IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA 1931 WP(C).No. 17322 of 2008(K) --------------------------------------- PETITIONERS: --------------------- 1. MAJU BALAKRISHNAN, S/O. THE LATE M.P. BALAKRISHNAN,AGED 44 YEARS, ASSISTANT EXECUTIVE ENGINEER, IRRIGATION NORTH SUB DIVISION, MAJOR IRRIGATION, TRIVANDRUM, RESIDING AT T.C 1/1238, ASWATHY, POONTHI ROAD, KUMARAPURAM, TRIVANDRUM – 695 011. 2. MANOJ.K.N, S/O. K.R. NARAYANAN, AGED 44, ASSISTANT EXECUTIVE ENGINEER, MINOR IRRIGATION SUB DIVISION, NEYYATINKARA, TRIVANDRUM, RESIDING AT HOUSE NO.12, KANDANGATH, SANTHI NAGAR, NEAR GOVT. PRESS, TRIVANDRUM – 695 001. 3. K.P. HARAN BABU, S/O. K. PARAMESWARAN NAIR, AGED 44 YEARS, ASST. EXECUTIVE ENGINEER, IRRIGATION SUB DIVISION, ERNKULAM, RESIDING AT INDEEVARAM, GNRA-37, PAZHAVEEDU.P.O, ALAPPUZHA – 688 009. 4. SAJU.S, S/O. LATE R. SASIDHARAN, AGED 44 YEARS, ASSISTANT EXECUTIVE ENGINEER, CHANNEL SUB DIVISION, NEYYATINKARA, TRIVANDRUM, RESIDING AT NANDANAM, T.C 2/1943(3), PATTAM, TRIVANDRUM – 695 004. 5. EMILY.V.D, D/O. SRI. V.P.DEVASSIKUTTY, AGED 44 YEARS, ASSISTANT EXECUTIVE ENGINEER, OFFICE OF THE DEPUTY DIRECTOR, COASTAL ENGINEERING SUB DIVISION, ERNAKULAM, RESIDING AT MULLAPPARAMBIL HOUSE, AISWARYA NAGAR, KUSUMAGIRI.P.O, KAKKANAD, ERNAKULAM DISTRICT. BY MR. O.V.RADHAKRISHNAN, SENIOR ADVOCATE, ADVS. SMT.K.RADHAMANI AMMA, MR.ANTONY MUKKATH, MR.K.V.JOY. W.P.(C). NO.17322/2008-K: RESPONDENTS: ----------------------- 1. STATE OF KERALA, REP. BY ITS CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM. 2. PRINCIPAL SECRETARY TO GOVERNMENT, WATER RESOURCES (A) DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. 3. PRINCIPAL SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT ANNEX, TRIVANDRUM. 4. CHIEF ENGINEER, IRRIGATION AND ADMINISTRATION, TRIVANDRUM. 5. SUJA MATHEW, ASSISTANT EXECUTIVE ENGINEER, OFFICE OF THE DEPUTY DIRECTOR, CME DIVISION, KERALA ENGINEERING RESEARCH INSTITUTE, PEECHI. 6. M. VIJAYAKUMARI, ASSISTANT EXECUTIVE ENGINEER, CHALIYAR PROJECT INVESTIGATION SUB DIVISON-I, NILAMBUR. *ADDL.R7. JOY ASOK, AGED 45, S/O. ASOMAN, ROHINI, PULLICHIRA, KOLLAM DISTRICT. *ADDL.R7. IS IMPLEADED AS PER ORDER DATED 31/03/2009 IN I.A. NO. 2431/2009. R1 TO R4 BY GOVT. PLEADER MR. P. NANDAKUMAR. R5 & R6 BY ADVS. MR.DENIZEN KOMATH, MR.SHERRY J. THOMAS, ADDL.R7. BY ADV. MR. G. SREEKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/03/2009, ALONG WITH W.P.(C). NO. 27427/2008 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.17322/2008-K: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER NO. ADI(2)16951/92 DTD. 28/05/1993 OF THE R.4. APPOINTING THE P.3. AS ASSISTANT ENGINEER (CIVIL). EXT.P.2: COPY OF THE SELECT LIST PUBLISHED IN THE KERALA GAZETTE EXTRA ORDINARY-NOTIFICATION NO. 25892/A1/02/WRD DTD. 21/01/2003 OF THE R.2. EXT.P.3: COPY OF THE G.O.(RT).NO.1058/05/WRD DTD. 19/09/2005 OF THE R.2. EXT.P.4: COPY OF THE NOTIFICATION NO.4969/A1/06/WRD-SELECT LIST DTD. 08/08/2006 OF THE R.2. EXT.P.5: COPY OF THE G.O.(RT).NO.1049/06/WRD DTD. 11/09/2006 OF THE R.2. EXT.P.6: COPY OF THE G.O.(RT).NO.1574/07/WRD DTD. 18/12/2007 OF THE R.2. EXT.P.7: COPY OF THE G.O.(MS).NO.150/65/PW DTD. 17/05/1965 KERALA ENGINEERING SERVICE RULES. EXT.P.8: COPY OF THE SENIORITY LIST OF ASSISTANT EXECUTIVE ENGINEER AS ON 31/12/2007 PUBLISHED AS PER ORDER NO. A2/29940/2005 DTD. 18/02/2008 OF THE CHIEF ENGINEER (I & A). EXT.P.9: COPY OF THE G.O.(MS).NO.269/2003/LSGD DTD. 05/09/2003 OF THE R.3. EXT.P.10: COPY OF THE G.O.(MS).NO.253/2007/LSGD DTD. 13/11/2007 OF THE R.3. EXT.P.11: COPY OF THE NOTIFICATION NO. G.O.(P).NO.271/2007/LSGD DTD. 27/11/2007 SPECIAL RULES FOR THE KERALA LOCAL SELF-GOVERNMENT ENGINEERING SERVICE 2007. EXT.P.12: COPY OF THE LETTER NO. A2/5833/2007 (1) DTD 21/02/2007 ISSUED FROM THE OFFICE OF THE CHIEF ENGINEER, IRRIGATION DEPARTMENT. EXT.P.13: COPY OF THE G.O.(RT).NO.3426/07/LSGD DTD. 13/12/2007 ALONGWITH THE FORM OF OPTION OF THE R.3. EXT.P.14: COPY OF THE CIRCULAR NO. C2-5340/2006 DTD. 31/12/2007 OF THE R.4. EXT.P.15: COPY OF THE LIST OF THE OPTEES OF ASSISTANT EXECUTIVE ENGINEER DEPLOYED TO LSGD. EXT.P.16: COPY OF THE OPTION SUMMARY EMPLOYEES DEPLOYED FROM IRRIGATION DEPARTMENT. EXT.P.17: COPY OF THE LETTER NO. C2/5340/2006 DTD. 08/01/2008 ALONGWITH THE PROFORMA OF THE CHIEF ENGINEER TO THE R.3. EXT.P.18: COPY OF THE G.O.(MS).NO.94/08/LSGD DTD. 27/03/2008 ALONGWITH ANNEXURES (1) AND (2). EXT.P.19: COPY OF THE LETTER NO. C2/5340/2006 DTD. 16/05/2008 OF THE CHIEF ENGINEER TO THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT. W.P.(C). NO.17322/2008-K: EXT.P.20: COPY OF THE LIST OF JUNIORMOST ASSISTANT EXECUTIVE ENGINEER (UNDER DEGREE QUOTA) TO BE DEPLOYMENT TO LSGD. EXT.P.21: COPY OF THE CIRCULAR DTD. 01/07/2006 OF THE CHIEF ENGINEER, PWD ADMINISTRATION, THIRUVANANTHAPURAM. EXT.P.22: COPY OF THE NOTIFICATION NO. 33518/A1/06/WRD DTD. 07/05/2007 SELECT LIST OF ASSISTANT ENGINEERS UNDER DEGREE QUOTA FOR THE YEAR 2007 FOR PROMOTION TO THE CATEGORY OF ASSISTANT EXECUTIVE ENGINEER OF THE R.2. EXT.P.23: COPY OF THE G.O.(RT).NO.03/2008/WRD DTD. 01/01/2008 OF THE DEPUTY SECRETARY TO GOVERNMENT. EXT.P.24: COPY OF THE G.O.(RT).NO.381/2008/WRD DTD. 04/04/2008 OF THE DEPUTY SECRETARY TO GOVERNMENT. EXT.P.25: COPY OF THE G.O.(RT).NO.250/2008/WRD DTD. 25/02/2008 OF THE DEPUTY SECRETARY TO GOVERNMENT. EXT.P.26: COPY OF THE JUDGMENT DTD. 01/11/2006 IN W.P.(C).NO.27781/2006 OF THE HONOURABLE HIGH COURT OF KERALA. EXT.P.27: COPY OF THE G.O.(RT).NO.576/07/WRD DTD. 26/04/2007 OF THE DEPUTY SECRETARY TO GOVERNMENT. EXT.P.28: COPY OF THE G.O.(RT).NO.868/2007/WRD DTD. 26/06/2007 OF THE DEPUTY SECRETARY TO GOVERNMENT. EXT.P.29: COPY OF THE G.O.(RT).NO.972/07/WRD DTD. 19/07/2007 OF THE DEPUTY SECRETARY TO GOVERNMENT. EXT.P.30: COPY OF THE G.O.(RT).NL.653/2007/WRD DTD. 15/05/2007 OF THE DEPUTY SECRETARY TO GOVERNMENT. EXT.P.31: COPY OF THE LETTER NO. A2-5833/2007 DTD. 24/06/2008 OF THE R.4. RESPONDENTS' EXHIBITS: EXT.R3.A: COPY OF THE EXTRACT OF THE REPORT ON THE COMMITTEE ON DECENTRALISATION OF POWERS. EXT.R3.B: COPY OF THE EXTRACT OF PRINCIPLES ADOPTED BY THE COMMITTEE TO DECIDE THE NUMBER OF STAFF TO BE REDEPLOYED. EXT.R5.A: COPY OF THE GOVERNMENT ORDER DTD. 29/01/2003 OF THE LOCAL SELF GOVERNMENT DEPARTMENT. EXT.R5.B: COPY OF THE ORDER OF THE R.4. VIDE ORDER NO. A3/28585/05 DTD. 25/09/2006. EXT.R5.C: COPY OF THE G.O.(RT).580/2008/WRD DTD. 09/06/08. //TRUE COPY// P.S. TO JUDGE. Prv. K.BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- W.P.(C) NOS. 12175, 14560, 17322, 17903, 20685, 23174, 23556, 24080, 24149, 24320, 24326, 24360, 24659, 24724, 24862, 25240, 25814, 25865, 26111, 26161, 26641, 26833, 27236, 27402, 27427, 27468, 27528, 28347, 28409. 28598, 28957, 29133, 29143, 30782, 33297, 34218, 34305, 34485, 34504, 34687, 35284, 35352, 35429, 35642, 35874, 36010, 36095, 36135, 36183, 36361, 36368, 36589, 36770, 36877, 36918, 36990, 37042, 37087, 37210, 37286, 37493, 38006/2008 AND 490, 569 & 787/2009 ----------------------------------------- Dated 31st March, 2009. JUDGMENT Balakrishnan Nair, J. These Writ Petitions are filed by the Engineering staff of the Public Works Department (P.W.D.) and Water Resources Department (Irrigation Department), challenging their absorption in the newly formed Engineering Wing of the Local Self Government Department (L.S.G.D.). In some cases, the newly promulgated Special Rules for Local Self Government Engineering Service, 2007 are also under challenge. The persons to be WPC 17322/2008 etc.. 2 absorbed in the newly formed service are to be identified with reference to the cut off date 1.1.2008, which is the date on which the above mentioned Special Rules came into force. In some of the Writ Petitions, the fixation of that cut off date is also under challenge. In most of the other Writ Petitions, mainly, individual grievances regarding absorption are highlighted. In some cases, it is pointed out that juniors are being retained and seniors are deployed. In certain other cases, it is contended that even seniors, who have opted for deployment, are spared and juniors, who did not opt, are being compulsorily sent to the new Department. W.P.(C) No.17322/2008: 2. This Writ Petition is treated as the main Writ Petition challenging the Special Rules, for the purpose of referring to the exhibits. The petitioners in this case are Assistant Executive Engineers. They are being absorbed in the Kerala Local Self Government Engineering Service, treating them as surplus staff in the Irrigation Department, as per Exts.P9, P13, P17, P19 and P20 orders/communications. They also challenge clauses (iv) and (v) of Rule 2(2) of Ext.P11 Special Rules for the Kerala Local Self Government Engineering Service, 2007. According to them, those provisions are ultra vires and unconstitutional. 3. The official respondents have filed a counter affidavit, stating that WPC 17322/2008 etc.. 3 in view of the 73rd and 74th amendments to the Constitution of India, the functioning of the Local Self Government institutions has undergone a sea change. Most of the developmental projects hitherto undertaken by the Public Works and Irrigation Departments were transferred to the L.S.G.D. Initially, Engineering staff from the Public Works and Irrigation Departments were being deployed for a period of three years to the L.S.G.D and they were being repatriated after the said deputation period. Now, it is thought that for extending technical support to the new Department for the various projects, schemes and functions transferred to it, an Engineering Wing should be established in the L.S.G.D. It was also decided to reduce the cadre strength of Engineering staff in the parent Departments of Public Works and Irrigation and also to create required number of posts in the L.S.G.D. The incumbents occupying the abolished posts were to be transferred to the L.S.G.D., subject to certain norms framed by the Government. To give statutory backing to the absorption of the surplus Engineering staff from the two Departments, in the L.S.G.D., the impugned Special Rules were framed. All the actions taken by the Government are in accordance with law and the orders impugned in this Writ Petition and other connected Writ Petitions are legal and valid, it is submitted. So, the State prayed for dismissal of the Writ Petitions. WPC 17322/2008 etc.. 4 4. The learned senior counsel Mr.O.V. Radhakrishnan raised the following contentions: He submitted that the transfer of technical staff from the Water Resources Department has been effected not with reference to the cadre strength ascertained on the date of the relevant orders, but based on the cadre strength as on 1.1.2008, which is an artificial date, which has no relevance for the deployment or transfer. The cadre strength, which is relevant, is the one prevailing on the actual date of absorption. The Rules provide for transfer of those incumbents, who did not opt, based on their juniority. But, the juniority should have also been taken with reference to the date of transfer to the new Department for absorption and not with reference to the cut off date 1.1.2008. The learned senior counsel also submitted that the writ petitioners were occupying posts in the Irrigation Department within the sanctioned cadre strength. They were appointed regularly to those posts in accordance with the relevant rules. Now, their deployment would amount to sending them out from the posts held by them substantively. Such action would offend the provisions of Article 311 of the Constitution of India. The learned senior counsel pointed out that the fixation of a cut off date for the purpose of deployment is hit by the decision of this Court in Ext.P26 judgment. There was a direction in that judgment to prepare the list of Assistant Engineers to be deployed, taking into WPC 17322/2008 etc.. 5 account the cut off date 15.2.2006, so that juniors on that date can be deployed. The said direction of this Court is applicable in the case of deployment of Assistant Executive Engineers also. Since the cut off date is 1.1.2008, by the time the deployment orders were actually issued, several juniors joined the cadre. So, retaining those juniors, deployment of the seniors is unjustified. The learned senior counsel also pointed out that even in the cadre of Assistant Executive Engineers, several promotees to that cadre posted after 1.1.2008, are being retained, while the petitioners, who are seniors, are being sent out. The same is arbitrary and discriminatory. The learned senior counsel submitted that for the maintenance of the ratio between Diploma holders and Degree holders, the options submitted by certain persons have not been accepted and those who have not submitted their options, are being deployed. For the purpose of deployment or absorption in the new Department, it is neither necessary nor fair to take into account the ratio between the Diploma holders and Degree holders. The learned senior counsel further pointed out that clauses (iv) and (v) of Rule 2(2) of Ext.P11 Special Rules, which provide for mandatory absorption of the petitioners and others, are unconstitutional for being violative of Articles 14, 16 and 311 of the Constitution of India. 5. We also had the benefit of hearing the learned counsel appearing WPC 17322/2008 etc.. 6 in the connected writ petitions, in which the aforementioned clauses of Rule 2(2) of Ext.P11 Special Rules were challenged. The learned senior counsel Mr.K.R.B. Kaimal submitted that the Engineering staff in the P.W.D are those who opted to continue in that Department, while it was bifurcated into P.W.D and Irrigation Departments in the year 1990. Those who opted for Irrigation Department got accelerated promotion. Now, there is a merger of these two wings. When Engineers from both the Departments join the same cadre in the newly formed Engineering Wing of the L.S.G.D., the erstwhile juniors in the P.W.D., who opted for Irrigation Department and got accelerated promotion in that Department, will become seniors in the L.S.G.D., to their erstwhile seniors in the P.W.D. The same is highly arbitrary and discriminatory. The Special Rules thereby treat the unequals equally and therefore, the impugned provisions offend the fundamental rights guaranteed under Articles 14 and 16 of the Constitutions of India, of the persons deployed from the P.W.D. The learned senior counsel also pointed out the alleged irrationality in fixing a cut off date for the purpose of absorption in the new service. The date relevant should be the actual date of deployment and not the cut off date, it is submitted. 6. We also heard learned counsel Mr.C.Unnikrishnan, who appeared in two connected Writ Petitions and Mr.S.Vishnu, who represented similarly WPC 17322/2008 etc.. 7 placed persons. The petitioners in those cases are persons who were advised for appointment as Assistant Engineers in the P.W.D before 1.1.2008, but were appointed on 4.1.2008. So, they say, they being persons appointed after the cut off date, should not have been absorbed in the new service. They further say, they applied for appointment in the P.W.D and if there is a dearth of vacancies, they may be retrenched, so that they can register with the P.S.C and can wait for advice when vacancies are reported subsequently. They also challenge clause (iv) of Rule 2(2) of Ext.P11 Special Rules for Engineering Service in the L.S.G.D. We also heard M/s.M.V.Bose, Dr.K.P.Satheesan, V.A.Muhammed, B.S.Swathy Kumar, Kodoth Sreedharan, M.Sasindran, Elvin Peter, Kaleeswaram Raj, P.Santhosh Kumar, Anil Sivaraman, Bechu Kurian Thomas, K.Siju, V.Jayapradeep, Tojan J. Vathikulam, D.Narendranath, P.V.Elias, M.Ramaswamy Pillai, G.Ajaya Kumar, M.V.Amaresan, M. Poly Mathai, C.K.Pavithran, P.R.Sreejith, M.Harisharma and M.P.Madhavankutty, learned counsel who appeared in the connected writ petitions. 7. The learned Government Pleader, on the other hand, submitted that abolition of posts in a Department and creation of posts in another Department are falling within the realm of policy decisions of the Government and normally, the Court has to keep its hands off from such WPC 17322/2008 etc.. 8 decisions. To implement the mandate of the 73rd and 74th amendments to the Constitution of India, the Departments of Public Works, Irrigation and Local Self Government were re-structured and substantial functions of the first two Departments were transferred to the L.S.G.D. As a result, the Government reduced the staff strength in the Public Works and Irrigation Departments and correspondingly, it created necessary posts in the L.S.G.D. Everything was done after meticulous study and deliberations and to give statutory backing to those policy decisions, Special Rules were also promulgated. The learned Government Pleader submitted that by virtue of Rule 14 of Part I of the Kerala Service Rules, the services of a Government servant are at the disposal of the State always and the State can decide where he should serve. Therefore, the petitioners cannot demur when their services are absorbed in another Department. The learned Government Pleader also submitted that as a result of absorption of the Engineering staff in the L.S.G.D., none of their service conditions is changed. They will continue in the same grade with all service benefits, which they were enjoying hitherto. The Government wanted to have some experienced hands and that was the reason why the persons who were advised for appointment in the Department as fresh hands after the cut off date were spared. There is nothing wrong in fixing the cut off date. In this case, the WPC 17322/2008 etc.. 9 cut off date has been chosen as the date on which the Special Rules came into force, that is, 1.1.2008. A Division Bench of this Court in W.A.No.746/2003 and connected cases upheld the fixation of a cut off date for the purpose of deployment to the L.S.G.D. The learned Government Pleader referred to G.O.(Ms) No.94/08/LSGD dated 27.3.2008 (Ext.P18), fixing the cadre strength in the Engineering Wing of L.S.G.D. He also referred to G.O.(Ms) No.38/08/PWD dated 8.9.2008, as per which 1415 posts have been identified as excess in the P.W.D., to be abolished and shifted to L.S.G.D. As per G.O.(Ms) No.282/08/LSGD dated 25.10.2008, 700 posts of Overseers, 150 posts of Assistant Engineers and one post of Chief Engineer in the P.W.D have been abolished and shifted to L.S.G.D. The learned Government Pleader also took us through G.O.(Ms) No.54/2008/WRD dated 28.11.2008, as per which 1107 posts of Engineering staff have been abolished in the Irrigation Department. The said order also says that they will be treated as having been shifted to the L.S.G.D., with effect from the dates the incumbents were relieved from their parent Departments to join the transferee Department. The learned Government Pleader also referred to G.O.(Ms) No.331/08/LSGD dated 18.12.2008 and G.O.(Ms) No.332/08/LSGD dated 18.12.2008, as per which the surplus Engineering staff were absorbed in the L.S.G.D. He also WPC 17322/2008 etc.. 10 admitted that in certain cases the options submitted by senior hands were not acted upon and non-optees were deployed in their place, from the cadre of Assistant Engineers. The reason is that there is a ratio between promotees and direct recruits. The promotees mainly consist of Diploma holders and the direct recruits consist of Degree holders. Even after deployment, to maintain the ratio between direct recruits and promotees, care has been taken to deploy hands proportionately from both the groups. Such deployment helps to maintain the very same ratio in the transferee Department also. If strict seniority alone is reckoned, all the transferees may be Degree holders or Diploma holders. So, seniority in the two categories in the same post has also been given due weight, while selecting the incumbents for absorption. The learned Government Pleader further submitted that no valid ground to interfere with a subordinate legislation has been raised in the Writ Petitions challenging Ext.P11 Special Rules. So, he prayed for dismissing the Writ Petitions. 8. The learned counsel for the petitioners in support of their submissions, relied on the decision of the Apex Court in Kerala State Electricity Board v. N.Sukesen [(1996)9 SCC 397]. The said decision says that when a Department is bifurcated and again merged, the seniority of the WPC 17322/2008 etc.. 11 incumbent before bifurcation should not be affected on merger. The learned counsel also relied on the decision of the Apex Court in Moti Ram v. N.E. Frontier Railway [AIR 1964 SC 600], wherein it was held that a person appointed substantively to a post in the permanent cadre, is entitled to continue in service till his superannuation, unless he is reverted or terminated from service by taking disciplinary action. 9. The learned Government Pleader, in support of his submission that this Court may not interfere with the policy decisions of the State concerning abolition of posts, creation of posts etc., relied on the decisions of the Apex Court in Union of India v. Tejram Parashramji Bombhate [(1991)3 SCC 11], Dr.N.C.Singhal v. Union of India [(1980)3 SCC 29], Association for the Officers of the W.B.Audit and Accounts Service v. W.B. Audit and Accounts Service [1995 Supp (4) SCC 44], S.P. Shivprasad Pipal v. Union of India [(1998)4 SCC 598], State of A.P. v. V.C.Subbarayudu [(1998)2 SCC 516] and State of Haryana v. Navneet Verma [AIR 2008 SC 417]. To support the State's decision to fix a cut off date, the learned Government Pleader relied on the decisions of the Apex Court in University Grants Commission v. Sadhana Chaudhary [(1996) 10 SCC 536] and Govt. of A.P. v. Subbarayudu [2008(2) KLT 681 (SC)]. WPC 17322/2008 etc.. 12 10. We considered the rival submissions and also went through the pleadings of the parties. The relevant clauses of Rule 2(2) impugned in these Writ Petitions read as follows: “(iv) With effect from 1st January, 2008, those members in the categories of Chief Engineer, Superintending Engineer, Executive Engineer and Assistant Executive Engineer in the Kerala Engineering Service and those members in the category of Assistant Engineer in the Kerala Engineering Subordinate Service, who are found to be excess in the respective categories in the respective Services, as a result of the transfer of functions and responsibilities of the Government to the Local Self Government Institutions and on consequent fixation of staff strength and determination of number of posts required in those categories and Services, shall, suo motu be absorbed into the Kerala Local Self Government Engineering Service and included in the respective categories in the Kerala Local Self Government Engineering Service. The absorption under this sub-rule shall be in the order of juniority and subject to requirement. (v) The rank and seniority of a person absorbed into the Kerala Local Self Government Engineering Service and included in a category in that Service, under sub-rule (2), (3), (4) or (5) shall be determined on the basis of his date of appointment and seniority in the respective category in the former service, and if WPC 17322/2008 etc.. 13 he is a direct recruit in that category, on the basis of the date of advice of the Public Service Commission for appointment to that category.” Going by the materials, including the orders produced by the writ petitioners and the Government, it is evident that the Government have abolished some posts in the Public Works and Irrigation Departments and corresponding number of posts has been created in the newly formed Engineering Wing of the L.S.G.D. Creation and abolition of posts are matters within the realm of policy of the Government. The policy may be wise or foolish. But, the Court is not concerned with that. Even if a person is appointed to a post on substantive basis, if that post is abolished, the incumbent will be retrenched. So, the contention of the learned senior counsel Mr.O.V.Radhakrishnan that once a person is appointed to a post substantively, he can continue in service till superannuation or he can be terminated only by taking disciplinary action, is plainly untenable. A regular incumbent's tenure in a post is coterminous with the existence of that post. If that post held by him is abolished, the incumbent is liable to be retrenched. In this case, instead of retrenching the petitioners and leaving them to stand in the queue for re-appointment when vacancies arise, the Government took a policy decision to accommodate them in the newly WPC 17322/2008 etc.. 14 created posts in the L.S.G.D. It is a favour done to them. The decision in Moti Ram v. N.E.Frontier Railway (supra) has no application to a case where the post is abolished. Therefore, we find nothing arbitrary or irrational about the decision of the Government to abolish certain posts in the Public Works and Irrigation Departments and to absorb the resultant surplus staff, in the L.S.G.D. 11. The grounds available for impugning a subordinate legislation have been succinctly stated by this Court in Pankajaksy v.George Mathew [1987(2) KLT 723]. Those grounds are the following: “12. Thus, the rule made under a statute by an authority delegated for the purpose can be challenged on the ground (1) that it is ultra vires of the Act; (2) it is opposed to the Fundamental rights; (3) it is opposed to other plenary laws. To ascertain whether a rule is ultra vires of the Act, the Court can go into the question (a) whether it contravenes expressly or impliedly any of the provisions of the statute; (b) whether it achieves the intent and object of the Act; and (c) whether it is 'unreasonable' to be manifestly arbitrary, unjust or partial implying thereby want of authority to make such rules.” Going by the above principles laid