TMI Blog2008 (2) TMI 967X X X X Extracts X X X X X X X X Extracts X X X X ..... ns 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 the 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. 2. 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 ). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that 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 MANU/SC/0348/1999 : (1999) 5 SCC 624 : 1999 SCC (L S) 997 was followed and all the three contentions were dismissed by the Division Bench of the High Court. 6. Aggrieved against this a 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 the Special Rules and they will prevail and not the General Rules, known as the Kerala State and Subordinate Services Rules, 1958 and Note 3 appended to Rule 5 of these General Rules. 7. Mr. Patwalia, learned Senior Counsel for the Appellants took us through the Spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c services and posts in connection with the affairs of the Union or of any State: Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act. 11. Under purported exercise of power under Article 309 of the Constitution, the State Government framed an Act known as the Kerala Public Services Act, 1968. The preamble of the Act reads as under: Preamble.-Whereas it is considered necessary that the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the State of Kerala should be regulated by an Act of the Kerala State Legislature: Be it enacted in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e services and posts under the State of Kerala. They were of general application. Rule 2 which is of the General Rules laid down that these Rules will govern all holders of posts whether temporary or permanent under the State. It further lays down that the Special Rules shall govern the special service and these Rules i.e. the General Rules will only govern to the extent that they are not inconsistent with the Special Rules. Rule 2 reads as under: 2. Relation to the Special Rules.- If any provision in the General Rules contained in the Part is repugnant to a provision in the Special Rules applicable to any particular service contained in Part III, the latter shall, in respect of that service, prevail over the provision in the General Rules in this Part. 14. Rule 5 which deals with the method of recruitment reads as under: 5. Method of recruitment - Where the normal method of recruitment to any service, class or category is neither solely by direct recruitment nor solely by transfer but is both by direct recruitment and by transfer- (a) the proportion or order in which the Special Rules concerned may require vacancies to be filled by person recruited direct and by those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er that has to be laid down by the Special Rules and at the time of recruitment one has to see the proportion which is to be maintained between direct recruits and promotion or transfer on the basis of the total cadre strength and not to the vacancies existing at that point of time. To illustrate this point what it conveys is that one has to see the cadre strength of the service and the proportion laid down in Special Rules and that proportion has to be maintained by taking the entire cadre strength into consideration and not the vacancies. Therefore, determination of the posts against direct recruits and promotion/transfer has to be made looking to the cadre strength of the service and not looking to the vacancies which are sought to be advertised. The Department has to work out the total cadre strength and then work out if the ratio is 25 percent by direct recruitment and 75 per cent by promotion. Then they will take into consideration whole cadre as to how many persons are already working against direct recruitment quota and how many persons are working against promotion quota and thereafter they will take a decision how much of vacancies will be advertised for direct recruits a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment. 20. Mr. Patwalia, learned Senior Counsel for the Appellants along with other Senior Counsel submitted that every fourth vacancy has to be filled up by direct recruitment dehors the cadre strength. Mr. Patwalia submitted that Note (3) to Rule 5 of the General Rules which is of general application cannot be made applicable to these Special Rules. Learned Senior Counsel submitted that these Special Rules override the General Rules and invoked the principle of generalibus specialia derogant (i.e. special things derogate from general things). Learned Senior Counsel further submitted that since the Act of 1968 was promulgated by the State and these Special Rules had been framed in exercise of the power under Sub-section (1) of Section 2 of the Act of 1968 read with Section 3 superseding all existing Rules, therefore, this proviso which is specially meant for recruitment of these services will govern and not the General Rules which were framed in exercise of proviso to Article 309 of the Constitution. In this connection, learned Senior Counsel on the principle of special rules override the general rules invited our attention to the following decisions of this Court: (i) S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the number of vacancies 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. 23. By virtue of this amendment which has been brought out under the Rules of 1958 it clearly transpires that this Note (3) was not framed under the exercise of power under proviso to Article 309 of the Constitution. In fact, learned Senior Counsel gave us an impression during the course of argument that this Note (3) has been framed in exercise of power under proviso to Article 309 of the Constitution but that impression is now removed after perusing the notification which has been issued under the Act of 1968. Had that not been the position, then perhaps the argument of learned Senior Counsel for the Appellants would have survived but after going through the notification it becomes absolutely clear that Note (3) which was inserted in the Rules of 1958 in 1992 was subsequent to the Rules of 1974 and this notification is of 1992 i.e. subsequent in point of time and this having been issued under the Act of 1968, therefore, the Rules of 1958 which have already been deemed to have been made und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filled up by direct recruit that means that the ratio is 25% by direct recruitment and 75% by promotion. We cannot ignore the intention of the Rules that the proportion of 1:4 is to be maintained i.e. the fourth vacancy has to be filled up by direct recruit then that ratio could only be maintained if the entire cadre strength of the service is taken into consideration. If every fourth vacancy is to be allowed then this proportion is likely to he disturbed and that was not the intention of the framers of the Rules. Therefore, the contention of Mr. Patwalia, learned Senior Counsel for the Appellants cannot be accepted. 26. This Court in S. Prakash referring to various Acts on the subject with relation to this service has observed as follows: (SCC pp. 633-34, para 14). 14. From the aforesaid discussion, it is clear that if the intention of the rule-making authority was to establish a rule of universal application to all the services in the State of Kerala for which the Special Rules are made, then the Special Rules will give way to the General Rules enacted for that purpose. This has to be found out from the language used in the rules which may be express or by implication. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se related to the recruitment to the post of Sales Tax Officer in the Income Tax and Sales Tax Departments and there a provision was that proportion of 20% of successive substantive vacancies shall be filled or reserved to be filled by direct recruitment and the remaining shall be filled or reserved to be filled by direct recruitment and the remaining shall be filled or reserved to be filled by transfer of Assistant Sales Tax Officers. The attempt on the part of learned Senior Counsel for the Appellants to distinguish this case is futile. The percentage may vary. Here it is 25%, there it may be 20% of the successive vacancies. But the principle which has been laid down by this Court in S. Prakash clearly governs this case also as we have already dealt with in detail that the principle, generalibus specialia derogant will not be applicable in the present case but what is applicable is generalia specialibus non derogant which means general things do not derogate from special things. In this case, the General Rules which have come at the later point of time and which govern all service things do not derogate from special things. In this case, the General Rules which have come at the l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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