O.P.No.34203/2002 & W.P.(C) Nos. 5929/08, 5935/08, 5950/08, 5998/08, 6045/08, 23362/08 & 30902/08

In all these writ petitions, the challenge is against the order passed by the Government dated 12.2008 adopting the principle for fixing seniority between directly recruited Preventive Officers as well as the promotee category in the Excise Department. Once again, the perennial dispute between direct recruits and promotees has arisen for adjudication. The documents and other details are referred to herein as contained in Writ Petition No.6045/2008.

2. Shortly stated, the bare facts necessary for the disposal of the cases are the following: The Special Rules, viz. Kerala Excise and Prohibition Subordinate Service Rules was issued as per G.O. (P) No.112/74/TD dated 9.1974. The method of appointment prescribed for the category of Excise Preventive Officers is: (i) direct recruitment; and (ii) promotion from category (3) viz. Excise Guards. It is provided that every 4th substantive vacancy shall be filled or reserved to be filled by direct recruitment.

3. The Public Service Commission issued a notification on 112.1989 for direct recruitment to the post of Excise Preventive Officers.. All the petitioners were candidates appointed after the conduct of a written test, physical efficiency test and interview. The written test was held in the year 1993 and the physical test and interview were held in 1997. The rank list was published by the Public Service Commission on 312.1997 and candidates were advised for appointment in the year 1998. Exts.P1 and P2 are the advice memos issued by the Commission in respect of the petitioners. Similarly, the petitioners in other cases have also been advised. Pursuant to the said proceedings, they have been appointed in service and are continuing as such. 252 candidates were advised up to 28.1.1998 and appointed as Excise Preventive Officers. Some more candidates were advised in the year 1999 and altogether 293 candidates were appointed.

4. The whole issues turned upon the introduction of Note 3 to Rule 5 of Part II of Kerala State and Subordinate Service Rules, 1958 as G.O.(P) No.57/92/P & ARD dated 12.1992. The amendment came into force with effect from 2.1993. It reads as follows:

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

5. TheApex Court in Prakash v. Kurien (1999 (2) KLT 710) held that Note 3 under Rule 5 applies to all Special Rules whenever a ratio or percentage is prescribed. Some Excise Guards in Alappuzha District filed O.P.No.27869/1999 claiming promotion as Preventive Officers on the basis of the ratio prescribed in the Special Rules. This court declared that direct recruitment to the cadre of Excise Preventive Officers must be confined to the ratio prescribed as applicable to the cadre strength and not to the existing vacancies. The said judgment is reported in 2000 (2) KLT 475 (Seethilal v. State of Kerala.) This was confirmed in Writ Appeal No.1085/2000. The present disputes arose subsequent to these judgments.

6. In purported implementation of the above judgment, the Government directed the Excise Commissioner, as per Ext.P3 to implement the amended provisions of General Rules with effect from 2.1993. It was further directed that the Excise Commissioner will adopt the above date and work out the consequential impact on the seniority by taking various Court directions issued on the seniority lists prepared also into consideration and proposed creation of supplementary posts required at the level of Preventive Officers, Excise Inspectors, etc. so as to prevent reversion and retrenchment. A further direction was issued by the Excise Commissioner as per Ext.P4 directing a