The absence from duty in service, as defined by the relevant rules, determines the entitlement to benefits such as category change and consequential promotions. The court's decision was influenced by the interpretation of R.8 of the Kerala State and Subordinate Services Rules and its application to the petitioner's case.

1. Petitioner was a Lower Division Typist in the Social Welfare Department. The 3rd respondent was her junior in that category. She opted the post of Stenographer in a higher salary scale in the same Department. She was appointed in that post by Ext. P4 order dated 24-11-1984. The scale of salary of a Lower Division Typist was Rs. 330-515. The scale applicable to Confidential Assistants was Rs. 350-730 at that time. The difference in the scales of salary was maintained ever thereafter. The promotion post for a Lower Division Typist is that of Upper Division Typist. The ratio between Lower and Upper Division Typists was altered to the advantage of the service personnel. As a consequence of that, the third respondent, who was the erstwhile junior of the petitioner in the category of Lower Division Typists, was promoted as Upper Division Typist with effect from 16-9-1985. Petitioner requested in Exts. P5 and P6 to revert her back to the category of Lower Division Typist, so that she may obtain the advantage of promotion as Upper Division Typist in preference to the third respondent. In spite of the recommendations alleged to have been made in her favour by the Head of the Department, the Government rejected her representation in Ext. P9 dated 14-5-1987. Petitioner submitted two further representations, Exts. P10 and P11, on the basis of three orders, Exts. P12, PI3 and P14, in which options exercised by Typists who were permitted to change their category as Clerks were allowed to report. The request of the petitioner is said to have been recommended once again by the Head of the Department, under whom the petitioner was working as Confidential Assistant. A vacancy in the still higher post of

Fair Copy Superintendent arose consequent on the retirement of then incumbent on 30-4-1988. The third respondent was given additional charge of that post, since she was the senior most in the category of Senior Grade Typists. This was by order dated 27-4-1988. She was provisionally promoted with effect from 1-5-1988 by order dated 21-5-1988 under Exts. P16 and P17. The representations submitted by the petitioner were rejected in Exts. P18 and P19 communications dated 25-10-1988 and 29-10-1988. Petitioner assails those two communications as also Exts. P5, P6 and P9 whereby her request for category change and consequential benefits were rejected as also Exts. P16 and P17 whereby the 3rd respondent was promoted. Petitioner also seeks the issue of a writ of mandamus directing the first respondent to allow category change to the petitioner to the post of Lower Division Typist with consequential benefits of promotions on the basis of her original seniority in that post.

2. The stand taken by the Government in the communications which are impugned in this Original Petition seems to be that R.8 of the Kerala State and Subordinate Services Rules does not apply to cases where a person in one category in a service opts for a change to another category in the same service. Counsel for the petitioner submits that this proposition was clarified in note (2) to the rule, which was inserted by G. O. (P) No. 238/86/GAD dated 23-7-1986, and which was published as SRO. No. 1244/86 in KG No. 33 dated 19-9-1986. He submits rightly that that note has no retrospective effect and therefore her claim was not liable to be rejected on the basis of that note.

3. R.8 of the Kerala State and Subordinate Services Rules provides for certain rights in favour of members who absent from duty. It provides:

"The absence of a member of a service from duty in such service, whether on leave, Other than leave without allowances for taking up other employment on foreign service or on deputation or for any other reason and whether his lien in a post borne on the cadre of such service is suspended or not, shall not, if he is otherwise fit,render him ineligible in his turn

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(b) for promotion from a lower to a higher category in such service; and (c) for appointment to