The judgment established that the preference for graduate juniors over non-graduate seniors for promotion was discriminatory and violated Art.14 and 16 of the Constitution of India.

1. The question which the petitioner, a Senior among Junior Engineers (now Assistant Engineers) but a non-graduate, asks is the same which Bhagwati J., posed on behalf of persons like the petitioner in the decision in Mohd. Shujat Ali v. Union of India, AIR. 1974 SC. 1631,

"I am senior to the graduate Supervisor who is intended to be promoted. I am more suitable than he is. It is no doubt true that I am a non-graduate, but my not being a graduate has not been branded as a disqualification. I am regarded fit for promotion and, like the graduate Supervisor, I am equally eligible for being promoted. My technical equipment supplemented by experience is considered adequate for discharging the functions of Assistant Engineer. Then why am I being denied the opportunity for promotion and the graduate Supervisor is preferred?"

There cannot be any doubt about the answer after the decision of a Division Bench of this Court in Abdul Basheer v. Karunakaran, ILR.1981(2) Kerala 526. It can only be an invalidation of the rule which provides for this preference for the graduate junior.

2. Now to the facts, which makes the above question relevant and the only answer obligatory. The petitioner, a diplomat entered service as an Overseer in Kerala Engineering Subordinate Service (Electrical Wing) and was promoted in his turn as per the Special Rules as Junior Engineer on 17-4-1971 by Ext R3(a) order. He could and should have been promoted regularly to that vacancy on 10-10-1969. That is clear from Ext. P1 list, which gives his date of promotion notionally as 10-10-1969. Ext. R3(a) ordered the promotion only provisionally, not because of the existence of any of the factors provided for under the relevant rules which enable an appointment to be made out of turn in an emergency or without regard to qualifications or claims of others or to save some money by avoiding regular promotion. It was so done apparently because the administrative practice had been that for a long time past. That was not meant to deprive the incumbent of his seniority is certain because in the list of Junior Engineers as on 1-4-1978, he was assigned notional date of promotion as 10-10-1969. In short, what the petitioner got by his promotion whether on 17-4-1971 or on 10-10-1969, was not a stop-gap or fortuitous promotion. It was not a windfall promotion.

3. Respondents 3 and 4, who were originally on the party array, and respondents 5 and 6, who came by orders on CM P. Nos. 8716 of 1983 and 13027 of 1983, are graduates who were appointed in 19-3-1974 and later as Junior Engineers. All of them are graduates. They were shown as junior to the petitioner in Ext. P1 provisional gradation list of Junior Engineers as on 1-4-1978. The petitioner was rank No. 13 whereas respondents 2, 3 and 4, were 30.31 and 32 in that list. They would ordinarily have been appointed as Assistant Engineers (now Assistant Executive Engineers) according to the Special Rules promulgated on 6-2-1967 only later than the petitioner. But on 19-2-1974 the Government issued G.O. Ms. 24/74/PW dated 19-2-1974, introducing a note to R.2 of the Engineering Service (Electrical Wing) Rules, to the following effect:

"Note: 50% of the total number of posts of Assistant Engineers (Electrical) shall be reserved for those Junior Engineers possessing any of the qualifications mentioned in items 1 to 3 of the Annexure. In their absence the posts shall be filled up by those possessing any of the qualifications mentioned in items 4 and 5 of the Annexure."

4. The petitioner who was the seniormost awaiting promotion was superceded when a vacancy arose in 1976 and his junior holding 28th rank was promoted, because of his graduation. The next vacancy was to arise in 1981. The petitioner hoped that he would get it, because even according to 1:1 ratio provided in the note, every alternative vacancy has to be filled up by an undergraduate. Finding that the State wanted to fill up all promotion posts of Assistant Executive Engine