The appellant companytends that Note 3 to Rule 5 of the General Rules will prevail over Note 2 to entry 5 of the Table under Rule 3 of the Special Rules.
The writ petitioners relied upon Note 3 to Rule 5 of the General Rules which requires that the ratio should be with reference to the cadre strength and number the actual vacancies existing at the time of recruitment.
They submitted that the provisions of the Special Rules will prevail over the provisions of the General Rules.
2010 3 SCR 16 The Order of the Court was delivered by O R D E R V. Raveendran, J. 1.
They companytended that having regard to Note 2 to Entry 5 of the Special Rules, when in a recruitment, transfer quota posts have to be filled by direct recruits, due to number availability of candidates from transfer categories, the backlog in regard to such transfer categories cannot be restored in future recruitments.
The Commission, by numberification dated 1.2.2000, invited applications for filling up the said 55 posts of Medical Officer Homeopathy by dividing them in the ratio of 5111 as follows Direct recruitment 32 Transfer from Nurses Homeopathy 7 Transfer from Pharmacist Homeopathy 7 Transfer from Clerks 7 The appellant and two others filed a writ petition before the High Court seeking a direction to the state government to report to the Public Service Commission 32 vacancies of Medical Officers Homeopathy to be filled by appointment by transfer of Pharmacists Homeopathy .
They companytended that the cadre strength of Medical Officers Homeopathy was 442 that having regard to the ratio of 5111 for making appointments provided in the Special Rules, vide Note 1 to Entry 5 of the Table , out of the said 442 posts, 277 posts companyld be filled by direct recruitment and the balance of 165 posts had to be filled by transferees from the posts of Nurses, Pharmacists and Clerks in the Homeopathy department at the rate of 55 each that due to number availability of qualified persons in the categories from which appointments were to be made by transfer, only 23 from the category of Pharmacists, one each from the categories of Nurses and Clerks were holding the post of Medical Officers, and all other Medical Officers Homeopathy were direct recruits that as the direct recruits were occupying posts in excess of their quota, when making further recruitments, the vacancies to be filled have to be determined by applying the fixed ratio to the cadre strength and number the vacancies then existing and that as the direct recruits were in excess of their quota and transferees were occupying less than their entitlement, the allocation of 55 vacancies to different categories had to be reworked and all 55 vacancies ought to be distributed among Pharmacists, Nurses and Clerks without providing for any direct recruitment.
The respondents resisted the petition.
The appellant challenged the said order by filing a writ appeal.
He therefore disposed of the writ petition by order dated 28.6.2001 with a direction to the respondents to fill up the available vacancies by applying the quota mentioned in the Special Rules with reference to the existing vacancies of Medical Officers Homeopathy , that is vacancies available as on 12.4.1999 and vacancies which arose thereafter.
emphasis supplied Rule 5 of the General Rules is a general rule relating to the manner of recruitment.
The following was added as Note 3 to the said Rule 5 of the General Rules by the Kerala State Subordinate Services Amendment Rules, 1992 Note 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 fixed ratio or percentage to the cadre strength of the post to which the recruitment transfer is made and number to the vacancies existing at that time.
He further directed that if there was any dearth of qualified Pharmacists, Nurses, Clerks within the quota intended for them, those vacancies should be filled by direct recruitment and the backlog shall number be required to be restored in any future recruitment.
In the absence of candidates by transfer those vacancies in each category will be filled up by direct recruitment from open quota and the backlog for such categories will number be restored.
The Homeopathy department reported 55 vacancies in the post of Medical Officers Homeopathy to the Kerala Public Service Commission, for purposes of recruitment.
The said order is challenged in this appeal by special leave.
The appointment by transfer of Nurse Homeopathy , Pharmacist Homeopathy , Clerk Homeopathy will be done by a selection through the Kerala Public Service Commission from among the three categories.
A ratio of 5111 shall be maintained in making appointments between direct recruitment, transfer from Nurses Homeopathy , Pharmacist Homeopathy and Clerks in Homeopathy Department.
As a result, the number of vacancies to be filled under each category that is direct recruitment and by transfers at any subsequent recruitment can be only by applying the ratio for appointment to the number of vacancies existing at the time of such subsequent recruitment and number with reference to the cadre strength.
A Division Bench of the High Court by the impugned order dated 29.11.2002, dismissed the writ appeal holding that the recruitment will be governed by the Special Rules.
A learned Single Judge held that the writ petitioners can claim the quota for Pharmacists only in respect of the vacancies that existed as on 12.4.1999 and vacancies that arose subsequently.
All sub ordinate services in the State of Kerala including the State Homeopathy Services are also governed by the Kerala State and Sub ordinate Services Rules, 1958 General Rules for short .
The appellant is a Pharmacist Homeopathy in the Homeopathy Department of State of Kerala.
The Kerala State Homeopathy Services are governed by the Special Rules for the Kerala State Homeopathy Services, 1989 Special Rules, for short .
