ABRAHAM Vs. REGISTRAR UNIVERSITY OF CALICUT

JUDGEMENT

(1.) The controversy involved in this Original Petition relates to the application of R.28(bbb) of the Kerala State and Subordinate Services Rules (for short the rules) to a situation where seniors claim to be qualified on the day next after the last date of the test which they passed and assert that they were entitled to be promoted against vacancies which were created after that date but before the results were published. Petitioners submit that the effect of the fiction created by R.28(bbb) of the rules is that they being qualified seniors on those dates are entitled to be promoted against vacancies which arose subsequent to the notional date of acquisition of qualifications, in view of the provisions contained in R.28(bb) of the Rules.

(2.) A few facts are necessary to understand the rival contentions of parties. Petitioners were appointed as Assistants Grade - II in the service of the University of Calicut on 16-2-1976, 15-10-1976 and 20-1-1977 respectively. Respondents 2 to 16 commenced service later in the same category; but they acquired test qualification necessary for promotion earlier than the petitioners. Petitioners acquired the said qualifications in the tests conducted in November-December, 1979, the last dates of the examinations in which they appeared being 30-11-1979, 3-12-1979 and 5-12-1979 respectively. The results of those tests were published in the Kerala Gazette dated 22-4-1980, but the Public Service Commission had published the results in its office and sent out communications as early as on 29-2-1980 (Ext. P11). Vacancies arose in the promotion category of Assistants Grade - I on 20-12-1979, 26-12-1979 and 14-1-1980. Respondents 2 to 5 were promoted against those vacancies under Ext. P1 order dated 8-2-1980. Five vacancies arose on 16-1-1980, 2 vacancies on 18-1-1980, 1 each on 7-2-1980 and 8-2-1980 and 2 vacancies arose on 1-3-1980. Respondents 6 to 14 were appointed against those vacancies in Ext. P8 order dated 6-3-1980. In Ext. P9 order dated 5-4-1980, respondents 15 and 16 were temporarily promoted with effect from 1-3-1980 as Assistants Grade - I. In the meantime, petitioners submitted that they had become qualified under R.28(bbb) of the rules with retrospective effect prior to the date of occurrence of the vacancies and therefore they were entitled to be promoted in preference to their juniors. One such representation was Ext. P2. In Ext. P3 order dated 19-6-1980, petitioners were promoted with effect from 27-2-1980 (Petitioners 1 and 2) and 29-2-1980 (petitioner 3) as Assistants Grade - I. In Ext. P4 order dated 17-6-1980, the University regularised the temporary promotions of 27 Assistants Grade - I including respondents 2 to 16. In Ext. P5 order dated 21-2-1983, the second petitioner was informed that his submission -- Ext. P2 -- was engaging attention of the University. He persisted in his claim by sending Ext. P6 representation. Without disposing of those representations, the University issued Ext. P7 order dated 4-5-1983 promoting respondents 3, 4, 5 and 7 to the still higher posts of Senior Grade Assistants with effect from 21-4-1983. Petitioners challenge Exts.P4 and P7 orders and seek the issue of a writ of mandamus directing the first respondent to review the promotions of respondents 2 to 16 to the category of Assistants Grade - I applying the provisions of R.28(bbb) of the rules.

(3.) The first respondent has filed a counter affidavit. According to it, the petitioners, though seniors to respondents 2 to 16 in the category of Assistants Grade- II, could not claim the benefits of R.28 (bbb) of the rules for ranks above the latter. The vacancies in which the respondents were appointed arose from various dates from 20-12-1979 to 1-3-1980 viz., before the results of the petitioners were published in the gazette. It is the case of respondents that the rule which applies to vacancies which arose upto the date of publication of the results of the tests in which the petitioners became successful, is R.28(bb) of the rules. The contesting respondents maintain that even in respect of vacancies which were retrospectively created but with effect from dates falling during the period viz., day next after the test and its publication should also be filled up under R.28(bb) of the rules and the deeming provisions contained in R.28(bbb) of the rules will not apply to such vacancies. It is the interplay of these two rules that is the subject matter of this Original Petition.