The judgment emphasizes the impact of the rules on seniority, the exercise of residuary powers under R.39, and the need for substantial justice.

The question referred to the Full Bench particularly concerns the interpretation of R.31(e) of the Kerala State and Subordinate Service Rules, 1958 (for short the Service rules). When persons directly recruited were pushed down in the seniority list below some persons who were promoted provisionally, they contended that as per the rules, that cannot be done. But Government maintained that what they did was correct. 'So those persons who are directly recruited challenge the Government orders. As the original petitions were referred to the Division Bench, their Lordships, in turn, referred them to the Full Bench. This was in view of an apparent conflict between the Full Bench decision of this Court in State of Kerala v. Somarajan & others (1984 KLT 293) and the decision of Justice Dr.Kochu Thommen and Justice Balakrishnan in W.A,No. 258/1981 in which the Full Bench decision was quoted.

The facts in O.P.1134/1981 can be stated as the factual fabric for deciding the question:

Petitioners were directly recruited as Deputy Superintendent of Police (Dy.S.Ps.). They belong to SC/ST. At the time of recruitment of the petitioners as Dy.S.Ps. the party respondents herein, were in service and were holding the post of Dy.S.Ps. Those persons were given regularisation with retrospective effect. When petitioners were advised by the Kerala Public Service Commission (for short, 'the P.S.C.') for appointment as Dy.S.Ps. under R.17A of the Service Rules, they thought that they would be seniors to those who were provisionally promoted earlier. Petitioners were advised on various dates in 1976 upto January 1977 and they joined duty before the end of January, 1977. They completed probation before the end of January, 1979. Respondents 3 and 4 were provisionally promoted as Dy.S.Ps. on 4-2-1972 and 15-3-1972 respectively. Respondents 5 to 7 were promoted in 1975 and the 8th respondent was promoted in 1974.

2. Ext. P2 Government order was issued on 14-7-1977 by which services of respondents 2 and 3 were regularised from the date of their promotion. Ext. P3 is another Government order by which other persons similarly promoted as Dy.S.Ps. were also given regularisation of their services.

3. Ext. P1 (a) is the seniority list of Dy.S.Ps. dated 16-8-1979 in which respondents 3 and 4 are shown as above the petitioners' in rank (their ranks respectively are 26 and 27 whereas petitioners ranked as 74, 81 and 92 respectively.

4. Repeated representations were made by the petitioners before Government. By Ext. P8 order Government rejected all the representations on 21-2-1981. Thus the main challenge in this original petition is against Exts. P1. P1 (A), P2, P3 and P8.

5. For considering the main question referred to the Full Bench, it would be advantageous to refer to R.27 of the Service Rules which deals with seniority. It provides that seniority of a person in a service, class, category or grade shall be determined by the date of the order of the first appointment to such service, class, category or grade. However, in the explanation it is specified that for the purposes of this rule appointment made under R.9 or appointment by promotion under R.31 shall not be included. The former relates to fresh appointment on a temporary basis while the latter relates to appointment by promotion. Where it is necessary in public interest to fill a vacancy, the appointing authority is given the discretion to appoint a person when he finds that there would be undue delay in making appointment in accordance with the rules, to appoint a person temporarily "otherwise than in accordance with the said rules". This is the purport of R.9. A corresponding provision is made in regard to appointment by promotion. In this context we have to refer to S.18(a). It provides that if a person, having been appointed temporarily, is subsequently appointed to the service, he shall commence his probation from the date of such subsequent appointment. However, the appointing authority is given