JUDGMENT K.A. Abdul Gafoor, J. 1. The petitioner urges a claim for seniority over the 3rd respondent in the category of Assistant Grade I. To that category admittedly the petitioner was promoted on 21.9.95 whereas the 3rd respondent was promoted on 26.9.94. A seniority list in the category of Assistant Grade I was published as per Ext. P4(a). The petitioner holds rank No. 50 whereas the 3rd respondent holds rank No. 32. The petitioner objected to that seniority list. That objection is overruled in Ext. P5. Therefore, the petitioner has approached this Court challenging Ext. P5 and seeking seniority over the 3rd respondent. The petitioner submits that he was senior in the feeder category and was a probationer but had passed the necessary test qualification on the date of promotion of 3rd respondent on 26.9.94. Therefore, he should have been promoted in preference to the 3rd respondent as Assistant Grade I and would have been assigned rank over the 3rd respondent in Ext. P4(a). That is the case of the petitioner. 2. The facts are as follows: The petitioner was advised on 5.3.90 for appointment as Assistant Grade II. The 3rd respondent was so advised on 1.11.91. Both of them joined duty. On the basis of R.27(c) of the General Rules of the K.S. & S.S. Rules, the petitioner was senior because the date of advice of the petitioner is earlier than that of the 3rd respondent in the category of Assistant Grade II. 3. R.10 of the Kerala Secretariat Subordinate Service Rules provides that "Every person appointed to a category shall from the date on which he joins duty be on probation, if he is appointed by direct recruitment or by transfer, for a total period of two years on duty within a continuous period of three years". To have satisfactorily completed probation, one incumbent should have been on duty as aforesaid. Immediately on joining duty, petitioner proceeded on leave on 23.4.90 as granted in terms of Ext. P1 for employment abroad. The leave expired only on 5.9.93. Petitioner rejoined duty on 6.9.93. By that time the period prescribed for probation on the Special Rules was over. Therefore, the petitioner has to recommence the period of probation in terms of Para.5 of Appendix XII A to the Kerala Service Rules, as per which the petitioner has been granted leave. The leave expired only on 5.9.93. Petitioner rejoined duty on 6.9.93. By that time the period prescribed for probation on the Special Rules was over. Therefore, the petitioner has to recommence the period of probation in terms of Para.5 of Appendix XII A to the Kerala Service Rules, as per which the petitioner has been granted leave. Immediately thereafter, the petitioner acquired the required test qualification for promotion to the post of Assistant Grade I on9.9.94. Immediately thereafter, a vacancy arose in the category of Assistant Grade I. That was on 26.9.94. As on 26.9.94 the petitioner had not completed the probation whereas his admitted junior, respondent No. 3, had admittedly completed probation on the said date and had acquired the required obligatory test for such promotion. The 3rd respondent was, so, promoted, because R.28(a) of the General Rules specifically provides that no person shall be promoted to the higher category unless he has satisfactorily completed probation. The petitioner had admittedly not completed the period of probation on 26.9.94 whereas his immediate junior had completed. Therefore, the petitioner could not be promoted in terms of R.28(a). The 3rd respondent, his admitted junior was fully qualified for promotion and he was the next senior incumbent to be promoted. So, she was promoted as Assistant Grade I on 26.9.94. Later against a vacancy subsequently arisen, the petitioner was promoted on 21.9.95 after he had completed the period of probation. Petitioner agitated that he should have been promoted in preference to the 3rd respondent. A seniority list in respect of Assistant Grade I was prepared as seen from Ext. P4(a) wherein based on the earlier promotion of the 3rd respondent, she was granted rank No. 32 as against No. 50 granted to the petitioner. The petitioner objected. That objection was overruled as mentioned above in Ext. P5. It is in the above circumstances, the petitioner has approached this Court challenging Ext. P5 and claiming seniority over the 3rd respondent. 4. The petitioner objected. That objection was overruled as mentioned above in Ext. P5. It is in the above circumstances, the petitioner has approached this Court challenging Ext. P5 and claiming seniority over the 3rd respondent. 4. The claim of the petitioner for seniority over the 3rd respondent is as contained in the proviso to R.28(a) which reads as follows: "Provided that a probationer in a class, category or grade shall not be superseded for promotion to a higher class, category or grade by his junior, if the vacancy in the higher class, category or grade arises within the period specified in the Special Rules for completion of probation in the class, category or grade in which he is probationer and if he has passed the test or tests prescribed for successful completion of probation and is otherwise eligible and suitable for such promotion; but his promotion shall be subject to the condition that he satisfactorily completes the probation in the class, category or grade from which he was promoted within the period prescribed therefore, and for this purpose the period of service put in by him in the higher class, category or grade shall be reckoned towards probation in the class, category or grade from which he was promoted and also in the class, category or grade to which he was promoted." Petitioner submits, after having rejoined duty on 6.9.93 he was recommencing his probation and he was a probationer in terms of the Special Rules, when the 3rd respondent has been promoted on 26.9.94. By that time, he acquired the test qualification necessary for promotion. Therefore, applying the said proviso petitioner should not have been superseded. 5. That is a simple interpretation of the proviso. But, a close reading of the proviso will make it clear that the petitioner cannot get any aid at all from the said proviso. The proviso makes it clear that "a probationer in the class, category or grade shall not be superseded for promotion to a higher class, category or grade by his junior if the vacancy in the higher class, category or grade arises within the period specified in the Special Rules for completion of probation". The proviso does not envisage a situation or a vacancy being arisen during the period of probation of an incumbent but during the period of probation "specified in the Special Rules". The proviso does not envisage a situation or a vacancy being arisen during the period of probation of an incumbent but during the period of probation "specified in the Special Rules". The period specified in the Special Rules for probation is two years of duty. That period can be completed, within a time of maximum three years. So, there may occur situations when one among the several incumbents joined on the same day completing the period of probation earlier on completion of two years, than another incumbent completing the probation taking more than two years because of his short absence from duty and certain other incumbents completing probation by taking three years because of long absence from duty. If the petitioner's contention with reference to the proviso is accepted, it will be taken that the person who is absenting long will be treated always as a probationer and therefore, even if a vacancy arises during the period of the last three years, and if juniors had already completed probation and acquired test qualification, absenting senior shall always be promoted. That is not the position emerging from the proviso. 6. Seniority is in terms of R.27(c) based on the date of effective advice. There may be situation where one incumbent may be advised earlier joining duty later than an incumbent later advised. In such circumstances, applying R.27(c) the incumbent who joins duty later will be senior. But, the junior who commences service earlier will complete probation earlier. That will result in a situation that the senior completing probation later than the junior. When vacancy arises, if both of them have got qualified and by that time if the junior had completed the period of probation, there may arise situation that the junior will be promoted as the senior, who joined duty later not because of his fault, not completing probation. It is to ward of this illegality or injustice that may be faced by a senior who joined duty later for no fault of his, the proviso was introduced. Thus, the proviso will not enable a person who had been away abroad for employment and had been absent from duty. That is why, the proviso had been carefully worded as the vacancy being arisen "within the period specified in the Special Rules for completion of probation". Thus, the proviso will not enable a person who had been away abroad for employment and had been absent from duty. That is why, the proviso had been carefully worded as the vacancy being arisen "within the period specified in the Special Rules for completion of probation". So far as the petitioner is concerned, the period specified in the Special Rules for completion of probation expired on 5.3.92. So, petitioner cannot get the benefits of the proviso. Therefore, Ext. P5 cannot be said to be illegal or arbitrary. Petitioner could not have been aspired for promotion on 26.9.94 when the 3rd respondent was promoted, as the petitioner was still on probation even beyond the period specified in the Special Rules for promotion. O.P. fails. Dismissed.