Gauhati High Court
Deepak Kumar Ghosh vs The State Of Assam And Ors on 30 September, 2011
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 1 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 2 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 3 of 217. 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 4 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 5 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 6 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. Chief Engineer (PHE) Sl. Chief Engineer (PHE) No Water Supply No Sanitation & Maintenance 1 Execution of all Rural 1 Sanitation - Total Piped Water Supply sanitation Campaign (TSC).
Scheme (P/W/S) 2 All Deposit Schemes 2 Swajaldhara Schemes.
(PWSS) in Rural Areas 3 Procurement of materials 3 National Rural Drinking of all above Schemes. Water Quality Monitoring & Surveillance Programme (NRDWQM&SP).
4 Over all control of 4 Communication & Capacity Administrative matter of Development Unit (CCDU).
establishment including
transfer and posting,
disbursement of Salary
etc, both Plan & Non-Plan.
5 Court Cases of all above 5 State and District level
related matter laboratories.
6 Assembly Question of all
related matter
7 Budget & F.O.C. of all 6 Procurement of materials
above related matter of all above Schemes.
8 Compilation of Annual 7 Budget & FOC of all above
Plan related matter.
9 Audit & Accounts of 8 Annual Plan of all Budgeted
related matter matter.
10 CAG matters of above 9 Assembly Question of all
related matters related matter.
11 Any other matter already 10 Audit & accounts for above
dealt by the Chief matter.
Engineer (PHE) but not
entrusted to Chief
Engineer (PHE) Sanitation
& Maintenance.
12 Monitoring for both 11 CAG matters for related
Physical & Financial for matter.
above subjects
13 Training for above related
12 Monitoring for both
matters Physical & Financial for
above subject.
14 Execution of work of all 13 Training for above related
type of Spot Sources matters.
15 Maintenance of :- 14 Implementation of all
Schemes under Non-Plan,
WP(C) 3205 of 2011 Page 7 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 Proposed Distribution of strength Officers and staff of present Chief Chief CE Office Engineer Engineer (PHE) Water (PHE) Supply Sanitation & Maintenance Addl. Chief Engineer 2 2 1 Superintending Engineer 3 2 1 Executive Engineer 9 5 4 Asstt. Executive 1 1 -
Entineer (TC) 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 8 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 9 of 2158/2002 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 10 of 2120. 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 11 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 12 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 13 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 14 of 2128. 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 15 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 16 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 17 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 18 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 19 of 2141. 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 20 of 21If 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 21 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 WP(C) 3205 of 2011 Page 22 of 21