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Kerala High Court · body

2018 DIGILAW 506 (KER)

Vipin v. State of Kerala

2018-06-29

P.V.ASHA

body2018
JUDGMENT : The petitioners in WP(C) No.20175 of 2015 are Computer Programmer cum Operators working in the Kerala State Beverages (Manufacturing & Marketing) Corporation (herein after referred to as “the Corporation”). The petitioners in W.P.(C) No.931 are Assistants working in the Corporation. The issue raised in these cases are regarding the promotion to the post of Assistant Manager. WP(C) No.20175 of 2015 2. As per Ext.P4 Recruitment Rules of the Corporation, which provides for the method of appointment and qualification for appointment to various posts in the Corporation, Computer Programmer cum Operators as well as Assistants Grade I are eligible for promotion as Assistant Manager. Appointment to the post of Assistant Manger which is category No.10 is made by promotion from Assistant Grade I/Computer Programmer cum Operator. No ratio is provided in the rules for promotion. The qualification prescribed for promotion as Assistant Manager is: first class M.Com/MBA/inter ICWA/inter CI/holding successful pass in training conducted by IMG. In the absence of qualified hands for promotion direct recruitment can be made. The post of Computer Programmer cum Operator coming under category No.11 is interchangeable with the post of Assistant Grade I in category no.12. Appointment to the post of Computer Programmer cum Operator as well as to the post of Assistant Grade I can be made by promotion from Assistant Grade II. Assistant Grade I can be appointed as Computer Programmer cum Operator by transfer. Both the posts are interchangeable. The petitioners were directly recruited to the post of Computer Programmer cum Operator through Kerala Public Service Commission (“the PSC” for short) and all of them were appointed on the basis of advice by the PSC and they joined on various dates in April 2013. Their probation was declared as per Exts.P2 and P3 issued on 31.10.2014 and 20.01.2015 with effect from various dates in April 2014 (except Smt. Sindhu.S whose probation was declared on 24.9.2014) on completion of one year probation. 3. Respondents 3 to 256 are Assistant Grade I who were initially appointed as Assistant Grade II through the PSC. All of them got promotion as Assistant Grade I in July 2013. 4. 3. Respondents 3 to 256 are Assistant Grade I who were initially appointed as Assistant Grade II through the PSC. All of them got promotion as Assistant Grade I in July 2013. 4. Seeing that the petitioners were not being sent for training to IMG, while the party respondents who were promoted as Assistant Grade-I only subsequent to the declaration of probation of the petitioners, were being deputed, petitioners started submitting representations pointing out that they are entitled to be promoted as Assistant Managers in preference to the party respondents. As per Ext.P6 order dated 11.07.2013 the Corporation had granted promotion to 107 Assistant Grade II provisionally to the post of Assistant Grade I. Petitioners claim that even though those promotions were granted with retrospective effect from 12.12.2012, 16.01.2013, 14.02.2013, etc. seniority of Assistant Grade II as well as Computer Programmer cum Operator under the Corporation can be determined only on the basis of the date of order of their appointment. Corporation had granted promotion to another set of 77 Assistant Grade II as Assistant Grade I as per Ext.P7 order dated 16.01.2014 with effect from various dates in March 2013. Seeing this petitioners submitted representation Ext.P8 dated 24.04.2014 requesting to grant them promotion as Assistant Managers claiming that they were the senior most as promotion was granted to the first batch of Assistant Grade II only in July 2013, subsequent to their appointment. Promotions of Assistant Grade II as Assistant Grade I continued even thereafter. Petitioners submitted Ext.P9 representation dated 19.05.2014 requesting the 1st respondent to depute them for training conducted by the IMG so as to get themselves equipped for promotion as Assistant Manager. Promotions of Assistant Grade II continued as per Ext.P10 order dated 11.11.2014 and the Assistant Grade I were being deputed for training as per Ext.P11. 5. Petitioners submit that as per Ext.P11 internal memo dated 24.12.2014, five of the Computer Operators had submitted their willingness for undergoing training in IMG. However, the Corporation after sending the Assistant Grade I for training, granted promotion to the Assistant Grade I as Assistant Managers, Accountant as per Ext.P12 order dated 29.06.2015. The select list consisting of 23 Assistant Grade I who were eligible for promotion as Assistant Manager was published as per Ext.P13 order dated 29.06.2013. However, the Corporation after sending the Assistant Grade I for training, granted promotion to the Assistant Grade I as Assistant Managers, Accountant as per Ext.P12 order dated 29.06.2015. The select list consisting of 23 Assistant Grade I who were eligible for promotion as Assistant Manager was published as per Ext.P13 order dated 29.06.2013. 23 Assistant Grade I were promoted as Assistant Manager subject to approval by the DPC and subject to the judgment of this Court in WP(C) No.19952 of 2014. Some of the Assistant Grade I had also approached this Court for expediting proceedings for promotion. 6. The claim of the petitioners is that seniority of an employee under the Corporation is governed by rule 35 of the service rules relating to the employees of the Corporation, according to which seniority of party respondents is to be determined on the basis of the date of order of their appointment to the post of Assistant Grade I. If at all Rule 35 does not apply, as per Rule 8 of the Rules it shall be in accordance with Rule 27(a) of Kerala State and Subordinate Service Rules 1988 (KS&SSR), which also provides that date of order of appointment shall be the basis for determining seniority, except in the case of those who are directly recruited, where it should be based on the date of advice by Public Service Commission. The contention of the petitioners is that seniority of the party respondents in the cadre of Assistant Grade I, is to be determined on the basis of the date of Exts.P6 and P7 and similar orders by which they were promoted as Assistant Grade I. As per Rule 34 of the Service Rules, the petitioners who were appointed by direct recruitment are entitled to be assigned seniority with effect from the date on which they were advised by the PSC. It is the case of petitioners that promotion as Assistant Manager shall be made on the basis of seniority of those in the feeder category; even assuming that seniority is to be reckoned in the case of petitioners who were directly recruited through PSC, based on date of order of appointment, petitioners who were appointed in April 2013 are seniors to the party respondents who were promoted as Assistant Grade I only in July 2013 and thereafter as per the orders Exts.P6, P7, P10, P11 etc. though their promotions were with retrospective effect. It is their contention that in the absence of any ratio for promotion to the post of Assistant Manager, among the two feeder categories, the promotion shall be made from among the senior most in the feeder category and therefore petitioners were entitled to promotion in preference to the party respondents who got promotion as per orders issued subsequent to their appointment as Computer Programmer cum Operators. According to petitioners, the retrospective promotion granted to the party respondents from the post of Assistant Grade II as Assistant Grade I, their inclusion in the select list for promotion as Assistant Managers and the promotion granted to them as Assistant Managers in preference to petitioners are contrary to the rules. While challenging the promotions granted to the party respondents they also seek for a direction to the respondents to fix a reasonable quota or ratio for each of the feeder categories. 7. Respondents have filed separate counter affidavits. According to respondents 1 and 2 party respondents who were appointed as Assistant Grade II were eligible for promotion as Assistant Grade I on completion of their probation and the period of probation is only one year. There is no change of duty for Assistant Grade I and Assistant Grade II. Declaration of their probation happened to be delayed on account of some technical reasons which occurred in the office of respondents 1 and 2. Therefore they were granted promotion as Assistant Grade I from the date on which they completed probation and accordingly all of them were granted notional promotion. According to respondents 1 and 2, on such promotion seniority of Assistant Grade I is liable to be reckoned with effect from the date of effect of their promotion as Assistant Grade I and all these happened prior to April 2013 and therefore they are seniors to the petitioners who are appointed as Computer Operators only in April 2013. 8. The method of appointment to the post of Assistant Grade I is by promotion from Assistant Grade II based on seniority or by transfer appointment from Computer Programmer cum Operators and the qualification prescribed in the rule is: completion of probation in the feeder category. The rules do not prescribe any test qualification for completion of probation or for promotion. Therefore 612 sanctioned posts of Assistants are apportioned between Assistant Grade I and Grade II. The rules do not prescribe any test qualification for completion of probation or for promotion. Therefore 612 sanctioned posts of Assistants are apportioned between Assistant Grade I and Grade II. It is stated that all the vacancies of Assistant Grade I and Grade II were reported to KPSC for direct recruitment and the employees recruited through PSC as Assistant Grade II were actually posted to the vacancies of Assistant Grade I also. Therefore, immediately when they completed one year probation, they became eligible for promotion and since there were vacancies, they were granted promotion with effect from the respective dates on which they completed one year probation. It is stated that even though promotion of Assistant Grade II to the post of Assistant Grade I was delayed, that delay cannot affect their further promotions. The first order of promotion as Assistant Grade I was issued on 11.07.2013 after the appointment of the petitioners. At the same time they were appointed in the Corporation in December 2011, January 2012 etc. and were awaiting their promotion. Thus almost 150 Assistant Grade II got ratio promotion with effect from the dates earlier to the date of appointment of the petitioners. At the same time, for promotion as Assistant Manager, those in the feeder category shall have Post Graduate Degree or training from the IMG. It is stated that the senior most Assistants Grade I were deputed for training in IMG. Considering the representation submitted by petitioners, five of the senior most Computer Programmer cum Operators were also deputed for training along with Assistant Grade I. It is stated that since there is no ratio fixed among the feeder categories for promotion, promotion is made in accordance with seniority subject to suitability. The posts of Assistant Grade I as well as Computer Programmer cum Operator are in the same scale of pay. When there is no ratio and the scale of pay is the same for the different feeder categories then promotion shall be made in accordance with the seniority in the feeder category and seniority is to be determined in accordance with the first proviso to clause (a) of rule 27 of KS&SSR. According to the respondents, promotions are made in accordance with rules. According to the respondents, promotions are made in accordance with rules. There is a ratio of 1:1 between Assistant Grade II and Grade I. It is stated that the select list of Assistant Grade I for promotion as Assistant Manager was published on 29.06.2015 based on the seniority list of Assistant Grade II. 9. Respondents 15, 18, 19 and 23 have filed counter affidavit justifying the promotions granted to them as Assistant Grade I and stating that they were entitled to promotion as Assistant Grade I much prior to the date on which they were actually granted promotion. Respondents 44, 45, 73, 83 and 107 along with their counter affidavit produced Exts.R44(f) order dated 15.3.2013, by which their probation was declared on various dates in 2013. It is stated that immediately on completion of their probation in the post of Assistant Grade II, they should have been promoted as Assistant Grade I and the 1st respondent had granted promotion as per Exts.P6, P7 and P10 to 253 Assistant Grade II as Assistant Grade I. It is stated that they were placed on probation for a period of one year from the date of joining duty in accordance with rule 27 of the Service Rules and they were granted promotion only with effect from the date on which they completed probation, as there were innumerable vacancies of Assistant Grade I available; the petitioners entered service only after the party respondents completed the period of their probation. It is also pointed out that the petitioners do not have the qualification prescribed for promotion. Therefore only if they passed the training conducted by the IMG they would become eligible for promotion. It is their case that the delay which occurred at the instance of respondents 1 and 2, in declaring their promotion or in granting them promotion, cannot be reasons for denial of their legitimate right for promotion. It is pointed out that as per the Government orders issued on 19.10.2007 a promotion which does not involve change of duty will have notional effect from the date of occurrence of vacancy or the date on which they acquire eligibility for promotion, while limiting the monetary benefit for a maximum period of one year prior to the date of promotion. In the absence of any fixed ratio or preference provided in the recruitment rules, appointments have to be made in accordance with the seniority in the feeder category, as provided in the 1st proviso to clause (a) of rule 27 of KS&SSR. 10. Respondents 4 to 6, 8, 12, 14 and 22 have also filed counter affidavits reiterating the contentions of the other respondents. They have filed WP(C) No.931 of 2015 challenging Ext.P11 order. According to them rule 35 of the service rules provides that seniority of a person appointed by promotion would be determined by the date of order of promotion and that can only be the date of effect of promotion. It is stated that in the event of issuance of orders of promotion belatedly for no fault on the part of the employees it is only proper and legal to reckon the seniority of a person with effect from the date on which promotion became due. Therefore it is stated that their inclusion in the select list and promotion thereafter are in accordance with law. 11. The learned counsel for the petitioners relied on the judgments of the Apex Court in State of Bihar and others v. Akhouri Sachindra Nath and others : 1991 Supp (1) SCC 334 , State of Uttaranchal and another v. Dinesh Kumar Sharma : (2007) 1 SCC 683 , Pawan Pratap Singh and others v. Reevan Singh and others : (2011) 3 SCC 267 , Boban Lal V and others v. Bharat Sanchar Nigam Ltd. And others : 2012 (2) KHC 591 , State of Uttar Pradesh and otehrs v. Ashok Kumar Srivastava and another : (2014) 14 SCC 720 , etc and argued that seniority is to be reckoned only in accordance with the rules according to which it shall be from the date of order of promotion. 12. 12. On the other hand the learned counsel for the respondents relied on the judgments in Nyadar Singh v. Union of Inida and others and M.J.Ninama v. Post Master General, Gujarat, Ahmedabad : (1988) 4 SCC 170 , Sunaina Sharma and others v. State of jammu and kashmir and others : (2018) 11 SCC 413 , Major General H.M.Singh, VSM v. Union of India & another: (2014) 3 SCC 670 and judgment dated 27.02.2009 in WP(C) No.32386 of 2008 and argued that a harmonious interpretation shall be adopted without defeating the legitimate right of the employees like the party respondents who were granted promotion with retrospective effect rectifying the mistake committed by the respondents in denying their due promotions. It was argued that in the light of Rule 23(c) of Part I KSR, their seniority was liable to be reckoned from the date on which they completed the period of probation, as there is no change in duty and there is a ratio of 1:1 between Grade I and Grade II Assistants. 13. I have Considered the rival contentions advanced by all the parties. 14. The provisions regarding seniority in the service rules of employees in the Kerala State Beverages (Manufacturing & Marketing) Corporation are rules 8, 35 and 38 as far as promotion is concerned which read as follows: 8. Matters relating to services not covered by the Rules. 1. In respect of matters not covered in these Rules, similar rules in government services shall be followed. 2. The Board of Directors shall be competent to issue administrative instructions for the smooth functioning of the Corporation. 35. Seniority: Appointment by promotion: Seniority of a person appointed by promotion will be determined by the date of order of promotion, provided the promotee joins the higher post within admissible joining time. Otherwise his or her seniority will be reckoned with effect from the date of joining duty only, provided that the Board may in cases when due to reasons beyond control an employee could not join duty in time, relax and assign seniority to the employee as though he/she joined duty in the post. 38. Promotion 1. All promotions shall be made on grounds of merit and ability; seniority being considered only where merit and ability are approximately equal. 38. Promotion 1. All promotions shall be made on grounds of merit and ability; seniority being considered only where merit and ability are approximately equal. In cases where promotion is provided for to any category by the rules, the Board may decide that the vacancy be filled up by deputation or direct recruitment, in which case, no employee can claim that the post should be filled up by promotion only. 2. No employee shall be eligible for promotion to a post unless he/she possesses the prescribed qualifications and experience required for the post as prescribed in the recruitment rules approved by the Government vide G.O.(MS) No.8/07/TD, dated 12.1.2007 and as amended vide G.O.(MS) No.106/08/TD, dated 23.5.2008 and G.O.(MS) No.201/08/TD, dated 22.10.2008 – Annexure B,D, C. 3. When promotion to a post is from more than one feeder category of posts, and where the scales of pay of such categories differ, unless otherwise specifically laid down, an employee in a lower scale of pay may be promoted only if a suitable employee in a higher scale possessing the prescribed qualification and merit is not available for such promotion. 4. An employee promoted to a category from a lower category shall not lose right for promotion to another category for which such lower category is a feeder category and his/her service in any higher category shall count for seniority and probation in the lower category. 5. Promotion shall be effected by the competent authority who may constitute an Advisory Committee for the purpose when considered necessary, but the recommendations of the Committee shall be only advisory and not mandatory. 15. Rule 35 specifically deals with seniority in the case of those who are appointed by promotion and provides that their seniority would be determined by the date of order of promotion. It makes clear that the date of order of promotion would be reckoned for assigning seniority, only in the case of those who join duty within the joining time and in the case of others it would be the date on which they join duty, unless the Corporation decide otherwise. It makes clear that the date of order of promotion would be reckoned for assigning seniority, only in the case of those who join duty within the joining time and in the case of others it would be the date on which they join duty, unless the Corporation decide otherwise. The contention of Sri.Reghuraj, learned counsel for some of the party respondents is that Rule 35 governs the seniority of only those who have to join duty on promotion and since there is no difference in the duties and responsibilities for Assistant Grade II and Grade I, Rule 35 will not apply. I am unable to accept that contention. Rule 35 only says that seniority would be determined from the date of joining duty in the case of those who do not join the post within joining time. Though there is no change in duties or responsibilities, it cannot be said that Rule 35 presupposes that promotion should be to a post with change in duties and responsibilities or that it applies only in a case where the incumbent who is promoted has to get relieved from the feeder category and then join the post to which he is promoted or that since Assistant Grade II on promotion need not join duty as Assistant Grade I, their seniority is not governed by Rule 35. Rule 35 only provides that seniority would be determined with reference to the date of order of appointment in normal circumstances or else it is from the date of joining duty. 16. The post of Assistant Grade I, which is serial no.12 in the Annexure to the Service Rules, is to be filled up by promotion of Assistant Grade II based on seniority or by transfer appointment from Computer Programmer cum Operator. Completion of probation in the feeder category is the qualification prescribed for promotion/by transfer appointment. It also provides for category change for a qualified Typist Grade I in the ratio of 1:6 and it provides that every seventh vacancy is to be filled up by a qualified Typist Grade II with 10 years service. There is no change in duty for an Assistant Grade II on promotion as Assistant Grade I and a ratio of 1:1 is maintained between Grade I and II; formal taking charge or joining duty would not be required when promotion is made without transfer. There is no change in duty for an Assistant Grade II on promotion as Assistant Grade I and a ratio of 1:1 is maintained between Grade I and II; formal taking charge or joining duty would not be required when promotion is made without transfer. Even assuming that Rule 35 does not apply, then Rule 8 will come into operation, by which Rule 27(a) of KS&SSR will have to apply, according to which also seniority of a person in a service, class, category or grade is to be determined by the date of order of first appointment to such service, class, category or grade. 17. While rule 38(1) provides that promotion is to be made on the basis of merit and ability and seniority is considered only where merit and ability are approximately equal, the method of appointment to the post of Assistant Grade I, provided in Ext.P4 Recruitment Rules is promotion of Assistant Grade II based on seniority or by transfer appointment of Computer Programmer Cum Operator; the qualification prescribed is completion of probation in the feeder category. Therefore Rule 38 does not apply in the case of promotion of Assistant Grade II to Grade I. Rule 8 provides that in respect of matters not covered in rules, similar rules in Government service shall be followed. Similar rule applicable for Government employees is rule 27(a) of Kerala State &Subordinate Service Rules, according to which seniority of a person in a service, class, category or grade shall be determined by the date of the order of his first appointment to such service, class, category or grade. Therefore as per Rules 35 as well as Rule 8 read with Rule 27(a) of KS&SSR, seniority of Assistant Grade I is to be determined on the basis of date of promotion. Therefore it is to be examined whether the promotion granted to the party respondents based on the seniority reckoned from the date of effect of their promotion as Assistant Gr I is correct. 18. In this context I will examine whether the claims of petitioners are liable to be considered in the light of the judgments relied on by the learned Counsel on either side. 19. In Akhouri Sachindra Nath's case (supra), the apex court was considering a seniority dispute between direct recruits and promotees in the cadre of Assistant Engineers. 18. In this context I will examine whether the claims of petitioners are liable to be considered in the light of the judgments relied on by the learned Counsel on either side. 19. In Akhouri Sachindra Nath's case (supra), the apex court was considering a seniority dispute between direct recruits and promotees in the cadre of Assistant Engineers. The promotees were granted retrospective promotion within their quota, against vacancies which remained unfilled in the absence of qualified Overseers for promotion in the Bihar Engineering Service, Class II. The apex court held that when the promotees were not borne in the cadre of Assistant Engineers at the time when the direct recruitment was made, they cannot be given seniority over direct recruits, as no person can be promoted with retrospective effect from a date when he was not born in the cadre so as to adversely affect others and that seniority is to be reckoned from the date of their initial entry into service in the cadre. 20. In Dinesh Kumar Sharma's case (supra), apex court was considering the claim of a promotee for seniority from the date of occurrence of vacancy, as promotion was made against a retirement vacancy which became available in 1996. On consideration of the provisions in the Uttar Pradesh Agriculture Group ‘B’ Service Rules, 1995 and definition of ‘substantive appointment’ it was held that seniority can be reckoned only from the date of substantive appointment in the post in the cadre of the service, which can only be made after selection in accordance with the rules or executive instructions in its absence and that there cannot be an automatic promotion or appointment unless the Government sanction such promotion and appointment. Proviso to Rule 17 of those Rules provides that when appointment is made against unfilled vacancies in a quota in subsequent years, the persons so appointed shall not get seniority of any earlier year but shall get the seniority of the year in which their appointments are made. Such a rule is absent in the present case. 21. In Pawan Pratap Singh's case (supra), dispute was between two sets of Deputy Jailers directly recruited based on selections made in 1991 and 1994. In para 25, it is held as follows: 45. Such a rule is absent in the present case. 21. In Pawan Pratap Singh's case (supra), dispute was between two sets of Deputy Jailers directly recruited based on selections made in 1991 and 1994. In para 25, it is held as follows: 45. From the above, the legal position with regard to determination of seniority in service can be summarised as follows: (i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be. (ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution. (iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules. (iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime. The dispute in that case was between officers selected by staff selection committee and the other by UPSC. 22. In State of Uttar Pradesh and others v. Ashok Kumar Srivastava and another : (2014) 14 SCC 720 also the Apex court held that in terms of rule 21 of the UP State Medical College Teachers Service Rules seniority was to be determined from the date of order of substantive appointment unless otherwise stipulated in the letter of appointment. The claim for retrospective seniority from the date of occurrence of vacancy was repelled. The claim for retrospective seniority from the date of occurrence of vacancy was repelled. Reiterating the law laid down in Pratap Sing's case the apex court concluded that claim for retrospective seniority was unsustainable. 23. A Division Bench of this Court in Boban Lal V. and others v. Bharat Sanchar Nigam Ltd. And others : 2012 (2) KHC 591 - held that a person cannot claim promotion from the date of occurrence of vacancy and that seniority can be reckoned from the date of order of substantive appointment. Seniority of Sub Divisional Engineers in the BSNL was under consideration. According to which 75% of the posts are to be filled up by promotion of JTOs and 25% by departmental competitive examination. 24. In view of the law laid down by the apex court in the above mentioned judgments, relied on by Sri.Sasikumar, the learned counsel for the petitioners-the Computer Programmer cum Operators, it is clear that unless there is a statutory rule entitling the employees to receive promotion from the date of occurrence of vacancy, the right of promotion does not crystallize on the date of occurrence of vacancy and seniority is to be reckoned from the date on which promotion is ordered i.e. when it is actually effected. The counter affidavit filed by respondents 1 and 2 as well as the orders declaring their probation and orders promoting the party respondents would show that there was considerable delay in declaring their probation and in granting them promotion as Assistant Grade I, despite the availability of vacancies and their probation could have been declared on completion of one year period of probation. It is seen that they were granted retrospective promotion, in such circumstances. Moreover as per rules the only qualification prescribed for promotion is completion of probation and promotion is to be made on the basis of seniority. It is therefore necessary to examine whether the retrospective promotion is in accordance with rules. If that be so the question will have to be considered with reference to that rule also. 25. Now I will examine the judgments relied on by the learned counsel for the party respondents. In the judgment in Sunaina Sharma and others v. State of Jammu and Kashmir and others, (2018) 11 SCC 413 the dispute was between direct recruits and promotees in the post of Excise and Taxation officers. 25. Now I will examine the judgments relied on by the learned counsel for the party respondents. In the judgment in Sunaina Sharma and others v. State of Jammu and Kashmir and others, (2018) 11 SCC 413 the dispute was between direct recruits and promotees in the post of Excise and Taxation officers. Both the appointments were within the quota. The promotees were granted retrospective promotion on various dates between 2002 and 2004 based on which they were placed above the direct recruits. The direct recruits challenged the seniority list. After considering the provisions relating to seniority which provided for determination on the date of first appointment, the apex court in paragraph 11 of the judgment observed that it is a settled principle of law that normally no person can be promoted with retrospective effect from a date when he was not borne in the cadre. It was further held that seniority has to be reckoned only from the date the person entered into that service. Reiterating the proposition in Akhouri Sachindra Nath's case, Koushal Kishore Sing's case, Dinesh Kumar Singh's case etc. that retrospective effect cannot be given to the order of promotion, it was concluded in paragraph 15 that the normal rule is that a person is entitled to seniority only from the date when he actually joined the post. However it was also observed that there are exceptions and some times in-service candidates can be granted promotion from a date anterior to their regular promotion or appointment if the rules enable retrospective appointment on fulfilling the other requirements of the rules. In that case the decision of the High Court that retrospective promotion violated the provisions of rule 9, was upheld, even though the promotees were working against the posts and the promotions were within the quota. The emphasis made by the learned counsel is on the exceptional circumstances referred to by the apex court in paragraph 15, pointing out rule 23 of Part I KSR. 26. The emphasis made by the learned counsel is on the exceptional circumstances referred to by the apex court in paragraph 15, pointing out rule 23 of Part I KSR. 26. This court in Sucheendran v. State of Kerala : 2005 (3) KLT 499 held that the denial of arrears of salary to the APP Grade I on their promotion from Grade II was illegal on the ground that there is no difference in work of APP Grade II and APP Grade I. Rule 23 C of Part I KSR provided that promotions which do not involve change of duties should be given effect from the date on which the vacancy arose. Change was only in salary and promotion was denied at the particular date for no fault on the part of the petitioner therein. 27. Though the claim of the petitioners in Sucheendran's case was for arrears of pay, the party respondents claim that rule 27(a) of KS&SSR has to be read with rule 23 (c) of Part I KSR and the seniority should be determined based on the date from which the retrospective promotion was granted. In the judgment dated 27.02.2009 in WP(C) No.32386 of 2008, denial of promotion to the Asst. Public Prosecutor Grade I was under consideration. In paragraph 11 of the judgment, after considering the impact of rule 23(c) of Part I KSR, the learned single Judge held that rule 23(c) permits to enjoy promotion with all monetary benefits from the date of occurrence of vacancy without assuming the charge if there is no change of duty. It was also observed that Government have issued an order clarifying that promotions which do not involve change of duties, will have notional effect from the date of occurrence of vacancy or the date of acquiring eligibility for promotion, at the same time limiting the monetary benefits for a period of one year prior to the date of order of promotion. It was directed that the title to obtain promotion was clearly on the date of occurrence of vacancy. Therefore there cannot be any dispute over the fact that retrospective promotion is recognised by statutory rules, in such cases. 28. It was directed that the title to obtain promotion was clearly on the date of occurrence of vacancy. Therefore there cannot be any dispute over the fact that retrospective promotion is recognised by statutory rules, in such cases. 28. In Nyadar Singh's case (supra), the apex court was considering the issue as to whether an employee who was directly recruited to a post, can be reverted to a still lower post by imposing a major penalty of reversion/reduction in rank or grade. After analysing the provisions and a series of judgments, apex court found that the rule-making authority would not have intended to clothe the disciplinary Authority with the power which would produce such anomalous and unreasonable situations. Observations in paragraph 22 of the judgment are relevant which read as follows: "22. The meaning to be given to a particular statutory language depends on the evaluation of a number of interpretative criteria. Shorn of the context, the words by themselves are “slippery customers”. The general presumption is that these criteria do not detract or stand apart from, but are to be harmonised with, the well accepted legal principles. In a difficult case, the number of relevant interpretative criteria may be so high that the task of the court in assessing their effect is, correspondingly, difficult. Even the statutory language apparently free from the sins of semantic ambiguity might not, in the context of the purpose, connote or convey its lexicographic thrust; but would acquire a different shade or colour imparted to it by the variations of the interpretation criteria. The ambiguity need not necessarily be a grammatical ambiguity, but one of appropriateness of the meaning in a particular context." 29. In the judgment in H.M.singh v. Union of India : (2014) 3 SCC 670 the apex court held that the denial of promotion to the appellant therein despite his merit, eligibility, suitability and the existence of vacancy much before the date of his superannuation was on account of the lethargy of the respondents in violation of his fundamental rights guaranteed under Article 14 and 16 of the Constitution of India. 30. On an analysis of the aforesaid judgments, it is clear that the normal rule for determining seniority is laid down by the apex court in paragraph 45 of Pawan Pratap Singh's case (supra). 30. On an analysis of the aforesaid judgments, it is clear that the normal rule for determining seniority is laid down by the apex court in paragraph 45 of Pawan Pratap Singh's case (supra). However while reiterating this legal position, in Sunaina Sharma's case (supra), the apex court held that the only exception for deviating from the normal rule is in a case where there is a statutory rule which provides otherwise. It is therefore necessary to examine whether there is any rule applicable to the parties herein which provides for seniority from the date of effect of promotion . 31. Kerala Service Rules, 1959 ('KSR') were issued by the Government of Kerala in exercise of powers vested under the proviso to Article 309 of the Constitution of India. Chapter III of Part I KSR deals with general conditions of service. Rule 23 was amended in exercise of powers under Section 2(i) of Kerala Public Services Act, 1968, inserting clause (d) in Rule 23 of Part I KSR, as per SRO No.1084/2010 on 25.11.2010, with effect from 01.03.2007, which provides as follows: “(d) Promotions which do not involve change of duties shall have effect from the date of occurrence of vacancy, or the date of acquiring eligibility for promotion, whichever is later, but monetary benefits shall be admissible only for a maximum period of one year from the date of order of promotion.” 32. Clause (c) was deleted by way of amendment in 2007 and in 2010 amendment a new clause (c) is inserted making payment of back arrears inadmissible on notional promotion. 33. Therefore as rightly contended by Sri.Varun C.Vijay, the rules relating to seniority in the present case have to be construed in such a manner so as to yield more reasonable and fair results. A literal or strict construction of Rule 27(a) read with rule 8 or even Rule 35 discarding the provisions contained in Rule 23(d) would bring about anomolous and unintended results defeating the very object of that rule. At the same time on a harmonious and contextual interpretation of the provisions contained in Rules relating to seniority, the recruitment rules to the post of Assistant Grade II along with Rule 23(d) of Part I KSR, can avoid such unintended results. 34. At the same time on a harmonious and contextual interpretation of the provisions contained in Rules relating to seniority, the recruitment rules to the post of Assistant Grade II along with Rule 23(d) of Part I KSR, can avoid such unintended results. 34. Going by Rule 23(d) it can be seen that the promotion of party respondents are in accordance with Rule 23(d) of Part I KSR. Therefore in such cases denial of seniority from the date of effect of promotion is not envisaged. Their seniority is liable to be fixed with reference to Rule 23(d) also, with effect from the date from which they were granted promotion. On Promotion from the post of Assistant Grade II to Assistant Grade I there is no change in duties; there is no separate process of joining, unless there is a transfer. Direct recruitment of Computer Programmer cum Operators were made at a time when the party respondents had completed their probation period and lethargy of the Corporation delayed their declaration of probation and promotions. If the promotions are made in normal circumstances, seniority is to be determined with reference to the date of order of promotion. Retrospective promotions were granted in this case in rectification of the mistakes and in recognition of the eligibility of the employees for promotion, in accordance with the recruitment rules. 35. Therefore even though the normal rule for determining seniority is Rule 35 of the service rules which is more or less similar to rule 27(a) of KS&SSR, by Rule 8, provisions in Rule 23(d) of KSR is also liable to be considered, in cases where there is no change of duty and promotion itself is on the basis of seniority as per the recruitment rules and when there is a ratio of 1:1. Rule 23(d) will apply in the case of the party respondents according to which the promotion itself takes effect from the date on which they became eligible. When there is a statutory rule which provides for retrospective effect for promotion, their seniority shall be determined in tune with that rule-Rule 23(d), which has to be read with Rule 8 or 35, as the case may be, of the service rules. 36. When there is a statutory rule which provides for retrospective effect for promotion, their seniority shall be determined in tune with that rule-Rule 23(d), which has to be read with Rule 8 or 35, as the case may be, of the service rules. 36. In that event the petitioners who were advised and appointed subsequent to the date from which the party respondents got promotion, cannot have any claim for promotion as Assistant Manger in preference to the party respondents. 37. However I find that the grievance of the petitioners who are unable to enjoy the benefit of promotion despite their inclusion in the feeder category on par with the Assistant Grade I, requires serious consideration at the end of the respondents by providing either a ratio or a qualifying examination, or otherwise their inclusion in the feeder category will be rendered otiose. The respondents 1 and 2 are directed to take appropriate action on this issue at the earliest and to see that one group is not demoralised. The W.P.(C) No.20175 of 2015 is disposed of as above. WP(C) No.931 of 2015 In view of the judgment in W.P.(C) No.20175 of 2015, no orders are necessary in this case. Writ petitions are disposed of accordingly.