Central Administrative Tribunal - Mumbai
Anant Dinkarrao Dahiphale vs M/O Personnel,Public Grievances And ... on 11 June, 2019
I OA N0. 522/2018
CENTRAL ADMINISTRATIVE TRIBUNAL,
MUMBAI BENCH , Mumm . A
O.A. No. 522/2018
.-3y*i'\
Qets.QflDesision =112 2 Jane, 2019.
CORAM: R. VIJAYKUMAR, MEMBER (A).
Ravinder Kaur, MMBER (J).
Anant Dinkarrao Dahiphale
Son of Dinkarrao Manaji Dahiphale,
Date of' Birth: 12.06.1961, Age: 57 years O2
months, working as: Additional Collector now
Chief Officer Slum Board MHADA Mumbai,
(Group A Post) in Mumbai Slum Improvement
Board, MHADA, Kalanagar, MHADA Building,
Bandra(East), Mumbai and residing at: Flat No.
A5, 2"-Floor, Krishna Complex, Subhash Road,
Behind Garware House, Vile~Parle(East),
Mumbai~ 400 O57, State of Maharashtra.
...Applicant.
(By.Advocate Shri R G Walia)
. Versus
l. The Union of India,
Through the Secretary,
Department of Personnel and Training,
North Block, New Delhi" llO O01.
2. The Chief Secretary,
Govt. of Maharashtra I
Mantralaya, Mumbai~ 400 O32.
3. The Addl. Chief Secretary,
General Administration Department,
(Services), Mantralaya, Mumbai~ 400 O32.
...Respondents.
(By'.Advocate Shri .A .M' Sethna & Shri V' S
Masurkar)
Reserved on : 10.04.2019
Pronounced on : "_ QL 20,5
'I I' F
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2 OA N0. 522/2018
ORDER
'tii i i (
This application. has been filed on
01 O8 2018 under Section 153 of the
Administrative Tribunals Act, 1985 seeking
the following reliefs:
"a) That this Hon'ble Tribunal be
pleased to quash and set aside the date of issue of notification GST 565(E) which stands at l5/6/2018 and have the same re~worded/restyled as a notification of .2017 an: the- latest thereby directing the holding of DPC or Review DPC for considering 22 available posts for appointment by _promotion to the IAS for the year 2017 itself.
e1D@% 1h
b) That this Hon'ble Tribunal be further pleased to direct the Respondents to consider the Applicant as one of the eligible persons for being" considered .for .appointment .by promotion to the IAS by virtue of his being at Sr. No. 20 in the list of probable candidates for inns purpose of DPR or Review DPC to be conducted as per Prayer 8(a).
c) That gni the event the Znmdicant is found fit by virtue of meeting the benchmark; the .State km; directed ix; appoint the Applicant by promotion to IE?
':1%>1':i the IAS for the vacancies year 2017 }ifl;: ; :
with full consequential benefits of Ti+1 Seniority, pay f1xati8on, arrears ct' i pay, salary etc.
d) Such other and further reliefs including" _payment of wages and difference in wages as also fixation of pay inxui his appointment by promotion to the IAS be granted along with l8% interest thereon;
e) Any other and fbrther orders as may be deemed appropriate by this Hon'ble Tribunal be granted."
ei%feidEf 1Y $57?
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3 OA No. 522/20.782. The applicant is a direct recruit Deputy Collector of time 1995 batch and will superannuate from the State Government, Civil Service at the age of 58 on 30.06.2019;
Under the IAS (Appointment by Promotion) Regulations, 1955, as amended following directions of the I--lon'ble Apex Court, by a clarification issued in Office Memorandum F..No.l40l5/30/20l5--AlS--I at. 20.03.2015, the upper age limit for consideration as on 13* January of time Select List gmnnr was modified as 56 years w.e.f. the Select List of 2015-.
Therefore, the applicant ceases to be eligible for Select List subsequent. to "the Select List of 2017. The applicant's central grievance and relief for which he agitates is that the impugned Gazette notification in GSR 565(E) dt. 15.06.2018 of the DoP&T, Government of India fixing the cadre strength for' Maharashtra. State "under* the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955 identifying Senior Thug? Posts (SDP) ans 225, Promotional Posts including for those ix) be appointed by / 4*
------- .... ..:» %Y E 111 11 11 111
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, 4 OA No. 522/2018 selection at 126 posts and a total Authorized 1 11 strength of 415 was held by respondents to be 1 applicable only for the Select List of 2019. i 1 11 Therefore, by virtue of the lower number of 1 1'1.1. 1. 1 1 1
vy vacancies, as declared in tuna cadre strength notified in GSB Bo. __ dt. 16.02.2015 of 196 ti 4 4& SDP, 109 promotional posts including __ Selection Cadre Posts anwi a total authorized qiele '1 strength cxf 361. As 51 result, time vacancy 1 determined for the year 2017 was '7' for promotion of State Civil Service Officers as 1 against vunmfii six officers venue promoted and one vacancy for a provisionally selected officer was carried forward to the Select List of 2018. The applicant was at Sl.No. 20 'E1. '.
1:
1| 1 in time list of officers kept iriijua zone of 1 11 consideration and. cni the tesis cxf the fl'7:'Z1?
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11| 111 1 11' 11 increase in such posts that were finally *2_t424@ notified for promotion category SCS Officers in 2018, the applicant has pleaded. to be included for promotions. _ _
3. The applicant contends that the cadre reviews in Maharashtra were not conducted 11 periodically as prescribed in the regulations 4 A
------"i i 4 554%
111|.1 1:1 1'| 1'l 1:1
- 5 OA N0. 522/2018 for" every 1fiiKE years cni guinguennial Ibasis i and after 1992 and 1997, the cadre review was notified on 10.04.2007 with a total ;:@'; _4"_zA%:"
authorized strength of 350 which included 106 vacancies for rummmtional category officers. ;:"z1': 1'>; %:A The next cadre review" was delayed. and. was notified.cn1 16.02.2015 with E1 cadre strength of 361 which constituted only an increase of 11 posts and 109 posts for promotional candidates. Following this, some State Civil f;1:A*vr_1:~"
Service <Officers filed (E1 No.201/2015 "which was decided on 01.09.2016 by this Bench directing" the applicants therein. to file ii representation within three months to 'the State Government. who "were also directed "to take inn the setter vniii the respondent No.1 as it considered fit keeping in light the prayers of the applicants in that OA and the exercise inns directed to kma completed within a period of six months. 1
4. The applicants also submit that in 1992, the cadre strength "was fixed as 366 which ;Us noted ix) have included IH5 adehoc posts in the State Deputation Reserve (SDR) Le :e
-----------------..§ ,,'___,.-,;;;;5,H..,_,,___ __<_';j-------------------------'"\\j<§'»"=-"-==="-"r-"~' "1 Q Q; ""'"§'§§§"~;,£' HQ __ _ _ 6 OA N0. 522/2018 and which included 180 SDP and further reserved 84 posts for promotion of SCS Officers as computed based on the Senior Duty Posts (SDP) auxi the Central Deputation Reserve (CDR). The applicant submits that in 1997, the Senior Duty Posts were raised to 190 inn: the authorized strength inns reduced to 351, shockingly.' The details of the reason have not been annexed with the OA. No review was done in 2002 and the next review was done in 2007 when, as we have noted previously, the total authorized strength was held at 350 posts and with 190 Senior Duty Posts but the promotional quota for State officers was raised to 106 by altering the computational Ibase ix: include run; only' SDP and CDR but also State Deputation Reserve (SDR) and Training Reserve (TR). Thereafter in 2015, the applicant submits that in notification, the authorized strength was raised by only ll posts to 361 with 196 SDP and 109 for' State Civil Service Officers.
The applicant further argues that the revisions 111 2007 emwi thereafter lunma made 4 .. . '> 7 OA No. 5.22/2018 tima cadre strengthen topmheavy auxi have not included various posts that had been proposed for inclusion in.1flma SDP of ijua IAS Cadre.
The applicant also snnufln: to make some comparisons vmifii Gujarat State iJ1 this connection where they are of the view that much higher strength Iuualbeen allowed for El smaller State. The applicant also refers to a. proposal that was formulated. in 2014 in which the authorized strength was proposed to be raised to 440 but which had not been accepted tgiiflua Respondent No,1. This issue luni been contested.kQ; certain applicants who do not include the present applicant before this Tribunal in OA No. 201/2015 and as mentioned above previously, directions had been given to the applicants and Respondent Nos.l & 2 to consider the matter and the result was the Notification dt. 15.06.2018 by which the authorized strength was raised to 415 and which included 225 SDP and 126 posts for' promotion. ifima applicant submits that this Tribunal ir1"Uma OA No.201/2015, decided on 01.09.2016 had directed the respondents to . ' gr .-I_'
-------- -----i: -es---<--ye i........-i . . . . s ¢ 8 OA No. 522/2018 review the notification of 2015 and this applied to respondent No.2 who was supposed to reformulate their proposals and to respondent No. 1 to reconsider the matter and complete the exercise within six months. The applicant submits that ii? this exercise had been completed within six months from September 2016 anui at. the latest, kg? June 2017, then these "vacancies would .have Ibeen available for filling" up in "the jyear .2017 itself for which the applicant was eligible for inclusion in the Select List of 2017 since he was less than 56 years old as on 01.01.2017. He also mentions that since there EMHNE eight vacancies it: 2017, and, as per rules, 24 persons who are in the zone of consideration, the applicant found a place in this list and if the notification had been made in proper time as directed by this Tribunal, the applicant would have gained his promotion in that year since the new vacancies would have arisen i11"the course of the year subsequent to the notification if it had actually been issued well before its ii " " " " " " " ' P» 'iiimn 9 OA No. 522/2018 actual issue date in June, 2018.
5. In his grounds, the applicant impugns the delay of respondents in issuing the notification No.GSR 565(E) dt. 15.06.2018 eke 441% when it should have been issued in early 2017 itself on the basis that he had a fundamental right to be considered for appointment by promotion and whatever action has been taken subsequently kg; the .respondents ire contrary to the mandate of this Tribunal in OA No.201/2015 decided (H1 01.09.2016. He submits that the respondents cannot take shelter' under" excuses for not carrying out their duty"auxi for acting iii accordance with their statutory duties ire this setter. The applicant also relies on an order" of this Tribunal in OA No.853/2010 decided on 25.08.2011 "which inns upheld. by time Hon'ble High Court of Bombay in the case of Officers of the lkmfitui Police Service auui referred to the IPS (Cadre Rules), 1954 which are similar to the IAS (Cadre Rules), 1954 at Rule 4(1) 1 1 and 4(2) which reads as under:
. :1
1|
10 OA N0. 522/2018
"4. Strength of Cadres~ 4(1) The strength emxi composition tn? each <af the cadres constituteml under" rule 3 shall be determined by regulations made by the Central Government in consultation with the State Governments in this behalf and until such regulations are made, shall be as in force immediately" before the commencement of these rules.
4(2) The Central Government shall, [ordinarily] at the interval of every [five] years, re--reexamine the strength and composition of each such cadre in consultation with the State Government or the State Governments concerned and may make such alterations therein as it deems fit:
Provided that nothing in this sub~rule shall be deemed to affect the _power of the Central Government to alter the strength and composition of any cadre at any other time:
Provided further that State Government concerned .may" add for a period not exceeding" two _year [and with the approval of the Central Government for a further period not exceeding three years,] to a State or Joint Cadre one or more posts carrying duties cm? responsibilities cu? a like nature to cadre posts."
6. In that OA, this Bench considered the ruling of the Hon'ble Apex Court in Union of India & .Anr. vs. Hemraj Singh Chauhan & Others 2010 (1) SCC (L&S) 1002 and interpreted the statutory provisions at paras iflI%=vei1'=i1%Ffle=1iefl':iEe 40, 41 and 42 of the judgment as under:
"40. This Court is not very much impressed with the aforesaid contention. The word 'ordinarily' must A Hr xH J] OA N0. 522/2018 be given its ordinary meaning. While construing the word the Court must not .be oblivious cu? the context ;hi 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"tx>.be construed in order to fulfill 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 vs. Roshan Kumar, Haji Bashir Ahmed and Others-- (1976) 1 SCC 671, at page 682 (para 35). It excludes something which is extraordinary or special [Eicher Tractors Limited, Haryana vs. Commissioner of Customs, Mumbai--
(200l) l SCC 315, at page 319 (para
6)]. The word Uordinarily" would convey the idea of something which is done 'normally' [Krishan Gopal vs. Shri Prakashchandra and others-- (1974) l SCC l28, at page 134 (para 12)] and 'generally' subject to special provision [Mohan Baitha and others vs. State of Bihar and another-- (2001) 4 SCC 350 at page 354].
42. Concurring with time aforesaid interpretative exercise, rue hold that the statutory duty which is cast on the State Government and the Central Government "on undertake tune cadre review" exercise every" five "years is ordinarily mandatory subject to exceptions which HEQF.b€ justified in the facts of' a given case. Surely, lethargy, in--action, ems absence <if a sense of responsibility cannot fall within category of just exceptions."
On this basis, considering the facts brought out during the arguments, this Bench held as follows:
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-1+ 12 O/1 N0. 522/2018 1+ "16.1n view of the above discussion of fact and law, we have no hesitation in holding that the tragic and unfortunate incidence cu? 26.11.2008 .has run nexus '1' 1+ and/or bearing on the delayed cadre 1 review ;u1 question, "which znnnihi have 1 been duly completed and notified well before 26.11.2008. The O.A., therefore, deserves to ins allowed with a similar direction to the respondents we txv consider time question <1f promotion of the applicants to lifiicmi the basis of redetermined strength cu? the cadre, treating the same to be in _ the year 2008, and, if on such a reconsideration, relief' would' .be available to sunriof the applicants for promotion to IPS on the basis of quota available to them in the cadre, the same may be given to them w.e.f. ':iF:1':i 01.01.2009 with .notional consequential benefits of pay fixation, seniority 'f:1%= etc."11
8. The applicant pleads that his case is entirely covered by the above orders of this Bench which was also upheld by the I~Ion'ble High Court of Bombay and by the Hon'ble Apex Court.
9. Respondent Nos.2 and 3 have replied 1F:' 1'; :1%:1 stating tfiunz following time directions 1J1'th€ ii?
OA No.201/2015, the applicant therein had 11¢ submitted ea representation (N1 25.10.2016 which. was forwarded ldy time respondent "No.2 (State of Maharashtra) to respondent No.1 (Government of India) on 25.01.2017 and they ii?
f'ii;
:1D>1' received.e1 reply cu11l9.05.20l7 advising them - 1 1 1 1 E »>,,_____ _, , ,u.\~e----------------------------- -------
J3 OA N0. 522/.2018 that the State Government should have examined the representation and sent their considered views if ting? fimnmi any merit in it. Accordingly, the State Government sent a proposal cni 08.08.2017 proposing ana increase from the previously notified authorized strength (IE 361 (16.02.2015) to E1 new requirement of 440 posts to be now considered for Jnotification. This "was ciiscussed 111 a meeting at New Delhi on 11.01.2018 and finally, a notification was issued on 15.06.2018 raising the authorized strength to 415 posts with 225 SDP and 126 for promotion "Do State Cadre officers. 'They have resisted the imputation that there was any intentional delay by respondents.
10. With regard to the delay in carrying out periodic cadre review" every" five years and which had been also raised before this Bench 1M1 the jprevious (E1 No.201/2015, they have stated that they had prepared proposals even by 2011 but because of a major fire on 21.06.2012 in their section at the Mantralaya, the connected records had been F =:*"'---1:"-1""""""""""""""""""" mi./r 1 1-"-:e:?:=e-1""'~zEs~;¢a'§ vé "iii """"""""""""""°;'*EzZ 14 OA N0. 522/2018 destroyed. and ea fresh. proposal. was finally prepared anni sent cni 27.01.2014 :fim: 239 SDP enui a cadre strength of 441% However, since the respondent No.1 directed that only an increase of 5% in each cycle of cadre review would be permitted, the proposal was revised anwi submitted (n1 13.08.2014 anmi resulted 111 the Notification dt. 16.02.2015 with a total authorized strength of 361 posts. They also state that following this notification of 15.06.2018, issued just three years after the previously notified cadre review in 2015, the number of posts to be filled up by promotion increased from 109 ix; 126 which included an increase <nf 14 posts :fixr promotion cxf State Civil Service Officers ifixm1 93 posts to ILW posts and the increased cadre strength "was available for prospective operation w.e.f.
01.01.2019.
11. The applicant has filed a rejoinder contending that the action taken by the respondent No.2 Ibased cn1 the: directions of this Bench in (fl1'No.201/2015 was run: proper because they did not formulate \/jg, ~~~~~~~~~~~~~~--1 ------------------------ \. r '"";i3'<;" 2-.
15 OA No. 522/2018recommendations following" the representation and. simply" forwarded. it ix) respondent iNo.1 :fl141% F=1'=iE who returned it and then after a long delay, the proposals were sent to respondent No . 1 . 1 The applicant argues that since the delay was 1+ wholly" Ibecause cmf the respondents, the Tribuna1's orders should ins followed ans was 1 done in.(fl1 No.583/2010 ch; 25.08.2011 where -1 time OA was allowed with giving retrospective application for the selection. The applicant 'EDP also reiterates time argument tfiun: cadre review should have been done every five years 'HE Afflfl but was not done by the respondents and 1 therefore, this denied officers such as him, their due promotions. He also refers to the significantly low enhancement of cadre 1 strength by 3% from 351 in 1997 to 350 in 2007 Emmi 361 i;1 2015 which ii; less than 3%.
He also refers and endorses the transparent monitoring system that this Tribunal had recommended 111 its orders pessed ill 2011 in CA No.853/2010.
12. Respondent No.1 has filed an affidavit in reply on 19.02.2019 disputing 1+ " a 1 1
-- ~~~~~~~ W;"~1>~v'e>\-~;;x;¢=@:~v """""""""""""""""""';"\I""}'''' -
-' 16 OA No. 522/2018 the applicant's allegation that the respondents have committed contempt of the orders cxf this Tmibunal. They lmnma stated that they have fully complied with the orders. Referring to time applicant's prayer to alter the date of notification from 15.06.2018 and to have it re--styled as a notification of 2017 for the purposes of preparing ea Select Idem; for time year 2017, they assert that this would be. an interference with the administrative jurisdiction of the respondents and would serve as ani adverse precedent for claims of similar untenable reliefs by various persons who have run legal rights .in &nnfi1 matters.
They refer to certain guidelines that are kept in mind for the cadre review as below:
"a) Rule 4(2) of the IAS (Cadre) Rules, 1954 provides that the cadre review would be carried out Ordinarily at the interval of five years meaning thereby that it is not necessary for the Governments to carry out the cadre review exactly on completion of five years. It may be before or after the five years.
b) 111 proviso to rule 4(2) of the 1AS(Cadre) Rules empowers the Central Government to alter' the strength and composition of any cadre at any other time.
F 1
------------------ s ==.""""">*> 1 .r'*¥> 17 OA No. 522/2018 cw The Cadre Review of inn; cadre is purely" an administrative .mechanism whereby the cadre strength is not only increased, ;n: may 1%; decreased also. This should not be linked with the kprovisions of _promotional avenues to the eligible officers.
ch The cadre reviews are carried out keeping in view the future administrative requirements of' any State/Cadre and they are definitely not carried cum: for providing pmomotional avenues to time eligible officers. Therefore, the cadre reviews can only be effected prospectively.
e) Cadre Review is not meant merely for determination of the vacancies."
13. They refer ix: the judgment cm? the Hon'ble Apex Court in Hemraj Singh Chauhan (supra) where the Hon'ble Apex Court agreed that Euflma 4(2) cou1d.ruM: have retrospective operation and would operate prospectively but in the particular case, the Court was satisfied. that flint the delayed. exercise =of statutory" function, the Government had not offered any pmssible explanation and therefore, the Court held that the directions given by the Hon'ble High Court were not unreasonable and accordingly, reiterated those directions jll exercise of iims powers under Article 142 of the Constitution subject to the rider that in normal cases, the .* 1 .......................................................... "X _i__________'_:_z¢m_":_\ $ ..,..._....._:,.:_.._..__._.3_€___?_....%...{1,_._._. K E Xi Q 18 OA N0. 522/2018 provision of Rule 4(2) of the Cadre Rules, cannot be construed retrospectively; They also referred to the decision in OA No.201/2015 which records at Para 31 as below:
"31. Hence, we direct the Applicants to file ea representation .regarding" their prayer in this OA within a month to R-2 (State; Government). 1?a2 shall. consider all the issues raised therein and resolve the matter whatever extent possible under State powers and authority. If R-2 considers that there is no merit in the representation, then R-2 shall dispose of the representation with a period three months after receipt of representation. If RW2 is of the view that there is merit in the representation, regarding tflnmnr prayer in this OA and that it is beyond the State Government to resolve or if it is held that the State cannot be held responsible for the impugned notification, then R-2 shall take up the matter with R-1 (DoPT) recommending reversal of the cadre review of 2015 or recommending fixing ea .higher cadre strength or any other recommendation as deemed fit, in the light of Applicants _prayer ;n1 this OA. 1111 shall take =a decisicml on time recommendation zof the State Government, suitably. The entire exercise, it is culminates in the reference to R-1, the same shall be completed in a period of 6 months."
14. Therefore, following the proposals of respondent No.2, 21 cadre review was notified on 15.06.2018 increasing SET 131 14.79% from 196 ix) 225 &Dd.1J1 accordance vein: the State F 1 s 1 1 1 1 " """"" ""'1""¥'~1'1-'1 """ """"
"1 (I 19 OA No. 522/2018 '1' Government's letter dt. 15.12.2017, which had 1D=?:i clarified that the increase would operate 1:=1-%:>:
prospectively. They state that the cadre 1 (1 strength for EHfl?"was increased twice ---- frmn 190 to 196 ir1 2015) and. within. three years fnmn 196 to 225 and therefore, there was no 1 ail:
'HT delay; Further, they state that the 1 preparation.<xf proposals snui finalization of cadre review is a time consuming process. In 1 1 regard to Cadre strength, they state that the Cadre Review Committee (CRC) takes into consideration, functional justification, ':': .i':IF.¢D:a:+a future administrative requirement, and :. %:. :1% financial implications, which are aimed at meeting the future administrative requirements cm? any State cm: cadre anui they 1% :':1E 1;
'1' are definitely not carried out for providing promotional avenues to eligible officers. 1 Each cadre is different from other cadres and further, cadre review is not merely for % determination of vacancies. They also state ;n1 this regand that the applicant was not 51 party in OA No.201/2015 and therefore, he has 1+ no locus standi to make any prayers in terms 1 .;:~.~.-;-; . ---------------~<----- .........1 ma K 1*» -- u>sssr1sss§1?111was1a 11 20 OA N0. 522/2018 1 cmf the directions contained 1J1 that OA. Ihi regard ix: the jprayer an? the applicant for altering time date cxf notification. from 15.06.2018 to 2017, they submit that no 1 1 prayer has been made for increasing the number cmf posts aumi therefore, ting; suggest 11' that the prayer is itself ambiguous.1 15. During arguments, learned counsel for 1
the applicant reiterated the various arguments contained iii pleadings and '1' emphasized the delay on the part of the 11' respondents in giving effect to the orders of this Bench 111 OA No.201/2015. He submitted that the respondents had never asked for additional time from "this_ 'Tribunal for implementation cm? its orders which were pronounced on 01.09.2016. Further, their own 11 1 letters concede that there ins delay in 1 processing the matter which eventually led to 1 the enhancement iJ1 strength ix) 415 ;n1 the notification of 2018. He argues that he had never asked for retrospective effect as claimed by the respondents but it was for the respondents to implement the orders in a ':':1Z1EF:WI?
1--------------- """"""
2] OA N0. 5.22/2018 11 timely manner as statutorily required and in keeping""with time legitinate: expectations of officers as also observed by the Hon'ble Apex Court in Hemraj Singh Chauhan (supra) at paras 37-40 as below:
"37. The Court must keep in mind the '1 11 Constitutional obligation of both the 1 appellants/Central Government as also the State Government. Both the Central Government and' the State Government are 1x>.act as model employers, which is consistent with their role in a Welfare State.
11'
38. It is an accepted legal position that the right cm? eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Articbe 16 of the Constitution. The guarantee of a fair' consideration ;na matters <of
-promotion runner Article .16 virtually flows from guarantee of equality under Article 14 of the Constitution.
39. In The Manager, Government Branch Press imwi Anru vs. LL11 Belliappa - (1979) 1 SCC 477, a three judge Bench of this Cknmfi: in relation txn service dispute, nmqr be .bi a different context, held that the essence of guarantee epitomized under Articles 14 and 16 is "fairness founded on reason"
(See para 24 page 486).
11' 11
40. It is, therefore, clear that legitimate expectations <of the respondents of .being considered for promotion has been defeated by" the acts of the government and if not of the Central Government, certainly the unreasonable in-action on the part of the Government of State of U.P. stood in the way of the respondents' chances of' promotion from being fairly \ 'Z:1 EF " "r"»"1"-"1 1 11 1 1 11 1 \<1\\>1 >11 22 OA N0. 522/2018 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 cu? this Court ;ha how" to fairly resolve this controversy."
16. Referring to his pleadings, he asserts that the notification of 1992 was due in 1987-88, that cxf 1997 "was chua in 1992, that of 2007 was due in 1997 and that of 2015 was due in 2002 and all of them were delayed.
In this connection, he refers to the decision of the Hon'ble Apex Court in State of ULP vs. Singhara Singh & Ors. [l96l.All LJ 617] in CA .No. 31 of 1962 decided on 16.08.1963 at para 8 which reads as below:
"8. The rule adopted in Taylor v. Taylor (1876) l ChD 426 is well recognised and is founded on sound _principle. Its result is that if <a statute has conferred a power to do an act anni has laid cfiwni the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the lurks is that if* this were rum: so, the statutory provision might as well not have been enacted. Z5 magistrate, therefore, cannot in the course of investigation record a confession except in the manner laid ckmmz.bi S.l64. The power to record the confession had obviously been given so that the confession might be proved by the record of it made in the manner laid down. If proof of the confession by other means was Q .
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23 OA N0. 522/.2018
permissible, the whole _provision of E
S.l64 including" the safeguards
contained in it for the protection of accused persons would be rendered nugatoryn The .section, therefore, .by conferring on magistrate the power to record statements cu? confessions, by necessary implication, prohibited a magistrate firm: giving cnxtl evidence of the statements or confessions made to him."
17. He, therefore, argues that the right % +4 of the eligible employees "Do kma considered amounts to a right under Article 16 of the if Constitution. IU1 this case, Tina review had $ i dutifully to be completed and he computes the if six months period from date of orders of this Tribunal, to April 2017 or at the latest May, 2017. i
18. The learned counsel for the iv respondent No.2(State Government) argued that -w i the .All India Services Regulations are 'ii;
approved. by" Parliamentn Cadre review" does if not imply only increase as understood by the applicants and could also be 4% increase/zero/decrease. Therefore, there can be no legitimate expectation or statutory 'FF rights toe expect only"an1 increase iii cadre 'FF strength and seek to enforce this in a Court i i i H} i 1 """"*v"":"""tum 1%'"K¥§¥F $3 Ei senreseeeseeeet" iseseeseeeeseeseeweeeeseseeseeseeeeees~ 24 OA N0. 522/2018 i 4% of law; 1ma:mala fide or negligence has been i alleged. against time State Government. The i delay ill 2012 arose because cdfai major fire ir1 the connected. section ill Mantralaya. and
-'~€+ hence, there was a delay in formulating T7 proposals and this was done in 2014 and subsequently chflgz notified i11 2015. On the % i¥ aspect of giving retrospective effect to the date of notification by virtue of the orders 'FF of the Tribunal, the request itself was not only contrary to service jurisprudence but was also plainly unconstitutional. The orders of time Tribunal. did run: prescribe la specific date for finalizing the consideration and there anus adequate reasons that lupus been furnished. for time manner' in i which the review was undertaken within 3 years of tins previous notification. and another notification with increased cadre strength issued in 2018.
i
19. While discussing the process of cadre review, he asserted that ii; "was not a mechanical process and another judgment cited by" the applicant would. have application in TT E 'F+ ii ,- __ K '''' 1' I 4-- <=;-
H .25 OA N0. 522/.2018 if the present instance. Tflma vacancies created 'H' by the Centre are spread over the country and not based on the demand by each State. The question cif antedating 51 notification weuld 'FF have impacts on the rights of various parties and such a claim cannot be made in service 'FF law whereas it might be feasible in a money transaction. Therefore, prospective application from date of notification can if alone be correctly applied. In regard to the 'FF 'FF eight vacancies that luni initially been notified for which 24 officers had been 5 E brought in the zone of consideration, he also informed that one of the officers had been granted pmomotion in.ea previous Select list by virtue of Court orders and therefore, the actual substantive vacancies on 01.01.2017 if were reduced.tx>'7 but applicant continued to remain in this list of 21 persons in the zone of consideration of vnmxfii five were selected and two cases were placed in sealed cover.
With regard to the determination of vacancies, lua stated 1flum; administrative exigencies are the criterion.
/2 5keel 1 """""""""""""""i"§"'?i"v. ; .w<u»x<;xw. mi <<> x ?F>¥'1'*%T i i; _ 26 OA No. 522/2018 'FF
20. The learned counsel for the respondent No.1 reiterated various i contentions made in.iiumu: reply including to the effect that they had scrupulously complied with the orders of this Tribunal and i that there was rm; inactbmi or lethargy that 'PP would jinfiima application (If tima decision iii 'FY' Hemraj Singh Chauhan(supra). He also contested time application <1f the ratio contained in the case of Amer Vijay Jadhav & Ors. vs. UoI & Ors. in GA NO. 853/2010 decided on 25.08.2011. He also argues that prayer 8(a) is quite contradictory to the decision in Hemraj Singh Chauhan(supra) of the Hon'ble Apex Court and the circumstances and facts are quite different in this case.
21. Similarly, the case of Keilash Vishnu Jhadav" & Ors. Vs. UoI & Ors. in OA .Nc.
201/2015 decided on 01.09.2016 had no direct bearing CH1 the present netter. While reiterating that against a quinquennial review, the cadre review after 2015 was conducted within three years in 2018, he emphasizes that iii six posts were available, 5 'II-
E!'
-------------- - , <> i K v"-~1 E i <\ ii as 27 OA No. 522/2018 i the filling up of all the six posts was an i administrative prerogative and not for the applicant to derive rights. He further if argues that considering that the cadre review § was conducted in just three years and within ++ the prescribed period of five years, no delay +r could.kma ascribed ti: the pmocess. He also if argued that the present applicant had no if locus standi to agitate the matters contained in CfliiNo. 201/2015 where lma"was not ea party and. that decision including" the six :months 'FF time limit applied only to those applicants and run; to time present applicant. He also 5 refers to Para 30 of the orders of the Tribunal ii1 OA PHL 201/2015 »nnis1 reads as under:
E 'Y%L.However, cni the issue cu? delay in :1 cadre review" leading to the impugned 5 notification it is noted that the cadre review due in 2012 coincided with the unfortunate fire incident in Mantralaya, leading to disastrous effects, such as, elimination cm? valuable, evidence abounding records, which would have show that State Government had started preparation in 2011 ahead of the cadre review.meeting. Therefore, we hold that the State Government cannot be held responsible for any delay. These were factors beyond their control and the fact was that the situation was 'extraordinary' not 'ordinary' and well F 1-
------------ 1- "v 8 $2" %'< \'§>i \ 5??28 OA No. 522/2013 E
i beyond the operation of the principles i underlying interpretation of the use ¢m* the vnmmi "ordinarily" relying cni Union of India Vs. Hemraj Singh Chauhan & Ors. reported in [2010] 4 SCC 290. Hence, no allegation of delay on the part of State T?
Government applies to the last cadre review. Previous cadre review not having been challenged or being too late if for challenge on grounds of alleged delay, do not require expressing our views as time validity of' the earlier cadre review notification has expired. Hence, vma are not {ma go into ea roving interpretation of whether earlier cadre review which "ordinarily" should' have been held at an interval of 5 years was held in that time span or delayed in the ++ light of the aforesaid judgment."
i "F
22. In regard ix: the applicants demand i tr and alleged legitimate expectation for a w cadre increase for which the State Government 'er had proposed encadering of certain posts into i the IAS cadre, he referred to the judgment of the Hon'ble .Apex court in Tamil. .Nadu % Administrative Service Officers Association & é Ors. Vs. UoI & Ors. [AIR 2000 SC 1898] 'in which the officers of the Tamilnadu and Haryana State Administrative Services had 5 sought directions to encadre all SDR, ex"
cadre anmi temporary? posts Ihithertt> occupied 'FF by members of the IAS for continuous periods exceeding three years in the IAS Cadre, for 'FF M 'FF r 'H' I "" ' meme 29 OA No. 522/2018 ' 1 the purpose of arriving at the vacancy of 33 1 1/3m'% for promotion categories. The Hon'ble Court had declined intervention in this regard. The learned cmnummfl. also relied on the orders of this Tribunal in Ernakulam -e Bench in A.K. Jamaludeen & Ors. Vs. UoI & Ors. in OA Nos. 642 & 662 of 2016 d"ecided on e
23.05.2017 and referred tie Paras 15, ZH3 and 20 on the nature of cadre review and its timeliness which is as under: wer E F15. The cedre review cu? any cadre is purely an administrative mechanism whereby"iime cadre strength ;hs not only increased but, it may be decreased also. The attempt cm? applicants tie link .it with the _provision of promotional avenues to the eligible officers is a very" limited enmnv point. Further .Rule 4(2) of the IPS '(Cadre) Rules, 1954 provides that the cadre review would be carried out 'ordinarily' at an interval of five years meaning thereby that, though time process .has tme commence gme if the five year period, it is not necessary? for time Governments fie carry out the cadre review exactly on e 1};
uiis completion of five years overlooking the consultativee_process .between. the .State and Central Government. It may be before or after five years. The word 'ordinarily' was inserted in the aforementioned regulations vide amendment dated l0.03.l995' to give flexibility to time executive ens far as the time limit within which a cadre review was to be done as it is a consultative process and bringing related departments on board to concur with the proposal. The claim of the $2 we xx wv £1 30 OA N0. 522/2018 petitioners ;fia'guided inf the motive ad' their personal benefits only and is ii;
11$ Iii against the rules; the respondents contend. ii "P l9. There is no doubt in the mind of the applicants that time respondent .had timely" commencemf the Jprocess of' cadre if review in February, 2014. The applicants arguments could not be that the i respondents should be denied an 5 opportunity to take a discussed and agreed decision and arrive at a consensus keeping the needs of the state i policing needs in .mind. Viewed in a ++ larger perspective, applicants neg? not have derived the actual benefits of the cadre review .but time police force of Kerala and the residents of the State had ultimately benefited. There has been no wilful delay on the part of' the 8 respondents. There has been a process of consultation and discussion, necessary 'FF in inn; decision making pmecess to resolve the grid lock between the 5 Central Government and State Government, i which .Ls covered tn' the term 'ordinarily' in time cadre review rules, and should be viewed as fairness founded on reason. There has also been intervention at the Ministerial level to put forth the views of the State 141?
Government. This and the series of correspondence produced by the 'PP applicants certainly does not point to ++ an attitude of lethargy or inaction. It affirms' the consultative }lDOC€dUf€ .and the attempt made to ensure that all concerned are given an opportunity to be i heard and _present their view _points. Hence, we note that there is good reason l to cover" the =delay" of .respondents, if any.
20. Rule 4(2) of the IPS (Cadre) Rules, l954 provides that the cadre review >':eF:1':1 would be carried out 'ordinarily' at an interval cfl?.frwa years meaning thereby that the process though commenced in the five year period, it is not necessary 1e F for the Government to carry out the E 11 r K "> """" " \ *4 ' *»~ < Ne.
31 0.4 No. 5.22/.2018cadre .review" exactly' on completion of five years, bypassing the consultative 1&1 process .between the Central and .State Government to put forth their view point and be heard for the same. Before l995, the word 'ordinarily' was not there in the aforementioned regulations. The Hon'ble .Supreme Court of .Tndia in the iv case of S. Ramanathan v. Union of India MANU/SC/0761/2000 : 2001 (2) SCC ll8 had held that ;Ui was incumbent cwl the part iq of the Government, in view of the provisions existing then to hold the review"<xf thei.strength emwi composition ++ of a particular cadre of IPS within the time frame given in the rules. Subsequently, vide amendment dated l0.03.l995, the word 'ordinarily' was inserted in the aforementioned regulations with the intent to give flexibility to the executive in the if consultative process of the exercise, as far as the time limit within which a cadre review was to be done. Here, the }:Q?;
exercise was commenced within 5_ year time frame but due to the necessary consultative process between respondents l more than 5 years time has elapsed."
23. They also referred to Para 23 of this 'er judgment on the issue of antedating which is 'W T?
-er as under:
l
23. Hence there are many in the queue who are benefited by the improved ' policingz The Tribunal would .also .not favour the ante--dating tn? the cmeation of posts of the cadre review to benefit the applicants, Such a immma would lead to a series of' litigation on similar grounds which may displace established promotions and seniority." '
24. The learned. counsel also reiterated i the objections of a cadre review as reflected l in Para 24 of these orders and that the i if Ii 5 ( "EX 2*; \> ::-.::: "i\ '§$"_{"*=\s'i'~i"§€i' '~>§'~;§%§>¥:F'?'§%§\;'$i§??"'}"{""."' W \a \
-i 32 OA N0. 5.22/.2018 orders also record that sfiiuma a cadre review ii exercise had commenced within the five year period prescribed, there was run wilful delay e or laches on the part of the respondents.
25. Learned counsel, therefore argued i that the major fire in Mantralaya in 2012 and 'Y' the absence <nf any lethargy on ijma part of the respondents and further the i interdepartmental consultative process involved in Government were justifiable ui grounds for delay. It is also necessary for the applicant ix) be "vigilant if lma was so -Z-in desirous cxf seeking such.ea promotion enui no -1-1%' evidence has been put forward in the present case.
26. Towards conclusion of arguments, iii-
em
-=1-i ?'-1 respondents were requested to give +» information on direct recruit IAS Officers 4% appointed through the UPSC to the Maharashtra 'er T' Cadre and they have furnished figures as i under:
Ii i "2007--5, 2008-7, 2009-7, 2010-8, 20ll--8, 2012-9, 2013-8, 2014-l0, 2015-8, 20l6--7, 201 7-6, 2018-6.
27. We have carefully considered the %T 1E;-1-1-1 1"
1!' 1-1-2% &1-1- :__,::E_.__".._.---
/ \ \\
,s___________;z___\______\:::":__:__:\ ...__\ .!_____y__.> /-.--\"- - v - - , / ~
i \
§"~ ' "'-
F: E i xi. '$*i€€5\§fi*?.¥W)%<zx§r,~\w2;ez::x,>:;a1sKs. .;iQEis3§$E§é1ii8EREY?i~i%§?§€i%¥='%';'i>>¥e'§§%?$§?@.
.:\_;1_§.__._~_.._ _;_-__:_._____.j-:___:._;'_;»_:?;_ _.:.-- .. ...~.-- \.... .- -- -...- .. . . .. .. . . . _ _ _ _ _
35' OA N0. 522/.2018 -
pleadings on record, the law on subject, the
statute enui rules applicable anmi taken into
consideration the arguments of respective
parties.
28. The relevant jprovisions of time IAS
Service Rules, 1954 for consideration in this
matter are as under:
"4. Strength of Cadrese 4(1) The
strength rnui composition cm? each <af the cadres constituted' under" rule 3 shall be determined by regulations made by the Central Government in consultation with the State Governments ir1 this behalf enni until such regulations are made, shall be as in force immediately" before the commencement of these rules.
4(2) The Central Government shall, [ordinarily] at the interval of every [five] years, re-examine the strength and composition of each such cadre in consultation with the State Government or the State Governments concerned and may make such alterations therein as it deems fit: -
Provided that nothing in this sub-rule shall be deemed to affect the _power of the Central Government to alter the strength and composition of_ any cadre at any"other time:
Provided further that State Government concerned .may" add for a period not exceeding two _year [and with the approval of the Central Government for a further period not exceeding three years,] to a State or Joint Cadre one or more posts carrying duties cm? responsibilities td'.a like nature to cadre posts."
29. 'The Government cxf India(R~l) has ii;
:1-ii Em
--------,-,;- __h______________ \, H---- ______ ,1 .__,,__ q 3 \}§ .___; messes ;>>;¢<>~:a<saw
-- \ ------------------- ---:---j=;-"; "'"'" "' x \>\x§1\t;*>$T~>%~<%§?@;*¥s.\§;§~§_§.$ii;*.iieisiimisfi,.._...??%E--_--,T3@?i"i*§*?i8**F'7ii.'_ 34 OA N0. 52.2/2018 issued various instructions from time to time to regulate the application of these rules as under Government of India 's Decisions under Rule 4:
l.l. The criterion for" inclusion of senior' duty" posts in the IAS cadre schedule is that the cadre should include all posts for which the State Government would require officers with wide administrative experienoe of the standard of the I.A.S. It should thus include:
(i) all superior administrative posts of and above rank of District Officers e.g. Collectors, Commissioners, Members {If Board <mf Revenue, Secretaries & Deputy Secretaries in Administrative Departments; and
(ii) a proportion of miscellaneous posts including those of Heads of Departments. Strict uniformity in this matter is difficult.
l.2 The Central Government reserves the right to take a final decision regarding inclusion of ii post ;M1 the cadre.
l.3 [ G.I., MHA letter No. 5/61/57-AIS (II), dated 22- ll-1957, nu. 27/28/64--ATS (III), dated 24-3-1966 and I4/39/65--AI5' (III) .]
2. Posts included in the Cadre acquire the character of permanency.
[o r., man letter nu. 6/25/64--AIS(I), dated l--6--
1964].
XXX Government of India Instructions under Rule 4:
l.l. The- Government: of' India .have clarified certain fundamentals regarding" the .management of' the .All India Services cadres, as follows:
'1.
vim ............... E § , §\> >.e,§,wisee.s>;/xaasiizweiiiimiiaeimzrémnwm:<--Te->-ex . F iv """ 1 """'i"""_"""""j?'.'I. ='\"§'§\<?>?.<?*'?>§T%">'?'.i7*'i'i'8'<**'*"¥~ @meeis§s it *5"es-*@>> 35 OA No. 522/2018 1.2. At the time of the constitution of the IAS/IPS in 1947, it was decided to include the following categories of posts in the IAS cadre:--
(a) All superior posts in the administrative departments of .and above the rank of District Officers, i.e., Collectors, Commissioners, Members, Board of Revenue, Secretaries, Deputy Secretaries, etc. _.
(b) is proportion <1f miscellaneous posts including those of Heads of Departments. In the IPS, corresponding ranks were substituted, _the principle remaining time same. .Provisicm: was .made in the rules for triennial(quinquennial) review of the cadre -strength to 'adjust it according" to the growing" and changing needs of each State. -
1.3. The senior posts as notified in the schedule of each State cadre were divided into three_ main categories, viz:e (a) Senior posts under the State Government; (b) ,Central Deputation Reserve; (c) Deputation Reserve. The other categories and reserves, such as leave and training" reserves and the junior posts are ancillary to the three main categories described above. . .
1.4. Posts that fulfill the qualifications described in 1.2 above should therefore, be enumerated as the senior" _posts under" the State Government. The intention also has always been that all posts in the State @w1nn1 are required cni a long term basis and which carry duties and responsibilities 4 similar to such senior cadre posts, should be included in the cadre. At the time of the triennial(quinquennial) review- a realistic estimate should lma.made of 1 /' R l' .._________.___-.-_.~.-=1.-. .--.--.<.=---=.---.--1--\-= € Y - - .- Y V// E>;5<'§E€<'<'?>'<*/'fff \ W334?
----------------
; . >.-e>>,>s,1u§ * W' Q Y? 2 $*,<"E§$.'
- §- ?{»*1'--$§¥?»<€?.__1'=T-----
.1§'fi....}§&3'§$'5<§§fin§= =1 "eras 36 O/1 No. 52.2/2018 the new"posts required during the next 4 to 6"_years on the basis of the previous rate of expansion of' the cadre and of the additional posts required ;Ui connection "with time Five Year Plans and the growing business of Government and 'tuna cadre strength should' be fixed after taking these needs into consideration.
XXX 1.1]. Once the cadre strength has been determined at the triennial(quinquennial) review, which can be made more frequent if required, the rate of annual recruitment must be adequate to fill up all the posts within two or three years. In some of the States the recruitment rate has been rather".hnv with time result that gaps continue in" the cadre for years and longer Select Lists are required to meet the cadre shortages. This has twoefold disadvantages; it affects the seniority of the direct recruits and the State Service officers develop hopes and expectations beyond" those provided for in the scheme of the All India services.
[G.I,. n H.A. n.o. letter nu. 2?/2s/64-Ais(rrr), dated 24~3-1966.] XXX
8. .Rule 4 of the Cadre Rules provides for a review of' the strength and composition of the cadre at the interval of every" three years. The State Governments are, _ therefore, requested to sponsor their triennial(quinquennial) review proposals after taking into consideration their requirements at least for 3 years to avoid frequent proposals for amendments to the cadre schedule. However, cases where changes in the cadre are considered unavoidable and cannot be delayed till the next triennial(quinquennial) pi ..... .. 1 _ % P is fin 37 OA No. 522/2018 review, in such circumstances proposals may'lne.made once iriea year i.e. in the month of January. The State Governments are therefore, requested to adhere to this pmocedure for proposing amendments to time cadre schedule.
[G.I. MHA letter No. 6/10/68-AIS(II), dated 27-2-1968].
9. Letter to the Chief Secretaries of all States cue fixation cu? norms .for conducting review of cadre strength and composition of the State cadres of 19> Indian Administrative Service.
xxx he P 9.3 Formulation of' norms would .help streamline this process over time. The 4;.-,-, Fifth Central -Pay Commission Report has recommended a 30% reduction in the authorized strength of the All India Services both at the Centre and at the 2'1-4;-A1_-
State. ifine Commission lune highlighted the demoralizing effect of creation of unnecessary posts both in the Centre and at the State and surrendering unnecessary posts anui has recommended selectivity in promotion and fast track promotions. A streamlined IAS Cadre is desirable and will help management of the cadre. The norms 1 which are adopted will be reviewed every five years. Fixing of norms of cadre strength will allow flexibility within the overall ceiling will help improve the situation. A for i pyramidical .structure waive minimum ratno between higher enni lower level -it _ is desirable for parity and balanced iLi cadre structure.
9.4 Zi copy <1f time norms/' guidelines for QUMS prepared in; this .Department was sent ix: the State Government vide letter of even number dated the 17th +4 July, 2003 for obtaining their views/comments by the llth August, hi 2003. This was followed by a number of 'l.' Q} i K '5W!' i F
-I effeiq 1 1 e re I-41$ i! 38 OA N0. 52.2/2018 i reminders.
'il_A'in;rt7i-' 9.5 Based on the responses received from 'the State Governments, it has been decided to adopt the following norms while conducting the review of cadre strength enni composition cu? the State cadres of Indian Administrative Service:
(i) The total cadre strength will not normally be allowed to increase in any state. The number of junior 1243*-2 4 posts (including" leave .reserve) should .be 16.5% of' the SDP. The lemel of recruitment should be pegged between 2.75-3.25% of the SDP every year.
(ii) The break--up of the cadre posts i-'d-Z}A-4f1 should be approximately as given in the following table:-
iSl.No. Level/Scale in SDP % of posts 71 . _____________ ___ . . ___________ __ Rs. 26,000/--(riXaa> _____..... ______________ ___ __._.... . ._________ ___ _ ______ .. . __________ ___ 2.0t% ____....... _______________ ___ ____._....
t __________________ __ E 2 ;ASTS 8 . O=3% ' Ztii 3 isms ;[email protected] 5 T4 §Selection Scale l25.o0% I ,5 El 'i |.
|;-----------
Senior Scale/JAG eefroe 3 3 3 3 3 3 3 3 it 333 7
(iii) The State Governments .may have the flexibility" of adjusting i the rnmmmu'=of Senior"enui Selection Scale posts subject to the condition that time total percentage cm? these posts will not exceed 60%.
(iv) The State Governments may also p
-Ti-T have time flexibility ix) create eno- cadre _posts subject to the following:--
;LJ The number cu? ex-cadre posts 4_4 _ at the Rs. 26,000(fixed) grade will not exceed the number of cadre posts.
2) The total number of persons on =;_ ex-cadre _posts and' Central :5 _ F i'| \ \ 1 5 i xi """§""*"' .;:--- a ex vs. §-"éa-s1&\31»*"'r;/<<¢z\<<\\\e§'?*17€"<Fe §2x:;;::\\1s</$ii§})'1 m1-1i 3%;-
e 'i 39 OA N0. 52.2/2018 Deputation shall not exceed the CDR +SDR for the State. (This has :=_1:_-I been superseded vide DOPT letter No.20011/l/2005-AIS-II dated 23.01.2008, which is given in the IAS (Pay) .Rules, 2007, under Government of India decision.) ill
3) While the State will need to define the ex-cadre posts at the 2;;'-2_:"z-;t'_i-';
time of' the cadre review, they may at their discretion change i time designations/posts rue no 15% of the designated posts.
9.6 The above norms/guidelines will be followed while considering the proposals cm? review cm? the strength and composition of State Cadre of Indian Administratiwe Services and i :3: i other cadre matters. The State Governments are requested that the ii M M H H cadre review proposals may be prepared ii ; 1_#% keeping in view the above norms/guidelines.
[s.r. nosr letter No.ll033/3/2002--AIS--II, 34% dated 27.01.2005]
30. Subsequent to the notification No. ll033/7//97~AIS(II)-A dt. 10.03.1995, all the 5.
i previous orders which nentioned re period of 11\| ll TI three years or triennial period will need to be construed ans referring ix) five year cm:
quinquennial periods and they have been shown in brackets above.
i
31. Under the TAS(Appointment by Promotion) Regulations, 1955, the relevant provisions of Rule 5 are as below:
f i i§| 33' "' E 40 OA N0. 522/2018
5. Preparation of a list of suitable officers:-
5(1) Each Committee shall ordinarily meet every year and prepare a list of such members of' time State Civil Service as are held by them to be suitable for promotion to the Service. The number of members of the State Civil Service tx>.be included ;n1 the list shall lne determined tnr 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 date and venue of' the .meeting" of the Committee to make the selection shall be determined by the Commission:
Provided that en: meeting cm? the Committee shall lma heLd, and rue list for the year in question shall be prepared when,
(a) there are no substantive vacancies as on the first day of January of the year in the posts available for the members of the State Civil Service under rule 9 of the recruitment rules; or
(b) time Central Government: in consultation with the State Government decides that inn recruitment shall he made during the year to the substantive vacancies as on the first day" of" January" of the _year in the posts available for the members of the State Civil Service under rule 9 of the recruitment rules:
Provided further that where no meeting of the Committee could be held during <a ymer" for inn? 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;
'1 ?"*£'E'"*. '"'¥'§"'i'""T'>'<"-?' e we so 4e*<e;e:e'ne2e *.\\<: ea is i e r"<< 41 OA N0. 522/2018 XXX Explanation- In the case of joint cadres, a separate select list shall be prepared in respect of each State Civil Service; .
5(2) The Committee shall consider for inclusion to the said list, the cases of members of the State Civil Services in time order cd'.a seniority";Ue that service of a number which is equal to three times the number referred in sub-regulation (1):
Provided that such restriction shall not apply in respect of a State where the total number of eligible officers is less than three times the maximum permissible size of the Select List and in such a case the Committee shall consider all the eligible officers:
Provided further that in computing the number for inclusion in the field of consideration, the number of officers referred to ;u1 sub- regulation (3) shall be excluded:
Provided also that the Committee shall not consider the case of a member of the State Civil Service unless, on the first day of January of the year for which the Select List is prepared he is substantive in the State Civil Service and has completed not less than eight years of continuous service (whether officiating or substantive) in the _post cu? Deputy" Collector rm: in any other" _post cm? posts declared equivalent thereto by" the State Government.
Provided also that";he respect of any released Emergency Commissioned or Short Service Commissioned Officers appointed to the State Civil Service, eight years cm? continuous service as required under the preceding proviso shall be counted from the deemed date of their appointment"im> that service, subject to the condition that such officers shall be eligible for .. /*;__\€3_§<<§*: ewe <ee<[email protected] "es ». e e T _;a_ginrareeaseesieesseesee"esteem?
42 O/1 N0. 522/2018 consideration if timer have completed not less than four years of' actual continuous service, on the first day of the Jenuary of the year for which time select list :hs prepared, .be the _post cm? Deputy" Collector ant in any other' _post an? posts declared equivalent thereto by" the State Government.
Explanation:-- The powers of the State Government under the third proviso to this subregulation shall be exercised in relation to the members of the Statme Civil. Service tlf a constituent State, by the Government of that State.
XXX 5(3) The Committee shall not consider the cases of the members of the State Civil Service vnne have attained the age of 54 years on the first day of January of the year for which the Select List is prepared:
Provided that a member of the State Civil Service whose name appears .be the Select List [prepared for the earlier year] before the date of the meeting cu? the Committee-enxi who has not been appointed to the Service only because he was included [provisionally in that Select List] shall be considered for inclusion in the fresh list to be prepared by the Committee, even if he has in the meanwhile attained the age of fifty four years:
Provided further that a member of the .State (Hedi. Service inn: has attained time age tn? fifty--four years on the first day of January of the year for which the select list is prepared shall be considered by the Committee, if he was eligible for consideration on the first day of January of the year or of any of the years immediately pmeceding time year in which such meeting is held but could not be considered as no meeting of the Committee was held during such >5 " """""""""""""--43 OA No. 522/2018
preceding year or years under item (b) of the proviso to sub-regulation (1)."
32. From the above excerpts and drawing on. certairi arguments =of time respondents, it is quite apparent that the cadre review exercise concerns itself with an advanced projection. of enanpower for the future five years. There is no compulsion on the Central Government to accept the views <1f re State Government for encadering certain posts merely because regular IAS Officers have been appointed in those posts and for a considerable jperiod cnf time. Further, "the instructions issued by the Government of India tie supplement time statutory provisions for the performance of cadre review and which have been extracted above, refer to the recommendations of the Vth Pay Commission for a 30% reduction in the authorized strength of the: All India. Services Iboth. at time Central and in the States and its emphasis on the demoralizing effect of creation of unnecessary posts. lemme 9.2 extracted above from time instructions contained ill the Cadre t H 'Q --------- M -- "'-'§__ -""7" w€$'=EW ._ . .. _--,--,qr-1.-7:-F7-q:%:n=-v-- :.i .----_'-_--_--¢_-_--_- -
T -f-' .=it-'.et??.¥>-e=~?eeve?-miteeie.-.?tee?-ee€€s?>%€e-set-étveee%%<_?§§§eee$v§e-en§e5e3%?xesssgrzrrgai gesesaeege. § - - - - - - --Z _ __ _ __ __ __ _ _ 44 OA No. 5220018 Rules show that such concerns have arisen because of time change in time age profile of IAS Officers and bulge in the cadre structure for officers between the ages of 45~6O years.
Notably, all ijma promoted EH23 Officers fall ;n1 this categoryu These instructions issued on 27 .Ol.2005 also suggest a breakup of the J-
cadre posts between different levels of seniority and peg the level of recruitment at 2.75~3.25% of SDP every year. By doing this, there is also an immediate impact on the posts available for the promotion and selection categories which will affect State Civil Service Officers. This is clearly also the basis for the compulsion made by the Central Government ix) restrict increases and to keep the maximum increase at not above 5% between cadre reviews that are held every five years. We note that the number of direct recruits allotted to Maharashtra Cadre had risen to l0 in 20l4 from five in 2007 and has now come down subsequently to six by 2018 according to the information provided by the respondents. This should have kmmi_ an ®./.
..... ...._.-= .... -\ \» * * * * ' - M ~ ' ~ * ~ * - - ~ - > » < > - . - - 2 » --2 -..- _________________________ __ 1?
X Y *"" '* * _T""" '\7"'>* 45 OA N0. 522/2018 automatic impact on the promotional category.
However, we see that there has been an increase firmi 84 posts jil 1992 ix: 109 posts by 2015 although the authorized strength actually reduced from 366 to 351 probably due to deletion of 15 ad---hoc SDR posts and then to 350 in 2007 and rose to 361 in 2015. The rise in the promotion category posts has occurred because the basis for computation was altered by including State Deputation Reserve and Training Reserve for computing 33 1/3H1 percent guotai The grievances of the State Civil Services Officers have to be judged ii1 this jperspective anxi the: alleged grievances of time applicani; also Ihas ix; be seen in the same perspective.
33. Another inference that we need to draw from the Cadre Rules and orders of the Respondent No.1 is that the increase or decrease in posts are based on the anticipated changes over txma next period of five years until review is nmuk21of the cadre strength and ii; should 'ordinarily' kxa done after five years. Therefore, after the \gj§{ i \_-_~_;~;--;
--------~-W;-- - "'3 gr ---------3 as es. 5;; ssnz.-------
46 OA N0. 522/.2018 at authorized strength and the respective \ promotions are determined ii1ee cadre review, it cannot be said that all the posts so ti firei authorized and subedivided into different _B categories have txelbe filled.tn> promptly in iitt 1;
t the next selectrmn of that year or the next or during time next recruitment. .As pointed out by the Ernakulazn Bench of this Tribunal 21LiAtzte ttni it} it in Jamaludeen(supra), there is a need to plan t t t recruitment in such a way as to avoid future t promotional blocks while preventing gaps from t I ttl being filled up and to structure the cadre so 1;"
it H i! ii as to harmonise functional needs with i1.' tI legitimate career expectations of its members and. therefore, txe enhance time effectiveness t of the service(para 24). fam 5
34. ifixe other aspect wdmxii is specified in the IAS(Appointment. by Promotion) Regulations 1955 em; Para .5 vdmxi1 has jbeen t extracted above, shows that the number of t' members to be included. in the Select List shall Inn: exceed time number smf substantive "i4Q--
vacancies as on the 1" day of the January of the year in which the meeting is held in the 1 %e;Idle 2 l i t ...... ... .. - - -» - ~ - - -» - - ------ 1 >> §*'§'<~§ e e --'re e*<eee<ae:~ssssa semi ew E *|
47 Cb4hm.52&Q0l8 posts available for them under Rule 9 of the 2:4 441 Recruitment Rules. The judgment of the Hon'ble Apex Court in Tamil .Nadu m1'ei4'tfi;__e Administrative Service Officers Association & gm', 5;;
Ors.(supra) considers this aspect en; para 29
2:A1454'
as below: ifle
"29. {firms leaves tn; now ix: consider t the challenge made to the constitutional. amendments teffected ;bt Regulation 5(1) of the Appointment by Promotion Regulations. The petitioners ii iii;A"
in this regard contend that under the old provision, the Selection Committee was required to celculate' the anticipated substantive vacancies for preparation of select list which is *_;A'ix 4 Qi now .being changed to vacancies not t exceeding the substantive vacancies as t on the first day of January of the year* in which the .meeting" is held.
-They contend that by this change in procedure large number of vacancies which should have been available for selection of promotees will be left t» out. They state that tinmxe is always considered delay in completing the process of promotion by selection and this delay will be further extended by virtue of' the amendments and consequently the promotion of the petitioners will get delayed and some t of them may even loose the chance of t t t| getting selected to the IAS. They say t| ti that the unamended provisions were in t existence for decades and there was no need for effecting this amendment." t tt
35. In consequence of these views of the E44:
1:;
4'Tit4'7i%Q Hon'ble Apex Court, it is quite apparent that tit i 1. 4» the substantive vacancies to be determined on "4'lAj+rile7' . T, e1:JlLv=;
I at
1 »e,-------------------------wmwwmw t-emmmmmmmmmmwwimmmmmmmmmmmmmmmmm
---
48 OA N0. 522/.2018
the lfit Day of tine year is run; based cx1 the
anticipated substantive vacancies which might even include newly created vacancies and uncertainties iJ1 grant cxf extension' inf service ix; retiring ]]u3 Officers. .As noted by the 'Hon'ble Apex Court, vacancies not filled up in one year, will automatically get carried over to the next year if they become actual vacancies by then. Therefore, in terms of the need for creation of posts as part of a planning exercise and rthe determinatrmn of substantive vacancies as cul the ls': January of the Select List year, no potential candidate for the Select List of a particular year can raise ea gflrua that the determination of number of vacancies has affected his legitimate expectations _ or chances of promotion unless he can allege mala fides iJ1 this regard. ihz the present case, no mala fides have been alleged of this nature and the plain request of the applicant is that if the orders on authorized strength had been passed in May/June 2017, instead of June 2018, the State Government would. have \ I 'I .4"
I 1;; a =.':'=vsa=.a<;"~;<~;<='»n xi \ a .. ';r-as--************ L.1
-_- 2-_ 1 49 OA N0. 5.22/2018 been able to anticipate substantive vacancies on 1" January of 2017. His plea is directly contrary to the above observations of the Hon'ble .Apex Court. The contradiction and absurdity of these claims is, therefore, self~evident.
36. The applicant has relied on the orders of the Hon'ble Apex Court in Hemraj Singh Chauhan(supra) which was adopted by this Tribunal in respect of Indian Police Service {Officers jx1 OA 1%). 853/2010 cxi the basis ifiufi; the delay jll cadre review had rm:
nexus 'with iflua tragic: events cxf 26.11.2008 and therefore, the applicants had to be given benefits from 01.01.2009 as prayed. The applicants have also relied on the directions contained 111 the orders (Hf this Tribunal in ---a OA No. 201/2015 filed by State Civil Service Officers enui which did. run: include the present applicant. The principal argument of _-
the applicant is that these orders were iL- -;@ passed on 01.09.2016 and after service on respondents and after those applicants filed a representation on 25.10.2016, the State T:-m
--- -_T;1
' I
J I
.......................................... 1 . is
I
50 OA No. 522/2018
rerflfi-
Government chri not make angr examination and
sent ii: to time DoP&T' for iixs advice. This
i
resulted..in ai reply' addressed. to time State IIi
%iI
I
Government cni 19.05.2017 and Ifiua State
Government sent a proposal on 08.08.2017
- -;_r
reiterating one (Hf its earlier proposals for
I
raising the authorized strength to 440 posts. 5
The meeting to finalise this matter took
* .-
place thereafter {H1 03.11.2017 anui the i
Government of India(R"1) then notified the
increased strength cm? 415 posts vmifl1 126 in II
I
I
I
I
the promotional category only CH1 15.06.2018.
I
II
According to the applicant, if this has been
II
I§I
done within. the period of six znonths
prescribed by this Bench in those orders, he
W:
may' have received. the benefit and Ihe I
considers "that time respondents; are squarely
responsible for the delay. However, the
II
il
_
Cadre strength. Regulations jplace Tina entire 4
I
statutory responsibility anui function cni the
II
I
Central Government. The State Government had
i
I
earlier received instructions -from the
I
|IiII
Central Government not to propose any
increase in cadre strength by more than 5%
i
'I
_,r I
I
-If I
- - - -- 4 -------- ---
I
5] OA No. 522/2018
between two cadre reviews. As mentioned
I
earlier and contained in the instructions I
communicated Iby time Central. Government, the I
I
Pay Commission had noticed certain I
I
I
abnormalities in the cadre structure and II
I
I
ageing character of Iflma cadre structure and
luni made specific recommendations. From the
applicant's perspective, it might appear that I I
4
Iil
I
once the Tribunal had passed orders, 'the I
I
I
I
I
State Government had to mechanically transfer its earlier proposals to the Central I I Government for jixs consideration. However, I since it did not have the discretion to I I determine the strength in terms of the statute, it cannot be said. that the State II Government Inns wrong ixi requesting I'the I Central Government to give instructions on how tr: proceed iJ1 this Inatter. Further, II this Bench had itself granted three months to the State Government to consider the nature Ii»-; ET-' of the request and its acceptability and even I I II I 'I left it the option of rejecting the demand of I I I this set (Hf interest. groups :Ui the State's service. Having persuaded itself of the I I 1 I I I I 1 I \-..___.-¢_|
---- ----- v I. I E I 1 52 OA N0. 522/2018 II existence of snxma genuine grievance ill the matter, preliminary consultation with the Competent Authority(R~1) became a pre-
requisite and this was done . Even if this l144;ctie?! process cxnflxi have kumni hastened, ii; cannot be presumed that the applicant would automatically benefit. In any case, as pointed cnu; by Ifina respondents, fins present 1. e;.Ei_:.e4q.;5 applicant "was run; a. party ll} that (Hi No. I I
-I ' I 201/2015 and cannot claim rights or I I I I enforcement privileges based on those orders.
It is true that respondents should have sought extension cxf time if tfimgr had anticipated delay but there was" equally a duty on the applicants in that OA to agitate i;:;:; mQ for legal remedies. As argued by 54*iiI;
vi respondents, the inter Governmental consultative process takes tjmuaemmj the time periods found in this particular case are not 14 +;Zg unreasonable considering that the Union Government has to deal -with several State I :a:;.q Governments and an increase in authorized II II III II strength inn: one State Inns implications and :4?
ir ramifications lU1 terms of time other' States fli:;i:c; 4i III II Ii:
. . . . . . . .... _\ _ ____,\,__ ____ I/--*----------------'"
-"'2'; _}\<\ *§:'_"€~"-'"'§----"--""-'=5 'Q' 'I 3 II,I :,;:i<mh,_]~ III I 53 OA N0. 522/2018 who vunflxi doubtless refer Ix) the actions of the Central Government in regard to Maharashtra as much as the ' applicants themselves have argued. their' case 'with I I 'reference to the cadre strength of other States including that cmf Gujarat. It is {ass I also relevant in this context to note the discussion cxf this Tribunal in. (Ne No;
201/2015 cue the aspect of time delay imputed to the respondents for the cadre review which §=:A4;t't .4;t?.Ais41 was notified in 2015. Tflue orders at Para 30 are lune explanatory iii terms cm? any alleged Iz r ie delay upto and are reproduced below:
"30..However, on the issue of delay in cadre review leading to the impugned notification it is noted that the cadre review' due in .2012 coincided with the unfortunate fire incident in .Mantralaya, leading to ' disastrous effects, such as, elimination of valuable, evidence abounding records, which would have show that State Government had started preparation in 2011 ahead of 1:;.+:;_ the cadre review meeting. Therefore, we hold that the State Government cannot be held responsible for any delay. These were factors beyond their control and time fact was that the situation was 'extraordinary' not i1I'7Z' 2'_ilI} ' ordinary' and well beyond the I operation of the principles I underlying interpretation cu? the use . of time word "ordinarily" relying on Union of India Vs. Hemraj Singh Chauhan e;IQrs. reported gme [2010] 4 £521 Zvztrv iztjrz I I I
----
E I I 54 OA N0. 522/2018 Ii SCC .290. Hence, Inn allegation "of delay on the part of State Government applies to the last cadre review. Previous cadre review not having been Q4;
challenged or being too late for challenge cwi grounds ed' alleged 1:44 delay, do not require expressing our vii views as the validity of the earlier cadre review' notification has I expiremi Hence, we are .not to Igo intc> a .roving' interpretation of whether earlier cadre review which "ordinarily" should have been held at an interval cfi'.5 years Imus held in that time span or delayed in the light of the aforesaid judgment."
37. As we have discussed before, even ti4_l --
this increase iii authorized strength ill June 'vi 2018 can only apply over the future period II *3 I and in respect of the Select year of 2017 as I with all Select years, a determination. of substantive vacancies is not based on the authorized. strength. Ibut is aux entirely different kind of an exercise which the applicant and his cohort appear to believe is a mechanical process for simply converting all the available vacancies into available :;i flg;.4 posts for filling Inn iJ1 the course of 'she 'al-e_ -l--e year and by perhaps not taking account of the amendment made in the previous provisions for determining substantive discussed earlier and mentioned in the orders vacancies as I F if I I > I'" 1 """"
_ ~ '-'-'-'-'-r-=-'~--:-'-:-I =====-er=-e-.,_,=.>~ ~ we as ._-._._.-er-=sg;g;z§eee§rz4;s'<<<;e$5n:-v;=~»'-.==w1$1§m§e;@@ *- '- -! 5' I ___ _ -=-e=: e»~e1::mm..... ~- - -- - -
_._....._.--- - - I-'11-'-'I_'I'P ______ __ __ ;.__ __ _ ______11j7_-_'-._-.;::.:_:;;.;-_-.;;_=:|-:_;:;:=-_ -
I - .-
-§I *<=I~=.-:=-»:.-.-
-_ -
- -!:'IE
w 55 OA N0. 522/2018
of the Ernakulam Bench.
38. In view of the above discussion,
timnme are clearly'rue merits in time clabn of
i
the applicant and accordingly, the OA is
dismissed without any order as to costs.
. IRavinder (T/' I"
.Mmber (J7 I .MembeE (A)
II'-
'I \
um» '- . .-W
, .,_
we
Ram.
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_h" _" ""'-I- .-.-.
_I---I_"Ii"'*\" '\--n .IlF . ' ":¥z}!§-I<'*:I§lI\I e">"'<e'€I.If=EI.§-e I I I if in .
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