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Gauhati High Court · body

2009 DIGILAW 604 (GAU)

Arijit Kr. Endow v. State of Assam

2009-08-25

AMITAVA ROY

body2009
JUDGMENT Amitava Roy, J. 1. The assailments in successive phases proclaim the petitioner's determined bid for being adjudged as an Additional Chief Engineer, of the Water Resources Department, Government of Assam, eligible for being considered for promotion to the existing post of Chief Engineer thereof in terms of the Assam Engineering (Flood Control Department) Service Rules, 1981 (as amended) ('the Rules'). Whereas the challenge laid in the first petition is against the notification dated 6.9.2008, circulating the provisional gradation list of Additional Chief Engineers of the Department sans his name, the subject matter of impugnment in the latter is the select list dated 20.7.2009 of Officers recommended for promotion to the post of Chief Engineer as well as the notification of the even date promoting the respondent No. 3 thereto. 2. I have heard Mr. S. Shyam, learned Counsel for the petitioner assisted by Mr. P.N. Goswami, advocate, Mr. A.C. Buragohain, learned Additional Advocate General, Assam, for the official respondents, Mr. N. Dutta, senior advocate for the respondent No. 4 and Mr. D.K. Das, advocate for the respondent No. 3. 3. The contentious pleadings have to be traversed to cull out the relevant facts in their bare essentials. The petitioner claims to have joined the Flood Control Department of the State as Assistant Engineer on 6.12.1971 to be promoted as the Executive Engineer (Mechanical) on 14.2.1985. By notification dated 23.9.2003, he was further promoted to the next higher post of Superintending Engineer (Mechanical) and was posted in the said capacity at the Guwahati Mechanical Water Resource Circle. Meanwhile, the Flood Control Department had been christened as Water Resources Department (hereafter referred to as the Department). The post of Superintendent Engineer, Guwahati Mechanical Water Resource Circle was vide letter dated 16.5.2007 of the Deputy Secretary (I), Water Resources Department, upgraded to that of the Additional Chief Engineer, Mechanical Zone. 4. A selection was held thereafter on 7.6.2007 and the petitioner having been placed at Sl. No. 1 of the list of the recommended candidates, he, by notification dated 11.6.2007 of the Secretary to the Government of Assam, Water Resources Department, was promoted to the post of Additional Chief Engineer, Mechanical Zone. 4. A selection was held thereafter on 7.6.2007 and the petitioner having been placed at Sl. No. 1 of the list of the recommended candidates, he, by notification dated 11.6.2007 of the Secretary to the Government of Assam, Water Resources Department, was promoted to the post of Additional Chief Engineer, Mechanical Zone. While he, as the senior most Additional Chief Engineer of the Department, nursed a legitimate expectation that his name would be included in the gradation list of such officers and that he would be accordingly considered for promotion to the next higher post of Chief Engineer in terms of the Rules, to his shock and dismay, the impugned notification dated 6.9.2008 was published circulating the provisional gradation list of the Additional Chief Engineers of the Department in which his name did not figure. According to the petitioner, beyond the cadre of Superintending Engineer, the categorisation of the posts based on discipline, i.e., Civil, Mechanical and Electrical was not envisaged in the Rules and that, therefore, the said provisional gradation list which per se included only the Additional Chief Engineer of the Civil Branch was incongruent therewith. 5. Being aggrieved, the petitioner, therefore, submitted a representation on 18.12.2008 before the Secretary to the Government of Assam, Water Resources Department, for necessary remedial steps so as to assure the consideration of his case for the post of Chief Engineer in due course. The aforementioned authority in his prompt response communicated by the letter dated 12.1.2009 required the Chief Engineer of the Department to submit a proposal for the post of Chief Engineer (Mechanical) as in his contemplation the Rules did not provide for any scope for consideration of his request for promotion as made. The petitioner's next representation in reiteration of his earlier pleas not having evoked any response, he instituted WP(C) 332/2009. 6. This Court while issuing rule on 4.2.2009, being apprised of the fact that a selection for promotion to the post of Chief Engineer was scheduled to be conducted shortly, by the said order directed the respondents to consider the case of the petitioner as well on the assumption that he was eligible and to keep the results of the selection in a Sealed cover to await of further orders to follow. On an interim application filed thereafter by the respondent No. 3 seeking vacation and/or modification of the interim direction as above, the sealed cover recommendation of the Selection Board was requisitioned by the Court and on a perusal thereof by order dated 7.4.2009, the departmental authorities were allowed to act on the recommendation of the Selection Board/Departmental Promotion Committee for promotion to the post of Chief Engineer of the Department. As the petitioner came to learn that the above notwithstanding, the departmental authorities were contemplating to publish a select list of candidates belonging to Civil Branch only, he submitted a representation on 9.4.2009 before the Secretary of the Department contending, inter alia, that the step proposed would be opposed to the letter and spirit of the order dated 7.4.2009 of this Court. 7. By notification dated 27.4.2009, a select list of the candidates recommended for promotion to the rank of Chief Engineer of the Department was published in the issue of the same date of the Assam Gazette, Extraordinary. The select list of six candidates was confined to the incumbents of the Civil Branch of the Department and did not contain the name of the petitioner. The respondent Nos. 3 and 4, however, were placed at Sl. Nos. 1 and 2 respectively. By a separate notification of the even date, the respondent No. 3 was promoted to the post of Chief Engineer (Quality Control) of the Department. In WP(C) No. 1951/2009, as alluded hereinabove, the petitioner seeks to invalidate the aforementioned select list and promotion of the respondent No. 3. 8. The State respondents in their affidavit affirmed by the Secretary of the Department have asserted that the upgradation of the post of Superintending Engineer, Guwahati Mechanical Water Resources Circle, hitherto held by the petitioner to that of Additional Chief Engineer, Mechanical Zone, Water Resources Department, under Rule 3(4) of the Rules and that a selection was held from amongst the existing two Superintending Engineers of the Mechanical Branch only and on the basis thereof, the petitioner was promoted as Additional Chief Engineer, Mechanical Zone, Water Resources Department, Guwahati. According to them, though at the relevant point of time, there were 20 incumbents in the post of Superintending Engineer in the Civil Branch of which some were senior to Shri Nabin Ch. According to them, though at the relevant point of time, there were 20 incumbents in the post of Superintending Engineer in the Civil Branch of which some were senior to Shri Nabin Ch. Sarma, Superintending Engineer (M), whose case was considered along with the petitioner for the post of Additional Chief Engineer (M), they were left out of consideration in the said selection process as the post was exclusively meant for the mechanical cadre. While dismissing the petitioner's assertion of merger of all disciplines above the rank of Superintending Engineer, the answering respondents have contended that presently there are two separate categories of Additional Chief Engineer, i.e., Additional Chief Engineer (Civil) and Additional Chief Engineer (Mechanical) in the department and that promotion of Additional Chief Engineer (Mechanical) to the post of Chief Engineer would be in violation of Rule 3(4) of the Rules. They have, therefore, justified the non-inclusion of the name of the petitioner in the gradation list of Additional Chief Engineer (Civil). They have, however, stated that as there is only one post of Additional Chief Engineer in the Mechanical Branch, separate gradation list therefore was not contemplated. They have maintained that the post of Chief Engineer (Quality Control) does not require any expertise of mechanical engineering as all duties and works relatable thereto are of civil nature. The answering respondents have reiterated in clear terms that the post of Additional Chief Engineer of the Mechanical Cadre, thus, could not be considered to be a feeder post for promotion to the post of Chief Engineer of the Department. The petitioner's claim of being the senior most Additional Chief Engineer has also been refuted. The respondents, however, have referred to an ongoing process to examine the possibility of creating a post of Chief Engineer (M) in the department. 9. In his counter, the respondent No. 3 while generally endorsing the stand taken by the official respondents, has insisted that the impugned gradation list dated 6.9.2008 has been drawn up in conformity with Rule 3(4) of the Rules. 9. In his counter, the respondent No. 3 while generally endorsing the stand taken by the official respondents, has insisted that the impugned gradation list dated 6.9.2008 has been drawn up in conformity with Rule 3(4) of the Rules. While contending that in terms of the Rules, posts in Cadre (i), (ii) and (iii) of Class I (Senior Grade) are borne in the civil branch of the Department unless specifically created for any other Branch as may be considered necessary, the petitioner's claim for consideration of his case for the post of Chief Engineer in the backdrop of his promotion as Additional Chief Engineer (Mechanical) has been repudiated as untenable. He has claimed himself to be the seniormost incumbent in the cadre of Additional Chief Engineer (Civil) and, thus, eligible to be promoted as the Chief Engineer (QC) as per the Rules. 10. The averments in the affidavit of the respondent No. 4 are also in the same lines and, therefore, dilation thereon is considered inessential. He, however, claimed to be the seniormost Additional Chief Engineer, Upper Assam Zone, Water Resource Department, and, thus, eligible to be considered for promotion to the rank of Chief Engineer in the Department. 11. The other respondents have not entered appearance. In a separate affidavit, the respondent No. 1 has set out the criteria applied to asses the suitability of the eligible candidates for promotion to the post of Chief Engineer. The assertions in the affidavit in reply filed by the petitioner are in essence reaffirmation of those in the writ petitions. 12. Mr. Shyam has persuasively urged that the classification on the basis of disciplines being only up to the cadre of Superintending Engineer, as is evidenced by the Rules, no further distinction founded on the said norm is envisaged in the higher echelons and that, therefore, all Additional Chief Engineers irrespective of their erstwhile categorisation were eligible to be considered for promotion to the post of Chief Engineer in the Department. While underlining that though in the primordial days of the department then nomenclatured as Flood Control Department, civil works formed the gamut of the organisational callings, with the increase in the variety and range of works pertaining to mechanical engineering, the post of Superintending Engineer (Mechanical) was upgraded to that of Additional Chief Engineer (Mechanical) to which the petitioner on the assessment of his suitability and merit was promoted. The learned Counsel in this background has maintained that as in terms of Rule 3(2), on the creation of the post of Additional Chief Engineer it was duly integrated in the service as one equivalent to that of the existing Additional Chief Engineers, the purported classification endeavoured by the respondents is clearly opposed to the letter and spirit of the Rules. Mr. Shyam has insisted that having regard to the assimilation of the post of Additional Chief Engineer (M) in service with consequential status equivalent to that of the other Additional Chief Engineers, Rule 3(4), even if conceded some relevance in the context of the administrative configuration can by no means annihilate the right of the petitioner for being considered for promotion to the post of Chief Engineer along with other Additional Chief Engineers of the Department in accordance with the Rules. Referring to Rules 12 and 13 of the Rules, the learned Counsel has emphatically argued that the impugned gradation list of Additional Chief Engineers to the exclusion of the petitioner and the repudiation of his eligibility for the next higher post of Chief Engineer is clearly violative of his constitutional right in that regard as well as his rightful claim therefore under the Rules. 13. Without prejudice to the above, the learned Counsel has contended that Rule 3(4) in the present form besides being vague and inarticulate, is outdated in the present context and, therefore, needs to be read down to be in alignment with the petitioner's constitutional as well as legal right for being considered for promotion to the post of Chief Engineer. In any view of the matter, the learned Counsel has argued that the said provision of the Rules ought to be construed in favour of such constitutional guarantee for it to be valid. Pointing out that the department presently is equipped with two posts of Chief Engineer, i.e., Chief Engineer (Water Resources) as the Head of the Department and Chief Engineer (Quality Control) ['the C.E. (QC)'], Mr. Shyam has sought to impress upon this Court that the post of Chief Engineer (QC) being entrusted with the mechanical works, the petitioner's claim for being considered for promotion in any view of the matter, cannot be denied vis-a-vis the same. Shyam has sought to impress upon this Court that the post of Chief Engineer (QC) being entrusted with the mechanical works, the petitioner's claim for being considered for promotion in any view of the matter, cannot be denied vis-a-vis the same. The learned Counsel pleaded that though represented by the respondents that the petitioner had been considered for promotion to the post of Chief Engineer as required by this Court neither his name figures in the select list of the recommended candidates nor his inter se position on merit and suitability on such assessment has been disclosed by the respondents. Mr. Shyam has, therefore, imputed exclusion of the petitioner from consideration of his case for promotion to the post of Chief Engineer contending that the act impugned is patently arbitrary, discriminatory and unconstitutional and is liable to be adjudged as such. He has, thus, insisted for a direction to the respondents to re-enact the process by annulling the impugned promotion. To reinforce his arguments, Mr. Shyam placed reliance on the following decisions of the Apex Court as well as of this Court Sunil Batra v. Delhi Administration and Ors. (1978) 4 SCC 494 ; Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors. 1991 Supp (1) SCC 600; Chandigarh Administration v. K.K. Jerath, (1994) Supp 3 SCC 582; S.C. Pandey v. State of M.P. and Ors. (2004) 13 SCC 604 ; Nandlall and Sons Tea Industries (P.) Ltd. and Anr. v. State of Assam and Ors. 2007 (3) GLT 260. 14. The learned Additional Advocate General, Assam, has argued that a plain reading of the Rules demonstrates that the petitioner as the Additional Chief Engineer (Mechanical) is not eligible to be considered for promotion to the next higher post of Chief Engineer in the Departmental and, therefore, his pleas to the contrary Rules are misconceived. With reference to the official records, Mr. Buragohain has urged that though his case was duly considered as directed by this Court, his promotion as Chief Engineer of the Department being impermissible under the Rules, his name did not figure in the impugned select list and the respondent No. 3 having been adjudged to be best suitable for the post, was accordingly promoted thereto. 15. Mr. Buragohain has urged that though his case was duly considered as directed by this Court, his promotion as Chief Engineer of the Department being impermissible under the Rules, his name did not figure in the impugned select list and the respondent No. 3 having been adjudged to be best suitable for the post, was accordingly promoted thereto. 15. Mr. Dutta, learned Counsel for the respondent No. 4 has argued on the basis of the pleadings that having regard to the sequence of events involving the upgradation of the post of Superintending Engineer (Mechanical) to that of the Additional Chief Engineer (Mechanical) and the promotion of the petitioner thereto, none of his grouses in the context of the Rules is entertainable in law. Refuting the assertion that the post of CE (QC) deals in works relating to mechanical cadre, the learned senior counsel with reference to the documents appended to the writ petition has maintained that the existing post of Chief Engineer (QC) has been created on the upgradation of the post of Additional Chief Engineer (QC) and has no relation what so ever with the mechanical cadre. Contending that the posts of CE (WR) and CE (QC) are equivalent, Mr. Dutta has emphasised that the very fact that for the purpose of promotion to the sole post of Additional CE (M), the candidature of the petitioner and the other Superintending Engineer (M) to the exclusion of many senior incumbents in the civil branch was considered is a clear indicator that the said post of Additional Chief Engineer (M) was meant only for the mechanical wing of the department and was not open for the other branches. The plea of homology between Additional CE(M) and Additional CE(QC) is, thus, frivolous, he urged. 16. Endorsing the validity of the impugned gradation list, the learned senior counsel maintained that as the petitioner was the only Additional Chief Engineer in the mechanical cadre no separate seniority list of the incumbents of that post was necessary. Adverting to the Rules, Mr. The plea of homology between Additional CE(M) and Additional CE(QC) is, thus, frivolous, he urged. 16. Endorsing the validity of the impugned gradation list, the learned senior counsel maintained that as the petitioner was the only Additional Chief Engineer in the mechanical cadre no separate seniority list of the incumbents of that post was necessary. Adverting to the Rules, Mr. Dutta urged that in terms of Rule 3(4), in absence of any post of Chief Engineer (M), the petitioner was not eligible to be considered to be promoted to that rank and that creation of the post of Additional Chief Engineer (M) by upgradation of the post of Superintending Engineer (M) per se would not facilitate his transition therefrom to the existing posts of Chief Engineer in the Department on promotion. The learned senior counsel highlighted that the cadres of engineers in each branch of the department are as a mandate of the Rules distinct and separate from each other and unless a conscious and an imperative decision of the rule making authority is discernible to the contrary vis-a-vis any particular cadre, no integration thereof with the other can be envisaged. As Rule 3(4) is on the face of it in the nature of an eligibility clause, the petitioner having been disqualified thereby cannot legitimately complain of any contravention of his constitutional or legal rights, he pleaded. According to Mr. Dutta, having regard to the scheme of the Rules read with the schedules thereto, it is apparent that the petitioner as a member of the mechanical wing of the department is not eligible to be considered for promotion to the existing post of Chief Engineer. Referring to the letter dated 12.1.2009 of the Secretary to the Government of Assam, Water Resources Department, Guwahati, initiating steps for creation of a post of CE(M) in the Department, Mr. Dutta has submitted that this move is, however, in alignment to the true purport of Rule 3(4) of the Rules and only reinforces the stand of the respondents. That the omission of the petitioner to question the validity of Rule 3(4) disentitles him to plead unconstitutionality, arbitrariness and discrimination qua the impugned action has been urged as well. The authorities cited at the Bar have been distinguished contending that those had been rendered in different factual context. That the omission of the petitioner to question the validity of Rule 3(4) disentitles him to plead unconstitutionality, arbitrariness and discrimination qua the impugned action has been urged as well. The authorities cited at the Bar have been distinguished contending that those had been rendered in different factual context. Instead reliance has been placed on a decision of this Court in Progoti Bora v. State of Assam and Ors. 2003 (1) GLT 472, asserting that the Rules involved therein presented identical provisions in which the plea on the basis of cadre vis-a-vis promotion had been upheld. 17. Mr. Das, learned Counsel for the respondent No. 3 while apprising this Court that he (respondent No. 3) is presently holding the post of CE (QC), has adopted the arguments made on behalf of the respondent No. 4. 18. In reply Mr. Shyam emphasized that the post of Additional Chief Engineer (M) having been created in exercise of power under Rule 3(2), no further inhibition posed by Rule 3(4) is comprehensible in the matter of promotion to the next higher post of Chief Engineer. Reiterating that the schedules to the Rules are outdated, the learned Counsel has insisted that the same per se do not evince that the post of Additional CE(M) constitutes a separate cadre. He further contended that challenge to the vires of Rule 3(4) was inessential in the facts and circumstances of the case and that a harmonious construction thereof with Rule 3(2) is called for to secure the petitioner's constitutional right to be considered for promotion. He distinguished the decision in Progoti Bora (supra), contending that the Rules involved therein having clearly segregated, the cadres up to the rank of Additional Chief Engineers, the challenge based thereon to the process to the said post had been sustained. This decision, according to Mr. Shyam, in the factual scenario in hand is not of any relevance. 19. The contentious pleadings and the arguments commensurate therewith have been cautiously analysed. The Rules having occupied the centre stage of the debate, deserves immediate reference for the essential insight into the essence of the simmering controversy. The Rules are the yield of the powers conferred by Article 309 of the Constitution of India to regulate the recruitment and conditions of service of persons appointed to Assam Engineering (Flood Control Department) Service ('the Service'). The Rules are the yield of the powers conferred by Article 309 of the Constitution of India to regulate the recruitment and conditions of service of persons appointed to Assam Engineering (Flood Control Department) Service ('the Service'). As an upshot of the constitutional empowerment, this legislative instrument wields a presiding profile and is of authoritative bearing on all concerned. The provisions thereof prescribing the norms for regulating the recruitment and conditions of service, as the constitutional provision enjoins, would enjoy a primacy in such matters till an Act of the appropriate Legislature is enacted. The Rules, which are applicable to the members of the aforenamed Service, in Rule 3, design the class, cadre, branch and status thereof. The use of the word "branch" is of added significance in the present factual conspectus. The service, as the said provision predicates, comprises inter alia of Class-I (Senior Grade), which consists of the following: (i) Secretary to the Government (ii) Chief Engineer (iii) Additional Chief Engineer and (iv) Superintending Engineer. Rule 3(2) provides that the service may also include: (a) any post equivalent to a post in any of the cadres mentioned in Sub-rule (1); and (b) any cadre or post subsequently laid down by Government to be included in a cadre or service. Sub-rules (3) and (4) for the purpose of immediate reference are extracted herein below: (3) The cadres of Superintending Engineer, Executive Engineers, Sub-Divisional Officers and Assistant Engineers may have distinct branches, namely, Civil, Mechanical and Electrical and each branch may be deemed to be a separate cadre. (4) The posts in cadres (i), (ii) and (iii) of Class-I (Senior Grade) mentioned in Sub-rule (1) shall be borne in the Civil branch unless specifically created for any other branch, as may be considered necessary. 20. The strength of the service is provided by Rule 4 to be as determined by the Governor from time-to-time, Schedule-I of the Rules provides the same at the date of commencement thereof. The method of recruitment outlined in Rule 5 amongst others mandate that induction to Class-I and Class-I (Senior Grade) shall be made by promotion only in accordance with Rules 12 and (sic) 13. The method of recruitment outlined in Rule 5 amongst others mandate that induction to Class-I and Class-I (Senior Grade) shall be made by promotion only in accordance with Rules 12 and (sic) 13. Promotions under Rule 12 would be on the recommendation of the related Selection Board concurred upon by the appointing authority subject to suitability of the candidates concerned possessed of such qualification and experience as may be prescribed by the Governor from time to time, the same, as stipulated at the time of commencement of the Rules being set out in Schedule III thereof. Rule 12(2), however, provides in clear terms that promotion to the post of Chief Engineer has to be from that of Additional Chief Engineer, the criteria therefore as per the latest amendment of the Rules vide Assam Engineering (Flood Control Department) (Amendment) Rules, 1990 being merit with due regard to seniority. 21. Having regard to the framework of the present adjudication, it is unnecessary to deal with the procedure for promotion in details as narrated in Rule 13. The provisions pertaining to seniority, probation and confirmation unfailingly refer to the cadre to which the concerned member of the service belongs. Rule 24 obligates the authorities concerned to prepare and publish every year a gradation list containing the names of all members of the service cadre wise in order of seniority and such other particulars such as date of birth, date of appointment etc. In the matters of employment of the members of service as well, in terms of Rule 26 they would be detailed in such a manner as the appointing authority may decide subject to the condition that a member belonging to a particular branch of the cadre shall be employed within the same branch. 22. Schedule-I of the Rules depicts the sanctioned strength and scales of pay of the different categories of posts mentioned therein. It demonstrates two broad branches, i.e., civil and the mechanical. Though the nomenclature 'civil' does not appear in Schedule-I in clear terms, a cursory reference to Rule 3(4) proclaims that the posts at Sl. No. 1 to 8 therein (Schedule-I) are lodged in that branch of the service. It has been submitted at the Bar that there is yet no Electrical branch of the Department. 23. Though the nomenclature 'civil' does not appear in Schedule-I in clear terms, a cursory reference to Rule 3(4) proclaims that the posts at Sl. No. 1 to 8 therein (Schedule-I) are lodged in that branch of the service. It has been submitted at the Bar that there is yet no Electrical branch of the Department. 23. Schedule-II prescribes the academic qualification for direct recruitment to the cadre of Assistant Engineer and equivalent posts in the Service and in clear terms ordains that therefore one must posses a decree in respective branch of Engineering namely, Civil, Mechanical and Electrical of an Indian or Foreign University recognised by the Government. The academic qualification in the alternative appearing in the said Schedule being not of any significance for the case in hand, is not being dilated upon. An amendment to Rule 3(2) as quoted hereinabove effected in 1984 only substitutes the words Sub-Divisional Officers by "Assistant Executive Engineer". The contents otherwise have been retained as in the original Rules. 24. A Scrutiny of the Rules presents the omnipresent concept of cadre as a distinct and independent constituent of service in its overall texture. Rule 3(3) makes it obvious that cadres of Superintending Engineer, Executive Engineers, Assistant Executive Engineers and Assistant Engineers would have distinct branches namely civil, mechanical and electrical and that each branch would be deemed to be a separate cadre. Significantly though the cadre of Superintending Engineer is located in Class-I (Senior Grade), it would contemplate civil, mechanical and electrical branches therein so much so that each branch would be deemed to be a separate cadre. It is, thus, within the cadre of Superintending Engineer which by itself is a distinct unit of service that each of the branches civil, mechanical and electrical would form a separate cadre of its own. The incumbents of these disciplines, thus, even if belong to a common cadre of Superintending Engineer they would branch wise constitute a separate cadre. Noticeably though the posts higher in rank than that of the superintending Engineer, do not find mention in Rule 3(3), Rule 3(4) appears to be determinative in this regard. It postulates that posts in Cadres (i), (ii) and (iii) of Class-I (Senior Grade), i.e., Secretary to the Government, Chief Engineer and Additional Chief Engineer respectively, shall be borne in the civil branch unless specifically created for any other branch as may be considered necessary. It postulates that posts in Cadres (i), (ii) and (iii) of Class-I (Senior Grade), i.e., Secretary to the Government, Chief Engineer and Additional Chief Engineer respectively, shall be borne in the civil branch unless specifically created for any other branch as may be considered necessary. The edict of the rule is to identify the aforementioned posts to be borne in the civil branch though the prerogative to create one or more of these for any other branch in case of necessity is left with the rule making authority. Axiomatically, therefore, the posts enumerated in the cadres (i), (ii) and (iii) (Senior Grade) at the time of the framing of the Rules were borne consciously in the civil branch and in absence of creation of any one or more of such posts in any other branch, the same (existing at the time of framing of the Rules) cannot be per se be associated with any other branch contemplated thereby, i.e., mechanical and electrical. Rule 3(2) which envisages that the service may also include any post equivalent to a post in any of the cadres mentioned in Rule 3(i) and any cadre or post subsequently laid down by the Government ipso facto does not efface the branch wise frontiers mandated by Rule 3(3) and 3(4) of the Rules. Though Rule 3(3) and 3(4) visibly operate in independent and different fields, Rule 3(4), having regard to the scheme of Rule 3 has been endowed with an overriding effect with the decisive sanction. In other words, as in the instant case though a post of Additional Chief Engineer (M) has been created on upgradation of that of the Superintending Engineer (M) enumerated in cadre (iii) of Class-I (Senior Grade), the incumbent thereof does not automatically become eligible to be considered for promotion to the existing posts of Chief Engineer (W.R.) and C.E. (Q.C.), in absence of any post of Chief Engineer created for the mechanical branch being impelled by administrative necessity. 25. Rule 3, which presents the inviolable segments of the hierarchical configuration of the service, has to be construed as a composite whole so as to strike a harmonious alignment with the remaining provisions of the Rules. 25. Rule 3, which presents the inviolable segments of the hierarchical configuration of the service, has to be construed as a composite whole so as to strike a harmonious alignment with the remaining provisions of the Rules. As the theme of a cadre as a distinct unit of service registers an all pervading presence in the Rules, the proposition of synthesis of posts beyond that of the Superintending Engineer irrespective of the branches contemplated by the Rules in the lower rungs would render Rule 3(4) wholly redundant and wreck the basal attributes thereof. Rule 3(3) which ordains branches namely civil, mechanical and electrical in each cadre of posts mentioned therein and deemed to be a separate cadre, when read in conjunction with Rule 3(4) makes the creation of posts in cadres (i), (ii) and (iii) of Class (Senior Grade) for branches other than civil indispensable to permit advancement of the incumbents of a mechanical and electrical disciplines to higher posts. 26. Schedule-I of the Rules though apparently out of tune with the march of events, however, proclaims the branch wise segregation of the cadres and posts and does not present any inference of merger of cadres irrespective of the branches in the ranks above that of the Superintending Engineer. The birth mark at the entry as the academic qualification for direct recruitment as prescribed by Schedule-II of the Rules accords, remains engraved so much so that elevation to the higher cadres is not only insulated till the rank of Superintending Engineer but also beyond. With the present state of the Rules, an Additional Chief Engineer (M) in absence of any post of Chief Engineer for the Mechanical Branch cannot vie for the existing post of Chief Engineer (W.R.) and C.E. (W.C.) as those belong to the civil branch. The matters in record are inadequate to sustain the assertion that the office of the CE (QC) is entrusted and/or is required to look after and administer the works relating to the mechanical wing of the department. 27. The legislative intendment evinced by the Rules, as would be amply demonstrated by the provisions thereof, pertaining to all aspects of recruitment and conditions of service of a member thereof namely probation, seniority, promotion etc., unequivocally maintain branch wise cadres even beyond the post of Superintending Engineer. 27. The legislative intendment evinced by the Rules, as would be amply demonstrated by the provisions thereof, pertaining to all aspects of recruitment and conditions of service of a member thereof namely probation, seniority, promotion etc., unequivocally maintain branch wise cadres even beyond the post of Superintending Engineer. The language employed in the Rules more particularly in Rule 3 thereof admits of no ambivalence or hypothesis. Having regard to the organisational model based on administrative exigencies, the plea of absurd results, if Rule 3(4) is conceded a primacy, does not commend for acceptance. With the preponderant concept of a cadre and branch ingrained in it as a distinctly separate and independent unit of service, the petitioner interpretation's of Rule 3(4) is apparently a truncated comprehension thereof. A legislative predication of cadre insulation through the ranks debarring inter-compartmental transition being visibly discernible, any endeavour to read down Rule 3(4) to recognise the petitioner's right to be considered for promotion would tantamount to doing violence to the very essence of the Rules. This plea, therefore, fails. 28. Apropos, the upgradation of the post of Superintending Engineer (M) to that of Additional Chief Engineer (M) and the promotion of the petitioner thereto, it is a matter of record that in the said process, the cases only of the petitioner and one Shri Nabin Ch. Sharma the then Superintending Engineer in the Mechanical branch were considered and that the other Superintending Engineers of the civil branch many of whom were senior to the latter excluded from the exercise. The factum of creation of the post of Additional Chief Engineer (M) not only seems to be congruent with the import of Rule 3(4) noticed hereinabove but substantiates as well the proposition that for further elevation of the incumbent thereof, a post pertaining to the same branch or discipline of works would be necessary to be created also in the rank of Chief Engineer. This, in the estimate of the court, is not in conflict with the domain of Rule 3(2). 29. In the teeth of the prescript of cadre distinction as the bifurcation grundnorm permeating the gossamer of the Rules, the plea of assimilation of the post of Additional Chief Engineer (M) with the cadre of Additional Chief Engineer in the Civil Branch in the service erasing the sectional imprint cannot be upheld. 29. In the teeth of the prescript of cadre distinction as the bifurcation grundnorm permeating the gossamer of the Rules, the plea of assimilation of the post of Additional Chief Engineer (M) with the cadre of Additional Chief Engineer in the Civil Branch in the service erasing the sectional imprint cannot be upheld. The post of Additional Chief Engineer (M) remains a separate cadre and any promotion therefrom to the post of Chief Engineer would be permissible only if a post of that rank in the mechanical branch is created to accommodate the concerned incumbent. 30. The cavil of denial of the petitioner's constitutional right to be considered for promotion needs attention in the above perspective. The Rules having been framed in exercise of power under the Article 309 of the Constitution of India, such a right evidently has to be subject to the provisions thereof delineating his conditions of service. His right to be considered for promotion being one recognised by the Rules has to be essentially subject to its enjoinments. The consistent stand of the official respondents as is gleanable from their pleadings as well as the documents available on record more particularly the impugned seniority list, select list and the promotion order of respondent No. 3 read with the letter dated 12.1.2009 initiating the steps for creation of a post of Chief Engineer (M) is in conformity with the legislative directives embodied in the Rules. No right incompatible therewith, therefore, ought to be recognised more so in absence of any challenge to the validity thereof. The language of the Rules being clear and unmistakable no other view in the face of the scheme thereof is perceptible although Schedule-I thereof has not been appropriately updated. This omission on the part of the State respondents, however, does not detract from the basic and foundational provisions thereof which reinforce the view taken. The impugned action of the respondents does not suffer from any misconstruction or infraction of the Rules. 31. The decision of the Apex Court in Sunil Batra (supra), is sought to be applied to convey that in the process of interpretation of a statute, if a construction thereof in one way renders it consistent with the Constitution of India and the other opposed thereto, the Court should lean in favour of the former. 32. 31. The decision of the Apex Court in Sunil Batra (supra), is sought to be applied to convey that in the process of interpretation of a statute, if a construction thereof in one way renders it consistent with the Constitution of India and the other opposed thereto, the Court should lean in favour of the former. 32. To the same effect is the rendering of the Apex Court in Delhi Transport Corporation (supra). Their Lordships, however, in this decision observed that where there is a clear, unambiguous and positive provision of a legislation, the court should be loathe to read it down. But where the statute is silent or not expressive or inarticulate, it must road down in the silence of the statute and in inarticulation of its provisions, the constitutional inhibitions and transmute the major inarticulate premise into a reality and read down the statute accordingly. That the function of the courts in the process of construction or interpretation of a legislation or a rule is to discover and translate the intention of the Legislature or the rule making body was reiterated. 33. This Court in Nandlall and Sons Tea Industries (P.) Ltd. (supra), had held that if the norm of plain and literal meaning of the words as a tool of interpretation has a potential of yielding absurd results or lead to unwarranted hardship and inconvenience, a construction to uphold the cause of substantial justice ought to be adopted. 34. These authorities in the spectrum of facts that obtains in the present case are of no avail to the petitioner having regard to the plain manifest and unequivocal language of the Rules which having regard to its schematic orientation do not lead to absurd results. 35. The decision of the Apex Court in Chandigarh Administration (supra), and S.C. Pandey (supra), also do not advance the case of the petitioner, the same having been rendered in the conspectus of service rules, which did not embody any cleavage on the basis of disciplines for promotion to the posts involved. On the other hand, the decision of this Court in Progoti Bora (supra), dealing with an identical issue vis-a-vis the Assam Engineering (Irrigation) Department Service Rules, 1978, which is substantially in pari materia with the Rules in hand endorses the determination made hereinabove. 36. On the other hand, the decision of this Court in Progoti Bora (supra), dealing with an identical issue vis-a-vis the Assam Engineering (Irrigation) Department Service Rules, 1978, which is substantially in pari materia with the Rules in hand endorses the determination made hereinabove. 36. The official records produced demonstrate that in pursuance of the order of this Court, the candidature of the petitioner had been considered along with other eligible officers for promotion to the post of Chief Engineer but in deference to the mandate of the Rules, no further action vis-a-vis him was taken. Noticeably this Court did not and rightfully so direct the petitioner's promotion to the post of Chief Engineer on the basis of his assessment in the said selection and, therefore, the question of non-compliance thereof by the respondents does not arise. The impugned select list and the promotion of the respondent No. 3, on a scrutiny of the selection proceedings in the perspective of the present assailments do not warrant any interference in this proceeding. 37. On a totality of the above considerations, therefore, this Court is of the considered opinion that the impugnments lack in merit and cannot be sustained. The petitions accordingly are dismissed. This notwithstanding it would be open for the official respondents to pursue the process for creation of the post of Chief Engineer (M) with necessary expedition so that, if permissible under the Rules, the petitioner who is due to retire shortly can be considered for his promotion thereto. No costs.