JUDGMENT : G.B. Patnaik, J. - The petitioner who is an employee under the Orissa State Road Transport Corporation (opposite party No. 2) has assailed the promotion of opposite party No. 4 to the post of Deputy General Manager inter alia on the ground that non-consideration of petitioner's case while promoting opposite party No. 4 violates Articles 14 and 16 of the Constitution and in view of the provisions contained in the Orissa Reservation of Vacancies in Posts and Services (For Scheduled Castes and Scheduled Tribes) Act 1975 (Orissa Act 38 of 1975) (hereinafter referred to as the "Reservation Act"), it is the petitioner who being a Scheduled Caste was alone entitled to be promoted and not opposite party No. 4 who is a general candidate. 2. The petitioner asserts that he joined the post of Assistant Transport Manager under the erstwhile State Transport Services on 2nd September 1966 and continued as such till May, 1974, when the Corporation was established and took over the management of the existing State Transport Services along with its employees. The Corporation framed a set of rules regulating the conditions of service of its employees in 1978, called the Orissa State Road Transport Corporation Employees (Classification, Recruitment and Conditions of Service) Regulations, 1978 (hereinafter referred to as the "Regulations"). Regulation 61(1) (d) of the Regulations read with Section 2(g) of the Reservation Act makes the provisions of the Reservation Act applicable to Corporation employees. The petitioner was promoted to the post of District Transport Manager on 18th October 1982 and the next promotional post is the Divisional Manager which was later on re-designated as Deputy General Manager. It is the petitioner's further case that when 2 posts of Deputy General Manager fell vacant in 1983 petitioner's case was not considered and yet non-Scheduled candidates were promoted ignoring the provisions of the Reservation Act, but the petitioner, however, does not assail the said promotions since those promotees have retired in the meantime. Thereafter, in 1985, another post of Divisional Manager fell vacant which was later on re-designated as Deputy General Manager. Though under the Act and the Regulations, the petitioner alone was entitled to be promoted to the said post, yet ignoring the petitioner's case for promotion, the opposite parties promoted opposite party No. 4. Thereafter, in 1985, another post of Divisional Manager fell vacant which was later on re-designated as Deputy General Manager. Though under the Act and the Regulations, the petitioner alone was entitled to be promoted to the said post, yet ignoring the petitioner's case for promotion, the opposite parties promoted opposite party No. 4. Initially the promotion of opposite Party No. 4 was made on ad hoc basic as per Annexure-1 and later on the Selection Board approved the said promotion as per Annexure-2 and the said opposite party No. 4 is continuing in the promotional post. The petitioner, therefore, prayed for quashing of the promotion of opposite party No. 4 and issuing a mandamus to the opposite parties to consider the case of promotion of the petitioner in view of the provisions of the Reservation Act and the Regulations. 3. The stand of the Corporation in the counter affidavit is that the post to which opposite party No. 4 was promoted is designated as General Manager, Planning and Statistics, and for such a post a Statistician is best suited and qualified. Since opposite party No. 4 was pre-eminently suitable and petitioner was not at all suitable for the said post, opposite party No. 4 was promoted and petitioner's case had not been considered. Though such a stand had been taken in the counter affidavit, yet at the time of hearing of the case, the learned counsel for the Corporation-opposite party No. 2 does not press the said submission and, in our view, rightly. The further stand of the Corporation in the counter affidavit is that the petitioner did not come within the zone of consideration as required under the Service Regulations and, therefore, his case was not considered. It is not disputed that the Reservation Act applies to the employees and posts under the Corporation. Opposite party No. 4 has also filed a counter affidavit and the stand taken by him is that the promotion being based on merit-cum-seniority and to such promotional post the Reservation Act having no application and opposite party No. 4 having been found to be more meritorious having the requisite qualification for the post in question, there has been no infraction of Article 14 or Article 16 of the Constitution and, therefore, the petitioner cannot assail the same. The petitioner has filed a rejoinder affidavit more or less reiterating his earlier stand. 4. The petitioner has filed a rejoinder affidavit more or less reiterating his earlier stand. 4. In view of the rival stands of the parties, the questions which arise for consideration are:- (i) Is the post to which opposite party No. 4 was promoted under Annexures 1 and 2 is a post in selection category or selection grade on which the further question as to the criteria for promotion depends? (ii) whether the petitioner has a right to be promoted irrespective of his merit in view of the provisions of the Reservation Act? and (iii) whether the stand of the opposite parties that petitioner not having come within the zone of consideration was not considered at all for promotion, is sustainable in law? 5. In order to appreciate the points formulated, it is necessary to quote the relevant provisions of the Regulations as well as the Reservation Act. Regulation 61 deals with promotion. The said Regulation 61 so fas as relevant is quoted heieinbelow:- "61. Promotion:- (i) The competent appointing authority may, subject to the qualification prescribed in Appendix-IV and as hereinafter provided, grant departmental promotions, provided that promotions to:- (a) Class-I and II posts are recommended by the State Transport Selection Board and approved by the Corporation. (b) Class-III posts are recommended by the concerned Divisional Selection Committee or J a Central Office Selection Committee as the case may be. (c) If the calculation of the percentage basis indicated in the Appendix-IV results in mixed fraction, the fraction should be rounded oft to the nearest whole number. (d) The number of promotion vacancies to be reserved for Scheduled Caste, Scheduled Tribe candidates and the manner of filling up of the same shall be such as prescribed by State Government in this regard from time to time. (ii) No member of a service or a class of service shall be eligible for promotion from the category in which he is appointed in service unless he has satisfactorily completed his probation in that category. (iii) (a) Promotion in a service or class into selection category or to a selection grade shall be made on the grounds of merit with due regard to seniority. (b) Such selection to selection grade shall be limited to the employees of the service or class of service who have put in continuous service of not less than 5 years in a particular grade or class of post. (b) Such selection to selection grade shall be limited to the employees of the service or class of service who have put in continuous service of not less than 5 years in a particular grade or class of post. (c) All other promotions shall, subject to the provisions relating suspension of lien, be made in accordance with seniority-cum-merit unless- (i) the promotion of a member has been withheld as a penalty, or (ii) a member is given special promotion for conspicuous merit and ability." Section 2 (g) of the Reservation Act defines "State" to include the Government and the Legislature of the State of Orissa and all local or other authorities within the State or under the control of the State Government. Section 4 (1) of the Act provides that the vacancies reserved for the Secheduled Castes and Scheduled Tribes shall not be filled up by candidates not belonging to Scheduled Castes and Scheduled Tribes except as otherwise provided under the Act. Sub-section (2) of Section 4 says that the reservation of vacancies in posts and services shall be at such percentage of the total number of vacancies as the State Government may from time to time by order determine. By Amending Act 9 of 1982, a proviso has been added to the said sub-section which says that there shall be no reservation of vacancies to be filled up by promotion on certain contingencies. Section 4 together with the provisos thereof is extracted hereunder in extenso:- "4. Reservation and the percentage thereof: - (1) Except as otherwise provided in this Act, the vacancies reserved for the Scheduled Castes and the Scheduled Tribes shall not be filled up by candidates not belonging to the Scheduled Castes and Scheduled Tribes. Section 4 together with the provisos thereof is extracted hereunder in extenso:- "4. Reservation and the percentage thereof: - (1) Except as otherwise provided in this Act, the vacancies reserved for the Scheduled Castes and the Scheduled Tribes shall not be filled up by candidates not belonging to the Scheduled Castes and Scheduled Tribes. (2) The reservation of vacancies in posts and services shall be at such percentage of the total number of vacancies as the State Government may, from time to time, by order determine: Provided that the percentage so determined shall in no case be less than the percentage of the persons belonging to the Scheduled Castes or the Scheduled Tribes as the case may be in the total population of the State: Provided further that there shall be no reservation of vacancies to be filled up by promotion where- (a) the element of direct recruitment in the grade or cadre in which the vacancies have occured is more than sixty-six and two-third per cent; (b) the vacancies have occurred in Class-I posts and are to be filled up by promotion through limited departmental examination; or (c) the vacancies have occurred in Class-I posts which are above the lowest rung thereof, and are to be filled up on the basis of selection. Explanation-The expression 'population' means the population as ascertained at the last census for which the relevant figures have been published". Section 7 of the Act provides the carry-forward rule, but the second proviso to the said section which came into the statute book by Orissa Act 9 of 1982 says that the provisions of the said section shall not apply to reserved vacancies to be filled up by promotion on the basis of selection where such promotion is to be made from Class-11 posts to Class-I posts and from posts in the lowest rung of Class-I. Section 11-A(1) says that there shall be no zone of consideration in respect of promotions based on seniority subject to fitness. Sub-section (2) (a) thereof, however, provides that there shall be a separate zone of consideration for Scheduled Caste and Scheduled Tribe candidates in respect of promotions to Class-III posts and within Class-III posts and there shall be a common zone of consideration in respect of promotions other than those specified in clause (a) and the extent of zone of consideration shall be as may be prescribed. Section 11-A of the Act is extracted hereunder in extenso:- 11-A.(1) Where promotion is to be made on the basis of selection, the procedure for filling up of the reserved vacancies shall be as may be prescribed and the number of reserved vacancies will be determined on the basis of the reserved points shown in the roster : maintained u/s 5. (2) Except the promotions mentioned in Sub-section (3) of Section 10- (a) There shall be a separate zone of consideration for Scheduled Castes and Scheduled Tribes candidates in respect of promotions to Class-III posts and within Class-III posts: (b) There shall be a common zone of consideration in respect of promotions other than those specified in clause (a). (c) The extent of the zone of consideration shall be as may be prescribed". The word "prescribed" has been defined in Section 2 (a) of the Act to mean prescribed by rules made under the Act. Rule 5 (2) of the Orissa Reservation of Vacancies in Posts and Services (For Scheduled Castes and Scheduled Tribes) Rules, 1976 (hereinafter referred to as the "Reservation Rules") provides that where a promotion is to be made on the basis of seniority subject to fitness, the vacancies reserved for Scheduled Castes and Scheduled Tribes and remaining unfilled on the ground of non-availability of candidates belonging to those communities shall not be filled up without being de-reserved by the competent authority by taking orders of the next higher authority. Rule 5 (3) of the Reservation Rules provides that in case of promotion based on selection from Class-Ill posts to Class-II posts, within Class-II posts, from Class-II posts to Class-I posts and from posts in the lowest rung of Class-I, the reserved vacancies remaining unfilled, if any, shall be filled up by general candidates. Rule 7 of the Reservation Rules provides the procedure when promotion is based on selection, Rule 7 (a)(1) indicates that promotion from Class-Ill to Class-II, within Class-II, from Class-II to Class-I and within Class-I shall be made on the basis of a selection as against vacancies reserved for Scheduled Tribes and Scheduled Castes only from those Scheduled Tribe and Scheduled Caste officers who are within the common zone of consideration numbering five times the estimated number of vacancies. These are all the provisions with which we are concerned in the present case. 6. These are all the provisions with which we are concerned in the present case. 6. The first question that has to be answered now is as to which class the post of Deputy General Manager belongs. Regulation 49 indicates that the Services of the Corporation shall be classified into Class-I, Class-II and Class-IV and Class-I service shall consist of all the posts or category of posts specified in Part-A of Appendix-III and such other posts as the Corporation may hereafter so declare: Part-A of Appendix-Ill indicates that Class-I posts are posts of Deputy General Manager, Planning Officer, Divisional Manager and Works Engineer. Thus the post to which opposite party No. 4 was promoted is a Class-I post. Regulation 53(a) prescribes the age, qualification and experience for appointment and the authorities competent to so appoint to be specified in Appendix-IV. Appendix-IV indicates that a post of Divisional Manager has to be filled up by promotion from amongst District Transport Managers and Statisticians. The posts of Statistician as well as the posts of District Transport Manager are Class-II posts, as would appear from Appendix-III, Part-B. Thus there is no manner of doubt that the promotion in the present case is one from Class-II to Class-I. In view of the second provio to Sub-section (2) of Section 4 of the Reservation Act, more particularly, Clauses (b) and (c) of the said second proviso, there cannot be any case of reservation for filling up the posts of Divisional Manager by promotion and, therefore, the petitioner cannot claim any right on that basis. 7. Even if it is assumed that there is reservation under the Act for the promotional posts of, Divisional Manager, the next question that comes up for consideration is Section 11-A of the Act. Under the said section, where promotion is based on seniority subject to fitness, there would be no question of zone of consideration as contained in Section 11-A (1) of the Act. But if the promotion is otherwise, then the extent of zone of consideration shall be as may be prescribed under Rule 7(a) (i) which provides the zone of consideration to be five times the estimated number of vacancies. This being the legal provision, it has to be determined as to what is the criterion for promotion to the post of Divisional Manager re-designated as Deputy General Manager. According to Mr. This being the legal provision, it has to be determined as to what is the criterion for promotion to the post of Divisional Manager re-designated as Deputy General Manager. According to Mr. Choudhury, the learned counsel for the petitioner, promotion to the post of Divisional Manager is made on the basis of seniority subject to fitness and, therefore, there should be no zone of consideration as provided in Section 11-A(1) of the Act; whereas according to Mr. Patnaik, the learned counsel for the Corporation, promotion to the said post is made on the basis of merit with due regard to seniority and not on the basis of seniority subject to fitness. The petitioner in his written notes of argument has conceded in the petition that the promotion to Class II post is made on the basis of merit with due regard to seniority. Regulation 61 (iii) (a) provides that promotion in a service or class into selection category or to a selection grade shall be made on the ground of merit with due regard to seniority. Regulation 61(iii) (c) indicates that all other promotions shall be made in accordance with seniority-cum-merit. The two concepts, namely, "merit with due regard to seniority" used in Regulation 61(iii)(a) and "seniority-cum-merit" used in Regulation 61(iii)(c) cannot have the same meaning and must bear distinct meanings. The petitioner's counsel contends that the expression "merit with due regard to seniority" used in Regulation 61(iii)(a) is the same thing as "seniority subject to fitness" used in Section 11-A(1) of the Act. Such a contention on the face of it has to be rejected. The two expressions, "merit with due regard to seniority" and "seniority-cum-merit" have received judicial interpretation in several cases and broadly speaking, where the criterion for promotion is merit with due regard to seniority, 'merit' becomes prime consideration though seniority cannot be fully overlooked. But where the criterion for promotion is seniority-cum-merit, seniority is of prime consideration and comparative merit has to be assessed if the lengths of service of two rival candidates are more or less equal. The expressions "seniority subject to fitness" used in Section 11-A (1) of the Act indicates that promotion is based on seniority unless the senior man is found to be unfit. The expressions "seniority subject to fitness" used in Section 11-A (1) of the Act indicates that promotion is based on seniority unless the senior man is found to be unfit. The expression "seniority-cum-fitness" was considered by a Full Bench of the Himachal Pradesh High Court in the case of Shri Hari Datt Kainthia, Chief Judicial Magistrate and Anr. v. The State of Himachal Pradesh and ors. 1974(1)S.L.R. 208(F.B.) and it was held that the said principle implied that senior person unless found unfit should get the promotion. The expression "seniority-cum-merit" came up for consideration before the Supreme Court in the case of State of Mysore v. C.R.Seshadri and Ors. ( 1974 LLJ 301 ) and it was held that if the criterion for promotion was one of seniority-cum-merit, comparative merit may have to be assessed if the length of service was equal or an outstanding junior was available for promotion. The expression "merit with due regard to seniority" came up for consideration before a Full Bench of the Patna High Court in the case N.P. Mathur and Ors. v. State of Bihar and ors. 1971(1) S.L.R. 335 (F.B.) where their Lordships held:- ".....An overall picture has to be taken and if, in the opinion of the appointing authority, a particular officer possesses merit superior to that of his seniors then irrespective of his position in the gradation list the selection for appointment has to fall on him..." It was of course stated in the very same case:- ".....Of course, the phrase 'with regard to seniority' can only mean that seniority cannot be ignored. Merit being equal or balanced or not decisively in favour of a junior incumbent, selection has to be made in favour of a senior one". The stand of the opposite party-Corporation is that the promotion to the post of Divisional Manager is made on the basis of merit-cum-seniority, that is to say, merit is of prime consideration. Not only Regulation 61 (iii)(a) referred to earlier supports the stand but also we are of the opinion that when a promotion is made to a higher post in a service carrying higher responsibility, merit should be of prime consideration and such a principle would be in the interests of the Service and the society as well. Not only Regulation 61 (iii)(a) referred to earlier supports the stand but also we are of the opinion that when a promotion is made to a higher post in a service carrying higher responsibility, merit should be of prime consideration and such a principle would be in the interests of the Service and the society as well. That being so, we hold that the promotion to the post of Divisional Manager would not come within the ambit of Section 11-A(1) of the Act, as contended by the petitioner and, therefore, the petitioner cannot claim promotion unless he comes within the zone of consideration. 8. The positive stand of the opposite parties in their counter affidavit is that in the vacancy in which opposite party no.4 was promoted, the petitioner could not be considered along with other District Transport Managers since he did not come within the zone of consideration. This assertion made in paragraph-10 of the counter affidavit has not been refuted by the petitioner though he had filed subsequent rejoinder. On the other hand, he has taken a positive stand that the case is covered by Section 11-A(1) of the Reservation Act. In view of our conclusion that Section 11-A(l) of the Act does not apply to the present case since the promotion is on the basis of merit with due regard to seniority and since the petitioner did not come within the zone of consideration, the question of his case being considered for promotion does not arise and consequently, there has been no infraction of either Article 14 or Article 16 of the Constitution, as urged by the petitioner. 9. In the premises, as aforesaid, we hold that (a) the post to which opposite party No. 4 was promoted under Annexures 1 and 2 is a post which was to be filled up by the process of selection on the basis of merit with due regard to seniority; (b) to such promotional post, and in view of the criteria for promotion, the petitioner cannot claim to be promoted as of right since Section 11-A(l) of the Act has no application; and (c) the petitioner having not come within the zone of consideration was not entitled to be considered for promotion. Consequently, we do not find any legal or constitutional infirmity in the promotion of opposite party No. 4. Consequently, we do not find any legal or constitutional infirmity in the promotion of opposite party No. 4. The writ application accordingly fails and is dismissed, but there will be no order as to costs. J.M. Mahapatra, J. 5. I agree. Final Result : Dismissed