JUDGMENT 1. 1. Anil Kumar Garg (petitioner) by way of this petition has sought appropriate writ, order or direction:-(a) for declaring promotion order dated 14.7.1995 (Ann.3) as illegal and arbitrary which relates to the promotion of S.L. Bora and R.K. Gulati (respondents 2 & 3) to the post of Deputy Housing Commissioner for the year 1994-95 and 1995-96; and (b) for directing the respondent Board to consider his case & promote him against vacancies of the years (1994-95 or 1995-96) with all consequential benefits besides seniority flowing therefrom and (c) for quashing and setting aside instruction No.7 of Circular relating to the procedure for being followed by the DPC in respect of Government servant under loud and/or sealed cover procedure applicable to officer coming under loud after holding of DPC but before promotion. 2. The petitioner having requisite qualification of B.E. (Civil) was initially appointed as Junior Site Engineer in the Rajasthan Housing Board (respondent 0.1) (for short 'the Board') after a regular selection and subsequently he was promoted as Site Engineer under order dated 18.9.1976, and as Resident Engineer by order dated 2.5.1986 but on temporary basis. Similarly undisputably after consideration of the objections, provisional seniority list of the Resident Engineers published on 29.3.1989 was made final which consisted of the Engineers who had been promoted through Departmental Promotion Committee (for brevity DPC) upto 23.8.1986 and as the petitioner was admittedly not selected, so his name did not appear in that seniority list. However, as a result of review DPC the petitioner was promoted through regular selection to the post of Resident Engineer for the year 1986-87 as would be evident from order dated 14.7.1995 (Ann.2) according to which, R.K. Gulati (respondent 3) was admittedly senior to the petitioner because in that promotion order, the petitioner's name appeared at S.No.3 while respondent 3's at S.No.2. 3. A dispute came to have arisen when the petitioner was not selected and promoted from the post of Resident Engineer to higher post of Deputy Housing Commissioner whereas by impugned and another promotion order dated 14.7.1995 (Ann.3), S.L. Bora (respondent 2) was promoted for the year 1994-95 against the vacany of merit quota on the basis of seniority and merit, and for the year 1995-96 R.K. Gulati (respondent 3) was promoted on the basis of merit alone. 4. 4. The petitioner has firstly assailed the promotions of the respondents 2 & 3 by contending that though the petitioner was available in the merit quota of the year 1994-95 but the respondent 2 was promoted wrongly and illegally by converting the vacancy itself into vacancy of seniority-cum-merit on the ground of non-availability of meritorious candidates, and similarly for merit quota post for the year 1995-96 to which R.K. Gulati was illegally promoted in preference to him, for which the petitioner has reasonable assumption that either his case on merit basis was not considered and/or if considered then it has not been fairly considered in accordance with (1) amendment dated 10.4.1991 made in Rajasthan Housing Board (Employees Conditions of Recruitment and Promotion) Regulations, 1976, (2) Rule 23, (3) Explanation to sub-rule (11)(b) of Rule 24A, (4) sub-rule (4) of Rule 24A of the Rajasthan Service of Engineers (Building & Roads Branch) Rules, 1954, (for brevity "Rules, 1954"), and (5) Instructions dated 26.11.1993 of the State Government for consideration of the incumbents against whom disciplinary inquiry for minor penalty is pending. 5. It has been contended on behalf of the petitioner that on the first day of April of the year of selection i.e. 1.4.1994 there was no charge sheet issued against the petitioner under Regulation 10 of the Board's Employees Conduct Regulations, 1976 for minor penalty while in his case it was issued on 7.7.1994 and accordingly as per his case, he was entitled to promotion for the year 1994-95. 6. As against this, the respondent Board in a categorical reply to the writ petition conceded that his case for promotion against merit quota was also considered objectively even without taking into consideration of the charge sheet dated 7.7.1994 but he was not found meritorious by the DPC for his promotion to the post of Dy. Housing Commissioner for the year 1994-95. 7. Hence the contention of the petitioner as to non-consideration of his case for promotion on merit quota for the year 1994-95 on wrong assumption of pendency of inquiry against him, is totally misconceived because pendency of inquiry against him was not at all taken into consideration while considering his case for promotion. Therefore, I do not enter into controversy in this regard for further consideration of the Instructions dated 26.11.1993 referred to above and its applications to the facts of the present case. 8. Therefore, I do not enter into controversy in this regard for further consideration of the Instructions dated 26.11.1993 referred to above and its applications to the facts of the present case. 8. The next ground of challenge, as urged on behalf of the petitioner, to the promotion awarded by the DPC in favour of respondent 3 (R.K. Gulati) for the year 1995-96 is to the effect that R.K. Gulati could not have been considered and promoted especially when disciplinary action was pending consideration which resulted in issuing a charge sheet on 5.4.1996-a copy whereof has been produced by the petitioner as Annexure 10 alongwith rejoinder to the respondent's reply which related to the period between 24.3.1993 to 25.3.1993 under charge No.2. 9. First of all the above charge sheet was issued on 5.4.1996 whereas as per statement of allegation to charge No.2 it relates to the period in between 24.3.1995 to 25.3.1995 which is different to the period stated under charge No.2. Secondly promotion order was issued on 14.7.1995 for which the DPC had convened meeting on 23.6.1995 to make selection for four posts of Dy. Housing Commissioner for the year 1994-95 and for two posts against vacancy of the year 1995-96. 10. According to the explanation appended to Rule (11) of Part II of the Procedure for holding meetings of DPC for promotion in various services, (which lays down procedure, eligibility and criteria of promotion on merits formula and its Clause I deals with revised criteria, eligibility and procedure for promotion to Junior, Senior and other posts encadred in the service), for the purpose of selection for promotion on the basis of merit, no person shall be selected if he does not have "Outstanding" or "Very Good" record in atleast five out of seven years preceding the year for which DPC is held. 11. Similar provisions are envisaged in Explanation to sub-rule 11(b) to Rule 24A of the Rules, 1954 which reads as under: "Explanation:-For the purpose of selection for promotion on the basis of merit no person shall be selected if he does not have "outstanding" or "very good" record in atleast five out of 7 years preceding the year for which D.P.C. is held." 12. Even as per Rule 23(1) of the Rules, 1954, minimum qualifications and experience as on the first day of April of the year of selection have to be taken into consideration for selection of the eligible candidates, as would be evident from a bare reading of Rule 23, itself, which runs as under: "23. Criteria for selection:--(l) the persons enumerated in column 4 of Schedule I, shall be eligible, on the basis of seniority cum merit, for promotion to posts specified in column 2 subject to their possessing the minimum qualifications and experience (on the first day of the month of April of the year of selection), specified in Column 5." 13. Shri Asopa cited decision of the Apex Court in (1) Union of India v. N.R. Banerjee ( 1997(9) SCC 287 ), wherein the Apex Court held indicating guiding principles for procedure of promotion for being adopted by the DPC that claims of eligible candidates have to be considered for promotion objectively and dispassionately, with a sense of achieving manifold purposes:-(1) affording an opportunity to the incumbent to improve excellence, honesty, integriety, devotion to public duty; (2) inculcating discipline in service; (3) affording opportunity to every eligible officer within the zone of consideration for promotion to a higher post or office; and (4) ensuring that the Committee regularly meets and considers their claim objectively, impartially with a high sense of responsiblity in accordance with the procedure and finalisation of the list in advance so as to fill up vacancies arising in the year from the approved panel without any undue delay. The Apex Court held aforesaid guiding factors as salutary principles which form the purpose and the policy behind the rules and the Government should follow them. 14. In that case (supra) also the question was as to the year upto which the DPC should have considered the eligible candidates and the year upto which the DPC should have taken into consideration the ACRs of the candidates for preparing panel for the year 1994-95 for promotion. It was a case where four members of the Ordinance Factory Board were to retire in August, September, October, 1995 and March, 1995. The Board initiated action on 22.12.1993. The DPC for filling up of the resultant four vacancies was held on 15.3.1995. It was a case where four members of the Ordinance Factory Board were to retire in August, September, October, 1995 and March, 1995. The Board initiated action on 22.12.1993. The DPC for filling up of the resultant four vacancies was held on 15.3.1995. The Central Administrative Tribunal held that only those candidates were to be considered for promotion who were eligible upto March, 1993 and ACRs for the year 1994 should not have been taken into consideration by the DPC. While affirming the view of the Tribunal and rejecting the contention of the Union of India that crucial date for DPC meeting for selection should be April or May, 1995, the Apex Court held that four anticipated vacancies were to be finalised before April, 1994 and the confidential reports should have been approved before 31.3.1993 and all eligible candidates within the zone of consideration as on the date of DPC were entitled to be considered. 15. In the present case since the DPC was held on 23.6.1995 for four vacancies of year 1994-95 (1.4.94 to 31.3.95) and for two vacancies of year 1995-96 (1.4.95 to 31.3.%), their preceding years were ending before 1.4.1994. In this view of the matter, for the vacancies of the years 1994-95 and 1995-96, the ACRs upto 31.3.1993 and 31.3.1994 respectively of the eligible candidates within the zone of consideration for the DPC held on 23.6.1995 were rightly considered by the DPC. 16. Likewise, the charge sheet issued after 31.12.1994, may be for the incident of period earlier to 31.12.94 or 31.3.95, could not have been taken into consideration because, as held by the Apex Court in (2) Union of India v. K.V. Jankiraman AIR 1991 Supreme Court 2010 sealed cover procedure as provided under the relevant rules (Instructions dated 26.11.93 referred to above by the petitioner herein) has to be resorted to only after the charge sheet is issued because pendency of preliminary investigation or inquiry prior to that stage is not sufficient to enable authorities to adopt such procedure. The same procedure has been made applicable in case of the present petitioner for consideration of promotion. The same analogy is applied in case of R.K. Gulati (respondent No.3) for consideration of his promotion by the DPC for the impugned selection. 17. Moreover, preliminary inquiry file was called for pertaining to the alleged complaint against R.K. Gulati. The same procedure has been made applicable in case of the present petitioner for consideration of promotion. The same analogy is applied in case of R.K. Gulati (respondent No.3) for consideration of his promotion by the DPC for the impugned selection. 17. Moreover, preliminary inquiry file was called for pertaining to the alleged complaint against R.K. Gulati. I have seen the file produced by the Board respondent in respect of disciplinary proceedings initiated against respondent No.3 R.K. Gulati on issuance of charge sheet dated 5.4.96 (Ann. 10). A bare look at it shows that though Preliminary Enquiry and disciplinary inquiry have been conducted against respondent No.3 for the alleged irregularities relating to the year 1993 but in ultimate result it culminated into his exoneration of all the charges levelled under aforesaid charge sheet dated 5.4.96 vide order dated 5.9.97 as all the charges were found to have been not proved and accordingly he was held not guilty to the charges. Thus on this count also, the case of the petitioner assailing the promotion of R.K. Gulati falls to the ground. Accordingly, the respondent Board and the DPC did not contravene any of the provisions provided for sealed cover procedure under the Instructions in question (supra) before considering the candidature of the respondent No.3 for promotion to the post of Dy. Housing Commissioner for the year 1995-96 nor there is denial of promotion to the petitioner contrary to Rule 23 of the Rules of 1954, nor there was any deliberate delay in conducting preliminary inquiry nor the impugned promotion of respondent No.3 suffers from vice of malice on the part of respondent Board, nor the impugned order of promotions suffers from material illegality due to non-adoption of sealed cover procedure under the Instructions dated 26.11.93, nor any case is made out to set aside para 7 of the instructions dated 16.11.1993. 18. Shri Asopa also placed reliance on the ratio of decisions which are dealt with hereinafter 19. In (3) Chandragupta v. Secy Ministry of Forests QT 1994(6) SC 132) , short question having arisen for consideration before the Apex Court was, on the expunction of adverse remarks of the appellant and consequent promotion dates back to the date when it was due ? and on such according of promotion, how is seniority of the officers to be reckoned ? and on such according of promotion, how is seniority of the officers to be reckoned ? It was a case where a special review was provided for under clause III(vi) of the Government's orders dated 31.1.85, according to which special review could be done in cases where the adverse remarks in the officers' annual confidential reports are expunged subsequently as a result of their representations. But the Apex Court held as under: "37. On this score, we are unable to hold that on the expunction of adverse remarks and consequential promotion the appellant would date back to the date when it was due. First of all the method of selection is : "selection should be made on merit with due regard to seniority in terms of Rule 3(3) of the Indian Forest Service (Pay) Rules, 1968." 20. On the basis of Rule 3(3) of the IFS Rules, 1968, the Apex Court held that what is essential is merit and not mere seniority, and further that even assuming the best in favour of the appellant as a consequential of expunction of adverse remarks the appellant's case was liable to be reviewed by the DPC for the post of Chief Conservator Forest as on the date when respondents 3 to 5 were promoted it could be done, provided the appellant was found suitable for promotion. 21. Be that as it may, in the light of the following observations, this decision does not help in any manner to the petitioner in advancing his case:- "What requires to be carefully noted is eligibility for promotion is one thing while actual promotion is a different thing Even in this ruling promotion in accordance with the Rules alone was what was directed. Even assuming on the strength of this ruling the appellant is entitled to promotion on the date when he became eligible for promotion but for these adverse entries, a factual finding requires to be rendered." (Para 42) "These are matters pending adjudication in OA No.617/1992. Therefore, we restrain from saying any thing more as to the entitlement of seniority of the appellant over respondents 3 to 5. That will depend upon the decision in OA No. 617 of 1992." (Para 43) 22. Therefore, we restrain from saying any thing more as to the entitlement of seniority of the appellant over respondents 3 to 5. That will depend upon the decision in OA No. 617 of 1992." (Para 43) 22. Next case cited in (4) Lakhi Ram v. State of Haryana AIR 1981 Supreme Court 1655 is also not applicable being distinguished to the facts of present case as it was a case where the Apex Court held that upon expungement of adverse remarks in confidential report of an officer by the Government, in view of chances of promotion of another officer affected, he cannot challenge such expungement, since in the present matter, there is no such controversy at issue. 23. In (5) State of UP Vs. Yamunashakar QT 1997(4) SC 1 the Apex Court while dealing with object of confidential reports has observed that the officer entrusted with the duty to write confidential reports, has a public responsibility and trust to write confidential reports objectively, fairly and dispassionately while giving as a accurately as possible, the statement of facts on an overall assessment of performance of the subordiante officer. This decision does also not help the petitioner. 24. On the other hand, Shri Mahendra Goyal, learned counsel representing the respondent Board placed reliance upon decisions on the uestion of interference in the selection for promotion made by the DPC. In(6) State of Bihar v. Bateshwar Sharma ( 1997 (4) SCC 424 ) , the respondent against whom disciplinary action had been initiated on account of misconduct was considered for promotion by the DPC which declared him "unfit for promotion upto 16.1.1994" on regular basis in its proceedings. The High Court however declared that the respondent be deemed to have been promoted from 17.1.1989 with all consequential benefits. Setting aside the order of the High Court, the Apex Court held that the view taken by the High Court is palpably illegal for the reason that once the DPC had found that the respondent was unfit for promotion upto a date, the only course that requires to be adopted by the High Court was to remit the matter to the Government for constitution of the DPC to consider respondent's fitness for promotion in the later period. 25. 25. In (7) Durgadevi v. State of HP ( 1997(4) SCC 575 ) respondent 4 challenged appellant's appointment inter alia on the ground that he was academically more meritorious than the appellant and therefore the Selection Committee was not justified in preferring the appellant in selection. The Tribunal allowed the application filed by respondent 4 and quashed the selection of the appellants by itself judging the comparative merits of the candidates. Quashing the order of the Tribunal, the Apex Court held that the Tribunal fell in error in arrogating to itself the power to judge the comparative merits of the candidates and consider the fitness and suitability for appointment because that was the function of the Selection Committee. The order of the Tribunal under the circumstances was held to be not sustainable and the matter was remitted to the Tribunal for a fresh disposal on other points in accordance with the law after hearing the parties. 26. In (8) Nutan Arvind v. Union of India ( 1996(2) SCC 488 ) the Apex Court observed that it is for the DPC to consider at the time when the assessments of the respective candidates is made as to whether the officer who had reviewed the performance of the appellant was competent to do so and to write the appellant's confidentials. It held thus: "When a high level committee had considered the respective merits of the candidates, assessed We grading and considered their cases for promotion, the Supreme Court cannot sit over the assessment made by the DPC as an appellate authority. The DPC would come to its own conclusion on the basis of review by an officer and whether he is or is not competent to write the confidentials is for the DPC to decide and call for report from the proper officer. It had done that exercise and found the appellant not fit for promotion. Thus there is no manifest error of law for interference." 27. In (9) Major General IPS Dewan v. Union of India ( 1995(3) SCC 383 ) , while dealing with the contention that administrative orders affecting the rights of citizens should contain reasons therefor, the Apex Court held that unless the rules so require, the Selection Committee/Board is not obliged to record reasons why they are not selecting a particular person and/or why they are selecting a particular person, as the case may be. 28. 28. In (10) LIC of India v. Jagmohan Sharma ( 1998(9) SCC 219 ) , in a case for non-promotion or denial of promotion and while promoting the juniors, when challenged in a writ petition, the Apex Court held that the appropriate relief to be granted is not a direction to romote him but a direction to consider his case for promotion from the date of promotion of his juniors on the same criteria on which the juniors were promoted. 29. In (11) State of Rajasthan v. Sriram Verma ( 1996(6) SCC 493 ) , the Apex Court held as under: "In the matter of promotion on the basis of seniority cum merit, clauses (a) and (b) of Rule 28-B (11) of the Rajasthan Administrative Service Rules, 1954 neither provide for grading nor do they require the recording of reasons for superseding a senior. In such a situation and when the pormotion is made by the Departmental Promotion Committee, it cannot be held that ordinarily the DPC should record reasons for not selecting a senior (and selecting his juniors) or that atleast the record should indicate some reason therefor. It is one thing to say that such a course is fair and desirable but it is altogether a different thing to say that such a course is obligatory or necessary in all cases for in the latter event the selections made are liable to be set aside for not complying with the said requirement. At the same time, it is always desirable that procedure adopted by the selecting body should be fair and such as to lend credence to the process; it should be such as to inspire confidence in all concerned within the Practicable limits. From this point of view, it would be a wholesome step or the Government of Rajasthan for that matter, all that in the matter of promotions on the basis of merit or merit cum seniority/merit cum suitability, the selecting authority should follow the method of grading all the candidates appearing before them. However, where the rules already provide for grading or for awarding marks or for recording of reason for overlooking a senior this suggestion may not be applicable." 30. However, where the rules already provide for grading or for awarding marks or for recording of reason for overlooking a senior this suggestion may not be applicable." 30. Next argument urged by the learned counsel for the petitioner is that the respondents have committed an illegality in converting the vacancy of merit quota (year 1994-95) into that of seniority cum merit quota because as per sub- rule 4 of Rule 24A of the Rules of 1954, such a conversion did not arise at all. Sub-rule (4) of Rule 24A reads as under: "Selection for promotion in the regular line of promotion from the post/posts not included in service to the lowests posts or category of post in the service shall be made strictly on the basis of merit and on the basis of seniority-cum-merit in the proportion of 50:50. Provided that if the Committee is satisfied that suitable persons are not available for selection by promotion strictly on the basis of merit in a particular year. Selection by promotion on the basis of seniority-cum-merit may be made in the same manner as specified in these Rules." 31. It is the case of the petitioner that since he was allotted the year 1986-87 while according to him promotion to the post of Resident Engineer vide order dated 14.7.75 (Ann.2) as a result of review DPC, and thereby he acquired eligibility for consideration of promotion to the post of Dy. Housing Commissioner on completion of requisite 5 years' service in the year 1991-92, inasmuch as his name would have figured below S.K. Bhatia in the final seniority list dated 29.3.1989 (Ann.1) and as such he was within eligiblity zone as per sub rule (9) of Rule 24-A of the Rules of 1954. However, respondent Board did not dispute the fact of the petitioner having been eligible and within zone of consideration as found by the DPC. That apart, admittedly as per the petitioner himself, he ought to have been figured below S.K. Bhatia in seniority list (Ann.1) as a result of review DPC selecting him regularly for promotion to the post of Resident Engineer for the year 1986-87, then a bare look at the aforesaid seniority list (Ann.1) shows that S.K. Bhatia was much junior to O.P. Bohra & S.L. Bora whose names appeared at S.No. 18 & 22 respectively and at 25 (S.K. Bhatia). Thus admittedly O.P. Bohra and S.L. Bora (respondent 2) were senior to the petitioner. Even as per promotion order dated 14.7.95 issued as a result of review DPC, R.K. Gulati (respondent 3) while according promotion for the year 1986-87 was shown senior to A.K. Garg (petitioner) as has been reiterated in reply to the writ petition by the respondent Board. 32. The position emerging from provisions contained in the Board's Regulations, 1976 read with Rules, 1954 as amended from time to time makes it clear that selection for promotion to the post of Dy. Housing Commissioner is required to be made strictly on the basis of merit and on the basis of seniority cum merit in the proportion of 50:50. It is the case of the respondent Board in its reply to the writ petition that for four vacancies of 1994-95, 12 Resident Engineers including A.K. Garg (petitioner) were considered namely Sarva Shri (1) R.M. Mathur (2) K.S. Mathur (3) O.P. Bohra (4) H.M. Khandelwal (5) T.C. Mittal (6) S.L. Bora (7) O.P. Lal (8) R.K. Gulati (9) A.K. Garg (10) S.K. Chaturvedi (11) S.K. Shivhari (12) N.K. Agarwal, who were in zone of consideration for pormotion. A sealed cover procedure has been adopted by the DPC in respect of Shri R.M. Mathur in compliance with order dated 28.11.94 of this Court in his Writ Petition No.5904/93 and Shri K.S. Mathur was promoted on the basis of seniority cum merit. Out of the rest of two posts of merit quota, Shri T.C. Mittal was promoted on the basis of merit, and Shri S.L. Bora (who was senior to the petitioner) was promoted on the basis of seniority cum merit against merit quota, because no junior to Shri S.L. Bora in the zone of consideration including A.K. Garg (petitioner) was found meritourious by the DPC in its metting held on 23.6.95 for promotion on the merit basis. It has also been conceded by the respondent Board that case of the petitioner for promotion against merit quota for the year 1994-95 was objectively considered without taking into consideration charge sheet dated 7.7.94 issued against him but the DPC did not find him meritorious for promotion qua other persons including respondent 2-S.L. Bora, who as stated above was promoted on the basis of seniority cum merit. Proviso to sub-rule (4) of Rule 24-A of Rules 1954 empowers the DPC to make selection by promotion on the basis of seniority-cum-merit in the same manner as specified in the Rules in case it is satisfied that suitable persons are not available for selection by promotion strictly on the basis of merit in a particular year, as has been done in case of granting promotion and making selection for promotion by the DPC in its meeting held on 23.6.95 for the vacancy of merit quota for the year 1994-95 in favour of S.L. Bora (respondent 2) on the basis of seniority-cum-merit. 33. For two posts of the year 1995-96, eight Resident Engineers who were eligible and in zone of consideration namely Sarva Shri (1) O.P. Bohra (2) HM Khandelwal (3) O.P. Lal (4) R.K. Gulati (respondent 2) (5) A.K. Garg (petitioner) (6) S.K. Chaturvedi (7) S.K. Shivhari and (8) N.K. Agarwal were considered by the DPC in its meeting convened on 30.6.95. The DPC recommended Shri O.P. Bohra for promotion on the basis of seniority cum merit being senior most person amongst the candidates who were eligible within zone of consideration for the vacancy of the year-1995-96, whereas for the vacany of merit quota of the year 1995-96, the DPC selected Shri R.K. Gulati and recommended him for promotion on the basis of merit being senior undisputably to the petitioner also, inasmuch as no person junior to the petitioner was ever found suitable for promotion ignoring him, rather as per admission on the part of the respondent Board itself, for considering petitioner's case for the vacancy of merit quota also, charge sheet issued to him on 7.7.94 was not taken into consideration for the reasons assigned above. In this view of the matter, obviously none out of eligible candidates including the petitioner and respondents were found suitable by the DPC, the vacancy of merit quota of the year 1994-95 was filled up by recommending senior most Resident Engineer S.L. Bora (respondent 2) on the basis of seniority-cum-merit as provided under Proviso to sub-rule (4) of Rule 24-A of the Rules, 1954 in consonance with provisions contained in the Board's Regulations, 1976 as amended from time to time, and in my considered view, there was neither any mistake nor error apparent on the face of record substantially affecting decision of the DPC. It is also not the case of the petitioner that there has been change in seniority or wrong determination of vacancies, or that there has been expungement of adverse entries in the confidential reports of either of the parties having been considered by the DPC for promotion in question. 34. That apart, as propounded by series of decisions including cited by the learned counsel for the respondent Board and other contesting respondents (supra) once the DPC has found the aggrieved candidate unfit for promotion of merit quota vacancy for a particular year, the Court or the Tribunal before which the aggrieved candidate assails the decision of the DPC for not selecting him for promotion or appointment, could not have arrogated to itself the power to judge the comparative merits of the candidates and consider the fitness and suitability for selection because it was the function of the selection committee. That being so, this Court cannot sit over the assessment made by the DPC as an appellate authority. 35. As regards the contention urged on behalf of the petitioner that the respondent Board or the DPC has not disclosed criteria adopted for merit basis and that the respondent Board deliberately did not disclose the grading of APARs of relevant period, rather during seven years preceding the year of selection, he had either outstanding or very good record in atleast five years, in m considered opinion, none of these contentions are sustainable so as to call for any interference with the conclusions or review of decision of the DPC for the selection of promotion in question, because the rules relevant in the instant case do not require that the DPC is obliged to record reasons as to why it was not selecting a particular person and/or as to why it was selecting a particular candidate as the case may be. Even Rule 28-B of the Rajasthan Administrative Service Rules 1954 (which is equivalent to Rule 24-A of the Rules, 1954 herein) as noticed by the Apex court in State of Rajasthan v. Sriram Verma (supra) did neither provide for grading nor did they require the recording of reasons for superseding a senior and, therefore, it cannot be held that DPC should record reasons for not selecting a senior (and selecting his juniors) or that atleast the record should indicate some reason therefor. In the instant case, hence, it cannot be assumed that the DPC has not superseded the petitioner while selecting his seniors either Shri S.L. Bora (responent 2) or Shri R.K. Gulati (respondent 3) for promotion to the post of Dy. Housing Commissioner from merit quota or for posts other than merit quota either on the basis of seniority-cum merit and/or merit basis for the years 1994-95 & 1995-96. 36. Shri Asopa cited a decision of the Apex Court in (12) UP Jal Nigam v. Prabhat Jain ( 1996(2) SCC 363 ) wherein though the UP Jal Nigam Rules provided for communiciation of adverse entry but not of downgrading of an entry, therefore, in such circumstances even in cases of an extreme variation in gradation such as "outstanding" gradation in one year followed by 'satisfactory' in the succeeding year, the Apex Court held that such an extreme variation may reflect an adverse element compulsorily communicable, besides reason for such a change must be recorded in the personal file and the employee must be informed of the change in the form of advise, otherwise the downgrading cannot be sustained. Without disputing the dictum of law, in my considered view, since in the instant case no such controversy has arisen, this decision renders no aid in any manner. 37. Even in aforecited decision the Apex Court held that if the graded entry is of going of a step down, like falling from 'very good' to 'good' that may not ordinarily be an adverse entry since both are a positive grading, as has happended in the case of the present petitioner in whose case, as I find from a careful look at a chart/comparative statement of APARs from the years 1987-88 to 1994-95 in respect of the petitioner as well as contesting respondents, there was no extreme variation in gradation such as 'outstanding' gradation in one year followed by 'satisfactory in the succeeding year, and there was only one graded entry going of a step down, like falling from 'very good' to 'good'. That apart emphasis has been laid down by the Apex Court that reason for an extreme variation disclosed (supra) must be informed to the employee in the form of advice only after recording it in his personal file, otherwise such downgrading cannot be sustained and taken into consideration by competent authority as an adverse element at appropriate stage in future service career so as to deprive him of service benefits. 38. It is never the case of the petitioner that either of the respondents 2 & 3 are junior to him rather on the basis of material on record, he was junior not only to the respondent No.2 but also respondent 3. Be that as it may, as is evident from the relevant rules for the selection for promotion, what is essential is merit and not mere seniority. Similarly what requires to be carefully noted is eligibility for promotion is one thing while actual promotion is a different thing. In the instant case, eligibility for promotion and the petitioner having come within zone of consideration was never disputed, rather his case was considered for promotion not only objectively but also fairly for the vacancies of merit quota on the basis of merit and/or seniority cum merit also, to which the DPC found only respondents 2 & 3 suitable and recommended holding them fit for promotion against respective posts. Thus, the respondent Board & the DPC authority have both acted reasonably, fairly and in public interest and hence it cannot be inferred that it has committed any omission or illegality in the matter. There is no manifest error of law for interference. Therefore, I do not find that the orders of promotion assailed in this petition are vitiated by any error of law warranting interference. Resultantly, this writ petition being devoid of any merit is dismissed. No costs. Petition dismissed. *******