{"id":45682,"date":"2010-03-23T00:00:00","date_gmt":"2010-03-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/union-of-india-anr-vs-hemraj-singh-chauhan-ors-on-23-march-2010"},"modified":"2016-10-22T00:37:41","modified_gmt":"2016-10-21T19:07:41","slug":"union-of-india-anr-vs-hemraj-singh-chauhan-ors-on-23-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/union-of-india-anr-vs-hemraj-singh-chauhan-ors-on-23-march-2010","title":{"rendered":"Union Of India & Anr vs Hemraj Singh Chauhan & Ors on 23 March, 2010"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Union Of India & Anr vs Hemraj Singh Chauhan & Ors on 23 March, 2010<\/div>\n
Author: Ganguly<\/div>\n
Bench: R.V. Raveendran, Asok Kumar Ganguly<\/div>\n
                                                           REPORTABLE\n\n              IN THE SUPREME COURT OF INDIA\n               CIVIL APPELLATE JURISDICTION\n\n\n            CIVIL APPEAL NO.2651-52 OF 2010\n       (Arising out of SLP(C) No.6758-6759\/2009)\n\n\n\n\nUnion of India & Another                ..Appellant(s)\n\n\n                           Versus\n\n\n\nHemraj Singh Chauhan & Others           ..Respondent(s)\n\n\n\n                      J U D G M E N T\n<\/pre>\n
GANGULY, J.\n<\/p>\n<\/p>\n
1.   Leave granted.\n<\/p>\n<\/p>\n
2.   In SLP (C) Nos.6758-6759\/2009, Union of India and<\/p>\n
     the Secretary, Union Public Service Commission are<\/p>\n
     in appeal impugning the judgment and order dated<\/p>\n
     14.11.2008 delivered by the Delhi High Court on<\/p>\n
     the writ petition filed by Hemraj Singh Chauhan<\/p>\n
     and Ramnawal Singh, the respondents herein.<\/p>\n
                             1<\/span>\n<\/p>\n
3.   The    respondents          are     members        of    the       State      Civil<\/p>\n
     Service (S.C.S.) of the State of Uttar Pradesh and<\/p>\n
     according to them completed eight years of service<\/p>\n
     on     23.07.85         and        4.6.86         respectively.                 The<\/p>\n
     contention of the respondents is that in terms of<\/p>\n
     Regulation        5(3)        of     the      Indian       Administrative<\/p>\n
     Service       (Appointment          by       Promotion)            Regulations,<\/p>\n
     1955, a member of the S.C.S., who has attained the<\/p>\n
     age of 54 years on the 1st day of January of the<\/p>\n
     year     in    which        the     Committee           meets,       shall       be<\/p>\n
     considered        by     the       Committee,           provided         he     was<\/p>\n
     eligible for such consideration on the 1st day of<\/p>\n
     the    year    or      of     any       of   the        years      immediately<\/p>\n
     preceding the year in which such meeting is held,<\/p>\n
     but could not be considered as no meeting of the<\/p>\n
     Committee was held during such preceding year or<\/p>\n
     years.\n<\/p>\n<\/p>\n
4.   Those regulations have been framed in exercise of<\/p>\n
     power     under        Sub-Rule         1    of    Rule        8    of     Indian<\/p>\n
     Administrative Service Recruitment Rules, 1954 and<\/p>\n
                                         2<\/span>
\n     in consultation with the State Government and the<\/p>\n
     Union Public Service Commission.<\/p>\n
5.   Regulation 5 (1) of the said Regulation provides<\/p>\n
     that such Committee shall ordinarily meet every<\/p>\n
     year and prepare a list of such members of the<\/p>\n
     S.C.S. as are held to be suitable for                      promotion<\/p>\n
     to the service.      The number of members of the said<\/p>\n
     civil services to be included in this list shall<\/p>\n
     be    determined    by   the           Central    Government      in<\/p>\n
     consultation with the State Government concerned<\/p>\n
     but   shall   not   exceed       the    number    of     substantive<\/p>\n
     vacancies in the year in which such meeting is<\/p>\n
     held.\n<\/p>\n<\/p>\n
6.   It may be mentioned in this connection that as a<\/p>\n
     result   of   bifurcation         of     the     State    of   Uttar<\/p>\n
     Pradesh as a result of creation of the State of<\/p>\n
     Uttaranchal in terms of the State Reorganization<\/p>\n
     Act, namely Uttar Pradesh State Reorganization Act<\/p>\n
     2000, two notifications were issued on 21.10.2000.<\/p>\n
     The first was issued under Section 3(1) of the All<\/p>\n
     India Services Act, 1951 read with Section 72 (2)<\/p>\n
                                  3<\/span>
\n     and (3) of the Reorganization Act and Rule 4 (2)<\/p>\n
     of the Indian Administrative Service (Fixation of<\/p>\n
     Cadre       Strength)     Regulations,         1956      (hereinafter<\/p>\n
     referred to as the “Cadre Rule”).<\/p>\n
7.   Thus, the Central Government constituted for the<\/p>\n
     State       of     Uttaranchal       an    Indian     Administrative<\/p>\n
     Service      Cadre      with     effect      from     1.11.2000.      On<\/p>\n
     21.10.2000 another notification was issued fixing<\/p>\n
     the   cadre        strength     of    State    of     Uttar       Pradesh<\/p>\n
     thereby determining the number of senior posts in<\/p>\n
     the State of Uttar Pradesh as 253.<\/p>\n
8.   The case of the appellants is that the next cadre<\/p>\n
     review for the State of Uttar Pradesh fell due on<\/p>\n
     30th April, 2003. To that effect a letter dated<\/p>\n
     23.1.2003 was written by the Additional Secretary<\/p>\n
     in    the        Department    of     Personnel       and    Training,<\/p>\n
     Ministry          of   Personnel,         Public    Grievances       and<\/p>\n
     Pensions,          Government        of    India    to      the    Chief<\/p>\n
     Secretary, Government of Uttar Pradesh.<\/p>\n
                                      4<\/span>\n<\/p>\n
9.     The   further       case     of    the     appellants      is      that<\/p>\n
     several      reminders       were    sent     on    5th    March,     3rd<\/p>\n
     September, 17th September and 8th December, 2003 but<\/p>\n
     unfortunately the Government of Uttar Pradesh did<\/p>\n
     not respond.         Then a further reminder was sent by<\/p>\n
     the Government of India stating therein that four<\/p>\n
     requests were made for the cadre review of the<\/p>\n
     I.A.S. cadre of Uttar Pradesh but no response was<\/p>\n
     received from the Government of Uttar Pradesh.                         In<\/p>\n
     the   said    letter     the   Government          of   India    wanted<\/p>\n
     suitable direction from the concerned officials so<\/p>\n
     that they can furnish the cadre review proposal by<\/p>\n
     28.2.04. Unfortunately, there was no response and<\/p>\n
     thereafter subsequent reminders were also sent by<\/p>\n
     the Government of India on 14th\/17th June, 2004 and<\/p>\n
     8th October, 2004.\n<\/p>\n<\/p>\n
10. Ultimately,       a      proposal      was    received       from      the<\/p>\n
     Government of Uttar Pradesh only in the month of<\/p>\n
     January 2005 and immediately preliminary meeting<\/p>\n
     was fixed on 21st February, 2005.                       Thereafter, a<\/p>\n
     cadre     review        meeting       was      held       under       the<\/p>\n
     Chairmanship       of    the       Cabinet    Secretary         on   20th<\/p>\n
                                    5<\/span>
\n    April, 2005 and the Minutes duly signed by the<\/p>\n
    Chief Secretary, Government of Uttar Pradesh were<\/p>\n
    received   by    the    appellants         on   27th   June,   2005.<\/p>\n
    After   approval       was   given    to    the    said   Minutes,<\/p>\n
    notification was issued on 25th August, 2005 re-<\/p>\n
    fixing the cadre strength in the State of Uttar<\/p>\n
    Pradesh.\n<\/p>\n<\/p>\n
11. Challenging the said notification, the respondents<\/p>\n
    herein approached Central Administrative Tribunal,<\/p>\n
    Principal Bench, New Delhi (hereinafter referred<\/p>\n
    to as C.A.T.) by filing two O.As, namely, O.A.<\/p>\n
    No.1097\/2006     and     O.A.    No.1137\/2006          praying    for<\/p>\n
    quashing    of     the       said     notification.               The<\/p>\n
    respondents     also     prayed      for    setting     aside     the<\/p>\n
    order   dated      1.2.2006       whereby         vacancies      were<\/p>\n
    increased as a result of the said cadre review<\/p>\n
    adding to the then existing vacancies for the year<\/p>\n
    2006.\n<\/p>\n<\/p>\n
12. In those O.As the substance of the contention of<\/p>\n
    the respondents was that the last cadre review of<\/p>\n
    the I.A.S. in Uttar Pradesh cadre was conducted in<\/p>\n
                                 6<\/span>
\n    1998 and the next cadre review was therefore due<\/p>\n
    in April 2003.            As such it was contended that the<\/p>\n
    cadre review which was conducted in August 2005<\/p>\n
    should have been given effect from April 2003 so<\/p>\n
    that     the    respondents          could     be    considered      for<\/p>\n
    promotion against the promotion quota.<\/p>\n
13. The stand of the State of Uttar Pradesh before<\/p>\n
    C.A.T. was that with the issuance of notification<\/p>\n
    issued by the Department of Personnel and Training<\/p>\n
    on 21.10.2000 bifurcating cadre of undivided Uttar<\/p>\n
    Pradesh        to    I.A.S.      Uttar       Pradesh        and    I.A.S.<\/p>\n
    Uttaranchal upon the Uttar Pradesh Reorganization<\/p>\n
    Act, cadre review has already taken place and as<\/p>\n
    such the next review was due in 2005 only.<\/p>\n
14. The stand of the appellants both before the C.A.T.<\/p>\n
    and    before       the   High       Court   was    that     the    cadre<\/p>\n
    review was due in 2003.                However, the C.A.T. after<\/p>\n
    hearing the parties upheld the contention of the<\/p>\n
    State of Uttar Pradesh and held that the cadre<\/p>\n
    review     carried        out    in     2005       cannot     be   given<\/p>\n
    retrospective effect.                The Tribunal dismissed O.A.<\/p>\n
                                     7<\/span>
\n    No.1097\/06 and partially allowed O.A. No.1137\/06,<\/p>\n
    inter alia, directing the respondents to convene<\/p>\n
    the meeting of D.P.C. Selection Committee to fill-<\/p>\n
    up the posts which were not filled up in the year<\/p>\n
    2001, 2002 and 2004 and to consider all eligible<\/p>\n
    S.C.S.     Officers    in   the    zone   of    consideration<\/p>\n
    including the officers who were put in the select<\/p>\n
    list of those years but could not be appointed in<\/p>\n
    the absence of integrity certificate.<\/p>\n
15. However, the respondents being aggrieved by the<\/p>\n
    judgment    of   the   C.A.T.     filed   a    writ   petition<\/p>\n
    before     the   Hon’ble    High    Court      on   18.12.2006<\/p>\n
    contending therein that the cadre review of the<\/p>\n
    I.A.S. of Uttar Pradesh cadre was due in 2003 and<\/p>\n
    was delayed by the State of Uttar Pradesh as a<\/p>\n
    result of which some of the S.C.S. Officers were<\/p>\n
    deprived of their promotion to the I.A.S.               Their<\/p>\n
    specific stand in the writ petition was if the<\/p>\n
    increased vacancies were available in 2004 as a<\/p>\n
    result of the cadre review in 2003, they could<\/p>\n
    have been promoted to I.A.S.\n<\/p>\n
                                8<\/span>\n<\/p>\n
16. However, before the High Court the stand of the<\/p>\n
    Central Government was that the cadre review of<\/p>\n
    the I.A.S. of Uttar Pradesh was due in 2003 but<\/p>\n
    unfortunately it was held in 2005 when State of<\/p>\n
    Uttar Pradesh had sent its proposal.                     Such review<\/p>\n
    was made effective from 25.8.2005 when the revised<\/p>\n
    cadre     strength       of     the     I.A.S.     cadre     of     Uttar<\/p>\n
    Pradesh was notified in the official Gazette in<\/p>\n
    terms   of   the        statutory       provisions.      The      further<\/p>\n
    stand of the appellants was that the cadre review<\/p>\n
    undertaken in 2005 cannot be given retrospective<\/p>\n
    effect.\n<\/p>\n<\/p>\n
17. However, before the High Court the stand of the<\/p>\n
    Uttar Pradesh Government was slightly changed and<\/p>\n
    it filed a `better affidavit’ and took the stand<\/p>\n
    that they have no objection to any direction for<\/p>\n
    exercise     of    cadre       review    to   be    undertaken      with<\/p>\n
    reference of the vacancy position as on 1.1.2004<\/p>\n
18. The   High    Court       after       hearing      the   parties      was<\/p>\n
    pleased to set aside the judgment of C.A.T. dated<\/p>\n
    15.12.2006        and    the    notifications        dated     1.2.2006<\/p>\n
                                     9<\/span>
\n    and    25.8.2005      were       set     aside.         The   State<\/p>\n
    Government     and     the       Central        Government    were<\/p>\n
    directed that the cadre review exercise should be<\/p>\n
    undertaken as if it was taking place on 30th April,<\/p>\n
    2003 with reference to the vacancy position as on<\/p>\n
    1st January, 2004.\n<\/p>\n<\/p>\n
19. In order to resolve the controversy in this case,<\/p>\n
    the relevant statutory provisions may be noted.<\/p>\n
    The respondents being S.C.S. Officers, are seeking<\/p>\n
    promotion to I.A.S. in terms of Rule 4(1)(b) of<\/p>\n
    the relevant recruitment rules.                  Rule 4(1)(b) of<\/p>\n
    the   Indian   Administrative           Service       (Recruitment)<\/p>\n
    Rules, 1954 is set out:-\n<\/p>\n
                   “4. Method of recruitment of the
\n                   Service<\/p>\n
                   (1)           xxx           xxxx
\n                                  Xxx           xxx<\/p>\n<\/blockquote>\n
          (b) By promotion of a substantive member
\n              of a State Civil Service;”\n<\/p><\/blockquote>\n
20. In    tune   with    the   said        method    of    recruitment,<\/p>\n
    substantive provisions have been made under Rule 8<\/p>\n
    for recruitment by promotion.                   Rule 8(1) of the<\/p>\n
                                 1<\/span>
\n    Recruitment Rules in this connection is set out<\/p>\n
    below:-\n<\/p>\n<\/p>\n
                                  \"8.      Recruitment       by\n                                  promotion    or    selection\n                                  for appointment to State\n                                  and Joint Cadre:-\n                                     (1) The            Central\n                                  Government may, on the\n                                  recommendations      of   the\n                                  State             Government\n                                  concerned        and       in\n                                  consultation     with     the\n                                  Commission       and       in\n                                  accordance      with     such\n                                  regulations       as      the\n                                  Central Government may,\n                                  after consultation with\n                                  the State Governments and\n                                  the Commission, from time\n                                  to time, make, recruit to\n                                  the Service persons by\n                                  promotion    from     amongst\n                                  the substantive members\n                                  of     a     State      Civil\n                                  Service.\"\n\n\n\n21. Under     Rule     9,   the     number     of    persons     to    be\n\n<\/pre>\n
    recruited under Rule 8 has been specified, but in<\/p>\n
    this    case      we    are        not   concerned    with        that<\/p>\n
    controversy.\n<\/p>\n<\/p>\n
22. The    other     regulation     which     is    relevant   in     this<\/p>\n
    case is Rule 5 of Indian Administrative Service<\/p>\n
                                   1<\/span>
\n(Appointment    by   Promotion)    Regulations,      1955<\/p>\n
(hereinafter    referred     to    as,     `the      said<\/p>\n
regulation’).        These   regulations   have      been<\/p>\n
referred to in the earlier part of the judgment.<\/p>\n
Rule 5(3) of the said regulation, relevant for the<\/p>\n
purpose of this case, is set out below:-<\/p>\n
                       “5 (3) The      Committee
\n                       shall not consider the
\n                       cases of the members of
\n                       the State Civil Service
\n                       who have attained the age
\n                       of 54 years on the first
\n                       day of January of the
\n                       year in which it meets:\n<\/p>\n
                       Provided that a member of
\n                       the State Civil Service
\n                       whose name appears in the
\n                       Select List prepared for
\n                       the earlier year before
\n                       the date of the meeting
\n                       of the Committee and who
\n                       has not been appointed to
\n                       the Service only because
\n                       he       was       included
\n                       provisionally     in   that
\n                       Select    List  shall    be
\n                       considered for inclusion
\n                       in the fresh list to be
\n                       prepared       by       the
\n                       Committee, even if he has
\n                       in the meanwhile attained
\n                       the age of fifty four
\n                       years:\n<\/p>\n
                       Provided further that a
\n                       member of the State Civil
\n                       Service who has attained<\/p>\n
                        1<\/span>
\n                          the age of fifty-four
\n                          years on the first day of
\n                          January of the year in
\n                          which the Committee meets
\n                          shall be considered by
\n                          the Committee, if he was
\n                          eligible              for
\n                          consideration   on    the
\n                          first day of January of
\n                          the year or of any of the
\n                          years         immediately
\n                          preceding the year in
\n                          which such meeting is
\n                          held but could not be
\n                          considered as no meeting
\n                          of the Committee was held
\n                          during   such   preceding
\n                          year or years.”\n<\/p>\n<\/p>\n
23.    Another regulation relevant in this connection is<\/p>\n
      Indian Administrative Service (Cadre) Rules, 1954<\/p>\n
      (hereinafter referred to as, `the Cadre Rules’)<\/p>\n
24. Under Rule 4 of the said Cadre Rules, the strength<\/p>\n
      and   composition of the Cadres constituted under<\/p>\n
      Rule 3 shall be determined by regulation made by<\/p>\n
      the Central Government in consultation with the<\/p>\n
      State Government and until such regulations are<\/p>\n
      made, shall be as in force immediately before the<\/p>\n
      commencement of those rules.\n<\/p>\n
                            1<\/span>\n<\/p>\n
25. Rule 4(2) has come up for interpretation in this<\/p>\n
    case and to appreciate its true contents, the said<\/p>\n
    Rule 4(2) is set out below:-\n<\/p>\n<\/p>\n
                        “(2)   The        Central
\n                        Government          shall
\n                        ordinarily     at     the
\n                        interval of every five
\n                        years,   re-examine   the
\n                        strength and composition
\n                        of each such cadre in
\n                        consultation   with   the
\n                        State Government or the
\n                        State         Governments
\n                        concerned and may make
\n                        such alterations therein
\n                        as it deems fit.\n<\/p>\n
\n                        Provided that nothing in
\n                        this sub-rule shall be
\n                        deemed   to  affect   the
\n                        power   of  the   Central
\n                        Government to alter the
\n                        strength and composition
\n                        of any cadre at any other
\n                        time:\n<\/p>\n
\n                        Provided    further     that
\n                        State           Government
\n                        concerned may add for a
\n                        period not exceeding two
\n                        years    and    with     the
\n                        approval of the Central
\n                        Government for a further
\n                        period    not    exceeding
\n                        three years, to a Sate or
\n                        Joint Cadre one or more
\n                        posts carrying duties or
\n                        responsibilities     of    a<\/p>\n
                          1<\/span>
\n                                   like   nature           to    cadre
\n                                   posts.”\n<\/p>\n<\/p>\n
26. The main controversy in this case is, whether re-<\/p>\n
    examination      on      the   strength        and    composition      of<\/p>\n
    cadre    in   the     State      of    Uttar    Pradesh      had    taken<\/p>\n
    place in accordance with the mandate of Rule 4<\/p>\n
    sub-rule (2).\n<\/p><\/blockquote>\n
27. It appears clearly that the authorities who are<\/p>\n
    under    a    statutory          mandate       to     re-examine       the<\/p>\n
    strength and composition of cadre are the Central<\/p>\n
    Government and the concerned State Government.                          It<\/p>\n
    can     be    noted      in    this         connection      that     word<\/p>\n
    `ordinarily’        in    Rule       4(2)    has     come   by   way    of<\/p>\n
    amendment      with      effect       from    1.3.1995      along    with<\/p>\n
    said amendment has also come the amendment of 5<\/p>\n
    years, previously it was 3 years.<\/p>\n
28. From the admitted facts of this case, it is clear<\/p>\n
    that Central Government had always thought that<\/p>\n
    cadre review in terms of Rule 4(2) of the cadre<\/p>\n
    Rules was due in 2003.                In several letters written<\/p>\n
    by the Central Government, it has been repeatedly<\/p>\n
                                     1<\/span>
\nurged that the cadre review of I.A.S. cadre of<\/p>\n
Uttar Pradesh is due on 30th April, 2003.          The<\/p>\n
letter dated 23\/24 January, 2003 written to that<\/p>\n
effect on behalf of the appellant to the Chief<\/p>\n
Secretary, Government of Uttar Pradesh, Lucknow is<\/p>\n
set out below:-\n<\/p>\n<\/p>\n
                    “Dear Shri Bagga,<\/p>\n
                      The cadre review of IAS
\n                    cadre of Uttar Pradesh is
\n                    due on 30.04.2003.       The
\n                    Supreme Court in 613\/1994
\n                    (TANSOA    vs.   Union    of
\n                    India) has stated that
\n                    the   Central    Government
\n                    has       the       primary
\n                    responsibility of making
\n                    cadre   reviews    and    to
\n                    consider whether it is
\n                    necessary    or    not    to
\n                    encadre long existing ex-\n<\/p><\/blockquote>\n
                    cadre posts.      Delay in
\n                    conducting     the     cadre
\n                    review      results       in
\n                    avoidable litigation as
\n                    officers of the State
\n                    Civil   Service    approach
\n                    the Courts that the delay
\n                    has      stalled       their
\n                    promotional avenues. It
\n                    is important that the
\n                    cadre reviews are held on
\n                    time.\n<\/p><\/blockquote>\n
                    2. I shall, therefore, be
\n                    grateful if you could
\n                    look   into   the  matter<\/p>\n
                     1<\/span>
\n                                 personally and instruct
\n                                 the concerned officials
\n                                 to sponsor the review
\n                                 proposals      in       the
\n                                 prescribed        proforma,
\n                                 after      taking      into
\n                                 consideration           the
\n                                 requirement of the State
\n                                 Government      by      28th
\n                                 February, 2003 to this
\n                                 Department for processing
\n                                 the case further.\n<\/p><\/blockquote>\n
                                       With regards”\n<\/p><\/blockquote>\n
29. In   various    subsequent          letters,    namely   dated     5th<\/p>\n
    March, 2003, 3rd September, 2003, 17th September,<\/p>\n
    2003, 8th December, 2003, the Central Government<\/p>\n
    reiterated its stand that cadre review has to be<\/p>\n
    done by 2003.         Admittedly, the Central Government<\/p>\n
    took the aforesaid stand in view of the law laid<\/p>\n
    down   by      this        Court     in   the    case    of   T.N.\n<\/p><\/blockquote>\n
    Administrative        Service       Officers    Association      and<\/p>\n
    another v. Union of India and others, reported in<\/p>\n
    (2000) 5 SCC 728.\n<\/p><\/blockquote>\n
30. It cannot be disputed that the Central Government<\/p>\n
    took the aforesaid stand in view of its statutory<\/p>\n
    responsibility        of    initiating     cadre    review    as    a<\/p>\n
                                   1<\/span>
\n    cadre controlling authority. In fact in the letter<\/p>\n
    dated 29th August, 2005 by Neera Yadav, on behalf<\/p>\n
    of   the   State   of   Uttar   Pradesh,    it   has   been<\/p>\n
    categorically admitted in paragraph 3 of the said<\/p>\n
    letter that the previous cadre review was done in<\/p>\n
    1998.   The stand is as follows:-\n<\/p>\n<\/p>\n
                            “Thus, the cadre review
\n                            for alteration was to be
\n                            done under Rule 4(2) of
\n                            the Indian Administrative
\n                            Service Cadre Rules, 1954
\n                            as on 30.04.2003.      The
\n                            Department of Personal &
\n                            Training,   through   D.O.\n<\/p><\/blockquote>\n
                            letter    No.11031\/5\/2003-
\n                            AIS-II dated 23.01.2003
\n                            requested    that    State
\n                            Government to sponsor the
\n                            review proposal on the
\n                            prescribed   proforma   as
\n                            cadre review as cadre
\n                            review      of      Indian
\n                            Administrative    Service,
\n                            Uttar Pradesh cadre was
\n                            due on 30.04.2003.”<\/p><\/blockquote>\n
31. In the affidavit of the appellant, filed before<\/p>\n
    Central    Administrative    Tribunal,     the   following<\/p>\n
    stand has been categorically taken:-<\/p>\n
                            “It is submitted that the
\n                            last cadre strength of
\n                            the IAS cadre of unified
\n                             1<\/span>
\n                                cadre of Uttar Pradesh
\n                                was      notified      on
\n                                30.04.1998.    Therefore,
\n                                as per Rule 4(2) of the
\n                                IAS (Cadre) Rules, 1954,
\n                                the next review was due
\n                                on 30.4.2003.”\n<\/p><\/blockquote>\n
32. It was also stated that the reference by the State<\/p>\n
    Government to order dated 23.9.2000 was not one of<\/p>\n
    cadre     review.    It    was       a     reference    of       the   State<\/p>\n
    Government in connection with the bifurcation of<\/p>\n
    Uttar Pradesh and Uttaranchal, pursuant to Uttar<\/p>\n
    Pradesh Reorganization Act, 2000.                     It was admitted<\/p>\n
    that      the      I.A.S    cadre            of   Uttaranchal            was<\/p>\n
    constituted later i.e. on 21.10.2000.<\/p>\n
33. In so far as the State of U.P. was concerned, the<\/p>\n
    State      filed     an     application           for        a     `better<\/p>\n
    affidavit’ before the High Court and in paragraphs<\/p>\n
    4   and    5    of   the    said           application       the       State<\/p>\n
    Government      reiterated           the    reasons    for       filing    a<\/p>\n
    `better affidavit’. In those paragraphs, the stand<\/p>\n
    of the Central Government was reiterated, namely,<\/p>\n
    that the last cadre review was done in 1998 and<\/p>\n
    the subsequent cadre review under Rule 4(2) of the<\/p>\n
                                     1<\/span>
\n    Cadre Rules was due on 30.04.2003.                 In the `better<\/p>\n
    affidavit’, which was filed on behalf of the State<\/p>\n
    of     Uttar    Pradesh   before           the   High    Court,     in<\/p>\n
    paragraph 8, the stand taken is as follows:-<\/p>\n
                              “..In this view of the
\n                              matter, since the last
\n                              “Quinquenial          Cadre
\n                              Review” of the IAS Cadre
\n                              was held on 30.4.1998,
\n                              the   next   “Quinquenial
\n                              Cadre Review” of the IAS
\n                              cadre   became    due    on
\n                              30.4.2003 as stated by
\n                              the   Cadre    Controlling
\n                              Authority in para 9 of
\n                              its counter affidavit.”\n<\/p><\/blockquote>\n
34. It is thus clear that both the authorities under<\/p>\n
    Rule 4(2) of the Cadre Rules accepted on principle<\/p>\n
    that    cadre   review    in       Uttar    Pradesh     was   due   in<\/p>\n
    2003.\n<\/p>\n<\/p>\n
35. Appearing for the appellants the learned counsel<\/p>\n
    urged that the judgment of the High Court in so<\/p>\n
    far as it seeks to give a retrospective effect to<\/p>\n
    the cadre review is bad inasmuch as the stand of<\/p>\n
    the    appellants    is   that       the     Notification      dated<\/p>\n
    25.8.2005 makes it explicitly clear that the same
\n                                   2<\/span>
\n    comes into force on the date of its publication in<\/p>\n
    the    Official        Gazette.           Relying      on     the      said<\/p>\n
    Notification,        it    has     been     urged   that      since    the<\/p>\n
    same    has     been      made     explicitly       prospective        and<\/p>\n
    especially when the Rule in question, namely, Rule<\/p>\n
    4(2) of the Cadre Rules is expressly prospective<\/p>\n
    in    nature,    the      cadre        review   exercise      cannot    be<\/p>\n
    made retrospective. This seems to be the only bone<\/p>\n
    of contention on the part of the appellants.<\/p>\n
36. However,      from     the      discussion      made      hereinbefore,<\/p>\n
    the following things are clear:\n<\/p>\n
     (a)          Both        the      appellants       and      the    State<\/p>\n
                  Government           in     accordance         with   their<\/p>\n
                  stand        in      the      subsequent         affidavit<\/p>\n
                  accepted that Cadre Review in the State<\/p>\n
                  of U.P. was made in 1998 and the next<\/p>\n
                  Cadre Review in that State was due in<\/p>\n
                  2003;\n<\/p>\n
     (b)          Neither        the       appellants    nor      the   State<\/p>\n
                  Government           has     given       any     plausible<\/p>\n
                  explanation              justifying    the       delay    in<\/p>\n
                  Cadre review;\n<\/p>\n
                                       2<\/span>\n<\/p>\n
     (c)           From the materials on record it is clear<\/p>\n
                   that       the     appellant          as        the    Cadre<\/p>\n
                   Controlling           authority      repeatedly        urged<\/p>\n
                   the    State      Government         to    initiate      the<\/p>\n
                   review by several letters referred to<\/p>\n
                   hereinabove;\n<\/p>\n
     (d)           The only reason for the delay in review,<\/p>\n
                   in our opinion, is that there was total<\/p>\n
                   in-action         on    the     part       of    the   U.P.\n<\/p>\n
                   Government and lackadaisical attitude in<\/p>\n
                   discharging                    its               statutory<\/p>\n
                   responsibility.\n<\/p>\n<\/p>\n
37. The    Court   must       keep    in    mind    the      Constitutional<\/p>\n
    obligation           of    both         the      appellants\/Central<\/p>\n
    Government as also the State Government. Both the<\/p>\n
    Central Government and the State Government are to<\/p>\n
    act as model employers, which is consistent with<\/p>\n
    their role in a Welfare State.\n<\/p>\n<\/p>\n
38. It is an accepted legal position that the right of<\/p>\n
    eligible employees to be considered for promotion<\/p>\n
    is    virtually      a    part    of    their       fundamental       right<\/p>\n
                                     2<\/span>
\n    guaranteed under Article 16 of the Constitution.<\/p>\n
    The guarantee of a fair consideration in matters<\/p>\n
    of promotion under Article 16 virtually flows from<\/p>\n
    guarantee   of   equality       under    Article     14   of   the<\/p>\n
    Constitution.\n<\/p>\n<\/p>\n
39. In The Manager, Government Branch Press and Anr.<\/p>\n
    vs. D.B. Belliappa<\/a> – (1979) 1 SCC 477, a three<\/p>\n
    judge Bench of this Court in relation to service<\/p>\n
    dispute, may be in a different context, held that<\/p>\n
    the essence of guarantee epitomized under Articles<\/p>\n
    14 and 16 is “fairness founded on reason” (See<\/p>\n
    para 24 page 486).\n<\/p>\n<\/p>\n
40. It   is,      therefore,        clear      that      legitimate<\/p>\n
    expectations     of   the            respondents     of    being<\/p>\n
    considered for promotion has been defeated by the<\/p>\n
    acts of the government and if not of the Central<\/p>\n
    Government,    certainly       the    unreasonable    in-action<\/p>\n
    on the part of the Government of State of U.P.<\/p>\n
    stood in the way of the respondents’ chances of<\/p>\n
    promotion from being fairly considered when it is<\/p>\n
    due for such consideration and delay has made them<\/p>\n
                               2<\/span>
\n      ineligible        for     such       consideration.               Now     the<\/p>\n
      question which is weighing on the conscience of<\/p>\n
      this   Court        is     how       to        fairly       resolve      this<\/p>\n
      controversy.\n<\/p>\n<\/p>\n
41.    Learned counsel for the appellants has also urged<\/p>\n
      that   the    statutory          mandate         of     a   cadre     review<\/p>\n
      exercise     every       five    years         is     qualified     by    the<\/p>\n
      expression        `ordinarily’.           So    if    it    has   not    been<\/p>\n
      done within five years that does not amount to a<\/p>\n
      failure of exercise of a statutory duty on the<\/p>\n
      part of the authority contemplated under the Rule.<\/p>\n
42. This Court is not very much impressed with the<\/p>\n
      aforesaid contention. The word `ordinarily’ must<\/p>\n
      be given its ordinary meaning. While construing<\/p>\n
      the word the Court must not be oblivious of the<\/p>\n
      context in which it has been used. In the case in<\/p>\n
      hand the word `ordinarily’ has been used in the<\/p>\n
      context      of     promotional            opportunities            of    the<\/p>\n
      Officers concerned. In such a situation the word<\/p>\n
      `ordinarily’        has    to     be      construed         in    order    to<\/p>\n
                                       2<\/span>
\n      fulfill the statutory intent for which it has been<\/p>\n
      used.\n<\/p>\n<\/p>\n
43. The word `ordinarily’, of course, means that it<\/p>\n
      does not promote a cast iron rule, it is flexible<\/p>\n
      (See Jasbhai Motibhai Desai vs. Roshan Kumar, Haji<\/p>\n
      Bashir Ahmed and Others<\/a> – (1976) 1 SCC 671, at<\/p>\n
      page 682 (para 35).                It excludes something which<\/p>\n
      is     extraordinary          or       special    [Eicher       Tractors<\/p>\n
      Limited,       Haryana       vs.       Commissioner       of    Customs,<\/p>\n
      Mumbai<\/a> – (2001) 1 SCC 315, at page 319 (para 6)].<\/p>\n
      The    word    `ordinarily’            would   convey     the   idea   of<\/p>\n
      something which is done `normally’ [Krishan Gopal<\/p>\n
      vs. Shri Prakashchandra and others<\/a> – (1974) 1 SCC<\/p>\n
      128,    at     page     134    (para       12)]     and    `generally’<\/p>\n
      subject       to   special     provision         [Mohan    Baitha      and<\/p>\n
      others vs. State of Bihar and another – (2001) 4<\/p>\n
      SCC 350 at page 354].\n<\/p>\n<\/p>\n
44.        Concurring       with    the       aforesaid       interpretative<\/p>\n
      exercise, we hold that the statutory duty which is<\/p>\n
      cast    on     the    State        Government     and     the    Central<\/p>\n
      Government to undertake the cadre review exercise<\/p>\n
                                         2<\/span>
\n    every five years is ordinarily mandatory subject<\/p>\n
    to exceptions which may be justified in the facts<\/p>\n
    of a given case. Surely, lethargy, in-action, an<\/p>\n
    absence of a sense of responsibility cannot fall<\/p>\n
    within category of just exceptions.<\/p>\n
45. In the facts of this case neither the appellants<\/p>\n
    nor the State of U.P. has justified its action of<\/p>\n
    not undertaking the exercise within the statutory<\/p>\n
    time frame on any acceptable ground. Therefore,<\/p>\n
    the delayed exercise cannot be justified within<\/p>\n
    the meaning of `ordinarily’ in the facts of this<\/p>\n
    case. In the facts of the case, therefore, the<\/p>\n
    Court holds that there was failure on the part of<\/p>\n
    the       authorities       in       carrying    out     the   timely<\/p>\n
    exercise of cadre review.\n<\/p>\n<\/p>\n
46. In    a   somewhat     similar         situation,   this    Court   in<\/p>\n
    Union of India and Ors. vs. Vipinchandra Hiralal<\/p>\n
    Shah<\/a>      –   (1996)        6    SCC     721,    while     construing<\/p>\n
    Regulation      5      of       the     I.A.S.   (Appointment        by<\/p>\n
    Promotion)       Regulations,            1955    held      that     the<\/p>\n
    insertion of the word `ordinarily’ does not alter<\/p>\n
                                     2<\/span>
\n      the     intendment       underlying         the     provision.         This<\/p>\n
      Court in that case was considering the provision<\/p>\n
      of     Clause     (1)    of     Regulation          5    of     the     IPS<\/p>\n
      (Appointment by Promotion) Regulations along with<\/p>\n
      other      provisions            of        Regulation           5.     The<\/p>\n
      interpretation          which       this    Court        gave    to     the<\/p>\n
      aforesaid two Regulations was that the Selection<\/p>\n
      Committee shall meet at an interval not exceeding<\/p>\n
      one year and prepare a list of members who are<\/p>\n
      eligible for promotion under the list. The Court<\/p>\n
      held that this was mandatory in nature.<\/p>\n
47.    It was urged before this Court that the insertion<\/p>\n
      of the word `ordinarily’ will make a difference.<\/p>\n
      Repelling       the    said     contention,       this        Court    held<\/p>\n
      that    the     word    `ordinarily’         does       not    alter   the<\/p>\n
      underlying intendment of the provision. This Court<\/p>\n
      made it clear that unless there is a very good<\/p>\n
      reason for not doing so, the Selection Committee<\/p>\n
      shall meet every year for making the selection. In<\/p>\n
      doing     so,    the     Court        relied      on     its    previous<\/p>\n
      decision in Syed Khalid Rizvi vs. Union of India –<\/p>\n
      1993 Supp. (3) SCC 575.                 In that case the Court<\/p>\n
                                      2<\/span>
\n    was considering Regulation 5 of the Indian Police<\/p>\n
    Service     (Appointment    by     Promotion)   Regulations,<\/p>\n
    1955 which also contained the word `ordinarily’.<\/p>\n
    In   that   context   the   word    `ordinarily’   has    been<\/p>\n
    construed as:\n<\/p>\n<\/p>\n
                               “…….since   preparation
\n                            of the select list is the
\n                            foundation for promotion
\n                            and its omission impinges
\n                            upon         the    legitimate
\n                            expectation of promotee
\n                            officers                    for
\n                            consideration        of   their
\n                            claim for promotion as
\n                            IPS          officers,      the
\n                            preparation of the select
\n                            list must be construed to
\n                            be          mandatory.      The
\n                            Committee               should,
\n                            therefore,        meet    every
\n                            year       and   prepare    the
\n                            select        list    and    be
\n                            reviewed and revised from
\n                            time         to     time     as
\n                            exigencies demand.”\n<\/p><\/blockquote>\n
48. The same logic applies in the case of cadre review<\/p>\n
    exercise also.\n<\/p>\n<\/p>\n
49. Therefore, this Court accepts the arguments of the<\/p>\n
    learned counsel for the appellants that Rule 4(2)<\/p>\n
                                2<\/span>
\ncannot       be    construed        to    have     any     retrospective<\/p>\n
operation and it will operate prospectively. But<\/p>\n
in the facts and circumstances of the case, the<\/p>\n
Court can, especially having regard to its power<\/p>\n
under       Article      142     of       the     Constitution,        give<\/p>\n
suitable          directions     in       order     to     mitigate    the<\/p>\n
hardship and denial of legitimate rights of the<\/p>\n
employees.         The   Court      is    satisfied      that    in   this<\/p>\n
case        for    the    delayed         exercise       of     statutory<\/p>\n
function          the    Government        has     not     offered      any<\/p>\n
plausible explanation. The respondents cannot be<\/p>\n
made in any way responsible for the delay. In such<\/p>\n
a    situation,          as    in        the     instant      case,     the<\/p>\n
directions given by the High Court cannot be said<\/p>\n
to     be    unreasonable.           In    any     event      this    Court<\/p>\n
reiterates those very directions in exercise of<\/p>\n
its power under Article 142 of the Constitution of<\/p>\n
India subject to the only rider that in normal<\/p>\n
cases the provision of Rule 4(2) of the said Cadre<\/p>\n
Rules cannot be construed retrospectively.<\/p>\n
                                 2<\/span>\n<\/p>\n
50. With    the   aforesaid   modification\/direction,   the<\/p>\n
    appeals filed by the Union of India are disposed<\/p>\n
    of. There shall be no order as to costs.<\/p>\n
                              …………………..J.\n<\/p>\n
                              (R.V. RAVEENDRAN)<\/p>\n
                              …………………..J.\n<\/p>\n
                              (ASOK KUMAR GANGULY)<\/p>\n
New Delhi
\n                      March 23, 2010<\/p>\n
                              3<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Union Of India & Anr vs Hemraj Singh Chauhan & Ors on 23 March, 2010 Author: Ganguly Bench: R.V. Raveendran, Asok Kumar Ganguly 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-45682","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nUnion Of India & Anr vs Hemraj Singh Chauhan & Ors on 23 March, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/union-of-india-anr-vs-hemraj-singh-chauhan-ors-on-23-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Union Of India & Anr vs Hemraj Singh Chauhan & Ors on 23 March, 2010 - 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