JUDGMENT
Jawahar Lal Gupta, C.J.
1. These three cases relate to the inter se dispute between the Assistant Engineers who possess qualifications of Degree and Diploma. The controversy centers on the interpretation of the provisions contained in the Kerala Engineering Service (Civil and General Branch) Rules, 1965. The facts as appearing from the record in W.A. No.762 of 2003 may be briefly noticed.
2. The Kerala Engineering Diploma Holder’s Association approached this Court through a Petition under Article 226 of the Constitution. Their complaint was that the vacancies in the cadre of Assistant Executive Engineers were being filled up by promoting the Graduate Engineers and the share as available to the Diploma holders under the Statutory Rules was not being given to them. A number of persons who were eligible had been overlooked. Thus, the petitioner prayed that a writ of mandamus be issued directing the State Government to fill up the posts of Assistant Executive Engineers by promotion from the select list, a copy of which had been produced as Ext.P1. No counter-affidavit was filed despite service by the Department.
3. The learned single Judge considered the matter. It was found that the Government had not taken any decision to keep the posts vacant. There was no justification for denying promotion to the eligible persons. Thus, the petition was disposed of with a direction to the respondents to fill up the vacancies in the cadre of Assistant Executive Engineers “by promotion of Diploma holders among the Assistant Engineers in accordance with law within three months from the date of receipt of a copy of this judgment.”
4. Aggrieved by this judgment, Ms. Syamala, an Assistant Engineer filed a petition for leave to appeal. Leave was granted. Thereafter, the appellant has filed various documents, Government Orders etc. on record. Her claim in anutshell is that Graduate Engineers have a preferential right for promotion to the posts of Assistant Executive Engineers vis-a-vis the Diploma holders. It is further claimed that an Assistant Engineer possessing the qualification of Degree, who has been appointed before a Diploma holder, is senior and has to be considered before any Diploma holder can be considered for promotion to the post of Assistant Executive Engineer. If a Degree holder is ignored, provisions of the Rules shall be violated. In any event, the action shall be violative of the guarantee enshrined in Articles 14 and 16.
5. The claim has been controverted by the respondents in the appeal by filing a counter affidavit and placing documents on record.
6. O.P. No. 17897 of 1997 has been filed by the Assistant Engineers holding the qualification of Degree in Engineering. Their prayer is to quash the orders by which various Diploma holders have been promoted as Assistant Executive Engineers. Copies of the impugned orders have been produced as Exts.P1, P3 and P4.
7. Similarly, O.P. No.54 of 1998 has been filed by the Graduate Engineers. They pray that a writ of mandamus be issued to the respondents to promote them as Assistant Executive Engineers in accordance with the Government Order dated October 3, 1994. By this order, it was directed by the Government that “despite the quota prescribed in Special Rules an Assistant Engineer who possesses Diploma will not be eligible for promotion to the category of Assistant Executive Engineers over a graduate Assistant Engineer having longer service otherwise rendered ineligible for promotion to the post of Assistant Executive Engineer.”
8. The claim is contested by the respondents. Counter-affidavits have been filed.
9. Learned counsel for the parties have been heard. On behalf of the appellant in the appeal and the writ petitioners, it has been contended that Graduate Engineers have better qualifications. Thus, they are entitled to preferential treatment. Their claim for promotion has to be considered before anyone junior to them can be promoted to the posts of Assistant Executive Engineer. It is also submitted that the instructions issued by the Government embody a rule of general application and have to be followed in the present case for promotion to the posts of Assistant Executive Engineer in the Irrigation Branch.
10. The claim as made by the petitioners has been controverted by the counsel for the respondents. It has been pointed out that there are special rules governing the service. The rules lay down the quota and the method of appointment. The promotions have been made in strict conformity with the provisions of the rules. These are not violative of the guarantee enshrined in Articles 14 and 16 of the Constitution. The Government Order is not applicable.
11. On the basis of the contentions as raised by the learned counsel for the parties, the two questions that arise for consideration are:-
(1) Is the action of the Departmental promoting respondent Nos. 3 to 17 in O.P.No. 17897 of 1997 and the direction issued by the learned single Judge, which has been challenged in W.A.762 of 2003, contrary to the rules?
(2) Is the action violative of Articles 14 and 16 of the Constitution and is the Government Order applicable? Regarding 1 :- 12. Learned counsel for the writ petitioners/appellants in these cases have contended that they are senior to the respondents. They have better qualifications. Thus, they have a right to be promoted before them. The action does not conform to the rules. Is it so?
13. Admittedly, promotion to the posts in the service is governed by statutory rules. These rules govern the posts in the cadre of Chief Engineer, Superintending Engineer, Executive Engineer and Assistant Executive Engineer. Rule 3 provides for the method of appointment to various categories of posts. So far as the post of Assistant Executive Engineer is concerned, it has to be filled up by promotion from amongst Assistant Engineer as well as Head Draftsmen. Rule 4 lays down the qualifications. The relevant provision is contained in Clause (d). It inter alia provides as under: –
“(d) An Assistant Engineer shall not be eligible for appointment as Assistant Executive Engineer unless-
(1) he has rendered service under Government for a total period of not less than 7 years and possesses the qualification mentioned in item (i) or in S.A in item (ii) of the Annexure, or, (2) he has rendered service under Government for a total period of not less than 7 years and possesses any diploma specified in S.B in item (ii) of the Annexure. Note :- Only those Assistant Engineers who have passed the Account Test (Lower), the Kerala P.W.D. Manual Test and the Kerala P.W.D. Test shall be eligible for appointment as Assistant Executive Engineers." 14. The method of promotion to the post of Assistant Executive Engineer is laid down in Rule 5(b). It provides as under:- "(b) Vacancies in the category of Assistant Executive Engineers shall be filled up from among Assistant 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 Section 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:
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.
Note 1:- The separate quota allotted to the Certificate Holders will be abolished as soon as the holders of the S.M.T. Overseers Certificate and Draftsman Certificate of the College of Engineering, Guindy in service are absorbed as Assistant Engineers. Thereafter the ratio will revert to 3:1 on cadre strength between Degree holders and diploma holder.
Note 2:- The ratio fixed for promotion to the cadre of Assistant Executive Engineers will
be applied to the cadre strength of Assistant Executive Engineers as a whole, i.e., to the total
number of posts of Assistant Executive Engineers in the Department and not to vacancies as
they arise. Separate seniority lists will be maintained for the purpose in the cadre of Assistant
Executive Engineers for degree holders/diploma holders and certificate holders and promotions
and reversions of each category of Officers will be confined to the quota allowed for each
category within the cadre strength notwithstanding anything contained in the Kerala State and
Subordinate Services Rules,”
A perusal of the above provision shows that an Assistant Engineer is eligible for promotion to the post of Assistant Executive Engineer if he has rendered a total period of not less than three years of service and possesses the qualification of a Degree in Engineering as specified in the rules. In the case of Diploma holder the requisite period of service is 7 years. So far as promotion to the posts of Assistant Executive Engineers is concerned, the provision in Rule 5 postulates three sources viz. the Degree holders, whose qualifications are mentioned in Section A; Diploma holders, whose qualifications are mentioned in Section B and Draftsmen possessing the requisite qualifications. The posts in the cadre have to be filled up in the ratio 75:20:5.
15. Note 2 of the Rule is very significant. It postulates that the ratio fixed for promotion “will be applied to the cadre strength ….. as a whole.” It is reiterated that it shall apply to “the total number of posts ……….. in the Department and not to vacancies as they arise.” It further provides that “separate seniority lists will be maintained for the purpose in the cadre of Assistant Executive Engineers for degree holders/diploma holders and certificate holders and promotions and reversions of each category of Officers will be confined to the quota allowed for each category.”
16. Thus, it is clear that the ratio as fixed in Rule 5(b) applies to the whole cadre. The Rule postulates that the posts of Assistant Executive Engineers have to be filled up from the three sources in the ratio of 75:20:5. Separate seniority lists have to be maintained. The Rule makes separate channels for promotion of the Graduates, Diploma holders and Certificate holders. The obvious intention is that if a post is vacated by a Degree holder it shall be filled up by appointment of an Assistant Engineer who is a ‘graduate’ in Engineering. Similarly, if a Diploma holder working as an Assistant Executive Engineer is promoted to a higher post or retires from service, the resultant vacancy shall go to a person belonging to that category. Thus, the Rules lays down three separate sources. It allots a different share to each category. The share has to be maintained continuously. Significantly, the Rule does not make any reference to a person’s seniority in the cadre of Assistant Engineers. It may be relevant only in respect of the persons belonging to the particular source. The inter se seniority of all the sources is not at all relevant. Why?
17. The Scheme of the Rules appears to be that the posts in the cadre of Assistant Executive Engineers have to be filled up from three sources viz. the graduates, the Diploma holders and the Draftsmen who have a Certificate. The total number of posts have been divided in the ratio of 75:20:5. Thus, if there are 100 posts, the three categories shall get 75, 20 & 5 as their respective shares. Since the quota rule is applicable to the posts and not the vacancies, the rule provides for three separate lists. Whenever a post is vacated by a person, the resultant vacancy is to be filled up by the promotion of an officer from that source.
18. It is true that a Degree is a higher qualification than a Diploma and the Certificate, Thus, the Degree holders have been given the lion’s share of the posts. The other two categories have only a combined share of 25% of the total posts. Still further, a Degree holder becomes eligible for promotion as an Assistant Executive Engineer after 3 years of service as an Assistant Engineer. As against this, a Diploma holder has to work for 7 years. Resultantly, the Degree holders have been given a preferential treatment under the Rule. To the extent the Rules provide for preference, the officers are entitled to it. But, they cannot ask for more than what the Rule permits. The Rule does not contemplate promotion on the basis of seniority as an Assistant Engineer by putting all the officers into one pool. The Court cannot by the process of interpretation, add a new method to the provision. It appears that the provision is fair. It must be implemented as it is.
19. In this background, we can consider the 3 cases. The first is W.A. No.762 of 2003. This case arises out of the judgment in O.P. No.36798 of 2002. While considering the Writ Petition, the learned single Judge has only directed that the vacancies in the cadre of Assistant Executive Engineers shall be “filled up by promotion of Diploma holders …….. in accordance with law within three months …….” The direction is not shown to be in any way contrary to the statutory provision in the rules. In fact, we find that it is in strict conformity with the provision. Resultantly, it cannot be said that the order is violative of any rule or law.
20. In O.P. No. 17897 of 1997 the complaint of the writ petitioners is that the promotion of respondent Nos. 3 to 17 is not in conformity with the rules. However, learned counsel for the writ petitioners is unable to refer to anything on the record to show that the Government has promoted persons in excess of the quota of 20:5 as fixed under the rule. Thus, it cannot be said that the orders of promotion, which were periodically issued, vide Exts.P1, P3 and P4 were not in conformity with the rules.
21. In view of the above, the first question is answered against the petitioners/appellant.
Regarding 2 :
22. Counsel for the petitioners/appellant contended that the promotion of a junior graduate Engineer in supersession of the claim of a senior’s violative of Articles 14 and 16. It is further contended that the order issued by the Government viz. Ext.P7 in O.P. No. 17897 of 1997 should have been made applicable in the Irrigation Department to the promotion of respondent Nos. 3 to 17.
23. A perusal of the Rules quoted above and more particularly Note 2 of Rule 5(b) clearly shows that all the posts in the cadre have been put in three watertight compartments. 75% posts have been given to the Degree holders. 20% posts have been assigned to the Diploma holders. 5% posts fall to the share of Certificate holders. It has been further provided that separate seniority lists of three categories of Assistant Executive Engineers shall be maintained. In view of the Scheme of the Rule and as already noticed above, the vacancies, which become available for one category have to be filled up from that category alone.
24. Another fact, which deserves mention, is that the Diploma holders become Assistant Engineers after long years of service. Similarly, even the Certificate holders have to serve for a long period of time before their turn for promotion to the posts of Assistant Engineers comes. As against this, the graduate Engineers, who are directly recruited to the posts of Assistant Engineers are fairly young. Still further, they become eligible for promotion on completion of 3 years. As against this, the Diploma holders and Certificate holders have to serve for 7 years before becoming eligible. Thus, there is wide gap in the age. The Degree holders being younger retire after many years. The Diploma holders/Certificate holders being older retire much sooner. They have a shorter span of service in the cadre of Assistant Executive Engineers. A perusal of the statutory rules indicates that it was with the object of ensuring equitable distribution of vacancies that the rule making authority had provided for drawing up separate seniority lists for Assistant Executive Engineers coming from three different sources. The obvious intention was that persons belonging to each category shall be considered separately for vacancies, which become available on account of the retirement or promotion etc. in the cadre of Assistant Executive Engineers. In this situation, the question of inter se seniority amongst graduate and Diploma holder Assistant Engineers does not arise. They have separate tracks. The passengers in separate trains travel on their respective routes. They may run parallel. But one line never touches the other. Resultantly, it can happen sometimes that a person who is a Graduate Engineer may have to wait for a slightly longer period than an Assistant Engineer who is a Diploma holder. However, the chances of such a situation are remote as the number of posts allotted to Diploma holders are only 20% and their turn for promotion comes after working for 7 years in the cadre of Assistant Engineers. The Degree holders have 75% posts and they become eligible for promotion on completion of 3 years of service. Thus, they have been given more than a fair share on the basis of qualification. And, we cannot also ignore the fact that long years of practical experience are also important. While balancing equities, the circumstances in their entirety have to be kept in view.
25. There is another aspect of the matter. While laying down procedure for promotion or conditions of eligibility, the rule making authority has to take abroad view and lay down a reasonable criterion. Such criterion may not prove to be mathematically accurate in all situations. So long as the provision embodies a broadly fair principle the consequential action cannot be annulled as being violative of Articles 14 and 16 merely because at a given point of time a person who has been directly recruited gets a higher slot in an inter se seniority list. In any event, so far as the present set of cases are concerned, nothing has been placed on record to show that there is an inter se seniority list of the Graduate and Diploma holder Assistant Engineers. No such seniority list has been referred to even during the course of arguments. Thus, the contention that juniors with lower qualifications are being promoted while senior persons with higher qualifications are being ignored has not been supported by any material on the record. However, even if such a list were to be fictionally drawn up on the basis of the date of appointment, the working of the list can cause difficulties. A diploma holder though promoted earlier may not be eligible till he completes 7 years of service as an Assistant Engineer. As against this a Degree holder shall be eligible on competition of 3 years. In view of this position, the Rule making authority has provided for separate channels for the three streams. The provision is fair. We cannot add to it. There is, in fact, no reason to do so.
26. Faced with this situation, learned counsel for the petitioners have referred to the Government Order issued on October 3, 1994. A copy of the order, as already mentioned, is at Ext.P7 in O.P. No. 17897 of 1997 (Ext.P3 in O.P. No.54 of 1998). We have examined the order. It was issued by the Government in the case of personnel working in the Public Works Department (Building & Roads). It was never issued for the Irrigation Department nor applied to the Officers in the Irrigation Branch. Secondly, in the order it has been mentioned that “it is necessary to issue an executive order, as the amendment to Special Rules is time consuming and will not serve the purpose.” It was further observed that the “Government are pleased to order that despite the quota prescribed in Special Rules an Assistant Engineer who possesses Diploma will not be eligible for promotion to the category of Assistant Executive Engineers over a graduate Assistant Engineer having longer service ……” This executive order is per se contrary to the statutory rule. Its validity can be seriously questioned. The Government cannot amend a rule by an executive order. It has to act in conformity with the rule. It cannot ignore the Rule and issue an executive order to replace it. So far as the present set of cases are concerned, no such order has, in fact, been issued. However, even if one were to be issued it could be questioned as being violative of the statutory rules. In fact, it appears that the Order was issued to meet a peculiar situation that had arisen on account of the bifurcation of the department. In the present set of cases, nothing has been pointed out from the record to show that any injustice has occurred. Thus, no ground for the issue of any direction is made out.
27. Learned counsel for the petitioners/appellant submits that the Government should be directed to issue an order. Granting such a prayer would amount to compelling the Government to violate the statutory rules. A writ Court cannot issue such a direction. Thus, the plea that the action of the Government is not in conformity with the rules and the Government should be directed to issue an order cannot be sustained.
28. Faced with this situation Mr. Krishna Mani has referred to the decision of a Bench of this Court in W.A.No. 300 of 1997 to contend that the order dated Octobers, 1994 has already been held to be valid by the Court. He further submits that an SLP against this judgment was dismissed by their Lordships of the Supreme Court.
29. A perusal of the judgment shows that the two questions, which were being considered by the Bench, were specifically recorded in paragraph 11. These may be reproduced:-
“11. We have heard the learned Advocate General appearing for the appellant – State as also the counsel appearing for the other appellants and the respondents. The same contentions as raised before the learned single Judge have been reiterated before us. Broadly speaking two points arise for our consideration:
(i) Whether, after the bifurcation of the Public Works Department, the Special Rules retained its statutory character or reduced to only administrative instruction; and
(ii) Whether the two executive orders, Exts.P7 and P12 called promotion order and restructuring order, amended or altered the Special Rules or in terms, supplemented it with a view to fill up the gap and remove the lacuna without running counter to the Special Rules.”
Still further, while considering the second question it was observed by the Bench that the order “was made on account of the circumstances which arose due to bifurcation and to avoid stagnation at the entry cadre. It could not be said that Ext.P12 order amended or varied the Special Rules.” Thus, the finding of the Bench was that even the executive order did not amend the rules. It was issued only on account of special circumstances. Resultantly, the position is that in view of the special circumstances in the Public Works Department (Buildings & Roads) Branch the Government had issued a special order. It has been averred in the counter affidavit filed in the present set of cases that no special circumstances were noticed in the Irrigation Branch. Thus, no special order was issued. This being the factual position, the petitioner can derive no advantage from the decision of the Division Bench. In any case, we cannot read the judgment to mean that the executive has been authorised to issue executive orders in violation of statutory rules. It is well settled that any executive order, which is contrary to a statutory rule, cannot be sustained. The executive is bound to follow the rule. It cannot act in derogation thereof. Thus, even the second question is answered against the petitioners/appellant.
30. No other point has been raised.
In view of the above, we find no merit in either the Writ Petitions or in the Writ Appeal. Resultantly, all the three cases are dismissed. However, the parties are left to bear their own costs.