Full Judgment Text
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CASE NO.:
Appeal (civil) 5072 of 1999
PETITIONER:
Ali M.K. and Ors.
RESPONDENT:
State of Kerala and Ors.
DATE OF JUDGMENT: 22/04/2003
BENCH:
SHIVARAJ V PATIL & ARIJIT PASAYAT.
JUDGMENT:
J U D G M E N T
WITH
CIVIL APPEAL NO. 5073 OF 1999
ARIJIT PASAYAT, J.
In these appeals the scope, content and ambit of 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 Kerala High Court is under challenge.
Parties are litigating in the following factual
background. Non-official 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 Department. 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-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 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, 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, as noted above, have
questioned correctness of the Full Bench’s decision.
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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, 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
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 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 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 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 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 another service for
which he may be an approved candidate; as the
case may be, in the same manner as if he has
not been absent. He shall 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 Rule 18 he shall
satisfactorily complete the period
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of probation on his return;
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 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
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 1:- An appointment made in
pursuance of applications invited
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
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 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, 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
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proviso and a deeming provision.
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 Factory v. Subhash Chandra Yograj Sinha
(AIR 1961 SC 1596) and Calcutta Tramways Co. Ltd. v.
Corporation of Calcutta (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 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 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. (1897 AC 647)(HL).
Normally, 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. 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
Kerala 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 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 the
later clause does not destroy but only qualifies the
earlier, then the two are to be read together and effect is
to be given to the intention of the parties as disclosed by
the deed as a whole" (per Lord Wrenbury in Forbes v. Git
[1922] 1 A.C. 256).
A statutory proviso "is something engrafted on a
preceding enactment" (R. v. Taunton, St James, 9 B. & C.
836).
"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 import into
the enacting part something which is not there, but where
the enacting part is susceptible to several possible
meanings it may be controlled by the proviso (See Jennings
v. Kelly [1940] A.C. 206).
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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
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 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 Dock Co. (1884 (9)
AC 448 (H.L.), 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. (1986 (1) SCC 465) and Smt. Parayankandiyal
Eravath Kanapravan Kalliani and Ors. v. K. Devi and Ors.
(AIR 1996 SC 1963). In an oft-quoted passage, Lord Asquith
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 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 modern
legislation. Sometimes 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
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 (HL)
"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 ’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),
When a thing is to be "deemed" something else, it is
to be treated as that something else with the attendant
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consequences, but it is not that something else (per Cave
J., R. v. Norfolk 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 without that addition the
definition would have covered them or not": (per Lord
President Cooper in Ferguson v. McMillan, 1954, S.L.T. 109).
Whether the word "deemed" when used in a statute
established a conclusive or a rebuttable presumption
depended upon the context (See St. Leon Village Consolidated
School District v. Ronceray [1960] 23 D.L.R. (2 d) 32).
"I....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" and there is no implication of steps to be taken
before the opinion is formed or the decision is taken."(See
R v. Brixion Prison Governor ex.p. Soblen (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
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 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 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 U.P. (AIR
1992 SC 496) and Parshotam Lal Dhingra v. Union of India
(AIR 1958 SC 36)]
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.