- (1.) Leave granted. What is involved in this appeal is the interpretation of Resolution No. 105 of the respondent-Delhi Development Authority ('DDA' for short) passed on 16th June, 1971. The relevant portion of the Resolution reads as follows: "Resolved that the same rules of promotion should be made applicable in the DDA as are in vogue in the Central PWD and no consideration for private service would be allowed.
(2.) The first appellant is an Association of the graduate Engineers and appellants 2 to 4 are members of the said Association and are at present employed as Assistant Engineers in the DDA. Respondents 4 to 12 are the diploma-holder engineers and are at present employed as Executive Engineers in the DDA. According to the appellants, under the Central Engineering Service, Class 1, Recruitment Rules, 1954 (hereinafter referred to as '1954 Rules') no Assistant Engineer who is a diploma-holder is qualified to be promoted to the post of Executive Eingeer. This, they contend, is the result of reading together of Rules 3, 4, 13 and 23 of the 1954 Rules. Since this position arising out of the 1954 Rules is not disputed before us on behalf of the respondents, it is not necessary to reproduce them here. However, it is contended on behalf of the respondents that for the promotion to the post of Executive Engineer in the DDA, what were made applicable by the said 1974 Resolution were the instructions contained on the subject in the Manual as applicable to the Central Public Works Department. According to paragraph 13 of Section 7 (dealing exclusively with promotions) of Volume I of the said CPWD Manual, (1970 Edition), diploma-holder, Assistant Engineers are eligible for promotion to the post of Executive Engineer if they have put in 10 years service in the Grade as against Graduate Engineers who have to put in 8 years' qualifying service for being entitled to the said post. The said paragraph 13 reads as follows: "13. In case of Executive Engineers, the Departmental candidates promoted from the lower rank of Sectional officer to Class II Servcies of Assistant Engineers are also to be considered along with Class I and II directly recruited Officers in ratio of 1 : 2. The eligibility criteria is as under: (i) Assistant Executive Engineers (Direct Recruit Class I) - 5 years in the grade. (ii) Assistant Engineers (Direct Recruits Class II) - 8 years service in the grade. (iii) Assistant Engineers (Promotees Class II) (a) Graduates - 8 years service. (b) Diploma Holders - 10 years service in the grade. (c) Unqualified - 10 years service in the grade with outstanding record."
(3.) On behalf of the appellants, it is no disputed that if the aforesaid paragraph 13 of the CPWD Manual has a valid application diploma-holder Assistant Engineers would be eligible to be promoted to the post of Executive Engineer. However, Shri Rama murthy on their behalf contended that the CPWD Manual cannot override 1954 Rules and the 1971 Resolution passed by the DDA speaks of the Rules and not of the instruction contained in the Manual. It was also contended by him that it is not shown by the respondents as to how the said paragraph 13 had modified the 1954 Rules. Neither the Government resolutions nor any other document has been produced to support the encroachment made by the said paragraph 13 on the 1954 Rules. He also pointed out to us that the Central Administrative Tribunal, Principal Bench, New Delhi in its judgment in O.A. No. 704 of 1988 had on l3th April, 1990 struck down the added proviso to sub-rule (3) of R. 23 of 1954 Rules as being arbitrary and discriminatory. The said amended proviso read as follows: "Provided that the Government, in consultation with the Commission, may promote an Assistant Engineer of outstanding ability and record, to Class I Service in relaxation of the educational qualifications provided in clause (a)." While doing so in paragraph 16 of its judgment, the Tribunal observed as follows: "16. In the facts and circumstances of the case, we are of the view that the proviso under R. 21(3) (sic) is arbitrary and discriminatory. The proviso, therefore, requires to be substituted by a rational and just criterion e.g., holding of a qualifying test for diploma holder AEs, annually or as may be necessary, to obviate the element of arbitrariness and make the rule reasonable. Those who qualify in such a departmental test should be considered along with graduate AEs for promotion to the next higher grade by the DPC by following the normal procedure." He submitted that this judgment has become final. According to the Tribunal, therefore, the diploma-holder Assistant Engineers would be eligible to be promoted to of the post of Executive Engineer only if they qualify in a departmental qualifying test, if beheld, as suggested by it to obviate the element of arbitrariness. Relying on the said observation, Shri Ramamurthi submitted that but for the said added proviso the diploma-holder Assistant Engineers were not eligible for promotion to the post of Executive Engineer, at all.;