IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 19TH AUGUST 2010 / 28TH SRAVANA 1932 WP(C).No. 6036 of 2010(D) ------------------------------------- PETITIONERS: --------------------- 1. KERALA STATE EXCISE STAFF ASSOCIATION, KOZHIKODE, REP.BY ITS DISTRICT SECRETARY, K.C.KARUNAKARAN. 2. K.C.KARUNAKARAN, PREVENTIVE OFFICER, EXCISE CIRCLE OFFICE, PEERAMBRA, KOZHIKODE DISTRICT. 3. K.SUBRAMANIAN, PREVENTIVE OFFICER, EXCISE INTELLIGENCE AND INVESTIGATION BUREAU, KOZHIKODE, PO.CIVIL STATION, 4. K.P.SALEEMBABU, PREVENTIVE OFFICER, EXCISE INTELLIGENCE AND INVESTIGATION BUREAU, KOZHIKODE DISTRICT-673 012. 5. K.C.BALAN, EXCISE GUARD, EXCISE RANGE OFFICE, VATAKARA. 6. SIRAJ.N., EXCISE GUARD, OFFICE OF THE CIRCLE INSPECTOR OF EXCISE, KERALA STATE BEWERAGES CORPORATION, KOZHIKODE, NADAKKAVE.P.O. BY SRI.P.RAVINDRAN, SENIOR ADVOCATE, ADVS. SMT. P. DEEPAK, SMT. APARNA RAJAN. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM-695 033. W.P.(C). NO.6036/2010-D: 2. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, OFFICE OF THE KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM. 3. THE EXCISE COMMISSIONER, THIRUVANANTHAPURAM. *ADDL. RESPONDENTS 4 AND 5 IMPLEADED: 4. P.R. PRASANTH, `KRISHNA LEELA', AKANALLOOR, OTTAPPALAM, PALAKKAD DISTRICT. 5. M.V. ARUN DEV, MAVUNKAPPARAMBIL, ANDIKKADAVU.P.O., KOCHI – 8. *ADDITIONAL RESPONDENTS 4 AND 5 ARE IMPLEADED AS PER ORDER IN I.A. NO. 6473/10 DATED 25/06/10. R1 & R3 BY GOVT. PLEADER SRI. ANTONY MUKATH, R2 BY ADV. SRI.ALEXANDER THOMAS, SC,KPSC. ADDL. R4 & R5 BY SRI. K.R.B KAIMAL, SENIOR ADVOCATE, ADV. SRI. B. UNNIKRISHNA KAIMAL. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/08/2010, ALONG WITH W.P.(C). NO.20867/2010 AND CONNECTED CASES, THE COURT ON 19/08/2010 DELIVERED THE FOLLOWING: prv. ANTONY DOMINIC, J. ---------------------------------------------------------------------- W.P.(C) Nos.653/08, 34829/08,29087/09, 30506/09,36191/09 36753/09,4980/2010, 6036/2010, 12298/2010, 13751/2010, 13780/2010,17500/2010,20867/2010 & 21547/2010 -------------------------------------------------- Dated this the 19th day of August, 2010 J U D G M E N T The issue raised in WP(C) Nos.653/08, 34829/08, 29087/09, 30506/09, 36191/09, 36753/09, 4980/2010, 6036/2010, 12298/2010, 13751/2010, 13780/2010 and 17500/2010 is the legality of the steps taken by the respondents to appoint 158 candidates to the post of Excise Preventive Officers by direct recruitment. WP(c).Nos.21547/2010 & 20867/2010 have been filed by the candidates who have been advised by the PSC for appointment to the post of Excise Preventive Officers in the quota earmarked for direct recruitment, complaining that they are not issued orders of appointment. Since the issues raised in these writ petitions are connected, these writ petitions were heard together and are disposed of by this common judgment. 2. Among the Writ Petitions challenging appointment by direct recruitment, WP(c).No.6036/2010, is treated as the leading W.P.(C) No.6036/10 & conn.cases :2 : case and the facts pleaded are as follows; 3. First petitioner in this writ petition is the Kerala State Excise Staff Association, Kozhikode District Committee. Petitioners 2, 3 and 4 are Excise Preventive Officers and petitioners 5 and 6 are Excise Guards. Appointment to the post of Preventive Officers is governed by Excise Preventive Subordinate Service Rules 1974, ( here-in-after referred to as the “Special Rules” for Short). In terms of the Special Rules the post of Excise Preventive Officers is to be filled up by direct recruitment and by promotion from Excise Guards. As per the Special Rules, every 4th substantive vacancy shall be filled up or reserved to be filled by direct recruitment and the remaining vacancies shall be filled by promotion from among the Excise Guards, possessing the minimum qualification of SSLC and those who do not possess the said qualification, in the ratio of 1:1. 4. Case of the petitioners is that every 4th vacancy in the cadre of Excise Preventive Officers is to be filled up by direct recruitment and that this position continued until the issuance of Ext.P8 dated 4.6.2008, when the Special Rules were amended W.P.(C) No.6036/10 & conn.cases :3 : dispensing with direct recruitment. Petitioners state that, the cadre strength of Excise Preventive Officers was 842 and the posts available in the direct recruitment quota was 210. While so, ranked list was published by PSC on 31.12.1997 and 293 persons were advised from the ranked list, while the quota earmarked for direct recruitment only required advise and appointment of 202 candidates alone. It is stated that since excess candidates were appointed in the direct recruitment quota, several writ petitions were filed before this court questioning the validity of excess appointments. The writ petitions were disposed of by the judgment in Seethilal V. State of Kerala (2000(2)KLT 475) holding that the quota available to the direct recruits, should be maintained on the cadre strength. It is stated that the writ appeals filed against the judgment were dismissed and that in implementation of the aforesaid judgment, Ext.P4 order dated 14.10.2003 was issued by the Government directing that the excess appointees will be retained as Supernumerary till they are absorbed in the subsequent direct recruitment vacancies. W.P.(C) No.6036/10 & conn.cases :4 : 5. While so, Ext.P5 order dated 4.4.2006 was issued by the Government directing that the direct recruits will be given seniority as per the provisions contained in Rule 27(c) of KS & SSR. Ext.P5 order was challenged before this court in WP(c).No.13177/2006. The writ petition was allowed quashing Ext.P5 and directing to reconsider the matter with notice to all concerned. Petitioners state that accordingly the Government reconsidered the matter and issued Ext.P6 order dated 28.2.2007 restoring Ext.P4 order. It is stated that Ext.P6 was also set aside by this court upholding Ex.P5 and that the Writ Appeals filed against the said judgment were allowed and the judgment of the learned single Judge was reversed by a Division Bench of this court in the judgment in State of Kerala V. Krishna Kumar (2009(3) KLT 274). 6. The case of the petitioners is that during this period, the excess appointees who were appointed from the ranked list published on 31.12.1997, were continuing as supernumeraries without being accommodated against the subsequent direct recruitment vacancies. It is stated that, so long as the excess W.P.(C) No.6036/10 & conn.cases :5 : appointees are remaining as supernumeraries, there was no vacancy available in the direct recruitment quota to be notified to the PSC. According to the petitioners, while the position was remaining as such, the Public Service Commission issued Ext.P7 notification inviting applications for filling up 145 vacancies in the direct recruitment quota. It was thereupon that this writ petition was filed praying for a direction to the respondents not to make appointments pursuant to Ext.P7 notification without ascertaining the number of vacancies arising between the date of Ext.P7 and 4.6.2008, when the amended Special Rules came into force. A declaration that the 2nd respondent cannot report vacancies in excess of the cadre strength fixed by the Government is also sought for. 7. In essence, what the petitioners in this batch of writ petitions contended was that, the excess appointees from out of the ranked list published on 31.12.1007 should first be accommodated against the subsequent vacancies available in the direct recruitment quota, which should be assessed on the basis of the cadre strength W.P.(C) No.6036/10 & conn.cases :6 : and that after accommodating them, the vacancies, if any, available in the direct recruitment quota should be assessed and that it is only thereafter, can the respondents report vacancies to the Public Service Commission for direct recruitment. 8. The case of the respondents as disclosed from the counter affidavit is that as on 31.12.1997 cadre strength of Excise Preventive Officers was 842 and that number of posts available in the direct recruitment quota was 210. Respondents admit that, working out the ratio of direct recruitment on the basis of the vacancies, candidates were advised from the ranked list published on 31.12.1997 and 287 of them joined as Excise Preventive Officers. It is stated that in this process 82 excess appointees joined service in the direct recruitment quota. This was challenged in O.P.No.27869/99 filed by the Promotee Excise Preventive Officers and the case was disposed of by judgment dated 7.4.2000 in Seethilal V. State of Kerala (2000(2) KLT 475) holding that the direct recruitment must be confined to quota assessed on the basis of cadre strength. According to the respondents, in implementation W.P.(C) No.6036/10 & conn.cases :7 : of this judgment, Ext.P4 Government Order dated 14.10.2003 was issued directing that the excess direct recruits will be retained as supernumeraries till they are absorbed against the subsequent vacancies in the direct recruitment quota. 9. It is stated that this order was again challenged by both the promotees and the direct recruits. Subsequently, the Government issued order dated 13.2.2008, reiterating the position as stated in Ext.P4. While so, by Ext.R3(a) proceedings dated 16.12.2008, the Commissioner of Excise issued a final seniority list of Excise Preventive Officers for the period from 2.2.1993 to 30.6.2003 applying the principles laid down in the judgment in Seethilal's case (supra) and Ext.P4 Government Order. According to them, direct recruits were assigned seniority at Sl.Nos.522 to 733 and 82 excess direct recruits, who were retained as supernumeraries, were accommodated against the vacancies, in the direct recruitment quota, which arose on or after 1.1.2001. It is stated that Ext.R3(a) seniority list was challenged before this court in WP(c).No.34203/2002 and connected cases. The writ petitions W.P.(C) No.6036/10 & conn.cases :8 : were disposed of directing to assign seniority to direct recruits based on Rule 27(c) of KS & SSR and to publish a fresh seniority list. Accordingly, on 16.3.2009, a provisional seniority list was published. While so, W.A.No.789/09 and connected cases filed against the judgment in WP(c).No.34203/02 and connected cases were disposed of by a Division Bench of this court in State of Kerala V.Krishnakumar (2009(3) KLT 274) reversing the judgment of the learned single Judge. On account of this Commissioner of Excise issued Ext.R3(b) proceedings dated 6.7.2009 reviving Ext.R3(a) seniority list. 10. In so far as the direct recruitment quota, the excess appointments made in the direct recruitment quota and the manner in which the excess appointees were accommodated in the subsequent vacancies are concerned, these aspects have been explained in the counter affidavit filed by the respondents, the relevant portion of which reads as under; “It is submitted that the cadre strength of Preventive Officers was 842 during 1998-1999. From the rank list published by the Public Service Commission on 31.12.1997, 287 Excise Preventive Officers were directly recruited. According to the cadre strength 25% W.P.(C) No.6036/10 & conn.cases :9 : of the cadre strength is 210. On that point of time already 8 Direct Recruits were in position. Therefore 85 PSC hands were in excess of the cadre strength. During the relevant period 3 Excise Preventive Officers were left the Department and accordingly the excess was reduced to 82 posts. Taking into account the above position 210 and directly recruited Preventive Officers were assigned seniority in Ext.R3(a) from rank No.522 to 730 in the quota set apart for direct recruits. The promotee officers were promoted subsequent to the Direct Recruitment of Sl.Nos.522 to 730 were assigned seniority from serial No.731 onwards. The 82 directly recruited Preventive Officers who were found to be excess were accommodated against the vacancies which were arose on or after 1.1.2001 consequent on the creation of two vacancies under 25% quota and promotion of the directly recruited Preventive Officers to the post of Assistant Excise Inspector. The first person was accommodated against the vacancy which arose on 1.1.2001 at Sl.No.1217 and the 2 nd person was accommodated against a vacancy arose on 20.3.2001 at Sl.No.1252. Remaining 80 excess Preventive officers were accommodated in the vacancies consequent on the promotion of directly recruited Preventive Officers to the Higher Post of Assistant Excise Inspector from 1.7.2001 to 1.5.2002.” (emphasis supplied) 11. The details of 158 vacancies which are available to be filled up by direct recruitment, have been explained in paragraph 4 and 5 of the counter affidavit, which, to the extent it is relevant, reads as under; “ The total cadre strength of Preventive Officers in the Department as on 11.7.2006 was 921 and the 25% of the direct quota was 230. At that time 85 directly recruited W.P.(C) No.6036/10 & conn.cases :10 : Preventive Officers existed in the department. The remaining 145 posts of 230 were reported to Public Service Commission on 11.7.2006, strictly adhering to the cadre strength. This was done as per the direction contained in the Government Letter No.23262/FI/2004/TD dated 8.9.2004 and as per the circular Order No.5987/Adv.C3/2006/P & ARD dated 24.6.2006 issued in compliance with the cabinet decision directing all heads of Department to report all the existing permanent vacancies to the Public Service Commission within two weeks without fail. 5. In order to comply with the instructions contained in the above said Government Order and Circular, the Department calculated the vacancies for direct recruitment quota of 25% which arose after 1.5.2002 which came to 145 vacancies and reported the same on 11.7.2006 to Public Service Commission for advising suitable candidates. Later as per G.O(MS).No.126/2006/TD dated 6.12.2006, Government have sanctioned for the creation of 53 posts of Preventive Officers. Accordingly 13 vacancies (ie.25% of the newly created 53 posts) were reported to Public Service Commission on 12.11.2007. Therefore, altogether 158 vacancies were reported to the PSC.” (emphasis supplied) 12. The pleadings thus show that 145 vacancies were reported to the PSC on 11.7.2006, and that, on that basis, the PSC issued Ext.P7 notification dated 28.3.2007, that written test was held on 12.1.2009, that short list was published on 12.8.2009, that physical efficiency test was held between 10.12.2009 to 15.12.2009, that ranked list was published on 19.3.2010 and 158 W.P.(C) No.6036/10 & conn.cases :11 : candidates were advised for appointment on 29.3.2010. 13. In these writ petitions, since the challenge is basically on the ground that when 145 vacancies were reported to the PSC, vacancies were not actually available in the direct recruitment quota, this court by order dated 29th of March, 2010 directed the respondents to file an affidavit indicating the cadre strength of Assistant Excise Inspectors, the promotion post of Excise Preventive Officers, the details regarding the number of Assistant Excise Inspectors available immediately prior to the granting of first promotion resulting in vacancies to accommodate the senior most supernumerary hands, dates on which vacancies in the cadre of Assistant Excise Inspector had occurred and the dates on which promotions were effected from the category of directly recruited Excise Preventive Officers as also the promotee Excise Preventive Officers. 14. In compliance with this direction, additional counter affidavit dated 8.4.2010 has been filed, disclosing the aforesaid particulars. Paragraph 3 of this affidavit, being relevant, is extracted W.P.(C) No.6036/10 & conn.cases :12 : below for reference. “It is submitted that the cadre strength of the Assistant Excise Inspector is 82 as on 31.12.1997 on which date the PSC rank list was published. After 31.12.1997 and up to 1.8.2001 a total number of 317 Excise Preventive Officers were promoted as Assistant Excise Inspectors. Out of the 317 Preventive Officers promoted as Assistant Excise Inspectors only 4 directly recruited Excise Preventive Officers were there. The 4 directly recruited Excise Preventive Officers who got promotion during the said period is Sri.S.T. Manilal, P. Vijayanatha Panicker, V.P. Gopalakrishnan and V. George. These promotions were effected from the provisional seniority list of Preventive Officers. When the final seniority list of Excise Preventive Officers were published after calling for objections and considering the appeals 11 promoted Preventive Officers were pushed down in their seniority and rank in the category of Excise Preventive Officers and accordingly the date of promotions of these 11 Excise Preventive Officers promoted as Assistant Excise Inspectors were assigned date of promotion after accommodating directly recruited Preventive Officers as Assistant Excise Inspectors. Therefore the first directly recruited Preventive Officer was regularized in the higher category of Assistant Excise Inspector on 1.7.2001. The above 11 promotee Officers were assigned rank and seniority as serial Nos.734, 735, 739, 742, 747, 748, 763, 768, 775, 778, 845 in the category of Excise Preventive Officers and their promotions to the category of Assistant Excise Inspectors was regularized in accordance with their ranking in Ext.R3(a) seniority list. It is submitted that as stated earlier a total number of 317 Excise Preventive Officers were promoted during period from 31.12.1997 to 30.6.2001. Even though the cadre strength of Assistant Excise Inspector is 82, 317 vacancies were arose due to retirement and promotions. It is relevant to note that the promotee Preventive Officer would get normally a shorter period on the promoted post of Assistant Excise Inspector. Most of them will retire within a few months W.P.(C) No.6036/10 & conn.cases :13 : from the date of promotion. Out of the above 317 Assistant Excise Inspectors only 4 directly recruited Preventive Officers were promoted as Assistant Excise Inspectors as per order dated 11.3.1998. A photo copy of the above order dated 11.3.1998 is produced herewith and marked as Ext.R3(c) In Ext.R3(c) serial numbers 3 to 6 were directly recruited Preventive Officers. A total number of 149 Excise Preventive Officers were promoted as Assistant Excise Inspectors from 1.7.2001 to 1.1.2003. Out of the above 149 Preventive Officers were promoted as Assistant Excise Inspectors, 111 persons are Excise Preventive Officers directly recruited from the rank list published on 31.12.1997 and the remaining persons are promotees. Out of the above 111 directly recruited Preventive Officers the 80 directly recruited Preventive Officers were promoted during the period from 1.7.2001 to 1.5.2002 and to that vacancies 80 excess Preventive Officers were accommodated. The above promotions were effected strictly in accordance with seniority in the category of Excise Preventive Officers. The rank and seniority reflected in Ext.R3(a) was the criteria for making promotion to the category of Assistant Excise Inspectors. A photocopy of the order dated 1.12.2001 is produced herewith and marked as Ext.R3(d). From Ext.R3(d) it can be seen that a total number of 59 Excise Preventive Officers are promoted as Assistant Excise Inspectors as per order dated 1.12.2001. Another 34 Preventive Officers were promoted as per order dated 27.12.2002. A photocopy of the above order dated 27.12.2002 is produced herewith and marked as Ext.R3(e). AS per order dated 1.1.2003 a total number of 56 Preventive Officers were promoted as Assistant Excise Inspectors. A photocopy of the same is produced herewith and marked as Ext.R3(f). Out of the above 149 Assistant Excise Inspectors, 38 Assistant Excise Inspectors are promotees and 111 Officers are directly recruited Preventive Officers. Some of the persons got promotion as per Ext.R3(d) to (f) are assigned earlier date of promotion consequent on the revision of seniority in Ext.R3(a) and pushing down of seniority of Preventive Officers. Ext.R3(c) to Ext.R3(f) Promotion orders were not challenged from any quarter and those promotions were become final and conclusive and W.P.(C) No.6036/10 & conn.cases :14 : further promotions also were made based on the promotions granted to the incumbents as per Ext.R3(c) to R3(f). It is submitted that without successfully challenging the orders of promotion granted to the Excise Preventive Officers as per Ext.R3(c) to R3(f), the consequent regularization of Excise Preventive Officers in the promotion vacancies cannot be collaterally challenged. It is submitted that all the Excise Preventive Officers who were continuing in the supernumerary post were accommodated against the vacancies on account of the creation of posts and promotion of incumbents as per Ext.R3(d) to R3(f). It is submitted that at present there is no challenge against Ext.R3(a) and the assignment seniority of Excise Preventive Officers in Ext.R3 (a) and their regularization in the promoted vacancies cannot be successfully challenged without challenging the seniority list of Excise Preventive Officers. The petitioners have no case that the regularization of Excise Preventive Officers in Ext.R3(a) is not correct. The petitioners also have no case that the promotions ordered as per Ext.R3(c) to R3(f) are irregular or illegal. The above orders were not challenged by the petitioners and therefore they cannot successfully challenge the regularization of Excise Preventive Officers, who were holding supernumerary posts against the vacancies arose consequent on the promotions ordered as per Ext.R3 (d) to R3(f). It is submitted that it is well settled that the reliefs must be confined to the pleadings and no relief can be granted outside the scope of the Writ Petition. It is also well settled that the list has to be decided based on the pleadings raised in the Writ Petition. It is submitted that no such pleadings are raised in the Writ Petition.” 15. From the above pleadings, what has to be decided at first is whether, vacancies were available in the direct recruitment quota to report vacancies to the PSC to initiate recruitment process and to advise 158 candidates for appointment to the post of Excise W.P.(C) No.6036/10 & conn.cases :15 : Preventive Officers. Admittedly, when candidates were advised and appointed from the ranked list published on 31.12.1997 there were 82 excess appointees in the direct recruitment quota. In view of the judgment of this court in Seethilal's case these excess 82 appointees were to be retained as supernumeraries till absorbed in the subsequent vacancies arising in the direct recruitment quota. So long as those persons remained as supernumeraries, there could not have been any regular vacancy in the direct recruitment quota to be reported to the PSC. However, facts pleaded in the two affidavits filed by the respondents, which are not controverted by any reply affidavit filed by the petitioners, show that these excess appointees have been accommodated against the vacancies of Excise Preventive Officers, which arose in the direct recruitment quota, on or after 1.1.2001. Neither Ext.R3(a) seniority list drawn on that basis, nor Ext.R3(c) to (f), produced along with the additional counter affidavit were challenged by anyone at any point of time. The averment that 145 vacancies arose in the direct recruitment quota consequent on the promotion of Excise Preventive Officers to W.P.(C) No.6036/10 & conn.cases :16 : the post of Assistant Excise Inspectors, that 13 more vacancies arose when 53 posts of Excise Preventive Officers were additionally created by GO(Ms) No.126/2006/TD dated 8.9.2004 are also not controverted by any reply affidavit or other materials. Therefore, on 11/7/2006, when vacancies were reported, 145 vacancies were available in the direct recruitment quota and consequent on the Government Order dated 6.12.2006, creating 53 posts, 13 more vacancies arose in the direct recruitment quota, which were also reported on 12.11.2007. This being the factual position established by the respondents, petitioners cannot dispute the existence of 145 vacancies or the additional 13 more vacancies. If that be so, there cannot be any illegality in reporting these 158 vacancies or advising candidates from the ranked list. Therefore the contention raised by the petitioners in these writ petitions regarding the non- availability of vacancies in the direct recruitment quota is absolutely misconceived and is only to be rejected and I do so. 16. Petitioners in WP(c).No.30506/09 are Kerala State Excise Staff Association, Kottayam District Committee as an Excise Guard. W.P.(C) No.6036/10 & conn.cases :17 : This writ petition, like the other writ petitions, is filed without impleading any of the direct recruits or any of those included in the ranked list published on 19.3.2010. In addition to a prayer to direct the respondents not to make any appointment of direct recruit Excise Preventive Officers in excess of 25% quota, they are also seeking a writ of mandamus directing the respondents to rectify the mistakes and illegality in Ext.P7 seniority list and to declare that as the present strength of direct recruits is far in excess of their quota no further appointment can be made. 17. As far as the vacancy position canvassed in this writ petition is concerned, that issue is already held against the petitioners. In so far as the prayer for rectification of mistake in Ext.P7 seniority list is concerned, the seniority list is Ext.R3(a) in WP (c).No.6036/2010. First of all this plea of the petitioners cannot be considered for the reason that none who are likely to be affected by such rectification of the seniority list has been impleaded as parties to this writ petition. Further there is no prayer to quash the seniority list. That apart, if the declaration about the vacancy W.P.(C) No.6036/10 & conn.cases :18 : position is granted that will also