Shiju.C.S v. N.Sulfikkar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS FRIDAY, THE 13TH DAY OF MARCH 2015/22ND PHALGUNA, 1936 OP(KAT).No. 69 of 2015 (Z) --------------------------- AGAINST THE ORDER DTD.28.10.14 IN TA.228/14 & ORDER DTD.16.2.15 IN RA.34/14 IN TA.228/14 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM PETITIONER(S)/REVIEW APPLICANTS/NOT PARTIES IN THE T.A: ------------------------------------------------------------------------------------------------------------
1. SHIJU.C.S., S/O.C.K.SIVAN AGED 37 YEARS ASSISTANT ENGINEER, LSGD SECTION OFFICE ARAKKULAM GRAMA PANCHAYATH, IDUKKI RESIDING AT SREENANDANAM CHOTTANIKKAL HOUSE EAST OF MANGATTU JUNCTION THODUPUZHA EAST PO IDUKKI.
2. MAXWELL K.C., S/O.P.S.CHACKO AGED 30 YEARS ASSISTANT ENGINEER, LSGD SECTION OFFICE KUDAYATHU GRAMA PANCHAYATH, IDUKKI RESIDING AT KUPPEPARAMBIL PIRAVOM PO, PIRAVOM ERNAKULAM DISTRICT-686 664.
3. SHERIN MARY SAM, D/O.N.P.SAMUEL AGED 28 YEARS ASSISTANT ENGINEER, LSGD DIVISION OFFICE DISTRICT PANCHAYATH OFFICE, IDUKKI RESIDING AT NATTUKALLUNKAL HOUSE, CHOVOOR PO, MANKOMPU KOTTAYAM DISTRICT 686586
4. ARIF MUHAMMED M. AGED 39 YEARS S/O.M.MEERA SAHIB, ASSISTANT ENGINEER CHENGANNUR MUNICIPALITY, ALAPPUZHA DISTRICT RESIDING AT RAMLETH MANZIL, VALAMCHUZHY PATHANAMTHITTA -689 645.
5. SUDEEP A.S. AGED 37 YEARS S/O.A.K.SUDEENDRAN, ASSISTANT ENGINEER LSGD SECTION OFFICE, VATHIKKUDY GRAMA PANCHAYATH IDUKKI DISTRICT RESIDING AT ARAPPANAL HOUSE KUNNATHADY PO, MARAKKUNNAM, IDUKKI - 685 563. BY ADVS.SRI.K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN RESPONDENT(S)/APPLICANTS & RESPONDENTS 1 TO 13: ----------------------------------------------------------------------------------------------
1. N.SULFIKKAR ASSISTANT ENGINEER, LSGD SECTION, KOTTAKKAL MALAPPURAM 676 503.
OP(KAT).69/15
2. P.J. THANKACHAN ASSISTANT ENGINEER, LSGD SECTION, VENGOLA PERUMBAVOOR ERNAKULAM - 683 542
3. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT LOCAL SELF GOVERNMENT DEPARTMENT GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM-695 001.
4. THE CHIEF ENGINEER OFFICE OF THE CHIEF ENGINEER LOCAL SELF GOVERNMENT DEPARTMENT THIRUVANANTHAPURAM-695 001.
5. P.P.RAMESAN ASSISTANT ENGINEER, LSGD SECTION KALYASSERY GRAMA PANCHAYATH, KALYASSERY KANNUR-670 562.
6. PRASAD D, ASSISTANT ENGINEER VALLIKKUNNAM GRAMA PANCHAYATH VALLIKKUNNAM ALAPPUZHA - 690 501.
7. C.M. JANCY ASSISTANT ENGINEER, MATTANNUR MUNICIPALITY MATTANNUR KANNUR - 670 702.
8. SHIBU L. NALPAT NALAPAT HOUSE, CHANGAMPUZHA NAGAR PO KOCHI-33 (PRESENTLY WORKING AS ASSISTANT ENGINEER AT MUNICIPAL CORPORATION OF KOCHI , ERNAKULAM - 682 011)
9. SUMA P. SURENDRAN RESIDING AT 49/997-82, GAYATHRI AC EMERALD PONEKKARA EDAPPALLY KOCHI-682 024 (PRESENTLY WORKING AS ASSISTANT ENGINEER AT MUNICIPAL CORPORATION THRISSUR 680001).
10. NISSAR A.
MALAYIL KIZHAKETHU, PUTHIYAVILA KAYAMKULAM-690 531 (PRESENTLY WORKING AS ASSISTANT ENGINEER ALUVA MUNICIPALITY, ALUVA, ERNAKULAM-683 101)
11. SHEEJA S.S.
ROSE COTTAGE, M-14, CHITRA NAGAR VATTIYOORKAVU THIRUVANANTHAPURAM-695 013 (PRESENTLY WORKING AS ASSISTANT ENGINEER CHALAKKUDY MUNICIPALITY, PIN-680307)
12. K.T.MANJUBALA D/O.A.K.THEVAN KOYIPARAMBATH, PERUMBALAM PO CHERTHALA-688524 (PRESENTLY WORKING AS ASSISTANT ENGINEER MUNICIPAL CORPORATION OF KOCHI, ERNAKULAM 682011)
OP(KAT).69/15
13. K.G. SAHUJI A/8 CHAITANYA, JAI NAGAR MEDICAL COLLEGE PO THIRUVANANTHAPURAM-695 011 (PRESENTLY WORKING AS DEPUTATION AS TECHNICAL OFFICER ENVIRONMENT, KERALA SUSTAINABLE URBAN DEVELOPMENT PROJECT TRANS TOWERS 5TH FLOOR, VAZHUTHACAUD THIRUVANANTHAPURAM-19, KERALA
14. G. RADHAKRISHNAN NAIR ANUPAMA TC 19/2115, MUDAVANMUGAL POOJAPPURA THIRUVANANTHAPURAM-12.
15. RENJI, ASSISTANT ENGINEER LOCAL SELF GOVERNMENT SECTION, RANNI PAZHAVANGADI SECTION, PATHANAMTHITTA-689 672. R3,R4 BY SR GOVERNMENT PLEADER SRI.M.K.ABOOBACKER THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 13-03-2015, ALONG WITH OP(KAT).70/15 AND 72/15, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
APPENDIX IN OP(KAT).69/15 PETITIONER'S EXHIBITS:
ANNEXURE A: TRUE COPY OF TA.228/14 ALONG WITH EXHIBITS P1 TO P6(C) FILED BEFORE THE KAT, TRIVANDRUM.
ANNEXURE B: TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT IN TA.228/14 BEFORE THE KAT.
ANNEURE C: TRUE COPY OF THE REPLY AFFIDAVIT ALONG WITH EXTS.P7 AN DP8 FILED BY RESPONDENTS 1 AND 2 TO THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT IN THE TA.
ANNEXURE D: TRUE COPY OF THE ORDER DATED 28.10.14 IN TA.228/14 OF THE HON'BLE KAT.
ANNEXURE E: TRUE COPY OF THE REVIEW APPLICATION NO.34/14 FILED BY THE PETITIONERS BEFORE THE TRIBUNAL WITH LEAVE.
ANNEXURE F: TRUE COPY OF THE ORDER DATED 16.2.2015 OF THE KAT DISMISSING REVIEW APPLICATION NO.34/14.
/TRUE COPY/ PS TO JUDGE
ANTONY DOMINIC & ALEXANDER THOMAS, JJ.
----------------------------------- O.P(KAT).Nos.69, 70 & 72 of 2015 ----------------------------------- Dated this the 13th day of March, 2015
JUDGMENT
Antony Dominic, J.
1.These original petitions are filed by persons who were not parties to the proceedings before the Kerala Administrative Tribunal but later, unsuccessfully sought review of the orders of the Tribunal. They are challenging the orders of the Tribunal which was declined to be reviewed.
2.Briefly stated, the case is that the applicants before the Tribunal initially joined their parent department as Diploma holders. After entering into service, they acquired Degree and got appointed as Assistant Engineers. While they were continuing in their parent department, by order dated 13.12.2007, Local Self Government Department Engineering Service was constituted. After the constitution of the service as above, the applicants before the Tribunal, who were thus working as Assistant Engineers, were absorbed into the Local Self Government Engineering Service from their parent department, viz.,
OP(KAT).69/15 & con. cases Irrigation Department, Public Works Department and Municipal Common Service.
3.Subsequently, by Government Order dated 27.11.2007, Special Rules were framed for Local Self Government Engineering Service with effect from 1.1.2008. In this Rule, Assistant Engineer falls in category No.5. Rule 3 provides for the method of appointment to higher posts as promotion from this category and Rule 4 provides that the qualification for the post of Assistant Executive Engineer is Degree or Diploma, coupled with the prescribed period of service in the category of Assistant Engineer. Subsequently, the Government issued order dated 16.7.2009, amending the Special Rules and adding a note which provided that promotion to the category of Assistant Executive Engineer shall be made from among direct recruitees and diploma holders in the feeder category in the ratio of 3:1. Based on the note thus introduced, a provisional seniority list of direct recruits, diploma holders and certificate holders in the category of Assistant Engineer was published by the Chief Engineer.
OP(KAT).69/15 & con. cases 4.It was at that stage, the applicants before the Tribunal filed writ petitions before this Court and obtained an interim order of stay of the amendment of the Special Rules introducing the note. On the constitution of the Kerala Administrative Tribunal, the writ petitions were transferred to the Tribunal. By the impugned orders in these original petitions, the Tribunal held the amendment unconstitutional and consequentially, the seniority list also.
Petitioners herein were not parties to the proceedings before the Tribunal. Therefore, they filed review application and that application also was heard and rejected by the Tribunal. It is in this background, these writ petitions are filed. 5.We heard learned senior counsel for the petitioners and considered the submissions made.
6.We note from the orders of the Tribunal that before it, two contentions were raised. One was that the note as introduced by the amendment was unworkable and the second was that the amendment was unconstitutional. The first contention was rejected
OP(KAT).69/15 & con. cases and the second contention was upheld by the Tribunal. In these original petitions, we are concerned with the second finding of the Tribunal, the validity of the amendment.
7.We have already seen that by the Government Order dated 27.11.2007, Special Rules were introduced and degree holders and diploma holders in the category of Assistant Engineer were eligible for promotion to the post of Assistant Executive Engineer without any distinction whatsoever. It was thereafter that the amendment was introduced, by which, the feeder category for promotion to the category of Assistant Executive Engineer included only direct recruits and diploma holders in the ratio of 3:1.
This necessarily means that even those diploma holders who entered service as such and acquired Degree thereafter are discriminated in the matter of promotion to the higher post of Assistant Executive Engineer irrespective of their birth mark as diploma holders. Such a classification which is not based on the qualification, experience or any other relevant considerations, is totally vitiated by the vice of
OP(KAT).69/15 & con. cases Article 14 and it was therefore, that the Tribunal has rightly interfered with the amendment in question.
Having considered the submission made at the Bar, we are not inclined to find anything vitiated in the view taken by the Tribunal. Original petitions fail. They are accordingly dismissed.
Sd/- ANTONY DOMINIC, Judge.
Sd/- ALEXANDER THOMAS, Judge.
kkb.