IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 10TH FEBRUARY 2009 / 21ST MAGHA 1930 WP(C).No. 30739 of 2006(H) ------------------------------------------ PETITIONER(S): ------------------------ K.N.VIJAYAN, ASSISTANT EXECUTIVE ENGINEER, HARBOR ENGINEERING DIVISION, MUNAMBAM, PALLIPORT P.O., ERNAKULAM DISTRICT. BY ADV.MR.S.ABDUL RAZZAK RESPONDENT(S): ------------------------- 1. THE GOVERNMENT OF KERALA, REP. BY SECRETARY TO GOVERNMENT, HARBOUR ENGINEERING DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPARTMENTAL PROMOTION COMMITTEE, REP. BY ITS CONVENOR, HARBOUR ENGINEERING DEPT., GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 3. THE CHIEF ENGINEER, HARBOUR ENGINEERING DEPARTMENT, KAMALESWARAM,, MANACAUD P.O., THIRUVANANTHAPURAM. 4. SHRI.K.NARAYANAN, ASSISTANT EXECUTIVE ENGINEER, HARBOR ENGINEERING SUB DIVISION, PONNANI. R1 BY GOVERNMENT PLEADER SMT.ANU SIVARAMAN R4 BY ADV. MR.S.RAMESH BABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/01/2009, THE COURT ON 10/02/2009 DELIVERED THE FOLLOWING: W.P.(C) NO.30739/2006 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE G.O.(RT) NO.139/95/F&PD DT. 18.3.95. P2:- COPY OF THE G.O.9RT) NO.381/98/F&PD DT. 15.9.98. P3:- COPY OF THE NOTIFICATION NO.12480/D2/98/F&PD DT. 10.2.99 SELECT LIST. P4:- COPY OF THE G.O.9RT0 NO.265/95/F&PD DT. 15.7.95. P5:- COPY OF THE G.O.(P) NO.17/2006/F&PD DT. 15.6.06. P6:- COPY OF THE PETITIONER'S REPRESENTATION DT. 20.10.06. RESPONDENT'S EXHIBITS R4(1):- COPY OF THE G.O.(RT) NO.3/94/F. & PD DT. 4.1.94. R4(2):- COPY OF THE JUDGMENT DT. 20.10.97 IN OP. NO.3440/95. R4(3):- COPY OF THE G.O.(P) NO.30/05/F&PD DT. 25.8.05. R4(4):- COPY OF THE EXTRAORDINARY GAZETTE NO.1620 DT. 12.10.06. /TRUE COPY/ P.A. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 30739 of 2006-H - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of February, 2009. JUDGMENT The issue raised herein is the interpretation of Note 2 to Rule 2 of the Kerala Harbour Engineering Service (Civil Branch) Amendment Rules, 2006 issued as Ext.P5. The claim is for promotion to the post of Executive Engineer under the Harbour Engineering Department. The petitioner, a diploma holder is claiming promotion on the basis of seniority and under the quota ear-marked for diploma holders. The 4th respondent is a degree holder who is claiming the same based on his promotion earlier than the petitioner to the post of Asst. Executive Engineer which is the feeder category for promotion as Executive Engineer. The particulars in respect of the petitioner and the fourth respondent are given below: 2. The case of the petitioner is that he is the senior most in the category of Asst. Executive Engineer among diploma holders. Seven posts of Asst. Executive Engineer © were sanctioned to the department as per G.O.(MS) 9/95/F&PD dated 7.2.1995. Applying the ratio of 3 : 1 between the degree and diploma holders two vacancies were earmarked for promotion from the diploma quota. Proposal was submitted by the Chief Wpc 30739/2006 2 Engineer, Harbour Engineering Department to Government recommending the petitioner and another, viz. Shri A. Krishnan for promotion to the post of Asst. Executive Engineer. This was challenged by one Shri V. Haridasan, a certificate holder who acquired diploma in Civil Engineering with effect from 24.9.1985 and a specific claim was raised against the petitioner. His claim was rejected by the Government which was challenged in O.P.No.3440/1995 by Shri V. Haridasan. The said original petition was disposed of by Ext.R4(2) judgment. The petitioner was the third respondent therein and the Original Petition was disposed of in the light of the submission made by the petitioner that he has no objection in granting the prayer of the petitioner therein as there are two vacancies. 3. The petitioner was thus promoted as per Ext.P2 order dated 15.9.1998. By that time there were 3 vacancies of Assistant Executive Engineers under diploma quota. All the above details are reiterated in Ext.P2. There was another writ petition also filed by Shri K.Unnikrishnan Nair and Shri K. Mohanakumar, viz. O.P.No.19944/1997. The judgment in that case was ultimately challenged in Writ Appeal No.1155/1998. 4. Ext.P3 is the select list published on 10.2.1999 wherein the petitioner is assigned the year 1995 and the 4th respondent is also assigned the year 1995 from among degree holders. The 4th respondent has obtained Wpc 30739/2006 3 a promotion to the post of Asst. Executive Engineer as per Ext.P4 order dated 15.7.1995. The petitioner is claiming further promotion to the post of Executive Engineer based on his seniority in the cadre of Asst. Executive Engineer. 5. The case pleaded by the 4th respondent in his counter affidavit shows the following: There was a challenge in respect of the Special Rules issued as per S.R.O.No.75/1983 providing promotion of diploma holders to the category of Asst. Executive Engineers. Shri K. Raghavan Nair, Shri P.G. Narayanankutty and Shri P. Padmanabhan acquired degree while in service. They filed O.P.Nos.6738/1987, 2172/1989 and 2180/1989 which were allowed by judgment dated 30.9.199. The Writ Appeals filed from the same were dismissed by a Full Bench of this court as per common judgment dated 2.11.1998. Ultimately, the Supreme Court considered the issue in Civil Appeal Nos.885 to 888 and 890 to 893 of 2002. The judgment is reported in Chandravathi v. Saji (2004 (2) KLT 320 SC). While the matter was pending, all the three petitioners were promoted as Asst. Executive Engineers as per order dated 4.1.1994. The 4th respondent was promoted as Asst. Executive Engineer as per order dated 15.7.1995 and the petitioner was promoted as per Ext.P3 order dated 15.9.1998. All these were temporary promotions. The Special Rules were later substituted by Wpc 30739/2006 4 S.R.O.Nos.183 and 184 notified on 4.2.1995. As far as the petitioner is concerned, the promotion was delayed in view of the pendency of various writ petitions. After the decision of the Apex Court in Chandravathi's case (2004 (2) KLT 320), the select list of Assistant Executive Engineer/Executive Engineer (Ext.P3) were revised and Ext.R4(3) is the same whereby the 4th respondent was assigned a vacancy which arose in the year 1993. The same was under challenge in a writ petition filed by one Shri P.K. Anilkumar and against the judgment in the said case, a writ appeal is pending now. The DPC had prepared the select list for the year 2006 for promotion to the cadre of Executive Engineers and the list is produced as Ext.R4(4). The 4th respondent is included therein. It is pointed out that neither Ext.R4(3) nor Ext.R4(4) are under challenge in this writ petition and no statutory representations have been filed by the petitioner. It is also pointed out that since the petitioner conceded his seniority in the matter of promotion to the post of Asst. Executive Engineer while disposing of O.P.No.3440/1995, his claim for seniority from the year 1995 cannot be acceded and even if that claim could be accepted in view of Ext.R4(3) select list wherein the 4th respondent is assigned a vacancy for the year 1993, the petitioner cannot claim seniority over the 4th respondent. It is pointed out that as the matters are pending before this court in the other writ petition Wpc 30739/2006 5 filed by Shri Anilkumar, the question of filling up the post of Executive Engineer does not arise now and therefore the claim raised by the petitioner for promotion as Asst. Executive Engineer cannot be acceded to by the department as of now. 6. Note 2 to sub-rule 2 of the amended rules have been produced as Ext.P5 which 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.” The petitioner mainly raised two arguments on the interpretation of the above Note. It is submitted that the seniority in the cadre of Asst. Engineer should be counted since there is no separate seniority list as far as the cadre of Asst. Executive Engineers are concerned. There is no common seniority list also. Relying upon Rule 5 and Note (3) of K.S. & S.S.R., it is pointed out that the cadre strength has to be considered for adopting the principles covered by the Note. 7. The first question is whether it is the seniority in the cadre of Asst. Wpc 30739/2006 6 Engineer or seniority in the cadre of Asst. Executive Engineer that has to be reckoned for consideration for promotion to the post of Executive Engineer. The meaning of the word “promotion” in Rule 2 of Part I of the K.S. & S.S.R. is as follows: “Promotion means the appointment of a member of any category or grade of a service or a class of service to a higher category or grade of such service or class.” Therefore, the word “promotion” would indicate that it is the appointment from lower cadre to the higher cadre. As far as the post of Executive Engineer is concerned, the lower cadre is Asst. Executive Engineer. The Note shows the following: “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...............” Therefore, what is envisaged is an appointment by promotion and therefore going by the term “promotion” in the definition of K.S. & S.S.R., it can have only one meaning, i.e. appointment from lower cadre. If that be so, the seniority in the cadre of Asst. Executive Engineer and not in the cadre of Asst. Engineer that has to be reckoned for the purpose of applying the percentage. In that view of the matter, the absence of a common seniority list cannot be of any consequence. It is not difficult to find out the details regarding a senior Degree holder and a junior Diploma holder occupying the post of Wpc 30739/2006 7 Asst. Executive Engineer. Therefore, when the plain meaning of the Note is thus understood, there cannot be any difficulty to apply the effect of the latter portion of the Note. In that view of the matter, I reject the contention of the learned counsel for the petitioner. 8. Learned counsel further relied upon various decisions of the Apex Court in to contend that the provision has to be read down. In the light of the view I have taken, it is not necessary to employ the concept of reading down the statute here. There is no unworkability also as far as the effect of the Note is concerned. 9. The next argument raised by the learned counsel for the petitioner is that as far as his client is concerned, he was due for promotion to one of the vacancies sanctioned as on 7.2.1995 and therefore the petitioner is entitled to count his seniority from that date. But in the light of the fact that in the earlier judgment rendered by this court evidenced by Ext.R4(2), the petitioner had conceded the claim for seniority in favour of the petitioner therein, viz. Shri V. Haridasan, he cannot have any claim to the first vacancy. Even though learned counsel for the petitioner attempted to explain that Ext.R4(2) will not defeat his right, in the absence of any decision therein conferring seniority on the petitioner, the matter could only be considered in that manner alone. Wpc 30739/2006 8 10. Admittedly, the petitioner was promoted only by Ext.P2 order dated 15.9.1998, whereas the 4th respondent was promoted prior to that date, viz. 15.7.1995. The select list, Ext.P3 was revised by Ext.R4(3). The 4th respondent is included in the select list for the year 1993 for promotion to the post of Asst. Executive Engineer from degree holders. He is also included in the select list for the post of Executive Engineer as per Ext.R4 (4). It is not in dispute that the petitioner has not raised any objection to the said select list and no statutory representations have been filed also. Exts.R4(3) and R4(4) are not under challenge in this writ petition. Of course, learned counsel for the petitioner submitted that if his argument is accepted, it is the seniority in the cadre of Asst. Engineer that has to be considered and the mere fact that he has not challenged Exts.R4(3) and R4 (4) are immaterial. But in the view I have taken regarding the interpretation of Note 2, the seniority in the cadre of Asst. Executive Engineer alone has to be taken. If that be so, going by the length of service in the said post, the 4th respondent is senior in the cadre of Asst. Executive Engineer. Therefore, the petitioner cannot get promotion as Executive Engineer by the application of Note 2, since a senior Degree holder cannot be superseded by a junior Diploma holder. 11. Learned counsel appearing for the 4th respondent cited the Wpc 30739/2006 9 decisions of this court in Kerala Irrigation Engineers Association v. State of Kerala (2003 (3) KLT 325) and Velappan v. State of Kerala (2007 (3) KLT 283) in support of the argument that it is not the seniority in the cadre of Asst. Engineer that has to be counted, but seniority in the cadre of Asst. Executive Engineer alone. The questions considered in the above two decisions are slightly different. 12. Learned Govt. Pleader submitted that the 4th respondent had obtained a promotion earlier than the petitioner in the cadre of Asst. Executive Engineer, i.e. on 15.7.1995 and the petitioner could obtain a promotion only by the order date 15.9.1998. If that be so, the petitioner cannot claim seniority in the cadre of Asst. Executive Engineer. In the light of the above position, the petitioner is not entitled for any reliefs. The writ petition is dismissed. No costs. (T.R. Ramachandran Nair, Judge.) kav/