JUDGMENT P. Subramonian Poti, J. 1. This batch of 23 Original Petitions has come up posted before the Full Bench because of the importance of the questions involved in these cases. Common questions arise and hence the petitions have been heard together. 2. Some of the petitioners in these cases challenge proviso (3) to R.27(a) and (b) of the Kerala State and Subordinate Services Rules, 1958 (hereinafter referred to as the Rule for the sake of convenience). Some others challenge proviso 2 to R.27(a) and (b) of the rule while some challenge both the provisos. At the hearing challenge was attempted against the 1st proviso too. Though in some of these petitions there is no direct challenge to these provisos it is contended by the petitioners therein that the provisos are of no application to them. Whether the above said provisos are valid and applied to the petitioners is the main question that calls for decision in these cases. To understand the background of this challenge it may be necessary to make a brief historical narration of the circumstances leading upto the challenge. 3. When the State of Kerala was formed by the provisions of the States Reorganisation Act, 1956, it consisted of the territories of the erstwhile States of Travancore - Cochin and Malabar which was part of the State of Madras. Proviso to S.115(7) of the States Reorganisation Act guaranteed the continuance of service conditions in the case of the allotted personnel and such service conditions were not to be varied to their disadvantage except with the previous approval of the Central Government. In the State of Travancore - Cochin there was in force G.O. dated 7th May 1951, as subsequently clarified, the scope of which had arisen for examination in earlier decisions of this Court. Ext. P-1 in O.P. 5300 of 1975 (the reference hereafter will be to the exhibits in the said Original Petition except where it is otherwise necessary) is the copy of the above Government order dated 7th May 1951. Clause.1 to 4 of that order alone may be relevant for our purpose and they read as follows: "1. Ext. P-1 in O.P. 5300 of 1975 (the reference hereafter will be to the exhibits in the said Original Petition except where it is otherwise necessary) is the copy of the above Government order dated 7th May 1951. Clause.1 to 4 of that order alone may be relevant for our purpose and they read as follows: "1. Wherever 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 seniormost person in the lower grade should be promoted. 3. In cases where a senior is passed over for want of the 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 reverts 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." Doubts having arisen in the matter of application of Ext. P-1 order these were clarified by Government proceedings dated 4th January 1954, copy of which has been produced as Ext. P-2. The above said rules recognised the right of a senior without test qualification superseded for promotion to the next higher category by his junior with test qualification to regain seniority over such junior in the higher category on the promotion of the senior after his acquisition of test qualification unless by that time the junior has been confirmed in the higher category. This rule was applicable to all the personnel in service with the Travancore - Cochin Government and by reason of the proviso to S.115(7) of the States Reorganisation Act, this continued to apply to them even after 1st November 1936. The persons allotted from Madras were not governed by any such rule. The Kerala State and Subordinate Services Rules came into force on 17th December 1958. The said rules defined the principle of seniority in R.27. Until Government framed rules to apply uniformly to those in service interim arrangement had necessarily to be made in regard to those appointed to the State service after 1st November 1956. G.O. No. S (D) 2-43405/56/P.D., dated 25th February 1957 was pasted by the Government evidently intended to meet this, among other things. That Government order read: "Consequent on the Reorganisation of the States from 1st November 1956, the question of unifying service rules, Departmental Manuals, Code of Instructions etc., applicable to the Officers of the Kerala State has been engaging attention of Government and action in this regard is being taken. However, as an interim arrangement, Government are pleased to order that every officer in the service of the new State will be bound by the Service Rules of the State of Travancore - Cochin or Madras as the case may be, to which he belonged prior to 1st November 1956 until common service rules are framed and issue I. Persons who are newly appointed on or after 1st November 1956 will be governed by the T.S.R. till unified rules are issued. The Finance Department is requested to take early action for unifying service regulations, Financial and Account Code etc." The Government Order in terms made only the T.S.R. applicable to those appointed after 1st November 1956. 'T.S.R.' meant the Travancore Service Regulations. On the assumption that this enabled application of all the rules applicable to the Travancore - Cochin personnel, including the Government Order Ext. P-1 as subsequently clarified, those were being applied to those appointed in the Kerala State after 1st November 1956. But as a matter of fact the Travancore Service Regulations did not have any reference to the Government Order dated 7th May 1951 and therefore if the provisions of the T.S.R. were to be the only rules applicable that would not render Ext. P-1 applicable to those appointed in Kerala State after 1st November 1956. But as a matter of fact the Travancore Service Regulations did not have any reference to the Government Order dated 7th May 1951 and therefore if the provisions of the T.S.R. were to be the only rules applicable that would not render Ext. P-1 applicable to those appointed in Kerala State after 1st November 1956. While so, on 17th December 1958, R.27 of the Kerala State and Subordinate Services Rules became operative. Sub-r.(a) of R.27 provided 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. By a Government memo dated 26th July 1961 and another dated 15th September 1961 the Government ordered that persons appointed in the Malabar area from 1st November 1956 to 16th December 1958 would be governed by the Travancore - Cochin Rules in the matter of promotion and their inter se seniority. By G.O. Ms. 565, dated 23rd October 1952 a proviso was incorporated in R.27 as a proviso to clauses (a) and (b) of the said rule. That proviso read: "Provided that nothing contained in sub-rule? (a) and (b) above shall be deemed to have superseded the orders of the Travancore Cochin Government in R. Dis. No. 8207/50/50/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." The Government seems to have understood the said proviso as enabling the extension of the application of G.O. dated 7th May 1951 as subsequently clarified not only to those appointed prior to 1st November 1956 in Travancore - Cochin but also to persons who were appointed to the State after 1st November 1956 till the date of coming into force of the Rules. Evidently that was because it was assumed by the Government that they were persons to whom the order dated 7th May 1951, Ext. P-1, would apply by reason of the Government Order dated 25th February 1957 already adverted to as well as Government memos dated 26th July 1961 and 15th September 1961 to which also reference has been made earlier. Evidently that was because it was assumed by the Government that they were persons to whom the order dated 7th May 1951, Ext. P-1, would apply by reason of the Government Order dated 25th February 1957 already adverted to as well as Government memos dated 26th July 1961 and 15th September 1961 to which also reference has been made earlier. The consequence was that a person appointed prior to 17th December 1958 but after 1st November 1956 was given seniority by way of restoration of his rank over his juniors appointed subsequent to 17th December 1958 despite the fact that his juniors had passed the test qualification earlier and had been promoted on the basis of such qualification. Whether persons appointed after 1st November 1956 were entitled to the benefit of such restoration was the question raised before this Court in O.P. 918 of 1969. The matter came up before a Division Bench in Joseph v. State of Kerala ( 1972 KLT 45 ). This Court pointed out that the Government Order dated 25th February 1957 made only T.S.R. applicable to those appointed after 1st November 1956 and that would not mean that the Government Order dated 7th May 1951 had been made applicable to them by any order. It was also found that the Government memos dated 26th July 1961 and 15th September 1961 were mere executive orders and would not operate to vary the provision in R.27 which evidently adopted length of service in a class, category or grade to determine the seniority for the purpose of promotion under R.28(b)(ii) of the rules. Consequence was that the benefit of the rule of restoration of seniority contemplated by Ext. P-1 was confined to those who were appointed in the Travancore - Cochin State prior to 1st November 1956. 4. It would appear that the Government wanted the benefit of Ext. P-1, as subsequently clarified, to be extended to those who were appointed prior to the coming into force of the Kerala State and Subordinate Service Rules. There must be some rule or other to govern them, either the rule applicable to the Travancore - Cochin personnel or that applicable to those allotted from Madras or some other proper rule. P-1, as subsequently clarified, to be extended to those who were appointed prior to the coming into force of the Kerala State and Subordinate Service Rules. There must be some rule or other to govern them, either the rule applicable to the Travancore - Cochin personnel or that applicable to those allotted from Madras or some other proper rule. Evidently Government felt that it would be proper to extend to them also the rules that were in force in a large part of the territory of the State of Kerala, those which were in force in Travancore - Cochin. But whatever the intention of Government was that was not effectively carried out as found by the judgment in Joseph v. State of Kerala ( 1972 KLT 45 ). The decision in Joseph's case was rendered on 17th November 1971. Evidently to meet the situation arising out of the said decision Government incorporated an amendment to R.27(a) and (b) by the addition of the second proviso which read as follows: " 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. This amendment shall be deemed to have come into force with effect on and from 17th December 1958." This was. so inserted by G.O.P. 426/PD., dated 15th November 1972 published in gazette dated 21st November 1972. But the amendment was to come into effect retrospectively from 17th December 1958. The consequence was that it was as if the rule of restoration of seniority was applicable to those appointed till 17th December 1958 ever since the coming into force of the rules. 5. The same attack as was made by the petitioners in Joseph v. State of Kerala ( 1972 KLT 45 ), was made by some other petitioners in O.P. 4590 of 1972 which had been filed prior to the amendment to R.27 of the rules by incorporation of the second proviso and which was pending when the second proviso came into force. That case was decided only on 21t October 1974. The petitioners therein contended that for the reasons which appealed to the Division Bench in Joseph's case (1972 K LT 43) they were entitled to succeed in that petition and they further contended that in any view the Government Order, Ext. That case was decided only on 21t October 1974. The petitioners therein contended that for the reasons which appealed to the Division Bench in Joseph's case (1972 K LT 43) they were entitled to succeed in that petition and they further contended that in any view the Government Order, Ext. P-1, would operate only inter se between those appointed prior to 17th December 1958 and not against those who were appointed in the Kerala State after 17th December 1958. Reliance by them on the decision in Joseph's case (1972 K LT 43) was of no assistance to them, for, by the incorporation of the second proviso the objection that it was only by executive orders that the benefit of Ext. P-1, as clarified, was extended to persons appointed after 1st November 1956 was effectively met. Hence the only plea that was left to the petitioners in O.P. 4590 of 1972 was that the second proviso was not to be applied as against those who entered service after the date of coming into force of the Kerala State and Subordinate Service Rules. A Division Bench of this Court on the decision reported in Sivaramakrishnan Nair v. State of Kerala (ILR 1975 (1) Ker. 445 = 1975 KLT 400 ), dealt with this plea. The Division Bench took notice of two opposing views taken on this question by two learned Judges of this Court. One of us, Gopalan Nambiyar, J. had taken the view that the benefit of the restoration rule would be available even as against those appointed on or after 17th December 1958. The contrary view had been taken by Isaac, J. The Division Bench appears to have been persuaded 10 accept the view expressed by Isaac, J. in O.P. 4030 of 1970. Our learned brother Eradi, J., speaking for the Division Bench, said thus in the said decision at page 405: " 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.O. 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 recognised and applied by the State Government when it issued the clarification as per Para.4 of the order Ext. P-3." We may mention here that Ext. P-3 referred to by the learned Judges is the same as Ext. P-3 in O.P. 5300 of 1975 before us. We may, in passing, make mention here that the attention of the learned Judges of the Division Bench were not drawn to R.1 of Part II of the Kerala State and Subordinate Services Rules, which in the context of the contention before the learned Judges called for notice. The learned Judges found that the second proviso should be held to be applicable so as to confer benefits on those appointed prior to 17th December 1958, only as against those appointed prior to that date. In other words just as those allotted from Madras would not be affected by the rule of restoration of seniority envisaged in the Government Order dated 7th May 1951 because of the continuance of the rule governing them even after 1st November 1956 those appointed after 17th December 1958 would also not be affected by the rule of restoration of seniority. The result would be that a person appointed prior to 17th December 1958, otherwise entitled to restoration of seniority on promotion after test qualification under Ext. P-1 would not get seniority against any of his juniors appointed after 17th December 1958 and promoted on the basis of test qualification 6. It appears from the response of the Government to the decision of this Court that Government intended the rule of restoration to operate even against those appointed after 17th December 1958. The third proviso to R.27(a) and (b) of the Rules was incorporated by amendment by G.O. (P) No. 257/75/PD., dated 1st November 1975. It appears from the response of the Government to the decision of this Court that Government intended the rule of restoration to operate even against those appointed after 17th December 1958. The third proviso to R.27(a) and (b) of the Rules was incorporated by amendment by G.O. (P) No. 257/75/PD., dated 1st November 1975. The amendment was to be with retrospective effect and it was provided in the said order that "the amendment hereby made shall be deemed to have come into force with effect on and from the 17th December 1958." The third proviso so incorporated read: " Provided also that persons referred to in the foregoing provisos shall be entitled to restoration of seniority in accordance with the orders of the Travancore - Cochin Government referred to therein as subsequently clarified over those who have been appointed in the State of Kerala on or after the 17th day of December 1958." There is now no room to speculate on the meaning of the 3rd proviso. In unequivocal terms the Government order dated 7th May 1951, as subsequently clarified, has been made applicable as against those appointed on or after 17th December 1958 in the State of Kerala. 7. In some departments of the Government the finalisation of seniority lists were delayed because of the uncertainty created by the controversy over the application of the Government order dated 7th May 1951. Consequent upon the incorporation of provisos 2 and 3 Government seems to have attempted to finalise the seniority lists in these cases, consequent on which there were orders of reversion or threat of reversion of those who had been promoted earlier on the strength of their possession of test qualifications. It is such persons who had to face reversion or threat of reversion that have now come up before us in this batch of petitions. The petitioners appointed after 17th December 1958 naturally challenge the 3rd proviso. Some of the petitioners whose appointments were prior to 17th December 1968 challenge the second proviso which confers the benefit of restoration of seniority on persons who were promoted subsequent to their promotion. Some of the petitioners challenge provisos 2 and 3. 8. The petitioners appointed after 17th December 1958 naturally challenge the 3rd proviso. Some of the petitioners whose appointments were prior to 17th December 1968 challenge the second proviso which confers the benefit of restoration of seniority on persons who were promoted subsequent to their promotion. Some of the petitioners challenge provisos 2 and 3. 8. The petitioners in O.P. 5300 of 1975, O.P. 5269 of 1975, O. P. 5598 of 1975, O. P. 5745 of 1975, O.P. 5 of 1976, O.P. 94 of 1976 and O.P. 5277 of 1976 are persons appointed in the service of the Kerala State after 17th December 1958. All of them have been promoted as Deputy Tahsildars and they challenge the 3rd proviso to R.27(a) and (b) of the rules evidently because proviso; 1 and 2 operating against them by reason of the third proviso is said to cause their reversion to give place to those who have been superseded by them. The 4th petitioner in O.P. 3742 of 1975 is also a person appointed after 17th December 1958 in the Kerala State, but he challenges the second proviso. Petitioners 3 to 6 in O.P. 3727 of 1975 are those appointed subsequent to 17th December 1958. They attack the third proviso, on the application of which, they are sought to be reverts d from the post of Deputy Tahsildars. The petitioners in O.P. 5726 of 1976 are also persons appointed after 17th December 1958, but they do not attack the proviso, but contend that the 3rd proviso will not be applicable to them. Petitioners in O.P. 1624 of 1975 and O.P. 1508 of 1975 are also persons appointed in the service of the Kerala State after 17th December 1958. The petitioner in O.P. 1624 of 1975 is now a Junior Superintendent in the Sub Treasury. The petitioner in O.P. 1508 of 19/5 is now Section Head of the District Treasury, Trichur. These petitioners contend that the provisos are not applicable to them. The petitioner in O.P. 1624 of 1975 is now a Junior Superintendent in the Sub Treasury. The petitioner in O.P. 1508 of 19/5 is now Section Head of the District Treasury, Trichur. These petitioners contend that the provisos are not applicable to them. Petitioners 1 to 3 in O.P. 3742 of 1976, the petitioner in O.P. 3715, the petitioner in O.P. 5333 of 1975, the petitioner in O.P. 3595 of 1975, petitioners 1 and 2 in O.P. 3727 of 1975, petitioners in O.P. 2628 of 1975, petitioners in O.P. 1676 of 1977, the petitioners in O.P. 3726 of 1975, the petitioners in O.P. 4098 of 1975 are all persons appointed in the Kerala State prior to 17th December 1958 but after 1st November 1955. They have also challenged the provisos. Some attack the 2nd, some the 3rd and others both 2nd and 3rd provisos. In O.P. 1447 of 1974 the petitioners are persons working in the Judicial Department. They were appointed as a Copyists and later as Clerks. Their appointment as lower division clerks was subsequent to 17th December 1958. As against them the rule of restoration of rank to the superseded seniors was applied by the High Court. They filed a review before the High Court. But they did not succeed. According to them despite, the proviso the seniority by reason of earlier appointment in the higher post must be recognised. In O.P. 3726 of 1975 there is also a prayer for a mandamus directing confirmation of the petitioner or directing his appointment as a full member in the service in the post of upper division clerk in terms of R.24 of the Kerala State and Subordinate Services Rules. The petitioners in O.P. 1447 of 1974 as mentioned above are working in the Judicial Department, the petitioner in O.P. 1624 of 1975 is working as Junior Superintendent in the Sub Treasury and the petitioner in O.P. 1508 of 1975 is working as Section Head of the District Treasury, Trichur and others are working in the Revenue Department, some of them as Deputy Tahsildars and some of them have already been reverted from the post of Deputy Tahsildars. Before going into the special pleas in individual cases the question which arises in common in these cases could properly be considered and disposed of. 9. Before going into the special pleas in individual cases the question which arises in common in these cases could properly be considered and disposed of. 9. The main question urged by the petitioners in these cases concerns the validity of the retrospectively given to the second and third provisos by the rule making authority. It is in the exercise of the powers conferred by the Kerala Public Services Act, 1968, that provisos 2 and 3 to R.27(a) and (b) of the Rules were made. It is the contention of counsel for the petitioners that the rules cannot be retrospective to operate at any point of time earlier than the date of commencement of the Act itself. If the retrospectivity of the provisos is limited to the date of commencement of the Kerala Public Services Act, 1968, the petitioners are said to have no grievance, for, they got their promo ion from the lower division to the upper division earlier to the said date and such promotion would not be disturbed by application of the provisos. The other contention calling for consideration is whether the second and third provisos should be held to be unconstitutional as violating the equally clauses in Art.14 and 16 of the Constitution of India. Several approaches ate made by counsel in support of their case that these provisos are discriminatory. 10. We will now consider the contention concerning the scope of retrospectivity. The Kerala Public Services Act came into force on 17th September 1968. It was enacted to provide for rules of recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the State of Kerala. The Act has only three sections. S.2 and 3 of the Act read as follows:- "2. Regulation of recruitment and conditions of service.- (1) The Government may make rules (either prospectively or retrospectively) to regulate the recruitment, and conditions of service of persons appointed to public services and posts in connection with the affairs of the State of Kerala. 2. The Act has only three sections. S.2 and 3 of the Act read as follows:- "2. Regulation of recruitment and conditions of service.- (1) The Government may make rules (either prospectively or retrospectively) to regulate the recruitment, and conditions of service of persons appointed to public services and posts in connection with the affairs of the State of Kerala. 2. Every rule made under this section shall be laid as soon as may be after it is made before the Legislative Assembly while it is in session for a total period of fourteen days which may be comprised in one session or in two successive sessions, and if before the expiry of the session in which it is so laid or the session immediately following the Legislative Assembly agrees that the rule should be either modified or annulled, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule. 3. Continuance of existing rules.-- All rules made under the proviso to Art.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 Kerala and in force immediately before the commencement of this Act, shall be deemed to have been made under this Act as if this Act had been in force on the date on which such rules were made and shall continue to be in force unless and until they are superseded by any rules made under this Act." The Act did not make or purport to make any specific rules to govern the service, but left it to Government to make such rules. Prior to the commencement of the said Act rules were being made by the Governor under powers conferred on him by the proviso to Art.309 of the Constitution of India. That was so for more than 17 years until the Kerala Public Services Act came into force. Such rules would continue to be in force until replaced by law made by the legislature in that behalf. That was so for more than 17 years until the Kerala Public Services Act came into force. Such rules would continue to be in force until replaced by law made by the legislature in that behalf. But S.3 of the Kerala Public Services Act provided that these rules would be deemed to be rules made under the said Act as if the Act was in force when the rules were so made and further provided for continuance of those rules until they were superseded by rules made under the Act. S.2 (1) was enacted without the words "either prospectively or retrospectively" now found in the section. That was brought in by Amendment Act 5 of 1970. 11. The Kerala State and Subordinate Services Rules are those made by the Governor in exercise of his power under Art.309 of the Constitution. By virtue of S.3 of the Kerala Public Services Act, 1968 the said rules were to be deemed as have been made under the Act and the Act is to be deemed, for that purpose, to have been in force on 17th December 1958. The amendments to R.27(a) and (b) by way of adding on 2nd and 3rd provisos were made by the Government in the exercise of the power under S.2 of the Kerala Public Services Act. The question before us is whether the rule making authority exercising the power to make such rules under S.2 of the Kerala Public Services Act could make a rule to be operative prior to the date of commencement of the Act. It is said that this would not be possible and the amendments made must be restricted in their operation to the period commencing from 17th September 1968, the date of commencement of the Kerala Public Services Act, though the amendments purported to be retrospective from 17th December 1958. Reliance is placed by counsel for the petitioners on a recent Full Bench decision of this Court -- the same Bench as that hearing this case -- as supporting the plea urged by them as to the scope of retrospectivity. Reference is to the decision in State of Kerala v. Haridas ( 1978 KLT 238 ). We will presently examine that decision with reference to the case urged by counsel. Reference is to the decision in State of Kerala v. Haridas ( 1978 KLT 238 ). We will presently examine that decision with reference to the case urged by counsel. On the point directly arising for decision here a Division Bench has spoken against the case urged before us by counsel for the petitioners and that is in Daniel v. Board of Revenue (ILR 1975 (1) Ker. 434). It is said that the decision of the Division Bench is wrong and has to be overruled, particularly so in the light of the decision of the Full Bench adverted to above. 12. In exercise of the powers conferred by sub-s.(1) of S.2 of the Kerala Public Services Act read with S.3 thereof Government framed certain special rules for the Kerala Revenue Service by order dated 25th May 1974. The special rules purported to be issued in supersession of the earlier rules of 23rd June 1965, rules framed by the Governor in exercise of the powers under Art.309 of the Constitution. The special rules purported to be retrospective with effect from 25th September 1962. Those rules made under S.2 of the Kerala Public Services Act were said to operate from a date prior to the commencement of the Act and even a date prior to the commencement of the rules which they purported to supersede. It was the retrospectivity of the said special rules that came up for consideration before the Full Bench in State of Kerala v. Haridas ( 1978 KLT 238 ). In this context this Court said thus: "When rules are made under S.2(1) to supersede the rules made earlier under Art.309 of the Constitution it is not as if the earlier rules are thereby amended. They are superseded in accordance with S.3 by rules which get their validity because of S.2(1) of the Act." Again in the same decision we said thus: "In the case before us Ext. P-2 rules do not purport to amend the rules of 1965 made under Art.303. Ext. They are superseded in accordance with S.3 by rules which get their validity because of S.2(1) of the Act." Again in the same decision we said thus: "In the case before us Ext. P-2 rules do not purport to amend the rules of 1965 made under Art.303. Ext. P-2 purports to be in supersession of the rules of 1965." It is evident that we were dealing with a case of supersession of the rules deemed to be in operation as rules made under the Act by virtue of S.3 of the Act by a rule made under S.2 and we were not dealing with a case of amendment of a rule made under Art.309 of the Constitution by the Governor deemed by virtue of S.3 of the Act as made under the provisions of the said Act. This distinction, as we will attempt to show, is of relevance. 13. Sri S. Narayanan Poti, learned counsel for the petitioner in O.P. No. 5300 of 1975 who led the arguments on this part of the case, dealt with the scope of a legal fiction. A deeming provision in S.3 of the Kerala Public Services Act, it is said, must be read as limited to the purpose for which the legal fiction is created. The rules made under Art.309 of the Constitution are to be deemed to be those made under the Kerala Public Services Act only for a specific purpose and not for any purpose. The provision, according to learned counsel, is only intended to give legal validity to rules made under Art.309 and scope for their continued operation and therefore the fiction cannot be extended so as to enable the said rules to be deemed to be made under the Act for all purposes. Hence to deem the rules as made under the Kerala Public Services Act to enable them to be amended would not be within the scope of the legal fiction. It is further pointed out by learned counsel Sri S. Narayanan Poti that the addition of the words "and shall continue to be in force unless and until they are superseded" in S.3 of the Act is quite significant. Besides deeming the rules as rules under the Act there is an injunction to enable continuance of the rules as they were until such time as such rules were superseded by rules made under the Act. Besides deeming the rules as rules under the Act there is an injunction to enable continuance of the rules as they were until such time as such rules were superseded by rules made under the Act. It is therefore counsel's contention that if what is done is not a supersession of the rules, rules as they arc made under the proviso to Art.309 have to continue. 14. That legal fictions are created for some definite purpose and it will not be legitimate to travel beyond the purpose and read into the provision any other purpose how so ever attractive it may be is a principle well settled. Reference may be made to the decision of the Supreme Court in Bengal Immunity Co. v. State of Bihar (AIR 1955 SC 601) and in State of Tra-Co. v. S.V.C. Factory ( AIR 1953 SC 333 ). The Supreme Court in I. T Commr. Gujarat v. Vadilal ( AIR 1973 SC 1016 ) said at Para.12 referring to the scope of legal fiction thus: ".............. legal fictions are only for a definite purpose and they are limited to the purpose for which they are created and should not be extended beyond their legitimate filed." As pointed out by learned Advocate General in reply to the contention of the petitioners it is equally well settled that where legal fiction is created full effect must be given to it and it should be carried to its logical conclusion. The oft quoted observations of Lord Acquit of Bishopstone in the case in East End Dwellings Co. Ltd. v. Finsbury Borough Council (1952 AC 109) may be quoted here. "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs." 15. This puts us on an enquiry about the purpose of the legal fiction. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs." 15. This puts us on an enquiry about the purpose of the legal fiction. According to the learned Advocate Central the only purpose of deeming the rules under Art.309 of the Constitution made by the Governor as rules under the Kerala Public Services Act is to enable the amendatory process under the Act to be applied to the existing rules made by the Governor. It was not necessary to make any provision merely for giving legal validity to the rules made by the Governor by any provision such as that in S.3 of the Act. They are operative by their own force and they continue to be operative until they are replaced by rules made in that behalf by the legislature or its delegate. There would be no meaning in deeming those rules as made under the Act merely to give validity, for, such validity there was even without the provision in S.3 of the Act. Therefore to accept the arguments of counsel Sri Poti would mean that there was really no object sought to be served by the legal fiction. That may not be logical. On the other hand, it appears to be rational to view the provision as serving the purpose of enabling amendment of such rules under the Act. By deeming the rules under the proviso to Art.309 of the Constitution as those made under the Act and by further projecting the Act back to the respective dates on which those rules were made the amendment of those rules with retrospective effect from the dates on which the Act is deemed to have come into force for such limited purpose would be possible. There may be occasions for superseding certain of the rules made by the Governor and that could. De done by framing rules under S.2 of the Public Services Act purporting to supersede the existing rules. In such a case the rules which supersede the existing rules would be fresh rules and would continue to be operative as fresh rules made under the Act. De done by framing rules under S.2 of the Public Services Act purporting to supersede the existing rules. In such a case the rules which supersede the existing rules would be fresh rules and would continue to be operative as fresh rules made under the Act. In such cases the fresh rule could be operative only from the date of commencement of the Act as we observed in the Full Bench decision adverted to. But where the rule making authority does not purport to supersede a rule deemed to be made under the Act by reason of S.3 of the Act but only purports to amend such rule such amendment would be permissible. In that event the rule could be retrospectively amended to be operative as amended from the date on which the original rule which it purported to amend came into operation. That is because by reason of the legal fiction the Kerala Public Services Act is deemed to have been in force on the date the rule was so made by the Governor and if the purpose of the deeming is to enable the legislature to deal with such rules by way of amendment, alteration, modification or the like, consistent with that purpose the Act would be deemed to have been in operation on the date of framing of the rule by the Governor. In that event retrospectivity to the amendment can be from the date on which the rules were made. The Kerala State and Subordinate Service Rules having come into force on 17th December 1958 the Kerala Public Services Act is deemed to have been in operation on that date for the limited purpose of giving validity to such rules as under that Act. If so amendment to be retrospective from 17th December 1953 would be possible. 16. We are supported in our view as to the object of S.3 of the Act by the observations of the Supreme Court in D. S. Garewal v. State of Punjab ( AIR 1959 SC 512 ). In that case the Supreme Court was considering the provisions of the All India Services Act, 1951. 16. We are supported in our view as to the object of S.3 of the Act by the observations of the Supreme Court in D. S. Garewal v. State of Punjab ( AIR 1959 SC 512 ). In that case the Supreme Court was considering the provisions of the All India Services Act, 1951. S.4 of that Act provided- "All rules in force immediately before the commencement of this Act and applicable to an Ali India Service shall continue to be in force and shall be deemed to be rules made under this Act." Dealing with the plea that the Parliament did not even exercise the legislative function in enacting S.4 of the Act, the court said at Para.8 of the judgment thus: "Thus though S.4 appears on the face of it as one short section of four lines, it is in effect a statutory provision adopting all the rules which were in force at the commencement of the Act governing the recruitment and the conditions of service of the two All India Services. The section certainly lays down that the rules already in force shall be taken to be rules under the Act; but that was necessary in order to enable the Central Government under S.3 to add to alter, vary and amend those rules. There is no doubt, however, that S.4 did lay down that the existing rules will govern the two All India Services in the matter of regulation of recruitment and conditions of service, and in so far as it did so it determined the legislative policy and set up a standard for the Central Government to follow and formally enacted it into a binding rule of conduct. Further, by S.3 the Central Government was given the power to frame rules in future which may have the effect of adding to, altering, varying or amending the rules accepted under S.4 as binding." 17. We see no reason to overrule the decision in Daniel v. Board of Revenue (ILR 1975 (1) Ker. 434). We are in agreement with the views expressed by the learned Judges in that case. We see no reason to overrule the decision in Daniel v. Board of Revenue (ILR 1975 (1) Ker. 434). We are in agreement with the views expressed by the learned Judges in that case. A similar argument as to the scope of second proviso to R.27(a) and (b) was urged before the learned Judges and referring to S.2 and 3 of the Kerala Public Services Act the court said thus: "Power is conferred on the Government by S.2 to make rules regulating the recruitment and conditions of services of State Government servants either prospectively or retrospectively. Ordinarily, the said provision should be construed as enabling only the framing of such rules on a future date with retrospective effect from the date of commencement of the parent Act. This position is, however, materially altered by the provisions of S.3. By that section all rules already made under the proviso to Art.309 of the Constitution of India and in force immediately before the commencement of the Act with respect to persons serving in connection with the affairs of the State of Kerala are to be deemed to have been made under the Act, as if the Act had been in force on the date on which such rules were made. The clear intent and effect, of S.3 is that rules framed under the proviso to Art.30) of the Constitution which were applicable to the public services in the State of Kerala on the date of commencement of the Act arc all to be treated as rules which were framed under S.2 of the Act even on the dates on which they were originally issued, the Act being regarded for this purpose as having been in force on those relevant dates. When the legal fiction introduced by the deeming provision in S.3 is fully given effect to, as the court is bound to do in law, the Act is to be treated as having been in force when the Rules (K.S.S.R.) were promulgated under the proviso to Art.309 of the Constitution. S.2 and 3 of the Act have to be read in combination for understanding the real scopes and ambit of the power conferred by S.2 to make rules retrospectively. S.2 and 3 of the Act have to be read in combination for understanding the real scopes and ambit of the power conferred by S.2 to make rules retrospectively. The power conferred under S.2 will certainly include authority to amend the existing rules which under S.3 are to be deemed to have been made under the Act and the said power can be exercised with retrospective effect from the date of original promulgation of the Rules since the Act is to be deemed to have been in force on that date. In this view it is clear that the State Government was competent under S.2 of the Act 10 amend the provisions of R.27 of the rules with retrospective effect from 17th December 1938 on which date the rules were originally brought into force. We accordingly uphold the second proviso to R.27 introduced by the notification, dated 15th November 1 72. The contention advanced by the petitioners for challenging the validity of the said provision will stand rejected. " In incorporating provisos 2 and 3 to R.27(a) and (b) there was no supersession of any exiting rule made under Art.309 of the constitution. Existing rules were amended and such amendment would be possible by reason of the rule making power in S.2(1) of the Kerala Public Services Act. Such amendment purported to operate only from the date of commencement of the Kerala State and Subordinate Service Rules. That, for the reasons we have indicated, was within the scope of the rule making power. 18. According to the learned Advocate General the 3rd proviso was intended only to clarify the second proviso and even when the second proviso was brought into force the intention of the Government was to give effect to the first and second proviso as against those who had been appointed in the State of Kerala after 17th December 1958 also. But when the court said in the decision in Sivaramakrishnan Nair v. State of Kerala ( 1975 KLT 400 ) that the said provisos as they read, would not operate adversely against those who entered service after the commencement of the Kerala State and Subordinate Service Rules it was necessary for the State Government to clarify their intention and that was done by passing the third proviso. Evidently that appears to be the case. Evidently that appears to be the case. We have already quoted elsewhere the reasoning of the Division Bench in Sivaramakrishnan Nair v. State of Kerala ( 1975 KLT 400 ) as to why the provisos were to be held as not operative against persons appointed after 17th December 1958. The learned Judges in the earlier part of Para.13 of the judgment construed the first proviso as intended to give the right of restoration of seniority only as against these who would get the benefit of the Government order dated 7th May 1951. That this was not the intention of the proviso was clarified by the 3rd proviso. It was said by the Division Bench that the provisions of any such Government Order cannot adversely affect those in respect of whom the order had no application. Evidently the court had failed to notice R.1 of Part II of the Kerala State and Subordinate Service Rules. The rule provides that the rules in Part II shall apply to all State and Subordinate Services and the holders of all posts, whether temporary or permanent in any such service, appointed thereto before, or after the date on which the rules come into force as provided in sub-r.(b) of R.1 in Part I except to the extent otherwise expressly provided (a) by or under any law for the time being in force, or (b) in respect of any member of such service by a contract or agreement subsisting. R.27 must therefore apply to all persons in service irrespective of whether they were in service prior to 17th December 1958 or on after 17th December 1958. Such application may be to the advantage of some and to the disadvantage of others, but irrespective of that to all it applies. Of course, it is another question whether such consequence would in any way vitiate the rule. We are examining the validity of the same rule challenged as discriminatory in the course of this judgment. At the moment we are only on the construction of the rule. Plainly the rule is applicable to those in service except the specifically excluded class in R.1 of Part II. To that extent the decision of the Division Bench in Sivaramakrishnan Nair v. State of Kerala ( 1975 KLT 400 ) must be held to be not correct. 19. At the moment we are only on the construction of the rule. Plainly the rule is applicable to those in service except the specifically excluded class in R.1 of Part II. To that extent the decision of the Division Bench in Sivaramakrishnan Nair v. State of Kerala ( 1975 KLT 400 ) must be held to be not correct. 19. It follows from our discussion that in view of the specific provision in the 3rd proviso to R.27(a) and (b) of the rules, those who are entitled to the benefit of the Government Order, dated 7th May, 1951 as subsequently clarified are entitled to such benefit even as against those appointed in the Kerala State subsequent to the commencement of the Kerala State and Subordinate Service Rules on 17th December 1958 and the retrospectivity given to provisos 2 and 3 from 17th December 1958 is within the rule making power of the government. 20. Now we will come to the plea of discrimination. Several approaches have been made to the attack to the second and 3rd provisos by various counsel appealing for the petitioners. These are (1) it is by virtue of acquiring test qualification that a junior gets his promotion. Such test qualification is necessary for promotion. The senior is superseded by the junior only because when the question of promotion is taken up the senior, is not qualified. To restore seniority to him later would be to promote inefficiency and incompetency and therefore any rule providing for any such restoration would be discriminatory. (9) The G.O., dated 7th May 1951 itself must be deemed to have become obsolete and irrelevant when once the Kerala State and Subordinate Service Rules came into force because the said rules do not contemplate confirmation while the Government Order, dated 7th May 1951 gears the right of restoration to the date of confirmation of the juniors superseding the senior. (3) Even if confirmation is held to be an event contemplated by the Kerala State and Subordinate Services Rules, inasmuch as the right of restoration is geared to an uncertain event the first proviso must be considered to be discriminatory and therefore the other provisos must also be considered as discriminatory as they only extend the application of the first proviso. (4) There is no reason to discriminate between those appointed prior to 17th December 1958 and those on or alter 17th December 1958 and subject the latter class to a disability without any corresponding benefit. This is more so as between those appointed between 1st November 1956 and 17th December 1958 on the one hand and those appointed on or after 17th December 1958. 21. In lower rungs of service seniority is often adopted as the basis for promotion. When the Travancore and Cochin States were integrated to form the Travancore - Cochin State in 1949, the Government seems to have felt the need for continuation of the rule then in force in the State of Travancore that a senior should not lose his right to seniority in the higher category on promotion merely because he is superseded by the junior who is promoted earlier on account of the acquisition of special qualification, such as passing tests prescribed for such promotion. To say that such a rule would promote incompetency or inefficiency may not be quite true or realistic. The fact that a senior takes more time than the junior to acquire test qualification does not mean that he would be less efficient in his job in the higher category when promoted. His longer experience by virtue of his seniority might perhaps favourably reflect on his efficiency in his work. Anyhow that is how the matter has been viewed in the erstwhile Travancore - Cochin State and the rule has been in force from 1951. That rule is said to have been in force in the Travancore State earlier. We cannot assume, without anything more, that the rule would be unreasonable for the reason that efficiency is given the go bye and seniority alone made the criterion in the matter of seniority in the next higher post. The degree of experience is as relevant a factor as possession of test qualification particularly in the lower grades in the service. We may in this context quote a passage from the decision of the Supreme Court reported in San Ram v. State of Rajasthan ( 1968 (1) SCR 111 at 122) The Court said thus: "The question of a proper promotion policy depends on various conflicting factors. We may in this context quote a passage from the decision of the Supreme Court reported in San Ram v. State of Rajasthan ( 1968 (1) SCR 111 at 122) The Court said thus: "The question of a proper promotion policy depends on various conflicting factors. It is obvious that the only method in which absolute objectivity can be ensured is for all promotions to be made entirely on grounds of seniority. That means that if a post falls vacant it is filled by the person who has served longest in the post immediately below. But the trouble with the seniority system is that it is so objective that it fails to take any account of personal merit. As a system it is fair to every official except the best ones; an official has nothing to win or lose provided he does not actually become so inefficient that disciplinary action has to be taken against him. But, though the system is fair to the officials concerned, it is a heavy burden on the public and a great strain on the efficient handling of public business. The problem therefore is how to ensure reasonable prospect of advancement to all officials and at the same time to protect the public interest in having posts filled by the most able men? In other words, the question is how to find a correct balance between seniority and merit in a proper promotion policy. In this connection Leonard. D. White has stated as follows:- 'The principal object of a promotion system is to secure the best possible incumbents for the higher positions, while maintaining the morale of the whole organisation. The main interest to be served is the public interest, not the personal interest of members of the official group concerned. The public interest is best secured when reasonable opportunities for promotion exist for all qualified employees, when really superior civil servants are enabled to move as rapidly up the promotion ladder as their merits deserve and as vacancies occur, and when selection for promotion is made on the sole basis of merit. For the merit system ought to apply as specifically in making promotions as in original recruitment. x x x x x x x x x x x x Employees often prefer the rule of seniority, by which the eligible longest in service is automatically awarded the promotion. For the merit system ought to apply as specifically in making promotions as in original recruitment. x x x x x x x x x x x x Employees often prefer the rule of seniority, by which the eligible longest in service is automatically awarded the promotion. Within limits, seniority is entitled to consideration as one criterion of selection. It tends to eliminate favouritism or the suspicion thereof, and experience is certainly a factor in the making of a successful employee. Seniority is given most weight in promotions from the lowest to other subordinate positions. As employees move up the ladder of responsibility, it is entitled to less and less weight. When seniority is made the sole determining factor, at any level, it is a dangerous guide. It does not follow that the employee longest in service in a particular grade is best suited for promotion to a higher grade; the very opposite may be true.' (Introduction to the Study of Public Administration, 4th Edn., pp. 380, 383). As a matter of long administrative practice promotion to selection grade posts in the Indian Police Service has been based on merit and seniority has been taken into consideration only when merit of the candidates is otherwise equal and we are unable to accept the argument of Mr. N. C. Chatterjee that this procedure violates, in any way, the guarantee under Art.14 and 16 of the Constitution." 22. Possibly the inspiration for the argument for learned counsel for the petitioners is an observation of Raman Nayar, C. J., in the full Bench Decision in Raghavan Nair v. State Insurance Officer ( 1971 KLT 583 ). One of us was a party to that decision. In the course of the judgment Raman Nair C. J., speaking for the Full Bench said, while referring to the Government Order dated 7th May 1951, thus at Para.14: "14. We might mention that seniority in the category of superintendents is in no wise affected by the proviso to sub rule (b) of R.27. The orders of the Travancore - Cochin Government in R Dis. We might mention that seniority in the category of superintendents is in no wise affected by the proviso to sub rule (b) of R.27. The orders of the Travancore - Cochin Government in R Dis. No. 8207/50/CS, dated the 7th May 1951 (as subsequently clarified) referred to therein amount to this: If a member of a service is overlooked for promotion to a higher category on the ground that he has not passed an obligatory test, with the result that a junior of his in the lower category supersedes him and secures the promotion, the overlooked senior would become senior in the higher category, to the superseding junior on the former securing the promotion after qualifying himself, provided the latter has not been confirmed meanwhile in the higher category. (This, it is said -- and not without force -- is really to encourage incompetence and idleness at the expense of ability and diligence; but so long as the rule itself has not been attacked, that is not a matter for consideration by us)." The words in parenthesis "and not without force" are only by way of a passing observation and evidently there was no assessment of any contention by the Full Bench in making that observation. We have directly to deal with that contention here and we do not think that we will be justified in holding that the acceptance of rule of seniority to the extent it confers a right of restoration to the superseded senior in the higher category subject to specified conditions is unreasonable and liable to be held as discriminatory. 23. Ext. P-1 rule as subsequently clarified sets a limit on the right of restoration of the seniority. If, by the time the senior gets his promotion on his acquisition of test qualification the Junior promoted earlier is seen to be confirmed in the higher post the senior will not be restored to his original seniority over the junior who has superseded him. This, it is said, is not a situation which can be envisaged under the Kerala State and Subordinate Services Rules since the said rules do not contemplate any confirmation. If no such confirmation is envisaged under the rules now in force the restoration would be possible without any limit of time. That is a contingency not envisaged even in Ext. This, it is said, is not a situation which can be envisaged under the Kerala State and Subordinate Services Rules since the said rules do not contemplate any confirmation. If no such confirmation is envisaged under the rules now in force the restoration would be possible without any limit of time. That is a contingency not envisaged even in Ext. P-1 rule and for that reason the application of the rule would according to the petitioners, be unreasonable. The rule in Ext. P-1 G.O., it is said, must be found really to have become obsolete when once the Kerala State and Subordinate Service Rules came into force on 17th December 1958 and if so to attempt to apply it nevertheless would not be permissible. According to the learned Advocate General it is not correct to say that the concept of confirmation is foreign to the Kerala State and Subordinate Service Rules. It is true that the term "confirmation" does not as such find a place in the rules. But the same idea is conveyed by R.24 of the rules and therefore confirmation is to be taken as conferment of full membership of the service in the class or category for which a person is selected. Confirmation was particularly of relevance in the erstwhile Cochin State as seniority in the Cochin State depended not upon date of appointment to a class, category or grade but the date of confirmation. Confirmation of a civil servant in Travancore - Cochin State depended upon the availability of a permanent post for substantive appointment to accommodate the civil servant. There was no rule of probation in the Travancore - Cochin State. When Kerala State and Subordinate Service Rules came into force it contemplated a period of probation for an appointee. The rules prescribed probation and at the end of the prescribed or extended period of probation, as the case may be, the appointing authority was to consider the probationer's suitability for full membership of the service, class or category for which he was selected. R.20(b) of the rules provide that if the appointing authority decides that a probationer is suitable for such membership, it shall, as soon as possible, issue an order declaring the probationer to have satisfactorily completed his probation. R.20(b) of the rules provide that if the appointing authority decides that a probationer is suitable for such membership, it shall, as soon as possible, issue an order declaring the probationer to have satisfactorily completed his probation. It had also power to extend the probation to enable a probationer to acquire special qualification or pass the prescribed tests, or, as the case may be, to enable the appointing authority to decide whether the probationer is suitable for full membership or not. Merely because the probationer satisfactorily completed the probation he would not be a full member of the service. He would be an approved probationer found suitable for full membership and he would have to await appointment as a full member which, under R.24 of the rules, was to be made at the earliest possible opportunity, in any substantive vacancy which may exist or arise in the permanent cadre of such class or category. If such vacancy existed from a date previous to the issue of the order of appointment, an approved probationer may be so appointed with retrospective effect from the date or. as the case may be, from any subsequent date from which he was continuously on duty as a member of the service in such class or category or in a higher class or category. This meant that approved probationers got full membership as and when a substantive vacancy in a permanent post was available to absorb them as full members. Confirmation conveys the same idea as that of full membership with the only difference that under the Kerala State and Subordinate Service Rules a person could become a full member only after he becomes an approved probationer even if a substantive vacancy in a permanent post is available when he is appointed. Such probation being not required prior to the commencement of the Kerala State and Subordinate Service Rules, confirmation would be possible whenever there was a substantive vacancy in a permanent post to which a person could be appointed by virtue of his title to it. In these circumstances we are inclined to accept the case urged by learned Advocate General that the provision in Ext. In these circumstances we are inclined to accept the case urged by learned Advocate General that the provision in Ext. P-1 as subsequently clarified that the restoration of the seniority would be permissible till the date of confirmation of the junior in the higher post has not lost its relevance after the coming into force of the Kerala State and Subordinate Service Rules. 24. Counsel Sri V. Sivaraman Nair, appearing for some of the petitioners in these cases has a further plea that at any rate confirmation must be taken to be an uncertain event, that even where substantive vacancies in permanent posts are available the State Government takes its own time to confer full membership and therefore to gear the right of restoration to such an uncertain event would itself be an unreasonable principle. It is said that the rule, in so far as it envisages such a situation, must be held to be bad. It is sufficient to point out that R.24 obliges the State Government to appoint an approved probationer as full member 'at the earliest possible opportunity'. This is a statutory obligation of the Government and if such obligation is violated by the Government that may be a cause for complaint. The rule cannot be attacked as unreasonable for that reason. The event is not uncertain in any sense. An outside limit on the right of the senior to seek restoration is placed by Ext. P-1 rule as subsequently clarified so that a person who has obtained full membership should not be disturbed thereafter. The rule recognises in him the right not to be defeated by subsequent promotion of the senior. 25. Before parting with the part of the case we may advert to the decisions in State of Punjab v. Dharam Singh ( AIR 1968 SC 1210 ), Ramaswamy v. I. G. of Police ( AIR 1966 SC 175 ) and U. P. State v. Akbar Ali ( AIR 1966 SC 1842 ) referred to by learned Advocate General. Reference to these decisions is only to indicate that the concept of confirmation as equivalent to appointment as a full member is a familiar phenomena and is seen dealt with by other similar rules. 26. Reference to these decisions is only to indicate that the concept of confirmation as equivalent to appointment as a full member is a familiar phenomena and is seen dealt with by other similar rules. 26. The application of the provisions of the Government Order dated 7th May 1951 must necessarily be of some disadvantage to some of the persons in service if they are to operate to the advantage of some others. We have already held that the manifest intention of the Government as clarified by the third proviso is to confer the benefit of the said Government Orders on all those appointed prior to 17th December 1958 in the State of Kerala and those allotted from the State of Travancore - Cochin to whom the said orders were applicable even earlier and that this would operate against their own class as also those appointed on or after 17th December 1958. The only class of persons who would not be affected by the application of the Government Order are those allotted from the Madras State on 1st November 1956 since in their case they were entitled to protection of their service conditions in the Madras State by reason of the proviso to sub-s.(7) of S.115 of the States Reorganisation Act. In the case of those who were in service in the Travancore - Cochin State they were entitled to protection of their service conditions until these were changed with the concurrence of the Central Government and therefore the rules had to be kept alive till such time. Moreover this rule of benefit to them has stood the test of time. Possibly because of this the attack here has centred on the discrimination between the classes of persons appointed in the Kerala State between the dates 1st November 1956 and 17th December 1958 on the one hand and those appointed on or after 17th December 1958 on the other. It is said that there is no justification by way of historical or geographical reasons, to give preference to those appointed in the Kerala State prior to 17th December 1958 over those appointed thereafter. According to counsel for petitioners both the classes should be treated alike. They are similarly placed and dissimilar treatment which visits those appointed on or after 17th December 1958 with only adverse consequence must be held to be unreasonable and for that reason bad. According to counsel for petitioners both the classes should be treated alike. They are similarly placed and dissimilar treatment which visits those appointed on or after 17th December 1958 with only adverse consequence must be held to be unreasonable and for that reason bad. That geographical and historical reasons may justify treatment of a particular class of persons to their advantage is a settled rule and the learned Advocate General refers to the decision in State of Gujarat v. C. G. Desai, ( AIR 1974 SC 246 ) and State of Kerala v. N. M. Thomas ( AIR 1976 SC 490 ). It is not necessary to go further into these decisions, for counsel who attack the proviso also do not challenge this principle. Naturally so. But according to them the facts here do not justify a preferential treatment of those appointed prior to 17th December 1958 in the Kerala State. This plea cannot be properly appreciated divorced of the background in which such persons were given the benefit of the Government Orders in force in Travancore - Cochin prior to the States Reorganisation. We have already adverted to that in detail earlier in our judgment. On the coming into force of the Kerala State some rule or other had to govern those appointed in the State until the State framed unified rules for application in regard to all appointed thereafter. Such rules were the Kerala State and Subordinate Services Rules. The rules regarding promotion in the lower rungs of the service in Travancore - Cochin State and the Madras State were not uniform. Possibly because Travancore - Cochin covered a larger area of the State of Kerala or possibly because the rules in force in the Travancore - Cochin State covered a larger number of employees in the State of Kerala, Government thought of applying the Travancore - Cochin rules to those appointed in the Kerala State. That this was what was felt by the Government and orders were passed to implement their intention is evident from the conduct of the Government all along. That this was what was felt by the Government and orders were passed to implement their intention is evident from the conduct of the Government all along. They thought that the purpose would be achieved by making the T.S.R. applicable and it was by the decision of this Court in Joseph v. State of Kerala ( 1972 KLT 45 ) that they found that in regard to Government Order dated 7th May 1951 though their intention was that the said order must apply to those appointed to the Kerala State that was not reflected in their order. Hence came the second proviso. That it must be remembered, was only in 1972. All along ever since 1956, the assumption was that the orders in existence extended the application of all Travancore - Cochin rules including Ext. P-1 Government Order as subsequently clarified to those appointed after 1st November 1956 in the State of Kerala till 17th December 1958. In the various departments of the State promotions in service were regulated on this assumption. Almost all the Petitioners before us are from the Revenue Department and evidently the question has assumed importance in that department only because of the peculiar circumstances relating to that Department. A large number of posts have all along been treated in that department as temporary because of the very many phases of activities undertaken by that department which called for temporary posts for a long number of years. What is stated in regard to the Department of Revenue cannot be taken as illustrative of the entire service. We must bear that in mind. The second proviso to R.27(a) and (b) of the Rules was evidently incorporated to safeguard the interests of those appointed in the Kerala State till 17th December 1958 on the assumption that the Travancore - Cochin Rules were all along intended to apply to them. If there was a need for some rules to govern such persons and the rule in force in Travancore - Cochin was adopted so as to apply to them also it cannot be said that the rule in regard to them would be unreasonable. We do not think that we should, for the reason urged, strike down the rules as discriminatory. 27. We therefore hold that the attack to the provisos to R.27(a) and (b) on the ground that those were discriminatory must fail. 28. We do not think that we should, for the reason urged, strike down the rules as discriminatory. 27. We therefore hold that the attack to the provisos to R.27(a) and (b) on the ground that those were discriminatory must fail. 28. There was a complaint by some of the petitioners that in the application of rules to the petitioners there has been improper exercise. According to the learned counsel Sri S. Easwara Iyer, appearing for the petitioner in O.P. 4098 of 1975, confirmation within the meaning of Government Order dated 7th May 1951 as subsequently clarified must be taken to mean regularisation and if that is done petitioners in the said petition having been regularised in the Upper Division to which they had been promoted earlier and prior to the promotion of the seniors who sought to supersede the juniors no restoration would be possible. In other words according to learned counsel confirmation must be taken to be the same as regularisation. We do not agree. A person could be appointed to a post regularly or he can be appointed to a post temporarily. A temporary appointment is conceived in R.9(a)(1) of the Rules and a temporary promotion is envisaged in R.31(a)(1) of the rules. Temporary appointment or promotion does not confer any benefit to a civil servant other than that of the emoluments of the office and he would get other benefits only on regular appointment. A temporary appointee or a temporary promotee may be regularly appointed or promoted subsequently and sometimes with retrospective effect. Such regular appointment would take away the character of temporary appointment. A regular appointee has to undergo probation to become an approved probationer. On the competent authority being satisfied that he is suitable for full membership his probation would be approved. As and when a substantive vacancy in a permanent post is available he has to be appointed as full member. Then only there would be confirmation. Regularisation cannot be read to mean confirmation so as to defeat the right of the seniors for restoration with effect from the date the juniors are regularised in the promoted cadre. 29. As and when a substantive vacancy in a permanent post is available he has to be appointed as full member. Then only there would be confirmation. Regularisation cannot be read to mean confirmation so as to defeat the right of the seniors for restoration with effect from the date the juniors are regularised in the promoted cadre. 29. Sri S. A. Nagendran, counsel appearing for the petitioners in O. P. No. 2795 of 1975 and other cases brought to our notice that for the last more than 15 years a good part of the posts in the Upper Division in the Department of Revenue has been treated as temporary posts and despite the decisions of this Court calling upon the Government to consider whether these should not be made substantive, no action is being taken. In answer the learned Advocate General has explained this circumstance as peculiar to the Revenue Department where several activities had to be undertaken by that department requiring creation of several wings. These wings, it is said, cannot be taken to be a permanent feature of the department. Nevertheless it is stated that action is being taken to make as many posts as possible permanent so as to enable confirmation to be effected of those who are continuing without it for a long number of years. This is matter of policy for the Government to determine. It is for the Government decide how many posts in any department should be made permanent. The Government should no doubt approach the question in a realistic and sympathetic manner taking into account the consequences of keeping large number of posts temporary for years together. But we do not think that it would be possible for this Court to give any specific direction as to making any percentage of the posts treated as temporary now as permanent posts. 30. In the proceedings of Government dated 4th January 1954, Ext. P-2, clarifying the Government Order dated 7th May 1951 certain questions as to how the said Government Order should be applied were posed and answered. One of the questions and the answer to that is this: "supposing A, B and C are Clerks on Rs. 30.45 in the order of seniority and C who is the Juniormost is promoted to the grade of Rs. 45-75 by virtue of his test qualification. One of the questions and the answer to that is this: "supposing A, B and C are Clerks on Rs. 30.45 in the order of seniority and C who is the Juniormost is promoted to the grade of Rs. 45-75 by virtue of his test qualification. A question has been raised as to who should be promoted to a vacancy which arises subsequently on Rs. 80-120 if by that time both A and B have become qualified in tests." The answer is that "the seniormost hand A who is qualified on the date of occurrence of the vacancy on Rs. 80-120 should be promoted to the grade of Rs. 80-120 though it may apparently be a double promotion to him, but that should be deemed to have been caused by the special circumstance of the case." It is said that in some cases this rule has been applied by promoting Lower Division Clerks who have qualified by passing tests subsequently as Deputy Tahsildars based on their seniority as Lower Division Clerks. This though consistent with Ext. P-1 as clarified by Ext. P-2 would be against the provisions of the Kerala State and Subordinate Services Rules which calls for probation as an Upper Division Clerk before promotion as a Deputy Tahsildar and the special rules governing the Revenue Subordinate Services which require functioning for a specific period as Upper Division Clerk before promotion as Deputy Tahsildar. That this is so is not disputed by the learned Advocate General and according to him the application of Ext. P-1 rule as subsequently clarified does not enable promotion of a Lower Division Clerk as Deputy Tahsildar waiving the retirement of any special rule for a specific period of service in the Upper Division. In other words the application of the rules Exts. P-1 and P-2 cannot be without reference to the requirements of the Kerala State and Subordinate Services Rules or the special rules governing the parties. In cases where the contrary has been done, the government is, it is submitted by the learned Advocate General, bound to set it right. He assures that this would be done. This submission of learned Advocate General is recorded and the Government is directed to act taking due note of the submission. In the circumstances the petitioners are not entitled to any relief. The Original Petitions are dismissed subject to the observations made in the previous paragraph. He assures that this would be done. This submission of learned Advocate General is recorded and the Government is directed to act taking due note of the submission. In the circumstances the petitioners are not entitled to any relief. The Original Petitions are dismissed subject to the observations made in the previous paragraph. Parties will suffer costs. Gopalan Nambiar, C.J. 1A. I agree with the judgment on behalf of the Bench, of Poti, J., but desire to add a few words of my own. 2A. The attack is against the third proviso to R.27 of the Kerala State and Subordinate Service Rules introduced by an amendment dated 1st November 1975. Sri S. Narayanan Poti attacked the third proviso; Sri S. Easwara Iyer supported the third proviso, but contended that if the attack against it were to be upheld and that proviso were to be struck down, the second proviso must also go with it. 3A. The provisos have a history. The 'Restoration G.O.' of the Travancore - Cochin Government dated 7th May, 1951, allowed qualified juniors to sail over the heads of unqualified seniors, subject to the right of the latter, to restoration of seniority on their becoming qualified for promotion. The limit for restoration was till the qualified junior gels confirmed. The G.O. was clarified by later G.Os. of 1954 and 1961. The first proviso only statutorily incorporated the Restoration G.O. In the Full Bench judgment of this Court in M. P. Raghavan Nair's case ( 1971 KLT 583 ) in Para.14 it was observed that the Travancore - Cochin G.O. dated 7th May 1951 had been clarified by orders dated 26th July 1961 and 19th September 1961. In P. K. Joseph's case ( 1972 KLT 45 ) decided on 17th November 1971, a Division Bench of this Court observed that the two G.Os. of 1961 were only clarificatory of the main G.O. of 1951 and that the main G.O. will not apply to those appointed after the formation of the Kerala State on 1st November 1956. The Principle was reaffirmed by a Division Bench of this Court in K. Viswanathan Nair's case ( 1974 KLT 75 ). It was to get over the effect of the decision in 1972 KLT 45 that the second proviso to R.27 was introduced on 15th November 1974 with effect from 17th December 1958. The Principle was reaffirmed by a Division Bench of this Court in K. Viswanathan Nair's case ( 1974 KLT 75 ). It was to get over the effect of the decision in 1972 KLT 45 that the second proviso to R.27 was introduced on 15th November 1974 with effect from 17th December 1958. It stated that the rules will apply to those appointed in the Kerala State prior to its commencement, viz., 17th December 1958. A Division Bench in Sivaramakrishnan Nair's case (ILR 1975 (1) Ker. 445 = 1975 KLT 400 ) decided that restoration of rank is possible only for those governed by the 1951 G.O. That decision resolved the conflict as between the two single judge decisions of this Court, viz., of Issac, J. in O.P. No. 4030 of 1970 (judgment dated 2nd January 1973) and of myself in O.P. No. 5142 of 1970. The Division Bench accepted the decision of Issac J. as correct and overruled the judgment in O.P. No. 5142 of 1970. It was to get over the effect of this Division Bench ruling that the third proviso was enacted by an amendment dated 1st November 1975. 4A. The learned Advocate General contended that the second proviso to R.27 only made explicit what was really implicit in the rules. Even without the proviso, the same result had to follow on R.1, Part II. He urged that the Division Bench rulings in 1972 KLT 45 and ILR 1975 (1) Ker. 445 and the judgment in O.P. No. 4030 of 1970 were wrong in the view they took, that the first proviso did not apply to those appointed after 1st November 1956 and before 17th December 1958. With reference to the proviso to R.27 and the Restoration G.O. incorporated therein, he stressed the two different aspects involved, viz. (1) the beneficial effect of restoration of seniority in favour of a special category of persons viz., the superseded unqualified seniors; and (2) the adverse effect on the qualified juniors promoted over the seniors. He pointed out R.1 of Part II of the Kerala State and Subordinate Services Rules, which makes the General Rules applicable even to those appointed prior to the commencement of the rules viz., 17th December 1958. He pointed out R.1 of Part II of the Kerala State and Subordinate Services Rules, which makes the General Rules applicable even to those appointed prior to the commencement of the rules viz., 17th December 1958. Therefore, it was contended that the 1951 G.O. having been statutorily embodied in the first proviso, and the first proviso itself being made, by R.1, applicable even to persons appointed prior to 17th December 1958, the decisions in 1972 KLT 45 and ILR 1975 (1) Ker. 445 were wrong in holding otherwise. This contention is well founded and must be accepted. The judgment of Govindan Nair J. in 1972 KLT 45 had noticed R.1 of Part II, and quoted the rule; but made no reference to it thereafter; nor noticed its effect. The conclusion in the case could be supported on the ground that the persons who claimed the benefit of restoration were not entitled to the benefit of the Restoration G.O. On that ground the rule had no application and the Division Bench was correct in so holding. But to the extent to which it restricted the applicability of the first proviso only to those appointed before 1st November 1956, it ignored the provisions of R.1 of Part II. To that extent the decision must be treated as bad law and overruled, ILR 1975 (1) Ker. 445 did not notice R.1 of Part II or its impact on the Restoration Rule. 5A. On principle, it is unreasonable to restrict the restoration of seniority only as against the personnel governed by the G.O. dated 7th May 1951. To so restrict it would mean, at least theoretically, as I pointed out in the course of the arguments, that, if after the supersession of the unqualified T.C. senior, a Kerala recruit in the pucca sense (of one recruited after 1st November 1956) had also been promoted, and thereafter the unqualified senior becomes test qualified, the restoration can be claimed against the earlier promoted T. G. Junior but not against the subsequently promoted Kerala recruit. This is inequitable, and I would avoid a construction of the first proviso which leads to such a result. 6A. Regarding the scope of S.2 and 3 of the Public Services Act, I accept the submissions made by the learned Advocate General. S.2(1) confers the power of making rules prospectively or retrospectively. This is inequitable, and I would avoid a construction of the first proviso which leads to such a result. 6A. Regarding the scope of S.2 and 3 of the Public Services Act, I accept the submissions made by the learned Advocate General. S.2(1) confers the power of making rules prospectively or retrospectively. S.3 enacts a fiction that all rules made under the proviso to Art.309 shall be deemed to have been made under the Act as if the Act had been in force on the date on which the Rules were made. Under the fiction, the Act is pushed back to the date of the promulgation of the Rules. This was the view expressed in ILR 1975 (1) Ker. 434. Also, the Rules are "to continue in force unless and until superseded by any rules made under the Act". Counsel for the petitioners submitted that the scope of the fiction in S.3 must be limited to the purpose of the enactment, and that the same was only to treat the rules under Art.309, as rules made under the Act, and no more; it was argued that beyond the right of continuance and supersession of the rules, there was no right of amendment of the rules under S.3. I am unable to agree. Continuance of the 309 rules till alteration or repeal is directed by the very Article itself, and there is no purpose in a mere change of tutelage for the rules. Practically, similar language is used by S.4 of the All India Services Act, 1951 which reads: "4. Continuance of existing rules.-- All rules in force immediately before the commencement of this Act and applicable to an All India Service shall continue to be in force, and shall be deemed to be rules made under this Act". With respect to that section it was observed by the Supreme Court in D. S. Garewal v. State of Punjab ( AIR 1959 SC 512 ) that it carries a power of amendment of the rule. Poti J. has quoted the relevant paragraph which I need not repeat. In S.3 of our Act we get an addition of the words 'until they are superseded by any rules made under this Act'. Counsel (Sri S. Narayanan Poti) contended that these additional words would suffice to take away the power of amending the 309 rule. Poti J. has quoted the relevant paragraph which I need not repeat. In S.3 of our Act we get an addition of the words 'until they are superseded by any rules made under this Act'. Counsel (Sri S. Narayanan Poti) contended that these additional words would suffice to take away the power of amending the 309 rule. I do not think these additional words will take away the power of amendment, held to be present in their absence. The same words are to be found for instance in Art.372 of the Constitution. The object is not to preserve the rule in tact for all time to come; it h to treat the Governor's rule as having been framed under the Act, so as to subject the rule to the ordinary processes of amendment, modification and repeal at the instance of the Government, rather than, of the Governor. In that view, having been treated as rules framed under the Act, the amendatory process under the provisions of the Act would be open and possible with respect to the rules even under S.3. The power of amendment is also available under S.2. After taking over the rules under S.3 it is open to the Government to make rules prospectively or retrospectively. As the Act itself is, under S.3, to be pushed back to the date of the framing of the rules, there should be no difficulty in holding that the rules framed under the Act, can also be pushed back to the date of the 309 rules, even if the same be before the Act. The doubts expressed in our Full Bench Judgment in 1978 KLT 238 do not seem to stand in the way of our conclusion. No final opinion was expressed in that case, on this aspect of the question, which was expressly left open. I said: "...... This power of rule making is coterminous with the power of legislation by a statute. But whereas a statutory provision can operate on its own, a subordinate legislation (like a statutory rule) requires the supporting cast of a statute to rest and to sustain it. It appears just and logical that if the supporting cast is not available the rule of the subordinate legislation lacks foundation, and must, for that reason, fail. But whereas a statutory provision can operate on its own, a subordinate legislation (like a statutory rule) requires the supporting cast of a statute to rest and to sustain it. It appears just and logical that if the supporting cast is not available the rule of the subordinate legislation lacks foundation, and must, for that reason, fail. Therefore it appears that just as a rule cannot survive the death of the Act (except in respect of actions taken under it, rights or privileges accrued under it, etc.), it cannot perhaps project back prior to its birth. As stated in the judgment on behalf of the Bench, a pronouncement on this vexed question is unnecessary, as, on the scope and content of Ext. P-2 Rules, they purport to be fresh rules under S.2(1) of the Act." Earlier, my learned brother Poti J. had observed: ........ When rules are made under S.2(1) to supersede the rules made earlier under Art.309 of the Constitution it is not as if the earlier rules are thereby amended. They are superseded in accordance with S.3 by rules which get their validity because of S.2(1) of the Act. The rules under the proviso to Art.309 of the Constitution are deemed to be made under the Public Services Act by projecting the Act back to the dates on which such rules were made. Consequence would be that even though the rules were made by the Governor in exercise of the power under the proviso to Art.309 of the Constitution, by reason of S.3 these rules are deemed to be made under the Kerala Public Services Act." The decision of the Full Bench in 1978 KLT 236 does not stand against the view that we have expressed in the instant case.