P. Subramonian Poti, Acting C.J.
1. The question arising in both these writ appeals is the same. It is an interesting question the decision on which may be of some consequence not only to the parties to these case but to others similarly placed in the Civil Service of the State. The question concerns the right of juniors to promotion to existing vacancies before the promotion of their seniors when the juniors satisfactorily complete their period of probation a few days earlier and that only on account of the fact that the juniors were able to join service earlier than the seniors. The seniority of persons appointed on the advice of the Public Service Commission is determined not by the respective dates of joining duty but by the date of first advice. It may happen that under the same order of advice many may be advised and in such a case the seniority will depend upon the ranking in the order of advice. Some of those advised may be nearer the place of duty so much so they could join duty earlier than the others in the same advice list occupying higher ranks therein. When such juniors complete their probation a few days earlier than their seniors because of the circumstance indicated, could they claim that in the vacancies available in the category to which they are to be promoted they should be promoted in preference to the seniors? The learned single Judge in both the judgments from which these writ appeals are filed has upheld the case of the petitioners that, they being seniors in the post of Assistants Grade II in the Finance Department of the Kerala Government, respondents 2 to 4 in both the cases who were admittedly juniors in the post of Assistant Grade II should not have been promoted in existing vacancies earlier than the petitioners merely because respondents 2 to 4 happened to complete probation earlier taking advantage of the circumstance that they could join duty earlier in the post of Assistant Grade II and at the time they completed the probation vacancies to which they could be regularly appointed were available. The settlement of seniority in the promoted post has been reopened by the judgment of our learned brother Justice Vadakkel in both the cases and the Government has been directed to consider the matter afresh. That is challenged in these appeals.
2. To understand the contention in more detail it may be useful to refer to the facts of one of the two cases in some detail. We will refer to the facts in O.P. 5638 of 1976 from which W. A. No. 291 of 1979 has arisen. The petitioner therein was advised along with respondents 2 to 4 by order dated 20-10-1970 of the Kerala public Service Commission to the post of Assistant Grade II in the Finance Department of the State of Kerala. The petitioner's rank in the advice list was higher than that of respondents 2 to 4. Under Rule 27(c) of the Kerala State and Subordinate Service Rules (in short 'the Rules' when two or more persons are included in the same list of candidates advised, their relative seniority shall be fixed according to the order in which their names are arranged in the advice list. That respondents 2 to 4 are juniors to the petitioner as Assistant Grade II is not in controversy.
3. Though advised in the same list the order of appointment of the petitioner was issued later than that of respondents 2 to 4. The consequence was that while respondents 2 to 4 had joined duty in December, 1970 the petitioner joined duty only on 9-2-1971 pursuant to the communication dated 28-1-1971 relating to his appointment. It is, therefore, evident that it was not due to any fault of the petitioner that he could join only later. The period of probation is a period of two years within a period of 3 years. The petitioner as well as respondents 2 to 4 took only the minimum period of two years for completing their probation. The petitioner was declared to have satisfactorily completed his probation with effect from 8-2-1973 while respondents 2 to 4 were so declared to have satisfactorily completed probation with effect from 7-12-1971, 14-12-1972 and 19-12-1972 respectively. All of them were provisionally promoted under Rule 31 of the Rules by an order dated 10-5-1973 and the petitioner was shown as higher in rank in that order of provisional promotion. But when this was regularised by a later order. Exhibits P 3 dated 22-1-1975 respondents 2 to 4 were given dates of regularisation in the post of Assistant Grade I as 7-12-1972, 14-12-1972 and 19-12-1972, respectively while the petitioner was given only the date 9-2-1973. Thereafter the matter was being agitated at the instance of the petitioner and ultimately resort was made to this Court. Similar is the case with the petitioner in O.P. No 5542 of 1976 from which W. A. No. 292 of 1979 has arisen. The difference in that case is that the petitioner therein was advised by the Public Service Commission in an earlier list. Though respondents 2 to 4 had been advised only in a subsequent list appointment orders were issued to all of them together. Respondent 2 to 4 joined earlier than the petitioner since the petitioner was in Palghat and he seems to have taken more time than respondents 2 to 4 to join his office though within the permissible time.
4. On the facts there is no dispute. If juniors who have completed their probation satisfactorily and had obtained the test qualification required for promotion could be regularly appointed to existing vacancies, even though their seniors who have also been test qualified but have not completed their period of probation for no fault of theirs had not been promoted, promotion of respondents 2 to 4 must be found to be correct. If title to be considered for promotion arises on the occurrence of vacancies and no other questions need be considered and if on the day juniors become eligible for promotion there were vacancies which could be filled up by promoting them, in the absence of any rule which prohibits such promotion it could be said that promotions of such juniors would be possible. If such promotions are put off until the seniors also qualify themselves by completing the period of probation and acquiring the necessary test qualification so much so that when the question of promotion is actually taken up for consideration the seniors as well as juniors are qualified could it be said that seniors could be superseded by the juniors because on the date of occurrence of the vacancies the juniors alone were qualified. In other words, does the title to be promoted depend on the qualification on the date of occurrence of the vacancies or does it depend on the qualifications on the date the post is sought to be filled up On this, this Court had voiced different views. The view expressed in an unreported judgment of this Court in O.P. 2827 of 1972 by Justice Balakrishna Eradi, as he then was, which view was adopted in some other decisions of this Court, does not seem to have been followed later by this Court. The question was considered in rather some detail by a Division Bench of this Court in Ravindranath v. Calicut University (1977) Lab. I.C. 1127. Chief Justice Govindan Nair, speaking for the Division Bench in that case, has made a very lucid and analytical approach to this question. It is profitable to extract the following passage from the judgment of the Division Bench:
If the persons on probation in a class or category in a service satisfactorily completed their period of probation on different dates the question would arise in what order promotion will have to be given to them in the vacancies that had existed before the completion of the period of probation by the persons concerned. One view is that the position as on the date of the occurrence of the vacancy will have to be taken into account and if on that date there were fully qualified persons who had satisfactorily completed their period of probation they should be promoted notwithstanding the fact that there were seniors to them in that class or category who were either not qualified or had not completed their period of probation. In view of Rule 28(a)(i) and (ii) and the proviso which we have already read on the dates on which the juniors completed their period of probation they could have been promoted and the seniors who had not completed their probation then would not have been entitled to be promoted. If on that day an order had been passed promoting the juniors who had completed their probation we do not think the seniors, who had not completed their probation, would have been entitled to object by stating that they being seniors the appointing authority ought to have waited till the seniors satisfactorily completed their probation before passing orders promoting persons from the category. This principle, we think, must apply also to cases where a block of vacancies had existed before any in the eligible category had completed their period of probation. As and when the members of the eligible category satisfactorily completed their probation they could have been promoted giving them the dates on which they satisfactorily completed their probation, as the dates on which they would commence service in the promotion category. If the seniors in the eligible category completed their probation later on they could also have been promoted in a similar manner but they cannot be given a date anterior to the dates on which they completed their period of probation satisfactorily because they could not have been appointed to the promotion post on any earlier date. If this is the true principle the fact that by a combined order promotions were made and that order was passed after all the pro-motees had completed their period of probation will not by themselves invalidate the order fixing seniority in the promotion grade from the dates on which each promotee completed his probation in the eligible category.
We may mention that though Eradi, J., has considered this question in the unreported decision adverted to above, the learned Judge merely on a reference to Rule 28(bb) of the Rule which deals with promotions depending upon passing of examinations and provides that the conditions existing at the time of occurrence of the vacancies have to be noticed assumed that in cases other than those governed by Rule 28(bb) the general principles laid down in other clauses of Rule 28 of the Rules should apply. The learned Judge assumed therein that Rule 28 provided for promotions to be made taking into account only the state of things which obtained on the date of filling up of the vacancies. Rule 28 does not afford any indication that promotions are to be effected with reference to the conditions existing on the date on which the orders for promotion are being passed.
5. A Full Bench of this Court in the decision in James Thomas v. Chief Justice (1977) KLT. 622 has also expressed the view that the general rule is that promotions are to be decided upon with reference to time of occurrence of vacancies and not the time of making the appointments. We think there is considerable force in the view that it is the time of occurrence of vacancy that should be relevant for determining the question of promotion and not the time the order of promotion is passed. The relevant date must be definite and not depending upon the volition of the authorities as otherwise the determination would be arbitrary. If it were to be the date of promotion that is to be relevant for determining the title to such promotion the rule is capable of arbitrary exercise. Even if it is honest exercise that would be arbitrary because the fate of the service career will depend in each instance upon the time taken by the concerned authority in passing the order of promotion. On the other hand, there is definiteness in treating the date of occurrence of the vacancy as that which would determine the title of the person to be considered for promotion. The view taken by the Division Bench in Ravindranath v. Calicut University (1977) Lab. I.C. 1127, appeals to us to be the rational view.
6. Sri V. Sivaraman Nair, learned Counsel appearing for the appellants in these cases submits that the rule of determining the right to promotion of the junior on the basis of qualifications on the date the vacancy occurs will have no application when vacancies are in existence even prior to the date the junior becomes qualified and should be confined to cases where vacancy occurs after the junior gets qualified and before the senior also gets qualified. The Division Bench in the decision adverted to consider the question of filling up of a block of vacancies. We agree with the view expressed therein that it would make no difference whether the vacancies already exist or the vacancies occur after the juniors become qualified. If there is vacancy as and when a person becomes qualified for being promoted to such vacancy he would be entitled to be considered for promotion in that vacancy. If there is no vacancy when a person becomes qualified for promotion and a vacancy arises while he remains qualified, as and when such vacancy arises his case for promotion calls for consideration. Therefore, the fact that in these cases there were vacancies available even before respondents 2 to 4 completed their probation would make no difference at all.
7. The learned Judge allowed O.P. 5542 of 1976 on the short ground that he was following the decision in O.P. 5638 of 1976. The learned Judge in the judgment in the latter case referred to Rule 28(a)(i) as it now stands. Rule 28(a)(i) reads thus:
28(a) Promotion. (i) No member of a service or class of a service shall be eligible for promotion from the category in which he was appointed to the service unless he has satisfactorily completed his probation in that category.Provided that a probationer in a class, category or grade shall not be superseded for promotion to a higer class, category or grade by his junior, if the vacancy in the higher class, category or grade arises within the period specified in the Special Rules for completion of probation in the class, category or grade in which he is probationer and if he has passed the test or tests prescribed for successful completion of probation and is otherwise eligible and suitable for such promotion; but his promotion shall be subject to the condition that he satisfactorily completes the probation in the class, category or grade from which he was promoted within the period prescribed, therefore, and for this purpose the period of service put in by him in the higher class, category or grade shall be reckoned towards probation in the class, category or grade from which he was promoted and also in the class, category or grade to which he was promoted.
No doubt the proviso appears to answer the petitioner's case. The learned Judge found so. The situation that has arisen in these cases is envisaged in the said proviso and if the proviso applies the solution is simple. The senior will have to be promoted subject to the condition that he has satisfactorily completed his probation and in case he does not satisfactorily complete the probation within the period prescribed, the second proviso to Rule 28(a)(i) will operate to revert him. The second proviso will have no application here as the petitioner did complete his period of probation within the period prescribed. So if this is a case to which the proviso to Rule 28(a)(i) would apply, what has been found by the learned single Judge must be held to be right. The petitioner should then succeed. But there is an obvious mistake in applying the proviso to the case since the proviso was added only by G.O. (P) No. 29/78/GDA dated 16-1-1978 published in the gazette dated 31-1-1978. We are concerned with a situation which existed much earlier and the proviso which is not retrospective will not apply to it Evidently this was not brought to the notice of the learned single Judge.
8. It is urged that the rule along should be taken to have been what it now is, as, otherwise, it would be unfair to persons who for no fault of theirs have been treated as juniors as against their juniors in the lower post. There is no plea of invalidity of any rule urged in the Original Petition or before us and, therefore, we are not called upon to consider any such case. We have only to apply the rule as it stands. May be the desirability of a proper rule has come to the notice of the Government now and consequently the proviso have been incorporated in Rule 28(a)(i). Perhaps there is reason why the rule was not amended retrospectively. It is not for us to speculate about this here. We need only consider whether the proviso will have application to these cases. On that we have expressed our view.
9. Consistent with our finding that the Government was right in considering the question of promotion with reference to the date of occurrence of vacancies in the absence of a rule to the contrary in force during the relevant period it goes without saying that interference with the Government's order is not called for. The consequence is that the writ appeals are allowed, the judgments of the learned single Judge are vacated and the Original Petitions are dismissed. No costs.