Central Administrative Tribunal - Delhi
Kripa Shanker Singh vs Union Of India Through on 26 September, 2014
Central Administrative Tribunal
Principal Bench
OA No. 833/2011
Order Reserved on: 16.05.2014
Order Pronounced on:26.09.2014
Honble Mr. Justice Syed Rafat Alam, Chairman
Honble Dr. B.K. Sinha, Member (A)
1. Kripa Shanker Singh,
Aged about 54 years,
S/o Shri Sheo Sakal Singh,
Presently working as Additional Superintendent of
Police, CB CID Head Quarter, Lucknow,
R/o 3/71, Vinay Khand, Gomti Nagar,
Lucknow
2. Shri Krishna,
Aged about 55 years,
S/o Late Sri M.C. Srivastava
Presently working as
Additional Superintendent of Police,
Rural Agra,
R/o 95-HIG, ADA Colony,
Mumfordganj, Allahabad -Applicants
(By Advocates: Shri D.K. Singh, Ms. Archita & Shri Pradeep Shukla)
V E R S U S
1. Union of India through
Secretary (Home),
Ministry of Home Affairs,
Government of India,
North Block, New Delhi
2. Secretary,
Government of India,
Ministry of Personnel, Public Grievance
And Pension (Department of Personnel
& Training), North Block, New Delhi
3. Union Public Service Commission through
Its Chairman, Dholpur House,
Shahjahan Road, New Delhi
4. Chief Secretary,
Uttar Pradesh Government, Lucknow
5. Principal Secretary (Home),
Uttar Pradesh Government, Lucknow
6. Director General of Police,
Uttar Pradesh, Lucknow -Respondents
(By Advocates: Sh. Rajeev Kumar, Sh. Upendra Nath Misra,
and Sh. B.Banerjee)
O R D E R
Dr. B.K. Sinha, Member (A) The instant Original Application filed by the applicants under Section 19 of the Administrative Tribunals Act, 1985 assails the date of applicability of the notification dated 30.3.2010 (Annexure A-1) on the ground that the entire process of cadre review under the IPS (Cadre) Rules, 1954 was to have been completed before 31.12.2009 and as such, the date of notification is liable to be treated effective from the year 2009.
2. The applicants have prayed for the following reliefs by means of this OA:-
(i) declare the date of application of the impugned notification dated 30.03.2010 as ultra-vires to Rule-4 of IPS (Cadre) Rules, 1954.
(ii) direct the respondents to relate the additional vacancies notified on 30.03.2010 under Rule 4 of IPS (Cadre) Rules, 1954 to the year 2009 and treat the same existing as on 01.01.2010 for the purposes of select list 2010. The Honble Tribunal may further be pleased to direct the respondents to consider all the eligible candidates including the applicants attaining the maximum age of 54 years during the year 2009 for the purposes of selection to IPS UP Cadre against the resultant vacancies as on 01.01.2010.
(iii) pass any such order(s) or direction(s) this Honble Tribunal deem fit and proper in the facts and circumstances of the present case.
3. The facts of the case, in brief, are that the applicants are substantive members of UP Police Service whose names find place at SI. Nos.111 and 86 respectively, in the gradation list. The applicants were eligible to be considered for promotion to IPS except for the reason that the applicant no. 1 has attained the age of 54 years on 1.5.2010 and applicant no. 2 on 28.07.2009.
4. Prior to filing of this OA, two Original Applications bearing nos. 2623/2009 and 3430/2009 had been instituted by the UP Provisional Police Service Association. The first OA was disposed of vide order dated 15.09.2000 and the subsequent OA disposed of vide order dated 09.12.2009 directing the respondents-Union Ministry of Home Affairs, the Department of Personnel & Training, Joint Secretary, MHA and Director (Police), MHA to complete the cadre review of IPS cadre of UP well before 31.12.2009 but in any case not later than the aforesaid time limit. Respondent no.1 in that OA filed misc. application for extension of time, which was rejected vide order dated 8.1.2010. When the aforesaid order was not complied with, a Criminal Misc. Case was filed, which was registered as Contempt Petition No. 337/2010. Respondents, in the meantime, filed a Writ Petition before the Honble High Court, which was disposed of vide order dated 12.07.2010 directing the Tribunal to decide the apportioned ratio of blame amongst the Union of India and State of Uttar Pradesh.
5. The applicants submit that promotion of State Police Service Officers to IPS is regulated under Indian Police Service (Appointment by Promotion) Regulations, 1955 (hereinafter referred to as Regulations 1955). Regulation 5(1) of Regulations 1955 provides that the State Cadre Committee as constituted under Regulation 3 of these Regulations, should ordinarily meet once a year and prepare a list of members of State Police Service suitable for promotion to the IPS in consultation with the State Government not exceeding the number of substantive vacancies available on the 1st day of January of the year of the meeting. Union Public Service Commission has also issued a detailed circular in this regard. Officers, who have attained the age of 54 years on the 1st day of January of that year, are not to be considered to be included in the select list. However, the issue came up for consideration in the matter of Praveen Kumar Vs. Union Public Service Commission [WP(C) No. 15798/2009] wherein the Honble Punjab and Haryana High Court, vide its order dated 1.2.2010, has held as under:-
We find substantive support to the aforesaid submission in un-numbered proviso to Regulation 5(]). According to the aforesaid proviso if no meeting of the Committee could be held during a year then whenever the Committee meets again, the Select List has to be prepared separately for each year during which the Committee could not meet as on December 31st of each year. The aforesaid proviso is consistent with the definition of expression 'year' in Regulation 2(1)(1). Therefore the vacancies for the year 2006, i.e. from 01.01.2006 to 31.2.2006 have to be determined as on December 31st of that year. The Select List, which has been erroneously styled as 'Select List of 2001', in fact, is the Select List for the year 2006. Therefore, the age of the petitioner has to be determined as on 01.01.2006. Accordingly, he would be eligible."
Accordingly, a circular dated 25.8.2010 was issued, which inter alia, provided that the select list will be coinciding with the year of vacancy. Under the provisions of Indian Police Service (Cadre) Rules, 1954, the strength of the cadre is to be ordinarily reviewed once in every three years under Rule 4 of the IPS (Cadre) Rules, 1954. However, the maximum period within which a review is to take place, can be extended to five years and not more. The previous cadre review had been made on 31.12.2004 and the next was to be finalized on or before 31.12.2009.
6. The applicants contend that admittedly, there has been a delay in issuance of notification for cadre review for no fault on the part of the applicants. It is an internal business of the department, which takes into account the existence of ex cadre posts, which are to be classified equivalent to the cadre post. The zone of consideration is equal to three times the size of the select list to be drawn upon under Regulation 5(1) of Rules, 1954.
7. The applicants submit that notification dated 31.12.2009 leads to principally three consequences:-
(i) Officer attaining the age of 54 years in 2009 will not stand ousted from the zone of consideration.
(ii) The size of consideration will be equal to three times the size of the select list having become available in the year 2009 and notified on 31.12.2009.
(iii) Vacancies notified on 31.12.2009 would fall for consideration to be filled up on 1.1.2010.
8. The applicants submit that the meeting of the Select Committee was to be held in the year 2010 as per the vacancies available on 1.1.2010 and 1.1.2011 as per the gradation list. However, unless the impugned notification was related to 31.12.2009, it is bound to have the consequence of leaving out the persons, who were eligible for being considered, but have subsequently become overage. Once this Tribunal had fixed a date i.e. 31.12.2009, overstepping the same is violation of Rule 4 of the IPS (Cadre) Rules, 1954 and the applicants, who stand to lose on that account, have to be considered in relation to the vacancies that would have accrued in the year 2009. The applicants have relied upon the interpretation of Rule 4 of the IPS (Cadre) Rules, 1954 by the the Honble Supreme Court in the case of S.Ramanathan Vs. Union of India & Ors. (2001)2 SCC 118, that the authorities are bound to complete the exercise within the time period provided. The Honble Supreme was pleased in that case to relate back the notification issued in the year 1991 to the year 1989 when the process of cadre review had been initiated. Likewise, it was mandatory on the part of the respondents to effect the impugned notification notionally/retrospectively as on 31.12.2009 in order to fulfill the legal obligations cast upon them.
9. The applicants have further relied upon the case of Hemraj Singh Chauhan & Ors. Vs. Union of India & Ors. [WP (C) No. 19103-04/2006] decided on 14.11.2008 where the Honble High Court considered non-compliance of Rule 4 of Rules as dereliction to duty.
10. The applicants have submitted amongst the grounds that the cadre review pertains to the year 2009 and the vacancies, which ought to have been finalized on or before 31.12.2009, are liable to be treated as existing on 1.1.2010. Accordingly, officers attaining the maximum age till 2009 are liable to be considered as per judgment in Praveen Kumar Vs. UPSC (supra) against the vacancies arising on 1.1.2010. The right of consideration vested in the applicants cannot be defeated on account of lethargy of the respondents.
11. Six respondents have been arrayed as parties in the instant OA, out of which, respondent No.1 (Secretary (Home), Ministry of Home Affairs), respondent no.2 (Secretary, Ministry of Personnel, Public Grievances and Pension), and respondent no.3 (Union Public Service Commission) are the principal parties on behalf of Union of India. Respondent No.4 (Chief Secretary, Uttar Pradesh Government, Lucknow) is the main party on behalf of State Government of UP.
12. Respondent No.1 has filed a counter-affidavit stating that cadre review is a cumbersome exercise that starts with a preliminary meeting between the officials of the Ministry of Home Affairs and the State Governments to finalize its point of view on the proposal for the restructuring of the cadre furnished by the concerned State Government. Thereafter, the proposal is sent to the Cabinet Secretariat and a meeting is held with the DoPT and Department of Expenditure, Ministry of Finance. Following the approval of the afore authorities, the proposal is sent to the State Government and finally notification is issued by the DoPT. The entire process normally takes four to five months to complete. Respondent no.1 further submits that the cadre review has been initiated by requesting the Government of UP to submit its proposal vide letter dated 30.11.2008, which could be submitted only as late as 30.07.2009. The State Government kept its initial proposal revising and a final proposal was forwarded by it to the Central Government through a letter dated 28.12.2009. The notification revising the strength and composition of the Uttar Pradesh cadre of IPS was finally issued vide notification dated 30.3.2010. In the meantime, the MHA had appointed a one-member Committee under one Kamal Kumar, a retired IPS for ascertaining the vital facts like the exact shortages of vacancies in the different State Cadres of the Service, to make a realistic assessment of the number of officers that would be required over the next 10-11 years (2009-20) to man the various senior positions in the State Cadres and the Central Police Organizations duly taking into consideration a large number of ex cadre posts and expansion plans of different States and CPOs, to assess the status of utilization of Central Deputation Reserve problems and that of the status of utilization of the State Deputation Reserve (SDR), elaborate a Recruitment Plan for the period 2009-20, to review the status of occupancy of the promotion posts, to identify the various factors responsible for accumulation of vacancies in the cadre strength of the IPS and to review the existing policy framework for its adequacy in meeting the quantitative as well as qualitative requirements of manpower for the IPS. Kamal Kumar Committee submitted its report on 21.10.2009, on the basis of which, revised guidelines were prepared and circulated on 23.2.2010.
13. The respondent no.1 has also submitted the chart of as many as 13 cadres, which had become due for review of strength and composition and few of them became due after the case of Uttar Pradesh.
14. Respondent no.1 has also relied upon the directives of the Honble High Court in Writ Petition (Civil) No. 4471/2010,which are extracted for easy reference:-
21. Further noting that there is no controversy between the parties as to the issue that the Cadre Review exercise was required to be done and completed by 31.12.2009 and to this extent the substantive findings recorded by the Tribunal are correct, confronted with the vexed question whether at all there was sufficient time to comply with the directions, we answer by holding that the time left to complete the exercise pursuant to the directions issued on 09.12.2009 was too less, in fact, was so less that it was impossible for the petitioner to comply with the directions. Declaring so, we bring the curtains down by clarifying that in the pending contempt proceedings before it, the Tribunal would take note of our present decision and would then proceed to consider whether the fault lies with the State of Uttar Pradesh or it is the Union of India which is in default. If the view taken is that both are in default, the blame would be apportioned. This would be in the contempt proceedings.
22. We clarify once again that if the respondents 1 and 2 take resort to a substantive action seeking directions to be issued in terms of what was issued by a Division Bench of this Court in W.P.(C). NO.19103-04/2006, the issue would be decided in said substantive proceedings.
15. Respondent no.1 has further submitted in its counter affidavit that in the case of Praveen Kumar (supra), the Honble High Court has altered the date of determining the upper age limit for appointment to the All India Service. Initially the age of officers was determined on the first day of January of the next year in which promotional vacancy came into existence. However, it is now being determined on the first day of January of the year in which promotional vacancies came into existence. Accordingly, the Selection Committee meeting was held on 12.12.2012 and name of Kripa Shankar Singh, applicant no.1, was included in the select list of 2010, which was finally approved on 20.12.2010. The respondent no.1 has also submitted a chart spanning from 30.9.2008, when the process of cadre review was initially initiated, to 18.3.2011, when Contempt Petition (C) No. 337/2010 in the matter of Kripa Shankar Singh & Anr. Vs. G.K. Pillai & Ors was dismissed by the CAT, Principal Bench.
16. The respondent no.1 further submits that order in the case of UOI & Anr. Vs. Hemraj Singh Chauhan & Ors. (2010) 4 SCC 290 does not work in favour of the present applicants, as the Honble Supreme Court has held that this Court accepts the arguments of the learned counsel for the appellants that Rule 4(2) cannot be construed to have any retrospective operation and it will operate prospectively.
17. The respondent No.1 has also relied upon the order of the Jabalpur Bench of this Tribunal in the cases of Chandrashekhar Neelkanth & Rameshwar Gupta versus Union of India & Others (OA Nos. 773/2009 and 317/2011 decided on 08.05.2013) wherein it has been held that the cadre review of the IPS cadre cannot be given retrospective effect and can have only prospective effect.
18. The respondent no.6 has also filed his counter affidavit denying the points raised by the applicants in their OA. The respondent submits therein that the respondent no.1 had invoked the writ jurisdiction of the Honble High Court of Delhi vide Writ Petition No. 4471/2010 titled Kripa Shanker Singh Vs. G.K. Pillai whereby the Honble High Court had held the order of the Tribunal unrealistic and had directed the Tribunal to apportion responsibility amongst the Central and State Governments. The cadre review was finally completed on 30.3.2010, almost four months after it had been ordered by the Government. The Contempt Petition No. 337/2010 was dismissed for non-prosecution vide the order dated 18.3.2011 and subsequent application for restoration was dismissed for identical reasons on 16.9.2011.
19. The respondent no.6 has further submitted in Para 12 of the counter affidavit that the applicant no.1 attained the age of 54 years on 1.11.2012 and the applicant no.2 on 28.7.2009. As a consequence of the cadre review, 16 additional vacancies were created for the year 2009, and 39 vacancies for the year 2010, vide notifications dated 12.8.2010 and 1.2.2011. In para 4.20 of the counter affidavit, the respondent no.6 submits that between 1.1.2009 and 31.12.2009, the eligibility list of 2009 for filling up the vacancies for the year 2009A included the name of the applicant no.2. Additionally, the name of applicant no.1 was included between 1.1.2010 and 31.12.2010 for filling up the vacancies for the year 2010. Thus, both the applicants have been promoted to the IPS. Hence, the contention of the applicants that they have been adversely affected due to cadre review not being completed as per order of the Tribunal dated 9.12.2009 in OA No. 3430/2009 does not stand to reason.
20. We have gone through the pleadings of rival parties and such documents as have been produced by them. We have also patiently heard the arguments advanced by them.
21. On the basis of the above, the following two issues emerge as being germane to the decision of this OA:-
(i) Whether the order under Rule 4(2) of IPS (Cadre) Rules, will have prospective or retrospective effect?
Whether it is appropriate for this Tribunal to view non-compliance of order dated 9.12.2009 in OA No. 3430/2009 sufficient to date back the year of vacancy 2009 in respect of applicant no.1?
22. Insofar as first of the issues is concerned, we start by looking at what the different courts have ordered. Relevant Rule 4 of the IPS (Cadre) Rules, 1954 provides as under:-
4. Strength of Cadres.-- 4(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, at the interval of every three years, re-examine the strength and composition of each such cadre in consultation with the State Government or the State Governments concerned and may make such alterations therein as it deems fit:
Provided that nothing in this sub-rule shall be deemed to affect the power of the Central Government to alter the strength and composition of any cadre at any other time:
Provided further that State Government concerned may add for a period not exceeding two years and with the approval of the Central Government for a further period not exceeding two years, to a State or Joint Cadre one or more posts carrying duties or responsibilities of a like nature to cadre posts.
23. From the above, it appears that the provision for review of the cadre under Rule (2) of the Rules, 1954 is normally at an interval of three years. However, a leeway of two years has been given at the behest of the State Government with the approval of the Central Government thereby making the cadre review a quinquennial affair. By and large, this has become a uniform practice.
24. This Tribunal in its order dated 9.12.2009 in OA No. 3430/2009, has held that cadre review has to be undertaken every five years. The last cadre review was held in 2004 and the case was due in 2009 for which the process was also underway. The Tribunal has relied upon the case of Honble Supreme in the case of S.Ramanathan vs. Union of India & Ors. (supra). The Honble Supreme Court held therein that prior to the amendment in the year 1995, infringement of Rule 4(2) of IPS (Cadre) Rules, 1954 was not justifiable. However, following the amendment, the aggrieved party has a right to approach the court, and court will have jurisdiction to issue appropriate directions. In Hemraj Singh Vs. Union of India (supra), the Honble Supreme Court held that there was no justification for delaying the exercise, as it could not be carried out retrospectively. It was in that light, that this Tribunal ordered as under:-
7. In the result, the OA succeeds. The Respondents-Union Ministry of Home Affair, the Department of Personnel & Training, Joint Secretary, MHA and Director (Police), MHA are directed to complete the cadre review of IPS Cadre of U.P. well before 31.12.2009 but in any case, not later than the aforesaid time limit. A copy of this order may be sent to the Respondents through Special Messenger and a copy may be sent to the 5th and 6th Respondents through Speed Post. No costs. However, when the matter was taken to the Honble High Court vide WP (C) No 4471/2010, it held as under:-
21. Further noting that there is no controversy between the parties as to the issue that the Cadre Review exercise was required to be done and completed by 31.12.2009 and to this extent the substantive findings recorded by the Tribunal are correct, confronted with the vexed question whether at all there was sufficient time to comply with the directions, we answer by holding that the time left to complete the exercise pursuant to the directions issued on 09.12.2009 was too less, in fact, was so less that it was impossible for the petitioner to comply with the directions. Declaring so, we bring the curtains down by clarifying that in the pending contempt proceedings before it, the Tribunal would take note of our present decision and would then proceed to consider whether the fault lies with the State of Uttar Pradesh or it is the Union of India which is in default. If the view taken is that both are in default, the blame would be apportioned. This would be in the contempt proceedings.
25. It appears clearly from the above that the Honble High Court, while agreeing with the findings recorded by the Tribunal, found that the time left for completion of exercise was impractical. Therefore, the Tribunal was to take a view as to which of the respondents i.e. Central or State Governments was responsible for the delay. However, no such view could be taken, as the Contempt Petition No. 337/2010 wherein this view was to have been taken, had been closed on account of non-prosecution. Even when it was restored, it met with the same fate. Though we find that both the respondents i.e. respondent nos. 1 and 6 have given a comprehensive chart detailing the date on which each activity had taken place and have tried to shift the blame on each other. However, it is not for us to decide apportioned blame in this OA, as the same could have only been done in the Contempt Petition, which does not survive. On the other hand, the Honble High Court has also taken a note of the fact that while the order of the Tribunal was passed on 9.12.2009 directing the exercise to be completed by 31.12.2009, the same was impracticable. While it is correct on the one hand to accept that the Honble High Court declined to interfere with the substantive part of the order, it modified the order conditionally to apportionalise the blame, which in a way, amounts to revision of the order. This exercise to apportion the respective share of responsibility amongst the Central and the State Government could never be carried out as we have seen above. Hence, it is not quite appropriate to say that the order had attained finality. It had attained finality in substantive part while the portional part was yet to be completed as per the directives of the Honble High Court in its order dated 12.07.2010 in WP(C) No. 4471/2010 as has been quoted above. Insofar as the case of Hemraj Singh Chauhan Vs. Union of India is concerned, it had covered a wide parameter of cases. It had held clearly that statutory duty cast upon the Central and State Government to undertake the cadre review exercise every five years is mandatory subject to exceptions, which may be justified in the facts of the case. The Honble Supreme Court further held that lethargy, inaction or absence of sense of responsibility do not fall within the category of just exceptions. The Honble Supreme Court referred to case of Union of India Vs. Vipinchandra Hira Lal Shah, (1996) 6 SCC 721 to hold that insertion of the word ordinarily makes it clear that there are exceptions, but path must be good. The Honble Supreme Court further referred to case of Syed Khalid Rizvi Vs. Union of India, 1993 Supp (3) SCC 575, wherein considering Regulation 5 of the IPS (Appointment by Promotion) Regulations, 1955, which also contained the word ordinary, held that the select list is the foundation for promotion and impinges upon the legitimate expectation of promoted officers. The Committee should, therefore, meet every year and prepare the select list, to be reviewed and revised from time to time as per the demand of the exigency. However, the Honble Supreme Court allowed retrospective effect to this particular case on the ground that the Government had not offered any plausible explanation. The following paras 47 and 48 make the position clear:-
47. Therefore, this Court accepts the arguments of the learned counsel for the appellants that Rule 4(2) 2 cannot be construed to have any retrospective operation and it will operate prospectively. But in the facts and circumstances of the case, the Court can, especially having regard to its power under Article 142 of the Constitution, give suitable directions in order to mitigate the hardship and denial of legitimate rights of the employees.
48. The Court is satisfied that in this case for the delayed exercise of statutory function the Government has not offered any plausible explanation. The respondents cannot be made in any way responsible for the delay. In such a situation, as in the instant case, the directions given by the High Court cannot be said to be unreasonable. In any event this Court reiterates those very directions in exercise of its power under Article 142 of the Constitution of India subject to the only rider that in normal cases the provision of Rule 4(2) of the said Cadre Rules cannot be construed retrospectively.
26. It goes without saying that this Tribunal is not armed with power of Article 142 of the Constitution of India. Moreover, the order of the Honble Supreme Court in the case of Union of India Vs. Hemraj Singh Chauhan (supra) itself have held a guillotine to retrospective effect to Rule 4(2) of the IPS (Cadre) Rules, 1954 in all other cases, except where the power of Article 142 of the Constitution has been exercised. We find that a coordinate Bench of CAT Jabalpur Bench in the case of Chandrashekhar Neelkanth & Rameshwar Gupta versus Union of India & Others (supra) has clearly held as under:-
5. The respondents, in their reply, submit that cadre review of IAS is carried out in order to assess the need of a State cadre for the next five years. Even though the applicants have repeatedly stated that all those non-cadre/Ex cadre posts, which are in existence for so many years, should have been encadred and shown as senior duty posts under the State Government, in accordance with the mandatory provisions of IAS (Cadre) Rules, 1954, they have failed to quote that particular provision under which the mandatory encadrement of all the ex-cadre posts is to be made. As a matter of fact, there is no such provision in the IAS (Cadre) Rules, 1954. Thus, the instant OAs have been filed by the applicants on wrong basis, and are therefore, misleading. According to the extant rules, on receipt of a proposal from the State Government, the Central Government reviews the cadre strength and composition. In the process, some posts are encadred, while some are decadred, based on functional requirements, and with the result, the total number of senior duty posts may be decreased or increased. In any of the cadre, the posts equal to almost 85% of the senior duty posts are added, for keeping reserve for various purposes, such as State Deputation, Central Deputation, Training, Leave, etc. State Deputation Reserve of 25% of senior duty posts is kept for creation of ex-cadre posts. Thus, if according to the contention of the applicants, all the ex-cadre posts are added to senior duty posts after every cadre review, then the cadre strength will rise, by at least 25% after every cadre review, which may not be desirable according to the scheme. The respondents further submitted that in State of Madhya Pradesh, there is shortage of IAS officers, due to short fall in authorised strength. Therefore, the cadre strength cannot be increased without ascertaining availability of officers from regular recruitment as well as promotion/selection in the cadre.
6. Regarding the contention of applicants, pertaining to 30 ex-cadre posts held by IAS officers for the last 10 years, which have not been included in the mid-term cadre review, the respondents have explained post-wise position in the Office Memorandum dated 17.1.2011 (Annexure A-1), as to why these posts could not be encadred.
7. Regarding the issue of giving retrospective effect to the midterm cadre review carried out in 2006, the respondents relied upon the judgment dated 23.3.2010 passed by the Honble Supreme Court in the matters of Union of India and another Vs. Hemraj Singh Chauhan and others, (2010) 1 SCC (L&S) 1002 : (2010) 4 SCC 290 wherein the Honble Apex court held as follows:-
47. Therefore, this Court accepts the arguments of the learned counsel for the appellants that Rule 4(2) cannot be construed to have any retrospective operation and it will operate prospectively. But in the facts and circumstances of the case, the Court can, especially having regard to its power under Article 142 of the Constitution, give suitable directions in order to mitigate the hardship and denial of legitimate rights of the employees.
48. The Court is satisfied that in this case, for the delayed exercise of statutory function the Government has not offered any plausible explanation. The respondents cannot be made in any way responsible for the delay. In such a situation, as in the instant case, the directions given by the High Court cannot be said to be unreasonable. In any event, this Court reiterates those very directions in exercise of its power under Article 142 of the Constitution of India subject to the only rider that in normal cases the provision of Rule 4(2) of the said Cadre Rules cannot be construed retrospectively.
8. Regarding the reliance placed by the applicants on the order dated 28.1.2011, passed by Hyderabad Bench of CAT in OA No.906/2009, wherein, the respondents have been directed to give retrospective effect to the cadre review of IAS of Andhra Pradesh cadre in the light of the judgment in Hemraj Singh Chauhan (supra), the respondents submitted that the decision of Hyderabad Bench has been challenged by the respondents before Honble High Court of Andhra Pradesh.
9. The applicant filed Rejoinder to the Reply of the respondents. In addition to the issues raised in the Original Application, the applicant has submitted that the judgment of Honble Apex Court in Hemraj Singh Chauhan (supra) bars retrospectivity in normal cases, while in the case of applicants, there are abnormal circumstances, as nearly 163 ex-cadre posts were left out and they were neither encadred into IAS nor discontinued from IAS postings afterwards. Thus, the cadre review of 29.12.2006 was, to put it simply, a farce. Thus, in these abnormal circumstances, cadre revision with retrospective effect has to be undertaken, to protect the fundamental right of applicants of being considered for promotion.
10. The respondents submitted Additional Reply to the Rejoinder, rebutting the contention of the applicant. The respondents submitted that the cadre review of the IAS of any cadre cannot be given retrospective effect for the following reasons:
(i) Rule 4(2) of the IAS (Cadre) Rules, 1954 provides that the cadre review would be carried out ordinarily at the interval of five year meaning thereby that it is not necessary for Governments to carry out the cadre review exactly on completion of five years. It may be before or after the five years.
(ii) 1st proviso to rule 4(2) of the IAS (Cadre) Rules empowers the Central Government to alter the strength and composition of any cadre at any other time.
(iii) The Cadre Review of any cadre is purely an administrative mechanism whereby the cadre strength is not only increased, it may be decreased also. This should not be linked with the provisions of promotional avenues to the eligible officers.
(iv) The cadre reviews are carried out keeping in view the future administrative requirements of any State/Cadre and they are definitely not carried out for providing promotional avenues to the eligible officers.
(v) Cadre review is not meant merely for determination of the vacancies.
11. Heard learned counsel for the parties and carefully perused the records of the respective parties and the documents annexed therewith.
12. The first contention of the applicants is in regard to non-inclusion of certain ex-cadre posts in the revised cadre strength of IAS as notified on 29.12.2006. However, in the OM dated 17.1.2011 (Annexure A-1), post-wise explanation has been given in regard to all the 30 posts as to why they could not be included in the IAS cadre of the State. On perusal of this order we find that most of these posts belong to Public Sector Undertakings or Societies or are tenure posts, which have to come to an end on completion of the project. Thus, we do not find any fault in rejection of claim of the applicants in regard to these posts. In any case, as submitted by the respondents in their reply, there is no provision under which encadrement of all the ex-cadre posts is to be made mandatorily. It is for the employer to determine the strength of the cadre and for such matters, judicial intervention is not required.
13. As regards the other contention of the applicants pertaining to implementation of mid term cadre review with retrospective effect, we find that in the case of Hemraj Singh Chouhan (supra) Honble Supreme Court has clearly held that in normal cases the provision of Rule 4(2) of the said Cadre Rules cannot be construed retrospectively.
27. We also take note of the fact that this Bench of the Tribunal in the matter of R.K. Paliwal & Anr. Vs. Union of India & Ors. (OA No. 2199/2011) decided on 29.01.2014 has deeply gone into the issue and rejected the plea of the applicants for giving promotion from the retrospective effect:
34. As far as the reliance placed by learned counsel for respondent No.3-State of Uttar Pradesh on the judgment of Honble Apex court in Rajasthan Pradesh Vaidya Samiti Sardarshahar and Another Vs. Union of India and Others (2010) 12 SCC 609 and the order of this Tribunal in Vijay Shanker Pandey Vs. Union of India is concerned, the argument put forth by him on the basis of said judgments is only that an argument advanced by the parties before it cannot be accepted by the Court unless the same is supported by an affidavit and evidence. His plea is that since no ground of delay in cadre review held on 6.12.2010 is taken by the applicants in the present original application, the oral arguments in this regard cannot be accepted. We have already viewed hereinabove that in sum and substance the grievance of the applicants is that when the cadre review is held on 6.12.2010 they crossed the age of 54 years and became ineligible for IAS. In fact, the plank plea of the applicant is only to get a chance for being considered for induction in IAS of Uttar Pradesh cadre against such vacancies which could become available had the cadre review been there on 30.04.2008. The plea of delay raised on behalf of the applicants is not accepted by us.
28. We are additionally swayed by the fact that the applicant no.2 does not stand to gain anything. The applicant no.1 is already within IPS and the maximum he can gain by granting retrospectivity is one year seniority. However, the question is not of loosing or gaining one or two years of seniority. It relates to the grant of retrospectivity in promotion. The question is one of upholding a principle of law.
29. Considering the clear opinion of the Honble Supreme Court in Union of India Vs. Hemraj Singh Chauhan (supra) and two orders of the coordinate Benches of this Tribunal, namely, Chandrashekhar Neelkanth & Rameshwar Gupta versus Union of India & Others (supra) decided by the Jabalpur Bench and R.K. Paliwal & Anr. Vs. Union of India & Ors.(supra) decided by the Principal Bench, we feel that the applicants have no case at all for retrospectivity. The OA being devoid of merit is accordingly dismissed leaving the parties being left free to bear their own costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /lg/