JUDGMENT
1. In this O.A. the applicant has challenged the order dated 18.11.1996 issued by Ministry of Personnel, Public Grievance and Pensions, Department of Personnel & Training whereby he had been allotted Gujarat cadre on the ground that he had opted for Tamil Nadu cadre and was first in the State and at Sr. No. 23 in the All India merit list. It is submitted by applicant that since he was topper in the State and was also OBC even if ratio of 2:1 was to be applied, he ought to have been allotted Tamil Nadu cadre whereas the respondents have given the Tamil Nadu cadre to a S.C. candidate as insider who was holding 180th rank in the All India merit list which according to applicant is absolutely wrong as it is unconstitutional in so far as it makes microscopic mini classification which is an antithesis of equality clause. According to him, no caste based classification is permissible for cadre allocation. He has further submitted that out of five vacancies consider vacancy should have been filed oil the basis of merit amongst the insiders and since he was No. 1 in the Tamil Nadu State but it was wrongly filled by S.C. insider candidate, who was at 180th position. He was also submitted that since there was only one post for insider it could not have been reserved for S.C. as it would amount to 100% reservation. He has also submitted that in 1996 there were indeed six vacancies filled as one person was allowed cadre change from West Bengal to Tamil Nadu, thus if six vacancies are taken, then also sixth vacancy should have again gone to an insider maintaining the ratio of 2:1 but respondents have violated this ratio also as five outsiders have been taken in 1996 while only one vacancy had gone to insider which is absolutely wrong and arbitrary. He has in the last stated that there are cases where cadre change has been permitted on representations or Court directions and his family circumstances are such that he is required at Tamil Nadu to look after his aged parents. He has thus claimed following relief(s) :
(a) That this Hon'ble Tribunal may be pleased to direct the respondents to allocate the applicant to the Tamil Nadu Cadre under the powers conferred by Rule 5 of the Indian Administrative Services (Cadre) Rules, 1954. AND (b) pass any other further orders as this Hon'ble Tribunal may be deemed fit. 2. The respondents have opposed the O.A. and have stated that all the points raised by applicant in this O.A. are already settled by Hon'ble Supreme Court in Rajiv Yadav's case reported in 1994(6) SCC 3 herein it has been held by Hon'ble Supreme Court as follows : "We may examine the question from another angle a selected candidate has a right to be consider for appointment to the IAS but he has no such right to be allocated to a cadre of his choice or to his home State Allotment of cadre is an incident of service. A member of an All India Service bears liability to serve in any part of India." "When a person is appointed to an All India Service, having various state cadre, he has no right to claim allocation to a state of his choice or to his home state. The Central Government is under no legal obligation to have options or even preferences from the officer concerned. Rule 5 of the Cadre rules makes the Central Government the sole authority to allocate the members of the service to various cadres. It is not obligatory for the Central Government to frame rules/regulations or otherwise notify the principles of cadre allocation."
3. However, the respondents have further explained the procedure followed by them. In first stage the aggregate vacancies to be filled on the basis of a particular examination are determined by the Central Government in consultation with States. These vacancies are distributed among general, SC/ST, OBC as per 200 point roster. The determined vacancies are then intimated to UPSC which notifies and recommends the candidate belonging to each category equal to the member as worked out on the basis of 200 roster. In second stage the total number of vacancies are distributed among various States on the basis of set formula. In the third stage vacancies earmarked for each cadre are divided among general, SC/ST and OBC. The distribution of vacancies as reported to the Commission is never altered. After distribution of vacancies” among various cadres the vacancies are further earmarked for insider and outsider on the basis of 30 point roster. There are two separate 30 point rosters one for total number of vacancies and another for reserved vacancies. They have further explained that with the introduction of third category namely OBC it has been decided w.e.f. Civil Services Examination 1994 (1995) batch that where an insider SC/ST, OBC candidate is not available for allocation against that insider, slot outsider SC/ST, OBC candidate is allotted with the condition that there must be an outsider vacancy for that category in that cadre.
4. The respondents have then explained that even though applicant had secured 23rd rank in the combined merit list of Civil Services Examination, 1995 and belonged to OBC but since he did not avail any of the concessions available to OBC he was recommended against general vacancy (unreserved). As per his merit he was allocated to IAS. His willingness was to be allocated to his home town Tamil Nadu cadre. Now five vacancies were to be filled in State cadre of Tamil Nadu. Out of these two were earmarked for general candidates, two for OBC and one for SC/ST. As per 30 point roster one vacancy for insider and four for outsiders and further as per 30 point roster the insider vacancy was to be filled from amongst SC/ST candidate and since insider candidate hailing from Tamil Nadu and belonging to SC category was available at rank 180, the insider vacancy was allocated to Shri A. Karthik even though he was at 10 rank. Since no insider OBC vacancy was to be filled so applicant could not be allocated Tamil Nadu inspite of being the topper in his State. Accordingly treating him as an outsider he has been allocated Gujarat cadre in accordance with the principles of cadre allocation. They have further submitted that applicant underwent the mandatory training pertaining to language, land laws etc, therefore having accepted the cadre and undergone the necessary training, applicant has no locus standi to challenge the cadre allocation now and O.A. is liable to be dismissed on this ground alone.
5. As regards the reservation Hon’ble Supreme Court has already held in Union of India v. Rajeev Yadav as under :
“….Allotment of cadre is an incidence of service. A member of an All India Service bears liability to serve in any part of India. The principles of allocation as contained in Clause 2 of the letter dated May 31, 1985, wherein preference is given to a scheduled caste/scheduled tribe candidate for allocation of his home State, do not provide for reservation of appointment or posts and as such the question of testing the said principles on the anvil of Article 16(4) of the Constitution of India does not arise. It is common knowledge that the scheduled caste/scheduled tribe candidates are normally much below in the merit list and as such are not in a position to compete with the general category candidates. The “Roster System” ensures equitable treatment of both the general candidates and the reserved categories. In compliance with the statutory requirement and in terms of Article 16(4) of the Constitution of India 22 1/2% reserved category candidates are recruited to the IAS. Having done so both the categories are to be justly distributed amongst the States. But for the “Roster System” it would be difficult rather impossible for the scheduled castes or scheduled tribes candidates to be allocated to their home States. The principles of cadre allocation, thus, ensure equitable distribution of reserved candidates amongst all the cadres.”
They have thus submitted that principles of cadre allocation have stood the test of judicial scrutiny by Hon’ble Supreme Court.
6. As regards the applicant’s claim that due to one cadre change from West Bengal to Tamil Nadu it would amount to six vacancies and the sixth vacancy should have been filled from insider and not an outsider, the respondents have explained that while allocation of cadre is done under Rule 5(1) of IAS cadre Rules, 1954 the transfer of cadre is done under Rule 5(2) which are two different channels altogether and applicant cannot claim to be allocated the Tamil Nadu cadre simply because cadre change has been allowed to a person under Rule 5(2) of aforesaid Rules. They have thus submitted that the O.A. is devoid of merit and may be dismissed.
7. We have heard both the Counsel and perused the file produced by respondents with regard to change of cadre in case of a candidate from West Bengal to Tamil Nadu to see under what circumstances was he brought to Tamil Nadu. It would be relevant to mention at the outset that since most of the points raised by applicant are already decided by one or the other judgment the Counsel for applicant had fairly stated that though he is not giving up those points but he would not like to press them here and argued only on one point which is as follows. His contention was that since in 1996 Shri Shambhu Kilolikar was allowed to change the cadre from West Bengal to Tamil Nadu the respondents had indeed filled six vacancies in 1996 and out of six vacancies two should have been filled from insider candidate on the basis 2:1 ratio as two vacancies should have gone to outsider one to insider and against two to outsider and one to insider so according to applicant this sixth vacancy should have been filled by allocating the same to the applicant and could not have gone to an outsider.
8. We have examined this argument and find there is no substance in this argument as allocation of cadre is done under Rule 5(1) of All India Service (Cadre) Rules, 1954 while transfer of an officer from one cadre to another is done under Rule 5(2) thus they are both different channels altogether and a transfer done under Rule 5(2) cannot give any right to an officer for claiming allocation under Rule 5(1) to equate himself with a transferee. Rule 5 of All India Service (Cadre) Rules, 1954 for ready reference reads as under:
5. Allocation of members to various cadres :
(1) The allocation of cadre officers to the various cadres shall be made by Central Government in consultation with the State Government or the State Government concerned. (2) The Central Government may, with the concurrence of the State Governments concerned transfer a cadre officer from one cadre to another cadre." 9. As already explained by respondent the vacancies are intimated for civil services examination to the UPSC after determining the vacancy position on the basis of 1.5% of total cadre strength in States and results are also declared as per the number of vacancies intimated to UPSC which number is never altered. Thereafter allocation of cadre is done by DOP & T as per the set norms taking into consideration the different rosters categorywise, insider, outsider and whether SC/ST or OBC or general etc.
10. Now admittedly State of Tamil Nadu had been allotted five vacancies for 1995 out of which two were earmarked for OBC, two for general and one for SC/ST further as per 30 point roster the insider vacancy was to go to SC/ST and since insider SC category candidate was available at rank 180 it was allotted to him. The applicant was not SC/ST therefore even though he was topper he could not get his home town therefore as far as allocation by respondents under Rule 5(1) is concerned, we do not find any illegality in same. The cadre allocation rules have already been upheld by the Supreme Court so we need not go into all that. However, it would be relevant to explain how Shri Kilolikar was transferred in 1996. It is just a coincidence that around the time of allocation one officer Shri Shambhu Kilolikar was allowed transfer from West Bengal cadre to Tamil Nadu cadre vide orders dated 14.9.1996, however it is important to mention here that this transfer was under Rule 5(2) (page 22) on the ground that he had married an IAS officer of Tamil Nadu cadre which is not his home State. The application itself was given by the said officer on 6.2.1996 and the transfer order was issued on 24th September, 1996 under Rule 5(2) of All India Service (Cadre) Rules, 1954, thus it is clear that this process had started i.e. much later than the Civil Service Examination, 1995 in 1996 whereas the allocation of cadre was to be done on the basis of vacancies determined in the year 1995 as Civil Services Examination took place in 1995 so naturally the cadre allocation would have to be done as per vacancies determined in 1995. By no stretch of imagination the vacancy against which cadre transfer was allowed can be termed as a vacancy of 1995. In fact the cadre transfer and cadre allowed is absolutely a different mode and cannot be compared with allocation of cadre at all as insider/outsider is determined for the purpose of Civil Service Examination, whereas transfer is a subsequent event and is permissible only on the ground of marriage that too if the officer does not belong to that State therefore, by no stretch of imagination it can be included in the vacancies determined for 1995 for State of Tamil Nadu. It is clarified in the files that determination of vacancies is not based on retirement, cadre transfer/deputation but vacancies to be filled through Civil Service Examination are determined in consultation with the concerned State and they were finalised in February, 1996 itself when Government of Tamil Nadu agreed to fill five vacancies on the basis of Civil Service Examination, 1995 therefore the Cadre allocation would be for those five vacancies only in the State of Tamil Nadu. Subsequently, if some officer has been allowed cadre transfer under Rule 5(2), the applicant cannot claim any advantage on that score to be allotted the home State. Even otherwise as stated above the cadre change is permissible on the ground of marriage only that too provided the officer does not belong to that State. In other words he should be an outsider therefore even otherwise when the transfer was permissible only for an outsider, the officer claiming to be an insider cannot claim his position. It has been clarified by the respondents that cadre transfers are not made against any vacancy that is required to be filled through Civil Services Examination therefore the transfer of cadre from West Bengal to Tamil Nadu will not give any right to the applicant as cadre transfer is not against any vacancy to be filled through Civil Service Examination. Thus we find that the contention of applicant is devoid of any merit. Even otherwise once the applicant had accepted the cadre and undergone the mandatory training also he had acquiesced to the situation therefore he cannot later turn around and say his cadre allocation is wrong. There is yet another ground for dismissing the O.A., even though the applicant has claimed that he should have been allocated Tamil Nadu cadre against the alleged sixth vacancies against which Shri Kilolikar was transferred but he has neither challenged the cadre transfer order issued in favour of Shri Kilolikar nor impleaded him as a party in the O.A. therefore, no direction can be given to the respondent to allocate Tamil Nadu Cadre to the applicant. If however applicant has some personal problems he can always make a request to the respondent as per rules if they so permit.
11. In view of the above discussion we find no merit in the O.A. The same is accordingly dismissed with no order as to costs.
