2010 (2) TMI 1262 - SC - Indian Laws

Summary

Issues Involved:
1. Method of appointment to the post of Medical Officer (Homeopathy).
2. Application of ratio for recruitment based on cadre strength vs. existing vacancies.
3. Precedence of Special Rules over General Rules.

Summary:

Issue 1: Method of appointment to the post of Medical Officer (Homeopathy)
The appellant, a Pharmacist (Homeopathy) in the Kerala State Homeopathy Services, challenged the method of appointment to the post of Medical Officer (Homeopathy) as specified in the Special Rules for the Kerala State Homeopathy Services, 1989. Rule 3 of the Special Rules and Entry No.5 in the Table under the said rule prescribe a ratio of 5:1:1:1 for appointments by direct recruitment and transfers from Nurses, Pharmacists, and Clerks.

Issue 2: Application of ratio for recruitment based on cadre strength vs. existing vacancies
The appellant contended that the ratio should be applied to the cadre strength of Medical Officers (Homeopathy) rather than the existing vacancies, relying on Note (3) to Rule 5 of the General Rules. The Homeopathy department reported 55 vacancies, and the Kerala Public Service Commission invited applications based on the ratio of 5:1:1:1. The appellant argued that the vacancies should be reworked to account for the excess direct recruits and the shortfall in transferees.

Issue 3: Precedence of Special Rules over General Rules
The respondents contended that Note (2) to Entry 5 of the Special Rules, which states that vacancies in transfer categories filled by direct recruitment due to non-availability of candidates will not have their backlog restored, should prevail over Note (3) to Rule 5 of the General Rules. The High Court upheld this view, and the Supreme Court affirmed that the Special Rules, being later in point of time and specific to the Homeopathy Services, will prevail over the General Rules.

Conclusion:
The Supreme Court held that the ratio of 5:1:1:1 should be applied to the existing vacancies and not the cadre strength, as per Note (2) to Entry 5 of the Special Rules. The Special Rules, being subsequent and specific, prevail over the General Rules. The appeal was dismissed, and the High Court's decision was upheld.