Union of India Vs. Mhathung Kithan, Kumari Bindhyeshwari Negi and Others - Court Judgment

Excerpt:
service - appointment - appeal against order of tribunal directing appellant-union of india to consider transfer of respondent no.1 from haryana cadre to nagaland cadre - allotment of cadre is incidence of service - member of all india services bears responsibility to serve in any part of india - no rule shown which provides for carry-over of insider vacancies if they are not filled due to non-availability of insider candidates - in absence of any such rule respondent no. 1 cannot be accommodated in vacancies which are earmarked for outsiders as per relevant roster points - order of tribunal set aside - appeal allowed. - [s.r. das, c.j.; jagannadhadas,; b.p. sinha,; jafer imam and; venkatarama ayyar, jj.] section 57, of the bombay police act, 1951 provides that if a person has been convicted of certain offences detailed therein, "the commissioner, the district magistrate or the sub-divisional magistrate specially empowered by the state government in this behalf, if he has reason to believe that such person is likely again to engage himself in the commission of an offence similar to that for which he was convicted, may direct such person to remove himself outside the area within the local limits of his jurisdiction, by such route and within such time as the said officer may prescribe and not to enter or return to the area from which he was directed to remove himself". under the provisions of the said section an order of externment was passed against the petitioner who challenged the order on the grounds that s. 57 contravened clauses (d) and (e) of article 19(1) of the constitution, that the provisions of the said section imposed unreasonable restrictions on the petitioner's fundamental rights of free movement and residence and that the order passed against him was illegal inasmuch as it was based on vague allegations and inadmissible material. hold, per s. r. das c.j., venkatarama ayyar, b. p. sinha and jafer imam jj. (jagannadhadas j. dissenting) (1) section 57 of the bombay police act, 1951 is not uncon- stitutional, because, it is an instance of the state taking preventive measures in the interests of the public and for safeguarding individual rights, by preventing a person, who has been proved to be a criminal from acting in a way which may be a repetition of his criminal propensities, and the restrictions that it imposes on the individual's right to reside in and move freely in any part of india are reasonable within the meaning of clause (5) of art. 19 of the constitution. (2) the restrictions cannot be said to be unreasonable on the ground that the person dealt with under s. 57 of the act may be directed to remove himself altogether outside the limits of the state of bombay as the act extends to the whole of the state, because, unless the person makes himself so obnoxious as to render his presence in every part of the state a menace to public peace and safety, every district authority would not think of acting in the same way in respect of the same person. (3)it cannot be laid down as a universal rule that unless there isa provision for an advisory board which could scrutinise the material on which the officers or authority contemplated by s. 57 had taken action against a person, such a legislation would be unconstitutional. (4) the provisions in ss. 55, 56, 57 and 59 of the act are not invalid on the ground that only the general nature of the material allegations against the person externed are required to be disclosed and that it would be difficult for him to get the matter judicially examined. the provisions are intended to be used in special cases requiring special treatment, that is, cases which cannot be dealt with under the preventive sections of the code of criminal procedure. (5)the legality of the order of externment cannot be im- pugned on the ground that there was not sufficient evidence to bring the charge home to the petitioner, because these are all matters which cannot be examined by this court in an objective way, when the legislature has provided for the subjective satisfaction of the authorities or officers who have been entrusted with the duty of enforcing the special provisions of the act. gurbachan singh v. the state of bombay ([1952] s.c.r. 737), followed. per jagannadhadas j:-section 57 of the act is constitu- tionally invalid because: (1)clause (a) of s. 57 of the act not being confined to off" serious in their nature or with reference to the attendant circumstances within the chapters specified therein, prevention of the repetition thereof cannot be considered a reasonable restriction. it is in excess of what may be considered justifiable. (2)the previous commission of an offence of the category specified, without any reference to the time, environment and other factors has no rational relation to the criterion of "reasonableness in the interest of public". (3)the exercise of the power not being limited by the consideration of non-availability of witnesses is also not rationally related to the criterion of "reasonableness in the interest of the public".ordermrs. sujata v. manohar, j.1. leave granted in both the special leave petitions.civil appeal no. 12310/96 (@ s.l.p. (c) no. 13705/95)2. respondent no. 1 appeared in the civil service examination conducted by the union public service commission in the year 1985. he was selected for appointment to the indian administrative service in the 1986 batch. the home state of respondent no. 1 is nagaland and he gave his preference for allocation to his home state cadre. there were two seats which were available for allocation to nagaland. both these seats were earmarked for outsiders as per the 30 point roster. hence the first respondent was allocated to the state of haryana. he challenged this allocation by filing an application before the chandigarh bench of the central administrative tribunal. the tribunal has allowed the application and directed the appellant-union of india to consider the transfer of respondent no. 1 from the haryana cadre to the nagaland cadre in the manner set out in the order. the present appeal is from the order of the tribunal3. under rule 5 of the cadre rules it is provided as follows: 5. allocation of members to various cadres 5(1). the allocation of cadre officers to the various cadres shall be made by the central government in consultation with the state government or the state governments concerned5(2) the central government may, with the concurrence of the state governments concerned transfer a cadre officer from one cadre to another cadre4. rule 5 was construed by this court in the case of union of india v. rajiv yadav, ias : (1994)6scc38 . it has held that a selected candidate has a right to be considered 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 incidence of service; and a member of an all india service bears liability to serve in any part of india. respondent no. 1, therefore, had no right to be allocated to a cadre of his choice5. under a policy decision conveyed by the govt. of india, department of personnel and training to the chief secretaries of all states by a letter dated 30th july, 1984, it was decided that for various reasons set out therein, in order to have a proper balance in the state cadre, the 'outsider' element in the direct recruitment quota was raised to 66.2/3%or intheratio2:1 as between outsiders and insiders in place of 1 : 1. the letter states: it is proposed to give effect to this decision by ensuring henceforth at the time of allocating candidates appointed to i.a.s. and i.p.s. on the basis of civil service examination, that at least 66.2/3% of the officers are from outside the state concerned(underlining ours)6. in the light of this policy a continuous 30 point roster was provided starting from the examination held in 1983. the roster follows the cycle, 'outsider, insider, outsider, outsider, insider, outsider....'. in any given year the roster starts with the point where the roster ended in the previous year. in the case of the state cadre for the state of nagaland there were two vacancies for allocation to the batch which had passed the examination in the year 1985. as per the 30 point roster,'both these vacancies were for outsiders. hence the first respondent, who belonged to the state of nagaland, being an 'insider', was not eligible for either of the two vacancies. he was, therefore, allotted to the state of haryana. 7. the first respondent has contended that in the batch passing the examination in 1984, when the vacancy was for an insider, no insider was available and the vacancy had been occupied by an outsider. hence he should be considered for one of the roster points available for the batch of 1985. we have, however, not been shown any rule which provides for a carry-over of 'insider' vacancies if they are not filled due to non-avail ability of insider candidates. in the absence of any such rule for carry-forward of insider vacancies, we do not see how the first respondent can be accommodated in the vacancies which are ear marked for outsiders as per the relevant roster points8. in the policy statement of 30th july, 1984, a reference was made to the fact that state service officers who get promoted to i.a.s./i.p.s. are in the age group of 40 to 50 and at that late stage, their transfer to another state cadre may give rise to personnel and administrative problems of adjustment. therefore, in order to restore the outsider-insider balance in a state cadre, it was proposed that the outsider element in the direct recruitment quota required to be increased. in this context it is difficult to accept the contention of the first respondent regarding carry-forward of 'insider' vacancies. the roster is framed bearing in mind this requirement of increasing outsiders in the quota of direct recruits. the policy re quires that at least 66.2/3% of the officers who are directly recruited are from outside the state concerned. it does not impose a ceiling of 66.2/3%. the tribunal was, therefore, not right in disturbing the implementation of this policy as per the roster9. the appeal is, therefore, allowed with costs. the order of the tribunal is set aside and the application of the first respondent is dismissed10. in view of the above decision, civil appeal no. 12325/96 (@ slp (c) no. 21429/93) is also allowed with costs since the facts are similar to the facts in the above civil appeal.

Judgment:
ORDER

Mrs. Sujata V. Manohar, J.

1. Leave granted in both the special leave petitions.

Civil Appeal No. 12310/96 (@ S.L.P. (C)

No. 13705/95)

2. Respondent No. 1 appeared in the Civil Service Examination conducted by the Union Public Service Commission in the year 1985. He was selected for appointment to the Indian Administrative Service in the 1986 batch. The home State of respondent No. 1 is Nagaland and he gave his preference for allocation to his home State cadre. There were two seats which were available for allocation to Nagaland. Both these seats were earmarked for outsiders as per the 30 point roster. Hence the first respondent was allocated to the State of Haryana. He challenged this allocation by filing an application before the Chandigarh Bench of the Central Administrative Tribunal. The Tribunal has allowed the application and directed the appellant-Union of India to consider the transfer of respondent No. 1 from the Haryana cadre to the Nagaland cadre in the manner set out in the order. The present appeal is from the order of the Tribunal

3. Under Rule 5 of the Cadre Rules it is provided as follows:

5. Allocation of members to various cadres 5(1). The allocation of cadre officers to the various cadres shall be made by the Central Government in consultation with the State Government or the State Governments concerned

5(2) The Central Government may, with the concurrence of the State Governments concerned transfer a cadre officer from one cadre to another cadre

4. Rule 5 was construed by this Court in the case of Union of India v. Rajiv Yadav, IAS : (1994)6SCC38 . It has held that a selected candidate has a right to be considered 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 incidence of service; and a member of an All India Service bears liability to serve in any part of India. Respondent No. 1, therefore, had no right to be allocated to a cadre of his choice

5. Under a policy decision conveyed by the Govt. of India, Department of Personnel and Training to the Chief Secretaries of all States by a letter dated 30th July, 1984, it was decided that for various reasons set out therein, in order to have a proper balance in the State cadre, the 'outsider' element in the direct recruitment quota was raised to 66.2/3%or intheratio2:1 as between outsiders and insiders in place of 1 : 1. The letter states:

It is proposed to give effect to this decision by ensuring henceforth at the time of allocating candidates appointed to I.A.S. and I.P.S. on the basis of Civil Service Examination, that at least 66.2/3% of the officers are from outside the State concerned

(Underlining ours)

6. In the light of this policy a continuous 30 point roster was provided starting from the examination held in 1983. The roster follows the cycle, 'outsider, insider, outsider, outsider, insider, outsider....'. In any given year the roster starts with the point where the roster ended in the previous year. In the case of the State cadre for the State of Nagaland there were two vacancies for allocation to the batch which had passed the examination in the year 1985. As per the 30 point roster,'both these vacancies were for outsiders. Hence the first respondent, who belonged to the State of Nagaland, being an 'insider', was not eligible for either of the two vacancies. He was, therefore, allotted to the State of Haryana.

7. The first respondent has contended that in the batch passing the examination in 1984, when the vacancy was for an insider, no insider was available and the vacancy had been occupied by an outsider. Hence he should be considered for one of the roster points available for the batch of 1985. We have, however, not been shown any rule which provides for a carry-over of 'insider' vacancies if they are not filled due to non-avail ability of insider candidates. In the absence of any such rule for carry-forward of insider vacancies, we do not see how the first respondent can be accommodated in the vacancies which are ear marked for outsiders as per the relevant roster points

8. In the policy statement of 30th July, 1984, a reference was made to the fact that State service officers who get promoted to I.A.S./I.P.S. are in the age group of 40 to 50 and at that late stage, their transfer to another State cadre may give rise to personnel and administrative problems of adjustment. Therefore, in order to restore the outsider-insider balance in a State cadre, it was proposed that the outsider element in the direct recruitment quota required to be increased. In this context it is difficult to accept the contention of the first respondent regarding carry-forward of 'insider' vacancies. The roster is framed bearing in mind this requirement of increasing outsiders in the quota of Direct Recruits. The policy re quires that at least 66.2/3% of the officers who are directly recruited are from outside the State concerned. It does not impose a ceiling of 66.2/3%. The Tribunal was, therefore, not right in disturbing the implementation of this policy as per the roster

9. The appeal is, therefore, allowed with costs. The order of the Tribunal is set aside and the application of the first respondent is dismissed

10. In view of the above decision, Civil Appeal No. 12325/96 (@ SLP (C) No. 21429/93) is also allowed with costs since the facts are similar to the facts in the above Civil Appeal.