Full Judgment Text
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CASE NO.:
Appeal (civil) 884 of 2002
PETITIONER:
Chandravathi P.K. and Ors.
RESPONDENT:
C.K. Saji and Ors.
DATE OF JUDGMENT: 12/02/2004
BENCH:
CJI, S.B. Sinha & S.H. Kapadia.
JUDGMENT:
JUDGMENT
W I T H
CIVIL APPEAL NOS. 885-887, 888, 889 & 890-893 OF 2002
S.B. SINHA, J :
These appeals involving common questions of law and
fact were taken up for hearing together and are being
disposed of by this common judgment.
BACKGROUND FACT :
For the said purpose, however, we would note the fact
of each matter separately.
CIVIL APPEAL NOS. 884 OF 2002 :
The private parties, at all material times were and
still are working with the Kerala Water Authority. The
appellants herein are degree-holders whereas the private
respondents herein are diploma-holders. The said
respondents acquired the qualification of AMIE Part-A and
Part-B which is said to be equivalent to the degree while
they were in service.
For the purpose of grant of promotion as also other
conditions of service governing the service of offices, the
Authority had adopted the Kerala Public Health Engineering
Service Rules (Rules). It is not in dispute that there exist
three categories of posts in the engineering branch, namely,
Assistant Engineer, Assistant Executive Engineer and
Executive Engineer.
Rule 4 of the said Rules reads as under :
"4. Promotion as Executive and
Assistant Engineers :
(a) A person who obtains Degree in
Engineering or A.M.I.E. (India)
Diploma after appointment as
Assistant Engineer shall be
eligible for promotion as Executive
Engineer only after the claims of
all Assistant Engineers who on the
date of his obtaining the degree in
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Engineering or the AMIE (India)
Diploma, possessed the
qualification mentioned in item (i)
in the Annexure have been
considered.
(b) Vacancies in the category of
Assistant Engineers shall be filled
up from among those in categories 1
or 2 in the Kerala Public Health
Engineering Subordinate Service in
the (ratio of 3 : 1) between
(1) Persons possessing any of the
qualifications mentioned in
item (i) or in section A in
item (ii) of the Annexure; and
(2) Those possessing any of the
qualifications mentioned in
section B in item (ii) of the
Annexure or those possessing
the SMT, Overseers
certificate, every 5th
vacancy being allotted to the
latter and the rest to the
former.
A person who while holding (any of the
posts in categories 1 and 2 of the
Kerala Public Health Engineering
Subordinate Service) passes Sections A
and B of the AMIE (India) Examination
shall be eligible for promotion as
Assistant Engineer against the quota
allotted for those possessing the
qualifications mentioned in item (i) or
Sec. A in item (ii) of the Annexure only
after the claim of all those who, on the
date of his passing the AMIE (India)
Examination, possessed the
qualifications mentioned item (i) of the
Annexure have been considered.
Provided that it will be left to the
option of such persons to continue among
(those) possessing the qualifications
mentioned in Section B in item (ii) of
the Annexure and claim promotion against
the quota allotted to them."
Rule 5 of the Kerala Engineering Service (General
Branch) Service Rules reads thus :
"5. Promotion as Executive and
Assistant Executive Engineers.-
(a) A person who obtains the AMIE
(India) Diploma or a pass in
section A & B of the AMIE of the
Institution of Engineers (India) in
Civil or Mechanical Engineering
after appointment as Assistant
Executive Engineer shall be
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eligible for promotion as Executive
Engineer only after the claims of
all Assistant Executive Engineers
who, on the date of his obtaining
the AMIE (India) Diploma or a pass
in Section A & B of the AMIE of the
institution of Engineers (India) in
Civil or Mechanical Engineering,
possessed the qualification
mentioned in item (i) and section A
in item (ii) in the Annexure have
been considered.
(b) Vacancies in the category of
Assistant Executive Engineers
shall be filled up from among
Assistant Engineers in the ratio of
75:20:5 respectively from among \026
(1) Persons possessing any of the
qualifications mentioned in item
(i) or in section \026A in item
(ii) of the Annexure.
(2) Those possessing any of the
qualifications mentioned in
Section B in item (ii) of the
Annexure, and
(2) Those possessing the Draftsman
Certificate of the College of
Engineering, Guindy or SMT
Overseer’s Certificate.
A person, who while holding the
post of Assistant Engineer passes
Sections A and B of the AMIE (India)
Examination or a Degree in Engineering
of a recognized University shall be
eligible for promotion as Assistant
Executive Engineer against the quota
allotted for those possessing the
qualifications mentioned in item (i) or
Section A in item (ii) of the Annexure
only after the claims of all those who
on the date of his passing the AMIE
(India) Examination or a Degree in
Engineering of a recognized University
possessed the qualifications mentioned
in item (i) in the Annexure have been
considered.
Provided that it will be left to
the option of such person to continue
among the Assistant Engineers possessing
the qualifications mentioned in Section-
B in item (ii) of the Annexure and claim
promotion against the quota allotted to
them.
Note.-1.The separate quota allotted to
the Certificate Holders will be
abolished as soon as the holders of the
SMT Overseers Certificate and Draftsman
Certificate of the College of
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Engineering, Guindy in service are
absorbed as Assistant Engineers.
Thereafter the ratio will revert to 3 :
1 on cadre strength between Degree
holders and Diploma holders.
2. The ratio fixed for promotion to
the cadre of Assistant Executive
Engineers will be applied to the cadre
strength of Assistant Executive Engineer
as a whole, i.e., to the total number of
posts of Assistant Executive Engineers
in the Department and not to vacancies
as they arise. Separate seniority lists
will be maintained for the purpose in
the cadre of Assistant Executive
Engineers for degree holders/Diploma
holders and certificate holders and
promotions and reversions of each
category of officers will be continued
to the quota allowed for each category
within the cadre strength
notwithstanding anything contained in
the Kerala State and Subordinate
Services Rules."
Rule 4 (a) of the Kerala Engineering Service
(General Branch) Rules provides for qualifications which
is the following terms :
"Qualifications : No person shall be
eligible for appointment to the category
mentioned in column (1) of the table
below unless he possesses the
qualifications prescribed in the
corresponding entry in column (2)
thereof.
TABLE
Category Qualifications
(1) (2)
Superintending
Engineers
Must possess any degree or
diploma mentioned in item (i)
or in Section-A under item (ii)
in the Annexure
Executive
Engineers
Must possess any degree or
diploma mentioned in item (i)
or in Section-A under item (ii)
in the Annexure.
Assistant
Executive
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Engineers
Must possess any degree or
diploma mentioned in item (i)
or (ii) in the Annexure
or
Must possess Draftsman’s
certificate of the College of
Engineering, Guindy (2 years
course) or SMT Overseers
Certificate and must have put
in a total service of 25 years
in the department out of which
12 = years must be as Assistant
Engineer.
Note : In the case of SMT Certificate
holders and of those possessing
Draftsman’s certificate of the College
of Engineering, Guindy, for the purpose
of calculating the 25 years of total
service, continuous Work Establishment
Service, if any, put in by such persons
shall also be reckoned subject to the
condition that this shall not affect the
claims of any of the seniors of such
persons in the category of Junior
Engineers."
The validity of said rule came to be questioned by the
respondents by filing a writ petition before the High Court,
which was marked as O.P. No.10484 of 1997-W. The matter as
regard the validity of the said rule insofar as it applied
to the Kerala Water Authority restricting the consideration
of the Assistant Engineers who possessed degree/AMIE after
the claims of all those who on the date of their passing the
AMIE/Degree possessed the qualification mentioned above was
referred to the Full Bench of the High Court. The Full
Bench of the High Court despite observing that it was not
necessary to consider the validity of the rule and that
there was no restriction imposed on the Assistant Engineers
who acquired degree while they were in the feeder category
for promotion as Assistant Engineer, quashed the order
impugned in the writ petition holding :
"...It is held that the petitioner is
entitled to promotion to the post of
Assistant Executive Engineer taking into
consideration his entire service as
Assistant Engineer in a vacancy which
had arisen in the post of Assistant
Executive Engineer after the date of his
acquisition of degree qualification
viz., September 1996. The petitioner
will be granted promotion as Assistant
Executive Engineer forthwith, in the
vacancy in which the 2nd respondent
was promoted. In the category of
Assistant Executive Engineer the
petitioner will be treated as senior to
the 2nd respondent."
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The appellants herein were not parties in the said writ
petition. They filed this appeal being aggrieved by the
said judgment, inter alia, contending that the private
respondents were junior to them and furthermore, there were
two different quotas for promotion from amongst the diploma-
holders and the degree-holders. By way of example, it had
been pointed that services of the writ petitioners before
the High Court (Private Respondents herein) were regularized
on 19.9.1990 and they had passed both Part A and Part B of
the Examination only in 1996 whereas the said qualification
was acquired by the appellants herein were already holders
of the degree qualification at the time of joining of the
post as Assistant Engineer on 15.12.1983, 3.5.1986 and
8.7.1986 respectively.
CIVIL APPEAL NO.889 OF 2002 :
The aforementioned appeal has been filed by the Kerala
Public Works Department Graduate Engineers Association
questioning a judgment and order dated 27.7.1999 of a Full
Bench of the Kerala High Court in W.A. No.152 of 1995-A
arising out O.P. No.8441 of 1991 whereby and whereunder
following the decision of the Full Bench in Manmadhan vs.
Kerala State Electricity Board [1999 (1) KLT 37] as also the
judgment of a Division Bench in T.R. Krishnan vs. State of
Kerala and Others disposed of on 19.2.1990 holding that Rule
5 of the Kerala Engineering Service (General Branch) was
ultra vires.
CIVIL APPEAL NOS. 885 TO 888 AND 890 TO 893 OF 2002 :
Civil Appeal Nos.885 to 888 of 2002 have been filed
against the judgment and order dated 2.11.1998 passed by the
Full Bench in Writ Appeal Nos. 1215, 1155 of 1991, 119 of
1992 and 1154 of 1991. The parties to these appeals,
however, are employees in the Harbour Engineering Branch of
Kerala Port Trust. The Harbour Engineering Department is an
independent department. No rule which are in pari materia
with the rules aforementioned govern the terms and
conditions of service of the employees working therein. The
rules applicable to the Harbour Engineering Branch of the
Kerala Port Trust govern the matter relating to promotion to
the posts of Assistant Executive Engineer. For the purpose
of promotion to the post of Assistant Executive Engineer,
the rules provided for grouping of Assistant Engineers into
Group-A and Group-B; whereas Group-A comprise of Graduate
Assistant Engineers Group-B comprised of Diploma-holder
Assistant Engineers. The qualifications for promotion to
the post of Assistant Executive Engineer against each Group
read thus :
Group-A:
"1. B.Sc. Degree in Engineering (Civil)
of a recognized University of
India.
2. A minimum period of 3 years service
as Assistant Engineer
Group-B :
1. Diploma in Civil Engineering or any
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other qualifications recognized by
the Government of Kerala as
equivalent thereto.
2. A minimum period of 7 years service
out of which 5 years shall be as
Assistant Engineer in the Harbour
Engineering Branch.
Note : A ratio of 3 : 1 of the total
posts of Assistant Executive Engineer
shall be applied between candidates
possessing the qualifications under
Group A and candidates possessing
qualifications under Group B in the
matter of appointment to the category of
Assistant Executive Engineer.
In the absence of candidates
possessing qualifications under Group-B
vacancies reserved for such candidates
shall also be filled up by candidates
possessing qualifications under Group-
A"
The parties, therefore, are not governed by any rule,
where the question as regard acquisition of a higher
qualification arises while in service.
Before the learned Single Judge of the Kerala High Court
before whom the writ petition came up for hearing, a
purported draft rule was placed which reads as under :
"A person, who while holding the post
of Assistant Engineer possess Sections A
and B of the AMIE (India) Examination or
a Degree in Engineering of a recognized
University shall be eligible for
promotion as Assistant Executive
Engineer against the quota allotted for
those possessing the qualifications
mentioned in item (i) or Section A in
item (ii) of the Annexure only after the
claims of all those who on the date of
his passing the AMIE (India)
Examination, or a Degree in engineering
of a recognized University possessed
the qualifications mentioned in item (i)
in the Annexure have been considered."
Having regard to the fact that Rule 5 of the Kerala
Engineering Service (General Branch) Rules, as amended on
8.6.1982 was declared ultra vires in T.R. Krishnan (supra),
the learned Judge although noticed that the said amendment
had not come into force and as such the validity thereof
need not be gone into, held :
"If the stand taken by respondents 1
and 2 is accepted, a Diploma holder
Assistant Engineer, who has put in long
years of service in that cadre will
loose the benefit of that experience on
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his acquiring Degree qualification. He
will have to come to Group A as the
junior most and then put in service for
three years. The experience gained by
them cannot be wiped off on the ground
that they acquired the degree in Civil
Engineering. This is illegal and
arbitrary. An Assistant Engineer, who
is a Diploma holder, on acquiring Degree
qualification, cannot be compelled to
disgorge the benefit of the experience
gained by him as Assistant Engineer.
He must have credit of the experience.
Depending on the rank in the seniority
list and the Degree qualification, which
he acquired subsequently, as on the date
of occurrence of the vacancy must be
considered for appointment by transfer
to the cadre of Assistant Executive
Engineer. Petitioner who took the
Degree in 1986 and had put in 6 = years
of experience on that date, must be
considered as a Graduate Assistant
Engineer for being appointed to the post
of Assistant Executive Engineer by
transfer in the vacancy which arose
subsequent to November, 1986. The
contrary stand taken by respondents 1
and 2 is illegal."
The appeal against the said order was heard by the Full
Bench along with other connected matters and, as noticed
hereinbefore, decided by the impugned judgment.
SUBMISSIONS :
Mr. K. Sukamaran, learned Senior Counsel appearing on
behalf of the appellants in Civil Appeal No.884 of 2002, Mr.
P. Krishnamoorthy, learned Senior Counsel appearing on
behalf of the appellant in Civil Appeal No.889 of 2002 and
Mr. John Mathew, learned counsel appearing on behalf of the
appellants in Civil Appeal Nos.885 to 888 of 2002, would
submit that the Full Bench of the High Court committed a
manifest error in passing the impugned judgment insofar as
it declared the relevant rules as ultra vires without
assigning sufficient or cogent reasons in support thereof.
The learned counsel would submit that possession of a higher
qualification has all along been treated differently in the
service rules and, thus, cannot be said to be hit by Article
14 of the Constitution of India. It was further urged that
there exists separate channels for promotion to the post of
Assistant Executive Engineer and, thus, the appellants
herein being degree-holders were seniors to the diploma-
holders who acquired a higher qualification in service and
if they intend to avail the promotional avenue meant for the
degree-holders, they would be placed at the bottom of the
list and, thus, no illegality can be said to have been
committed in considering them to be the juniormost in the
said channel; particularly keeping in view the fact that
despite acquisition of a higher qualification, the officer
concerned had an opportunity to exercise his option as
regard promotion to the post of Assistant Executive
Engineer.
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Drawing our attention to the judgment of the High Court
in Krishnan’s case (supra), the learned counsel would submit
that from the factual matrix obtaining therein it would
appear that the amendment to Rule 5 was held ultra vires as
by reason thereof a right vested in him was sought to be
taken away. The said decision, the learned counsel would
submit does not lay down the correct law.
Mr. T.L.V. Iyer, learned Senior Counsel appearing on
behalf of the respondents, on the other hand, would draw
our attention to the fact that earlier there were three
categories of officers in the engineering branch, namely,
Junior Engineer, Assistant Engineer and Executive
Engineer, which were re-designated as Assistant Engineer,
Assistant Executive Engineer and Executive Engineer. The
learned counsel would contend that having regard to the
fact that by reason of such redesignation the diploma-
holders who were originally appointed as Junior Engineers
also were redesignated as Assistant Engineers, the
impugned rule has rightly been held to be ultra vires
and/or inapplicable in the case of the diploma-holders.
Mr. Mathai M. Paikeday, learned Senior Counsel
appearing in Civil Appeal No.885-87, 888 and 890-93 of
2002, however, would urge that in the case of Harbour
Engineering Branchof the Kerala Port Trust, separate rules
exist and having regard to the fact that the purported
draft rules never came into being, the concerned employees
would be governed by the existing rule in terms whereof,
there are separate channels of promotions for the diploma
and degree-holders, as contained in Part A and Part B, as
referred to hereinbefore. The learned counsel appearing
on behalf of the State of Kerala, however, would submit
that the proposed amendment although never came into
force, but the same was indicative of the fact that the
intention of the State had all along been to have two
categories of services and if pursuant to or in
furtherance thereof the degree-holders and diploma-holders
are treated separately, no fault can be found therewith.
QUESTION :
The short question which arises for consideration is
as to whether in terms of the scheme of the Kerala
Engineering Service (General Branch) Rules, diploma-
holders are entitled to claim any weightage in the service
rendered by them prior to their acquisition of degree
qualification in the matter of promotion or transfer to
higher posts when specific quota is fixed for graduates
and diploma-holders in the matter of promotion.
ANALYSIS :
It is not in dispute that in terms of the extant
rule, appointments to the post of Junior Engineer which
had later been re-designated as Assistant Engineer could
be made by: (1) direct recruitment of graduate engineers;
and (2) promotion from first grade overseers possessing
diploma and certificates in the ratio of 5 : 3 : 2. The
method of appointment of Assistant Executive Engineer,
however, was upon recruitment by transfer from Assistant
Engineers in the ratio of 75 : 20 : 5 from amongst the
persons possessing degree holders of diploma and
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certificate respectively. It is also not in dispute that
promotion to the post of Executive Engineer is to be made
from amongst the Assistant Executive Engineers. Rule 4 of
the Kerala Health Engineering Service Rules and Rule 5 of
the Kerala Engineering Service (General Branch) Rules, in
our opinion, are to be read in their entirety. Clause (a)
of the said Rules 4 and 5 respectively refer to
acquisition of qualification of Sections A and B in AMIE
after appointment as Assistant Engineer/Assistant
Executive Engineer whereas clause (b) thereof provides for
filling up of vacancies in the cadre of Assistant
Executive Engineers, one from amongst the persons who
possess any of the qualifications mentioned in item (i)
or in Section-A in item (ii) of the Annexure, which
indisputably refer to degree-holders, diploma-holders and
certificate-holders. By reason of the said rule, if a
person while holding the post of Assistant Engineer
(erstwhile Junior Engineer) passes Sections A and B of
AMIE or a Degree in Engineering from a recognized
University, he would also be eligible for promotion
against the quota allotted for those possessing the degree
qualification. By reason of the proviso appended to the
said rule, however, the concerned Assistant Engineer has
been given an option to continue amongst the Assistant
Engineers possessing diploma in engineering.
Rule 5(b) was amended on 20.7.1982. Prior to its
amendment, the rule provided that an Assistant Executive
Engineer who possessed AMIE (India) Examination was to be
eligible for promotion as Assistant Executive Engineer in
the quota of degree-holders only after promotion of those
who were already holding the degree qualification.
In T.R. Krishnan (supra), the question which were
formulated read as under :
"1. Whether the Asst. Ex. Engineers
holding degree qualification and
diploma qualification are fused into
one common category and if so whether
the principle laid down in Rajan vs.
State of Kerala 1983 KLT 878 would be
applicable to the case of the
petitioner.
2. Whether the petitioner is entitled to
claim parity of treatment like the
certificate holders on the basis of
Ext.P-7 order.
3. Under the scheme of the Rules of the
Kerala Engineering Service General
Branch, whether the petitioner is
entitled to claim any weightage for
the service rendered by him prior to
his acquisition of degree
qualfication.
4. Does the amendment to rule 5 brought
in by GO (P) No.79/82 dated 8.6.1982
in reality confer a benefit on
diploma Engineers who acquired degree
qualification or does it in the guise
of conferring a benefit work hardship
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for them; and
5. On the totality of facts of this case
and the position of his colleagues
who were also recruited as diploma
holder engineers, whether any
injustice has been done to the
petitioner."
While considering Point Nos.1 to 5 aforementioned, the
Division Bench came to the following conclusion :
"...In the absence of a statutory rule,
which prescribes maintaining separate
seniority lists, it is not open to the
government to contend that the Asst.
Exe. Engineers who come from the
category of diploma holder Engineers and
degree holder junior engineers are two
different and distinct classes. As the
Rules stand, there is only an insistence
upon the minimum number of years of
service to become eligible for
appointment as Asst. Exe. Engineers.
Similarly the rules also contemplate
that in the case of promotion to Exe.
Engineers a person should satisfy the
requirement of having satisfactorily
worked for a period of not less than
three years as Asst. Exe. Engineer."
Noticing the fact that the amendment in Rule 5 was made
on or about 8.6.1982, the Division Bench observed :
"21. If we examine Rule 5 we find that
this rule deals with diploma holders who
after appointment as Assistant
Executive Engineers acquired the degree
qualification or AMIE qualification.
This rule will not be applicable to the
case of the present petitioner who
acquired his degree qualification as
well as AMIE qualification prior to his
appointment as Asst. Exe. Engineer.
He acquired his degree qualification in
November, 1975 and his AMIE
qualification in summer 1975. He was
elected as Member of the Institute of
Engineers on 11.5.1976, while he was
appointed as Asst. Exe. Engineer with
retrospective effect from 17.6.1978.
This means that the petitioner acquired
the degree qualification prior to his
appointment by transfer as Asst. Exe.
Engineer. He is outside the ambit of
the category of persons contemplated
under sub-rule (a) of Rule 5.
The way in which Rule 5 has been
amended a number of times, and the
manner in which in 1982 Notes 1 and 2
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are added at the end of the Rule clearly
indicates that the amendment is a
motivated amendment brought into
existence after the petitioner agitated
his claim for promotion as Executive
Engineer. It is brought into existence
with a view to defeat his claim. The
petitioner is perfectly justified in his
contention that when he succeeded in the
various writ petitions and he got his
services regularized and got his
promotion. In answer to his
representation for promotion as Exe.
Engineer, the Government introduced the
amendment by issuing G.O. (P) No.79/82
dated 8.6.1982
Despite such a finding while considering the Point Nos.
3 and 5 aforementioned, the Division Bench opined :
"27. Point Nos. 3 and 5: The Kerala
Engineering Service (General Branch)
Rules, as intimated while discussing
point nos. 1 and 4, do not provide for
giving any weightage to diploma
holders for their service rendered as
diploma holder Engineers, if they
acquire a degree qualification
subsequently Rule 5 as it now stands
works hardship for diploma holder
engineers who subsequently acquired
degree qualification. The amendment
made in 1977 by G.O. (P) No.185/77/PW
dated November 1977 published in SRO
No.1163/77 in the Kerala Gazette dated
13.12.1977 does not confer any benefit
by enabling such diploma holders for
being considered for promotion in the
quota of degree holder Asst. Exe.
Engineers. In reality it makes them
forgo all their seniority as diploma
holder Engineers and compete with such
younger people who might not have even
studied engineering by the time these
people had entered Government service.
Normally where a diploma holder
working in a particular category in
which degree holders are also working
acquires the degree qualification,
namely, the higher qualification,
justice requires that at least two-
thirds or half of his service as
diploma holder engineer should be
given as weightage for the purpose of
reckoning his seniority vis-‘-vis
graduate engineers. As the Rules now
exist, the so-called benefit conferred
is not a benefit, but it is more a
detriment. We hold point No.3
accordingly.
28. We hasten to add that as the
petitioner acquired his qualification
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of B.Sc. engineering and AMIE prior to
his appointment as Asst. Exe.
Engineer, his seniority for the
purpose of promotion to the category
of Executive Engineer should be
reckoned from the first date of his
service as Asst. Exe. Engineer,
namely, 17.6.1978."
In the aforementioned fact situation, the Division
Bench declared that the amendment to Rule 5 introduced by
G.O. (P) No.7982 dated 8.6.1982 is arbitrary,
discriminatory and unconstitutional as it was found
violative of Articles 14 and 16 of the Constitution of
India.
The declaration of amendments in Rule 5 as
unconstitutional was an obiter dicta.
Therein, the petitioner was awarded seniority in the
case of Graduate Assistant Executive Engineer w.e.f.
17.6.1978 i.e. with effect from the date of his
appointment, as he had already acquired the qualification
of degree in engineering by that time. He was further
directed to be promoted to the post of Executive Engineer
treating his claim as a graduate degree-holder Assistant
Executive Engineer with effect from 17.6.1978 but despite
the same, he had not been granted a weightage for his
service as Assistant Executive Engineer before he acquired
the degree qualification. The decision of the Division
Bench of the Kerala High Court in T.R. Krishnan (supra)
must also be considered having regard to the factual
matrix obtaining therein. In the said writ petition, the
writ petitioners alleged mala fide against the authorities
concerned which also found favour of the Bench. We have
seen earlier that the Division Bench came to the
conclusion that the amended rule had no application in his
case as he had been treated to be a Graduate Degree-holder
Assistant Executive Engineer with effect from 17.6.1978
and in that view of the matter, it was not necessary for
the Division Bench to go into the question of validity of
Rule 5.
INTERPRETATION OF THE RULES :
A bare perusal of Rules 4 and 5 of the Kerala
Engineering Service (General Branch) Rules would clearly
go to show that the avenues for promotion for the degree-
holders and the diploma-holders were separate. By reason
of the amendment incorporated in the rule promotions were
sought to be given to those who although were diploma-
holders passed the Degree in Engineering examination or
Part A and Part B of AMIE by way of accelerated
promotions. Only upon acquiring such a degree, the
diploma-holder became eligible to exercise his option to
be considered for promotion in the stream of the officers
belonging to the degree-holders. As such diploma-holder
officers who acquired a higher qualification during
service had either to opt for promotion for the degree-
holders quota or for diploma-holders’ quota. Once he opts
for a promotion in the degree-holders’ quota, rule of
seniority would apply as he acquired the qualification
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therefor subsequently.
FINDINGS :
The Full Bench of the Kerala High Court while
deciding the matters which are the subject-matters of
Civil Appeal No.884 of 200, unfortunately did not
address itself to the aforementioned question. If its
finding to the effect that "for promotion to the post of
Assistant Executive Engineer...there is no restriction
imposed on the Assistant Engineers who acquired degree
while they are in the feeder category for promotion as
Assistant Executive Engineer" is correct, the same would
make Rule 4(b) of the Kerala Public Health Engineering
Service Rules otiose. The said rule has to be read in its
entirety. The scheme contained therein must be given its
full effect. The purport and object of such an amendment
was made in the year 1982 was required to be given deeper
consideration. The High Court failed to notice that a
conjoint reading of Rule 4 and Rule 5 clearly establishes
that a diploma-holder Assistant Engineer who subsequently
acquired a degree qualification would be eligible for
promotion as Assistant Executive Engineer, only in the
event he fulfills the conditions precedent therefor and
not otherwise and in terms thereof namely his case could
be considered only after the cases of promotion of those
who had been holding such degree qualification have been
considered. By reason of acquisition of higher
qualification only the diploma-holders would not become
entitled to be considered for promotion as they in terms
of the rules were to be regarded juniormost in the
seniority list of the Graduate Assistant Engineers.
The Full Bench of the High Court, furthermore,
unfortunately construed Rule 4 in isolation without taking
into consideration the effect of Rule 5(b) in terms
whereof it has clearly been laid down that the vacancies
in the category of Assistant Executive Engineers were to
be filled up from amongst the Assistant Engineers in the
ratio of 75 : 20 : 5 from amongst the degree-holders,
diploma-holders and certificate-holders. There cannot be
any doubt whatsoever that as separate seniority lists were
being maintained in respect of the degree-holders,
diploma-holders and certificate-holders; once a diploma-
holder acquiring a qualification of a degree in
engineering opts for being included in the stream of the
degree-holders, he would have to be placed at the bottom
of the relevant seniority list.
We, for the reasons aforementioned, cannot accept the
views of the High Court.
However, so far as Civil Appeal Nos.890-93 of 2002
are concerned, it appears that amendment to the rule had
never come into force and, therefore, it is difficult to
accept the contention of the learned counsel for the State
that the degree-holders and diploma-holders were to be
treated at par with the other cases. In fact, in terms of
the rules applicable to the case of Harbour Engineering
Branch of the Kerala Port Trust, two categories, namely,
degree-holders and diploma-holders have been placed
separately, namely, Group-A and Group-B and as such the
persons holding the respective qualifications would be
governed by the rules as existing then. In that view of
the matter, the respondents would be in the same position
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as in the case of T.R. Krishnan (supra) inasmuch a right
vested in them, in absence of rule having been given a
retrospective effect could not have been taken away. The
State in exercise of its power under Article 309 of the
Constitution of India may give retrospective effect to a
rule but the same must be explicit and clear by making
express provision therefor or by necessary implication but
such retrospectivity of a rule cannot be inferred only by
way of surmises and conjectures.
We are, however, not oblivious of the fact that rules
framed by different States may be different. Different
Rules may also be framed having regard to the nature of
the job and other relevant factors.
In N. Suresh Nathan and Another vs. Union of India
and Others [(1992) Supp. 1 SCC 584)], this Court held:
"In our opinion this appeal has to
be allowed. There is sufficient material
including the admission of respondents
diploma-holders that the practice
followed in the department for a long
time was that in the case of diploma-
holder Junior Engineers who obtained the
degree during service, the period of
three years’ service in the grade for
eligibility for promotion as degree-
holders commenced from the date of
obtaining the degree and the earlier
period of service as diploma-holders was
not counted for this purpose. This
earlier practice was clearly admitted by
the respondents diploma-holders in para
5 of their application made to the
Tribunal at page 115 of the paper book.
This also appears to be the view of the
Union Public Service Commission
contained in their letter dated December
6, 1968 extracted at pages 99-100 of the
paper book in the counter-affidavit of
respondents 1 to 3. The real question,
therefore, is whether the construction
made of this provision in the rules on
which the past practice extending over a
long period is based is untenable to
require upsetting it. If the past
practice is based on one of the possible
constructions which can be made of the
rules then upsetting the same now would
not be appropriate. It is in this
perspective that the question raised has
to be determined."
In that case, the scheme under the recruitment rules is
almost identical as in terms thereof three years’ service in
the cadre required for degree-holders as a qualification for
promotion in the said category was held to mean three years’
service in the grade as a degree-holder.
In M.B. Joshi and Others etc. vs. Satish Kumar Pandey
and Others etc. [(1993) Supp. 2 SCC 419], the decision in N.
Suresh Nathan (supra) was distinguished holding :
"11. A perusal of the above
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observations made by this Court clearly
show that the respondents diploma-
holders in that case has admitted the
practice followed in that department for
a long time and the case was mainly
decided on the basis of past practice
followed in that department for a long
time. It was clearly laid down in the
above case that if the past practice is
based on one of the possible
constructions which can be made of the
rules then upsetting the same now would
not be appropriate. It was clearly said
"it is in this perspective that the
question raised has to be determined".
It was also observed as already quoted
above that the Tribunal was not
justified in taking the contrary view
and unsettling the settled practice in
the department. That apart the scheme of
the rules in N. Suresh Nathan case (1992
Supp (1) SCC 584 : 1992 SCC (L&S) 451 :
(1992) 19 ATC 928) was entirely
different from the scheme of the Rules
before us. The rule in that case
prescribed for appointment by promotion
of Section Officers/Junior Engineers
provided that 50 per cent quota shall be
from Section Officers possessing a
recognised degree in Civil Engineering
or equivalent with three years’ service
in the grade failing which Section
Officers holding Diploma in Civil
Engineering with six years’ service in
the grade. The aforesaid rule itself
provided in explicit terms that Section
Officers possessing a recognised Degree
in Civil Engineering was made equivalent
with three years’ service in the grade.
Thus, in the scheme of such rules the
period of three years’ service was
rightly counted from the date of
obtaining such degree. In the cases in
hand before us, the scheme of the rules
is entirely different."
It was further observed :
"...The Rules in our case do not
contemplate any equivalence of any
period of service with the qualification
of acquiring degree of graduation in
engineering as was provided in express
terms in N. Suresh Nathan case (1922
Supp (1) SCC 584 : 1992 SCC (L&S) 451 :
(1992) 19 ATC 928) making three years
service in the grade equivalent to
degree in engineering. In our opinion,
the Rules applicable in the cases before
us clearly provide that the diploma-
holders having obtained a degree of
engineering while continuing in service
as Sub-Engineers shall be eligible for
promotion to the post of Assistant
Engineer in 8 years of service and quota
of 10 per cent posts has been earmarked
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for such category of persons."
The said decision was followed in Satpal Antil etc. vs.
Union of India and another [(1995) 4 SCC 419], D. Stephen
Joseph vs. Union of India and Others [(1997) 4 SCC 753],
Anil Kumar Gupta and Others vs. Municipal Corporation of
Delhi and Others [(2000) 1 SCC 128] and A.K. Raghumani Singh
and Others vs. Gopal Chandra Nath and Others [(2000) 4 SCC
30].
Almost an identical view has been taken by a Bench of
which two of us were parties in Pramod K. Pankaj vs. State
of Bihar [2002 (9) SCALE 813] = [JT 2003 (9) SC 333],
wherein this Court noticing the decisions in N. Suresh
Nathan (supra), M.B. Joshi (supra), Satpal Antil (supra)
and D. Stephen Joseph (supra) held :
"THE POLICY DECISION :
The policy decision of the State as
contained in the resolution of the State
Government dated 17.1.1979 is not in
question. It is accepted that the said
resolution was adopted in the special
situation that 20% quota which was
earlier reserved for graduate engineers
was abolished, as a result whereof they
suffered immense prejudice. Clause
’Cha’ of the said circular states that
the promotion on the vacant posts of
Assistant Engineer under the quota
mentioned in clause ’Ka’ i.e. 3% would
be made on the basis of seniority. In
absence of any statutory provision or
rules made thereunder or under the
proviso appended to Article 309 of the
Constitution of India, it is trite, that
once an incumbent is appointed to a post
according to rules his seniority has to
be counted from the date of his
appointment.
The aforementioned Resolution
dated 17.1.1979 was introduced as a
special measure. The promotion of the
holders of the post of Junior Engineers
to the post of Assistant Engineer was
not to be done on selection basis. No
written examination was to be held nor
any oral interview was to be taken. No
criteria whatsoever was laid down for
selecting the candidates. For the
purpose of granting promotion to the
post of Assistant Engineer in the
aforementioned category, only two
conditions which were required to be
fulfilled on the relevant date are : (a)
the employee must be holder of a degree
or must have passed an equivalent
examination; (b) he must have completed
five years of service in the post of
Junior Engineer.
A plain reading of the
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aforementioned resolution dated
17.1.1979 would clearly go to show that
no further requirement was prescribed
therefor. Clause ’Cha’ of the said
resolution merely stated that with
regard to inter se seniority of these
Junior Engineers, the decision be taken
after obtaining opinion from the
Personnel Department.
In the aforementioned premise, it
was obligatory on the part of the
Personnel Department itself to take a
firm decision laying down the criteria
for fixation of inter se seniority in
absence of any statute or rules having
the force of law. Admittedly, the
Personnel Department did not issue any
such order. The said resolution dated
17.1.1979 was an executive order passed
by the State of Bihar in terms of
Article 162 of the Constitution of
India. By reason of the said policy
decision, the Personnel Department alone
was delegated with the power to lay down
the criteria for determining the inter
se seniority. The Personnel Department
neither in fact delegated the said power
to the Water Resources Department nor in
law could do the same. The purported
order dated 22.12.1992 issued by the
Water Resources Department was,
therefore, illegal having been rendered
by an authority which had no
jurisdiction therefor."
It is well settled that classification on the basis of
educational qualification is a reasonable one and satisfies
the doctrine of equality as adumbrated in Article 14 of the
Constitution of India.
In The State of Jammu & Kashmir vs. Triloki Nath Khosa
and others [AIR 1974 SC 1], a Constitution Bench of this
Court held :
"On the facts of the case,
classification on the basis of
educational qualifications made with a
view to achieving administrative
efficiency cannot be said to rest on any
fortuitous circumstances and one has
always to bear in mind the facts and
circumstances of the case in order to
judge the validity of a classification.
The provision in the 1939 Rules
restricting direct recruitment of
Assistant Engineers to Engineering
graduates, the dearth of graduates in
times past and their copious flow in
times present are all matters which can
legitimately enter the judgment of the
rule-making authority. In the light of
these facts, that judgment cannot be
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assailed as capricious or fanciful.
Efficiency which comes in the trial of a
higher mental equipment can reasonably
be attempted to be achieved by
restricting promotional opportunity to
those possessing higher educational
qualifications and we are concerned with
the reasonableness of the classification
not with the precise accuracy of the
decision to classify nor with the
question whether the classification is
scientific. Such tests have long since
been discarded..."
[See also Government of West Bengal vs. Tarun
K. Roy and Ors., 2003 (9) SCALE 671]
The State as an employer is entitled to fix separate
quota of promotion for the degree-holders, diploma-holders
and certificate-holders separately in exercise of its rule
making power under Article 309 of the Constitution of India.
Such a rule is not unconstitutional. The State may,
therefore, in our opinion, cannot be said to have acted
arbitrarily by giving an option to such diploma-holders who
acquired a higher qualification so as to enable them to
either opt for promotion in the category of degree-holder or
diploma-holder. Such option was to be exercised by the
concerned officer only. He, in a given situation, may feel
that he would be promoted in the diploma-holders quota
earlier than degree-holders quota and vice versa but once he
opts to join the stream of the degree-holders, he would be
placed at the bottom of the seniority list.
We, therefore, are of the opinion that the impugned
judgments cannot be sustained which are set aside
accordingly. We direct that the cases of all the concerned
employees be considered strictly in terms of the extant
rules. This direction shall also govern the appeal
preferred by the State of Kerala.
The appeals are disposed of accordingly. No costs.