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2005 Supreme(SC) 1353
2005(7) Supreme 136
Supreme Court of India
(From Madras High Court)
S.B. Sinha & R.V. Raveendran, JJ.
U.O.I. through Govt. of Pondicherry & Anr. —Appellants
versus
V. Ramakrishnan & Ors. —Respondents
Civil Appeal No. 6332 of 2005
[Arising out of SLP (C) No. 18026 of 2005]
With
Civil Appeal Nos. 6333-34 of 2005
[Arising out of SLP (C) Nos. 18760-18761 of 2005]
Decided on 7-10-2005
Counsel for the Parties :
For the Appellant : G.E. Vahanvati, Solicitor General, V.G. Pragasam, Advocate.
For the Appellants in C.A.Nos. 6333-34/2005 : V.A. Bobde, Sr. Advocate, K.V. Viswanathan, Atul Kumar Sinha and B. Raghunath, Advocates.
For the Respondents : P.P. Rao and Ms. Nalini Chidambaram, Sr. Advocates, Ms. Indu Malhotra, Md. Rafi and Vikas Mehta, Advocates.
Important point
Draft rules cannot be made a basis for grant of promotion when Rules to the contrary is holding the field.
Headnote:
A. Constitution of India, Article 309 - Service Rules made validly- Even if becomes unworkable, unless repealed or replaced by another rule or amended, continues to be in force - A rule does not become inoperative only because the UPSC says so-As regard, scale of pay, the matter should have been referred to the anomaly removal committee-. In terms of the new rules, the criteria prescribed under the old rules were modified-Thus, till the new rules were given effect to, no promotion to the post of Chief Engineer could be effected in derogation to the criteria prescribed under the existing rules [Paras 21 to 24 ]
B. Constitution of India, Article 14 - Status of Deputationist - A deputationist indisputably has no right to be absorbed in the post to which he is deputed- However, there is no bar thereto as well. When the tenure of deputation is specified, despite a deputationist not having an indefeasible right to hold the said post, ordinarily the term of deputation should not be curtailed except on such just grounds as, for example, unsuitability or unsatisfactory performance ( para 25 )
C. Constitution of India, Article 14 - Central Administrative Tribunal (Procedure) Rules, 1987, Rule 12 - Opportunity of hearing - Plea of not giving opportunity not raised before the High Court, cannot be allowed to be raised before the Supreme Court first time. ( para 28 )
[Para 28]
Judgment
S.B. Sinha, J.—Leave granted.
2. The First Respondent herein was appointed on deputation as Chief Engineer of the Public Works Department, Government of Pondicherry on short term deputation/temporary basis pending selection of the regular incumbent by the Union Public Service Commission (UPSC) with effect from 1.7.2004. He was repatriated to his parent department on 14.2.2005 and relieved off from his duties on the same day. Questioning the same, an original application was filed before the Central Administrative Tribunal on 25.2.2005 praying interlia therein :
“....it is humbly prayed that this Hon’ble Tribunal may be pleased to quash the order passed by the 2nd Respondent in No. A.22012/I/PW-1/A1/2002 (Part) dated 14-2-05 as illegal and unconstitutional and thus render justice.”
3. R. Sundar Raju (Appellant in the connected appeal), Superintending Engineer, having three years experience, who was holding the current charge of the duties of the post of Chief Engineer at that time, in the meanwhile had filed an application questioning the deputation of the First Respondent herein. In the said original application, Government of Pondicherry inter alia raised a contention that he was not eligible to hold the post of Chief Engineer as he did not fulfill the eligibility criteria therefor. The said original application was dismissed on the ground of ineligibility to hold the said post and, a furthermore regular appointment in terms of the Rules was yet to take place. It was directed:
“We have already given a limited direction to the Respondents when the O.A. was entertained, to follow the Recruitment Rules as and when the post of Chief Engineer, PWD is filled up on regular basis. The Respondents have also assured that the Recruitment Rules will be revised and adhered to strictly when the question of filling up of the post of Chief Engineer on regular basis is taken up. In these circumstances, we are of the view that nothing survives in the relief sought for by the Appellant in this O.A. The interim orders are made absolute. The O.A. is disposed of accordingly. No order as to costs.”
4. In the meanwhile, draft rules were framed altering the eligibility criteria as regard experience for the post in terms whereof the eligibility clause of five years experience was reduced to three years. R. Sundar Raju was promoted on 27.04.2004 purely on adhoc basis.
5. The First Respondent, herein questioned the said appointment by filing an application for amendment in the pending original application on 23.6.2005 before the Central Administrative Tribunal which was registered as M.A.No. 258 of 2005 wherein he prayed for:
“It is prayed that this Hon’ble Tribunal may be pleased to amend the relief sought column in the main O.A. and it may be read as that this Hon’ble Court “may be pleased to set aside the promotion order of the Fourth Respondent passed by the Government of Pondicherry in No. 473/PW1/A1/2005 dated 27-4-2005 and direct the restoration of the applicant as Chief Engineer, Public Works Department, Pondicherry and thus render Justice.”
6. On or about 08.04.2005, R. Sundar Raju was recommended for promotion by the Departmental Promotion Committee to be promoted to the post of Chief Engineer and by order dated 27.04.2005, he was promoted to the said post purely on ad hoc basis. On or about 21.4.2005, the First Respondent was posted by the CPWD, New Delhi as Director of Works (SR) Chennai.
7. The original application filed by the First Respondent was allowed by the Central Administrative Tribunal by an order dated 14.7.2005. Both the Appellants preferred appeals therefrom before the High Court of Judicature at Madras and by reason of impugned judgment the said appeals have been dismissed holding that as the First Respondent was sent on deputation pending selection of the regular incumbent by the UPSC; till such regular selection is made, he had a right to hold the said post. So long, the draft rules were not approved by the Competent Authority
