# CHANDRA VA THI P.K. AND ORS. -· v. C.K. SAJI AND ORS

- **Citation:** [2004] 2 S.C.R. 331
- **Court:** Supreme Court of India
- **Decided:** 2004-02-12
- **Case number:** Civil Appeal No. 884 of 2002
- **Bench:** V.N. Khare, S.B. Sinha, S.H. Kapadia
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/chandra-va-thi-p-k-and-ors-v-c-k-saji-and-ors-19715
- **Pages:** 22

## Headnote

Service Law:
c
Constitution of India-Article 309-Kerala Public Health Engineering
Service Rules-Rule 4-Kerala Engineering Service (General Branch) Service
Rules-Rules 4(a) and 5-Emp/oyees acquiring degree qualifications while in
service-Rules does not give weightage of service before acquiring the degree
for purpose of seniority and promotion-Constitutional validity_ of-Held, the
rules are constitutionally valid
D
The appellant-degree holders acquired their qualifications before
joining the service whereas the respondent-diploma holders acquired their
degree qualifications while in service. Under the State Service Rules, the
period of service rendered before acquiring the degree qualifications would
not be considered for the purpose of seniority and promotion in the quota
E of the degree holders and hence the respondents were placed at the bottom
of the seniority list for promotion. The respondents filed a Writ Petition
before High Court challenging the relevant rule as violative of Article 14
of the Constitution of India and hence ultra vires. The High Court quashed
the relevant Rule as ultra vires and held that the respondents are entitled
F
to claim weightage in service rendered before acquiring the degree
qualifications for the determination of the seniority and promotion.
In appeal to this Court, the appellants, who were not parties before
the High Court, contended that the Rules are not violative of Article 14
of the Constitution of India; that they are senior to the diploma-holders
G since they acquired 'their degree before joining service; and that there is
no illegality in the Rules by placing the respondents at the bottom of the
seniority list since they acquired their degree qualification while in service.
.;.
Disposing of the appeals, the Court
t
H
330
II
(
CHANDRA V ATHI P.K. v. C.K. SAJI
331
HELD: 1.1. A bare perusal of State Service Rules show that the A
•
avenues for promotion for the degree-holders and the diploma-holders are
separate. By reason of an amendment in the Rules, promotion were sought
to be given to those diploma-holders, who acquired the degree, by way of
accelerated promotions. Only upon acquiring a degree, the diploma-holder
became eligible to exercise his option to be considered for promotion in B
the stream of the officers belonging to degree-holders. The diplomaholders, who acquired a higher qualification during service, had either to
opt for promotion for the degree-holders quota or for diploma-holders
quota. Once he opts for a promotion in the degree-holders quota, the rule
of seniority would apply as he acquired the qualification therefor
subsequently. (345-F, G)
C
1.2. The High Court failed to notice that the Rules clearly establishes
that a diploma-holder, who subsequently acquired a degree qualification,
would be eligible for promotion only in the event he fulfils the conditions
precedent therefor and not otherwise. His case could be considered only
after the cases of promotion of those who had been holding the degree D
qualification. By reason of acquisition of higher qualification, the diplomaholders would not become entitled to be considered for promotion as they
in terms of the Rules were to be regarded junior most in the seniority list.
As separate seniority lists were being maintained in respect of the degreeholders, dipolma-holders and certificate-holders, once a diploma-holders E
acquiring a qualification of a degree in engineering opts for being included
in the stream of the degree-holders, he would have to be placed at the
bottom of the relevant seniority list. [346-C-E, G)
N. Suresh Nathan and Anr. v. Union of India and Ors., [1992] Supp. 1
SCC 584; MB. Joshi and Ors., etc. v. Satish Kumar Pandey and Ors. etc., p
[1993] Supp. 2 SCC 419; Satpal Anti/ etc. v. Union of India and Anr., [1995)
4 SCC 419; Satpal Anti/ etc. v. Union of India and Anr., [1955] 4 SCC 419;
D. Stepen Joseph v. Union of Indian and Ors., [1997) 4 SCC 753; Anil Kumar
Gupta and Ors. v. Municipal Corporation

## Text

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\
A
CHANDRA VA THI P.K. AND ORS.
...-·
v.
C.K. SAJI AND ORS.
FEBRUARY 12, 2004
B
[V.N. KHARE, CJ., S.B. SINHA AND S.H. KAPADIA, JJ.]
Service Law:
c
Constitution of India-Article 309-Kerala Public Health Engineering
Service Rules-Rule 4-Kerala Engineering Service (General Branch) Service
Rules-Rules 4(a) and 5-Emp/oyees acquiring degree qualifications while in
service-Rules does not give weightage of service before acquiring the degree
for purpose of seniority and promotion-Constitutional validity_ of-Held, the
rules are constitutionally valid
D
The appellant-degree holders acquired their qualifications before
joining the service whereas the respondent-diploma holders acquired their
degree qualifications while in service. Under the State Service Rules, the
period of service rendered before acquiring the degree qualifications would
not be considered for the purpose of seniority and promotion in the quota
E of the degree holders and hence the respondents were placed at the bottom
of the seniority list for promotion. The respondents filed a Writ Petition
before High Court challenging the relevant rule as violative of Article 14
of the Constitution of India and hence ultra vires. The High Court quashed
the relevant Rule as ultra vires and held that the respondents are entitled
F
to claim weightage in service rendered before acquiring the degree
qualifications for the determination of the seniority and promotion.
In appeal to this Court, the appellants, who were not parties before
the High Court, contended that the Rules are not violative of Article 14
of the Constitution of India; that they are senior to the diploma-holders
G since they acquired 'their degree before joining service; and that there is
no illegality in the Rules by placing the respondents at the bottom of the
seniority list since they acquired their degree qualification while in service.
.;.
Disposing of the appeals, the Court
t
H
330
II
(
CHANDRA V ATHI P.K. v. C.K. SAJI
331
HELD: 1.1. A bare perusal of State Service Rules show that the A
•
avenues for promotion for the degree-holders and the diploma-holders are
separate. By reason of an amendment in the Rules, promotion were sought
to be given to those diploma-holders, who acquired the degree, by way of
accelerated promotions. Only upon acquiring a degree, the diploma-holder
became eligible to exercise his option to be considered for promotion in B
the stream of the officers belonging to degree-holders. The diplomaholders, who acquired a higher qualification during service, had either to
opt for promotion for the degree-holders quota or for diploma-holders
quota. Once he opts for a promotion in the degree-holders quota, the rule
of seniority would apply as he acquired the qualification therefor
subsequently. (345-F, G)
C
1.2. The High Court failed to notice that the Rules clearly establishes
that a diploma-holder, who subsequently acquired a degree qualification,
would be eligible for promotion only in the event he fulfils the conditions
precedent therefor and not otherwise. His case could be considered only
after the cases of promotion of those who had been holding the degree D
qualification. By reason of acquisition of higher qualification, the diplomaholders would not become entitled to be considered for promotion as they
in terms of the Rules were to be regarded junior most in the seniority list.
As separate seniority lists were being maintained in respect of the degreeholders, dipolma-holders and certificate-holders, once a diploma-holders E
acquiring a qualification of a degree in engineering opts for being included
in the stream of the degree-holders, he would have to be placed at the
bottom of the relevant seniority list. [346-C-E, G)
N. Suresh Nathan and Anr. v. Union of India and Ors., [1992] Supp. 1
SCC 584; MB. Joshi and Ors., etc. v. Satish Kumar Pandey and Ors. etc., p
[1993] Supp. 2 SCC 419; Satpal Anti/ etc. v. Union of India and Anr., [1995)
4 SCC 419; Satpal Anti/ etc. v. Union of India and Anr., [1955] 4 SCC 419;
D. Stepen Joseph v. Union of Indian and Ors., [1997) 4 SCC 753; Anil Kumar
Gupta and Ors. v. Municipal Corporation of Delhi and Ors., (2000] 1 SCC
128; A.K Raghumani Singh and Ors. v. Gopa/ Chandra Nath and Ors., [2000]
4 SCC 30 and Pramod K. Pankaj v. State of Bihar, (2002) 9 Scale 813, JT (
(2003) 9 SC, 333 referred to.
2. It is well settled that the classification on the basis of educational
qualification is a reasonable one and satisfies the doctrine of equality as
adumbrated in Article 14 of the Constitution of India. [350-F-G]
332
SUPREME COURT REPORTS
(2004] 2 S.C.R.
I\
The State of Jammu & Kashmir v. Tri/oki Nath Khosa and Ors., AIR
(1974) SC I CB and Government of West Bengal v. Tarun K. Roy and Ors.,
(2003) 9 Scale 671, referred to.
'
'
..
3. The State, as an einployer, is entitled to fix a separate quota of
promotion for the degree-holders, diploma-holders and certificate-holders
=l
separately in exercise of its rule milking power under Article 309 of the
Constitution of India. Such a rule is not unconstitutional. The State may,
therefore cannot be said to have acted arbitrarily by giving an-option to
the diploma-holders, who acquired a higher qualification, so as to enable
them to either opt for promotion in the category of degree-holder or
~ · diplom~-holder. Such option was to be' exercised by the concerned officer
only. He, in a given situation, may feel th?tt he would be promoted in the
diplo~a-holders quota earlier then degree-holders quota and vice versa
but once he opts to join the stream of the degree-holders, he would be
placed at the bottom of the seniority list. [351-D~F]
)
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 884 of
2002.
From the Judgment and Order dated 28.8.98 of the Kerala High Court
in O.P. No. I 0484 of 1997-W.
WITH
C.A. Nos. 885-887, 888, 889 and 890-893 of 2002.
K. Sukumaran, P. Krishnamoorthy, T.L.V. Iyer, Mathai M. Paikeday,
Ms. Karthika S., Nishe Rajen Shonker, B.V. Depak, John Mathew for K.S.
Sasiprabhu, Romy Cliacko, Rajiv Mehta G.R.K. Prasad, Md. Wasay Khan, D.
Mahesh Babu, Ramesh Babu M.R. Ms. Prasuna, P.I. Jose, T.G.N. Nair Satya
Mitra Garg, Ms. Manju Agg'arwal, M.P. Vinod, Ajay K. Jain and Srinivash
for the appearing parties.
The Judgment of the Court was delivered by
S.B. SINHA, J. These appeals involving common questions of law and
fact were taken up for hearing together and are being disposed of by this
common judgment.
BACKGROUND FACT:
For the said purpose, however, we would note the fact of each matter
separately.
CHANDRA V ATHI P.K. v. C.K. SAJI [SINHA,J.]
333
CIVIL APPEAL NO. 884 OF 2002 :
A
The private parties, at all material times were and still are working with
the Kerala Water Authority. The appellants herein are degree-holders whereas
the private respondents herein are diploma-holders. The said respondents
acquired the qualification of AMIE Part-A and Part-B which is said to be
equivalent to the degree while they were in service.
B
For the puriiose of grant of promotion as also other conditions of service
governing the service of offices, the Authority had adopted the Kerala Public
Health Engineering Service Rules (Rules). It is not in dispute that there exist
three categories of posts in the engineering branch, namely, Assistant Engineer,
Assistant Executive Engineer and Executive Engineer.
C
Rule 4 of the said Rules reads as under :
"4. Promotion as Executive and Assistant Engineers :
(a) A person who obtains Degree in Engineering or A.M.l.E. (India) D
Diploma after appointment as Assistant Engineer shall be eligible
for promotion as Executive Engineer only after the claims of all
Assistant Engineers who on the date of his obtaining the degree
in Engineering or the AMIE (India) Diploma, possessed the
qualification mentioned in item (i) in the Annexure have been
considered.
E
(b) Vacancies in the category of Assi!;tant 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 3 : 1)
between
(l) Persons possessing any of the qualifications mentioned in
item (i) or in section A in item (ii) ofthe Annexure; and
(2) Those possessing any of the qualifications mentioned in
section B in item (ii) of the Annexure or those possessing
F
the SMT, Overseers certificate, every 5th vacancy being G
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 AMIE (India) Examination shall be eligible
for promotion as Assistant Engineer against the quota allotted for H
334
SUPREME COURT REPORTS
(2004] 2 S.C.R.
A
those possessing the qualifications mentioned in item (i) or Sec. A in
item (ii) of the Annexure on iy after the claim of all those who, on the
date of his passing the AMIE (India) Examination, possessed the
qualifications mentioned item (i) of the Annexure have been
considered.
B
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."
Rule 5 of the Kerala Engineering Service (General Branch) Service
C Rules reads thus : .
D
E
F
G
H
"5. Promotion as Executive and Assistant Executive Engineers.-
(a) A person who obtains the AMIE (India) Diploma or a pass in
section A & B of the AMIE of the Institution of Engineers (India)
in Civil or Mechanical Engineering after appointment as Assistant
Executive Engineer shall be eligible for promotion as Executive
Engineer only after the claims of all Assistant Executive Engineers
who, on the date of his obtaining the AMIE (India) Diploma or
a pass in Section A & B of the AMIE of the institution of
Engineers (India) in Civil or Mechanical Engineering, possessed
the qualification mentioned in item (i) and section A in item (ii)
in the Annexure have been considered.
(b) Vacancies in the category of Assistant Executive Engineers shall
be filled up from among Assistant Engineers in the ratio of75:20:5
respectively from among
(l) Persons possessing any of the qualifications mentioned in
item (i) or in section A in item (ii) of the Annexure.
(2) Those possessing any of the qualifications mentioned in
Section B in item (ii) of the Annexure, and
(2) Those possessing the Draftsman Certificate of the Co~lege
of Engineering, Guindy or SMT Overseer's Certificate.
A person, who while holding the post of Assistant Engineer
passes Sections A and B of the AMIE (India) Examination or a Degree
in Engineering of a recognized University shall be eligible for
,,,,.....
-
"'
_.......
"
CHANDRAVATHI P.K. v. C.K. SAJI [SINHA,J.)
335
promotion as Assistant Executive Engineer against the quota allotted
for those possessing the qualifications mentioned in item (i) ?r Section
A in item (ii) of the Annexure only after the claims of all those who
on the date of his passing the AMIE (Jndia) Examination or a Degree
in Engineering of a recognized University possessed the qualifications
mentioned in item (i) in the Annexure have been considered.
Provided that it will be left to the option of such person to continue
among the Assistant Engineers possessing the qualifications mentioned
in Section-Bin item (ii) of the Annexure and claim promotion against
the quota allotted to them.
Note.-1.The separate quota allotted to the Certificate Holders will be
abolished as soon as the holders of the SMT Overseers Certificate
and Draftsman Certificate of the College of Engineering, Guindy in
service are absorbed as Assistant Engineers. Thereafter the ratio will
revert to 3 : I on cadre strength between Degree holders and Diploma
holders.
2. The ratio fixed for promotion to the cadre of Assistant Executive
Engineers will be applied to the cadre strength of Assistant Executive
Engineer as a whole, i.e., to the total number of posts of Assistant
Executive Engineers in the Department and not to vacancies as they
arise. Separate seniority lists will be maintained for the purpose in the
cadre of Assistant Executive Engineers for degree holders/Diploma
holders and certificate holders and promotions and reversions of each
category of officers will be continued to the quota allowed for each
category within the cadre strength notwithstanding anything contained
in the Kerala State and Subordinate Services Rules."
Rule 4 (a) of the Kerala Engineering Service (General Branch) Rules
provides for qualifications which is the following terms :
A
B
c
D
E
F
"Qualifications : No person shall be eligible for appointment to the
category mentioned in column (I) of the table below unless he
possesses the qualifications prescribed in the corresponding entry in G
column (2) thereof.
H
336
A
B
c
D
SUPREME COURT REPORTS
[2004] 2 S.C.R.
Category
(I)
Superintending
Engineers
Executive
Engineers
Assistant
Executive
Engineers
TABLE
Qualifications
(2)
Must possess any degree or diploma mentioned
in item (i) or in Section-A under item (ii) in the
Annexure
Must possess any degree or diploma mentioned
in item (i) or in Section-A under item (ii) in the
Annexure.
Must possess any degree or diploma mentioned
in item (i) or (ii) in the Annexure
or
Must possess Draftsman's certificate of the
College of Engineering, Guindy (2 years course)
or SMT Overseers Certificate and must have
put in a total service of 25 years in the
department out of which 12!/z years must be as
Assistant Engineer.
E
Note : In the case of SMT Certificate holders and of those possessing
Draftsman's certificate of the College of Engineering, Guindy, for
the purpose of calculating the 25 years of total service, continuous
Work Establishment Service, if any, put in by such persons shall also
be reckoned subject to the condition that this shall not affect the
claims of any of the seniors of such persons in the category of Junior
F
Engineers."
The validity of said rule came to be questioned by the respondents by
filing a writ petition before the High Court, which was marked as O.P.
No.10484 of 1997-W. The matter as regard the validity of the said rule
G insofar as it applied to the Kerala Water Authority restricting the consideration
of the Assistant Engineers who possessed degree/ AMIE after the claims of all
those who on the date of their passing the AMIE/Degree possessed the
qualification mentioned above was referred to the Full Bench of the High
Court The Full Bench of the High Court despite observing that it was not
necessary to consider the validity of the rule and that there was no restriction
H imposed on the Assistant Engineers who acquired degree while they were in
-
CHANDRAVATHI P.K. v. C.K. SAJI [SINHA. J.]
337
the feeder category for promotion as Assistant Engineer, quashed the order A
impugned in the writ petition holding :
" ... It is held that the petitioner is entitled to promotion to the post of
Assistant Executive Engineer taking into consideration his entire
service as Assistant Engineer in a vacancy which ha.d arise11 in the
post of Assistant Executive Engineer after the date of his acquisition B
of degree qualification viz., September 1996. The petitioner will be
granted promotion as Assistant Executive Engineer forthwith, in the
vacancy in which the 2nd respondent was promoted. In the category
of Assistant Executive Engineer the petitioner will be treated as senior
to the 2nd respondent."
C
The .appellants herein were not parties in the said writ petition. They
filed this appeal being aggrieved by the said judgment, inter alia, contending
that the private respondents were junior to them and furthermore, there were
two different quotas for promotion from amongst the diploma-holders and
the degree-holders. By way of example, it had been pointed that services of D
the writ petitioners before the High Court (Private Respondents herein) were
regularized on 19.9.1990 and they had passed both Part A and Part B of the
Examination only in 1996 wher~as the said qualification was acquired by the
appellants herein were already holders of the degree qualification at the time
of joining of the post as Assistant Engineer on 15.12.1983, 3.5.1986 and
8.7.1986 respectively.
E
CIVIL APPEAL N0.889 OF 2002 :
The aforementioned appeal has been filed by the Kerala Public Works
Department Graduate Engineers Association questioning a judgment and order
dated 27.7.1999 of a Full Bench ofthe Kerala High Court in W.A. No.152 p·
of 1995-A arising out O.P. No.8441 of 1991 whereby and whereunder
following the decision of the Full Bench in Manmadhan vs. Kerala State
Electricity Board [ 1999 (1) KL T 37] as also the judgment of a Division
Bench in T.R. Krishnan vs. State of Kerala and Others disposed of on
19.2.1990 holding that Rule 5 of the Kerala Engineering Service (General G
Branch) was ultra vires.
CIVIL APPEAL NOS. 885 TO 888 AN1f 890 TO 893 OF 2002 :
Civil Appeal Nos.885 to 888 of. 2002 have been filed against the
judgment and order dated 2.11.1998 passed by the Full Bench in Writ Appeal H
338
SUPREME COURT REPORTS
[2004] 2 S.C.R.
A Nos. 1215, 1155of1991, 119of1992 and 1154of1991. The parties to these
appeals, however, are employees in the Harbour Engineering Branch of Kerala
Port Trust. The Harbour Engineering Department is an independent department.
No rule which are in pari materia with the rules aforementioned govern the
tenns and conditions of servic.e of the employees working therein. The rules
applicable to the Harbour Engineering Branch of the Kerala Port Trust govern
B the matter relating to promotion to the posts of Assistant Executive Engineer.
For the purpose of promotion to the post of Assistant Executive Engineer, the
rules provided for grouping of Assistant Engineers into Group-A and GroupB; whereas Group-A comprise of Graduate Assistant Engineers Group-B
comprised of Diploma-holder Assistant En~ineers. The qualifications for
C promotion to the post of Assistant Executive Engineer against each Group
read thus :
D
Group-A:
"1. B.Sc. Degree in Engineering (Civil) of a recognized University
of India.
2.
A minimum period of 3 years service as Assistant Engineer
Group-B:
~
I.
Diploma in Civil Engineering or any other qualifications
E
recognized by the Government of Kerala as equivalent thereto.
F
G
H
2.
A minimum period of 7 years service out of which 5 years shall
be as Assistant Engineer in the Harbour Engineering Branch.
Note :A ratio of3: I of the total posts of Assistant Executive Engineer
shall be applied between candidates possessing the qualifications under
Group A and candidates possessing qualifications under Group B in
the matter of appointment to the category of Assistant Executive
Engineer.
In the absence of candidates possessing qualifications under GroupB vacancies reserved for such candidates shall also be filled up by
"'
candidates possessing qualifications under Group-A"
..
The parties, therefore, are not governed by any rule, where the question
as regard acquisition of a highet\,'iiualification arises while in service.
Before the learned Single Judge of the Kerala High Court before whom
-
CHANDRA V ATHI P.K. v. C.K. SAJI [SINHA, J.]
339
the writ petition came up for hearing, a purported draft rule was placed which A
reads as under :
"A person, who while holding the post of Assistant Engineer possess
Sections A and B of the AMIE (India) Examination or a Degree in
Engineering of a recognized University shall be eligible for promotion
as Assistant Executive Engineer against the quota allotted for those B
possessing the qualifications 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 AMIE (India) Examination, or a Degree
in engineering of a recognized University possessed the qualifications
mentioned in item (i) in the Annexure have been considered."
C
Having regard to the fact that Rule 5 of the Kerala Engineering Service
(General Branch) Rules, as amended on 8.6.1982 was declared ultra vires in
T.R. Krishnan (supra), the lea~ed Judge although noticed that the said
amendment had not come into force and as such the validity thereof need not
be gone into, held :
D
"If the stand taken by respondents l and 2 is accepted, a Diploma
holder Assistant Engineer, who has put in long years of service in
that cadre will loose the benefit of that experience on his acquiring
Degree qualification. He will have to come to Group A as the junior
most and then put in service for three years. The experience gained E
by them cannot be wiped off on the ground that they acquired the
degree in Civil Engineering. This is illegal and arbitrary. An Assistant
Engineer, who is a Diploma holder, on acquiring Degree qualification,
cannot be compelled to disgorge the benefit of the experience gained
by him as Assistant Engineer. He must have credit of the experience.
Depending on the rank in the seniority list and the Degree qualification, F
which he acquired subsequently, as on the date of occurrence of the
vacancy must be considered for appointment by transfer to the cadre
of Assistant Executive Engineer. Petitioner who took the Degree in
1986 and had put in 6\12 years of experience on that date, must be
considered as a Graduate Assistant Engineer for being appointed to G
the post of Assistant Executive Engineer by transfer in the vacancy
which arose subsequent to November, 1986. The contrary stand taken
by respondents l and 2 is illegal."
The appeal against the said order was heard by the Full Bench along
with other connected matters and, as noticed hereinbefore, decided by the H
340
SUPREME COURT REPORTS
[2004) 2 S.C.R.
A impugned judgment.
SUBMISSIONS :
Mr. K .. Sukamaran, learned Senior. Counsel appearing on behalf of the ..
appellants in Civil App~al No.884 of 2002, Mr. P. K:rishilamoorthy, leamtld
B Senior Counsel appearing on behalf of the appellant in Civil Appeal No.889
of 2002 and Mr. John Mathew, learned counsel appearing on behalf of the
appellants in Civil Appeal Nos. 885 to 888 of 2002, would submit that the
Full Bench of the High Court committed a manifest error in passing the
impugned judgment insofar as it declared the relevant rules as ultra vires
C without assigning sufficient or cogent reasons in support thereof. The learned
counsel would submit that possession of a higher qualification has all afong
been trf?ated differently in the service rules and, thus, cannot be said to be hit
by Article 14 of the Constitution of India. It was further urged that there
exists separate channels for promotion to the post of Assistant Executive
Engineer and, thus, the appel,ants herein being degree-holders were seniors
D to the diploma-holders who acquired a higher qualification in service and if
they interid to avail the promotional avenue meant for the degree-holders,
they would be placed at the bottom of the list and, thus, no illegality can be
said to have been committed in considering them to be the juniormost in the
said channel; particularly keeping in view the fact that despite acquisition of
a higher qualification, the officer concerned had an opportunity to exercise.
E his option a:; regard promotion to the post of Assistant Executive Engineer.
•· .. f
.
Drawing our attentionto the judgment of the High Court in Krishnan 's
· case (supra), theJeame<l.:counsel woulcf:submit that from the factual matrix
obtaining· therein it would :.appear that the amendment to Rule .5 was he id .
ultra ~ires as by ~~aso11 thereofaright vested in him was sought fo be taken ' .
away'. The.said dedsion; th.e l~atned'coun$el would ·submitdoes not lay.down ..•
..
:
....
-
.
.
.
, .. ·
-·
the correct law.
Mr. T.L.V. Iyer, learned Senior Counsel appearing on behalf of the
respondents, on the other hand, would draw our attention to the fact that
G earlier there were three categories of officers in the engineering branch,
namely, Junior Engineer, Assistant Engineer and Executive Engineer, which
were re-designated as Assistant Engineer, Assistant Executive Engineer and
.......
Executive Engineer. The learned counsel would contend that having regard
to the fact that by reason of such redesignation the diploma-holders who
H were originally appointed as Junior Engineers also were redesignated as
.!·.
-\
\
-
CHANDRA V ATHI P.K. v. C.K. SAJI [SINHA, .I.]
341
Assistant Engineers, the impugned rule has rightly been held to be ultra vires A
and/or inapplicable in the case of the diploma-holders.
Mr. Mathai M. Paikeday, learned Senior Counsel appearing in Civil
Appeal Nos. 885-87, 888 and 890-93 of 2002, however, would urge that in
the case of Harbour Engineering Branchof the Kerala Port Trust, separate
rules exist and having regard to the fact that the purported draft rules never B
came into being, the concerned employees would be governed by the existing
rule in terms whereof, there are separate channels of promotions for the
diploma and degree-holders, as contained in Part A and Part B, as referred
to hereinbefore. The learned counsel appearing on behalf of the State of
Kerala, however, would submit that the proposed amendment although never C
came into force, but the same was indicative of the fact that the intention of
the State had all along been to have two categories of services and if pursuant
to or in furtherance thereof the degree-holders and diploma-holders are treated
separately, no fault can be found therewith.
QUESTION:
D
The short question which arises for consideration is as to whether in
terms of the scheme of the Kerala Engineering Service (General Branch)
Rules, diploma-holders are entitled to claim any weightage in the service
rendered by them prior to their acquisition of degree qualification in the
matter of promotion or transfer to higher posts when specific quota is fixed E
for graduates and diploma-holders in the matter of promotion.
ANALYSIS:
It is not in dispute that in terms of the extant rule, appointments to the
post of Junior Engineer which had later been re-designated as Assi$tant F
Engineer could be made by: (l) direct recruitment of graduate engineers; and
(2) promotion from first grade overseers possessing diploma and certificates
in the ratio of 5 : 3 : 2. The method of appointment of Assistant Executive
Engineer, however, was upon recruitment by transfer from Assistant Engineers
in the ratio of75 : 20 : 5 from amongst the persons possessing degree holders G
of diploma and certificate respectively. It is also not in dispute that promotion
to the post of Executive Engineer is to be made from amongst the Assistant
Executive Engineers. Rule 4 of the Kerala Health Engineering Service Rules
and Rule 5 of the Kerala Engineering Service (General Branch) Rules, in our
opinion, are to be read in their entirety. Clause (a) of the said Rules 4 and H
342
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[2004] 2 S.C.R.
A 5 respectively refer to acquisition of qualificati9n of Sections A and B in
AMIE after appointment as Assistant Engineer/ Assistant Executive Engineer
whereas clause (b) thereof provides for filling up of vacancies in the cadre
of Assistant Executive Engineers, one from amongst the persons who possess
any of the qualifications mentioned in item (i) or in Section-A in item (ii) of
B the Annexure, which indisputably refer to degree-holders, diploma-holders
and certificate-holders. By reason of the said rule, if a person while holding
the post of Assistant Engineer (erstwhile Junior Engineer) passes Sections A
and B of AMIE or a Degree in Engineering from a recognized University, he
would also be eligible for promotion against the quota allotted for those
possessing the degree qualification. By reason of the proviso appended to the
C said rule, however, the concerned Assistant Engineer has been given an option
to continue amongst the Assistant Engineers possessing diploma in engineering.
Rule 5(b) was amended on 20. 7 .1982. Prior to its amendment, the rule
provided that an Assistant Executive Engineer who possessed AMIE (India)
Examination was to be eligible for promotion as Assistant Executive Engineer
D in the quota of degree-holders only after promotion of those who were already
holding the degree qualification.
E
F
G
H
In T.R. Krishnan (supra), the question which were fonnulated read as
under:
"1. Whether the Asst. Ex. Engineers holding degree qualification
and diploma qualification are fused into one common category
and if so whether the principle laid down in Rajan vs. State of
Kerala 1983 KL T 878 would be applicable to the case of the
petitioner.
2.
Whether the petitioner is entitled to claim parity of treatment like
the certificate holders on the basis of Ext.P-7 order.
3.
Under the scheme of the Rules of the Kerala Engineering Service
General Branch, whether the petitioner is entitled to claim any
weightage for the service rendered by him prior to his acquisition
of degree qualfication.
4.
Does the amendment to rule 5 brought in by GO (P) No.79/82
dated 8.6.1982 in reality confer a benefit on diploma Engineers
who acquired degree qualification or does it in the guise of
conferring a benefit work hardship for them; and
(
..
CHANDRA V ATHI P.K. v. C.K. SAJI [SINHA, J.]
343
5.
On the totality of facts of this case and the position of his A
colleagues who were also recruited as diploma holder engineers,
whether any injustice has been done to the petitioner."
While considering Point Nos. I to 5 aforementioned, the Division Bench
came to the following conclusion :
" .. .In the absence of a statutory rule, which prescribes maintaining
separate seniority lists, it is not open to the government to contend
that the Asst. Exe. Engineers who come from the· category of diploma
holder Engineers and degree holder junior engineers are two different
B
and distinct classes. As the Rules stand, there is only an insistence
upon the minimum number of years of service to become eligible for C
appointment as Asst. Exe. Engineers. Similarly the rules also
contemplate that in the case of promotion to Exe. Engineers a person
should satisfy the requirement of having satisfactorily worked for a
period of not less than three years as Asst. Exe. Engineer."
Noticing the fact that the amendment in Rule 5 was made on or about D
8.6.1982, the Division Bench observed :
"21. If we examine Rule 5 we find that this. rule deals with diploma
holders who after appointment as Assistant Executive Engineers
acquired the degree qualification or AMIE qualification. This rule E
will not be applicable to the case of the present petitioner who acquired
his degree qualification as well as AMIE qualification prior to his
appointment as Asst. Exe. Engineer. He acquired his degree
qualification in November, 1975 and his AMIE qualification in summer
1975. He was elected as Member of the Institute of Engineers on
11.5 .1976, while he was appointed as Asst. Exe. Engineer with F
retrospective effect from 17.6.1978. This means that the petitioner
acquired the degree qualification prior to his appointment by transfer
as Asst. Exe. Engineer. He is outside the ambit of the category of
persons contemplated under sub-rule (a) of Rule 5.
The way in which Rule 5 has been amended a number of times, G
and the manner in which in 1982 Notes 1 and 2 are added at the end
of the Rule clearly indicates that the amendment is a motivated
amendment brought into existence after the petitioner agitated his
claim for promotion as Executive Engineer. It is brought into existence
with a view to defeat his claim. The petitioner is perfectly justified H
344
A
B
c
D
E
F
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[2004] 2 S.C.R.
in his contention that when he succeeded in the various writ petitions
and he got his services regularized and got his promotion. ln answer
to his representation for promotion as Exe. Engineer, the Government
introduced the amendment by issuing G.O. (P) No.79/82 dated
8.6.1982
Despite such a finding while considering the Point Nos. 3 and 5
aforementioned, the Division Bench opined :
"27. Point Nos. 3 and 5: The Kerala Engineering Service (General
Branch) Rules, as intimated while discussing point nos. l and 4, do
not provide for giving any weightage to diploma holders for their
service rendered as diploma holder Engineers, if they acquire a degree
qualification subsequentiy Rule 5 as it now stands works hardship for
diploma holder engineers who subsequently acquired degree
qualification. The amendment made in 1977 by G.O. (P) No.185/77 /
PW. dated November 1977 published in SRO No.1163/77 in the Kerala
(fazette dated 13.12.1977 does not confer any benefit by enabling
such diploma holders for being considered for promotion in the quota
of degree holder Asst. Exe. Engineers. In reality it makes them forgo
all their seniority as diploma holder Engineers and compete with such
younger people who might not have even studied engineering by the
time these people had entered Government service. Normally where
a diploma holder working in a particular category in which degree
holders are also working acquires the degree qualification, namely,
the higher qualification, justice requires that at least two-thirds or
half of his service as diploma holder engineer should be given as
weightage for the purpose of reckoning his seniority vis-· -vis graduate
engineers. As the Rules now exist, the so-called benefit conferred is
not a benefit, but it is more a detriment. We hold point No.3
accordingly.
28.We hasten to add that as the petitioner acquired his qualification
of B.Sc. engineering and AMIE prior to his appointment as Asst.
Exe. Engineer, his seniority for the purpose of promotion to the
category of Executive Engineer should be reckoned from the first
date of his service as Asst. Exe. Engineer, namely, 17.6.1978."
In the aforementioned fact situation, the Division Bench declared that
the amendment to Rule 5 introduced by G.O. (P) No. 7982 dated 8.6.1982 is
H arbitrary, discriminatory and unconstitutional as it was found violative of
CHANDRAVATHI P.K. v. C.K. SAJI [SINHA, J.]
345
Articles 14 and 16 of the Constitution of India.
The declaration of. amendments in Rule 5 as unconstitutional was an
obiter dicta.
A
Therein, the petitioner was awarded seniority in the case of Graduate
Assistant Executive Engineer w.e.f. 17.6.1978 i.e. with effect from the date B
of his appointment, as he had already acquired the qualification of degree in
engineering by that time. He was further directed to be promoted to the post
of Executive Engineer treating his claim as a graduate degree-holder Assistant
Executive Engineer with effect from 17 .6.1978 but despite the same, he had
not been granted a weightage for his service as Assistant Executive Engineer C
before he acquired the degree qualification. The decision of the Division
Bench ·of the Kerala High Court in T.R. Krishnan (supra) must also be
considered having regard to the factual matrix obtaining therein. In the said
writ petition, the writ petitioners alleged mala fide against the authorities
concerned which also found favour of the Bench. We have seen earlier that
the Division Bench came to the conclusion that the amended rule had no D
application in his case as he had been treated to be a Graduate Degree-holder
Assistant Executive Engineer with effect from 17.6.1978 and in that view of
the matter, it was not necessary for the Division Bench to go into the question
of validity of Rule 5.
INTERPRETATION OF THE RULES :
E
A bare perusal of Rules 4 and 5 of the Kerala Engineering Service
(General Branch) Rules would clearly go to show that the avenues for
promotion for the degree-holders and the diploma-holders were separate. By
reason of the amendment incorporated in the rule promotions were sought to F
be given to those who although were diploma-holders passed the Degree in
Engineering examination or Part A and Part B of AMIE by way of accelerated
promotions. Only upon acquiring such a degree, the diploma-holder became
eligible to exercise his option to be considered for promotion in the stream
of the officers belonging to the degree-holders. As such diploma-holder officers
who acquired a higher qualification during service had either to opt for G
promotion for the degree-holders quota or for diploma-holders' quota. Once
he opts for a promotion in the degree-holders' quota, rule of seniority would
apply as he acquired the qualification therefor subsequently.
H
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[2004] 2 S.C.R.
A FINDINGS:
The Full Bench of the Kerala High Court while deciding the matters
which are the subject-matters of Civil Appeal No.884 of 2002, unfortunately
did not address itself to the aforementioned question. If its finding to the
effect that "for promotion to the post of Assistant Executive Engineer ... there
B is no restriction imposed on the Assistant Engineers who acquired degree
while they are in the feeder category for promotion as Assistant Executive
Engineer" is correct, the same would make Rule 4(b) of the Kerala Public
Health Engineering Service Rules otiose. The said rule has to be read in its
entirety. The scheme contained therein must be given its full effect. The
C purport and object of such an amendment was made in the year 1982 was
required to be given deeper consideration. The High Court failed to notice
that a conjoint reading of Rule 4 and Rule 5 clearly establishes that a diplomaholder Assistant Engineer who subsequently acquired a degree qualification
would be eligible for promotion as Assistant Executive Engineer, only in the
event he fulfills the conditions precedent therefor and not otherwise and in
D terms thereof namely his case could be considered only after the cases of
promotion of those who had been holding such degree qualification have
been considered. By reason of acquisition of higher qualification only the
diploma-holders would not become entitled to be considered for promotion
as they in terms of the rules were to be regarded juniormost in the seniority
E list of the Graduate Assistant Engineers.
The Full Bench of the High Court, furthermore, unfortunately construed
Rule 4 in isofation without taking into consideration the effect of Rule 5(b)
in terms whereof it has clearly been laid down that the vacancies in the
category of Assistant Executive Engineers we~e to be filled up from amongst
p
the Assistant Engineers in the ratio of 75 : 20 : 5 from amongst the degreeholders, diploma-holders and certificate-holders. There cannot be any doubt
whatsoever that as separate seniority lists were being maintained in respect
of the degree-holders, diplorna~holders and certificate-holders; once a diplomaholder acquiring a qualification of a degree in engineering opts for being
included in the stream of the degree-holders, he would have to be placed at
G the bottom of the relevant seniority list.
We, for the reasons aforementioned, cannot accept the views of the
High Court.
However, so far as Civil Appeal Nos.890-93 of 2002 are concerned, it
H appears that amendment to the rule had never come into force and, therefore,
CHANDRAVATHI P.K. v. C.K. SAJI [SINHA, J.]
347
it is difficult to accept the contention of the learned counsel for the State that A
the degree-holders 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, degreeholders and diploma-holders have been placed separately, namely, Group-A
and Group-B and as such the persons holding the respective qualifications B
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 retrospective effect could not have been taken away.