GIBSON Vs. STATE OF KERALA

JUDGEMENT

(1.) The prayers in the Original Petition are: (i) To declare that no junior non SSLC Excise Guard is liable to be preferred to a senior SSLC Excise Guard applying the 1:1 ratio provided in the Special Rules for promotion to the post of Preventive Officer; (ii) To issue a writ of mandamus directing respondents 1 to 3 to effect promotions to the posts of Preventive Officers without giving junior non SSLC Excise Guards any preference over senior SSLC Excise Guards applying the ratio of 1:1 provided in the special rules. The promotion to the cadre of Excise Preventive Officer is governed by special Rules for the Kerala Excise and Prohibition Subordinate Service. The method of appointment to the post of Excise Preventive Officers are: (1) by direct recruitment; (2) promotion from the category of Excise Guards. Every 4th substantive vacancy shall be filled or reserved to be filled by direct recruitment. The remaining vacancies shall be filled up by promotion from among Excise Guards possessing the minimum qualification of SSLC standard and those who do not possess this qualification in the ratio of 1:1. R.5 of the Special Rules prescribes the qualification. The qualifications for promotion as Excise Preventive Officer are as follows:

(2.) The constitutional validity of the ratio prescribed for promotion to the post of Excise Preventive Officers as well as for the post of Excise Inspectors was under challenge before this Court as well as before the Supreme Court. With regard to the ratio of 1:3 between Graduates and non Graduates for promotion from the post of Excise Preventive Officers to the Second Grade Inspectors the Supreme Court held in the ruling reported in Basheer v. Karunakaran ( 1989 (2) KLT 3 ) that the above ratio is discriminatory. This was on the ground of historical circumstances prevailing in the State for a long time. The question of ratio of 1:1 between SSLC and non SSLC Excise Guards for promotion to the post of Excise Preventive Officers came up before the Supreme Court and the Supreme Court upheld the above ratio in the ruling reported in Chandran v. Board of Revenue ( 1995 (1) KLT 12 ). Therefore, the respondents have necessarily to follow the above ratio in the matter of promotion to the cadre of Excise Preventive Officers.

(3.) Sri. Aravindakshan Pillai, learned counsel for the petitioner strongly urged that while implementing the above ratio, the senior SSLC hand should not be bypassed by a junior Non-SSLC hand in the matter of promotion to the cadre of Excise Preventive Officer. Learned counsel read the ruling of the Supreme Court in Chandran's case (1995 (1) KLT 12) and urged that while implementing the above ratio the claims of the senior SSLC hands should not be ignored and if a senior SSLC hand is not promoted, it will be violative of the above judgment. He stressed the point that a person with higher qualification and seniority cannot be overlooked in the matter of promotion while a junior person with lesser qualification is promoted. The above argument forgets the fact that there cannot be any higher or lesser qualification as far as the SSLC and non SSLC hands are concerned. When the ratio has been prescribed between two groups of persons both must be considered to be qualified. Otherwise, there is no rationale behind the prescription of a ratio which was upheld by the Supreme Court. The very prescription of ratio envisages the bypassing of the seniority rule which is the normal rule for effecting promotion. In fact, in all the cases where ratio has been prescribed for promotion, the seniority has to be given a go bye. Therefore, when the statutory ratio prescribed in the Special Rules has been upheld, that must be implemented with full force. In such a contingency, if a senior hand's claim is ignored, there can not be any complaint.