WP(C)/19058/2012 of ROSILY AUGUSTINE Vs STATE OF KERALA on 31 December 2012

1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT WATER RESOURCES DEPARTMENT SECRETARIAT,THIRUVANANTHAPURAM, PIN-695 001. REPRESENTED BY THE SECRETARY TO GOVERNMENT WATER RESOURCES DEPARTMENT SECRETARIAT,THIRUVANANTHAPURAM, PIN-695 001.

2. THE KERALA WATER AUTHORITY REPRESENTED BY ITS MANAGING DIRECTOR JALA BHAVAN, VELLAYAMBALAM THIRUVANANTHAPURAM-695 033. REPRESENTED BY ITS MANAGING DIRECTOR JALA BHAVAN, VELLAYAMBALAM THIRUVANANTHAPURAM-695 033.

3. THE CHIEF ENGINEER (HRD & GENERAL) KERALA WATER AUTHORITY VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN-695 033. KERALA WATER AUTHORITY VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN-695 033.

ADDL.R4 TO R6 AREIMPLEADED:

R4. SUDHEER M., ASSISTANT ENGINEER, KERALA WATER AUTHORITY, SEWERAGE PROJECT SECTION, PLAMOOD, THIRUVANANTHAPURAM. KERALA WATER AUTHORITY, SEWERAGE PROJECT SECTION, PLAMOOD, THIRUVANANTHAPURAM.

R5. SANTHOSH KUMAR.S., ASSISTANT ENGINEER, KERALA WATER AUTHORITY, (LAAK DETECTION & SERVEILLANCE SQUAD) P.H. CIRCLE, THIRUVANANTHAPURAM KERALA WATER AUTHORITY, (LAAK DETECTION & SERVEILLANCE SQUAD) P.H. CIRCLE, THIRUVANANTHAPURAM

WP(C).No. 19058 of 2012 (F)

R6. RIJU V. ASSISTANT ENGINEER, KERALA WATER AUTHORITY WATER SUPPLY SECTION, PAYYANNUR, KANNUR DISTRICT.

ADDL.R4 TO R6 ARE IMPLEADED AS PER ORDER DT 11/10/2012 IN IA 13634/2012.

R1 BY ADV. GOVERNMENT PLEADER SRI.T.R. RAJESH

R2 & 3 BY ADV. SRI.MILLU DANDAPANI, SC, KERALA WATER AUTHORITYADDL.R4-R6 BY ADVS. SRI.C.P.SUDHAKARA PRASAD (SR.)

SRI.S.RAMESH SRI.NAVEEN.T SMT.POOJA SURENDRAN

BP

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/11/2012 ALONG WITH WP(C) 25195/2012, THE COURT ON 31-12-2012 DELIVERED THE FOLLOWING:

WP(C).No. 19058 of 2012 (F)

PETITIONER(S) EXHIBITS :

APPENDIX

EXT.P1 : TRUE COPY OF THE CIRCULAR NO.KWA/JB/SY.CELL/10987/2008, DTD.16.2.2009 OF THE CHIEF ENGINEER (HRD & GENERAL) OF KERALA WATER AUTHORITY. OF THE CHIEF ENGINEER (HRD & GENERAL) OF KERALA WATER AUTHORITY.

EXT.P1(a): TRUE COPY OF THE RELEVANT EXTRACT OF THE APPENDED SENIORITY LIST OF ASSISTANT ENGINEERS (DEGREE HOLDERS). LIST OF ASSISTANT ENGINEERS (DEGREE HOLDERS).

EXT.P2 : TRUE COPY OF THE SPECIAL RULES FOR KERALA PUBLIC HEALTH ENGINEERING SERVICE. ENGINEERING SERVICE.

EXT.P3 : TRUE COPY OF THE JUDGMENT DTD.1.2.2012 IN WPC NO.30602/2011-A OF THIS HON'BLE COURT. HON'BLE COURT.

EXT.P4 : TRUE COPY OF THE JUDGMENT DTD.15.3.2012 IN WA NO.497/2012 OF A DIVISION BENCH OF THIS HON'BLE COURT. DIVISION BENCH OF THIS HON'BLE COURT.

EXT.P5 : TRUE COPY OF THE GO(MS)NO.51/2012/WRD DTD.24.7.2012.

EXT.P6 : TRUE COPY OF THE JUDGMENT IN WPC NO.6295/2007-Y OF THIS HON'BLE COURT. COURT.

RESPONDENTS' EXHIBITS :

EXT. R4(a):COPY OF THE CIRCULAR DT 5/6/1984 ISSUED BY THE KERALA WATER & WASTE WATER AUTHORITY.WASTE WATER AUTHORITY.

EXT.R4(b):COPY OF THE ORDER, G.O.DATED 3/10/1994 ISSUED BY THE GOVERNMENT.GOVERNMENT.

EXT.R4(c):COPY OF THE CIRCULAR DT 26/9/2012 OF THE CHIEF ENGINEER, KERALAWATER AUTHORITY.WATER AUTHORITY.

EXT.R4(d):COPY OF THE SENIORITY LIST OF ASST. ENGINEERS (DEGREE QUOTA) PUBLISED AS PER EXT.R4(c).PUBLISED AS PER EXT.R4(c).

EXT.R4(e):COPY OF THE ORDER DT 11/2/2011 ISSUED BY THE KEALA STATE ELECTRICITY BOARDELECTRICITY BOARD

//TRUE COPY//

P.A.TO JUDGE

P.R. RAMACHANDRA MENON, J.

---------------------------------------

W.P.(C). Nos. 19058 & 25195 of 2012 ----------------------------------------Dated this the 31[st] day of December, 2012JUDGMENT

It is settled law, that Statutory Rules cannot be amended by way of Executive Orders. But if the Rules applicable to oneparticular service/establishment stand adopted in respect ofanother service/establishment, will it still retain the status as“Statutory Rules” or should it be treated as onlyExecutive/Administrative orders which can be amended by way ofsubsequent Executive/Administrative orders without necessitatingamendment of original rules? This is the basic question to beconsidered in these cases.

2. The challenge raised by the petitioners is in respect ofG.O.(MS)No.51/2012/WRD dated 24.07.2012 produced as Ext.P5in W.P.(C).No. 19058/2012 and P4 in W.P.(C).No. 25195/2012,whereby it has been stipulated that, while effecting promotion tothe post of Assistant Executive Engineer from the FeederCategory of Assistant Engineer, in tune with the prescribed ratioof 3:1, senior Degree holders shall not be overtaken by the junior

Diploma holders in respect of the quota earmarked for the Diploma holders. The crux of the contention is that, theGovernment Order is mainly beyond the rule making power of theGovernment and further, it seeks to modify the existing StatutoryRules, which is not legally possible without amendment of theRules, in view of various binding judicial precedents, includingthe law declared by the Full Bench of this Court reported inSugathan v. Shahul Hameed (2006 (4) KLT 54).

3. Parties and the proceedings are referred to, as given inW.P(C).No.25195/2012, unless otherwise mentioned separately.

4. The petitioners are contestants for promotion to theposts of Assistant Executive Engineer in the respondent KeralaWater Authority, under the 'Diploma quota'. The respondent'Water Authority' was formed way back in the year 1984(originally, it was the Kerala Water and Waste Water Authority;which name was subsequently changed as Kerala Water Supplyand Sewerage Authority in 1986 and thereafter as the KeralaWater Authority). The appointments of officers and staff are tobe made as provided under Section 8 of the Act; Sub Section 3

of which says that, except as provided in the said Section, appointment and service of officers and staff shall be governedby the Rules made by the Government from time to time. Factremains that, no Rules have been framed by the Government inthis regard.

5. As early as on 5.6.1984, a Circular bearing No.KW&WWA.297/84 was issued by the erstwhile Kerala Water andWaste Water Authority (copy of which has been produced alongwith the counter affidavit of the 3[rd] respondent as Ext.R3(a)),whereby the Water Authority decided that, till such time specificRules regarding the salaries, allowances and other conditions ofservice of various officers and employees of the Authority wereformed, the Rules mentioned therein shall apply mutatismutandis to the employees and officers of the Authority. KeralaState Public Health Engineering Special Rules are specificallyincluded in the said set of Rules adopted by the Authority.

6. The dispute is in respect of promotion to the post of'Assistant Executive Engineer' from the cadre of AssistantEngineer. The post of Assistant Engineer is to be filled up either by direct recruitment from persons having Degree or by way ofpromotion of employees having such other qualifications asprescribed and placed in the feeder category, whose promotionpost is that of Assistant Executive Engineer (formerly named asAssistant Engineers under the relevant Rules). The method ofrecruitment, qualifications etc., are provided under Ext.P1 Rules,which stipulates that, promotion to the post of 'AssistantExecutive Engineer' shall be effected from both the eligibleDegree/Diploma holders in the ratio of 3:1. It is in view of thesaid stipulation providing a specific ratio, that, separate senioritylists are mandated by the Water Authority in respect of the cadreof Assistant Executive Engineers. By virtue of the operation ofthe adopted Rules as above, it so happened that quite a lot ofDiploma holders (who were promoted as Assistant Engineers) gota march over the senior Degree holders, to be elevated as'Assistant Executive Engineers' in the quota earmarked for them.Naturally, there was a heart burn for the senior Degree holders inso far as, the colleagues who were working as AssistantEngineers having much lesser service in the feeder category of

Assistant Engineer and having lesser level of qualification (someof whom were working even under the Degree holders whileholding the lower post in the ladder, before being promoted asAssistant Engineers) came to be promoted and appointed asAssistant Executive Engineers, thus bringing them above thesenior Degree holders, on a fine morning.

7. The anomalous situation was brought to the notice of Water Authority and also the Government, by the aggrievedparties, at different points of time. It was also brought to thenotice of the Government that, similar anomalous situationresulted because of blindly following the ratio in some otherdepartments, was caused to be redressed by issuance ofappropriate Executive/Administrative orders and that the samewas upheld by this Court in Public Works EngineersAssociation v. P.T. Philipose and others (ILR 1998 (1)Kerala 217).

8. As mentioned above, the anomalous situation was takennote of by the Government in the erstwhile PWD department,when it was bifurcated into 'Roads and Buildings' and 'Irrigation'

Departments years back. By virtue of the option given, most ofthe Degree holders opted to the Roads and Buildings Division,which made them to wait in the queue for quite long, while theirjuniors who were Diploma holders got promoted to the nexthigher category. After considering the anomaly, the Government,by way of an Executive order, i.e., G.O(P) No. 36/94/PW&T(almost in similar terms as in the case of the impugned orderherein) dated 3.10.1994, stipulated that, junior Diploma holderscannot have a promotion before promoting the senior Degreeholders in the quota. The said G.O was subjected to challengebefore this Court by the aggrieved parties, mainly contendingthat, the G.O transgressed into the Rules virtually amending thesame, which was not legally sustainable. The matter finally cameup for consideration before a Division Bench of this Court and asper the decision reported inPublic Works EngineersAssociation v. P.T. Philipose and others (ILR 1998 (1)Kerala 217)., it was held that there was no such transgressionin to the field of Rules and that the G.O only intended to fill upthe gap in respect of which nothing was mentioned under the

Rules. In so far as there was no attempt to alter the quotastipulated under the Rules, the way in which it was to be giveneffect to, could very well be stipulated by the Government andthus sustained the G.O and it has become final. Similar coursewas pursued to rectify the anomaly, by issuing necessary ordersin the 'Irrigation Department' and so also in the 'Kerala StateElectricity Board'.

9. While so, the 2[nd] respondent Water Authority resolved torequest the Government to issue an order similar to or extendingthe provisions of G.O(P) No. 36/94/PW&T dated 3.10.1994 to theKerala Water Authority as well, for rectifying the anomaly. Whenthe matter taken up by the Water Authority before theGovernment was pending, some Degree holders approached thisCourt by filing W.P.(C).No. 30699/2003, seeking to direct theGovernment to issue the orders as proposed by the respondentWater Authority. Pursuant to the judgment dated 17.10.2003,the matter was considered by the Government and the proposalwas rejected as per Ext.P2 communication dated 31.05.2004,referring to the judgment of the Division Bench in

W.A.No.762/2003 and subsequent dismissal of the SLP preferredtherefrom, by virtue of which, the G.O(P) No. 36/94/PW&T dated3.10.1994 had become irrelevant.

10. Years thereafter, some other Degree holdersapproached this Court by filing WP.(C).No. 30602/2011, seekingto apply the provisions of the G.O(P) No. 36/94/PW&T dated3.10.1994, for promotion to the cadre of Assistant ExecutiveEngineers in the Kerala Water Authority as well. The said writpetition was dismissed by this Court as per Ext.P3 judgmentdated 1.2.2012, holding that the petitioners were not entitled toget the benefit, unless the relevant Special Rules were amended,also observing that, it will be open for the Government to rectifythe anomalies, if any, by effecting appropriate amendment to theSpecial Rules. Challenge raised against the said verdict, by wayof Writ Appeal, did not turn to be fruitful, as the appeal wasdismissed as per judgment dated 15.3.2012 in W.A.No.497/2012( copy of which has been produced as Ext.P4 in W.P.(C).No.19058/2012). The issue was brought to the notice of theGovernment by the aggrieved parties, particularly, by way of a representation preferred by the Assistant Executive Engineers'Association functioning in the respondent Water Authority. TheGovernment examined the matter in detail and after detaileddiscussion with the Water Authority and considering exactlysimilar circumstances which were caused to be resolved in PWD,KSEB, Irrigation Department etc., arrived at a finding that therequest of the Association was genuine and the anomaly shouldbe rectified.

11. It was accordingly, that the Kerala Public ServiceCommission was consulted for advice, for issuance of orders byway of 'Executive orders', in view of the fact that, framing ofSpecial Rules (which was under consideration of the Government,having already issued the Draft Rules) incorporating necessaryremedial clause would take more time, to have it finalized.Based on the consent given by the PSC, the Government issuedExt.P4 G.O. dated 24.7.2012, mainly stipulating that an AssistantEngineer who possesses Diploma will not be eligible forpromotion in the category of Assistant Executive Engineer over agraduate Engineer having longer service in the category of W.P.C. Nos. 19058 & 25195 of 2012-10- Assistant Engineer, unless the latter is otherwise declaredineligible for promotion to the post of Assistant ExecutiveEngineer. This G.O is under challenge in both these writpetitions.

12. The 3[rd] respondent in W.P.(C).No. 25195/2012, joininghands with two other persons, have chosen to get impleaded inW.P.(C).No.19058/2012 as additional respondents 4 to 6 therein.The said respondents have filed a detailed counter affidavit inboth the cases, producing copies of various documents sought tobe relied on by them. When the matter came up for considerationbefore this Court, it was submitted on behalf of both the sidesthat, there was no much dispute with regard to the factualposition and that the only issue to be considered was a 'legalquestion', as to whether the impugned G.O was correct orsustainable in law; i.e., whether the stipulation as contained inthe impugned G.O could have been brought about by way of anExecutive Order, instead of amending Ext.P1 Rules. As agreed bythe parties, the writ petitions were taken up for final hearing andheard accordingly.

13. Mr.K.R.B. Kaimal, the learned senior counsel

appearing for the petitioner in W.P.(C).No. 25195/2012 and Mr.S.P. Aravindakshan Pillay appearing for the petitioner in the othercase, sought to highlight the unsustainablility of the impugnedorders in the light of the relevant provisions of law and thebinding judicial precedents. The impugned order was sought to besustained by Mr. C.P. Sudhakara Prasad, the learned SeniorCounsel appearing on behalf of the contesting respondents,mainly pointing out that, issuance of Executive Orders for fillingup the gap in the Rules, by way of remedial measures, has beenheld as sustainable, by a Division Bench of this Court in PublicWorks Engineers Association v. P.T. Philipose and others(ILR 1998 (1) Kerala 217) and further that, the judgmentrendered by the Full Bench of this Court in 2006 (4) KLT 54(cited supra) is no more in existence, having already been setaside by the Supreme Court. The submission made by thelearned Senior Counsel was supported by Mr. Benny Gervacis, thelearned Counsel appearing for the Kerala Water Authority andalso by Mr.T.R. Rajesh, the learned Government Pleader appearing for the State.

14. With regard to the source of power for having issuedthe impugned G.O., the submission made by the learned counselfor the petitioners is that, admittedly no Rules have been framedby the Government under Rule 64 to govern the field ofappointment and conditions of service of officers and staff, asdealt with under Section 8 of the Water Supply and SewerageAct, 1986. Section 19 of the Act refers to the transfer ofemployees to the Water Authority in respect of whom the serviceconditions are stipulated to be governed on the same set ofprovisions under the Act/Rules which were applicable to themwhen they were employed by the 'Public Health Department' ofthe Government. This however does not have any application tothe case in hand, as all the petitioners herein came to beappointed to the service of the Kerala Water Authority directlyand not by way of transfer. It is stated that the Kerala StatePublic Health Engineering Special Rules and Kerala Public HealthEngineering Subordinate Service Rules stand adopted by theKerala Water Authority and as such, the terms and conditions are to be strictly in tune the relevant provisions of Special Ruleswhich cannot be altered by any Executive orders. The learnedcounsel further submits that, the only other provision availableunder the 'Act' is Section 55, which refers to the powers of theGovernment to give directions. It is stated that the power of theGovernment to give directions is only on questions of 'policy'andnot on matters in relation to the condition of service ofemployees.

15. Reliance is sought to be placed on similar provisions as contained in Section 78 A of the Electricity Supply Act 1948,which came to be decided by a Full Bench of this Court asreported in A.M. Mani v. Kerala State Electricity Board (1967KLT 885), whereby it was held that the expression “functions” inSection 78 A of the Act can only have relation to the primary andessential functions of the Board, which cannot stretched to reachthe field of governing the service conditions of the employees.But the circumstance leading to the said case stand more on adifferent footing and the question examined therein as discerniblefrom paragraph '5' and '7' was, more with regard to whether the

Electricity Board's decision was substantially influenced by theGovernment's directive and if so, to be vitiated, since “functions”referred to under Section 78 A must be understood in such anmanner that the amplitude of power to issue directions is alimited one in relation to the primary functions of the Boardconcerned with generation, distribution and utilization of theelectricity, development of water power etc. In the instant case,it is to be noted that the petitioners themselves concede inparagraph '5' of W.P.(C).No. 25195/2012that the 2[nd] respondentWater Authority itself had resolved as early as in the year 2002to request the Government to issue an order akin to G.O(P) No.36/94/PW&T dated 3.10.1994, to be made applicable to KeralaWater Authority as well, in the matter of promotion from Degreeand Diploma Assistant Engineers in the ratio of 3:1. Thefunctions of the Water Authority are separately enumeratedunder Section 14, wherein Clause 'VII' deals with theassessment of Recruitments of Manpower and Training in relationto Water Supply and Sewerages Services in the State. Anyhow,detailed discussion in this regard may not be necessary, for several reasons as detailed in the following paragraphs.

16. True, it has been held by a Division Bench of this Court in Kerala Irrigation Engineers Association v. State ofKerala (2003 (3) KLT 325) that, when the Rule postulates thepost to be filled up from three different posts prescribing a ratio,separate channel for promotion based on separate seniority list isvery much contemplated. As such, there cannot be any commonseniority with regard to the position in the Feeder Category andthe seniority has to be maintained, confining the same to theconcerned channel. The SLPs preferred there from i.e., SLPs19150 and 19151 of 2003 were dismissed on 27.10.2003. Whilerendering the said verdict, the earlier verdict passed by anotherDivision Bench of this Court in Public Works EngineersAssociation v. P.T. Philipose and others (ILR 1998 (1)Kerala 217) was also brought to the notice of the Bench and itwas dealt with in paragraphs 28 and 29. The Bench observedthat the earlier Division Bench in the concerned case had clearlyheld that the Executive Order ( G.O(P) No. 36/94/PW&T dated3.10.1994) did not amend the Rules and it was only on account of special circumstance in the PWD (Buildings and Roads) that the Government had issued a special order; which was not theposition involved in the case dealt with in Kerala IrrigationEngineers Association v. State of Kerala (2003 (3) KLT325). The only dictum therein is that, no Executive order can beissued contrary to the Statutory Rules; with regard to which,there cannot be any dispute and the question involved herein iswhether the impugned G.O has amended any existing Rules andfurther, whether the existing Rules/norms could be regarded asStatutory Rules to have the dictum applied.

17. In the case considered by the Full Bench Sugathan v.

Shahul Hameed (2006 (4) KLT 54), the concerned Executiveorder stipulated that, while applying the ratio of 3:1, the SeniorExcise Guard, the minimum educational qualification of pass inSSLC or its equivalent shall not be superseded by a Junior ExciseGuard who did not possess qualification of pass in SSLC;correctness and sustainability of which was under challenge. TheBench observed that the Government Order does have the effectof amending the Special Rules and that the Special Rules cannot be amended by any Executive order. The Bench also observedthat, the very prescription of ratio envisages the by-passing ofthe normal rule of seniority for effecting promotion. An almostsimilar grievance was considered by a Division Bench of thisCourt in W.A.Nos. 2936 and 2960 of 2007 and 540/2008, inrespect of the promotion to the post of Assistant ExecutiveEngineers in the KSEB and adoption of the G.O.(P)No.36/94/PW&T dated 3.10.1994 issued in respect of the PWDby the KSEB as per the relevant Board order. The Benchobserved that, persons with inferior qualifications and lesserservice are getting promoted to higher posts and are acting assuperiors to the colleagues who are senior in the Feeder Categoryand having higher qualification as well and hence interferencewas declined, also after taking note of the decision rendered bythe Full Bench in Sugathan v. Shahul Hameed (2006 (4) KLT54) as borne by Ext.R3(e) judgment produced along with thecounter affidavit of 3[rd] respondent. It is brought to the notice ofthis Court from the part of the 3[rd] respondent that the decisionrendered by the Full Bench was subjected to challenge by filing

SLP before the Supreme Court and during the pendency of theSLP, the Government retrospectively amended the relevant Rules(Excise and Subordinate Service Rules, 1974), whereby thedesired objective (as earlier provided by the G.O which was setaside by the Full Bench) was brought about with retrospectiveeffect and accordingly, the Civil Appeals were allowed as borneby Ext.R3(d) judgment dated 11.12.2009. It is also revealedfrom Ext.R3(d) that the Apex Court, while allowing the CivilAppeals specifically held that, the judgment passed by the FullBench of this Court could not be sustained in the abovecircumstance and accordingly, it was set aside, leaving it openfor the aggrieved parties to challenge the amendment to theSpecial Rules, if so advised. As it stands so, the decision inSugathan v. Shahul Hameed (2006 (4) KLT 54) hasvanished from the stage and the remaining one is that of theDivision Bench of this Court in Public Works EngineersAssociation v. P.T. Philipose and others (ILR 1998 (1)Kerala 217) (sustaining the G.O(P) No. 36/94/PW&T dated3.10.1994).

18. As pointed out from the part of the 3[rd] respondent, it isquite possible to bring about change in service conditions bypassing a mere resolution, in the absence of any Rules orRegulations in that behalf, as held by the Apex Court inShamkant Narayan Deshpande v. Maharashtra IndustrialDevelopment Corporation and another (AIR 1993 (SC)1173). Similarly, as pointed out by the learned GovernmentPleader, a Constitution Bench of the Supreme Court has held inAhmedabad Manufacturing and Calico Printing Co. Ltd,Ahmedabad etc., v. State of Gujarat and others (AIR 1967(SC) 1910) that, it cannot be said that, till statutory Rulesgoverning promotion to Selection Grade are framed, theGovernment cannot issue administrative instructions regardingthe principles to be followed. The position was reiterated by athree member Bench in Union of India v. H.R. Patankar andOthers (1984 (Supp) SCC 359) as well, holding that,administrative instructions can be issued to govern the seniorityand promotion, to set right any lacuna in the existing Rules. It isin the said circumstance, that the decision rendered by the

Division Bench of this Court in Public Works EngineersAssociation v. P.T. Philipose and others (ILR 1998 (1)Kerala 217) has to be considered, whereby it has beencategorically held that G.O(P) No. 36/94/PW&T dated 3.10.1994does not bring about any amendment to the existing Rules, butfor filling up the gap within the permissible limits. Exactly similarcourse was subsequently pursued in respect of other services aswell, such as, Irrigation Department, Electricity Board etc., andthe very same objective is sought to be achieved in the presentcase as well, by virtue of Ext.P5/P4 G.O dated 24.7.2012respectively in the concerned cases.

19. While considering the plea of the petitioners withreference to the binding judicial precedents that, Statutory Rulescannot be amended by Executive orders, the basic issue to beconsidered is whether such a circumstance does exist in thepresent case. Admittedly, no Rules have been framed by theGovernment governing the service conditions of officers andemployees of the Kerala Water Authority invoking the rulemaking power under Section 67 of Water Supply and Sewerage W.P.C. Nos. 19058 & 25195 of 2012-21- Act, 1986. What has been done is, adoption of the relevantRules as per Ext.R3(a) Circular dated 5.6.1984. By virtue of thespecific reference by way of incorporation under Section 19 of theAct, in respect of the transferred employees who came to theservice of Water Authority, it could be said that, the same set ofrules continue to govern them and hence statutory in character.But in respect of others, whether the 'adopted Rules' continue tohave the same status and characteristics as of Statutory Rule, isthe question to be considered. This issue involving the serviceconditions under the respondent Water Authority itself came tobe considered by the Apex Court in a decision reported in Jacobv. Kerala Water authority (1990 (2) KLT 673). Paragraph'14' of the said judgment explains the position in the followingterms:

“The second batch of workers

comprise those who were appointedbetween 1[st] April, 1984 and 4[th] August,1986 by the Authority itself. Under Sec.8(1) of the Act the power to appoint theSecretary and other officers and staff

members vests in the Authority. Onlywhen a post above the rank of anExecutive Engineer is to be created thatthe sanction of the State Governmentbecomes necessary under the proviso.Sub-section (2) to which sub-section (1) issubject expects the Authority to seek theprevious sanction of the Government if itdesires to employ a servant of the Centralor State Government on deputation andnot otherwise. It is, therefore, clearbeyond any manner of doubt that thepower to appoint the staff-members withwhom we are concerned, solely vests inthe Authority. Since the Act is broughtinto force w.e.f. 1[st] March, 1984 thequestion of regularisation of the servicesof staff-members appointed after that datemust be examined with reference to thepower found in S.8(1) of the Act.However, the contention of the Authority is based on R.9(a)(i) of the Rules, which itclaims to have adopted under ResolutionNo.8 dated 25[th]April, 1984. TheAuthority contends that by the thrust ofthis rule the appointments were limited to180 days only and since the said ruleshad statutory flavour the Authority wasbound to act in accordance therewith. wehave extracted the relevant part of thisrule earlier. Since these rules wereframed in exercise of power conferred bythe proviso to Art. 309 of the Constitutionthey are undoubtedly statutory incharacter but Mr. Poti was right in hiscontention that they do not retain thatcharacter in their application to the staff-members of the Authority since they havebeen adopted by the Authority under aresolution. These rules would undoubtedlybe statutory in character in theirapplication to the members of the Kerala Subordinate Services for whom they wereenacted but when any other authorityadopts them by a resolution for regulatingthe services of its staff, the rules do notcontinue to remain statutory in theirapplication to the staff of that Authority.They are like any other administrativerules which do not have statutory force.It was not contended, as indeed it couldnot be, that these rules derive statutoryforce from S.64 or 65 of the Act. S.64confers the rule making power on theState while S.65 empowers the Authorityto make regulations with the previousapproval of the Government. It is nobody'scase that these rules were adopted afterobtaining the previous approval of theGovernment. If that be so, we mustaccept Mr. Poti's submission that theserules in their application to the staff-members of the Authority appointed after

1[st] April, 1984 have no statutory flavour or force.”

20. From the above, it is seen that, the relevant Rules adopted by the Water Authority, would undoubtedly be statutoryin character in its application, to the members of the concernedservice for whom they were enacted. But when any otherauthority adopts them by a resolution for regulating the servicesof its staff, the Rules do not continue to remain statutory in theirapplication to the staff of that authority. As such, Ext.P1 Rules(Kerala State Public Health Engineering Special Rules) whichprescribed the ratio and such other particulars for promotion tothe post of Assistant Executive Engineer are liable to be treatedin the same manner as Executive orders/Administrative orders; inso far as they have been adopted by the Kerala Water Authority.Since the Rules are silent as to how the ratio is to be worked outand in what manner the posts have to be filled up withoutdisturbing the ratio, it is open for the Government to provide byway of appropriate measures passing necessary orders in thisregard. As such, the challenge raised against the impugned

order is liable to be repealed and it is ordered accordingly.

21. Coming to the rights and liberties of the eligible Degreeand Diploma holders, there is no dispute that the post ofAssistant Executive Engineerings have to be filled up by followingthe ratio of 3:1. It is stipulated under clause/paragraph 3(i) ofExt.P4 G.O that Assistant Engineers who possess Diploma will notbe eligible for promotion in the category of Assistant ExecutiveEngineer, over a Graduate Engineer having longer service in thecategory of Assistant Engineer, unless the Degree holder isotherwise declared ineligible for promotion to the post ofAssistant Executive Engineer. The very same G.O stipulatesunder clause/paragraph 3(ii), that if there is a shortfall in theprescribed ratio, the MD, Kerala Water Authority will take actionto rectify the same, at the time of every subsequent promotionto the cadre of Assistant Executive Engineer by reviewingwhether there are eligible candidates for promotion from thequota other than Degree holders to maintain the ratio. How thisstipulation is workable to maintain the ratio is not discernibletherefrom.

22. While sustaining the stipulation similar toclause/paragraph 3(i) of Ext.P4 as contained in G.O(P) No.36/94/PW&T dated 3.10.1994, by the Division Bench of thisCourt in Public Works Engineers Association v. P.T.Philipose and others (ILR 1998 (1) Kerala 217), the Benchobserved that there was no infringement to the 'Quota Rule' asexplained in the counter affidavit. It was accordingly observedthat, in so far as the quota was not distributed or varied, it couldnot be said that the G.O intended to vary the existing Rules.Coming back to the case in hand, it is to be noted that, themode of recruitment to the post of Assistant Engineer (FeederCategory) is either by way of direct recruitment of Degreeholders or by promotion of the existing employees having suchother prescribed qualifications. As a natural consequence, theDegree holders coming to the common pool of AssistantEngineers will mostly be of young blood, while the other categoryby way of promotion may be reaching the pool after years' longservice and hence of much advanced in age. The quotaearmarked for the Degree holders is nearly 75%, while for promotion it is only 25%. As such, when a shortfall is located inthe prescribed ratio, how the MD of the Water Authority canrectify the same at the time of every subsequent promotion, is amatter of mystery. Since the chance for a Diploma holder(coming in the quota of promotion) to be of younger in age inrelation to the Degree holder is comparatively less or remote,by the time the senior Degree holders in the common pool areelevated, most of the Diploma holders who are standing in thequeue may get retired, attaining the age of superannuation. Thiscycle may get repeated in the subsequent promotion exercises aswell.

23. In spite of the specific queries raised by this Court,neither the learned Government Pleader, nor the learnedStanding Counsel for the Water Authority or even the contestingrespondents were not in a position to offer any plausibleexplanation in the above regard. It is quite possible to keep theposts unfilled, if amendment to the recruitment rules is on theway, so as to have the posts filled up based on the Rulesproposed to be brought about. This is the law declared by the

Supreme Court in Dr. K. Ramulu and Another v. Dr. S.Suryaprakash Rao and Others (1997 (3) SCC 59). But then,if the posts are to be kept vacant on the basis of a consciousdecision, in anticipation of the change in Rules, it has to bemade applicable to all which in turn may adversely affect theorganizational interest, for want of sufficient officers to man theposts. In the said circumstance, while holding that the impugnedG.O. is not liable to be intercepted with regard to the authorityto have issued the same, this Court finds that, proper remedialmeasures to maintain the ratio of 3:1 are also necessarily to bestipulated by the Government itself. If this is left out withoutclarity, only the Degree holders will get promoted and theDiploma holders may have to wait indefinitely and get lost at last.24. It is brought to the notice of this Court that, Ext.P4 G.Odoes not have any retrospective effect. There is a case for the 3[rd]respondent that the vacancies cannot be segregated and relianceis sought to be placed on a decision rendered in DeepakAgarwal and Another v. State of Uttar Pradesh and Others(2011 (6) SCC 725) (paragraph 26). The said decision was W.P.C. Nos. 19058 & 25195 of 2012-30- rendered in relation to the amendment of the relevant provisionsof the UP Government Servants (Criterion for Recruitment byPromotion) Rules 1994. The circumstance under which theobservation was made in paragraph '26' stands entirely on adifferent footing and it cannot be pressed into service of thepresent case as such. This Court has already held, placingreliance on the decision rendered by the Division Bench of thisCourt in Public Works Engineers Association v. P.T.Philipose and others (ILR 1998 (1) Kerala 217), that therelevant G.O has not provided any amendment to the existingRules. It only fills up the gap, as to the way in which thepromotion is to be exercised between the Degree holders andDiploma holders, applying the ratio. This obviously does not haveany retrospective effect and as such, this Court is of the firm viewthat the vacancies which arose prior to the date of issuance ofsaid G.O shall be filled up as it was being done earlier and it shallhave effect only in respect of the vacancies arisen from the dateof issuance of the said G.O. It is ordered accordingly.

25. In the said circumstances, challenge against the impugned G.O is repelled. However, this Court finds it fit andproper to direct the 1[st] respondent/State to pass necessary ordersensuring maintenance of the ratio of 3:1 facilitating occupation ofthe requisite No: of posts by the Diploma holders as well,applying the ratio to the cadre strength. Appropriate orders inthis regard shall be passed in accordance with law, at theearliest, at any rate within 'three months' from the date of receiptof a copy of this judgment. It is made clear that, no post/vacancycoming within the quota earmarked for the Diploma holders shallbe caused to be filled up even temporarily, by accommodatingany Degree holder.

Both the writ petitions are disposed of.

P.R. RAMACHANDRA MENON, JUDGE.

Kp/-