year 2007.Maharashtra, Manipur-Tripura, Nagaland, Orissa, Punjab, Rajasthan andCSikkim fell in Group III whereas Haryana, Himachal Pradesh, Jammu& Kashmir, Karnataka, Kerala and Madhya Pradesh fell in Group II.The principles of allocation on the basis of roster system were as follows:

“Government of India

DMinistry of Personnel & Training

Administrative Reforms and Public Grievances and Pensions

Secretary

D.O. No. 13012/5/84-AIS(I)

Dated 30/31 May 1985

EXXX

XXX

(1) The vacancies in every cadre will be earmarked for ‘outsiders’and ‘insiders’ in the ratio of 2:1. In order to avoid problems relatingto fractions and to ensure that this ratio is maintained, over aperiod of time, if not during allocation, the break-up of vacanciesFin cadre between ‘outsiders’ and ‘insiders’ will be calculatedfollowing the cycle of ‘outsider’, ‘insider’, ‘outsider’.

(2) The vacancies for Scheduled Castes and Scheduled Tribeswill be reserved in the various cadres according to the prescribedpercentage. For purpose of this reservation, Scheduled CastesGand Scheduled Tribes will be grouped together and the percentageswill be added. Distribution of reserved vacancies in each cadrebetween ‘outsiders’ and ‘insiders’ will be done in the ratio of 2:1.This ratio will be operationalised by following cycle ‘outsider’,‘insider’, ‘outsider’ as is done in the case of general candidates.

H11 For short, the ‘allocation circular’

(3) Allocation of ‘insiders’, both men and women, will be strictlyaccording to their ranks, subject to their willingness to be allocatedto their home States.

(4) Allocation of ‘outsiders’, whether they are general candidatesor reserved candidates, whether they are men or women, will beaccording to the roster system after placing ‘insiders’ at their properplaces on the chart as explained below:

(i)All the State cadres/Joint cadres should be arrangedin alphabetical order and divided into four groupswhich, on the basis of the average over period oftime, are taking roughly equal number of candidateseach. On the basis of average intake during the last4 years, the groups could be as follows:

Group I : Andhra Pradesh, Assam, Meghalaya, Bihar andGujarat.

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 andWest Bengal.

(ii)Since the number of cadres/Joint Cadres is 21, thecycles will be 1-21, 22-42, 43-63 and so on.

(iii)The ‘insider’ quota should then be distributed amongthe States and assigned to different cycles ofallotment. For example, if State gets 4 ‘insider’candidates, they should go to the share of the Statein their respective cycles and if there are 2, ‘insider’candidates from the same cycle, they should betreated as going to the State in two successive cyclesand so on.

(iv)The ‘outsider’ candidates should be arranged in orderof merit and allotted to the State cadres in cycles asdescribed in (v) below.

(v)In the first cycle, State cadre/Joint Cadres whichhave not received ‘insider’ candidates should be given

416SUPREME COURT REPORTS

Aone candidate each in order of merit of ‘outsider’candidates. The process should be repeated insuccessive cycles, each successive cycle beginningwith the next successive group of States, e.g., thesecond cycle should begin from Group III States, thethird cycle with Group III States and the fourth cycleBwith Group IV States and the fifth cycle again withGroup I States. Occasionally it may happen that acandidate’s turn may come in such way that hemay get allocated to his own home State. When thathappens, the candidate next below him should beCexchanged with him.

(vi)For the succeeding year, the State cadres should bearranged again in alphabetical order but with GroupI of the previous year at the bottom, i.e., thearrangement will begin with Group II on top. In theDthird year, Group III will come on top and so on.

(vii)In the case of candidates belonging to the reservedcategory, such of those candidates, whose positionin the merit list is such that they could have beenappointed to the service even in the absence of anyreservation, will be treated on par with generalcandidates for purposes of allotment though they willbe counted against reserved vacancies. In respectof other candidates belonging to the reservedcategory procedure similar to the one adopted forgeneral candidates would be adopted. In other words,a separate chart should be prepared with similargrouping of States and similar operational detailsshould be followed. If there is shortfall in general‘insiders’ quota it could, however, be made up by‘insider’ reserved candidates.”

G12. It has also come on record that as per meeting held on04.07.2002, the number of vacancies to be filled for IAS every yearfrom 2002 up to 2007 worked out to be 85. Such decision was in termsof Rule 4 of the Cadre Rules. The review was contemplated to be afterfive years as against three years prevalent prior to notification datedH10.03.1995. 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 bythe time this decision was taken, the process of Civil Services Examination-2002[12] was already initiated. Therefore, the Commission expressed itsinability to recruit 85 officers in the CSE-2002. Hence, it was decided torecruit 70 officers in CSE-2002 and distribute the remaining 15 vacanciesover the next four years. Therefore, the actual requirement of vacanciesfor CSE-2006 became 89 (85+4).

13. There was requisition for 108 posts by the States as againstthe 89 posts available for allotment. Kerala had sought 7 to 14 officersas against 2 officers allocated to it. In the brief notes circulated on behalfof the Union before this Court on 24.09.2018, it was mentioned thatthere were total 595 districts in the country whereas Kerala had 14districts at the time of distribution of vacancies for CSE-2006. Therefore,the vacancies in Kerala were determined as 14/595*89= 2.09 (roundedoff to 2). In the additional affidavit filed by the Union on 31.10.2018, itwas also pointed out that strength of 89 was divided between the cadreson the ratio of number of districts in each State. The 2 vacancies in theState of Kerala were decided to be filled up in the following manner:

14. In respect of the applicant, foot note was given that she is aGeneral Merit Candidate. She had not availed any concessions/relaxationsadmissible to an OBC candidate.

15. In light of this factual background, the argument of the Unionwas that in terms of Rule 7(3) of the Recruitment Rules, candidatesbelonging to SC/ST or OBC shall be appointed against unreservedvacancies in case they qualify for appointment to the service based ontheir merit without recourse to the benefit of reservation. However, Rule7(4) contemplates that the candidates belonging to SC/ST or OBC maybe appointed to the vacancies reserved for the candidates of the SC/ST

12 For short, the ‘CSE-2002’

418SUPREME COURT REPORTS

Aor OBC, as the case may be, under sub-rule (3) with due regard to themaintenance of efficiency of administration. It was thus contended thatin terms of Rule 7(3), if SC/ST or OBC candidate is appointed withoutrecourse to the benefit of relaxed standard, they shall be appointed againstunreserved vacancies. However, Rule 7(4) is an enabling provision, asan exception to Rule 7(3), that SC/ST or OBC candidate may beBappointed to the vacancies reserved for SC/ST or OBC candidates withdue regard to maintenance of efficiency of administration. Therefore, interms of the Recruitment Rules, the applicant was assigned HimachalPradesh cadre as general category candidate and in terms of sub-clause (v) and (vi) of Clause 4 of the allocation circular. The applicantChad not availed any concessions/relaxations as admissible to OBCcandidates. Therefore, she was general merit candidate. SachindraPratap Singh who was an OBC candidate had ranked 26 in the meritlist. He had availed concessions and relaxations available to such OBCcandidates unlike the applicant. Therefore, as an OBC candidate, thefirst vacancy of OBC was allocated to Maharashtra cadre as it was theDfirst State in the grouping of cadres to be followed for cadre allocation.The scheme of grouping of cadres was that all 24 States were put in thefour groups on the basis of the average over period of time, by takingroughly equal number of candidates for each State on the basis of averageof the last four years. The State cadres were then arranged again inEalphabetical order but Group I of the previous year was placed at thebottom, i.e., the arrangement of the previous year at the bottom. Thus,the next year arrangement will begin with Group II on top. In the thirdyear, Group III would come on top and so on. Thus the cadre allocationof the candidates selected on the basis of CSE 2006 were in the followingmanner:-F

16. It was also argued that consultation contemplated under Rule

5(1) of the Cadre Rules was held with the State of Himachal PradeshHwhere the applicant was allocated. The offer of allocation of the applicant

was accepted by the State of Himachal Pradesh. Therefore, the requiredconsultation process was complete in respect of allocation of the applicantto the State of Himachal Pradesh. The High Court had thus completelyerred in law in holding that the consultation was required to be done withthe State of Kerala for the reason the applicant belongs to Kerala andwanted to be allocated to Kerala. No such consultation was warrantedin respect of the applicant with Kerala Government as she was 5[th] in themerit list of the candidates from Kerala. The first vacancy meant forinsider from Kerala candidate was filled up by Prasanna N. The othervacancy was meant for outsider OBC which was filled in by person atSerial No. 131 as Kerala was the second-last State in Group IV for thatparticular year.

17. It was also argued that decision to fill up 89 vacancies was anadministrative decision keeping in view multiple factors including theavailability of infrastructure for training of the candidates at Lal BahadurShastri National Academy of Administration, Mussoorie. It wascontended that mere vacancy in the cadre or in particular State doesnot confer any legal right for the State to demand additional officers assuch administrative decision is not confined to one State alone but to theentire country. Therefore, the officers could not be allocated to the Stateof Kerala in contravention to the policy decision of filling up 89 vacanciesin the CSE-2006. Reliance was placed upon judgment of this Courtreported as The State of Haryana v. Subhash Chander Marwahaand Ors.[13] and Shankarsan Dash v. Union of India[14].

18. The appellant also referred to three Judge Bench judgmentof this Court reported as Union of India and Ors. v. Rajiv Yadav, IASand Ors.[15] wherein considering the allocation circular, it was held that aselected candidate had right to consider the appointment of the IASbut he had no such right to be allocated to cadre of his choice or to hishome state. Allocation of cadre was an incidence of service. The Courtheld as under:

“6. We may examine the question from another angle. selectedcandidate has right to be considered for appointment to the IASbut he has no such right to be allocated to cadre of his choice orto his home State. Allotment of cadre is an incidence of service.

13 (1974) 3 SCC 22014 (1991) 3 SCC 47

15 (1994) 6 SCC 38

AA member of an all-India Service bears liability to serve in anypart of India. The principles of allocation as contained in clause(2) of the letter dated 31-5-1985, wherein preference is given to aScheduled Caste/Scheduled Tribe candidate for allocation to hishome State, do not provide for reservation of appointments orposts and as such the question of testing the said principles on theBanvil of Article 16(4) of the Constitution of India does not arise.……………… But for the “Roster System” it would be difficultrather impossible for the Scheduled Caste/Scheduled Tribecandidates to be allocated to their home States. The principles ofcadre allocation, thus, ensure equitable distribution of reservedCcandidates amongst all the cadres.”

19. It was contended that judgment of this Court reported asUnion of India and Anr. v. Satya Prakash and Ors.[16] arises out ofthe fact where OBC candidates selected on merit were taken intoconsideration to determine the quota of OBC candidates. Therefore, theDsaid judgment would not be applicable to the facts of the present case asit is not the case of any other parties that OBC candidates appointed onmerit have been taken into consideration for determining the quota ofOBC candidates for filling up of the post in terms of CSE-2006 notification.

20. On the other hand, learned counsel for the applicant arguedEthat on the basis of the affidavit filed by the State of Kerala, there wasno consultation with it in respect of allocation of the applicant to theState of Kerala. The reliance is based upon Division Bench judgmentof Kerala High Court reported as Union of India v. Jyothilal andOrs.[17] wherein for lack of consultation with the State, the Division Benchheld as under:F

“37. In view of the above, it is held that:

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(v) In the present case, the provision of Rule 5 was not followedinasmuch as the order of allocation had been actually passed andGcommunicated by the Central Government vide its letter dated,December 17, 1993. The letters for consultation with the StateGovernment had been issued by the Central Government onFebruary 8, 1994. The consultation had to precede the order and

16 (2006) 4 SCC 550H17 (2003) 3 ILR (Kerala) 516

not follow it. It is settled that if anything is required to be done ina particular way, it must be done in that manner and no other. Thisrule was admittedly not followed. Thus, the action in the presentcase was not in conformity with the provision contained in Rule5.”

21. It has been pointed out that Civil Appeal No. 47/2004 againstthe said judgment was decided on 03.05.2006 wherein it was held bythis Court as under:

“Although number of legal issues of seminal importance weresought to be raised and urged before us, it appears to us that thereno final relief that can be granted to the Union of India in thisAppeal. The first respondent has been working as an officer ofthe State of Kerala cadre for almost ten years. Therefore, it wouldbe unjust and inequitable to direct his reallocation to the State ofOrissa cadre, both from his point of view and from the point ofview of the efficiency of the administration. We are, therefore,not inclined to make any such order with regard to the reallocationof the first respondent to the State of Orissa cadre.

In the result, we think that just solution would be to dismissedthis Appeal filed by the Union of India, keeping open all the issuesof law raised in this Appeal to be urged and decided in moreappropriate case.”

22. It is argued that the applicant is an OBC candidate, therefore,she is in need of availing OBC status only at the time of cadre allocation,whereas the Union had overlooked this fact. The candidate at serial no.26 had been allocated Maharashtra Cadre as an outsider, whereas, theapplicant is also an outsider candidate so far as Maharashtra is concerned,therefore, she is entitled to be allocated to Maharashtra cadre.

23. The first question required to be examined is whetherconsultation in respect of allocation of cadre is required to be done withthe State from which the candidate belongs or with the State to whichthe candidate is being allocated. The entire basis of claim of the applicantis that there was no consultation with the State of Kerala. The saidargument is however untenable. The applicant was allocated to the Stateof Himachal Pradesh and there was consent duly given by the State ofHimachal Pradesh for her allocation to that State. In fact, no consultationwas required to be carried out in respect of the applicant with Kerala

[2021] 11 S.C.R.

AState. Therefore, mandate of Rule 5(1) of the Cadre Rules is satisfiedwhen consultation was made with the State to which allocation wasmade.

24. The State of Kerala has not disputed the decision arrived at inthe meeting held on 04.07.2002, whereby the allocation of 89 vacanciesBto be filled up to the year 2007 was arrived at. Out of 89 vacancies, twovacancies were allocated to the State of Kerala, one to be filled up by aninsider and other by an outsider OBC. The fact that the Kerala Cadre isdeficient in respect of number of officers cannot be disputed by asuccessful candidate as such candidate had no right to claim additionalvacancies so that the applicant can be assigned home state. The argumentCto claim that the entire deficient cadre should be made by allocation toone 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 Unionand not by one State or by the Courts.

25. The allocation order was approved by this Court in RajivDYadav. The number of vacancies allocated to each State was againbased on logical mechanism as the number of districts in the entire countryi.e., 595 divided by the number of districts in the State. Thus, in thismanner, the vacancies available for allocation to the various States werearrived at. Accordingly, the two vacancies were allocated to the State ofKerala and the allocation in other States was in respect of number ofEdistricts available in each State.

26. 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 general category candidate, having not availedany of the relaxed standards meant for candidate of OBC category. InFterms of proviso to Rule 7(3) of the Recruitment Rules and the provisoto clause 16(1) in the notification inviting applications for CSE-2006, thecandidates including the applicant were put to notice, that SC/ST orOBC candidates will be treated as General Category Candidates whohave not availed any concession or relaxation. The applicant was thusGrightly treated as General Category candidate. In terms of Clause 16(2)of the CSE-2006 notification, the candidates belonging to the SC/ST orOBC recommended against unreserved vacancies may be adjustedagainst reserved vacancies by the Government, if by this process theyget service of higher choice in the order of their preference. Theapplicant was already allocated IAS as there was no question of changeHof service.27. Therefore, as general category candidate, there was nooccasion for consultation with State of Kerala as the applicant was noteven eligible to be considered for allocation to the said State in terms ofthe allocation order. The reasoning given by the High Court that therewas cadre deficiency, therefore, the applicant was entitled to be allocatedis strange and bereft of any merit.

28. The consistent view of this Court has been that even if thename of the candidate appears in the merit list, such candidate has noright to claim appointment. The Constitution Bench in judgment reportedas Shankarsan Dash held as under:

“7. It is not correct to say that if number of vacancies are notifiedfor appointment and adequate number of candidates are found fit,the successful candidates acquire an indefeasible right to beappointed which cannot be legitimately denied. Ordinarily thenotification merely amounts to an invitation to qualified candidatesto apply for recruitment and on their selection they do not acquireany right to the post. Unless the relevant recruitment rules soindicate, the State is under no legal duty to fill up all or any of thevacancies. However, it does not mean that the State has the licenceof acting in an arbitrary manner. The decision not to fill up thevacancies has to be taken bona fide for appropriate reasons. Andif the vacancies or any of them are filled up, the State is bound torespect the comparative merit of the candidates, as reflected atthe recruitment test, and no discrimination can be permitted. Thiscorrect position has been consistently followed by this Court, andwe do not find any discordant note in the decisions in State ofHaryana v. Subash Chander Marwaha [(1974) 3 SCC 220 : 1973SCC (L&S) 488 : (1974) 1 SCR 165] , Neelima Shangla v. Stateof Haryana [(1986) 4 SCC 268 : 1986 SCC (L&S) 759] ,or Jatinder Kumar v. State of Punjab [(1985) 1 SCC 122 : 1985SCC (L&S) 174 : (1985) 1 SCR 899] .”

29. In Subhash Chander Marwaha, this Court held that theexistence of vacancies does not give any legal right to candidate to beselected for appointment. It was held as under:

“10. One fails to see how the existence of vacancies give legalright to candidate to be selected for appointment. The examinationis for the purpose of showing that particular candidate is eligiblefor consideration. The selection for appointment comes later. It is

Aopen then to the Government to decide how many appointmentsshall be made. The mere fact that candidate’s name appears inthe list will not entitle him to mandamus that he be appointed.Indeed, if the State Government while making the selection forappointment had departed from the ranking given in the list, therewould have been legitimate grievance on the ground that theBState Government had departed from the rules in this respect.………… There is no constraint that the Government shall makean appointment of Subordinate Judge either because there arevacancies or because list of candidates has been prepared andis in existence. “C

30. Therefore, the decision of the Union to fill only 89 vacanciesin the cadre of IAS cannot be permitted to be disputed. The High Courthad exceeded its jurisdiction to order allocation of Kerala Cadre to theapplicant without examining the policy decision of the Union to fill uponly 89 vacancies. The High Court again erred in law that an OBCDcandidate, who has not availed relaxation or concession, had to be treatedas general category candidate.

31. Rule 7(3) of the Recruitment Rules contemplates that thecandidate belonging to the SC/ST or OBC found suitable by theCommission for appointment to the service “shall be appointed againstEunreserved vacancies” in case they qualify for appointment to theservice based on their merit without recourse to the benefit of reservation.Such provision in the rule is consonance with the judgment of thisCourt in Indra Sawhney and Ors. v. Union of India and Ors.[18] whichreads thus:“811. In this connection it is well to remember that the reservationsFunder Article 16(4) do not operate like communal reservation. Itmay well happen that some members belonging to, say, ScheduledCastes get selected in the open competition field on the basis oftheir own merit; they will not be counted against the quota reservedfor Scheduled Castes; they will be treated as open competitionGcandidates.”

32. Rule 7(4) is to be read as proviso to Rule 7(3) of theRecruitment 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 SC/ST or OBC candidate who has been found suitablefor appointment against the unreserved vacancies can be appointed againstthe vacancy reserved for SC/ST or OBC, provided conscious decisionis taken with regard to the maintenance of efficiency of administration.

33. The applicant though belonging to OBC has not availed anyrelaxations or concessions admissible to OBC candidates. She was ageneral merit candidate, thus not entitled to OBC reserved seat in herState. She was allocated to Himachal Pradesh cadre as general categorycandidate falling in Rule 7(3) in view of her merit position as generalcategory candidate.

34. Regulation 7 of the Competitive Examination Regulationsframed under the Recruitment Rules does not make mention of OBCcandidate in the list of successful candidates published under Rule 7 butsuch regulation has to be read in terms of Rule 7 of the RecruitmentRules as such regulations have been framed in exercise of the powersconferred under Rule 7 of the Recruitment Rules. It may be situationof casus omissus but since such regulation is not in tune with Rule 7 ofthe 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 thepurposes of the present appeals as the case of the applicant falls withinRule 7 of the Recruitment Rules.

35. We find that Sachindra Pratap Singh was the first OBCcandidate who had availed concessions or relaxations as OBC and wasallocated to Maharashtra cadre, being the first State in Group I in thescheme of grouping of States or cadres. Therefore, the applicant had noclaim appointment to the Maharashtra cadre. She had no right to theKerala cadre as well as the second post in the vacancies in the State ofKerala was meant for an OBC outsider candidate. Since Kerala wassecond last State in Group IV, the OBC candidate at Serial No. 131 wasallocated such cadre.

36. The appeal before this Court in Satya Prakash was againstan order passed by the Delhi High Court reported as Satya Prakash v.Union of India[19]. In the aforesaid case, an OBC candidate was notappointed to any of the Central Services as the Union had taken the

19 Union of India, 2002 SCC On Line Del 1000 = (2002) 99 DLT 749 (DB)

Acandidates appointed on general merit though belonging to OBC todetermine the percentage of appointed OBC candidates. The Delhi HighCourt was examining CSE-1996 which was notification invitingapplications for 28 different categories of services. In fact, rules mentionedin the said judgment are not the rules but clauses provided in theadvertisement. The core question and the answer to the question posedBare as under:

“12. The core question which arises for consideration in thesewrit petitions, is as to whether those OBC candidates were selectedon merit and were placed in the list of open category candidatehaving regard to the decision of the Apex Court in Ritesh R. Sah’sCcase (supra), could still for the purpose of placement be consideredto be OBC candidate leading to deprivation of the other OBCcategory candidates from allocation of service whatsoever.

13. ....So far as the reserved category candidates are concerned,the recommendations of the Commission have to be consideredDhaving regard to the relaxed standard applied in their case, as isevident from Sub-rule (ii) of Rule 16 aforementioned. The provisoappended to Rule 16 in no uncertain terms states that suchcandidates belonging to the Scheduled Castes, the ScheduledTribes and Other Backward Classes, who had been recommendedEby the Commission without resorting to the relaxed standard, i.e.,on merit, shall not be adjusted against the vacancies reserved forthe respective reserved category candidates.

xxx xxx xxx

15. The decision of the Apex Court in Ritesh R. Sah’s case (supra),Fas also the proviso to Rule 16 clearly prohibit deprivation of thebenefit of the reservation only because some reserved categorycandidates had also been selected on merit inasmuch as they werenot to be treated as reserved category candidates except for alimited purpose, namely, for the purpose of allocation of service,Gbut thereby OBC candidates cannot be deprived of their right toobtain allocation of any service.

…. It cannot be contended that both for the purpose of allocationof job as also for the purpose of computation as regards numberof OBC category candidates those OBC candidates selected onmerit although were to be treated as general category candidates

but for all intent and purport they would still be considered to bethe reserved category candidates.

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17. …..The Apex Court clearly held that if candidate is entitledto be admitted on the basis of his own merit then such admissionshould not be counted as against the quota of the Scheduled Castesor Scheduled Tribes or any other reserved category since thesame would be against the constitutional mandate of Article 16(4)of the Constitution of India.”

37. It is the appeal against the said judgment which was dismissedby this Court on 05.04.2006 in Satya Prakash.The clause in theadvertisement published on 3.12.2005 is prior to the Judgement of thisCourt, therefore, certain clauses in the Rules and/ or advertisement maynot be consistent with the law laid down by this Court in Indra Sawhney.But such question does not arise for consideration of this Court; therefore,it is not necessary to decide the legality and validity of the Rules.

38. The notification dated 3.12.2005 inviting applications for CSE-2006 was in terms of Rule 7 of the Recruitment Rules and also theallocation circular. The proviso to clause 16(1) of the notificationcontemplates that if an SC/ST or OBC candidate has not availed anyconcessions or relaxations in the eligibility or selection criteria at anystage of the examination, and if after taking into account the generalqualifying standards is found fit for recommendation by the Commission,they shall not be recommended against the vacancies reserved for SC/ST and OBC.

39. It is sub-clause (2) of Clause 16 of CSE-2006 which gives anoption to SC/ST or OBC candidate recommended against unreservedvacancies to be adjusted against reserved vacancies, if by this processthey get service of higher choice in order of their preference. Thus, anSC/ST or OBC candidate selected against unreserved vacancy as ageneral merit candidate cannot make grievance in respect of allocationof cadre but has right to seek service as reserved category candidateif that improves the selection of service. In fact, all the candidatesincluding the applicant were put to notice as to how the cadre allocationwould be made. But still, the applicant chose to claim home state thoughshe was not eligible to be considered for such state. She had takenchance in appearing in the selection process but when she was

Aunsuccessful in getting the home cadre, attempts were made to get intothe home cadre on wholly untenable grounds.

40. In the light of Rajiv Yadav, the allocation of cadre is not amatter of right. It was held that selected candidate has right to beconsidered for appointment to the IAS but he has no such right to beBallocated to cadre of his choice or to his home state. As stated above,allotment of cadre is an incidence of service.The applicant as candidatefor the All-India Service with eyes wide open has opted to serve anywherein the country. Once an applicant gets selected to service, the scramblefor the home cadre starts. The procedure for allocation of cadre is amechanical process and admits no exception except in terms of RuleC7(4) which is to be read as proviso to Rule 7(3). The State has no discretionof allocation of cadre at its whims and fancies. Therefore, the Tribunalor the High Court should have refrained from interfering with theallocation of cadre on the argument of alleged violation of the allocationcircular.D

41. We find the observation of the High Court that there was alack of consultation with the State of Kerala is not acceptable. Suchconsultation was not required to be carried out as discussed above. Thefinding of the High Court that the determination of total vacancies to be89 was affected without any regard to cadre gap and on the ground thatEthe requisition by the State Government was ignored as the rules andregulations warranted mandatory consultation with the State of Kerala.We find that such conclusions are not supported by the documents onrecord including the additional affidavit filed by the Union. The findingsof the High Court that the action of the Union was arbitrary as theallocation to certain States was more than the cadre gap is again notFsustainable as the 89 vacancies were allocated to the States on the basisof the norms as disclosed in the brief notes submitted before this Court.42. The judgment of the Kerala High Court in Jyothilal againproceeds on the assumption that consultation was required to be carriedout with the State of Kerala though the candidate was allocated to theGState of Orissa. The judgment proceeds on basic fallacy that consultationhas to be with the State to whom the officer is to be allocated, not withthe State with whom the officers claim allocation.

43. Before parting, we would like to observe that in terms of Rule6 of the Central Administrative Tribunal (Procedure) Rules, 1987, anHapplication before the Central Administrative Tribunal is required to be

filed where the applicant is posted for the time being or the cause ofaction wholly or in part has arisen. The applicant in her Original Applicationhas not laid any foundation as to how the Ernakulam Bench of the CentralAdministrative Tribunal will have the jurisdiction to entertain an OriginalApplication filed by her. It appears that the applicant had chosen theErnakulam Bench for the reason that she was permanent resident ofKerala State. The applicant was not posted in the State of Kerala on thedate of filing of the application. The applicant has not explained how thecause of action either wholly or partly had arisen within the jurisdictionof the Tribunal at Kerala.

44. This Court in judgment reported as Oil and Natural GasCommission v. Utpal Kumar Basu & Ors.[20] was examining filing of awrit petition before the Calcutta High Court for the reason that the writpetitioner would suffer loss at its registered office which is situated withinthe jurisdiction of the Calcutta High Court. It may be stated that broadlylanguage of Article 226 and Rule 6 of the Central Administrative Tribunal(Procedure) Rules, 1987 is similar. This Court considering Article 226(2) of the Constitution held as under:

“8. From the facts pleaded in the writ petition, it is clear thatNICCO invoked the jurisdiction of the Calcutta High Court on theplea that part of the cause of action had arisen within its territorialjurisdiction. According to NICCO, it became aware of the contractproposed to be given by ONGC on reading the advertisementwhich appeared in the Times of India at Calcutta. In responsethereto, it submitted its bid or tender from its Calcutta office andrevised the rates subsequently………….. Therefore, broadlyspeaking, NICCO claims that part of the cause of action arosewithin the jurisdiction of the Calcutta High Court because it becameaware of the advertisement in Calcutta, it submitted its bid ortender from Calcutta and made representations demanding justicefrom Calcutta on learning about the rejection of its offer. Theadvertisement itself mentioned that the tenders should be submittedto EIL at New Delhi; that those would be scrutinised at NewDelhi and that final decision whether or not to award the contractto the tenderer would be taken at New Delhi. Of course, theexecution of the contract work was to be carried out at Hazira inGujarat. Therefore, merely because it read the advertisement atCalcutta and submitted the offer from Calcutta and made

Arepresentations from Calcutta would not, in our opinion, constitutefacts forming an integral part of the cause of action. So also themere fact that it sent fax messages from Calcutta and received areply thereto at Calcutta would not constitute an integral part ofthe cause of action. Besides the fax message of 15-1-1993, cannotbe construed as conveying rejection of the offer as that factBoccurred on 27-1-1993. We are, therefore, of the opinion thateven if the averments in the writ petition are taken as true, itcannot be said that part of the cause of action arose within thejurisdiction of the Calcutta High Court.”45. This Court in Judgment reported as Alchemist Ltd. v. StateCBank of Sikkim[21], reviewing the entire case law to determine as towhen the cause of action wholly or in part arises held that even if smallfraction of the cause of action arises within the jurisdiction of the court,the court would have territorial jurisdiction to entertain the suit/petition.This Court held as under:-D“37. From the aforesaid discussion and keeping in view the ratiolaid down in catena of decisions by this Court, it is clear that forthe purpose of deciding whether facts averred by the appellant-petitioner would or would not constitute part of cause of action,one has to consider whether such fact constitutesEa material, essential, or integral part of the cause of action. It isno doubt true that even if small fraction of the cause of actionarises within the jurisdiction of the court, the court would haveterritorial jurisdiction to entertain the suit/petition. Nevertheless itmust be “part of cause of action”, nothing less than that.”

F46. The Full Bench of the Jurisdictional High Court in judgmentreported as Nakul Deo Singh v. Deputy Commandant[22] wasconsidering an Original Petition filed before the Kerala High Court by aHead Constable working in the Central Industrial Security Force Unit atBokkaro Steel Plant. In the said case, the disciplinary authority and theappellate authority were situated outside the territorial jurisdiction of theGHigh Court. The applicant claimed that since the order of appellateauthority was received within the jurisdiction of the Kerala High Court,therefore, it will have the jurisdiction to entertain the Original Petition.The Court held as under:

21 (2007) 11 SCC 335H22 1999 SCC OnLine Ker 366

“29. …….It appears to us that the decisions in Swaika At bestreceipt of the order or communication only gives the party rightof action based on the cause of action arising out of the actioncomplained of. When that action complained of takes place outsidethe territorial jurisdiction of the High Court and an appeal thereforeis dismissed by an authority located outside the jurisdiction of theHigh Court cause of action wholly arises outside the jurisdictionof the High Court and Art. 226(2) of the Constitution cannot beinvoked to sustain Writ Petition in this High Court on the basisthat part of the cause of action has arisen within the jurisdictionof this court, merely because the appellate order communicatedfrom the seat of the appellate authority was received while thepetitioner was residing or working within the jurisdiction of thiscourt Acceptance of the argument that the situs of the receipt ofthe order will determine the jurisdiction can lead to position wherea litigant would be in position to choose his own court for thepurpose of redressal of his grievance. All that he need do is tomove over to particular place for receiving the communicationfrom the appellate authority and then approach the High Court ofthat place with plea that that court had jurisdiction because theorder of the appellate authority was served on him while he wasresiding within the jurisdiction of that High Court No litigant canhave right to choose the court for seeking relief and the mereintroduction of clause 2 of Art. 226 does not alter that position.”

47. It may be noticed that Union had not raised objection aboutthe entertainment of an Original Application filed by the applicant beforethe Ernakulam Bench of the Central Administrative Tribunal. It appearsthat the applicant filed an application before the Ernakulam Bench forthe reason that she was permanent resident in the State or may be forthe reason, the order of allocation was received by her in the State ofKerala. Both of these reasons do not give rise to part of cause of actionarising within the Jurisdiction of the Ernakulam Bench of Tribunal. Atthis stage, the applicant is not being non-suited on the ground that theErnakulam Bench of the Tribunal had no jurisdiction.