The State of Maharashtra v. Uddhao Pandurang Patil

13. The State Government had done the exercise of cadre review in 2002. The next cadre review was due in 2007 but the same was not done. Finally, the cadre review was done in 2010. At the time when the cadre review was done, the vacancy position had increased to 62 and by Uday S. Jagtap 9 that time the respondent no.1 crossed the age of 54 years. The respondent no.1, whose date of birth is 5th March 1955 had completed 54 years of age as on 1st January 2010.

14. The officers who had not completed 54 years of age as on 1st January 2010 were to be considered as per their seniority in promotion to the IFS. It was for this reason that the respondent no.1’s name was not included in the zone of consideration against the vacancies for the year 2010. The Tribunal found legitimacy in the grievance of the respondent no.1 that had the cadre review been done in 2007, the respondent no.1 could have been considered against the available vacancies for promotion / induction in the IFS. The Tribunal found that for no fault on his part, the legitimate right of consideration for promotion has been denied by illegal and arbitrary action of the authorities in delaying undertaking cadre review for 3 years. The Tribunal found the delay of 3 years to be unexplained and not justified.

15. The question is whether we should interfere with the findings of the Tribunal. For this purpose, let us consider the reasons provided by the State Government in Uday S. Jagtap 10 undertaking the cadre review in 2010, which it should have actually done in 2007 itself. The State Government sent proposal to the Government of India in May 2008. The Government of India, in July 2009, suggested some modifications in the proposal to remove stagnation in the cadre. Accordingly, the revised proposal was sent to the Government of India on 7th September 2009. The meeting to consider the revised proposal was held at the level of Government of India on 11th September 2009. Thereafter, the Government of India, vide its letter dated 15th September 2009, communicated the sanction to 126 posts and asked the State Government to inform the nomenclature of these posts. The State Government, vide letter dated 16th December 2009, informed the nomenclature and suggested some changes in the cadre strength so that the reversion of some officers could be avoided. Finally, the Government of India informed the cadre strength in respect of the State Government vide Notification dated 14th May 2010.

16. It is pertinent to note that in the present case, the Ministry of Environment and Forest vide letter dated 2nd December 2011, addressed to the Government of Uday S. Jagtap 11 Maharashtra in response to their letter dated 4th May 2011, declined to give retrospective effect to the cadre review from 2010 to 2007.

17. At this juncture, it is significant to make a reference to the decisions of the Hon’ble Supreme Court, relied upon by the learned counsel for respondent no.1. In

18. The other important decision has been rendered in Hemraj Singh Chauhan (supra). The Hon’ble Supreme Court was considering Rule 4(2) of the India Forest Service (Cadre) Rules, 1966. The employees who were State Civil Service Officers were expecting promotion to India Administrative Service under the promotion quota. However, the cadre review, which ought to have been done in 2003, was actually done in 2005. Delay was mainly due to inaction on the part of the State Government. In the meantime, the employees crossed the upper age limit of 54 years and became ineligible for consideration of promotion. Their contention before the Uday S. Jagtap 16 Administrative Tribunal was that cadre review should be given effect retrospectively from 2003 and they should be considered for promotion accordingly. This contention was rejected by the Tribunal. However, the High Court held that the cadre review done in 2005 should be deemed to have been done in 2003 and the respondents be considered for promotion accordingly. The directions of the High Court were affirmed by the Hon’ble Supreme Court. Their Lordships accepted the argument of learned counsel for the Union of India that Rule 4(2) cannot be construed to have any retrospective operation and will operate prospectively. But in the facts and circumstances of the case, it was held that 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 Hon’ble Supreme Court was satisfied that, for the delayed exercise of statutory function the Government has not offered any plausible explanation. Their Lordships observed that the employees cannot be made anyway responsible for the delay. In such a situation, the Hon’ble Supreme Court found that the directions given by the High Uday S. Jagtap 17 Court cannot be said to be unreasonable. It is in such circumstances that the Hon’ble Supreme Court reiterated those very directions issued by the High Court 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.

19. In the instant case, the cadre review was due in the year 2007. Had the cadre review taken place in 2007, the respondent no.1 would have been eligible to be considered. However, when the cadre review actually took place in the year 2010, the respondent no.1 had crossed the age of 54 years and, therefore, was not considered. As held by the Hon’ble Supreme Court, the Central Government and the State Government are to act as model employers, which is consistent with their role in a welfare State. It is 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. We have no hesitation in holding that the legitimate expectation of the Uday S. Jagtap 18 respondent no.1 of being considered for promotion, in the present case, has been defeated as a result of the delay in holding cadre review.

20. It is also pertinent to note that the Hon’ble Supreme Court in Hemraj Singh Chauhan (supra) para 39 to 42 made some significant observations, which read thus:- “39. The 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 fulfil 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 V. Roshan Kumar (1976) 1 SCC 671 at SCC p.682, para 35). It excludes something which is extraordinary or special (Eicher Tractors Ltd. v. Commr. of Customs (2001) 1 SCC 315 at SCC p.319, para 6). the word “ordinarily” would convey the idea of something which is done “normally” (Krishan Gopal v. Prakashchandra (1974) 1 SCC 134, para 12) and “generally” subject to special provision (Mohan Baitha v. Uday S. Jagtap 19 State of Bihar (2001) 4 SCC 350 at SCC p.354.

42. 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 every five years is ordinarily mandatory subject to exceptions which may be justified in the facts of a given case. Surely lethargy, inaction, an absence of a sense of responsibility cannot fall within the category of just exceptions.”

21. It is thus, the statutory duty cast on the State Government and the Central Government to undertake the cadre review exercise every 5 years, which is ordinarily mandatory, subject to exceptions which may be justified in the facts of the given case.

22. The respondent’s case though not covered by the first proviso to Regulation 5(3), it is pertinent to note that a contingency is carved out when a member of the State Forest Service who though has attained the age of 54 years, can be considered. This is an indication that crossing the age of 54 years is not an absolute bar for consideration. We, therefore, have to find out whether the Tribunal has made a just exception in the present facts on the touchstone of the law laid down by the Hon’ble Supreme Court. Though Regulation 5(3) has to be strictly Uday S. Jagtap 20 construed in view of the mandatory nature of the phraseology used (“shall not consider the cases”), the same will have to be considered, due regard being had to the provisions of Rule 4(2) of the Cadre Rules.

23. We do not find the reasoning of the Tribunal to be perverse or such that the same warrants interference. The explanation offered by the Petitioner – State Government for the delay in undertaking the exercise is not justifiable. Therefore, the delayed exercise cannot be justified within the meaning of “ordinarily” within Rule 4(2) in the facts of this case. We are in respectful agreement with the observations of the Tribunal that there is unjustified delay on the part of the authorities in carrying out the cadre review which stifles the legitimate claim of the respondent no.1.

24. Learned AGP submitted that the decision of the Hon’ble Supreme Court in Hemraj Singh Chauhan (supra) is in exercise of its power under Article 142 of the Constitution of India and it is not open for this Court under Articles 226 and 227 to go into the aspect of delay in conducting the cadre review. The Tribunal has, in the Uday S. Jagtap 21 instant case, on a sound reasoning, directed the Union Government as well as State Government to reconsider the question of promotion / induction of respondent no.1 to IFS by holding a review DPC/ Selection Committee for the year 2007 cadre review cycle and, if found entitled, to grant notional inductions benefits available to respondent no.1. Having regard to the nature of the directions issued by the Tribunal, we are not inclined to interfere with the order of the Tribunal in the exercise of our writ jurisdiction under Articles 226 and 227 of the Constitution of India.

25. The Writ Petitions are dismissed. No costs.

26. In view of the dismissal of the Writ Petitions, pending applications, if any, also stands disposed of. (N. R. BORKAR, J.) (M. S. KARNIK, J.) Uday S. Jagtap 22