ASHOK KUMAR SHARMA Vs. UNION OF INDIA

JUDGEMENT

(1.) Dr. Ashok Kumar Sharma and another, applicants herein, have assailed the Government of Uttar Pradesh recommendation dated 27.03.2010 (Annexure -A1 Colly), 22.05.2010, 08.09.2010 and Central Government order thereon dated 10.09.2010 (page 46) whereby the Non State Civil Services (NSCS) officers have been denied their rightful induction in the IAS due to cadre review and restructuring. It is the case of the applicants that there were certain directions contained in the judgment of the Lucknow Bench dated 06.09.2010, on the basis of which the Central Government granting an erroneous approval on 10.09.2010 diverted 11 vacancies earmarked for the Non State Civil Services (NSCS) Officers to the State Civil Services (SCS) officers. The applicants have, therefore, approached this Tribunal with following relief(s): - a. Quash and set aside the letter dated 27.03.2010 issued by the Principal Secretary, Government of UP to the DOPT, Government of India to the extent it propose to utilize all the vacancies available for the year 2004 to 2010 to be filled up from the SCS Officers. b. Quash and set aside the order contained in the letter dated 10.09.2010 of DOPT, Government of India to the extent it has redetermined the promotion quota vacancies of IAS as 29 in place of 18 for the Select List year 2004, as a result of which the 11 vacancies determined by the Government of India vide notification dated 01.02.2006 for recruitment by selection for the Non SCS Officers and the process of selection had also proceeded in terms of Regulation 5 of the Selection Regulation, have now been diverted to be filled up from the State Civil Service Officers. c. Declare and direct that the 11 vacancies in the IAS (UP Cadre), which had been earlier notified/earmarked to be filled by selection of the Non SCS Officers vide Notification dated 01.02.2006 and in respect of which interview has already been held on 21 -23.12.2006, be filled from the Non SCS Officers (selectees). d. Pass any other or further order(s) as this Honble Court may deem fit and proper.

(2.) At the admission stage, as the applicants had approached the Tribunal seeking interim relief, we passed an order on 29.10.2010, directing that appointment/promotion on eleven posts which have been diverted to State Civil Cadre shall be subject to final outcome of present Original Application.

(3.) Brief facts of the case would manifest that as a result of bifurcation of the State of Uttar Pradesh and creation of the State of Uttaranchal in terms of the State Reorganisation Act, 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 Sections 72(2) and (3) of the Reorganisation Act and Rule 4(2) of the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955 (the Cadre Rules in short). 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 the State of Uttar Pradesh thereby determining the number of senior posts in the State of Uttar Pradesh as 253. The next cadre review for the State of Uttar Pradesh fell due on 30 -4 -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 followed with several reminders dated 5 -3 -2003, 3 -9 -2003, 17 -9 -2003 and 8 -12 -2003 but unfortunately the Government of Uttar Pradesh did not respond and further reminder was sent by the Government of India stating therein that four requests were made for the cadre review of the IAS cadre of Uttar Pradesh but no response was received from the Government of Uttar Pradesh. In the said letter the Government of India wanted a suitable direction from the officials concerned so that they could furnish the cadre review proposal by 28 -2 -2004. Unfortunately, there was no response and thereafter subsequent reminders were also sent by the Government of India on 14 -6 -2004/17 -6 -2004 and 8 -10 -2004. Ultimately, a proposal was received from the Government of Uttar Pradesh only in the month of January 2005 and immediately a preliminary meeting was fixed on 21 -2 -2005. Thereafter, a cadre review meeting was held under the chairmanship of the Cabinet Secretary on 20 -4 -2005 and the minutes duly signed by the Chief Secretary, Government of Uttar Pradesh were received on 27 -6 -2005. After approval was given to the said minutes, Notification was issued on 25 -8 -2005 refixing the cadre strength in the State of Uttar Pradesh. Challenging the said notification, some of the SCS officers approached this Tribunal by filing two OAs [OA No. 1097 of 2006 and OA No. 1137 of 2006] praying for quashing of the said notification and 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. In those OAs the principal contention raised by the SCS officers was that the last cadre review of the IAS in Uttar 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 to from April 2003 so that the SCS officers could be considered for promotion against the promotion quota. The stand of the State of Uttar Pradesh before the Tribunal was that with the issuance of Notification issued by the Department of Personnel and Training on 21 -10 -2000 bifurcating the cadre of undivided Uttar Pradesh to IAS, Uttar Pradesh and IAS, Uttaranchal upon the Uttar Pradesh Reorganisation Act, cadre review has already taken place and as such the next review was due in 2005 only. The stand of the Government of India and the UPSC before the Tribunal and before the High Court was that the cadre review was due in 2003. However, the Tribunal 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 OA No. 1097 of 2006 and partially allowed OA No. 1137 of 2006, inter alia, directing the respondents to convene the meeting of DPC Selection Committee to fill up the posts which were not filled up in the years 2001, 2002 and 2004 and to consider all eligible SCS 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. However, the aggrieved parties challenged the said order of the Tribunal and filed a writ petition before the Hon'ble High Court on 18 -12 -2006 contending therein that the cadre review of the IAS 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 SCS officers were deprived of their promotion to the IAS. Their specific stand in the writ petition was that if the increased vacancies were available in 2004 as a result of the cadre review in 2003, they could have been promoted to IAS. However, before the High Court the stand of the Central Government was that the cadre review of the IAS of Uttar Pradesh cadre was due in 2003 but unfortunately it was held in 2005 when the State of Uttar Pradesh had sent its proposal. Such review was made effective from 25 -8 -2005 when the revised cadre strength of the IAS cadre of Uttar Pradesh was notified in the Official Gazette in terms of the statutory provisions. Their further stand was that the cadre review undertaken in 2005 cannot be given retrospective effect. In the mean time, Uttar Pradesh Government took the stand that they have no objection to any direction for exercise of cadre review to be undertaken with reference to the vacancy position as on 1 -1 -2004. The High Court set aside the judgment of the Tribunal dated 15 -12 -2006 and the Notifications dated 1 -2 -2006 and 25 -8 -2005. The State and Central Governments were directed that the cadre review exercise should be undertaken as if it was taking place on 30 -4 -2003 with reference to the vacancy position as on 1 -1 -2004.