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CASE NO.:

Appeal (civil) 6312 of 1994

PETITIONER:

CHANDIGARH ADMINISTRATION ETC. ETC

RESPONDENT:

K.K. JERATH

DATE OF JUDGMENT: 27/09/1994

BENCH:

R.M. SAHAI & N.P. SINGH

JUDGMENT:

JUDGMENT

WITH

Special Leave Petition (C) No. 16833 of 1994.

1994 SUPPL. (4) SCR 35

The Judgment of the Court was delivered by

R.M. SAHAI, J. Who is eligible to be considered for the post of Chief

Engineer in Buildings & Roads Department in the Union Territory of

Chandigarh - a Superintending Engineer from any of the disciplines -

electrical, mechanical, housing - or a Superintending Engineer (Civil)

alone? Do the Punjab Service of Engineers, Class I, P.W.D. (Buildings &

Roads Branch) Rules, 1960 (for short 'the Rules') contemplate that when-

ever a vacancy of a Chief Engineer arises in the Union Territory of

Chandigarh it is always to be filled by transfer or deputation from a

Superintending Engineer of Punjab? These interesting questions arise in

this appeal filed, primarily, by no one else than Chandigarh Administration

itself against the order of Central Administrative Tribunal, Chandigarh

Bench, Chandigarh directing that the respondent, a Superintending En-gineer

(Electrical) of Chandigarh was eligible to be considered for promo-tion to

the post of Chief Engineer. The entire thrust of the attack on the

direction was concentrated on the prevalent practice of appointing officers

in different services in Chandigarh from Punjab Service. So much so that

the State of Punjab which has filed an application seeking leave to appeal

against the impugned order has claimed that when recruitments were made in

the Stale services it took into consideration not only the vacancies which

were existing or were likely to arise in its own State but a larger number

of officers, were appointed in expectation that they shall be transferred

to the Union Territory of Chandigarh. Whatever be the merit of such a claim

by the State of Punjab and irrespective of the practice which is being

observed since the Union Territory of Chandigarh was created, the

correctness of the order passed by the Tribunal depends not on such claim

advanced either by State of Punjab or the Stale of Haryana but on the rules

which are applicable and which provide for eligibility of a candidate for

being considered for the post of Chief Engineer.

The respondent Shri K.K. Jerath, a graduate in Electrical Engineering was

recruited as Assistant Engineer in the service of the Union Territory of

Chandigarh through the Union Public Service Commission on 26th June 1968.

He was promoted as Executive Engineer on 28th October 1976 and was

confirmed as such on 31st May 1985. He was granted selection grade with

effect from 28th October 1983. He was promoted to the post of

Superintending Engineer on 17th February 1987 by order dated 11th May 1987

on recommendation of the Departmental Promotion Committee Class I as per

letter dated 22nd April 1987 from the Union Public Service Commission, New

Delhi. He completed his period of probation for one year on 16th February

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1988, In May 1990 the post of Chief Engineer and Secretary, Chandigarh

Administration fell vacant as the then occupant was appointed as Chairman,

Chandigarh Housing Board, In the same month the appellant wrote to the

Punjab Government to send a panel of eligible candidates to be promoted to

the post of Chief Engineer. A panel was sent. But no one was found

suitable. When similar request was made again the respondent, on coming to

know of it, filed a claim petition before the Central Administrative

Tribunal, Chandigarh in which an interim order was granted restraining the

appellant from appointing Chief Engineer on deputation till 8th June 1990.

The application for interim order was taken up finally on 8th June, 1990

and after hearing both the parties the Tribunal directed that the

respondent and other eligible Superintending Engineers in the Union

Territory cadre for the post of Chief Engineer be considered in accordance

with the Rules. In pursuance of this direction a Committee consisting of

the Home Secretary, the Finance Secretary, the Chief En-gineer and

Secretary and Law Secretary met on 26th June 1990 and it was of opinion

that none of the Union Territory cadre Superintending En-gineers were

eligible for promotion as Chief Engineer. On 23rd Oc-toberl990 the State

moved an application before the Tribunal bringing it to its notice that no

Superintending Engineer from the Union Territory having been found to be

eligible it may be permitted to appoint on a temporary basis an Engineer on

deputation from outside. This was resisted by the respondent who claimed

that the constitution of Committee was illegal and in any case the

Committee was not justified in rejecting the claim of the respondent as he

had completed three years of service as Superintending Engineer and was

thus eligible for being considered. The Tribunal, therefore, passed an

order directing the appellant to consider the respondent for the post of

Chief Engineer, subject to suitability, considering him to be eligible for

the post. This order was challenged by the appellant in this Court and the

petition was disposed of on 4th March, 1991 by directing the Tribunal to

dispose of the application pending before it on merits by 30th April 1991.

Consequently the Tribunal decided the petition filed by the respondent and

passed the impugned order. It held that the services of the engineers in

the Buildings & Roads Department of the Union Territory of Chandigarh and

their promotion to the post of Chief Engineer is regulated by the Rules, It

found that the respondent being a member of the service as provided in the

Rules he could not be excluded from consideration for the post of Chief

Engineer on the plea that he belonged to the Electrical Wing, It was also

held that the post of Chief Engineer was a post of merit and, therefore, no

member of the service could be promoted to it nor any one could be

appointed to it by transfer unless he satisfied the basic criteria of

merit. The Tribunal was of opinion that there was no clear indication in

the Rules if the post of Chief Engineer could be filled by bringing an

officer from outside on deputation. On merits the Tribunal was of the

opinion that the respondent was arbitrarily excluded from eligibility.

Further the appellant attempted to appoint another person from Punjab

Service contrary to the provisions of the Rules and to over-reach the order

passed by the Tribunal. It also held that despite the direction issued by

the Tribunal the appellant excluded the respondent from consideration by

holding him unsuitable without following proper procedure for consideration

and assigning any valid reason for the same. The Tribunal consequently

quashed the appointment of a deputationist from Punjab Service as being

violative of statutory rules and directed that fresh Departmental Promotion

Committee may be constituted which may consider the eligible candidates in

accordance with the provisions of statutory rules and the policy

instructions on the subject issued by the Chandigarh Administration from

time to time. The Tribunal further directed that in case it was found that

no one suitable was available from Chandigarh Administration then only the

appellant shall appoint the Chief Engineer by selecting a suitable person

on deputation purely as an ad-hoc arrangement with a clear provision that

the moment the onion Territory cadre Superintending Engineer becomes

available for promotion to the post his claim would be duly considered for

promotion to that post.

Since till now no rules have been framed by the appellant and the draft

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rules are still awaiting approval the appointment and promotion to the post

of Chief Engineer in the Union Territory of Chandigarh is undisputedly

governed by the Rules. The 'service' under rule 3 comprises of Assistant

Executive Engineers, Executive Engineers, Superintending En-gineers and

Chief Engineers, Method of recruitment to the service is provided by rule

5. It contemplates appointment by direct recruitment, by transfer of an

officer already in the service of a State Government or the Union Territory

and by promotion from class-II service. Sub-rule (4) of rule 5 provides

that 'all first direct appointments to the Service shall be to the posts of

Assistant Executive Engineers' except in exceptional cases where an

appointment for reasons to be recorded may be made directly to the post of

Executive Engineer. All other posts, i.e., of Executive Engineer,

Superintending Engineer and Chief Engineer are promotional posts. Rule 9

provides that 'subject to the provisions of sub-rules (2) and (3), members

of the Service shall be eligible for promotion to any of the posts in the

Service, namely, Executive Engineers, Superintending Engineers and Chief

Engineers'. It is thus clear that the post of Chief Engineer is primarily a

promotional post. The eligibility for being considered for appointment to

the post of Chief Engineer is provided by clause (c) of sub-rule (3) of

rule 9 which reads as under :

"R.9. - Promotion with service.-

(1)...................................................

(2)...................................................

(3) A member of the service shall not be eligible for promotion to the rank

of -

(c) Chief Engineer, unless he has rendered three years service as

Superintending Engineer:

Provided that, if it appears to be necessary to promote an officer in

public interest the Government may, for reasons to be recorded in writing

either generally for a specified period or in any individual case reduce

the periods specified in clauses (a), (b) and (c) in such extent as it may

deem proper".

There is no further indication in the rule whether the post of Chief

Engineer shall be filled in by a Superintending Engineer (Civil,) (Mechani-

cal) or (Electrical). Clause (4) of rule 2 defines a 'Chief Engineer' to

mean a Chief Engineer of Public Works Department, Buildings & Roads Branch

and includes a post declared by Government as of equivalent

responsibility', A reading of this definition along with what is provided

by rule 3 specifying the strength of service and the definition of

Executive Engineer and Superintending Engineer make it abundantly clear

that the Chief Engineer is at the apex of service which comprises of four

layers. The Assistant Engineer is at the threshold. The next post in

hierarchy is Executive Engineer who under sub-rule (9) of rule 2 means, 'an

officer-in-charge of a division and includes an officer holding a post of

equivalent responsibility". Over him is the Superintending Engineer defined

in sub-rule (13) of rule 2 to mean, 'an officer-in-charge of an area known

as a Circle or whose duties are of equivalent responsibility to the charge

of a Circle'. The last promotional post under the Rules is from

Superintending Engineer to Chief Engineer. It is further clear that the

Rules contemplate three wings - civil, electrical and mechanical. Any

officer appointed in any wing becomes a member of the service and under

explanation under Sub-rule (1) of rule 9 he is liable to be promoted from

one rank to another and such promotion is regarded as a promotion within

the same cadre. Therefore, even through one officer may belong to one wing

or the other, he continues to be a member of the service within meaning of

sub-rule (14) of rule 2 which defines a service to mean, 'the Punjab

Service of Engineers Class I, P.W.D. (Buildings and Roads Branch)'. To say,

therefore, that the post of Chief Engineer is a post in the wing or cadre

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of Civil Engineer, would not be correct. The engineer in the electrical or

mechanical wing is as much a member of the service as a civil engineer.

Therefore, when the Rules provide that the Superintending Engineer who has

put in three years of service is eligible to be considered for promotion to

the post of Chief Engineer then in absence of any rule to the contrary it

has to be held that the field of eligibility is not confined to

Superintending Engineer (Civil) only, but it extends and includes

Superintending Engineer from other branches as well.

What was vehemently argued, however, to assail the order of the Tribunal,

was that since these Rules are for Buildings and Roads Branch, it is only a

Superintending Engineering (Civil) who could be appointed to the post of

Chief Engineer. The learned counsel for the appellant and intervenors urged

that the members of the Service under the Rules having been divided in

three cadres, i.e., Civil, Electrical and Mechanical and the post of Chief

Engineer being a promotional post only for Civil Engineers, the Tribunal

committed an error of law in directing that the respondent who is

Superintending Engineer (Electrical) shall be deeemed to be eligible for

it. The learned counsel submitted that a 'member of the Service' was

eligible for promotion from one rank to another in his own cadre, i.e.,

from the rank of Assistant Executive Engineer to the rank of Executive

Engineer and from Executive Engineer to Superintending Engineer. Ac-cording

to him any person appointed as Assistant Engineer (Mechanical) or

(Electrical) was appointed to the cadre of such Engineer, therefore, he

could be promoted in the cadre only. Reliance was placed on rule 6 which

prescribes qualification for recruitment to the Service. It was urged that

since no person could be appointed to the Service unless he possessed one

of the university degrees or other qualifications prescribed in Appendix B

of the Rules unless the qualification was waived by the Government, it was

apparent that a person appointed to a particular cadre on the strength of

his qualification could be promoted within the cadre from one rank to the

other. In support of the submission, Note to Appendix B of rule 6 which

reads as under was relied :

"The candidates to be appointed for Civil posts shall be recruited with

qualification in Civil Engineering, where as those recruited in the

Electrical Engineering Unit shall possess qualifications in Electrical

Engineering. Candidates recruited from Mechanical charges will be required

to possess degree in Mechanical En-gineering".

The learned counsel urged that every post in the Service is classified as

Civil, Electrical or Mechanical. And since the post of the Chief Engineer

in the Engineering Department of the Chandigarh Administration belonged to

the Civil Cadre, no other Superintending Engineer from any other branch or

cadre could be considered to be eligible for it. The submissions were

attempted to be supported by the practice followed by the Department and

that a Superintending Engineer (Electrical) or (Mechanical) was never

promoted as Chief Engineer in Punjab. It was further urged that in fact

even though there were senior Superintending Engineers (Electrical) or

(Mechanical) in Punjab Service, yet all the four posts of Chief Engineers

were occupied by Superintending Engineers (Civil) only. It was also

submitted that the Department has been following this practice as a Civil

Engineer has to undergo and study the course for electrical and mechanical

whereas it was not vice-versa. The learned counsel submitted that the

Department has understood and construed these Rules in view of the Note to

Appendix B of rule 6 so that a person appointed in the Cadre of Civil,

Electrical, Mechanical or Building Depart-ment is entitled to move up on

promotional ladder in his own cadre so much so that if a cadre closed at

the level of Executive Engineer or Superintending Engineer, then no

engineer of one cadre could claim promotion to the other cadre. Therefore,

any Superintending Engineer in the Cadre of Electrical or Mechanical could

not claim to be appointed as Chief Engineer in Buildings and Roads

Departments as it was a post for promotion of Civil Engineer only.

Despite strenuous effort, none of the learned counsel could make good their

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submissions that the post of Chief Engineer was a promotional post for

Superintending Engineer (Civil) only. No rule supports the sub-mission that

the post of Chief Engineer is a cadre post of civil engineer. Even

otherwise, the submission does not bear close scrutiny. An engineer is no

doubt appointed in different branches on the qualifications held by him.

For instance, a graduate in civil engineering may not be eligible for being

appointed as Assistant Executive Engineer (Mechanical) or (Electri-cal).

These are different branches and the bifurcation is made not only in the

service but the education itself is imparted for all these branches

separately. That is why the Rules prescribe qualifications for each post by

providing that a graduate or diploma holder shall be appointed in the

branch for which he was qualified. But that does not help the appellant as

even assuming that the Rules contemplate three different Cadres, namely,

Civil, Electrical and Mechanical, and each Cadre may have promotional

avenue depending on the strength of the Cadre which clearly depends on the

workload etc. the question still is whether the post of Chief Engineer is a

cadre post for Civil Engineer. It does not appear to be so from the Rules.

The definition of 'Chief Engineer' shows that he is Chief Engineer,

Buildings & Roads Branch. This branch comprises not only of civil en-gineer

but electrical and mechanical as well, To argue, therefore, that the post

of Chief Engineer is in the cadre of civil would not be in consonance with

the Rules.

Nor is there any merit in the submission that there being no post for

Electrical Superintending Engineer in Chandigarh, till recently, it was

indicative that the post of Chief Engineer was a post to be filled from

Superintending Engineer (Civil). It is common knowledge that the workload

in civil branch is much more in P.W.D. than electrical and mechanical and,

therefore, it may be that in the Cadres of Electrical and Mechanical, the

promotional ladder may not be as extensive and high as civil. For instance,

there may be 100 engineers in civil, 10 in electrical and one in

mechanical. Consequently, there may be more posts of superintend-ing

engineer in civil than electrical and may be none in mechanical. And,

therefore, whenever occasion arose in past a Superintending Engineer

(Civil) was promoted. But once a post is created by the Government in

mechanical or electrical then there is no indication in the Rules nor is

there any rationale for excluding a Superintending Engineer appointed in

the Electrical or Mechanical Branch from the field of eligibility for the

post of Chief Engineer. It may be true that due to non-existence of post of

Superintending Engineer in one branch, there may be senior Executive

Engineers who due to paucity of promotional avenues may be stagnating, but

that cannot furnish any basis for excluding that Superintending En-gineer

who has reached the promotional avenue in his own cadre. The illustration

given above may be examined again. If there is only one post of executive

engineer (mechanical) and no post of superintending engineer then can it be

said that in the other branch, namely, electrical where there are 10 posts

of executive engineers and one post of superintending engineer no promotion

can be granted from the post of executive engineer to superintending

engineer as the senior Executive Engineers in Mechanical Branch were

stagnating as Executive Engineer only. And if the answer is in negative as

it undoubtedly appears to be then it is equally fallacious to argue that a

Superintending Engineer of the Electrical Department cannot be eligible for

being appointed to the post of Chief Engineer only because he might be

junior in service to an Executive Engineer in the Mechanical Branch who

might be stagnating due to absence of any post of Superin-tending Engineer.

Reliance was placed by the learned counsel appearing for the State of

Punjab on Office Memorandum issued on 4th November 1966 on the subject,

'transaction of business in the Ministries of the Government of India in

relation to matters concerning the Union Territory of Chandigarh.' It

provided for creation and continuance of certain posts existing in the

Union Territory of Chandigarh from 1st November, 1966. It further provided

that except for the Department of Printing and Stationery, Architecture and

Post Graduate Institute of Medical Education and Re-search, Chandigarh the

post in the other departments under the control of the Chief Commissioner

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will be filled up by deputation mainly from Pun-jab/Haryana State cadres.

The learned counsel urged that this indicated that the appellant in filling

the post of Chief Engineer from an eligible person from Punjab was acting

in accordance with the Office Memorandum issued by the Union of India. The

learned counsel emphasised the word 'mainly' used in the Memorandum and its

construction by this Court in Swaran Lata v. Union of India & Ors., [1979]

2 SCR 953. Suffice it to say that when the order was issued the Union

Territory of Chandigarh had been constituted and, therefore, it was

necessary to provide for the filling up of the posts which were in

existence or were likely to arise in future from officers of Punjab and

Chandigarh cadre. But it could not be con-strued as precluding the officers

who have been appointed by the Chan-digarh Administration in the meantime

in different posts as it had to be filled by officers from Punjab and

Chandigarh. That could not have been the purpose and objective of the

Office Memorandum nor it can reasonably be construed in the manner as

argued by the learned counsel. Further the word 'mainly' used in the

Memorandum has not been construed by this Court to mean 'exclusively".

Therefore, if an officer who is eligible for being appointed to a post in

Chandigarh cannot be excluded on the basis of this office Memorandum from

the zone of eligibility.

Much was attempted to be made out from rule 10 which permits appointment by

transfer in special circumstances with the approval of the commission to

the service and the provisions in the Rules permitting appointment by

transfer and it was urged that the Rules themselves con-template that an

officer of the Punjab Service could be appointed by the administration to

the exclusion of any person in Chandigarh if the State was of opinion that

it was in the interest of service. It is true that the Rules do permit

appointment by transfer. But sub-clause (6) of rule 5 itself provides that

appointment by transfer of an officer will normally be made to the rank of

Executive Engineer except that specialists may be recruited to any rank. A

reasonable reading of the rule would indicate that the appointing authority

should not resort to appoint an officer above the rank of Executive

Engineer by transfer. The appointment of specialist is no doubt permissible

but that should be resorted to only if the officers in the State are not

available. The Rules cannot be understood to confer an unfettered

discretion in the State Government or the appointing authority who may

appoint any person from outside to the exclusion of a person from the cadre

unless it is found that the person concerned is not eligible and if

eligible then not suitable. The appointment of specialist as provided in

the Rules has to be resorted to in those exceptional circumstances where

the officer brought on. transfer is exceptional and the like of whom cannot

be found in the State itself. If the word 'specialist' is understood as

empowering the State to appoint anyone it considers appropriate it may lead

to arbitrariness. It has, therefore, to be limited to those exceptional

cases where public interest demands that a person from outside should be

appointed as he is of extraordinary merit and a specialist in the branch on

which he is being appointed and no officer from the State is available to

be appointed.

In the written submissions filed on behalf of the appellant an attempt has

been made to suggest that the present set up of Engineering Depart-ment of

Chandigarh Administration is a continuation of the Capital Projects set up

existing prior to reorganisation of the State of Punjab in 1966. It is

stated that Capital Project reorganisation was created mainly by taking

engineers from Punjab P.W.D., Buildings & Roads Brach, and the posts were

created commensurate with the job requirements. A copy of the Order of

Punjab Government dated 9.3.1953 indicated the sanction of the post is

appended which shows that the posts in the Capital Project were sanctioned

as follows :

Chief Enginer 1

Superintendent Engineer 1

Planning Circle

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Superintendent Engineer 1

Construction Circle

Executive Engineer 3

Construction Division

Executive Engineer 1

Materials Division

Executive Engineer 1

Electrical & Machanical Division

After the reorganisation continuation of temporary Group 'A' posts are

stated to have been sanctioned by the Government of India, Ministry of

Urban Development from time to time. Copy of one such sanction for the year

1991-92 has been attached. According to appellant, from this sanction it

was clear that except for the post of Superintendending Engineer

(Electrical) and Executive Engineer (Horticulture), all other posts have no

suffix added and are civil posts. From these, it has been attempted to

Support the argument advanced earlier that it was only the Superintending

Engineer (Civil) who was eligible to be considered for the post of Chief

Engineer. Suffice it to say that prior to reorganisation of State of Punjab

in 1966 there might have been no post of Superintending Engineer (Electri-

cal) or (Mechanical) but that cannot furnish basis for submitting that even

after 1966 when such posts were created, the incumbents of that post could

be excluded from eligibility to the post of Chief Engineer only because no

such post existed in 1966. Nor is there any merit in the submission that

since in 1992 the different post of engineers carried the suffix as

Electrical or Horticulture, therefore, the inference arises in law that the

post of Chief Engineer was a cadre post of Civil Engineers.

In Chandigarh the service has four branches - Civil, Electrical and Public

Health and Roads and Horticulture. It has been found by the Tribunal that

in past a Superintending Engineer, Public Health Wing was appointed as

Chief Engineer. The effort on part of the intervenors in the written

submission to dilute it when no objection was raised before Tribunal nor

the appellant challenged it in the petition filed in the Court cannot be

appreciated. However, on the construction of the rule, the Government in

appointing a Superintending Engineer of Public Health as Chief Engineer did

not commit any error of law. In the written submissions filed on behalf of

the appellant, the appointment of Shri Resham Singh has been justified on

the qualifications held by him which, according to appellant, was only

specialisation in civil engineering. For the reasons which have already

been mentioned earlier, it is not necessary to enter into this controversy

as to whether a Superintending Engineer who held the qualification as were

held by Shri Resham Singh could be considered to be a Specialist in civil

engineering and the thus eligible for the post of Chief Engineer.

Before concluding it is necessary to point out that apart from the

appellant the State of Punjab also filed a Special Leave Petition and an

application for permission to file the S.L.P. Another application was filed

by the intervenor who in the meantime claims to have become eligible for

being appointed as Chief Engineer. Even though the application of the

intervenor was not allowed at the time of hearing nor it appears necessary

to allow it yet the learned counsel appearing for the parties were heard at

length to ensure that no injustice is done to anyone. The intervenor also

filed a written argument and attempted to bring on record certain facts

which have been vehemently opposed in the written arguments filed by the

respondent both on merits and for inaccuracy of statement of facts. Since

the application for intervention is not being allowed and the appeal is

being decided as a matter of law on construction of rule it does not appear

necessary to say any further. The intervenor's Application Nos. I.A. No. 3/

1991 is rejected. The application filed by the State of Punjab for

intervention is also rejected. The application filed on behalf of the State

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of Punjab to file the SLP is allowed.

In this connection it is necessary to mention that during hearing it

transpired that all the four Chief Engineers working in the State of Punjab

are from the civil side. The apprehension of those Chief Engineers ex-

pressed through their counsel and even by personal appearance by one of the

Chief Engineers was that if the construction as given by the Tribunal is

upheld a litigation may start which may result in reversion of the

occupants of that office. It is clarified that the decision that is being

rendered is in respect of the post of the Chief Engineer in Chandigarh.

Further, so far as the State of Punjab is concerned the construction that

is being placed on these Rules shall be prospective, as it has not been

brought to the notice that anyone from the Punjab Service challenged the

appointment of Chief Engineer from the Civil Branch.

In the result, this appeal fails and is dismissed. The SLP filed by the

State of Punjab is also dismissed. The appellant is directed to open the

sealed envelope containing the proceedings of D.P.C. held in the meantime

in pursuance of direction of this Court and proceed in accordance with law

as directed by the Tribunal. Time to comply with Tribunal's order is

extended by one month from today.

Appeal and petition dismissed.