Judgment :- M. VENUGOPAL, J. The Appellant/Petitioner has preferred the present Writ Appeal as against the order dated 10.06.2009 in W.P.No.9355 of 2000 passed by the Learned Single Judge. 2. The Learned Single Judge, while passing the order in W.P.No.9355 of 2000 on 10.06.2009, has, among other things, observed that '... it is clear that the petitioner is far junior to the third respondent in the post of Assistant, which is the feeder category to the post of Superintendent. Hence, the claim of the petitioner was rightly rejected and the claim of the third respondent was considered by the second respondent and approved by the first respondent. Petitioner has not made out a case on merits to consider his claim for promotion to the post of Superintendent' and consequently, dismissed the Writ Petition without costs. 3. The Writ Petition averments [filed by the Appellant/ Petitioner]: (i) The Appellant/Petitioner joined the services of the 2nd Respondent/College, an aided institution, under the provisions of the Tamil Nadu Private Colleges Regulation Act No. XIX of 1976 and the Tamil Nadu Private Colleges (Regulation) Rules, 1976, as Library Assistant with effect from 01.08.1974. Subsequently, he was promoted as Laboratory Assistant with effect from 20.07.1987. (ii) According to the Appellant/Petitioner, the next avenue of promotion from the post of Laboratory Assistant is to the post of Junior Assistant subject to the qualification that a candidate should pass the account test. He qualified himself eligible for promotion to the post of Junior Assistant by passing the account test for Subordinate Officer Part I, in November 1990 itself. When he was qualified to be promoted as Junior Assistant, there was no vacancy in the post of Junior Assistant. Therefore, he was waiting for the regular vacancy to fall in the post of Junior Assistant. But the 3rd Respondent was appointed as Typist from 13.01.1988 and even at the time of joining the services of the 2nd Respondent, the 3rd Respondent was not qualified herself to be promoted as the Junior Assistant as she herself had not passed the account test. (iii) On the retirement of Malaisudumerumal with effect from 29.02.1992, there was a regular vacancy falling to the post of Assistant. In the regular post of Junior Assistant, there was no qualified and suitable candidate available for filling up the vacancy by promotion from the feeder category, viz., the Junior Assistant Post. (iii) On the retirement of Malaisudumerumal with effect from 29.02.1992, there was a regular vacancy falling to the post of Assistant. In the regular post of Junior Assistant, there was no qualified and suitable candidate available for filling up the vacancy by promotion from the feeder category, viz., the Junior Assistant Post. However, on 01.03.1992, when the regular vacancy arose in the post of Assistant, he was qualified to be promoted to the said post of Assistant, as he was eligible for promotion having passed the account test and maintaining the other qualification to the post of Assistant. (iv) The 2nd Respondent had not filled up the vacancy, by considering the names of the eligible candidate from the feeder category to the post of Junior Assistant, which in turn, would be the feeder category to the post of Assistant. (v) The Director of Collegiate Education, by proceedings dated 27.03.1991, clarified that while filling the post of Junior Assistant, the seniority of the persons working in the feeder category should be taken into account from the date of first appointment and meaning thereby that the seniority from the date of first appointment to the feeder categories mentioning G.O.Ms.No.11 dated 01.04.1989 alone should be taken into account. (vi) After quoting G.O.Ms.No.11 dated 01.04.1989, it was stated that irrespective of the scales of pay to the post of Junior Assistant in a Private College, the posts should be filled up from the persons working in the category of Record Clerks, Library Assistant, Laboratory Assistant, Museum Keepers, Herbarium Keepers and Mechanics in a similar time pay of scale in the same college on seniority basis as per Rule 11(4)(i) and an illustration was also given (e.g.) the seniority of a person who is now working as Laboratory Assistant and who was promoted from the post of Record Clerk should be determined from the date of his appointment in the cadre of Record Clerk. (vii) As on 01.03.1992, when there was an existing vacancy to the post of Assistant and in the absence of any suitable candidate available in the post of Junior Assistant, himself, having acquired all the qualifications to hold the post of Junior Assistant, should have been promoted as the Assistant with effect from 01.03.1992. (vii) As on 01.03.1992, when there was an existing vacancy to the post of Assistant and in the absence of any suitable candidate available in the post of Junior Assistant, himself, having acquired all the qualifications to hold the post of Junior Assistant, should have been promoted as the Assistant with effect from 01.03.1992. (viii) The 2nd Respondent, mala fide and for obvious reasons, had not filled up the regular vacancy in the approved post, and he was waiting for the 3rd Respondent to make her eligible and qualify for the promotion to the post of Junior Assistant and immediately when she passed the account test in the month of November 1992, promoted her as the Assistant with effect from 16.06.1994. (ix) He made representations to the 2nd Respondent to promote him as Assistant. But the 2nd Respondent was waiting for the 3rd Respondent to acquire the qualification in the first feeder category. He protested against the appointment of the 3rd Respondent and for promotion to the post of Assistant from the post of Typist. He was promoted as Junior Assistant with effect from 13.01.1995 and thereafter as Assistant with effect from 03.08.1995. (x) In regard to the promotion to the post of Superintendent, there was a regular vacancy falling to the post of Superintendent, when the regular incumbent retired on 31.10.1998. The said post of Superintendent being the promotional post, the promotion was to be made from the feeder category from the post of Assistant. (xi) In regard to the Assistants, he was the senior most candidate, but the 3rd Respondent is only a Junior to him in all respects and for an easier verification, the same is set out in tabular column as under: (xii) On account of the Appellant/Petitioner's seniority, as one first qualified to become the senior in the feeder category as the Lab Assistant and also qualifying himself and passing the account test, in November 1990 itself, and when all other qualifications being equal, on account of his seniority in all respects, he should have been promoted to the post of Superintendent, in preference to the 3rd Respondent. (xiii) He made a representation to the 1st Respondent on 16.11.1998, when the post of Superintendent fell vacant on 31.10.1998, even before the 2nd Respondent could approve the appointment of the 3rd Respondent by the 2nd Respondent. (xiii) He made a representation to the 1st Respondent on 16.11.1998, when the post of Superintendent fell vacant on 31.10.1998, even before the 2nd Respondent could approve the appointment of the 3rd Respondent by the 2nd Respondent. (xiv) On 03.08.1999, the 1st Respondent approved the promotion of the 3rd Respondent as per proceedings in M.M.No.803/E2/99, dated 03.08.1999, even without informing as to why his request was turned down. He filed a Writ Petition in W.P.No.15329 of 1999 to quash the order dated 03.08.1999 promoting the 3rd Respondent to the post of Superintendent of the 2nd Respondent College and to consider his name for promotion with effect from 01.11.1978 with all benefits. (xv)On 16.09.1999, this Court passed a final order in the said Writ Petition, inter alia, directing the 1st Respondent to consider and pass orders on appeal/representation submitted by the Writ Petitioner on 16.11.1998 and 08.02.1999 within a period of six months from the date of communication of the order. Further, necessary opportunity was directed to be provided with 2nd and 3rd Respondents when the 1st Respondent decided the Petitioner's appeal/representation on merits and according to law, without being influenced with any of the observation made therein. The 1st Respondent on 08.02.2000 rejecting his memorandum of appeal. 4.Counter Affidavit of the 2nd Respondent/College: (i) According to the 2nd Respondent/College, the 3rd Respondent was appointed on 13.01.1988 as Typist. She passed S.S.L.C., Typewriting Lower and Higher both English and Tamil, Account Test Part-I, District Official Manual Test at that time. The post of Typist is equivalent to Junior Assistant. The 3rd Respondent was promoted as Assistant on 16.06.1994. Again she was promoted as Superintendent from 02.11.1998 which was approved by the Department. (ii) The Appellant/Petitioner was appointed as Attender cadre on 01.08.1974. Subsequently, he was promoted as Lab Assistant on 20.07.1987. He was promoted as Junior Assistant on 21.05.1995. Later, he was promoted as Assistant on 03.08.1995. The scale of pay for Lab Assistant is Rs.3,050-75-3950-100-4590. The scale of pay for Junior Assistant is Rs.3200-85-4900. The scale of pay for Assistant is Rs.4000-100-6000. The 3rd Respondent was promoted as Superintendent based upon cadre seniority in the Assistant cadre. She possessed experience of 4 years and 5 months as Assistant as on 02.11.1998. But the Appellant/Petitioner possessed experience of 3 years and 3 months as Assistant as on 03.11.1998. The scale of pay for Assistant is Rs.4000-100-6000. The 3rd Respondent was promoted as Superintendent based upon cadre seniority in the Assistant cadre. She possessed experience of 4 years and 5 months as Assistant as on 02.11.1998. But the Appellant/Petitioner possessed experience of 3 years and 3 months as Assistant as on 03.11.1998. The 3rd Respondent, being senior in the Assistant Cadre, was promoted to the post of Superintendent. (iii) The Appellant/Petitioner could not be appointed in the retirement vacancy of Malaisudumperumal for the reason that the said post was surplus at that time. Moreover, the Appellant/Petitioner was only a Laboratory Attender and he could not be promoted as Assistant. (iv) The Appellant/Petitioner had not challenged the promotion given to him on 20.01.1995 and 03.08.1995 and was receiving the salary for the said post. The Appellant/Petitioner was junior to the 3rd Respondent in the cadre of Assistant. On the basis of cadre seniority Assistant, the 3rd Respondent was promoted as Superintendent from 01.11.1998. 5. Counter Averments of the 3rd Respondent: (i)She passed S.S.L.C. Typewriting Lower and Higher both English and Tamil, Account Test part-I, District Office Manual Test. She was appointed as Typist in the 2nd Respondent College on 13.01.1988 which is equivalent to Junior Assistant Post and further she was promoted as Assistant on 16.06.1994 and from 02.11.1998 she was promoted as Superintendent and the same was also approved. She draws salary as Superintendent from 02.11.1998. On the date when she was appointed as Typist i.e. on 13.01.1988 the Writ Petitioner was serving as Lab Assistant which is lower in cadre than the post of Typist. The Typist post is equivalent to Junior Assistant post. As such, she and the Appellant/Petitioner could not be treated as equals, since they were holding the posts in different cadres at the relevant point of time i.e. on 13.01.1988. (ii) For the post of Junior Assistant, Account Test is not required. For the post of Assistant, the Account Test Part-I is required. The Appellant/Petitioner became Junior Assistant in the year 1995 and she became Junior Assistant as early as on 13.01.1988 and promoted as Assistant from 16.06.1994 (i.e.) even before the Appellant/Petitioner was promoted as Junior Assistant and she was promoted as Superintendent from 02.11.1998. (iii) It is true that a retirement vacancy had arisen on 29.02.1992 due to the retirement of Malaisudumperumal. (iii) It is true that a retirement vacancy had arisen on 29.02.1992 due to the retirement of Malaisudumperumal. The said vacancy could not be filled up by the Management because of the reason that the said post became surplus on the ground of fall in strength, as per G.O.No.1191 dated 2.9.1989 and the proceedings of the Director of Collegiate Education dated 31.10.1989. Further, on the said date, the Petitioner was only a Laboratory Attender and it is not a feeder category for the promotion post of Assistant. Assistant vacancy arose in the College due to the retirement of M.Paramasivam and in that place, he was promoted as Assistant by an order dated 01.08.1995. (iv) The directions of the Director of Collegiate Education dated 27.07.1991 giving clarification for promotion is in respect of filling up the post of Junior Assistant, from the post of Peon, Record Clerk having lesser qualifications and like that of Gardener etc., were of no relevance to the facts and circumstances of the present case. The Appellant/Petitioner never challenged the promotion given to him in the year 1995 and further promotion was given to the post of Assistant in August 1995 and he received the salary. (v) The Appellant/Petitioner is not at all senior in the cadre of Assistant as his promotion was from 03.08.1995. But the 3rd Respondent was promoted as Assistant from 16.06.1992. Just because the Appellant/Petitioner was senior in age and appointed in the lower post prior to 3rd Respondent, he could not claim promotion as a matter of right as cadre wise seniority as the criteria for giving further promotion. As such, the tabular column depicted by the Appellant/ Petitioner was of no relevance. (vi) The Appellant/Petitioner was not a Junior Assistant claiming promotion as even assuming without admitting that there was a vacancy on 28.02.1992. The want of vacancy was admitted by the 2nd Respondent and the 1st Respondent. Even in retirement vacancy would be filled up automatically has no relevance. It is the discretion of the selecting authority to give promotion to choose their own method. The order of the 1st Respondent was a speaking one assigning all reasons. The Contentions of the Appellant/Petitioner: 6. Even in retirement vacancy would be filled up automatically has no relevance. It is the discretion of the selecting authority to give promotion to choose their own method. The order of the 1st Respondent was a speaking one assigning all reasons. The Contentions of the Appellant/Petitioner: 6. The Learned Counsel for the Appellant/Petitioner submits that the Learned Single Judge ought to have applied the terms contained in G.O.Ms.No.11 dated 01.04.1989, to hold that when the Appellant was treated to be a Junior Assistant even in the year 1987, his name was entitled to be considered for promotion to the post of Superintendent. 7. It is the contention of the Learned Counsel for the Appellant/ Petitioner that as on the date when 3rd Respondent was promoted as the Junior Assistant, the Appellant was considered to be Junior Assistant and so, when the Appellant was also the Junior Assistant and promoted to the post of Laboratory Assistant, his post equivalent to the post of Junior Assistant and as such, the 3rd Respondent could not be held to be senior to the Appellant. 8. The Learned Counsel for the Appellant/Petitioner contends that the Learned Single Judge failed to appreciate that when the 3rd Respondent was promoted to the post of Junior Assistant, there was no need to challenge her appointment, inasmuch as he was already holding the post of Laboratory Assistant equivalent to the post of Junior Assistant. As such, he alone is entitled to be considered for promotion to the post of Superintendent, being senior. 9. The contention of the Learned Counsel for the Appellant/ Petitioner is that difference in the scales of pay between Laboratory Assistant and the Junior Assistant could not be a ground to treat the Appellant/Petitioner differently, especially when, under the relevant Rules, the post of Laboratory Assistant was directed to be equivalent to the post of Junior Assistant. 10. The plea taken by the Appellant/Petitioner is that he had not challenged the promotion of the 3rd Respondent to the post of Assistant and further he could not seek to challenge the promotion of the 3rd Respondent to the post of Superintendent, as, in law, there was no estoppel or acquiescence. 11. 10. The plea taken by the Appellant/Petitioner is that he had not challenged the promotion of the 3rd Respondent to the post of Assistant and further he could not seek to challenge the promotion of the 3rd Respondent to the post of Superintendent, as, in law, there was no estoppel or acquiescence. 11. Yet another submission of the Learned Counsel for the Appellant/Petitioner is that the Learned Single Judge should have seen that the 2nd Respondent declined to consider his name based on the reason that the post of Assistant was not a feeder category and when the 2nd Respondent had misled the Appellant, it was not open to the 2nd Respondent to claim that the Appellant had not challenged the promotion of the 3rd Respondent as he is estopped from claiming this post. 12. The Learned Counsel for the Appellant/Petitioner projects an argument that the Learned Single Judge had not referred to the promotion of one K.David and P. Gopalakrishnan as Assistants on 26.06.1992 against his own claim that the strength of students was not sufficient. 13. It is the contention of the Appellant/Petitioner that the Learned Single Judge ought to have seen that one P.Ponraj was promoted to the post of Laboratory Assistant from a category which was not at all a feeder category to the post of Laboratory Assistant. 14. The Learned Counsel for the Appellant/Petitioner submits that the Appellant had retired on reaching the age of superannuation and as such, he would be satisfied, if he was given the deemed promotion as the Superintendent with monetary benefits thereto being granted to him. 15. The Learned Counsel for the Appellant/Petitioner relies on the proceedings of the 2nd Respondent dated 20.07.1987 which reads as under: "1. The following additional posts of non-teaching staff have been created for the College in the reference 1st read above. Consequent on the creation of the above said posts the following promotions are ordered. 2. Thiru. M. Thiraviam now working as Head Clerk is promoted and posted as Superintendent in the newly created post. He should pass the D.D.M. Test within three years from the date of this order failing which he will be reverted. 3. Consequent on the creation of the above said posts the following promotions are ordered. 2. Thiru. M. Thiraviam now working as Head Clerk is promoted and posted as Superintendent in the newly created post. He should pass the D.D.M. Test within three years from the date of this order failing which he will be reverted. 3. Thiruvalargal S. Malaisoodumperumal and Y. Gananmuthy now working as Special Temporary Assistants and Thiru M. Paramasivan now working as Store Keeper are promoted as Assistants and posted as such, the first in the vacancy caused by the promotion of Thiru.M.Thiraviam ordered in paragraph (8) above and the second and third in the newly created posts of Assistants. Thiruvalargal S. Malaisoodumperumal and Y. Gnanamuthu should pass the D.O.M. Test within three years from the date of this order and Thiru.M.Paramasivan should pass Account Test for Subordinate Officers Part I and D.O.M. test within three years from the date of this order. Failure to pass the above mentioned tests will entail reversion of the persons concerned. Thiru. N. Gnanasundaram, Typist who is qualified for promotion as Assistant is not considered for promotion as he has expressed his unwillingness to accept the promotion in his letter 5th read above. 4. Thiruvalargal K. David, Lab Assistant, P. Gopalasrishnan, Record Clerk, L.Rama Nadar, Lab Assistant and T. Nallathambi, Lab. Assistant are promoted and posted as Junior Assistants, the first two persons in the vacancies caused by the promotions ordered in paragraph 93) above and the other two persons in the two posts of Junior Assistants newly sanctioned in the reference 1st read above. 5. Thiru. T.Govindan, Lab. Assistant is promoted and posted as Store-keeper in the vacancy caused by the promotion of Thiru. M. Paramasivan, Store-keeper as Assistant in paragraph (3) above. 6. Thiru .K. Lingamarthandan, who is considered to be a surplus Lab. Assistant in the reference 4th read aboveis fitted in the regular vacancy of Lab. Assistant caused by the promotion of Thiru.K.David ordered in paragraph (4) above. 7. Thiruvalargal S. Thavasimuthu Record Clerk and Thiru. E. Thanka Nadar, Library Attender are pormoted and posted as Lab. Assistants in the vacancies caused by the promotion of Tghiru. L. Rama Nadar and Thiru. T. Nallatambi ordered in paragraph (4) above respectively." 16. A perusal of the proceedings of the Director of Collegiate Education in K.Dis.No.98743/Ye. 7. Thiruvalargal S. Thavasimuthu Record Clerk and Thiru. E. Thanka Nadar, Library Attender are pormoted and posted as Lab. Assistants in the vacancies caused by the promotion of Tghiru. L. Rama Nadar and Thiru. T. Nallatambi ordered in paragraph (4) above respectively." 16. A perusal of the proceedings of the Director of Collegiate Education in K.Dis.No.98743/Ye. 4/90 dated 27.03.1991 indicates that the Deputy Director of Collegiate Education, Tirunelveli Region was informed that according to G.O.Ms.No.11, Education Department, dated 01.04.1989, irrespective of the scales of pay, the posts of Junior Assistants working in the categories of Record Clerks, Library and Attenders, Laboratory Assistants, Museum Keepers, Herbarium Keepers and Mechanics in similar time scales of pay in the same College be considered on seniority basis as per Rule 11 (4)(1) of Tamilnadu Private College (Regulation) Rules 1976. Also, it was mentioned that in Director's Proceedings Rc.No.88530/Ye.4/87/1, dated 30.01.1989 it was stated that while filling the post of Junior Assistant, the seniority of persons working in the feeder categories should be taken into account as ordered in G.O.Ms.No.11, Education Department, dated 01.04.1989. 17. On going through the promotion order of the Appellant/ Petitioner dated 13.01.1995, it is evident that one P. Gopalakrishnan, worked as Junior Assistant in the 2nd Respondent College was promoted as Assistant and Thiru C. Rajarathinam, who was working as servant was promoted as Junior Assistant on 31.05.1993 in the existing vacancy and was working and that he submitted his application in writing that he does not want promotion as on 26.12.1994 and requested to demote him to the previous post as servant and accordingly, he was demoted in that capacity and as such, the Appellant/Petitioner Lab Assistant was promoted as Junior Assistant in the vacancy. 18. It is not in dispute that the Appellant/Petitioner was promoted as Assistant, owing to the retirement of M. Paramasivam, Assistant who got retired from the 2nd Respondent College, as per the Promotion Order dated 01.08.1995 issued by the Secretary of the College. 19. On 28.03.1996, the Appellant/Petitioner's Assistant post was approved by the 1st Respondent/Joint Director of Collegiate Education. 18. It is not in dispute that the Appellant/Petitioner was promoted as Assistant, owing to the retirement of M. Paramasivam, Assistant who got retired from the 2nd Respondent College, as per the Promotion Order dated 01.08.1995 issued by the Secretary of the College. 19. On 28.03.1996, the Appellant/Petitioner's Assistant post was approved by the 1st Respondent/Joint Director of Collegiate Education. On 03.02.1999, the 2nd Respondent/College sent a letter to the 1st Respondent/Joint Director of Collegiate Education, Tirunelveli stating that the 3rd Respondent (P. Vasantha) was the Senior most Assistant on the basis of Seniority amongst the Assistants and the individual was appointed as Superintendent and further, it was mentioned that the Appellant/Petitioner was carefully considered and according to the Government orders mentioned therein, in the cadre of Assistant, he could not be a senior most Assistant and as such, his petition was not liable to be accepted. 20. As seen from the representation of the Appellant/Petitioner dated 08.02.1992, it is clear that the Appellant/Petitioner had, inter alia, stated that S. Malaisudumperumal, who was working as Assistant, retired on 28.02.1992 and he requested the Secretary in person to grant him promotion in that place and submitted an application. But he was not given the promotion and it was protracted and the 3rd Respondent (P. Vasantha Typist), who qualified the District Manual and Accounts Test in November 1992, was promoted with effect from16.06.1994. Furthermore, the Appellant/Petitioner, in his representation dated 08.02.1999, had also averred that he was fully qualified in the month of November 1990 itself, but he was not promoted as Assistant when S.Malaisudumperumal retired to 28.02.1992 with the intention to give promotion to 3rd Respondent (P.Vasantha Typist), who fully qualified in November 1992 only and sufficient time was given to her to acquire educational qualification and promotion was given to her on 16.06.1994. That apart, the Appellant/ Petitioner had categorically stated that the 3rd Respondent was promoted as Superintendent with effect from 02.11.1998 in the Superintendent vacancy, when M. Diraviyam working as Superintendent retired on 31.10.1998. 21. That apart, the Appellant/ Petitioner had categorically stated that the 3rd Respondent was promoted as Superintendent with effect from 02.11.1998 in the Superintendent vacancy, when M. Diraviyam working as Superintendent retired on 31.10.1998. 21. The 1st Respondent, in his communication dated 24.02.1999, addressed to the Secretary of the 2nd Respondent College, had, inter alia, stated that it was mentioned in Letter No.C1/112/99 dated 03.02.1999 and 10.02.1999, the petition of the Appellant/Petitioner was carefully considered and that according to the Government Order mentioned therein, he could not become senior most Assistant in the cadre of Assistant and further requested to send a detailed para wise remarks on the petition of the Appellant. 22. The 2nd Respondent, in Letter No.V1/112/99 dated 12.04.1999 addressed to the 1st Respondent, had, inter alia, stated that to fill up the vacancy which had arisen due to the retirement of S. Malaisudumperumal, Assistant on 29.02.1992 and since the number of students studied in the College as on date was lesser, the vacancy could not be filled up according to the Letter in C1/112/99 dated 03.02.1999, 10.02.1999 and 19.02.1999 and also as per Government Order No.1191 Education dated 02.09.1989. Further, it was stated that the Appellant/Petitioner was working only as Lab Assistant on that date and it was not the feeder category for the post of Assistant and that only on 20.01.1995, he was promoted as Junior Assistant. Moreover, it was also stated that since the post of Typist was feeder category, the 3rd Respondent (P. Vasantha), who was fully qualified, was promoted as Assistant and therefore, a request was made for dismissing the petition filed by the Appellant. 23. The 1st Respondent on 03.08.1999 addressed a communication to the Secretary of the 2nd Respondent College approving the appointment of the 3rd Respondent and further, it was evident that the 3rd Respondent from the post of Assistant was promoted as Superintendent. 24. Earlier, the Appellant/Petitioner filed W.P.No.15329 of 1993 before this Court and on 16.09.1999, this Court, inter alia, directed the 1st Respondent to consider and pass orders on the appeal/ representation made by the Appellant/Petitioner on 16.11.1998 and 08.02.1999 within a period of six months from the date of communication of the order. 25. 24. Earlier, the Appellant/Petitioner filed W.P.No.15329 of 1993 before this Court and on 16.09.1999, this Court, inter alia, directed the 1st Respondent to consider and pass orders on the appeal/ representation made by the Appellant/Petitioner on 16.11.1998 and 08.02.1999 within a period of six months from the date of communication of the order. 25. The 1st Respondent on 08.02.2000 passed an order, among other things, mentioning that the feeder category for the post of Assistant is the part of Junior Assistant/Typist and that the Appellant was Lab Assistant on that date and that the post of Lab Assistant is not feeder category to the post of Assistant. Furthermore, the promotion given to the 3rd Respondent (P.Vasantha as Assistant with effect from 16.06.1994) by the Management was proper, since she was working as Typist which was a feeder category and also she was senior and fully qualified. 26. It was also stated that the vacancy in the post of Assistant due to retirement on 29.02.1992 was not filled up due to lesser strength of students as per G.O.No.1191 Education dated 02.09.1989 and proceeding of the Director in Na.Ka.No.8149/A1/88 dated 21.10.1989. On that date, the Appellant/Petitioner was working as Lab Assistant and only on 20.01.1995 he was promoted as Junior Assistant and he was not senior in the post of Junior Assistant viz., the feeder category post. Also, the 3rd Respondent was the senior most in the post of Assistant which was a feeder category to that post was promoted and appointed as Superintendent with effect from 02.11.1998 by the Management was proper according to rules. Added further, the ground as senior in service in non-feeder category or joining first in service or elder in age were not the grounds for claiming promotion. 27. It is to be noted that promotion is a positive act of elevation conveyed by an employer through a written order issued in favour of a person promoted and communicated to him. The word 'promotion' entails duties of higher responsibilities. Also, it must satisfy the test of selection in the manner prescribed either in the statute or administrative instructions. 28. Admittedly, there is no right to promotion. However, an employee has a fundamental right to be considered for promotion if he satisfies the required eligibility conditions/norms. 29. The word 'promotion' entails duties of higher responsibilities. Also, it must satisfy the test of selection in the manner prescribed either in the statute or administrative instructions. 28. Admittedly, there is no right to promotion. However, an employee has a fundamental right to be considered for promotion if he satisfies the required eligibility conditions/norms. 29. It is to be borne in mind that promotion from a feeder category to higher category does not admit of discrimination based on the source of entry in feeder category. No wonder, promotion is a normal incident to service. Quite often, the promotion rules provide for a zone of consideration. 30. To put it differently, the appropriate authority in such a contingency is not obliged to consider the cases of all employees in feeder category. The authority concerned will only consider the cases of those employees in feeder category who come within the zone of consideration, in the considered opinion of this Court. 31. At this stage, it is not out of place for this Court to extract para 2 and 3 of G.O.Ms.No.11, Education Department, dated 01.04.1989, which reads as under: "2. The Government have also examined the proposal of the Director of Collegiate Education that appointments to the posts of Junior Assistants in the private colleges be made on seniority basis only even though the pay scales to certain posts in the feeder categories revised consequent to the implementation of the Tamil Nadu Fourth Pay Commission scales of pay. The above proposal has been accepted by the Government. 3. Accordingly the Government direct that irrespective of the scales of pay, the posts of Junior Assistant in a private college shall be filled up from the persons working in the categories of Record Clerks, Library Attenders, Laboratory Assistants, Museum Keepers, Herbarium Keepers and Mechanics and posts in similar time scales of pay in the same college be considered on seniority basis as per rule (4) (i) of Tamil Nadu Private Colleges (Regulation) Rules, 1976 as amended." 32. We also, deem it appropriate to cite the decision of the Hon'ble Supreme Court in P.S. Sadasivaswamy V. State of Tamil Nadu, [AIR 1974 Supreme Court 2271] wherein it is laid down as follows: "Where a Government servant slept over the promotions of his juniors over his head for fourteen years and then approached the High Court with writ petition challenging the relaxation of relevant rules in favour of the juniors, the writ petition is liable to be dismissed in limine. Such an aggrieved person should approach the Court at least within six months or at the most a year of promotion of his juniors. It is not that there is any period of limitation for the Courts to exercise their powers under Art.226, nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time.But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Art. 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters.Decision in W.P. And Appeal (Mad.), Affirmed." 33. It cannot be gainsaid that a waiver is an intentional relinquishment of a known right. There can be no waiver unless the person against whom the waiver is claimed had full knowledge of his rights and of facts enabling him to take effectual action for the enforcement of such rights as per the decision of the Hon'ble Supreme Court in Associated Hotels of India Limited V. S.B. Sardar Ranjit Singh [AIR 1968 Supreme Court 933]. 34. Rule 11(4)(i) of Tamil Nadu Private Colleges (Regulation) Rules, 1976 enjoins as follows: "[(4) (i) Promotions in respect of teaching staff shall be made on grounds of merit and ability, seniority being considered only where merit and ability are approximately equal, and in respect of non-teaching staff promotions shall be made on seniority basis, provided other conditions regarding qualification are satisfied.] (Substituted by G.O.Ms.No.60,Education (RD) dated the 20.1.1986)" 35. In law, an individual who has the benefit given to him by a statute or by the rules and regulations may waive it, if he thinks fit. In law, an individual who has the benefit given to him by a statute or by the rules and regulations may waive it, if he thinks fit. After all, a waiver is nothing unless it amounts to a release. It connotes nothing more than an intention not to insist upon the right.To put it succinctly, waiver ought to be an intentional act with knowledge. Most importantly, some distinct act should be done to constitute a waiver. Also, it must be intentional and finally it must be with knowledge as per the decision in Life Insurance Corporation of India, Bombay V. Ramdas Agarwal, [ AIR 1979 Pat. 124 at p. 127]. 36. One cannot ignore an important fact that there can be no waiver of a non-existent right. Likewise, one cannot waive that chosen ones has a right at the time of waiver. The voluntary choice is the gist of waiver. There ought to exist an occasion/opportunity for choice between the relinquishment and an enforcement of the right in question. 37. According to Halsbury's Laws of England (3rd Ed. Vol.14, para 1175), the term 'Waiver' is the abandonment of a right and is either express or implied from conduct. An individual who is entitled to the benefit of a statute or a benefit of a covenant in a contract may waive it and allow the contract or transaction to proceed further as though the said stipulation or provision was not there. No doubt, waiver of this nature depends upon consent, and the fact that the other side has acted upon it is sufficient consideration. Where the waiver is not express, it may be implied from conduct which is inconsistent with the continuance of the right. 38. On a careful consideration of respective contentions and in the light of detailed discussions mentioned supra, it is latently and patently clear that the Appellant/Petitioner was appointed on 01.08.1974 in the Attender Cadre and later he was promoted as Lab Assistant on 20.07.1987 and subsequently, he was promoted as Junior Assistant on 21.05.1995 and again was promoted as Assistant on 03.08.1995. Furthermore, the scale of pay for the Lab Assistant is Rs.3050-75-3950-100-4590 and the scale of pay for the Junior Assistant is Rs.3200-85-4900/-whereas the scale of pay for Assistant is Rs.4000-100-6000. It cannot be brushed aside that the 3rd Respondent was promoted as Superintendent based on cadre seniority in Assistant cadre. Furthermore, the scale of pay for the Lab Assistant is Rs.3050-75-3950-100-4590 and the scale of pay for the Junior Assistant is Rs.3200-85-4900/-whereas the scale of pay for Assistant is Rs.4000-100-6000. It cannot be brushed aside that the 3rd Respondent was promoted as Superintendent based on cadre seniority in Assistant cadre. It was not disputed that the 3rd Respondent possessed experience of 4 years and 5 months as Assistant as on 02.11.1998. But the Appellant/Petitioner possessed only an experience of 3 years and 3 months as Assistant as on 03.11.1998. As such, the 3rd Respondent was senior in the Assistant Cadre and she was rightly promoted to the post of Superintendent. That apart, for the post of Junior Assistant, account test is not required. In any event, the Appellant/Petitioner was only a Laboratory Attender and he could not be promoted as Assistant. Also, he had not challenged his promotion order dated 20.01.1995 and 03.08.1995 and received the salary for the said post. We are of the considered view that the Appellant/ Petitioner, after sufficient lapse of time, cannot seek the aid of Writ Court under Article 226 of the Constitution of India in view of the fact an endeavour could not be made to unsettle the settled matters so as to upset the apple cart and a stale claim could not be permitted to be projected by the Appellant/Petitioner when he was not quite diligent in challenging the promotion given to him on 20.01.1995 and 03.08.1995 respectively. Viewed from that perspective, the Writ Petition filed by the Appellant/Petitioner is not per se maintainable in law. Likewise, the Writ Appeal projected by him is devoid of merits and it fails. 39. In the result, the Writ Appeal is dismissed, leaving the parties to bear their own costs. The order passed by the Learned Single Judge in W.P.No.9355 of 2000 dated 10.06.2009 is confirmed by this Court for the reasons assigned in this Appeal.