Manmadhan, M.K. vs Kerala State Electricity Board and Others

K.K. Usha, J.—These Original Petitions are referred for consideration of a Larger Bench under reference order dated 25th October 1995. According to the Bench which referred these matters, following points arise for consideration:

(A) Whether the decision in O.P. 5002/88 requires reconsideration?

(B) In the absence of a regulatory rule regarding promotion of Diploma holders acquiring degree, how their seniority is to be worked out; and whether their seniority while holding Diploma should be reckoned for the purpose of promotion in the category of Degree holders, in view of the decision of the Division Bench in W.A. No. 106/80.

(C) Should there be two separate seniority list, one for Degree holders and the other for Diploma holders, or there shall only be a single seniority list as held in O.P. No. 2172/89 dated 30th September 1991.

The sole Petitioner in O.P. 15008/93 and the two Petitioners in O.P. 1392/95 were Assistant Executive Engineers in the service of Kerala State Electricity Board, (hereinafter referred to as ''the Board'') at the time of filing the Original Petitions. They challenge the action taken by the Board in not granting them promotion in the degree quota on the basis of their entire period of service in the category of Assistant Engineer. They also seek as a consequential relief earlier promotion to the higher post.

Petitioners are governed by the Special Rules for Kerala Engineering Service (General Branch) as adopted by the Board. The above Rules would provide that the post of Assistant Executive Engineers shall be filed up by recruitment by transfer from Assistant Engineers and the post of Executive Engineers by promotion from Assistant Executive Engineers. The qualifications prescribed to hold the post of Assistant Executive Engineers and Executive Engineers are as follows:

Assistant Executive 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 S.M.T. Overseers Certificate and must have put in a total service of 25 years in the department out of which 121/2 years must be as Assistant Engineer. Executive Engineer Must possess any degree or diploma mentioned in item (i) or in Section A under item (ii) in the Annexure.

Item (i) in Section A of the Annexure is a Degree in Engineering. Item (ii) is Diploma in Engineering. Rule 5 deals with promotion as Executive and Assistant Executive Engineers. It reads as follows:

Promotion as Executive and Assistant Executive Engineers:

(a) A person who obtains the A.M.I.E. (India) Diploma or a pass in Section A and B of the A.M.I.E. of the Institution of Engineers (India) in Civil or Mechanical Engineering after appointment as Assistant Executive Engineer shall be eligible for promotion as Executive Engineer only after the claims of all Assistant Executive Engineers who, on the date of his obtaining the A.M.I.E. (India) Diploma or a pass in Section A and B of the A.M.I.E. 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-

(1) Persons possessing any of the qualification mentioned in item (i) or in Section A in item (ii) of the Annexure.

(2) Those possessing any of the qualifications mentioned in Section B in item (ii) of the Annexure, and

(3) Those possessing the Draftsman Certificate of the College of Engineering, Guindy or S.M.T. Overseer''s Certificate.

A person, who, while holding the post of Assistant Engineer passes Sections A and B of the A.M.I.E. (India) Examination or a Degree in Engineering of a recognised 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 A.M.I.E. (India) Examination, or a Degree in Engineering of a recognised 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.

Petitioner in O.P. 15008/93 entered service of the Board as II Grade Overseer on 24th August 1962 and thereafter promoted as I Grade Overseer on 4th July 1964. At the time of his entering service, he was a Diploma holder in Civil Engineering. He was promoted as Junior Engineer, which was later re-designated as Assistant Engineer on 1st April 1967. While holding the post of Assistant Engineer, he obtained Degree in Civil Engineering in June, 1979. In Ext. P-1(a) final gradation list of Assistant Engineers (Civil) as on 1st October 1985, Petitioner is ranked as No. 64 above the 3rd Respondent-Somasekharan Nair, who entered service as Assistant Engineer only on 3rd July 1971 and therefore ranked as No. 68. There is a ratio of 3:1 between Degree holders and Diploma holders for appointment to the category of Assistant Executive Engineers. While the 3rd Respondent was appointed as Assistant Executive Engineer on 24th May 1989, Petitioner was appointed as Assistant Executive Engineer only on 21st March 1990. 3rd Respondent was thus given appointment in preference to the Petitioner on the ground that he had obtained Degree earlier than the Petitioner and therefore he was considered as senior to the Petitioner in the Degree quota. Even though the Petitioner had made a representation on 28th March 1988 before the 1st Respondent requesting him to promote the Petitioner in preference to his juniors, the representation was not favourably considered.

In the meanwhile, a Bench of this Court had occasion to consider in O.P. 5002/88, the validity of the amendment brought to the Kerala Engineering Service (General Branch) under G.O. (P) No. 79/82, dated 8th June 1982 restricting the scope of appointment of those Diploma holders-Assistant Engineers who acquired Degree while in service for promotion as Assistant Executive Engineer by providing that they shall be eligible for promotion against the Degree quota only after the claims of all those who, on the date of passing the Degree, possess the Degree qualification. Under judgment dated 19th February 1990, the Division Bench declared the above provision which had the effect that seniority in the Degree quota can be counted only from the date on which Diploma holder acquired Degree qualification, as illegal. It was directed that a Diploma holder, when he acquires Degree qualification, has to be considered for appointment to the category of Assistant Executive Engineer taking into consideration his entire service in the category of Assistant Engineer for the purpose of his seniority in the feeder category. Special Leave Petition, SLP (Civil) No. 15472/90 filed before the Supreme Court against the above judgment, was dismissed on 20th December 1990. Petitioner, therefore made a further representation, Ext. P-4 dated 29th January 1993 before the 1st Respondent requesting him to give him his due date in the category of Assistant Executive Engineer and grant him seniority with effect from 22nd February 1989, above the date of promotion of his juniors. This representation was rejected under Ext. P-5 order dated 14th September 1993 for the reason that a Diploma holder who acquires Degree qualification in Engineering subsequently will get promotion as Assistant Executive Engneer in Degree quota only after the claim of graduate Assistant Engineers in the category as on the date of his acquisition of Engineering degree are concerned. Ext. P-5 order was communicated to the Petitioner under Ext. P-6 dated 30th September 1993. Petitioner obtained an order for impleading the 3rd Respondent in a representative capacity on behalf of all affected persons and to give notice to such persons by public advertisement in C.M.P. 27178/93. Notice was thus served by publication in newspaper.

In O.P. 1392/95, as mentioned earlier, there are two Petitioners. They were first appointed under the service of the Board as I Grade Overseers on 4th July 1964 and they were promoted as Junior Engineers (later redesignated as Assistant Engineer) with effect from 24th April 1965. During the relevant time, they were Diploma holders. While holding the post of Assistant Engineer, 1st Petitioner obtained Degree in Engineering in June 1979 and 2nd Petitioner in June 1978. 1st Petitioner was promoted as Assistant Executive Engineer in Degree quota by order dated 21st March 1990 and the 2nd Petitioner by order dated 13th February 1990. They were considered for such promotion in the Degree quota only with effect from the date of their promotion as Assistant Engineer. Later, it was found that 1st Petitioner was eligible for promotion in the category of Assistant Executive Engineer in the Diploma quota on 5th September 1989 and the 2nd Petitioner on 13th February 1990. Their promotion was thus changed into Diploma quota with effect from the above dates.

The final gradation list, Ext. P-1 dated 27th May 1993 of the Assistant Engineers as on 1st October 1985 would show that Petitioners 1 and 2 are ranked as 28 and 38 and their date of promotion as 6th October 1966. 3rd Respondent was ranked much below the Petitioners as rank No. 56. But, since 3rd Respondent had obtained A.M.I.E. Section A and B in November, 1969, he was promoted as Assistant Executive Engineer on 22nd February 1989 in the Degree quota in preference to the Petitioners. Petitioners made Exts. P-4 and P-5 representations dated 8th August 1994 seeking seniority in the category of Assistant Executive Engineer with effect from 22nd February 1989 above their juniors in the category of Assistant Engineers and who got promotion as Assistant Executive Engineer earlier than the Petitioners for the reason that they acquired A.M.I.E. or Degree qualification earlier than the Petitioners. By Ext. P-6 reply dated 29th October 1994, their representations were rejected by the 2nd Respondent. By order in G.M.P. 2515/95, Petitioner was permitted to implead 3rd Respondent in a representative capacity and to take out notice to similarly affected persons by publication. Notice by publication in newspaper was effected.

Counter-affidavits have been filed by the Board as well as contesting Respondents in these Original petitions. During the pendency of O.P. 15008/93, on the basis of an order parsed by a Bench of this Court in C.M.P. 27179/93, Petitioner was promoted as Executive Engineer by Board''s order dated 2nd November 1995. Thereafter, he was promoted as Deputy Chief Engineer and he retired from service while holding that post. According to the Petitioner, if the prayers in his Original Petition are allowed, he would have been entitled to get promotion to the category of Chief Engineer before his retirement. Therefore, learned Counsel for the Petitioner would submit that the Petitioner is entitled to notional promotion, arrears of salary and refixation of retirement benefits on the above basis.

During the pendency of O.P. 1392/95, on the basis of directions contained in the order dated 25th October 1995 in C.M.P. 2514/95, both the Petitioners were given promotion as Executive Engineers by order dated 2nd November 1995. 1st Petitioner got a further promotion as Deputy Chief Engineer and he retired holding the above post. 2nd Petitioner retired from service holding the post of Executive Engineer. According to them, if their seniority in the category of Assistant Executive Engineers is refixed on the basis of the claim put forward in the Original Petition, they would have got promotion to higher posts before their retirement.

We heard learned Counsel for the Petitioners, standing counsel for Kerala State Electricity Board and also counsel appearing for party Respondents. Admittedly, under Ext. P-2 judgment in O.P. 5002/88, a Bench of this Court has declared the amendment to Rule 5 introduced by G.O.(P) No. 79/82, dated 8th June 1982 as arbitrary, discriminatory and unconstitutional being violative of Articles 14 and 16 of the Constitution. If this position continues, there is no dispute that all the prayers made by the Petitioners are only to be granted. But, it is contended by the learned Counsel for the Respondents that the above decision requires reconsideration in the light of the later decision of the Supreme Court in N. Suresh Nathan and another Vs. Union of India and others, . It is also pointed out that while deciding O.P. 5002/88, an earlier Bench decision of this Court in W.A. 106/80 was not brought to the notice of the learned Judges who rendered the judgment in O.P. 5002/88. In the above case, this Court considered the question of promotion to the category of Assistant Engineers under the service of Cochin Port Trust from among Junior Engineers. The contention raised by a Diploma holder Junior Engineer who acquired Degree qualification while in service, that he is entitled to be considered for promotion as Assistant Engineer in the Degree quota on the basis of his overall seniority in the combined list of Junior Engineers, was not accepted. This Court took the view that a Diploma holder Junior Engineer, who while in service, acquires the graduation qualification, can either take his chance of promotion in the quota available to the Diploma holder Junior Engineers, or he can elect to go over to the channel reserved for graduates, in which event, law, justice and fairness require that he should take rank as the juniormost amongst the graduate Junior Engineers in service as on the date of acquisition of the graduation qualification by him. On the other hand, in O.P. 5002/88, another Bench of this Court took a different view on the claim of a Diploma holder acquiring Degree while working in the feeder category for promotion to the higher posts. It was held that there is no justification in compelling such an officer to surrender a portion of his service in the feeder category while considering his seniority in the feeder category for promotion to the higher category only for the reason that during part of the service in the feeder category, he was a Diploma holder. But, at this juncture, we may have to note one aspect that what was considered by a Bench of this Court in O.P. 5002/88 is the legality of the very same provision of law with which we are concerred in these Original Petitions.

In O.P. 5002/S8, die amendment of the year 1982, bringing ill the limitation for promotion to those who acquire Degree in Engineering while in service, has been decided as unconstitutional. This decision was affirmed by the Supreme Court, since the SLP was dismissed. If that be so, we have to take it that paragraph 2 of Sub-rule (b) of Rule 5 of the Kerala Engineering Service Rules introduced as per the Government Order dated 8th June 1982, is not there in the statute book and no reliance could be made on the above provision for denying promotion to an Assistant Engineer who acquired Degree qualification to the post of Assistant Executive Engineer in the Degree quota, taking into consideration his entire service as Assistant Engineer.

We will now consider the question whether the subsequent decision of the Supreme Court in N. Suresh Nathan and another Vs. Union of India and others, has impliedly overruled the judgment in O.P. 5002/88. While considering this issue, it is relevant to note that the SLP from the judgment in O.P. 5002/88 was dismissed by the Supreme Court on 13th October 1995 about four years after the judgment in N. Suresh Nathan and another Vs. Union of India and others, was rendered. Learned Counsel for the Respondents contended that their submission on the basis of the decision in N. Suresh Nathan and another Vs. Union of India and others, is liable to be considered since, while dismissing the Special Leave Petition, Supreme Court has not given any reasons. Even though, we cannot fully agree with this contention, since, as mentioned earlier, we are concerned in these Original Petitions with the correctness of the very same provision of law which has been found unsustainable by this Court and affirmed by the Supreme Court, we proceed to consider on merits the contention raised by the Respondents on the basis of the decision in N. Suresh Nathan and another Vs. Union of India and others, .

In the above case, Supreme Court considered the recruitment rules for the post of Assistant Engineer in the Public Works Department, Pondicherry. The appointment was by direct recruitment. For direct recruits, qualification prescribed was Degree in Civil Engineering or Diploma in Civil Engineering with 3 years professional experience. For appointment by promotion, from Section Officers (later called Junior Engineers), qualification perscribed was, (1) 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 50 per cent and (2) Section Officers possessing a recognised Diploma in Civil Engineering with six years'' service in the grade-50 per cent. The dispute that arose was whether a Diploma holder Junior Engineer who obtained a Degree while in service becomes eligible for appointment as Assistant Engineer by promotion on completion of 3 years service, including therein the period of service prior to obtaining the Degree or 3 years'' service as a Degree holder for this purpose, is to be reckoned from the date he obtains the Degree. Diploma holders contended that they are entitled to include their earlier period, while the Degree holders contended to the contrary. The Central Administrative Tribunal upheld the claim of the Diploma holders. Degree holder challenged the above finding before the Supreme Court. While allowing the appeal, "Supreme Court observed as follows:

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.... The entire scheme, therefore, does indicate that the period of three years'' service in the grade required for Degree holders according to Rule 11 as the qualification for promotion in that category must mean three years'' service in the grade as a Degree holder and, therefore, that period of three years can commence only from the date of obtaining the Degree and not earlier. The service in the grade as a Diploma holder prior to obtaining the Degree cannot be counted as service in the grade with a Degree for the purpose of three years'' service as a Degree holder. The only question before us is of the construction of the provision and not of the validity thereof and, therefore, we are only required to construe the meaning of the provision. In our opinion, the contention of the Appellants Degree holders that the rules must be construed to mean that the three years service in the grade of a Degree holder for the purpose of Rule 11 is three years from the date of obtaining the Degree is quite tenable and commends to us being in comformity with the past practice followed consistently. It has also been so understood by all concerned till the raising of the present controversy recently by the Respondents. The Tribunal was, therefore, not justified in taking the contrary view and unsettling the settled practice in the Department.

A reading of the entire judgment would clearly show that there was no challenge against the vires of the provision in the Rules which will have the effect of Diploma holders forgoing a portion of their service to claim promotion in the Degree quota. On the other hand, Supreme Court was concerned only with the construction to be given to the terms of the special rules.

We will now consider a later decision of the Supreme Court in M.B. Joshi and Others Vs. Satish Kumar Pandey and Others, . The controversy in this case was whether seniority amongst the Diploma holders Sub Engineers who acquired Degree in Engineering during the period of service qualifying them for promotion in 8 years to the post of Assistant Engineer, is to be determined from their date of appointment on the post or from the date of acquiring the required educational qualification. There was no specific rule governing such situation. The minimum period for Sub-Engineer to qualify for promotion to the post of Assistant Engineer was 12 years for Diploma holders and 8 years for such Sub Engineers who obtain degree of graduation in the course of service. State Government had been applying the principle of counting the seniority of Graduate Sub Engineers from the date of their continuous officiation irrespective of the date on which such Diploma holder Sub Engineer acquired Degree of graduation in Engineering. The period of 12 years was being reduced to 8 years in the case of those Diploma holder Sub Engineers who obtained Degree of Engineering during the period of their continuous service as Sub Engineer. Promotion granted to Sub Engineers who acquired Degree while in service on the above principle was challenged before the Madhya Pradesh Administrative Tribunal. The Tribunal set aside the promotion holding that seniority of Diploma holder Sub Engineers acquiring Degree of graduation in Engineering for inclusion m the gradation list of Sub Engineers should be counted from the date of acquisition of graduation in Engineering and not from the dates of their initial entry as Sub Engineers. This view was not found favour by the Supreme Court. In the course of the discussion, N. Suresh Nathan and another Vs. Union of India and others, was referred and it was observed that Respondents-Diploma holders in that case had admitted the practice followed in the department for a long time and that the case was mainly decided on the basis of past practice followed in that department for a long time. If the past practice is based on one of the possible constructions which can be made of the rules then upsetting the same would not be appropriate. It was in this perspective, the question raised was considered in N. Suresh Nathan and another Vs. Union of India and others, and it was held that in the schemes of the rules available there, the period of 3 years'' service in the grade required for Degree holders according to Rule 11 as the qualification for promotion in that category must mean three years'' service in the grade as a Degree holder and therefore the period of three years can commence only from the date of obtaining Degree and not earlier. But, as mentioned earlier, it is relevant to note that in N. Suresh Nathan and another Vs. Union of India and others, , there was no challenge against the validity of the rule as arbiratry or unfair.

In M.B. Joshi and Others Vs. Satish Kumar Pandey and Others, also, we find that there was no challenge against the rule. But the Supreme Court took the view that if the period of 8 years is counted from the date of acquiring Degree, then the incentive of adding the qualification during the continuation of service and getting the advantage of acceleration in promotion in eight years would, for all practical purposes, become nugatory and of no benefit. It was therefore held that Tribunal was wrong in determining the seniority from the date of acquiring degree of Engineering and it ought to have been determined on the basis of length of service in the post of Sub-Engineer.

The latest decision of the Supreme Court referred and relied on, on this aspect before us is D. Stephan Joseph v. Union of India and Ors. 1997 4 S.C.G. 753. The question that came up for consideration in the above case was whether promotion to the post of Assistant Engineer in the 50 per cent promotion quota reserved for the person possessing Degree in Electrical Engineering from a recognised University or equivalent with 3 years regular service in the grade of Junior Engineer in Electricity Department, Government of Pondicherry. Three years'' experience as Junior Engineer in the grade is to be counted from the date of acquisition of the degree in Electrical Engineering or the length of service in the grade of Junior Engineer is to be reckoned if the incumbent, at the time of promotion to the 50 per cent quota, also possesses Degree in Electrical Engineering. The order passed by the Central Administrative Tribunal, Madras Bench that three years is not to be reckoned from the date of acquisition of Degree was challenged before the Supreme Court. Referring to N. Suresh Nathan and another Vs. Union of India and others, it was observed that the above case only indicates that past practice must be referable to the applicability of the rule by interpreting it in a particular manner consistently for some time. It was also pointed out that N. Suresh Nathan and another Vs. Union of India and others, was distinguished on the facts in M.B. Joshi and Others Vs. Satish Kumar Pandey and Others, . It was then observed that if a particular length of service in feeder post together with educational qualification enables a candidate to be considered for promotion, it will not be proper to count the experience only from the date of acquisition of superior educational qualification, because, such interpretation will violate the very purpose to give incentive to the employee to acquire higher education. The appeal was therefore dismissed. From the above, it is clear that in this case also, there was no challenge against any rule on the ground of its constitutional validity.

In O.P. 5002/88, the validity of the amendment brought under Government Order dated 8th June 1992 in Rule 5 Kerala Engineering Service (General Branch) was directly under challenge on the ground that it is arbitrary, discriminatory and unconstitutional being violative of Articles 14 and 16 of the Constitution. It is relevant to note that the above-mentioned special rules came into force on 25th May 1965. The amendment bringing in a restriction in the promotion of the Diploma holder Assistant Engineers who acquired a Degree in Engineering while holding the post of Assistant Engineer for promotion to the post of Assistant Executive Engineer, was brought in only in the year 1982, as mentioned above. The amendment was challenged in 1988 and by judgment dated 19th February 1990, this Court declared the amendment to Rule 5 as unconstitutional. Therefore, there is no question of a particular interpretation of the rule having been given consistently for a long period as in N. Suresh Nathan and another Vs. Union of India and others, Then the only other question to be considered is whether the Bench decision in O.P. 5002/88 is in conflict with another Bench decision of this Court in W.A. 106/80.

This Court considered the provisions relating to promotion to the post of Assistant Engineer in Cochin Port Trust from among non-graduate Junior Engineers who acquired degree in Engineering while in service. At the outset, we may observe that there was no challenge against the rule. On interpreting the provisions in the rule, the Division Bench held that the learned Single Judge was not right in his view that the possession of graduation qualification by a person as on the date of filling up of a vacancy of Assistant Engineer in the graduate quota, will entitle him to be considered for promotion in that quota on the basis of the overall seniority in the combined list of Junior Engineers. According to the Division Bench, it will not be correct, reasonable or fair to understand the scheme of the rule in that manner. The Division Bench took the view that the only reasonable principle on which the seniority list of those feeder category can be drawn up is the lengh of service put in by the Junior Engineer concerned as graduate Junior Engineer or as Diploma holder Junior Engineer respectively. A Diploma holder Junior Engineer, who, while in service, acquires graduation qualification, can either take his chance of promotion in the quota available for the Diploma holder Junior Engineer or he can elect to go over to the channel reserved for graduates, in which event he should take rank as the juniormost amongst the graduate Junior Engineers in service as on the date of acquisition of the graduation qualification by him, since, ranking in the graduate Junior Engineers'' list has to be on the basis of the length of service put in by the person concerned as a graduate Junior Engineer.

It is true that SLP filed from the judgment in W.A. 106/80 was dismissed by the Supreme Court. But, in O.P. 5002/88, constitutional validity of similar provision was challenged and the challenge was upheld. There was no such challenge against the validity of the rule in W.A. 106/80. The decision taken by a Bench of this Court in O.P. 5002/88 that such a provision which was brought by the amendment in Rule 5, will be arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution, has been upheld by the Supreme Court, when the SLP from the judgment in O.P. 5002/88 was dismissed. Apart from the above, the decisions of the Supreme Court in D. Stephen Joseph Vs. Union of India and others, is not against the dictum laid down in the judgment in O.P. 5002/88. On the other hand, the view expressed by the Supreme Court is that if the service before acquiring a superior educational qualification is also not taken into consideration, it will violate the very purpose to give incentive to the employee who acquired higher education. Therefore, we are of the view that the service rendered by the Diploma holder Assistant Engineers before they are acquiring Degree qualification also should be taken into consideration for appointment as Assistant Executive Engineer. As mentioned earlier, as far as the present case is concerned, in view of the judgment in O.P. 5002/88, it has to be taken that the provision in Rule 5 brought under 1982 amendment is not in the statute and all promotions and appointments are to be made without reference to such provision.

In O.P. 2172/89, learned Single Judge of this Court had occasion to consider the claim for promotion to the post of Assistant Executive Engineer in Harbour Engineering Branch of Ports Department made by a Diploma holder Assistant Engineer who acquired Degree qualification while in service as Assistant Engineer. The special rules applicable to Harbour Engineering Branch of the Kerala Ports Service are applicable to the various services in the Harbour Engineering Department. Under the said rule, one of the methods of appointment to the post of Assistant Executive Engineer is by transfer from the category of Assistant Engineers of the Harbour Engineering Branches of Kerala Ports Subordinate services. The qualifications prescribed are (1) B.Sc. Degree in Engineering (Civil) of a recognised University of India or (2) Associate Membership Diploma of the Institution of Engineers (India) in Civil Engineering. It is also provided that an Assistant Engineer with Degree qualification should have worked for not less than three years as an Assistant Engineer. Assistant Engineers with Diploma in Civil Engineering are also entitled to be posted as Assistant Executive Engineers by transfer, provided they have a minimum period of 7 years'' service out of which 5 years shall be as Assistant Engineer. A ratio of 3 : 1 of the total posts of Assistant Executive Engineers shall be applied between Graduates and Diploma holders in the matter of appointment of Assistant Executive Engineers.

The Petitioner in O.P. 2172/89 entered service as Assistant Engineer as a Diploma holder. He took Degree in Engineering in 1986. By that time, he had to his credit, 6 1/2 years of service as Assistant Engineer. On acquiring Degree qualification, he wanted to be treated as Degree holder Assistant Engineer with 6 1/2 years experience in November, 1986. His request was turned down on the ground that in order to consider his case, under the category of Degree holders, he has first to get entry in that category, which can be done only on his option. His case as graduate Engineer will be considered only after considering the claims of all persons who were in that category on the date of his acquisition of qualification or a later date, which he may choose. Learned Judge considered the question whether graduate Engineers and Diploma holders were to be governed by two separate seniority lists as contended by the Department and whether such a view is supported by the provisions of the general rules or the special rules. After elaborately considering the provisions, the learned Judge came to the conclusion that there is nothing, in the special rules, enjoining the Government or Head of the Department to maintain two separate seniority lists. Learned Judge noted that under the scheme of the service rules where a person from the subordinate service is appointed to the State service, it is always appointment by transfer and not a case of promotion. As mentioned earlier, the existing special rules did not provide for two seniority lists of graduates and diploma holders. Rule 28(b)(i)(7) of the General Rule cannot also have application in the case, since Assistant Engineers, whether degree holders or diploma holders belong to the same category. Apart from the above, in the case of appointment by transfer, the question of promotion does not arise. Learned Judge took the view that when vacancy in the cadre of Assistant Executive Engineer arises, depending on the qualification and experience as on the date of vacancy, appointment should be effected in accordance with the ratio of 3:1 between degree holders and diploma holders. Reference was made to the Bench decision in O.P. 5002/88 and it was held that the experience gathered by the Petitioner while he was a diploma holder, cannot be wiped away while considering him for appointment as Assistant Executive Engineer in the quota of graduates.

We are in full agreement with the view taken by the learned Judge that no two separate seniority lists would be required. A common seniority list has to be prepared on the basis of the date of entry in service to the feeder category and as and when vacancy arises in the post of Assistant Executive Engineer, appointment by transfer has to be made from among the degree holders and diploma holders by applying the ratio on the basis of their qualification on the date on which the vacancy arises.

O.P. No. 15008/93

Petitioner was promoted as Junior Engineer (later redesignated as Assistant Engineer) on 1st April 1967. He obtained degree in June, 1979. In Ext. P-1 (a) seniority list of Assistant Engineers as on 1st October 1985 published under Ext. P-1 order dated 27th May 1993, Petitioner is shown as Sl. No. 64 with date of promotion as 3rd July 1971. 3rd Respondent acquired degree earlier than the Petitioner. Therefore, he was appointed as Assistant Executive Engineer on 24th May 1989 whereas the Petitioner was appointed on 21st March 1990. Petitioner''s representation Ext. P-4 dated 29th January 1993 for assigning an earlier date for appointment as Assistant Executive Engineer, taking into consideration his entire service as Assistant Engineer, was rejected under Ext. P-5 order which was communicated to the Petitioner by Ext. P-6 order. In the provisional seniority list of Assistant Executive Engineers (Civil) as on 30th April 1995 published as per Board''s order dated 14th June 1995, 3rd Respondent is shown as Sl. No. 10 with date of promotion 29th May 1989 and the Petitioner is shown as Sl. No. 45 with date of promotion 21st March 1990.

During the pendency of this Original Petition, on the basis of an order passed by a Bench of this Court in C.M.P. 27179/93, Petitioner was promoted as Executive Engineer by Board''s order dated 2nd November 1995. Thereafter, he was promoted as Deputy Chief Engineer and he retired from service in the above post. According to the Petitioner, if he had been granted his rightful promotion in the category of Assistant Executive Engineer in the degree quota, he would have got promotions to the higher posts much earlier and he could have retired from service as Chief Engineer. He therefore prays that he is entitled to notional promotion, arrears of salary and fixation of retirement benefits on that basis.

The facts pleaded regarding the date of appointment of the Petitioner and 3rd Respondent as Assistant Executive Engineer etc., are not in dispute in this case. The only point argued was whether the principle laid down by this Court in the judgment in O.P. 5002/88 could be applied in this case. According to the Respondents, the decision in O.P. 5002/88 has to be reconsidered and that the belated claim put forward by the Petitioner for earlier appointment to the post of Assistant Executive Engineer cannot be accepted.

We have already come to the conclusion that as a result of the judgment in O.P. 5002/88, it has to be taken that the amendment brought in the year 1982 to Rule 5 of the Special Rules is to be treated as not introduced in the Special Rules at all. If that be so, the Petitioner was entitled for appointment to the post of Assistant Executive Engineer on the basis of his total period of service as Assistant Engineer before appointment was given to the 3rd Respondent. Petitioner''s claim cannot be rejected on the ground of delay as seniority list of Assistant Engineers was published only on 27th May 1993 and the provisional seniority list of Assistant Executive Engineers only on 14th June 1995. Respondents 1 and 2 are directed to consider the accelerated promotion which the Petitioner could have obtained in higher post on the above basis and pass appropriate orders thereon as expeditiously as possible. There will be a further direction to revise Petitioner''s retirement benefits on the above basis, if such refixation is required. We make it clear that the Petitioner will not be entitled to any arrears of salary on this basis.

O.P. No. 1392 of 1995

In this Original Petition, there are two Petitioners. They were appointed as Junior Engineers (later redesignated as Assistant Engineer) on 24th April 1965. They were diploma holders at that time. Petitioners acquired degree in B. Sc. Engineering in June 1979 and June 1978 respectively. They were appointed as Assistant Executive Engineers in degree quota on 21st March 1990 and 13th February 1990 respectively. Later, their promotions were modified as in diploma quota with effect from 5th September 1989 and 13th February 1990 respectively. In Ext. P-1 (a) final seniority list of Assistant Engineers on 1st October 1985 published as per Ext. P-1 order dated 27th May 1993, Petitioners 1 and 2 were shown as Sl. Nos. 28 and 38 with date of promotions 6th October 1966. 3rd Respondent who is impleaded in a representative capacity, is shown as Sl. No. 56 with date of promotion 14th December 1970. 3rd Respondent, who had obtained degree in Engineering in November 1969, was given appointment as Assistant Executive Engineer on 22nd February 1989. Even though, Petitioners had submitted representations dated 27th February 1985 and 27th November 1985 for appointment as Assistant Executive Engineer, no orders were passed. Subsequently, in the light of the judgment of this Court in O.P. 5002/88, Exts. P-4 and P-5 representations dated 8th August 1994 were filed for giving them earlier date of appointment as Assistant Executive Engineer. These representations were rejected under Ext. P-6 order dated 29th October 1994.

During the pendency of the Original Petition, a provisional seniority list of Assistant Executive Engineers (Civil) as on 30th April 1995 was published by the Chief Engineer by order dated 14th June 1995 in which 3rd Respondent is shown as Sl. No. 5 with date of promotion 22nd February 1989 and the Petitioners were shown as Sl. Nos. 25 and 35 with date of promotion 5th September 1989 and 13th February, 1990.

Pursuant to order passed by this Court on 25th October 1995 in C.M.P. 2514/95, Petitioners were given promotion as Executive Engineers by Board''s order dated 2nd November 1995. Later, 1st Petitioner got promotion as Deputy Chief Engineer and he retired from service holding the above post. 2nd Petitioner also retired from service, but holding the post of Executive Engineer. According to the Petitioners, if the seniority from the date of first appointment to the category of Assistant Engineer was taken into consideration for appointment as Assistant Executive Engineer in the degree quota, they would have got promotion to higher posts before their retirement.... They therefore seek notional promotion and revision of retirement benefits.

In this case also, Respondents put forward contentions similar to those raised by the Respondents in O.P. 15008/93. For the same reasons which we have given in O.P. 15008/93, we are inclined to grant the prayer made by the Petitioners in this Original Petition also. Therefore, there will be a direction to Respondents 1 and 2 to reconsider the date assigned to the Petitioners for appointment to the post of Assistant Executive Engineers taking into consideration their entire period of service as Assistant Engineers for appointment in the quota due to degree holders and pass an order granting them notional promotion in higher posts on the above basis. There will be a further direction to revise and refix the pensionary benefits due to the Petitioners, if it is so required on the basis of the revised dates of promotion to the higher posts, as expeditiously as possible. It is made clear that Petitioners will not be entitled to any arrears of salary on the basis, of the accelerated promotion they may obtain as a result of implementing this judgment.

The Original Petitions are allowed to the above extent.