WA 403/2007 BEFORE HON’BLE THE CHIEF JUSTICE MR J CHELAMESWAR HON’BLE MR JUSTICE HRISHIKESH ROY JUDGMENT AND ORDER (HRISHIKESH ROY, J) 1. The writ appeal No.402/07 has been filed Uken Pegu who was the responden t No.3 in WP (C) No.4072/07. The State of Assam and their officials have filed t he second writ appeal No.403/2007. The appellants are aggrieved by the judgment and order dated 15.10.2007, where by the learned Single Judge, allowed the writ petition No.4072/07 filed b y Romesh Ch. Borah (Chief Engineer, Quality Control) and quashed the impugned pr omotion order dated 3.8.2007, whereby the appellant Uken Pegu was posted to the post of Chief Engineer, Water Resources in the Department. 2. The service conditions, governing the appointment in the Water Resources Department (earlier known as the Flood Control Department) are governed by a se t of Rules, named as The Assam Engineering (Flood Control Department) Service R ules, 1981 (hereinafter referred to as the Rules). 3. Under Rule 3(1) amongst the Class I (Senior Grade), the posts of, inter alia, Secretary to the Government, Chief Engineer, Addl. Chief Engineer and Supe rintending Engineer are included. Rule 3(2) of the Rules provides that service may also include any post e quivalent to a post in any of the Cadre mentioned in Sub-Rule 1 or any cadre or post subsequently laid down by the Government, to be included in a cadre of serv ice. Rule 4 indicates the service strength of the Department as shown in sche dule I of the Rules. Rule 12 provides that all vacancies in class I cadre shall be filled up by promotion, subject to specialized needs of the Department. Rule 12 provides t hat promotion to the post of Secretary is to be made from the cadre of Chief Eng ineer. Rule 13(4)(d) initially provided for all promotions to be made to the ra nk of Superintending Engineer and above, only on ’merit’ basis but the said crit eria has since been amended and promotion to the rank of Superintending Engineer and above are now to be made on the basis of ’merit with due regard to seniorit y’ with effect from the 1990 by virtue of the amendment notified in the Gazette on 27.8.1990. 4. By notification dated 9.3.1987 the Government declared the post of Chief Engineer, Flood Control as the Head of the Department. Subsequently, by a Government memo dated 26.5.1999, the Government conve yed its sanction to up gradation of the post of Addl. Chief Engineer (Quality Co ntrol) to the post of Chief Engineer (Quality Control). Consequent upon the said up-gradation, the post of Addl. Chief Engineer (Quality Control) was abolished. The Chief Engineer (Quality Control) was ordered by the said notificatio n to function directly under the Secretary of the Flood Control Department. 5. By a separate notification, also issued on 26.05.1999, the Government no tified the functions to be performed by the Quality Control unit in the Water Re sources Department under the Chief Engineer (Quality Control), wherein different functions are mentioned in the said notification. 6. With the creation of the post of Chief Engineer (Quality Control), the c adre strength of Chief Engineer was raised to two and the two posts were Chief E ngineer (Water Resources) and Chief Engineer (Quality Control) with effect from 26.5.1999. 7. Following a meeting of the Selection Board under Rule 13(10) of the Rule s, selections and recommendations were made for promotion to the cadre of Chief Engineer and a list of Officers were prepared in order of merit. In the select l ist dated 31.3.2007, the merit position of the recommended officers were reflect ed as follows: 1. Sri Ziaul Islam, 2. Sri Romesh Chandra Borah (Writ Petitioner/respondent No.1), 3. Sri Uken Pegu (ST Plains/Writ Appellant) and 4. Sri Lohit Chandra Hazarika. 8. The respondent Romesh Ch. Borah was thereafter promoted on 30.6.2007 to the cadre of Chief Engineer and was posted as Chief Engineer, Quality Control. O n his such posting Romesh Ch. Borah and Paran Baruah, the Chief Engineer, Water Resources were considered for promotion to the higher post of Secretary, Water R esources Department. On the basis of recommendation of the Selection Board which met on 19.7. 2007, Paran Baruah was promoted to the Post of Secretary of the Department. In t he resultant vacant post of Chief Engineer, Water Resources, the appellant Uken Pegu was given promotion on 3.8.2007, by virtue of his merit position in the sel ect list dated 31.3.2007. 9. The respondent Romesh Ch. Borah challenged the said promotion and postin g notification dated 3.8.2007 by filing the W P (C) No.4072/07. The learned Sing le Judge by judgment dated 15.10.2007 allowed the petition and quashed the notif ication dated 3.8.2007 and gave direction for posting of Romesh Ch. Borah to the post of Chief Engineer, Water Resources, leading to the present Writ Appeals. 10. The learned Single Judge in his judgment took into account the practice followed in the Department, where an Addl. Chief Engineer is first promoted to t he cadre of Chief Engineer and posted as Chief Engineer (Quality Control) and th ereafter such Chief Engineer (Quality Control) are posted as Chief Engineer (Wat er Resources) and accordingly considered the later post as a promotion post. The other reasons noticed for treating the post of Chief Engineer (Water Resources) to be higher than the post of Chief Engineer (Quality Control) was t he fact that the Chief Engineer (Water Resources) is designated as the Head of t he Department. The nature of duties in the two posts of Chief Engineers have als o been considered as good reasons for treating one post to be higher then the ot her. 11. Mr. P K Goswami, Mr. A K Bhattacharya and Mr. K N Choudhury, the learned senior counsels assailing the decision of the learned Single Judge submits that when Rules do not make any distinction in the status of the two posts of Chief Engineers as both posts have been treated as feeder cadre posts for promotion to the higher post of Secretary, merely because of past practice and nature of res ponsibilities, would not permit taking a different view as both posts are equal in status and pay. Specific instance of respondent being considered for promotio n to the post of Secretary, while being the Chief Engineer (Quality Control) alo ng with Paran Baruah when the later was the Chief Engineer (Water Resources) has been cited to show that both posts are equal and have been treated to be equal by the Government and also under the Rules. 12. On behalf of the appellants, Mr. A.K. Bhattacharya, learned senior couns el submitted that merely because the Chief Engineer, Water Resources has been de signated as the Head of the Department, there is no scope to treat the post of C hief Engineer, Quality Control to be inferior than the post of Chief Engineer, W ater Resources. The decision of the Supreme Court reported in AIR 1967 SC 1684 (K. Gopaul v. The Union of India and ors) has been cited in support of the said submission. The following passage in Para 5 of K. Gopaul has been relied upon b y Mr. Bhattacharya:- We cannot accept the submission that the mere fact that the post of Accommodati on Controller, to which the appellant has been transferred, has not been design ated as the post of a Head of Department necessarily involves any reduction in r ank. In fact, it is well known that in Government service, there may be senior p osts, the holders of which are not declared as Heads of Department, while person s holding comparatively junior posts may be declared as such. The rank in Govern ment service does not depend on the mere circumstance that the Government servan t, in the discharge of his duties, is given certain powers. The above decision has also been cited in support of the contention made on behalf of the appellant that merely because the Chief Engineer, Water Resour ces have been given wider number of responsibilities than the Chief Engineer, Qu ality Control, would not necessarily mean that the post of Chief Engineer, Quali ty Control is inferior to that of Chief Engineer, Water Resources. 13. The decision of the Supreme Court in (1973) 3 SCC 862 (Lalit Mohan Deb v s. Union of India) has also been cited to contend that promotion would mean high er pay to a higher post unlike a placement in selection grade which may involve a higher pay but not a higher post. Accordingly it is submitted by Mr. Bhattacha rya that since the movement from the post of Chief Engineer, Quality Control to Chief Engineer, Water Resources does not lead to higher pay or movement to a hig her grade, the said two posts of Chief Engineers is to be construed to be equiva lent and of the same cadre. 14. The decision of the Supreme Court reported in (1997) 3 SCC 321 (State of Haryana & ors. vs. Ram Kumar Mann) has also been cited on behalf of the appella nt to contend that no enforceable right based on the doctrine of discrimination has been created in favour of the writ petitioner and accordingly the impugned j udgment interfering with the appointment and posting of the appellant to the pos t is vitiated in law. 15. Mr. K.N. Choudhury, learned counsel appearing for the State Appellant su bmits that in the instant case the Rules treat both the posts of Chief Engineer as equivalent and both the posts have been encadred under the Rules in the same grade. The Rules also comprehend the post of Chief Engineer, Water Resources and Chief Engineer, Quality Control to be the feeder posts for the post of Secretar y, Water Resources Department. Since there is no ambiguity in the Rules with reg ard to the equality of the posts, it is submitted that the two posts could not h ave been treated as unequal merely on the basis of the past practice followed in the Department where an incumbent was permitted movement to the post of Chief E ngineer, Quality Control, before permitting further movement to the post of Chie f Engineer, Water Resources. The learned counsel relies on the decision in Sanjay Kumar vs. Narinder Verma reported in 2006 (6) SCC 467 in support of his submissions. In Sanjay Kumar (supra) the Supreme Court held that where the Rules make no distinction and when the executives do not think fit to treat the two posts as unequal by making a distinction in the Rules, there can be no justification t o ignore the provisions enshrined in the Rules and treat the posts as unequal po sts. 16. Appearing for the writ petitioner Mr. N. Dutta, learned counsel submits that the nature of duties and responsibilities are relevant factors for deciding equivalence of post. He relies upon the decision of the Supreme Court reported in AIR 1968 SC 850 (Union of India & another vs. P.K. Roy & ors.) where the Supr eme Court has indicated the following criteria for determining equation of posts and relative seniority:- (i) the nature and duties of a post (ii) the responsibilities and powers exercised by the officers holding a post ; the extent of territorial or other charge held or responsibilities discharged ; (iii) The minimum qualifications, if any, prescribed for recruitment to the po st; (iv) The salary of the post. The learned counsel has also cited the decision of the Supreme Court rep orted in (1986) 3 SCC 7 (Vice Chancellor, L.N. Mithila University vs. Dayanand J ha) where it is held that the two posts of Principal and Reader cannot be regard ed as of equal status by virtue of the responsibilities discharged by them. Similarly it is submitted that the post of Chief Engineer, Quality Contr ol cannot be treated to be at par with the post of Chief Engineer, Water Resourc es since the later post carries far wider degree of responsibilities and functio ns. 17. Making submissions for relevance of past practice followed in the Depart ment to determine the equivalence of the posts, the Supreme Court decision repor ted in 1992 Supp (1) SCC 584 (N. Suresh Nathan and another v. Union of India and others) has been relied on by Mr. Dutta where the Supreme Court has held as fol lows :- The real question, therefore, is whether the construction made of this provisio n in the rules on which the past practice extending over a long period is based is untenable to require upsetting it. If the past practice is based on one of th e possible constructions which can be made of the rules then upsetting the same now would not be appropriate. It is in this perspective that the question raised has to be determined. 18. The decision of the Supreme Court reported in (1992) 1 SCC 105 (Dr. Uma Kant vs. Dr. Bhikalal Jain and other) has been cited to contend that where the Rules are capable of two interpretations, the Court should not accept the interp retation which will upset and reverse the long practice followed by the Departme nt in matter of movement from the post of Chief Engineer, Quality Control to the post of Chief Engineer, Water Resources. 19. Mr. Dutta also relies upon the Supreme Court decision in Union of India vs. S.S. Ranade reported in (1995) 4 SCC 462, where the Supreme Court held that in order to determine whether the two posts are equivalent or not, apart from th e pay scales attached to the posts, one must also look at the duties and respons ibilities that are attached to such post. 20. The Supreme Court decision in M.B. Joshi vs. Satish Kumar Pandey reporte d in 1993 Suppl. 2 SCC 419 has also been placed where the Supreme Court has held that in the absence of any specific Rules, the seniority amongst persons holdin g similar post in the same cadre is to be determined on the basis of length of s ervice and not on the basis of any other fortuitous circumstances. 21. The learned counsel also contends that merely because the pay scales of the two posts are equal, that cannot be the basis for deciding the post to be eq uivalent and factors like nature of duties, responsibilities etc. should also be taken note of, in deciding the equivalence of the posts. 22. In the instant case, for the first time both the posts of Chief Engineer , Quality Control and Chief Engineer, Water Resources fell vacant simultaneously . The learned Single Judge laid great emphasis on the past practice followed in the Department whereby an incumbent only after being posted as Chief Engineer, Q uality Control is posted as Chief Engineer, Water Resources and thereafter is co nsidered for promotion to the post of Secretary of the Department. The fact that the post of Chief Engineer, Water Resources has been decla red to be the Head of the Department was also considered by the learned Single J udge to be a relevant factor for deciding the said post to be higher than the po st of Chief Engineer, Quality Control. The learned Single Judge was also influenced by the fact that the budget for the Department is prepared by the Chief Engineer, Water Resources. The earlier stand taken by the Govt. in the counter affidavit submitted in the case of Anil Kumar Mitra vs. State of Assam in W.P.(C) No. 2675/06, where the deponent of the affidavit claimed the post of Chief Engineer, Water Resourc es to be a higher post than the post of Chief Engineer, Quality Control, was als o noted as a factor by the learned Single Judge to reach the impugned conclusion . The further fact that the Chief Engineer, Water Resources has been inclu ded in the Selection Board for making promotion under Rule 15 of the Rules and t hat he is also a member of Technical Advisory Committee for the Assam State Brah maputra Valley Control Board, which responsibilities have not been conferred on the Chief Engineer, Quality Control have been taken to be a reasonable basis for treating the post of Chief Engineer, Quality Control as a feeder post for filli ng up the post of Chief Engineer, Water Resources. On the basis of the aforesaid differentiation, it was held that the post of Chief Engineer, Water Resources is higher in status than the post of Chief E ngineer, Quality Control. 23. However, in our view the factors noted in the impugned judgment could no t be conclusive on the equivalence of the two posts in question. Such factors ma y be 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 Cont rol report directly to the Secretary of the Department and both the posts are en cadred in the same cadre and carry equal pay. There are also instances where the Department had departed from the usua l practice of permitting movement to the post of Chief Engineer, Quality Control before permitting further movement to the post of Chief Engineer, Water Resourc es. Inclusion of the two posts in the same cadre under the Rules have been h eld by the learned Single Judge to be not conclusive per se, on the issue of equ ivalence of the two posts. But on the basis of other factors such as past practi ce in the Department and certain additional responsibilities attached to the pos t of Chief Engineer, Water Resources, the learned Single Judge took the view tha t the Chief Engineer, Water Resources enjoys ascendancy in distinction, power an d status in office as compared to that of Chief Engineer, Quality Control. These external factors have been taken by the learned Single Judge to be good reasons to depart from the equivalent position of the two posts as reflected in the ser vice Rules. 25. But when the Rules clearly indicate the two posts to be of equal status in rank as they have been encadred in the same cadre without any distinction bet ween the Chief Engineer, Quality Control and Chief Engineer, Water Resources and both 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 basis for treating one post to be higher to the other since such conclusion woul d obviously be contrary to the Rules in force. The decisions which have been cit ed can only be relevant and relied upon, when the Rules are ambiguous or is not conclusive on the status of the two posts in question. But when the Rules are un ambiguous, there cannot obviously be any justification to rely upon past practic e, nature of responsibilities, special responsibility attached to the post, to t ake a view that one post is superior to the other. 26. It must also be observed that it is for the Government to decide as to w hich of the Chief Engineer should be posted as Chief Engineer (Water Resource) o r Chief Engineer (Quality Control). It would be inappropriate for a Court to int erfere with such exercise of the Government as the employer is expected to know how best to utilize the services of its officers. Under the circumstances, the G overnment’s decision in preferring to post the appellant as Chief Engineer (Wate r Resource) in preference to the respondent can hardly be subjected to judicial scrutiny, when we do not see any arbitrariness or mala fide exercise of power. 27. In view of above, the Writ Appeals are allowed and the impugned judgment and order dated 15.10.07 in W.P.(C) No. 4072/07 is hereby set aside and quashed and the notification dated 3.8.2007 (Annexure G) is declared to be legally vali d.