WA Nos. 2206 of 2023 & 2213 of 2023 and WA No. 66 of 2024 (In the High Court of Kerala at Ernakulam)

**'CR'** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **&** **THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR** **MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945** **WA NO.2206 OF 2023** **JUDGMENT DATED 22.11.2023 IN WP(C) NO.27817 OF 2023 OF HIGH COURT OF KERALA** **-------------** ## **- APPELLANTS/PETITIONERS :** - **1 SAJITHABAI, AGED 49 YEARS ASSISTANT ENGINEER, KERALA WATER AUTHORITY, PH' SECTION, VATANAPPALLY, THRISSUR DISTRICT, PIN – 680 614** - **2 ABDUL SATHAR.U., AGED 46 YEARS ASSISTANT ENGINEER, KERALA WATER AUTHORITY, PH HEAD WORKS SECTION, ALUVA, ERNAKULAM DISTRICT, PIN – 683 101** - **3 JONA.T.J., AGED 39 YEARS ASSISTANT ENGINEER, KERALA WATER AUTHORITY, WATER WORKS SECTION NO.2, THRISSUR, PIN – 680 020** - **4 SHAMNADH.A., AGED 50 YEARS ASSISTANT ENGINEER, KERALA WATER AUTHORITY, HEADQUARTERS SECTION, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN – 695 033** **BY ADV P.C.SASIDHARAN** ## **- RESPONDENTS/RESPONDENTS :** - **1 THE KERALA WATER AUTHORITY REPRESENTED BY ITS MANAGING DIRECTOR, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN – 695 033** - **2 THE MANAGING DIRECTOR THE KERALA WATER AUTHORITY, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN – 695 033** - **3 ANOOP.V.S. ASSISTANT ENGINEER, KERALA WATER AUTHORITY, WATER WORKS SECTION, VANDITHADAM, THIRUVALLAM,** WA NOS.2206 & 2213 OF 2023 and WA No.66 of 2024 -: 2 :- **THIRUVANANTHAPURAM, RESIDING AT KADUKKAMOODE HOUSE, KANIYARAMCODE, PANACODE.P.O. NEDUMANGADU, THIRUVANANTHAPURAM, PIN – 695 542** **4 BINDU.S. ASSISTANT ENGINEER, KERALA WATER AUTHORITY, PIV-4 HEAD OFFICE, JALA BHAVAN, THIRUVANANTHAPURAM-695 033, RESIDING AT FLAT 5B, HEERA GRACE, KOWADIAR, THIRUVANANTHAPURAM, PIN – 695 003** **BY ADVS. P.M.JOHNY ELVIN PETER P.J. K.R.GANESH(K/000551/1991) GOURI BALAGOPAL(K/002008/2019) SREELEKSHMI A.S.(K/1313/2021)** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09.02.2024, ALONG WITH WA.66/2024 & 2213/2023, THE COURT ON 18.03.2024 DELIVERED THE FOLLOWING:** WA NOS.2206 & 2213 OF 2023 and WA No.66 of 2024 -: 3 :- ## **'CR'** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **&** **THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945** **WA NO.2213 OF 2023** **JUDGMENT DATED 22.11.2023 IN WP(C) NO.5277 OF 2023 OF HIGH COURT OF KERALA** **-------------** **- APPELLANTS/RESPONDENT Nos.5, 7 TO 9 :** **1 SAJITHABAI, AGED 50 YEARS ASSISTANT ENGINEER, KERALA WATER AUTHORITY, PH SECTION, VATANAPPALLY, THRISSUR DISTRICT, PIN – 680 614** **2 ABDUL SATHAR.U., AGED 46 YEARS ASSISTANT ENGINEER, KERALA WATER AUTHORITY, PH HEAD WORKS SECTION, ALUVA, ERNAKULAM DISTRICT, PIN – 683 101** **3 JONA.T.J., AGED 41 YEARS ASSISTANT ENGINEER, KERALA WATER AUTHORITY, WATER WORKS SECTION NO.2 THRISSUR, PIN – 680 020** **4 SHAMNADH.A., AGED 50 YEARS ASSISTANT ENGINEER, KERALA WATER AUTHORITY, HEADQUARTERS SECTION, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN – 695 033** **BY ADVS. P.C.SASIDHARAN GEORGIE JOHNY** **- RESPONDENTS/PETITIONERS & RESPONDENT Nos.1 TO 4, 6, 10 & 11 :** **1 ANOOP.V.S, AGED 34 YEARS S/O.N.VELAYUDHAN, ASSISTANT ENGINEER, (PEN - G44684)** WA NOS.2206 & 2213 OF 2023 and WA No.66 of 2024 -: 4 :- **KERALA WATER AUTHORITY, WATER WORKS SECTION, VANDITHADAM, THIRUVALLAM, THIRUVANANTHAPURAM, RESIDING AT KADUKKAMOODE HOUSE, KANIYARAMCODE, PANACODE.P.O. NEDUMANGADU, THIRUVANANTHAPURAM, PIN – 695 542** **2 BINDU.S, AGED 52 YEARS W/O.SREELAL SREEDHARAN, ASSISTANT ENGINEER, (PEN G10662) KERALA WATER AUTHORITY, PIV-4 HEAD OFFICE, JALA BHAVAN, THIRUVANANTHAPURAM-695 033, RESIDING AT FLAT 5B, HEERA GRACE, KOWADIAR, THIRUVANANTHAPURAM, PIN – 695 003** - **3 THE KERALA WATER AUTHORITY REPRESENTED BY ITS MANAGING DIRECTOR, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN – 695 033** - **4 THE MANAGING DIRECTOR THE KERALA WATER AUTHORITY, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN – 695 033** - **5 THE CHIEF ENGINEER (HRD & GL), THE KERALA WATER AUTHORITY, JALA BHAVAN,VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN – 695 033** - **6 SEEMA C.GOPI ASSISTANT EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, WSP SUB DIVISION, KASARAGODE, PIN – 671 123** - **7 VINOD.K HEAD DRAUGHTSMAN, KERALA WATER AUTHORITY, PROJECT DIVISION, ADOOR, PATHANAMTHITTA DISTRICT, PIN – 691 523** - **8 AJESH.R.G., ASSISTANT ENGINEER, KERALA WATER AUTHORITY, SEWERAGE SECTION NO.II, KURIATHY, THIRUVANANTHAPURAM, PIN – 695 036** - **9 KIRAN.M S/O.MOHANAN.K., ASSISTANT ENGINEER - 7,** WA NOS.2206 & 2213 OF 2023 and WA No.66 of 2024 -: 5 :- **(PEN NO.G43731) PROJECT DIVISION, KERALA WATER AUTHORITY, THRIUVANANTHAPURAM -695 504, RESIDING AT 'KIZHAKKE PANEEL, ELLUVILA, KARIYAVATOM-P.O, THIRUVANANTHAPURAM, PIN – 695 581 BY ADVS. ELVIN PETER P.J. K.R.GANESH(K/000551/1991) GOURI BALAGOPAL(K/002008/2019) SREELEKSHMI A.S.(K/1313/2021)** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09.02.2024, ALONG WITH WA.2206/2023 AND 66/2024, THE COURT ON 18.03.2024 DELIVERED THE FOLLOWING:** WA NOS.2206 & 2213 OF 2023 and WA No.66 of 2024 -: 6 :- **'CR'** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **&** **THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR** **MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945** **WA NO.66 OF 2024** **JUDGMENT DATED 22.11.2023 IN WP(C) NO.5277 OF 2023 OF HIGH COURT OF KERALA** **------------------** ## **- APPELLANTS/RESPONDENTS 4 AND 10 IN WPC :** **1 SEEMA C.GOPI, AGED 45 YEARS W/O.JAYANKUMAR S.K., ASSISTANT EXECUTIVE ENGINEER, KERALA WATER AUTHORITY WSP SUB DIVISION, KASARGOD - 671 123 (NOW WORKING AT THIRUVANANTHAPURAM) RESIDING AT VADAKKUMKARA PUTHENVEEDU THEMBA MUTTOM, BALARAMAPURAM PO THIRUVANANTHAPURAM, PIN – 695 501** **2 AJESH R.G, AGED 35 YEARS S/O.M.RAVEENDRAN ASSISTANT ENGINEER, SEWERAGE SECTION NO.II KURIATHY, THIRUVANANTHAPURAM - 695 036 RESIDING AT R.G.VILLA, VRA-37, DEVASWOM LANE VAYALARIKOM, KESAVADASAPURAM THIRUVANANTHAPURAM, PIN – 695 004** **BY ADVS. M.U.VIJAYALAKSHMI K.JAJU BABU (SR.) BRIJESH MOHAN** **RESPONDENTS/PETITIONERS & RESPONDENTS 1 TO 3, 5 TO 9 AND 11/ - RESPONDENTS IN WPC :** **1 ANOOP.V.S., AGED 34 YEARS S/O.N.VELAYUDHAN, ASSISTANT ENGINEER, (PEN - G44684) KERALA WATER AUTHORITY, WATER WORKS SECTION, VANDITHADAM, THIRUVALLAM, THIRUVANANTHAPURAM,** WA NOS.2206 & 2213 OF 2023 and WA No.66 of 2024 -: 7 :- **RESIDING AT KADUKKAMOODE HOUSE, KANIYARAMCODE, PANACODE.P.O., NEDUMANGADU, THIRUVANANTHAPURAM, PIN – 695 542** - **2 BINDU.S, AGED 52 YEARS W/O. SREELAL SREEDHARAN, ASSISTANT ENGINEER, (PEN G10662) KERALA WATER AUTHORITY, PIV-4, HEAD OFFICE, JALA BHAVAN, THIRUVANANTHAPURAM-695 033, RESIDING AT FLAT 5B, HEERA GRACE, KOWADIAR, THIRUVANANTHAPURAM, PIN – 695 003** - **3 THE KERALA WATER AUTHORITY REPRESENTED BY ITS MANAGING DIRECTOR, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN – 695 033** - **4 THE MANAGING DIRECTOR THE KERALA WATER AUTHORITY, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN – 695 033** - **5 THE CHIEF ENGINEER (HRD & GL), THE KERALA WATER AUTHORITY, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN – 695 033** - **6 SMT. SAJITHABAI, ASSISTANT ENGINEER, KERALA WATER AUTHORITY, PH SECTION, VATANAPPALLY, THRISSUR, PIN – 680 614** - **7 VINOD.K, HEAD DRAUGHTSMAN, KERALA WATER AUTHORITY, PROJECT DIVISION, ADOOR, PATHANAMTHITTA, PIN – 691 523** **8 ABDUL SATHAR.U, ASSISTANT ENGINEER, KERALA WATER AUTHORITY, PH HEAD WORKS SECTION, ALUVA, ERNAKULAM, PIN – 683 101** **9 JONA.T.J ASSISTANT ENGINEER, KERALA WATER AUTHORITY, WATER WORKS SECTION NO.2, THRISSUR, PIN – 680 020 10 SHAMNADH.A. ASSISTANT ENGINEER, KERALA WATER AUTHORITY, HEADQUARTERS SECTION, JALA BHAVAN, VELLAYAMBALAM,** WA NOS.2206 & 2213 OF 2023 and WA No.66 of 2024 -: 8 :- ## **THIRUVANANTHAPURAM, PIN – 695 033** **11 KIRAN.M., AGED 33 YEARS, S/O.MOHANAN.K., ASSISTANT ENGINEER - 7, (PEN NO.G43731) PROJECT DIVISION, KERALA WATER AUTHORITY, THIRUVANANTHAPURAM -695 504, RESIDING AT 'KIZHAKKE PANEEL, ELLUVILA, KARIYAVATOM-P.O, THIRUVANANTHAPURAM, PIN – 695 581** **BY ADVS. ELVIN PETER P.J. K.R.GANESH(K/000551/1991) GOURI BALAGOPAL(K/002008/2019) SREELEKSHMI A.S.(K/1313/2021)** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09.02.2024, ALONG WITH WA.2206/2023 AND 2213/2023, THE COURT ON 18.03.2024 DELIVERED THE FOLLOWING:** WA NOS.2206 & 2213 OF 2023 and WA No.66 of 2024 **'CR'** -: 9 :- ## **ANU SIVARAMAN, J. & C. PRATHEEP KUMAR, J.** **== = = = = = = = = = = = = = = = = = = = W.A. Nos.2206 & 2213 of 2023 & 66 of 2024** **= = = = = = = = = = = = = = = = = = = = = Dated this the 18th day of March, 2024** ## **JUDGMENT** ## **Anu Sivaraman J.** 1. These appeals are preferred against a common judgment dated 22.11.2023 in W.P.(C).No.5277 of 2023 and 27817 of 2023. 2. W.P.(C).No.5277 of 2023 was filed by directly recruited Assistant Engineers of the Kerala Water Authority challenging the assigning of seniority to the party respondents over them in the seniority list of degree holders, while W.P.(C).No.27817 of 2023 was filed by persons appointed in the lower post and who had degree qualifications but were promoted as Assistant Engineers in the Diploma holders quota. The learned single Judge allowed W.P.(C).No.5277 of 2023 and dismissed W.P.(C).No.27817 of 2023. 3. W.A.No.2213 of 2023 is filed by respondent Nos.5 and 7 to 9 in W.P.(C).No.5277 of 2023. Respondents herein are the petitioners WA NOS.2206 & 2213 OF 2023 and WA No.66 of 2024 -: 10 :- and respondent Nos.1 to 4,6,10 and 11 in the said writ petition. W.A.No.66 of 2024 is filed by respondents 4 to 10 in W.P. (C).No.5277 of 2023. Respondents are the petitioners and respondent No.1 to3, 5 to 9 in the said writ petition respectively. W.A.No.2206 of 2023 is filed by the petitioner in W.P. (C).No.27817 of 2023 and respondents herein are the respondents in the said writ petition. 4. For a proper understanding of the issues involved, the provisions of the Rules are extracted below. It is pertinent to note here that the parties have agreed that the post of Junior Engineer was later redesignated as Assistant Engineer and the post of Assistant Engineer as Assistant Executive Engineer by Government Order dated 5.12.1978, which is not reflected by amendments in the Special Rules. 5. The parties and documents are being referred to in this judgment as arrayed in W.P.(C) No.5277/2023, unless otherwise specified. 6. The Special Rules for Kerala Public Health Engineering Subordinate Service was issued on 14.10.1966, and it provides WA NOS.2206 & 2213 OF 2023 and WA No.66 of 2024 -: 11 :- that the service shall consist of about 43 categories of officers. The relevant categories for the purpose of this case are as under: Rule 1 Category I - Junior Engineer/Minor Irrigation Supervisor Rule 1 Category IV - Draftsman / Water Works Inspector/ Drainage Inspector / Overseer Grade I Rule 2 deals with the appointment to the various categories. The relevant portion reads thus: |Category|Method of appointment| |---|---| |(1)|(2)| |Junior Engineer/Minor<br>Irrigation Supervisor|Direct recruitment.<br>and<br>Promotion from category 4.<br>Note:- (i) Direct recruitment<br>and<br>appointment<br>by<br>promotion shall be made in<br>the ratio of 6:4. Diploma<br>holders<br>and<br>Certificate<br>holders shall be promoted in<br>the ratio 3:1.<br>(ii)<br>The above ratio shall be<br>applied to the total cadre<br>strength of Junior Engineers<br>in the Department.| ## 7. The Note (vii) to Rule 2 details the manner of making the appointment. The said Rule reads thus:- “Note: (vii) Subject to the provisions in item (i) in making appointment to the category by direct recruitment, appointment to 54% of the post shall be made by direct recruitment of candidates from the open market and WA NOS.2206 & 2213 OF 2023 and WA No.66 of 2024 -: 12 :- 6% by direct recruitment from among Draftsman/Water Works Inspector/Drainage Inspector/Overseer Grade I or II or Works Superintendents Grades I and II or Clerks in the Public Health Engineering Department of the Government of Kerala. “ 8. The qualification laid down for the 6% quota earmarked for direct recruitment of in-service candidates is also a degree. Rule 6 deals with other qualifications. It says that no person shall be eligible for appointment to the category specified in Column No.1 of the schedule to these Rules by the method mentioned in Column No. - 2 unless he possesses the qualifications prescribed in the corresponding entry in Column No.3. The schedule referred to in Rule 6 reads as under: ## **SCHEDULE** (Referred to in Rule 6) |Category|Method of<br>appointment|Qualification| |---|---|---| |Junior Engineer/<br>Minor Irrigation<br>Supervisor|Direct<br>recruitment|Must possess any of the degrees of Diplomas<br>specified in item (i) on in Section A in item (ii)<br>of the Annexure.| ||Promotion|(a) Must possess any of the diplomas specified<br>in Section B item (ii) of the Annexure and<br>must have rendered service under<br>Government for a minimum period of two<br>years; or<br>(b)Must possess any of the certificates<br>specified in Section A of item (iii) of the<br>Annexure and must have rendered service<br>under Government for a minimum period<br>of five years of which notless thantwo| WA NOS.2206 & 2213 OF 2023 and WA No.66 of 2024 -: 13 :- years should be in the category of Overseer Grade I. Note:- Work Establishment or Municipal Service shall be counted in computing the five years’ service, provide that provisional or emergency service shall not be so counted. Must possess the minimum general educational qualification of S.S.L.C Standard. Note:- (i) Vacancies reserved to be filled by promotion shall be allocated between those possessing the qualifications specified in clauses (a) and (b) in item (1) above in the ratio of 3:2. (ii) A senior diploma holder shall not be superseded by a junior certificate holder for promotion in order to maintain the 3:2 ratio. (iii) A person who obtains any of the diplomas mentioned in Section B in item (ii) of the Annexure to the Rules, after his appointment as Overseer Grade I/Draftsman Grade I shall be eligible for promotion as Junior Engineer against the quota allotted to those possessing the same qualification only after the claims of all Overseers Grade I/Draftsman Grade I who on the date of his obtaining the diploma, possessed the qualifications mentioned in clause (a) of item (i) above have been considered provided however that this shall not be detrimental to his interest if he is likely to get an earlier chance for promotion in the quota allotted for Certificate holders. (iv) Overseers Grade I/Draftsman Grade I, possessing the qualifications of Smt. Maistry’s Course or Civil Maistry’s Course or Section Superintendent’s Course and who have a minimum service of 10 years under Government of which not less than 7 years WA NOS.2206 & 2213 OF 2023 and WA No.66 of 2024 -: 14 :- **==> picture [194 x 89] intentionally omitted <==** should be as Overserr Grade I/Draftsman Grade I shall be considered for promotion as Junior Engineer in the quota allotted for Certificate holders provided they possess the minimum general educational qualification of S.S.L.C Standard. ## 9. The relevant portion in the Annexure to the Rules is as under. ## **ANNEXURE** ## **(i) Degree in Engineering** B.Sc. Degree in Engineering (Civil Mechanical or Chemical) of the Kerala University, B.E. Degree (Civil or Mechanical or Chemical) of the Madras University or any other qualification recognised as equivalent thereto. Diploma in Civil Engineering or Mechanical Engineering of the College of Engineering, Guindy, which was abolished in 1945, will be treated as equivalent to a degree. ## **(ii) Diploma in Engineering** ## SECTION A (a) Associate membership diploma of the Institution of Engineers, India, in Civil or Mechanical or Chemical Engineering or any other Diploma recognised as equivalent thereto. (b) Pass in Sections A & B of the Associate Membership Examination of the Institution of Engineers, India, in Civil or Mechanical or Chemical Engineering. ## SECTION B (a) Upper Subordinate Diploma of the College of Engineering, Guindy. (b) Diploma in Civil or Mechanical Engineering of the Travancore (now Kerala) University, or Diploma recognized by Government as equivalent thereto. (c) Lower Subordinate Diploma of the College of Engineering, Guindy. WA NOS.2206 & 2213 OF 2023 and WA No.66 of 2024 -: 15 :- (d) Licentiate in Civil or Mechanical Engineering from the Technical Institute at Kozhikode, Trichur, Kalamassery or other equal courses. ## **(iii) Certificate in Engineering** ## SECTION A (a) S.M.T. (Sri Mulam Technical Institute) Overseer’s course (2 years course) (b) Draftsman’s Course, College of Engineering, Guindy. - (c) Group Certificates under M.G.T.E. (Madras - Government Technical Examination) or K.G.T.E. “ - 10.The qualification laid down for appointment to the post of Junior Engineer by direct recruitment is Degree or Diploma as specified in Item (i) or in Section A of item (ii) in the Annexure. The qualification laid down for promotion to the post of Junior Engineer is a Diploma in Engineering as included in Section B. - 11.The further higher posts in the State Service are governed by Ext.P5 Special Rules. Rule 4 of the Kerala Public Health Engineering Service Special Rules lays down the qualification and method of appointment to the post of Executive Engineer and Assistant Engineer, which has been re-designated as Assistant Executive Engineer. The said provision reads as under: “4.Promotion as Executive and Assistant Engineers - - (a) A person who obtains the A.M.I.E. (India) Diploma after - appointment as Assistant Engineer shall be eligible for promotion as WA NOS.2206 & 2213 OF 2023 and WA No.66 of 2024 **==> picture [49 x 7] intentionally omitted <==** Executive Engineer only after the claims of all Assistant Engineers who on the date of his obtaining the A.M.I.E. (India) Diploma, possessed the qualification mentioned in item (i) in the Annexure has been considered. (b) Vacancies in the category of Assistant Engineers shall be filled up from among those in categories 1 or 2 in the Kerala Public Health Engineering Subordinate Service in the ratio of 4:1 between - - (1). Persons possessing any of the qualifications mentioned in item (i) or in Section A in item (ii) of the Annexure and - (2) Those possessing any of the qualifications mentioned in Section B in item (ii) of the Annexure or those possessing the S.M.T. Overseers certificate,every 5th vacancy being allotted to the latter and the rest to the former. A person, who while holding (any of the posts in categories 1 and 2 of the Kerala Public Health Engineering Subordinate Service), passes Sections A and B of the A.M.I.E. (India) Examination shall be eligible for promotion as Assistant Engineer against the quota allotted for those possessing the qualification 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.I.M.E. (India) Examination, possessed the qualifications mentioned in item (i) of the Annexure have been considered. Provided that it will be left to the option of such persons to continue among (those) possessing the qualifications mentioned in Section B in item (ii) of the Annexure and claim promotion against the quota allotted to them.” WA NOS.2206 & 2213 OF 2023 and WA No.66 of 2024 -: 17 :- 12.If a Junior Engineer re-designated as Assistant Engineer and a Mechanical Superintendent, who falls under Category 1 and 2 of the Kerala Public Health Engineering Subordinate Service, acquire qualifications of Degree in Engineering while holding the post of Assistant Engineer and Mechanical Superintendent, they shall be eligible for promotion as Assistant Executive Engineer against the quota earmarked for degree holders after the promotion of all Assistant Engineers, on the date of their acquiring the qualification have been promoted. The Rule further says that it would be open to those Assistant Engineers and Mechanical Superintendents to continue among those possessing the diploma qualification and claim promotion against the quota allotted to them. In other words, a person who, while holding the post of Assistant Engineer and Mechanical Engineer, passes Sections A and B of the A.M.I.E. (India) Examination he/she shall be eligible for promotion as Assistant Engineer against the quota allotted for those possessing the qualification 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.I.M.E. (India) Examination, possessed the qualifications mentioned in item (i) of the Annexure have been considered. WA NOS.2206 & 2213 OF 2023 and WA No.66 of 2024 -: 18 :- - 13.The petitioners in W.P.(C).No.5722 of 2023 are individuals who were included in the ranked list published by the Public Service Commission (PSC) for direct recruitment to the post of Assistant Engineer from the open market in the Kerala Water Authority (KWA). - 14.The respondents 4 to 10, were appointed as Draftsman Group I in the Kerala Water Authority. At the time of joining the service, some of them had the qualification of Diploma in Engineering and B.Tech Degree in Engineering. After entering service as Draftsman Grade I in the KWA, the rest of them acquired a B.Tech Degree. - 15.Going by the Rules, insofar as in-service candidates like respondents 4 to 10 are concerned, by virtue of their possession of qualification of Diploma in Engineering, they are entitled to seek appointment to the category of Assistant Engineer by promotion in the quota earmarked for Overseers, and they can also seek for direct recruitment through the Public Service Commission to the category of Assistant Engineer in the 6% out of 60% for direct recruitment if they possess Degree in Engineering. WA NOS.2206 & 2213 OF 2023 and WA No.66 of 2024 -: 19 :- 16.A notification was invited by the Public Service Commission inviting applications for direct recruitment to the post of Assistant Engineer. Ext.P1 ranked list was published consequent thereto. The PSC had also invited applications for qualified inservice candidates possessing a Degree in Engineering qualification for direct recruitment in the 6% quota earmarked for departmental candidates. 17.Respondents 4 to 10 submitted their applications for direct recruitment in the 6% quota earmarked for departmental candidates. After completing the selection process, the PSC published a ranked list for appointment of departmental candidates as Assistant Engineer in the 6% quota earmarked for them with effect from 21/03/2017 as borne out from Ext.P7. It is stated that respondents 4 to 9 have been included as Rank Nos. 26, 31, 32, 11, 12 and 3. It is stated that though respondents 4 to 9 were included in Ext.P7 rank list for direct recruitment to the post of Assistant Engineers under the Departmental Quota on the basis of their possession of a Degree in Engineering, they declined appointment under the Direct Recruitment Quota, since they had already been promoted as Assistant Engineer on WA NOS.2206 & 2213 OF 2023 and WA No.66 of 2024 -: 20 :- promotion by virtue of their possession of Diploma in Engineering in the 40% quota earmarked for promotion. The 10[th] respondent was also appointed later as Assistant Engineer by promotion. It is stated that respondents 4 to 10, who were appointed by promotion as Assistant Engineers will continue to be Assistant Engineers falling under the Diploma Quota. - 18.The petitioners in W.P.(C).No.5722 of 2023 contended that as they were directly recruited Assistant Engineers with Degree in Engineering as qualification, they are entitled to get seniority under Rule 27 (c) of the Kerala State and Subordinate Service Rules, 1958 with effect from the date of their advice. - 19.The 3[rd] respondent, as per proceedings dated 31/12/2021, published Ext.P8 provisional seniority list of Assistant Engineers, Degree quota (Direct and Departmental) and the petitioners have been included in the same. It is stated that in Exhibit P8, the Assistant Engineers who were appointed on the advice of the PSC from the open market and the Departmental Quota candidates who were appointed as Assistant Engineers on the basis of the advice of the PSC in the 6% quota were included. The WA NOS.2206 & 2213 OF 2023 and WA No.66 of 2024 -: 21 :- respondents have also issued Exhibit P9 provisional seniority list of Assistant Engineers (Diploma and Certificate) and in the said list, the respondents 4 to 10 have been included. - 20.The petitioners contend that respondents 4 to 10 acquired the Degree in Engineering qualification while continuing as Draftsman Grade-I. They got appointed as Assistant Engineer by promotion under the Diploma quota. Relying on the Special Rules, the petitioners assert that respondents 4 to 10 are not entitled to exercise an option to come over to the Degree quota for promotion to the category of Assistant Engineer. 21.By Ext.P12 proceedings the final seniority list of Assistant Engineers in the Degree quota was published in which respondents 4 to 10 were included in the seniority list of Assistant Engineers possessing Degree qualification. It is stated that the said seniority list is in respect of persons who were directly recruited from the open market and from Departmental Quota on the strength of their Degree qualification. It is stated that the writ petitioners have been placed juniors to respondents 4 to 10 in Ext.P12. WA NOS.2206 & 2213 OF 2023 and WA No.66 of 2024 -: 22 :- 22.The writ petitioners objected to the inclusion of respondents 4 to 10 in Ext.P12 seniority list by submitting Exts.P14 and P15 representations. It is further stated that the 4[th] respondent was thereafter included in Ext.P16 select list for promotion to the post of Assistant Executive Engineer in the Degree Quota. Immediately thereafter, Ext.P17 promotion order has been issued promoting the 4[th] respondent as Assistant Executive Engineer in the Degree Quota. Thereafter, Ext.P18 select list was also issued, including respondents 5 to 9 except 6[th] respondent, which led to the filing of W.P.(C) No.5722/2023. 23.A counter affidavit was filed in W.P.(C).No.5722/2023 by respondents 1 to 3. It is stated that the 1[st] petitioner was provisionally appointed on 26.11.2017 and has joined service as Assistant Engineer in the Kerala Water Authority through PSC under the Degree Quota. The 2[nd] petitioner joined the service of the KWA on 16.3.2005. After joining the service, she applied for LWA for five years with effect from 28.3.2005. On the basis of her application, she was extended leave for a further period of five years retrospectively from 20.4.2005. It is stated that the respondents 4 to 9 have joined the KWA as Draftsman Grade I WA NOS.2206 & 2213 OF 2023 and WA No.66 of 2024 -: 23 :- through PSC and under the compassionate scheme during the period from 2001-2005. Ext.P12 final seniority list under the Degree Quota was published on 20.4.2022. Later, Ext.P12 was placed before the DPC and the select list of Assistant Engineers for the year 2022 was published on 12.12.2022. The 4[th] respondent was included under the Degree Quota and she has been promoted as Assistant Executive Engineer as per Ext.R1(e) promotion order. It is stated that the conditions of the Kerala Public Health Engineering Subordinate Service Rules have been strictly complied with by the respondents. As the respondents 4 to 10 are graduates, there is no impediment in including them in the list for promotion. It is further stated that Ext.R1(g) Special Rules enables respondents 4 to 10 to change over the quota from Diploma to Graduate if they had acquired Degree qualification. - 24.In the counter affidavit filed by the 4[th] respondent, it was stated that she was directly recruited to the post of Draftsman Grade I on 4.10.2001 and was promoted to the post of Assistant Engineer on 3.10.2015. It is stated that the combined seniority list of Assistant Engineers to the Degree quota (Direct, WA NOS.2206 & 2213 OF 2023 and WA No.66 of 2024 -: 24 :- Departmental and Promotee) was published on 20.4.2022 and the same has not been challenged. It is stated that when the 4[th] respondent was directly recruited to the cadre of Draftsman Grade I and opted the graduate quota for promotion, the petitioners were not in the service of the KWA. It is further stated that only after granting seniority to the degree holders in service that the appointees in the service who opted for Degree quota shall be considered. The promotion to the post of Assistant Executive Engineer is not solely based on seniority as it is a selection post. She was considered for promotion to the post of Assistant Executive Engineer in the DPC held on 1.8.2022. 25.In the counter affidavit filed by respondents 5, 7, 8 and 9, it was stated that the inclusion of the respondents in the select list is not under challenge. It is further stated that the 5[th] respondent was promoted on 3.10.2015, the 7[th] respondent on 8.11.2016 and respondents 8 and 9 on 18.11.2016 whereas the petitioner was directly recruited only much later. In that view of the matter, the petitioner is not entitled to claim seniority in the cadre of Assistant Engineer over the respondents. WA NOS.2206 & 2213 OF 2023 and WA No.66 of 2024 -: 25 :- 26.The learned single Judge considered the pleadings, arguments and the Special Rules and found that the degree holders and diploma holders are separate and distinct categories insofar as the promotion to the post of the Assistant Executive Engineer is concerned. Relying on the decision of the Apex Court in **Chandravati vs C. K. Saji** [2004(2) KLT 320(SC), it was held that a person having been appointed to a higher category under the diploma quota cannot thereafter exercise any option to switch over to the degree quota for further promotion. W.P.(C).No.5277 of 2023 was, therefore, allowed and W.P.(C).No.27817 of 2023 filed by the contesting respondents in the earlier writ petition was dismissed. - 27.It is contended by the learned Senior Counsel appearing for the appellant in Writ Appeal No.66 of 2024 that the appellants were Degree holders who had been appointed through the compassionate appointment scheme as Draftsman/Overseer in the KSEB. It is submitted that though they had the qualification for direct appointment as Assistant Engineers they were not given the said appointment only because the appointment was under the dying in harness scheme. It is submitted that they had WA NOS.2206 & 2213 OF 2023 and WA No.66 of 2024 -: 26 :- submitted representations seeking appointment as Assistant Engineers and their promotion to higher posts considering their degree qualification and it was considering such representations preferred by them that they had been included in the Degree holder's quota for promotion to the post of Assistant Executive Engineer. It is further submitted by the learned Senior Counsel that Annexure C in W.A.No.66 of 2024 which was a select list dated 10.10.2022 was not under challenge and therefore the reliefs could not have been granted. It is submitted that there is no illegality in the action of the official respondents in having considered them for promotion as Assistant Executive Engineer in the Degree quota. 28.The learned counsel appearing for the appellants in W.A.No.2213 of 2023 and 2206 of 2023 submitted that the learned single Judge had not considered the effect of Annexure-1 technical service rules which were brought into force on 27.01.2023. It is further submitted that Exhibit P18 which was under challenge in W.P. (C).No.5277 of 2023 was dated 14.2.2023 and that the nonconsideration of the effect of Annexure A1 special rules completely vitiated the judgment. It is further submitted that the WA NOS.2206 & 2213 OF 2023 and WA No.66 of 2024 -: 27 :- decision in **Chandravati vs C. K. Saji** was only with regard to the option to be exercised by an Assistant Engineer who obtained promotion in the Diploma category to come across to the Degree quota. The proposition was that a person who had obtained a promotion to the post of Assistant Engineer could exercise an option to come over to the Degree quota subject to the condition that he is placed below all the persons included in the degree quota as on the date of his option in the seniority list. It is contended that there is no question of exercising any option in the instant case since the appellants were persons who already possessed degree qualification even before they were promoted as Assistant Engineers and therefore they had only sought inclusion in the list of degree holder Assistant Engineers for promotion to the post of Assistant Executive Engineer. It is submitted that there is nothing in the special rules which prevent their inclusion in the degree holders quota and that the findings to the contrary are unsupported by any material. 29.Adv.Elvin Peter, the learned counsel appearing for the writ petitioners/respondents in the writ appeals submits that what is under challenge was the fixation of seniority of Assistant WA NOS.2206 & 2213 OF 2023 and WA No.66 of 2024 -: 28 :- Engineers in the KWA as on 31.12.2021 as is evident from the relevant ranked list. It is submitted that it is on the basis of the assigning of seniority of Assistant Engineers as on 31.12.2021 that the selection and appointment for the post of Assistant Executive Engineers has been effected. It is submitted that Exhibit P2 final seniority list dated 20.04.2022, Exhibit P16 select list dated 10.10.2022, Exhibit P17 promotion order dated 22.10.2022 as well as Exhibit P18 select list dated 14.02.2023 were under challenge in the writ petition. It is submitted that the seniority of Assistant Engineers had been reckoned on the basis of the Special Rules in force and that the notification of Annexure A1 Special Rules w.e.f. 27.1.2023 has absolutely no bearing on the question required to be considered in these appeals. It is submitted that even going by Annexure A1 Special Rules, there is no provision for including a person, who has been promoted as Assistant Engineer in the Diploma quota in the seniority list of Assistant Engineers having Degree qualification and for preferring them for appointment as Assistant Executive Engineer. The learned counsel relies on the decision reported in **Sooryanathan v. State of Kerala** [2004 (1) KLT 383] to contend that since the inclusion of the party respondents in the writ WA NOS.2206 & 2213 OF 2023 and WA No.66 of 2024 -: 29 :- petition in the seniority list of directly recruited degree holders Assistant Engineers was incorrect, all other proceedings dependant thereon including the select list and the promotion orders would be non est since they are dependant orders of an illegally prepared seniority list. Reliance is also placed on the decisions reported in **J.N.Ganatra v. Morvi Municipality, Morvi** [(1996) 9 SCC 495] (para 4) and **Bhavnagar University v. Palitana Sugar Mill (P) Ltd. And others** , [(2003) 2 SCC 111] to contend that once statutory rules prescribe a procedure, power has to be exercised in accordance with the provisions of the statute and in no other manner. The decision in **State of M.P. v. Mangilal Sharma** [(1998) 2 SCC 510] is also relied on to contend that a Government servant is appointed to his post, he acquires a status and his rights and obligations are no longer determined by consent of parties but by statute or statutory rules framed by the Government. - 30.We have considered the contentions advanced. The primary contention urged by the appellant in W.A.No.2213 of 2023 was that the reliance on Exhibits P4 and P5 Special Rules where completely flawed in view of the fact that Annexure A1 Special WA NOS.2206 & 2213 OF 2023 and WA No.66 of 2024 -: 30 :- Rules replaced Exhibits P4 and P5 with effect from 27.1.2023. We notice that Exhibit P12, which was under challenge in W.P. (C).No.5277 was a seniority list issued on 20.4.2022. Exhibit P16 select list was dated 10.10.2022 and Exhibit P17 promotion order was issued on 22.10.2022. It is submitted that Exhibit P18 select list has also been issued on the basis of Exhibit P12 final seniority list and therefore the contention is completely misconceived. We notice that Annexure A1 Special Rules are prospective in operation and has been brought into force only on 27.1.2023. The contention that the consideration of the effect of Exhibits P4 and P5 was erroneous, therefore, cannot be accepted. 31.Moreover we notice that the provision in Annexure A1 Special Rules for appointment to the post of Assistant Executive Engineer/Deputy Executive Engineer is also that the post shall be filled up by promotion from Sl.No.2 and 6 of Category 2, that is the post of Assistant Engineer and Mechanical Superintendent in the ratio of 3:1 between Degree holders and Diploma holders. Note (2) appended to the qualification for Assistant Executive Engineer provides that a person who WA NOS.2206 & 2213 OF 2023 and WA No.66 of 2024 -: 31 :- acquires the Degree qualification as specified in Column (4) against this category after his appointment as Assistant Engineer shall be eligible for promotion as Assistant Executive Engineer only after considering the claims of all Assistant Engineers who possess the qualification prior to the date of publication of the result of the qualifying examination. It is, therefore, clear that there is no provision in Annexure I Rules also which permits a person who already had degree qualification before his appointment by promotion as Assistant Engineer, but who got such promotion as Assistant Engineer in the Diploma quota, to changeover to the degree quota in the post of Assistant Engineer. The Rules only contemplate a situation where the person acquires the qualification of Degree while working as Assistant Engineer and in such cases also, they can take seniority in the seniority list of Assistant Engineers only after all those persons who have the Degree qualifications as on that date. Therefore, the contention that if appointment is made in terms of Annexure A1 Special Rules, the contesting respondents would have a claim to be included in the seniority list of Degree holder Assistant Engineers, also is not justified. WA NOS.2206 & 2213 OF 2023 and WA No.66 of 2024 -: 32 :- 32.We notice that Annexure C produced along with W.A. No.66/2024 was Exhibit P16 which was under challenge in W.P.(C).No.5722 of 2023 which has been quashed in so far as it included the party respondents in preference to the petitioners and therefore the said contention cannot be accepted. The further contention of the learned Senior Counsel that the appellants in W.A.No.66 of 2024 were persons, who were appointed under the compassionate appointment scheme cannot make a difference to the situation, since the Special Rules did not provide for including persons who have obtained promotion in the diploma quota to the post of Assistant Engineer in the list of degree holders for further promotion to the post of Assistant Executive Engineer. In the light of the provisions of the Special Rules, we are of the opinion that the arguments raised to the effect that the judgment of the learned single Judge was erroneous cannot be accepted. The writ appeals fail. The same are accordingly dismissed. ## **Sd/Anu Sivaraman, Judge** **Sd/C. Pratheep Kumar, Judge** sj19/1 WA NOS.2206 & 2213 OF 2023 and WA No.66 of 2024 -: 33 :- ## **APPENDIX OF WA 2206/2023** ## **PETITIONER ANNEXURES :-** **Annexure A1 TRUE COPY OF THE GOVERNMENT ORDER G.O(P) NO.1/2023/WRD DATED 27/1/2023 Annexure A2 TRUE COPY OF THE REVIEW PETITION DATED 25/11/2023 IN R.P.NO.1285/2023 Annexure A3 TRUE COPY OF THE PROVISIONAL SENIORITY LIST OF ASSISTANT ENGINEERS ( BOTH DEGREE, DIPLOMA & CERTIFICATE HOLDERS) PUBLISHED AS PER CIRCULAR OF THE KERALA WATER AUTHORITY DATED 7/12/2023** WA NOS.2206 & 2213 OF 2023 and WA No.66 of 2024 -: 34 :- ## **APPENDIX OF WA 2213/2023** ## **PETITIONER ANNEXURES :-** **Annexure A1 TRUE COPY OF THE GOVERNMENT ORDER G.O(P) NO.1/2023/WRD DATED 27/1/2023 Annexure A2 TRUE COPY OF THE REVIEW PETITION DATED 25/11/2023 IN R.P.NO.1282/2023 Annexure A3 TRUE COPY OF THE PROVISIONAL SENIORITY LIST OF ASSISTANT ENGINEERS ( BOTH DEGREE, DIPLOMA & CERTIFICATE HOLDERS) PUBLISHED AS PER CIRCULAR OF THE KERALA WATER AUTHORITY DATED 7/12/2023** WA NOS.2206 & 2213 OF 2023 and WA No.66 of 2024 -: 35 :- ## **APPENDIX OF WA 66/2024** ## **PETITIONER ANNEXURES :-** **Annexure A TRUE COPY OF THE REQUEST MADE BY THE 1ST APPELLANT BEFORE THE MANAGING DIRECTOR, KERALA WATER AUTHORITY ON 06.03.2017 Annexure B TRUE COPY OF THE REQUEST MADE BY THE 2ND APPELLANT BEFORE THE MANAGING DIRECTOR,, KERALA WATER AUTHORITY ON 04.01.2022 (WITHOUT ENCLOSURES) Annexure C TRUE COPY OF THE SELECT LIST PUBLISHED BY THE KERALA WATER AUTHORITY AS PER NOTIFICATION NO.24187/E2(A)2021/KWA DATED 10.10.2022 Annexure D TRUE COPY OF THE ORDER NO.3568/E2(A)/2020/KWA DATED 22.10.2022 OF THE KERALA WATER AUTHORITY.**