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CASE NO.: Appeal (civil)  571 of 2002

PETITIONER: K. K. Tiwari & Ors

RESPONDENT: Union of India & Ors

DATE OF JUDGMENT: 21/04/2008

BENCH: A. K. Mathur & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T REPORTABLE

CIVIL APPEAL NO. 571 OF 2002

Lokeshwar Singh Panta, J.

1.      This appeal by special leave is directed against the  judgment and order dated 9th August, 2001 passed by the  Division Bench of the High Court of Allahabad at Allahabad in  Civil Miscellaneous Writ Petition No. 10242/2000 and Civil  Miscellaneous Writ Petition No. 18114/2000.  By the common  judgment under challenge, the High Court dismissed the writ  petitions whereby the order dated 8th February, 2000 passed  by the Central Administrative Tribunal (hereinafter referred to  as ’the Tribunal’), Allahabad Bench, Allahabad, in O.A. No.  465/1999 was affirmed, whereunder the Tribunal directed the  Union of India through the Secretary, Ministry of Defence \026  respondent No.1, Engineer-in-Chief, Army Head Quarters \026  respondent No. 2 and Union Public Service Commission \026  respondent No. 3 herein to fill in the posts of Executive  Engineer in proportion of 2/3rd from the Assistant Executive  Engineers and 1/3rd from Assistant Engineers in accordance  with the relevant rules. 2.      Facts relevant and necessary leading to the filing of this  appeal may be stated. 3.      There are two feeder channels for promotion to the post  of Executive Engineers (EEs): (i) from direct recruit known as  Assistant Executive Engineers (AEEs) and (ii) from the grade of  Assistant Engineers (AEs) (promotees).   4.      The rules governing the service of the cadres framed  under Article 309 of the Constitution of India are called ’the  Indian Defence Service of Engineers (Recruitment and  Conditions of Service) Rules, 1991 (hereinafter referred to as  ’the Rules’).  The appellants in the present case are the AEs,  whereas private respondent Nos. 4 to 10 are AEEs.  The AEEs  are appointed by direct recruitment on the basis of selection  made by Union Public Service Commission (for short ’the  UPSC’).  5.      A Circular dated 29.07.1997 was issued by respondent  No.2 in which it was stated that as on 1.4.1997 out of the then  sanctioned strength of 445 posts of EEs, 354 posts (as against  297 posts) were occupied by those employees who have been  promoted from the cadre of AEEs, while 76 posts (as against  148 posts) by those who belong to the cadre of AEs.  It was  also stated in the said Circular that the total demand for the

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year 1997-98 to the cadre of EEs was 58 posts, which were  directed to be filled in by promotion from amongst AEs only. 6.      The private respondents herein challenged the order  dated 29.07.1997 of the Engineer-in-Chief \026 respondent No. 2  before the CAT, Principal Bench, Allahabad.  The Tribunal by  its order dated 08.02.2000 partly allowed the O.A. and  directed respondent Nos. 1 to 3 to fill up the vacancies by  promotion in the ratio of  2/3rd from AEEs and 1/3rd from AEs in  accordance with the provisions of the relevant rules.    7.      Feeling aggrieved by and dissatisfied with the order of the  Tribunal, two writ petitions, one by the appellants and another  by the Engineer-in-Chief, were preferred before the High Court  of Allahabad. 8.      Having heard the learned counsel for the parties and  having perused the entire record, the Division Bench of the  High Court has found no substance in the writ petitions and  accordingly dismissed the same inter alia holding as under:- "The order of the Engineer-in-Chief  dated 29.7.1997 can at best be treated  to be an executive instruction.  If the  rules are silent on any point the  Government can fill up the gaps and  supplement the rules and issue  instructions consistent with the rules  already framed.  But they cannot run  contrary to statutory provisions or  whittle down their effect.  The office  memorandum dated 29.7.1997 clearly  runs contrary to the provisions of the  rules and as such, it is illegal.  The  order passed by the CAT directing  respondent nos. 1 to 3 to fill up the  vacancies in proportion of 2/3rd of  Assistant Executive Engineers and 1/3rd  from Assistant Engineers is, therefore,  perfect, legal and calls for no  interference. In view of the discussion made above,  both the writ petitions lack merit and  are hereby dismissed."    

9.      Hence, AEs-appellants have filed this appeal questioning  the correctness and validity of the judgment of the High Court. 10.     Mr. P.S. Patwalia, learned senior counsel appearing on  behalf of the appellants, contended that the High Court erred  in reading Rule 7 of the Rules separately from Schedule III  appended to the Rules while construing the words "post to be  filled" in Column 3 of Schedule III to mean the available  vacancies at a given point of time and thus, instead of  applying the quota to the "duty posts" or the cadre, has  wrongly applied it to the vacancies.  According to the learned  counsel, if the interpretation to the duty posts as given by the  High Court is accepted, miscarriage of justice shall be  perpetuated to the AEs who shall never achieve their due  share of quota as envisaged under the Rules.  He emphasized  that the quota prescribed by the rules shall strictly be adhered  to and any promotion made in excess of the quota will not give  right to the promotee to hold the posts meant for the other  feeder cadre and inaction of the Government to make  promotions from one feeder channel is not indicative of  breaking down of quota. 11.     Dr. R.G. Padia, learned senior counsel appearing on  behalf of respondent Nos.1 to 3, on the other hand, contended  that the Tribunal as also the High Court have passed well- reasoned and well-merited orders based upon the facts of the

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case, the relevant rules governing the service conditions of the  parties and the principles of law and, therefore, this Court  shall not be obliged to interfere with the judgment of the High  Court upholding the order of the Tribunal.  12.     In order to appreciate the rival contentions of the learned  counsel for the parties, we think it appropriate that the rules  relevant for the purpose of determination of the controversy  raised in this appeal need to be referred to.    13.     Rule 2(e) of the Rules defines ’duty posts’ to mean any  post specified in Column 4 of Schedule I.  In Rule 2 (h) ’grade’  means a grade of the Service specified in Column 1 of  Schedule 1.  ’Regular services in relation to any grade’ in  terms of Rule 2(j) means the period of service in the grade  rendered after selection according to procedure laid down by  the Government for long term appointment to that grade and  includes any period or periods: (i)     taken into account for purpose of seniority in the  case of these appointees in the initial constitution of  the service; (ii)    during which an officer would have held a duty post  in the grade but for being on leave or otherwise not  being available for holding such post.   14.     Rule 2(m) of the Rules defines ’Service’ to mean the  Indian Defence Service of Engineers constituted under Rule 3. 15.     Rules 3 deals with the Constitution of Indian Defence  Service of Engineers, which reads as under:- "There shall be constituted a service to be  known as the Indian Defence Service of  Engineers consisting of posts specified in  Schedule I."

16.     Rule 4 deals with grade, authorized strength and its  review. 17.     Rule 5 prescribes members of the service and reads as  under:- "The following persons shall be members  of the service, namely:-

"(a)    Persons deemed to have been  appointed to the service under Rule 6;  and (b)     Persons appointed to the service  under Rule 7."

18.     The Initial Constitution of the service on the  commencement of these Rules is governed by Rule 6, which  reads as under:- "All the existing officers in the Military  Engineer Services (Engineer Cadre)  holding Group ’A’ posts on regular basis  on the date of commencement of these  rules shall be deemed to have been  appointed to the corresponding posts and  grades in the service in the substantive or  officiating capacity, as the case may be,  at the initial constitution stage."   

19.     The material and relevant rule on the basis of which the  point in issue has been decided by the Tribunal and the High  Court reads as under:-

"Rule 7.  After the commencement of  these rules, the vacancies, excluding the  vacancies reserved for Army Officers  under the Military Engineer Services

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(Army Personnel) Regulations, 1989 shall  be filled in the manner as provided in  Schedules II, III and IV."  

20.     The relative seniority of members of the service is  governed by Rule 8. 21.     Schedule I attached to the Rules prescribes the names of  posts, total number of posts and number of posts, which are  to be held by Civilian Officers in each grade and scale of pay of  Additional Director General, Chief Engineer and Additional  Chief Engineer, Superintending Engineer (selection grade),  Superintending Engineer (ordinary grade), Executive Engineer  and Assistant Executive Engineer.  The total number of  sanctioned posts of EEs is mentioned 890, out of which 445  posts are to be held by Civilian Officers.   22.     Schedule II prescribes minimum educational  qualifications and age limits for direct recruits to the post of  AEEs Group ’A’ to be filled in on the basis of examination to be  conducted by the UPSC.   23.     Schedule III [see Rule 7] provides the method of  recruitment, field of promotion and minimum qualifying  service in the next lower grade or feeder grade for promotion to  duty posts in the various grades of the Indian Defence.  EEs  are placed at Serial No.6 of the Schedule.  EEs posts in terms  of Column 4 of the Schedule are to be filled in by two channels  of promotions, viz. (i) 662/3% posts are to be filled on non- selection basis from the grade of AEEs with four years regular  service in the grade with a Degree in Civil, Mechanical or  Electrical Engineering or equivalent from a recognised  University/Institution and 33.1/3% posts to be filled on  selection basis from the grade of AEs with 8 years regular  service in the grade and possessing Degree in Civil,  Mechanical or Electrical Engineering or equivalent from a  recognised University/Institution [see Column 5]. 24.     We have given our anxious consideration to the above  raised contentions of the learned counsel for the parties in the  light of the above-extracted relevant Rules.   25.     Rule 7 on its bare reading does not make reference to  Schedule I, which provides that 445 numbers of posts are to  be held by Civilian Officers in the cadre of EEs.  The Rules  nowhere provide that the total strength of the cadre of EEs has  to be consistently maintained in a manner that 2/3rd cadre is  manned by those who are promoted from the posts of AEEs  and 1/3rd cadre is manned by those who have been promoted  from the post of AEs.  It appears from the record that the  entire basis for issuing the Circular dated 29.7.1997 by  respondent No.2 was that in the cadre of EEs the ratio of such  officers who had been promoted from the post of AEs had been  depleted and after calculation of the posts, the deficiency has  been found to the extent of 58 vacancies and, therefore, the  vacancies should be filled in from amongst AEs only for a  particular year 1997-98.  The High Court, in our opinion, was  right in holding that such a direction in terms of the Circular  of respondent No.2 did not find support from the rules as Rule  7 neither refers to Schedule I which prescribes the total  strength of the cadre nor it provides anywhere further that  recruitment shall be made in a manner so as to maintain the  ratio of 2/3rd and 1/3rd in the entire cadre for a particular  year.  The language of Rule 7 is very clear and unambiguous  and it emphasises that after the commencement of the Rules  which came into force on 9th July, 1991, the vacancies shall be  filled in a manner provided in Schedule III.  Schedule III, as  earlier noticed, prescribes that the post of EEs shall be filled in  the ratio of 662/3 posts to be filled on non-selection basis from  the grade of AEEs and 33.1/3 posts have to be filled on

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selection basis from the post of AEs.  The expression "posts to  be filled" used in the rule clearly indicates and means that  whenever any selection is made to the post of EE, the ratio,  the criteria and the essential minimum qualifying service in  terms of Schedule III shall have to be strictly followed and  adhered to and any promotion in excess of the quota will  result in breaking down the prescribed quota. Thus, the  language of Rule 7 read with Schedule III governing the service  conditions has to be read harmoniously with meaningful  construction.  It is not possible or advisable to interpret the  ratio of 2/3rd and 1/3rd as prescribed in Schedule IV of Rule 7  in the manner that all the 58 posts of EEs for the year 1997- 98 should be filled in by promotion from the cadre of AEs only.   If the claim of the appellants that all 58 posts of EEs for the  year 1997-98 are to be filled in by promotion from amongst the  AEs cadre only is accepted, then the quota rule as prescribed  by Rule 7 read with Schedule IV shall break down with the  result that the ratio of 2/3rd and 1/3rd prescribed in the rules  for AEEs and AEs has to be ignored and resultantly a situation  may arise when one cadre will get excess quota as compared  to other feeder cadre.  If we construe the service rules in right  perspective and read their provisions in a harmonious manner  then the desired result can be achieved.  If the interpretation  which is sought to be given by the learned senior counsel for  the appellants is to be accepted, then it is likely to disturb the  ratio in the cadre strength of sanctioned strength.  When the  Rules say that posts of EEs shall be filled in from two  channels i.e. AEEs and AEs in the proportion of 662/3 and  331/3 respectively we cannot ignore the intention of the Rules. 26.     On evaluation of the findings recorded by the High Court  and for the reasons discussed hereinabove, we do not find any  manifest error or perversity in the judgment of the High Court  warranting interference in this appeal.   27.      In the result, the appeal is, accordingly, dismissed with  no order as to costs.