Madras High Court
R. Sundar Raju vs V. Ramakrishnan on 23 November, 2006
Author: Elipe Dharma Rao
Bench: Elipe Dharma Rao
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:23-11-2006 Coram: The Honourable Mr. Justice Elipe DHARMA RAO and The Honourable Ms. Justice K. SUGUNA W.P. Nos.22224, 22236, 22275, 22276, 24123 and 27105 of 2006 and M.P. Nos.1 to 3 of 2006 in the respective petitions W.P. No.22224 of 2006: R. Sundar Raju .... Petitioner :versus: 1. V. Ramakrishnan 2. The Government of Pondicherry rep. by its Chief Secretary Goubert Avenue Pondicherry 3. Ministry of Urban Development rep. by its Secretary Nirman Bhavan New Delhi 110 011 4. The Director General of Works Central Public Works Department Nirman Bhavan New Delhi 110 011 5. The Secretary to Government (Works) Local Administration and Public Works Department (Public Works Wing) Government of Pondicherry 6. The Registrar Central Administrative Tribunal Madras Bench High Court Chennai .... Respondents Petition under Art.226 of the Cosntitution of India, praying for a Writ of Certiorari, calling for the records of the 6th respondent in its order dated 4-7-2006 in O.A. No.57 of 2006 and quash the same. For Petitioner :: Ms. R. Vaigai (in W.P. Nos.22224 and 22236 of 06) For Petitioner :: Mr. V.T. Gopalan (in W.P. Nos.22275 Addl. Solicitor General and 22276 of 06) Mr. P. Wilson Asst. Solicitor General for Mr.T.Murugesan Senior Govt. Pleader For Petitioner Mr. V.T. Gopalan in W.P.No.27105/06 Addl. Solicitor General Mr. P.Wilson Asst. Solicitor General for Mr. K. Sridhar For Respondent :: Mrs. Nalini Chidambaram (R1 in W.P. No.22224 Senior Counsel for and 22236 of 2006) Mrs. Gladys Daniel - - - - - COMMON ORDER
Elipe DHARMA RAO, J.
In these writ petitions, the challenge is to the order dated 4-7-2006 passed by the Central Administrative Tribunal in O.A. No.807 of 2005 as well as the order dated 4-7-2006 passed in O.A. No.57 of 2006, allowing the applications filed by the first respondent herein.
2. A deputationist stakes his claim against a departmental engineer to cling on to the highest post of Chief Engineer in the Public Works Department of Government of Pondicherry. That is the crux of the issue in these writ petitions.
3. Facts, in brief, leading to the filing of these writ petitions are as follows:
When the post of Chief Engineer in the Public Works Department (PWD) of Government of Pondicherry fell vacant in the year 2004, the Government proceeded to fill up the vacancy by transfer of deputation. For that purpose, the Government addressed a letter dated 30-1-2004 to the Director General of Central Public Works Department (CPWD) to send a panel of eligible and willing officers. An office memorandum dated 10-2-2004 was issued by the CPWD inviting options from the eligible officers working in the CPWD.
One V. Ramakrishnan (hereinafter called the first respondent), who was working as Superintending Engineer with Central Public Works Department (CPWD), Pondicherry applied to the said post and was selected and appointed as Chief Engineer on short term deputation basis with effect from 1-7-2004. While so, one R. Sundar Raju, hereinafter referred to as the petitioner, working as Superintending Engineer in the PWD, Pondicherry filed an original application (O.A. No.581 of 2004 before the Central Administrative Tribunal (in short the Tribunal), challenged the practice of filling up the post of Chief Engineer by transfer on deputation, but unsuccessful as the said application was disposed of with out granting any relief to the petitioner.
The first respondent was, however, by order dated 14-2-2005, repatriated to his parent department and the petitioner was directed to hold the additional charge of the post of Chief Engineer.
The first respondent challenged his repatriation and also the appointment of the petitioner as Chief Engineer in O.A. No.150 of 2005. The said original application was allowed and the repatriation order was set aside. The order of the Tribunal was challenged before this Court in writ petitions filed by the Government as well as the petitioner, but the writ petitions were dismissed. Against which appeals were preferred before the Supreme Court.
In the mean time, the Government decided to relax the eligibility criteria for promotion to the post of the Chief Engineer and accordingly amended the recruitment rule in so far it related to the recruitment by way of promotion. The draft amended recruitment rules was sent to the Union Public Service Commission (UPSC) for approval.
The appeals, which were pending before the Supreme Court, were dismissed and consequently, the first respondent was reappointed in the post of Chief Engineer.
The first respondent challenged the amendment to Clause 12 of RR, 1996 before the Tribunal in O.A. No.807 of 2005.
While so, the Ministry of Urban Development, the cadre controlling authority of the first respondent, by order dated 20-1-2005 recalled the services of the first respondent from the PWD, Pondicherry and he was immediately relieved by the Government by the order of the even date and simultaneously, the petitioner was promoted and appointed as Chief Engineer, PWD, on ad hoc basis. These orders were challenged by the first respondent before the Tribunal in O.A. No.57 of 2006.
The Tribunal by its order dated 4-7-2006 allowed O.A. No.807 of 2005 quashed the amendment to the recruitment rules and also set aside the orders passed by the Ministry of Urban Development as well as the Government of Pondicherry and directed the authorities concerned to restore first respondent in service as Chief Engineer (Civil) in the PWD, Pondicherry.
It is against these orders of the Tribunal, the present writ petitions have been filed.
4. All the above writ petitions, which were heard together, are disposed of by this common order as they involve the common factual matrix and the issues arising therefrom. Mr. V.T. Gopalan, learned Additional Solicitor General addressed his arguments on behalf of the Government of Pondicherry as well as UPSC and Ms. R. Vaigai, learned counsel made her submissions on behalf of the petitioner. The challenge to the impugned orders of the Tribunal by the learned Additional Solicitor General and the learned counsel for the petitioner was almost on common grounds and, therefore, in this order, their arguments are dealt with together. Mrs. Nalini Chidambaram, learned senior counsel appearing for the first respondent submitted her arguments defending the impugned order passed by the Tribunal. Learned senior counsel appearing on either side cited a number of authorities in support of their respective contentions. We will advert to those authorities at appropriate places while dealing with the merits of the contentions.
5. Before proceeding further, we may hasten to point out that this is the second round of litigation between the parties. On the earlier occasion, when the first respondent was relieved from the post of Chief Engineer by order dated 14-2-2005 and the petitioner was appointed on ad hoc basis as Chief Engineer by order dated 27-4-2005, the matter went up to the Supreme Court and was given a finality, but in view of the subsequent developments, the first respondent was once again constrained to approach the court of law.
6. To appreciate the arguments advanced by the learned senior counsel for the parties, it is relevant to note the rules relating to the recruitment to the post of Chief Engineer, PWD.
7. The post of Chief Engineer in the Public Works Department, Pondicherry is classified as General Central Services Group 'A' Gazetted Non-Ministerial post. It is a selection post. The recruitment to the said post was initially governed by the Government of Pondicherry, Public Works Department, Group 'A' post of Chief Engineer Recruitment Rules, 1996 (in short RR 1996). As per RR, 1996, the method of recruitment to the said post was promotion failing which by transfer on deputation. The eligibility criteria for promotion was five years of regular service in the grade of Superintending Engineer in the scale of pay of Rs.3700-5000. In case of recruitment by transfer on deputation, the officers of the Central/State Government/Union Territories holding analogous posts on a regular basis or with three years' regular service in posts in the scale of pay of Rs.3700-5000 or equivalent were eligible for consideration. Thus under RR 1996, the grade of Superintending Engineer with five years of regular service in the scale of pay of Rs.3700-5000 was the feeder category to the post of Chief Engineer.
8. The departmental engineers association of PWD, Pondicherry made a memorandum to the Government stating that the eligibility criteria of five years of regular service in the post of Superintending Engineer to become eligible for promotion to the post of Chief Engineer is a stumbling block in their way of promotion to the top rank of Chief Engineer as they reach the grade of Superintending Engineer only at the fag end of their service and most of them are left with less than five years of service before retirement. Further, since the scales of pay for the Chief Engineer and the Superintending Engineer, which were Rs.4500-5700 and Rs.3700-5000 respectively, were revised as Rs.14300-18300 and Rs.12000-375-16500/14300-400 respectively, the Chief Engineer and the Superintending Engineers are in one and the same scale of pay viz. Rs.14300-400-18300. The departmental engineers, therefore, requested the Government to consider the Superintending Engineers who are in the scale of pay of Rs.14300-18300 with three years of regular service in the grade for promotion to the post of Chief Engineer.
9. The Government, after considering the grievance of the departmental engineers and also taking into consideration the fact that hitherto the post was occupied by a deputationist decided to amend suitably the eligibility criteria relating to the recruitment by promotion. The Government, therefore, decided to amend Clause 12 of RR, 1996 in so far as it related to promotion and the amendment process stated in the year 2000. The Government prescribed the following eligibility criteria for promotion to the post of Chief Egnineer:
Superintending Engineer (12000-16500) with five years regular service in the grade, failing which Superintending Engineer with ten years of combined regular service in the grade of Superintending Engineer and Executive Engineer out of which atleast one year regular service should be in the grade of Superintending Engineer.
The draft amended recruitment rules was sent to the Union Public Service Commission (UPSC) for approval. It appears that UPSC have raised some clarifications with regard to scales of pay of the Chief Engineer and the Superintending Engineer and that there were exchange of correspondence between the Government and the UPSC on this issue and the matter took considerable length of time.
10. While so, the post of Chief Engineer fell vacant in the year 2004. As stated earlier, for want of eligible departmental Superintending Engineers, the post could not be filled up immediately with a regular incumbent by promotion. Further, the amendment to the recruitment rules was pending consideration with UPSC. In such circumstances, on account of immediate administrative necessity, the Government proceeded to fill up the post by transfer on deputation basis for a short-term basis. It was in this background that the first respondent was appointed as the Chief Engineer by transfer on short-term deputation/temporary basis with effect from 1-7-2004. We may hasten to note here that in the matter of appointment to the post of Chief Engineer, the mandatory rule of consulting the UPSC under Clause 14 of RR, 1996 was given a go-by by the Government.
11. By proceedings dated 14-2-2005, the first respondent was relieved from the post of Chief Engineer, PWD and was repatriated to his parent department, viz. CPWD. On the very same day, the petitioner was given the additional charge of the post of Chief Engineer. It appears that in the meeting of the Departmental Promotion Committee (DPC) held on 8-4-2005, it was decided to promote the petitioner and appoint him as the Chief Engineer on ad hoc basis and this was communicated to the petitioner on 27-4-2005 and thereupon he took charge immediately.
12. The order dated 14-2-2005 repatriating the first respondent to his parent department as well as order dated 27-4-2005, promoting and appointing the petitioner as Chief Engineer on ad hoc basis were challenged by the first respondent before the Tribunal in O.A. No.150 of 2005. The Tribunal, by order dated 14-7-2005, allowed the application and directed the Government to restore the first respondent to the post of Chief Engineer, PWD.
13. The Tribunals order dated 14-7-2005 was challenged before this Court in the writ petitions filed (W.P. Nos.23053 and 24008 of 2005) filed by the petitioner and the Government respectively. The Division Bench, by order dated 11-08-2005, dismissed the writ petitions holding that as the first respondent was appointment 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 and that so long the draft rules were not approved by the competent authority viz. UPSC, the petitioner was ineligible to be appointed as Chief Engineer, PWD, Pondicherry.
14. Challenging the order passed by the Division Bench, appeals were filed before the Supreme Court by the petitioner as well as the Government. It appears that when the matter was pending before the Supreme Court, the draft recruitment rules got the approval of the UPSC and the Government have also issued a notification dated 28-9-2005 publishing the new amended recruitment rules. Before the Supreme Court it was submitted by the Government that amendment to recruitment rules got the approval of the UPSC and a notification was also issued, UPSC have been addressed to regularise the service of the petitioner as Chief Engineer from the date of his ad hoc promotion and further the Departmental Promotion Committee constituted in terms of the amended recruitment rules would hold its meeting shortly to select a regular incumbent, the relief sought for by the first respondent in his original application had become infructuous. Rejecting the submission so made, the Supreme Court dismissed the appeals by order dated 7-10-2005. The Supreme Court, however, observed that all the authorities concerned must see to it that the selection process in accordance with law may be completed as expeditiously as possible. Consequently, in compliance of the order passed by the Supreme Court, the Government relieved the petitioner and restored the first respondent in the post of Chief Engineer and the petitioner was posted as Superintending Engineer, PWD.
15. The Government addressed a letter dated 26-10-2005 requesting the Director General of Works, CPWD, New Delhi to immediately recall the services of the first respondent. In the said letter "administrative reasons" and "public interest" were shown as the reasons for recalling the first respondent. In their reply dated 3-11-2005, CPWD informed that because of the fact that the first respondent was allowed to rejoin the post of Chief Engineer by the Government of Pondicherry in pursuant of the order passed by the Supreme Court, any further decision regarding the repatriation of the first respondent was to be taken by the Government and that CPWD on its own could not issue any order to recall the first respondent.
16. The first respondent, in the mean time, has filed an application (O.A. No.807 of 2005) on 28-9-2005 before the Tribunal challenging the amendment to Clause 12 of the recruitment rules.
17. While so, the Ministry of Urban Development, which is the Cadre Controlling Authority for PWD of Pondicherry, passed an order dated 20-1-2006 recalling the services of the first respondent and posting him as Superintending Engineer, Appropriate Authority, Pondicherry. 'public interest' was cited as the reason for repatriation of the first respondent. This order was immediately followed by the order dated 20-1-2006 passed by the Government of Pondicherry relieving the first respondent from his duties from the Government of Pondicherry and further directing him to report as Superintending Engineer (Appropriate Authority) Pondicherry. On 20-1-2006 itself, the Government passed another order directing the petitioner to hold full additional charge of the post of Chief Engineer, PWD, Pondicherry.
18. The first respondent filed an application (O.A. No.57 of 2006) before the Tribunal to quash the order dated 20-1-2006 passed by the Director General of Works, CPWD, New Delhi and the consequential order dated 20-1-2006 issued by the Government of Pondicherry and to restore him as the Chief Engineer (Civil) in PWD, Pondicherry. By way of interim relief, the first respondent was permitted bythe Tribunal to officiate as the Chief Engineer.
19. The interim relief granted by the Tribunal was challenged by the Government of Pondicherry before this Court in W.P. No.2778 of 2006 on the ground that by granting the interim relief, the Tribunal has virtually granted the main relief sought for by the first respondent in his original application, which was unsustainable in law. The Division Bench disposed of the said writ petition by order dated 29-3-2006 holding that it was open to the first respondent to join the post as per the order dated 20-1-2006, which was challenged in O.A. No.57 of 2006 before the Tribunal, without prejudice to his contentions in the said application. The Division Bench, however, stayed the interim order passed by the Tribunal restraining the petitioner from discharging the duties of the Chief Engineer and permitting the first respondent to continue to officiate as the Chief Engineer. The Division Bench further observed that the original application should be disposed of as expeditiously as possible. The Special Leave Petition filed at the instance of the first respondent against the above said Division Bench order was dismissed by the Supreme Court on 1-5-2006 with an observation that the matter shall be taken up for hearing by the Tribunal immediately.
20. In compliance of the observations made by the Supreme Court, the Tribunal took up both the applications, viz. O.A. No.57 of 2006 as well as the connected O.A. No.807 of 2005.
21. In O.A. No.807 of 2005, the dilution of the eligibility criteria was challenged on the grounds of arbitrariness and unreasonableness and that the eligibility criteria was relaxed to suit the convenience of the Government and to accommodate the petitioner in the post of Chief Engineer. On the other hand, it was contended by the Government that the Government was well within the powers to amend the recruitment rules, which has got the approval of the UPSC and that the first respondent, being a deputationist, has no locus standi to challenge the amendment to the recruitment rules.
22. The Tribunal held that the eligibility criteria was diluted to one year to suit the convenience of the Government, that the statutory power was wrongfully exercised to set at naught the earlier order of the Tribunal, which was confirmed by the Division Bench of the High Court and by the Supreme Court, that equation of five years of regular service as Superintending Engineer with one year of regular service in the grade of Superintending Engineer was unreasonable, arbitrary and illegal, and that service rules cannot be framed to suit the convenience or wishes of a particular section or group of employees or an individual. The Tribunal, therefore, held that Clause 12 of the amended recruitment rules in so far as it prescribed Superintending Engineer with ten years of combined regular service in the grade of Superintending Engineer and Executive Engineer, out of which at least one year regular service should be in the grade of Superintending Engineer for becoming eligible for promotion to the post of Chief Engineer was arbitrary, illegal and violative of Arts.14 and 16 of the Constitution of India and accordingly quashed the rule to the said extent.
23. In the other application, viz. O.A. No.57 of 2006 where the subject-matter of challenge was to the order dated 20-1-2006 repatriating the first respondent to his parent department and promoting and appointing the petitioner as Chief Engineer, the Tribunal held that since the appointment of the first respondent, though on deputation, was made for specific period, i.e. till a regular appointment was made and therefore, he could not have been repatriated without making a regular appointment to the post of Chief Engineer and till such time a regular appointment is made he has a right to continue in the post and the impugned order dated 20-1-2006 was not a routine administrative order made in public interest, but an order made in colourable exercise of power and arbitrarily. The Tribunal, therefore, set aside the order dated 20-1-2006 and directed the authorities concerned to restore the first respondent in service as Chief Engineer (Civil) in the PWD, Pondicherry.
24. We will first deal with the impugned order passed by the Tribunal in O.A. No.807 of 2005 quashing Clause 12 of the amended recruitment rules.
25. Learned Additional Solicitor General for the Pondicherry Administration submitted that in exercise of the powers conferred under Art.309 of the Constitution, the Government was well within their powers and competency to amend Clause 12 of RR, 1996. Such amendment of the recruitment rules became necessary in the interest of administration of the department and in public interest. It was the policy decision of the Government to amend the recruitment rules and, therefore, the same could not be struck down on flimsy and slender grounds. In the absence of any constitutional bar, determination of the mode of recruitment to a service or post is a matter of policy of the Government and such policy decision cannot be struck down merely because the court considers them unreasonable. It was also submitted that the amendment was done in exercise of the rule-making powers under Art.309 of the Constitution of India and the amended recruitment rules, being a subordinate legislation and statutory, cannot be impeached by attributing extraneous considerations and motives. To buttress these contentions, learned Additional Solicitor General explained in an elaborate way the reasons, which necessitated the Government to amend the recruitment rules.
26. The second submission of the learned Additional Solicitor General was that the first respondent, being a deputationist, has no locus standi to challenge the amendment made to recruitment rules. According to learned Additional Solicitor General that the very initial appointment of the first respondent as Chief Engineer was void as UPSC was not consulted in the matter and in any event his appointment was purely temporary and for a short term till such time a regular incumbent is appointed as per the amended recruitment rules. Further, it is open to the parent department of the first respondent to recall his services at any time without assigning any reasons and that he has no legal claim to continue in the borrowing department.
27. Ms. R. Vaigai, learned counsel appearing for the petitioner adopted the above submissions of the learned Additional Solicitor General, but further added that the Government is having every power to determine the experience and qualification necessary for any post in their service and the same can be amended at any time to suit the conditions prevailing at the relevant time and in the interest of the administration and public interest.
28. Per contra, Mrs. Nalini Chidambaram, learned senior counsel appearing for the first respondent submitted that the amendment has been brought out to oust the first respondent from the post of Chief Engineer and to make eligible the petitioner for being posted as Chief Engineer. According to her, the eligibility criteria were diluted in an arbitrary and unreasonable manner and by such dilution, the Government have downgraded the top most post of Chief Engineer. Clause 12 of the amended recruitment rules is therefore arbitrary, unreasonable, unjust and violative of Arts.14 and 16 of the Constitution. Learned senior counsel submitted that the Tribunal, after considering the entire fact-situation has passed the well-considered order with which no interference is called for in these writ petitions.
29. To appreciate the above rival contentions, it is necessary to find out what was the necessity for the Government to amend the recruitment rules. According to the learned Additional Solicitor General, the necessity arose in view of the request made by the departmental Superintending Engineers in the matter of their promotion to the post of Chief Engineer. Learned Additional Solicitor General invited our attention to the memorandum submitted by the departmental engineers, wherein it is stated as follows:
"According to the existing Recruitment Rules, the post of Chief Engineer has to be filled up by promotion of the Superintending Engineer with 5 years regular service in the grade failing which by transfer on deputation from analogous post from the State/Central Government/Union Territories or with some years of regular service in lower posts. This condition of 5 years of qualifying service to become eligible for promotion is a stumbling block in the way of promotion of the departmental engineers to the top most post of the Chief Engineer as the incumbents reach the post of Superintending Engineer at the fag end of their service and mostly retire before attaining the qualifying 5 years of service which will entitle them for promotion to the top most post."
Learned Additional Solicitor also submitted that a departmental engineer in PWD, who has put in sufficient length of service as Junior Engineer, Assistant Engineer and Executive Engineer, reaches the grade of Superintending Engineer only at the fag end of his service career and most of the Superintending Engineers do not have even three years' service before their retirement. Further, their promotion as Superintending Engineer was on ad hoc basis and not a regular promotion. Therefore, there is hardly any scope for them to fulfil the eligibility criteria of five years of regular service in the grade of Superintending Engineer. Consequently, for want of eligible departmental Superintending Engineers, the Government was left with no other option but to resort to the process of recruitment by transfer on deputation. The Government on considering the request made by the departmental engineers had decided to relax the eligibility criteria for promotion to the post of Chief Engineer.
30. We have gone through Clause 12 of RR, 1996. While considering the eligibility criteria prescribed therein vis-`-vis the submissions made by the learned Additional Solicitor General, we are convinced that under Clause 12 of RR, 1996, the chances of the departmental Superintending Engineers being considered for promotion to the post of Chief Engineer was almost impossible. Further, hitherto no departmental Superintending Engineer had been promoted to the post of Chief Engineer for want of eligibility criteria. As the post could not be left vacant or manned by in-charge officer for a longer period, the Government was constrained to resort to recruitment by transfer on deputation. When the departmental engineers, who have put in sufficient length of service in PWD, are continuously made to work under a deputationist Chief Engineer, there is likelihood of frustration and loss of morale amongst them, leading to administrative inefficiency. The object of the service rules and regulations being to ensure efficiency and integrity, in the interest of administration and in public interest, there would be nothing illegal and unconstitutional if the Government had decided to amend the eligibility criteria to alleviate the grievance of the departmental engineers. After all, it is the aspiration and dream of every Government servant to reach the top position before he retires from service and in this scenario if the Government took a policy decision to relax eligibility criteria in favour of the departmental engineers, no fault can be found in the action of the Government. It is also pertinent to note here that the departmental engineers association has filed a petition to implead themselves as party to these writ petitions, wherein they have supported the decision of the Government in relaxing the eligibility criteria.
31. It is settled principle that validity of the service rules and regulations framed by the Government or the competent authority in exercise of the powers under Art.309 of the Constitution can be tested before the courts of law only on two grounds, viz. lack of jurisdiction and unconstitutionality. It is not the case of the first respondent that the Government has no power or competency to amend the recruitment rules relating to the post of Chief Engineer. The contention was that the amendment was arbitrary and tainted with mala fides and favouritism to oust the first respondent from the post of Chief Engineer and to accommodate the petitioner in the said post. According Mrs. Nalini Chidambaram, learned senior counsel, the eligibility criterion was diluted to such an extent with a view to make the petitioner eligible for the post of Chief Engineer. If the eligibility criteria is prescribed as five years regular service in Superintending Engineer, the chances of the first respondent being considered for appointment as Chief Engineer on transfer by deputation are more prospect. To avoid this, and to accommodate the petitioner, the Government, to suit their convenience, has diluted the eligibility norm to one-year regular service as Superintending Engineer.
32. We are unable to countenance the contentions of Mrs. Nalini Chidambaram. As already stated, when under RR, 1996 there was no chance for the departmental Superintending Engineers to be promoted as Chief Engineer, it is always open to the Government, in the interest of administration and the departmental engineers, to amend suitably the eligibility criterion to enable the departmental engineers to reach the position of Chief Engineer. As stated already a departmental engineer in PWD reaches the grade of Superintending Engineer only at the fag end of his service career and most of them are left with less than three years of service. In such service scenario, when Clause 12 of RR, 1996 prescribes five years of regular service in the grade of Superintending Engineer as the eligibility criterion for promotion to the post of Chief Engineer, it is a mirage for the departmental engineers to reach the top most position of Chief Engineer in PWD. Secondly, as rightly contended by the learned Additional Solicitor General, since the amendment was outcome of policy decision of the Government, the same cannot be interfered with unless it is demonstrated to the satisfaction of the court that such decision was actuated by malice and mala fides. There are several factors that the administrators would have taken into consideration for arriving at such a policy decision. In matters such as this, which reflects the matters of policy, judicial wisdom is judicial restraint. It is trite in the service jurisprudence and administrative law that policy decisions of the Government in the matter of framing service rules and regulations will have little judicial interference. A policy decision, if taken by a competent authority in accordance with law, cannot per se be regarded as mala fide. We have already observed that the Government was wholly justified in bringing out amendment to Clause 12 of RR, 1996.
33. We have given our careful consideration to the Clause 12 of the amended rules. According to the amended rule, while filling up the post of Chief Engineer by promotion, if no departmental Superintending Engineer with five years of regular service in the grade is available, the Government can consider the case of a Superintending Engineer with ten years of combined regular service as Superintending Engineer and Executive Engineer, out of which at least one year regular service should be in the grade of Superintending Engineer. The reason for diluting the eligibility norm is so obvious and it is nothing but to appoint an eligible departmental engineer as the Chief Engineer and in fact this was the long time request made to the Government by the departmental engineers. Further more, it is for the appointing authority, which is the best judge of the situation before them, either to prescribe new service condition or to amend or alter the existing service condition to suit the administrative exigencies and in public interest. We, therefore, do not see any element of arbitrariness or unreasonable in diluting the eligibility criteria. On the other hand, as contended by the learned Additional Solicitor General and rightly so in our opinion, that the rules were amended in the interest of administration of the Department and in public interest. When the amendment was brought in to meet the expectations of the departmental engineers to promote and to appoint one among them as Chief Engineer and the same was in the interest of administration of the Department and in public interest, the dilution of the rule and the resultant amendment cannot be dubbed as arbitrary and unreasonable merely because the individual interest of the first respondent is likely to be affected. We are, therefore, clearly of the opinion that in the facts and circumstances of the case, the Government had not acted arbitrarily or unreasonably, but had proceeded to relax the eligibility criteria under Clause 12 of RR, 1996 to obviate the genuine hardship caused to the departmental Superintending Engineers in the matter of their promotion to the post of Chief Engineer.
34. In B.S. YADAV v. STATE OF HARYANA (AIR 1981 SC 561), the Supreme Court held that rules made under the proviso to Article 309 of the Constitution being legislative in character cannot be struck down merely because the Court thinks that they are unreasonable.
35. In J.C. YADAV v. STATE OF HARYANA (1990) 2 SCC 189, it was held as under:
The relaxation of the Rules may be to the extent the State Government may consider necessary for dealing with a particular situation in a just and equitable manner. The scope of Rule is wide enough to confer power on the State Government to relax the requirement of Rules in respect of an individual or class of individuals to the extent it may consider necessary for dealing with the case in a just and equitable manner. The power of relaxation is generally contained in the Rules with a view to mitigate undue hardship or to meet a particular situation. Many a time strict application of service rules create a situation where a particular individual or a set of individuals may suffer undue hardship and further there may be a situation where requisite qualified persons may not be available for appointment to the service. In such a situation the Government has power to relax Requirement of Rules. The State Government may in exercise of its powers issue a general order relaxing any particular rule with a view to avail the services of requisite officers. The relaxation even if granted in a general manner would ensure to the benefit of individual officers.
36. In Captain B.D. GUPTA v. STATE OF U.P. AND ANOTHER 1991 Supp (1) SCC 1, the Supreme Court held that rules made under Art.309 of the Constitution are a piece of legislation and it is well settled that no legislation can be challenged on the ground of mala fides.
37. In V.K. SOOD v. SECRETARY, CIVIL AVIATION AND OTHERS (1993 Supp. [3] SCC 9), the Supreme Court observed as follows:
Thus it would be clear that, in the exercise of the rule making power, the President or authorized person is entitled to prescribe method of recruitment, qualifications both educational as well as technical for appointment or conditions of service to an office or a post under the State. The rules thus having been made in exercise of the power under proviso to Article 309 of the Constitution, being statutory, cannot be impeached on the ground that the authorities have prescribed tailor made qualifications to suit the stated individuals whose names have been mentioned in the appeal. Suffice to state that it is settled law that no motives can be attributed to the Legislature in making the law. The rules prescribed qualifications for eligibility and suitability of the appellant would be tested by the Union Public Service Commission.
38. In ASHOK KUMAR UPPAL v. STATE OF J&K (1998) 4 SCC 179, the Supreme Court held as follows:
Power to relax the Recruitment Rules or any other Rule made by the State Government under Article 309 of the Constitution of which the corresponding provision is contained in Section 124 of the Constitution of Jammu and Kashmir, is conferred upon the Government to meet any emergent situation where injustice might have been caused or is likely to be caused to any individual employee or class of employees or where the working of the Rule might have become impossible. Under service jurisprudence as also the Administrative Law, such a power necessarily to be conceded to the employer particularly the State Government or the Central Government who have to deal with hundreds of employees working under them in different departments including the Central or the State Secretariat.
39. In ASHUTOSH GUPTA v. STATE OF RAJASTHAN (2002) 4 SCC 34, the Supreme Court in paragraph 5 observed as follows:
There is always a presumption in favour of the constitutionality of enactment and this presumption stems from the wide power of classification which the legislature must, of necessity possess in making laws operating differently as regards different groups of persons in order to give effect to policies. It must be presumed that the legislature understands and correctly appreciates the need of its own people, that its law are directed to problems made manifest by experience.
40. In P.U. JOSHI AND OTHERS v. ACCOUNTANT GENERAL, AHEMEDABAD AND OTHERS (2003) 2 SCC 632, the Supreme Court held as follows:
Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition,prescription of qualifications and other conditions of service including avenues of promotion and criteria to be fulfilled for such promotions pertain to the field of policy is within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the statutory tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/substraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. There is no right in any employee of the State to claim that rules governing conditions of his service for all purposes and except for ensuring or safeguarding rights of benefits already earned, acquired or accrued at a particular point of time, a government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service.
41. It was argued that the first respondent, being a deputationist, has no legal right to challenge the amendment made to the recruitment rules. This argument was rejected by the Tribunal on the reasoning that when transfer by deputation is one mode of recruitment under the rules and when the appointment order issued to the first respondent clearly spelt out that his appointment would continue till such time a regular candidate is appointed as per the recruitment rules and when according to the first respondent the amendment to the recruitment rules was arbitrary and illegal, he has locus to challenge the same.
42. We have already held that the Government have got power either to frame new recruitment rules or to amend or alter the existing recruitment rules to suit the administrative contingencies and in the interest of the Department as well as in public interest. Such policy decision of the Government cannot be challenged at the instance of the first respondent, who is a deputationist. It is also pertinent to note the argument of the learned Additional Solicitor General that the very appointment of the first respondent as Chief Engineer, PWD was void since it was in violation of the recruitment rules as there was no consultation by the Government with UPSC in his appointment. Further, when the matter was pending before the Supreme Court, Clause 12 of the draft recruitment rules was placed before the Supreme Court and the first respondent was also alive to the provisions of the amended Clause 12 of the recruitment rules, he could have raised the pleas of mala fide and arbitrariness before the Supreme Court itself, but he failed to do so. In fact, the amended Clause 12 of RR, 2005 has been quoted in the judgment of the Supreme Court. The Supreme Court ultimately observed that selection process in accordance with law may be completed as expeditiously as possible. It is the case of the Government that it is in compliance of the implicit direction given by the Supreme Court that the selection process has been expedited and reached the final stage of posting the regular candidate, which is under process. The appointment could have been over, but for the original applications filed by the first respondent.
43. In KUNAL NANDA v. UNION OF INDIA (2000) 5 SCC 362, the Supreme Court held as follows:
A deputationist cannot assert and succeed in his claim for permanent absorption in the department where he works on deputation, unless his claim is based upon a statutory rule, regulation or order having the force of law. A deputationist can always and at any time be repatriated to his parent department, at the instance of either borrowing department or parent department. There is no vested right in such a person to continue for long on deputation or get absorbed in borrowing department. (emphasis supplied)
44. In UNION OF INDIA v. S.N. PANIKAR(2001) 10 SCC 520, the Supreme Court while considering the claim of a deputationist for absorption on permanent basis held that a deputationist cannot claim either a right to the post in question nor can he claim absorption on permanent basis to the post in question.
45. Since the pleas of mala fides and malice in law have been raised on behalf of the first respondent, we are constrained to note certain submissions made by the learned Additional Solicitor General. It was submitted that there were serious complaints of corruption against the first respondent in the matter of award of Government contracts and accumulation of wealth disproportionate to the known sources of his income. There is also a vigilance enquiry pending against him. That part the first respondent was also lacking in efficiency in managing the administration the department. The allegations of corruption as well as the efficiency aspect of the first respondent were widely publicised in the local dailies. When the first respondent was given reposting as Chief Engineer pursuant to the orders of the Supreme Court, the staff of the PWD expressed their resentment by going on mass casual leave, which resulted in paralysing the administration. Our attention was invited to the paper publications.
46. We express nothing on the substance of such allegations and the newspaper reports, but the fact remains that there were reports made in public through local dailies touching the integrity and efficiency of the first respondent. These allegations were also brought to the notice of the parent department of the first respondent. Under such circumstances, it is for the Government, which the best judge of the situation before them, to take a decision in the matter and no malice or motive could be attributed to the action of the Government in making a request to the CPWD to recall the services of the first respondent. In this situation, when the services of the first respondent were recalled by his parent department, the Government, in the administrative interest as well as in public interest, immediately relieved the first respondent. Merely because the repatriation order and the relieving order were passed on the very same date, the order was communicated to the first respondent at late hours in the night and that on the very day itself the petitioner was put in charge of the post of Chief Engineer, it cannot be said that the whole exercise was tainted with mala fide, malice and favouritism. Anxiety to have something done quickly is not necessarily mala fide. It is illogical to dub the swift action of the Government in relieving the first respondent and appointing the petitioner in charge of the post of Chief Engineer as post-haste decision and perverse. The Tribunal, in our opinion, failed to consider this situation in proper perspective. Further, recruitment rules framed by the competent authority, being in the nature of subordinate legislation under Art.309 of the Constitution of India, cannot be challenged on the grounds of mala fide and malice.
47. In the above said facts and circumstances, we are of the considered view that the arguments of the learned senior counsel appearing for the first respondent that the amendment to Clause 12 of RR, 1996 was brought in by the Government with mala fide and malice to oust the first respondent from the post of Chief Engineer and to promote and post the petitioner as Chief Engineer, that the amendment was arbitrary, unreasonable and violative of Arts.14 and 16 of the Constitution and that the amendment to the recruitment rules was done in a post-haste manner have no merits at all and are liable to be rejected. We, accordingly, reject the contentions.
48. It is obvious from the fact-situation of the case and the materials placed on record that the Government took the decision as early as 2000 to relax the eligibility criteria for promotion to the post of Chief Engineer in the administrative interest of the Department. On a careful reading of the impugned order passed by the Tribunal, we find that the Tribunal has been swayed away by the observations of the Supreme Court. It is true that the Supreme Court did made certain strong observations against the Government in the matter of recruitment to the post of Chief Engineer. Before the Supreme Court the issue was whether the promotion and appointment of the petitioner as per the draft recruitment rules, which did not got the approval of the UPSC, and repatriation of the first respondent to his parent department. In our opinion, the Tribunal should not have allowed itself to be influenced by by the observations of the Supreme Court, which were in fact made in a different context, while deciding the present original application. We, therefore, hold that the Tribunal was not correct in coming to the conclusion that the amendment was brought in to suit the convenience of the Government, that the statutory power was exercised for an unauthorised purpose and that the service rules cannot be framed to suit the convenience or wishes of a particular section or group of employees or an individual.
49. We, therefore, hold that the impugned order passed by the Tribunal holding that Clause 12 of RR, 2005 in so far as it has made Superintending Engineer with ten years of combined regular service in the grade of Superintending Engineer and Executive Engineer out of which at least one year regular service should be in the grade of Superintending Engineer for becoming eligible for promotion to the post of Chief Engineer, PWD, is arbitrary, illegal and violative of Arts.14 and 16 of the Constitution of India is liable to be set aside and, accordingly, it is set aside.
50. Now, we will take up the challenge to the order passed by the Tribunal in O.A. No.57 of 2006. In this original application, the first respondent has challenged the order transferring him from the post of Chief Engineer, PWD to the post of Superintending Engineer, Appropriate Authority, Pondicherry, the order passed by the Government relieving him from the post of Chief Engineer and the appointment of the petitioner as Chief Engineer (Additional Charge).
51. Before the Tribunal, it was contended on behalf of the first respondent that repatriation was on extraneous grounds to defeat the rights declared in favour of the first respondent by various court orders and that the order was passed in vindictive mala fide manner without authority for an oblique purpose. On the other hand, it was contended by the Government that the first respondent was repatriated to his parent department in the interest of administration of the department and in public interest and the repatriation order carried no stigma against the first respondent. In so far as the appointment of the petitioner as Chief Engineer (Additional Charge) was concerned, it was submitted that in terms of RR, 2005 he is fully qualified to be promoted as Chief Engineer.
52. The Tribunal framed two issued, viz. whether the first respondent has got legal right to continue on deputation as Chief Engineer and to question his repatriation to his parent department and whether the repatriation order was passed on mala fide grounds. The Tribunal, after referring to the earlier round of litigation and the orders passed by the High Court and the Supreme Court, held that the first respondent, though appointed on deputation basis, has a right to continue in the post and that the services of the first respondent could not have been dispensed with, without making a regular appointment. After holding so, the Tribunal proceeded further to decide the issue whether the repatriation of the first respondent was tainted with mala fides and malice. The Tribunal after referring to the newspaper reports, protests by the departmental staff, etc. observed that the Government, who is the competent authority to decide the issue, ought to have exercised the administrative powers properly to secure the interest of the first respondent instead of seeking his repatriation. The Tribunal further observed that the hasty manner in which the repatriation and relieving orders were passed and served to the first respondent would clearly go to show that the first respondent has acted in undue haste with wilful and mala fide grounds to forthwith oust the first respondent so as to accommodate the petitioner. Here also the Tribunal seems to have been persuaded by the observation of the Supreme Court that the appointment of the first respondent holds good till a regular appointment is made. The Tribunal completely brushed aside the newspaper publications touching the integrity and efficiency of the first respondent and the resentment expressed by the departmental staff on the reposting of the first respondent as Chief Engineer. The grounds of 'administrative interest' and 'public interest' pleaded by the Government did not find favour with the Tribunal. The Tribunal finally held that the repatriation and relieving orders were not routine administrative orders made in public interest to discontinue the deputation of the first respondent, but orders passed in colourable exercise of powers. The orders were set aside and the first respondent was directed to be restored in the post of Chief Engineer.
53. It was contended by the learned Additional Solicitor General appearing for the Government and learned counsel appearing for the petitioner that when once the amended recruitment rules, viz. RR, 2005 got the approval of the UPSC and the same has come into force with effect from 28-9-2005, the recruitment to the post of Chief Engineer would be governed by the provisions of RR, 2005. It was further submitted that the appointment of the first respondent was only a stop-gap arrangement and for such time till a regular incumbent is selected and appointed as Chief Engineer as per the recruitment rules. The services of the first respondent was borrowed by the Government from CPWD on deputation basis. The CPWD being the parent department is having lien over the tenure of the first respondent as deputationist. The parent department as well as the borrowing department, in the administrative interest, have got every right to recall/relieve the services of the first respondent from the borrowing department. It was also argued that the determination shown by the first respondent in assailing the orders exposes his vested interest in Pondicherry.
54. Our attention was invited to the various correspondence exchanged between the Government, CPWD and UPSC in the matter of recruitment of Chief Engineer on deputation basis. In the letter dated 30-1-2004 addressed by the Secretary to Government to Director General of Works, CPWD, it is stated as follows:
"Since no eligible officer with prescribed conditions of service is available in the feeder grade of Superintending Engineer in Public Works Department, Pondicherry for filling up the post of Chief Engineer, the said post cannot be filled up by promotion. Pending recruitment action by UPSC which may take a long time, it is felt necessary to fill up the post by deputation on short term basis from CPWD."
In the Office Order No.127 of 2004 dated 22-6-2004 issued by the Directorate General of Works, CPWD, New Delhi, it is mentioned as follows:
"Director General of Works, Central Public Works Department, is pleased to place the services of Shri V. Ramakrishnan, Superintending Engineer (Civil) at the disposal of Government of Pondicherry on his appointment as Chief Engineer, Public Works Department, Pondicherry, with effect from 1-7-2004, in the pay scale of Rs.14300-400-18300 on a short term deputation/temporary basis on the usual terms and conditions of deputation.
It is certified that but for his deputation to the Government of Pondicherry, Shri V. Ramakrishnan would have continued to officiate in the CPWD as Superintending Engineer (Civil)."
G.O. Ms. No.30 dated 19-7-2004 issued by the Government of Pondicherry reads as follows:
"The Lieutenant Governor, Pondicherry is pleased to appoint Thiru V. Ramakrishnan, Superintending Engineer (Civil) CPWD, Chennai as Chief Engineer, Public Works Department, Pondicherry in the scale of pay of Rs.14300-400-18300 on the short-term deputation/temporary basis pending selection of the regular incumbent by the Union Public Service Commission with effect from the forenoon of 1-7-2004 on the usual terms and conditions of the deputation as per rules in force."
Therefore, it is clear that the appointment of the first respondent as Chief Engineer, PWD was a short-time deputation/temporary basis till such time a regular incumbent is selected and appointed by the UPSC.
55. It is also pertinent to note that in the earlier round of litigation, the courts came to the rescue of the first respondent on the ground that since the appointment of the first respondent as Chief Engineer was pending selection of the regular incumbent by the UPSC and since the draft recruitment rules were not approved by the UPSC, and so long as the draft rules were approved by the UPSC, the petitioner was ineligible to be appointed as the Chief Engineer. Before the Supreme Court also it was argued on behalf of the first respondent that it was not his case that he wanted to be permanently absorbed but his right to hold the said post for the term he was appointed could not have been defeated. The Supreme Court further observed that 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 rule, i.e. RR, 1996 and the draft rules, therefore, could not form the basis for grant of promotion, when the rules to the contrary are holding the filed. The Supreme Court, after referring to Clauses of RR, 1996, held that the appointment of the first respondent to the post of Chief Engineer was on short term deputation/temporary basis till a regular appointment is made and gave implicit direction to the authorities concerned to expedite the process of filling up the post of Chief Engineer in accordance with law.
56. It is also pertinent here to mention that the letters dated 20-10-2005 and 22-11-2005 written by the first respondent to the Chief Secretary to the Government makes it clear that the staff of PWD expressed their protest in the matter of reposting of the first respondent as Chief Engineer. In the said letters, the first respondent himself has stated that the staffs were not cooperating with him. Taking into consideration the prevailing circumstances, the third respondent passed the order recalling the services of the first respondent from PWD, Pondicherry and he was relieved by the Government of Pondicherry. In view of the repatriation order passed by the parent department, the first respondent has no right much less a legal right either to continue or to claim the post of the Chief Engineer on the basis of the deputation. We are of the considered view that the Tribunal was not correct in setting aside the order dated 20-1-2006 passed by the Government and directing the restoration of the first respondent in service as Chief Engineer. We, therefore, set aside the impugned order dated 4-7-2006 passed by the Tribunal in O.A. No.57 of 2006.
57. The amendment to Clause 12 of the recruitment rules has got the approval of the UPSC and the same has also been notified by the Government in the Gazette dated 28-9-2005, but in view of the legal tangle, the Government could not proceed further in the matter of selection and appointment of a regular incumbent to the post of Chief Engineer as per RR, 2005. The present position, in terms of the Division Bench order dated 29-3-2006 in W.P. No.2778 of 2006, is the first respondent, without prejudice to his rights and contentions in his original applications, has joined the post as per the order dated 20-1-2006 and the petitioner is officiating as the Chief Engineer, PWD. We have already upheld the validity of the amendment made to Clause 12 of the recruitment rules. We, therefore, direct the Government to fill up the post of Chief Engineer, PWD as per the recruitment rules laid down in RR, 2005 and in accordance with law within a period of 12 weeks from today.
58. In the result, the writ petitions are allowed. Connected miscellaneous petitions are closed.
Jai To:
1. The Chief Secretary Government of Pondicherry Goubert Avenue Pondicherry
2. The Secretary Ministry of Urban Development Nirman Bhavan New Delhi 110 011
3. The Director General of Works Central Public Works Department Nirman Bhavan New Delhi 110 011
4. The Secretary to Government (Works) Local Administration and Public Works Department (Public Works Wing) Government of Pondicherry