IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 23-11-2006 Coram: The Honourable Mr. Justice Elipe DHARMA RAO and The Honourable Ms. Justice K. SUGUNA W.P. Nos.22224, 22236, 22275, 22276, 24123 and 27105 of 2006 and M.P. Nos.1 to 3 of 2006 in the respective petitions W.P. No.22224 of 2006: R. Sundar Raju .... Petitioner :versus: 1. V. Ramakrishnan 2. The Government of Pondicherry rep. by its Chief Secretary Goubert Avenue Pondicherry 3. Ministry of Urban Development rep. by its Secretary Nirman Bhavan New Delhi 110 011 4. The Director General of Works Central Public Works Department Nirman Bhavan New Delhi 110 011 5. The Secretary to Government (Works) Local Administration and Public Works Department (Public Works Wing) Government of Pondicherry https://hcservices.ecourts.gov.in/hcservices/ 6. The Registrar Central Administrative Tribunal Madras Bench High Court Chennai .... Respondents Petition under Art.226 of the Constitution of India, praying for a Writ of Certiorari, calling for the records of the 6th respondent in its order dated 4-7-2006 in O.A. No.57 of 2006 and quash the same. W.P.No.22236/2006 R. Sundar Raju ........ Petitioner VS 1. V.Ramakrishnan, 2. The Govt of Pondicherry rep by its Chief Secretary, Bouvert Avenue, Pondicherry. 3. Union Public Service Commission, rep by its Secretary, Dholpur House, Shajahan Road, New Delhi - 110 069. 4. The Secretary, Department of Home Affairs, North Block, New Delhi. 5. The Registrar, Central Administrative Tribunal, Madras Bench, High Court Buildings, Chennai -104. ............ Respondents Petition under Art 226 of the Constitution of India, praying for a Writ of Certiorari, to quash the order dt 4.7.2006 passed by the Central Administrative Tribunal, Madras Bench in O.S. No. 807 of 2005, after calling for the concerned records from the 5th respondent. https://hcservices.ecourts.gov.in/hcservices/ W.P.No.22275 of 2006. 1.The Government of Pondicherry, Rep by its Cheif Secretary, Bouvert Avenue, Pondicherry ............ Petitioner VS 1. V. Ramakrishnan, 2. Union Public Service Commission, rep by its Secretary, Dholpur House,Shajahan Road, New Delhi 110069. 3. The Secretary, Department of Home affairs, rep by its Secretary, North Block, New Delhi, 4. R. Sundar Raju, 5. The Registrar, Central Administrative Tribunal, Madras Bench, Chennai. ............ Respondents Petition Under Art 226 of Constitution of India, praying for a Writ of Certiorari calling for the records relating to the impugned order in O.A.No. 807/05 on the file of the 5th respondent and to quash the order dated 4.7.2006. W.P.22276 of 2006 1. The Government of Pondicherry, Rep by its Chief Secretary, Bouvert Avenue, Pondicherry. 2. The Secretary to Government (Works) Local Administration and Public Works Department, (Public Works Wing) Government of Pondicherry. ... Petitioner Vs https://hcservices.ecourts.gov.in/hcservices/ 1. V. Ramakrishnan 2. Ministry of Urban Development rep by its Secretary Nirman Bhavan, New Delhi-110 011. 3. The Director General of works Central Public Works Department Nirman Bhavan, New Delhi. 110 011. 4. R. Sundar Raju 5. The Registrar, Central Administration Tribunal Madras Bench, Chennai. Petition under Art 226 of the Constitution of India praying for a writ of certiorari calling for the records relating to the impugned order in O.A.No.57/06 on the file of the 5th respondent and to quash the order dated 4.7.2006. WP NO. 24123 of 2006 1. The Director General of Works, Central Public Works Department, Nirman Bhavan, New Delhi 110 011. 2. Urban Development, Secretary, Nirman Bhavan, New Delhi - 11 .. Petitioners Vs 1. The Government of Pondicherry, rep by its Chief Secretary, Bouvert Avenue, Pondicherry 2. The Secretary to Government (Works) Local Administration and Public Works Department, (Public Works Wing) Government of POndicherry. 3. V. Ramakrishnan 4. R. Sundar Raju https://hcservices.ecourts.gov.in/hcservices/ 5. The Registrar, Central Administrative Tribunal, Madras Bench Chennai Petition under Article 226 of the Constitution of India praying for a writ of certiorari calling for the records relating to the impugned order made by the 6th Respondent in O.A. NO. 57/2006 and to quash the order dated 4.7.2006 W.P.No.27105 of 2006: The Union Public Service Commission, rep. by its Secretary, Dholpur House, Shajahan Road, New Delhi-110 069. ..Petitioner. Vs. 1. V.Ramakrishnan 2. Government of Pondicherry, rep. by its Chief Secretary, Bouvert Avenue, Pondicherry. 3. The Secretary, Department of Home Affairs, rep. by its Secretary, North Block, New Delhi. 4. R.Sundar Raju 5. The Registrar, Central Administrative Tribunal, Madras Bench, Chennai. Petition under Article 226 of the Constitution of India, praying for a writ of certiorari calling for the entire records leading to the issue of the Order in O.A.No.807 of 2005 dated 4.7.2006 on the file of the 5th Respondent, Central Administrative Tribunal, Chennai Bench, Chennai and quash the same. For Petitioner :: Ms. R. Vaigai (in W.P. Nos.22224 and 22236 of 06) https://hcservices.ecourts.gov.in/hcservices/ For Petitioner :: Mr. V.T. Gopalan (in W.P. Nos.22275 Addl. Solicitor General and 22276 of 06) Mr. P. Wilson Asst. Solicitor General for Mr.T.Murugesan Senior Govt. Pleader For Petitioner Mr. V.T. Gopalan in W.P.No.27105/06 Addl. Solicitor General for Mr. K. Sridhar For Respondent :: Mrs. Nalini Chidambaram (R1 in W.P. No.22224 Senior Counsel for and 22236 of 2006) Mrs. Gladys Daniel COMMON ORDER Elipe DHARMA RAO, J. In these writ petitions, the challenge is to the order dated 4-7-2006 passed by the Central Administrative Tribunal in O.A. No.807 of 2005 as well as the order dated 4-7-2006 passed in O.A. No.57 of 2006, allowing the applications filed by the first respondent herein. 2. A deputationist stakes his claim against a departmental engineer to cling on to the highest post of Chief Engineer in the Public Works Department of Government of Pondicherry. That is the crux of the issue in these writ petitions. 3. Facts, in brief, leading to the filing of these writ petitions are as follows: When the post of Chief Engineer in the Public Works Department (PWD) of Government of Pondicherry fell vacant in the year 2004, the Government proceeded to fill up the vacancy by transfer of deputation. For that purpose, the Government addressed a letter dated 30-1-2004 to the Director General of Central Public Works Department (CPWD) to send a panel of eligible and willing officers. An office memorandum dated 10-2-2004 was issued by the CPWD inviting options from the eligible officers working in the CPWD. One V. Ramakrishnan (hereinafter called the first respondent), who was working as Superintending Engineer with Central Public Works Department (CPWD), Pondicherry applied to the said post and was selected and appointed as Chief Engineer on short term deputation basis with effect from 1-7-2004. While so, one R. Sundar Raju, hereinafter referred to as the petitioner, working as Superintending Engineer in the PWD, Pondicherry filed an original application (O.A. No.581 of 2004 before the Central Administrative Tribunal (in short ‘the Tribunal’), challenged the practice of filling up the post of Chief Engineer by transfer on deputation, but unsuccessful as the said application was disposed of with out granting any https://hcservices.ecourts.gov.in/hcservices/ relief to the petitioner. The first respondent was, however, by order dated 14-2-2005, repatriated to his parent department and the petitioner was directed to hold the additional charge of the post of Chief Engineer. The first respondent challenged his repatriation and also the appointment of the petitioner as Chief Engineer in O.A. No.150 of 2005. The said original application was allowed and the repatriation order was set aside. The order of the Tribunal was challenged before this Court in writ petitions filed by the Government as well as the petitioner, but the writ petitions were dismissed. Against which appeals were preferred before the Supreme Court. In the mean time, the Government decided to relax the eligibility criteria for promotion to the post of the Chief Engineer and accordingly amended the recruitment rule in so far it related to the recruitment by way of promotion. The draft amended recruitment rules was sent to the Union Public Service Commission (UPSC) for approval. The appeals, which were pending before the Supreme Court, were dismissed and consequently, the first respondent was reappointed in the post of Chief Engineer. The first respondent challenged the amendment to Clause 12 of RR, 1996 before the Tribunal in O.A. No.807 of 2005. While so, the Ministry of Urban Development, the cadre controlling authority of the first respondent, by order dated 20-1-2005 recalled the services of the first respondent from the PWD, Pondicherry and he was immediately relieved by the Government by the order of the even date and simultaneously, the petitioner was promoted and appointed as Chief Engineer, PWD, on ad hoc basis. These orders were challenged by the first respondent before the Tribunal in O.A. No.57 of 2006. The Tribunal by its order dated 4-7-2006 allowed O.A. No.807 of 2005 quashed the amendment to the recruitment rules and also set aside the orders passed by the Ministry of Urban Development as well as the Government of Pondicherry and directed the authorities concerned to restore first respondent in service as Chief Engineer (Civil) in the PWD, Pondicherry. It is against these orders of the Tribunal, the present writ petitions have been filed. 4. All the above writ petitions, which were heard together, are disposed of by this common order as they involve the common factual matrix and the issues arising therefrom. Mr. V.T. Gopalan, learned Additional Solicitor General addressed his arguments on behalf of the Government of Pondicherry as well as UPSC and Ms. R. Vaigai, learned counsel made her submissions on behalf of the petitioner. The challenge to the impugned orders of the Tribunal by the learned Additional Solicitor General and the learned counsel for the petitioner was almost on common grounds and, therefore, in this order, their arguments are dealt with together. Mrs. Nalini Chidambaram, learned senior counsel appearing for the first respondent submitted her arguments defending the impugned order passed by https://hcservices.ecourts.gov.in/hcservices/ the Tribunal. Learned senior counsel appearing on either side cited a number of authorities in support of their respective contentions. We will advert to those authorities at appropriate places while dealing with the merits of the contentions. 5. Before proceeding further, we may hasten to point out that this is the second round of litigation between the parties. On the earlier occasion, when the first respondent was relieved from the post of Chief Engineer by order dated 14-2-2005 and the petitioner was appointed on ad hoc basis as Chief Engineer by order dated 27-4-2005, the matter went up to the Supreme Court and was given a finality, but in view of the subsequent developments, the first respondent was once again constrained to approach the court of law. 6. To appreciate the arguments advanced by the learned senior counsel for the parties, it is relevant to note the rules relating to the recruitment to the post of Chief Engineer, PWD. 7. The post of Chief Engineer in the Public Works Department, Pondicherry is classified as General Central Services – Group 'A' Gazetted – Non-Ministerial post. It is a selection post. The recruitment to the said post was initially governed by the Government of Pondicherry, Public Works Department, Group 'A' post of Chief Engineer Recruitment Rules, 1996 (in short RR 1996). As per RR, 1996, the method of recruitment to the said post was promotion failing which by transfer on deputation. The eligibility criteria for promotion was five years of regular service in the grade of Superintending Engineer in the scale of pay of Rs.3700-5000. In case of recruitment by transfer on deputation, the officers of the Central/State Government/Union Territories holding analogous posts on a regular basis or with three years' regular service in posts in the scale of pay of Rs.3700-5000 or equivalent were eligible for consideration. Thus under RR 1996, the grade of Superintending Engineer with five years of regular service in the scale of pay of Rs.3700-5000 was the feeder category to the post of Chief Engineer. 8. The departmental engineers’ association of PWD, Pondicherry made a memorandum to the Government stating that the eligibility criteria of five years of regular service in the post of Superintending Engineer to become eligible for promotion to the post of Chief Engineer is a stumbling block in their way of promotion to the top rank of Chief Engineer as they reach the grade of Superintending Engineer only at the fag end of their service and most of them are left with less than five years of service before retirement. Further, since the scales of pay for the Chief Engineer and the Superintending Engineer, which were Rs.4500-5700 and Rs.3700-5000 respectively, were revised as Rs.14300-18300 and Rs.12000-375-16500/14300- 400 respectively, the Chief Engineer and the Superintending Engineers are in one and the same scale of pay viz. Rs.14300-400-18300. The departmental engineers, therefore, requested the Government to consider the Superintending Engineers who are in the scale of pay of Rs.14300-18300 https://hcservices.ecourts.gov.in/hcservices/ with three years of regular service in the grade for promotion to the post of Chief Engineer. 9. The Government, after considering the grievance of the departmental engineers and also taking into consideration the fact that hitherto the post was occupied by a deputationist decided to amend suitably the eligibility criteria relating to the recruitment by promotion. The Government, therefore, decided to amend Clause 12 of RR, 1996 in so far as it related to promotion and the amendment process stated in the year 2000. The Government prescribed the following eligibility criteria for promotion to the post of Chief Egnineer: Superintending Engineer (12000-16500) with five years regular service in the grade, failing which Superintending Engineer with ten years of combined regular service in the grade of Superintending Engineer and Executive Engineer out of which atleast one year regular service should be in the grade of Superintending Engineer. The draft amended recruitment rules was sent to the Union Public Service Commission (UPSC) for approval. It appears that UPSC have raised some clarifications with regard to scales of pay of the Chief Engineer and the Superintending Engineer and that there were exchange of correspondence between the Government and the UPSC on this issue and the matter took considerable length of time. 10. While so, the post of Chief Engineer fell vacant in the year 2004. As stated earlier, for want of eligible departmental Superintending Engineers, the post could not be filled up immediately with a regular incumbent by promotion. Further, the amendment to the recruitment rules was pending consideration with UPSC. In such circumstances, on account of immediate administrative necessity, the Government proceeded to fill up the post by transfer on deputation basis for a short-term basis. It was in this background that the first respondent appointed as Chief Engineer by transfer on short-term deputation/temporary basis with effect from 1-7- 2004. We may hasten to note here that in the matter of appointment to the post of Chief Engineer, the mandatory rule of consulting the UPSC under Clause 14 of RR, 1996 was given a go-by by the Government. 11. By proceedings dated 14-2-2005, the first respondent was relieved from the post of Chief Engineer, PWD and was repatriated to his parent department, viz. CPWD. On the very same day, the petitioner was given the additional charge of the post of Chief Engineer. It appears that in the meeting of the Departmental Promotion Committee (DPC) held on 8-4-2005, it was decided to promote the petitioner and appoint him as the Chief Engineer on ad hoc basis and this was communicated to the petitioner on 27-4-2005 and thereupon he took charge immediately. 12. The order dated 14-2-2005 repatriating the first respondent to his parent department as well as order dated 27-4-2005, promoting and https://hcservices.ecourts.gov.in/hcservices/ appointing the petitioner as Chief Engineer on ad hoc basis were challenged by the first respondent before the Tribunal in O.A. No.150 of 2005. The Tribunal, by order dated 14-7-2005, allowed the application and directed the Government to restore the first respondent to the post of Chief Engineer, PWD. 13. The Tribunal’s order dated 14-7-2005 was challenged before this Court in the writ petitions filed (W.P. Nos.23053 and 24008 of 2005) filed by the petitioner and the Government respectively. The Division Bench, by order dated 11-08-2005, dismissed the writ petitions holding that as the first respondent was appointment on deputation pending selection of the regular incumbent by the UPSC, till such regular selection is made, he had a right to hold the said post and that so long the draft rules were not approved by the competent authority viz. UPSC, the petitioner was ineligible to be appointed as Chief Engineer, PWD, Pondicherry. 14. Challenging the order passed by the Division Bench, appeals were filed before the Supreme Court by the petitioner as well as the Government. It appears that when the matter was pending before the Supreme Court, the draft recruitment rules got the approval of the UPSC and the Government have also issued a notification dated 28-9-2005 publishing the new amended recruitment rules. Before the Supreme Court it was submitted by the Government that amendment to recruitment rules got the approval of the UPSC and a notification was also issued, UPSC have been addressed to regularise the service of the petitioner as Chief Engineer from the date of his ad hoc promotion and further the Departmental Promotion Committee constituted in terms of the amended recruitment rules would hold its meeting shortly to select a regular incumbent, the relief sought for by the first respondent in his original application had become infructuous. Rejecting the submission so made, the Supreme Court dismissed the appeals by order dated 7-10-2005. The Supreme Court, however, observed that all the authorities concerned must see to it that the selection process in accordance with law may be completed as expeditiously as possible. Consequently, in compliance of the order passed by the Supreme Court, the Government relieved the petitioner and restored the first respondent in the post of Chief Engineer and the petitioner was posted as Superintending Engineer, PWD. 15. The Government addressed a letter dated 26-10-2005 requesting the Director General of Works, CPWD, New Delhi to immediately recall the services of the first respondent. In the said letter "administrative reasons" and "public interest" were shown as the reasons for recalling the first respondent. In their reply dated 3-11-2005, CPWD informed that because of the fact that the first respondent was allowed to rejoin the post of Chief Engineer by the Government of Pondicherry in pursuant of the order passed by the Supreme Court, any further decision regarding the repatriation of the first respondent was to be taken by the Government and that CPWD on its own could not issue any order to recall the first respondent. https://hcservices.ecourts.gov.in/hcservices/ 16. The first respondent, in the mean time, has filed an application (O.A. No.807 of 2005) on 28-9-2005 before the Tribunal challenging the amendment to Clause 12 of the recruitment rules. 17. While so, the Ministry of Urban Development, which is the Cadre Controlling Authority for PWD of Pondicherry, passed an order dated 20-1- 2006 recalling the services of the first respondent and posting him as Superintending Engineer, Appropriate Authority, Pondicherry. "public interest' was cited as the reason for repatriation of the first respondent. This order was immediately followed by the order dated 20-1- 2006 passed by the Government of Pondicherry relieving the first respondent from his duties from the Government of Pondicherry and further directing him to report as Superintending Engineer (Appropriate Authority) Pondicherry. On 20-1-2006 itself, the Government passed another order directing the petitioner to hold full additional charge of the post of Chief Engineer, PWD, Pondicherry. 18. The first respondent filed an application (O.A. No.57 of 2006) before the Tribunal to quash the order dated 20-1-2006 passed by the Director General of Works, CPWD, New Delhi and the consequential order dated 20-1-2006 issued by the Government of Pondicherry and to restore him as the Chief Engineer (Civil) in PWD, Pondicherry. By way of interim relief, the first respondent was permitted bythe Tribunal to officiate as the Chief Engineer. 19. The interim relief granted by the Tribunal was challenged by the Government of Pondicherry before this Court in W.P. No.2778 of 2006 on the ground that by granting the interim relief, the Tribunal has virtually granted the main relief sought for by the first respondent in his original application, which was unsustainable in law. The Division Bench disposed of the said writ petition by order dated 29-3-2006 holding that it was open to the first respondent to join the post as per the order dated 20-1-2006, which was challenged in O.A. No.57 of 2006 before the Tribunal, without prejudice to his contentions in the said application. The Division Bench, however, stayed the interim order passed by the Tribunal restraining the petitioner from discharging the duties of the Chief Engineer and permitting the first respondent to continue to officiate as the Chief Engineer. The Division Bench further observed that the original application should be disposed of as expeditiously as possible. The Special Leave Petition filed at the instance of the first respondent against the above said Division Bench order was dismissed by the Supreme Court on 1-5-2006 with an observation that the matter shall be taken up for hearing by the Tribunal immediately. 20. In compliance of the observations made by the Supreme Court, the Tribunal took up both the applications, viz. O.A. No.57 of 2006 as well as the connected O.A. No.807 of 2005. https://hcservices.ecourts.gov.in/hcservices/ 21. In O.A. No.807 of 2005, the dilution of the eligibility criteria was challenged on the grounds of arbitrariness and unreasonableness and that the eligibility criteria was relaxed to suit the convenience of the Government and to accommodate the petitioner in the post of Chief Engineer. On the other hand, it was contended by the Government that the Government was well within the powers to amend the recruitment rules, which has got the approval of the UPSC and that the first respondent, being a deputationist, has no locus standi to challenge the amendment to the recruitment rules. 22. The Tribunal held that the eligibility criteria was diluted to one year to suit the convenience of the Government, that the statutory power was wrongfully exercised to set at naught the earlier order of the Tribunal, which was confirmed by the Division Bench of the High Court and by the Supreme Court, that equation of five years of regular service as Superintending Engineer with one year of regular service in the grade of Superintending Engineer was unreasonable, arbitrary and illegal, and that service rules cannot be framed to suit the convenience or wishes of a particular section or group of employees or an individual. The Tribunal, therefore, held that Clause 12 of the amended recruitment rules in so far as it prescribed Superintending Engineer with ten years of combined regular service in the grade of Superintending Engineer and Executive Engineer, out of which at least one year regular service should be in the grade of Superintending Engineer for becoming eligible for promotion to the post of Chief Engineer was arbitrary, illegal and violative of Arts.14 and 16 of the Constitution of India and accordingly quashed the rule to the said extent. 23. In the other application, viz. O.A. No.57 of 2006 where the subject-matter of challenge was to the order dated 20-1-2006 repatriating the first respondent to his parent department and promoting and appointing the petitioner as Chief Engineer, the Tribunal held that since the appointment of the first respondent, though on deputation, was made for specific period, i.e. till a regular appointment was made and therefore, he could not have been repatriated without making a regular appointment to the post of Chief Engineer and till such time a regular appointment is made he has a right to continue in the post and the impugned order dated 20-1-2006 was not a routine administrative order made in public interest, but an order made in colourable exercise of power and arbitrarily. The Tribunal, therefore, set aside the order dated 20-1-2006 and directed the authorities concerned to restore the first respondent in service as Chief Engineer (Civil) in the PWD, Pondicherry. 24. We will first deal with the impugned order passed by the Tribunal in O.A. No.807 of 2005 quashing Clause 12 of the amended recruitment rules. https://hcservices.ecourts.gov.in/hcservices/ 25. Learned Additional Solicitor General for the Pondicherry Administration submitted that in exercise of the powers