Supreme Court of India

U.O.I. THROUGH GOVT. OF PONDICHERRY AND ANR.versusV. RAMAKRISHNAN AND ORS.

Citation: 2005 INSC 503
Decided: 7 October 2005
Disposal: Dismissed
Bench: S B SINHA

Holding

Valid recruitment rules made under the proviso to Article 309 continue in force until repealed; draft rules cannot be used for promotion, and a deputationist has no indefeasible right to remain in the post, rendering the appellant's promotion invalid and the government's regularisation order malafide.

Summary

The first respondent was appointed Chief Engineer of Pondicherry's Public Works Department on short‑term deputation pending a regular appointment under the 1996 Recruitment Rules. He was repatriated after eight months and challenged the repatriation before the Central Administrative Tribunal, which set aside the order. Meanwhile, the government framed draft rules reducing the experience requirement for Chief Engineer from five to three years and promoted the appellant, a Superintending Engineer with three years' experience, on an ad‑hoc basis. The appellant contended that the draft rules, later approved, should validate his promotion and that the first respondent had a right to remain in the deputed post until a regular appointment was made. The Supreme Court held that valid rules made under Article 309 remain operative until repealed, draft rules cannot be the basis for promotion, a deputationist has no indefeasible right to continue in the post, and the government's attempt to regularise the ad‑hoc promotion without a proper Departmental Promotion Committee was malafide and violative of Article 16. Consequently, the appeals were dismissed and the High Court judgment upheld.

Issues considered

Whether draft recruitment rules, not yet formally approved, can be used as a basis for promotion to the post of Chief Engineer.
Whether a deputationist has a legal right to continue in the deputed post pending regular appointment under Article 309.
Whether the promotion of the appellant on an ad‑hoc basis, relying on draft rules, is valid.
Whether the government's order to regularise the ad‑hoc promotion without a duly constituted DPC amounts to malice and violates Article 16.
Whether denial of an opportunity of hearing under CAT Procedure Rules 12 is a procedural violation.

Legislation cited

Administrative Tribunals Act, 1985
Central Administrative Tribunal (Procedure) Rules, 1987s. Rule 12
Constitution of Indias. Article 16, s. Article 309

Subjects

Recruitment RulesDeputationPromotionDraft RulesArticle 309Article 16EqualityMalice in lawCentral Administrative TribunalService law

Judgment

U.0.1. THROUGH GOVT. OF PONDICHERRY AND ANR. A
v.
V. RAMAKRISHNAN AND ORS.

OCTOBER 7, 2005

'
[S.B. SINHA AND R.V. RA VEENDRAN, JJ.] B

Service law:

Recruitment Rules, 1996-Post of Chief Engineer-Appointment of
claimant, on deputation pending sele~tion of regular incumbent by Competent C
Authority, thereafter Repatriation Order passed, and posted at other place-
Meanwhile, Draft Rules framed, eligibility criteria altered and five years
experience for the post reduced to three years-Promotion of Superintending
Engineer having three years of experience, on ad hoc basis-Appointment
challenged by claimant-Both the tribunal and the High Court upheld the D
claim-Plea of Superintending Engineer that Draft Rules were approved and
notice itas issued-On appeal held: Valid Rules made even though it becomes
unworkable continues to be in force unless repealed or replaced by another
rule or amended-Draft Rules cannot form the basis for grant of promotion,
when Rules to the contrary holds the field-Thus, till New Rules framed were
given effect to, promotion to the post of Chief Engineer could not be effected E
in derogation to the criteria prescribed under the existing rules-Hence, order
of tribunal and High Court upheld-Constitution of India, 1950---Article 309
proviso.

Government Services-Deputation-Deputationist, right of-Held: Has
no legal right to continue or to be absorbed in the deputed post, but there is F
no bar-Further, specified term of deputationist should not be curtailed except
on unsuitability or unsatisfactory performance-Also in case of non-specified
term, reversion can be questioned when it is malafide.

Constitution of India, 1950---Article 16-Equal opportunity in matters G
of public employment-Candidates with same qualificaiion-Govemment in
stead of asking the Authority to constitute Departmental Promotion Committee,
requesting it to regularize the services of an adhoc promotee from the date
of his promotion-Held: Is a malafide action on the part of the Government.

291 H
292 SUPREME COURT REPORTS [2005) SUPP. 4 S.C.R.

A The First Respondent was appointed to the post of Chief Engineer
of the Public Works Department of the Government of Pondicherry, on
short term deputation/ tern porary basis till a regular appointment was
made by UPSC. The appointment was made under the Recruitment Rules,
1996 governed by the Notification issued by the Government under the
B proviso to Article 309 of the Constitution of India. Within 8 months the
respondent was relieved from his duties and was repatriated to his parent
department. The first respondent filed application challenging the
repatriation order before the tribunal. The appellant in the connecting
appeal, who was Superintending Engineer with three years experience and
holding the current charge of the duties of the post of .Chief Engineer at
C that time challenged the deputation of the first respondent. The application
was dismissed since the appellant was not eligible to hold the said post
and regular appointment in terms of the Recruitment Rules was yet to
take place. Meanwhile, Draft Rules were framed and the eligibility criteria
of five years experience for the post of Chief Engineer was reduced to three
years and the appellant was promoted on adhoc basis. The First
D Respondent was posted as Director of Works (SR) at other place. Even
then he challenged the appointlpent and filed amendment application
before the tribunal and the same was allowed. Aggrieved, appellant filed
appeals. The High Court dismissed the appeals holding that the First
Respondent who was sent on deputation pending selection of the regular
E incumbent by the UPSC had a right to hold the said post till such time;
and the appellant was ineligible to be appointed as Chief Engineer tiH the
Draft Rules were approved. Hence the present appeals.

Appellants contended that the Draft Rules having been approved
wherefor an appropriate Notification had been ,issued and as the DPC is
F likely to hold its meeting at an early date, the application filed by the first
respondent became infructuous; that the High Court erred in not
considering the effect of the draft rules as in terms thereof the appellant
could have been considered; and that the appellant was not given
opportunity of filing a reply to the amendment application.

G Dismissing the appeals, the Court

HELD: 1.1. Valid Rules made under proviso appended to Article 309
of the Constitution of India even if it has become unworkable continues ·,
to be in force unless repealed or replaced by another rule or amended.
H The rules did not become inoperative only because the two scales of pay
U.O.L THROUGH GOVT. OF PONDICHERRYI'. V. RAMAKRISHNAN 293
- .,. of the Superintending Engineer and the Chief Engineer became same in A·
terms of revised pay scales. A rule does not become inoperative only
because the UPSC says so. As regard scale of pay, the matter should have
been referred to the anomaly removal committee. In terms of the new
rules, the criteria prescribed under the old rules were modified. Thus, till
the new rules were given effect to, no promotion to the post of Chief B
Engineer could be effected in derogation to the criteria prescribed under
the existing rules. Therefore, the draft rules could not form the basis for
grant of promotion, when Rule to the contrary is holding the field.
(301-C; 300-D-E)

Parshotam Lal Dhingra v. Union of India, (1958) SCR 828; Abraham
Jacob and Ors. v. Union of India, (1998) 4 SCC 65; Vimal Kumari v. State C
of Haryana and Ors., (1998) 4 SCC 114; High Court of Gujarat and Anr. v.
Gujarat Kishan Mazdoor Panchayat and Ors., (2003) 4 SCC 712 and Dr,
Rajinder Singh v. State of Punjab and Ors., (2001) 5 SCC 482, referred to.

1.2. The appellant was granted promotion on the basis of the draft D
rules which was given finality only during the pendency of the matter
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 with five years regular service in the grade could be promoted as E
Chief Engineer. (301-E, Fl

1.3. In terms of Article 16 of the Constitution, the employees similarly
situated cannot be discriminated. Employees having the same qualification
must be consi~ered by a duly constituted DPC consisting of the Chairman/
Member, UPSC, Chief Secretary and Secretary (Works). It is unfortunate F
that the Government of Pondicherry instead and in place of asking the
UPSC to constitute a DPC for consideration of the cases of all eligible
candidates, passed the order dated 28.9.2005 on which the new Rules came
into effect, requesting UPSC to regularize the services of the appellant as
Chief Engineer from the date of his ad hoc promotion. Such an act betrays
lack of bona jides on the part of a State which is required to be performed G
in a fair and reasonable manner. It smacks of favouritism. Having regard
to the unauthorized purpose for which the action has been taken, the same
would attract the principle of malice in law. (301-H; 302-A, B, CJ
Punjab State Electricity Board Ltd v. Zora Singh Ors., (2005) 6 SCC
776, relied on. H
294 SUPREME COURT REPORTS [2005) SUPP. 4 S.C.R.

A 1.4. The appellant was not 1:iven an opportunity of hearing in terms
of Rule 12 of the Central Administrative Tribunal (Procedure) Rules, 1987
framed under the Administrative Tribunals Act, 1985. But, it does not
appear from the judgment of the High Court that the appellant had taken
any such point before it. It was open to him to raise a specific question as
B regard violation of Rule 12 and denial of an opportunity of hearing.
(303-D]

2. Ordinarily, a deputationist has no legal right to continue in the
post. He has no right to be absorbed in the post to which he is deputed.
However, there is no bar thert?to as well. It may be true that when
C deputation does not result in absorption in the service to which an officer
is deputed, no recruitment in its true import and significance takes place
as he is continued to be a member of the parent service. When the tenure
· of deputation is specified, despite a deputationist not having an indefeasible
\
right to hold the said post, ordinarily the term of deputation should not
be curtailed except on the just grounds of unsuitability or unsatisfactory
D performance. But, even where the tenure is not specified, an order of
reversion can be questioned when the same is malafide. An action taken
in a post haste manner also indicates malice. (302-D, El

Bahadursinh Lakhubhai Gohi/ v. Jagdishbhai M Kamalia and Ors.,
E 12004] 2 sec 65, relied on.

Parshotam Lal Dhingra v. Union of India, (1958] SCR 828, referred
to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6332 of2005.

F From the Judgment and Order dated 11.8.2005 of the Madras High
Court in W.P. No. 24008 of 2005.
WITH
C.A. Nos. 6333-34 of 2005.

G G.E. Vahanvati, Solicitor General and V.G. Pragasam for the Appellant.

V.A. Bobde, K.V. Viswanathan, Atul Kumar Sinha and B. Ragunath
for the Appellants in C.A. Nos. 6333-34/2005.

P.P. Rao, Ms. Nalini Chidambaram, Ms.lndu Malhotra, Ms. Rafi and
H Vikas Mehta for the Respondents.
U.o.I. THROUGH GOVT OF PONDICHERR Yv. V. RAMAKRISHNAN [SINHA,J.] 295
The Judgment of the Court was delivered by A
S.8. SINHA, J. Leave granted.

The First Respondent herein was appointed on deputation as Chief
Engineer of the Public Works Department, Government of Pondicherry on
short term deputation/temporary basis pending selection of the regular B
incumbent by the Union Public Service Commission (UPSC) with effect
from 1.7.2004. He was repatriated to his parent department on 14.2.2005 and
relieved off from his duties on the same day. Questioning the same, an
original application was filed before the Central Administrative Tribunal on
25.2.2005 praying interlia therein:
c
"it is humbly prayed that this Hon'ble Tribunal may be pleased to
quash the order passed by the 2nd Respondent in No. A.22012/1/PW-
l/Al/2002 (Part) dated 14-2-05 as illegal and unconstitutional and
thl!i"' render justice."

R. Sundar Raju (Appellant in the connected appeal), Superintending D
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 E
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 F
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 these
circumstances, we are of the view that nothing survives in the relief G
sought for by the Appellant in this O.A. The interim orders are made
absolute. The O.A. is disposed of accordingly. No order as to costs."

In the meanwhile, draft rules were framed altering the eligibility criteria
as regard experience for the post in terms whereof the eligibility clause of H
296 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A five years experience was reduced to three years. R. Sundar Raju was promoted
on 27.04.2004 purely on adhoc basis.

The First Respondent, herein questioned the said appointment by filing
an application for amendment in the pending original application on 23.6.2005
·before the Central Administrative Tribunal which was registered as M.A. No.
B 258 of 2005 wherein he prayed for:
"It is prayed that this Hon 'ble Tribunal may be pleased to amend the
relief sought column in the main 0.A. and it may be read as that this
Hon'ble Court "may be pleased to set aside the promotion order of
the Fourth Respondent passed by the Government of Pondicherry in
c No. 473/PWl/Al/2005 dated 27-4-2005 and direct the restoration of
the applicant as Chief Engineer, Public Works Department,
Pondicherry and thus render Justice."

On or about 08.04.2005, R. Sundar Raju was recommended for
D promotion by the Departmental Promotion Committee to be promoted to the ,.
p6st ofChiefEnginer and by order dated 27.04.2005, he was promoted to the
said post purely on ad hoc basis. On or about 21.4.2005, the First Respondent
was posted by the CPWD, New Delhi as Director of Works (SR) Chennai.

The original application filed by the First Respondent was allowed by
E the Central Administrative Tribunal by an order dated 14. 7.2005. Both the
Appellants preferred appeals therefrom before the High Court of Judicature
at Madras and by reason of impugned judgment the said appeals have been
dismissed holding that as the First Respondent was sent on deputation pending
selection of the regular incumbent by the UPSC; till such regular selection is
made, he had a right to hold the said post. So long, the draft rules were not
F approved by the Competent Authority, viz., UPSC, it was opined, R. Sundar
Raju was ineligible to be appointed as Chief Engineer, Pondicherry.

The Appellants, aggrieved by the said judgment, are in appeal before
us.

G The learned Solicitor General and Mr. V.A. Bobde, learned senior
counsel appearing on behalf of the Appellants, at the outset would draw our
attention to the fact that the said draft mies 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
H
U.0.1. THROUGH GOVT. OF PONDICHERRYv. V. RAMAKRISHNAN [SINHA, J.] 297
Pondicherry by a letter dated 28.9.2005 addressed to the Secretary, UPSC A
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 B
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. C
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
repatriation, the First Respondent opted for posting at Chennai and having
__ been so posted, he was no longer entitled to pursue his claim to continue as D
Chief Engineer.

Mr. Bobde would further submit that if the prayer for amendment of
the original application was permitted without giving his client an opportunity ·
of filing a reply to which he was entitled to in terms of Rule 12 of the Central
Administrative Tribunal (Procedure) Rules, 1987 in terms whereof it was E
incumbent upon the Tribunal to give at least one month's time. It was submitted
that a prayer was made on behalf of the Appellant for an adjournment on the
ground that the senior counsel Mr. Vijayaraghvan was not well but the same
was rejected and the Tribunal proceeded to pass the impugned judgment on
11.7.2005.
F
Mr. P.P. Rao and Ms. Nalini Chidambaram, learned senior counsel
appearing on behalf of the First Respondent, on the other hand, would contend
that in terms of the Recruitment Rules, 'deputation' is a mode of recruitment.
Having regard to the fact that such appointment has not been made until now,
the First Respondent had a legal right to continue as Chief Engineer, in view G
of the decision of this Court in Parshotam Lal Dhingra v. Union of India,
[1958] SCR 828.

It was further submitted that as the original application filed by R.
Sundar Raju was dismissed on the ground that he was wholly ineligible, the
effect of the judgment could not be nullified by reason of the draft rules. Our H
298 SUPREME COURT REPORTS [2005) SUPP. 4 S.C.R.

A attention was drawn to the fact that the Appellant Government repatriated
and relieved the First Respondent on 14.2.2005 and the First Respondent ·-
approached the Tribunal on 25 .2.2005 and in that view of the matter, he
having been posted at Chennai, the order passed by the Tribunal cannot be
said to have been made on a representation made by the First Respondent
B herein as was sought to be contended. The said order was passed during the
pendency of the original application.

It was argued that it is not a case where the First Respondent wanted
to be permanently absorbed but his right to hold the said post for the term
he was appointed could not have been defeated. Deputation, it was submitted,
C being a tripartite arrangement, the same must meet the requirements of law.
In so far as the order of promotion of R. Sundar Raju dated 27.4.2005, Mr.
Rao, would contend that it was only a consequenti31l order and in 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
D 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 coun;el
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
E 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
F 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:
G "The Respondents refuted the claim of the applicant that he is eligible
to be considered for the post. They have averred that the Applicant
was appointed only on ad-hoc basis as Superintending Engineer with
effect from 26.11.200 I. Further, the departmental candidates in the
feeder category who ar~ in the direct line of promotion shall not be
H eligible for consideration for appointment on deputation. Therefore,
U.0.1. THROUGH GOVT. OF PONDJCHERRY v. V. RAMAKRISHNAN [SINHA, J .] 299

it is asserted that the Applicant does not have any cause of action to A
approach this Tribunal. Further, he cannot be a person aggrieved or
concerned with the appointment in question. Therefore, there is no
merit in the O.A. and is liable to be dismissed in limine."

It was further held:
B
" .. .This is particularly relevant in the context of this case. If the
above ·eligibility criteria are applied in the case of the Applicant in
this 0.A. it is obvious that he is not eligible to be considered for the
post of one of the following grounds, either by promotion or by
transfer on deputation."
c
Taking note of the eligibility criteria as laid down in the Rules, it was
observed:

"The Applicant was only holding the current charge of the duties of
the post of Chief Engineer which does not confer on him any right
to be considered for the post. Therefore, the avennents made by the D
Applicant that he is eligible and qualified for the post and that the
Respondents have not given wide publicity for filling up the vacancy
and statutory rules have not been followed have no basis."

The Tribunal, as noticed hereinbefore, directed the Respondents to follow
the Recruitment Rules as and when the post of Chief Engineer, PWD is filled E
up on regular basis. As would be noticed hereinafter, the Appellant has failed
even to keep it assurance before the Central Administrative Tribunal that the
revised recruitment rules would be adhered to strictly when the question of
filling up of the post of Chief Engineer on regular basis is taken up.

However, things began to take a different shape in a quick succession
F
from February, 2005. The First Respondent was relieved by the Government
of Pondicherry. No reason was assigned therefor. There is nothing to show
that the lending depfirtment was consulted. The draft rules were made. A so-
called DPC, composition· whereof has not been disclosed, was constituted
and R. Sundar Raju was sought to be promoted on adhoc basis by an order G
dated 27.4.2005 although he merely completed three years of service at that
point of time.

As has been noticed by this Court in Abraham Jacob and Ors., v.
Union of India, [1998] 4 SCC 65 and Vimal Kumari v. State of Haryana and
Ors., [1998] 4 SCC 114, such draft rules can be acted upon to meet urgent H
300 SUPREME COURT REPORTS [2005) SUPP. 4 S.C.R.

A situations when no rnle is operating.
In High Court of Gujarat and Anr v. Gujarat Kishan Mazdoor
Panchayat and Ors.. (2003] 4 SCC 712], it was observed:

"27. It is now trite that draft rules which are made to lie in a nascent
B 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)"

C 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
D pay of the Superintending Engineer and the Chief Engineer became same in
terms of revised pay scales. A rule does not become inoperative only because
the UPSC says so. A rule validly made even if it has become unworkable
unless repealed or replaced by another rule or amended, continue to be in
force. As regard, scale of pay, the matter should have been referred to the
E anomaly removal committee. In terms of the new rules, the criteria prescribed
under the old rules were modified. Thus, till the new rules were given effect
to, no promotion to the post of Chief Engineer could be effected in derogation
to the criteria prescribed under the existing rules.

In Dr. Rajinder Singh v. State of Punjab and Ors., (2001] 5 S~C 482,
F this Court held:
"5. It has not been disputed before us that on the relevant date when
Respondent 3 was recommended for promotion, he had not completed
10 years of service within the meaning of Rule 9-A read with Rule
2(2) of the PCMS Class 1 Rules. As Respondent 3 was not possessing
G the requisite qualifications on the relevant date, he could not be
considered for promotion to the post of Deputy Director, Health
Services."

It was further held :

H "7. The settled position oflaw is that no government order, notification
U.O.l. THROUGH GOVT. OF POND!CHERRYv. V. RAMAKRISHNAN [SINHA J.] 30 J

or circular can be a substitute of the statutory rules framed with the A
authority of law. Following any other course would be disastrous
inasmuch as it would deprive the security of tenure and right of
equality conferred upon the civil servants under the constitutional
scheme. It would be negating the so far accepted service jurisprudence.
We are of the firm view that the High Cpurt was not justified in
observing that even without the amendment of the Rules, Class II of B
the service can be treated as Class I only by way of notification.
Following such a course in effect amounts to amending the rules by
a government order and ignoring the mandate of Article 309 of the
Constitution."

Valid rules made under proviso appended to Article 309 of the
c
Constitution of India operates so long the said rules are not repealed and
replaced. The draft rules, therefore, could not form the basis for grant of
promotion, when Rules to the contrary is holding the field. It can safely be
assumed that the principle in Abraham Jacob (supra), Vimal Kumari (supra)
and Gujarat Kisan Mazdoor Panchayat (supra) that draft Rules can be acted D
upon, will apply where there are no rules governing the matter and where
recruitment is governed by departmental instructions or executive 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 E
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 F
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 G
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 H
302 SUPREME COURT REPORTS (2005] SUPP. 4 S.C.R.

A situated cannot be discriminated. Employees having the same qualification,
thus, must be considered by a duly constituted DPC consisting of the Chairman/
Member, UPSC, Chief Secretary and Secretary (Works). It is unfortunate that
the Government of Pondicherry in stead and place of asking the UPSC to
constitute a DPC for consideration of the cases of all eligible candidates,
passed the order (vide lefter dated 28.9.2005) on the same day on which the
B new Rules came into effect, requesting UPSC to regularize the services of R.
Sundar Raju as Chief Engineer from the date of his ad hoc prnmotion. Such
an act betrays a lack of bona jides on the part of a State which is required
to be performed in a fair and reasonable manner. It smacks of favouritism.
Having regard to the unauthorized purpose for which the action has been
C taken, the same would attract the principle of malice in law. [See Punjab
State Electricity Board Ltd. v. Zora Singh and Ors., (2005] 6 SCC 776].

Ordinarily, a deputationist has no legal right to continue in the post. A
deputationist indisputably has no right to be absorbed in the post to which he
is deputed. However, there is no bar thereto as well. It may be true that when
D deputation does not result in absorption in the service to which an officer is
deputed, no recruitment i.n its true import and significance takes place as he
·is continued to be a member of the parent service. When the tenure of
deputation is specified, despite a deputationist not having an indefeasible
right to hold the said post, ordinarily the term of deputation should not be
E curtailed except on such just grounds as, for example, unsuitability or .
unsatisfactory performance. But, even where the tenure is not specified, an
order of reversion can be questioned when the same is ma/a fide. An action
taken in a post haste manner also indicates malice. [See Bahadursinh
Lakhubhai Gohil v. Jagdishbhai M Kamalia and Ors., (2004] 2 SCC 65,
par!! 25]
F rt
Kuna/ Nanda v. Union of India and Anr., (2000] 5 SCC 362, relied
I '
upon by the leanJed Solicitor General, was a case where the petitioner therein
had asserted a claim for permanent absorption in the department.

The matter relating to appointment through the Government of
G Pondicherry Pub.lie Works Department Group "A" Post of Chief Engineer
Recruitment Rules, 1996 was governed in terms of a notification dated 11th
December, 1996.· The said notification was issued by the Government of
Pondicherry in exercise of its power under the proviso to Article 309 of the
Constitution of India. Rule 3 thereof prescribes that the method of recruitment
H thereto shall be as specified in columns 5 to 14 of the Schedule appended
U.0.1. THROUGH GOVT. OF PONDICHERRY v. V. RAMAKRISHNAN [SINHA, J) 303
thereto. In terms of the Schedule, the post of Chief Engineer was a selection A
post and one of the methods for recruitment as envisaged in Column 11
thereof is that the same post may be filled up by direct recruitment or by
promotion or by deputation/transfer. The said post could be filled up by
transfer on deputation in terms of Column 12 of the Scheduled appended
thereto. The appointment of the First Respondent in the said post was on B
short term deputation/temporary basis till a regular appointment is made.

In Parshotam Lal Dhingra (supra), it is categorically stated that when
an appointment is made for a specific period, unless any disciplinary
proceeding is initiated, a person will be entitled to hold the said post.

The Tribunal and the High Court, therefore, cannot be said to have C
committed any error in passing the impugned judgments.

It is true that R. Sundar Raju was not given an opportunity of hearing
in terms of Rule 12 of the Central Administrative Tribunal (Procedure) Rules,
1987 framed under the Administrative Tribunals Act, 1985. But, it does not D
appear from the judgment of the High Court that any such point had been
taken before it.. It was open to him to raise a specific question as regard
violation of Rule 12 and denial of an opportunity of hearing but he chose not
to do so.

Furthermore, the questions which were raised before the Central E
Administrative Tribunal and the High Court are pure questions of law. They
have been gone into both by the Tribunal and the High Court.

For the reasons aforementioned, we do not find any infirmity in the
judgment of the High Court. However, all the authorities concerned must see
to it that the selection process in accordance with law may be completed as F
expeditiously as possible. These appeals are dismissed with the aforementioned
observations. No costs.

N.J. Appeal dismissed.

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