C.K. Saji v. Managing Director, Kerala Water Authority & Rathish Kumar S.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 04TH DAY OF DECEMBER 2019 / 13TH AGRAHAYANA, 1941** ## **WA.No.2424 OF 2019** **AGAINST THE JUDGMENT IN WP(C) 14860/2013(F) DATED 14.10.2019 OF HIGH COURT OF KERALA** ## **APPELLANT/S:** **C.K.SAJI,** **ASSISTANT EXECUTIVE ENGINEER, P. H. SUB DIVISION, KERALA WATER AUTHORITY, OTTAPALAM, PALAKKAD DISTRICT, NOW WORKING AS EXECUTIVE ENGINEER, P. H. DIVISION, KERALA WATER AUTHORITY, THRISSUR.** **BY ADV. SRI.S.SUJIN** ## **RESPONDENT/S:** **1 MANAGING DIRECTOR, KERALA WATER AUTHORITY JALA BHAVAN, THIRUVANANTHAPURAM - 695 001. 2 RATHISH KUMAR S., AGED 50 YEARS S/O. SADASIVAN UNNITHAN, ASSISTANT EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, WATER SUPPLY SUB DIVISION, CHOONDY, PUTHENCRUZ, VADAYAMPADAY P. O., ERNAKULAM - 682 018, RESIDING AT VIJAYA BHAVAN, VATTEKUNNAM, EDAPPALLY NORTH, ERNAKULAM - 682 024.** **R1 BY SRI.P.BENJAMIN PAUL, SRI.ELVIN PETER.P.J, SC, KERALA WATER AUTHORITY** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WA.No.2424 of 2019** 2 ## **JUDGMENT** **K.Vinod Chandran,J.** **The appellant, an employee of the Water Authority who entered into service on the basis of his qualification of Diploma in Engineering, acquired a graduate qualification while in service. The fixation of his seniority and the option to be exercised for promotion, either under the diploma quota or under the graduate quota, is the issue agitated which has seen many rounds of litigation.** **2. The learned Single Judge declined the prayer for exercise of option in the post of Assistant Executive Engineer (AEE). The claim raised by the appellant is also for promotion to the post of Executive Engineer , by virtue of his option exercised in the cadre of AEE;** **WA.No.2424 of 2019** 3 **to be considered under the graduate stream.** **3. Admittedly, there are two streams for** **promotion available in the Kerala Water Authority; the respondent herein. The promotional hierarchy in ascending order is the Assistant Engineer, the AEE and the Executive Engineer. The appellant was appointed as an Assistant Engineer by virtue of his diploma on 23.12.1986. In the year 1996, he acquired a graduate qualification. Along with many others, the appellant was before this Court seeking promotion under the graduate quota by reckoning service prior to acquisition of the graduate qualification, i.e., service as an Assistant Engineer with a diploma.** **4. A Full Bench of this Court allowed a batch of writ petitions affirming the claim raised by the diploma holders. The appellant** **WA.No.2424 of 2019** 4 **was hence granted promotion from 01.06.1997 as is seen from Ext.R3(b) dated 13.11.1998. The contesting respondents/graduate Engineers took up the matter to the Hon'ble Supreme Court. The Hon'ble Supreme Court by a decision reported in** _**Chandravathi P.K. and Others**_ **v.** _**C.K.Shaji and others [(2004) 3 SCC 734]**_ **reversed the Full Bench. The Hon'ble Supreme Court found that when there are separate quotas for graduates and diploma holders for promotion to the higher post, a diploma holder, who acquired the graduate qualification while in service, on such acquisition of qualification has to exercise an option either to be retained in the diploma quota or shifted to the graduate quota. If the option is to be shifted to the graduate quota, then, necessarily, the person would have to be fixed at the bottom of the** **WA.No.2424 of 2019** 5 **seniority of graduate Engineers, i.e; every graduate engineers borne in the service at the time of acquisition of qualification will be above the diploma holder who acquired the graduate degree while in service. This is in accordance with Rule 4 of the Kerala Public Health Engineering Service Rules, which has been quoted by the Hon'ble Supreme Court in the cited decision.** **5. The appellant obviously did not exercise any option. The appellant alleged that without calling for any option, the respondent fixed the appellant in the seniority of Assistant Engineers under the graduate quota and considered him for promotion to the post of AEE. By Ext.P2 dated 15.02.2006, the appellant's promotion as AEE granted on 13.11.1998, by Ext.R3(b) was reviewed and cancelled. Promotion to the post** **WA.No.2424 of 2019** 6 **of AEE was reassigned as on 15.02.2006. The appellant aggrieved by the consideration of his promotion under the graduate quota, made many representations, which were not responded to. Ext.P3 is one such** **representation made in the year 2011.** **6. On the strength of Ext.P3** **representation, the appellant approached this Court again with W.P.(C) No.10701 of 2011, the memorandum of which is produced as Ext.R3(e) and the judgment passed in the above case is produced as Ext.R3(f). A reading of Ext.R3(f) indicates that the appellant filed Ext.P2 representation before the 1[st] respondent and sought a direction to consider and pass orders on Ext.P2 filed therein.** **7. In fact, the submission of the appellant before the Court was that he had** **WA.No.2424 of 2019** 7 **never exercised an option after the disposal of the case by the Hon'ble Supreme Court. Ext.P4 is the order passed in compliance of the judgment at Ext.R3(f). In Ext.P4, it was found that there was no option exercised by the appellant as found from the office records. In such circumstances, considering his prayer in the writ petition, that he should be assigned seniority under the diploma quota, his earlier assignment of seniority under the graduate quota was cancelled and his date of promotion as AEE under the diploma quota was reassigned as on 06.01.2000. This, in fact conferred on him an effective earlier date than what he would have obtained in the graduate stream. The appellant has not challenged Ext.P4 order, which is in accordance with the judgment at Ext.R3(f). Ext.P2 produced in the other writ** **WA.No.2424 of 2019** 8 ## **petition is Ext.P3 herein. In Ext.P3, the specific request made is as below:** **I humbly request that necessary favourable orders may kindly be issued at the earliest to reassign my seniority of Assistant Executive Engineer as on 06.01.2000 previous to my just junior Sri.P.K.Gopalan promoted and register my option on the same day itself to come over to the Degree quota of Assistant Executive Engineers as per 4(a) of Kerala Public Health Engineering State Service Special Rules.** **8. In fact, what the appellant wanted was a fixation of seniority in the diploma quota as an Assistant Engineer so as to obtain promotion as AEE w.e.f. 2000 and then on his promotion to the post of AEE, a further option exercised for being placed in the seniority list of AEE, among the graduate degree holders, for further promotion.** **9. We see from ground (a) and (b) of the writ petition also that there is an essential** **WA.No.2424 of 2019** 9 **dichotomy in the request made by the appellant for fixing his seniority for the purpose of promotion to the post of AEE in the diploma quota and then refixation in the AEE's quota by exercise of an option, to be continued there in the graduate quota for further promotion. This is not permissible as is seen from the cited decision of the Hon'ble Supreme Court and the proviso to the relevant Rule 4. Rule 4 is extracted here under:** **“4. Promotion as Executive and Assistant Engineers.-(a) A person who obtains degree in Engineering or AMIE (India) Diploma after appointment as Assistant Engineer shall be eligible for promotion as Executive Engineer only after the claims of all Assistant Engineers who, on the date of his obtaining the degree in Engineering or AMIE (India) Diploma, possessed the qualification mentioned in Item (i) in the annexure, have been considered.** **WA.No.2424 of 2019** 10 **(b) Vacancies in the category of Assistant Engineers shall be filled up from among those in Categories 1 or 2 in the Kerala Public Health Engineering Subordinate Service in the ration of 3:1 between** **(1) persons possessing any of the qualifications mentioned in Item (i) or in Section A in Item (ii) of the annexure; and** **(2) those possessing any of the qualifications mentioned in Section B in Item (ii) of the annexure or those possessing the SMT Overseer's Certificate, every fifth vacancy being allotted to the latter and the rest to the former.** **A person who while holding (any of the posts in Categories 1 and 2 of the Kerala Public Health Engineering Subordinate Service) passes Sections A and B of AMIE (India) Examination shall be eligible for promotion as Assistant Engineer against the quota allotted for those possessing the qualifications mentioned in Item (i) or Section A in Item (ii) of the annexure only after the claims of all those who, on the date of his passing AMIE (India) Examination,** **WA.No.2424 of 2019** 11 **possessed the qualifications mentioned in Item (i) of the annexure have been considered:** **Provided that it will be left to the option of such persons 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.”** **10. It is an admitted fact that the feeder category for promotion to the post of Assistant Engineer was Junior Engineer which was re-designated as Assistant Engineer. Hence the rule has to be read as promotion to Assistant Executive and Executive Engineers. A reading of the Rule specifically indicates that with respect to diploma holders, who acquire the qualification of graduation while in service, an option has to be exercised to continue in the diploma stream or to be shifted to the graduate stream. This option has to be exercised at the time of** **WA.No.2424 of 2019** 12 **consideration of the first promotion, since admittedly, there is a quota for graduate engineers and diploma holders for promotion to the post of AEE's which is 75:20:5 between graduates, diploma and certificate holders.** **11. What the appellant has sought for now is the exercise of an option to be assigned seniority under the diploma quota in the cadre of Assistant Engineers and on promotion to the post of AEE, a re-option to move over to the graduate stream in the post of AEE. This is not permissible going by the Rules. The option will have to be exercised by the diploma holder who acquires the graduate qualification, the minute such qualification is acquired or at least before he is considered for promotion at the first instance, which is at the time of promotion to the post of AEE. Having exercised such an** **WA.No.2424 of 2019** 13 **option, the officer cannot be allowed to withdraw from the option on promotion or to re-opt after that.** **We hence find no reason to interfere with the judgment of the learned Single Judge. The writ appeal is dismissed. Parties to suffer their respective costs.** **Sd/K.VINOD CHANDRAN JUDGE Sd/V.G.ARUN JUDGE** SB/05/12/2019 **// True copy // P.A to Judge**