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Having regard to the fact that Rule 5 of the Kerala Engineering Service (General Branch) Rules, as amended on 8.6.1982 was declared ultra vires in T.R. Krishnan (supra), the learned Judge although noticed that the said amendment had not come into force and as such the validity thereof need not be gone into, held :

"If the stand taken by respondents 1 and 2 is accepted, a Diploma holder Assistant Engineer, who has put in long years of service in that cadre will loose the benefit of that experience on his acquiring Degree qualification. He will have to come to Group A as the junior most and then put in service for three years. The experience gained by them cannot be wiped off on the ground that they acquired the degree in Civil Engineering. This is illegal and arbitrary. An Assistant Engineer, who is a Diploma holder, on acquiring Degree qualification, cannot be compelled to disgorge the benefit of the experience gained by him as Assistant Engineer. He must have credit of the experience. Depending on the rank in the seniority list and the Degree qualification, which he acquired subsequently, as on the date of occurrence of the vacancy must be considered for appointment by transfer to the cadre of Assistant Executive Engineer. Petitioner who took the Degree in 1986 and had put in 6 = years of experience on that date, must be considered as a Graduate Assistant Engineer for being appointed to the post of Assistant Executive Engineer by transfer in the vacancy which arose subsequent to November, 1986. The contrary stand taken by respondents 1 and 2 is illegal."

Noticing the fact that the amendment in Rule 5 was made on or about 8.6.1982, the Division Bench observed :

"21. If we examine Rule 5 we find that this rule deals with diploma holders who after appointment as Assistant Executive Engineers acquired the degree qualification or AMIE qualification. This rule will not be applicable to the case of the present petitioner who acquired his degree qualification as well as AMIE qualification prior to his appointment as Asst. Exe. Engineer. He acquired his degree qualification in November, 1975 and his AMIE qualification in summer 1975. He was elected as Member of the Institute of Engineers on 11.5.1976, while he was appointed as Asst. Exe. Engineer with retrospective effect from 17.6.1978. This means that the petitioner acquired the degree qualification prior to his appointment by transfer as Asst. Exe. Engineer. He is outside the ambit of the category of persons contemplated under sub-rule (a) of Rule 5.
"27. Point Nos. 3 and 5: The Kerala Engineering Service (General Branch) Rules, as intimated while discussing point nos. 1 and 4, do not provide for giving any weightage to diploma holders for their service rendered as diploma holder Engineers, if they acquire a degree qualification subsequently Rule 5 as it now stands works hardship for diploma holder engineers who subsequently acquired degree qualification. The amendment made in 1977 by G.O. (P) No.185/77/PW dated November 1977 published in SRO No.1163/77 in the Kerala Gazette dated 13.12.1977 does not confer any benefit by enabling such diploma holders for being considered for promotion in the quota of degree holder Asst. Exe.

INTERPRETATION OF THE RULES :

A bare perusal of Rules 4 and 5 of the Kerala Engineering Service (General Branch) Rules would clearly go to show that the avenues for promotion for the degree- holders and the diploma-holders were separate. By reason of the amendment incorporated in the rule promotions were sought to be given to those who although were diploma- holders passed the Degree in Engineering examination or Part A and Part B of AMIE by way of accelerated promotions. Only upon acquiring such a degree, the diploma-holder became eligible to exercise his option to be considered for promotion in the stream of the officers belonging to the degree-holders. As such diploma-holder officers who acquired a higher qualification during service had either to opt for promotion for the degree- holders quota or for diploma-holders' quota. Once he opts for a promotion in the degree-holders' quota, rule of seniority would apply as he acquired the qualification therefor subsequently.