Lal.E.T vs Rajendra Prasad

Mohammed Nias.C.P. J.

These appeals are filed against the common judgment dated 17.12.2021 in WP(C)No.23070 of 2021. The brief facts necessary for the disposal of the writ appeals are as follows:-

The writ petitioner joined the service of the 1st respondent-University as Overseer Grade II (Civil) on 18.05.1993 and was later promoted as Overseer Grade I (Civil) on 12.05.1998. In 2002, he obtained Diploma in Mechanical Engineering and was given additional charge with respect to the duties in the mechanical cadre and the challenge against the said shifting from civil department to mechanical department was repelled by this Court by Ext.P1(b) judgment dated 28.05.2004. He was posted as Overseer Grade I (Mechanical) and was later promoted as Assistant Engineer (Mechanical) on 15.05.2005 and thereafter promoted as Assistant Executive Engineer (Mechanical) with effect from 7.2.2012 and the said promotion was reassigned with effect from 25.01.2008, pursuant to Ext.P1(c) judgment. The post of Executive Engineer fell vacant on 31.05.2020 and the petitioner claims the said post contending that he is the senior most candidate for promotion and in spite of the same the 4th respondent in the writ petition was promoted as per Ext.P2 dated 02.06.2020. The sheet anchor of the petitioner's contentions is that the post of Executive Engineer has to be filled up treating the Assistant Executive Engineers of the different branches as the feeder category instead of limiting the same to the post of Assistant Executive Engineer (Civil). The writ petitioner has also a further contention that Ext.P7 gazette notification dated 16.08.2003 by which Ext.P5 Statutes were amended is not supported by Ext.P6 resolution taken by the General Council of the University, and therefore, according to him, Ext.P7 notification is valid only as regards Statute 3(2) of the Statutes and therefore the post of Executive Engineer going by Statute 1 in Ext.P5 should be filled up by promotion of Assistant Engineer (since redesignated as Assistant Executive Engineer (Civil) from all the branches based on seniority.

The University had filed a counter affidavit stating that when Ext.P5 First Statutes were issued in 1976, there was only civil wing in the department of University and that it was only in 1981 that the Mechanical wing came in to existence as per Ext.R1(b) (SRO 623/1981 dated 6.4.1981) and the qualifications and method of appointment for the post of Assistant Executive Engineer (Mechanical) were fixed. The petitioner was promoted as Assistant Executive Engineer (Mechanical) as per the provisions of Ext.R1(b) and that as per Ext.P7, the term 'Assistant Engineer ' wherever it occurs was substituted with 'Assistant Executive Engineer (Civil) and that with Ext.P7 amendment, the feeder category for the post of Executive

Engineer became Assistant Executive Engineer (Civil) and that the qualifications for the post of Executive Engineer is B.Sc Degree in Engineering (Civil) or alternate qualification. It was also contended that the Civil and the Mechanical Engineering branches were entirely different with respect to the nature of works and that there is a separate seniority list

maintained for both Civil and Mechanical branches and thus the claim of the petitioner for promotion as Executive Engineer is not tenable going by the Statute. The 4th respondent in the writ petition, who was promoted has since retired. The Executive Engineer appointed thereafter got impleaded in the writ petition as additional 5th respondent. The service details of the additional 5th respondent and the petitioner are as follows:-

Sl.No

Description of Cadre  (writ

Petitioner)

Date of entry

Description of Cadre

(appellant-5th

respondent)

Date of

entry

1

Overseer Grade II(Civil)

18/05/93

Overseer Grade I(Civil)

16/02/89

2

Overseer Grade I (Civil)

12/05/98

Asst.Engineer(Civil)

01/07/97

3

Overseer Grade I(Mech.)

28/05/04

Asst.Exe.Engineer (Civil)

01/04/17

4

Asst.Engineer (Mech)

15/01/05

Asst.Exe.Engineer(HG)

(Civil)

01/06/20

5

Asst.Exe.Engineer (Mech.)

25/01/08

Executive Engineer

03/01/22

Therefore, the 5th respondent contended that while the writ petitioner has 25 years' and 8 months of service, the 5th respondent has 32 years' and 11 months of service and he is due to retire on 31.05.2022. It is further submitted by the additional 5th respondent that a Diploma in Mechanical Engineering obtained by the writ petitioner cannot be treated as an equivalent qualification to B.Sc Degree in Engineering (Civil). The expression Assistant Engineer under Statute 3(2) has been amended as Assistant Executive Engineer (Civil) and therefore, the feeder category for the post of Executive Engineer can only be Assistant Executive Engineer (Civil). The 5th respondent thus urged to dismiss the writ petition and sustain his appointment as Executive Engineer.

The learned Single Judge who considered the writ petition held that since the expression Assistant Engineer was not qualified at the relevant point of time, either with the expression civil engineering, electronics, mechanical or instrumentation and thus the intention in Ext.P7 was to introduce nomenclature for Assistant Executive Engineer namely the Assistant Engineer in all the streams. The learned Single Judge also held that if the expression Assistant Engineer with five years' experience for the purpose of promotion to the post of Executive Engineer is read as only civil, it would take away the valuable right of the employees of the engineers who are aspiring for promotion as there is only one post of Executive Engineer. Therefore, the the learned Single Judge held that it has to be read in such a manner not to take away the rights of the writ petitioner and all other similarly situated engineers in the stream of mechanical for consideration to the post of Executive Engineer. Accordingly, the writ petition was partly allowed quashing the word/expression “wherever” (in the notification Ext.P3 dated 30.09.2003) and issued a mandamus to consider the petitioner also for promotion to the post of Executive Engineer along with the similarly situated persons.

5.Being aggrieved, the 5th respondent who has been appointed as Executive Engineer filed WA No.107 of 2022, the Kerala Agricultural University filed WA No.195 of 2022 and the writ petitioner in so far as it declined to post him as Executive Engineer filed WA No.110 of 2022.

6.We have heard Sri.Aravindakshan Pillay and Sri.Peter Jose Christo, the learned counsel for the appellant in WA No.107 of 2022, the learned senior counsel Sri.Jaju Babu, assisted by the learned standing counsel for the Kerala Agricultural University Sri.Robson Paul and Sri.Jawahar Jose, the learned counsel appearing for the writ petitioner/appellant in WA No.110 of 2022.

It is worthwhile to extract Clause 3(1) of the First Statute introduced by SRO 1122/76 dated 23.10.1976, which deals with the qualification for the post of Executive Engineer:

“1. B.Sc. Degree in Engineering (Civil) of the Kerala/Calicut University or any other degree recognized as equivalent thereto

OR

Associate Membership Diploma of the Institute of Engineering (India) in Engineering

II. 5 years experience in a post of the Grade of”Assistant Engineer.”

The writ petitioner, the appellant in WA No.195 of 2022 contends that the General Council, the supreme authority empowered to amend the Statute of the University, amended the 1st Statute on 18.11.2000 amending Clause 3(2) which dealt with the qualifications of Assistant Engineer alone without amending Clause 3(1) and thus according him the petitioner who worked as Assistant Executive Engineer (Mechanical) for more than five years' is qualified to be appointed as Executive Engineer being the senior most person. It is to be noticed that the amendment was approved by the Chancellor and was published in the gazette as per Ext.P7 dated 30.09.2003. We note that till then, the post of Assistant Engineer was the feeder category of the post of Assistant Executive Engineer. The intention of the legislation was to introduce a new post as Assistant Executive Engineer (Civil) as a promotion post of Assistant Engineer (Civil) and the same was to be the feeder category for promotion to the post of Executive Engineer. Accordingly, the Assistant Executive Engineer (Civil) with an experience of five years' with educational qualification either B.Sc Degree in Engineering (Civil) of the Kerala/Calicut University or any other degree equivalent or recognized thereto or Associate Membership Diploma of the Institute of Engineers (India) in Engineering are alone eligible for promotion to the post of Executive Engineer. Admittedly, the petitioner was working as an Assistant Executive Engineer (Mechanical) for five years'. In the light of the above finding we hold that the direction to delete the word “wherever”, in the judgment impugned was wholly inappropriate as it would lead to results not contemplated by the amendment besides frustrating the very object of the amendment. In as much as the petitioner does not have experience as Assistant Executive Engineer in the civil wing, the writ petitioner cannot be considered as eligible for being promoted as Executive Engineer.

The finding of the learned Single Judge that any Assistant Engineer (since been re-designated as Assistant Executive Engineer) of any branch having five years' experience is eligible to be considered for promotion as Executive Engineer cannot be accepted. It is to be noticed that even the petitioner's case is that the amendment proposed by the General Council of the University was only in respect of Assistant Engineer under Statute 3(2) of Ext.P5, as per which the feeder category for the post of Executive Engineer is the Assistant Engineer. By Ext.P6 the expression Assistant Engineer under Statute 3(2) has been amended as Assistant Executive Engineer(Civil). Therefore, the only inference possible is that the feeder category for the post of Executive Engineer will only be Assistant Executive Engineer (Civil).

It is also to be noticed that the challenge to the amendment, Ext.P7 of the year 2003, was made only in the year 2021 by the writ petitioner and his challenge on any count ought to have been repelled on the ground of delay and laches alone. We also note the contention of the Kerala Agricultural University is that the duty of the Executive Engineer is to make proposal, supervision and process payments of the civil works of the University under their control and this cannot be effectively done by a person from the electronics or mechanical cadre without work experience as Assistant Engineer/Assistant Executive Engineer in civil cadre with the requisite experience. At any rate it was not for this Court to choose the qualification as preferable or not when the employer has chosen to restrict it only to the Assistant Executive Engineer belonging to the civil wing for promotion post of an Executive Engineer. We accordingly hold that the finding in the impugned judgment to the contrary is clearly an error of law liable to be interfered with.

The contention of the learned counsel for the appellant in WA No.110 of 2022, the writ petitioner, is that even as per the notification dated 22.10.1973, while fixing the qualification for appointment to the post of Junior Engineer it was specified that B.Sc. Degree in Engineering in the concerned branch was necessary and thus according to the appellant there was bifurcation of the various branches even at that point of time. This argument cannot be accepted as the said stipulation in the qualification was only to identify the person so as to know the branch to which he belongs and not for anything else. At any rate, this contention does not improve his case as the same has nothing to do with the qualification required for the post of Executive Engineer as held above.

The findings of the learned Single Judge that Ext.P7 amendment would take away the right of the petitioner and similarly situated persons for consideration for promotion the post of Executive Engineer cannot be accepted at all. It is trite that no employee has any vested right for promotion to the higher category in the absence of any enabling provision in the Statutes and Rules. A reading of Exts.P5 and Ext.P7 cannot lead to a situation where any Assistant Executive Engineer other than from the branch civil can aspire for promotion to the post of Executive Engineer. The wording of the Statute being so, any argument to the contrary from the side of the writ petitioner has to be rejected.

The upshot of the above discussion is that WA No.107 of 2022 at the instance of the 5th respondent in the writ petition is to be allowed, WA No.195 of 2022 filed by the Kerala Agricultural University is also to be allowed and the writ appeal filed by the writ petitioner, WA No.110 of 2022 is only to be dismissed. Consequently, the findings and directions in the impugned judgment are set aside and the writ petition is also dismissed.

WA No.107 of 2022 filed by the 5th respondent and WA No.195 of 2022 filed by the Kerala Agricultural University are allowed and the Writ petition is dismissed. WA No.110 of 2022 filed by the writ petitioner is dismissed.