The period for passing departmental tests under Kerala State and Subordinate Service Rules is calculated from the date of vacancy, not the order of promotion.

JUDGMENT

Muralee Krishna, J.

The applicant in O.A.(EKM)No.448 of 2017 before the Kerala Administrative Tribunal, Additional Bench at Ernakulam, (the ‘Tribunal’ for short) filed this original petition invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India , challenging the order dated 28.03.2017 passed by the Tribunal in that original application.

2. Going by the averments in the original application, the petitioner is working as L.D.C. in the Medical College Hospital, Vandanam, Alleppey, under the Medical Education Department. He was originally appointed as L.D.C on 29.01.2005 and entered service as on 29.03.2005 in the Health Service, and thereafter, in connection with the Abolition of the dual control system, the petitioner opted Medical Education Department. His probation was declared with effect from 08.04.2007. The petitioner belongs to the Scheduled Caste. By invoking the power under Rule 13A(1)(a) of Kerala State and Subordinate Service Rules (‘KS&SSR’ for short), the petitioner was promoted as U.D.C with effect from 21.02.2011 as per Annexure A1 order dated 29.06.2013. But the 3^rd respondent reverted the petitioner before the expiry of the 3 years as per Annexure-A2 order dated 06.07.2015. The persons promoted as per Rule 13A(1)(a) of KS&SSR have to pass the department test within 3 years from the date of such appointment. This 3-year period is guaranteed to those persons who are appointed under Rule 13A(1)(a) of KS&SSR to attend and pass the department test after the promotion. Since the 3^rd respondent passed the promotion order belatedly, only on 29.02.2013 with retrospective effect from 21.02.2011, the petitioner lost as much time from 21.02.2011 to 29.06.2013. The petitioner pleaded that for the purpose of enabling him to attend and pass the department test after he has been promoted under Rule 13A(1)(a) of KS&SSR, the specific and statutory period of 3 years shall be calculated from the date of the order of promotion i.e. from 29.06.2013 and not from the retrospective date of 21.02.2011. But the 1^st respondent rejected the appeal and issued Annexure-A3 order dated 31.12.2016, confirming reversion on the basis of the ruling in Annexure-A4 judgment of this Court dated 04.06.2014 in O.P(KAT) No.3590 of 2013. Moreover, the petitioner passed the department test within 3 years from 29.06.2013, as evidenced by Annexure A5 certificate dated 13.08.2015 issued by the Kerala Public Service Commission. But yet, the 1^st respondent reverted the petitioner as per Annexure A3 order stating that the 3 years period is to be calculated from 21.02.2011, the date on which the vacancy arose, of which the petitioner got knowledge only on 29.06.2013. The petitioner pleaded that the time lost in the past cannot be taken back, and the petitioner is entitled to 3 years from 29.06.2013. Hence, the petitioner filed the original application invoking the jurisdiction of the Tribunal under Section 19 of the Administrative Tribunals Act, 1985 , seeking the following reliefs:

“(i) To call for the records leading to Annexure A3 and set aside the same.

(ii) Declare that the 3 year period of time for passing the department test after the promotion under Rule 13A(1)(a) of KS & SSR is to be reckoned from the date of order of promotion and if the order of promotion is belated, such period of delay shall not be prejudicial to the applicant in the matter of availing actual and specific 3 year period for attending the department test.

(iii) Declare that the petitioner is entitled to get actual, clear and specific period of 3 year after the promotion order under Rule 13A (1)(a) of KS & SSR and any order curtailing