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2008 Supreme(SC) 673
2008(3) Supreme 146
SUPREME COURT OF INDIA
A.K. Mathur & Lokeshwar Singh Panta, JJ.
K.K. Tiwari & Ors. — Petitioners
versus
Union of India & Ors. — Respondents
Appeal (civil) 571 of 2002
Decided on : 21.04.2008
IMPORTANT POINT
If service rules are construed in right perspective their provisions are read in a harmonious manner then the desired result can be achieved.
Headnote:Constitution of India, 1950 – Article 309 – Indian Defence Service of Engineers (Recruitment and Conditions of Service) Rules, 1991 – Promotion to post of Executive Engineers – Entitlement to – Issuance of circular by respondent 2 Engineer-in-Chief, Army Head Quarters that total demand for year 1997-98 to cadre of EEs was 58 posts, which were directed to be filled in by promotion from amongst AEs only-Said circular was challenged by private respondents – Tribunal partly allowed O.A. and directed respondent Nos. 1 to 3 to fill up vacancies by promotion in ratio of 2/3rd from AEEs and 1/3rd from AEs in accordance with provisions of relevant rules – Writ petitions thereagainst – Dismissed by High Court-Appeal thereagainst by AEs-appellants – Plea of appellants that High Court erred in reading Rule 7 of Rules separately from Schedule III appended to Rules while construing words “post to be filled” in Column 3 of Schedule III to mean available vacancies at a given point of time and thus, instead of applying quota to “duty posts” or cadre, had wrongly applied it to vacancies – Held language of Rule 7 read with Schedule III governing service conditions has to be read harmoniously with meaningful construction – It is not possible or advisable to interpret ratio of 2/3rd and 1/3rd as prescribed in Schedule IV of Rule 7 in the manner that all 58 posts of EEs for year 1997-98 should be filled in by promotion from cadre of AEs only – If claim of appellants that all 58 posts of EEs for year 1997-98 are to be filled in by promotion from amongst AEs cadre only was accepted, then quota rule as prescribed by Rule 7 read with Schedule IV would break down with result that ratio of 2/3rd and 1/3rd prescribed in rules for AEEs and AEs had to be ignored and resultantly a situation may arise when one cadre would get excess quota as compared to other feeder cadre – When Rules specified that posts of EEs shall be filled in from two channels i.e. AEEs and AEs in proportion of 662/3 and 331/3 respectively said intention of Rules had to be strictly followed – No manifest error or perversity found in judgment of High Court warranting interference in appeal – Appeal dismissed. (Paras 25 to 27)
Facts of the Case :
A circular was issued by respondent .2 Engineer-in-Chief, Army Head Quarters herein in the instant case that total demand for year 1997-98 to cadre of EEs was 58 posts, which were to be filled in by promotion from amongst AEs only-Said circular was challenged by private respondents. Tribunal partly allowed O.A. and directed respondent Nos. 1 to 3 to fill up vacancies by promotion in ratio of 2/3rd from AEEs and 1/3rd from AEs in accordance with provisions of relevant rules. Writ petitions thereagainst were dismissed by High Court.
2. Present Appeal has been filed by AEs-appellants against said order of High Court.
Findings of the Court :
Language of Rule 7 read with Schedule III governing service conditions has to be read harmoniously with meaningful construction..It is not possible or advisable to interpret ratio of 2/3rd and 1/3rd as prescribed in Schedule IV of Rule 7 in the manner that all 58 posts of EEs for year 1997-98 should be filled in by promotion from cadre of AEs only. If claim of appellants that all 58 posts of EEs for year 1997-98 are to be filled in by promotion from amongst AEs cadre only was accepted, then quota rule as prescribed by Rule 7 read with Schedule IV would break down with result that ratio of 2/3rd and 1/3rd prescribed in rules for AEEs and AEs had to be ignored and resultantly a situation may arise when one cadre would get excess quota as compared to other feeder cadre. When Rules specified that posts of EEs shall be filled in from two channels i.e. AEEs and AEs in proportion of 662/3 and 331/3 respectively said intention of Rules had to be strictly followed. No manifest error or perversity was found in judgment of High Court warranting interference in appeal. Appeal was dismissed.
Result : Appeal dismissed.
JUDGMENT
Lokeshwar Singh Panta, J. —
1. This appeal by special leave is directed against the judgment and order dated 9th August, 2001 passed by the Division Bench of the High Court of Allahabad at Allahabad in Civil Miscellaneous Writ Petition No. 10242/2000 and Civil Miscellaneous Writ Petition No. 18114/2000. By the common judgment under challenge, the High Court dismissed the writ petitions whereby the order dated 8th February, 2000 passed by the Central Administrative Tribunal (hereinafter referred to as ‘the Tribunal’), Allahabad Bench, Allahabad, in O.A. No. 465/1999 was affirmed, whereunder the Tribunal directed the Union of India through the Secretary, Ministry of Defence respondent No.1, Engineer-in-Chief, Army Head Quarters respondent No. 2 and Union Public Service Commission respondent No. 3 herein to fill in the posts of Executive Engineer in proportion of 2/3rd from the Assistant Executive Engineers and 1/3rd from Assistant Engineers in accordance with the relevant rules.
2. Facts relevant and necessary leading to the filing of this appeal may be stated.
3. There are two feeder channels for promotion to the post of Executive Engineers (EEs): (i) from direct recruit known as Assistant Executive Engineers (AEEs) and (ii) from the grade of Assistant Engineers (AEs) (promotees).
4. The rules governing the service of the cadres framed under Article 309 of the Constitution of India are called ‘the Indian Defence Service of Engineers (Recruitment and Conditions of Service) Rules, 1991 (hereinafter referred to as ‘the Rules’). The appellants in the present case are the AEs, whereas private respondent Nos. 4 to 10 are AEEs. The AEEs are appointed by direct recruitment on the basis of selection made by Union Public Service Commission (for short ‘the UPSC’).
5. A Circular dated 29.07.1997 was issued by respondent No.2 in which it was stated that as on 1.4.1997 out of the then sanctioned strength of 445 posts of EEs, 354 posts (as against 297 posts) were occupied by those employees who have been promoted from the cadre of AEEs, while 76 posts (as against 148 posts) by those who belong to the cadre of AEs. It was also stated in the said Circular that the total demand for the year 1997-98 to the cadre of EEs was 58 posts, which were directed to be filled in by promotion from amongst AEs only.
6. The private respondents herein challenged the order dated 29.07.1997 of the Engineer-in-Chief respondent No. 2 before the CAT, Principal Bench, Allahabad. The Tribunal by its order dated 08.02.2000 partly allowed the O.A. and directed respondent Nos. 1 to 3 to fill up the vacancies by promotion in the ratio of 2/3rd from AEEs and 1/3rd from AEs in accordance with the provisions of the relevant rules.
7. Feeling aggrieved by and dissatisfied with the order of the Tribunal, two writ petitions, one by the appellants and another by the Engineer-in-Chief, were preferred before the High Court of Allahabad.
8. Having heard the learned counsel for the parties and having perused the entire record, the Division Bench of the High Court has found no substance in the writ petitions and accordingly dismissed the same inter alia holding as under :-
“The order of the Engineer-in-Chief dated 29.7.1997 can at best be treated to be an executive instruction. If the rules are silent on any point the Government can fill up the gaps and supplement the rules and issue instructions consistent with the rules already framed. But they cannot run contrary to statutory provisions or whittle down their effect. The office memorandum dated 29.7.1997 clearly runs contrary to the provisions of the rules and as such, it is illegal. The order passed by the CAT directing respondent nos. 1 to 3 to fill up the vacancies in proportion of 2/3rd of Assistant Executive Engineers and 1/3rd from Assistant Engineers is, therefore, perfect, legal and calls for no interference.
In view of the discussion made above, both the writ petitions lack merit and are hereby dismissed.”
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