Gurbaaz Singh & Ors. v. UOI & Ors.

1. The present writ petitions challenge an order of the Central Administrative Tribunal (CAT) dated 5.12.2000 and a subsequent order dated 30.05.2002 (latter in the course of proceedings which sought review of the earlier impugned order). The writ petitioners are directly recruited officers in the cadre of Assistant Executive 2014:DHC:3423-DB W.P. (C) 840 & 858/2003 Page 2 Engineers (AEE) which is a feeder grade to the post of Executive Engineer (EE) in the CPWD.

2. Briefly, the facts are that in the Central Engineering Service, the cadre of EE is to be filled from two sources, i.e., officials directly recruited from open competition (AEEs) and from amongst Assistant Engineers (AEs). The latter category comprises of two sub-divisions, i.e., graduates and diploma holders. For diploma holders, historically the eligibility was in the original rules framed under Article 309 of the Constitution in 1956. Initially, diploma holder Assistant Engineers were not entitled to promotion as EE. However, this situation changed in 1972 with an amendment which enabled diploma holders, with outstanding merit, to be considered for promotion to the post of Executive Engineer on an ad hoc basis. The present dispute concerns the sequel to a Presidential order/Notification of 06.07.1999, diverting 430 vacancies in the AEEs’ quota within the EE cadre which otherwise ought to have been filled in accordance with the quota stipulation. The post of EE was to be filled in the quota ratio of 2:1 between AEEs (direct recruits) and AEs (promotes), respectively. In other words, 66.6% of EE vacancies were to be filled by AEEs, while 33.3% were to be filed by AEs. The diversion of the posts was for the period prior to 28.10.1996 (i.e. the date on which newly framed rules under Article 309 of the Constitution came into force). The Central Government felt compelled to take recourse to this action because of non-availability of direct recruits AEEs in adequate numbers, for promotion to the post of Executive Engineers. This action was challenged by the AEEs through their Association (Class-I Direct W.P. (C) 840 & 858/2003 Page 3 Recruits Engineering Service Association). The challenge was repelled initially by the Tribunal. Upon proceedings being preferred under Article 226 of the Constitution, this Court has upheld the decision of the Tribunal in the judgment reported as Central Engineering Services Class-I (DR) Association & Ors. v. Union of India & Ors., 156 (2009) DLT 300. Apparently, this decision has been carried in appeal by the unsuccessful direct recruit AEEs by special leave to the Supreme Court where the proceedings are pending.

3. The present respondents (AEs), in the meanwhile, had approached the CAT for directions to fill the balance vacancies, which arose after filling up 322 vacancies in the post of Executive Engineers in accordance with the 1954 Rules. Their complaint was that the en masse action in regularizing all diploma holders AEs in the post of EEs was contrary to the pre-existing rules, inasmuch as it conflicted with the requirement of the zone of consideration as well as eligibility conditions.

4. After considering the submissions, the Tribunal made the following directions: -

19. In the above background, we believe that the ends of justice will be met if we dispose of this OA in terms of the following directions: i) “The respondent No.1 (Ministry/Deptt. Of Urban Development) will constitute a three Member Committee of Senior Officers to determine the eligibility of diploma holder AEs on the basis of their outstanding ability and record and would thereafter place the diploma holder W.P. (C) 840 & 858/2003 Page 4 AEs found eligible by the aforesaid Committee on par with the degree holder AEs having more than 3 years’ experience, with the combined list, prepared on the basis of the common seniority list, being forwarded for the consideration of the DPC. ii) The Committee of Senior Officers proposed in No.(i) above, will include the representative of the Deptt. Of Personnel & Training and a representative of the Director General, CPWD. The Committee will lay down appropriate criteria, in clear and unambiguous terms, in advance, for identifying the diploma holder AEs who may be persons of outstanding ability and record. iii) A review DPC will be held to consider promotion of both degree holder as well as diploma holder AEs on a regular basis to the rank of EE against all the pre-1996 RRs vacancies still available in the Ministry/Deptt. Of Urban Development & Employment. The review DPC will also consider recommending reversion of such of the degree holder and diploma holder AEs as are found not to possess sufficient merit in accordance with the norms devised by them.”

5. The present writ petitions have been preferred by AEEs who were not party to those proceedings. They approached the Tribunal with a review petition contending that its directions were likely to affect them adversely. It was contended on their behalf that the original determination of the Government with respect to the existence of 430 vacancies was a flawed one. In support of this contention, the petitioners argued - though unsuccessfully, that subsequent reviews within the Government and even the Lala Committee’s report had indicated that while making the order of W.P. (C) 840 & 858/2003 Page 5 6.7.1999, the existence of vacancies was exaggerated and overestimated and that, in reality, there were only 269 vacancies. The writ petitioners argued that in the absence of the proper determination of the exact number of vacancies, the acceptance of the respondents’ (i.e. the Original Applicants before the Tribunal) submissions, that 158 or so vacancies existed in the cadre of EEs, points an inaccurate picture, ultimately resulting in their/AEEs inadequate progression within the services. The same argument had been repeated in the course of the present proceedings.

6. Learned senior counsel for the petitioners relied upon the affidavit of the Central Government filed in the course of the present writ proceedings on 4.4.2003. It was submitted that unless appropriate modifications are made in the impugned order of the Tribunal, the direct recruit AEEs would be gravely prejudiced, and ineligible candidates/AEs would become their seniors, thus reducing their chances for further promotion.

7. On behalf of the applicants before the Tribunal, i.e., the graduates AEs, some of whom had been promoted as ad hoc Executive Engineers, it is submitted that no fault can be found with the Tribunal’s order. Learned senior counsel for the contesting respondents endeavoured to submit that the previous decision of this Court in the Central Engineering Services Class-I (DR) Association case (supra) had occasion to consider the issue regarding the number of vacancies as 430. As a result, there was no occasion to revisit the issue. He also relied upon the pleadings, especially the counter affidavit of the Central Government filed before the CAT in June W.P. (C) 840 & 858/2003 Page 6 2001, to submit that even though its stance was that the Lala Committee’s recommendations were available, the final decision to reject them had been taken and consequently, no further modification of the impugned order of the Tribunal was called for. Learned counsel lastly submitted that in any event, the order made in the Review Application amply clarifies and protect the applicants’ rights that the Tribunal left the question of exact number of vacancies to be filled, open for determination.

8. At the outset, this Court notices that Central Engineering Services Class-I (DR) Association case was as to the legality of the 06.07.1999 order from the angle - whether Rule 25 of 1954 Rules which embodies the power of relaxation - could encompass diversion of posts. Having held that such power existed, the Court went on to further hold that the Rules of 1954, and not those made subsequently in 1996, had to be utilized for this purpose. A textual reading of the judgment itself would disclose that the controversy as to the number of vacancies was not gone into; it was not even raised or urged by any of the parties. The underlying assumption was that 430 vacancies in the grade of Executive Engineers (upon diversion from the quota of AEEs) existed, and could be filled by previously promoted, ad hoc diploma holders Assistant Engineers.

9. The Central Government, in the present case, no doubt, mentioned before the Tribunal that it had sought to revisit the number of vacancies since, at one stage, it was felt that figure of 430 vacancies was a consequence of over reporting. However, at the same time, the affidavit of June 2001, states that as on that date, the W.P. (C) 840 & 858/2003 Page 7 Central Government was of the opinion that the original determination of 06.07.1999 ought to be treated as final. However, the Central Government appears to have changed its stand on this aspect, as is evident from its counter affidavit of 4.4.2003 in these proceedings. The present stand of the Central Government appears to be elaborated in paragraph nos.34-39 of its counter affidavit of 4.4.2003. Even while narrating the past events and its decisions to originally notify 430 vacancies, the Central Government stated as follows: -