Holding

The Kerala Engineering Service (General Branch) Rules 4 and 5 are constitutionally valid; a diploma‑holder who acquires a degree and opts for the degree‑holder promotion quota must be placed at the bottom of the seniority list and is not entitled to weightage of prior service.

Summary

The case concerned employees of the Kerala Water Authority who were either degree‑holders or diploma‑holders that later obtained a degree (AMIE) while in service. The respondents (diploma‑holders) challenged Kerala Engineering Service (General Branch) Rules 4 and 5, arguing that the rules denied them any weightage for service rendered before acquiring the degree and violated Article 14 of the Constitution. The High Court had struck down the rules as ultra‑vires. The appellants (degree‑holders) contended that the rules were valid, that separate promotion quotas for degree‑ and diploma‑holders were permissible, and that a diploma‑holder who opts for the degree‑holder stream must be placed at the bottom of the seniority list. The Supreme Court held that the rules are a reasonable classification under Article 14, that the State may fix separate promotion quotas under Article 309, and that a diploma‑holder who acquires a degree and chooses the degree‑holder stream is not entitled to prior service weightage and must be placed at the bottom of the relevant seniority list. Consequently, the High Court’s judgment was set aside and the appeals were dismissed.

Issues considered

The validity of Kerala Engineering Service (General Branch) Rules 4 and 5 with respect to Article 14 and Article 309 of the Constitution.
Whether diploma‑holders who acquire a degree while in service are entitled to weightage of their prior service for seniority and promotion.
Whether the separate promotion quotas for degree‑holders and diploma‑holders constitute an unreasonable classification.

Legislation cited

Constitution of Indias. Article 14, s. Article 309

Subjects

Service LawPromotionSeniorityArticle 14Article 309Kerala Engineering Service RulesClassificationEqualityDiploma holdersDegree holders

Judgment

\

...-·
A CHANDRA VA THI P.K. AND ORS.
v.
C.K. SAJI AND ORS.

FEBRUARY 12, 2004

B [V.N. KHARE, CJ., S.B. SINHA AND S.H. KAPADIA, JJ.]

Service Law:

Constitution of India-Article 309-Kerala Public Health Engineering
c Service Rules-Rule 4-Kerala Engineering Service (General Branch) Service
Rules-Rules 4(a) and 5-Emp/oyees acquiring degree qualifications while in
service-Rules does not give weightage of service before acquiring the degree
for purpose of seniority and promotion-Constitutional validity_ of-Held, the
rules are constitutionally valid
D The appellant-degree holders acquired their qualifications before
joining the service whereas the respondent-diploma holders acquired their
degree qualifications while in service. Under the State Service Rules, the
period of service rendered before acquiring the degree qualifications would
not be considered for the purpose of seniority and promotion in the quota
E of the degree holders and hence the respondents were placed at the bottom
of the seniority list for promotion. The respondents filed a Writ Petition
before High Court challenging the relevant rule as violative of Article 14
of the Constitution of India and hence ultra vires. The High Court quashed
the relevant Rule as ultra vires and held that the respondents are entitled
to claim weightage in service rendered before acquiring the degree
F qualifications for the determination of the seniority and promotion.

In appeal to this Court, the appellants, who were not parties before
the High Court, contended that the Rules are not violative of Article 14
of the Constitution of India; that they are senior to the diploma-holders
since they acquired 'their degree before joining service; and that there is
G
no illegality in the Rules by placing the respondents at the bottom of the
seniority list since they acquired their degree qualification while in service.
.;.
Disposing of the appeals, the Court
t

H 330
CHANDRA VATHI P.K. v. C.K. SAJI 331

HELD: 1.1. A bare perusal of State Service Rules show that the A
•
avenues for promotion for the degree-holders and the diploma-holders are
separate. By reason of an amendment in the Rules, promotion were sought
to be given to those diploma-holders, who acquired the degree, by way of
accelerated promotions. Only upon acquiring a degree, the diploma-holder
became eligible to exercise his option to be considered for promotion in B
the stream of the officers belonging to degree-holders. The diploma-
holders, who acquired a higher qualification during service, had either to
opt for promotion for the degree-holders quota or for diploma-holders
quota. Once he opts for a promotion in the degree-holders quota, the rule
of seniority would apply as he acquired the qualification therefor
subsequently. (345-F, G) C
1.2. The High Court failed to notice that the Rules clearly establishes
that a diploma-holder, who subsequently acquired a degree qualification,
would be eligible for promotion only in the event he fulfils the conditions
precedent therefor and not otherwise. His case could be considered only
after the cases of promotion of those who had been holding the degree D
qualification. By reason of acquisition of higher qualification, the diploma-
holders would not become entitled to be considered for promotion as they
in terms of the Rules were to be regarded junior most in the seniority list.
As separate seniority lists were being maintained in respect of the degree-
holders, dipolma-holders and certificate-holders, once a diploma-holders E
acquiring a qualification of a degree in engineering opts for being included
in the stream of the degree-holders, he would have to be placed at the
bottom of the relevant seniority list. [346-C-E, G)

N. Suresh Nathan and Anr. v. Union of India and Ors., [1992] Supp. 1
SCC 584; MB. Joshi and Ors., etc. v. Satish Kumar Pandey and Ors. etc., p
[1993] Supp. 2 SCC 419; Satpal Anti/ etc. v. Union ofIndia and Anr., [1995)
II 4 SCC 419; Satpal Anti/ etc. v. Union of India and Anr., [1955] 4 SCC 419;
D. Stepen Joseph v. Union of Indian and Ors., [1997) 4 SCC 753; Anil Kumar
Gupta and Ors. v. Municipal Corporation of Delhi and Ors., (2000] 1 SCC
128; A.K Raghumani Singh and Ors. v. Gopa/ Chandra Nath and Ors., [2000]
4 SCC 30 and Pramod K. Pankaj v. State of Bihar, (2002) 9 Scale 813, JT (
(
(2003) 9 SC, 333 referred to.

2. It is well settled that the classification on the basis of educational
qualification is a reasonable one and satisfies the doctrine of equality as
adumbrated in Article 14 of the Constitution of India. [350-F-G]
332 SUPREME COURT REPORTS (2004] 2 S.C.R.

I\ The State of Jammu & Kashmir v. Tri/oki Nath Khosa and Ors., AIR
(1974) SC I CB and Government of West Bengal v. Tarun K. Roy and Ors.,
(2003) 9 Scale 671, referred to. '
' .
3. The State, as an einployer, is entitled to fix a separate quota of
promotion for the degree-holders, diploma-holders and certificate-holders
=l separately in exercise of its rule milking power under Article 309 of the
Constitution of India. Such a rule is not unconstitutional. The State may,
therefore cannot be said to have acted arbitrarily by giving an-option to
the diploma-holders, who acquired a higher qualification, so as to enable
them to either opt for promotion in the category of degree-holder or
~ · diplom~-holder. Such option was to be' exercised by the concerned officer
only. He, in a given situation, may feel th?tt he would be promoted in the
diplo~a-holders quota earlier then degree-holders quota and vice versa
but once he opts to join the stream of the degree-holders, he would be
placed at the bottom of the seniority list. [351-D~F]

) CIVIL APPELLATE JURISDICTION : Civil Appeal No. 884 of
2002.

From the Judgment and Order dated 28.8.98 of the Kerala High Court
in O.P. No. I 0484 of 1997-W.
WITH
C.A. Nos. 885-887, 888, 889 and 890-893 of 2002.

K. Sukumaran, P. Krishnamoorthy, T.L.V. Iyer, Mathai M. Paikeday,
Ms. Karthika S., Nishe Rajen Shonker, B.V. Depak, John Mathew for K.S.
Sasiprabhu, Romy Cliacko, Rajiv Mehta G.R.K. Prasad, Md. Wasay Khan, D.
Mahesh Babu, Ramesh Babu M.R. Ms. Prasuna, P.I. Jose, T.G.N. Nair Satya
Mitra Garg, Ms. Manju Agg'arwal, M.P. Vinod, Ajay K. Jain and Srinivash
for the appearing parties.

The Judgment of the Court was delivered by

S.B. SINHA, J. These appeals involving common questions of law and
fact were taken up for hearing together and are being disposed of by this
common judgment.

BACKGROUND FACT:
For the said purpose, however, we would note the fact of each matter
separately.
CHANDRA VATHI P.K. v. C.K. SAJI [SINHA,J.] 333
CIVIL APPEAL NO. 884 OF 2002 : A
The private parties, at all material times were and still are working with
the Kerala Water Authority. The appellants herein are degree-holders whereas
the private respondents herein are diploma-holders. The said respondents
acquired the qualification of AMIE Part-A and Part-B which is said to be
equivalent to the degree while they were in service. B
For the puriiose of grant of promotion as also other conditions of service
governing the service of offices, the Authority had adopted the Kerala Public
Health Engineering Service Rules (Rules). It is not in dispute that there exist
three categories of posts in the engineering branch, namely, Assistant Engineer,
Assistant Executive Engineer and Executive Engineer. C
Rule 4 of the said Rules reads as under :

"4. Promotion as Executive and Assistant Engineers :

(a) A person who obtains Degree in Engineering or A.M.l.E. (India) D
Diploma after appointment as Assistant Engineer shall be eligible
for promotion as Executive Engineer only after the claims of all
Assistant Engineers who on the date of his obtaining the degree
in Engineering or the AMIE (India) Diploma, possessed the
qualification mentioned in item (i) in the Annexure have been
considered. E
(b) Vacancies in the category of Assi!;tant Engineers shall be filled
up from among those in categories 1 or 2 in the Kerala Public
Health Engineering Subordinate Service in the (ratio of 3 : 1)
between
F
(l) Persons possessing any of the qualifications mentioned in
item (i) or in section A in item (ii) ofthe Annexure; and

(2) Those possessing any of the qualifications mentioned in
section B in item (ii) of the Annexure or those possessing
the SMT, Overseers certificate, every 5th vacancy being G
allotted to the latter and the rest to the former.

A person who while holding (any of the posts in categories 1 and 2
of the Kerala Public Health Engineering Subordinate Service) passes
Sections A and B of the AMIE (India) Examination shall be eligible
for promotion as Assistant Engineer against the quota allotted for H
334 SUPREME COURT REPORTS (2004] 2 S.C.R.

A those possessing the qualifications mentioned in item (i) or Sec. A in
item (ii) of the Annexure on iy after the claim of all those who, on the
date of his passing the AMIE (India) Examination, possessed the
qualifications mentioned item (i) of the Annexure have been
considered.

B Provided that it will be left to the option of such persons to continue
among (those) possessing the qualifications mentioned in Section B
in item (ii) of the Annexure and claim promotion against the quota
allotted to them."

Rule 5 of the Kerala Engineering Service (General Branch) Service
C Rules reads thus : .

"5. Promotion as Executive and Assistant Executive Engineers.-

(a) A person who obtains the AMIE (India) Diploma or a pass in
section A & B of the AMIE of the Institution of Engineers (India)
D in Civil or Mechanical Engineering after appointment as Assistant
Executive Engineer shall be eligible for promotion as Executive
Engineer only after the claims of all Assistant Executive Engineers
who, on the date of his obtaining the AMIE (India) Diploma or
a pass in Section A & B of the AMIE of the institution of
Engineers (India) in Civil or Mechanical Engineering, possessed
E the qualification mentioned in item (i) and section A in item (ii)
in the Annexure have been considered.
(b) Vacancies in the category of Assistant Executive Engineers shall
be filled up from among Assistant Engineers in the ratio of75:20:5
respectively from among
F
(l) 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
G (2) Those possessing the Draftsman Certificate of the Co~lege
of Engineering, Guindy or SMT Overseer's Certificate.

A person, who while holding the post of Assistant Engineer
passes Sections A and B of the AMIE (India) Examination or a Degree
in Engineering of a recognized University shall be eligible for
H
CHANDRAVATHI P.K. v. C.K. SAJI [SINHA,J.) 335
,,,,.....
promotion as Assistant Executive Engineer against the quota allotted A
for those possessing the qualifications mentioned in item (i) ?r Section
A in item (ii) of the Annexure only after the claims of all those who
on the date of his passing the AMIE (Jndia) Examination or a Degree
in Engineering of a recognized 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-Bin item (ii) of the Annexure and claim promotion against
B

the quota allotted to them.
"' Note.-1.The separate quota allotted to the Certificate Holders will be c
abolished as soon as the holders of the SMT 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 : I on cadre strength between Degree holders and Diploma
holders.
D
2. The ratio fixed for promotion to the cadre of Assistant Executive
Engineers will be applied to the cadre strength of Assistant Executive
Engineer 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
E
_....... cadre of Assistant Executive Engineers for degree holders/Diploma
holders and certificate holders and promotions and reversions of each
category of officers will be continued to the quota allowed for each
" category within the cadre strength notwithstanding anything contained
in the Kerala State and Subordinate Services Rules."
F
Rule 4 (a) of the Kerala Engineering Service (General Branch) Rules
provides for qualifications which is the following terms :

"Qualifications : No person shall be eligible for appointment to the
category mentioned in column (I) of the table below unless he
possesses the qualifications prescribed in the corresponding entry in G
column (2) thereof.

H
336 SUPREME COURT REPORTS [2004] 2 S.C.R.

A TABLE
Category Qualifications
(I) (2)
Superintending Must possess any degree or diploma mentioned
Engineers in item (i) or in Section-A under item (ii) in the
B Annexure

Executive Must possess any degree or diploma mentioned
Engineers in item (i) or in Section-A under item (ii) in the
Annexure.
Assistant
c Executive
Must possess any degree or diploma mentioned
in item (i) or (ii) in the Annexure
Engineers
or

Must possess Draftsman's certificate of the
College of Engineering, Guindy (2 years course)
D or SMT Overseers Certificate and must have
put in a total service of 25 years in the
department out of which 12!/z years must be as
Assistant Engineer.

E Note : In the case of SMT Certificate holders and of those possessing
Draftsman's certificate of the College of Engineering, Guindy, for
the purpose of calculating the 25 years of total service, continuous
Work Establishment Service, if any, put in by such persons shall also
be reckoned subject to the condition that this shall not affect the
claims of any of the seniors of such persons in the category of Junior
F Engineers."

The validity of said rule came to be questioned by the respondents by
filing a writ petition before the High Court, which was marked as O.P.
No.10484 of 1997-W. The matter as regard the validity of the said rule
G insofar as it applied to the Kerala Water Authority restricting the consideration
of the Assistant Engineers who possessed degree/ AMIE after the claims of all
those who on the date of their passing the AMIE/Degree possessed the
qualification mentioned above was referred to the Full Bench of the High
Court The Full Bench of the High Court despite observing that it was not
necessary to consider the validity of the rule and that there was no restriction
H imposed on the Assistant Engineers who acquired degree while they were in
CHANDRAVATHI P.K. v. C.K. SAJI [SINHA. J.] 337

the feeder category for promotion as Assistant Engineer, quashed the order A
impugned in the writ petition holding :

" ... It is held that the petitioner is entitled to promotion to the post of
Assistant Executive Engineer taking into consideration his entire

-
service as Assistant Engineer in a vacancy which ha.d arise11 in the
post of Assistant Executive Engineer after the date of his acquisition B
of degree qualification viz., September 1996. The petitioner will be
granted promotion as Assistant Executive Engineer forthwith, in the
vacancy in which the 2nd respondent was promoted. In the category
of Assistant Executive Engineer the petitioner will be treated as senior
to the 2nd respondent." C
The .appellants herein were not parties in the said writ petition. They
filed this appeal being aggrieved by the said judgment, inter alia, contending
that the private respondents were junior to them and furthermore, there were
two different quotas for promotion from amongst the diploma-holders and
the degree-holders. By way of example, it had been pointed that services of D
the writ petitioners before the High Court (Private Respondents herein) were
regularized on 19.9.1990 and they had passed both Part A and Part B of the
Examination only in 1996 wher~as the said qualification was acquired by the
appellants herein were already holders of the degree qualification at the time
of joining of the post as Assistant Engineer on 15.12.1983, 3.5.1986 and
8.7.1986 respectively. E

CIVIL APPEAL N0.889 OF 2002 :

The aforementioned appeal has been filed by the Kerala Public Works
Department Graduate Engineers Association questioning a judgment and order
dated 27.7.1999 of a Full Bench ofthe Kerala High Court in W.A. No.152
p·
of 1995-A arising out O.P. No.8441 of 1991 whereby and whereunder
following the decision of the Full Bench in Manmadhan vs. Kerala State
Electricity Board [ 1999 (1) KL T 37] as also the judgment of a Division
Bench in T.R. Krishnan vs. State of Kerala and Others disposed of on
19.2.1990 holding that Rule 5 of the Kerala Engineering Service (General G
Branch) was ultra vires.

CIVIL APPEAL NOS. 885 TO 888 AN1f 890 TO 893 OF 2002 :

Civil Appeal Nos.885 to 888 of. 2002 have been filed against the
judgment and order dated 2.11.1998 passed by the Full Bench in Writ Appeal H
338 SUPREME COURT REPORTS [2004] 2 S.C.R.

A Nos. 1215, 1155of1991, 119of1992 and 1154of1991. The parties to these
appeals, however, are employees in the Harbour Engineering Branch of Kerala
Port Trust. The Harbour Engineering Department is an independent department.
No rule which are in pari materia with the rules aforementioned govern the
tenns and conditions of servic.e of the employees working therein. The rules
applicable to the Harbour Engineering Branch of the Kerala Port Trust govern
B the matter relating to promotion to the posts of Assistant Executive Engineer.
For the purpose of promotion to the post of Assistant Executive Engineer, the
rules provided for grouping of Assistant Engineers into Group-A and Group-
B; whereas Group-A comprise of Graduate Assistant Engineers Group-B
comprised of Diploma-holder Assistant En~ineers. The qualifications for
C promotion to the post of Assistant Executive Engineer against each Group
read thus :

Group-A:

"1. B.Sc. Degree in Engineering (Civil) of a recognized University
of India.
D
2. A minimum period of 3 years service as Assistant Engineer

Group-B: ~
I. Diploma in Civil Engineering or any other qualifications
E recognized by the Government of Kerala as equivalent thereto.
2. A minimum period of 7 years service out of which 5 years shall
be as Assistant Engineer in the Harbour Engineering Branch.

Note :A ratio of3: I of the total posts of Assistant Executive Engineer
shall be applied between candidates possessing the qualifications under
F Group A and candidates possessing qualifications under Group B in
the matter of appointment to the category of Assistant Executive
Engineer.

In the absence of candidates possessing qualifications under Group-
B vacancies reserved for such candidates shall also be filled up by
G "'
candidates possessing qualifications under Group-A"
..
The parties, therefore, are not governed by any rule, where the question
as regard acquisition of a highet\,'iiualification arises while in service.

Before the learned Single Judge of the Kerala High Court before whom
H
CHANDRA VATHI P.K. v. C.K. SAJI [SINHA, J.] 339
the writ petition came up for hearing, a purported draft rule was placed which A
reads as under :

"A person, who while holding the post of Assistant Engineer possess
Sections A and B of the AMIE (India) Examination or a Degree in
Engineering of a recognized 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
B

the date of his passing the AMIE (India) Examination, or a Degree
in engineering of a recognized University possessed the qualifications
mentioned in item (i) in the Annexure have been considered." C
Having regard to the fact that Rule 5 of the Kerala Engineering Service
(General Branch) Rules, as amended on 8.6.1982 was declared ultra vires in
T.R. Krishnan (supra), the lea~ed Judge although noticed that the said
amendment had not come into force and as such the validity thereof need not
be gone into, held : D
"If the stand taken by respondents l and 2 is accepted, a Diploma
holder Assistant Engineer, who has put in long years of service in
that cadre will loose the benefit of that experience on his acquiring
Degree qualification. He will have to come to Group A as the junior
most and then put in service for three years. The experience gained E
by them cannot be wiped off on the ground that they acquired the
degree in Civil Engineering. This is illegal and arbitrary. An Assistant
Engineer, who is a Diploma holder, on acquiring Degree qualification,
cannot be compelled to disgorge the benefit of the experience gained
by him as Assistant Engineer. He must have credit of the experience.
Depending on the rank in the seniority list and the Degree qualification, F
which he acquired subsequently, as on the date of occurrence of the
vacancy must be considered for appointment by transfer to the cadre
of Assistant Executive Engineer. Petitioner who took the Degree in
1986 and had put in 6\12 years of experience on that date, must be
considered as a Graduate Assistant Engineer for being appointed to G
the post of Assistant Executive Engineer by transfer in the vacancy
which arose subsequent to November, 1986. The contrary stand taken
by respondents l and 2 is illegal."

The appeal against the said order was heard by the Full Bench along
with other connected matters and, as noticed hereinbefore, decided by the H
340 SUPREME COURT REPORTS [2004) 2 S.C.R.

A impugned judgment.

SUBMISSIONS :
.!·.
Mr. K.. Sukamaran, learned Senior. Counsel appearing on behalf of the ..
appellants in Civil App~al No.884 of 2002, Mr. P. K:rishilamoorthy, leamtld
B Senior Counsel appearing on behalf of the appellant in Civil Appeal No.889
of 2002 and Mr. John Mathew, learned counsel appearing on behalf of the
appellants in Civil Appeal Nos. 885 to 888 of 2002, would submit that the
-
\
Full Bench of the High Court committed a manifest error in passing the
impugned judgment insofar as it declared the relevant rules as ultra vires \
C without assigning sufficient or cogent reasons in support thereof. The learned
counsel would submit that possession of a higher qualification has all afong
been trf?ated differently in the service rules and, thus, cannot be said to be hit
by Article 14 of the Constitution of India. It was further urged that there
exists separate channels for promotion to the post of Assistant Executive
Engineer and, thus, the appel,ants herein being degree-holders were seniors
D to the diploma-holders who acquired a higher qualification in service and if
they interid to avail the promotional avenue meant for the degree-holders,
they would be placed at the bottom of the list and, thus, no illegality can be
said to have been committed in considering them to be the juniormost in the
said channel; particularly keeping in view the fact that despite acquisition of
a higher qualification, the officer concerned had an opportunity to exercise.
E his option a:; regard promotion to the post of Assistant Executive Engineer.
. Drawing our attentionto the judgment of the High Court in Krishnan 's
· case (supra), theJeame<l.:counsel woulcf:submit that from the factual matrix
obtaining· therein it would :.appear that the amendment to Rule .5 was he id .
ultra ~ires as by ~~aso11 thereofaright vested in him was sought fo be taken ' .
•·. f away'. The.said dedsion; th.e l~atned'coun$el would. ·submitdoes not
.. : .... - . . , ..lay.down
· -·
..•
the correct law.

Mr. T.L.V. Iyer, learned Senior Counsel appearing on behalf of the
respondents, on the other hand, would draw our attention to the fact that
G earlier there were three categories of officers in the engineering branch,
namely, Junior Engineer, Assistant Engineer and Executive Engineer, which
were re-designated as Assistant Engineer, Assistant
.......
Executive Engineer and
Executive Engineer. The learned counsel would contend that having regard
to the fact that by reason of such redesignation the diploma-holders who
H were originally appointed as Junior Engineers also were redesignated as
CHANDRA VATHI P.K. v. C.K. SAJI [SINHA, .I.] 341
Assistant Engineers, the impugned rule has rightly been held to be ultra vires A
and/or inapplicable in the case of the diploma-holders.

Mr. Mathai M. Paikeday, learned Senior Counsel appearing in Civil
Appeal Nos. 885-87, 888 and 890-93 of 2002, however, would urge that in
the case of Harbour Engineering Branchof the Kerala Port Trust, separate
rules exist and having regard to the fact that the purported draft rules never B
came into being, the concerned employees would be governed by the existing
rule in terms whereof, there are separate channels of promotions for the
diploma and degree-holders, as contained in Part A and Part B, as referred
to hereinbefore. The learned counsel appearing on behalf of the State of
Kerala, however, would submit that the proposed amendment although never C
came into force, but the same was indicative of the fact that the intention of
the State had all along been to have two categories of services and if pursuant
to or in furtherance thereof the degree-holders and diploma-holders are treated
separately, no fault can be found therewith.

QUESTION: D
The short question which arises for consideration is as to whether in
terms of the scheme of the Kerala Engineering Service (General Branch)
Rules, diploma-holders are entitled to claim any weightage in the service
rendered by them prior to their acquisition of degree qualification in the
matter of promotion or transfer to higher posts when specific quota is fixed E
for graduates and diploma-holders in the matter of promotion.

ANALYSIS:

It is not in dispute that in terms of the extant rule, appointments to the
post of Junior Engineer which had later been re-designated as Assi$tant F
Engineer could be made by: (l) direct recruitment of graduate engineers; and
(2) promotion from first grade overseers possessing diploma and certificates
in the ratio of 5 : 3 : 2. The method of appointment of Assistant Executive
Engineer, however, was upon recruitment by transfer from Assistant Engineers
in the ratio of75 : 20 : 5 from amongst the persons possessing degree holders G
of diploma and certificate respectively. It is also not in dispute that promotion
to the post of Executive Engineer is to be made from amongst the Assistant

- Executive Engineers. Rule 4 of the Kerala Health Engineering Service Rules
and Rule 5 of the Kerala Engineering Service (General Branch) Rules, in our
opinion, are to be read in their entirety. Clause (a) of the said Rules 4 and H
342 SUPREME COURT REPORTS [2004] 2 S.C.R.

A 5 respectively refer to acquisition of qualificati9n of Sections A and B in
AMIE after appointment as Assistant Engineer/Assistant Executive Engineer
whereas clause (b) thereof provides for filling up of vacancies in the cadre
of Assistant Executive Engineers, one from amongst the persons who possess
any of the qualifications mentioned in item (i) or in Section-A in item (ii) of
B the Annexure, which indisputably refer to degree-holders, diploma-holders
and certificate-holders. By reason of the said rule, if a person while holding
the post of Assistant Engineer (erstwhile Junior Engineer) passes Sections A
and B of AMIE or a Degree in Engineering from a recognized University, he
would also be eligible for promotion against the quota allotted for those
possessing the degree qualification. By reason of the proviso appended to the
C said rule, however, the concerned Assistant Engineer has been given an option
to continue amongst the Assistant Engineers possessing diploma in engineering.

Rule 5(b) was amended on 20. 7 .1982. Prior to its amendment, the rule
provided that an Assistant Executive Engineer who possessed AMIE (India) (
Examination was to be eligible for promotion as Assistant Executive Engineer
D in the quota of degree-holders only after promotion of those who were already
holding the degree qualification.

In T.R. Krishnan (supra), the question which were fonnulated read as
under:

E "1. Whether the Asst. Ex. Engineers holding degree qualification
and diploma qualification are fused into one common category
and if so whether the principle laid down in Rajan vs. State of
Kerala 1983 KL T 878 would be applicable to the case of the
petitioner.

F 2. Whether the petitioner is entitled to claim parity of treatment like
the certificate holders on the basis of Ext.P-7 order.
3. Under the scheme of the Rules of the Kerala Engineering Service
General Branch, whether the petitioner is entitled to claim any
weightage for the service rendered by him prior to his acquisition
G of degree qualfication.

4. Does the amendment to rule 5 brought in by GO (P) No.79/82
dated 8.6.1982 in reality confer a benefit on diploma Engineers
who acquired degree qualification or does it in the guise of
.
conferring a benefit work hardship for them; and
H
CHANDRA VATHI P.K. v. C.K. SAJI [SINHA, J.] 343

5. On the totality of facts of this case and the position of his A
colleagues who were also recruited as diploma holder engineers,
whether any injustice has been done to the petitioner."

While considering Point Nos. I to 5 aforementioned, the Division Bench
came to the following conclusion :
B
" .. .In the absence of a statutory rule, which prescribes maintaining
separate seniority lists, it is not open to the government to contend
that the Asst. Exe. Engineers who come from the· category of diploma
holder Engineers and degree holder junior engineers are two different
and distinct classes. As the Rules stand, there is only an insistence
upon the minimum number of years of service to become eligible for C
appointment as Asst. Exe. Engineers. Similarly the rules also
contemplate that in the case of promotion to Exe. Engineers a person
should satisfy the requirement of having satisfactorily worked for a
period of not less than three years as Asst. Exe. Engineer."

Noticing the fact that the amendment in Rule 5 was made on or about D
8.6.1982, the Division Bench observed :

"21. If we examine Rule 5 we find that this. rule deals with diploma
holders who after appointment as Assistant Executive Engineers
acquired the degree qualification or AMIE qualification. This rule E
will not be applicable to the case of the present petitioner who acquired
his degree qualification as well as AMIE qualification prior to his
appointment as Asst. Exe. Engineer. He acquired his degree
qualification in November, 1975 and his AMIE qualification in summer
1975. He was elected as Member of the Institute of Engineers on
11.5 .1976, while he was appointed as Asst. Exe. Engineer with F
retrospective effect from 17.6.1978. This means that the petitioner
acquired the degree qualification prior to his appointment by transfer
as Asst. Exe. Engineer. He is outside the ambit of the category of
persons contemplated under sub-rule (a) of Rule 5.

The way in which Rule 5 has been amended a number of times, G
and the manner in which in 1982 Notes 1 and 2 are added at the end
of the Rule clearly indicates that the amendment is a motivated
amendment brought into existence after the petitioner agitated his
claim for promotion as Executive Engineer. It is brought into existence
with a view to defeat his claim. The petitioner is perfectly justified H
344 SUPREME COURT REPORTS [2004] 2 S.C.R.

A in his contention that when he succeeded in the various writ petitions
and he got his services regularized and got his promotion. ln answer
to his representation for promotion as Exe. Engineer, the Government
introduced the amendment by issuing G.O. (P) No.79/82 dated
8.6.1982

B Despite such a finding while considering the Point Nos. 3 and 5
aforementioned, the Division Bench opined :

"27. Point Nos. 3 and 5: The Kerala Engineering Service (General
Branch) Rules, as intimated while discussing point nos. l and 4, do
not provide for giving any weightage to diploma holders for their
c service rendered as diploma holder Engineers, if they acquire a degree
qualification subsequentiy Rule 5 as it now stands works hardship for
diploma holder engineers who subsequently acquired degree
qualification. The amendment made in 1977 by G.O. (P) No.185/77 /
PW. dated November 1977 published in SRO No.1163/77 in the Kerala
(fazette dated 13.12.1977 does not confer any benefit by enabling
D
such diploma holders for being considered for promotion in the quota
of degree holder Asst. Exe. Engineers. In reality it makes them forgo
all their seniority as diploma holder Engineers and compete with such
younger people who might not have even studied engineering by the
time these people had entered Government service. Normally where
E a diploma holder working in a particular category in which degree
holders are also working acquires the degree qualification, namely,
the higher qualification, justice requires that at least two-thirds or
half of his service as diploma holder engineer should be given as
weightage for the purpose of reckoning his seniority vis-· -vis graduate
engineers. As the Rules now exist, the so-called benefit conferred is
F not a benefit, but it is more a detriment. We hold point No.3
accordingly.

28.We hasten to add that as the petitioner acquired his qualification
of B.Sc. engineering and AMIE prior to his appointment as Asst.
Exe. Engineer, his seniority for the purpose of promotion to the
G
category of Executive Engineer should be reckoned from the first
date of his service as Asst. Exe. Engineer, namely, 17.6.1978."

In the aforementioned fact situation, the Division Bench declared that
the amendment to Rule 5 introduced by G.O. (P) No. 7982 dated 8.6.1982 is
H arbitrary, discriminatory and unconstitutional as it was found violative of
CHANDRAVATHI P.K. v. C.K. SAJI [SINHA, J.] 345

Articles 14 and 16 of the Constitution of India. A
The declaration of. amendments in Rule 5 as unconstitutional was an
obiter dicta.

Therein, the petitioner was awarded seniority in the case of Graduate
Assistant Executive Engineer w.e.f. 17.6.1978 i.e. with effect from the date B
of his appointment, as he had already acquired the qualification of degree in
engineering by that time. He was further directed to be promoted to the post
of Executive Engineer treating his claim as a graduate degree-holder Assistant
Executive Engineer with effect from 17 .6.1978 but despite the same, he had
not been granted a weightage for his service as Assistant Executive Engineer C
before he acquired the degree qualification. The decision of the Division
Bench ·of the Kerala High Court in T.R. Krishnan (supra) must also be
considered having regard to the factual matrix obtaining therein. In the said
writ petition, the writ petitioners alleged mala fide against the authorities
concerned which also found favour of the Bench. We have seen earlier that
the Division Bench came to the conclusion that the amended rule had no D
application in his case as he had been treated to be a Graduate Degree-holder
Assistant Executive Engineer with effect from 17.6.1978 and in that view of
the matter, it was not necessary for the Division Bench to go into the question
of validity of Rule 5.

INTERPRETATION OF THE RULES : E

A bare perusal of Rules 4 and 5 of the Kerala Engineering Service
(General Branch) Rules would clearly go to show that the avenues for
promotion for the degree-holders and the diploma-holders were separate. By
reason of the amendment incorporated in the rule promotions were sought to F
be given to those who although were diploma-holders passed the Degree in
Engineering examination or Part A and Part B of AMIE by way of accelerated
promotions. Only upon acquiring such a degree, the diploma-holder became
eligible to exercise his option to be considered for promotion in the stream
of the officers belonging to the degree-holders. As such diploma-holder officers
who acquired a higher qualification during service had either to opt for G
promotion for the degree-holders quota or for diploma-holders' quota. Once
he opts for a promotion in the degree-holders' quota, rule of seniority would
apply as he acquired the qualification therefor subsequently.

H
346 SUPREME COURT REPORTS [2004] 2 S.C.R.

A FINDINGS:

The Full Bench of the Kerala High Court while deciding the matters
which are the subject-matters of Civil Appeal No.884 of 2002, unfortunately
did not address itself to the aforementioned question. If its finding to the
effect that "for promotion to the post of Assistant Executive Engineer... there
B is no restriction imposed on the Assistant Engineers who acquired degree
while they are in the feeder category for promotion as Assistant Executive
Engineer" is correct, the same would make Rule 4(b) of the Kerala Public
Health Engineering Service Rules otiose. The said rule has to be read in its
entirety. The scheme contained therein must be given its full effect. The
C purport and object of such an amendment was made in the year 1982 was
required to be given deeper consideration. The High Court failed to notice
that a conjoint reading of Rule 4 and Rule 5 clearly establishes that a diploma-
holder Assistant Engineer who subsequently acquired a degree qualification
would be eligible for promotion as Assistant Executive Engineer, only in the
event he fulfills the conditions precedent therefor and not otherwise and in
D terms thereof namely his case could be considered only after the cases of
promotion of those who had been holding such degree qualification have
been considered. By reason of acquisition of higher qualification only the
diploma-holders would not become entitled to be considered for promotion
as they in terms of the rules were to be regarded juniormost in the seniority
E list of the Graduate Assistant Engineers.

The Full Bench of the High Court, furthermore, unfortunately construed
Rule 4 in isofation without taking into consideration the effect of Rule 5(b)
in terms whereof it has clearly been laid down that the vacancies in the
category of Assistant Executive Engineers we~e to be filled up from amongst
p the Assistant Engineers in the ratio of 75 : 20 : 5 from amongst the degree-
holders, diploma-holders and certificate-holders. There cannot be any doubt
whatsoever that as separate seniority lists were being maintained in respect
of the degree-holders, diplorna~holders and certificate-holders; once a diploma-
holder acquiring a qualification of a degree in engineering opts for being
included in the stream of the degree-holders, he would have to be placed at
G the bottom of the relevant seniority list.

We, for the reasons aforementioned, cannot accept the views of the
High Court.

However, so far as Civil Appeal Nos.890-93 of 2002 are concerned, it
H appears that amendment to the rule had never come into force and, therefore,
CHANDRAVATHI P.K. v. C.K. SAJI [SINHA, J.] 347
it is difficult to accept the contention of the learned counsel for the State that A
the degree-holders and diploma-holders were to be treated at par with the
other cases. In fact, in terms of the rules applicable to the case of Harbour
Engineering Branch of the Kerala Port Trust, two categories, namely, degree-
holders and diploma-holders have been placed separately, namely, Group-A
and Group-B and as such the persons holding the respective qualifications B
would be governed by the rules as existing then. In that view of the matter,
the respondents would be in the same position as in the case of T.R. Krishnan
(supra) inasmuch a right vested in them, in absence of rule having been given
a retrospective effect could not have been taken away. The State in exercise
of its power under Article 309 of the Constitution of India may give
retrospective effect to a rule but the same must be explicit and clear by C
making express provision therefor or by necessary implication but such
retrospectivity of a rule cannot be inferred only by way of surmises and
conjectures.

We are, however, not oblivious of the fact that rules framed by different
States may be different. Different Rules may also be framed having regard D
to the nature of the job and other relevant factors.

In N. Suresh Nathan and Anr. v. Union of India and Ors., [1992]
Supp. 1 SCC 584, this Court held:

"In our opinion this appeal has to be allowed. There is sufficient E
material including the admission of respondents diploma-holders that
the practice followed in the department for a long time was that in the
case of diploma-holder Junior Engineers who obtained the degree
during service, the period of three years' service in the grade for
eligibility for promotion as degree-holders commenced from the date F
of obtaining the degree and the earlier period of service as diploma-
holders was not counted for this purpose. This earlier practice was
clearly admitted by the respondents diploma-holders in para 5 of
their application made to the Tribunal at page 115 of the paper book.
This also appears to be the view of the Union Public Service
Commission contained in their letter dated December 6, 1968 extracted (JI
at pages 99-100 of the paper book in the counter-affidavit of
respondents 1 to 3. The real question, therefore, is whether the
construction made of this provision in the rules on which the past
practice extending over a long period is based is untenable to require
upsetting it. If the past practice is based on one of the possible f
A
348 SUPREME COURT REPORTS [2004] 2 S.C.R.

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."

In that case, the scheme under the recruitment rules is almost identical
as in terms thereof three years' service in the cadre required for degree-
B holders as a qualification for promotion in the said category was held to
mean three years' service in the grade as a degree-holder.

In M.B. Joshi and Ors. etc. v. Satish Kumar Pandey and Ors. etc.,
[1993] Supp. 2 SCC 419, the decision in N. Suresh Nathan (supra) was
distinguished holding :
c
"I 1. A perusal of the above observations made by this Court clearly
show that the respondents diploma-holders in that case has admitted
the practice followed in that department for a long time and the case
was mainly decided on the basis of past practice followed in that
department for a long time. It was clearly laid down in the above case
D that if the past practice is based on one of the possible constructions
which can be made of the ruies then upsetting the same now would
not be appropriate. It was clearly said "it is in this perspective that the
question raised has to be determined". It was also observed as already
quoted above that the Tribunal was not justified in taking the contrary
E view and unsettling the settled practice in the department. That apart
the scheme of the rules in N. Suresh Nathan case [ 1992]. Supp I SCC
584 : [1992] SCC (L&S) 451 : (1992) 19 ATC 928 was entirely
different from the scheme of the Rules before us. The rule in that
case prescribed for appointment by promotion of Section Officers/
Junior Engineers provided that 50 per cent quota shall be from Section
F 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. The aforesaid rule itself provided in explicit terms that
Section Officers possessing a recognised Degree in Civil Engineering
G was made equivalent with three years' service in the grade. Thus, in
the scheme of such rules the period of three years' service was rightly
counted from the date of obtaining such degree. In the cases in hand
before us, the scheme of the rules is entirely different."

It was further observed : " ...
H
CHANDRA VATHI P.K. v. C.K. SAJI [SINHA, J.] 349
The Rules in our case do not contemplate any equivalence of any A
period of service with the qualification of acquiring degree of
graduation in engineering as was provided in express terms in N.
Suresh Nathan case [ 1922] Supp l SCC 584 : [1992] SCC (L&S) 451
: (1992) 19 ATC 928) making three years service in the grade
equivalent to degree in engineering. In our opinion, the Rules
applicable in the cases before us clearly provide that the diploma- B
holders having obtained a degree of engineering while continuing in
service as Sub-Engineers shall be eligible for promotion to the post
of Assistant Engineer in 8 years of service and quota cf 10 per cent
posts has been earmarked for such category of persons."

The said decision was followed in Sa,tpal Anti/ etc. v. Union of India
c
and Anr., [1995] 4 SCC 419, D. Stephen Joseph v. Union of India and Ors.,
[1997] 4 SCC 753, Ani/ Kumar Gupta and Ors. v. Municipal Corporation of
Delhi and Ors., [2000] 1 SCC 128 and A.K. Raghumani Singh and Ors. v.
Gopal Chandra Nath and Ors., [2000] 4 SCC 30.
D
Almost an identical view has been taken by a Bench of which two of
us were parties in Pramod K. Pankaj v. State of Bihar, [2002] 9 SCALE 813
= [JT [2003] 9 SC 333, wherein this Court noticing the decisions in N. Suresh
Nathan (supra), MB. Joshi (supra), Satpal Anti/ (supra) and D. Stephen Joseph
(supra) held :
E
"THE POLICY DECISION :

The policy decision of the State as contained in the resolution of
the State Government dated 17.1.1979 is not in question. It is accepted
that the said res0lution was adopted in the special situation that 20%
quota which was earlier reserved for graduate engineers was abolished, F
as a result whereof they suffered immense prejudice. Clause 'Cha' of
the said circular states that the promotion on the vacant posts of
Assistant Engineer under the quota mentioned in clause 'Ka' i.e. 3%
would be made on the basis of seniority. In absence of any statutory
provision or rules made thereunder or under the proviso appended to G
Article 309 of the Constitution of India, it is trite, that once an
incumbent is appointed to a post according to rules his seniority has
to be counted. from the date of his appointment.

The aforementioned Resolution dated 17 .1.1979 was introduced
as a special measure. The promotion of the holders of the post of H
350 SUPREME COURT REPORTS [2004] 2 S.C.R.

A Junior Engineers to the post of Assistant Engineer was not to be done
on selection basis. No written examination was to be held nor any
oral interview was to be taken. No criteria whatsoever was laid down
for selecting the candidates. For the purpose of granting promotion to
the post of Assistant Engineer in the aforementioned category, only
two conditions which were required to be fulfilled on the relevant
B .date are : (a) the employee must be holder of a degree or must have
passed an equivalent examination; (b) he must have completed five
years of service in the post of Junior Engineer.

A plain reading of the aforementioned resolution dated 17 .1.1979
would clearly go to show that no further requirement was prescribed
c therefor. Clause 'Cha' of the said resolution merely stated that with r,
regard to inter se seniority of these Junior Engineers, the decision be
taken after obtaining opinion from the Personnel Department.

In the aforementioned premise, it was obligatory on the part of
the Personnel Department itself to take a firm decision laying down
D the criteria for fixadon of inter se seniority in absence of any statute
or rules having the force of law. Admittedly, the Personnel Department
did not issue any such order. The said resolution dated 17. l .1979 was
an executive order. passed by the State of Bihar in terms of Article
162 of the Constitution of India. By reason of the said policy decision,
E the Personnel Department alone was delegated with the power to lay
down the criteria for determining the inter se seniority. The Personnel
Department neither in fact delegated the said power to the Water
Resources Department nor in law could do the same. The purported
~·
order dated 22.12.1992 issued by the Water Resources Department I

was, therefore, illegal having been rendered by an authority which
F had no jurisdiction therefor."

It is well settled that classification on the basis of educational
qualification is a reasonable one and satisfies the doctrme of equality as
adumbrated in Article 14 of the Constitution of India.
G In The State ofJammu & Kashmir v. Triloki Nath Khosa and Ors., AIR
(1974) SC 1, a Constitution Bench of this Court held':

"On the facts of the case, classification on the basis of educational
qualifications made with a view to achieving administrative efficiency
cannot be said to rest on any fortuitous circumstances and one has
H
-- CHANDRAVATHI P.K.v. C.K. SA.II [SINHA, J.]

always to bear in mind the facts and circumstances of the case in
351
A
order to judge the validity of a classification. The provision in the
1939 Rules restricting direct recruitment of Assistant Engineers to
Engineering graduates, the dearth of graduates in times past and their
copious flow in times present are all matters which can legitimately
enter the judgment of the rule-making authority. In the light of these B
facts, that judgment cannot be assailed as capricious or fanciful.
Efficiency which comes in the trial of a higher mental equipment can
reasonably be attempted to be achieved by restricting promotional
opportunity to those possessing higher educational qualifications and
we are concerned with the reasonableness of the classification not
with the precise accuracy of the decision to classify nor with the C
question whether the classification is scientific. Such tests have long
since been discarded ... "

[See also Government of West Bengal v. Tarun K. Roy and Ors.,
(2003) 9 SCALE 671.)
D
The State as an employer is entitled to fix separate quota of promotion
for the degree-holders, diploma-holders and certificate-holders separately in
exercise of its rule making power under Article 309 of the Constitution of
India. Such a rule is not unconstitutional. The State may, therefore, in our
opinion, cannot be said to have acted arbitrarily by giving an option to such
diploma-holders who acquired a higher qualification so as to enable them to E
either opt for promotion in the category of degree-holder or diploma-holder.
Such option was to be exercised by the concerned officer only. He, in a given
situation, may feel that he would be promoted in the diploma-holders quota
earlier than degree-holders quota and vice versa but once he opts to join the
stream of the degree-holders, he would be placed at the bottom of the seniority
list. We, therefore, are of the opinion that the impugned judgments cannot be
F
sustained which are set aside accordingly. We direct that the cases of all the
concerned empl0yees be considered strictly in terms of the extant rules. This
direction shall also govern the appeal preferred by the State of Kerala.

The appeals are disposed of accordingly. No costs. G
B.S. Appeals disposed of.