Central Administrative Tribunal - Ernakulam
Lalithambika vs M/O Personnel,Public Grievances And ... on 15 November, 2022
1
Central Administrative Tribunal
Ernakulam Bench
O.A No.180/00387/2016
Tuesday, this the 15th day of November, 2022
CORAM:
Hon'ble Mr. Justice Sunil Thomas, Judicial Member
Hon'ble Mr.K.V. Eapen, Administrative Member
1. Ms. Lalithambika, IAS,
Registrar of Co-orporative Societies,
Govt of Kerala, PB No.135,
Statue, Near Press Club,
Thiruvananthapuram-Pin 695001.
2. Mr.K. Gopalakrishna Bhat, IAS,
Special Secretary to Government,
SC & ST Development, Govt. Secretariat,
Thiruvananthapuram-695001.
3. Mr. M. NandaKumar, IAS,
Director of Collegiate Education,
Thiruvananthapuram-695033.
4. Mr. P.M. Ali Asgar Pasha, IAS,
Managing Director,
Kerala Tourism Development Corporation Ltd.,
Thiruvananthapuram-695033.
5. Mr. P.M. Francis, IAS,
Director of Industries and Commerce,
Vikas Bhavan, Thiruvananthapuram-695003
6. Mr. K.V. Mohan Kumar, IAS,
Director of Higher Secondary Education,
Thiruvananthapuram Pin-695033. -Applicants
(By Advocate: Mr. Vakkom N. Vijayan )
Versus
1. Union of India Represented by its
Secretary to the Government of India,
Department of Personnel and Training,
Ministry of Personnel, Public Grievances and Pensions,
North Block, New Delhi-110001.
2. The Accountant General,
(A&E), Kerala,
Thiruvananthapuram-Pin-659001.
OA No.180/00387/2016
2
3. The State of Kerala represented by the
Cheif Secretary to Government, Govt. Secretariat,
Thiruvananthapuram-695001.
4. Union Public Service Commission,
Represented by its Chairman,
Shahjahan Road,
New Delhi-110 001. - Respondents
(By Advocate:Mr. Thomas Mathew Nellimoottil, SPC for R-1 & 4 &
Mr. Baijuraj G, G.P. for R-2 &R-3)
The O.A having been heard on 1st November 2022, this Tribunal delivered
the following order on 15th November, 2022:-
ORDER
Per:Mr.K.V. Eapen, Administrative Member This OA is filed by 6 Indian Administrative Service (IAS) officers of Kerala cadre, who were promoted to Indian Administrative Service from the State Civil Service. They were assigned the allotment years 2008/2009 in the Indian Administrative Service. They have filed the OA with the prayer to quash the order issued by the Department of Personnel and Training (DoPT) dated 24.09.2015, produced at Annexure A-9, turning down their representation that the cadre review of IAS Kerala cadre that was notified in the year 2007 should be given retrospective effect from 01.01.2004. The representation was rejected by the DOPT after it had been considered by the direction of this Tribunal in OA No.442/2015. In addition, the applicants have also sought refixation of their seniority on the basis of their claim for retrospective cadre review to 2004 i.e., from 2008/2009 to an earlier batch.
2. The applicants have largely relied on a judgement of the Hon'ble Supreme Court in Union of India and Another versus Hemraj Singh Chauhan and others (2010) 4 SCC 290. Significantly, the Respondent DoPT has also relied on the same judgement, namely Hemraj Singh Chauhan (Supra), to support their contention that OA No.180/00387/2016 3 the cadre review under Rule 4(2) of the IAS(Cadre) Rules 1954 cannot be considered to have a retrospective effect and can have only a prospective effect. Thus, the basic question to be dealt with in this OA is whether the 1 st Respondent, DoPT is legally bound as per the Supreme Court judgement in Hemraj Singh Chauhan (Supra) to grant retrospective consideration to the date of effect of the cadre review to 01.01.2004 or otherwise?
3. It is submitted by the applicants that the Government of India, DoPT through notification No.11031/10/2004-AIS-II-A dated 05.07.2007 has issued the Indian Administrative Service (Fixation of Cadre Strength) 7th Amendment Regulation 2007 in respect of the Kerala Cadre to take effect from its date of publication in the official gazette. The said notification was published in Extraordinary Gazette of India on 05.07.2007 as produced at Annexure A-1. By this notification, the posts to be filled by promotion and selection under Rule 8 of IAS (Recruitment Rules), 1966 for the Kerala Cadre of the IAS were fixed as 65. Before this notification was issued the promotion posts available in the Kerala Cadre of IAS, as per the earlier notification dated 10.06.1999 produced at Annexure A-2, was 54. Thus, from the notifications at Annexures A-1 & A-2 it is submitted that, from 1999 to 2007 eleven additional promotion posts were created in the Kerala Cadre of IAS under Rule 8 of IAS(Recruitment Rules) 1966 in the 'promotion and selection' quota.
4. The applicants submit that the number of posts identified for the IAS in each State cadre is subject to a quinquennial cadre review. As per their contention the quinquennial cadre review, having been earlier conducted in 1999 as evident from Annexure A-2, should have been conducted in 2004. However, it was conducted later and the notification was issued only in 2007. Even this was done after this OA No.180/00387/2016 4 Tribunal had issued directions on 14.03.2007 in OA No.33/2007 filed by some other Deputy Collectors in the Kerala State Civil Services. This Tribunal had disposed the said OA No.33/2007 (produced by respondents at Annexure R 1(g) along with their reply statement) directing the Government of India to take a decision and pass necessary orders on the proposal of the State Government within a period of 2 months from the date of receipt of copy of the order.
5. It is the submission of the applicants that the DoPT, Government of India as early as December 2004 had requested the 3rd Respondent, Chief Secretary of the Government of Kerala to submit a proposal for a review of the cadre strength and composition of Kerala cadre as the next quinquennial review had become due. A copy of the letter issued by the DoPT in this regard has been produced by the applicants at Annexure A-3 and also by respondents at Annexure R 1(d). It is to be noted that the respondents in their reply statement have contended that the process of appointment of State Civil officers to the IAS under the Indian Administrative Service (Appointment by Promotion) Regulations 1955 has to be initiated by the State Government with the determination of year-wise vacancies. However, the letter dated 22.12.2004 of Government of India (DoPT) was replied to by the State Government only on 19.10.2005, vide a copy of same produced at Annexure R1(e). After this it is submitted by the respondent/DoPT, that a preliminary meeting was held in the DoPT on 22.05.2006, wherein, it was decided that the State Government would have to come up with a revised proposal. The State Government was then requested to submit the proposal to DoPT vide letter dated 24.05.2006, produced at Annexure R1(f). It is further submitted by the respondent/DoPT that the State Government was reminded as per emails dated 07.03.2007 and 13.03.2007 and letter dated 30.03.2007 for early submission of the cadre review proposal. However, OA No.180/00387/2016 5 there was no further communiction from the State Government till March 2007, when it is submitted the DoPT received the order dated 14.03.2007 passed by this Tribunal in OA No.33/2007. After this was received, a revised proposal was submitted by the State Government as per letter dated 28.04.2007 along with a request that retrospective effect may be give to the cadre review. This letter has been produced at Annexure R1(h) in the reply statement and at Annexure A-5 in the OA. It is to be noted that it is this letter that specifically makes a request to the DoPT to give a retrospective implementation to the cadre review with effect from 01.01.2004.
6. The Cadre Review Committee meeting was then finally held on 25.06.2007 under the Chairmanship of Cabinet Secretary as per the respondent/DoPT. The minutes of meeting are produced as Annexure R1(i). The Cadre Review Committee took a considered view to increase the total cadre strength of the IAS cadre of Kerala from the existing 178 to 214, an increase of 20.22%. Further, it was also decided by the Cadre Review Committee that the recommendation of the Committee should only take effect from the date of issue of the Gazette Notification. After that the IAS cadre strength of Kerala was notified on 05.07.2007, in the official Gazette produced at Annexure A-1.
7. It is the contention of by the respondent/DoPT that the Central Government had diligently performed its statutory duty in consultation with the State Government and thus carried out the IAS cadre review in 2007. However,on the other hand, the applicants have submitted that a person who joins the State Civil Service as a Deputy Collector does so with the hope and desire that on completion of 8 years of service, there is every possibility of he or she being considered for OA No.180/00387/2016 6 promotion into State Cadre of IAS, if the dossiers and personal records of the officer come upto the standard fixed by the competent authority. Without notifying the number of cadre posts occupied by non-cadre officers and without promptly effecting quinquennial cadre review, it is submitted by the applicants that the respondents, both in the Centre and the State, have shattered the legitimate expectations of the State Civil Service officers. It is submitted that, except in the case of the applicants' batch, all other earlier directly recruited Deputy Collectors in the State Civil Service had been promoted to the IAS on completion of 8 years as Deputy Collector. However, in the specific case of the applicants it is submitted that all of them had completed at least 15 years as Deputy Collector before they were promoted into the IAS. The main reason for this as per the applicants was the delay in conducting the quinqennial cadre review, which should have taken place or given effect from 2004 instead of 2007.
8. In addition, it is also the contention of the applicants that the DoPT had been following the practice of giving the effect of Cadre Review from the eligible date in other cases. In this connection the applicants submit that Indian Police Service (IPS) officers in the Rajasthan cadre were given such a benefit. It is submitted that though the notification in respect of them was issued on 07.03.2006, it was given with retrospective effect from 01.08.2003. A copy of the amendment made in regulations issued by DoPT is produced at Annexure A-6. Hence, it is contended that on similar grounds the cases of the applicants should also be considered and the revised cadre strength fixed with effect from 01.01.2004. The respondent/DoPT have sought to explain this position in their reply statement. It is submitted by them that the notification in respect of Rajasthan cadre IPS officers dated 07.03.2006, which has been produced by the applicants at Annexure A-6 in the OA and at R 1 (a) in the OA No.180/00387/2016 7 reply statement, was actually issued on the basis of an earlier notification dated 01.08.2003, produced at Annexure R1(b). It was detected that the earlier issued Annexure R1 (b) notification had some errors in calculating the number of direct recruitment posts and promotion posts and, therefore, the same was rectified and the cadre strength of IPS of Rajasthan was then renotified on 07.03.2006 by giving effect from 01.08.2003 by Annexure A-6/ R1(a). As such it is submitted that it cannot be construed that the IPS cadre review of Rajasthan was given a retrospective effect and, therefore, the IAS cadre review of Kerala should also be given a retrospective effect
9. The applicants have further submited that at the time of filing the OA most of them were on the verge of retirement and that they will have to retire from the IAS in the junior scale which will cause adverse effects in emoluments and pension. They had given many representations for a retrospective effect to be given to the cadre review. They had finally filed OA No.442/2015 before this Tribunal as there had been no response. The Tribunal by order dated 10.06.2015, produced at Annexure A-8, had directed the 1st Respondent(DoPT) to dispose of the representation in this connection within three months. The disposal of the representation, which has been produced as impugned order at Annexure A-9 in this OA, has aggrieved the applicants as it rejected their request for giving retrospective effect to the cadre review from the year 2007 to the year 2004 and also rejected the request to refix their seniority in the IAS accordingly. As earlier noted the applicants have relied on the decision of the Hon'ble Apex Court in Hemraj Singh Chauhan(Supra). The judgement had held that the duty cast on the State Government and the Central Government is to undertake a cadre review exercise every five years which is ordinarily mandatory though subject to exceptions which OA No.180/00387/2016 8 may be justifiable in facts of a given case. It is submitted by the applicants that in this matter it is lethargy, inaction and absence of a sense of responsibility on part of the respondents which has prevailed and it cannot fall within the category of just exceptions. In Hemraj Singh Chauhan(Supra), the Hon'ble Supreme Court had justified the decision taken by the High Court to give retrospective effect to the cadre review on the ground that delay was on part of the Government and that the respondents were not responsible for the delay. It is therefore contended by the applicants that the DoPT has failed to understand the decision in Hemraj Singh Chauhan(Supra) in its proper perspective. Further, it has been also held that the right of eligible employees to be considered for promotion is virtually a part of their Fundamental Rights guaranteed under Article 16 of the Constitution of India. The guarantee of a fair consideration in the mattter of promotion under Article 16 flows from guarantee of equity under Article 14 of the Constitution. There is thus a legitimate expectation on the part of the State Civil Service officers for being considered for promotion in due time, which has been defeated by both the Governments, at the Centre and the State.
10. In this connection the applicants also point to the specific instructions under Rule 4 of IAS(Cadre) Rules 1954 under Note 1.10. This Note has laid down that adequacy of the recruitment rate for the All India Services is vital to the proper functioning and the management of the Government. It has also stated that two measures are needed to ensure this, the first being the prompt encadrement of new posts likely to last over an extended period and the second being the assessment of future needs in advance on the basis of past experience and future plans. The instructions also state that a failure in either of the two requirements will affect the adequancy of cadre strength thus leading to strain and stress which some of the OA No.180/00387/2016 9 States are facing today. The applicants further submit that the Apex Court in S. Ramanathan v. Union of India { (2001) 2 SCC 118} while considering Rule 9 of IPS recruitment rules along with Rule 4(2) of the Cadre Review held that " When Rules and Regulations provide for certain things to be done at a certain period, the same should normally be observed and if there has been a failure the court should compel the performance of that duty." In A.N. Sehgal v. Raje Ram Sheoren {(1992) Suppl. 1 SCC 304} the Apex Court had held that the absence of chances of promotion would generate frustration and an officer would tend to become corrupt, sloven and a mediocre. The chance of promotion and the aspiration to reach higher echelons of service would enthuse a member of service to dedicate himself assiduously to the service with diligence, etc. In Mohanlal Kapoor's case {(1973) 2 SCC 836} it was held that preparation of the select list every year is mandatory. Hence, it is submitted that, in the present case the Deputy Collectors of State Civil Services who had completed the qualifying service had been waiting right from the year 2001 onwards for the chance of promotion to the IAS. Their expectations have been shattered solely because of the unjustifiable delay on the part of the respondents in effecting the quinquennial cadre review at the appropriate time. The delay of more than 3 years in conducting the cadre review has thus caused great hardship and the right to get promotion to IAS has been delayed for the applicants.
11. It is further submitted by the applicants that Rule 4(2) of IAS Cadre Rules 1954 stipulates as follows:'The Central Government shall, ordinarily at the interval of every 5 years, re-examine the strength and composition of each such cadre in consultation with the State Government or the State Governments concerned and may make such alterations therein as it deems fit:' It is thus submitted that the authorities have violated the statutory rules. The Hon'ble Apex Court in Union of OA No.180/00387/2016 10 India v. Vipin Chandra Hiralal Shah {1996 (6) SCC 721} while considering regulation 5(1) of IAS (Appointment by Promotion) Regulation 1955, which is in pari materia with the aforestated 1954 Cadre Rules, had considered the scope of the word 'ordinarily' in detail. The Apex Court had held that insertion of the word 'ordinarily' does not alter the intent underlying the provisions. It only means that, unless there are good reasons for not doing so, the Selection Committee shall meet every year for making the selection. It is submitted that the meaning attributed to the word 'ordinarily' in the above case is squarely applicable to the Rule 4(2) of the IAS Cadre Rules 1954 and, therefore, in other words, it is mandatory on the part of the Central Government to effect a cadre review every 5 years to follow the letter and spirit of the Rules. It is submitted that from 2003 onwards the eligible Deputy Collectors were making representations and in 2004, the Central Government had also requested the State Government to send the proposal. When the proposal was finally sent the Chief Secretary of the State in categorical terms had requested (at Annexure A-5) to give retrospective effect to the cadre review from 01.01.2004. Hence, in view of the clear provisions in the IAS Cadre Rules and the Court judgements, the DoPT should have given retrospective effect to the implementation of the Rules from 01.01.2004. The delays were only on the part of the two Governments and not due to the fault of the officers. In fact, the Apex Court has held in (2005) 5 SCC 728 that the DoPT has the primary responsibility of doing the cadre review and any delay will stall the promotional avenues of the State Civil Service officers.
12. In response to the above contentions, the State Government filed a reply statement (on behalf of the Respondents-2 &3). It appears that there is nothing in the reply statement regarding the delay alleged by the applicants on part of the State OA No.180/00387/2016 11 Government in sending the proposal in time for the quinquennial cadre review. The reply only points out that the DoPT, vide order No.22012/12/2015-AIS-II dated 24.09.2015, produced as the impugned order at Annexure A-9 in the OA had turned down the proposal for preponing the cadre reorganisation to the year 2004 citing valid reasons. It is submitted that as per the prevailing Manual Provisions the matters under litigation come solely under the ambit of Government of India. The leeway of the State Government is limited as they act as per the directions of Government of India and the relevant Manual Provisions. It is submitted by the State Government that the action taken in the case by the respondents is strictly in conformity with the prevailing Manual Provisions/Government of India/DoPT orders. It is, therefore, submitted that Tribunal may pass appropriate orders after considering the reply statement filed by the 1st and 4th respondents (Government of India/UPSC).
13. The respondents(DoPT) have filed a detailed reply statement, on the other hand parts of which have already been referred to earlier. It is submitted by them at the outset that the process for appointment of State Civil Service officers to the IAS under the IAS (Appointment by Promotion) Regulations, 1955 has to be initiated by the State Government with the determination of year-wise vacancies. However, as regards the cadre review of the IAS, it is submitted by the Respondent/DoPT that it is not necessary to carry out the Cadre Reviews exactly on completion of five years. It is their interpretation that Rule 4(2) of the IAS (Cadre) Rules 1954 has only provided that the cadre review would be carried out ordinarily at the interval of five years, meaning, it is not mandatory for the Governments to carry out the cadre review exactly on completion of five years. It may be at a time even after the five years, depending upon the functional requirement of the cadre. It is further OA No.180/00387/2016 12 submitted that cadre review is carried out to assess the needs of a State/Cadre for the next five years under the IAS (Cadre) Rules 1954 and is not concerned with promotional prospects of State Civil Service Officers under the IAS (Appointment by Promotion) Regulations, 1955. The cadre review should not, thus, be viewed as an exercise which is being carried out to provide promotional avenues to the eligible State Civil Service officers. The impugned order at Annexure A-9 issued by them has explained the process of cadre review along with a justification for the same. It is submitted that after the direction of this Tribunal in its order dated 10.06.2015 in OA No.442/2015 was received, the respondents had examined the whole issue afresh. The respondents then rejected the representations submitted by the applicants by the speaking order dated 24.09.2015 (produced as Annexure A-9 in the OA/ R 1(c) in the Reply). However, the applicants have filed this OA on the same subject matter in the same Tribunal seeking for the same relief i.e. giving retrospective effect to the IAS cadre review that was done in the year 2007 to the year 2004.
14. It is submitted by the respondents (DoPT) that the rejection of the demand of the applicants by the Annexure A-9/ R 1(c) order is actually based on the judgement dated 23.03.2010 passed by the Apex Court in Hemraj Singh Chauhan (Supra), The respondents have drawn attention to the crucial pragraphs in the said judgement which had indicated 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 satisfiled 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 OA No.180/00387/2016 13 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."
It is submitted that the contention of the applicants is based on hypothetical assumptions that had the cadre review been conducted and completed in the year 2004 the applicants could have been considered for their induction into IAS much earlier. The fact on record is that applicants were considered against the IAS State promotion vacancies of the year 2008/2009 and were thus inducted against the year 2008/2009. Subsequently, they were assigned the allotment year as per their entitlement as calculated in terms of Rule 3(3)(ii) of the IAS (Regulation of Seniority) Rule 1987. It is submitted that it cannot be presumed that an equal number of vacancies in promotion quota of the IAS would have been available had the cadre review been carried out in the year 2004. It is submitted if the review had been carried out in 2004 that the State promotion posts could have been reduced also, as per the then prevailing requirements of the State Government. Further, it is submitted that since there had been no request or proposal from the State Government for carryng out the IAS cadre review, the State had to be reminded to do so by the letter of the Central Government dated 22.12.2004, referred to earlier. After the proposal complete in all aspects was received, the matter had been considered by the Cadre Review Committee (CRC). It had been decided by CRC, which is headed by the Cabinet Secretary, that the Committee's recommendations should take effect from Gazette notification i.e. 05.07.2007.
15. In addition to the points outlined above, the respondent/DoPT have also referred to an OA filed by the State Civil Service officers of Tamil Nadu who had been inducted into the IAS consequent to the cadre review for Tamil Nadu held in the year 2008. The prayer in the OA therein was to backdate the cadre review to OA No.180/00387/2016 14 the year 2003, when the cadre review was actually due. The said State Civil Service officers of Tamil Nadu had filed OA No.1762/2014 before the Chennai Bench of this Tribunal asking for backdating the effect of review to 2003. When the matter was considered by the Tribunal there was a difference of opinion between two Members and then the OA was referred to a 3 rd Member(Judicial). Finally, by a majority of the 3rd Member (Judicial) and the Administrative Member, it was held that retrospective effect cannot be given to cadre review and that the recommendations of the Cadre Review Committee will take effect prospectively. A copy of the order in OA No.1762/2014 is produced as R 1(j) by the respondent/ DoPT and it is contended that the reasoning therein is applicable to this case. They reiterate that the cadre review of the IAS/IPS/IFS is carried out in order to assess the needs of a State/Cadre for the next five years. It is definitely not carried out to identify more posts to provide promotional avenues to the eligible State Service Officers. The cadre review of any cadre is purely an administrative mechanism whereby the cadre strength could be increased but also could be decreased. Further there could be increase or decrease in the IAS posts within the said Cadre at different pay scales or grades. It is submitted that giving retrospective effect to the cadre reviews would have consequential effects and inspire other States for giving the same effect to the cadre reviews. This may increase the number of IAS officers without any administrative requirements. In effect, therefore, the cadre reviews are not meant merely for determination of the vacancies. The respondents reiterate that the applicants had been promoted and were allotted the select list for the years 2008/2009 for the vacancies in the year 2008/2009 and, thus, cannot claim to be assigned an earlier year of allotment simply on the ground that the cadre review was delayed and that they were eligible to be inducted into IAS in the year 2004/2005. Again they reiterate that it cannot be construed that the promotion posts would have OA No.180/00387/2016 15 increased in 2004; it could have decreased resulting in reduced promotion posts.
16. We have gone through the above contentions carefully and considered the relevant issues. The respondents make their case that there is no vested right given to the applicants, either in the Rules or by the judgements cited, which calls for a clear consideration of cadre review to be allowed with effect from a retrospective date i.e. 2004. While there is quite an unexpected delay in the cadre review resulting in being completed only in 2007 instead of 2004, it cannot therefore be, ipso facto, concluded that this has taken away their right to be considered for promotion to the IAS. All of them did get promoted in the year 2008/2009 which implies that their consideration for promotion had taken place. Ofcourse if the cadre review had been done earlier it may have given them a chance for promotion sooner. But, that would depend also on the number of posts that would have been approved for increase at that time. However, it is not to be taken for granted that there would have been concommitant increase in posts if the review had been conducted earlier. Further promotion also depends on other factors such as personal records/APARs etc. at that time of all the officers in the zone of consideration and seniority. As brought out by the respondents the purpose of the cadre review is different to what is being implied in the reliefs sought for in the OA i.e. it appear that the purpose of cadre review as understood by them appears to be to create opportunities for promotion from State Civil Services into All India Services. The real purpose of such reviews in the larger context is to work out the number of officers that are required in the All India Services to man the various posts in the State Government, given overall development considerations as well as the role to be played by the Government in different areas. In such a situation it may well be likely that the number of posts within the Government are increased. However, all such posts need not be OA No.180/00387/2016 16 considered for encadrement in the IAS. It depends on the requirement and analysis done by the State and Centre together at that point of time.
17. Further, the quinquennial period of 5 years for this ordinarily to be done as indicated in the Rules is so prescribed so that sufficient time is elapsed to analyse whether the requirement of posts was adequate or not for manning the needs of administration. It is contended by the applicants that the word 'ordinarily' should mean almost mandatorily requirement in view of the spirit of the judgements of the Hon'ble Supreme Court in Vipin Chandra Hiralal Shah (Supra) as well as the findings in Hemraj Singh Chauhan case(Supra) especially in view of the observation at paragraph 46. It is to be noted, however, as will be specifically pointed out later, the scope for this Tribunal as a result of these judgements to arrive at a conclusion that the cadre review should be backdated is limited. The contention that the scope and purpose of review of cadre has larger goals than just promotion from the State Civil Service into All India Service is significant and is at the crux of our consideration. Further, it is also to be noted that in no case any juniors of the applicants were promoted before them. Overall, therefore, we are not able to accept the arguments of the applicants in the matter.
18. We have also gone through the order dated 16.09.2015 of the Chennai Bench of this Tribunal in OA No.1762/2014, referred to earlier, which, as noted dealt with a similar prayer for backdating of the effect of cadre review retrospectively. The Chennai Bench in OA No.1762/2014 also considered the findings in Hemraj Singh Chauhan case(Supra) and also specifically considered whether the Cadre Review can be done retrospectively. It was found in the orders written by the deciding Judicial Member to whom it was referrred as follows:
OA No.180/00387/2016 17 "21. It is well settled principle in service jurisprudence that even when there is a vacancy, the State is not bound to fill up such vacancy nor is there any corresponding right vested in an eligible employee to demand that such post be filled up. This is because the decision to fill up a vacancy or not vests with the employer who for good reasons, be it administrative, economical or policy, can decide not to fill up such posts. This principle applies with all the more force in regard to the creation of new vacancies like the encadrement of new posts, more so when such encadrement or creation of new posts is statutorily controlled.
22. In view of the above discussion, I find that the enhanced cadre strength of IAS in the Government of Tamil Nadu notified in G.O.Ms.1028 Public (Special-A) Department, Government of Tamil Nadu dated 6.09.2008 can be operated only from the date of notification. The issue is answered accordingly and and the O.A. is dismissed. There shall be no order as to costs."
19. We are in concurrence with the above orders of the Central Administrative Tribunal, Chennai Bench in OA No. 1762/2014. Besides this, it should also be considered that under Article 142 of the Constitution, only the Hon'ble Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe. The judgement in Hemraj Singh Chauhan case(Supra) was rendered by the Hon'ble Supreme Court under these powers to give suitable directions in order to mitigate the hardship and denial of legitimate rights of the employees. The directions are thus given by the Hon'ble Supreme Court solely in exercise of its powers under Article 142 of the Constitution of India. The same judgement also made it clear that in normal cases the provision of Rule 4(2) of the said Cadre Rules cannot be construed retrospectively, unless there are some extremely exceptional or hardship considerations.
OA No.180/00387/2016 18
20. We note that the IAS Cadre Rules 1954 does not have scope for any retrospective implementation. Further, this Tribunal has no power to issue any direction to make the Rule to be complied retrospectively. Hence on this ground, as well as on the overall merits of the matter discussed earlier, we cannot agree to the reliefs sought in the OA.
21. OA is accordingly dismissed. No order as to costs.
K.V. Eapen Justice Sunil Thomas
Administrative Member Judicial Member
va
OA No.180/00387/2016
19
List of Annexures
Annexure A1 -True copy of the Notification No.11031/102004-AIS-IIA dated 05.07.2007 published in official gazette Annexure A2- True copy of the notification No.11031/98/AIS(II) A&B dated 10.06.1999 Annexure A3-True copy of the letter dated 27.12.2004 issued by the 1 st respondent to the 3rd respondent Annexure A4- True copy of the letter dated 23.03.2006 issued by the 3 rd respondent to the 1st respodent Annexure A5 - True copy of the letter dated 28.04.2007 of the 3rd respondent to the 1st respondent seeking retrospective effect to the cadre review Annexure A6 - True copy of the gazette notification regarding amendments carried out by the 1st respondent in granting cadre review with effect from the due in the case of Rajasthan IPS officers Annexure A7 - True copy of the representation dated 19.02.2015 submitted by the applicants to the 1st respondent Annexure A8 - True copy of the order dated 10.06.2015 passed by the Hon'ble Tribunal Annexure A9 - True copy of the order dated 24.09.2015 passed by the 1 st Respondent **** Annexure R1(a)- True copy of notification dated 07,03.2006. Annexure R1(b)- True copy of notification dated 01.08.2003 Annexure R1(c)- True copy of speaking order dated 24.09.2015 Annexure R1(d)- True copy of Department's letter dated 22.12.2004 Annexure R1(e)- True copy of the State Government's letter dated 19.10.2005 Annexure R1(f)- True copy of letter dated 24.05.2006 Annexure R1(g)- Ture copy of order dated 14.03.2007 of this Hon'ble Tribunal in OA 33/2007 Annexure R1(h)- True copy of letter dated 28.04.2007 Annexure R1(i)- True copy of the minutes of the CRC meeting held on 25.06.2007 Annexure R1(j)- True copy of order of the 3 rd Member (J) of Madras Bench of the Tribunal in OA 1762/2014 **** OA No.180/00387/2016