Sali C.I. v. Sabu Paul Mulerekkal and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **FRIDAY, THE 17TH DAY OF JUNE 2016/27TH JYAISHTA, 1938** **WP(C).No. 20850 of 2008 (F) ----------------------------** ## **PETITIONER(S): -------------** **SALI C.I., ASSISTANT ENGINEER** **ENGINEERING SUB DIVISION,, KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA., RESIDING AT FLAT NO. H 34, VETERINARY COLLEGE CAMPUS, P.O. MANNUTHY, THRISSUR.** ## **BY ADV. SRI.MILLU DANDAPANI** **RESPONDENT(S):** - **--------------** ## **1. SHRI SABU PAUL MULEREKKAL** - **ASSISTANT ENGINEER, NOW PROMOTED AS ASSISTANT EXECUTIVE ENGINEER, ENGINEERING SUB DIVISION, POOKKDU, WAYANAD.** ## **2. SHRI MOHAMMED IRSHAD B** **ASSISTANT ENGINEER, NOW PROMOTED AS, ASSISTANT EXECUTIVE ENGINEER, ENGINEERING SUB DIVISION, VELLAYANI, THIRUVANANTHAPURAM** ## **3. SHRI P.K.ABDUL KHADER** - **ASSISTANT EXECUTIVE ENGINEER,, ENGINEERING DIVISION, TAVANNUR.** **4. SMT. M.VIJAYAKUMARI, ASSISTANT EXECUTIVE ENGINEER,, ENGINEERING SUB DIVISION, COLLEGE OF VETERINARY AND ANIMAL SCIENCES, POOKOD,, WAYANAD, NOW WORKING AT ENGINEERING DIVISION,, PANANGAD.** **5. KERALA AGRICULTURAL UNIVERSITY** **VELLANIKKARA, THRISSUR, REPRESENTED BY ITS, REGISTRAR.** **R,R2 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY** **BY ADV. SMT.N.SANTHA BY ADV. SRI.S.A.ANAND R,R1 BY ADV. SRI.N.SUGATHAN R,R3 BY ADV. SRI.B.UNNIKRISHNA KAIMAL R,R4 BY ADV. SRI.V.V.SURENDRAN R,R4 BY ADV. SRI.P.A.HARISH R5 BY ADV. SRI.BABU JOSEPH KURUVATHAZHA,SC,KERALA AGRICULTURAL UNIVERSITY R BY SRI.RENJITH THAMPAN,SC,KERALA AGRL.UTY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-06-2016, ALONG WITH WPC. 29942/2008, WPC. 32996/2008, WPC. 33568/2008, WPC. 26536/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) 20850/2008** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **P1-PHOTOCOPY OF NOTIFICATION NO.63546/P5/76/AD.DT 23.10.76** **P2-PHOTOCOPY OF NOTIFICATION NO.GA/E3/4574/87(I)DATED 16.8.2003** **P3- PHOTOCOPY OF NOTIFICATION NO.GA/E3/4457/87(I)DATED 30.09.2003** **P4-PHOTOCOPY OF JUDGMENT OF THIS HONOURABLE COURT DATED 9.8.2007 IN OP NO.13820/2000T** **P4(A)-PHOTOCOPY OF JUDGMENT OF THIS HONOURABLE COURT DT 25.10.2007 IN WPC 36578/2003D** **P4(B)-PHOTOCOPY OF JUDGMENT OF THIS HONOURABLE COURT DT 26.10.2007 IN O.P.NO.8933/2004 L** **P4(C)-PHOTOCOPY OF JUDGMENT OF THIS HONOURABLE COURT DT 3.2.2008 IN W.A.NO.3014/2007** **P5- PHOTOCOPY OF ORDER NO.GA/A3/20203 DT 23.6.2008 OF THE FIFTH RESPONDENT** **P6-TRUE COPY OF ORDER NO.GA/A3/20162/13 DT 20.8.2013 ISSUED BY THE FIFTH RESPONDENT** **P7-TRUE COPY OF PROMOTION ORDER NO.GA/A3/17890/94 DT 1.7.1997 ISSUED BY THE FIFTH RESPONDENT UNIVERSITY** **P8-TRUE COPY OF PROVISIONAL SENIORITY LIST OF ASSISTANT ENGINEERS (CIVIL, MECHANICAL AND ELECTRICAL) AS ON 1.1.2000.** **P9-TRUE COPY OF PROVISIONAL DEGREE CERTIFICATE DT 7.6.2003 ISSUED TO TE FIRST RESPONDENT** **P10-TRUE COPY OF RTI APPLICATION NO.R.T.I/2012 DT 2.5.2012 RECEIVED UNDER THE RTI ACT** **P11-TRUE COPY OF INFORMATION NO.EE/VII/288/2012/RTI DT 16.4.2012 RECEIVED FROM THE CALICUT UNIVERSITY UNDER THE RTI ACT** ## **P12-TRUE COPY OF RTI APPLICATION SUBMITTED TO THE DEPUTY REGISTRAR OF FIFTH RESPONDENT UNIVERSITY** ## **P13-TRUE COPY OF REPLY FURNISHED BY THE FIFTH RESPONDENT UNDER THE RTI ACT** **P14-TRUE COPY OF ORDER NO.GA/J1/20464/99 DT 15.4.2000 OF THE FIFTH RESPONDENT UNIVERSITY** ## **RESPONDENTS EXHIBITS** **R2(A)-TRUE COPY OF ORDER NO.GA/A3/40653/90 DT 20.5.1993 OF THE VICE CHANCELLOR OF THE UNIVERSITY** **R2(B)-TRUE COPY OF APPLICATION DT 22.3.2009 UNDER THE RIGHT TO INFORMATION ACT 2005** **R2(C)-TRUE COPY OF LETTER NO.GH/A3/9216/09 DT 20.4.2009 OF THE DEPUTY REGISTRAR AND PUNLIC INFORMATION OFFICER OF THE KERALA AGRICULTURAL** ## **UNIVERSITY** **R2(D)-TRUE COPY OF JUDGMENT IN O.P 10418/03-m OF THIS HON'BLE COURT** **R2(E)- TRUE COPY OF JUDGMENT IN W.A. 164/2008 OF THIS HON'BLE COURT** **R2(F)- TRUE COPY OF ORDER NO.GA/A3/41180/2000 DT 25.11.2008 OF THE REGISTRAR OF THE KERALA AGRICULTURAL UNIVERSITY** **R2(G)- TRUE COPY OF LETTER NO.GA/A3/28874/03/L.DIS DATED 30.8.2003 OF THE REGISTRAR OF THE UNIVERSITY** **R2(H)-TRUE COPY OF THE ORDER NO.GA/A3/23343/2005 DT 7.3.2007 OF THE REGISTRAR OF THE KERALA AGRICULTUIRAL UNIVERSITY** **TRUE COPY** **SKS** **P.A TO JUDGE** ## **A.K. JAYASANKARAN NAMBIAR, J.** ## **............................................................... W.P (C) Nos. 20850, 29942, 32996 & 33568 of 2008 & W.P (C) No. 26536 of 2009** **................................................................ Dated this the 17[th] day of June, 2016** ## **JUDGMENT** Since all these writ petitions challenge a common Order dated 23.06.2008 passed by the respondent University, they are taken up for consideration together and disposed by this common judgment. For the sake of convenience, the reference to facts and exhibits is from W.P.(C).No.20850 of 2008. 2. The petitioner was appointed as First Grade Overseer in the respondent University with effect from 21.10.1988. At the time of being appointed as such, the petitioner possessed a Diploma in Civil Engineering. The petitioner was thereafter promoted as Assistant Engineer with effect from 20.05.1993. Thereafter she acquired the B.Tech Degree in Civil Engineering on 06.01.2003. The issue involved in all these writ petitions is with regard to the inter se claims of the petitioners and the contesting respondents to the promotion post of the Assistant Executive Engineer under the respondent University. 2 W.P (C) Nos. 20850, 29942, 32996 & 33568 of 2008 & 26536 of 2009 3. As per Ext.P1 recruitment rules that were in vogue in the respondent University, prior to 16.08.2003, the post of Assistant Engineer (since re-designated as Assistant Executive Engineer) could be filled only by Degree holders with five years experience in the grade of Junior Engineer (since re-designated as Assistant Engineer). The said recruitment rules were subsequently amended by Ext.P2 notification dated 16.08.2003 (with effect from 29.01.2003) and from that date onwards, the post of Assistant Executive Engineer could be filled up by Degree and Diploma holders in the ratio of 3:2. By a note appended to the Rules, it was made clear that the amended rules would apply to vacancies as and when they arose subsequent to the date of amendment. The inter se claim of the petitioner and the contesting respondents, in the category of Assistant Engineer, to the post of Assistant Executive Engineer, came to be considered by this Court in a number of writ petitions. The orders and judgments passed in the said writ petitions are produced in the writ petition as Exts.P4, P4(a), P4(b) and P4(c). In Ext.P4(c) order of the Division Bench of this Court, a claim for promotion by one of the aspirants to the post of Assistant Executive Engineer was disposed by this Court by holding that, if for want of a qualified hand, the vacancy in the higher post is 3 W.P (C) Nos. 20850, 29942, 32996 & 33568 of 2008 & 26536 of 2009 filled up by a senior or unqualified hand, the claim of the incumbents in the feeder category for promotion, as soon as they become qualified, has to be considered. On the basis of this statement of the law, the Writ Appeal was subsequently disposed along with a batch of other Writ Appeals, where a similar question was raised, by a Division Bench of this Court. It is based on the directions in Ext.P4(c) order of the Division Bench that the respondent University examined the inter se claim of the petitioners and the contesting respondents in these writ petitions, for promotion to the post of Assistant Executive Engineer. By Ext.P5 order dated 23.06.2008, the first respondent in W.P.(C).No.20850 of 2008 was promoted as Assistant Executive Engineer with effect from 01.07.2002 to a vacancy that arose on that date in the post. The petitioner in W.P.(C).No.26536 of 2009 was reverted as Assistant Engineer, after noting that he had since retired from service and he was provisionally promoted as Assistant Executive Engineer with effect from 01.04.2003 against the retirement vacancy of Sri.T.K.Sugathan. The second respondent was promoted as Assistant Executive Engineer with effect from 16.11.2002 in a leave vacancy of Sri.C.V.Vivekanandan that arose on that date. The writ petitioner in W.P.(C).No.29942 of 2008 was reverted as Assistant Engineer with effect from 01.12.2003 and again 4 W.P (C) Nos. 20850, 29942, 32996 & 33568 of 2008 & 26536 of 2009 promoted as Assistant Executive Engineer with effect from 01.02.2008 against the retirement vacancy of Sri.P.M.Vasudevan Namboothiri. The petitioners in W.P.(C).No.33568 of 2008 and W.P. (C).No.32996 of 2008 were not considered for promotion to the post of Assistant Executive Engineer presumably on account of the absence of any vacancy that arose in the establishment to the said post. The petitioner in W.P.(C).No.20850 of 2008 was also not considered for promotion to the post of Assistant Executive Engineer presumably on account of the absence of any vacancy in the said post to which she could be accommodated. 4. In all these writ petitions, the challenge is against the order dated 23.06.2008 passed by the fifth respondent, to the extent it promotes the contesting respondents to the post of Assistant Executive Engineer to vacancies that arose with effect from 01.07.2002 and 16.11.2002 respectively. The main ground of challenge by the petitioners to the promotions granted to the first and second respondents in W.P.(C).No.20850 of 2008 is that, the said persons were appointed as Assistant Engineers on provisional basis against vacancies that were ear-marked for filling up by direct recruits. It is stated that at the time of their promotion as Assistant Engineers on 01.07.1997, the promotion was to vacancies that stood 5 W.P (C) Nos. 20850, 29942, 32996 & 33568 of 2008 & 26536 of 2009 ear-marked for direct recruitment and in that sense, the appointments were made provisional, subject to review as and when there was a claim made by direct recruitees for appointment to the said post against the said vacancy. The petitioners in the various writ petitions did not challenge the appointment of the said respondents as Assistant Engineer for a considerable period after their promotion as such to the post of Assistant Engineer. It is their stand that the necessity to challenge the said promotion arose only in a situation where they found that, with effect from 29.01.2003, the post of Assistant Executive Engineer could be filled up by Degree and Diploma holders in the ratio of 3:2 and they had, either on account of the fact that they were Diploma holders, or on account of the fact that they had obtained their Degree subsequent to respondents 1 and 2, become eligible for promotion to the post of Assistant Executive Engineer. It is their specific case that, inasmuch as they were admittedly seniors to the first and second respondents in the post of Assistant Engineer, they ought to have been considered prior to the said respondents when the respondent University was filling up the vacancies in the post of Assistant Executive Engineer. 5. Per contra, it is the contention of respondents 1 and 2 in W.P.(C).No.20850 of 2008 that they were the only candidates in the 6 W.P (C) Nos. 20850, 29942, 32996 & 33568 of 2008 & 26536 of 2009 post of Assistant Engineer who were qualified for promotion to the post of Assistant Executive Engineer, in the vacancies that arose with effect from 01.07.2002 and 16.11.2002 respectively when the erstwhile recruitment rule (Ext.P1) was in operation. It is pointed out that the amendment to the recruitment rules, whereby the Diploma holders could also be considered to the post of Assistant Executive Engineer, took effect only from 29.01.2003 and, inasmuch as the vacancies in question were prior to that, and they were the only persons who had Degree qualification among those in the post of Assistant Engineer on the relevant dates, they alone could be promoted to the post of Assistant Executive Engineer in the vacancies that arose on those days. In response to the challenge with regard to their eligibility to function in the post of Assistant Engineer, it is pointed out that they were promoted as Assistant Engineer on 01.07.1997 and, although their initial appointment was made provisional subject to a review as and when there was a claim of direct recruitees in subsequent recruitment drives, there was in fact no direct recruitment in the respondent University after 1997 and the only direct recruitment that took place was a special recruitment for the purpose of identifying SC/ST candidates. It is also pointed out that, while serving as Assistant Engineer under the respondent 7 W.P (C) Nos. 20850, 29942, 32996 & 33568 of 2008 & 26536 of 2009 University, they had been granted higher grades and also increments and other emoluments attached to the said post. It is therefore pointed out that their continuance in the post of Assistant Engineer was on regular basis and they became eligible to be considered for promotion to the post of Assistant Executive Engineer, as per Ext.P1 recruitment rule that was in force, while considering candidates for promotion in the vacancies to the post of Assistant Executive Engineer with effect from 01.07.2002 and 16.11.2002 respectively. 6. I heard the learned Senior Counsel Smt.Sumathi Dandapani appearing for the petitioner in W.P.(C).No.20850 of 2008, Sri.B.Mohanlal, the learned counsel appearing for the petitioner in W.P.(C).No.26536 of 2009, Sri.Unnikrishna Kaimal, the learned counsel appearing for the petitioner in W.P.(C).No.29942 of 2008, Smt.Sreedevi Kylasanath, the learned counsel appearing for the petitioner in W.P.(C).No.32996 of 2008 and Sri.R.Gopakumar, the learned counsel appearing for the petitioner in W.P.(C).No.33568 of 2008. I have also heard the learned Standing Counsel for the respondent University, Sri.Prasanth.S for the first respondent in W.P.(C).No.20850 of 2008 and Sri.S.P.Aravindaksha Pillai, the learned counsel for the second respondent in W.P.(C).No.20850 of 2008. 8 W.P (C) Nos. 20850, 29942, 32996 & 33568 of 2008 & 26536 of 2009 7. On a consideration of the facts and circumstances of the case as also the the submissions made across the bar, I find that the petitioners and the contesting respondents in these writ petitions were all appointed as First Grade Overseer under the respondent University. It is not in dispute that they were all subsequently promoted as Assistant Engineer under the respondent University on various dates. It is also not in dispute that the respondents 1 and 2 in W.P.(C).No.20850 of 2008 were juniors to the petitioners in the writ petition in the post of Assistant Engineer. The difference in the educational qualification as far as these persons are concerned became relevant when the question of promotion to the post of Assistant Executive Engineer arose in the respondent University. As per Ext.P1 recruitment rule that was in force upto 29.01.2003, the post of Assistant Executive Engineer could be filled up by promotion only from among degree holders with five years experience in the post of Assistant Engineer. Admittedly, only the first and second respondents had the Degree qualification at the time of considering the candidature of Assistant Engineers to vacancies which arose to the post of Assistant Executive Engineer on 01.07.2002 and 16.11.2002 respectively. The petitioner in W.P.(C).No.20850 of 2008 and the petitioner in W.P.(C).No.33568 of 2008, acquired Degree 9 W.P (C) Nos. 20850, 29942, 32996 & 33568 of 2008 & 26536 of 2009 qualification on 06.01.2003 and 17.06.2003 respectively. The petitioners in the other writ petitions did not acquire any Degree qualification at all and they were staking the claim for promotion to the post of Assistant Executive Engineer only on the basis of the amendment that came into force with effect from 29.01.2003. Inasmuch as only the first and second respondents in W.P.(C). No.20850 of 2008 were qualified, as per the recruitment rules in force, for promotion to the post of Assistant Executive Engineer in the vacancies that arose on 01.07.2002 and 16.11.2002, I find that their promotion cannot be impugned or called in question by the others who, on the date of arising of the said vacancies, were admittedly not qualified as per the recruitment rules in force. 8. I must next consider the contention of the learned senior Counsel appearing for the petitioner in W.P.(C).No.20850 of 2008, which contention is also adopted by the counsel for the other writ petitioners, that the first and second respondents in W.P.(C).No.20850 of 2008 were not qualified to hold the post of Assistant Engineer itself since they had been promoted as Assistant Engineer with effect from 01.07.1997 on provisional basis, and the promotion was subject to a review as and when there was a claim raised by persons who could opt for direct recruitment to the post of Assistant Engineer. I find, in 10 W.P (C) Nos. 20850, 29942, 32996 & 33568 of 2008 & 26536 of 2009 this connection, that there was no challenge to the promotion of the said respondents as Assistant Engineer from the date of their promotion from 01.07.1997 till 2003 when, through O.P.No.10413 of 2003, the appointment of the second respondent as Assistant Engineer was called in question by the petitioner in W.P.(C).No.32996 of 2008. On that occasion, this Court while considering the challenge, observed that the promotion of the second respondent as Assistant Engineer had never been challenged by any other eligible candidate either in 1997 or shortly thereafter. It was found that no direct recruitee who aspired for appointment had also challenged his promotion. Under those circumstances, it was found that the challenge raised by the petitioner in that writ petition, with regard to the promotion given to the second respondent as Assistant Engineer in the year 1997, could not be called in question at a belated stage. It is relevant to note that there was no challenge, other than the one referred above, to the appointment of respondents 1 and 2 to the post of Assistant Engineer till they were promoted as Assistant Executive Engineer to vacancies that arose with effect from 01.07.2002 and 16.11.2002. In that view of the matter, I find that it is futile for the writ petitioners herein to now challenge the appointment of the respondents 1 and 2 to the post of Assistant Engineer at this belated 11 W.P (C) Nos. 20850, 29942, 32996 & 33568 of 2008 & 26536 of 2009 stage. One has to proceed on the assumption that the appointment of respondents 1 and 2 as Assistant Engineers was legal and valid, and that they were entitled to all the benefits accruing in the said post. If that be so, then it cannot be disputed that, as on the date of arising of vacancies in the post of Assistant Executive Engineer, namely, 01.07.2002 and 16.11.2002 respectively, only the first and second respondents stood qualified as per the recruitment rules in force for promotion to the said post. The writ petitioners may have been seniors in the category of Assistant Engineer, but they did not have the requisite educational qualification for seeking promotion to the post of Assistant Executive Engineer in accordance with the recruitment rules in force. Under such circumstances, I find that the prayers in these writ petitions cannot be granted to the petitioners. 9. Before parting, I must also deal with the judgments relied upon by the learned senior counsel for the petitioner in W.P.(C). No.20850 of 2008. The learned Senior Counsel has contended, placing reliance on decision in **Sanjay K.Sinha -II & Ors v. State of Bihar and Ors (2004) 10 SCC 734)** (paragraphs 2, 4 & 6) and **K.Madalaimuthu & Anr v. State of T.N & Ors (2006) 6 SCC 558)** , that inasmuch as the appointment of the first and second respondents as Assistant Engineers was contrary to the rules, the said 12 W.P (C) Nos. 20850, 29942, 32996 & 33568 of 2008 & 26536 of 2009 appointment of the respondents could not work to the prejudice of the petitioner, who was admittedly senior to them in the cadre of Assistant Engineer. As already noted above, this Court had repelled an earlier challenge to the promotion given to the second respondent as Assistant Engineer on the ground that the challenge itself was belated. In this judgment also, I have found that the challenge against the promotion given to the said respondent, as well as the first respondent, as Assistant Engineer is severely belated. On that count, therefore, the decision relied upon by the learned Senior Counsel may not come to her aid in contending that the appointment of respondents 1 and 2 was illegal or irregular in any manner. It is also significant to note that the fact that there was no direct recruitment in the respondent University to the post of Assistant Engineer subsequent to 1997 would lend weight to the contention of respondents 1 and 2 that their promotion to the post of Assistant Engineer cannot be called in question at this belated stage, especially on the ground that there was violation of the quota rules in respect of the said appointment. The decision of this Court in **Divakaran v. State of Kerala (1990 (2) KLT 949)** would come to the aid of the respondents in holding that their promotion to the post of Assistant Engineer cannot be assailed. As regards the further contention of the 13 W.P (C) Nos. 20850, 29942, 32996 & 33568 of 2008 & 26536 of 2009 learned senior counsel in respect of the first respondent not having possessed the Degree qualification prior to 29.01.2003 which is the date on which the recruitment rules were amended, I find from Ext.R1 (j) certificate issued to the first respondent by the University of Calicut that the first respondent had obtained the Degree qualification with effect from 29.06.2002 which is before 29.01.2003 on which date the recruitment rules were amended. Thus the first respondent stood qualified for promotion to the vacancy that arose on 01.07.2002, to which he was subsequently accommodated. In the result, these writ petitions in their challenge against the order dated 23.06.2008 passed by the respondent University stand dismissed. While dismissing these writ petitions, I also record the submission of the learned Standing Counsel for the respondent University that the next vacancy to the post of Assistant Executive Engineer in the respondent University would arise consequent to the retirement of Sri.C.V.Vivekanandan, and to that vacancy the petitioner in W.P.(C).No.20850 of 2008 will be accommodated. ## **A.K. JAYASANKARAN NAMBIAR JUDGE** ## **sks/18.6.2016**