Holding

Rule 8 applies because the appointment to the Co-operative Department, though made on the petitioners' own application, is deemed to be in the exigencies of public service under Note I, and a lien is only acquired upon confirmation, which the petitioners lacked.

Summary

The petitioners, originally appointed in the Rural Development Department of Kerala, later transferred to the Co-operative Department after applying through the Kerala Public Service Commission. When a promotion list was prepared for the Rural Development Department, a dispute arose whether the petitioners retained a lien on their original posts under Rule 8 of the Kerala State and Subordinate Service Rules, 1958. The High Court Full Bench held that Note I to the last proviso of Rule 8 deemed such appointments to be made in the exigencies of public service, thereby preserving the lien. The Supreme Court affirmed this view, emphasizing that a lien is acquired only upon confirmation, which the petitioners had not received in the Co-operative Department. Consequently, the petitioners were entitled to be included in the promotion list of the Rural Development Department. The appeals were dismissed without costs.

Issues considered

Whether Rule 8 of the Kerala State and Subordinate Service Rules, 1958 applies to employees who move to another department on their own application.
Whether the appointment to the Co-operative Department can be deemed to be made in the exigencies of public service under Note I.
Whether a lien on a post is acquired before confirmation and permanent appointment.

Legislation cited

Kerala State and Subordinate Service Rules, 1958s. Rule 18, s. Rule 24, s. Rule 28, s. Rule 8

Subjects

service lawlienpromotion listproviso interpretationdeeming provisionKerala State Service Rulesappointmentconfirmationprobationpublic service exigency

Judgment

)

A ALI M.K. AND ORS.
v.
STATE OF KERALA AND ORS.

APRIL 22, 2003

B [SHIVARAJ V. PATIL AND ARIJIT PASAYA T, JJ.]

Service Law:

Kera/a State and Subordinate Service Rules, 1958:
c
Rule 8, last proviso, Note-I, Rules 24 and 28-Lien on previous
service-Appointment in exigencies of public service-Candidates initially
appointed in Rural Development Department-Later applied for and
appointed in Co-operative Department but not confirmed therein-Claim
D for inclusion of their names in promotion list in Rural Development
Department-Held, r.8 applies to the case-In view of Note I, appointment

-
made in pursuance of an application invited, sponsored or recommended by
Government or other competent authority shall be deemed to be an
appointment made in exigencies of public service-A person can be said to
acquire a lien on a post only when he has been confirmed and made permanent
E on the said post-Mere completion of probation does not result in automatic
confirmation.

Interpretation of Statutes-Proviso to a section and a deeming
provision-Effect of-Discussed.

F The non-official respondents and the appellants were initially appointed
in the Rural Development Department in the State of Kerala. Since certain
posts in the Co-operative Department were to be filled up by transfer, the non-
official respondents applied for those posts and on being selected, joined the
-
Co-operative Department. Subsequently, when a promotion list was being
prepared in the Rural Development Department a dispute arose whether benefit
G of Rule 8 ofKerala State and Subordinate Service Rules, 1958 was available
to the respondents and their lien continued in the Rural ·Development
Department so that their names could be included in the promotion list. The
matter was taken up to the High Court, and ultimately a Full Bench of the
High Court held in favour of the respondents. Aggrieved, the appellants filed
H 826
ALI M.K. v. STA TE 827
the present appeals. A
It was contended for the appellants that Rule 8 of the Kerala State and
Subordinate Service Rules, 1958 had no application to the case of the non-
official respondents since they had on their own applied for absorption in the
Co-operative Department and their appointment in the said Department cannot
be said to be in exigencies of public service; and that they were appointed in B
Co-operative Department to the posts which were substantive in nature and
character and therefore, they lost their lien over the posts in the Rural
Development Department. For the respondents it was contended that in view of
Note I appended to the last proviso to Rule 8, they were entitled to the benefit
of the Rule. C
Dismissing the appeals, the Court

HELD: I.I. The last proviso to Rule 8 of the Kerala State and Subordinate
Service Rules,1958 operates in cases where even though the member of a
service is appointed in another service on the basis of his own application, same D
is in the exigencies of public service. The proviso consists of two parts. The
first part is that the rule has no application where a member of a service is
appointed to another service solely on his application. The second part is an
exception to general prescription and is applicable if the appointment is made
in the exigencies of pubiic service. Note I to the said proviso is of considerable E
significance. It is a deeming provision a~d creates a legal fiction; it provides
that the appointment made in pursuance of an application invited, sponsored
or recommended by Government or other competent authority shall be deemed
to be an appointment made in the exigeni:ies of public service for the purpose
of Rule 8. [831-G, H; 832-AI
F
State of Travancore Cochin and Ors. v. Shanmugha Vilas Cashewnut
Factory, AIR (1953) SC 333; American Home Products Corporation v. Mac
Laboratories Pvt. Ltd. and Anr., [19861 I SCC 465 and Smt. Parayankandiyal
Eravath Kanapravan Kalliani and Ors. v. K. Devi and Ors., AIR (1996) SC
1963, referred to.
G
Hill v. East and West India Dock Co., (1884) (9) AC 448 (H.L.), East
End Dwelling Co. Ltd. v. Finsbury Borough Council, (1951) 2 All ER 587; St.
Aubyn, (L.M.) v. A.G. (No.2) (1951) 2 All E.R. 473 (HL); Hunter Douglas
Australia Pty. V. Perma Blinds, (1970) 44 A.L.J.R.257); R. v. Nonfolk County
Court, 60 L.J.Q.B. 380; Farguson v. McMillan, 1954, S.L.T:I09; St.Leon H
828 SUPREME COURT REPORTS [2003] 3 S.C.R.

A Village Consolidated School District v. Ronceray, (1960) 23 D.L.R. (2 d) 32);
Barclays Bank v. I.R.C. (1961) A.C. 509 and R. v. Brixion Prison Governor
ex.p. Sob/en (1962)3 All E.R. 641, referred to.

1.2. The normal function of a proviso is to except something oitt of the
enactment or to qualify something enacted therein which but for the proviso
B would be within the purview of the enactment. (832-81

Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra
Yograj Sinha, AIR (1961) SC 1596; Calculta Tramways Co. Ltd v. Corporation
of Calcutta, AIR (1965) SC 1728; A.N. Sehgal and Ors. v. Raje Ram Sheoram
C and Ors., AIR (1991) SC 1406; Tribhovandas Haribhai Tambo/i v. Gujarat
Revenue Tribunal and Ors., AIR (1991) SC 1538 and Kera/a State Housing
Board and Ors. v. Ramapriya Hotels (P) ltd and Ors., (1994( 5 SCC 672,
referred to.

Mullins v. Treasurer ofSurvey, (1880) 5 QBD 170 and West Derby Union
D v. Metropolitan life Assurance Co., (1897) AC 647 (HL), referred to.
1.3. The Full Bench of the High Court as a matter of fact found that
Note 1 to the last proviso to Rule 8 .applies because the appointments of the
non-official respondents in the Co-operative Department were made in
pursuance of applications invited, sponsored and recommended by the
E Government. In view of this factual finding the conclusions are in order and
the decision of the Full Bench does not suffer from any vulnerability to warrant
interference. (835-A-B, El

2. A person can be said to acquire a lien on a post only when he has been
F confirmed and made permanent on that post and not earlier. The Full Bench of
the High Court has recorded a factual finding that non-official respondents
have not been confirmed in the posts in the Co-operative Department. It has
been specifically recorded that no material was placed to show that any order
has been passed by the Co-operative Department confirming the employees
coneerned in their posts. With reference to Rule 24 it was noted that mere
G completion of probation does not result in automatic confirmation. (835-C-El

Triveni Shankar Saxena v. State of UP .. AIR (1992) SC 496 and
Parshotam Lal Dhingra v. Union of India, (1958) SC 36, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5072of1999.
H
.-i
I

ALIM.K. v. STATE [ARIJITPASAYAT,J) 829
From the Judgment and Order dated 6.4.1998 of the Kera la High Court A
in W.A. No. 69 of 1995.

WITH

C.A. No. 5073 of 1999
B
Roy Abraham, Mininder Lal, Ms. Karthika S., N.R. Shonker, C.K. Sasi,
Goodwill lndeevar (NP), G. Prakash, John Mathew for K.R. Sasiprabhu for the
appearing parties.

The Judgment of the Court was delivered by

ARIJIT PASAYA T, J. In these appeals the scope, content and ambit of
c
Rule 8, Part II of the Kerala State and Subordinate Service Rules, 1958 (in
short the 'KSSR') is the pivotal issue. Full Bench judgment of the Kera la High
Court is under challenge.

·Parties are litigating in the following factual background. Non-official D
respondents and the appellants were originally appointed in the Rural
Development Department on different posts. Subsequently, the said
respondents joined the services of the Co-operative Depai1ment. A fixed
percentage of posts in the Co-operative Department are to be made by
transfer. Non-official respondents applied to the Kerala Public Service
Commission (in short the 'Commission') and on being selected joined the Co- E
operative Department. Question arose whether the benefit of Rule 8 of the
KSSR is available to a person who is appointed to a post in another service
and whether the lien of such a member continued in the former service.
Controversy was whether their names were to be included in the promotion
list. A learned Single Judge took the view that their names could not be F
included. Foundation for this view was a Division Bench judgment in an
earlier case.

Judgments of the learned Single Judge were challenged in Writ Appeals
before the Division Bench. The matter was referred to a Full Bench to be
heard along with an Original petition which was earlier referred to such Bench, G
as correctness of some earlier decisions was doubted. Parties before the Full
Bench focused their attention on Rule 8 of the KSSR. While the appellants
herein submitted that same was not applicable to the non-official respondents,
the latter contended that it was applicable. The Full Bench by the impugned
judgment accepted the contention of the non-official respondents. Appellants, H
830 SUPREME COURT REPORTS [2003] 3 S.C.R.

A as noted above, have questioned correctness ·Of the Full Bench's decision.

According to the learned counsel for the appellants Rule 8 has no
application to the facts of the present case since no person can have lien over
two substantive posts in two different services. The non-official respondents
have acquired lien on posts in the Co-operative Department and, therefore,
B they cannot be considered along with the appellants for the promotion and
other service benefits in the Rural Development Department. With reference
to Rules 24 and 28 of the KSSR, he submitted that the non-official respondents
have been appointed in posts which were substantive in nature and character
and, therefore, they had lost their lien over the posts in the Rural Development
C Department. They had on their own applied for absorption in the Co-operative
Department and by no stretch of imagination, can their appointment be
considered to be in exigencies of public service.

In response, learned counsel for the non-official respondents submitted
that Note I appended to Rule 8 made the position clear that Rule 8 is
D applicable to their cases. The Full Bench has recorded a categorically finding
that there was no material to show that they had been confirmed in the Co-
operative Department as there was no order of confirmation. This is a factual
finding recorded. Therefore, the Full Bench's decision is on terra firma.

Since Rule 8 of the KSSR is the touchstone on which the respective
E stands are to be tested, it would be appropriate to quote the same. The same
reads as follows:

"Rule 8: Members absent from duty:- The absence of a member of a
service from duty in such service whether on leave, other than leave
without allowances for taking up other employment on foreign service
F or on deputation or for any other reason and whether his lien in a post
borne on the cadre of such service is suspended or not, shall not, if
he is otherwise fit, render him ineligible in his turn -

(a) for re-appointment to a substantive or officiating vacancy in
the clause, category, grade or post in which he may be a probationer
G or an approved probationer;

(b) for promotion from a lower to a higher category in such service
and

(c) for appointment to any substantive or officiating vacancy in
H another service for which he may be an approved candidate; as the
ALIM.K. v.STATE [ARIJITPASAYAT,J.] 831
case may be, in the same manner as if he has not been absent. He shall A
be entitled to all the privileges in respect of appointment, seniority,
probation and appointment as full member which he would have
enjoyed but for his absence:

Provided that subject to the provisions of Ru le 18 he shall
satisfactorily complete the period of probation on his return; B
Provided further that a member of a service who is appointed
to another service, and is a probationer or an approved probationer
in the latter service, shall not be appointed under clause (c) to any
other service for which he may be an approved candidate unless
he relinquishes his membership in the latter service in which he C
is a probationer or he approved probationer:
Provided further that this rule shall not have retrospective
effect so as to disturb the decision taken by the Travancore
Cochin Government in respect of the Travancore Cochin personnel:
Provided also that this rule shall not apply in the case of a
D
member whose absence from duty in such service is by reason of
his appointment to another service not being Military Service,
solely on his own application, unless such appointment is made
in the exigencies of public service.
Note I:- An appointment made in pursuance of applications invited
E
sponsored or recommended by Government or other competent
authority shall be deemed to be an appointment made in the
exigencies of public service for the purpose of this rule.
Note 2:-The benefit of this rule shall not be available to a person F
holding a post in any class or category in a service if his
appointment to that post was from a post in another class or
category in the same service."
The last proviso to Rule 8 consists of two parts. The first part is that
the rule has no application where a member of a service is appointed to G
another service solely on his application. The second part is an exception to
general prescription and is applicable if the appointment is made in the
exigencies of public service.

Note I is of considerable significance. It is a deeming provision and
provides that the appointment made in pursuance of an applications invited, H
832 SUPREME COURT REPORTS (2003] 3 S.C.R.

A sponsored or recommended by Government or other competent authority
shall be deemed to be an appointment made in the exigencies of public service
for the purpose of Rule 8.

It would be appropriate to note the effects of a proviso and a deeming
provision.
B
The normal function of a proviso is to except something out of the
enactment or to qualify something enacted therein which but for the proviso
would be within the purview of the enactment. As was stated in Mullins v.
Treasurer of Survey, (1880) 5 QBD 170, (referred to in Shah Bhojraj Kuverji
Oil Mills and Ginning FactOIJ' v. Subhash Chandra Yograj Sinha, AIR
C (1961) SC 1596) and Ca/cul/a Tramways Co. Ltd. v. Corporation o/Calculla.
AIR (1965) SC 1728; when one finds a proviso to a section the natural
presumption is that, but for the proviso, the enacting part of the section
would have included the subject matter of the proviso. The proper function
of a proviso is to except and to deal with a case which would otherwise fall
D within the general language of the main enactment and its effect is confined
to that case. It is a qualification of the preceding enactment which is expressed
in terms too general to be quite accurate. As a general rule, a proviso is added
to an enactment to qualify or create an exception to what is in the enactment
and ordinarily, a proviso is not interpreted as stating a general rule. "If the
language of the enacting part of the statute does not contain the provisions
E which are said to occur in it you cannot derive these provisions by implication
from a proviso." Said Lord Watson in West Derby Union v. Metropolitan life
Assurance Co., (1"897 AC 647)(HL). Nonnally, a proviso does not travel beyond
the provision to which it is a proviso. It carves out an exception to the main
provision to which it has been enacted as a proviso and to no other. (See A.N.
F Sehgal and Ors. v. Raje Ram Sheoram and Ors., AIR (1991) SC 1406),
Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal and Ors., AIR
(1991) SC 1538 and Kera/a State Housing Board and Ors. v. Ramapriya
Hotels (P) ltd. and Ors., (1994] 5 SCC 672.

"This word (proviso) hath divers operations. Sometime it worketh a
G qualification or limitation; sometime a condition; and sometime a covenant"
(Coke upon Littleton 18th Edition, 146)

"If in a deed an earlier clause is followed by a later clause which
destroys altogether the obligation created by the earlier clause, the later
clause is to be rejected as repugnant, and the earlier clause prevails .... But if
H the later clause does not destroy but only qualifies the earlier, then the two
ALI M.K. v. STATE [ARIJITPASAYAT, J.] 833
are to be read together and effect is to be given to the intention of the parties A
as disclosed by the deed as a whole'' (per Lord Wren bury in Forbes v. Git,
[1922] I A.C. 256).

A statutory proviso "is something engrafted on a preceding enactment"
(R. v. Taunton, St James, 9 B. & C. 836).
B
"The ordinary and proper function of a proviso coming after a general
enactment is to limit that general enactment in certain instances" (per Lord
Esher in Re Barker, 25 Q.B.D. 285).

A proviso to a section cannot be used to impmt into the enacting part
something which is not there, but where the enacting part is susceptible to C
several possible meanings it may be controlled by the proviso (See Jennings
v. Kelly, (1940] A.C. 206.

So far as Rule 8 is concerned, the proviso referred to above operates
in cases where even though the member of a service is appointed in another
service on the basis of his own application, same is in the exigencies of public D
service. Therefore, the vital question is whether the appointment is made in
the exigencies of public service. For that purpose, Note I assumes significance.
It is, as noted above, a deeming provision. Such a provision creates a legal
fiction. As was stated by James L.J. in Ex parte, Walton, In re, Levy [ 1881 ( 17)
Ch D 746] "when a statute enacts that something shall be deemed to have E
been done, which in fact and in truth was not done, the court is entitled and
bound to ascertain for what purposes and between what persons the statutory
fiction is to be resorted to. After ascertaining the purpose full effect must be
given to the statutory fiction and it should be carried to its logical conclusion
and to that end it would be proper and even necessary to assume all those
facts on which alone the fiction can operate (See Hill v. East and West India F
Dock Co., (1884) (9) AC 448 (H.L.), State ofTrm'ancore Cochin and Ors. v.
Shanmugha Vilas Cashewnut Fact01y, AIR (1953) SC 333, American Home
Products Corporation v. Mac Laboratories Pvt. Ltd. and Anr., (1986] 1 SCC
465) and Smt. Parayankandiyal Eravath Kanapravan Kal/iani and Ors. v.
K. Devi and Ors., AIR ( 1996) SC 1963. In an oft-quoted passage, Lord Asquith G
stated, "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
consequence and incidents which, if the putative state of affairs had, in fact,
existed must inevitably have flowed from or accompanied it.. .." The statute
states 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 H
834 SUPREME COURT REPORTS [2003] 3 S.C.R.

A it comes to the inevitable corollaries of that state of affairs." (See East End
Dwelling Co. ltd. v. Finsbury Borough Council, ( 1951) 2 All ER 587.

"The word 'deemed' is used a great deal in modem legislation. Someiimes
it is used to impose for the purposes of a statute an artificial construction of
a word or phrase that would not otherwise prevail. Sometimes it is used to
B put beyond doubt a particular construction that might otherwise be uncertain.
Sometimes it is used to give a comprehensive description that includes what
is obvious, what is uncertain and what is, in the ordinary sense, impossible"
(per lord Radcliffe in St. Aubyn (L.M.) v. A.G. (No.2) (1951) 2 All E.R. 473
(I-IL)

c "Deemed", as used in statutory definitions "to extend the denotation of
the defined term to things it would not in ordinary parlance denote, is often
a convenient devise for reducing the verbiage of an enactment, but that does
not mean that wherever it is used it has that effect; to deem means simply
to judge or reach a conclusion about something, and the words 'deem' and
D 'deemed' when used in a statute thus simply state the effect or meaning
which some matter or thing has - the way in which it is to be adjudged; this
need not import artificially or fiction; it may simply be the statement of an
undisputable conclusion" (per Windener J. in Hunter Douglas Australia Pty
v. Perma Blinds, (1970) 44 A.L.J.R. 257),

E "When a thing is to be "deemed" something else, it is to be treated as
that something else with the attendant consequences, but it is not that
something else (per Cave J., R. v. NOJfolk County Court, 60 L.J.Q.B. 380).

"When a statute gives a definition and then adds that certain things
shall be 'deemed' to be covered by the definition, it matters not whether
F without that addition the definition would have covered them or not": (per
lord President Cooper in Ferguson v. McMillan, 1954, S.L.T. I 09).

Whether the word "deemed" when used in a statute established a
conclusive or a rebuttable presumption depended upon the context (See St.
G Leon Village Consolidated School District v. Ronceray, (1960] 23 D.L.R. (2
d) 32).

"l.. .. regard its primary function as to bring in something which would
otherwise be excluded" (per Viscount Simonds in Barclays Bank v. I.R.C.
[ 1961] A.C. 509). "Deems'' means "is of opinion" or "considers" or "decides"
H and there is no implication of steps to be taken before the opinion is fonned
ALI M.K. v. STATE [ARIJITPASAYAT,J.] 835
or the decision is taken."(See R. v. Brixion Prison Governor ex.p. Sob/en, A
(1962) 3 All E.R. 641)

The Full Bench as a matter of fact found that Note I applies because
the appointments of the non-official respondents in the ·Co-operative
Department were made in pursuance of applications invited, sponsored and
recommended by the Government. In view of this factual finding, the B
conclusions are in order.

A faint attempt was made to submit that the non-official respondents
had lost their lien as they were appointed to posts of substantive nature.
Reference was made to Rule 28 to submit that on completion of probation and C
in case of promotion, it is to be presumed that there was substantive
appointment. The Full Bench has recorded a factual finding that non-official
respondents have not been confirmed in the posts in the Co-operative
Department. It has been specifically recorded that no material was placed to
show that any order has been passed by the Co-operative Department
confirming the concerned employees in their posts. With reference to Rule 24 D
it was noted that mere completion of probation does not result in automatic
confirmation. It is a settled position in law that a person can be said to acquire
a lien on a post only when he has been confirmed and made permanent on
that post and not earlier. [See Triveni Shankar Saxena v. State of UP., AIR
(1992) SC 496) and Parshotam Lal Dhingra v. Union of India, AIR 1958 SC
~ E
Above being the position, the Full Bench's decision does not suffer
from any vulnerability to warrant interference. The appeals are dismissed, but
in the peculiar circumstances, there will be no order as to costs.

RP. Appeals dismissed. F