SEETHILAL Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioners are Excise Guards in Alappuzha Revenue district. THEy are S. S. L. C. holders. According to them they had passed the prescribed test for promotion to the post of Preventive Officers. Thus they became fully qualified for promotion as Excise Preventive Officers. THE promotion to the post of Excise Preventive Officers is governed by the provisions contained in the Special Rules for the Kerala Excise and Prohibition subordinate Service. Excise Preventive Officers are included in category No. 2 under R. 1 of the above Rules. Category No. 3 is Excise Guards. THE method of appointment to the category of Excise Preventive Officers is laid down in R. 2, which reads as follows: "excise Preventive Officers: 1. Direct recruitment. 2 Promotion from category 3. Provided that every fourth vacancy shall be filled or reserved to be filled by direct recruitment. Provided further that the remaining vacancies shall be filled by promotion from among Excise Guards possessing the minimum qualification of S. S. L. C. standard and those who do not possess this qualification in the ratio of 1:1".

(2.) THE Government introduced Note (3) to R. 5 of K. S. and s. S. R. Part II as per notification dated 5th December 1992 which reads as follows: "whenever a ratio or percentage is fixed for different methods of recruitment/ appointment to a post of the number of vacancies to be filled up by the candidates from each method shall be decided by applying the fixed ratio or percentage to the cadre strength of the post to which the recruitment/ transfer is made and not to the vacancies existing at that time. " THErefore it was argued by Sri, K. R. K. Kaimal, learned counsel for the petitioners that thereafter the ratio for direct recruitment and promotion has to be applied on the total number of posts for the category and not on the number of vacancies. It was further averred in the Original petition that the total number of posts in the category of Preventive Officers in Alappuzha Excise Division is 61. THE sanctioned strength of Excise preventive Officers as on 31st December 1994 was 57 as per the final seniority list of Preventive Officers. Thus the quota for direct recruitment can only be 15. As against this position, there are 20 direct recruitment in the cadre of excise Preventive Officers in Alappuzha Excise Division. Thus there is an excess of 5 direct recruits. On that premises it was strongly contended that there was absolutely no scope for any further direct recruitment of Excise preventive Officers in Alappuzha division.

(3.) THE above argument was also dealt with by the Supreme court in paragraph 16 of the above ruling as follows: "16. THE learned counsel for the respondent vehemently contended that as per R. 2 of the General Rules quoted above, if there is any repugnancy between the General Rule and the Special Rules applicable to any particular service, then, Special Rules are to prevail in respect of said service over the provisions in the General Rules. It is submitted that R. 5 and Note (3) of that Rule are part of the General Rule and, therefore, the Special Rule in the Kerala Agricultural income Tax and Sales Tax Services prescribing method of appointment would prevail. It is contended that the said rule specifically provides that 20 per cent of the successive vacancies' shall be filed up by direct recruit and remaining shall be filled by transfer. It is therefore, submitted that whenever substantive vacancies are to be filled in, 20 per cent of the said vacancies are required to be filled in by direct recruit and remaining vacancies are required to be filled in by transfer. He referred to the maxim'generalia specialiabus non derogant' meaning thereby general things do not derogate from special things and 'generaliabus specialias derogant' which means special things derogate from general things. " Thus it is now clear that R. 5 was enacted to govern all the cases of the recruitment to a service where there is provision for direct recruitment and by transfer. THE intention of the Government was to apply the ratio between the two methods of appointment to the cadre strength and not on arising vacancies. THE Division Bench ruling of this Court reported in Velappan v. State of Kerala ILR 1997 (2) Ker. 441considered the impact of Note (3) to R. 5 on the same Special Rules. Considering the above aspect this Court held as follows: "considering the fact that the amendment is made on 5th December 1992, and as the amendment does not mention when it comes into force, it is presumed that it comes into force only from the date on which it is published in the Gazette, namely, 2nd February 1993. It cannot have retrospective operation. As indicated supra, General Rule 5 would be applicable to cases of recruitment by transfer and direct recruitment. It has no application to a Special Rule which also contemplates appointment by promotion to the post of Excise Inspector. As pointed out by learned Advocate General, r. 5 is in conflict with the Special Rule and even the amended R- 5 does not in any way affect the process of determining the number of vacancies. Special rules speak of vacancies only. "