REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2651-52 OF 2010

(Arising out of SLP(C) No.6758-6759/2009)

Union of India & Another ..Appellant(s)

Versus

Hemraj Singh Chauhan & Others ..Respondent(s)

J U D G M E N T

GANGULY, J.

1.Leave granted.

2.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.

1

3.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 1

st

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.

4.Those regulations have been framed in exercise of

power under Sub-Rule 1 of Rule 8 of Indian

Administrative Service Recruitment Rules, 1954 and

2

in consultation with the State Government and the

Union Public Service Commission.

5.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.

6.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)

3

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”).

7.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.

8.The case of the appellants is that the next cadre

review for the State of Uttar Pradesh fell due on

30

th

April, 2003. To that effect a letter 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.

4

9. The further case of the appellants is that

several reminders were sent on 5

th

March, 3

rd

September, 17

th

September and 8

th

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

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

th

/17

th

June, 2004 and

8

th

October, 2004.

10.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

st

February, 2005. Thereafter, a

cadre review meeting was held under the

Chairmanship of the Cabinet Secretary on 20

th

5

April, 2005 and the Minutes duly signed by the

Chief Secretary, Government of Uttar Pradesh were

received by the appellants on 27

th

June, 2005.

After approval was given to the said Minutes,

notification was issued on 25

th

August, 2005 re-

fixing the cadre strength in the State of Uttar

Pradesh.

11.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.

12.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

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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.

13.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.

14.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. However, the C.A.T. after

hearing the parties upheld the contention of the

State of Uttar Pradesh and held that the cadre

review carried out in 2005 cannot be given

retrospective effect. The Tribunal dismissed O.A.

7

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.

15.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.

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16.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.

17.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

18.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 1.2.2006

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and 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 30

th

April,

2003 with reference to the vacancy position as on

1

st

January, 2004.

19.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 Administrative Service (Recruitment)

Rules, 1954 is set out:-

“4. Method of recruitment of the

Service

(1) xxx xxxx

Xxx xxx

(b)By promotion of a substantive member

of a State Civil Service;”

20.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

1

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.”

21.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.

22.The other regulation which is relevant in this

case is Rule 5 of Indian Administrative Service

1

(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

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the age of fifty-four

years on the first day of

January of 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.”

23. Another regulation relevant in this connection is

Indian Administrative Service (Cadre) Rules, 1954

(hereinafter referred to as, ‘the Cadre Rules’)

24.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.

1

25.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:-

“(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

1

like nature to cadre

posts.”

26.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).

27.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.

28.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

1

urged that the cadre review of I.A.S. cadre of

Uttar Pradesh is due on 30

th

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

1

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 28

th

February, 2003 to this

Department for processing

the case further.

With regards”

29.In various subsequent letters, namely dated 5

th

March, 2003, 3

rd

September, 2003, 17

th

September,

2003, 8

th

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.

30.It cannot be disputed that the Central Government

took the aforesaid stand in view of its statutory

responsibility of initiating cadre review as a

1

cadre controlling authority. In fact in the letter

dated 29

th

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 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.”

31.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

1

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.”

32.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.

33.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

1

Cadre Rules was due on 30.04.2003. 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.”

34.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.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

2

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.

36.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;

2

(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 U.P.

Government and lackadaisical attitude in

discharging its statutory

responsibility.

37.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.

38.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

2

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.

39.In The Manager, Government Branch Press and Anr.

vs. D.B. Belliappa – (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

para 24 page 486).

40.It is, therefore, clear that legitimate

expectations of the respondents of being

considered for promotion has been defeated by the

acts of the government and if not of the Central

Government, certainly the unreasonable in-action

on the part of the Government of State of U.P.

stood in the way of the respondents’ chances of

promotion from being fairly considered when it is

due for such consideration and delay has made them

2

ineligible for such consideration. Now the

question which is weighing on the conscience of

this Court is how to fairly resolve this

controversy.

41. 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.

42.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

2

fulfill the statutory intent for which it has been

used.

43.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].

44. Concurring with the aforesaid interpretative

exercise, we hold that the statutory duty which is

cast on the State Government and the Central

Government to undertake the cadre review exercise

2

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.

45.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.

46.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

2

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.

47. It was urged before this Court 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. In that case the Court

2

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:

“…….since preparation

of the select list is the

foundation for 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.”

48.The same logic applies in the case of cadre review

exercise also.

49.Therefore, this Court accepts the arguments of the

learned counsel for the appellants that Rule 4(2)

2

cannot be construed to have any retrospective

operation and it will operate prospectively. But

in the facts and circumstances of the case, the

Court can, especially having regard to its power

under Article 142 of the Constitution, give

suitable directions in order to mitigate the

hardship and denial of legitimate rights of the

employees. 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.

2

50.With the aforesaid modification/direction, the

appeals filed by the Union of India are disposed

of. There shall be no order as to costs.

.......................J.

(R.V. RAVEENDRAN)

.......................J.

(ASOK KUMAR GANGULY)

New Delhi

March 23, 2010

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