JUDGMENT : MICHAEL ZOTHANKHUMA, J. 1. Heard Mr. Joseph L. Renthlei, learned counsel for the petitioners. Also heard Mrs. Linda L. Fambawl, learned Addl. Advocate General for the State respondents. No one appears for the private respondents even though notice has been deemed to be served upon them. 2. These three writ petitions are being disposed of by a common Judgment and Order in view of the fact that the subject matter in issue is the same in all the three writ petitions, involving the same writ petitioners. 3. At the outset, Mr. Joseph L. Renthlei, learned counsel for the petitioners submits that the petitioner No. 2 has retired and as such, he does not wish to press the case of the petitioner No. 2. 4. The case of the petitioners is that in terms of the schedule to the 2013 Rules, there were 51 posts of Senior Grade (Civil) of the MES, who are Executive Engineers. As such, 41 posts of the Junior Grade were reserved for Graduate Engineers, while 10 posts were reserved for Non-Graduate Engineers. However, the Graduate Engineers have been promoted beyond their quota in the Senior Grade of the MES, thereby usurping the quota reserved for Non-Graduate Engineers. The petitioners have been promoted to the Senior Grade post (Non- Functional), which is not really a promotion, while the private respondents have been promoted to Senior Grade post (Functional). The case of the State respondents, on the other hand, is that promotion to the Senior Grade of the MES, whether functional or Non-Functional is the same. It is a promotion and they are intra-transferable posts. 5. That in terms of Rule 22(5) of the Mizoram Engineering Service Rules, 2013 (hereinafter referred to as the 2013 Rules), for consideration for promotion to the Senior Grade post of the Mizoram Engineering Service (hereinafter referred to as MES), required a member of the MES of the Junior Grade to have completed not less than 5 years continuous regular service in the Junior Grade and to have passed the Departmental Examination in Engineering & Accounts. 6. The proviso to Section 22(5) of the 2013 Rules stated that 80% of the posts shall be reserved for Graduate Engineers, while 20% would be reserved for Non-Graduate Engineers. 7. 6. The proviso to Section 22(5) of the 2013 Rules stated that 80% of the posts shall be reserved for Graduate Engineers, while 20% would be reserved for Non-Graduate Engineers. 7. The Second Proviso to Rule 22(5) of the 2013 Rules provided that the reservation would be continued after all the present incumbent Non-Graduate Engineers in the Junior Grade as on the date of commencement of the 2013 Rules were promoted, died, retired or had quitted the service by any means. 8. The petitioners herein are Non-Graduate Engineers i.e. Diploma holders, who had been promoted to the post of Junior Grade of the MES at the time of commencement of the 2013 Rules. 9. The 2013 Rules were thereafter amended vide the Mizoram Engineering Service (Amendment) Rules, 2017 (hereinafter referred to as Amended Rules) and Rule 22(5) of the 2013 Rules became Rule 22(5)(a) of the Amended Rules. Rule 22(5)(b) was also inserted, which stated that a member of the MES in the Junior Grade who had completed 10 years of continuous regular service in the Junior Grade and who had passed Departmental Examination in Engineering and Accounts, shall be eligible for Non-Functional promotion without linkage to vacancies by Selection Method. 10. The proviso to Rule 22(5) (b) of the Amended Rules provides that the provision for non-functional promotion shall be irrespective of the reservation system between direct recruits and promotes and shall be effective from the date of issue of Notification dated 04.08.2015. 11. The Second Proviso to Rule 22(5)(b) of the Amended Rules provided that the posting of Officers to the functional posts in Senior Grade of the service shall be done, as far as possible, on the basis of seniority or as determined by the Government from time to time. 12. The Schedule to the Amended Rules shows that posts of Senior Grade included Functional and Non-Functional posts. There were 51 Functional posts of Senior Grade (Functional), without giving the number of Non-Functional posts that was allocated to the Senior Grade cadre to the MES. 13. The petitioners’ counsel submits that subsequent to the above events, 14 posts of the Junior Grade of the MES were upgraded to Senior Grade, vide Notification dated 09.11.2020 issued by the Addl. Chief Secretary to the Government of Mizoram, PWD. 14. 13. The petitioners’ counsel submits that subsequent to the above events, 14 posts of the Junior Grade of the MES were upgraded to Senior Grade, vide Notification dated 09.11.2020 issued by the Addl. Chief Secretary to the Government of Mizoram, PWD. 14. The petitioners’ counsel submits that in view of there being an increase in the regular cadre of the Senior Grade of the MES to 65 in view of the above notification dated 09.11.2020, the quota reserved for the Non-Graduate Engineers would now rise from 10 to 13 and for Graduate Engineers, it would rise from 41 to 52. He submits that as the Graduate Engineers are occupying 56 regular cadre post of the Senior Grade of MES which is over and above their quota, the promotion of Graduate Engineers against the vacancy reserved for Non-Graduate Engineers should be set aside. 15. The petitioners’ counsel also submits that the petitioner Nos. 1, 3 and 4 were promoted to the Senior Grade of MES (Civil) (Non-Functional) vide Notification dated 22.12.2022 and the petitioner No. 5 was promoted to the post of Senior Grade of the MES under PWD Cadre (Civil) (Non-Functional) vide Notification dated 28.12.2022. He submits that as the Graduate Engineers cannot be promoted against the quota reserved for Non-Graduate Engineers, in terms of the proviso to Rule 22(5)(a) of the Amended Rules, the petitioners should be promoted to the regular cadre post of Senior Grade (Functional) of the MES. 16. He submits that this case is a covered case. In this regard, he has relied upon the Judgment and Order dated 05.02.2021 passed in WP (C) No. 63/2019 and the Order dated 18.02.2021 passed in WP (C) No. 63/2020. 17. He further submits that the Order dated 18.02.2021 passed in WP (C) No. 63/2020 has been complied with by the State respondents vide Notification dated 14.06.2021 passed by the Commissioner Secretary to the Government of Mizoram, P&E Department wherein it shows that the Non-Graduate Engineers were promoted from the Junior Grade of MES (Electric) to the Senior Grade of the (Electric) (Functional) under the P&E Department. 18. The petitioners’ counsel also submits that the Non-Functional promotion of a Junior Grade of the MES to the Senior Grade of the MES is not a real promotion as Notification No. A.32014-1/2015-PWD(E)/L Dated 01.12.2017 issued by the Principal Secretary to the Govt. of Mizoram, Public Works Department shows that one Pu. 18. The petitioners’ counsel also submits that the Non-Functional promotion of a Junior Grade of the MES to the Senior Grade of the MES is not a real promotion as Notification No. A.32014-1/2015-PWD(E)/L Dated 01.12.2017 issued by the Principal Secretary to the Govt. of Mizoram, Public Works Department shows that one Pu. F. Lalramenga, Sr. SDO (Civil)(Non-Graduate) has been promoted to the Senior Grade of the MES under the PWD Cadre (Civil), Senior SDO being apparently another name being given to those promoted to the post of Senior Grade (Non-Functional). 19. Mrs. Linda L. Fambawl, learned Addl. Advocate General, Mizoram on the other hand submits that there is no difference between Senior Grade (Functional) and Senior Grade (Non-Functional), they are both the same. While Senior Grade (Functional) are given the nomenclature Executive Engineer, Senior Grade (Non-Functional) are called Sr. SDO. She submits that the promotion of a Junior Grade of the MES to the Senior Grade of the MES (Functional) or to Senior Grade (Non- Functional) is the same. It is not merely financial upgradation, but it is also a regular promotion. She submits that the whole issue pertains to transfer and posting of the incumbents, holding the post of Senior Grade (Functional) and Senior Grade (Non-Functional). 20. I have heard the learned counsels for the parties. 21. To a query raised by this Court as to what post a Senior Grade (Functional) would hold if he is transferred to a Senior Grade (Non-Functional) post, the learned Addl. Advocate General has stated that the person who has been transferred to a Senior Grade (Non-Functional) post would be to Junior Grade post and would be called Senior SDO. 22. Rule 22(5)(a) of the Amended Rules states as follows: “(3) Sub-Rule (5) of rule 22 of the Principal Rules shall be substituted by the following, namely: “(5) Senior Grade: Pay Band-3 in the scale of Rs. 15600-39100/- with Grade pay Rs. 6600/- p.m. (a) To fill up vacancies in this Grade a member of the Service in the Junior Grade who have completed not less than 5 years continuous regular service in the Junior Grade and have passed Departmental Examinations in Engineering and Accounts conducted by the Commission shall be eligible for consideration for promotion by Selection Method. Provided that 80% of the posts shall be reserved for direct quota and 20% for promotion quota. Provided that 80% of the posts shall be reserved for direct quota and 20% for promotion quota. Provided further that the reservation system shall be discontinued after all the incumbents in Junior Grade from promotion quota as on the date of commencement of the Principal Rules i.e. 23.09.2013 either get promotion or died while in service or retired on superannuation pension or resigned from the service or removed/dismissed from service. (b) Notwithstanding anything in Sub-Rule (5)(a) of these rules, a member of the Service in the Junior Grade who have competed not less than 10 years continuous regular service in the Junior Grade and have passed Departmental Examination in Engineering and Accounts conducted by the Commission shall be eligible for non-functional promotion without linkage to vacancies by Selection Method. Provided that the provision for non-functional promotion shall be irrespective of the reservation system between direct recruits and promotes and shall be effective from the date of issue of Notification No. A.12018/53/2013-P&AR (GSW) dated 04.08.2015. Provided further that the posting of Officers to the functional posts in Senior Grade of the service shall be done, as far as possible, on the basis of seniority or as determined by the Government from time to time.” 23. A perusal of Rule 22(5)(a) of the Amended Rules shows that a member of the Junior Grade of the MES needs to have 5 years continuous regular service in the Junior Grade, besides passing the Departmental Examination in the Engineering & Accounts, for being eligible for consideration for promotion to the Senior Grade of the MES. 24. Interestingly, in terms of Rule 22(5)(b) of the Amended Rules, a member of the MES in the Junior Grade requires to complete not less than 10 years continuous regular service in the Junior Grade besides passing the Departmental Examination in Engineering and Accounts to be eligible for Non-Functional promotion without linkage to vacancies by Selection Method. 25. The difference in the qualifying years of service in terms of Rule 22(5)(a) and 22(5)(b) of the Amended Rules clearly shows that the promotion envisaged under Rule 22(5)(a) is not akin to the Non-Functional promotion to be given under Rule 22(5)(b). 26. Rule 22(5)(a) speaks of filling up of vacancies on the other hand, while Rule 22(5)(b) does not require a vacancy for consideration of a Junior Grade member of the MES to be eligible for Non-Functional promotion. 26. Rule 22(5)(a) speaks of filling up of vacancies on the other hand, while Rule 22(5)(b) does not require a vacancy for consideration of a Junior Grade member of the MES to be eligible for Non-Functional promotion. While the eligibility criteria required for promotion of the Junior Grade of the MES to the Senior Grade of the MES has remained the same in terms of Rule 22(5) of the 2013 Rules and the Rule 22(5)(a) of the Amended Rules, the new Rule 22(5)(b) of the Amended Rules starts with a non-obstante clause, which has an overriding effect over Rule 22(5)(a). When there are differences in Rule 22(5)(a) and Rule 22(5)(b), as has been enumerated in the foregoing paragraphs, it cannot be said that the promotion made under Rule 22(5)(a) and Rule 22(5)(b) is the same. The normal rule for promotion in terms of the Amended Rules is Rule 22(5)(a), which was Rule 22(5) in the 2013 Rules. Rule 22(5)(b), on the other hand, cannot said to be a normal rule of promotion, as the requirement of a candidate is that he should have been completed not less than 10 years continuous regular service in Junior Grade, besides passing the Departmental Examination in Engineering and Accounts. Further, the Non-Functional promotion does not require the person to be promoted against the vacant posts and does not have any link to the reservation/quota system. Thus, the promotion made under Rule 22(5)(b) cannot be said to be a normal rule of promotion. 27. Below is a chart showing the difference in the promotion procedure under Rule 22(5)(a) and Rule 22(5)(b) of the Amended Rules: CHART S. No. Rule Qualifying Service Required Departmental Examination to be cleared Vacancy Reservation system of posts between Direct Recruits and Promotees 1. 22(5) (a) 5 years in the Junior Grade of MES Engineering and Accounts Promotion linked to vacancies Linked 2. 22(5) (b) 10 years in the Junior Grade of the MES Engineering and Accounts Promotion not linked to vacancies Not Linked 28. In the case of Uttaranchal Forest Rangers’ Association (Direct Recruit) and Others vs. State of U.P. and Others, 2006 (10) SCC 346 (37), the Supreme Court has held that no retrospective promotion/seniority can be given when an employee is not even borne in the cadre. In the case of Uttaranchal Forest Rangers’ Association (Direct Recruit) and Others vs. State of U.P. and Others, 2006 (10) SCC 346 (37), the Supreme Court has held that no retrospective promotion/seniority can be given when an employee is not even borne in the cadre. Thus, a person’s seniority in a cadre can only be a counted from the date he is born into a post in a cadre. However, Rule 22(5)(b) does not require a person to be promoted against any vacant Senior Grade (Non-Functional) post, inasmuch as, there is no Senior Grade (Non-Functional) post created by the Government. 29. In the case of Keshav Chandra Joshi and Others vs. Union of India and Others, 1992 Supp. (1) SCC 272, the Supreme Court has held that when promotion is made outside the quota, seniority would be reckoned from the date of the vacancy within the quota, rendering the previous service fortuitous. 30. In the present case, there is nothing to show that the petitioners had been promoted to any of the 10 cadre posts of Senior Grade (Functional) out of the 51 post of Senior Grade (Functional). Thus, it appears that the promotion of the petitioners is outside the quota mentioned for Non-Graduate Engineers, as all the 51 cadre posts Senior Grade (Functional), reflected in the Schedule to the 2013 Rules and Amended Rules have been filled up. Only 7 out of the 10 quota posts being filled up Non-Graduate Engineers. In terms of Keshav Chandra Joshi (Supra), seniority would have to be reckoned from the date when the petitioners are promoted against the substantive vacant posts of Senior Grade (Functional) of the MES. The reason being that seniority would have to be reckoned from the date of promotion to a substantive regular vacant post. However, as can be noticed from the facts of this case, the petitioners have been promoted to the Senior Grade (Non-Functional) posts on the basis of Rule 22(5)(a) of the Amended Rules, without the promotion being linked to any vacant Senior Grade (Functional) posts. 31. As stated earlier, as per the Schedule to the 2013 Rules and the Amended Rules, there are only 51 substantive regular posts of Senior Grade of the MES. 31. As stated earlier, as per the Schedule to the 2013 Rules and the Amended Rules, there are only 51 substantive regular posts of Senior Grade of the MES. The inclusion of Non-Functional posts in the Schedule relating to the Senior Grade of the MES, does not show that the Non-Functional posts have been created and placed in the cadre of Senior Grade of the MES. The expression in the Schedule regarding addition of Non-Functional posts in the cadre strength of the Civil Wing of PW Cadre is ambiguous. Further, the question that also arises, is as to whether the 14 upgraded posts of the Junior Grade to the Senior Grade are functional posts or are they included amongst the Senior Grade (Non-Functional) posts. In any event, it is clear from the provision of Rule 22(5)(b) of the Amended Rules that the Non-Functional promotion of the petitioners have not been made against any vacant post in the Senior Grade of the MES. 32. If there is no vacant/substantive regular post in the Senior Grade of the MES, there is no question of counting a person’s seniority against a non-existent post. In that case, promotion to the post of Senior Grade cannot be considered to have been made on a regular substantive basis. 33. Rule 22(5)(b) states that Non-Functional promotion need not be linked to any vacancy. It is not understood as to how the State respondents can reconcile the counting of seniority of a person in a particular grade, who is not promoted to a regular substantive vacancy, as his promotion to a Non-Functional post of Senior Grade, is for all practical purposes, only an upgradation of his pay without being given the benefit of advancement to a higher position or grade. The eligibility criteria required for promotion to the Senior Grade of the MES Functional and Non-Functional are different as per Rule 22(5)(a) and Rule 22(5) (b) of the Amended Rules. Further, as there is no link between the Non- Functional promotion made in terms of Rule 22(5)(b), the promotion made under Rule 22(5)(a) and Rule 22(5)(b) cannot be said to be the same/similar. It is entirely different, inasmuch as, a person promoted under Rule 22(5)(a) is given the post of Executive Engineer(E.E) and is given the responsibility of Executive Engineer. Further, as there is no link between the Non- Functional promotion made in terms of Rule 22(5)(b), the promotion made under Rule 22(5)(a) and Rule 22(5)(b) cannot be said to be the same/similar. It is entirely different, inasmuch as, a person promoted under Rule 22(5)(a) is given the post of Executive Engineer(E.E) and is given the responsibility of Executive Engineer. However, the persons who are promoted under Rule 22(5)(b) are given the nomenclature of Senior SDO and are given the responsibility of SDO, which is the Junior Grade of the MES. 34. Though promotion includes advancement to a higher position and/or advancement to a higher pay scale, they are not the same. They are distinct and have different connotations and consequences. Upgradation merely confers a financial benefit by raising their pay scale. However, if there is element of selection than it would be a promotion to a higher pay scale. Promotion is an advancement in rank or grade or both and is a step towards advancement to a higher position. Upgradation merely confers a financial benefit, by raising the scale of pay of the post without there being movement from a lower position to a higher position. In an upgradation, the candidate continues to hold the same post without any change in the duties and responsibilities, but merely gets a higher pay scale. 35. Promotion, normally has to be linked to a regular vacancy, as seniority in a particular cadre/grade would be counted from the date a persons is promoted against a substantive vacant post. However, the promotion under Rule 22(5)(b) of the Amended Rules is not made against any vacant posts and the reservation/quota system fixed for Graduate and Non-Graduate Engineers is also done away with. Further, the eligibility criteria for Non-Functional promotion requires a Junior Grade Engineers to have 10 years service in the Grade, in contrast to the 5 years service in the Grade required for promotion under Rule 22(5)(a) of the Amended Rules. As the advancement to a higher pay scale without change of post is provided under Rule 22(5)(b), which is without any similarity to a promotion made under Rule 22(5)(a), this Court holds that the alleged promotion under Rule 22(5)(b) is not a normal rule of promotion and is different from promotion made under Rule 22(5)(a), which is linked to vacancies and the reservation/quota system. Just because a person who has been given non-functional promotion can be transferred to a functional senior grade post of the MES, i.e., Executive Engineer, does not mean that the promotion made under Rule 22(5)(b) is akin to the normal/regular Rule of promotion made under Rule 22(5)(a). 36. In view of the above reasons, a reading down of Rule 22(5)(b) of the Amended Rules, shows that the promotion of the petitioners to Senior Grade (Non-Functional) cannot be said to be a regular promotion to the Senior Grade of the MES, as contemplated under Section 22(5)(a). 37. It should also be kept in mind that besides the promotion made under Rule 22(5)(b) not being linked to any vacancy, the State respondents have promoted the private respondents to 3 substantive vacant functional posts of Senior Grade, reserved for Non-Graduate Engineers. On this count alone, the promotion of the Graduate Engineers in excess of their quota and by eating into the quota reserved for Non-Graduate Engineers, is palpably unfair and unreasonable. 38. The above being said, this Court in its Order dated 18.02.2021 passed in WP (C) No. 63/2020, which pertains to a similar matter involving the P&E Department, had directed that the petitioners therein who were holding the post of Senior Grade of the MES (Non-Functional) should be considered for promotion to the 2 vacant Senior Grade posts (Functional) of the P&E cadre of the MES. The same was complied with by the State respondents vide Notification No. A.32022/5/2015-P&E dated 14.06.2021, issued by the Commissioner & Secretary to the Govt. of Mizoram, P&E Department. The said Notification dated 14.06.2021 states as follows: “No. A.32022/5/2015-P&E: In pursuance of the Judgment & Order passed on 18th February, 2021 by the Hon’ble High Court in WP (C) No. 63 of 2020 and on the recommendation of Mizoram Public Service Commission (MPSC) vide their letter No. 34/A/2016-MPSC dated 08.06.2021 and in super-session of Notification No. A. 32022/5/2015- P&E dated 14.12.2020, the Governor of Mizoram is pleased to promote the following MES Officers from Junior Grade of MES (Elect) to the Senior Grade of MES (Elect) (Functional) under Power & Electricity Department in the Level 11 of Pay Matrix plus all other allowances as admissible from time to time with effect from 19.05.2020. S. No. Name of Officers Place of Posting 1. Er. Lalthanpuia EE (Planning), Aizawl Power Circle 2. Er. S. No. Name of Officers Place of Posting 1. Er. Lalthanpuia EE (Planning), Aizawl Power Circle 2. Er. Otto K. Lalchhuanawma EE (Planning), Lunglei Power Circle Sd/- H. LALENGMAWIA Commissioner & Secretary to the Govt. of Mizoram Power and Electricity Department.” The above notification shows that the State respondents have accepted the fact that Non-Functional promotion given under Rule 22(5)(b) is not the same as a promotion given under Rule 22(5)(a). 39. This Court has also been made aware of Notification No. A.32014-1/2015-PWD(E)/L Dated 01.12.2017, issued by the Principal Secretary to the Govt. of Mizoram, PWD, by which Pu F. Lalramenga, Sr. SDO (Civil) (Non-Graduate) has been promoted to Senior Grade of MES under PWD Cadre (Civil). The above two orders show that there is a requirement of promotion from the Senior Grade (Non-Functional) posts to Senior Grade (Functional) posts. Even otherwise, the promotion in terms of Rule 22(5)(b) does not appear to be a regular substantive promotion, as it is more of a financial upgradation of the pay scale, besides anything else. 40. Coming to the question of whether the quota reserved for (Non-Graduate) Engineers were enhanced from 10 to 13, as there has been upgradation of 14 Junior Grade post of the MES to the Senior Grade post of MES, this Court is of the view that in terms of the second proviso to Rule 22(5) of the 2013 Rules and the 2nd proviso to Rule 22(5)(a) of the Amended Rules, which provides that the quota reserved for the Non-Graduate Engineers is a withering post, and that the said quotas would only be applicable to those Non-Graduate Engineers who were in service at the time of promulgation of the 2013 Rules, the upgradation of the 14 Junior Grade post to the Senior Grade post, would not enhance the quota of the Non-Graduate Engineers or Graduate Engineers, beyond the number of posts given in the Schedule to the 2013 Rules. 41. On a query raised by this Court to the petitioners’ counsel, the petitioners’ counsel submits that as on date, there are 7 Non-Graduate Engineers in the Senior Grade of the MES, out of the 10 posts reserved for the Non-Graduate Engineers, in terms of the 2013 Rules and the Amended Rules. 42. In the three writ petitions, there are 5 writ petitioners, who are Non- Graduate Engineers. The petitioner No. 2 has since retired. 42. In the three writ petitions, there are 5 writ petitioners, who are Non- Graduate Engineers. The petitioner No. 2 has since retired. Further, the petitioners’ counsel has submitted that he would not be pressing the case of the petitioner No. 2. However, in view of the fact that only 3 out of the remaining 4 petitioners would be eligible for being considered for promotion to the Senior Grade (Functional) post of the MES, in terms of Rule 22(5)(a) of the Amended Rules, only 3 petitioners out of the 4 petitioners can be given promotion. 43. Consequently, the promotion orders of the Graduate Junior Grade Engineers, who have been promoted against the quota reserved for the Non-Graduate Engineers in the Senior Grade of MES, would have to be set aside or cancelled, to accommodate 3 out of the 4 petitioners, provided that they are eligible in terms of the Rule 22(5)(a). 44. Thus, in view of the reasons stated above, this Court finds that on a reading down of Rule 22(5)(b) of the Amended Rules, the Non-Functional promotion of the petitioners, made under the Amended Rules cannot be said to be a regular substantive promotion order, made to the post of Senior Grade of the MES (Functional). The State respondents are accordingly directed to consider the petitioners for promotion to the 3 substantive regular vacancies/posts of Senior Grade of the MES reserved for the Non-Graduate Engineers, which has been filled up by the private respondents. Consequently, the promotion of the private respondents to 3 of the Senior Grade (Functional) posts reserved for Non-Graduate Engineers are set aside and the said respondents may be given Non-Functional promotion under Rule 22(5) (b) of the Amended Rules. The entire exercise should be concluded within a period of 3 months from the date of receipt of this order. 45. The writ petitions are accordingly disposed of.