Holding

Executive orders must be passed in conformity with the statutory service rules; the impugned office orders were ultra vires and therefore invalid.

Summary

The Central Public Works Department issued office orders on 1 August 2002 and 11 March 2003 that reorganised zones by placing civil, electrical and mechanical cadres under a Chief Engineer (either civil or electrical), effectively creating a post that merged distinct services. The respondents challenged the validity of these orders, arguing they were beyond the statutory service rules. The Central Administrative Tribunal held the orders unsustainable, a decision affirmed by the Delhi High Court. On appeal, the Supreme Court examined whether an executive order can alter cadre strength and create posts not contemplated by the Central Engineering (Civil) Group ‘A’ Service Rules, 1996. Relying on the principle that executive orders must conform to statutory rules and cannot fill gaps not provided for, the Court held the office orders ultra vires and invalid. Consequently, the appeal was dismissed.

Issues considered

Whether the office orders issued by the CPWD are valid in view of the Central Engineering (Civil) Group ‘A’ Service Rules, 1996.
Whether an executive order can amend cadre strength or create posts beyond the scope of existing service rules.
Whether the State's power to issue executive instructions is limited to filling gaps in the rules.

Legislation cited

Constitution of Indias. Article 162, s. Article 309

Subjects

Administrative LawExecutive OrderService RulesCadre ReorganisationUltra ViresConstitutional LawCentral Public Works Department

Judgment

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UNION OF INDIA AND ANR A
v.
CENTRAL ELECTRICAL & MECHANICAL ENGINEERING
SERVICE (CE & MES) GROUP 'A' (DIRECT RECRUITS)
ASSOCIATION, CPWD AND ORS.

NOVEMBER 1, 2007

[S.B. SINHA AND HARJIT SINGH HEDI, JJ.]

Administrative Law-Executive Order-Re-organisation ofcadre C
strength in terms thereof-Validity of-Held: By virtue ofOffice Orders
amalgamation ofdifferent cadres was sought to be made beyond legal
sanction as envisaged under the Rules which is not permissible-Office
Orders must be passed in conformity with the Rules-Ministry of
).. Urban Affairs and Employment (Department ofUrban Development) D
,. Central Engineering (Civil) Group 'A 'Service Rules, 1996-Service
Law.

Central Public Works Department issued Office Orders dated
1.8.2002 and 11.3.2002 purporting reorganization of cadre strength
E
amongst various disciplines of CPWD in the Central Engineering
Service Group 'A'. Respondent challenged the validity of the Orders.
Tribunal held the Orders as unsustainable. High Court upheld the
order of the Tribunal. Hence the qresent appeal.
Dismissing the appeal, the Court F
HELD: Ll. An executive order must be passed in conformity
with the Rules. Power of the State Government to issue executive
instructions is confined to filling up of the gaps or covering the area
which othenvise has not been covered by the existing Rules. Office
Orders must be subservient to the statutory rules. G
[Para 10) [868-A, BJ

Sant Ram Sharma v. State of Rajasthan and Anr., AIR (1967)
863 H'
tl
864 SUPREME COURT REPORTS (2007] 11 S.C.R. ""
..-'( .;'"'.
•
A SC 1910 and D.D.A. and Ors. v. Joginder S. Monga and Ors., [2004]
2 sec 297' relied on.
1.2. The Office Orders dated 1.8.2002 and 11.3.2003 are not
statutory in character. They even ex-facie do -not satisfy the
requirements of Article 162 of the Constitution of India. The
B disciplines of Civil, Electrical and Mechanical in the Central Public ~
..I,_
Works Department are different and distinct The said office orders
provided that disciplines referred to therein including Civil and
Electrical were to work under the control of the Zonal Head being
either a Chief Engineer (Civil) or Chief Engineer (Electrical). It has
c not been denied or disputed that the post ofChiefEngineer (electrical
or civil), was beyond the purview of the Rules. It is beyond any cavil
that there are posts of Chief Engineer in all the four wings of the
Central Publi~ Works Department. The Rules provide for posts of
Civil Engineers. As by reason of the impugned orders, some sort of
D amalgamation of different cadres are sought to be made beyond the A

legal sanction as envisaged under the Rules, the same is t

impermissible in law. Appellants before the High Com1 have admitted
that the Ministry had no intention to merge the civil and electrical
streams which were two distinct services having separate
E recruitment rules. Thus, the office orders clearly interfere with the
working of the statutory rules inasmuch as by reason thereof, a post
would be created which would be designated as Chief Engineer either
Civil or Electrical, which belongs to two different streams.
[Para 9] [867-D, E, F, G, H; 868-A] t
F ~.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5086 of
2007.
From the final Judgment and Order dated 24.05.2006 of the High
Court of Delhi at New Delhi in Writ Petition (C) No. 13604-05/2004 &
G CM Nos. 9506 of 2004 & 4393 of 2006.
t-
~- .;

R. Mohan, ASG., Sunil Roy and V.K. Verma for the Appellants.

Rajiv Dutta, Uday Gupta and Dharmendra Kumar Sinha for the
Respondents.
H
U.0.1. v. CENTRALELECTRICAL&MECHANICAL 865
ENGINEERING SERVICE [SINHA, J.]
The Judgment of the Court was delivered by A
S.B. SINHA, J. 1. Leave granted.
2. This appeal is directed against a judgment and order dated
24.5.2006 passed by a Division Bench of the High Court of Delhi at New
Delhi in CM Nos. 9506/2004 & 4393/2006 and W.P.(C) No. 13604/ 's
2004 & 13605/2004 affirming an Order dated 17.12.2003 passed by ,
the Central Administrative Tribunal, Delhi Bench, Delhi in Original
Application No. 864/2003.
3. The basic fact of the matter is not in dispute.
c
4. Central Public Works Department belonging to the Central
Government has its own Service Rules framed under the proviso appended
to Article 309 of the Constitution of India, known as "Ministry of Urban
Affairs and Employment (Department of Urban Development) Central
Engineering (Civil) Group 'A' Service Rules, 1996" (Rules). The said Rules D
came into force with effect from 28.l 0.1996. Whereas Rule 3 of the
Rules provides for "Constitution of the Service", Rule 4 provides for
"Grade, strength and its review". The first schedule appended to the Rules
provides for the posts in the Central Engineering Service, Group 'A'. The
hierarchy of the officers has also been provided therein. Rules govern the E
field of recruitment as also the cadre strength. Despite the fact that the
te1ms and conditions of the employees belonging to the said cadre are
governed by the statutory Rules, on or about 1.8.2002, a purported office
order was issued, the relevant part whereofreads as under:-
I "To maintain interdisciplinary coordination amongst various F
disciplines of CPWD, it has been decided that at zonal level all
the 4 disciplines, viz, Civil, Electrical & Mechanical, Architecture
& Horticulture of CPWD shall work under the administrative
supervision and control of the zonal head, i.e. Chief Engineer. The
officers of all disciplines in a zone v:ill exercise their delegated d
powers and will repo1t to the Chief Engineer who will further report
to the ADG(Region). This system will function under the following
guideunes:-
(i) Each zone shall be headed by a CE(C) or CE(E) subject to H
)
~

866 SUPREME COURT REPORTS [2007] 11 S.C.R.
~
...-,
A the conditions there will be at least one CE(E) heading a z.one
in each Region."
5. On or about 11.3.2003, another office order bearing No. 34103
was issued by the Central Public Works Department stating;
B "Sub: Reorganisation of zones in New Delhi Region under ADG ~
(S&P) for unified control. ·'\

In pursuance of Ministry of Urban Development & Poverty
Alleviation Office Order No. 28017/2/2002-EW.1 dated 1.8.2002
and in order to maintain interdisciplinary coordination amongst
c various disciplines of CPWD, DG(W) CPWD is pleased to
reorganise the circles & divisions amongst NDZ-1 & NDZ-2 and
Electrical Zone; New Delhi Region on trial basis. The Electrical
Zone (NDR) thus reconstituted shall be known as New Delhi
Zone-5.
D A
2. The officers of all disciplines in a zone will exercise their .y
delegated financial, administrative, technical powers and will report
to the Chief Engineer of the zone, who will further report to the
ADG(S&P)
E 3. The Chief Engineer either Civil or Electrical as z.onal heads shall
exercise his/her delegated powers for both civil and electrical
works. J

4. To facilitate technical sanction of estimates above the delegated
F powers of SEs, zonal CEs will have one EE(P) from the other . \
.....
discipline in their SE(P) unit. In exceptional cases the CE of either
discipline can approach the ADG of the region for arranging
technical sanction of estimates of other disciplines."
6. Validity and/or justification of the said orders came to be
G questioned before the Central Administrative Tribunal, Delhi Bench at r
)
Delhi. The Tribunal upon considering the matter at some length, opined ~

that the purported reorganization of the cadre strength by the appellant ...
herein in terms of the said office orders dated 1.8.2002 and 11.3.2003
were wholly unsustainable. The original application was, therefore allowed.
H
/
1
U.O.I. v. CENTRALELECTRICAL&MECHANICAL 867
ENGINEERING SERVICE [SINHA, J.]
A Division Bench of the Delhi High Court affirmed the said view of the A
Tribunal by reason of the impugned judgment.
7. Mr. R. Mohan, learned Additional Solicitor General appearing·
on behalf of the appellant in support of this appeal submitted that the
Tribunal and consequently the High Court committed a serious error in '
passing the impugned judgments and orders insofar as they failed to take B
into consideration that reorganization of cadre was not necessary to be 1

brought about by amending the Rules. It was contended that as by the
said office orders, neither any change in the cadre strength nor anybody's '
seniority, pay packet or any other benefit having been effected, amendment
to the Rules was wholly unnecessary. 'C

8. Mr. Raj iv Dutta, learned senior counsel appearing on behalf of
the respondent, on the other hand, submitted that the office orders are
clearly ultra vires statutory rules framed by the Union oflndia inasmuch
as by reason thereof, another post is created which is not contemplated D
under the statute.

9. The aforementioned office orders dated 1.8.2002 and 11.3.2003
are not statutory in character. They even ex-facie do not satisfy the
requirements of Article 162 of the Constitution oflndia. Indisputably, the
disciplines of Civil, Electrical and Mechanical in the Central Public Works 'E
Department are different and distinct. The said office orders provided that
disciplines referred to therein including Civil and Electrical were to work
under the control of the Zonal Head being either a Chief Engineer (Civil)
or Chief Engineer (Electrical). It has not been denied or disputed that the
f post of Chief Engineer (electrical or civil), was beyond the purview of F
the Rules. It is beyond any cavil that there are posts of Chief Engineer in
all the four wings of the Central Public Works Department. The Rules
provides for posts of Civil Engineers. As by reason of the impugned
orders, some sort of amalgamation of different cadres are sought to be
made beyond the legal sanction as envisaged under the Rules, in our G
_,,~ opinion, the same is impemlissible in law. Appellants before the High Court
have admitted that the Ministry had no intention to merge the civil and
electrical streams which were two distinct services having separate
recruitment rules. The said office orders, thus, clearly interfere with the
working of the statutory rules inasmuch as by reason thereof, a post would H
t.
868 SUPREME COURT REPORTS [2007] 11 S.C.R.
~ {'~'
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A be created which would be designated as a Chief Engineer either Civil or
Electrical, which belongs to two different streams.
10. It is now a well settled principle of law that an executive order
must be passed in conformity with the Rules. Power of the State
Government to issue executive instructions is confined to filling up of the
B
gaps or covering the area which otherwise has not been covered by the r-
....
existing Rules. See Sant Ram Sharma v. State of Rajasthan & Anr.,
AIR (1967) SC 1910 and D.D.A. and Ors. v. Joginder S. Monga and
Ors., [2004] 2 SCC 297. Such office orders must be subservient to the
statutory rules.
c
11. For the reasons aforementioned, there is no merit in this appeal
which is dismissed accordingly. In the facts and circumstances of this case
however, there shall be no order as to costs.
N.J. Appeal dismissed.
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