JUDGMENT 1. - The petitioner has preferred this writ petition with a prayer that she may be promoted on the post of Associate Professor in the year 1989 and accordingly her salary may be fixed in the pay-scale Rs. 3700-5000. She has further claimed that her case may be considered for promotion on the post of Professor at least from 1-7-1995 when Professor Sh. Ved Prakash was retired on attaining age of superannuation. She has also claimed all consequential benefits. 2. In the year of 962 the petitioner was initially appointed as Physician in Government of Rajasthan. In the year 1976 National Institute of Ayurveda (for short Institute) was established and Ayurveda College of Jaipur was merged in it. Options were invited from the employees working in the College as to whether they would opt for the employment in the Institute. So far as petitioner is concerned she opted for services in the Institute. She after facing screening committee was absorbed as Demonstrator in the Institute in the Department of Gynaecology and Obstettrics. 3. Later on, in exercise of the powers conferred by Rule 17(v) of the Rules and Regulations attached to the Memorandum of Association, President of the Governing Body of the Institute framed the rules regulating recruitment and conditions of services of persons appointed to the service of the Institute, known as The National Institute of Ayurveda Services Rules, 1982 (for short the same may be referred to as Rules, 1982). It came into force with effect from 1-8-1982. Rule 10 of the Rules, 1982 states about determination of vacancies year-wise. Rule 11 states about source of recruitment and according to it recruitment to the posts in each division of the service shall be made by direct recruitment, promotion, deputation and transfer in the proportion as indicated in Column 5 of the Schedule-I. As per Schedule-1 the posts of Lecturer can be filled in 50% by direct recruitment and 50% by promotion from the posts of Demonstrator-cum-Clinical Registrar/Physician. The next higher posts are Assistant Professor, Associate Professor and Professor. Part VII of the Rules, 1982 provides procedure for recruitment by promotion. The Rules, 1982 have been amended time to time. 4. In the year 1985 some persons, junior to the petitioner were promoted as Lecturer on the basis of recommendations of Departmental Promotion Committee (for short D.P.C.), but the petitioner's name was not even considered. Part VII of the Rules, 1982 provides procedure for recruitment by promotion. The Rules, 1982 have been amended time to time. 4. In the year 1985 some persons, junior to the petitioner were promoted as Lecturer on the basis of recommendations of Departmental Promotion Committee (for short D.P.C.), but the petitioner's name was not even considered. She, therefore, submitted representation and entreated that she may also be given promotion on the post of Lecturer. The representation was accepted and vide order dated 12-8-1988 she was promoted as Lecturer. However, according to the petitioner promotion was granted with effect from the date when person junior to her were promoted. She again submitted representation and claimed her promotion with effect from the date when persons junior to her were so promoted. The representation was also accepted and vide order dated 24-4-1989 her date the promotion was treated as 2-5-1985. 5. The petitioner became entitled to promote on the post of Assistant Professor and Associate Professor, yet she was not promoted. Having no option she preferred a writ petition, being S.B. Civil Writ Petition No. 630/1991 Dr. Smt. Vijaya Laxmi v. Union of India & Ors., seeking directions to consider her case for promotion as Assistant Professor and Associate Professor from the date of meeting of the D.P.C. i.e. 12-8-1988. The writ petition was allowed on 25-6-1993 with following directions : "On the basis of the above discussion, this writ petition is allowed. Petitioner shall be deemed to have acquired 3 years experience on the post of Lecturer on 1-5-88. Respondents are directed to make year-wise determination of vacancies in accordance with Rule 10 of 1982 Rules for the posts of Assistant Professor and Associate Professor. The candidature of the petitioner shall be considered against yearly determined vacancies and if she is found entitled to be promoted against the vacancies of 1988-89, 1989-90 etc. she shall be so promoted with retrospective effect and be given all consequential benefits including consideration for promotion as Associate Professor against the promotion quota vacancies. Respondents are directed to undertake this exercise within a period of six months of the submission of certified copy of this order. Costs made easy." 6. Being aggrieved against the order dated 25-6-1993 the respondents preferred Special Appeal, being D.B. Civil Special Appeal (Writ) No. 580/94. However, same too was dismissed on 8-3-1995. In the meanwhile the petitioner filed Contempt Petition, No. 258/84. Costs made easy." 6. Being aggrieved against the order dated 25-6-1993 the respondents preferred Special Appeal, being D.B. Civil Special Appeal (Writ) No. 580/94. However, same too was dismissed on 8-3-1995. In the meanwhile the petitioner filed Contempt Petition, No. 258/84. On 20-2-1995 this Court passed following order : "...The judgment in question was passed on 25th July, 1993 and the respondents were required to comply with the directions within six months therefrom. Admittedly the directions were not comply with within the period specified and it has been stated that an appeal has been filed, but no stay has been granted therein. There being no stay against the judgment dated 25th July, 1993, passed by Mr. G. S. Singhvi, J. and the directions having not been complied with, contempt of Court appears to have been committed. Notice be, therefore issued to the respondent No. 1 for 13th March, 1995 to show cause as to why he should not (be) punished for having committed contempt of this Court." 7. The respondents instead of complying with the directions of this Court filed Special Leave Petition against the order dated 8-5-1995 before the Hon'ble Supreme Court, but the same was also dismissed. The respondents had submitted that the directions given by the High Court would be complied with within one month. The petitioner was, thereafter, promoted as Assistant Professor with effect from 12-8-1988 in the pay scale 2200-4000 and further vide an order dated 30-1-1996 she was promoted as Associate Professor with effect from 4-4-1992 in the pay scale 3000-4500. 8. The petitioner by this writ petition has now importuned that she ought to have been promoted as Associate Professor with effect from 1989 in place of 4-4-1992 and she may be fixed in the pay scale 3700-5000, applicable to Associate Professor. 9. Mr. M.D. Agarwal has oppugned the arguments taken up by Mr. S.B. Mathur, counsel for the petitioner and has submitted that directions of the Court have already been complied with and so far as promotion as Associate Professor with effect from 1989 and fixation of salary in the pay scale 3700-5000 is concerned the same cannot be granted to her, as she did not fulfill minimum eligibility criteria, prescribed in the Rules. The Rules, 1982 were amended in the years 1992, 1994, 1996 and 1997. The Rules, 1982 were amended in the years 1992, 1994, 1996 and 1997. Under the Revised Recruitment Rules of 1997 Rules 10(1) (2) (3) and 27(2) have been deleted and under Rule 28(2) of the Revised Recruitment Rules, promotion is to be made on the basis of merit- cum-seniority to the groups "A" and "B" and from Groups "C" and "D" posts, it will be on the basis of seniority-cum-merit. Rule 27, Schedule I, Column-5 provides criteria for the method of recruitment. As per the said Revised Recruitment Rules of 1997, the post of the Director is filled in by 100% direct recruitment and also posts of Professor or Associate Professor are to be filled-in by direct recruitment as per the said Rules of 1997. The petitioner's candidature for promotion to the post of Lecturer was considered on 7-3-1988 by the D. P. C. and on its recommendations the petitioner was promoted to the post of Lecturer w.e.f. 12-8-1988 and on her representation, it was decided to treat her promotion w.e.f. 2-5-1985. There was no post of Associate Professor lying vacant in promotion quota up to 2-4-1992 as Shri Ved Prakash Sharma was held the post of Assistant Professor w.e.f. 30-4-1985 in promotion quota. The other post was for the direct recruitment. Before 1989, the Department of Prasuti Stri Rog & Kumar Bharitya was under the department of Prasuti Tantra Stri Rog & Kumar Bharitya but the same was bifurcated vide an order dated 13-8-1989 and later on vide order dated 27-1-1995 bifurcation was cancelled. All the persons who were promoted at the time either on 3-4-1992 or on 4-4-1992 were allowed pay-sacle of Rs. 3000-4500. Subsequently, the Rules 1982 were amended w.e.f. 8-10-1993 and higher pay scale was provided with certain conditions, which are as under : (i) P. G. Qualification in Ayurveda recognised by CCIM; (ii) 6 years regular service in the pay-scale of Rs. 3000-4500; or (iii) 10 years combined service in the pay scale of Rs. 2200-4000 and above. 10. It was made clear that existing holder of post on a regular basis on the date of issuance of the order will be eligible for promotion even if he does not possess P.G. Qualification. However, he will be entitled for promotion to a scale of Rs. 3000-5000. 2200-4000 and above. 10. It was made clear that existing holder of post on a regular basis on the date of issuance of the order will be eligible for promotion even if he does not possess P.G. Qualification. However, he will be entitled for promotion to a scale of Rs. 3000-5000. Since the petitioner was not a graduate and also was neither having 10 years experience in the scale of Rs. 2200-4000 nor was having 6 years experience in the scale of Rs. 3000-4500 on 4-4-1992. She was promoted to the post of Rs. 2200-4000 w.e.f. 12-8-1988 and Associated Professor w.e.f. 4-4-1992 in the scale of Rs. 3000-4500. As per notification dated 13-4-1994 she was allowed the lower grade of Rs. 3000-5000. Dr. Ved Prakash Sharma was retired on 30-6-1995 and consequently, the post of Professor in Prasuti and Kumar Bharity Vibhag was lying vacant. As per the amended N.I.A. Service Rules, 1997, the post of Professor in all the departments have been provided as selection post, as such, selection on the said post of Professor is to be made by the direct recruitment as per the amended service rules. It has also submitted by the respondents that even as per the prevailing Service Rules and the Rules of 1997, the post of Professor in Prasuti and Komarya that Vibhag was given to the direct recruitment quota after the retirement of Dr. Ved Prakash Sharma. As per the relevant Rules prevailing at the time of the post of Professor was to be filled in by 50% promotion and 50% by direct recruitment and in the Prasuti & Kumar Vrat Vibhag, there was only one post of Professor and the said one post was held as promotion post by Dr. Ved Prakash Sharma. After his retirement, as per the service Rules of 1982 as amended in 1994 it was gone to the direct quota. Consequently, the post of Professor was advertised. Prior to it from 8-10-1993 the minimum qualification for promotion on the post of Professor was as under : i) PG qualification in Ayurveda in the concerned subject recognised by C. C. I. M. ii) 5 years regular service in the scale of 3700-5000 as Associate Professor OR 8 years combined regular service as Associate Professor in the scale of 3000-4500 and above. NOTE : Existing holder of post on a regular basis on the date of this order will be eligible for promotion even if he does possess P.G. qualification. However, he will be entitled for promotion to a scale of 4100-5300. 11. The petitioner was not having 5 years regular service in the scale of Rs. 3700-5000 as Associate Professor or 8 years combined regular service as Associate Professor in the scale of Rs. 3000-4500 and above, as such, even if any promotion post of Professor would have been available, the petitioner could not be promoted on the post of Professor. There is no post of Professor in promotion quota, as such, there is no question to promote the petitioner on the post of Professor. It was also submitted that the post of Associate Professor in the promotion quota was available only in 1992 when Shri Ved Prakash Sharma was promoted on the post of Professor. The petitioner was rightly promoted on the said post on 4-3-1992. So far, as, the post of Professor is concerned no post was available in the promotion quota after the retirement of Dr. Ved Prakash Sharma who retired on 30-6-1995 and later on the post of Professor has gone to the direct quota. 12. I have considered the rival submissions of both the parties. 13. It is well settled law that an employee has no right to be promoted but he has a right to be considered for promotion and this right is one of the matters relating to employment or appointment within the meaning of Article 16 (1) of the Constitution of India. The condition relating to promotion and matters connected therewith are generally governed by the terms of the contract of service or statutory provisions or rules or executive instructions and even practice where applicable. If Rules governing the conditions of promotion are framed the same shall have primacy over any executive instructions or practice. In the present matter it has been argued by Mr. S. B. Mathur that the petitioner became entitled to be considered for promotion as Associate Professor in the year 1989 but Mr. M. D. Agarwal has controverted it and submitted that only one vacancy was available in promotion quota and against it Mr. Ved Prakash Sharma, being senior to the petitioner, was promoted. S. B. Mathur that the petitioner became entitled to be considered for promotion as Associate Professor in the year 1989 but Mr. M. D. Agarwal has controverted it and submitted that only one vacancy was available in promotion quota and against it Mr. Ved Prakash Sharma, being senior to the petitioner, was promoted. The Department of Prasuti Tantra Stri Rog and Kumar Bhartiya was bifurcated vide an order dated 13-8-1989 in two different departments, namely - (i) Prasuti Tantra Stri Rog and (ii) Kumar Bhartiya. Accordingly, the sanctioned posts were also bifurcated between these two departments and in this regard an order was passed on 18-11-1989. As per the same there were two sanctioned posts of Associate Professor and same were bifurcated between these two departments in equal portion, i.e. one for Prasuti Vibhag and one for Kumar Bhartiya. Though the order dated 13-8-1989 was withdrawn on 27-1-1995, it was in force from 13.8.1989 till 26-1-1995. Therefore, the rights created to any person in between 18-8-1989 till 26-1-1995 cannot be infringed and ignored. Shri Ved Prakash, who was senior to the petitioner, was transferred to Kumar Bhartiya Department and the petitioner remained in the Prasuti Vibhag. Thus, it is manifest that with effect from 13-8-1909 one post of Associate Professor was lying vacant in Prasuti Vibhag. Rule 10 of the Rules, 1882, which was also in operation at that time clearly states that in calculating the actual number of vacancies to be filled in by each method of recruitment on the basis of percentage prescribed in Schedule-I the Director shall adopt an appropriate cyclic order to correspond with the proportion laid down in the Schedule-I, by giving procedure to promotion quota over direct recruitment quota, wherever applicable. Similarly, Rule 37(b) states that two or more persons appointed in the service against the vacancies of a particular year, a person appointed by promotion shall be senior to a person appointed by direct recruitment in respect of the year of appointment. Thus, it is clear that one vacancy of Associate Professor of Prasuti Vibhag, which was lying vacant in the year 1989, could have been filled in by promotion. The petitioner being seniormost in Prasuti Vibhag was eligible and, therefore, her right of consideration for promotion could not have been curtailed. Thus, it is clear that one vacancy of Associate Professor of Prasuti Vibhag, which was lying vacant in the year 1989, could have been filled in by promotion. The petitioner being seniormost in Prasuti Vibhag was eligible and, therefore, her right of consideration for promotion could not have been curtailed. It is not a case of the respondent that in the year 1989 the post of Associate Professor in Prasuti Vibhag was not lying vacant. If the post of Associate Professor was lying vacant and the petitioner was eligible and was also having legitimate claim of consideration of promotion, then there is no valid reason as to why the petitioner's candidature was not considered for promotion as Associate Professor in the year 1989. The respondents stated that she was promoted as Associate Professor on 4-3-1992, when Mr. Ved Prakash was promoted as Professor and consequently the post of Associate Professor became vacant in promotion quota. But in fact in the year 1992 Prasuti Vibhag and Kumar Bhartiya were two different Departments and both were having different sanctioned posts, as is clear from order dated 18-11-1989. This fact has not been denied by the respondents in the reply. The petitioner was working as Head of Department in Prasuti Vibhag whereas Shri Ved Prakash was working as Associate Professor against promotion quota post is not sufficient. Once, Departments were bifurcated and accordingly posts were sanctioned it creates rights in favour of the persons working in respective Departments, which cannot be snatched by any subsequent order or by merging the Departments. Subsequently, even as per amended Rules, 1997 Rule 29 (2) of the same states that as far as possible, in the beginning of each year, Director shall initiate process for filling up posts required to be filled up by promotion for all the posts expected to become available and required to be filled up by promotion. The words "as far as possible" indicate that discretion has been conferred upon the authority to fill up the posts from promotion. It is also settled law that discretion has to be applied in fair and reasonable manner. It cannot be used in violation of Article 14 of the Constitution of India. The words "as far as possible" indicate that discretion has been conferred upon the authority to fill up the posts from promotion. It is also settled law that discretion has to be applied in fair and reasonable manner. It cannot be used in violation of Article 14 of the Constitution of India. The words "as far as possible" means if circumstances are beyond control or not filling the post will be in the interest of the Department or best eligible candidate is not available then Department is free to keep the promotion post vacant. However, respondents have not assigned any single reason as to why the post could not be filled in time. It is true that promotion is not a fundamental right but right to be considered for promotion is a fundamental right. Such a right brings within its purview an effective, purposeful and meaningful consideration. Suit ability or otherwise of the candidate concerned, however, must be left at the hands of the DPC, but the same has to be determined in terms of rules applicable at relevant point of time. Under these circumstances I am of the opinion that the candidature of the petitioner ought to have been considered for promotion on the post of Associate Professor with effect from 13-8-1989, as any subsequent amendment in the rules cannot be applied with retrospective effect. So far as promotion to the post of Professor is concerned the petitioner cannot get any benefit. It has been submitted that from 8-11-1993 Rules were amended and following qualifications were prescribed : (i) P. G. Qualification in Ayurveda in the concerned subject recognised by C. C. I. M. (ii) 5 years regular service in the scale of 3700-5000 as Associate Professor OR 8 years' combined regular service as Associate Professor in the scale of 3000-4500 and above. NOTE : Existing holder of post on a regular basis on the date of this order will be eligible for promotion even if he does not possess P. G. Qualification. However, he will be entitled for promotion to a scale of 4100-5300. 14. The petitioner was not having 5 years regular service in the scale of Rs. 3700-5000 as Associate Professor or 8 years combined regular service as Associate Professor in the scale of Rs. However, he will be entitled for promotion to a scale of 4100-5300. 14. The petitioner was not having 5 years regular service in the scale of Rs. 3700-5000 as Associate Professor or 8 years combined regular service as Associate Professor in the scale of Rs. 3000-4500 and above, as such, even if any promotion post of Professor would have been available, the petitioner could not be promoted on the post of Professor. There is no post of Professor in promotion quota, as such, there is no question to promote the petitioner on the post of Professor. It was also submitted that the post of Associate Professor in the promotion quota was available only in 1992 when Shri Ved Prakash Sharma was promoted on the post of Professor. Only one post of Professor was available in the Prasuti Vibhag including Kumar Bhartiya Department and against it Shri Ved Prakash was working, who retired on 30-6-1995. The petitioner could not have been promoted as she did not fulfill in the minimum qualification, as referred to above. Later on the post of Professor has gone to the direct quota. Thus, in my opinion the petitioner was not entitled to promote as Professor and, therefore, to this extent her prayer is not sustainable. 15. I am, therefore, allowing this writ petition part. The respondents are directed to consider the candidature of petitioner for promotion as Associate Professor with effect from 13-8-1989 and if she found eligible and suitable she should be promoted as Associate Professor with all consequential benefits. The respondents are further directed to consider her case for fixation in the pay scale 3700-5000 and if found eligible her salary may be fixed in the pay scale 3700-5000 with all subsequent fixation benefits. The prayer for promotion on the post of Professor is hereby rejected. No order as to costs.Petition partly allowed. *******