IMPORTANT POINTS
• As against the term 'experience', what is laid down in Ext.P5 Rules, is '3 years regular service'. For the purpose of 'regular service', the employer can treat any period of LWA or notional service as regular service in accordance with the Rules/guidelines applicable to the establishment. Therefore, what is the actual requirement, whether it is 3 years experience or 3 years regular service, has to be determined from the Scheme of the Rules.
• Circular Nos.38/2002/Fin and 72/2005/Fin of the Government of Kerala, Financial (Rules) Department, which relate to counting of service benefits for the period of LWA on medical certificate under Rules 88 and 91 of Part I KSR, the pleadings in the case are not sufficient to hold that KSR and the Circulars on medical leave issued by Government of Kerala are made applicable to the 1st respondent -IHRD. In the circumstances, the claim of the petitioner for appointment as Computer Programmer, indeed requires reconsideration and re-examination at the hands of respondents 1 and 2.

The petitioner who is an Office Assistant working in the Institute of Human Resources Development ('the IHRD', for short) seeks to set aside Exts.P9 and P10 to the extent experience of the petitioner is shown as less than 3 years and to command respondents 1 and 2 to appoint the petitioner to the post of Computer Programmer.

2. The petitioner submits that he and respondents 3 and 4 were appointed as Junior Office Assistants by Ext.P1 order dated 14.02.2006 and were notionally appointed to the promotion post of Office Assistants with effect from 13.03.2007, 01.03.2007 and 18.02.2007 respectively. In Ext.P1 appointment order dated 14.02.2006, in Ext.P2 order dated 10.07.2007 declaring their probation, as well as in Ext.P3 order dated 28.02.2008 appointing them as Office Assistants, the petitioner is shown as senior to respondents 3 and 4. On 14.06.2016, the 2nd respondent issued Ext.P6 notification inviting applications for appointment to the post of Computer Programmer for being filled up by internal selection and one of the feeder categories was Office Assistant.

3. The petitioner satisfied the educational qualifications, contends the petitioner. As regards the experience, the petitioner entered service on 01.03.2006 and was appointed as Office Attendant on 13.03.2007. He was on Leave Without Allowance (LWA) from 20.06.2007 to 31.07.2013. Even after deducting the period of LWA, the petitioner has 3 years 1 month and 12 days regular service. The requisite experience is only 3 years. As per Ext.P8, the 2nd respondent issued Circular dated 24.10.2017 which is a provisional seniority list for appointment as Computer Programmer. In the said Ext.P8 list, the petitioner was placed at Serial No.1 whereas respondents 3 and 4 were at Serial Nos.2 and 3 respectively. As the petitioner had no grievance as to his seniority position, he did not file objection to Ext.P8. However, when Ext.P9 Final Seniority List was published on 31.01.2018, though petitioner's seniority position was retained at Serial No.1, his experience period was shown as 2 years 11 months and 16 days. This was done without hearing the petitioner. Ext.P9 Circular was published on 31.01.2018. Before the petitioner could submit his objections to Ext.P9, on 02.02.2018 respondents 1 and 2 in undue haste, promoted respondents 3 and 4 as Computer Programmers. The petitioner's representation dated 03.02.2018 against Ext.P9 remains unanswered.

4. Respondents 1 and 2 filed counter affidavit opposing the writ petition. As per the approved IHRD Service Special Rules, 2014, Notification dated 14.06.2016 was issued inviting application for appointment of Computer Programmers under 20% internal reservation scheme. As per Rules, an Office Assistant should have 3 years regular service under IHRD for appointment as Computer Programmer. In Ext.R1(a) application dated 14.06.2016 submitted by the petitioner, four years' experience was claimed. The petitioner had availed LWA for 20.06.2007 to 31.07.2013. On calculation of number of days, it was found that the petitioner has not completed 3 years of regular service as Office Assistant as on the date of notification. Hence, the petitioner was found not eligible for promotion.

5. The 3rd respondent in his counter affidavit contended that even as per the application submitted by the petitioner, he had only 2 years 11 months and 16 days service as on 14.06.2016, the date of notification. It is not sufficient to satisfy the service requirements as on the last date of submission of application, since Ext.P6 notification in explicit terms states that qualifications and experience should be satisfied as on the date of notification. Furthermore, the petitioner in his application for the post, has excluded his LWA period from 02.04.2007 to 07.06.2007 as service. When the petitioner himself has excluded the period of LWA in application, he cann