C.S. Rajan, J.

The petitioners are Excise Guards in Alappuzha Revenue District. They are SSLC holders. According to them they had passed the prescribed test for promotion to the post of Preventive Officers. Thus they became fully qualified for promotion as Excise Preventive Officers. The promotion to the post of Excise Preventive Officers is governed by the provisions contained in the Special Rules for the Kerala Excise and Prohibition Subordinate Service. Excise Preventive Officers are included in category No. 2 under R.1 of the above Rules. Category No. 3 is Excise Guards. The method of appointment to the category of Excise Preventive Officers is laid down in R.2, which reads as follows:

"Excise Preventive Officers:

1. Direct recruitment.

2. Promotion from category 3. Provided that every fourth vacancy shall be filled or reserved to be filled by direct recruitment. Provided further that the remaining vacancies shall be filled 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."

2. The Government introduced Note (3) to R.5 of K.S.&S.S.R. Part II as per notification dated 5.12.1992 which reads as follows:

"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 percentage to the cadre strength of the post to which the recruitment/ transfer is made and not to the vacancies existing at that time".

Therefore it was argued by Sri. K.R.B. Kaimal, learned counsel for the petitioners that thereafter the ratio for direct recruitment and promotion has to be applied on the total number of posts for the category and not on the number of vacancies. It was further averred in the Original Petition that the total number of posts in the category of Preventive Officers in Alappuzha Excise Division is 61. The sanctioned strength of Excise Preventive Officers as on 31.12.1994 was 57 as per the final seniority list of Preventive Officers. Thus the quota for direct recruitment can only be 15. As against this position, there are 20 direct recruitment in the cadre of Excise Preventive Officers in Alappuzha Excise Division. Thus there is an excess of 5 direct recruits. On that premises it was strongly contended that there was absolutely no scope for any further direct recruitment of Excise Preventive Officers in Alappuzha Division.

3.It was further argued by the learned counsel that the matter is now covered by a ruling of the Supreme Court reported in Prakash v. Kurien (1999(2) KLT 710). In the above case an apparent conflict or inconsistency between a provision contained in the Special Rules for the Kerala Agricultural Income Tax and Sales Tax against Note (3) of R.5 of the K.S.&S.S.R. was considered by the Supreme Court. The provision contained in the above Special Rules was that 20% of the successive substantive vacancies shall be filled or reserved to be filled by direct recruitment and the remaining vacancies shall be filled or reserved to be filled up by transfer of Assistant Sales Tax Officers etc. Considering the impact of R.5 on the above provision in the Special rules, the Supreme Court observed as follows:

"In our view, all the aforesaid submission is without any substance. As discussed above, R.5 of the General Rule is enacted to govern special rules with regard to the method of recruitment in cases when appointments are by direct recruitment and by transfer in any substantive vacancies in permanent cadre. The language in R.5 is clear and unqualified. The intention of the Legislature of adding Note 3 is also clear and is added to fill in existing lacuna in the method of recruitment provided in special rules. As stated above, for appointment to category 3, ie., to the post of Agricultural Income Tax Officers and Ors. method of appointments only provides that 20% of suc