S. Satheesh Kumar & T. S. Raveendranadhan vs. K. S. Rajan & State of Kerala & The Chief Engineer, PWD Administration

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE THE CHIEF JUSTICE MRS. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE TUESDAY, THE 11TH DAY OF DECEMBER 2012/20TH AGRAHAYANA 1934 OP(KAT).No. 3719 of 2012 (Z) ---------------------------- AGAINST THE ORDER IN TA.1576/2012 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 07/09/2012 ................... ## PETITIONERS/THIRD PARTIES: --------------------------------- 1. S.SATHEESH KUMAR,, ASSISTANT EXECUTIVE ENGINEER PUBLIC WORKS DEPARTMENT, BUILDINGS SUB DIVISION CHEMBUKAVU, THRISSUR. ## 2. T.S. RAVEENDRANADHAN ASSISTANT EXECUTIVE ENGINEER PUBLIC WORKS DEPARTMENT, ENVIRONMENT CELL OFFICE OF THE CHIEF ENGINEER (DESIGN AND ADMINISTRATION) THIRUVANANTHAPURAM. 695 0 BY ADVS.SRI.C.P.SUDHAKARA PRASAD (SR.) SRI.S.RAMESH SRI.NAVEEN.T SMT.POOJA SURENDRAN ## RESPONDENTS/APPLICANT & RESPONDENTS IN THE T.A. : ---------------------------------------------------------------- 1. K.S.RAJAN, ASSISTANT EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT, SPECIALL BUILDINGS, MEDICAL COLLEGE SUB DIVISION, PMG, THIRUVANANTHAPURAM - 695 033. 2. STATE OF KERALA, REPRESENTED BY THE SECRETARY, PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 3. THE CHIEF ENGINEER, - P.W.D. ADMINISTRATION, THIRUVANANTHAPURAM - 695 001. R1 BY ADV. SRI. K.P.SATHEESAN R2 & R3 BY SPL.GOVERNMENT PLEADER, SMT. GIRIJA GOPAL THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 11-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 3719 of 2012 (Z) APPENDIX PETITIONERS' EXHIBITS : ANNEXURE A1- TRUE COPY OF THE ORDER DATED 15-12-2007 OF THE CHIEF ENGINEER, PWD ADMN. ANNEXURE A2 - TRUE COPY OF THE RELEVANT EXTRACT OF THE FINAL SENIORITY LIST OF ASST. ENGINEERS (CIVIL-GRADUATES) APPOINTED DURING THE PERIOD FROM 1-4-1999 TO 29-2-2004 PUBLISHED AS PER ANNEXURE A1. ANNEXURE A3 - TRUE COPY OF THE T.A.NO.1576/2012 (WP NO.26522/2007) FILED BY THE 1ST RESPONDENT EXHIBIT-P1 - TRUE COPY OF THE ORDER, G.O. DATED 19-6-2004 (RELEVANT EXTRACT) ISSUED BY THE GOVERNMENT - EXHIBIT-P2 - TRUE COPY OF THE REPRESENTATION DT.9-1-2006 FILED BY THE 1ST RESPONDENT BEFORE THE GOVERNMENT - EXHIBIT-P3 - TRUE COPY OF THE JUDGMENT DATED 12-4-2007 IN WPC. NO.12670/2007 OF THIS HON'BLE COURT. - EXHIBIT-P4 - TRUE COPY OF THE ORDER, G.O. DATED 30-6-2007 ISSUED BY THE GOVERNMENT - ANNEXURE A4 - TRUE COPY OF THE COUNTER AFFIDAVIT DATED 10-2-2009 FILED BY THE GOVERNMENT IN WPC.NO.26522/2007 (TA NO.1576/2012) - ANNEXURE A5 - TRUE COPY OF THE ADDITIONAL STATEMENT FILED BY THE GOVERNMENT IN T.A.NO.1576/2012 - ANNEXURE A6 - TRUE COPY OF THE ORDER DATED 7-9-2012 IN T.A. NO.1576/2012 (WP 26522/2007) OF THE KERALA ADMINISTRATIVE TRIBUNAL ANNEXURE A7 - TRUE COPY OF THE SELECT LIST PUBLISHED BY THE GOVERNMENT AS PER NOTIFICATION G.O. DATED 5-5-2012. /TRUE COPY/ PA TO JUDGE ## **Manjula Chellur, C.J. & A.M. Shaffique, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - ## O.P.(KAT) No. 3719 of 2012 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11[th] day of December, 2012 ## **JUDGMENT** ## **Manjula Chellur, C.J.** The present petition is filed by third parties aggrieved by the order of Kerala Administrative Tribunal (for short 'KAT') dated 07.09.2012 in T.A. No.1576 of 2012. The 1[st] respondent herein approached KAT seeking the following reliefs: “i. to issue a writ of certiorari or such other appropriate writ, order or direction quashing Ext.P4 order G.O.(Rt) No.864/07/PWD dated 30.06.2007 issued by the first respondent as it is illegal, arbitrary and void; ii. to issue a writ of mandamus or order or direction to the first respondent to include the petitioner under Degree quota as junior most Assistant Executive Engineer with effect from 19.06.2004; iii. to declare that the petitioner is entitled to be included under Degree quota with effect from 19.06.2004 in the category of Assistant Executive Engineers for further promotion and consequential benefits; iv. to issue such other appropriate writ, order or direction as is deemed just and necessary in the circumstances of the case.” 2. So far as the main relief to consider his case for promotion as Assistant Executive Engineer; his contention was OP(KAT) No. 3719 of 2012 -:2:- that as he has the requisite qualification prescribed under Rule 5 (a) of the Special Rules, with the aid of Rule 28(a) of the Kerala State and Subordinate Services Rules, 1958 (for short 'K.S. & S.S.R') (General Rules), he is entitled for the same. KAT allowed the application. Aggrieved by the same, the petitioners are before us. The brief facts that led to the filing of the application before the Tribunal are as under. 3. The applicant before the Tribunal was working as Assistant Executive Engineer as on the date of approaching the Tribunal. As a matter of fact, he joined the Department as Assistant Engineer as a diploma holder in the year 1984. This is not in dispute. It is also not in dispute that he belongs to the Scheduled Caste. During his service as Assistant Engineer, he obtained B.Tech degree in April 1997. It is not in dispute that he did not exercise his option to come to degree holder quota after obtaining degree in 1997 and continued in the diploma holder quota as Assistant Engineer and ultimately he was promoted as Assistant Executive Engineer under diploma quota in the year 2004. When posts in the cadre of Executive Engineer fell vacant, he wanted to opt out to the post as an Assistant Executive OP(KAT) No. 3719 of 2012 -:3:- Engineer from degree holder quota so as to consider his case for promotion. His representation came to be refused as per Ext.P4, therefore he approached this Court by filing a writ petition with the constitution of KAT, the same came to be transferred to KAT. 4. The stand of the applicant before KAT was, in the light of Rule 5(a) and 5(b) of the Kerala Engineering Service (Civil and General Branch) Rules he is entitled for promotion as Executive Engineer from the degree holder quota as Assistant Executive Engineer. This was resisted by the Department contending that the applicant having exercised the option provided under the proviso to Rule 5(b), he was not entitled to seek again the benefit as Assistant Executive Engineer from degree holder quota, as such benefit is not envisaged under Rule 5(a) and so also Note 2 of Rule 5(b) clearly mandates two seniority lists to be maintained for the purpose of promotion and also reversion so far as Assistant Executive Engineers who were promoted as diploma holders and also degree holders quota of Assistant Executive Engineers. OP(KAT) No. 3719 of 2012 -:4:- 5. In order to understand the real question of controversy, one has to understand what exactly the Special Rules contemplate. Rule 4(a) refers to qualification regarding age. The age should be between 21 to 39 years for direct recruitment candidates. Rule 5 has sub rules as 5(a) and 5(b) with proviso and also Notes 1 and 2. The entire Rule 5 along with sub rules is relevant so far as the present case is concerned which reads as under: “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.] [(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 OP(KAT) No. 3719 of 2012 ## -:5:- 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 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. Note 1- The Separate quota allotted to the Certificate Holders will be abolished as soon as the holders of the S.M.T. Overseers Certificate and Draftsman Certificate of the College of Engineering, Guindy in service are absorbed as Assistant Engineers. [Thereafter the ratio will revert to 3:1 on cadre strength between Degree holders and diploma holder] OP(KAT) No. 3719 of 2012 -:6:- Note 2- The ratio fixed for promotion to the cadre of Assistant Executive Engineers will be applied to the cadre strength of Assistant Executive Engineers as a whole ie., to the total number of posts of Assistant Executive Engineers in the Department and not to vacancies as they arise. Separate seniority lists will be maintained for the purpose in the cadre of Assistant Executive Engineers for degree holders/diploma holders and certificate holders and promotions and reversions of each category of Officers will be confined to the quota allowed for each category within the cadre strength notwithstanding anything contained in the Kerala State and Subordinate Services Rules]” 6. The stand of 1[st] respondent applicant before Tribunal was having allowed him to have the benefit under proviso to Rule 5(b), he should also be allowed to have such benefit being a degree holder even for the promotion to the post of Executive Engineer. According to him, irrespective of Note 2, once he acquires degree, he has to be considered as a degree holder for all practical purposes irrespective of his diploma with which he joined the department. Therefore, the contention of the applicant was, being a degree holder, irrespective of his diploma, he is entitled to get promotion as a degree holder quota applicant to the post of Executive Engineer. The Tribunal, after referring to Rule 5(a) and 5(b) without reference to Notes 1 and 2 of Rule 5, OP(KAT) No. 3719 of 2012 -:7:- proceeded to accept the stand of the applicant by referring to Rule 28(a) of K.S. & S.S.R. 7. Aggrieved by the same, the present Original Petition is filed by third parties who were not parties to the Application before KAT. According to the petitioners, having secured a promotion by virtue of Rule 5(b) with proviso and in the light of Note 2, the 1[st] respondent herein was not entitled for promotion to the post of Executive Engineer from degree holder quota. It is not in dispute that so far as posts of Assistant Executive Engineer, the category had to be filled up among Assistant Engineers in the ratio of 75:20:5 i.e. degree holders, diploma holders and certificate holders respectively. Similarly, it is not in dispute that the ratio between degree holders and diploma holders so far as Executive Engineer post is concerned, the ratio is 95:5. The entire problem arises because of the claim of 1[st] respondent that he has to be treated as degree holder so far as promotion to the post of Executive Engineer from the post of Assistant Executive Engineer. 8. Learned Senior counsel Mr.Sudhakara Prasad arguing for the petitioners invited our attention to Note 2 of Rule OP(KAT) No. 3719 of 2012 -:8:- 5(b) to contend that once a benefit accrues to the 1[st] respondent by virtue of proviso to Rule 5(b) the seniority of the 1[st] respondent has to be fixed in accordance with Note 2 as it clearly indicates notwithstanding anything contained in the General Rules for all purposes of promotion and reversion there has to be two seniority lists; one meant for degree holders and the other meant for diploma holders. In other words, irrespective of the 1[st] respondent obtaining a degree in 1997, having taken the benefit of promotion as Assistant Executive Engineer in 2004 as diploma holder, because of the proviso he cannot be allowed to come to the seniority list of degree holders, as for all practical purposes he continues to be in the seniority list of diploma holders which is clearly indicated in Note 2. 9. Learned Senior Advocate also invites our attention to another legal deficit in the application of the 1[st] respondent before KAT. He clearly indicates at paragraph 11 of this petition that about 12 persons who are degree holders finding their seniority from Serial No.1 to 12 in the seniority list of degree holders would be adjusted and as brought on record, from Serial No.13 onwards up to Serial No.51 in the select list of Assistant OP(KAT) No. 3719 of 2012 -:9:- Executive Engineers for promotion as Executive Engineers would be affected. Annexure A7 is the select list for promotion to the post of Executive Engineer wherein two different lists; degree holders and also diploma holders are indicated. Apparently Annexure A7 select list does not figure the name of the 1[st] respondent herein as he did not fall within the 5% quota meant for the Assistant Executive Engineers from diploma holders list. As a matter of fact, Tribunal did not have the occasion to see Annexure A7. The question is whether the 1[st] respondent applicant could have proceeded with the matter before Tribunal without impleading the persons who would be affected by virtue of the order of KAT after accepting his stand. Serial Nos.13 to 51 in Annexure A7 would be affected as the 1[st] respondent would come between Serial No.12 and 13, if his contention that he has to be considered as a degree holder from Assistant Executive Engineers seniority list (degree holders) is accepted. 10. Learned counsel appearing for the petitioners relies on AIR 1998 SCC 331 in the case of **Arun Tewari v. Zila Mansavi Shikshak Sangh** in which Paragraph 12 is relevant in this case which reads as under: OP(KAT) No. 3719 of 2012 -:10:- “12. All the original applicants before the Tribunal who have challenged these provisions for recruitment of Assistant Teachers under the Operation Black Board Scheme did not possess the requisite qualifications for being selected under the said scheme as Assistant Teachers. Their names do not figure among the lists forwarded by the concerned District Employment Exchanges. Surprisingly, the applications filed by all these persons and/or groups before the Tribunal did not make the selected/appointed candidates who were directly affected by the outcome of their applications, as party respondents. The Tribunal has passed the impugned order without making them parties or issuing notice to any of them. The entire exercise is seriously distorted because of this omission. They have now filed the present appeals after they have been granted leave to file the appeals. In the case of Prabodh Verma v. State of Uttar Pradesh,(1984) 4 SCC 251 at page 273: (AIR 1985 SC 167 at p.180, this Court observed that in the case before them there was a serious defect of non-joinder of necessary parties and the only respondents to the Sangh's petition were the State of Uttar Pradesh and its concerned officers. The employees who were directly concerned were not made parties- not even by joining some of them in a representative capacity, considering that their number was too large for all of them to be joined individually as respondents. This Court observed that High Court ought not have decided a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them before it OP(KAT) No. 3719 of 2012 ## -:11:- as respondents in a representative capacity. These observations apply with equal force here. The same view has been reiterated by this Court in Ishwar Singh v. Kuldip Singh, 1995 Supp (1) SCC 179, where the Court said that a writ petition challenging selection and appointments without impleading the selected candidates was not maintainable. (Vide also J.Jose Dhanapaul v. S.Thomas, (1996) 3 SCC 587, paragraph 4). On this ground alone the decision of the Tribunal is vitiated. However, eve on merit we do not find that the judgment of the Tribunal can be sustained.” 11. Then coming to the factual situation, as already stated above, having taken the benefit of proviso to Rule 5(b) of the Special Rules, whether the 1[st] respondent could come back to seniority list of Assistant Executive Engineers as a degree holder is the question to be considered. Note 2 of Rule 5(b) clearly indicates, it is a _non obstante_ clause which overrides all other provisions even if they are beneficial to the parties. In this case, by virtue of Note 2 of Rule 5(b) definitely the Tribunal could not have taken aid of Rule 28(a) of K.S. & S.S.R., as Special Rules override the General Rules and going by the Clause in Note 2 itself which is already stated above. From paragraph 7 onwards Tribunal in its order proceeded to hold that Rule 28(a) of K.S. & S.S.R. has to be applied. Thus, if the benefit available OP(KAT) No. 3719 of 2012 -:12:- to a person as per Rule 28(a) is applied and allowed, the applicant has the right to come back in the seniority list of degree holders as Assistant Executive Engineer. By doing this, serial numbers from 13 to 51 at Annexure A7 would be adjusted as the applicant comes to the place of serial number 13. None of these affected parties were made parties to the proceedings. By virtue of law laid down by the Apex Court in the case of **Arun Tiwari** 's case(supra) the application before KAT is not maintainable for non-joinder of necessary parties. All along State was contending that Rule 5(b) benefit cannot be continued to apply to the case of the applicant even for the promotion of Executive Engineer and Rule 5(a) alone has to be applied and no other rules were applicable. In the absence of application of Rule 28(a) of General Rules, one has to understand the position and seniority of the applicant only from reading of Rule 5 of General Rules. 12. Learned counsel for the 1[st] respondent categorically contends that Rule 5 starts with the Head Note “Promotion as Executive and Assistant Executive Engineers”. Therefore, proviso at Rule 5(b) is also applicable to Rule 5(a). Reading of the entire Rule 5 clearly indicates, if 1[st] respondent OP(KAT) No. 3719 of 2012 -:13:- was eligible as indicated at Rule 5(a) for promotion to the post of Executive Engineer by virtue of acquiring a degree, while serving as Assistant Executive Engineer, he would be considered for the promotion to the post of Executive Engineer as the junior most Assistant Executive Engineer in the said list. The very fact that he did not acquire degree as Assistant Executive Engineer much prior to becoming an Assistant Executive Engineer would exclude the case of the applicant from Rule 5(a). Having taken the benefit under Rule 5(b) his seniority has to be maintained in the cadre of Assistant Executive Engineers only as diploma holder. When once his seniority is continued as diploma holder in the cadre of Assistant Executive Engineer, his next promotion also has to be considered depending upon his seniority and availability of vacancy for diploma holders in the cadre of Executive Engineers. Just because his chances would be bleak by virtue of ratio of 5% alone being demarcated for promotion to the post of Executive Engineer from the cadre of Assistant Executive Engineers(diploma holders), he cannot be allowed to leave his seniority of Assistant Executive Engineer as a diploma holder and chooses to come to the seniority of Assistant Executive Engineer OP(KAT) No. 3719 of 2012 -:14:- (degree holder). The argument of learned counsel for the 1[st] respondent that he was a degree holder irrespective of taking benefit by virtue of proviso is not acceptable to us as similar provision to Rule 5(a) was consciously omitted by the rule maker. 13. The Special Rules was confirmed as legal by the judgment of Apex Court in the case of **Chandravathi v. Saji** [2004(2) KLT 320(SC)]. Therefore, there is no question of applying any other rule other than Rule 5(a) and (b) of Special Rules to the facts of the present case. If his case is excluded from Rule 5(a), the only rule available is Rule 5(b) along with Note 2. As already stated above, the application of Note 2 does not permit the applicant to claim his seniority as a degree holder, therefore his seniority for next promotion as Executive Engineer has to be only from the diploma holder quota. 14. In that view of the matter, we are of the opinion, the Tribunal misled itself by applying Rule 28(a) of K.S. & S.S.R totally ignoring Note 2 of Rule 5(b). In view of the above discussions and reasoning, we are of the view that the petition deserves to be allowed. OP(KAT) No. 3719 of 2012 -:15:- Accordingly this Original Petition is allowed by setting aside the order of KAT dated 07.09.2012 in T.A.No.1576 of 2012. If any consequential action is taken by the Department subsequent to the disposal of the matter before KAT, the same has to be undone in the light of the above observations. **Manjula Chellur, Chief Justice.** **A.M. Shaffique, Judge.** ttb