Judgment :-

R.V. Raveendran, J.

The appellant is a Pharmacist (Homeopathy) in the Homeopathy Department of State of Kerala. The Kerala State Homeopathy Services are governed by the 'Special Rules for the Kerala State Homeopathy Services, 1989 ('Special Rules', for short). All subordinate services in the State of Kerala including the State Homeopathy Services are also governed by the Kerala State and Sub-ordinate Services Rules, 1958 ('General Rules' for short).

2. Rule 3 of the Special Rules provides that the method of appointment to different categories of posts shall be in the manner specified in the Table given under the said rule. Entry No. 5 in the said Table relating to Medical Officers (inserted by G.O. dated 27.5.1999, with effect from 12.4.1999) is extracted below:

Category of Post Method of appointment Medical Officer 1. By direct recruitment

2. By transfer from the category of Nurse (Homeopathy)

3. By transfer from the category of Pharmacist (Homeopathy)

4. By transfer from the category of Clerks (Homeo Department) Note: 1. A ratio of 5:1:1:1 shall be maintained in making appointments between direct recruitment, transfer from Nurses (Homeopathy), Pharmacist (Homeopathy) and Clerks in Homeopathy Department.

2. The appointment by transfer of Nurse (Homeopathy), Pharmacist (Homeopathy), Clerk (Homeopathy) will be done by a selection through the Kerala Public Service Commission from among the three categories. In the absence of candidates by transfer those vacancies in each category will be filled up by direct recruitment from open quota and the backlog for such categories will not be restored." [emphasis supplied]

3. Rule 5 of the General Rules is a general rule relating to the manner of recruitment. The following was added as Note (3) to the said Rule 5 of the General Rules by the Kerala State Subordinate Services (Amendment) Rules, 1992 :

"Note (3) : Whenever a ratio or percentage is fixed for different methods of recruitment/appointment to a post the number of vacancies to be filled up by candidates from each method shall be decided by applying 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."

4. The Homeopathy department reported 55 vacancies in the post of Medical Officers (Homeopathy) to the Kerala Public Service Commission, for purposes of recruitment. The Commission, by notification dated 1.2.2000, invited applications for filling up the said 55 posts of Medical Officer (Homeopathy) by dividing them (in the ratio of 5:1:1:1) as follows:

(i) Direct recruitment 32

(ii) Transfer from Nurses (Homeopathy) 7

(iii) Transfer from Pharmacist (Homeopathy) 7

(iv) Transfer from Clerks 7 5. The appellant and two others filed a writ petition before the High Court seeking a direction to the state government to report to the Public Service Commission 32 vacancies of Medical Officers (Homeopathy) to be filled by appointment by transfer of Pharmacists (Homeopathy). They contended that the cadre strength of Medical Officers (Homeopathy) was 442; that having regard to the ratio of 5:1:1:1 for making appointments (provided in the Special Rules, vide Note (1) to Entry 5 of the Table), out of the said 442 posts, 277 posts could be filled by direct recruitment and the balance of 165 posts had to be filled by transferees from the posts of Nurses, Pharmacists and Clerks in the Homeopathy department at the rate of 55 each; that due to non-availability of qualified persons in the categories from which appointments were to be made by transfer, only 23 from the category of Pharmacists, one each from the categories of Nurses and Clerks were holding the post of Medical Officers, and all other Medical Officers (Homeopathy) were direct recruits; that as the direct recruits were occupying posts in excess of their quota, when making further recruitments, the vacancies to be filled have to be determined by applying the fixed ratio to the cadre stren