Balakrishnan Nair, J.

The appellant was the writ petitioner. The respondents herein were the respondents in the Writ Petition. This appeal throws up a legal conundrum as to whether a person appointed after three years from the date of advice by the Public Service Commission (for short ‘PSC’), for the reason that he was facing disciplinary proceedings, could claim seniority with effect from the date of advice, as provided under Rule 27(c) of the Kerala State and Subordinate Services Rules (for short ‘KS & SSR’).

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

The appellant was working as a Lecturer in Surgery in the Medical College, Kozhikode. The applied for leave without allowance from 26.7.1994 to 21.11.1994. Later, he applied for leave without allowance for 119 days from 23.11.1994. But, the leave was not granted. According to the appellant, he resigned from service on 2.11.1994 which was to take effect from 23.11.1994. Later, he sent a reminder on 26.10.1995, requesting to accept his resignation letter. But, according to the respondents, they did not receive any resignation letter and the appellant remained unauthoriseldy absent after submitting the leave application for 119 days’ leave from 23.11.1994. The appellant was called upon to rejoin duty by a registered letter. But, the communication was returned unclaimed. So, he was treated as unauthoriseldy absent from 23.11.1994 and disciplinary proceedings were initiated against him. The Director of Medical Education issued to him a memo of charges accompanied by a statement of allegations. They were also returned unserved. So, the Director of Medical Education published the memo of charges in two leading Malayalam dailies. Even thereafter, no written statement was received from him. So, the Government ordered to conduct an enquiry under Rule 15 of the Kerala Civil Services (Classification Control and Appeal) Rules, 1960. Dr. Umadathan, the enquiry officer, held the enquiry. The appellant did not turn up to face the enquiry. But, he sent a representation on 19.1.1996, expressing his willingness to quit the service and also tendered resignation. The Government did not accept his resignation, as the disciplinary proceedings were pending against him. Based on the enquiry report, the appellant was served with Ext.P6 notice dated 28.3.1996, directing him to show cause why he should not be removed from service. The appellant did not respond. Thereafter, in consultation with the PSC, the Government passed Ext.P3 order dated 27.12.1999, removing him from service with effect from 23.11.1994.

3. In the meantime, the appellant was advised for appointment by the PSC on 3.2.1997, to the post of Lecturer in Genito-Urinary Surgery in the Medical Education Department. Because of the pendency of the disciplinary proceedings against him, he was not appointed. Later, after the culmination of the proceedings as per the final order Ext.P3, he was appointed by order dated 25.10.2000 and he joined duty. The persons, who were advised and appointed after 1999, to the post of Lecturer in Genito-Urinary Surgery, completed their period of probation and three of them were promoted to the post of Assistant Professor. The same is evident from Ext.P8 list published by the Departmental Promotion Committee (for short ‘DPC’). The present Writ Petition was filed by him on 29.6.2000, claiming appointment on the basis of advice of the PSC. During the pendency of the Writ Petition, as mentioned earlier, he was appointed on 25.10.2000. Later, the Writ Petition was amended, challenging Ext.P8 DPC list and also claiming promotion in preference to the persons included in the said list. The PSC filed a counter affidavit. The contesting party respondents also filed counter affidavits. The learned Single Judge, after hearing both sides, dismissed the Writ Petition. The learned Judge took the view that till the date of Ext.P3, the appellant was in service as Lecturer in Surgery. Only after removal from servi