Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2007 Supreme(SC) 1414

2007(8) Supreme 73
Supreme Court of india
(From Delhi High Court)
S.B. Sinha & Harjit Singh Bedi, JJ.
Union of India and another — Petitioners
versus
Central Electrical & Mechanical Engineering Service (CE&MES) Group A (Direct Recruits) Association, CPWD & Ors. — Respondents
Appeal (civil) 5086 of 2007
[Arising out of SLP(C) No. 2960 of 2007]
Decided on : 01-11-2007

Counsel for the Parties :
For the Appellant :R. Mohan, ASG., Sunil Roy and V.K. Verma, Advocates.
For the Respondent:Rajiv Dutta, Sr. Adv., Uday Gupta and Dharmendra Kumar Sinha, Advocates.

important point
Executive order must be passed in conformity with the Rules.

Headnote:(a)Service Law – Cadre reorganisation –The disciplines of Civil, Electrical and Mechanical in the Central Public Works Department being different and distinct and each having a Chief Engineer, requiring electrical and/or mechanical engineers to work under the control of the Zonal Head being either a Chief Engineer (Civil) or Chief Engineer (Electrical) without sanction of law is impermissible – More so because the post of Chief Engineer (electrical or civil), was beyond the purview of the Rules. (Para 9)
       (b)Service Law – Office orders – Office orders dated 1.8.2002 and 11.3.2003 neither statutory in character nor even ex-facie satisfying the requirements of Article 162 – Well settled that an executive order must be passed in conformity with the Rules, power of the State Government to issue executive instructions being confined to filling up of the gaps or covering the area which otherwise has not been covered by the existing Rules. (Para 10)
       AIR 1967 SC 1910; (2004) 2 SCC 297 – Relied upon.
       Facts of the case :
       1.Central Public Works Department belonging to the Central Government has its own Service Rules known as ‘Ministry of Urban Affairs and Employment (Department of Urban Development) Central Engineering (Civil) Group ‘A’ Service Rules, 1996. Whereas Rule 3 provides for ‘Constitution of the Service’, Rule 4 provides for ‘Grade, strength and its review’. The first schedule appended to the Rules provides for the posts in the Central Engineering Service, Group ‘A’. The hierarchy of the officers has also been provided therein. Rules govern the field of recruitment as also the cadre strength. Despite the fact that the terms and conditions of the employees belonging to the said cadre are governed by the statutory Rules, on or about 1.8.2002, a purported office orders were issued.
       2.Validity and/or justification of the said orders was questioned before the Central Administrative Tribunal, Delhi Bench at Delhi. The Tribunal opined that the said office orders dated 1.8.2002 and 11.3.2003 were wholly unsustainable. A Division Bench of the Delhi High Court affirmed the said view of the Tribunal by reason of the impugned judgment.
       Findings of the Court :
       Office orders dated 1.8.2002 and 11.3.2003 neither statutory in character nor even ex-facie satisfying the requirements of Article 162; hence are impermissible in law.
       Result : Appeal dismissed.

JUDGMENT

S.B. SINHA, J.—

1.Leave granted.

2.This appeal is directed against a judgment and order dated 24.5.2006 passed by a Division Bench of the High Court of Delhi at New Delhi in CM Nos. 9506/2004 & 4393/2006 and W.P.(C) No. 13604/2004 & 13605/2004 dismissing an Order dated 17.12.2003 passed by the Central Administrative Tribunal, Delhi Bench, Delhi in Original Application No. 864/2003.

3.The basic fact of the matter is not in dispute.

4.Central Public Works Department belonging to the Central Government has its own Service Rules framed under the proviso appended to Article 309 of the Constitution of India, known as “Ministry of Urban Affairs and Employment (Department of Urban Development) Central Engineering (Civil) Group ‘A’ Service Rules, 1996” (Rules). The said Rules came into force with effect from 28.10.1996. Whereas Rule 3 of the Rules provides for Constitution of the Service”, Rule 4 provides for Grade, strength and its review”. The first schedule appended to the Rules provides for the posts in the Central Engineering Service, Group ‘A’. The hierarchy of the officers has also been provided therein. Rules govern the field of recruitment as also the cadre strength. Despite the fact that the terms and conditions of the employees belonging to the said cadre are governed by the statutory Rules, on or about 1.8.2002, a purported office order was issued, the relevant part whereof reads as under:

“To maintain interdisciplinary coordination amongst various disciplines of CPWD, it has been decided that at zonal level all the 4 disciplines, viz, Civil, Electrical & Mechanical, Architecture & Horticulture of CPWD shall work under the administrative supervision and control of the zonal head, i.e. Chief Engineer. The officers of all disciplines in a zone will exercise their delegated powers and will report to the Chief Engineer who will further report to the ADG(Region). This system will function under the following guidelines :

i)Each zone shall be headed by a CE(C) or CE(E) subject to the conditions there will be at least one CE(E) heading a zone in each Region.”

5.On or about 11.3.2003, another office order bearing No. 34/03 was issued by the Central Public Works Department stating;

“Sub: Reorganisation of zones in New Delhi Region under ADG (S&P) for unified control.

In pursuance of Ministry of Urban Development & Poverty Alleviation Office Order No. 28017/2/2002-EW.1 dated 1.8.2002 and in order to maintain interdisciplinary coordination amongst various disciplines of CPWD, DG(W) CPWD is pleased to reorganise the circles & divisions amongst NDZ-1 & NDZ-2 and Electrical Zone, New Delhi Region on trial basis. The Electrical Zone (NDR) thus reconstituted shall be known as New Delhi Zone-5.

2.The officers of all disciplines in a zone will exercise their delegated financial, administrative, technical powers and will report to the Chief Engineer of the zone, who will further report to the ADG (S&P).

3.The Chief Engineer either Civil or Electrical as zonal heads shall exercise his/her delegated powers for both civil and electrical works.

4.To facilitate technical sanction of estimates above the delegated powers of SEs, zonal CEs will have one EE(P) from the other discipline in their SE(P) unit. In exceptional cases the CE of either discipline can approach the ADG of the region for arranging technical sanction of estimates of other disciplines.”

6.Validity and/or justification of the said orders came to be questioned before the Central Administrative Tribunal, Delhi Bench at Delhi. The Tribunal upon considering the matter at some length, opined that the purported reorganization of the cadre strength by the appellant herein in terms of the said office orders dated 1.8.2002 and 11.3.2003 were wholly unsustainable. The original application was, therefore allowed. A Division Bench of the Delhi High Court affirmed the said view of the Tribunal by reason of the impugned judgment.

7.Mr. R. Mohan, learned Additional Solicitor General appearing on behalf

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2007 Supreme(SC) 1414

important pointExecutive order must be passed in conformity with the Rules.

Cases Referred (2)

important point
Executive order must be passed in conformity with the Rules.