Abdul Salam J. Head of Section (Retired) vs The State of Kerala, The Director of Technical Education and The Principal, Government Engineering

K. Balakrishnan Nair, J.—The appellant was the writ petitioner. He was working as Head of Section in a Polytechnic. His next promotion post is that of Principal. He was included in the Departmental Promotion Committee (for short "DPC") list published by the Government as per Ext.P1 notification dated 14.6.1999, for appointment to the post of Principal during the year 1999-2000. Altogether 28 persons were included in the said select list and the appellant was rank No. 10 therein. Soon after the publication of the rank-list, this Court stayed the appointments from it. Finally, the stay was vacated on 9.2.2000. Immediately thereafter, by Ext.P2 order dated 22.2.2000, 21 persons were promoted to the post of Principal. But, in the meantime, the appellant attained the age of superannuation on 31.10.1999. Therefore, he became ineligible for promotion on the date on which promotions were ordered as per Ext.P2. The appellant submitted that the vacancies arose earlier and therefore, he should have been promoted with retrospective effect. At least for the purpose of computing the pensionary benefits, he may be given the said benefit of promotion, it was claimed. His representation in this regard was rejected by the Government by Ext.P5 communication dated 9.5.2007. Challenging Ext.P5 and seeking consequential reliefs the Writ Petition was filed. The learned Single Judge, after hearing both sides, dismissed the Writ Petition. The learned Judge took the view that by Ext.P2, promotions were ordered with prospective effect. Since on the date of promotion the appellant/writ petitioner was not eligible for promotion, there is nothing wrong in denying him the benefit of promotion, which he claimed on the strength of Ext.P1. Feeling aggrieved by the said decision, this Writ Appeal is preferred by the appellant.

We heard the learned Counsel on both sides. It is one of the fundamental principles of service jurisprudence that the claim of the incumbent for promotion should be considered with reference to the date of occurrence of the vacancy. For various reasons, there will be delay in actually ordering the promotions. If that date is to decide the fate of the incumbents, the same will work out serious prejudice. That is why this Court as well as the Apex Court has repeatedly held that while considering the title for promotion, the date of occurrence of the vacancy is relevant. In this case, it is true, promotions could have been ordered only after 9.2.2000, the date on which this Court vacated the interim order of stay. But, the appellant''s claim should have been considered, if there was a vacancy available before 31.10.1999, for promoting him according to his position in the rank-list. Having regard to his position in Ext.P1 and the number of promotions ordered under Ext.P2, we think, the turn of the appellant must have arisen before 31.10.1999, the date of his superannuation. So, this is a matter to be examined by the Government, which is the appointing authority.

In the result, the Writ Appeal is allowed. Ext.P5 is quashed. The 1st respondent is directed to consider the claim of the appellant for promotion to one of the vacancies available before 31.10.1999, having regard to his position in Ext.P1 DPC list. This, the 1st respondent shall do within three months from the date of production/receipt of a copy of this judgment. If the appellant is found to be eligible for promotion before 31.10.1999, he shall be promoted notionally. Having regard to the said notional promotion, his terminal benefits shall be re-computed and released to him within two months thereafter.