Point of Law: When subsequent Rules come and there is no provision in said Rules to enable any employee to be considered as per old Rules, matter must end there.

JUDGMENT :

The petitioners in these writ petitions are working as Operators in the Kerala Water Authority. The writ petitions have been filed seeking to direct the State of Kerala to finalise the Draft Technical Service Rules for the Kerala Water Authority and to include the category of Operators also in PSC Notifications for recruitment to the posts of Assistant Engineers.

2. For convenience, the parties and exhibits are referred to in this judgment as they are arrayed and marked in W.P.(C) No.30716/2019.

3. The petitioners state that they have been working as Operators in the Kerala Water Authority (KWA). They have B.Tech qualifications. By Ext.P1 notification dated 31.12.2012, the Kerala Public Service Commission invited applications for recruitment to the post of Assistant Engineer in the KWA. LDCs with six year experience and First and Second Grade Overseers with two years experience were made eligible to apply for the post under the 10% in-service quota. The petitioners rue that the 2nd respondent-KWA has omitted to include the category of Operators in Ext.P1 notification along with LDCs and Overseers. The PSC examination and selections is over.

4. The petitioners submitted representations requesting the KWA to include the Operators like the petitioners having six years service and prescribed qualification in the zone of consideration for selection to the post of Assistant Engineers in the in-service quota. As the Draft Technical Service Rules have not been implemented by the KWA so far, the petitioners are incapacitated to apply for appointment to the post of Assistant Engineers in the in-service quota.

5. The petitioners contend that the category of Operators are drawing salary in the same pay scale as that of the 3rd Grade Overseers and LDCs. Therefore, when 3rd Grade Overseers and LDCs are included in the PSC notification, the petitioners who are Operators could not have been excluded. The exclusion offends Article 14 of the Constitution of India.

6. There are 1726 posts of Operators in KWA. Only 345 of them would get promotion as Head Operators. Only six among them would be promoted to the post of Mechanical Superintendents. Their promotional avenues are thus limited. In the circumstances, the 1st respondent-State of Kerala is duty bound to implement the Draft Technical Service Rules. Non-consideration of Operators like the petitioners who are having sufficient educational qualification for appointment to the posts of Assistant Engineers while persons from other categories are appointed as Assistant Engineers, is highly illegal and discriminatory, contend the petitioners.

7. The petitioners pointed out that in W.P.(C) No.10988/2017, this Court had directed the Government to take a decision on the Draft Technical Service Rules. In the judgment in W.P.(C) No.9877/2014 also, this Court had directed the State of Kerala to take steps to finalise the Rules as expeditiously as possible. The respondents have given scant regard to the judgments of this Court. In the circumstances of the case, the State of Kerala is compellable to finalise the Draft Technical Service Rules and the Public Service Commission is liable to include the category of Operators for appointment to the post of Assistant Engineer against the in-service quota vacancies, contend the petitioners.

8. The Kerala Public Service Commission (PSC) resisted the writ petitions. On behalf of the PSC, it is submitted that Special Rules for the Technical Staff of the KWA have not been framed. Therefore, recruitment notification for the post of Assistant Engineers was published as per the Special Rules of Kerala Public Health Engineering Subordinate Service Rules (PHED). Recruitment rules are framed by the respective Departments of the Government in consultation with the Commission. Which should be the categories to be included as feeder categories for appointment/promotion to a post, is primarily for the employer to decide. The category of Pump Operator was not included as a