Santosh Kumar S. v. State of Kerala & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE V.CHITAMBARESH THURSDAY, THE 15TH DAY OF MARCH 2012/25TH PHALGUNA 1933 WA.No. 497 of 2012 () IN WPC/30602/2011 ---------------------------------------AGAINST THE JUDGMENT IN WPC.30602/2011 DATED 01-02-2012 APPELLANT(S)/APPELLANT/1ST PETITIONER: ----------------- SANTHOSH KUMAR.S. ASSISTANT ENGINEER (LEAK DETECTION & SUVRVEILLANCE SQUAD) P.H.CIRCLE, KERALA WATER AUTHORITY THIRUVANANTHAPURAM. BY ADVS.SRI.ELVIN PETER P.J. SRI.T.G.SUNIL (PRANAVAM) SRI.K.R.GANESH RESPONDENT(S)/RESPONDENTS: -------------------------- ## 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT WATER RESOURCES DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE KERALA WATER AUTHORITY REPRESENTED BY ITS MANAGING DIRECTOR, JALABHAVAN VELLAYAMBALAM, THIRUVANANTHAPURAM - 695 033. 3.THE CHIEF ENGINEER (HRD & GENERAL) KERALA WATER AUTHORITY, JALA BHAVAN WATER WORKS CAPUS, THIRUVANANTHAPURAM - 695 033. ## 4. BHASKARAN P. ASSISTANT ENGINEER, W.W.SECTION NO.2 KERALA WATER AUTHORITY, KOCHI - 16. W.A.No.497 of 2012 : 2 : ## 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. ## 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, JALA BHAVAN, VELLAYAMBALAM THIRUVANANTHAPURAM 695033 ## 9. RAVEENDRAN T., HEAD DRAFTSMAN (ASST.ENGINEER), PROJECT DIVISION KERALA WATER AUTHORITY, KOZHIKODE - 673009. 10. MUHAMMED ASHRAF P.A. ASST.ENGINEER, PROJECT DIVISION KERALA WATER AUTHORITY, PERUMBAVOOR - 683 542. R2 & R3 BY SRI.JOSEPH JOHN, SC, KERALA WATER AUTHORITY R1 BY GOVERNMENT PLEADER SMT.GIRIJA GOPAL. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAI. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 15-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.A.NO.497 OF 2012 ANNEXURE A1 TRUE COPY OF RELEVANT EXTRACT OF G.O.(P) NO.403 DATED 14.10.1966 ANNEXURE A2 TRUE COPY OF AFFIDAVIT FILED ON BEHALF OF THE FIRST RESPONDENT GOVERNMENT IN W.P.(C) NO. 32644 OF 2011 OF THIS HON'BLE COURT. //TRUE COPY// P.S. TO JUDGE. ## **MANJULA CHELLUR, Ag.C.J. & V.CHITAMBARESH, J.** ------------------------------- ## **W.A.No.497 of 2012** ------------------------------- ## **Dated this the 15[th] day of March, 2012** ## **J U D G M E N T** ## Manjula Chellur, Ag.C.J. Heard the learned counsel for the appellant. We have considered the decision of the Apex Court reported in **Dr.K.Ramulu and Another v. Dr.S.Suryaprakash Rao and Others** (1997 (3) SCC 59) referred to by the learned counsel for the appellant. 2. It is not in dispute that the appellant-first petitioner, B.Tech Degree holder in Civil Engineering, was working as Assistant Engineer in the Kerala Water Authority and so also respondents 4 to 7, Diploma holders in Civil Engineering, were also working as Assistant Engineers in the Kerala Water Authority. According to the appellant, when a selection list for promotion to the post of Assistant Executive Engineer came to be made as per Exts.P12 and P13, appellant was placed much below the party respondents, and he along with another approached the learned single Judge placing reliance on Ext.P11 Draft Special Rules. The fact remains, as on W.A.No.497 of 2012 2 the date of publication of selection list, the promotions in the Kerala Water Authority had to be done in accordance with the ratio of 3:1 to the next higher post, i.e., Assistant Executive Engineer. If this rule is adopted, automatically, the appellant will not have a chance and the entire scenario would be different. However, the learned single Judge after referring to Exts.P11, P12, P13 and also the judgment of the Apex Court in Ramulu's case, referred above, held that as long as Draft Special Rules have not become regular rules by notification, the appellant cannot place reliance on the said rules and seek benefit on the ground of parity with all the other departments of Government. The appellant aggrieved by the dismissal of the writ petition has approached in this appeal. 3. According to the learned counsel for the appellant, if the philosophy underlying the decision of Ramulu's case is applied, definitely there has to be a direction not to implement selection list at Exts.P12 and P13 till proposal of Draft Special Rules is made as Rules or approved. On a perusal of the W.A.No.497 of 2012 3 decision in Ramulu's case, it is seen that the Government took a decision not to proceed with the promotions as per the existing rules, in view of proposal for amendment of the existing rules. In that situation, the parties aggrieved, i.e., the officers who could have got the promotion as per the existing rules approached the Court contending that they have to be promoted in accordance with the existing rules. In that context, the Apex Court, after referring to several judgments including **Y.V.Rangaiah v. J.Sreenivasa Rao** (1983 (3) SCC 284) proceeded to hold at paragraph 12 as under:- 12. The same ratio was reiterated in Union of India v. K.V.Vijeesh (SCC paras 5 and 7). Thus, it could be seen that for reasons germane to the decision, the Government is entitled to take a decision not to fill up the existing vacancies as on the relevant date. Shri.H.S.Gururaja Rao, contends that this Court in Y.V.Rangaiah v. J.Sreenivasa Rao had held that the existing vacancies were required to be filled up as per the law prior to the date of the amended Rules. The mere fact that Rules came to be amended subsequently does not empower the Government not to consider the persons who were eligible prior to the date of amendment. It is W.A.No.497 of 2012 4 seen that the case related to the amendment of the Rules. Prior to the amendment of the Rules two sources were available for appointment as Sub Registrar, namely, UDCs and LDCs. Subsequently, Rules came to be amended taking away the right of the LDCs for appointment as Sub Registrar. When the vacancies were not being filled up in accordance with the existing Rules, this Court had pointed out that prior to the amendment of the Rules, the vacancies were existing and that the eligible candidates were required to be considered in accordance with the prevailing Rules. Therefore, the mere fact of subsequent amendment does not take away the right to be considered in accordance with the the existing Rules. As a proposition of law, there is no dispute and cannot be disputed. But the question is whether the ratio in Rangaiah case would apply to the facts of this case. The Government therein merely amended the Rules, applied the amended Rules without taking any conscious decision not to fill up the existing vacancies pending amendment of the Rules on the date the new Rules came into force. It is true, as contended by Mr H.S.Gururaja Rao, that this Court has followed the ratio therein in many a decision and those cited by him are P.Ganeshwar Rao v. State of A.P., P.Mahendran v. State of Karnataka, A.A.Calton v. Director of Education, N.T.Devin Katti v. Karnataka Public Service Commission, Ramesh Kumar Choudha v. State of M.P. In none of these decisions, a situation which has arisen in the present case had come up for consideration. W.A.No.497 of 2012 5 Even Rule 3 of the General Rules is not of any help to the respondent for the reason that Rule 3 contemplates making of an appointment in accordance with the existing Rules. The factual situation in the present case is entirely different. It is not a situation demanding the concerned authorities to postpone the implementation of Exts.P12 and P13 till the Draft Special Rules are approved. In that view of the matter, we are afraid, the principle adopted in the above judgment cannot be applied to the facts of the present case. When the authorities concerned have proceeded to consider the promotion of the party respondents and issued selection list as per Exts.P12 and P13, as per the existing quota, it does not lie in the mouth of the appellant to demand that selection list cannot be implemented till the Draft Special Rules are approved or the selection list has to be in accordance with the Draft Special Rules, once the said Rules are approved. Viewed from any angle, we are afraid, no good ground is made out to interfere with the judgment of the learned single Judge. W.A.No.497 of 2012 6 ## Accordingly we are of the opinion that the writ appeal fails and stands dismissed. **MANJULA CHELLUR, Acting Chief Justice.** **V.CHITAMBARESH, Judge.** nj. **MANJULA CHELLUR, Ag.C.J. & V.CHITAMBARESH, J.** -------------------------------------- W.A.No.497 of 2012 ## **JUDGMENT** Dated:- 15[th] March, 2012 --------------------------------------