JUDGMENT : G.K. Misra, C.J. - The Petitioner entered into Government service as a Lower Division Assistant in the Orissa Secretariat on 19-5-1945. He passed the Secretariat Training Class Examination in 1950 and was confirmed as a Lower Division Assistant on 16-11-1949. He was promoted to Upper Division Assistant on 5-5-1950 wherein he was confirmed on 24-1-1955. He was promoted to Upper Division Grade I on 25-4-1954 and confirmed therein on 20-10-1957. He was promoted as Junior Head Assistant on 3-1-1962 and continued as such till the date of filing of this application. 2. On 1-9-1962, opposite party No. 2 P.K. Patnaik was promoted as Senior Head Assistant. On 10-10-1964, opposite party No. 3 B.B. Patnaik was promoted as Senior Head Assistant. On 3-1-1962 the Petitioner and opposite parties 2 and 3 were promoted as Senior Head Assistants. The Petitioner's grievance is that opposite parties 2 and 3 were junior to him and they had been promoted as Senior Head Assistants by superseding him contrary to the rules. He has accordingly filed this writ application under Article 226 of the Constitution for a declaration that in the Gradation List prepared on 19-4-1963 he is to be shown as the senior most and that consequential promotions be determined accordingly and that he should be declared to have been promoted as Senior Head Assistant with effect from 1-9-1962 or at any rate from 10-10-1964. 3. To avoid confusion, it would be proper to consider the case of the Petitioner vis-a-vis opposite parties 2 and 3 separately. The history of service of opposite party No. 2 (P.K. Patnaik), as would appear from the Secretariat Establishment List published by the Government of Orissa in the Home Department, as it stood on 1-4-1966, shows that on 9-2-1938 be entered into Government service and was brought into the Orissa Secretariat into the defunct Department of Irrigation and Drainage on 6-12-1949. On 5-11-1950, be was allowed to work as a Grade I Assistant in an ex-cadre post in the Home Department in connection with Boudh-Dhenkanal Tribunal. From that day tin 1-6-1959 for about 9 years-be continued to work in the ex-cadre post as a Grade I Assistant. He passed the Secretariat Training Class Examination in 1951. He never worked as a Grade II assistant at any time in the Secretariat. From that day tin 1-6-1959 for about 9 years-be continued to work in the ex-cadre post as a Grade I Assistant. He passed the Secretariat Training Class Examination in 1951. He never worked as a Grade II assistant at any time in the Secretariat. Despite that, however, his confirmation both as Grade II Assistant as was as Grade I Assistant was made on 24-8-1957. He was promoted as Junior Head Assistant on 3-1-1962 but subsequently, according to the counter-affidavit filed on behalf of the State, the date of his promotion was revised and he was appointed Junior Head Assistant retrospectively with effect from 9-8-1958. He was confirmed as Junior Head Assistant on 9-2-1965 and was promoted to the rank of Senior Head Assistant on 1-9-62. 4. In relation to opposite party No. 2, the Petitioner's contention is that Rule 11-3, 11-4 and 11-9 in Chapter II of the Orissa Secretariat Instructions, 1961 were violated. These rules may be extracted: II-3. Assistants, Upper Division-(a) Vacancies in the upper division, Grade II, of any department will be filed both by direct recruitment and by promotion of lower division assistants in that department. If no suitable person for promotion in the same department is available, vacancies may be fined up by recruitment of assistants from other departments, beads of departments and other offices. No lower division assistant will be promoted to the upper division, Grade II, unless be has passed the secretariat training class examination and is considered fit to perform all the duties of an upper division assistant. Vacancies in upper division; Grade I, will be fined by promotion of suitable Grade II Assistants. If suitable grade II assistants are not available in the department itself, the vacancies may be filled up by promotion of grade II assistants of other departments. Stenographers will be illegible for appointment as assistants in the promotion quota provided they pass the secretariat training class examination beforehand and are considered suitable to perform all the duties of an upper division assistant. (b) The period of probation for assistants promoted to the upper division shall be one year, but that for assistants recruited directly from outside shall be two years. (c) No direct recruit assistant shall be confirmed in the upper division until be has passed the secretariat training class examination. II. 4. (b) The period of probation for assistants promoted to the upper division shall be one year, but that for assistants recruited directly from outside shall be two years. (c) No direct recruit assistant shall be confirmed in the upper division until be has passed the secretariat training class examination. II. 4. Head Assistants-(a) An assistant who has completed not less than 5 years of service in the post of Grade I or any other post declared equivalent thereto by Government may, ordinarily, be considered for promotion to the post of junior head assistant. (b) An assistant who has completed not less than 2 years of service in the post of junior head assistant or any other post declared equivalent thereto by Government may, ordinarily, be considered for promotion to the post of senior head assistant. (c) Promotion to the post of head assistant of a department should not, ordinarily, be confined to the assistants of the department and should be made taking into consideration the cases of assistants suitable for such promotion in consultation with the Secretaries of other department. II-9. An cases of doubt regarding the interpretation of the rules relating to appointment, probation etc. of secretariat assistants or of their application to individual cases, shall be referred to the Political and Services Department whose decision shall be final. 5. The contention raised on the basis of Rule 11-3 is that at no point of time opposite party No. 2 worked as a Grade II assistant. The order allowing him to work as Grade I Assistant from 5-11-1950 was contrary to the Rules from the very inception. The contention based on Rule 11.4 is that an assistant who has completed not less than 2 years of service it the post of Junior Head Assistant or in any other post declared equivalent thereto, by Government, may ordinarily he considered for promotion to the post of Senior Head Assistant. It is urged that opposite party No. 2 was promoted as Junior Head Assistant on 3-1-1962, but was promoted as Senior Head Assistant on 1-9-1962, within 8 months. Reliance is placed on Rule II-9 as, in this particular case, at one stage a reference was made to the Political and Services Department for obtaining the opinion of the Public Service Commission, and the Public Service Commission gave an opinion supporting the case of the Petitioner. Reliance is placed on Rule II-9 as, in this particular case, at one stage a reference was made to the Political and Services Department for obtaining the opinion of the Public Service Commission, and the Public Service Commission gave an opinion supporting the case of the Petitioner. All the aforesaid contentions are devoid of force and the Petitioner cannot be declared senior to opposite party No. 2 on the basis of these Rules. 6. Rule II-4(b) itself clarifies the position that ordinarily there will be no such promotion from the post of Junior Head Assistant to the post of Senior Head Assistant before the expiry of two years. The word "ordinarily" does Dot fetter the power of the appointing authority to give promotion earlier. In this view of the matter, it is unnecessary to go into the question whether opposite party No. 2 was promoted to the post of Junior Head Assistant on 3-1-1962, or retrospectively from 9-8-1956. The contention that opposite party No. 2 at no time held the post of Grade II Assistant and as such could not have been promoted as Grade I Assistant has also no basis inasmuch as the authorities considered him as early as in November 1950 to be fit enough to hold the post of Grade I Assistant, which he held for a period of 9 years right up to 1-6-1959. Doubtless the Public Service Commission at one stage gave an opinion somewhat supporting the Petitioner's case, but that opinion is not binding on Government. All that Rule 11-9 says is that the opinion of the Political and Services Department, on a reference, is final. The Political and Services Department Expressed no final opinion and merely for warded the opinion of the Public Service Commission to the Home Department. As already stated, the opinion of the Public Service Commission is merely advisory and is not determinative. These rules therefore do not advance the case of the Petitioner. 7. That the Petitioner's case vis-a-vis opposite party No. 2 has absolutely no strength would be manifest from Rules 26 and 52-A(I) of the old Orissa Secretariat Instructions 1940, which were in force till 1961. These rules run thus: 26. Assistants in each department shall be arranged into groups in the ratio of two upper division assistants to one lower division assistant. The upper division service will be divided into two grades, viz., lower and higher. These rules run thus: 26. Assistants in each department shall be arranged into groups in the ratio of two upper division assistants to one lower division assistant. The upper division service will be divided into two grades, viz., lower and higher. Ordinarily, the posts of upper division assistants will be filled by promotion from among the lower division assistants of the Secretariat. Ordinarily, promotion to the upper division will be by seniority from the lower division assistants in the same Department but, no lower division assistant will be promoted to the upper division unless he has passed the departmental tests that may be prescribed by Government and is considered fit to perform all the duties of an upper division assistant. Promotion from the junior grade of the upper division to the senior grade will ordinarily be by seniority. Departures from this rule may be made if the Secretary considers it necessary to give accelerated promotion, for reasons which should be recorded. Persons in offices outside the Secretariat may also be recruited to the upper division if no one in the Secretariat is found fit for promotion. 52-A(1). The seniority of assistants in any grade of the upper division of the Secretariat will ordinarily be regulated according to the date of promotion to the grade except in the case of assistants recruited from other offices in whose case the question will be decided by the Secretary concerned in consultation with the Home Department on the merits of each individual case, due regard being had to their length of permanent service under Government and pay at the time of appointment. Rule 26 lays down that departures from that rule (sic) be made if the Secretary considers it necessary to give accelerated promotion for reasons which should be recorded. Persons in officer outside the Secretariat may also be recruited to the Upper Division if no one in the Secretariat is found fit for promotion. It was on the basis of this rule that opposite party No. 2 holding an ex-cadre post right upto 1959 was allowed to officiate in Grade I as he was obviously considered superior to the Petitioner by the appointing authority. The rule applies, in terms, and no exception can be taken thereto and the seniority of opposite party No. 2 cannot be questioned in the face of such a rule. The rule applies, in terms, and no exception can be taken thereto and the seniority of opposite party No. 2 cannot be questioned in the face of such a rule. Rule 52-A(1) formulates the principles as to in what circumstances the concerned Secretary in consultation with the Home Department can fix the seniority of assistants recruited from other offices, due regard being had to the length of permanent service under Government and pay at the time of appointment. Admittedly opposite party No. 2 has been in Government service from 1938 and admittedly he was holding the superior post of Grade I, though ex-cadre, white the Petitioner was working as a Lower Division Assistant and Grade II Assistant. Thus it was open to the appointing authority to declare opposite party No. 2 senior to the Petitioner and to allow him to officiate in Grade I. 8. On the aforesaid analysis the position is clear that all through opposite party No. 2 P.K. Patnaik was senior to the Petitioner and when both of them were promoted as Junior Head Assistants on 3-1-1962 opposite party No. 2 retained his seniority in relation to the Petitioner. When a question of promotion to a higher post comes, the governing principle is seniority-cum-merit. There are no materials on record that after 3-1-1962 opposite party No. 2 lost his efficiency and the Petitioner was considered to be better. The Petitioner cannot, therefore, have any grievance that opposite party No. 2 was promoted earlier as Senior Head Assistant. 9. It is to be emphasised that the Petitioner has no right to promotion. The right which any Government Officer has is the right to be considered for promotion to the next higher post when a vacancy arises-Santa Ram v. State of Rajasthan 1968 S.C.D. 9811, Opposite party No. 2 being senior and being considered more efficient, or at any rate not being considered less efficient than the Petitioner, the Petitioner cannot have any grievance against opposite party No. 2 being shown as senior to the Petitioner in the Gradation List prepared on 19-4-1963 or against his promotion as Senior Head Assistant. The Petitioner's application against opposite party No. 2 is accordingly dismissed as without substance, but there will be no order as to costs. 10. We would next examine the case of the Petitioner in relation to opposite party No. 3, B.B. Patnaik. The Petitioner's application against opposite party No. 2 is accordingly dismissed as without substance, but there will be no order as to costs. 10. We would next examine the case of the Petitioner in relation to opposite party No. 3, B.B. Patnaik. Opposite party No. 3 was appointed as a Lower Division Assistant on 7-4-1949 and worked in the States Section of the Home Department from 16-11-1949. He passed the Secretariat training class examination in 1955. He was promoted as a Grade I Assistant on 15-6-1950 as against the Petitioner being promoted to that rank on 5-5-1950. Both of them were confirmed as Grade II assistants on 24-1-1955. The history of service of both these officers right upto 24-1-1955 establishes beyond doubt that the Petitioner was all along senior to opposite party No. 3. On 26-8-1953 opposite party No. 3 was promoted as Grade I Assistant in an ex-cadre post. The Petitioner was promoted to that rank on 26-4-1954. The Petitioner's grievance is that promotion to an ex-cadre post should not have been taken into consideration in fixing the seniority of opposite party No. 3. Whatever that may be, both of them were confirmed as Grade I Assistants on 20-10-1957 and both of them were also promoted as Junior Head Assistants on 3-1-1962. On 19-4-1963 the gradation list was prepared, wherein the Petitioner was shown as junior to opposite party No. 3. The Petitioner's representation to the Superior authorities met with no success. The Petitioner contends that he is senior to opposite party No. 3 and the gradation list was contrary to the Rules, that it must be revised and he must be shown in the gradation list standing senior to opposite party No. 3. 11. This contention requires careful examination. In this connection, it should be noted that the principles regarding fixation of seniority were indicated in Resolution No. 11589-A dated 8-12-1947, of the Government of Orissa in the Home Department. The entire Resolution may be extracted. The 8th December 1947. The Provincial Government have had under consideration the question of adopting suitable principles in accordance with which seniority of promoted officers should be determined. The practice in this matter at present appears to vary in different departments. The entire Resolution may be extracted. The 8th December 1947. The Provincial Government have had under consideration the question of adopting suitable principles in accordance with which seniority of promoted officers should be determined. The practice in this matter at present appears to vary in different departments. The Provincial Government consider it to be a matter of great importance that uniform principles should be followed in this matter in regard to all services to which recruitment is made partly or wholly by promotions from Subordinate services. After a careful consideration of the matter, they are pleased to lay down the following principles in which the Joint Public Service Commission have concurred. 2. The usual criterion for promotion from subordinate services is seniority subject to the elimination of the unfit. The most meritorious officer is not necessarily the first to be promoted, the principle followed being that the senior most officer who is meritorious enough for promotion, is to be promoted. The principle, in other words, is that of two or more officers who are found to be fit for promotion at the same time the order of preference is usually determined in accordance with seniority, except of course in rare Cases where there may be good reasons to justify a departure from the principle in favour of a particular officer. 3. Government have been pleased to decide that where promotions from a subordinate service to a higher service are governed under the related recruitment rules by the principle explained in the preceding paragraph, the following procedure should be followed in determining the seniority inter se of the promoted officers. Suppose that there are four officers, A, B, C, D in a certain subordinate service, their order of seniority in service being: (i) A (ii) B (iii) C (iv) D In a particular year B, C and D are considered fit for promotion to the related Provincial Service and are, therefore, placed on the waiting list of officers suitable for promotion. Next year "A" is considered suitable for promotion but by that time "B" has already been confirmed in a permanent vacancy in the Provincial Service, "C" is officiating in a temporary vacancy in the Provincial Service, and "D" is still on the waiting list. The seniority of A" in these circumstances will be determined by placing him below "B" but above "C" and "D". The seniority of A" in these circumstances will be determined by placing him below "B" but above "C" and "D". The procedure contemplates that when an officer of the subordinate service is placed on the waiting list of officers of that service considered suitable for promotion to the next higher service, he takes his place in the waiting list above all officers who may already be there but who are junior to him in the parent service, but always below any officer who has already been confirmed in the higher service. The broad principle underlying the procedure laid down is that as between two officers both of whom are considered to be fit for promotion at any given time, but neither of whom has actually been granted substantive promotion, the order of preference should be determined in accordance with their seniority in the parent service. Doubtless the instructions contained in the aforesaid Resolution are no longer applicable as the same has been withdrawn by Political and Services Department Resolution No. 3821 General dated 25-3-1962. But the Petitioner's case is governed by the aforesaid Resolution dated 8-12-1947. Applying the Resolution, therefore, it must be held that both on 20-10-1957 and 3-1-1962 the Petitioner was senior to opposite party No. 3 in the gradation list. Though on 26-8-1957 opposite party No. 3 got promotion as Grade I Assistant, earlier than the Petitioner, both of them were confirmed as Grade I Assistants on the same date i.e. 20-10-1957. Applying the aforesaid A, B, C, D rule, on that day Petitioner must be declared to have been senior to opposite party No. 3. The same principles applies on 3-1-1902 ; on that date the Petitioner was senior to opposite party No. 3. 12. Government overlooked the aforesaid A, B, C, D rule and took into consideration the fact that opposite party No. 3 got promoted to Grade I earlier than the Petitioner. By entertaining such inadmissible consideration their ultimate conclusion was vitiated and the gradation list was prepared contrary to the Rule. The gradation list dated 19-4-1963 must accordingly be revised and the Petitioner must be indicated as being senior to opposite party No. 3 on that date. 13. By entertaining such inadmissible consideration their ultimate conclusion was vitiated and the gradation list was prepared contrary to the Rule. The gradation list dated 19-4-1963 must accordingly be revised and the Petitioner must be indicated as being senior to opposite party No. 3 on that date. 13. The next question for consideration is whether the claim of the Petitioner to have been superseded in respect of promotion to the post of Senior Head Assistant which was filled by opposite party No. 3 on 10-10-1964. The law on the subject has already been indicated. The Petitioner - or for the matter of that any Government Officer cannot claim promotion as a matter of right. Every officer has got only the right to be considered for promotion when the contingency arises. The contingency, in the present case, arose on 10-10-1964. The Petitioner's claim was overlooked not on the ground that he was found unfit for promotion but on the ground that he stood junior to opposite party No. 3 in the Gradation list. The Petitioner was therefore not considered for promotion on data prepared contrary to the Rules. We would accordingly quash the order of Government appointing opposite party No. 3 as Senior Head Assistant with effect from 10-10-1964. The High Court has no power to promote the Petitioner as Senior Head Assistant. The case must go back to the Government for reconsidering whether the Petitioner was fit to become a Senior Head Assistant on 10-10-1964 on the footing that in the revised gradation list he is to be treated is senior to opposite party No. 3. We have absolutely no doubt in our mind that the Petitioner would receive fair deal at the bands of the appropriate authorities. 14. In the result the writ application is dismissed so far as opposite party No. 2 P.K. Patnaik is concerned. It is allowed against opposite party. No. 3 B.B. Patnaik. A writ of mandamus would accordingly issue directing Government to revise the gradation list, as on 19-4-1963 placing Petitioner above opposite party No. 3 and to decide his promotion to the post of Senior Head Assistant which fell vacant on 10-10-1964 on the basis of the revised gradation list, and the relevant rules for promotion. There will be no order as to costs. R.N. Misra, J. 15. I agree. Final Result : Dismissed