IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 WP(C).No. 14828 of 2009(W) -------------------------- PETITIONER(S): --------------- SAJI VARGHESE, ASSISTANT ENGINEER(CIVIL) K.S.E.BOARD, CIVIL CIRCLE, PALLOM, KOTTAYAM. BY ADV. SRI.ELVIN PETER P.J. RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, POWER DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 3. THE CHAIRMAN, KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 4. THE CHIEF ENGINEER (H.R.M), KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 5. SUKUMARAN M.K., ASSISTANT EXECUTIVE ENGINEER, THOTTIAR HEP, THATTEKKANNI P.O., IDUKKI. 6. SUSY K.V., ASSISTANT EXECUTIVE ENGINEER, SENKULAM AUGMENTATION SCHEME, ANACHAL P.O., IDUKKI. 7. POULOSE P.K., ASSISTANT EXECUTIVE ENGINEER, VILANGAD H.E.P., PARIPPUPARA P.O., VADAKARA, KOZHIKODE. 8. JOSEPH JOHN, ASSISTANT EXECUTIVE ENGINEER, KOZHIKODE DIESEL POWER PROJECT, NALLALOM P.O., KOZHIKODE. SR.GOVT. PLEADER SRI. BENNY GERVASIS -R1 ADV. SRI. ASOK M.CHERIYAN, SC, KSEB FOR R2 TO 4 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.P.(C) NO. 14828 OF 2009 --------------------------------------------- Dated this the 10th day of June, 2009 JUDGMENT Balakrishnan Nair, J. The appellant is an Assistant Engineer(Civil) in the Kerala State Electricity Board (hereinafter referred to as “the Board.”). He is a graduate in Civil Engineering. He is aggrieved by the promotion granted to respondents 5 to 8 who are juniors to him in the cadre of Assistant Engineer and who were promoted superseding him because of the ratio prescribed in favour of the diploma holders. The Rules provide that the vacancies in the cadre of Assistant Executive Engineer shall be filled up between the degree holders and the diploma holders in the ratio of 3:1 from among the persons in the feeder category of Assistant Engineer. According to the petitioner, the Board has been promoting juniors with inferior qualification and the same is arbitrary and illegal and that the rule which enables the Board to do that violates his fundamental rights under Articles 14 and 16 of the Constitution of India. But, the point raised by the writ petitioner is covered against him by the judgment of the Division W.P.(C)NO.14828/2009 2 Bench in W.A. No.2936 of 2007 and connected cases. 2. The learned counsel for the writ petitioner submitted that the Board has adopted the Special Rules applicable to the Kerala Engineering Service by reference and, therefore, the amendments made to it from time to time will also apply. The Government have issued an order restraining promotion of junior diploma holders superseding senior degree holders in the Kerala Engineering Service. The validity of that order, which was attacked on the ground that Special Rules cannot be amended by executive orders has been upheld by the Division Bench of this Court and also by the Apex Court. The said order will also apply to the Board, it is submitted. 3. The learned Standing Counsel for the Board handed over the Board's order No. A.1.588/60 dated 30.3.1962 as per which the qualification and method of appointment prescribed by the Government to various posts in the Kerala Engineering Service has been adopted by the Board. We find that the said order does not specifically say about reference or adoption of the Special Rules applicable to the Kerala Engineering Service. According to the Board, the rules, as it stood in 1962, were adopted and those rules are followed. The Board has never W.P.(C)NO.14828/2009 3 followed the amendments introduced to the said Rules from time to time. 4. We notice that the Board has followed the Kerala Engineering Service Rules for the last 46 years, but without following the amendments introduced from time to time and there is no mention in the said order that the Rules adopted will be followed along with the amendments introduced from time to time. In the matter of promotion, the Board has been following the impugned practice consistently for the last several years. We feel that by upholding the interpretation of the learned counsel for the writ petitioner, it is not proper for us to tinker with that. Going by the Board's order dated 30.3.1962, mentioned above, we feel that the view taken by the Board is a plausible view. So, the new ground sought to be urged by the writ petitioner cannot be accepted. In the result, we follow the judgment in W.A. No.2936 of 2007 and connected cases and dismiss the Writ Petition. (K. BALAKRISHNAN NAIR) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.P.(C)NO.14828/2009 4 K.BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. W.P.(C) NO.14828/2009 JUDGMENT 10th June, 2009 W.P.(C)NO.14828/2009 5