JUDGMENT : J.K. Mohanty, J. - Petitioner, a diploma holder in Textile Technology, was appointed under opposite party No. 2 as Weaving Supervisor on 1st August, 1968. Opposite parties Nos. 3 to 5, according to the Petitioner, who are Matriculates having no diploma or certificate in Technical or Handloom Technology, joined in the inferior posts as Weaving Mistry etc. under opposite party No. 2 and were promoted as Non-technical Weaving Supervisors on 15th July, 1958, The post of Assistant Director of Textiles which is the next higher post is being filled up by promotion from amongst the Textile Supervisors according to their seniority. Petitioner claims to be senior to opposite parties 3 to 5 as he is a diploma holder and technically qualified man whereas opposite parties 3 to 5 have no technical qualifications and are mere matriculates. For this purpose he relied on a Circular of the Director of Textiles, Orissa bearing No. 9363(6)/XXXIV(E)/8/77 dated 12th July, 1973 (Annexure-1) issued to all the Assistant Directors of Textiles. The relevant portion of Annexure-1 is quoted below: There will always be two categories of staff in the non-gazetted cadre viz. (i) Diploma or Certificate Holders (2) Matriculation. Passing of Departmental Technical Test having experience for 3 years in Hand loom Industry being the pre-condition for promotion, the seniority of such, officer for the purpose of promotion to the cadre of Assistant Director of Textile Irrespective of their period of service in the cadre and position fixed in the gradation list has to be re-fixed basing on the date from which they are found eligible for promotion from the date of their passing of the Departmental Test. The diploma holders will, however, have their seniority according to their position fixed in the cadre. Basing on the aforesaid' Circular the gradation list of Weaving Supervisors was prepared by the Director of Textiles vide Annexure-2 wherein the Petitioner was placed in 3rd position in the list while opposite parties 3 to were placed in 9th, 10th and 11th positions respectively. Notwithstanding the above principles and the inter se gradation list in Annexure-2 of the Weaving Supervisors, opposite party No. 1, the State of Orissa represented by the Secretary to Govt. Industries Department, ignoring the seniority of Petitioner and even without considering his claim for promotion according to seniority over opposite parties Nos. Notwithstanding the above principles and the inter se gradation list in Annexure-2 of the Weaving Supervisors, opposite party No. 1, the State of Orissa represented by the Secretary to Govt. Industries Department, ignoring the seniority of Petitioner and even without considering his claim for promotion according to seniority over opposite parties Nos. 3 to 5, appointed opposite parties 3 and 5 on 24-2-1977 and opposite party No. 4 on 21-5-1977 as Assistant Director of Textiles in Class II of the State Service vide Annexures 3, 3/a and 3/b. According to the Petitioner, this is violative of Article 14 of the Constitution of India and the impugned annexures 3, 3/a and 3/b promoting opposite parties 3 to 5 as Assistant Directors of Textiles are unconstitutional and invalid in law. Petitioner thereafter represented to the Government on 11-7-1977 vide Annexure-4 which has not yet been disposed of in spite of repeated reminders. Therefore, the Petitioner has come up with this writ application to quash the impugned promotions of opposite parties Nos. 3 to 5 to the rank of Assistant Directors of Textiles and to Issue a writ of mandamus to opposite party No. 1 to consider the claim of the Petitioner for promotion before opposite parties 3 to 5 to the rank of Assistant Director of Textiles with effect from 24-2-1977, with all consequential benefits. Opposite party No. 1, the State of Orissa, in their counter have stated that the allegation of the Petitioner that his seniority was ignored and his case for promotion had not been considered is baseless. The case of the Petitioner was duly considered and he was not found suitable for promotion to the aforesaid Class II Gazetted post, so he was not promoted. Opposite parties Nos. 3 to 5 joined in the year 1958, as Matriculates and they completed Departmental test in Textile Technology held in between the years 1975 and 1976. Petitioner who is a diploma holder in textile technology joined as Weaving Supervisor in the year 1968. It was further averred that the Government in the Industries Department in their Resolution No. 18574-1 dated 28-9-1963 have prescribed the pre-requisites of a candidate (i.e. the Weaving Supervisor) to be eligible for consideration for promotion to the post of Assistant Director of Textiles in Class II (Gazetted). It was further averred that the Government in the Industries Department in their Resolution No. 18574-1 dated 28-9-1963 have prescribed the pre-requisites of a candidate (i.e. the Weaving Supervisor) to be eligible for consideration for promotion to the post of Assistant Director of Textiles in Class II (Gazetted). A copy of the aforesaid Resolution has been filed as Annexure-A. According to the aforesaid Resolution the candidates having the following qualifications and experience shall be eligible for consideration for promotion to the post of Assistant Director of Textiles. (1) Diploma or certificate in Textile Technology or passing of departmental test. (2) Matriculation. (3) A minimum experience of three years in Handloom industry in case of holder of diploma or certificate in Textile Technology and a minimum experience of five years in Handloom industry in other cases. From the aforesaid resolution it would be clear that a candidate having no diploma or certificate but who has completed departmental test in Textile Technology shall be eligible for consideration for promotion to the post of Assistant Director of Textiles. Thus passing of departmental test is one of the alternative prerequisites for promotion to the post of Assistant Director of Textiles. But the candidates will maintain their inter se seniority according to their date of joining as Weaving Supervisors. The circular (Annexure-I) on which the Petitioner relies was found to be inconsistent with the principles and spirit of Government Resolution vide Annexure-A and was also found basically wrong and inconsistent with the general principles of maintenance of seniority list. Accordingly, the Director of Textiles was instructed to change his circular. The Director of Textiles consequently issued revised circular on 24-9-1977 a copy of which is Annexure-B. Hence, Annexure-1 is no more in operation and stands substituted by Annexure-B. The gradation list furnished by the Petitioner in Annexure-2 is not a correct gradation list as the seniority was not refixed according to the date of passing of departmental test. Opposite parties 3 to 5 joined as Weaving Supervisors in the year 1958, but, the Petitioner joined as such in the year 1968. Thus opposite parties 3 to 5 were senior to the Petitioner in the gradation list of Weaving Supervisors. Consequent upon passing the departmental test opposite parties 3 to 5 became eligible for consideration for promotion to Class II. Thus opposite parties 3 to 5 were senior to the Petitioner in the gradation list of Weaving Supervisors. Consequent upon passing the departmental test opposite parties 3 to 5 became eligible for consideration for promotion to Class II. Thus, Petitioner and opposite parties 3 to 5 were considered for promotion to Class II along with other eligible candidates against the agencies created in February and May, 1977. The matter was referred to the Orissa Public Service Commission (hereinafter called the "Commission") for their recommendation on 3-5-1977 and 30-(sic)-1977. The Commission recommended the names of opposite parties 3 to 5 for promotion to Class II. The recommendation of the Commission was accepted by the Government after due consideration and opposite parties 3 to 5 were promoted to Class II. The Petitioner's case was duly considered along with other eligible candidates and after due consideration the Petitioner was found not suitable for promotion to Class II. The Petitioner's representation claiming promotion on the basis of his so-called seniority has no merit as the matter is subjudice and hence the representation awaits orders of this Court. The Petitioner has held a rejoinder to the above counter and has averred that there are two classes of Supervisors-one technical like the Petitioner and the other non-technical like the opposite parties 3 to 5 and each of the classes carries different scales of pay. So, it is not correct to place the case of the Petitioner along with opposite parties 3 to 5 for promotion. The Government Resolution in Annexure-A prescribed the alternative qualification for promotion in respect of non-gazetted officers to the post of Assistant Director of Textiles in Class II of the State Service. According to the same the Weaving Supervisors having no technical qualification like diploma and certificate in Textile Technology would not be considered for promotion before they are eligible for such consideration, the condition being passing of Matriculation Examination as well as the departmental test. The seniority of opposite parties 3 to 5 cannot be considered with reference only to the date of entry in service as non-technical Weaving Supervisors before they had acquired the permanency in the rank of regular Technical Supervisors in terms of Annexure-I. The circular in Annexure-1 is a positive supplement to the Government Resolution in Annexure-A which is binding on opposite party No. 1. It is further averred that the Government Circular dated 20-8-1977 (Annexure-6) and the Director's Circular dated 24-9-1977 (Annexure-B) following the Government Circular is mala fide and has been deliberately issued to regularise the irregularities, thus being in violation of the provisions of Article 14 of the Constitution of India. The Petitioner belongs to a higher category than opposite parties 3 to 5 and should have been considered fit for promotion. In reply to the rejoinder filed by the Petitioner opposite party No. 1 reiterated the earlier stand that the Petitioner was duly considered and his name was sent to the Commission, but the Commission did not recommend his name. It has further been stated that opposite parties 3 to 5 were Weaving Supervisors (technical posts) prior to the Petitioner. Prior to 1-1-1974 the post of Weaving Supervisor was carrying the pay scale of Rs. 153-300/-. On the recommendation of the Pay Commission two scales of pay - one on Rs. 375-750/- for diploma holders and the other on Rs. 370-570/- for non-diploma holders-have' been prescribed with effect from 1-1-1974. Although two different scales of pay have been prescribed for the Weaving Supervisors, they do not form separate cadres and administratively there is no distinction between the two groups. The cadre is one and the sa roe. The jobs or the duties of the Weaving Supervisors in either scales of pay are equal and, they may be transferred to the stations of each other. The Circular (Annexure-1) issued by the Director of Textiles was merely an executive instruct ion and has no overriding effect on the Govt. Resolution dated 28-9-1963 (Annexure-A) and it is not a supplement to the Government Resolution in a Annexure-A. 2. The first point urged by Mr. Rout. the learned Counsel for the Petitioner, is that the Petitioner is a technically qualified person having diploma in textile technology whereas opposite parties 3 to 5 are mere matriculates, so the Petitioners and opposite parties 3 to 5 cannot be treated as equals. The Resolution in Annexure-4 was issued mainly for the purpose of creating incentives among the non-gazetted officers who have no technical qualification. As per Government Resolution (Annexure-A) passing of departmental test with 5 years' experience is equivalent to holding a diploma or certificate in textile technology with 3 years' experience for consideration for promotion to Class II. The Resolution in Annexure-4 was issued mainly for the purpose of creating incentives among the non-gazetted officers who have no technical qualification. As per Government Resolution (Annexure-A) passing of departmental test with 5 years' experience is equivalent to holding a diploma or certificate in textile technology with 3 years' experience for consideration for promotion to Class II. Opposite party No. 3 and opposite parties 4 and 5 passed the departmental test in the years 1975 and 1976 respectively and thus they became eligible for promotion to Class II in 1980 and 1981 respectively when they completed 5 years' of experience in the rank of Weaving Supervisors. Petitioner was not required to pass the departmental test and he having joined service as Weaving Supervisor in 1968 became eligible for promotion to Class II in the year 1971 when he completed three years' of experience. Thus, he is much senior to opposite parties 3 to 5. In Annexure-2 which is a gradation list prepared as per the principles laid down in Annexure-I, the Circular issued by the Director of Textiles' the Petitioner has been rightly considered as senior to opposite parties 3 to 5. 3. On the other hand, the learned Government Advocate submitted that Annexure-A only prescribes the pre-requisites of a candidate (i.e., Weaving Supervisor) to be eligible for consideration for promotion to the post of Assistant Director of Textiles in Class II (Gazetted) and passing of departmental test has been made one of the alternative pre-requisites for promotion to Class II. The diploma holders are not required to pass the departmental test and on completion of 3 years' of experience they became eligible. But Annexure-A, the Government Resolution, does not provide that the diploma holders are automatically senior to non-diploma holders even if they are appointed subsequent to the appointment of non-diploma holders. Annexure-A provides only eligibility of a candidate for consideration to the post of Assistant Director of Textiles in Class II. Annexure-A is a Government Resolution of the year 1963 while Annexure-1, the Circular of the Director of Textiles, is of the year 1973. Annexure-I is not in conformity with the Government Resolution and it appears that it has been issued on a misreading of Government Resolution in Annexure-A or without looking to the same. Annexure-A is a Government Resolution of the year 1963 while Annexure-1, the Circular of the Director of Textiles, is of the year 1973. Annexure-I is not in conformity with the Government Resolution and it appears that it has been issued on a misreading of Government Resolution in Annexure-A or without looking to the same. Thus Annexure-I, as rightly submitted by the learned Government Advocate, cannot override the Government Resolution in Annexure-A and therefore, it has been ultimately withdrawn vide Annexure-B in the year 1977. No other materials have been produced before us so as to come to a conclusion that the diploma holders shall become automatically senior to non-diploma holders, even if they are appointed subsequent to the appointment of the non-diploma holders. There is nothing to show that those officers who have diploma or certificate in textile technology have been considered as having a higher rank than the other Weaving Supervisors who have no diploma or certificate in textile technology. 4. The next point urged by the learned Counsel for the Petitioner is that the Petitioner is getting higher scale of pay than opposite parties 3 to 5. So, his rank is higher than opposite parties 3 to 5. He cited S.K. Srivastava v. Union of India and Ors. 1971 (2) S.L.R. 453 in support of his contention. In the above case, it has been held: The Government has always applied the criterion of pay to distinguish one class or grade of service or post from another. In fixing the pay of a particular post or the scale of pay of a particular service, the Government considers the status and responsibility attached to a particular post or class of service. xx xx xx It would not be advisable, therefore, for the Courts to ignore the classification made by the Government as indicated by the emoluments fixed by the Government and try to determine afresh the rank of a particular post by having regard to considerations other than the pay specially because these considerations have already been taken into account by the Government in fixing the payor the pay-scale of particular post. But in this case, as pointed out by the learned Government Advocate the Petitioner has not produced any material to show that he was receiving higher pay than the other Weaving Supervisors including opposite parties 3 to 5 on the date of appointment. But in this case, as pointed out by the learned Government Advocate the Petitioner has not produced any material to show that he was receiving higher pay than the other Weaving Supervisors including opposite parties 3 to 5 on the date of appointment. On the other hand it has been categorically asserted that the Petitioner and the opposite parties 3 to 5 were Weaving Supervisors. Prior to 1-1-1974 the post of Weaving Supervisors was carrying the pay scale of Rs. 150-300/-. On the recommendation of the Pay Committee two scales of pay-one on Rs. 370-570/- for non-diploma holders and the other on Rs. 375-750/- for diploma holders have been prescribed with effect from 1-1-1974. Although two different scales of pay have been prescribed for the Weaving Supervisors, they do not form separate cadres and the post is one and the same. This is also supported by relevant provisions of the Orissa Revised Scales of Pay Rules published in the Extraordinary Gazette of the Government in the Finance Department in Notification No. 652/74 dated the 2nd September, 1974, which is quoted below for reference: Director of Textiles, Orissa. I SI. Name of post Existing scale Revised scale No. of pay of pay. xx xx xx xx 25. Weaving Supervisor 150-300/- 375.750/- (For Diploma holder). 370.570/- (For others). Nothing has been produced before us to show that the Weaving Supervisors who are diploma holders have been given higher scales of pay at the time of appointment and it clearly appears that all the Weaving Supervisors belong to one and the same rank, though some incentives have been given to the diploma holders as recommended by the Pay Commission from 1974. Thus, on a consideration of the above facts, we are of the view that the point urged by the learned Counsel for the Petitioner has no merit. 5. The next contention urged on behalf of the Petitioner is that the Petitioner's case has not at all been considered by opposite party No. 1 and the Commission. Opposite party No. 1 his counter has categorically stated that the Petitioner and opposite party Nos. 3 to 5 were considered for promotion to Class II along with the other Weaving Supervisors against the vacancies created in February and May, 1977. Opposite party No. 1 his counter has categorically stated that the Petitioner and opposite party Nos. 3 to 5 were considered for promotion to Class II along with the other Weaving Supervisors against the vacancies created in February and May, 1977. The matter was referred to the Orissa Public Service Commission for their recommendation on 3-5-1977 and 30-5-1977, The Orissa Public Service Commission in their letter No. 2064, dated 5-7-1977 recommended the names of the opposite parties 3 to 5 for appointment as Assistant Director of Textiles by way of promotion. The recommendation of the Orissa Public Service Commission was accepted by the Government and opposite parties 3 to 5 were promoted to Class II. So, the above facts show that the Petitioner's case has been considered. There is nothing on record to show that his case has been overlooked or any illegality has been committed in considering the case of the Petitioner for promotion. Moreover, the Commission has not been made a party. 6. On a consideration of the facts and circumstances of the case we are of the view that the Petitioner has not been able to establish his case. The representations filed by the Petitioner before the Government in Annexure-4, 4/a and 4/b are still pending for consideration regarding his promotion on the basis of his seniority since July 1977. It is stated by opposite party No. 1 in counter that the representations could not be disposed of as the matter is subjudice before the Court. We, however, direct the opposite party No. 1 that the representations of the Petitioner be disposed of within three months from today on its own merit without being influenced by any of the observations made in this case. 7. In the result, therefore, the writ application is dismissed. There shall be no order as to costs. B.K. Behera, J. 8. I agree. 9. The Petitioner, the opposite party Nos. 3 to 5 and other eligible employees belonging to the same cadre, some of whom were diploma-holders and some were not, had duly been considered for promotion as Assistant Directors of Textiles. On a consideration of the service records and their inter se seniority and merits and In consultation with the Commission and on its recommendations, the State Government promoted the opposite party Nos. 3 to 5 to Class-II and the Petitioner was found unsuitable for promotion. 10. On a consideration of the service records and their inter se seniority and merits and In consultation with the Commission and on its recommendations, the State Government promoted the opposite party Nos. 3 to 5 to Class-II and the Petitioner was found unsuitable for promotion. 10. A civil servant has a right to be considered for promotion, but he is not entitled to be promoted. If the State Government has not been satisfied with the performance of the Petitioner for which he has been considered unsuitable for promotion, this Court is not to sit in appeal over that decision unless it is found to be the outcome at mala fides. In the instant case, it has not been shown to be so. The Petitioner has not been discriminated against. Final Result : Dismissed