TaxTMI 
TaxTMI 
2005 (10) TMI 542
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....I/PW-1/A1/2002 (Part) dated 14-2-05 as illegal and unconstitutional and thus render justice." R. Sundar Raju (Appellant in the connected appeal), Superintending Engineer, having three years experience, who was holding the current charge of the duties of the post of Chief Engineer at that time, in the meanwhile had filed an application questioning the deputation of the First Respondent herein. In the said original application, Government of Pondicherry inter alia raised a contention that he was not eligible to hold the post of Chief Engineer as he did not fulfill the eligibility criteria therefor. The said original application was dismissed on the ground of ineligibility to hold the said post and, a furthermore regular appointment in terms of the Rules was yet to take place. It was directed: "We have already given a limited direction to the Respondents when the O.A. was entertained, to follow the Recruitment Rules as and when the post of Chief Engineer, PWD is filled up on regular basis. The Respondents have also assured that the Recruitment Rules will be revised and adhered to strictly when the question of filling up of the post of Chief Engineer on regular basis is taken up. In....
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....t the outset would draw our attention to the fact that the said draft rules had since been approved wherefor an appropriate notification has been issued on 28.9.2005. Our attention has further been drawn to the fact that Government of Pondicherry by a letter dated 28.9.2005 addressed to the Secretary, UPSC requested it to regularize the services of the Chief Engineer from the date of his adhoc promotion. It was contended that the Departmental Promotion Committee (DPC) constituted in terms of the said Rules would hold its meeting at an early date. The learned Solicitor General would submit that the First Respondent herein had no legal right to hold the said post of the Chief Engineer of PWD in the Government of Pondicherry and that having regard to the fact that the Rules have now been approved and as the DPC is likely to hold its meeting at an early date, the prayers made in the original application for all practical purposes have become infructuous. It was submitted that the High Court committed a manifest error in not considering the effect of the draft rules as in terms thereof the candidature of R. Sundar Raju could have been considered. It was also contended that on repatria....
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....that view of the matter it was not necessary to set out the grounds therefore separately. It was argued that although the UPSC asked the Government of Pondicherry to amend the rules in view of the fact that the Post of Superintending Engineer and the Chief Engineer carry the same scale of pay upon revision thereof, the remedy therefor was to send the matter to anomaly removal committee and not to amend the rules. The UPSC, the learned counsel would contend, did not say that the eligibility criteria should be changed. The action of the Government of Pondicherry must be held to be illegal as by its letter dated 28.9.2005 a request was made to regularize the services of the Chief Engineer from the date of his ad hoc promotion. Furthermore, new Rules cannot be given a retrospective operation. The fact of the matter, as noticed hereinbefore, depicts as to how sometimes the public functionaries of the Government function. R. Sundar Raju, according to the Appellant, is said to have been appointed as Superintending Engineer on ad hoc basis. The Central Administrative Tribunal in its order dated 31.8.2004 passed in Original Application No. 581 of 2004 noticed: "The Respondents refuted ....
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....three years of service at that point of time. As has been noticed by this Court in Abraham Jacob and Others Vs. Union of India [(1998) 4 SCC 65] and Vimal Kumari Vs. State of Haryana and Others [(1998) 4 SCC 114], such draft rules can be acted upon to meet urgent situations when no rule is operating. In High Court of Gujarat and Another Vs. Gujarat Kishan Mazdoor Panchayat and Others [(2003) 4 SCC 712], it was observed: "27. It is now trite that draft rules which are made to lie in a nascent state for a long time cannot be the basis for making appointment or recommendation. Rules even in their draft stage can be acted upon provided there is a clear intention on the part of the Government to enforce those rules in the near future. (See Vimal Kumari v. State of Haryana)" But, therein the question as to whether a draft rules can constitute a valid rules or not, did not arise for consideration either in Gujarat Kisan Mazdoor Panchayat (supra) or in Abraham Jacob (supra) and Vimal Kumari (supra). The rules did not become inoperative only because the two scales of pay of the Superintending Engineer and the Chief Engineer became same in terms of revised pay scales. A rule does not b....
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....xecutive orders under Article 162 of the Constitution of India. Indisputably R. Sundar Raju was granted promotion on the basis of the draft rules which was given finality only during the pendency of the matter before before this court. Furthermore, the new rules framed in terms of proviso appended to Article 309 of the Constitution of India as per notification dated 28.9.2005 has not been given a retrospective effect. By reason of the said rules, the Superintending Engineer having a scale of pay of Rs. 12,000-16,500 can be promoted as Chief Engineer. The eligibility criteria for promotion is laid down in clause 12 of the Schedule to the Rules in the following terms: "Promotion: Superintending Engineer (Rs. 12,000- 16,500) with five years regular service in the grade, failing which Superintending Engineer with ten years of combined regular service in the grade of Superintending Engineer and Executive Engineer out of which at least one year regular service should be in the grade of Superintending Engineer." In terms of Article 16 of the Constitution, the employees similarly situated cannot be discriminated. Employees having the same qualification, thus, must be considered by a d....