K M KURIAKOSE Vs. REGISTRAR M G U

JUDGEMENT

(1.) What is the crucial date for application of Rule 28(bbb) of the KS and SSR is the issue arising for consideration in this case. Whether a senior becoming eligible owing to exemption after the occurrence of the vacancy and after the examinations taken by his Juniors, conducted by the Public Service Commission but before the publication of the result is entitled to get promotion on the basis of exemption is the question to be tackled. The vacancy in the cadre of Upper Division Clerk arose under the respondent college on 1.3.1999. As on that date none in the feeder category of Lower Division Clerk was qualified. Petitioner attained the age of 50 years on 19.9.2000 and according to him, being exempted from test qualification he is entitled for promotion with effect from 20.9.2000. In fact the management promoted the petitioner with effect from 20.9.2000. Later, that was interfered with by the department on the ground that the 4th respondent got qualified on 14.7.2000, the day following the last day of the examination conducted by the Public Service Commission. The result of the examination was published only on 16.10.2000. According to the petitioner, the date of declaration of the result is the crucial date and only if the vacancy remained unfilled for want of qualified persons, the 4th respondent can stake a claim for promotion to the post with effect from the last date of the examination. According to the 4th respondent, the date of occurrence of vacancy being March 1999, by virtue of the deeming provision under Rule 28(bbb) of the KS and SSR, it is he who first qualified on 14.7.2000, the day following the last date of the examination.

(2.) I am afraid the contention of the 4th respondent cannot be appreciated. Rule 28(bbb) to the extent relevant reads as follows:

(3.) For application of Rule 28(bbb), the promotion should be to the post not involving a change of duty and the vacancies must remain unfilled for want of test qualified hands. In the event of a senior on the basis of the exemption under Rule 13-B of the Rules becoming eligible prior to the publication of the result, that senior has a right to be considered, on the day following the acquisition of eligibility viz. exemption from passing the test. The opening words of the Rule 28(bbb) would show that the pass in the test gives a right to be considered, subject to the other conditions indicated above. If the vacancy remains unfilled as on the date of publication of the result only, such person gets a right to be considered for promotion in the existing vacancy with effect from the last date of the examination. In other words, if there is no vacancy as on the date of publication of the result, that person has no right to be considered for promotion. Naturally there arises no question of any promotion with effect from the last date of the examination. The effect of deemed passing of the test is only to enable the person to claim promotion with effect from the last day of the examination, in case there is a vacancy remaining unfilled as on the date of the publication of the result. The result of the examination was published on 16.10.2000. By the time the petitioner had completed 50 years and thus he became eligible for promotion, being exempted from passing the test qualification. The moment the eligibility arises, petitioner has a right to be considered. It cannot be said that that consideration should await the publication of the result of examination under one by the juniors, in the instant case the 4th respondent. In this context it will be profitable also to refer to a decision of this court reported in Gopinathan Unnithan v. State of Kerala 1991 (2) KLT 112 wherein it has been held as follows: