Kailash Prakash Joshi vs State of Uttarakhand and Others

Sudhanshu Dhulia, J.—The petitioner before this Court is a Superintending Engineer in Uttarakhand Public Works Department. He has challenged the order dated 17.9.2014, passed by the Government of Uttarakhand/respondent No. 1, appointing respondent No. 2 as Chief Engineer Level-II, which was later on modified on the same day (i.e., on 17.9.2014) whereby respondent No. 2 was made "Incharge" Chief Engineer Level II, National Highways, Public Works Department Uttrakhand, Dehradun. Both these orders are under challenge. The principal contention of the petitioner before this Court is that respondent No. 2 is not "in the cadre of service" of Public Works Department, Uttarakhand. In fact he is a Superintending Engineer in Public Works Department of Uttar Pradesh, hence under the Rules governing the service conditions of Engineers in Public Works Department in Uttarakhand, namely, the Uttar Pradesh Service of Engineer (Public Works Department) (Higher) Rules, 1990, (as is 2 applicable in the State of Uttarakhand), the respondent No. 2 could never have been appointed as Chief Engineer. It is an admitted fact that respondent No. 2 is a substantively appointed Superintending Engineer not in the service of Uttarakhand but in the service of neighbouring State of Uttar Pradesh. The Hon''ble Chief Minister of Uttarakhand made a request in writing vide his letter dated 8.2.2014, to his counterpart in Uttar Pradesh requesting him to send respondent No. 2 on deputation to Uttarakhand as his services are needed in Uttarakhand. Consequently, respondent No. 2 was relieved from Uttar Pradesh on 25th August, 2014 and he gave his joining in Uttarakhand on 5th September, 2014 as Superintending Engineer. It was formerly acknowledged and accepted by the State of Uttarakhand vide its letter of Principal Secretary, Public Works Department dated 17.9.2014.

At this juncture, we must note that the order of appointment of respondent No. 2 as Superintending Engineer on "deputation" in Uttarakhand is not under challenge by the petitioner before this Court. But of this later.

The petitioner himself is a Superintending Engineer in Uttarakhand Public Works Department and admittedly under the Rules mentioned above, the post of Chief Engineer Level-II has to be filled by way of promotion from amongst the substantively appointed Superintending Engineers who are in the "cadre of service" in Uttarakhand.

On 17.9.2014 itself after formally acknowledging the joining of respondent No. 2 the Principal Secretary, Public Works Department, appointed respondent No. 2 as Chief Engineer Level II in Public Works Department in Uttarakhand.

Admittedly in the Public Works Department in Uttarakhand, there are 05 substantive posts of Chief Engineer Level-II out of which 2 are presently occupied, on which substantively appointed Superintending Engineers are presently working. According to the respondent No. 1/State, one post has been left vacant by an order of Hon''ble Apex Court and on the other 2 posts, although Departmental Promotion Committee has been held but the matter has been kept in sealed cover on account of disciplinary proceedings against the concerned officials. On which of the three vacant posts respondent No. 2 was appointed is not clear, but that may not be of relevance here.

The petitioner has taken this Court to the Rules which are applicable in the present case i.e., the Uttar Pradesh Service of Engineer (Public Works Department) (Higher) Rules, 1990. Rule 5 of the aforesaid rules relates to source of recruitment. Rule 5 of the rules of 1990 reads as follows:

"5. Source of Recruitment.--Recruitment to the various categories of posts in the service shall be made from the following sources namely-

(i) Executive Engineer Civil, Electrical and Mechanical.--By promotion from amongst the substantively appointed Assistant Engineers in the Civil, Electrical and Mechanical branches respectively, who have completed seven years service on the first day of the year of recruitment;

(ii) Superintending Engineer Civil, Electrical and Mechanical.--By promotion from amongst the substantively appointed Executive Engineer in the Civil, Electrical and Mechanical branches respectively, who have completed atleast fifteen years total service (including atleast six years service as Executive Engineer) on the first day of the year of recruitment;

(iii) Chief Engineer Level-II Civil, Electrical and Mechanical.--By promotion from amongst the substantively appointed Superintending Engineers in the Civil, Electrical and Mechanical Branches respectively."

Under the above rules i.e., Rule 5(iii), the post of Chief Engineer Level-II has to be filled "by promotion" from amongst the "substantively appointed" Superintending Engineers in the Civil, Electrical and Mechanical branches respectively. The words "substantive appointment" has further been defined under Rule 3(h) of the Uttar Pradesh Service of Engineers (Public Works Department) (Higher) Rules, 1990, which reads as under:

"3. (h) "Substantive appointment" means an appointment, not being an ad hoc appointment, on a post in the cadre of the service, made after selection in accordance with the rules, and if there were no rules in accordance with the procedure prescribed for the time being by executive instructions issued by the Government."

A clear reading of the above provision shows that only the "substantively appointed" Superintending Engineer who is in the "cadre of service" can be promoted to the post of Chief Engineer Level-II. Admittedly, respondent No. 2 is not a substantively appointed Superintending Engineer in the cadre of service in Uttarakhand, therefore, his appointment as Chief Engineer Level-II, whether substantive or purely officiating (i.e., Incharge as it is mentioned in the later order dated 17.9.2014) is completely de hors the Rules. The State/respondent No. 1 as well as private respondent No. 2, who is represented by the Additional Advocate General Shri V.B.S. Negi and Shri Sharad Sharma, Senior Advocate, respectively in their counter-affidavits, as well as in their submissions before this Court have submitted that the respondent No. 2 has been sent on deputation from Uttar Pradesh to Uttarakhand on a special request of Hon''ble Chief Minister of Uttarakhand. It is the discretion and prerogative of an Hon''ble Chief Minister to call anyone in Uttarakhand, if he feels that it will be in the public interest. They have also challenged the locus of the petitioner to file the writ petition as according to them the petitioner is not aggrieved by the appointment of the respondent No. 2 as Chief Engineer.

As far as the locus of the present petitioner is concerned, the petitioner is a substantively appointed Superintending Engineer in the service cadre. Under the rules, it is a substantively appointed Superintending Engineer in service cadre who can be promoted to the post of Chief Engineer Level-II. Therefore, the petitioner is an aggrieved person and we find no reason to doubt his locus in the present matter. Consequently this objection is rejected.

As far as the discretion of Hon''ble Chief Minister to call respondent No. 2 for his "special skills" is concerned, we have not even an iota of doubt that the Hon''ble Chief Minister has such powers. The Hon''ble Chief Minister can always requisition services of a person if the same are required in public interest in Uttarakhand. All the same, such a person cannot be "inducted in service" in Uttarakhand, unless the Rules permit such an induction. The Rules governing the service condition of Engineers in Uttarakhand, certainly do not allow for such an induction by any method including by way of deputation, hence it is illegal.

We must also add that the petitioner has not challenged the deputation of respondent No. 2 as a Superintending Engineer, but we are of a clear opinion that this appointment too is in violation of the rules, as even a Superintending Engineer under Rule 5(ii) of the Uttar Pradesh Service of Engineers (Public Works Department) (Higher) Rules, 1990, as referred above, can only be appointed by way of promotion from amongst the substantively appointed Executive Engineers in the cadre of service in Uttarakhand. Since respondent No. 2 does not belong to the cadre of service of Uttarakhand, he could not have been appointed even on deputation as a Superintending Engineer.

Learned Additional Advocate General Shri V.B.S. Negi, who is appearing for respondent No. 1 and Shri Sharad Sharma, Senior Advocate who is appearing for respondent No. 2 have not been able to show before this Court any provision of law by which the respondent No. 2 could have been appointed by way of deputation as a Chief Engineer Level-II or as a Superintending Engineer in the State of Uttarakhand.

In view of the above observation, the writ petition succeeds. All the orders dated 17.9.2014 are hereby quashed.

Having made the above determination as above whereby we have held the appointment of respondent No. 2, not only as Chief Engineer or Chief Engineer Incharge or even a Superintending Engineer to be illegal we must clarify that we have not held the requisition of respondent No. 2 to be perse illegal. The State can always avail the benefits of the services of respondent No. 2, but not by appointing him on a cadre post in Uttarakhand cadre. No order as to costs.