Judgment :- 1. The writ petitioners before us are two employees of the Agricultural Income-tax and Sales-tax Department of the Kerala Government, presently holding the posts of Upper Division Clerks. The first petitioner was appointed as a Lower Division Clerk in the said Department on 23rd March 1961. The second petitioner commenced service as a Lower Division Clerk in the same Department on 27th June 1961. In order that a person should be eligible for promotion from the Lower Division to the Upper Division category in the said Department, he should have passed the Account Test (Lower), the Agricultural Income-tax and Sales tax Test and the Secretariat Manual Test Test in the Manual of Office Procedure. The two writ petitioners acquired the said qualifications in October, 1964 and March, 1966 respectively. 2. Respondents Nos. 3 and 4 were appointed as Lower Division Clerks in the same Department on 15th July 1958 and 2nd September 1958 respectively. By virtue of their prior entry into the service both of them were seniors to the writ petitioners in the Lower Division category. However, it was only on 6th April 1971 that they acquired the test qualifications and till then they were not eligible for promotion to the Upper Division. When vacancies arose in Upper Division category in April, 1969, the writ petitioners were promoted as Upper Division Clerks on 20th April 1969. Respondents 3 and 4, though seniors in relation to the petitioners, were then passed over for promotion, since they did not possess the requisite test qualifications. Subsequently respondents Nos. 3 and 4 were also promoted as Upper Division Clerks on 10th June 1971 after they had acquired the test qualifications. On 12th July 1971 the Board of Revenue (Second respondent) finalised and published a seniority list of Upper Division Clerks after conducting a review of the promotions effected subsequent to 1st November 1956. Ext. P-1 is a copy of the said proceedings of the Board of Revenue, to which the seniority list is annexed as Appendix II. In that list the two writ petitioners were assigned ranks Nos. 575 and 576 respectively. The names of respondents Nos. 3 and 4 were not included at all in the said list, since their promotions were effected only on 10th June 1971. 3. Both the writ petitioners were declared to have satisfactorily completed their probation in the Upper Division category on 19th April 1970. 575 and 576 respectively. The names of respondents Nos. 3 and 4 were not included at all in the said list, since their promotions were effected only on 10th June 1971. 3. Both the writ petitioners were declared to have satisfactorily completed their probation in the Upper Division category on 19th April 1970. 4. By G. O. Ms.16/72/TD, dated 14th March 1972, 9 new posts of Head Clerks were created in the Agricultural Income-tax and Sales tax Department. Even though under R.27 of the General Rules of the Kerala State and Subordinate Services Rules the two writ petitioners were ordinarily entitled to be treated as seniors in relation to respondents 3 and 4 in the Upper Division category by virtue of their earlier promotions thereto, the Board of Revenue by its order dated 21st September 1972 promoted respondents 3 and 4 as Head Clerks overlooking both the writ petitioners. Ext. P-2 is a copy of the said order passed by the second respondent. Quite naturally, the petitioners felt greatly aggrieved at their having been superseded by their juniors for promotion to the category of Head Clerks. The petitioners state that on enquiries made by them they came to understand that the Board of Revenue has granted the promotions to respondents 3 and 4 on the basis that despite the fact that the petitioners had been to the Upper Division category very much earlier than respondents 3 and 4, the said respondents by reason of their of having been seniors in the Lower Division became entitled to a restoration of their original seniority when they got themselves promoted to the Upper Division after acquiring the test qualifications as per the principles laid down in the order of the Travancore-Cochin Government R.Dis.No.8207/50/CS. dated 7th May 1951, the operation of which has been saved by the first proviso to R.27 of the K.S.S.R. Even though respondents Nos. 3 and 4 had entered service only after the formation of the Kerala State, it is said that the Board of Revenue has treated them as eligible for the benefits conferred by the Travancore-Cochin Government Order, dated 7th May 1951 on the strength of two executive orders dated 26th July 1961 and 19th September 1961 passed by the State Government of Kerala. The validity of those two executive orders of the Government was called in question before this Court in P. K. Joseph & another v. State of Kerala 1972 KLT 45 and it was held by a Division Bench that those two orders, in so far as they purported to lay down that personnel appointed in the Kerala State between 1st November 1956 and 17th December 1958 would be governed by the order of the Travancore-Cochin Government dated 7th May 1951 went against the principle laid down in R.27 of the K.S.S.R. for the reckoning of seniority and were therefore illegal and void. Relying strongly on the said decision the petitioners have contended in this writ petition that the Board of Revenue has acted illegally in treating respondents 3 and 4 as persons entitled to the benefit of restoration of seniority under the Travancore-Cochin Government Order, dated 7th May 1951. Alternatively it is also contended by them that even if respondent Nos. 3 and 4 are to be regarded as eligible for the benefit conferred by the Travancore-Cochin Government Order dated 7th May 1951, they can claim a restoration of seniority only as against other persons who are governed by the said order. It is submitted by the petitioners that the provisions of the Travancore-Cochin Government Order, dated 7th May 1951 are not applicable to persons like the petitioners, who have joined service only after 17th December 1958, on which date the Kerala State and Subordinate Services Rules came into force. The terms and conditions of their service, in relation to all matters covered by the K.S.S.R., are governed only by the provisions contained in those rules. The terms and conditions of their service, in relation to all matters covered by the K.S.S.R., are governed only by the provisions contained in those rules. The petitioners therefore claim that they have an inviolable statutory right to have their seniority fixed in accordance with the provisions of R.27 of the K.S.S.R. and no inroad can be made into the said right by any action taken in purported implementation of the provisions of the Travancore-Cochin Government Order, dated 7th May 1951 in respect of persons, to whom the said G. O. may be applicable; in other words the argument is that since the Travancore-Cochin Government Order, dated 7th May 1951 is not applicable to the petitioners, the petitioners are not under any obligation to surrender their seniority or rank in favour of their erstwhile seniors in the Lower Division who had been passed over for promotion to the Upper Division for want of test qualification, and the seniority of the petitioners in the Upper Division category has to be reckoned in strict conformity with the provisions of R.27 of the K. S. S. R. On the basis of these contentions the petitioners have approached this Court seeking to quash the promotions granted by the second respondent to respondents 3 and 4 overlooking the superior claims possessed by the petitioners for such promotion based on their seniority. 5. Subsequent to the filing of this writ petition R.27 of the K.S.S.R. has been amended by notification, dated 15th November, 1972 issued by the State Government. By the said amendment a further proviso has been added to sub-rules (a) and (b) of R.27. That proviso is in the following terms: "Provided further that the above said order of the Travancore-Cochin Government as subsequently clarified shall also be applicable to the persons appointed in the State of Kerala before the coming into force of these Rules." By this new proviso which has been introduced with retrospective effect from 17th December 1958, the principle which had been originally laid down by the two executive orders dated 27th September 1961, and 15th September 1961 namely that persons appointed into service during the period from 1st November 1956 to 16th December 1958 are also to be governed by the Travancore-Cochin Government Order, dated 7th May 1951, has been incorporated in the statutory rule. Hence the decision in 1972 KLT 45 is no longer of any assistance to the petitioners and respondent Nos. 3 and 4 have now to be regarded as persons to whom the Travancore-Cochin Government Order, dated 7th May 1951 applies. 6. The petitioners are, therefore, left with their only second contention, namely, that even if respondents 3 and 4 are entitled to the benefit of the Travancore-Cochin Government Order, dated 7th May 1951, they cannot claim any restoration of seniority as against the petitioners, since the petitioners are not governed by the said order. Divergent views have been expressed by two learned judges of this Court on the question whether in giving effect to the principle of restoration of seniority laid down in the Travancore-Cochin Government Order, dated 7th May 1951 in respect of persons who are entitled to the benefit of the said order, members of the service who are not governed by the said order can be compelled to surrender their seniority in favour of the former. In the unreported judgment in O.P. No. 5142 of 1970 our learned brother Gopalan Nambiyar, J. has taken the view that in the process of giving effect to the principle of restoration of seniority in respect of persons governed by the G.O. dated 7th May 1951, the operation of which is saved by the proviso to R.27 of the K.S.S.R., even personnel, who are not governed by the provisions of the said G.O. will be liable to surrender their seniority and rank in favour of the former. Rejecting the contention of the writ petitioners in that case that their seniority was not liable to be disturbed, since the G.O. dated 7th May 1951 was not applicable at all to them, the learned judge observed: "It is no answer for the petitioners to say that as they are not covered by the G.O. dated 7th May 1951, the same cannot be applied against them." A similar question arose before our learned brother Isaac, J. in O.P.No. 4030 of 1970. The learned judge after adverting to the principles laid down in 1972 KLT 45 and in a subsequent unreported ruling of another Division Bench in O.P. No. 419 of 1970, held that the proviso to R.27 (at that time the rule contained only the first proviso) only saves the T. C. Government order dated 7th May 1951 and hence it cannot adversely affect persons, who are not governed by the said G.O. In that case, by the order impugned therein which was passed in purported implementation of the T.C. Government order dated 7th May 1951, the 4th respondent therein, who was a person entitled to the benefit of the said G.O. was assigned seniority over the writ petitioner therein, even though the latter was not governed by the T.C. Government order. The learned judge quashed the said order holding that the rule of restoration of seniority embodied in the Government Order dated 7th May 1951 can be applied only in respect of personnel, who were governed by the said order, Referring to the judgment of Gopalan Nambiyar, J. in O. P. No. 5142 of 1970 the learned judge observed that the view taken therein was not consistent with the ruling of the Division Bench in Joseph's case 1972 KLT 45. 7. It is because of the divergence in the views expressed by the two learned fudges on the aforesaid question that this writ petition has been posted before a Division Bench. 8. R.27 of the K. S. S. R. lays down the principle to be followed for determining the seniority of a person in a service, class, category or grade. Clause (a) of the above rule lays down that seniority of a person in a service, class, category or grade shall, unless he has been reduced to a lower rank as punishment, be determined by the date of the order of his first appointment to such service, class, category or grade. If any portion of the service of such person does not count towards probation under the rules, his seniority shall be determined by the date of commencement of his service which counts towards probation. Clause (b) lays down that in cases where two or more persons are simultaneously appointed to a service, the appointing authority should fix the order of preference among them and the inter se seniority is to be determined in accordance therewith. Clause (b) lays down that in cases where two or more persons are simultaneously appointed to a service, the appointing authority should fix the order of preference among them and the inter se seniority is to be determined in accordance therewith. In the rule as it stands after its amendment by the notification dated 15th November, 1972 there are two provisos to clauses (a) and (b). Since the main task before us is to determine the exact scope and effect of those two provisos, it is necessary to extract them in full. They read: "Provided that nothing contained in sub-rules (a) and (b) above shall be deemed to have superseded the orders of the Travancore-Cochin Government in R. Dis. No. 8207150/ CS, dated 7th May 1951 as subsequently clarified in respect of any person who was a member of any service on the date of coming into force of these Rules: Provided further that the above said order of the Travancore-Cochin Government as subsequently clarified shall also be applicable to the persons appointed in the State of Kerala before the coming into force of these Rules." 9. The second proviso was added by the amendment introduced on 15th November, 1972. Its effect is only to render the provisions of the T. C. Government order dated 7th May 1951 applicable also to persons appointed into Government service in the State of Kerala during the period from 1st November 1956 to 17th December 1958. The first proviso lays down that nothing contained in sub-rules (a) and (b) of R.27 will affect the continued operation of the T. C. Government order dated 7th May 1951 in respect of persons who were already in service on 17th December 1958 when the rules came into force and were governed by the said order; in other words the said proviso does nothing more than merely save the continued applicability of the provisions of G. O. dated 7th May 1951, as subsequently clarified, in respect of persons who were members of any service on the date of the coming into force of the K. S. S. R. and to that limited extent it permits a deviation from the principles for reckoning of seniority laid down in sub-rules (a) and (b) of R.27. The content of the G. O. dated 7th May 1951 or the extent of its applicability are in no way altered by the 1st proviso which merely preserves the status quo ante in regard to the effective operation of the said G. O. It is this view that Isaac, J. has expressed in O. P. No. 4030 of 1970 and we are in respectful agreement with the same. 10. By the second proviso the G. O. dated 7th May 1951 has been made applicable also to persons appointed into Government service in the State of Kerala between 1st November 1956 and 17th December rules (a) and (b) of R.27 the principle embodied in the G. O. dated 7th May 1951 as subsequently clarified will continue to apply in respect of persons who were allotted to Kerala from the service of the T. C. Government and also those recruited into Government service during the period between 1st November 1956 and 17th December 1958. The two provisos do not in any manner alter the scheme or content of the said Government order. 11. We shall now examine the scope of the Government order dated 7th May 1951 as subsequently clarified by the State Government. Ext. P-4 is a copy of the said order. R.1 to 4 laid down in Ext. P-4 are alone relevant for our present purpose and they read as follows: 1. Where it is laid down that a person should pass a test or tests to qualify himself for a higher grade or post, preference should be given to those who have passed the test or tests in making promotion to that higher grade or post whether in an officiating or substantive capacity. 2. If a person with the required test qualification is not available, for promotion to the grade or post which requires the qualification, the senior most person in the lower grade should be promoted. 3. In cases were a senior is passed over for want of test qualification and a junior with such qualification is promoted, the junior will not be liable for reversion to give place to the senior so long as there is a vacancy in the higher grade or post against which the junior can continue without break. 3. In cases were a senior is passed over for want of test qualification and a junior with such qualification is promoted, the junior will not be liable for reversion to give place to the senior so long as there is a vacancy in the higher grade or post against which the junior can continue without break. But if the junior riverts for want of vacancy in the higher grade or post, and if by the time another vacancy in the higher grade or post arises and the senior acquires the test qualification, the senior with the test qualification should be preferred for promotion. 4. Notwithstanding the provisions contained in R.3, a person who was superseded by his junior for want of test qualification will not lose his claim for confirmation in the higher grade or post, if, by the time the permanent vacancy arises, the senior person passes the test". Difficulties and doubts seem to have arisen regarding the mode of implementation of the above principles and hence a detailed clarification was issued by the T.C. Government as per Order No. 6-14870/52/CS. dated 4th January 1954 (Ext. P-5). By that order it was made clear that a senior without test qualification who was superseded for promotion to the next higher category by a junior with test qualification can regain his seniority over such junior in the higher category on the senior getting promoted after acquisition of test qualification unless by that time the junior has been confirmed in the higher category. This principle of restoration of seniority was applicable to all the personnel in the service of the T. C. Government as on the date of formation of the Kerala State and it contained to apply to them even thereafter by virtue of the proviso to S.115(7) of the States Re-organisation Act. The rule had, however, no application to persons allotted to the service of the Kerala State from the former Madras State. Since after 1st November 1956 the personnel working in almost every department of the Kerala Government consisted of persons allotted from the erstwhile Travancore-Cochin and Madras services of whom only the former group was governed by the T. C. Government order dated 7th May 1951 serious difficulties were encountered in the matter of giving effect to the principle of restoration of seniority laid down in the said Government order. To get over those difficulties a further clarification was issued by the Government of Kerala in a memorandum dated 26th July, 1961 (Ext. P-3). By the said Memorandum the Government laid down in detail the principles to be followed in giving effect to the benefit of restoration of seniority to persons governed by the G.O. dated 7th May 1951. In the opening sentence of that order it was categorically stated that persons appointed into service on or after 17th December, 1958 will be governed only by the principle laid down in R.27(a) of the Kerala State and Subordinate Service Rules for the determination of their seniority. It was further declared in Para.2 of Ext.P-3 that the benefit of restoration of seniority could be claimed only by Travancore-Cochin officers (including those appointed by the Kerala Government during the period from 1st November 1956 to 16th December 1958). In Para.4 of Ext. P-3 the principles laid down in the order were explained with aid of the illustrations and it has been made very clear that the personnel allotted from Madras are not liable to surrender their ranks in favour of any of the superseded seniors, since the former are not governed by the G. O. dated 7th May 1951. 12. On a combined reading of Exts. P3 and P4 it is obvious that the scheme of the order dated 7th May 1951 as subsequently clarified by the Government is only to provide that a senior hand governed by the said order, who, for want of test qualification, was superseded by a junior with test qualification governed by the said order can regain his seniority over such junior on the former's acquisition of the test qualification and getting promoted to the higher category before the junior gets confirmed therein. 13. The effect of the 1st proviso to R.27 being only to save the operation of G.O. dated 7th May 1951 as subsequently clarified, it only preserves in favour of persons who were in service prior to 27th December 1958 and who were governed by the G. O. dated 7th May 1951, the benefits which they were entitled to under the said G. O. as subsequently clarified by Ext. P-3, namely, the right to get a restoration of their seniority over the junior hands governed by the said G. 0. P-3, namely, the right to get a restoration of their seniority over the junior hands governed by the said G. 0. On first principles also, it seems to us to be incontrovertible that any right conferred by a Government Order for restoration of seniority, which necessarily involves a corresponding deprivation of the seniority or rank of another, can be claimed and enforced only as against a person who is governed by the said order. The provisions of any such government order cannot adversely affect the rights of any person in respect of whom the order has no application. It is this principle that has been recognized and applied by the State Government when it issued the clarification as per Para.4 of the order Ext. P-3. 14. For the reasons stated above, we are in respectful agreement with the view expressed by Isaac, J. in the judgment in O. P. No. 4030 of 1970 that the rule of restoration of seniority laid down in the Government Order dated 7th May 1951 can be applied only as against persons, who are governed by the said order. With respect we are unable to agree with the observation of Nambiyar, J. that it is no answer for a person to say that as he is not governed by the Government Order dated 7th May 1951 the same cannot be applied against him. We are afraid that in making the said observation due note has not been taken of the clarification issued by the Government itself as per Ext. P-3 dated 26th July 1961. The 1st proviso to R.27 has saved only the operation of the Government Order dated 7th May 1951 as subsequently clarified. It has been made very clear by the Government itself in Ext. P-3 that the rule for restoration of seniority is to be given effect to only in such a way as not to affect the rights of persons, who are not governed by the G. O. dated 7th May 1951. We are, therefore, constrained to hold that the judgment in O. P. No. 5142 of 1970 cannot be regarded as having laid down the correct law. 15. We are, therefore, constrained to hold that the judgment in O. P. No. 5142 of 1970 cannot be regarded as having laid down the correct law. 15. In the light of the preceding discussion it must follow that since the petitioners were recruited into service only subsequent to 17th December 1958, they are entitled to have their seniority in the Upper Division category determined on the basis of R.27 (a) with reference to the dates of their regular promotions to the said category. Respondent Nos. 3 and 4 have no right to get a restoration of their seniority over the petitioners in enforcement of the provisions of the G. O. dated 7th May 1951, since the petitioners are not governed by the said order. The petitioners' allegation that respondents 3 and 4 have been promoted as Head Clerks on the assumption that they are entitled to regain their seniority over the petitioners in the Upper Division category on the application of the principle laid down in G. O. dated 7th May 1951 has not been specifically denied in the counter affidavit filed on behalf of the first respondent. In the light of what we have stated above it is clear that the said assumption is erroneous and illegal. There will, therefore, be a direction to respondents 1 and 2 to treat the petitioners as seniors in relation to respondents 3 and 4 in the Upper Division category and to determine afresh their claims for promotion to the category of Head Clerks based on such seniority. The second respondent should conduct a review of the promotions already effected to the category of Head Clerks and pass final orders in the matter within two months from today. The Original Petition is allowed to the extent indicated above. The parties will bear the respective costs.