Delhi High Court
Union Of India (Uoi) And Ors. vs C.E.M.E.S. Association And Ors. on 24 May, 2006
Equivalent citations: 131(2006)DLT636
Author: Mukul Mudgal
Bench: Mukul Mudgal, P.K. Bhasin
JUDGMENT Mukul Mudgal, J.
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1. This writ petition challenges the order dated 17th December, 2003 delivered by the Central Administrative Tribunal, Delhi (hereinafter referred to as the 'CAT'). The writ petition was occasioned by the challenge raised by the respondents seeking a quashing of the Office Order dated 1st August, 2002 and the subsequent Office Order dated 11th March, 2003 merging the two cadres of Civil and Electric Streams of C.P.W.D., leading to the post of promotion to the post of Additional Director General.
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2. The case of the respondents/applicants before the CAT, was as follows:
A. The Central Public Works Department ( in short 'CPWD') was formed in 1930 for design, construction and maintenance of Central Government buildings. Right from the inception the civil stream and the electrical stream were made distinct and separate and were governed by separate 1954 Rules drawn under Article 309 of the Constitution of India. There were separate sub-divisions head by the Chief Engineers (Civil) or Electrical. There were also posts of Additional Director General which were filled from eligible Chief Engineers(Civil/Electrical) and also the post of the Director General (Works) required to be filled by promotion from the post of Additional Director General.
B. From 1996, civil and electrical streams were governed by the newly formed Rules, which maintained the distinct entities of the civil and the electrical streams right up to the rank of Chief Engineer. The impugned office orders dated 1st August, 2002 and 11th March, 2003 were challenged before the CAT primarily on the ground that without resorting to amendment of the Rules, merger of the two streams of Civil and Electrical mandated by the Rules particularly that of the post of Chief Engineer was illegal.
3. The petitioner UOI, who was the respondent before the Tribunal contended that the CPWD executes projects on turnkey basis from concept to completion which includes the provision of all matters related to civil, architectural, electric and mechanical services. The Chief Engineer-in-Charge of the zone is accountable to the clients for the execution of the works and the existing system does not provide for coordination at the level of a zone. That leads to lack of cooperation sometimes between the two wings on the civil and electrical side and the zone was set up for achieving complete coordination. The UOI contended that it had the right to frame the rules and the aim and object of the impugned order was to streamline the working of the CPWD.
4. By the impugned judgment the Tribunal held as follows:
(a) In exercise of the power conferred under Article 309 of the Constitution of India, the Ministry of Urban Affairs and Employment (Department of Urban Development), Central Engineering (Civil) Group A Service Rules had been brought into force in 1996. These 1996 Rules covered the hierarchy of the post starting from Assistant Executive Engineer to the Chief Engineer (Civil). On 28th October, 1996 similar rules were also framed in respect of the Electrical wing.
(b) There are separate streams up to the rank of Chief Engineer, both in the Civil and the Electrical wings and these are therefore separate cadres governed by different Rules.
5. The two office orders dated 1st August, 2002 and 11th March, 2003 which were challenged before the Tribunal read as follows:
Order dated 01-08-2002
(i) Each zone shall headed by a CE(C) or CE(E) subject to the conditions there will be at least on CE(E) heading a zone in each Region.
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(ii) The financial, administrative, technical powers have been delegated to various officers in CPWD, viz, AE/AEE/EE/SE/CE/ ADG/DG without indicating discipline. Therefore, up to SE level or equivalent officers in the respective discipline, will exercise their delegated powers. Chief Engineer as zonal head, shall exercise these powers for both civil or electrical works. Professional/technical advice required, if any, shall be taken from the office of ADG (Region) who has both CE (C) as well as CE(E)at his disposal.
(iii) In case of Architectural staff, each zone shall have one Sr. Architect Unit. The architects have been assigned the responsibility to deal with the projects of specific value from pre planning stage to the issue of Completion Certificate. He/she shall coordinate all the planning activities up to NIT stage. For works more than his/her delegated powers, Chief Architect shall supervise and guide the Senior Architect.
2. To start with, this system will be tried in the new Delhi Region under the supervision of ADG (SandP), DG(W), CPWD may take further necessary action under intimation to this Ministry.
Order dated 11th March, 2003 Subject: Reorganisation of zones in New Delhi Region under ADG (SandP) for unified control.
In pursuance of Ministry of Urban Development and Poverty Alleviation Officer Order No: 28017/2/2002-EWI dated 01.02.2002 and in order to maintain interdisciplinary coordination amongst various disciplines of CPWD, DG(W) CPWD is pleased to reorganize the circles and divisions amongst NDZ-I and 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 (SandP).
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 discipline.
5. In case of the architectural staff, the allocation of Senior Architect unit shall be as under:
i) NDZ-1 and NDZ -5 : Senior Architect-13
ii) NDZ-2 : Senior Architect-3
6. The reorganization of zones and their jurisdiction shall be as per the Annexure-1, 2 and 3 respectively?.
6. The Tribunal relied upon the judgment of the Hon'ble Supreme Court in P.U. Joshi v. Accountant General to hold that it is open to the State by appropriate rules to amalgamate departments or bifurcate Page 2034 departments into more and constitute different categories of posts or cadres by further classification, bifurcation or amalgamation. Relying upon the above judgment, the CAT held that the Hon'ble Supreme Court has laid down that no Government employee had a right to claim that rules governing conditions of his service shall forever remain the same. However, it was held that the State can amalgamate the department only by making the appropriate rules.
7. The Tribunal further held that the amendment in the recruitment rules was essential if amalgamation of different cadre was to be effected. The Tribunal clearly found that the impugned orders created a situation where another post of Chief Engineer which could either be Civil or Electrical came into being. This had the effect of overriding the mandate of the 1996 rules. The Tribunal has held while allowing the O.A. and striking down orders dated 1st August, 2002 and 11th March, 2003, that the amalgamation of different cadres could not be done except by the amendment of the rules and the Government has no power to do so by office orders. Consequently, in the operating portion of the judgment, the Tribunal has held as follows:
For these, reasons, we allow the present application and quash the impugned orders Annexure A-1 dated 01.08.2002 and Annexure A-2 dated 11.03.2003. However, we make it clear that if any such merger of the two cadres has to be effected this should only be done after taking necessary steps in accordance with law.
8. We see no basis for challenge to the aforesaid judgment of the CAT which has preserved the right of the Government to amalgamate the cadres by appropriate amendment to the Rules. However, we are of the view that the Tribunal's order was fully justified as it is settled law that no executive orders, such as the order dated 1st August, 2002 and 11th March, 2003, which were merely office orders, could negate the effect of the statutory rules. Furthermore it is the petitioner's own case in para 3.10 of the writ petition that the Ministry had no intention to merge the Civil and Electrical stream which are two district services having separate recruitment rules. If this be so then the impugned office orders which had the effect of heading of a zone by a Chief Engineer either Civil or Electrical in effect amounts to merger of the two streams at that level without amendment of the rules.. It is settled law that no executive instruction/order can override the mandate of statutory rules. This is what has been attempted to be done by the orders which were challenged in the CAT. The CAT having preserved the right of the Government to amalgamate the two cadres by amending the rules, we see no cause or justification for any grievance on behalf of the Government. The writ petition is accordingly dismissed. The interim order dated 16th August, 2004 staying the operation of the Tribunal's order dated 17th December, 2003 passed in OA 864/2003 stands vacated.
The writ petition and all pending applications stands disposed of accordingly.