JUDGMENT : M.M. Das, J. - The petitioner is the management of National Bank for Agriculture and Rural Development (in short 'NABARD') and it calls in question the award dated 26.2.2000 passed by the Presiding Officer, Industrial Tribunal. Orissa, Bhubaneswar. To appreciate the rival contentions of the parties made before this Court, it is essential to delineate the facts leading to title present dispute, which is as under: The petitioner-Bank is a Corporation operating at the National Level established by an Act of Parliament called the National Bank for Agriculture and Rural Development Act, 1981 (hereinafter referred to as 'NABARD Act, 1981') having its Head Office at Mumbai and Regional Offices at different State Capitals including Bhubaneswar. The service conditions of all the employees of the petitioner-Bank is fundamentally covered and governed by the National Bank for Agriculture and Rural Development (Staff) Rules, 1982 (in short 'the Rules'). These Rules are framed by the Board of Directors of the petitioner-Bank being empowered in that behalf under the statute i.e. the NABARD Act, 1981. Appendix-I of the said Rules stipulates regarding various services operating in the Bank which includes subordinate services who are known as Group 'C' staff. The Group 'C' staff are classified into five broad categories, such as, Maintenance (Farash) Staff Grade I and Grade II; Maintenance (Sweeper) Staff Grade I and Grade-II; Messenger Staff Grade-I and Grade-II; Semi Skilled Staff Grade-I and Grade-II; and Skilled Staff Grade-I and Grade-II. As per the rules, the posts of Grade-I in the respective categories of Group 'C' services are filled in by way of promotion of the confirmed Grade-II employees of the respective categories who have rendered a minimum of five years of service in that Grade, on the basis of assessment of their confidential reports for the last three years and service records and such other factors as may be considered necessary. 2. It is pertinent to mention that when the rules are in vogue, on the demand of the All India NABARD Employees' Association relating to promotional avenues for employees in Group 'B' and 'C', a memorandum of settlement was arrived at between the management of the petitioner-Bank and the said Employees' Association on 23.4.1991 (Ext. 1 before the Tribunal which has been annexed as Annexure-2 to the writ petition). 1 before the Tribunal which has been annexed as Annexure-2 to the writ petition). Clause-X is the relevant clause of the agreement for the purpose of this case which is quoted hereunder: X. Promotion of employees within Group 'C': (i) It is agreed that the proportion of staff in Grade I in a Group to Grade II of that Group shall be in the ratio of 3:7, The staff in Grade II in a Group will be eligible for being considered for promotion to Grade I category of that Group on completion of 5 years of qualifying service in Grade II of that Group. The promotion shall be made on the basis of seniority and on the assessment of the confidential reports for the preceding three years and such other factors as maybe considered necessary. It is agreed that promotion of Messenger staff Grade II to Grade I and Maintenance staff Grade II to Grade I in the ratio mentioned in sub-clause (i) herein above shall be effected as from 2 July, 1990 (1 July, 1990 being a Sunday) subject to their eligibility. (ii) It is agreed that additional posts of Semi-skilled staff Grade II would be created with effect from the date of this settlement by up-gradation of the posts of Messenger staff Grade I as under without, however, causing any consequential vacancies in the category of Messengers: (a) Two in each Regional Office excepting Shimla. Jammu and Trivandrum Regional Offices and all Sub-Offices and training establishments. (b) Two additional posts would be created in Inspection Department, Hyderabad. (c) 15 additional posts would be created in Head Office, Bombay. It is further agreed that promotion of Semi-skilled staff Grade II to Semi-skilled staff Grade I in the promotion mentioned in sub-clause (i) hereinabove shall be effected as from the date hereof subject to availability of eligible candidates. 3. It is clear from the above clause of the agreement that by the said settlement, it was agreed between the management and the Employees' Association of the petitioner-Bank that the proportion of staff in Grade-I in a Group to Grade-II of that Group shall be in the ratio 3:7 and that staff in Grade-II in a Group will be eligible for being considered for promotion to Grade I category of that Group on completion of five years of qualifying service in Grade-II. The promotion shall be made on the basis of the seniority and on the assessment of the confidential reports for the preceding three years and such other factors as may be considered necessary. The said clause of the memorandum further stipulates that sub-clause (i) of Clause-X of the memorandum shall be effected from 2nd July, 1990 subject to their eligibility in respect of Messenger Staff and Maintenance Staff. 4. It is the case of the petitioner-management that the exercise for effecting promotion in the year 1995 in Group 'C' category all over the country was the exercise was undertaken by the Head Office during the month of September, 1995 and two posts of Maintenance (Sweeper) Staff Grade-I were identified and created at Bhubaneswar Office with the approval of the Managing Director on 28.8.1995 and two posts of Maintenance (Farash) Staff Grade-I were identified and created on 17.10.1995. Accordingly, Smt. G. Dei and P. Jena were found eligible for promotion to the post of Maintenance (Sweeper) Staff Grade-I. While Smt. G. Dei was promoted with effect from 25.9.1995, Sri P. Jena on account of his bad leave records was promoted with effect from 6.4.1996, his promotion being deferred by six months after his case was reviewed on 6.10.1995. Similarly, Sri A. Dehury and Sri A. Nayak, Maintenance (Farash) Staff Grade-II were promoted to Grade-I with effect from 1.11.1995. 5. The Employees Association-opp. party No. 3 made a complaint before the Asst. Labour Commissioner (Central), Bhubaneswar disputing the dates of promotion in respect of the aforesaid four staff members and demanding that their dates of appointment being 10.7.1990, they were to be promoted with effect from 10.7.1995 i.e. on completion of five years of service in Grade-II under Group 'C' in their respective categories. The Employees' Association contended that as per the settlement under Ext. 1, an employee in Staff Grade-II shall be promoted to the Staff Grade-I on completion of five years of service and as the management effected promotion on a later date, such promotion should be given retrospective effect from the day the employee completed five years of service in Staff Grade-II. The petitioner-management resisted such claim essentially on the ground that it is only after the vacancies were spotted and created, the cases of promotion were to be taken up and for completing such process, inevitably it would consume some time. The petitioner-management resisted such claim essentially on the ground that it is only after the vacancies were spotted and created, the cases of promotion were to be taken up and for completing such process, inevitably it would consume some time. It is only after completion of such process, actual promotion is to be effected and promotion to Grade-I cannot automatically be effected from the date when the employee completes five years of service in Staff Grade-II. The petitioner-management further contended that the settlement dated 23.4.1991 under Ext. 1 has never spelt out anything contrary to the existing service rules with regard to promotion except that it prescribed the ratio of posts between Grade-I and Grade-II Staff under Group 'C' while reiterating the existing criteria for promotion as per the Rules. 6. The conciliation having failed before the Conciliation Officer-cum-Asst. Labour Commissioner (Central), Bhubaneswar, a failure report was sent to the appropriate Government, pursuant to which, the following reference was made to the Tribunal. Whether the action of Management in not giving promotion to Sri P. Jena, A. Nayak, A. Dehury and Smt. G. Dei from Grade-II to Grade-1 as per settlement dated 23.4.1991 with retrospective effect is justified? If not, what relief the workmen are entitled to? 7. Consequently I.D. Case No. 63 of 1998 (C) was registered and the management as well as the employees' association were called upon to file their written statements, which they did. 8. In the respective pleadings, both, the management and the employees' association reiterated their stands taken before the Asst. Labour Commissioner. The learned Presiding Officer on taking note of the respective pleadings framed issues and accepted the evidence both oral and documentary adduced by the respective parties before him. In the impugned award, the learned Presiding Officer on scrutinizing the evidence adduced and documents produced before him by the respective parties took note of the statement of the Workman Witness No. 1 that despite the procedural formalities, the promotion can be reckoned to the date of eligibility subject to availability of vacancy which is embodied in the settlement. He also took note of two other documents, namely, Exts. 2 and 3, which disclosed that the management in case of two other employees rectifying the mistake, gave promotion to such employees retrospectively. In the fact situation of the case, the Tribunal also found that promoting an employee in Group 'C' from. He also took note of two other documents, namely, Exts. 2 and 3, which disclosed that the management in case of two other employees rectifying the mistake, gave promotion to such employees retrospectively. In the fact situation of the case, the Tribunal also found that promoting an employee in Group 'C' from. Grade-II to Grade-I only gives monetary benefit to the promotee and the promotional post i.e. Grade-I in Sweeper or Farash categories is a job involving no higher responsibility or change in the nature of the duty. It was elicited in cross-examination from W.W. No. 1 by the management that the management has given retrospective promotion though not in all cases. However, the management Witness No. 1 stated that the sanctioned strength for each category of employees has to be approved by the Managing Director as provided in Rule-7 (2) of the Staff Rules by taking the proportion formula as arrived at in the settlement. According to him, it does not clothe the workmen with an indefeasible right to promotion on completion of the required number of years of experience and the exercise of effecting promotion involves examination of the performance appraisal reports, confidential report, leave records etc. and thus, no automatic promotion is permissible in case of an employee in Grade-II to Grade-I on completion of five years of service in Grade-II. 9. Mr. J.K. Tripathy, learned Senior Counsel appearing on behalf of the management strenuously urged that the Tribunal has traversed beyond the reference in concluding that the workmen have been subjected to discrimination solely on the ground that in two other cases, the management granted promotion retrospectively, without examining the fact situation under which such employees were given promotion retrospectively. He further submitted that an employee for being promoted from Grade-II to Grade-I, it is essential under law that the posts in Grade-I must be vacant. In the facts of the present case, when Grade-I posts were created much after the concerned workman completing five years of service in Grade-II, the Tribunal holding that their promotion should be considered to have been effective from the date of completion of five years of service in Grade-II becomes a misnomer as by such date of completion of five years of service in Grade-II, no posts in Grade-I was available. In such situation, Mr. In such situation, Mr. Tripathy contented that under no circumstances, the promotion could have been considered to be effective from a prior date to the date when Grade-I posts were created, as, such promotional posts were not available on the date when the concerned employees completed five years of service in Grade-II. Drawing the attention of this Court to the reference made, he submitted that the reference itself was not happily worded and reading the reference would to show as if the management has not given promotion in accordance with the settlement dated 23.4.1991 and as if the said settlement contemplated that promotion should be given with retrospective effect. He, therefore, submitted that a bare reading of the settlement would go to show that nowhere within the four corners of the settlement or for that matter in the Staff Rules, it is contemplated that promotion should be given from a retrospective date. 10. Learned Counsel for the opp. party No. 3-Association, on the contrary, submitted that the Tribunal taking into account all the aspects of the case and dealing in detail with the materials produced before it, has rightly answered the reference that the four employees were to be given promotion from the date when they completed five years of service in Grade-II with exception of one of them who should be promoted three months after completion of five years of service in Grade-II due to his adverse leave record. 11. The question, therefore, which arises in the present case is as to whether the learned Presiding Officer, Industrial Tribunal, Orissa, Bhubaneswar has gone wrong in interpreting the agreement dated 23.4.1991 under Ext. 1 and in giving undue weightage to Exts. 2 and 3 for his conclusion that some other employees having been granted retrospective promotion, the present workmen have been discriminated, without examining the facts and circumstances of the case under which the orders of promotion under Exts. 2 and 3 were passed and without considering the decision of the Apex Court with regard to viability of granting retrospective promotion. 2 and 3 for his conclusion that some other employees having been granted retrospective promotion, the present workmen have been discriminated, without examining the facts and circumstances of the case under which the orders of promotion under Exts. 2 and 3 were passed and without considering the decision of the Apex Court with regard to viability of granting retrospective promotion. It is also to be examined as to whether in the instant case, the promotional post i.e. Grade-I being not attached with any different nature of duties than Grade-II and admittedly amounts to only a monetary benefit, such promotion to Grade-I should be construed to be automatic on completion of five years of service in Grade-II by an employee in Group 'C'. 12. It is a settled position of law that discrimination can be inferred when the persons of one class have been treated in different manner by the competent authority than some others belonging to the same class. But, however, the difference in treatment to persons of the same class may not amount to discrimination if the circumstances exist which can be differentiated intelligibly. Nothing was brought out by the workmen or the employees' association that under exact and similar circumstance, the employees in reference to Exts. 2 and 3 were given retrospective promotion and the learned Presiding Officer has also not examined as to whether in case of the employees who were given retrospective promotion under Exts. 2 and 3, such posts in Grade-I were available on the date when such employees completed five years of service in Grade-II having a good track record. This was also not the question which was referred to the Tribunal and the Tribunal was not competent to decide as to whether the four workmen have been discriminated. The only question referred to the Tribunal was as to whether the promotion under the agreement dated 23.4.1991 was automatic from Grade-II to Grade-I on completion of five years of service in Grade-II, inasmuch as whether the four workmen were to be given retrospective promotion. 13. It is no more res integra that promotion cannot be claimed as a matter of right nor it is a condition of service, but, however, an eligible person has a right to be considered for promotion strictly in accordance with law and that too if such promotional posts are available to be filled up. 13. It is no more res integra that promotion cannot be claimed as a matter of right nor it is a condition of service, but, however, an eligible person has a right to be considered for promotion strictly in accordance with law and that too if such promotional posts are available to be filled up. No doubt, the need for providing promotional avenues has been emphasized by the Hon'ble Supreme Court in several cases. In the case of AIR 1988 1033 (SC), the Supreme Court stressed upon the need for providing promotional avenue by observing that promotion generates efficiency in service and fosters the appropriate attitude to grow for achieving excellence in service and in the absence of promotional prospects, the service is bound to be degenerate and stagnation kills the desire to serve properly. Such question, however, does not arise in the present case where the petitioner-Bank has provided promotional avenue to Grade-II employees to be promoted to Grade-I in the respective category in Group 'C'. However, in view of the settled position of law, the employees have a right to be considered for promotion but no right to claim to be promoted unless the action of consideration for promotion is shown to be arbitrary and mala fide. The Staff Rules as well as the memorandum of settlement do not provide a straight jacket formula that an employee in Grade-II of Group 'C' of the Bank shall be automatically promoted to Grade-I on completion of five years of service, as the said Rules inasmuch as the memorandum of settlement reiterates that for giving promotion, the eligibility criteria for Grade-II employees is five years of qualifying service in the said grade and thereupon the management is to consider such eligible employees for promotion on the basis of the seniority coupled with the assessment of the confidential reports for the preceding three years and such other factors as may be considered necessary. The second part of the settlement as well as the Rules with regard to promotion gives ample jurisdiction to the management to assess the suitability of the Grade-II employees to be promoted to Grade-I for which the seniority shall be taken as the main factor. 14. The second part of the settlement as well as the Rules with regard to promotion gives ample jurisdiction to the management to assess the suitability of the Grade-II employees to be promoted to Grade-I for which the seniority shall be taken as the main factor. 14. In view of such rules and settlement, it cannot be said that only on completion of five years of service in Grade-II and becoming eligible to be considered for promotion, an employee in Group 'C' of the service of the bank will be automatically promoted to Grade-I. In the case of Union of India and Others Vs. K.K. Vadera and others the Supreme Court considering the case of promotion of employees to the posts of scientist 'B' of the respondents, in the said case, who were holding Junior Scientific Officers (Group 'B' posts) in the Defence Research and Development Services, examined the question in the said case as to whether the Administrative Tribunal was justified in directing that the respondents' promotion should be not from the date of the orders of promotion, but from the date the posts were created. Referring to the service rules governing the field, the Supreme Court held that after a post falls vacant for any reason whatsoever, a promotion to that posts should be from the date the promotion is granted and not from the date on which such posts fall vacant. It further observed that in the same way when additional posts are created, promotion to those posts can be granted only after the Assessment Board has met and made its recommendations for promotion being granted. If on the contrary, promotions are directed to become effective from the date of the creation of additional posts, then it would have the effect of giving promotions even before the Assessment Board has met and assessed the suitability of the candidates for promotion. The Supreme Court, therefore, taking note of the relevant rules holding that the direction of the Tribunal that promotion of the respondents should be not from the date of the orders of promotion but from the date when posts were created, to be invalid, laid down that there is no law or any rule under which a promotion is to be effective from the date of creation of promotional posts. (Emphasis supplied). 15. (Emphasis supplied). 15. In the instant case, though, no doubt, the employees promoted to Grade-I from Grade-II are not required to discharge any different type of duties than, what they were discharging as employees in Grade-II but unless Grade-I posts are created and the management considers the case of eligible candidates from Grade-II faking into consideration the seniority as well as assessing their confidential reports for the preceding three years and such other factors as they deem appropriate and pass an order of promotion which is to take effect from the date such order is passed, it can, by no stretch of imagination be said that an employee on completion of five years of service in Grade-II should be automatically promoted to Grade-I irrespective of availability of such Grade-I posts and irrespective of being considered by the employer to be fit to be promoted to Grade-I post. This Court, therefore, finds that the learned Presiding Officer exceeding the scope of reference as well as mis-interpreting the rules of promotion governing the employees in question, has misdirected himself in passing the award by directing retrospective promotion. The impugned award, therefore, cannot be sustained and is accordingly quashed. The concerned four employees should be taken to have been promoted to the posts of Grade-I in the respective category of Group 'C' service under the petitioner-Bank from the date when their promotional orders were passed. The writ petition is, therefore, allowed, but, in the circumstances, there shall be no order as to cost. The interim order passed earlier stands vacated. Final Result : Allowed