G. SIVARAJAN, J.

The question arising for consideration in these two appeals relates to the scope of Rule 9(a)(iii) of part II or the Kerala State & subordinate Services Rules, 1958(hereinafter referred to as the rules)

2. A Division Bench consisting of Justice Cyriac Joseph and Justice K. Thankappan, while considering W.A. No. 211 of 2002, found that conflicting view have been takes by two Division Benches one consisting of Justice K.G. Balakrishnan (as His Lordship then was) and Justice B.N. Patnaik by judgment dated 3.11.1997 in O.P. No. 12496 of 1997 and the other consisting of Justice K.S. Radhakrishnan and Justice G.Sasidharan in Nandagoplan v. District Collector. Idukki(2001(2) KLT 832) and took the view that in view of the apparent conflict of views in regard to the scope of rule 9(a)(iii) of the Rules in the said two judgments it is necessary that the appeal is considered by a Full Bench. Hence the two appeals are placed before the Full Bench.

Rule 9(a)(iii) of part II of the Rules reads thus:-

(iii) A person appointed under clause(i) shall be replaced as soon as possible by a member of the service or an approved candidate qualified to hold the part under the said rules.

Provided that persons appointed under clause(i) shall be replaced in the order of seniority based on length of temporary service in the unit.

Note:- For the purpose of this proviso, posts within the jurisdiction of an appointing authority shall be treated as a unit”.

Before proceeding to consider the scope of this sub rule, it must be noted that rule 9(a)(i) of part II of the Rules provides for making temporary appointments to a vacancy in a post in public interest when there arises an emergency to fill the said vacancy immediately and there would be undue delay in making such appointments in accordance with these rules and the Special Rules. The second proviso to Rule 9(a)(i) specifies an outer limit for such temporary appointments. As for the said proviso such temporary appointees other than to a teaching post, shall not be allowed to continue in such post for a period exceeding 180 days. Similarly the fifth proviso to Rule (a)(i) also provides an outer limit for such temporary appointments, in the case of Assistant Surgeons, Lecturers, Medical Officers and para Medical staff of the Health Services Department, Medical Education Department, Department of Indian System of Medicine and Homeopathy, etc. which says that such temporary appointees shall be allowed to continue for a period not exceeding one year or till a candidate advised by the Public Service Commission joins duty. Whichever is earlier The 9th proviso to Rule 9(a)(i) further provides that a person appointed under this clauses by direct recruitment to a post and discharged from services after the admissible period, shall not be re-appointed to the same post by the same appointing authority except when fresh candidates are not available for appointment through Employment Exchange, and such re-appointment shall be made only with the prior concurrence of the Commission.

3. The Division Bench of Justice K.G.Balakrishnan and Justice B.N. Patnaik in O.P. No. 12496 of 1997 considered the scope of rule 9(a)(iii) and its proviso. Petitioners, 10 in number, in that case, were staff nurses appointed under Rule 9(a)(i) of the Rules by an order dated 22.7.1996. Prior to their appointment the very same appointing authority had appointed 29 other fresh hands as staff nurses under rule 9(a)(i) of the Rules by an order dated 18.1.1996. Petitioners filed writ petition O.P. No.12496 of 1997 contending that the services of the petitioners are being terminated while retaining the staff nurses, who were appointed earlier, which according to them is contrary to the provisions of the proviso to rule 9(a)(iii) of the rules. Admittedly, the petitioners and the other 29 persons were appointed under Rule 9(a)(i) of the Rules for a period of one year from the date of joining duty or till regular hands recruit