M SUDHEER v. STATE OF KERALA & ORS

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS TUESDAY, THE 27TH DAY OF MAY 2014/6TH JYAISHTA, 1936 WA.No. 193 of 2013 () IN WP(C).25195/2012 ------------------------------------------- TUESDAY, THE 27TH DAY OF MAY 2014/6TH JYAISHTA, 1936 AGAINST THE ORDER/JUDGMENT IN WP(C) 25195/2012 of HIGH COURT OF KERALA DATED 31-12-2012 APPELLANT/3RD RESPONDENT :- --------------------------------------- M SUDHEER, ASSISTANT ENGINEER, KERALA WATER AUTHORITY SEWERAGE PROJECT SECTION, PLAMOOD, THIRUVANANTHAPURAM. BY ADVS.SRI.C.P.SUDHAKARA PRASAD (SR.) SRI.S.RAMESH ## RESPONDENTS/PETITIONERS & RESPONDENTS 1 & 2: ------------------------------------------------------------- 1. M.P.JOSE ASSISTANT ENGINEER, PUBLIC HEALTH SECTION KERALA WATER AUTHORITY, VAZHAKULAM MUVATTUPUZHA-686 661. ## 2. P.G.JAYA HEAD DRAFTSMAN (ASSISTANT ENGINEER) PUBLIC HEALTH CIRCLE OFFICE, KERALA WATER AUTHORITY, ERNAKULAM, KOCHI-682 011. ## 3. STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT WATER RESOURCES (WATER SUPPLY-C) DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 4. THE KERALA WATER AUTHORITY REPRESENTED BY ITS MANAGING DIRECTOR, JALA BHAVAN VELLAYAMBALAM, THIRUVANANTHAPURAM-695 033. RR-R1 & 2 BY ADV. SRI.B.UNNIKRISHNA KAIMAL R BY SRI. JOSEPH GEORGE, GOVERNMENT PLEADER R BY SRI.GEORGE MATHEW, SC, KERALA WATER AUTHORITY THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 27-05-2014, ALONG WITH WA. 194,320, 400, 452, 887 & 983 OF 2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## ANTONY DOMINIC & ALEXANDER THOMAS, JJ. ---------------------------------- W.A. Nos. 193, 194, 320, 400, 452, 887 & 983 of 2013 ---------------------------------Dated this the 27[th ] day of May, 2014 ## JUDGMENT ## Antony Dominic, J. Issues raised in these appeals are common. Therefore, these appeals were heard together and are disposed of by this common judgment. The exhibits that are referred to in this judgment are those produced in W.P.(C) No. 25195 of 2012. The point that arises for consideration is the validity of Ext.P4, Government Order dated 24.07.2012. 2. Briefly stated, the facts of these cases are that promotion to the category of Assistant Executive Engineer in the Kerala Water Authority is governed by the Special Rule for Kerala Public Health Engineering State Service (Special Rules for short) which was adopted by the Kerala Water Authority. As per the Special Rule, the post of Assistant Executive W.A. Nos.193, 194, 320, 400, 452, 887 & 983 of 2013 -2- Engineer is to be filled up in the ratio of 3:1 between the degree holders and the diploma holders among the Assistant Engineers. The Degree holders in the feeder category complained that by virtue of the operation of the ratio of 3:1, junior diploma holders were getting earlier promotions and were getting a march over them. This led to representations being made by them and finally the Government issued Ext.P4 order dated 24.07.2012. In paragraph 3 of Ext.P4, the Government ordered thus: “3. In the circumstances Government are pleased to order the following:- - i. An Assistant Engineer who possess Diploma will not be eligible for promotion in the category of Assistant Executive Engineer over a Graduate Engineer having longer service in the category of Assistant Engineer unless the latter is otherwise declared ineligible for promotion to the post of Assistant Executive Engineer. - ii. If there is shortfall in the prescribed ratio, the Managing Director, Kerala Water Authority will take action to rectify the same at the time of every subsequent promotion to the cadre of Assistant Executive Engineer by reviewing whether there are eligible candidates for promotion from the quota other than Degree holders to maintain the ratio.” ## 3. It was challenging Ext.P4 mentioned above that the W.A. Nos.193, 194, 320, 400, 452, 887 & 983 of 2013 -3- diploma holders working in the category of Assistant Engineers filed W.P.(C) Nos. 25195 of 2012 and 19058 of 2012. It was contended before the learned Single Judge that, the Special Rules were adopted by the Kerala Water Authority and that such special rules framed under Article 309 of the Constitution of India could not be amended by an executive order like Ext.P4. To substantiate this contention, reliance was placed on a Full Bench decision of this Court in Sugathan v. Shahul Hameed (2006(4) KLT 54). However, accepting the case that in the light of the principles laid down by the Apex Court in Jacob v. Kerala Water Authority (1990(2) KLT 673), Ext.P1 has only the force of an executive order and that it could be amended by an executive order like Ext.P4, the learned Single Judge repelled the challenge. Proceeding further, in paragraphs 21 to 25 of the judgment, the learned Single Judge held that the vacancies which arose prior to the issuance of Ext.P4 are to be filled up as was being done earlier and directed the State of Kerala to pass necessary orders ensuring the maintenance of the ratio of 3:1 W.A. Nos.193, 194, 320, 400, 452, 887 & 983 of 2013 -4- facilitating occupation of the requisite number of posts by diploma holders as well, applying the ratio to the cadre strength. It was also clarified that no post/vacancy coming within the quota earmarked for the diploma holders shall be filled up even temporarily by accommodating a degree holder. 4. Both parties are aggrieved by this judgment. W.A. Nos. 193, 320, 452 and 983 are filed by the party respondent, the petitioners in the writ petition, Kerala Water Authority and the Government of Kerala respectively, who are aggrieved by the judgment in W.P.(C) No. 25195 of 2012. Similarly, W.A. Nos. 194, 400 & 887 of 2013 are filed by the party respondents, Kerala Water Authority and the Government of Kerala respectively, aggrieved by the judgment in W.P.(C) No. 19058 of 2012. 5. We heard the learned counsel for the appellants and also the learned counsel appearing for the respondents and shall first deal with W.A No. 320 of 2013 filed by the petitioners in W.P.(C) No. 25195 of 2012. W.A. Nos.193, 194, 320, 400, 452, 887 & 983 of 2013 -5- 6. The first contention raised by the learned counsel appearing for the appellants was that Ext.P1, the Special Rule, is a statutory rule framed under Article 309 of the Constitution of India. According to him, it is the settled principle of law that a statutory rule cannot be amended or altered otherwise than by amending the rule itself, and therefore according to him, the learned Single Judge erred in upholding Ext.P4, an executive order amending Ext.P1. As we have already stated, the Special Rule mentioned above is the Special Rule for the Kerala Public Health Engineering State Service. That rule became applicable to the employees of the Kerala Water Authority only because, in its meeting held on 25.04.1984, the Water Authority adopted the said Rule. This is evident from Ext.R3(a), a circular issued by the Kerala Water Authority on 05.06.1984. The question whether on such adoption, the Special Rule mentioned above would remain to be a statutory rule insofar as the Kerala Water Authority is concerned, was considered by the Apex Court in its decision in Jacob v. Kerala Water Authority (1990(2) KLT 673). W.A. Nos.193, 194, 320, 400, 452, 887 & 983 of 2013 -6- ## In that judgment, answering this contention the Apex Court, has held thus: “Since these rules were framed in exercise of power conferred by the proviso to Article 309 of the Constitution they are undoubtedly statutory in character but Mr. Poti was right in his contention that they do not retain that character in their application to the staff-members of the Authority since they have been adopted by the Authority under a resolution. These rules would undoubtedly be statutory in character in their application to the members of the Kerala Subordinate Services for whom they were enacted but when any other authority adopts them by a resolution for regulating the services of its staff, the rules do not continue to remain statutory in their application to the staff of that Authority. There are like any other administrative rules which do not have statutory force.” 7. In the light of the above binding precedent, it is not open to the appellants to raise a contention that in its application to the employees of the Water Authority Ext.P1 retains the character of statutory rules. Therefore, we are unable to accept the contention of the learned counsel for the appellants that Ext.P1 should be accepted as a statutory rule. On the other hand, in view of the principles laid down in Jacob's case, we have to hold otherwise. If that be so, such administrative rules can be modified by the administrative or W.A. Nos.193, 194, 320, 400, 452, 887 & 983 of 2013 -7- executive orders such as Ext.P4. Consequently, we have to uphold the reasoning of the the learned Single Judge that Ext.P4 is a valid order. 8. In this context, we should also refer to the contention raised by the learned counsel for the appellant relying on the Full Bench decision of this Court in Sugathan v. Shahul Hameed (2006(4) KLT 54). However, as rightly pointed out by the learned Counsel appearing for the appellant in W.A. No. 193 of 2013, that judgment has been expressly set aside by the Apex Court as is evident from Ext.R3(d) order of the Apex Court in SLP (C) No. 20571/2006. Therefore, this judgment also cannot be pressed into service. 9. Learned counsel then contended that on an earlier occasion, the Kerala Water Authority had requested the Government to make applicable to it Ext.R3(b) dated 03.10.1984, an order similar to Ext.P4, which was issued for the employees in the Public Works Department and which also contained the provisions similar to clauses 3(i) and (ii) to Ext.P4. W.A. Nos.193, 194, 320, 400, 452, 887 & 983 of 2013 -8- According to the counsel, this request of the Kerala Water Authority was rejected by the Government as per Ext.P2 order dated 31.05.2004. Counsel also referred to the judgment of this Court in W.P.(C) No. 30602 of 2011 where the complaint of the graduate engineers that when promotions were effected in implementation of the ratio, they were being superseded by junior diploma holders, was repelled by this Court and that this judgment was confirmed by a Division Bench of this Court in W.A. No. 497 of 2012. Though these contentions would appear to be attractive, a close scrutiny reveals that these are devoid of substance. It may be true that on an earlier occasion, the Government would have rejected the request made by the Kerala Water Authority for extending to their employees the benefit of Ext.R3(b) mentioned above. However, that did not, in any manner, fetter the rights of the Kerala Water Authority, or the Government to issue orders modifying the executive instructions which govern the conditions of service of their employees. 10. Reading of the judgment in W.P.(C) No. 30602 of 2011 W.A. Nos.193, 194, 320, 400, 452, 887 & 983 of 2013 -9- shows that the graduate engineers who had filed the writ petition were complaining of being superseded by the junior diploma holders in the matter of promotion to the post of Assistant Executive Engineer. This Court declined to interfere with the matter on the ground that so long as Ext.P1 Special Rules governed the field and the rules contained the ratio of 3:1, there was no substance in the challenge. It is true that this judgment was confirmed in W.A. No. 497 of 2012 also. However, insofar as these cases are concerned, the distinction between Ext.P3 judgment and the issue raised in these cases is that subsequent to Ext.P3 judgment, the Government, by Ext.P4, introduced clause 3(i) and (ii) to the Special Rule. This was not the situation when W.P.(C) No. 30602 of 2011 was considered by this Court. Further, in W.P.(C) No. 30602 of 2012, there was no challenge against the rule also. In such a situation, we are not satisfied that Ext.P3 judgment would advance the case of the appellants in W.A. No. 320 of 2013 in any manner. Yet another aspect which requires to be noticed is W.A. Nos.193, 194, 320, 400, 452, 887 & 983 of 2013 -10- that when by Ext.R3(b) a similar provision was introduced in the special rules concerning the employees of Public Works Department, that was challenged before this Court and a Division Bench of this Court upheld Ext.R3(b) in its decision in Public Works Engineers Association v. P.T. Philipose (ILR 1998 (1) Kerala 217). In paragraph 4 of the judgment, the Division Bench held thus: “4. Government was thinking of bifurcating the Public Works Department in the light of the increasing need for specialisation in the activities undertaken by the Roads and Buildings Division and the Irrigation Division. A committee was appointed to study this question and it made recommendations on the future set up of the department. Consequently, Government issued G.O.(P) No. 27/90/PW and T, dated 29[th] March, 1990 (Ext.R2(a)). By this order, the existing Public Works Department was bifurcated into two departments viz. Irrigation Department and Public Works (Roads and Buildings) Department with effect from 1[st] April, 1990. These departments were to deal with the subjects hitherto dealt with by the Irrigation Wing and Public Works Department Wing respectively. The Government Order further contained certain clauses with respect to the service conditions of the employees working in the department. Under Clause 7(ii) of the above Government Order, the employees were given option either to opt to the Roads and Buildings Department or to the Irrigation Department. If the number of persons in a particular category, who had opted to a department, is in excess of the sanctioned strength of that category of that department, the junior most among such persons would be allotted to the other department on temporary basis and they would be absorbed in the department of their option later, when regular vacancies arose in that category of the opted W.A. Nos.193, 194, 320, 400, 452, 887 & 983 of 2013 -11- department. Clause 7(xvii) of the Government Order is relevant to be noticed. “For the purpose of Special Rules, the entire establishment coming under the Public Works Department will be treated as one service viz. the Kerala Engineering Service (Public Works Department)and the entire establishment coming under the Irrigation Department will be treated as a different service viz. the Kerala Engineering Service (Irrigation). The Special Rules in force in the undivided Public Works Department will apply to the newly formed Public Works Department and Irrigation Department as though they have been framed separately for such department until separate rules are duly made”. Thus the Special Rules continued to apply to persons working in the Public Works (Roads and Buildings) Department and Public Works (Irrigation) Department.” 11. For all these reasons, we do not find any substance in the challenge raised in W.A. No. 320 of 2013 filed by the petitioner in W.P.(C) No. 25195 of 2012 12. The remaining six appeals are filed by the respondents in W.P.(C) No. 19058 and 25195 of 2012 and the challenge is against the findings of the learned Single Judge, with reference to clause 3(ii) of Ext.P4 which has already been extracted above and which findings are contained in paragraph 21 to 25 of the judgment. 13. First of all, the pleadings in both the writ petitions W.A. Nos.193, 194, 320, 400, 452, 887 & 983 of 2013 -12- which were considered by the learned Single Judge, was that Ext.P4 mentioned above has to be set aside in its entirety. In the pleadings in the writ petition, there was no alternate or other prayer seeking the benefit of or enforcement of clause 3(ii) of Ext.P4 which is incorporated for the benefit of diploma holders who filed the writ petitions. Therefore, an issue touching upon clause 3(ii) of Ext.P4 order, which is outside the pleadings in the writ petition, could not have arisen for consideration before the learned Single Judge. If that be so, the learned Single Judge also could not have granted any relief to the diploma holders interpreting clause 3(ii) or in implementation thereof. Evidently, reading of paragraphs 21 to 25 shows that despite the above factual position, the learned Single Judge dealt with clause 3(ii) of Ext.P4 in extenso and it is on that basis, the learned Single Judge directed the Government to maintain the ratio of 3:1 by issuing appropriate orders and that even temporary promotion to the Assistant Executive Engineer's post coming within the quota earmarked for the W.A. Nos.193, 194, 320, 400, 452, 887 & 983 of 2013 -13- diploma holders shall not be made otherwise than by appointing the diploma holders concerned. This, in our view, could not have been done and the findings of the learned Single Judge as contained in paragraphs 21 to 25 are therefore vacated. 14. Even otherwise, once the learned Judge had upheld paragraph 3(i) and the prescription therein, the learned Judge could not have proceeded further and issue an order directing the Government to pass necessary orders ensuring maintenance of the ratio of 3:1 which may compel the Government to effect promotions distinguishing clause 3(i) of Ext.P4. Accordingly, consistent with the findings on clause 3(i) of Ext.P4, the learned Single Judge should have held that the prescriptions in para 3(ii) could be implemented only subject to paragraph 3(i) thereof. In that view of the matter, we also find that the directions in paragraphs 21 to 25 of the judgment are inconsistent with the conclusions in the judgment upholding paragraph 3(i) of Ext.P4. For all these reasons, we set aside the findings contained W.A. Nos.193, 194, 320, 400, 452, 887 & 983 of 2013 -14- in paragraphs 21 to 25 of the common judgment under appeal. Accordingly, W.A. No. 320 is dismissed and W.A. Nos. 193, 194, 400, 452, 887 and 983 of 2013 are allowed to the extent indicated above. sd/- ANTONY DOMINIC, JUDGE. sd/- ALEXANDER THOMAS, JUDGE. rv