Judgment :- The issues raised in these Original Petitions are identical. So, on agreement of counsel appearing on either side, I heard the petitions together and I am disposing of them by this common judgment. 2. O.P. 8340/85 is considered as the main case. In this judgment, I am referring to the exhibits as they are marked in that O.P. 3. Government took a policy decision that recruitment to the posts in the Ministerial cadre in the Police Department will be made by enlistment under the Police Act. In pursuance to that decision, the posts of Lower Division Clerks and Lower Division Typists in the Police Department were re designated as Havildar Clerks and Havildar Typists. The qualification and method of appointment to these categories were fixed by G.O.MS.12/74/Home dated 19-1-74 which is marked as Ext.P1. This order of Government was challenged before this Court in Sudhakaran v. State of Kerala (I.L.R.1977(2) Kerala 446). A Bench of this Court quashed that order holding that the said executive order cannot over-ride the statutory provisions. In pursuance thereto, Government issued Ext.P2 order dated 12-12-78 cancelling Ext.P1. Inspector General of Police was directed to take action to fill up existing vacancies of Lower Division Clerks and Lower Division Typists through Public Service Commission. It was further provided therein that orders regarding the persons already recruited as Havildar Clerks and Havildar Typists will be issued separately. Immediately after Ext.P2 order, vacancies in the cadre of Lower Division Clerks and Lower Division Typists were referred to the Public Service Commission. Petitioners, seven in number, in O.P. 8340/85 were advised by the Public Service Commission for the post of Lower Division Clerks. They joined the service during 1979. The 7th petitioner joined the service on 27-12-1979. They got promotion to the cadre of Upper Division Clerks between 1-11-80 and 7-3-1984. 4. Havildar Clerks and Havildar Typists who were appointed between the dates of Exts.P1 and P2 orders were holding provisional appointments. Government by Ext.P3 order dated 29-12-79 decided to terminate their services forthwith and then to appoint them afresh as Lower Division Clerks/Lower Division Typists in the Police Department after ascertaining their willingness. It was further ordered that they will be treated as fresh appointees for the purpose of seniority (not for pay fixation). Government by Ext.P3 order dated 29-12-79 decided to terminate their services forthwith and then to appoint them afresh as Lower Division Clerks/Lower Division Typists in the Police Department after ascertaining their willingness. It was further ordered that they will be treated as fresh appointees for the purpose of seniority (not for pay fixation). Thus persons who entered service as Havildar Clerks and Havildar Typists during the period between 19-1-74 and 12-12-78 were reappointed as Lower Division Clerks/Lower Division Typists, after ascertaining their option. They were treated as having joined the service on 29-12-79, the date of Ext.P3 order (vide Ext.P5 order dated 3-10-81). Havildar Clerks and Havildar Typists who thus entered service as Lower Division Clerks and Lower Division Typists on regular basis with effect from 29-12-79 made representations to Government to fix their seniority with reference to the date of their entry in service. Since there was delay in disposal of those representations, they approached this court by moving O.P. No.310/81. This Court directed the Government to dispose of their representations in accordance with law as expeditiously as possible. Purporting to be in compliance with that direction, Government have issued Ext.P6 order dated 31-7-85 giving them seniority with effect from the date of their entry in service as Havildar Clerks and Havildar Typists. By this order, the seniority of the petitioners have been interferred with. Hence the petitioners seek to quash Ext.P6 order. 5. The short question that arises for consideration in these original petitions is whether Havildar Clerks and Havildar Typists recruited to service during the period from 19-1-74 to 12-12-78 are entitled to claim seniority in the cadre of Lower Division Clerks and Lower Division Typists with reference to the date of their entry in service as Havildar Clerks/Havildar Typists. It is common case that those Havildar Clerks and Havildar Typists were appointed in pursuance to Ext.P1 order. It is also agreed that, that order has been quashed by this court by the decision in Sudhakaran v. State of Kerala referred to earlier. Government in its turn cancelled Ext.P1 order by Ext.P2G.OJVIS.No.119/ 78/Home dated 12-12-78. Government in the subsequent orders have categorically stated that the Havildar Clerks and Havildar Typists were appointed provisionally. They were not appointed on regular basis in accordance with statutory Rules. Government in its turn cancelled Ext.P1 order by Ext.P2G.OJVIS.No.119/ 78/Home dated 12-12-78. Government in the subsequent orders have categorically stated that the Havildar Clerks and Havildar Typists were appointed provisionally. They were not appointed on regular basis in accordance with statutory Rules. The provisional service rendered by them as Havildar Clerks and Havildar Typists was not to be taken into consideration for fixing their seniority as per Ext.P3 order dated 29.12.79. That order specifically provided that they will be treated as fresh appointees for the purpose of seniority. After ascertaining their willingness, they were appointed to the cadre of Lower Division Clerks and Lower Division Typists and they were given seniority in service with effect from 29-12-79 by G.O.MS. No.136/81/Home dated 3-10-81. 6. Some of the Havildar Clerks who were provisionally appointed to that cadre between 19-1-74 and 12-12-78 applied to the P.S.C. for recruitment to the post of Sub Inspector in the quota reserved for ministerial staff. Their applications were rejected by the P.S.C. on the ground that they were not recruited to the cadre of ministerial staff. This view taken by the P.S.C. was challenged before this Court in O.P.327/87. This court took the view that the duties and functions appertinent to the post of Havildar Clerks and Havildar Typists were the same as those pertaining to Lower Division Clerks and Lower Division Typists. In this view it was held that those Havildar Clerks should be treated as employees of the ministerial wing of the Police Department. Their services as Havildar Clerks should be counted as service in the ministerial wing. In that O.P. petitioners namely the quondam Havildar Clerks claimed seniority in the cadre of Lower Division Clerks and Lower Division Typists with effect from the date of their entry in service. That issue was left open by this court and the Government was directed to examine that issue and to pass appropriate orders in accordance with law. 7. An argument has been advanced on behalf of the State that the decisions in O.P. No.310/81 and 327/81 has the effect of directing the Government to treat the services rendered by the Havildar Clerks as service rendered by them in the ministerial cadre and consequently they are to get seniority in the cad re of Lower Division Clerks with effect from the date of their entry in service. I find it difficult to accept this argument; primarily because the issue regarding seniority was specifically left open in the judgement in O.P. No.327/81. Further the P.S.C. rejected the applications only on the basis that applicants, the quondam Havildar Clerks, did not put in the required service in the ministerial cadre. The Commission was concerned with "service" in the ministerial cadre and not with the "seniority" in that cadre. Havildar Clerks appointed in pursuance to Ext.P1 order were discharging the duties similar to that of Lower Division Clerks in the ministerial cadre. Therefore they gained experience in the ministerial service. Experience in the ministerial service alone was the criteria for applying to the post of Sub Inspector in the quota reserved for members of the ministerial staff. What was required was service of two years in the ministerial cadre. That service need not be as regular service. Provisional service in that cadre is also service required for the post of Sub Inspector. In this view, this court held that the service rendered by the quondam Havildar Clerks is to be treated as service in ministerial service and that they are entitled to apply for the post of Sub Inspector. The provisional service rendered by them cannot confer on them any seniority in the service or cadre in view of the specific provisions contained in Rule 27 of the Kerala State and Subordinate Service Rules. A Bench of this court in Marakkar v. Kerala Public Service Commission (1987 (1) K.L.T. 84) observed: "It is pointed out that the word 'service' without qualification means service of any kind and that service has to be taken into account for the purpose of qualification and only for that purpose. The context in which the word 'service' has been used does not justify any other inference either. Emphasis of the rule appears to be on the persons concerned having become familiar with the duties of the particular post for a particular period. Therefore the question as to whether that familiarity or experience has been acquired by holding the post on a provisional, regular or other basis is not of any materiality. Emphasis of the rule appears to be on the persons concerned having become familiar with the duties of the particular post for a particular period. Therefore the question as to whether that familiarity or experience has been acquired by holding the post on a provisional, regular or other basis is not of any materiality. We have therefore no hesitation in taking the view that the expression'service' used in the rule in question does entitle the appellant to count the service rendered by him on a provisional basis." This observation applies on all fours to the facts in this case. It means that in O.P. 327/81 this court directed to consider the application of the quondam Havildar Clerk for the post of Sub Inspector because he has put in the requisite service of two years in ministerial cadre. That service put in by him as a provisional appointee cannot be counted for purpose of seniority. 8. After referring to the decision in Direct Recruit Class II Engineering Officers'Association v. State of Maharashtra & Others (1990)2 SCC 115, D.N. Agrawal and another v. State of Madhya Pradesh & Others (1990) 2 SCC 553 and Union of India and Others v. Ansusekhar Guin and Others, S.N. Aiyyar and another v. Union of India and Others (1989) 1 SCC 283 their Lordships of the Supreme Court observed: "If the initial appointment is not made according to the rules, subsequent regularisation of his service does not entitle an employee to the benefit of intervening service for seniority." (Vide Masood Aktar Khan v. State of M.P.1990 (2) K.L.T. Short Notes 19 Case No.28). This statement of law is applicable to the quondam Havildar Clerks and Havildar Typists. They were appointed to the cadre provisionally, between 19-1-74 and 12-12-78. This appointment was not in compliance with the provisions of any Rule. It was in pursuance to Ext.P1 order which was quashed by this Court and cancelled by the Government by Ext.P2 order. So the provisional appointees to that cadre cannot in any way count the service rendered by them prior to their regularisation with effect from 29-12-79 for claiming seniority in the cadre of Lower Division Clerks and Lower Division Typists. As per Ext.P5 order read with Ext.P3 they can claim seniority in the cadres of Lower Division Clerks and Lower Division Typists with effect from 29-12-79 only. As per Ext.P5 order read with Ext.P3 they can claim seniority in the cadres of Lower Division Clerks and Lower Division Typists with effect from 29-12-79 only. It means that those Havildar Clerks and Havildar Typists can never claim seniority over petitioners in O.P.No.8340/85 because they entered service prior to 29-12-79. 8. Yet another argument advanced by the learned Government pleader in support of Ext.P6 order is based on Rule 39 of Kerala State and Subordinate Service Rules. Since the Government thought that injustice has been done to the quondam Havildar Clerks and Havildar Typists by denying the benefit of their services prior to 29-12-79, it was felt that power under Rule 39 has to be invoked for doing justice to them. In this view, according to him, Ext.P6 order was issued. I find it difficult to accept this argument either. The circumstances under which and the purpose for which Rule 39 of the Kerala State and Subordinate Service Rules can be invoked by the Government to relax the rigour of the other Rules has been dealt with by a Full Bench of this Court in T.C.SredharanPillai & Others v. State of Kerala & Others (1973 K.L.T. 151). This court laid down the parameters within which the powers under that Rule are to be exercised. Neither the Government nor the contesting respondents have a case that those requirements have been complied with in this case. No notice to persons who are affected by Ext.P6 order, was given before Ext.P6 order was passed. So I do not find any ground to support Ext.P6 as an order passed in exercise of the powers under Rule 39 of the Kerala State and Subordinate Service Rules. 9. 11th respondent was appointed under the dying-in-harness scheme. As per second proviso to Rule 27(c) of Kerala State and Subordinate Service Rules read with Regulation 4(b) of P.S.C. (Consultation) Regulations, he is entitled to seniority in the cadre with effect from the date of his entry in service. Since he entered service, under the dying-in-harness, scheme prior to the petitioners, his seniority cannot be questioned by these petitioners. In view of what has been stated above, I hold that Ext.P6 order is invalid. Accordingly I quash the same. Original petitions are disposed of in the above terms.