IMPORTANT POINT
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 exigencies of public service for the purpose of Rule 8 of the Kerala State and Subordinate Service Rules.

JUDGMENT

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.

2. 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.

3. 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.

4. 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 post 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.

5. 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.

6. 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 promoti