Allowed

Union of India v. Arya Sree T.

Kerala HC16 Nov 2020OP (CAT)/134/2020

Case brief

AI extract

What is this about?

This appeal challenged the Central Administrative Tribunal's order directing the Government to allot an insider vacancy in the Kerala cadre of the Indian Forest Service to a General Category candidate. The High Court upheld the Tribunal's decision, noting that the vacancy reverted to a General Category candidate after the failure of reserved category selections, without creating a precedent.

What did the court decide?

The order of the Tribunal directing the allocation of the insider vacancy to the 1st respondent to any existing or next arising vacancy in the IFS Cadre in Kerala shall be complied with.

Union of India Vs Arya Sree T. — Pension and Retirement Benefits | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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THE HONOURABLE MR. JUSTICE GOPINATH P.

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MONDAY, THE 16TH DAY OF NOVEMBER 2020 / 25TH KARTHIKA, 1942

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OP (CAT).No.134 OF 2020

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AGAINST THE ORDER IN OA 17/2019 DATED 26-09-2019 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH

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PETITIONERS/RESPONDENTS (1-3):

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1 UNION OF INDIA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF ENVIRONMENT AND FORESTS, PARYAVARAN BHAWAN, CGO COMPLEX,NEW DELHI - 110 003.

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2 UNDER SECRETARY TO THE GOVERNMENT OF INDIA MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE, PRITHVI BLOCK, JORBAG ROAD, NEW DELHI -110 003.

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3 DIRECTOR, MINISTRY OF ENVIRONMENT AND FOREST (WRONGLY SHOWN AS DIRECTOR, INDIAN FOREST SERVICE), PARYAVARAN BHAWAN, CGO COMPLEX, NEW DELHI - 110 003.

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BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA

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RESPONDENTS/PETITIONER & RESPONDENT 3 AND 4:

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1 ARYA SREE T. D/O.THRIVIKRAMAN POTTI, SREEVALSAM, N N -99, COII/304-TC, NETAJI LANE, THIRUVANANTHAPURAM -695 005.

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2 THE SECRETARY, DEPARTMENT OF PERSONNEL AND TRAINING MINISTRY OF PERSONNEL, PUBLIC GRIVANCES AND PENSION, NORTH BLOCK, NEW DELHI - 110 003.

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3 SURJITH P. NOBLE, EDAVALATH PARAMBA, EDAKKAD P.O., KOZHIKODE - 673 005.

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R, R3 BY ADV. KUM.CHITHRA P.GEORGE R3 BY ADV. SRI.K.M.GEORGE

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THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 09-11-2020, THE COURT ON 16-11-2020 DELIVERED THE FOLLOWING:

O.P.(CAT)No.134/2020

JUDGMENT

Dated this the 16^th day of November 2020

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Gopinath, J.

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Respondents 1 to 3 in O.A.No.17/2019 on the file of the Central Administrative Tribunal, Ernakulam Bench have filed this Original Petition challenging the final order dated 26.9.2019 in that Original Application. The applicant, who is the first respondent herein had filed O.A.No.17/2019 praying inter alia to quash Annexure-A12 communication through which her request for allocation to the Kerala cadre of the Indian Forest Service was rejected and for a direction to allot her to the Kerala Cadre.

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Briefly, the case of the 1^st respondent before the Tribunal was that she was selected to the Indian Forest Service (IFS) by the Union Public Service Commission through examinations conducted in the year 2016. She secured Rank No.18 amongst the list of persons found eligible for appointment to the IFS and belongs to the General Category. One Surjith P., who is the 3rd respondent herein secured Rank No.80 amongst the list of persons found eligible for appointment to the IFS and belongs to the Other Backward Community (OBC) category. During the medical examination, it was found that the 3rd respondent was unfit for appointment on the

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O.P.(CAT)No.134/2020

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ground of not meeting the minimum height requirements. Out of the three people from Kerala who qualified for IFS in that year (including the aforesaid 3rd respondent), only the 1^st respondent and one Harikrishnan P.J., who is also a General Category candidate with Rank No.53 were given letters of offer to join the IFS. On the basis of the Cadre Allocation Policy applicable in the relevant year, there was one insider vacancy (to be filled up by a candidate whose home state is Kerala) and three outsider vacancies (to be filled up by persons whose home State is not Kerala). The said insider vacancy was notified as being set apart to be filled up with a Scheduled Caste Candidate. As per the policy, if there is no Schedule Caste Candidate, it gets converted as one available for a Scheduled Tribe Candidate and, if a Scheduled Tribe Candidate is also not available, it gets converted to be filled up by an OBC candidate and still further, if no OBC candidate is available, the said vacancy is converted to be filled up by a candidate belonging to the General Category. It is the specific case of the 1^st respondent that no insider candidate was allocated to Kerala in the relevant year. This, according to the 1^st respondent was on account of the fact that the OBC candidate, who qualified in the examination, namely, the 3rd respondent, who would have otherwise obtained the insider vacancy on account of the absence of any SC/ST candidate, was found ineligible for reasons indicated earlier. The 1^st

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O.P.(CAT)No.134/2020

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respondent, therefore, claimed that in the absence of SC/ST/OBC candidates, the insider vacancy for the relevant year should have been filled up by a General Candidate and since the 1^st respondent had obtained the 18^th rank, it should have been offered to her.

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The claim as aforesaid of the 1^st respondent was opposed by the present petitioners principally on the ground that the 1^st respondent has no right to claim for inter cadre transfer from the Maharashtra cadre to which she had been allotted, to the Kerala cadre. As her allocation to the Maharashtra cadre was in accordance with the Cadre Allocation Policy of 2008, the 1^st respondent cannot be considered for allocation to Kerala. However, it was admitted that the insider vacancy available for the relevant year ought to have been filled up by the 3rd respondent but it was not so filled up and remained vacant on account of the 3rd respondent being declared unfit to hold the post on account of ‘substandard height ’.

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On a consideration of the rival contentions, the Central Administrative Tribunal allowed the Original Application filed by the 1^st respondent. It found that the respondents before the Tribunal do not dispute the fact that there was an insider vacancy in the relevant year and further that the said insider vacancy was to be allocated to the 3rd respondent who was unfortunately found unfit to hold the post on account of ‘substandard height ’. Since nobody had a case

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O.P.(CAT)No.134/2020

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that the said insider vacancy for that year had been filled up by another candidate, the Tribunal found that the 1^st respondent/applicant before the Tribunal was entitled to be accommodated against that vacancy.

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At the outset, we must notice that the challenge raised by the 3rd respondent against the rejection of his candidature was dismissed by the Tribunal through order in O.A.No.859/2017. A review application filed before the Tribunal was also dismissed. The order passed by the Tribunal was upheld by a Division Bench of this Court in O.P.(CAT)No.111/2018. The Special Leave Petition filed against the judgment of the Division Bench was also dismissed on 6.5.2019. Thereafter, a review petition as R.P.No.598/2020 in O.P. (CAT)No.111/2018 was rejected by us through judgment dated 9.9.2020.

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The learned Asst. Solicitor General appearing on behalf of the petitioners in this Original Petition would contend that the Tribunal overstepped its jurisdiction in interfering with the cadre allocation orders issued by the competent authority strictly in terms of the Cadre Allocation Policy which was applicable at that point of time. He would strenuously submit that the selected officers have no right to insist that they should be allocated to a particular cadre and since a member of the Indian Forest Service is liable to serve

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O.P.(CAT)No.134/2020

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anywhere in India, the 1^st respondent has no semblance of legal right to claim that the insider vacancy available in the relevant year must be filled up by permitting an inter cadre transfer as is sought for by the 1^st respondent. He would refer to the Cadre Allocation Policy of 2008 and submit that there was absolutely no illegality in rejecting the claim of the 1^st respondent for an inter cadre transfer to Kerala and that the Tribunal could not have interfered with the same.

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On the other hand, the learned counsel appearing for the 1^st respondent would contend that the 1^st respondent had every right to be adjusted against the insider vacancy of the relevant year as that vacancy ought to have been filled up by appointing her since in the absence of any SC/ST/OBC candidate that vacancy should have clearly reverted to a General Candidate.

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We have considered the contentions raised by either side. We are of the opinion that the Tribunal did not commit any error of law in directing that the 1^st respondent shall be accommodated against the insider vacancy of the relevant year, in the peculiar facts and circumstances of this case. This is a case where the petitioners have clearly admitted that there was an insider vacancy for IFS in Kerala during the relevant year. It is also not disputed that in the absence of any SC/ST candidate, the said vacancy was set apart for being filled up by the 3rd respondent who was an OBC candidate.

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O.P.(CAT)No.134/2020

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It is also not disputed that in the absence of SC/ST/OBC candidates, the vacancy would revert to a General candidate. The 1^st respondent is a General Candidate. The cadre allocation policy to which reference has been made by the Tribunal clearly provides that in the absence of SC/ST/OBC candidate, the vacancy would be filled up with a General Category Candidate. We do not accept the contention of the learned Assistant Solicitor General that the order of the Tribunal interferes with the cadre allocation policy of the Central Government in respect of the All India Services. On the other hand, the order of the Tribunal only directs the allocation of the 1st respondent to the insider vacancy which was admittedly available in the relevant year and which again admittedly remained unfilled on account of the non-appointment of the 3rd respondent.

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That being the position, we find no reason to interfere with the direction issued by the Central Administrative Tribunal. However, we make it clear that the order of the Tribunal and this judgment shall not be treated as a precedent. We make it clear that this decision is being rendered in the peculiar facts and circumstances of the case and on account of the fact that the candidate allocated to fill up the insider vacancy for the relevant year could not be appointed since he did not meet the prescribed height requirements. We direct that the order of the Tribunal which we have

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O.P.(CAT)No.134/2020

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affirmed shall be complied with by allocating the 1^st respondent to any existing or to the next arising insider vacancy in the IFS Cadre in Kerala. In the facts and circumstances of the case, we make no order as to costs.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

GOPINATH P.

JUDGE

acd

O.P.(CAT)No.134/2020

APPENDIX

PETITIONER'S/S EXHIBITS:

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EXHIBIT	P1	TRUE COPY OF THE OA NO.180/00017/2019 FILED BY THE PETITIONERS DATED 21/12/2018 BEFORE THE CAT, ERNAKULAM BENCH.
EXHIBIT	P1(A1)	TRUE COPY OF RANK LIST PUBLISHED BY THE INDIAN FOREST SERVICE (IFS) DATED 21/03/2017.
EXHIBIT	P1(A2)	TRUE COPY OF THE NOTIFICATION DATED 27/04/2016 OF UNION PUBLIC SERVICE COMMISSION.
EXHIBIT	P1 (A3)	TRUE COPY OF LETTER DATED 27/06/2017 ISSUED TO THE 5TH RESPONDENT BY THE MINISTRY OF ENVIRONMENT, FOREST & CLIMATE CHANGE.
EXHIBIT	P1 (A4)	TRUE COPY OF LETTER DATED 07/09/2017 ISSUED TO THE 5TH RESPONDENT BY THE MINISTRY OF ENVIRONMENT, FOREST & CLIMATE CHANGE.
EXHIBIT	P1(A5)	TRUE COPY OF LETTER DATED 19/01/2018 ISSUED TO ALL THE PRINCIPAL SECRETARIES (FOREST) OF THE CADRES/JOINT CADRES OF INDIAN FOREST SERVICE BY THE MINISTRY OF ENVIRONMENT, FOREST & CLIMATE CHANGE.
EXHIBIT	P1 (A6)	TRUE COPY OF OFFICE MEMORANDUM DATED 10/04/2008 ISSUED BY THE MINISTRY OF ENVIRONMENT, FOREST & CLIMATE CHANGE.
EXHIBIT	P1 (A7)	TRUE COPY OF OFFICE MEMORANDUM DATED 01/04/2014 ISSUED BY THE MINISTRY OF ENVIRONMENT, FOREST & CLIMATE CHANGE.
EXHIBIT	P1(A8)	TRUE COPY OF NOTIFICATION DATED 14/03/2018 ISSUED BY THE MINISTRY OF ENVIRONMENT, FOREST & CLIMATE CHANGE.
EXHIBIT	P1(A9)	TRUE COPY OF ORDER DATED 30/05/2018 ISSUED BY THE MINISTRY OF
		ENVIRONMENT, FOREST & CLIMATE CHANGE.

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O.P.(CAT)No.134/2020

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EXHIBIT P1(A10) TRUE COPY OF THE IFS CADRE ALLOCATION RULES, 1966. EXHIBIT P1(A11) TRUE COPY OF REPRESENTATION DATED 28/05/2018 SUBMITTED BY THE APPLICANT BEFORE THE UNDER SECRETARY TO THE GOVERNMENT OF INDIA MINISTRY OF ENVIRONMENT, FOREST & CLIMATE CHANGE. EXHIBIT P1(A12) TRUE COPY OF ORDER DATED 13/08/2018 ISSUED BY THE MINISTRY OF ENVIRONMENT, FOREST & CLIMATE 113TH CHANGE. EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONER IN OA NO.180/00017/2019 DATED NI. 02/2019 BEFORE THE CAT, ERNAKULAM BENCH. EXHIBIT P3 TRUE COPY OF THE MISCELLANEOUS APPLICATION IN OA NO.180/00017/2019 DATED 01/04/2019 FILED BEFORE THE CAT, ERNAKULAM BENCH. EXHIBIT P3(A13) TRUE COPY OF THE RELEVANT PAGES OF THE NOTIFICATION DATED 27/04/2016 ISSUED BY THE MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE. EXHIBIT P4 TRUE COPY OF THE REJOINDER FILED ON BEHALF OF THE APPLICANT IN OA 180/00017/2019 DATED 08/07/2019 BEFORE THE CAT, ERNAKULAM BENCH. EXHIBIT P4(A14) TRUE COPY OF THE FREQUENTLY ASKED QUESTION GIVEN IN THE DOPT WEB SITE. EXHIBIT P4(A15) TRUE COPY OF THE PAGE NO.53 OF F.NO.17015/02/2016-IFS.II. EXHIBIT P4(A16) TRUE COPY OF THE JUDGMENT DATED 20/06/2018 N OP(CAT) NO.111 OF 2018. EXHIBIT P4(A17) TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT IN SLP NO.1340/2019. EXHIBIT P5 TRUE COPY OF THE REPLY STATEMENT FILED BY 2ND RESPONDENT HEREIN/5TH

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O.P.(CAT)No.134/2020

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RESPONDENT IN THE OA 180/00017/2019 DATED 07/07/2019.

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EXHIBIT P5(A)	TRUE COPY OF THE GAZETTE NOTIFICATION NO.58 DATED 19/02/2019 F.NO.17011/01/2019-IFS-II SHOWING THAT HEIGHT IS REDUCED FROM 163 CMS. TO 150CMS. THROUGHOUT THE COUNTRY.
EXHIBIT P5(B)	TRUE COPY OF THE REPRESENTATION DATED 20/05/2019 FILED BEFORE THE MINISTRY OF FOREST, ENVIRONMENT AND CLIMATE CHANGE.
EXHIBIT P5(C)	TRUE COPY OF THE REPRESENTATION DATED 20/06/2019 FILED BEFORE THE MINISTER OF FORESTS, ENVIRONMENT AND CLIMATE CHANGE.
EXHIBIT P6	TRUE COPY OF THE ORDER IN OA 180/00017/2019 DATED 26/09/2019 ISSUED BY THE CAT, ERNAKULAM BENCH.
EXHIBIT P7	TRUE COPY OF THE CADRE ALLOCATION POLICY, 2008 DATED 10/04/2008 (OFFICE MEMORANDUM NO.13011/22/2005-AIS(I).
EXHIBIT P8	TRUE COPY OF THE OFFICE MEMORANDUM NO.13013/3/2012-AIS-I(PT.) DATED 01/04/2014 ISSUED BY DOP & T.
EXHIBIT P9	TRUE COPY OF THE OFFICIAL LIST OF CANDIDATES ALONG WITH THEIR RANKS AND A COPY OF THE NOTIFICATION F.NO.17015/02/2016-IFS-II.
EXHIBIT P10	TRUE COPY OF THE LETTER NO.17017/01/2017-IFS-II DATED 07/09/2017.
EXHIBIT P11	TRUE COPY OF FINAL DISTRIBUTION OF VACANCIES FOR THE INDIAN FOREST SERVICE FOR THE YEAR 2016.

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RESPONDENT'S/S EXHIBITS: EXHIBIT-R2(a) TRUE PHOTOCOPY OF THE ORDER DATED 0605-2019 OF THE HONBLE SUPREME COURT IN SLP NO.11340/2019 FILED BY THE RESPONDENT.

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O.P.(CAT)No.134/2020

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EXHIBIT-R2(b) TRUE PHOTOCOPY OF THE REPRESENTATION DATED 1.6.2020 FILED BY THE 2ND RESPONDENT BEFORE THE HONBLE MINISTER FOR ENVIRONMENT, FOREST AND CLIMATE CHANGE.

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EXHIBIT-R2(c) TRUE PHOTOCOPY OF THE MEDICAL REPORT OBTAINED UNDER THE RTI ACT.

Union of India v. Arya Sree T.

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Union of India v. Arya Sree T.

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