WP(C) 4072/2007 BEFORE HON’BLR MR JUSTICE AMITAVA ROY JUDGEMENT AND ORDER(ORAL ) Comprehending that his preferential right to be promoted to the post of Chief Engineer, Water Resources Department, Government of Assam stands subverted by the Notification dated 3.8.2007(Annexure-G) thereby promoting the Respondent No.3 thereto, the petitioner seeks redress in this proceeding under A rticle 226 of the Constitution of India. 2. I have heard Mr N. Dutta, Senior Advocate ,assisted by Mr. I. Ch oudhury, Advocate for the petitioner, Mr P.Talukdar, learned Standing counsel, W ater Resources Department ,Govt. of Assam and Mr AC Borbora, Senior Advocate ,as sisted by Mr UK Nair, Advocate for the Respondent No.3. 3 The pleaded facts being indispensably essential, would have to be reci ted. The petitioner has contended that after being initially appointed as an Ass istant Engineer in the Flood Control Department( as it then was in the year 1971 ) he was, in the year 1993 promoted as Executive Engineer and posted at Guwahati (West Environment Training Division) Planning and Development Department. In 200 2 he was promoted to the rank of Superintending Engineer and in July,2006 to th at of the Additional Chief Engineer and posted at NC Hills, Haflong. The Flood C ontrol Department was renamed as Water Resources Department in the year 2002(he reafter also for short referred to as ’Department’).He was thereafter transferre d and posted as Addl. Chief Engineer, Lower Assam Zone (Water Resources),Guwaha ti. The petitioner has stated that the post of Chief Engineer, Quality Control , Flood Control in the Flood Control Department was upgraded to that of Addl. Chief Engineer in the scale of pay Rs.2825-5900/- vide Memo No.FC(E)/71/89/26 d ated 11.12.1992. Subsequent thereto, the Secretary to the Govt.of Assam, Flood C ontrol Department by Office Memo No.DC(E) 59/98/4 dated 26.5.1999 conveyed the s anction of the Governor of Assam for the upgradation of the post of Addl. Chief Engineer, Quality Control, Flood Control Department to that of Chief Engineer , Quality Control in the pay scale of Rs.10375-16050/-. Consequently, the office of the Chief Engineer, Quality Control, Flood Control Department became functio nal with effect from 12.7.1999. This post of Chief Engineer, Quality Control, Flood Control Department ,howeve r, was not envisaged in the Assam Engineering (Flood Control Department) Service Rules,1981 having been created later. The Rules do not provide either the mode of promotion therefrom to the higher post. According to the petitioner, the powe rs and duties of the post of Chief Engineer, Flood Control are different from t hat of the Chief Engineer, Quality Control, Flood Control Department, though bot h the posts carry the same pay scale of pay. According to him, the post of Chief Engineer, Flood Control is considered to be that of the Head of the Department ,whereas the Chief Engineer, Quality Control continues to function from the off ice of the Superintending Engineer. On the creation of the Water Resources Department, these posts were re- designa ted as Chief Engineer, Quality Control, Water Resources Department and the Chie f Engineer, Water Resources Department. Assam Engineering (Flood Control Departm ent ) Service Rules,1981 (herein after referred as the ’Rules’) admittedly apply to the Water Resources Department. The petitioner has maintained that as a mat ter of procedure ,promotion is effected from the post of Addl. Chief Engineer to Chief Engineer, Quality Control and thereafter the promotee is raised as th e Chief Engineer, Water Resources before being considered for further elevation to the next higher post. The petitioner has insisted that this practice has bee n consistently maintained since the year 1999. Several instances to the said eff ect have also been cited in the petition. It has been contended by him that the post of Chief Engineer, Water Resources has thus been treated to be a post super ior to that of the Chief Engineer, Quality Control. 4. The petition discloses that on 29.3.2007 a meeting of the Selection Board for promotion of Addl.Chief Engineers of the Department to that of the C hief Engineer was held and the following candidates were recommended in order o f merit : i) Shri Ziaul Islam ii) Shri Ramesh Ch. Borah.. Petitioner iii) Shri Uken Pegu &.ST(P).. Respondent No.3 iv) Shri Lohit Ch. Hazarika. Following the approval of the recommendations under the Rules, the petitioner w as thereafter promoted and appointed to officiate as Chief Engineer, Quality Co ntrol with Headquarters at Guwahati by Notification dated 30.6.2007. Incidenta lly, on the very same date, two vacancies had occurred due to the retirement of Ziaul Islam, Chief Engineer, Quality Control and the promotion of Sri KC Das, (Chief Engineer, Water Resources ) as the Secretary of the Department. The petit ioner resultantly was accommodated as Chief Engineer, Quality Control and Sri Pa ran Baruah was handed over the charge of the office of the Chief Engineer of th e Department. Though the petitioner nursed an expectation that having regard to his position in the select list and earlier promotion as Chief Engineer, Qualit y Control, he would be elevated as the Chief Engineer, Water Resources as unusu ally done by the impugned Notification, the respondent No.3 was promoted and a ppointed as Chief Engineer, Water Resources Department with Headquarters at Guwa hati. The petitioner being aggrieved though submitted a representation on 4.8.20 07 before the Secretary of the Department, the same remained unattended. The petitioner has maintained that since the creation of the post of Chief Engineer, Quality Control, it has been treated to be the feeder post for that of the Chief Engineer, Water Resources Department which stands substantiat ed by the professed norms of the Department as well as the continuously adhered executive decision of the Government of Assam maintained as the long term pr actice .The petitioner has questioned the impugned decision to be illegal, arb itrary and malafide to favour the Respondent No.3,on non germane considerations . 5. The official Respondents in their affidavit sworn by Sri Paran Baruah , Secretary to the Government of Assam, Water Resources Department while admitti ng the upgradation of the post of Additional Chief Engineer, Quality Control to that of Chief Engineer, Quality Control have affirmed that the pay scale thereo f is equivalent to that of Chief Engineer of the Department. They admitted that the post of Chief Engineer, Quality Control was not incorporated in the Rules , but pleaded that the post of Chief Engineer, Water Resources was considered as Head of the Department till there was one post of Chief Engineer in the cadre. However, at the time of renaming of the Flood Control Department in the year 200 2, both the posts of Chief Engineers were re-designated as Chief Engineer, Qual ity Control (sic) and carried the same scale of pay. The answering respondents stated that there was no executive order treating the post of Chief Engineer, Wa ter Resources Department to be superior than that of Chief Engineer, Quality Co ntrol. According to them, the respondent No.3 belongs to ST(P) community and as till date no candidate of such category had held the post of Chief Engineer, he by the impugned Notification was promoted thereto. The respondents reiterated that the post of Chief Engineer, Quality Control to which the petitioner had been promoted is of the same rank with eq ual pay and status. While denying the allegation that the impugned decision is t o bestow undue favour on the respondent No.3, the respondents have reaffirmed th at the posts are equivalent in the pay structure. Moreover, the post of Chief E ngineer, Quality Control is directly under the administrative control of the Se cretary, Water Resources Department and not of the Chief Engineer of the Departm ent. It has been further stated that the petitioner being higher in order of p reference in the select list, he was accordingly provided a posting as Chief Eng ineer, Quality Control that had fallen vacant prior in point of time and the re spondent No.3 was thereafter accommodated against the post of Chief Engineer vacated due to the promotion of Sri Paran Baruah as the Secretary of the Depart ment. 6. Endorsing the stand of the State respondents , the respondent No.3 in his counter has averred that though the post of Chief Engineer, Quality Cont rol is not integrated in the Rules from the date of its creation, it has been considered to be equivalent to that of the Chief Engineer, Water Resources Depar tment in pay, status and responsibility so much so, that the cadre strength of the said post is construed to be two for all purposes. The answering respondent has denied that the post of Chief Engineer has been designed as the Head of the Department and has avowed that both the Chief Engineers, Water Resources Departm ent and the Chief Engineer, Quality Control have to directly report to the Sec retary of the Department. He has denied that the post of Chief Engineer, Water Resources is a promotional one from that of the Chief Engineer, Quality Control and has clarified that the instances in the writ petition evidenced the posti ngs to the post of Chief Engineer, Water Resources on transferred and not on pr omotion. He has also affirmed that no executive decision exists laying down th e norms to be followed for the purpose of posting a person selected for the post of Chief Engineer either as Chief Engineer, Water Resources Department or Ch ief Engineer, Quality Control as no such requirement had ever been felt , both the posts being equivalent in all respects and included in the same cadre. The answering respondent has stated that a person appointed as Chief Engineer, Qu ality Control is by no means deprived of his promotional prospects to the nex t higher post of Secretary as is demonstrated by several instances in the past. No right of the petitioner has thus been infringed by his promotion against a vacant post. The respondent No.3 claimed to be functioning as Chief Engineer of the Department as on date. 7. In his reply affidavit, the petitioner while standing by the averment s made in the writ petition insisted that all along the Seniormost Additional Ch ief Engineer from the respective select list used to be promoted as Chief Engine er, Quality Control at the first instance to be made the Chief Engineer subseque ntly. This being the consistent practice, in absence of any particular provisio n in the Rules relating to the Chief Engineer, Quality Control, it has attained the status of an executive policy not departable arbitrarily. The petitioner ha s asserted that the Chief Engineer, Water Resources makes the budget allocation for his office which is a clear index of superiority in the status of his office compared to that of Chief Engineer, Quality Control. The petitioner referred to an extract from the affidavit-in-opposition submitted by the State respondents in WP( C) No.2675/2006,Sri Anil Kumar Mitra vs. State of Assam and Ors to subs tantiate his stand. 8. Elaborating his stand on the plea of non equivalence of the two posts , the petitioner in his reply affidavit to the counter of the respondent No.3 ha s further stated that though the Chief Engineer of the Department is included in the Selection Board for the promotion under Rule 15 to the posts referred to th erein, the Chief Engineer, Quality Control does not enjoy the said privilege. Moreover, the Chief Engineer, Quality Control is not a Member of the Technical Advisory Committee constituted by the Government for the Assam State Brahmaput ra Valley Control Board, though the Chief Engineer, Water Resources Department i s so. It is in recognition , according to the petitioner, of the higher status, responsibility and distinction attached to the post of Chief Engineer, Water Re sources Department that the government had been continually treating the post o f Chief Engineer, Quality Control as a feeder post therefor. 9. The respondent No.3 while responding to the above, in his additiona l affidavit has dismissed the averments of the government’s affidavit in WP( C) No.2675/2006 as not based on records besides being in a different factual cont ext. According to him, the allocation of budget is only an administrative exe rcise conclusive of the superiority of the post of Chief Engineer, Water Resou rces over that of the Chief Engineer, Quality Control. 10. In the above background of the pleadings, Mr Dutta has persuasively urged that the post of Chief Engineer, Water Resources being higher in rank, a nd authority the promotion of the respondent No.3 thereto by overlooking the petitioner , superior to him on merit is per se illegal, arbitrary, discrimin atory and unconstitutional. The learned Senior counsel argued that in view of the undisputed long standing practice that had metamorphed into a binding execu tive decision to post/appoint the Chief Engineer, Quality Control as Chief Engin eer, Water Resources , the notification assailed makes an inexplicable departure therefrom and is liable to be adjudged arbitrary and lacking in bonafide. Refe rring to the pleadings of the parties bearing on this facet of the lis , Mr Dut ta has maintained that the post of Chief Engineer, Water Resources is the Hea d of the Department with additional and incidental status, power and responsibi lities elevating it to an echelon higher than that of the Chief Engineer, Qua lity Control and the petitioner ought to have been appointed thereto in prefer ence to the respondent No.3. The learned Senior counsel was assertively critica l on the fluctuating stands of the State respondents in this regard and dra wing the attention of this Court to their pleadings in WP( C) No.2675/2006 urge d for a remedial stringent action in law. He contended that it being apparent fr om the counter filed in the aforementioned writ petition that the post of Chief Engineer, Water Resources Department was evidently higher in rank and status tha n that of the Chief Engineer, Quality Control, they were estopped in law from a dopting an incongruous disposition which in the contextual facts ought to be co nstrued as contumacious. Mr Dutta submitted that it is inconceivable that the Water Resources Department is without a Head of the Department as is sought to be suggested by the State respondents being wholly repugnant to the fundamental concept of the organizat ional set up as envisaged by the Fundamental Rules and the Financial Rules gov erning the affairs thereof. The learned Senior counsel jettisoned the plea of preference of the respondent No.3 as a ST(P) candidate contending that had it been so, he, would had been promoted at the first instance as the Chief Engine er, Quality Control over the petitioner. He branded this claim to be an afterth ought. Though the two posts are in the same cadre having regard to the duties, functions and the responsibilities attached thereto, the post of Chief Engine er, Water Resources was higher in status and therefore posting thereto from tha t of Chief Engineer, Quality Control ought to be construed as promotion which ha d been unfairly denied to the petitioner, he urged. The decision of the Apex Cou rt in State if Rajasthan, Appellant v. Fateh Chand Soni, Respondent (1996) 1 SC C 562 was pressed into the aid of the arguments advanced. 11. Mr Talukdar while abiding by the pleaded averments of the State res pondents has submitted that the impugned order in the existing conspectus of facts is unassailable in law. The learned State counsel has produced the relevan t official records. 12. Mr Borbora, insisting on the equivalence of the two posts has emph atically urged that the essential characteristics thereof being strikingly id entical, all contentions to the contrary are fallacious and rejectable in limine . According to him, pay and emoluments, promotional prospects to higher posts , parity of the cadre and applicability of the Rules being analogous in both the posts a marginal difference in the nature of duties and the functions relata ble thereto cannot be a determinative criteria proclaiming higher status, auth ority and prerogative of the Chief Engineer, Water Resources. Mr Borbora dismi ssed the relevance of the practice observed by the Department in posting a Chi ef Engineer, Quality Control as Chief Engineer, Water Resources to confer any r ight to the petitioner and contended that as these were the feeder posts for t hat of the Secretary of the Department, the impugned notification did not in any way undermine the petitioner’s prospects for further promotion. There being neither any statutory provision nor any executive instruction of binding effec t vesting the petitioner with an unassailable right to claim posting as Chief E ngineer, Water Resources in preference to the respondent No.3, the cavil is mis conceived, he urged. The stand taken by the official respondents in WP( C) No.2 675/2006 is inconsistent with the basic premise recorded in the selection proce eding treating both these posts in the same cadre and is therefore , unworthy of any credit. The learned Senior counsel argued that at no point of time , any distinction was maintained between the two posts and for the promotion to the post of Chief Engineer, the cadre thereof is accepted to be of two and dependin g on the vacancy available the promottee is accommodated therein. That the Chief Engineer, Water Resources and the Chief Engineer, Quality Control both repor t directly to the Secretary of the Department clearly demonstrates amongst other s the equivalence of the two posts ,he urged. 13. I have lent my thoughtful consideration to the contesting pleadings and the arguments advanced. The prefatory facts culminating in the promotion of the parties are not in dispute. On the date of the petitioner’s promotion two vacancies had occurred , one each in the post of Chief Engineer, Quality Contr ol and Chief Engineer, Water Resources Department. Resultantly, the petitioner w as promoted as Chief Engineer, Quality Control on that date and one Sri Paran B aruah was accorded the charge of the office of the Chief Engineer, Water Resour ces . Inspite of the vacancies as above, the respondent No.3 as a reserved cat egory candidate was not preferred over the petitioner for such promotion. He was promoted later on 3.8.2007 as Chief Engineer, Water Resources which, accordi ng to the perception of the petitioner was by-passing him. Had the respondent a uthorities inclined to accept the respondent No.3’s preferential claim for pro motion , in recognition of his reserved category status, he would have been fav oured for the benefit at the first instance on 30.6.2007. It therefore does n ot commend for acceptance that the promotion of the respondent No.3 to the post of Chief Engineer, Water Resources was because of his reserved category identi fication . The official records produced , on perusal as well, do not demonstra te that the respondent No.3 had been promoted as Chief Engineer, Water Resourc es being a ST(P) candidate. 14. Noticeably, the respondents have not denied the transition of a C hief Engineer, Quality Control as Chief Engineer, Water Resources as evidenced by Annexure-D series before being considered for promotion to the post of Secre tary of the Department. They seek to trivialize this advancement as posting and not promotion. The following excerpt from the affidavit-in-opposition of the State respondents in WP( C) No.2675/2006 , Shri AK Mitra vs. The State of Assam and Ors, is significantly demonstrative of their stand on this facet of the deba te. 10. &.. Here it can be added that although the post of Chief Engineer, Quality Control and Chief Engineer,Water Resource are equivalent posts, yet the re some are differences as the Chief Engineer, Water Resource is the Head of De partment and the Appellate Authority for the staff under him which the Chief En gineer, Quality Control is not. The Department therefore has followed the practi ce to give proper justice to the prospective Addl. C.E.’s for promotion seriall y as Chief Engineer, Quality Control first and then to transfer him to the post of Chief Engineer, Water Resource, after gaining experience in the post of Chief Engineer, Quality Control. The above affirmation in the affidavit by the Deputy Secretary to the Go vt. of Assam, Water Resource Department , unambiguously proclaims the superiorit y of the post of Chief Engineer, Water Resource over that of the Chief Engineer, Quality Control. Not only the Chief Engineer, Water Resources is thereby constr ued to be the Head of the Department , the posting of the promotee Addl. Chief Engineer as the Chief Engineer, Quality Control as deductible is to equip him with necessary experience to place him thereafter as the Chief Engineer, Water Resources. This statement on behalf of the State is in marked alignment with t he subsisting arrangement of postings of the Chief Engineer, Quality Control a s Chief Engineer, Water Resources before his promotion to the next higher grade of the Secretary of the Department on his turn. A departure , however, has been sought for to be charted by the state R espondents in their affidavit in the instant proceeding, where they have laboure d to drill the plea, that though the post of Chief Engineer, Water Resources before the creation of the post of Chief Engineer, Quality Control was consider ed to be the Head of the Department , on the availability of two posts in that grade, both have been treated to be at par with the same pay and status and a re construed to be the feeder posts for promotion to the net higher rank. The affirmation in both the affidavits ( one in the present proceeding is by the Secretary to the Govt.of Assam, Water Resources Department) are true to the knowledge of the respective deponents. It is therefore obvious that one of them have misrepresented the facts before this Court which un-compromisingly w arrants a stringent action against the erring officer. The pleadings before a C ourt of law ought to essentially depict the correct and undisputed facts so a s to facilitate an appropriate adjudication based thereon and the law applic able. Any attempt to suppress or misrepresent facts would tantamount to interfer ence with the administration of justice and deflecting its course. Not only th ereby the rule of law would be undermined , it would be an affront to the dignit y and majesty of a court of law eroding its credibility in the estimation of th e society. The two conflicting stands as noticed hereinabove ,unerringly project a casual indifference and irresponsible approach of the concerned authorities of the Water Resources Department and is not only contemptuous ,but also deplor able. As the first step, this Court therefore directs the Chief Secretary of th e State to take note of the above anomalies and cause a discrete enquiry to be made at his level as to the underlying reason therefor and submit a report to t his Court within two(2) months herefrom. Depending on the report and disclosures contained therein ,further appropriate steps would be taken. I leave this issue at this in praesenti 15. The above, notwithstanding, the recorded view of the State Respondent s in WP( C) no.2675/2006 cannot be disregarded, more particularly when it accord s with the accepted practice of posting out a Chief Engineer, Quality Control t o be the Chief Engineer, Water Resources Department before his elevation to the next higher grade. 16. There is no dissension at the Bar that the Assam Engineering (F lood Control Department) Service Rules,1981 as amended applies to the Water Res ource Department. Rule 3 thereof includes the Chief Engineer in the Class I (Sen ior Grade) of the service. Promotion thereto is from the post of Addl. Chief En gineer on the basis of merit with due regard to seniority. The sanctioned strength displayed in Schedule-I to the Rules refers to one tem porary