Central Administrative Tribunal - Bangalore
Dhirendra Kumar Jha vs M/O Finance on 8 February, 2019
1 OA No.
170/00404/2018/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH
ORIGINAL APPLICATION NO.170/00404/2018
DATED THIS THE 08 TH DAY OF FEBRUARY, 2019
HON'BLE DR.K.B.SURESH, MEMBER (J)
HON'BLE SHRI C V SANKAR, MEMBER (A)
Sri Dhirendra Kumar Jha,
S/o. late Sri Upendra Prasad Jha,
Aged 52 years,
Working as
Additional Commissioner of Income Tax,
Range-4(1), BMTC Building,
80 Feet Road, 6th Block,
Koramangala,
Bengaluru - 560 095
Residing at
Flat No. F-7, Type-V,
Income Tax Colony,
2, Infantry Road,
Bengaluru - 560 001 .....Applicant
(By Advocate Shri Aravind V. Chavan)
Vs.
1. Union of India,
Ministry of Finance,
North Block,
New Delhi - 110 001
Represented by Revenue Secretary
2. Central Board of Direct Taxes,
North Block,
New Delhi - 110 001
Rep. by its Chairman
2 OA No.
170/00404/2018/CAT/BANGALORE
3. Central Vigilance Commission (CVC)
Satarkta Bhavan,
G.P.O. Complex,
Block-A, INA,
New Delhi - 110 023
Rep. by its Secretary .....Respondents
(By Shri V.N. Holla, Counsel for the Respondents)
ORDER
DR. K.B. SURESH, MEMBER (J):
While working as Additional Commissioner of Income Tax, Central Range-1, Bengaluru, applicant was holding additional charge of Additional Commissioner, Central Range-2, Bengaluru and one Shri S.S. Hari Rao was working as Assessing Officer under the applicant in Central Range-2, Bengaluru. Apparently this Shri Hari Rao had passed assessment orders and dropped penalty proceedings in a case without intimating the range head. It is apparently contrary to the CBDT circular and Section 153 D of the IT Act. Therefore, the applicant gave a complaint to superior officers as F. No. ACR/Addl.CIT/CR-1/07-08 dated 07.11.2007 which we quote:
"OFFICE OF THE ADDITIONAL COMMISSIONER OF INCOME TAX CENTRAL RANGE-1, BANGALORE F. No. ACR/Addl.CIT/CR-1/07-08 7th Nov 2007 To The Commissioner of Income Tax Karnataka (Central), Bangalore Sir, 3 OA No. 170/00404/2018/CAT/BANGALORE Sub: ACR of Sri S.S. Hari Rao the then DCIT CC2 (1), Bangalore for the F.Y. 2006-07 Ref: The letter of Sri Hari Rao dated 25-10-2007 and my letter dated 31-10-2007 on the above subject.
****** Kindly refer to the above, It has been seen from the letter of ACIT Central Circle 2(1), Bangalore dated 29-10-2007 that Sri Hari Rao had disposed 11 search assessments of Prasad Reddy group for the A.Y. 2006-07 on 11-5-2007. In this group search was conducted on 8-11-2005. As per search and seizure guidelines issued on 22-12-2006 the A.O. was suppose to discuss the show cause notice to be issued to the assessee with the undersigned, but he has never informed me about such cases, which he was planning to dispose though the cases were time barring on 31-12-2007. In all these cases he has accepted the returned income. In one glance of the order it can be said that the officer was in a hurry to dispose the cases. The new provision for approval of search assessment has come in the statute from 1-6-2007. The unusual behavior of the officer can only be explained by him. He had hardly any respect for the guidelines issued by the C.B.D.T. This also explains his casual approach. The list of cases disposed by him alongwith return income and assessed income is enclosed for kind perusal.
Yours faithfully, (D.K. JHA) Addl. Commissioner of Income-Tax, Central Range-1, Bangalore Encl: as above Copy to DGIT (Inv), Bangalore for information"
2. The letter was issued to the Commissioner of Income Tax, Karnataka (Central), Bangalore who is the superior authority with a copy to Director General of Income Tax (Investigation). The contents of this letter was that this Shri Hari Rao had disposed 11 search assessments of the Assessment Year 2006-07 for which a group search was conducted 4 OA No. 170/00404/2018/CAT/BANGALORE on 08.11.2005. Apparently this Shri Hari Rao had disposed off search assessments on 11.05.2007 whereas on 01.06.2007, i.e., after about 20 days a new provision for approval of search assessment has come into statute.
3. Apparently, by the time the search assessment was completed and disposed off, the new provision regarding search assessment issued by the CBDT had not yet come into force. Naturally, at this point of time the department was also unsure of how to proceed in the matter.
4. It appears that following this complaint which he had produced as Annexure-A2, Shri Hari Rao had filed a complaint against the applicant for interference in his work and also had approached the National Commission for Scheduled Castes/Scheduled Tribes with the resultant complications for him. Apparently at a later stage following Annexure-A2 letter, departmental proceedings were initiated against Shri S.S. Hari Rao also. But, in the meanwhile, after roughly about 10 years the CBDT have written to the Central Vigilance Commission vide F. No. DGIT(Vig)SZ/VCR/03/16 dated 22.06.2017 following which the Central Vigilance Commission issued Annexure-A7 which we quote:
"CENTRAL VIGILANCE COMMISSION Dated 16.11.2017 OFFICE MEMORANDUM Sub: Complaint against Shri Narendra Kumar, the then Addl. CIT, Central Range-2, Bangalore and Shri 5 OA No. 170/00404/2018/CAT/BANGALORE D.K. Jha, Addl. CIT, Central Range-2, Bangalore - reg.
***** CBDT may refer to their F.No. DGIT (Vig)/SZ/VCR/03/16 dated 22.06.2017 on the subject cited above.
2. The case has been examined by the Commission. Commission's observations are as under:
i) It is the basic, primary, fundamental and probably the only duty of the JCIT/Additional CIT to monitor the work of his immediate subordinate, the assessing officer and assessment work is the main function. While the statute up to 1.4.2003 and after 1.6.2007 required the statutory approval by the Additional Commissioner, the primary responsibility of monitoring and supervising the work of assessment by Assessing Officer lied with the Additional Commissioner. In fact, the manuals of the Department are very clear on this. The officers meek plea that Shri Hari Rao did not consult them and that they did not approve the assessment order puts them in the position of mute spectators or audience and not in the role of Additional Commissioner. They have clearly failed in their administrative responsibility of ensuring that the assessments in these cases were completed appropriately in accordance with the provisions of law.
Whether the administrative instructions required approval by them or not, they have powers u/s 144A if they wanted to intervene statutorily. Particularly central charges are very compact and small charges wherein with each assessing officer may have 6 to 7 groups and Additional Commissioner around 15 to 20 groups of cases. It cannot be believed that Additional Commissioner is incapable of supervising the work in these cases. While no malafide is attributed against these officers, they clearly failed to discharge their duties making themselves liable for misconducts of lack of devotion to duty and to some extent even conduct unbecoming of a Government Servant. The excuses given by the officers are not tenable.
Regarding the justification of Shri Narendra Kumar
ii) about there being no underassessment in the case of 6 OA No. 170/00404/2018/CAT/BANGALORE assessment made by Shri Rao in a particular case as the income has only been shifted from one head to another, when the officer did not monitor the assessment and he was allegedly not consulted by Shri Hari Rao nor he suo moto exercised his powers of supervision monitoring and control how does the question of his now claiming that there is no underassessment, etc. arise. If his argument is to be taken on merits it would mean that he was aware of the wrongs in the assessment and was convinced that the assessment order passed by Shri Rao was appropriate and that is why he did not intervene. If he had not monitored the assessment at all the question of judging the correctness of the assessment does not arise and he can only be accused of inadequate supervision. The officer seems to be inconsistent in his explanation, firstly claiming that he was not involved in process of assessment and secondly justifying inappropriate assessment.
iii)As regards the failure of the Additional Commissioner in approving the inappropriate refunds granted by Shri Rao, it is strange to note that the officers explanation that the refunds have only 'been adjusted' against self assessment default in case of other persons of the same group has been sought to be accepted on the ground that there is no loss to revenue. Firstly, the officer grossly failed in verifying as to how refund arose. In the instant case refund arose due to determination of income at less than what was originally admitted and as a result the pre paid tax was for refunded. This is something not believable as a mere casual look could have detected this issue. while the officer failed in his duty to verify refund, when it is pointed out now, he takes the plea that the refund has only been adjusted against self assessment tax default of others in the same group. Either the officer approved the refund to enable adjustment towards taxes of another person in which case it is a different kind of misconduct that the refund was inappropriately given. If the officer did not verify the computation and approved the refund without application of mind, it is another misconduct. The explanation of the officer that it got adjusted towards demand of somebody else, is not relevant. Loss to Revenue by way of inappropriate refund in that case has already crystallized. In either case, there 7 OA No. 170/00404/2018/CAT/BANGALORE was a clear dereliction of duty. It is not CBDT and the Suspect officer's case that it is not the duty of Add. CIT to verify the refund nor that he did not verify the refund. (as claimed in the matter of assessment).
3. In view of above, Commission viewed that a clear case of lack of devotion to duty has been made out in respect of both the aforesaid officers. Therefore, the Commission would advise initiation of minor penalty proceedings against Shri Narendra Kumar, CIT and Shri D.K. Jha, Addl. CIT.
4. Department file No. DGIT (Vig)/SZ/VCR/03/16 is returned herewith. Receipt of Commission's advice/Department's file may be acknowledged.
(Rakesh Desai) Director Encl: As Above C.B.D.T. (Smt. Abha A Kishore (CVO), 1st Floor, Dayal Singh Library Building, 1, DeenDayal Upadhyay Marg, New Delhi"
5. The CVC seem to have taken a view that "It cannot be believed that Additional Commissioner is incapable of supervising the work in these cases. While no malafide is attributed against these officers, they clearly failed to discharge their duties making them liable for misconducts of lack of devotion."
6. Acting under the advice of the CVC, the concerned authority seem to have issued F. No. C-14011/19/2018-V dated 06.04.2018 being the charge memo under Rule 16 of CCS (CCA) Rules, being a charge of minor nature.
8 OA No.
170/00404/2018/CAT/BANGALORE
7. In Board of Education Vs. Rice (1911) AC 179 it was held "but there is a minimum standard to be observed by anyone who decides anything." Therefore, what is the minimum standard to be observed by anyone who decides something. Apparently, Shri S.S. Hari Rao was a quasi-judicial officer. He may have passed a right order or a wrong order but then administrative control over him is limited by certain requirements of law.
8. Therefore, now we have a conflict situation. The Hon'ble Apex Court in Mr. X Vs. Hospital Z reported in AIR 1999 SC 495 have held "where there is a clash of two Fundamental Rights, the right which would advance the public morality or public interest would alone be enforced through the process of Court, for the reason that moral considerations cannot be kept at bay and the Judges are not expected to sit mute but have to be sensitive." The question then is could applicant have interfered in the exercise of judicial discretion by Shri S.S. Hari Rao as the correctness or not of his discretion is to be tested before the Appellate Commissioner, the Income Tax Appellate Tribunal, the Hon'ble High Court and the Hon'ble Supreme Court . These are the channels available to test the correctness or not of such proposition. The Hon'ble Apex Court in G B Mahajan Vs. Jalgaon Municipal Council reported in 1991 (3) SCC 91 held "The Court will not 9 OA No. 170/00404/2018/CAT/BANGALORE interfere with an order of an administrative authority or the Government where the order rest on its statutory discretion unless the order is arbitrary or capricious." There is no opportunity for the applicant to verify the capriciousness or abuse of discretion by Shri S.S. Hari Rao as he is not in possession of the file and had at the right time informed the superior authorities who could have taken appropriate action including the very same Director General of Investigation who had referred the matter to the CVC after 10 years.
9. Besides, at the point of time when the disposal of assessment was made by Shri Hari Rao, the amendment was not effective. The amendment came 20 days later and for which the applicant cannot be held responsible as held by the Hon'ble Apex Court in State of Tamil Nadu vs. J.T.T.I. reported in 1991 (2) UJSC 162 as "The Court cannot direct any party to disobey any statute even on humanitarian grounds." It is to be noted at this point that at that point of time on 11.05.2007 interference from applicant would have been unreasonable interdiction. The Hon'ble Apex Court in Shrilekha vs. State of Uttar Pradesh reported in (1991) 1 SCC 212 held "where an administrative action is prima facie unreasonable because there is no discernable principle to justify it, the burden is shifted to the State to show that the impugned decision is an informed action, and in such a case, if 10 OA No. 170/00404/2018/CAT/BANGALORE the reasons are not recorded, decisions will be struck down as violative of Article 14 of the Constitution."
10. The applicant submits that the action of the respondents in this case is an abuse of the process as the action against Shri Hari Rao emanated from his complaint. He may be deemed as coming under the protection of the Whistle Blowers Protection Act and the judgment of the Hon'ble Apex Court in Indirect Tax Practitioners Association Vs. R.K. Jain reported in (2010) 8 SCC 281.
11. The applicant challenges this charge memo raised after 10 years on the ground of delay also.
12. The respondents have filed a detailed reply and an argument note and produced Annexure-R1 as a chronology of events to justify the events which took place after 11.05.2007 to the date of charge memo. It is noted that, when examining the question of Shri Hari Rao, the CVC on their own also recommended the examination of the role of Additional CIT, the immediate administrative superior of Shri S.S. Hari Rao on 03.12.2015. The respondents submits that because of this only a charge memo seems to be issued against the applicant. We have held in many a case that neither the CVC nor the CBI nor the UPSC have any right to recommend disciplinary action against any government employee but it is the absolute right of the Disciplinary Authority alone. 11 OA No.
170/00404/2018/CAT/BANGALORE
13. The respondents would say that a minor penalty charge sheet had been imposed on the applicant for the failure of the applicant to exercise proper, timely and effective administrative control in monitoring the quasi-judicial work of Shri Hari Rao. But then, as the law stood on 11.05.2007, applicant could not have exercised any power over Shri S.S. Hari Rao as the CBDT circulars came only on 01.06.2007, i.e., 20 days later. Even otherwise also, the CBDT resting power under 153 A could not have directed administrative control over quasi- judicial actions as held by the Hon'ble Apex Court in Dhawan's case mentioned later on.
14. The respondents contends that the Whistle Blower Protection Act will not lie for failure of supervisory action but then Annexure-A2 seems, on a plain reading, coming within the ambit of the said Act and the Hon'ble Apex Court order regarding Whistle Blowers. The question is not whether Shri Hari Rao had done correctly or not. The applicant perceived on the basis of the CBDT instructions that he could have also a role to play in the determination and when Shri Hari Rao declined this invitation complained about it to all the concerned officials. The explanation of the respondents is that they had not intended to take any action against the applicant but then while examining Shri Hari Rao's case, the CVC had made a recommendation to examine the role of the 12 OA No. 170/00404/2018/CAT/BANGALORE applicant also as he was the immediate superior officer. An extension of this rationale would be that if the clerk had committed an infraction the Chief Commissioner also must be held responsible. It seems to be absurd in the extreme.
15. The respondents denies that there is no question of any desire to wreck vengeance and deprive the applicant of his legitimate promotion for the past 8 years as the respondents had been postponing the same on one pretext or other is baseless. They would say that the present pendency of disciplinary proceedings were for administrative failure in not taking appropriate action against Shri S.S. Hari Rao. They would rely on Section 144A and stipulate that applicant could have interfered on the basis of this. But then, at that point of time, these rules and the guidelines were not in force.
16. But even otherwise these guidelines have no force of law as no administratively superior officer can interfere in the exercise of judicial discretion by a quasi-judicial authority as has been held by the Hon'ble Apex Court in several cases.
17. Since the matter has been put up before us, we had held a random search of acts and rules to find out the extent of quasi judicial functioning available under various acts and rules. We found that about 30 to 40% of litigation in the country is handled by quasi judicial authorities under 13 OA No. 170/00404/2018/CAT/BANGALORE one statute or other. Therefore, the position of a quasi judicial officer is of nodal nature in the justice delivery system. If the department under which he is working is in a position to exert any sort of control over his working it will have an impact on his mental make up and impartiality. The quasi judicial officer is enjoined and called upon to and pass judgment in respect of the matters in which his department is deeply interested. But yet he is called upon to deliver judgments passed by depending on his conscious knowledge of law and based on his ability and without any bias. If any control is to be exercised by superior officers of the department over the quasi judicial officer, it is so perverse that it will defeat the whole structure of quasi judicial determination and in such a situation a quasi judicial determination becomes an adjunct to a department decision and therefore, detrimental to public interest.
18. The independence of judiciary requires protection to judges for the decision taken by him, so it may probably be construed that a judgment of a judicial officer whether if he be right or not is the issue but the rightness and wrongness of a judicial order has to be contested only through the hierarchy provided throughout the judicial system and not by collateral means. Such a rule providing for collateral control under whatever guise will reduce the independence of judiciary and render quasi judicial activity to the 14 OA No. 170/00404/2018/CAT/BANGALORE level of being only an exercise in futility by already taken departmental decision which he will be called upon to blindly support and this will defeat the system of quasi judicial determination.
19. We have carefully examined the articles of charges against the applicant the articles of charge is absolutely in the realm of judicial determination. If the department is aggrieved by judicial determination the only way available to them is to approach the appellate or revisional authority as the case may be. They cannot, definitely hold a disciplinary enquiry against the applicant for a decision he had taken in the course of his working as a quasi judicial officer for a factor within the scope of such judicial determination. Since requirement of independence of quasi judicial forums over shadow smaller lacunae like this in greater public interest. The respondents would submit that the assessing officer should be guided by investigating officer, but this averment create dangerous precedents and tantamount to a Magistrate being guided by a police officer in the discharge of his duty and that it can only be hoped that the respondents said so without understanding the gravity of it, it is important that process and procedures of a quasi judicial authority are also protected.
20. The quasi judicial authorities are created within the department itself to ensure that a process of determination which is 15 OA No. 170/00404/2018/CAT/BANGALORE balanced and unbiased is made available. The process and procedures of a judicial officer are also made and organised to ensure the independence of a judicial officer and unless this cardinal factum is maintained the quasi judicial authority lose its relevance and reverence in the public mind. Therefore, in the larger aspect it is in greater judicial importance to work out a method by which independence and integrity are matched. The volume of litigation in the country as handled by quasi judicial authorities points out the need to afford them also the same protection given to Judges; in greater and larger public interest. This exercise of impartiality is to ensure justice to the assessee also.
21. The Hon'ble Supreme Court in UNION OF INDIA & OTHERS VS. K.K.DHAWAN (1993) 2 SCC 56, in para 28 & 29 had come to the following conclusion on this aspect;
"28. Certainly, therefore, the officer who exercises judicial or quasi judicial powers acts negligently or recklessly or in order to confer undue favour on a person he is not acting as a Judge, Accordingly, the contention of the respondent has to be rejected. It is important to bear in mind that in the present case, we are not concerned with the correctness or legality of the decision of the respondent but the conduct of the respondent in discharge of his duties as an officer. The legality of the orders with reference to the nine assessment may be questioned in appeal or revision under the Act. But we have no doubt in our mind that the Government is not precluded from taking the disciplinary action and it can be taken in the following cases:
(i) Where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty;16 OA No.
170/00404/2018/CAT/BANGALORE
(ii) if there is prima facie material to show recklessness or misconduct in the discharge of his duty;
(iii) if he has acted in a manner which is unbecoming of a Government servant;
(iv) if he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers;
(v) if he had acted in order to unduly favour a party;
(vi) if he had been actuated by corrupt motive, however small the bribe may be because Lord Coke said long ago "though the bribe may be small, yet the fault is great"
"29. The instances above catalogued are not exhaustive. However, we may add that for a mere technical violation or merely because the order is wrong and the action not falling under the above enumerated instances, disciplinary action is not warranted. Here, we may utter a word of caution. Each case will depend upon the facts and no absolute rule can be postulated."
And, therefore, the respondents would submit that they had a right to initiate disciplinary action against the applicant even though he was a quasi judicial officer. But we heard the respondent specifically and had examined the pleadings only to find that these factors are not involved.
22. We were taken through the decision of the Hon'ble Supreme Court in V.D.TRIVEDI Vs. UNION OF INDIA 1993 (2) SCC 55, UNION OF INDIA Vs. R.K.DESAI (1993) 2 SCC 49 and UNION OF INDIA VS. A.N.SAXENA 1(992) 3 SCC 124. The respondents submitted that it is not the degree of infraction which is material and it should be the decision of the authorities. But then this appears to be a case of no evidence at all in view of the Hon'ble Supreme Court judgment. 17 OA No.
170/00404/2018/CAT/BANGALORE Therefore at best this only a tangential attack against the Hon'ble Supreme Court judgment. This is true even if we ignore the question of quasi judicial functioning and judicial independence.
23. "When we talk of negligence in a quasi judicial adjudication, it is not negligence perceived as carelessness or inadvertence or omission but as culpable negligence." This is how this court in STATE OF PUNJAB AND OTHERS Vs. RAM SINGH Ex-Constable (1992) 4 SCC 54 interpreted 'misconduct' not coming within the purview of mere error in judgment, carelessness or negligence in performance of the duty. In the case of K.K.Dhawan (1993) 2 SCC 56, the allegation was of conferring undue favour upon the assessees. It was not a case of negligence as such. In Upendra Singh's case (1994) 3 SCC 357, the charge was that he gave illegal and improper directions to the assessing officer in order to unduly favour the assessee. Case of K.S.Swaminathan (1996) 11 SCC 498, was not where the respondent was acting in any quasi judicial capacity. This Court said that at the stage of framing of the charge the statement of facts and the charge-sheet supplied are required to be looked into by the Court to see whether they support the charge of the alleged misconduct. In M.S.Bindra's case (1998) 7 SCC 310 where the appellant was compulsorily retired this court said that judicial scrutiny of an order imposing premature compulsory retirement is permissible if the 18 OA No. 170/00404/2018/CAT/BANGALORE order is arbitrary or mala fide or based on no evidence. Again in the case of Madan Mohan Choudhary (1999) 3 SCC 396, which was also a case of compulsory retirement this court said that there should exist material on record to reasonably form an opinion that compulsory retirement of the officer was in public interest. In K.N.Rmamaurthy's case (1997) 7 SCC 101, it was certainly a case of culpable negligence. One of the charges was that the officer had failed to safeguard Government revenue. In Hindustan steel Ltd.'s case (AIR 1970 SC 253), it was said that the penalty will not also be imposed merely because it is lawful so to do.
24. When penalty is not levied, the assessee certainly benefits. But it cannot be said that by not levying the penalty the officer has favoured the assessee or shown undue favour to him. There has to be some basis for the disciplinary authority to reach such a conclusion even prima facie. Record in the present case does not show if the disciplinary authority had any information within its possession from where it could form an opinion that the appellant showed 'favour' to the assessee by not adding on to the assessment. He may have wrongly exercised his jurisdiction. But that wrong can be corrected in appeal. That cannot always form basis for initiating disciplinary proceedings for an officer while he is acting as quasi proceedings for an officer while he is acting as quasi judicial authority. It 19 OA No. 170/00404/2018/CAT/BANGALORE must be kept in mind that being a quasi judicial authority, he is always subject to judicial supervision in appeal.
25. Initiation of disciplinary proceedings against an officer cannot take place on an information which is vague or indefinite. Suspicion has no role to play in such matter. There must exist reasonable basis for the disciplinary authority to proceed against the delinquent officer. Merely because original assessment was approved and the CIT in the exercise of its power directed filing of appeal against that order in the Appellate Tribunal could not be enough to proceed against the appellant. There is no other instance to show that in any similar case the appellant invariably imposed penalty. But the Tribunals order has closed the chapter for the respondents especially since no appeal was filed.
26. If, every error of law were to constitute a charge of misconduct, it would impinge upon the independent functioning of quasi judicial officers like the applicant. Since in sum and substance misconduct is sought to be inferred by the appellant having committed an error of law, the charge-sheet on the face of it does not proceed on any legal premise rendering it liable to be quashed. In other words, to maintain any charge-sheet against a quasi judicial authority something more has to be alleged than a mere mistake of law, e.g., in the nature of some extraneous consideration influencing the quasi judicial order. Since nothing of the sort is alleged herein the 20 OA No. 170/00404/2018/CAT/BANGALORE impugned charge-sheet is rendered illegal. The charge-sheet, if sustained, will thus impinge upon the confidence and independent functioning of a quasi judicial authority. The entire system of administrative adjudication where under quasi judicial powers are conferred on administrative authorities, would fall into disrepute if officers performing such functions are inhibited in performing their functions without fear or favour because of the constant threat of disciplinary proceedings.
27. Considering the whole aspect of the matter, we are of the view that it was not a case for initiation of any disciplinary proceedings against the appellant. Charge of misconduct against him was not proper. It has to be quashed" as otherwise it will be an abuse of powers.
28. The counsel for the applicant took us through the judgment of Hon'ble Supreme Court in P.C.JOSHI VS. STATE OF U.P. AND OTHERS dated 08.08.2001, which was available in the internet at Https://JUDIS.NIC.IN. After examining the crux of the matter the Hon'ble Supreme Court held as under:
" The test to be adopted in such cases is as stated by this Court in the cases of Union of India &Ors., Vs. A.N.Saxena, 1992 (3) SCC 124 and Union of India &Anr., Vs. K.K.Dhawan, 1993 (2) SCC 56. In K.K.Dhawan case (supra), this Court indicated the basis upon which a disciplinary action can be initiated in respect of a judicial or a quasi-judicial action as follows:
Where the Officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty;21 OA No.
170/00404/2018/CAT/BANGALORE
(i) Where the judicial officer has conducted in a manner as would reflect on his reputation or integrity or good faith or devotion to duty;
(ii) That there is prima facie material to show recklessness or misconduct in the discharge of his duty;
(iii) That if he has acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers;
(iv) That if he had acted in order to unduly
favour a party;
(v) That if he had been actuated by corrupt
motive.
Dealing with a matter of similar nature in Ishwar Chand Jain Vs. High Court of Punjab & Haryana &Anr., 1968 Supp. (1) SCR 396, the following observations were made by this Court:
"....While exercising control over the subordinate judiciary under the Constitution, the High Court is under a constitutional obligation to guide and protect judicial officers. An honest, strict judicial officer is likely to have adversaries. If complaints are entertained on trifling matters relating to judicial officers which may have been upheld by the High Court on the judicial side, and if the judicial officers are under constant threat of complaints and enquiry on trifling matters, and if the High Court encourages anonymous complaints, no judicial officer would feel secure, and it would be difficult for him to discharge his duties in an honest and independent manner. An independent and honest judiciary is a sine qua non for the Rule of law. It is imperative that the High Court should take steps to protect its honest judicial officers by ignoring ill-conceived or motivated complaints made by unscrupulous lawyers and litigants. [p.409]"
29. In A.K.KRAIPAK VS. UNION OF INDIA reported in AIR 1970 SC 150 the Hon'ble Supreme Court had held:
"The dividing line between an administrative power and a quasi-judicial power is quite thin and is 22 OA No. 170/00404/2018/CAT/BANGALORE gradually being obliterated. For determining whether a power or a quasi-judicial power one has to look to the nature of the power conferred, the persons or person on whom it is conferred, the framework of the law conferring that power, the consequences ensuring from exercise of that power and the manner in which that power is expected to be exercised. Under the Constitution of India, the rule of law pervades over the entire field of administration. Every organ of the State under the Constitution is regulated and controlled by the rule of law. In a Welfare State like ours it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of the rule of law would lose its vitality if the instrument elites of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirements of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily and capriciously. The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate, if not ensure a just and fair decision. In recent years the concept of quasi- judicial power has been undergoing a radical change. What was considered as an administrative power some years back is now being considered as quasi-judicial power. With the increase of the power of the administrative bodies it has become necessary to provide guidelines for the just exercise of their power. To prevent the abuse of that power and to see that it does not become a new depositism Courts are gradually evolving the principles to be observed while exercising such powers. In matters like these public good is not advanced by a rigid adherence to precedent. New problems call for new solution. It is neither possible nor desirable to fix the limits of a quasi judicial power".
30. In ZUNJARRAO BHIKAJI NAGARKAR Vs. UNION OF INDIA, AIR 1999 SC 2881, The Hon'ble Supreme Court had held: 23 OA No.
170/00404/2018/CAT/BANGALORE "If every error of law were to constitute a charge of misconduct, it would impinge upon the independent functioning of quasi-judicial officers, like the appellant. Since in sum and substance misconduct is sought to be inferred by the appellant having committed an error of law, the charge- sheet on the face of it does not proceed on any legal premise rendering it liable to be quashed. In other words, to maintain any charge-sheet against a quasi-judicial authority something more has to be alleged than a mere mistake of law, e.g. in the nature of some extraneous consideration influencing the quasi-judicial order. Since nothing of the sort is alleged herein the impugned charge-sheet is rendered illegal. The charge-sheet, if sustained, will thus impinge upon the confidence and independent functioning of a quasi judicial authority. The entire system of administrative adjudication where under quasi-judicial powers are conferred on administrative authorities would fall into disrepute if officers performing such functions are inhibited in performing their functions without fear or favour because of the constant threat of disciplinary proceedings".
31. But the respondents' counsel would say even if this is so, once the CVC had granted permission, this is a matter fit for continuation of the charge sheet. He would say that the Hon'ble Apex Court in the case of Union of India and Others Vs. K.K.Dawan vide order dated 27.01.1993 had laid down these conditions to initiate the disciplinary proceedings while discharging the quasi judicial function. But the counsel for applicant submits that none of the factors in Dawan's case is admittedly not applicable here.
32. Hon'ble Apex Court in the case of Union of India and Others Vs. K.K.Dhawan vide order dated 27.01.1993 has laid down following six 24 OA No. 170/00404/2018/CAT/BANGALORE conditions to initiate disciplinary proceedings against the authority while discharging quasi-judicial functions. Therefore with the help of both the counsel we have examined these things
(i) Where the Officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty;
(ii) If there is prima facie material to show recklessness or misconduct in the discharge of his duty;
(iii) If he has acted in a manner which is unbecoming of a government servant;
(iv) If he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers;
(v) If he had acted in order to unduly favour a party;
(vi) If he had been actuated by corrupt motive however, small the bribe may be.
33. The learned counsel for the applicant relies on P.V.MAHADEVAN Vs. M.D.TAMIL NADU HOUSING BOARD, CHENNAI where the Hon'ble Apex Court had held that " there is a duty to avoid anyway the procedure for a delay of 10 years. The Hon'ble Apex court had held that this kind of impropriety should be avoided but also in public interest and also in the interest of inspiring confidence in the minds of government employees".
34. The Hon'ble Apex Court there upon held that the applicant will be entitled to all the retiral benefits and it should be paid within a period of 3 months. In the case of STATE OF MADHYA PRADESH VS. BANSILAL SINGH AND ANOTHER Hon'ble Apex Court had held that the delay of 12 years in the disciplinary proceedings were unfair and 25 OA No. 170/00404/2018/CAT/BANGALORE therefore should not permit the departmental enquiry to proceed.
35. The learned counsel relies on the decision of the Hon'ble Apex Court in STATE OF MADHYA PRADESH VS. RADHAKRISHNAN 1998 (4) SCC 154 and the Hon'ble Apex Court had held against the generalisation of charges without attributing any specific positive input against the delinquent employee. The learned counsel for the applicant would submit that here also there is no specific input. The learned counsel relies on the COMMISSIONER OF INCOME TAX VS. GREEN WORLD CORPORATION wherein the Hon'ble Apex Court had held that "the Board is not a competent authority to give direction regarding the exercise of any judicial powers by its subordinates.
1.The question of delay:
There is a delay of about 10 years in initiating the charge against the applicant. Hon'ble Apex Court had time and again held that this kind of unexplained delay defects dynamic jurisprudence and which diminishes the Rule of law. It also denies the opportunity of defence by passage of time for any person accused to recall as it was and to provide an equitable defence. Therefore it has to be held that as this is unexplained, and being an unequitable delay it vitiate the charges.
36. Relating to Wednesbury rules of abuse of power in administrative discretion in Associated Provincial Picture Houses Limited Vs. Wednesbury Corporation reported in (1948) 1 King's Bench Page 223 26 OA No. 170/00404/2018/CAT/BANGALORE had held "The Court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account or conversely have refused to take into account or neglected to take into account matters which they ought to take into account." In this case, the respondents had no responsibility or authority to take into account the CVC's recommendations. The respondents had not taken into account Annexure-A2 letter. The respondents had not taken into account the fact of Dhawan's judgment of the Hon'ble Apex Court as its elements are conspicuously absent in this case and, therefore, they have erred greatly.
37. Therefore, we hold that the charges against the applicant will not lie for the reason:
1) It is an abuse of the process of law
2) There is no responsibility on the part of the Disciplinary Authority to accept the recommendation of the CVC in the manner stated
3) At the point of juncture, there was no possibility of interference statutorily by the applicant
4) Even otherwise, an administrative superior cannot interfere in quasi-judicial function of a subordinate.27 OA No.
170/00404/2018/CAT/BANGALORE
5) The only opportunity available to the department is to challenge in the judicial forums provided under the Act.
6) They cannot take a corollary or surreptitious stand in this regard as it will otherwise undermine independence of judiciary.
Therefore, the chargesheet and all the consequences have to be quashed.
38. But then what are to be consequences of such quashment. The Hon'ble Apex Court in Union of India and Another Vs. Hemraj Singh Chauhan and others reported in 2010 (4) SCC 290 held that:
"A.K. GANGULY, J- Leave granted.In SLP (C) Nos.6758-6759/2009, Union of India and the Secretary, Union Public Service Commission are in appeal impugning the judgment and order dated 14.11.2008 delivered by the Delhi High Court on the writ petition filed by Hemraj Singh Chauhan and Ramnawal Singh, the respondents herein.
2. The respondents are members of the State Civil Service (S.C.S.) of the State of Uttar Pradesh and according to them completed eight years of service on 23.07.85 and 4.6.86 respectively. The contention of the respondents is that in terms of Regulation 5(3) of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955, a member of the S.C.S., who has attained the age of 54 years on the 1st day of January of the year in which the Committee meets, shall be considered by the Committee, provided he was eligible for such consideration on the 1st day of the year or of any of the years immediately preceding the year in which such meeting is held, but could not be considered as no meeting of the Committee was held during such preceding year or years.28 OA No.
170/00404/2018/CAT/BANGALORE
3. Those regulations have been framed in exercise of power under Sub-Rule 1 of Rule 8 of Indian Administrative Service Recruitment Rules, 1954 and in consultation with the State Government and the Union Public Service Commission.
4. Regulation 5 (1) of the said Regulation provides that such Committee shall ordinarily meet every year and prepare a list of such members of the S.C.S. as are held to be suitable for promotion to the service. The number of members of the said civil services to be included in this list shall be determined by the Central Government in consultation with the State Government concerned but shall not exceed the number of substantive vacancies in the year in which such meeting is held.
5. It may be mentioned in this connection that as a result of bifurcation of the State of Uttar Pradesh as a result of creation of the State of Uttaranchal in terms of the State Reorganization Act, namely Uttar Pradesh State Reorganization Act 2000, two notifications were issued on 21.10.2000. The first was issued under Section 3(1) of the All India Services Act, 1951 read with Section 72 (2) and (3) of the Reorganization Act and Rule 4 (2) of the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1956 (hereinafter referred to as the "Cadre Rule").
6. Thus, the Central Government constituted for the State of Uttaranchal an Indian Administrative Service Cadre with effect from 1.11.2000. On 21.10.2000 another notification was issued fixing the cadre strength of State of Uttar Pradesh thereby determining the number of senior posts in the State of Uttar Pradesh as 253.
7. The case of the appellants is that the next cadre review for the State of Uttar Pradesh fell due on 30th April, 2003. To that effect aletter dated 23.1.2003 was written by the Additional Secretary in the Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions, Government of India to the Chief Secretary, Government of Uttar Pradesh.
8. The further case of the appellants is that several reminders were sent on 5th March, 3rd September, 17th September and 8th December, 2003 but unfortunately the Government of Uttar Pradesh did not respond. Then a further reminder was sent by the Government of India stating therein that four requests were made for the cadre review of the I.A.S. cadre of Uttar Pradesh but no response was 29 OA No. 170/00404/2018/CAT/BANGALORE received from the Government of Uttar Pradesh. In the said letter the Government of India wanted suitable direction from the concerned officials so that they can furnish the cadre review proposal by 28.2.04. Unfortunately, there was no response and thereafter subsequent reminders were also sent by the Government of India on 14.06.2004/17.06.2004 and 8.10.2004.
9. Ultimately, a proposal was received from the Government of Uttar Pradesh only in the month of January 2005 and immediately preliminary meeting was fixed on 21.02.2005. Thereafter, a cadre review meeting was held under the Chairmanship of the Cabinet Secretary on 20.04.2005 and the Minutes duly signed by the Chief Secretary, Government of Uttar Pradesh were received by the appellants on 27th June, 2005. After approval was given to the said Minutes, notification was issued on 25.08.2005 re-fixing the cadre strength in the State of Uttar Pradesh.
10. Challenging the said notification, the respondents herein approached Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as C.A.T.) by filing two O.As, namely, O.A. No.1097/2006 and O.A. No.1137/2006 praying for quashing of the said notification. The respondents also prayed for setting aside the order dated 1.2.2006 whereby vacancies were increased as a result of the said cadre review adding to the then existing vacancies for the year 2006.
11. In those O.As the substance of the contention of the respondents was that the last cadre review of the I.A.S. in Uttar Pradesh cadre was conducted in 1998 and the next cadre review was therefore due in April 2003. As such it was contended that the cadre review which was conducted in August 2005 should have been given effect from April 2003 so that the respondents could be considered for promotion against the promotion quota.
12. The stand of the State of Uttar Pradesh before C.A.T. was that with the issuance of notification issued by the Department of Personnel and Training on 21.10.2000 bifurcating cadre of undivided Uttar Pradesh to I.A.S. Uttar Pradesh and I.A.S. Uttaranchal upon the Uttar Pradesh Reorganization Act, cadre review has already taken place and as such the next review was due in 2005 only.The stand of the appellants both before the C.A.T. and before the High Court was that the cadre review was due in 2003.
13. However, the C.A.T. after hearing the parties upheld the contention of the State of Uttar Pradesh and held that the cadre 30 OA No. 170/00404/2018/CAT/BANGALORE review carried out in 2005 cannot be given retrospective effect. The Tribunal dismissed O.A.No.1097/06 and partially allowed O.A. No.1137/06, inter alia, directing the respondents to convene the meeting of D.P.C. Selection Committee to fill- up the posts which were not filled up in the year 2001, 2002 and 2004 and to consider all eligible S.C.S. Officers in the zone of consideration including the officers who were put in the select list of those years but could not be appointed in the absence of integrity certificate.
14. However, the respondents being aggrieved by the judgment of the C.A.T. filed a writ petition before the Hon'ble High Court on 18.12.2006 contending therein that the cadre review of the I.A.S. of Uttar Pradesh cadre was due in 2003 and was delayed by the State of Uttar Pradesh as a result of which some of the S.C.S. Officers were deprived of their promotion to the I.A.S. Their specific stand in the writ petition was if the increased vacancies were available in 2004 as a result of the cadre review in 2003, they could have been promoted to I.A.S.
15. However, before the High Court the stand of the Central Government was that the cadre review of the I.A.S. of Uttar Pradesh was due in 2003 but unfortunately it was held in 2005 when State of Uttar Pradesh had sent its proposal. Such review was made effective from 25.8.2005 when the revised cadre strength of the I.A.S. cadre of Uttar Pradesh was notified in the official Gazette in terms of the statutory provisions. The further stand of the appellants was that the cadre review undertaken in 2005 cannot be given retrospective effect.
16. However, before the High Court the stand of the Uttar Pradesh Government was slightly changed and it filed a `better affidavit' and took the stand that they have no objection to any direction for exercise of cadre review to be undertaken with reference of the vacancy position as on 1.1.2004.
17. The High Court after hearing the parties was pleased to set aside the judgment of C.A.T. dated 15.12.2006 and the notifications dated 1.2.2006and 25.8.2005 were set aside. The State Government and the Central Government were directed that the cadre review exercise should be undertaken as if it was taking place on 30th April, 2003 with reference to the vacancy position as on 01.01. 2004.
18. In order to resolve the controversy in this case, the relevant statutory provisions may be noted. The respondents being S.C.S. Officers, are seeking promotion to I.A.S. in terms of Rule 4(1)(b) of the relevant recruitment rules. Rule 4(1)(b) of the Indian 31 OA No. 170/00404/2018/CAT/BANGALORE Administrative Service (Recruitment) Rules, 1954 is set out:-
"4. Method of recruitment of the Service (1) * * *
(b) By promotion of a substantive member of a State Civil Service;"
19. In tune with the said method of recruitment, substantive provisions have been made under Rule 8 for recruitment by promotion. Rule 8(1) of the Recruitment Rules in this connection is set out below:-
"8. Recruitment by promotion or selection for appointment to State and Joint Cadre:-(1) The Central Government may, on the recommendations of the State Government concerned and in consultation with the Commission and in accordance with such regulations as the Central Government may, after consultation with the State Governments and the Commission, from time to time, make, recruit to the Service persons by promotion from amongst the substantive members of a State Civil Service."
20. Under Rule 9, the number of persons to be recruited under Rule 8 has been specified, but in this case we are not concerned with that controversy.
21. The other regulation which is relevant in this case is Rule 5 of Indian Administrative Service(Appointment by Promotion) Regulations, 1955 (hereinafter referred to as, `the said regulation'). These regulations have been referred to in the earlier part of the judgment. Rule 5(3) of the said regulation, relevant for the purpose of this case, is set out below:-
"5 (3) The Committee shall not consider the cases of the members of the State Civil Service who have attained the age of 54 years on the first day of January of the year in which it meets:
Provided that a member of the State Civil Service whose name appears in the Select List prepared for the earlier year before the date of the meeting of the Committee and 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 Civil Service who has attained the age of fifty-four years on the first day of January of 32 OA No. 170/00404/2018/CAT/BANGALORE the year in which the Committee meets 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 preceding the year in which such meeting is held but could not be considered as no meeting of the Committee was held during such preceding year or years."
22. Another regulation relevant in this connection is Indian Administrative Service (Cadre) Rules, 1954 (hereinafter referred to as, `the Cadre Rules'). Under Rule 4 of the said Cadre Rules, the strength and composition of the Cadres constituted under Rule 3 shall be determined by regulation made by the Central Government in consultation with the State Government and until such regulations are made, shall be as in force immediately before the commencement of those rules.
23. Rule 4(2) has come up for interpretation in this case and to appreciate its true contents, the said Rule 4(2) is set out below:-
"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 years and with the approval of the Central Government for a further period not exceeding three years, to a Sate or Joint Cadre one or more posts carrying duties or responsibilities of a like nature to cadre posts."
24. The main controversy in this case is, whether re-examination on the strength and composition of cadre in the State of Uttar Pradesh had taken place in accordance with the mandate of Rule 4 sub-rule (2).
25. It appears clearly that the authorities who are under a statutory mandate to re-examine the strength and composition of cadre are the Central Government and the concerned State Government. It can be noted in this connection that word `ordinarily' in Rule 4(2) has come by way of amendment with effect from 1.3.1995 along with said amendment has also come the amendment of 5 years, previously it was 3 years.
33 OA No.
170/00404/2018/CAT/BANGALORE
26. From the admitted facts of this case, it is clear that Central Government had always thought that cadre review in terms of Rule 4(2) of the cadre Rules was due in 2003. In several letters written by the Central Government, it has been repeatedly urged that the cadre review of I.A.S. cadre of Uttar Pradesh is due on 30th April, 2003. The letter dated 23/24 January, 2003 written to that effect on behalf of the appellant to the Chief Secretary, Government of Uttar Pradesh, Lucknow is set out below:-
"Dear Shri Bagga, The cadre review of IAS cadre of Uttar Pradesh is due on 30.04.2003. The Supreme Court in 613/1994 (TANSOA vs. Union of India) has stated that the Central Government has the primary responsibility of making cadre reviews and to consider whether it is necessary or not to encadre long existing ex- cadre posts. Delay in conducting the cadre review results in avoidable litigation as officers of the State Civil Service approach the Courts that the delay has stalled their promotional avenues. It is important that the cadre reviews are held on time.
2. I shall, therefore, be grateful if you could look into the matter personally and instruct the concerned officials to sponsor the review proposals in the prescribed proforma, after taking into consideration the requirement of the State Government by 28th February, 2003 to this Department for processing the case further. With regards"
27. In various subsequent letters, namely dated 5th March, 2003, 3rd September, 2003, 17th September, 2003, 8th December, 2003, the Central Government reiterated its stand that cadre review has to be done by 2003. Admittedly, the Central Government took the aforesaid stand in view of the law laid down by this Court in the case of T.N. Administrative Service Officers Association and another v. Union of India and others, reported in (2000) 5 SCC 728.
28. It cannot be disputed that the Central Government took the aforesaid stand in view of its statutory responsibility of initiating cadre review as a cadre controlling authority. In fact in the letter dated 29th August, 2005 by Neera Yadav, on behalf of the State of Uttar Pradesh, it has been categorically admitted in paragraph 3 of the said letter that the previous cadre review was done in 1998. The stand is as follows:-
"Thus, the cadre review for alteration was to be done under Rule 4(2) of the Indian Administrative Service Cadre Rules, 1954 as on 34 OA No. 170/00404/2018/CAT/BANGALORE 30.04.2003. The Department of Personal & Training, through D.O. letter No.11031/5/2003- AIS-II dated 23.01.2003 requested that State Government to sponsor the review proposal on the prescribed proforma as cadre review as cadre review of Indian Administrative Service, Uttar Pradesh cadre was due on 30.04.2003."
29. In the affidavit of the appellant, filed before Central Administrative Tribunal, the following stand has been categorically taken:-
"It is submitted that the last cadre strength of the IAS cadre of unified cadre of Uttar Pradesh was notified on 30.04.1998. Therefore, as per Rule 4(2) of the IAS (Cadre) Rules, 1954, the next review was due on 30.4.2003."
It was also stated that the reference by the State Government to order dated 23.9.2000 was not one of cadre review. It was a reference of the State Government in connection with the bifurcation of Uttar Pradesh and Uttaranchal, pursuant to Uttar Pradesh Reorganization Act, 2000. It was admitted that the I.A.S cadre of Uttaranchal was constituted later i.e. on 21.10.2000.
30. In so far as the State of U.P. was concerned, the State filed an application for a `better affidavit' before the High Court and in paragraphs 4 and 5 of the said application the State Government reiterated the reasons for filing a `better affidavit'. In those paragraphs, the stand of the Central Government was reiterated, namely, that the last cadre review was done in 1998 and the subsequent cadre review under Rule 4(2) of the Cadre Rules was due on 30.04.2003.
31. In the `better affidavit', which was filed on behalf of the State of Uttar Pradesh before the High Court, in paragraph 8, the stand taken is as follows:-
"..In this view of the matter, since the last "Quinquenial Cadre Review" of the IAS Cadre was held on 30.4.1998, the next "Quinquenial Cadre Review" of the IAS cadre became due on 30.4.2003 as stated by the Cadre Controlling Authority in para 9 of its counter affidavit."
32. It is thus clear that both the authorities under Rule 4(2) of the Cadre Rules accepted on principle that cadre review in Uttar Pradesh was due in 2003.
35 OA No.
170/00404/2018/CAT/BANGALORE
33. Appearing for the appellants the learned counsel urged that the judgment of the High Court in so far as it seeks to give a retrospective effect to the cadre review is bad inasmuch as the stand of the appellants is that the Notification dated 25.8.2005 makes it explicitly clear that the same comes into force on the date of its publication in the Official Gazette. Relying on the said Notification, it has been urged that since the same has been made explicitly prospective and especially when the Rule in question, namely, Rule 4(2) of the Cadre Rules is expressly prospective in nature, the cadre review exercise cannot be made retrospective. This seems to be the only bone of contention on the part of the appellants.
34. However, from the discussion made hereinbefore, the following things are clear:
(a) Both the appellants and the State Government in accordance with their stand in the subsequent affidavit accepted that Cadre Review in the State of U.P. was made in 1998 and the next Cadre Review in that State was due in 2003;
(b) Neither the appellants nor the State Government has given any plausible explanation justifying the delay in Cadre review;
(c) From the materials on record it is clear that the appellant as the Cadre Controlling authority repeatedly urged the State Government to initiate the review by several letters referred to hereinabove;
(d) The only reason for the delay in review, in our opinion, is that there was total in-action on the part of the Uttar Pradesh Government and lackadaisical attitude in discharging its statutory responsibility.
35. The Court must keep in mind the Constitutional obligation of both the appellants/Central Government as also the State Government. Both the Central Government and the State Government are to act as model employers, which is consistent with their role in a Welfare State.
36. It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution.
37. In The Government Branch Press and Anr. vs. D.B. Belliappa - 36 OA No.
170/00404/2018/CAT/BANGALORE (1979) 1 SCC 477, a three judge Bench of this Court in relation to service dispute, may be in a different context, held that the essence of guarantee epitomized under Articles 14 and 16 is "fairness founded on reason" (See SCC p. 486, para 24).
38. 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 considered when it is due for such consideration and delay has made themineligible for such consideration. Now the question which is weighing on the conscience of this Court is how to fairly resolve this controversy.
39. Learned counsel for the appellants has also urged that the statutory mandate of a cadre review exercise every five years is qualified by the expression `ordinarily'. So if it has not been done within five years that does not amount to a failure of exercise of a statutory duty on the part of the authority contemplated under the Rule.
40. This Court is not very much impressed with the aforesaid contention. The word `ordinarily' must be given its ordinary meaning. While construing the word the Court must not be oblivious of the context in 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 to 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 - (2001) 1 SCC 315, at page 319 (para 6)]. The word `ordinarily' would convey the idea of something which is done `normally' [Krishan Gopal vs. Shri Prakashchandra and others - (1974) 1 SCC 128, 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 the aforesaid interpretative exercise, we hold 37 OA No. 170/00404/2018/CAT/BANGALORE that the statutory duty which is cast on the State Government and the Central Government to undertake the cadre review exercise every five years is ordinarily mandatory subject to exceptions which may be justified in the facts of a given case. Surely, lethargy, in-action, an absence of a sense of responsibility cannot fall within category of just exceptions.
43. In the facts of this case neither the appellants nor the State of U.P. has justified its action of not undertaking the exercise within the statutory time frame on any acceptable ground. Therefore, the delayed exercise cannot be justified within the meaning of `ordinarily' in the facts of this case. In the facts of the case, therefore, the Court holds that there was failure on the part of the authorities in carrying out the timely exercise of cadre review.
44. In a somewhat similar situation, this Court in Union of India and Ors. vs. Vipinchandra Hiralal Shah - (1996) 6 SCC 721, while construing Regulation 5 of the I.A.S. (Appointment by Promotion) Regulations, 1955 held that the insertion of the word `ordinarily' does not alter the intendment underlying the provision. This Court in that case was considering the provision of Clause (1) of Regulation 5 of the IPS (Appointment by Promotion) Regulations along with other provisions of Regulation 5. The interpretation which this Court gave to the aforesaid two Regulations was that the Selection Committee shall meet at an interval not exceeding one year and prepare a list of members who are eligible for promotion under the list. The Court held that this was mandatory in nature.
45. It was urged before this Court in Hiralal Shah case that the insertion of the word `ordinarily' will make a difference. Repelling the said contention, this Court held that the word `ordinarily' does not alter the underlying intendment of the provision. This Court made it clear that unless there is a very good reason for not doing so, the Selection Committee shall meet every year for making the selection. In doing so, the Court relied on its previous decision in Syed Khalid Rizvi vs. Union of India - 1993 Supp. (3) SCC 575.
46. In Syed Khalid Rizvi the Court was considering Regulation 5 of the Indian Police Service (Appointment by Promotion) Regulations, 1955 which also contained the word `ordinarily'. In that context the word `ordinarily' has been construed as: (Syed Khalid Rizvi, SCC p. 586, para 9) "9.......since preparation of the select list is the foundation for 38 OA No. 170/00404/2018/CAT/BANGALORE promotion and its omission impinges upon the legitimate expectation of promotee officers for consideration of their claim for promotion as IPS officers, the preparation of the select list must be construed to be mandatory. The Committee should, therefore, meet every year and prepare the select list and be reviewed and revised from time to time as exigencies demand." The same logic applies in the case of cadre review exercise also.
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.
49. With the aforesaid modification/direction, the appeals filed by the Union of India are disposed of. There shall be no order as to costs."
39. The Hon'ble Apex Court having held that right to be considered for promotion is almost a Fundamental Right and as we have already found that the chargesheet is an abuse of the process of law and had quashed it, applicant is now eligible to be promoted as from the date on which his eligibility arose which was barred by the impediment of this disciplinary enquiry. This benefit may be accorded to him within the next two months.
40. The OA is allowed. No order as to costs.
39 OA No.
170/00404/2018/CAT/BANGALORE
(C V SANKAR) (DR.K.B.SURESH)
MEMBER (A) MEMBER (J)
/ksk/
Annexures referred to by the applicant in OA No.170/00404/2018 Annexure-A1: Copy of the CBDT circular dated 22.12.2006 Annexure-A2: Copy of the complaint dated 07.11.2007 Annexure-A3: Copy of the communication dated 13.11.2017 Annexure-A4: Copy of the show cause notice dated 29.03.2016 Annexure-A5: Copy of the reply dated 18.05.2016 Annexure-A6: Copy of the reply dated 28.02.2018 Annexure-A7: Copy of the office memorandum dated 16.11.2017 Annexure-A8: Copy of the memorandum dated 06.04.2018 Annexures with reply statement Nil Annexures with written argument note of Respondents Annexure-R1: Copy of the chronology of events in the case of Shri D.K. Jha, Additional CIT.
*****