STATE OF GUJARAT v. L. N. PATEL — 1999 DIGILAW 236 (GUJ)

C. K. THAKKER, J. ( 1 ) ADMITTED. Mr. J. V. Bhairavia, learned Counsel for the respondent - original petitioner-, appears and waives service of Notice of admission. In the facts and circumstances of the case, the matter is taken up for final hearing. ( 2 ) THIS Appeal is filed against a judgment and order passed by the learned Single Judge in Special Civil Application No. 4825 of 1987 on 27/11/1998. The respondent was the original petitioner. He approached this Court by filing the above petition for an appropriate writ, direction or order directing the respondents to consider the case of the petitioner for promotion to the post of Senior Inspector of Factories, Class I on roster point and to grant deemed date of promotion with effect from 1/09/1985 with all consequential benefits. ( 3 ) THE case of the petitioner was that he was appointed as Inspector, Notified Factories which is a Class II post, in the year 1973. On 31/05/1980, he was promoted as Junior Inspector. He belongs to Scheduled Tribe community. According to him, he became eligible to be promoted on roster point to the post of Senior Inspector of Factories which is Class I post. It may be stated that in the year 1966, the Government of Gujarat framed Rules in the exercise of powers under the Proviso to Article 309 of the Constitution, known as the Gujarat Factories Inspectorate Class I (Senior Inspector of Factories) Recruitment Rules, 1966 (hereinafter referred to as the "recruitment Rules") for appointment to the post of Senior Inspector of Factories. Rule 2 enacted that appointment to the post of Senior Inspector should be made either by promotion of persons of proved merit and efficiency or by direct selection. Rule 3 declared that for being eligible for promotion, a candidate must have held the post of Junior Inspector of Factories for a period of about five years and possessed a degree or a diploma in Mechanical and/or Electrical Engineering from a statutory University or a recognised Institution or possessed an equivalent qualification recognised by Government. Rule 5 provided that appointment by promotion and by direct selection shall be made in the ratio of 1:1 if suitable persons are available for promotion. Rule 5 provided that appointment by promotion and by direct selection shall be made in the ratio of 1:1 if suitable persons are available for promotion. ( 4 ) IT may further be stated that in exercise of the powers under the Proviso to Article 309 of the Constitution of India, the Government of Gujarat also framed Rules known as the "gujarat Labour Department (Conditions of Service relating to Gazetted Officers Examination) Rules, 1979 (hereinafter referred to as the "examination Rules") which prescribed passing of departmental examination as a pre-condition of eligibility for promotion. The Examination Rules came to be amended by the Gujarat Labour Department (Conditions of Service relating to Gazetted Officers Examination) (Amendment) Rules, 1987 (hereinafter referred to as "the Amended Examination Rules" ). Clause (1) of Rule 3 of the Amended Examination Rules provided that every person holding any designated post "shall pass the examination within three chances during the period of three years" from the date of publication of the Amendment Examination Rules. ( 5 ) IT is stated in the petition that no examination was held between 1966 and 1987. Though the examination was introduced for the first time by the Examination Rules of 1979, no such examination was taken before 1987. Under the Amended Examination Rules of 1987, the authorities decided to hold departmental examination for the first time in September, 1987. The petitioner appeared at the examination and cleared it. The petitioner thus became eligible for promotion to the higher post. It was stated that the petitioner cleared the examination on 14/07/1988 at the first attempt. ( 6 ) IT was contended before the learned Single Judge that though the petitioner was eligible and hence he ought to have been promoted in 1985, his case was not considered and he was deprived of legitimate right of promotion to the higher post. It was also contended that as per roster point, a candidate belonged to Scheduled Tribe ought to have been promoted in the year 1976 as per the Recruitment Rules. No such promotion, however, was given presumably because an eligible and qualified candidate of reserved category was not then available. As stated in the affidavit-in-reply, in 1980, one Mr. S. R. Bodar was promoted to the post of Senior Inspector of Factories, Class I. Mr. Bodar was, however, interested in getting the said post as a direct recruit. No such promotion, however, was given presumably because an eligible and qualified candidate of reserved category was not then available. As stated in the affidavit-in-reply, in 1980, one Mr. S. R. Bodar was promoted to the post of Senior Inspector of Factories, Class I. Mr. Bodar was, however, interested in getting the said post as a direct recruit. He, therefore, underwent the process of selection and was selected by the Gujarat Public Service Commission (GPSC) on 13/11/1980. Thus, Mr. Bodar had gone to Class I by direct recruitment. According to the petitioner, thus, the post originally held by Mr. Bodar fell vacant which ought to have been made available for promotion and the petitioner ought to have been promoted. Since he was not promoted, he approached this Court by filing the above petition. ( 7 ) THE learned Single Judge, after considering the facts and circumstances of the case, and taking into account various decisions of the Honble Supreme Court, allowed the petition by making the Rule absolute. The learned Single Judge in paras 17 to 22 observed as under:" thus, the rule laid down by the Supreme Court and the constitutional policy guarantees fundamental right of reservation to the Scheduled Castes and Scheduled Tribes in the public post and it is required to be implemented strictly in accordance with the provisions of the law stated above. In case carry forward vacancies could not be filled up to the Scheduled Castes and Schedules Tribes, the State Government is required to make appointments by special recruitment to them which is not in violation of any constitutional or statutory provisions of the law. It appears that the Government of Gujarat required a report from this Court to know what is the total strength of the officers and employees working in the lower judiciary of the State of Gujarat and what is percentage of the officers and employees belonging to SC/st actually working. This Court sent the following report (which came to be perused) showing the total officers and employees working on 31. 12. 1997 with the percentage of representation of SC/st. Judicial Members : 309 ST 1. 36% prescribed percentage not permissible. Class II officers: 288 ST 1. 78% prescribed percentage not permissible. Class III staff : 5225 percentage not feasible. Class IV staff : 1707 percentage not feasible. 12. 1997 with the percentage of representation of SC/st. Judicial Members : 309 ST 1. 36% prescribed percentage not permissible. Class II officers: 288 ST 1. 78% prescribed percentage not permissible. Class III staff : 5225 percentage not feasible. Class IV staff : 1707 percentage not feasible. This report shows that the prescribed percentage for members of SC/st has not been made applicable to lower judiciary i. e. Civil Judge (J. D.), Civil Judge (S. D.), Magistrate First Class, Assistant Judge, Additional District Judge/ District Judges in the Districts and City Courts even to officers Class II and no reason has been given therefor. While in the Class III and Class IV staff, the SC/st are not adequately represented hence their percentage to be mentioned has been avoided on the pretext that their percentage is not feasible. If it is tendency in one of the departments of the Government where the rule of law is guaranted it can be imagined what would be the actual representation of SC/st in other departments of the Government. The reservation of O. B. C. has also not been shown in the report sent to the Government of Gujarat. From the facts and circumstances, it appears that the Government of Gujarat has not given proper representation of the Scheduled Castes and Schedules Tribes and Other Backward Classes in the Government service. As such, the Government of Gujarat is required to fill up the backlog vacancies in required percentage under the rules for SCs/sts by special direct recruitment in all the departments to make appointment by promotion on roster point in all the departments where reservation in promotion is required under the rules on roster point. Accordingly, in view of discussion above, this petition is allowed and the respondents are directed to promote the petitioner as Sr. Inspector of Factories forthwith with all the consequential benefits with effect from 14. 7. 1988. The Government of Gujarat is further directed to sort out actual number of backlog vacancies in required percentage under the rules for the Scheduled Castes and the Scheduled Tribes in each cadre separately of its all departments including lower judiciary, to notify, advertise and fill up them by direct recruitment in Special drive for the Scheduled Castes and Schedules Tribes and to make promotion on roster point where promotion is required under the rules on roster point within six months. The reservation for OBC should also be given if permissible under the rules. The Registrar of this Court is directed to forward a copy of this judgment to the Chief Secretary of the Government of Gujarat, immediately for strict compliance. " ( 8 ) VARIOUS contentions were raised by Mr. Hasurkar, learned Counsel for the Appellant. It was vehemently contended that the learned Single Judge issued general directions which had nothing to do with the facts of the case and subject-matter of petition. It was, therefore, not open to the learned Single Judge in exercise of the powers under Article 226 of the Constitution of India to issue such directions. ( 9 ) IT was also contended that the learned Single Judge ought to have appreciated the fact that once Mr. Bodar was promoted to the post of Senior Inspector of Factories, Class I in 1980, roster point was utilised. Thereafter, even if Mr. Bodar had left for direct recruitment to the same post since the appointment by promotion was already made and promotion quota got exhausted, a candidate of Scheduled Tribe could not claim promotion on that vacancy. The learned single Judge, hence could not have issued a direction to fill in the post by promoting a candidate belonged to Scheduled Tribe. ( 10 ) A grievance was also made that under the Recruitment Rules, which are of a statutory nature, promotion to the post of Senior Inspector of Factories, Class I could be made on "proved merit and efficiency". No direction, therefore, could be issued by the learned Single Judge to the authorities "to promote the petitioner as Senior Inspector of Factories forthwith with all the consequential benefits with effect from 14. 7. 1988". At the most, the learned Single Judge could have issued a writ of mandamus directing the authorities " to consider" the case of the petitioner for promotion to the post of Senior Inspector of Factories Class I in accordance with the Recruitment Rules and to grant consequential benefits in accordance with law. ( 11 ) MR. BHAIRAVIA, learned Counsel for the petitioner, on the other hand, supported the judgment and order passed by the learned Single Judge. He submitted that a concession was made before the learned Single Judge by the learned Government Pleader that injustice was done to the petitioner. ( 11 ) MR. BHAIRAVIA, learned Counsel for the petitioner, on the other hand, supported the judgment and order passed by the learned Single Judge. He submitted that a concession was made before the learned Single Judge by the learned Government Pleader that injustice was done to the petitioner. He, therefore, requested the Court that without recording his consent appropriate writ could be issued and direction be given to the State Government to promote the petitioner. It was thereafter not open to the State to file an appeal against the judgment. ( 12 ) IT was also urged by the learned Counsel that larger observations have been made and general directions issued in the light of the facts brought before the Court and the Court was satisfied that in spite of several decisions of the Supreme Court, the State Government has not implemented constitutional provisions. The learned Single Judge was, in these circumstances, constrained to issue certain directions and there is no illegality in issuing such directions. ( 13 ) ACCORDING to Mr. Bhairavia, in the facts of the case, the learned Single Judge was satisfied that legitimate claim of the petitioner could not have been ignored by the department particularly when there was nothing against him. Nothing was brought to the notice of the Court even in the affidavits in reply. If, in these circumstances, the learned Single Judge has directed the respondent authorities to promote the petitioner to the post of Senior Inspector of Factories, Class I from 1988, the same does not require interference. ( 14 ) FINALLY, it was contended that the order passed by the learned Single Judge is in consonance with law as regards roster point and promotion of the petitioner. The Counsel stated that once Mr. Bodar has left, the post of Senior Inspector of Factories, Class I as a promotee, that post could only be filled in by promotion and that too from that class, i. e. by utilizing roster point. In other words, the post held by Mr. Bodar could be made available only to a candidate belonged to Scheduled Tribe. Undisputedly, the petitioner was the only candidate at the relevant time when he became eligible and no exception can be made against the direction issued by the learned Single Judge to promote the petitioner with effect from 14/07/1988. Mr. In other words, the post held by Mr. Bodar could be made available only to a candidate belonged to Scheduled Tribe. Undisputedly, the petitioner was the only candidate at the relevant time when he became eligible and no exception can be made against the direction issued by the learned Single Judge to promote the petitioner with effect from 14/07/1988. Mr. Bhairavia, therefore, submitted that L. P. A. has no merit and it deserves to be dismissed. ( 15 ) IN the facts and circumstances of the case, in our opinion, L. P. A. deserves to be partly allowed. As far as concession by the Asst. Government Pleader before the learned Single Judge is concerned, there is nothing in the judgment of the learned Single Judge. It is also clear that the matter was contested by the authorities by filing a counter-affidavit and also further affidavit. Hence, the preliminary objection against maintainability of L. P. A. raised by Mr. Bhairavia cannot be upheld and is rejected. ( 16 ) SO far as the grievance of the learned Counsel for the Appellant against wider observations and general directions is concerned, in our opinion, it is well-founded. The learned Single Judge was exercising jurisdiction in service matters under Article 226 of the Constitution and in these circumstances, he could have issued an appropriate writ, order or direction in the petition filed by the petitioner and was placed for hearing. The question before the Court was whether the action of the Government of not promoting the petitioner to the post of Senior Inspector of Factories, Class I was or was not legal and whether necessary directions could be issued to the authorities to promote and/or to consider the case of the petitioner in accordance with Statutory Rules. In our judgment, therefore, the learned Single Judge ought not to have made larger observations or issued general directions regarding filling up posts in Judicial Department or any other department. It may be recalled that the petition before the learned single Judge was not in the nature of Public Interest Litigation. Obviously because such matters, as per roster, could be placed before a Division Bench presided over by the Honble the Chief Justice. It may be recalled that the petition before the learned single Judge was not in the nature of Public Interest Litigation. Obviously because such matters, as per roster, could be placed before a Division Bench presided over by the Honble the Chief Justice. In our considered opinion, therefore, all observations and general directions issued by the learned Single Judge in paragraphs 17 to 22 were not necessary and they ought not to have been given by the learned Single Judge. ( 17 ) NOW coming to the facts of the case, our attention was invited by Mr. Bhairavia, learned Counsel for the petitioner to roster point. It was argued on behalf of the State Government that once a candidate belonged to Scheduled Tribe was promoted, the roster point ceased to operate. The roster point was utilised and thereafter even if a promotee retires or is otherwise not available, it is immaterial and the petitioner or for that purpose, no person can claim promotion contending that the post which was earmarked for Scheduled Tribe must be given to a person of that class. The learned Counsel, in this connection, drew our attention to Memorandum of L. P. A. wherein it was precisely contended by the State Authorities that once roster point got exhausted, the administration cannot be obliged to treat the same available to another candidate belonged to that category. It was submitted by Mr. Hasurkar that as soon as Mr. Bodar was promoted, roster point was over. Thereafter even if he has gone for direct recruitment and had been selected and appointed as a direct recruit to the post of Senior Inspector of Factories, Class I, neither the petitioner nor any other candidate similarly situated can claim over the said post. ( 18 ) THE question which arises for our consideration, therefore, is whether the contention raised by the learned Counsel for the Appellant is well-founded. In our opinion, it is not. We will not burden our judgment by referring to several decisions. We may, however, refer to only two of them; (i) R. K. SABHARWAL AND OTHERS v. STATE OF PUNJAB AND OTHERS : (1995) 2 SCC 745 ; and (ii) POST-GRADUATE INSTITUTE OF MEDICAL EXAMINATION AND RESEARCH v. K. L. NARASIMHAN AND ANOTHER : AIR 1997 SC 3687 . ( 19 ) IN R. K. SABHARWAL, almost a similar question arose before the Apex Court. ( 19 ) IN R. K. SABHARWAL, almost a similar question arose before the Apex Court. Considering the scheme of the Rules and underlying object behind such reservation, the Constitution Bench of the Supreme Court held that once a post is earmarked for a particular category or class, it must be filled in only by that category or class. In paragraphs 5 and 10, their Lordships stated;" We see considerable force in the second contention raised by the learned counsel for the petitioners. The reservations provided under the impugned Government instructions are to be operated in accordance with the roster to be maintained in each Department. The roster is implemented in the form of running account from year to year. The purpose of "running account" is to make sure that the Scheduled Castes/scheduled Tribes and Backward Classes get their percentage of reserved posts. The concept of "running account" in the impugned instructions has to be so interpreted that it does not result in excessive reservation. "16% of the posts. . . " are reserved for members of the Scheduled Castes and Backward Classes. In a lot of 100 posts those falling at Serial numbers 1, 7, 15, 22, 30, 37, 44, 51, 58, 65, 72, 80, 87 and 91 have been reserved and earmarked in the roster for the Scheduled Castes. Roster points 26 and 76 are reserved for the members of Backward Classes. It is thus obvious that when recruitment to a cadre starts then 14 posts earmarked in the roster are to be filled from amongst the members of the Scheduled Castes. To illustrate, first post in a cadre must go to the Scheduled Caste and thereafter the said class is entitled to 7th, 15th, 22nd and onwards upto 91st post. When the total number of posts in a cadre are filled by the operation of the roster then the result envisaged by the impugned instructions is achieved. In other words, in a cadre of 100 posts when the posts earmarked in the roster for the Scheduled Castes are the Backward Classes are filled the percentage of reservation provided for the reserved categories is achieved. We see no justification to operate the roster thereafter. The "running account is to operate only till the quota provided under the impugned instructions is reached and not thereafter. We see no justification to operate the roster thereafter. The "running account is to operate only till the quota provided under the impugned instructions is reached and not thereafter. Once the prescribed percentage of posts is filled the numerical test of adequacy is satisfied and thereafter the roster does not survive. The percentage of reservation is the desired representation of the Backward Classes in the State Services and is consistent with the demographic estimate based on the proportion worked out in relation to their population. The numerical quota of posts is not a shifting boundary but represents a figure with due application of mind. Therefore, the only way to assure equality of opportunity to the Backward Classes and the general category is to permit the roster to operate till the time the respective appointees/promotees occupy the posts meant for them in the roster. The operation of the roster and the "running account" must come to an end thereafter. The vacancies arising in the cadre, after the initial posts are filled, will post no difficulty. As and when there is a vacancy whether permanent or temporary in a particular post the same has to be filled from amongst the category to which the post belonged in the roster. For example, the Scheduled Caste persons holding the posts at roster points, 1,7, 15 retire then these also are to be filled from amongst the persons belonging to the Scheduled Castes. Similarly, if the persons holding the post at points 8 to 14 or 23 to 29 retire then these slots are to be filled from among the general category. By following this procedure there shall neither be shortfall nor excess in the percentage of reservation. " (Emphasis supplied ). xxx xxx" We may examine the likely result if the roster is permitted to operate in respect of the vacancies arising after the total posts in a cadre are filled. In a 100 point roster, 14 posts at various roster points are filled from amongst the Scheduled Caste/scheduled Tribe candidates, 2 posts are filled from amongst the Backward Class and the remaining 84 posts are filled from amongst the general category. Suppose all the posts in a cadre consisting of 100 posts are filled in accordance with the roster by 31. 12. 1994. Thereafter, in the year 1995, 25 general category persons (out of the 84) retire. Suppose all the posts in a cadre consisting of 100 posts are filled in accordance with the roster by 31. 12. 1994. Thereafter, in the year 1995, 25 general category persons (out of the 84) retire. Again in the year 1996, 25 more persons belonging to the general category retire. The position which would emerge would be that the Scheduled Castes and backward Classes would claim 16% share out of the 50 vacancies. If 8 vacancies are given to them then in the cadre of 100 posts the reserve categories would be holding 24 posts thereby increasing the reservation from 16% to 24%. On the contrary, if the roster is permitted to operate till the total posts in a cadre are filled and thereafter the vacancies falling in the cadre are to be filled by the same category of persons whose retirement etc. caused the vacancies then the balance between the reserve category and the general category shall always be maintained. We make it clear that in the event of non-availability of a reserve candidate at the roster point it would be open to the State Government to carry forward the point in a just and fair manner. " (Emphasis supplied ). In Post-Graduate Institute of Medical Examination, a Division Bench of three Judges reiterated the principle laid down by the Constitution Bench in R. K. SABHARWAL In paragraph 18, after referring R. K. SABHARWAL, the Court observed;" The fact is that appointment to a post by promotion is also a constitutionally permissible right under Article 16 (4 ). This Court has observed in Sabharwals case that the roster should be operated on current account basis in the order in which the vacancies are required to be filled in. No doubt, this Court pointed out that once roster points are filled up, the roaster gets exhausted but, in the latter paragraph, it was pointed out that re-cycling would start after the roster points are totally filled up. It was held by this Court, in paragraph 10, while pointing out the anomaly that "on the contrary, if the roster is permitted to operate till the total posts in a cadre are filled and thereafter the vacancy falling in the cadre are to be filled up by the same category of persons whose retirement etc. It was held by this Court, in paragraph 10, while pointing out the anomaly that "on the contrary, if the roster is permitted to operate till the total posts in a cadre are filled and thereafter the vacancy falling in the cadre are to be filled up by the same category of persons whose retirement etc. caused the vacancies, then the balance between the reserved category and the general category shall always be maintained. We make it clear that in the event of non-availability of a reserved candidate at the roster point, it would be open to the State Government to carry forward the point in a just and fair manner". Thus, it would be apparent that once the roster point is exhausted, it does not mean that reservation should not be applied thereafter. The recycling of the roster starts running like current account and as and when vacancy arises is accordance with the roster point, the posts/ vacancies would subsequently be filled up by appointment. It would be a continuous process". (Emphasis supplied ). ( 20 ) ). In the light of the above two decisions, in our opinion, the legal position appears to be fairly well-settled. A promotion and/or direct recruitment will have to be made in accordance with statutory rules. Ratio is provided in the Rules themselves. It has to be maintained. Similarly, promotion and direct recruitment will have to be made on the basis of availability of posts. If a particular post is earmarked for a particular class or category, it will have to be filled in only from that class or category. In their Lordships words, operation of the roster must be in the nature of a "running account" and it can come to an end only on appointment by promotion/direct recruitment, as the case may be. It is also clear that if such person retires, leaves service or is otherwise not available, another person of the same class must be promoted/ recruited in his place and it is not open to the authorities to deviate roster point. . ( 21 ) IN the instant case, it is clear that roster point provided for promotion of a candidate belonged to a Scheduled Tribe. Hence, when Mr. Bodar was promoted to the said post, obviously, his promotion was in accordance with law. Mr. Bodar then went for direct selection. . ( 21 ) IN the instant case, it is clear that roster point provided for promotion of a candidate belonged to a Scheduled Tribe. Hence, when Mr. Bodar was promoted to the said post, obviously, his promotion was in accordance with law. Mr. Bodar then went for direct selection. He was duly selected by GPSC and was appointed as Senior Inspector of Factories, Class I as a direct recruit. The resultant effect was that the promotional post of Senior Inspector of Factories, Class I fell vacant. In our view, as per the decisions of the Honble Supreme Court, the vacancy was required to be filled in by replacing another candidate belonged to Scheduled Tribe alone. As per settled legal position, after Mr. Bodar vacated the promotional post of Senior Inspector of Factories, Class I, the roster point did not come to an end so as to allow the authorities to promote a person of other class. It was incumbent on the part of the State authorities to promote a person belonged to the same class, namely, a Scheduled Tribe. ( 22 ) ANOTHER grievance of Mr. Hasurkar is against the operative part of the order. As already observed hereinabove, the learned Single Judge has issued direction "to promote the petitioner as Senior Inspector of Factories, Class I forthwith with all consequential benefits with effect from 14/07/1988". The question is whether such a direction could have been issued by the learned Single Judge in exercise of the powers under Article 226 of the Constitution of India. ( 23 ) IN this connection it may be profitable to refer to a decision of the Honble Supreme Court in STATE OF MYSORE AND ANOTHER v. SYED MAHMOOD AND OTHERS; AIR 1968 SC 1113 . There also, the question was of promotion of officers to the post of Senior Statistical Assistant. Under the relevant rules, the promotion was to be given to the said post on the basis of "seniority-cum-Merit". When no promotion was given to the petitioners, they filed a petition. The High Court allowed the petition and directed the State to promote the petitioners to the post of Statistical Assistant. The matter was carried by the State to the Supreme Court. When no promotion was given to the petitioners, they filed a petition. The High Court allowed the petition and directed the State to promote the petitioners to the post of Statistical Assistant. The matter was carried by the State to the Supreme Court. Allowing the appeal and setting aside the order passed by the High Court, the Apex Court held that a writ of mandamus cannot be issued to the State Government by a High Court directing the Government to promote the petitioners and appropriate direction would be to consider the case of the petitioners in the light of the relevant statutory rules. ( 24 ) THEIR Lordships observed;"where the promotion is based on seniority-cum-merit, the officer cannot claim promotion as a matter of right by virtue of his seniority alone. If he is found unfit to discharge the duties of the higher post, he may be passed over and an officer junior to him may be promoted. xxx xxx xxx We are of the opinion that the State Government should be directed at this stage to consider the fitness of Syed Mahmood and Bhao Rao for promotion in 1959. If on such examination the State Government arbitrarily refuses to promote them, different considerations would arise. The State Government would upon such consideration be under a duty to promote them as from 1959 if they were then fit to discharge the duties of the higher post and if it fails to perform its duty, the Court may direct it to promote them as from 1959. xxx xxx xxx In the result, we allow the appeals and set aside the orders passed by the High Court. We direct the State Government to consider whether Syed Mahmood and Bhao Rao should have been promoted to the posts of senior statistical assistants on the relevant dates when officers junior to them were promoted and if so, what consequential monetary benefits should be allowed to them. " ( 25 ) ACCORDINGLY, the Court directed the State Government to consider whether the petitioners would have been promoted to the post of Senior Statistical Assistants on the relevant date when officers junior to them were promoted and, if so, what consequential monetary benefits should be allowed to them. ( 26 ) IN our view, the case on hand is squarely covered by the ratio laid down in SAYED MAHMOOD. ( 26 ) IN our view, the case on hand is squarely covered by the ratio laid down in SAYED MAHMOOD. In the present case, we are concerned with Class-I post an under the statutory rules, promotion can be given on "proved merit and efficiency". Obviously, therefore, no direction could have been issued by the learned Single Judge to the State Government "to give promotion to the petitioner forthwith". The only direction which could have been issued by the learned Single Judge is to consider the case of the petitioner as and when he became eligible and qualified for promotion to the post of Senior Inspector of Factories, Class I. ( 27 ) MR. BHAIRAVIA, learned Counsel for the petitioner stated that a Departmental Promotion Committee (DPC) had met, the case of the petitioner was considered and he was found fit. If it is so, it is needless to state that an appropriate action will have to be taken by the Government. But to the extent that a direction is issued by the learned Single Judge to promote the petitioner is, in our view, not in consonance with law and L. P. A. must be allowed to that extent. ( 28 ) IN the result, the L. P. A. deserves to be partly allowed and is, accordingly, allowed in part. Wider observations and general directions issued by the learned Single Judge in paragraphs 17 to 22 were not necessary in the facts and circumstances of the case and could not have been issued by the learned Single Judge. We may, however, hasten to add that the State Authorities have to act in accordance with the provisions of the Constitution and we should not be understood to have stated anything contrary to constitutional mandate or avowed Policy of the State Government. ( 29 ) THE direction issued by the learned Single Judge "to promote the petitioner as Senior Inspector of Factories, Class I forthwith with all consequential benefits with effect from 14/07/1988" is set aside. Instead, a writ of mandamus is issued to the respondent authorities to consider the case of the petitioner for promotion to the post of Senior Inspector of Factories, Class I in the light of statutory rules as and when he became eligible and qualified for the said post. The authorities will also decide to what consequential benefits the petitioner is entitled. The authorities will also decide to what consequential benefits the petitioner is entitled. ( 30 ) IT was stated by Mr. Bhairavia that several posts are vacant. He further stated that as far as Senior Inspector of Factories, Class I of Scheduled Tribe is concerned, it is vacant since November, 1980 (when Mr. Bodar left it after he was selected by GPSC ). It is also not disputed that the petitioner became eligible before more than a decade. It is, therefore, directed that the State will undertake the above exercise as expeditiously as possibly, preferably within two months from the receipt of the Writ. ( 31 ) APPEAL is accordingly disposed of, in the facts and circumstances of the case, however, there shall be no order as to costs. .