Central Administrative Tribunal - Chandigarh
Satnam Singh vs Union Territory on 7 September, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL,
CHANDIGARH BENCH.
O.A.NO.237-CH-2012 Decided on :7th September, 2012
CORAM : HONBLE MR. JUSTICE S.D. ANAND, MEMBER (J),
HONBLE MRS. SHYAMA DOGRA, MEMBER (J) &
HONBLE MRS. PROMILLA ISSAR, MEMBER (A)
1. Satnam Singh, Aged 48 years S/O S. Labh Singh, presently working as Test Inspector (Electricity) M&P Sub Division, Industrial Area, Phase-II, Chandigarh.
2. Sucha Singh, Aged 44 years S/O Sh. Gurdas Singh, presently working as Junior Engineer (Electricity), Electricity Sub Division No.1, Sector 23-D, Chandigarh.
Applicants
.
By: Mr. R.K. Sharma, Advocate.
Versus
1. Union Territory, Chandigarh Administration through its Administrator.
2. Secretary, Engineering Department, Union Territory, Chandigarh.
By: Mr. Vinay Gupta, Advocate.
3. Jaswinder Singh, Junior Engineer, Electricity holding Additional Charge of the post of Assistant Engineer Electricity, Electricity Enforcement, Wing, Circle Office, Sector 9, Chandigarh.
4. Rakesh Mahajan, Junior Engineer Electricity holding additional charge of the post of Assistant Engineer Electricity, Operation Sub Division No.3, Sector 18, Chandigarh.
5. Madan Mohan, Junior Engineer Electricity, holding additional charge of the post of Assistant Engineer Electricity, Operation Sub Division No.4, Sector 15, Chandigarh.
By : Mr. H.S. Sethi, Advocate.
6. Ram Pal, Head Draftsman O/O Superintending Engineer, Electricity Operation, Sector 9, Chandigarh.
By: Mr. S.K. Bedi, Advocate.
Respondents
Reserved on :01.08.2012
ORDER
HONBLE MS.SHYAMA DOGRA, MEMBER (J)
1. When the aforesaid O.A. came up for hearing on 26.4.2012 before a Division Bench, finding that the issues involved in this case may have larger legal implications, it was referred to the Larger Bench on the following points :-
i) Whether as per the finding given in the case of M.P. Singh Wasal Vs. UOI OA No.769/CH-2010, decided on 15.12.2010, the applicants are governed by the P.S.E.B. Service of Engineers (Elect.) Regulations, 1965 for the post of Assistant Engineer?
ii) If the answer to the query at No. (i) above is in the negative then, whether the classification of the post of Assistant Engineer (Electricity) which is shown as a Class-II post in the PSEB Regulations, 1985 as framed by the Administrator, Union Territory, Chandigarh by virtue of powers conferred under proviso to Article 309 read with notification No. 3267, dated 1.11.1966, can be modified to that of Group A on the basis of classification made under the orders / notification issued under the Pay Rules without amendment of the Recruitment Regulations of 1985.
iii) In view of the fact that the posts of Asstt. Engineer and Asstt. Executive Engineer have been combined by the respondents, can the post of Asstt. Engineer continue to be in Group-B and the post of Asstt. Executive Engineer be in GroupA, without making necessary amendment in the Recruitment Rules ?
2. The applicants have filed this Original Application under section 19 of the Administrative Tribunals Act, 1985, seeking the following relief(s) :-
(i) Action of the official respondents, whereby they considered claim of the private respondents for promotion from the post of Junior Engineer Electricity to the post of Assistant Engineer Electricity in violation of the service regulations known as Punjab State Electricity Board, Service of Engineers (Electrical) Regulations, 1965, Punjab State Electricity Board, Service of Engineers (Electrical) (Chandigarh Amendment) Regulations, 1985, notified on 16th October, 1985 as amended from time to time to the extent Diploma Holders are being considered against the vacancies in excess of their quota and thus ignoring claim of the applicants to their quota as they are not being considered for promotion may kindly be quashed to that extent.
(ii) Directions may be issued to the official respondents to consider claim of the applicants for promotion from the post of Test Inspector Electricity (equivalent to Junior Engineer Electricity) to that of Assistant Engineer/ Junior Engineer etc. against quota provided for Technical Subordinates who obtained qualification of Degree of B.E. during service and to consider them for promotion from due date with all consequential benefits.
(iii) Any other relief to which the applicant is found entitled to may also be granted in his favour.
3. It is stated that applicant No.1, possessing qualification of ITI certificate of Electrician was appointed as Meter Mechanic on 4.2.1988 is Electricity Wing of U.T. Chandigarh. He was promoted on 05.12.2003 as Test Inspector which is equivalent to post of Junior Engineer and till now he has been serving in Metering and Protection (M & P) of the Electricity Wing, Union Territory, Chandigarh. He qualified degree of B.E. Electrical from Institute of Advance Studies in Education (IASE) University, Gandhi Vidya Mandir, Sardarshahr, Rajasthan in the year 2004-08 during service,, which has been declared equivalent to B.E. by the Punjab University and has been accepted as such by the respondent department and many of the promotions have been made on that basis e.g. promotion S/Shri Vijay Kumar, Gurbinder Singh, Karam Singh etc. Similarly, applicant No.2 possessing qualification of ITI was appointed as Sub Station Attendant (SSA) on 18.01.1991. This post was re-classified as Lineman in January, 1997. He obtained Part Time Diploma with the permission of the Department in December, 2004 and was promoted as Junior Engineer w.e.f. 23.02.2006. He also qualified Degree in B.E. in Electrical from I.A.S.E. University, Gandhi Vidya Mandir, Sardarshahr during 2004-2008 while in service.
4. The applicants submit that the promotion from the post of Junior Engineer is to the post of Asstt. Engineer (Electricity) (A.E. in short), which is governed by the Pb. State Electricity Board Service of Engineers (Electrical) Chandigarh Amendment Regulation, 1985 (Annexure A/1) (Referred to as Chandigarh Regulations of 1985). Under provisions of regulation 9(7) of these Regulations, 9% quota of the Cadre Post of A.E.is reserved for departmental employees, who obtain the requisite degree while in service of the Engineering Department Chandigarh and complete three years of service. 9% quota of the cadre post of A.E. is reserved for those who obtained requisite degree before joining service.
5. The basic grievance of the applicants in the Original Application is that without amendment of the Punjab State Electricity Board Service of Engineers (Electrical) Chandigarh Amendment) Regulations, 1985, the post of Assistant Engineer (Electricity) a class-II post under these rules, cannot be designated/classified to that of a Group A post, on the basis of a classification made under the Pay Rules as administrative / executive instructions or notifications cannot overrule the statutory provisions unless such orders are incorporated in the relevant rules by way of amendment by competent authority, through proper process which are to be framed under the proviso to Article 309 of the Constitution of India. Therefore, promotion of the private respondents is in violation of aforesaid Regulation of 1985 that too in excess of their quota provided under these regulations.
6. According to the applicants, as per Regulations of 1985, there are 10 post of A.E. and quota of various categories is given as under:
Sr. No. Share Quota Description Total
1.
12% Diploma Holder (12X11/43=3.03) 3
2. 10% Non Diploma Holder (12x11/43=2.24) 2
3. 03% Drawing Staff (3%x11/43=0.76) 1
4. 9% AMIE during Service (9%x11/43=2.30) 2
5. 9% AMIE before joining service 9%x11/43=2.30) 2
7. The applicants further allege that the P.S.E.B. has made some amendments in their Regulations of 1965 from time to time and latest vide Annexures A/2, A/3 & A/5 (R-4). By virtue of these amendments, the P.S.E.B. has changed the quota of A.M.I.E./degree holders while clubbing together the post of A.E. (obtaining degree during service and before service) and reducing it to 14% which otherwise is 18% in Regulations of 1985. As per new amendments made by Punjab Electricity Board, the quota of Diploma Holder was increased to 30% which is 22% in the Chandigarh Regulations of 1985.
8. The grievance of the applicants is that the respondents without adopting these amendments through proper legal process have wrongly made applicable in Chandigarh Engineering Department and promoted one Sh. Vijay Kumar following these amendments, which resulted into availability of two vacancies of A.E. and applicants being eligible having obtained degree while in service can be considered for promotion against these posts under Regulation 9(7) of Chandigarh Regulations of 1985. They further submitted that one Sh. Jaswant Lamba, who also acquired B.E. degree during service and at present is holding the post of A.E. is likely to be promoted to the next higher post, thus one more post of A.E. is anticipated. The applicants claim themselves to be at No.1 and No.2 in the seniority list. They have supported this claim on the basis of DPC proceedings held in December 2009 vide Annexure A/5.
9. It is therefore the projected case of the applicants that under Chandigarh Regulations of 1985, there is no vacancy available for Diploma Holders J.Es and Draftman for their promotion to the post of A.E. and since amendments made by the Pb. S.E.B. vide Annexures A-2, A-3 & A-5 (R-4) have not been adopted through proper legal process, their quota cannot be increased as has been done by the Pb. S.E. Board through aforesaid amendments and they cannot be promoted in excess of their quota.
10. It is further submitted by the applicants in their rejoinder that since Administrator is not empowered to make rules for Class-I post in view of notification dated 13the January 1992 and dated 1.11.1966, issued by Government of India, the respondents cannot club together the posts of A.E. and Asstt. Executive Engineers (A.E.E.) designating it as Group A post, on the basis of some notifications which have come into force after revision of pay-scales on the recommendations of VIth CPC. Such classification is meant only for the purpose of grant of revised pay-scales and unless appropriate amendment is made in the Service Rules, Regulations of 1985 in the present case, these two posts have separate classification.
11. The official respondents have filed a reply to oppose the claim of the applicants. They have raised a preliminary objection that the issue of validity of Degree of B. Tech in Electricity Engineering attained by them through Institute of Advanced Studies in Education, Gandhi Vidya Mandir, Sararshahr, Rajasthan during the year 2004-2008 through Distance Mode, is already under challenge in the Punjab and Haryana High Court including O.A.No. 970-CH-2011 titled Naresh Kumar Vs. Union of India & Others, in which applicants were impleaded as respondents and the said case stood adjourned sine-die vide order dated 17.2.2012 (R-2). The L.P.A. is also pending in the Honble High Court of Pb. and Haryana against the order of Honble Single Judge, in the case of Swaran Singh & Ors. Vs. Pb. S.E.B. & ors (CWP No.6243/10) which was decided on 27.1.2012 in favour of the petitioners who obtained this degree. In L.P.A, order of Single Judge has been stayed.
12. The respondents further submit that applicants themselves claim that they are governed by Regulations of 1965 as amended from time to time. The Chandigarh Administration vide notification dated 16.10.1985 has framed its own Regulations of 1985 which were challenged in O.A.No. 769-CH-2010 titled as M.P. Singh Wasal Vs. Union of India & Others, which was decided on 15.12.2010 (R-3), holding that Chandigarh Administration was not competent to frame the said Regulations of 1985 and promotions of Class-I Establishment under the Electricity Wing of Chandigarh Administration shall be regulated as per provisions of PSEB Service of Engineer (Electrical) Regulations, 1965, as amended from time to time. The respondents, with the approval of competent authority implemented said decision and in pursuance thereof, Shri M.P Singh stands promoted as Superintending Engineer.
13. It is also averred by the respondents that as per law laid down in the case of M.P. Singh (supra), the respondents initiated the case for filling up of 4 vacant posts of AE (E) by promotion from eligible Additional Assistant Engineers. As per the provisions of the 1985 Regulations, as amended from time to time, the said 4 vacancies were required to be filled up from eligible Additional Assistant Engineers having diploma in Electrical Engineer and Circle Head Draftsman. The Pb. Regulations of 1965 have been amended by PSEB vide Order / Circular No. 30/03 dated 17.10.2003 (R-4) by amending the criteria for filling up the post by clubbing the sanctioned posts of Assistant Engineers (AE in short) and Assistant Executive Engineers (AEE in short), as the duties and responsibilities / classification as well as the pay-scale of both the aforementioned posts are similar. By this amendment, it is provided that the promotion quota posts shall be calculated on 50% strength of AEs and AEEs. It should be @ 30% for JE-I but may not be less than 22.5% of the total cadre strength of AEs and AEEs, 14% for AMIE/Degree and 3% for drawing staff. Provided further, if at any point of time, the total representation of promoted AAEs in the cadre of Assistant Engineers and Assistant Executive Engineers taken together, is less than 22.5% of the total cadre strength of Asstt. Engineer, Asstt. Executive Engineers, then the short fall (as per already existing rules) in the cadre of Asstt. Executive Engineers may be made by allowing higher number of promotions in the cadre. The total cadre strength of Assistant Engineer as well as Assistant Executive Engineers comes to 23. After clubbing these posts as per PSEB Office Order dated 17.10.2003 (R-4), the total cadre strength of AEs/AEEs, after taking into account the percentage of promotion prescribed against each source for promotion to the post of Assistant Engineer, for filling up by promotion from amongst the feeder cadres of AAE (JE-I) (Diploma) / AMIE-Degree and drawing staff is calculated as under :
(i) 30% for AAE (JE-I) having Diploma / Non Diploma Holders. (30x23=6.90) = 7 Posts
(ii) 14$ for AMIE/Degree (14% x 23 = 3.22) = 3 Posts
(iii) 3% for Drawing Staff (3%x23=0.69) =1 post Total (50% of 23) 11 posts.
14. The respondents further added that against 11 posts, which go to the share of promotee quota, the following posts have been occupied against each quota :-
Sr. No. Description Total Filled up as on date Vacant 1&2 DIPLOMA HOLDER / NON DIPLOMA HOLDER 07 04
1. Shri Raja Singh
2. Shri Daleep Kumar
3. Shri Gurnam Singh 04 Vacant 3 Drawing Staff (NIL) 01 NIL 01 4 AMIE/DEGREE 03 03
1. Shri Krishan Kumar
2. Shri Vijay Kumar
3. Shri Balbir Singh NIL.
Shri Jaswant Lamba who was also considered against the said quota has already been promoted as AEE.
15. The respondents have also submitted that against four posts meant for diploma / Non Diploma Holder category and one vacant post of Drawing quota available, the respondents initiated the case for filling up three posts of AEs from amongst Additional A.Es (AAEs) having Diploma in Electrical Engineering and one post of AE from amongst the feeder cadre of Circle Head Draftsman having requisite experience as prescribed in the recruitment rules. The aforesaid Additional Assistant Engineers / Circle Head Draftsman are senior most in the cadre and senior to the applicants. The present vacancies pertain to the share / quota of diploma holder AAE/JE Grade-I and Circle Head Draftsman and none of them relate to Degree Holders. The claim of the applicants shall be considered at the appropriate time when any vacancy relating to their quota falls vacant as per their position in the seniority list as well as the other essential requirements provided under the statutory rules including Vigilance Clearance, bench-mark etc. as well as after taking into account the status of degree qualifications acquired by applicants. The Original Application is pre-mature as applicants have not waited for a decision on their representation date 31.1.2012 (R-6) On the basis of Punjab Rules of 1965, S/Shri Rohit Kumar Sekhri and Pawan Kumar Sharma, AEs were promoted as AEE vide orders dated 28.7.2011, as per order of this Tribunal in O.A.No. 15-CH-2011 titled P.K. Sharma & Others Vs. Union of India & Others (R-6 and R-7) which were decided in terms of decision in M.P. Singhs case (supra). Further promotions have also taken place as per Pb. Regulations of 1965, amended from time to time and adopted by the Chandigarh Administration.
16. The private respondents No. 3 to 5 have also filed a reply. They submit that Regulations of 1985 are not at all applicable as the post of Assistant Engineer (AE) and AEE is a Group A post and as per the judgment in the case of M.P. Singh Wasal (supra), the Rules of 1965 would be applicable. This Tribunal in O.A.No. 15-CH-2011, has held that even for the post of AEE, 1985 Rules will not be applicable in view of judgment in the case of M.P. Singh (supra). Similar view has been taken in the case of Pawan Kumar Sharma (supra). The posts of AE and AEE have been clubbed as the duties and responsibilities / classification as well as pay scales of both the above mentioned posts are similar. The Institute from which degrees have been obtained by the applicants is not recognized and is not permitted to award degrees. Since both AE and AEE are Group A posts, 1965 Rules with their amendments have rightly been applied. The clubbing of posts has been done under 1965 Punjab Rules and not under Chandigarh Regulations of 1985. As per law settled in the case of M.P. Singh (supra), Rules of 1985 are not applicable for Group A posts.
17. The applicants have filed a replication to the reply of official respondents. They submit that issue of diploma obtained by the applicants is not in dispute as on the basis of such diploma, S/Shri Rameshwar Dass and Karamjeet Singh were promoted as JE and their O.As. No. 790/CH/2007 and 601/CH/2010 have already been decided. The Administration has already granted benefit of promotion for the post of J.E. to one Shri Gurwinder Singh, who was granted benefit by the Administration at their own without any court orders. On the basis of similar degree, certain other persons namely Shri Jaswant Lamba, Sh. Vijay Kumar have already been promoted. The concerned University has been granted status of University by UGC on 17.7.2002. The Courses conducted by the University are recognized by Govt. of India. A number of judgments are already there in favour of such degree holders.
18. The applicants further submit that the post of A.E. is a Group B post and it would be governed by Chandigarh Regulations of 1985. The competent authority to frame regulations upto Group B is Administrator. Thus, judgment in M.P. Singhs case would not be applicable as in that case applicant M.P. Singh has sought promotion to Group A of A.E.E. post, which was classified as such in Pb. Regulations of 1965, whereas under Chandigarh Regulations of 1985, the post of AE is still Group B post and as such is to be filled in by Chandigarh Regulations of 1985. The Administrator, Union Territory, Chandigarh is competent to frame Recruitment Rules for Class II, III and IV posts only by virtue of notification No. 3267 dated 1.11.1966 (Annexure A-9) and not for Group A post. Even in earlier DPC Agenda, proposals were sent for promotion to the post of AEE under 1985 Regulations as is evident from Annexure A-4 dated 22.9.2009 (wrongly mentioned as Annexure A-5 in the paper book).
19. The applicants have also filed replication to the reply of Respondent No. 3 to 5 and reiterated their submissions as made in the Original application with further addition of the fact that any regulations, administrative instructions or amendments made by the Punjab Govt. in the Rules as applicable to Punjab employees can be applied to U.T. employees, if such notifications etc. are adopted by the Administrator through proper process. Therefore, such amendments, regulations, notifications or instructions cannot be adopted by U.T. Administration by way of issuance of administrative instructions by the Administrative authorities as has been done in the present case. The Secretary (Engineering) or any other administrative authority is not competent to adopt such instructions or notifications of amendment of Punjab Rules of 1965.
20. Thus they submit that since amendment made in P.S.E.B. Rules of 1965 were not adopted by the competent authority of the U.T. Administration, therefore, amendments made by Pb. Board vide Circular No. 30 of 2003, Annexure A-2, A3, A-5 (R-4) were not applicable to U.T. employees, hence vacancies which fell to the share of candidates who acquired qualification of Degree during service or prior to joining service cannot be given to the category to which the private respondents belong in excess of their quota provided under Chandigarh Regulations of 1985.
21. We have heard learned counsel for the parties at length and examined the material on the file.
22. First of all, we will deal with the issue of validity of the Degrees / Diplomas obtained by the applicants from Institute of advance Studies in Education Gandhi Vidya Mandir, Sardarshahr (Rajasthan), a Deemed University, on the ground that degree obtained by Distance Education Mode cannot be treated as equivalent to degree obtained through regular classes. We need not delve into this issue any more in view of latest dictum of the High Court of Punjab and Haryana in C.W.P. No. 6243 of 2010 titled Swaran Singh and Others Vs. The Punjab State Electricity Board, Patiala decided on 27.1.2012 in which similar issue was involved regarding validity of degree of B.Tech from the same University. The Court negatived the objection taken by the State that the degrees granted through distance education cannot be equivalent to regular course. The Court was not shown any particular prohibition against Deemed University having Distance Education Programme under any provision of the UGC Act to disqualify a person for consideration. Directions were issued to the respondent in that case that petitioners would be treated as duly eligible for consideration for promotion. Thus, the degree obtained by the applicants herein also cannot be questioned at this stage by the respondents in view of the law laid down by the Honble Punjab and Haryana High Court in the case of Roshan Jagdish Lal Duggal & Other Vs. The P.S.E.B. Patiala & Ors. 1984 (2) SLR 731, wherein it was held that pendency of appeal does not have the effect of rendering the order non-est till the disposal of appeal and in the case of Swaran Singh (supra) but this observation is subject to final outcome of the LPA pending against the above referred order in which operation of the aforesaid judgment was stayed. Therefore, since matter is subjudice, we leave it to the respondents to decide this aspect in their wisdom, subject to final outcome of the said LPA.
23. It is not in dispute that in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, read with Government of India, Ministry of Home Affairs, Notifications dated 1.11.1966 and 13.01.1992, the Administrator, Union Territory, Chandigarh was pleased to issue Punjab State Electricity Board Service of Engineers (Electrical) (Chandigarh Amendment) Regulations, 1985. Vide notification dated 13.1.1992, the Chandigarh Administration had adopted the corresponding Service Rule of Punjab with effect from 1.4.1991. It is also an admitted legal position that where the Chandigarh Administration has its own rules, the Punjab Rules would not be applicable in view of R.K. Basandhis case and where no such rules are formed, Pb. Rules would be ipso facto applicable for the time being.
24. Now let us consider the issue referred to the Larger Bench - Whether as per the finding given in the case of M.P. Singh Wasal, (supra) decided on 15.12.2010, the applicants are governed by the P.S.E.B. Service of Engineers (Elect.) Regulations, 1965 for their promotion to the post of Assistant Engineer, which otherwise has been mentioned as Class-II post in Chandigarh Regulations of 1985. In that case, the Court was dealing with the issue of filling up the post of Superintending Engineer (SE) in accordance with the Punjab State Electricity Board Rules, as applicable to U.T. employees in view of the law laid down in the case of U.T. Chandigarh Vs. R.K. Basandhi, 2004 (1) SCT 680 (Supra).
25. The stand of the respondents in the aforesaid case was that the Administrator of the Union Territory of Chandigarh is competent to frame rules for recruitment / promotion to the Class I posts and he had, in turn, delegated the relevant power to the Adviser to the Administrator, vide notification dated 25.2.1988. However, vide Notification dated 1.11.1966, issued by the Government of India, Ministry of Home Affairs, New Delhi, the President of India authorized the Administrator of U.T. Chandigarh to exercise the power to make rules in regard to matters indicated therein including the recruitment etc. to the Central Civil Services for Class II, III and IV posts only. In that notification, there was no authorization for Class I post. The Chandigarh Administration had framed its own Recruitment Rules known as Chandigarh Regulations, 1985, while making amendment of same Rules of Punjab 1965 Rules. So, the choice was to be found as to which of the two Rules is to be followed. The Court ultimately held in Para 29 as under :-
In view of the above documentation-based scenario, we are clear in our mind that the President of India had not authorized the Administrator, Union Territory of Chandigarh, to frame rules qua the Class I posts. It follows there from that the reliance placed by the Chandigarh Administration upon notification dated 25.2.1988 is misconceived.
26. While analyzing the aforesaid notifications of 1992 and 1966 (supra) & Notification dated 2.5.1988, the Court in paras 21, 22, 24, 27 & 28 from M.P. Singhs case has also observed as under:-
21. Annexure A-5 is the plenary notification, dated 1.11.1966, issued by the Government of India (Ministry of Home Affairs) in terms of the proviso to Article 309 of the Constitution of India. It is thereby that the Administrator, Union Territory of Chandigarh, was authorized to exercise the relevant powers with regard to the various Classes of posts, except Class-I posts. Our attention has not been invited by the learned counsel for respondents to any notification which may have amended/ superseded the notification aforementioned (Annexure A-5).
22. Annexure A-6 is a communication vide which the Department of Personnel of the Chandigarh Administration informed the Chief Engineer, Union Territory of Chandigarh, that the Government of India had not delegated the powers of making recruitment rules in respect of Class-I posts to the Administrator, Union Territory of Chandigarh. Even at the cost of repetition, it may be noticed that the clarification aforementioned came to be issued on 21.5.2004. Minutes of the meeting held on 17.4.1967 (Annexure A-7) are further supportive of the fact-based inference aforementioned. A similar scenario is available in the documentation (Annexure A-10) which again is a communication addressed by the Chandigarh Administration (Department of Personnel) to the addressee aforementioned i.e. the Chief Engineer, Union Territory of Chandigarh.
23. xxx
24. Interestingly enough, the UPSC (in the course of the short reply filed by it) did not, at all, indicate that it had been consulted in the matter of formulation of any rules (for recruitment to Class I posts) by the Chandigarh Administration. This aspect is to be appreciated in its relatability to a fact mentioned in Annexure A-6 to the effect that the Recruitment Rules for Group A posts require the concurrence of the Union Public Service Commission before being notified by the Government of India. Though UPSC indicated that it was not offering parawise response to the averments made in the course of the O.A., it cannot be denied that it nowhere averred that it had ever been consulted in the aforementioned context of concurrence by the Chandigarh Administration. It is apparent from the pleadings raised by the UPSC that it refrained from offering a parawise response as they are an advisory body set up under Article 315 of the Constitution and they have a constitutional obligation to ensure that all the selections made for regular appointments to the services/ posts of the Union of India, as falling under the purview of the Commission, are made strictly in accordance with the statutory Recruitment Rules and the relevant instructions issued by the Government of India from time to time.
25. xxx
26. xxx
27. It would be evident, from a perusal of Annexure R-2, that it authorized the Administrator to delegate those powers which were vested in him under any law in force. We have already noticed the notification dated 1.11.1966 issued by the Government of India (in the Ministry of Home Affairs) in terms of proviso to Article 309 of the Constitution of India. As already indicated, no notification amending or superseding it was brought to our notice.
28. The following conclusions can, thus, be safely culled out from the above discussion:-
a)On the coming into being of the Union Territory of Chandigarh with effect from 1.11.1966 under the provisions of the State Reorganization Act, the Government of India (in the Ministry of Home Affairs) issued notification dated 1.11.1966 (Annexure A-5) authorizing the Administrator, Union Territory of Chandigarh to exercise the power to make rules in the matter of the methodology etc. for recruit the Central Civil Services and posts which were a part of Class II, Class III and Class IV services under his administrative control in connection with the affairs of the Union Territory of Chandigarh. No notification, amending or superseding it has been brought to our notice. Our attention has also not been invited to any notification issued by the Govt. of India in terms of the proviso to Article 309 of the Constitution of India, vide which the President of India may have authorized the Administrator of Union Territory of Chandigarh to exercise the power aforementioned to make rules in regard to the recruitment or conditions of service of Class I posts.
b)The Union Territory Administration reiterated, vide Annexure A-6, the decision that the Govt. of India had not delegated powers of making Recruitment Rules in respect of Class I posts to the Union Territory of Chandigarh. The relevant documentation is dated 21.5.2004.
c)The position evident from the above documentation was reiterated by the Chandigarh Administration (Department of Personnel) vide Annexure A-8 which purports to be a documentation dated 17.8.2005 which, in turn, was based upon the resolve dated 17.4.1967 in the relevant behalf. Annexure A-7 purports to be the summary record of discussion held in a meeting chaired by the Secretary, Ministry of Irrigation and power on that date.
d)Annexure A-10 is also a reiteration on the part of the Chandigarh Administration (in the Department of Personnel) of the above-indicated position. Annexure A-11 (a notification dated 13.1.1992 issued by the Government of India in the Ministry of Home affairs) categorically provided that the conditions of service of person appointed to the Civil Services and posts in Group A, B C and D under the administrative control of the Administrator shall, subject to any other provision made by the President in this behalf, be the same as the conditions of service of person appointed to corresponding posts in Punjab Civil Services and shall be governed by the same rules and orders as are for the time being applicable to the latter category of persons.
e)In the course of the pleadings in O.A. No.235-CH/2005 of (Annexure A-28), the Chandigarh Administration had relied upon the proceedings of the meeting dated 17.4.1967 and also the advice tendered by the Department of Personnel to aver that the decision taken in the meeting dated 17.4.1967 is to be followed.
f)The respondent Chandigarh Administration also announced a policy decision to fill up the relevant vacancies in the cadre of Sub Divisional Engineer (Civil/ Public Health/ Mechanical/ Electrical ) as per the provisions of the Punjab Service of Engineers (Civil Wing) Department of Public Works (B & R Branch) Group A Service Rules, 2005 as notified by the Govt. of Punjab vide notification dated 14.10.2005.
27. The observations made by the Court in M. P. Singhs case are self explanatory. It was, held in Para 31 clearly that the applicant therein having been promoted as Executive Engineer w.e.f. 27.12.2002 was eligible for promotion to the post of Superintending Engineer Class-I , in terms of the Punjab State Electricity Board (Service of Engineers (Electrical) Regulations, 1965. Further direction was issued to hold the DPC accordingly. It would be relevant to mention here that Pb. Regulations of 1965 were made applicable for Class-I only as the Administrator has not framed such Rules being not-empowered to do so. However, it was never held in that case that these Regulations would also be applicable to other posts (Group B, C etc.) if amended from time to time by Punjab Government, as claimed by the respondents in the present case.
28. The twist in this case is that after the revision of pay scales w.e.f. 1.1.2006 and grant of particular grade pay, the post of AE and AEE has been classified as Group A Post by clubbing these posts together. The question is, whether classification of the post as Group A under the instructions and provisions of Pay Rules, can be taken to be automatic classification as Group A for the purpose of applicability of Recruitment Rules as well. Learned counsel for the respondents submitted that once the post in question stands classified as a Group A post by way of re-classification, it has to be governed under Pb. 1965 Rules as amended from time to time, whereas the learned counsel for the applicant submitted that the Chandigarh Administration has not issued any formal Notification in this regard and as such the Chandigarh Regulations of 1985 would govern the post in question, under which it is still a Group B post.
29. Learned counsel for the respondents produced a Notification dated 21.7.2010 issued by the Chief Engineer, Engineering Department, Chandigarh Administration in supersession of the office orders dated 7.4.2010, whereby sanction was accorded to the re-classifying of various Group A, B, C and D posts in the Electricity Wing of the Engineering Department, U.T. Chandigarh on the basis of grade pay attached to the pay band in pursuance of Punjab Government Notification dated 27.5.2009 adopted by the Chandigarh Administration, Department of Personnel, vide letter dated 7.7.2009. In this Notification all the posts in the grade pay of Rs.5000/- and above upto Rs.9600/- have been classified as Group A and grade pay of Assistant Engineer (Electricity) an Assistant Executive Engineer (E) is mentioned as Rs.5800/-. Thus, it has been classified as a Group A post. No other notification issued either by the Government of India or by Administrator has been shown to the Court.
30. On the other hand, learned counsel for the applicant placed reliance on the decision rendered in the case of Dr. Rajinder Singh V. The State of Punjab & Ors,. JT 2001 (4) SC 538, in which it was held that Government orders, notifications or circulars cannot be a substitute for statutory rules framed with authority of law. In para 7 thereof, it was held as under :
The settled position of law is that no Government Order, Notification or Circular can be a substitute of the statutory Rules framed with the authority of law. Following any other course would be disastrous inasmuch as it would deprive the security of tenure and right of equality conferred upon the civil servants under the constitutional scheme. It would be negating the so far accepted service jurisprudence. We are of the firm view that the High Court was not justified in observing that even without he amendment of the Rules, the Class II of the Service can be treated as Class I only by way of notification. Following such a course in effect amounts to amending the Rules by a Government order and ignoring the mandate of Article 309 of the Constitution.
31. In the above mentioned case as well, the issue was of classification of senior posts under the Punjab Civil Medical (State Service Class I) Rules, 1972. The Government by Notification of 1989 declared Class II service also to be class I service with a view to remove the anomalies and service rules were to be amended/issued separately. On a Challenge, the High Court held that there was no necessity for amending the rules to change the classification. When the matter was taken to the Apex Court, it was held that Government order, Notification or Circular cannot be a substitute of the statutory rules. Further, the Hon'ble Supreme Court in the case of Union of India and another Vs. V. Ramakrishnan and others, (2005) 8 SCC 394, has held as under :
"Valid rules made under proviso appended to Article 309 of the Constitution operate so long as the said rules are not repealed and replaced. The draft rules, therefore, could not form the basis for grant of promotion, when Rules to the contrary are holding the field. It can safely be assumed that the principle in Abraham Jacob, Vimal Kumari and Gujarat Kishan Mazdoor Panchayat that draft rules can be acted upon, will apply where there are no rules governing the matter and where recruitment is governed by departmental instructions or executive orders under Article 162 of the Constitution."
32. It is an undisputed legal position that the particular post in the cadre is always filled up and is governed by the specific recruitment rules. It is also not in dispute that the Chandigarh Rules of 1985 are applicable upto Class-II to IV as these Rules are framed by the Administrator under the power vested with him under Notification of 1992. In fact in respect of Class I post as well, the Chandigarh Administration wanted to follow 1985 rules and it is in that context that the issue was raised in this Tribunal in the case of M.P. Singh (supra) in which also it was held that there is no authorization to Administrator for framing recruitment rules in respect of class I Post (Group A) and as such those rules framed by Administrator were held to be not applicable to Class I Post. So long as Rules of 1985 are not amended, the post of AE cannot be held to be a Group A post merely by issuance of notification or administrative order that too not by the competent authority unless it is declared as Group A Posts in Chandigarh Regulations of 1985, by way of proper amendment which are otherwise applicable to Class II, III and IV post only. Therefore, in absence of its own rules for Class I (Group A), the U.T. Administration can follow Pb. Regulations of 1965 as rightly held in M.P. Singhs case.
33. Since no notification has been issued by the Administrator as per prescribed process and only administrative instructions were issued by the Secretary (Engineering) to adopt circular 30/2003, these instructions cannot be legally enforced to classify the Group B post to Group A or change the quota already prescribed for the post in dispute as the Administrator is also not vested with such power to frame Rules for class I (Group A) Posts. These powers are either vested with the Government of India or particular legal process has been prescribed to frame and amend the relevant Rules under proviso of Article 309 which is required to be followed and necessary amendment is to be made in the Regulations of 1985 by the competent authority. Moreover, no documentation is placed on record by the respondents fixing the inter-se seniority of A.Es and Draftsmen after the alleged clubbing of these posts in Group A for holding D.P.C. to consider the cases of the private respondents for promotion to the next higher post.
34. It would not be out of place to mention that the respondents have not shown any documentation to this Court and the same was not found in the original record produced by the official respondents to prove that either the Government of India has empowered the Administrator to frame Rules for Class I (Group A) post for the employees of Chandigarh Administration or any amendment in the Chandigarh Regulations of 1985 was carried out by the Administration under the Proviso of Art 309 of the Constitution of India. In absence of such documentation on record, the plea of the respondents to apply or to adopt Pb. Circulars or notifications or Pb. Regulations of 1965 for Group B post of U.T. employees cannot be accepted, once Chandigarh Administration has framed its own Rules in 1985 for the posts of these categories. It would be relevant to mention here that respondents have also made proposal in the DPC agenda to make necessary amendment in Chandigarh Regulations of 1985 in view of clubbing of these posts by PSEB vide its circular No.30/03 (R-4) as is noticed from the documents pertaining to charter of demands placed on record by the respondents. Thus, it is clear that the respondents were fully aware that unless amendment is made in the rules, aforesaid circular could not be adopted by the respondents.
35. The plea of the respondents that the applicants themselves admitted this fact that these two posts of AE and AEE have been clubbed together is also misconceived as mere submission of the applicant in this regard cannot change the legal position as discussed hereinabove. It is well settled law that prime question of law regarding construction of statutory rules can be agitated at any time even in appeal before the Honble Supreme Court. We are supported with the view taken by the Honble Apex Court in this regard in the case of State of Punjab & Others Vs. R.N. Bhatnagar & Another, JT 1998 (9) 7 (S.C) Para 11.
36. To come to this conclusion that amendment in the Rules or to adopt the Pb. Rules or notification, proper procedure has to be followed, we have taken judicial notice of the notification issued by the U.T. Administration for other Departments e.g. notification dated 17.6.2002 issued by the Govt. of India, Ministry of Health and Family Welfare (Department of Health), relating to framing of Rules by the President under proviso to Article 309, known as the Government Medical College & Hospital Chandigarh (Principal & Professors of Hospital Group A Posts) Recruitment Rules, 2002.
37. Thus in view of the facts and circumstances of the case as analyzed hereinabove, the gist of the case as gathered by us, led us to the following conclusions while answering the points raised in this case : -
A. That the ratio of decision in M.P. Singh Wasals case is not applicable in the present case and the applicants are not governed by PSEB Service of Engineers (Electrical) Regulations, 1965 for the post of Asstt. Engineer as findings in this regard in that case relate to the group A post of S.E. However, observations made with regard to the competence of the Administrator to frame Rules for Group A posts are equally applicable in the present case. Hence it is held that once the Administrator is not empowered to frame rules for Group A posts, administrative instructions issued by the respondents to adopt Punjab Circulars, cannot substitute Chandigarh Regulations of 1985. Once the Administration has framed its own Rules for its Group B, C & D employees, they (latter) are held to be governed by Chandigarh Regulations of 1985 only.
B. Since, Chandigarh Administration has framed its own Regulations in 1985 for group B posts, without making amendment therein through proper legal procedure and that too by the competent authority, as discussed above, the classification of posts of A.E. cannot be changed from group B to group A on the basis of classification made under the orders/Notifications issued under pay-rules, as administrative instructions cannot over-ride the statutory provisions of law without proper amendment in the recruitment rules.
C. The action of the respondents to combine the posts of A.E & Asstt. Executive Engineer as Group A Posts is not sustainable as this has been done on the basis of circular issued by the P.S.E.B. (R-4) which has not been adopted by the Chandigarh Administration through appropriate legal process, therefore, such adoption cannot substitute the Chandigarh Regulations of 1985 for Group B posts wherein no such clubbing of theses posts has been provided. Therefore, the post of Asstt. Engineer (Electricity) would continue to be a Group B post unless necessary amendments are made in the Chandigarh Regulations of 1985 by the competent authority in view of the law laid down by the Honble Apex Court in the case of Union of India and another Vs. V. Ramakrishnan and others, (2005) 8 SCC 394 (Supra). Thus, such decision based on administrative instructions is held to be de-hors the Regulations of 1985 and is held to be void ab initio. Consequently, further action of the respondents to the extent of holding the DPC for promotion to the post in question by clubbing together the posts of A.Es & A.E.Es. is also held to be not sustainable and is hereby quashed and set aside.
38. In view of the conceded factual scenario that certain identically placed employees have already been given benefits of promotion on the basis of the academic qualification which is under adjudication, we would leave it to the competent authority to consider the feasibility / advisability of considering the applicants and other eligibles for the grant of said benefits of promotion to the post of A.E. while taking into consideration the relatable follow-up of the order in LPA. However, it is made clear that promotions already made to the post of A.E. before filing of this O.A. be not unsettled / disturbed.
39. In terms of the observations and directions as above, the points raised in the present case are answered accordingly and the O.A. stands disposed of on merits also with no order as to costs.
(MRS.SHYAMA DOGRA) MEMBER (J) (JUSTICE S.D. ANAND) MEMBER (J) (MRS.PROMILLA ISSAR) MEMBER (A) Place: Chandigarh.
Dated: 7th September, 2012 HC*
- 1 -
(O.A.NO.237-CH-2012