The main legal point established in the judgment is that promotions should be made with respect to the time of the occurrence of the vacancy and not the date of making the appointment, and the role of the Public Service Commission in recruitment to the State Government service.

1. A question of considerable importance in service law arises for consideration in this case. A vacancy was notified to the Public Service Commission as, when the vacancy arose, under the Government Order governing appointments to the vacancy, nobody in service was entitled to be promoted and appointed in the vacancy. But before the candidate recruited by the Public Service Commission was actually appointed in the vacancy, the Government Order governing appointments to the vacancy was amended and persons in service became entitled for promotion to the post. The question is whether the appointment of the Public Service Commission recruit is bad in law and, on the basis of the subsequent amendment to the Government order, any person in service who has become entitled for promotion can insist that he should be given appointment in the vacancy.

2. The petitioner in the original petition is the appellant in the writ appeal. The appellant is an Electrician in the Government Transport and Equipment Organisation, Muvattupuzha. He is a Diploma Holder in Electrical Engineering and has experience in Automobile Workshop. A post of for man became vacant from 22-12-1976. As per G O. (MS) No.13/75/DD dated 29-1-1975 (Ext. RI), which governs the appointments in the establishment, nobody was entitled to be promoted and appointed in the vacancy. Hence, on 17-1-1977 the vacancy was notified to the Kerala Public Service Commission. Thereafter, by G.O (MS) No. 91/78/DD dated 14-6-1978 (Ext. P1) revised notifications and methods of appointments for the post of Foreman were fixed. After the issue of Ext. P1, the General Foreman of the establishment sent Ext. P2 communication to the Ist respondent-State pointing out that the appellant-petitioner can be promoted and appointed as Foreman in the vacancy. As the Ist respondent did not do anything in the matter, the appellant-petitioner approached this Court with the original petition claiming the vacancy of Foreman and also for staying the appointment, if any, of Foreman by direct recruitment.

3. Notice on the original petition was ordered on 2-8-1978 On the very same date, this Court ordered an interim stay of appointment to the post of Foreman which, according to the 1st respondent, was received only on the afternoon of 11-8-1978. Before that, on the forenoon of 11-8-1978 the 2nd respondent, advised by the Public Service Commission, was appointed as Foreman. The appellant then amended the original petition to challenge the appointment of the 2nd respondent (Ext. P3).

4. A counter-affidavit was filed on behalf of the Ist respondent-State justifying the appointment of the 2nd respondent and contending that the appellant has no right to claim the vacancy in question as on the date of occurrence of the vacancy the appellant was not entitled to be promoted and appointed in the vacancy and as the vacancy was already notified to the Public Service Commission before the appellant became entitled for promotion and appointment in the vacancy as per the Government Order dated 14-6-1978.

5. The learned judge who heard the original petition, dismissed the same holding:

"Though the interview itself is subsequent to the amendment of the Rule, if appears to me that the Public Service Commission was perfectly right in issuing the advice on 4-7-1978 on the basis of the tests conducted by the Public Service Commission and the interview held on 20-6-1978. The second respondent having been so advised, I see no reason as to why the first respondent could not appoint him in the post for which the Public Service Commission has advised him."

6. It is the above judgment of the learned Single Judge that the appellant has challenged in this writ appeal. The learned counsel for the appellant contended that as the Government Order governing appointment to the post of Foreman was amended before the 2nd respondent advised by the Public Service Commission was actually appointed and, as the above appointment was against the rule