DEEPAK KUMAR GHOSH Vs. STATE OF ASSAM

JUDGEMENT

(1.) THE dispute involved in this writ petition relates to the post of Chief Engineer, Public Health Engineering Department (for short PHED), Govt. of Assam. While according to the petitioner, by virtue of his merit position in the selection as well as seniority over the private respondent i.e. the respondent No.4, he is entitled to get the said promotional post, the respondents, both official and private, have contended that the petitioner having already been promoted to the post of Chief Engineer, Sanitation, in the same department, carrying equivalent rank, status, duties and responsibilities, there is nothing wrong in promoting the respondent No.4 to the post of Chief Engineer, PHED, which subsequently fell vacant, out of the same selection. THE whole controversy is as to whether both the posts are equivalent in rank, status, duties and responsibilities, without any distinctive features.

(2.) THE rules governing the service conditions of the parties is Assam Public Health Engineering Service Rules, 1996. As per the said rule and schedule thereto, there is only one permanent post of Chief Engineer. Rule " 4 provides that the strength of each cadre in a class of service shall be such as determined by the Governor from time to time. THE strength of cadres on the date of commencement of the Rules is indicated in the schedule. Proviso to the said Rule provides that the Governor may hold in abeyance any post as and when considered necessary. THE post of Chief Engineer is indicated in Rule -3 while describing the class and cadre. Admittedly, the post of Chief Engineer is a promotional post subject to suitability as may be decided by the Selection Board as per the procedure laid down in Rule 13 of the said Rules.

(3.) PURSUANT to the said selection held on 25.1.2011, two notifications had been issued, both dated 29.1.2011. By the first notification, the Additional Chief Engineer at Sl. No.1 of the merit list, namely, Shri Hemendra Kr. Borah was promoted to the post of Chief Engineer (PHE) and by the 2nd notification, the petitioner was promoted to the post of Chief Engineer (PHE), Sanitation.