JUDGMENT (Anoop V. Mohta, J.) Learned counsel for the petitioner, on instructions and in view of the subsequent developments and also for the fact that the petitioner himself took voluntary retirement and that most of the other respondents have also retired, restricted the claim in the petition to prayer clause (ii). This means all the other prayers are not pressed and so also the related contents. 2. The petitioner is seeking promotion in pursuance of Recruitment Rules for recruitment to Class III and Class IV Services in the Subordinate Judicial Service, Appendix-A to Civil Manual (Paragraph 577 (iii). Both the counsel agree that the District Judge may promote a peon to the post of a clerk. But is subject to the requirement that the person should be qualified including the seniority and in the opinion of the District Judge fit for promotion to the higher post. 3. Respondent no. 1 resisted the claim by filing detailed affidavit even by placing on record the required service record of the petitioner. The additional affidavit dated 29.2.2008 in our view is sufficient to dismiss even the restricted case of the petitioner. 4. The averments which are uncontroverted are as under: “3. … As per seniority list of the qualified officials in Class IV Cadre, the petitioner is at Sr. No. 3 and no one was promoted from Class IV superceding the petitioner. In any event, the petitioner cannot ask the promotion as a matter of right. The respondent no. 1 had informed the petitioner that while calling employees from each class, i.e. Liftman, Watchman, Sweepers and Peonss, he will be given chance for interview and will be considered for promotion on merits and he was also asked to disclose the names of employees from the Peons to whom the promotion is given who are juniors to him and he was unable to name a single person junior to him and as such promoted. 7. Apart from this, as already stated in the earlier affidavit in reply the petitioner vide letter dated 22.4.1988 bearing No. B-22(1)/1888/88 was informed about the adverse remarks in his confidential report for the year 1987-1988 and I annexe copy of the said letter to this additional affidavit in reply as Annexure-2. 7. Apart from this, as already stated in the earlier affidavit in reply the petitioner vide letter dated 22.4.1988 bearing No. B-22(1)/1888/88 was informed about the adverse remarks in his confidential report for the year 1987-1988 and I annexe copy of the said letter to this additional affidavit in reply as Annexure-2. The petitioner by said letter Annexure-2 was also given an opportunity to show improvement in future but it appears from the records that he did not avail the said opportunity and did not show any improvement right from 1989 onwards and if his confidential reports are perused from 1989 onwards it is revealed that he was not fit to continue in the post of Junior Clerk due to bad health. There was nothing exceptional so as to consider his case not only for promotion with retrospective effect but also for back wages as claimed by him from 07.07.1989 to 11.6.1992. 5. Apart from voluntary retirement with effect from 12.5.2008, there is ample material on record to justify the stand taken by respondents. The confidential reports of the petitioner, though stated to be not communicated at the relevant time is not the correct statement, are sufficient for the respondents to pass the order. The power/decision of the District Judge to consider the fitness for promotion to the higher post, based upon the uncontroverted material placed on record, just cannot be interfered with at the instance of the petitioner. The reliance on Vinayak Kisan Jadhao & ors. v. District & Sessions Judge, Buldana & ors. 2005 (2) Bom.C.R. 893 , a Division Bench judgment, is of no assistance. The facts are distinct and distinguishable. The statement was made by the respondents to consider their case. There is no such situation here. All the concerned respondents have opposed the petition at all level. The totality of the service record of all have been taken note of by the concerned respondents before passing the orders. 6. The law of promotion is quite settled so also the right to claim it. The Supreme Court in Balbir Singh Bedi v. State of Punjab & ors. 2013 (3) SLR 4 (SC) elaborated the concepts as under: “11. The totality of the service record of all have been taken note of by the concerned respondents before passing the orders. 6. The law of promotion is quite settled so also the right to claim it. The Supreme Court in Balbir Singh Bedi v. State of Punjab & ors. 2013 (3) SLR 4 (SC) elaborated the concepts as under: “11. The principle of “seniority-cum-merit” and “merit-cum-seniority” are conceptually different, as in the case of the former, there is greater emphasis upon seniority even though the same is not the deciding factor, while the case of the latter, merit is the deciding factor.” 7. In the present case, both the things are against the petitioner; the seniority or the merit. Therefore, considering the material available on record, the decision so taken by respondent no.1 and further in view of the fact that the petitioner is restricting his claim, as recorded above, i.e. claim for notional promotion and related benefits, cannot be granted. Petition is dismissed accordingly. No costs.