The main legal point established in the judgment is that the claim for promotion should be considered with reference to the date of occurrence of the vacancy and not with reference to the date when the question of promotion is taken up, as per the interpretation of Rule 28(b)(i)(10), Rule 28(b)(iA), and Rule 28(bb) of the Kerala State and Subordinate Services Rules.

JUDGMENT

P.R Ramachandra Menon, J.

The challenge in this original petition is against Ext.P3 order passed by the Tribunal whereby, the relief sought for in the O.A No. 1452 of 2013 has been granted ordering promotion retrospectively in terms of an inter-party judgment vide Annexure-A9. The ground for the challenge raised by the respondents in the O.A is that the verdict passed by the Tribunal is not in conformity with the relevant provisions of law, which requires interference by this Court.

2. Heard Sri. T. Rajasekharan Nair, learned Senior Government Pleader appearing for the petitioners as well as Sri. P. Nandakumar, learned counsel appearing on behalf of the respondent/applicant in the O.A

3. The sequence of events reveals that, the respondent herein was working as HSST (Junior), who completed his probation of two years within a continuous period of three years and was eligible to be promoted to the post of HSST (Senior). As a matter of fact, the DPC considered the credentials of the respondent on 22.12.2009 and based on the proceedings of the DPC, he was promoted as HSST (Senior) with effect from 29.06.2010 A claim was mooted by the respondent, that the vacancy had arisen way back in the year 2008 and hence he was entitled to be promoted with effect from retrospective date. It was with reference to the said claim, that the respondent approached the Tribunal by filing the O.A, which has been accepted by the Tribunal, allegedly without any regard to the rule position and the binding precedents and hence the challenge.

4. Learned Government Pleader submits that the post of HSST (Junior) is in the ‘Subordinate service’ whereas the post of HSST (Senior) is in the ‘State service’ and there is considerable change in the nature of duties and such other relevant aspects. It was not correct for the respondent/applicant, to have claimed retrospective promotion with reference to the date of occurrence of the vacancy, as the law has been laid down by the Apex Court in crystal-clear terms as per the decision rendered in Nirmal Chandra Sinha v. Union of India (2008) 14 SCC 29, holding it in favour of the department.

5. According to the learned counsel for the respondent, there is absolutely no merit or basis for placing reliance on the verdict passed by the Apex Court as referred to above, since the case in hand is governed by separate rules framed by the State, which support the claim of the respondent. It is stated that this is the second round of litigation. The post of HSST (Senior) has to be filled up initially by way of ‘by-transfer’ method and in the absence of any qualified hands in that segment, by way of ‘direct recruitment’. A specific ratio is also prescribed in this regard as 1:3 as evident from Rule 6 of the Special Rules. The respondent had approached this Court earlier by filing W.P (C) No. 27574 of 2007 as the probation of the respondent was not declared on time. According to him, it was liable to be declared, he having completed the probation satisfactorily with effect from 31.08.2007, (having been appointed to the post of HSST (Junior) on 31.08.2005). By virtue of the delay on the part of the departmental authorities, much loss and prejudice was being resulted to the respondent, as direct recruits were being given a march over the persons like the respondent herein. It was in the said circumstance, that several writ petitions came to be filed before this Court including W.P (C) No. 27574 of 2007 wherein the respondent herein is shown as the first petitioner. An interim order was passed by this Court directing that the vacancy shall not be filled up in the meanwhile by direct recruitment. The said writ petitions were disposed of as per Annexure-A2 judgment dated 12.08.2008, giving appropriate directions as contained in paragraph No. 8, which is reproduced below:

8. In the facts and circumstances of the case and taking into account the submissions made by the learned counsel for the petitioners, the learned Government Pleader