IMPORTANT POINTS
• If the General Rule is later in time or if there is no repugnancy between the General and the Special Rules, the General Rules will prevail over the Special Rules. The distinction drawn with respect to this legal proposition in Maya Mathew was based on the facts of that case.
• Whether the General Rule in the KS&SSR for consideration of merit and suitability for promotion of policemen would survive in the context of Section 101 (6) of the Kerala Police Act, 2011; insofar as the penalties in items (a) to (j) of Section 101 (4) are concerned. The contention raised in the original petitions by the Police personnel imposed with penalty consequent to departmental proceedings was that their non-inclusion in the select list for promotion for reason of the penalty was illegal in view of the exception under Section 101(6) of the Kerala Police Act, inasmuch as the rigor of penalty applied to the relevant assessment years cannot be a bar for promotion when the penalty imposed is one of those under items (a) to (j) of Section 101(4).

JUDGMENT :

V.G.Arun, J.

The petitioners in this original petition were respondent Nos. 21, 23, 24 and 25 in O.A.No.653 of 2017 filed before the Kerala Administrative Tribunal. The applicants before the Tribunal are arrayed as respondents 1 to 20 and 22 in this original petition. The parties and the documents are referred hereafter as per their description in the original application. The dispute is between candidates in the rank list and the in-service candidates eligible for by transfer appointment to the post of Nursing Tutor. Prior to the introduction of the Kerala Health Services (Nursing in Education Wing) Service Rules,2010, with effect from 18.3.2010, appointment to the post of Nursing Tutor was entirely by way of by transfer from among eligible in-service candidates, in the absence of whom alone direct recruitment could be resorted to.

2. The applicants before the Tribunal are persons included in Annexure A1 rank list of Nursing Tutor published by the Kerala Public Service Commission (for short 'PSC') and brought into effect from 30.3.2017. The party respondents before the Tribunal, including the petitioners herein, are in-service personnel appointed by transfer to the vacant posts of Nursing Tutor. The issue canvassed before the Tribunal was as to whether the ratio 3:1 for appointment by way of by transfer and direct recruitment to the post of Nursing Tutor provided under the Kerala Health Services (Nursing in Education Wing) Service Rules, 2010 ought to be applied to the cadre strength of the post or to the vacancies arising from time to time.

3. As per Annexure A3 letter dated 9.5.2011, the Government clarified that the vacancies which had arisen prior to the Special Rules should be filled up by following the method prevailing at the time when the vacancies had arisen and the vacancies arising after the Special Rules came intoforce are to be filled up by applying the ratio 3:1 to the cadre strength.

4. As on 18.3.2010, the date of introduction of the Special Rules, the cadre strength of Nursing Tutors post was 87. Out of the 87 posts, 65 posts were lying vacant. Thereafter, 16 vacancies of Nursing Tutor arose in between 18.10.2010 and 1.12.2015, as evidenced by Annexure A4. Out of the 16 vacancies, 4 were reported to the PSC for direct recruitment and 12 vacancies filled up through by-transfer appointment. Eight more vacancies are alleged to have arisen due to retirement, termination and non-joining of candidates and 19 posts created as per Annexure A6 dated 20.10.2016. Out of these 27 vacancies, 19 were filled through by transfer method and 5 were reported to the PSC. Annexure A5 evidences 76 vacancies of Nursing Tutor having been filled up through by transfer appointment. According to the applicants, with the addition of 19 posts as per Annexure A6, the present cadre strength of Nursing Tutor became 106 (87+19) and therefore, applying the ratio 3:1 to the cadre, 26 vacancies that arose after 24.3.2010 ought to have been filled up by direct recruitment. Instead, all the vacancies that had arisen before the Special Rules came into force and 31 out of the 43 vacancies that had arisen after the Special Rules came into force were filled up by effecting by transfer appointment and only 8 were reported to the PSC.

5. The respondents on the other hand submitted that 44 vacancies had arisen after 18.3.2010, including three NJD vacancies of by transfer appointees. By applying the 3:1 ratio, 10 vacancies were reported to the PSC for direct recruitment. The remaining 34 vacancies (including the 3 NJD vacancies) were filled up by way of by transfer appointment from among Head Nurse, Staff Nurse-Gr.I and Gr.II. This, the respondents contended, was in accordance with the prescription in the Special Rules, which was to apply the ratio 3:1 to the vacancies.

6. The legal contention urged by the applicants was that Note (3) to Rule 5