JACOB THOMAS Vs. PUBLIC SERVICE COMMISSION

JUDGEMENT

(1.) The first petitioner in O.P.872/79-D, is the appellant.

(2.) The appellant and respondents 5 and 6 (who were petitioners alongwith 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.) 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.