JUDGMENT B.K. Sharma, J. 1. Both the writ petitions are connected to each other dealing with the same claim and counter claim and thus were heard analogously and are being disposed of by this common judgment and order. 2. In WP(C) No. 1043/2003, the Petitioners have assailed the vires of Rule 12(4)(v) of the Assam Agricultural Service Rules, 1980 on ground of being inconsistent with the other provisions of the Rules. The prayer made in the writ petition is to consider the case of the Petitioners for promotion on that basis. On the other hand the Petitioners in WP(C) No. 2195/2003 have made a prayer for promotion consistently with the provisions of the said Rules with due reservations including reservations for backlogs as per the provisions of Assam SC and ST (Reservation of Vacancies and Posts) Act, 1978 and the Assam SC and ST (Reservation of Vacancies in Service and Posts) Rules, 1983. 3. The Petitioners in WP(C) No. 1043/2003 are in the cadre of Junior Subject Matter Specialist (JSMS) in the Department of Agriculture, while the Petitioners in WP(C) No. 2195/2003 are in the cadre of Agricultural Extension Officer (AEO). 4. The Petitioners in WP(C) No. 1043/2003 seek to represent 279 officers forming the cadre of JSMS. They are Graduates in Agriculture and were initially appointed as AEO in the Department. After rendering service as AEO for a considerable period of time, they were transferred and posted as JSMS. According to them, although in the orders, the expression "transfer" was used, but in fact the same was by way of promotion. Although the Petitioners remained in the same scale of pay, but on their posting as JSMS, they were provided with a special pay of Rs. 50/-, which has since been enhanced to Rs. 75/-. Such posting was given to the seniormost AEOs and as per the order, they were given the status of JSMS. Thus, although the Petitioners were transferred from the cadre of AEO to the cadre of JSMS in the same pay scale, but as per the recital in the order they were given the status of JSMS with a special pay. The order reads as follows: No. AGA. 287/96/115: In the interest of public service the Governor of Assam is pleased to transfer the following seniormost Agril. The order reads as follows: No. AGA. 287/96/115: In the interest of public service the Governor of Assam is pleased to transfer the following seniormost Agril. Extension Officers allowing them the status of Junior Subject Matter Specialist and equivalent posts, in the identical scale of pay of Rs. 1835-4325/- with special pay of Rs. 50/- p.m. where applicable, and other allowances as admissible under the Rules, and post them at the places shown against each of their names, with immediate effect and until further orders. 5. According to the Petitioners, on their posting as JSMS, they shouldered higher responsibility with higher rank and status, as will be evident from the language of the order and granting of special pay which is not available to AEOs. The Government of Assam, in the Agriculture Department issued notification dated 25.4.2000, notifying that the posts with the nomenclatures as indicated in the notification itself belonged to the cadre of JSMS. A further notification, dated 26.8.2003 was issued changing the existing nomenclatures (designation) of all the scheduled posts of the cadre of JSMS and AEO as per Annexure-1 annexed to the notification as per which the various posts of JSMS were designated as Senior Agricultural Development Officer and that of AEO as Agricultural Development Officer. According to the Petitioners an AEO can be posted as JSMS only after attaining experience in the post of AEO and on the basis of seniority and that the there cannot be any equation of the posts of AEO and JSMS having regard to the rank and status of the posts of JSMS. The Government decided to upgrade 100 posts of JSMS to the next higher grade of Sub-divisional Agriculture Officer (SDAO) providing that upon such upgradation, the 100 posts of JSMS shall stand abolished. To that effect, Annexure D notification dated 22.1.2002 was issued. 6. Two separate seniority lists, one for the JSMS and another for the AEOs were published by Annexure-E and E/1 notifications dated 23.5.2002 and 10.7.2002 respectively. The number of JSMS included in the list was 279 as against 543 AEOs in the seniority list of AEO. To that effect, Annexure D notification dated 22.1.2002 was issued. 6. Two separate seniority lists, one for the JSMS and another for the AEOs were published by Annexure-E and E/1 notifications dated 23.5.2002 and 10.7.2002 respectively. The number of JSMS included in the list was 279 as against 543 AEOs in the seniority list of AEO. The issue raised by the Petitioners themselves in the writ petition is "whether the posts of JSMS is of higher rank and status carrying higher responsibilities belonging to different cadre than the AEO?" Referring to the various provisions of the Assam Agricultural Service Rules, 1980, it is the case of the Petitioners that the posts of JSMS are in the higher rank and status carrying higher responsibility than that of the posts of AEO. Making a challenge to Rule 12(4)(v) of the Rules making provision for promotion to the next higher grade of SDAO from both the cadres of JSMS and AEO, it is the case of the Petitioners that they alone are entitled to be considered for promotion to the exclusion of AEOs, who according to them are in a different and lower cadre. 7. As against the aforesaid claim of the Petitioners, the Petitioners in WP(C) No. 2195/2003 make the reverse claim. According to them, both the cadres of AEO and JSMS carrying the same scale of pay are of equal status and rank and they carry the same responsibility. They are also interchangeable and merely because a special pay of Rs. 75/- is provided to the JSMS on their posting as such, same is not decisive of their claim of constituting a separate and higher cadre. It is the further case of the Petitioners that the rule making authority having regard to such a factual aspect of the matter made provisions for promotion from both the cadres to the rank of SDAO and that there is no ambiguity in the rule requiring any interference as has been contended by the Petitioners in WP(C) No. 1043/2003. 8. It will be appropriate to refer to the relevant provisions of the Rules to appreciate the respective case of the Petitioners in both the writ petitions. 3. 8. It will be appropriate to refer to the relevant provisions of the Rules to appreciate the respective case of the Petitioners in both the writ petitions. 3. Class and cadre- (1) The Service shall consist of the following classes and cadres- (a) Class -1 (Senior Grade)- It shall include the cadre: (i) Director; (ii) Additional Director; (iii) Joint Director comprising the post of Joint Director of Agriculture and Senior Subject Matter Specialist and (iv) Deputy Director, comprising the posts of Deputy Director of Agriculture and District Agricultural Officer (b) Class-I- It shall include cadres of-(i) Subject Matter Specialist; and (ii) Sub-Divisional Agricultural Officer. (c) Class II- It shall include the cadres of- (i) Junior Subject Matter Specialist; and (ii) Agricultural Extension Officer. Note: The post of Agricultural Officer at Majuli in the scale of pay of Rs. 500-35-745-EB-35-1, 025-EB-40-1,220/- will continue as such and be treated as belonging to the cadre of Junior Subject Matter Specialist in Class-II until Agricultural Subdivision is created there and the post included in the cadre of Subdivisional Agricultural Officer in Class-I. 3(2) The posts equivalent to the posts in the cadre of the service and included in the respective cadres as on the date of commencement of these rules are mentioned in Schedule I 4. Strength of Service - The Strength of each cadre in a class of the service shall be such as determined by the Governor from time to time. The strength of the cadre of the service on the date of commencement of these rules shall be as shown in schedule I: provided that the Governor may hold in abeyance any post as and when considered necessary. 5. Method of recruitment- Recruitment to the service shall be made in the manner prescribed herein below: - (1) By direct recruitment in accordance with Rules 6 and 18 to the cadre of Director. (2) By promotion in accordance with Rules 12 and 13 to the cadre of Additional Director, Joint Director, Deputy Director for and Subdivisional Agricultural Officer. 5. Method of recruitment- Recruitment to the service shall be made in the manner prescribed herein below: - (1) By direct recruitment in accordance with Rules 6 and 18 to the cadre of Director. (2) By promotion in accordance with Rules 12 and 13 to the cadre of Additional Director, Joint Director, Deputy Director for and Subdivisional Agricultural Officer. (3) (a) By direct recruitment against 25 percent of the strength of the cadre of Subject Matter Specialist and against 75 percent of the strength of the cadres of Agricultural Extension Officer and Junior Subject Matter Specialist in accordance with Rules 6 and 18; and (b) By promotion in accordance with Rules 11,12,2\13 and 14 against 75 percent of the strength of the cadre of Subject Matter Specialist and against 25 percent of the strength of the cadre of Agricultural Extension Officer and Junior Subject Matter Specialist. 6. Director recruitment 0(1) Subject to Sub-rule (3) of Rule 11, direct recruitment to the cadres of Director in Class-I (Senior Grade) Subject Matter Specialist in Class-I and Agricultural Extension Officer and Junior Subject Matter Specialist in Class-II of the service shall be made by the Governor on the basis of the recommendations made by the Commission in accordance with the procedure hereinafter provided; (a) Before the end of each year the Government shall make an assessment regarding the likely number of vacancies to be filled up by direct recruitment during the next year and shall intimate the same to the Commission together with the details about reservation for candidates belonging to Scheduled Caste/Scheduled Tribes or any other category as laid down by the Government as provided under Rule 17 and about carry forward of such reservation; (b) The Government shall simultaneously request the Commission to recommend a list of candidates for direct recruitment, in order of preference; (c) The Commission shall make a selection in accordance with the scheme of selection prescribed by the Government in consultation with the Commission. The Commission may hold such test or interview and undertake scrutiny of publications and other documents, as may be considered necessary. (d) The Commission shall furnish the Government a list of candidates recommended by it in order of preference; found suitable for direct recruitment. The number of candidates in such a list may be approximately double the number of vacancies. The Commission may hold such test or interview and undertake scrutiny of publications and other documents, as may be considered necessary. (d) The Commission shall furnish the Government a list of candidates recommended by it in order of preference; found suitable for direct recruitment. The number of candidates in such a list may be approximately double the number of vacancies. (e) The Commission shall simultaneously publish the list in the Assam Gazette and at such other place the Commission may consider proper. (2) The list mentioned in Clauses (d) and (e) of Sub-rule (1) of this rule shall remain valid for 12 calender months from the date of recommendations. (3) In the event of the Commission being unable to recommend sufficient number of candidates to fill up the vacancies in a year, it shall, in consultation with the Appointing Authority, repeat the procedure as mentioned herein before under Sub-rule (1) of this rule, for recommending a subsequent list in the year: Provided that the Appointing Authority shall not make appointment of any candidate from the subsequent select list until all the candidates of the earlier list of the same year, eligible for appointment, have been offered the appointment. 7. .... .... 11. Recruitment by promotion as Agricultural Extension Officer and Junior Subject Matter Specialist- Appointment by promotion in the cadres of Agricultural Extension Officer and Junior Subject Matter Specialist shall be made in the manner provided hereinafter; (1) The Appointing Authority shall publish in the Assam Gazette annually the number of vacancies in the cadres, which have occurred or are likely to occur in the year. (2) Subject to suitability as may be decided by the Board and by the Appointing Authority in consultation with the Commission and Officer belonging to the Corresponding lower cadre of the Subordinate Agricultural Service (Assistant Agricultural Inspector and the equivalent posts) and possessing the qualifications as set forth herein below shall be promoted only to the cadres of Agricultural Extension Officer and Junior Subject Matter Specialist in the manner provided in Rules 13 and 14: Provided that non-matriculates who are already promoted upto the date of this notification to various categories of posts shall not be eligible for any further promotion in the services. (3) 25 percent of the strength of the cadre of Agricultural Extension officer and Junior Subject Matter Specialist shall, be filled by promotion, subject to availability of suitable candidates, provided that any shortfall of this reservation due to non-availability of adequate number of suitable candidates in a particular year or years shall be carried forward to the subsequent year(s). (4) A member of the cadre of Assistant Agricultural Inspector an equivalent posts in the Subordinate Agricultural Service shall be eligible for promotion subject to the following condition (a) He has passed at least the matriculation examination or an equivalent examination. (b) He has rendered service as an Assistant Agricultural Inspector or in an equivalent post for a minimum period of 8 years on the first January of the year of promoted; and (c) He has successfully undergone the training and passed departmental examination, as may be prescribed for the purpose. 12. Recruitment by promotion as Sub Divisional Agricultural Officer and to Class-I posts - (1) Vacancies in the cadres of Additional Director, Joint Director, Deputy Director, Subject Matter Specialist and Subdivisional Agricultural Officer to the extent as specified un Sub-rules (2) and (3) of Rules 5 shall be filled by promotion in the manner prescribed herein below: provided that the Government may for good and sufficient reasons fill any of the posts for spalised investigation, design and research work temporarily or on tenure by transfer or deputation form outside the service, if it is satisfied that there s no suitable Officer in the service available filling the vacancy. (2) In case of specialisation of a member of the service posted in connection with the specialized subject, shall be retained in the same specialized work, on his promotion in the normal course by creation of a higher post in the cadre to which he is so promoted keeping the lower post in abeyance, if the Government considers that such an Officer cannot be withdrawn from the specialized work due to non-availability of any other Officer of the lower cadre in the service to perform the specialized work. (3) The Government may for good and sufficient reasons fill any of the posts in the Service by-inter changing officers engaged to teaching or in research side of Agriculture University with members of the service. (3) The Government may for good and sufficient reasons fill any of the posts in the Service by-inter changing officers engaged to teaching or in research side of Agriculture University with members of the service. (4) Subject to suitability as may be decided by the board and by the Appointing Authority, as set forth in Rule 13 and also subject to possessing qualification and experience as prescribed hereinafter an officer shall be eligible for promotion from one cadre to another of the service in the manner provided below: (i) Form joint Director to Additional Director (ii) From Deputy Director to Joint Director. (iii) From Subject Matter specialist to Deputy Director. (iv) From Sub-divisional Agricultural Officer to Subject Matter Specialist. (v) From Agricultural Extension Officer and Junior Subject Matter Specialist to Sub-divisional Agricultural Officer. .... .... (e) For promotion to the cadre of Sub-divisional Agricultural Officer an officer must have at least a degree in Agricultural Science or M.Sc. (Agriculture Bot) and must have rendered service for a minimum period of 5 years in the corresponding lower cadre of the service on the first January of the year of promotion. Provided the above mentioned qualification shall be relaxed for officer already in service and possessing B.A. or B.Sc or B.Com degrees but this relaxation will apply to promotion to posts mentioned in Schedule III to the rules only and for that purpose the promotion in the cadre of Subject Mater Specialist will be done from the cadre of A.A.S. Class-II. 13.(1) General procedure or promotion- Before the end of each year the Government shall make an assessment of the likely number of vacancies to be filled up by promotion in the next year in each cadre. (2) The appointing authority shall then furnish to the Selection Board the following documents and information with regard to as many officers in order of seniority as 4 times the number of vacancies, as assessed under Sub-rule (1). (a) Information about the number of vacancies; (b) List of officers in order of seniority, eligible for promotion (separate lists for promotion to different cadres shall be furnished) indicating the cadre for which the case of promotion is to be considered: (c) character rolls and personal files of the officers listed; (d) details about reservation in case of promotion of the Service and about carry forward and vacancies as provided under Sub-rule (3) of Rule 11; and. (e) any other documents and information as may be considered necessary by the Appointing Authority or required by the Board. (3) The Appointing Authority shall simultaneously request the Board to recommend within one month a list of officers, found suitable for promotion in order of reference in respect of promotion to each of the cadres in which recruitment is to be made by promotion. (4) The selection shall be made on the basis of merit with due regard to seniority in case of promotions stated herein before under sub-rule (4) of Rule 12 enumerated under (v) and under Rule 11. All other selections shall be made on the basis of merit only, for promotions enumerated under (i), (ii), (iii) and (iv) of Sub-rule (4) of Rule 12. (5) The Board, after examination of the documents and information furnished by the Appointing Authority shall recommend to the Appointing Authority a list of officer about double the provable number of vacancies in order to preference, found suitable for promotion. In the case the Board does not consider an officer suitable for promotion according to seniority, it shall record the reasons there of in writing and forward these reasons to the Appointing Authority together with the list. (6) The Appointing Authority shall consider the list prepared by the Board along with character rolls and personal files of the employees and approve the list unless it considers any change necessary. If the Appointing Authority considers it necessary to make any change in the list received from the Board he shall inform the Board of the changes proposed and after taking into account the comments, if any the Appointing Authority may approve the list finally with such modification, if any, as may in its opinion be just and proper. (7) The inclusion of a candidate's name in a select list shall confer no right to promotion unless, the Appointing Authority is satisfied after such enquiry as may be considered necessary that a candidate is suitable for promotion. (8) The select lists shall remain valid for 12 months from the date of approval by the Appointing Authority. (9) The promotions shall be in accordance with the lists finally approved by the Appointing Authority or by the Commission under Rule 14, as the case may be. 14. .... .... 18. (8) The select lists shall remain valid for 12 months from the date of approval by the Appointing Authority. (9) The promotions shall be in accordance with the lists finally approved by the Appointing Authority or by the Commission under Rule 14, as the case may be. 14. .... .... 18. Appointment.- (1) Subject to the provisions of Rule 17 and sub-(2) of this rule appointment under Rule 6 shall be made by the Governor in accordance with order of preference determined in the list referred to in Clause (d) of Sub-rule (1) of Rule 6. (2) The inclusion of a candidate's name in the list mentioned in Clause (d) of Sub-rule (1) of Rule 6 shall confer no right to appointment unless the Appointing Authority is satisfied after such enquiry as prescribed by the Government from time to time and also, as may be considered necessary, that a candidate is suitable in all respects for appointment to the Service. 19. .... .... 22. Seniority: (1) The seniority of a member in a cadre appointed by direct recruitment or by promotion shall be determined according to the order of merit in the respective list finally approved by the Appointing Authority under Sub-rule (6) of Rule 13 and Sub-rule (3) of Rule 14 if he joins the appointment within 15 days from the date of receipt of the order or within the extended period as mentioned in Rule 19. (2) If a member fails to join the appointment within the initial 15 days of receipt of the order or within the extended period, as mentioned in Rule 19, but joins later, his seniority shall be determined in accordance with the date of joining. (3) A member appointed by promotion against a vacancy occurring in a year shall be senior to a member appointed by direct recruitment of that year. 23. .... .... 28. Relaxations: Where the Government is satisfied that the operation of any of these rules causes under hardship in any particular case, it may, dispense with or relax the requirement of that rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and suitable manner. Provided that the case of any person shall not be dealt with in any manner less favourable to him than that provided in this rules. 9. I have heard Mr. Provided that the case of any person shall not be dealt with in any manner less favourable to him than that provided in this rules. 9. I have heard Mr. R.P. Sarma, learned Counsel for the Petitioners in WP(C) No. 1043/2003 and the learned State Counsel, Mr. B.J. Talukdar in both the writ petitions. I have also heard Mr. K.N. Choudhury, learned Sr. Counsel, assisted by Mr. A. Choudhury, learned Advocate for the private Respondents in WP(C) No. 1043/2003 who are the Petitioners in WP(C) No. 2195/2003. Mr. A.K. Phukan, learned Advocate General, Assam, assisted by Mr. B.J. Talukdar, learned Jr. Government Advocate was also heard on the challenge made to Rule 12(4)(v) of the aforesaid Rules. 10. Mr. Sarma, learned Counsel for the Petitioners in WP(C) No. 1043/2003 referring to the above quoted provisions of the Rules strenuously argued that the official Respondents having accepted the posts of JSMS to be a post of higher rank and status than AEO, the rule making authority could not have included JSMS and AEO in Class-II of the service under Rule 3(1)(c) of the Rules. He submitted that having regard to the clear and unambiguous legislative intent to maintain two distinct cadres viz. JSMS and AEO placing the cadre of JSMS in the high pedestal, an incongruous situation has arisen in view of inconsistency in the Rules, more particularly Rule 12(4)(v) of the Rules requiring the same to be declared as ultravires giving the true meaning to the legislative intent by way of harmonious construction. Referring to FR9 (25) of the FR SR conveying the meaning of "special pay", Mr. Sarma, submitted that there is no escape from the fact that the cadre of JSMS is higher in rank and status. He further contended that the decision to upgrade 100 posts of JSMS to that of SDAO itself suggests that the cadre of JSMS is higher than the cadre of AEO. He also placed reliance on certain documents to bring home his point of argument. He placed reliance on the following decisions: (1992) Supp. 1 SCC 584N. Suresh Nathan and Ann v. Union of India and Ors. (1993) Supp. 1 SCC 731 Nirothi Lal Gupta and Ors. v. Union of India and Ors. (1991) Supp. 1 SCC 600 Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors. He placed reliance on the following decisions: (1992) Supp. 1 SCC 584N. Suresh Nathan and Ann v. Union of India and Ors. (1993) Supp. 1 SCC 731 Nirothi Lal Gupta and Ors. v. Union of India and Ors. (1991) Supp. 1 SCC 600 Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors. 1992 4 SCC 736 A.A. Haja Muniuddin v. Indian Railways : (1996) 2 SCC 498 Pannalal Bansilal Pitti and Ors. v. State of A.P. and Anr. 11. On the other hand Mr. A.K. Phukan, learned Advocate General, Assam assisted by Mr. B.J. Talukdar, learned Jr. Government Advocate, defended the Rules and submitted that the ambiguity sought to be introduced by the Petitioners in the Rules for the purpose of confining the scope of promotion only to the JSMS cannot be permitted, more particularly when the plain reading of the rules do not suggest any such ambiguity. He submitted that even if the cadres of AEO and JSMS are held to constitute two distinct and separate cadres, there is no bar in providing promotional scope to the officers of both the cadres. Emphasising the need to adopt the normal rule of interpretation i.e. the literal interpretation of statute, he submitted that there being no explicit ambiguity on plain reading of the provisions of the Rules, there is no question of any interference with Rule 12(4)(v) of the Rules or reading down the provisions thereof. 12. Mr. K.N. Choudhury, learned Sr. Counsel, appearing for the private Respondents in WP(C) No. 1043/2003 who are the Petitioners in WP(C) No. 2195/2003, while adopting the arguments advanced by the learned Advocate General, Assam also referred to the various provisions of the Rules and submitted that the special pay given to the JSMS does not constitute any advancement in the promotional channel and thus the said JSMS are not entitled to claim any higher rank and status than the AEOs. Placing reliance on the decisions of the Apex Court as reported in : (1994) 5 SCC 392 Taresm Singh and Anr. v. State of Punjab and Ors. andAIR 2000 SC 2043 Bihar State Subordinate Industries Field officers 'Association v. Kapildeo Prasad Singh and Ors. he submitted that grouping of different posts/cadres in feeder categories for promotion to higher posts is not irrational. v. State of Punjab and Ors. andAIR 2000 SC 2043 Bihar State Subordinate Industries Field officers 'Association v. Kapildeo Prasad Singh and Ors. he submitted that grouping of different posts/cadres in feeder categories for promotion to higher posts is not irrational. He submitted that the incumbents in both the cadres i.e. AEO and JSMS being given the same scale of pay, they are in a composite cadre with the provisions of interchanging with each other and if the scope of promotion is provided to the incumbent in both the cadres, the Petitioners in WP(C) No. 1043/2003 cannot have any objection. 13. While entertaining the writ petition in WP(C) No. 1043/2003 filed by the JSMS by order dated 11.2.2003, an interim direction was issued not to fill up any post by promotion. Such an interim order was passed on the basis of the apprehension expressed by the Petitioners about the contemplation of the official Respondents to fill up the aforesaid 100 upgraded posts alongwith 63 existing vacancies in the promotional cadre of SDAO applying the ratio of 1X4 as contemplated under 13(2) of the Rules which naturally would include the officers in the cadre of AEO within the zone of consideration, the number of incumbents in the cadre of JSMS being only 279 (163X4=652). On that basis the total number of officers in the cadre of AEO within the zone of consideration came to be 373. 14. The above interim order came up for further consideration and by order dated 24.6.2003, it was provided by way of modification of the said interim order that the Government would be at liberty to fill up the remaining posts except the 100 posts which were upgraded. The said interim order was further considered and by order dated 5.8.2003, the entire process of promotion to the rank of SDAO was directed to be kept in abeyance. 15. The official Respondents as well as the private Respondents in WP(C) No. 1043/2003 have filed individual affidavits highlighting the aforementioned points of defence on the basis of which their respective counsel advanced arguments. In paragraph 5 of the affidavit filed by the official Respondents, it has been stated that the post of JSMS is filled up by way of transferring the officers in the cadre of AEO on seniority basis, alongwith the further statement that, "granting of special pay of SMS (Jr.) is a promotional post". In paragraph 5 of the affidavit filed by the official Respondents, it has been stated that the post of JSMS is filled up by way of transferring the officers in the cadre of AEO on seniority basis, alongwith the further statement that, "granting of special pay of SMS (Jr.) is a promotional post". In the same very paragraph, the Respondents have also stated that both the posts carry equal scale of pay and the officers belonging to both the cadres are eligible for promotion to the next higher rank of SDAO as per Rule 12(4)(v) of the aforesaid Rules. Further stand in the affidavit is that transfer of AEOs as JSMS cannot be construed to be a promotion and that as per the provisions of the aforesaid Rule 12(4)(v), officers of both the categories are eligible for promotion as SDAO. Thus the official Respondents do not see any infirmity in the aforesaid rules. 16. Same is the stand of the private Respondents in their affidavit. According to them the posts of JSMS and AEO are of equal rank and status. They also see no ambiguity in Rule 12(4)(v) of the rules. Further stand in their affidavit is that the duties involved in both the posts are approximately the same. Referring to the Annexure-G, job Chart annexed to the writ petition in WP(C) No. 1043/2003 to bring the distinction between the two categories of posts, it is their stand that although the AEO's are the initiating officer/assisting officer; the AEOs never work under the instructions and supervisions of the JSMS. While admitting that the duties and responsibilities of the officials holding the post of JSMS and AEO cadres are different, according to them, the same cannot be said to be inferior and lesser than that of JSMS. 17. The Petitioners by way of filing an affidavit-in-reply controverted the contentions raised in the affidavit-in-oppositions and reiterated the stand in the writ petition. Referring to the practice in vogue in which it is the senior AEOs who are posted as JSMS and not vice-versa, the Petitioners have further pointed out that till 1972, the post of JSMS was in the higher scale of pay than that of AEO. They have also pointed out that as per the provisions of Rule 3(1)(c) of the Rules, both the cadres form distinct and separate cadres. They have also pointed out that as per the provisions of Rule 3(1)(c) of the Rules, both the cadres form distinct and separate cadres. Drawing the analogy from the practice being followed in making promotion to the cadre of Deputy Director from amongst the officers belonging to the cadre of Subject Matter Specialist only which is in Class-I Service along with another cadre of SDAO although as per the provisions of Rule 12(5)(c) of the aforesaid Rules, the officers belonging to both the cadres i.e. SMS and SDAO are eligible for such promotion, it is the case of the Petitioners that the same very practice and procedure is required to be followed for the purpose of filling up the aforesaid upgraded 100 posts of SDAO and 63 existing vacancies of SDAO. According to them, the expression used in Rule 12(5)(c) providing eligibility criterias for promotion as SDAO "must have rendered service for a minimum period of 5 years in the corresponding lower cadre of the Service on the first January of the year of promotion", clearly indicates that it is the category of JSMS who alone are entitled to be considered for promotion as SDAO. 18. Thus in a nutshell, it is the case of the Petitioners that an AEO cannot be treated at par with that of JSMS and that an AEO becomes eligible for promotion as SDAO only when he is posted as JSMS and renders service for a minimum period of 5 years in that cadre. 19. Amidst the aforesaid submissions and the stands in the pleadings, it will be appropriate to refer to the records produced by the learned State Counsel, more particularly, when the question of upgradation of 100 posts of JSMS as notified by Annexure-D notification dated 22.1.2002 has come to the forefront. By the said notification apart from upgrading 100 posts of JSMS, the posts, which stood upgraded were also identified and notified as per the Annexure annexed to the notification. With such upgradation of 100 posts of JSMS, correspondingly 100 posts of JSMS stood abolished from the date of entertainment of the upgraded posts. By the said notification apart from upgrading 100 posts of JSMS, the posts, which stood upgraded were also identified and notified as per the Annexure annexed to the notification. With such upgradation of 100 posts of JSMS, correspondingly 100 posts of JSMS stood abolished from the date of entertainment of the upgraded posts. Be it stated here that a question may also arise as to whether the clubbing of the upgraded 100 posts of JSMS to that of SDAO and the 63 existing vacancies which had arisen in the normal course in the cadre of SDAO for the purpose of promotion was justified or not. 20. The records (File No. AGA-248/2000) revealed that the proposal for upgradation of 100 posts of JSMS to the rank of SDAO with the identification of the same was first mooted by the Commissioner and Secretary of the Department by his note dated 20.9.2000. By the said note while indicating the financial implication involved in upgrading 100 posts of JSMS to the rank of SDAO to be Rs. 4.80 lakh only, such upgradation was justified with the reasons assigned in the note. As per the reasons assigned, the post of JSMS underwent a change with recommendations of each Pay Commission. While prior to 1973 there was no difference in the scale of pay between JSMS and SDAO, subsequently, the status of JSMS was classified to be slightly higher than AEO by granting special pay. As per the said note, the JSMS is a rank between the AEO and SDAO. The note further reads that as a matter of fact, the JSMS has been holding charge of the posts of SDAO in quite a few sub-division. Noticing the massive stagnation in the rank of JSMS resulting in many of them still continuing as JSMS, even after putting more than 22 years of service and the demoralizing effect in the rank and file of JSMS, the proposal was submitted for upgradation of the 100 notified posts of JSMS to the rank of SDAO. The note also referred to the abolition of the cadre of JSMS in the Department of Animal Husbandry and Veterinary with the upgradation of the posts to the corresponding Sub-divisional Veterinary Officer. The note also referred to the approval of the Minister of the Department 21. The note also referred to the abolition of the cadre of JSMS in the Department of Animal Husbandry and Veterinary with the upgradation of the posts to the corresponding Sub-divisional Veterinary Officer. The note also referred to the approval of the Minister of the Department 21. After the aforesaid proposal was first mooted, by the Commissioner and Secretary of the Department, the matter proceeded further and the approval of the State Level Empowered Committee (SLEC), Personnel Department and Finance Department was obtained on 22.3.2001, 31.3.2001 and 5.7.2001 respectively. In between, many queries were met by the Department, which, included consideration of the controversial rule i.e. Rule 12(4)(v) of the Rules. Clarifications were also issued to the effect that the entry in service is made in the level of AEO and the post of JSMS is filled up by transferring seniormost AEOs and that it is the JSMS who are promoted to the next higher rank of SDAO. Reference was also made to similar upgradation of the posts and incumbents affected in the Veterinary Department, which was once integrated with the Agriculture Department. The Finance Department while concurring the proposal of upgradation of 100 posts of JSMS observed that the department shall issue order upgrading the posts simultaneously with the order of posting of the officers on upgradation. 22. After the aforesaid approval by the different authorities, a further note was put up on 10.7.2001 highlighting stagnations being suffered by the officers and as to how in the event of providing the benefit of upgradation to 100 incumbents in the cadre JSMS would cover 7, 41, 51 and 1 JSMS belonging to 1972, 1976, 1978, 1981 batch respectively. Making a comparison with the Government decision in respect of the Veterinary Department in which the whole lot of JSMS was upgraded to the rank of Sub-divisional Veterinary Officer (SDVO), which is equivalent to SDAO, a further note was put up on 27.7.2001. As per the said note the list of incumbents of JSMS upgraded as SDVO in the Veterinary Department was sent to the Accountant General and as per direction of the Finance Department the pay of the officers in the upgraded posts had been regulated under the provision of FR 22(1)(a)(2). It was also pointed out that the officers of the Veterinary Department had been provided with only fixation benefit but not the promotional benefit. It was also pointed out that the officers of the Veterinary Department had been provided with only fixation benefit but not the promotional benefit. Referring to the discussions with the Law Department etc. the note also referred to the initial proposal and the intention thereof to undo the yearlong stagnation of the officers i.e. the JSMS, a suggestion was made to upgrade the incumbents holding the aforesaid 100 posts of JSMS in order of seniority to hold the upgraded posts subject to the condition that their pay in the upgraded posts shall be regulated under FR 22(1)(a)(2) at par with the officers of the Veterinary Department. The note also suggested that in the subsequent occasions, when vacancy would occur against those 100 upgraded posts, then those vacancies would be filled up by promotion under normal rules. 23. After the aforesaid developments, the Secretary to the Department put up a note before the Principal Secretary on 27.7.2001 posing the question as to whether the existing JSMS against the aforesaid 100 upgraded posts would be promoted in order of seniority, if otherwise found suitable, or they should be so promoted by following the service rules. It was also pointed out that stepping up of the seniormost officers would be based on the fact that upgradation is mainly intended to remove stagnation and as a source of incentive to the officers suffering stagnation since long. It was also pointed out that in such an event the policy of reservation, perhaps would not be applicable. 24. When the matter poised thus, amidst the doubt regarding applicability of reservation in the matter of upgradation, it was pointed out that approval of the SLEC had since been obtained for filling up 63 promotion vacancies in the cadre of SDAO. Clubbing the said 63 vacancies with that 100 upgraded vacancies, a proposal was mooted by note dated 5.6.2002 for promotion of JSMS to the aforesaid 163 posts of SDAO. It was at that stage, doubt was raised about the applicability of Rule 12(4)(v) of the aforesaid Rules in view of the provisions of Rule 3 of the Rules providing two separate cadres of JSMS and AEO. It was at that stage, doubt was raised about the applicability of Rule 12(4)(v) of the aforesaid Rules in view of the provisions of Rule 3 of the Rules providing two separate cadres of JSMS and AEO. Eventually, pointing out to the zone of consideration applying the ratio of 1:4 and consequential consideration of the incumbents in the cadre of AEO and possible reversion of some officers from the cadre of JSMS to the cadre AEO, a note was put up on 6.7.2002 for clarification. The Personnel Department opined that the officers of both the categories would be eligible for consideration against the 100 upgraded posts. Such an opinion was given solely on the basis that both the posts carry same scale of pay. The matter was processed on that basis and the file revealed that all the 163 posts applying the ratio of 1:4 were considered for promotion from amongst the officers of both the categories of JSMS and AEO who come within the zone of consideration. It is on record that all the JSMS are admittedly senior to the AEOs. They enblock come within the zone of consideration, while the balance zone is to be filled up by the AEOs as per their seniority positions. It is also on record that for the purpose of upgradation and promotion of JSMS, a seniority list was prepared followed by another seniority list of AEOs. 25. The records also contain a letter dated 20.4.2002 issued by the Government of Assam in the Agriculture Department to the Director of Agriculture which reads as follows: Government of Assam Agriculture Department No. AGA. 248/2000/18 Dated Dispur, the 20th April, 2002 From: Shri B.B. Brahma, Under Secy. To the Govt. of Assam, Agriculture Department, Dispur. To: The Director of Agriculture, Assam Khanapara, Guwahati-22. Sub: Submission of information about 100 upgraded post. Ref: This Department's letter No. AGA. 248/2000/15 dtd. 22/1/2002. Sir, I am directed to refer to this Department's letter on the subject cited above and to request you kindly to furnish the following information immediately for necessary action: 1) The exact places of the upgraded post with district. 2) The new designation of the upgraded post of necessary for identification of the upgraded post. 3) The name of persons of present holding the said upgraded post. 2) The new designation of the upgraded post of necessary for identification of the upgraded post. 3) The name of persons of present holding the said upgraded post. The above information are necessary to avoid clumsy and clarification since equal number of post with cadre of S.M.S.(Jr.) will automatically stand abolished from the date of filling up of the upgraded post by way on promotion. Yours faithfully Sd/- Under Secy. To the Govt. of Assam Agriculture Department. 26. The Director of Agriculture by his letter dated 22.5.2002 as contained in the records forwarded the necessary informations for favour of necessary action to upgrade the post by way of promotion. The list forwarded by the said letter contained the names of the incumbents (JSMS) and the posts being held by them. It will be pertinent to mention here that by Annexure-C notification dated 25.4.2000 annexed to the writ petition, the post in the cadre of JSMS were identified carrying different nomenclatures. Thus the proposal mooted was for upgradation of the aforesaid 100 posts of JSMS with different nomenclatures and the matter proceeded on that basis only. It was on that basis only, the necessary approval was accorded by the SLEC, Personnel and Finance Department as indicated above. 27. The records have also revealed that way back in 1990, the Director of Agriculture, Assam by his letter No. Agri/Estt/3058/88-89/42 dated 10.10.90 highlighted the stagnation being faced by the JSMS in view of negligible number of promotional posts in the cadre of SDAO. Pointing out to the historical background of the service as in the note dated 20.9.2000 initiated by the Commissioner and Secretary in the Department about which mention have been made above, by the said letter, it was pointed out that till the recent past the pay scale of JSMS and SDAO was the same. It was also pointed out in the letter as to how the Graduates/Post Graduates in Agriculture join the initial entry Grade of AEO and after rendering 10 to 12 years of service in that cadre, they are appointed in the cadre of JSMS and remain in that cadre also for a considerable length of time and yet they do not earn promotion to the next higher Grade of SDAO giving rise to frustration and demoralization. The said letter suggested merger of JSMS with that of SDAO indicating negligible additional financial involvement. 28. The said letter suggested merger of JSMS with that of SDAO indicating negligible additional financial involvement. 28. The records have also revealed that it was in 1977, the Government of Assam in the Finance Department issued office memorandum dated 31.8.77 further revising the pay scale of the post under Agriculture and Veterinary Department at the entry point in the gazetted rank. Thus, by the said notification the officers in the cadre of AEO for the first time got the enhanced scale which incidentally was identical to the scale enjoyed by the JSMS, who otherwise were enjoying higher pay scale than that of AEO. By the said notification, it was also recognized that the cadre of AEO constitutes the entry point in the gazetted rank. Thus it is on record that the pay scale of AEO was not revised with the motive of bringing parity with that of JSMS considering their status, duties and responsibilities etc. or by way of merger of cadres equating both the cadres to be at par, but such revision was, as revealed by the Government in the Department of Agriculture by their letter No. AGA. 46/2003/163 addressed to Mr. B.J. Talukdar, learned Jr. Govt. Advocate, Assam was pursuant to the said office memorandum dated 3.8.77. The office memorandum revising the pay scale of the AEO, which incidentally became at par with that of JSMS was to maintain parity amongst different technical services and not with JSMS. 29. The aforesaid letter dated 14.6.2004 was issued as instruction in the matter as per which the pay scale of JSMS prior to issuance of the aforesaid office memorandum dated 31.8.77 was higher than the AEOs. As against the pay scale of the AEOs Rs. 400/- to 900/-, the pay scale of JSMS was Rs. 500/- to 1225/-. As per the said letter, prior to 1977, the post of SDAO was promotional post from JSMS. Likewise the post of JSMS was promotional post from AEO. With the issuance of the said office memorandum dated 31.8.77 revising the pay scale of AEO as Rs. 500/- to 1225/- which was also the pay scale of JSMS, the Government in the Department of Agriculture provided avenue of promotion to both the categories to the cadre of SDAO. Likewise the post of JSMS was promotional post from AEO. With the issuance of the said office memorandum dated 31.8.77 revising the pay scale of AEO as Rs. 500/- to 1225/- which was also the pay scale of JSMS, the Government in the Department of Agriculture provided avenue of promotion to both the categories to the cadre of SDAO. Such a provision was made solely on the basis of identical pay scale for both the categories, which came into being by virtue of the said OM. 30. With the above development, the JSMS demanded higher scale of pay which was not agreed to by the Finance Department and instead suggested for granting special pay of Rs. 75/-. In the said letter dated 14.6.2004, the Government has admitted that such special pay of Rs. 75/- was provided to JSMS considering the fact that originally the scale of pay of SMS (Jr.), was higher than that of AEOs and also considering seniority and a bit higher responsibility. In the said letter it has also been pointed out that on earlier occasions i.e. 1988, 1990 and 1996 when the question of filling up the promotional post of SDAO came up for consideration, having regard to the number of vacancies for those years i.e. 29, 14 and 48 and applying the ratio of 1:4, there was no difficulty in considering the case of the JSMS only since the said ratio did not allow enlargement of the zone of consideration upto the level of AEO. However, in the present situation in which altogether 163 posts are involved, applying the said ratio, the officers of the cadre of AEO also come within the zone of consideration. The rift between the Petitioners and the private Respondents backed by the official Respondents is in respect of inclusion of the officers in the cadre of AEO within the zone of consideration in filling up the aforesaid 163 promotional posts of SDAO. 31. In the aforesaid backdrop of the case, another question arises for determination is, whether the 100 upgraded posts should also be earmarked for normal channel of promotion involving the normal procedure for promotion. In whatever manner, the question is answered, another question will also arise for consideration as to whether there could have been clubbing of vacancies of both the categories i.e. the 100 upgraded posts and the 63 normal promotional posts. In whatever manner, the question is answered, another question will also arise for consideration as to whether there could have been clubbing of vacancies of both the categories i.e. the 100 upgraded posts and the 63 normal promotional posts. The question will also arise as to when those normal vacancies arose in the Department. These questions are intrinsically related to the legal formulation which is also in conformity with Rule 13 of the aforesaid Rules that on failure to conduct yearwise selection pertaining to the vacancies occurred in a particular year, the selection is required to be conducted forming yearwise panel to eliminate the chances of deprivation of senior and eligible persons, consideration in whose respect would have been different, had there been timely action towards conducting the selection. 32. I feel it appropriate to answer the above questions first before adverting to the challenge made to Rule 12(4)(v) of the aforesaid Rules. From the above discussion on records it will be seen that the original idea and proposal mooted for upgradation of 100 posts of JSMS to that of SDAO was to remove stagnation in the rank and file of the cadre of JSMS. In this connection the note dated 27.7.2001 in the file about which mention has been made above is noteworthy which reads that Now the question arises as to posting of the officers on the upgraded Sub-divisional Agriculture Officers post from the existing officers of the rank of Jr. SMS. Whether by way of promotion or by stepping up the seniormost officers in order of seniority, if otherwise found suitable. The process of promotion will be as provision of the existing service Rule taking into consideration the reservation policy. On the other hand, stepping up of the seniormost officers is based on the fact that upgradation is mainly intended to remove stagnation and a source of incentive to the officers who are suffering since long. In this case, reservation policy is perhaps not applicable as this will be neither recruitment nor promotion (emphasis added) 33. The whole idea behind the proposal for upgradation of 100 posts of JSMS to that of SDAO was to remove stagnation and frustration among the rank and file of the officers in the cadre of JSMS. The matter was processed on that basis. Even the concurrence of the SLEC, Personnel and Finance Department was also obtained. The whole idea behind the proposal for upgradation of 100 posts of JSMS to that of SDAO was to remove stagnation and frustration among the rank and file of the officers in the cadre of JSMS. The matter was processed on that basis. Even the concurrence of the SLEC, Personnel and Finance Department was also obtained. The posts with the incumbents in the cadre of JSMS were also identified. The notification relating to upgradation of the posts was also issued. The Finance Department in its note dated 5.7.2001 advised for upgradation of the posts simultaneously with the order of posting of the officers on upgradation. However, no such order was issued and the entire matter once again tested in the touchtone of the principles involved in the matter of promotion and the procedure thereof. In the process 63 normal existing promotional vacancies were also clubbed alongwith those 100 upgraded posts, which has now given rise to the kind of situation in which the officers of both the categories have initiated the present writ proceedings. 34. The policy of upgradation of 100 posts with simultaneous abolition of 100 posts of JSMS was adopted and mooted primarily for the benefit of the senior officers in the cadre of JSMS considering the stagnation and frustration in absence of any promotion for years together. In this connection the revelations made and deduced from the records an enumerated in paragraph 21 above may be referred to. It was in that kind of a situation the matter was activated and processed. The policy and the proposal towards upgradation was somewhat akin to Assured Career Progression (ACP) so well known in the Central Government Services. The ACP scheme envisages merely placement in the higher pay scale/grant of financial benefits (through financial upgradation) only to the Government servant concerned on personal basis and shall, therefore, neither amount to functional/regular promotion nor would require creation of new post for the purpose. Such a scheme as also the proposal and approval accorded for upgradation of 100 JSMS contemplates merely placement on personal basis in the higher pay scale/grant of financial benefits only and shall not amount to actual/functional promotion of the employees concerned. Since orders regarding reservation in promotion are applicable only in the case of regular promotion, reservation orders/roster shall not apply to such a scheme/policy which, however, shall extend uniformly to all eligible SC/ST employees also. 35. Since orders regarding reservation in promotion are applicable only in the case of regular promotion, reservation orders/roster shall not apply to such a scheme/policy which, however, shall extend uniformly to all eligible SC/ST employees also. 35. Normally, it is incorrect to have a feeder grade and a promotional grade in the same scale of pay. In such cases, appropriate course of action is to review the cadre structure. In the instant case, the distinctive feature between the two cadres of JSMS and AEO is the special pay of Rs. 75/- being granted to the JSMS on conferment of status and responsibility as such. Promotion is, of course, appointment to a different post carrying a higher scale of pay in the service. If to better the conditions of service of the incumbents in post in the same category, the scale of pay of all the posts in the category is raised, the incumbents would naturally get the higher scale of pay. But in such a case it may not be proper to characterize the event as promotion to higher post though all concerned obtains a benefit of a higher scale of pay. In other words, if the upgradation relates to all the posts in a category naturally there is no change in calling it a promotion of all the persons in that category. That is because there is no question of appointment from one post to another. Parties continue to hold same post but get a higher scale of pay. It may be that as in the instant case, it is not all the posts in a particular category that are so upgraded, but only a part of it. Normally the benefit of such upgradation would go to the seniors in the category. They would automatically get a higher scale of pay. That is because though their post continue in the same category, a higher scale of pay is fixed for those posts. It is appropriate then to say that the seniors have been nominated to the higher grade, which has been so created by upgradation. There is no question of appointment form one post to another. They continue to hold the same post, but because of seniority in the same post they are given a higher scale of pay. It is appropriate then to say that the seniors have been nominated to the higher grade, which has been so created by upgradation. There is no question of appointment form one post to another. They continue to hold the same post, but because of seniority in the same post they are given a higher scale of pay. When a person is nominated to the higher scale of pay from time to time based on seniority, it may perhaps loosely be termed as a promotion. However, such kind of fitment cannot be envisaged as promotion as contemplated under the Rules. (Refer the full Bench decision of the Kerela High Court in the case of N.G. Prabhu and Anr. v. Chief Justice and Anr. as reported in 1973 LIC 399. 36. In the case of Joint Commissioner of Police v. Sube Singh as reported in 2003 (1) SLJ Delhi 399, a Division Bench of Delhi High Court did not agree with the Central Government that the effect of upgradation of the posts of Additional Commissioner to Joint Commissioner of Police would amount to creation of posts. The High Court observed that there was no alteration of the total cadre strength and the over all cadre strength remained same. 37. The upgradation of 100 posts of JSMS for fitment of the incumbents as SD AO, really speaking is the restructuring of the posts. No additional posts were created. 100 posts out of existing total were placed in higher grade to provide avenues to the JSMS who were stagnating. The placement of these posts cannot be termed as creation of additional posts. There were definite number of posts and the total remained the same. The only difference is that some of these are in a higher grade. It was a deliberate exercise of redistribution with the primary object of betterment of chance of promotion and removal of stagnation. Upgradation of cadre by redistribution of posts will loose its primary objective if it is taken on generation of additional posts in the upgraded posts. There has to be rationality in the implementation of formulation and implementations of such a policy decision. The criterion has to be formulated keeping the aims and safeguards in view. The keynote thought behind the exercise should not be lost sight of. It is to improve prospect, remove stagnation and provide avenues. There has to be rationality in the implementation of formulation and implementations of such a policy decision. The criterion has to be formulated keeping the aims and safeguards in view. The keynote thought behind the exercise should not be lost sight of. It is to improve prospect, remove stagnation and provide avenues. The very purpose is defeated if the end result is anything else. 38. For the foregoing' reasons, the facts involved in this case and the revelation made from the records, I am constrained to hold that the upgradation of 100 posts JSMS, will not come within the purview of the procedure for promotion as envisaged under the Rules. Such upgradation of the posts alongwith the incumbents neither involves promotion nor appointment and so the reservation for SC and ST cannot be applied which is normally applicable in the case of regular promotion. Thus there is no question of reserving percentages for SCs and STs in so far as these 100 upgraded posts are concerned. 39. The aforesaid finding relating to the 100 upgraded posts of JSMS leads us to the second question as to the manner and method in which the 63 promotional vacancies are to be filled up. This question shall be dealt with even without answering the challenge made to Rule 12(4)(v) of the Rules. The records do not indicate as to whether the 63 promotional vacancies occurred enblock or are the accumulation of vacancies occurred from year to year. It is also not known as to whether those 63 vacancies, if occurred enblock, had so occurred in the same year when the proposal for upgradation of 100 posts was finally accepted. Rule 13 of the aforesaid Rules lays down the general procedure for promotion in terms of which before the end of each year, the Government is required to made an assessment of the likely number of vacancies to be filled up by promotion in the next year, which necessarily implies holding of selection for promotion every year. The select list remains valid for 12 months and the promotions are to be effected in accordance with the list finally approved by the appointing authority. The select list remains valid for 12 months and the promotions are to be effected in accordance with the list finally approved by the appointing authority. Thus, if for any reason, selections cannot be carried out in a particular year or thereafter, in respect of vacancies occurring in that year or subsequent years, the accumulated vacancies cannot be and ought not to be considered in a single selection. The best course in such a situation is to prepare yearwise panel as per the yearwise vacancies to eliminate the chances of deprivation of the eligible senior persons. In this connection the decisions of the Apex Court as reported in : (1995) 4 SCC 246 Vinod Kumar Sangal v. Union of India and Ors. and : (1997) 9 SCC 287 Union of India v. N.R. Banerjee may be referred to. 40. In both the aforementioned two cases, the Apex Court in reference to the frequency of meeting of the DPC and the life of the panel (one year) emphasized that it is essential for the appointing authorities to initiate action to fill up the existing as well as anticipated vacancies well in advance of the expiry of the previous panel. For the purpose, the DPC should be convened every year for each category of posts. If the annual panel could not be prepared for any justifiable reason, yearwise panel of all the eligible candidates within the zone of consideration for filling up the vacancies each year should be prepared and appointment made in accordance therewith. 41. In the instant case, as stated above it is not known as to whether the 63 normal promotional vacancies are the accumulated vacancies of one year or are the accumulations over the years. If the 63 vacancies have arisen over the years, then having regard to procedure to be followed in the case of promotion, the Respondents shall prepare the yearwise panel in accordance with the vacancy of that year considering the case of the officers who come within the zone of consideration in terms of the yearwise vacancy applying the ratio of 1:4. 42. I now propose to decide the last but the most important question relating to the challenge put to Rule 12(4)(v) of the Rules. 42. I now propose to decide the last but the most important question relating to the challenge put to Rule 12(4)(v) of the Rules. There is no dispute that till revising the pay scale of the AEO by OM dated 31.8.77 as noticed above, the pay scale of the JSMS was higher than the AEO. The pay scale of the AEO was revised to maintain parity between different technical services and not in reference to the category of JSMS for the reason that both the categories are equal in rank, status, duties and responsibilities. The Service Rule was framed in 1980 i.e. after three years of the aforesaid OM issued in August, 1977 granting the same pay scale as that of JSMS to the AEO. The rule making authority was simply guided by the lone factor of same pay scale of both the categories. From the discussions made above, there is no dispute that the incumbents in the category of JSMS enjoy higher status then the AEO. As against the direct entry to the cadre of AEO, an incumbent in the cadre of AEO can enter the cadre of JSMS upon rendering services and gaining experience in the cadre of AEO. Although as per the rules, direct recruitment can be made to both the categories, but there is no dispute that the practice being followed in the Department is that the entry grade into the service is only limited to the cadre of AEO. An AEO after gaining experience as such rendering number of years of service can attain the status of JSMS with definite order of posting as such, which also provides extra benefits of special pay of Rs. 75/-. 43. Tracing back the historical background of the service as revealed by the official Respondents themselves, the post of JSMS was a promotional post for the AEO. At one stage, the pay scale of JSMS and the present promotional post of SDAO carried the same pay scale. In the proposal mooted for upgradation of 100 posts, it has been recognized that the cadre of JSMS is a cadre between AEO and SDAO. In this connection the note appended to Rule 3 of the Rules also throws light. As per the said note the post of Agricultural Officer at Majuli in the scale of pay of Rs. In the proposal mooted for upgradation of 100 posts, it has been recognized that the cadre of JSMS is a cadre between AEO and SDAO. In this connection the note appended to Rule 3 of the Rules also throws light. As per the said note the post of Agricultural Officer at Majuli in the scale of pay of Rs. 500/- to 1220/- will continue as such and be treated as belonging to the cadre of JSMS in Class-II until Agricultural Subdivision is created there and the post included in the cadre of Subdivisional Agricultural Officer in Class-I. The idea underlying such a course of action is the importance attached to the post of JSMS which in the case of Majuli was even equated with SDAO. 44. All the parties to the present proceeding agreed that the AEO and JSMS constitute two distinct and separate cadres. There is also no disagreement that the officers in the cadre of JSMS are provided with special pay of Rs. 75/-. In the aforesaid letter dated 14.6.2004 issued by the Government of Assam in the Agricultural Department and addressed to the Jr. Govt. Advocate, it has been admitted that such special pay is provided to the category of JSMS in consideration of the fact that their pay scale was higher than the AEO at one point of time and also considering their seniority and a bit higher responsibility. Even the private Respondents, who have independently filed writ petition being WP(C) No. 2195/2003, have stated in their affidavit that the duties and responsibilities of the officials holding the posts of JSMS and AEO cadres are different. However, according to them the same cannot be said to be inferior and lesser than the other. As against the stand of the private Respondents that one Sri A. Barthakur, in the rank of JSMS was reverted to the post of AEO on transfer to bring home their point of argument that both the posts are interchangeable, the Petitioners by their rejoinder affidavit have shown as to how on protest being lodged and realizing the mistake, the official Respondents restored the position of said Sri Barthakur as JSMS. In this connection they have also annexed documents. 45. In Rule 3 of the Rules, altogether three classes i.e. Class-I (Sr. Grade), Class-I and Class-II have been enumerated. Each class consists of different cadres. In this connection they have also annexed documents. 45. In Rule 3 of the Rules, altogether three classes i.e. Class-I (Sr. Grade), Class-I and Class-II have been enumerated. Each class consists of different cadres. Barring Class-II with which the present controversy is concerned, in other two classes consisting of different cadres, avenue of promotion is provided from one cadre to another. An exception has been made only in the Class-II service consisting the cadres of JSMS and AEO. Although, the rules provides for direct recruitment to both the categories, but in practice direct recruitment is resorted only to the category of AEO from which the status of JSMS is conferred by issuing order of transfer upon completion of years of service as AEO. The Annexure-B, which is quoted above will clearly suggest that the same is not a pure and simple transfer order but conferment of status of JSMS to the incumbents in the cadre of AEO. It appears that the Assam Agricultural Service Rules, 1980 was framed clubbing the categories of JSMS and AEO in a single class merely on the basis of the same pay scale attached to both the posts. While doing so, the rule making authority ignored the other attending circumstances such as duties, responsibilities, rank and status involved in both the posts. It appears that the historical background of both the categories of posts was also not traced and the whole emphasis was solely on the basis of the identical pay scale. Even in reference to pay scale, which is also the emphasis in the affidavit and the stand of the official Respondents, the circumstances in which the officers in the cadre of AEO was provided with the particular pay scale was ignored. The fact leading to granting of special pay upon placement and granting of status of JSMS was also ignored. 46. Throughout the course of argument and as also could be gathered from the stand in the affidavit, the whole emphasis is on the identical pay scale in respect of both the categories without highlighting anything as to the other factors like rank, status, duties and responsibilities attached to the post of JSMS. The question necessarily arises, can the pay scale alone be decisive of equal rank and status of two different categories of posts. As noticed above, two separate seniority lists are prepared for both the categories. The question necessarily arises, can the pay scale alone be decisive of equal rank and status of two different categories of posts. As noticed above, two separate seniority lists are prepared for both the categories. Higher seniority and responsibility of JSMS are also admitted. In this connection FR 9(25) may also be referred to which deals with "special pay" which is being provided the incumbents in the cadre of JSMS. FR 9(25) defines "special pay" as follows: F.R. 9(25) - Special Pay means an addition of the nature of pay to the emoluments of a post or of a Govt. Servant, granted in consideration of (a) The special arduous nature of the duties; or (b) A specific addition to the work or responsibility. 47. From the above definition of "special pay", there is no escape from the fact that the officers in the cadre of JSMS are entrusted with special arduous nature of duties or there is specific addition to the work or responsibility. As noticed above and as admitted by all the parties an incumbent entering into the Assam Agricultural Service is first posted as AEO and after rendering good number of years of service becomes eligible for the status of JSMS. The moment the word status is indicated in the order of posting of an AEO as JSMS, with special pay of Rs. 75/-, same necessarily will go to show that the JSMS cadre carries higher responsibility, a fact, which has been admitted by the official Respondents, more particularly in their aforesaid letter dated 14.6.2004. This is also precisely the reason as to why by the notification dated 26.8.2003, the post in the cadre of JSMS have been described as Senior Agricultural Development Officer and that of AEO as Agricultural Development Officer. Thus here is a case, in which inspite of the fact that both the categories constitute two different cadres and the cadre of JSMS is in a higher pedestal, but yet when the question of promotion arises, then both the categories are equated without any differentiation. It will be pertinent to mention here that in the past, the kind of situation, which has arisen now, had never occurred inasmuch as the zone of consideration on all the occasions confined to JSMS only considering the number of vacancies. It will be pertinent to mention here that in the past, the kind of situation, which has arisen now, had never occurred inasmuch as the zone of consideration on all the occasions confined to JSMS only considering the number of vacancies. However, with bringing the 163 posts together, the zone of consideration has enlarged taking into its fold the junior officers in the category of AEO. Thus, the kind of situation, which has now emerged was never visualized in the past. 48. The decisions on which Mr. R.P. Sarma, learned Counsel for the Petitioners JSMS placed reliance are on three principles i.e. the long standing practice in the department shall prevail, if two reasonable constructions are possible, courts should adopt that construction which is just and reasonable, power of the Court to read down and rationalize the rules and the view advancing cause of justice. In the case of N. Suresh Nathan (supra), dealing with the question whether the construction made of the particular provision in the Rules on which the past practice extending over a long period is based is untenable to require upsetting it, the Apex Court held that if the past practice is based on one of the possible construction which can be made of the Rules then upsetting the same now would not be appropriate. The Apex Court emphasizing the need to determine the question raised in that perspective, upheld the contention of the Appellant to a particular mode of interpretation of the rules in question in conformity with the past practice followed consistently. In a nutshell the Apex Court emphasized that a long standing practice in the department shall prevail. 49. In the case of Nirothi Lal Gupta (supra), the Apex Court held that the Court could in an appropriate case iron out the creases to remove ambiguity to give full force and effect to the legislative intention which is to be gathered by putting up fair construction of all the provision reading together. This endeavor would be to avoid absurdity or unintended unjust results by applying the doctrine of purposive construction. If two reasonable interpretations are possible, the court would adopt that construction which is just, reasonable or sensible. Learned Counsel for the Petitioners placed reliance on the case of Delhi transport Corporation (supra) to bring home his point of argument regarding the power of the court to read down and rationalize the rules. If two reasonable interpretations are possible, the court would adopt that construction which is just, reasonable or sensible. Learned Counsel for the Petitioners placed reliance on the case of Delhi transport Corporation (supra) to bring home his point of argument regarding the power of the court to read down and rationalize the rules. In this connection he also placed reliance on the decision of Pannalal (supra) wherein also the Apex Court reiterated on the settled principle of interpretation relating to reading down the provisions of an Act so as to sustain their constitutionality, as well as for effectuation of the purpose of the statute. He also placed reliance on the decision in Rambai Manjanath Nayak (supra) to emphasis towards adoption of a view advancing cause of justice. 50. Mr. K.N. Choudhury, learned Sr. Counsel for the private Respondents placed reliance on the decision of the Apex Court in Tarsem Singh (supra) primarily to counter the argument made on behalf of the Petitioners that the posting as JSMS involves promotion. Referring to the concept of promotion, the Apex Court in that case held that promotion as understood under the Service Law Jurisprudence means advancement in rank, grade or both and that promotion is always a step towards advancement to a higher position grade or honour. In other words, promotion results in movement from a lower grade to higher grade or a lower scale to higher scale. Thus, according to Mr. Choudhury, the granting of special pay to the incumbents in the cadre of JSMS does not involve any promotion and that the post of JSMS cannot be treated as higher in rank and status than AEO. 51. As discussed above, till 1977 the post of JSMS was promotional for AEO. There was a stage in which the pay scale of the JSMS was the same with that of the promotional post of SDAO. The official Respondents themselves have made the disclosure that appointment is made to the entry grade level of AEO from which one is appointed as JSMS. Expression used in the order of appointment as such is conferment of status. Such appointment can be earned only by the senior AEOs. Thus there are definite criteria of being posted as JSMS from the cadre of AEO. Upon such appointment, the incumbent is also entitled to get a special pay of Rs. 75/-. Expression used in the order of appointment as such is conferment of status. Such appointment can be earned only by the senior AEOs. Thus there are definite criteria of being posted as JSMS from the cadre of AEO. Upon such appointment, the incumbent is also entitled to get a special pay of Rs. 75/-. The official Respondents have also admitted that apart from the fact that historically the post of JSMS was a promotional post for the AEOs, but even now they are considered to be with higher responsibility. In the first note in the file initiating the proposal for upgradation of 100 posts, the departmental head also spelt out that the cadre of JSMS is in between the cadres of AEO and SDAO. The note appended to Rule 3 of the Rules as noticed above also places the post of JSMS in higher pedestal and rather somewhat equates with that SDAO. However, with the issuance of the OM dated 31.8.77, the pay scale of both the categories became the same with the revision effected to the pay scale of the AEO. It has already been noticed that such revision in the pay scale of AEO was not in reference to the pay scale of JSMS, but was to bring parity to different technical services. The Finance Department also on demand made by the Petitioners for higher pay scale commensurating to the revised pay scale of AEO, although did not agree to such demand, granted special pay of Rs. 75/- in recognition of the established fact that the cadre of JSMS was higher than the cadre of AEO. 52. Mr. Choudhury, placed strong reliance on the decision in Kapildeo Prasad Singh's (supra) case. In that case the Apex Court did not find fault with grouping of posts in feeder categories for the purpose of promotion. In that case, the State Government grouped together employees in Group-B and in Group-C belonging to non-gazetted category with Group-A gazetted officer for promotion as Manager etc. Referring to some earlier decisions upholding such grouping for the purpose of promotion on the ground that the nature of duties and functions were same or the one group was equated with that of another group, the Apex Court upheld such grouping of the non-gazetted posts with that of gazetted posts with different pay scale for the purpose of promotion. Referring to some earlier decisions upholding such grouping for the purpose of promotion on the ground that the nature of duties and functions were same or the one group was equated with that of another group, the Apex Court upheld such grouping of the non-gazetted posts with that of gazetted posts with different pay scale for the purpose of promotion. In that case particular quota was prescribed for different categories unlike the present case in which no quota has been earmarked for JSMS and AEO. The Apex Court observed that "there may be varied reasons or situations or considerations that may be the basis for a decision by Government in clubbing two groups together to improve the chances of promotion, even though one was a feeder channel for the other". In that case extending the quota for the promotees from 50% to 75% in the event of availability of suitable promotees, the grouping was made and such increases in promotional quota was indeed intended to accommodate the Groups-B and C also in the Channel to the promotion category. Another factor towards upholding the grouping of various categories for the promotional post of Managers was that, it was felt that there must be more persons having experience in different groups. In the cadre of Manager people with such experience were considered necessary. The Government kept all those factors and the scales in mind and explained the circumstances in its counter affidavit and it was in that context the provision made creating the avenue of promotion from Groups- B and C employees was held to be not irrational. 53. In the instant case, nothing has been explained in the affidavit as to why it was considered necessary for inclusion of the JSMS cadre with that of AEO for the purpose of promotion as SDAO. In the past and even in the present the JSMS cadre has all along been treated to be in the higher pedestal than that of AEO. Various factors are involved towards equation of posts and the pay scale alone is not decisive of such equation. It is an admitted position that the posts involved in JSMS cadre carry higher status and responsibility and this is precisely the reason as to why they have been granted special pay in conformity with the provisions of FR 9(25) quoted above. It is an admitted position that the posts involved in JSMS cadre carry higher status and responsibility and this is precisely the reason as to why they have been granted special pay in conformity with the provisions of FR 9(25) quoted above. The Respondents have adopted the simplistic solution to the issue referring to only one factor, which is the same pay scale for both the categories of posts unmindful of other hosts of factors involved equation of posts. 54. The Apex Court in the case of D.S. Nakara v. Union of India as reported in : (1983) 1 SCC 305 made the following observations on the burden of the State to justify the legislative/administrative action in the touchtone of Article 14 of the Constitution: 13. The other facet of Article 14 which must be remembered is that it eschews arbitrariness in any form. Article 14 has, there fore, not to be held identical with the doctrine of classification. As was noticed in Maneka Gandhi case in the earliest stages of evolution of the constitutional law, Article 14 came to be identified with the doctrine of classification because the view taken was that Article 14 forbids discrimination and there will be no discrimination where the classification making the differentia fulfills the aforementioned two conditions. However, in E.P. Royappa v. State of T.N., it was held that the basic principle which informs both Article 14 and 16 is equality and inhibition against discrimination. This Court further observed as under: (SCC p. 38, para 85) From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. 15. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. 15. Thus the fundamental principle is that Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification must satisfy the twin tests of classification being founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question. 16. As a corollary to this well established proposition, the next question is, on whom the burden lies to affirmatively establish the rational principle on which the classification is founded correlated to the object sought to be achieved? The thrust of Article 14 is that the citizen is entitled to equality before law' and equal protection of laws. In the very nature of things the society being composed of unequals a welfare State will have to strive by both executive and legislative action to help the less fortunate in the society to ameliorate their condition so that the social and economic inequality in the society may be bridged. This would necessitate a legislation applicable to a group of citizens otherwise unequal and amelioration of whose lot is the object of State affirmative action. In the absence of doctrine of classification such legislation is likely to flounder on the bed rock of equality enshrined in Article 14. The Court realistically appraising the social stratification and economic inequality and keeping in view the guidelines on which the State action must move as constitutionally laid down in Part IV of the Constitution, evolved the doctrine of classification. The doctrine was evolved to sustain a legislation or State action designed to help weaker sections of the society or some such segments of the society in need of succor. Legislative and executive action may accordingly be sustained if it satisfies the twin tests of reasonable classification and the rational principle correlated to the object sought to be achieved. The State, therefore, would have to affirmatively satisfy the Court that the twin tests have been satisfied. It can only be satisfied if the State establishes not only the rational principle on which classification is founded but correlate it to the objects sought to be achieved. The State, therefore, would have to affirmatively satisfy the Court that the twin tests have been satisfied. It can only be satisfied if the State establishes not only the rational principle on which classification is founded but correlate it to the objects sought to be achieved. This approach is noticed in Ramana Dayaram Shetty v. International Airport Authority of India when at 1034 SCR SCC 506the Court observed that a discriminatory action of the Government is liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory. 55. In the case of Indian Railways S.A.S. Staff Association v. Union of India and Ors. as reported in : AIR 1998 SC 805 , the Apex Court observed as follows: Thus, the simplistic solution to classification merely based on the scales of pay might lead into various complications and might lead to administrative hierarchical imbalances in any particular organization. Selection procedure for appointment to a particular group post and requirements of a department for classification of posts are valid considerations and any disturbance thereof would certainly lead to compounding of problems. We, therefore, cannot subscribe to the view that the scale of pay alone can be the criteria for classification of posts. Respondents have give valid and justifiable reasons as to why the a\Account staff in the scale of Rs. 2000-3200/- cannot be put at par with their counterparts in CAG or CGDA I respect of putting the Account staff in Group 'B' posts merely on the basis of parity of pay scale. 56. In the case of S.I. Rooplal v. Lt. Governor, Delhi as reported in : AIR 2000 SC 594 , the Apex Court while pointing out that equivalency of two posts is not judged by the sole fact of equal pay interfered with the view taken by the Tribunal that the two posts involved in that case are not equivalent merely on the ground that the two posts did not carry the same pay scale. The Apex Court in that case in reference to its earlier decisions emphasized that the two criterion for equivalence is the status and the nature and responsibility of the duties attached to the two posts. The Apex Court in that case in reference to its earlier decisions emphasized that the two criterion for equivalence is the status and the nature and responsibility of the duties attached to the two posts. The observation of the Apex Court in paragraph 17 of the judgment is quoted below: 17. In law, it is necessary that if the previous service of a transferred official is to be counted for seniority in the transferred post then the two posts should be equivalent. One of the objections raised by the Respondents in this case as well as in the earlier case of Antony Mathew is tat the post of a Sub-Inspector in the BSF is not equivalent to the post of Sub-Inspector (Executive) in Delhi Police. This argument is solely based on the fact that the pay scales of the two posts are not equal. Though the original Bench of the tribunal rejected this argument of the Respondent, which was confirmed at the state of SLP by this Court, this argument found favour with the subsequent Bench of the same tribunal whose order is in appeal before us in these cases. Hence, we will proceed to deal with this argument now. Equivalency of two posts is not judged by the sole fact of equal pay. While determining the equation of two posts many factors other than 'Pay' will have to be taken into consideration, like the nature of duties, responsibilities, minimum qualification etc. it is so held by this Court as far back as in the year 1968 in the case of Union of India v. P.K. Roy : (1968) 2 SLR 186 : AIR 1968 SC 850 . In the said judgment, this Court accepted the factors laid down by the committee of Chief Secretaries which was constituted for settling the disputes regarding equation of posts arising out of the State Reorganization Act, 1956. These four factors are (i) the nature and duties of a post; (ii) the responsibilities and powers exercised by the officer holding a post; the extent of territorial or other charge held ore responsibilities discharged; (iii) the minimum qualifications, if any, prescribed for recruitment to the post; and (iv) the salary of the post. It is seen that the salary of a post for the purpose of finding out the equivalency of posts is the last of the criterion. It is seen that the salary of a post for the purpose of finding out the equivalency of posts is the last of the criterion. If the earlier three criteria mentioned above are fulfilled then the fact that the salaries of the two posts are different, would not in any way make the post 'not equivalent'. In the instant case, it is not the case of the Respondents that the first three criteria mentioned hereinabove are in any manner different between the two posts concerned. Therefore, it should be held that the view taken by the tribunal in the impugned order that the two posts of Sub-Inspector in the BSF and the Sub-Inspector (Executive) in Delhi Police are not equivalent merely on the ground that the two posts did not carry the same pay-scale. is necessarily to be rejected. We are further supported in this view of ours by another judgment of this Court in the case of Vice-Chancellor, L.N. Mithila University v. Dayanand Jha : (1986) 3 SCC 7 :AIR 986 SC 1200 wherein at para 8 of the judgment, this Court held" "Learned Counsel for the Respondent is therefore right in contending that equivalence of the pay-scale is not the only factor in judging whether the post of Principal and that of Reader are equivalent posts. We are inclined to agree with him that the real criterion to adopt is whether they could be Regarded of equal status and responsibility ***. The true criterion for equivalence is the status and the nature and responsibility of the duties attached to the two posts. (Emphasis added) 57. In the instant case as noticed above, it is only in reference to the pay scale attached to the posts of JSMS and AEO, the Respondents have advanced the argument towards defending the Rules relating to promotion. In the process other factors towards equation of posts as enumerated by the Apex Court in the aforesaid decision of S.I. Rooplal have not at all been referred to. All these factors have already been discussed above and such discussions lead to the irresistible conclusion that the cadre of JSMS apart from being a distinct and separate cadre, is also in the higher pedestal than the cadre of AEO. All these factors have already been discussed above and such discussions lead to the irresistible conclusion that the cadre of JSMS apart from being a distinct and separate cadre, is also in the higher pedestal than the cadre of AEO. The two seniority lists of JSMS and AEO leave no manner of doubt that officers in the cadre of JSMS are by far senior to the officers in the cadre of AEO. While it is true that once it is held that the cadre of JSMS is in the higher rank and status than that of AEO, the seniority between the incumbents of the two cadres is irrelevant, but the same has been referred to having regard to the admitted fact and position that, it is the senior persons in the cadre of AEO who are appointed as JSMS. 58. The aforesaid conclusion and finding in favour of the JSMS holding them to be in the higher rank and status than the AEO, the moot question relating to interpretation of Rule 12(4)(v) in reference to Rule 12(5)(e) is now required to be answered in reference to Rule 3 of the said Rules. As already noticed above, the various cadres enumerated in Rule 3 under different classes have their avenue of promotion from one cadre to another barring the cadres of JSMS and AEO. As in the case of promotion to the cadre of Deputy Director from amongst the Subject Matter Specialist (SMS) and SDAO as per provisions of Rule 12(5)(c), but in reality the promotion being confined to the cadre of SMS only and the SMS is a promotional cadre for the SDAO, in the case of promotion to the cadre of SDAO also, the provision in Rule 12(5)(e) providing criteria for promotion with educational qualification and rendering of service for a minimum period of 5 years in the corresponding lower cadre of the service, must be construed to mean the JSMS cadre only. The Rule 12(4)(v) will have to be read in conformity with the provision of Rule 12(5)(e) and the corresponding lower cadre of the service will only include the cadre of JSMS. Merely because Rule 12(4)(v) of the Rules provides for eligibility for promotion from AEO and JSMS to SDAO, such a provision cannot obliterate the admitted position of posting the AEOs as JSMS carrying higher status and responsibility, on the basis of experience and seniority. Merely because Rule 12(4)(v) of the Rules provides for eligibility for promotion from AEO and JSMS to SDAO, such a provision cannot obliterate the admitted position of posting the AEOs as JSMS carrying higher status and responsibility, on the basis of experience and seniority. Having regard to such an admitted position, it will be incongruous to include the AEOs to be in the corresponding lower cadre. An AEO, who can earn his posting as JSMS only on gaining experience and seniority, if allowed to be considered for promotion as SDAO, same will lead to a situation in which the admitted factor granting higher status to the AEOs as JSMS cannot be reconciled. 59. For the foregoing reasons and conclusions, I am of the considered opinion that Rule 12(4)(v) of the Rules will have to be understood in the context of the interpretation of Rule 12(5)(e) pertaining to "corresponding lower cadre of the service" to mean the cadre of JSMS only. To that extent the settled principle of interpretation relating to reading down the provisions of statute in respect of Rule 12(4)(v) of the Rules so far as the same includes AEO is called for. Such an interpretation, is also required to be given in tune with the observation of the Apex Court in the case of N. Suresh Nathan (supra) that a past practice being followed on one of the possible constructions which can be made of the rules need not be upset. Such an interpretation towards reading down the aforesaid provision so as to provide the meaning of inclusion of only the JSMS in the category of "corresponding lower cadre of the service" will also not exclude the AEOs from being considered for promotion as SDAO inasmuch as at one stage of their service, they would be posted as JSMS on the basis of their seniority and experience. Their inclusion in Rule 12(4)(v) is required to be construed in that manner only which will be just, reasonable and sensible and shall rationalize the rules. 60. I conclude with the following observations of the Apex Court in the case of M. Subba Reddy v. A.P. SRTC as reported in : (2004) 6 SCC 729 and in the case of Mahadeo Oil Mills v. Sub-Divisional Magistrate as reported in : (1985) 4 SCC 343 Furthermore, when two interpretations are possible, the one which promotes justice and equity should be preferred. Although hardship cannot be a ground for striking down a law but when two views are possible, it is permissible in law that the court shall interpret the statutory provision in such a manner so that possible hardship is avoided. I am aware of the well-settled rule of construction that the argument from inconvenience and hardship is a dangerous one and is only admissible in construction of statutory provisions where there are alternative methods of construction. But another principle which has to be borne in mind is that if too literal an adherence to the words of an enactment appears to produce an absurdity and injustice, it will be the duty of the court of construction to avoid such a result in case the enactment is capable of any other fair interpretation. 61. In the result, the writ petition in WP(C) No. 1043/2003 stands allowed and the writ petition in WP(C) 2195/2003 stands dismissed. Consequently, the official Respondents shall carry out the necessary formalities at the earliest opportunity and not later than two months from today towards upgradation of the 100 incumbents in the cadre of JSMS against the 100 upgraded posts as was proposed and accepted. As regards the normal promotional 63 posts, action shall be taken towards convening selection keeping in mind the observations made above relating to requirement of preparation of yearwise panel etc. if the same are not the accumulated vacancies of a particular year. Even if they are the accumulated vacancies of a particular year, the selection shall pertain to that year only. There is no question of clubbing of the 100 upgraded posts with that of the said 63 posts. There shall be no question of applying the reservation policy against the 100 upgraded posts. However, same shall be applicable in case of the 63 normal promotional posts. While applying the reservation and roster, the authorities will keep in mind that such reservation will apply in relation to the number of posts comprising the cadre of SDAO and not in relation to vacancies. In this connection the law laid down by the Apex Court made in the case of R.K. Sabharwal v. State of Punjab reported in : (1995) 2 SCC 745 , may be referred to. Which are as follows: The expressions 'posts' and 'vacancies', often used in the executive instructions providing for reservations, are rather problematical. In this connection the law laid down by the Apex Court made in the case of R.K. Sabharwal v. State of Punjab reported in : (1995) 2 SCC 745 , may be referred to. Which are as follows: The expressions 'posts' and 'vacancies', often used in the executive instructions providing for reservations, are rather problematical. The word 'post' means an appointment, job, office or employment. A position to which a person is appointed. 'Vacancy' means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a 'post' in existence to enable the 'vacancy' to occur. The cadre-strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts which form the cadre-strength. The concept of 'vacancy' has no relevance in operative the percentage of reservation. When all the roster points in a cadre are filled the required percentage of reservation is achieved. Once the total cadre has full representation of the Scheduled Castes/Tribes and Backward Classes in accordance with the reservation policy then the vacancies arising thereafter in the cadre are to be filled from amongst the category of persons to whom the respective vacancies belong. 62. The writ petitions are answered in the above manner, leaving the parties to bear their own costs.