- (1.) The petitioner is the applicant before the Kerala Administrative Tribunal herein after referred to as a "Tribunal". The petitioner was appointed as a Lower Division Clerk on 3-9-1994. His probation was declared on 3-9-1996. He was promoted as U.D. Clerk on 30-7-2002. The petitioner is a member of Scheduled Caste community. It is his case that being a member of the Scheduled Caste community even though he had not passed the departmental tests till 30-5-2002, he was entitled to be temporarily promoted under Section 13A1(a) of KSSR. It is his further complaint that his juniors were promoted by proceedings dated 1-12-1999 (Annexure A-2 in the application). Respondents 4 and 5 were promoted thereunder. The 3rd respondent came to be promoted by Annexure A-3 dated 29-7-2000. The 3rd respondent is also a member of the Scheduled Caste. Respondents 3 to 5 are juniors of the petitioner in the cadre of LD Clerk. Annexure A-4 is the State wise final seniority list. The petitioner represented against the denial of benefit of temporary exemption provided under Section 13A(1). Thereafter he was included in the revised final seniority list of UD Clerk/SVO for the period from 1-6-1996 to 31-12-2000 as Rank No. 2306 with the assigned date 11-11-1999. He was not satisfied with the said seniority. According to him respondents 3 to 5 were his juniors who were placed above him. Against Annexure A-6 seniority list in which he was shown at Rank No. 2306 with assigned date 11-11-1999, the petitioner filed Annexure A-8 representation. Thereafter there is reference to proceedings in the High Court directing revision of provisional lists. He would state that in Annexure A-9 provisional seniority list his position was shown correctly. Applicant was in Annexure A-9 shown as Serial No. 7152 which was done according to him after granting benefit of Rule 13A1(a), respondents 3 to 5 were shown as assigned Rank Nos. 7154, 7156 and 7161. But it is a case of the petitioner that in the final seniority list published as Annexure A-10 respondents 3 to 5 had been given Rank No. 7051, 7053 and 7057 whereas the petitioner is given Rank No. 9449. The applicant/petitioner filed appeal under Rule 27B before the Government (Annexure A-11). The same was rejected by Annexure A-12. He filed Annexure A-13 representation and that is rejected by Annexure A-14. It is in the said circumstances the petitioner filed the Original Application before the Tribunal seeking the following reliefs: (i) To call for the records leading to Annexure A-12 and A-14 and quash the same; (ii) To declare that applicant is entitled for temporary exemption under Rule 13A(1)(a) when Annexure A-2 proceedings was issued by 2nd respondent. (iii) To issue a direction to the 1st respondent to place the applicant in-between rank number 7050 and 7051 in Annexure 10 final seniority list of UDC/SVO. (iv) To issue a direction to the 2nd respondent to promote the applicant to the post of Head Clerk and Deputy Tahsildar notionally with effect from the date of his immediate juniors was promoted. (v) To issue such other orders or directions as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case.
(2.) The Tribunal dismissed the application and took the following view: We notice that that large number of vacancies in Upper Division cadre became available on 1-11-1998 as a result of the orders of the Government. The applicant does not have a case that the third respondent who is a member of the Scheduled Caste did not clear the tests within three years of her notional date of promotion, 1-11-1998. The claim of an incumbent for promotion has to be considered with reference to the date of occurrence of the vacancy or when the turn of the incumbent arose. For various reasons, the actual order or promotion will be passed only later. Passing of such an order belatedly cannot adversely affect or be advantageous to be incumbents concerned. Their claims have to be considered with reference to the date when their turn arose. So, the date of appointment mentioned in Rule 13A(2) has to be understood in that manner. Then, that date will be clear and specific. If that date is to be taken as the actual date of promotion that will depend upon the volition of the appointing authority and will play havoc with the rights of many. See the decision of the Full Bench of the Hon'ble High Court of Kerala in Varghese and others v. State of Kerala and others, 1981 KerLT 458), wherein Subramanian Poti, C.J. has articulated the above aspect in the following words: "A Full Bench of this Court in the decision in James Thomas v. Chief Justice, 1977 KerLT 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 on 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 file of the person to be considered for promotion. The view taken by the Division Bench in Ravindranath v. Calicut University,1977 LabIC 1127), appeals to us to be the rational view." We notice that the applicant should have been promoted when his juniors were promoted and he should have been allowed to enjoy the benefits of that promotion also. But, when it comes to enjoying the seniority on the strength of continuous service, his date of acquisition of test qualification and the assigned date of promotion becomes relevant. If the applicant was liable to be promoted on a particular date and if he happened to be promoted only later, he can claim the benefit of seniority with continuous service on clearance of the tests within the stipulated time-limit only with reference to the date when his turn arose actually. It is described in common parlance as the notional date of promotion. The claim of the applicant that it should be based on the actual date of promotion will import uncertainty into the claims of seniority of many incumbents and can engender several disputes concerning the seniority. By delaying the promotion by a few days, the appointing authority can grant undue advantage on an incumbent. So, we think, me view taken by the Government that it should be the notional date which is relevant is the correct interpretation to be placed on the above quoted rules. The same cannot be described as irrational or perverse and something which no man in his senses will take. A sensible and plausible view has been taken on the construction to be placed on the relevant statutory provisions. We are not justified in interfering with the same in exercise of our power of judicial review.
(3.) We heard the learned counsel for the petitioner and the learned Government Pleader.;