Rule 39 of the Kerala State and Subordinate Service Rules, 1958 confers overriding power for promotion/appointment with retrospective effect, and retrospective promotion may be permissible in cases of administrative lapses.

1. In the Department of Agriculture (Soil Conversation Unit) in the State of Kerala, there are number of posts of Assistant Director (Soil Survey) . The State Government in exercise of the powers conferred under Rule 17A of the Kerala State and Subordinate Service Rules, 1958 (for short the Rules) , decided to reserve one post to be filled up from amongst the members of Scheduled Castes and Scheduled Tribes through direct recruitment. The other posts of Assistant Director (Soil Survey) were to be filled up by promotion from amongst the Soil Survey Assistant on the basis of selection. For the purpose of selection for promotion to the post of Assistant Director (Soil Survey) , the Government decided to temporarily fill up the vacancy by promotion from amongst the Soil Survey Assistant. Consequently, the respondents were temporarily promoted from the year 1964 to 1980 as Assistant Director (Soil Survey) . Although the decision has been taken by the respondents to fill up one post of Assistant Director (Soil Survey) by way of direct recruitment purported to be Rule 17A of the Rules, but as no qualified person was available the qualification thereafter was relaxed in the year 1980. The appellant undisputedly fulfilled only the qualification, which has been relaxed by the State. He was appointed directly to the post of Assistant Director (Soil Survey) reserved for the post of Scheduled Castes/Scheduled Tribes on or about 19.8.82. It is not in dispute that although the private respondents therein have been working in the post of Assistant Director (Soil Survey) from the year 1964-1980, no Department Promotion Committee was constituted for considering their cases for promotion on a regular basis. Subsequently, the Government convened the Departmental Promotion Committee and it after considering the case of those who are temporarily promoted as Assistant Director (Soil Survey) , prepared the select list. On the said select list, the respondents were found fit for regular promotion to the post of Assistant Director (Soil Survey) . The Government, therefore, promoted the respondents with effect from the dates on which they were temporarily promoted.

2. The appellant herein filed a petition before the Kerala High Court challenging the promotion of the respondents with effect from the date of their temporary appointment. The said writ petition was dismissed. It is against the said judgment, the appellant is in appeal before us by means of special leave petition.

3. Shri C.S. Rajan, learned senior counsel, appearing on behalf of the appellant contended that having regard to Rules 18 and 31 of the Rules, the private respondents could not have been promoted with retrospective effect. Drawing our attention to the counter affidavit filed by the State, learned counsel submitted that having not exercised its residual power under Rule 39 of the Rules, the High Court must be held to have committed a manifest error in passing the impugned judgment. Learned counsel has further drawn our attention to an order of promotion dated 31.5.77 and submitted that from a perusal thereof it would appear that the concerned officer was informed that he would be reverted to the cadre of the SSA when the candidate selected by direct recruitment from SC/ST through P.S.C. for the post of Assistant Director (Soil Survey) reports for duty. It is not in dispute that the State constituted a Departmental Promotion committee and it upon considering the respective cases of the private respondents herein, prepared a select list. The said select list was approved by the State and was published in the Kerala Gazette dated 20th November, 1984. The private respondents, therefore, were promoted to the post of the Assistant Director (Soil Survey) /Senior Chemist with retrospective effect from the data from which they were holding the said post i.e. from 1964 to 1980.

4. The State of Kerala in its counter affidavit stated that since there was an administrative delay in conducting the