Research › Search › Judgment

Gauhati High Court · body

2002 DIGILAW 457 (GAU)

Progoti Bora v. State of Assam and Ors.

2002-11-15

AMITAVA ROY

body2002
AMITAVA ROY, J- Being aggrieved by the decision of the official Respondents to abandon the process of selection wherein the petitioner along with other eligible Superintending Engineers of the Mechanical cadre of the Irrigation Department, Government of Assam, were considered for promotion to the post of Additional Chief Engineer (Mechanical) of the said department and making it open for the Superintending Engineers of the Electrical cadre of the said Department as well, the petitioner has approached this court seeking redress. He has also prayed for an appropriate writ to direct the official respondents to promote him to the post of Additional Chief Engineer (Mechanical). Irrigation as per recommendation of the Selection Board and quash any order/recommendation in favour of the Respondent No. 3 for being promoted to the said post. 2. This court by order dated 27.7.2001 while issuing notice of motion, in the interim, directed that the post of Additional Chief Engineer (Mechanical). Irrigation Department shall not be filled up by any person outside the cadre of Engineers (Mechanical) of the said department. That interim direction is still in force. 3.1 have heard Mr. A.K. Bhattacharyya, learned Senior Advocate, Mr. O.K. Bhattacharyya, learned Senior Advocate assisted by Mr. B Chakraborty, learned Advocate for the petitioner, Mr. B.J. Talukdar, learned State counsel for the official Respondents and Mr. M. Bhuyan, learned Advocate for the Respondent No. 3. 4. The respective cases of the parties as can be gathered from the pleadings can be summarized as hereinbelow: :- The petitioner claims himself to be the Senior most Superintending Engineer of the Irrigation Department in the Mechanical cadre. After being selected by the Assam Public Service Commission in the year 1968 he was duly appointed to the post of Assistant Agricultural Engineer in the Agriculture Department, Assam and was posted as such at Guwahati and he joined in his duty on 17.4.1968. Pursuant to a decision of the Govt. of Assam, the petitioner along with many others in the Agriculture Department were transferred to the Irrigation Department, Assam with effect from 1.1.74 and was encadred in the Mechanical cadre of the Irrigation department. In the said department there are three separate cadres viz., civil, mechanical and electrical and the engineers of the Agriculture department were encadred as per their respective educational qualifications. In the said department there are three separate cadres viz., civil, mechanical and electrical and the engineers of the Agriculture department were encadred as per their respective educational qualifications. The petitioner was earlier promoted to the rank of Executive Engineer (Mechanical) Irrigation in May, 1976 and thereafter to the post of Superintending Engineer (Mechanical), Irrigation in March, 1992 in which post he is serving till date. 5. In order to fill up the post of Additional Chief Engineer (Mechanical), Irrigation, which was likely to fall vacant on the retirement of the incumbent Shri C.K.M Baruah on 31.7.2001, a Selection Board was constituted under the Service Rules for considering the cases of the eligible persons from the rank of Superintending Engineer (Mechanical) and accordingly the case of the petitioner was also considered. Tile petitioner claimed that he was duly recommended toy the Selection Board for such promotion. It was at this stage, the respondent No. 3 who according to the petitioner is junior to him in service submitted representation before the authorities staking his claim for promotion to the said post. The Respondent No. 3 was also appointed as Assistant Agriculture Engineer in the Agriculture department on 8.4.69 . In the combined Gradation list in the Agriculture Department published on 7.1.1976 the position of the petitioner was at Serial. No. 26 and that of the Respondent No. 3 at serial No. 48 as Assistant Agriculture Engineer. After the posts of Engineers were taken to the Irrigation Department as mentioned hereinabove, the Respondent No. 3 was en-cadred in the electrical cadre of the Irrigation department in terms of his qualification. Thereafter separate Gradation/seniority lists were prepared in the Irrigation department as on 1.4.74 and the name of the petitioner appeared in the Mechanical cadre and that of the Respondent No.3 in the Electrical cadre of the Department. According to the petitioner, therefore, the Respondent No.3 could not have any claim for being promoted to the post of Additional Chief Engineer (Mechanical). 6. At the time of formation of the Irrigation Department, Shri HC Gogoi, a Mechanical Engineer, was holding the post of Chief Engineer (Agriculture) in the Agriculture Department, equivalent to the rank of Additional Chief Engineer in the Irrigation Department. Shri HC Gogoi was given the post of Additional Chief Engineer, Irrigation (Agriculture) and in 1975 this post was re-named as Additional Chief Engineer, Zone-I (Irrigation), Guwahati. Shri HC Gogoi was given the post of Additional Chief Engineer, Irrigation (Agriculture) and in 1975 this post was re-named as Additional Chief Engineer, Zone-I (Irrigation), Guwahati. The Assam Engineering (Irrigation Department) Service Rules, 1978 (hereinafter referred to as the 'Rules') which came into effect from 5.4.1979 en-cadred the post of Additional Chief Engineer (Mechanical) in the Service. Sri HC Gogoi thereafter went on deputation as Managing Director of Agro Industries and thereafter as Managing Director of Minor Irrigation Development Corporation. In 1985 a post of Chief Engineer Mechanical & -Electrical) was created and Shri HC Gogoi was appointed to the said post on his return from deputation. In 1988 the Headquarter of the post of Additional Chief Engineer, Zone(l), Irrigation was shifted from Guwahati to Barpeta and since then the same was being held by the incumbents of the civil cadre of the department, though in terms of the Rules read with Schedule thereto; it belonged to the Mechanical cadre. Thereafter by a Notification dated 8.9.1992, the Electrical wing of the Irrigation department was placed under the direct control of the Chief Engineer (Irrigation) for major/medium projects and Chief Engineer (Minor Irrigation) for Minor Irrigation project. This was followed by another Notification dated 26. 11 .92 (Annexure-IV to the writ petition) declaring the post of Additional Chief Engineer (M & E), Irrigation as Additional Chief Engineer (Mechanical), Irrigation Guwahati with immediate effect. The said Notification mentioned that it modifies the earlier Notifications issued in that regard. According to the petitioner the post of the Chief Engineer (M & E) created in the year 1985 which in the meantime was down graded to the post of Additional Chief Engineer (M & E) was declared to be that of Additional Chief Engineer (Mechanical) by the Notification dated 26.11.1992. 7. The case of the petitioner is that under the Rules the Civil. Electrical and Mechanical wings or the Irrigation Department (hereinafter referred to as the 'Department') constitute separate cadres and the Respondent No. 3 being in the Electrical cadre of the department could have no claim for being promoted to the post of Additional Chief Engineer (Mechanical), Irrigation thereunder. 7. The case of the petitioner is that under the Rules the Civil. Electrical and Mechanical wings or the Irrigation Department (hereinafter referred to as the 'Department') constitute separate cadres and the Respondent No. 3 being in the Electrical cadre of the department could have no claim for being promoted to the post of Additional Chief Engineer (Mechanical), Irrigation thereunder. This was confirmed by the stand of the concerned authorities of the Government taken in the communication dated 17.5.2001 addressed to the Respondent No.3 in reply to the representation submitted by him, conveying the decision of the Government that after re- organisation of the Electrical Wing of the Deptt. the post of the Additional Chief Engineer (M & E) was declared as Addl. Chief Engineer (M) vide Notification dated 26.11.92 and the said post was a cadre post and therefore the question of consideration of officers from both the cadres for promotion did not arise. 8. However, there was sudden change in the attitude of the official respondents and the petitioner could come to learn that a decision had been taken that the process undertaken for promotion would be reviewed and till finalization thereof, the petitioner would not be allowed to hold the charge of the post of Additional Chief Engineer (Mechanical) or be promoted thereto on the basis of his selection. The representation submitted by the petitioner against the said decision having failed to evoke any positive result, he thus approached this court praying for the reliefs as mentioned hereinabove. 9. The official Respondents in their affidavit have contended that the reference of the post of Additional Chief Engineer in the Mechanical Branch in the Schedule to the Rules only signifies the strength of service in the particular Branch. According to them no post of Additional Chief Engineer (Mechanical) in the Department has been earmarked. They confirmed that after the amalgamation of the department of Flood control and Irrigation on the one hand and the Agriculture Department on the other to form the Irrigation Department in the year 1974, the post of Chief Engineer^ Agriculture) which existed in the Agriculture Department prior to amalgamation was re-named as Additional Chief Engineer, Irrigation (Agriculture). The said post was further re-named as Additional Chief Engineer, Zone-I (Irrigation) with Headquarter at Guwahati. The Headquarter at Guwahati was subsequently shifted to Barpeta. The said post was further re-named as Additional Chief Engineer, Zone-I (Irrigation) with Headquarter at Guwahati. The Headquarter at Guwahati was subsequently shifted to Barpeta. The first incumbent in the post of Additional Chief Engineer, Zone-I was Shri H.C. Gogoi, a Mechanical engineer, who held the post of Chief Engineer of the Agriculture Department prior to amalgamation. After the transfer of the Headquarter thereof in 1978, the post of Additional Chief Engineer Zone -I is being held by Civil Engineers alone with Headquarters at Barpeta. 10. In the year 1985 the Slate Government created one post of Chief Engineer (Mechanical & Electrical) in the department of Irrigation with concurrence from the Planning and Development Department as well as from the Finance and Personnel Department vide Notification No. 1 GN(E)31/84/PT/4 dated 27.2.85. The first incumbent of the said post was Shri HC Gogoi who had in the meantime returned from deputation. Shri HC Gogoi held the post till the year 1986 when he retired from service. At the time of his retirement i.e. 1986 there was neither any post of Additional Chief Engineer (Mechanical and Electrical) in the Irrigation department and therefore no incumbent was there in the said feeder post to occupy the post of Chief Engineer (Mechanical and Electrical). Therefore, in the year 1987 the Govt. of Assam vide Notification No. I GN(E) 186/86/15 dated 11.11.87 with the concurrence of the Finance and Personnel (A) Department down graded the post of Chief Engineer (M & E) to that of Additional Chief Engineer (Mechanical & Electrical) in the Irrigation Department. According to the State Respondents, the post of Additional Chief Engineer (M & E) created in November, 1987 as above is not the one referred to in Schedule-I of the Rules under the Mechanical Branch. 11. The official Respondents have maintained that the selection in question was not in respect of the post of Additional Chief Engineer mentioned in Schedule-I of the Rules under the Mechanical Branch. But, the selection, in fact, had been held to fill up the post only by considering the cases of the eligible Officers from the Mechanical cadre of the department. The official Respondents have maintained that the selection in question was not in respect of the post of Additional Chief Engineer mentioned in Schedule-I of the Rules under the Mechanical Branch. But, the selection, in fact, had been held to fill up the post only by considering the cases of the eligible Officers from the Mechanical cadre of the department. They have contended that the confusion arose due to Notification No. IGN(E) 141/84/58 dated 26.11.92 (Annexure-IV to the writ petition) whereby it was declared that the post of Additional Chief Engineer (M & E ) of the Department would stand renamed as Additional Chief Engineer (Mechanical), Irrigation. The official Respondents have asserted that the Notification dated 26.11.92 was issued without the concurrence of the Finance and Personnel Department and the selection was held under a wrong presumption that by the said Notification the post of Additional Chief Engineer (Mechanical and Electrical), Irrigation had been declared to be the post of Additional Chief Engineer (Mechanical), Irrigation only. The matter was, therefore, placed before the Personnel Department of the Govt. of Assam detecting the anomaly arising out of confining the consideration to the eligible officers of the Mechanical stream only. The official Respondents referred in their affidavit about the opinion of the learned Additional Advocate General, Assam who opined that the post of Additional Chief Engineer in question could not be confined to the Mechanical stream alone and should be made open to the Engineers from both Mechanical and Electrical stream of the Department. It was also advised to effect appropriate amendment of the Rules in that regard. It was on the basis of the view expressed by the Personnel department as well as the opinion rendered by the learned Advocate General, Assam, the State respondents decided to initiate fresh selection for promotion to the post of Additional Chief Engineer in question after taking into consideration the cases of the eligible officers from both the Mechanical and Electrical Stream of the department. 12. The stand taken by the respondent No. 3 in his affidavit is substantially the same as that of the official Respondents. According to him, the selection held for the purpose of promotion to the post of Additional Chief Engineer (M&E) by confining the consideration only to officers of the Mechanical stream is ex-facie illegal. 12. The stand taken by the respondent No. 3 in his affidavit is substantially the same as that of the official Respondents. According to him, the selection held for the purpose of promotion to the post of Additional Chief Engineer (M&E) by confining the consideration only to officers of the Mechanical stream is ex-facie illegal. He has maintained that no post of Additional Chief Engineer (Mechanical) exists in the department, more particularly on and from 11.11.87 when the Govt. of Assam with the concurrence of the Finance Department and Personnel Department had down graded the post of Chief Engineer (Mechanical & Electrical ), Irrigation Department vide Notification dated 11.11.87 (Annexure-2 to the affidavit filed by the Respondent No.3 )to that of Additional Chief Engineer (M & E). The Respondent No.3 further asserted that he had been promoted to the post of Superintending Engineer (Electrical), Irrigation department on 13.10.87 and he was senior to the petitioner who was promoted only on 25.3.1992 to the post of Superintending Engineer (Mechanical). He, therefore, denied that he was junior to the petitioner as claimed in the writ petition. He contended that in the inter se seniority list prepared and published by the Irrigation department in June, 1977 he was at SI. No. 1 in the Electrical cadre and likewise, inter-se seniority list was prepared and published in respect of other cadres of the department. According to him, therefore, seniority could not be reckoned on the basis of initial entry. He asserted that the seniority upto the level of Superintending Engineer in the Department is maintained cadre-wise and the duties and responsibilities of both the Mechanical and Electrical Engineers are totally different. However, the duties and responsibilities associated with the post of Additional Chief Engineer (Mechanical & Electrical) are mainly supervisory and administrative in nature. Therefore, the officers in the rank of the Superintending Engineer in both the cadres are made eligible to hold the said post. He maintained that the post of Chief Engineer (Agriculture) in the erstwhile department of Agriculture which was equivalent to the post of Additional Chief Engineer, Irrigation was initially held by Shri HC Gogoi, but on the transfer of the said post as Additional Chief Engineer Zone-I with Headquarter at Barpeta, the post of Additional Chief Engineer (Mechanical) of the department ceased to exist. After down grading the post of Chief Engineer (Mechanical & Electrical) which was created vide Notification dated 27.2.85, one Shri JC Das, the then Senior most Superintending Engineer (Mechanical) was promoted to the said post and on his retirement in the year 1998, the said post was held by one CK M Baruah who was also from the Mechanical cadre. With regard to the Notification dated 26.11.92 the stand of the respondent No.3 is that the department made certain administrative changes and had placed the Electrical wing (Irrigation) under the control of the Chief Engineer (Irrigation)/Chief Engineer (Minor Irrigation) as said changes were necessary due to sudden increase of workload in the Electrical wing as a result whereof for administrative exigencies, the incumbent functioning as the Additional Chief Engineer (Mechanical & Electrical) was relieved from performing responsibilities of Electrical works and the post was re-named as Additional Chief Engineer (Mechanical). According to him such Notification did not indicate the creation of the post of Additional Chief Engineer (Mechanical) and no concurrence to that effect was obtained from the Finance Department as well as Personnel department of the Govt. of Assam as required under the Assam Rules of Executive Business, 1968. The Respondent No.3 has contended that as on date no post of Additional Chief Engineer (Mechanical) has been created under Rule 3 of the Rules or with concurrence of the Finance Department and the Personnel department of the Govt. of Assam. No Notification, according to him has also been issued modifying or cancelling or rescinding the Notification dated 11.11.1987 down grading the post of Chief Engineer (M & E ) to that of Additional Chief Engineer (M & E) with the concurrence of the Finance Department. The Respondent No.3, contended that the post remained a joint cadre post of Mechanical and Electrical wings under the Irrigation Department to be filled up by promotion from amongst the senior most and eligible Superintending Engineers of Mechanical and Electrical streams of the department. 13. Mr AK Bhattacharyya, learned Senior counsel for the petitioner while referring to the various provisions of the Rules, more particularly Rules 3 and 4 and the Schedule thereof has argued that the post of Additional Chief Engineer for which selection had been held is the one under the Mechanical cadre of the Department to which the Respondent No.3 can have no manner of claim whatsoever. He argued that the post of Additional Chief Engineer in the Mechanical cadre of the department having been provided by the Rules and as no such post in the Electrical cadre of the department being made available thereunder, the impugned decision of the official Respondents to abandon the selection held for filling up the said post and in making it open for the Engineers of Mechanical and Electrical cadres of the department is clearly in contravention of the Rules, besides lacking in bonafide. The learned Senior counsel argued that it is evident from the Rule 3(1) and 3(3) of the Rules that the Civil, Mechanical and Electrical branches of the department are distinctly separate cadres and therefore as the Rules provide only for a post of Additional Chief Engineer in the Mechanical cadre, the Respondent No.3 who belongs to the Electrical cadre of the department was rightly not considered for promotion to the said post. Drawing the attention of the Court to the Notification dated 11.11.87 (Annexure-2 to the affidavit of Respondent No.3), and the Notification dated 26.11.1992 (Annexure-IV to the writ petition), the learned Senior counsel contended that it was clear therefrom that the post of Additional Chief Engineer (M & E), Irrigation which was down graded from the post of Chief Engineer (M & E) was declared to be Additional Chief Engineer (M), Irrigation, modifying the earlier Notification dated 11.11.87. The learned senior counsel urged that the situation is beyond doubt that the post for which the selection was held was that of the Additional Chief Engineer (Mechanical) as contemplated under the, Rules and as the Notification dated 26.11.92 was not challenged at any earlier point of time by him, the Respondent No.3 was estopped from contending that the Notification was either not sustainable in law or in facts. The learned Senior counsel in support of his submissions also invited the attention of this court to the communication dated 17.5.2001 (Annexure-V to the writ petition) wherein the claim of the Respondent No.3 was rejected on the ground that as the post of Additional Chief Engineer (M & E) after re-organization of the Electrical Wing of the department had been declared as Additional Chief Engineer (M) vide Notification dated 26.11.1992, which was a cadre post, question of consideration of officers from both the cadres, namely Mechanical and Electrical stream for promotion did not arise. The learned senior counsel rested his submissions on the said communication to contend that it was clear therefrom that the post of Additional Chief Engineer (M) after Notification dated 26.11.92 was a cadre post meant for the Mechanical wing of the department and therefore, the same was not available to be filled up from the officer of the Electrical wing thereof. He contended that in view of the provisions of the Rules there was no scope for any officer of the Electrical wing of the department to be considered for promotion to the post of Additional Chief Engineer (M) and such an avenue could be made available to the officers of the Electrical wing only by effecting appropriate amendments to the Rules. He, however, urged that even if such an amendment is effected, it would have only prospective effect and the same cannot divest or impair the vested right of the petitioner and other eligible officers of the Mechanical wing for such promotion. According to the learned Senior counsel the contention with regard to the opinion of the Personnel department and that of the learned Additional Advocate General, Assam in the matter are of no significance as the relevant records to that effect had not been produced before the court on behalf of the official respondents. In support of his submissions, the learned Senior counsel placed reliance on the following decisions :- (1) AIR 1987 SC 1676 (PD Aggarwal and ors. V. State of U.P. and ors.) (2) (1988) 2 SCC 214 (Dr Chakradhar Paswan Vs. State of Bihar and ors) (3) AIR 1990 SC 405 (P. Mahendran and ors Vs. State of Karnataka and ors.) (4) (1997) 10 SCC 419 (State of Rajasthan vs. R. Dayal and ors.) (5) (2001) 3 GLR 433 (Mrinal Kanti Ghosh and ors. Vs. State of Assam and ors.) 14. Refuting the above submissions, Mr M Bhuyan, learned counsel for the Respondent No.3 has strenuously argued that the post in question for which selection had been held is the one that was down graded from the post of Chief Engineer (M & E), Irrigation by Notification dated 11.11.87 (Annexure-2 to the affidavit of Respondent No.3) with the concurrence of the Finance department and that the Notification dated 26.11.92 (Annexure-IV to the writ petition) only re-named the same and therefrom it could not be construed that the post of Addl. Chief Engineer (M & E). Chief Engineer (M & E). Irrigation had ceased to exist and that the post of Addl. Chief Engineer (M). Irrigation had been created. In any case, according to the learned counsel, there was no concurrence of the Finance department for creation of the post of Addl. Chief Engineer (M), Irrigation as claimed by the petitioner. As a matter of fact, Notification dated 11.11.87 remains unmodified till date, he argued. The learned counsel placed reliance on Rule 3(4) of the Rules to contend that the Notification dated 26.11.92 and the communication dated 17.5.2001 (Annexure -IV and V to the writ petition) are opposed thereto inasmuch as no post of Additional Chief Engineer (M); Irrigation had been created as required under Rules 3 (4) and that too with the concurrence of the Finance department as required under Rule 39(3)(iii) of the Assam Rules of Executive Business, 1968. He, therefore, urged that the selection that was held for promotion to the said post by excluding from consideration the cases of the eligible officers of the Electrical wing of the department including the Respondent No.3 was ex-facie illegal and in violation of the Rules and therefore, the decision of the Government to review the selection and hold the same afresh is perfectly legal and justified. While conceding that all the incumbents in the post in question till date had been from the Mechanical cadre of the department, the learned counsel for the petitioner contended that it was so because they were seniors to the respondent No.3 in service and at the time of consideration of the eligible officers for filling up the post earlier, the respondent No.3 did not come within the zone of consideration. Mr Bhuyan maintained that the post of Additional Chief Engineer (M & E) had been created from that of Chief Engineer (M & E) vide Notification dated 11.11.87 pursuant to Rule 3(4) of the Rules whereby the post of Additional Chief Engineer (M & E) was created with the concurrence of the Finance Department and the said Notification had neither been withdrawn nor modified. Under the Rules, therefore, it was not permissible for the petitioner to contend that the said post was exclusively meant for the eligible officers of the Mechanical wing of the department. Under the Rules, therefore, it was not permissible for the petitioner to contend that the said post was exclusively meant for the eligible officers of the Mechanical wing of the department. According to him, it could never had been the intention of the Rule making authority to deny promotional avenue to the eligible officers of the Electrical wing of the department and therefore rightly the post of Additional Chief Engineer (M & E) was created and the impugned decision of the government therefore, cannot be faulted with. He submitted that the authorities relied upon by the learned counsel for the petitioner were not relevant for the purpose of the case. 15. Mr BJ Talukdar, learned State counsel while supporting the stand of the official respondents as reflected in the affidavit, argued that the post of Additional Chief Engineer (M & E) created vide Notification dated 11.11.87 by down grading the post of Chief Engineer (M & E) was with the concurrence of the Finance Department and the Notification dated 26.11.92 cannot be construed to convert the said post to that of Additional Chief Engineer (Mechanical) so as to restrict the members of the eligible officers of the Mechanical wing of the department alone for filling up the said post by promotion. He argued that as the earlier selection had been held taking the post to be meant only for the Superintending Engineer (M) of the department, the concerned authorities of the Govt. on a correct understanding of the Rules and on a consideration of all relevant aspects of the matter decided to rectify the anomalies by holding a fresh selection for the post, by extending the consideration to all eligible officers of both the Mechanical and Electrical wing of the department. Mr Talukdar, learned State counsel submitted that in any view of the matter, the post of Additional Chief Engineer (M), Irrigation as referred to the Notification dated 26.11.92 could not be said to be created with the concurrence of the Finance department which was a requirement under the relevant provisions of the Assam Rules of Executive Business, 1968 and on that ground as well, the plea of the petitioner that the post in question is exclusively meant for the eligible officers of the Mechanical wing of the department is not tenable in law as well as on facts. 16. 16. Before adverting to the rival contentions of the parties, the admitted facts may be noticed. The post of Chief Engineer (Agriculture) which existed in the Agriculture Department on being brought to the Irrigation department and re-designated as Additional Chief Engineer Zone-I, Irrigation, Guwahati was eventually shifted to Barpeta and since then it is being held-by Civil Engineers alone with Headquarters at Barpeta. The post of Chief Engineer (M & E) in the Department was created by Notification dated 27.2.85 and thereafter the said post was down graded to that of Chief Engineer (M & E) by Notification dated 11.11.87. The post of Chief Engineer (M & E) as well as to that of Addl. Chief Engineer (M & E) wore created/down graded with concurrence of the Finance department. The post of Addl. Chief Engineer (M & E) was subsequently declared as Addl. Chief Engineer (M) by Notification dated 26.11.1992. While the petitioner claims that after 26.11.1992, this post is the one contemplated under the Rules and is exclusively meant for the eligible Superintending Engineer of the Mechanical cadre of the department, the official respondents and the Respondent No.3 have taken a stand that this post is meant for both Mechanical and Electrical cadres of the department. The hub of the controversy is therefore, as to whether the post in question is Additional Chief Engineer (M) or Additional Chief Engineer (M & E) in the Department. 17. The provisions of the Rules would help to resolve the controversy. Rule 3 prescribes the Class, Cadre, Branch and Status of the Service i.e. Assam Engineering (Irrigation) Service. The cadre of Additional Chief Engineer is in Class I (Senior Grade) of the service. Rule 3(3) provides inter alia that the cadre of Additional Chief Engineers, Superintending Engineers, Executive Engineers and Assistant Engineer may have distinct branches, namely, Civil, Mechanical and Electrical and each branch may be deemed to be a separate cadre. Under Rule 3(4) the posts in cadres (i),(ii) and (iii) of Class I (Senior Grade) shall be borne in the Civil branch unless specifically created for any other branch, as may be considered necessary. Rule 4 provides the strength of service to be determined by the Governor from time to time and Schedule-I thereto specifies the strength of the cadre of the service on the date of commencement of the Rules. Rule 4 provides the strength of service to be determined by the Governor from time to time and Schedule-I thereto specifies the strength of the cadre of the service on the date of commencement of the Rules. Under the said Schedule a post of Additional Chief Engineer is provided under the Mechanical branch. The Schedule indicates the sanctioned strength of service and amongst others the scales of pay attached to the posts mentioned therein. It is noticeable that no post of Additional Chief Engineer is provided under the Electrical branch. Under Rule -12, promotion is to be made from the post of Superintending Engineer to Additional Chief Engineer in terms of Rule 13. General procedure for promotion is provided in Rule 13 of the Rules. Thereunder, before the end of each year, the Government is to make an assessment of the likely number of vacancies to be filled up by promotion in the next year in each cadre. For the said purpose, the Appointing Authority is to furnish to the Board, the list of officers in order of seniority eligible for promotion (separate lists for promotion to different cadres to be furnished), indicating the cadre to which the case of promotion is to be considered .The Appointing Authority after furnishing necessary informations would request the Board to recommend a list of officers found suitable for promotion in respect of each cadre. Rule 13(4) lays down the procedure for promotion to the cadres as mentioned thereunder. Rule 13(8) provides that the Select list so prepared is to remain valid for 12 months from the date of approval by the Commission in case of Assistant Engineer and for 12 months from the date of approval by the Board in other cases. The seniority of the members of the service is to be computed under Rule 22. Probation and confirmation is also subject to availability of permanent posts in the respective cadre as envisaged under Rule 23. Gradation list under Rule 24 is to be prepared and published every year containing the names of all members of the service cadre-wise in order of seniority. Rule 26 lays down that the members of Service would be employed in such manner as the Appointing Authority may decide, subject to the condition that a member belonging to a particular branch of the cadre shall be employed, within the same branch. Rule 26 lays down that the members of Service would be employed in such manner as the Appointing Authority may decide, subject to the condition that a member belonging to a particular branch of the cadre shall be employed, within the same branch. Rule 25 provides that the scale of pay of posts in the cadres of service, on the date of commencement of the Rules should be as in Schedule I. 18. On a reading of the provisions of the Rules, it is conspicuous that the concept of cadre as a distinct, separate and independent unit of the service pervades the entire scheme thereof. Under Rule 3(3), the cadre of Additional Chief Engineer of the Mechanical Branch is a separate cadre from that of cadre of Additional Chief Engineer of either Civil or Electrical branches. The provisions with regard to the appointment, promotion, probation, confirmation, seniority etc. have the concept of cadre in grained in them. Thus, a compartmentalization on the basis of cadres is evident in all such matters. It appears to be the mandate of the Rules that the cadres of posts mentioned thereunder belonging to the Civil, Mechanical and Electrical Branches would be separate wings so that the members of the service belonging to one cadre would continue to be therein without being permitted to cross over to the other cadres in service. Such being the make up of the Rules, any interpretation to the contrary, unless permitted thereby, would be opposed to the provisions thereof and cannot be countenanced in law. 19. The strength of the service in terms of Rule 4 of the Rules as mentioned above is reflected in Schedule I thereto. The Schedule contains the Category of posts; Scale of pay and the number of posts corresponding to each category. As mentioned above, under the Mechanical Branch one post of Additional Chief Engineer is provided. No such post is available under the Electrical Branch. It is not the case of the respondents that the Rules have undergone an amendment and that the Schedule has been modified atleast to the extent that one post of Additional Chief Engineer has been provided also under the Electrical branch of the department. In terms of Rule 25 of the Rules, the scale of pay of the posts mentioned in the Schedule have been provided. In terms of Rule 25 of the Rules, the scale of pay of the posts mentioned in the Schedule have been provided. On a plain reading of Rule 3(4) and the Schedule I to the Rules, it appears that a post of Additional Chief Engineer with the pay scale as provided therein (Schedule) has been created in the Mechanical Branch of the department. This court, therefore, is not in a position to uphold the contention of the learned counsel for the Respondent No.3 that the reference of the post of Additional Chief Engineer in the Mechanical branch in the Schedule of the Rules only signifies the strength of the service and nothing more. 20. It is no more res integra, that a Schedule is as much a part of the statute, and as much an enactment, as any other part and may be used in construing the provisions in the body of tile statute. The purpose and rule of a Schedule to a statute has been succinctly explained in Halsbury 's Laws of England, Fourth Edition as hereunder: "Schedules. To simplify the presentation of statutes, it is the practice for their subject matter to be divided, where appropriate, between sections and Schedules, the sections setting our matters of principle, and introducing the Schedules, and the Schedules containing all matters of detail. This is purely a matter of arrangement, and a Schedule is as much as part of the statute, and as much enactment, as in the section by which it is introduced." A combined reading of the Schedule along with other provisions of the Rules, more particularly, Rule 3(4) and 4 thereof in my view would clearly indicate that the Rule making authority had evidently intended to create a post of Additional Chief Engineer under the Mechanical Branch of the service, while in its wisdom had omitted to provide such a post in the Electrical branch. Considering the precepts of the Rules, the concerned authorities are, therefore, under an obligation to provide a post of Additional Chief Engineer (M) for being filled up from amongst the eligible officers of the Mechanical cadre of the service in the department. Considering the precepts of the Rules, the concerned authorities are, therefore, under an obligation to provide a post of Additional Chief Engineer (M) for being filled up from amongst the eligible officers of the Mechanical cadre of the service in the department. As noticed hereinabove, the post of Additional Chief Engineer (M) that became available immediately after amalgamation of the department mentioned above and re-designated as Additional Chief Engineer, Zone-I with Headquarters at Guwahati was shifted to Barpeta and had been made available only to Civil cadre of the department. The post of Chief Engineer (M & E) created in the year 1985 was down graded to that of Additional Chief Engineer (M & E) by Notification dated 11.11.87 and was declared to be Additional Chief Engineer (M). Irrigation by Notification dated 26.11.92. Having regard to the mandate of the Rules as above, one can safely conclude that the post of Additional Chief Engineer (M) in terms of Notification dated 26.11.1992 is the one contemplated under the Rules meant for the mechanical cadre of the department. The question is, as has been submitted by the official respondents and the Respondent No. 3, whether the concurrence of the Finance department for the purpose of declaring the post of Additional Chief Engineer (M & E) as Additional Chief Engineer (M) was necessary in terms of the Assam rules of Executive Business 1968. Mr Bhuyan, learned counsel for the Respondent No.3, in support of his argument in that regard as mentioned above had placed reliance on Rule 3(4) of the Rules and Rule 33(1) and 39(3)(iii) of the Assam Rules of Executive Business, 1968. 21. The Rules in question had been framed in exercise of powers under Article 309 of the Constitution of India. Under the said Article of the Constitution, Rules as made thereunder would be subject to the provisions of the Constitution and Acts of the appropriate Legislature only. The Rules framed under Article 309 are for the purpose of regulating the recruitment and conditions of service of the persons appointed to the services and posts in connection with the affairs of the Union or of any State and as the case may be, and those would be subject to any other provision of the Constitution on the same subject matter with which Rules deal with and further any Act of the appropriate Legislature also on the same subject. The scope and ambit of the said Rules thus cannot be made subject to any other restriction whatsoever. The Apex Court in the case of 5.5. Vadera and ors Appellants, Vs. Union of India and ors Respondents reported in AIR 1969 SC 118 , while dealing with the same topic had held that apart from the limitations as pointed out under Article 309 of the Constitution of India, there is none other, to curb the scope and ambit of operation of such Rules. The Rules unless they can be impeached on grounds such as breach of Part III or any other Constitutional provision, must be enforced, if made by the appropriate authority. 22. On the other hand, the Rules of Executive Business framed under Articles 166(2) & (3) of the Constitution are meant for convenient transaction of the business of the Government of the State and for allocation of the said business among Ministers, the Rules framed under Article 309 of the Constitution of India, while providing for the recruitment and conditions of service of the members contemplated therein, deal with their substantive rights, the provisions of the Rules for Executive Business are for the purpose of providing guidelines and procedure for execution of the business of the Government in a smooth and orderly manner. The two Rules, therefore, operate in different fields. Keeping in view the nature of the Rules, the provisions of the Constitution and the contents thereof, in my view, no such primacy can be acknowledged in favour of the Rules of Executive Business so as to set at naught any provision of the Rules under Article 309 of the Constitution, making them otiose and nugatory for all intents and purposes. 23. Having held so, it is necessary to examine the weight of the submissions of the learned counsel for the Respondent No.3 with regard to Rule 33(i) and 39(3) of the Assam Rules of Executive Business, 1968. Under Rule 33(i), the Finance Department has been entrusted with the functions amongst other to frame rules regulating the number, gradings or cadre and emoluments of posts under the State Government. No Rules as such were brought to the notice of this Court to buttress the arguments advanced in that regard on behalf of the Respondent No.3. Under Rule 33(i), the Finance Department has been entrusted with the functions amongst other to frame rules regulating the number, gradings or cadre and emoluments of posts under the State Government. No Rules as such were brought to the notice of this Court to buttress the arguments advanced in that regard on behalf of the Respondent No.3. Under Rule 39(3)(iii), the concurrence of the Personnel department is necessary in the matter of creation of any gazetted post or payment of additional remuneration to any gazetted officer. While it is so, Rule 39(1) requires that the Personnel department should ensure that the rules and principles relating to services in general are properly followed. On a combined reading of Clause (1) and (3) of Rule 39 thereof, in my opinion, the concurrence of the Personnel department would be separately necessary for creation of any gazetted post or for, payment of additional remuneration to any gazetted officer which is either not provided for in the related Service Rules or is beyond those sanctioned by such Rules. In a case where a post with the scale of pay is sanctioned, approved and provided for by related Service Rules, the existence thereof cannot be made subject to concurrence of the Personnel department so much so that even if a post or scale of pay attached thereto is sanctioned under Rules, some would still be subject to further concurrence of the Personnel department and would not be deemed to exist in absence of such concurrence. If the contention raised on behalf of the Respondent No.3 in this regard is upheld it would amount to making the Rules under Article 309 subservient to the Rules of Executive Business under Article 166 of the Constitution of India. This proposition is clearly impermissible in law. The Rule making process experiences different stages before formulation thereof with participation of different authorities at different levels and is a result of a consensus of all concerned so as to provide legally binding provisions for recruitment and for regulation of the conditions of service of the members to be recruited to the service in connection with the affairs of the State. The provisions of the Rules having been made and introduced, the same cannot be dislodged on the plea of procedural requirements as contained in the Rules of Executive Business. The provisions of the Rules having been made and introduced, the same cannot be dislodged on the plea of procedural requirements as contained in the Rules of Executive Business. The in escapable conclusion, considering the issue in hand, thus is, if a post is provided under the Service Rules, the requirements contained in the Rules of executive Business contrary to those in the Service Rules would not have any overriding effect and the related provisions of the Service Rules would have to be complied with. 24. In view of the above, the provisions of Rule 33(1) and 39(3)(iii) of the Assam Rules of Executive Business, 1968 are of no assistance to the Respondent No.3. Even on facts, the post of Additional Chief Engineer (M) brought into existence by Notification dated 26.11.1992 in my considered view do not require fresh concurrence of the Finance Department. The post of Chief Engineer (M & E) which was down graded to that of Additional Chief Engineer (M & E) with the concurrence of the Finance Department on being declared to be Additional Chief Engineer (M) does not result in expansion of the spread and reach of the post inviting additional financial commitment warranting fresh concurrence of the Finance Department, in view of the above, I am not in a position to persuade myself to concur with the submissions of the learned counsel for the Respondents in this regard as well. 25. It is noticeable that stand of the Respondents is that the Personnel department of the Government as well as the learned Additional Advocate General, Assam have entertained a view that the post in question cannot be confined to the eligible officers of the Mechanical cadre alone and should be made open to those from the Electrical cadre as well, in as much as, the said post was created by Notification dated 11.11.87 as Additional Chief Engineer (M & E) with the concurrence of the Finance Department. However, advice for amendment of the Rules had also been offered. It appears to me to be somewhat paradoxical, as, if the post in question is meant for the eligible officers of the Electrical cadre of the department as well as why the simultaneous advice for the amendment of the Rules? However, advice for amendment of the Rules had also been offered. It appears to me to be somewhat paradoxical, as, if the post in question is meant for the eligible officers of the Electrical cadre of the department as well as why the simultaneous advice for the amendment of the Rules? There cannot be two opinions that if the Rule are amended and the post of Additional Chief Engineer is provided also for the Electrical cadre, the eligible Superintending Engineers of the said cadre can be considered for promotion to the said post. However, such a course of action is not permissible under the Rules without amending the same. While keeping the Rules as it is, if a promotional avenue is provided to the rank of Additional Chief Engineer also for the eligible officers of the Electrical wing of the department, in the form of a post of Additional Chief Engineer (M & E) as aforesaid, it will on one hand open a way for promotion to the Electrical cadre, not sanctioned under the Rules and on the other, in a given fact situation, if a member of the Electrical cadre is promoted to the said post, would amount to denial of the promotional avenue approved for the eligible members of the Mechanical cadre; under the Rules. To permit the official respondents to implement the impugned decision, would lead to an anomalous situation to the detriment and prejudice of the eligible members of the Mechanical cadre of the department dehors the Rules. In my view the same cannot be permitted. 26. The provisions of the Rules referred to above, in my view are sufficiently clear and decisive and the official Respondents are obliged in law to comply with the same. Any interpretation thereof contrary to the spirit and purport of the Rules cannot be approved. As has been held by the Apex Court in Dadi Jagannadham, Appellant Vs. Jammulu Ramulu and ors, Respondents reported in (2001) 7 SCC 77, the settled principle of interpretation is that the court must start with the presumption that the legislature did not make a mistake and that it should see what it intended to do and therefore, the court must as far as possible develop a construction which would carry out the obvious intention of the legislature. The court should not add words to a statute or read words into it which are not there, specially when the literal reading leads to an intelligible result. The same view was taken by the Apex Court in a very recent decision reported in (2002) 7 SCC 273 (Union of India and ors, Appellants vs. Hansoli Devi and ors., respondents), where it observed that it is a cardinal principle of construction of a statute that when the language of the statute is plain and unambiguous, then the court must given effect to the words used in the Statute and it would not be open to the courts to adopt a hypothetical construction on the 'ground that such construction is more consistent with the alleged object and policy of the Act. It is not a sound principle of construction to brush aside words in a statute as being inapposite surplus age if they can have appropriate application in circumstances conceivably within the contemplation of the statute. Having regard to the above principles of interpretation of statutes applicable to the Rules as well, I am of the view that the post of Addl. Chief Engineer (M) created by the Notification dated 26/11/92 is the one contemplated thereunder and is therefore to be filled up from amongst eligible Superintending Engineers of the Mechanical cadre of the department. Any other interpretation as suggested by the Respondents would amount to doing violence to the language and purpose of the Rules. The authorities cited at the bar may now be referred to. The learned counsel for the petitioner referred to the decision of the Apex Court rendered in Y.V. Rangajah vs. J. Sreenivasa Rao and ors (supra) and M.K. Ghosh and ors; (supra) to emphasize upon the point that vacancies occurring at a particular point of time should be filled up in accordance with the Rules then in force and not on the basis of the amended Rules as may, have come into force at a subsequent point of time. These decisions, understandably, the learned counsel for the petitioner cited, to underline the argument that even in case, the Rules are amended, the amended Rules would have a prospective effect and cannot be applied to fill up vacancies which had occurred before such amendment. These decisions, understandably, the learned counsel for the petitioner cited, to underline the argument that even in case, the Rules are amended, the amended Rules would have a prospective effect and cannot be applied to fill up vacancies which had occurred before such amendment. According to him, the case of the petitioner as on today is governed by the un-amended Rules in as much as no amendment to the Rules has yet been made providing a post of Additional Chief Engineer to the Electrical cadre of the Department so as to permit the respondent No.3 to stake his claim for promotion to the post in question. While I am in respectful agreement with the proposition of law as laid down in the above decision, having regard to the fact that no amendment has yet introduced to the Rules, in my view the said decisions are of not much relevance to decide the issue in hand. In the case of P.D. Agarwal (supra) by making amendments to the related Service Rules, benefit of long tenure of service of the respondents therein for the purpose of computation of their seniority was sought to be denied. The said action was held to be illegal by the Apex Court. In Sukhdarshan Singh (supra) by amending the Recruitment Rules after initiation of the selection process under the old Rules, the right of the candidates who were qualified for selection and appointment on the date they had applied for the posts, was sought to be denied by the authority. The Apex Court in that situation held that every statute or statutory Rules is prospective unless it is expressly or by necessary implications made to have retrospective effect. The Apex Court held that the candidates were qualified for selection on the date they had applied for the posts and as the process of selection held already commenced, with the amendment of the Rules, the same cannot affect the existing rights of those candidates. The above two decisions, are more or less on principle in the same lines as those in the first batch of authorities dealing with the principle of filling up of vacancies by Rules in force at the time when the vacancies had arisen. 27. The above two decisions, are more or less on principle in the same lines as those in the first batch of authorities dealing with the principle of filling up of vacancies by Rules in force at the time when the vacancies had arisen. 27. "Cadre" in Service Jurisprudence means strength of service or part of service sanctioned as a separate unit is what has been laid down by the Apex Court in Dr Chakradhar Paswan (supra), relied upon by the learned Senior counsel for the petitioner. The aspect of cadre as a separate unit, as envisaged under the Rules has been dealt with in the earlier part of the judgment. I, therefore, do not like to repeat a detailed discussion thereon again. Suffice it to mention, that in view of the concept of cadre as recorded by the Apex Court, in the background of the provisions of the Rules, it can be safely concluded that the post / cadre of Additional Chief Engineer (M) as provided in the Schedule to the Rules is a distinct, different and independent unit of service meant only for the eligible members of the Mechanical wing of the department and no claim thereto by any member of the other cadres of the department can be entertained for the post. 28. Admittedly the selection had been held on 23.4.2001 and the writ petition had been filed on 27.7.2001. Under the Rules, the validity of the Select list is for 12 months from the date of approval of the Selection Board. From the materials on record, it appears that such approval has not yet been granted. In view of the above fact, it cannot be said that the validity of the Select list in the meantime has expired. The petitioner thus cannot be non-suited on that proposition as well. Another aspect of the matter cannot be lost sight of. The official respondents, inspite of specific orders of this court did not place the relevant records in support of their stand in the case for reasons best known to them. The contentions raised on their behalf in the pleadings therefore remain unsupported by contemporaneous official records. 29. Another aspect of the matter cannot be lost sight of. The official respondents, inspite of specific orders of this court did not place the relevant records in support of their stand in the case for reasons best known to them. The contentions raised on their behalf in the pleadings therefore remain unsupported by contemporaneous official records. 29. The upshot of the above discussion is that the decision of the official respondents to discard the selection process undertaken for promotion of the petitioner and other eligible candidates from the Mechanical cadre of the department with a view to hold a fresh selection by extending consideration also to the eligible candidates from the Electrical cadre of the department by treating the post in question to be that of Additional Chief Engineer (M &E) is in contravention" of the Rules and it thus adjudged, illegal and unconstitutional. As a corollary, all steps., taken pursuant thereto are not sustainable as well. The official Respondents have failed to act in terms of the Rules without any legally acceptable justification and/or reasons in taking the impugned decision and also acting in accordance therewith. 30. The petition, therefore, succeeds. The official respondents are hereby directed to complete the selection process, wherein the petitioner and other eligible candidates from the Mechanical cadre of the department had been considered for promotion to the above post of Additional Chief Engineer (M) and take the follow up steps under the Rules to effect such promotion. As the Selection process had been initialed in the year 2001, it is further ordered that the official Respondents would complete the exercise as indicated hereinabove within one month from the date of receipt of the certified copy of this judgment and order. The petitioner would submit a copy thereof before the appropriate authority so as to enable it to the needful as ordered. 31. With the above observations and directions the petition stands allowed. In the facts and circumstances of the case, there would be no order as to costs.