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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.