MAJU BALAKRISHNAN v. NONE

W.P.(C). NO.17322/2008-K: RESPONDENTS: ----------------------- 1. STATE OF KERALA, REP. BY ITS CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM. 2. PRINCIPAL SECRETARY TO GOVERNMENT, WATER RESOURCES (A) DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. 3. PRINCIPAL SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT ANNEX, TRIVANDRUM. 4. CHIEF ENGINEER, IRRIGATION AND ADMINISTRATION, TRIVANDRUM. 5. SUJA MATHEW, ASSISTANT EXECUTIVE ENGINEER, OFFICE OF THE DEPUTY DIRECTOR, CME DIVISION, KERALA ENGINEERING RESEARCH INSTITUTE, PEECHI. 6. M. VIJAYAKUMARI, ASSISTANT EXECUTIVE ENGINEER, CHALIYAR PROJECT INVESTIGATION SUB DIVISON-I, NILAMBUR.*ADDL.R7. JOY ASOK, AGED 45, S/O. ASOMAN, ROHINI, PULLICHIRA, KOLLAM DISTRICT. *ADDL.R7. IS IMPLEADED AS PER ORDER DATED 31/03/2009 IN I.A. NO. 2431/2009. R1 TO R4 BY GOVT. PLEADER MR. P. NANDAKUMAR. R5 & R6 BY ADVS. MR.DENIZEN KOMATH, MR.SHERRY J. THOMAS, ADDL.R7. BY ADV. MR. G. SREEKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/03/2009, ALONG WITH W.P.(C). NO. 27427/2008 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.17322/2008-K: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER NO. ADI(2)16951/92 DTD. 28/05/1993 OF THE R.4.APPOINTING THE P.3. AS ASSISTANT ENGINEER (CIVIL).EXT.P.2: COPY OF THE SELECT LIST PUBLISHED IN THE KERALA GAZETTE EXTRAORDINARY-NOTIFICATION NO. 25892/A1/02/WRD DTD. 21/01/2003 OF THE R.2.EXT.P.3: COPY OF THE G.O.(RT).NO.1058/05/WRD DTD. 19/09/2005 OF THE R.2.EXT.P.4: COPY OF THE NOTIFICATION NO.4969/A1/06/WRD-SELECT LIST DTD. 08/08/2006OF THE R.2.EXT.P.5: COPY OF THE G.O.(RT).NO.1049/06/WRD DTD. 11/09/2006 OF THE R.2.EXT.P.6: COPY OF THE G.O.(RT).NO.1574/07/WRD DTD. 18/12/2007 OF THE R.2.EXT.P.7: COPY OF THE G.O.(MS).NO.150/65/PW DTD. 17/05/1965 KERALA ENGINEERINGSERVICE RULES.EXT.P.8: COPY OF THE SENIORITY LIST OF ASSISTANT EXECUTIVE ENGINEER AS ON31/12/2007 PUBLISHED AS PER ORDER NO. A2/29940/2005 DTD. 18/02/2008 OF THE CHIEFENGINEER (I & A).EXT.P.9: COPY OF THE G.O.(MS).NO.269/2003/LSGD DTD. 05/09/2003 OF THE R.3.EXT.P.10: COPY OF THE G.O.(MS).NO.253/2007/LSGD DTD. 13/11/2007 OF THE R.3.EXT.P.11: COPY OF THE NOTIFICATION NO. G.O.(P).NO.271/2007/LSGD DTD. 27/11/2007SPECIAL RULES FOR THE KERALA LOCAL SELF-GOVERNMENT ENGINEERING SERVICE2007.EXT.P.12: COPY OF THE LETTER NO. A2/5833/2007 (1) DTD 21/02/2007 ISSUED FROM THEOFFICE OF THE CHIEF ENGINEER, IRRIGATION DEPARTMENT.EXT.P.13: COPY OF THE G.O.(RT).NO.3426/07/LSGD DTD. 13/12/2007 ALONGWITH THEFORM OF OPTION OF THE R.3.EXT.P.14: COPY OF THE CIRCULAR NO. C2-5340/2006 DTD. 31/12/2007 OF THE R.4.EXT.P.15: COPY OF THE LIST OF THE OPTEES OF ASSISTANT EXECUTIVE ENGINEERDEPLOYED TO LSGD.EXT.P.16: COPY OF THE OPTION SUMMARY EMPLOYEES DEPLOYED FROM IRRIGATIONDEPARTMENT.EXT.P.17: COPY OF THE LETTER NO. C2/5340/2006 DTD. 08/01/2008 ALONGWITH THEPROFORMA OF THE CHIEF ENGINEER TO THE R.3.EXT.P.18: COPY OF THE G.O.(MS).NO.94/08/LSGD DTD. 27/03/2008 ALONGWITHANNEXURES (1) AND (2).EXT.P.19: COPY OF THE LETTER NO. C2/5340/2006 DTD. 16/05/2008 OF THE CHIEFENGINEER TO THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT. W.P.(C). NO.17322/2008-K: EXT.P.20: COPY OF THE LIST OF JUNIORMOST ASSISTANT EXECUTIVE ENGINEER(UNDER DEGREE QUOTA) TO BE DEPLOYMENT TO LSGD.EXT.P.21: COPY OF THE CIRCULAR DTD. 01/07/2006 OF THE CHIEF ENGINEER, PWDADMINISTRATION, THIRUVANANTHAPURAM.EXT.P.22: COPY OF THE NOTIFICATION NO. 33518/A1/06/WRD DTD. 07/05/2007 SELECTLIST OF ASSISTANT ENGINEERS UNDER DEGREE QUOTA FOR THE YEAR 2007 FORPROMOTION TO THE CATEGORY OF ASSISTANT EXECUTIVE ENGINEER OF THE R.2.EXT.P.23: COPY OF THE G.O.(RT).NO.03/2008/WRD DTD. 01/01/2008 OF THE DEPUTYSECRETARY TO GOVERNMENT.EXT.P.24: COPY OF THE G.O.(RT).NO.381/2008/WRD DTD. 04/04/2008 OF THE DEPUTYSECRETARY TO GOVERNMENT.EXT.P.25: COPY OF THE G.O.(RT).NO.250/2008/WRD DTD. 25/02/2008 OF THE DEPUTYSECRETARY TO GOVERNMENT.EXT.P.26: COPY OF THE JUDGMENT DTD. 01/11/2006 IN W.P.(C).NO.27781/2006 OF THEHONOURABLE HIGH COURT OF KERALA.EXT.P.27: COPY OF THE G.O.(RT).NO.576/07/WRD DTD. 26/04/2007 OF THE DEPUTYSECRETARY TO GOVERNMENT.EXT.P.28: COPY OF THE G.O.(RT).NO.868/2007/WRD DTD. 26/06/2007 OF THE DEPUTYSECRETARY TO GOVERNMENT.EXT.P.29: COPY OF THE G.O.(RT).NO.972/07/WRD DTD. 19/07/2007 OF THE DEPUTYSECRETARY TO GOVERNMENT.EXT.P.30: COPY OF THE G.O.(RT).NL.653/2007/WRD DTD. 15/05/2007 OF THE DEPUTYSECRETARY TO GOVERNMENT.EXT.P.31: COPY OF THE LETTER NO. A2-5833/2007 DTD. 24/06/2008 OF THE R.4.RESPONDENTS' EXHIBITS: EXT.R3.A: COPY OF THE EXTRACT OF THE REPORT ON THE COMMITTEE ONDECENTRALISATION OF POWERS.EXT.R3.B: COPY OF THE EXTRACT OF PRINCIPLES ADOPTED BY THE COMMITTEE TODECIDE THE NUMBER OF STAFF TO BE REDEPLOYED.EXT.R5.A: COPY OF THE GOVERNMENT ORDER DTD. 29/01/2003 OF THE LOCAL SELFGOVERNMENT DEPARTMENT.EXT.R5.B: COPY OF THE ORDER OF THE R.4. VIDE ORDER NO. A3/28585/05 DTD.25/09/2006.EXT.R5.C: COPY OF THE G.O.(RT).580/2008/WRD DTD. 09/06/08.//TRUE COPY// P.S. TO JUDGE. Prv. K.BALAKRISHNAN NAIR &M.L.JOSEPH FRANCIS, JJ.-----------------------------------------W.P.(C) NOS. 12175, 14560, 17322, 17903, 20685, 23174, 23556, 24080, 24149, 24320, 24326, 24360, 24659,24724, 24862, 25240, 25814, 25865, 26111, 26161, 26641, 26833, 27236, 27402, 27427, 27468, 27528, 28347, 28409. 28598, 28957, 29133, 29143,30782, 33297, 34218, 34305, 34485,34504, 34687, 35284, 35352, 35429,35642, 35874, 36010, 36095, 36135, 36183, 36361, 36368, 36589, 36770, 36877, 36918, 36990, 37042, 37087, 37210, 37286, 37493, 38006/2008 AND490, 569 & 787/2009-----------------------------------------Dated 31st March, 2009.JUDGMENTBalakrishnan Nair, J.These Writ Petitions are filed by the Engineering staff of the PublicWorks Department (P.W.D.) and Water Resources Department (IrrigationDepartment), challenging their absorption in the newly formed EngineeringWing of the Local Self Government Department (L.S.G.D.). In some cases,the newly promulgated Special Rules for Local Self GovernmentEngineering Service, 2007 are also under challenge. The persons to be WPC 17322/2008 etc..2absorbed in the newly formed service are to be identified with reference tothe cut off date 1.1.2008, which is the date on which the above mentionedSpecial Rules came into force. In some of the Writ Petitions, the fixation ofthat cut off date is also under challenge. In most of the other Writ Petitions,mainly, individual grievances regarding absorption are highlighted. Insome cases, it is pointed out that juniors are being retained and seniors aredeployed. In certain other cases, it is contended that even seniors, who haveopted for deployment, are spared and juniors, who did not opt, are beingcompulsorily sent to the new Department. W.P.(C) No.17322/2008:2. This Writ Petition is treated as the main Writ Petition challengingthe Special Rules, for the purpose of referring to the exhibits. Thepetitioners in this case are Assistant Executive Engineers. They are beingabsorbed in the Kerala Local Self Government Engineering Service,treating them as surplus staff in the Irrigation Department, as per Exts.P9,P13, P17, P19 and P20 orders/communications. They also challengeclauses (iv) and (v) of Rule 2(2) of Ext.P11 Special Rules for the KeralaLocal Self Government Engineering Service, 2007. According to them,those provisions are ultra vires and unconstitutional.3. The official respondents have filed a counter affidavit, stating that WPC 17322/2008 etc..3in view of the 73rd and 74th amendments to the Constitution of India, thefunctioning of the Local Self Government institutions has undergone a seachange. Most of the developmental projects hitherto undertaken by thePublic Works and Irrigation Departments were transferred to the L.S.G.D.Initially, Engineering staff from the Public Works and IrrigationDepartments were being deployed for a period of three years to the L.S.G.Dand they were being repatriated after the said deputation period. Now, it isthought that for extending technical support to the new Department for thevarious projects, schemes and functions transferred to it, an EngineeringWing should be established in the L.S.G.D. It was also decided to reducethe cadre strength of Engineering staff in the parent Departments of PublicWorks and Irrigation and also to create required number of posts in theL.S.G.D. The incumbents occupying the abolished posts were to betransferred to the L.S.G.D., subject to certain norms framed by theGovernment. To give statutory backing to the absorption of the surplusEngineering staff from the two Departments, in the L.S.G.D., the impugnedSpecial Rules were framed. All the actions taken by the Government are inaccordance with law and the orders impugned in this Writ Petition and otherconnected Writ Petitions are legal and valid, it is submitted. So, the Stateprayed for dismissal of the Writ Petitions. WPC 17322/2008 etc..44. The learned senior counsel Mr.O.V. Radhakrishnan raised thefollowing contentions: He submitted that the transfer of technical stafffrom the Water Resources Department has been effected not with referenceto the cadre strength ascertained on the date of the relevant orders, but basedon the cadre strength as on 1.1.2008, which is an artificial date, which hasno relevance for the deployment or transfer. The cadre strength, which isrelevant, is the one prevailing on the actual date of absorption. The Rulesprovide for transfer of those incumbents, who did not opt, based on theirjuniority. But, the juniority should have also been taken with reference tothe date of transfer to the new Department for absorption and not withreference to the cut off date 1.1.2008. The learned senior counsel alsosubmitted that the writ petitioners were occupying posts in the IrrigationDepartment within the sanctioned cadre strength. They were appointedregularly to those posts in accordance with the relevant rules. Now, theirdeployment would amount to sending them out from the posts held by themsubstantively. Such action would offend the provisions of Article 311 ofthe Constitution of India. The learned senior counsel pointed out that thefixation of a cut off date for the purpose of deployment is hit by the decisionof this Court in Ext.P26 judgment. There was a direction in that judgmentto prepare the list of Assistant Engineers to be deployed, taking into WPC 17322/2008 etc..5account the cut off date 15.2.2006, so that juniors on that date can bedeployed. The said direction of this Court is applicable in the case ofdeployment of Assistant Executive Engineers also. Since the cut off date is1.1.2008, by the time the deployment orders were actually issued, severaljuniors joined the cadre. So, retaining those juniors, deployment of theseniors is unjustified. The learned senior counsel also pointed out thateven in the cadre of Assistant Executive Engineers, several promotees tothat cadre posted after 1.1.2008, are being retained, while the petitioners,who are seniors, are being sent out. The same is arbitrary anddiscriminatory. The learned senior counsel submitted that for themaintenance of the ratio between Diploma holders and Degree holders, theoptions submitted by certain persons have not been accepted and those whohave not submitted their options, are being deployed. For the purpose ofdeployment or absorption in the new Department, it is neither necessary norfair to take into account the ratio between the Diploma holders and Degreeholders. The learned senior counsel further pointed out that clauses (iv) and(v) of Rule 2(2) of Ext.P11 Special Rules, which provide for mandatoryabsorption of the petitioners and others, are unconstitutional for beingviolative of Articles 14, 16 and 311 of the Constitution of India. 5. We also had the benefit of hearing the learned counsel appearing WPC 17322/2008 etc..6in the connected writ petitions, in which the aforementioned clauses of Rule2(2) of Ext.P11 Special Rules were challenged. The learned senior counselMr.K.R.B. Kaimal submitted that the Engineering staff in the P.W.D arethose who opted to continue in that Department, while it was bifurcated intoP.W.D and Irrigation Departments in the year 1990. Those who opted forIrrigation Department got accelerated promotion. Now, there is a merger ofthese two wings. When Engineers from both the Departments join the samecadre in the newly formed Engineering Wing of the L.S.G.D., the erstwhilejuniors in the P.W.D., who opted for Irrigation Department and gotaccelerated promotion in that Department, will become seniors in theL.S.G.D., to their erstwhile seniors in the P.W.D. The same is highlyarbitrary and discriminatory. The Special Rules thereby treat the unequalsequally and therefore, the impugned provisions offend the fundamentalrights guaranteed under Articles 14 and 16 of the Constitutions of India, ofthe persons deployed from the P.W.D. The learned senior counsel alsopointed out the alleged irrationality in fixing a cut off date for the purposeof absorption in the new service. The date relevant should be the actual dateof deployment and not the cut off date, it is submitted.6. We also heard learned counsel Mr.C.Unnikrishnan, who appearedin two connected Writ Petitions and Mr.S.Vishnu, who represented similarly WPC 17322/2008 etc..7placed persons. The petitioners in those cases are persons who wereadvised for appointment as Assistant Engineers in the P.W.D before1.1.2008, but were appointed on 4.1.2008. So, they say, they being personsappointed after the cut off date, should not have been absorbed in the newservice. They further say, they applied for appointment in the P.W.D and ifthere is a dearth of vacancies, they may be retrenched, so that they canregister with the P.S.C and can wait for advice when vacancies are reportedsubsequently. They also challenge clause (iv) of Rule 2(2) of Ext.P11Special Rules for Engineering Service in the L.S.G.D. We also heardM/s.M.V.Bose, Dr.K.P.Satheesan, V.A.Muhammed, B.S.Swathy Kumar,Kodoth Sreedharan, M.Sasindran, Elvin Peter, Kaleeswaram Raj,P.Santhosh Kumar, Anil Sivaraman, Bechu Kurian Thomas, K.Siju,V.Jayapradeep, Tojan J. Vathikulam, D.Narendranath, P.V.Elias,M.Ramaswamy Pillai, G.Ajaya Kumar, M.V.Amaresan, M. Poly Mathai,C.K.Pavithran, P.R.Sreejith, M.Harisharma and M.P.Madhavankutty,learned counsel who appeared in the connected writ petitions.7. The learned Government Pleader, on the other hand, submitted thatabolition of posts in a Department and creation of posts in anotherDepartment are falling within the realm of policy decisions of theGovernment and normally, the Court has to keep its hands off from such WPC 17322/2008 etc..8decisions. To implement the mandate of the 73rd and 74th amendments tothe Constitution of India, the Departments of Public Works, Irrigation andLocal Self Government were re-structured and substantial functions of thefirst two Departments were transferred to the L.S.G.D. As a result, theGovernment reduced the staff strength in the Public Works and IrrigationDepartments and correspondingly, it created necessary posts in the L.S.G.D.Everything was done after meticulous study and deliberations and to givestatutory backing to those policy decisions, Special Rules were alsopromulgated. The learned Government Pleader submitted that by virtue ofRule 14 of Part I of the Kerala Service Rules, the services of a Governmentservant are at the disposal of the State always and the State can decidewhere he should serve. Therefore, the petitioners cannot demur when theirservices are absorbed in another Department. The learned GovernmentPleader also submitted that as a result of absorption of the Engineering staffin the L.S.G.D., none of their service conditions is changed. They willcontinue in the same grade with all service benefits, which they wereenjoying hitherto. The Government wanted to have some experiencedhands and that was the reason why the persons who were advised forappointment in the Department as fresh hands after the cut off date werespared. There is nothing wrong in fixing the cut off date. In this case, the WPC 17322/2008 etc..9cut off date has been chosen as the date on which the Special Rules cameinto force, that is, 1.1.2008. A Division Bench of this Court inW.A.No.746/2003 and connected cases upheld the fixation of a cut off datefor the purpose of deployment to the L.S.G.D. The learned GovernmentPleader referred to G.O.(Ms) No.94/08/LSGD dated 27.3.2008 (Ext.P18),fixing the cadre strength in the Engineering Wing of L.S.G.D. He alsoreferred to G.O.(Ms) No.38/08/PWD dated 8.9.2008, as per which 1415posts have been identified as excess in the P.W.D., to be abolished andshifted to L.S.G.D. As per G.O.(Ms) No.282/08/LSGD dated 25.10.2008,700 posts of Overseers, 150 posts of Assistant Engineers and one post ofChief Engineer in the P.W.D have been abolished and shifted to L.S.G.D.The learned Government Pleader also took us through G.O.(Ms)No.54/2008/WRD dated 28.11.2008, as per which 1107 posts ofEngineering staff have been abolished in the Irrigation Department. Thesaid order also says that they will be treated as having been shifted to theL.S.G.D., with effect from the dates the incumbents were relieved from theirparent Departments to join the transferee Department. The learnedGovernment Pleader also referred to G.O.(Ms) No.331/08/LSGD dated18.12.2008 and G.O.(Ms) No.332/08/LSGD dated 18.12.2008, as per whichthe surplus Engineering staff were absorbed in the L.S.G.D. He also WPC 17322/2008 etc..10admitted that in certain cases the options submitted by senior hands werenot acted upon and non-optees were deployed in their place, from the cadreof Assistant Engineers. The reason is that there is a ratio betweenpromotees and direct recruits. The promotees mainly consist of Diplomaholders and the direct recruits consist of Degree holders. Even afterdeployment, to maintain the ratio between direct recruits and promotees,care has been taken to deploy hands proportionately from both the groups.Such deployment helps to maintain the very same ratio in the transfereeDepartment also. If strict seniority alone is reckoned, all the transfereesmay be Degree holders or Diploma holders. So, seniority in the twocategories in the same post has also been given due weight, while selectingthe incumbents for absorption. The learned Government Pleader furthersubmitted that no valid ground to interfere with a subordinate legislation hasbeen raised in the Writ Petitions challenging Ext.P11 Special Rules. So, heprayed for dismissing the Writ Petitions.8. The learned counsel for the petitioners in support of theirsubmissions, relied on the decision of the Apex Court in Kerala StateElectricity Board v. N.Sukesen [(1996)9 SCC 397]. The said decision saysthat when a Department is bifurcated and again merged, the seniority of the WPC 17322/2008 etc..11incumbent before bifurcation should not be affected on merger. The learnedcounsel also relied on the decision of the Apex Court in Moti Ram v. N.E.Frontier Railway [AIR 1964 SC 600], wherein it was held that a personappointed substantively to a post in the permanent cadre, is entitled tocontinue in service till his superannuation, unless he is reverted orterminated from service by taking disciplinary action.9. The learned Government Pleader, in support of his submission thatthis Court may not interfere with the policy decisions of the Stateconcerning abolition of posts, creation of posts etc., relied on the decisionsof the Apex Court in Union of India v. Tejram Parashramji Bombhate[(1991)3 SCC 11], Dr.N.C.Singhal v. Union of India [(1980)3 SCC 29],Association for the Officers of the W.B.Audit and Accounts Service v.W.B. Audit and Accounts Service [1995 Supp (4) SCC 44], S.P.Shivprasad Pipal v. Union of India [(1998)4 SCC 598], State of A.P. v.V.C.Subbarayudu [(1998)2 SCC 516] and State of Haryana v. NavneetVerma [AIR 2008 SC 417]. To support the State's decision to fix a cut offdate, the learned Government Pleader relied on the decisions of the ApexCourt in University Grants Commission v. Sadhana Chaudhary [(1996)10 SCC 536] and Govt. of A.P. v. Subbarayudu [2008(2) KLT 681 (SC)]. WPC 17322/2008 etc..1210. We considered the rival submissions and also went through thepleadings of the parties. The relevant clauses of Rule 2(2) impugned inthese Writ Petitions read as follows:“(iv) With effect from 1st January, 2008, those members in thecategories of Chief Engineer, Superintending Engineer,Executive Engineer and Assistant Executive Engineer in theKerala Engineering Service and those members in the categoryof Assistant Engineer in the Kerala Engineering SubordinateService, who are found to be excess in the respectivecategories in the respective Services, as a result of the transferof functions and responsibilities of the Government to the LocalSelf Government Institutions and on consequent fixation ofstaff strength and determination of number of posts required inthose categories and Services, shall, suo motu be absorbed intothe Kerala Local Self Government Engineering Service andincluded in the respective categories in the Kerala Local SelfGovernment Engineering Service. The absorption under thissub-rule shall be in the order of juniority and subject torequirement.(v) The rank and seniority of a person absorbed into the KeralaLocal Self Government Engineering Service and included in acategory in that Service, under sub-rule (2), (3), (4) or (5) shallbe determined on the basis of his date of appointment andseniority in the respective category in the former service, and if WPC 17322/2008 etc..13he is a direct recruit in that category, on the basis of the date ofadvice of the Public Service Commission for appointment tothat category.”Going by the materials, including the orders produced by the writpetitioners and the Government, it is evident that the Government haveabolished some posts in the Public Works and Irrigation Departments andcorresponding number of posts has been created in the newly formedEngineering Wing of the L.S.G.D. Creation and abolition of posts arematters within the realm of policy of the Government. The policy may bewise or foolish. But, the Court is not concerned with that. Even if aperson is appointed to a post on substantive basis, if that post is abolished,the incumbent will be retrenched. So, the contention of the learned seniorcounsel Mr.O.V.Radhakrishnan that once a person is appointed to a postsubstantively, he can continue in service till superannuation or he can beterminated only by taking disciplinary action, is plainly untenable. Aregular incumbent's tenure in a post is coterminous with the existence ofthat post. If that post held by him is abolished, the incumbent is liable to beretrenched. In this case, instead of retrenching the petitioners and leavingthem to stand in the queue for re-appointment when vacancies arise, theGovernment took a policy decision to accommodate them in the newly WPC 17322/2008 etc..14created posts in the L.S.G.D. It is a favour done to them. The decision inMoti Ram v. N.E.Frontier Railway (supra) has no application to a casewhere the post is abolished. Therefore, we find nothing arbitrary orirrational about the decision of the Government to abolish certain posts inthe Public Works and Irrigation Departments and to absorb the resultantsurplus staff, in the L.S.G.D. 11. The grounds available for impugning a subordinate legislationhave been succinctly stated by this Court in Pankajaksy v.GeorgeMathew [1987(2) KLT 723]. Those grounds are the following:“12. Thus, the rule made under a statute by an authoritydelegated for the purpose can be challenged on the ground (1)that it is ultra vires of the Act; (2) it is opposed to theFundamental rights; (3) it is opposed to other plenary laws. Toascertain whether a rule is ultra vires of the Act, the Court cango into the question (a) whether it contravenes expressly orimpliedly any of the provisions of the statute; (b) whether itachieves the intent and object of the Act; and (c) whether it is'unreasonable' to be manifestly arbitrary, unjust or partialimplying thereby want of authority to make such rules.”Going by the above principles laid down by this Court, we find that noground has been made out, warranting interference with the Rules.12. But, we feel that those among the petitioners, who want to WPC 17322/2008 etc..15remain outside, without joining the L.S.G.D., to take their chance for re-appointment in their parent Departments, shall be given a chance to do that.The incumbents who prefer retrenchment to absorption in the L.S.G.D maysubmit their options to the Government. In that event, they shall beretrenched with right to re-appointment as and when vacancies arise in theirparent Departments, according to their seniority. The representations forretrenchment shall be filed before the Government within two months fromtoday, so that the Government can consider them and retrench the personsfound surplus in their parent Department. 13. The next point to be decided is the validity of the fixation of a cutoff date for the purpose of identifying the persons to be sent to the L.S.G.D.Even after deployment of the optees, if there is excess staff in a cadre,juniors among the non-optees have to be deployed as per the norms fixed bythe Government. For taking action in this regard, a cut off date has to befixed. If, as claimed by the writ petitioners, the date of actual order ofdeployment is taken as the criteria, it is practically impossible to implementthe order. Every time, the membership of a group, from among whomdeployment is to be made, will change, owing to efflux of time. There willbe retirement/promotions etc. In this case, a date has been fixed, which isthe date of coming into force of Ext.P11 Special Rules. The fixation of WPC 17322/2008 etc..16such a cut off date made earlier, for deployment, has been upheld by aDivision Bench of this Court in W.A.No.746/2003 and connected cases, byjudgment dated 2.7.2003. We are in respectful agreement with the reasonsand conclusions of the Division Bench in that case on the above point.14. Now, we will come to the next point urged by the petitioners thatin the same category of Engineers, junior optees have been retained andseniors, though they did not opt, have been sent out. The learnedGovernment Pleader explained the reason for such deployment as theendeavour of the Government to maintain the ratio between promotees anddirect recruits or Diploma holders and Degree holders, in the parentDepartment as also in the transferee Department. The relevant portion ofthe Rule dealing with the absorption of surplus staff reads as follows:“The absorption under this sub-rule shall be in the orderof juniority and subject to requirement.”The above quoted provision would show that absorption need notnecessarily be based on juniority alone. It will depend upon the requirementalso. Further, seniority or juniority is reckoned with reference to thecategory concerned. In the category of Assistant Engineers, there can befurther categories of promotees and direct recruits. If those two groups are WPC 17322/2008 etc..17taken as separate categories, the deployment will be strictly in accordancewith juniority. But, if Assistant Engineers, as a whole, is taken as onecategory, there will be infringement of the seniority/juniority rule. We feelthat the view taken by the Government regarding the implementation of theseniority/juniority rule cannot be described as one unauthorised by theRules. In the light of requirement, deviation from the seniority rule ispermitted. The requirement of a fair distribution of Degree holders andDiploma holders among transferees is a ground, enabling deviation fromjuniority rule. Therefore, the view taken by the Government on this pointcannot be said to be outside the scope of the statutory provision. In otherwords, it is a plausible view. Therefore, we feel that the omission of theGovernment to adhere to strict seniority rule cannot be described as ultravires, warranting our interference.15. In this case, the principles laid down in Kerala State ElectricityBoard v. N.Sukesen (supra) will apply, if the Public Works and IrrigationDepartments are merged into one Department, because those Departmentswere formed by bifurcation of the erstwhile P.W.D into Public Works andIrrigation Departments. Here the employees of the Departments of PublicWorks and Irrigation are joining a new/third Department. But, if there isany genuine grievance of the erstwhile junior becoming senior in the new WPC 17322/2008 etc..18Department, the erstwhile senior in the P.W.D may represent to theGovernment and in that case the Government shall consider the same andpass appropriate orders thereon, if necessary, invoking its power underRule 39 of the Kerala State & Subordinate Services Rules, to remove suchanomalies. Subject to the rights of the petitioners to represent for retrenchment,instead of deployment and to represent against posting under the erstwhilejuniors, the Writ Petition is dismissed.W.P.(C) Nos.12175, 14560, 17903, 24659, 24862, 27427, 28347, 28409,33297, 36361 & 38006/2008:16. The judgment in W.P.(C) No.17322/2008 will govern these WritPetitions also.W.P.(C) NOS. 20685, 23174, 23556, 24080, 24149, 24320, 24326, 24360,24724, 25240, 25814, 25865, 26111, 26161, 26641, 26833, 27236, 27402,27468, 27528, 28598, 28957, 29133, 29143, 30782, 34218, 34305, 34485,34504, 34687, 35284, 35352, 35429,35642, 35874, 36010, 36095, 36135,36183, 36368, 36589, 36770, 36877, 36918, 36990, 37042, 37087, 37210,37286, 37493/2008 and 490, 569 & 787/2009:17. In these Writ Petitions, some individual grievances concerningdeployment are mainly raised. In them, the validity of the Special Rules isnot under challenge. We think that the grievances raised in these Writ WPC 17322/2008 etc..19Petitions should be raised before the Government. The petitioners mayraise their grievances by filing representations. The persons, whoserepresentations were already rejected, can also file fresh representations.Those who have already filed their representations may file reminders withadditional grounds, if any. Those representations shall be filed before theGovernment within two months from today. If there is any inconvenienceregarding the place of posting, the same can also be raised in therepresentations to be filed before the Government. If such representationsare received, the Government shall consider them and pass final ordersthereon within three months from the date of receipt of them. 18. The petitioners pray, they may be retained where they areworking, till their representations are disposed of. The said prayer is plainlyuntenable. The petitioners' services are no longer required in their parentDepartments. So, their retention there and payment of salary to them is asheer waste of public funds. They should join where their services arerequired. But, we did not mean that all of them should be terminated fromthe parent Department tomorrow. The competent appointing authorities willbe free to issue orders relieving them and also, posting them toappropriate places in accordance with the requirements and in exigencies WPC 17322/2008 etc..20of service. The Writ Petitions are disposed of as above.K.BALAKRISHNAN NAIR, JUDGE.M.L.JOSEPH FRANCIS, JUDGE.nm/