WP(C) 332/2009 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY The assailments in successive phases proclaim the petitioner’s d etermined bid for being adjudged as an Additional Chief Engineer, of the Water R esources Department, Government of Assam, eligible for being considered for prom otion to the existing post of Chief Engineer thereof in terms of the Assam Engin eering (Flood Control Department) Service Rules, 1981 (as amended) (hereafter re ferred to as as the Rules). Whereas the challenge laid in the first petition is against the notification dated 6/9/2008, circulating the provisional gradation l ist of Additional Chief Engineers of the Department sans his name, the subject m atter of impugnment in the latter is the select list dated 20/7/2009 of Officers recommended for promotion to the post of Chief Engineer as well as the notifica tion of the even date promoting the respondent No. 3 thereto. 2. I have heard Mr. S. Shyam, learned Counsel for the petitioner as sisted by Mr. P.N. Goswami, Advocate, Mr. A.C. Buragohain, learned Additional Ad vocate General, Assam, for the official respondents, Mr. N. Dutta, Sr. Advocate for the respondent No. 4 and Mr. D.K. Das, Advocate for the respondent No. 3. 3. The contentious pleadings have to be traversed to cull out the r elevant facts in their bare essentials. The petitioner claims to have joined the Flood Control Department of the State as Assistant Engineer on 6/12/1971 to be promoted as the Executive Engineer (Mechanical) on 14/2/1985. By notification da ted 23/9/2003, he was further promoted to the next higher post of Superintending Engineer (Mechanical) and was posted in the said capacity at the Guwahati Mecha nical Water Resource Circle. Meanwhile, the Flood Control Department had been ch ristened as Water Resources Department (hereafter referred to as the Department) . The post of Superintendent Engineer, Guwahati Mechanical Water Resource Circle was vide letter dated 16/5/2007 of the Deputy Secretary (I), Water Resources De partment, upgraded to that of the Additional Chief Engineer, Mechanical Zone. 4. A selection was held thereafter on 7/6/2007 and the petitioner h aving been placed at Sl. No. 1 of the list of the recommended candidates, he, by notification dated 11/6/2007 of the Secretary to the Government of Assam, Water Resources Department, was promoted to the post of Additional Chief Engineer, Me chanical Zone. While he, as the senior most Additional Chief Engineer of the Dep artment, nursed a legitimate expectation that his name would be included in the gradation list of such officers and that he would be accordingly considered for promotion to the next higher post of Chief Engineer in terms of the Rules, to hi s shock and dismay, the impugned notification dated 6/9/2008 was published circu lating the provisional gradation list of the Additional Chief Engineers of the D epartment in which his name did not figure. According to the petitioner, beyond the cadre of Superintending Engineer, the categorisation of the posts based on d iscipline i.e. Civil, Mechanical and Electrical was not envisaged in the Rules a nd that therefore the said provisional gradation list which per se included only the Additional Chief Engineer of the Civil Branch was incongruent therewith. 5. Being aggrieved, the petitioner therefore submitted a representa tion on 18/12/2008 before the Secretary to the Government of Assam, Water Resour ces Department, for necessary remedial steps so as to assure the consideration o f his case for the post of Chief Engineer in due course. The aforementioned auth ority in his prompt response communicated by the letter dated 12/1/2009 required the Chief Engineer of the Department to submit a proposal for the post of Chief Engineer (Mechanical) as in his contemplation the Rules did not provide for any scope for consideration of his request for promotion as made. The petitioner’s next representation in reiteration of his earlier pleas not having evoked any re sponse, he instituted WP(C) 332/2009. 6. This Court while issuing rule on 4/2/2009, being apprised of the fact that a selection for promotion to the post of Chief Engineer was scheduled to be conducted shortly, by the said order directed the respondents to consider the case of the petitioner as well on the assumption that he was eligible and t o keep the results of the selection in a sealed cover to await of further orders to follow. On an interim application filed thereafter by the respondent No. 3 s eeking vacation and/or modification of the interim direction as above, the seale d cover recommendation of the Selection Board was requisitioned by the Court and on a perusal thereof by order dated 7/4/2009, the departmental authorities were allowed to act on the recommendation of the Selection Board/Departmental Promot ion Committee for promotion to the post of Chief Engineer of the Department. As the petitioner came to learn that the above notwithstanding, the departmental au thorities were contemplating to publish a select list of candidates belonging to Civil Branch only, he submitted a representation on 9/4/2009 before the Secreta ry of the Department contending inter alia that the step proposed would be oppos ed to the letter and spirit of the order dated 7/4/2009 of this Court. 7. By notification dated 27/4/2009, a select list of the candidates recommended for promotion to the rank of Chief Engineer of the Department was p ublished in the issue of the same date of the Assam Gazette Extraordinary. The s elect list of six candidates was confined to the incumbents of the Civil Branch of the Department and did not contain the name of the petitioner. The respondent No. 3 and 4, however, were placed at Sl. No. 1 and 2 respectively. By a separat e notification of the even date, the respondent No. 3 was promoted to the post o f Chief Engineer (Quality Control) of the Department. In WP(C) 1951/2009, as all uded hereinabove, the petitioner seeks to invalidate the aforementioned select l ist and promotion of the respondent No. 3. 8. The State respondents in their affidavit affirmed by the Secreta ry of the Department have asserted that the upgradation of the post of Superinte nding Engineer, Guwahati Mechanical Water Resources Circle, hitherto held by the petitioner to that of Additional Chief Engineer, Mechanical Zone, Water Resourc es Department, under Rule 3(4) of the Rules and that a selection was held from a mongst the existing two Superintending Engineers of the Mechanical Branch only a nd on the basis thereof, the petitioner was promoted as Additional Chief Enginee r, Mechanical Zone, Water Resources Department, Guwahati. According to them, tho ugh at the relevant point of time, there were 20 incumbents in the post of Super intending Engineer in the Civil Branch of which some were senior to Shri Nabin C h. Sarma, Superintending Engineer (M), whose case was considered along with the petitioner for the post of Additional Chief Engineer (M), they were left out of consideration in the said selection process as the post was exclusively meant fo r the mechanical cadre. While dismissing the petitioner’s assertion of merger of all disciplines above the rank of Superintending Engineer, the answering respon dents have contended that presently there are two separate categories of Additio nal Chief Engineer i.e. Additional Chief Engineer (Civil) and Additional Chief E ngineer (Mechanical) in the department and that promotion of Additional Chief En gineer (Mechanical) to the post of Chief Engineer would be in violation of Rule 3(4) of the Rules. They have, therefore, justified the non-inclusion of the name of the petitioner in the gradation list of Additional Chief Engineer (Civil). T hey have, however, stated that as there is only one post of Additional Chief Eng ineer in the Mechanical Branch, separate gradation list therefor was not contemp lated. They have maintained that the post of Chief Engineer (Quality Control) do es not require any expertise of mechanical engineering as all duties and works r elatable thereto are of civil nature. The answering respondents have reiterated in clear terms that the post of Additional Chief Engineer of the Mechanical Cadr e thus could not be considered to be a feeder post for promotion to the post of Chief Engineer of the Department. The petitioner’s claim of being the senior mos t Additional Chief Engineer has also been refuted. The respondents, however, hav e referred to an ongoing process to examine the possibility of creating a post o f Chief Engineer (M) in the department. 9. In his counter, the respondent No. 3 while generally endorsing t he stand taken by the official respondents, has insisted that the impugned grada tion list dated 6/9/2008 has been drawn up in conformity with Rule 3(4) of the R ules. While contending that in terms of the Rules, posts in Cadre (i), (ii) and (iii) of Class I (Sr. Grade) are borne in the civil branch of the Department unl ess specifically created for any other Branch as may be considered necessary, th e petitioner’s claim for consideration of his case for the post of Chief Enginee r in the backdrop of his promotion as Additional Chief Engineer (Mechanical) has been repudiated as untenable. He has claimed himself to be the seniormost incum bent in the cadre of Additional Chief Engineer (Civil) and thus eligible to be p romoted as the Chief Engineer (QC) as per the Rules. 10. The averments in the affidavit of the respondent No. 4 are also in the same lines and, therefore, dilation thereon is considered inessential. He , however, claimed to be the senior most Additional Chief Engineer, Upper Assam Zone, Water Resource Department, and thus eligible to be considered for promotio n to the rank of Chief Engineer in the Department. 11. The other respondents have not entered appearance. In a separate affidavit, the respondent No. 1 has set out the criteria applied to asses the s uitability of the eligible candidates for promotion to the post of Chief Enginee r. The assertions in the affidavit in reply filed by the petitioner are in essen ce reaffirmation of those in the writ petitions. 12. Mr. Shyam has persuasively urged that the classification on the basis of disciplines being only upto the cadre of Superintending Engineer, as is evidenced by the Rules, no further distinction founded on the said norm is envi saged in the higher echelons and that therefore all Additional Chief Engineers i rrespective of their erstwhile categorisation were eligible to be considered for promotion to the post of Chief Engineer in the Department. While underlining th at though in the primordial days of the department then nomenclatured as Flood C ontrol Department, civil works formed the gamut of the organisational callings, with the increase in the variety and range of works pertaining to mechanical eng ineering, the post of Superintending Engineer (Mechanical) was upgraded to that of Additional Chief Engineer (Mechanical) to which the petitioner on the assessm ent of his suitability and merit was promoted. The learned Counsel in this backg round has maintained that as in terms of Rule 3(2), on the creation of the post of Additional Chief Engineer it was duly integrated in the service as one equiva lent to that of the existing Additional Chief Engineers, the purported classific ation endeavoured by the respondents is clearly opposed to the letter and spirit of the Rules. Mr. Shyam has insisted that having regard to the assimilation of the post of Additional Chief Engineer (M) in service with consequential status e quivalent to that of the other Additional Chief Engineers, Rule 3(4), even if co nceded some relevance in the context of the administrative configuration can by no means annihilate the right of the petitioner for being considered for promoti on to the post of Chief Engineer along with other Additional Chief Engineers of the Department in accordance with the Rules. Referring to Rule 12 and 13 of the Rules, the learned Counsel has emphatically argued that the impugned gradation l ist of Additional Chief Engineers to the exclusion of the petitioner and the rep udiation of his eligibility for the next higher post of Chief Engineer is clearl y violative of his constitutional right in that regard as well as his rightful c laim therefor under the Rules. 13. Without prejudice to the above, the learned Counsel has contende d that Rule 3(4) in the present form besides being vague and inarticulate, is ou tdated in the present context and, therefore, needs to be read down to be in ali gnment with the petitioner’s constitutional as well as legal right for being con sidered for promotion to the post of Chief Engineer. In any view of the matter, the learned Counsel has argued that the said provision of the Rules ought to be construed in favour of such constitutional guarantee for it to be valid. Pointin g out that the department presently is equipped with two posts of Chief Engineer i.e. Chief Engineer (Water Resources) as the Head of the Department and Chief E ngineer (Quality Control) (also for short referred to as the C.E. (QC)), Mr. Shy am has sought to impress upon this Court that the post of Chief Engineer (QC) be ing entrusted with the mechanical works, the petitioner’s claim for being consid ered for promotion in any view of the matter, cannot be denied vis-à-vis the sam e. The learned Counsel pleaded that though represented by the respondents that t he petitioner had been considered for promotion to the post of Chief Engineer as required by this Court neither his name figures in the select list of the recom mended candidates nor his inter se position on merit and suitability on such ass essment has been disclosed by the respondents. Mr. Shyam has therefore imputed e xclusion of the petitioner from consideration of his case for promotion to the p ost of Chief Engineer contending that the act impugned is patently arbitrary, di scriminatory and unconstitutional and is liable to be adjudged as such. He has t hus insisted for a direction to the respondents to re-enact the process by annul ling the impugned promotion. To reinforce his arguments, Mr. Shyam placed relian ce on the following decisions of the Apex Court as well as of this Court Sunil B atra versus Delhi Administration and others, (1978) 4 SCC 494, Delhi Transport C orporation versus D.T.C. Mazdoor Congress and others, 1991 Supp (1) 600, Chandig arh Administration versus K.K. Jerath, (1994) Supp 3 SCC 582, S.C. Pandey versus State of M.P. and others, (2004) 13 SCC 604, Nandlall and Sons Tea Industries ( P) Ltd. & Another versus State of Assam and Others, 2007 (3) GLT 260. 14. The learned Additional Advocate General, Assam, has argued that a plain reading of the Rules demonstrates that the petitioner as the Additional Chief Engineer (Mechanical) is not eligible to be considered for promotion to th e next higher post of Chief Engineer in the Department and, therefore, his pleas to the contrary Rules are misconceived. With reference to the official records, Mr. Buragohain has urged that though his case was duly considered as directed b y this Court, his promotion as Chief Engineer of the Department being impermissi ble under the Rules, his name did not figure in the impugned select list and the respondent No. 3 having been adjudged to be best suitable for the post, was acc ordingly promoted thereto. 15. Mr. Dutta, learned Counsel for the respondent No. 4 has argued o n the basis of the pleadings that having regard to the sequence of events involv ing the upgradation of the post of Superintending Engineer (Mechanical) to that of the Additional Chief Engineer (Mechanical) and the promotion of the petitione r thereto, none of his grouses in the context of the Rules is entertainable in l aw. Refuting the assertion that the post of CE (QC) deals in works relating to m echanical cadre, the learned Sr. Counsel with reference to the documents appende d to the writ petition has maintained that the existing post of Chief Engineer ( QC) has been created on the upgradation of the post of Additional Chief Engineer (QC) and has no relation what so ever with the mechanical cadre. Contending tha t the posts of CE (WR) and CE (QC) are equivalent, Mr. Dutta has emphasised that the very fact that for the purpose of promotion to the sole post of Additional CE (M), the candidature of the petitioner and the other Superintending Engineer (M) to the exclusion of many senior incumbents in the civil branch was considere d is a clear indicator that the said post of Additional Chief Engineer (M) was m eant only for the mechanical wing of the department and was not open for the oth er branches. The plea of homology between Additional CE(M) and Additional CE(C) is thus frivolous, he urged. 16. Endorsing the validity of the impugned gradation list, the learn ed Sr. Counsel maintained that as the petitioner was the only Additional Chief E ngineer in the mechanical cadre no separate seniority list of the incumbents of that post was necessary. Adverting to the Rules, Mr. Dutta urged that in terms o f Rule 3(4), in absence of any post of Chief Engineer (M), the petitioner was no t eligible to be considered to be promoted to that rank and that creation of the post of Additional Chief Engineer (M) by upgradation of the post of Superintend ing Engineer (M) per se would not facilitate his transition therefrom to the exi sting posts of Chief Engineer in the Department on promotion. The learned Sr. Co unsel highlighted that the cadres of engineers in each branch of the department are as a mandate of the Rules distinct and separate from each other and unless a conscious and an imperative decision of the Rule making authority is discernibl e to the contrary vis-à-vis any particular cadre, no integration thereof with th e other can be envisaged. As Rule 3(4) is on the face of it in the nature of an eligibility clause, the petitioner having been disqualified thereby cannot legit imately complain of any contravention of his constitutional or legal rights, he pleaded. According to Mr. Dutta, having regard to the scheme of the Rules read w ith the schedules thereto, it is apparent that the petitioner as a member of the mechanical wing of the department is not eligible to be considered for promotio n to the existing post of Chief Engineer. Referring to the letter dated 12/1/200 9 of the Secretary to the Government of Assam, Water Resources Department, Guwah ati, initiating steps for creation of a post of Chief Engineer (M) in the Depart ment, Mr. Dutta has submitted that this move is however in alignment to the true purport of Rule 3(4) of the Rules and only reinforces the stand of the responde nts. That the omission of the petitioner to question the validity of Rule 3(4) d isentitles him to plead unconstitutionality, arbitrariness and discrimination qu a the impugned action has been urged as well. The authorities cited at the Bar h ave been distinguished contending that those had been rendered in different fact ual context. Instead reliance has been placed on a decision of this Court in Pro goti Bora versus State of Assam and others, 2003 (1) GLT 472, asserting that the Rules involved therein presented identical provisions in which the plea on the basis of cadre vis-à-vis promotion had been upheld. 17. Mr. Das, learned Counsel for the respondent No. 3 while apprisin g this Court that he (respondent No. 3) is presently holding the post of CE (QC) , has adopted the arguments made on behalf of the respondent No. 4. 18. In reply Mr. Shyam emphasized that the post of Additional Chief Engineer (M) having been created in exercise of power under Rule 3(2), no furthe r inhibition posed by Rule 3(4) is comprehensible in the matter of promotion to the next higher post of Chief Engineer. Reiterating that the schedules to the Ru les are outdated, the learned Counsel has insisted that the same per se do not e vince that the post of Additional Chief Engineer (M) constitutes a separate cadr e. He further contended that challenge to the vires of Rule 3(4) was inessential in the facts and circumstances of the case and that a harmonious construction t hereof with Rule 3(2) is called for to secure the petitioner’s constitutional ri ght to be considered for promotion. He distinguished the decision in Progoti Bor a, supra, contending that the Rules involved therein having clearly segregated, the cadres upto the rank of Additional Chief Engineers, the challenge based ther eon to the process to the said post had been sustained. This decision, according to Mr. Shyam, in the factual scenario in hand is not of any relevance. 19. The contentious pleadings and the arguments commensurate therewi th have been cautiously analysed. The Rules having occupied the centre stage of the debate, deserves immediate reference for the essential insight into the esse nce of the simmering controversy. The Rules are the yield of the powers conferre d by Article 309 of the Constitution of India to regulate the recruitment and co nditions of service of persons appointed to Assam Engineering (Flood Control Dep artment) Service (for short also referred to as the Service). As an upshot of th e constitutional empowerment, this legislative instrument wields a presiding pro file and is of authoritative bearing on all concerned. The provisions thereof pr escribing the norms for regulating the recruitment and conditions of service, as the constitutional provision enjoins, would enjoy a primacy in such matters til l an Act of the appropriate Legislature is enacted. The Rules, which are applica ble to the members of the aforenamed Service, in Rule 3, design the class, cadre , branch and status thereof. The use of the word branch is of added significan ce in the present factual conspectus. The service, as the said provision predica tes, comprises inter alia of Class-I (Sr. Grade), which consists of the followin g: (i) Secretary to the Government (ii) Chief Engineer (iii) Additional Chief Engineer and (iv) Superintending Engineer. Rule 3(2) provides that the service may also include: (a) any post equivalent to a post in any of the cadres mentioned in sub-rule (1); and (b) any cadre or post subsequently laid down by Government to be included in a cadre or service. Sub-Rule (3) and (4) for the purpose of immediate reference are extracted herein below. (3) The cadres of Superintending Engineer, Executive Engineers, Sub-Div isional Officers and Assistant Engineers may have distinct branches, namely, Civ il, Mechanical and Electrical and each branch may be deemed to be a separate cad re. (4) The posts in cadres (i), (ii) and (iii) of Class I (Senior Grade) me ntioned in sub-rule (1) shall be borne in the Civil branch unless specifically c reated for any other branch, as may be considered necessary. 20. The strength of the service is provided by Rule 4 to be as deter mined by the Governor from time to time, Schedule-I of the Rules provides the sa me at the date of commencement thereof. The method of recruitment outlined in Ru le 5 amongst others mandate that induction to Class-I and Class-I (Senior Grade) shall be made by promotion only in accordance with Rule 12 and 13. Promotions u nder Rule 12 would be on the recommendation of the related Selection Board concu rred upon by the appointing authority subject to suitability of the candidates c oncerned possessed of such qualification and experience as may be prescribed by the Governor from time to time, the same, as stipulated at the time of commencem ent of the Rules being set out in Schedule III thereof. Rule 12(2), however, pro vides in clear terms that promotion to the post of Chief Engineer has to be from that of Additional Chief Engineer, the criteria therefor as per the