2004 Supreme(SC) 179

2004(8) Supreme 860
SUPREME COURT OF INDIA
(From Kerala High Court)
V.N. Khare, CJI., S.B. Sinha and S.H. Kapadia, JJ.
Chandravathi P.K. & Ors. -Appellants
versus
C.K. Saji & Ors. -Respondents
Civil Appeal No. 884 of 2002
With
Civil Appeal Nos. 885-887, 888, 889 and 890-893 of 2002
Decided on 12-2-2004
Counsel for the Parties :
For the Appearing Parties : K. Sukumaran, P. Krishnamoorthy, T.L.V. Iyer, Mathai M. Paikeday, Sr. Advocates, Ms. Karthika S., Nishe Rajen Shonker, B.V. Deepak, John Mathew, Advocate for K.S. Sasiprabhu, Romy Chacko, Rajiv Mehta, G.R.K. Prasad, Md. Wasay Khan, D. Mahesh Babu, Ramesh Babu M.R., Ms. Prasuna, P.I. Jose, T.G.N. Nair, Satya Mitra Garg, Ms. Manju Aggarwal, M.P. Vinod, Ajay K. Jain and Srinivash, Advocates.

Headnote:SERVICE LAW-Kerala Public Health Engineering Service Rules-Rule 4-Kerala Engineering Service (General Branch) Service Rules-Rule 5-Promotion as Executive and Assistant Engineers-Two different quotas for promotion from amongst the diploma holders and degree holders-Diploma holders claiming weightage in service rendered by them prior to their acquisition of degree qualification in the matter of promotion or transfer to higher posts-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-Division Bench of the High Court declared that the amendment to Rule 5 introduced by G.O. (P) No. 7982 dated 8.6.1982 is arbitrary, discriminatory and unconstitutional-Whether State can 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-(No).

       Held : 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 therefor subsequently. (Para 30)

       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 the would have to be placed at the bottom of the relevant seniority list. (Paras 31 and 32)

       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. (Paras 43 and 44)