Judgment :- K.K. Usha, J. These original petitions are referred for consideration of a Larger Bench under reference order dt. 25.10.1995. According to the Bench which referred these matters, following points arise for consideration: "(a) whether the decision in O.P.5002/88 requires reconsideration? (B) In the absence of a regulatory rule regarding promotion of Diploma holders acquiring degree, how their seniority is to be worked out; and whether their seniority while holding Diploma should be reckoned for the purpose of promotion in the category of Degree holders, in view of the decision of the Division Bench in W. A. No. 106/80. (C) Should there be two separate seniority list, one for degree holders and the other for diploma holders, or there shall only be a single seniority list as held in O.P. No. 2172/ 89 dt 30.9.91." 2. The sole petitioner in O.P. 15008/93 and the two petitioners in O.P. 1392/95 were Assistant Executive Engineers in the service of Kerala State Electricity Board, (hereinafter referred to as 'the board) at the time of filing the original petitions. They challenge the action taken by the Board in not granting them promotion in the degree quota on the basis of their entire period of service in the category of Asst. Engineer. They also seek as a consequential relief earlier promotion to the higher post. 3. Petitioners are governed by the Special Rules for Kerala Engineering Service (General branch) as adopted by the Board. The above Rules would provide that the post of Asst. Exe. Engineers shall be filled up by recruitment by transfer from Asst. Engineers and the post of Exe. Engineers by promotion from Asst. Exe. Engineers. The qualifications prescribed to hold the post of Asst. Exe. Engineers and Exe. Engineers are as follows: "Asst. Exe. Engineers Must possess any degree or diploma mentioned in item(i) or (ii) in the Annexure. OR Must possess Draftsman's certificate of the College of Engineering, Guindy (2 years course) or S.M T. Overseers Certificate and must have put in a total service of 25 years in the department out of which 121/2 years must be as Assistant Engineer. Exet. Engineers Must possess any degree or diploma mentioned in item (i) or in Section-A under item (ii) in the Annexure". Item (i) in Section-A of the Annexure is a Degree in Engineering. Item (ii) is Diploma in Engineering. Exet. Engineers Must possess any degree or diploma mentioned in item (i) or in Section-A under item (ii) in the Annexure". Item (i) in Section-A of the Annexure is a Degree in Engineering. Item (ii) is Diploma in Engineering. R.5 deals with promotion as Executive and Assistant' Executive Engineers. It reads as follows: "5. Promotion as Executive and Asst. Exe. Engineers : (a) A person who obtains the A.M.I.E. (India) Diploma or a pass in Section A & B of the A.M.I.E. of the Institution of Engineers (India) in Civil or Mechanical Engineering after appointment as Asst. Exe. Engineer shall be eligible for promotion as Exe. Engineer as only after the claims of all Asst. Exe. Engineers who, on the date of his obtaining the A.M.I.E. (India) Diploma or a pass in Section a & b of the A. M.I. E. of the Institution of Engineering (India) in Civil or Mechanical Engineering, possessed the qualification mentioned in item (i) and Section A in item (ii) in the Annexure have been considered. (b) Vacancies in the category of Asst. Exe. Engineers shall be filled up from among Asst. Engineers in the ratio of 75:20:5 respectively from among (1) Persons possessing any of the qualifications mentioned in item (i) or in Section A in item (ii) of the Annexure. (2) Those possessing any of the qualifications mentioned in Section B in item (ii) of the Annexure, and (3) Those possessing the Draftsman Certificate of the College of Engineering, Guindy or S.M.T. Overseer's Certificate. A person, who, while holding the post of Assistant Engineer passes Sections A & 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. Provided that it will be left to the option of such person to continue among the Assistant Engineers possessing the qualifications mentioned in Section B in item (ii) of the Annexure and claim promotion against the quota allotted to them." 4. Petitioner in OP. Provided that it will be left to the option of such person to continue among the Assistant Engineers possessing the qualifications mentioned in Section B in item (ii) of the Annexure and claim promotion against the quota allotted to them." 4. Petitioner in OP. 15008/93 entered service of the Board as II Grade Overseer on 24.8.1962 and thereafter promoted as I Grade Overseer on 4.7.1964. At the time of his entering service, he was a Diploma Holder in Civil Engineering. He was promoted as Junior Engineer, which was later re-designated as Asst. Engineer on 1.4.1967. While holding the post of Asst. Engineer, he obtained Degree in Civil Engineering in June, 1979. In Ext. P1(a) final gradation list of Asst. Engineers (Civil) as on 1.10.1985, petitioner is ranked as No. 64 above the 3rd respondent-Somasekharan Nair, who entered service as Asst. Engineer only on 3.7.1971 and therefore, ranked as No. 68. There is a ratio of 3:1 between Degree holders and Diploma holders for appointment to the category of Asst. Exe. Engineers. While the third respondent was appointed as Asst. Exe. Engineer on 24.5.1989, petitioner was appointed as Asst. Exe. Engineer only on 21.3.1990. 3rd respondent was thus given appointment in preference to the petitioner on the ground that he had obtained Degree earlier than the petitioner and therefore, he was considered as senior to the petitioner in the Degree quota. Eventhough the petitioner had made a representation on 28.3.1988 before the 1 st respondent requesting him to promote the petitioner in preference to his juniors, the representation was not favourably considered. 5. In the meanwhile, a Bench of this Court had occasion to consider in O.P. 5002/88, the validity of the amendment brought to the Kerala Engineering Service (General branch) under G.O. (P) No. 79/82 dt. 8.6.1982 restricting the scope of appointment of those Diploma holders - Asst. Engineers who acquired Degree while in service for promotion as Asst. Executive Engineer by providing that they shall be eligible for promotion against the Degree quota only after the claims of all those who, on the date of passing the Degree, possess the Degree qualification. Under judgment dated 19.2.1990, the Division Bench declared the above provision which had the effect that seniority in the Degree quota can be counted only from the date on which Diploma holder acquired Degree qualification, as illegal. Under judgment dated 19.2.1990, the Division Bench declared the above provision which had the effect that seniority in the Degree quota can be counted only from the date on which Diploma holder acquired Degree qualification, as illegal. It was directed that a Diploma holder, when he acquires Degree qualification, has to be considered for appointment to the category of Asst. Exe. Engineer taking into consideration his entire service in the category of Asst. Engineer for the purpose of his seniority in the feeder category. Special Leave Petition, SLP (Civil) No. 15472/90 filed before the Supreme Court against the above judgment, was dismissed on 20.12.1990. Petitioner, therefore, made a further representation, Ext. P4 dt. 29.1.199 3 before the 1 st respondent requesting him to give him his due date in the category of Asst. Exe. Engineer and grant him seniority w.e.f. 22.2.1989, above the date of promotion of his juniors. This representation was rejected under Ext. P5 order dt. 14.9.1993 for the reason that a Diploma holder who acquires Degree qualification in Engineering subsequently will get promotion as Asst. Exe. Engineer in Degree quota only after the claim of graduate Asst. Engineers in the category as on the date of his acquisition of Engineering degree are concerned. Ext. P5 order was communicated to the petitioner under Ext. P6 dt. 30.9.1993. Petitioner obtained an order for impleading the 3rd respondent in a representative capacity on behalf of all affected persons and to give notice to such persons by public advertisement in C.M.P. 27178/93. Notice was thus served by publication in newspaper. In O.P. 1392/95, as mentioned earlier, there are two petitioners. They were first appointed under the service of the Board as I Grade Overseers on 4.7.1964 and they were promoted as junior Engineers (later redesignated as Asst. Engineer) w.e.f. 24.4.1965. During the relevant time, they are Diploma holders. While holding the post of Asst. Engineer, 1st petitioner obtained Degree in Engineering in June 1979 and 2nd petitioner in June 1978.1 st petitioner was promoted as Asst. Exe. Engineer in Degree quota by order dated 21.3.1990 and the 2nd petitioner by order dt. 13.2.1990. They were considered for such promotion in the Degree quota only with effect from the date of their promotion as Asst. Engineer. Later, it was found that 1st petitioner was eligible for promotion in the category of Asst. Exe. Exe. Engineer in Degree quota by order dated 21.3.1990 and the 2nd petitioner by order dt. 13.2.1990. They were considered for such promotion in the Degree quota only with effect from the date of their promotion as Asst. Engineer. Later, it was found that 1st petitioner was eligible for promotion in the category of Asst. Exe. Engineer in the Diploma quota on 5.9.1989 and the 2nd petitioner on 13.2.1990. Their promotion was thus changed into diploma quota with effect from the above dates. 7. The final gradation list, Ext. P1 dt. 27.5.1993 of the Asst. Engineers as on 1.10.1985 would show that petitioners 1 and 2 are ranked a S.28 and 38 and their date of promotion as 6.10.1966. 3rd respondent was ranked much below the petitioners as rank No. 56. But, since 3rd respondent had obtained A.M.I.E. Section A & B in November, 1969, he was promoted as Asst. Exe. Engineer on 22.2.1989 in the Degree quota in preference to the petitioners. Petitioners made Exts. P4 and P5 representations dt. 8.8.1994 seeking seniority in the category of Asst. Exe. Engineer w.e.f. 22.2.1989 above their juniors in the category of Asst. Engineers and who got promotion as Asst. Exe. Engineer earlier than the petitioners for the reason that they acquired A.M.I.E. or Degree qualification earlier than the petitioners. By Ext. P6 reply dt. 29.10.1994, their representations were rejected by the 2nd respondent. By order in CMP 2515/95, petitioner was permitted to implead 3rd respondent in a representative capacity and to take out notice to similarly affected persons by publication. Notice by publication in newspaper was effected. 8. Counter-affidavits have been filed by the Board as well as contesting respondents in these original petitions. During the pendency of O.P. 15008/93, on the basis of an order passed by a Bench of this Court in C.M.P. 27179/93, petitioner was promoted as Executive Engineer by Board's order dt. 2.11.1995. Thereafter, he was promoted as Deputy Chief Engineer and he retired from service while holding that post. According to the petitioner, if the prayers in his original petition are allowed, he would have been entitled to get promotion to the category of Chief Engineer before his retirement. Therefore, learned counsel for the petitioner would submit that the petitioner is entitled to notional promotion, arrears of salary and refixation of retirement benefits on the above basis. 9. According to the petitioner, if the prayers in his original petition are allowed, he would have been entitled to get promotion to the category of Chief Engineer before his retirement. Therefore, learned counsel for the petitioner would submit that the petitioner is entitled to notional promotion, arrears of salary and refixation of retirement benefits on the above basis. 9. During the pendency of O.P. 1392/95, on the basis of directions contained in the order dt. 25.10.95 in C.M.P. 251/95, both the petitioners were given promotion as Exe. Engineers by order dt. 2.11.1995.1 st petitioner got a further promotion as Deputy Chief Engineer and he retired holding the above post. 2nd petitioner retired from service holding the post of Exe. Engineer. According to them, if their seniority in the category of Asst. Exe. Engineers is refixed on the basis of the claim put forward in the original petition, they would have got promotion to higher posts before their retirement. 10. We heard learned counsel for the petitioners, standing counsel for Kerala State Electricity Board and also counsel appearing for party respondents. Admittedly, under Ext. P2 judgment in O.P. 5002/88, a Bench of this Court has declared the amendment to R.5 introduced by G.O. (P) No. 79/82 dt. 8.6.1982 are arbitrary, discriminatory and unconstitutional being violative of Arts.14 and 16 of the Constitution. If this position continues, there is no dispute that all the prayers made by the petitioners are only to be granted. But, it is contended by the learned counsel for the respondents that the above decision requires reconsideration in the light of the later decision of the Supreme Court in N. Suresh Nathan and Ann v. Union of India & Ors., AIR 1992 SC 564. It is also pointed out that while deciding O.P. 5002/88, an earlier Bench decision of this Court in W.A.106/80 was not brought to the notice of the learned judges who rendered the judgment in O.P. 5002/88. In the above case, this court considered the question of promotion to the category of Asst. Engineers under the service of Cochin Port Trust from among Junior Engineers. The contention raised by a Diploma holder Junior Engineer who acquired Degree qualification while in service, that he is entitled to be considered for promotion as Asst. Engineer in the Degree quota on the basis of his overall seniority in the combined list of Junior Engineers, was not accepted. The contention raised by a Diploma holder Junior Engineer who acquired Degree qualification while in service, that he is entitled to be considered for promotion as Asst. Engineer in the Degree quota on the basis of his overall seniority in the combined list of Junior Engineers, was not accepted. This Court took the view that a Diploma holder Junior Engineer, who while in service, acquires the graduation qualification, can either take his chance of promotion in the quota available to the Diploma holder junior Engineers, or he can elect to go over to the channel take out notice to similarly affected persons by publication. Notice by publication newspaper was effected. 8. Counter-affidavits have been filed by the Board as well as cont respondents in these original petitions. During the pendency of O.P. 15008/93, on the basis of an order passed by a Bench of this Court in C.M.P. 27179/93, petitioner promoted as Executive Engineer by Board's order dt. 2.11 .1995. Thereafter, he promoted as Deputy Chief Engineer and he retired from service while holding the According to the petitioner, if the prayers in his original petition are allowed, he have been entitled to get promotion to the category of Chief Engineer before retirement. Therefore, learned counsel for the petitioner would submit th petitioner is entitled to notional promotion, arrears of salary and refixation of retirement benefits on the above basis. 9. During the pendency of O.P. 1392/95, on the basis of directions contained the order dt. 25.10.95 in C.M.P. 251/95, both the petitioners were given promo Exe. Engineers by order dt. 2.11.1995. 1st petitioner got a further promotion as 1 Chief Engineer and he retired holding the above post. 2nd petitioner retired from : holding the post of Exe. Engineer. According to them, if their seniority in the a of Asst. Exe. Engineers is refixed on the basis of the claim put forward in the c petition, they would have got promotion to higher posts before their retirement. 10. We heard learned counsel for the petitioners, standing counsel for Kerala Electricity Board and also counsel appearing for party respondents. Admittedly Ext. P2 judgment in O.P. 5002/88, a Bench of this Court has declared the amendment to R.5 introduced by G.O. (P) No. 79/82 dt. 8.6.1982 are arbitrary, discriminat unconstitutional being violative of Arts.14 and 16 of the Constitution. 10. We heard learned counsel for the petitioners, standing counsel for Kerala Electricity Board and also counsel appearing for party respondents. Admittedly Ext. P2 judgment in O.P. 5002/88, a Bench of this Court has declared the amendment to R.5 introduced by G.O. (P) No. 79/82 dt. 8.6.1982 are arbitrary, discriminat unconstitutional being violative of Arts.14 and 16 of the Constitution. If this position continues, there is no dispute that all the prayers made by the petitioners are on granted. But, it is contended by the learned counsel for the respondents that th decision requires reconsideration in the light of the later decision of the Supreme in M Suresh Nathan and Ann v. Union of India & Ors., AIR 1992 SC 564. I pointed out that while deciding O.P. 5002/88, an earlier Bench decision of this Court in W.A.106/80 was not brought to the notice of the learned judges who rendered judgment in O.P. 5002/88. In the above case, this court considered the que promotion to the category of Asst. Engineers under the service of Cochin pc from among Junior Engineers. The contention raised by a Diploma holder Engineer who acquired Degree qualification while in service, that he is entitled to be considered for promotion as Asst. Engineer in the Degree quota on the has overall seniority in the combined list of Junior Engineers, was not accepted. Tin took the view that a Diploma holder Junior Engineer, who while in service, acquires the graduation qualification, can either take his chance of promotion in the quota available to the Diploma holder junior Engineers, or he can elect to go over to the channel reserved for graduates, in which event, law, justice and fairness require that he should take rank as the junior most amongst the graduate junior Engineers in service as on the date of acquisition of the graduation qualification by him. On the other hand, in O.P. 5002/88, another Bench of this Court took a different view on the claim of a Diploma holder acquiring Degree while working in the feeder category for promotion to the higher posts. On the other hand, in O.P. 5002/88, another Bench of this Court took a different view on the claim of a Diploma holder acquiring Degree while working in the feeder category for promotion to the higher posts. It was held that there is no justification in compelling such an officer to surrender a portion of his service in the feeder category while considering his seniority in the feeder category for promotion to the higher category only for the reason that during part of the service in the feeder category, he was a Diploma holder. But, at this juncture, we may have to note one aspect that what was considered by a Bench of this Court in O.P. 5002/88 is the legality of the very same provision of law with which we are concerned in these original petitions. 11. In O.P. 5002/88, the amendment of the year 1982, bringing in the limitation for promotion to those who acquire Degree in Engineering while in service, has been decided as unconstitutional. This decision was affirmed by the Supreme Court, since the Special Leave Petition was dismissed. If that be so, we have to take it that paragraph 2 of sub-r.(b) of R.5 of the Kerala Engineering Service Rules introduced as per the Government Order dt. 8.6.1982, is not there in the statute book and no reliance could be made on the above provision for denying promotion to the Asst. Engineer who acquired Degree qualification to the post of Asst. Exe. Engineer in the Degree quota, taking into consideration his entire service as Asst. Engineer. 12. We will now consider the question whether the subsequent decision of the Supreme Court in AIR 1992 SC 564 supra has impliedly over-ruled the judgment in O.P. 5002/88. While considering this issue, it is relevant to note that the Special Leave Petition from the judgment in O.P. 5002/88 was dismissed by the Supreme Court on 13.10.1995 - about four years after the judgment in AIR 1992 SC 564 was rendered. Learned counsel for the respondents contended that their submission on the basis of the decision in AIR 1992 SC 5 64 is liable to be considered since, while dismissing the Special Leave Petition, Supreme Court has not given any reasons. Learned counsel for the respondents contended that their submission on the basis of the decision in AIR 1992 SC 5 64 is liable to be considered since, while dismissing the Special Leave Petition, Supreme Court has not given any reasons. Eventhough, we cannot fully agree with this contention, since as mentioned earlier, we are concerned in these original petitions with the correctness of the very same provision of law which has been found unsustainable by this Court and affirmed by the Supreme Court, we proceed to consider on merits the contention raised by the respondents on the basis of the decision in AIR 1992 SC 564. 13. In the above case, Supreme Court considered the recruitment rules for the post of Asst. Engineer in the Public Works Department, Pondicherry. The appointment was by direct recruitment. For direct recruits, qualification prescribed was degree in Civil. Engineering or diploma in Civil Engineering with 3 years professional experience. For qualification prescribed was, (1) Section Officers possessing a recognised Degree in Civil Engineering or equivalent with three years' service in the grade failing which Section Officers holding diploma in Civil Engineering with six years' service in the grade-50% and (2) Section Officers possessing a recognised Diploma in Civil Engineering with six years' service in the grade - 50%. The dispute that arose was whether a Diploma holder Junior Engineer who obtained a Degree while in service becomes eligible for appointment as Asst Engineer by promotion on completion of 3 years service, including therein the period of service prior to obtaining the Degree or 3 years' service as a Degree holder for this purpose, is to be reckoned from the date he obtains the Degree. Diploma holders contended that they are entitled to include their earlier period, while the Degree holders contended to the contrary. The Central Administrative Tribunal upheld the claim of the Diploma holders. Degree holders challenged the above finding before the Supreme Court. While allowing the appeal, Supreme Court observed as follows: "The real question, therefore, is whether the construction made of this provision in the rules on which the past practice extending over along period is based is untenable to require upsetting it. If the past practice is based on one of the possible constructions which can be made of the rules then upsetting the same now would not be appropriate. If the past practice is based on one of the possible constructions which can be made of the rules then upsetting the same now would not be appropriate. It is in this perspective that the question raised has to be determined. The entire scheme, therefore, does indicate that the period of three years' service in the grade required for Degree holders according to R.11 as the qualification for promotion in that category must mean three years' service in the grade as a Degree holder and therefore, that period of three years can commence only from the date of obtaining the Degree and not earlier. The service in the grade as a Diploma holder prior to obtaining the Degree cannot be counted as service in the grade with a Degree for the purpose of three years' service as a Degree holder. The only question before us is of the construction of the pro vision and not of the validity thereof and, therefore, we are only required to construe the meaning of the provision. In our opinion, the contention of the appellants Degree holders that the rules must be construed to mean that the three years' service in the grade of a Degree holder for the purpose of R.11 is three years from the date of obtaining the Degree is quite tenable and commends to us being in conformity with the past practice followed consistently. It has also been so understood by all concerned till the raising of the present controversy recently by the respondents. The Tribunal was, therefore, not justified in taking the contrary view and unsettling the settled practice in the Department." 14. A reading of the entire judgment would clearly show that there was no challenge against the vires of the provision in the Rules which will have the effect of Diploma holders forgoing a portion of their service to claim promotion in the Degree quota. On the other hand, Supreme Court was concerned only with the construction to be given to the terms of the special rules. 15. We will now consider a later decision of the Supreme Court in M. B. Joshi and others v. Satish Kumar Pendey & Ors., AIR 1993 SC 267. On the other hand, Supreme Court was concerned only with the construction to be given to the terms of the special rules. 15. We will now consider a later decision of the Supreme Court in M. B. Joshi and others v. Satish Kumar Pendey & Ors., AIR 1993 SC 267. The controversy in this case was whether seniority amongst the Diploma Holders Sub Engineers who acquired Degree in Engineering during the period of service qualifying them for promotion in 8 years to the post of Asst. Engineer, is to be determined from their date of appointment on the post or from the date of acquiring the required educational qualification. There was no specific rule governing such situation. The minimum period for Sub-Engineer to qualify for promotion to the post of Asst. Engineer was 12 years for Diploma holders and 8 years for such Sub Engineers who obtain degree of graduation in the course of service. State Government had been applying the principle of counting the seniority of Graduate Sub-Engineers from the date of their continuous officiation irrespective of the date on which such Diploma holder Sub-Engineer acquired degree of graduation in Engineering. The period of 12 years was being reduced to 8 years in the case of those Diploma holder Sub- Engineers who obtained Degree of Engineering during the period of their continuous service as Sub-Engineer. Promotion granted to Sub-Engineers who acquired Degree while in service on the above principle was challenged before the Madhya Pradesh Administrative Tribunal. The Tribunal set aside the promotion holding that seniority of Diploma holder Sub-Engineers acquiring Degree of graduation in Engineering for inclusion in the graduation list of Sub-Engineers should be counted from the date of acquisition of graduation in Engineering and not from the dates of their initial entry as Sub-Engineers. This view was not found favour by the Supreme Court. In the course of the discussion, Suresh Nathan's case was referred and it was observed that respondents- diploma holders in that case had admitted the practice followed in the department for a long time and that the case was mainly decided on the basis of past practice followed in that department for a long time. If the past practice is based on one of the possible constructions which can be made of the rules, then upsetting the same would not be appropriate. If the past practice is based on one of the possible constructions which can be made of the rules, then upsetting the same would not be appropriate. It was in this perspective, the question raised was considered in Suresh Nathan's case and it was held that in the schemes of the rules available there, the period of 3 years' service in the grade required for Degree holders according to R.11 as the qualification for promotion in that category must mean three years' service in the grade as a Degree holder and therefore, the period of three years can commence only from the date of obtaining Degree and not earlier. But as mentioned earlier, it is relevant to note that in Suresh Nathan's case there was no challenge against the validity of the rule as arbitrary or unfair. 16. In M. B. Joshi's case also, we find that there was no challenge against the rule. But the Supreme Court took the view that if the period of 8 years is counted from the date of acquiring Degree, then the incentive of adding the qualification during the continuation of service and getting the advantage of acceleration in promotion in eight years would, for all practical purposes, become nugatory and of no benefit. It was therefore, held that Tribunal was wrong in determining the seniority from the date of acquiring degree of Engineering and it ought to have been determined on the basis of length of service on the post of Sub-Engineer. 17. The latest decision of the Supreme Court referred and relied on, on this aspect before us is D. Stephen Joseph v. Union of India & Ors. (1997) 4 SCC 753. The question that came up for consideration in the above case was whether promotion to the post of Asst. Engineer in the 50% promotion quota reserved for the person possessing Degree in Electrical Engineering from a recognised University or equivalent with 3 years regular service in the grade of Junior Engineer in Electricity Department, Government of Pondicherry, Three years' experience as Junior Engineer in the grade is to be counted from the date of acquisition of the degree in Electrical Engineering or the length of service in the grade of Junior Engineer is to be reckoned if the incumbent, at the time of promotion to the 50% quota, also possesses Degree in Electrical Engineering. The order passed by the Central Administrative Tribunal, Madras Bench that three years is not to be reckoned from the date of acquisition of Degree was challenged before the Supreme Court. Referring to Suresh Nathan's case, it was observed that the above case only indicates that past practice must be referable to the applicability of the rule by interpreting it in a particular manner consistently for some time. It was also pointed out that Suresh Nathan's case was distinguished on the facts in M.B. Joshi' s case. It was then observed that if a particular length of service in feeder post together with educational qualification enables a candidate to be considered for promotion, it will not be proper to count the experience only from the date of acquisition of superior educational qualification, because, such interpretation will violate the very purpose to give incentive to the employee to acquire higher education. The appeal was therefore, dismissed. From the above, it is clear that in this case also, there was no challenge against any rule on the ground of its constitutional validity. 18. In O.P. 5002/88, the validity of the amendment brought under Government Order dt. 8.6.1992 in R.5 Kerala Engineering Service (General branch) was directly under challenge on the ground that it is arbitrary, discriminatory and unconstitutional being violative of Arts.14 and 16 of the Constitution. It is relevant to note that the above-mentioned special rules come into force on 25.5.1965. The amendment bringing in a restriction in the promotion of the Diploma Holder Asst. Engineers who acquired a Degree in Engineering while holding the post of Asst. Engineer for promotion to the post of Asst. Exe. Engineer, was brought in only in the year 1982, as mentioned above. The amendment was challenged in 1988 and by judgment dt.19.2.1990, this Court declared the amendment to R.5 as unconstitutional. Therefore, there is no question of a particular interpretation of the rule having been given consistently for a long period as in Suresh Nathan's case. Then the only other question to be considered is whether the Bench decision in O.P. 5002/88 is in conflict with another Bench decision of this Court in W.A.106/80. 19. This Court considered the provisions relating to promotion to the post of Asst Engineer in Cochin Port Trust from among non-graduate Junior Engineers who acquired degree in Engineering while in service. Then the only other question to be considered is whether the Bench decision in O.P. 5002/88 is in conflict with another Bench decision of this Court in W.A.106/80. 19. This Court considered the provisions relating to promotion to the post of Asst Engineer in Cochin Port Trust from among non-graduate Junior Engineers who acquired degree in Engineering while in service. At the outset, we may observe that there was no challenge against the rule. On interpreting the provision in the rule, the Division Bench held that the learned Single Judge was not right in his view that the possession of graduation qualification by a person as on the date of filling up of a vacancy of Asst. Engineer in the graduate quota, will entitle him to be considered for promotion in that quota on the basis of the overall seniority in the combined list of Junior Engineers. According to the Division Bench, it will not be correct, reasonable or fair to understand the scheme of the rule in that manner. The Division Bench took the view that the only reasonable principle on which the seniority list of those feeder category can be drawn up is the length of service put in by the Junior Engineer concerned as graduate Junior Engineer or as Diploma holder Junior Engineer respectively. A Diploma Holder Junior Engineer, who, while in service, acquires graduation qualification, can either take his chance of promotion in the quota available for the Diploma holder Junior Engineer or he can elect to go over to the channel reserved for graduates, in which event he should take rank as the junior most amongst the graduate Junior Engineers in service as on the date of acquisition of the graduation qualification by him, since, ranking in the graduate junior Engineers' list has to be on the basis of the length of service put in by the person concerned as a graduate Junior Engineer. 20. It is true that Special Leave Petition filed from the judgment in W.A.106/80 was dismissed by the Supreme Court. But, in O.P. 5002/88, constitutional validity of similar provision was challenged and the challenge was upheld. There was no such challenge against the validity of the rule in W.A.106/80. 20. It is true that Special Leave Petition filed from the judgment in W.A.106/80 was dismissed by the Supreme Court. But, in O.P. 5002/88, constitutional validity of similar provision was challenged and the challenge was upheld. There was no such challenge against the validity of the rule in W.A.106/80. the decision taken by the Bench of this Court in O.P. 5002/88 that such a provision which was brought by the amendment in R.S, will be arbitrary, discriminatory and violative of Arts.14 and 16 of the Constitution, has been upheld by the Supreme Court, when the Special Leave Petition from the judgment in O.P. 5002/88 was dismissed. Apart from the above, the decision of the Supreme Court in 1997(4) SCC 753 supra is not against the dictum laid down in the judgment in O.P. 5002/88. On the other hand, the view expressed by the Supreme Court is that if the service before acquiring a superior educational qualification is also not taken into consideration, it will violate the very purpose to give incentive to the employee who acquired higher education. Therefore, we are of the view that the service rendered by the Diploma holder Asst Engineers before they are acquiring Degree qualification also should be taken into consideration for appointment as Asst. Executive Engineer. As mentioned earlier, as far as the present case is concerned, in view of the judgment in O.P. 5002/88, it has to be taken that the provision in R.5 brought under 1982 amendment is not in the statute and all promotions and appointments are to be made without reference to such provision. 21. In O.P. 2172/89, learned Single Judge of this Court had occasion to consider the claim for promotion to the post of Asst. Exe. Engineer in Harbour Engineering Branch of Ports Department made by a Diploma holder Asst. Engineer who acquired Degree qualification while in service as Asst. Engineer The special rules applicable to Harbour Engineering Branch of the Kerala Ports 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 Asst. Exe. Engineer is by transfer from the category of Asst. Engineers of the Harbour Engineering Branches of Kerala Ports Subordinate Services. The qualifications prescribed are (1) b.sc. Under the said rule, one of the methods of appointment to the post of Asst. Exe. Engineer is by transfer from the category of Asst. Engineers of the Harbour Engineering Branches of Kerala Ports Subordinate Services. The qualifications prescribed are (1) b.sc. Degree in Engineering (Civil) of a recognised University of India or (2) Associate Membership Diploma of the Institution of Engineers (India) in Civil Engineering. It is also provided that an Asst. Engineer with Degree qualification should have worked for not less than three years as an Asst. Engineer. Asst. Engineers with Diploma in Civil Engineering are also entitled to be posted as Asst. Exe. Engineers by transfer, provided they have a minimum period of 7 years' service out of which 5 years shall be as Asst. Engineer. A ratio of 3:1 of the total posts of Asst. Exe. Engineers shall be applied between Graduate and Diploma holders in the matter of appointment of Asst. Exe. Engineers. 22. The petitioner in O.P. 2172/89 entered service as Asst. Engineer as a Diploma Holder. He took Degree in Engineering in 1986. By that time, he had to his credit, 61/2 years of service as Asst. Engineer. On acquiring Degree qualification, he wanted to be treated as Degree holder Asst. Engineer with 61/2 years experience in November, 1986. His request was turned down on the ground that in order to consider his case, under the category of Degree holders, he has first to get entry in that category, which can be done only on his option. His case as graduate Engineer will be considered only after considering the claims of all persons who were in that category on the date of his acquisition of qualification or a later date, which he may choose. Learned Judge considered the question whether graduate Engineers and Diploma holders were to be governed by two separate seniority lists as contended by the Department and whether such a view is supported by the provisions of the general rules or the special rules. After elaborately considering the provisions, the learned judge came to the conclusion that there is nothing in the Special rules, enjoining the Government or Head of the Department to maintain two separate seniority lists. After elaborately considering the provisions, the learned judge came to the conclusion that there is nothing in the Special rules, enjoining the Government or Head of the Department to maintain two separate seniority lists. Learned judge noted 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.. As mentioned earlier, the existing special rules did not provide for two seniority lists of graduates and diploma holders. R.28(b)(i)(7) of the General Rule cannot also have application in the case, since Asst. Engineers, whether degree holders or diploma holders belong to the same category. Apart from the above, in the case of appointment by transfer, the question of promotion does not arise. Learned Judge took the view that when vacancy in the cadre of Asst. Exe. Engineer arises, depending on the qualification and experience as on the date of vacancy, appointment should be effected in accordance with the ratio of 3:1 between degree holders and diploma holders. Reference was made to the Bench decision in O.P. 5002/88 and it was held that the experience gathered by the petitioner while he was a diploma holder, cannot be wiped away while considering him for appointment as Asst. Exe. Engineer in the quota of graduates. 23. We are in full agreement with the view taken by the learned judge .that no two separate seniority lists would be required. A common seniority list has to be prepared on the basis of the date of entry in service to the feeder category and as and when vacancy arises in the post of Asst. Exe. Engineer, appointment by transfer has to be made from among the decree holders and diploma holders by applying the ratio on the basis of their qualification on the date on which the vacancy arises. O.P. No. 15008/93 24. Petitioner was promoted as Junior Engineer (later redesignated as Asst. Engineer) on 1.4.1967. He obtained degree in June, 1979. In Ext. P1(a) seniority list of Asst. Engineers as on 1.10.1985 published under Ext. P1 order dt. 27.5.1993, petitioner is shown as SI. No. 64 with date of promotion as 3.7.1971. 3rd respondent acquired degree earlier than the petitioner. Therefore, he was appointed as Asst. Exe. Engineer on 24.5.1989 whereas the petitioner was appointed on21.3.1990. Petitioner's representation Ext. P4 dt. In Ext. P1(a) seniority list of Asst. Engineers as on 1.10.1985 published under Ext. P1 order dt. 27.5.1993, petitioner is shown as SI. No. 64 with date of promotion as 3.7.1971. 3rd respondent acquired degree earlier than the petitioner. Therefore, he was appointed as Asst. Exe. Engineer on 24.5.1989 whereas the petitioner was appointed on21.3.1990. Petitioner's representation Ext. P4 dt. 29.1.1993 for assigning an earlier date for appointment as Asst. Exe. Engineer, taking into consideration his entire service as Asst. Engineer, was rejected under Ext. P5 order which was communicated to the petitioner by Ext. P6 order. In the provisional seniority list of Asst. Exe. Engineers (Civil) as on 30.4.1995 published as per Board's order dt. 14.6.1995, 3rd respondent is shown as SI. No. 10 with date of promotion 29.5.1989 and the petitioner is shown as SI. No. 45 with date of promotion 21.3.1990. 25. During the pendency of this original petition, on the basis of an order passed by a Bench of this Court in CMP 27179/93, petitioner was promoted as Executive Engineer by Board's order dt. 2.11.1995. Thereafter, he was promoted as Deputy Chief Engineer and he retired from service in the above post. According to the petitioner, if he had been granted his rightful promotion in the category of Asst. Exe. Engineer in the degree quota, he would have got promotions to the higher posts such earlier and he would have retired from service as Chief Engineer. He therefore, prays that he is entitled to notional promotion, arrears of salary and fixation of retirement benefits on that basis. 26. The facts pleaded regarding the date of appointment of the petitioner and 3rd respondent as Asst. Executive Engineer etc., are not in dispute in this case. The only point argued was whether the principle laid down by this Court in the judgment in O.P. 5002/88 could be applied in this case. According to the respondents, the decision in O.P. 5002/88 has to be reconsidered and that the belated claim put forward by the petitioner for earlier appointment to the post of Asst. Exe. Engineer cannot be accepted. 27. We have already come to the conclusion that as a result of the judgment in O.P. 5002/88, it has to be taken that the amendment brought in the year 1982 to R.55 of the Special Rules is to be treated as not introduced in the Special Rules at all. Exe. Engineer cannot be accepted. 27. We have already come to the conclusion that as a result of the judgment in O.P. 5002/88, it has to be taken that the amendment brought in the year 1982 to R.55 of the Special Rules is to be treated as not introduced in the Special Rules at all. If that be so, the petitioner was entitled for appointment to the post of Asst. Exe. Engineer on the basis of his total period of service as Asst. Engineer before appointment was given to the 3rd respondent. Petitioner's claim cannot be rejected on the ground of delay as seniority list of Asst Engineers was published only on 27.5.1993 and the provisional seniority list of Asst. Exe. Engineers only on 14.6.1995. Respondents 1 and 2 are directed to consider the accelerated promotion which the petitioner could have obtained in higher post on the above basis and pass appropriate orders thereon as expeditiously as possible. There will be a further direction to revise petitioner's retirement benefits on the above basis, if such refixation is required. We make it clear that the petitioner will not be entitled to any arrears of salary on this basis. O.P. No. 1392 of 1995 28. In this original petition, there are two petitioners. They were appointed as Junior Engineers (later redesignated as Asst. Engineer) on 24.4.1965. They were diploma holders at that time. Petitioners acquired degree in B.Sc. Engineering in June 1979 and June, 1978 respectively. They were appointed as Asst. Exe. Engineers in degree quota on 21.3.1990 and 13.2.1990 respectively. Later, their promotions were modified as in diploma quota w.e.f. 5.9.1989 and 13.2.1990 respectively. In Ext. P1 (a) final seniority list of Asst Engineers on 1.10.1985 published as per Ext. P1 order dt. 27.5.1993, petitioners 1 and 2 were shown as SI. Nos. 28 and 38 with date of promotions 6.10.1966. 3rd respondent who is impleaded in a representative capacity, is shown as SI. No. 56 with date of promotion 14.12.1970. 3rd respondent, who had obtained degree in Engineering in November, 1969, was given appointment as Asst. Exe. Engineer on 22.2.1989. Eventhough, petitioners had submitted representations dt. 27.2.1985 and 27.11.1985 for appointment as Asst. Exe. Engineer, no orders were passed. Subsequently, in the light of the judgment of this Court in O.P. 5002/88, Exts. P4 and P5 representations dt 8.8.1994 were filed for giving them earlier date of appointment as Asst. Exe. Engineer on 22.2.1989. Eventhough, petitioners had submitted representations dt. 27.2.1985 and 27.11.1985 for appointment as Asst. Exe. Engineer, no orders were passed. Subsequently, in the light of the judgment of this Court in O.P. 5002/88, Exts. P4 and P5 representations dt 8.8.1994 were filed for giving them earlier date of appointment as Asst. Exe. Engineer. These representations were rejected under Ext. P6 order dt. 29.10.1994. 29. During the pendency of the original petition, a provisional seniority list of Asst. Exe. Engineers (Civil) as on 30.4.1995 was published by the Chief Engineer by order dt. 14.6.1995 in which 3rd respondent is shown as SI. No. 5 with date of promotion 22.2.1989 and the petitioners were shown as SI. Nos. 25 and 35 with date of promotion 5.9.1989 and 13.2.1990. 30. Pursuant to order passed by this Court on 25.10.1995 in C.M.P. 2514/95, petitioners were given promotion as Executive Engineers by Board's order dated 2.11.1995. Later 1 st petitioner got promotion as Deputy Chief Engineer and he retired from service holding the above post. 2nd petitioner also retired from service, but holding the post of Executive Engineer. According to the petitioners, if the seniority from the date of first appointment to the category of Asst. Engineer was taken into consideration for appointment as Asst. Exe. Engineer in the degree quota, they would have got promotion to higher posts before their retirement. They therefore, seek notional promotion and revision of retirement benefits. 31. In this case also, respondents put forward contentions similar to those raised by the respondents in O.P. 15008/93. For the same reasons which we have given in O.P. 15008/93, we are inclined to grant the prayer made by the petitioners in this original petition also. Therefore, there will be a direction to respondents 1 and 2 to reconsider the date assigned to the petitioners for appointment to the post of Asst. Exe. Engineers taking into consideration their entire period of service as Asst. Engineers for appointment in the quota due to degree holders and pass an order granting them notional promotion in higher posts on the above basis. There will be a further direction to revise and refix the pensionary benefits due to the petitioners, if it is so required on the basis of the revised dates of promotion to the higher posts, as expeditiously as possible. There will be a further direction to revise and refix the pensionary benefits due to the petitioners, if it is so required on the basis of the revised dates of promotion to the higher posts, as expeditiously as possible. It is made clear that petitioners will not be entitled to any arrears of salary on the basis of the accelerated promotion they may obtain as a result of implementing this judgment. The original petitions are allowed to the above extent.