JUDGMENT : Nagendra Prasad Singh, J. – The appointment of respondent no. 5 as the Engineer-in-Chief (buildings) is the subject matter of controversy in the present writ application. 2. A post of Engineer-in-Chief in the Public Works Department was created in the year 1974. On 1.4.1982 the Public Works Departments-Road Construction Department and Building Construction Department. The post of Engineer-in-Chief remained with the Road Construction Department and a new post of Engineer-in-Chief (Buildings) was created by the State Government on 1.10.1982. One Shri Arjun Singh was appointed Engineer-in-Chief (Buildings) on ad hoc basis on 10.11.1982. He retired on 30.6.1983. On 11.7.1983 petitioner filed a representation saying that he being the senior most Chief Engineer should be promoted to the post of Engineer-in-Chief. By an ORDER :dated 3.8.1983 issued by the State Government, respondent no. 4, who was Engineer-in-Chief (Roads) was asked to perform the duties of the Engineer-in-Chief (Buildings) as well. 3. Petitioner filed the present writ application challenging the ORDER :of the State, Government dated 3.8.1983 aforesaid directing respondent no. 4 to take charge of the office of the Engineer-in-Chief, (Buildings). During the pendency of the writ application on 20.2.1984 a notification was issued by the State Government promoting respondent no. 5 as the Engineer-in-Chief (Buildings). According to, the petitioner, as he was appointed Chief Engineer with effect from 24.1.1980 and respondent no. 5 with effect from 1.8.1981 the ORDER :of the State Government promoting respondent no. 5 to the post of Engineer-in-Chief without considering the case of the petitioner is illegal, and unconstitutional. The stand of the petitioner is that the post of Engineer-in-Chief being an ex-cadre post cannot be filled up by treating it to be a reserved post for a member of Scheduled Caste. 4. Counter-affidavits have been filed on behalf of the respondents. On behalf of the State, it has been stated that “the post of Chief Engineer is a cadre post and is included in the Bihar Engineering Service Class I”. Regarding the post of Engineer-in-Chief it has been stated : – “…….There was no specific decision either to include this post of Engineer in Chief in the Bihar Engineering Service Class I or to keep it as an Ex-cadre post it has now been decided, by 'the Govt. Regarding the post of Engineer-in-Chief it has been stated : – “…….There was no specific decision either to include this post of Engineer in Chief in the Bihar Engineering Service Class I or to keep it as an Ex-cadre post it has now been decided, by 'the Govt. that the post of Engineer-in-Chief should be treated, as a cadre post in the Bihar Engineering Service Class I and will be a selection post.” The same stand has been taken in paragraph 11 of the counter-affidavit as follows : – “..... it will be clear from the Govt. ORDER :no. 4066 dated 14.3.74 that the post of Chief Engineer was up-graded as Engineer in Chief. At that time the said post was not included in Rule 3 of the Bihar Engineering Service Class I Rules nor there was any decision to keep the post outside the cadre. The question was under examination of the State Govt. and it has now been decided to treat it as a cadre post in the Bihar Engineering Service Class I and to take necessary action as may be required in this regard.” But in paragraph 14 of the counter-affidavit it has been admitted that post of Engineer-in-Chief has not yet been included in the cadre of Bihar Engineering. Service Class I in the following words : – “As stated earlier, steps have been taken to include the post of Engineer-in-Chief in the cadre of Engineering Service Rule.” 5. Respondent no. 5, being a member of Scheduled caste, has claimed the post of Engineer-in-Chief on basis of rotational reservation. 6. Rule relating to the Bihar Engineering Service Class I (hereinafter to be, referred to as ‘the Rules’) which is statutory in nature defines ‘the service’ to mean the Bihar Engineering, Service Class I. ‘Member of Service’ has been defined to mean a Government servant appointed to a post in the cadre of the Service. Part II of the Rules headed as cadre contains rule 3 which specifies the strength of the service, i.e., number of Chief Engineer, Deputy Chief Engineer, Superintending Engineer, Executive Engineer etc. Relevant part of proviso (a) to rule 3 is as follows : – “The Governor may increase or decrease the cadre by creating or reducing permanent or temporary posts from, time to time as may be found necessary.” Part III deals with the mode of recruitment to such cadre posts. 7. Relevant part of proviso (a) to rule 3 is as follows : – “The Governor may increase or decrease the cadre by creating or reducing permanent or temporary posts from, time to time as may be found necessary.” Part III deals with the mode of recruitment to such cadre posts. 7. In view of proviso (a) to rule 3 the Governor can increase the cadre by creating permanent or temporary posts from time to time. As such unless a formal decision is taken by the State Government to include the post pf Engineer-in-Chief in the cadre of Engineering Service Class I, the post of Engineer-in-Chief has to be held to be an ex-cadre post. In view of clear statement made in the counter – affidavit filed on behalf of the State that till today the post of Engineer-in-Chief has not been included in the Bihar Engineering Service Class I and “steps have been taken to include the post of Engineer-in-Chief in the cadre of Engineering Service Rule”, it is difficult to accept the contention raised on behalf of the respondents that even in absence of any formal decision by the State Government it is open to the State Government to treat that post as a cadre post for purpose of promotion. 8. Mr. Tara Kant Jha appearing on behalf of respondent no. 5 submitted that as one post of Chief Engineer was upgraded in the year 1974 as Engineer-in-Chief which was bifurcated in the year 1982 into two posts-Engineer-in-Chief (Roads) and Engineer-in-Chief (Buildings)-it shall be deemed that two cadre posts of Chief Engineer have been upgraded to the posts of Engineer-in-Chief, and, as such, they are posts in the Bihar, Engineering Service Class I. Merely because in the year 1974 a post of Chief Engineer was upgraded to the Post of Engineer-in-Chief, that by itself will not amount to the inclusion of the post of Engineer-in-Chief in the cadre of Bihar Engineering Service Class I. Apart from that, so far as the post of Engineer-in-Chief (Buildings) is concerned, it is admitted position that if was a new post which was created on 1.10.1982. That post admittedly has never been included in the Bihar Engineering Service Class I. 9. That post admittedly has never been included in the Bihar Engineering Service Class I. 9. Learned Additional Advocate General appearing on behalf of the State submitted, that although the posts of Engineer-in-Chief (Buildings) and Engineer-in-Chief (Roads) may not be in the cadre of Bihar Engineering Service Class I yet they can be treated as posts in a separate cadre of Engineer-in-Chief. In this connection a reference was made to rule 12 of the Bihar Service Code which is as follows : – “Cadre means the strength of the service or part of the service sanctioned as a separate unit.” For this argument, no foundation has been laid in the pleading. In the counter-affidavit filed on behalf of the State there is no such stand that for Engineer-in-Chief there is a separate Service cadre is created only after a formal decision by the State Government and it cannot be assumed merely on the basis that more than one post of Engineer-in-Chief exist. In my view, on the materials on record it is difficult to hold that the post of Engineer-in-Chief (Buildings) is a cadre post. As such, I shall proceed to examine the validity of the appointment of respondent no.5 on the said post of Engineer-in-Chief (Buildings) treating that post as an ex-cadre post. 10. On behalf of respondent no.5, in support of the contention that principle of reservation has been applied by the State Government even in respect of ex-cadre posts, reference was made to a letter dated 8.11.1975 issued by the Personnel Department of the State Government (Annexure-A to the petition for addition filed on behalf of respondent no.5) saying that a roster of reservation has been prepared in respect of the posts which have to be filled up on basis of reservation. It was urged that even a single post can alternatively be filled, applying the principle of reservation. In my opinion, there is nothing in this communication which purports to apply the principle of reservation even to an ex-cadre post. Then reliance was placed on behalf of respondent no. 5 on another communication of the State Government dated 30.6.1983 (Annexure-G to the application for addition filed on behalf of respondent no. 5). In my opinion, there is nothing in this communication which purports to apply the principle of reservation even to an ex-cadre post. Then reliance was placed on behalf of respondent no. 5 on another communication of the State Government dated 30.6.1983 (Annexure-G to the application for addition filed on behalf of respondent no. 5). In that it has been given out that the State Government had taken a decision to reserve posts to be filled up on, basis of reservation in the initial appointment as well as on promotion in all categories of the posts. According to respondent no. 5, the expression “all categories of posts” shall also include “ex cadre post”. Reference in this connection has also been made to another resolution of the State Government dated 15.12.1982 (Annexure-H to the application for addition filed on behalf of respondent no. 5) which says that roster of reservation should be prepared by different departments in respect of cadre as well as ex-cadre posts. In my view, on the materials on record it is difficult to hold that any formal decision has been taken, by the State Government to apply the principle of reservation even in respect of ex-cadre posts. But, even if any such decision has been taken, it shall not have the protection of Article 16(4) of, the Constitution, and as such, invalid. 11. Article 16(4) of the Constitution is as follows : – “Nothing in this Article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.” Article 16(4) clearly says that the power conferred by it can be exercised in cases where the State is of the opinion that any backward class of citizen is not adequately represented in the service under it. In other words, reservation can be made foe backward class in respect of appointments and posts in the service. By necessary implication this power cannot be exercised in respect of appointments to posts which are outside the service, i.e. ex-cadre posts. 12. In other words, reservation can be made foe backward class in respect of appointments and posts in the service. By necessary implication this power cannot be exercised in respect of appointments to posts which are outside the service, i.e. ex-cadre posts. 12. In the case of General Manager, Southern railway and another v. Rangachari (AIR 1962 SC 36) the scope of Article 16(4) was considered by the Supreme Court and it was pointed out as follows : – “In other words, the opinion formed by the State that the representation available to the backward class of citizens in any of the services is inadequate is a condition precedent for the exercise of the power conferred by Art. 16(4), and so the power to make reservation as contemplated by Art. 16(4) can be exercised only to make the inadequate representation in the service adequate. If that be so, both ‘appointments’ and ‘posts’ to which the operative part of Art. 16(4) refers and in respect of which the power to make reservation has been conferred on the State must necessarily be appointments and posts in the service. It would be illogical and unreasonable to assume that for making the representation adequate in the services under the State a power should be given to the State to reserve post outside the cadre of services. If the word ‘posts’ means ex-cadre posts reservation of such posts cannot possibly cure the imbalance which according to the State is disclose in the representation in services under it. Therefore, in our opinion, the key clause of Art. 16(4) which prescribes a condition precedent for invoking the power conferred by it itself unambiguously indicates that the word ‘post’ cannot mean ex-cadre posts in the context.” Again, in the case of C.P. Rajendran v. Union of India and others ( AIR 1968 SC 507 ) it was observed by the Supreme Court : – “In other words, Article 16(4) is an enabling provision and confers a discretionary power on the State to make a reservation of appointments in favour of backward class of citizens which, in its opinion, is not adequately represented in the Services of the State.” 13. Faced with the situation that the post of Engineer-in-Chief is an ex-cadre post which cannot be reserved for members of Scheduled Caste, learned Additional Advocate General urged that while appointing respondent no.5 on ad hoc basis even the case of the petitioner has been considered. In this connection, he made reference to the memorandum which was put up before the Council of Ministers (Annexure-B to the reply pm behalf of the State). He pointed out that in the memorandum there is reference about the petitioner as well. It is difficult to accept this contention. In that very memorandum more than once it has been repeated that the proposal was to appoint respondent no. 5 by promotion on basis of rotational. It has been pointed out n the memorandum that question of considering the case of the petitioner would have arisen only if the post of Engineer-in-Chief was to be filled up treating it to be an unreserved post. In view of the materials on record, there is no escape from the conclusion that respondent no.5 has been appointed to the post of Engineer-in-chief, by promotion treating the post as a reserved post for the members of the Scheduled castes. As I have already pointed out above that the post of Engineer-in-Chief being an ex-cadre post, cannot be filled up on basis of reservation, I am left with no option but to hold that the appointment of respondent no.5 to the post of Engineer-in-chief (Buildings) by the impugned notification is illegal, unconstitutional hit by Articles 14 and 16 of the constitution. 14. In the result, the writ application is allowed and the impugned notification dated 20.2.1984 promoting respondent no.5 to the post of Engineer-in-Chief (Building) is quashed. There will be no ORDER :as to costs. Application allowed.