1. These writ applications have come before us by virtue of an order of reference, dated 26 November 1963.

2. The two cases raise a common question and it will be sufficient to refer to the exhibits produced and marked in Original Petition No. 1715 of 1963 and to state the facts relating to the petitioner therein. Conclusions reached on those facts must necessarily apply to the petitioner in Original Petition No. 1716 of 1963.

3. These are the facts. The petitioner in Original Petition No. 1715 was appointed as an Inspector of Local Fund Accounts on 4 December 1957 pursuant to Ex. P. 8 order, dated 27 November 1957. He continued in that post till he was reverted consequent on Ex. P. 9 order, dated 11 September 1959. He was again promoted by Ex. P. 10 order, dated 18 May 1962. This promotion is said to be under Rule 31 (a)(1) of the Kerala State and Subordinate Services Rules which had come into operation in the meantime. There was a proposal thereafter to revert the petitioner and the petitioner made representations against this proposal and this is evidenced by Ex. P. 1, dated 31 January 1963. But by Ex. P. 11 order, dated 23 March 1963, the petitioner was ordered to be reverted though it is mentioned Subject to review based on the orders that may be passed on their representations which are under consideration of Government.

Exhibit P. 11 order was challenged before this Court in Original Petition No. 695 of 1963. This writ application was dismissed with a direction that the representations of the petitioner should be considered. Exhibit P. 2 is the order that has been passed since then and it is stated therein:

The revised integrated gradation list of the Local Fund Audit Department was issued in G.O. Ms. No. 585, dated 30 October 1962. This list has to be followed for making promotions or reversions, as the case may be, pending publication of the final list. As the petitioner gets only a lower rank in the revised integrated gradation list and as, according to this revised list, he is not entitled to hold the higher post, his continuance in the higher poet of Inspector of Local Fund Accounts is not in order. His earlier appointment does not confer on him any preferential claim for future appointment, and it was merely provisional. As the preliminary integrated gradation list has been revised with effect from 1 November 1956 the promotions made from that date based on the preliminary list have necessarily to be reviewed by reverting the junior persona to the extent necessary to make room for their seniors.

And Ex. P. 3 is an order implementing Ex. P. 2 and the petitioner has been directed to be posted as upper division auditor with effect from 26 August 1963.

4. These orders, Exs. P. 2 and P. 3, are challenged 5n this writ application. We shall refer to the other documents that have also been challenged in these writ applications later on.

5. The challenge made regarding the validity of Exs. P. 2 and P. 3, succinctly stated, turns on the point, raised by counsel on behalf of the petitioner, that by virtue of the appointment that the petitioner secured under Ex. P. 8, he has also obtained a preferential claim to be promoted to the higher grade. It is urged that, notwithstanding the reversion of the petitioner by Ex. P. 9 in 1959, he is entitled to be promoted to the higher grade in any subsequent vacancy that arose. Elaborating on this contention it is argued that the allotted personnel from the Madras State, though now ranked above the petitioner in the integration list which has been published on 30 October 1962, do not get any preferential claim to promotion in view of the fact that none of them had passed the requisite test for promotion to the higher grade before the expiry of the period of exemption that has been granted to them. Exemptions have been granted by the orders, Exs. P. 4 (a) to P. 4 (d). A reading of these exhibits shows that the allotted personnel have been granted an opportunity to appear for two examinations, the first of which was to have been held in March 1958 and the second, in November 1958. It has been pointed out by counsel appearing on behalf of the respondents that no examination was, as a matter of fact, held in November 1958 and that the second examination was really held only in April 1959. On this basis, respondents' counsel also stated before us that three of the respondents, viz., respondents 8, 23 and 30, had passed in the second of the examinations as could be seen from the results published of that examination on 2 July 1959 and by virtue of a Government. Order R5-NO. 308/60, Pin., dated 8 March 1960. We are not going into these questions as to whether there were two examinations held in 1958 itself or the two examinations for which these respondents could have appeared were held only in March 1958 and April 1959. This, of course, is a matter which has to be considered for determining the rights of the parties, but we must leave this question to be determined by the Government. We however wish to make it clear that if there are, among the respondents, any who have obtained the necessary test qualifications, by passing any one of the two examinations for which they were entitled to appear by reason of Exs. P. 4 (a; to P. 4 (d), they will be entitled to promotion in preference to the petitioner.

6. We may also mention that, as we understand these exhibits, the respondents who were seniors to the petitioner could have been promoted notwithstanding the lack of the necessary test qualifications in view of the exemptions contained in these orders. But this apparently was not done because according to the then existing (existing at the time of Ex. P. 3) integration list the petitioner was senior to the respondents. The Government Pleader has produced that list along with the copy of a letter No. LF (a) 1-1990/57, dated 8 May 1957, written from the office of the Examiner of Local Fund Accounts.

7. Apart from the three respondents mentioned earlier, i.e., respondents 8, 23 and 30, it is admitted that none of the other respondents passed the test before or at the examination held in April 1959. So, the petitioners contend that their appointment on 4 December 1957 gives them a preferential right to be considered for promotion in any vacancy that may arise in the upper cadre in preference to those respondents who had not passed the tests within the period of exemption. Counsel on behalf of the petitioner has also relied on Rules 6 and 7 of the Kerala State and Subordinate Services Rules, 1958, read with proviso in Rule 35 reading as under:

Provided that if there were no rules or orders prescribing the period of probation for such post at the time of his first appointment thereto, the provisions of these rules and of the special rules regarding probation shall apply to him and any period of duty rendered by him in such post before the date of issue of such rules shall count towards probation if and to the extent such service would have counted, had these rules and the special rules come into force at the time of such first appointment.;

and contends that the appointment on 4 December 1957 would give a preferential claim to the petitioner not only on the general basis that an earlier promotion should give him the right to be preferred in any subsequent vacancy but also on the basis that the petitioner had become a probationer and had on that basis also acquired a right to be considered for promotion in any subsequent vacancy that may arise. For this purpose Rule 7 has been particularly relied on.

8. Counsel on behalf of the respondents, on the other hand, urge that these rules can have no application and even if the rules applied, the petitioners cannot get any preferential claim.

9. These aspects have not been considered by the Government. The petitioner's case is that ha got his appointment on 4 December 1957 not by virtue of his seniority in the list of 1957, not at any rata exclusively by virtue of that seniority, but by the fact that he had the test qualification at that time which nobody else senior to him had at that time. It is also stated that the majority of the respondents did not acquire those test qualifications within the period of exemptions granted by Exs. P. 4 (a) to P. 4 (d) orders. This being be, it is urged that the promotion made on 4 December 1957 entitled him to priority in the matter of promotion. This is so, it is stated, notwithstanding the fact that the promotion was provisional in one sense, viz., that it was subject to finalization of the integration list. It is pointed out that the preferential claim will not be defeated by a rearrangement of the seniority list, for the earlier promotion was secured on the basis not of seniority alone but on the fact that the petitioner had the test qualifications which the others did not possess at that time. This must be so, urges counsel for the petitioner, because otherwise the exemption orders will cease to have any meaning. These are the aspects which hive to be considered by the Government and these, as far as we can see, have been disposed of by one sentence in Ex. P. 2:

His earlier appointment does not confer on him any preferential claim for future appointment, as it was merely provisional.

The meaning of the word " provisional" in the context in which it has been used in Exs. Rule 1 and Rule 4 has to be determined. Counsel on behalf of the respondents has brought to our notice the decision of this Court in Flora Hilda Wilson v. State of Kerala 1960 K.L.T. 257 and has contended that it is provisional for all purposes. The order, Ex. Rule 1, only states :

They have also declared that all appointments as on or after 1 November 1956 would be held only on a provisional basis pending the settlement of the question of comparative seniority between the members of the staff of allied departments under the former Governments of Travancore-Cochin and Madras as on the above date. In making regular promotion to vacancies in a higher class or grade of posts after the preparation of the combined list, no preferential treatment should be given to persona merely by virtue of any provisional promotions made on the basis of the above orders.

10. It is the contention of counsel on behalf of the petitioner that the promotion that has been given to the petitioners is not merely on the basis of the provisional integration list but is based substantially if not essentially on the fact that the petitioner had the test qualification and the respondents did not have the teat qualification at that time. The majority of the respondents also did not obtain the test; qualification within the period of the exemption. So it is contended that they are not entitled to supersede the petitioner. This aspect, we think, must be considered afresh by the Government. They will do so uninfluenced by anything said in the judgment referred in Flora Hilda Wilson v. Stale of Kerala 1960 K.L.T. 257 (vide supra) and in this judgment.

11. A further question has been mooted as to whether an infringement of the rules, the Kerala State and Subordinate Services Rules, framed under Article 309 of the Constitution, would be justiciable under Article 226 of the Constitution. In view of the pronouncement of the Supreme Court in State of Uttar Pradesh and Ors. v. Babu Ram Upadhya and in view of the fact that an unequal application of a principle embodied in a rule framed under Article 309 of the Constitution would be violative of the equality granted by Articles 14 and 16 of the Constitution, we are of the view that it is justiciable.

12. The remaining points to be considered relate to the exemption order, Exs. P. 5, P. 6 and P. 7, as also Ex. P. 4 (e). The first of these, Ex. P. 5, has reference to respondents 9 and 10. The exemption that was granted by Ex. P. 5 was to non-graduates and to those belonging of the scheduled castes and scheduled tribes. The former was given four years' time and the latter six years' time to pass the test, it state by counsel on behalf of the petitioners that respondent 9 and 10 did not obtain the test qualification within the periods of exemption. The contention of counsel is that respondents 9 and 10 therefore stand on the same footing as respondents 4 to 7 whose cases have already been dealt with.

13. Exhibit P. 6 order relates to respondents 11 and 12. Exemption granted by Ex P. 6 is due to old age and long service. According to the counsel for the petitioners, the exemption granted will affect persons allotted from Madras State as well, and therefore, is violative of Sub-sectiontion (7) of Section 115 of the States Reorganization Act.

14. Exhibit P. 7 along with Ex. P. 4 (e) which affect respondents 14 and 15 have also been challenged by counsel on behalf of the petitioners on the ground that these can have no application after the coming into force of the Kerala State and Subordinate Services Rules except to the extent provided by the amendment introduced to Rule 27 of the Kerala State and Subordinate Services Rules.

15. How many vacancies there were after 4 December 1957, for what periods of time those vacancies existed, who were promoted to those posts, whether those promoted belonged to the Travancore-Cochin personnel or the Madras personnel all these are relevant factors to be considered in determining the points raised by the petitioners. Apart from the fact that we have no material before us for deciding-those questions, it is not for us, in the first instancs, to consider or decide those questions. The points mentioned and formulated above have also not been dealt with by Government in the previous orders. The case of the two petitioners in these two writ petitions will have to be considered afresh by the Government. Though we have referred only to the facts and the exhibits in Original Petition No. 1715 of 1963 as we indicated earlier the same questions arise for determination in Original Petition No. 1716 of 1963 as well and they too will be considered.

16. In the result, we direct the Government to consider afresh the questions mentioned above and in the light of what is stated above. We make it clear that after such consideration it is open to the Government by order to amend, alter or confirm Exs. P. 2 and P. 3 orders. In the meantime the status quo as at present will be maintained. It will be open to the petitioners or to any of the respondents if they feel aggrieved by any further orders passed by Government, to approach this Court again.

17. We dispose of these writ petitions on the above terms but make no order as to costs.