Santhosh Kumar S and Rajesh S v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** ## **WEDNESDAY, THE 1ST DAY OF FEBRUARY 2012/12TH MAGHA 1933** ## **WP(C).No. 30602 of 2011 (A)** **---------------------------------------** **PETITIONER(S) :** **----------------------** **1. SANTHOSH KUMAR S , ASSISTANT ENGINEER, (LEAK DETECTION & SURVEILLANCE SQUAD), P.H.CIRCLE, KERALA WATER AUTHORITY, THIRUVANANTHAPURAM.** ## **2. RAJESH S.,** **ASSISTANT ENGINEER, WASCON, KERALA WATER AUTHORITY, JALABHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM - 695 033.** **BY ADVS. SRI.ELVIN PETER P.J. SRI.T.G.SUNIL (PRANAVAM) SRI.K.R.GANESH** **RESPONDENT(S) : ------------------------** **1. STATE OF KERALA - REPRESENTED BY THE SECRETARY TO GOVERNMENT, WATER RESOURCES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM** - **695 001.** **2. THE KERALA WATER AUTHORITY, REPRESENTED BY ITS MANAGING DIRECTOR, JALABHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM - 695 033.** **3. THE CHIEF ENGINEER (HRD & GENERAL), KERALA WATER AUTHORITY, JALABHAVAN, WATER WORKS CAPUS, THIRUVANANTHAPURAM- 695 033.** **4. BHASKARAN P., ASSISTANT ENGINEER, W.W.SECTION NO.2, KERALA WATER AUTHORITY, KOCHI-16.** **2/-** **-2-** **WP(C).No. 30602 of 2011** **5. SMT.USHA P.R., ASSISTANT ENGINEER, WATER SUPPLY SECTION, KERALA WATER AUTHORITY, CHERUVATHUR, KASARAGOD- 671 313.** **6. SUNDARAN THACHANNAN, ASSISTANT ENGINEER, PROJECT DIVISION, KERALA WATER AUTHORITY, MALAPPURAM- 676 505.** **7. THANKARAJ K.S., ASSISTANT ENGINEER, PROJECT DIVISION, MALAPARAMBA, KERALA WATER AUTHORITY, KOZHIKODE- 673 009.** **8. THE DEPARTMENTAL PROMOTION COMMITTEE FOR PREPARING THE SELECT LIST OF ASSISTANT ENGINEERS FOR PROMOTION TO THE CATEGORY OF ASSISTANT EXECUTIVE ENGINEERS-REPRESENTED BY ITS CONVENER, KERALA WATER AUTHORITY, JALABHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM - 695 033.** ## *** ADDL R9 IMPLEADED.** ## **9. RAVEENDRAN T.,** **HEAD DRAFTSMAN (ASST. ENGINEER), PROJECT DIVISION, KERALA WATER AUTHORITY, KOZHIKODE- 673 009.** **10.MUHAMMED ASHRAF P.A., ASST. ENGINEER, PROJECT DIVISION, KERALA WATER AUTHORITY, PERUMBAVOOR- 683 542.** ## **IMPLEADED AS PER ORDER DAED 16.12.2011 IN I.A. NO. 20270/2011.** **R1 BY GOV. PLEADER ADV. SRI. SHAIJ RAJ T.K. R2,R3 & R8 BY SRI.M. DINESH, S.C., KERALA WATER AUTHORITY. R4 BY ADVS. SRI. S.P.ARAVINDAKSHAN PILLAY** **SMT.N.SANTHA SRI.S.A.ANAND SRI.K.A.BALAN SRI.PETER JOSE CHRISTO** **R5-7 BY ADVS. SRI.S.P. ARAVINDAKSHAN PILLAY** **SMT.N.SANTHA SRI.S.A.ANAND SRI.K.A.BALAN SRI.PETER JOSE CHRISTO R9 & 10 BY ADV. SRI. BLESSON ANTONY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** **WP(C).No. 30602 of 2011** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS :** - **EXT.P1 : COPY OF THE APPOINTMENT ORDER OF THE 1ST PETITIONER DATED 11-12-2002.** - **EXT.P2 : COPY OF THE ORDER DATED 16-10-2006 DECLARING THE PROBATION OF THE 1ST PETITIONER.** - **EXT.P3 : COPY OF THE APPOINTMENT ORDER OF THE 2ND PETITIONER DATED 5-10-2002.** - **EXT.P4 : COPY OF THE ORDER DATED 4-2-05 DECLARING THE PROBATION OF THE 2ND PETITIONER.** - **EXT.P5 : COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DATED 16-2-2009.** - **EXT.P5(A) : COPY OF THE RELEVANT EXTRACT OF THE SENIORITY LIST ATTACHED TO EXT.P5.** - **EXT.P6 : COPY OF THE KERALA PUBLIC HEALTH ENGINEERING SERVICE SPECIAL RULES.** - **EXT.P7 : COPY OF G.O. DATED 3-10-94.** - **EXT.P8 : COPY OF THE KERALA IRRIGATION ENGINEERING SERVICE SPECIAL RULES.** - **EXT.P9 : COPY OF THE ORDER DATED 11-2-2011 ISSUED BY THE KERALA STATE ELECTRICITY BOARD.** - **EXT.P10 : COPY OF THE COMMUNICATION DATED 7-11-2003 ISSUED BY THE 2ND RESPONDENT ENCLOSING A COPY OF THE RESOLUTION OF THE KERALA WATER AUTHORITY.** - **EXT.P11 : COPY OF THE KERALA WATER AUTHORITY DRAFT SPECIAL RULES, 2011.** - **EXT.P12 : COPY OF THE SELECT LIST OF ASST.ENGINEERS TO BE PROMOTED AS ASSISTANT EXECUTIVE ENGINEERS PREPARED BY THE KERALA WATER AUTHORITY DATED 4-7-2011.** - **EXT.P13 : COPY OF THE SELECT LIST OF ASST.ENGINEERS TO BE PROMOTED AS ASSISTANT EXECUTIVE ENGINEERS ISSUED BY THE 1ST RESPONDENT DATED 31-10-2011.** ## **RESPONDENTS' EXHIBITS :** - **EXT.R4(A) : COPY OF THE NOTIFICATION NO.KWA/JB/E2/10806/2010 DATED 28.11.2011 PUBLISHED BY THE DPC OF THE KERALA WATER AUTHORIY.** - **EXT.R4(B) : COPY OF THE GOVERNMENT LETTER NO.30735/B1/03/WRD DATD 31.05.2004.** ## **/ TRUE COPY /** ## **NS** ## **P.A. TO JUDGE** ## **K.SURENDRA MOHAN, J** = = = = = = = = = = = = = W.P.(C).No.30602 of 2011. = = = = = = = = = = = = = Dated this the 1[st] February, 2012. ## **J U D G M E N T** The petitioners are B.Tech degree holders in Civil Engineering. They are working as Assistant Engineers in the Kerala Water Authority. Respondents 4 to 7 are Diploma holders in Civil Engineering. They are also working in the Water Authority as Assistant Engineers. According to the petitioners, respondents 4 to 7 are far juniors to the petitioners. Promotions of degree holders and diploma holders are effected in the ratio of 3:1 to the next higher post. According to the petitioners, as a result of the application of the above ratio for promotion, a serious anomaly results for the reason that, persons like respondents 4 to 7 who are far juniors to the petitioners would steal a march over the petitioners who possess better qualifications than them. Therefore, according to them, **W.P.(C).No.30602/2011.** 2 operation of the ratio of promotion creates a situation where junior diploma holders become seniors to degree holders who are seniors to them, upon promotion. According to the petitioners, the Government has decided to rectify the above anomaly and has therefore proposed necessary amendments to the Special Rules. The proposals for amendments are pending consideration of the Government. Ext.P11 is the said proposal. The petitioners have therefore filed this writ petition seeking the issue of a writ of certiorari or any other appropriate writ to quash Exts.P12 and P13, the select lists of diploma holders and degree holders prepared by the Departmental Promotion Committee. Other consequential reliefs are also sought for. 2. This writ petition was admitted on 17.11.2011 and an interim order of stay of promotion of respondents 4 to 7 as Assistant Executive Engineers was also granted. 3. Sri.S.P.Aravindakshan Pillay who appears for respondents 4 to 7 seriously opposes the continuance of the ## **W.P.(C).No.30602/2011.** **==> picture [7 x 10] intentionally omitted <==** interim order of stay. According to the counsel, the Supreme Court has already held that the anomaly pointed out by the petitioners notwithstanding, the Rule regarding quota has to be followed in the matter of promotions. Therefore, it is contended that the anomaly can be rectified only by a proper order or direction issued by the Government and until the anomalies are rectified, promotions to the vacancies that arise would have to be made following the quota rule itself. The counsel also relies on Ext.R4(b) proceedings issued by the Government by which a request made by the Managing Director of the Kerala Water Authority to extend the benefit of the Govt.Order dated 3.10.1994, by which it had been ordered that an Assistant Engineer who possesses only a Diploma would not be eligible for promotion above an Assistant Engineer who possesses a degree, has been turned down. In the above circumstances, it is contended that the petitioners are not entitled to any of the reliefs claimed in 4 ## **W.P.(C).No.30602/2011.** this writ petition. 4. Counsel for the petitioners, on the other hand, submits that a serious anomaly has been pointed out in this writ petition, which requires rectification. In a situation where amendments are proposed to be introduced to rectify the anomalies, it is only appropriate that further promotions perpetrating the anomalous situation are kept in abeyance. The counsel also relies on the decision of the Apex Court reported in **Dr.K.Ramulu vs. Dr.S.Suryaprakash Rao** ((1997) 3 SCC 59) to support his contentions. 5. In view of Ext.R4(b) it is not open to the petitioners to contend that operation of the quota rule that is adopted for promotion from among Assistant Engineers possessing degree and diplomas to the next higher post results in an anomalous situation as pointed out. Though the above aspect had been brought to the notice of the Government and the Government Order that seeks to rectify the anomaly was sought to be made applicable to the Kerala 5 ## **W.P.(C).No.30602/2011.** Water Authority, the said request has been turned down. The request has been turned down in view of the authoritative pronouncement of the Hon'ble Supreme Court that, when a quota rule is fixed for promotion, the same would have to be adhered to in the matter of promotions. This is in view of the fact that separate streams of promotions have been provided for both graduates and diploma holders, which stream such employees would have to take for the purpose of their career advancement. While effecting promotions from one stream the seniority of the persons in the other stream need not be taken into consideration. 6. However, the counsel for the petitioners contends that since amendments are under the contemplation of the Government, the present promotions should be kept in abeyance. It is trite that promotions to vacancies would have to be made as per the rules existing at the time when such vacancies arise. Therefore, even if an amendment is 6 ## **W.P.(C).No.30602/2011.** brought to the Special Rules, unless such amendment is given retrospective effect, the petitioners are not entitled to get the benefit of such amendment. The above being the position, I am of the view that the petitioners are not entitled to any of the reliefs claimed in this writ petition. 7. Needless to observe that it would always be open to the Government to rectify the anomalies, if any, as pointed out by the petitioners by effecting appropriate amendments to the Special Rules. With the above observation, this writ petition is dismissed. ## **K.SURENDRA MOHAN, (Judge)** **Kvs/-**