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Judges : A.R.LAKSHMANAN,K.V.SANKARANARAYANAN
Sugunan - Appellant
Versus
State of Kerala - Respondent
Case No : O.P. NO. 11764/06
Decided On : 04/11/1998
Advocates Appeared :
T.P. Kelu Nambiar (Sr. Advocate), P.V. Baby, M.V. Joseph, R. Mayakrishnan, P.K. Suresh Kumar, M.R. Sreelatha, M.R. Rajendran Nair, M.R. Sudhendran, K.P. Dandapani, K. Jaju Babu, K.R.B. Kaimal, P.R. Ramachandra Menon & M.P. Ashok Kumar For Petitioners Government Pleader (Alex Mathew), V.A. Mohammed, Thaliyal R. Gopakumar. & O.V. Radhakrishnan For Respondents
Kerala Agricultural Income Tax and Sales Tax Service - Amendment to General Rules - Whether amendment takes away rights of petitioners for appointment against 20% of successive substantive vacancies - Whether amendment to General Rules in conflict with Special Rules - Ratio decidendi.
Fact of the Case:
Petitioners applied for selection to the post of Sales Tax Officers in the Agricultural Income Tax and Sales Tax Department pursuant to the notification published in the gazette dated 11.8.1987. They got selected and included in the ranked list published by the Commission on 13.5.1995. Since the authorities are not taking any steps to appoint any of the selected candidates against the vacancies that arose in the quota ear-marked for direct recruits and since only a limited number of candidates have been so far appointed, the petitioners approached this Court for a mandamus commanding the respondents to fill up the quota ear marked for direct recruiters to the post of Sales Tax Officers in the Department of Agricultural Income Tax and Sales Tax on the basis of the successive substantive vacancies arising in the cadre and not on the basis of the cadre strength of the permanent cadre; and also to declare that the amendment to R.5 of the Kerala State and Subordinate Service Rules Part II brought out as per Ext. P2 notification dated 5th December. 1992 does not adversely affect the right of the direct recruitees to get appointment against 20% of the successive substantive vacancies in the cadre of Sales Tax Officers in the Department of Agricultural Income Tax and Sales Tax as provided by R.2 of the Special Rules in respect of the said department.
Finding of the Court:
1. The amendment brought to the General Rules will not take away the right accrued to the petitioners/ appellants for appointment against 20% of the successive substantive vacancies arising in the cadre of Sales Tax Officers. 2. The amendment to the General Rules go in conflict with the Special Rules and that will not hamper the rights of persons arising out of the Special Rules.
Issues: 1. Whether the amendment brought to the General Rules takes away the rights of the petitioners for appointment against 20% of the successive substantive vacancies arising in the cadre of Sales Tax Officers? 2. When the Special Rules clearly speak of the method of recruitment, whether any amendment to the General Rules, which go in conflict with the Special Rules, will hamper the rights of persons arising out of the Special Rules.
Ratio Decidendi: 1. The insertion of Note 2 to R.5 of the General Rules cannot affect the method of recruitment prescribed as per the Special Rules. 2. The Special Rules prevail over the General Rules in case of conflict as per R.2 of the General Rules.
Final Decision: All the Original Petitions and Writ Appeals are allowed. The Secretary, Board of Revenue (Taxes) is directed to work out 20% of the successive substantive vacancies for direct recruitment as on 11.8.1997 and arising thereafter as per the Special Rules and report the same to the Public Service Commission on or before 12th May, 1998 so as to enable the Public Service Commission to advise the eligible candidates for appointment.
AR. Lakshmanan, J.
Two common questions arise for determination in these cases, viz. (1) whether the amendment brought to the General Rules (Kerala State and Subordinate Services rules) as per notification G.O. (P) No. 57/92 P&ARD dated 5th December, 1992 issued by the Personnel and Administrative Reforms (rules) Department of the Government of Kerala would take away the rights of the petitioners in the Original Petitions for appointment against 20% of the successive substantive vacancies arising in the cadre of Sales tax Officers? (2) When the Special Rules clearly speak of the method of recruitment, whether any amendment to the General Rules, which go in conflict with the Special Rules, will hamper the rights of persons arising out of the Special Rules.
O.P. No. 13871 of 1997
2. The petitioners in this Original Petition applied for selection to the post of Sales Tax Officers in the Agricultural Income Tax and Sales tax Department pursuant to the notification published in the gazette dated 11.8.1987 the Kerala Public Service Commission (hereinafter to be referred to as the 'Commission'). They got selected and included in the ranked list published by the Commission on 13.5.1995, their rank numbers being 77,89 and 104. The ranked list is produced and marked as Ext. P1. Ext. P1 has come into force with effect from 13.5.1995 and would expire on 12.5.1998. Since the authorities are not taking any steps to appoint any of the selected candidates against the vacancies that arose in the quota ear-marked for direct recruits and since only a limited number of candidates have been so far appointed, the petitioners approached this Court for a mandamus commanding the respondents to fill up the quota ear marked for direct recruiters to the post of Sales Tax Officers in the Department of Agricultural Income Tax and Sales Tax on the basis of the successive substantive vacancies arising in the cadre and not on the basis of the cadre strength of the permanent cadre; and also to declare that the amendment to R.5 of the Kerala State and Subordinate Service Rules Part II brought out as per Ext. P2 notification dated 5th December. 1992 does not adversely affect the right of the direct recruitees to get appointment against 20% of the successive substantive vacancies in the cadre of Sales Tax Officers in the Department of Agricultural Income Tax and Sales Tax as provided by R.2 of the Special Rules in respect of the said department.
3. Kerala Agricultural Income Tax and Sales Tax Service consists of five categories of officers. Category No. 3 consists of the following posts:
"Category 3: agricultural Incometax officers and Intelligence officers. salestax officers, Additional Law Officer, Manager, Agricultural Income Tax and S ales Tax Appellate Tribunals, Superintendents in the Office of the Board of Revenue (Taxes) and Managers in the Offices of the Deputy Commissioners of Agricultural Income Tax and Sales Tax".
R.2 deals with appointment to various categories which shall be made as follows: "Category
1. XXX 1A. xxx
L xxx
Agricultural Income Tax Officers, Intelligence Officers, Sales Tax Officers, Additional Law Officer, Manager, Agricultural Income Tax and Sales Tax Appellate Tribunals, Superintendents in the Office of the Board of Revenue (Taxes) and Managers in the Offices of the Deputy Commissioners of Agricultural Income Tax and Sales TaxMethod of Appointment
xxx xxx xxx
20% of the 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 transfer of Assistant Sales Tax Officer, Sales Tax Inspectors, Agricultural Income Tax Inspectors, Agricultural Income Tax and Sales Tax Inspectors, Intelligence Inspectors, Checkpost Inspectors, and Junior Superintendents of the Kerala Agricultural
Income Tax and Subordinate Service.
Notwithstanding anything contained in R.2(12) of Part I of the Kerala State and Subordinate Services Rules, 1958 persons employed
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