IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 19TH MARCH 2009 / 28TH PHALGUNA 1930 WA.No. 674 of 2009() -------------------- (Against the judgment dt.10.2.2009 in W.P.(C) NO.30739/2006) ----------------------------- APPELLANT/PETITIONER ------------------- K.N.VIJAYAN, ASSISTANT EXECUTIVE ENGINEER, HARBOUR ENGINEERING DIVISION, MUNAMBAM, PALLIPORT P.O., ERNAKULAM DISTRICT. BY ADV. SRI.S.ABDUL RAZZAK RESPONDENTS/ RESPONDENTS -------------------------- 1. THE GOVERNMENT OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, HARBOUR ENGINEERING DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPARTMENTAL PROMOTION COMMITTEE, REPRESENTED BY ITS CONVENOR, HARBOUR ENGINEERING DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 3. THE CHIEF ENGINEER, HARBOUR ENGINEERING DEPARTMENT, KAMALESWARAM, MANACAUD P.O., THIRUVANANTHAPURAM. 4. SHRI.K.NARAYANAN, ASSISTANT EXECUTIVE ENGINEER, HARBOUR ENGINEERING DIVISION. ADV.SRI.S.RAMESH BABU FOR R4. GOVT.PLEADER, SRI.BENNY GERVASIS FOR R1 TO R3. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. ------------------------------ W.A.No.674 OF 2009 ------------------------------- Dated this the 19th day of March, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The appellant is the writ petitioner and respondents herein were the respondents in the writ petition. The brief facts of the case the following: 2. The appellant, who is a Diploma holder, was promoted to the cadre of Assistant Executive Engineer, provisionally, by order dated 15.9.1998. The 4th respondent, who is a Degree holder, was promoted to that cadre, provisionally, on 15.7.1995. Later, steps were taken to order regular promotion to that cadre from Degree and Diploma quotas. As per Ext.P5, amendment introduced to the Special Rules for Kerala Harbour Engineering Service, 5% of the total number of posts of Executive Engineer, subject to a minimum of one, is reserved to be filled up by Diploma holders. But, a Diploma holder cannot be given promotion superseding a Degree holder, who is senior to him in the cadre of Assistant W.A.No.674/2009 2 Executive Engineer. This stipulation is contained in Note 2, which is incorporated in the Special Rules as per Ext.P5. The said Note reads as follows: “Note 2: Five percentage of the total number of posts of Executive Engineer, subject to a minimum of one, shall be filled up by candidates possessing the qualifications under “Group B” against category 3, in the table under rule 4, in the matter of promotion to the category of Executive Engineer, subject to the condition that a senior Degree holder shall not be superseded by a Junior Diploma holder while applying the said percentage and in such a case that vacancy shall be filled up by a degree holder.” 3. As per Ext.P3, DPC list of Assistant Engineers eligible for promotion to the post of Assistant Executive Engineer, the appellant was included for promotion in the year 1995 from the Diploma quota. The 4th respondent was also included in the vacancy available in 1995 from the Degree quota. While Ext.P3 was remaining in force, apprehending that the 4th respondent may be promoted to the post of Executive Engineer in preference to the appellant, the writ petition was filed seeking the following reliefs: W.A.No.674/2009 3 “i) issue a writ of mandamus or other appropriate writ, direction or order directing the 1 st respondent to promote the petitioner under Rule 31 of the KS & SSR forthwith to Category 3 of The Kerala Harbour Engineering Service and to regularise that promotion in accordance with the rules against the first vacancy available after Ext.P5 amendment to the Special Rules; ii) declare that the 4 th respondent is not entitled to surpass the petitioner in the matter of regular promotion to Category 3 of the Service as he is junior to the petitioner in category 4 and as the rider to quota fixed in Ext.P5 is inconsistent with the quota rule; iii) issue such other writ, direction or order as this Hin'ble Court may deem fit and proper on the facts and in the circumstances of the case and to allow this Original Petition with the petitioner's costs.” 4. The 4th respondent filed a counter affidavit and along with that he has produced Ext.R4(3) DPC list, revising Ext.P3 concerning Degree holders among Assistant Engineers eligible for promotion as Assistant Executive Engineers. The 4th respondent has been included for promotion during the year 1993. Subsequently, the competent authority has published W.A.No.674/2009 4 Ext.R4(4) DPC list of eligible Assistant Executive Engineers for promotion to the post of Executive Engineer in the Degree quota. No list of Diploma holders eligible to be promoted in the 5% quota has been published along with R4(4). In view of Ext.R4(3) and R4(4), the 4th respondent submitted that he is entitled to be promoted to the post of Assistant Executive Engineer in 1993 whereas the appellant is entitled for promotion to that cadre only in the year 1995. As a result, the 4th respondent is senior in the feeder category and therefore, he cannot be superseded for promotion by a Diploma holder, who is junior to him. 5. The appellant met the above contention by pointing out that for promotion to the post of Executive Engineer, separate seniority lists of Assistant Executive Engineers for graduates and diploma holders should be prepared and published and from those separate lists, the promotions should be made to the respective quota. So, there is no question of any inter se seniority in the feeder category between the Diploma holders and Degree holders, it is submitted. The learned Single Judge after hearing both sides dismissed the writ petition. Hence, this writ appeal. W.A.No.674/2009 5 6. Sri.S.A.Razzak, the learned counsel for the appellant, reiterated before us, the point unsuccessfully canvassed before the learned Single Judge. The learned counsel submitted that going by the Special Rules, separate seniority lists of degree holders and diploma holders among Assistant Executive Engineers have to be prepared for considering their promotion to the post of Executive Engineer. Therefore, there cannot be any inter se seniority between them. At present, there is no diploma holder working as Executive Engineer. Going by the Rule, atleast one vacancy should be set apart for diploma holders. Therefore, the appellant should be considered for promotion, it is submitted. Going by the Note 2 introduced by Ext.P5 to the Special Rules for Kerala Harbour Engineering Service, a diploma holder Assistant Executive Engineer, cannot supersede a degree holder Assistant Executive Engineer, in the matter of promotion to the post of Executive Engineer, if the latter is senior to the former. The Assistant Executive Engineers form a homogeneous class. They discharge the same functions and duties. If a person with inferior qualification is preferred to a person with higher W.A.No.674/2009 6 qualification and senior in service, the same will be grossly arbitrary and unjust. When a ratio is fixed such things will happen. That is why, the implementation of ratio has been made subject to the proviso that a junior diploma holder shall not supersede a senior degree holder. Going by Ext.R4(3), the 4th respondent is entitled to be promoted to the feeder category in 1993, whereas, going by Ext.P3, the appellant is promoted to that category only in 1995. So, going by the materials on record, the 4th respondent, who is a degree holder, is senior in the feeder category. Therefore, he cannot be superseded by the appellant. Therefore, we find nothing wrong with the judgment of the learned Single Judge. In the result, the writ appeal fails and it is dismissed. (K.BALAKRISHNAN NAIR, JUDGE) (M.L.JOSEPH FRANCIS, JUDGE) ps