IMPORTANT POINT
Promotion ratios in public service cannot be challenged unless proven arbitrary or ultra vires; fixation is a policy decision within the executive's domain, not strictly bound by cadre strength.

JUDGMENT :

A.Muhamed Mustaque, J.

The petitioners approached the Tribunal challenging the ratio prescribed for appointment as Assistant Station Officer by promotion. The Tribunal dismissed the challenge in the light of the judgment of this Court in Elsy P. Sebastian and Others v. K. L. Sudhamony and Others , [2010 (1) KHC 632] , wherein this Court held that the ratio of promotion category in a Rule cannot be challenged unless it is shown that rule is ultra vires, beyond the rule making power of the delegate of legislature, arbitrary and unreasonable.

2. Invoking power under the Kerala Public Services Act , 1968, the Government of Kerala made the Special Rules in respect of the Kerala Fire Subordinate Service, 1988. There are six categories of officers in the service. The category 2 is the Assistant Station Officer. Appointment to the post of Assistant Station Officer is from Category 3 - Leading Fireman and Category 4 - Driver Mechanic. In the Note, the ratio between Leading Fireman and Driver Mechanic is fixed at 9:1.

3. The Leading Fireman is now renamed as Senior Fire & Rescue Officer (hereinafter referred to as ‘Leading Fireman’). The Driver Mechanic is renamed as Senior Fire & Rescue Officer (Mechanic) (hereinafter referred to as ‘Driver Mechanic’).

The cadre strength of Leading Fireman is 502. The cadre strength of the Driver Mechanic is 130.

4. The challenge is on the ground that the ratio is not proportionate and the ratio, as prescribed now, unreasonably favours the Leading Fireman. In the Original Application, the petitioners stated that the cadre strength of Leading Fireman is 496 and that of Driver Mechanic is 130 and therefore, based on the cadre strength, the ratio ought to have been 4:1. According to the learned counsel for the petitioners, even going by the strength of 502:130, the ratio of 4:1 will have to be maintained.

5. In the counter filed by the 2nd respondent before this Court, the justification of the ratio is stated as follows:

“7. It is submitted that the number of Senior Fire & Rescue Officer & Senior Fire & Rescue Officer (Mechanic) in the department is respectively 502 & 130 i.e.. the number of Senior Fire & Rescue Officer (Mechanic) is very less compared to Senior Fire & Rescue Officer. Therefore the ratio for promotion to Assistant Station Officer i.e. 9:1 is legal, reasonable and sustainable. The promotion of Assistant Station Officer is done by the norms mentioned in the special rules. The department strictly follows the ratios fixed for promotion as Assistant Station Officer which is justifiable in all respects.

9. It is submitted that the number of Senior Fire & Rescue Officer and Senior Fire & Rescue Officer (Mechanic) in the department is respectively 502 & 130 i.e. the number of Senior Fire & Rescue Officer (Mechanic) is very less compared to Senior Fire & Rescue Officer. Therefore the ratio between Senior Fire & Rescue Officer (Mechanic) and Senior Fire & Rescue Officer to give promotion as Assistant Station Officer cannot be fixed at 1:1. or else.”

6. The Tribunal dismissed the challenge, relying on Elsy P. Sebastian (supra). The challenge in the above case was in regard to the common seniority list under the Special Rules for Social Welfare Service Rules, 1992, for appointment in the post of Regional Probation Officer (Category 4). Appointments to Category 4 were made through promotions from Categories 5 and 6. A common seniority list of incumbents in Categories 5 and 6 was prepared as prescribed by the rule. The learned Single Judge held that the rule is arbitrary as some of them were appointed to Category 5 belatedly due to a dearth of vacancies and absence of promotional opportunities.

7. The Division Bench overruled the decision by stating that the rule can be struck down only on the limited grounds, and held as follows:

“Going by the above dictum, if the provisions of the rule are ultra vires of the parent Act, the said rule can be struck down. If the rule is in conflict with any other statut