S. B. SINHA ( 1 ) THIS writ petition is directed against an order and judgment dated 17. 05. 2000 passed by the Central Administrative Tribunal, Principal Bench (hereinafter referred to as the Tribunal ) in O. A. No. 1067 of 1999 whereby and whereunder an original application filed by the petitioners herein claiming seniority over the private respondents herein was dismissed. ( 2 ) THE petitioners were employees of Indian Trade Service. The terms and conditions of the petitioners are governed by rules made by the President in this behalf in exercise of his powers conferred upon him by the proviso appended to article 309 of the Constitution of India ( in short, the Constitution ) known as indian Trade Service (Group a ) Rules ( hereinafter referred to as the Rules ). ( 3 ) THE petitioners were promoted as Export Promotion Officers in the years 1983-84 in the Ministry of Commerce. The Export Promotion Officers Cadre in the said Ministry was merged with Central Trade Service (now known as Indian trade Service) in the year 1988. In the aforementioned merged Cadre, the next promotion was of Group II and in terms of the said Rules as regards promotion to group II, it was laid down :- " (D) Grade II: (i) 66-2/3% will be filled by promotion on the basis of non-selection of Grade III officers of the indian Trade Service with 4 years regular service in the grade; (ii) 33-1/3% will be filled by promotion on the basis of selection of controller / enforcement officer and export promotion officer of the erstwhile export promotion cadre with 8 years regular service in the respective grade. Note : The eligibility list for promotion of officer mentioned at (ii) above shall be prepared with reference to the date of completion by the officers of the prescribed qualifying service in the respective grade / post. " ( 4 ) IT is not in dispute that in terms of the aforementioned Rules, the petitioners were entitled for consideration for their promotion in Group II of Indian trade Service against 33-1/3% quota of the vacancies. " ( 4 ) IT is not in dispute that in terms of the aforementioned Rules, the petitioners were entitled for consideration for their promotion in Group II of Indian trade Service against 33-1/3% quota of the vacancies. ( 5 ) THE petitioners before the learned Tribunal as also before us contended that in terms of the said Rules, they were entitled to be considered for promotion as far back as in the year 1991, but the respondents not only failed and neglected to take steps in this behalf, but filled up the posts from amongst the non- selection Grade III Officers and only on ad hoc basis they were promoted in the year 1993-94, although there had been clear vacancies. ( 6 ) A meeting of Departmental Promotion Committee (in short, dpc ) was held by Union Public Service Commission (in short, upsc ) on 06. 04. 1998 for the purpose of relaxation of the ad hoc promotions, whereafter they were promoted w. e. f. 01. 05. 1998. ( 7 ) THE respondents, on the other hand, contended that although UPSC was requested to convene a meeting of DPC for rilling up the post of ITS Grade II against 33-1/3% to the quota earmarked for the Export Promotion Officers, but the same was turned down inter alia on the ground that interim order had been passed by the Tribunal in O. A. No. 1125 of 1990 directing not to make regular appointments pending disposal of the case and as such they were promoted on ad hoc basis in 1994. ( 8 ) UPON vacation of the said interim order, the promotions were effected from 01. 05. 1998. As the respondents failed and/or neglected to grant them promotion with retrospective effect, the original application was filed. ( 9 ) THE unofficial respondents, however, were promoted by an order dated 08. 06. 1995. It is not in dispute that whereas the proceeding for promoting the private respondents was initiated on 04. 12. 1995 by the internal DPC; UPSC was requested to do so after the said interim stay was vacated by the Tribunal in the aforementioned original application only in terms of the proceedings dated 20. 02. 1996. 06. 1995. It is not in dispute that whereas the proceeding for promoting the private respondents was initiated on 04. 12. 1995 by the internal DPC; UPSC was requested to do so after the said interim stay was vacated by the Tribunal in the aforementioned original application only in terms of the proceedings dated 20. 02. 1996. The learned Tribunal inter alia held :- (I) no promotion can be directed to be granted with retrospective effect from the dates on which vacancy arose; (II) the petitioners having been promoted w. e. f. 01. 05. 1998 without following procedure and in view of the decision of the Apex Court in M. K. Shanmugam and Anr. v. UOI and Ors. the said period of promotion cannot be given effect from the said date also and the official respondents having been taken all steps for promoting the petitioners, the delay therefore cannot be attributed to inaction on their part; (III) Except Shri S. K. Prasad and Shri A. K. Thareja, no unofficial respondents had been promoted with retrospective effect from 1992-93. ( 10 ) IT is not in dispute that after the aforementioned order of the Tribunal has been passed final seniority list of Grade II Officers as on 31. 12. 1999 had been issued on 24. 08. 2000 wherein the name of the petitioner is at the end of the list without giving them the quota of 33-1/3% as well as panel seniority. ( 11 ) MR. Gyan Prakash, the learned counsel appearing on behalf of the petitioner, inter alia would submit that keeping in view the fact that quota rota system was to be given effect to, the respondents were bound to fill up the posts w. e. f. the respective dates each year when the vacancies arose. ( 12 ) THE learned counsel would contend that assuming that an order of stay passed by the Tribunal was operative, there had been no bar in holding a meeting of DPC by UPSC or considering the cases for promotion. On the other hand, in respect of the official respondents, DPC was held and as soon as the stay was vacated, they were promoted on a regular basis. ( 13 ) THE learned counsel would urge that having regard to the Rules, which were in force, governing the promotion of Grade II in ITS, the vacancies were to be filled up year-wise. ( 13 ) THE learned counsel would urge that having regard to the Rules, which were in force, governing the promotion of Grade II in ITS, the vacancies were to be filled up year-wise. Reliance in this connection has been placed on Union of india and. Ors. v. N. R. Banerjee and Ors. ( 14 ) THE learned counsel would contend that the Ministry of Personnel, public Grievances and Pensions, which was authorised to determine the controversy relating to recruitment, promotion and seniority, issued a memorandum dated 17. 02. 1990, the same should have been given effect to having regard to the allocation of business in terms of clause 3 of Article 77 of the Constitution. ( 15 ) MR. Jayant Bhushan, the learned counsel appearing on behalf of the official respondents, however, would contend that the process of selection as also the authorities, which were to consider the matter for promotion, being different, although the unofficial respondents had been promoted earlier, but therefor no arbitrariness can be inferred. ( 16 ) THE learned counsel would contend that the questions raised in this writ petition, namely, grant of promotion in terms of quota rota system had not been raised before the Tribunal. ( 17 ) THE learned counsel would contend that the Central Government has a power of relaxation in terms of clause 15 of the said Rules, which is in the following terms :- "15. Power to relax : where the Government is of the opinion that it is necessary or expedient so to do, it may, by order for reason to be recorded in writing and in consultation with the Commission, relax any of the provisions of these rules with receipt to any class or category of persons of posts. " ( 18 ) THE learned counsel would urge that whereas the DPC had met for the purpose of grant of ad hoc promotion, UPSC never met. The learned counsel would submit that UPSC failed to convene a meeting despite the respondent s letter dated 25. 02. 1992 and held its meeting only after the interim stay was vacated in June, 1995. ( 19 ) MR. Jayant Bhushan has drawn our attention to the proceedings dated 05. 10. 1995 for the purpose of showing that the respondents had all along been taking up cases of the petitioners. 02. 1992 and held its meeting only after the interim stay was vacated in June, 1995. ( 19 ) MR. Jayant Bhushan has drawn our attention to the proceedings dated 05. 10. 1995 for the purpose of showing that the respondents had all along been taking up cases of the petitioners. ( 20 ) THE learned counsel would contend that having regard to the fact that number of years had passed, the quota and rota must be held to have broken down and in a case of this nature, the Court should not insist upon adherence to the said rules keeping in view the grave injustice that may be done to the official respondents. Reliance in this connection has been placed on Direct Recruit Class II engineering Officers Association v. State of Maharashtra and Ors (1990) 2 SCC 715 . ( 21 ) ACCORDING to the learned counsel that quota of 33-1/3% could not be filled up for reasons beyond the control of the respondents, and, thus, the seniority of the unofficial respondents would not be disturbed. Reliance in this connection has been placed on P. S. Mahal and Ors. v. Union of India and Ors. , (1984) 4 SCC 545 and Suraj Prakash Gupta and Ors. v. State of Jandk and Ors. (2000) 7 SCC 561 . ( 22 ) MR. G. D. Gupta, the learned counsel appearing on behalf of the respondents, on the other hand, would submit that the petitioners cannot claim seniority prior to the date of their entry in the said cadre. It was submitted that 1988 rules were implemented only in the year 1994, and in that view of the matter, the petitioners cannot claim seniority prior to the date of merger. ( 23 ) THE learned counsel would contend that the period of ad hoc service cannot be counted for the purpose of counting seniority. Reliance in this connection has been placed on M. K. Shanmugam s case (Supra ). ( 24 ) THE core question, which arises for consideration in this writ petition is as to whether the petitioners herein should have been granted promotion with retrospective effect as no promotion had been made for a period of 6 years in Grade ii of ITS although similar benefit had been given to the private respondents by holding four regular DPCs during the said period. ( 25 ) IT is not in dispute that in terms of the statutory rules of ITS, as noticed hereinbefore, 66-2/3% of Grade II posts are to be filled up by way of promotion from Grade III service and 33-1/3% of the posts by way of promotion from amongst controller / enforcement officer / export promotion officers. ( 26 ) AS the petitioners were appointed as far back as in the year 1983-84, they were eligible for promotion in the year 1992. Admittedly, the ITS was constituted by a notification dated 20. 12. 1988 in terms whereof the Export promotion Cadre of the Ministry of Commerce, to which the petitioners belong, was merged with CTS. ( 27 ) ACCORDING to the petitioners, they were transferred to the Cadre of ITS in the year 1992, whereas according to the respondents, the merger took place by an order dated 17. 08. 1994, which is to the following terms :- no. A-42011/37-E. I government of India ministry of Commerce new Delhi, the 17/08/1994 order sub : Merger of EP Cadre Offices of Ministry of commerce at port offices with IETC organisation. A Committee was set up in the Ministry of commerce to study the existing structure of the Export promotion Cadre in the Ministry of Commerce, functions allotted to it, developments that have taken place after the inception of this cadre, its present role and to suggest changes to streamline its functioning and better cadre management. 2. As a follow-up on the recommendations of the committee relating specifically to the structure and functioning of Export Promotion Offices at ports, viz. Bombay, Calcutta, Madras, Emakulam etc. and the discussions held in the meeting chaired by Shri Ashok kumar, Joint Secretary, on 9/08/1994, the posts borne on the strength of these offices alongwith their incumbents, as per the details in Annexure I to II to this Order are hereby transferred to the O/o DGFT, new Delhi. 3. The above offices are already functioning under the administrative control of the Joint Director generals, Foreign Trade/deputy Director Generals, foreign Trade incharge of Import Export Trade (IETC) Offices at the respective ports in terms of memorandum no. I-34/47/79-Oandm dated 2 6/12/1979 (Copy enclosed for ready reference ). 4. The transfer of the posts and incumbents as reflected in the Annexures would be subject to the following arrangement : 1. I-34/47/79-Oandm dated 2 6/12/1979 (Copy enclosed for ready reference ). 4. The transfer of the posts and incumbents as reflected in the Annexures would be subject to the following arrangement : 1. Export Promotion Officers : 5 posts of Export Promotion Officers would be kept intact and the remaining 2 should be abolished. 2. Technical Assistants : technical Assistants are to be bracketed with existing posts of Licensing Assistants for promotion to the post of section heads. 3. Stenographers, UDCs, LDCs and Group d employees will be absorbed in the respective establishments of DGFT against future vacancies. Till such time the absorption process is completed, the incumbents will be on additional temporary strength of the organization. Sd/- (K. S. Mallick) deputy Secretary to the Govt. of India ( 28 ) HOWEVER, a bare perusal of the said order would show that the same referred to the Officers, who had been working at port offices with ITS organisations. ( 29 ) THERE exists a controversy as to how and in what manner the Officers, who were posted at port offices, were adjusted, but with that we are not concerned at this stage. The merger of the Cadre takes place when an order is issued in this regard. ( 30 ) IT is not in dispute that an amendment in Rule 8d of the Rules of 1977 was effected on 20. 12. 1988 whereby and whereunder 33-1/3% of the posts were to be filled up by promotion on the basis of selection of controller / enforcement officers / export promotion officers. Petitioners, indisputably, on issuance of the said notification dated 20. 12. 1988 came in CTS. ( 31 ) AS the petitioners at all material times had been working in the ministry of Commerce, for all intents and purposes, they became members of ITS, group a w. e. f. 20. 12. 1988. It may not, thus, in our opinion, be correct to contend that the Cadre was merged only w. e. f. 17. 08. 1994, which, it will bear repetition to state, was in relation to the officers, who were posted in different ports. ( 32 ) HAVING regard to the quota rota rule, can it be said that the petitioners were not entitled to consideration for promotion as far back as in the year 1992? The answer to the said question must be rendered in affirmative. ( 32 ) HAVING regard to the quota rota rule, can it be said that the petitioners were not entitled to consideration for promotion as far back as in the year 1992? The answer to the said question must be rendered in affirmative. ( 33 ) ON or about 25. 02. 1992, cases of the petitioners were referred to upsc for their promotion stating :- no. A-12023/5/92-E. I government of India ministry of Commerce new Delhi, the 25/02/1992 to the Secretary, upsc, dholpur House, new Delhi (Attention : Shri D. Sivarajan, Under Secretary) subject : DPC to consider selection of Officers for promotion to Grade II of CTS from the feeder grade of controller/eo and EPO on selection basis (33-1/3% of vacancies ). Sir, i am directed to say that there are 24 vacancies (18 existing and 6 anticipated) in Grade II of CTS under this Ministry to be filled on regular basis by promotion. 2. Under the Central Trade Service (Group, a ) rules, 1977 as amended from time to time, 66-2/3% of the vacancies in the Grade II of CTS are required to be filled by promotion on the basis of non-selection of grade III Officers of the service (Asstt. CCI and E) with 4 years regular service in the grade and 33-1/3% vacancies are required to be filled by promotion on the basis of selection of Controller of Imports and Exports, enforcement Officer and Export Promotion Officer with 8 years regular service in the respective grades. 3. The present proposal relates to filling up of 8 vacant posts (6 existing and 2 anticipated) in Grade II of CTS earmarked for promotion from these three grades on selection basis. The DPC proforma duly filled in along with up-to-date copy of recruitment rules is sent herewith. It is requested that the time and date convenient to the member UPSC who will preside over the meeting of the DPC, may kindly be communicated to this Ministry at an early date. The cr dossiers of the eligible officers are being collected and will be sent shortly. 4. In this connection, it is also stated that the CTS officers Association had filed a Miscellaneous petition no. 1577 of 1990 in OA No. 1603 of 1989 before the cat, Principal Bench, New Delhi and the Hon ble tribunal passed the following order :- "the respondents may file reply within ten days. 4. In this connection, it is also stated that the CTS officers Association had filed a Miscellaneous petition no. 1577 of 1990 in OA No. 1603 of 1989 before the cat, Principal Bench, New Delhi and the Hon ble tribunal passed the following order :- "the respondents may file reply within ten days. List for further directions on 29. 8. 91. In the meanwhile the respondents shall not make any appointment to the Grade II posts of the cts service. " the Tribunal has fixed 10. 3. 92 for further hearing of the case. Yours faithfully, (Jagat Ram) under Secretary to the Govt. of India) ( 34 ) THE order, which allegedly came in the way of the petitioners for being considered for promotion by UPSC was an order of stay passed by the tribunal in O. A. No. 1125 of 1990 whereby and whereunder the respondents were directed not to pass any final order. ( 35 ) UPSC, thus, committed an illegality in refusing to accede to the request of the respondents in considering the petitioners cases for promotion in terms of its letter dated 08. 09. 1992, which is in the following terms :- union PUBLIC SERVICE COMMISSION (SANGH LOK SEVA AYOG) dholpur HOUSE, SHAHJAHAN ROAD new Delhi-110011 8-9-92 to, the Secretary to the Govt. of India, ministry of Commerce, o/o the Chief Controller of Imports and Exports, udyog Bhawan, new Delhi. (By name to Shri A. Sen, asstt. Chief Controller of Imports and Exports) subject : DPC to Consider selection of officers for promotion to Grade-11 of CTS from the feeder grade of controller/e. O. /e. P. O. on selection basis (33. 1/3% of vacancy) regarding. Sir. I am directed to refer to your letter No. A. 12023/5/92/e-I/admn. G-II/5 dated 12. 08. 92 on the above subject and to say that is observed from the cat s interim order dated 5. 06. 92 that during the pendency of application filed by the CTS officers association regular appointments to grade-II posts cannot be made. It is, therefore, requested that as and when regular appointments are to be made, a self-contained proposal may be made for Commission s consideration. In the meantime the proposal is treated as closed at this end. 06. 92 that during the pendency of application filed by the CTS officers association regular appointments to grade-II posts cannot be made. It is, therefore, requested that as and when regular appointments are to be made, a self-contained proposal may be made for Commission s consideration. In the meantime the proposal is treated as closed at this end. Yours faithfully, (Smt. B. Thyagarajan) deputy Secretary) tele: 387358 ( 36 ) THE respondents again began the said exercise in October, 1995, but no action was taken thereupon and proposals had only been sent in the year 1996. ( 37 ) IN the aforementioned situation, the petitioners had been granted promotion on an ad hoc basis. ( 38 ) IT is not in dispute that no vacancies as have been earmarked for 33 1/3% quota in the seniority list was filled up in the years 1990, 1991, 1992 and 1993. The vacancies as was obtaining in the said quota up to 1995 is as follows :- "year-wise break up of the number of regular vacancies indicated in column 7 of item 3 (as required vide MHA OM No. 22011/3/76 - Estt. (D) dated 24. 12. 80 ). Note :- Regular vacancy means as defined in Section iv of the DOP and AR OM. No. 22011/6/ 75 - Estt. (D) dated 30. 12. 76. " ( 39 ) THE said vacancies were sought to be filled up till the DPC was held in 1998. It may be noticed that the respondents had promoted 26 Officers w. e. f. 24. 12. 1996 in their order dated 27. 12. 1996 amongst them the promotions have been granted to the unofficial respondents herein, namely, Shri Satyen Sharda, Shri Amiya chandra, Shri Tapan Majumdar and Shri O. P. Hisaria. ( 40 ) WOULD the petitioners suffer because of delay of 6 years in holding of dpc? The answer to the said question must be rendered in negative. The unofficial respondents, who were having their own quota of 66 2/3% and the petitioners in the matter of inter-se seniority could not have been treated differently. If an injustice has been done to them for no fault of theirs, there may not be any reason as to why fair and equitable justice would not be meted out to them, particularly when they had an existing right therefor. ( 41 ) IN Union of India and Ors. If an injustice has been done to them for no fault of theirs, there may not be any reason as to why fair and equitable justice would not be meted out to them, particularly when they had an existing right therefor. ( 41 ) IN Union of India and Ors. v. N. R. Banerjee and Ors. , 1997 SCC (Lands) 1194 the Apex Court has clearly held that in case of failure to convene DPC, a certificate is required to be issued by the department that no eligible persons were available therefor and/or there was no vacancy. ( 42 ) IN Union of India and Ors. v. Vipun Chandra Hira Lal Shah, 1997 SCC (Lands) 41 : (1996) 6 SCC 721 , it was stated :- "13. Therefore, while upholding the judgment of the tribunal that the respondent is entitled to seek fresh consideration on the basis that the selection should be made for vacancies occurring in each year separately, but in substitution of the directions given by the tribunal in that regard, the following directions are given :- (1) The number of vacancies falling in the quota prescribed for promotion of State Civil Service officers to the Service shall be determined separately for each year in respect of the period from 1980 to 1986. (2) The State Civil Service officers who have been appointed to the Service on the basis of the impugned Select List of December, 198 6/01/1987 and were senior to the respondent in the State Civil service shall be adjusted against the vacancies so determined on year-wise basis. (3) After such adjustment if all the vacancies in a particular year or years are filled by the officers referred to in para (2), no further action need be taken in respect of those vacancies for the said year/years. (4) But, if after such adjustment vacancy/vacancies remain in a particular year/years during the period from 1980 to 1986, notional Select List/lists shall be prepared separately for that year/years on a consideration of all eligible officers falling within the zone of consideration determined on the basis of the vacancies of the particular year. (4) But, if after such adjustment vacancy/vacancies remain in a particular year/years during the period from 1980 to 1986, notional Select List/lists shall be prepared separately for that year/years on a consideration of all eligible officers falling within the zone of consideration determined on the basis of the vacancies of the particular year. (5) If the name of the respondent is included in the notional Select List/lists prepared for any particular year/years during the period 1980 to 1986 and if he is so placed in the order of merit so as to have been entitled to be appointed against a vacancy of that particular year, he be appointed to the Service against that vacancy of that year with all consequential benefits. (6) The vacancy against which the respondent is so appointed would be adjusted against the subsequent vacancies falling in the promotion quota prescribed for the State Civil Service officers. (7) Such appointment of the respondent would not affect the appointments that have already been made on the basis of the impugned Select List of december, 198 6/01/1987. ( 43 ) IT is not in dispute that in the facts and circumstances of this case, such vacancies were available and UPSC did not hold its meetings only because of a purported order of stay. We do not find any logic as to why despite the written advice of Department of Personnel and Training (in short, dopt ), why year-wise panel could not be prepared. ( 44 ) IT is also not in dispute that there does not exist any statutory rule for determination of inter-se seniority and thus the instructions given by DOPT are required to be followed. The consolidated instruction was given by DOPT on 22. 12. 1959. A clarification thereof dated 07. 02. 1990 is as follows :- "no. 20020/4/89 - Estt. (O) government of India, ministry of Personnel, Public Grievances and Pensions, department of Personnel and Training new Delhi, the 7. 2. 1990 office MEMORANDUM sub:- Inter-se-seniority of promotees from more than one feeder grades-Clarification regarding. The undersigned is direct to refer to M. H. A. O. M. No. 9 /11 / 55 - RPS dated 22. 12. 20020/4/89 - Estt. (O) government of India, ministry of Personnel, Public Grievances and Pensions, department of Personnel and Training new Delhi, the 7. 2. 1990 office MEMORANDUM sub:- Inter-se-seniority of promotees from more than one feeder grades-Clarification regarding. The undersigned is direct to refer to M. H. A. O. M. No. 9 /11 / 55 - RPS dated 22. 12. 1959 on the above subject and to say that the following clarification has been given therein: "general Principle 5 (ii) : Illustration; Where 75 % of the vacancies in the grade of Head Clerk are reserved for promotion from the grade of Upper division Clerk and 25% from the grade of storekeeper shall be arranged in separate lists with reference to their relative seniority in those grades, the DPC will make selection of three candidates from the list of UDC and 1 from the list of Store keeper. Thereafter, the selected persons from each list shall be arranged in a single list in a consolidated order or merit assessed by the DPC which will determine the seniority of the persons on promotion to the higher grade. " 2. The illustration referred to above relates to a situation where promotion is made by single DPC from more than one stream and by selection. This principle cannot be applied to cases where there is a separate DPC for promotion from either stream and the method of selection from either stream may also vary. It is clarified that in such cases the principle of rotation of vacancies between different streams will have to be followed and not general principle 5 (ii) referred to above. For instance, if promotion to a grade is made 50 % from Grade a and 50 % from Grade b through separate DPCs, vacancies in the promotion quota may be filled in the order, a1, B1, A2, B2, A3, etc. assuming that A1, A2, A3 are the candidates included in the select list of a and "b 1 and b 2 are those included in the select list of Grade b . 3. It is requested that this clarification may be brought to the notice of all concerned for guidance / compliance. Sd/- (M. L. KESAVAN) director" ( 45 ) PARA 2 of the aforesaid clarification dated 07. 02. 1990 clarifies the said position. 3. It is requested that this clarification may be brought to the notice of all concerned for guidance / compliance. Sd/- (M. L. KESAVAN) director" ( 45 ) PARA 2 of the aforesaid clarification dated 07. 02. 1990 clarifies the said position. ( 46 ) IT was not a case where it can be said that the rota quota system had completely broken down. The same could not be followed because of an order of stay issued by the learned Tribunal. In that situation, the principle actus curaie nemeanim gravavit would apply. ( 47 ) WHERE the rota quota system did not completely break down, the court normally would insist upon filling up posts in terms thereof. It is one thing to say that in a particular year, there does not exist any vacancy or eligible persons, therefor, are not available, but it is another thing to say that although vacancies exist and eligible persons for consideration are available, the posts had not been filled up ( 48 ) IN Nirmal Chandra Bhattacharya v. Union of India, 1991 (1)SLR763 it has been stated :- "if the department would have proceeded with the selection well within time and would have completed it before 1/08/1983, the appellant would have become Ticket Collector without any difficulty. The mistake or delay on the part of department, therefore, should not be permitted to recoil on the appellant. " ( 49 ) SENIORITY is a civil right, but where such seniority affects further promotion, if persons eligible therefor are not considered for promotions in the manner laid down under the law, their right under Article 16 be violated. ( 50 ) IN Ajit Sinsh (II) and Ors. v. State of Punjab and Ors. , JT 1999 (7) SC 153 the Apex Court has held :- "22. Article 14 and Article 16 (1) are closely connected. They deal with individual rights of the person. Article 14 demands that the "state shall not deny to any person equality before the law or the equal protection of the laws". Article 16 (1) issues a positive command that "there shall be equality of opportunity for all citizens in the matters relating to employment or appointment to any office under the State". It has been held repeatedly by this Court that sub-clause (1) of article 16 is a facet of Article 14 and that it takes its roots from Article 14. Article 16 (1) issues a positive command that "there shall be equality of opportunity for all citizens in the matters relating to employment or appointment to any office under the State". It has been held repeatedly by this Court that sub-clause (1) of article 16 is a facet of Article 14 and that it takes its roots from Article 14. The said sub-clause particularizes the generality in Article 14 and identifies, in a constitutional sense "equality opportunity" in matters of employment and appointment to any office under the State. The word employment being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16 (1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be "considered" for promotion. Equal opportunity, here means the right to be "considered" for promotion. If a person satisfied the eligibility and zone criteria but is not considered for promotion. Then there will be a clear infraction of his fundamental right to be "considered" for promotion, which is his personal right. "