Union of India and Another Vs. Central Electrical &
Mechanical Engineering Service (Ce&Mes)  Insc 1107 (1 November 2007)
S.B. Sinha & Harjit Singh Bedi
Service (CE&MES) Group A (Direct
Recruits) Association, CPWD & Ors CIVIL APPEAL NO. 5086 OF 2007 [Arising
out of SLP(C) No. 2960 of 2007] S.B. SINHA, J.
1. Leave granted.
2. This appeal is directed against a judgment
and order dated 24.5.2006 passed by a Division Bench of the High Court of Delhi
at New Delhi in CM Nos. 9506/2004 & 4393/2006 and W.P.(C) No. 13604/2004
& 13605/2004 dismissing an Order dated 17.12.2003 passed by the Central
Administrative Tribunal, Delhi Bench, Delhi in Original Application No.
3. The basic fact of the matter is not in
4. Central Public Works Department belonging to
the Central Government has its own Service Rules framed under the proviso
appended to Article 309 of the Constitution of India, known as Ministry of
Urban Affairs and Employment (Department of Urban Development) Central
Engineering (Civil) Group A Service Rules, 1996 (Rules). The
said Rules came into force with effect from 28.10.1996. Whereas Rule 3 of the
Rules provides for Constitution of the Service, Rule 4 provides for
Grade, strength and its review. The first schedule appended to the
Rules provides for the posts in the Central Engineering Service, Group
A. The hierarchy of the officers has also been provided therein.
Rules govern the field of recruitment as also the cadre strength. Despite the
fact that the terms and conditions of the employees belonging to the said cadre
are governed by the statutory Rules, on or about 1.8.2002, a purported office
order was issued, the relevant part whereof reads as under:- To maintain
interdisciplinary coordination amongst various disciplines of CPWD, it has been
decided that at zonal level all the 4 disciplines, viz, Civil, Electrical &
Mechanical, Architecture & Horticulture of CPWD shall work under the
administrative supervision and control of the zonal head, i.e. Chief Engineer.
The officers of all disciplines in a zone will exercise their delegated powers
and will report to the Chief Engineer who will further report to the ADG(Region).
This system will function under the following guidelines:- i) Each zone shall
be headed by a CE(C) or CE(E) subject to the conditions there will be at least
one CE(E) heading a zone in each Region.
5. On or about 11.3.2003, another office order
bearing No. 34/03 was issued by the Central Public Works Department stating;
Sub: Reorganisation of zones in New
Delhi Region under ADG (S&P) for unified control.
In pursuance of Ministry of Urban Development
& Poverty Alleviation Office Order No. 28017/2/2002- EW.1 dated 1.8.2002
and in order to maintain interdisciplinary coordination amongst various
disciplines of CPWD, DG(W) CPWD is pleased to reorganise the circles &
divisions amongst NDZ-1 & NDZ-2 and Electrical Zone, New Delhi Region on
trial basis. The Electrical Zone (NDR) thus reconstituted shall be known as New
2. The officers of all disciplines in a zone
will exercise their delegated financial, administrative, technical powers and
will report to the Chief Engineer of the zone, who will further report to the
3. The Chief Engineer either Civil or Electrical
as zonal heads shall exercise his/her delegated powers for both civil and
4. To facilitate technical sanction of estimates
above the delegated powers of SEs, zonal CEs will have one EE(P) from the other
discipline in their SE(P) unit.
In exceptional cases the CE of either discipline
can approach the ADG of the region for arranging technical sanction of
estimates of other disciplines.
6. Validity and/or justification of the said
orders came to be questioned before the Central Administrative Tribunal, Delhi Bench
at Delhi. The Tribunal upon
considering the matter at some length, opined that the purported reorganization
of the cadre strength by the appellant herein in terms of the said office
orders dated 1.8.2002 and 11.3.2003 were wholly unsustainable. The original
application was, therefore allowed. A Division Bench of the Delhi High Court
affirmed the said view of the Tribunal by reason of the impugned judgment.
7. Mr. R. Mohan, learned Additional Solicitor
General appearing on behalf of the appellant in support of this appeal
submitted that the Tribunal and consequently the High Court committed a serious
error in passing the impugned judgments and orders insofar as they failed to
take into consideration that reorganization of cadre was not necessary to be brought
about by amending the Rules. It was contended that as by the said office
orders, neither any change in the cadre strength nor anybodys seniority,
pay packet or any other benefit having been effected, amendment to the Rules
was wholly unnecessary.
8. Mr. Rajiv Dutta, learned senior counsel
appearing on behalf of the respondent, on the other hand, submitted that the
office orders are clearly ultra vires statutory rules framed by the Union of
India inasmuch as by reason thereof, another post is created which is not
contemplated under the statute.
9. The aforementioned office orders dated
1.8.2002 and 11.3.2003 are not statutory in character. They even ex-facie do
not satisfy the requirements of Article 162 of the Constitution of India.
Indisputably, the disciplines of Civil, Electrical and Mechanical in the
Central Public Works Department are different and distinct. The said office
orders provided that disciplines referred to therein including Civil and
Electrical were to work under the control of the Zonal Head being either a
Chief Engineer (Civil) or Chief Engineer (Electrical). It has not been denied
or disputed that the post of Chief Engineer (electrical or civil), was beyond
the purview of the Rules.
It is beyond any cavil that there are posts of
Chief Engineer in all the four wings of the Central Public Works Department.
The Rules provides for posts of Civil Engineers. As by reason of the impugned
orders, some sort of amalgamation of different cadres are sought to be made
beyond the legal sanction as envisaged under the Rules, in our opinion, the
same is impermissible in law. Appellants before the High Court have admitted
that the Ministry had no intention to merge the civil and electrical streams
which were two distinct services having separate recruitment rules. The said
office orders, thus, clearly interfere with the working of the statutory rules
inasmuch as by reason thereof, a post would be created which would be
designated as a Chief Engineer either Civil or Electrical, which belongs to two
10. It is now a well settled principle of law
that an executive order must be passed in conformity with the Rules. Power of
the State Government to issue executive instructions is confined to filling up
of the gaps or covering the area which otherwise has not been covered by the
existing Rules. See office orders must be subservient to the statutory rules.
11. For the reasons aforementioned, there is no
merit in this appeal which is dismissed accordingly. In the facts and
circumstances of this case however, there shall be no order as to costs.