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CASE NO.: Appeal (civil)  5086 of 2007

PETITIONER: Union of India and another

RESPONDENT: Central Electrical & Mechanical Engineering Service (CE&MES) Group \021A\022 (Direct Recruits)  Association, CPWD & Ors

DATE OF JUDGMENT: 01/11/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO. 5086 OF 2007 [Arising out of SLP(C) No. 2960 of 2007]

S.B. SINHA, J.

1.      Leave granted.

2.      This appeal is directed against a judgment and order dated 24.5.2006  passed by a Division Bench of the High Court of Delhi at New Delhi in CM  Nos. 9506/2004 & 4393/2006 and W.P.(C) No. 13604/2004 & 13605/2004  dismissing an Order dated 17.12.2003 passed by the Central Administrative  Tribunal, Delhi Bench, Delhi in Original Application No. 864/2003. 3.      The basic fact of the matter is not in dispute.   4.      Central Public Works Department belonging to the Central  Government has its own Service Rules framed under the proviso appended  to Article 309 of the Constitution of India, known as \023Ministry of Urban  Affairs and Employment (Department of Urban Development) Central  Engineering (Civil) Group \021A\022 Service Rules, 1996\024 (Rules).  The said Rules  came into force with effect from 28.10.1996.  Whereas Rule 3 of the Rules  provides for \023Constitution of the Service\024, Rule 4 provides for \023Grade,  strength and its review\024.  The first schedule appended to the Rules provides  for the posts in the Central Engineering Service, Group \021A\022.  The hierarchy  of the officers has also been provided therein.  Rules govern the field of  recruitment as also the cadre strength.  Despite the fact that the terms and  conditions of the employees belonging to the said cadre are governed by the  statutory Rules, on or about 1.8.2002, a purported office order was issued,  the relevant part whereof reads as under:- \023To maintain interdisciplinary coordination amongst  various disciplines of CPWD, it has been decided that  at zonal level all the 4 disciplines, viz, Civil, Electrical  & Mechanical, Architecture & Horticulture of CPWD  shall work under the administrative supervision and  control of the zonal head, i.e. Chief Engineer.  The  officers of all disciplines in a zone will exercise their  delegated powers and will report to the Chief Engineer  who will further report to the ADG(Region).  This  system will function under the following guidelines:-

i)      Each zone shall be headed by a CE(C) or CE(E)  subject to the conditions there will be at least one  CE(E) heading a zone in each Region.\024

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5.    On or about 11.3.2003, another office order bearing No. 34/03 was  issued by the Central Public Works Department stating;       \023Sub:  Reorganisation of zones in New Delhi Region  under ADG (S&P) for unified control.

In pursuance of Ministry of Urban Development &  Poverty Alleviation Office Order No. 28017/2/2002- EW.1 dated 1.8.2002 and in order to maintain  interdisciplinary coordination amongst various  disciplines of CPWD, DG(W) CPWD is pleased to  reorganise the circles & divisions amongst NDZ-1 &  NDZ-2 and Electrical Zone, New Delhi Region on trial  basis.  The Electrical Zone (NDR) thus reconstituted  shall be known as New Delhi Zone-5.

2.      The officers of all disciplines in a zone will  exercise their delegated financial, administrative,  technical powers and will report to the Chief Engineer  of the zone, who will further report to the ADG (S&P)

3.       The Chief Engineer either Civil or Electrical as  zonal heads shall exercise his/her delegated powers for  both civil and electrical works.

4.       To facilitate technical sanction of estimates  above the delegated powers of SEs, zonal CEs will have  one EE(P) from the other discipline in their SE(P) unit.   In exceptional cases the CE of either discipline can  approach the ADG of the region for arranging technical  sanction of estimates of other disciplines.\024

        6.      Validity and/or justification of the said orders came to be questioned  before the Central Administrative Tribunal, Delhi Bench at Delhi.  The  Tribunal upon considering the matter at some length, opined that the  purported reorganization of the cadre strength by the appellant herein in  terms of the said office orders dated 1.8.2002 and 11.3.2003 were wholly  unsustainable.  The original application was, therefore allowed.  A Division  Bench of the Delhi High Court affirmed the said view of the Tribunal by  reason of the impugned judgment. 7.      Mr. R. Mohan, learned Additional Solicitor General appearing on  behalf of the appellant in support of this appeal submitted that the Tribunal  and consequently the High Court committed a serious error in passing the  impugned judgments and orders insofar as they failed to take into  consideration that reorganization of cadre was not necessary to be brought  about by amending the Rules.  It was contended that as by the said office  orders, neither any change in the cadre strength nor anybody\022s seniority, pay  packet or any other benefit having been effected, amendment to the Rules  was wholly unnecessary. 8.      Mr. Rajiv Dutta, learned senior counsel appearing on behalf of the  respondent, on the other hand, submitted that the office orders are clearly  ultra vires statutory rules framed by the Union of India inasmuch as by  reason thereof, another post is created which is not contemplated under the  statute. 9.      The aforementioned office orders dated 1.8.2002 and 11.3.2003 are  not statutory in character.  They even ex-facie do not satisfy the  requirements of Article 162 of the Constitution of India.  Indisputably, the  disciplines of Civil, Electrical and Mechanical in the Central Public Works  Department are different and distinct.  The said office orders provided that  disciplines referred to therein including Civil and Electrical were to work  under the control of the Zonal Head being either a Chief Engineer (Civil) or  Chief Engineer (Electrical).  It has not been denied or disputed that the post  of Chief Engineer (electrical or civil), was beyond the purview of the Rules.   It is beyond any cavil that there are posts of Chief Engineer in all the four

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wings of the Central Public Works Department.  The Rules provides for  posts of Civil Engineers.  As by reason of the impugned orders, some sort of  amalgamation of different cadres are sought to be made beyond the legal  sanction as envisaged under the Rules, in our opinion, the same is  impermissible in law.  Appellants before the High Court have admitted that  the Ministry had no intention to merge the civil and electrical streams which  were two distinct services having separate recruitment rules.  The said office  orders, thus, clearly interfere with the working of the statutory rules  inasmuch as by reason thereof, a post would be created which would be  designated as a Chief Engineer either Civil or Electrical, which belongs to  two different streams.   10.     It is now a well settled principle of law that an executive order must  be passed in conformity with the Rules.   Power of the State Government to  issue executive instructions is confined to filling up of the gaps or covering  the area which otherwise has not been covered by the existing Rules. See  Sant Ram Sharma Vs. State of Rajasthan & Anr. [AIR 1967 SC 1910] and   D.D.A. and Ors. Vs. Joginder S. Monga and Ors. [(2004) 2 SCC 297].  Such  office orders must be subservient to the statutory rules. 11.     For the reasons aforementioned, there is no merit in this appeal which  is dismissed accordingly.  In the facts and circumstances of this case  however, there shall be no order as to costs.