IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 4TH MARCH 2009 / 13TH PHALGUNA 1930 WP(C).No. 19951 of 2006(A) ---------------------------------------- PETITIONER(S): ---------------------- 1. A.PURUSHAN, ASSISTANT EXECUTIVE ENGINEER, OFFICE OF THE CHIEF ENGINEER, CENTRAL REGION, KERALA WATER AUTHORITY, KOCHI-682 011. 2. T.K.MONEY, ASSISTANT EXECUTIVE ENGINEER WATER WORKS SUB DIVISION, KERALA WATER AUTHORITY, KOTTAYAM. BY MR.N.N.SUGUNAPALAN, SENIOR ADVOCATE BY ADV. MR. SUJIN RESPONDENT(S): ------------------------ 1. THE MANAGING DIRECTOR, KERALA WATER AUTHORITY, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER (HRD & GL), KERALA WATER AUTHORITY, THIRUVANANTHAPURAM. 3. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. ADV. MR.J.KRISHNA KUMAR, SC, KWA FOR R1,R2 MR. BABU VARGHESE, SC, KWA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/02/2009, ALONG WITH WPC NO. 20038 OF 2006 THE COURT ON 04/03/2009 THE SAME DAY DELIVERED THE FOLLOWING: T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos.19951/2006-A & 20038/2006-I - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of March, 2009. JUDGMENT The petitioners are aggrieved by the assignment of seniority granted to them in the cadre of Assistant Executive Engineer. Apparently, they seek to restore their seniority in the cadre of Assistant Engineer in the degree quota from the respective dates of their appointment. 2. As per the recruitment rules framed for the post of Assistant Engineer, the prescribed qualification is Degree in Engineering. The petitioners were appointed under the scheme for recruitment under Rule 17A of KS & SSR to provide opportunity for SC/ST candidates. As per G.O.(P) No.185/83/LA & SWD dated 3.11.1983, Diploma holders were recruited in the absence of sufficient number of Degree holders. One year's training was also insisted at the time of appointment by issuing specific orders to that effect. 3. The first petitioner in Writ Petition No.19951/2006 obtained Degree in Engineering in June 1999 and he was later promoted as Assistant Executive Engineer on 18.11.1999 in Diploma quota. The second W.P.(C) Nos. 19951/06 & 20038/06 2 petitioner herein acquired Degree in October 1990 and was promoted as Assistant Executive Engineer on 16.10.1999 in the Degree quota. the petitioner in Writ Petition No.20038/2006 was recruited in the year 1986 under Rule 17A of KS & SSR. He acquired degree in the year 1996. 4. As per the relevant recruitment rules, the post of Assistant Engineers is filled up from three different categories, viz. (i) direct recruitment from Degree holders; (ii) promotion from Diploma holders; and (iii) promotion from Certificate holders. Between categories (i) and (ii), there is a ratio of 6 : 4 and between Diploma holders and Certificate holders, the ratio is 3 : 1. 5. After the promotions of the petitioners were effected, seniority was not given to them based on their dates of appointment. There were various writ petitions before this court like O.P.No.10303/1999 filed by the second petitioner in Writ Petition No.19951/2006 and O.P.No.10484/1997 filed by the petitioner in Writ Petition No.20038/2006. O.P.No.10484/1997 and connected cases were disposed of by a Full Bench of this court. The Full Bench took the view that the service rendered by the petitioner as Diploma holder before he acquires the Degree is to be tagged on with the service rendered as degree holder for the purpose of fixing the seniority. The matter was considered by the Apex Court in Civil Appeal No.884/2002 W.P.(C) Nos. 19951/06 & 20038/06 3 and the judgment in the said case is produced as Exts.P2 and P3 in the respective writ petitions. The Hon'ble Supreme Court held that those Diploma holders who acquire Degree after joining service, is placed in the bottom of the seniority list of Degree holder quota after acquisition of the degree. 6. Later, by order dated 15.2.2006, their rank in the seniority list of Assistant Executive Engineer was refixed in implementation of the directions of the Hon'ble Supreme Court. 7. Presently, the petitioners seek to raise another contention which, according to them, was not raised before the Apex Court in the earlier case. The contention raised is in the following terms: The petitioners were selected in 1986 under the Special Recruitment Scheme invoking Rule 17A of KS & SSR. They were inducted as Assistant Engineers, even though they were not having any Degree, in relaxation of the Rules. They were given an additional training of one year to compensate the deficiency in the equivalent qualification. Therefore, they contend for the position that they are entitled to be treated as Degree holders and should have been granted all benefits as Degree holders including promotion. The order passed by the Kerala Water Authority on the representation made by the petitioner in Writ Petition No.20038/2006, produced as Exts.P5 and P8 respectively in the W.P.(C) Nos. 19951/06 & 20038/06 4 writ petitions, finds that since there is no provision for altering the 'birth – marks' in the earlier service, he will have to wait till attainment of seniority in the degree quota for further promotions. This observation is relied upon to contend that the nature of the appointment at the entry point of time should be considered and if that be so, they should be considered to have been recruited in the degree quota and accordingly their seniority should be re-fixed. 8. It is further pointed out that once special recruitment is made, that would be outside the existing quota and therefore once they have been appointed after relaxing the rules, they should be treated as Degree holders. Accordingly, it is contended that they are entitled to get the benefit of seniority and promotion along with Degree holders. 9. In the counter affidavit, the stand taken is that the petitioners were having only diploma at the time of appointment and they acquired degree only later. It is true that they were appointed under the Special Recruitment Scheme. They were never treated at par with qualified Degree holders. It is pointed out that the seniority has been fixed as per the decision of the Apex Court in the batch of cases. A clarification issued by the Government dated 14.5.1998 is also relied upon to contend that the petitioners cannot be considered under the Degree quota for promotion as Assistant Executive W.P.(C) Nos. 19951/06 & 20038/06 5 Engineers. 10. Learned Senior Counsel appearing for the petitioners, Shri N.N. Sugunapalan contended that the situation to which the petitioners are placed, is an anomalous one. They were recruited as Assistant Engineers in relaxation of the rules under the Special Recruitment Scheme. It is not a case where they were appointed after applying the ratio fixed in the relevant rules. It is therefore submitted that once they have undergone the training, they should be treated at par with Degree holders and their seniority should be assigned as such. It is submitted that this is a matter which should be considered by the Government itself rather than by the Water Authority. Learned Senior Counsel therefore prays for a direction to the Government to consider the matter and take appropriate decision. 11. The issue has to be considered in accordance with the relevant Government orders and rules prevalent in that regard. The questions posed by the petitioners are peculiar to the facts narrated above. Whether they should be granted any particular benefit based on their selection under Rule 17A of KS & SSR or they can be granted seniority only in accordance with the position they have acquired after acquisition of the Degree qualification, is the matter to be considered. It is not seen that the authorities have considered the issue in the light of the above contentions. Presently their W.P.(C) Nos. 19951/06 & 20038/06 6 seniority position has been settled in implementation of the judgment of the Apex Court which binds them. 12. Therefore, the writ petitions are disposed of in the following terms: The petitioners are given an opportunity to file appropriate representations in the matter before the Government which shall be filed within a period of one month from today. The legal issues arising therein will be considered by the Government after assessing various facts as well as the decisions of this court and that of the Apex Court. The petitioners and all other affected parties including seniors in the seniority list as well as the Kerala Water Authority, will be offered a hearing in the matter. Appropriate orders shall be passed within a period of six months thereafter. The writ petitions are disposed of accordingly. No costs. (T.R. Ramachandran Nair, Judge.) kav/