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Promotion fundamental right:

SC R Sedhuraman Legal Correspondent

 New Delhi, March 24 The Supreme Court has ruled that governments at the Centre and states should “act as model employers” and that all eligible employees virtually had a “fundamental right” to promotion as guaranteed under Article 16 of the Constitution. A Bench comprising Justices RV Raveendran and Asok Kumar Ganguly made the clarification while directing the Centre and the Union Public Service Commission to grant promotion with retrospective effect to members of the Uttar Pradesh State Civil Service (SSC) who had been affected by a delay of more than two years in the cadre review following the creation of Uttaranchal (now Uttarakhand) in 2000. The cadre review meeting was held on April 20, 2005, instead of on April 30, 2003, mainly because the UP government did not respond to several letters sent by the Union Ministry of Personnel. The notification re-fixing the UP cadre strength was issued on August 25, 2005, and under the rules such notifications would only have prospective effect, not retrospective effect. The Centre and the UPSC contended that the statutory mandate of a cadre review exercise every five years “is qualified by the expression ordinarily” and as such it was not necessary to undertake it every five years. The Bench, however, did not buy this argument. “We hold that the statutory duty which is cast on the state government and the Central government to undertake the cadre review exercise every five years is ordinarily mandatory subject to exceptions which may be justified in the facts of a given case. “Surely, lethargy, inaction, an absence of a sense of responsibility cannot fall within the category of just exceptions,” the apex court ruled, obviously indicting the UP government for not responding to the Centre’s reminders. The court accepted the government’s arguments that Rule 4(2) did not have retrospective effect, but refused to interfere with the Delhi HC order which had, by using its special power under Article 142 of the Constitution, directed the Centre to “mitigate the hardship and denial of legitimate rights of the employees” in view of the “facts and circumstances of the case.” Not only did the government fail to discharge its statutory function, but also had not offered “any plausible explanation,” the Bench pointed out in the verdict, written by Justice Ganguly and delivered yesterday.

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