JUDGMENT P.R Ramachandra Menon, J. The challenge in this original petition is against Ext.P3 order passed by the Tribunal whereby, the relief sought for in the O.A No. 1452 of 2013 has been granted ordering promotion retrospectively in terms of an inter-party judgment vide Annexure-A9. The ground for the challenge raised by the respondents in the O.A is that the verdict passed by the Tribunal is not in conformity with the relevant provisions of law, which requires interference by this Court. 2. Heard Sri. T. Rajasekharan Nair, learned Senior Government Pleader appearing for the petitioners as well as Sri. P. Nandakumar, learned counsel appearing on behalf of the respondent/applicant in the O.A 3. The sequence of events reveals that, the respondent herein was working as HSST (Junior), who completed his probation of two years within a continuous period of three years and was eligible to be promoted to the post of HSST (Senior). As a matter of fact, the DPC considered the credentials of the respondent on 22.12.2009 and based on the proceedings of the DPC, he was promoted as HSST (Senior) with effect from 29.06.2010 A claim was mooted by the respondent, that the vacancy had arisen way back in the year 2008 and hence he was entitled to be promoted with effect from retrospective date. It was with reference to the said claim, that the respondent approached the Tribunal by filing the O.A, which has been accepted by the Tribunal, allegedly without any regard to the rule position and the binding precedents and hence the challenge. 4. Learned Government Pleader submits that the post of HSST (Junior) is in the ‘Subordinate service’ whereas the post of HSST (Senior) is in the ‘State service’ and there is considerable change in the nature of duties and such other relevant aspects. It was not correct for the respondent/applicant, to have claimed retrospective promotion with reference to the date of occurrence of the vacancy, as the law has been laid down by the Apex Court in crystal-clear terms as per the decision rendered in Nirmal Chandra Sinha v. Union of India (2008) 14 SCC 29 , holding it in favour of the department. 5. 5. According to the learned counsel for the respondent, there is absolutely no merit or basis for placing reliance on the verdict passed by the Apex Court as referred to above, since the case in hand is governed by separate rules framed by the State, which support the claim of the respondent. It is stated that this is the second round of litigation. The post of HSST (Senior) has to be filled up initially by way of ‘by-transfer’ method and in the absence of any qualified hands in that segment, by way of ‘direct recruitment’. A specific ratio is also prescribed in this regard as 1:3 as evident from Rule 6 of the Special Rules. The respondent had approached this Court earlier by filing W.P (C) No. 27574 of 2007 as the probation of the respondent was not declared on time. According to him, it was liable to be declared, he having completed the probation satisfactorily with effect from 31.08.2007, (having been appointed to the post of HSST (Junior) on 31.08.2005). By virtue of the delay on the part of the departmental authorities, much loss and prejudice was being resulted to the respondent, as direct recruits were being given a march over the persons like the respondent herein. It was in the said circumstance, that several writ petitions came to be filed before this Court including W.P (C) No. 27574 of 2007 wherein the respondent herein is shown as the first petitioner. An interim order was passed by this Court directing that the vacancy shall not be filled up in the meanwhile by direct recruitment. The said writ petitions were disposed of as per Annexure-A2 judgment dated 12.08.2008, giving appropriate directions as contained in paragraph No. 8, which is reproduced below: 8. In the facts and circumstances of the case and taking into account the submissions made by the learned counsel for the petitioners, the learned Government Pleader and the learned counsel for the intervenors, the Writ Petitions are disposed of with the following directions: i) The post of HSST shall be filled up strictly in accordance with Rule 3 of the Special Rules for the Kerala Higher Secondary Education State Service. ii) When any HSST (Junior) who is qualified and who has satisfactorily completed the period of probation is available, no candidate other than HSST (Junior) shall be appointed against a vacancy which arose subsequent to the date of successful completion of the period of probation of HSST (Junior). iii) The process for declaring successful completion of probation of the petitioners shall be expeditiously carried out and the probation of the petitioners concerned shall be declared without delay. iv) It is necessary to ensure that eligible candidates in the category of HSST (Junior) shall not be denied appointment as HSST only because of the delay in getting their probation declared. 6. It was pursuant to the above verdict that the probation of the respondent was declared as per Annexure-A4 order dated 05.02.2009; however with effect from 31.08.2007 There is no grievance in this regard. It was thereafter, that the claim for promotion was considered and Annexure-A5 order was passed on 29.06.2010 promoting the respondent as HSST (Senior). Since the said order was not passed with reference to the actual eligibility of the respondent, a request was made before the authorities on 05.09.2011 to pre-date the promotion. This was rejected as per Annexre-A6, stating that the delay in the declaration of probation was because of various administrative circumstances. This was sought to be challenged by the respondent by filing O.A No. 475 of 2012. 7. After threadbare analysis of facts and figures and taking note of the rival contentions, a specific declaration was made by the Tribunal as per Annexure-A9 verdict dated 04.03.2013, to the effect that the respondent herein, who was the applicant therein, was entitled to have retrospective promotion. The Tribunal observed that altogether 83 posts of HSST were filled up from the qualified HSST (Junior) after 31.08.2007 The Tribunal also referred to the law declared by the binding precedents including the verdict rendered by a Full Bench of this Court and the rule position; particularly Rule 28(b)(i)(10) and Rule 28(b)(iA), besides Rule 28(bb), which were extracted therein. The observation made by the Tribunal with reference to the above aspects is discernible from paragraph No. 6, which is reproduced below: The first respondent admits that altogether 83 vacancies of HSST (Junior) in Mathematics arose after 31.08.2007 They were filled up by Annexure A5 order also. The observation made by the Tribunal with reference to the above aspects is discernible from paragraph No. 6, which is reproduced below: The first respondent admits that altogether 83 vacancies of HSST (Junior) in Mathematics arose after 31.08.2007 They were filled up by Annexure A5 order also. The claim of the applicant is that his promotion should have been given with retrospective effect, at least from 1.9.1987 It is one of the well settled principles of law that the claim of an incumbent for promotion has to be considered with reference to the date of occurrence of the vacancy and not with reference to the date when the question of promotion is taken up. See the Full Bench decisions of the Hon'ble High Court of Kerala in James Mathew v. Chief Justice (1997 KLT 622), Varghese v. State of Kerala ( 1981 KLT 458 ) and Padmanabhan Nair v. Deputy Director (1991) (1) KLT 337. This fundamental principle has been incorporated in Rule 28 of the Kerala State and Subordinate Services Rules also. Rule 28(b)(i)(10) deals with this aspect. The said clause reads as follows: “(10) The claims of a person who qualifies himself for a post, after the select list in respect of that post has been prepared but before the date of occurrence of the vacancy in the higher post shall not be overlooked.” The above provision deals with the claim of an incumbent who became qualified after the preparation of the DPC list. It is specifically ordained that if he became qualified before the occurrence of the vacancy his claim shall not be overlooked. Further Rule 28(b)(iA) says that when a select list is prepared after the date of occurrence of the vacancy, persons who were not qualified on the date of occurrence of vacancy shall not be included in the select list. The said provision reads as follows: “(iA) When a select list is prepared subsequent to the occurrence of a vacancy, no person who was not qualified for inclusion in the select list at the time of occurrence of the vacancy shall be included in the select list for appointment against that vacancy. The said provision reads as follows: “(iA) When a select list is prepared subsequent to the occurrence of a vacancy, no person who was not qualified for inclusion in the select list at the time of occurrence of the vacancy shall be included in the select list for appointment against that vacancy. Note:- If there are no qualified persons for promotion to a post on the date of occurrence of the vacancy, the person who gets qualified first thereafter, shall be considered for promotion to that post.” Rule 28(bb) also reiterates that the claim for promotion shall ordinarily be made with reference to the conditions existing at the time of occurrence of vacancies and not with reference to those at the time when the question of promotion is taken up. The said sub-rule reads as follows: (bb) Promotion which depends upon the passing of any examination:- Promotion in a service or 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 vacancies and not with reference to those at the time when the question of promotion is taken up.” Going by the reply statement of the first respondent, it is the admitted position that the vacancies to which promotions were ordered as per Annexure A5 on 29.06.2010 arose in the year 2008. In paragraph 2 of the additional reply statement of the first respondent dated 7.2.2013, it is stated that 16 vacancies arose on 14.9.2008 and 67 vacancies arose on 15.09.2008 It that be so, the applicants and others promoted by Annexure A5 are entitled to get retrospective effect to their promotion with effect from the date when the vacancies became available to accommodate them according to their seniority. So, the first respondent is bound to reconsider the claim of the applicant for promotion with retrospective effect. It was accordingly, that the Annexure-A6 order under challenge was quashed and the first respondent was directed to re-consider the claim for getting retrospective effect to his promotion in the light of the observations made by the Tribunal within two months. 8. Now comes Annexure-A10 order dated 15.05.2013 passed by the petitioner Department. It was accordingly, that the Annexure-A6 order under challenge was quashed and the first respondent was directed to re-consider the claim for getting retrospective effect to his promotion in the light of the observations made by the Tribunal within two months. 8. Now comes Annexure-A10 order dated 15.05.2013 passed by the petitioner Department. The only reason stated for rejection of the claim, despite the specific observations made by the Tribunal in Annexure-A9, is by virtue of Rule 23(C) of Part I KSR and that since there is change of duties, the petitioner will not be eligible for the benefits of the promoted post, which could be made available only from the date on which he assumes charge in that post. The observation is in the following terms: As per Rule 23(C) of Part I KSR in case of promotion which do not involve change of duties the promotions will have notional effect from the date of occurrence of vacancy or the date of acquiring eligibility for promotion as the case may be, but monetary benefit will be admissible only for a maximum period of one year prior to the date of order of promotion. In this case the petitioner is promoted on by transfer appointment from subordinate service to State Service to a selection post which involves change of duty. Therefore he is eligible for the benefits of the promoted post only on the date from which he assumed charge in that post. 9. Learned counsel for the respondent submits that the idea and understanding of the petitioner Department who has passed Annexure-A10 with reference to Rule 23C is thoroughly wrong and misconceived; in so far as no claim was ever made by the respondent for disbursing any monetary benefit with reference to the retrospective promotion claimed. In so far as the position is specially governed by the relevant rules as adverted to by the Tribunal in paragraph No. 6 of Annexure-A9 order, the right of the persons like the petitioner whose probation was to be declared on time, cannot be deemed as lost or wasted away; which otherwise will extend only undue benefits to others who secured employment by way of direct recruitment. It is also brought to the notice of this Court that Annexure-A9 verdict passed by the Tribunal has become final and the same was never sought to be challenged by the petitioner/Department, who was the respondent therein. 10. In view of the categoric assertion and declaration made by the Tribunal in Annexure-A9, no order could have been passed, to the contrary, by the departmental authorities and hence the same has been rightly intercepted by the Tribunal, which is not assignable at any circumstance. We find considerable force in the submission made from the part of the respondent in this regard. In so far as there is no dispute with regard to the rule position discussed by the Tribunal in paragraph No. 6 of Annexure-A9, merely for the reason that no monetary benefit is payable to the respondent, it cannot be a ground to deny the retrospective promotion as ordered by the Tribunal. In view of the mandate of the relevant rule as referred to in Annexure-A10 itself, no monetary benefits need to be paid to the respondent under any circumstance. The Original Petition fails and the same is dismissed accordingly.