Peethambaran U.K. v. State of Kerala and others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 7TH DAY OF MARCH 2017/16TH PHALGUNA, 1938 OP(KAT).No. 75 of 2016 () -------------------------- AGAINST THE ORDER IN OA 233/2015 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 19-05-2016 PETITIONER(S)/APPLICANT IN THE O.A.: ----------------------------------- PEETHAMBARAN U.K, AGED 55 YEARS, S/O.V.M.KRISHNA PODUVAL, ASSISTANT EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT, ROADS SUB DIVISION, KANHANGAD-671315. BY ADVS.SRI.M.SASINDRAN SRI.P.SASI RESPONDENT(S)/RESPONDENTS 1 TO 12 IN THE O.A.: ---------------------------------------------- 1. STATE OF KERALA,REPRESENTED BY THE SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. CHIEF ENGINEER, PUBLIC WORKS DEPARTMENT (ADMINISTRATION), THIRUVANANTHAPURAM-695033. 3. SMT.LATHIKA A.S., EXECUTIVE ENGINEER (PWD), REGIONAL MANAGER, KERALA STATE CONSTRUCTION CORPORATION, PAZHVEEDU P.O., ALAPPUZHA-688009. RETIRED FROM SERVICE AND NOW RESIDING AT: CHETTIPARAMBIL HOUSE, P.O.CHEROOR, THRISSUR-680008. 4. B.S.THRIVIKRAMAN, EXECUTIVE ENGINEER, BUILDINGS DIVISION, IDUKKI-685603.,NOW WORKING AS JOINT DIRECTOR, KERALA HIGHWAY RESEARCH INSTITUTE, KARYAVATTAM, THIRUVANANTHAPURAM. 5. MANOMOHAN,EXECUTIVE ENGINEER, BUILDINGS DIVISION, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695033, NOW WORKING AS EXECUTIVE ENGINEER, PWD BUILDINGS DIVISION,PMG JUNCTION,THIRUVANANTHAPURAM 6. SRI.ASOK KUMAR.M, EXECUTIVE ENGINEER, ROADS DIVISION, CIVIL STATION P.O., KANNUR-670002, NOW WORKING AS EXECUTIVE ENGINEER, PWD ROADS DIVISION OFFICE, CIVIL STATION, SULTHANPETTA, PALAKKAD. 7. SMT.HUYGHEEN ALBERT EXECUTIVE ENGINEER, BUILDINGS DESIGN, DRIQ BOARD, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695033, NOW WORKING AS JOINT DIRECTOR, BUILDINGS, PWD OPERATIONS, PUBLIC OFFICE, MUSEUM P.O., THIRUVANANTHAPURAM-695033. ## 8. SMT.BEENA.L ENVIRONMENTAL ENGINEER, K.S.T.P., KOWDIAR P.O., THIRUVANANTHAPURAM - 695003. NOW WORKING AS ENVIRONMENTAL ENGINEER, KSTP, TC/339, JAGAD BUILDINGS, KESTON ROAD, NANTHANKODE, KAWDIAR P.O., THIRUVANANTHAPURAM-695033. ## 9. SMT.SINDHU T.S. EXECUTIVE ENGINEER, ROADS DIVISION, KASARAGOD DISTRICT-671121, NOW WORKING AS EXECUTIVE ENGINEER, PWD BUILDINGS DIVISION, REST HOUSE COMPOUND, TELLICHERRY, KANNUR DISTRICT. ## 10. SMT.SAIJAMOL N.JACOB EXECUTIVE ENGINEER, PPU, O/O. THE CHIEF ENGINEER N.H., VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695033. NOW WORKING AS EXECUTIVE ENGINEER, PPU, O/O THE CHIEF ENGINEER, NATIONAL HIGHWAYS, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM-695033. ## 11. SRI.AJITH RAMACHANDRAN EXECUTIVE ENGINEER, GIS & RMMS, O/O THE CHIEF ENGINEER (R&B), VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695033. NOW WORKING AS EXECUTIVE ENGINEER (GIS & RMMS&IT), O/O THE CHIEF ENGINEER, R&B ADMINISTRATION, PUBLIC OFFICE BUILDING, TRIVANDRUM. 12. SMT.LISSY K.F. EXECUTIVE ENGINEER, RMU, O/O THE CHIEF ENGINEER (R & B), VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695033. NOW WORKING AS EXECUTIVE ENGINEER, R&M UNIT, O/O THE CHIEF ENGINEER, R&B AND ADMINISTRATION, PUBLIC OFFICE BUILDING, MUSEUM P.O., TRIVANDRUM. R12 BY ADV. SRI.C.E.UNNIKRISHNAN R12 BY ADV. SRI.M.P.PRABHAKARAN (PALAKKAD) R5 BY ADV. SRI.S.RAMESH R5 BY ADV. SRI.NAVEEN.T R5 BY ADV. SMT.CHITHRA CHANDRASEKHARAN R1,2 BY GOVERNMENT PLEADER SRI.PAUL ABRAHAM VAKKANAL THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 07-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 75 of 2016 () -------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS - ----------------------- - P1: TRUE COPY OF THE O.A.NO.233/2015 BEFORE THE KERALA - ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM. - P2: TRUE COPY OF THE REPLY STATEMENT FILED BY THE 1ST RESPONDENT IN O.A.NO.233/2015. - P3: TRUE COPY OF THE ORDER DATED 19.5.2016 IN O.A.NO.223/2015 OF THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM. RESPONDENT(S)' EXHIBITS:NIL ----------------------- //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR** ## **& ANIL K. NARENDRAN, JJ.** ## **==========================** ## **O.P. (KAT).No.75 OF 2016** ## **==========================** Dated this the 7[th] day of March, 2017 ## **JUDGMENT** ## _**Ravikumar, J.**_ This original petition carries challenge against order dated 19.5.2016 passed by the Kerala Administrative Tribunal, Thiruvananthapuram in O.A.No.233 of 2015. The petitioner herein was the applicant and the respondents herein were the respondents, before the Tribunal. The said O.A was filed seeking the following reliefs:- 1. Call for the records leading to issuance of Annexure-A5 and Annexure -A20 and set aside Annexure A-20. 2. Consequently issue a direction commanding the respondents to shift the date of effect of order of Annexure-A5 with reference to the date of occurrence of vacancy reported in Annexure-A3, **O.P.(KAT).75/2016** 2 - Annexure-A22, A23, A24 and A25 communications. 3. Issue a direction commanding the respondents to revive Annexure-A9 and include the name of the applicant under degree quota with reference to the date of acquisition of degree qualification. 4. Issue a direction to the respondents to convene an ad hoc DPC for the year 2013 to consider the eligibility of the applicant to be included in the select list of Asst.Executive Engineers for promotion to the higher post. 5. To declare that the applicant is eligible for promotion as Executive Engineer in the graduate quota as per rules (4)(b) of Annexure-A26. As per Ext.P3 order, the Tribunal dismissed the original application. It is in the said circumstances that the captioned original petition has been filed. 2.We have heard the learned counsel for the petitioner and the learned counsel appearing for respondents 5 and 12 and also the learned Government Pleader. **O.P.(KAT).75/2016** 3 3.For a proper appreciation of the case of the petitioner, a narration of facts, in succinct, is required. The petitioner entered into the service of Public Works Department as Draftsman Grade-I, on 7.12.1985. He was then a Diploma Holder in Civil Engineering. Later, he was promoted as Assistant Engineer on 18.10.1999 under the Diploma quota set apart for such promotion. Subsequently, the Departmental Promotion Committee (Higher) drew Annexure-A1 select list for promotion to the post of Assistant Executive Engineer (Civil) in the Department, on 12.3.2010. The petitioner's name was included in the list of diploma holders at Sl.No.43. While so, Annexure-A3 proposal was forwarded by the Chief Engineer to the Principal Secretary to Government, Public Works Department on 4.8.2010. As per Annexure-A3, the Chief Engineer reported three vacancies in the post of Assistant Executive Engineer available for promotion from among the category of Diploma holders. The petitioner's name was also recommended thereunder. In pursuance thereof, as per Annexure-A5 dated 30.11.2010, he was promoted to **O.P.(KAT).75/2016** 4 the post of Assistant Executive Engineer and accordingly, he joined the said post on 3.12.2010. In the meanwhile, he acquired B.Tech Degree in Civil Engineering from Kannur University. Evidently, the result of B.Tech examination was published on 17.8.2010 and he received the B.Tech Degree certificate dated 4.11.2010, on 13.12.2010. According to the petitioner, it was despatched from the University only on 10.12.2010 and to establish the same, he produced Annexure-A6 which is a copy of the postal envelope. After joining the post of Assistant Executive Engineer, he submitted Annexure-A7 dated 27.12.2010 which carries a request to enter the factum of his acquisition of B.Tech Degree in Civil Engineering in the Service Book and also for inclusion of his name in the seniority list of Assistant Executive Engineer under the Degree quota with effect from 3.12.2010 viz., the date of his promotion to the post of Assistant Executive Engineer. On its receipt, the Chief Engineer forwarded the same, under Annexure-A8 (in Ext.P1) to the Principal Secretary to Government, Public Works Department, with recommendation for its **O.P.(KAT).75/2016** 5 favourable consideration, as can be seen from it. Thereafter, as per Annexure-A9 dated 18.3.2011, his Service Book was returned to the Chief Engineer for inclusion of his name in the seniority list of Assistant Executive Engineers under the graduate quota. AnnexureA10 is the subsequent proceedings of the Chief Engineer dated 23.4.2011. It would reveal that the name of the petitioner and three others who acquired degree qualification were provisionally included in the provisional seniority list of Assistant Executive Engineers under the degree quota and objections, if any, in the matter was required to be submitted within one month. Thereafter, the Chief Engineer sought for a clarification on the issue of the inclusion of the names of the petitioner and one B.Sreekumar in the seniority list of Assistant Executive Engineers under the graduate quota stating that their date of examination and dates of certificate are prior to the date of their promotion. A copy of the same is seen marked as AnnexureA11 dated 16.8.2011. Subsequently, the Government have issued Annexure-A12 dated 27.9.2011 which is a clarification letter to the **O.P.(KAT).75/2016** 6 effect that since the petitioner and the other person had failed to exercise the option to come over to Degree quota while working as Assistant Engineers, their request for inclusion in the seniority list of Assistant Executive Engineers under the Degree quota could not be considered. Obviously, such a clarification was issued with reference to Rule 5 of the Kerala Engineering Service (Civil and General Branch) Rules (for short the 'Rules'). Aggrieved by Annexure-A12, the petitioner filed O.A.No.684 of 2012 before the Tribunal. As per Annexure-A13 order, the said O.A was dismissed. The petitioner filed O.P.(KAT).No.38 of 2014 before this Court challenging Annexure-A13. This Court, as per Annexure A14, found that Annexure-A12 herein viz., order dated 27.9.2011 was passed in blatant violation of the principles of natural justice and on that ground, set aside Annexure-A12. Furthermore, the first respondent was directed to re-consider the same and pass fresh orders on Annexure-A11 herein, with notice to the petitioner and after affording him an opportunity of being heard. In compliance with the directions **O.P.(KAT).75/2016** 7 thereunder, the petitioner was issued with notice and he was heard and Annexure-A20 order dated 19.01.2015 was passed. As per the same, reiterating the reasons, but in elaboration, the request of the petitioner for his inclusion in the seniority list of Assistant Executive Engineer under the Degree quota was rejected. Aggrieved by the said order, the petitioner filed O.A.No.233 of 2015 before the Tribunal. As per the impugned order, the Tribunal dismissed the said O.A. The captioned original petition has been filed in the said circumstances. 4.The reliefs sought for, as extracted hereinbefore, would reveal that the petitioner prayed for setting aside Annexure-A20 order whereby his request for inclusion in the seniority list of Assistant Executive Engineer under the Degree quota was rejected. Before the Tribunal, the petitioner has also sought for a direction commanding the respondents to change the date of effect of Annexure-A5 order dated 30.11.2010 whereby he was promoted to the post of Assistant Executive Engineer with reference to the date of occurrence of **O.P.(KAT).75/2016** 8 vacancy reported under Annexure-A3 viz., 4.3.2010. Evidently, the result of his B.Tech Degree Examination was published only after 4.8.2010, to be precise, only on 17.8.2010. Obviously, the very case of the petitioner is that he received the B.Tech Degree Certificate dated 4.11.2010 only on 13.12.2010. Thus, it is obvious that virtually the prayer of the petitioner was to treat his promotion which was effected to the post of Assistant Executive Engineer under the Diploma quota as a promotion under the Degree quota. 5.A scanning of Annexure-A20 order would reveal that the request of the petitioner for his inclusion in the seniority list of Assistant Executive Engineers under the Degree quota was declined holding that despite his acquisition of B.Tech Degree while working as Assistant Engineer, he had not exercised the option under the proviso to Rule 5(b) of the Rules before his promotion to the post of Assistant Executive Engineer. The petitioner assails the said reasoning as unreasonable and unsustainable mainly on the ground **O.P.(KAT).75/2016** 9 that on the date of occurrence of vacancy in the post of Assistant Executive Engineer, he was possessing only Diploma. According to him, he acquired B.Tech Degree only subsequent to the occurrence of vacancies in the said post which were filled up as per Annexure-A5. Relying on the decision of a Full Bench of this Court in **Varghese & others v. State of Kerala & others [1981 KLT 458 (FB)],** the learned counsel for the petitioner contended that the qualification on the date of occurrence of vacancies is the relevant factor for considering eligibility for promotion to any post and therefore, the fact that requisite qualification was acquired by an employee at the time of making the promotion is irrelevant. In other words, the entitlement to promotion has to be considered based on the qualification on the date of occurrence of vacancies. We may hasten to add here, in the light of the aforesaid contention of the petitioner, that the prayer of the petitioner to change the date of his promotion to the post of Assistant Executive Engineer with reference to the date of occurrence of vacancy reported under Annexure-A3, deserves to be **O.P.(KAT).75/2016** 10 rejected, even going by the very case of the petitioner. 6.A perusal of the reply affidavit filed on behalf of the official respondents before the Tribunal would reveal that the Department had also virtually conceded the contention of the petitioner that, what is relevant for consideration for promotion is the qualification on the date of occurrence of vacancy and not at the time of making the order of promotion. This position is well-nigh settled as can be seen from the Full Bench decision in **Varghese** ' case (supra). The aforesaid stand taken in the reply affidavit and the exposition of law in **Varghese** ' case (supra) would gain relevance while considering the further contentions of the petitioner. 7.The learned counsel for the petitioner relied on the aforesaid settled position of law as also the factual position to urge that the petitioner could not have exercised the option under the proviso to Rule 5(b) of the Rules for the purpose of getting promotion under the **O.P.(KAT).75/2016** 11 Degree quota at the time of occurrence of vacancy as the petitioner was then possessing only a Diploma in Civil Engineering. It is his contention that Annexure-A1 select list was prepared on 12.3.2010 and against one of the vacancies reported, he was proposed to be promoted under the Diploma quota on 4.8.2010 as per Annexure-A3. True that he was promoted to the post of Assistant Executive Engineer as per order dated 30.11.2010. It is the further contention that Annexure-A5 was issued pursuant to the proposal made as per Annexure-A3 dated 4.8.2010 and thereupon, the petitioner joined the post of Assistant Executive Engineer on 3.12.2010. Though the result of the B.Tech examination was published on 17.8.2010, the petitioner received the Degree certificate only on 13.12.2010. It is also his contention that Annexure-A1 and Annexure-A3 would reveal that the result of the B.Tech examination was published only after the occurrence of vacancies in the post of Assistant Executive Engineer. In the aforesaid factual background, the petitioner could not have exercised option to come over to Degree quota or made a request for **O.P.(KAT).75/2016** 12 making an entry of his acquisition of B.Tech Degree in the service records prior to Annexure-A5 order of promotion as he had received the Degree certificate only on 13.12.2010, it is contended. Within a couple of weeks from the date of receipt of the Degree certificate, the same was produced before the authorities along with a request to make an entry of the same in the service records, as is obvious from Annexure-A7. 8.In the light of the aforesaid contentions and factual position, the petitioner is confining his challenge against the rejection of his request for inclusion in the seniority list of Graduate Assistant Executive Engineers. Therefore, the question to be considered is whether after acquisition of B.Tech degree, the petitioner is entitled to get his name included in the seniority list of Graduate Assistant Executive Engineers despite the non-exercise of option to come over to Degree quota? For a proper consideration of the said question, it is worthwhile to refer to Rule 5(a) of the Rules. It reads thus:- **O.P.(KAT).75/2016** 13 **5.Promotion as Executive and Assistant Executive Engineers--** (a) A person who obtains the A.M.I.E (India) Diploma or a pass in Section A & B of the A.M.I.E of the Institution of Engineers (India) in Civil or Mechanical Engineering 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 A.M.I.E (India) Diploma or a pass in Section A & B of the A.M.I.E of the Institution of Engineers (India) in Civil or Mechanical Engineering, possessed the qualification mentioned in item (i) and Section A in item (ii) in the Annexure have been considered. 9.Rule 5(a) of the Rules that deals with promotion of Assistant Executive Engineers to the post of Executive Engineer provides that if a person obtains A.M.I.E (India) Diploma or a pass in Section A & B of the A.M.I.E of the Institution of Engineers (India) in Civil or Mechanical Engineering after appointment as Assistant Executive Engineer, he 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 aforesaid Diploma or a pass in Section A & B **O.P.(KAT).75/2016** 14 of the A.M.I.E of the Institution of Engineers (India) in Civil or Mechanical Engineering, have been considered. We will now advert to Rule 5(b) of the Rules and its proviso, dealing with promotion of Assistant Engineers to the post of Assistant Executive Engineers and they read thus:- 5(b). Vacancies in the category of Assistant Executive Engineers shall be filled up from among Assistant Engineers in the ratio of 75:20:5 respectively from among-- (1)Persons possessing any of the qualifications mentioned in item (i) or in section--A in item (ii) of the Annexure. (2)Those possessing any of the qualifications mentioned in Section B in item (ii) of the Annexure, and (3)Those possessing the Draftsman Certificate of the College of Engineering, Guindy or S.M.T. Overseer's Certificate. A person, who while holding the post of Assistant Engineer passes Sections A and B of the A.M.I.E (India) Examination or a Degree in Engineering of a recognised University shall be eligible for promotion as Assistant Executive 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 the A.M.I.E (India) Examination or a Degree in Engineering of a **O.P.(KAT).75/2016** 15 recognised University possessed the qualifications mentioned in item (i) in the Annexure have been considered. Provided that it will be left to the option of such person to continue among the Assistant Engineers possessing the qualifications mentioned in Section-B in item (ii) of the Annexure and claim promotion against the quota allotted to them. 10.Rule 5(a) and 5(b) of the Rules are almost similar though applicable to different categories of posts under the circumstances contemplated thereunder. At the same time, proviso under Rule 5(b) leaves open an option to the person concerned to be exercised to continue among the Assistant Engineers possessing the qualifications in section-B in item (ii) of the Annexure and claim promotion against the quota allotted to them. However, under similar circumstances, the right of option to continue under diploma quota is not given to persons who obtain A.M.I.E (India) Diploma or a pass in Section A & B of the A.M.I.E of the Institution of Engineers (India) in Civil or Mechanical Engineering after appointment as Assistant Executive Engineer. **O.P.(KAT).75/2016** 16 11.A bare perusal of Rules 5(a) and 5(b) of the Rules would reveal that a proviso offering the right of option to continue in the Diploma quota is conspicuously absent under Rule 5(a) in the case of Assistant Executive Engineers whereas it is specifically provided and available under Rule 5(b) in the case of Assistant Engineers. 12.A perusal of Annexure-A20 (in Ext.P1) would reveal that while rejecting the request of the petitioner for inclusion of his name in the seniority list of Graduate Assistant Executive Engineers, it was held that though he passed B.Tech Degree in August, 2010 and the University issued him B.Tech Degree as per certificate dated 4.11.2010 viz., before Annexure-A5 order of promotion dated 30.11.2010, he had not opted to come over to the Degree quota. Based on such factual statements, it was further observed thereunder that while working as Assistant Engineer, he acquired B.Tech Degree and that the argument of the petitioner that he got B.Tech Certificate only on 13.12.2010, i.e., after he joined in the post of Assistant **O.P.(KAT).75/2016** 17 Executive Engineer on 3.12.2010 could not be accepted as a reason for including his name in the seniority list of Graduate Assistant Executive Engineers. Annexure-A20 also would reveal the reason for rejecting his request for inclusion in the seniority list of Assistant Executive Engineers under the Degree quota as non-exercise of option to come over to the Degree quota while working as Assistant Engineer. It is also stated therein that the date of the Degree Certificate i.e., 4.11.2010 issued by the Kannur University is the actual date of acquiring the B.Tech Degree by the petitioner and as on that date, he was an Assistant Engineer and hence, his case fell under Rule 5(b) of the Rules. 13.We have already adverted to Rule 5(a) and Rule 5(b), of the Rules and its proviso. In this context, it is to be noted that in Annexure-A20 (in Ext.P1), the respondents have correctly stated that the eligibility for promotion has to be determined with reference to the qualification possessed on the date of occurrence of vacancy. **O.P.(KAT).75/2016** 18 14.In this case, obviously, a select list was prepared as is evident from Annexure-A1 (in Ext.P1). It is dated 12.3.2010. Obviously, the name of the petitioner was included thereunder in the list of diploma holders found eligible for promotion to the category of Assistant Executive Engineers (Civil) by the Departmental Promotion Committee (Higher). Annexure A-20 (in Ext.P1) itself would reveal that the result of the petitioner in B.Tech Degree Examination was published on 17.8.2010. The statement in Ext.P7 to the effect that the Kannur University issued him B.Tech Degree as per certificate dated 4.11.2010 is not true to facts. It is true that the certificate is dated 4.11.2010. The petitioner has produced Annexure-A6 which is a photocopy of the envelope. It would reveal that it was sent from the University only in December, 2010. The contention of the petitioner that he received the Degree Certificate dated 4.11.2010 only on 13.12.2010 cannot be disputed in the said circumstances in the absence of evidence to the contrary. Even otherwise, in view of the position of law settled in **Varghese** ' case (supra) and also the clear **O.P.(KAT).75/2016** 19 stand of the respondents that the petitioner could not have been included in the list of degree holders in the DPC select list since as on the date of occurrence of vacancy, he had not passed the B.Tech Degree Examination. In other words, as on the date of occurrence of vacancy, he was only having the Diploma in Civil Engineering going by the common case. Even otherwise, the respondents got no case that as on the date of occurrence of vacancy, the petitioner had acquired B.Tech Degree. Under such circumstances, the petitioner is perfectly justified in contending that he could not have legally exercised the option to come over to Degree quota since by that time, he had not acquired the B.Tech Degree and hence, he could have found a place only in the diploma holders list. When there is nothing on record revealing that it is only after occurrence of vacancy in the post of Assistant Executive Engineers the petitioner acquired B.Tech Degree, the subsequent acquisition of the Degree would only make him eligible to come over to the category of Assistant Executive Engineers under the Degree quota for the purpose of Rule 5(a) of the **O.P.(KAT).75/2016** 20 Rules. In other words, he could seek for promotion from the said post to the post of Executive Engineer only after consideration of those Assistant Executive Engineers who on the date of his acquisition of the said qualification were already in that grade with the qualification prescribed under item (i) and Section A in item (ii) in the Annexure to the Rules. As noticed hereinbefore, in the absence of any provision for exercising the option to remain in the category of Assistant Executive Engineers under diploma quota even after acquiring the B.Tech Degree for the purpose of seeking promotion from the category of Assistant Executive engineers to Executive Engineers, the reason given by the respondents to the effect that the petitioner had failed to exercise option in terms of the proviso to Rule 5(b) of the Rules cannot be sustained. As noticed earlier, Rule 5(a) of the Rules offered no right to opt to continue in the category of Assistant Executive Engineers under diploma quota to a person who acquired qualification like the petitioner. Having acquired the qualification of B.Tech Degree after the occurrence of vacancy in the post of Assistant **O.P.(KAT).75/2016** 21 Executive Engineers, the petitioner could aspire promotion to the post of Executive Engineers only under the quota of Assistant Executive Engineers (degree quota) by virtue of application of Rule 5(a) of the Rules and he will not be having an option to continue in Diploma quota in the absence of any provision akin to the proviso to Rule 5(b) of the Rules. We have already found that the said acquisition of qualification would not enable the petitioner to claim promotion to the post of Assistant Executive Engineer with effect from the date of occurrence of vacancy or even from the date of Annexure-A5, the date of order of promotion under the Degree quota. At the same time, in the light of Rule 5(a) of the Rules, in order to get further promotion from the category of Assistant Executive Engineer to the post of Executive Engineer, certainly, he got an absolute right to claim for his inclusion in the list of Assistant Executive Engineer (degree quota). This is because after the acquisition of B.Tech Degree and getting promotion to the post of Assistant Executive Engineer, no option is available to him to remain in the list of Assistant Executive Engineer **O.P.(KAT).75/2016** 22 (diploma quota), as noticed hereinbefore. In such circumstances, rejection of the claim of the petitioner for inclusion of his name in the list of Assistant Executive Engineer (degree quota) strictly in accordance with Rule 5(a) of the Rules for the purpose of further promotion invites interference. There can be no doubt that without his inclusion in the said list, the petitioner could not be considered for further promotion under the Degree quota, as and when such turn arose. Since this right of the petitioner was declined under AnnexureA20, it is liable to be set aside to that extent. Hence, Annexure-A20 to the extent it rejects the prayer of the petitioner for his inclusion in the seniority list of Assistant Executive Engineers under the Degree quota is set aside. Needless to say that in the light of the observations made in this judgment and taking note of Rule 5(a) of the Rules and the relevant date on which the petitioner acquired the Degree and made the requisition to make an entry relating the same in his service records, his name shall be included in the seniority list of Assistant Executive Engineers under the Degree quota. Taking into account the **O.P.(KAT).75/2016** 23 fact that the petitioner is due to retire from service on 31/5/2017, it is only proper to consider his claim for promotion to Assistant Executive Engineer in accordance with law, as expeditiously as possible if he falls within the zone of consideration, based on inclusion in the seniority list of Graduate Assistant Executive Engineers. Ordered accordingly. This original petition is allowed as above. Sd/- **C.T. RAVIKUMAR (JUDGE)** **Sd/ANIL K.NARENDRAN** **(JUDGE)** **spc/** **O.P.(KAT).75/2016** 24 **C.T. RAVIKUMAR, J.** **O.P.(KAT).75/2016** 25 **JUDGMENT September, 2010**