IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 25TH FEBRUARY 2009 / 6TH PHALGUNA 1930 OP.No. 34203 of 2002(V) ---------------------------------- PETITIONERS: --------------------- 1. B.P.ANIL KUMAR, PREVENTIVE OFFICER, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM. 2. C.M.ALEXANDER, PREVENTIVE OFFICER, EXCISE CIRCLE OFFICER, EXCISE CIRCLE OFFICE, THIROORANGADI 3. K.S.SUNIL KUMAR, PREVENTIVE OFFICER, EXCISE RANGE OFFICE, PONNANI. BY ADVS. MR.S.P.ARAVINDAKSHAN PILLAY, SMT.N.SANTHA, MR.V.VARGHESE, SMT.RESMI G. NAIR. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. COMMISSIONER OF EXCISE, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM. 3. JOINT EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM. 4. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, OFFICE OF THE KERALA PUBLIC SERVICE COMMISSION, PATTOM P.O., THIRUVANANTHAPURAM-4 O.P. NO. 34203/2002-V: 5. K.SASIDHARAN, EXCISE PREVENTIVE OFFICER, EXCISE CHECK POST, AMARAVILA, THIRUVANANTHAPURAM DISTRICT. 6. R.SREENIVASAN, EXCISE PREVENTIVE OFFICER, EXCISE RANGE OFFICE, ETTUMANOOR. R1 TO R3 BY GOVT. PLEADER MR. P. NANDAKUMAR, R4 BY ADV. MR.ALEXANDER THOMAS, SC,KPSC. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 15/01/2009, ALONG WITH W.P.(C). NO.23362/2008 AND CONNECTED CASES, THE COURT ON 25/02/2009 DELIVERED THE FOLLOWING: O.P. NO. 34203/2002-V: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ADVICE MEMO ISSUED TO THE P.1. BY THE PSC DTD. 23/10/1998. EXT.P.2: COPY OF THE ADVICE MEMO ISSUED TO THE P.2. BY THE PSC DTD. 23/10/1998. EXT.P.3: COPY OF THE ADVICE MEMO ISSUED TO THE P.3. BY THE PSC DTD. 17/12/1998. EXT.P.4: COPY OF THE PROCEEDINGS NO. XD1-8525/2000 DTD. 08/12/2000 OF THE EXCISE COMMISSIONER. EXT.P.4.A: COPY OF THE RELEVANT EXTRACT OF THE APPENDED SENIORITY LIST OF PREVENTIVE OFFICERS FOR THE PERIOD FROM 01/01/95 TO 31/12/98. EXT.P.5: COPY OF THE ORDER NO. XD3-4538/2002 DTD. 08/08/02 OF THE R.3. EXT.P.6: COPY OF THE OBJECTION FILED BY THE P.1. BEFORE THE R.3. DTD. 05/09/02. EXT.P.7: COPY OF THE OBJECTION FILED BY THE P.2. BEFORE THE R.3. DT. 04/09/02. EXT.P.8: COPY OF THE ORDER NO. XD3-4538/2002 DT. 04/10/02 OF THE R.2. EXT.P.8.A: COPY OF THE RELEVANT EXTRACT OF THE APPENDED SENIROITY LIST OF PREVENTIVE OFFICERS FROM 02/02/1993 TO 31/12/1998. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - O.P.No.34203/2002-V & W.P.(C) Nos. 5929/08-E, 5935/08-F, 5950/08-G, 5998/08-L, 6045/08-T, 7348/08-Y, 23362/08-F & 30902/08-D - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of February, 2009. JUDGMENT O.P.No.34203/2002 & W.P.(C) Nos. 5929/08, 5935/08, 5950/08, 5998/08, 6045/08, 23362/08 & 30902/08 In all these writ petitions, the challenge is against the order passed by the Government dated 13.2.2008 adopting the principle for fixing seniority between directly recruited Preventive Officers as well as the promotee category in the Excise Department. Once again, the perennial dispute between direct recruits and promotees has arisen for adjudication. The documents and other details are referred to herein as contained in Writ Petition No.6045/2008. 2. Shortly stated, the bare facts necessary for the disposal of the cases are the following: The Special Rules, viz. Kerala Excise and Prohibition Subordinate Service Rules was issued as per G.O.(P) No.112/74/TD dated 9.9.1974. The method of appointment prescribed for the category of Excise Preventive Officers is: (i) direct recruitment; and (ii) promotion from category (3) viz. Excise Guards. It is provided that every 4th substantive vacancy shall be filled or reserved to be filled by direct recruitment. OP 34203/2002, etc. 2 3. The Public Service Commission issued a notification on 19.12.1989 for direct recruitment to the post of Excise Preventive Officers.. All the petitioners were candidates appointed after the conduct of a written test, physical efficiency test and interview. The written test was held in the year 1993 and the physical test and interview were held in 1997. The rank list was published by the Public Service Commission on 31.12.1997 and candidates were advised for appointment in the year 1998. Exts.P1 and P2 are the advice memos issued by the Commission in respect of the petitioners. Similarly, the petitioners in other cases have also been advised. Pursuant to the said proceedings, they have been appointed in service and are continuing as such. 252 candidates were advised up to 28.1.1998 and appointed as Excise Preventive Officers. Some more candidates were advised in the year 1999 and altogether 293 candidates were appointed. 4. The whole issues turned upon the introduction of Note 3 to Rule 5 of Part II of Kerala State and Subordinate Service Rules, 1958 as G.O.(P) No.57/92/P & ARD dated 5.12.1992. The amendment came into force with effect from 2.2.1993. It reads as follows: “(3) 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 OP 34203/2002, etc. 3 post to which the recruitment/transfer is made and not to the vacancies existing at that time.” 5. The Apex Court in Prakash v. Kurien (1999 (2) KLT 710) held that Note 3 under Rule 5 applies to all Special Rules whenever a ratio or percentage is prescribed. Some Excise Guards in Alappuzha District filed O.P.No.27869/1999 claiming promotion as Preventive Officers on the basis of the ratio prescribed in the Special Rules. This court 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 existing vacancies. The said judgment is reported in 2000 (2) KLT 475 (Seethilal v. State of Kerala.) This was confirmed in Writ Appeal No.1085/2000. The present disputes arose subsequent to these judgments. 6. In purported implementation of the above judgment, the Government directed the Excise Commissioner, as per Ext.P3 to implement the amended provisions of General Rules with effect from 2.2.1993. It was further directed that the Excise Commissioner will adopt the above date and work out the consequential impact on the seniority by taking various Court directions issued on the seniority lists prepared also into consideration and proposed creation of supplementary posts required at the level of Preventive Officers, Excise Inspectors, etc. so as to prevent reversion and OP 34203/2002, etc. 4 retrenchment. A further direction was issued by the Excise Commissioner as per Ext.P4 directing all Assistant Excise Commissioners to recast the seniority lists of Preventive Officers with effect from 2.2.1993. 7. By Ext.P7 dated 20.1.1996 a final seniority list of Excise Preventive Officers for the period from 9.9.1974 to 31.12.1994 was published. 1296 names have been included in Ext.P7(a), out of which serial Nos.1157 is up to 2.2.1993. By Ext.P8, in accordance with the direction in Exts.P3 and P4, a revised seniority list for the period from 2.2.1993 to 31.12.1998 was prepared and published. It was observed that the posts available for direct recruitment were 210 and 8 directly recruited persons were only in service and therefore, out of 252 candidates advised in 1998, only 202 could be accommodated against the cadre strength. Some of the Preventive Officers whose names were not included in the final seniority list, filed O.P.No.32113/2002. Later, by Ext.P9 the Government ordered that the excess directly recruited Preventive Officers in the Excise Department will be treated as holding supernumerary posts till the respective date of accommodating them in the subsequent vacancies strictly adhering to the cadre strength. Later, some of the directly recruited Excise Preventive Officers who were accommodated against supernumerary posts filed representations to the first respondent requesting to assign them OP 34203/2002, etc. 5 seniority as per Rule 27(c) of KS & SSR. This court by judgment dated 7.12.2005 in Writ Petition No.34002/2005 directed the Government to consider the representation and to take a decision within one month. By Ext.P10 order dated 4.4.2006 the Government ordered to assign seniority to directly recruited Preventive Officers on their respective dates of advice by the Public Service Commission and to give seniority to sufficient number of promotee Preventive Officers on the same advice date below the direct recruits in order to adhere to cadre strength ratio. The second respondent was directed to revise the seniority list of Excise Preventive Officers from 2.2.1993 on the above terms. It was also stated that out of 293 candidates directly recruited during 1998 and 1999, 85 are in excess of the quota. 8. According to the petitioners, this order was a just and equitable one. But some of the promotees challenged Ext.P10 before this court. By common judgment, Ext.P11, this court interfered with Ext.P10 on the sole ground that the order was passed without hearing any of the promotees. Even though this was challenged in Writ Appeal No.1517/2007 and connected cases, the Division Bench also directed the matter to be heard afresh after considering the contentions on either side. Ext.P13 is the subsequent notice issued by the Government intimating the hearing schedule and Ext.P14 is the explanation offered by the direct recruits. OP 34203/2002, etc. 6 9. Ext.P15 is the order that was passed by the Government after hearing the parties, wherein the method adopted in Ext.P10 was varied. It was directed that the directly recruited Excise Preventive Officers in the Excise Department will be treated as holding supernumerary posts till the respective dates of accommodating them in the substantive vacancies strictly adhering to the cadre strength. They will be positioned in the seniority list only in accordance with the occurrence of substantive vacancies due to them under the direct recruitment quota. 10. Various contentions have been raised by both sides who have relied upon a number of decisions of this court and that of the Apex Court in support of their pleas. Relevant provisions of KS & SSR have also been relied upon to bolster upon the respective arguments. 11. On behalf of the petitioners, the arguments were addressed by learned counsel Shri N. Sugathan, Shri S.P. Aravindakshan Pillai, Shri Elvin Peter, Shri P.C. Sasidharan, learned Senior Counsel Shri K. Ramakumar, Shri C.S. Manu, Shri Kodoth Sreedharan and Shri Vakkam N. Vijayan and for the respondents, I have heard learned Senior Counsel Shri K.R.B. Kaimal, learned Senior Counsel Shri V. Chitambaresh, learned counsel Shri Jaju Babu, Shri Kaleeswaram Raj, and Shri S. Easwaran. On behalf of the Government, Shri P. Nandakumar (Senior Government Pleader) addressed OP 34203/2002, etc. 7 the arguments in support of Ext.P15 and the principles adopted therein. Learned Standing Counsel Shri Alexander Thomas appeared for the Kerala Public Service Commission. 12. In a nutshell, the contentions raised by the petitioners are the following: The course taken by the Government in purported implementation of the judgment in Seethilal's case (2000 (2) KLT 475) is not one envisaged by the directions in the judgment. The appointment of the petitioners or of any direct recruitees were never under challenge. The writ petition therein concerned only with Alappuzha District and the recruitment being a district-wise one, no other writ petitions were there challenging the recruitment made in other districts also. What was directed by this court was only to follow the ratio in respect of the further promotion. In Writ Appeal No.1815/2000 from the said judgment (produced as Ext.P3 in Writ Petition No.5929/2008), after recording the statement filed by the Government, the Bench observed that the Government is not taking steps to disturb the appointment already effected to the post of Excise Preventive Officers. It is pointed out that in the Writ Appeal judgment or even in the judgment of the Apex Court from the said judgment (Prasad Kurien v. Augustin – 2008 (2) KLT 533 (SC) also nothing adverse is there in regard to the appointments and there was no OP 34203/2002, etc. 8 direction to refix the seniority. Learned counsel for the petitioners mainly rely upon Rule 27(c) of KS & SSR to contend that the directly recruited Preventive Officers are entitled to count seniority from the respective dates of advice. Rule 27(c) being the only provision concerning fixation of seniority, no other method can be employed to fix the seniority of directly recruited Excise Preventive Officers. It is further contended that they were appointed pursuant to a selection process initiated by the Public Service Commission in permanent posts and mere application of the quota rule cannot at all be taken as to affect the appointments. Since they have been appointed to substantive vacancies, there cannot be any challenge to their seniority. It is further contended that merely because the Government have directed the Excise Preventive Officers to accommodate them in supernumerary posts, that cannot affect the seniority at all. Reliance is placed on Rule 69 of the Kerala Financial Code Vol. I in this regard. As the appointments were not in violation of any rules, it cannot be contended that excess direct recruits should be pushed down in the seniority list, especially since they are continuing in service without any brake. 13. It was also contended that Note 3 to Rule 5 has effect only with effect from 2.2.1993 and till then the ratio has to be applied as provided in the Special Rules and accordingly, every fourth substantive vacancy shall OP 34203/2002, etc. 9 be filled or reserved to be filled by direct recruitment. It is also contended that no effort was taken to identify the posts thus available to direct recruits. In Ground 'C' of Writ Petition NO.6045/2008 the petitioners contend that for the period from 9.9.1974 to 1.2.1993 the number of substantive vacancies was 1157. The 1/4th of those vacancies available for direct recruitment for that period was 289. There were only 118 direct recruits in the seniority list. Among them more than 30 were promoted before 2.2.1993. So out of the candidates advised in 1998 for direct recruitment 202 candidates should have been adjusted against the substantive vacancies which were available for direct recruitment prior to 2.2.1993. Reliance is also placed on Rule 2(12) of the General Rules. 14. The respondents contend that going by Note 3 to Rule 5 which has application from 2.2.1993, when the quota is applied to the cadre strength, the direct recruits who have become excess, have no right to get appointment. Therefore, their appointment is against the relevant statutory rules and if that is so, they cannot be considered to have been duly appointed and consequently they cannot have any claim for seniority based on such appointment. The principles that are governed by Rule 27(c) of KS & SSR will not, therefore, apply. Reliance is also placed on Rule 5 to contend that a person shall be recruited direct only against a substantive OP 34203/2002, etc. 10 vacancy in such permanent cadre and herein, there were no substantive vacancies as far as the excess direct recruits are concerned. 15. They further argue that it is well settled by various decisions of this court and that of the Apex Court that whenever a ratio is fixed and promotions are effected in excess of the quota, such candidates will be pushed down and the said principle should be adopted in respect of the direct recruits who obtained appointment in excess of their quota. There cannot be any exception to apply the very same principle merely because, the appointment is by direct recruitment. It is also contended that the performance of duties based on an irregular appointment will not give them a right to get seniority. Rule 27(c) will have application only under normal circumstances and the non-obstante clause therein will not exclude other provisions of the General Rules or that of the Special Rules. At any rate, the retention of excess direct recruits is only by way of a concession, as otherwise they would have been ordered to be retrenched. The adjustment in supernumerary posts will not at any rate, allow them any claim for seniority. 16. The following decisions have been relied upon by either side in support of their case. “N.K.Chauhan and others v. State of Gujarat and others - AIR 1977 SC 251, V.B. Badmi etc. v. State of Mysore and others - AIR OP 34203/2002, etc. 11 1980 SC 1561, Sonal Sihimappa v. State of Karnataka and others – AIR 1987 SC 2359, Latheefa Beevi v. State of Kerala, - 1987 (2) KLT 41, G.C. Gupta and others v. N.K. Pandey and others - AIR 1988 SC 268, Direct Recruit Class II Egineering Officers' Association v. State of Maharashtra and others - (1990) 2 SCC 715, S.D. Raghunandan Singh v. State of Karnataka and others - AIR 1994 SC 1693, State of Kerala and others v. P.K.Satheesh and others - 1994 (2) KLJ 1041, S.S. Bola and others v. B.D. Sardana and others - (1997) 8 SCC 522, Velappan v. State of Kerala (ILR 1997 (2) Ker. 441), Vijaya Kumar Shrotriya v. State of U.P. & others (JT 1998 (1) SC 692), Prakash v. Kurien (1999 (2) KLT 71), Union of India and another v. International Trading Co. and another – (2003 ) 5 SCC 437, Sanjay K. Sinha-II and others v. State of Bihar and others - (2004) 10 SCC 734, Premanand v. Mohan Koikal - 2006 (3) KLT 103, K. Madalaimuthu and another v. State of Tamil Nadu and others - CDJ 2006 SC 495, State of Uttaranchal and another v. Dinesh Kumar Sharma - (2007) 1 SCC 683, Sreekala v. State of Kerala - 2007 (1) KLT 903, Prasad Kurien v. Augustin - 2008 (2) KLT 533 and Achutan v. Director General of Police - 2008 (2) KLT 655. 17. Before considering various contentions, it would be of advantage here to refer to the principles laid down by a Constitution Bench of the Apex Court in the landmark judgment in Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra and others {(1990) 2 SCC 715}. In para 47 their Lordships summed up the legal position thus: OP 34203/2002, etc. 12 “(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted. © When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly. (D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down. (E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date. (F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that OP 34203/2002, etc. 13 there was such relaxation when there is a deviation from the quota rule. (G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject. (H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instruction has ceased to remain operative. (I) The posts held by the permanent Deputy Engineers as well as the officiating Deputy Engineers under the State of Maharashtra belonged to the single cadre of Deputy Engineers. (J) The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than scrutinised for finding out any possible error. It is not in the interest of Service to unsettle a settled position.” 18. Herein, admittedly the dispute arose after the judgment in Seethilal's case (2000 (2) KLT 475). Therefore, before adverting to the rival contentions, I may refer to the scope and effect of the said judgment, the judgment in the Writ Appeal and that of the Apex Court. Such an exercise is necessary since both sides have elaborately attempted to interpret the said decision in support of their contentions. 19. Therein, the petitioners were Excise Guards in Alappuzha District. Their contentions were based on Note 3 to Rule 5 of KS & SSR to the effect that after such Note was introduced, the ratio for direct OP 34203/2002, etc. 14 recruitment and promotion has to be applied on the total number of posts for the category and not on the number of vacancies. The total number of posts in the category of Preventive Officers in Alappuzha Excise Division was 61 and the sanctioned strength as on 31.12.1994 was 57. Thus, the quota for direct recruitment can only be 15 and as against this, there are 20 direct recruitment in the cadre of Excise Preventive Officers creating an excess of five. Therefore, they challenged any further direct recruitment of Excise Preventive Officers in Alappuzha Division. After holding that the fixed ratio or percentage must be applied to the cadre strength of the posts and not according to the vacancies existing, following the dictum laid down in Prakash v. Kurien (1999 (2) KLT 71), the writ petition was disposed of in the following terms: “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 existing vacancies. The respondents are directed to effect the promotions to the cadre of Preventive Officers following the observations made in this judgment.” Going by the judgment, this court has only directed to effect promotions in the cadre of Preventive Officers. There was no direction to discharge or terminate any direct recruit Preventive Officers holding any excess post. OP 34203/2002, etc. 15 None of them were parties therein also. Therefore, it can be safely concluded that the appointments already made were untouched and there was no direction to review the appointments already made to find out any excess appointees by way of direct recruitment. 20. The judgment of the Division Bench in the Writ Appeal (Ext.P3 in Writ Petition NO.5929/2008) will support the above conclusion. In para 2 of the judgment, the statement filed on behalf of respondents 6 and 7 (Commissioner of Excise and Asst. Commissioner of Excise, Alappuzha) is seen extracted. The statement refers to a proposal to amend the Special Rules substituting every fourth vacancy to 25% of the cadre strength. It was also stated that 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. The Division Bench disposed of the Writ Appeal by observing thus: “Under such circumstances, we notice that the Government is not taking steps to disturb the appointment already effected to the post of Excise Preventive Officers. The 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.” OP 34203/2002, etc. 16 Ext.P4 in Writ Petition No.5929/2008 is the order passed in R.P.No.590/2000. While disposing of the review petition, their lordships made the following clarification: “We make it clear that the statement recorded will