REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2651-52 OF 2010
(Arising out of SLP(C) No.6758-6759/2009)
Union of India & Another ..Appellant(s)
Versus
Hemraj Singh Chauhan & Others ..Respondent(s)
J U D G M E N T
GANGULY, J.
1. Leave granted.
2. In SLP (C) Nos.6758-6759/2009, Union of India and
the Secretary, Union Public Service Commission are
in appeal impugning the judgment and order dated
14.11.2008 delivered by the Delhi High Court on
the writ petition filed by Hemraj Singh Chauhan
and Ramnawal Singh, the respondents herein.
1
3. The respondents are members of the State Civil
Service (S.C.S.) of the State of Uttar Pradesh and
according to them completed eight years of service
on 23.07.85 and 4.6.86 respectively. The
contention of the respondents is that in terms of
Regulation 5(3) of the Indian Administrative
Service (Appointment by Promotion) Regulations,
1955, a member of the S.C.S., who has attained the
age of 54 years on the 1st day of January of the
year in which the Committee meets, shall be
considered by the Committee, provided he was
eligible for such consideration on the 1st day of
the year or of any of the years immediately
preceding the year in which such meeting is held,
but could not be considered as no meeting of the
Committee was held during such preceding year or
years.
4. Those regulations have been framed in exercise of
power under Sub-Rule 1 of Rule 8 of Indian
Administrative Service Recruitment Rules, 1954 and
2
in consultation with the State Government and the
Union Public Service Commission.
5. Regulation 5 (1) of the said Regulation provides
that such Committee shall ordinarily meet every
year and prepare a list of such members of the
S.C.S. as are held to be suitable for promotion
to the service. The number of members of the said
civil services to be included in this list shall
be determined by the Central Government in
consultation with the State Government concerned
but shall not exceed the number of substantive
vacancies in the year in which such meeting is
held.
6. It may be mentioned in this connection that as a
result of bifurcation of the State of Uttar
Pradesh as a result of creation of the State of
Uttaranchal in terms of the State Reorganization
Act, namely Uttar Pradesh State Reorganization Act
2000, two notifications were issued on 21.10.2000.
The first was issued under Section 3(1) of the All
India Services Act, 1951 read with Section 72 (2)
3
and (3) of the Reorganization Act and Rule 4 (2)
of the Indian Administrative Service (Fixation of
Cadre Strength) Regulations, 1956 (hereinafter
referred to as the “Cadre Rule”).
7. Thus, the Central Government constituted for the
State of Uttaranchal an Indian Administrative
Service Cadre with effect from 1.11.2000. On
21.10.2000 another notification was issued fixing
the cadre strength of State of Uttar Pradesh
thereby determining the number of senior posts in
the State of Uttar Pradesh as 253.
8. The case of the appellants is that the next cadre
review for the State of Uttar Pradesh fell due on
30th April, 2003. To that effect a letter dated
23.1.2003 was written by the Additional Secretary
in the Department of Personnel and Training,
Ministry of Personnel, Public Grievances and
Pensions, Government of India to the Chief
Secretary, Government of Uttar Pradesh.
4
9. The further case of the appellants is that
several reminders were sent on 5th March, 3rd
September, 17th September and 8th December, 2003 but
unfortunately the Government of Uttar Pradesh did
not respond. Then a further reminder was sent by
the Government of India stating therein that four
requests were made for the cadre review of the
I.A.S. cadre of Uttar Pradesh but no response was
received from the Government of Uttar Pradesh. In
the said letter the Government of India wanted
suitable direction from the concerned officials so
that they can furnish the cadre review proposal by
28.2.04. Unfortunately, there was no response and
thereafter subsequent reminders were also sent by
the Government of India on 14th/17th June, 2004 and
8th October, 2004.
10. Ultimately, a proposal was received from the
Government of Uttar Pradesh only in the month of
January 2005 and immediately preliminary meeting
was fixed on 21st February, 2005. Thereafter, a
cadre review meeting was held under the
Chairmanship of the Cabinet Secretary on 20th
5
April, 2005 and the Minutes duly signed by the
Chief Secretary, Government of Uttar Pradesh were
received by the appellants on 27th June, 2005.
After approval was given to the said Minutes,
notification was issued on 25th August, 2005 re-
fixing the cadre strength in the State of Uttar
Pradesh.
11. Challenging the said notification, the respondents
herein approached Central Administrative Tribunal,
Principal Bench, New Delhi (hereinafter referred
to as C.A.T.) by filing two O.As, namely, O.A.
No.1097/2006 and O.A. No.1137/2006 praying for
quashing of the said notification. The
respondents also prayed for setting aside the
order dated 1.2.2006 whereby vacancies were
increased as a result of the said cadre review
adding to the then existing vacancies for the year
2006.
12. In those O.As the substance of the contention of
the respondents was that the last cadre review of
the I.A.S. in Uttar Pradesh cadre was conducted in
6
1998 and the next cadre review was therefore due
in April 2003. As such it was contended that the
cadre review which was conducted in August 2005
should have been given effect from April 2003 so
that the respondents could be considered for
promotion against the promotion quota.
13. The stand of the State of Uttar Pradesh before
C.A.T. was that with the issuance of notification
issued by the Department of Personnel and Training
on 21.10.2000 bifurcating cadre of undivided Uttar
Pradesh to I.A.S. Uttar Pradesh and I.A.S.
Uttaranchal upon the Uttar Pradesh Reorganization
Act, cadre review has already taken place and as
such the next review was due in 2005 only.
14. The stand of the appellants both before the C.A.T.
and before the High Court was that the cadre
review was due in 2003. However, the C.A.T. after
hearing the parties upheld the contention of the
State of Uttar Pradesh and held that the cadre
review carried out in 2005 cannot be given
retrospective effect. The Tribunal dismissed O.A.
7
No.1097/06 and partially allowed O.A. No.1137/06,
inter alia, directing the respondents to convene
the meeting of D.P.C. Selection Committee to fill-
up the posts which were not filled up in the year
2001, 2002 and 2004 and to consider all eligible
S.C.S. Officers in the zone of consideration
including the officers who were put in the select
list of those years but could not be appointed in
the absence of integrity certificate.
15. However, the respondents being aggrieved by the
judgment of the C.A.T. filed a writ petition
before the Hon’ble High Court on 18.12.2006
contending therein that the cadre review of the
I.A.S. of Uttar Pradesh cadre was due in 2003 and
was delayed by the State of Uttar Pradesh as a
result of which some of the S.C.S. Officers were
deprived of their promotion to the I.A.S. Their
specific stand in the writ petition was if the
increased vacancies were available in 2004 as a
result of the cadre review in 2003, they could
have been promoted to I.A.S.
8
16. However, before the High Court the stand of the
Central Government was that the cadre review of
the I.A.S. of Uttar Pradesh was due in 2003 but
unfortunately it was held in 2005 when State of
Uttar Pradesh had sent its proposal. Such review
was made effective from 25.8.2005 when the revised
cadre strength of the I.A.S. cadre of Uttar
Pradesh was notified in the official Gazette in
terms of the statutory provisions. The further
stand of the appellants was that the cadre review
undertaken in 2005 cannot be given retrospective
effect.
17. However, before the High Court the stand of the
Uttar Pradesh Government was slightly changed and
it filed a `better affidavit’ and took the stand
that they have no objection to any direction for
exercise of cadre review to be undertaken with
reference of the vacancy position as on 1.1.2004
18. The High Court after hearing the parties was
pleased to set aside the judgment of C.A.T. dated
15.12.2006 and the notifications dated 1.2.2006
9
and 25.8.2005 were set aside. The State
Government and the Central Government were
directed that the cadre review exercise should be
undertaken as if it was taking place on 30th April,
2003 with reference to the vacancy position as on
1st January, 2004.
19. In order to resolve the controversy in this case,
the relevant statutory provisions may be noted.
The respondents being S.C.S. Officers, are seeking
promotion to I.A.S. in terms of Rule 4(1)(b) of
the relevant recruitment rules. Rule 4(1)(b) of
the Indian Administrative Service (Recruitment)
Rules, 1954 is set out:-
“4. Method of recruitment of the
Service(1) xxx xxxx
Xxx xxx
(b) By promotion of a substantive member
of a State Civil Service;”
20. In tune with the said method of recruitment,
substantive provisions have been made under Rule 8
for recruitment by promotion. Rule 8(1) of the
1
Recruitment Rules in this connection is set out
below:-
"8. Recruitment by
promotion or selection
for appointment to State
and Joint Cadre:-
(1) The Central
Government may, on the
recommendations of the
State Government
concerned and in
consultation with the
Commission and in
accordance with such
regulations as the
Central Government may,
after consultation with
the State Governments and
the Commission, from time
to time, make, recruit to
the Service persons by
promotion from amongst
the substantive members
of a State Civil
Service."
21. Under Rule 9, the number of persons to be
recruited under Rule 8 has been specified, but in
this case we are not concerned with that
controversy.
22. The other regulation which is relevant in this
case is Rule 5 of Indian Administrative Service
1
(Appointment by Promotion) Regulations, 1955
(hereinafter referred to as, `the said
regulation’). These regulations have been
referred to in the earlier part of the judgment.
Rule 5(3) of the said regulation, relevant for the
purpose of this case, is set out below:-
“5 (3) The Committee
shall not consider the
cases of the members of
the State Civil Service
who have attained the age
of 54 years on the first
day of January of the
year in which it meets:
Provided that a member of
the State Civil Service
whose name appears in the
Select List prepared for
the earlier year before
the date of the meeting
of the Committee and who
has not been appointed to
the Service only because
he was included
provisionally in that
Select List shall be
considered for inclusion
in the fresh list to be
prepared by the
Committee, even if he has
in the meanwhile attained
the age of fifty four
years:
Provided further that a
member of the State Civil
Service who has attained
1
the age of fifty-four
years on the first day of
January of the year in
which the Committee meets
shall be considered by
the Committee, if he was
eligible for
consideration on the
first day of January of
the year or of any of the
years immediately
preceding the year in
which such meeting is
held but could not be
considered as no meeting
of the Committee was held
during such preceding
year or years.”
23. Another regulation relevant in this connection is
Indian Administrative Service (Cadre) Rules, 1954
(hereinafter referred to as, `the Cadre Rules’)
24. Under Rule 4 of the said Cadre Rules, the strength
and composition of the Cadres constituted under
Rule 3 shall be determined by regulation made by
the Central Government in consultation with the
State Government and until such regulations are
made, shall be as in force immediately before the
commencement of those rules.
1
25. Rule 4(2) has come up for interpretation in this
case and to appreciate its true contents, the said
Rule 4(2) is set out below:-
“(2) The Central
Government shall
ordinarily at the
interval of every five
years, re-examine the
strength and composition
of each such cadre in
consultation with the
State Government or the
State Governments
concerned and may make
such alterations therein
as it deems fit.
Provided that nothing in
this sub-rule shall be
deemed to affect the
power of the Central
Government to alter the
strength and composition
of any cadre at any other
time:
Provided further that
State Government
concerned may add for a
period not exceeding two
years and with the
approval of the Central
Government for a further
period not exceeding
three years, to a Sate or
Joint Cadre one or more
posts carrying duties or
responsibilities of a
1
like nature to cadre
posts.”
26. The main controversy in this case is, whether re-
examination on the strength and composition of
cadre in the State of Uttar Pradesh had taken
place in accordance with the mandate of Rule 4
sub-rule (2).
27. It appears clearly that the authorities who are
under a statutory mandate to re-examine the
strength and composition of cadre are the Central
Government and the concerned State Government. It
can be noted in this connection that word
`ordinarily’ in Rule 4(2) has come by way of
amendment with effect from 1.3.1995 along with
said amendment has also come the amendment of 5
years, previously it was 3 years.
28. From the admitted facts of this case, it is clear
that Central Government had always thought that
cadre review in terms of Rule 4(2) of the cadre
Rules was due in 2003. In several letters written
by the Central Government, it has been repeatedly
1
urged that the cadre review of I.A.S. cadre of
Uttar Pradesh is due on 30th April, 2003. The
letter dated 23/24 January, 2003 written to that
effect on behalf of the appellant to the Chief
Secretary, Government of Uttar Pradesh, Lucknow is
set out below:-
“Dear Shri Bagga,
The cadre review of IAS
cadre of Uttar Pradesh is
due on 30.04.2003. The
Supreme Court in 613/1994
(TANSOA vs. Union of
India) has stated that
the Central Government
has the primary
responsibility of making
cadre reviews and to
consider whether it is
necessary or not to
encadre long existing ex-
cadre posts. Delay in
conducting the cadre
review results in
avoidable litigation as
officers of the State
Civil Service approach
the Courts that the delay
has stalled their
promotional avenues. It
is important that the
cadre reviews are held on
time.
2. I shall, therefore, be
grateful if you could
look into the matter1
personally and instruct
the concerned officials
to sponsor the review
proposals in the
prescribed proforma,
after taking into
consideration the
requirement of the State
Government by 28th
February, 2003 to this
Department for processing
the case further.
With regards”
29. In various subsequent letters, namely dated 5th
March, 2003, 3rd September, 2003, 17th September,
2003, 8th December, 2003, the Central Government
reiterated its stand that cadre review has to be
done by 2003. Admittedly, the Central Government
took the aforesaid stand in view of the law laid
down by this Court in the case of T.N.
Administrative Service Officers Association and
another v. Union of India and others, reported in
(2000) 5 SCC 728.
30. It cannot be disputed that the Central Government
took the aforesaid stand in view of its statutory
responsibility of initiating cadre review as a
1
cadre controlling authority. In fact in the letter
dated 29th August, 2005 by Neera Yadav, on behalf
of the State of Uttar Pradesh, it has been
categorically admitted in paragraph 3 of the said
letter that the previous cadre review was done in
1998. The stand is as follows:-
“Thus, the cadre review
for alteration was to be
done under Rule 4(2) of
the Indian Administrative
Service Cadre Rules, 1954
as on 30.04.2003. The
Department of Personal &
Training, through D.O.
letter No.11031/5/2003-
AIS-II dated 23.01.2003
requested that State
Government to sponsor the
review proposal on the
prescribed proforma as
cadre review as cadre
review of Indian
Administrative Service,
Uttar Pradesh cadre was
due on 30.04.2003.”
31. In the affidavit of the appellant, filed before
Central Administrative Tribunal, the following
stand has been categorically taken:-
“It is submitted that the
last cadre strength of
the IAS cadre of unified
1
cadre of Uttar Pradesh
was notified on
30.04.1998. Therefore,
as per Rule 4(2) of the
IAS (Cadre) Rules, 1954,
the next review was due
on 30.4.2003.”
32. It was also stated that the reference by the State
Government to order dated 23.9.2000 was not one of
cadre review. It was a reference of the State
Government in connection with the bifurcation of
Uttar Pradesh and Uttaranchal, pursuant to Uttar
Pradesh Reorganization Act, 2000. It was admitted
that the I.A.S cadre of Uttaranchal was
constituted later i.e. on 21.10.2000.
33. In so far as the State of U.P. was concerned, the
State filed an application for a `better
affidavit’ before the High Court and in paragraphs
4 and 5 of the said application the State
Government reiterated the reasons for filing a
`better affidavit’. In those paragraphs, the stand
of the Central Government was reiterated, namely,
that the last cadre review was done in 1998 and
the subsequent cadre review under Rule 4(2) of the
1
Cadre Rules was due on 30.04.2003. In the `better
affidavit’, which was filed on behalf of the State
of Uttar Pradesh before the High Court, in
paragraph 8, the stand taken is as follows:-
“..In this view of the
matter, since the last
“Quinquenial Cadre
Review” of the IAS Cadre
was held on 30.4.1998,
the next “Quinquenial
Cadre Review” of the IAS
cadre became due on
30.4.2003 as stated by
the Cadre Controlling
Authority in para 9 of
its counter affidavit.”
34. It is thus clear that both the authorities under
Rule 4(2) of the Cadre Rules accepted on principle
that cadre review in Uttar Pradesh was due in
2003.
35. Appearing for the appellants the learned counsel
urged that the judgment of the High Court in so
far as it seeks to give a retrospective effect to
the cadre review is bad inasmuch as the stand of
the appellants is that the Notification dated
25.8.2005 makes it explicitly clear that the same
2
comes into force on the date of its publication in
the Official Gazette. Relying on the said
Notification, it has been urged that since the
same has been made explicitly prospective and
especially when the Rule in question, namely, Rule
4(2) of the Cadre Rules is expressly prospective
in nature, the cadre review exercise cannot be
made retrospective. This seems to be the only bone
of contention on the part of the appellants.
36. However, from the discussion made hereinbefore,
the following things are clear:
(a) Both the appellants and the State
Government in accordance with their
stand in the subsequent affidavit
accepted that Cadre Review in the State
of U.P. was made in 1998 and the next
Cadre Review in that State was due in
2003;
(b) Neither the appellants nor the State
Government has given any plausible
explanation justifying the delay in
Cadre review;
2
(c) From the materials on record it is clear
that the appellant as the Cadre
Controlling authority repeatedly urged
the State Government to initiate the
review by several letters referred to
hereinabove;
(d) The only reason for the delay in review,
in our opinion, is that there was total
in-action on the part of the U.P.
Government and lackadaisical attitude in
discharging its statutory
responsibility.
37. The Court must keep in mind the Constitutional
obligation of both the appellants/Central
Government as also the State Government. Both the
Central Government and the State Government are to
act as model employers, which is consistent with
their role in a Welfare State.
38. It is an accepted legal position that the right of
eligible employees to be considered for promotion
is virtually a part of their fundamental right
2
guaranteed under Article 16 of the Constitution.
The guarantee of a fair consideration in matters
of promotion under Article 16 virtually flows from
guarantee of equality under Article 14 of the
Constitution.
39. In The Manager, Government Branch Press and Anr.
vs. D.B. Belliappa – (1979) 1 SCC 477, a three
judge Bench of this Court in relation to service
dispute, may be in a different context, held that
the essence of guarantee epitomized under Articles
14 and 16 is “fairness founded on reason” (See
para 24 page 486).
40. It is, therefore, clear that legitimate
expectations of the respondents of being
considered for promotion has been defeated by the
acts of the government and if not of the Central
Government, certainly the unreasonable in-action
on the part of the Government of State of U.P.
stood in the way of the respondents’ chances of
promotion from being fairly considered when it is
due for such consideration and delay has made them
2
ineligible for such consideration. Now the
question which is weighing on the conscience of
this Court is how to fairly resolve this
controversy.
41. Learned counsel for the appellants has also urged
that the statutory mandate of a cadre review
exercise every five years is qualified by the
expression `ordinarily’. So if it has not been
done within five years that does not amount to a
failure of exercise of a statutory duty on the
part of the authority contemplated under the Rule.
42. This Court is not very much impressed with the
aforesaid contention. The word `ordinarily’ must
be given its ordinary meaning. While construing
the word the Court must not be oblivious of the
context in which it has been used. In the case in
hand the word `ordinarily’ has been used in the
context of promotional opportunities of the
Officers concerned. In such a situation the word
`ordinarily’ has to be construed in order to
2
fulfill the statutory intent for which it has been
used.
43. The word `ordinarily’, of course, means that it
does not promote a cast iron rule, it is flexible
(See Jasbhai Motibhai Desai vs. Roshan Kumar, Haji
Bashir Ahmed and Others – (1976) 1 SCC 671, at
page 682 (para 35). It excludes something which
is extraordinary or special [Eicher Tractors
Limited, Haryana vs. Commissioner of Customs,
Mumbai – (2001) 1 SCC 315, at page 319 (para 6)].
The word `ordinarily’ would convey the idea of
something which is done `normally’ [Krishan Gopal
vs. Shri Prakashchandra and others – (1974) 1 SCC
128, at page 134 (para 12)] and `generally’
subject to special provision [Mohan Baitha and
others vs. State of Bihar and another – (2001) 4
SCC 350 at page 354].
44. Concurring with the aforesaid interpretative
exercise, we hold that the statutory duty which is
cast on the State Government and the Central
Government to undertake the cadre review exercise
2
every five years is ordinarily mandatory subject
to exceptions which may be justified in the facts
of a given case. Surely, lethargy, in-action, an
absence of a sense of responsibility cannot fall
within category of just exceptions.
45. In the facts of this case neither the appellants
nor the State of U.P. has justified its action of
not undertaking the exercise within the statutory
time frame on any acceptable ground. Therefore,
the delayed exercise cannot be justified within
the meaning of `ordinarily’ in the facts of this
case. In the facts of the case, therefore, the
Court holds that there was failure on the part of
the authorities in carrying out the timely
exercise of cadre review.
46. In a somewhat similar situation, this Court in
Union of India and Ors. vs. Vipinchandra Hiralal
Shah – (1996) 6 SCC 721, while construing
Regulation 5 of the I.A.S. (Appointment by
Promotion) Regulations, 1955 held that the
insertion of the word `ordinarily’ does not alter
2
the intendment underlying the provision. This
Court in that case was considering the provision
of Clause (1) of Regulation 5 of the IPS
(Appointment by Promotion) Regulations along with
other provisions of Regulation 5. The
interpretation which this Court gave to the
aforesaid two Regulations was that the Selection
Committee shall meet at an interval not exceeding
one year and prepare a list of members who are
eligible for promotion under the list. The Court
held that this was mandatory in nature.
47. It was urged before this Court that the insertion
of the word `ordinarily’ will make a difference.
Repelling the said contention, this Court held
that the word `ordinarily’ does not alter the
underlying intendment of the provision. This Court
made it clear that unless there is a very good
reason for not doing so, the Selection Committee
shall meet every year for making the selection. In
doing so, the Court relied on its previous
decision in Syed Khalid Rizvi vs. Union of India –
1993 Supp. (3) SCC 575. In that case the Court
2
was considering Regulation 5 of the Indian Police
Service (Appointment by Promotion) Regulations,
1955 which also contained the word `ordinarily’.
In that context the word `ordinarily’ has been
construed as:
“…….since preparation
of the select list is the
foundation for promotion
and its omission impinges
upon the legitimate
expectation of promotee
officers for
consideration of their
claim for promotion as
IPS officers, the
preparation of the select
list must be construed to
be mandatory. The
Committee should,
therefore, meet every
year and prepare the
select list and be
reviewed and revised from
time to time as
exigencies demand.”
48. The same logic applies in the case of cadre review
exercise also.
49. Therefore, this Court accepts the arguments of the
learned counsel for the appellants that Rule 4(2)
2
cannot be construed to have any retrospective
operation and it will operate prospectively. But
in the facts and circumstances of the case, the
Court can, especially having regard to its power
under Article 142 of the Constitution, give
suitable directions in order to mitigate the
hardship and denial of legitimate rights of the
employees. The Court is satisfied that in this
case for the delayed exercise of statutory
function the Government has not offered any
plausible explanation. The respondents cannot be
made in any way responsible for the delay. In such
a situation, as in the instant case, the
directions given by the High Court cannot be said
to be unreasonable. In any event this Court
reiterates those very directions in exercise of
its power under Article 142 of the Constitution of
India subject to the only rider that in normal
cases the provision of Rule 4(2) of the said Cadre
Rules cannot be construed retrospectively.
2
50. With the aforesaid modification/direction, the
appeals filed by the Union of India are disposed
of. There shall be no order as to costs.
…………………..J.
(R.V. RAVEENDRAN)
…………………..J.
(ASOK KUMAR GANGULY)
New Delhi
March 23, 2010
3