Delhi High Court
Hemraj Singh Chauhan vs Union Of India on 14 November, 2008
Author: S. Muralidhar
IN THE HIGH COURT OF DELHI AT NEW DELHI
WRIT PETITION (C) No. 19103-04/2006 &
CM APPL Nos. 15865/2006, 13527, 13535/2008
Reserved on: October 24, 2008
Date of decision: November 14, 2008
HEMRAJ SINGH CHAUHAN & ORS. ..... Petitioners
Through: Mr. P.S. Patwalia, Senior Advocate with
Mr. S.K. Sinha, Advocate for Petitioner in
WP(C) 19103/2006.
Mr. G.D. Gupta, Senior Advocate with Mr. S.K.
Sinha, Advocate for petitioner in
WP(C) No. 19104/2006.
versus
UNION OF INDIA & OTHERS ..... Respondents
Through: Mr. H.K. Gangwani, Advocate for R-1.
Mr. Shail Kumar Dwivedi, Additional Advocate
General with Mr. Upendra Nath Mishra and Mr.
Ashok Chabbra, Advocates for R-3 and 4
(State of UP).
Mr. Sunil Gupta, Senior Advocate with Mr.
Ravindra Kumar, Advocate for Intervener.
CORAM:
HON'BLE DR.JUSTICE S. MURALIDHAR
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether Reporters of local papers may be
allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in Yes
Digest?
JUDGMENT
14.11.2008
S. Muralidhar, J.
1. The judgment dated 15th December 2006 passed by the Central
Administrative Tribunal („Tribunal‟), Principal Bench, New Delhi in OA
No. 1097 of 2006 filed by the petitioners, along with certain others, is
challenged by them in this writ petition. Petitioner No.1 is a Special
Secretary in the Trade Tax Department, Government of Uttar Pradesh and
Petitioner no.2 is a Controller, Legal Metrology, Government of Uttar
Pradesh.
The Background: The relevant Rules and Regulations
2. The petitioners who are members of the State Civil Services („SCS‟) of
Uttar Pradesh completed eight years of service on 23rd July 1985 and 4th June
1986 respectively. An officer of the SCS is entitled to be considered for
appointment to the Indian Administrative Service („IAS‟) by promotion after
completing 8 years of service in terms of the third proviso to Regulation 5
(3) of the IAS (Appointment by Promotion) Regulations 1955 („Promotion
Regulations‟). Under Regulation 5 (3) of the Promotion Regulations,
members of the SCS who have attained 54 years of age on the 1st day of
January for which the Select List is prepared shall not be considered for
promotion to the IAS. Under the Regulation 5 (1) of the Promotion
Regulations, a Committee has to be constituted which shall "ordinarily meet
every year" and "prepare a list of such members of the State Civil Service as
are held by them to be suitable for promotion to the Service." The number
of members of the SCS to be included in this list "shall be determined by the
Central Government in consultation with the State Government concerned
and shall not exceed the number of substantive vacancies as on the first day
of January of the year in which the meeting is held, in the posts available for
them under rule 9 of the Recruitment Rules." The second proviso to
Regulation 5 (1) of the Promotion Regulations is important and it reads as
under:
"Provided further that where no meeting of the
Committee could be held during a year for any
reason other than that provided for in the first
proviso, as and when the Committee meets again,
the select list shall be prepared separately for each
year during which the Committee could not meet,
as on the 31st December of each year."
3. Rule 2 (g) (ii) of the IAS (Recruitment) Rules 1954 (Recruitment Rules)
defines the expression "State Civil Service" to mean any service approved
for the purpose of the said Rules by the central government. The expression
"Service" is defined under Rule 2 (e) to mean the Indian Administrative
Service. Rule 4 (1) of the Recruitment Rules indicates that there are three
methods of recruitment to the IAS. These are (a) by competitive examination
(b) by promotion of a substantive member of a SCS and (c) by selection, in
special cases from among persons, who hold in a substantive capacity
gazetted posts in connection with the affairs of a State and who are not
members of a SCS. Therefore, the recruitment to the IAS can, apart from the
competitive examination, be by way of promotion or selection.
4. Rule 4 (2) of the Recruitment Rules which is relevant to the present case
reads as under:
"4 (2) Subject to the provisions of these rules,
(a) the method or methods of recruitment to be adopted
for the purpose of filling up any particular vacancy or
vacancies as may be required to be filled during any
particular period of recruitment, shall be determined
by the Central Government in consultation with the
Commission and the State Government concerned.
(b) The number of persons to be recruited by each
method shall be determined on each occasion by the
Central Government in consultation with the State
Government concerned."
5. It is not in dispute in the present case that the petitioners are SCS officers
seeking promotion to the IAS in terms of Rule 4 (1) (b) of the Recruitment
Rules. On the other hand the interveners (who have been permitted to do so
by this Court by its Order dated 23rd April 2008 in CM No. 11847 of 2007)
are non- SCS officers of UP seeking appointment to the IAS under Rule 4
(1) (c) of the Recruitment Rules.
6. Rules 8 and 9 of the Recruitment Rules deals with the recruitment by
promotion or selection for appointment to State and Joint Cadre and they
read as under:
"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, 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.
(2) The Central Government may, in special circumstances
and on the recommendation 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
Government and the Commission, from time to time,
make recruit to the Service any person of outstanding
ability and merit serving in connection with the affairs of
the State who is not a member of the State Civil Service
of that State but who holds a gazetted post in a substantive
capacity.
(3) (a) Where a vacancy occurs in a State Cadre which is to
be filled under the provision of this rule, the vacancy shall
be filled by promotion of a member of the State Civil
Service or, as the case may be, by selection of any other
officer serving in connection with the affairs of that State.
(b) Where a vacancy occurs in a Joint Cadre which is to
be filled under the provision of this rule, the vacancy
shall, subject to any agreement in this behalf, be filled by
promotion of a member of the State Civil Service of any
of the States constituting the group or as the case may be,
by selection of any other officer serving in connection
with the affairs of any such State(s).
9. Number of persons to be recruited under rule 8
(1) The number of persons recruited under rule 8 in any
State or group of States shall not, at any time, exceed 33
1/3 per cent of the number of senior posts under the State
Government, Central Deputation Reserve, State
Deputation Reserve and Training Reserve in relation to
that State or to the group of States, in the Schedule to the
Indian Administrative Service (Fixation of Cadre
Strength) Regulations 1955.
Provided that the number of persons recruited under sub-
rule (2) of the rule 8 shall not at any time exceed fifteen
per cent of the number of persons recruited under rule 8.
Explanation: For the purpose of calculation of the posts
under this sub-rule, fractions, if any, are to be ignored.
(2) Notwithstanding anything contained in this rule, in
relation to the State of Jammu and Kashmir, the number
of persons recruited under sub-rule (1) shall not upto 30th
April 2002, exceed at any time, fifty per cent of the
number of senior posts under the State Government,
Central Deputation Reserve, State Deputation Reserve
and the Training Reserve in relation to that State in the
Schedule to the Indian Administrative Service (Fixation
of Cadre Strength) Regulations 1955.
7. The selection of non-SCS officers to the IAS is covered by the IAS
(Appointment by Selection) Regulations 1997 („Selection Regulations‟). In
terms of Regulation 3 thereof the central government shall, in consultation
with the state government, determine the number of vacancies which are to
be filled up by way of selection from non-SCS officers, The number of
vacancies are to be determined with reference to the 1 st day of January of the
year in which the selection is to take place. Regulation 4 of the Selection
Regulations which is relevant for the present case reads as under:
"4. State Government to send proposals for
consideration of the Committee: (1) The State
Government shall consider the case of a person not
belonging to the State Civil Service but serving in
connection with the affairs of the State who
(i) is of outstanding merit and ability; and
(ii) holds a Gazetted post in a substantive capacity; and
(iii) has completed not less than 8 years of continuous
service under the State Government on the first day of
January of the year in which his case is being considered
in any post which has been declared equivalent to the
post of Deputy Collector in the State Civil Service and
propose the person for consideration of the Committee.
The number of person proposed for consideration of the
Committee shall not exceed five times the number of
vacancies proposed to be filled during the year.
Provided that the State Government shall not consider the
case of a person who has attained the age of 54 years on
the first day of January of the year in which the decision
is taken to propose the names for the consideration of the
Committee.
Provided also that the State Government shall not
consider the case of person who, having been included in
an earlier select list, has not been appointed by the
Central Government in accordance with the provisions of
regulation 9 of these regulations."
8. The IAS (Cadre) Rules 1954 („Cadre Rules‟) determines how often the
examination of the strength and composition of the cadres should be
undertaken. Rule 4 of the Cadre 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 Governments in this behalf
and until such regulations are made, shall be as in
force immediately before the commencement of these
rules.
(2) The Central Government shall 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 state Government
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 year to a State or
Joint Cadre one or more posts carrying duties of
responsibilities of a like nature to cadre posts.
It is common ground that Rule 4 (2) was amended on 14 th July 2000 and the
word "ordinarily" was introduced therein. Further, the words "three years"
were substituted by the words "five years."
9. Under the IAS (Fixation of Cadre Strength) 3rd Amendment Regulations
1995 notified on 31st March 1995, the strength of the IAS cadre in the State
of Uttar Pradesh was determined as under:
Total authorized strength 527
Under the Cadre Rules as they stood prior to the amendment in 2000, a cadre
review was to take place after every three years. Accordingly a cadre review
took place in April 1998 and the IAS (Fixation of Cadre Strength) 3rd
Amendment Regulations 1998 was notified on 30th April 1998 under Rule 4
(2) of the Cadre Rules. As per this notification, the cadre strength of IAS
officers of the State of Uttar Pradesh was determined as under:
Total authorized strength 535"
Formation of Uttaranchal and the present controversy
10. The present controversy has arisen as a result of the formation of the new
State of Uttaranchal in terms of Section 3 of the Uttar Pradesh
Reorganisation Act, 2000 („Reorganisation Act‟). Certain members of the
Uttar Pradesh Cadre of the IAS were allocated to the newly formed cadre of
the Uttaranchal in terms of the Section 72 of the Reorganisation Act which
reads as under:
"72. Provisions relating to All India Services - (1) In
this section, the expression "State Cadre"-
(a) in relation to the Indian Administrative Service, has
the meaning assigned to it in the Indian
Administrative Service (Cadre) Rules, 1954;
(b) in relation to the Indian Police Service, has the
meaning assigned to it in the Indian Police Service
(Cadre) Rules, 1954; and
(c) in relation to the Indian Forest Service, has the
meaning assigned to it in the Indian Forest Service
(Cadre) Rules, 1966.
(2) In place of the cadres of the Indian Administrative
Service, Indian Police Service and Indian Forest Service
for the existing State of Uttar Pradesh, there shall, on and
from the appointed day, be two separate cadres, one for
the State of Uttar Pradesh and the other for the State of
Uttaranchal in respect of each of these services.
(3) The initial strength and composition of the State
cadres referred to in sub-section (2) shall be such as the
Central Government may, by order determine before the
appointed day.
(4) The members of each of the said services borne on
the Uttar Pradesh cadre thereof immediately before the
appointed day shall be allocated to the State cadres of the
same service constituted under sub-section (2) in such
manner and with effect from such date or dates as the
Central Government may, by order, specify.
(5) Nothing in section shall be deemed to affect the
operation, on or after the appointed day, of the All India
Services Act, 1951, or the rules made thereunder."
11. The Reorganisation Act was passed on 25th August 2000 and the
impending date of the creation of the State of Uttaranchal in terms of the Act
was 1st November 2000. On 23rd September 2000 the Chief Secretary,
Government of Uttar Pradesh wrote to the Government of India that out of
the 290 Senior duty posts in UP, only 17 posts deal exclusively with the
proposed State of Uttaranchal. In the circumstances, it was requested that the
remaining 273 posts should still be given to the UP cadre of IAS. This
request was apparently not acceded to at that stage as is evident from the
notification issued on 21st October 2000. Two notifications were issued on
that date. The first was under Section 3(1) of the All India Services Act,
1951 read with Section 72 (2) and (3) of the Reorganisation Act and Rule 4
(2) of the Cadre Rules whereby the Central Government constituted "for the
State of Uttaranchal an Indian Administrative Service Cadre with effect
from 1st day of November 2000." On the same date 21 st October 2000 a
separate notification as issued fixing the cadre strength for the State of Uttar
Pradesh and determining the number of senior posts under the same
Government as 253. The relevant portion of the said notification reads as
under:
"No. 11031/4/2000 - AIS (II) A
Government of India
Ministry of Personnel, Public Grievances & Pensions
Department of Personnel and Training
New Delhi, the 21st October 2000
NOTIFICATION
GSR No. 806 E 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 Section 72 (2) and 72 (3) of
the Uttar Pradesh Reorganization Act, 2000 and the first
proviso to sub-rule (2) of Rule 4 of the Indian
Administrative Service (Cadre) Rules 1954, the Central
Government in consultation with the Government of
Uttar Pradesh hereby makes the following regulations
further to amend the Indian Administrative Service
(Fixation of Cadre Strength) Regulations 1955, namely:-
1. (1) These regulations may be called the Indian
Administrative Service (Fixation of Cadre
Strength) Third Amendment Regulations 2000.
(2) They shall come into force from the First day
of November 2000.
2. In the Schedule to the Indian Administrative
Service (Fixation of Cadre Strength) Regulations,
1955, for the heading "Uttar Pradesh" and the
entire occurring thereunder, the following shall be
substituted."
12. The Schedule of the notification indicating the number of posts on the
different categories is under:
2. Central Deputation Reserve @ 40% of
3. State Deputation Reserve @ 25% of Item
5. Posts to be filled by promotion and selection
Under Rule 8 of the Indian Administrative
Service (Recruitment) Rules, 1954, not exceeding
6. Leave Reserve and Junior Posts Reserve
7. Posts to be filled up by direct recruitment
-----
-----
-----
13. The very same notification contained a separate schedule for the State
of Uttaranchal and the number of posts for the new State was separately
indicated as under:
Total authorized strength 68
14. According to the petitioners, the next quinquennial cadre review for
U.P should have taken place on 30th April 2003. It appears that an
Advisory Committee was constituted under Section 76 of the Reorganisation
Act under the Chairmanship of Shri U.C. Agarwal, IAS (Retired) by an
order dated 29th August 2000 by the Central Government. The terms and
reference of the Committee were inter alia to recommend the initial strength
and composition of the cadres of IAS, Indian Police Service (IPS) and Indian
Forest Service (IFoS) for the States of Uttar Pradesh and Uttaranchal in
terms of Section 72 (3) of the Reorganisation Act. The Committee was
further to recommend "as to which of the members" of the aforementioned
IAS/IPS/IFoS and "borne on the cadre of the existing State of Uttar Pradesh,
should be allocated to the cadres of Uttaranchal of the same Service." The
recommendations of the said Committee, a copy of which has been annexed
as Annexure Z-1 to the rejoinder-affidavit dated 4th May 2000 filed by the
petitioners, were the following:
"17.1 The determination of initial strength and
composition of the All India Service Cadres of the State
of Uttaranchal and the residual State of Uttar Pradesh
made within the authorized sanctioned strength of the
existing cadres of Uttar Pradesh. The demand of the
Government of Uttar Pradesh that Cadre Posts of Uttar
Pradesh should not be automatically reduced by the
number of posts being created for Uttaranchal has been
considered. The Committee, is however, of the view that
for the time being the existing cadre of Uttar Pradesh be
bifurcated between individual Uttar Pradesh and
Uttaranchal and any need based requirement for
additional cadre posts be considered at the time of cadre
reviews under Rule 4 of the IAS/IPS/IFoS of the Uttar
Pradesh and Uttaranchal Cadres respectively. The
Committee, in this context, further recommends that the
cadre review for Uttar Pradesh and Uttaranchal for the
All India Services be taken up as soon as the concerned
State Governments come up with the necessary
proposals."
In Para 17.6 of its report, the Committee recommended the total authorized
strength of the IAS/IPS/IFS "for the States of Uttaranchal and residual Uttar
Pradesh out of the existing State of Uttar Pradesh" to be determined as
under:
Type of Post Present State New State of
State Uttar Pradesh Uttaranchal
Uttar After
Pradesh reorganization
Duty posts
Reserve @ 40%
of SDP
Reserve @ 25%
of item 1 above
@ 3.5% of SDP
By promotion and
Selection @ 33.3%
6. Leave reserve and
7. Posts to be filled up
By direct recruit
Total authorized
15. It is clear that the aforementioned report formed the basis of the
notifications issued on 21st October 2000 whereby the strength of the State
cadre of Uttaranchal and the modified strength of the State cadre of U.P
were notified. From para 17.1 of the report, it appears that although the
Government of Uttar Pradesh had demanded that the strength of the Uttar
Pradesh cadre should be maintained as 273, the Committee recommended
that "the existing cadre of Uttar Pradesh be bifurcated between individual
Uttar Pradesh and Uttaranchal and any need based requirement for
additional cadre posts be considered at the time of cadre reviews under Rule
4 of the IAS/IFS/IFoS of the Uttar Pradesh and Uttaranchal Cadres
respectively." The Committee further recommended that "the cadre review
for Uttar Pradesh and Uttaranchal for the All India Services be taken up as
soon as the concerned State Governments come up with the necessary
proposals."
16. As far as the central government is concerned, it understood the next
cadre review for the State of U.P as falling due on 30th April 2003.
Accordingly, on 23rd January 2003 a letter 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 stating as under:
"The cadre review of IAS cadre of Uttar Pradesh is due
on 30.4.2003. 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.
2. I shall, therefore, be grateful if you could took into the
matter 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 case further."
17. Reminders were sent on 5th March, 3rd September, 17th September and
8th December 2003. However, the Government of Uttar Pradesh did not
respond. On 13th February 2004 a further reminder was sent by the
Government of India stating as under:
"The quinquennial cadre review of IAS cadre of Uttar
Pradesh was due on 30.4.2003. The State Government
was requested vide this Department‟s D.O. letter No.
11031/5/2003-AIS-II dated 24.1.2003 to furnish the
cadre review proposal by 28.2.2003. The proposal has
not been received in spite of four reminders dated the 5 th
March, 3rd September, 17th September and 8th December
2003.
2. The Supreme Court in WP 613/1994 (TANSOA v.
UOI) 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. In two cases, one pertaining to
IPS cadre posts and another pertaining to the IFS cadre,
the High Court has upheld the order of the CAT that the
applicant should be given appointment and seniority from
the retrospective date as there was considerable
unexplained delay.
3. I would, therefore, be grateful if you could issue
suitable directions to the concerned officials to furnish
the cadre review proposal by 28.2.2004 positively."
There was no response to the above reminder. The subsequent reminders
sent by the Government of India on 14th/17th June 2004 and 8th October 2004
also did not yield any response from the Government of U.P.
18. In both its affidavits filed before the Tribunal as well as in these
proceedings the consistent stand of the Government of India has been that
the cadre review was due on 30th April 2003. The Government of India has
further stated that a proposal was received by it from the Government of
Uttar Pradesh only in January 2005 and this led to the fixing of the
preliminary meeting on 21st February 2005. Thereafter the cadre review
meeting under the Chairmanship of the Cabinet Secretary was held on 20th
April 2005 and the minutes duly signed by the Chief Secretary, Government
of Uttar Pradesh was received by the Government of India on 27th June
2005. After the approval of the Minister of State (Personnel and Pension) a
notification was issued on 25th August 2005 re-fixing the cadre strength of
the State of Uttar Pradesh as under:
5. Posts to be filled by promotion and selection under
7. Posts to be filled up by Direct Recruitment
19. On 29th August 2005 the Chief Secretary, Government of Uttar
Pradesh wrote to the Central Government explaining that "the increase in
cadre strength has been made by 68 posts as per need and requirement in the
cadre review due on 30th April 2003 from 467 posts to 534 posts i.e. about
15%. Non-availability of 15% officers is substantial in number and its
shortage is adversely affecting the administrative functioning of the State of
Uttar Pradesh." The Chief Secretary requested that "the Government of India
may kindly issue the formal notification of cadre strength as per the minutes
finalized on 20th April 2005 immediately and thereafter determine the
vacancies of 33 posts for SCS to be filled in by appointment by selection to
the Uttar Pradesh IAS cadre for the vacancies as on 1st January 2005 and if
necessary, the power under Rule 3 (1) of the All India Service (Condition of
Service - Residuary Matters) Rules, 1960 may be invoked by the Central
Government."
20. On 6th January 2006 a letter was written by the Secretary,
Appointment Division-I, Government of Uttar Pradesh to the Secretary,
Personnel & Training Department, Government of India giving the total
number of those working in the SCS as 109 out of which 48 had been
selected in relation to the Selection List for the years 2000 (Review), 2001,
2002, 2003 and 2004 and 61 were officials of the SCS working as on 1st
January 2005. The total vacancies available for promotion to the IAS for the
year 2005 from the SCS was determined as 13. It was noted that in terms of
the Cadre Review Notification dated 25th August 2005, the posts in the
promotion quota had been increased by 21. It was pointed out that no
appointment could be made in the IAS from the non-SCS in the year 2005
and, therefore, officials of the SCS could be promoted to seven posts
available in the Non-SCS. Thus 20 posts were available for the appointment
through promotion in the IAS from SCS for the year 2005.It is further
pointed out that as on 1st January 2006, 105 officials of SCS and 13 officials
of Non-SCS were working in the State. Therefore, for the year 2006 14
vacancies would be available for promotion in the IAS from SCS and 11
posts would be available for appointment through selection in the IAS from
Non-SCS.
21. Based on the above determination by the State Government, the Central
Government issued on 1st February 2006 the following letter to the State
Government:
"The Chief Secretary,
Government of U.P.,
Lucknow.
Sub.: Determination of vacancies for promotion in the
IAS during the years 2003-2005 - proposal reg.
Sir,
I am directed to refer to your letter No. 43/2-1-2006-
29/1(1)/2005 dated 06.01.2006 on the above subject and
to say that in terms of the provisions contained in Rule
4(2)(b) of the IAS (Recruitment) Rules 1954 read with
regulation 5(1) of the IAS (Appointment by Promotion)
Regulations 1955, it has been decided that during the
years 2005 and 2006 recruitment by promotion to IAS
UP Cadre from amongst members of the State Civil
Service of UP may be made as follows:
Sl.No. Year No.of vacancies
1. 2005 19 (Nineteen)
2. 2006 14 (Fourteen)
2. It has further been decided in terms of the
provisions contained in Regulation 3 of the IAS
(Appointment by Selection) Regulations 1997 read with
the relevant provisions in the Recruitment Rules that the
number of posts up to which recruitment may be made by
selection to IAS U.P. Cadre during the current year is 11
(Eleven) only.
3. It is requested that further action in terms of the
provisions contained in the statutory promotion/selection
Regulations may kindly be taken for preparation of
Select List for the years 2005-2006 under intimation to
the Government of India.
Yours faithfully,
Sd/-
(Jagan Lal)
Under Secretary to the Govt. of India."
Proceedings before the Tribunal
22. Since the determination of the vacancies for being filled up by promotion
took place only on 1st February 2006 and by that date admittedly both the
petitioners had crossed the age of 54 years, they obviously could not be
considered for promotion to the IAS. Accordingly, these petitioners, along
with certain others similarly placed, filed an application OA No. 1097 of
2006 in the Tribunal on 29th April 2006 seeking the following reliefs:
"8.1 Quash and set aside Regulation 1(2) of the amended
Indian Administrative Service (Fixation of Cadre
Strength) Regulations 1955 whereby the said cadre
review of the Indian Administrative Service (UP Cadre)
which was due to be effective from 30th April 2003, has
been made operative with prospective effect i.e. the date
of publication i.e. 25th August 2005.
8.2 Quash and set aside the consequential order dated 1 st
February 2006 whereby the vacancies for promotion in
the IAS during the year 2005-06 have been determined
and notified to be filled up by promotion and selection
from amongst State Civil Service Officers and Non-State
Civil Service;
8.3 Direct the respondents to reconsider the question of
the UP State Civil Service Cadre Officers to the Indian
Administrative Service on the basis of re-determined
strength of cadre, vide notification dated 25 th August
2005 (No. 11031/5/2003-AIS-II-A dated 25th August
2005) treating the same to be effective in the year 2003
and;
8.4 Direct the respondents to consider the case of the
applicants for promotion to the Indian Administrative
Service on the basis of quota available in the cadre for
the year 2003-04 with all consequential relief including
seniority and pay fixation."
23. The stand taken by the Government of India before the Tribunal has
been adverted to earlier. As far as the Government of U.P. is concerned, the
stand taken in its affidavit dated 5th July 2006 before the Tribunal was that
"after Cadre Review of 1998 another Cadre Review was done much before
its schedule (i.e. five years) in view of the bifurcation of State of Uttar
Pradesh and Uttaranchal. The relevant Cadre Review notification was issued
on 21st October 2000 and accordingly, next Cadre Review was due in the
year 2005, which was done in time and the impugned letter dated 1 st
February 2006 was issued after the said exercise of Cadre Review."
24. It must be mentioned at this stage that in OA No 1097 of 2006 no interim
order was passed by the Tribunal. The petitioners and certain others then
filed OA No. 1137 of 2006 before the Tribunal seeking the quashing of letter
dated 1st February 2006 issued by the central government notifying the
vacancies to be filled up by the promotion for the year 2006 as 19 and
praying that the review DPC for appointment by promotion from amongst
eligible SCS Officers of UP against the remaining unfilled vacancies of the
year 2001, 2002 and 2004 should be held on the basis of the year wise
selection. In OA No. 1137 of 2006 an ex parte interim order dated 26th May
2006 staying the operation of the order dated 1st February 2006 was passed
by the Tribunal. The Tribunal subsequently passed an order dated 8th August
2006 directing that the DPC could proceed but "the effect of the DPC shall
remain stayed till the next date."
25. At this stage note must be taken of certain proceedings arising out of the
impugned notification which are pending in the Allahabad High Court. It
appears that certain other officers of the SCS had filed OA No. 362 of 2006
(Mahesh Chandra & Ors. v. Union of India) in the Lucknow Bench of the
Tribunal challenging the notification dated 1st February 2006. Initially vide
interim order dated 18th August 2006 the DPC was stayed by the Lucknow
bench of the Tribunal. By a subsequent order dated 19th October 2006 the
Lucknow Bench modified the earlier interim order dated 18th August 2006
so as to provide that "the selection process may take place but the result of
such selection shall not be made public or acted upon till the pronouncement
of the final order in the Original Application and the selection and its result
shall be subject to final outcome of the Original Application." By a final
order dated 24th November 2006 the Lucknow Bench upheld the notification
dated 1st February 2006 and the said judgment was challenged before the
Allahabad High Court by Shri Mahesh Chandra in Writ Petition No. 1718
(S/B) of 2006. An interim order dated 18th December 2006 was passed by
the Division Bench of the Lucknow Bench of the Allahabad High Court to
the effect that till the next date of hearing the selection process could go on,
but the final results should not be declared. The Division Bench of the
Allahabad High Court in its order dated 18th December 2006 also determined
the questions that arose for consideration in the writ petition. These inter alia
include the question "whether Rule 8 (2), Rule 9 (1) and proviso of the Rules
1954 read with Regulation-3, Regulation-5 of the Regulations 1997 would
mean selection of Non-SCS Officers to be decided by taking into account
15% of 33-1/3% posts of the entire cadre strength under Rule-8 or it would
mean 15% of the total Officers recruited under Rule 8 (2)." As will be
explained later, the petitioners have not urged this question and this Court
too does not propose to examine it in these proceedings.
26. Reverting to the case on hand, the Principal Bench of the Tribunal, after
hearing the parties, passed the impugned judgment dated 15th December
2006 dismissing both OA Nos. 1097 and 1137 of 2006. The gist of the
impugned judgment of the Tribunal is as under:
(a) The two applications i.e. OA No. 1097 and 1137 of
2006 "being separate and not identical, cannot be said to
be hit by Order 23 Rule 1 of CPC or by any other
Rule/Provisions of the Code of Civil Procedure."
(b) The notification dated 21st October 2000 brought
about the initial constitution of the IAS cadres of State of
Uttar Pradesh and Uttaranchal. The notifications
concerning the reexamination and review of cadre
strength could not have retrospective effect.
Accordingly, the prayer for directing the State
Government to give retrospective effect to the
notification dated 25th August 2005 was declined.
(c) The chance of promotion being neither a statutory nor
a fundamental right, the relief sought by the petitioners
could not be granted since it was based on "hypothetical
notions and chances of promotion expected to flow from
giving retrospective effect to the notification."
(d) The preparation of year-wise lists for promotion of
SCS officers for filling up of the vacancies determined
for them every year is unambiguously mandated in the
relevant rules and regulations.
(e) The respondents were duty bound to convene the
meetings of the Review DPC/Selection Committee to fill
up the posts, which remained unfilled in the years 2001,
2002 and 2004.
Proceedings before this Court
27. In the present writ petition, an interim order was passed by this Court on
15th May 2007 directing the Respondent Government of U.P to seek leave
from the Court if they wished to fill any of the vacancies. CM No. 13535 of
2008 was filed by the Government of Uttar Pradesh seeking a modification
of the aforementioned interim order on the ground that there was an urgent
need to fill up the posts lying vacant. However, since the main writ petition
was itself taken up for final hearing, no orders were passed in the said CM.
28. It must be mentioned that an application being CM No. 9322 of 2008
was filed on 6th July 2008 by the Government of Uttar Pradesh seeking to
file a "better" counter affidavit. The said application was allowed by this
Court dated 9th July 2008 and the said "better" counter affidavit was taken
on record. In the said application, CM 9322 of 2008, while acknowledging
that in the earlier counter affidavit filed by it in the writ petition the
Government of U.P had contended that the next cadre review after 2000 was
due only in 2005, it was explained that
"5. .. a new development has also taken place, when the
State Government received a letter dated 21st May 2008
from the Central Government, whereby all the State
Governments have been asked to send the pending
proposals for "Quinquennial Cadre Review" of all the
India Services Cadres latest by first week of June 2008 so
that Cadre Review meeting could be held for all the All
India Services at one time."
Thereafter it was explained in the said application as under:
"6........ Now on the basis of the legal opinion and also
after re-examining the entire matter in-depth, including
the report of the Advisory Committee, it is found
appropriate for the State Government to adopt the
submissions made by the Cadre Controlling Authority i.e.
Central Government in its counter affidavit filed in the
instant writ petition. Therefore, it is necessary for the
answering respondent to file a better counter affidavit in
the matter, in supercession of the submissions earlier
made by it."
29. In the "better" counter affidavit of the Government of U.P, in paras 3 to
8, the entire process that transpired with the formation of the State of
Uttaranchal and the events subsequent thereto have been explained. The
Government of the Uttar Pradesh now concurs with the Central Government
that on 21st October 2000, the composite cadre of the then State of Uttar
Pradesh was simply bifurcated between Uttar Pradesh and Uttaranchal into
467 and 68 posts respectively and no post was increased or decreased in the
year 2000. No cadre review committee meeting for consideration of need
based requirement for additional cadre posts was held at the time of
bifurcation. Further in para 8 it is stated as under:
"8. That though reference of Rule 4 (2) of IAS (Cadre)
Rules, 1954 in the Notification dated 21.10.2000 issued
by the Government of India can cause confusion, and it
can give an impression of it being a "Quinquennial Cadre
Review", however an in-depth analysis of the relevant
legal provisions clearly established the fact that it was
merely a change introduced in the strength of the cadre
due to cadre bifurcation and this was also the stand taken
by the Cadre Controlling Authority of the IAS Cadre i.e.
Central Government in its counter affidavit, which says
that the cadre determination exercise held in the year
2000 by the Government of India was in fact an exercise
of "simple cadre bifurcation". In this view of the matter,
since the last "Quinquennial Cadre Review" of the IAS
Cadre was held on 30.4.1998, the next "Quinquennial
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 affidavit."
As regards the retrospectivity of the cadre review, it is stated as under:
"As stated earlier, the Central Government is the Cadre
Controlling Authority of the IAS Cadre under the Rules
and the State Government is only the implementing
authority. Therefore the State Government has enforced
the said Notification dated 25.8.2005 in the State of U.P.
only with effect from the date of its publication in the
official gazette. Accordingly the vacancies becoming
available as a result of the "Quinquennial Cadre Review"
during the year 2005 have been taken into account for
determining the vacancies to be filled by promotion and
selection and the same were notified vide consequential
order dated 1.2.2006 by the Government of India as
contained at page 106 of the writ petition."
However, as regards the issue of retrospectivity, the learned counsel for the
Government State of U.P during arguments informed this Court on
instructions that it would have no objection to a direction by this Court that
the exercise of cadre review should be undertaken with reference to the
vacancy position as on 1st January 2004.
30. For its part, the Central Government has maintained a consistent stand
before the Tribunal as well as before this Court. At one stage on 25 th
September 2008 the parties informed this Court that the matter could be
amicably resolved. Accordingly, it was recorded by this Court that "learned
counsel for the parties as well as the interveners say that they will sit down
and arrive at a draft statement." However at the hearing on 22nd October
2008 this Court was informed by the Central Government that it was not
agreeable to any settlement as proposed. The stand of the Central
Government as indicated in its letter dated 15th October 2008 to its counsel is
that "only those vacancies are taken into account, which are categorically
available as on 1st January of the year for which the selection committee
meeting is held. In this case, the increase in the cadre strength was notified
on 25th August 2005 and therefore, the vacancies arisen on account of
increase in promotion quota consequent to increase in cadre strength cannot
be said to be available on 1st January 2003. In addition, the cadre review is
undertaken to meet future administrative requirement and the same is
definitely not done with a view to create promotional opportunities. As
such, the cadre review conducted in the year 2005 cannot be given
retrospective effect."
Submissions of Counsel
31. We have heard the submissions of Mr. P.S. Patwalia, learned Senior
counsel appearing for the petitioners, Mr.Sunil Gupta, learned Senior
counsel for the interveners, Mr. H.K. Gangwani, learned Standing counsel
for the Union of India and Mr. Upender Nath Mishra, learned Standing
counsel for the State of Uttar Pradesh.
32. It is submitted by Mr. Patwalia, learned Senior counsel that a
harmonious reading of the statutory rules would indicate that the constitution
of a new cadre is contemplated under Rule 3 (1) of the Cadre Rules and the
review of the strength of an existing cadre is to take place in terms of Rule 4
(2) of the Cadre Rules. The stand of the Central Government and the
Government of U.P that the next cadre review for the State of Uttar Pradesh
was due on 30th April 2003 was based on a correct understanding of the
relevant Rules and the Tribunal ought not to have held to the contrary. It is
submitted that the mistake of not conducting the cadre review when it fell
due ought to and can be undone by appropriate corrective action. The
consideration of the petitioners for promotion to the IAS as on 1st January
2004 could not be undertaken because the Government of U.P failed to
respond to the repeated reminders of the Central Government which led to
the postponement of the cadre review. Relying on the decisions of the
Supreme Court in S. Ramanathan v. Union of India (2001) 2 SCC 118 and
Union of India v. Vipin Chandra Hiralal Shah (1996) 6 SCC 721 learned
Senior counsel for the petitioners submits that notwithstanding the insertion
of the word "ordinarily" in Rule 4 (1) of the Cadre Rules, it is only in
extraordinary circumstances that the State Government can plead inability to
undertake a cadre review as and when it falls due. He submits that if the
interpretation as suggested by the petitioners is accepted, then there should
be no difficulty in directing the further consequential steps and redoing the
exercise of notification of the vacancies as on 1st January 2004. There was
nothing so sacrosanct about the notification of 1st February 2006 since it was
based on the cadre review which took place in 2005 as a result of which the
notification dated 25th August 2005 was issued. If indeed the cadre review
had taken place on 30th April 2003, the vacancy position as on 1st January
2004 would have been taken into consideration. He states that none of the
petitioners would claim any back wages and would be satisfied if they were
considered for promotion to the IAS as on 1st January 2004. He further
submits that the entitlements of the interveners can also be examined with
reference to the same date i.e. 1st January 2004 and whatever vacancies fall
to their lot should be given to them as per their entitlement. He further
clarified that the present petition is not concerned with the determining of
the exact number of vacancies since that is an issue pending before the
Allahabad High Court.
33. Mr. Upendra Nath Misra, learned counsel for the Government of Uttar
Pradesh while explaining the changed stand in the "better affidavit" as
regards the cadre review falling due on 30th April 2003, added that the
interveners could not have any legitimate expectation that they would be
selected. As regards the notification issued on 1st February 2006, he
informed the court that the consequential process of making appointments to
the IAS by way of promotion and selection was yet to be completed. He
submitted on instructions that notwithstanding what may have been
contended in this regard in the affidavit filed before this Court, the
Government of U.P would have no objection if the cadre review exercise
and the consequential determination of available vacancies takes place with
reference to the vacancy position as on 1st January 2004.
34. Mr. H.K. Gangwani, learned counsel appearing for the Union of India,
maintained the stand communicated to him by the Central Government by its
letter dated 15th October 2008. He further submitted that since the
notification issued by it pertained to the vacancy position as on 1st January
2006 it would not be possible to back date any of the promotions to an
earlier date only because the cadre review was due on 30th April 2003.
35. The most spirited opposition to the plea of the petitioners is from the
interveners represented by Mr. Sunil Gupta, learned Senior counsel. It may
be recalled that the interveners represent the non-SCS officers who expect to
be „selected‟ to the IAS. At the outset it was urged by Mr.Gupta that the
Court should not go by the prevaricating stand of the Government of U.P
which, according to him, was motivated by political compulsions. He
submitted that the correct interpretation of the relevant provisions could not
be dependent upon the changing stand of a government. Their understanding
of what took place in 2000 to be a simple "bifurcation" was erroneous.
According to him, in terms of the Section 72 (2) of the Reorganisation Act
read with Section 3 thereof two States were constituted: Uttaranchal and
Uttar Pradesh. Therefore, the two cadres that came to be set up initially were
those of Uttaranchal and Uttar Pradesh. He pointed out to the first affidavit
filed by the Central Government before the Tribunal to contend that what
took place on 21st October 2000 was in fact a cadre review in terms of Rule
4 (2). According to him the proceedings of the Committee constituted under
Section 76 show that even the decision to defer consideration of the request
of the State Government to retain the strength of senior officers at 273
tantamounted to a cadre review. Consequently, the next cadre review was
due only in 2005 and not earlier.
36. Mr.Gupta further submitted that even if one were to accept the stand of
the Central Government or the State Government that cadre review was due
on 30th April 2003, there was no question of back dating the exercise
because the vacancy position as on 1st January 2004 was not known and not
considered by the Central Government in the review meeting held in 2005 as
a result of which the letter dated 6th February 2006 was issued. He relied
upon the judgment of the Supreme Court in Tamil Nadu Administrative
Service Officers Association v. Union of India AIR 2000 SC 1898 to argue
that there was no vested right of any of the petitioners to seek an increase in
the cadre strength much less to seek a back dating such exercise. He further
submitted that the petitioners were unable to make the regular promotion
process for the years 2001, 2002, and 2004 and therefore, they cannot seek
promotion to the IAS by an indirect method by seeking to back date the
cadre review exercise itself. He submitted that it is not possible to imagine
what would have been the vacancy position as on 1st January 2004 and re-do
the exercise on that basis. Lastly, it was submitted that the petitioners were
guilty of laches and delay in pursuing their remedies; if indeed they were
aggrieved by the failure of the governments to hold a cadre review on 30th
April 2003 they should have approached the Tribunal much earlier.
Was there a cadre review on 20th October 2000?
37. The first issue that arises for consideration is whether what took place on
21st October 2000 was a simple "bifurcation" of the existing State cadre
between the State of Uttar Pradesh and the newly formed State of
Uttaranchal or was it an initial constitution of two State cadres. A plain
reading of the provisions of the Reorganisation Act shows that the State of
Uttaranchal was carved out of the State of Uttar Pradesh. Section 3 of the
Reorganisation Act lists out the districts which formed part of the existing
State of U.P, which would form part of the State of Uttaranchal. The
wording of Section 72 (2) indicates that two separate cadres were created,
one for the State of Uttar Pradesh and the other for the State of Uttaranchal
in respect of the IAS/IFoS/IPS. Section 72 (4) states that "the members of
each of the said services borne on the Uttar Pradesh cadre thereof
immediately before the appointed day, shall be allocated to the State
cadres........" What is therefore acknowledged is that certain members of
the IAS who were borne on the cadre of the State of Uttar Pradesh were to
be allocated to the State of Uttaranchal. It is not possible to accept the
contention of the interveners that what was constituted with the passing of
the Reorganisation Act were two new cadres: one of the Uttar Pradesh and
other of Uttaranchal. The cadre of the State of U.P continued as such with
only its strength being depleted with the creation of the new cadre of the
State of Uttaranchal. The last cadre review for U.P, before the reorganisation
of that State took place in 2000, was in 1998. Therefore, as far as U.P was
concerned the next cadre review, in terms of the amendment to the Cadre
Rules in 2000, was due o 30th April 2003. The proceedings of the Committee
constituted under Section 76 also indicate that this was also its
understanding of the legal position emerging from the formation of the new
State of Uttaranchal. The Committee observed that what remained in Uttar
Pradesh after allocation of posts to the newly formed cadre of the State of
Uttaranchal was the "residual" cadre of the State of Uttar Pradesh.
Therefore, as far as the State of U.P. is concerned the next cadre review was
due after five years from the previous review i.e. on 30 th April 2003. In the
considered view of this Court, the central government proceeded on a
correct understanding of this position in law when it wrote to the
Government of U.P. seeking a joint meeting for undertaking the exercise in
2003 itself. What took place on 20th October 2000 was not a cadre review
and the proceedings of the Committee are consistent with this position. The
decision on the demand by the Government of U.P. to retain the strength of
senior posts in the cadre of U.P. at 273 was deferred for being considered at
the cadre review meeting which, in the understanding of that Committee,
was due in 2003. The argument of the interveners to the contrary is based on
a strained logic that does not flow from either a plain reading of the relevant
legal provisions or the proceedings of the Committee.
38. It was contended for the interveners that there was no illegality resulting
from the failure to undertake a review after the expiry of five years from
1998 particularly since the amendment in 2000 to Rule 4(1) of the Cadre
Rules by the insertion of the word "ordinarily" took away the mandatory
nature, if any, of such requirement. The purport of the word "ordinarily" has
been explained by the Supreme Court in VipinChandra Hiralal Shah. In
para 9 of the judgment it was explained as under (SCC, p.727):
"9. Clause (1) of Regulation 5 of the Regulations differs
from clause (1) of Regulation 4 which was considered by
this Court in Mohan Lal Capoor in the sense that the
word "ordinarily" found in clause (1) of Regulation 5
was not contained in clause (1) of Regulation 4. The
insertion of the word "ordinarily' does not, in our
opinion, alter the intendment underlying the
provision. It only means that unless there are good
reasons for not doing so, the Selection Committee
shall meet every year for making the selection."
(emphasis supplied)
39. The affidavits filed by both the Central Government and the State
Government do not indicate that there any extraordinary circumstance
justifying the postponement of the cadre review exercise beyond 30 th April
2003 when it fell due. No factual foundation has been laid by the State
Government, much less by the interveners, to enable the Court come to a
conclusion that the postponement of the cadre review was justified. To that
extent, the insertion of the word "ordinarily" in Rule 4 (1) of the Cadre
Rules by the amendment of 2000, does not really advance the case of the
interveners.
40. We are also unable to accept the submission of the learned Senior
counsel for the interveners that the changed stand of the State Government,
as expressed in the "better affidavit" should be ignored as it has come about
on account of certain political compulsions. It is open to a party to revise its
stand on the interpretation of the legal provisions during the pendency of
proceedings before a tribunal or court. That party does so at its own risk.
That is by itself not going to determine the decision of the judicial forum
before which such interpretation is advanced. While it is possible that the
Tribunal may have taken a different view if the present "better" affidavit of
the Government of U.P had been filed before it, it need not have. This part
of the affidavit deals only with a purely legal question and not on any factual
detail. It is therefore not necessary to examine the submission of the
interveners that changed stand of the Government of U.P was on account of
political compulsions. In any event the explanation offered by the
Government of U.P for the change in its stand appears to be plausible one.
This Court has however not gone only by the affidavits of the Central and
State Governments in arriving at the conclusion that the next cadre review
for U.P was due on 30th April 2003. The provisions contained in the relevant
Rules and Regulations support this conclusion.
The issue of retrospectivity of the cadre review exercise
41. The next question that arises for consideration is whether the notification
dated 25th August 2005 notifying the revised cadre strength ought to be set
aside with a consequential direction to undertake the exercise afresh with
reference to the vacancy position as of 1st January 2004. In other words is it
possible for this Court to direct that the exercise that should have been
undertaken as on 30th April 2003 should now be undertaken.
42. This question has arisen earlier before the Courts and a reference may be
made to some of the decisions. In S. Ramanathan, the appellants were State
Police Service Officers, who were seeking promotion to the Indian Police
Service. The question was whether the triennial review for the determination
of the cadre strength in terms of the IPS (Cadre Rules) 1954 was mandatory
and whether the failure to undertake such a review would enable the
aggrieved parties to seek a mandamus from the court. The Court noticed that
although an amendment [similar to the amendment in 2002 to Rule 4(1) of
the cadre rules in this case] was made to the IPS (Cadre Rules), the case
before it was governed by the unamended provision. Nevertheless, the
consequential directions issued by the Supreme Court are relevant for the
present case. The Court distinguished its earlier decision in T.N.
Administrative Service Officers Assn. v. Union of India 2000 (5) SCC 728
where the request for a mandamus was declined by observing that in the
latter case the delay in effecting the review "was found to have been
sufficiently explained by the Union Government and that, therefore, the
court said that the question of fixation of seniority of the promotees with
retrospective effect cannot be granted." It was observed in S. Ramanathan
that "in the case in hand, in the absence of any explanation for not
conducting triennial review within the specified period of three years, the
aforesaid decision (in TN Administrative Service Officers Assn.) will have
no application." On the other hand, reliance was placed upon the decision in
Devendra Narayan Singh v. State of Bihar 1996 (11) SCC 342 and it was
held as under (JT, p.277):
"the Court has been insisting performance of duty upon the
authority under the statute quite meticulously and on the
admitted position that the process of determining the cadre
strength was initiated in the year 1989 and it was finalised
in the year 1991, there is no rhyme and reason why the
respondents will not be directed to reconsider the question
on the basis of the altered strength of the cadre, as if it was
so altered in the year 1989 when the process of
determination of cadre strength was initiated. We,
accordingly set aside the impugned orders of the Tribunal and
direct the Union Government as well as the State Government
to reconsider the question of promotion of the State Cadre
Officers to the Indian Police Service on the basis of the re-
determined strength of the cadre, treating the same to be in
the year 1989 and if on such a reconsideration relief would
be available to any of the appellants for promotion to the
IPS on the basis of the quota available to them in the cadre,
the same may be given to them. This exercise may be done
within a period of six months from the date of receipt of this
order." (emphasis supplied)
43. After referring to the decision in Syed Khalid Rizvi v. Union of India
1993 Supp. (3) SCC 575 which was in the context of the mandatory
requirement of preparing a select list, the Supreme Court in Vipinchandra
Hiralal Shah (1996) 6 SCC 721 interpreted Regulation 5 of the Promotion
Regulations and held (SCC, p.728):
"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 of making 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." (emphasis
supplied)
44. Ultimately in VipinChandra Hiralal Shah the Court issued the
following directions were issued in para 13 of the judgment (SCC, p.729):
"13. Therefore, while upholding the judgment of the
tribunal that the respondent is entitled to seek fresh
consideration on the basis that the selection should be
made for vacancies occurring in each year separately, but
in substitution of the directions given by the Tribunal in
that regard, the following directions are given:
(1) The number of vacancies falling in the quota
prescribed for promotion of State Civil Service Officers
to the Service shall be determined separately for each
year in respect of the period from 1980 to 1986.
(2) The State Civil Service Officers who have been
appointed to the Service on the basis of the impugned
Select List of December 1986/January 1987 and were
senior to the respondent in the State Civil Service shall
be adjusted against the vacancies so determined on year
wise basis.
(3) After such adjustment if all the vacancies in a
particular year or years are filled by the officers referred
to in para (2), no further action need be taken in respect
of those vacancies for the said year/years.
(4) But, if after such adjustment vacancy/vacancies
remain in a particular year/years during the period from
1980 to 1986, notional Select List/Lists shall be prepared
separately for that year/years on a consideration of all
eligible officers falling within the zone of consideration
determined on the basis of the vacancies of the particular
year.
(5) If the name of the respondent is included in the
notional Select List/Lists prepared for any particular
year/years during the period 1980 to 1986 and if he is so
placed in the order of merit so as to have been entitled to
be appointed against a vacancy of that particular year, he
be appointed to the Service against that vacancy of that
year with all consequential benefits.
(6) The vacancy against which the respondent is so
appointed would be adjusted against the subsequent
vacancies falling in the promotion quota prescribed for
the State Civil Service Officers.
(7) Such appointment of the respondent would not affect
the appointments that have already been made on the
basis of the impugned Select List of December
1986/1987."
45. In view of the above settled position in law, which does not appear to
have been placed before the Tribunal, this court is unable to concur with the
Tribunal on this aspect. Further, it is not possible to accept the objection of
the Central Government to undertaking the cadre review exercise with
reference to April 30th 2003 and for determining the vacancy position as on
1st January 2004. The court places on record and binds to the petitioners to
their submission that if a result of such cadre review and the consequential
consideration of their cases they get promoted to the IAS, they will not claim
any back wages and that the retrospectivity of their promotion will count
only for the purposes of their seniority. The interim order passed by this
court should adequately take care of other consequential orders that may
have to be made if such direction is issued. This Court is unable to agree
with the Tribunal that no retrospective exercise can be undertaken.
46. At this juncture, it would be useful to notice the proviso to Rule 5(1) of
the Promotion Regulations which mandates the yearly preparation of the
select list. It would not be justified for the governments at the Centre and the
State to delay the exercise of cadre review and then present the affected
parties with a fait accompli by saying that the exercise cannot be carried out
retrospectively even if admittedly there was a failure on their part to carry
out such exercise in time. As far as the present case is concerned, there
should be no difficulty in undertaking the cadre review exercise as indicated
hereinabove. It is made clear that the exercise that preceded the issuance of
the impugned notification dated 1st February 2006, including determining
the vacancies available to those whom the interveners represent, should be
undertaken as if it was taking place on 30th April 2003 and with reference to
the date of 1st January 2004.
Conclusion and directions
47. Accordingly, the impugned judgment dated 15th December 2006 of the
Tribunal is set aside. The impugned notification dated 1st February 2006 as
well the letter dated 6th January 2006 and notification dated 25th August
2005 on which it is based are hereby set aside. It is clarified that the Cadre
Review for the State of Uttar Pradesh was due on 30th April 2003. The
Central Government and the State Government will now proceed to
undertake the cadre review exercise which fell due as on that date with
reference to the vacancy position as on 1st January 2004 in the manner
indicated hereinabove within a period of eight week from today. The further
consequential steps of considering which of the petitioners are eligible for
promotion and which if any of the non SCS officers (selectees) are qualified
for selection should be completed within a further period of four weeks
thereafter. We clarify that we have not expressed any opinion on the issue
(as mentioned in para 25 of this judgment) pending consideration by the
Allahabad High Court, Lucknow Bench.
48. With these directions, the petitions and the pending applications are
disposed of with no order as to costs.
S. MURALIDHAR, J.
SURESH KAIT, J.
November 14, 2008
rk
