ALI M.K. AND ORS. versus STATE OF KERALA AND ORS.

Citation: [2003] 3 S.C.R. 826 · Decided: 22-04-2003 · Supreme Court of India · Bench: SHIVARAJ V. PATIL · Disposal: Dismissed
Open in Lexace · Ask the AI about this case
Judgment (excerpt)

A 
B 
c 
ALI M.K. AND ORS. 
v. 
STATE OF KERALA AND ORS. 
APRIL 22, 2003 
[SHIV ARAJ V. PATIL AND ARIJIT PASAYA T, JJ.] 
Service Law: 
Kera/a State and Subordinate Service Rules, 1958: 
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 
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. 
F 
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, (
Excerpt shown. Read the full judgment & AI analysis in Lexace.