ANTONY Vs. STATE OF KERALA

JUDGEMENT

(1.) THESE appeals are directed against the judgment of the learned single judge in O. P. Nos. 323/84 and 9988/83. The contesting respondents in these cases are admittedly members belonging to Scheduled Caste. They were promoted to the cadre of Upper Division Clerks sometimes in the year 1976 eventhough they had not then passed the prescribed qualifying test as they had the benefit of exemption for the period specified in R. 13 (AA) of Kerala State and Subordinate Services Rules (hereinafter referred to as the rules ). Before the expiry of the time for passing the tests they have also passed the tests prescribed for earning eligibility for promotion to the cadre of Upper Division clerks. Subsequently, a proposal was made to the effect that they should be given deemed anterior dates of promotion on the ground that there were vacancies at an earlier point of time some time in the year 1972 when these schedules caste candidates could have been promoted there being no other eligible candidates for being considered for promotion. Hence a proposal was made to give them deemed dates of promotion with effect from 1972 itself. Objections were called for and some of the appellants filed their objections. The appellants are not persons belonging to scheduled caste. They contended that they themselves have passed the test prescribed for earning eligibility for promotion to the cadre of Upper Division Clerks earlier that the contesting respondents who;are members of the scheduled caste. Therefore, they contended that the scheduled caste candidates cannot be given any deemed dates of promotion earlier than the date on which they actually passed the prescribed test and became eligible according to the rules for promotion. Those objections were overruled and a revised provisional seniority list was published as per ext. P3. Aggrieved by the overruling of their objections and according of deemed earlier dates of promotion to the contesting respondents, the appellants presented two Original Petitions are aforesaid. The learned single judge has dismissed both the Original Petitions. Hence these appeals.

(2.) THE first contention of Sri. C. S. Rajan, the learned counsel for the appellants, is that the contesting respondents could not have been given the deemed earlier dates of promotion as has been proposed in the impugned order Ext. P3. THE stand taken on behalf of the State however in this behalf is that from 1972 onwards there were large number of vacancies of Upper division Clerks which were available for being filled up but that there were not eligible qualified candidates for promotion during that time. As the contesting respondents had the benefit of exemption from passing the test under r. 13aa, the scheduled caste candidates were entitled to be considered and promoted in the year 1972 itself when vacancies were available for being actually filled up. It is on that basis that the according of deemed dates of promotion from 1972 onwards to the contesting respondents is sought to be justified. It is not possible to agree with the contention of Sri. Rajan that the promotions having actually been given on the basis of the exemption under r. 13aa in 1976, it was competent for the authorities to accord deemed dates of earlier promotion to them. If the vacancies were available as contended by the department and if no other senior qualified person was available for promotion the authorities had the necessary competence, may a duty, to promote the candidates belonging to scheduled caste as they could be promoted having regard to the exemption which was available to them under R. 13aa of the Rules. Hence it is not possible to agree with the contention of Sri. Rajan that according of the earlier dates of deemed promotion to the respondents is not permissible.