LexPRASAD KURIEN AND ORS. versus K.J. AUGUSTIN AND ORS.
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[2008] 3 S.C.R. 1 .,, PRASAD KURIEN AND ORS. A v. K.J. AUGUSTIN AND ORS. (Civil Appeal No. 122 of 2002) FEBRUARY 19, 2008 B (A.K. MATHUR AND B. SUDERSHAN REDDY, JJ.) Kera/a State and Subordinate Service Rules, 1958, Rule 5-Note (3)-Appointment to cadre of Excise c Inspectors - By direct recruitment as also by promotion and/ or/transfer - Fixed ratio or percentage to be applied to cadre strength and not to existing vacancies- Direct recruits claiming that in view of the special rules, namely, Kera/a Excise and Prohibition Subordinate Service Rules, 197 4, ratio of 75% and ' 25% for promotees and direct recruits, respectively, was to be D " applied to existing vacancies and every fourth existing vacancy was to be filled by direct recruits - Held: The ratio is to be maintained taking into consideration the entire cadre strength and not the existing vacancies - The 1958 Rules having been saved by Kera/a Public Service Act, 1968, Note (3) appended E to r. 5 of 1958 Rules much after the 19 7 4 Rules, was incorporated in exercise of power under the Act and not under f- proviso to Article 309 of the Constitution - The general rule which has come later in point of time and which governs all ~. service rules and is not derogant to special rules, will prevail F and not the special rules - Kera/a Public Service Act 1968 - r. 3 - Kera/a Excise and Prohibition Subordinate Service Rules, 197 4 - Rule 2 - Constitution of India, 1950 - Article 309 - Proviso - Interpretation of Statutes - Legal Fiction. Legal Maxim: G "Generalia specialibus non derogant" - Applicability of. A select list of 40 direct recruits was published by the Kerala Public Service Commission for appointment 1 H 2 SUPREME COURT REPORTS [2008) 3 S.C.R. A to the cadre of Excise Inspectors. Writ Petitions were filed challenging the select list on the ground that keeping in view the ratio of direct recruits and promotees as envisaged by Note (3) to Rule 5 of the Kerala State and Subordinate Service Rules, 1958, direct recruitment could B be made only to 10 posts. Single Judge of the High Court allowed the claim of promotees and held that direct recruitment must be confined to the ratio as applicable to cadre strength and not to the existing vacancies. In appeal, the Division Bench of the High Court held that c 25% of the posts were to be filled by direct recruits. Aggrieved, the direct recruits filed the appeals. It was contended for the appellants that in the instant case the special rules, namely, the Kerala Excise and Prohibition Subordinate Service Rules, 1974 framed under D the Kerala Public Service Act, 1968, were applicable, and not the general rules, namely, the Kerala State and Subordinate Service Rules, 1958, which, according to the appellants, were framed under the proviso to Article 309 of the Constitution. On the strength of the 1974 Rules, it E was submitted that every fourth vacancy de hors the cadre strength was to be filled by direct recruitment. Dismissing the appeals, the Court HELD: 1.1 So long as the State Legislature does not F pass any Act, the State Government can frame rules under proviso to Article 309 of the Constitution. But the moment an Act is framed, then the power of the State Government to frame Rules under proviso to Article 309 of the Constitution comes to an end. However, by virtue of G Section 3 of the Kerala Public Services Act, 1968, which saves the existing Rules framed under proviso tCJ Article 309 of the Constitution, the Kerala State and Subordinate Services Rules, 1958 which were in existence governing the service conditions of persons appointed to public services and posts in connection with the affairs of the H .~ PRASAD KURIEN AND ORS. v. K.J. AUGUSTIN 3 AND ORS. State of Kerala, shall be deemed to have been issued A under the 1968 Act by legal fiction. [para 4] [10-F, G; 11-B] 1.2 Rule 2 of the 1958 Rules lays down that these rules will govern all holders of posts whether temporary or permanent under the State, only to the extent that they B are not inconsistent with the special Rules governing the special services. Note (3) to Rule 5 inserted in the 1958 Rules in 1992 subsequent to the Rules of 1974, was framed under the 1968 Act and not under proviso to Article 309 of the Constitution. The Rules of 1958 are of general nature which clearly stipulate that cadre strength has to c be taken into consideration for maintaining the ra
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