JUDGMENT Govindan Nair, C. J 1. The question arising for consideration in this petition relates to the inter se seniority of the petitioner and respondents 3 to 6, The question is about their inter se seniority in the grade of upper division clerks in the Directorate of National Employment Service, They are now all working as Head Clerks and promotions to that grade have been made apparently on the basis of the seniority list of upper division clerks settled by Ext. P5, In this list the petitioner is shown as 12 and respondents 3 to 6 respectively as 8, 9, 10 and 11, There was an earlier list Ext. P3 dated 7th August 1968 in which the petitioner was ranked above the third and 5th respondents, holding rank No. 25 while the third and fifth respondents were 28 and 27 respectively, The 4th and 6th respondents were not shown in that list. When a provisional seniority list of upper division clerks as on 1st April 1972 was published (Ext. P4 dated 7th September 1972) the petitioner was shown as senior to respondents 3 to 6. 2. The petitioner was promoted as an upper division clerk on 2nd December 1963. Respondents 3, 5 and 6 were promoted later to that grade on 28th August 1964, 10th August 1964 and 1st July 1968. The 4th respondent was a lower division typist and he was appointed by transfer on 23rd March 1964. It is admitted that the petitioner was junior to respondents 3, 5 and 6 in the category of lower division clerks. The question is whether by virtue of his earlier promotion on 2nd December 1963 he was entitled to be ranked above respondents 3 to 6 who admittedly became upper division clerks only subsequently. On their behalf it was claimed that R.13A of the Kerala State and Subordinate Services Rules -- As we understand the contention, sub-rule (3) of R.13A would enable the respondents, all of them, including the 4th respondent, to claim seniority above the petitioner. We shall extract sub-r.(3) of R.13A of the Kerala State and Subordinate Services Rules, 1958. "13A(3). On their behalf it was claimed that R.13A of the Kerala State and Subordinate Services Rules -- As we understand the contention, sub-rule (3) of R.13A would enable the respondents, all of them, including the 4th respondent, to claim seniority above the petitioner. We shall extract sub-r.(3) of R.13A of the Kerala State and Subordinate Services Rules, 1958. "13A(3). If it is, proposed to introduce any new test or tests of a higher standard the passing of which may be a condition precedent for benefits like increments, promotion, completion of probation etc., such test or tests shall be introduced only subject to the following conditions, namely:- (i) additional time, which shall be double that of the ordinarily permissible time for passing the test shall be allowed to an allotted employee, in cases where tests of a higher standard are prescribed or where no tests are prescribed in the State; (ii) notwithstanding anything contained in sub-r.(b) of R.37B Part I, K.S.R. and R.21 of these rules penalties for not passing the test, such as denial of benefits like increments, promotion, etc., shall be held in abeyance till the expiry of the time given for passing the prescribed test under clause (i) and the officer shall continue to be on probation till the expiry of the above period, if he has not passed the prescribed test by that time. If a member of the service promoted under this clause does not pass the prescribed test within the time given under clause (i) he shall be reverted to the class, category, grade or post from which he was promoted and shall not again be entitled for promotion under this clause; (iii) Allotted employees of and above the age of 45 years shall not be required to pass the tests and they shall be eligible for all benefits as if they had passed the tests. This sub-rule shall be deemed to have come into force with effect from 16th March 1966." No arguments were advanced before us that what was contended to be new tests introduced by Ext. P8 dated 14th January 1963 and / or by Ext. R2 dated 23rd October 1963 was not " now tests of a higher standard" so as to attract S.13A(3) of the Rules. The arguments only turned on the question whether Ext. P8 order prescribed new tests or not. According to the petitioner Ext. P8 dated 14th January 1963 and / or by Ext. R2 dated 23rd October 1963 was not " now tests of a higher standard" so as to attract S.13A(3) of the Rules. The arguments only turned on the question whether Ext. P8 order prescribed new tests or not. According to the petitioner Ext. P8 did not prescribe new tests but only Ext. R2 did and those new tests came into operation only with effect from 1st January 1964 as stated in Ext. R2. On the other hand the respondents would have it that Ext. P8 itself prescribed new tests and these tests came into effect from 14th January 1963. the date of Ext. P8. We may add that it is admitted that if new tests came into operation only on 1st January 1964 as envisaged by Ext. R2, the petition has to be allowed. 3. We are concerned in this case only with one test, Account Test (Lower), and not with the other tests which the petitioner and the respondents may have had to pass for getting promotion. Regarding this test what is stated in Ext, P8 reads as follows:- " 1. Account Test (L) -- Lower Division Clerks in all office except the Kerala High Court but including the Office of the Public Service Commission and the Civil and Criminal Courts subordinate to the High Court and Assistant Grade II in the Secretariat (excluding Legal Assistants Grade II in the Law Department of the Secretariat) should be required as at present to pass the Account Test (L) for confirmation in the lower division or Grade II and for promotion to the upper division or Grade I. " 4. Our attention was drawn by counsel on behalf of the respondents to Ext. S 2 G.O. (P) No. 628, dated 6th October 1965 in which the order Ext. P8 has been referred to and wherein a statement has been made with reference to Ext. P8 that "in the G.O. 1st read above, the Government prescribed unified tests in Office Procedure and Account Test (Lower) for the ministerial staff of the different offices of the State Government". On this basis the order concluded in paragraph 3 by granting to the concerned members of the various services the benefit of the provision in R.13A(3) of the Kerala State and Subordinate Services Rules. On this basis the order concluded in paragraph 3 by granting to the concerned members of the various services the benefit of the provision in R.13A(3) of the Kerala State and Subordinate Services Rules. In that paragraph it is stated that "for the persons allotted from Madras as well as from Travancore - Cochin the tests prescribed in G.O. (P) 22, Public (Services), dated 14th January 1963 will be made compulsory only from the 14th January, 1967. The reference is of course to Ext. P8. It is evident from the statement that the Government have proceeded on the basis that Ext. P8 has introduced new tests of a higher standard. Our attention was also drawn to the letter dated 30th December, 1969 written by the Director of Employment and Training apparently in his capacity also as Ex Officio Deputy Secretary to Government, to the Director of Employment (the other post he himself was holding) in which it is stated that "unified Account Test introduced as per G.O. (P) 22/PD., dated 14th January 1963 has been recognised as a new test and for those in service prior to 14th January 1963, temporary exemption will be available as laid down in Circular No. 4943/SD3/68/PD., dated 9th February 1968. I am to add that Sri Anandan will be eligible for temporary exemption for a period of five years from 14th January 1963. I am to request you to review the case of Sri Anandan in the light of the above position." In this communication the Deputy Secretary has proceeded on the basis that the order Ext. P8 has introduced new tests. Apart from relying on this exhibit counsel for the respondent also relied on the judgment of this court in O.P. 2096 of 1973 in which the view has been taken by a learned Judge of this court that Ext. P8 has introduced new tests. Justice Eradi who heard this petition felt that the decision in O.P. 2096 of 1973 required reexamination by a Division Bench and accordingly passed an elaborate order of reference dated 10th October 1975. And it is thus that the case has come up before us. 5. On behalf of the petitioner it was contended that no new tests were introduced by Ext. P8 order. It was emphasised that it is not even mentioned in Ext. P8 that a new test is being introduced. And it is thus that the case has come up before us. 5. On behalf of the petitioner it was contended that no new tests were introduced by Ext. P8 order. It was emphasised that it is not even mentioned in Ext. P8 that a new test is being introduced. All that was stated in the relevant paragraph which we have extracted above was about the unified tests in all offices other than those exempted by the order itself. To supplement these submissions our attention was drawn to an order of the 1st June 1962 (G.O. MS. No. 313) by which it was directed that the Kerala Service Rules will replace the T.S.R. and C.S.R. and the Madras Fundamental Rules. It has to be mentioned here that the service rules comprised one of the three papers on which the employee of the State had to be examined for the purpose of taking the Account Test (Lower). The substitution of the K.S.R. by this order dated 1st June 1962 was apparently to come into effect forthwith and the order itself states that it need not wait for the issue of other unified codes which mainly pertained to account matters. It is stated in Ext. R2 that "with effect from July 1, 1963 Government have issued the following unified codes for regulating me procedure followed in the several offices am treasuries in the State in regard to financial and account transactions. "1. Kerala Financial Code (2 Volumes) 2. Kerala Account Code (2 Volumes) 3. Kerala Treasury Code (2 Volumes) 4. Kerala Public Works Account Code (with book of forms)" By an order dated 24th October 1962 (G.O. MS. No. 568) the Audit Code, one of the papers included in the syllabi of the Account Test (Lower) was deleted from the syllabi prescribed for the Account Tests conducted by the State Public Service Commission. The order dated 24th October 1962 deleting the papers relating to Audit Code, it was directed by order dated 2nd March 1963, will take effect from 1st April 1963. The position on 14th January 1963 therefore appears to be that the Account Test (Lower) was to apply to every officers excepting those exempted by the order Ext. P8. The order dated 24th October 1962 deleting the papers relating to Audit Code, it was directed by order dated 2nd March 1963, will take effect from 1st April 1963. The position on 14th January 1963 therefore appears to be that the Account Test (Lower) was to apply to every officers excepting those exempted by the order Ext. P8. It was contended by counsel for the petitioners that the Account Test (Lower) was not applicable to all persons and what has been done was only to make the Account Test (Lower) applicable to all the staff. It was further submitted that there has been no change in the syllabi for the exemption for the Account Test subsequent to 14th January 1963 (excepting dropping the Audit Code paper with effect from 1st April 1963) and that the same examination continued to be held even after 1st April 1963, till 1st January 1964. Reference was then made to the order Ext. R2 and the statements therein that "at present the Kerala Public Service Commission is conducting different Account Tests for officers of the erstwhile T.C. State and officers allotted from Madras". At the beginning of the order there is a reference to the letter from the Secretary, Public Service Commission, wherein he had stated that "two sets of similar tests should not be allowed to exist indefinitely and suggested that steps may be taken to prescribe common Account Tests for both the T. C. personnel and officers allotted from Madras." And it was emphasised that the preamble to the order clearly established the case of the petitioner that there has been no new tests introduced by the order Ext. P8, dated 14th January 1963. Reference was also made to the details of the Account Tests at present conducted by the Public Service Commission stated in the order itself and to the operative portion of the order wherein it was stated that "the Account Tests at present conducted by the Public Service Commission for the benefit of officers of the former T.C. State and officers allotted from Madras, mentioned in paragraph 2 above will be abolished". Reference was also made to the tests that will have to be conducted after the order dated 23rd October 1963. Reference was also made to the tests that will have to be conducted after the order dated 23rd October 1963. In the place of the tests abolished above for the benefit of both the T.C. personnel and officers allotted from Madras and also for officers who were recruited to Public Services after the formation of Kerala State. Our attention was also invited to paragraph 4 of Ext. R2 wherein it was stated that the candidates who have passed in one more papers of the Travancore - Cochin or Madras Tests will be deemed to have (passed in the corresponding paper or papers of the new tests and also to paragraph 7 wherein it was categorically stated that "the above orders will come into force with effect from 1st January 1964". The argument of counsel appearing for the petitioner and Sri Sivaraman Nair who appeared for an intervener supporting the petitioner, was that if one is to visualise a new test he must look at the order dated 23rd October 1963 and that alone and not at Ext. P8, dated 14th January 1963. The categorical statement in the order dated, 23rd October 1963 and the changes effected in the syllabi which are detailed in the order itself as well as the introduction of a new paper, paper No. 4 mentioned in paragraph 3 relating to Kerala Treasury Code, Volumes 1 and II and the Kerala Account Code Volume II, it was submitted, may amount to the introduction of a new test and that it may be assumed in the absence of contest that the test so introduced was of a higher standard for the purpose of this case, to attract benefits of sub-r.(3) of R.13A of the above Rules. We see great force in this submission. It appears to us that all that has been done by the order, dated 14th January 1963 was to extend the Account Test (Lower) as it used to be conducted in the State before the passing of the order Ext. P8 to all the officers in the State excepting those exempted by the orders itself. We discern from the order only a unification in that regard. And consequently in offices where an Account Test was not formerly (i.e. before Ext. P8 order) required, a "new test" would have come into existence. P8 to all the officers in the State excepting those exempted by the orders itself. We discern from the order only a unification in that regard. And consequently in offices where an Account Test was not formerly (i.e. before Ext. P8 order) required, a "new test" would have come into existence. But admittedly, the Account test was necessary for promotion as upper division clerk in the Directorate of National Employment Service. The statement in Ext. R2 order clearly indicates that the practice that was obtaining at the time the order Ext. P8, was passed continued even after the date of the order Ext. P8 excepting in offices where no account test was necessary before Ext. P8. The petitioner himself sat for the old test -- what we mean by the old test is the test that used to be conducted in the State at the time the order Ext. P8, was passed in June, 1963, well after the order Ext. P8 dated 14th January 1963. The statement in Ext. R2 are categorical that those tests that were thus conducted will be abolished and the abolition by virtue of the provision in paragraph 7 of Ext. R2 which we have extracted above was to take effect only from 1st January 1964. The introduction of the new test was also to take effect only from the date. Before the 'new test' envisaged, by Ext. R2 was introduced the test books and the syllabi had to be settled. The new codes in relation to the Finance and Accounts and the Treasury and the Public Works Account came into existence only from the 1st July 1963, long after the date of the order Ext. P8. The Treasury Code was prescribed as a paper only by the order Ext. R2 and it was effected only from 1st January 1964. In the light of these clear materials it is difficult to rely on the statements contained in the order of the Government dated 6th October, 1965 and the letter Ext. P7 to which we have already adverted to. The benefit under sub-r.(3) of R.13A will thus be available only from 1st January 1964, the date mentioned in Ext. R2 which clearly introduced new tests. P7 to which we have already adverted to. The benefit under sub-r.(3) of R.13A will thus be available only from 1st January 1964, the date mentioned in Ext. R2 which clearly introduced new tests. If a vacancy had occurred before that date, and if a person who was qualified on that day though junior to others who did not have the necessary test qualification, was promoted, that promotion cannot be affected by an exemption which commenced on a date subsequent to it. There is no case that the petitioner was not qualified on 2nd December 1963. He was promoted on that date and respondents 3, 5 and 6 though seniors to the petitioner were not qualified on that day and were not entitled to be promoted on that day. The fact that they might get time to pass the tests introduced by Ext. R2 from 1st January 1964 cannot in any way detrimentally effect the promotion given to the petitioner on 2nd December 1963. As far as the 4th respondent is concerned his appointment by transfer to the category of upper division clerk was only on 23rd March 1964 and that appointment too cannot affect the seniority of the petitioner who was promoted regularly and correctly on 2nd December 1963. 6. We are not concerned in this case about the inter se seniority of respondents 3 to 6 nor about the details regarding the papers in the test taken by the respondents, and we express no opinion regarding these matters, In the judgment in O.P. No. 2096 of 1973 it appears to us that it was assumed that the new tests evidenced by the syllabi detailed in Ext, R2 came into effect on 14th January 1963. There was no discussion or consideration of the question whether by Ext. P8 order any new test was introduced from that day (14th January 1963) and whether any new syllabi came into existence on that day, apparently because no arguments were advanced before the learned judge on those aspects and the judgement cannot therefore be taken to lay down that new tests were actually introduced by the order Ext. P8 though no doubt the judgment proceeds on the assumption that new tests actually came into effect from 14th January 1963. With great respect we are unable to agree with the assumption made in the judgment. P8 though no doubt the judgment proceeds on the assumption that new tests actually came into effect from 14th January 1963. With great respect we are unable to agree with the assumption made in the judgment. We hold that the "new tests'', if those introduced by Ext. R2 are new tests, came into effect and operation only from 1st January 1964, as stated in the order Ext. R2. 7. In the light of the above, we allow this petition set aside seniority list Ext. P5 and direct that the petitioner be ranked above the respondents 3 to 6 in the category of upper division clerks giving him the date of commencement of his service in that grade from 2nd December 1963 the date on which he was appointed as an upper division clerk. The question of his seniority in the category of head clerks will also be determined on the basis of the seniority of the petitioner in the grade of upper division clerks settled by this judgment. 8. We direct the parties to bear their respective costs.