K. Balakrishnan Nair, J.

W.A.No.1873 of 2009

The appellants were respondents 3 to 6 in the Writ Petition. The first respondent herein was the writ petitioner. The point that arises for decision in this case is the constitutional validity of the Special Rules for the Kerala Social Welfare Service, to the extent they concern the method of appointment to the post of Regional Probation Officer/Assistant Regional Director/Assistant Director of Social Welfare (Category No.4).

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

As per the Special Rules, the District Social Welfare Officer, Inspector, Special Nutrition Programme Grade I and District Probation Officer Grade I are the feeder categories for promotion to the post of Regional Probation Officer/Regional Assistant Director/Assistant Director of Social Welfare. The appellants were appointed to the post of District Probation Officer Grade I on 24.10.1998, 4.3.1999, 29.11.1999 and 29.11.1999 respectively. The first respondent/writ petitioner was appointed to the feeder category post of District Social Welfare Officer on 14.12.2000. The method of appointment to Category No.4, which was prevailing at the relevant time, was promotion from Category No.5 (District Social Welfare Officer/Inspector, Special Nutrition Programme Grade I) and Category No.6 (District Probation Officer Grade I). A common seniority list of the incumbents in Category Nos.5 and 6 is to be prepared and promotions are ordered to Category No.4 (Regional Probation Officer/Regional Assistant Director/Assistant Director of Social Welfare), strictly on the basis of their dates of appointment to the respective category. Because of the dearth of vacancies and resultant absence of promotional chances in the Department, persons like the first respondent were appointed to Category No.5 (District Social Welfare Officer) only belatedly. The persons who joined as Lower Division Clerk, like the appellants, got accelerated promotions and reached the feeder category, that is, Category No.6 (District Probation Officer Grade I) earlier. Since promotion to Category No.4 is made from the common seniority list prepared with reference to the date of appointment to the respective categories, persons from Category No.6 got promotion earlier, to the post in Category No.4.

3. The Departmental Promotion Committee constituted for considering promotion to Category No.4 met and based on its decision, the Government published a list on 30.10.2007, of eligible officers in Category Nos.5 and 6, for promotion to the post in Category No.4. On coming to know of the meeting of the Departmental Promotion Committee, the first respondent filed the Writ Petition, mainly seeking the following reliefs:

"(i) Issue a writ, order or direction declaring that Ext.P1 Special Rules as unconstitutional and to strike down the same.

(ii) Declare that the petitioner is entitled to get her due promotions in preference to respondents 2 to 6".

As evident from the submissions of the learned counsel for the first respondent before us, the only ground canvassed before the learned Single Judge, in support of the above reliefs, was ground A, which reads as follows:

"A. Ext.P1 Special Rules is violative of the Constitution as it is discriminatory and offends Art.14 and hence to be struck down. The special Rules treat unequals equally and equals unequally. The Rules are admittedly 'anomalous', a soft word used by the administration for 'unconstitutional'."

4. The State filed a counter affidavit, supporting the impugned provisions of the Special Rules. But, it is clear from the said affidavit that the respondent has noticed the anomaly in the operation of the Rules inasmuch as the persons belonging to Category No.5 are

.not getting the desired percentage of promotion and, therefore, proposals were put forward to amend the Rules, incorporating a ratio for promotion between Category Nos.5 and 6. The learned Single Judge, after hearing both sides, came to the conclusion