WP (C) No. 4462/2008 Page 1 of 22 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 WP (C) No. 4462/2008 Page 2 of 22 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 WP (C) No. 4462/2008 Page 3 of 22 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. WP (C) No. 4462/2008 Page 4 of 22 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 WP (C) No. 4462/2008 Page 5 of 22 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 WP (C) No. 4462/2008 Page 6 of 22 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 Rs.1400-2300. (revised Rs.5000-8000) Superintendent B&R Gde I Rs.1640-2900 (Revised Rs.5000-8000) Junior Engineer (Civil) Rs.1400-2300 (entry grade) (revised Rs.5000-8000) Rs.1640-2900 (After 5 years) (revised Rs.55500-9000) Rs. 2000-3500 (after 15 years) (revised Rs. 6500-105000) (b)Superintendent E&M Gde II Rs.1400-2300 Junior Engineer (Electrical & Mechanical) WP (C) No. 4462/2008 Page 7 of 22 (revised Rs.5000-8000) Superintendent E&M Gde I Rs.1640-2900 (revised Rs.5500-9000) Rs.1400-23000 (Entry Grade) (revised Rs.5000-8000) Rs.1640-2900 (after 5 years) (revised Rs.5500-9000) Rs. 2000-3500 (after 15 years) (revised Rs.6500-10500). (c) Surveyor Assistant Gde II Rs. 1400-2300 (revised Rs.5000-8000) Surveyor Assistatn Gde I Rs.1640-2900 (revised Rs.5500-9000) Junior Engineer (Quantity Surveyor & Contracts) Rs.1400-2300 (entry grade) (revised 5000-8000) Rs.1640-2900 (after 5 years) (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 WP (C) No. 4462/2008 Page 8 of 22 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 WP (C) No. 4462/2008 Page 9 of 22 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 WP (C) No. 4462/2008 Page 10 of 22 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 WP (C) No. 4462/2008 Page 11 of 22 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 WP (C) No. 4462/2008 Page 12 of 22 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 WP (C) No. 4462/2008 Page 13 of 22 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’ WP (C) No. 4462/2008 Page 14 of 22 (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 WP (C) No. 4462/2008 Page 15 of 22 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 WP (C) No. 4462/2008 Page 16 of 22 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