BY HONOURABLE MR. JUSTICE S.D.ANAND, MEMBER(J):-
1. Whether the official respondents herein, proven refrain on whose part in complying with the rule-mandated time-bound cadre review has led to the impasse evident from the stance adopted by the parties, can validly resist the plea raised by the applicant for the retrospective enforceability of the cadre review undertake in the year 2010 and announced vide Annexure A 15, is the moot point for adjudication in this Original Application.
2. In order to resolve the interpretational dilemma, it would be appropriate, nay essential, to notice the factual scenario (documented though) in the first instance. The following facts surface from a conjunctive perusal of the pleadings raised by the parties.
3. Rule 4 of the IAS (Cadre) Rules, 1955, on its own, and also as interpreted by the Apex Court in T.N. Administrative Service Officers Association and Another Vs. Union of India and Ors. (2000(3) SCT 424) states that the Central Government has a primary responsibility of making cadre review and to consider whether it is necessary or not to encadre long-existing cadre post (Extraction from para 2 of letter dated 23.1.2003 addressed by the Additional Secretary, Government of India, Ministry of Personnel, Public Grievances and Pensions Annexure A-2). The rules require a cadre-review exercise to be undertaken every five years. The next cadre review was, thus, due on 23.2.2003.
4. Rule 4(2) of the IAS (Cadre) Rules, 1954 (hereinafter referred to as the rules) is extracted hereunder for facility of reference.
“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 years 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. (underlining for emphasis).
5. The cadre-review qua the State of Punjab was last undertaken in the year 1998 (Annexure A-1).
6. Thereafter, it has been undertaken in the year 2010 (Annexure A-15).
7. The intervening vicissitudes are documented as under.
8. The DOPandT, Government of India, called upon the Government of Punjab (vide communication Annexure A-2) ‘to sponsor the review proposals in the prescribed proformae by 31.1.2003 to this Department for processing the case further’.
9. The Government of Punjab forwarded the relevant proposal to the Government of India, vide communication dated 30.5.2003(Annexure A).
10. The fixture of a date for discussion came to be announced by the Government of India to the State of Punjab, vide communication dated 26.9.2003 (Annexure A 4).
11. The acceptance of the fixture was intimated by the State of Punjab to the Government of India, vide letter dated 30.9.2003(Annexure A 5).
12. Pursuant to discussion, the Government of India required the State of Punjab (vide Annexure A 6 dated 16.12.2003) to forward a revised proposal in the context. For want of any response, the Government of India issued a reminder dated 23.2.2004 (Annexure A 7).
13. The next documentation available on the record is letter dated 24.1.2007 addressed by the State of Punjab to the Government of India (Annexure A 8). The fact of non-availability of communication exchanged between the State of Punjab and Government of India notwithstanding, it is apparent that Annexure A 8 was an exercise in that very direction because no cadre review had culminated in the meantime.
14. The Government of India not having obviously responded, the State of Punjab issued a reminder dated 29.8.2007 (Annexure A 9).
15. In response thereto, the Government of India simultaneously informed the State of Punjab that the proposal (already) furnished was under examination and also called upon the latter to forward ‘a revised detailed fresh cadre review proposal along with the details regarding the utilization of CDR, SDR, temporary posts/ex cadre posts created alongwith justification’.
16. It was ultimately thereafter that the relevant notification qua cadre review came about vide Annexure A 15 which was notified to come into force with effect from the date of notification.
17. The grievance of the applicant is qua the prospective effect given to the notification Annexure A-15. That grievance is presented as under. Having been born on 8.6.1955, he attained the age of 54 years in June, 2009. That disables his name being considered in terms of Rule 5(3) of the Rules which (rule) forbids consideration of an Officer who has attained that age at the relevant point of time.
18. The delayed cadre review ‘clearly shows that the SCS Officers were denied the right of consideration against the revised cadre strength which was their legitimate expectation’.
19. The pure and simple plea raised by the applicant is that if cadre review had been undertaken at the mandated time (i.e. on 23.2.2003 and 23.2.2008), his name would have been considered for promotion to the Indian Administrative Service and the age bar would not have impeded his eligibility therefore.
20. Respondent no. 1 (Union of India) resisted the claim for retrospective implementation of notification Annexure A 15 and also pleaded that the applicant is presently ineligible for consideration as he turned 54 on 7.6.2009 (‘In June, 2009, he attained the age of 54, hence, became ineligible for promotion into the IAS in the subsequent years under Regulation 5(3) of the IAS (Appointment by Promotion) Regulations, 1955’.
21. In the course of the short reply, Respondent no. 3 (State of Punjab) only reiterated its bonafides in the matter of taking steps to undertake cadre review. No para-wise reply was filed by it. It, however, indicated in the concluding para of the relevant affidavit, that it ‘undertakes to file detailed reply if the Hon’ble Court orders to file detailed reply’.
22. The UPSC (Respondent No. 2 ) did not file a counter. The learned counsel representing the dispensation placed on record a communication dated 30.8.2011 vide which it requested the Union of India ‘to defend the instant OA on behalf of the Commission also’.
23. In consensual allowance of a plea, the impleadment of private Respondents No. 4-7, was ordered vide order dated 9.12.2011. The learned counsel appearing on their behalf, however, stated that no independent counter was to be filed and that he would argue the matter on merits on As Is Where Is Basis.
24. Interestingly enough, both the parties raised a plea that their respective stances are buttressed by the Apex Court view in Union of India and another versus Hem Raj Singh Chauhan and Others (2004) 4 SCC 290.
25. The learned Sr. Counsel, in the context, would rely upon the fact that the Summit Court had upheld the directions given by Allahabad Bench of the Uttar Pradesh High Court. The directions given by the High Court, the argument canvassed proceeded in continuity, required the official Respondents therein to grant retrospective effect to the cadre review exercise.
26. On the other hand, the learned counsel for the private Respondents and Respondent No. 1 relied upon the fact that upholding of directions aforementioned was ordered by the Apex Court in exercise of its jurisdiction under Article 142 of the Constitution of India.
27. It, thus, becomes imperative that we examine the implications of the judgement in Hem Raj Singh Chauhan’s case (supra) in the first instance. The twin facets of the adjudicatory exercise would be in general and also with particular applicability to the instant case.
28. The two applicants who had filed individual OAs (1097/2006 and 1137/2006), were members of the State Civil Service (Uttar Pradesh Cadre) and had completed eight years of service (required for eligibility for promotion to the IAS) on 23.7.1985 and 4.6.1986 respectively. The last cadre review of the IAS in the State of Uttar Pradesh had taken place in 1998. The next cadre review due in April, 2003, was not undertaken. The review came about in August, 2005. The applicant claimed that the review should have been implemented w.e.f. April, 2003. The view was negatived by the Central Administrative Tribunal (hereinafter referred to as the Tribunal) which held that the review carried out in 2005 could not be given retrospective effect. OA No. 1097/2006 was dismissed. OA No. 1137/2006 came to be partially allowed. The order directed the ‘respondents to convene the meeting of the DPC Selection Committee to fill the posts which were not filled up in the years 2001, 2002 and 2004 and to consider all eligible SCS 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’. (stance, as quoted in Hemraj Singh Chauhan’s case)
29. The applicants, who had been thereby non-suited by the Tribunal, filed a judicial review challenge before the High Court. Their specific stand in the Writ Petition was that if the increased vacancies were available in 2004 as a result of cadre review in 2003, they could have been promoted to IAS.
30 The Uttar Pradesh Government, in a change of stance before the High Court, took the stand (by means of a better affidavit) that they have no objection ‘to any direction for exercise of cadre review to be undertaken with reference to the vacancy position as on 1.1.2004’.
31. The Central Government, however, reiterated the stance that the review having been made effective from 25.8.2005, no retrospective effect could be given to it.
32. The High Court set aside the Tribunal judgement as also the Notification 1.2.2006 and 25.8.2005 and directed that the cadre review exercise should be undertaken as if it was taking place on 30.4.2003 with reference to the vacancy position as on 1.1.2004’.(as quoted in Hem Raj Singh Chauhan’s case)
33. The Union of India and another challenged the judgement of the High Court by filing an SLP.
34. While, on the one hand, holding that the review could not be given retrospective effect, the Apex Court held that the directions given by the High Court, ‘cannot be said to be unreasonable’. The Court also reiterated ‘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’.
35. It can, thus, be safely culled out from the narration in the preceding paras that the applicant can taste success if the notification Annexure A 15 is held to be applicable with retrospective effect from the year 2003 and/or 2008. If, however, the grant of retrospective effect is negatived, the applicant has to be non-suited. Further, in view of the fact that both the private parties and the Union of India rely upon the pronouncement in Hem Raj Chauhan’s case (supra), a meticulous examination of the view obtained by the Apext Court therein too shall have to be undertaken in order to find out how exactly it impacts the case before this Tribunal.
36. In raising a claim for the retrospective implementation of the review, the applicants (in the OA before the Allahabad Bench of the Tribunal) had drawn sustenance from the fact that the Central Government having not undertaken the time-bound review which it had to ‘ordinarily’ undertake after every five years, the effect of that refrain could not ‘befall’ them by denying promotion (to the IAS) to them which (promotion) could have been in their kitty if it (review) had been held at the mandated period.
37. In that case, the delay in the holding of the cadre review had occurred due to inaction/noticeably sluggish action on the part of inter-action between the State Government and the Union Government. Another contributory factor, in the context, was the reorganization of the State of Uttar Pradesh which had led to the emergence of the State of Uttaranchal. It was in the context of the entire attendant factual scenario that the Apex Court interpreted the implications of the expression ‘ordinarily’ occurring in the course of para 1 of Rule 4(2) of the Rules (extracted herein as well in para 4 of the judgement).
38. The applicants therein averred 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’.
39. The stance of ‘the applicants both before the Central Administrative Tribunal and the High Court was that the cadre review was due in 2003’.
40. The stance taken up by the State of Uttar Pradesh before the Tribunal was that with ‘the issuance of Notification issued by the Department of Personnel and Training on 21.12.2000, bifurcating the cadre of undivided Uttar Pradesh to IAS, Uttar Pradesh and IAS, Uttaranchal upon the Uttar Pradesh Reorganisation Act, cadre review has already taken place and as such, the next review was due in 2005 only’.
41. The Tribunal upheld ‘the contention of the State of Uttar Pradesh and held that the cadre review carried out in 2005 cannot be given retrospective effect’.
42. The applicants therein filed a judicial review challenge by filing a Writ Petition before the High Court. The plea raised therein was that the cadre review of the Indian Administrative Service 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 SCS Officers were deprived of their promotion to the Indian Administrative Service. Their specific stand in the Writ petition was that if the increased vacancies were available in 2004 as a result of the cadre review in 2003, they could have been promoted to IAS’.
43. The Central Government pleaded before the High Court that the cadre review undertaken in 2005 ‘cannot be given retrospective effect’.
44. As already noticed in an earlier part of this order, the stance of the Uttar Pradesh Government before the High Court ‘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 to the vacancy position as on 1.1.2004’.
45. The High Court differed with the Tribunal view and directed (the Central Government and the State Government) that the ‘cadre review exercise should be undertaken as if it was taking place on 30.4.2003 with reference to the vacancy position as on 1.1.2004’.
46. After noticing the respective stances taken up by the parties, the Apex Court made certain revelatory observations which are extracted hereunder.
“34. However, from the discussion made hereinabove, the following things are clear:
(a) Both the appellants and the State Government in accordance with their stand in the subsequent affidavit accepted that cadre review in the State of Uttar Pradesh was made in 1998 and the next cadre review in that State was due in 2003.
(b) Neither the appellants nor the State Government has given any plausible explanation justifying the delay in cadre review;
(c) From the materials on record it is clear that the appellant as the Cadre Controlling Authority repeatedly urged the State Government to initiate the review by several letters referred to hereinabove;
(d) The only reason for the delay in review, in our opinion, is that there was total inaction on the part of the Uttar Pradesh Government and lackadaisical attitude in discharging its statutory responsibility.
35. 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.
36. 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 guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution.
37. In Govt. Branch Press v. D.B. Belliappa 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 SCC p. 486, para 24).
38. It is, therefore, clear that legitimate expectations of the respondents of being considered for promotion have been defeated by the acts of the Government and if not of the Central Government, certainly the unreasonable inaction on the part of the Government of State of Uttar Pradesh 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 ineligible for such consideration. Now the question which is weighing on the conscience of this Court is how to fairly resolve this controversy.
39. The 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.
40. 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 fulfil the statutory intent for which it has been used.
41. The word ‘ordinarily’, of course, means that it does not promote a cast-iron rule, it is flexible (see Jasbhai Motibhai Desai v. Roshan Kumar at SCC p. 682, para 35). It excludes something which is extraordinary or special (Eicher Tractors Ltd. V. Commr. Of Customs at SCC p. 319, para 6). The word ‘ordinarily’ would convey the idea of something which is done ‘normally’ (Krishan Gopal v. Prakashchandra at SCC p. 134, para 12) and ‘generally’ subject to special provision (Mohan Baitha v. State of Bihar at SCC p.354).
42. 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 every five years is ordinarily mandatory subject to exceptions which may be justified in the facts of a given case. Surely lethargy, inaction, an absence of a sense of responsibility cannot fall within the category of just exceptions.
43. In the facts of this case neither the appellants nor the State of Uttar Pradesh has justified its action of not undertaking the exercise within the statutory time-frame on any acceptable ground. Therefore, the delayed exercise cannot be justified within the meaning of ‘ordinarily’ in the facts of this case. In the facts of the case, therefore, the Court holds that there was failure on the part of the authorities in carrying out the timely exercise of cadre review.
44. In a somewhat similar situation this Court in Union of India v. Vipinchandra Hiralal Shah while construing Regulation 5 of the IAS (Appointment by Promotion) Regulations, 1955 held that the insertion of the word ‘Ordinarily’ does not alter 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.
45. It was urged before this Cout in Hiralal Shah case that the insertion of the word ‘ordinarily’ will make a difference. Repelling the said contention, this Court held that the word ‘ordinarily’ does not alter the underlying intendment of the provision. This Court made it clear that unless there is a very good reason for not doing so, the Selection Committee shall meet every year for making the selection. In doing so, the Court relied on its previous decision in Syed Khalid Rizvi v. Union of India.
46. In Syed Khalid Rizvi the Court was considering Regulation 5 of the Indian Police Service (Appointment by Promotion) Regulations, 1955 which also contained the word ‘ordinarily’. In that context the word ‘ordinarily’ has been construed as: (Syed Khalid Rizvi SCC p. 586, para 9).
9. “..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.”
47. It was in the light of the above noticed factual and legal scenario that the court held (in principle) that Rule 4(2) ‘cannot be construed to have any retrospective operation’. At the same time, it was held in the penultimate para as under:-
“48. 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.”
48. Having given consideration to the presentation made in the course of the hearing, we have not been able to persuade ourselves to the view canvassed on behalf of the Respondents herein that the reiteration of the directions given by the High Court, at the hands of the Apex Court, was ‘only’ in exercise of the jurisdiction under Article 142 of the Constitution of India.
49. We could uphold the contention above-quoted if we were inclined to read the relied upon reiteration in isolation from the judgement in entirety. That would not be a permissible method of reading a judgement. Even otherwise, the view announced by the Summit Court in para 47 of the judgement cannot be interpreted in a manner which gives it (para) primacy over what was announced in para 48 of the judgement.
50. We are of the considered view that the Apex Court, after holding that the ‘respondents cannot be made in any way responsible for the delay’, held that ‘the directions given by the High Court cannot be said to be unreasonable’. The ‘reiteration’ of the view in terms of Article 142 of the Constitution of India was, thus, obviously an additional authorisation of the view obtained.
51. It is, thus, obvious that though the Apex Court held, in principle, that Rule 4(2) cannot be construed to have any retrospective effect and it will operate prospectively, it also recorded a finding that the directions given by the High Court could not be said to be unreasonable. The reiteration thereof, in exercise of the jurisdiction under Article 142 of the Constitution of India, obviously clothed the view with the additional authority which is the exclusive prerogative of the Apex Court.
52. In any case, the law of land announced by the Apex Court in Hem Raj Chauhan’s case (supra) does not hold that the retrospective operation of Rule 4(2) is not envisaged at all. The interpretational jurisdiction shall, thus, have to be exercised in the peculiar facts and circumstances of each case.
53. Examined from that angle, the present case is on a much better footing than Hem Raj Chauhan’s case (supra). In that case, the delay in undertaking cadre review was only by two years. The review was due in 2003. It came to be undertaken in 2005. There was one particular mitigating factor as well. The delay in the review had partly occurred due to the reorganisation of the State of Uttar Pradesh during the relevant period, i.e. the period intervening 1998 (i.e. when the earlier review had been undertaken) and 2005(i.e. when the review due in 2003 was actually undertaken).
54. As against it, the review was due in 2003. It was not undertaken. Then, the further review was due in 2008. That too was not undertaken. Without at all sounding accusatory in the context, we would like to notice the evident fact that the eligible candidates were the only sufferers on account of the non-holding of the cadre review due in 2003 and 2008. In the meantime, the applicant attained the age of 54 years. How, exactly, his claim for consideration can be defeated defies logical comprehension. If we agree with the view canvassed on behalf of the Union of India etc. it would amount to validating administrative culpable lethargy on the part of whichever quarters were accountable for the delay in the context of holding of cadre review in 2003 and 2008.
55. We can only express our feeling of exasperation at the manner in which the official Respondents first delayed the undertaking of cadre review exercise by quite some time and, then, they have opted to indicate a stance which, if accepted at law, would hurt a party (or the likes of it), for no fault on its part. The adoption of such a course of interpretive justice cannot be conceptualized on the touchstone of principles of fair play and natural justice.
56. In the light of foregoing discussion, we allow the OA and direct the Respondents to undertake the cadre review exercise for 2003 and 2008 and consider the applicant (and the likes of him) against the posts which are found available as a result thereof. The consideration, it is to state the obvious, shall not be impeded by the fact that the applicant has attained the age of 54 years on 8.6.2009. The exercise must be concluded within one month from today.
57. In the circumstances of the case, we would uphold the entitlement of the applicants to the costs of the cause (payable by the official Respondents) assessed as Rs. 5000/-.
58. Disposed of accordingly.