Balakrishnan Nair, J.

The point that arises for decision in this appeal is, whether a Senior Grade Assistant in the Secretariat Subordinate Service has to complete one year's service before she is promoted to the post of Selection Grade Assistant.

2. The brief facts of the case are the following:

The writ petitioner, the respondent herein, was appointed as Assistant Grade-II in the Secretariat Subordinate Service on 1.6.1990. She was promoted as Assistant Grade-I on 25.5.1996. She was further promoted as Senior Grade Assistant by Ext.P11 order dated 27.10.2001. She went on leave without allowance for a period of three years from 12.11.2001. The leave was granted as per Ext.P12 order dated 9.11.2001. The said leave was extended for a further period of one year by Ext.P13 order dated 25.10.2004. Later, she rejoined duty on 18.7.2005 cancelling the unavailed portion of leave. Immediately, she claimed promotion to the post of Selection Grade Assistant, as vacancies were available in that post. Ext.P15 was the representation filed by her. The Government considered the representation and rejected it by Ext.P17 stating that since no probation was prescribed for the post of Senior Grade Assistant, she has to complete at least one year's service in that post within a continuous period of two years to become eligible for promotion. This decision was taken relying on the proviso to Rule 28(a)(ii) of the Kerala State and Subordinate Service Rules (for short 'KS & SSR')

3. The 1st respondent/petitioner was of the view that since the post of Selection Grade Assistant is a Higher Grade Post of Senior Assistant, her case is covered by Rule 28(e) of the General Rules. Raising this contention, she moved the Government. As per the direction of this Court, the Government reconsidered her case and again rejected her claim by Ext.P26. The writ petition was filed challenging Exts.P17 and P26. She sought a further direction to promote her as Selection Grade Assistant with retrospective effect from the date of occurrence of first vacancy in that category after she rejoined duty on 18.7.2005. According to the 1st respondent/writ petitioner, the proviso to Rule 28(a)(ii) of the KS & SSR has no application and Rule 28(e) which has been incorporated in the Special Rules for Kerala Secretariat Subordinate Service, as the 2nd provisio to Rule 10 thereof, will govern the case. The appellants, who are respondents in the writ petition, resisted the prayers supporting the stand taken by them in the orders impugned.

4. The learned Single Judge, after hearing both sides, allowed the writ petition. According the learned Single Judge, Rule 10 of the Special Rules for the Secretariat Subordinate Service prescribes probation for various posts. Therefore, Rule 28(a)(ii) of the KS & SSR would not apply. Based on that finding, reliefs were also granted. The respondents in the writ petition, feeling aggrieved by the said judgment, have preferred this Writ Appeal.

5. We heard the learned counsel on both sides. The learned senior Government Pleader, Sri. Benny Gervasis, submitted that the finding of the learned Single Judge that since probation is prescribed for certain posts in the Secretariat Subordinate Service, the proviso to Rule 28(a)(ii) of the KS & SSR have no application is untenable. If, probation is not prescribed for a particular post, then for further promotion from that post, the 2nd proviso to Rule 28(a)(ii) of the KS & SSR will govern. According to the learned senior Government Pleader, the learned Single Judge has misread the Rule. Sri.K.P.Rajeevan, the learned counsel for the 1st respondent, fully supported the view taken by the learned Single Judge. He further added that, in view of the 2nd proviso to Rule 10 of the Special Rules, it should be taken that the operation of the proviso to Rule 28(a)(ii) of the KS & SSR stands excluded. Something not expressly stated in the Special Rules concerning probation cannot be made applicable by the proce