High Court · 2009

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 p ublished in the issue of the same date of the Assam Gazette Extraordinary. The s elect 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 No. 3 and 4, however, were placed at Sl. No. 1 and 2 respectively. By a separat e notification of the even date, the respondent No. 3 was promoted to the post o f Chief Engineer (Quality Control) of the Department. In WP(C) 1951/2009, as all uded hereinabove, the petitioner seeks to invalidate the aforementioned select l ist and promotion of the respondent No. 3. The State respondents in their affidavit affirmed by the Secreta 8. ry of the Department have asserted that the upgradation of the post of Superinte nding Engineer, Guwahati Mechanical Water Resources Circle, hitherto held by the petitioner to that of Additional Chief Engineer, Mechanical Zone, Water Resourc es Department, under Rule 3(4) of the Rules and that a selection was held from a mongst the existing two Superintending Engineers of the Mechanical Branch only a nd on the basis thereof, the petitioner was promoted as Additional Chief Enginee r, Mechanical Zone, Water Resources Department, Guwahati. According to them, tho ugh at the relevant point of time, there were 20 incumbents in the post of Super intending Engineer in the Civil Branch of which some were senior to Shri Nabin C h. 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 fo r the mechanical cadre. While dismissing the petitioner’s assertion of merger of all disciplines above the rank of Superintending Engineer, the answering respon dents have contended that presently there are two separate categories of Additio nal Chief Engineer i.e. Additional Chief Engineer (Civil) and Additional Chief E ngineer (Mechanical) in the department and that promotion of Additional Chief En gineer (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). T hey have, however, stated that as there is only one post of Additional Chief Eng ineer in the Mechanical Branch, separate gradation list therefor was not contemp lated. They have maintained that the post of Chief Engineer (Quality Control) do es not require any expertise of mechanical engineering as all duties and works r elatable thereto are of civil nature. The answering respondents have reiterated in clear terms that the post of Additional Chief Engineer of the Mechanical Cadr e 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 mos t Additional Chief Engineer has also been refuted. The respondents, however, hav e referred to an ongoing process to examine the possibility of creating a post o f Chief Engineer (M) in the department. 9. In his counter, the respondent No. 3 while generally endorsing t he stand taken by the official respondents, has insisted that the impugned grada tion list dated 6/9/2008 has been drawn up in conformity with Rule 3(4) of the R ules. While contending that in terms of the Rules, posts in Cadre (i), (ii) and (iii) of Class I (Sr. Grade) are borne in the civil branch of the Department unl ess specifically created for any other Branch as may be considered necessary, th e petitioner’s claim for consideration of his case for the post of Chief Enginee r in the backdrop of his promotion as Additional Chief Engineer (Mechanical) has been repudiated as untenable. He has claimed himself to be the seniormost incum bent in the cadre of Additional Chief Engineer (Civil) and thus eligible to be p romoted as the Chief Engineer (QC) as per the Rules. The averments in the affidavit of the respondent No. 4 are also 10. in the same lines and, therefore, dilation thereon is considered inessential. He , however, claimed to be the senior most Additional Chief Engineer, Upper Assam Zone, Water Resource Department, and thus eligible to be considered for promotio n 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 s uitability of the eligible candidates for promotion to the post of Chief Enginee r. The assertions in the affidavit in reply filed by the petitioner are in essen ce reaffirmation of those in the writ petitions. 12. Mr. Shyam has persuasively urged that the classification on the basis of disciplines being only upto the cadre of Superintending Engineer, as is evidenced by the Rules, no further distinction founded on the said norm is envi saged in the higher echelons and that therefore all Additional Chief Engineers i rrespective of their erstwhile categorisation were eligible to be considered for promotion to the post of Chief Engineer in the Department. While underlining th at though in the primordial days of the department then nomenclatured as Flood C ontrol Department, civil works formed the gamut of the organisational callings, with the increase in the variety and range of works pertaining to mechanical eng ineering, the post of Superintending Engineer (Mechanical) was upgraded to that of Additional Chief Engineer (Mechanical) to which the petitioner on the assessm ent of his suitability and merit was promoted. The learned Counsel in this backg round 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 equiva lent to that of the existing Additional Chief Engineers, the purported classific ation 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 e quivalent to that of the other Additional Chief Engineers, Rule 3(4), even if co nceded some relevance in the context of the administrative configuration can by no means annihilate the right of the petitioner for being considered for promoti on to the post of Chief Engineer along with other Additional Chief Engineers of the Department in accordance with the Rules. Referring to Rule 12 and 13 of the Rules, the learned Counsel has emphatically argued that the impugned gradation l ist of Additional Chief Engineers to the exclusion of the petitioner and the rep udiation of his eligibility for the next higher post of Chief Engineer is clearl y violative of his constitutional right in that regard as well as his rightful c laim therefor under the Rules. Without prejudice to the above, the learned Counsel has contende 13. d that Rule 3(4) in the present form besides being vague and inarticulate, is ou tdated in the present context and, therefore, needs to be read down to be in ali gnment with the petitioner’s constitutional as well as legal right for being con sidered 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. Pointin g 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 E ngineer (Quality Control) (also for short referred to as the C.E. (QC)), Mr. Shy am has sought to impress upon this Court that the post of Chief Engineer (QC) be ing entrusted with the mechanical works, the petitioner’s claim for being consid ered for promotion in any view of the matter, cannot be denied vis-à-vis the sam e. The learned Counsel pleaded that though represented by the respondents that t he 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 recom mended candidates nor his inter se position on merit and suitability on such ass essment has been disclosed by the respondents. Mr. Shyam has therefore imputed e xclusion of the petitioner from consideration of his case for promotion to the p ost of Chief Engineer contending that the act impugned is patently arbitrary, di scriminatory and unconstitutional and is liable to be adjudged as such. He has t hus insisted for a direction to the respondents to re-enact the process by annul ling the impugned promotion. To reinforce his arguments, Mr. Shyam placed relian ce on the following decisions of the Apex Court as well as of this Court Sunil B atra versus Delhi Administration and others, (1978) 4 SCC 494, Delhi Transport C orporation versus D.T.C. Mazdoor Congress and others, 1991 Supp (1) 600, Chandig arh Administration versus K.K. Jerath, (1994) Supp 3 SCC 582, S.C. Pandey versus State of M.P. and others, (2004) 13 SCC 604, Nandlall and Sons Tea Industries ( P) Ltd. & Another versus State of Assam and Others, 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 th e next higher post of Chief Engineer in the Department 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 b y this Court, his promotion as Chief Engineer of the Department being impermissi ble 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 acc ordingly promoted thereto. Mr. Dutta, learned Counsel for the respondent No. 4 has argued o 15. n the basis of the pleadings that having regard to the sequence of events involv ing the upgradation of the post of Superintending Engineer (Mechanical) to that of the Additional Chief Engineer (Mechanical) and the promotion of the petitione r thereto, none of his grouses in the context of the Rules is entertainable in l aw. Refuting the assertion that the post of CE (QC) deals in works relating to m echanical cadre, the learned Sr. Counsel with reference to the documents appende d 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 tha t 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 considere d is a clear indicator that the said post of Additional Chief Engineer (M) was m eant only for the mechanical wing of the department and was not open for the oth er branches. The plea of homology between Additional CE(M) and Additional CE(C) is thus frivolous, he urged. 16. Endorsing the validity of the impugned gradation list, the learn ed Sr. Counsel maintained that as the petitioner was the only Additional Chief E ngineer 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 o f Rule 3(4), in absence of any post of Chief Engineer (M), the petitioner was no t 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 Superintend ing Engineer (M) per se would not facilitate his transition therefrom to the exi sting posts of Chief Engineer in the Department on promotion. The learned Sr. Co unsel 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 discernibl e to the contrary vis-à-vis any particular cadre, no integration thereof with th e 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 legit imately 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 w ith 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 promotio n to the existing post of Chief Engineer. Referring to the letter dated 12/1/200 9 of the Secretary to the Government of Assam, Water Resources Department, Guwah ati, initiating steps for creation of a post of Chief Engineer (M) in the Depart ment, 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 responde nts. That the omission of the petitioner to question the validity of Rule 3(4) d isentitles him to plead unconstitutionality, arbitrariness and discrimination qu a the impugned action has been urged as well. The authorities cited at the Bar h ave been distinguished contending that those had been rendered in different fact ual context. Instead reliance has been placed on a decision of this Court in Pro goti Bora versus State of Assam and others, 2003 (1) GLT 472, asserting that the Rules involved therein presented identical provisions in which the plea on the basis of cadre vis-à-vis promotion had been upheld. 17. Mr. Das, learned Counsel for the respondent No. 3 while apprisin g 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 furthe r 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 Ru les are outdated, the learned Counsel has insisted that the same per se do not e vince that the post of Additional Chief Engineer (M) constitutes a separate cadr e. 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 t hereof with Rule 3(2) is called for to secure the petitioner’s constitutional ri ght to be considered for promotion. He distinguished the decision in Progoti Bor a, supra, contending that the Rules involved therein having clearly segregated, the cadres upto the rank of Additional Chief Engineers, the challenge based ther eon 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 therewi th have been cautiously analysed. The Rules having occupied the centre stage of the debate, deserves immediate reference for the essential insight into the esse nce of the simmering controversy. The Rules are the yield of the powers conferre d by Article 309 of the Constitution of India to regulate the recruitment and co nditions of service of persons appointed to Assam Engineering (Flood Control Dep artment) Service (for short also referred to as the Service). As an upshot of th e constitutional empowerment, this legislative instrument wields a presiding pro file and is of authoritative bearing on all concerned. The provisions thereof pr escribing the norms for regulating the recruitment and conditions of service, as the constitutional provision enjoins, would enjoy a primacy in such matters til l an Act of the appropriate Legislature is enacted. The Rules, which are applica ble to the members of the aforenamed Service, in Rule 3, design the class, cadre , branch and status thereof. The use of the word (cid:28)branch (cid:29) is of added significan ce in the present factual conspectus. The service, as the said provision predica tes, comprises inter alia of Class-I (Sr. Grade), which consists of the followin g: (i) (ii) (iii) Secretary to the Government Chief Engineer 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-Rule (3) and (4) for the purpose of immediate reference are extracted herein below. (cid:28)(3) The cadres of Superintending Engineer, Executive Engineers, Sub-Div isional Officers and Assistant Engineers may have distinct branches, namely, Civ il, Mechanical and Electrical and each branch may be deemed to be a separate cad re. (4) The posts in cadres (i), (ii) and (iii) of Class I (Senior Grade) me ntioned in sub-rule (1) shall be borne in the Civil branch unless specifically c reated for any other branch, as may be considered necessary. (cid:29)

20. The strength of the service is provided by Rule 4 to be as deter mined by the Governor from time to time, Schedule-I of the Rules provides the sa me at the date of commencement thereof. The method of recruitment outlined in Ru le 5 amongst others mandate that induction to Class-I and Class-I (Senior Grade) shall be made by promotion only in accordance with Rule 12 and 13. Promotions u nder Rule 12 would be on the recommendation of the related Selection Board concu rred upon by the appointing authority subject to suitability of the candidates c oncerned 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 commencem ent of the Rules being set out in Schedule III thereof. Rule 12(2), however, pro vides in clear terms that promotion to the post of Chief Engineer has to be from that of Additional Chief Engineer, the criteria therefor as per the latest amen dment 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 i s unnecessary to deal with the procedure for promotion in details as narrated in Rule 13. The provisions pertaining to seniority, probation and confirmation unf ailingly 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 i n order of seniority and such other particulars such as date of birth, date of a ppointment 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 au thority may decide subject to the condition that a member belonging to a particu lar branch of the cadre shall be employed within the same branch. 22. Schedule I of the Rules depicts the sanctioned strength and scal es of pay of the different categories of posts mentioned therein. It demonstrate s two broad branches i.e. civil and the mechanical. Though the nomenclature ’civ il’ 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 rec ruitment to the cadre of Assistant Engineer and equivalent posts in the Service and in clear terms ordains that therefor one must posses a decree in respective branch of Engineering namely, Civil, Mechanical and Electrical of an Indian or F oreign University recognised by the Government. The academic qualification in th e alternative appearing in the said Schedule being not of any significance for t he 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 (cid:28)Assistant Executive Engineer (cid:29). The contents otherwise have been retained as in the original Rules. 24. A scrutiny of the Rules presents the omnipresent concept of cadr e as a distinct and independent constituent of service in its overall texture. R ule 3(3) makes it obvious that cadres of Superintending Engineer, Executive Engi neers, 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, mecha nical and electrical branches therein so much so that each branch would be deeme d 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 En gineer they would branch wise constitute a separate cadre. Noticeably though the posts higher in rank than that of the superintending Engineer, do not find ment ion in Rule 3(3), Rule 3(4) appears to be determinative in this regard. It postu lates that posts in Cadre (i), (ii) and (iii) of Class-I (Senior Grade) i.e. Sec retary to the Government, Chief Engineer and Additional Chief Engineer respectiv ely, shall be borne in the civil branch unless specifically created for any othe r branch as may be considered necessary. The edict of the Rule is to identify th e 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 w ith the rule making authority. Axiomatically therefore the posts enumerated in t he cadres (i), (ii) and (iii) (Senior Grade) at the time of the framing of the R ules were borne consciously in the civil branch and in absence of creation of an y 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 co ntemplated thereby i.e. mechanical and electrical. Rule 3(2) which envisages tha t the service may also include any post equivalent to a post in any of the cadre s mentioned in Rule 3(i) and any cadre or post subsequently laid down by the Gov ernment 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 independe nt and different fields, Rule 3(4), having regard to the scheme of Rule 3 has be en 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 automatica lly become eligible to be considered for promotion to the existing posts of Chie f Engineer (W.R.) and C.E. (Q.C.), in absence of any post of Chief Engineer crea ted for the mechanical branch being impelled by administrative necessity. 25. Rule 3, which presents the inviolable segments of the hierarchic al 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 pr esence in the Rules, the proposition of synthesis of posts beyond that of the Su perintending Engineer irrespective of the branches contemplated by the Rules in the lower rungs would render Rule 3(4) wholly redundant and wreck the basal attr ibutes thereof. Rule 3(3) which ordains branches namely civil, mechanical and el ectrical in each cadre of posts mentioned therein and deemed to be a separate ca dre, when read in conjunction with Rule 3(4) makes the creation of posts in cadr es (i), (ii) and (iii) of Class (Senior Grade) for branches other than civil ind ispensable to permit advancement of the incumbents of a mechanical and electrica l disciplines to higher posts. 26. Schedule-I of the Rules though apparently out of tune with the m arch 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 th e branches in the ranks above that of the Superintending Engineer. The birth mar k at the entry as the academic qualification for direct recruitment as prescribe d by Schedule-II of the Rules accords, remains engraved so much so that elevatio n to the higher cadres is not only insulated till the rank of Superintending Eng ineer 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 tho se belong to the civil branch. The matters in record are inadequate to sustain t he assertion that the office of the CE (QC) is entrusted and/or is required to l ook after and administer the works relating to the mechanical wing of the depart ment. The legislative intendment evinced by the Rules, as would be amp 27. ly demonstrated by the provisions thereof, pertaining to all aspects of recruitm ent and conditions of service of a member thereof namely probation, seniority, p romotion etc unequivocally maintain branch wise cadres even beyond the post of S uperintending Engineer. The language employed in the Rules more particularly in Rule 3 thereof admits of no ambivalence or hypothesis. Having regard to the orga nisational 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 p reponderant concept of a cadre and branch ingrained in it as a distinctly separa te and independent unit of service, the petitioner interpretation’s of Rule 3(4) is apparently a truncated comprehension thereof. A legislative predication of c adre insulation through the ranks debarring inter-compartmental transition being visibly discernible, any endeavour to read down Rule 3(4) to recognise the peti tioner’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 t he petitioner and one Shri Nabin Ch. Sharma the then Superintending Engineer in the Mechanical branch were considered and that the other Superintending Engineer s of the civil branch many of whom were senior to the latter excluded from the e xercise. 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 incumbe nt 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 estima te of the Court, is not in conflict with the domain of Rule 3(2). In the teeth of the prescript of cadre distinction as the bifurc 29. ation grundnorm permeating the gossamer of the Rules, the plea of assimilation o f the post of Additional Chief Engineer (M) with the cadre of Additional Chief E ngineer 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 an d any promotion therefrom to the post of Chief Engineer would be permissible onl y if a post of that rank in the mechanical branch is created to accommodate the concerned incumbent. The cavil of denial of the petitioner’s constitutional right to 30. 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 Constitutio n of India, such a right evidently has to be subject to the provisions thereof d elineating his conditions of service. His right to be considered for promotion b eing one recognised by the Rules has to be essentially subject to its enjoinment s. The consistent stand of the official respondents as is gleanable from their p leadings as well as the documents available on record more particularly the impu gned seniority list, select list and the promotion order of respondent No. 3 rea d 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 mor e so in absence of any challenge to the validity thereof. The language of the Ru les being clear and unmistakeable no other view in the face of the scheme thereo f is perceptible although Schedule-I thereof has not been appropriately updated. This omission on the part of the State respondents, however, does not detract f rom the basic and foundational provisions thereof which reinforce the view taken . The impugned action of the respondents does not suffer from any misconstructio n 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 form er. 32. To the same effect is the rendering of the Apex Court in Delhi T ransport Corporation, supra. Their Lordships, however, in this decision observed that where there is a clear, unambiguous and positive provision of a legislatio n, the Court should be loathe to read it down. But where the statute is silent o r not expressive or inarticulate, it must read down in the silence of the statut e and in inarticulation of its provisions, the constitutional inhibitions and tr ansmute 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 i nterpretation of a legislation or a rule is to discover and translate the intent ion 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 unwarrante d hardship and inconvenience, a construction to uphold the cause of substantial justice ought to be adopted. These authorities in the spectrum of facts that obtains in the p 34. resent case are of no avail to the petitioner having regard to the plain manifes t and unequivocal language of the Rules which having regard to its schematic ori entation do not lead to absurd results. The decision of the Apex Court in Chandigarh Administration vers 35. us K.K. Jerath supra, and S.C. Pandey, supra, also do not advance the case of th e 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 t he posts involved. On the other hand, the decision of this Court in Pragoti Bora , supra, dealing with an identical issue vis-à-vis the Assam Engineering (Irriga tion) Department Service Rules, 1978, which is substantially in parimateria with the Rules in hand endorses the determination made hereinabove.

36. The official records produced demonstrate that in pursuance of t he order of this Court, the candidature of the petitioner had been considered al ong 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-à-vis him was t aken. Noticeably this Court did not and rightfully so direct the petitioner’s pr omotion 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 respond ents does not arise. The impugned select list and the promotion of the responden t No. 3, on a scrutiny of the selection proceedings in the perspective of the pr esent 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 s ustained. 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 und er the Rules, the petitioner who is due to retire shortly can be considered for his promotion thereto. No costs.