Judgment

S. Saghir Ahmad, J.-The dispute in the present appeal relates to the post of Chief Engineer (Civil) Level II, on which the appellant was ap­pointed after due selection.

2. The post of Chief Engineer (Civil) Level II in the Civil Construc­tion Wing of All India Radio was created on 28.8.1986. At the time of the creation of the post, there were no Recruitment Rules. Consequent­ly, the Government of India referred the matter to the Union Public Service Commission for its advice as to the mode and manner of making appointment to the post. The Commission, by its letter dated 9.9.1988 advised that till the Recruitment Rules are made, appointment on the post of Chief Engineer (Civil) level II may be made by a composite method, namely, by a promotion from amongst the suitable departmental candidates and if a suitable departmental candidate was not available, the post could be filled up by transfer on deputation.

3. In pursuance of the advice tendered by the Commission, an advertisement was made on 11th October, 1988 inviting applications for appointment on this post. The advertisement brought forth several outsiders as also departmental candidates, including the appellant and Respondent 4, who were interviewed by the Commission on 23-7-1990 and in the absence of a suitable departmental candidate, the appellant was selected and appointed to the post which he joined on 27.8.1990 on deputation from another department. It may be mentioned that the Recruitment Rules concerning the post in question were notified on 16-11-1990.

4. Respondent 4, who was one of the candidates for the post in ques­tion and was interviewed by the Commission, challenged the appointment of the appellant on the ground that in the absence of rules relating to this post, the Rules made under Article 309 of the Constitution for making appointment on the post of Chief Engineer (Civil) Level I should have been followed. This contention was upheld by the Tribunal, which by its impugned judgment dated 22.11.1991 held that the appointment of the appellant on the post in question was illegal. The direction was issued to the Government of India and other respondents concerned for making the appointment on the post in accordance with the Rules as they existed prior to 16.11.1990. The Tribunal indicated that, since the post of Chief Engineer (Civil) level II was created in the cadre of Chief Engineer (Civil) Level I, this post should also be regulated by the Rules applicable on making appointment to the post of Chief Engineer (Civil) Level I. The judgment passed by the Tribunal, in our opinion, is wholly erroneous and cannot sustained.

5. The Civil Construction Wing in All India Radio was constituted in 1973. The Rules which were first promulgated for regulating service conditions in the Civil Construction Wing were known as “All India Radio, Civil Construction Wing (Class I and Class II Posts) Recruit­ment Rules 1975” (for short Recruitment Rules). They came into force on 9.12.1975. The highest post indicated in these Rules was the post of Additional Chief Engineer (Civil Construction) which was abolished and in its place a post of Chief Engineer (Civil) was created, vide notification dated 23.12.1981. With the creation of this new post, the Recruitment Rules were amended.

6. The post of Chief Engineer (Civil Construction) was, however, abolished with effect from 17.9.1984, and in its place, the post of Chief Engineer (Level II) in the scale of pay of Rs. 2500-2750 was created. On 17.10.1985, the Recruitment Rules were amended and in place of the post of Chief Engineer, the post of Chief Engineer (Level I) was indicated in the Rules.

7. The post of Chief Engineer (Civil) Level II was created on 28.8.1986. It was a new post created with the sanction of the Presi­dent. This post was not included in the Schedule appended to the Recruitment Rules (as amended) and therefore, these Rules were not made applicable to the said post. It was for this reason that the Government of Ind