K.A. Babu and Aneesh M v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE SHIRCY V. THURSDAY, THE 31ST DAY OF AUGUST 2017/9TH BHADRA, 1939 **OP(KAT).No. 339 of 2017 (Z)** **----------------------------** AGAINST THE ORDER IN OA 919/2017 of KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM DATED 24-08-2017 PETITIONER(S)/APPLICANTS: ------------------------ 1. K.A. BABU, S/O.LATE ASOKAN.K.R,ASSISTANT ENGINEER,PUBLIC WORK DEPARTMENT,N.H.SECTION,PALAKKAD,RESIDING AT PWD AES QUARTERS,R.D.COMPOUND,THARAKKAD,PALAKKAD-678001. 2. ANEESH.M, S/O.V.GOVINDAN,ASSISTANT ENGINEER,PUBLIC WORKS DEPARTMENT, ROAD SECTION,MANNARGHAT,PALAKKAD,RESIDING AT MAMPETT(HP), KANAIYAPUZHA,PALAKKAD-678591. BY ADV. SRI.S.EASWARAN RESPONDENT(S)/RESPONDENTS: -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY,PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPURAM-695001. 2. THE CHIEF ENGINEER, PWD(ADMINISTRATION),PUBLIC OFFICE, THIRUVANANTHAPURAM-695003. 3. THE CONVENOR, DEPARTMENTAL PROMOTION COMMITTEE(HIGHER), PUBLIC WORKS DEPARTMENT,THIRUVANANTHAPURAM-695001. 4. MANISHA.P.A, W/O.PRAKASHAN.V.V,ASSISTANT ENGINEER,PWD BUILDING SECTIION, TIRUR,MALAPPURAM,RESIDING AT KRIPA,CHIRAKKAM PADAM, RAMANATTUKARA.P.O,KOZHIKODE. 5. ANIL KUMAR.A, S/O.LATE A.RAMAN,ASSISTANT ENGINEER,PWD BRIDGES SECTION, KANHANGAD,RESIDING AT ALINKIL HOUSE,NEAR KANATH TEMPLE, P.O.TALIPARAMBA,KANNUR-670141. 6. PRABHAKARAN.C, S/O.SANKARAN.C,ASSISTANT ENGINEER,PWD BUILDING SECTION, THALASSERY,RESIDING AT KRISHNAPRABHA,KSV UP SCHOOL ROAD, EADOOR.P.O,KANNUR. OP(KAT).No. 339 of 2017 (Z) ---------------------------:2: 7. BINDU MANUEL, D/O MANUEL,ASSISTANT ENGINEER,PWD BUILDINGS NORTH CIRCLE, RESIDING AT B1,GIRINAGAR,VENGERI.P.O,KOZHIKODE-673010. 8. SEEMA.C.S, W/O.VIYANKI.T.S,ASSISTANT ENGINEER(SECTION 1)NH SUB DIVISION,KANJIRAPPALLY,RESIDING AT CHURATHIL SOUPARNIKA, ARPOOKARA EAST.P.O,KOTTAYAM-686008. 9. DEEPA VARGHESE, W/O.BABY STEPHEN.G.S,ASSISTANT ENGINEER,PWD ROADS SECTION, KOTTAYAM,RESIDING AT GANAPATHIPLAKKAL,PEPRUMBAYIKKADU.P.O, KOTTAYAM-686016. 10. SHALI.MK.H, W/O.L.P.BIJURAJ,ASSISTANT ENGINEER,ROAD SECTION,PIRAVOM, RESIDING AT LOVEDALE HOUSE,KOONAMAVU.P.O,ERNAKULAM-683518. 11. BLESSY BABY, W/O.GINO JOSEPH,ASSISTANT ENGINEER(LSGD SECTION) KURAVILANGAD KADAPLAMATTOM,KOTTAYAM,RESIDING AT ARAKKAPADAVIL HOUSE, ARUNOOTTIMANGALAM.P.O,PIN-686004. 12. DEEPA.A, W/O.K.J.ABHAYAM,ASSISTANT ENGINEER(WORKS, PWD ROADS DIVISION, KOTTAYAM,RESIDING AT DEVIPRIYA HOUSE,KUZHIMATTOM.P.O, KOTTAYAM-686533. 13. SANTHOSH BABU.V, S/O.P.VASUDEVAN,ASSISTANT DIRECTOR,BUILDING DESIGN OFFICE OF THE CHIEF ENGINEER(D & A), VIKAS BHAVAN,THIRUVANANTHAPURAM, RESIDING AT NILAVU,TC-1761(1)SREE LANE,PATTOM.P.O, THIRUVANANTHAPURAM-695004. 14. PHOENIX.S.S, W/O SAVIER.J.S,ASSISTANT ENGINEER,HIGHWAYS DESIGN, DRIA BOARD,OFFICE OF THE CHIEF ENGINEER(D & A), VIKAS BHAVAN, THIRUVANANTHAPURAM,RESIDING AT NILAVU, TC-1761(1)SREE LANE, PATTOM.P.O,THIRUVANANTHAPURAM-695004. 15. FEMINA.P, W/O.RENJITH KEEZHOTH,ASSISTANT DIRECTOR, HIGHWAY DESIGN,DRIQ BOARD, OFFICE OF THE CHIEF ENGINEER(D&A), VIKAS BHAVAN,THIRUVANANTHAPURAM,RESIDING AT DEVI PRASADAM, T.C.10/1542(A),VATTIYOORKAVU.P.O,THIRUVANANTHAPURAM-695013. 16. ASHA.M, W/O.REJI.P.K,ASSISTANT ENGINEER, KERALA STATE TRANSPORT PROJECT,OFFICE OF THE PROJECT DIRECTOR,SREE BALA, KESTON ROAD,KOWDIAR,THIRUVANANTHAPURAM,RESIDING AT THAKAZHIYIL,K.P.VII/26,KUDAPPANAKUNNU, THIRUVANANTHAPURAM-695043. OP(KAT).No. 339 of 2017 (Z) ---------------------------:3: 17. LEKSHMI.P.V, W/O.P.SUBRAMANIAN,ASSISTANT DIRECTOR,HIGHWAYS DESIGN, DRIQ BOARD,OFFICE OF THE CHIEF ENGINEER(D & A),PWD, THIRUVANANTHAPURAM,RESIDIDING AT VRINDAVAN,GREEN LANE, PLAMOODU,THIRUVANANTHAPURAM-695004. 18. NKISHA.P.R, W/O.KRISHNA KUMAR,ASSISTANT ENGINEER,KSTP DIVISION, PWD,PULAMON.P.O,KOTTARAKARA,KOLLAM,RESIDING AT ALAYIL VEEDU, KILIKOLLOOR.P.O,NETHAJI NAGAR-67,KOLLAM-691004. 19. SUMA R NAIR, W/O.KRISHNA KUMAR,ASSISTANT DIRECTOR,HIGHWAYS DESIGN, DRIQ BOARD,OFFICE OF THE CHIEF ENGINEER(D & A),PWD, THIRUVANANTHAPURAM,RESIDING AT SREELASYAM,TC 15/732, CSM NAGAR,HOUSE NO.6,EDAPPANZHINJI,SASTHAMANGALAM.P.O, THIRUVANANTHAPURAM-695010. 20. ANUJA KUMARA DAS, W/O.PEROORKADA G.SUDHEESH,ASSISTANT ENGINEER, NABARD CELL,OFFICE OF THE CHIEF ENGINEER(R & B),PWD, THIRUVANANTHAPURAM,RESIDING AT RAKULS,TC 50/2287, NEMOM.P.O,THIRUVANANTHAPURAM-695017. 21. INDU.B, W/O.RAMESH RAJ.S.N,ASSISTANT ENGINEER,HIGHWAYS DESIGN, OFFICE OF THE CHIEF ENGINEER(D&A),PWD,THIRUVANANTHAPURAM, RESIDING AT 8/131,INDEEVARAM LANE, CHERUVIKKAL,SREEKJARYAM.P.O, THIRUVANANTHAPURAM-695017. 22. SURESH KUMAR.P.M, S/O.EASWARAN NAMPOODIRI.M,ASSISTANT ENGINEER,KSTP DIVISION, PWD,PULAMON.P.O,KOTTARAKARA,KOLLAM,RESIDING AT DEEPTHI, CHALAKODE.P.O,PAYYANNUR VAZHI,KANNUR-670333. 23. KAMALAKSHN PALERI, S/O.PALANKU DAMODARAN,ASSISTANT ENGINEER,KASARGODE MUNICIPALITY,KASARGODE,RESIDING AT PILNAKU HOUSE, KANDANGALI.P.O,PAYYANNUR VZHI,KANNUR-670333. 24. REENA THOMAS, W/O.JAISON.C,ASSISTANT ENGINEER,PWD BUILDING SECTION, NEYYATTINKARA,THIRUVANANTHAPURAM,RESIDING AT KALAPPILA HOUSE, KAKKAMOOLA,KALLIYYUR.P.O,THIRUVANANTHAPURAM-695020. 25. JACOB JOHN, S/O.K.M.JOHN,ASSISTANT ENGINEER,KOTTARAKARA,KOLLAM, RESIDING AT SANTHOSH BHAVAN,NEAR TB KULATHUPUZHA.P.O, KOLLAM-691310. :4: OP(KAT).No. 339 of 2017 (Z) ---------------------------- 26. BIJU.P.B, S/O.K.PAPPU,ASSISTANT ENGINEER,OFFICE OF THE PROJECT DIRECTOR,PROJECT MANAGEMENT TEAM,KERALA STATE TRANSPORT PROJECT SREE BALA BUILDINGS,KESTON ROAD,KOWDIAYAR, THIRUVANANTHAPURAM,RESIDING AT PRA 52,SANDHYA DEEPAM, SAI NAGAR,PUTHUPALLY LANE,MEDICAL COLLEGE.P.O, THIRUVANANTHAPURAM-695011. 27. SHAN.S, S/O.SALAHUDHEEN.S,ASSISTANT ENGINEER(ON DEPUTATION AS ASSISTANT TECHNICAL EXAMINER)OFFICE OF THE CHIEF TECHNICAL EXAMINER),SBTEU BUILDING,3RD FLOOR M GPO PULIMOODU, THIRUVANANTHAPURAM,RESIDING AT SHAN VILLA,MELVETTOOR.P.O, ELAPPIL VARKALAM,THIRUVANANTHAPURAM-695312. 28. BIBINJITH.V.S, S/O.V.SIVANANDAN,ASSISTANT ENGINEER,OFFICE OF THE ASSISTANT ENGINEER,BUILDING SECTION WADAKANCHERRY,THRISSUR,RESIDING AT SARAS TC 4/1904-2,PUNDIT COLONY KOWDIAR,THIRUVANANTHAPURAM-695007. 29. ABNLEMON.J.L, S/O.JAYADEEVAN NAIR,ASSISTANT ENGINEER,PROJECT PREPARATION UNIT,OFFICE OF THE CHIEF ENGINEER, DESIGNS,THIRUVANANTHAPURAM, RESIDING AT DREAM LAND,KURUMANDAL, PARAVOUR,KOLLAM-691301. *ADDL. R30 : MAYA M.S., D/O M.N. SIVADAS, 'SOPANAM', ADIMONY LANE, SOUTH JANATHA ROAD, PALARIVATTOM, KOCHI 682025 ADDL. R31 : ROY P. VARGHESE, S/O MATHEW VARGHESE, ASSISTANT E ENGINEER, PWD ROAD SECTION, KANJIRAPPALLY, KOTTAYAM, RESIDING AT PADINJARE VEETTIL, KOOTHRAPPALLY P.O., KARUKACHAL - 686540 ADDL. R32 : PRESSY P.D., W/O SUDHEER P. SUKUMAR, ASSISTANT ENGINEER, PWD ROAD SECTION, VAZHOOR, KOTTAYAM, RESIDING AT PAREKEEZHIYIL HOUSE, MANIMALA P.O, KOTTAYAM. ADDL. R33 : MATHEW VARGHESE K., S/O K.M. VARGHESE, ASSISTANT ENGINEER, PWD BUILDING SECTION, PWD, ETTUMANOOR, KOTTAYAM, RESIDING AT KKUREEKKATTU HOUSE, S. PAMPADY P.O., KOTTYAM 686521 ADDL. R34 : NAVEEN A.K., S/O A.B. KUMARAN [LATE], ASSISTANT ENGINEER, PWD ROAD SECTION, CHALAKKUDY, RESIDING AT ARAYAMPARAMBIL HOUSE, KOTHAPARAMBU P.O., KODUNGALLUR, THRISSURE 680 668 R1 TO R3 BY GOVERNMENT PLEADER SRI. PAUL ABRAHAM VAKANAL R4 TO R11 BY ADV. SMT. GIRIJA GOPAL R12 TO R29 SRI. P. NANDAKUMAR ADDL. R30 TO R34 SRI. DAVIS P.I. THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 31-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 339 of 2017 (Z) ---------------------------- ## APPENDIX ## PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1 TRUE COPY OF THE GO(MS)NO.150/65/PW DATED 17.5.1965 EXHIBIT P2 TRUE COPY OF THE GO(MS),NO.36/1994/PW & T DATED 3.10.1994 EXHIBIT P3 COPY OF O.A.919 OF 2017 ALONG WITH ANNEXURE-OA EXHIBIT P4 TRUE COPY OF THE ORDER DATED 27.6.2017 IN O.A.(EKM) NO.919 OF 20171 EXHIBIT P5 COPY OF THE INTERIM ORDER DATED 25.7.2017 IN O.A.(EKM) NO.919 OF 2017 EXHIBIT P6 COPY OF THE ORDER DATED 3.8.2017 ISSUED BY THE 1ST RESPONDENT EXHIBIT P7 COPY OF THE O.A.1763/2017 ALONG ANNEXURE EXHIBIT P8 TRUE COPY OF THE INTERIM ORDER DATED 16.8.2017 EXHIBIT P9 COPY OF THE ORDER DATED 24.8.2017 IN O.A.919 OF 2017 RESPONDENT(S)' EXHIBITS : NIL ----------------------- /TRUE COPY/ P.A. TO JUDGE ## **P.R. RAMACHANDRA MENON & SHIRCY V., JJ** ~~~~~~~~~~~~~~~~~~~~~~ O.P.( KAT) No. 339 of 2017 ~~~~~~~~~~~~~~~~~~~~~ Dated, this the 31[st] day of August, 2017 ## **JUDGMENT** ## Ramachandra Menon , J. The correctness and sustainability of Ext. P9 common interim order dated 24.08.2017 passed by the Kerala Administrative Tribunal in O.A. No. 919 of 2017 and connected cases is sought to be challenged by the applicants in the said O.A., by way of this Original Petition. 2. Heard Sri. S. Easwaran - the learned counsel for the petitioners, the learned Government Pleader appearing for the respondents 1 to 3, Smt. Girija Gopal - the learned counsel appearing on behalf of the respondents 4 to 11, Mr. Nandakumar - the learned counsel appearing for the respondents 12 to 29 and Mr. Davis - the learned counsel appearing for the additional respondent impleaded today. 3. The crux of the contentions raised by the petitioners is that, by virtue of the interim order passed by the Tribunal in clarification of the earlier orders issued on 27.06.2017, the core issue projected by _O.P.( KAT) No. 339 of 2017_ : 2 : the petitioners in the O.A. has lost significance and nothing remains to be argued in the O.A. The grievance is with regard to the filling up of the posts of Assistant Executive Engineers in the PWD Roads and Buildings Division. It is stated that the petitioners are having the requisite qualification as per the Special Rules, by possessing Diploma and seven years of service in the Department. The next higher post in the hierarchy [Assistant Executive Engineer] has to be filled up following the ratio 3 : 1; i.e. three from the Degree holders and one from the Diploma holders. However, in 1994, an Order was issued by the Government virtually giving en-bloc benefit to the Degree holders ignoring the right of the Diploma holders, whereby it was stipulated that under no circumstances would a diploma holder be promoted to the post, over the degree holder having longer service. This was sought to be challenged by filing appropriate proceedings before this Court, which has ended up in the judgment rendered in **Association of Asst. Engineers [P.W.D.] Vs. Kerala Engineering Diploma Holders Associaiton [ILR 1998 (1) Ker. 217 = 1998 KHC 216]** , whereby it was held that there was no conflict between the Government Order and the Special Rules and that the 1994 Government Order was only 'supplementary' to the Special Rule. _O.P.( KAT) No. 339 of 2017_ : 3 : According to the learned counsel for the petitioners, there is a subsequent judgment rendered by another Bench of this Court as per the decision reported in **2003 (3) KLT 325 [Kerala Irrigation Engineers Association vs. State of Kerala],** whereby the rights of the Diploma holders was protected and relief was granted accordingly. Despite the ruling rendered by the Division Bench as above, the earlier interim order passed by the Tribunal was modified and Ext. P9 came to be passed virtually directing to operate the list prepared earlier i.e. Annexure A4 list, to promote the Degree holders to the post of Assistant Executive Engineers virtually ignoring the rights and credentials of the Diploma holders. This in turn is under challenge in this O.P. 4. Smt. Girija Gopal, the learned counsel appearing for party respondents submits that the narration of the factual sequence as put forth from the part of the petitioners is not correct. It is pointed out that the declaration as to the scope of 1994 Government Order has become final in view of the judgment rendered by his Court in **ILR 1998 (1) Ker. 217 = 1998 KHC 216** [cited supra]. It was taken up before the Apex Court as well, but interference was declined and the SLP was dismissed. It is also pointed out that the subsequent ruling _O.P.( KAT) No. 339 of 2017_ : 4 : rendered by the Division Bench of this Court in **Kerala Irrigation Engineers Association Vs. State of Kerala [2003 (3) KLT 325]** is not applicable to the case in hand. Unlike the instant case, it was the PWD [Roads and Building], where separate Special Rules exist. In respect of the Irrigation Department, which was the subject matter of consideration in **2003 (3) KLT 325** [cited supra], the position is evident from paragraph 26 of the verdict, which is reproduced below for convenience of reference : “26. Faced with this situation, learned counsel for the petitioners have referred to the Government Order issued on October 3, 1994. A copy of the order, as already mentioned, is at Ext.P7 in O.P.No.17897 of 1997 (Ext.P3 in O.P.No.54 of 1998). We have examined the order. It was issued by the Government in the case of personnel working in the Public Works Department (Buildings & Roads). It was never issued for the Irrigation Department nor applied to the Officers in the Irrigations Branch. Secondly, in the order it has been mentioned that “it is necessary to issue an executive order, as the amendment to Special Rules is time consuming and will not serve the purpose”. It was further observed that the “Government are pleased to order that despite the quota prescribed in Special _O.P.( KAT) No. 339 of 2017_ ## : 5 : Rules an Assistant Engineer who possesses Diploma will not be eligible for promotion to the category of Assistant Executive Engineers over a graduate Assistant Engineer having longer service.........”. This executive order is per se contrary to the statutory rule. Its validity can be seriously questioned. The Government cannot amend a rule by an executive order. It has to act in conformity with the rule. It cannot ignore the Rule and issue an executive order to replace it. So far as the present set of cases are concerned, no such order has, in fact, been issued. However, even if one were to be issued it could be questioned as being violative of the statutory rules. In fact, it appears that the Order was issued to meet a peculiar situation that had arisen on account of the bifurcation of the department. In the present set of cases, nothing has been pointed out from the record to show that any injustice has occurred. Thus, no ground for the issue of any direction is made out. “ From the above, it is clear that the Bench noted that, unlike the PWD [Roads and Buildings] where separate Special Rules are there, a G.O. was issued supplementary to the above Special Rules in 1994, scope of which was explained by the Division Bench holding that no such Government Order was in existence in respect of the Irrigation _O.P.( KAT) No. 339 of 2017_ : 6 : Department. It was in the said circumstance, that a distinction was drawn and relief was granted in the said case, which may not come to the rescue of the petitioner. The said submission is supported by the learned counsel appearing for the additional respondents 12 to 29 as well, stating that, pursuant to the above observation, the need for amendment of the Rules in respect of the Irrigation Department was felt by the Government and it was brought about by incorporation of 'Note (2)' bringing in similar supplementary provision as contained in 1994 Government Order. The said Government Order is not at all contrary to the Rules and it being supplementary as declared by the Division bench, there is no conflict between the two; by virtue of which the contention that 'Executive Orders cannot have any overriding effect over the Special Rules', is not applicable to the case in hand. A submission in similar manner is made by Mr. Davis, the learned counsel appearing for the additional respondent as well. 5. It is further brought to the notice of this Court that as per the Rules, the petitioners were not qualified in so far as they are having no requisite service/experience in the Grade of Assistant Engineer, to be qualified for being considered for promotion to the post of Assistant Executive Engineer. The learned counsel for the _O.P.( KAT) No. 339 of 2017_ : 7 : petitioners submits that the said submission does not have any merit in so far as the Rule only says about '7 years of service' and not 7 years of service as Assistant Engineer. The petitioners having entered in service of the Department way back in 2000 and 2003, they are having the requisite extent of '7 years of service' and that they are duly qualified. This Court finds that in the case of promotion to the post of Assistant Executive Engineer to Executive Engineer, it is clearly stipulated under Rule 4(b) that the experience shall be in the post of Assistant Executive Engineer; whereas in the case of promotion from the post of Assistant Engineer to Assistant Executive Engineer, it is stipulated under Rule 4 (d) (ii) that the requirement is only seven years service, without making any reference to the particular cadre. This Court does not propose to make any further scrutiny with regard to the scope of the above stipulation, as the issue is pending consideration before the Tribunal. It is for the parties to advance their arguments and substantiate the same before the Tribunal, with reference to the relevant provisions of law and the binding judicial precedents, if any. 6. Smt. Girija Gopal, the learned counsel for the party respondents submits that, in so far as Degree holders are concerned, _O.P.( KAT) No. 339 of 2017_ : 8 : pursuant to the verdict passed by the Tribunal, Annexure A4 list has been prepared. It is stated that the Government has already finalized the list of eligible candidates to be promoted to the cadre of Assistant Executive Engineer and this has been published on 03.05.2017. It is stated that the said list has not been challenged and the names of the petitioners are not included in the said list, not being qualified. The finalization of the said list is never made a mention in O.A. No.919 of 2017 filed by the petitioners, but for seeking to intercept the 1994 Government Order, which is not possible in view of the finality attained by virtue of the law declared by the Division Bench of this Court as per the decision reported in **ILR 1998 (1) Ker. 217 = 1998 KHC 216** [cited supra]. The learned counsel for the petitioners submits that the challenge in respect of the said list has not been raised because of various reasons and that the petitioners can substantiate the stand. This aspect requires to be considered by the Tribunal and we do not make any observation, as it may adversely affect the rights and interest of the parties. 5. Viewed in the above circumstances, this Court finds that the Tribunal has only made the position clear, taking note of the rival submissions, as per Ext. P9 order. Since O.A.s are pending _O.P.( KAT) No. 339 of 2017_ : 9 : consideration before the Tribunal, it is open for the parties to substantiate their pleadings in the light of the materials, to have an effective adjudication. In the said circumstances, we find that no interference does require to be made with the orders passed by the Tribunal, as the issue is still pending consideration before the Tribunal. Accordingly, interference is declined and the O.P. stands dismissed, without prejudice to the rights and liberties of the parties to substantiate their claim. It is made clear that, the promotion if at all any made, pursuant to Ext. P9 order, will be provisional and the same will be subject to the final orders to be passed in the O.A.. It is also made clear that we have not dealt with the merit of the case, except to the extent it was necessary for the disposal of the matter. ## sd/- **P. R. RAMACHANDRA MENON, JUDGE** sd/- **SHIRCY V., JUDGE** kmd /True copy/ P.A. to Judge