Balakrishnan Nair, J.

The appellants challenge the judgment of the learned Single Judge in O.P. No.34203 of 2000 and connected cases dated 25.2.2009. Some of the above appeals have been filed by persons, who were not parties to those Original Petitions/Writ Petitions, after seeking leave of this Court. The main point that arose for decision in the Writ Petitions was the dispute regarding seniority between direct recruits and promotees to the post of Excise Preventive Officer in the Excise Department of the Kerala Government. The direct recruits advised and appointed in excess of their quota in the relevant rules, were accommodated in supernumerary posts and as and when their turn arose as per the ratio prescribed in the rules, they were regularly absorbed. Whether such persons are entitled to get seniority with effect from their respective dates of advice by the Public Service Commission or only from the date their turn arose, is the dispute to be resolved in this case.

2. The Kerala Public Service Commission issued notification inviting applications for appointment to the post of Excise Preventive Officer on 19.12.1989. The rank list was published on 31.12.1997. During the years 1998 and 1999, 287 candidates joined duty from among the candidates who were appointed from the said rank list, based on the advice of the Public Service Commission.

3. The method of appointment to the post of Excise Preventive Officers is prescribed by the Special Rules for the Kerala Excise and Prohibition Subordinate Service. As per the said rules, the vacancies in the cadre of Excise Preventive Officers are to be filled up by

(i) direct recruitment and (ii) by promotion from Excise Guards. The rules further provide that every fourth substantive vacancy shall be filled or reserved to be filled by direct recruitment. As per the Special Rules, the ratio of 1:3 between direct recruits and promotees was being worked out with reference to the substantive vacancies. While so, the Government amended Rule 5 of Part II of the Kerala State and Subordinate Services Rules, 1958 (for short "K.S. & S.S.R.") by inserting Note 3 under the said rule. The said Note 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."

Apparently there was conflict between the provisions contained in Rule 5 of the K.S. &

S.S.R and the aforementioned Special Rules, regarding the application of the ratio. While so, a Division Bench of this Court in Velappan v. State of Kerala [I.L.R. 1997(2) Kerala 441] held, inter alia, that for recruitment to the posts of Excise Preventive Officers in the Department, the ratio has to be worked out with reference to the substantive vacancies. The Division Bench also held that the above quoted Note will not apply when the appointments from one of the sources is by promotion, instead of recruitment by transfer.

4. Apparently, relying on the above legal position laid down by this Court in Velappan's case (supra), appointments to the post of Excise Preventive Officers were being made, applying the ratio, to the substantive vacancies available. The Excise Guards, who were aspiring for promotion to the post of Excise Preventive Officers, felt that direct recruitment was being made in excess and to their detriment and the vacancies, which should have been filled up by promotion, were also being allotted to the recruits advised by the Public Service Commission. Therefore, they approached this Court, by filing O.P. No.27869 of 1999, claiming promotion strictly in accordance with the ratio prescribed in the Special Rules. In the meantime, the Apex Court had occasion to consider the impact of the amendment to Note 3 to Rule 5 of the K.S.