WA.No. 1887 of 2006 & 112 of 2007, High Court of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 9TH MARCH 2010 / 18TH PHALGUNA 1931 WA.No. 1887 of 2006() --------------------AGAINST THE JUDGEMENT IN WPC.26614/2005 Dated 11/08/2006 .................... APPELLANT(S): RES. 4 & 5 IN THE WRIT PETITION ---------------------------------------------- 1. V.G.INDIRAKUMARI, NOW EXECUTIVE ENGINEER - WORKING AS TECHNICAL OFFICER, OFFICE OF THE CHIEF TECHNICAL EXAMINER, PULIMOOD, THIRUVANANTHAPURAM. 2. P.LETHA, NOW EXECUTIVE ENGINEER, FISHERIES HARBOUR DIVISION, KAYAMKULAM. BY ADV. SRI.KRB.KAIMAL, SENIOR ADVOCATE RESPONDENT(S): PETITIONER & RESPONDENTS 1 TO 3 IN THE WP --------------------------------------------------------- 1. SRI. P.K.ANILKUMAR, ASSISTANT EXECUTIVE ENGINEER, NEENDAKARA FISHING HARBOUR SUB DIVISION, HARBOUR ENGINEERING DEPT., SAKTHIKULANGARA, KOLLAM. 2. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, FISHERIES AND PORTS DEPARTMENT, KERALA GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. CHIEF ENGINEER, HARBOUR ENGINEERING DEPARTMENT, KAMALESWARAM, MANACAUD P.O., THIRUVANANTHAPURAM. WA.No. 1887 of 2006() 2 4. SELECTION COMMITTEE FOR THE POST OF EXECUTIVE ENGINEER IN THE HARBOUR ENGINEERING DEPARTMENT, REPRESENTED BY ITS CHAIRMAN NAMELY THE SECRETARY TO GOVERNMENT, (FISHERIES AND PORTS DEPARTMENT), SECRETARIAT, THIRUVANANTHAPURAM. BY ADV.SRI.S.RAMESH BABU FOR R1 BY SR.G.P.SRI.BENNY GERVACIS FOR R2 TO R4 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 09/03/2010, ALONG WITH WA NO. 112 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ.** ---------------------------------------- W.A.Nos.1887 of 2006 and 112 of 2007 ---------------------------------------Dated 9[th] March, 2010 ## **JUDGMENT** ## _**Balakrishnan Nair, J.**_ These appeals are directed against the judgment of the learned Single Judge in W.P.(C)No.26614 of 2005. Therefore they are heard and disposed of together. ## **W.A.No.1887 of 2006** 2. This appeal is treated as the main case, for the purpose of referring to the facts. Respondents 4 and 5 in the Writ Petition are the appellants. First respondent herein was the writ petitioner. Subject matter of the Writ Petition was concerning promotion from the post of Assistant Engineer in the Harbour Engineering Department to the post of Assistant Executive Engineer. The qualifications and method of appointment to the post of Assistant Executive Engineer in the said Department were governed by Annexure I Special Rules published by the Government as per SRO.No.775/75 on 6.8.1975. As per the method of appointment, under the said rules, the vacancies in the cadre of Assistant Executive Engineer have to be filled up by appointment by transfer from the category of Assistant Engineers of the Harbour Engineering Department, in their absence, by transfer W.A.Nos.1887/2006 & 112/2007 2 from Assistant Engineers of the Public Works Department and in the absence of any eligible hand for transfer, by direct recruitment. The qualification prescribed for transfer was B.Sc. Degree in Civil Engineering or Associate Membership Diploma of the Institution of Engineers (India) in Civil Engineering or pass in sections `A' and `B' of the Associate Membership of the Institution of Engineers (India) in Civil Engineering. The incumbent should have a minimum period of three years' service as Assistant Engineer. The said rule was amended by Ext.P11 amendment rules dated 15.11.1983 with retrospective effect from 12.2.1981. After the amendment, Diploma holders in Civil Engineering were also made eligible for transfer, provided they have a minimum period of seven years' service out of which five years' service should be as Assistant Engineer in the Harbour Engineering Branch. The amendment also provided a ratio of 3:1 for transfer between Degree holders and Diploma holders among Assistant Engineers. In 1995, the said rules have been repealed by a new set of rules called Kerala Harbour Engineering Service (Civil Branch) Rules. But, in this case, we are concerned with the promotion to the post of Assistant Executive Engineer between 1992 and 1994. Therefore, the newly introduced rules have no relevance in this case. 3. The appellants were appointed as Assistant Engineers on 29.3.1985 and 31.7.1986 respectively. They were graduates in Civil W.A.Nos.1887/2006 & 112/2007 3 Engineering when they joined service. There were three Diploma holders who were seniors to the appellants in service. They were appointed to the post of Assistant Engineer on 15.5.1980, 25.9.1980 and 28.12.1981. All of them acquired Degree in 1987. They claimed promotion as Assistant Executive Engineer, treating them as graduates, reckoning their entire seniority in the cadre of Assistant Engineer. But, the appointing authority rejected their claim. Therefore, they filed Writ Petitions before this Court and those Writ Petitions were allowed by judgment dated 30.9.1991. The appellants herein challenged the said judgment by filing Writ Appeals. While so, three vacancies arose in the cadre of Assistant Executive Engineer on 27.8.1992, 5.5.1993 and 11.10.1993. In view of the aforementioned judgment, the Diploma holders were promoted to those posts by Ext.P2 order dated 4.1.94. A few days before that, the first respondent was appointed directly to the post of Assistant Executive Engineer, on the advice of the Public Service Commission, on 10.12.1993. The Writ Appeals filed by the appellants were dismissed. The appellants and the State preferred Civil Appeals against the judgment in the Writ Appeals. Those appeals were disposed of, along with connected cases arising from the Public Works Department, as per the decision reported in _**Chandravathi**_ v. _**Saji**_ (2004 (2) KLT 320 (SC)). In the Special Rules governing appointment to the post of W.A.Nos.1887/2006 & 112/2007 4 Assistant Executive Engineer in the Public Works Department, there was a stipulation that if the Diploma holder acquires Degree and he opts to be considered in the Degree quota, he shall be treated as the junior most Degree holder among Assistant Engineers as on that date. The validity of the above stipulation was also under challenge before the Apex Court in the connected Civil Appeals. The Apex Court upheld the rules which provided that the Diploma holder who acquires Degree, on his option to be treated as a Degree holder for promotion, shall be treated as junior most among the Degree holders as on that date. But, the Apex Court stated that the said principle will not apply to the cases of the appellants herein, wherein there was no such stipulation in the Special Rules. The relevant portion of the judgment is at paragraph 33 which reads as follows: “33. However, so far as Civil Appeal Nos.89093 of 2002 are concerned, it appears that amendment to the rule had never come into force and, therefore, it is difficult to accept the contention of the learned counsel for the State that the degreeholders and diploma-holders were to be treated at par with the other cases. In fact, in terms of the rules applicable to the case of Harbour Engineering Branch of the Kerala Port Trust, two categories, namely, degree-holders and diploma-holders have been placed separately, namely, Group-A and GroupB and as such the persons holding the respective qualifications would be governed by the rules as existing then. In that view of the matter, the respondents would be in the same position as in the case of _T.R.Krishnan_ (supra) inasmuch a right vested in them, in absence of rule having been given a W.A.Nos.1887/2006 & 112/2007 5 retrospective effect could not have been taken away. The State in exercise of its power under Art.309 of the Constitution of India may give retrospective effect to a rule but the same must be explicit and clear by making express provision therefor or by necessary implication but such retrospectivity of a rule cannot be inferred only by way of surmises and conjectures.” Ultimately, the Civil Appeals were disposed of as per the directions contained in paragraph 43. The said paragraph reads as follows: “43. We, therefore, are of the opinion that the impugned judgments cannot be sustained which are set aside accordingly. We direct that the cases of all the concerned employees be considered strictly in terms of the extant rules. This direction shall also govern the appeal preferred by the State of Kerala.” Going by the directions in paragraph 43, all the promotions hitherto made have to reconsidered. In the light of the said judgment, the entire promotions from 1988 to 1996 were reviewed and Ext.P8 select list of Assistant Engineers eligible for promotion as Assistant Executive Engineers during different years was published. Ext.P8 contained another part also. It contained the list of Assistant Executive Engineers eligible for promotion as Executive Engineers. Based on Ext.P8, the first appellant was promoted as Executive Engineer by Ext.P7. The first respondent herein filed Ext.P9 representation against Ext.P8. The same was rejected by Ext.P10. 4. As mentioned earlier, the first appellant joined service as Assistant Executive Engineer pursuant to the advice of the Public W.A.Nos.1887/2006 & 112/2007 6 Service Commission on 10.12.1993. Because of the promotion of the appellants herein, who are younger in age compared to the Diploma holders, the first respondent's promotion prospects are affected. Therefore, he filed the Writ Petition challenging Exts.P7, P8 and P10. Respondents 4 and 5 who are the appellants herein, filed a detailed counter affidavit resisting the prayers in the Writ Petition. The learned Single Judge after hearing both sides allowed the Writ Petition. Hence this appeal by respondents 4 and 5. 5. We heard the learned counsel on both sides. The learned Senior Counsel for the appellants, apart from raising various contentions, submitted that the first respondent does not have locus standi to challenge the promotions made to the vacancies which arose before the first respondent joined the Department. He is not concerned whether `A' or `B' is promoted to those vacancies. None of his legal rights are affected by the promotion made in the Department. In answer, the learned counsel for the first respondent submitted that the appellants were promoted to the cadre of Assistant Executive Engineer only after he joined that cadre. Now, the promotions have been ante dated and therefore, his further promotion prospects are affected. So, he is adversely affected. Therefore, he necessarily has locus standi. W.A.Nos.1887/2006 & 112/2007 7 6. In this case, admittedly, the dispute relates to filling up of three vacancies in the cadre of Assistant Executive Engineer which arose on 27.8.1992, 5.5.1993 and 11.10.1993. Admittedly, the first respondent joined service only on 10.12.1993. He was advised for appointment only on 26.10.1993. So, he is not concerned whether those vacancies are filled up by Degree holders or Diploma holders. Those who are appointed to those vacancies will be his seniors. The prayer of the first respondent is essentially to fill up those vacancies with Diploma holders, so that, they being seniors in age will disappear from the field soon. We think, the said prayer cannot be allowed. Suppose the first respondent has a case that, in fact, there were no vacancies and the actual vacancies arose only after 10.12.1993, he may have the necessary standing to maintain the Writ Petition. But, here, his claim is that instead of `A', `B' and `C', `X', `Y' and `Z' should be promoted to the vacancies which admittedly arose before he joined the Department. The first respondent has no locus standi in that matter. He is a meddlesome interloper. In view of the above position, we are inclined to allow the Writ Appeal on the ground that the first respondent does not have locus standi to maintain the Writ Petition, wherein, essentially, the prayer is to fill the three vacancies, which arose during 1992-1993, by Diploma holders instead of Degree holders. In view of our finding on this point, it is unnecessary for us to W.A.Nos.1887/2006 & 112/2007 8 consider the other contentions on merits. Accordingly, the Writ Appeal is allowed. The judgment under appeal is reversed and the Writ Petition is dismissed. ## **W.A.No.112 of 2007** In view of the judgment in W.A.No.1887 of 2006, this Writ Appeal is allowed. ## **K.BALAKRISHNAN NAIR** ## **Judge** **P.N.RAVINDRAN Judge** TKS