Bombay High Court

Union Of India vs Amar Vijay Jadhav And Ors on 28 November, 2017

Bench: V.K. Tahilramani

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DDR

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      ORDINARY ORIGINAL CIVIL JURISDICTION
                            WRIT PETITION NO. 2203 OF 2013


       Union of India                                          ...Petitioner
             vs.
       1. Shri Amar Vijay Jadhav
       2. Shri Sanjay Vilas Mohite
       3. Shri Pravin Ramrao Pawar                             .. Respondents

       4. The Secretary,
       The Ministry of Personnel.

       5. The Chief Secretary,
       Government of Maharashtra

       6. The Chairman
       Union Public Service Commission                         .. Formal Respondents

                                   ...........

Mr. Vinod Joshi, Advocate for the petitioner / UOI.

Mr. R.R. Shetty, Advocate for respondent Nos.1 to 3.

Mrs. P.H. Kantharia - G.P. Along with Ms. Deepali Patankar, AGP for the State / Respondent No.5.

...........

                                 CORAM                    : SMT. V.K. TAHILRAMANI  & 
                                                            M.S.KARNIK, J.J.

                                 Date                     : 28th NOVEMBER, 2017.
        









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 ORDER (PER M.S. KARNIK, J.) :-

The petitioner - Union of India by this petition filed

under Article 226 of the Constitution of India challenges the

judgment and order dated 25/8/2011 passed by the Central

Administrative Tribunal, Mumbai Bench, Mumbai (hereinafter

referred to as "the Tribunal" for short) in O.A.No.853 of 2010.

2. The respondent Nos.1 to 3 filed O.A. before the

Tribunal being aggrieved by the highly belated action on the

part of the petitioner in carrying out a cadre review in respect of

Indian Police Service (hereinafter referred to as "IPS" for short),

Maharashtra Cadre.

3. Learned Counsel for the petitioner - Union of India

assailing the order of the Tribunal submits that the process of

cadre review is a cumbersome exercise, starting with a

preliminary meeting between the Ministry of Home Affairs and

the State Government to finalize the view on the proposal

furnished by the concerned State Government. The

proposal/brief is sent to the Cabinet Secretariat to get the

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convenience of the Cabinet Secretariat. He pointed out the

various stages the proposal goes through before formal

notification is issued. This process takes considerable period of

time. Learned Counsel invited our attention to the affidavit-in-

reply filed by the respondent No.5 - State of Maharashtra

wherein it is stated that the previous cadre review of IPS

(Maharashtra Cadre) was approved by the Central Government

by Notification dated 5/11/2003. As per the statutory rule, the

next cadre review was due in the year 2008 within a period of 5

years from 5/11/2003. The Central Government by letter dated

12/10/2007 requested the respondent No.5 - the State

Government to forward a proposal for cadre review to the

Central Government. Several reminders were sent by the

petitioner to the State Government to forward the proposal. It

is only by a letter dated 6/10/2009 that the proposal was

submitted to the Ministry of Home Affairs of respondent No.1.

Thereafter, a meeting was convened on 26/10/2009 which was

attended by the Principal Secretary (Special), Home Department

on behalf of the State of Maharashtra. The issue of revised

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proposal was discussed. On 11/1/2010, the revised proposal

was accepted by the Central Government. Thereafter, the

Notification dated 30/3/2010 came to be issued by the Ministry

of Personnel, Public Grievances & Pensions published the Indian

Police Service (Fixation of Cadre Strength) Seventh Amendment

Regulations, 2010. There was no intentional delay in issuing the

Notification belatedly so the learned Counsel would submit.

4. Learned Counsel for the petitioner was at pains to

point out that insofar as the petitioner - Union of India is

concerned, they had by a letter dated 12/10/2007 requested the

State Government to forward a proposal for cadre review to the

Central Government. This communication was followed by

reminders dated 17/1/2008, 20/6/2008, 19/9/2008,

27/11/2008, 11/12/2008, 27/3/2009, 26/6/2009, 20/8/2009

and 25/9/2009. He also pointed out that the Cabinet Secretariat

also made a request to this effect vide their D.O. letter dated

1/12/2008. After so many reminders, upon receipt of the

proposal from the State Government only on 6/10/2009, a

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meeting was immediately scheduled on 26/10/2009. The State

of Maharashtra, Ministry of Home Affairs requested for

postponement of the meeting in view of the on going Winter

Session and accordingly the meeting came to be held on

15/1/2010. The Notification for cadre review was issued on

30/3/2010 and in the submission of the learned Counsel for the

petitioner there is absolutely no delay on their part in carrying

out cadre review.

5. Learned Counsel for the petitioner relied upon the

decision of the Apex Court in the case of Union of India vs.

Hemraj Singh Chauhan, 2010 (4) SCC 290. In his submission,

Rule 4 of the Cadre Rules provide that 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. In his submission, the word

"ordinarily" means it does not promote a cast iron rule, it is

flexible. According to him, it excludes something which is

extraordinary or special. He further pointed out that the Apex

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Court accepted the arguments of the appellant/Union of India

therein that Rule 4(2) cannot be construed to have any

retrospective operation and it will operate prospectively. In his

submission the petitioner has taken all possible steps to carry

out cadre review and it is on account of receipt of the belated

proposal from State Government that the exercise could not be

done within the stipulated five years. According to him, by not

undertaking the exercise within the stipulated time frame, it

cannot be said that there was any failure on the part of the

petitioner in carrying out timely exercise of cadre review.

6. Learned Counsel for the respondent No.5 - State of

Maharashtra placing reliance on the affidavit filed on their

behalf before the Tribunal contended that though as per the

statutory rules, the next cadre review was due in the year 2008,

a proposal was received from the office of the Director General

of Police only on 11/12/2008 and it is after the incident of

26/11/2008 that it became necessary to review the strength and

composition of police force. Learned Counsel pointed out

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various dates on which the proposal was forwarded and how the

same was processed and in his submission, the review which

was to take place in the year 2008, has taken place in the year

2010. There was no intentional delay in doing so. It was

submitted that the cadre review had to be considered in the light

of the incident of 26/11/2008.

7. Learned Counsel for the respondent Nos. 1 to 3

submits that the respondent Nos.1 to 3 were directly recruited in

the Maharashtra Police Service in the year 1992. At the time of

filing of the O.A., they were working as Deputy Commissioner of

Police / Superintendent of Police with effect from the year 2003.

The respondent Nos.1 to 3 contended that as a result of non

conducting of cadre review on time, as envisaged by the

provisions of Indian Police Service (Cadre) Rules, 1954

(hereinafter referred to as 'Cadre Rules') for short), great

prejudice is caused to the respondent Nos.1 to 3 in the matter of

their promotion. The last cadre review was conducted in the

year 2003 and was notified on 5/11/2003. In the submission of

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the respondent Nos.1 to 3, the next cadre review should have

been conducted well in time, within five years and should have

been notified in November, 2008. It is the contention of the

learned Counsel for the respondent Nos.1 to 3 that contrary to

the provisions of the Rules, the petitioner and the respondent

No.5 have conducted belated cadre review at their will and have

notified the amended position on 30/3/2010 enhancing the

cadre posts from 236 to 302. Learned Counsel for the

respondent Nos.1 to 3 relied upon the provisions of Rule 4(1)

and 4(2) of the Cadre Rules.

8. Learned Counsel for the respondent Nos.1 to 3

further submits that considerable prejudice would be caused to

them as the delayed action on the part of the petitioners would

directly affect their seniority in IPS. According to him, the non-

issuance of notification for cadre review within time in violation

of the Cadre Rules is pushing back their seniority in the IPS from

2004 to 2005.

9. Considered the submissions advanced by learned

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Counsel for the parties. It is not in dispute that the cadre review

of IPS (Maharashtra Cadre) was due in November, 2008 and

that the State Government was, vide letter dated 12/10/2007,

requested to forward a proposal for cadre review to the Central

Government. After several reminders, the State of Maharashtra

forwarded the proposal only on 6/10/2009. Notification dated

30/3/2010 was issued by the petitioner reviewing the strength

and composition of the Maharashtra Cadre of IPS. The learned

Tribunal for the reasons recorded in the impugned order was

pleased to allow the O.A. The Tribunal has thereby directed the

respondent No.5 to consider the question of promotion of

respondent Nos.1 to 3 to IPS on the basis of redetermined

strength of the cadre, treating the same to be in the year 2008,

and, if on such a reconsideration, relief would be available to

any of the respondent Nos.1 to 3 for promotion to IPS on the

basis of quota available to them in the cadre, the same may be

given with effect from 1/1/2009 with notional consequential

benefits of pay fixation, seniority, etc.

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10. Rule 4(1) and 4(2) of the Cadre Rules reads thus :-

"4. Strength of Cadres :- 4(1) The strength and composition of each of the cadres constituted under rule 3 shall be as determined by regulations made by the Central Government in consultation with the State Governments in this behalf and until such regulations are made shall be as in force immediately before the commencement of these rules.

4(2) The Central Government shall, ordinarily at intervals of every 5 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."

In the submission of the learned Counsel for the petitioner,

Rule 4 provides that the cadre review has to be ordinarily at

intervals of every 5 years. In his submission if there is good

justification for not carrying out the cadre review till this period,

the word "ordinarily" cannot be regarded as mandatory. We find

that the legitimate expectation of the respondent Nos.1 to 3 for

being considered for promotion has been defeated on account of

the delay in cadre review by the acts of the Government and if

not the Central Government, certainly unreasonable inaction on

the part of the State of Maharashtra. This belated action stood in

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the way of the respondent Nos.1 to 3's chances of promotion for

being fairly considered when it is due for such consideration and

this unjustifiable delay has made them ineligible for such

consideration.

11. We may quote para 44 and 49 of the decision of the

Apex Court in the case of Union of India v/s. Hemraj Singh

Chauhan (supra), which reads thus :-

"44. 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 in 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.

49. Therefore, this Court accepts the arguments of the learned Counsel for the Appellants that Rule 4 (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

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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."

12. No doubt, the Apex Court has accepted the

arguments of the learned Counsel for the appellants that Rule 4

(2) cannot be construed to have any retrospective operation and

it will operate prospectively. In this regard we may also usefully

refer to para 47 and 48 of the decision of the Apex Court in

Union of India v/s. Hemraj Singh Chauhan (supra), which

reads thus :-

47. It was urged before this Court 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

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year for making the selection. In doing so, the Court relied on its previous decision in Syed Khalid Rizvi V. Union of India - 1993 Supp. (3) SCC 575. In that case 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 : "....... 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."