UNION OF INDIA & ANOTHERversusHEMRAJ SINGH CHAUHAN & OTHERS

                    [2010] 3 S.C.R. 755


               UNION OF INDIA & ANOTHER                         A
                             v.
          HEMRAJ SINGH C~:AUHAN & OTHERS
           (Civil Appeal No. 2651-2652 of 2010)
                     MARCH 23, 2010
                                                                B
        [R.V. RAVEENDRAN AND ASOK KUMAR
                      GANGULY, JJ.]

     Service law:
                                                               c
      Indian Administrative Service (Cadre) Rules, 1954 -
Rule 4(2) - Cadre review - Compliance of Rule 4(2) -
Members of U.P. State Civil Service seeking promotion -
Issuance of Notification in 2000, fixing the cadre strength of
U.P. - Another Notification in 2005, re-fixing the cadre 0
strength - Challenge to, on the ground that since last cadre
review of I.A. S. in UP cadre conducted in 1998, next cadre
review was due in 2003, thus, cadre review conducted in 2005
to be given retrospective effect - Application set aside by
tribunal - High Court setting aside the judgment of tribunal - E
On appeal, held: Statutory duty cast on State and Central
Government to undertake cadre review exercise every 5 years
is ordinarily mandatory subject to exceptions - Lethargy, in-
action not just exceptions - On facts, both Central and State
Government under Rule 4(2) accepted on principle that cadre
review in U.P. was due in 2003 - Reason for delay in review F
was total in-action on the part of State and lackadaisical
attitude in discharging its statutory responsibility - Delayed
exercise cannot be justified within the meaning of 'ordinarily'-
Thus, members not responsible for the delay - Rule 4(2) will
operate prospectively and not retrospectively - Directions G
issued by High Court reasonable - Indian Administrative
Service (Appointment by Promotion) Regulations, 1955 -
Indian Administrative Service (Recruitment) Rules, 1954 -
Rule 4(1)(b).
                              755                                H
    756     SUPREME COURT REPORTS               [2010) 3 S.C.R.

A        Words and Phrases: Word 'ordinarily' - Meaning of - In
    the context of Rufe 4(2) of the Indian Administrative Service
    (Cadre) Rules, 1954.

         The respondents are members of the State Civil
    Service (S.C.S.) of the State of Uttar Pradesh. They
8
    completed eight years of service on 23.07.85 and 04.06.86
    respectively. As a result of the bifurcation of the State of
    Uttar Pradesh, notification was issued on 21.10.2000,
    fixing the cadre strength of State of Uttar Pradesh. On
    25.08.2005, another notification was issued re-fixing the
C   cadre strength in the State of Uttar Pradesh. The
    respondents challenged the said notification on the
    ground that since the last cadre review of the l.A.S. of
    Uttar Pradesh cadre was conducted in 1998, the next
    cadre review was due in 2003; and that the cadre review
D   conducted in August 2005 should be given retrospective
    effect from April 2003. The respondents also sought
    quashing of the notification dated 01.02.2006 whereby
    vacancies were increased. The tribunal held that the
    cadre review carried out in 2005 cannot be given
E   retrospective effect. The High Court set aside the order
    of the tribunal and also the notifications dated 25.08.2005
    and 01.02.2006. It directed the State Government and the
    Central Government that cadre review exercise should be
    undertaken as if it was taking place on 30-04-2003 with
F   reference to the vacancy position as on 01.01.2004.
    Hence, the present appeals.

        Disposing of the appeals with certain modifications/
    directions, the Court

G     HELD: 1.1 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. On facts, it is clear that both the
  authorities under Rule 4(2) of the Indian Administrative
H Service (Cadre) Rules, 1954 accepted on principle that
     UNION OF INDIA & ANR. v. HEMRAJ SINGH               757
               CHAUHAN & ORS.
cadre review in Uttar Pradesh was due in 2003. [Paras 27        A
and 34] [767-F-G; 770-C]

    T.N. Administrative Service Officers Association and
another v. Union of India and others (2000) 5 sec 728, relied
on.                                                             B
     1.2. 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. [Para   C
37] (771-C]

     1.3. The right of eligible employees to be considered
for promotion is virtually a part of their fundamental right
guaranteed under Article 16 of the Constitution. The            o
guarantee of a fair consideration in matters of promotion
under Article 16 virtually flows from guarantee of equality
under Article 14 of the Constitution. Therefore, it is clear
that legitimate expectations of the respondents of being
considered for promotion has been defeated by the acts          E
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 ineligible for such consideration.
                                                                F
[Paras 38 and 40] [771-D-E; G-H]

     The Manager, Government Branch Press and Anr. vs.
D.B. Bel/iappa, (1979) 1 SCC 477, referred to.
                                                                G
    1.4. The submission that the statutory mandate of a
cadre review exercise every five years is qualified by the
expression 'ordinarily' and 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       H
    758     SUPREME COURT REPORTS               [2010] 3 S.C.R.


A contemplated under the Rule cannot be accepted. 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
B context of promotional opportunities of the officers
  concerned. In such a situation the word 'ordinarily' has
  to be construed in order to fulfill the statutory intent for
  which it has been used. The word 'ordinarily', of course,
  means that is does not promote a cast iron rule, it is
c flexible. It excludes something which is extraordinary or
  special. The word 'ordinarily' would convey the idea of
  something which is done 'normally' and 'generally'
  subject to special provision. [Paras 41, 42 and 43] [772-
  B-E]
D      Jasbhai Motibhai Desai vs. Roshan Kumar, Haji Bashir
  Ahmed and Others (1976) 1 SCC 671; Eicher Tractors
  Limited, Haryana vs. Commissioner of Customs, Mumbai
  (2001) 1 SCC 315; Krishan Gopal vs. Shri Prakashchandra
  and others (1974) 1 sec 128; Mohan Baitha and others vs.
E State of Bihar and another (2001) 4 sec 350 354, relied on.
       1.5. 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
F mandatory subject to exceptions which may be justified
  in the facts of a given case. Lethargy, in-action, an
  absence of a sense of responsibility cannot fall within
  category of just exception. [Para 44] [772-G-H; 773-A] .
       1.6. In the facts of the case, neither the appellants nor
G the State of U.P. justified its action of not undertaking the
  exercise within the statutory time frame on any
  acceptable ground. From the materials on record, it is
  clear that the appellant as the Cadre Controlling authority
  repeatedly urged the State Government to initiate the
H review by several letters. The only reason for the delay
     UNION OF INDIA & ANR. v. HEMRAJ SINGH              759
               CHAUHAN & ORS.
in review, was total in-action on the part of the U.P.         A
Government and lackadaisical attitude. in discharging its
statutory responsibility. The delayed exercise cannot be
justified within the meaning of 'ordinarily' in the facts of
this case. Therefore, there was failure on the part of the
authorities in carrying out the timely exercise of cadre       B
review. [Paras 36 and 45] [770-F-H; 773-B)
    1.7. The word 'ordin~rily' does not alter the
underlying intendment of the provision. Unless there is
a very good reason for not doing so, the Selection
Committee shall meet every year for making the selection.      C
[Para 47] [773-F]
    Union of India and Ors. vs. Vipinchandra Hirata/ Shah
(1996) 6 SCC 721; Syed Khalid Rizvi vs. Union of India 1993
Supp. (3) SCC 575, referred to.                                D
     1.8. Rule 4(2) cannot be construed to have any
retrospective operation and it will operate prospectively.
But in the facts and circumstances of the case, the court
can, especially having regard to its power under Article
142 of the Constitution, give suitable directions in order     E
to mitigate the hardship and denial of legitimate rights of
the employees. In the instant 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 delay. In such       F
a situation, the directions given by the High Court to the
State Government and the Central Government that the
cadre review exercise should be undertaken as if it was
taking place on 30.04.2003 with reference to the vacancy
position as on 01.01.2004, cannot be said to be                G
unreasonable. In any event, the said directions are
reiterated in exercise of the power under Article 142
subject to the only rider that in normal cases the
provision of rule 4(2) of the Cadre Rules cannot be
construed retrospectively. [Paras 18 and 49) [774-D-F;
                                                               H
764-G]
    760      SUPREME COURT REPORTS                (2010] 3 S.C.R.

A                         Case Law Reference:
          (2000) 5 sec 728         Relied on.            Para 29
          (1979) 1 sec 477         Referred to.          Para 39
          (1976) 1 sec 671         Re1ied on.            Para 43
B
          (2001) 1 sec 315         Relied on.            Para 43
          (1974) 1 sec 128         Relied on.            Para 43
          (2001) 4 sec 350         Relied on.            Para 43
c
          (1996) 6 sec 121         Referred to.          Para 46
          1993 Supp. (3) SCC 575 Referred to.            Para 47
      CIVIL APPELLATE JURISDICTION : Civil Appeal No.
D 2651-2652 of 2010.

        From the Judgment & Order dated 14.11.2008 of the High
    Court of Delhi at New Delhi in Writ P,etition (Civil) No. 19103-
    04 of 2006.

E     V.N. Shetty, L.N. Rao, S.L. Misra, Shail Dwivedi, AAG,
  Ravindra Kumar, T.V. Ratnam, Naresh Kaushik, Kiran
  Bhardwaj, Anil Katiyar, B. Krishna Prasad, Binu Tamta, ·
  Upendra Nath Misra, Nikhil Majithia, Anuvrat Sharma, Kapil
  Misra, Shiva Kumar Sinha, Jitendra Mohan Sharma, Sandeep
F Singh and Sandeep Malik for the appearing parties.

          The Judgment of the Court was delivered by

          GANGULY, J. 1. Leave granted.

G        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.
H
     UNION OF INDIA & ANR. v. HEMRAJ SINGH                     761
   CHAUHAN & ORS. [ASOK KUMAR GANGULY, J.]
      3. The respondents are members of the State Civil Service       A
(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             B
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
yes;irs immediately preceding the year in which such meeting          c
is held, but could not be considered as no meeting of the
<;ommittee 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 in consultation with the          D
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       E
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.      F

     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             G
21.10.2000. The first was issued under Section 3(1) of the All
India Services Act, 1951 read with Section 72 (2) and (3) of
the Reorganization Act and Rule 4 (2) of the Indian
Administrative Service (Fixation of Cadre Strength)
Regulations, 1956 (hereinafter referred to as the "Cadre Rule").      H
    762     SUPREME COURT REPORTS                  [2010] 3 S.C:R.


A      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 n~mber of senior posts in the State of
B 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
C 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.

        9. The further case of the appellants is that several
  reminders were sent on 5th March, 3rd September, 17th
D 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.AS.
  cadre of Uttar Pradesh but no response was received from the
E 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
F 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
G under the Chairmanship of the Cabinet Secretary on 20th April,
  2005 and the Minutes duly signed by the Chief Secretary,
  Government of !Jttar Pradesh were received by the appellants
  on 27th June, 4005. After approval was given to the said
  Minutes, notification was issued on 25th August, 2005 re-fixing
H the cadre strength in the State of Uttar Pradesh.
     UNION OF INDIA & ANR. v. HEMRAJ SINGH                  763
   CHAUHAN & ORS. [ASOK KUMAR GANGULY, J.]
     11. Challenging the said notification, the respondents        A
herein approached Central Administrative Tribunal, Principal
Bench, New Delhi (hereinafter referred to as C.AT.) 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     B
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.AS. in Uttar   C
Pradesh cadre was conducted in 1998 and the next cadre
review was therefore due in April 2003. As such it was
contended that the cadre review which was conducted in
August 2005 should have been given effect from April 2003 so
that the respondents could be considered for promotion against
the promotion quota.                                               D

     13. The stand of the State of Uttar Pradesh before C.AT.
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.AS .. Uttar      E
Pradesh and l.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.AT. and
before the High Court was that the cadre review was due in
                                                                   F
2003. However, the C.AT. 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 No.1097/06 and partially allowed
O.A No.1137/06, inter alia, directing the respondents to           G
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      H
    764      SUPREME COURT REPORTS                [2010] 3 S.C.R.

A of integrity certificate.

       15. However, the respondents being aggrieved by the
  judgment of the C.AT. filed a writ petition before the Hon'ble
  High Court on 18.12.2006 contending therein that the cadre
  review of the I.AS. of Uttar Pradesh cadre was due in 2003
8
  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 l.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
C promoted to I.AS.

        16. However, before the High Court the stand of the Central
  Government was that the cadre review of the I.AS. of Uttar
  Pradesh was due in 2003 but unfortunately it was held in 2005
D 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 l.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
E 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
F 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.AT. dated 15.12.2006 and the
  notifications dated 1.2.2006 and 25.8.2005 were set aside. The
G 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
H
    UNION OF INDIA & ANR. v. HEMRAJ SINGH                     765
  CHAUHAN & ORS. [ASOK KUMAR GANGULY, J.]
relevant statutory provisions may be noted. The respondents           A
being S.C.S. Officers, are seeking promotion to I.AS. 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:-
                                                                      B
     "4. Method of recruitment of the Service

      (1)   xxx xxxx
            Xxx xxx
      (b)   By promotion of a substantive member of a State
                                                                      c
            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 Recruitment Rules in this connection      D
is set out below:-

    "8. Recruitment by promotion or selection for appointment
    to State and Joint Cadre:-
                                                                      E
          (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               F
    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         G
concerned with that controversy.

    22. The other regulation which is relevant in this case is
Rule 5 of Indian Administrative Service (Appointment by
Promotion) Regulations, 1955 (hereinafter referred to as, 'the        H
    766       SUPREME COURT REPORTS                  (201 O] 3 S.C.R.

A   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
B         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
c         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
D         the age of fifty four years:

          Provided further that a member of the State Civil Service
          who has attained the age of fifty-four years on the first day
          of January of the year in which the Committee meets shall
          be considered by the Committee, if he was eligible for
E
          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."
F
         23. Another regulation relevant in this connection is Indian
    Administrative Service (Cadre) Rules, 1954 (hereinafter
    referred to as, 'the Cadre Rules')

G        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
H the commencement of those rules.
    UNION OF INDIA & ANR. v. HEMRAJ SINGH                    767
  CHAUHAN & ORS. [ASOK KUMAR GANGULY, J.]
     25. Rule 4(2) has come up for interpretation in this case      A
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
                                                                    8
     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        C
     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    0
     exceeding three years, to a Sate or Joint Cadre one or
     mo(e posts carrying duties or responsibilities of a 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         E
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        F
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.                G

    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 urged that the cadre review of I.AS. cadre of Uttar      H
    768       SUPREME COURT REPORTS                  [2010] 3 S.C.R.

A   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,
B
                 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
c         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
D         that the cadre reviews are held on time.

          2. I shall, therefore, be grateful if you could look into the
          matter personally and instruct the concerned officials to
          sponsor the review proposals in the prescribed proforma,
          after taking into consideration the requirement of the State
E
          Government by 28th February, 2003 to this Department·for
          processing the case further.

                With regards"

F      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
G laid down by this Court in the case of T.N. Administrative
    Service Officers AssociatiiY-1 and another v. Union of India and
    others, reported in (2000) 5   sec  728.

        30. It cannot be disputed that the Central Government took
  the aforesaid stand in view of its statutory responsibility of
H initiating cadre review as a cadre controlling authority. In fact
    UNION OF INDIA & ANR. v. HEMRAJ SINGH                     769
  CHAUHAN & ORS. [ASOK KUMAR GANGULY, J.]
in the letter dated 29th August, 2005 by Neera Yadav, on behalf       A
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      8
     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-ll dated
     23.01.2003 request~ that State Government to sponsor
     the review proposar,qn the prescribed proforma as cadre
     review as cadre review of Indian Administrative Service,         C
     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:-                                                 D

     "It is submitted that the last cadre strength of the IAS cadre
     of unified cadre of Uttar Pradesh was notified on
     30.04.1998. Therefore, as per Rule 4(2) of the IAS (Cadre)
     Rules, 1954, the next review was due on 30.4.2003."
                                                                      E
     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,            F
2000. It was admitted that the I.AS 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   G
and in paragraphs 4 and 5 of the said application the State
Government reiterated the reasons for filing a 'better affidavit'.
In those paragraphs, the stand of the Central Government was
reiterated, namely, that the last cadre review was done in 1998
and the subsequent cadre review under Rule 4(2) of the Cadre          H
    770          SUPREME COURT REPORTS                (2010] 3 S.C.R.


A   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
B         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'ID:Jthorities under Rule 4(2).
C of the Cadre Rules accepted on pii'Wciple 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
0 a retrospective effect to the cadre review is bad inasmuch as
  the stand of the appellants is that the Notification dated
  25.8.2005 makes it explicitly clear that the same comes into
  force on the date of its publication in the Official Gazette.
  Relying on the said Notification, it has been urged that since
E the same has been made explicitly prospective and especially
  when the Rule in question, namely, Rule 4(2) of the Cadre RUies
  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.

F        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
G                 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
H                 delay in Cadre review;
    UNION OF INDIA & ANR. v. HEMRAJ SINGH                       771
  CHAUHAN & ORS. [ASOK KUMAR GANGULY, J.)
       (c)     From the materials on record it is clear that the        A
             · 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           8
              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            C
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    o
employees to be considered for promotion is virtually a part of
their fundamental right guaranteed under Article 16 of the
Constitution. The guarantee of a fair consideration in matters
of promotion under Article 16 virtually flows from g·uarantee of
equality under Article 14 of the Constitution.
                                                                        E
     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            F
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        G
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
ineligible for such consideration. Now the question which is            H
    772      SUPREME COURT REPORTS                   [2010] 3 S.C.R.


A   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
8
    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
C 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
D situation the word 'ordinarily' has to be construed in order to
  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
E 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'
F would convey the idea of something which is done 'normally'
  [Krishan Gopal vs. Shri Prakashchandra and others - (1974)
  1 sec 128, at page 134 (para 12)] and 'generally' subject to
  special provision [Mohan Baitha and others vs. State of Bihar
  and another - (2001) 4 sec 350 at page 354].

G     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 every five years is ordinarily mandatory
  subject to exceptions which may be justified in the facts of a
H given case. Surely, lethargy, in-action, an absence of a sense
     UNION OF INDIA & ANR. v. HEMRAJ SINGH                     773
   CHAUHAN & ORS. [ASOK KUMAR GANGULY, J.]
of responsibility cannot fall within category of just exceptions.      A

     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            8
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      C
India and Ors. vs. Vipinchandra Hiralal Shah - (1996) 6 SCC
721, while construing Regulation 5 of the l.A.S. (Appointment
by Promotion) Regulations, 1955 held that the insertion of the
word 'ordinarily' does not alter the intendment underlying the
provision. This Court in that case was considering the provision       D
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           E
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
                                                                       F
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 -            G
1993 Supp. (3) sec 575. In that case the Court was
considering Regulation 5 of the Indian Police Service
(Appointment by Promotion) Regulations, 1955 which also
contained the word 'ordinarily'. In that context the word
'ordinarily' has been construed as:                                    H
    774        SUPREME COURT REPORTS                    (2010] 3 S.C.R.


A          "....... 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
B          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.
c
        49. Therefore, this Court accepts the arguments of the
  learned counsel for the appellants that Rule 4(2) cannot be
  construed to have any retrospective operation and it will
  operate prospectively. But in the facts and circumstances of the
D 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
E 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
F 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.

        50. With the aforesaid modification/direction, the appeals
  filed by the Union bf India are disposed of. There shall be no
G order as to costs.

    N.J.                                         Appeals disposed of.