Temporary promotions in public interest can be made despite restrictions from governmental circulars, as these cannot override statutory rules governing civil service promotions.

JUDGMENT :

N. NAGARESH, J.

1. The 1^st petitioner is an organisation of staff members of the Civil Judicial Department in Kerala. Petitioners 2 to 16 are working in non-gazetted posts in the Civil Judicial Department in various Districts. The petitioners seeks to declare that Rule 8 of the Kerala Judicial Ministerial Subordinate Service Rules will override Exts.P6 and P7. The petitioners seek to allow temporary promotions to the petitioners under the Rules, 1975.

2. The petitioners state that though the District Judges are the appointing authorities of petitioners 11 to 16, they cannot promote staff members when vacancies arise in certain posts in view of Ext.P1 Office Memorandum dated 23.11.2022. Ext.P1 states that as per Rule 28(a) Part II of KS&SSR, declaration of probation is essential for grant of promotion. If probation is not declared, only temporary promotions can be granted under Rule 31 Part II KS&SSR, if promotion involves change of duty and if in the exigencies of public service.

3. The High Court issued Ext.P2 OM dated 02.03.2023 clarifying that as per Rule 28(a), declaration of probation is a pre-requisite for promotion. Ext.P2 stated that though as per Rule 28(a), declaration of probation is a pre- requisite for promotion and though as per Rule 31, temporary promotions can be granted under exigencies, there is a ban imposed by the Government in grant of temporary promotion. Ext.P2 stipulated that if there is any exigency to grant temporary promotion, the head of the Department should take the matter with the Government for approval.

4. By Ext.P3 OM dated 10.04.2023, the High Court directed the District Judges to cancel orders granting temporary promotions filling the vacancies consequent to the promotions granted under intimation to the High Court. Ext.P3 categorically states that vacancies consequent to temporary promotion of Bench Clerk Grade-I and Junior Superintendent shall not be filled up for the time being.

5. The High Court again issued Ext.P4 OM directing the District Judges that the post of Bench Clerk Grade-I and Junior Superintendent kept unfilled for want of approved probationers should be filled up under Rule 31(a) Part II KS&SSR under extreme exigencies with the concurrence of the High Court until Government decision comes in the matter.

6. The petitioners state that in view of Exts.P1 to P4, the District Judges are unable to promote eligible employees to the posts which are lying vacant since approved probationers are not available. In Ernakulam District, there are eight posts of Bench Clerk Grade-I lying vacant. Further, five posts of Central Nazir are lying vacant.

7. The petitioners state that Rule 28(a) Part II KS&SSR is not a bar to give promotion from the post of Bench Clerk Grade-III, Bench Clerk Grade-II, Central Nazir and Bench Clerk Grade-I. Temporary promotions under Rule 31 can be effected where it is necessary in public interest owing to an emergency. However, Ext.P1 clarifies that the Government, as per the Circular cited 6^th therein, has imposed restriction in granting temporary promotion. The petitioners would submit that the Government Circulars dated 09.09.1997 and 15.09.2008 dealt with promotions to the selection categories and posts in which promotions are done by Heads of the Department.

8. The High Court of Kerala and the Registrar (District Judiciary), who are respondents 4 and 5 respectively, have filed counter affidavit. Respondents 4 and 5 submitted that whether to make temporary promotions or not is within the discretion of the appointing authority. Temporary promotions can be made