India & ANR. Vs. Hemraj Singh Chauhan & Ors.  INSC 202 (23 March
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)
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.
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
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
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.
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").
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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
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
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.
In order to resolve the controversy in this case, the relevant statutory
provisions may be noted.
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;"
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."
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
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.
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:
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:
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
Another regulation relevant in this connection is Indian
Administrative Service (Cadre) Rules, 1954 (hereinafter referred to as, `the
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.
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.
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
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."
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).
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.
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.
shall, therefore, be grateful if you could look into the matter 1 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
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
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."
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
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
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
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
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.
However, from the discussion made hereinbefore, the following
things are clear:
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;
Neither the appellants nor the State Government has given any plausible
explanation justifying the delay in Cadre review;
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;
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.
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.
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.
guarantee of a fair consideration in matters of promotion under Article 16
virtually flows from guarantee of equality under Article 14 of the
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).
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.
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.
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.
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
`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].
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.
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
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.
It was urged before this Court that the insertion of the word
`ordinarily' will make a difference.
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'.
context the word `ordinarily' has been construed as:
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."
The same logic applies in the case of cadre review exercise also.
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.
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)