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Gauhati High Court · body

2007 DIGILAW 392 (GAU)

Ch. Lalnunchama, SDO v. State of Mizoram

2007-06-01

HRISHIKESH ROY

body2007
1. Heard Mr. K.N. Choudhury, learned senior counsel assisted by Mr. Michael Zothankhuma and Mr. I. Choudhury appearing on behalf of the petitioner. Also heard Mr. N. Sailo, learned Addl. A.G. appearing for respondent Nos. 1-3 and Mr. C. Lalramzauva, learned counsel for respondent No. 4. 2. By filing this writ petition, the petitioner, who is an electrical engineer and is an aspirant for the post of Executive Engineer, PWD, Electrical Division has challenged the promotion notification dated 17.2.2004, whereby respondent No. 4 Pu Francis Lalngaizuala has been promoted to the said post. The petitioner also seek a declaration that rule 4(2)(b), rule 5(3) and Column 8 of SI. No. 5 of Schedule B of the Mizorarn Engineering Services Rules, 2001 ('the 2001 Rules') be declared ultra vires to the Constitution or alternately to read down the said provisions of the 2001 Rules to mean that an incumbent in one discipline/branch/sub-wing in Engineering Grade-V shall have no right for appointment or promotion in any other discipline/branch/sub-wing. A further direction is sought for forwarding the names of Electrical Engineers in Engineering Grade-V under PWD for promotion to the post of Executive Engineer (Electrical) which is a Grade-IV post in the service Cadre. 3. The petitioner Ch. Lalnunchama was appointed to the post of the Assistant Engineer/SDO in (Electrical/Mechanical) under Public Works Department by appointment notification, dated 16.8.1993. He is a holder of B.E. Degree in Electrical engineering. The petitioner was posted as Asst. Engineer P.W.D. in the Office of Supdt. Engineer, PWD, Mechanical Circle, Aizawl. The respondent No. 4 Francis Lalngaizuala, who was a B.E. (Mechanical) was appointed as an Assistant Engineer by notification dated 3.12.1985 and was posted in the Mechanical Division of the P.W.D. It is not in dispute that the petitioner was appointed to the post of Assistant Engineer about eight years after the appointment of the respondent No. 4. It is also not in dispute that the petitioner is a holder of B.E. (Electrical) Degree, whereas respondent No. 4 is a holder of B.E. (Mechanical) Degree. 4. By notification dated 10.3.2000, a new Electrical Division with its headquarter at (Aizawl, under the PWD, Mechanical Circle was created by the Mizoram Government. On creation of the new electrical division, the Electrical Maintenance Sub-Division, Aizawl, and Lunglei Electrical Sub-Division under the Mechanical Division-1 Aizawl, and Lunglei Mechanical Division were transferred to the newly created Electrical Division. 5. 4. By notification dated 10.3.2000, a new Electrical Division with its headquarter at (Aizawl, under the PWD, Mechanical Circle was created by the Mizoram Government. On creation of the new electrical division, the Electrical Maintenance Sub-Division, Aizawl, and Lunglei Electrical Sub-Division under the Mechanical Division-1 Aizawl, and Lunglei Mechanical Division were transferred to the newly created Electrical Division. 5. Following the creation of the new Electrical Division as aforesaid, for filling up the new post of the Executive Engineer, a proposal was mooted for promotion of a Graduate Electrical Engineer of the Department. In the communication dated 12.5.2000, it was noted by the Government that incumbent Executive Engineer is badly required for posting in the newly created Electrical Division. Initially, one Pu C. Lianlunga who was working as the Executive Engineer (Planning) was posted and transferred to the aforesaid newly created post of Executive Engineer (Electrical) by notification dated 10.11.2000. Incidentally Pu Lianlunga was a B.E. (Electrical) degree holder. 6. When Pu C. Lianlunga was transferred back to his parent department on 1.9.2003, the respondent No. 4, who is a B.E. (Mechanical) was allowed to look after the charge of Executive Engineer, PWD, Electrical Division in addition to his own duties as Asst. Engineer, by notification dated 5.9.2003. The PWD (Electrical), Technical Union opposed (he posting of a B.E. Mechanical Degree Holder to the aforesaid post of Executive Engineer (Electrical) Division of the PWD and submitted a representation on 9.9.2003, requesting for posting of an Electrical Engineer in the Electrical Division. 7. Some lime around the month of September-October 2003, the Government sent the records of eligible Grade-V engineers of the Mechanical Wing of the PWD to the Mizoram Public Service Commission, hereinafter referred to as "the MPSC" for consideration of promotion to the post of Executive Engineer (Electrical) Division. The MPSC in its response dated 13.11.2003 asked the Department, to review its recommendation and returned the files back to the Government, seeking clarification on certain points mentioned in its response dated 13.11.2003. As the view of the MPSC has some bearing in the present dispute, the same is extracted herein below for ready reference : - "1. If the proposal is considered as per the proposal of the concerned Department Mechanical Engineer ^ill be promoted in the post of Electrical Engineer. As the view of the MPSC has some bearing in the present dispute, the same is extracted herein below for ready reference : - "1. If the proposal is considered as per the proposal of the concerned Department Mechanical Engineer ^ill be promoted in the post of Electrical Engineer. Therefore, not only the department, but also the public as well will suffer the result/decision as the incumbent who has no electrical background is to be posted in the electrical Division. 2. Since, the Mechanical Engineers and Electrical Engineers do not have any relationship and being a separate discipline, it is highly/ strongly suggested that completely separate inter-se seniority be prepared. So that the incumbents could get their due share as well as benefit in the course of their services. It is further recommended that an Executive order be made for the purpose and if so requires, the service rules (MES-2001) also be amended. 3. The Department of PWD has been reorganized and making into three zones. Accordingly, the need is great felt for the Division of Mechanical Engineer and Electrical Engineer grouped together under mechanical wing into separate zone. So that their skill and efficiency could be effectively utilized by the Government following right man in the right post. Unless, the above suggestion /recommendation is materialised as soon as possible, the efficiency of the Engineer under Mechanical wing could not be utilized by the department, but would rather be a drawback crippling the progress to be achieved, by the department, therefore, it is decided that any comment/mew he intimated to the commission by the department at an earlier date." 8. Notwithstanding the strong reservation of the MPSC, the respondent No. 4, who is a Mechanical Engineer was promoted to the post of Executive Engineer, PWD, Electrical Division by the impugned notification dated 17.2.2004 ignoring the view of the M.P.S.C. 9. Mr. K.N. Choudhury, the learned senior counsel appearing for the petitioner submits that the erstwhile Mizoram Engineering Service Rules, 1995 hereinafter referred to as "the 1995 Rules" was repealed and new Mizoram Engineering Service Rules, 2001 hereinafter referred to as "the 2001 Rules" was framed. In the 1995 Rules, the Mizoram Engineering Service had, inter alia, the Public Works Cadre, which in turn included separate Wings : - (a) Civil Wing which includes post of Civil Engineers of both PWD and Power & Electricity Department. In the 1995 Rules, the Mizoram Engineering Service had, inter alia, the Public Works Cadre, which in turn included separate Wings : - (a) Civil Wing which includes post of Civil Engineers of both PWD and Power & Electricity Department. (b) Mechanical Wing including Mechanical Engineers of both PWD and Power & Electricity Department. (c) Architectural Wing. Under proviso to rule 4(5) of the 1995 Rules, it was permissible for the Government to fill up any post in any cadre by transfer or promotion of any member from one Cadre to another of the component department if it was felt by the Cadre Controlling Authority that such posting and transfer adequately meets the specialization needs of the post. However, under the 2001 Rules, restrictions on transfer and promotion of engineers from one Cadre to another and from one Wing to another Wing was imposed. Under rule 5(3) of the 2001 Rules, it is provided that a member of one Cadre shall not be appointed or have any right for appointment of promotion to any post included, in any other Cadre. Similarly, a member of one Wing shall have no right for appointment or for promotion in any other Wing. If one reads rule 5(3) of the 2001 Rules, without referring to other provisions of the Rules, it can be seen that promotion of engineers, be it Mechanical or Electrical, under the Mechanical Wing for higher posts in Mechanical Wing is impermissible. But a submission is made by the petitioner's counsel that such could not be the legislative intent as can be inferred by referring to other provisions, and more particularly the provisions contained in rule 19 and rule 20 which provides for procedures for making promotions to vacancies in Grade-IV and above in the PWD. Under rule 19(3) of the 2001 Rules, for promotion to Grade-IV from the feeder post of Grade-V, an officer is held to be eligible if inter-alia, he has rendered not less than 8 years service in the engineering Grade-V. Under General Procedure prescribed for promotion under rule 20, the promotions are to be made on recommendation of the MPSC. 10. Schedule 13 of the 2001 Rules provides for the minimum length of service as well as the technical qualification required for giving promotion to different grades of engineering services in the PWD. 10. Schedule 13 of the 2001 Rules provides for the minimum length of service as well as the technical qualification required for giving promotion to different grades of engineering services in the PWD. It is provided in Schedule 13 that for making promotion to Engineering Grade-IV, (Executive Engineer), five years service in Grade-V is prescribed as qualifying period of service for being considered for promotion to the selection post of Executive Engineer in Grade-IV. In prescribing the qualification criteria, specific branch of engineering is not indicated in SI. No. 5 of Schedule B, which lays down the qualification criteria for promotion to the Executive Engineers. However, under SI. No. 6 of the Schedule B which provides for making appointment to the posts in Engineering Grade-V, it is specifically indicated under Column 10 that a degree in concerned engineering branch or its equivalent would be, the Technical qualification required for entering service in the feeder post in Grade-V. By referring to the aforesaid specifications made for the purpose of filling/up of the post of Engineering Grade-V, wherein the qualifying five years service has been prescribed to be the minimum eligible service for being considered for promotion to Grade IV, Mr. K.N. Choudhury submits that five years service without specification of Engineering Branch has to be understood as qualifying Grade-IV service in a specific branch of Engineering. Or else the entire objective of specifying branch of engineering for entering the feeder post in Grade-V would become meaningless and un-equals like an engineering graduate in the Mechanical Branch would be treated at par with an Engineering Graduate of the Electrical Branch. This has been submitted to be highly discriminatory and it is further submitted that the executive intent as reflected in the Government Communication dated 12.5.2000 (Annexure-E), is not fulfilled and the rule 5(3) of the 2001 Rules cannot be understood and interpreted in such fashion. Accordingly it is submitted that rule 5(3) of 2001 rules has to be read down to take into account Engineers of the Electrical Branch as a separate sub-Wing, who should be considered eligible for promotion to the post of Executive Engineer in Electrical Division under the PWD and Mechanical Engineers of the Mechanical Wing ought not to be considered eligible for promotion to a Grade-IV post of an Executive Engineer of an Electrical Division, 11. It is, further contended by the learned counsel appearing for the petitioner that under article 320(3) of the Constitution of India, the State Public Service Commission is required to be consulted on all matters relating to methods of recruitment to Civil Services for Civil Posts. It has further submitted Hint when the MPSC by its response dated 13.11.2003 (Annexure-M) had indicated that public interest would suffer if a Mechanical is Electrical Engineer and recommended that in order to ensure the right man in the right post, necessary correction in the 2001 Rules be made to ensure better utilisation of the engineers available, the Rules enacted in the year 2001 not providing for differential consideration, for the separate discipline of Electrical Engineers and Mechanical Engineers, is clearly contrary to the requirements of article 320(3). Such Provisions are discriminatory and violates the requirement of equal treatment as two separate classes are being treated alike and accordingly it is submitted that the impugned provisions are liable to be declared as ultra-vires to the Constitution. Alternately it is further submitted on behalf of the petitioner that the provision of rule 5(3) should be read down and interpreted to mean that Engineers holding B.E. (Mechanical) Degree should not be considered to be eligible for a right to appointment or promotion to the post of the Electrical Engineer in PWD Electrical Division, although both of them belong to the Mechanical Wing of the Department. 12. The learned senior counsel appearing for the petitioner further contends that there is clear ambiguity in the provisions of rule 4(2)(i)(b) read with rule 19 and Schedule B of the 2001 Rules and to interpret the said provisions to understand that a Mechanical Engineer can be posted to the post of Executive Engineer (Electrical), would not serve the legislative intent. Under such circumstances when words chosen in the statutes are lacking in clarity and precision, it is submitted that the said enactment should be interpreted and be read by keeping in mind, the legislative intent clearly expressed by the Government in the Annexure-E Communication dated 12.5.2000. It is further submitted that requirements for making appointment to the feeder post of Grade-V Engineers from different engineering discipline, as incorporated in Schedule B, should not be overlooked while examining the purport of rules 5(3). It is further submitted that requirements for making appointment to the feeder post of Grade-V Engineers from different engineering discipline, as incorporated in Schedule B, should not be overlooked while examining the purport of rules 5(3). Only when all the provisions of the 2001 Rules are kept in mind and an interpretation is made, the true objective of the enactment can be found. 13. In support of the submissions as to the mode and manner to be adopted by this court for interpretation of the aforesaid provisions of the Rules, the following decisions has been cited on behalf of the writ petitioner (i) Carew & Co. Ltd. v. Union of India, (1975) 2 SCC 791 (ii) Organo Chemical Industries and Another v. Union of India & Others, (1979) 4 SCC 573 (iii) Utkal Contractors and Joinery (P.) Ltd. and Others v. State of Orissa and Others, (1987) 3 SCC 279 (iv) D.S. Nakara and Others v. Union of India, (1983) 1 SCC 305 . 14. Appearing for the respondent No. 4 Mr. C. Lalramzauva, the learned counsel submits on the other hand that the words, used in the Rule of 2001 forgiving promotion to the post of Grade IV Executive Engineer are clear, and Rules of interpretation would not permit adding of any additional words, in rule 5(3) to exclude B.E. (Mechanical) Degree Holder from the Mechanical Wing from being considered as eligible for promotion to the post of Executive Engineer {Electrical Division). 15. The learned counsel further submits that the names of both the petitioner, as well as respondent No. 4, appear in the common seniority list under the Mechanical Wing of the PWD although they are B.E. Degree Holders in different branches of Engineering. The said seniority lists has been made the basis for making promotion to the Selection Posts of Grade IV Electrical Engineer, As the petitioner has not challenged the placement of respondent No. 4 in SI. No. 1 of the common seniority list dated 14.6.2002, where the name of the petitioner appears at SI. No. 2, the appointment by promotion given to respondent No. 4 on the basis of the said seniority list, cannot be challenged and such a challenge is not liable to be entertained by this court. 16. Mr. No. 1 of the common seniority list dated 14.6.2002, where the name of the petitioner appears at SI. No. 2, the appointment by promotion given to respondent No. 4 on the basis of the said seniority list, cannot be challenged and such a challenge is not liable to be entertained by this court. 16. Mr. C. Lalramzauva has further contended that if the respondent No. 4 is with a B.E. Mechanical is considered in eligible for being posted as Executive Engineer (Electrical), in future consideration for further promotion to the post of Superintendent Engineer, which is a common promotional post for both Mechanical and Electrical Executive Engineers, the writ petitioner would loose out on getting promotion to the higher post, as the said post of Superintendent Engineer would he exclusively meant to he filled up, only by Mechanical Engineering Degree Holder and not by Electrical Engineering Degree Holder like the writ petitioner. 17. It is further submitted on behalf of respondent No. 4 that the power of the Government to make Rules for recruitment is exclusive and as the Government has made the 2001 Rules, after taking note of all the relevant circumstances, there is no scope for interference by this court in a matter, which is clearly within the domain of the executive. In support of the aforesaid submissions the decision of the Apex court in Dr. Krushna Chandra Sahu and Others v. State of Orissa and Others, (1995) 6 SCC 1 and Mallikarjuna Rao and Others v. State of Andhra Pradesh and Others, (1990) 2 SCC 707 has been relied upon by the learned counsel. 18. It is also argued that qualification mentioned in Column 10 of Schedule B which provides for direct recruitment to the post of Assistant Engineer in Grade-V, cannot be made the basis for making a challenge to a promotion given to the post of Executive Engineer Electrical which is a promotional post in Grade-IV of the Cadre. 19. Another contention that is put forward on behalf of respondent No. 4 is with reference to the curriculum pursued while attaining a B.E. Degree in Mechanical Branch. 19. Another contention that is put forward on behalf of respondent No. 4 is with reference to the curriculum pursued while attaining a B.E. Degree in Mechanical Branch. It is submitted that a B.E. Mechanical is equally competent to discharge the functions of an Electrical Engineer and the respondent No. 4 having functioned as Executive Engineer Electrical, without any complaint for last 3 years, should not be considered in eligible, for being posted to a post which deals primarily with mailers pertaining to the Electrical Branch of Engineering. It is also submitted that respondent No. 4 had no difficulty in discharging the functions of an Electrical Engineer, although he pursued a B.E. (Mechanical) Degree and accordingly, the present challenge against his appointment in the Electrical Division should not at ail be entertained by this court. 20. Mr. N. Sailo, learned Addl. A.G. representing the Government submits that both the petitioner as well as respondent No. 4 were appointed right from the very beginning in the Mechanical Wing of the PWD. There is common seniority list which was prepared on 15.9.2003, wherein the name of the petitioner appears at SI. No. 2 and name of the private respondent appears at SI. No. 1. But the petitioner has not challenged his placement in the common seniority list which includes Mechanical as well as Electrical Engineers and since the impugned promotion has been made on the basis of the seniority list dated 15.9.2003, the present petition seeking to challenge the promotion given to respondent No. 4 is not liable to be entertained by this court. 21. The learned Addl.A.G. further submits that Cadre strength of the Mechanical Wing is indicated in paragraph 18 of the counter affidavit filed on behalf of the respondents State Government. The Cadre strength can be noticed as herein below : - 1. Superintending Engineer (Mechanical) 1 post 2. Executive Engineer (Mechanical) 3 post 3. Executive Engineer (Electrical) 1 post 4. Asst. Engineer/Sub-Divisional Officer (Mechanical) 7 post 5. Sub-Divisional Officer (Electrical) 2 post From the Cadre strength it appears that up till the level of Executive Engineer, posts are indicated and earmarked for the discipline of Mechanical Engineering and for the discipline of Electrical Engineering. Executive Engineer (Mechanical) 3 post 3. Executive Engineer (Electrical) 1 post 4. Asst. Engineer/Sub-Divisional Officer (Mechanical) 7 post 5. Sub-Divisional Officer (Electrical) 2 post From the Cadre strength it appears that up till the level of Executive Engineer, posts are indicated and earmarked for the discipline of Mechanical Engineering and for the discipline of Electrical Engineering. However, there is a lone post of Superintending Engineer without any demarcation of Mechanical or Electrical Engineering, meaning thereby, that both branches of Engineers within the Mechanical Wing can rise and occupy the lone post of Superintending Engineer. Accordingly it is submitted that if the contention of the writ petitioner is accepted that promotional avenue for Electrical Engineer has to be only in respect of post meant specifically for Electrical Engineers, the petitioner would not be entitled to claim promotion to the higher post of S.E. and would loose out in the long run in the service career. 22. The Addl. A.G. also submits from the Government records that respondent No. 4 has been given promotion on the basis of recommendation made by the MPSC on 20.1.2004, which recommendation has been made, notwithstanding the reservation expressed by the MPSC in its Communication dated 13.11.2003 and accordingly it is submitted that the impugned promotion order is not liable to be interfered with by this court. 23. As regards the challenge made by the petitioner to the provisions of the 2001 Rules and the submissions made for reading down the Rules to mean no intra wing transfer within the Mechanical Wing amongst Electrical and Mechanical Engineers, it is submitted that the court's competence to examine the legality of rule is very limited. It is submitted that a challenge to the legality of the provisions can only be made for (i) lack of legislative competence and (ii) violation of any fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provision. The decision of the Supreme Court reported in State of A.P. and Others v. Mcdowell & Co. and Others, (1996) 3 SCC 709 has been cited in support of the aforesaid submissions. The learned Addl. The decision of the Supreme Court reported in State of A.P. and Others v. Mcdowell & Co. and Others, (1996) 3 SCC 709 has been cited in support of the aforesaid submissions. The learned Addl. A.G. has further cited the Supreme Court decision reported in, Dadi Jagannadhan v. Jammulu Ramulu and Others, (2001) 7 SCC 71 , wherein it is indicated that the court must proceed on the assumption that the Legislature did not make a mistake and that it did what it intended to do. The court must, as far as possible, adopt a construction which will carry out the obvious intention of the Legislature. Undoubtedly, if there is a defect or an omission in the words used by the Legislature, the court would not go to its aid to correct or make up the deficiency. The court could not add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result. The court cannot aid the Legislature's defective phrasing of an Act, or add and mend, and, by construction, make up deficiencies which are there. The decision in J.P. Bansal v. State of Rajasthan and Another, (2003) 5 SCC 134 has also been cited on behalf of the State to contend that when the language of the statute is clear and un-ambiguous and there is no obscurity, there is no scope for the court to interpret a statutory provision as there is a very thin line which separate adjudication from legislation. 24. In the reply arguments advanced on behalf of the petitioner, Mr. Michael Zothankhuma, learned counsel for the petitioner submits in response that the common seniority list has not been challenged in the present proceeding as because the Rules itself provides for a common list for the Mechanical Wing Engineers of the department. It is further contended that when the Cadre strength of the Mechanical Wing has separately indicated various posts earmarked for either Mechanical Engineer or Electrical Enginee^1 up till the rank of Grade-V vacancies, there is no justification to say that a higher post in the Cadre specifically earmarked as a post of Executive Engineer (Electrical), could also be manned by a Mechanical Engineering Degree Holder. The learned counsel also draws attention of the court: to the words in the proviso to rule 4(5) of the 1995 Rules wherein transfer of engineers from one wing to another or one cadre to another are permitted keeping in mind 'specialization needs of the post'. Accordingly it is contended that specialisation needs of the post m question cannot just be ignored and it cannot be said that it would be all right for a Mechanical Engineer to man the post meant for an Electrical Engineer. 25. In order to appreciate the arguments advanced by the learned counsel representing the parties, it would be important to take note of the changes that have been brought about in the 2001 Rules which replaced the Rules of 1995. Under the provisions of rule 4(5) of the 1995 Rules, it was possible to post, for good and sufficient reason, the engineers of one Cadre to another Cadre of the Department, on satisfaction of the Cadre Controlling authority. Hut in, the 2001 Rules, restriction was placed through rule 5(3), on shifting of an Engineer from one wing to another wing of the Public Works Department. The restriction placed by the 2001 Rules, however, did not place any specific embargo on intra-wing transfers within the Mechanical Wing of the Public Works Department, which had B.E. degree holders of both Mechanical and Electrical Engineering. 26. Although no restriction on intra wing transfer within the Mechanical Wing is noticed under rule 5(3) of 2001 Rules, it would be appropriate to look at the other provisions in the enactment of the 2001 Rules to find out, whether the ambiguity seen in the rule 5(3) of the Rules, if allowed to remain as it is, would serve the objective of the new Rules being brought into force in the year 2001. The ratio of the following decisions of the Apex Court may be noticed while making the scrutiny of the 2001 Rules. In Utkal Contractors (supra) it has been laid down by the Apex Court that a statute is best understood if we know the reason for it and the reason for the statute is the safest guide to its interpretation. The ratio of the following decisions of the Apex Court may be noticed while making the scrutiny of the 2001 Rules. In Utkal Contractors (supra) it has been laid down by the Apex Court that a statute is best understood if we know the reason for it and the reason for the statute is the safest guide to its interpretation. In the instant case, the question that needs to be asked is if rule 5(3) of 2001 Rules is understood as it is, in isolation, without reference to other rules, whether it would truly reflect the reason for enactment of the new Rules in the year 2001 ? In Organo Chemical Industries (supra), the Supreme Court opined that the absence of guideline in the provisions and the consequential possibility of the authority "running berserk or acting hubristically" ought not to restrain the courts from examining searchingly the provisions and the enactment to discover "hidden injustice and marked mala fides". While noting the views of the Supreme Court in the above cases, this court must not be unmindful of the caution given by the Supreme Court in Carew & Co. (supra) where it is indicated by the Apex Court "that if the language of the statute does not admit of the construction sought, wishful thinking is no substitute and then not the court but the Legislature is to blame for enacting a damp squib statute". However it is also provided in Carew & Co. (supra) that when two interpretations arc feasible, that which advance the remedy and suppresses the evil, as the Legislature envisioned, must find favour with the court. In the context of the arguments advances, the answer of the court would largely depend on whether two interpretation are permissible with regard to the provisions of the Rules under examination. 27. What we find in the instant case is enactment of a new set of rules in the year 2001, to replace the earlier service Rules of the year 1995. The major change in the new enactment as it appears, is to stop engineers from one wing of the Public Works Department from moving into another wing of the PWD. For instance, engineers in Mechanical Wing are not permitted unlike under the 1995 Rules, to move to the civil wing or vice versa, irrespective of the engineering branch in which they have obtained their B.E. degrees. For instance, engineers in Mechanical Wing are not permitted unlike under the 1995 Rules, to move to the civil wing or vice versa, irrespective of the engineering branch in which they have obtained their B.E. degrees. The post with which we are concerned with in the present case, is the Grade-IV post of the Executive Engineer in the newly created Electrical division. According to views expressed by the Executive, through its communication dated 12.5.2000 (Annexure-E), it was intended that the new post be filled up by promotion of a Graduate Electrical Engineer. The question is whether a graduate mechanical engineer could also be promoted to the said post ? The first incumbent appointed to the newly created Electrical Division was an Electrical Engineer C. Lianlunga who was posted to the said post by order dated 10.11.2000. The view expressed by the MPSC in their communication dated 13.11.2003 has also to be noticed particularly in the context of the provisions of article 320(3.) of the Constitution of India. 28. In the perception of this court, the Apex Court's decision in Dr. Krishna Ch. Sahu (supra) and Mallikarjuna Rao (supra) cited on behalf of the respondents, can't certainly prevent a court to examine the purport, and meaning of the provisions of the Rules and to interpret it, having regard to the relevant circumstances. Naturally it would not be appropriate for a court to intrude into executive domain and prescribe qualification for appointment to a post as has been rightly held by the Supreme Court in T. Rangu Swamy (supra). Nor it would be permissible, as has been held in FCI v. Bhanu Lodh (supra), for this court to direct filling up of a post by the Government. However, the power of judicial review can certainly be exercised when a Government decision appear to suffer from the vice of arbitrariness. In a given case, if on examination of provision of a rule, it is found that an impermissible classification has been made, a court may, as has been held by the Supreme Court in paragraph 60 of D.S. Nakura (supra), read down the offending provision to make the provision constitutionally acceptable. 29. In a given case, if on examination of provision of a rule, it is found that an impermissible classification has been made, a court may, as has been held by the Supreme Court in paragraph 60 of D.S. Nakura (supra), read down the offending provision to make the provision constitutionally acceptable. 29. One of the important aspects which has been highlighted by the Apex Court in J.P. Bansal (supra) in paragraph 16 of the judgment, is that a construction of a statute which result in rejection of words has to be avoided, unless it is covered by the rule of exception including that of necessity. It can be noticed that in Column 10 of Appendix B in SI. No. 6 of the 2001 Rules, which provides for recruitment of engineering Grade-V in the Department, Degrees in concerned Engineering Brunch is specifically mentioned. Such Grade-V engineers, after completing 5 years in Grade-V become eligible for promotion to engineering Grade-IV, which is the post we are concerned with, in the present case. Accordingly if the interpretation sought to be given be the respondents is to be accepted, it would amount to ignoring the words used in Column 10 of the Appendix B of the rule, which specifically refer to a degree m the concerned engineering branch. These words in the Rules can't certainly be ignored and has to be given due consideration while interpreting the provisions of the Rules. 30. It would also be appropriate to note the Government reply dated 16.12.2003 sent in response to the MPSC's letter dated 13.11.2003, which is reproduced below. "The matter lender reference, from the PWD has been examined in the light of the Mizoram Engineering Service Rules, 2001, observations of the MPSC and the legal position prevailing. While the MPSC's observation should be taken care of in near future, the present vacancy having occurred under the scope of the existing MES Rules, has to be filled up in consonance with the provisions of the said Rules as prevailing at the time of occurrence of the vacancy, as the right once and already accrued in favour of the incumbents under the*existing Service Rules to be considered for promotion or appointment, cannot be taken away or defeated or undone by way of any amendment to the Service Rules, subsequent to the occurrence of such vacancy. It is left to the Department, concerned when and how to take care of the MPSC's observations in near future so that the Government policy can be suitably moudled in consultation with the service associations or the Joint Cadre Authority". From the aforesaid response as quoted above, it can be clearly seen that the Government had not rejected the view of the MPSC expressed on 13.11.2003. In stead the Government had indicated that the MPSC's view would be taken care of in near future and the Government policy can be suitably moulded to take care of the observations made by the MPSC. Thus the Government does not expressly disagree with the view indicated by the MPSC on 13.11.2003 but in stead suggested that the said view would be taken care of in near future and not in case of the impugned promotion exercised as the vacancy has already occurred giving some right in favour of the incumbent for consideration for promotion, without amendment of the 2001 Rules. 31. It is accepted by the learned counsel for the petitioner as well as by the learned Addl. A.G. that the major reason for replacing the 1995 Rules with the 2001 Rules was to prevent transfer of engineers from one cadre to another and one wing to another of the department, as is indicated in rule 5(3) of the 2001 Rules. However, the difference between the learned counsels appear to be on whether the Government intended to place a ban on infra wing transfer of the Mechanical Engineers to Electrical Engineers posts and vice-versa. 32. If one has to interpret the provisions of rule 5(3) by giving due importance to the object of the enactment, one cannot read the provisions of the rule 5(3) in isolation. After all, rule 5(3) was incorporated in the 2001 Rules to ensure that engineers from one Cadre shall not be appointed to another Cadre and also to ensure that member of one Wing will have no right for appointment or promotion to any other Wing of the department. After all, rule 5(3) was incorporated in the 2001 Rules to ensure that engineers from one Cadre shall not be appointed to another Cadre and also to ensure that member of one Wing will have no right for appointment or promotion to any other Wing of the department. Although no specific mention of a restriction of infra-wing transfer has been indicated in rule 5(3), in the context of the remedy that was sought to be achieved by incorporation of rule 5(3) in the 2001 Rules, it appears to me that the rule makers overlooked the fact that within the Mechanical Wing, there are engineers of electrical as well as mechanical branch and that posts have also been earmarked in the cadre strength of the Mechanical Wing, on the basis of separate engineering disciplines. 33. From the reply of the Government dated 16.12.2003 in response to the MPSC communication dated 13.11.2003 it appears that the Government did not out right reject the view of the MPSC. This view has to be given its due respect in the context of the requirements of article 320(3) of the Constitution of India. One cannot also overlooked the cadre structure of the Mechanical Wing which indicates that posts have been earmarked separately for the Mechanical Engineers and for Electrical Engineers. Obviously such separation has been done, keeping in mind the specialisation needs of the post. Under such circumstances, it would be difficult to accept the contention advanced on behalf of the respondents that a Mechanical Engineer would be equally competent and eligible like an Electrical Engineer, for being promoted to the post earmarked for an Electrical Engineer. Such a view would obviously be contrary to what is contained in Column 10 of SI. No. 6 of Appendix B to the 2001 Rules where qualification for appointment in the feeder post of engineering Grade V specifics the requirement of having a degree in concerned engineering branch. 34. In view of the above discussions, I am of the view that if we interpret rule 5(3) of the 2001 Rules to mean that intra-wing transfer of Mechanical Engineer to posts earmarked for Electrical Engineer is permissible, the same would clearly amount to a situation where un-equals would be treated as equal. 34. In view of the above discussions, I am of the view that if we interpret rule 5(3) of the 2001 Rules to mean that intra-wing transfer of Mechanical Engineer to posts earmarked for Electrical Engineer is permissible, the same would clearly amount to a situation where un-equals would be treated as equal. This would be clearly violative of the fundamental provisions of our Constitution in as much as engineers belonging to two separate classes, on the basis of the engineering degrees obtained in different engineering disciplines, would be treated as people belonging to the same class. Such unnatural classification is obviously prohibited by our Constitution. 35. That apart, the executive intent also does not support the view for interpretation and understanding of the 2001 Rules in the manner asked to be understood, on behalf of the respondents. 36. The provisions of rule 5(3) has to be interpreted by giving due regard to the other provisions contained in the Rules, wherein distinct class differences are indicated on the basis of the engineering disciplines in which a B.E. degree has been secured and such differences contained in the Rules can't be overlooked. Under the circumstances the provisions of rule 5(3) of the 2001 Rules, if interpreted in the manner as submitted on behalf of the respondents, would clearly be ultra vires of the Constitution. 37. On the other hand, if the above Rules are interpreted to mean that rule 5(3) also places restrictions on intra wing pos|ing of electrical and mechanical engineers, the same could be saved from declaration of constitutional in validity of the Rules in question. 38. Thus, having regard to the discussions made, I am of the view that it would not be justified to declare rule 5(3) to be ultra vires as in that case, the very objective of bringing about the 2001 Rules, namely placing restriction on movement of engineers from cadre to cadre and wing to wing would he defeated. Therefore it would be more appropriate to read down the provisions of rule 5(3) to mean that there is a restriction placed by rule 5(3) of the 2001 Rules on posting of Mechanical Engineers to posts earmarked for Electrical Engineers and vice versa. Naturally, such restrictions would not apply to posts within the Mechanical Wing of the department, which are not specifically earmarked for a particular discipline such as the post of Superintending Engineer. 39. Naturally, such restrictions would not apply to posts within the Mechanical Wing of the department, which are not specifically earmarked for a particular discipline such as the post of Superintending Engineer. 39. The writ petition is accordingly allowed in terms of the directions and observations made herein above.