TMI Blog2003 (4) TMI 561X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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. 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 nonofficial respondents. Appellants, as noted above, have questioned correctness of the Full Bench s decision. 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 dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actorily complete the period of probation on his return; provided further that a member of a service who is appointed to another service, and is a probationer or an approved probationer in the latter service, shall not be appointed under clause (c) to any other service for which he may be an approved candidate unless he relinquishes his membership in the latter service in which he is a probationer or he approved probationer: Provided further that this rule shall not have retrospective effect so as to disturb the decision taken by the Travancore Cochin Government in respect of the Travancore Cochin personnel: Provided also that this rule shall not apply in the case of a member whose absence from duty in such service is by reason of his appointment to another service not being Military Service, solely on his own application, unless such appointment is made in the exigencies of public service. Note 1:- An appointment made in pursuance of applications 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 this rule. Note 2:-The benefit of this rule shall not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut an exception to the main provision to which it has been enacted as a proviso and to no other. (See A.N. Sehgal and Ors. v. Raje Ram Sheoram and Ors. (AIR 1991 SC 1406), Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal and Ors. (AIR 1991 SC 1538) and Kerala State Housing Board and Ors. v. Ramapriya Hotels (P)Ltd. and Ors. (1994 (5) SCC 672). This word (proviso) hath divers operations. Sometime it worketh a qualification or limitation; sometime a condition; and sometime a covenant (Coke upon Littleton 18th Edition, 146) If in a deed an earlier clause is followed by a later clause which destroys altogether the obligation created by the earlier clause, the later clause is to be rejected as repugnant, and the earlier clause prevails....But if the later clause does not destroy but only qualifies the earlier, then the two are to be read together and effect is to be given to the intention of the parties as disclosed by the deed as a whole (per Lord Wrenbury in Forbes v. Git [1922] 1 A.C. 256). A statutory proviso is something engrafted on a preceding enactment (R. v. Taunton, St James, 9 B. C. 836). The ordinary and proper function of a proviso coming after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncil (1951 (2) All ER 587). The word deemed is used a great deal in modern legislation. Sometimes it is used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible (per Lord Radcliffe in St. Aubyn (L.M.) v. A.G. (No.2) (1951) 2 All E.R. 473 (HL) Deemed , as used in statutory definitions to extend the denotation of the defined term to things it would not in ordinary parlance denote, is often a convenient devise for reducing the verbiage of an enactment, but that does not mean that wherever it is used it has that effect; to deem means simply to judge or reach a conclusion about something, and the words deem and deemed when used in a statute thus simply state the effect or meaning which some matter or thing has the way in which it is to be adjudged; this need not import artificially or fiction; it may simply be the statement of an undisputable conclusion ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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