Pradip Kumar Chakraborty & Anr v. UOI & Ors

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.

¶14Therefore, 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."

¶15Therefore, 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."

¶16Submission 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.

¶17The 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.)

¶18On 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.

¶19Mr. 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.

¶20Factual 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)

¶21These 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.

¶22In 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."

¶15Therefore, 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."

¶23We 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."

¶24Treating 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.

¶25Moreover, 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.

¶26The 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.

¶27We, 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

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