Central Engineering Service ... vs The Union Of India And Others
2008 Latest Caselaw 2166 Del

*         HIGH COURT OF DELHI : NEW DELHI

+         Writ Petition (Civil) No. 2562 of 2002

                     Judgment reserved on: July 7, 2008

%                    Judgment delivered on: December 5, 2008

1.   Central Engineering Service Class I (DR) Association
     Through its Additional Secretary

2.   Umesh Bansal
     S/o J.P. Bansal
     K-1, Indraprastha Apartments
     Patparganj, New Delhi - 92

3.   Sunil Sharma
     S/o J.P. Sharma
     28, Prashanth Apartments
     Patparganj, New Delhi - 92

4.   Mohammed Sagheer
     S/o M.K. Usman
     TH-11, CPWD Transit Hostel
     Aliganj, Jorbagh, New Delhi - 3               ...Petitioners
                      Through Mr. P.P. Rao, Senior Advocate with
                               Mr. V.K. Rao, Mr. Ayushya Kumar &
                               Mr. Arun Dhiman, Advocates

                     Versus

1.   The Union of India
     through
     (1A) The Secretary
           Ministry of Urban Affairs & Employment
           Nirman Bhawan, New Delhi - 1

     (1B) The Secretary
          Department of Personnel & Training
          North Block, New Delhi - 1

WP (C) Nos.2562/2002 & 489/2000                             Page 1 of 29
 2.   Director General (Works)
     Central Public Works Department
     Nirman Bhawan, New Delhi - 1

3.   The Chairman
     Union Public Service Commission
     Dholpur House, New Delhi - 11

4.   Central Administrative Tribunal
     Through its Registrar
     Principal Bench
     Faridkot House, New Delhi - 1

5.   Shri B.M. Singhal
     S/o late Shri Jyoti Prasad
     C-11/158, Yamuna Vihar, Delhi

6.   Shri S.K. Jain
     S/o Shri S.L. Jain
     R/o 4/1712, Mittal Sadan
     Bhola Nath Nagar, New Delhi.

7.   Ashwini Kumar
     OC, Costrn Squadron
     National Security Guards
     CGO Complex, Lodhi Road
     New Delhi - 3.

8.   P.K. Dixit
     Executive Engineer
     Indore Central Dn, CPWD
     Indore.                                       ...Respondents
                     Through Mr. H.K. Gangwani, Advocate for
                             Respondent No.1
                             Mr. P.P. Khurana, Senior Advocate
                             with Mr. Sachin Sood and Mr. Vikram
                             Saini, Advocates for Respondents
                             No.5 and 6

                               WITH

WP (C) Nos.2562/2002 & 489/2000                         Page 2 of 29
           Writ Petition (Civil) No. 489 of 2000

     V.K. Jain
     724, Laxmibai Nagar
     New Delhi-110023.                           ...Petitioners
                    Through Mr. P.P. Rao, Senior Advocate with
                            Mr. V.K. Rao, Mr. Ayushya Kumar &
                            Mr. Arun Dhiman, Advocates

                     Versus

1.   The Union of India
     through
     The Secretary
     Ministry of Urban Affairs & Employment
     Nirman Bhawan, New Delhi -110011.

2.   Secretary
     Union Public Service Commission
     Shahjehan Road
     New Delhi-110011.

3.   Shri B.M. Singhal
     C/o Mr. Sohan Lal, Advocate
     C-6/244, Yamuna Vihar
     Delhi-110053.                                  ...Respondents
                     Through Mr. H.K. Gangwani, Advocate for
                               Respondent No.1
                               Mr. Sandeep Sethi, Senior Advocate
                               with Mr. Sachin Sood and Mr. Vikram
                               Saini, Advocates.


Coram:

HON'BLE MR. JUSTICE MADAN B. LOKUR
HON'BLE MR. JUSTICE J.R. MIDHA


1. Whether the Reporters of local papers may

WP (C) Nos.2562/2002 & 489/2000                           Page 3 of 29
      be allowed to see the judgment?                                Yes

2. To be referred to Reporter or not?                               Yes

3. Whether the judgment should be reported                          Yes
   in the Digest?

MADAN B. LOKUR, J.

The rather limited question for our consideration is: Whether,

in exercise of the power of relaxation conferred by statutory rules, the

Central Government is entitled to divert vacancies, en bloc, belonging to

the quota of direct recruits to the quota of promotees, in order to

regularize their promotion? Given the facts and circumstances of the

case, as well as the legal position, our answer to this question is in the

affirmative.

2. The aggrieved parties before us are directly recruited

Assistant Executive Engineers (Civil), Class I (for short AEEs) whose

quota of vacancies for promotion to the grade of Executive Engineer

was diverted in favour of Assistant Engineers (for short AEs).

Broad facts of the case:

3. The statutory rules that we are concerned with are presently

called the Central Engineering Service Group „A‟ Recruitment Rules,

1954 (for short the 1954 Rules). The power to relax the statutory rules is

conferred upon the Central Government by Rule 25 of the 1954 Rules

and this reads as follows:-

"25. Power to relax: Where the Central Government is of opinion that it is necessary or expedient to do so, it may, by order, relax, in consultation with the Union Public Service Commission, any of the provisions of these Rules with respect to any class or category of persons."

4. At this stage, it may be mentioned that the Ministry of Urban

Affairs and Employment (Department of Urban Development), Central

Engineering (Civil) Group „A‟ Service Rules, 1996 (for short the 1996

Rules) superseded the 1954 Rules. However, as far as we are concerned,

this is of no serious consequence for answering the question that we

have set out above. We shall, however, be dealing with the alleged

impact of the 1996 Rules.

5. Rule 3 of the 1954 Rules provides for recruitment to the

Central Engineering Service, Class I, by a competitive examination, by

promotion and by transfer. The posts that we are concerned with are of

Executive Engineer (Civil), Class I, and they can be filled up by

promotion of directly recruited Assistant Executive Engineers, Class I

(AEEs) and by promotion of Assistant Engineers (AEs). AEs who can

be considered for promotion as Executive Engineers, include both

graduate engineers as well as diploma-holders.

6. The 1954 Rules provide a quota for filling up the posts of

Executive Engineer, Class I. As the 1954 Rules originally stood, 75% of

the vacancies were to be filled up by promotion of AEEs and the rest by

promotion of AEs. However, this quota underwent changes on more

than one occasion but we are not really concerned with the amendments

made. Suffice it to say that even though direct recruitments were said to

have been made to the post of AEEs on a yearly basis, there remained a

substantial shortfall of AEEs available for promotion to the grade of

Executive Engineer, Class I. The result of this was that to keep the work

going, the Central Government promoted AEs as ad hoc Executive

Engineers. The promotions made were quite disproportionate to the

quota and the fall-out of this was that many of the AEs continued as ad

hoc Executive Engineers and even retired as such without the benefit of

regularization.

7. As one would expect, promotions of AEs in excess of their

quota led to litigation, but our attention has particularly been drawn to a

decision of the Supreme Court in J.N. Goel & others v. Union of India

& others, (1997) 2 SCC 440. What happened in that case was that

graduate AEs had challenged, before the Central Administrative

Tribunal, the entitlement of diploma-holder AEs for ad hoc promotion

as Executive Engineers, inter alia, on the ground that the educational

qualification postulated by Rule 21(3) of the 1954 Rules did not permit

it. During the pendency of the challenge, the Central Government

retrospectively incorporated a proviso to Rule 21(3) of the 1954 Rules

to the effect that a diploma-holder AE having an outstanding record and

ability could be promoted as an Executive Engineer in relaxation of the

educational qualification required. This was also challenged before the

Central Administrative Tribunal (for short the Tribunal).

8. While upholding the proviso, the Supreme Court noticed that

the 1996 Rules had come into force, but observed that they were

prospective in operation and that the promotions made prior to the

promulgation of the 1996 Rules would be governed by the 1954 Rules.

The Supreme Court concluded:

"The promotion of diploma-holder Assistant Engineers who have been promoted on the post of Executive Engineer on ad hoc basis, will have to be reviewed by the authorities and regular promotions against vacancies which occurred prior to the promulgation of the 1996 Rules will have to be made in accordance with the 1954 Rules."

9. Apparently taking a cue from the observations of the

Supreme Court, the Central Government decided to undertake a

wholesale review of ad hoc promotions made to the grade of Executive

Engineer and to regularize the services of the incumbents. There was

some correspondence between the Ministry of Urban Development and

the Union Public Service Commission (for short UPSC) in this regard.

But finally, the proposed action was justified by the Secretary in the

Ministry of Urban Development in his letter dated 4 th June, 1999

addressed to the Chairman of the UPSC. The salient points mentioned in

the letter are to the following effect:

a. There has been consistent under recruitment of AEEs to fulfill their quota. Consequently, AEs have been promoted in excess of their quota on an ad hoc basis to carry on the work of the department. (Paragraph 2).

b. The existing arrangements have led to frustration amongst ad- hoc Executive Engineers, many of whom have retired without any benefit of regularization. (Paragraph 3).

c. To abolish the ad hocism, to wipe out the huge backlog of vacancies and to operate the 1996 Rules on a clean slate, a

one-time relaxation of the 1954 Rules is necessary. There is no alternative but to regularize the ad hoc promotion of AEs who have been working as Executive Engineers for more than 10 years. (Paragraph 4).

d. This is a conscious and deliberate policy decision of the government to streamline the cadre management of the CPWD to facilitate the smooth working of the department. (Paragraph

5).

e. "The proposed course of action shall not in any manner whatsoever adversely affect the interest of AEEs." (Paragraph

6)

f. "In fact the promotion of AEEs in future shall also not be delayed for want of their quota vacancies." (Paragraph 6).

10. On the basis of the above, the UPSC accorded approval to

the Central Government to divert 430 vacancies falling under the

promotion quota of AEEs (Civil) in the CPWD to the promotion quota

of AEs by relaxation of the 1954 Rules, with retrospective effect over a

period of three years, that is, 1994-95 to 1996-97 upto 28th October,

1996.

11. Soon thereafter, the Central Government exercised the power

of relaxation conferred on it by Rule 25 of the 1954 Rules and issued the

following Office Memorandum on 6th July, 1999:

"No 30/5/98-EC-I/EW-1 GOVERNMENT OF INDIA MINISTRY OF URBAN DEVELOPMENT

New Delhi, the 6th July, 1999.

OFFICE MEMORANDUM

Subject: Diversion of backlog vacancies from AEE's quota to AE's quota for promotion to the grade of EE (C) and EE (Elect.)

As per provisions of 1954 Rect Rules, promotion to the post of EE in the CPWD is made from two sources namely, the AEEs Group-A and AE‟s Group-B in the following ratio prescribed from time to time.

AEE AE

Revised RR's were promulgated on 29.10.96. The AEE‟s were not available in adequate number to fill up their quota vacancies which resulted in backlog in the quota of AEE‟s and corresponding excess in the promotion of AE‟s on adhoc basis against such quota. The backlog in the quota of AEE‟s till 28.10.96 was 430 in case of Civil and 120 in the case of Electrical. After careful consideration the Govt. has in exercise of the powers conferred under Rules 23/25 of the Central Engineering Service, Group A, Recruitment Rules, 1954 (SRO-1842) and rule 21 of the Central Electrical and Mechanical Engineering Service Group-A Recruitment Rules, 1954 (SRO-1843), decided to divert the said backlog of 430 vacancies in the quota of AEE‟s (C) and 120 in the

quota of AEE (E) to the Asstt. Engineer (Civil and Electrical) over a period of 3 years namely, 1994-95, 95-96 and 96-97 (upto 28.10.96) with a view to regularising the adhoc promotion of AE‟s working against these vacancies. This is subject to the condition that retired officers will also be considered, as per existing policy of the Govt. This issues with the approval of DPT vide their Dy. No. 337/US (RR-

1)/97 dt. 20.5.97 and UPSC vide their Lr. No. 11/11(3)98 - AP2 dt. 30.6.99.

Sd/-

(S.K. Bhatnagar) Under Secretary to the Govt. of India Tel. No. 3014151"

12. The aforesaid Office Memorandum was challenged by the

Petitioners in the Central Administrative Tribunal by filing O.A. No.

1968 of 1999. That O.A. came to be dismissed by an order dated 13 th

February, 2001. This order passed by the Tribunal is now under

challenge before us in WP(C) No. 2562 of 2002.

13. A perusal of the order dated 13th February, 2001 shows that

the Tribunal relied, inter alia, on its earlier decision in O.A. No. 2134 of

1999 (V.K. Jain v. Union of India & ors) decided on 6th January, 2000.

The decision rendered in V.K. Jain is under challenge before us in WP

(C) No. 489 of 2000. Both writ petitions were heard together and the

present decision will govern both of them.

What is the effect, if any, of the supersession of the 1954 Rules?

14. Learned counsel for the Petitioners contended that the 1954

Rules having been superseded by the 1996 Rules, the Central

Government could not exercise the power of relaxation conferred by

Rule 25 of the 1954 Rules because it was no longer available to it.

Therefore, it was submitted that the diversion of vacancies was without

jurisdiction.

15. Our attention was drawn by learned counsel to paragraphs 65

and 66 of State of Orissa v. Titaghur Paper Mills Co. Ltd. 1985 Supp

SCC 280. It was submitted on the basis of this decision that the effect of

supersession of the 1954 Rules by the 1996 Rules is that the 1954 Rules

have been wiped off from the statute book and replaced by the 1996

Rules. Consequently, the power of relaxation conferred by Rule 25 of

the 1954 Rules can no longer be of any assistance to the Central

Government.

16. Reliance was also placed on Gajraj Singh v. STAT, (1997) 1

SCC 650 particularly paragraphs 22 and 29 of the Report to submit that

when an Act of Parliament is repealed, "it must be considered, except as

to transactions past and closed, as if it had never existed. The effect

thereof is to obliterate the Act completely from the record of Parliament

as if it had never been passed; it never existed except for the purpose of

those actions which were commenced, prosecuted and concluded while

it was an existing law." The effect that repeal has on vested rights and

inchoate rights has also been discussed in that decision.

17. Finally, reference was made to India Tobacco Ltd. v. CTO,

(1975) 3 SCC 512 which says much the same as Gajraj Singh, the point

being made that for all intents and purposes the 1954 Rules do not exist.

18. We do not agree with the view canvassed by learned counsel.

In the first instance, we are concerned only with the promotions made

pre-1996. Those promotions could be governed and were governed only

by the 1954 Rules and not by any other rule. Apart from the fact that this

is quite natural, it was also made explicit by the Supreme Court in J.N.

Goel. In paragraph 8 of the Report, it was observed:

"Since the 1996 Rules are prospective in operation, the

promotions made prior to the making of the 1996 Rules would be governed by the 1954 Rules ....."

Similarly, in paragraph 15 of the Report, the Supreme Court reiterated

its view in the following words:

"The promotion of diploma-holder Assistant Engineers who have been promoted on the post of Executive Engineer on ad hoc basis, will have to be reviewed by the authorities and regular promotions against vacancies which occurred prior to the promulgation of the 1996 Rules will have to be made in accordance with the 1954 Rules. Regularisation of diploma- holder Assistant Engineers who are working as Executive Engineers on ad hoc basis against vacancies which occurred after the promulgation of the 1996 Rules will have to be made in accordance with the provisions of the 1996 Rules."

19. Secondly, the 1996 Rules make it clear that though they

supersede the 1954 Rules, they do so "except as respects things done or

omitted to be done before such supersession". One of the things done by

the Central Government under the 1954 Rules was to make promotions

of AEs as Executive Engineers far in excess of their quota. This resulted

in an anomalous situation in as much as a large number of AEs could

not be regularized as Executive Engineers in spite of having worked as

such for more than 10 years (some of them even retired as ad hoc

Executive Engineers) and this naturally bred frustration amongst them.

The mandate of the Supreme Court in J.N. Goel was to rectify this

situation with reference to ad hoc diploma-holder AEs. But, this was

not possible without taking into consideration similar aspirations of the

graduate AEs, who could not (obviously) be left out in the cold. It was

to set right the anomalous situation caused by the omission of the

Central Government to adhere to the quota that it had to resort to Rule

25 of the 1954 Rules, there being no other alternative or viable option.

20. Effectively, therefore, all that the Central Government has

done is to acknowledge the existence of a complex situation of its own

making; appreciate the need to rectify it in terms of the observations of

the Supreme Court in J.N. Goel; utilize the power available to it under

Rule 25 of the 1954 Rules; and, correct the course of events caused by

"things done or omitted to be done" by it. In our opinion, on the plain

language of the 1996 Rules, this power was available to the Central

Government under the 1954 Rules in respect of pre-1996 promotions.

21. The matter may be looked at from another point of view.

Has any prejudice been caused to the Petitioners or have they been

adversely affected in any manner whatsoever? In this context, it is

necessary to advert to the letter dated 4 th June, 1999 addressed by the

Secretary in the Ministry of Urban Development to the Chairman of the

UPSC. In this letter, it is categorically stated that "The proposed course

of action shall not in any manner whatsoever adversely affect the

interest of AEEs. ...." Therefore, by correcting the course of events, no

prejudice has been caused to the AEEs. Indeed, as far as we are

concerned, nothing was shown to us to even remotely suggest that the

Petitioners were prejudicially affected. That being so, we fail to see the

grievance that any of the Petitioners could have to the remedial action

taken by the Central Government.

22. It was suggested by learned counsel for the Petitioners that

prejudice was caused to his clients in as much as their seniority was

adversely affected because there is no period specified for promotion of

AEEs (such as the Petitioners) to the post of Executive Engineer.

Theoretically, therefore, they could have been promoted on the very first

day that they joined the service and the diversion of vacancies has

denied this opportunity to them. This submission is mentioned only to

be rejected forthwith. No such case was ever put forward by the

Petitioners before the Tribunal and no instance has been brought to our

notice of any AEE having been promoted to the post of Executive

Engineer on the very day that he joined the service. The submission

seems to be entirely hypothetical and one of desperation by clutching at

a straw. In the absence of anything worthwhile or substantial, we are

not inclined to seriously consider the completely illusory and imaginary

situation set out by learned counsel.

23. Contrast this with the averment made by the Petitioners in

paragraph 19 of the writ petition. It is averred therein that:

"The Petitioners herein were directly recruited as AEEs (Civil) through the Competitive Examination for the Combined Engineering Services conducted by the UPSC during the years 1988 onwards. Accordingly, after completing the requisite qualifying service as per the 1954 Rules and as per the 1996 Rules (dealt with hereinafter), they were promoted as EEs (Civil) within their lawful quota."

24. To our mind, this clearly suggests that not only were the

Petitioners required to undergo a qualifying period of service for

promotion to the post of Executive Engineer, but that their promotions

were made under the 1996 Rules and not under the 1954 Rules. This

really confirms that the Petitioners have not been prejudicially affected

in any manner whatsoever.

25. The follow-up to the contention urged, in the larger canvas,

is that the 1996 Rules occupy the field and the Central Government

cannot resort to the 1954 Rules to remedy the situation. Even this

submission is without any substance. It is quite clear that the 1996 Rules

are prospective in nature (as held in J.N. Goel) and they do occupy the

field but only in so far as promotions post-1996 are concerned. It is

equally clear that for pre-1996 promotions, the 1996 Rules cannot be

made applicable - they are not retrospective and were not in existence

before 28th October, 1996. The only rules that could be considered for

application to pre-1996 promotions are undoubtedly the 1954 Rules and

it is only the power conferred by those rules that the Central

Government has invoked. If any other authority is needed for this

general proposition, one need only look at Y.V. Rangaiah v. J.

Sreenivasa Rao, (1983) 3 SCC 284. ["We have not the slightest doubt

that the posts which fell vacant prior to the amended rules would be

governed by the old rules and not by the new rules."]

26. Learned counsel submitted that Rule 7 of the 1996 Rules

dealing with future maintenance of the service would be the applicable

rule to deal with the situation that we are confronted with. With respect,

this is not correct. Rule 7 of the 1996 Rules deals with filling up of

vacant duty posts, by way of future maintenance of the service created

by the 1996 Rules. In the present case, the situation contemplated by

learned counsel does not at all arise because by the order dated 6 th July,

1999 all promotions of ad hoc AEs were regularized leaving no "vacant

duty posts" to be filled up. In fact, by virtue of their regularization, the

AEs became members of the Central Engineering (Civil) Group „A‟

Service on its initial constitution under Rule 6 of the 1996 Rules.

To sum up, there is no visible impact of the 1996 Rules on

the 1954 Rules as far as this case is concerned.

Does the power of relaxation enable diversion of vacancies?

27. The next submission of learned counsel for the Petitioners

was that assuming the Central Government was entitled to invoke the

1954 Rules, even then, Rule 25 thereof did not enable it to divert

vacancies from one category (AEEs) to another (AEs). It was also

submitted, in this context, that Rule 25 did not enable the Central

Government to alter the statutorily fixed quota applicable for

promotions to the post of Executive Engineers. It was further submitted

that the statutorily fixed quota could be altered only by amending the

1954 Rules, as had been done from time to time, and not by

administrative instructions.

28. The power of relaxation conferred by Rule 25 of the 1954

Rules is extremely wide. It enables the Central Government to relax any

provision of the 1954 Rules with respect to any category or class of

persons. Of course, this is possible only in consultation with the UPSC.

In this case, the power has been exercised by the Central Government

with respect to the entire category or class of AEs. What has been done

is to relax the provisions of the rules requiring filling up the posts of

Executive Engineer in a particular manner, that is, by relaxing the

adherence to a quota. This has been achieved, though in a slightly

circuitous manner, by diverting vacancies from the quota of AEEs to the

quota of AEs.

29. It is nobody‟s case that Rule 25 of the 1954 Rules confers

arbitrary powers or has been applied arbitrarily. Indeed, this cannot even

be the case of the Petitioners because there does appear to be adequate

justification for invoking the power of relaxation in its widest

amplitude. The power is available and has been used, inter alia, to

mitigate the hardship caused to a category or class of persons, many of

whom were not able to obtain the benefits of regularization even though

they had worked as Executive Engineers for as long as ten years and

many of them had even retired without reaping any such benefits.

30. Learned counsel for the Petitioners referred to Suraj Parkash

Gupta v. State of J&K, (2000) 7 SCC 561. This decision of the Supreme

Court is rather instructive but, in our opinion, it does not support the

absolute view canvassed by learned counsel, which is to the effect that

the power of relaxation given in Rule 25 of the 1954 Rules relates only

to relaxation of the conditions of service and not to relaxation of the

quota.

31. In the first place, as held in paragraph 31 of the Report, the

case was one of implied relaxation, though pertaining to relaxation in

the quota, but nevertheless one of implied relaxation, unlike in the case

that we are dealing with where the relaxation is specific. Secondly, the

Public Service Commission was not consulted, again unlike in the case

that we are dealing with. Thirdly, on facts, the relaxation was held to be

bad because of insufficient reasons given in the Cabinet note. In the case

that we are dealing with, there is no challenge to the relaxation on facts.

Fourthly and finally, Suraj Parkash Gupta itself recognizes that there

may be extraordinary situations warranting a departure from the general

rule laid down therein.

32. The Supreme Court held in Suraj Parkash Gupta that there

are various kinds of relaxation. For instance, there could be:

Relaxation of conditions of service,

Relaxation of rules,

Relaxation in any particular case,

Relaxation in favour of a person,

Relaxation in favour of a class of persons.

33. Reference was made by the Supreme Court to Narender

Chadha v. Union of India, (1986) 2 SCC 157 and although it was held

to be an exceptional case, the facts of that case as analyzed by the

Supreme Court are quite similar to the facts of the case that we are

dealing with. The Supreme Court noted that in Narender Chadha the

promotees occupied not only their own quota but also the direct

recruitment quota to some extent. They were held entitled to regular

promotion on the theory of implied relaxation of the recruitment rules to

all posts within and outside the promotion quota. Since the promotees

were not regularized for 15 to 20 years, it was held that their non-

regularization over such a long period violated Articles 14 and 16 of the

Constitution. The Supreme Court went on to say that the recent trend is

towards strict compliance of the recruitment rules.

34. Obviously, there can be no quarrel with the law laid by the

Supreme Court to the effect that Narender Chadha is to be treated as an

exception and not as a rule and that there should be strict compliance

with the recruitment rules, in matters such as the present. However, if

one compares this mandate with the facts of the case in hand, it is clear

that there was strict compliance in respect of the power of relaxation

under the 1954 Rules in as much as the Central Government consulted

the UPSC and only then took a decision. As already mentioned, the

rationale or justification for relaxation is not under challenge. However,

we may note that the rationale or justification given itself explains the

unusual situation faced by the Central Government.

35. What is the unusual situation that we are concerned with? As

explained in the letter dated 4 th June, 1999 sent by the Secretary in the

Ministry of Urban Development to the Chairman of the UPSC, the

unusual features are: there was consistent under-recruitment of AEEs; to

continue the (smooth or efficient) working of the department it was

necessary to promote AEs far in excess of their quota; non-

regularization of the services of the AEs led to frustration amongst

them; a situation arose whereby many of the Executive Engineers from

amongst the AEs continued in an ad hoc capacity for more than ten

years and many of them retired without even reaping the benefits of

regularization; there was a need to get rid of the ad hocism and operate

the 1996 Rules on a clean slate; for achieving this, a conscious and

deliberate policy decision was taken by the Central Government to

streamline the cadre management of the CPWD to facilitate the smooth

working of the department; and finally, the AEEs were not prejudiced in

any manner whatsoever. Taking all these aspects into consideration as

well as the fact that there was strict compliance with the procedure laid

down in the 1954 Rules, we are of the opinion that not only was an

extremely wide power of relaxation available to the Central

Government, but that it did right in exercising that power conferred by

the 1954 Rules. If in doing so, there was a change in the quota rule, it

was quite justified and permissible, if not inevitable. Moreover, given

the facts of the case, we are not inclined to upset the apple cart on this

ground alone.

36. Another decision referred to by the Supreme Court (though

distinguished by it) is that of G.S. Lamba v. Union of India, (1985) 2

SCC 604 wherein it was generally stated that the rule relating to

relaxation of any of the provisions also comprehends the rule relating to

quota. It is not normal, but is certainly possible in a given case, to relax

the quota rule should the situation so necessitate.

37. Could the Central Government alter the quota by executive

instructions, without amending the 1954 Rules? It is difficult to answer

the question in an absolute yes or an absolute no. As we have indicated

above, the power of relaxation conferred by Rule 25 of the 1954 Rules

is extremely wide. It is not hedged in by any substantive conditions,

only a procedural one. In that sense, the power can be used to alter the

quota. But, at the same time, the power cannot be used wantonly and

arbitrarily so as to emasculate the power of amendment. A middle path,

therefore, has to be taken. In the present case, the middle path was taken

by using the power of relaxation as a one-time measure and given the

exigencies of the situation. Normally, the appropriate course would have

been to amend the 1954 Rules to alter the quota, as was done from time

to time, but the same result was achieved by utilizing the power of

relaxation, without adversely affecting anybody‟s rights. Given the wide

power of relaxation, we cannot, on the facts of this case, find fault with

the course adopted by the Central Government.

38. Learned counsel for the Petitioners contended that when it

came to the crunch, the Central Government did have an alternative

available for dealing with excess promotions. In this, he may be right,

but it is really for the Central Government to decide what course of

action to adopt. The Central Government may, to keep the wheels of

administration moving, create ex-cadre posts, make ad-hoc

appointments, make supernumerary appointments or resort to other out-

of-the-way expedients, as observed in N.K. Chauhan v. State of

Gujarat, (1977) 1 SCC 308. Compulsions of the rules cannot go to the

extreme extent of requiring the Central Government to keep posts

vacant. As far as the present case is concerned, the Central Government

took a deliberate policy decision to regularize the promotions to

streamline the cadre management for facilitating the smooth working of

the department. This policy decision is certainly not arbitrary or

whimsical, nor has it been shown to be so.

39. Learned counsel further submitted that the Central

Government was obliged to follow the law and the principles laid down

by the Supreme Court in A.K. Subraman v. Union of India, (1975) 1

SCC 319 and P.S. Mahal v. Union of India, (1984) 4 SCC 545. There

can hardly be any doubt that the law and principles laid down by the

Supreme Court have to be followed and adhered to. But unfortunately,

learned counsel has been unable to demonstrate to us which principle

was not adhered to by the Central Government. At best, it can be argued

that the excess promotions made of AEs are irregular, but in the facts of

the case, they cannot be said to be totally illegal [V.B. Badami v. State

of Mysore, (1976) 2 SCC 901]. Even in this scenario, we have not been

told how any prejudice has been caused to the Petitioners either in the

pre-1996 situation or even post-1996. The submission, therefore, is

really of an academic nature and so we are not inclined to spend time on

it.

To sum up, we are of the opinion that Rule 25 of the 1954

Rules permitted diversion of vacancies.

Has the Central Government incorrectly understood J.N. Goel?

40. The final contention of learned counsel for the Petitioners

was that the Central Government did not correctly appreciate the

decision of the Supreme Court in J.N. Goel and, therefore, carried out

an exercise not mandated by that decision. We have dealt with this issue

above and do not feel the necessity of repeating ourselves. Suffice it to

say that it is correct that J.N. Goel did not concern itself with any

dispute involving AEEs - it was concerned only with issues relating to

graduate and diploma-holder AEs. It was for resolving that dispute that

the Supreme Court said that the promotion of diploma-holder AEs to the

post of Executive Engineer on an ad-hoc basis would have to be

reviewed. This direction of the Supreme Court could not be carried out

in isolation or by overlooking the rights, concerns and aspirations of

graduate AEs. It is this compulsion that necessitated a wholesale review

of the impact of ad-hoc promotions of AEs to the grade of Executive

Engineer, leading up to the Office Memorandum dated 6th July, 1999.

To conclude, the Central Government correctly appreciated

J.N. Goel particularly the principles laid down in that decision and

rightly acted on them.

Additional submissions:

41. Learned counsel for Respondent Nos. 5 and 6 (in WP (C) No.

2562 of 2002) raised certain additional submissions, such as that the

Petitioners were setting up a new case, which was not permissible; the

writ petition ought not to be entertained on the grounds of delay and

laches; and, the Petitioners have failed to implead necessary parties in

the writ petition. We are not taking any decision on any of these issues

because on the merits of the controversy, we find that the Petitioners

have made out no case for interference with the impugned order of the

Tribunal.

42. The writ petitions are dismissed. No costs.

                                             MADAN B. LOKUR, J



December 5, 2008                             J.R. MIDHA, J
ncg

Certified that the corrected copy
of the judgment has been
transmitted in the main Server.