Judgment :- Petitioners in these Original Petitions challenge the seniority list of Upper Division Clerks published in the Kerala Gazette dated 7.8.90. It is their case that party respondents; who were juniors in the cadre of Lower Division Clerks, have been wrongly assigned seniority over them in the cadre of Upper Division Clerks. Hence these Original petitions. 2. Since identical issues arise for consideration in these Original Petitions, I consider it advantageous to dispose of them by a common judgment. 3. In the general pay revision order issued in G.O.(P) 290/69/Fin. dated 9.6.1969, the ratio between Upper Division Clerks and Lower division Clerks, was revised as 1:2 with effect from 1.7.1968. One additional post of Upper Division Clerk was sanctioned to each Assistant Educational Office, as per G.O. (Rt) 3170/69/Fin.dated 18.9.1969. Consequently, a large number of vacancies in Upper Division Cadre became available. By G.O. (P) 635/69/fin. dated 27.11.1969, orders were issued for improving the promotion avenues of ministerial staff. Posts of Head Clerk were also sanctioned to all Assistant Educational Offices with effect from 27.11.1969. Consequently, 150 senior Upper Division Clerks were promoted as Head Clerks with effect from 27.11.1969. To fill up those vacancies, petitioners and party respondents were promoted as Upper Division Clerks, by order dated 18-4.1970. In the seniority list of U.D. clerks covering the vacancies in the grade from 1.11.1969 to 30.6.1979, petitioners and party respondents were assigned ranks in conformity with their ranks in the lower cadre, their date of promotion being 18.4.1970. Later, by G.O. (Rt) 3723/86/G. Edn. dated 27.10.1986, promotion of U.D. Clerks was ordered with effect from 27.11.1969. When the date of promotion was projected back to 27.11.1969 from 18-4.1970, the interse ranking of the petitioners and party respondents was altered. Petitioners were assigned ranks below the party respondents, who were juniors to them in the cadre of L.D. Clerks. This alteration in the ranking is under challenge. 4. Account Test Lower and Test on Kerala Education Act and Rules, are the departmental tests to be passed by a Lower Division Clerk for promotion to the Upper Division Cadre. Besides, they have to pass M.O.P. Test during their period of probation as Lower Division Clerk. All the petitioners appeared for the departmental tests held in October, 1969. The result of that lest was published on 17.3.1970. Party respondents in these cases passed the obligatory tests earlier than the petitioners. Besides, they have to pass M.O.P. Test during their period of probation as Lower Division Clerk. All the petitioners appeared for the departmental tests held in October, 1969. The result of that lest was published on 17.3.1970. Party respondents in these cases passed the obligatory tests earlier than the petitioners. They passed the tests before October, 1969. This fact is not in dispute. When a large number of vacancies in the Upper Division cadre arose with effect from 18-4.1970, petitioners and party respondents were fully qualified to be promoted to the Upper Division cadre. On their promotion, they carried with them the ranks they held in the lower cadre. In other words, there was no change in their interse seniority when they came to the Upper Division cadre. 5. By G.O. (Rt) 3723/86/G.Edn. dated 27.10.1986, promotion of L.D. Clerks to Upper Division cadre was to be given effect to from 27.11.1969. When the vacancies arose as on 27.11.1969, petitioners were not qualified, because they had taken the tests in October 1969 only and its results were not published as on 27.11.1969. As per Rule 28 of the Kerala State and Subordinate Service Rules, promotion which depends on the passing of any test is to be made with reference to the circumstances that exist as on the date of the occurrence of the vacancy. As on the date of the occurrence of the vacancy, viz. 27.11.1969, petitioners were not qualified and party respondents were fully qualified. They are juniors to the petitioners in the cadre of Lower Division Clerks. There were about 150 vacancies as on 27.11.1969. Party respondents are only a handful. Even after accommodating them, there remained a large number of vacancies. If the party respondents were accommodated as Upper Division Clerks as on 27.11.1969 and petitioners to the remaining vacancies, as and when they acquired qualifications, how are they be ranked in the Upper Division cadre? 6. In Varghese v. State of Kerala (1981 KLT 458) a Full Bench of this Court observed that it is the time of occurrence of vacancy that should be relevant for determining the question of promotion and not the time the order of promotion is passed. If it is to be the date of promotion that is to be relevant for determining the title to such promotion, according to Their Lordships, the rule is capable of arbitrary exercise. If it is to be the date of promotion that is to be relevant for determining the title to such promotion, according to Their Lordships, the rule is capable of arbitrary exercise. If title to be considered for promotion arises on the occurrence of vacancies and if on the day juniors become eligible for promotion, in the absence of any rule which prohibits such promotion, promotions of juniors would be possible. Even after filling up some of the vacancies, if there remains some more to be filled up, then, as and when persons became qualified for being promoted, they should be entitled to be considered for promotion in those vacancies. In the instant cases, a large number of vacancies arose on 27.1.14969. A handful of Lower Division Clerks were fully qualified for promotion to the Upper Division cadre. They will have to get the post first. The remaining posts will have to be filled up by those who qualify later. The persons who got qualified and promoted to the remaining vacancies, may be senior to those who have already secured promotion. On their getting promotion, they cannot be placed above those who were promoted earlier. If the senior gets promotion along with a few others, subsequently they will carry along with them the rank they had in the lower cadre, without changing the rank and seniority" of the juniors who got promotion earlier. 7. Learned counsel representing the petitioners submitted that petitioners are entitled to the benefit of Rule 28(bbb) and so they must be deemed to have passed the test on the day following the last day of the examination. Petitioners took the test in October, 1969 and they must be deemed to have passed the test in October 1969 itself. Therefore, it is contended that they became qualified in October 1969. Petitioners and party respondents were promoted to the Upper Division cadre on the same day to be effective from 27.11.1969. Their seniority and ranking in the Upper Division cadre should have been fixed on the basis of their seniority and ranking in the cadre of Lower Division Clerk. In other words, their contention is that the fact that the party respondents passed the departmental tests earlier, than the petitioners, cannot be a reason for assigning them seniority over the petitioners. I do not find my way to agree with this argument. 8. In other words, their contention is that the fact that the party respondents passed the departmental tests earlier, than the petitioners, cannot be a reason for assigning them seniority over the petitioners. I do not find my way to agree with this argument. 8. As per Rule 28(bbb), a person will be deemed to have passed the test on the day following the last day of the examination only in case he passes the test when the results are announced. This means that one can be considered to have passed the test on the day following the last day of the examination only after knowing the result of the examination. Before the results are announced, no one can claim the benefit of Rule 28 (bbb) of the General Rules. Three conditions are also to be satisfied by one, who relies on the said rule. They arc: (1) that the promotion should be to the post not involving a change of duty (ii) that the vacancies must remain unfilled and (iii) that they must remain so unfilled for want of test qualified hands. The vacancies arose on 27.11.1969. A few juniors to the petitioners were fully qualified on that day for promotion to the cadre. They must be accommodated to the vacancies first. When they are so accommodated, those vacancies will be filled up. Thereafter, few vacancies remained unfilled for want of test qualified hands. To those vacancies, petitioners can be accommodated by invoking Rule 28 (bbb), because they succeeded in the test taken by them in October 1969. So, they can be accommodated only to such of those vacancies which remained unfilled for want of test qualified hands. In other words, they can take the place below the test qualified hands, who were promoted to the earlier vacancies. In this view of the matter, petitioners can be ranked only below the test qualified juniors, who took the vacancies earlier. 9. By G.O. (Rt) 3723/86/G.Edn. dated 27.10.1986, a large number of vacancies in the Upper Division cadre are to be deemed to have arisen on 27.11.1969. This deeming provision must be given its full import. That means the vacancies must be deemed to have arisen on 27.11.1969 itself. As per the decision in Varghese case referred to earlier, the qualification that existed as on 27.11.1969 is to be the decisive factor. This deeming provision must be given its full import. That means the vacancies must be deemed to have arisen on 27.11.1969 itself. As per the decision in Varghese case referred to earlier, the qualification that existed as on 27.11.1969 is to be the decisive factor. On that date, petitioners were not qualified hold the post, because they were not test qualified. So, the test qualified juniors must get the earlier vacancies. This proposition is in consonance with the principle laid down by the Full Bench in Padmanabhan Nair v. Dy. Director (1990 (1) KLT 337) .«s well. In the above case, the Full Bench observed: "When qualification are prescribed for a promotion post, eligibility for appointment to that post has to be reckoned with reference to the date on which the vacancy arose. If there was a qualified hand, on that date, in the feeder category, he is entitled to be considered for appointment to the post in preference to his unqualified seniors. The date on which the appointment is actually made in immaterial as the title .to the appointment arises on the date of occurrence of the vacancy and is not defeated by the acquisition of qualifications by a senior thereafter". 10. All eligible test qualified hands as on 27.11.1969 are to be given promotion with effect from that date. So, the party respondents, though juniors to petitioners in Lower Division cadre, should get the vacancies with effect from 27.11.1969. The remaining vacancies of Upper Division Clerks, left unfilled for want of test qualified hands, are to be filled up by seniors in the lower division cadre, who acquired the test qualification subsequently by appearing in the test held in October 1969, the result of which was published on 17.3.1970. 11. Thus, the petitioners cannot claim seniority over the party respondents, because they were fully qualified on 27.11.1969 for holding the post and they should have, in fact been promoted to the earlier vacancies. 12. In view of what has been stated above, I find no ground to interfere with the seniority list of Upper Division Clerks, published in the Kerala Gazette dated 7.8.1990. Original Petitions fail and they are dismissed. I make no order as to costs.