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PETITIONER: VINAY KUMAR VERMA AND OTHERS

       Vs.

RESPONDENT: THE STATE OF BIHAR AND OTHERS

DATE OF JUDGMENT06/04/1990

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) RAMASWAMI, V. (J) II

CITATION:  1990 AIR 1689            1990 SCR  (2) 374  1990 SCC  (2) 647        JT 1990 (2)   135  1990 SCALE  (1)703

ACT:     Bihar Engineering Service Rules, 1939: Rule 4--Cadre  of District  Engineers created by executive  order---Merger  of with statutory cadre of Executive Engineers--Validity of.

HEADNOTE:     Rule  4  of the Bihar Engineering  Service  Rules,  1939 provided for recruitment to the cadre of Executive Engineers in the Bihar Public Works Department by (i) direct  recruit- ment,  and (ii) promotion from Class II Service.  The  State Government  by a memorandum dated February 18,  1977  merged with  the cadre of Executive Engineers of the  Public  Works Department,  the  cadre of  District  Engineers  functioning under  the Rural Engineering Organisation. The latter  cadre was  constituted by the State in 1965 by integration of  the Rural  Engineering Ceil of the Public Works  Department  and the  cadre  of District Engineers created by  the  erstwhile District  Boards  under the  Government  District  Engineers Service  Rules, 1957 framed under ss. 36(a) to 36(1) of  the Bihar and Orissa Local Self Government Act, 1885.     The  appellants-Assistant  Engineers assailed  the  said merger before the High Court on the ground that it adversely affected  their  chances  of promotion,  that  the  District Engineers’  Service  was constituted under  the  1957  Rules framed  under  the 1885 Act whereas the cadre  of  Executive Engineers in the Public Works Department was created by  the 1939 Rules, and, as such the two cadres having been  created under their respective statutory rules the same could not be merged by an executive order, and that since under rule 4(i) and  4(ii)  of the 1939 Rules recruitment  to  the-cadre  of Executive Engineers could only be by direct recruitment  and by way of promotion, the merger of District Engineers’ cadre with the Executive Engineers was contrary to the 1939 Rules. The High Court negatived their contentions. Dismissing the appeal, the Court,     HELD: 1. The appellants, who were Assistant Engineers in the  Bihar Engineering Service, Class II were  not  affected adversely  by the merger in any manner. The  District  Engi- neers were merged in the 374 cadre  of the Executive Engineers along with  the  permanent

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posts  which  they were holding on the date of  merger.  The cadre of the Executive Engineers was thus enlarged with  the result that more vacancies would become available in  future to be filled by way of promotion from the cadre of Assistant Engineers. The merger would thus operate to their  advantage rather than disadvantage. [378E-F]     2. The provincialised cadre of District Engineers  under the District Boards was constituted by the 1957 Rules but in the year 1977 when merger took place the District  Engineers constituted an entirely different cadre which was created in the  year 1965 as a part of Rural Engineering  Organisation. It did not have any statutory frame-work. Since the cadre of District Engineers under the Rural Engineering  Organisation was  created by the State Government by an  executive  order the  State Government could further merge the same with  any other  cadre by an executive fiat. The  Executive  Engineers were  governed by the 1939 Rules which are statutory.  Their statutory  character has not been interfered with. The  Dis- trict  Engineers were being merged with Executive  Engineers and not the vice versa. [378H, 379B,379D]     3.  Rule  4(i) and 4(ii) of the 1939 Rules do  not  come into picture at all. It was not a question of appointment of an  individual to the Service. A group of persons  similarly situated  in respect of rank and pay scale was sought to  be brought  into the Service along with their posts. The  State Government could always increase the number of posts in  the cadre  of Executive Engineers. The conditions of service  of the  existing  members of Service are not being  altered  or affected to their prejudice in any manner. [379E-F]     4. The merger order being a policy decision is in a  way supplemental to the Rules and does not go contrary to any of the provisions of the Rules. [379F-G]

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.  4008-09 of 1985.     From the Judgment and Order dated 26.9.1983 of the Patna High Court in C.W.J.C. No. 1634 of 1977. WITH C.M.P. Nos. 5513-14 and 19577-78 of 1988. 375 Shanti Bhushan and P.D. Sharma for the Appellants.     Tapesh  Chandra Ray, D.P Mukherjee, R.P. Singh and  S.N. Jha for the Respondents. M.P. Jha for the Intervener. ’ The Judgment of the Court was delivered by     KULDIP  SINGH, J. The question for our consideration  in these  appeals  is whether by an executive order  the  Bihar State  Government can merge the cadre of District  Engineers which is a part of "Rural Engineering Organisation" with the cadre  of  Executive Engineers governed by  statutory  rules called the Bihar Engineering Service Rules, 1939  (hereinaf- ter called the 1939 Rules). Necessary  facts  to  determine the above  question  are  as under:-     The  cadre  of  District Engineers was  created  by  the erstwhile  District  Boards in the State of Bihar.  The  re- cruitment  and conditions of service of the said cadre  were governed by the Government District Engineers Service Rules, 1957  (hereinafter called the 1957 Rules) which were  framed under  the Bihar and Orissa Local Self Government Act,  1885 (hereinafter called the Act). Apart from the District  Engi- neers, a Rural Engineering Cell of the Public Works  Depart-

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ment was also functioning in ’the rural areas. Bihar Govern- ment by an order dated February 9, 1965, integrated the  two into  one organisation called "Rural  Engineering  Organisa- tion" (hereinafter called REO).     The REO was an entirely new department headed by a Chief Engineer  with the powers of Inspector of Local Works  under the Act. Two posts of Superintendent Engineers, 19 posts  of District  Engineers  and number of other  subordinate  posts were created under the Chief Engineer. In the new set-up the cadre  of  District Engineers created under the  1957  Rules became almost extinct and assumed a new shape under the REO.     On  the other hand, the cadre of Executive Engineers  in Bihar  Public  Works  Department was governed  by  the  1939 Rules. Rule thereof is as under:          "4.  Sources  of  recruitment--Recruitment  to  the service shall be made-- 376 (i) by direct recruitment, and (ii) by promotion from the Bihar Engineering Service,  Class II  .....  "     The Bihar Government by a Memorandum dated February  18, 1977,  decided  to  merge the cadre  of  District  Engineers belonging  to the REO with the cadre of Executive  Engineers of  the Public Works Department. The operative part  of  the order is as under: "Therefore,  in  the  public interest,  the  Government  has decided  that the cadre of the District Engineers be  merged with the equivalent/parallel cadre of Executive Engineers of Public Works Department."     Vinay  Kumar Verma and others, who were working  as  As- sistant  Engineers in the Bihar Engineering  Service,  Class II,  challenged the above-mentioned merger-order before  the Patna High Court on the following grounds: (i)  Under the 1939 Rules Assistant Engineers  are  eligible for promotion to the posts of Executive Engineers. By  merg- ing  the cadres, the chances of promotion of  the  Assistant Engineers  are likely to be adversely affected and  as  such merger order is arbitrary and is liable to be quashed. (ii)  That the District Engineers’ service  was  constituted under  the  1957  Rules flamed by the  State  Government  in exercise of the powers under Sections 36(a) to 36(f) of  the Act.  The cadre of Executive Engineers in the  Public  Works Department  was  created by the 1939 Rules. The  two  cadres having been created under their respective statutory  rules, the same cannot be merged by an executive order. The  compo- sition  of cadres created by the statutory rules  cannot  be changed by an executive order. (iii) Under Rule 4(i) and 4(ii) of the 1939 Rules,  recruit- ment  to  the cadre of Executive Engineers can  only  be  by direct  recruitment and by way of promotion. The  merger  of the District Engineers cadre with the Executive Engineers is thus  contrary to the 1939 Rules and as such cannot be  sus- tained. The High Court found that the chances of promotion of the 377 Assistant Engineers were in no way adversely affected by the merger as the District Engineers came to the cadre of Execu- tive  Engineers along with their posts. The High Court  fur- ther held that the Assistant Engineers who were in the lower cadre could not challenge the merger specially when the same did not affect their rights in any manner.     On the other two points the High Court relied on Rule 56 of  the Bihar Service Code, 1952 which is in  the  following terms: "56(a) The State Government may transfer a Government  serv-

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ant from one post to another  .....  "     The  High Court held that the Government has  the  power under the above quoted rule to transfer a Government servant from  one  cadre to another. According to  High  Court  even though  the  merger is not explicitly under rule  56(a)  but since the power is there the District Engineers be deemed to have  been  transferred to the Public  Works  Department  in terms  of the said Rule. The High Court dismissed  the  writ petitions of the Assistant Engineers. This is how these  two appeals by way of special leave are before us.     Mr.  Shanti Bhushan, learned Senior Advocate,  appearing for the appellants has reiterated the above mentioned  three points in his arguments before us.     We  agree with the High Court that the  appellants,  who were Assistant Engineers in Bihar Engineering Service, Class 11, were not affected adversely by the impugned order in any manner.  The District Engineers were merged in the cadre  of the Executive Engineers along with the permanent posts which they  were holding on the date of merger. The cadre  of  the Executive  Engineers was thus enlarged with the result  that more vacancies would become available in future to be filled by  way of promotion from the cadre of Assistant  Engineers. The merger would thus operate to their advantage rather than disadvantage.     The second point as projected by Mr. Shanti Bhushan does not  arise  in the facts and circumstances  of  the  present case. It is no doubt correct that initially the cadre of the District  Engineers was constituted by the 1957 Rules  which were framed under the 1885 Act, but by the time the impugned order was issued in the year 1977, it was operating 378 as an entirely different cadre created in the year 1965 as a part of REO. The REO, which was new department, consisted of a Chief Engineer, two Superintending Engineers,  19 posts of District Engineers, number of Assistant Engineers and  Over- seers.  The District Engineers were no longer  a  provincia- lised cadre under the District Boards as created by the 1957 Rules  but was a new cadre operating under the REO. We  are, therefore, of the view that the cadre of District  Engineers under  the  REO was created by the State  Government  by  an executive  order  and  as such the  State  Government  could further merge the same with any other cadre by an  executive fiat.     The  third limb of the argument based on Rule  4(i)  and 4(ii)  of  the  1939 Rules may now be examined.  It  is  not disputed that the District Engineers were equivalent in rank to the Executive Engineers. The pay-scales were also identi- cal.  The two equivalent and parallel cadres were  operating in two different fields. To achieve administrative efficien- cy  the State Government wanted to merge these  cadres.  The Executive  Engineers were governed by the 1939  Rules  which are  statutory,  whereas the District Engineers  created  by Government  order  dated February 9, 1965 did not  have  any statutory  flame-work.  The  statutory  cadre  of  Executive Engineers  has  not been interfered with.  It  is  operating under  the  1939  Rules. The District  Engineers  are  being merged with Executive Engineers and not the vice versa. Rule 4(i) and 4(ii) of the 1939 Rules do not come into picture at all. It is not a question of appointment of an individual to the service. A group of persons similarly situated is sought to  be  brought into the service. The State  Government  can always  increase the number of posts in the cadre of  Execu- tive Engineers. What is being done by the impugned order  is that the incumbents of the posts are also being brought into the cadre along with the posts. The conditions of service of

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the  existing  members of service are not being  altered  or affected  to their prejudice in any manner. In fact none  of the  Executive Engineers has challenged the impugned  order. After  merger the District Engineers would also be  governed by  the 1939 Rules. The impugned order being a policy  deci- sion  is in a way supplemental to the Rules and does not  go contrary to any of the provisions of the Rules.     We  therefore  see  no force in the  arguments  of  Shri Shanti Bhushan. The  view which we have taken to uphold the impugned  order, we 379 do not wish to express any opinion on the applicability  and interpretation of Rule 56 of the Bihar Service Code, 1952 on which the High Court has relied.     The  appeals fail and are dismissed with no order as  to costs.  The  Civil Miscellaneous Petition Nos. 55  13-14  of 1988  and  19577-78  of 1988 are also  dismissed  as  having become infructuous. P.S.S.                                               Appeals dismissed. 380