C.K. Saji v. Managing Director, Kerala Water Authority, and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 14TH DAY OF OCTOBER 2019 / 22ND ASWINA, 1941** ## **WP(C).No.14860 OF 2013(F)** ## **PETITIONER/S:** **C.K.SAJI ASSISTANT EXECUTIVE ENGINEER, P.H.SUB DIVISION, KERALA WATER AUTHORITY, OTTAPALAM, PALAKKAD DISTRICT.** **BY ADVS. SRI.N.N.SUGUNAPALAN (SR.) SRI.S.SUJIN** ## **RESPONDENT/S:** **1 MANAGING DIRECTOR KERALA WATER AUTHORITY, JALA BHAVAN, THIRUVANANTHAPURAM - 695004.** ***2 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM, PIN - 695 001.** **(THE 2ND RESPONDENT IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 21.06.2013 IN I.A NO.7900/13.)** ****3 ADDL.R3.RATHISH KUMAR.S AGED 44 YEARS, S/O SADASIVAN UNNITHAN,ASSISTANT EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, WATER SUPPLY SUB DIVISION, CHOONDY, PUHENCRUZ, VADAYAMPADY P.O., ERNAKULAM, 682308 RESIDING AT VIJAYA BHAVAN, VATTEKUNNAM, EDAPPALLY NORTH, ERNAKULAM 682024 **(ADDL R3 IS IMPLEADED AS PER ORDER DATED 29.07.2019 IN IA NO.1/2019.)** **R1 BY SRI.GEORGE MATHEW, SC, KERALA WATER AUTHORITY R1 BY SRI.P.BENJAMIN PAUL, SC, KERALA WATER AUTHORITY R3 BY ADV. ELVIN PETER P.J.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.10.2019, ALONG WITH WP(C).20655/2018(F), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.14860 OF 2013(F) 2** ## **JUDGMENT** ## This writ petition is filed seeking the following reliefs:- _I. to issue a Writ of mandamus or any other appropriate writ or order or direction to quash Ext.P10 proceedings dated 15.05.2013 issued by the first respondent._ _II. To issue a Writ of mandamus or any other appropriate writ or order or direction directing the respondents to re-fix the petitioner under degree quota as on 06.01.2000 by applying the very same principle and the procedure adopted to re-fix the seniority of Sri. A.Purushan and Sri. K.K.Madhu and pass appropriate orders;_ _III. To issue a Writ of mandamus or any other appropriate writ or order or direction directing the respondents to include the petitioner in the list of Assistant Executive Engineer considered for promotion as Executive Engineer._ 2. The petitioner, who had joined the Kerala Water Authority as Assistant Engineer on 23.12.1986. He was a diploma holder. It is contended that the petitioner had acquired degree in Engineering in the year 1996. He had preferred a writ petition before this Court for getting his seniority reckoned by counting the entire service as Assistant Engineer. A Full Bench of this Court in a decision reported in **Manmadhan v. State of Kerala** [1999 (1) KLT 37] held that the entire service of the petitioner was liable to be counted and he was entitled to promotion in the diploma quota. The matter was taken in ## **WP(C).No.14860 OF 2013(F) 3** appeal by the State before the Apex Court. The Apex Court in **Chandravathi P.K. And Others v. C.K.Saji and Others** [(2004) 3 SCC 734] reversed the finding of the Full Bench and held that service rendered by a diploma holder cannot be tagged on with the service rendered as a degree holder and degree holders and diploma holders are two separate and distinct categories. It was further held at Paragraph 43 of the judgment as follows:- _43. The State as an employer is entitled to fix separate quota of promotion for the degree holder, 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 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 officer concerned 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._ 3. Pursuant to the direction of the Full Bench, the petitioner had been assigned seniority in the post of Assistant Executive Engineer. However, after the Apex Court had decided the issue, the petitioner's date of promotion as Assistant Executive Engineer was revised from 01.06.1997 to 15.02.2006 treating him as a degree holder. The petitioner contends that no option had been sought for or obtained ## **WP(C).No.14860 OF 2013(F) 4** from him. He therefore preferred Ext.P3 representation requesting to reassign the petitioner's seniority as Assistant Executive Engineer as on 06.01.2000 as a diploma holder and to register his options on the same day in the degree quota as per Rule 4(a) of the Kerala Public Health Engineering Service Special Rules. The petitioner preferred W.P.(C) No.10701/11 and this Court directed the respondents to consider the representation preferred by the petitioner. Thereafter, Ext.P4 order dated 25.04.2012 was passed canceling the proceedings dated 15.02.2006 and ordering that the petitioner will continue in the diploma quota as a diploma holder Assistant Executive Engineer as on 06.01.2000. His seniority was duly fixed. The petitioner submitted a further representation opting to come over to the degree quota of Assistant Executive Engineer from the date of his promotion i.e. 06.01.2000. The said representation is produced as Ext.P5. It is submitted that the Water Authority had taken a stand in W.P(C) No.11668/11 filed by a similarly situated employee that employees, who acquired degree while in service will be given an option to either remain in the quota set apart for diploma holders or to come over to the degree quota and their seniority would be fixed accordingly. It is stated that Ext.P8 judgment had been rendered by this Court accepting the said contentions and directing the Water Authority to ## **WP(C).No.14860 OF 2013(F) 5** effect corrections accordingly. However, in the petitioner's case, it is contended that the options exercised by him by Exts.P3 and P5 representations to come over to the degree quota with effect from 06.01.2000 have not been considered by the respondents. The petitioner claims that he is entitled to be considered for promotion as Executive Engineer in the degree quota and not under the diploma quota. 4. It is contended by the learned Senior Counsel appearing for the petitioner that Ext.P4 order itself would show that the petitioner had not submitted any option to either remain in the diploma quota or to come over to the degree quota. It is therefore contended that the respondents were duty bound to consider him in the diploma quota for promotion to the post of Assistant Executive Engineer and thereafter accept his option and grant him promotions in the degree quota in accordance with the same. It is submitted that pursuant to an interim order of this Court dated 31.03.2015, a review DPC has been convened and the petitioner had been provisionally promoted as Executive Engineer. It is contended that the petitioner is entitled to re-fixation of seniority taking note of his options to come over to the degree quota as on 06.01.2000 and for all consequential benefits. 5. A counter affidavit has been placed on record by the 1[st] ## **WP(C).No.14860 OF 2013(F) 6** respondent. The factual aspects of the matter are admitted. However, it is contended that Rule 4(a) of the Kerala Public Health Engineering Service Special Rules specifically provides that a person obtaining degree 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 degree in Engineering or A.M.I.E.(India) diploma possessed the qualifications mentioned in item (i) in the Annexure have been considered. The proviso states that it will be left to the option of such person to continue among those possessing the qualifications mentioned in Section B in item (ii) of the Annexure and claim promotion against the quota allotted to them. It is stated that the petitioner had been granted promotion as Assistant Executive Engineer on the strength of judgment in OP NO.10484/97 which was set aside by the Apex Court in **Chandravathi's case** (Supra). It is further stated that in view of the clear pronouncement of law by the Apex Court, the petitioner who had clearly opted by Ext.P3 to be retained in the diploma quota cannot turnaround and say that his claim for further promotion as Executive Engineer is to be considered in the degree quota. 6. The contesting 3[rd] respondent in the writ petition has filed a ## **WP(C).No.14860 OF 2013(F) 7** detailed counter affidavit. It is contended that the petitioner was entitled to exercise only one option to either remain in the diploma quota or to come over to the degree quota. Rule 4(a) specifically provided that in case the petitioner is decided to come over to the degree quota, he would be treated as the junior most in the said quota and would be entitled to promotion only in accordance with seniority. If that be so, he would be entitled to promotion as Assistant Executive Engineer only in the year 2006. The petitioner thereafter preferred Ext.P3 representation seeking inclusion in the diploma quota, he was granted promotion as Assistant Executive Engineer with effect from 06.01.2000 taking note of his option and accepting him his option as a diploma holder. It is therefore contended that there can be no further option and the inclusion of the petitioner in the degree quota and the further promotion as Executive Engineer is illegal and the petitioner is liable to be reverted. I have considered the contentions advanced. Having submitted Ext.P3 representation and availed the benefit of promotion under the diploma quota as Assistant Executive Engineer, I have no doubt in my mind that the petitioner could not thereafter claim promotion as Executive Engineer in the degree quota. The issue stands squarely covered by the decision of the Apex Court in Chandravathi's case **WP(C).No.14860 OF 2013(F) 8** (Supra). The claim raised by the petitioner is completely unsustainable. The writ petition fails, the same is accordingly dismissed. **SD/-** ## **ANU SIVARAMAN** **JUDGE** rmm **WP(C).No.14860 OF 2013(F) 9** ## **APPENDIX OF WP(C) 14860/2013** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 12-2-2004 IN CIVIL APPEAL NO.884/2002 PASSED BY THE SUPREME COURT.** - **EXHIBIT P2 TRUE COPY OF THE ORDER DATED 15-2-2006 OF THE SECOND RESPONDENT** - **EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 8-32011 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT** **EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS DATED 25-4-2012 OF THE FIRST RESPONDENT EXHIBIT P5 TRUE COPY OF THE OPTION EXERCISED BY THE PETITIONER ALONG WITH HIS REQUISITION/REPRESENTATION DATED 21-5-2012 EXHIBIT P6 TRUE COPY OF THE PROCEEDINGS DATED 13-32012 ISSUED BY THE FIRST RESPONDENT EXHIBIT P7 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENTS IN WRIT PETITION, NAMELY WPC.NO.11668/2011** **EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 28-10-2011 IN WPC.NO.11668/2011 (G).** **EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 12-4-2013 PASSED IN WPC.NO.9817/2013 EXHIBIT P10 TRUE COPY OF THE PROCEEDINGS DATED 15-5-2013. EXHIBIT P11 TRUE COPY OF THE INTERIM ORDER DATED 23.02.2015 PASSED BY THIS HON'BLE COURT.** **WP(C).No.14860 OF 2013(F) 10** ## **RESPONDENT'S/S EXHIBITS:** |**EXHIBIT R3(A):**|**TRUE COPY OF ORDER NO.**| |---|---| ||**KWA/CE/CR/KOCHI/F3/5159/04(1) DATED**| ||**11/07/2005 ISSUED BY THE CHIEF ENGINEER**| ||**(CR), KERALA WATER AUTHORITY, CENTRAL**| ||**REGION, KOCHI.**| |**EXHIBIT R3(B):**|**TRUE COPY OF ORDER**| ||**NO.KWA/JB/E.2(A)/16944/2014 DATED**| ||**25/11/2014 ISSUED BY THE CHIEF ENGINEER**| ||**(HRD & GL), KERALA WATER AUTHORITY.**| |**EXHIBIT R3(C):**|**TRUE COPY OF THE CIRCULAR**| ||**NO.KWA/JB/E2(A)/3635/2014 DATED 13/05/2014**| ||**ISSUED BY THE MANAGING DIRECTOR, KERALA**| ||**WATER AUTHORITY AND THE RELEVANT EXTRACT OF**| ||**THE SENIORITY LIST ATTAHED TO THE SAME.**| |**EXHIBIT R3 (D):**|**TRUE COPY OF THE CIRCULAR**| ||**NO.KWA/JB/E2(A)/3635/2014 DATED 13/05/2014**| ||**ISSUED BY THE MANAGING DIRECTOR, KERALA**| ||**WATER AUTHORITY AND THE RELEVANT EXTRACT OF**| ||**THE SENIORITY LIST ATTACHED TO THE SAME.**| |**EXHIBIT R3 (E):**|**TRUE COPY OF THE PROCEEDINGS**| ||**NO.KWA/JB/E2(A)/20573/2016 DATED 23/05/2018**| ||**ISSUED BY THE MANAGING DIRECTOR, KERALA**| ||**WATER AUTHORITY AND THE RELEVANT EXTRACT OF**| ||**THE SENIORITY LIST ATTACHED TO THE SAME.**| |**EXHIBIT R3 (F):**|**TRUE COPY OF G.O.NO.KWA/JB/E2(A)/3906/2016**| ||**VOL.II DATED 22/05/2019.**| |**EXHIBIT-R3(A)**|**TRUE COPY OF THE JUDGMENT DATED 28/08/1998**| ||**IN O.S 10484/1997**| |**EXHIBIT-R3(B)**|**TRUE COPY OF THE ORDER KWA/JB/E2/9481/98**| ||**DATED 13/11/1998 ISSUED BY THE WATER**| ||**AUTHORITY IMPLEMENTING THE DIRECTION ISSUED**| ||**IN EXHIBIT-R3(A) JUDGEMENT**| |**EXHIBIT-R3(C)**|**TRUE COPY OF THE ORDER KWA/JB/E2/6723/01**| ||**DATED 15/02/2006 ISSUED BY THE WATER**| ||**AUTHORITY FIXING THE SENIORITY OF THE**| ||**PETITIONER**| **WP(C).No.14860 OF 2013(F) 11** |**EXHIBIT-R3(D)**|**TRUE COPY OF THE ORDER NO.**| |---|---| ||**KWA/JB/E2(A)/6723/2001 DATED 25/04/2012**| ||**ISSUED BY THE WATER AUTHORITY**| |**EXHIBIT-R3(E)**|**TRUE COPY OF THE MEMORANDUM OF WRIT**| ||**PETITION (CIVIL) 10701/2011 FILED BY THE**| ||**PETITIONER DATED 31/03/2011**| |**EXHIBIT-R3(F)**|**TRUE COPY OF THE JUDGMENT DATED 10/06/2011**| ||**IN W.P(C) 10701/2011**| ## **// TRUE COPY //** **P.A TO JUDGE** **WP(C).No.14860 OF 2013(F) 12**