Jacob Thomas v. Public Service Commission — 1989 DIGILAW 481 (KER)

Judgment :- 1. The first petitioner in O.P.872/79-D, is the appellant. 2. The appellant and respondents 5 and 6 (who were petitioners a1ongwith the appellant) are employees of the Kerala Public Service Commission, for short, the Commission. By virtue of Regulation.12(3) of the Kerala Public Service Commission (compositions and conditions of service of members and staff) Regulations, Kerala State and Subordinate Service Rules govern the service of employees of the Commission. It is not disputed that the third respondent had been in the Government service as L.D. Clerk in the Excise Department since 4-9-1958 and the fourth respondent also in the Government Service as L.D. Clerk in the Revenue Department with effect from 24-7-1958. Both of them continued in that service till they were appointed as L.D.Clerks in the service of the Commission, the third respondent with effect from 28-7-1964 and the fourth respondent with effect from 22-2-1965. The appellant and respondents 5 and 6 were appointed as Lower Division Clerks in the service of the Commission; the appellant with effect from 28-8-1965, the fifth respondent with effect from 29-8-1964 and the sixth respondent with effect from 26-10-1966. The appellant and respondents 5 and 6 were subsequently promoted as Assistant Grade I on 1-7-1968,1-5-1968 and 26-10-1968 respectively while respondents 3 and 4 had to wait for promotion till 21-6-1969 and 14-2-1969 respectively. The reason for supersession of respondents 3 and 4 was stated to be that these respondents at the relevant time had not acquired the test qualification. Later the appellant as also respondents 5 and 6 were promoted in preference to respondents 3 and 4 as Senior Grade Assistants on 26-7-1971,19-7-1971 and 1-9-1971 respectively. Respondents 3 and 4 were promoted to these posts later. Based on their seniority, the appellant and respondents 5 and 6 were having in the post of Assistant Grade I and Senior Grade Assistant, they were promoted as Section Officers in preference to respondents 3 and 4. This was the state of affairs when respondents 3 and 4 wanted the Commission to restore their seniority in terms of the Proviso to R.27(a) & (b) of the Kerala State and Subordinate Service Rules. 3. This was the state of affairs when respondents 3 and 4 wanted the Commission to restore their seniority in terms of the Proviso to R.27(a) & (b) of the Kerala State and Subordinate Service Rules. 3. The question thus arising for consideration is, can a person who was a member of a service under the Government prior to 17-12-1958, severs his connection with that service and gets appointed as a member of another service governed by Kerala State and Subordinate Service Rules (but after 17-12-1958), avail of the restoration principle incorporated in the first proviso to R.27 of K.S. & S.S.R., as clarified by subsequent notifications? The answer depends upon the construction of the proviso mentioned above. 4. We shall now read the proviso: "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.8207/50/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". 5. The content of the proviso can briefly be stated thus: The benefit of the principle of restoration envisaged under the orders of the Travancore-Cochin Government in R.Dis.No.8207/50/CS dated 7th May 1951 can be claimed by a member of any service on the date of coming into force of the K.S. & S.S.Rules namely 17-12-1958, notwithstanding anything contained in sub-rules (a) and (b) of R.27. The restoration principle salvaged by the proviso accordingly helps the seniors, who are superseded or passed over for promotion for want of test qualification and who are entitled to the benefit of the same, to claim such benefit of restoration of seniority even against those appointed in Kerala after 17th December, 1958. (See Sahadeva Kurup v. Board of Revenue, I.L.R. 1979 (1) Ker. 275). The Full Bench according to us, is of the view that the person who claims the benefit of the restoration principle must continue in the service of which he became a member prior to 17-12-1958. It should in this connection be remembered that in view of R.1 of Part-II of K.S. & S.S.Rules, R.27 shall apply to the holders of all posts appointed thereto, before or after 17-12-1958, the date on which K.S. & S.S. Rules came into force. It should in this connection be remembered that in view of R.1 of Part-II of K.S. & S.S.Rules, R.27 shall apply to the holders of all posts appointed thereto, before or after 17-12-1958, the date on which K.S. & S.S. Rules came into force. The cumulative effect of the principle enunciated by the Full Bench in K.V. Sahadeva Kurup's case construing the proviso, R.27 and R.1 of Part II is that the person who claims the benefit of restoration principle envisaged in the 1951 Notification, must continue in the service to which he was appointed prior to 17-12-1958. If that be the position, the benefit of the principle of restoration cannot be claimed by a person who severed his connection with the service of which he became a member prior to 17-12-1958 but joined another service later. It is relevant to note in this context that the persons who claim the benefit here are all appointed afresh after 17-12-1958 to new services, where they claim seniority, on the advice of Public Service Commission. 6. The above position notwithstanding the learned counsel for the Public Service Commission and the counsel for the parties, who go a1ongwith the Public Service Commission, contend that the benefit of the restoration principle can be pressed into service by such persons also. In view of the phraseology used in the proviso namely "person who was a member of 'any service' on the date of coming into force of K.S. & S.S. Rules that is, 17-12-1958". According to the counsel it is enough if the person concerned shows that he was a member of a service prior to 17-12-1958. The counsel therefore submit that the person who has served his connection with the service of which he became a member prior to 17-12-1958, still is entitled to claim the said benefit as against persons who were appointed a1ongwith him to a different service (on their being appointed thereto a1ongwith him on the advice of the Public Service Commission) after 17-12-1958. The judgments in O.P.150/1974 and O.P.2961/1982 lend support to the above argument. With respect, we cannot agree with the views expressed in those judgments by learned judges. 7. It has therefore become necessary to examine the legal parameter of the right claimed by them.We shall first consider the scope of R.27 without the proviso. The judgments in O.P.150/1974 and O.P.2961/1982 lend support to the above argument. With respect, we cannot agree with the views expressed in those judgments by learned judges. 7. It has therefore become necessary to examine the legal parameter of the right claimed by them.We shall first consider the scope of R.27 without the proviso. R.27 (a) provides 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. Scope of clause (b) however need not be considered as the facts of the case do not warrant even a reference to the same. That K.S. & S.S. Rules governs the service of every person in a service whether he was appointed prior to 17-12-1958 or after the said date, is beyond dispute. The seniority of a person appointed to a service prior to 17-12-1958 also therefore requires to be determined in accordance with R.27. He is one who admittedly is entitled to the benefit of the 1951 Notification namely R.Dis.No.8207/50/CS dated 7th May, 1951 as subsequently clarified. In order to see that they continue to enjoy the said benefit even after 17-12-1958, the legislature in our view, enacted the proviso. This is further clarified by the last proviso introduced by G.O.(P) 1257/75/PD dated 1-11-1975 enabling such persons to restoration of seniority provided for by the 1951 Notification over even those who have been appointed after 17-12-1958. 8. It can therefore be inferred without the fear of contradiction that, but for the proviso the enacting part of R.27 would have included the subject-matter of the proviso. Such a proviso cannot be construed as enlarging the scope of the enactment when it can be fairly and properly construed without attributing to it that effect. The well established canon of interpretation that, the natural presumption is that but for the proviso, the enacting part of the Section would have included the subject-matter of the proviso, should be borne in mind in this context. (See Caries on Statute Law, 17th edn.,page 218). The well established canon of interpretation that, the natural presumption is that but for the proviso, the enacting part of the Section would have included the subject-matter of the proviso, should be borne in mind in this context. (See Caries on Statute Law, 17th edn.,page 218). This being so, the proviso cannot be said to be repugnant to R.27 so as to say the same governs a subject matter different from the one covered by the enacting part of the Rule and as such an independent Rule as contended for by the counsel. A reference in this context to the definition of the word 'service' is also relevant. 'Service' means a group of persons classified by the State Government as a State or Subordinate Service as the case may be. However where the con text so requires, 'service' means the period during which a person holds a post or a lien on a post or is a member of a service as above defined. This is the note attached to the definition of the word 'service'. This definition read with'the note' makes it still clear that only during the period when he holds the post or the lien on the post to which he was appointed prior to 17-12-1958 the person mentioned in the Notification can claim the benefit of the restoration of seniority. Any other interpretation, in our view, would defeat the object with which the proviso was enacted. To put it differently any other interpretation would result in perpetrating "incompetence and idleness at the expense of ability and diligence". Going by this principle also the above argument is liable to be rejected. We accordingly reject the same. The judgment under attack therefore is set aside. The appeal is allowed. Allowed.