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Kerala High Court · body

2002 DIGILAW 194 (KER)

T. K. Georgekutty v. State of Kerala

2002-03-19

K.A.ABDUL GAFOOR

body2002
Judgment :- All these cases relate to the implementation of Ext.P5. G.O.(P) 102/84/PW F & PD dated 4.7.2000 marked in O.P.No.3992/2001. This Government Order is exhibited in all Original petitions. I will refer to this Government Order as impugned Government Order for convenience. As per this Government Order, personnels in different categories in the Public Works and Irrigation Department are ordered to be deployed to local self government institutions. O.P.Nos.3992/2001, 9936/2001, 29165/2001, 30184/2001, 30191/2001, 37287/2001 and 38063/2001 were filed by Asst. Engineers and Asst. Executive Engineers of the Public Works Department. This batch of cases will be described as 1st set of cases. O.P.No.8315/2001 has been filed by Asst. Executive Engineers in irrigation department. This will be described as second set of cases’. O.P.No.28909/2000 and O.P.No.31761/2001 were filed by Engineering staff working in Local Self Government Department. These cases will be treated as ‘third set of cases’. 2. The petitioners in each set of cases have their own grievances with regard to the implementation of the impugned Government Order. Petitioners in 1st and 2nd sets of cases were originally appointed in the erstwhile unified Public works Department. Later, for administrative convenience and also for functional convenience, the unified Public Works Department had been bifurcated into Public Works Department (P.W.D.) and Irrigation Department (I.D.) as per Ext.P1 in O.P.No.3992/01. This Government Order will be referred to as ‘bifurcation G.O.’, for convenience. The existing members of staff were given a right to opt for either of these new departments, according to their convenience. The vacancies in the higher caregories arisen after the bifurcation were filled up based on the seniority of the optees in the respective feeder categories. This later resulted in erstwhile juniors who had opted I.D. getting accelerated promotion a compared to their counter parts in P.W.D. Thus persons with less length of continuous service are working as Asst. Executive Engineers of Executive Engineers in I.D. as compared to their counter parts in P.W.D. who are working as Asst. Engineers or Asst. Executive Engineers. This is the background of the grievance of the petitioners in the 1st set of cases. They submit that it may so happen, on implementation of the impugned government order, an erstwhile senior working under his erstwhile junior. This will create heart burn to several. 3. Grievance of the petitioners in the second set of cases, the Asst. Executive Engineers. This is the background of the grievance of the petitioners in the 1st set of cases. They submit that it may so happen, on implementation of the impugned government order, an erstwhile senior working under his erstwhile junior. This will create heart burn to several. 3. Grievance of the petitioners in the second set of cases, the Asst. Executive Engineers belonging to the present Irrigation Department (I.D) is that deployment in terms of the impugned G.O. shall be first, posting those, who had opted in terms of para 12 of the impugned Government Order. These petitioners have not so opted. Therefore, they shall not be deployed to Local Self Government Institutions, if sufficient number of opted candidates are available. 4. The grievance of the petitioners in 3rd set of cases is slight different. They were appointed as members of engineering staff in Local Self Government department. They have no sufficient chances for their promotion as compared to the chances available in P.W.D. and I.D. Now implementing the impugned G.O. incumbents from I.D. and P.W.D. are deployed in the higher categories like Assistant Engineers, Assistant Executive Engineers, Executive Engineers, Superintending Engineers and also Chief Engineer in the Local Self Government Department. So the petitioners will not get promotion. Their promotion chances are not taken care of when higher level officers are deployed from the said two departments. Necessarily depending from the said two departments. Necessarily depending upon the strength of engineering staff in the Local Self Government Department at least some posts in the higher categories shall be reserved to them rather than filling up the entire posts by deployment of the incumbents in the higher category from P.W.D and I.D. 5. Of course the bifurcation Government Order was issued with reference to functional specialisation. Taking into account situation then prevailing and convenience of the incumbents concerned, the staff of the erstwhile unified Public Works Department exercised their option and are continuing either in P.W.D or I.D. depending upon their options. They are consequently having their respective seniority and chances of promotion, in their respective departments. It was at that point of time, amendment to the Constitution of India was effected by introducing Parts IX and IX A with regard to more effective functioning of Grama Panchayats and Municipalities. They are consequently having their respective seniority and chances of promotion, in their respective departments. It was at that point of time, amendment to the Constitution of India was effected by introducing Parts IX and IX A with regard to more effective functioning of Grama Panchayats and Municipalities. Article 243 G provides that: “Subject to the provisions of Constitution, the Legislature or a State may, by, law, endow the Panchayats with such powers and authority and may be necessary to enable them to function as institutions of Self Government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats at the appropriate level, subject to such conditions as may be specified therein with respect to: (a) the preparation of plans for economic development and social justice; (b) the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule. Eleventh Schedule to the Constitution of India specifies several items as 1 to 29 which includes Agriculture including agricultural extensions. Minor irrigation, Water management and watershed development, Rural housing, Drinking water, Roads culverts, bridges, ferries, water ways and other means of communications, Rural electrification including distribution of electricity, Non-conventional energy sources, etc. These specified items require, necessarily, the service of engineers at different levels. These works were being undertaken by the respective departments like P.W.D and I.D. By reason of strengthening the Local Self Government institutions including Grama panchyats, certain functions discharged by the P.W.D. and I.d. have now to be attended to by the Panchayats and Municipalities. On the basis of these provisions in the Constitution of India and in the light of Kerala Panchayath Raj Act and the Rules made there under, those who were engaged for these works undertaken by the respective departments, have to be redeployed to the Local Self Government institutions. It is, thus, a Constitutional necessity. It is in that regard, the impigned Government Order had been issued. For that purpose, Government constituted a committee on decentralisation of powers which submitted its report for stengthening Local Self Government Institutions. It was in the above circumstances, the impugned G.O. had been issued. It is thus intended to satisfy the Constitutional requirement. So it has to be implemented at any cost. Its implementation cannot in any way be kept in abeyance. It was in the above circumstances, the impugned G.O. had been issued. It is thus intended to satisfy the Constitutional requirement. So it has to be implemented at any cost. Its implementation cannot in any way be kept in abeyance. It is necessary to implement the same and deploy necessary to implement the same and deploy necessary engineering staff to the service of Local Self Government institutions so that constitutional objectives in Part IX and IX A of the Constitution of India be achieved at the earliest strengthening the Local Self Government Institutions. So the impugned government order is not in any way unreasonable or arbitrary. Its implementation does not in any way prejudice any incumbent deployed from P.W.D. or I.D. Their conditions of service are not in any way adversely affected. 6. The grievance vioced by the respective petitioners, has to be examined in this background. Of course, based on the bifurcation G.O. the respective incumbents in the erstwhile unified P.W.D. had exercised option either to come over to I.D. or to continue in P.W.D. in such circumstances, it so happened that certain juniors opted to I.D. got accelerated promotion as compared to their seniors who opted to continue in P.W.D. That does not have any bearing on the implementation of the impugned Government order. They are not thrown away from their opted departments. They continue in their respective departments. They are only, for the time being, redeployed to Local Self Government Institutions to manage certain works there. Therefore, their seniority is in no way affected. Whatever promotion chances that may occur in their respective parent departments will still be available to them. Therefore, this is only a transfer. It may happen that an Assistant Executive Engineer from P.W.D. may have to work under an Executive Engineer from I.D. who had been an erstwhile junior in the former unified P.W.D. long before bifurcation. That depends upon working out of bifurcation G.O. and effect of the option exercised. It cannot be taken as a prejudice caused due to the implementation of the impugned government order. It is made clear that the Chief Engineer who has to give posting to the incumbents deployed, shall, as far as possible, post the incumbents in such a manner to avoid an erstwhile senior working under an erstwhile junior, to the possible extent, without taking it as a mandatory direction. It is made clear that the Chief Engineer who has to give posting to the incumbents deployed, shall, as far as possible, post the incumbents in such a manner to avoid an erstwhile senior working under an erstwhile junior, to the possible extent, without taking it as a mandatory direction. It will be helpful to keep the morale of the service. Necessarily that will relieve the main grievance voiced in 1st set of cases. 7. The works specified in 11th schedule to the Constitution of India relating to housing, roads, irrigation projects etc. are now under the control of Local Self Government Department. It is for the Chief Engineer concerned to deploy person, if necessary, based on the qualification, experience acquired or functional specialisation as the case may be, depending upon the departments from which they are deployed to the extent possible. 8. The grievance voiced in the 2nd set of cases is very simple. According to the petitioners therein, they have not opted for deployment in terms of the impugned government order. There are several other incumbents opted for such deployment. If there are sufficient optees in the categories of Assistant Executive Engineer, necessarily, the deployment shall be bassed on such option and such posting shall be based on juniority or seniority as the case may be, subject to the condition that they shall be transferred out to their parent department on completion of particular period of time. This will be three years as specified in the impugned government order itself. Thus the main grievance voiced in the second set of cases will stand redressed, if such a course of action is adopted. 9. Another grievance is that before deployment a notification shall be issued as provided for in para 4(xvii) of the impugned order. The post transferred to local governments including those through deployment should be notified in the Gazette as per the provisions of Kerala Panchayath Act, 1994 and Kerala Municipalities Act, 1994. This is only a notification regarding the number of posts in the concerned categories. Necessarily as and when redeployment takes place, Government shall issue appropriate notification. 10. Admittedly by the first respondent, petitioners in the 3rd set of cases are members of engineering staff originally appointed and continuing so in the local self government department in different categories. As per the impugned Government Order several overseers, Assistant Engineers, Asst. Necessarily as and when redeployment takes place, Government shall issue appropriate notification. 10. Admittedly by the first respondent, petitioners in the 3rd set of cases are members of engineering staff originally appointed and continuing so in the local self government department in different categories. As per the impugned Government Order several overseers, Assistant Engineers, Asst. Executive Engineers, Executive Engineers and Superintending Engineers are deployed to local self government departments. Necessarily taking into account the strength of the Engineering staff, in different categories, in the local self government department, few posts in the categories of Asst. Engineer, Asst. Executive Engineer and in the category of Executive Engineer be reserved for promotion of qualified hands from among the Engineering staff of the Local Self Government Department. It is only proper that they shall not be stagnated in the present post when their department grows larger because of the amendment of the Constitution and consequent strengthening of local self government institutions. The Government in Local Self Government Department shall consider this aspect and pass appropriate orders at any rate within 6 months from the date of receipt of a copy of this judgment. This will necessarily redress the grievance voiced in the third set of cases. 11. Along with the same the anomaly if any arising out of implementation of Ext.P4 Government Order marked in 28909/00 shall also to be attended to and appropriate order shall be passed by the Government within the same time frame. 12. It is stated in the impugned government order that Chief Engineer deployed to Local Self Government Department shall be from PWD. On the other hand the existing incumbent deployed is from ID. This also is a matter for the Government to consider for rectification. Accordingly original petitions are disposed of as follows: (1) Government shall pass appropriate order with regard to petitioners in 3rd set of cases as per the direction in para (10) above. (2) Government shall immediately identify officers concerned for redeployment and shall deploy them to the concerned Local Self Government institutions. (3) State Government shall pass appropriate orders if necessary with regard to rectification of posting of Chief Engineer taking into consideration orders in the impugned government order. (4) Government shall also, within 4 months, issue notification in terms of para 4(xvii) of the impugned Government order. (3) State Government shall pass appropriate orders if necessary with regard to rectification of posting of Chief Engineer taking into consideration orders in the impugned government order. (4) Government shall also, within 4 months, issue notification in terms of para 4(xvii) of the impugned Government order. (5) Appropraite orders rectifying the anomaly, it any, in implementing Ext.P4 government order marked in O.P.No.28909/00 shall also be passed within six months.