M. R. CALLA, J. ( 1 ) ). This petition was tiled by the petitioner in the year 1982 on 5th July 1982. During the pendency of this petition petitioner Mr. M. M. Chhaya sought voluntary retirement on 1-2-1983. ( 2 ) ). The relief sought for by the petitioner in this petition is for promotion to the post of Deputy Director of Fisheries from 30th December 1977 and for the promotion to the post of Deputy Commissioner from May 1982. The promotion orders of respondents No. 3 and 4 as Deputy Director of Fisheries and as Deputy Commissioner of Fisheries have also been sought to be quashed and set aside. ( 3 ) ). The petitioner in this petition was promoted to the post of Assistant Director of Fisheries in terms of the order dated 19th June 1971 Annexure C to this petition. By the very same order one Shri P. K. R. Paniker who is respondent No. 3 in this petition was also promoted as such. Respondent No. 4 Mr. Menon was subsequently promoted as Assistant Director in the year 1974. ( 4 ) ). Appointments to the post of Assistant Director of Fisheries in accordance with the relevant recruitment rules which are annexed as Annexure D to this petition are required to be made by promotion as well as by direct recruitment has to be placed on probation for a period of two years during which he is required to pass the departmental examination as per the prescribed rules and similarly the candidate appointed by promotion is also required to pass the departmental examination as per rules within the prescribed. The selected candidate has to pass the Hindi and/or Gujarati Examination according to the prescribed rules. That while the petitioner was working as Assistant Director in terms of the order dated 17th June 1971 as aforesaid on 16th December 1974 the applications were invited for making appointments by direct recruitment on the post of Deputy Director on 6th December 1974 and on the basis of the selection held by the Gujarat Public Service Commission by the Govt. Resolution dated 9th April 1975 the petitioner herein was appointed as Asstt. Director of Fisheries by direct recruitment on probation for a period of two years on the conditions mentioned therein. By the very same resolution dated 9th April 1975 Mr. P. K. R. Paniker and Mr. Resolution dated 9th April 1975 the petitioner herein was appointed as Asstt. Director of Fisheries by direct recruitment on probation for a period of two years on the conditions mentioned therein. By the very same resolution dated 9th April 1975 Mr. P. K. R. Paniker and Mr. R. B. Menon that is respondents No. 3 and 4 herein were also appointed as such on the basis of the selection through the direct recruitment held by the Gujarat Public Service Commission. That on 27th April 1978 a notification was issued continuing the petitioner as such on long terms basis and on 30th Dec. 1977 an order had hen passed promoting Mr. Paniker and Mr. Menon as Dy. Directors in terms of order at Annexure E to this petition. The petitioner herein represented on 28th April 1978 and again in July 1978 and thereafter on 19th October 1978 a Resolution was issued by the Government of Gujarat which shows that the promotion of Mr. Paniker and Mr. Menon respondents No. 3 and 4 in this petition were held to be beyond the competence of the Commissioner but the same were sought to be regularised subject to the condition that the promotions as ordered on 30th December 1977 will be treated as purely temporary and on ad hoc basis and are subject to the finalisation of the seniority position in the Respective cadres. A copy of this resolution dated 19th October 1978 is annexed as Annex. F to this petition. Thereafter the petitioner Mr. Chhaya was promoted as Deputy Director in November 1978 and while he was working as Deputy Director respondents No. 3 and 4 were further promoted as Deputy Commissioner in May 1982 by the Resolution Annexure H dated 1st May 1982 to this petition. The petitioner Mr. M. M. Chhaya submitted representation in June 1982 and thereafter filed this petition before this Court on 5th July 1982 and during the pendency of this petition he voluntarily retired on 1st February 1983 4 The petitioner claims promotion to the post of Deputy Director from 30th December 1977 instead of December 1978 and as Deputy Commissioner from 1 ( 5 ) ). The petitioner has challenged the promotions accorded to respondents No. 3 and 4 on the following grounds: it is alleged that the petitioner and respondent No. 3 Mr. The petitioner has challenged the promotions accorded to respondents No. 3 and 4 on the following grounds: it is alleged that the petitioner and respondent No. 3 Mr. P. K. R. Paniker were working as Superintendents prior to 1971 and both of them were promoted for the first time as Asstt. Director in the year 1971 by the Notification dated 17th June 1971 and that as a Superintendent of Fisheries the petitioner was senior to respondent No. 3 Mr. P. K. R. Paniker. The petitioner as well as respondent No. 3 were promoted as Assistant Director of Fisheries in the year 1971 as aforesaid while respondent No. 4 Mr. Menon was promoted as Assistant Director of Fisheries later on that is in the year 1874. Thus the petitioner contends that he is senior to Mr. Menon not only as Superintendent but also on the post of Assistant Director being appointed as such on 17th June 1971 as against the dale of 21st May 1974 in the case of Mr. Menon. ( 6 ) ). Even if the order of appointment as Assistant Director by direct recruitment is taken into consideration the petitioners contention is that he was placed at Sr. No. 2 in the order of merit by the Gujarat Public Service Commission whereas Mr. Menon was at Sr. No. 4 in the select list prepared by the Commission and accordingly the names were shown in the Resolution Annexure-D dated 9th April 1975. ( 7 ) ). It is the case of the petitioner that at the time when the order was passed in favour of respondents No. 3 and 4 promoting them as Deputy Directors on 30th December 1977 instead of promoting respondent No. 4 the petitioner should have been appointed as Deputy Director of Fisheries because he was senior to respondent No. 4 Mr. Menon. Therefore one out of the two posts of Dy. Director should have been made available to him and he should have been promoted to the said post. ( 8 ) ). It has been submitted that respondents No. 3 and 4 were appointed on probation for a period of two years on the terms and conditions mentioned in the order dated 9th April 1975. Director should have been made available to him and he should have been promoted to the said post. ( 8 ) ). It has been submitted that respondents No. 3 and 4 were appointed on probation for a period of two years on the terms and conditions mentioned in the order dated 9th April 1975. According to condition-2 of that order respondents No. 3 and 4 were required to appear in Hindi and Gujarati Examination as well as the departmental examination prescribed for the Gazetted Officers of the Fisheries Department and according to the Rules failure to pass such examination was to render them liable for the consequences according to the rules. It is submitted that respondents No. 3 and 4 did not pass the departmental examination during the period of their probation and that so far as the petitioner is aware they had not passed both Hindi and Gujarati Examinations as per the Conditions of the Order by which they were appointed as Asstt. Directors whereas the petitioner had passed the same as also the departmental examination and consequently the order dated 27th April 1978 was passed in favour of the petitioner recording that he had satisfactorily completed the period of probation from 1971 and he may continue to officiate in the said post in the said service on the long terms basis. On these premises it was contended by the petitioner that he has preferential claim for promotion to the posts of Deputy Director from 30 December 1977 vis-a-vis respondents No. 3 and 4 and similarly he has preferential claim for promotion to the post of Deputy Commissioner from May 1982. ( 9 ) ). It was therefore contended that the respondents No. 3 and 4 could not be preferred over the petitioner for the purpose of appointment on the post of Deputy Director of Fisheries and therefore for the post of Deputy Commissioner of Fisheries and yet the petitioners right of consideration of his candidature for the aforesaid two posts was ignored and respondents No. 3 and 4 were appointed as Deputy Director and thereafter Deputy Commissioner in violation of the petitioners fundamental rights under Articles 14 and 16 of the Constitution of India. Therefore appointments of respondents No. 3 and 4 as Deputy Directors and Deputy Commissioners deserves to be quashed and set aside and the petitioner deserves to be promoted as such from the date on which respondents No. 3 and 4 were promoted. ( 10 ) ). No return whatsoever has been filed on behalf of the respondents despite the pendency of this petition for a period over 13 years by now. Therefore the facts stated by the petitioner in this petition remained uncontroverted. In these circumstances even if no return has been filed on behalf of the respondents and even if the claim of the petitioner has not been denied by filing a return it is submitted by the learned counsel for the petitioner that assuming without admitting that both the respondents No. 3 and 4 were senior to the petitioner on the post of Superintendent that is prior to their appointment as Assistant Director of Fisheries the fact remains that the petitioner and Mr. Paniker were given appointment as Assistant Director of Fisheries by promotion simultaneously by an order dated 17th June 1971 as stated above and respondent No. 4 Mr. Menon was promoted as Assistant Director of Fisheries later on that is in the year 1974. On this basis even if Mr. Paniker is taken to be senior to the petitioner even on the post of A-ssistant Director so far respondent No. 4. Mr. Menon is concerned he was appointed for the first time on the post of Assistant Director in the year 1974 that is subsequent to the petitioners appointment in 1971 and therefore he cannot be treated to he senior to the petitioner and so far as the cadre of Asstt. Director of Fisheries is concerned he has to be taken as Junior to the petitioner being appointee of 1974 as against the petitioners appointment on the said post on 17th June 1971. Looking to the matter from yet another angle and ignoring the order dated 17th June 19/1 even if we look to the order dated 9th April 1975 by which the petitioner as well as respondents No. 3 and 4 were appointed as Assistant Directors on the basis of the direct recruitment held by the Public Service Commission name of the petitioner appears at Sr. No. 2 and the name of respondent No. 4 appears at Sr. No. 4. No. 2 and the name of respondent No. 4 appears at Sr. No. 4. Of course this order dated 9-4-1975 does not show that the names are arranged in the order according to the merit assigned by the Public Service Commission the petitioner has stated that these names are in the order of merit assigned by the Public Service Commission. This factual position has not been controverted by the respondents by filing any return or even orally at the time of arguments by the learned AGP before this Court. In this order dated 9th April 1975 the names are not even arranged according to alphabetical order. Therefore even this ground is not available to say that the names are not in accordance with the order of merit hut the same are in alphabetical order and on the basis of the pleadings and the copies of the orders which are available on record one can safely proceed on the premise that the names set out in the resolution dated 19th April 1975 are in accordance with the order of merit assigned on by the Gujarat Public Service Commission. Accordingly respondent No. 4 being at Sr. No. 4 and the petitioner being at Sr. No. 2 the petitioner has to he taken as senior to the respondent No. 4 as Assistant Director of Fisheries. ( 11 ) ). So far as the post of Deputy Director and the Deputy Commissioner are concerned it is the common case of the parties that these posts are not included in the cadre and the appointments by promotion on these posts have to be made by promotion after considering the candidature of the holders of the post of Assistant Direcor of Fisheries in the Department. No one has appeared on behalf of respondents No. 3 and 4 nor any return has been filed by respondents No. 3 and 4 to contest the claim of the petitioner that his candidature has not received fair consideration at the time of giving appointments by promotion to the post of Deputy Director and Deputy Commissioner to respondents No. 3 and 4 and it is clearly made out that the petitioner bas been subjected to discrimination on both the occasions that is while promoting respondents No. 3 and 4 as Deputy Directors and thereafter as Deputy Commissioners. Apart from the fact that even this ground of the petitioner that respondents No. 3 and 4 had not passed Gujarati and Hindi Examination and had also not passed the departmental examination prescribed under the rules is ignored because it has been verbally submitted by the learned A. G. P. Mr. Pujari that respondents No. 3 and 4 had been exempted from passing the examinations of Hindi and Gujarati as also the departmental examination the fact cannot be lost sight of that by no stretch of imagination the petitioner could be treated to be junior to respondent No. 4. Had their petitioner been treated to be senior to respondent No. 4 as Asstt. Director of Fisheries while considering the claims for post of Deputy Director and Deputy Commissioner of Fisheries the claim of the petitioner may have been preferred for appointment by promotion en both these posts. It is also a very strange situation that the petitioners representation against the order dated 30th December 1977 did not yield any result in his favour despite the fact that the Government itself in its Resolution Annexure-F came to the conclusion that the appointments made on the post of Deputy Director in favour of respondents No. 3 and 4 by an order dated 30th December 1977 were beyond the competence of the Commissioner who issued such orders in their favour and despite this all that was done vide Resolution dated 19th April 1978 was to say that their promotions are treated as purely temporary and on ad hoc basis and are subject to the finalisation of seniority position the respective cadres which was never finalised. Thus respondents No. 3 and 4 have enjoyed the posts in question since December 30 1978 and not only that they have been further promoted as Deputy Commissioners vide Resolution dated 1-5-82 vide Annexure-H wherein the name of Mr. Menon is at Sr. No. 4 and it is ex facie clear that even at the time of passing this Resolution Annexure-H dated 1st May 1982 the petitioners candidature did not receive fair consideration. Had the petitioner been treated to be senior to respondent No. 4 Mr. Menon at the time of passing of the order Annex.-H the petitioner could have been promoted as Dy. Commissioner in May 1982. Had the petitioner been treated to be senior to respondent No. 4 Mr. Menon at the time of passing of the order Annex.-H the petitioner could have been promoted as Dy. Commissioner in May 1982. Thus the petitioners candidature has suffered denial of a fair consideration on both the occasions that is at the time of passing of the order dated 30th December 1977 by which promotion was accorded to respondents No. 3 and 4 as Deputy Director and again on 19th October 1978 when respondents No. 3 and 4 were allowed to continue as Deputy Director despite the fact that their promotions dated 30th December 1977 were found to have been made by the Commissioner of Fisheries without any competence. The petitioner too could have been he holder of the post of Deputy Director of Fisheries since 30th December 1977 like respondents No. 3 and 4 and in that case at the time of passing of the Resolution Annexure-H dated 1-5-1982 he too would have got promotion as Deputy Commissioner instead of respondent No. 4 Mr. Menon at least. Thus the petitioner is held to be entitled for being considered for promotion and appointment to the post of Deputy Director from 30 December 1978 and as Deputy Commissioner from 1 However the petitioner had taken voluntary retirement from service with effect from 1 after the filing of this petition and the respondents No. 3 and 4 have continued on the post of Deputy Director as well as the Deputy Commissioner as stated above throughout and therefore at this stage I do not feel inclined to quash and set aside the appointments given to respondents No. 3 and 4 on the post of Dy. Director and Dy. Commissioner and filed it appropriate that the ends of justice will be served if the injustice suffered by the petitioner is remedied by directing the consideration of candidature of the petitioner for promotion to the post of Deputy Director of Fisheries from 30th December 1977 and for the post of Deputy Commissioner from 1st May 1982 and for that purpose it need be the Government may create a supernumerary post of Deputy Director of Fisheries and Deputy Commissioner of Fisheries. Since the petitioner has already retired from 1-2-1983 the question only remains about the benefits of these promotions to the petitioner from 30th December 1977 as Deputy Director of Fisheries and from 15 as Deputy Commissioner of Fisheries and all the consequential benefits. ( 12 ) ). This Special Civil Application thus partly succeeds and the respondents No. 1 and 2 are directed to consider the petitioners case for appointment by promotion to the post of Deputy Director from 30th December 1972 and for the post of Deputy Commissioner from 1-5-1982 treating the petitioner to be senior to respondent No. 4 Mr. Menon. In case of selection of the petitioner as a result of the consideration as directed above appropriate cadres shall be issued giving appointment by promotion to the petitioner as Deputy Director of Fisheries from 30th December 1977 and as Deputy Commissioner of Fisheries from 1 May 1982 and the petitioner shall also be paid the difference of salary for both these posts that is for the post of Deputy Director of Fisheries from 30th December 1977 to 30th April 1982 and for the post of Deputy Commissioner from 1st May 1982 till the dale of his voluntary retirement that is 1 February 1983 and pension and other retiral benefits of the petitioner shall also be revised and paid accordingly as if the petitioner had retired as Deputy Commissioner of Fisheries from 1 February 1983 on the basis of the last pay which he would have drawn had he been promoted as Deputy Commissioner of Fisheries on 1st May 1982. The petitioner is held to be entitled to all the consequential benefits as if he had been promoted and posted as Deputy Commissioner of Fisheries with effect from 1st May 1982. The directions as aforesaid shall be carried out by respondents No. 1 and 2 at the earliest possible opportunity but in no ease later than a period of three months from the date writ is served upon respondents No. 1 and 2. This petition is accordingly partly allowed. Rule is made absolute to the extent indicated hereinabove with no order as to costs. DS Permitted. .