IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 31ST JULY 2009 / 9TH SRAVANA 1931 W.A.No. 973 of 2009() AGAINST THE JUDGMENT IN WPC.30143/2007 Dated 15/11/2007 APPELLANTS: 3RD PARTIES ------------------------------------ 1. M.S.SHAJI, ASST.ENGINEER, LSGD SECTION, MUNDAKAYAM, KOTTAYAM DISTRICT. 2. V.G.BALACHANDRAJI, ASST.ENGINEER, LSGD SECTION, PUTHUPPALLY, KOTTAYAM DISTRICT. 3. T.M.DINESH, ASST. ENGINEER, LSGD SECTION, ELOOR, ERNAKULAM DISTRICT. 4. PHILO.D.VARGHESE, ASST. ENGINEER, LSGD SECTION, KADUKUTTY, TRICHUR DISTRICT. BY ADV. SMT.S.KARTHIKA RESPONDENTS: 1. STATE OF KERALA, REP. BY ITS SECRETARY TO GOVERNMENT, LOCAL SELF GOVT. DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PANCHAYATHS, TRIVANDRUM. 3. M.K.ROY, ASST. ENGINEER, LSGD SECTION, ERUMAYOOR GRAMA PANCHAYATH, PALAKKAD DISTRICT. RESIDING AT MAPRANTHUKARAN HOUSE, MAVELI NAGAR P.O KURIYACHIRA, TRICHUR GOVERNMENT PLEADER SMT. R.BINDU-R1,R2 SRI.MILLU DANDAPANI - R3 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 31/07/2009, ALONG WITH WPC NO.12597 OF 2009, WPC NO.13685 OF 2009, WPC NO. 13784 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.P.(C) NOS.12597, 13685 & 13784 OF 2009 & W.A. NO. 973 OF 2009 --------------------------------------------- Dated this the 31st day of July, 2009 JUDGMENT Balakrishnan Nair, J. W.A. No.973 of 2009. The appellants were not parties to the Writ Petition. But, feeling aggrieved by the directions issued by the learned Single Judge, they have sought leave of this Court and filed this Writ Appeal. The dispute raised in this appeal is concerning the claim for promotion to the post of Assistant Engineer under the Panchayat Department. The appellants were appointed as Overseer Grade II between 1981 and 1992 in various Panchayats. They submitted that they were promoted to the post of Overseer Grade I between 1991 and 2001. Still later, they were promoted as Assistant Engineer between 11.7.2002 and 11.7.2003. Presently, the appellants are working in various Panchayats under the Local Self Government Department. W.A. No.973/2009 & Connected Cases. 2 2. Before going to the dispute raised for decision in this case, we will presently advert to the legal position obtained as per the rules, concerning appointment to the post of Assistant Engineer. Earlier, this post was called Junior Engineer and it was included in the Kerala Panchayats (Common Service) Rules, 1977. The method of appointment provided in the said Rules was promotion from Grade I Overseer or by direct recruitment, in the absence of qualified hands. While so, the Government framed the Kerala Panchayats Subordinate Service Rules, 1994, which were enforced with effect from 1.1.1990. The said Rules were issued as S.R.O. No. 868/94 in supersesssion of the Kerala Panchayats (Common Service) Rules, 1977 and other related rules. But, the newRules did not contain the post of Junior Engineer or its equivalent post of Assistant Engineer. Later, the Government issued Annexure-A2 Special Rules for the Kerala Panchayat Service in 2006 as per G.O.(P) No. 47/2006/LSGD which came into force with effect from 3.2.2006. The said Special Rules contained provisions relating to the qualifications and method of appointment to the post of Assistant Engineer. The method of appointment was by direct recruitment and appointment by transfer from the category of First Grade Overseer in the Kerala Panchayats W.A. No.973/2009 & Connected Cases. 3 Subordinate Service in the ratio of 6:4. 40 % of the vacancies reserved for appointment by transfer were to be filled up in the ratio of 6:3:1 between Graduates, Diploma holders and Certificate holders in the feeder category of Overseer Grade I. Later, the Government amended the Special Rules for the Kerala Panchayat Service Rules, 2006 with effect from 1.1.2008 whereby the category of Assistant Engineer was deleted from the said Rules. The said amendment was introduced as per G.O.(P) No.273/07/LSGD dated 27.11.2007 with effect from 1.1.2008. Simultaneously, the Government issued Special Rules for the Kerala Local Self Government Engineering Service, 2007 with effect from 1.1.2008 in which the post of Assistant Engineer was included as Category No.V and the method of appointment was by direct recruitment and appointment by transfer from First Grade Overseer in the ratio of 6:4. 40% of the vacancies reserved to be filled up by transfer was to be filled up in the ratio of 3:1 from among the Diploma holders and Certificate holders. 3. In view of the position in the rules, we notice that between 1.1.1990 and 3.2.2006, there was no rule in force with respect to the qualification and method of appointment to the post of Junior Engineer/Assistant Engineer. If that be so, the vacancy in that post could W.A. No.973/2009 & Connected Cases. 4 have been filled up only under Rule 9(a)(i) of the General Rules. So, the promotion of the appellants to the post of Assistant Engineer was obviously provisional promotion. 4. W.P.(C) No. 30143 of 2007 was filed by the third respondent herein. The third respondent moved the Government for promotion as Assistant Engineer. Pursuant to the direction of this Court, the Government passed Ext.P4 order dated 30.6.2007. Certain directions were issued by the Government concerning the filling up of the post of Assistant Engineer. The third respondent again approached this Court by filing the present Writ Petition praying for promotion in the graduate quota. The said Writ Petition was disposed of by the learned Single Judge directing the Government to consider his claim for promotion, which he may raise by filing a representation. It was also ordered that his claim shall be concerning the vacancies that have arisen after the issuance of Ext.P4 order dated 30.6.2007. In view of that legal position, which we have noted above, governing appointment to the post of Assistant Engineer, we are of the view that the claim of the various incumbents including the appellants and the third respondent herein will have to be considered afresh. W.A. No.973/2009 & Connected Cases. 5 5. Therefore, we feel that the direction issued by the learned Single Judge cannot be sustained. We order that the claim of the writ petitioner/respondent No.3 herein and that of the appellants and other similarly placed persons for regular promotion to the post of Assistant Engineer shall be considered by the Government in terms of Annexure -A2 Rules dated 3.2.2006, within four months from the date of receipt/production of a copy of this judgment. If anyone is found to have been promoted in excess of their quota, they are liable to be reverted. Till such a review is completed, the appellants herein need not be reverted, pending review. 6. The Writ Appeal is disposed of as above. The above direction will govern the filling up of vacancies which were available on 3.2.2006 and which arose between 3.2.2006 and 31.12.2007. W.P.(C) Nos.12597 & 13784 of 2009. 7. It is ordered that the direction issued by us in W.A. No. 973 of 2009 will govern the case of the writ petitioners herein also, notwithstanding any order passed by the Government to the contrary W.A. No.973/2009 & Connected Cases. 6 earlier. W.P.(C) No.13685 of 2009. 8. The writ petitioner herein was already promoted by Ext.P6 order dated 28.1.2008 by the Director of Panchayats, Thiruvananthapuram. Later, the Government issued Ext.P9 communication to the Director of Panchayats on 31.3.2009 to cancel Ext.P6 order, for the reason that the Director of Panchayats has no authority to order promotion to the post of Assistant Engineer from 1.1.2008. We have ordered to review all the promotions to the post of Assistant Engineer, as per our judgment rendered today in W.A. No.973 of 2009. We order that the directions issued in that case will govern the writ petitioner herein also. Until the review is finalised, the petitioner shall be retained in the post of Assistant Engineer. (K. BALAKRISHNAN NAIR) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.A. No.973/2009 & Connected Cases. 7 K.BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. W.P.(C)NOS.12597,13685 & 13784/09 & W.A. NO.973/09 JUDGMENT 31st July, 2009 W.A. No.973/2009 & Connected Cases. 8