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CASE NO.: Appeal (civil) 2560 1999.

PETITIONER: S.  RAMANATHAN

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       07/12/2000

BENCH: G.B.Pattanaik

JUDGMENT:

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     JUDGMENT

     PATTANAIK,J.

     In  these appeals as well as the writ petition,  filed under  Article  32  of the Constitution of India,  a  common question  of  law arises for consideration.  The  appellants are State Police Service Officers, who have been promoted to the  Indian Police Service.  The sole grievance of theirs in these  matters is that inaction on the part of the Competent Authority  to  have triennial review, whether  entitles  the appellants  to  have  a mandamus from the Court  to  have  a review,  in  accordance  with   law  and  the  consequential directions  for  reconsideration  of   the  appellants   for promotion  to  the  post of Indian Police  Service  from  an anterior  date.   The  tribunal in  the  impugned  judgment, though  came  to  the conclusion that there has not  been  a triennial review for re-determination of the cadre strength, in  accordance with the statutory provisions, but refused to issue  mandamus, on a finding that no prejudice thereby  has been  caused  to the appellants, and as such the  appellants are not entitled to the issuance of mandamus from the Court.

     The Central Government, in consultation with the State Governments  as well as the Union Public Service Commission, made the Regulation in exercise of powers under sub-rule (1) of  Rule 9 of the Indian Police Service (Recruitment) Rules, 1954  [hereinafter  referred to as the Recruitment  Rules] and  a  set of Regulations called the Indian Police  Service (Appointment  by  Promotion) Regulations, 1955  [hereinafter referred  to  as the Promotion Regulations].  The  Central Government  also  in  exercise  of  powers  conferred  under sub-section(1)  of Section 3 of the All India Services  Act, 1951 [hereinafter called the Act] in consultation with the State  Governments, framed a set of Rules called the  Indian Police  Service (Cadre) Rules, 1954 [hereinafter referred to as  the  Cadre Rules].  Rule 4 of the Cadre Rules,  defines the strength of the cadre to mean:

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     Rule 4.  Strength of Cadres.  :  (1) The strength and composition  of each of the cadres constituted under rule  3 shall  be  as determined by regulations made by the  Central Government  in  consultation with the State  Governments  in this  behalf and until such regulations are made shall be as in force immediately before the commencement of these rules. (2)The Central Government shall, at intervals of every three years,  re-examine the strength and composition of each such cadre in consultation with the State Government or the State Governments  concerned and may make such alterations therein as  it  deems fit;  Provided that nothing in  this  sub-rule shall  be  deemed  to  affect   the  power  of  the  Central Government  to  alter  the strength and composition  of  any cadre  at  any other time:  Provided further that the  State Government  concerned may add for a period not exceeding one year  and with the approval of the Central Government for  a further  period not exceeding two years, to a State or Joint Cadre  one or more posts carrying duties or responsibilities of a like nature to cadre posts.

     Sub-rule  (2)  of  Rule  4,   as  aforesaid  makes  it obligatory  on  the  part  of   the  Central  Government  to re-determine  the strength and composition of each cadre  at intervals  of  every  three   years.   Notwithstanding   the aforesaid provisions, contained in sub-rule (2), the proviso to  said  sub-rule empowers the Central Government to  alter the strength and composition of any cadre at any other time. The  aforesaid Cadre Rules, more particularly, sub-rule  (2) thereof  was  amended  on 10th of March, 1995  and  by  such amendment,  in place of the expression at the intervals  of every  three  years,  the  expression  ordinarily  at  the interval  of  every  five years was  substituted.   We  are however  concerned  in  the case in  hand  with  pre-amended provisions.   Under  the Promotion Regulation,  when  select lists are prepared, the substantive vacancies anticipated in course  of the period of 12 months commencing from the  date of  preparation  of the lists are taken into  account.   The Cadre  strength  determined under the Cadre Rules, plays  an important  role  inasmuch  as the number of members  of  the State  Police Service, included in the list will not be more than  twice the number of substantive vacancies  anticipated in  the  course  of period of 12 months, as  provided  under Regulation 5 of the Promotion Regulation.  The procedure for preparation of the list has been succinctly indicated in the aforesaid  Promotion  Regulation.  This being the  statutory provisions,  the  question  for   consideration  is  whether infraction  on the part of the appropriate authority, in the matter  of  discharge of its obligation in relation  to  the determination  of  cadre, entitles an employee to  obtain  a mandamus from the Court, requiring the appropriate authority to  discharge  their obligation in accordance with  law  and consequently  to redetermine the case of these appellants in respect  of those vacancies which were found to be available by  the competent authority itself.  It transpires from  the records  of  these appeals that the  Central  Administrative Tribunal,   Madras  Bench  disposed   of  two   applications O.A.No.1082/91  and  O.A.No.   1125/91,   and  came  to  the conclusion  that  the triennial review required  under  Rule 4(2)  of the Cadre Rules had been carried out in March, 1979 and  the next review was due in March, 1982 but in fact  the Cadre  Strength  had been reviewed in the year 1984  and  by such  review,  seven  more  posts have  been  added  to  the promotion  quota in the State of Tamil Nadu.  The  Tribunal, therefore, directed the appropriate authority to re-consider the  case of promotion of the officers of the said Cadre  on

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the  basis of the increased cadre strength for the inclusion of  their  names  in  the select list  for  the  year  1984. Against the aforesaid judgment of the Central Administrative Tribunal,  the  Union  of India had approached  this  Court, which  however  was dismissed after hearing the  parties  by order  dated  13.11.1997  and though, no  reasons  had  been ascribed,  but  the said order appears to be a  decision  on merits, affirming the conclusion of the Tribunal.

     It  is  contended by Shri P.P.Rao, the learned  senior counsel  for  the  appellants and Shri  P.N.Mishra,  learned senior  counsel, appearing for the writ petitioners that the next  triennial  review  was due in the year 1987  but  this exercise  was initiated by Notification in the year 1989 and finally,  the  cadre strength was reviewed in the year  1991 with  a finding that there has been an increase in the cadre strength.   In view of such increase in the cadre  strength, the  chances  of promotion of the appellants to the post  of Indian  Police Service from an earlier point of time,  stood accelerated and, therefore, they approached the Tribunal for appropriate  directions.   The Tribunal, however,  following the  judgment of this Court in the case of R.R.S.Chouhan and Ors.   Vs.  Union of India and Ors., 1995 Supp.(3) SCC  109, and  on  an analysis of the factual position, being  of  the opinion  that no prejudice has been caused, refused to issue any mandamus and hence these appeals.  It may be stated that not   only  the  decision  of  the  Central   Administrative Tribunal,  Madras  was  assailed  in this  Court  by  filing special  leave  petition, which stood dismissed, as  already stated,  but  also  the   Central  Administrative  Tribunal, Ernakulam  Bench,  Cuttack  Bench  and  Gauhati  Bench  took identical  decisions,  which  not  being  assailed,  reached finality.   The effect is that four different Benches of the Central  Administrative  Tribunal have issued directions  to the  Central  Government as well as to the  concerned  State Governments to hold triennial review and reconsider the case of  promotion  of the said Cadre of Police Service  Officers and such decisions have been implemented without any murmur.

     Mr.   Rao and Mr.  Mishra, the learned senior counsel, appearing  for the appellants contended with vehemence  that when  statutory rules and regulations provide for  something to  be done in the matter of review of cadre strength within a  specified  period,  law enjoins on  such  authorities  to enforce  the  concerned provisions and to review  the  cadre strength  and  failure  on their part to  review  the  cadre strength,  entitles  the appellants to have a mandamus  from the  Court for such appropriate decisions and directions  in the matter of consideration of the case of the appellants on the  basis  of  the changed cadre strength.  Mr.   Rao  also further  submitted  that  the language used  in  Rule  4(2), leaves  no  room  for  doubt that it was  incumbent  on  the Central Government to have a cadre review every three years, which  was  in force till 1995 and the substitution  of  the said  words  by the expression will not give  the  authority with  an  unlimited  power not to take up  the  question  of triennial  review and such a view cannot be accepted by  any Court.   According to Mr.  Rao, the expression  ordinarily would  also mean within a reasonable period and in the  case in had, in fact there has been no explanation at all, coming from the Union of India as to why the triennial review could not be held in due time in the year 1987.

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     Dr.   Rajeev  Dhawan,  the   learned  senior  counsel, appearing  for  the   respondents-direct  recruits,  learned Additional  Solicitor General Mr.  Mukul Rohtagi,  appearing for  the Union of India and Mr.  A.Mariarputham, Mrs.  Aruna Mathur  and  Mr.  Anurag Mathur, appearing for the State  of Tamil  Nadu, on the other hand contended that there has been no  definite  prayer before the Tribunal seeking a  mandamus for  having  a  triennial  review  in  accordance  with  the relevant  provisions  of the Cadre Rules and that being  the position,  the appellants will not be permitted to raise the matter  after so many years, which would have the effect  of unsettling  the  settled questions.  It was  also  contended that  the  appellants having failed in their attempt to  get the  select  list altered, have now come forward  through  a subterfuge  and the discretionary jurisdiction of the  Court should  not be invoked for that purpose.  Mr.  Rohtagi,  the learned Additional Solicitor General, though candidly stated before  us  that the appropriate authority should have  done the  triennial  review  for fixation of the  cadre  strength within  the  time  stipulated  in   the  cadre  rules,   but vehemently  objected for any such direction being issued for re-consideration of the case of the appellants, more so when the  appellants have not approached the Tribunal diligently. According  to  the learned Additional Solicitor General  the tribunal  has  rightly considered the question of  prejudice and  has  denied  the  relief   sought  for.   The   learned Additional  Solicitor General also urged that the  situation which  should have been made available in 1987 on the  basis of the cadre strength, cannot be brought back by a direction for re-consideration and in that view of the matter, neither the  equity  demands  such  a  direction  nor  it  would  be appropriate  for this Court to unsettle the settled  service position.   But  to  our  query, as to  how  the  orders  of different tribunals on identical situations could be carried out  without  any  demur, the learned  Additional  Solicitor General  was  not in a position to give any reply.  It  also transpires  from  the  available records that the  Union  of India,  no-where  has even indicated as to how it  would  be unworkable  if  a  direction  is issued by  this  Court  for re-consideration  of the case of promotion to the IPS  Cadre on  the  basis of the additional vacancies which  have  been found  to  be  available.   It   would,  therefore  be   not appropriate  for  this  Court  to deny  the  relief  to  the appellants  on  the  ground  of  apprehended  administrative chaos, if the appellants are otherwise entitled to the same. It  is no doubt true that while exercising the discretionary jurisdiction,  Courts examine the question of administrative chaos or unsettling the settled position, but in the absence of  any  materials  on  record,  the  Court  should  not  be justified   in   accepting    the    apprehension   of   any administrative  chaos or unsettling the settled position, on the mere oral submission of the learned Additional Solicitor General,  without any materials in support of the same.   On examining the records of the case, we do not find an iota of material,  indicating  the so-called  administrative  chaos, likely to occur in the event any direction is issued for re- consideration  of the case of promotion on the basis of  the alteration  of the cadre strength and, therefore, we have no hesitation  in rejecting the said submission of the  learned Additional Solicitor General.

     The question, therefore arises for consideration is as to  what is the effect of Rule 4(2) of the Cadre Rules as it stood  prior to its amendment in the year 1995 and if  there

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has  been  an infraction in the matter of compliance of  the said  rule, what direction could be given to the appropriate authority?   The Cadre Rules are statutory in nature, having been  framed  by  Central Government in exercise  of  powers under sub- section(1) of Section 3 of the All India Services Act,  1951.   The language of sub-rule(2) of Rule 4,  as  it stood  prior to its amendment is rather peremptory in nature and  thus  it  requires that the Central Government  has  to re-examine  the  strength and composition of each  cadre  in consultation  with  the State Government concerned and  make such  alteration  therein as it deems fit.  It is  no  doubt true that an infraction of the aforesaid provisions does not confer  a  vested right with an employee for  requiring  the Court  to issue any mandamus.  But it cannot be denied  that if  there  has been an infraction of the provisions  and  no explanation  is  forth-coming from the  Central  Government, indicating  the circumstances under which the exercise could not  be undertaken, the aggrieved party may well approach  a Court  and  a  Court in its turn would be  well  within  its jurisdiction to issue appropriate directions, depending upon the  circumstances of the case.  When certain power has been conferred  upon  the  Central Government for  examining  the cadre  strength, necessarily the same is coupled with a duty to  comply  with  the  requirements  of  the  law  and   any infraction  on  that  score cannot be whittled down  on  the hypothesis  that  no vested right of any employee  is  being jeopardised.   The  learned Additional Solicitor General  is not  in a position to refute the fact that in the event, the cadre strength, which has in fact increased in the year 1991 is  taken into account, then in the matter of  determination on  the  question  of promotion, some  additional  advantage could  be available to the employees in the erstwhile  State Cadre,  who have been considered for promotion to the Indian Police  Service.   That  apart when  Rules  and  Regulations provide  for certain things to be done at a certain  period, the same should normally be observed and if there has been a failure,  the  Court should compel the performance  of  that duty.  In the case of Syed Khalid Rizvi and Ors.  Vs.  Union of  India  and  Ors., 1993 Supp.(3) SCC 575, a  three  Judge Bench  of this Court had examined the provisions of the  IPS (Regulations  of Seniority) Rules, 1994 and other provisions of  the  Recruitment Rules, Cadre Rules and  Appointment  by Promotion Regulation and it was observed:

     The  leeway and liberty given to the State Government under Regulation 8 of Promotion Regulations read with Rule 9 of  the  Cadre Rules is only to cope up with  administrative exigencies  but  it became a breeding ground to distort  the operation of the Rules which should scrupulously be eschewed and avoided.

     The  Court examined in the aforesaid case the question whether  the  failure to prepare the select list would  give rise  to an inference that rules have been collapsed and the State   Governments  local  arrangement   shall  be   given legitimacy  as  regular appointments.  After giving  anxious consideration  to the end resultants, the Court had found it hard  to accept the same.  The Court observed that the State Government and the Central Government should strictly comply with  the provisions in making Recruitment by promotion from the  State  Service to the All India Services and if  laxity has  to  be  given  legitimacy   and  deemed  relaxation  is extended,  it would not only upset the smooth working of the rules  but  also undo the prescribed ratio between  promotee officers  and  direct recruits.  It is in that context,  the

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Court  ultimately  issued certain directions to be  complied with by the Central Government, after taking objections from the  promotees  who were included in the notional  list  for different  years.   The aforesaid decision, no doubt  is  in relation  to the placement of an employee in the select list and  has no direct application to the case in hand, but  the observations  made with regard to performance of duties of a statutory  authority  should  equally apply to the  case  in hand.  The impugned judgment of the tribunal proceeds on the assumption  that the decision of this Court in R.R.S.Chouhan and  Ors.   Vs.  Union of India and Ors., 1995 Supp.(3)  SCC 109,  which was a decision in relation to an officer of  the Indian  Forest Service governs the field.  In that case, the Court  was examining the question whether an officer even if was  continuously officiating on a senior post, can avail of the benefit of the said officiation in view of the fact that in  the subsequent select list, the names of those  officers have  not  been included.  The aforesaid decision is  of  no assistance  to us in the present case where the question for consideration  is,  when  the Competent authority  fails  to discharge its obligation, conferred under the statute, could the  Court compel the authority for such performance and  if so,  what would be the mode of relief to be given, depending upon  the facts and circumstances of each case.  In the case of  S.L.Kaul  and Ors.  Vs.  Secretary to Govt.   of  India, Ministry  of  Information  and Broadcasting, New  Delhi  and Ors.,  1989  Supp.(1)  SCC 147, on which,  Dr.   Dhawan  had placed  reliance, the Court was considering the question  of up-gradation  of  posts and the seniority and  promotion  to those  posts  on the basis of length of continuous  service. The  Court in fact had observed that the incumbents have not to  suffer  for the lapse on the part of the  Government  in delay  in  amending the Schedule to the Rules.  We  fail  to understand,  as  to  how  this   decision  will  be  of  any assistance to us in arriving at an appropriate conclusion on the  question  involved.  Dr.  Dhawan, had  strongly  relied upon  the decision of this Court in R.S.  Mittal vs.   Union of  India,  1995  Supp.(2) SCC 230,  whereunder  this  Court having  come to the conclusion that the Central Governments approach  was  wholly unjustified, yet refused to grant  the relief  to the applicant in the peculiar facts of the  case. But  the  relief, which has been sought for in  the  present appeals,  namely  a  direction to the  Union  Government  to re-consider  the question of promotion to the Indian  Police Service  on  the  basis  of  their  own  fixation  of  cadre strength,  which  they did in the year 1991, though  it  was supposed  to  have been done in the year 1987.  The  general principles,  as indicated in the Mittals case, will have no application,  particularly  when  the  Union  Government  is totally  silent  in the matter of indicating the  effect  of such   a  direction.   The  decision   of  this   Court   in T.N.Administrative  Service  Officers Assn.  and  anr.   vs. Union  of India and Ors., 2000(5) SCC 728, was also  brought to  our notice, in support of the contention that mere delay in  undertaking  the review will not ipso facto  entitle  an employee  to get a writ of mandamus from the Court.  But  in that case, Court was considering the infraction of Rule 4 of the IAS Cadre Rules and undoubtedly, there has been delay in undertaking   such  review  and   consequential   delay   in preparation  of select list but that delay was found to have been  sufficiently  explained  by the Union  Government  and that,  therefore,  the  Court  said  that  the  question  of fixation  of  seniority of the promotees with  retrospective effect  cannot  be  granted.  In the case in  hand,  in  the absence  of any explanation for not conducting the triennial

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review  within  the  specified period of  three  years,  the aforesaid  decision will have no application.  The  decision of  this Court in Ramesh Chand Sharma vs.  Udham Singh Kamal and  Ors., 1999(8) SCC 304, was also pressed into service in support of the contention that the appellants had approached the  tribunal  beyond limitation, provided under Section  19 and,  therefore are not entitled to invoke the  jurisdiction of  this Court under Article 136, even if there has been  an infraction  of  the statutory obligation, which lay  on  the authority  to  have  the  triennial   review.   We  are  not persuaded  to accept this submission inasmuch the appellants approached  the tribunal, the moment the competent authority re-determined  the  cadre  strength in the year  1991,  and, therefore,  it cannot be said that there has been latches on the  part  of the appellants to approach the  administrative tribunal.   One other decision, which may be noticed at this stage  is  the case of Devendra Narayan Singh and Ors.   Vs. State  of Bihar and Ors., 1996(11) SCC 342, to which one  of us, Pattanaik, J was a party.  In that case, the appropriate authority  had  committed error in not preparing the  select list  for  a particular year and pursuant to a direction  of this  Court  the employees name was included in the  select list of a later year and ultimately this Court observed that the  select  list  in  question must be held to  be  of  the relevant year, where-in on account of error committed by the appropriate  authority the name could not be included.  This indicates  that the Court has been insisting performance  of duty upon the authority under the statute quite meticulously and on the admitted position that the process of determining the cadre strength was initiated in the year 1989 and it was finalised in the year 1991, there is no rhyme and reason why the  respondents  will  not be directed  to  reconsider  the question  on the basis of the altered strength of the cadre, as if it was so altered in the year 1989 when the process of determination   of  cadre  strength   was  initiated.    We, accordingly  set  aside the impugned orders of the  tribunal and  direct  the  Union  Government as  well  as  the  State Government  to  reconsider the question of promotion of  the State  Cadre  Officers to the Indian Police Service  on  the basis  of the re-determined strength of the cadre,  treating the  same  to  be  in  the  year  1989  and  if  on  such  a re-consideration  relief  would be available to any  of  the appellants  for  promotion  to the IPS on the basis  of  the quota  available to them in the cadre, the same may be given to  them.  This exercise may be done within a period of  six months  from  the  date  of receipt of  this  order.   These appeals and the writ petition are disposed of accordingly.