Arun R.S. vs Union Of India And Ors

L. Narasimha Reddy, J

The applicant was selected in the Indian Forest Service (IFS) on the basis of his performance in the examination conducted by the UPSC in the year 2008. He was ranked 31st in the merit list. His home State is Kerala. In the context of allocation of cadre, he opted for Kerala, Karnataka, Tamil Nadu, Uttarakhand, Himachal Pradesh, Madhya Pradesh, Rajasthan, Andhra Pradesh and Maharashtra, in that order.

Through notification dated 22.04.2010, Ministry of Environment and Forests, Government of India, allocation was made and the applicant was allotted to IFS cadre of Manipur-Tripura. Taking objection to the same, the applicant filed a representation to the respondents. The respondents issued communication dated 09.11.2011 stating that the request made by the applicant for change of cadre cannot be considered at that juncture. Challenging the said communication, the applicant filed this OA.

It is stated that the 200-point running vacancy based roster for the IFS cadre for the state of Kerala was not prepared by the time the allocation was made, and had it been made, quite a good number of vacancies would have been available for allocation of candidates who are natives of the same State, including the applicant.

It is also pleaded that all the three vacancies available in the cadre of Kerala were filled only by outsider candidates, in clear violation of the principle of two outsiders and one insider.

The respondents filed counter affidavit opposing the OA. It is stated that the 200-point running vacancy based roster was prepared much prior to the selections and appointments in question, and there is no merit in the contention of the applicant. As regards, the allocation of candidates against three vacancies for the State of Kerala, it is stated that since no insider OBC candidate was available, all the three vacancies were filled with outsider candidates. An objection is also raised about limitation.

The private respondents were also impleaded in the OA. Some of the private respondents have filed their counter affidavits. They contend that the allocation made in their favour cannot be disturbed at this stage, and virtually repeated the grounds urged on behalf of the Union of India.

We heard Shri Ajesh Luthra, learned counsel for the applicant and Ms. Aishwarya Dobhal for Shri Hilal Haider and Shri Vidya Sagar for Shri H. K. Gangwani, learned counsel for the respondents.

At the outset, the objection about limitation raised by the respondents needs to be considered. The record discloses that soon after the allocation was made, the applicant made a representation ventilating his grievance, and reply thereof was given on 09.11.2011. The OA was filed without any loss of time thereafter. We are convinced that the OA is filed within the period of limitation.

Coming to the merits of the OA, we are not at all impressed by the contention advanced by the applicant about the preparation of 200-point running vacancy based roster. No material, worth its name, is placed before us in that context. The statement made by the Government that the exercise in that behalf was completed in the earlier years itself, remains unrebutted.

As regards, the year in question, three vacancies were available in the IFS cadre for the State of Kerala. It is not in dispute that the guidelines issued by the DoP&T from time to time mandate that the ratio of allocation to the State cadre shall be 2:1 between outsiders and insider respectively. On this basis, the allocation should have been of two outsiders and one insider. Admittedly, this was not adhered to. In the counter affidavit filed on behalf of respondent Nos.1 to 3, the only statement made in this behalf is as under:-

"1. The allocation of vacancies worked out by the Ministry with Respect to the cadre allotment in 2008, show that there were three vacancies in 2008 in the Kerala cadre. As per DoP&T guidelines regarding reservation of vacancies, two vacancies were earmarked for OBC outsider. There was no insider OBC vacancy for the year. Thus, the applicant is not eligible for the allotment to the Kerala cadre of Indian Forest Service."

Barring this cryptic statement, no details are furnished. It was not even mentioned, much less demonstrated that the insider vacancy was earmarked for OBC. Such reservation is said to be as regards two outsider vacancies. The applicant is a general category candidate. No rule or notification which enables such a diversion of insider vacancy to outsiders, is cited.

The record discloses that the available candidates were not sufficient to fill the vacancies for that year, and accordingly some posts were kept vacant in the cadres of certain States. That being the case, there was no basis to fill all the three vacancies in the Kerala cadre with outsider candidates alone. This anomaly needs to be addressed.

One aspect which has to be taken into account is that there are some candidates belonging to Kerala in the select list of the year, who are more meritorious than the applicant. They deserve to be given opportunity in the context of filling the insider vacancy for that year. Therefore, even while the Tribunal is prepared to accept the contention that the filling up of vacancies earmarked for insider through an outsider was not proper, the direction cannot be given to fill that vacancy through the applicant alone.

Another aspect is that if the rules, or the relevant notifications or memoranda issued by DoP&T permit, the insider vacancy filled with outsider can be replenished in the next available recruitment by allotting one more insider vacancy in the Kerala Cadre. In such an event, the eligible insider candidate of the select list can be accommodated against the vacancy so allocated in the subsequent recruitment, duly protecting his seniority and making him or her part of the IFS cadre of the State, and assigning appropriate place in the seniority list. This will avoid the replacement of the outsider who was improperly appointed against the insider vacancy during the earlier recruitment, and the cascading effect thereof in other cadres. This however is purely optional for the respondents.

Therefore, the OA is allowed, and -

(a) the allocation of outsider candidate against the one of the vacancies of IFS Cadre of Kerala State through order dated 22.04.2010, is set aside;

(b) the respondent Nos.1 to 3 shall identify the vacancy that was otherwise to be filled by insider, and the insider candidate who was entitled to be posted against that;

(c) if it is otherwise permissible in law, the exercise indicated in para 14 shall be undertaken;

(d) if that alternative is not possible, the outsider candidate who was appointed against the insider vacancy of the year shall be shifted to the cadre, which he was otherwise entitled to, and the fact that all the vacancies available in that year were not filled shall be taken into account;

(e) the exercise in this behalf shall be completed within a period of four months from the date of receipt of copy of this order.

There shall be no order as to costs.