IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 WA.No. 1050 of 2009 ------ ------------------------------ AGAINST THE JUDGEMENT IN WPC.6045/2008 Dated 25/02/2009 .................... APPELLANT(S): RESPONDENTS 1 TO 3 IN THE WPC: 1. STATE OF KERALA, REP.BY SECRETARY TO GOVERNMENT, TAXES (F) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF EXCISE, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM. 3. JOINT COMMISSIONER OF EXCISE, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM. BY SR. GOVERNMENT PLEADER SRI. BENNY GERVASIS RESPONDENT(S): PETITIONERS & RESPONDENTS 4 & 5 IN THE WPC. 1. KRISHNA KUMAR.T.G., EXCISE PREVENTIVE OFFICER, EXCISE CIRCLE OFFICE,KOCHI. 2. FAIZAL.K.A.,EXCISE PREVENTIVE OFFICER, OFFICE OF THE DEPUTY COMMISSIONER OF EXCISE, CENTRAL ZONE,KOCHI. 3. JOY ABRAHAM, EXCISE PREVENTIVE OFFICER, EXCISE RANGE OFFICE,PALA,KOTTAYAM. 4. V.P.SUDHAKARAN, EXCISE PREVENTIVE OFFICER EXCISE INTELLIGENCE AND INVESTIGATION BUREAU, KOTTAYAM. R1 & R2 BY ADV. SRI. N. SUGATHAN. R3 BY ADV. SRI. KALEESWARAN RAJ. R4 BY ADV. SRI. P.C. SASIDHARAN. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 26/05/2009, ALONG WITH WA NO. 669 OF 2009 AND CONNECTED CASES THE COURT ON 26/06/2009 DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. --------------------------------------------------------- W.A. Nos.1050, 669, 753, 755, 757, 758, 763, 764, 765, 789, 806, 904, 1027, 1048, 1053, 1060, 1061, 1071 and 1072 of 2009 --------------------------------------------------------- Dated this, the 26th day of June, 2009 JUDGMENT 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 W.A.Nos.1050/2009 & connected cases 2 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 W.A.Nos.1050/2009 & connected cases 3 “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. W.A.Nos.1050/2009 & connected cases 4 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. & S.S.R., on the ratio prescribed in the Special Rules in the Kerala Agricultural Income Tax and Sales Tax Service. The Apex Court in Prakash v Kurian [1999(2) K.L.T. 710] held that Note 3 to Rule 5 will prevail over the ratio prescribed in the said Special Rules. Relying on the said decision of the Apex Court, the learned Single Judge allowed O.P. No.27869 of 1999, by the decision in Seethilal v. State of Kerala, [2000(2) K.L.T. 475]. The relevant portion of the said judgment reads as follows: W.A.Nos.1050/2009 & connected cases 5 “8. The main part of R.5 of Part II KS & SSR is applicable only when the method of appointment is by direct recruitment and recruitment by transfer. It does not refer to appointment by promotion. But Note (3) deals with all methods of recruitment. Note (3) does not restrict its application to the two methods mentioned in the main body of the rule. Thus, according to me, if at all there is an ambiguity regarding the main part of R.5, it has been clarified by the rule making authority to apply whenever a ratio or percentage is fixed for different methods of recruitment/appointment. Thus the fixed ratio or percentage must be applied to the cadre strength of the posts and not according to the vacancies existing. Applying the principles laid down by the Supreme Court and by this Court regarding the scope of a Note added in a rule which forms part of the rule, it can be safely held that whatever ambiguity is there in R.5 is cleared by categorically stating that the ratio or percentage must be applied to the cadre strength and not to the existing vacancies. Moreover, it may not be appropriate for me now to distinguish the ruling of the Supreme Court when it has been held that the language of R.5 is clear and unqualified. It was further held that the intention of the Legislature in adding Note (3) is clear and is added to fill in the existing lacuna in the method of recruitment provided in the Special Rules. 9. Under these circumstances the Original Petition is allowed. It is 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 W.A.Nos.1050/2009 & connected cases 6 existing vacancies. The respondents are directed to effect the promotions to the cadre of Preventive Officers following the observations made in this judgment.” (emphasis supplied) The said decision was affirmed by a Division Bench of this Court in W.A. No.1085 of 2000 dated 13.6.2000. The relevant portion of the said judgment reads as follows: “3. We are not impressed by the above argument. While provision is made to the effect that every 4th substantive vacancy shall be filled or reserved to be filled by direct recruitment, its meaning is 25% of the vacancies are to be filled or reserved to be filled by direct recruits. No different meaning could be attributed to the Special Rules. If that be so, the dictum laid down by the Supreme Court in 1999(2) KLT 710 is directly applicable to the present case also. Learned Judge was fully justified in granting the prayer of the petitioners in the original petition following the decision of the Supreme Court.” Soon thereafter, other Writ Petitions were also filed, challenging direct recruitment in excess of the quota and claiming promotion in accordance with the ratio prescribed. The said batch of cases (W.A. No.994 of 1999 and connected cases) was disposed of by the Division Bench, by judgment dated 12.7.2000. The operative portion of the said judgment reads as W.A.Nos.1050/2009 & connected cases 7 follows: “Since the very same special Rules were considered by a bench of this Court with regard to the promotion of Excise Preventive Officers from Excise Guards and direct recruitment in the post of Excise Guards (sic - Excise Preventive Officers) we follow the above judgment and all these Original Petitions and Writ Appeals are disposed of in terms of the Judgment in W.A. No. 1085/2000. Consequent order may be passed by the Government within three months from the date of receipt of a copy of this Judgment.” 5. According to the Government, the cadre strength of Excise Preventive Officers at the relevant time was 630. By applying the ratio, the share of direct recruits was 210. At the relevant time, 8 direct recruits were already working in that cadre. Therefore, the remaining vacancies available for direct recruitment were 202. It is common case that pursuant to the advice of the Public Service Commission and appointments made pursuant thereto, 287 candidates joined service as Excise Preventive Officers. According to the Government, as a result of the direct recruitments made, there were 85 excess P.S.C. hands. 6. Apprehending that the decision in Seethilal's case will affect them, some of the direct recruits, who were not parties to that judgment, W.A.Nos.1050/2009 & connected cases 8 filed W.A. No.1815 of 2000 against the said decision. The said Writ Appeal was disposed of by this Court by judgment dated 16.10.2000. The said judgment reads as follows: “This appeal has been preferred against the judgment in O.P. 27869/1999. Appellants were not parties to the Writ Petition. Writ Petition was preferred by some Excise guards who were aspiring for promotion to the post of Preventive Officers. They sought a writ of mandamus directing the respondents not to make any appointment by direct recruitment, in the cadre of Excise Preventive Officers in excess of 25% of sanctioned posts of Excise Preventive Officers in Alleppey Excise Division. Other consequential reliefs were also sought for. Learned Single Judge disposed of the writ petition on 7.4.2000 declaring 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 the existing vacancies. The department was directed to effect the promotions to the cadre of Preventive Officers following the observations made in the judgment. Aggrieved by those directions this appeal has been preferred by third parties. 2) A statement has been filed on behalf of respondents 6 and 7. Paragraph 5 of the statement reads as follows: It is respectfully submitted that in the judgment dated 7.4.2000 in O.P. No.27869/99 the Hon'ble High Court has ordered that the direct recruitment to the post of Excise Preventive Officers must be confined to the ratio prescribed as W.A.Nos.1050/2009 & connected cases 9 applicable to the cadre strength and not to the existing vacancies. Therefore any further direct recruitment in future in the cadre of Excise Preventive Officers will be in strict adherence to the directions of the Hon'ble High Court. To this effect a draft notification to amend the existing Special Rules substituting “every fourth vacancy” with 25% of cadre strength of the category shall be filled by direct recruitment” has been forwarded to Government, and the amendment proposal is under the active consideration of Government. Under such circumstance, we notice that Government isn't taking steps to disturb the appointments already effected to the post of Excise Preventive Officers. This statement is recorded and the appeal is disposed of. We are not expressing opinion with regard to the other reliefs granted by the learned Single Judge. Counsel for the Public Service Commission submitted that the same judgment has already been upheld in W.A. 1805 of 2000.” (Emphasis supplied) The persons awaiting promotion to the post of Excise Preventive Officers felt that recording of the submission made by the Government in the above judgment that excess P.S.C. recruits will not be disturbed, would stand in the way of implementing the decision in Seethilal's case and so, they filed R.P. No.590 of 2000. The said Review Petition was disposed of by this Court, by order dated 18.12.2000 in the following terms: W.A.Nos.1050/2009 & connected cases 10 “This revision has been filed after obtaining leave of this Court. The appellant was not a party to the Writ Appeal. When the matter came up for hearing, learned counsel for the appellant submitted that the judgment in O.P. No.27869/99 has already been confirmed by another Division Bench in W.A. No.1085/2000. Reference was also made to another judgment of this Court in O.P. No.12935/99 as well as judgment in W.A. No.1085/2000. The complaint of the counsel for the appellant is that without considering the scope of those judgments, this Court has recorded the statement filed by the learned Government Pleader. The statement has been recorded in paragraph 2 of the impugned judgment. Counsel submitted that the recording of the statement would stand in the way of the implementation of the judgment in O.P. No. 27869/99. We make it clear that the statement recorded will not dilute the direction given in O.P. No. 27869/99. Suffice to say that the statement recorded would not dilute the direction given by the learned Single Judge in O.P. No. 27869/99 which was confirmed by the Division Bench. This Revision Petition is disposed of.” (emphasis supplied) 7. Since the judgment of the Division Bench of this Court in W.A. No. 994 of 1999 and connected cases was not implemented, contempt proceedings were initiated and thereupon, the Government passed orders, as directed in the aforesaid Writ Appeal and connected cases, as per G.O. (MS)No. 61/03/TD dated 4.4.2003 (produced as Ext.R4(c) in W.P.(C) W.A.Nos.1050/2009 & connected cases 11 No.5935 of 2008, from which arises, W.A. No.758 of 2009). When the above order was produced before the Division Bench in Contempt Case No.175 of 2001, this Court took the view that the said order cannot be treated as an order in terms of the directions issued by this Court. Later, the Government issued a revised order, G.O.(MS) No.155/2003/TD dated 14.10.2003, which is produced as Ext.P9 in W.P.(C) No.6045 of 2008. W.A. No.1050 of 2009 is filed against the judgment in that Writ Petition. The relevant portion of the said order dated 14.10.2003 reads as follows: “As per letter read above, the following directions were given to the Commissioner of Excise, Thiruvananthapuram. i. The amended provision of General Rules as per G.O.(P) No. 57/92/P&ARD dated, 5.12.1992 will be implemented in Excise Department w.e.f. 2.2.1993 in compliance of the Hon'ble High Court Judgment dated, 7.4.2000 in O.P. 27869/99. ii. The Excise Commissioner was requested to adopt the above date and work out the consequential impact on seniority by taking into consideration various Court directions on the seniority lists already prepared, and propose creation of supernumerary posts required at the level of Preventive Officers, Excise Inspectors etc. so as to avoid reversion and retrenchment. iii.In order to prevent additional expenditure, the equivalent number of lower posts (Excise Guards) was directed to be kept vacant without W.A.Nos.1050/2009 & connected cases 12 notifying them till the supernumerary posts are regularised in the arising vacancies so that the total financial commitment to the department would not change substantially. 2. Accordingly the Commissioner of Excise revised the seniority list of Excise Preventive Officers for the period from 2.2.1993 to 31.12.1998, strictly applying the cadre strength ratio as ordered by the Hon'ble High Court. The directly recruited Preventive Officers were accommodated in the allowable quota of 210 applying the cadre strength ratio and the excess directly recruited Preventive Officers were later accommodated in the cadre on subsequent dates strictly adhering to the cadre strength. In affidavit dated, 1.9.2003 filed before the Hon'ble High Court in CCC 1758/01 it was stated that when the seniority list of Preventive Officers as per the cadre strength for the remaining period from 1.1.99 is prepared and finalized, eligible rank and position will be assigned to the promotee Excise Preventive Officers above the direct recruits taking into account the deficiency. 3. The Additional Advocate General as per his Fax Message read above, has informed that the present grievance in the CCC is that though the Promotee Preventive Officers were given seniority applying the cadre strength, directly recruited Preventive Officers can content later that they are entitled to get seniority in the cadre from the respective date of advice by the Public Service Commission. Considering the same, to put an end to the dispute between the Promotee Preventive Officers and directly recruited Preventive Officers, and for regulating the seniority between them, Government Order that the excess directly W.A.Nos.1050/2009 & connected cases 13 recruited Preventive Officers in the Excise Department will be treated as holding supernumerary post till the respective dates of accommodating them in the subsequent vacancies strictly adhering to the cadre strength.” (emphasis supplied) 8. It appears that representations were filed against the aforesaid order before the Government by the direct recruits. This Court, by judgment dated 7.12.2005 in W.P.(C) No. 3400 of 2005, directed the Government to consider their representations. In obedience to the said direction, the representations were considered and G.O.(Rt.) No.223/06/TD dated 4.4.2006 was passed (Ext.P10 produced in W.P.(C) No.6045 of 2008). The relevant portion of the said order reads as follows: “The Additional Advocate General has opined that assigning seniority to the directly recruited Preventive Officers on their respective dates and by fixing the seniority of sufficient number of promotee Preventive Officers on the same advice date could be achieved by revising the seniority list of Preventive Officer if necessary from 2.3.1993. Thereafter the seniority list has to be revised giving advice seniority to the direct recruitees from their respective advice dates. But at the same time, sufficient number of promotee Preventive Officers also have to be assigned seniority on the same advice date below the direct recruits on the same advice date, but strictly adhering cadre strength ratio of 25%:75% if W.A.Nos.1050/2009 & connected cases 14 seniority list is revised up to 31.12.1998, and when seniority list is prepared for the subsequent period, there will be no necessary (sic. necessity) of creating any supernumerary post because by this time, direct recruitees and promotees who were assigned seniority without considering the sanctioned posts, would have been regularized during the said period. Only thing is that the period from the date of assigning seniority on the advice date to the direct recruitees and assigning seniority to the promotees till they are regularized against the sanctioned posts will have to be treated as notional. As far as Preventive Officers who have been promoted as Assistant Excise Inspector in the meanwhile, they need not be disturbed and they may be accommodated by treating them as holding supernumerary post if necessary. But at the same time while promoting direct recruitees to the cadre of Assistant Excise Inspectors, the period which they have actually worked as Assistant Excise Inspector can be treated as notional and hence there is nothing wrong in revising the seniority list giving advice seniority to direct recruitees. The problem of creating supernumerary posts to accommodate persons holding the post in excess of the sanctioned posts and reversion of officers not really arise as the seniority list is to be revised for even during the period after the regularization of the position. In the circumstances, the Additional Advocate General has recommended that advice seniority be given to the direct recruitees by (1) giving advice seniority to the excess direct recruitees from the date of their respective advice dates. (2) giving seniority of sufficient number of promotee Preventive officers on the same W.A.Nos.1050/2009 & connected cases 15 advice dates in order to adhere to the cadre strength ratio. Accordingly Government are pleased to order to assign seniority to the directly recruited Preventive Officers on their respective advice date by the PSC and to give seniority of sufficient number of Promotee Preventive Officers on the same advice date below the direct recruits in order to adhere to cadre strength ratio. The Excise Commissioner will revise the seniority list of Preventive Officers from 2.3.1993 on the above lines. Ext.P3 representation submitted by Sri. P.K. Satheesh and others are disposed of accordingly.” Challenging the above order, Writ Petitions were filed before this Court. They were disposed of along with other connected Writ Petitions, by a learned Single Judge of this Court, by Ext.P11 judgment dated 28.2.2007, produced in W.P.(C) No.6045/2008. The relevant portion of the said judgment reads as follows: “Having regard to the various contentions advanced by the parties, and on going through the impugned Ext.P11 order, it is fairly clear that the Government has not applied its mind properly to the implications of the order in the background of the contentions advanced by the parties. Since I propose to remit the matter to the Government, it will not be proper for this Court to express any opinion on the merits of the contentions since both W.A.Nos.1050/2009 & connected cases 16 sides have addressed several contentions, many of which I have not referred to in the judgment. In any case, the Government should not have passed Ext.P11 order behind the back of the beneficiaries of Ext.P6 order. In that view of the matter, I set aside Ext.P11 order and remit the matter to the Government with a direction to consider Ext.P3 representation referred to in Ext.P10 judgment afresh with notice to all the parties to these writ petitions since all the affected parties have been impleaded in a representative capacity. This shall be done within a period of four months from the date of production/receipt of a copy of the judgment by either side. It is made clear that I have not expressed any opinion on the merits of the case and it is for the Government to consider the issue, adverting to the contentions taken by the respective parties. Further proceedings based on and pursuant to Ext.P11 will be deferred till the Government takes a decision as above. The writ petitions are disposed of as above.” Though certain Writ Appeals were attempted against the said judgment, they were disposed of, affirming the direction of the learned Single Judge. The said decision of the Division Bench dated 28.2.2007 in W.A. No.1485 of 2007 and connected cases is produced as Ext.P12 in W.P.(C) No.6045 of 2008. 9. The Government, thereafter, heard the matter. On behalf of the Government, it was Smt. G. Sreekumari, Joint Secretary for Secretary to W.A.Nos.1050/2009 & connected cases 17 Government, who heard the parties. The Government later passed G.O. (MS) No.22/08/TD dated 13.2.2008 (produced as Ext.P15 in W.P.(C) No. 6045 of 2008 against which judgment W.A. No.1050 of 2009 is filed), upholding the contentions of the promotees in the seniority dispute between them and the direct recruits. The relevant portion of the said order reads as follows: “Government have reviewed the entire aspects of the case in detail on pursuant to the orders of the