1. The question which the petitioner, a Senior among Junior Engineers (now Assistant Engineers) but a non-graduate, asks is the same which Bhagwati, J., posed on behalf of persons like the petitioner in the decision in Mohd. Shujat Ali v. Union of India, (1975) 3 SCC 76 : AIR. 1974 SC. 1631,—

“I am senior to the graduate Supervisor who is intended to be promoted. I am more suitable than he is. It is no doubt true that I am a non-graduate, but my not being a graduate has not been branded as a disqualification. I am regarded fit for promotion and, like the graduate Supervisor, I am equally eligible for being promoted. My technical equipment supplemented by experience is considered adequate for discharging the functions of Assistant Engineer. Then why am I being denied the opportunity for promotion and the graduate Supervisor is preferred?”

2. There cannot be any doubt about the answer after the decision of a Division Bench of this Court in Abdul Basheer v. Karunafcaran, ILR. 1981 (2) Kerala 526. It can only be an invalidation of the rule which provides for this preference for the graduate junior. Now to the facts, which makes the above question relevant and the only answer obligatory. The petitioner, a diplomate entered service as an Overseer in Kerala Engineering Subordinate Service (Electrical Wing) and was promoted in his turn as per the Special Rules as Junior Engineer on 17-4-1971 by Ext. R3(a) order. He could and should have been promoted regularly to that vacancy on 10-10-1969. That is clear from Ext. P1 list, which gives his date of promotion notionally as 10-10-1969. Ext. R3(a) ordered the promotion only provisionally, not because of the existence of any of the factors provided for under the relevant rules which enable an appointment to be made out of turn in an emergency or without regard to qualifications or claims of others or to save some money by avoiding regular promotion. It was so done apparently because the administrative practice had been that for a long time past. That was not meant to deprive the incumbent of his seniority is certain because in the list of Junior Engineers as on 1-4-1978, he was assigned notional date of promotion as 10-10-1969. In short, what the petitioner got by his promotion whether on 17-4-1971 or on 10-10-1969, was not a stop-gap or fortuitous promotion. It was not a windfall promotion.

3. Respondents 3 and 4, who were originally on the party array, and respondents 5 and 6, who came by orders on C.M.P Nos. 8716 of 1983 and 13027 of 1983, are graduates who were appointed in 19-3-1974 and later as Junior Engineers. All of them are graduates. They were shown as Junior to the petitioner in Ext. PI provisional gradation list of Junior Engineers as on 1-4-1978. The petitioner was rank No. 13 whereas respondents 2, 3 and 4, were 30, 31 and 32 in that list. They would ordinarily have been appointed as Assistant Engineers (now Assistant Executive Engineers) according to the Special Rules promulgated on 6-2-1967 only later than the petitioner. But on 19-2-1974 the Government issued G.O.Ms 24/74.PW dated 19-2-1974, introducing a note to Rule 2 of the Engineering Service (Electrical Wing) Rules, to the following effect:

“Note:—50% of the total number of posts of Assistant Engineers (Electrical) shall be reserved for those Junior Engineers possessing any of the qualifications mentioned in items 1 to 3 of the Annexure. In their absence the posts shall be filled up by those possessing any of the qualifications mentioned in items 4 and 5 of the Annexure.”

4. The petitioner who was the seniormost awaiting promotion was superceded when a vacancy arose in 1976 and his Junior holding 28th rank was promoted, because of his graduation. The next vacancy was to arise in 1981. The petitioner hoped that he would get it, because even according to 1:1 ratio provided in the note, every alternative vacancy has to be filled up by an undergraduate. Finding that the State wanted to fill up all promotion posts of Assistant Executive Engineers with graduates till 50 per cent of the cadre strength was achieved, he came to this Court seeking a direction that he be promoted in the vacancy created in GO.Ms 110.PW&E/81 and quash the appointment, if any, of his junior degree holders against that post. This court did not pass any interim order of stay and hence the second respondent was appointed against the vacancy. Counter affidavits were filed by all the respondents. After the hearing commenced, the petitioner filed C.M.P No. 7371 of 1983 seeking to amend the Original Petition so as to incorporate a prayer for invalidating the note to rule 2 of the Special Rules. This was allowed and fresh counter affidavits were filed by the respondents.

5. The position emerging from the pleadings is that the petitioner and respondents 3 and 4 and those others possessing the qualifications prescribed in items 1 to 3 of the Annexure A belong to the same class of employees and are ranked in one and the same integrated seniority list. The ranking in the said list was based on length of service only. The petitioner and respondents 3 to 6, and those who possess degree qualifications are performing the same functions, drawing the same salary and are holding interchangeable posts. It is further averred by the petitioner, that the qualification based on possession of degree alone for purposes of promotion or preferments in service is discriminatory and violative of the petitioner's fundamental rights for equality before law and equal protection of the laws. Out of 39 posts of Junior Engineers/Assistant Engineers 7 are degree-holders, 21 diploma holders and 8 certificate holders. They are ranked in the same gradation list, perform the same functions and belong to the same class. There are 14 posts of Assistant Executive Engineers, of which 5 are held by degree-holders and 8 by diploma-holders.

6. Counsel submits that the reservation of 50 per cent of the vacancies in favour of the graduates is resulting in the graduate juniors being preferred for purposes of promotion, and this reservation is liable to be struck down on the basis of the observations of the Supreme Court in the decision reported in (1975) 3 SCC 76 : AIR. 1974 SC. 1631, and a Bench decision of this court reported in ILR. 1981 (2) Kerala 527. He submits, in the alternative, that even assuming that the rule is valid, it can have only prospective effect, and every alternative vacancy arising after the date of its promulgation should necessarily go to a non-graduate Assistant Engineer.

7. The basic facts which are pleaded by the petitioner are not in controversy in this case. Graduates and non-graduates in the category of Junior Engineers/Assistant Engineers were treated as a common feeder category for appointment to the post of Assistant Executive Engineers. Graduates and non-graduates are borne on a common seniority list. They perform the same functions and discharge the same duties. The posts are interchangeable. The salary scale is common and the other service conditions are identical. In other words, irrespective of educational qualifications, or source from which they were appointed, graduate and non-graduate Assistant Engineers have been integrated and fused into a common class, and it was from this category consisting of graduates and non-graduates alike that appointments were being made to the category of Assistant Executive Engineers under the Special Rules, which were promulgated in 1967. It is not pleaded in this case, much less proved that at anytime after the formation of the Kerala Engineering Service (Electrical Wing), the graduates were treated as a distinct and separate category for any service purposes.

8. It is submitted in the additional counter affidavit filed by respondents 3 and 4 that with the availability of the required number of graduates, the State Government appears to have thought that a reservation in favour of graduates for improving the quality of service was necessary in public interest, and that was why the reservation of 50 per cent of the vacancies in the promotion posts in favour of the graduates was thought of. It is also submitted that a distinction between diploma holders and certificate holders was maintained in the Kerala Engineering Subordinate Service (Electrical Wing), in which the petitioner was initially appointed, and the petitioner got his promotions only on the basis of the preference as a diploma holder. It is further submitted that in other branches of the Engineering Service, not only by virtue of the special rules, but even by earlier executive orders preference in favour of graduates was provided for. It is sought to be made out, that preference in favour of graduates now incorporated into the special rules by G.O.Ms 24/74.PW was nothing new and has ample historical justification. It was also submitted that M.P Menon, J., in a later decision upheld a similar ratio, and that decision applies to the facts of this case also.

9. The controversy involved in this case can be resolved only by determining whether there had been a complete fusion and integration of graduate and non-graduate Junior Engineers into one common class or whether they still retain their separate identities. In case if they have been fully integrated and fused into a common class, preference in favour of juniors of that class based only on the origin or source of recruitment or educational qualification for purposes of promotion will doubtless be discriminatory and violative of Article 16 of the Constitution of India. If on the other hand, there has not been a complete integration or full fusion; and each group retain its separate identity in the feeder category with distinct designation, or scale of pay or duties, powers and functions, separate treatment of these groups in matters of promotion will not be liable to be attacked. If historical reasons justify the continuance of the distinct and separate treatment, that may enable the classification to pass the test of reasonableness. For the purposes of integration of personnel coming from distinct and separate groups, the Government may adopt any reasonable policy in arranging their rank and seniority. The Government may even insist, as a matter of policy, that for the purpose of improving the quality of public service, particular posts shall be filled up by graduates only. The only objection seems to be that if non-graduates are also treated as qualified, their juniors shall not be permitted to steal a march over the non-graduates only due to graduation or other like fortuitous factors.

10. The Supreme Court of India had examined these questions in some of its landmark decisions. They are Mervyn Continho v. Collector of Customs, AIR. 1967 SC. 52, Roshanlal v. Union of India, AIR. 1967 SC. 1889, S.M Pandit v. State of Gujarat, (1972) 4 SCC 778 : AIR. 1972 SC. 252, (1974) 1 SCC 317 : AIR. 1974 SC. 259 etc. In the first of these decisions, the point which came up for consideration before the Supreme Court was whether an appraiser promoted to the grade of principal appraisers could be discriminated in the matter of seniority in the grade of principal appraisers on the ground of their entry into service either as direct recruits or promotees. The Customs Department sought to carry their birthmarks into the grade of principal appraisers, and determine their seniority accordingly. The Supreme Court disallowed it pointing out that once persons from two sources came into one integrated grade of principal appraisers, their seniority was to be governed by their length of service in that grade. In Roshanlal v. Union of India, AIR. 1967 SC. 1889, the situation which the Supreme Court had to tackle was identical to the case in AIR. 1967 SC. 52, where there had been a complete fusion and integration of personnel coming from different sources into a common feeder category. The court held that discrimination for the purpose of promotion on the basis of the source of appointment was violative of Articles 14 and 16 of the Constitution of India. In S.M Pandit v. State of Gujarat, (1972) 4 SCC 778 : AIR. 1972 SC. 252, the Court again had to face a similar situation, where directly appointed Mamlatdars were accorded a favoured treatment qua the promotee Mamlatdars in the matter of promotion to the post of Deputy Collector. Mamlatdars, whether appointed directly or by promotion, constituted one class with the same pay scales, same functions and were holding interchangeable posts. Therefore, it was held that no reservation could be made in favour of the directly appointed Mamlatdars for promotion to the cadre of Deputy Collectors. In the decision reported in Deodhar v. State of Maharashtra, (1974) 1 SCC 317 : AIR. 1974 SC. 259, almost the same problem came up for consideration in a slightly different manner. The dispute was between directly recruited Mamlatdars and promotees and the preference in the matter of promotion as Deputy Collectors. In regard to the discrimination between the promotees and recruits, the court reaffirmed its decision in S.M Pandit's case, (1972) 4 SCC 778 : AIR. 1972 SC. 252, and invalidated the invidious discrimination between persons belonging to the same category. Then the court proceeded to examine the complaint against senior Mamlatdars being compelled to officiate as Deputy Collectors later than their juniors by insisting upon Division-wise seniority for Mamlatdars and Division-wise officiation as Deputy Collectors, but eventual State-wise promotion and ranking as Deputy Collectors. The court struck down this rule as discriminatory in so far as it allowed a junior Mamlatdar to supercede persons with longer service depending entirely on the fortuitous circumstance as to when a vacancy in the post of Deputy Collector arises in the Division to which the Mamlatdar belongs. The Supreme Court observed:

“Where promotion is made by selection on the basis of merit-cum-seniority, every Mamlatdar should be able to enter the lists; he should have equal opportunity with others for being considered for promotion. There must be one common door for entry into the cadre of Deputy Collectors through which every Mamlatdar should be equally entitled to enter, provided he is selected on the application of the principle of merit-cum-seniority. There cannot be six doors of entry, one door available exclusively for the Mamlatdars of each division. That is bound to create inequality of opportunity in the matter of promotion.”

“The vice of inequality of opportunity continues to inhibit promotions to the cadre of Deputy Collectors. The procedure followed by the State Government in making promotions must, therefore, be held to be violative of Art. 16 of the Constitution.”

11. Dealing with the earlier aspect of the discrimination between direct recruits and promotees it was observed:

“It can hardly be disputed that both the directly recruited Mamlatdars as well as the promotee Mamlatdars form one class. They are both known by the same designation. They have same scales of pay. They discharge the same functions. The posts held by them are interchangeable. There is nothing to show that the two groups are kept apart. Both are merged together in the same class. It is not competent to the Government thereafter to discriminate between directly recruited Mamlatdars and promotee Mamlatdars in the matter of further promotion to the posts of Deputy Collector. That would be violative of Article 16 of the Constitution.”

12. The principle which emerges from these decisions is that if there has been fusion and integration of persons recruited/appointed from different sources into a common feeder category having same designation, same pay scales, same functions and duties, and if the posts are interchangeable, no discrimination can thereafter be made for the purpose of promotion, based entirely on the source of recruitment/appointment of the respective persons or any such fortuitous factor A quota rule which enables an officer who is junior in the common feeder category to steal a march over his senior in that category, except by some recognized method of selection, has been frowned upon by the Supreme Court.

13. Counsel for the petitioner referred me to the decision reported in Mohd. Shujat Ali v. Union of India, (1975) 3 SCC 76 : AIR. 1974 SC. 1631. He refers particularly to paragraph 28 of the judgment, where three decisions in State of Mysore v. Narasing Rao, AIR 1968 SC. 349, where higher pay scale was permitted on the basis of higher educational qualifications; Union of India v. Dr. (Mrs.) S.B Kohli. (1973) 3 SCC 592 : AIR. 1973 SC. 811, where prescription of a post-graduate degree in particular specialty as necessary for appointment as Professor in Orthopedics was upheld; and State of, J. & K. v. T.N Khosa, (1974) 1 SCC 19 : AIR. 1974 SC. 1, where a rule which provided that degree-holders in the cadre of Assistant Engineers only shall be entitled to be considered for promotion as Executive Engineers and Diploma-holders shall not be eligible for such promotion was approved by the Supreme Court were referred to by the Supreme Court. After a detailed consideration of these decisions, the Supreme Court considered the question whether preference in favour of graduate engineers belonging to a common feeder category over non-graduate engineers who were seniors can pass the test of Articles 14 and 16 of the Constitution of India. It was observed:

“The result of fixation of quota of promotion for each of the two categories of Supervisors would be that when a vacancy arises in the post of Assistant Engineer, which, according to the quota is reserved for graduate Supervisors, a non-graduate Supervisor cannot be promoted to that vacancy, even if he is senior to all other graduate Supervisors and more suitable than they. His opportunity for promotion would be limited only to vacancies available for non-graduate Supervisors. That would clearly amount to denial of equal opportunity to him. When there is a vacancy earmarked for graduate Supervisors, a non-graduate Supervisor would be entitled to ask: I am senior to the graduate Supervisor who is intended to be promoted. I am more suitable than he is. It is no doubt true that I am a non-graduate, but my not being a graduate has not been branded as a disqualification. I am regarded fit for promotion and, like the graduate Supervisor, I am equally eligible for being promoted. My technical equipment supplemented by experience is considered adequate for discharging the functions of Assistant Engineer. Then why am I being denied the opportunity for promotion and the graduate Supervisor is preferred?” There can be no satisfactory answer to this question.”

14. Counsel submits that identical is the situation present here, and the only answer which can satisfactorily be given in the context of the fundamental rights enshrined in Arts. 14 and 16 of the Constitution of India shall be that there can be no discrimination in favour of junior graduates belonging to the common feeder category discharging the same functions, holding interchangeable posts, having the same pay scales and subject to same service conditions. I do not think that there is any other possible answer.

15. Counsel for the respondents referred me to the decision reported in Bishan Sarup v. Union of India ((1975) 3 SCC 116 : AIR. 1974 SC. 1618). The ratio of the decision does not apply to a situation where persons belonging to common feeder category are discriminated against on the basis of higher educational qualifications alone. In that decision, the court had to consider the situation where seniority of persons from two different groups, recruits and promotees, was to be determined for purposes of enabling integration and fusion to form a common category. It was observed by Palekar, J., in that decision:

“In the case before us, in the absence of a rule determining inter se seniority between the two classes of Income-Tax Officers, there is really no integration of the service, which is unavoidably necessary for the purpose of effective promotions. One cannot speak of promotions from a cadre unless it is fully integrated.”

and again—

“As said earlier, the problem before us is not of making discrimination in the matter of promotion from an integrated service constituted from two sources. The problem is of integrating two sources in one service by adjusting seniority inter se.”

16. It is of course true that the court is not concerned with the policy of the Government in recruiting officers to any service since the Government is presumed to know what is best in public interest. If, therefore, in integrating and fusing personnel drafted from two different sources to form a common unit, ratios are adopted by the Government, such a decision in the exigencies of service cannot ordinarily be called in question in proceedings before courts. But, the situation is entirely different when on the formation of a common category where integration and fusion are full and complete, and the personnel from different sources had lost their birth marks in the process of fusion and integration, further preferences are attempted to be given on the basis of source of recruitment or qualifications alone. The present is one such, unlike the case which was considered by the Supreme Court in the decision referred to above.

17. Counsel for the respondents then submitted that the observations of the Supreme Court in the decisions reported in (1975) 3 SCC 76 : AIR. 1974 SC. 1631 will not apply to this case for three reasons viz., (i) that the petitioner, who was only a provisional promotee under Ext. R3(a), is not senior to respondents who were regularly appointed, though later; (ii) that the Governmental policy to better the quality of service by insisting upon a proportion at least of such superior posts for being filled by graduates cannot be called in question by this Court; and (iii) that the petitioner himself, who was promoted as Junior Engineer on the basis of 3:2 ratio between diploma and certificate holders in the Kerala Engineering Subordinate (Electrical) Service, cannot challenge the ratio between graduates and non-graduates.

18. As for the first objection, it can be seen from Ext. P1 that a regular vacancy of a Junior Engineer was available as on 10-10-1969 and that post was filled up, and that too only provisionally, only on 17-4-1971, by Ext. R3(a). None of the respondents were in service either on 10-10-1969 or on 17-4-1971; nor was it disputed that on either of these two dates the petitioner was qualified. Thus, we get a position where regular vacancy was not filled up since 10-10-1969. It was filled up by a qualified hand on 17-4-1971, by provisional promotion: there were no other qualified candidates who could have been regularly appointed against that vacancy, and the petitioner was sought to be given the benefit of the service since 10-10-1969 by a notional promotion, as is evident from Ext. P1 list. The services of a qualified hand entitled to be promoted/appointed in terms of the special rules or other service conditions even in the absence of any other qualified candidate, and yet remaining for long periods as provisional appointee/promotee, and therefore that service not counting for purposes of seniority had come up for consideration before the Supreme Court in a series of decisions. It was held repeatedly that it was not the nomenclature of the appointment that was important, but the substance of the appointment. The most important of these decisions is Baleshwar Dass v. State of U.P (1980) 4 SCC 226. Krishna Iyer, J., observed:

“If a public servant serves for a decade with distinction in a post known to be not a casual vacancy but a regular post, experimentally or otherwise kept as temporary under the time-honoured classification, can it be that his long officiation turns to ashes like a Dead See fruit because of a label; and his counterpart equal in all functional respects but with ten years less of service steals a march over him because his recruitment is to a permanent vacancy? We cannot anathematize officiation unless there are reasonable differentiations and limitations.”

And again—

“The normal rule consistent with equity is that officiating service even before confirmation in service has relevancy to seniority if eventually no infirmities in the way of confirmation exist. We see nothing in the scheme of the Rules contrary to that principle. Therefore, the point from which service has to be counted is the commencement of the officiating service of the Assistant Engineers who might not have secured permanent appointments in the beginning and in that sense may still be temporary, but who, for all other purposes, have been regularised and are fit to be absorbed into permanent posts as and when they are vacant”

19. In Harjeet Singh v. Union of India, (1980) 3 SCC 205, the Supreme Court had to consider the question of a junior non-cadre officer, who was included in the select list for appointment/promotion to the Indian Police Service, and who had longer officiating service in that cadre than his senior in the State cadre with higher rank in the select list. Chinnappa Reddy, J. observed:

“We are, therefore, satisfied that the benefit of continuous officiation in a senior post cannot be denied to an officer appointed to the Indian Police Service merely on the ground that an officer senior to him in the State Police Service did not so continuously officiate.”

20. It was further held:

“There is no reason why a junior non-cadre officer should loose the benefit of his continuous officiation in a cadre post merely because a non-cadre officer senior to him in the select list did not continuously officiate likewise. In such a situation, it would be for the Government of India to consider whether the relevant rules may not be so relaxed as to enable such non-cadre officer to add his officiation in a non-cadre post to his officiation in a cadre post, regard being had to the circumstances under which the officer had to work in a non-cadre post, while his junior in the select list was made to fill the cadre post. But, surely, it cannot work to the prejudice of the junior officer in the select list so as to nullify the actual, continuous, officiating service rendered by him.”

21. In the case reported in Chandramouli v. Chikkalakkalath, (1980) 2 SCC 557, the question which came up for consideration of the Supreme Court was as to whether the retrospective regularization of the temporary service of allottees to the reorganized State of Karnataka with effect from 2nd November, 1956, and consequent seniority gained by such allottees over persons directly recruited against regular vacancies in the meantime, were legal and proper. The Court held that the retrospective regularization of service giving credit to the continuous non-regular/non-permanent and officiating service of allottees to the new State of Karnataka, with effect from a day after the date of integration, viz., 1-11-1956, was unassailable, even though the effect of that was to alter the seniority of recruits regularly appointed to the vacancies in Karnataka State between 1-11-1956 and 1-1-1960.

22. It is evident from these decisions of the Supreme Court that it is not the nomenclature of the post or the appointment that is determinative, but it must be the nature of the appointment with reference to the substance of the matter, whether the appointment was in deviation of the rules, whether it was in derogation to the rights of others, whether any qualified senior was overlooked in that process, whether the exigencies of services compelled the Government to take a short cut for a short time, and whether the appointment was a fortuitous or stopgap arrangement. If the vacancy is filled up by a regular appointee, qualified, eligible and senior in the feeder category, for a long or indeterminate term, and there was no other qualified candidate whose rights were affected, long and continuous officiation although on the basis of a temporary appointment/promotion, does not have the result of rendering the entire officiating service of no avail at all for any service purposes.

23. What is temporary appointment contemplated by rule 9 and temporary promotion under rule 31 of the Kerala State and Subordinate Services Rules is an appointment/promotion necessary to fill up a vacancy immediately, even in deviation of the rules, even by an unqualified hand, since it is essential to fill up that post immediately, and the filling up of that post by a regular qualified hand will be unduly delayed, or may involve avoidable public expenditure. Except in those cases where the appointee/promotee gets a windfall and gets a fortuitous chance, the terminology, or nomenclature employed, shall not be determinative of the rights of incumbents in service, serving long terms of officiation.

24. It is evident in the case on hand, that as on 17-4-1971, when Ext. R3(a) order was passed, none of the respondents were in service. According to the rules then in existence, the petitioner was fully qualified, and he was so qualified even on 10-10-1969. It seemed to be so to the State Government itself, because, that was the date which they proposed to assign him for purposes of promotion in Ext. PI list. The appointment against such a permanent post regularly available in favour of a duly qualified candidate without affecting the rights of anybody else, cannot be nullified entirely as if like a dead sea fruit as Krishna Iyer, J., observed in the decision reported in (1980) 4 SCC 226. I am not therefore inclined to consider the first objection the counsel for the respondents put forward. Even otherwise, the fact that the petitioner's promotion is proposed to be regularized with effect from 10-10-1969 was notified as early as in 1978, and this proposal had not at any time been opposed by the respondents render this objection unacceptable.

25. The second objection is that the governmental policy to better the quality of services by insisting on a proportion of posts of superior service being filled up by graduates cannot be called in question in proceedings before this Court. It is of course true, that the Government has got a discretion to decide as a matter of policy, as to what should be the proportion of graduates and non-graduates in service, or even as to whether no non-graduates at all shall be appointed to any particular service. Where a common feeder category is formed of graduates and non-graduates, a discrimination thereafter on the basis of educational qualifications alone, however, is not a matter to be left to the policy dictates of the Government. That has overtones in constitutional imperatives. If such be done, and such be approved. Articles 14 and 16 of the Constitution will become meaningless dead letters. An interpretation which will render the constitutional provisions ineffective cannot commend itself for acceptance before this court. That disposes of the second objection of the respondents.

26. The third objection that the Kerala Engineering Subordinate (Electrical) Service Rules provides for a ratio between diploma-holders and certificate holders and the petitioner who was a diploma-holder was a beneficiary of such ratio and hence he cannot be heard to attack the ratio in the higher service between graduates and non-graduates does not seem to me to be well founded. If the Subordinate Service Rules, which contains this discriminatory provision is challenged in appropriate proceedings, that may perhaps be liable to be set aside. The fact that the petitioner obtained the benefit of a reservation is not a reason that he shall be out suited when a challenge against the rule on the basis of Article 16 of the Constitution is raised by him before this Court. I need hardly say that the conduct of no party shall disentitle that person from enforcement of his constitutional rights. In this case, the constitutional rights for equality before law and equal protection of the laws with particular emphasis in public employment are in issue. If the conduct of the petitioner does not disentitle him from raising before this court the plea of violation of these fundamental rights, I am bound to uphold his plea.

27. Counsel for the respondents then referred me to the decision of M.P Menon, J., reported in 1983 KLT. 746. The facts of the case, made out that there was no fusion or integration between diploma holders and certificate holders into one, that the diploma holders were treated as a separate unit apart from certificate holders and that reservation in favour of diploma holders was available according to the statutory rules in Madras and Executive Orders in the former T.C State. It was held on those facts that no question of discrimination can arise. These facts are discernible from para 19 of the Report.

28. Counsel for the petitioner referred me to the decision reported in Abdul Basheer v. Karmakaran, ILR. 1981 (2) Kerala 527, where a Division Bench of this court, on a review of the entire case law that far, held:

“It could be seen from the above narration concerning orders of Government relating to the subject that there has been an attempt to apply the ratio between graduates and non-graduates in one form or other since 1957 though it did not take within its sweep the entire body of Preventive Officers in the Excise Department. It was not as if in the post of Preventive Officers there were two classes of persons, graduates and non-graduates considered as two separate classes either in the matter of pay or in the matter of service conditions. Once they were appointed or promoted as Preventive Officers, graduates and non-graduates were members in one and the same class and but for the occasion of applying the ratio for promotion the difference between them arising from different qualifications would never have been noticed. They were not treated as two different classes having separate identities. Therefore, despite what has been urged by learned Advocate General it is not possible to find that there were two classes of Preventive Officers, graduates and non-graduates, and therefore provision of different quotas to them in the matter of promotion would not be objectionable as arbitrary.”

29. I am inclined to hold that on the facts of this case the above principles squarely apply.

30. M.P Menon, J., in the decision reported in 1983 KLT. 746 has referred to the Division Bench decision and observed that the Division Bench based its conclusions on three aspects, and they are:

“(i) Preventive Officers alloted from Madras, and Preventive Officers appointed after the formation of the Kerala State, were being treated as one group all throughout, without distinctions based graduation;

(ii) The petitioners before the court were themselves persons appointed after 1-11-1956, to whom the old T.C ratio was not applicable; and

(iii) Graduate and non-graduate officers were doing the same type of work in the field, and that there was nothing to suggest, either from the history of the services or from facts otherwise disclosed, that graduation had any nexus with the needs of the higher post.”

31. and observed:

“Such is not the position in the present case, so far as engineering personnel are concerned, the distinction between diploma and certificate people was always there.”

32. Admittedly, the graduate and non-graduate junior Engineers were being treated as one group all throughout without any distinction in the matter of designation, pay scale or other service conditions. The petitioners and respondents are those appointed after 1-11-1956 and hence the T.C ratio did not apply to them and graduates and non-graduates are both doing the same work and there is nothing to suggest either from the history of the service or from facts otherwise disclosed that graduation had any nexus with the needs of the higher posts so as to eliminate the non-graduate seniors with longer experience, and prefer graduate juniors with lesser experience. I need hardly say that all the three tests which were formulated, apply on all fours to the present case and therefor the graduate preference for purposes of promotion from the common feeder category of Assistant Engineers where no distinction existed on the basis of the educational qualifications is discriminatory and violative of Articles 14 and 16 of the Constitution of India.

33. In this view of the matter, the amendment, which was incorporated by G.O.Ms 24/74.PW dated 19-2-1974, by adding a note to rule 2 of the Engineering Service (Electrical) Rules, is ultra vires of Article 16(1) of the Constitution of India, and I declare it to be so. The promotions effected on the application of the ratio in favour of respondents 3 to 6, who were juniors to the petitioner, for the only reason that they were graduates have necessarily to be invalidated; and I do so. I am informed by the petitioner's counsel that the petitioner was promoted during the pendency of the Original Petition. It behaves the Government now to regulate the seniority between the petitioner and respondents 3 to 6 in the category of Assistant Executive Engineers without any regard to graduation as entitling the respondents to steal a march over the petitioner. His seniority in the category of Assistant Executive Engineers will consequently be reassigned by the second respondent as expeditiously as possible. The petitioner shall be assigned his rank above respondents 3 to 6 with reference to the date on which he would have been promoted to that category but for the preference to junior graduates. It is needless to say that he will be entitled to all benefits of arrears of remuneration consequent thereto. The Original Petition is allowed. In the circumstances of the case, I make no order as to costs.

34. Allowed.