ABDUL BASHEER Vs. STATE OF KERALA

JUDGEMENT

(1.) THE Judgment of the court was delivered by the Acting c. J.- All the five writ appeals are against the same Judgment that in O. P. 3760 of 1978. W. A. 243 of 1980 is the main appeal and that is by the State of Kerala and the Deputy commissioner of Excise, who were respondents 1 and 2 in the Original petition. THE other appeals are by persons who were not parties to the Original Petition. THEy have filed the appeals with leave of court as persons aggrieved by the judgment of the learned single Judge. THE two Original Petitions O. P. Nos. 2119 of 1980 and 2117 of 1980 were referred to the Division Bench to be heard along with the writ appeals since the question raised in these petitions are more or less identical with the questions raised in the appeals. THEy have been heard together.

(2.) THE controversy in these cases concerned the application of the ratio of 1:3 between graduates and non graduates for the purpose of promotion from the post of Excise Preventive Officers to that of 2nd grade Excise Inspectors in the Kerala Excise and Prohibition Subordinate service. Special Rules for the Kerala Excise and Prohibition Subordinate service framed under S. 2 of the Kerala Public Service Act, 1968 were published in the Kerala Gazette dated 24th September 1974. R. 2 of the said Rules was amended by G. O. (P) No. 79/78/pd. , dated 23rd June 1978 and it is the constitutionality of that amendment that is under challenge in the two Original Petitions before us as well as the Original Petition the Judgment in which is the subject of appeal in the writ appeals. It was by that amendment that the ratio of 1:3 between graduates and non graduates was introduced into the Special Rules to apply in the matter of promotion from the category of Excise Preventive officers to that of 2nd Grade Excise Inspectors. THE amendment is deemed to have come into force retrospectively from 9th September 1974, the date of the special Rules. THE basis of the challenge is that graduates and non graduates having been integrated into one category of Excise Preventive Officers there was no justification to differentiate as between them by prescribing a ratio for promotion to the Higher category of Excise Inspector. It would be different if non graduate Excise preventive Officers were found ineligible for promotion to the post of 2nd Grade Excise Inspectors. That was not the case. THEy were entitled to such promotion under the Rules. If so, according to the petitioners in the Original Petitions, there was no scope for prescribing a ratio which would affect the normal chances of promotion based upon rule of seniority envisaged in R. 28 of the Kerala State and Subordinate Service Rules.

(3.) THE first of the points attempted to be made out by learned Advocate General appearing for the State in W. A. 243 of 1980 and other learned counsel supporting the same view can easily be answered. It would not have been open to this court to consider the validity of a case that in the interest of administrative efficiency graduates alone could be found to be eligible for appointment as Excise Inspector. Naturally it would be the government which would, in the usual course, be able to be the Judge in such a matter. What should be the qualifications and experience of a person for eligibility to a post is a matter which must primarily be in the realms of determination by the Government and unless it appears to be so patently unreasonable there would be no scope for the court to interfere with the decision of the Government. But when the Government itself recognises and has recognised all through the years non graduates as competent to hold the post of excise Inspectors it would be futile to contend that in the interest of administrative efficiency graduates should be given preference. It must be remembered that Excise Inspectors are Executive Officers who had fieldwork in their own areas. THEse Inspectors would be posted at various places throughout the State and one sees no logic in the case that some of them should be administratively more efficient. It is also nobody's case that graduate Excise inspectors are assigned to special areas requiring more administrative efficiency. Once they are promoted as Excise Inspectors there is no distinction between graduate and non graduate Inspectors just as when working as Excise preventive Officers there was no distinction between them. This distinction ceases. THErefore we are unable to uphold the contention of the State that the ratio 1:3 between graduates and non graduates is supported on the ground of administrative efficiency.