Delhi High Court

Akhilesh Kumar Dixit & Ors. vs Union Of India And Anr. on 16 July, 2013

Author: Gita Mittal

$-1
*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+                   W.P.(C) No.2977/2010


%                                 Date of decision: 16th July, 2013
      AKHILESH KUMAR DIXIT & ORS.                       ..... Petitioners
                         Through:    Mr. Anshuman Sinha, Adv.

                         versus

      UNION OF INDIA AND ANR.                 ..... Respondents
                    Through: Mr. Joginder Sukhyo, Adv.

      CORAM:
      HON'BLE MS. JUSTICE GITA MITTAL
      HON'BLE MS. JUSTICE DEEPA SHARMA

GITA MITTAL, J. (Oral)

1. The instant writ petition has been filed by the petitioners praying for

issuance of directions to the respondents for considering the petitioners for

promotions to the post of Superintending Engineer (Civil) in the Border

Roads Engineering Service (BRES) which is also controlled by the

Department of Personnel and the Ministry of Defence. The petitioners have

complained that statutory guidelines were issued by the Central Government

through a letter dated 6th May, 1972 by the Department of Personnel and

Training to carry out a mandatory Cadre Review after an interval of every

three years. However, even after expiry of more than 23 years no Cadre

Review of Boarder Roads Engineering Services (Civil) {hereinafter referred

to as „BRES (Civil) Cadre‟} has been undertaken.

2. The petitioners contend that BRES (Civil) Cadre was declared as an

Organised Group „A‟ Service of Government of India in the year 1977 and as

per the Government policy atleast 6 to 7 Cadre Reviews should have been

undertaken till date. In this regard, the petitioners have contended that the

review was to be undertaken by the Border Roads Engineering Service.

3. To support the submission that the Cadre Review was binding, the

petitioners have drawn our attention to the recommendation of the 5 th Pay

Commission which were duly approved by the Central Government to the

effect that the Cadre Review with regard to the Organised Group „A‟ services

must be carried out within a maximum period of every five years.

4. In the writ petition, the petitioners have given details of the Cadre

strength of BRES, however, for purpose of the direction, which we proposed

to issue, the same does not require to be set out in great detail.

5. We may note that in a matter relating to the State Civil Service of the

State of Uttar Pradesh, the Supreme Court had an occasion to deal with the

similar issues in Civil Appeal No.2651-52 of 2010 titled as Union of India &

Another vs. Hemraj Singh Chauhan & Others. After detailed consideration,

the Supreme Court has observed as follows:-

"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 is ordinarily mandatory subject to exceptions which may be justified in the facts of a given case. Surely, lethargy, in-action, an absence of a sense of responsibility cannot fall within category of just exceptions."

6. The respondents appeared in answer to the show cause notice issued by

this court and have filed a counter affidavit on record. Respondents No.1 to 3

had admitted receipt of a proposal for Cadre Review from the Respondent

No.4 and had filed an affidavit in compliance of the directions issued on 20 th

October, 2011, disclosing as follows:

"2. That Respondent No.6 (Director General of Border Roads) had submitted a Cadre Review proposal of all Group „A‟officers of General Reserve Engineer Force of Border Roads Organisation to Respondent No.5 (Border Roads Development Board). Respondent No.5 examined the proposal and detected many discrepancies/shortcomings in the proposal. Accordingly, Respondent No.5 returned the proposal to Respondent No.6 Organisation with the request to take necessary action on the observations made/clarifications sought and submit the revised proposal. Respondent No.6 submitted the revised proposal to Respondent No.5 on 14.2.2011. The revised proposal was examined by the Respondent No.5 and observed some further discrepancies/shortcomings in the light of the DOP&T guidelines in the matter. Hence the proposal was returned to Respondent No.6 on 5.4.2011. Respondent No.6 is examining the matter and the revised proposal will again be in due course for consideration of Respondent No.5 in the light of DOP&T guidelines.

3. That Respondents No.5 and 6 though receive their budgetary grants through Respondent No.4

(Ministry of Road Transport and Highways) but otherwise are under the administrative control of Respondent No.3 (Ministry of Defence). Thus Respondent No.4 has no role in the administrative matters of Respondents no.5 and 6. Therefore, name of Respondent No.4 may be deleted from the list of respondents.

4. That as the proposal has not yet been rectified and confirmed by Director General of Border Roads and as such not yet finalized by the administrative Ministry, the same has not yet been forwarded to Respondent No.2 (DOP&T) for taking a final view as per extant guidelines. Since the cadre review proposal is not pending with DOP&T, name of Secretary, DOP &T may also be deleted from the list of respondents."

7. Vide orders dated 19th March, 2013, we had directed the respondents to

place an affidavit on record disclosing the status of the Cadre Review of the

BRES (Civil) Cadre.

8. The factual narration and position of Cadre Review is disclosed in the

affidavit dated 11th July, 2013 which was filed pursuant to the directions

contained in order dated 19th March, 2013. Vide the said affidavit, the

respondents have made the following disclosures :-

"3. That I say the first Cadre Review of the Border Roads Engineering Service (BRES) (Civil) Cadre was undertaken in 1987.

4. That I say, thereafter, on 16.1.1989 Government had created one post of Additional Director General (ADG) for BRES (Civil) by upgrading one post of Chief Engineer (Civil).

5. That in 2006 Cabinet Committee on Security (CCS) had inter alia approved restructuring of Border Roads Organisation (BRO). As per the restructuring approved by the CCS, the number

of posts were increased in different grades of BRES (Civil) cadre as indicated below:

                Name of the        Strength      Revised sanctioned       No. of
                   Post          before 2006        strength after         posts
                                 restructuring        approval of       increased/
                                                 restructuring by the   decreased
                                                     CCS in 2006
              Addl. DGBR               1                   2              (+) 1
              Chief Engineer           9                  14              (+) 5
              Superintending          40                  66             (+) 26
              Engineer
              Executive              111                 194             (+) 83
              Engineer
              Asstt. Executive       224                 360             (+) 126
              Engineer

6. That thereafter a cadre review proposal of Group „A‟cadres including BRES (Civil) Cadre was submitted by Directorate General of Border Roads in 2011. The same was examined by Border Roads Development Board in consultation with Ministry of Defence (Finance/Border Roads) and discussed many times at various levels but could not be finalised.

7. That a meeting of Border Roads Development Board (BRDB) was held on 4th February, 2013. The Board discussed the issues relating to „Cadre review of subordinates and Officers‟ and „Review of Manning Policy‟ along with other items. After discussion in the BRDB meeting it was decided to constitute a Committee to look into the issue of „Manpower needs of Border Roads Organisation (BRO) and the matter of manning ratio‟.

8. Accordingly, a Committee has been constituted under the Chairmanship of Joint Secretary (G), Ministry of Defence with other senior officers as Members. As the manpower needs of Border Roads Organisation (BRO) and the matter of manning ratio are interlinked with the cadre review, the Committee has been asked to consider the issue while making its recommendations. The Committee has held its meetings on 25.4.2013, 31.5.2013 and 06.6.2013 and further action will be taken on the basis of the recommendations of the Committee on „Manpower needs of Border Roads Organisation

(BRO) and the matter of manning ratio‟."

9. The matter has remained pending in this court to enable the respondents

to disclose the status of the Cadre Review. We have been informed by the

respondents that the draft proposal of Cadre Review is under consideration for

finalization in consultation with Ministry of Finance and Ministry of Defence

etc.

10. Upon considering the above disclosures which have been made by the

respondents as well as bearing in mind the fact that the respondents are finally

actively undertaking an exercise of Cadre Review of the BRES (Civil) Cadre,

the present matter can be disposed of with the direction to the respondents to

complete the exercise in a time bound manner. The respondents should bear

in mind that valuable rights relating to the service of the petitioners are

entailed and the exercise of Cadre Review being undertaken by the