Judgment :- 1. The controversy involved in this Original Petition relates to the application of R.28(bbb) of the Kerala State and Subordinate Services Rules (for short the rules) to a situation where seniors claim to be qualified on the day next after the last date of the test which they passed and assert that they were entitled to be promoted against vacancies which were created after that date but before the results were published. Petitioners submit that the effect of the fiction created by R.28(bbb) of the rules is that they being qualified seniors on those dates are entitled to be promoted against vacancies which arose subsequent to the notional date of acquisition of qualifications, in view of the provisions contained in R.28(bb) of the Rules. 2. A few facts are necessary to understand the rival contentions of parties. Petitioners were appointed as Assistants Grade - II in the service of the University of Calicut on 16-2-1976,15-10-1976 and 20-1-1977 respectively. Respondents 2 to 16 commenced service later in the same category; but they acquired test qualification necessary for promotion earlier than the petitioners. Petitioners acquired the said qualifications in the tests conducted in November-December, 1979, the last dates of the examinations in which they appeared being 30-11-1979, 3-12-1979 and 5-12-1979 respectively. The results of those tests were published in the Kerala Gazette dated 22-4-1980, but the Public Service Commission had published the results in its office and sent out communications as early as on 29-2-1980 (Ext.P11). Vacancies arose in the promotion category of Assistants Grade - I on 20-12-1979, 26-12-1979 and 14-1-1980. Respondents 2 to 5 were promoted against those vacancies under Ext. P1 order dated 8-2-1980. Five vacancies arose on 16-1-1980, 2 vacancies on 18-1-1980,1 each on 7-2-1980 and 8-2-1980 and 2 vacancies arose on 1-3-1980. Respondents 6 to 14 were appointed against those vacancies in Ext. P8 order dated 6-3-1980. In Ext. P9 order dated 5-4-1980, respondents 15 and 16 were temporarily promoted with effect from 1-3-1980 as Assistants Grade - I. In the meantime, petitioners submitted that they had become qualified under R.28(bbb) of the rules with retrospective effect prior to the date of occurrence of the vacancies and therefore they were entitled to be promoted in preference to their juniors. One such representation was Ext.P2. One such representation was Ext.P2. In Ext.P3 order dated 19-6-1980, petitioners were promoted with effect from 27-2-1980 (Petitioners 1 and 2) and 29-2-1980 (petitioner 3) as Assistants Grade - I. In Ext.P4 order dated 17-6-1980, the University regularised the temporary promotions of 27 Assistants Grade - I including respondents 2 to 16. In Ext. P5 order dated 21-2-1983, the second petitioner was informed that his submission -- Ext.P2 -- was engaging attention of the University. He persisted in his claim by sending Ext.P6 representation. Without disposing of those representations, the University issued Ext.P7 order dated 4-5-1983 promoting respondents 3, 4, 5 and 7 to the still higher posts of Senior Grade Assistants with effect from 21-4-1983. Petitioners challenge Exts.P4 and P7 orders and seek the issue of a writ of mandamus directing the first respondent to review the promotions of respondents 2 to 16 to the category of Assistants Grade - I applying the provisions of R.28(bbb) of the rules. 3. The first respondent has filed a counter affidavit. According to it, the petitioners, though seniors to respondents 2 to 16 in the category of Assistants Grade- II, could not claim the benefits of R.28 (bbb) of the rules for ranks above the latter. The vacancies in which the respondents were appointed arose from various dates from 20-12-1979 to 1-3-1980 viz., before the results of the petitioners were published in the gazette. It is the case of respondents that the rule which applies to vacancies which arose upto the date of publication of the results of the tests in which the petitioners became successful, is R.28(bb) of the rules. The contesting respondents maintain that even in respect of vacancies which were retrospectively created but with effect from dates falling during the period viz., day next after the test and its publication should also be filled up under R.28(bb) of the rules and the deeming provisions contained in R.28(bbb) of the rules will not apply to such vacancies. It is the interpaly of these two rules that is the subject matter of this Original Petition. 4. On the pleadings, it is evident that respondents 2 to 5 were promoted as Assistants Grade - I by Ext. P1 order dated 8-2-1980. The dates assigned to them were 20-12-1979, 22-12-1979, 26-12-1979 and 14-1-1980. It is the interpaly of these two rules that is the subject matter of this Original Petition. 4. On the pleadings, it is evident that respondents 2 to 5 were promoted as Assistants Grade - I by Ext. P1 order dated 8-2-1980. The dates assigned to them were 20-12-1979, 22-12-1979, 26-12-1979 and 14-1-1980. As far as these four respondents are concerned, the petitioners can have no claim, because they were qualified on the dates of occurrence of vacancies and also on the date of the order. Petitioners were not qualified on either of these two dates. Admittedly, they were occupying those four vacancies which arose prior to the declaration of the results of the petitioners. They were also test qualified on those dates. The vacancies came into being on 8-2-1980 prior to the publication of the results of the petitioners. Petitioners can have no relief against those four respondents. Similarly, respondents 15 and 16 were promoted as Assistant Grade - I under Ext. P9 order dated 5-4-1980 with effect from 1-3-1980. Admittedly, petitioners were seniors to those two respondents. They were also qualified even without the assistance of R.28(bbb) of the rules as on 1-3-1980, since their results were published and intimated to the University in Ext. P11 dated 29-2-1980. Petitioners who were qualified seniors were entitled to promotion. It is obvious that the petitioners are entitled to seniority, rank and all preferences in the matter of service benefits to respondents 15 and 16. 5. What remains to be decided whether Exts. P4 and P7 orders shall be sustained in so far as they affect the inter-se seniority of petitioners vis-a-vis respondents 6 to 14. To resolve this controversy, it is necessary to advert to the provisions of R.28(bb) and R.28(bbb) of the rules. They are as follows: "28. (bb) -- Promotion which depends upon the passing of any examination -- Promotion in a service of class which depends upon the passing of any examination (General or Departmental) shall ordinarily be made with reference to the conditions existing at the time of occurrence of the vacancies and not with reference to those at the time when the question of promotion is taken up. (bbb) Where a pass in any examination or test confers on a person the title to any right, benefit or concession, such title to the right, benefit or concession shall be deemed to have accrued, - (a) in the case of a person who has passed such examination or test before the 14th August, 1971 on the day following the last day of such examination or test in the subject or subjects: and (b) in the case of a person who has passed such examination or test on or after 14th August, 1974 on the day following the last day of the whole examination or test in which be has successfully completed the examination or test by passing one or most subjects. Explanation. Explanation. -- (1) The principles in this sub-rule shall apply for the drawal of increment and for promotion not involving change of duties against vacancies remaining unfilled for want of test qualified persons; (2) Where a person can choose between two examinations or tests or corresponding subjects or papers of two examinations or tests and where two examinations or tests conducted during the same period end on two different dates, the title to the right, benefit or concession conferred by the pass of the examination or test shall be deemed to have accrued on the day following the last date of the whole of the examination or test which ends on the latter date; (3) The expression "the last day of such examination or test in the subject or subjects" occurring in clause (a) of this sub-rule shall mean the last day on which according to the schedule of the examination or test first published by the Kerala Public Service Commission, such examination or test in the subject or subjects would have been conducted if the examination or test in any of the subjects had not been postponed to a later date; (4) The expression "the last day of the whole examination or test occurring in clause (b) of this sub-rule shall mean the day on which, according to the schedule of the examination or test first published by the Kerala Public Service Commission, the examination or test in the last of the subjects comprising the whole examination or test would have been conducted, if the examination or test in any of such subjects had not been postponed to a later date." Both sides rely on Explanation.) to R.28(bbb) of the Rules. A person can be deemed to have successfully completed the examinations or tests by passing one or more subjects on the day following the last day of the whole examination. According to the explanation, that benefit will be available for promotion not involving change of duties only against vacancies remaining unfilled for want of test qualified persons. Petitioners submit that the vacancies in which respondents 6 to 15 were appointed arose only consequent on Ext. P8 order dated 6-3-1980 before which date the petitioners had become qualified. According to the explanation, that benefit will be available for promotion not involving change of duties only against vacancies remaining unfilled for want of test qualified persons. Petitioners submit that the vacancies in which respondents 6 to 15 were appointed arose only consequent on Ext. P8 order dated 6-3-1980 before which date the petitioners had become qualified. Vacancies which were deemed to have arisen on 14-1-1980 (5 vacancies), 18-1-1980 (2 vacancies), 7-2-1981 and 8-2-1981 were not vacancies which were available before the date of publication of the results of the examinations in which the petitioners passed. Petitioners submit that since they had become qualified as on 6-12-1979 and were seniors, they were entitled to be preferred for promotion. Respondents on the other hand urge that if there were no vacancies which remained unfilled for want of test qualified persons between the day after the last date of the examination and the date of publication of the results, R.28(bbb) of the rules will not operate in favour of the petitioners. 6. It appears to me to be evident that R.28(bbb) of the rules will operate only to promotions (1) not involving change of duties; (2) against vacancies remaining unfilled; and, (3) for want of test qualified persons. If any one of these three conditions is absent, the date of publication of the results alone will govern the. question whether a person is qualified for promotion or not. The retrospective, deeming provision, that persons who pass the test will be deemed to be qualified for promotion from a date prior to the date of publication of the result operates only if all the three conditions are cumulatively present. There is no dispute in this case that the promotion of Assistants Grade - II to Assistants Grade - I did not involve a change of duties. The first condition was thus satisfied. As a matter of fact, there was no vacancy which remained unfilled till the date on which the results were published. The second condition was not, therefore, satisfied. In any case, the vacancies did not remain unfilled for want of test qualified candidates, because respondents 6 to 14 were test qualified candidates and if vacancies did really arise between 16-1-1980 and 8-2-1980, those vacancies would have been filled up by promoting those qualified candidates. The third condition also was not, therefore, satisfied. 7. In any case, the vacancies did not remain unfilled for want of test qualified candidates, because respondents 6 to 14 were test qualified candidates and if vacancies did really arise between 16-1-1980 and 8-2-1980, those vacancies would have been filled up by promoting those qualified candidates. The third condition also was not, therefore, satisfied. 7. The question which remains is as to what will be the position when vacancies are created retrospectively from far later dates in between the last date of the test and the publication of the results of the same in which the employee became qualified. It is obvious that the conditions as they existed on the date of publication of the results alone are relevant for determining the applicability of R.28(bbb) of the rules. No subsequent event can be taken into account even if such subsequent event has the effect of creating a vacancy prior to the date of publication of the results. Had the vacancies been created in time, they would have been filled up by promoting respondents 6 to 14 against those vacancies. The adventitious circumstance that the vacancies were created only by a subsequent order could not disentitle such qualified persons for promotion which they would have got had the orders been passed in time. Administrative delay for which the qualified personnel were not responsible is not expected to be a wind fall in favour of persons who could not acquire the prescribed test qualifications in time or ahead of their juniors. I am therefore of the opinion that the petitioners are not entitled to the benefit of R.28(bbb) of the rules against vacancies which were created retrospectively from a date anterior to the publication of the results. 8. Yet another submission which was urged on behalf of the petitioners is that as on 6-3-1980 when vacancies were created retrospectively under Ext. P8 order, the petitioners were the qualified seniors and ought normally to have been promoted. R.28(bb) of the rules which I have extracted above is a clear answer in the negative to this contention. On the date of occurrence of the vacancy though retrospectively created, respondents 6 to 14 were test qualified and the seniors were not. P8 order, the petitioners were the qualified seniors and ought normally to have been promoted. R.28(bb) of the rules which I have extracted above is a clear answer in the negative to this contention. On the date of occurrence of the vacancy though retrospectively created, respondents 6 to 14 were test qualified and the seniors were not. According to the conditions existing at the time of occurrence of those vacancies, they were qualified; whereas the petitioners could be considered as qualified only at the time when the question of promotion was taken up. R.28(bb) of the rules is absolutely clear that the conditions on the former date alone should be taken into account and not as on the latter date. Even apart from the provisions of the above two rules, this court had held in two Full Bench decisions -- James Thomas v. Chief Justice, 1977 KLT 622, and Varghese v. State of Kerala, 1981 KLT 458 -- that the date relevant must be the date of occurrence of the vacancy. If the petitioners are not entitled to the benefits of R.28(bbb) of the rules because the second and third conditions mentioned in the explanation to that rule were absent in the instant case, they were not qualified on the date of occurrence of the vacancy, whereas respondents 6 to 14 were. 9. We have seen that respondents 15 and 16 were promoted as Assistants Grade - I only under Ext. P9 order dated 5-4-1980 and that too with effect from 1-3-1980. We have also seen that as on 1-3-1980 petitioners were qualified seniors. Those respondents could not have claimed any preference over qualified seniors. To that extent, Ext. P9 promotion of respondents 15 and 16 and the regularisation of such promotion to the above extent under Ext. P4 order cannot be sustained. 10. The relief which the petitioners seek against Ext. P4 order of regularisation cannot be granted in so far as it relates to respondents 2 to 14. Nor is it possible to grant any relief against the further promotion of respondents 3 to 5 and 7 as Senior Grade Assistants. In the result, the Original Petition is allowed to the extent of declaring the petitioners to be entitled to preference to respondents 15 and 16 for promotion as Assistants Grade - I and for further promotions. Nor is it possible to grant any relief against the further promotion of respondents 3 to 5 and 7 as Senior Grade Assistants. In the result, the Original Petition is allowed to the extent of declaring the petitioners to be entitled to preference to respondents 15 and 16 for promotion as Assistants Grade - I and for further promotions. It is dismissed in so far as it relates to the claims of the petitioners for preference to respondents 2 to 14. The first respondent shall assign seniority to the petitioners over respondents 15 and 16 in the category of Assistants Grade - I and in further promotion posts subject to due satisfaction of the provisions of the rules. There will be no order as to costs.