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Judgment
V.S. Sirpurkar, J.—Central Government comes before us by way of a challenge to the order of the Central Administrative Tribunal (in short
''the Tribunal'') only in so far as it pertains to the observations made by the Tribunal in paragraphs 5 and 6 of its order. By these observations, the
Tribunal has held that the method of recruitment for the two posts of Regional Director, earmarked for the officers from the Engineering stream,
was discriminatory and, therefore, struck down the method of recruitment for the two posts with the further direction that the recruitment to the
posts of Regional Director meant for the Engineering stream should be done only by promotion from the feeder category of Superintending
Engineers posted in Central Ground Water Board (CGWB).
The original applicant/second respondent herein had filed the aforementioned original application before the Tribunal and had contended therein
that he was working as a Superintending Engineer since July 1987 and he was the senior-most Superintending Engineer in the respondent Board.
He pointed out that there was a Flexible Complementing Scheme with the aid of which, persons who had held the post of Scientists D could go to
the next higher grade irrespective of the availability of the vacancy in the next higher grade and they would keep on discharging the duties meant for
the posts in the lower grade. However, they were to be benefited with the salary in the next higher grade. The further contention was that this
benefit of Flexible Complementing Scheme was denied to the persons like the respondent herein, who were from the Engineering stream in
contradistinction to the officers from the Scientific stream.
It was pointed out that the Scientific stream was created for the first time by the Central Ground Water Board (Regional Directors) Recruitment
Rules (in short ''the Rules'') by the respondent Board and the officers from the Scientific stream were chosen for a favourable treatment in the
matter of promotion. It was further alleged that the said rules were ultra vires Articles 14 and 16 of the Constitution of India. In the original
application before the Tribunal, the applicant sought the following prayers:
(a) the Hon''ble Tribunal be pleased to declare the Central Ground Water Board (Regional Director) Recruitment Rules, 1996 ultra vires Articles
14 and 16 of the Constitution; and
(b) the Hon''ble Tribunal be pleased to award costs of this application to the applicant.
In so far as the interim relief was concerned, the following was the prayer:
the Hon''ble Tribunal be pleased to stay the operation and further implementation of the Central Ground Water Board (Regional Director)
Recruitment Rules, 1996.
It is an admitted position that after the original application was entertained by the Tribunal, there was no stay order granted. The basis of the
applicant''s contention, which appears from ground (a) to (f), was that he was denied the next promotion from the post of Superintending Engineer
to the post of Regional Director.
We have scanned the grounds to find that no particular rule was in any manner challenged before the Tribunal. What was tried to be highlighted
was that the officers from the Scientific stream and the officers from the Engineers stream were being treated differently inasmuch as while the said
scheme was made applicable to the officers from the Scientific stream and in the process they were benefited, the scheme was not made available
to the officers who came from the Engineering stream like the original applicant. In ground (e), it was stated that though the employees in the pay
scale of Rs.4100-5300 were made eligible under the rules for consideration for promotion to the post of Regional Director, no engineers were
working in the Board in the said pay-scale and, therefore, it would be only the outsiders who would be considered for the said promotion leaving
aside the officers from the Engineering stream in the respondent Board and thereby their promotion chances were completely wiped out. This,
according to the original applicant, also resulted in hundred per cent promotional avenues becoming available to the officers from the Scientist
stream but no promotional avenues being available to the officers from the Engineering stream. In short, the whole dispute was about the promotion
of the respondent to the post of Regional Director.
During the pendency of the original application, however, the original applicant was selected to the promotional post of Regional Director, which
is reflected from paragraph 16 of the counter. This promotion was on the basis of the advertisement floated by the Union Public Service
Commission for which the respondent applied and was ultimately selected in the general post. In fact, the selection of the original applicant to the
post of Regional Director should have been the end of the matter because by that selection his all the prayers were answered favourably. Under
the circumstances, there was no reason for the Tribunal to proceed with the application or to examine the constitutionality of the rules. However,
the Tribunal, by its order, which is impugned before us, struck down a particular provision in the rules regarding the promotion whereby it was
provided that the two posts of Regional Director earmarked for the officers from the Engineering stream could be filled in by promotion/transfer on
deputation (including short-term contract). The Tribunal has made an observation that the rule which pertained to the filling up of the two posts of
Regional Director earmarked for the Engineering stream was bad in so far as it provided for the appointment of the concerned officer by transfer
on deputation (including the short term contract). According to the Tribunal, this could have resulted in the loss of opportunities to the officers from
the Engineering stream for whom only two posts were earmarked out of sixteen posts. It is an admitted position that under the rules fourteen posts
were earmarked for the officers from the Scientific stream and they could be filled in only by the officers with five years of regular service in the
Scientists D grade whereas in so far as the two posts earmarked for the Engineering stream was concerned, it could be filled in only by
promotion/transfer on deputation (including short term contract). The Tribunal found fault with this.
The Central Government and the Central Ground Water Board, feeling aggrieved by these observations of the Tribunal made in paragraphs 5
and 6 of this order, come up before us by way of this writ petition.
Learned Central Government Standing Counsel points out that it was wholly unnecessary for the Tribunal to have entered into the arena of
constitutionality of the concerned rule particularly when there was no occasion or a cause of action for doing so. We have been taken through the
whole application and we find that the only prayer made is for declaring the whole rules unconstitutional, without there being any consequential
prayer for promotion. It is for this purpose that we have quoted the prayer completely. This is apart from the fact that during the pendency of the
original application, the second respondent herein was actually promoted to the post of Regional Director. Once he was promoted, there was no
question of any challenge remaining because it is a trite position in law that the courts do not go into the question of constitutionality of the rules or
any enactment in vacuum. The whole original application had become infructuous because of the promotion of the second respondent herein
because that was the sole objective with which the application was filed. Once that promotion was granted, there was no question of entertaining
the challenge to the constitutionality of the said rules. There was no question of ''deemed date'' because obviously a promotion cannot be a matter
of right and unless the posts by way of promotion became available, there could not have been appointments of either the second respondent
herein or any one else. It is not the case of the second respondent before the Tribunal that he was side-stepped by some one else brought by way
of transfer on deputation on the basis of the challenged rule to occupy the post of Regional Director. The Tribunal had found that the challenge in
so far as the discriminatory attitude to the officers from the Scientific stream was concerned, it could not be upheld and that there were two clear
categories of officers, i.e. officers from the Scientific stream and officers from the Engineering stream. The Tribunal, therefore, upheld the
constitutional validity of the rules but while doing so, the Tribunal has gone into the question of validity of the particular provision in the rules
pertaining to the promotion of the officers from the Engineering stream to the post of Regional Director, i.e. filling up of the said posts by
Promotion/Transfer on Deputation (including short term contract). In our view, the Tribunal could not have gone into that question more
particularly because the respondent was already promoted. It was, therefore, an academic finding and such academic finding in the matter of
constitutional validity of any rules or enactment has always to be avoided and that is the trite law.
Even otherwise, we cannot agree with the Tribunal''s rationale in finding fault with the rules. After all, these rules had the sanction of Art. 309 of
the Constitution of India. If it was the policy of the Government to fill up the posts of Regional Directors by promoting the concerned officers or by
bringing them from outside by way of transfer on deputation, no fault could be found with it. For that reason alone, the rules could not have been
found to be unconstitutional. There was no question of any discrimination or arbitrariness shown in framing of these rules; nor was anything
contended to suggest that the concerned authority did not have the legislative competence to frame the rules. We do not know as to how the
concerned provision in the rules was found fault with on the ground that it would jeopardise the promotional prospects of the officers like the
second respondent herein.
Learned Central Government Standing Counsel points out that at that time enough number of officers were not available for promotion at all
because even for the purposes of promotion, the authorities had to consider the cases of at least five persons per post. According to the learned
standing counsel, at that time there were only four persons available and, therefore, there could not have been a process of promotion.
We entirely agree with the contention of the learned Central Government Standing Counsel and in that view, we would set aside the order of
the Tribunal to the extent it has been assailed. The Tribunal has not given any good reason for declaring the part of the particular rule to be
unconstitutional. Merely because the rule enables the Government to fill up the two posts of Regional Director earmarked for the officers from the
Engineering stream by bringing the officers on transfer on deputation, the rule cannot be viewed as an arbitrary or discriminatory rule. In that view,
we set aside the order of the Tribunal to the extent that it has been assailed.
The writ petition succeeds to the extent that we have indicated above. Rule is made absolute.