Balakrishnan Nair, J : -

1. The question raised in these Appeals for decision is whether the principles contained in Note (3) to rule 5 of the Kerala State & Subordinate Services Rules, that when a ratio is prescribed for appointment to a post from different sources, it has to be worked out with reference to cadre strength, will apply to promotions.

2. The brief facts of the case are the following :

The writ petitioner who is the respondent in Writ Appeal No. 353/2000 is working as an Assistant Engineer in the Kerala Water Authority since August, 1988. He is a Diploma holder in Civil Engineering and is therefore eligible for promotion as Assistant Executive Engineer. For promotion, a ratio of 3 : 1 is prescribed between Degree holders and Diploma holders in the cadre of Assistant Engineer. According to him, the ratio has to be applied in relation to cadre strength while ordering promotions. His representations for applying the ratio to the cadre strength, instead of vacancies, were rejected. Therefore, he approached this Court by filing O.P.No.21603/99 which was allowed by the learned single Judge directing to apply the ratio with reference to the cadre strength instead of vacancies. The respondents in the Original Petition filed W.A.No. 353/2000. Four Graduate Engineers who are not parties to the original petition have filed Writ Appeal No.552/2000, impugning the very same judgment.

3. The appellants would contend that Note (3) to rule 5 will apply to recruitment/transfer and not to promotion. According to them, the appointment of an Assistant Engineer from Public Health Engineering Subordinate Service to the post of Assistant Executive Engineer in the Public Health Engineering Service is a promotion. Therefore, Note (3) to rule 5 of Kerala State & Subordinate Services Rules has no application. The writ petitioner who is the contesting respondent in the appeal, on the other hand, submits that the above Note applies with equal vigour to promotions as well.

4. A reference to the relevant Rule will be fruitful before dealing with the rival contentions. Rule 5 reads as follows :

"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 recruited by transfer shall be applicable only to substantive vacancies in the permanent cadre :

(b) a person shall be recruited direct only against a substantive vacancy to such permanent cadre, and only if the vacancy is one which should be filled by a direct recruit under the Special rules referred to in clause (a); and

(c) recruitment to all other vacancies shall be made by transfer

Note : (1) All permanent vacancies and temporary vacancies except those of short duration shall be treated as substantive vacancies.

(2) Leave vacancies and vacancies of less than 6 months duration shall be treated as vacancies of short duration.

(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 the fixed ratio or per centage to the cadre strength of the post to which the recruitment/transfer is made and not to the vacancies existing at the time."*

5. Note (3) was introduced with effect from 2.2.1993. The opening sentence of rule 5 speaks of application of ratio in the case of "direct recruitment" and "transfer" whereas Note (3) speaks of recruitment/appointment. The principle contained in Note (3) concerning the application of ratio applies not only to different methods of recruitment, but also to appointments otherwise than by recruitment. The said distinction assumes importance in the light of the definition of promotion contained in rule 2(11) of Part 1 KS & SSR where