PRASAD KURIEN Vs. K J AUGUSTIN

JUDGEMENT

(1.) In all these appeals, identical questions of law are involved, therefore, they are disposed of by this common order. For the convenient disposal of these appeals, the facts given in C.A.No.5663 of 2002 (A.K.Narayanan Kutty & Ors. V. State of Kerala & Ors.) are taken into consideration.

(2.) The common facts in this batch of petitions is that the Pu* blic Service Commission started the process of recruitment of 40 direct recruits to the cadre of Excise Inspectors in the year 1988 and the applications were called for in 1989 and the select list was published on 12.6.1992. Note 3 was added to Rule 5 of the Kerala State and Subordinate Services Rules, 1958 (hereinafter to be referred to as the 'Rules of 1958') on 5.12.1992. Writ petitions were filed claiming that direct recruitment can be made only for 10 posts and not for 40 posts and recruiting 40 persons directly would adversely affect the claim of promotion of the appellants and similarly situated. The writ petitioners claimed that they were entitled to a writ of mandamus directing the respondents to make appointments only in accordance with the ratio fixed under the Special Rules for direct recruitment and promotees and further prayed that the State of Kerala be directed to report all the vacancies of Excise Inspectors including those occupied by the promotees to the Kerala Public Service Commission ( hereinafter to be referred to as the' Commission') for filling up the vacancies in accordance with the Rules. The service conditions of the Excise Inspectors are governed by the Special Rules for the Kerala Excise and Prohibition Subordinate Service Rules, 1974 (hereinafter to be referred to as the 'Rules of 1974'). These Rules have been framed in exercise of power conferred by sub-section (1) of Section 2 of the Kerala Public Services Act, 1968 (hereinafter to be referred to as the 'Act of 1968') read with Section 3 thereof and in supersession of all the existing rules and orders on the subject. Therefore, these Rules of 1974 came to be framed under the purported exercise of the Act of 1968. The constitution of the service so far as the following categories of Officers namely; (1) Excise Inspectors, (1A) Assistant Excise Inspectors, (2) Excise Preventive Officers, (3) Excise Guards and (4) Drivers is governed by these Rules. The method of appointment as Excise Inspector is by direct recruitment or by promotion from category (1A) and recruitment by transfer from among Upper Division Clerks employed in the Excise Department and it further provided that every fourth vacancy in the category shall be filled or reserved to be filled by direct recruitment. It is this provision which is relevant for our purpose. The promotion of Excise Preventive Officers is from the post of Excise Guards and there also the ratio is 1: 3 between the graduates and non-graduates. Here also the promotion is by way of direct recruitment or by promotion from category (3) and a further provisio is added that every fourth vacancy in the category shall be filled or reserved to be filled by direct recruitment. The whole litigation started by one Excise Preventive Officer for promotion to the post of Excise Inspector challenging the direct recruitment. In that writ petition his contention was that direct recruitment should be confined to 25 per cent of the cadre strength only in view of Note 3 to Rule 5 of the Rules of 1958 and the direct recruitment beyond that percentage would adversely affect the claim of the promotees. Learned Single Judge allowed the original petition and gave a declaration that the direct recruitment to the cadre of Excise Preventive Officer must be confined to the ratio as applicable to the cadre strength and not to the existing vacancies. Learned Single Judge followed the dictum laid down by this Court in S.Prakash & Anr. V. K.M.Kurian & Ors. [(1999) 5 SCC 624]. It was contended before the Division Bench that the Excise Rules are different from the Kerala Agricultural Income Tax and Sales Rules which was the subject matter before this Court and therefore, this case was sought to be distinguished and it was contended that no percentage was fixed i.e. as in the present case fourth substantive vacancy should be filled or reserved to be filled by direct recruitment. The Division Bench held that every fourth substantive vacancy shall be filled or reserved to be filled by direct recruitment itself meaning thereby 25 percent of the posts are to be reserved to be filled up by direct recruits and no different meaning could be attributed to the Special Rules and therefore, the dictum laid down in S. Prakash & Anr. (supra) was followed and all the three contentions were dismissed by the Division Bench of the High Court. Aggrieved against this number of petitions were filed from time to time before this Court. However, we are concerned with the legal submission made by Mr.P.S.Patwalia, learned senior counsel and others that the Excise Rules are special Rules and they will prevail and not the general Rules, known as Kerala State and Subordinate Services Rules, 1958 and the Note 3 appended to Rule 5 of these general Rules.

(3.) Mr.Patwalia, learned senior counsel for the appellants took us through the Special Rules for the Kerala Excise and Prohibition Subordinate Service Rules, 1974 and also the Kerala State and Subordinate Services Rules, 1958 and submitted that the Excise Rules of 1974 were framed under the Act of 1968, when the Act had been framed by the State Legislature then the Rules framed under proviso to Article 309 of the Constitution cannot hold the field and the Rules which have been framed under the Act passed by the State Legislature shall prevail. It was contended that the Rules of 1958 were framed under proviso to Article 309 of the Constitution and therefore, they will not govern the service conditions of the appellants and the Rules of 1974 which have been framed in exercise of power under the Act of 1968 will hold the field. As per the Rules of 1974 every fourth vacancy is to be filed by direct recruitment. Therefore, it was contended that every fourth vacancy in the cadre of Excise Inspectors or Excise Preventive Officers has to be filled up by the direct recruitment. Learned senior counsel for the appellants submitted that every fourth vacancy should be construed as appearing in the Rules of 1974, meaning thereby as and when the recruitment to the post of Excise Inspectors and Excise Preventive Officers is held, the fourth vacancy should go to the direct quota and the remaining vacancies should be filed up by promotion. Mr.Patwalia tried to distinguish the decision in S.Prakash & Anr. (supra) that the recruitment made under the Rules to the post of Sales Tax Officer in the case of S.Prakash *& Anr. (supra) was governed by different Service Rules and that judgment cannot hold good so far as these Special Rules are concerned.