Decided on October 09,1974



V.KHALID,J. - (1.) THERE are two petitioners in this O.P.The first petitioner is a member of the Scheduled Caste.He was appointed on 1st January 1974 to the cadre of Section Officer,a gazetted post in the Law Department.Ext.P -1 dated,24th September 1973 is the select list for promotion.In Ext.P -1 the first petitioner is shown as No.4.The order of appointment of the first petitioner as Section Officer is,Ext.P -2.The feeder category for promotion as Section Officer is,Legal Assistant Grade I,The 2nd petitioner,who is the seniormost legal Assistant Grade I,is entitled to be promoted as Section Officer in the Law Department.
(2.) THE State Government issued Ext.P -3 notification on 6th August 1970 for special recruitment of Scheduled Caste and Scheduled Tribe candidates.The 3rd respondent was selected by the Public Service Commission,to the post of Section Officer,by virtue of Ext.P -3 notification.The appointment of the first petitioner as per Ext.P -2 was subject to the condition that he will be reverted in case,there is no vacancy available in the Law Department as Section Officer,after accommodating the Scheduled Caste/ Scheduled Tribe candidate as advised by the Public Service Commission as Section Officer in the Law Department.The first petitioner contends that he is a regular promotee and he cannot be displaced by a Public Service Commission candidate.He challenges the condition imposed in Ext.P -2.Both the petitioners challenge Ext.P -3 notification by the Government as violative of Article 16(1)and 16(4)of the Constitution of India. Both the State Government and the 3rd respondent have filed counter -affidavits in this case.The appointment of the 3rd respondent has been stayed as per order in C.M.P.No.411 of 1974.
(3.) THE contention of the State Government is that the first petitioner cannot question Ext.P -2,which is his appoint­ment order,since he should be deemed to have accepted Ext.P -2 in to to and therefore the condition imposed cannot be made the subject -matter of challenge by him.Ext.P -3 is also not open to challenge inasmuch as it is consistent with rule 17A of the Kerala State and Subordinate Service Rules hereinafter referred to as K.S.S.R .,and in conformity with rule 14A of the K.S.S.R.It is also contended that there is no violation of either Article 16(1)or 16(4)of the Constitution.The 3rd respondent has adopted the con­tentions of the State.;

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