WP(C) 3205 of 2011 Page 1 of 21

IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR,

TRIPURA, MIZORAM AND ARUNACHAL PRADESH)

WP (C) 3205 OF 2011

Shri Deepak Kumar Ghosh, Son of Late Santosh Kumar Ghosh, Resident of House No.8, Harabala Road, No.2 Bye Lane, Ulubari, Guwahati-7 District – Kamrup (M), Assam.

………Petitioner

-Versus-

1. State of Assam, Through the Chief Secretary to the Government of Assam, Dispur, Guwahati – 6.

2. Secretary, Government of Assam, Public Health

Engineering Department, Dispur, Guwahati-6.

3. Deputy Secretary, Government of Assam, Public Health Engineering Department, Dispur, Guwahati-6.

4. Shri Dilip Kumar Das, Son of late Kamal Chandra Das,

Resident of PHE Colony, Bamunimaidan, Guwahati-781021, District – Kamrup(M), Assam.

……….Respondents.

BEFORE THE HON’BLE MR. JUSTICE B. K. SHARMA

For the petitioner : Shri A.K. Bhattacharyya, Sr. Adv. Mr. B.K. Das, Adv. For the respondents : Mr. K.N. Choudhury, AAG, Mr. J. Patwary, Adv. Ms. R. Chakraborty, GA, Mr. M.K. Choudhury, Sr. Adv. Mr. R. Dhar, Adv. Date of hearing : 08.09.2011. Date of judgement : 30.09.2011.

WP(C) 3205 of 2011 Page 2 of 21

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 selection 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

equivalent rank, status, duties and responsibilities, there is nothing

wrong in promoting the respondent No.4 to the post of Chief

Engineer, PHED, which subsequently fell vacant, out of the same

selection. The whole controversy is as to whether both the posts are

equivalent in rank, status, duties and responsibilities, without any

distinctive features.

2. The rules governing the service conditions of the parties is

Assam Public Health Engineering Service Rules, 1996. As per the

said rule and schedule thereto, 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 commencement

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 laid 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 Chief Engineer in the rank of Chief

Engineer for the year 2011 arose, a meeting of the Selection Board

was held on 25.1.2011, in which five Additional Chief Engineers were

WP(C) 3205 of 2011 Page 3 of 21

considered and all of them were recommended in order of

preference. They 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 vacancies were calculated on the basis of 2 (two)

vacant posts of Chief Engineer and 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 Chief 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 petitioner 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 Secretary, for which he along with the petitioner

was considered by the DPC, which met on 28.2.2011. as per the said

recommendation, in order of preference, while Shri Borah stood at Sl.

No.1, the petitioner stood at Sl. No.2. When Shri Borah was promoted

to the post of Secretary, the resultant vacancy of Chief Engineer,

PHED was filled up by promoting the respondent No.4 from the

selection that was prepared on 25.1.2011 against 3 (three) vacancies

of Chief Engineer of which one was for immediate vacancy of Chief

Engineer, PHE and the 2nd one was for the vacancy of Chief Engineer,

Sanitation. The 3rd resultant vacancy was expected in anticipation

of promotion to the post of Secretary from the said two Chief

Engineers.

WP(C) 3205 of 2011 Page 4 of 21

7. When the 3rd vacancy arose, the petitioner made the

Annexure-I representation dated 24.2.2011 to the Secretary, PHE, for

promoting him to the post of Chief Engineer, PHE, on the ground of

being the senior most Chief Engineer and having been recommended

by the Selection Board, ahead of the respondent No.4. However, by

the impugned Annexure-J notification dated 13.6.2011, it is the

respondent 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 cannot claim any grievance against the

promotion of the respondent No.4, it is the stand 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,

duties 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 respondent 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), the 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 Chief Engineer, PHE, by the Govt.

of Assam in the PHED. By the said letter, the sanction of the Governor

of Assam to the upgradation of one post of Cell-Coordinator in the

rank of Additional Chief Engineer to the post of Chief Engineer

(Sanitation) with the support of UNICEF, Communication and

Sanitation Cell under PHED was conveyed with the following

conditions :-

“1. The upgraded post will exist upto Dec/04/till receipt of financial support of UNICEF after which the status quo ante prior to the upgradation will be resorted to.

WP(C) 3205 of 2011 Page 5 of 21

2. The Department will have to take prior approval of P & D and Finance Department 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. & Finance 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 petitioner has also annexed

documents to show that all administrative powers in the department

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 proceeded 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 Chief Engineer, PHE. These orders have been

highlighted to show superiority of the post of Chief Engineer, PGE

than that of Chief Engineer, PHE( Sanitation).

It is the specific case of the petitioner that Chief Engineer,

PHE (Sanitation) 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, PHE.

12. The petitioner has filed an additional affidavit, in which it has

been stated that the post of Chief Engineer, PHE (Sanitation) being a

ex-cadre post, could be abolished at any point of time. In this

connection, the petitioner has brought on record the Annexure-L

WP(C) 3205 of 2011 Page 6 of 21

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, learned Addl. Sr. Govt. Advocate, Assam in the

form of written instruction to her enclosing therewith certain

documents. In addition, the respondents have also submitted the

letter dated 18.7.2011 addressed to Smt. V.L. Singha, Addl. Sr. Govt.

Advocate by the Govt. of Assam, PHED, also furnishing therewith

written instruction 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 have any choice for a particular post

within the said two posts.

15. The petitioner in his affidavit-in-reply to the said affidavit,

while reiterating 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 administrative power which the post of

Chief Engineer, PHE carries. In this connection, he has enclosed the

Annexure-K notification dated 24.6.2009 by which distribution of

works between the two Chief Engineers was conveyed. For a ready

reference, the said notification is quoted below :-

“GOVERNMENT OF ASSAM PUBLIC HEALTH ENGINEERING DEPARTMENT

NOTIFICATION

Dated Dispur, the 24th June/2009

WP(C) 3205 of 2011 Page 7 of 21

No. PHED-19/2005/32 : Considering the present load and in the interest of public service, the Governor of Assam is pleased to distribute the following works between the 2 (two) Chief Engineer (PHE), with immediate effect and until further order for smooth functions of the Departmental activities.

Sl. No

Chief Engineer (PHE) Water Supply

Sl. No

Chief Engineer (PHE) Sanitation & 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 Schemes.

3 Procurement of materials of all above Schemes.

3 National Rural Drinking Water Quality Monitoring & Surveillance Programme (NRDWQM&SP).

4 Over all control of Administrative matter of establishment including transfer 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 materials of all above Schemes.

8 Compilation of Annual Plan

7 Budget & FOC of all above related matter.

9 Audit & Accounts of related matter

8 Annual Plan of all Budgeted 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 entrusted 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 Physical & Financial for above subject.

14 Execution of work of all type of Spot Sources

13 Training for above related matters.

15 Maintenance of :- 14 Implementation of all Schemes under Non-Plan,

WP(C) 3205 of 2011 Page 8 of 21

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 Supply Scheme.

iii) All Medical Colleges Water Supply Schemes.

iv) Water Supply Schemes of all types of education and other institutions.

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 Officers and staff

Chief Engineer (PHE) Water Supply

Chief Engineer (PHE) Sanitation & 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 - -

WP(C) 3205 of 2011 Page 9 of 21

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 respondent

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 merit and seniority, could be posted as Chief

Engineer, PHE (Sanitation) with inferior 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 the 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. Chakraborty,

learned Addl. Sr. Govt. Advocate, Assam. I have also perused the

entire materials including the records / file bearing No. PHED-

WP(C) 3205 of 2011 Page 10 of 21

58/2002 on the subject 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 the 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)

Supp 2 SCC 261 (Union of India Vs. A.K. Chakraborty), AIR 1974 SC

555 (E.P. Royappa Vs. State of Tamilnadu) and (2009) 14 SCC 656

(Rajasthan Judicial Service Officers’ Association Vs. State of

Rajasthan and others). On the other hand, Mr. K.N. Choudhury,

learned Addl. Advocate General, Assam, in his usual persuasive

persuasion submitted that both the posts being in equal rank and

status involving duties and responsibilities akin to each other, the

petitioner cannot make any grievance for his non-posting as Chief

Engineer, PHE. He submitted that the petitioner 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, PHE (Sanitation) is an ex-cadre post, he submitted that the

very fact that the post 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 342 (K.

Manickaraj Vs. Union of India & Ors) ; (2008) 9 SCC 242 (UOI Vs.

Pushpa Rani & 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 the Division Bench decision of this

Court in (2008) 1 GLT 886 (Uken Pegu Vs. Ramesh Ch. Bora & Ors.),

he submitted that the instant case is squarely covered by the said

decision, in which the Division Bench has answered a similar issue in

favour of the respondents and against the petitioner.

WP(C) 3205 of 2011 Page 11 of 21

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 respondents, submitted that both the posts being

equal in status and rank irrespective 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 responsibilities, 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 the aforesaid decision in Uken Pegu (supra)

on which the learned Addl. Advocate General 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 including 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 Pegu (supra) as according to the learned counsel for the

respondents, the said decision 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 whether the posts of Chief

Engineer (Water Resources) and Chief Engineer (Quality Control)

under State Water Resources Department, are equal in rank and

status, though the former post being designated as HoD. Setting aside

the judgement and order of the learned Single Judge, by which the

plea of the petitioner, as in the instant case, was accepted, the

Division Bench has held that when the rules clearly 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 there of duties and responsibilities involved in the posts cannot

lead to the inference that the post of Chief Engineer (QC) is inferior

to the post of Chief Engineer(WR). In this connection, the findings

recorded in the said judgement in paragraph 23, 24 and 25 are quoted

below :-

WP(C) 3205 of 2011 Page 12 of 21

“23. However, in our view the factors noted in the

impugned judgment could not be conclusive on the

equivalence of the two posts in question. Such factors may

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 Control report

directly to the Secretary of the Department and both the

posts are encadred in the same cadre and carry equal pay.

There are also instances where the Department had

departed from the usual practice of permitting movement

to the post of Chief Engineer, Quality Control before

permitting further movement to the post of Chief Engineer,

Water Resources. Inclusion of the two posts in the same

cadre under the Rules have been held by the learned Single

Judge to be not conclusive per se, on the issue of

equivalence of the two posts. But on the basis of other

factors such as past practice in the Department and certain

additional responsibilities attached to the post of Chief

Engineer, Water Resources, the learned Single Judge took

the view that the Chief Engineer, Water Resources enjoys

ascendancy in distinction power and 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, service 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 between 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 would obviously be contrary to the Rules in

force. The decisions which have been cited can only be

relevant and relied upon, when the Rules are ambiguous or

WP(C) 3205 of 2011 Page 13 of 21

is not conclusive on the status of the two posts in question.

But when the Rules are unambiguous, there cannot

obviously be any justification to rely upon past practice,

nature 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 that the factors on which the learned counsel for the

petitioner has emphasized and noted above, which were also the

factors urged on behalf of the writ petitioner in the said case, could

be relevant only if the rules leave scope for examining those factors

because of its ambiguity. In the said decision, it was found that 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 circumstances, the Division Bench has held that when

the rules clearly indicates the two posts to be of equal status and

rank as they have been encadred in the same cadre without any

distinction between the two posts, there cannot be any basis for

treating one post to be higher to the other, since such conclusion

can obviously be contrary to the rules in force.

24. The moot question which falls for consideration in this case is

as to whether like in the said decision in Uken Pegu (supra) in the

instant case also, the 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 course of hearing, nothing

could be shown that in-fact the said post has been encadred 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 will make the position clear.

25. In K. Manickaraj (supra), the Apex Court held that when the

upgraded posts were continuing for more than 9 (nine) years, no

WP(C) 3205 of 2011 Page 14 of 21

inference could be drawn that the upgradation was temporary. Unlike

the instant case in the said case the question that fell for

consideration of the Apex Court was as to whether the reservation

would be applicable to the upgraded posts while determining the

percentage of reservation. It was held that the percentage of

reservation would be applicable to the upgraded posts as well. It was

never said that the said upgraded posts should be treated as cadre

posts.

26. In Puspa Rani (supra), the Apex Court was concerned with

promotion and upgradation of posts. That was a case relating to cadre

restructuring. As in the case of K. Manickaraj ( Supra) in that case

also, the issue before the Apex Court was as to whether the policy of

reservation of posts for SC/ST can be applied at the stage of giving

effect to Cadre restructuring. Referring to the particular provision in

the Railway Establishment Manual it was held that the term

“Cadre” generally denotes the strength of a service or a part of a

service, sanctioned as a separate Unit. However, for the purpose of

roster, an wider meaning has to been given to the said term so as to

take within its fold the posts sanctioned in each grade. Reason for the

same was that the enlarged meaning to the term “Cadre” in the posts

involved in the Railway Establishment Manual were sanctioned with

reference to grades. It was in that context, it was observed that even

temporary, work charge, supernumerary and shadow posts created in

each grades can constitute part of the Cadre.

27. In the said case, some additional posts became available as a

result of restructuring of each cadres which were required to be filled

up by promotion. Considering its earlier decision and the particular

policy of the Railway Board, it was held that the Railways did not

commit any illegality by directing that the existing instructions with

regard to the policy of reservation of posts for SC and ST when

applied at the stage of effecting promotion against the additional

posts, stood created due to restructuring of the cadre.

WP(C) 3205 of 2011 Page 15 of 21

28. Above is not the position in the instant case. It is not a case of

restructuring of the cadre and application of reservation policy to the

restructured posts. The moot question is as to whether the post of

Chief Engineer, PHE (Sanitation) is a cadre post or not. The decision

in A.K. Subraman (supra) has been pressed into service to emphasis

that the cadre can consist of both temporary and permanent posts. It

was held that whenever, therefore, a vacancy arises in a permanent

post or in a temporary post, it would be a vacancy in the particular

grade and consequently the quota rule for promotion would apply.

Thus, in the said case also the whole emphasis was on the quota rule

to be applied in the promotional post. It was in that context it was

held that in a cadre there may be even temporary post. Referring to

this decision, Mr. K.N. Choudhury, learned AAG submitted that even if

the post of Chief Engineer, PHE (Sanitation) is treated as temporary

post but yet it will be a cadre post. However, what has lost sight of

is the fact that before terming the said post to be a temporary post

in the cadre of Chief Engineer, it will have to be made so by way of

encadrement and not otherwise. This aspect of the matter will be

discussed a little later.

29. In N. Suresh Nathan (Supra), the Apex Court emphasized that

if the past practice is based on one of the possible constructions

which can be made of the rules,upsetting the same would not be

appropriate. Thus, the observation regarding following the past

practice as a means of possible construction was in reference to the

rules. But in the instant case unlike the case of Uken Pegu, nothing

could be brought on record that the post of Chief Engineer

(Sanitation) is a cadre post and that as per the past practice being

followed in the department on the basis of the rules, the said post

was being filled up without any distinction on the scores of rank,

status, duties and responsibilities involved in both the posts.

30. The post of Chief Engineer, PHE (Sanitation) was brought into

existence by the aforementioned communication dated 19.11.2003.

Such a course of action was adopted with UNICEF support towards

implementation of certain works. Initially, duration of the upgraded

WP(C) 3205 of 2011 Page 16 of 21

post of Additional Chief Engineer as Chief Engineer (Sanitation) was

upto December, 2004 or till receipt of the financial support of UNICEF

with the clear stipulation that after that status quo – ante prior to

upgradation would be restored to and that the post of Additional

Chief Engineer would be kept in abeyance. Time to time, extension

and retention to the post was conveyed and now on the strength of

the Annexure-L letter dated 10.5.2011, the retention is upto

31.12.2011. Same is not the conditions in respect of the post of

Chief Engineer, PHE and naturally so, when it is a permanent and

cadre post.

31. On a question put to Mr. K.N. Choudhury, learned AAG, Assam

that in the event of not granting the extension and retention of the

post beyond 31.12.2011, what would be the status of the petitioner,

he fairly submitted that while the petitioner would occupy the post of

Chief Engineer, PHE presently being held by the respondent No.4, the

respondent No.4 would stand reverted to the post of Additional Chief

Engineer.

32. One significant aspect of the matter towards retention and

extension of the post is that such retention and extension is only for

the purpose of payment of salary. No rank and status have been

determined in respect of the said post in reference to the cadre post

of Chief Engineer, PHE. Similarly, there is also no mention of

equivalence of status and responsibilities of the said post with that of

Chief Engineer, PHE. Merely because the post has been continued

with time to time extension and retention, it will be a travesty of

truth to claim that the said post is a cadre post, be it permanent or

temporary.

33. In A.K. Chakraborty (supra) was pressed into service on behalf

of the petitioner to emphasis on recording of reasons in the matter of

supersession in promotion. Placing reliance on this decision, it was

submitted that when the petitioner occupied a higher merit position,

he could not have been divested of the promotional post of Chief

Engineer, PHE by way of allowing the respondent No.4 to supersede

WP(C) 3205 of 2011 Page 17 of 21

him. E.P. Royappa’s (supra) case was pressed into service to

emphasis on the declaration of equivalence of rank, status, duties and

responsibilities in respect of a post other than a cadre post. That was

a case relating to Indian Administrative Service and the Court was

concerned with IAS (Cadre) Rules under which the State did not have

power to alter strength and composition of cadre. It was held that if

the State Government wanted to appoint a member of the IAS to a

non-cadre post created by it, it could not have done so without

making a declaration setting out which was the cadre post to which

such non-cadre post was equivalent in status and responsibilities.

Referring to the provisions of the rules, it was held that the making of

such a declaration was a sine-qua-non and was not an idle formality

which can be dispensed with at the sweet will of the Government.

34. In the instant case, although the rules do not expressly require

any such declaration but it will have to be considered in the touch

stone of Rule-4 of the Recruitment Rules which provides that the

strength of each cadre in a class of service shall be such, as may be

determined by the Governor from time to time. Provided further that

the Governor may also hold in abeyance any post as and when

considered necessary. Normally, in the event of determination of

strength of a cadre as envisaged under Rule 4 of the Rules, there will

have to be an order or notification issued by the Governor. Whereas it

could be a temporary post or a permanent post but a declaration to

that effect will to a sine-qua-non, otherwise even an upgraded post

with the incumbent will be constituted to be a promotional post

adding to the cadre strength. In the instant case, the post of Chief

Engineer, PHE (Sanitation) was brought into existence by upgrading

one of the posts of Additional Chief Engineer with limited duration

and that too with the financial assistance of UNICEF.

35. Although the post has been continued after cessation of UNICEF

assistance w.e.f. 31.12.2008, nonetheless the continuation thereof is

only for the purpose of salary and not for any other purpose. While it

is true that by notification dated 24.6.2009, the works involved

between the two posts have been distributed, which has been quoted

WP(C) 3205 of 2011 Page 18 of 21

above, it will be seen that compared to the post of Chief Engineer,

PHE, the ex-cadre post of Chief Engineer, PHE (Sanitation) is

insignificant. In this connection, Clause 4 and 11 may be specifically

referred to which give the Chief Engineer, PHE, over all control of

administrative matter including transfer and posting, disbursement of

salary, etc and also the power to deal with the left out matters, not

specifically entrusted to Chief Engineer, PHE (Sanitation). Even the

sanctioned strength of the establishments will go to show the starring

disparity. Thus, here is a case in which the petitioner, although

senior both on merit and seniority than the respondent No.4, he

has been relegated to an inferior ex-cadre post while his junior,

both on merit and seniority, has been upgraded / promoted to the

post of Chief Engineer, PHE, with the status of HoD.

36. On perusal of the records, more particularly the file produced

by the learned State Counsel, what I have found is that in the note

dated 22.1.2011 furnished to the Minister, PHE, it was pointed out

that the post of Chief Engineer, PHE is in the rank of HoD and that

the post is required to be filled up on priority, considering the

continuity in day to day transaction by HoD of the activities related to

Water Supply and Sanitation. On receipt of the said note, the selectee

No.1 Shri Hemendra Kr. Borah was promoted to the post of CE, PHE

and the petitioner was promoted to the post of CE, PHE (Sanitation).

On promotion of Shri Borah to the post of Secretary, the post of CE,

PHE fell vacant, aspiring for which the petitioner made the

aforementioned representation followed by filling of the instant writ

petition.

37. When the matter was referred to the judicial department, it

was opined that since there is no interim order operating in the writ

petition, the Department could go ahead with the promotion of the

respondent No.4 as was proposed i.e. to the cadre post of Chief

Engineer, PHE.

38. By note dated 21.5.2011, put up to the Chief Secretary by the

PHED, it was pointed out that the post of CE, PHE was in the status of

WP(C) 3205 of 2011 Page 19 of 21

HoD. By yet another note dated 6.6.2011, put up by the same

authority to the Minister, it was further pointed out that from the

point of seniority, it is the petitioner who deserved the position of CE,

PHE. However, the departmental Minister by his note dated 7.6.2011,

issued direction for promotion of the respondent No. 4 to the said

post on the ground that the petitioner had already been promoted to

the post of CE, PHE (Sanitation). Thereafter, the impugned

notification dated 13.6.2011 was issued promoting the respondent

No.4 to the post of CE, PHE.

39. After filling of the writ petition, the Secretary, PHED vide his

note dated 13.7.2011 addressed to the Additional Chief Secretary,

Works Department, once again reiterated his stand that the said post

was required to be filled up by promoting the petitioner and not the

respondent No.4. The matter rested thus because of the instant

proceeding.

40. It will be appropriate at this stage to refer to the written

instruction furnished to the learned State Counsel by the Govt. of

Assam in the PHED about which mention has been made above. The

first instruction was by letter dated 18.7.2011 addressed to the

learned State Counsel by the Deputy Secretary, PHED. Alongwith the

said letter, parawise comments had been furnished. As per the said

parawise comments, the Programme “Total Sanitation Campaign” is

going on under supervision of CE, PHE (Sanitation) and that since both

the posts of CE, PHE and CE, PHE (Sanitation) are in the same scale of

pay, both carry equal status. In the other written instruction dated

6.8.2011 issued under the signature of the Under Secretary, PHED,

the CE, PHE exercises over all control and authority upon all

class/categories of employees irrespective of those working in

Sanitation under supervision of CE, PHE(Sanitation). The letter

further states that the CE, PHE (Sanitation) is devoid of

administrative arms and edge and plays virtually the second fiddle

to CE, PHE in the hierarchy. It has also been stated that the Chief

Engineer, (PHE) is in fact in higher echelon and status in the

department vis-à-vis Chief Engineer (Sanitation).

WP(C) 3205 of 2011 Page 20 of 21

41. During the course of hearing, it was brought to the notice of

the Court that while the petitioner will retire from service on

attaining the age of superannuation in March, 2012, the respondent

No.4 will retire in January, 2013. On being asked as to whether the

petitioner could be allowed to hold the post of CE, PHE till his

retirement in March, 2012 and thereafter the respondent No.4, the

learned counsel for the respondents were reluctant to answer the

same.

42. From the above findings on evaluation of facts, what is

emerged is that because of early arising of the vacancy of CE, PHE

(Sanitation), an ex-cadre post, the petitioner, although senior both

on merit and seniority, had to take the brunt but for which and

had he been junior, both on merit and seniority, would have got

the HoD post of CE, PHE. If the approach of the respondents is to

be accepted, it is cheer luck which favoured the respondent No.4.

This certainly cannot be the proposition of law in the matter of

promotion to a cadre post.

43. When the regular promotional vacancy occurred, it is the

petitioner who should have been considered for promotion to the said

post instead of promoting the respondent No.4 in view of the fact that

the post of CE, PHE(Sanitation) is an ex-cadre post and not included

in the recruitment rules. If the contrary action of the official

respondents is allowed, merit and seniority will have no place in the

matter of promotion and frustration will be generated leading to

overall demoralizing effect. It can be well imagined as to what would

be the demoralizing effect on the part of the petitioner, who

although senior both on merit and seniority than the respondent No.4,

has been made to work under him and that too in an ex-cadre post. It

is in this context, the AAG, Assam was asked as to what would happen

if the post being held by the petitioner comes to an end w.e.f.

31.12.2011, to which his fair answer was that in that event, the

respondent No.4 would stand reverted to the post of Addl. Chief

Engineer and the petitioner would be brought to the post of CE, PHE.

WP(C) 3205 of 2011 Page 21 of 21

If this can be allowed in such an eventuality, I see no reason as to why

the petitioner should not be allowed to hold the post of CE, PHE being

the cadre post in the rules, for which he was selected above the

respondent No.4.

44. For all the aforesaid reasons, I have no hesitation to allow the

writ petition by setting aside the impugned Annexure-J notification

dated 13.6.2011, with the further direction to the official respondents

to allow the petitioner to hold the post of CE, PHE by bringing the

respondent No.4 to the post CE, PHE (Sanitation). If both the posts

are equal in rank and status and carry the same duties and

responsibilities, as would argue by the respondents (although not

accepted), they should fairly accept that position. It does not matter

in which one of the posts, the respondent No.4 works.

45. The respondents shall now issue consequential orders in terms

of this judgement and order forthwith. It is made clear that while the

petitioner will continue in the post of CE, PHE till his superannuation

in March, 2012, the respondent No.4 will hold the post immediately

thereafter till his superannuation in January, 2013.

46. Writ petition is allowed, leaving the parties to bear their own

costs.

JDUGE

Sukhamay

WP(C) 3205 of 2011 Page 22 of 21

CAV JUDGEMENT FOR APPROVAL

WP (C) 3205 OF 2011

Shri Deepak Kumar Ghosh,

………Petitioner

-Versus-

State of Assam, Through the Chief Secretary to the Government of Assam, Dispur, Guwahati – 6 & Ors.

…….Respondents