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.

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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 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.

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  

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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)  

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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  

30th 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.   

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9.  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  

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 14th/17th June, 2004 and  

8th 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 21st February, 2005.  Thereafter, a  

cadre  review  meeting  was  held  under  the  

Chairmanship  of  the  Cabinet  Secretary  on  20th  

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April, 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 25th 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.  

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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 30th April,  

2003 with reference to the vacancy position as on  

1st 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  

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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  

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(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.   

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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  

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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  

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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  

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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”

29. 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.    

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  

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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  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  

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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  

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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;

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(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  

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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  

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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  

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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  

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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  

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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  

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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)  

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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.

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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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