JUDGMENT K. Sreedharan, J. 1. Same issues arise for consideration in these Original Petitions. So, I consider it advantageous to dispose of them by a common judgment. As agreed to by counsel appearing on either side, O.P. 2172/1989 is treated as the main petition. Parties and documents as they are arrayed and marked in that Original Petition are referred to as such in this judgment. 2. Harbour Engineering Branch of Ports Department became an independent department as Harbour Engineering Department in 1982. The Special Rules applicable to the Harbour Engineering Branch of the Kerala Port Service are applicable to the various services in the Harbour Engineering, Department. Under the said Rule, one of the methods of appointment to the post of Assistant Executive Engineer is by transfer from the category of Assistant Engineers of the Harbour Engineering Branch of the Kerala Port Subordinate Service. The qualifications prescribed in respect of the post of Assistant Executive Engineer by transfer from Assistant Engineer are (i) B. Sc. Degree in Engineering (Civil) of a recognised University of India; or (ii) Associate Membership Diploma of the Institution of Engineers (India) in Civil Engineering. It is also provided that an Assistant Engineer with Degree qualification should have worked for not less than three years as an Assistant Engineer. Assistant Engineers with Diploma in Civil Engineering are also entitled to be posted as Assistant Executive Engineers by transfer, provided they have a minimum period of seven years service, out of which five years shall be as Assistant Engineer. A ratio of 3:1 of the total posts of Assistant Executive Engineers shall be applied between Graduates and Diploma holders in the matter of appointment of Assistant Executive Engineers. 3. Petitioner herein was appointed as Assistant Engineer on 15th May 1980 in the Harbour Engineering Branch. At that time, he was a Diploma holder, he took Degree in Civil Engineering in November, 1986. By that time, he had to his Credit 61/2 years of service as Assistant Engineer. On acquiring degree qualification, he wanted to be treated as degree holder Assistant Engineer with 61/2 years experience in November, 1986. He filed a representation before the Chief Engineer, second respondent, to consider him for promotion to the post of Assistant Executive Engineer as a Degree holder. On acquiring degree qualification, he wanted to be treated as degree holder Assistant Engineer with 61/2 years experience in November, 1986. He filed a representation before the Chief Engineer, second respondent, to consider him for promotion to the post of Assistant Executive Engineer as a Degree holder. That request was turned down by Exhibit P-1 letter dated 5th May 1988, stating: "In order to consider your case under category A (Degree holder), you have first to get entry in that category, which can be done only on your option. Your case as a Graduate Engineer will be considered only after considering the claims of all persons who are in category A on the date of acquisition of your qualification or a later date, which you may choose. You are requested to forward to this office your option as to whether you opt for degree quota or otherwise through proper channel". According to the petitioner, an Assistant Engineer, who is a Diploma holder, must be treated as an Assistant Engineer with Degree the moment he acquires that qualification. The experience gained by him as Assistant Engineer prior to the acquisition of the Degree must also enure to his benefit while considering him for the post of Assistant Executive Engineer on appointment by transfer. The stand taken by the Head of the Department that the Diploma holder, when acquires the degree qualification, can be ranked as the junior-most Assistant Engineer among degree holders and he will have to gain experience of three years thereafter, is illegal. It is argued that Degree holders and Diploma holders in the category of Assistant Engineers are fused into one category, namely Assistant Engineers. They are having the same duties and responsibilities. The nature of the work transacted by them is identical. So, they should have a common seniority. Depending on the qualification, degree holders may be required to have a lesser experience than the diploma holders for the higher post. Their eligibility to the higher post should be decided on the basis of the qualification and experience gained by each of them on the date of occurrence of the vacancy. If on the date of the occurrence of the vacancy an Assistant Engineer is a Degree holder, the experience gained by him as Assistant Engineer while he was a Diploma holder, must also be counted for consideration to the post of Assistant Executive Engineer. If on the date of the occurrence of the vacancy an Assistant Engineer is a Degree holder, the experience gained by him as Assistant Engineer while he was a Diploma holder, must also be counted for consideration to the post of Assistant Executive Engineer. In other words, an Assistant Engineer who is a Diploma holder, is not to be denied the experience gained by him in that cadre till he acquired the degree qualification while being considered for appointment to the cadre of Assistant Executive Engineer by transfer. 4. A detailed counter affidavit has been filed on behalf of the State. A Section Officer of the Fisheries and Ports Department of the Secretariat has sworn to the same. The contention taken therein are to the following effect: As per the Special Rules of the Kerala Port Service (Harbour Engineering Branch), the appointment to the category of Assistant Executive Engineer shall be made from Assistant Engineers under Group A and B. Group A consist of Graduates and Group B Diploma holders A ratio of 3 : 1 of the total posts of Assistant Executive Engineer shall be applied between candidates possessing the qualification under Group A and candidates possessing the qualification under Group B in the matter of appointment to that cadre. On acquiring B. Tech. Degree, petitioner informed the Chief Engineer that the same may be entered in the seniority list and promotion be given on due date considering him as the seniormost Graduate Assistant Engineer. There are two groups of Assistant Engineers to be considered for appointment to the post of Assistant Executive Engineer. Since petitioner acquired qualification prescribed under Group A not at the time of entering the service but on a later date after joining the department, he has to choose a date for admission to Group A either on the date of acquisition of degree qualification or on a later date if he desires to do so. He has not given his option till date. But applying ratio 3:1 between Degree holders and Diploma holders, vacancy had to be filled up from category of Group A. The seniormost Assistant Engineers under Group A are respondents 3 and 4. He has not given his option till date. But applying ratio 3:1 between Degree holders and Diploma holders, vacancy had to be filled up from category of Group A. The seniormost Assistant Engineers under Group A are respondents 3 and 4. Petitioner is not eligible for promotion and appointment as Assistant Executive Engineer for the vacancy that arose, which is to be filled from Group A. Petitioner did not enter into the list of Group A Assistant Engineers by exercising his willingness and is not the seniormost Assistant Engineer in Group A. The minimum experience prescribed for persons in Group A is three years service for promotion as Assistant Executive Engineer. So, the experience mentioned here implies that the officer after obtaining Degree qualification must possess the minimum experience to become eligible for promotion. His acquisition of the Degree qualification cannot be considered as sufficient reason to become eligible for promotion as Assistant Executive Engineer in Group A. Respondents 3 and 4 were recruited through Public Service Commission as Assistant Engineers under Graduate quota. Acquisition of additional qualification does not confer on the petitioner any claim over the seniority of candidates recruited by the Public Service . Commission. Petitioner did not enter the list of Group A Assistant Engineers by exercising his willingness. Petitioner has either to remain category B or opt for category A as junior to the persons in that group who have acquired their rank in the gradation list prior to the date of acquisition of qualification by the petitioner. On these basis, it was contended that petitioner is not entitled to any of the reliefs asked for. 5. Petitioner and respondents 3 and 4 are Assistant Engineers in the Harbour Engineering Department. Petitioner was a Diploma holder. Respondents 3 and 4 held Degree in Civil Engineering when they entered the service as Assistant Engineer. A Graduate Assistant Engineer and Assistant Engineer holding Diploma in Engineering discharge the same duties and functions. There is no difference in the nature of their responsibility depending on their qualification. Degree holder Assistant Engineer and Diploma holder Assistant Engineer belong to the same class or category. As per R.27 of the Kerala State and Subordinate Service Rules, seniority of a person in a service, class, category or grade shall be determined by the date of the order of his first appointment to such service, class, category or grade. Degree holder Assistant Engineer and Diploma holder Assistant Engineer belong to the same class or category. As per R.27 of the Kerala State and Subordinate Service Rules, seniority of a person in a service, class, category or grade shall be determined by the date of the order of his first appointment to such service, class, category or grade. So, the seniority of all Assistant Engineers in the Harbour Engineering Department should be determined on the basis of the date of the order of his first appointment to that category or grade. In other words, seniority of Graduate Assistant Engineer and Diploma holder Assistant Engineer should be determined by the date of the order of his appointment as Assistant Engineer. The State has advanced a contention that Graduate Engineers are governed by a separate seniority list and Diploma holders by another list. Is it warranted by any provision of the General Rules or the Special Rule ? 6. The service in Harbour Engineering Department is governed by the Special Rules of the Kerala Port Service (Harbour Engineering Branch), i.e. S.R.O. No. 775/75 as modified by S.R.O. 75/83. As per the Special Rules, Category 3 is Assistant Executive Engineer. The method of appointment to that category is by transfer from Assistant Engineers of the Harbour Engineering Branch of the Kerala Port Subordinate Service. Column 3 of the Rules lays down the qualifications. There Assistant Engineers are divided into two groups. Group A consisting of Graduates in Engineering and Group B consisting of Diploma holders. An officer in Group A must have worked for not less than three years in a post not lower than that of an Assistant Engineer in any Government Department or Port Trust for being appointed by transfer to the post of Assistant Executive Engineer. A Diploma holder Assistant Engineer in Group B must have put in a minimum period of 7 years service, out of which five years shall be as Assistant Engineer in the Harbour Engineering Branch. It should be remembered that under the scheme of the Service Rules, where a person from the 'Subordinate Service' is appointed to the 'State Service', it is always appointment by transfer and not a case of promotion. Where there is a change of service, there is no question of promotion. It should be remembered that under the scheme of the Service Rules, where a person from the 'Subordinate Service' is appointed to the 'State Service', it is always appointment by transfer and not a case of promotion. Where there is a change of service, there is no question of promotion. The stand taken by the State that there exist a separate seniority list of Assistant Engineers in Group A for Degree holders and a seniority list of officers in Group B for Diploma holders for promotion to the post of Assistant Executive Engineer is one ignoring the fact that the appointment to the cadre of Assistant Executive Engineer is only by the mode of recruitment by transfer. No provision in the Special Rules enjoins the Government or the Head of the Department to maintain a seniority list of Assistant Engineers with Degree Qualification and another of Assistant Engineers having Diploma. Existing special rules do not provide for two seniority lists of graduates and of diploma holders. All Assistant Engineers, as stated earlier, belong to the same cadre and are to be ranked in one seniority list. On an examination of the rules, I find that the contention of the State that separate seniority lists of officers in Group A and Group B are maintained is untenable. In the absence of Rule it is not open to the State to contend that Assistant Engineers who come from the category of diploma holders and Degree holders are two different and distinct class. 7. R.28(b)(i)(7) of the General Rule inter alia provides that when the Special Rules provide for a definite ratio or order of preference from the feeder categories, persons from each feeder category shall be included in separate select lists and appointment shall be made in accordance with the ratio or order of preference prescribed by such Special Rules for each feeder category. As per this provisions, according to respondents when a ratio of 3 : 1 is provided for appointment by transfer from Assistant Engineers between Graduates and Diploma holders, there should be separate list for graduates and diploma holders. This can be prepared only if separate lists of such officers are maintained. I do not find my way to agree with this. The above provision is applicable when persons from separate feeder categories are included in the select list. This can be prepared only if separate lists of such officers are maintained. I do not find my way to agree with this. The above provision is applicable when persons from separate feeder categories are included in the select list. In the instant case, Assistant Engineers whether degree holder or diploma holder, belong to same category. Further the question of promotion does not arise in the case of appointment by transfer. Qualification and experience as on the date of occurrence of the vacancy has to be assessed. Appointment has to be made in the ratio mentioned in the Special Rule between Degree holders and Diploma holders. In other words, when vacancy in the cadre of Assistant Executive Engineer arises, depending on the qualification and experience as on the date of the vacancy appointment should be effected in accordance with the ratio of 3 : 1 between Degree holders and Diploma holders. Instead of doing that, there is no legal basis to support the claim advanced by the State that Degree holders are to form a separate Group, Group A, and Diploma holders Group B and the seniors among those groups are to be appointed. Nor is there any legal backing for the contention that Diploma holder, on getting Degree qualification, should opt to come to Group A as the junior-most in that Group. 8. Sri T. R. G. Warriyar, learned counsel representing the 4th respondent submitted on the basis of a draft Special Rule, which he was having, that a provision similar to the one contained in the Kerala Engineering Service (General Branch) is in the offing and that when that General Rule is amended accordingly, the Government will be justified in having separate seniority lists for Graduates and Diploma holders. The provision referred to by him is : "A person, who while holding the post of Assistant Engineer passes sections A and B of the A.M.I.E. (India) Examination or a Degree in Engineering of a recognised University shall be eligible for promotion as Assistant Executive Engineer against the quota allotted for those possessing the qualifications mentioned in item (i) or section A in item (ii) of the Annexure only after the claims of all those who on the date of his passing the A.M.I.E. (India) Examination, or a Degree in Engineering of a recognised University, possessed the qualifications mentioned, in item (i) in the Annexure have been considered". Identical provision was introduced in the Kerala Engineering Service (General Branch) by amending R.5 of that Rule by G.O. (P) No. 79/82, dated 8th June 1982. The validity of that provision was considered by a Bench of this Court in O.P. 5002/1988. This Court declared that amendment as arbitrary, discriminatory and unconstitutional as it violates Art.14 and 16 of the Constitution of India. In view of that pronouncement, if the amendment sought to be introduced to the Harbour Engineering Branch of the Kerala Port Service is in fact brought into effect will also have the same fate. Since that amendment has not been brought into force, I need not state anything further in the matter, for the law has been laid down by a Bench of this Court. The decision rendered by this Court was challenged before the Supreme Court in petition for Special Leave to Appeal (Civil) No. 15472/1990. The Supreme Court dismissed that petition on 20th December, 1990. 9. If the stand taken by respondents 1 and 2 is accepted, a Diploma holder Assistant Engineer, who has put in long years of service in that cadre will lose the benefit of that experience on his acquiring Degree qualification. He will have to come to Group A as the junior-most and then put in service for three years. The experience gained by them cannot be wiped off on the ground that they acquired the degree in Civil Engineering. This is illegal and arbitrary. An Assistant Engineer, who is a Diploma holder, on acquiring Degree qualification, cannot be compelled to disgorge the benefit of the experience gained by him as Assistant Engineer. He must have credit of the experience. Depending on the rank in the seniority list and the Degree qualification, which he acquired subsequently, as on the date of occurrence of the vacancy must be considered for appointment by transfer to the cadre of Assistant Executive Engineer. Petitioner who took the Degree in 1986 and had put in 65 years of experience on that date, must be considered" as a Graduate Assistant Engineer for being appointed to the post of Assistant Executive Engineer by transfer in the vacancy which arose subsequent to November, 1986. The contrary stand taken by respondents 1 and 2 is illegal. 10. Petitioner in O.P. 6738/1987 was a Diploma holder. He was appointed as Assistant Engineer by order dated 24th September 1980. The contrary stand taken by respondents 1 and 2 is illegal. 10. Petitioner in O.P. 6738/1987 was a Diploma holder. He was appointed as Assistant Engineer by order dated 24th September 1980. He joined that service on 25th September .1980. He took the B. Tech. Degree examination held in 1985. The result of that examination was published in November, 1985. He came out successful in that examination Thus by December, 1985, he has put in more than five years of experience. So, to the vacancy of Assistant Executive Engineer that arose subsequent to December, 1985, he must be considered for appointment by transfer as a Graduate, having more than three years of experience. 11. Petitioner in O.P. 2180/1989 joined the service as First Grade Draftsman in 1979. He was a Diploma holder. He was promoted as Assistant Engineer on 28th December 1981. He took the B. Tech. examination in September, 1988. When the result was published on 28th December 1988, he came out successful. To the vacancy that arose thereafter in the cadre of Assistant Executive Engineer he should be considered for being appointed by transfer, depending on his qualification as Degree holder with experience of more than three years. 12. Respondents 1 and 2 are directed to review the appointments of Assistant Engineers by transfer to the post of Assistant Executive Engineer to the vacancies that arose subsequent to December, 1985 and to give promotion to the petitioners, in these Original Petitions depending on their qualifications and experience on the date of the occurrence of vacancies. This must be done as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. Original Petitions are allowed in the above terms.