DDA GRADUATE ENGINEERS' ASSOCIATION AND ORS.versusLIEUTENANT GOVERNOR OF DELHI AND ORS.

A      DDA GRADUATE ENGINEERS' ASSOCIATION AND ORS.
                           v.
          LIEUTENANT GOVERNOR OF DELHI AND ORS.

                               SEPTEMBER 9, 1992

B                     [P.B. SAWANT AND G.N. RAY, JJ.]

          Service Law:

          Promotiolt-Engineers-Delhi Development Authority Resolution
C   No.105 dated 16.6.1971--lnterpretation of-Diploma holder Assistant En-
    ginee,-.ffeld eligible to be promoted as Executive Engineer.

           Central Engineer's Service Group 'A' Recruitment Rules 1954: Ss. 3, 4,
    13, 21, 23.

D         CPWD Manual Vol. I ( 1970 Edn. ): S. 7. Paragrah 13. Executive instruc-
    tions-Amendment of rules by- Whether pennissible.

          Words and Phrases:

          'Rules of promotion'--lnterpretation of
E
          The appellants-Graduate Assistant Engineers in the Delhi Develop-
    ment Authority and their Association-filed a writ petition before the High
    Court challenging the promotion of the respondents, diplomaholder As-
    sistant Engineers, to the post of Executive Engineer. The writ petition was
F   dismissed. The appellants filed the appeal by special leave.

         The claims of both, the appellants as well as the respondents, were
    based on Resolution No. 105 dated 16.6.1971 passed by the Delhi Develop-
    ment Authority to the effect that "the same rules of promotion should be
G   made applicable in the D.D.A. as are in vogue in the Central P.W.D.".

           It was contended on behalf of the respondents that according to the
    Resolution No. 105 of 1971, the DDA made applicable the practice
    prevalent in CPWD based on paragraph 13 of s.7 of CPWD Manual Vol.I
    whereunder a diploma holder Assistant Engineer of 10 years service was
H   eligible for promotion to the post of Executive Engineer.
                                         474
               D.D.A ENG. ASSCN. v. LT. GOVERNOR                        475

       The appellants contended that by the Resolution the DDA applied A
only the Rules and not the instructions contained in the CPWD Manual
and in view of ss.3, 4, 13 and 23 of the Central Engineering Service Group
'A' Recruitment Rules 1954 no diploma-holder Assistant Engineer was
eligible to be promoted as Executive Engineer; and that paragraph 13 of
the Manual cannot override the 1954 Rules.
                                                                               B
      Dismissing the appeal, this Court,

       HELD: 1.1. By Resolution No. 105 dated 16.6.1971 the Delhi
Development Authority wanted to enforce the same "conditions" of
eligibility as were applicable in the CPWD. While, however, pasing the C
resolution, instead of the word 11conditions" the word "rules" of promotion
was used. The procedure given in paragraph 13 of the CPWD Manual was
applicable for promotion to the post of Executive Engineer. Hence what
the DDA had in mind was not only the statutory rules but also the
procedure for pormotion given in the CPWD Manual. Accordingly, from
the date of the Resolution onwards both the diploma holder Assistant D
Engineers with 10 years' service experience and graduate Asstt. Engineers
with 8 years' service experience have been promoted to the post of Execu-
tive Engineer; and except the instant litigation, the graduate Asstt. En·
gineers never questioned the eligibility of promotion of diploma holder
Assistant Engineers based on the Resolution. [p. 481 D-G]                      E

      1.2. Whatever may be the validity of the instructions contained in the
CPWD Manual as against the Central Engineering Service Group 'A'
Recruitment Rules, 1954, which may or may not be open for questioning
by the CPWD Engineers, as far as the Engineers in DDA are concerned, it
is not open for them to challenge the same for the simple reason that what     F
was accepted as the procedure for promotion by the DDA by its 1971
Resolution was the procedure for promotion as contained in CPWD
Manual which was admittedly applicable to the promotion to the post of
Executive Engineers, in CPWD. [p. 482 D-F]
                                                                               G
      1.3. If the rules were not made under Article 309 of the Constitution,
there was nothing wrong in amending the same by executive instructions,
since the main rules themselves could be no better than executive instruc-
tions. [p. 482 G-H]

      (1) Roop Chand Adlakhu & Ors. v. Delhi Development Authority &           H
    476                    Slll'Rl'ME COURT REPORTSjl992J SUPP. I S.C.R.

A   Ors.. [1989] Supp. I sec 116, distinguished.

          (2) J.N. Goel & Ors. v. Union of India & Ors., O.A. No. 704 of 1988
    on the file of Central Administrative Tribunal, Principal Bench, New
    Delhi, decided on 30.4.1990, referred to.

8            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3757 of
    1992.

          From the Judgment and Order dated 14.5.91 of the Delhi High Court
    in Civil Writ Petition No. 1669 of 1990.

C            M.K. Ramamurthy, Shakeel Ahmed and R.S.M. Verma for the Appel-
    lants.

        S.C. Gupta, V.B. Saharya, B.K. Kaul, M. Gupta and Ashok K.
    Mahajan for the Respondents.
D            The Judgment 'of the Court was delivered by

             SAWANT, J. Leave granted.

           What is involved in this appeal is the interpretation of Resolution
    No. 105 of the respondent-Delhi Development Authority ('ODA' for short']
E
    passed on 16th June, 1971. The Relevant portion of the Resolution reads
    as follows:

                 "Resolved that the same rules of promotion should be
               made applicable in the D.D.A. as are in vogue in the
F              Central PWD and no consideration for private service
               would be allowed".

          2. The first appellant is an Association of the graduate Engineers and
    appellants 2 to 4 are members of the said Association and are at present
    employed as Assistant Engineers in the ODA. Respondents 4 to 12 are the
G   diploma-holder engineers and are at present employed as Executive En-
    gineers in the DOA. According to the appellants, under the Central
    Engineering Service, Class I, Recruitment Rules, 1954 [hereinafter referred
    to as '1954 Rules'] no Assistant Engineer who is a diploma-haler is
    qualified to be promoted to the post of Executive Engineer. This, they
H   contend, is the result of reading together of Rules 3, 4, 13 and 23 of the
        D.D.A. ENG. ASSCN. v. LT. GOVERNOR [SAWANT, J.]                    477

1954 Rules. Since this position arising out of the 1954 Rules is not disputed A
before us on behalf of the respondents, it is not necessary to reproduce
them here. However, it is contended on behalf of the respondents that for
the promotion to the post of Executive Engineer in the DDA, what were
made applicable by the said 1971 Resolution were the instructions con-
tained on the subject in the Manual as applicable to the Central Public B
Works Department. According to paragraph 13 of Section 7 [dealing
exclusively with promotions] of Volume I of the said CPWD Manual, (1970
Edition), diploma-holder Assistant Engineers are eligible for promotion to
the post of Executive Engineer if they have put in 10 years service in the
Grade as against Graduate Engineers who have to put in 8 years' qualifying
service for being entitled to the said post. The said paragraph 13 reads as C
follows:

        "13. In case of Executive Engineers, the Departmental
        candidates promotion from the lower rank of Sectional
        officer to Class II Services of Assistant Engineers are also
        to be considered along with Class I and JI directly recruited            D
        Officers in ratio of 1:2. The eligibility criteria is as under:-

        [i]     Assistant Executive Engineers [Direct Recruit Class
                I] - 5 years in the grade.

        [ii]    Assistant Engineers [Direct Recruits Class II] - 8               E
                years service in the grade.

        [iii]   Assistant Engineers [Promotees Class II]

        [a]     Graduates - 8 years service.
                                                                                 F
        [b]     Diploma Holders - 10 years· service in the grade.

        [c]     Unqualified - 10 years service in the grade with out-
                standing record."

       3. On behalf of the appellants, it is not disputed that if the aforesaid G
paragraph 13 of the CPWD Manual has valid application, diploma-holder
Assistant Engineers would be eligible to be nromoted to the post of
Executive Engineer. However, Shri Ramarnurthy on their behalf contended
that the CPWD Manual cannot override 1954 Rules, and the 1971 Resolu-
tion passed by the DOA speaks of the Rules and not of the instructions H
    478                   SUPREME COURT REPORTS[1992] SUPP. 1 S.C.R.

A contained in the Manual. It was also contended by him that it is not shown
    by the respondents as to how the said paragraph 13 had modified the 1954
    Rules. Neither the Government resolutions nor any other document has
    been produced to support the encroachment made by the said paragraph
    13 on the 1954 Rules. He also pointed out to us that the Central Ad-
    ministrative Tribunal, Principal Bench, New Delhi in its judgment in 0.A.
B   No.704 of 1988 had on 30th April, 1990 struck down the added proviso to
    sub-rule [3] of Rule 21 of 1954 Rules as being arbitrary and discriminatory.
    The said amended proviso read as follows:

                 "Provided that the Government, in consultation with
C            the Commission, may promote an Assistant Engineer of
             outstanding ability and record, to Class I Service in relaxa-
             tion of the educational qualifications provided in clause
             [a]."

          While doing so in paragraph 16 of its judgment, the Tribunal ob-
D served as follows:

             "16. In the facts and circumstances of the case, we are of
             the view that the proviso under Rule 21 (3) (sic.) is arbitrary
             and discriminatory. The proviso, therefore, requires to be
             substituted by a rational and just criterion e.g., holding of
E
             a qualifying test for diploma holder AEs, annually or as
             may be necessary, to obviate the element of arbitrariness
             and make the rule reasonable. Those who qualify in such
             a departmental test should be considered along with
             grauduate AEs for promotion to the next higher grade by
F            the DPC by following the normal procedure."

            He submitted that this judgment has become final. Accordingly to
     the Tribunal, therefore, the diploma-holder Assistant Engineers would be
     eligible to be promoted to the post of Executive Engineer only if they
G    qualify in a departmental qualifying test, if held, as suggested by it to
     obviate the element of arbitrariness. Relying on the said observation, Shri
     Ramamurthi submitted that but for the said added proviso the diploma-
     holder Assistant Engineers were not eligible for pormotion to the post of
     Executive Engineer, at all.

H          4. As against this, Shri Gupta, appeanng for the respondent-
        D.D.A. ENG. ASSCN. v. LT. GOVERNOR [SAWANT, J.]                   479

diploma-holder Engineers, drew our attention to paragraph 15 of the same         A
judgment of the Tribunal, which, among other things, states as follows:

         "15. The eligibility for promotion to the grade of EE was
         conferred on the diploma-holder AEs by the amendment
         to the Engineering Service Group A Recruitment Rules,
         initially under the executive instructions of 1956 and sub-             B
         sequently by amending the rules in 1972...... ".

      . In this connection, he also referred us to paragraph 6 of the judgment
of this Court in Roop ChandAdlakha & Ors. v. Delhi Development Authon·ty
& Ors., [1989] Supp. 1 sec 116 at 119 which reads as follows:
                                                                                 c
         "By resolution No. 105 dated June 16, 1971 the DDA
         similarly adopted the relevant rules in the CPWD in the
         matter of recruitment to the posts of Executive Engineers.
         The Executive Engineers's post in the DDA thus became
         purely promotional and Graduate Assistant Engineers with                D
         8 years' service experience and Diploma Assistant En-
         gineer with 10 years' service experience were eligible for
         promotion. No inter se quota between the two class of
         officers was prescribed.   11




       He submitted that the said observations of the Tribunal in its judg-      E
ment in 0.A. No. 704 of 1988 and of this Court in Roop Chand Adlakha's
case, [supra] clearly show that there has been a long practice in the CPWD
as well as in DDA of promoting both diploma-holder Assistant Engineers
with 10 years' service experience and Graduate Assistant Engineers with 8
years' service experience to the post of Executive Engineer and this was         F
being done in terms of paragraph 13 of the CPWD Manual. He, therefore,
contended that there was no doubt that what the DDA had in its mind
when it passed the resolution in question was the practice prevalent in
CPWD based not only on the 1954 Rules but also as contained in para-
graph 13 of the CPWD Manual.
                                                                                 G
      5. We are of the view that the contention advanced by Shri Gupta
has much force in it. The DDA came into existence in 1957. It appears that
there was a practice of filling in the higher posts by bringing staff on
deputation from other organisations. There was, therefore, a good deal of
resentment among the DDA staff, and in March 1971 a representafon was H
    480                  SUPREME COURT REPORTS(l992] SUPP. l S.C.R.

A   made by the Assistant Engineers against the meagre promotional oppor-
    tunities available to them. Hence on 16th June, 1971, the DOA took stock
    of the situation and passed the resolution in question. It will be worthwhile
    to reproduced the relevant extracts of the minutes which are Annexure 'C'
    to the petition:

B               "In March, 1971, representation has been made by the
             Assistant Engineers of the D.D.A. to ihe Chairman, Delhi
             Development Authority, against the meagre promotional
             opportunites they got in the DDA's office. The present
             position of the recruitment rules have been explained to
c            the Chairman, D.D.A. and he has desired that percentage
             of promotion quota should be fixed whenever it has not
             been fixed under the recruitment rules of the Delhi
             Development Authority.

             2. In pursuance of the above instructions of the LG/Chair-
D            man/ODA, the position has been examined, it has been
             noticed that percentage of promotion has not been fixed
             under the recuitment rules for the post of Executive En-
             gineers and Executive Officers.

             3. The matter is, therefore, placed before the Development
E
             authority for deciding as to what percentage of promotion
             quota should be fixed for the two categories of posts.

             4. In regard to the procedure for filing the posts of Execu-
             tive Engineers in the Delhi Development Authority as laid
F            down in Resolution No. 574dated the 13th November, 1963
             is that the post be filled in either by direct recruitment or
             by taking officers on deputation or by promotion as Assis-
             tant Executive Engineer/Assistant Engineers from the of-
             fice as deemed fit by the Authority.
G            5. At present there are 30 posts of Executive Engineers in
             the Authority of which 8 are held by the officers of the
             D. D .A. 6 directly recruited and 2 promoted from the office

             6. As regards the conditions of eligibility for promotion it
H            is proposed that the same conditions as are applicable in




                                                                                    '
        D.D.A. ENG. ASSCN. v. LT. GOVERNOR [SAWANT, J.]               481

        the C.P.W.D. may be prescribecl ..                                  A
        7. As regards the post of Executive Officers, there are at
        present 15 posts. Against these posts two officers promoted
        from the D .DA. are working and the remaining are
        deputationist mostly from the State Civil Service.
                                                                            B
                             RESOLUTION

           Resolved that the same rules of promotion should be
        made applicable in the D.D .A. as are in vogue in the
        Central PWD and no consideration for private service
        would be allowed.
                                                                            c
           In regard to the Executive Officers, these (sic.) matter
        was postposed for further consideration."

       6. It is clear from paragraph 6 of the minutes that the DOA wanted D
to enforce the same "conditions" of eligibility as were application in the
CPWD. While, however, passing the resolution, instead of the word "con-
ditions" the word rules" of promotion was used. As pointed out above, it
                 11



is clear from the observations made in the decision of the Tribnnal in 0.A.
704 of 1988 as well as by this Court in Roop Chand Ad/akha's case (supra]
that the procedure given in paragraph 13 of the CPWD Manual was E
applicable for promotion to the post of Executive Engineer in the CPWD.
Hence, what the DOA ·had in mind was not only the statutory rules but
also the procedure for promotion given in the CPWD Manual. That what
was in fact intended to be adopted was the procedure given in the CPWD
Manual is a further evident from the fact that from that date onwards till F
today in facts both the diploma-holder Assistant Engineers with 10 years'
service experience and graduate Assistant Engineers with 8 years' srevice
experience have been promoted to the post of Executi\•e Engineer. The
eligibility of the diploma-holder Assistant Engineers for promotion to the
post of Executive Engineer based on the said Resolution was never ques-
tioned by the graduate Assistant Engineers till this day. This is obvious G
from the stand taken by the Graduate Assistant Engineers in Roop Chand
Ad/akha's case (supra]. That was a case where the diploma-holder Assis-
tant Engineers had approached the High Court by different writ petitions
challenging the differential treatment accorded to them and the graduate
Assistant Engineers by prescriptions of different standards of service ex- H
    482                  SUPREME COURT REPORTS{l992] SUPP. l S.C.R.

A   perience for purposes of eligibility for promotion to the post of Executive
    Engineer and other higher posts. The High Court had accepted the con·
    tention of the diploma-holders declaring the differential treatment as un-
    constitutional. Against the said decision, both the graduate Engineers and
    the DDA had come in appeal to this Court. This Court set aside the
    decision of the High Court holding that there was nothing unconstitutional
B   in prescribing different lengths of qualifying service experience for the
    diploma-holder, Assistant Engineers and the graduate Assistant Engineers.
    What is relevant for our purpose is that the stand taken by the graduate
    Engineers there was not that the diploma-holders were not eligible for
    promotion to the posts of Executive Engineers because of 1954 Rules.
C   There the position taken by them was that the higher length of service
    experience required of the diploma-holders for promotion was justified
    and the diploma-holders could not make a grievance of discrimination,
    between them and the graduate Engineers on the ground of differential
    length of qualifying service, viz., 10 years required of them as against 8
D   years required of the graduate Engineers. The appellants' contention that
    they became for first time aware of the fact that diploma-holders were not
    at all eligible for promotion to the post of Executive Engineer under the
    1954 Rules cannot, therefore, be accepted.

          Whatever may be the validity of the instructions contained in the
E CPWD Manual as against the 1954 Rules, which may or may not be open
    for questioning by the CPWD Engineers, as far as the Engineers in DOA
    are concerned, it is not open for them to challenge the same for the simple
    reason that what was accepted as the procedure for promotion by the DOA
    by its 1971 Resolution in question was the procedure for promotion as
F   contained in CPWD Manual which was admittedly applicable to the
    promotion to the post of Executive Engineer, in CPWD.

         7. We are alsu not sure in the absence of proper material before us
  that in fact the 1954 Rules were not suitably and validly amended to
  incorporate the procedure for promotion which is detailed in paragraph 13
G of the CPWD Manual by making amendment to the 1954 Rules themselves. ·
  We have also no material before us to show that the 1954 Rules were made
  under Article 309 of the Constitution. If they were not made under Article
  309, there was nothing wrong in amending the same by executive instruc-
  tions, since the main rules themselves could be no better than executive
H instructions. However, as stated earlier, we have no proper data on the
        D.D.A ENG. ASSCN. v. LT. GOVERNOR (SAWANT, J.]                  483

subject and we will express no opinion on the status of the said Rules or A
on the procedure by which the said Rules were amended. Nor is it neces-
sary for us to do so in this case since, as is pointed out earlier, the only
question that falls for consideration before us is the interpretation of the
Resolution in question passed by the DDA and what exactly was the
procedure for promotion which the DDA wanted to adopt. We have B
answered this question already.

      8. We are afraid that although the High Court rightly dismissed the
writ petition of the appellants, it did so for wrong reasons. The High Court
dismissed the writ petition relying on the decision of this Court in Roop
Chand Adlakha's case (supra) the ratio of which decision has nothing to        C
do with the point involved in the present case. The High Court failed to
appreciate the grievance of the appellants who were the writ petitioners
before it. However, for the reasons stated above, and not for the reasons
given by the High Court, we find no substance in the grievance.

      9. The appeal is, therefore, dismissed. In the circumstances of the      D
case, there will be no order as to costs.

R.P.                                                     Appeal dismissed.




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