WP (C) Nos.2562/2002 & 489/2000 Page 1 of 29 * HIGH COURT OF DELHI : NEW DELHI + Writ Petition (Civil) No. 2562 of 2002 Judgment reserved on: July 7, 2008 % Judgment delivered on: December 5, 2008 1. Central Engineering Service Class I (DR) Association Through its Additional Secretary 2. Umesh Bansal S/o J.P. Bansal K-1, Indraprastha Apartments Patparganj, New Delhi – 92 3. Sunil Sharma S/o J.P. Sharma 28, Prashanth Apartments Patparganj, New Delhi – 92 4. Mohammed Sagheer S/o M.K. Usman TH-11, CPWD Transit Hostel Aliganj, Jorbagh, New Delhi – 3 …Petitioners Through Mr. P.P. Rao, Senior Advocate with Mr. V.K. Rao, Mr. Ayushya Kumar & Mr. Arun Dhiman, Advocates Versus 1. The Union of India through (1A) The Secretary Ministry of Urban Affairs & Employment Nirman Bhawan, New Delhi – 1 (1B) The Secretary Department of Personnel & Training North Block, New Delhi – 1 WP (C) Nos.2562/2002 & 489/2000 Page 2 of 29 2. Director General (Works) Central Public Works Department Nirman Bhawan, New Delhi – 1 3. The Chairman Union Public Service Commission Dholpur House, New Delhi – 11 4. Central Administrative Tribunal Through its Registrar Principal Bench Faridkot House, New Delhi – 1 5. Shri B.M. Singhal S/o late Shri Jyoti Prasad C-11/158, Yamuna Vihar, Delhi 6. Shri S.K. Jain S/o Shri S.L. Jain R/o 4/1712, Mittal Sadan Bhola Nath Nagar, New Delhi. 7. Ashwini Kumar OC, Costrn Squadron National Security Guards CGO Complex, Lodhi Road New Delhi – 3. 8. P.K. Dixit Executive Engineer Indore Central Dn, CPWD Indore. …Respondents Through Mr. H.K. Gangwani, Advocate for Respondent No.1 Mr. P.P. Khurana, Senior Advocate with Mr. Sachin Sood and Mr. Vikram Saini, Advocates for Respondents No.5 and 6 WITH WP (C) Nos.2562/2002 & 489/2000 Page 3 of 29 Writ Petition (Civil) No. 489 of 2000 V.K. Jain 724, Laxmibai Nagar New Delhi-110023. …Petitioners Through Mr. P.P. Rao, Senior Advocate with Mr. V.K. Rao, Mr. Ayushya Kumar & Mr. Arun Dhiman, Advocates Versus 1. The Union of India through The Secretary Ministry of Urban Affairs & Employment Nirman Bhawan, New Delhi –110011. 2. Secretary Union Public Service Commission Shahjehan Road New Delhi-110011. 3. Shri B.M. Singhal C/o Mr. Sohan Lal, Advocate C-6/244, Yamuna Vihar Delhi-110053. …Respondents Through Mr. H.K. Gangwani, Advocate for Respondent No.1 Mr. Sandeep Sethi, Senior Advocate with Mr. Sachin Sood and Mr. Vikram Saini, Advocates. Coram: HON'BLE MR. JUSTICE MADAN B. LOKUR HON'BLE MR. JUSTICE J.R. MIDHA 1. Whether the Reporters of local papers may WP (C) Nos.2562/2002 & 489/2000 Page 4 of 29 be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported Yes in the Digest? MADAN B. LOKUR, J. The rather limited question for our consideration is: Whether, in exercise of the power of relaxation conferred by statutory rules, the Central Government is entitled to divert vacancies, en bloc, belonging to the quota of direct recruits to the quota of promotees, in order to regularize their promotion? Given the facts and circumstances of the case, as well as the legal position, our answer to this question is in the affirmative. 2. The aggrieved parties before us are directly recruited Assistant Executive Engineers (Civil), Class I (for short AEEs) whose quota of vacancies for promotion to the grade of Executive Engineer was diverted in favour of Assistant Engineers (for short AEs). Broad facts of the case: 3. The statutory rules that we are concerned with are presently WP (C) Nos.2562/2002 & 489/2000 Page 5 of 29 called the Central Engineering Service Group „A‟ Recruitment Rules, 1954 (for short the 1954 Rules). The power to relax the statutory rules is conferred upon the Central Government by Rule 25 of the 1954 Rules and this reads as follows:- “25. Power to relax: Where the Central Government is of opinion that it is necessary or expedient to do so, it may, by order, relax, in consultation with the Union Public Service Commission, any of the provisions of these Rules with respect to any class or category of persons.” 4. At this stage, it may be mentioned that the Ministry of Urban Affairs and Employment (Department of Urban Development), Central Engineering (Civil) Group „A‟ Service Rules, 1996 (for short the 1996 Rules) superseded the 1954 Rules. However, as far as we are concerned, this is of no serious consequence for answering the question that we have set out above. We shall, however, be dealing with the alleged impact of the 1996 Rules. 5. Rule 3 of the 1954 Rules provides for recruitment to the Central Engineering Service, Class I, by a competitive examination, by promotion and by transfer. The posts that we are concerned with are of Executive Engineer (Civil), Class I, and they can be filled up by WP (C) Nos.2562/2002 & 489/2000 Page 6 of 29 promotion of directly recruited Assistant Executive Engineers, Class I (AEEs) and by promotion of Assistant Engineers (AEs). AEs who can be considered for promotion as Executive Engineers, include both graduate engineers as well as diploma-holders. 6. The 1954 Rules provide a quota for filling up the posts of Executive Engineer, Class I. As the 1954 Rules originally stood, 75% of the vacancies were to be filled up by promotion of AEEs and the rest by promotion of AEs. However, this quota underwent changes on more than one occasion but we are not really concerned with the amendments made. Suffice it to say that even though direct recruitments were said to have been made to the post of AEEs on a yearly basis, there remained a substantial shortfall of AEEs available for promotion to the grade of Executive Engineer, Class I. The result of this was that to keep the work going, the Central Government promoted AEs as ad hoc Executive Engineers. The promotions made were quite disproportionate to the quota and the fall-out of this was that many of the AEs continued as ad hoc Executive Engineers and even retired as such without the benefit of regularization. WP (C) Nos.2562/2002 & 489/2000 Page 7 of 29 7. As one would expect, promotions of AEs in excess of their quota led to litigation, but our attention has particularly been drawn to a decision of the Supreme Court in J.N. Goel & others v. Union of India & others, (1997) 2 SCC 440. What happened in that case was that graduate AEs had challenged, before the Central Administrative Tribunal, the entitlement of diploma-holder AEs for ad hoc promotion as Executive Engineers, inter alia, on the ground that the educational qualification postulated by Rule 21(3) of the 1954 Rules did not permit it. During the pendency of the challenge, the Central Government retrospectively incorporated a proviso to Rule 21(3) of the 1954 Rules to the effect that a diploma-holder AE having an outstanding record and ability could be promoted as an Executive Engineer in relaxation of the educational qualification required. This was also challenged before the Central Administrative Tribunal (for short the Tribunal). 8. While upholding the proviso, the Supreme Court noticed that the 1996 Rules had come into force, but observed that they were prospective in operation and that the promotions made prior to the promulgation of the 1996 Rules would be governed by the 1954 Rules. The Supreme Court concluded: WP (C) Nos.2562/2002 & 489/2000 Page 8 of 29 “The promotion of diploma-holder Assistant Engineers who have been promoted on the post of Executive Engineer on ad hoc basis, will have to be reviewed by the authorities and regular promotions against vacancies which occurred prior to the promulgation of the 1996 Rules will have to be made in accordance with the 1954 Rules.” 9. Apparently taking a cue from the observations of the Supreme Court, the Central Government decided to undertake a wholesale review of ad hoc promotions made to the grade of Executive Engineer and to regularize the services of the incumbents. There was some correspondence between the Ministry of Urban Development and the Union Public Service Commission (for short UPSC) in this regard. But finally, the proposed action was justified by the Secretary in the Ministry of Urban Development in his letter dated 4th June, 1999 addressed to the Chairman of the UPSC. The salient points mentioned in the letter are to the following effect: a. There has been consistent under recruitment of AEEs to fulfill their quota. Consequently, AEs have been promoted in excess of their quota on an ad hoc basis to carry on the work of the department. (Paragraph 2). b. The existing arrangements have led to frustration amongst ad- hoc Executive Engineers, many of whom have retired without any benefit of regularization. (Paragraph 3). c. To abolish the ad hocism, to wipe out the huge backlog of vacancies and to operate the 1996 Rules on a clean slate, a WP (C) Nos.2562/2002 & 489/2000 Page 9 of 29 one-time relaxation of the 1954 Rules is necessary. There is no alternative but to regularize the ad hoc promotion of AEs who have been working as Executive Engineers for more than 10 years. (Paragraph 4). d. This is a conscious and deliberate policy decision of the government to streamline the cadre management of the CPWD to facilitate the smooth working of the department. (Paragraph 5). e. “The proposed course of action shall not in any manner whatsoever adversely affect the interest of AEEs.” (Paragraph 6) f. “In fact the promotion of AEEs in future shall also not be delayed for want of their quota vacancies.” (Paragraph 6). 10. On the basis of the above, the UPSC accorded approval to the Central Government to divert 430 vacancies falling under the promotion quota of AEEs (Civil) in the CPWD to the promotion quota of AEs by relaxation of the 1954 Rules, with retrospective effect over a period of three years, that is, 1994-95 to 1996-97 upto 28th October, 1996. 11. Soon thereafter, the Central Government exercised the power of relaxation conferred on it by Rule 25 of the 1954 Rules and issued the following Office Memorandum on 6th July, 1999: WP (C) Nos.2562/2002 & 489/2000 Page 10 of 29 “No 30/5/98-EC-I/EW-1 GOVERNMENT OF INDIA MINISTRY OF URBAN DEVELOPMENT New Delhi, the 6th July, 1999. OFFICE MEMORANDUM Subject: Diversion of backlog vacancies from AEE’s quota to AE’s quota for promotion to the grade of EE (C) and EE (Elect.) As per provisions of 1954 Rect Rules, promotion to the post of EE in the CPWD is made from two sources namely, the AEEs Group-A and AE‟s Group-B in the following ratio prescribed from time to time. AEE AE 25.8.49 to 6.9.55 3 1 7.9.55 to 31.3.72 2 1 1.4.72 to 31.3.84 1 1 1.4.84 to 28.10.96 2 1 Revised RR's were promulgated on 29.10.96. The AEE‟s were not available in adequate number to fill up their quota vacancies which resulted in backlog in the quota of AEE‟s and corresponding excess in the promotion of AE‟s on adhoc basis against such quota. The backlog in the quota of AEE‟s till 28.10.96 was 430 in case of Civil and 120 in the case of Electrical. After careful consideration the Govt. has in exercise of the powers conferred under Rules 23/25 of the Central Engineering Service, Group A, Recruitment Rules, 1954 (SRO-1842) and rule 21 of the Central Electrical and Mechanical Engineering Service Group-A Recruitment Rules, 1954 (SRO-1843), decided to divert the said backlog of 430 vacancies in the quota of AEE‟s (C) and 120 in the WP (C) Nos.2562/2002 & 489/2000 Page 11 of 29 quota of AEE (E) to the Asstt. Engineer (Civil and Electrical) over a period of 3 years namely, 1994–95, 95-96 and 96-97 (upto 28.10.96) with a view to regularising the adhoc promotion of AE‟s working against these vacancies. This is subject to the condition that retired officers will also be considered, as per existing policy of the Govt. This issues with the approval of DPT vide their Dy. No. 337/US (RR- 1)/97 dt. 20.5.97 and UPSC vide their Lr. No. 11/11(3)98 – AP2 dt. 30.6.99. Sd/- (S.K. Bhatnagar) Under Secretary to the Govt. of India Tel. No. 3014151” 12. The aforesaid Office Memorandum was challenged by the Petitioners in the Central Administrative Tribunal by filing O.A. No. 1968 of 1999. That O.A. came to be dismissed by an order dated 13th February, 2001. This order passed by the Tribunal is now under challenge before us in WP(C) No. 2562 of 2002. 13. A perusal of the order dated 13th February, 2001 shows that the Tribunal relied, inter alia, on its earlier decision in O.A. No. 2134 of 1999 (V.K. Jain v. Union of India & ors) decided on 6th January, 2000. The decision rendered in V.K. Jain is under challenge before us in WP (C) No. 489 of 2000. Both writ petitions were heard together and the WP (C) Nos.2562/2002 & 489/2000 Page 12 of 29 present decision will govern both of them. What is the effect, if any, of the supersession of the 1954 Rules? 14. Learned counsel for the Petitioners contended that the 1954 Rules having been superseded by the 1996 Rules, the Central Government could not exercise the power of relaxation conferred by Rule 25 of the 1954 Rules because it was no longer available to it. Therefore, it was submitted that the diversion of vacancies was without jurisdiction. 15. Our attention was drawn by learned counsel to paragraphs 65 and 66 of State of Orissa v. Titaghur Paper Mills Co. Ltd. 1985 Supp SCC 280. It was submitted on the basis of this decision that the effect of supersession of the 1954 Rules by the 1996 Rules is that the 1954 Rules have been wiped off from the statute book and replaced by the 1996 Rules. Consequently, the power of relaxation conferred by Rule 25 of the 1954 Rules can no longer be of any assistance to the Central Government. 16. Reliance was also placed on Gajraj Singh v. STAT, (1997) 1 WP (C) Nos.2562/2002 & 489/2000 Page 13 of 29 SCC 650 particularly paragraphs 22 and 29 of the Report to submit that when an Act of Parliament is repealed, “it must be considered, except as to transactions past and closed, as if it had never existed. The effect thereof is to obliterate the Act completely from the record of Parliament as if it had never been passed; it never existed except for the purpose of those actions which were commenced, prosecuted and concluded while it was an existing law.” The effect that repeal has on vested rights and inchoate rights has also been discussed in that decision. 17. Finally, reference was made to India Tobacco Ltd. v. CTO, (1975) 3 SCC 512 which says much the same as Gajraj Singh, the point being made that for all intents and purposes the 1954 Rules do not exist. 18. We do not agree with the view canvassed by learned counsel. In the first instance, we are concerned only with the promotions made pre-1996. Those promotions could be governed and were governed only by the 1954 Rules and not by any other rule. Apart from the fact that this is quite natural, it was also made explicit by the Supreme Court in J.N. Goel. In paragraph 8 of the Report, it was observed: “Since the 1996 Rules are prospective in operation, the WP (C) Nos.2562/2002 & 489/2000 Page 14 of 29 promotions made prior to the making of the 1996 Rules would be governed by the 1954 Rules …..” Similarly, in paragraph 15 of the Report, the Supreme Court reiterated its view in the following words: “The promotion of diploma-holder Assistant Engineers who have been promoted on the post of Executive Engineer on ad hoc basis, will have to be reviewed by the authorities and regular promotions against vacancies which occurred prior to the promulgation of the 1996 Rules will have to be made in accordance with the 1954 Rules. Regularisation of diploma- holder Assistant Engineers who are working as Executive Engineers on ad hoc basis against vacancies which occurred after the promulgation of the 1996 Rules will have to be made in accordance with the provisions of the 1996 Rules.” 19. Secondly, the 1996 Rules make it clear that though they supersede the 1954 Rules, they do so “except as respects things done or omitted to be done before such supersession”. One of the things done by the Central Government under the 1954 Rules was to make promotions of AEs as Executive Engineers far in excess of their quota. This resulted in an anomalous situation in as much as a large number of AEs could not be regularized as Executive Engineers in spite of having worked as such for more than 10 years (some of them even retired as ad hoc Executive Engineers) and this naturally bred frustration amongst them. WP (C) Nos.2562/2002 & 489/2000 Page 15 of 29 The mandate of the Supreme Court in J.N. Goel was to rectify this situation with reference to ad hoc diploma-holder AEs. But, this was not possible without taking into consideration similar aspirations of the graduate AEs, who could not (obviously) be left out in the cold. It was to set right the anomalous situation caused by the omission of the Central Government to adhere to the quota that it had to resort to Rule 25 of the 1954 Rules, there being no other alternative or viable option. 20. Effectively, therefore, all that the Central Government has done is to acknowledge the existence of a complex situation of its own making; appreciate the need to rectify it in terms of the observations of the Supreme Court in J.N. Goel; utilize the power available to it under Rule 25 of the 1954 Rules; and, correct the course of events caused by “things done or omitted to be done” by it. In our opinion, on the plain language of the 1996 Rules, this power was available to the Central Government under the 1954 Rules in respect of pre-1996 promotions. 21. The matter may be looked at from another point of view. Has any prejudice been caused to the Petitioners or have they been adversely affected in any manner whatsoever? In this context, it is WP (C) Nos.2562/2002 & 489/2000 Page 16 of 29 necessary to advert to the letter dated 4th June, 1999 addressed by the Secretary in the Ministry of Urban Development to the Chairman of the UPSC. In this letter, it is categorically stated that “The proposed course of action shall not in any manner whatsoever adversely affect the interest of AEEs. ….” Therefore, by correcting the course of events, no prejudice has been caused to the AEEs. Indeed, as far as we are concerned, nothing was shown to us to even remotely suggest that the Petitioners were prejudicially affected. That being so, we fail to see the grievance that any of the Petitioners could have to the remedial action taken by the Central Government. 22. It was suggested by learned counsel for the Petitioners that prejudice was caused to his clients in as much as their seniority was adversely affected because there is no period specified for promotion of AEEs (such as the Petitioners) to the post of Executive Engineer. Theoretically, therefore, they could have been promoted on the very first day that they joined the service and the diversion of vacancies has denied this opportunity to them. This submission is mentioned only to be rejected forthwith. No such case was ever put forward by the Petitioners before the Tribunal and no instance has been brought to our WP (C) Nos.2562/2002 & 489/2000 Page 17 of 29 notice of any AEE having been promoted to the post of Executive Engineer on the very day that he joined the service. The submission seems to be entirely hypothetical and one of desperation by clutching at a straw. In the absence of anything worthwhile or substantial, we are not inclined to seriously consider the completely illusory and imaginary situation set out by learned counsel. 23. Contrast this with the averment made by the Petitioners in paragraph 19 of the writ petition. It is averred therein that: “The Petitioners herein were directly recruited as AEEs (Civil) through the Competitive Examination for the Combined Engineering Services conducted by the UPSC during the years 1988 onwards. Accordingly, after completing the requisite qualifying service as per the 1954 Rules and as per the 1996 Rules (dealt with hereinafter), they were promoted as EEs (Civil) within their lawful quota.” 24. To our mind, this clearly suggests that not only were the Petitioners required to undergo a qualifying period of service for promotion to the post of Executive Engineer, but that their promotions were made under the 1996 Rules and not under the 1954 Rules. This really confirms that the Petitioners have not been prejudicially affected in any manner whatsoever. WP (C) Nos.2562/2002 & 489/2000 Page 18 of 29 25. The follow-up to the contention urged, in the larger canvas, is that the 1996 Rules occupy the field and the Central Government cannot resort to the 1954 Rules to remedy the situation. Even this submission is without any substance. It is quite clear that the 1996 Rules are prospective in nature (as held in J.N. Goel) and they do occupy the field but only in so far as promotions post-1996 are concerned. It is equally clear that for pre-1996 promotions, the 1996 Rules cannot be made applicable – they are not retrospective and were not in existence before 28th October, 1996. The only rules that could be considered for application to pre-1996 promotions are undoubtedly the 1954 Rules and it is only the power conferred by those rules that the Central Government has invoked. If any other authority is needed for this general proposition, one need only look at Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284. [“We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules.”] 26. Learned counsel submitted that Rule 7 of the 1996 Rules dealing with future maintenance of the service would be the applicable rule to deal with the situation that we are confronted with. With respect, WP (C) Nos.2562/2002 & 489/2000 Page 19 of 29 this is not correct. Rule 7 of the 1996 Rules deals with filling up of vacant duty posts, by way of future maintenance of the service created by the 1996 Rules. In the present case, the situation contemplated by learned counsel does not at all arise because by the order dated 6th July, 1999 all promotions of ad hoc AEs were regularized leaving no “vacant duty posts” to be filled up. In fact, by virtue of their regularization, the AEs became members of the Central Engineering (Civil) Group „A‟ Service on its initial constitution under Rule 6 of the 1996 Rules. To sum up, there is no visible impact of the 1996 Rules on the 1954 Rules as far as this case is concerned. Does the power of relaxation enable diversion of vacancies? 27. The next submission of learned counsel for the Petitioners was that assuming the Central Government was entitled to invoke the 1954 Rules, even then, Rule 25 thereof did not enable it to divert vacancies from one category (AEEs) to another (AEs). It was also submitted, in this context, that Rule 25 did not enable the Central Government to alter the statutorily fixed quota applicable for promotions to the post of Executive Engineers. It was further submitted that the statutorily fixed quota could be altered only by amending the WP (C) Nos.2562/2002 & 489/2000 Page 20 of 29 1954 Rules, as had been done from time to time, and not by administrative instructions. 28. The power of relaxation conferred by Rule 25 of the 1954 Rules is extremely wide. It enables the Central Government to relax any provision of the 1954 Rules with respect to any category or class