WP(C) 3205/2011 BEFORE THE HON’BLE JUSTICE MR B.K. SHARMA JUDGEMENT AND ORDER (CAV) The dispute involved in this writ petition relates to the post of Chief Engineer, Public Health Engineering Department (for short PHED), Govt. of Assam. While according to the petitioner, by virtue of his merit position in the selec tion as well as seniority over the private respondent i.e. the respondent No.4, he is entitled to get the said promotional post, the respondents, both official and private, have contended that the petitioner having already been promoted to the post of Chief Engineer, Sanitation, in the same department, carrying equival ent rank, status, duties and responsibilities, there is nothing wrong in promoti ng the respondent No.4 to the post of Chief Engineer, PHED, which subsequently f ell vacant, out of the same selection. The whole controversy is as to whether bo th the posts are equivalent in rank, status, duties and responsibilities, withou t any distinctive features. 2. The rules governing the service conditions of the parties is Assam Publi c Health Engineering Service Rules, 1996. As per the said rule and schedule ther eto, there is only one permanent post of Chief Engineer. Rule - 4 provides that the strength of each cadre in a class of service shall be such as determined by the Governor from time to time. The strength of cadres on the date of commenceme nt of the Rules is indicated in the schedule. Proviso to the said Rule provides that the Governor may hold in abeyance any post as and when considered necessary . The post of Chief Engineer is indicated in Rule -3 while describing the class and cadre. Admittedly, the post of Chief Engineer is a promotional post subject to suitability as may be decided by the Selection Board as per the procedure lai d down in Rule 13 of the said Rules. 3. There is no dispute that the petitioner is senior to the respondent NO.4 in the cadre of Additional Chief Engineer. When the vacancies for the post of C hief Engineer in the rank of Chief Engineer for the year 2011 arose, a meeting o f the Selection Board was held on 25.1.2011, in which five Additional Chief Engi neers were considered and all of them were recommended in order of preference. T hey are :- 1. Shri Hemendra Kr. Borah. 2. Shri Dipak Kr. Ghosh - Petitioner. 3. Shri Dilip Kr. Das - Respondent No.4. 4. Shri Girin Kr. Dutta. 5. Shri Ashok Kr. Das (SC). 4. According to the minutes of the selection, there were three vacancies in the rank of Chief Engineer, PHE, for which the selection was held. The three va cancies were calculated on the basis of 2 (two) vacant posts of Chief Engineer a nd Chief Engineer, Sanitation and the 3rd vacancy was calculated on the basis of promotion to be effected to the post of Secretary. 5. Pursuant to the said selection held on 25.1.2011, two notifications had been issued, both dated 29.1.2011. By the first notification, the Additional Chi ef Engineer at Sl. No.1 of the merit list, namely, Shri Hemendra Kr. Borah was promoted to the post of Chief Engineer (PHE) and by the 2nd notification, the pe titioner was promoted to the post of Chief Engineer (PHE), Sanitation. 6. After the aforesaid development, the controversy arose when the post of Chief Engineer, PHE, fell vacant on promotion of Shri Borah to the post of Secre tary, for which he along with the petitioner was considered by the DPC, which me t on 28.2.2011. as per the said recommendation, in order of preference, while Sh ri Borah stood at Sl. No.1, the petitioner stood at Sl. No.2. When Shri Borah wa s promoted to the post of Secretary, the resultant vacancy of Chief Engineer, PH ED was filled up by promoting the respondent No.4 from the selection that was pr epared on 25.1.2011 against 3 (three) vacancies of Chief Engineer of which one w as for immediate vacancy of Chief Engineer, PHE and the 2nd one was for the vaca ncy of Chief Engineer, Sanitation. The 3rd resultant vacancy was expected in ant icipation of promotion to the post of Secretary from the said two Chief Engineer s. 7. When the 3rd vacancy arose, the petitioner made the Annexure-I represent ation dated 24.2.2011 to the Secretary, PHE, for promoting him to the post of Ch ief Engineer, PHE, on the ground of being the senior most Chief Engineer and hav ing been recommended by the Selection Board, ahead of the respondent No.4. Howev er, by the impugned Annexure-J notification dated 13.6.2011, it is the responden t No.4, who was promoted to the post of Chief Engineer, PHE. 8. While according to the respondents, both the posts of Chief Engineer i.e . Chief Engineer (PHE) and Chief Engineer (Sanitation), having been filled up by promotion as per the recommendation of the Selection Board, the petitioner cann ot claim any grievance against the promotion of the respondent No.4, it is the s tand of the petitioner that the post of Chief Engineer (PHE) (Sanitation) being not an en-cadred post in the rules and the said post being inferior in status, d uties and responsibilities, etc. than that of the Chief Engineer, PHE, he could not have been superseded in the matter of promotion to the said post by the resp ondent No.4 on both counts i.e. merit position in the select list and seniority. 9. Narrating the status of the post of Chief Engineer, PHE (Sanitation), th e petitioner has traced back the history of the said post which came into being with the issuance of the Annexure-D letter dated 19.11.2003 addressed to the Chi ef Engineer, PHE, by the Govt. of Assam in the PHED. By the said letter, the san ction of the Governor of Assam to the upgradation of one post of Cell-Coordinato r in the rank of Additional Chief Engineer to the post of Chief Engineer (Sanita tion) with the support of UNICEF, Communication and Sanitation Cell under PHED w as conveyed with the following conditions :- 1. The upgraded post will exist upto Dec/04/till receipt of financial suppo rt of UNICEF after which the status quo ante prior to the upgradation will be re sorted to. 2. The Department will have to take prior approval of P & D and Finance Dep artment every year for issuing annual retention, in partial modification of D.F. P. Rules. 3. The Deptt. will give the re-imbursement position to P & D Deptt. & Finan ce Deptt. every six months. 4. The post of Addl. Chief Engineer will be kept in abeyance. 10. The petitioner has stated in the writ petition that the upgraded post of Chief Engineer (Sanitation) is without any separate establishment and that the incumbent is to function from the Office of the Chief Engineer, PHE. The petitio ner has also annexed documents to show that all administrative powers in the dep artment are exercised by the Chief Engineer, PHE, even to the extent of posts of personnel under disposal of Chief Engineer (Sanitation). 11. The petitioner has also brought on record the Annexure-F letter dated 3. 2.2006 by which the then Chief Engineer, PHE (Sanitation) was allowed to assume charge of Chief Engineer, PHE when the incumbent Chief Engineer, PHE, had procee ded on leave. Another order (Annexure-F1) dated 3.2.2006 has also been annexed, by which the incumbent Chief Engineer, PHE (Sanitation) was transferred as Chief Engineer, PHE against the retirement vacancy upon retirement of the incumbent C hief Engineer, PHE. These orders have been highlighted to show superiority of th e post of Chief Engineer, PGE than that of Chief Engineer, PHE( Sanitation). It is the specific case of the petitioner that Chief Engineer, PHE (Sani tation) does not have any establishment of its own and the incumbent of the said post is required to work under the administrative control of Chief Engineer, PH E. 12. The petitioner has filed an additional affidavit, in which it has been s tated that the post of Chief Engineer, PHE (Sanitation) being a ex-cadre post, c ould be abolished at any point of time. In this connection, the petitioner has b rought on record the Annexure-L communication dated 10.5.2011, by which the Govt . of Assam in the PHED conveyed the sanction and retention of the said post w.e. f. 1.1.2011 upto 31.12.2011. The purpose of such retention was conveyed towards payment of salary etc. 13. The official respondents have not filed any affidavit-in-opposition but have submitted the letter dated 6.8.2011 addressed to Ms. R. Chakraborty, learne d Addl. Sr. Govt. Advocate, Assam in the form of written instruction to her encl osing therewith certain documents. In addition, the respondents have also submit ted the letter dated 18.7.2011 addressed to Smt. V.L. Singha, Addl. Sr. Govt. Ad vocate by the Govt. of Assam, PHED, also furnishing therewith written instructio n and certain documents. In addition, a written submission has also been made in support of the arguments advanced during the course of hearing. 14. The respondent No.4 in his affidavit has contended that since there are two posts of Chief Engineer, there is nothing wrong in promoting the respondent No.4 to one of the said posts as per his turn and that the petitioner cannot hav e any choice for a particular post within the said two posts. 15. The petitioner in his affidavit-in-reply to the said affidavit, while re iterating the contentions raised in the writ petition, has stated that he being senior, both on merit and as per seniority, ought to have been vested with the a dministrative power which the post of Chief Engineer, PHE carries. In this conne ction, he has enclosed the Annexure-K notification dated 24.6.2009 by which dist ribution of works between the two Chief Engineers was conveyed. For a ready refe rence, the said notification is quoted below :- GOVERNMENT OF ASSAM PUBLIC HEALTH ENGINEERING DEPARTMENT NOTIFICATION Dated Dispur, the 24th June/2009 No. PHED-19/2005/32 : Considering the present load and in the interest o f public service, the Governor of Assam is pleased to distribute the following w orks between the 2 (two) Chief Engineer (PHE), with immediate effect and until f urther order for smooth functions of the Departmental activities. Sl. No Chief Engineer (PHE) Water Supply Sl. No Chief Engineer (PHE) San itation & Maintenance 1 Execution of all Rural Piped Water Supply Scheme (P/W/S) 1 Sanitation - Total sanitation Campaign (TSC). 2 All Deposit Schemes (PWSS) in Rural Areas 2 Swajaldhara Sche mes. 3 Procurement of materials of all above Schemes. 3 National Rural D rinking Water Quality Monitoring & Surveillance Programme (NRDWQM&SP). 4 Over all control of Administrative matter of establishment including tra nsfer and posting, disbursement of Salary etc, both Plan & Non-Plan. 4 Communication & Capacity Development Unit (CCDU). 5 Court Cases of all above related matter 5 State and District level laboratories. 6 Assembly Question of all related matter 7 Budget & F.O.C. of all above related matter 6 Procurement of m aterials of all above Schemes. 8 Compilation of Annual Plan 7 Budget & FOC of all above relate d matter. 9 Audit & Accounts of related matter 8 Annual Plan of all Budge ted matter. 10 CAG matters of above related matters 9 Assembly Question of all related matter. 11 Any other matter already dealt by the Chief Engineer (PHE) but not entru sted to Chief Engineer (PHE) Sanitation & Maintenance. 10 Audit & accounts for above matter. 12 Monitoring for both Physical & Financial for above subjects 11 CAG matters for related matter. 13 Training for above related matters 12 Monitoring for both Phys ical & Financial for above subject. 14 Execution of work of all type of Spot Sources 13 Training for abo ve related matters. 15 Maintenance of :- 14 Implementation of all Schemes under Non- Plan, State Plan including Mukhya Mantrir Assam Bikash Yojana. i) Rural Water Supply Schemes both PWSS & Spot Sources. ii) Maintenance of Urban Water Supply Schemes including Dispur Water Sup ply Scheme. iii) All Medical Colleges Water Supply Schemes. iv) Water Supply Schemes of all types of education and other institution s. 16 Water Supply Schemes in Schools and Anganwadi Centres. Considering the work load amongst the officers of the existing officers and staff are also distributed as per below : DISTRIBUTION OF SANCTIONED STRENGTH Post Overall strength of present CE Office Proposed Distribution of Officer s and staff Chief Engineer (PHE) Water Supply Chief Engineer (PHE) San itation & Maintenance Addl. Chief Engineer 2 2 1 Superintending Engineer 3 2 1 Executive Engineer 9 5 4 Asstt. Executive Entineer (TC) 1 1 - Asstt. Engineer 20 12 8 Junior Engineer 25 15 10 Sub-Engineer 4 3 1 Tracer 4 3 1 Stenographer 3 2 1 Register 1 1 - Superintendent 2 2 - Asstt. Superintendent 1 - - UDA 16 12 4 LDA 28 20 8 Grade-IV 33 25 8 Arch. Asstt/. 3 2 1 Driver 8 6 2 Total 163 113 50 Sd/- N. Kakati Secretary to the Govt. of Assam Public Health Engineering Department. 16. From the above stand of the rival parties, the questions that arise for consideration are as follows :- I) Whether the post of Chief Engineer, PHE (Sanitation) is a cadre post in the rules and if not whether the petitioner, who is admittedly senior to the res pondent No.4, both on merit and seniority, can be posted to the said post while the respondent No.4 is posted to the en-cadred post of Chief Engineer, PHE. II) Depending upon to the answer to the aforesaid question, whether both the posts can be said to be equal in rank, status, duties and responsibilities and if not, whether the petitioner, who is senior to the respondent No.4, both on me rit and seniority, could be posted as Chief Engineer, PHE (Sanitation) with infe rior rank, status, duties and responsibilities, although the pay scale for both the posts is same. 17. I have heard Mr. A.K. Bhattacharyya, learned senior counsel assisted by Mr. B.K. Das, learned counsel for the petitioner as well as Mr. M.K. Choudhury, learned senior counsel assisted by Mr. R. Dhar, learned counsel appearing for th e respondent No.4. I have also heard Mr. K.N. Choudhury, learned Addl. Advocate General, Assam assisted by Mr. J. Patwary, learned counsel along with Mrs. R. Ch akraborty, learned Addl. Sr. Govt. Advocate, Assam. I have also perused the enti re materials including the records / file bearing No. PHED-58/2002 on the subjec t of Selection of Chief Engineer, PHE Department. 18. Mr. Bhattacharyya, learned senior counsel for the petitioner, referring to the documents annexed to the writ petition, submitted that the post of Chief Engineer (Sanitation) being an ex-cadre post, the petitioner being senior, both on merit and seniority, should have been preferred over the respondent No.4 in t he matter of promotion and posting to the cadre post of Chief Engineer, PHE. In support of his submission, he has referred to the decisions reported in (1995) S upp 2 SCC 261 (Union of India Vs. A.K. Chakraborty), AIR 1974 SC 555 (E.P. Royap pa Vs. State of Tamilnadu) and (2009) 14 SCC 656 (Rajasthan Judicial Service Off icers’ Association Vs. State of Rajasthan and others). On the other hand, Mr. K. N. Choudhury, learned Addl. Advocate General, Assam, in his usual persuasive per suasion submitted that both the posts being in equal rank and status involving d uties and responsibilities akin to each other, the petitioner cannot make any gr ievance for his non-posting as Chief Engineer, PHE. He submitted that the petiti oner cannot have any choice for a particular post out of the two posts. 19. As regards the plea of the petitioner that the post of Chief Engineer, P HE (Sanitation) is an ex-cadre post, he submitted that the very fact that the po st is being continued, may be from time to time, is in existence over the years, will go to show that it is a cadre post. In support of his such submission, he has placed reliance on the decision of the Apex Court reported in (1997) 4 SCC 3 42 (K. Manickaraj Vs. Union of India & Ors) ; (2008) 9 SCC 242 (UOI Vs. Pushpa R ani & Ors) ; (1975) 1 SCC 319 (A.K. Subraman vs. Union of India) ; (1992) Supp 1 SCC 584 (N. Suresh Nathan & Anr. Vs. UOI & Ors). Heavily placing reliance on th e Division Bench decision of this Court in (2008) 1 GLT 886 (Uken Pegu Vs. Rames h Ch. Bora & Ors.), he submitted that the instant case is squarely covered by th e said decision, in which the Division Bench has answered a similar issue in fav our of the respondents and against the petitioner. 20. Mr. M.K. Choudhury, learned senior counsel appearing for the respondent No.4 in his pain stacking effort to persuade the Court to take the view of the r espondents, submitted that both the posts being equal in status and rank irrespe ctive of some variations here and there in duties and responsibilities and which is bound to be there as no two posts can carry equal duties and responsibilitie s, submitted that the petitioner having accepted the promotional post of CE, PHE (Sanitation), later on should not be permitted to turn around the same so as to claim the next vacancy of Chief Engineer, PHE. He has also placed reliance on th e aforesaid decision in Uken Pegu (supra) on which the learned Addl. Advocate Ge neral has placed reliance. 21. I have given my anxious consideration to the submissions advanced by the learned counsel for the parties. I have also perused the materials on record in cluding the file produced by the learned State Counsel. Upon an appreciation of the same, my findings and conclusions are recorded below. 22. It will be appropriate at this stage to deal with the decision in Uken P egu (supra) as according to the learned counsel for the respondents, the said de cision squarely covers the points in issue in this proceeding. As in the instant case, in the said case also, the issue before the Division Bench was as to whet her the posts of Chief Engineer (Water Resources) and Chief Engineer (Quality Co ntrol) under State Water Resources Department, are equal in rank and status, tho ugh the former post being designated as HoD. Setting aside the judgement and ord er of the learned Single Judge, by which the plea of the petitioner, as in the i nstant case, was accepted, the Division Bench has held that when the rules clear ly indicated that both the posts are of equal status and rank, as they have been en-cadred in the same cadre without any distinction, mere variation here and th ere of duties and responsibilities involved in the posts cannot lead to the infe rence that the post of Chief Engineer (QC) is inferior to the post of Chief Engi neer(WR). In this connection, the findings recorded in the said judgement in par agraph 23, 24 and 25 are quoted below :- 23. However, in our view the factors noted in the impugned judgment could not b e conclusive on the equivalence of the two posts in question. Such factors may b e relevant only if the Rules leave scope for examining these factors because of its ambiguity. 24. The Rules in our considered view do not make any distinction between the two posts. The Chief Engineer, Water Resources and Chief Engineer, Quality Control report directly to the Secretary of the Department and both the posts are encadr ed in the same cadre and carry equal pay. There are also instances where the Dep artment had departed from the usual practice of permitting movement to the post of Chief Engineer, Quality Control before permitting further movement to the pos t of Chief Engineer, Water Resources. Inclusion of the two posts in the same cad re under the Rules have been held by the learned Single Judge to be not conclusi ve per se, on the issue of equivalence of the two posts. But on the basis of oth er factors such as past practice in the Department and certain additional respon sibilities attached to the post of Chief Engineer, Water Resources, the learned Single Judge took the view that the Chief Engineer, Water Resources enjoys ascen dancy in distinction power and status in office as compared to that of Chief Eng ineer, Quality Control. These external factors have been taken by the learned Si ngle Judge to be good reasons to depart from the equivalent position of the two posts as reflected in the, service Rules. 25. But when the Rules clearly indicate the two posts to be of equal status in r ank as they have been encadred in the same cadre without any distinction between the Chief Engineer, Quality Control and Chief Engineer, Water Resources and bot h the posts have been made the feeder posts for making promotion to the post of Secretary of the Department, we are of the opinion that there cannot be any basi s for treating one post to be higher to the other since such conclusion would ob viously be contrary to the Rules in force. The decisions which have been cited c an only be relevant and relied upon, when the Rules are ambiguous or is not conc lusive on the status of the two posts in question. But when the Rules are unambi guous, there cannot obviously be any justification to rely upon past practice, n ature of responsibilities, special responsibility attached to the post, to take a view that one post is superior to the other. ( Emphasis supplied) 23. From the above, what is seen is that the Division Bench has recognized t hat the factors on which the learned counsel for the petitioner has emphasized a nd noted above, which were also the factors urged on behalf of the writ petition er in the said case, could be relevant only if the rules leave scope for examini ng those factors because of its ambiguity. In the said decision, it was found th at the rules do not make any distinction between the two posts and that both the posts are encadred in the same cadre and carry equal pay. It was in such circum stances, the Division Bench has held that when the rules clearly indicates the t wo posts to be of equal status and rank as they have been encadred in the same c adre without any distinction between the two posts, there cannot be any basis fo r treating one post to be higher to the other, since such conclusion can obvious ly be contrary to the rules in force. 24. The moot question which falls for consideration in this case is as to wh ether like in the said decision in Uken Pegu (supra) in the instant case also, t he post of Chief Engineer, PHE (Sanitation) has been encadred as an equivalent post with same rank and status with that of Chief Engineer, PHE. During the cou rse of hearing, nothing could be shown that in-fact the said post has been enca dred in the same cadre with that of Chief Engineer, PHED. It is in this context, the learned Addl. Advocate General, Assam, placed reliance on the decisions he cited during the course of hearing. A little discussion on the said decisions wi ll make the position clear. 25. In K. Manickaraj (supra), the Apex Court held that when the upgraded pos ts were continuing for more than 9 (nine) years, no inference could be drawn tha t the upgradation was temporary. Unlike the instant case in the said case the qu estion that fell for consideration of the Apex Court was as to whether the reser