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1997 Supreme(Ker) 453
High Court of Kerala
U P Singh, S. Sankarasubban, JJ.
Public Works Engineers Association - Appellant
Versus
P T Philipose & Ors - Respondent
W.A. No. 119 of 1997
Decided On : 01-08-1997
Headnote:
SPECIAL RULES - PROMOTION - G.O. (Ms.) No. 86/94/PW and T dated 3rd October 1994 and G.O. (Ms.) No. 43/96/PW and T dated 9th February 1996 - The court upheld the validity of the G.O. (Ms.) No. 86/94/PW and T dated 3rd October 1994 and G.O. (Ms.) No. 43/96/PW and T dated 9th February 1996. The G.O. (Ms.) No. 86/94/PW and T dated 3rd October 1994 ordered that Assistant Engineers possessing a diploma would not be eligible for promotion to the category of Assistant Executive Engineers over a graduate Assistant Engineer having longer service unless rendered ineligible for promotion to the post of Assistant Executive Engineer. The G.O. (Ms.) No. 43/96/PW and T dated 9th February 1996 restructured the Engineering service, introducing two new categories viz. Special Grade Assistant Executive Engineer and Special Grade Executive Engineer. The court found that the orders did not amend or alter the Special Rules, but only supplemented and filled up the lacuna in the said rule, which became necessary because of the circumstances arising out of the bifurcation of the Public Works Department.
Fact of the Case:
The appeals were filed against a common judgment of the learned Single Judge disposing of a number of Original Petitions relating to promotion to the posts of Assistant Executive Engineers in the Public Works (Roads and Buildings) Department. The engineers working in the erstwhile Public Works Department were governed by the Kerala Engineering Service (General Branch) Rules and the Kerala Engineering Subordinate Service (General Branch) Rules. The Government issued G.O. (P) No. 27/90/PW and T, dated 29th March 1990, bifurcating the Public Works Department into two departments viz. Irrigation Department and Public Works (Roads and Buildings) Department with effect from 1st April 1990. The Government order further contained certain clauses with respect to the service conditions of the employees working in the department. Several original petitions under Art.226 of the Constitution of India were filed by the diploma holders challenging Exts. P-7 and P-12 orders.
Finding of the Court:
The court held that the G.O. (Ms.) No. 86/94/PW and T dated 3rd October 1994 and G.O. (Ms.) No. 43/96/PW and T dated 9th February 1996 did not amend or alter the Special Rules, but only supplemented and filled up the lacuna in the said rule, which became necessary because of the circumstances arising out of the bifurcation of the Public Works Department. The court set aside the judgment of the learned Single Judge quashing the orders.
Ratio Decidendi: The court held that the G.O. (Ms.) No. 86/94/PW and T dated 3rd October 1994 and G.O. (Ms.) No. 43/96/PW and T dated 9th February 1996 did not amend or alter the Special Rules, but only supplemented and filled up the lacuna in the said rule, which became necessary because of the circumstances arising out of the bifurcation of the Public Works Department.
Final Decision: The court set aside the judgment of the learned Single Judge quashing the G.O. (Ms.) No. 86/94/PW and T dated 3rd October 1994 and G.O. (Ms.) No. 43/96/PW and T dated 9th February 1996, and allowed the appeals.
U.P. Singh, C.J.
1. By order dated 10th April 1997, we allowed the appeals upholding the validity of G.O. (Ms.) No. 86/94/PW and T dated 3rd October 1994 (Ext.P-7) and G.O. (Ms.) No. 43/96/PW and T dated 9th February 1996 (Ext. P-12) and now we state the reasons for our conclusion.
2. These appeals have been filed against a common judgment of the learned Single Judge disposing of a number of Original Petitions relating to promotion to the posts of Assistant Executive Engineers in the Public Works (Roads and Buildings) Department. Some of these appeals have been preferred by the State of Kerala and the rest by the graduate Assistant Engineers,
3. The engineers working in the erstwhile Public Works Department were governed by the Kerala Engineering Service (General Branch) Rules (hereinafter called 'Special Rules') and the Kerala Engineering Subordinate Service (General Branch) Rules. Originally, the Kerala Engineering Service (General Branch) contained only four categories viz. (1) Chief Engineers (2) Superintending Engineers (3) Executive Engineers and (4) Assistant Executive Engineers. The category of Assistant Engineers originally included in the subordinate service was subsequently, by an amendment, included in the Kerala Engineering Service (General Branch) as the fifth category. The Assistant Engineers in the Public Works Department consisted of graduates, diploma holders and certificate holders. They were either directly recruited or promoted from the post of I Grade Overseer. The next promotion post is the post of Assistant Executive Engineer. The method of appointment to the post of Assistant Executive Engineer was by recruitment on transfer from Assistant Engineers. As already stated, by notification G.O.(P) No. 41/94/PW and T dated 3rd June 1.994, the Special Rules were amended and the post of Assistant Engineer was also brought into the State Service. Consequently, the Assistant Executive Engineer's post was to be filled up from the post of Assistant Engineer by promotion. The requisite qualifications for the post of Assistant Executive Engineer are prescribed under R.4(a) of the Special Rules, According to the qualifications, the incumbent should possess any degree or diploma as mentioned In item (i) or (it) of the annexure or must possess Draftsman's certificate of the College of Engineering, Guindy or S. M. T. Overseers certificate and must have put in a total service of 25 years in the department, out of which 12 1/2 years must be as Assistant Engineer. R.5 (b) of the above Rules deals with the promotion to the posts of Executive Engineers and Assistant Executive Engineers. R.5 (b) of the above Rules states as follows:
"5 Promotion as Executive and Assistant Executive Engineers. (a) * * *
(b) Vacancies in the category of Assistant Executive Engineers will be filled up from among Assistant Engineers in the ratio of 75:20:5 respectively from among--
(1) persons possessing any of the qualifications mentioned in item (i) or in section A in item (it) 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".
Thus, under R.5(b), vacancy in the category of Assistant Executive Engineer is to be filled up from Assistant Engineers having degree, diploma or certificate in the ratio of 75:20:5. Note 1 to the Rule says that the separate quota allotted to the certificate holders will be abolished as soon as the holders of the certificate are absorbed as Assistant Engineers. Thereafter, the ratio will revert to 3:1 on cadre strength between degree holders and diploma holders. It is now submitted that since all the certificate holders have been absorbed, the ratio that is applied is 3:1 between degree holders and diploma holders. Note 2 to the Rule states that the ratio fixed for promotion to the cadre of Assistant Executive Engineers will be applie
