C A MOHAMMED Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioners are Junior Engineers (now redesignated as Assistant Engineers) in the Public Works Department. THE next higher post is that of Assistant Engineer (now redesignated as Assistant Executive Engineer ). I shall refer to the designation as it stood before re-designation. Appointment to the post of Junior Engineer is partly by direct recruitment and partly by promotion. This is in the ratio of 6:3:1 for appointment by direct recruitment of graduates, and for appointment by promotion of diploma holders and certificate holders. For promotion to the higher post of Assistant Engineer, the ratio is 3:1 between graduates and diploma holders. THE certificate holders are not qualified for further promotion.

(2.) SEEING that there was a great deal of frustration among Junior Engineers caused by the bottle neck created by the ratio, the Pay commission made the following suggestion: "coming to the question of stagnation, one way of dealing with it is to increase promotion posts [executive Engineers and assistant Engineers]. But that can be done only on the basis of recruitment. The other alternative is to create a higher grade for Junior Engineers. For this, there is a case, in view of the present stagnation. As in the case of junior Agricultural Officers and Veterinary Surgeons, Junior Engineers will be placed in two grades on a ratio of 1:3 between the higher grade and lower grade. The scales of pay for the higher grade will be Rs. 700/4270 and for the lower grade Rs 600-1100 Whether promotion to the higher grade should be on the basis of the combined seniority in the cadre of Junior Engineers or otherwise may be decided by Government". [para. 56. 15 of the Report of the 3rd kerala Pay Commission. ] On the basis of this recommendation the Government by ext. P1 (in O. P. No. 783 of 1980) created two grades among Junior Engineers: a higher grade on the scale of Rs. 700-1270 and a lower grade on the scale of Rs. 600-1100 in the ratio of 1:3 between the two grades. So far the order is consistent with the recommendation of the Pay Commission. But the order has further provided that the choice for the higher grade is to be on the basis of the ratio of 6:3:1 among graduates, diploma holders and certificate holders. This is what Ext P1 says: "2. In the circumstances Government order that the promotion to the higher grade allowed for Junior Engineers (redesignated as assistant Engineers) will be made on the basis of the ratio of 6:3:1 among graduates, diploma holders and certificate holders. " The ratio adopted is the ratio that is applicable for the appointment of Junior Engineers. This part of Ext. P1 providing for the ratio is challenged. The petitioners' counsel Shri Dinesan submits that the entry into higher grade does not involve any promotion, although Ext. P1 refers to "promotion to the higher grade. " He submits that higher grade does not mean higher responsibilities or more difficult work. Junior Engineers in both the grades do like work and shoulder like responsibilities although they would not be paid alike. . To classify persons in the category of Junior engineers on the basis of qualification to accord special favours is violative of Art. 14 and 16 of the Constitution Counsel says that this is opposed to the principle laid down by the Supreme Court in matters of the classification. This argument is supported by Shri K. J. Joseph appearing for the petitioners in O P. No. 4082/1979 where identical questions are raised.

(3.) IN my view the classification adopted in Ext. P1 with reference to the ratio of 6:3:1 among graduates, diploma holders and certificate holders for choice of persons to be grouped as higher grade is invalid and violative of the constitutional principle of equality. IN the circumstances I quash Para. 2 of Ext. P1 and direct the Government to apply their mind to the mode of classification which they would adopt either with reference to seniority in the category of Junior Engineers or with reference to selection by merit, as urgently as possible, and, in any case, not later than three months from today.