Research › Search › Judgment

Kerala High Court · body

2001 DIGILAW 729 (KER)

E. M. Dharmarajan v. State of Kerala

2001-12-07

CYRIAC JOSEPH

body2001
Judgment :- Cyriac Joseph, J. 1. The petitioner is an Asst. Engineer in the Municipal Common Service. He joined service as Overseer Grade II on 19.9.1970. At the time of his entry in service he was holding only a Diploma in Engineering. He was promoted to the Cadre of Overseer Grade I, on 18.7.1975. While he was working as Overseer Grade I, he passed B.Tech (Civil) Examination of Calicut University in June, 1984. The fact that he passed B. Tech (Civil) Examination in June, 1984 is recorded in his Service Book. The petitioner was promoted to the cadre of Asst. Engineer on 3.12.1985 and since then he has been working as Asst. Engineer. He was promoted to the cadre of Asst. Engineer in the quota ear-marked for Engineering Diploma holders. Since the petitioner had acquired B. Tech (Civil) degree in Engineering before his promotion to the cadre of Asst. Engineer, he claims promotion to the cadre of Asst. Executive Engineer in the quota reserved for Engineering Degree holders. It is contended that if his case was considered for promotion in the quota reserved for Engineering Degree holders, he would have been promoted as Asst. Executive Engineer at least in 1993. It is stated that the petitioner submitted representations to the authorities in 1996, 1997 and 1998 requesting them to include his name in the quota for Engineering Degree holders with effect from the date of promotion to the post of Asst. Engineer on 3.12.1985 and to give him promotion to the post of Asst. Executive Engineer on that basis. Since there was no response to the above mentioned representations, the petitioner submitted another representation dated 14.9.1999 to the first respondent Government of Kerala. When there was delay in considering that representation, the petitioner filed O.P. No. 26064/1999 which was disposed of by this Court on 22.10.1999 directing the first respondent to consider and pass orders on the representation within three months from the date of receipt of a copy of the judgment. Thereafter, the first respondent passed Ext. P7 order dated 3.4.2000 rejecting the request contained in the representation of the petitioner. In Ext. P7 the first respondent has stated that even though the petitioner subsequently acquired the Degree in Engineering, his entry in service was not as an Engineering graduate and therefore he should wait for his promotion to the cadre of Asst. P7 order dated 3.4.2000 rejecting the request contained in the representation of the petitioner. In Ext. P7 the first respondent has stated that even though the petitioner subsequently acquired the Degree in Engineering, his entry in service was not as an Engineering graduate and therefore he should wait for his promotion to the cadre of Asst. Executive Engineer based on his seniority in the quota for Diploma holders. It is also stated that the petitioner's promotion to the cadre of Asst. Engineer with effect from 3.12.1985 was on a purely provisional basis in one of the vacancies of Asst. Engineers existing at that time and it was subject to the condition that he would be reverted when a regular hand advised by the Public Service Commissions joins duty. It is further stated that the petitioner's regular promotion as Asst. Engineer took place only on 30.7.1990 when his turn for promotion as Asst. Engineer came in the quota for Diploma holders. Aggrieved by Ext. P7 order of the Government the petitioner has filed this writ petition praying for the issuance of a writ of certiorari or other appropriate writ, direction or order calling for the records leading to Ext. P7 and to quash the same. The petitioner has also prayed for a writ of mandamus or other appropriate writ, direction or order to the first respondent to reckon the seniority and rank of the petitioner in the cadre of Asst. Engineer in the quota for Engineering Degree holders with effect from 3.12.1985 and to promote him to the post of Asst. Executive Engineer on that basis with all attendant benefits. 2. The first respondent has filed a counter affidavit disputing the claims raised by the petitioner in the writ petition and reiterating the stand taken in Ext. P7. It is averred in the counter affidavit that Ext. P7 order is perfectly legal and valid. 3. During the course of Arguments, Shri B. Raghunathan, learned counsel for the petitioner submitted that the petitioner did not dispute the averment in the counter affidavit that the petitioner's promotion to the cadre of Asst. Engineer was regularized only with effect from 30.7.1990 and therefore he was entitled to claim seniority in the cadre of Asst. Engineer only with effect from 30.7.1990. However, learned counsel asserted that the petitioner was entitled to promotion to the cadre of Asst. Executive Engineer in the quota for Degree holders. Engineer was regularized only with effect from 30.7.1990 and therefore he was entitled to claim seniority in the cadre of Asst. Engineer only with effect from 30.7.1990. However, learned counsel asserted that the petitioner was entitled to promotion to the cadre of Asst. Executive Engineer in the quota for Degree holders. 4. In paragraph 5 of the counter affidavit filed by the first respondent, it is stated as follows : 5. "Promotion to the Cadre of Asst. Executive Engineer in Municipal Common serviced is regulated by the method of appointment specified in G.O. (MS) No. 22/76/LA&SWD dated 30.1.76 as per which in a block of 25 vacancies the Ist, 2nd, 4th, 5th, 6th ,7th, 9th, 10th, 11th , 12th, 14th, 15th, 16th, 17th , 19th, 20th , 21st, 22nd, 24th and 25th places are set apart for degree holders who were recruited as Assistant Engineer directly by the Public Service Commission. As per the above order, the 3rd, 8th , 18th and 23rd places are set apart for diploma holder Assistant Engineers and the 13th vacancy is earmarked for Certificate holding Assistant Engineers. The petitioner even though has acquired Engineering Degree after his entry in service, was not recruited through Public Service Commission in the quota set apart for Engineering Degree holders in service or in the open quota. Therefore he can be considered only in the turn for diploma holders for his further promotion as Assistant Executive Engineer reckoning his seniority for such promotion with effect from 30.7.90, the date of his regular promotion as Assistant Engineer." A copy of G.O. (MS) No. 22/76/LA&SWD dated 30.1.76 has been made available by the learned Govt. Pleader for my perusal. There is nothing in the Govt. order to indicate that the vacancies in the cadre of Asst. Executive Engineers reserved for Engineering Degree holders can be filled up only by degree holding Asst. Engineers directly recruited by the Public Service Commission. Therefore, the averments in para 5 of the counter affidavit are factually wrong to the above extent. The learned Govt. Pleader did not dispute the fact that as per G.O. (MS) No. 96/71/LAD dated 7.7.1971 and G.O. (MS) No. 22/76/LA&SWD dated 30.1.1976 the method of appointment to the post of Asst. Executive Engineer is by promotion from the cadre of Asst. Engineers and that different quotas are fixed for Degree holders, Diploma holders and Certificate holders. The learned Govt. Pleader did not dispute the fact that as per G.O. (MS) No. 96/71/LAD dated 7.7.1971 and G.O. (MS) No. 22/76/LA&SWD dated 30.1.1976 the method of appointment to the post of Asst. Executive Engineer is by promotion from the cadre of Asst. Engineers and that different quotas are fixed for Degree holders, Diploma holders and Certificate holders. It was also not disputed that in the rules it is not stipulated any where that the Degree holding Asst. Engineers to be promoted to the cadre of Asst. Executive Engineers in the quota reserved for Degree holders should be persons who were recruited by the Public Service Commission in the original cadre in the quota for Degree holders. In such circumstances, what is relevant is the qualification possessed by the incumbent on the date of his promotion to the post of Asst. Engineer. On the date of promotion as Asst. Engineer if a person had already acquired Engineering Degree, he is entitled to be counted among Degree holding Asst. Engineers, notwithstanding the fact that he was only a diploma holder when he was originally selected and appointed in the lower cadre. What the rule stipulates is that the incumbent should possess a Degree in Engineering. The rule does not stipulate that the Degree should have been obtained before his entry in service in the lower cadre. The stand taken by the Government in Ext. P7 order and in the counter affidavit is not supported by the provisions in the rules governing the method of appointment. There is also no rationale for insisting that a Degree holding Asst. Engineer will be given promotion as Asst. Executive Engineer only if he had acquired the Engineering Degree before his entry in service in the category of overseer. Since the petitioner is a regularly promoted Asst. Engineer and since he had acquired the qualification of Degree in Engineering long before his promotion to the cadre of Asst. Engineer he is entitled to be considered for promotion to the cadre of Asst. Executive Engineer in the quota reserved for Degree holders on the basis of his seniority in the cadre of Asst. Engineer with reference to the date of his regular promotion, i.e. 30.7.1990. 5. Therefore, Ext. P7 order is quashed. The first respondent shall consider the petitioner for promotion to the cadre of Asst. Executive Engineer in the quota reserved for Degree holders on the basis of his seniority in the cadre of Asst. Engineer with reference to the date of his regular promotion, i.e. 30.7.1990. 5. Therefore, Ext. P7 order is quashed. The first respondent shall consider the petitioner for promotion to the cadre of Asst. Executive Engineer in the quota reserved for Degree holders on the basis of his seniority with reference to the date of his regular promotion as Asst. Engineer, i.e. 30.7.1990. Since the petitioner has been making representations to the Government and since the petitioner had approached this court complaining about the inaction of the Government and also against overlooking him in the matter of promotion, the petitioner shall be given promotion to the cadre of Asst. Executive Engineer with retrospective effect from the date on which he would have been promoted if he was considered in the quota for Degree holders. He will also be entitled to consequential benefits like seniority, notional fixation of pay etc. but not to any arrears of salary as he did not work in the post. It is to be noted that in this writ petition respondents 3 and 4 were impleaded in a representative capacity and notice was given to all parties who are likely to be effected through advertisement in newspapers pursuant to orders passed by this court. 6. In the light of the above directions, the first respondent shall reconsider Ext. P1 representation and pass fresh orders within two months from the date of receipt of a copy of this judgment. The original petition stands disposed of in the above terms. There will be no order as to costs.