Full Judgment
HON'BLE MR. GEORGE PARACKEN, JUDICIAL MEMBER
The applicant is aggrieved by the Annexure A-21 notification dated 5.7.2007 issued by the 1st respondent, namely, the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training in consultation with the 2nd respondent, namely, the State Government of Kerala amending the Indian Administrative Service (Fixation of Cadre Strength) Regulations 1955 for the heading Kerala and enhancing the Senior Duty Posts to 116 and the total authorised strength to 214.in exercise of the powers conferred by sub section (1) of Section 3 of the All India Services Act, 1951 (61 of 1951), read with sub rule (2) of rule 4 of the Indian Administrative Service (Cadre) Rules, 1954, (the Central Government).
2. The applicant was a substantive member in the cadre of Deputy Collector who was eligible to be considered for selection and appointment to the Indian Administrative Service (IAS for short)(Kerala Cadre) under Rule 5 of the IAS (Appointment by Promotion) Regulations, 1955 (in short Regulations 1955). He completed 54 years of age as on 14.10.2005 and was due for retirement from State Service on superannuation on 31.10.2006. His position in the seniority list of Deputy Collectors for the period from 25.9.1962 to 31.12.1996 published by G.O.(P)783/97/RD dated 21.10.1997 was at 635. According to him, the Selection Committee Meeting for selection and appointment in terms of Rule 5 of Regulations 1955 was held in the year 2004 and one Mr A Shajahan at rank No.556 was appointed to IAS (Kerala) cadre (Promotion Quota) by notification dated 29.4.2005. For the year 2005, 4 substantive vacancies were assessed as on 1.1.2005 to be filled up under promotion quota and his name was at Sl.No.11 in the zone of consideration. However, in none of the meetings, he was considered as his name was not included in the zone of consideration.
3. He has submitted that under Rule 4(1) of the IAS (Cadre) Rules, 1954 the cadre strength is required to be determined by regulations by Central Government in consultation with the State Government and under Rule 4(2) thereof the review of the strength and composition of the cadre were to be undertaken after every three years. The said provisions of the Rules reads as under:
"4. Strength of Cadres: -(1) The strength and composition of each of the cadres constituted under Rule 3 shall be determined by regulations made by the Central Government in consultation with the State Government 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 the interval 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 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 of Joint Cadre one or more posts carrying duties or responsibilities of a like nature to cadre posts."
For the effective implementation of the aforesaid provisions, he has also referred to the letter of Government of India, Ministry of Home Affairs No. 6/10/68-AIS(II), dated 27.2.1968 issued to the State Governments directing them to adhere to the time schedule for the amendment of the cadre schedule on time which reads as under:
"Rule 4 of the Cadre Rules provides for a review of the strength and composition of the cadre at the interval of every three years. The State Governments are, therefore, requested to sponsor their triennial review proposals after taking into consideration their requirements at least for 3 years to avoid frequent proposals for amendments to the cadre schedule. However, cases where changes in the cadre are considered unavoidable and cannot be delayed till the next triennial review, in such circumstances proposals may be made once in a year i.e. in the month of January. The State Governments are therefore, requested to adhere to this procedure for proposing amendments to the cadre schedule."
The said provisions were later on amended in the year 1995 to make the review quinquennial (after every five years) and they read as under:
"4(1) Strength of Cadres: The strength and composition of each of the cadres constituted under rule 3 shall be 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.
4(2) The Central Government shall, [ordinarily] at the interval of every [five] years, re-examine the strength and composition of each such cadre in consultation with the State Government or the State Governments concerned and may make such alterations therein as it deems fit: Provided that nothing in this sub-rule shall be deemed to affect the power of the Central Government to alter the strength and composition of any cadre at any other time: Provided further that State Government concerned may add for a period not exceeding two year [and with the approval of the Central Government for a further period not exceeding three years,] to a State or Joint Cadre one or more posts carrying duties or responsibilities of a like nature to cadre posts."
4. According to the applicant, since the last quinquennial cadre review in IAS (Kerala cadre) was held in year 1999 and notified the authorised strength as 178, having promotion quota posts of 54 and the senior duty posts of 97, vide Annexure A-1 notification dated 10.6.1999, the next cadre review was due on 1.1.2004 with an outer limit as on 10.6.2004 and the necessary statutory notification refixing the cadre strength should have been issued by that time. However, the State Government did not adhere to the time schedule, despite repeated reminders sent by the Do PT, as was discernible from the proceedings made vide letter No.11031/10/2004, AIS(II) dated 27.12.2004 (Annexure A-16). Thus, there was a tacit slackness on the part of the State Government as they have forwarded the proposal of quinquennial review to the Union Government only on 20.10.2005 proposing enhancement of the senior posts from 97 to 130 thereby increasing the total strength to 217 including Central deputation reserve of 40%, State deputation reserve of 25% and training reserve of 3.5%. Accordingly, the posts to be filled by promotion and selection under the Rule 8 of the IAS Recruitment Rules, 1984 at the rate of 33 1/3% would have become 72 and 15% of posts thereof i.e. 10 posts were to be filled up by selection from other departments and the remaining 62 posts were to be filled up by the members of State Civil Service, instead of the present 46 posts. The applicant has, therefore, vide Annexure A-3 representation, requested the 2nd respondent, as early as 24.10.2005, not to convene the Selection Committee Meeting till the final notification on quinquennial review of cadre strength was issued by the Central Government. Though there was protracted correspondence between 1ast and 2nd respondents, yet it was only by the impugned Annexure A-21 dated 5.7.2007, the first respondent has issued the final notification enhancing the Senior Duty Post from 97 to 116 with prospective effect. According to the applicant, if the additional 10 vacancies were added with the 4 vacancies arose on the 1st January 2005, the total vacancies to be filled up as on 1.1.2005 would have been 14 and the applicant would deemed to have been selected as on 1.1.2005. He has, therefore, contended that the respondents ought to have conducted a review selection under the provisions of IAS (Appointment by Promotion) Regulation 1955 by considering the eligible candidates. As the applicant's aforesaid representation was not considered by the respondents, he has filed this O.A seeking the, following reliefs/interim reliefs:
"(i) To direct the respondents to convene the Selection Committee under Rule 5 of IAS ( Appointment by Promotion) Regulation, 1955 to fill up 10 substantive vacancies as on 1.1.2004 for promotion quota and to consider the claim of the applicant for inclusion in the select list against 10 posts as on 1.1.2004.
(ii) To declare that the applicant is qualified and eligible for selection and appointment to IAS (Kerala) cadre against one of the 10 vacancies arose consequent on Quinquennial Cadre Review as on 1.1.2004 and to consider his claim for Selection under Rule 5 of IAS (Appointment by promotion) Regulation against those posts.
(iii) To declare that there are 16 substantial vacancies available for promotion in IAS (Kerala) cadre consequent on quinquennial cadre review as on 1.1.2004 and to consider the eligible candidates for selection under promotion quota by conducting review selection committee for the vacancies as on 1.1.2004.
(iv) To direct the respondents to conduct a proper need based quinquennial cadre review in IAS (Kerala) cadre and accordingly enhance senior post from 97 to 166 and to conduct review selection under the provision of IAS (Appointment by Promotion) Regulation 1955 by considering eligible candidates.
(v) To direct the first respondent Union of India to issue Notification under IAS (Fixation of Cadre Strength) Regulation 1955 enhancing the senior posts in the IAS (Kerala) Cadre from 97 to 130 as proposed by the 2nd respondent consequent on quinquennial Cadre Review forthwith.
(vi) Direct the respondents to keep one vacancy in IAS (Kerala) Cadre unfilled enabling the respondents to consider the claim of the applicant.
(v) To direct the respondents not to convene the Selection Committee for 4 vacancies only as on 1.1.2005.
(vi) Any other appropriate order or direction that this Tribunal deem fit in the interest of justice.
(vii) To call for the records leading to Annexure A-21 and declare that the Notification dated 5.7.2007 amending IAS (Fixation of Cadre Strength) VIIth Amendment Regulation 2007 for the heading Kerala and entries occurring thereunder enhancing senior duty post from 97 to 116 is taken effect from 10.6.2004.
(viii) To direct the respondents to consider the claim of the applicant for promotion to IAS(Kerala) Cadre as on 1.1.2005 against the substantive post arose consequent on cadre review."
Interim reliefs:
"(i) To stay the convening of the Selection Committee under I (Appointment by Promotion) Regulations as 1.1.2005 until the finalisation of Quinquennial Cadre Review as on 1.1.2004 as proposed by the State Government and the vacancies position is finalised as proposed by the State Government.
(ii) To direct that the completion of 54 year of age of the applicant as on 14.10.2005 shall not disentitle the applicant for consideration of selection for the vacancies that arose consequent on quinquennial cadre review due as on 1.1.2004.
(iii) To direct the 1st respondent to complete the process of quinquennial cadre review as proposed by the State Government and issue notification within one month."
5. Shri.P.V.Mohanan, learned counsel for the applicant had relied upon the judgments of the Apex Court in Syed Khalid Rizvi and others v. Union of India and others [1993 Suppl( 3) SCC 575], Union of India and others v. Vipinchandra Hiralal Shah [(1996) 6 SCC 721] and S.Ramanathan v. Union of India [ 2001 2 SCC 118] and this Tribunal's orders in the case of Jacob P Thomas v. Union of India, [1993 (24) ATC 196] and J.K.Champavat and L.H.Nathani v. Union of India [2000(2) (CAT) 155], and submitted that the provisions contained in sub Rule 4(2) of the I.A.(Cadre) Rules 1954 is mandatory and the Annexure A-21 notification dated 5.7.2007 enhancing the cadre strength shall be declared as having been taken effect from 10.6.2004 and the applicant is deemed to have been considered for the additional vacancy which have arisen as on 1.1.2005.
6. In Syed Khalid Rizvi's case (supra), the Supreme Court construing the provisions of Regulation 5 of the Indian Police Service (Appointment by Promotion) Regulations, 1954 which is in pari materia with clause(a) of the Indian Administrative Service (Appointment by Promotion) Regulation 1955 observed as under:
" ... since preparation of the select list is the foundation for promotion and its omission impinges upon the legitimate expectation of promotee officers for consideration of their claim for promotion as IPS officers, the preparation of the select list must be construed to be mandatory. The Committee should, therefore, meet every year and prepare the select list and be reviewed and revised from time to time as exigencies demand.
* * *
Unless the select list is made annually and reviewed and revised from time to time, the promotee officers would stand to lose their chances of consideration for promotion which would be a legitimate expectation. This Court in Mohan Lal Capoor case held that the Committee shall prepare every year the select list and the list must be submitted to the UPSC by the State Government for approval and thereafter appointment shall be made in accordance with the rules. We have, therefore, no hesitation to hold that preparation of the select list every year is mandatory. It would subserve the object of the Act and the rules and afford an equal opportunity to the promotee officers to reach higher echelons of the service."
7. In Vipinchandra Hiralal Shah's case (supra) the Apex Court followed the judgment in Syed Khalid Rizvi (supra) and held as under:
"10. In Syed Khalid Rizvi v. Union of India this Court was construing the provisions of Regulation 5 of the Indian Police Service (Appointment by Promotion) Regulations, 1955 which is in pari materia with clause (1) of Regulation 5 and contained the word 'ordinarily'. It was observed: (SCC pp. 586-605, paras 9-34)
" ... since preparation of the select list is the foundation for promotion and its omission impinges upon the legitimate expectation of promotee officers for consideration of their claim for promotion as IPS officers, the preparation of the select list must be construed to be mandatory. The Committee should, therefore, meet every year and prepare the select list and be reviewed and revised from time to time as exigencies demand.
* * *
Unless the select list is made annually and reviewed and revised from time to time, the promotee officers would stand to lose their chances of consideration for promotion which would be a legitimate expectation. This Court in Mohan Lal Capoor case held that the Committee shall prepare every year the select list and the list must be submitted to the UPSC by the State Government for approval and thereafter appointment shall be made in accordance with the rules. We have, therefore, no hesitation to hold that preparation of the select list every year is mandatory. It would subserve the object of the Act and the rules and afford an equal opportunity to the promotee officers to reach higher echelons of the service."
11. It must, therefore, be held that in view of the provisions contained in Regulation 5, unless there is a good reason for not doing so, the Selection Committee is required to meet every year for the purpose ofmaking the selection from amongst the State Civil Service officers who fulfil the conditions regarding eligibility on the first day of January of the year in which the Committee meets and fall within the zone of consideration as prescribed in clause (2) of Regulation 5. The failure on the part of the Selection Committee to meet during a particular year would not dispense with the requirement of preparing the Select List for that year. If for any reason the Selection Committee is not able to meet during a particular year, the Committee when it meets next, should, while making the selection, prepare a separate list for each year keeping in view the number of vacancies in that year after considering the State Civil Service officers who were eligible and fell within the zone of consideration for selection in that year."
8. In S.Ramanathan's case(supra), the Applicants were State Police Service officers who have been promoted to the Indian Police Service. Their grievance was against the in action on the part of the competent authority to have triennial cadre review in accordance with law and for the consequential direction for their reconsideration for promotion to the post of Indian Police Service from an anterior date. The Apex Court considered the issue and held as under:
"6. 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 the 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 forthcoming 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."
9. In Jacob P Thomas v. Union of India, [1993 (24) ATC 196], this Tribunal was considering the argument of the applicant that, as the last notification regarding fixing the cadre strength of the IPS Kerala Cadre was issued on 12.2.1988 the next triennial cadre review should have been completed and notified latest by 12.2.1990. The learned counsel relied upon Rule 4 of the IPS (Cadre) Rules, 1954 which required a triennial review of the cadre strength at intervals of every three years. After considering the aforesaid argument, this Tribunal held as under:
"19. Having considered the instructions of Government of India, one has now to consider whether the language used in Rule 4(2) compels one to reach a conclusion that the notification as a result of thetriennial review should be effective from the third anniversary of the earlier notification. The expression used in Rule 4(2) is "at intervals of every three years" which means that the interval between one fixation of cadre strength and another shall be 3 years, no more or no less. This is due to the fact that the expression "interval" is defined to mean "intervening time or space" in Concise Oxford Dictionary. If sub rule
(2) had stated that "after the expiry of 3 years" or "at intervals not less than 3 years" the Central Government shall examine the strength. etc. it would mean that the review can be made at any time after three years. Or, if the expression had been "the Central Government shall ordinarily at an interval of 3 years" or "at an interval not exceeding three years", etc., a certain amount of flexibility would have been available to complete it before three years. The expression "not exceeding three years" itself gives a flexibility within the three year limit, while the expression "ordinarily not exceeding three years" or "not less than 3 years" will permit crossing the 3 year limit on occasions. It is only necessary to point out that Regulation 5 of the Promotion Regulations states "each Committee shall ordinarily meet at intervals not exceeding one year" thus giving the intended flexibility while Rule 4(2) of the Cadre Rules is very precise and rigid and the language used does not give any latitude to the State or Central Government in this regard. Therefore, prima facie, the fresh notification after triennial review has to be issued at intervals of three years i.e. on the third anniversary of every preceding notification."
10. In J.K.Champavat and L.H.Nathani v. Union of India [2000(2) (CAT) 155] also the Tribunal was of the same view as in the case of Jacob P Thomas (supra) and held as under:
"16. (I) We however, find force in the contention of Mr Bhaya that on completion of the third anniversary of the earlier review, it is mandatory to conduct a review of cadre strength. He has relied upon the provisions of 4(2) of the IPS(Cadre) Rules and the judgment of Ernakulam Bench of Central Administrative Tribunal reported in the case of Jacob P Thomas v. Union of India. Rule 4(2) of the IPS (Cadre) Rules reads as follows: "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 Governments concerned and may make such alternations 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. (II) In para 26 of the judgment in Jacob Thomas case, the Tribunalhas made the following observations:
"26. The reasoning in that judgment may not apply to the present case and is distinguishable. Here the applicant's name stands included in the select list and is, therefore, eligible to be appointed to the IPS if a vacancy arises. He feels aggrieved because of the delay in not completing the triennial cadre review. The need for prompt and punctual cadre review arises from the fact that the framers of law had intended that the members of the All India Services and also those who have a right to be considered for appointment to that service, if a vacancy arose, should feel completely secure that the cadre strength will be reviewed periodically on time in accordance with law and the benefit thereof will be available to them automatically, without their being beholden to any political party or leader for this purpose. Hence from their point of view also Rule 4(2) of the Cadre Rules contains mandatory provisions of review which have to be followed strictly (emphasis supplied). Such persons have, therefore, a vested right to claim that the review be conducted in accordance with law on the due date."
This judgment has also been relied upon by the Madras Bench of the CAT in the case of C.Balasubramanium and Another v. U.O.I. (1994) 28 ATC 510. Even though Rule 5 of the IPS(Promotion) Regulation was amended in 1995 which changes the periodicity of the triennial review and also refer to the term ordinarily, the amendment can have only prospective effect. In this case, the earlier review was conducted in 1989 and the next triennial review ought to have been completed in 1992 and additional post should be deemed to have been created from1993. If such a review was conducted, some more additional posts under promotion quota would have been added from 1993. As observed by the Ernakulam Bench of the Tribunal:
"The expression "at intervals of every three years" means that the interval between one fixation of cadre strength and anothershall be 3 years, no more, no less. "Interval" means intervening time of space. Rule 4(2) does not use any of the expressions like "after the expiry of 3 years," "at intervals not less than three," "the Central Government shall ordinarily at an interval of 3 years" or "at an interval not exceeding three years." On the contrary, Regulation 5 of the IPS (Appointment by Promotion) Regulations, 1955 clearly uses the expression "each Committee shall ordinarily meet at intervals not exceeding one year," thus giving the intended flexibility. Rule 4(2) is however very precise and rigid and the language used not given any latitude to the State or Central Government in this regard. Therefore, fresh notification after triennial review had to be issued on third anniversary of every preceding notification."
(III) We enquired from the learned Standing Counsel for the Union of India and U.P.S.C as to whether the department has obtained any stayagainst the decision of the Tribunal in Jacob Thomas case. Mr Doctor submits that the matter has been taken up before the Hon'ble Supreme Court and is pending there but the Apex Court has not issued any stay against the Tribunal's order. In view of this, we have to follow the principle laid down by the Tribunal in Jacob Thomas case that in the context of the provisions of 4(2) of IPS (Cadre) Rules, as they stood there it was mandatory on the part of the respondents to have carried out the review exactly on completion of third anniversary of the preceding notification. In other words, the strength of the IPS cadre of Gujarat State should have eben revised on 26.11.1992. It is true that Rule 4(2) of the IPS (Cadre) Rules, since has been amended by the Union of India on 10.03.95 to provide that the cadre review shall ordinarily be done by the Central Government in consultation with the State Government at the interval of every 5 years (emphasis supplied). The amended rule, however, can have only prospective operation on and after 10.03.95. In the present case the revised cadre strength of IPS cadre of Gujarat should have been notified on 26.11.1992 when it fall due as per the Rule 4(2) as it stood prior to its amendment.
(IV) The applicant has contented that as per the orders notified on 26.11.89 Gujarat Cadre of IPS has 33 posts earmarked for promotion quota. With the review done in June, 1997 the cadre strength was increased and the number of promotion posts went upto 37, showing an increase of 4 posts. Mr Bhaya has argued that had the review been done in November, 1992, which is mandatory, there would have been 4 more posts against the promotion quota and the applicant would have been within the zone of consideration in the meeting held in 1995. It is not possible to straightaway conclude that if the review had taken place in November, 1992, the cadre strength including the promotion quota would have been the same as notified in June, 1997. However, it is reasonable to assume there would have been some increase in the posts in November, 1992 as compared to November, 1989.
(V) We, therefore, hold that it is mandatory on the part of the authorities to have reviewed the cadre strength of Gujarat IPS cadre on November 92 and if additional posts have been encadred the number of posts to be filled by promotion would have also gone up and the anticipated vacancies would have been worked out duly taking into account the additional newly created posts. So far as the present applicant is concerned, he has completed 8 years of service as Dy. S.P on 18.7.93. Regulation 5(2) of the IPS (Appointment by Promotion) Regulations requires that a member of the State Police Service should have completed not less than 8 years of continuous service as DSP or equivalent post on the first day of April of the year in which the select committee meets. The year for this purpose is the financial year as defined in Regulation 2(1)(1). Shri Nathani had thus not completed period of service when this select committee met on 23.03.1994, but had become eligible when the select committee met on 13.03.1995. However, he was not considered by the select committee which had met on 13.03.05 as in the context of the vacancies on the basis of promotion quota of 33 as per the notification of November 89, he was not coming within the zone of consideration. He was considered by the select committee which had met on 23.03.96 but he was not included in the select list."
11. The first Respondent, namely, Union of India represented by Secretary, Ministry of Personnel and Training, Department of Personnel and Training, in its reply submitted that a person is recruited to the IAS under Rule 4 of the "1954 Rules" from one of the following three sources :
a) through competitive examination ( i.e. direct recruitment)
b) by promotion of substantive member belonging to the State Civil Service; or
c) by selection of officers who hold in a substantive capacity gazetted posts in connection with the affairs of the State and belong to the services other than State Civil Service. The process of appointment of State Civil Service Officers is governed under the "Regulations, 1955" and it is to be initiated by the State Government with the determination of year wise vacancies. The process of preparation of select list begins with the names of State Civil Services/Non-State Civil Service Officers being forwarded by the State Government to the Union Public Service Commission for consideration by the Selection Committee. The minutes of the SCM are forwarded by the Commission to the State Government along with its observations on the recommendations of the Committee. The observations of the Central Government are also forwarded to the Commission thereon and final approval to the Select List is conveyed by the Commission to the Central Government. Thereafter, on receipt of Select List, appointments are made by the Central Government from the Select List on receipt of unconditional willingness for appointment to the IAS from the officers included in the Select List, accompanied by a declaration of marital status and also consent for termination of lien in the State Civil Service in the event of substantive appointment to the IAS. Accordingly, the Selection Committee for the selection of State Civil Service Officers for promotion to IAS cadre of Kerala determined three vacancies for the Select List year 2004, three vacancies for the Select List year 2005 and five vacancies for the Select List year 2006 in their meetings held on 30th December, 2004, 23rd October, 2006, and on 24th February, 2007 respectively and officers unconditionally included therein were appointed to IAS. In none of the said meetings, the name of the applicant was considered for promotion to IAS because his name was not included in the zone of consideration.
12. As regards the quinquennial cadre review of the IAS cadre of Kerala became due in June, 2004 was concerned, they have submitted that the proposal for such cadre review was forwarded by the State Government only in October, 2005. Thereafter, in consultation with the State Government, the review was carried out. The requisite clarifications sought from the State Government were received by the Central Government in January, 2007. The cadre review proposal of the IAS cadre of Kerala was discussed in a Cadre Review Meeting (CRC for short) meeting under the chairmanship of the Cabinet Secretary, with the representatives of both the Central Government and the State Government. The recommendations of the CRC were to increase the number of Senior Duty Posts from 97 to 116 and total authorized strength from 178 to 214 out of which 65 posts are meant to be filled by promotion. After detailed examination of the cadre review proposal as per the situation existing in the State as on the 1st January, 2007, a CRC meeting was held in June, 2007 and the relevant notification fixing the cadre strength of the IAS cadre of Kerala was issued on 5th July, 2007. The said notification was again re-notified on 16th August, 2007 as there were some errors in it.
13. They have relied upon the judgment of the Apex Court in T.N. Administrative Service Officers Association and another v. Union of India [(2000) 5 SCC 728] wherein the appellants were members of T.N and Haryana State Administrative Services who contended that on account of failure of the Central Government to timely review the cadre strength as statutorily required, their promotion got inordinately delayed and they lost their seniority in the promoted cadre. They have, therefore, claimed that their seniority shall be fixed with retrospective effect. The Apex Court, considering its various earlier judgments on the issue rejected the said contention and held as under:
"The prayer of the petitioners for encadrement of the ex- cadre/temporary posts in reality amounts to asking the Central Government to create more posts. The question then arises whether there is any such right in the petitioners to seek such creation of additional posts. It is a well-settled principle in service jurisprudence that even when there is a vacancy, the State is not bound to fill up such vacancy nor is there any corresponding right vested in an eligible employee to demand that such post be filled up. This is because the decision to fill up a vacancy or not vests with the employer who for good reasons; be it administrative, economical or policy, decide not to fill up such post(s). See The State of Haryana v. Subhash Chander Marwaha and Ors. [(1974) 3 SCC 220].This principle applies with all the more force in regard to the creation of new vacancies like by encadrement of new posts; more so when such encadrement or creation of new posts is statutorily controlled. We have noticed earlier that the Cadre Regulations and the Recruitment Rules require the Central Government to follow a particular procedure and make necessary consultations before fixing or re-fixing the cadre strength. In such a situation, issuance of a mandamus to increase the cadre strength or to encadre a particular post merely on the basis of long existence of these posts would be inappropriate."
14. The 2nd respondent, namely, the State Government in its almost identical reply submitted that the applicant attained age of 54 years on 14. 10.2005 and retired on superannuation 31.10.2006. The SCMs against 3 vacancies each determined for the select list years 2004 and 2005 were held on 30th December, 2004 and 23rd October 2006 respectively and the SCM against 5 vacancies for the Select List year 2006 was held on 24th February, 2007 but in none of those meetings the name of the applicant was considered because of his lower inter-se seniority.
15. As regards the quinquennial cadre review of the l AS Cadre of Kerala which became due in June, 2004 was concerned, they have submitted that any increase or decrease in the cadre strength is made as per the administrative requirements in order to provide good governance to the public and the Cadre reviews are not meant merely to provide promotional avenues to the eligible officers. Further, as per the amended provisions contained in Rule 4 (2) of the IAS (Cadre) Rules, 1954, holding the cadre reviews at the interval of every 5 years is no more mandatory. The first proviso to the said Rule also further provides that nothing in said sub -Rule shall be deemed to affect the power of the Central Government to alter the strength and composition of any cadre at any time. They have also relied upon the judgment of the Hon'ble Supreme Court in T.N.Administrative Service Officers Association and another (supra) wherein it has been observed that the petitioners have no right to demand creation of new posts or the encadrement of posts merely by virtue of some posts having been in existence for long time. The encadrement has to be done only after being satisfied that it is necessary in the interest of State concerned. If such encadrement take place, nobody can stake a claim to the promotion of posts. The right of promotion will arise only from the date of encadrement and the petitioners can not claim retrospective seniority as a matter of right.
16. We have heard the learned counsel on both sides. The main thrust of the argument of Shri P.V.Mohanan, learned counsel for the applicant was that the quinquennial cadre review as on the due date of 1.1.2004 was mandatory and the failure on the part of the respondents to notify the revised strength of the cadre before the due date cannot be condoned. According to him, since the quinquennial cadre review was not held on or before the due date of 1.1.2004 or within its outer limit of 10.6.2004, the applicant was deprived of his right of consideration for selection and appointment to IAS (Kerala) cadre against the additional 10 posts which have been notified later on 5.7.2007. In other words, his contention is that the 10 additional posts notified on 5.7.2007 actually belonged to the select list year 2005 and, therefore, a Review Selection Committee Meeting should have been held so that his name which was there in the zone of consideration for that year was considered. He has also relied upon the number of judgments to support his argument. The respondents, on the other hand, argued that after amendment to sub Rule 4(2) of the Indian Administrative Service (Cadre) Rules, 1954 was carried out in the year 1995, holding of the cadre review on due date is no more mandatory. We find merit in the aforesaid submission of the respondents. Of course till the amendment of the aforesaid sub rule, the Central Government was duty bound to re-examine the strength and composition of the cadre at the interval of every three years. It was for the aforesaid reason that this Tribunal in the case of Jacob P Thomas (supra) held that the expression used in Rule 4(2) is "at intervals of every three years" which means that the interval between one fixation of cadre strength and another shall be 3 years, no more or no less. This is due to the fact that the expression "interval" is defined to mean "intervening time or space" in Concise Oxford Dictionary. If sub rule (2) had stated that "after the expiry of 3 years" or "at intervals not less than 3 years" the Central Government shall examine the strength. etc. it would mean that the review can be made at any time after three years. Or, if the expression had been "the Central Government shall ordinarily at an interval of 3 years" or "at an interval not exceeding three years", etc., a certain amount of flexibility would have been available to complete it before three years. The expression "not exceeding three years" itself gives a flexibility within the three year limit, while the expression "ordinarily not exceeding three years" or "not less than 3 years" will permit crossing the 3 year limit on occasions. It is only necessary to point out that Regulation 5 of the Promotion Regulations states "each Committee shall ordinarily meet at intervals not exceeding one year" thus giving the intended flexibility while Rule 4(2) of the Cadre Rules is very precise and rigid and the language used does not give any latitude to the State or Central Government in this regard." The aforesaid order of this Tribunal was followed in the cases of J.K.Champavat and L.H.Nathani v. Union of India (supra) also. In the case of S.Ramanathan (supra) also, the Apex Court was dealing with the pre-amended provision of sub rule 4(2) of the Indian Police Service (Cadre) Rules, 1954, according to which "the Central Government shall, at the interval 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." The IAS(Cadre) Rules, 1954 is pari-materia with the aforesaid Rules. Both the Rules were amended in the year 1995 by substituting the word 'ordinarily' in place of "shall" thereby reducing the rigidity of the aforesaid provisions and the periodical cadre became no more mandatory. Therefore, the Apex Court in T.N. Administrative Service Officers Assn. v. Union of India (supra) which is a post-amendment case held that "the State is not bound to fill up such vacancy nor is there any corresponding right vested in an eligible employee to demand that such post be filled up."
17. In view of the above position, the OA is dismissed. There shall be no order as to costs.