The executive government has the power to create new cadres, define posts, and prescribe qualifications and experience, and the employer has the exclusive domain in matters of creation and abolition of posts, formation and restructuring of cadres, and prescribing conditions of service.

S. RAVINDRA BHAT, J.

1. The petitioners in these proceedings under Article 226 of the Constitution of India challenge two set of rules- i.e. the Military Engineer Services (Army Personnel), Regulations, 1989 hereafter ("the 1989 Regulations") framed under the Army Act, 1950 and notification bearing no. SRO. 4E dated 09.07.1991 ("the 1991 Rules") framed under proviso to Article 309 of the Constitution of India as well as the notification dated 29.06.2004 issued by Ministry of Defense (MoD)-which amended the 1991 Rules. The petitioner association complains that these impugned regulations and rules violate the fundamental rights-embodied in Articles 14 and 21, of its members, who are members of the Military Engineer Services ("the MES")

2. MES was originally set up with effect from 26.09.1923 during the British rule; it comprised of the Corps of Sappers and Miners (now called Corps of Engineers and Military of Works Services) headed by the Director of Military Works. The service (MES) was reorganized on 04.12.1923. By a notification of 24.06.1948, which was made effective from 15.08.1947, a revision of the established cadre of MES was ordered. This was to ensure that various military posts would be converted into civilian posts. Later, a notification was issued on 17.09.1949 by the MoD notifying various rules, regulations, orders and resolutions, covering MES called the Military Engineer Services, Class I (Recruitment, Promotions and Seniority) Rules. The rules were not framed under Article 309 and were apparently executive rules in character (known hereafter as "the 1949 rules”). These provided that persons for all the services other than architect service and the barrack and store services were to be recruited through competitive exams held as prescribed. The 1949 rules also provided for promotion criteria for certain posts. The posts created under the Notification were in two parts; the first being superior posts i.e. Executive Engineer (EE), Surveyor of Work (Surveyor) and Technical Examiner (TE) and other administrative posts, i.e. Chief Technical Examiner (CTE), Chief Surveyor of Work (CSW), Superintending Engineer (SE), Superintending Surveyor of Works (SSW) and Superintending Technical Examiner (STE). The 1949 rules did not prescribe any criteria relating to transfer of Army personnel or for posting of Army personnel within MES.

3. The 1949 Rules were assimilated into statutory rules, in 1959 known as the Military Engineer Service Class I Rules (under proviso to Article 309 known as "the 1959 Rules"). The petitioners rely on provisions of the 1959 rules to say that they provided in a fairly exhaustive manner, the kind of channels from where recruitment was possible and also spelt out age concessions for different categories of employees and public servants. It is urged that from this it becomes clear that the posts held under the Engineer- in-Chief Army Headquarters ("EICAHQ") were not deemed to be posts under the Military Engineer Services and also that the Engineer-in-Chief Army Headquarters was regarded as separate and independent from MES. It is also highlighted that since the source of entry or recruitment was clearly indicated in the 1959 Rules, and it did not include personnel under the EICAHQ, the question of mobility of such army officers into the MES, their assimilation and further career growth in that department could not arise. The petitioners emphasize that these 1959 rules are in force. They also argue that MES personnel and employees are not subject to the Army Act, nor are its benefits extended to them.

4. In these circumstances, urge the petitioners, the 1989 regulations were framed and brought into force under Section 192 of the Army Act. It is submitted that these regulations did not in any manner seek to change the existing terms of recruitment, the channels or quotas prescribed for promotion, or the criteria thereof, for MES officials at various levels. What it did seek to achieve, for the firs