JUDGMENT : P.R. Ramachandra Menon, J. Ext.P1 order passed by the Central Administrative Tribunal, Ernakulam in O.A.No.164 of 2008 is under challenge in both these writ petitions, though the nature of grievance is different. The first case-W.P.(C)No.30460 of 2009 is filed by the Union of India/Department, to the extent the first respondent (petitioner in the other case) has been directed to be allotted and accommodated against the Outsider-OBC vacancy slot in the Maharashtra cadre by virtue of her better merits over the candidate already identified and allotted. The challenge in the other petition (W.P.(C)No.9568 of 2010 filed by the applicant) is against non-granting of relief for being allocated to the Kerala cadre by virtue of her merit position and the actual number of vacancies available. 2. The main contention raised by the applicant is that determination of vacancies and allocation in the State cadre has been effected by the competent authority without effecting any consultation with the State Government as clearly stipulated under Rule 4(2) of the Indian Administrative Service (Recruitment) Rules 1954 and Rule 5(1) of the Indian Administrative Service (Cadre) Rules, 1954. It is further pointed out that allocation already effected is highly arbitrary and contrary to the actual facts and figures, without any regard to the existing deficit pointed out by the State concerned; whereas the exercise done by the said authority in respect of some States like Bihar, Andhra Pradesh etc., is by allocating candidates much more than the deficit gap pointed out and even beyond the requisition made by the State, thus making the process illegal, improper, irregular and illogical in all respects. 3. W.P(C)No. 30460 of 2009 filed by the Government is taken as the lead case . The parties and proceedings are referred to as given in the said writ petition, except where it is separately mentioned, depending upon the context. 4. The field of recruitment to the I.A.S. is mainly governed by 'the Indian Administrative Service (Recruitment) Rules 1954'. Rule 4(2) of the said Rules provides, inter-alia, that the requirement as to the number of persons for any State Cadre shall be determined on each occasion by the Central Government in consultation with the State Government concerned and the Union Public Service Commission. Rule 4(2) of the said Rules provides, inter-alia, that the requirement as to the number of persons for any State Cadre shall be determined on each occasion by the Central Government in consultation with the State Government concerned and the Union Public Service Commission. By virtue of the power under Rule 7 of the aforesaid Rules, the Government has framed 'the Indian Administrative Service (Appointment by Competitive Examination)Regulations, 1955', which enables appointment/allotment against the 'available vacancies', i.e., the vacancies in the service as determined under sub-rule (2) of Rule 4 of the Recruitment Rules. Regulation No.8 (Indian Administrative Service (Appointment by Competitive Examination) Regulations, 1955 provides for appointment from the List, as against the available vacancies mentioned above. The Government has also framed 'Indian Administrative Service (Cadre)Rules, 1954'; Rule 5 of which provides, inter alia, that allotment of officers to various cadres shall be made by the Central Government in consultation with the State Government concerned, which means that such allotment can be made only after ascertaining the available vacancies. 5. The Central Government, as per Annexure- A1 letter dated 30.07.1984 of the Dept. of Personnel and Training, Ministry of P.G. & Pensions, New Delhi, conveyed the decision of the Government taken as a matter of policy to all the State Governments that, in order to ensure better Center-State Co- ordination and to promote national integration, the allotment to different State cadres has to be effected by enhancing the 'Outsider and Insider ratio' (in respect of Direct recruits to the IAS and IPS) by raising the same from 1:1 to 2:1. Accordingly, 2/3rd of the allotments in respect of the State cadre is being effected by appointing 'Outsiders' and 1/3rd is earmarked to 'Insiders', which has to be done, giving effect to the reservation norms. Annexure A3 'Details of procedure', followed in the allotment of cadre to the officers of the All India Service, (as published by the Ministry of Personnel and Training, Administrative Reforms and Public Grievances and Pensions, Govt. of India) provides as per paragraph 13 therein, that in the case of reserved categories, separate charts are to be prepared for OBC and SC/ST candidates. of India) provides as per paragraph 13 therein, that in the case of reserved categories, separate charts are to be prepared for OBC and SC/ST candidates. Paragraph 14 therein deals with the procedure to be followed in the manner of allotment, stipulating that "in the case of candidates belonging to reserved category, such of those candidates who are recommended for appointment against unreserved vacancy and get allocated to the service against unreserved vacancy are given the benefit of reservation, if they get their Home State as reserved candidates". In Paragraph 4(vii) of Annexure A2 letter dated 30/31 May, 1985, the broad principles of allocation on the basis of Roster system have been stated, which is to the effect that "in the case of candidates belonging to reserved category, such of those candidates, whose position in the merit list is such that, they could have been appointed to the service even in the absence of any reservation, will be treated on par with general candidates for the purposes of allotment, though they will be counted against reserved vacancies". 6. In the light of the policy reflected from Annexures A1 and A2, a continuous 30 Point Roster' has to be maintained, starting from the Combined Examination held in 1983. By virtue of the enhanced Outsider-Insider Ratio making it 2:1, it has to be ensured that the ratio is maintained over a period of time, if not during the same allocation process, the brake up of which however should reflect that outsiders and insiders are accommodated following the cycle of "outsider-insider-outsider"; "outsider-insider-outsider" and so on. Since the quota is fixed in accordance with Rule 5 of IAS (Cadre) Rules, it has to be followed till the quota fixed is varied by way of appropriate amendment. The crux of the issue involved in the present case, with reference to the allocation has to be analysed in the above background. 7. The applicant in the O.A. belongs to Muslim community, which is an OBC. On participating in the combined examination of the year 2006, she came out successful, bagging the 20th Rank on All India Basis and with second place in the All India OBC Rank, at the same time standing first in the State-wise OBC candidates. She had expressed her desire and willingness to be allotted to the Kerala Cadre-being her home State. In the alternative, she had opted for Maharashtra cadre. She had expressed her desire and willingness to be allotted to the Kerala Cadre-being her home State. In the alternative, she had opted for Maharashtra cadre. On finalization of the process and proceedings, the competent authority considered the credentials of the 5 eligible candidates opted to Kerala Cadre. Out of the 'two' vacancies earmarked for the State, the first one was filled up by allotting a candidate by name Prasanth N., standing in front of the applicant as an 'Insider-General', by virtue of his better merit. The remaining vacancy was to be filled up by an 'outsider-reserved', which in turn was filled up by allotting Patil Ajit Bhagwatrao (having rank No.131, who belongs to OBC). There is no grievance for the applicant with regard to the said allotment. Grievance is that, despite her status as a member of OBC and was standing at rank No.2 on All India Basis, she was treated as a General candidate and allotted to Himachal Pradesh cadre (against the sole vacancy requisitioned and sanctioned), virtually denying to consider her claim by virtue of better merit as an OBC candidate to be allotted to the Maharashtra cadre, which slot was filled up by accommodating a person by name Sachindra Pratap Singh, who was placed at much lower level. It was also pointed out that the said person was having All India Rank of 26 (whereas the applicant was placed at Rank No.20). In the separate rank list prepared in respect of OBC candidates (as per the relevant norms) the applicant was excluded; whereas lesser merit candidate by name Sachindra Pratap Singh, was shown at the first place. 8. The grievance projected was that, if the applicant was not entitled to be allotted as an "Insider -General' candidate in respect of her home State (first priority), her claim, based on the rights of reservation, being a member of OBC and by virtue of higher rank ought to have been considered in respect of Maharashtra cadre (in preference to the person by name Sachindra Pratap Singh, who was also an OBC, but standing only next to the applicant). This made the applicant to approach the Tribunal by filing O.A..No.164 of 2008 with the following prayers: "i. Declare that non-providing of OBC reservation benefits to the applicant and treating her as a general candidate for the purpose of cadre allocation by the Respondents No.1 and 2 in Annexure A4 series of Cadre allocation as highly illegal, unjust, arbitrary and unconstitutional. ii. Declare that the provisions in para 4(vii) of Annexure A2 order that "in the case of candidates belonging to the reserved category such of those candidates, whose position in the merit list is such that they could have been appointed to the service even in the absence of any reservation, will be treated on par with general candidates for purpose of allotment though they will be counted against reserved vacancies" as highly illegal, unconstitutional and is violative of Articles 14,15 and 16 of the Constitution of India. iii. Declare that inaction on the part of the 3rd respondent, the State of Kerala in properly reporting the vacancies of IAS officers (Direct Recruitees) available in the State to the 1st and 2nd respondents in time which denied the allotment of the applicant in the Kerala cadre as highly illegal arbitrary and against the relevant provisions of law. iv. Direct the respondents No.1 and 2 to allot Kerala cadre to the applicant. Or Alternatively direct the respondents No.1 and 2 to allot Maharashtra cadre to the applicant. v. Call for the records leading to Annexure A2 and quash the provisions in para 4(vii) that "in the case of candidates belonging to the reserved category, such of those candidates, whose position in the merit list is such that they could have been appointed to the service even in the absence of any reservation, will be treated on par with general candidates for purpose of allotment though they will be counted against reserved vacancies." vi. To call for the records leading to Annexure A4, Annexure A4(1) and Annexure A4(2) Cadre Allocation of IAS Officers-2006 and quash to the extent it denied the OBC reservation to the applicant in cadre allotment and her allotment to the Himachal Pradesh Cadre. vii. To grant such other reliefs as may be prayed for and the court may deem fit to grant, and viii. Grant the cost of this Original Application. 9. vii. To grant such other reliefs as may be prayed for and the court may deem fit to grant, and viii. Grant the cost of this Original Application. 9. The proceedings were sought to be justified by the Central Government/Department, contending that determination of vacancies and allotment have been made strictly in conformity with the relevant norms/Rules/Regulations and that the applicant cannot be heard to contend that she is having any vested right in the matter of allotment; firstly for the reason that it is an All India Service and secondly for the reason that fixation of vacancies and allotment was made in conformity with the Rules. Reliance was placed on the law declared by the Apex Court as per the verdict passed in Union of India vs. Rajiv Yadav [ (1994) 6 SCC 38 ] holding that there is no vested right for any candidate to seek for allotment to a particular cadre and that it is not obligatory for the Government to entertain any such claim . The State Government also filed a statement, referring to the facts and figures including that there was substantial extent of deficit in the number of IAS officers allotted; that organisational requirement of the State demanded allocation of more candidates; that the State had submitted a requisition of a minimum of 7 candidates (upto a maximum of 14) and above all that for the past several years, the State was never being consulted, but for the intimation served by the Central Government as to the allotment made at their level. After hearing both the sides, the Tribunal held in paragraph 11 and 12 of Ext.P1 order, that the contention of the Department that the applicant had accepted 'Himachal Pradesh cadre' without any hesitation, was not correct in so far as the context of acceptance given by the applicant was with regard to allocation of the particular service, i.e. I.A.S and not regarding allocation of the State cadre. It was more so, in view of the contents of the letter dated 19.07.2007 issued by the DoPT, stating that "the cadre allocated will be informed in the due course". It was thereafter, that the consent of the State of Himachal Pradesh was sought for by the Central Government as per their letter dated 13.11.2007 (vide Annexure R2), in response to which, acceptance of the said State was given, as per the communication dated 17.12.2007. It was thereafter, that the consent of the State of Himachal Pradesh was sought for by the Central Government as per their letter dated 13.11.2007 (vide Annexure R2), in response to which, acceptance of the said State was given, as per the communication dated 17.12.2007. It was accordingly held that, it could not be stated that the applicant had unconditionally accepted the cadre allocation. 10. The merit involved in the said case was considered in the next paragraph. Obviously, the exercise was more confined to the 'alternate claim' of the applicant to have allotted 'Maharashtra cadre', by virtue of her better merit as an OBC candidate (over and above that of the person by name Sachindra Pratap of Uttar Pradesh, Rank No.26). It was observed that as against the 'two' vacancies ear-marked for the State of Kerala, (one Insider-General and the other one Outsider-OBC), there was no challenge from the part of the applicant. The decision of the Apex Court cited by the Union Government in Union of India vs. Rajiv Yadav [ (1994) 6 SCC 38 ] was held as not supportive to the case projected by the respondent in the O.A. Placing reliance on the verdict passed by the Apex Court in Union of India vs. Satyaprakash [ (2006)4 SCC 550 ], it was held that the applicant was having better right and merit to be considered for being allotted to Maharashtra Cadre. The observations as contained in paragraphs 16 and 17 of Ext.P1 are in the following terms: "16. When the choice of the applicant, on the basis of merit as a general candidate, for allotment to the Kerala cadre (as insider) could not fructify, the choice as the first OBC ought to have been made available to the applicant. It has been held in the case of Union of India vs. Satya Prakash [ (2006) 4 SCC 550 , as under:- 20. It has been held in the case of Union of India vs. Satya Prakash [ (2006) 4 SCC 550 , as under:- 20. If a candidate of the Scheduled Caste, the Scheduled Tribe and Other Backward Class, who has been recommended by the Commission without resorting to the relaxed standard could not get his/her own preference in the merit list, he/she can opt a preference from the reserved category and in such process the choice of preference of the reserved category recommended by resorting to the relaxed standard will be pushed further down but shall be allotted to any of the remaining service/posts in which there are vacancies after allocation of all the candidates who can be allocated to a service/post in accordance with their preference. 17. The above being the clear law laid down by the Apex Court, the same could well be pressed into service in the instant case. The applicant is still undergoing training and as such, it may not be impossible for the Government to change the cadre. All that is required is to ascertain from the respective State Government concerned and once acceptance is given, to post the applicant to that State. In fact it is seen from the communication vide Annexure A-11 that as many as 27 vacancies are available at Kerala itself. . If there is no plausible reason for not filling up the vacancies, the Union of India could well consider the case of the applicant for Kerala Allotment as well, subject to the same being within the ratio of insider-outsider, reservation percentage etc. This is left purely to the discretion of the Central Government as well as the Government of Kerala as no vested right has been hampered of the applicant by not allotting Kerala as insider. However, so far as ignoring the preference of the applicant for a particular State by virtue of her being the first amongst OBC, as an outsider , the same is illegal and the action on the part of the respondents cannot thus be legally sustained. 11. It was accordingly that the O.A. was allowed, declaring the eligibility of the applicant to be allotted against the 'Maharashtra Cadre' as an Outsider-OBC candidate, in turn giving appropriate directions to the Central Government in this regard. 11. It was accordingly that the O.A. was allowed, declaring the eligibility of the applicant to be allotted against the 'Maharashtra Cadre' as an Outsider-OBC candidate, in turn giving appropriate directions to the Central Government in this regard. This is sought to be challenged by the Central Government in W.P.(C)No.30460 of 2009, whereas the grievance of the applicant in the other writ petition filed by her is for a direction to allot her to the Kerala cadre, in view of existence of more vacancies than the extent wrongly fixed and ear-marked by the Central Government disregarding the mandatory norms/Rules to have had 'consultation' with the State Government in this regard. 12. Though the applicant had prayed for several reliefs in the O.A., particularly seeking to quash certain portions of certain orders issued by the Government, the Tribunal has observed in paragraph 18' of Ext.P1 order that such reliefs were stated as "not pressed" during the course of argument and hence they have not been dealt with. Paragraph 18 reads as follows: "18. In view of the above, the O.A. is allowed to the extent that it is declared that the applicant is entitled to prefer her choice State as an outsider as an OBC candidate and as her preference is Maharashtra, respondents are directed to consider the same and accommodate the applicant in the Maharashtra Cadre. The other reliefs quashing of certain portion of certain orders of the Government have not been pressed during the course of arguments and hence the same have not been dealt with in this case." (Emphasis is supplied). 13. There cannot be any doubt that the applicant stands on a better footing, by virtue of her credentials, than the candidate by name Sachindra Pratap Singh (having All India Rank No. 26 and OBC Rank 3). The eligibility of the applicant as an OBC candidate came to be ignored in respect of allotment to Maharashtra cadre, only by virtue of her inclusion as a General candidate (having scored higher rank and having felt no need to have any benefit of reservation) getting allotted to Himachal Pradesh cadre. The eligibility of the applicant as an OBC candidate came to be ignored in respect of allotment to Maharashtra cadre, only by virtue of her inclusion as a General candidate (having scored higher rank and having felt no need to have any benefit of reservation) getting allotted to Himachal Pradesh cadre. This was on the basis of the relevant norms/orders, which hence were sought to be quashed, particularly, since, in so far as the Maharashtra Cadre was concerned, both the applicant and the person by name Sachindra Pratap Singh were belonging to the category "Outsider-OBC" , where the merit of the applicant was better than that of the other. But since the prayers sought for to quash the relevant portions of the relevant orders of the Government were stated as not pressed during the course of arguments before the Tribunal (as noted in paragraph 18' of Ext.P1 order), the said clauses/orders remain intact and as such, no relief could have been granted to the applicant without setting aside the said orders. That apart, what will be the consequence, if the direction given by the Tribunal is implemented, i.e. whether the person by name Sachindra Pratap Singh, who is already accommodated in the Maharashtra cadre will go out from the service or whether any other identified vacancy was available in Maharashtra Cadre to have accommodated the applicant as well, is not known. If Ext.P1 order will affect the person by name Sachindra Pratap Singh in any manner, it was quite obligatory to have satisfied the fundamental principle of 'audi alteram partem' giving an opportunity of hearing to the said person as well; before passing the order. Since the applicant has not chosen to implead the person by name Sachindra Pratap Singh in the party array, despite naming him in the pleadings and proceedings and raising an alternative prayer to accommodate the applicant against the vacancy to which he was allotted, the direction given by the Tribunal without hearing the affected party is not correct or sustainable. The applicant is not entitled to get any relief in this regard. In the said circumstance, the challenge raised by the Central Government/Department against Ext.P1 order in W.P.(C)No.30460 of 2009 is liable to be sustained and Ext.P1 order cannot but be set aside. 14. The applicant is not entitled to get any relief in this regard. In the said circumstance, the challenge raised by the Central Government/Department against Ext.P1 order in W.P.(C)No.30460 of 2009 is liable to be sustained and Ext.P1 order cannot but be set aside. 14. Now comes the real issue, whether the applicant was eligible to have given the 'main relief' as sought for in the O.A., i.e., allotment as an 'Insider-General' to the home State of Kerala, if determination of the vacancies and allotment made by the Central Government was contrary to the relevant Rules/Regulations, for having not made any consultation with the State Government. 15. Rules 4(2) of the Indian Administrative Service (Recruitment) Rules, 1954 and Rule 5(1) of the Indian Administrative Service (Cadre) Rules, 1954 are extracted below for convenience of reference. "4. Method of recruitment to the service:- (1) xx xx xx (2) Subject to the provisions of these rules:- (a) the method or methods of recruitment to be adopted for the purpose of filling up any particular vacancy or vacancies as may be required to be filled during any particularly period of recruitment shall be determined by the Central Government in consultation with the Commission and the State Government concerned. (b) the number of persons to be recruited by each method shall be determined on each occasion by the Central Government in consultation with the State Government concerned. Provided that where any such vacancy or vacancies relate to a State Cadre or a Joint Cadre the State Government in consultation with the Commission. (Emphasis is supplied) "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 concerned. (Emphasis is supplied) 16. The pleadings and proceedings reveal that no definite case was putforth by the Central Government /Department to the effect that any consultation was made with the State Government before determination of the vacancies and allotment effected in accordance with the Rules. The plea raised by the Central Government was only to the extent that every year, requisition was being called for from the State Governments and that vacancies were determined based on the cadre strength already fixed, the requisition made by the State and the deficit gap. The plea raised by the Central Government was only to the extent that every year, requisition was being called for from the State Governments and that vacancies were determined based on the cadre strength already fixed, the requisition made by the State and the deficit gap. The stand taken by the Government appears to be more that there was no requirement to have had any such consultation with the State Government, but for collection of particulars as above and that fixation was being done by the competent authority/Central Government. 17. When the matter came up for consideration before another Bench of this Court (consisting of Mr. Justice Thottathil B. Radhakrishnan and Mr. Justice C.T. Ravikumar) on 14.02.2012, it was observed in paragraphs 4 and 5 as follows: "4. On a pointed issue, the Government of Kerala had clearly stated before the Tribunal through its pleadings that there was no consultation with the Government of Kerala regarding the deficit in the cadre strength in that State. UOI appears to have taken the stand that there is no such requirement for consultation in terms of the Rules. There also appears to have been some controversy as to the total available vacancies or deficit in the cadre strength to be filled up by competitive recruitment. Though the applicant has materials to show that even in the floor of the Legislature of the State of Kerala, it was said that there were 40 vacancies and there is some correspondence between the State Government and the UOI in that regard, the fact of the matter remains that UOI admits at least the existence of 5 vacancies as deficit in the cadre strength. On this basis, two persons were allotted to the Kerala State, of which one was a Keralite "insider" and the other person, OBC "outsider" (from the state of Maharashtra). Since we are not now passing final judgment, we keep aside some of the other facts. Suffice to say that the Tribunal has issued a direction for consideration of the case of the applicant for allotment against the State of Maharashtra. 5. Prima facie, we see the following salient points in this case: (a) In terms of the Indian Administrative Service (Recruitment) Rules, 1954, direct recruitment is the appointment of a person in terms of Rule 4(1)(a) of those Rules. 5. Prima facie, we see the following salient points in this case: (a) In terms of the Indian Administrative Service (Recruitment) Rules, 1954, direct recruitment is the appointment of a person in terms of Rule 4(1)(a) of those Rules. Rule 4(2) provides, inter alia, that requirement as to the number of persons for any State Cadre, shall be determined on each occasion by the Central Government in consultation with the State Government concerned and the Union Public Service Commission. (b) The Indian Administrative Service (Appointment by Competitive Examination) Regulations, 1955 framed in pursuance of Rule 7 of the aforesaid Recruitment Rules provide that the 'available vacancies' means the vacancies in the Service as determined under the provisions of sub-rule (2) of Rule 4 of the Recruitment Rules. Regulation 8 among those Regulations provides for appointment from the list. Such appointment is as against the available vacancy. (c) Now, Rule 5 of the Indian Administrative Service (Cadre) Rules, 1954, provides, inter alia, that the allotment of cadre officers to various cadres shall be made by Central Government in consultation with the State Government concerned. The allotment can, thus, be made only after ascertaining the available vacancies. This means that, in matters relating to allotment for the first time, and not in relation to transfer from cadre to cadre, the process of consultation has to be carried out. This is well laid down by the Division Bench of this Court in Union of India v. Jyothilal K.R. (2003 KHC 795), wherein after discussing the various relevant aspects, it has been categorically stated that the Central Government is bound by the provisions of Rule 5 of the (Cadre) Rules and consultation has to be had in terms of that Rule. It is held in the aforesaid precedent that the process of consultation must precede the act of allocation and it has to be necessarily an effective consultation since the process of consultation has to bring home to the UOI the status of vacancies as regards recruitment to be made to a particular State cadre. (d) It is not in dispute that in the case in hand, there was no consultation at all with the Government of Kerala. (Emphasis is supplied) 18. (d) It is not in dispute that in the case in hand, there was no consultation at all with the Government of Kerala. (Emphasis is supplied) 18. It was in the above circumstance, that this Court sought to ascertain whether the Central Government would carry out a consultation as regards the vacancy position or deficit in cadre, as relevant for the year 2006-2007, in turn directing the competent authority to file an affidavit within four weeks. Pursuant to the said direction, an affidavit dated 01.03.2012 was filed on behalf of the Central Government, pointing out that distribution of cadre-wise vacancies has been decided taking into account the factors, such as no. of Districts in the cadre, requisition from the State Government and the cadre gap. Making a reference to Rules 5(1) of the IAS (Cadre) Rules, it has been conceded by the Central Government in paragraph 5 of the said affidavit that allocation shall be made by the Central Government in consultation with the State Government; however making a vague denial as to the averment that the State Government was not consulted. But for mentioning that the State Governments were requested to send their requisition on the basis of the Combined Civil Services Examination, 2006, the process of consultation, much less any meaningful consultation, is not established by producing any communication or correspondence in this regard as to the district-wise particulars, the requisition made by the State, the cadre gap and such other relevant aspects. At the same time, though the facts and figures revealed that more posts were available in the Direct Recruitment quota, the Department decided to fill up only 89 vacancies through the Combined Civil Services Examination 2006; even as against the total requisition of 108 made by different States as given in the Table given in paragraph 5, which is reproduced below: Sl.No. Name Cadre/Joint Cadre Cadre gap as on 1.1.2007 Requisition of each State Govt. for CSE 2006 1 Andhra Pradesh 9 6 2 Assam-Meghalaya -10 5 (Assam 2, Meghalaya 3) 3 Bihar -2 6 4 Chhattisgarh -25 10 5 Gujarat -24 8 6 Haryana -8 3 7 Himachal Pradesh -5 1 8 Jammu & Kashmir 1 1 9 Jharkhand -4 1 10 Karnataka -2 7 11 Kerala -5 12/30/99 12 Madhya Pradesh -47 2 13 Maharashtra -11 8 14 Manipur-Tripura -27 3 (Manipur :0 Tripura 3) 15 Nagaland -14 3 16 Orissa -5 4 17 Punjab -7 5 18 Rajasthan 5 5 19 Sikkim -7 Not received 20 Tamil Nadu -10 2 21 UT (AGMUT) -7 5 22 Uttaranchal -7 2 23 Uttar Pradesh -33 4 24 West Bengal -28 10 108 19. A copy of the requisition made by the Govt. of Kerala (dated 29.06.2006) referring to the shortage of 11 IAS officers during the last 6 years and requesting to allot at least 7 I.A.S officers for 2006 and allot 10 IAS officers for 2007 stands produced as Ext.P8. The applicant (first respondent in W.P.(C) 30460 of 2009) filed an affidavit dated 25.03.2012 (in response to the affidavit dated 01.03.2012 of the Central Government), clearly pointing out that the specific question raised by this Court as per the interim order dated 14.02.2012 has not been answered in relation to the readiness to have consultation with the State as to the vacancy position/deficit for the relevant year (2006/2007). The specific stand of the State Government as per the pleadings raised by them before the Tribunal, that during the last several years there was no practice of Government of India asking for comments of the State Government for filling up of the Direct Recruitment quota; instead direct recruits are being allotted suo motu by Government of India, was also adverted to in paragraph 3 of the said affidavit. The cadre fixation towards direct recruitment under the Kerala Cadre as per Exhibit R1(a) Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955 issued by the Central Government was pointed out as 150'. 20. In the said circumstance, it was demonstrated that determination of the total vacancies as 89' in the Direct Recruitment quota of IAS officers through Combined Civil Service Examination-2006 was effected without any regard to the 'cadre gap' and the requisition made by the State Government, also ignoring the Rules and Regulations insisting for mandatory consultation. 20. In the said circumstance, it was demonstrated that determination of the total vacancies as 89' in the Direct Recruitment quota of IAS officers through Combined Civil Service Examination-2006 was effected without any regard to the 'cadre gap' and the requisition made by the State Government, also ignoring the Rules and Regulations insisting for mandatory consultation. The applicant also pointed out in paragraph 6' of the said affidavit that, as per Rule 4(2) of the IAS (Cadre) Rules, 1954, the Central Government had to re-examine the cadre strength and composition of each cadre at the interval of every five years, in consultation with the State Government and make alterations as it deems fit; and this being the position, in so far as Exhibit R1(a) Cadre Fixation effected for Kerala stipulates 150' as the Direct Recruitment quota and further since officers in the position/office as on 01.01.2007 were only 117, the cadre gap was very wide. That apart, even according to the Central Government, considering the cadre fixation as 124 and available officers as 119, there was still ' a cadre deficit' of 'five' officers and the State Government had submitted requisition for a 'minimum of 7'. If the 5 admitted deficit vacancies as above, were filled up by following the Outsider-Insider ratio in the given cycle of 30 point roster'; there would be an "insider" vacancy to be given, either to the SC/ST or the OBC. Since no eligible SC/ST candidate was there in the list, as per the Rules, it was to be filled up by 'Insider-OBC', in turn allotting the applicant. 21. The arbitrariness on the part of the Competent Authority/Central Government was pointed out referring to the exercise done in respect of Bihar and some other States, as given in paragraph 13 of the above affidavit, which is reproduced below: "13. A close perusal of the table in para 5 reveals the defectiveness of the same as well as the cadre allocation. For eg. There is a surplus of 9 officers in Andhra Pradesh, but two officers were allotted to the State. In Bihar, the cadre gap is 2 (deficit), requisition is for 6 officers, and the DOPT has allotted 7 officers to Bihar, in flagrant violation of the Indian Administrative Service (Fixation of Cadre Strength) Regulation. For eg. There is a surplus of 9 officers in Andhra Pradesh, but two officers were allotted to the State. In Bihar, the cadre gap is 2 (deficit), requisition is for 6 officers, and the DOPT has allotted 7 officers to Bihar, in flagrant violation of the Indian Administrative Service (Fixation of Cadre Strength) Regulation. These are some of the examples to show that DOPT arbitrarily allots officers to various State cadres without following any rules or procedure." From the above, it is clear that even though the cadre gap was only 2' in Bihar and the requisition made by the said State was only for allotting 6' officers, the DoPT was magnanimous or gracious enough to do something more by allotting 7' officers to Bihar, in flagrant violation of the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955. 22. After taking stock of the factual matrix, the Bench, of this Court, who passed the order on 14.02.2012, passed yet another order on 27.03.2012, referring to the contents of the statement filed on behalf of the State Government, as to the retirement vacancies of the year 2006; observing that Kerala was allotted only 2' IAS officers by the Central Government, though there were more vacancies and further that the State of Kerala was willing to accept the applicant in the Kerala Cadre, as already communicated to the Central Government in writing. The Bench adverted to the mandate of Rule 5 of the Indian Administrative Service (Cadre) Rules 1954, stipulating that there has to be effective consultation and the law declared by a Division Bench of this Court in Union of India v. Jyothilal K.R. (2003 KHC 795) in this regard. It was accordingly, that the Union of India was directed to consider the stand taken by the State Government as per their statement dated 26.03.2012 and to put it on record within two months. Pursuant to the above direction, an affidavit dated 31.05.2012 has been filed on behalf of the Central Government. As per the said affidavit, the Central Government has sought to project their stand, as if they have consulted with the State Government for determination of vacancies in the 'DR quota' of IAS by inviting requisitions, extract of which in respect of 'CSE 2006' was given in the form of a Table. As per the said affidavit, the Central Government has sought to project their stand, as if they have consulted with the State Government for determination of vacancies in the 'DR quota' of IAS by inviting requisitions, extract of which in respect of 'CSE 2006' was given in the form of a Table. But for repeating the verbal statistics, no material has been produced as to any consultation made by them with the State, but for calling for the requisition; or as to how the determination of vacancies as 89' was fixed by the Central Government. How the extent of allocation in respect of the State of Kerala, (when there was admitted deficit of 5') was decided or restricted to be just 2' and how in the case of Bihar (where the deficit was only 2' and the requisition was only for 6'), the allotment was made to a still higher extent of 7' has been conveniently omitted to be stated. This cannot but be held as an instance of arbitrariness, reflecting total non-application of mind resulted because of the obvious lapse in effecting consultation with the State Government as mandated under the relevant Rules/Regulations. 23. The only version put forth by the Central Government in their affidavit dated 31.05.2012 is that all the deficit vacancies cannot be filled up together. Absolutely no reason has been stated as to why it is to be so, when the scheme of the statutory prescription is to see that posts at such higher levels, which deal with the Administration and running of the Government machinery at optimum level is never to let unfilled for long. The only explanation as discernible from the paragraph 6' of the said affidavit is that it will increase the Batch size. The only explanation as discernible from the paragraph 6' of the said affidavit is that it will increase the Batch size. Relevant portion is reproduced below: "If at all the vacant posts in a particular recruitment year are decided to be filled up, the batch-size would be enormously large resulting in deterioration in quality, destruction of pyramid structure of IAS officers particularly at Senior level, stagnation and pose a problem for training of such probationers due to limited training capacity at LBSNAA." It is also contended that, if any change in cadre structure is effected at this distance of time, it will be having a cascading effect and no re-allocation is possible, adding further that similar request may come from other States/candidates, leading to unending process and resulting in un-settling the settled issues. 24. The above explanation does not appear to be palatable to this Court and it rather sounds to be puerile. It cannot be forgotten that the organisational requirement cannot remain static and it increases day by day, with increase in population and other social and economic set up. The very purpose of casting a duty to re-fix the cadre strength every 'five' years, is to ensure that the Governmental machinery is made to function, catering to the needs of the general public at optimum level, without any handicap. Instead of providing more and more man power, by increasing the cadre strength and filling up the vacancies, the officers at the helm of the affairs, if choose to leave the posts vacant, disregarding the existing cadre strength, apprehending the Batch size getting large, resulting in alleged deterioration of quality and as to the limited training facility at LBSNAA, it can never be termed as part of any policy of the State. It is the duty of the Central Government /Competent Authority to provide adequate extent of infrastructure to train the requisite number of officers and increase the Training facilities to meet the organisational requirement. Failure in this regard can only be viewed as the result of improper planning/vision or non- application of mind; if not dereliction of duty. 25. This Court is aware that it is not for this Court to interfere with the 'policy' of the State. Failure in this regard can only be viewed as the result of improper planning/vision or non- application of mind; if not dereliction of duty. 25. This Court is aware that it is not for this Court to interfere with the 'policy' of the State. But when the so called policy/exercise turns to be in clear contravention of the Rules/Regulations stipulated by the Central Government itself, it cannot be regarded as a measure of policy, but an abuse of the process. When the Rule stipulates that an act shall be done in a particular manner, it can be done only in that manner and never otherwise. This Court finds support from the ruling rendered in the celebrated verdict in 'Taylor vs. Taylor' [1875-[L.R.] 1 Ch.D 426] which was applied by the Privy Council in Nazir Ahamad vs. Emperor [ AIR 1936 PC 253 (1)] and later by the Apex Court in Rao Shiv Bahadur Singh and another vs. States of Vindh-P [ AIR 1954 SC 322 ], Deep Chand vs. State of Rajasthan [ AIR 1961 SC 1527 ] and in Competent Authority vs. Barangore Jute Factory and others [ (2005)13 SCC 477 ] and by this Court in Lakshmikutty Amma vs. Vijayalakshmikutty ( 1992 (2) KLT 341 ). In so far as the determination of vacancies has to be done in consultation with the State as stipulated under Rule 4(2) of the Cadre Rules and since allocation has to be made in terms of the Rule 5(1) of the Indian Administrative Service (Cadre) Rules, 1954 and further since the specific averment raised by the applicant that no consultation has been made with the State of Kerala in terms of the above Rules, coupled with the more categoric assertion made by the State of Kerala as per their statement/pleadings filed, that no such consultation was being made by the State Government, (but for the unilateral fixation and allotment made by the Central Government) and above all, since the Central Government has miserably failed to demonstrate the consultation stated as effected before this Court (despite the opportunity given in this regard), it does not require any second thought to hold that the exercise done by the Competent Authority/Central Government is per se wrong and illegal in all respects. 26. As mentioned already, the initial stand of the Central Government was that, no such consultation was necessary. 26. As mentioned already, the initial stand of the Central Government was that, no such consultation was necessary. When a specific finding was rendered by this Court as per the order dated 14.02.2012 (under paragraph 6), that there was no dispute that no consultation was made, the Central Government sought to take a 'U' turn and mentioned in the subsequent affidavit filed before the Court that the State was consulted, however failing to substantiate the said factum of consultation by producing any material. Calling for requisition is only for collection of data, which does not constitute 'Consultation'. It is true, that 'Consultation' does not mean 'Concurrence' of the State and the Central Government is free to determine the vacancies and effect the allotment in terms of the Rules. But the factum of having effected 'Consultation' should be discernible from the proceedings, which conspicuously is absent in the instant case. The necessity to have 'Consultation' in this regard has been made clear by a Division Bench of this Court in Union of India vs. Jyothilal and others [2003 (3) ILR (Kerala)515]. The operative portion as contained in paragraph 37 reads as follows: 37. In view of the above, it is held that : (i) xx xx xx (ii) xx xx xx (iii) xx xx xx (iv) xx xx xx (v) In the present case, the provision of rule 5 was not followed inasmuch as the order of allocation had been actually passed and communicated by the Central Government vide its letter dated, December 17, 1993. The letters for consultation with the State Government had been issued by the Central Government on February 8, 1994. The consultation had to precede the order and not follow it. It is settled that if anything is required to be done in a particular way, it must be done in that manner and no other. This rule was admittedly not followed. Thus, the action in the present case was not in conformity with the provision contained in Rule 5." We are in full conformity with the observation made therein and we hold that the proceedings finalised by the Central Government in fixing the number of vacancies and limiting the allotment just to 2' posts in respect of the year concerned is without any consultation with the State of Kerala and the proceedings are bad and not sustainable in law. 27. 27. Now comes the relief to be granted to the applicant/petitioner in W.P.(C)No.9568 of 2010. This Court finds some force in the submissions made by the learned Addl. Solicitor General, that setting aside the proceedings with regard to the determination of vacancies and allotment process for the year in question will have a cascading effect and that each and every person who is standing in the ladder, behind the applicant, may become adversely affected. Almost a decade is already over. Since there is no dispute as to the 'cadre deficit in the DR quota'(in so far as Kerala cadre is concerned) and further since the State of Kerala has expressed willingness to accept the applicant in the State Cadre, this Court is of the view that the relief can be moulded to an appropriate extent, so that no prejudice will be caused either to the Central Government or to anybody already occupying the slots concerned. Accordingly, it is declared that the petitioner in W.P.(C) 9568 of 2010 (applicant in the O.A.) will stand entitled to be allotted to the 'Kerala cadre' for the allotment year of 2007, (on a notional basis) and that she shall be accommodated against any 'existing vacancy' or 'next arising vacancy' in the Kerala Cadre under the Direct Recruitment Quota. Necessary proceedings in this regard shall be finalised by giving appropriate allotment/placement by the Competent Authority, at the earliest, at any rate, within 'two months' from the date of receipt of a copy of the judgment. 28. In the result, Ext.P1 order passed by the Tribunal is set aside. W.P.(C)No.30460 of 2009 filed by the Union of India, (challenging the direction of the Tribunal, to accommodate the petitioner in the Maharashtra cadre involving the alternative prayer in the O.A.) is allowed. W.P.(C)No.9568 of 2010 filed by the applicant and the O.A. stand allowed in respect of the 'main prayer' (for declaring and directing that the applicant is eligible to be allotted to the Kerala Cadre). No cost.