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CASE NO.:

Appeal (civil) 571 of 2002

PETITIONER:

K. K. Tiwari & Ors

RESPONDENT:

Union of India & Ors

DATE OF JUDGMENT: 21/04/2008

BENCH:

A. K. Mathur & Lokeshwar Singh Panta

JUDGMENT:

J U D G M E N T

REPORTABLE

CIVIL APPEAL NO. 571 OF 2002

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 \026

respondent No.1, Engineer-in-Chief, Army Head Quarters \026

respondent No. 2 and Union Public Service Commission \026

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

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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 \026 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 t