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C.S.Sudha, J.

Is there any criteria to be satisfied/fulfilled by the 'Assistants' of the Kerala University for declaration of probation and for promotion to higher grades/posts ? Is there any mandatory test to be passed or qualified by them for declaration of their probation and for being promoted to higher grades/posts ? The appellants led by learned Senior counsel Sri.George Poonthottam and instructed by Adv.Navaneeth Krishnan A.L. answers the queries emphatically in the affirmative, whereas the party respondents, led by learned Senior Counsel Sri.Jaiju Babu and instructed by Adv.V.Madhusudhanan, with equal if not more vigour, in the negative. Let us examine the controversy involved.

12. The term 'prescribed' is defined under Section 2(14) of the KU Act meaning - prescribed by the Act, or the Statutes, Ordinances, Regulations, rules or bye-laws made thereunder. The fact that the Syndicate has not prescribed any test(s) as contemplated under the aforesaid provisions is not disputed by either side or for that matter by the University. Therefore, it is unnecessary for us to go into the arguments or the several decisions relied on by either side as to the meaning to be assigned to the term 'prescribed' or the manner or procedure by which Ordinances or Regulations are made. It was submitted during the course of arguments that after the impugned judgment, the University in the year 2021 has initiated steps to amend the relevant Statutes so as to make it obligatory for every person appointed as Assistant to pass the obligatory test conducted by the PSC for successful Writ Appeal No.1266 of 2020 & conn.cases completion of probation and promotion. But this process has not yet been completed. Therefore, it was argued on behalf of the party respondents that unless and until tests are prescribed in the manner provided under the relevant Statutes, declaration of probation and promotions cannot depend on pass in the tests. In the absence of a test being prescribed by the Senate as contemplated under the aforesaid provisions, the next question that arises is the 'procedure' to be followed in the declaration of probation and grant of promotion to higher grades or posts.

29. In Vijayakumar S. (Supra) a Division Bench of this Court considered the question whether it was proper to rank juniors whose probation was declared earlier, above their seniors. It was held that there was no Writ Appeal No.1266 of 2020 & conn.cases anomaly in assigning seniority with reference to the basic requirement of clearance of test for declaration of probation and for promotion as on the date of arising of vacancies. In other words, seniority could be assigned to juniors who had completed probation earlier. Referring to the first proviso to Rule 28(a)(i) of the KS&SSR, it was held that this Rule protects the interest of seniors to some extent, but to attract this proviso, three requirements are to be satisfied, that is, (i) firstly, the vacancy should have arisen during the period of probation; (ii) secondly, the senior should be having the relevant test qualifications prescribed for declaration of promotion and (iii), thirdly, he should be otherwise eligible and suitable for such promotion.

30. Hence we hold that declaration of probation and grant of promotions to the Assistants in the University shall be based on Rules 28(a)

(i); 28 (iA) ; 28 (bb) and 28 (bbb) of the KS & SSR. No Assistant shall be eligible for promotion from the category in which he was appointed to the service unless he has satisfactorily completed his probation in that category. Promotion which depends upon the passing of the departmental tests shall ordinarily be made with reference to the conditions existing at the time of occurrence of the vacancies and not with reference to those at the time when the question of promotion is taken up for consideration. The date with Writ Appeal No.1266 of 2020 & conn.cases reference to which the eligibility of the candidates has to be reckoned is the date of occurrence of vacancy. Here it is not the year 2006, from which year the vacancies are stated to exist that has to be reckoned because then the petitioners were not even borne in service. If vacancy was existing when the petitioners or the party respondents qualified in the prescribed tests, they are certainly eligible to be promoted to the higher grade. There is no anomaly in assigning seniority with reference to the basic requirement of clearance of test for declaration of probation and for promotion as on the date of arising of vacancies. In other words, seniority can be assigned to juniors who had completed probation earlier subject to the first proviso to Rule 28(a)(i) of the KS&SSR. This proviso is to be applied to protect the interest of the seniors provided (i) the vacancy had arisen during the period of probation; (ii) the senior should be having the relevant test qualifications prescribed for declaration of promotion and (iii), thirdly, the senior should be otherwise eligible and suitable for such promotion.