K.K. TIWARI & ORS.versusUNION OF INDIA & ORS.

                              [2008] 6 $.C.R. 705


                             K.K. TIWARI & ORS.                          A
                                       v.
                           UNION OF INDIA & ORS.
                        (Civil Appeal No. 571 of 2002)
                               APRIL 21, 2008
     >                                                                   B
         [A.K. MATHUR AND LOKESHWAR SINGH PANTA, JJ.]

              Service Law:
               Defence Service of Engineers (Recruitment and
         Conditions of Service) Rules, 1991 - Rule 7 rlw Schedule Ill -  c
         Promotiqn - Post of Executive Engineers (EEs) - From the
         cadre of Assistant Executive Engineers (AEEs) (direct recruits)
         and Assistant Engineers (AEs) (promotees) - Circular stating
         that all 58 posts of EEs for 1997-98 to be filled in by promotion
         from amongst AEs only - Challenge to, by AEEs - Direction D
         by tribunal to Government to fill vacancies by promotion in
         ratio of 213rd from AEEs and 1;3rd from A Es as per the Rules -
         Upheld by High Court- Interference with - Held: Order of High
         Court suffers from no error or perversity since the Circular did
         not find support from the Rules - Rule 7 rlw Schedule Ill states E.
         that post of EEs are to be filled in from AEEs and AEs in ratio
         of 66213 and 33 113 respectively - Its language is to be read
         harmoniously with meaningful construction - Intention of the
         Rules cannot be ignored -Acceptance of claim of AEs that all
         58 posts of EEs for the year 1997-98 are to be filled in by F
't       promotion from amongst AEs cadre would break down the
         quota rule.
              The promotion to the post of Executive Engineers
         (EEs) is made from the cadre of Assistant Executive
         Engineers (AEEs) (direct recruitees); and from the cadre G
         of Assistant Engineers (AEs) (promotees). A Circular dated
         29.07.1997 was issued stating that as on 1.4.1997 out of
         the then sanctioned strength of 445 posts of EEs, 354
         posts as against 297 posts were occupied by those
                                    705                             H
    706      SUPREME COURT REPORTS               [2008] 6 S.C.R.


A employees who have been promoted from the cadre of
  AEEs, while 76 posts as against 148 posts by those
  belonging to the cadre of AEs; and that the total demand
  for the year 1997-98 to the cadre of EEs was 58 posts,
  which were to be filled in by promotion from amongst AEs
B only. The private respondents-AEEs challenged the order.
  The tribunal directed the respondent no. 1-3 to fill in the
  posts of Executive Engineer by promotion in proportion
  of 213rd from the Assistant Executive Engineers and 113rd
  from Assistant Engineers as per the Indian Defence
c Service of Engineers (Recruitment and Conditions of
  Service) Rules, 1991. Both the appellant and the
  respondent no 2 filed writ petitions. High Court upheld
  the order. Hence the present appeal.
          Dismissing the appeal, the Court
D
          HELD: 1.1 The High Court was right in holding that a     .
    direction in terms of the Circular of respondent No.2 did
    not find support from the Indian Defence Service of
    Engineers (Recruitment and Conditions of Service) Rules,
    1991 as Rule 7 neither refers to Schedule I which
E   prescribes the total strength of the cadre nor it provides
    anywhere further that recruitment shall be made in a
    manner so as to maintain the ratio of 2/3rd and 1/3rd in
    the entire cadre for a particular year. The language of Rule
    7 is very clear and unambiguous and it emphasises that
F   after the commencement of the Rules which came into
    force on 9th July, 1991,' the vacancies shall be filled in a
    manner provided in Schedule Ill. Schedule Ill prescribes
    that the post of EEs shall be filled in the ratio of 66 2/3
    posts to be filled on non-selection basis from the grade
G   of AEEs and 33 1/3 posts have to be filled on selection
    basis from the post of AEs. The expression "posts to be
    filled" used in the rule clearly indicates and means that
    whenever any selection is made to the post of EE, the
    ratio, the criteria and the essential minimum qualifying
H   service in terms of Schedule Ill shall have to be strictly
              K.K. TIWARI & ORS. v. UNION OF INDIA & ORS.             707


            followed and adhered to and any promotion in excess of A
            the quota will result in breaking down the prescribed
            quota. Thus, the language of Rule 7 read with Schedule
            Ill governing the service conditions has to be read
            harmoniously with meaningful construction. (Para 25)
            (713-H; 714-A-D]                                                 B
                  1.2 It is not possible or advisable to interpret the ratio
            of 2/3rd and 1/3rd as prescribed in Schedule Ill of Rule 7
            in the manner that all the 58 posts of EEs for the year 1997-
            98 should be filled in by promotion from the cadre of AEs
            only. If the claim of the appellants that all 58 posts of EEs c
            for the year 1997-98 are to be filled in by promotion from
            amongst the AEs cadre only is accepted, then the quota
            rule as prescribed by Rule 7 read with Schedule Ill shall
           break down with the result that the ratio of 2/3rd and 1/
           3rd prescribed in the rules for AEEs and AEs has to be D
      ..   ignored and· resultantly a situation may arise when one
           cadre will get excess quota as compared to other feeder
           cadre. If the service rules are construed in right
           perspective and read their provisions in a harmonious
           manner then the desired result can be achieved. If the
           interpretation which is sought to be given by the E
           appellants is to be accepted, then it is likely to disturb the
           ratio in the cadre strength of sanctioned strength. When
           the Rules say that posts of EEs shall be filled in from two
           channels i.e. AEEs and AEs in the proportion of 66 2/3
           and 33 1/3 respectively the intention of the Rules cannot F
           be ignored. On evaluation of the findings recorded by the
           High Court no manifest error or perversity is found in the
           judgment of the High Court warranting interference in this
           appeal. (Paras 25 and 26) [714-E-H; 715-A-B]
                 CIVILAPPELLATE JURISDICTION: Civil Appeal No. 571 G
           of 2002.
1'   ...
                 From the final Judgment and Order dated 9.08.2001 of
           the High Court of Judicature at Allahabad in Civil Misc. Writ
           Petition No. 10242 of 2000.                                   H
    708       SUPREME COURT REPORTS                   [2008] 6 S.C.R.


A        P.S. Patwalia, Manita Verma, Vinay Kumar Garg and
    Ranjan Mukherjee for the Appellants.
        Dr. R.G. Padia, Devendra Singh, Rajiv Nanda, B.K. Prasad,
    Sushma Suri and John Mathew for the Respondents.

B         The Judgment of the Court was delivered by

        LOKESHWAR SINGH PANTA, J. 1. This appeal by
  special leave is directed against the judgment and order dated
  9th August, 2001 passed by the Division Bench of the High Court
  of Allahabad at Allahabad in Civil Miscellaneous Writ Petition
c No. 10242/2000 and Civil Miscellaneous Writ Petition No.
  18114/2000. By the common judgment under challenge, the High
  Court dismissed the writ petitions whereby the order dated 81h
  February, 2000 passed by the Central Administrative Tribunal
  (hereinafter referred to as 'the Tribunal'}, Allahabad Bench,
D Allahabad, in O.A. No. 465/1999 was affirmed, whereunder the
  Tribunal directed the Union of India through the Secretary,             ..
  Ministry of Defence - respondent No.1, Engineer-in-Chief, Army
  Head Quarters - respondent No. 2 and Union Public Service
  Commission - respondent No. 3 herein to fill in the posts of
E Executive Engineer in proportion of 2/Yd from the Assistant
  Executive Engineers and 113rd from Assistant Engineers in
  accordance with the relevant rules.

        2. Facts relevant and necessary leading to the filing of this
    appeal may be stated.
F
         3. There are two feeder channels for promotion to the post
                                                                               •
    of Executive Engineers (EEs): (i) from direct recruit known as
    Assistant Executive Engineers (AEEs) and (ii) from the grade
    of Assistant Engineers (AEs) (promotees).
G      4. The rules governing the service of the cadres framed
  under Article 309 of the Constitution of India are called 'the Indian
  Defence Service of Engineers (Recruitment and Conditions of
                                                                           ~

  Service) Rules, 1991 (hereinafter referred to as 'the Rules').
  The appellants in the present case are the A Es, whereas private
H respondent Nos. 4 to 10 are AEEs. The AEEs are appointed
         K.K. TIWARI & ORS. v. UNION OF INDIA & ORS.                709
                 [LOKESHWAR SINGH PANTA, J.]

      by direct recruitment on the basis of selection made by Union         A
      Public Service Commission (for short 'the UPSC').

           5. A Circular dated 29.07.1997 was issued by respondent
      No.2 in which it was stated that as on 1.4.1997 out of the then
      sanctioned strength of 445 posts of EEs, 354 posts (as against
                                                                            B
      297 posts) were occupied by those employees who have been
      promoted from the cadre of AEEs, while 76 posts (as against
      148 posts) by those who belong to the cadre of AEs. It was also
      stated in the said Circular that the total demand for the year
      1997-98 to the cadre of EEs was 58 posts, which were directed
      to be filled in by promotion from amongst AEs only.                   c
            6. The private respondents herein challenged the order
      dated 29.07.1997 of the Engineer-in-Chief - respondent No. 2
      before the CAT, Principal Bench, Allahabad. The Tribunal by its
      order dated 08.02.2000 partly allowed the O.A. and directed
                                                                            D
.,.   respondent Nos. 1 to 3 to fill up the vacancies by promotion in
      the ratio of 213rd from AEEs and 113rd from AEs in accordance
      with the provisions of the relevant rules.
            7. Feeling aggrieved by and dissatisfied with the order of
      the Tribunal, two writ petitions, one by the appellants and another   E
      by the Engineer-in-Chief, were preferred before the High Court
      of Allahabad.

           8. Having heard the learned counsel for the parties and
      having perused the entire record, the Division Bench of the High
                                                                            F
.     Court has found no substance in the writ petitions and
      accordingly dismissed the same inter a/ia holding as under:-

           "The order of the Engineer-in-Chief dated 29.7.1997 can
           at best be treated to be an executive instruction. If the
           rules are silent on any point the Government can fill up the
                                                                            G
           gaps and supplement the rules and issue instructions
           consistent with the rules already framed. But they cannot
           run contrary to statutory provisions.or whittle down their
           effect. The office memorandum dated 29. 7 .1997 clearly
           runs contrary to the provisions of the rules and as such, it
                                                                            H
    710       SUPREME COURT REPORTS                    (2008] 6 S.C.R.


A         is illegal. The order passed by the CAT directing
          respondent nos. 1 to 3 to fill up the vacancies in proportion
          of 213rd of Assistant Executive Engineers and 113rd from
          Assistant Engineers is, therefore, perfect, legal and calls
          for no interference.
B          In view of the discussion made above, both the writ
    petitions lack merit and are hereby dismissed."
         9. Hence, AEs-appellants have filed this appeal
    questioning the correctness and validity of the judgment of the
c   High Court.
         10. Mr. P.S. Patwalia, learned senior counsel appearing
  on behalf of the appellants, contended that the High Court erred
  in reading Rule 7 of the Rules separately from Schedule Ill
  appended to the Rules while construing the words "post to be
D filled" in Column 3 of Schedule Ill to mean the available
  vacancies at a given point of time and thus, instead of applying
  the quota to the "duty posts" or the cadre, has wrongly applied it
  to the vacancies. According to the learned counsel, if the
  interpretation t() the duty posts as given by the High Court is
E accepted, miscarriage of justice shall be perpetuated to the A Es
  who shall never achieve their due share of quota as envisaged
  under the Rules. He emphasized that the quota prescribed by
  the rules shall strictly be adhered to and any promotion made in
  excess of the quota will not give right to the promotee to hold
F the posts meant for the other feeder cadre and inaction of the
  Government to make promotions from one feeder channel is                 •
  not indicative of breaking down of quota.
        11. Dr. R.G. Padia, learned senior counsel appearing on
  behalf of respondent Nos.1 to 3, on the other hand, contended
G that the Tribur1al as also the High Court have passed well-
  reasoned and well-merited orders based upon the facts of the
  case, the relevant rules governing the service conditions of the        ..
  parties and the principles of law and, therefore, this Court shall
  not be obliged to interfere with the judgment of the High Court
H upholc;ling the order of the Tribunal.
   K.K. TIWARI & ORS. v. UNION OF INDIA & ORS.                   711
           [LOKESHWAR SINGH PANTA, J.]

      12. In order to appreciate the rival contentions of the learned   A
counsel for the parties, we think it appropriate that the rules
relevant for the purpose of determination of the controversy
raised in this appeal need to be referred to.

      13. Rule 2(e) of the Rules defines 'duty posts' to mean any
post specified in Column 4 of Schedule I. In Rule 2 (h) 'grade'         8
means a grade of the Service specified in Column 1 of Schedule
1. 'Regular services in relation to any grade' in terms of Rule
2(j) means the period of service in the grade rendered after
selection according to procedure laid down by the Government
for long term appointment to that grade and includes any period         C
or periods:

      (i)    taken into account for purpose of seniority in the case
             of these appointees in the initial constitution of the
             service;
                                                                        D
      (ii)   during which an officer would have held a duty post
             In the grade but for being on leave or otherwise not
             being available for holding such post.
     14. Rule 2(m) of the Rules defines 'Service' to mean the
Indian Defence Service of Engineers constituted under Rule 3.           E

     15. Rules 3 deals with the Constitution of Indian Defence
Service of Engineers, which reads as under:-

     "There shall be constituted a service to be known as the
     Indian Defence Service of Engineers consisting of posts            F
     specified in Schedule I."
     16. Rule 4 deals with grade, authorized strength and its
review.
     17. Rule 5 prescribes members of th§ §ervige ~ng reads             G
as under:-
      "The following persons shall be members of the service,
      namely:-

      "(a) Pernon§ deem§g tg he1v@ !:}'§§!'! e~pgirH~g tg tne H
    712       SUPREME COURT REPORTS                   [2008] 6 S.C.R.


A         service under Rule 6; and

          (b) Persons appointed to the service under Rule 7."

         18. The Initial Constitution of the service on the
    commencement of these Rules is governed by Rule 6, which
B   reads as under:-

          "All the existing officers in the Military Engineer Services
          (Engineer Cadre) holding Group 'A' posts on regular basis
          on the date of commencement of these rules shall be
          deemed to have been appointed to the corresponding
c         posts and grades in the service in the substantive or
          officiating capacity, as the case may be, at the initial
          constitution stage."

         19. The material and relevant rule on the basis of which
    the point in issue has been decided by the Tribunal and the
0
    High Court reads as under:-
                                                                         "
          "Rule 7. After the commencement of these rules, the
          vacancies, excluding the vacancies. reserved for Army
          Officers under the Military Engineer Services (Army
E         Personnel) Regulations, 1989 shall be filled in the manner
          as provided in Schedules II, Ill and IV."
         20. The relative seniority of members of the service is
    governed by Rule 8.

F       21. Schedule I attached to the Rules prescribes the names
  of posts, total number of posts and number of posts, which are
  to be held by Civilian Officers in each grade and scale of pay of
  Additional Director General, Chief Engineer and Additional Chief
  Engineer, Superintending Engineer (selection grade),
G Superintending Engineer (ordinary grade), Executive Engineer
  and Assistant Executive Engineer. The total number of sanctioned
  posts of EEs is mentioned 890, out of which 445 posts are to
  be held by Civilian Officers.
        22. Schedule II presc·ribes minimum educational
H qualifications and age limits for direct recruits to the post of
        K.K. TIWARI & ORS. v. UNION OF INDIA & ORS.                713
                [LOKESHWAR SINGH PANTA, J.]

     AEEs Group 'A' to be filled in on the basis of examination to be      A
     conducted by the UPSC.
            23. Schedule Ill [see Rule 7] provides the method of
     recruitment, field of promotion and minimum qualifying service
     in the next lower grade or feeder grade for promotion to duty
     posts in the various grades of the Indian Defence. EEs are            B
     placed at Serial No.6 of the Schedule. EEs posts in terms of
     Column 4 of the Schedule are to be filled in by two channels of
     promotions, viz. (i) 662/3% posts are to be filled on non-selection
     basis from the grade of AEEs with four years regular service in
     the grade with a Degree in Civil, Mechanical or Electrical            c
      Engineering or equivalent from a recognised University/
      Institution and 33.1/3% posts to be filled on selection basis from
     the grade of AEs with 8 years regular service in the grade and
     possessing Degree in Civil, Mechanical or Electrical
      Engineering or equivalent from a recognised University/              D
      Institution [see Column 5].
           24. We have given our anxious consideration to the above
     raised contentions of the learned counsel for the parties in the
     light of the above-extracted relevant Rules.
                                                                           E
            25. Rule 7 on its bare reading does not make reference to
     Schedule I, which provides that 445 numbers of posts are to be
     held by Civilian Officers in the cadre of EEs. The Rules nowhere
     provide that the total strength of the cadre of EEs has to be
     consistently maintained in a manner that 213rd cadre is manned        F
'!   by those who are promoted from the posts of AEEs and 113rd
     cadre is manned by those who have been promoted from the
     post of AEs. It appears from the record that the entire basis for
     issuing the Circular dated 29.7.1997 by respondent No.2 was
     that in the cadre of EEs the ratio of such officers who had been
                                                                           G
     promoted from the post of AEs had been depleted and after
     calculation of the posts, the deficiency has been found to the
     extent of 58 vacancies and, therefore, the vacancies should be
     filled in from amongst AEs only for a particular year 1997-98.
     The High Court, in our opinion, was right in holding that such a
                                                                           H
                                      0
    714       SUPREME COURT REPORTS                  [2008] 6 S.C.R.


A direction in terms of the Circular of respondent No.2 did not find
  support from the rules as Rule 7 neither refers to Schedule I
  which prescribes the total strength of the cadre nor it provides
  anywhere further that recruitment shall be made in a manner so
  as to maintain the ratio of 213rd and 113rd in the entire cadre for
B a particular year. The language of Rule 7 is very clear and
  unambiguous and it emphasises that after the commencement
  of the Rules which came into force on 9th July, 1991, the
  vacancies shall be filled in a manner provided in Schedule Ill.
  Schedule Ill, as earlier noticed, prescribes that the post of EEs
c shall be filled in the ratio of 662/3 posts to be filled on non-
  selection basis from the grade of AEEs and 33.1 /3 posts have
  to be filled on selection basis from the post of AEs. The
  expression "posts to be filled" used in the rule clearly indicates
  and means that whenever any selection is made to the post of
  EE, the ratio, the criteria and the essential minimum qualifying
0
  service in terms of Schedule Ill shall have to be strictly followed
  and adhered to and any promotion in excess of the quota will
  result in breaking down the prescribed quota. Thus, the language
  of Rule 7 read with Schedule Ill governing the service conditions
  has to be read harmoniously with meaningful construction. It is
E not possible or advisable to interpret the ratio of 213rd and 113rd
  as prescribed in Schedule Ill of Rule 7 in the manner that all the
  58 posts of EEs for the year 1997-98 should be filled in by
  promotion from the cadre of AEs only. If the claim of the
  appellants that all 58 posts of EEs for the year 1997-98 are to
F be filled in by promotion from amongst the AEs cadre only is
  accepted, then the quota rule as prescribed by Rule 7 read with
  Schedule Ill shall break down with the result that the ratio of
  213rd and 113rd prescribed in the rules for AEEs and AEs has to
  be ignored and resultantly a situation may arise when one cadre
G will get excess quota as compared to other feeder cadre. If we
  construe the service rules in right perspective and read their
  provisions in a harmonious manner then the desired result can
  be achieved. If the interpretation which is sought to be given by
  the learned senior counsel for the appellants is to be accepted,
H then it is likely  todisturb the ratio in the cadre strength of
   K.K. TIWARI & ORS. v. UNION OF INDIA & ORS.                715
           [LOKESHWAR SINGH PANTA, J.]

sanctioned strength. When the Rules say that posts of EEs shall      A
be filled in from two channels i.e. AEEs and AEs in the proportion
of 662/3 and 331 /3 respectively we cannot ignore the intention
of the Rules.
     26. On evaluation of the findings recorded by the High Court
and for the reasons discussed hereinabove, we do not find any        8
manifest error or perversity in the judgment of the High Court
warranting interference in this appeal.
     27. In the result, the appeal is, accordingly, dismissed with
no order as to costs.                                                c
N.J.                                          Appeal dismissed