The main legal principle established is that the title to promotion arises on the date of occurrence of the vacancy and is not defeated by the acquisition of qualifications by a senior thereafter, as per the Kerala State and Subordinate Service Rules and relevant case law.

Petitioners in these Original Petitions challenge the seniority list of Upper Division Clerks published in the Kerala Gazette dated 7.8.90. It is their case that party respondents; who were juniors in the cadre of Lower Division Clerks, have been wrongly assigned seniority over them in the cadre of Upper Division Clerks. Hence these Original petitions.

2. Since identical issues arise for consideration in these Original Petitions, I consider it advantageous to dispose of them by a common judgment.

3. In the general pay revision order issued in G.O.(P) 290/69/Fin. dated 9.6.1969, the ratio between Upper Division Clerks and Lower division Clerks, was revised as 1:2 with effect from 1.7.1968. One additional post of Upper Division Clerk was sanctioned to each Assistant Educational Office, as per G.O. (Rt) 3170/69/Fin.dated 18.9.1969. Consequently, a large number of vacancies in Upper Division Cadre became available. By G.O. (P) 635/69/fin. dated 27.11.1969, orders were issued for improving the promotion avenues of ministerial staff. Posts of Head Clerk were also sanctioned to all Assistant Educational Offices with effect from 27.11.1969. Consequently, 150 senior Upper Division Clerks were promoted as Head Clerks with effect from 27.11.1969. To fill up those vacancies, petitioners and party respondents were promoted as Upper Division Clerks, by order dated 18-4.1970. In the seniority list of U.D. clerks covering the vacancies in the grade from 1.11.1969 to 30.6.1979, petitioners and party respondents were assigned ranks in conformity with their ranks in the lower cadre, their date of promotion being 18.4.1970. Later, by G.O. (Rt) 3723/86/G. Edn. dated 27.10.1986, promotion of U.D. Clerks was ordered with effect from 27.11.1969. When the date of promotion was projected back to 27.11.1969 from 18-4.1970, the interse ranking of the petitioners and party respondents was altered. Petitioners were assigned ranks below the party respondents, who were juniors to them in the cadre of L.D. Clerks. This alteration in the ranking is under challenge.

4. Account Test Lower and Test on Kerala Education Act and Rules, are the departmental tests to be passed by a Lower Division Clerk for promotion to the Upper Division Cadre. Besides, they have to pass M.O.P. Test during their period of probation as Lower Division Clerk. All the petitioners appeared for the departmental tests held in October, 1969. The result of that lest was published on 17.3.1970. Party respondents in these cases passed the obligatory tests earlier than the petitioners. They passed the tests before October, 1969. This fact is not in dispute. When a large number of vacancies in the Upper Division cadre arose with effect from 18-4.1970, petitioners and party respondents were fully qualified to be promoted to the Upper Division cadre. On their promotion, they carried with them the ranks they held in the lower cadre. In other words, there was no change in their interse seniority when they came to the Upper Division cadre.

5. By G.O. (Rt) 3723/86/G.Edn. dated 27.10.1986, promotion of L.D. Clerks to Upper Division cadre was to be given effect to from 27.11.1969. When the vacancies arose as on 27.11.1969, petitioners were not qualified, because they had taken the tests in October 1969 only and its results were not published as on 27.11.1969. As per Rule 28 of the Kerala State and Subordinate Service Rules, promotion which depends on the passing of any test is to be made with reference to the circumstances that exist as on the date of the occurrence of the vacancy. As on the date of the occurrence of the vacancy, viz. 27.11.1969, petitioners were not qualified and party respondents were fully qualified. They are juniors to the petitioners in the cadre of Lower Division Clerks. There were about 150 vacancies as on 27.11.1969. Party respondents are only a handful. Even after accommodating them, there remained a large number of vacancies. If the party respondents were accommodated as