Krishna Chandran and others v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 18TH DAY OF JULY 2018 / 27TH ASHADHA, 1940** **WP(C).No. 9807 of 2017** ## **PETITIONER :** **1 KRISHNA CHANDRAN, AISWARYA, KOTTAKKAKAM, PERINAD P.O., KOLLAM DISTRICT-691601.** **2 RIYAZ R., RIYAZ MANZIL, P.O.CHAVARA, KOLLAM DISTRICT-691583.** **3 ARUN B. THAHA, KIDANGAPPALLY HOUSE, THAZHAVA P.O., KOLLAM DISTRICT-690523.** **4 VIJITH T.H., THUNDIPARAMBIL HOUSE, P.O.MULAVUKAD, ERNAKULAM DISTRICT-682504.** **BY ADV.SRI.P.M.PAREETH** ## **RESPONDENTS :** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, POWER (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2. KERALA STATE ELECTRICITY BOARD LTD., REPRESENTED BY ITS SECRETARY, VIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695004.** **WP(C).No. 9807 of 2017** **3. CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD LTD., VIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695004.** **4. KERALA PUBLIC SERVICE COMMISSION, REP. BY ITS SECRETARY, PATTOM PALACE P.O., THIRUVANANTHAPURAM-695004.** **5. SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM PALACE P.O., THIRUVANANTHAPURAM-695004.** ## *** ADDL.RESPONDENTS 6 TO 11 ARE IMPLEADED:** **6. ASWATHY A., W/O GIRISH N. GOPAL, AGED 30 YEARS, SUB ENGINEER, KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL DIVISION, ERNAKULAM. (NOW RESIDING AT MRA 35, NEDUMATTATHIL HOUSE, MASTER LANE, VADUTHALA, ERNAKULAM-682023).** **7. SHOBYMON P.R., S/O P.K.RAVEENDRAN, AGED 33 YEARS, SUB ENGINEER, KERALA STATE ELECTRICITY BOARD LTD., 110 KV SUB STATION, CHENGANNUR. (NOW RESIDING AT PUTHUVALIL HOUSE, EDATHUA P.O., ALAPPUZHA-689573).** **8. RICH ANTONY, S/O ANTONY V.T., AGED 33 YEARS, SUB ENGINEER, KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL SECTION, KURIACHIRA, THRISSUR. (NOW RESIDING AT UKKEN HOUSE, ELOTH ROAD, MANAKODY P.O., THRISSUR-680012).** **9. ANISH M.A., S/O P.V.MANI, AGED 36 YEARS, SUB ENGINEER, KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL SECTION, NEENDOOR, KOTTAYAM. (NOW RESIDING AT ANISH BHAVAN, KURUMATHARA, THALAYOLAPARAMBU, KOTTAYAM-686605).** **WP(C).No. 9807 of 2017** **10. SMITHA K.V., W/O MANEESH E.K., AGED 35 YEARS, SUB ENGINEER, KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL SECTION, VAIKOM. (NOW RESIDING AT KONAKUPPAKATTIL, KADUTHURUTHY, KOTTAYAM-686604). 11. RAZEENA BEEGUM S.R., W/O SIJU BASHEER, AGED 35 YEARS, SUB ENGINEER, KERALA STATE ELECTRICITY BOARD LTD., O/O CHIEF ENGINEER (HRM), ESTABLISHMENT VIGILANCE,VIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. (NOW RESIDING AT NOOR HOUSE, ARAPPURA ROAD, VATTIYURKAVU, THIRUVANANTHAPURAM-695013.** *** ADDL. RESPONDENTS 6 TO 11 ARE IMPLEADED AS PER ORDER DATED 20.7.2017 IN I.A.10697/2017.** **R1 BY GOVERNMENT PLEADER SRI.PAUL ABRAHAM VAKKANAL R2-R3 BY ADVS.SRI.RAJU JOSEPH (SR.) SRI.GEORGEKUTTY MATHEW, SC, SMT.ANEETHA A.G., SC, KSEB R4 & R5 BY SRI.P.C.SASIDHARAN, SC, KPSC R6-R11 BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.V.VARGHESE SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SMT.SHAMEENA SALAHUDHEEN SMT.S.SIMY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 2.7.2018, ALONG WITH WPC.6610/2018 AND COC.36/2018, THE COURT 18.7.2018 DAY DELIVERED THE FOLLOWING:** **EL** **WP(C).No. 9807 of 2017 (A)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1- A TRUE PHOTO COPY OF THE RELEVANT PORTION OF THE RANKED LIST DATED 30/12/2016 IN RESPECT OF ASSISTANT ENGINEER (ELE) ISSUED BY THE FIFTH RESPONDENT. EXHIBIT P2- A TRUE PHOTO COPY OF THE APPLICATION DATED 14/07/2016 UNDER RIGHT TO INFORMATION ACT. EXHIBIT P3- A TRUE PHOTO COPY OF THE REPLY DATED 12/08/2016 ISSUED BY THE OFFICE OF THE SECOND RESPONDENT. EXHIBIT P4- A TRUE PHOTO COPY OF THE BOARD ORDER DATED 26/02/2011. EXHIBIT P5- A TRUE PHOTO COPY OF THE GOVERNMENT ORDER DATED 13/02/2014. EXHIBIT P6- A TRUE PHOTO COPY OF THE PROCEEDINGS DATED 30/05/2015 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P7- A TRUE PHOTO COPY OF THE QUESTIONS DATED 30/01/2017 SUBMITTED TO THE STATE INFORMATION OFFICER. EXHIBIT P8- A TRUE PHOTO COPY OF THE REPLY DATED 27/02/2017 ISSUED OF THE OFFICE OF THE THIRD RESPONDENT. EXHIBIT P9- A TRUE PHOTO COPY OF THE APPLICATION DATED 20/09/2O16 UNDER RIGHT TO INFORMATION ACT. EXHIBIT P10- A TRUE PHOTO COPY OF THE REPLY DATED 20/10/2016 ISSUED BY THE OFFICE OF THE THIRD RESPONDENT. EXHIBIT P11- A TRUE PHOTO COPY OF THE BOARD ORDER DATED 17/06/2015 PROMOTING 24 ASSISTANT EXECUTIVE ENGINEERS AS EXECUTIVE ENGINEERS. EXHIBIT P11(A)- A TRUE PHOTO COPY OF THE BOARD ORDER DATED 02/07/2015 PROMOTING ONE AEE AS EXECUTIVE ENGIEER. EXHIBIT P11(B)- A TRUE PHOTO COPY OF THE BOARD ORDER DATED 25/09/2015 PROMOTING 5 AEES AS EES. EXHIBIT P11(C)- A TRUE PHOTO COPY OF THE BOARD ORDER DATED 05/02/2016 PROMOTING 5 AEES AS EES. EXHIBIT P11(D)- A TRUE PHOTO COPY OF THE BOARD ORDER DATED 04/03/2016 PROMOTING 4 AEES AS EES.** **WP(C).No. 9807 of 2017 (A)** **EXHIBIT P11(E)- A TRUE PHOTO COPY OF THE BOARD ORDER DATED 10/08/2016 PROMOTING 13 AEES AS EES. EXHIBIT P11(F)- A TRUE PHOTO COPY OF THE BOARD ORDER DATED 03/09/2016 PROMOTING 2 AEES AS EES.** **EXHIBIT P11(G)- A TRUE PHOTO COPY OF THE BOARD ORDER DATED 26/11/2016 PROMOTING 2 AEES AS EES. EXHIBIT P11(H)- A TRUE PHOTO COPY OF THE BOARD ORDER DATED 19/01/2017 PROMOTING 1 AEES AS EES.** **EXHIBIT P11(I)- A TRUE PHOTO COPY OF THE BOARD ORDER DATED 25/02/2017 PROMOTING 3 AEES AS EES.** **EXHIBIT P12- A TRUE PHOTO COPY OF THE PROCEEDING DATED 4.3.2014 ISSUED BY THE 3RD RESPONDENT PROMOTING 15 DIPLOMA HOLDING ASSISTANT ENGINEERS AS ASSISTANT EXECUTIVE ENGINEERS** **EXHIBIT P12(A)- A TRUE PHOTO COPY OF THE PROCEEDING DATED 11.6.2014 PROMOTING ONE DIPLOMA HOLDING ASSISTANT ENGINEERS AS ASSISTANT EXECUTIVE ENGINEERS** ## **RESPONDENT(S)' EXHIBITS** ## **NIL** **TRUE COPY** ## **P.S. TO JUDGE** ## **EL** **18.7.2018** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) Nos.9807 of 2017, 6610 of 2018 & Cont. Case (C) No.36 of 2018 ----------------------------------------------Dated this the 18[th] day of July, 2018** ## **JUDGMENT** The captioned writ petitions and the contempt of court case are materially connected, and therefore, I heard them together and propose to deliver a common judgment. W.P.(C) No.9807 of 2017 is filed by the petitioners who are included in the ranked list for appointment to the post of Assistant Engineer (Electrical) in the 2[nd] respondent Board, published by the 4[th] respondent, seeking direction to the 3[rd] respondent to report all existing and anticipated vacancies of Assistant Engineer (Ele.) in the various offices of the 2[nd] respondent Board to the 4[th] respondent within a time frame, and for other related and consequential reliefs. The fate of the other writ petition and the contempt case will be guided by the decision taken in W.P.(C) No.9807 of 2017. Brief material facts for the disposal of the writ petition are as follows: 2. Petitioners are rank Nos.128, 152, 270 & 306 in Ext.P1 rank list for appointment to the post of Assistant Engineer (Ele.) in the 2[nd] respondent Board. According to the **W.P.(C) No.9807/17 & conn. cases** 2 3[rd] respondent, the present cadre strength of Assistant Engineer (Ele.) is 2340, of which, 40% have to be appointed by direct recruitment. However, only 731 persons appointed in 40% quota are now occupying the position, which thus means, 205 vacancies have to be filled up by direct recruitment. Exts.P2 and P3 are application, and reply to the application submitted by the petitioners under the Right to Information Act. 3. In addition to the above, 167 posts of Assistant Engineer (Ele.) were upgraded temporarily as Assistant Executive Engineer (Ele.). As per Ext.P4 Board order dated 26.02.2011, it was decided to upgrade 167 Assistant Engineer (Ele.) posts to Assistant Executive Engineer (Ele.) temporarily, subject to the approval of the Government. As per Ext.P5 order dated 13.02.2014, the Government accorded sanction for temporary upgradation of 167 Assistant Engineers to Assistant Executive Engineers with a condition that the same will be permitted till their retirement or promotion to the next higher post whichever is earlier. Pursuant to Ext.P5, 161 Assistant Engineers (Ele.) were promoted and posted as Assistant Executive Engineers (Ele.) as per Board orders dated **W.P.(C) No.9807/17 & conn. cases** 3 01.03.2014, 04.03.2014, 11.06.2014 and 12.03.2015. Thereafter, out of the above 161 Assistant Executive Engineers (Ele.), 37 were absorbed in the regular vacancies of Assistant Executive Engineer (Ele.), which arose up to 01.02.2015 and corresponding number of Assistant Engineer posts were revived, evident from Ext.P6 proceedings of the 3[rd] respondent dated 30.05.2015. 4. The above 37 vacancies revived and restored were reported to the Commission along with other vacancies, thus, altogether 91 vacancies are available as on 20.06.2016. However, out of the 167 posts of Assistant Engineers upgraded temporarily, only 37 posts were revived and reported to PSC. The remaining 130 posts of Assistant Engineers are to be revived. According to the petitioners, there are enough and more vacancies of Assistant Executive Engineer (Ele.), to which the above 130 persons can be adjusted. 5. That apart, it is submitted that, as per item Nos.8 and 9 of Ext.P3, the cadre strength of Assistant Executive Engineer is 676 and 893 persons are in position as on 12.08.2016. That means, 217 Assistant Executive Engineers are yet to be regularized. However, the number of Assistant **W.P.(C) No.9807/17 & conn. cases** 4 Executive Engineers working is diminished to 728, evident from Ext.P8 reply given under the Right to Information Act, on the basis of Ext.P7 information sought for. Ext.P8 shows that only 52 posts of Assistant Executive Engineers are in excess as on 27.02.2017. However, as per Ext.P3 reply, as on 12.08.2016, the excess was 217. Therefore, according to the petitioners, in between 12.08.2016 and 27.02.2017, 165 Assistant Executive Engineers were promoted or retired or died. But, instead of adjusting 130 posts which remain to be adjusted against the vacancies of Assistant Executive Engineers occurred due to promotion, retirement or death, promotions were made to the said upgraded posts. That apart, it is submitted that, evident from Ext.P10 reply in Ext.P9 information sought for, 93 vacancies of Assistant Executive Engineers occurred up to 09.09.2016 are remaining vacant. Other statistical figures are also provided by the petitioners based on the information sought for under the Right to Information Act, and submits that there are enough and more vacancies in the post of Assistant Executive Engineers, enabling the Board to comply with Ext.P5 Government order dated 13.02.2014, which will inure to the benefit of the **W.P.(C) No.9807/17 & conn. cases** 5 petitioners and others. Therefore, according to the petitioners, they are entitled to secure the reliefs sought for in the writ petition. 6. A counter affidavit is filed by respondents 2 and 3, refuting the allegations and claims and demands raised by the petitioners. Among other contentions, it is stated that, the sanctioned strength of Assistant Engineer (Ele.) is 2340 and the cadre strength is 2295. 40% of the cadre strength i.e., 918 has to be appointed by direct recruitment. 107 places belonging to 40% quota has been upgraded, and hence 811 places (918-107) are available under 40% quota. The working strength under 40% quota is 731. Out of the 37 places revived, 11 places come under 40% quota. Therefore, the total vacancy of 91 (811-731+11) was reported to PSC for direct recruitment. Thus, the contention of the petitioners that 205 vacancies have to be filled by direct recruitment is not true or correct. 7. The Kerala State Electricity Board decided to upgrade 167 posts of Assistant Engineer (Ele.) in Corporate Office, Chief Engineer Offices to the cadre of Assistant Executive Engineer (Ele.) _vide_ Board Order dated 26.02.2011, **W.P.(C) No.9807/17 & conn. cases** 6 after obtaining sanction from the Government. The Government _vide_ order dated 13.02.2014, accorded sanction for temporary upgradation of 167 Assistant Engineer (Ele.) to Assistant Executive Engineer posts with the condition that the temporary upgradation shall be permitted till their retirement or promotion to the next higher post, whichever is earlier, and absorbed automatically in the arising Assistant Executive Engineer (Ele.) vacancy till the 167 personal upgradation are covered. Also, no more appointment of Assistant Engineers in the 167 posts so upgraded will take place until these 167 posts are adjusted and no more promotion to the posts of Assistant Executive Engineer will take place until the 167 upgradation is adjusted. Accordingly, 161 Assistant Engineers were promoted to the temporarily upgraded places as per the conditions stipulated in Ext.P5 Government Order dated 13.02.2014. Out of the 161 Assistant Engineers promoted, 37 were regularized in the cadre of Assistant Executive Engineer (Ele.) in the vacancies that arose due to retirement, promotion etc. up to 31.01.2015 and 37 places of Assistant Engineers were revived. 8. It is also stated that, out of the 161 Assistant Engineers promoted, 37 were regularized and 124 are yet to **W.P.(C) No.9807/17 & conn. cases** 7 be regularized. The sanctioned strength of Assistant Executive Engineer (Ele.) as per various Board orders is 679, and the working strength as on 31.03.2017 is 724 including the temporary upgraded Assistant Executive Engineers (Ele.). During the period from 01.02.2015 to 31.03.2015, 73 Assistant Executive Engineers (Ele.) have retired on superannuation and 4 Assistant Executive Engineers (Ele.) expired while in service. Also, 58 Assistant Executive Engineers (Ele.) were promoted to the cadre of Executive Engineer during the period from 2/2015 to 2/2017. Since Ext.P5 order stipulates that no more appointment of Assistant Engineers in the 167 posts upgraded will take place until these 167 posts are adjusted, and no more promotion to the posts of Assistant Executive Engineer will take place until the 167 upgradation is adjusted, no steps are taken for promotion to the cadre of Assistant Executive Engineer (Ele.). It is also stated that the matter of regularization of the remaining 124 upgraded places have been taken up with the Board and a decision on the same is awaited. 9. A reply affidavit is filed by the petitioners, reiterating the stand adopted in the writ petition. **W.P.(C) No.9807/17 & conn. cases** 8 10. The Board has also filed a detailed counter affidavit to I.A.No.11567 of 2017 filed by the petitioners, seeking interim relief to implement Ext.P5 order, in which, it is stated that, the promotion from the cadre of Assistant Engineer (Ele.) to the post of Assistant Executive Engineer (Ele.) is governed by the rules available in the Engineering Service Rules and the Kerala State and Subordinate Services Rules, 1958. The above rules were adopted in the erstwhile Kerala State Electricity Board and are applicable to the Kerala State Electricity Board Limited also. As per Note 3 to Rule 5, Part-II of KS&SSR, 1958, a ratio or percentage is fixed for different methods of recruitment/appointment to a post and the number of vacancies to be filled up by candidates from each method shall be decided by applying the fixed ratio or percentage to the cadre strength of the post to which the recruitment/transfer is made and not to the vacancies existing at that time. Therefore, regular promotion can be given only in the prescribed ratio based on the cadre strength available in each quota. The percentage earmarked to the Graduate and Diploma Engineers for promotion to the post of Assistant Executive Engineer (Electrical) is 75% and 25% respectively. **W.P.(C) No.9807/17 & conn. cases** 9 The available cadre strength in the Graduate quota of Assistant Executive Engineers is 509 places only. But, at present, i.e. as on 01.01.2018, 545 Graduate Engineers are working in this 75% quota including officers on long leave, deputation etc., while out of 170 places available in the 25% Diploma quota, only 16 Diploma holding Assistant Executive Engineers are working. Therefore, in the Degree quota, 36 persons are in excess while in the Diploma quota, 154 vacancies are available. 11. The above figures do not include the remaining 124 Assistant Executive Engineers who were promoted against the temporarily upgraded places, since their places cannot be treated as permanent places to be counted for cadre strength. Therefore, there are no vacancies at present in the 75% Graduate quota. Under such circumstances, the 108 temporarily promoted Graduate Assistant Executive Engineers cannot be given regular promotion violating the quota rules which may further widen the working strength to 653 against the cadre strength of 509 leaving an excess working strength of 144 Assistant Executive Engineers. If the directions in Ext.P5 Government Order and the quota rule in the KS&SSR ## **W.P.(C) No.9807/17 & conn. cases** 10 are followed, the 108 temporarily upgraded places can be adjusted only against the regular vacancy arising in the Diploma quota, i.e., 25% quota. Other contentions are also raised justifying the action of the respondents. That apart, it is submitted that, the petitioners are only rank holders in the rank list published by the KPSC for the post of Assistant Engineer (Electrical), and they are not employees of the KSEB Ltd., and they have no right of any manner to compel the respondents to regularize the temporarily upgraded posts. Therefore, according to respondents 2 and 3, petitioners are not entitled to get any reliefs as is sought for in the writ petition. 12. Similarly, additional respondents 6 to 11 impleaded as per the order in I.A.No.10697 of 2017 dated 20.07.2017, seek direction to respondents 2 and 3 to revive and restore the remaining 130 posts of Assistant Engineer (Electrical) out of 167 posts upgraded as per Exts.P4 and P5. According to the additional respondents, the appointment to the post of Junior Engineer, which was later re-designated as Assistant Engineer by virtue of Board Order dated 25.02.1977 is in accordance with the ratio of 40:10:30:20, among direct recruitment ## **W.P.(C) No.9807/17 & conn. cases** 11 through KPSC, appointment by transfer through Commission from among in-service candidates who possess graduation in Engineering, by way of promotion from the post of Sub Engineer who possesses Diploma and by way of promotion from the post of Sub Engineer who possesses ITI certificate, respectively. 13. I have heard respective counsel appearing for the petitioners in the above writ petitions, learned Senior Counsel appearing for the KSEB and the learned Standing Counsel for the 4[th] respondent Kerala Public Service Commission. Perused the documents on record and the pleadings put forth by the respective parties. 14. The sole question to be considered is, whether the petitioners are at liberty to compel the 2[nd] and 3[rd] respondents to implement Ext.P5 Government Order. The statistical figures discussed above show that, already the Graduate Engineers are excess in the post of the Assistant Executive Engineers (Ele.). Out of the 167 upgraded posts, 37 posts were adjusted against the vacancies in the post of Assistant Executive Engineer. According to the Board, as such, there is no vacancy available in the Assistant Executive Engineer (Ele.) post, and if ## **W.P.(C) No.9807/17 & conn. cases** 12 Ext.P5 order passed by the State Government is implemented as such, that would be creating additional posts in the cadre of Assistant Executive Engineer (Ele.). That apart, it is submitted that, in Ext.P5 Government Order, sufficient conditions are imposed in respect of the temporary upgradation of the posts of Assistant Engineers so far as the 167 posts. Therefore, according to the Board, no manner of insistence can be made by the petitioners who are only rank holders in the list drawn by the PSC. It is also submitted that, since the quota rule is still existing, the Graduate Engineers are not entitled to secure any appointment as is insisted upon in the writ petitions. It is further submitted that, there are only 16 Diploma holders working in the post of Assistant Executive Engineer against a total cadre strength of 170, while in the 75% quota earmarked for the Degree holders, 545 are working against the cadre strength of 509. Therefore, according to the Board, there are no vacancies existing in order to implement Ext.P5 Government Order. So also, it is submitted that, merely because Ext.P5 Government Order is issued, that will not take away the quota rule existing in the Board as per the Board Order, 1977. ## **W.P.(C) No.9807/17 & conn. cases** 13 15. Learned counsel for the petitioners submitted that, Note 3 to Rule 5 Part-II KS&SSR taking care of method of recruitment by applying Quota rule, has lost its relevance and appointments are to be made in accordance with Ext.P5 Government Order. Learned counsel for the petitioners has invited my attention to the judgment of this Court in ' _**Ravindran K. v. Mahatma Gandhi University and Others**_ ' [2008 (3) KHC 864 : 2008 (4) KLT 45], wherein, it is held that, Note 3 to Rule 5 of Part-II of KS&SSR would apply only when a ratio or percentage is fixed for different methods of recruitment/appointment to a post/service. However, the proposition of law laid down in the said judgment is under a different factual circumstance, and therein, only one method of recruitment/appointment was available at the ratio of 1:1, i.e., by and between the Overseer Grade-II (Electrical) and from the category of Electrician. Therefore, the facts and circumstances involved in this writ petition makes it clear that, the ratio laid down in the said judgment has no application to the issues raised by the petitioners in this writ petition. ## **W.P.(C) No.9807/17 & conn. cases** 14 16. So also, learned counsel for the petitioner in W.P. (C) No.6610 of 2018 has invited my attention to the judgment of the apex court in ' _**Bishan Sarup Gupta v. Union of India and Others**_ ' [(1973) 3 SCC 1] and submitted that, with the upgrading of a large number of posts and the appointments to them of promotees, the quota rule collapsed and with that the seniority rule also. The said judgment was rendered by the apex court in respect of Income Tax Officers, Class I, Grade-II, Service Recruitment Rules, 1945, wherein, Rule 4 prescribes the method for filling up vacancies and number of candidates to be recruited by each method, and the Government had the liberty to make appointment either by direct recruitment or by promotion. Therein, the Government took a decision to upgrade 214 posts to Class-I and to fill up the same with promotees of Class II, which is a method of recruitment available to the Government irrespective of the power to appoint by direct recruitment or by both. In that context, paragraphs 21 and 22 of the judgment are relevant, which read thus: _“21. What is then the position with regard to the seniority list after the year 1958? It appears that for sometime before 1959 Government was considering upgrading a large number of class II, Grade III posts to_ ## **W.P.(C) No.9807/17 & conn. cases** 15 _class I, Grade II posts. Direct recruits who, after probation, started working in the department had naturally no experience of assessment work. On the other hand, class II, Grade III officers had at least 3 years experience of assessment work. The department thought that it would be expedient and just to increase the number of class I, Grade II posts and to appoint to them on selective merit class II, Grade III officers who had sufficient experience of the assessment. That is how a decision was taken at the end of 1958 to upgrade a number of posts in class II, Grade III and appoint officers in Grade III in those upgraded posts. On January 16, 1959 Government in the Ministry of Finance wrote to all Commissioners of Income-tax that the President had sanctioned the upgrading to class I of 100 temporary posts of Income-tax Officers, Class II. Upgrading of a post involves the transfer of a post from the lower grade to the higher grade and the promotion of one of the incumbents of that post to the upgraded post. If 100 posts are upgraded from class II to class I, class II posts will dwindle by 100 posts and class I posts will increase by 100 posts. These extra upgraded posts are then filled by selection of 100 officers of class II. If that is not done, 100 class II officers will have no posts in class II after 100 posts are upgraded to class I. Then again a second time on December 9, 1960 Government sanctioned further upgrading of 114 posts from class II to class I. These 114 posts consisted of 80 permanent posts and 34 temporary posts. Thus in all between 1959-60 altogether 214 posts were upgraded and filled by promotees. Government's contention was that these promotions had been on an ad hoc basis. All these 214 promotions were not made in 1959-60 only. They were spaced over 3/4 years. But the point is that the cadre of class I, Grade II as it stood in 1958 enormously increased by this addition of 214 upgraded posts. If the same seniority rule applied to these promotees filling the upgraded posts, then they would not only be senior to the direct recruits appointed in those years but also to those appointed in the previous two years. Two contentions were put forward on behalf of the direct recruits. One was that by the upgrading of the posts 214 new vacancies were created in class I, Grade II and these vacancies must be filled in accordance with the quota rule i.e. to say 2/3 of those vacancies must_ ## **W.P.(C) No.9807/17 & conn. cases** 16 _go to the direct recruits and 1/3 to promotees. Since, however, all these upgraded posts are filled by promotions, excess appointments to the extent of 2/3rd would be invalid. The second contention was that the seniority rule had collapsed by a colossal departure from the quota rule. In Jaisinghani's case, (1967) 2 SCR 703 = (AIR 1967 SC 1427) it was pointed out by this court at p. 718 that "the quota rule was linked up with the seniority rule and unless the quota rule is strictly observed in practice it will be difficult to uphold that the seniority rule i.e. 1 (f) (iii) and (iv) is not unreasonable and does not offend Article 16 of the Constitution." It was contended that class I, Grade II was now flooded by an enormously large number of promotees and, therefore, with the breakdown of the quota rule there was a breakdown in the seniority rule itself._ _22. So far as the first contention referred to above is concerned, there is no substance. There was no quota rule as such in existence in 1959. Only the old quota rule of 1951 was being followed as a guideline. Rule 4 of the Recruitment Rules, 1945, permitted Government to determine the method to be employed for the purpose of filling any particular vacancies and the number of candidates to be recruited by each of the two methods described in Rule 3. So if the Government takes a decision that 214 posts must be upgraded to Class I and all these upgraded posts must be filled by promotees from Class II which is one of the two methods described in Rule 3 of the Recruitment Rules, there can possibly be no objection. Rule 4 permitted the Government to fill the vacancies either by direct recruitment or by promotion or both. Therefore, it cannot be contended that these 214 upgraded posts must be divided between the direct recruits and promotees in the ratio of 2:1.”_ Therefore, it is categoric and clear that the situation available in the case was entirely different, since already the entire posts were filled up by upgrading the Class-II to Class-I and the appointments were done by virtue of the powers conferred ## **W.P.(C) No.9807/17 & conn. cases** 17 on the Government to make appointment by direct recruitment or by promotion. 17. However, in this case, it is clear from the discussion made above that, the quota rule is available and it is not disturbed as of now in any manner. Merely because the Government have issued a notification according sanction for the proposal of the Board to upgrade the post of Assistant Engineer (Electrical), it cannot be said that any manner of disturbance is made to the quota rule, since it has not transcended into the adjustment of the candidates to the vacancies available to the higher posts of Assistant Executive Engineers (Ele.). Moreover, it is clear from the circumstances available in the case at hand, petitioners cannot insist the Board to make appointments, especially due to the fact that, it is clear from the statistics made available that there are no existing vacancies in the cadre of Assistant Executive Engineers (Electrical). Further, the contention put-forth by the petitioners that the Graduate Engineers alone are entitled to the benefit of Ext.P5 Government Order also cannot be sustained in view of the quota rule existing as per the Board Order of 1977, and due to the fact that on mere issuance of ## **W.P.(C) No.9807/17 & conn. cases** 18 Ext.P5, the Quota rule is in any way interfered with. The judgment of the apex court in ' _**Shailendra Dania and Others v. S.P. Dubey and Others'**_ [(2007) 5 SCC 535] is relevant to the context, paragraph 45 read thus: _“45. As a necessary corollary, we are of the view that the diploma-holder Junior Engineers who have obtained a degree in Engineering during the tenure of service, would be required to complete three years' service on the post after having obtained a degree to become eligible for promotion to the higher post if they claim the promotion in the channel of degree-holder Junior Engineer, there being a quota fixed for graduate Junior Engineers and diploma-holder Junior Engineers for promotion to the post of Assistant Engineers.”_ 18. Taking into account all these aspects, I am of the considered opinion that, petitioners are not entitled to get any relief in W.P.(C) No.9807 of 2017. As I am holding so, the reliefs sought for by the petitioner in W.P.(C) No.6610 of 2018 is also not entitled to get any relief, since the prime relief sought for is direction to the 1[st] respondent to report 96 vacancies of Assistant Engineer (Ele.) to the 6[th] respondent therein and direct the 6[th] respondent to issue advice memos against such number of vacancies from Ext.P1 rank list. 19. True, an interim order was passed by this Court on 16.10.2017 in I.A.No.11567 of 2017 in W.P.(C) No.9807 of 2017, directing to regularize 124 numbers of Assistant ## **W.P.(C) No.9807/17 & conn. cases** 19 Executive Engineers who were appointed in the temporarily upgraded posts of Assistant Executive Engineer by absorbing them in the 124 vacancies out of 135 vacancies existing. However, the fact discussion made above would make it clear that, factually and legally, the interim order passed by this Court is unable to be implemented. So also, since the writ petition itself is dismissed, I am of the considered opinion that, the contempt of court case cannot survive any further. Therefore, the petitioners are not entitled to get any reliefs in the contempt of court case also. Same is the case of the additional respondents in W.P.(C) No.9807 of 2017, and further, they are not entitled to secure any reliefs in the writ petition filed by other petitioners. Therefore, the writ petitions as well as the contempt of court case are dismissed. Sd/- **SHAJI P. CHALY JUDGE** St/16.07.2018