V.P. Gopalan Nambiyar, C.J.
1. This batch of eases--a writ appeal and three writ petitions--were heard together, as they raised a rather tricky question in regard to the construction of a service rule and its inter relationship to certain connected rules. The Rule is now embodied as Rule 28(bbb) of the Kerala State and Subordinate Services Rules, and prior to the said Rule, in certain Government proceedings and Government orders. The fight is not over the right to promotion--both the petitioners and the respondents have been promoted--but to the assignment of ranks and seniority and (dates of regularisation in the promoted grade. The main arguments were advanced in O.P. No. 785 of 1974, the facts of which may be noticed.
2. O.P. 785 of 1974: The petitioners and respondents 2 to 48 in this writ petition commenced service as Grade II Assistants in the Office of the Public Service Commission. Para 2(iii) of the petition sets out the petitioner's claim to seniority over the respondents. Exhibit R I statement filed with the counter-affidavit of the contesting respondents shows the relevant and material dates of service particulars, according to them. According to the Kerala Public Service Commission (Composition and Conditions of Service of Members and Staff) Regulations, 1957 framed by the Governor under Article 318 of the Constitution, the conditions of service of those serving in the Assistants Grade under the Commission are the same as those applicable to Assistance in the Administrative Secretariat of the State. That should turn the enquiry to the service conditions of Assistants in the Administrative Secretariat. This is governed by the Kerala Secretariat Subordinate Services Special Rules, dated 5-7-1967. According to Rule 4, category 5A, of these Rules, recruitment to Assistants Grade I was to be by promotion from Grade II or appointment from upper division typists and stenographers of the Secretariat. A person directly recruited as Assistant Grade II is to be on probation for a period of two years within a continuous period of three years-vide Rule 10 of the (Special Rules). Under Rule 12 persons other than Legal Assistants appointed as Assistant Grade II, shall, within the prescribed period of probation, pass the Secretariat Manual Test and Account Test (lower). These were the conditions under the Special Rules. To complete the chain of investigation, we may refer to Rule 28(a) of the Kerala State and Subordinate Service Rules, (K.S.S.S.R. for short), which makes the satisfactory completion of probation in the lower grade, a necessary conditions for promotion to the higher one. This Rule of the K.S.S.S.R., will, by reason of Rule 2 of Part II thereof, have application, as there is no in-consistancy with the Special Rules.
3. The Departmental Tests required to be passed by the Special Rules had to be conducted by the Public Service Commission twice every year as directed by the Government in G.O. Ms. 225 dated 23-6-1964. Despite this direction the tests seem to have been held irregularly from or about 1970. The petitioner's allegation is that they were held only once in a year. The results also used to be announced fairly long after the tests. This and presumably led the Government to issue the proceedings dated 28-9-1957 (copy Ext. P1) stating that a candidate should be deemed to have passed the test on the date following the last day of the examination for the test. The position was clarified by Ext. P2 G.O. dated 20-4-1959 and by Ext. P3 G.O. dated 14-8-1971.
4. Vacancies in the cadre of Assistants Grade I would appear to have proliferated during 1972 and 1973. The available service hands in Grade II could not be promoted to that grade either for want of a declaration of satisfactory completion of probation or for want of declaration of the results of the tests. It was under these circumstances that the petitioners and respondents 2 to 48 and others were provisionally promoted as Grade I, by Exts. P4 and P5 orders dated 4-2-1972 and 3-7-1973. The promotions were in the order of seniority in the category of Grade II. Thereafter, Exts. P6 and P7 orders were issued dated 22-12-1973 and 29-12-1973 regularising the provisional promotions from the dates shown against the persons concerned in the order. The petitioners' grievance is against the dates of the regularisation of promotions thus granted to them vis-a-vis the respondents. From Ext. P6 it would be seen that 26 out of 53 Assistants promoted by Ext. P4, and one Assistant promoted earlier in 1970, were those declared to have satisfactorily completed their probation. They had thus became fully qualified for promotion from the dates noted against them. Roughly, 24 of them completed by 15-12-1972, and the remaining 2 by the end of May, 1973. Their services were regularised with effect from the dates of declaration of satisfactory completion of probation. Exhibit P7 was also on the same principle. Exhibits P6 and P7 were before Clause (c) was introduced in Rule 9 of the K.S.S.S.R. by an amendment in 1974.
5. Regularisation of promotion ordered by the above two orders is objected to on the basis of Ext. P1 G.P. dated 28-9-1957, as clarified by Exts. P2 and P3 G.Os. dated 28th April, 1959 and 14th August, 1971. The principle underlying these G.Os. has now been statutorily incorporated in Rule 28(bbb) of the Kerala State and Subordinate Service Rules, which reads as follows:
28(bbb). Where a pass in any examination or test confers on a parson the title to any right, benefit or concession, such title to the right, benefit or concession shall be deemed to have accrued on the day following the last day of the whole examination or test in which he has successfully completed the examination or test by passing one or more subjects. This principle shall be applicable for the drawal of increments and for promotions to posts not involving change of duties against vacancies remaining unfilled for want of test qualified hands.Note: Where a person can choose between two examinations or tests or corresponding subjects/papers of two examinations or tests and where the two examinations or tests conducted during the same period and on two different dates, the benefit of passing the examination or test shall be deemed to have accrued on the day following the last date of the whole of the examination or test which ends on the later date.
But as the said Rule was inserted only by an amendment dated 4-4-1974, the present case is not governed by it, but by the G.Os. noticed. Exhibit P1 proceedings dated 28-9-1957 directed that the Madras practice of regarding title to any right benefit or concession depending on the passing of an examination or test, to have accrued on the date following the last day of the test or the examination, be adopted in the Kerala State with effect from 1st November, 1956 only so far as the drawal of increments is concerned. It was also clarified that the criterion for promotion was whether the person to be promoted was test-qualified on the date of the occurrence of the vacancy, and as this would be known only on the publication of the results, promotions should take effect only from the date of publication of the results. By Ext. P2 G.O. dated 20th April, 1959, the benefit of the Madras principle, given a limited operation only for drawal of increments in Ext. P1, was extended to the sphere of 'promotions not involving change of duties against vacancies remaining unfilled for want of test qualified hands' with effect from 28th September, 1957' (the date of Ext. P1 proceedings). Exhibit P3 introduced a further clarification that the right, benefit or concession dealt with in Exts. P1 and Ext. P2 should be deemed to have accrued only on the date following the last day of the whole examination. It will thus be seen that Rule 28(bbb) merely repeats the language of Exts. P1 and P2. The petitioners have given, in para 11 of their petition, in a tabular statement, their dates of joining duty, declaration of probation, the last date of the test taken by them, and the date of regularisation in Grade I. The dates stand thus:
Petitioner No. Date of joining Date of declaration Last date of test Date of regularization duty of probation examination in Grade I.1 24-9-70 25-9-72 29-6-73 31-10-732 27-7-71 27-7-73 Do. Do. 3 28-9-70 28-9-72 Do. Do.4 22-9-70 15-12-72 Do. Do.5 20-5-71 20-5-73 Do. Do.6 14-12-70 27-12-72 Do. Do.7 24-9-70 24-9-72 Do. Do.
Their grievance thus is that regularisation of promotion had been ordered only from 31-10-73 instead of from 30-6-73 i.e., the date following the last day of the test. Therefore, they seek a declaration that they (except the 2nd petitioner) are entitled to regularisation of promotion from 30-6-73, and the 2nd petitioner, from 28-7-73. They complain that the postponment of their date of regularisation has affected their seniority in the First Grade.
6. The case of the petitioners is that under Exts. P1 to P3 proceedings and G.Os. and also under Rule 28(bbb), declaration of result of the test would relate back to the date following the last day thereof. On that date, by fiction, the right title or benefit shall be deemed to have accrued to the one whose success was subsequently declared on publication of the results. The right thus related back, must take effect from the antecedent date, and cannot be denied this effect. This is further emphasised by reference to the fact that the promotions granted under Exts. P4 and P5 were purely provisional promotions under Rules 9 and 31 of the Kerala State and Subordinate Services Rules, which on the express terms of these Rules, and also on the strength of the judicial decisions, would confer no preferential rights on the appointees, either for re-appointment of for seniority--vide Rule 9(a)(iv) and Rule 31(2)(d). See also the decision in Chacko and Ors. v. State of Kerala (1974) K.L.T. 215.
7. Giving the matter our careful consideration, we think this argument should be accepted and should prevail. The rules relied on by counsel for the respondent to displace the effect of Rule 28(bbb) of the Kerala State and Subordinate services Rules and the Government proceedings and G.Os., which preceded the same (Exts. P1 to P3), have only confirmed our impression. Sri Sivaraman Nair, counsel for the respondents relied on Rule 12 of the K.S. & S.S.R. which is as follows:
12. Qualifications for promotion: (a) where general educational qualifications, special qualifications or special tests are prescribed by the Special Rules of a service for any category, grade or post therein, or in a class thereof, which are not prescribed for a category or grade in such service or class carrying a lower rate of pay and no member in the category or grade carrying the lower rate of pay is eligible for pormotion to such category, grade or post a member in such lower category or grade may be promoted to the category or grade carrying the higher rate of pay temporarily until a member of the former category or grade qualified under this rule is available for promotion. A member temporarily promoted under this rule shall not by reason only of such promotion, be regarded as a probationer in the category or grade to which he has been promoted, or be entitled to any preferential claim to future promotion.
(b) * * * *
It appears to us that this rule makes it clear that the promotion of the junior is only temporary and would not entitle the temporary promotee to regard himself as a probationer or to assert any preferential claim to future promotion. While Rules 9 and 31 negatively state that a temporary appointment shall confer no right, Rule 28(bbb) on the other hand, in positive terms, confers rights. Between them these Rules seem to embody the positive and the negative aspects of the rights which are material for the purpose of this case. Negatively, a provisional appointment confers no right on the appointees; positively, the declaration of result of the test, relates back to the date following the last day of the test, and right and title to promotion, benefit or concession, accrues on that date. Exhibit P2 G.O. uses the same language as Rule 28(bbb)--we have quoted the relevant portion earlier--and should receive the same construction.
8. Counsel for the contesting respondents stressed the last portion of Rule 28(bbb), that the principle stated therein shall be applicable for promotion to posts not involving change of duties 'against vacancies remaining unfilled for want of test qualified hands'. It was emphasised that the present is not a case where the vacancies remained unfilled, as contemplated by the underlined portion of the above rule; and that the respondents were-occupying the vacancies by virtue of the promotions under Exts. P4 and P5. That leads to the enquiry: what is the meaning of the expression 'vacancies remaining unfilled'? We do not think we will be justified in understanding these expressions as mere physical occupation of the posts, particularly in the light of the embargo contained in Rules 9 and 31, and the positive provision in the earlier part of Rule 28(bbb). Counsel for the respondents relied on Rule 18 of the K.S.S.S.R. 'We are not able to see anything in this Rule to deaden the force or the effect of Rule 28(bbb), or the G.Os. which preceded it. It follows that the petitioner's contention is well-founded and must be accepted.
9. Sri Sivaraman Nair, counsel for the contesting respondents stressed the sequence of events that led to the passing of the impugned orders. First came Ext. R2 dated 21-1-1972, by which the Government approved the Public Service Commission's proposal regarding the 54 posts of Grade I Assistants lying vacant for want of test-qualified hands, who had successfully completed the period of probation, the majority of them having been appointed to Grade II only in September and October, 1970. The petitioners were persons who lacked the test qualification on that date; and the respondents, lacked the satisfactory completion of the required probation. The Government approved the Commission's recommendation as follows:
Government are pleased to approve the proposal of the commission subject to the condition that as and when qualified hands become available for promotion, the temporarily promoted Grade II Assistants will be reverted unless any of them becomes qualified and eligible for promotion according to Rules.
This was followed, as the next step, by Exts. P4 and P5; and as the final step thereafter, by Exts. P6 and P7. Counsel for the contesting respondents would stress that as the petitioner and respondents alike, had notice of Exts. R2 which is recited in Exts. P4 and P5, the petitioners are barred from attacking the promotions ordered by Exts. P6 and P7. We are unable to agree. The paragraph from Exts. P6 and P7. We are unable to agree. The paragraph from Ext. R2 which we have extracted above envisages the eligibility to promotion of the temporary promoted hands only 'according to Rules'. We have pointed out that the temporary promotees were not entitled to promotion according to Rules.
10. Reliance was next placed on the ratio of a Division Bench ruling in the unreported judgment in O.P. No. 729 of 1973. The relevant portion of the judgment is as follows:
10. 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 than 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 principles, 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 promotees had completed their period of probation will not by themselves invalidate the order fixing seniority in the promotion promotee completed his probation in the eligible category.
The judgment dealt with only the completion of probation subsequent to the temporary promotions ordered as its impact on the temporary promotees. Besides, it was uncomplicated by any statutory provision like Rule 28(bbb) or Government proceedings and G.Os. like Exts. P1 to P3. For these reasons, we think the ruling has no application. For the same reason the decision of a learned Judge in O.P. No. 4737 of 1975 which followed the above ruling is also unhelpful.
11. Counsel next cited the decision of a Full Bench of this Court in James Thomas v. Chief Justice, High Court of Kerala (1977) K.L.T. 622-paragraph 13. The discussion was regarding the question whether the qualifications for promotion had to be adjudged on the date of occurrence of the vacancy or on the date of making the appointment. The decision expressly noticed that Rule 28(bbb) had no application, as the said rule was introduced by an amendment after the promotions impugned; and there were no G.Os. or proceedings of the Government or the Chief Justice, like Exts. P1 to P3 which complicate the present case. Therefore, the Full Bench decision in James case can have no application.
12. In the result, we allow the writ petition, quash Exts. P6 and P7 and direct that the petitioner's claim for regularisation of promotion and for seniority be considered in accordance with law and in the light of the observations contained in this judgment. There will be no order as to costs.
13. W.A. No. 295 of 1974: The appellant in this writ appeal is the Public Service Commission. On its behalf, its counsel very fairly and frankly stated that if O.P. No. 785 of 1974 were to be allowed, this writ appeal has to be dismissed; and if the O.P. were to be dismissed the writ appeal must be allowed. We are satisfied that this is the correct position. We have allowed the original petition. It follows that this writ appeal must fail. We dismiss the same with no order as to cost.
14. O.P. No. 445 of 1974: The orders of the Public Service Commission sought to be quashed are Exts. P5, P6 and P7, all dated 22-12-1973 varying Ext. P3 dated 6-3-1973. The service particulars stand thus: The 1st petitioner joined the service on 22-9-1970 and is senior to respondents 2 to 6 in Grade II, the 2nd petitioner joined on 30-9-1970 and is senior to respondents 4 to 6; the 2nd respondent joined on 8-10-1970; the 3rd respondent on 1-10-1970; the 4th respondent on 8-10-1970; the 5th respondent on 9-12-70; and the 6th respondent on 8-12-1970. The two years' period of probation required to be completed expired in the case of the two petitioners on 22-9-1972 and 30-9-1972. The last date of the test written by them was 7-8-72; and the results were published on 15-12-1972. Their probation was declared with effect from 22-9-1972 and 30-9-1972 by Ext. P3 order dated 6-3-1973. By Ext. P4 the petitioners were asked to show cause why the date should not be varied. The petitioners were informed that in view of Rule 19(b)(ii) of the Kerala State and Subordinate Services Rules they should be deemed to have been on probation till the publication of results, that is, 15-12-1972. Their objections were, therefore, rejected, and they were directed to await revised orders regarding the declaration of probation. Exhibit P6 dated 22-12-1973 is a copy of the said proceedings declaring their probation with effect from 15-12-1972 and modifying Ext. P3 order to that extent. Exhibit P7 is the same as Ext. P6 in O.P. No. 785 of 1974.
15. Besides supporting the arguments of counsel for the petitioners in O.P. No. 785 of 1974, on the basis of Rule 28(bbb) and the G.Os. and proceedings which preceded it (filed as P6 (1) in this original petition), counsel for the writ petitioners in this original petition raised certain additional points. It was stated that the Government's stand in Ext. P5 that the petitioners should be deemed to be on extended probation under Rule 19(b)(ii) does not take into account Rule 20(a) and 20(b) and 21 of the said Rules. Objection was also taken that by the impugned orders the probation of the petitioners was declared only from the date of the publication of the results which was in any way wrong, as, both by Rule 28(bbb) as well as by the Government proceedings dated 20-4-1959 and the subsequent G.Os., the right to promotion would accrue on the next date following the last test, which, in this case, would be 8-8-1972. This last contention should succeed in view of our judgment in O.P. No. 785 of 1974, for the same reasons noticed in that judgment.
16. It was said that even if Rule 19(b)(ii) were to apply, by reason of the proviso thereto, the material date would be the date of completion of probation and not declaration of result. But the petitioners forget that the proviso to Rule 19(b)(ii) was introduced only on 29-4-74. Although the amendment has retrospective effect from 17-12-1956, cases already settled or decided are not to be reopened. We do not wish to enter those regions as the petitioners must succeed on the basis of Ext. P8 (i).
17. It is again unnecessary to deal with the ground based on Rules 20(a) and (b) and 21. It is not necessary to extract the Rules completely, as, one of them at least, is fairly long. Rule 20(a) imposes an obligation on the appointing authority to consider the probationer's suitability for full membership at the end of the prescribed or extended period of probation. The proviso to Clause (a) places an obligation to consider such suitability as soon as the probationer has passed the prescribed test. Clause (b) provides for a consequential order declaring probation; and Clause (c) for an order of discharge. Rule 21 provides for extension of probation. The contention stressed by the petitioners' counsel is that the Government had delayed the discharge of its statutory obligations placed on them by these Rules; and for the said default of the Government the petitioners should not be made to suffer. As the petitioners are entitled to succeed on the applicability of Rule 28(bbb) and the Government orders which preceded the same it is unnecessary to evaluate this argument. Counsel for the contesting respondents contended that Rule 19(b)(ii) covers the same sphere as Rule 28(bbb) or as Ext. 18 (a). This is not so, as there is no relating back of the right gained on completion of probation to an anterior date, as is done by Ext. P8 (1) and Rule 28(bbb). In view of our judgment in O.P. No. 785 of 1974, and for the same reasons noticed therein, we allow this original petition and quash Exts. P5, P6 and P7 orders of the Public Service Commission in so far as the same varies the position of the petitioners as disclosed in Ext. P3. We direct that the rank and seniority of the petitioners and the regularisation of their promotion be re-fixed in accordance with law and in the light of the observations in this judgment. There will be no order as to costs.
18. O.P. No. 309 of 1974: The petitioner's case is on the same lines as in O.P. No. 785 of 1974. The orders sought to be quashed are Ext. P5 dated 22-12-1973 (which is the same as Ext. P6 in O.P. No. 785 of 1974), and Ext. P6 dated 22-12-1973. It was agreed that this original petition must follow the fate of O.P. 785 of 1974. In view of the reasons stated in O.P. No. 785 of 1974, we allow this writ petition, and quash Exts. P5 and P6 in so far as the same relates to the petitioner in this writ petition and direct that his seniority and rank be refixed in accordance with law and in the light of the observations contained in this judgment.