S. Ramanathan
Vs. Union of India & Ors [2000] INSC 625 (7 December 2000)
G.B.Pattanaik
L.I.T.J
PATTANAIK,J.
In
these appeals as well as the writ petition, filed under Article 32 of the
Constitution of India, a common question of law arises for consideration. The
appellants are State Police Service Officers, who have been promoted to the
Indian Police Service. The sole grievance of theirs in these matters is that
inaction on the part of the Competent Authority to have triennial review,
whether entitles the appellants to have a mandamus from the Court to have a
review, in accordance with law and the consequential directions for
reconsideration of the appellants for promotion to the post of Indian Police Service
from an anterior date. The tribunal in the impugned judgment, though came to
the conclusion that there has not been a triennial review for re-determination
of the cadre strength, in accordance with the statutory provisions, but refused
to issue mandamus, on a finding that no prejudice thereby has been caused to
the appellants, and as such the appellants are not entitled to the issuance of
mandamus from the Court.
The
Central Government, in consultation with the State Governments as well as the
Union Public Service Commission, made the Regulation in exercise of powers
under sub-rule (1) of Rule 9 of the Indian Police Service (Recruitment) Rules,
1954 [hereinafter referred to as the Recruitment Rules] and a set of
Regulations called the Indian Police Service (Appointment by Promotion)
Regulations, 1955 [hereinafter referred to as the Promotion Regulations]. The
Central Government also in exercise of powers conferred under sub-section(1) of
Section 3 of the All India Services Act, 1951 [hereinafter called the Act] in
consultation with the State Governments, framed a set of Rules called the
Indian Police Service (Cadre) Rules, 1954 [hereinafter referred to as the Cadre
Rules]. Rule 4 of the Cadre Rules, defines the strength of the cadre to mean:
Rule
4. Strength of Cadres. : (1) The strength and composition of each of the cadres
constituted under rule 3 shall be as determined by regulations made by the
Central Government in consultation with the State Governments in this behalf
and until such regulations are made shall be as in force immediately before the
commencement of these rules.
(2)The
Central Government shall, at intervals of every three 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 the State
Government concerned may add for a period not exceeding one year and with the
approval of the Central Government for a further period not exceeding two
years, to a State or Joint Cadre one or more posts carrying duties or responsibilities
of a like nature to cadre posts.
Sub-rule
(2) of Rule 4, as aforesaid makes it obligatory on the part of the Central
Government to re-determine the strength and composition of each cadre at
intervals of every three years. Notwithstanding the aforesaid provisions,
contained in sub-rule (2), the proviso to said sub-rule empowers the Central
Government to alter the strength and composition of any cadre at any other
time.
The
aforesaid Cadre Rules, more particularly, sub-rule (2) thereof was amended on
10th of March, 1995 and by such amendment, in place of the expression at the
intervals of every three years, the expression ordinarily at the interval of
every five years was substituted. We are however concerned in the case in hand
with pre-amended provisions. Under the Promotion Regulation, when select lists
are prepared, the substantive vacancies anticipated in course of the period of
12 months commencing from the date of preparation of the lists are taken into
account. The Cadre strength determined under the Cadre Rules, plays an
important role inasmuch as the number of members of the State Police Service,
included in the list will not be more than twice the number of substantive
vacancies anticipated in the course of period of 12 months, as provided under
Regulation 5 of the Promotion Regulation. The procedure for preparation of the
list has been succinctly indicated in the aforesaid Promotion Regulation. This
being the statutory provisions, the question for consideration is whether
infraction on the part of the appropriate authority, in the matter of discharge
of its obligation in relation to the determination of cadre, entitles an
employee to obtain a mandamus from the Court, requiring the appropriate
authority to discharge their obligation in accordance with law and consequently
to redetermine the case of these appellants in respect of those vacancies which
were found to be available by the competent authority itself. It transpires
from the records of these appeals that the Central Administrative Tribunal, Madras Bench disposed of two applications
O.A.No.1082/91 and O.A.No. 1125/91, and came to the conclusion that the
triennial review required under Rule 4(2) of the Cadre Rules had been carried
out in March, 1979 and the next review was due in March, 1982 but in fact the
Cadre Strength had been reviewed in the year 1984 and by such review, seven
more posts have been added to the promotion quota in the State of Tamil Nadu.
The Tribunal, therefore, directed the appropriate authority to re-consider the
case of promotion of the officers of the said Cadre on the basis of the
increased cadre strength for the inclusion of their names in the select list
for the year 1984.
Against
the aforesaid judgment of the Central Administrative Tribunal, the Union of
India had approached this Court, which however was dismissed after hearing the
parties by order dated 13.11.1997 and though, no reasons had been ascribed, but
the said order appears to be a decision on merits, affirming the conclusion of
the Tribunal.
It is
contended by Shri P.P.Rao, the learned senior counsel for the appellants and Shri
P.N.Mishra, learned senior counsel, appearing for the writ petitioners that the
next triennial review was due in the year 1987 but this exercise was initiated
by Notification in the year 1989 and finally, the cadre strength was reviewed
in the year 1991 with a finding that there has been an increase in the cadre
strength. In view of such increase in the cadre strength, the chances of
promotion of the appellants to the post of Indian Police Service from an
earlier point of time, stood accelerated and, therefore, they approached the
Tribunal for appropriate directions. The Tribunal, however, following the
judgment of this Court in the case of R.R.S.Chouhan and and on an analysis of the
factual position, being of the opinion that no prejudice has been caused,
refused to issue any mandamus and hence these appeals. It may be stated that
not only the decision of the Central Administrative Tribunal, Madras was
assailed in this Court by filing special leave petition, which stood dismissed,
as already stated, but also the Central Administrative Tribunal, Ernakulam
Bench, Cuttack Bench and Gauhati Bench took identical decisions, which not
being assailed, reached finality. The effect is that four different Benches of
the Central Administrative Tribunal have issued directions to the Central
Government as well as to the concerned State Governments to hold triennial
review and reconsider the case of promotion of the said Cadre of Police Service
Officers and such decisions have been implemented without any murmur.
Mr. Rao
and Mr. Mishra, the learned senior counsel, appearing for the appellants
contended with vehemence that when statutory rules and regulations provide for
something to be done in the matter of review of cadre strength within a
specified period, law enjoins on such authorities to enforce the concerned
provisions and to review the cadre strength and failure on their part to review
the cadre strength, entitles the appellants to have a mandamus from the Court
for such appropriate decisions and directions in the matter of consideration of
the case of the appellants on the basis of the changed cadre strength. Mr. Rao
also further submitted that the language used in Rule 4(2), leaves no room for
doubt that it was incumbent on the Central Government to have a cadre review
every three years, which was in force till 1995 and the substitution of the
said words by the expression will not give the authority with an unlimited
power not to take up the question of triennial review and such a view cannot be
accepted by any Court. According to Mr. Rao, the expression ordinarily would
also mean within a reasonable period and in the case in had, in fact there has
been no explanation at all, coming from the Union of India as to why the
triennial review could not be held in due time in the year 1987.
Dr.
Rajeev Dhawan, the learned senior counsel, appearing for the respondents-direct
recruits, learned Additional Solicitor General Mr. Mukul Rohtagi, appearing for
the Union of India and Mr. A.Mariarputham, Mrs. Aruna Mathur and Mr. Anurag Mathur,
appearing for the State of Tamil Nadu, on the other hand contended that there
has been no definite prayer before the Tribunal seeking a mandamus for having a
triennial review in accordance with the relevant provisions of the Cadre Rules
and that being the position, the appellants will not be permitted to raise the
matter after so many years, which would have the effect of unsettling the
settled questions. It was also contended that the appellants having failed in
their attempt to get the select list altered, have now come forward through a
subterfuge and the discretionary jurisdiction of the Court should not be
invoked for that purpose. Mr. Rohtagi, the learned Additional Solicitor
General, though candidly stated before us that the appropriate authority should
have done the triennial review for fixation of the cadre strength within the
time stipulated in the cadre rules, but vehemently objected for any such
direction being issued for re-consideration of the case of the appellants, more
so when the appellants have not approached the Tribunal diligently.
According
to the learned Additional Solicitor General the tribunal has rightly considered
the question of prejudice and has denied the relief sought for. The learned
Additional Solicitor General also urged that the situation which should have
been made available in 1987 on the basis of the cadre strength, cannot be
brought back by a direction for re-consideration and in that view of the
matter, neither the equity demands such a direction nor it would be appropriate
for this Court to unsettle the settled service position. But to our query, as
to how the orders of different tribunals on identical situations could be
carried out without any demur, the learned Additional Solicitor General was not
in a position to give any reply. It also transpires from the available records
that the Union of India, no-where has even indicated as to how it would be
unworkable if a direction is issued by this Court for re-consideration of the
case of promotion to the IPS Cadre on the basis of the additional vacancies
which have been found to be available. It would, therefore be not appropriate
for this Court to deny the relief to the appellants on the ground of
apprehended administrative chaos, if the appellants are otherwise entitled to
the same.
It is
no doubt true that while exercising the discretionary jurisdiction, Courts
examine the question of administrative chaos or unsettling the settled
position, but in the absence of any materials on record, the Court should not
be justified in accepting the apprehension of any administrative chaos or
unsettling the settled position, on the mere oral submission of the learned
Additional Solicitor General, without any materials in support of the same. On
examining the records of the case, we do not find an iota of material,
indicating the so-called administrative chaos, likely to occur in the event any
direction is issued for re- consideration of the case of promotion on the basis
of the alteration of the cadre strength and, therefore, we have no hesitation
in rejecting the said submission of the learned Additional Solicitor General.
The
question, therefore arises for consideration is as to what is the effect of Rule
4(2) of the Cadre Rules as it stood prior to its amendment in the year 1995 and
if there has been an infraction in the matter of compliance of the said rule,
what direction could be given to the appropriate authority? The Cadre Rules are
statutory in nature, having been framed by Central Government in exercise of
powers under sub- section(1) of Section 3 of the All India Services Act, 1951.
The language of sub-rule(2) of Rule 4, as it stood prior to its amendment is
rather peremptory in nature and thus it requires that the Central Government
has to re-examine the strength and composition of each cadre in consultation
with the State Government concerned and make such alteration therein as it
deems fit. It is no doubt true that an infraction of the aforesaid provisions
does not confer a vested right with an employee for requiring the Court to
issue any mandamus. But it cannot be denied that if there has been an
infraction of the provisions and no explanation is forth-coming from the
Central Government, indicating the circumstances under which the exercise could
not be undertaken, the aggrieved party may well approach a Court and a Court in
its turn would be well within its jurisdiction to issue appropriate directions,
depending upon the circumstances of the case. When certain power has been
conferred upon the Central Government for examining the cadre strength,
necessarily the same is coupled with a duty to comply with the requirements of
the law and any infraction on that score cannot be whittled down on the hypothesis
that no vested right of any employee is being jeopardised. The learned
Additional Solicitor General is not in a position to refute the fact that in
the event, the cadre strength, which has in fact increased in the year 1991 is
taken into account, then in the matter of determination on the question of
promotion, some additional advantage could be available to the employees in the
erstwhile State Cadre, who have been considered for promotion to the Indian
Police Service. That apart when Rules and Regulations provide for certain
things to be done at a certain period, the same should normally be observed and
if there has been a failure, the Court should compel the performance of that of
India and Ors., 1993 Supp.(3) SCC 575, a three Judge Bench of this Court had
examined the provisions of the IPS (Regulations of Seniority) Rules, 1994 and
other provisions of the Recruitment Rules, Cadre Rules and Appointment by
Promotion Regulation and it was observed:
The
leeway and liberty given to the State Government under Regulation 8 of
Promotion Regulations read with Rule 9 of the Cadre Rules is only to cope up
with administrative exigencies but it became a breeding ground to distort the
operation of the Rules which should scrupulously be eschewed and avoided.
The
Court examined in the aforesaid case the question whether the failure to
prepare the select list would give rise to an inference that rules have been
collapsed and the State Governments local arrangement shall be given legitimacy
as regular appointments. After giving anxious consideration to the end
resultants, the Court had found it hard to accept the same. The Court observed
that the State Government and the Central Government should strictly comply
with the provisions in making Recruitment by promotion from the State Service
to the All India Services and if laxity has to be given legitimacy and deemed
relaxation is extended, it would not only upset the smooth working of the rules
but also undo the prescribed ratio between promotee officers and direct recruits.
It is in that context, the Court ultimately issued certain directions to be
complied with by the Central Government, after taking objections from the promotees
who were included in the notional list for different years. The aforesaid decision,
no doubt is in relation to the placement of an employee in the select list and
has no direct application to the case in hand, but the observations made with
regard to performance of duties of a statutory authority should equally apply
to the case in hand. The impugned judgment of the tribunal proceeds on the
assumption that the decision of this Court in R.R.S.Chouhan 109, which was a
decision in relation to an officer of the Indian Forest Service governs the
field. In that case, the Court was examining the question whether an officer
even if was continuously officiating on a senior post, can avail of the benefit
of the said officiation in view of the fact that in the subsequent select list,
the names of those officers have not been included. The aforesaid decision is
of no assistance to us in the present case where the question for consideration
is, when the Competent authority fails to discharge its obligation, conferred
under the statute, could the Court compel the authority for such performance
and if so, what would be the mode of relief to be given, depending upon the
facts and circumstances of each case. In the case Ministry of Information and
Broadcasting, New Delhi and Ors., 1989 Supp.(1) SCC 147, on which, Dr. Dhawan
had placed reliance, the Court was considering the question of up-gradation of
posts and the seniority and promotion to those posts on the basis of length of
continuous service.
The
Court in fact had observed that the incumbents have not to suffer for the lapse
on the part of the Government in delay in amending the Schedule to the Rules.
We fail to understand, as to how this decision will be of any assistance to us
in arriving at an appropriate conclusion on the question involved. Dr. Dhawan,
had strongly relied upon the decision of this Court in R.S. Mittal vs. Union of
India, 1995 Supp.(2) SCC 230, whereunder this Court having come to the
conclusion that the Central Governments approach was wholly unjustified, yet
refused to grant the relief to the applicant in the peculiar facts of the case.
But
the relief, which has been sought for in the present appeals, namely a
direction to the Union Government to re-consider the question of promotion to
the Indian Police Service on the basis of their own fixation of cadre strength,
which they did in the year 1991, though it was supposed to have been done in
the year 1987. The general principles, as indicated in the Mittals case, will
have no application, particularly when the Union Government is totally silent
in the matter of indicating the effect of such a direction. The decision of
this Court in T.N.Administrative Service Officers Assn. and anr. vs.
Union
of India and Ors., 2000(5) SCC 728, was also brought to our notice, in support
of the contention that mere delay in undertaking the review will not ipso facto
entitle an employee to get a writ of mandamus from the Court. But in that case,
Court was considering the infraction of Rule 4 of the IAS Cadre Rules and
undoubtedly, there has been delay in undertaking such review and consequential
delay in preparation of select list but that delay was found to have been
sufficiently explained by the Union Government and that, therefore, the Court
said that the question of fixation of seniority of the promotees with
retrospective effect cannot be granted. In the case in hand, in the absence of
any explanation for not conducting the triennial review within the specified
period of three years, the aforesaid decision will have no application. The
decision of this Court in Ramesh Chand Sharma vs. Udham Singh Kamal and Ors.,
1999(8) SCC 304, was also pressed into service in support of the contention
that the appellants had approached the tribunal beyond limitation, provided
under Section 19 and, therefore are not entitled to invoke the jurisdiction of
this Court under Article 136, even if there has been an infraction of the
statutory obligation, which lay on the authority to have the triennial review.
We are not persuaded to accept this submission inasmuch the appellants
approached the tribunal, the moment the competent authority re-determined the
cadre strength in the year 1991, and, therefore, it cannot be said that there
has been latches on the part of the appellants to approach the administrative
tribunal. One other decision, which may be noticed at this State of Bihar and Ors., 1996(11) SCC 342, to
which one of us, Pattanaik, J was a party. In that case, the appropriate
authority had committed error in not preparing the select list for a particular
year and pursuant to a direction of this Court the employees name was included
in the select list of a later year and ultimately this Court observed that the
select list in question must be held to be of the relevant year, where-in on
account of error committed by the appropriate authority the name could not be
included. This indicates that the Court has been insisting performance of duty
upon the authority under the statute quite meticulously and on the admitted
position that the process of determining the cadre strength was initiated in
the year 1989 and it was finalised in the year 1991, there is no rhyme and
reason why the respondents will not be directed to reconsider the question on
the basis of the altered strength of the cadre, as if it was so altered in the
year 1989 when the process of determination of cadre strength was initiated.
We, accordingly set aside the impugned orders of the tribunal and direct the
Union Government as well as the State Government to reconsider the question of
promotion of the State Cadre Officers to the Indian Police Service on the basis
of the re-determined strength of the cadre, treating the same to be in the year
1989 and if on such a re-consideration relief would be available to any of the
appellants for promotion to the IPS on the basis of the quota available to them
in the cadre, the same may be given to them. This exercise may be done within a
period of six months from the date of receipt of this order. These appeals and
the writ petition are disposed of accordingly.
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