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CASE NO.: Appeal (civil)  122 of 2002

PETITIONER: Prasad Kurien & Ors

RESPONDENT: K.J.Augustin  & Ors

DATE OF JUDGMENT: 19/02/2008

BENCH: A.K.MATHUR & B.SUDERSHAN REDDY

JUDGMENT: J U D G M E N T  

CIVIL APPEAL NO.122 OF 2002 WITH Civil Appeal No.833 of 2002, Civil Appeal No.5663 of 2002, Civil Appeal No.6478 of 2002, Civil Appeal No.1776 of 2007, Civil Appeal No.1847 of 2007, Civil Appeal No.1848 of 2007 & Civil Appeal No.1849 of 2007.

A.K.MATHUR,J.          1.      In all these appeals, identical questions of law are involved,  therefore, they are disposed of by this common order. For the  convenient disposal of these appeals, the facts given in C.A.No.5663  of 2002 (A.K.Narayanan Kutty & Ors. V. State of Kerala & Ors.) are  taken into consideration.

2.              The common facts in this batch of petitions is that the Pu* blic Service Commission started the process of recruitment of 40  direct recruits to the cadre of Excise Inspectors in the year 1988 and  the applications were called for in 1989 and the select list was  published on 12.6.1992. Note 3 was added to Rule 5 of the Kerala  State and Subordinate Services Rules, 1958 (hereinafter to be  referred to as the ’Rules of 1958’) on 5.12.1992.  Writ petitions were  filed claiming that direct recruitment can be made only for 10 posts  and not for 40 posts and recruiting 40 persons directly would  adversely affect the claim of promotion of the appellants and similarly  situated. The writ petitioners claimed that they were entitled to a writ  of mandamus directing the respondents to make appointments only in  accordance with the ratio fixed under the Special Rules for direct  recruitment  and promotees and  further prayed that the State of  Kerala be directed to report all the vacancies  of Excise Inspectors  including those occupied by the promotees to the Kerala  Public  Service Commission ( hereinafter to be referred to as the’  Commission’) for filling up the vacancies in accordance with the  Rules. The service conditions of the Excise Inspectors are governed  by the Special Rules for the Kerala Excise and Prohibition  Subordinate Service Rules, 1974 (hereinafter to be referred to as the  ’Rules of 1974’).  These Rules have been framed in exercise of  power conferred by sub-section (1) of Section 2 of the Kerala Public  Services Act, 1968 (hereinafter to be referred to as the ’Act of 1968’)  read with Section 3 thereof and in supersession of all the existing  rules and orders on the subject. Therefore, these Rules of 1974 came  to be framed under the purported exercise of the Act of 1968. The  constitution of the service so far as  the following  categories of  Officers namely; (1) Excise Inspectors, (1A) Assistant Excise  Inspectors, (2) Excise Preventive Officers, (3) Excise Guards and (4)  Drivers is governed  by these Rules.  The method of appointment as

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Excise Inspector is by  direct recruitment or by promotion from  category (1A) and recruitment by transfer from among Upper Division  Clerks  employed in the Excise Department and it further provided  that every fourth vacancy in the category shall be filled or reserved to  be filled by direct recruitment. It is this provision which is relevant for  our purpose. The promotion of Excise Preventive Officers is from the  post of Excise Guards and there also the ratio is 1: 3 between the  graduates and non-graduates. Here also  the promotion is by way of  direct recruitment or by promotion from category (3) and a further  provisio is added that  every fourth vacancy in the category shall be  filled or reserved to be filled by direct recruitment. The whole litigation   started by one Excise  Preventive  Officer for promotion to the post of  Excise Inspector challenging the direct recruitment. In that writ  petition  his contention was that direct recruitment should be confined  to 25 per cent of the cadre strength only in view of Note 3 to Rule 5 of  the Rules of 1958 and the direct recruitment  beyond that percentage  would adversely affect the claim of the promotees. Learned Single  Judge allowed the original petition and gave a declaration that the  direct recruitment to the cadre of Excise Preventive Officer must be  confined to the ratio  as applicable to the cadre strength and not to  the existing vacancies.  Learned Single Judge followed the dictum  laid down by this Court in S.Prakash & Anr. V. K.M.Kurian & Ors.  [(1999) 5 SCC 624]. It was contended before the Division Bench that  the Excise Rules are different from the Kerala Agricultural  Income  Tax  and Sales Rules which was the subject matter before this Court   and therefore, this case was sought to be distinguished and it was  contended that  no percentage was fixed i.e. as in the present case   fourth substantive vacancy should be filled or reserved to be filled by  direct recruitment. The Division Bench held that every fourth  substantive vacancy shall be filled or reserved to be filled by direct  recruitment itself meaning thereby 25 percent of the posts are to be  reserved to be filled up by direct recruits  and no different meaning  could be attributed to the Special Rules and therefore, the dictum laid  down in S. Prakash & Anr. (supra)  was followed and all the three  contentions were dismissed by the Division Bench of the High Court.   Aggrieved against this number of petitions were filed from time to  time before this Court. However, we are concerned with the legal  submission made by Mr.P.S.Patwalia, learned senior counsel  and  others  that the Excise Rules are special Rules and they will prevail  and not the general Rules, known as Kerala State and Subordinate  Services Rules, 1958 and the Note 3 appended to Rule 5 of these  general Rules.  

3.      Mr.Patwalia, learned senior counsel for the appellants took us  through the Special Rules for the Kerala Excise and Prohibition  Subordinate Service Rules, 1974 and also the Kerala State and  Subordinate Services Rules, 1958 and submitted that  the Excise  Rules of 1974 were framed under the Act of 1968,  when the Act had  been framed  by the State Legislature then the Rules framed under  proviso to Article 309 of the Constitution cannot hold the field and the  Rules which have been framed under the Act passed by the State  Legislature  shall prevail. It was contended that the Rules of 1958  were framed under proviso to Article 309  of the Constitution and  therefore, they will not govern the service conditions of the appellants   and the Rules of 1974 which have been framed in exercise of power  under the Act of 1968 will hold the field. As per the Rules of 1974  every fourth vacancy is to be filed by direct recruitment. Therefore, it  was contended that every fourth vacancy in the cadre of Excise  Inspectors  or Excise Preventive Officers has to be filled up by the  direct recruitment.  Learned senior counsel for the  appellants  submitted that every fourth vacancy should be construed as  appearing in the Rules of 1974, meaning thereby  as and when  the  recruitment to the post of Excise Inspectors and Excise Preventive  Officers is held, the fourth vacancy should go to the direct  quota and  the remaining vacancies should be filed up by promotion.  

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Mr.Patwalia tried to distinguish the decision in  S.Prakash & Anr.  (supra)  that the recruitment made under the Rules  to the post of  Sales Tax  Officer  in the case of S.Prakash *& Anr. (supra)  was  governed by different Service Rules and that judgment cannot hold  good so far as these Special Rules are concerned.

4.              However,  in order to understand the controversy involved  in the matter, it will be necessary to refer to various Rules which have  been framed by the State of Kerala from time to time.  Under proviso  to Article 309 of the Constitution, the State Government has power to  frame Rules  till the State Legislature passes the Act. Article 309 of  the Constitution reads as under:

               " 309. Recruitment and conditions of  service of persons serving the Union or a  State. -  Subject to the provisions  of this  Constitution, Acts  of the appropriate Legislature   may regulate the recruitment, and conditions  of  service of persons appointed, to public services  and posts in connection with the affairs  of the  Union or of any State :                 Provided  that it shall be competent for the  President or such person as he may direct in the  case of services and posts in connection with the  affairs of the Union, and for the Governor of a  State or such person as he may direct in the case  of services and posts in connection with the affairs  of the State, to make rules regulating  the  recruitment, and the conditions of service of  persons appointed, to such services and posts  until provision in that behalf is made by or under an  Act of the appropriate Legislature under this article,  and any rules so made shall have effect subject to  the provisions of any such Act."

Under purported  exercise of power under Article 309 of the  Constitution, the State Government framed an Act known as the  Kerala Public Services Act, 1968. The preamble of the Act reads as  under:

               " Preamble.- Whereas  it is considered  necessary that the recruitment, and conditions of  service of persons appointed, to public services  and posts  in connection with the affairs of the  State of Kerala should be regulated by an Act of  the Kerala State Legislature;                 Be it enacted in the Nineteenth Year of the  Republic of India as follows:- 1.      Short title and commencement.-   This Act may be called the Kerala  Public Services Act, 1968."

Section 2 lays down that the Government may make rules either  prospectively or retrospectively to regulate the recruitment, and  conditions of service of persons appointed, to public services and  posts in connection with the affairs of the State of Kerala.  Section 3   provides continuance of existing Rules framed by State under proviso  to Article 309 which is relevant for our purpose reads as under :

       " 3. Continuance  of existing rules.- All rules  made under the proviso to article 309 of the  Constitution of India, regulating the recruitment,  and conditions of service of persons appointed, to  public services and posts in connection with the  affairs of the State of Kerala and in force

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immediately before the 17th September, 1968, shall  be deemed to have been made under this Act and  shall continue to be in force unless and until  they  are superseded by rules made under this Act."

Therefore, now all the Rules under this Act will have to be framed by     State. So long as State Legislature does not pass the Act,  State can  frame rules under proviso to Article 309 of the Constitution. But the  moment the State Government frames an Act then the power of the  State Government to frame the Rules under provisions to Article 309  of  the Constitution comes to  an end.  But one thing may be noted  here that  by virtue of Section 3 all the Rules which have been framed  under proviso to Article 309 of the Constitution regulating the  recruitment, and conditions of service of persons appointed to public   services and posts in connection with the affairs of the State of Kerala    were deemed to have been made under these Rules.  The result of  this is that all the Rules which had been framed by the State of Kerala  under proviso to Article  309 of the Constitution have been saved and  they are continued and deemed to continue under the Act of 1968.  The general Rules which were in existence   governing the service  conditions  of persons appointed, to public services and posts in  connection with the affairs of the State of Kerala i.e. the Kerala State  and Subordinate Services Rules, 1958 shall be deemed to have been  issued under this Act by legal fiction.  These  were the rules of  general governance  which used to apply to all the services & post  under the State of Kerala. They were of general applications. Rule 2  which is of general rules laid down that these rules will govern all  holder of posts whether temporary or permanent under the State. It  further  lays down that the special rule shall govern the special  services and these Rules i.e. the general rules will only govern to the  extent that they are not inconsistent with the special Rules. Rule 2  reads as under:

               " 2.    Relation to the Special Rules.- If  any provision in the general rules contained in the  Part is repugnant to a  provision in the Special  Rules applicable to any particular service  contained in Part III, the latter shall, in respect of  that service, prevail over the provision in the  general rules in this part."

Rule 5 which deals  with the method of recruitment reads as under:

               " 5. Method of recruitment.- Where the  normal method of recruitment to any service,  class or category is neither solely by direct  recruitment nor solely by transfer, but is both by  direct recruitment and by transfer- (a)     the proportion or order in which the  Special Rules concerned may require   vacancies to be filled by persons recruited   direct and b those recruited by transfer shall be  applicable only to substantive vacancies in the  permanent cadre; (b)     a person shall be recruited direct only  against a substantive vacancy in such  permanent cadre, and only if the vacancy is one  which should be filled by a direct recruit under  the Special Rules referred to in clause (a); and (c)     recruitment to all other vacancies shall be  made by transfer. [ Note .- (1)  All permanent vacancies and  temporary vacancies except those of short  duration shall be treated as substantive  vacancies.

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(2)     Leave vacancies and vacancies of  less than 6 months’ duration shall be treated as  vacancies of short duration] [ (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 post to which the  recruitment/ transfer is made and not to the  vacancies existing at that time.]

Rule 5 says that normal method of recruitment to any service, class  or category is neither solely by direct recruitment nor solely by  transfer, but is both by  direct recruitment and by transfer and the  proportion can be laid down by the special Rules which is normally  reflected from Rule 5 (a). Rule 5(b) further  provides  that a person  shall be recruited direct only against a substantive vacancy in such  permanent cadre, and only if the vacancy is one which should be  filled by a direct recruit under the Special Rules referred to in clause  (a) and it is provided in clause (c) of Rule 5 that recruitment to all  other vacancies shall be made by transfer.  But Note.-(3) further says  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 meaning thereby  in order to decide  the proportion the entire cadre strength of the service has to be taken  into consideration and not the vacancies existing at that time.  Therefore, as per the schemes of the general Rules  it is provided  that what shall be the proportion between the direct recruit and  promotion or transfer that has to be laid down by the Special Rules  and at the time of recruitment one has to see  the proportion which is  to be maintained between the direct recruit and promotion or transfer  on the basis of the total cadre strength and not  to the vacancies  existing at that point of time.  To illustrate this point what it conveys is  that one has to see the cadre strength of the service and the  proportion laid down in the Special Rules and that  proportion has to  be maintained by taking the entire cadre strength into consideration  and not the vacancies.  Therefore, determination of the posts against  the direct recruit and promotion/ transfer  has to be made looking to  the cadre strength  of the service  and not looking to the vacancies  which are sought to be advertised. The Department has to  work out   the total cadre strength and  then work out if the ratio is 25 percent by   direct recruitment and 75 percent by promotion. Then they will take  into consideration whole cadre as to how many persons are already  working against direct recruitment quota and how many persons are  working against promotion quota and  thereafter they will take a  decision how much of vacancies will be advertised  for direct recruits  and how much of vacancies will be retained for promotion. It is not  correct to contend that ratio between direct and  promotion quota is   to be worked of the existing vacancies  de hors the cadre strength.

5.              Now, let us examine the Rules which govern  the service  conditions.  The recruitment and promotion to the post of Excise  Inspector and Excise Preventive Inspector  is  governed  by  the   Kerala Excise and Prohibition Subordinate Service Rules, 1974. Here  as mentioned above, the recruitment for the post of Excise Inspector  is governed by the provision which says that every fourth substantive  vacancy in the category shall be filled or reserved to be filled by direct  recruitment and likewise in the cadre of Excise Preventive Officers.   Rule 2 of the Rules of 1974 deals with the appointment of various  categories  and method of appointment which reads as under :

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       " 2. Appointment.- Appointment to the various categories shall  be made as follows:-         Category                                        Method of appointment (1)     (2) 1.      Excise Inspectors               (1)     Direct recruitment, or                                                 (2)     Promotion from category 1A                                                 (3)     Recruitment by transfer from among Upper Division  Clerks employed in the  Excise Department : Provided that every fourth  vacancy in the category  shall be filled or reserved  to be filled by direct  recruitment.

       Xx      xx      xx

Note 1:-  Ladies shall not be eligible to be  considered for  appointment to vacancies other than  in the Offices, Pharmaceuticals, Distilleries,  Breweries, Wineries and Bonded Warehouses  involving no outdoor work, in view of the arduous  and special nature  of the duties and responsibilities  attached to other posts.

Note 2:- For the purpose of appointments by  promotion and by transfer the category of Excise  Inspectors shall be a selection category.

1A.     Assistant Excise Inspectors.        Promotion from category 2.

Note:- Promotion from category 2 shall be made in  the ratio of 1 :3 between graduates and non- graduates.

Provided that no senior graduate shall  be  superseded by a junior non- graduate in implementing the ratio.

2.     Excise Preventive        (1)     Direct recruitment, or         Officers                        (2)     Promotion from Category 3.

Provided that every fourth substantive  vacancy shall be filled or reserved to be  filled by direct recruitment:

Provided further that the remaining  vacancies shall be filled by promotion  from among Excise Guards possessing  the minimum qualification of the  S.S.L.C. standard and those who do not  possess this qualification in the ratio of  1:1. 3.      Excise Guards           (i)  Recruitment by transfer from among  members of the Last Grade Service  employed in the Excise Department,  and                                          (ii) Direct recruitment.

Note :- (1)  Recruitment to the post by direct  recruitment     and by transfer shall be made by the  Kerala  Public Service Commission.

(2)   90 per cent of the vacancies shall be filled or

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reserved to be filled by direct recruitment and the  remaining 10  per cent of the vacancies shall be  filled by transfer from members of the Last Grade  Service employed in the Department, who possess  the required  qualification. In the absence of  qualified last grade employees in the Department  for such transfer  the vacancies shall be filled up by  direct recruitment.  

                       Xx              xx. "

Therefore, as per these Rules every fourth substantive vacancy  is to  be filled or reserved to be filled by direct recruitment.

6.              Mr.Patwalia, learned senior counsel for the appellants  along with other senior counsel submitted that every fourth vacancy  has to be filled up by direct recruitment de hors the cadre strength.  Mr.Patwalia submitted that Note (3) to Rule 5 of the General Rules   which is of general application cannot be made applicable to these  Special Rules. Learned senior counsel submitted that  these special  rules override the general rules and invoked the principle of   ’Generaliabus  speciali derogant ’ ( i.e. special things derogate from general  things). Learned senior counsel further submitted  that since the Act  of 1968 was promulgated by the State and these special Rules had  been framed in exercise of the power under sub-section (1) of  Section 2 of the Act of 1968 read with Section 3 superseding all  existing Rules, therefore, this proviso which is specially meant for  recruitment of these services will govern and not  the general rules  which was framed in exercise of proviso to Article 309 of the  Constitution.  In this connection, learned senior counsel  on the  principle of ’ special rules override the general rules’ invited our  attention to the following decisions of this Court,

(i)     [ (1985) 4 SCC 645] S.C.Jain v. State of Haryana & Anr.

(ii)    [(2002)6 SCC 127] Chandra Prakash Tiwari & Ors. V. Shakuntala Shukla & Ors.

(iii)   [(2003) 7 SCC 110] D.R.Yadav & Anr. V. R.K.Singh & Anr.                          and tried to distinguish the judgment of this Court in S.Prakash &  Anr.(supra). Learned senior counsel submitted that Note (3) to Rule 5  of the Rules of 1958  was framed under proviso to Article 309 of the  Constitution and that note cannot override the provisions of the  Special Rules as the same is repugnant  with that of the proviso to  Rule 2 of the Rules of 1974 as the Rules of 1974 were framed under  the Act of 1968, therefore these Rules will prevail and not the general  Rules. In this connection, learned senior counsel submitted that Rule  2 of the Rules of 1958  which contemplates that in case of special  Rules having been framed and if there are repugnant to that of  general Rules, these Special Rules will prevail. The argument of  learned senior counsel is very attractive but after deeper examination  of the matter, we find that the argument of learned senior counsel is  not sustainable because he has ignored the notification by which   Note (3) to Rule 5 was inserted in the Rules of 1958. It may be  relevant to  mention here that Rules of 1958 were also saved by  virtue of Section 3 of the Act of 1968 which clearly says that all the  Rules which had been framed under proviso to Article 309 of the  Constitution shall be deemed to have been framed  under the said  Act and Not (3) which was appended  to Rule 5 of the Rules of 1958

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was also framed under the purported exercise of power under  Section 2 of the Act  of 1968.  The notification by which this Note (3)  to Rule 5 of the Rules of 1958, was brought into force reads as under  :

               " S.R.O. No.194/93.- In exercise of the  powers conferred by sub-section (1) of section 2 of  the Kerala Public Services Act, 1968 ( 19 of 1968)   read with section 3 thereof, the Government of  Kerala hereby make the following rules further to  amend the Kerala State and Subordinate Services  Rules, 1958, namely:- 1.      Short title and commencement.- (a) These   rules may be called the Kerala State and  Subordinate Services (Amendment) Rules, 1992. 2.      Amendment of the Rules.- In Part II of the  Kerala State and Subordinate Services Rules,  1958, in rule 5 after Note "(2)" , the following Note  shall be added, namely:- " (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 post to which the recruitment/   transfer is made and not to the vacancies existing  at that time. " " By virtue of this amendment which has been brought out under the  Rules of 1958  it clearly transpires that this Note (3) was not framed  under the exercise of power under proviso to Article 309 of the  Constitution. In fact, learned senior counsel gave us an impression  during the course of argument  that this Note (3) has been framed in  exercise of power under proviso to Article 309 of the Constitution but   that impression is now removed after perusing the notification which  has been  issued under the Act of 1968.  Had that not been the  position, then perhaps  the argument of learned senior counsel for the  appellants would have survived but after going through the  notification it becomes absolutely clear that  Note (3) which was  inserted in  the Rules of 1958 in 1992 was subsequent to the Rules of  1974 and this notification is of 1992 i.e. subsequent in point of time  and this having been issued under the Act of 1968, therefore, the  Rules of 1958 which have already been deemed to have been made  under the Act of 1968 and the amendment which has been brought  out  by appending Note (3) is also under the Act of 1968. As such,   the argument of learned senior counsel cannot now survive.  The  Rules of 1958  are of general nature which clearly stipulates that  cadre strength has to be taken into consideration  for maintaining the  ratio in the Special Rules, meaning thereby these Rules which have  come into being in subsequent point of time under the Act of 1968,   will  hold the field and these rules are not repugnant to the Rules of  1974. The Rules of 1974 only laid down that every fourth substantive  vacancy shall be filled or reserved to be filled by direct recruitment  and now on reading of this Note (3)  along with the Rules of 1974  harmoniously  then it comes to,  at the time of determination of fourth  substantive vacancy one has to maintain the ratio or percentage  of  the cadre strength of the posts to which the recruitment is made and  not  to the existing vacancies at that time.  If we construe the whole  thing in this light and read the service rules in a harmonious manner,  then the desired result can be achieved.  If the interpretation which is  sought to be given by learned senior counsel for the appellants is to  be accepted, then it is likely to disturb the ratio in the cadre strength.  If every time  vacancy is to be filled up and in that fourth vacancy has  to go to the direct recruit then the proportion which is maintained  i.e.  25% and 75 %  is likely to be disturbed. A rough chart of the  vacancies  has been given to us from which it appears that as per the

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proviso that every fourth vacancy is to be filled up by direct  recruitment, then it appears that on the basis of the total cadre  strength as on 1.1.2008,  i.e. 310 and if 75 % is to go to promotees   and 25% to the direct recruits,  it appears that  there are already 105  promotee Officers existing in this cadre strength. The percentage of  promotee Excise Inspectors  as on date will be 34 % and number to  be reserved for direct recruitment as on date as per  the calculation  by the appellants, will be 205, then as on date the direct recruits will  become 66 %. If the contention of learned senior counsel for the   appellants is to be accepted, then naturally at every time when  vacancy arises, and the fourth vacancy is to be filled up by direct  recruits then the proportion is likely to be disturbed. That is not the  intention of the Rules. When the Rules say that every 4th vacancy is  to be filled up by direct recruit that means that the ratio is 25% by  direct recruitment and 75 % by promotion. We cannot ignore the  intention of the Rules that the proportion of 1: 4 is to  be maintained  i.e. the 4th vacancy has to be filled up by direct recruit then that ratio  could only be maintained if the entire cadre strength of the service is  taken into consideration. If every fourth vacancy is to be allowed then  this proportion is likely to be disturbed and that was not the intention  of the framers of the Rules. Therefore, the contention of Mr. Patwalia,  learned senior counsel for the appellants cannot be accepted. 7.              This Court in S.Prakash & Anr. (supra)  referring to  various Acts on the subject with relation to this service has observed  as follows :

               "   14.         From the aforesaid  discussion, it is clear that if the intention of the  rule-making authority was to establish a rule of  universal application to all the services in the  State of Kerala for which the Special Rules are  made, then the Special Rules will give way to  the General Rules enacted for that purpose.  This has to be found out from the language   used in the rules which may be express or by  implication. If the language is clear and  unqualified, the subsequent General Rule would  prevail despite repugnancy. If the  intention of  the rule-making authority is to sweep away all  the Special Rules and to establish a uniform  pattern for computation  of the ratio or  percentage of direct recruits and by transfer, in  such a case, the Special Rules will give way. On  the basis of the aforesaid settled principles, let  us interpret Rule 5 as well as Note (3) and the  method of recruitment prescribed under the  Special Rules. Rule 5 quoted above provides  the method of recruitment to any service, class  or category where the method of recruitment is  neither solely by direct recruitment nor by  transfer but is both by direct recruitment and by  transfer. It is made specifically applicable to the  "Special Rules". Clause (a)  provides that the  proportion or order will be applicable only to  substantive vacancies in permanent cadre;  clause b) provides that direct recruitment  shall  be only against substantive vacancy in  permanent cadre;  and recruitment to all other  vacancies shall be made by transfer. Notes (1)  and (2) provide that all permanent vacancies   and temporary vacancies except those of short  duration shall be treated as substantive  vacancies. Note (3) specifically provides that  "whenever" a ratio or percentage is fixed ( in the  Special Rules) for different methods of

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recruitment to a post, the number of vacancies  to be filled up by candidates from each method  is to be decided by applying a fixed ratio or  percentage to the cadre strength of the post to  which the recruitment is made  and "not to the  vacancies existing at that time". Therefore, the  entire Rule 5 deals with the Special Rules which  provide for filling up of the vacancies to any  service, class or category by direct recruitment  and by transfer. The language of Note (3) is  crystal clear  and is for removal of any ambiguity  by using positive and negative terms. It applies  to all the Special Rules whenever a ratio or  percentage is prescribed in the rules. It also  emphatically states that it has to be computed  on the cadre strength of the post to which the  recruitment is to be made and not on the basis  of the vacancies existing at that time."

8.              Learned counsel for the appellant  tried to distinguish the  decision  in S.Prakash & Anr. (Supra)  and submitted that in fact this  case related to  the recruitment to the post of Sales Tax Officer in the  Income Tax and Sales Tax Department and there a provision was  that  proportion of 20%  of successive substantive vacancies shall be  filled or reserved to be filled  by direct recruitment and the remaining   shall be filled or reserved to be filled by transfer of Assistant Sales  Tax Officers. The attempt on the part of learned senior counsel  for  the appellants to distinguish this case is futile. The percentage may  vary. Here it is  25% , there it may be 20% of the successive  vacancies. But the principle which has been laid down by this Court in  S.Prakash & Anr. (supra) clearly governs this case also as we have  already dealt with in detail that the principle," Generaliabus specialia  derogant" will not be applicable  in the present case  but what is  applicable is "Generalia specialibus non derogant"  which means general  things do not derogate from special things. In this case, the general  rule which has come in the later point of time and which governs  all  service rules and not derogant to the special rules will prevail and not  the special rules. In fact both could be read harmoniously as the  intention of both the Rules, if read together is  the ratio of  75%: 25%  is to be maintained in the whole of the cadre and was accordingly  reflected in the subsequent amendment  which was brought about in  Rules of 1958 in purported exercise of the power under Act of 1958.  Therefore, this general rule which is not repugnant with the Rules of  1974 will prevail and the ratio of 75% promotion and 25%  direct  recruit is to be maintained on the basis of the cadre strength.

9.              Mr.Jaideep Gupta, learned senior counsel appearing for  the  appellants in C.A.No.122 of 2002 [ Prasad Kurien & Ors. V.  K.J.Augustin & Ors.]  submitted that this case relates to Kerala Public  Health Engineering Service  and there the method of recruitment is  by transfer and there also the proportion has been maintained and he  tried to point out that this case relates to different service but after  going through the Rules we find that the same principle which is  applicable in the case of Excise Inspectors is squarely applicable in  this service also. Consequently, we do not fine any merit in this  submission of Mr.Gupta.

10.             Since we do not find any merit in this batch of appeals,  therefore, we need not to consider other submissions made by  Mr.Mukul Rohtagi, learned Senior Counsel appearing for the  appellants in C.A.No.1776 of 2007. Mr. Rohtagi submitted that the list  which has been prepared by the Kerala Public Service Commission  though has exhausted,  but the appellants have come up before this  Court in time, therefore, that list should be retained. We regret that  this question does not survive in view of the view taken by us and

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more so, the list has already exhausted. Therefore, we need not to  consider this aspect any more.

11.             As a result of our aforesaid discussion, we don’t find any  merit  in  these appeals and the same are dismissed with no order as  to costs.