MAYA MATHEW v. STATE OF KERALA & Ors.

ORDER R.V. RAVEENDRAN, J. 1. 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). 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). c D I= F .G H 18 SUPREME COURT REPQRTS 1201 O] 3 S.c'.R. A • 2. Rule 3 of the Special Rules provides that the method of appointment to different categories of posts shall be in the manner specified in the Table given under the said rule. Entry No.5 in the said Table relating to Medical Officers (inserted by G.O. dated 27.5.1999, with effect from 12.4.1999) is extracted B below: Category of Post Method of appointment Medical Officer

#1. By direct recruitment c D E F G H

#4. By transfer from t-h~e category of Nurse (Homeopathy) By transfer from the category of Pharmacist (Homeopathy) By transfer from the category of Clerks (Homoeo Department) Note: 1. A ratio of 5: 1: 1: 1 shall be maintained in making appointments between direct recruitment, from Nurses transfe? (Homeopathy), Pharmacist {Homeopathy) and Clerks in Homeopathy Department.

#2. The appointment by transfer of Nurse (Homeopathy), Pharmacist (Homeopathy), Clerk (Homeopathy) will be done by a selection through the Kerala Public Service Commission categories. 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 not be restored." from among [emphasis supplied) .. MAYA MATHEW v. STATE OF KERALA & ORS. [RV. RAVEENDRAN, J.] 19

#3. Rule 5 of the General Rules is a general rule relating to A 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 8 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 not to the vacancies C existing at that time."

#4. The Homeopathy department reported 55 vacancies in the post of Medical Officers (Homeopathy) to the Kerala Public Service Commission, for purposes of recruitment. The Commission, by notification dated 1.2.2000, invited D applications for filling up the said 55 posts of Medical Officer (Homeopathy) by dividing them (in the ratio of 5:1 :1 :1) as follows: (i) (ii) (iii) (iv) Direct recruitment Transfer from Nurses (Homeopathy) 32 7 Transfer from Pharmacist (Homeopathy) 7 Transfer from Clerks 7 E F

#5. 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 contended that the G cadre strength of Medical Officers (Homeopathy) was 442; that having regard to the ratio of 5: 1: 1 : 1 for making appointments (provideui in the Special Rules, vide Note (1) to Entry 5 of the Table), out of the said 442 posts, 277 posts could be filled by direct recruitment and the balance of 165 posts had to be filled H 20 SUPREME COURT REPORTS [2010] 3 S.C.R. A by transferees from the posts of Nurses, Pharmacists and Clerks in the Homeopathy department at the rate of 55 each; that due to non-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 B 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 c the fixed ratio to the cadre strength and not 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 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 not the actual vacancies existing at the time of recruitment. The appellant contends that Note (3) to Rule 5 of the General Rules E will prevail over Note (2) to entry 5 of the Table under Rule 3 of the Special Rules.

#6. The respondents resisted the petition. They contended that having regard to Note (2) to Entry 5 of the Special Rules, F when in a recruitment, transfer quota posts have to be filled by direct recruits, due to non-availability of candidates from transfer categories, the backlog in regard to such transfer categories cannot be restored in future recruitments. As a result, the number of vacancies to be filled under each category (that is G 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 not with reference to the cadre strength. They submitted that the provisions of the Special Rules H will prevail over the provisions of the General Rules. MAYA MATHEW v. STATE OF KERALA & ORS. [R.V. RAVEENDRAN, J.] 21

#7. A learned Single Judge held that the writ petitioners can A claim the quota for Pharmacists only in respect of the vacancies that existed (as on 12.4.1999) and vacancies that arose subsequently. 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 B 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. He further directed that if there was any dearth of qualified Pharmacists, Nurses, Clerks within the quota intended for them, those C vacancies should be filled by direct recruitment and the backlog shall not be required to be restored in any future recruitment. The appellant challenged the said order by filing a writ appeal. 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. 0