CHANDIGARH ADMINISTRATION ETC. ETC.versusK.K. JERATH

           CHANDIGARH ADMINISTRATION ETC. ETC.                                  A
                            v.
                      K.K. JERATH

                          SEPTEMBER Z7, 1994

                  [R.M. SAHA! AND N.P. SINGH, JJ.)                               B

      Seivice Law :

     Punjab Seivice of Engineers, Class /., P. W.D. (Buildings & Roads
Branch) Rules, 1960:                                                             C

       Rules 2, 3, 5, 9 & J()-f'ost of Chief Engineer under the Union Territory
of Chandigarh-Filling up of-Superintending Engineer from Electrica~
Mechanical, Housin15Whether eligible to be considereli-Or Superintending
Engineer (Civil) alone is eligible-Held : Superintending Engineer from all
disciplines eligible subject to suitability-Filling up of the post by transfer on D
deputation of a Superintending Engineer from Punjab-When could be
resorted ta-Procedure to be followed-Laid down-Ruling to be prospective
in respect of State of Punjab.

     The respondent, a graduate in Electrical Engineering was recruited          E
as Assistant Engineer in the service of the Union Territory of Chandigarh
through Union Public Service Commission in 1968. He was promoted as
Executive Engineer in 1976 and confirmed as such in 1985. He was further
promoted as Superintending Engineer in 1987.

       The post of Chief Engineer and Secretary, Chandigarh Administra· F
lion fall vacant in 1990 and the appellant wrote to the Punjab Government
to send a panel of eligible candidates for filling up the post. A panel was
sent, but none in the panel was found suitable. When a similar request was
made again, the respondent filed a claim petition before the Central
Administrative Tribunal, and the Tribunal passed an order on 8.6.90 G
directing the appellant to consider the respondent and other eligible
Superintending Engineers in the Union Territory cadre for the post of
Chief Engineer In accordance with Rules. In pursuance of this direction,
a Committee was constituted which gave its opinion that none of the Union
Territory Superintending Engineers was elegible for promotion as Chief
Engineer. Bringing this to the notice of the Tribunal, the appellant moved . H
                                     35
    36                    SUPREME COURT REPORTS (1994] SUPP. 4 S.C.R.

A an application for permission to appoint on temporary basis an Engineer
    on deputation from outside. The respondent resisted the move claiming
    that the constitlltion of the Committee was illegal and in any case the
    Committee was not justified in rejecting his claim as he had completed
    three years of service as Superintending Engineer and was thus eligible for
    being considered. Tribunal passed an order directing the appellant
B   to consider the respondent for the post of Chief Engineer, subject
    to suitability. This order was challenged by the appellant before this
    Court. The Tribunal was directed to dispose of the application by 30th
    April, 1991.

c         The Tribunal decided the application holding that the services of
    Engineers in the Buildings & Roads Department of the Union Territory of
    Chandigarh and their promotion is regulated by the Rules; and that the
    respondent being a member of the service could not be excluded from
    consideration on the plea that he belonged to the Electrical Wing. The
    Tribunal, therefore, quashed the appointment of the deputationist and
D   directed the fresh constitution of Departmental Promotion Committee. It
    also directed that in case no one suitable was available from Chandigarh
    Administration, then only the appellant could appoint a suitable person
    on deputation purely as on ad-hoc arrangement with a clear provision that
    the moment the L'nion Territory cadre Superintending Engineer becomes
E available for promotion to the post, his claim would be duly considered
    for promotion. Against the said order, the Chandigarh Administration
    preferred the present appeal. The Special Leave Petition has been filed by
    the State Government.

          Dismissing the appeal and the Special Leave Petition, this Court
F
         HELD : 1. Since till now no rules have been framed by the appellant
    and the draft rules are still awaiting approval, the appointment and
    promotion to the post of Chief Engineer in the Union Territory of Chan-
    digarh is undisputedly governed by the Punjab Service of Engineers Class
G   I P.W.D. (Buildings & Roads Branch) Rules, 1960. [42-C]

          2.1. To say that the post of Chief Engineer is a post in the "ing or
    cadre of Civil Engineer, \\ ould not be correct. The Engineer in the Electri-
                              1



    cal or ~lechanical wing is as much a n1ember of the service as a Civil
    Engineer. Therefore, when the Rules provide that the Superintending
H   Engineer "·ho has put in three years of sen·icc is eligible to be considered
                 CHANDIGARHADMN. v. K.K.JERATH                           37

for promotion to the post of Chief Engineer then in the absence of any rule A
to the contrary it has to be held that the field of eligibility is not confined
to Superintending Engineer (Civil) only, but it extends and includes Su-
perintending Engineer from other branches as well. [43-G, H, 44-A]

      2.2. The definition of 'Chief Engineer' shows that he is Chief En-
gineer, Buildings and Road Branch. This branch comprises not only of           B
Civil Engineer but Electrical and Mechanical as well. To argue, therefore,
that the post of Chief Engineer is in the cadre of Civil Engineers would
not be in consonanace with the Rules. [46-B]

      23. It may be true that due to non-existence of post of Superintend-     C
ing Engineer in one branch, there may be senior Executive Engineers who
due to paucity of promotional avenues may be stagnating, but that cannot
furnish any basis for excluding that Superintending Enb>ineer who has
reached the promotional avenue in his own cadre. [46-F]

      3. The Office Memorandum issued on 4th November 1966 on the              D
subject, 'transaction of business in the Ministries of the Govt. of India in
relation to matters concerning the Union Territory of Chandigarh
provided for creation and continuance of certain posts existing in the
Union Territory of Chandigarh from 1st November, 1966. When the order
was issued the Union Territory of Chandigarh had been constituted and,         E
therefore, it was necessary to provide for the filling up of the posts which
were in existence or were likely to arise in future from officers of Punjab
and Chandigarh cadre. But it could not be construed as precluding the
officers who have been appointed by the Chandigarh Administration in the
meantime in different posts as it had to be filled by officers from Punjab
and Chandigarh. That could not have been the purpose and objective of F
the Office Memorandum. Fnrther the word 'mainly' used in the Memoran-
dum has not be construed by this Court to mean 'exclusively'. Therefore,
if an officer who is eligible for being appointed to a post in Chandigarh
cannot be excluded on the basis of the said Oftice Memorandum from the
zone of eligibility. (47-B, E, F]                                          G

     Swaran Lata v. Union of India & Ors., (1979] 2 SCR 953, referred to.

       4. It is true that rule 10 permits appointment by transfer. But
sub-clause (6) of rule 5 itself provides that appointment by transfer of an
otlicer \\-'ill normally be made to the rank of Executive Engineer except that H
    38                    SUPREME COURT REPORTS [1994] SUPP. 4 S.C.R.

A specialists may be recruited to any rank. A reasonable reading of the rule
    would indicate that the appointing authority should not resort to appoint
    an officer above the rank of Executive Engineer by transfer. The appoint-
    ment of specialist is no doubt permissible but that should be resorted to
    only if the officers in the State are not available. The Rules cannot be
    understood to confer an unfettered discretion in the State Government or
B   the appointing authority who may appoint any person from outside to the
    exclusion of a person from the cadre unless it is found that the person
    concerned is not eligible and if eligible then not suitable. The appointment
    of specialist as provided in the Rule has to be resorted to in those
    exceptional circumstances where the officer brought on transfer is excep-
c   tional and the like of whom cannot be found in the State itself. If the word
    'specialist' is understood as empowering the State to appoint anyone it
    considers appropriate it may lead to arbitrariness. It has, therefore, to be
    limited to those exceptional cases where public interest demands a person
    from outside should be appointed as he is of extraordinary merit and a
D   specialist in the branch in which he is being appointed and no officer from
    the State is available to be appointed. [48,A to E)

          5. Prior to reorganisation of State of Punjab in 1966 there might have
    been no post of Superintending Engineer (Electrical) or (Mechanical) but
    that does not mean that even after 1966 when such posts were created, the
E   incumbents of that post could be excluded from eligibility to the post of
    Chief Engineer only because no such post existed in 1966. Nor can it be
    said that since in 1992 the different post of Engineers carried the suffix as
    Electrical or Horticulture, the inference arises in law that the post of Chief
    Engineer was a cadre post of Civil Engineers. [49-E, F)
F
         6. All the four Chief Engineers working in the State of Punjab are
  from the Civil side. The apprehension of those Chief Engineers was that
  if the construction as given by the Tribunal is upheld a litigation may start
  which may result in reversion of the occupants of that office. It is clarified
G that the decision that is being rendered is in respect of the post of the Chief
  Engineer in Chandigarh. Further so far as the State of Punjab is con-
  cerned the construction that is being placed on these Rules shall be
    prospective, as it has not been brought to the notice that anyone from the
    Pubjab Service challenged the appointment of Chief Engineer from the
H Civil Branch. [50-F to HJ
          CHANDIGARH ADMN. v. K.K. JERAIB [R.M. SAHA!, J.]               39

        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6312 of A
1994.

      From the Judgment and Order dated 6.5.91 ol the Central Ad-
ministrative Tribunal, Chandigarh in Regn. No. 0.A. 639-CH of 1990.

                                   WITH                                       B

        Special Leave Petition (C) No. 16833 of 1994.

      From the Judgment and Order dated 6.5.91 of the Central Ad-
ministrative Tribunal, Chandigarh in O.A. No. 639-CH of 1990.
                                                                              c
        K. Madhava Reddy and Ms. Kamini Jaiswal for the Appellant.

      G.K. Bansal, for the Petitioner in SLP (C) No. 16833/94 Jagdish
Singh Khehar and Ahok Mahajan for the Intervenor.

      Arnn Jaitley, Ranbir Yadav, GK. Bansal, Rajesh and Naresh Bakshi        D
for the Respondents.

        Ms. Kamini Jaiswal for the Respondent in SLP (C) No. 16833/94.

        The Judgment of the Court was delivered by
                                                                              E
       R.M. SAHA!, J. Who is eligible to be considered for the post of Chief
Engineer in Buildings & Roads Department in the Union Territory of
Chandigarh - a Superintending Engineer from any of the disciplines -
electrical, mechanical, housing - or a Superintending Engineer (Civil)
alone? Do the Punjab Service of Engineers, Class I, P.W.D. (Buildings & F
Roads Branch) Rules, 1960 (for short 'the Rules') contemplate .that when-
ever a vacancy of a Chief Engineer arises in the Union Territory of
Chandigarh it is always to be filled by transfer or deputation from a
Superintending Engineer of Punjab? These interesting questions arise in
this appeal filed, primarily, by no one else than Chandigarh Administration G
itself against the order of Central Administrative Tribunal, Chandigarh
Bench, Chandigarh directing that the respondent, a Superintending En-
gineer (Electrical} of Chandigarh was eligible to be considered for promo-
tion to the post of Chief Engineer. The entire thrust of the attack on the
direction was concentrated on the prevalent practice of appointing officers
in different services in Chandigarh from Punjab Service. So much so that H
    40                    SUPREME COURT REPORTS [1994J SUPP. 4 S.C.R.

A the State of Punjab which has filed an application seeking leave to appeal
    against the impugned order has claimed that when recruitments were made
    in tho State services it took into consideration not only the vacancies which
    were existing or were likely to arise in its own State but a larger number
    of officers were appointed in expectation that they shall be transferred to
    the Union Territory of Chandigarh. Whatever be the merit of such a claim
B   by the State of Pubjab and irrespective of the practice which is being
    observed since the Union Territory of Chandigarh was created, the cor-
    rectness of the order passed by the Tribunal depends not on such claim
    advanced either by State of Pubjab or the State of Haryana but on the rules
    which are applicable and which provide for eligibility of a candidate for
c   being considered for the post of Chief Engineer.

           The respondent Shri K.K. Jerath, a graduate in Electrical Engineer-
    ing was recruited as Assistant Engineer in the service of the Union Ter-
    ritory of Candigarh through the Union Public Service Commission on 26th
D   June 1968. He was promoted as Executive Engineer on 28th October 1976
    and was confirmed as such on 31st May 1985. He was granted selection
    grade with effect from 28th October 1983. He was promoted to the post
    of Superintending Engineer on 17th February 1987 by order dated 11th
    May 1987 on recommendation of the Departmental Promotion Co.mmittee
    Class I as per letter dated 22nd April 1987 from the Union Public Service
E   Commission, New Delhi. He completed his period of probation for one
    year on 16th February 1988. In May 1990 the post of Chief Engineer and
    Secretary, Chandigarh Administration fell vacant as the then occupant was
    appointed as Chairman, Chandigarh Housing Board. In the same month
    the appellant wrote to the Punjab Government to send a panel of eligible
F   candidates to be promoted to the post of Chief Engineer. A panel was sent.
    But no one was found suitable. When similar request was made again the
    respondent, on coming to know of it, filed a claim petition before the
    Central Administrative Tribunal, Chandigarh in which an interim order was
    granted restraining the appellant from appointing Chief Engineer on
G   deputation till 8th June 1990. The application for interim order was taken
    up finally on 8th June, 1990 and after hearing both the parties the Tribunal
    directed that the respondent and other eligible Superinteding Engineers in
    the Union Territory cadre for the post of Chief Engineer be considered in
    accordance with the Rules. In pursuance of this direction a Committee
    consisting of the Home Secretary, the Finance Secretary, the Chief En-
H   gineer and Secretary and Law Secretary met on 26th June 1990 and it was
             CHANDIGARH ADMN. v. K.K. JERATll [R.M. SAHAI, J.J                 41

     of opinion that none of the Union Territory cadre Superintending En-            A
     gineers were eligible for promotion as Chief Engineer. On 23rd Oc-
     tober1990 the State moved an application before the Tribunal bringing it
     to its notice that no Superintending Engineer from the Union Territory
     having been found to be eligible it may be permitted to appoint on a
     temporary basis an Engineer on deputation from outside. This was resisted
                                                                                     B
     by the respondent who claimed that the constitution of Committee was
     illegal and in any case the Committee was not justified in rejecting the
     claim of the respondent as he had completed three years of service as
.. , Superintending Engineer and was thus eligible for being considered. The
     Tribunal, therefore, passed an order directing the appellant to consider the
     respondent for the post of Chief Engineer, subject to suitablity, considering   C
     him to be eligible for the post. This order was challenged by the appellant
     in this Court and the petition was dispor.ed of on 4th March, 1991 by
     directing the Tribunal to dispose of the application pending before it on
     merits by 30th April 1991. Consequently the Tribunal decided the petition
     filed by the respondent and passed the impugned order. It held that the         D
     services of the engineers in the Buildings & Roads Department of the
     Union Territory of Chandigarh and their promotion lo the post of Chief
     Engineer is regulated by the Rules. It found that the respondent being a
     member of the service as provided in the Rules he could not be excluded
     from consideration for the post of Chief Engineer on the plea that he
     belonged to the Electrical Wing. It was also held that the post of Chief        E
     Engineer was a post of merit and, therefore, no member of the service
     could be promoted to it nor any one could be appointed to it by transfer
      unless he satisfied the basic criteria of merit. The Tribunal was of opinion
     that there was no clear indication in the Rules if the post of Chief Engineer
     could be filled by bringing an officer from outside on deputation. On merits    F
     the Tribunal was of the opinion that the respondent was arbitrarily ex-
     cluded from eligibility. Further the appellant attempted to appoint another
     person from Punjab Service contrary to the provisions of the Rules and to
     over-reach the order passed by the Tribunal. It also held that despite the
     direction issued by the Tribunal the appellant excluded the respondent
     from consideration by holding him unsuitable without following proper           G
     procedure for consideration and assigning any valid reason for the same.
     The Tribunal consequently quashed the appointment of a deputationist
     from Punjab Service as being violative of statutory rules and directed that
     fresh Departmental Promotion Committee may be constituted which may
                                                                                     H
    42                            SUPREME COURT REPORTS [1994] SUPP. 4 S.C.R.

A consider the eligible candidates in accordance with the provisions of
    statutory rules and the policy instructions on the subject issued by the
    Chandigarh Administration from time to time. The Tribunal further
    directed that in case it was found that no one suitable was available from
    Chandigarh Administration then only the appellant shall appoint the Chief
    Engineer by selecting a suitable person on deputation purely as an ad-hoc
B   arrangement with a clear provision that the moment the onion Territory
    cadre Superintending Engineer becomes available for promotion to the
    post his claim would be duly considered for promotion to that post.

          Since till now no rules have been framed by the appellant and the
c   draft rules are still awaiting approval the appointment and promotion to
    the post of Chief Engineer in the Union Territory of Chandigarh is un-
    disputedly governed by the Rules. The 'service' under rule 3 comprises of
    Assistant Executive Engineers, Executive Engineers, Superintending En-
    gineers and Chief Engineers. Method of recruitment to the service is
    provided by rule 5. It contemplates appointnient by direct recruitment, by
D   transfer of an officer already in the service of a State Government or the
    Union Territory and by promotion from class-II service. Sub-rule (4) of
    rule 5 provides that 'all first direct appointments to the Service shall be to
    the posts of Assistant Executive Engineers' except in exceptional cases
    where an appointment for reasons to be recorded may be made directly to
E   the post of Executive Engineer. All other posts, i.e., of Executive Engineer,
    Superintending Engineer and Chief Engineer are promotional posts. Rule
    9 provides that 'subject to the provisions of sub-rules (2) and (3), members
    of the Service shall be eligible for promotion to any of the posts in the
    Service, namely, Executive Engineers, Superintending Engineers and Chief
    Engineers'. It is thus clear that the post of Chief Engineer is primarily a
F   promotional post. The eligibility for being considered for appointment to
    the post of Chief Engineer is provided by clause (c) of sub-rule (3) of rule
    9 which reads as under :
             11
                  R.9. - Promotion with service.-
G
             (1) ...................................................

             (2) .................................................. .

             (3) A member of the service shall not be eligible for promotion to
H            the rank of -
              CHANDIGARH ADMN. v. K.K. JERATH [R.M. SAHA!, J.)                 43

             ( c) Chief Engineer, unless he has rendered three years service as A
             Superintending Engineer :

                 Provided that, if it appears to be necessary to promote an
             officer in public interest the Government may, for reasons to be
             recorded in writing either generally for a specified period or in B
             any individual case reduce the periods specified in clauses (a), (b) ·
             and ( c) in such extent as it may deem proper".

     There is no further indication in the rule whether the post of Chief
     Engineer shall be filled in by a Superintending Engineer (Civil,) (Mechani·
     cal) or (Electrical). Clause (4) of rule 2 defines a 'Chief Engineer' to mean   C
     'a Chief Enginer of Public Works Department, Buildings & Roads Branch
     and includes a post declared by Government as of equivalent
     responsibility'. A reading of this definition along with what is provided by
     rule 3 specifying the strength of service and the definition of Executive
     Engineer and Superintending Engineer make it abundantly clear that the          D
     Chief Engineer is at the apex of service which comprises of four layers.
     The Assistant Engineer is at the threshold. The next post in hierarchy is
     Executive Engineer who under sub-rule (9) of rule 2 means, 'an officer-in-
     charge of a division and includes an officer holding a post of equivalent
     responsibility'. Over him is the Superintending Engineer defined in sub-
     rule (13) of rule 2 to mean, 'an officer-in-charge of an area known as a E
     Circle or whose duties are of equivalent responsibility to the charge of a
     Circle'. The last promotional post under the Rules is from Superintending
     Engineer to Chief Engineer. It is further clear that the Rules contemplate
     three wings - civil, electrical and mechanical. Any officer appointed in any
     wing becomes a member of the service and under explanation under F
     sub-rule (1) of rule 9 he is liable to be promoted from one rank to another
     and such promotion is regarded as a promotion within the same cadre.
     Therefore, even through one officer may belong to one wing or the other,
     he continues to be a member of the service within meaning of sub-rule (14)
     of rule 2 which defines a servke to mean, 'the Punjab Service of Engineers G
·'   Class I, P.W.D. (Buildings and Roads Branch)'. To say, tb.erefore, that the
     post of Chief Engineer is a post in the wing or cadre of Civil Engineer,
     would not be correct. The engineer in the electrical or mechanical wing is
     as much a member of the service as a civil engineer. Therefore, when the
     Rules provide that the Superintending Engineer who has put in three years
     of service is eligible to be considered for promotion to the post of Chief H
    44                     SUPREME COURT REPORTS [1994] SUPP. 4 S.C.R.

A   Engineer then in absence of any rule to the contrary it has to be held that
    the field of eligibility is not confined to Superintending Engineer (Civil)
    only, but it extends and includes Superintending Engineer from other
    branches as well.

          What was vehemently argued, however, to assail the order of the
B Tribunal, was that since these Rules are for Buildings and Roads Branch,
    it is only a Superintending Engineering (Civil) who could be appointed lo
    the post of Chief Engineer. The learned counsel for the appellant and
    intervenors urged that the members of the Service under the Rules having
    been divided in three cadres, i.e., Civil, Electrical and Mechanical and the
C   post of Chief Engineer being a promotional post only for Civil Engineers,
    the Tribunal committed an error of law in directing that the respondent
    who is Superintending Engineer (Electrical) shall he deeemed to be
    eligible for it. The learned counsel submitted that a 'member of the Service'
    was eligible for promotion from one rank to another in his own cadre, i.e.,
D   from the rank of Assistant Executive Engineer to the rank of Executive
    Engineer and from Executive Engineer to Superintending Engineer. Ac-
    cording to him any person appointed as Assistant Engineer (Mechanical)
    or (Electrical) was appointed to the cadre of such Engineer, therefore, he
    could be promoted in the cadre only. Reliance was placed on rule 6 which
    prescribes qualification for recruitment to the Service. It was urged that
E
    since no person could be appointed to the Service unless he possessed one
    of the university degrees or other qualifications prescribed in Appendix B
    of the Rules unless the qualification was waived by the Government, it was
    apparent that a person appointed to a particular cadre on the strength of
    his qualification could be promoted within the cadre from one rank to the
F   other. In support of the submission, Note to Appendix B of rule 6 which
    reads as under was relied :

            "The candidates to be appointed for Civil posts shall be recruited
            with qualification in Civil Engineering, where as those recruited in
G           the Electrical Engineering Unit shall possess qualifications in
            Electrical Engineering. Candidates recruited from Mechanical
            charges will be required to possess degree in Mechanical En-
            gineering'1.

H   The learned counsel urged that every post in the Service is cl~ssified as


                       •
                                                /




             CHANDIGARH ADMN. v. K.K. JERATH [R.M. SAHA!, J.]              45

     Civil, Electrical or Mechanical. And since the post of the Chief Engineer A
     in the Engineering Department of the Chandigarh Administrntion
     belonged to the Civil Cadre, no other Superintending Engineer from any
.}   other branch or cadre could be con:;idered to be eligible for it. The
     submissions were attempted to be supported by the practice followed hy
     the Department and that a Superintending Engineer (Electical) or
                                                                                 B
     (Mechanical) was never promoted as Chief Engineer in Punjab. It was
     further urged that in fact even though there were senior Superintending
     Engineers (Electrical) or (Mechanical) in Punjab Service, yet all the four
     posts of Chief Engineers were occupied by Superintending Engineers
     (Civil) only. It was also submitted that the Department has been following
     this practice as a Civil Engineer has to undergo and study the course for  c
     electrical and mechanical whereas it was not vice-ve!Ja. The learned coun-
     sel submitted that the Department has understood and construed these
     Rules in view of the Note to Appendix B of rule 6 so that a person
     appointed in the Cadre of Civil, Electrical, Mechanical.or Building Depart-
     ment is entitled to move up on promotional ladder in his own cadre so D
     much so that if a cadre closed at the level of Executive Engineer or
     Superintending Engineer, then no engineer of one cadre could claim
     promotion to the other cadre. Therefore, any Superintending Engineer in
     the Cadre o~ Electrical or Mechanical could not claim to be appointed "'
     Chief Engineer in Buildings and Roads Departments as it was a post for
     promotion of Civil Engineer only.                                          E

           Despite strenuous effort, none of the learned counsel could make
     good their submissions that the post of Chief Engineer was a promotional
     post for Superintending Engineer {Civil) only. No rule supports the sub- ·
     mission that the post of Chief Engineer is a cadre post of civil engineer. f
     Even otherwise, the submission does not bear close scrutiny. An engineer
     is no doubt appointed in different branches on the qualifications held by
     him. For instance, a graduate in civil engineering may not be eligible for
     being appointed as Assistant Executive Engineer {Mechanical) or {Electri-
     cal). These are different branches and the bifurcation is ma~e not only in G
     the service but the education itself is imparted for all these branches
     separately. That is why the Rules prescribe qualifications for each post by
     providing that a graduate or diploma hoider shall be appointed in the
     branch for which he was qualified. But that does not help the appellant as
     even assuming that the Rules contemplate three different Cadres, namely,
     Civil, Electrical and Mechanical, and each Cadre may have promotional H
    46                    SUPREME COURT REPORTS [1994) SUPP. 4 S.C.R.

A avenue depending on the strength of the Cadre which clearly depends on
    the workload etc. the question still is whether the post of Chief Engineer
    is a cadre post for Civil Engineer. It does not appear to be so from the
    Rules. The definition of 'Chief Engineer' shows that he is Chief Engineer,
    Buildings & Roads Branch. This branch comprises not only of civil en-
    gineer but electrical and mechanical as well. To argue, therefore, that the
B
    post of Chief Engineer is in the cadre of civil would not be'.j11 consonance
    with the Rules.

          Nor is there any merit in the submission that there being no post for
  Electrical Superintending Engineer in Chandigarh, till recently, it was
C indicative that the post of Chief Engineer was a post to be filled from
  Superintending Engineer (Civil). It is common knowledge that the
  workload in civil branch is much more in P.W.D. than electrical and
  mechanical and, therefore, it may be that in the Cadres of Electrical and
  Mechanical, the promotional ladder may not .be as extensive and high as
D civil. for instance, there may be 100 engineers i~ civil, 10 in electrical and
  one in mechanicai. Consequently, there may be more posts of superintend-
  ing engineer in civil than electrical and may be none in mechanical. And,
  therefore, whenever occasion arose in past a Superintending Engineer
  (Civil) was promoted. But once a post is created by the Government in
  mechanical or electrical then there is no indication in the Rules nor is there
E any rationale for excluding a Superintending Engineer appointed in the
  Electrical or Mechanical Branch from the field of eligibility for the post of
  Chief Engineer. It may be true that due to non-existence of post of
  Superintending Engineer in one branch, there may be senior Executive
  Engineers who due to paucity of promotional avenues may be stagnating,
F but that cannot furnish any basis for excluding that Superintending En-
  gineer who has reached the promotional avenue in his own cadre. The
  illustration given above may be examined again. If there is only one post
  of execntive engineer (mechanical) and no post of superintending engineer
  then can it be said that in the other branch, namely, electrical where there
G are 10 posts of executive engineers and one post of superintending engineer
  no promotion can be granted from .the post of executive engineer to              •
  superintending engineer as the senior Executive Engineers in Mechanical
  Branch were stagnating as Executive Engineer only. And if the answer is
  in negative as it undoubtedly appears to be then it is equally fallacious to
  argue that a Superintending Engineer of the Electrical Department cannot
H be eligible for being approinted to the post of Chief Engineer only because
         CHANDIGARH ADMN. v. K.K. JERATH [R.M. SAHAI, J.)               47

he might be junior in service to an Executive Engineer in the Mechanical A
Branch who might be stagnating due to absence of any post of Superin-
tending Engineer.

       Reliance was placed by the learned counsel appearing for the State
of Pubjab on Office Memorandum issued on 4th November 1966 on the B
subject, 'iransaction of business in. the Ministries of the Govermnent of
India in relation to matters concerning the Union Territory of Chandigarh.'
It provided for creation and continuance of certain posts existing in the
Union Territory of Chandigarh from 1st November, 1966. It further
provided that except for the Department of Printing and Stationery, Ar-
chitecture and Post Graduate Institute of Medical Education and Re- C
search, Chandigarh the post in the other departments under the control of
the Chief Commissioner will be filled up by deputation mainly from Pun-
jab/Haryana State cadres. The learned counsel urged that this indicated
that the appellant in filling the post of Chief Engineer from an eligible
person from Punjab was acting in accordance with the Office Memoran- D
dum issued by the Union of India. The learned counsel emphasised the
word 'mainly' used in the Memorandum and its construction by this Court
in Swaran Lata v. Union of India & Ors., [1979] 2 SCR 953. Suffice it to say
that when the order was issued the Union Territory of Chandigarh had
been constitnted and, therefore, it was necessary to povide for the filling
up of the posts which were in existence or were likely to arise in future E
from officers of Punjab and Chandigarh cadre. Bnt it. could not be con-
strued as precluding the officers who have been appointed by the Chan-
digarh Administration in the meantime in different posts as it had to be
filled by officers from Punjab and Chandigarh. That could not have been
the purpose and objective of the Office Memorandum nor it can reasonably F
be construed in the manner as argued by the learned counsel. Further the
word 'mainly' used in the Memorandum has not been construed by this
Court to mean 'exclusively'. Therefore, if an officer who is eligible for being
appointed to a. post in Chandigarh cannot be excluded on the basis of this
office Memorandum from the zone of eligibility.
                                                                             G
     Much was attempted to be made out from rule 10 which permits
appointment by transfer in special circumstances with the approval of the.
commission to the service and the provisions in the Rules permitting
appointment by transfer and it was urged that the Rules themselves con-
template that an officer of the Punjab Service could be appointed by the     H
    48                     SUPREME COURT REPORTS (1994) SUPP. 4 S.C.R.

A administration to the exclusion of any person in Chandigarh if the State
    was of opinion that it was in the interest of service. It is ture that the Rules
    do permit appointment by transfer. But sub-clause (6) of rule 5 itself
    provides that appointment by transfer of an officer will normally be made
                                                                                       ..
    to the rank of Executive Engineer execpt that specialists may be recruited
    to any rank. A reasonable reading of the rule would indicate that the
B   appointing authority should not resort to appoint an officer above the rank
    of Executive Engineer by transfer. The appointment of specialist is no
    doubt permissible but that should be resorted to only if the officers in the
    State are not available. The Rules cannot be understood to confer an
    unfettered discretion in the State Government or the appointing authority
C   who may appoint any person from outside to the exclusion of a person from
    the cadre unless it is found that the person concerned is not eligible and
    if eligible then not suitable. The appointment of specialist as provided in
    the Rules has to be resorted to in those exceptional circumstances where
    the officer brought on transfer is exceptional and the like of whom cannot
D   be found in the State itself. If the word 'specialist' is understood as
    empowering the State to appoint anyone it considers appropriate it may
    lead to arbitrariness. It has, therefore, to be limited to those exceptional
    cases where public interest demands that a person from outside should be
    appointed as he is of extraordinary merit and a specialist in the branch on
    which he is being appointed and no officer from the State is available to
E   be appointed.

          In the written submissions filed on behalf of the appellant an attempt
    has been made to suggest that the present set up of Engineering Depart-
    ment of Chandigarh Administration is a continuation of the Capital
    Projects set up existing prior to reorganisation of the State of Punjab in
F   1966. It is stated that Capital Project reorganisation was created mainly by
    taking engineers from Punjab P.W.D., Buildings & Roads Brach, and the
    posts were created commensurate with the job requirements. A copy of the
    Order of Punjab Government dated 9.3.1953 indicated the sanction of the
    post is appended which shows that the posts in the Capital Project were
G   sanctioned as follows :

             Chief Enginer                                1


             Superintendent Engineer                      1
H            Planning Circle
         CHANDIGARHADMN. v. K.K. JERATH [R.M. SAHAI, J.]                   49

         Superintendent Engineer                     1                           A
         Construction Circle

         Executive Engineer                          3
         Construction Division

         Executive Engineer                          1                           B
         Materials Division

         Executive Engineer                          1
         Electircal & Machanical Division

After the reorganisation continuation of temporary Group 'A' posts are           c
stated to have been. sanctioned by the Government of India, Ministry of
Urban Development from time to time. Copy of one such sanction for the
year 1991-92 has been attached. According to appellant, from this sanction
it was clear that except for the post of Superintendending Engineer
(Electrical) and Executive Engineer (Horticuture), all other posts have no       D
suffix added and are civil posts. From these, it has· been attempted to
support the argument advanced.earlier that it was only the Superintending
Engineer (Civil) who was eligible to be considered for the post of Chief
Engineer. Suffice it to say that prior to reorganisation of State of Punjab
in 1966 there might have been no post of Superintending Engineer (Electri-       E
cal) or (Mechanical) but that cannot furnish basis for submitting that even
after 1966 when such posts were created, the incumbents of that post could
be excluded from eligibility to the post of Chief Engineer only because no
such post existed in 1966. Nor is there any merit in the submission that
since in 1992 the different post of engineers carried the suffix as Electrical
or Horticulture, therefore, the inference arises in law that the post of Chief   F
Engineer was a cadre post of Civil Engineers.

      In Chandigarh the service has four branches - Civil, Electrical and
Public Health and Roads and Horticulture. It has been found by the
Tribunal that in past a Superintending Engineer, Public Health Wing was G
appointed as Chief Engineer. The effort on part of the intervenors in the
written submission to dilute it when no objection was raised before
Tribunal nor the appellant challe11ged it in the the petition filed in the
Court carmot be appreciated. However, on the construction of the rule, the
Government in appointing a Superintending Engineer of Public Health as
Chief Engineer did not commit any error of law. In the written sul;Jmissions H
    50                     SUPREME COURT REPORTS [1994] SUPP. 4 S.C.R.

A filed on behalf of the appellant, the appointment of Shri Resham Singh has
    been justified on the qualifications held by him which, according to appel-
    lant, was only specialisation in civil engineering. For the reasons which have
    already been mentioned earlier, it is not necessary to enter into this
    controversy as to whether a Superintending Engineer who held the
    qualification as were held by Shri Resham Singh could be considered to
B   be a Specialist in civil engineering and the thus eligible for the post of Chief
    Engineer.

           Before concluding it is necessary to point out that apart from the
    appellant the State of Punjab also filed a Special Leave Petition and an
C   application for permission to file the S.L.P. Another application was filed
    by the intervenor who in the meantime claims to have become eligible for
    being appointed as Chief Engineer. Even though the application of the
    intervenor was not allowed at the time of hearing nor it appears necessary
    to allow it yet the learned counsel appearing for the parties were heard at
D   length to ensure that no injustice is done to anyone. The intervenor also
    filed a written argument and attempted to bring on record certain facts
    which have been vehemently opposed in the written arguments filed by the
    respondent both on merits and for inaccuracy of statement of facts. S"mce
    the application for intervention is not being allowed and the appeal is being
E   decided as a matter of law on construction of rule it does not appear
    necessary to say any further. The intervenor's Application Nos. I.A. No. 3/
    1991 is rejected. The application filed by the State of Punjab for interven-
    tion is also rejected. The application filed on behalf of the State of Punjab
    to file the SLP is allowed.

F
          In this connection it is necessary to mention that during hearing it
    transpired that all the four Chief Engineers working in the State of Punjab
    are from the civil side. The apprehension of those Chief Engineers ex-
    pressed through their counsel and even by personal appearance by one of
G   the Chief Engineers was that, if the construction as given by the Tribunal
    is upheld a litigation may start which may result in reversion of the
    occupants . of that office. It is clarified that the decision that is being
    rendered is in respect of the post of the Chief Engineer in Chandigarh.
    Further, so far as the State of Punjab is concerned the construction that is
    being placed on these Rules shall be prospective, as it has not been brought
H   to the .notice that anyone from the Punjab S~rvice challenged the appoint-
               CHANDIGARH ADMN. v. K.K.JERATII (R.M. SAHAl,J.)                  51
      ment of Chief Engineer from the Civil Branch.                                   A
            In the result, this appeal fails and is dismissed. The SLP filed by the
      State of Punjab is also dismissed. The appellant is directed to open the
·->   sealed envelope containing the proceedings of D .P.C. held in the meantime
      in pursuance of direction of this Court and proceed in accordance·with law
      as directed by the Tribunal. Time to comply with Tribunal's order is            B
      extended by one month from today.

                                                   Appeal and petition dismissed.