Dipankar Datta, J. - (1.) - The two writ petitions being related were heard together and shall stand disposed of by this common judgment. The following facts do not appear to be disputed : The petitioner in W.P. No. 27 of 2008 (hereinafter Oommen) holds a degree in civil engineering. He was holding the post of Junior Engineer under the Andaman Public Works Department (hereinafter the A.P.W.D.). By an order dated 14.12.1999, he was promoted to the post of Assistant Engineer on purely temporary and adhoc basis for a period of one year. However, the tenure was subsequently extended by different orders. On successful completion of 12 years as Junior Engineer, Oommen got the benefit of first financial upgradation under the assurance career progression scheme with effect from 9.8.1999 vide office order dated 5.1.1999. He was placed in the scale of pay of RS. 6500-10500. For the purpose of filling up of Group 'A' and 'B' posts created for the Engineering Wing of the Panchayat Raj Institutions, the administration had requested the Chief Engineer, A.P.W.D. to forward names of eligible officers for appointment to the posts of Assistant Engineer, Executive Engineer and Superintending Engineer on promotion-cum-deputation for one year. The Chief Engineer, after circulation, forwarded the names of willing and eligible officers to the administration. On the basis of selection made by the administration from amongst willing and eligible officers, Oommen along with 10 other Junior Engineers of the A.P.W.D. were appointed as Assistant Engineers in the Zilla Parishad on the deputation for a period of one year. Such appointment was ordered by the Lieutenant Governor vide order dated 16.11.2001 with a direction to the Chief Engineer, A.P.W.D. not to fill up the resultant vacant posts of Junior Engineers in A.P.W.D. till a manpower study of A.P.W.D. and Zilla Parishad is conducted and a decision is taken. Tenure of Oommen, on deputation, was extended from time to time and he worked in the post for more than three years. By order dated 27.5.2005 issued by the Assistant Secretary (R.D. & P.R.) of the administration, the order of the Lieutenant Governor directing permanent absorption of Oommen along with one other Engineer in the posts of Assistant Engineer (Civil), in the pay scale of Rs. 6500-10500 against the post of Assistant Engineer (Civil), Zilla Parishad with immediate effect and on terms and conditions mentioned therein, was conveyed. Consequent to issuance of such order, the Chief Executive Officer. Zilla Parishad issued an order dated 1.6.2005 recording that Oommen having tendered his technical resignation from the post of Junior Engineer (Civil) of A.P.W.D. with effect from 27.5.2005 and having accepted the terms and conditions stipulated in administration's order dated 27.5.2005 for permanent absorption as Assistant Engineer, he was taken on the strength of Zilla Parishad as Assistant Engineer (Civil) with effect from 27.5.2005 in the pay scale of Rs. 6500-10500. Immediately after his absorption in the post of Assistant Engineer (Civil) in the Zilla Parishad, an order dated 21.7.2005 was issued by the Assistant Engineer (R.D. & L.S.G.) of the administration conveying the order of the Lieutenant Governor to appoint Oommen to the post of Executive Engineer, Zilla Parishad in the scale of pay of Rs. 10000-15200 on ad hoc basis for a period of one year with immediate effect. The order recorded that such ad hoc appointment would not bestow Oommen any right to claim seniority or for regular promotion to the post of Executive Engineer. However, his pay would be fixed under normal rules. The tenure of Oommen to serve in the post of Executive Engineer in the Zilla Parishad was subsequently extended by order dated 3.1.2006 with effect from 21.7.2006 and order dated 23.10.2007 with effect from 21.7.2007. However, his tenure to serve the post of Executive Engineer has not been extended after 21.1.2008. While the aforesaid extensions were being granted, a question has been raised before the administration regarding eligibility of Oommen to serve in the post of Executive Engineer (Civil) and ultimately the administration, by a letter dated 30.10.2007, had requested the Zilla Parishad to take steps for filling up the post of Executive Engineer on regular basis. In the meantime, the Chief Secretary, Andaman and Nicobar Administration had constituted a committee with the Chief Engineer, A.P.W.D. as the Chairperson to examine the policy adopted for the A.P.W.D. engineers on transfer to Panchayati Raj Institutions vide order No. 1020 dated 19.3.2007. A report dated 5.5.2007 was prepared by the said committee and forwarded to the administration. It contained the following recommendations : (a) At present except A.P.W.D. the staffs of all other departments such as agriculture, electricity, industry, fisheries etc. are on transfer to P.R.I. as per the P.R.I. Regulations, 1994 under section 157/4 (page No. 26). (b) Since 2001 the Zilla Parishad created 40 Junior Engineers by reducing the strength of A.P.W.D. vide Admn. Office order No. 560 dated 6.2.2007 (page Nos. 9 and 10). (c) 11 Junior Engineers of A.P.W.D. were appointed on deputation in Zilla Parishad as Assistant Engineer; 2 Assistant Engineers on deputation were appointed as Executive Engineers and 1 Executive Engineer on deputation as Superintending Engineer. (d) As per the administration office order No. 06 dated 2.1.2006 the posts of 28 Junior Engineers, 09 Assistant Engineers, and 03 Executive Engineers of A.P.W.D. were transferred on lateral entry to the same post in Zilla Parishad. The transferred Engineers are yet to be relieved (page No. 14). (e) During 2005 two of the A.P.W.D. Junior Engineers who were on deputation were absorbed as Assistant Engineers in Zilla Parishad. Their services are still available as Junior Engineers in A.P.W.D. (page Nos. 11, 12 and 13.) (f) At present Zilla Parishad will have three categories of Engineers under them (a) A.P.W.D. Engineers on deputation to Zilla Parishad (b) Recruited Junior Engineers against the posts transferred from A.P.W.D. (c) A.P.W.D. Engineers on transfer as lateral entry. The P.R.I. Regulations, 1994 under section 157/4 of Zilla Parishad provide for posting of officials of required categories by the administration. This does not provide any power for recruitment to Zilla Parishad. In view of the above question of recruitment of Junior Engineers, absorption of technical staffs in higher posts in Zilla Parishad does not arise. To have a balanced policy it is essential that the various cadres of Engineers in Zilla Parishad are posted from A.P.W.D. on lateral entry basis. The existing Engineering Staffs in Zilla Parishad recruited or otherwise are to be merged with that of A.P.W.D. to have a uniform policy on transfer. Submitted for approval please." The recommendations of the said committee was reviewed by the Chief Secretary on 14.12.2007 and a committee has again been constituted with the Secretary (Personnel) as the Chairperson vide order dated 16.1.2008 The newly constituted committee held three rounds of meetings but its recommendation is awaited. Pertinently, the Lieutenant Governor in purported exercise of power conferred by the proviso under Article 309 of the Constitution of India read with Government of India notifications dated 21.2.1985 and 18.3.1988 and with the approval of the Union Public Service Commission, New Delhi framed rules regulating the method of recruitment to the Grade 'A' post of Executive Engineer (Civil) borne in the establishment of the Zilla Parishad under the Panchayati Raj Institutions of Andaman and Nicobar Islands titled "Andaman and Nicobar Administration, Executive Engineer (Civil), Zilla Parishad in Panchayat Raj Institutions Group 'A'. Recruitment Rules, 2003" (hereinafter the said Recruitment Rules). In terms of Clause 11 of the schedule appended thereto, recruitment to such posts has to be made only by deputation. Clause 12 of the schedule lays down the qualifications relating to education, experience and age which a prospective candidate is required to fulfil for being posted on deputation to the post of Executive Engineer (Civil). Since the post of Executive Engineer (Civil) in terms of the said Recruitment Rules could not be filled up by promotion and had to be filled up only by deputation from amongst officers serving the administration and that too for the period mentioned in Clause 11 thereof, the Zilla Parishad adopted a resolution in its meeting held on 3.12.2007 to propose amendments in the said Recruitment Rules to enable filling up of 50% of posts of Assistant Engineer, Executive Engineer and Superintending Engineer by promotion and the remaining 50% by deputation. A proposal to such effect was forwarded to the administration by the Chief Executive Officer, Zilla Parishad aide his letter dated 27.12.2007 but no final decision has been taken thereon. Oommen also submitted a representation for effecting amendment in the said Recruitment Rules so that an avenue for his promotion to the post of Executive Engineer (Civil) may be opened on the same line as suggested by the Zilla Parishad. Feeling aggrieved by the inaction of the administration to effect amendment in the said Recruitment Rules so as to provide an avenue for promotion to the post of Executive Engineer (Civil) from amongst Assistant Engineers like himself employed in the Zilla Parishad. Oommen preferred W.P. No. 27 of 2008 on 18.1.2008, praying, inter alia, the following relief(s) : "(A) (i) A writ in the nature of mandamus directing the respondent authorities to issue a declaration declaring the Rule 11 of the Andaman and Nicobar Administration Executive Engineer (Civil), Zilla Parishad in Panchayat Raj Institution Group 'A' Recruitment Rules, 2003 is ultra vires Article 16 of the Constitution of India. (ii) A direction commanding the respondent to open an avenue of promotion from the post of Assistant Engineer (Civil) to the higher post of Executive Engineer (Civil). (iii) A direction that the writ petitioners should not be allowed to be stagnated at Assistant Engineer (Civil) for long and thereby deprive the petitioner the post of Executive Engineer (Civil) on regular basis. (B) A writ in the nature of certiorari directing the respondents and each of them to transmit the original records of this case before this Hon'ble Court so that after perusing the same conscionable justice may be rendered." An application for amendment of the writ petition had been filed by Oommen in course of hearing of his petition by this Court. The same was allowed by order dated 12.11.2008. He sought to urge additional grounds in support of the following prayers : "B (1). A declaration to issue declaring the Regulation 202 (2) (ba) of the Andaman and Nicobar Islands Panchayat Raj, 1994 unconstitutional, ultra vires Part VIII of the Constitution and be struck down by this Hon'ble Court. B (2). A declaration to issue declaring the Regulation 202 (2) (ba), 157 (6) are ultra vires and be struck down by this Hon'ble Court. B (3). A declaration do issue declaring the Andaman and Nicobar Administration Executive Engineer (Civil), Zilla Parishad Panchayat Raj Institution, Group A Recruitm,-.it Rues, 2003 ultra vires under Article 309 of the Constitution of India and therefore unconstitutional."
(2.) W.P. 93 of 2008, filed on 18.3.2008, is at the instance of an unregistered association formed on 28.1.2008. The petition does not disclose with any degree of clarity as to who are the members of the petitioner association. However, the relief claimed therein is as follows : "(A) A writ of mandamus and/or writ in the nature thereof commanding the respondent authorities and each one of them : (in) to do and to proceed in accordance with law; (ii) To direct the respondent Nos. 1, 4 and 5 to accept the report of the study committee dated 5.5.2007; (iii) To direct the respondents particularly, the A and N Administration to treat the staff posted/transferred to the Zilla Parishad at par with the staff posted/ transferred from A.P.W.D. in so far as iving financial benefits strictly in terms of Regulations 1191(2) and 157 (4) of the said Regulation, 1994. (iv) To direct the respondents to treat the entire staff posted /transferred to the Zilla Parishad at par on diverted capacity in terms of the 157 (4) and 119 (2) of the said Regulation, 1994. (B) A writ of certiorari be issued commanding the respondent authorities and each one of them to transmit all the records relating to the present proceeding particularly, for giving conscionable justice to the present petition and also for the purpose of passing appropriate orders in this regard and or quashing the order, if any, affecting the interest of the petitioner."
(3.) Mr. Bandopadhyay, learned Senior Counsel appearing for Oommen, advanced the following arguments : In the first place he urged that in terms of the proviso to Article 309 of the Constitution, it is only the President and the Governors of States who have been empowered to frame rules concerning recruitment to services and posts in connection with the affairs of the Union and of the States until provision in that behalf is made by or under an Act of the appropriate legislature. The Lieutenant Governor of the Andaman and Nicobar Islands, which is a Union Territory, is an administrator appointed by the President in terms of Article 239 of the Constitution and he cannot be equated with a Governor appointed for a State in terms of Article 153 of the Constitution. The Lieutenant Governor has no power under Article 309 of the Constitution to frame rules for recruitment to services under the Panchayati Raj Institutions in these Islands and framing of the said Recruitment Rules by the Lieutenant Governor, as if he is a Governor of the State, drawing power under Article 309 is illegal; hence the said Recruitment Rules are ultra vires the Constitution. It was next urged by him that even assuming that the Lieutenant Governor has been empowered under the Constitution to frame rules under Article 309 of the Constitution, such power being confined only to service or posts in connection with the affairs of the Union and the State(s) cannot be exercised in case of services under a local authority. He relied on the decision of the Allahabad High Court in Vijay Kumar Pandey v. State of U.P. and others, 2008 Lab IC 1678 wherein it has been held that the Governor of a State can not frame rules under Article 309 for employees of a Zilla Panchayat. Thirdly, it was contended that none of the provisions contained in Part VIII of the Constitution empower the President of India to delegate his power to make legislation conferred by Article 240 thereof and therefore the Andaman and Nicobar Islands (Panchayat) Regulations, 1994 (hereinafter the said Regulations), made by the President in exercise of power conferred by Article 240 (1) of the Constitution, to the extent it delegates power to the Lieutenant Governor to frame rules thereunder, is also unconstitutional as it suffers from lack of legislative competency. As a corollary, it was contended by him on the basis of the provisions contained in Chapter VIII of the Constitution that the Lieutenant Governor has no power to legislate and therefore law framed by him in relation to recruitment being the said Recruitment Rules also suffers from lack of legal competency and thus cannot be sustained in law. The decision in S. Samuel. M.D., Harrisons Malayalam and another v. Union of India and others, (2004) 1 SCC 256 was referred to on the point of extent of legality of legation of statutory power. Paragraph 23 of the said decision was heavily relied on wherein the Apex Court referred to a passage from administrative law by Wade and Forsyth. It was faintly urged by him that the said regulations though empower the Lieutenant Governor to constitute service for the Zilla Parishad as may be prescribed meaning thereby that the Lieutenant Governor may constitute such service but the regulations itself do not confer power on the Lieutenant Governor to prescribe the terms and conditions of constitution of such service for the Zilla Parishad by making regulations and in view thereof Regulation 202 (2) (ba) of the said regulations is ultra wires Regulation 157 (6) thereof, and Articles 14 and 16 of the Constitution. According to him, power of prescription in terms of Regulation 157 (6) of the said Regulations has not been conferred on the administrator which ought to have been delegated by the President by the said Regulations. Next, he contended that Oommen having been absorbed in the post of Assistant Engineer (Civil) in the Zilla Parishad and his resignation from the post of Assistant Engineer of the A.P.W.D. having been accepted, employer-employee relationship between the A.P.W.D. and Oommen has snapped and therefore there is no scope to revert him back to the A.P.W.D. The recommendations made by the committee dated 5.5.2007 or any other decision if proposed to be taken by the administration on the basis of the recommendation of the newly constituted committee cannot thus be made operative to the prejudice and detriment of Oommen who is now beyond the administrative control of the A.P.W.D. Finally, it was urged by him that the said recruitment rules which omits to provide an avenue for promotion of an incumbent in the post of Assistant Engineer (Civil) like Oommen to the post of Executive Engineer (Civil) suffers from unreasonableness. According to him, law is well settled that promotion is a condition of service and that a State employer is constitutionally obliged to create promotional avenues. Reliance was placed on the decision in State of Tripura and others v. K.K. Roy, 2004 (14) AIC 594 (SC) : 2004 (100) FLR 201 : AIR 2004 SCW 1 ; Food Corporation of India and others v. Parashotam Das Bansal and others, 2008 Lab IC 130 and A. Satyanarayana and another v. S. Purushotham and others, AIR 2008 SCW 3282 in support of the proposition that absence of promotional avenue offends Article 16 of the Constitution. The decision in K.K. Roy (supra) and the decision in Nar Singh Pal v. Union of India and others, (2000) 3 SCC 588 were also relied on for the principle that an incumbent on acceptance of terms and conditions of offer of appointment knowing fully well that there was no promotional avenue does not lose his right to ventilate his grievance since principle of waiver and estoppel would not apply to a constitutional functionary and that fundamental rights guaranteed by the Constitution cannot be bartered away. For the proposition that constitutional validity of an Act can be challenged on two grounds, viz. (i) lack of legislative competence; and [ii) violation of any of the fundamental rights guaranteed in Part III of the Constitution or any other constitutional provisions. The decision in Public Services Tribunal Bar Association v. State of U.P. and another, 2003 (3) AIC 37 (SC) : 2002 (96) FLR 1048 : (2003) 4 SCC 10 was referred to. Based on the above points, he contended that the said Recruitment Rules being absolutely arbitrary, illegal and unconstitutional, the post of Executive Engineer (Civil) in the Zilla Parishad ought not to be filled up in accordance therewith and that while declaring Clauses 11 and 12 of the Schedule appended to the said Recruitment Rules ultra vires the Constitution. Re ulation 202 (2) (ba) of the Regulations read with Regulation 157 (6f thereof also ought to be declared unconstitutional and the respondent authorities ought to be directed to frame rules in accordance with law providing for an avenue of promotion to Oommen from the post of Assistant Engineer (Civil) to the higher post of Executive Engineer (Civil). Before concluding, he also contended that the respondent No. 6 being an unregistered association has no locus standi to sue or to be sued. The order dated 4.4.2008 passed by the learned Single Judge allowing the application for addition of party being erroneous, this Court ought to correct the mistake in exercise of its inherent power and expunge the respondent No. 6 from the array of parties.;