Holding

The recruitment ratio of 75% promotion to 25% direct recruitment must be calculated on the basis of the total cadre strength, and the later general rule (Rule 5 Note 3, 1992) prevails over the special 1974 rules.

Summary

The Kerala Public Service Commission published a list of 40 direct recruits for the Excise Inspector cadre, which was challenged on the ground that the ratio of direct recruitment to promotion should be limited to 25% of the total cadre strength as per Note (3) to Rule 5 of the 1958 Service Rules. The petitioners argued that the special 1974 Excise Rules, which mandated that every fourth vacancy be filled by direct recruitment, should control, while the respondents relied on the general 1958 Rules amended in 1992. The Supreme Court examined the interplay between the Kerala Public Services Act, 1968, the proviso to Article 309 of the Constitution, and the principle that later general rules do not derogate from special rules when they are not repugnant. It held that the ratio of 75% promotion and 25% direct recruitment must be applied to the entire cadre strength, not to the existing vacancies, and that the 1992 amendment to the general rules prevails over the special rules. Consequently, the Court dismissed the appeals, affirming that the recruitment must follow the cadre‑strength ratio.

Issues considered

The correct method of applying the recruitment ratio: to total cadre strength versus existing vacancies.
Whether the special Kerala Excise and Prohibition Subordinate Service Rules, 1974, override the general Kerala State and Subordinate Service Rules, 1958 as amended.
The effect of the Kerala Public Services Act, 1968 and Article 309 on the hierarchy of service rules.
The applicability of the legal maxims 'generalia specialibus non derogant' versus 'generalia specialibus derogant' in this context.

Legislation cited

Constitution of Indias. Article 309
Kerala Public Services Act, 1968s. 2, s. 3

Subjects

recruitment ratiocadre strengthdirect recruitmentpromotionservice rulesKerala Public Services ActArticle 309interpretation of statutesgeneralia specialibus non derogantlegal maxim

Judgment

[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
Inspectors - By direct recruitment as also by promotion and/ c
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, 1974, 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 74 Rules, was
incorporated in exercise of power under the Act and not under
proviso to Article 309 of the Constitution - The general rule
f-
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,
1974 - 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
are not inconsistent with the special Rules governing the B
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 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 they are not
1 repugnant to the 1974 Rules. [para 4 and 6] [11-C, D; 18- D
E, F, G; 19-A]
2.1 Rule 5 of the 1958 Rules says that normal method
of recruitment to any service, class or category is both by
direct recruitment and by transfer and the proportion can
be laid down by the special Rules which are normally E
reflected from Rule 5 (a). Note.-(3) further says that in order
to decide the proportion between the direct recruits and
yo promotees, the entire cadre strength of the service has to
be taken into consideration and not the vacancies existing
....... at a particular time. Therefore, as per the schemes of the F .
general Rules, it is provided that the proportion between
direct recruits and appointees 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 recruits and promotees on the basis of the total G
cadre strength and not to the vacancies existing at that
point of time. [para 4] [12-F, H; 13-A, B, C]
2.2 The 1974 Rules which govern the recruitment and
promotion of Excise Inspectors and Excise Preventive
Inspectors, only lay down that every fourth substantive H
4 SUPREME COURT REPORTS [2008] 3 S.C.R.

A vacancy shall be filled or reserved to be filled by direct
recruitment. On harmoniously reading Note (3) to Rule 5
of the 1958 Rules along with the 1974 Rules, it becomes
clear that at the time of determination of fourth substantive
vacancy the ratio or percentage has to be maintained of
B the cadre strength of the posts to which the recruitment
is made and not of the existing vacancies at that time. If
the relevant provisions are construed in such a
harmonious manner, then the desired result can be
achieved. [para 5-6] [13-G; 14-A; 19-A, B]
C 2.3 When the Rules say that every 4th vacancy is to
be filled up by a direct recruit that means that the ratio is
25% by direct recruitment and 75 % by promotion. The
intention of the Rules is that the proportion of 1: 4 is to be
maintained i.e. the 4th vacancy has to be filled up by a
D direct recruit. This ratio could be maintained only when
the entire cadre strength of the ser;•ice is taken into
consideration. If every fourth vacancy is to be allowed to
be filled by direct recruitment then this proportion is likely
to be disturbed and that was not the intention of the
E fr~mers of the Rules. [para 6] [19-F, G, H; 20-A]
3.1 In the instant case, the principle, "Generaliabus
specialia derogant" will not be applicable but what is
applicable is "Generalia specialibus non derogant", which
means general things do not derogate from special things. ....._
F The general rule, which has come in the later point of time
and which governs all service rules and is not derogant
to the special rules, will prevail and not the special rule. In
fact, both could be read harmoniously as the intention of
both the Rules, if read together, is that the ratio of 75%:
G 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 1968. Therefore, this
general rule which is not repugnant with the Rules of 1974
H will prevail and the ratio of 75% promotion posts and 25%
PRASAD KURIEN AND ORS. v. K.J. AUGUSTIN 5
AND ORS. [A.K. MATHUR, J.]

direct recruit posts is to be maintained on the basis of the A
cadre strength. [para 8] [21-G, H; 22-A, B]
$.Prakash andAnr. V KM.Kurian and Ors. [1999] 5 SCC
624 - relied on.
S. C. Jain v. State of Haryana and Anr. [(1985) 4 SCC B
645; Chandra Prakash Tiwari and Ors. V Shakuntala Shukla
and Ors.[(2002) 6 sec 127] and D.R. Yadav and Anr. VR.K.
Singh and Anr. [(2003) 7 SCC 110] held inapplicable.
3.2 The same principle which is applicable in the case
of Excise Inspectors is squarely applicable in Kerala C
Public Health Engineering Service also. [para 9]

CIVILAPPELLATE JURISDICTION: Civil Appeal No. 122
of 2002.
From the final Judgment and Order dated 3/10/2001 of D
the High Court of Kerala at Ernakulam in W.A. No. 552/2000.
WITH
Civil Appeal Nos. 833, 5663, 6478/2002, 1776, 1847,
1848 and 1849 of 2007. E

Jaideep Gupta, P.S. Patwalia, Mukul Rohtagi, U.U. Lalit,
L. Nageshwara Rao, P. Krishnamurty, T.L.V. Iyer, C.S. Rajan,
Malini Poduval, M.T. George, P.S. Narasimha, K.V.
Vishwanathan, M. Gireesh Kumar, Avjeeth k. Lala,
Khwairakpam Nobin Singh, Vijay Kumar, Krishnan Venugopal, F
Sreedharan Kodoth, A. Raghunath, Hari Kumar G., M.P. Vinod,
Dillep Pillai, Ajay K. Jain, Romy Chacko, Arpit Gupta, B.
Raghunath, R. Nedumaran, P.V. Dinesh, K.R. Sasiprabhu, B.
Sunita Rao, K.R. Nambiar, Vipin Nair, P.B. Suresh and Vivek
Sharma (for M/s. temple Law Firm) for the appearing parties. G
The Judgment of the Court was delivered by
A.K. MATHUR, J. 1. In all these appeals, identical
questions of law are involved, therefore, they are disposed of
H
6 SUPREME COURT REPORTS [2008] 3 S.C.R.

A by this common order. For the convenient disposal of these
appeals, the facts given in C.A.No.5663 of 2002
(AK.Narayanan Kutty & Ors. V. State of Kerala & Ors.) are taken
into consideration.

2. The common facts in this batch of petitions is that the
8
Public 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,
C 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
D 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
E 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
F 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
G 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
H Inspectors, (2) Excise Preventive Officers, (3) Excise Guards
PRASAD KURIEN AND ORS. v. K.J. AUGUSTIN 7
AND ORS. [A.K. MATHUR, J.]

and (4) Drivers is governed by these Rules. The method of A
appointment as 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 B
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 c
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
D
f c.ontention 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 E
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
F
..... 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 distinguisheQ.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 G
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 H
8 SUPREME COURT REPORTS [2008] 3 S.C.R.

A 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
B 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.

C 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,
D 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
E 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
F 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 tJlat every fourth vacancy should be construed as
appearing in the Rules of 1974, meaning thereby as and when
G 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. 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
H
.•
PRASAD KURIEN AND ORS. v. K.J. AUGUSTIN 9
.,, AND ORS. [A.K. MATHUR, J.]

*& Anr. (supra) was governed by different Service Rules and A
that judgment cannot hold good so far as these Special Rules
are concerned.
4. However, in order to understand the controversy involved
j 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 B
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 c
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
D
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 E
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 F
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 G
reads as under:
>-
" Preamble.- Whereas it is considered necessary that
the recruitment, and conditions of service of persons
1
appointed, to public services and posts in connection with
H
10 SUPREME COURT REPORTS (2008] 3 S.C.R.

A 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:-

B 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
c appointed, to public services and posts in connection with
the affairs of the State of Kerala. Section 3 provides
continu~nce of existing Rules framed by State under
proviso to Article 309 which is relevant for our purpose
reads as under :
D
"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
E Kerala and in force 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

F
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
G 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
H of service of persons appointed to public services and posts in

'
PRASAD KURIEN AND ORS. v. K.J. AUGUSTIN 11
AND ORS. [A.K. MATHUR, J.]

connection with the affairs of the State of Kerala were deemed A
to have been made under these Rules. The result of this is that
all the Rules which had been framed by the State of Kera la 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 B
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 c
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 furth~r lays down
that the special rule shall govern the special services and these
D
Rules i.e. the general rules will only govern to the extent that
they are n.ot 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 E
provision in the Special Rules applicable to any particular
service contained in Part Ill, the latter shall, in respect of
x that service, prevail over the provision in the general rules
in this part."
Rule 5 which deals with the method of recruitment reads F
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
G
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 H
12 SUPREME COURT REPORTS (2008) 3 S.C.R.

A vacancies in the permanent cadre;
(b) a person shall be recruited direct only against ~
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
8 clause (a); and
(c) recruitment to all other vacancies shall be made by
transfer.
[Note :- (1) All permanent vacancies and temporary
c vacancies except those of short duration shall be
treated as substantive vacancies. ·
(2) Leave vacancies and vacancies of less than 6
·months' duration shall be treated as vacancies of
short duration]
D
[(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
E 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
F 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
G 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
H or percentage is fixed for different methods of recruitment/
PRASAD KURIEN AND ORS. v. K.J. AUGUSTIN 13
AND ORS. [AK. MATHUR, J.]

appointment to a post· the number of vacancies to be filled up A
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 B
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 c
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 D
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 E
the total cadre strength and then work out ifthe 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 F
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. G
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.
H
14 SUPREME COURT REPORTS [2008] 3 S.C.R.

A 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
B deals with the appointment of various categories and method
of appointment which reads as under:
"2. Appointment.-AppointmEnt to the various categories
shall be made as follows:-

C Category Method of appointment
(1) (2)

1. Excise Inspectors (1) Direct recruitment, or
(2) Promotion from category 1A
D (3) Recruitment by transfer from
among Upper Division
Clerks employed in the
Excise Department :
Provided that every fourth
E vacancy in the category
shall be filled or reserved
to be filled by direct
recruitment.

Xx xx xx
F
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,
G 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.
H
PRASAD KURIEN AND ORS. v. K.J. AUGUSTIN 15
AND ORS. [A.K. MATHUR, J.]

1A. Assistant Excise Promotion from category 2. A
Inspectors.
Note:- Promotion from category 2 shall be made in the
ratio of 1 :3 between graduates and non-graduates.
Provided that no senior graduate B
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. C
Provided that every fourth
substantive vacancy shall be filled
or reserved to be filled by direct
recruitment:
D
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. E
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 F
Service employed in the Excise
Department, and
(ii) Direct recruitment.
Note :- (1) Recruitment to the post by direct recruitment G
and by transfer shall be made by the Kerala Public Service
Commission.
(2) 90 per cent of the vacancies shall be filled or reserved
to be filled by direct recruitment and the remaining 10 per H
16 SUPREME COURT REPORTS [2008] 3 S.C.R.

A 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.

C 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
D 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
E 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 alf existing Rules, therefore, this proviso which is
specially meant for recruitment of these services will govern and
F not the general rules which was framed in exercise of proviso to
Article 309 of t,he 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,
G (i) [ (1985) 4 sec 645]
S.C.Jain v. State of Haryana & Anr.
(ii) [(2002)6 sec 127]
Chandra Prakash Tiwari & Ors. V.
Shakuntala Shukla & Ors.
H
PRASAD KURIEN AND ORS. v. K.J. AUGUSTIN 17
AND ORS. [A.K. MATHUR, J.]
-· (iii) [(2003) 7 sec 1101 A
D.R.Yadav & Anr. V. R.K.Singh & Anr.
and tried to distinguish the judgment of this Court in
$.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 B
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 c
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 D
.;, 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
E
Article 309 of the Constitution shall be deemed to have been
framed under the said Act and Not (3) which was appended to
Buie 5 of the Rl.lles of 1958 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 : F
-.
"S.R.O. No.194/93.- In exercise of the powers conferred
by sub~section (1) of section 2 of the Kera la Public
Services Act, 1968 ( 19 of 1968) read with section 3
thereof, the Government of Kerala hereby make the G
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. H
18 SUPREME COURT REPORTS [2008] 3 S.C.R.

A 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
B 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
c 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
0
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
E 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
F 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
G 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
H subsequent point of time under the Act of 1968, will hold the
PRASAD KURIEN AND ORS. v. K.J. AUGUSTIN 19
.,,. AND ORS. [A.K. MATHUR, J.]

field and these rules are not repugnant to the Rules of 1974. A
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 B
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 c
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
) D
vacancies has been given to us from which it appears that as
per the 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. E
' 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, F
4 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 G
~ 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 H
20 SUPREME COURT REPORTS [2008] 3 S.C.R.

A 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
8 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
c 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
D
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
E 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
F 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
G permanent cadre; clause b) provides that direct recruitment
shall be only against substantive vacancy in permanent ,,
I
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
H duration shall be treated as substantive vacancies. Note
PRASAD KURIEN AND ORS. v. K.J. AUGUSTIN 21
,,.
AND ORS. [AK. MATHUR, J]

(3) specifically provides that "whenever" a ratio or A
percentage is fixed ( in the Special Rules) for different
methods of 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 B
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 c
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
D
the basis of the vacancies existing at that time." I

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 E
a provision was that proportion of 20% of successive substantive
vacancies shall be filled or reserved to be filled by direct
'f 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 F
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
G
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
H
22 SUPREME COURT REPORTS [2008] 3 S.C.R.

A 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
B 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
C 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
~.
D 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.
E 10. Since we do not find any merit in this batch of appeals,
then:lfore, 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
F 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 more so, the list has already
exhausted. Therefore, we need not to consider this aspect any
G 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.
H R.P. Appeals dismissed. ·