Delhi High Court
Pradeep Kumar Chakraborty & ... vs Union Of India And Others on 3 July, 2009
Author: A.K.Sikri
REPORTABLE
* IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) No. 4462 of 2008
Reserved On : May 15, 2009.
% Pronounced on : July 03, 2009.
Pradeep Kumar Chakraborty & Another . . . Petitioners
through : Mr. Vinay Kumar Garg, Advocate.
VERSUS
Union of India and Others . . . Respondent
through: Ms. Jyoti Singh with Mr. Ankur
Chibber, Advocates for the
Respondent No.6.
Mr. V.S.R. Krishna, Advocate.
Mr. A.K. Bharadwaj, Advocate for
the UOI.
CORAM :-
THE HON'BLE MR. JUSTICE A.K. SIKRI
THE HON'BLE MR. JUSTICE SURESH KAIT
1. Whether Reporters of Local newspapers may be allowed
to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the Judgment should be reported in the Digest?
A.K. SIKRI, J.
1. Two OAs, registered as 2105/2007 and 10.98/2007, were taken up by
the Central Administrative Tribunal together and decided vide its
judgment dated 26.05.2008. Finding no merit therein, those
applications were dismissed. There were as many as 19 applicants in
one OA and 2 in the other. Certain similarly situated persons had
also approached the Court for similar relief. Nine applications were
field by them, which were dismissed by the Tribunal on 26.05.2008.
Following the earlier judgment dated 26.05.2008, one of these OAs
was filed by the petitioners herein, i.e., OA No. 1540/2007, which
was filed by as many as 7 applicants against the dismissal thereof the
present writ petition is preferred. In these 9 OAs also, there were as
many as 51 applicants in all. However, only two petitioners have felt
aggrieved by the impugned orders. It appears that others have not
filed any petition challenging the aforesaid orders of the Tribunal.
The dispute relates to promotion of private respondents to the post of
Assistant Engineers.
2. The petitioners as well as private respondents are working in the
Civil Engineering Wing in the Ministry of Defence and thus they are
civilians in the Military Engineering Services (MES).
3. It is not necessary to go into the history of the Constitution of MES
established way back in the year 1923. Suffice is to mention that MES
Superintendent (Building & Roads) Grade - I and II Rules were
promulgated under proviso 2 of Article 309 of the Constitution.
There were enforced from 10.11.1983. These Rules envisage two
grades, i.e., Superintendent Grade - I and II. Insofar as the
appointment to Superintendent Grade -II is concerned, 90% posts are
to be filled up by way of direct recruitment and remaining 10% by
promotion, failing which by direct recruitment. Superintendent
Grade-I is a selection post to be filled to the extent of 87.5% by
promotion and remaining 12.5% by direct recruitment.
Superintendent Grade-II is a feeder cadre for promotion to
Superintendent Grade-I. Minimum three years service for
Superintendent Grade-II for those who are degree holders in
Engineering and 5 years service for Superintendent Grade-II, who are
diploma holder is the requirement stipulated in the Rules for making
them eligible for selection as Superintendent Grade-I.
4. Next higher post in the hierarchy, i.e., Assistant Engineer was
governed by the MES Assistant Engineer (B&R) and Assistant
Engineer (E/M) Recruitment Rules 1978. As per these Rules, post of
Assistant Engineer is a selection post to be filled up by promotion
from amongst Superintendents (B&R) Grade-I with 3 years regular
service in the Grade in the case of degree holders and 7 years regular
service in the grade, in the case of diploma holders. In both cases,
this service requirement is after having passed MES procedural
examination.
5. The petitioners are diploma holders, who were appointed as Grade-II
by way of direct recruitment on 29.11.1983 and 30.03.1987
respectively with the Chief Engineer, Shillong Zone, under the
Eastern Command.
6. Ministry of Urban Development, Government of India issued
Circular dated 22.03.1991, whereby two scales of pay for Junior
Engineers/Sectional Officers working in CPWD were prescribed.
They were to be placed in the pay scale of Rs.1400-2300/-, which was
to be treated as entry grade. The completion of 5 years service in the
entry grade such Junior Engineers were entitled to be placed in the
next higher grade. This higher scale, however, was not to be treated
as promotional one, but is considered to be non-functional.
Therefore, it is specifically stipulated that benefit of FR 22 will not be
admissible while fixing the pay in the higher grade and there will be
no change in duties and responsibilities. Decision contained in the
said communication dated 22.03.1991 also provides that Junior
Engineer who could not be promoted to the post of Assistant
Engineer in the scale of Rs.2000-3500/-, due to non-availability of
vacancies in the said grade, they would not be allowed the pay scale
of Rs.2000-3500/- on personal basis, after completion of 15 years total
service as Junior Engineer. This personal promotion is given on
fitness basis and they are to be adjusted in the cadre of Assistant
Engineer as and when regular vacancies arise.
7. Rules were amended in 2001. All these Junior Engineers are now
entitled to be considered for promotion to the post so Assistant
Engineers on completion of three years if they are graduates and for
diploma holders, requirement of completing seven years service is
prescribed.
8. Certain Superintendent Grade-II working in MES, Southern
Command approached the Bangalore Bench of the Central
Administrative Tribunal claiming the functional and other parities
with the Junior Engineers in CPWD, who were given the aforesaid
benefits by decision dated 22.03.1991. They wanted the extension of
same benefits. In its judgment, Bangalore Bench accepted their plea
and directed that same benefits as provided to the Junior Engineers
of CPWD be extended to Superintendent Grade-II working in MES.
This judgment of the Bangalore Bench was accepted by the official
respondents by issuing the orders dated 25.04.1996. Reading of this
order shows that it is on the same terms on which the benefits were
given to Junior Engineers working in CPWD vide Circular dated
22.03.1991. With this, Superintendent Grade-II have also been given
the entry grade of Rs.14.00-2300/-, non-functional higher grade of
Rs.1640-2900/- after the expiry of 5 years and grade of Rs.2000-3500/-
, which is the grade of Assistant Engineer after the expiry of 15 years
in case they are not promoted to the said post in the meantime. The
petitioner and the private respondents had obtained the benefits of
the above orders. After rendering 15 years of service all of them
apparently have received the grade of Assistant Engineers, but not
accommodation in regular promotional posts.
9. Some quarries were raised by the Chief Engineers of certain
Commands on the implementation of the aforesaid decision, which
were clarified by the Army Headquarters, Engineer-in-Chiefs Branch
vide its communication dated 24.06.1996. It was inter alia in this
communication that with the issuance of Circular dated 25.04.1996,
distinction between the Superintendent (B & R/E & M) Grade - I and
Grade -II and between the Surveyor Assistant Grade-I and Grade-II
was eliminated. Thereafter, Ministry of Defence issued the orders
dated 09.307.1999 re-designating the Superintendents (B&R/E&M)
and Surveyor Assistants of MES. This re-designation provided in the
following terms.
"With the grant of time bound pay up-gradation to the
Superintendents B&R/E&M and Surveyor Assistant of Military
Engineer Services at par with the Junior Engineers of CPWD vide
this Ministry's letter No. PC-90237/4603/EIC (Legal)/1993/D
(Works) dated 15.04.1996 and No. 85605/RR/B & R
I&II/CSCC/3040/D(Works) dated 31st July 1998, I am directed to
convey the sanction of the President for re-designation of these posts
as under:-"
Name of Posts To be redesignated as
(a) Superintendent B&R Gde II Junior Engineer (Civil)
Rs.1400-2300. Rs.1400-2300 (entry grade)
(revised Rs.5000-8000) (revised Rs.5000-8000)
Superintendent B&R Gde I Rs.1640-2900 (After 5 years)
Rs.1640-2900 (revised Rs.55500-9000)
(Revised Rs.5000-8000) Rs. 2000-3500 (after 15 years)
(revised Rs. 6500-105000)
(b)Superintendent E&M Gde II Junior Engineer (Electrical &
Rs.1400-2300 Mechanical)
(revised Rs.5000-8000) Rs.1400-23000 (Entry Grade)
Superintendent E&M Gde I (revised Rs.5000-8000)
Rs.1640-2900 Rs.1640-2900 (after 5 years)
(revised Rs.5500-9000) (revised Rs.5500-9000)
Rs. 2000-3500 (after 15 years)
(revised Rs.6500-10500).
(c) Surveyor Assistant Gde II Junior Engineer (Quantity
Rs. 1400-2300 Surveyor & Contracts)
(revised Rs.5000-8000) Rs.1400-2300 (entry grade)
Surveyor Assistatn Gde I (revised 5000-8000)
Rs.1640-2900 Rs.1640-2900 (after 5 years)
(revised Rs.5500-9000) (revised Rs.5500-9000)
Rs.2000-3500 (after 15 years)
(revised Rs.6500-10500)
10. The aforesaid orders were, however, amended by subsequent orders
dated 19.01.2000 making certain corrections, which are not material
for our purposes. Though while extending the benefit of judgment of
the Bangalore Bench of the Tribunal, orders were passed on
25.04.1996 and as a consequence, it was also clarified vide orders
dated 24.06.1996 that with the implementation of the said judgment
distinction between Superintendent Grade I and II stood eliminated
and subsequently, the nomenclature in the MES was changed by
redesignating all these Superintendents in various categories as
Junior Engineers, no corresponding change was made in the 1983
Recruitment Rules immediately. Such an amendment in the
Recruitment Rules was brought about only on 30.04.2001 when
Notification in exercise of powers confirmed by the proviso (ii) of
Article 309 of the constitution was issued. Vide this Notification,
1983 Rules were superseded and substituted by new Rules called the
Military Engineers Services, Junior Engineer (Civil) and Junior
Engineer (Electrical and Mechanical) Recruitment Rules, 2001. In a
sense, the change that was brought about was the merger of
Superintendent (B&R) Grade I and II and Superintendent (E&M)
Grade I and II and they were redesignated as Junior Engineer (Civil)
and Junior Engineer (E&M) respectively.
11. On the elimination of distinction between Grade I and II, certain
consequences followed insofar as further promotions of the petitioner
and private respondents are concerned. As mentioned above, the
petitioners were appointed as Superintendent (B&R) Grade II on
29.11.1983 and 30.03.1987 respectively. They are the diploma holders.
Private respondents on the other hand are degree holders. Under the
1983 Rules, next promotion was to the post of Superintendent (B&R)
Grade I. As noted above for diploma holders, 5 years service in
Grade II and for degree holders, 3 years services in Grade II was
required for promotion to Grade-II. With the obliteration of any
distinction between Grade I and II and re-designation as Junior
Engineer, some of these degree holders approached the Principal
Bench of the Tribunal, New Delhi by means of filing OA No.
1124/2005 seeking a direction to consider their case for promotion to
the post of Assistant Engineer (Civil), since all of them had put up the
requisite three years service which was the qualification laid down
for the Junior Engineer degree holders. This OA was decided vide
orders dated 10.03.2006 issuing the directions to the Official
respondents to consider their cases for promotion by holding a
review DPC. The review DPC was held and those Junior Engineers
were promoted as Assistant Engineers.
12. The petitioners herein as well as other diploma holders felt aggrieved
by the aforesaid promotion of the private respondents to the post of
Assistant Engineers on regular basis. They argued that they were
senior to the applicants in OA NO. 1124/2005 and were ignored for
promotion and juniors were promoted as Assistant Engineer. They
also contended that in OA No. 1124/2005, the applicants had not
impleaded them as parties. Therefore, they are not bound by the
directions given in the said case and had right to argue that those
directions were wrongly given. The question of law, which was
raised before the Tribunal by these petitions, diploma holders
including present petitioners was that even if Bangalore Bench's
judgment was implemented vide orders dated 25.04.1996 and posts
were redesignated by orders dated 09.07.1999, new Recruitment
Rules came into force only on 30.04.2001. Therefore, date of merger
of the two grades, viz., Superintendent Grade-I and II could only be
30.04.2001 as till these Rules were promulgated Rules of 1983 held the
field, as per which two grades remained separate. Submission in this
behalf was that merely by administrative orders passed on 25.04.1996
or 09.07.1999, there could not have been an amendment to the
statutory rules. Arguments before us remain the same.
13. The question which, therefore, fell for determination before the
Tribunal was as to which is the date of merger. It is to be taken of
24.06.1996 when the judgment of Bangalore Bench was implemented
and on introduction thereof it was categorically clarified on that date
that there would be no distinction between the Grade I and II. Or
else, it is to be taken as 09.07.1999 when there was redesignation of
the post of Superintend Grade II and I that of Junior Engineer with
the sanction of the President. Or the relevant date would be
30.04.2001 when the Recruitment Rules were formally amended.
Obviously, the outcome of the case depends upon the answer to this
controversy.
14. The Tribunal before answering this question also took note of certain
disputes about seniority agitated before Jodhpur Bench and
Chandigarh Bench and the decision rendered therein. These facts are
noted in Paragraph Nos. 10-11 in the impugned judgment in the
following manner:
"10. In the matter of fixation of seniority by this time
applications had been filed before Jodhpur Bench and
Chandigarh Bench. It was at the above point of time that one
Chand Singh had filed OA 339 of 2004 before the Chandigarh
Bench of the Tribunal. He claimed that he had been appointed as
Superintendent Grade I on 26.02.1997 and after seven years of
service, he was entitled to be promoted as Assistant Engineers
and persons who were promoted overlooking him did not have
the qualifying service and, therefore, promotions given to
ineligibles were to be cancelled. The Tribunal came to hold that
promotions offered to some such persons were illegal and the
case of the applicant was to be taken up as he had a sustainable
point, and a prior right for being considered for promotion.
10. This appears to have triggered further litigations. The private
respondents here had come up with a similar claim they contending
that after three years of working as Junior Engineers in the merged
position, they were entitled to promotion as Assistant Engineers, being
graduates as warranted by the 1978 rules. Although the Bench had
noticed that new Recruitment Rules after the decision of the Bangalore
Bench had come to operation in the year 2001 alone, nevertheless taking
notice of the purport of the 1978 rules, which provided for promotion of
eligibles, the applicants were held as entitled to be considered for
promotion. There were no private respondents in the array of parties.
The above decision had resulted in the convening of a revised DPC and
the impugned orders had come to be issued."
15. Taking note of the aforesaid judgments of the different Benches in
the aforesaid cases as well as other attendant factors and material
on record, the Tribunal held that merger of Superintendent Grade
II and I had taken placed on 09.07.1999 with a Presidential Order.
It rejected the contention of the private respondents who had
suggested that the date of merger should be 24.06.1996. It also did
not accept the argument of the petitioners that the date of merger
should be treated as on promulgation of Rules in 2001. The
position in this regard is explained in the following manner in its
judgment:
"13. A merger of Superintendents Grade II and Grade I has
taken place, on 9.7.1999 with a Presidential Order and this
position is indisputable although there is an attempt to suggest
that alternatively to the contentions raised, the date is to be
adjudged as 24.06.1996, the date of order of the Chief Engineer. It
may relate back to that date, it is argued because of the order
dated 19.01.2000, but, however, it does not appear to be correct.
Following the order of Chief Engineer, further proceedings
required to be introduced. There was no Superintendent Grade II
and Grade I after 1999, as the posts were redesignated. We do
note that reliance had been placed on certain orders where
reference to such designations were nevertheless made, but we
feel that it can only be for convenience and for nothing else, and
as recognized by the 2001 rules, the date of merger can be only
July, 1999.
14. Therefore, as of now, we have to take notice on the
stipulations in special rules governing the category of Assistant
Engineers to appreciate the veracity of the arguments. A
common sense approach would be to assume that the
Superintendent Grade I referred to therein has to be understood
as a Junior Engineer, and those who are in the higher pay scale of
Rs.1640-2900 to make it sensible. The contra argument would be
too technical and would not advance the cause of justice. When
the nomenclature, superintendent Grade I is discontinued, there
cannot be a vacuum, and the replaced designation fits to the bill.
The strictness attached to the supremacy of statutory rules vis-à-
vis executive instructions has little application or relevance here.
When statutory rules were later on amended in the year 2001, by
SRO 78 Notification dated 30.04.2001 (Annexure 6) the schedule
to the rule also referred to the change of the designation that had
been brought in . Note-I specifically refers to the circumstance in
the following manner:-
"Note-I. Erstwhile post of Superintendents (B/R) Grade-I
and Superintendents (B/R) Grade-II have been redesignated
as Junior Engineers (Civil) vide Ministry of Defence letter
No. 85605/RR/B/R-I and II CSCC/2742/D (Works) dated
9.7.1999 as amended vide letter NO. 85605 dated 19.1.2000."
15. Therefore, recognition of a claim of a Junior Engineer as
equal to one, earlier designated as Superintendent-I could not
have been violent, irregular or illegal. The orders of the
Bangalore Tribunal as confirmed by the Supreme Court, had
become final. The special rules are required to be understood
and applied in the background of the judicial pronouncement.
Thus when the private respondents had shown that they have
become eligible as per the purport of the special rules for
promotion and when this position was duly recognized by a
Bench of this Tribunal, the consequential orders passed by the
respondent, impugned in the present applicants, are to be
deemed as valid and regular. The relevant date for assessment of
eligibility is 09.07.1999 as positively suggested even by the Rules
of 2001, and the claim of the graduate Junior Engineer that he
became eligible for promotion after putting in three years in the
higher grade for being promoted to the post of Assistant
Engineer was straightforward. The interpretive process, which
ignores the apparent, and compels one to grope in darkness by
sticking on to technicalities, will be rather outdated. The
promotion was, therefore, regular, especially since the applicants
were yet to attain promotability."
16. Submission of the learned counsel for the petitioner, as noted
above, was that the date of 09.07.1999 was clearly erroneous as the
Recruitment Rules were framed only in the year 2001. Before the
new Recruitment Rules were framed and came into force on
30.04.2001, earlier Rules of 1983, which are of statutory nature,
prevailed and could not have been superseded by the
Administrative instructions. Hence, there could not be any
merger contrary to the Recruitment Rules of 1983. He referred to
the following judgment in this behalf:
a) Sant Ram Sharma v. State of Rajasthan and Anr., AIR
1967 SC 1910
b) O.P. Lather and others v. Satish Kumar Kakkar and
Others, 2001 (3) SCC 110(para 9 to 11),
c) 2001(5) SCC 482 (para 7), Dr. Rajinder Singh v. The State
of Punjab & Ors.
d) 2005(8) SCC 394 (para 28), Union of India (UOI) through
Govt. of Pondicherry and Anr. v. V. Ramakrishnan and
Ors.
e) 2008(4) SCC 171 (para 13), Dhananjay Malik and Ors. v.
State of Uttaranchal and Ors.
He also submitted that statutory rules were to be strictly followed as
held in Punjab Water Supply and Sewerage Board Vs. Ranjodh Singh
and Others, 2007 (2) SCC 491 and merger of two posts could not be
done by non-statutory orders in view of law laid down by Supreme
Court in the case of Union of India and Another Vs. Central
Electrical and Mechanical Engineering Service (CE&MES) Group 'A'
(Direct Recruits) Asssn., CPWD and Others, 2008 (1) SCC 354. On
that basis, he argued that the promotion, which was given to the
private respondents was contrary to the Recruitment Rules of 1983
and was thus illegal. His further submission was that if Recruitment
Rules of 2001 are to be taken into consideration where-under both
Grades II and I became Junior Engineer (Civil), the matter was to be
considered as per letter dated 07.06.2003 issued by the UPSC. By that
letter, the UPSC had provided the mode of recruitment which is in
the nature of administrative instructions. In view of the vacuum of
feeder category for the 1978 Rules to the post of Assistant Engineer
after enactment of 2001 Rules which made the category of
Superintendent Grade I extinct, the UPSC had suggested that for
Superintending Grade-I who became Junior Engineer (Civil), the
required service was three years in case of degree holder and seven
years in case of diploma holder. However, none of the petitioners or
the private respondents belong to this category. For the other
category of Junior Engineer (Civil), namely, those who were
Superintendents Grade-II, this administrative instruction provides six
years regular service in case of those who hold degree such as the
private respondents and 10 years regular service for those who hold
diploma. The word "in the grade" does not mean in the grade of
Junior Engineer (Civil), buy in the feeder grade i.e. Superintendent
Grade - II. The UPSC is competent, under Rule 6 of 1978 Rules, to
suggest the mode of recruitment and this method of recruitment has
been verbatim incorporated in the 2001 Rules for the post of Assistant
Engineer.
17. The learned counsel also argued that it is held by the Supreme Court
that:
a) Method of recruitment/scheme/administrative
instructions can be framed by the UPSC (Smt. Swarn
Lata Vs. Union of India and Others, 1979 (3) SCC 165).
b) In the absence of Rules, the administrative instructions
filling the gap which later on finds place in the Rules can
be relied upon (Abraham Jacob Vs. Union of India and
Others, 1998(4) SCC 65.)
18. On behalf of the private respondents, Ms. Jyoti Singh and Mr.
Krishna supported the reasoning given by the Tribunal and
submitted that it was most equitable solution in the circumstances of
the case and the action taken by the official respondent was in
compliance with the directions of the Tribunal given in various
judgments. Therefore, promotion of the private respondent based on
those directions could not be faulted with. They extensively referred
to the judgment of the Bangalore Bench and the orders passed by the
Government from time to time implementing that judgment.
According to them, the effect thereof was to put an end to Grade-II
and Grade-I by merging them with redesignation as Junior Engineer,
at least from the date of Presidential order, i.e., 09.07.1999.
19. Mr. Bharadwaj, learned counsel for the official respondent was in a
quandary. It is because of the reason that though the OA filed by the
petitioners herein was opposed by the Government which position is
maintained in the counter affidavit to the present writ petition, as
well, in the written submissions the department has taken a
summersault and supported the case of the petitioners. In these
circumstances, (with family) would go by the stand of the
Government as taken before the Tribunal, which was the stand taken
before other benches of the Tribunal as well. More significantly
orders were passed by the Government in this behalf from time to
time, which reflected that the merger of Grade-II and Grade-I with
designation as Junior Engineer was contemplated on the
implementation of the judgment of the Bangalore Bench and in any
case on promulgation of the Presidential orders.
20. Factual position which emerges and is to be taken note for deciding
the controversy may again be recapitulated in brief. The trigger point
of the entire controversy is the implementation of the orders dated
31.03.1995 of the Bangalore Bench. In this judgment, following
directions were given:
"We further direct the respondents to grant higher pay scales as
that paid to JEs in CPWD n the scale of Rs.1640-2900/- to the
applicants in Grade-II Superintendents who as and when
complete 5 years of service in the grade w.e.f. 01.01.1986 and who
as and when complete 15 years of service in that grade the scale
of Rs.2000-3500/- w.e.f. 01.01.1991 on the same lines as contained
in the communication of MUD dated 21.03.1991 addressed to
DG (Works), CPWD as in Annexure A-II..."(emphasis supplied)
21. These orders of the Bangalore Bench were upheld by the Supreme
Court as SLP filed by the Union of India was dismissed. Thereafter,
the official respondents implemented the directions contained in the
judgment of Bangalore Bench by issuing orders dated 25.04.1996. By
these orders, for both the posts of Superintendent, viz., Grade-II and
Grade-I, entry Grade of Rs.1400-2300/- was specified and the higher
scale of Rs.1640-2900/- was to be given after completion of five years
service, which was to be non-functional and non-promotional with
clear stipulation that the benefit of FR 22(1) (a)(i) would not be
admissible. Likewise, on completion of 15 years of service, these
Superintendents including Superintendents Grade-II whether degree
holder or diploma holders, received the benefits of the aforesaid
orders. Thereafter, letter dated 24.04.1997 was issued. Intending the
merger, the two scales of Superintendents in Grade-I scale were
consolidated in one scale which came to be designated as the post of
Junior Engineer. It was followed by the Presidential orders dated
09.07.1999. It is not in doubt that in this manner on the
implementation of the judgment of the Bangalore Bench when orders
dated 25.04.1996 were passed, with distinction between the two
grades, viz., Grade-II and Grade-I was done away with. At the same
time, all persons belonging to Grade -I were enblocked placed senior
to those in Grade-II. However, formal redesignation of the two posts
into that of Junior Engineer was accorded vide orders dated
09.07.1999. This order enacted that Superintendent Grade-II were to
be redesignated as Junior Engineer (Civil) in the scale of Rs.1400-2300
(revised Rs.5000-8000/-). Superintendent Grade I was to be given the
scale of Rs.1640-2900/- after five years and was to be revised as
Rs.2000-3500 (revised Rs.6500-10,500/-) after 15 years. While all this
was done, Recruitment Rules of 1987 remained unamended. In these
Rules, nomenclature of only Superintendent Grade -II and Grade -I
was given. These Rules also provided promotions from Grade-II to
Grade-I. Though by that time, this designation had ceased to exist
and officials in both the grades came to be known as Junior Engineer
(Civil). It is obvious that under existing Rules, i.e., 1978 Rules further
promotions could not be made. Rules were formally amended only
in the year 2001when 1978 Rules were superseded and Rules of 2001
came into force with effect from 30.04.2001 vide SRO 1978
Notification of that date.
22. In this background, we have on the one hand Presidential Orders
dated 09.07.1999, whereby Superintendent Grade -I and Grade -II
were merged and the nomenclature was changed to Junior Engineer.
On the other hand, we have Notification dated 30.04.2001, which
provides for promotion of Junior Engineers to that of Assistant
Engineers. The Tribunal lebelled this as a "common sense approach"
and taken the view that if the date of notification, viz., 30.04.2001
treated as the date of merger, it would be too technical and would not
advance the cause of action. The reasoning goes as under:
"14. Therefore, as of now, we have to take notice on the
stipulations in special rules governing the category of Assistant
Engineers to appreciate the veracity of the arguments. A
common sense approach would be to assume that the
Superintendent Grade-I referred to therein has to be understood
as a Junior Engineer, and those who are in the higher pay scale of
Rs..1600-2900 to make it sensible. The contra arguments would
be too technical and would into advance the cause of justice.
When the nomenclature, Superintendent Grade-I is discontinued,
there cannot be a vacuum, and the replaced designation fits to the
bill. The strictness attached to the supremacy of statutory rules
vis-à-vis executive instructions has little application or relevance
here. When statutory rules were later on amended in the year
2001, by SRO 78 Notification dated 30.04.2001 (Annexure - 6) the
schedule to the rule also referred to the change of the designation
that had been brought in. Note-I specifically refers to the
circumstance in the following manner:-
"Note-I. Erstwhile post of Superintendents (B/R)
Grade-I and Superintendents (B/R) Grade-II have been
redesignated as Junior Engineers (Civil) vide Ministry of
Defence letter No. 85605/RR/B/R-I and II CSCC/2742/D
(Works) dated 9.7.1999 as amended vide letter No.85605
dated 19.1.2000."
15. Therefore, recognition of a claim of a Junior engineer as
equal to one, earlier designated as Superintendent-I could not
have been violent, irregular or illegal. The orders of the
Bangalore Tribunal as confirmed by the Supreme Court, had
become final. The special rules are required to be understood
and applied in the background of the judicial pronouncement.
Thus when the private respondents had shown that they have
become eligible as per the purport of the special rules for
promotion and when this position was duly recognized by a
Bench of this Tribunal, the consequential orders passed by the
respondents, impugned in the present applications, are to be
deemed as valid and regular. The relevant date for assessment of
eligible for promotion after putting in three years in the higher
grade for being promoted to the post of Assistant Engineer was
straightforward. The interpretive process, which ignores the
apparent, and compels one to grope in darkness by sticking on to
technicalities, will be rather outdated. The promotion was,
therefore, regular, especially since the applicants were yet to
attain promotability."
23. We find that the aforesaid view of the Tribunal serves substantial
justice and is most equitable in the facts and circumstances of the
case. It is not contrary to law as well, under the given
circumstances. No doubt, Rules for promotion were framed on
30.04.2001. But we find that due care is taken to meet the situation
by adding Note-I in the rules itself, thus forming it as a part of the
Rules. It reads as under:
"Note-I. Erstwhile post of Superintendents (B/R) Grade-I and
Superintendents (B/R) Grade-II have been redesignated as Junior
Engineers (Civil) vide Ministry of Defence letter No.
85605/RR/B/R-I and II CSCC/2742/D (Works) dated 9.7.1999 as
amended vide letter No.85605 dated 19.1.2000."
24. Treating Superintendent Grade-I and II as Junior Engineer, date of
09.07.1999 has been specifically mentioned in the statutory Rules
itself and to that extent, this aspect is given retrospective operation.
When we look into the matter in the aforesaid perspective, argument
of the learned counsel for the petition that there could not have been
any merger contrary to Recruitment Rules of 1993 or that statutory
Rules could not be superseded by executive order, i.e., Presidential
Orders dated 09.07.1999 loses its sheen. This argument and the
judgments cited in support of this argument would not be applicable
to the present case in view of the aforesaid specifically provision
introduced in the Recruitment Rules of 2001 itself by means of
aforesaid Note-I, which is also a part of Statutory Rules.
25. Moreover, the promotion to the post of Assistant Engineers are made
in accordance with these rules only after the promulgation of the
Rules. The only question was as to from which date three years of
service for degree holders and seven years of service for diploma
holders is to be counted. For this limited purpose, even when
promotions were to be made vide Notification dated 30.04.2001, date
of Presidential Orders, i.e., 09.07.1999 when two grades were merged
and given the nomenclature of Junior Engineer could be taken into
account. On the date when DPC was held in the year 2003-04, degree
holders had put in three years of service, whereas diploma holders
had not put in seven years of service. The petitioners were, therefore,
not eligible on that date.
26. The matter can be looked into from another angle as well. Though
designations of Superintendent Grade-I and II cease to exist and were
given the new designation of Junior Engineer on 09.07.1999, Rules
were amended on 30.04.2001. Therefore, there was a vacuum in
interregnum period. How this vacuum is to be filled or this period is
to be treated is the question? Obviously, even when 1978 Rules were
not formally amended, they could not have been operated. In the
contemplation of the authorities, however, was that with re-
designation of Superintendent Grade-I and II is Junior Engineer,
further promotion is to be to the post of Assistant Engineer, which
was formalized in the year 2001. Conscience of this, while
promulgating the Rules vide Notification dated 30.04.2001, the Rule
making authority specifically added Note-I in the said Notification
which has been dealt with by us above.
27. We, therefore, are in agreement with the view taken by the learned
Tribunal, which has taken the view of the matter considering all the
relevant circumstances. Therefore, it would not be appropriate to
interfere with the same in exercise of extra-ordinary jurisdiction
under Article 226 of the Constitution. We accordingly dismiss this
writ petition as devoid of any merit. However, parties are left to bear
their own costs.
(A.K. SIKRI)
JUDGE
( SURESH KAIT)
JUDGE
July , 2009.
pmc
