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PETITIONER: JACOB YAHANNANTHE ADMINISTRATOR, DADRA AND NAGAR HAVELI AND

       Vs.

RESPONDENT: H.P. VORA & ORS.

DATE OF JUDGMENT:       24/07/1997

BENCH: CJI, S. P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                             WITH                CIVIL APPEAL NO. 1689 OF 1993                       J U D G M E N T S.P. KURDUKAR, J.      These two  appeals by  Special Leave  arise out  of the judgment and  order dated 10th April, 1992 passed by Central Administrative Tribunal.  Bombay Bench,  Bombay in  O.A. No. 558 of 1989 filed by H.P. Vora, the first respondent in both the appeals.  Civil Appeal No. 256 of 1689 of 19932 is filed by the  Administrator and  the Collector,  Dadra  and  Nagar Haveli, Silvassa. 2.   The facts  set out in Civil Appeal No. 1689 of 1993 are as under:-      The Collector,  Dadra and  Nagar Haveli  on 26th March. 1989  published  a  provisional  gradation  list  of  Deputy Engineers/Assistant Engineers/Assistant  Surveyors of  Works (Civil) as  on 1st  January, 1984 and invited objections, if any, to  the said  provisional  gradation  list.  The  first respondent filed  representation against  the said gradation list alleging  that Assistant  Engineers/Assistant Surveyors of Works  (Civil) could  not have  been bracketed along with the Deputy  Engineers since they did not belong to the cadre of Deputy  Engineers. The Collector negatived the objections filed by  the  first  respondent  and  on  22nd  June,  1989 published    a    final    gradation    list    of    Deputy Engineers/Assistant Engineers/Assistant  Surveyors of  Works (Civil). Incidentally,  it may  be mentioned  that  in  this gradation list,  the first  respondent  is  at  serial  No.3 whereas Jacob Yahannan (appellant in civil appeal No. 256 of 1989) and  J.M. Lad  have been  placed at serial Nos.6 and 7 respectively. J.M.  Lad is  the third  respondent  in  Civil Appeal No.1689  of 1993.  Undisputedly therefore,  the first respondent is  shown senior  to Jacob Yahannan and J.M. Lad. Being aggrieved  by the  final  gradation  list,  the  first respondent  filed   O.A.  No.558  of  1989  in  the  Central Administrative Tribunal,  Bombay Bench,  Bombay  (for  short CAT, Bombay  ) praying  therein that the said gradation list be quashed  set aside Being null and void and further not to consider or  a point  Sh. Jacob  Yahannan or J.M. Lad to the Post of  Executive Engineer  and the  post not filled to any

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manner even by making a direct recruitment. According to the first recruitment.  According to  the first  respondent, the cadre of  Deputy Engineer is distinct and separate from that of Assistant  Engineer and  Assistant Surveyor of Words. The Collector while  preparing the  final common  gradation list has committed  a serous  illegally in  clubbing together the Deputy  Engineers,   Assistant   Engineers   and   Assistant Surveyors of  Works (Civil)  as equals and formed one cadre. The Assistant  Engineers and  Assistant Surveyors  of  Works (Civil) should  not have  included in  the Common  gradation list of  the Deputy Engineers. The Deputy Engineerings cadre is the  feeding cadre to the cadre of Executive Engineer. He (first respondent)  alone is  entitled to  be considered and promoted to  the post of Executive Engineer to the exclusion of jacob  Yahannan, J.M.  Lad and  other similarly  situated employees. The  first respondent, therefore, prayed that the final gradation  list be  quashed sat  aside and he alone be considered for promotion to the post of Executive Engineer. 3.   The appellant  joined the  issue and  contended.  inter alia. that  the Sectional Officer cadre is the feeding cadre to the  posts of  Deputy Engineers,  Assistant Engineers and the Assistant  Surveyors of  Works (Civil).  As and when the vacancies arose  in the  cadre of Deputy Engineers Assistant Engineers and  Assistant Surveyors  of  Works  (Civil),  the selection was to be made according to the Rules from amongst the eligible  Sectional Officers.  In  accordance  with  the exigencies of  services, such selected Sectional Officers on promotion  were  appointed  as  Deputy/Engineers.  Assistant Engineers and  Assistant Surveyors  of  Works  (Civil).  All these three  posts  carry  identical  pay  scales  are  also interchangeable. This  practice was followed in the past and wall understood  by everyone concerned in the PWD Department of the Administration of Dadra and Nager Haveli. In the year 1984, such  a common  gradation list  was prepared which was neither disputed  nor challenged by anybody. Consistent with this  practice,   the  impugned  final  gradation  list  was prepared by  the Collector  of Silvassa and therefore, there is no  substance in  the contentions raised on behalf of the first respondent.  It was  pleaged that  the past  record in this behalf confirms the then prevailing practice. The first respondent  was  also  appointed  and  worked  as  Assistant Surveyor of  Works (Civil)  in the  past Before he was given the charge  as Deputy  Engineer in  the year  1982.  Several other instances  were cited  to support  the  contention  of interchageability since  all these  three services  form one cadre although nature of work differs. 4.   Mr. Jacod  Yahannan filed  the  counter  affidavit  and supported the  plea of the Administration of Dadra and Nagar Haveli. 5.   Upon perusal  of  pleadings  of  the  parties  and  the material on  record. the  CAT Bombay  held that the posts of Assistant Engineers and Assistant Surveyors of works (Civil) form distinct  cadres and  cannot be equated with the cadres of Deputy  Engineers. Reliance was placed on the recruitment rules of  1968 where  the reference  is made to the cadre of Deputy Engineer  being a  feeding  cadre  to  the  cadre  of Executive Engineer.  Consistent  with  these  findings,  CAT Bombay vide  its judgment  and order  dated April  10,  1992 granted the  desired reliefs  to the  first  respondent  and directed the  appellants to  exclude Jacod  Yahnnan J.M. Lad from the  zone of  consideration to  the post  of  Executive Engineer. It  is this judgment and order of CAT Bombay Which is the subject matter of challenge in these two appeals. 6.   The three  questions which  arise for out determination in the  present appeals  are; (1)  whether  the  duties  and

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responsibilities attached  to the  posts of Deputy Engineers and to  that of  Assistant Surveyors  of Works and Assistant Engineers are  identical? (2)  whether can  there be  common gradation list  of Deputy Engineers, Assistant Engineers and gradation list  of Deputy Engineers, Assistant Engineers and Assistant Surveyors  of Work  (Civil)? and  (3) whether  the Assistant Engineers and Assistant Surveyors of Works (Civil) are eligible  to be considered for promotion to the posts on Executive Engineer along with Deputy Engineer? 7.   The Rules  relating to  the recruitment  to the post of Deputy Engineer  in Dadra  and Nagar  Haveli  Administration were framed  sometime in  January, 1968 wherein reference is made only  to the  cadre of  Deputy  Engineer.  The  tabular statement/appointment. Column  3 states  that it a selection post. Columns  6,7,8  and  9  prescribe  age  qualification, experience, probation  and direct  recruitment in  order  of preference. column  11 deals  with recruitment  by promotion etc. and it reads thus:-      "Promotion   to    (sic)    Section      Officers with  (a) 3  Years service      in the  case of  degree holding and      (b) 8  Years service in the case of      diploma   holders.    Transfer   on      deputation suitable officers of the      rank of  Asstt. Engineer  from  the      state   Public   Works   Department      (Period  of  deputation  ordinarily      not exceeding three years).      These Rules  were framed  in 1968. They are required to be construed  and interpreted in the context of expansion of the cadre  of Deputy  Engineer. Due  to service  exigencies, posts of  Assistant Engineers  and  Assistant  Surveyors  of Works (Civil)  were created from time to time and the feeder source thereof  was from  the Sectional  Officers.  The  pay scale of  all these  posts remained  identical and they were interchangeable. The nature of work of these three posts may be to  some extent  different but  they all along treated as connected with  the P.W.D.  Department. How these Rules were understood and  what was the practice followed in the P.W.D. in Dadra  and Nagar  Havali Administration is clear from the material produced  on record  Annexure  A  to  Civil  Appeal No.256 of  1993 sets  out details relating to the posting of the fist  respondent H.P.  Vora. From  4th October,  1972 to July 1974, he worked as Deputy Engineer O.S.R.C. From April. 1974 till March, 1975 he was posted as Assistant Surveyor of Works (ASW)  and was again transferred as Deputy Engineer in BDO Office  in 1976, July, 1976 to June 16, 1997 worked as a Deputy  Engineer  MII,  from  27th  December.  1978  to  5th February, 1979 and 16th May, 1979 to 31st May, 1979, he held the post  of Assistant  Surveyor of Works (Civil). Form July 1982 till  July 1986.  He was  the incharge of both. namely, M.I.I. and  From February,  1986 till  January, 1990, he was working as  A.S.W., Irrigation Division. The service card of H.P. Vora  maintained in form 25-B is at Annexure B to Civil Appeal No.256  of 1993.  This card  indicates  that  he  was working as  Assistant Surveyor of Works with effect from Ist April, 1974.  So is  the service record of jacod Yahanna who held the  post of  Assistant Surveyor  of Works (Civil) from 8th April,  1982 to  29th  September,  1982  and  from  29th September, 1982  onwards as Deputy Engineer. Annexure D sets out  details   of  various  other  officers  who  worded  as Assistant Surveyors  of Works  in  PWD  (Civil).  The  above record  of  services  of  the  first  respondent  and  other similarly situated  officers if considered in the context of the Rules of 1968 relating to the recruitment to the post of

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Deputy Engineer,  it would  be clear  that the  post  Deputy Engineer was treated for all practical purposes during these years as  equivalent to  that of  the Assistant Engineer and Assistant Surveyor of Works (Civil) and was interchangeable. The pay  scales of  all these three posts were identical and continued to  be  so  even  today.  The  gradation  list  of Executive Engineer  and Deputy  Engineers  of  Public  Works Department (Civil  Division) as  on January, 1984 would show that there  were the three permanent posts and six temporary posts of  Deputy Engineers.  Since there was increase in the work load  as on  Ist January,  1988, three  more  permanent posts and  eleven temporary  posts of  Deputy Engineers were created. The  record further indicates that from amongst the Deputy Engineers,  some of them were posted as the Assistant Engineer or  Assistant Surveyors  of Works (Civil) under the Administration of  Dadra  and  Nagar  Haveli.  The  official documents produced on record. therefore, leaves no manner of doubt that  the posts of Deputy Engineer, Assistant Engineer and Assistant  Surveyors of Works (Civil) form one cadre and the  services  of  officers  working  on  these  posts  were interchangeable. The  practice  that  was  followed  in  the Administration  of   Dadra  and  Nagar  Haveli  in  the  PWD department was that the duties and responsibilities attached to the  posts of  Deputy Engineers  and  that  of  Assistant Surveyors of  Works and  Assistant Engineers  were  to  some extent different  because of  exigencies  of  exigencies  of services but  they were  interchangeable. Their  pay  scales were identical.  The feeder cadre was the Sectional Officer, If this  be so.  it is  not possible to hold that the Deputy Engineer, Assistant  Engineer  and  Assistant  Surveyors  of Works (Civil) do not form a common cadre. The CAT Bombay has committed an error while holding that the Assistant Engineer and Assistant Surveyor of Works (Civil) do not belong to the cadre of  Deputy Engineers.  We, therefore,  set aside  this finding  and   hold  that  the  Deputy  Engineer,  Assistant Engineers and  Assistant Surveyor  of Works  form  a  common cadre  and   the  common  gradation  list  prepared  by  the Collector, therefore, cannot be faulted on any ground. 8.   Having held  that the  common gradation  list of Deputy Engineers, Assistant  Engineers and  Assistant  Surveyor  of Works (Civil)  suffers from no vice, it must follow that all such officers  do come  within the  zone of consideration to the post  of Executive  Engineer  and  are  required  to  be considered in  accordance with  law to  the said promotional post of Executive Engineer. 9.   Mr. Krisnan  Kumar, learned  Advocate appearing for the first respondent  urged that Mr. Jacob Yahannan and Mr. J.M. Lad were never appointed as Deputy Engineers and, therefore, they do  not fall in the feeder cadre i.e Deputy Engineer to the promotional  post of  Executive Engineer.  He urged that there only  one post  of Deputy  Engineer created  under the Rules of  1968 and,  therefore. Mr.  jacob Yahannan  and Mr. J.M. Lad  could not  be treated  as Deputy  Engineers.  This submission has  no force because the order of Administration of  Dadra   and  Nagar  Haveli  dated  29th  November,  1989 unmistakably indicates  that as  many as five officials were promoted to  the posts of Deputy Engineers from the cadre of Sectional Officer.  It is  obvious that  this  increase  was referable to  the exigencies  of service.  From the material produced on record, it is also clear that the cadre strength of Deputy  Engineers increased  form  time  to  time  having regard to  the need  felt by  the  Dadra  and  Nagar  Haveli Administration. The impugned, common gradation list prepared as on  Ist January,  1988 indicated  that there  were  three permanent  posts   and  eleven  temporary  posts  of  Deputy

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Engineers.  Therefore,   there  is   no  substance   in  the contention raised on behalf of the first respondent that the cadre strength of Deputy Engineer is only one. 10.  It was then contended that the bye-laws/Rules framed by Administration  are   binding  on  it  and.  therefore,  the Administration  of   Dadra  and   Nagar  Haveli  cannot  act contrary. Reliance was placed on two decisions of this Court (1) B.S.  Minhas Vs. Indian Statistical Institute and others 1953 (4)  SCC 582 in particular paras 23 and 24 and (2) D.D. Joshi and  others Vs. Union of India others AIR 1983 SC 420. However, we  do not  see any relevance of these decisions in the facts and circumstances of this case. 11.  In the  result,  both  the  appeals  are  allowed.  The impugned order  dated 10th April. 1992 passed by CAT Bombay, is quashed  and set  aside and  consequently O.A.No.  558 of 1989 filed  by the  first respondent  is dismissed.  In  the circumstances of  the case,  parties are  directed  to  bear their own costs.