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Madhya Pradesh High Court · body

2013 DIGILAW 469 (MP)

Brajesh Sharan Shukla v. State of M. P.

2013-04-05

K.K.TRIVEDI

body2013
JUDGMENT : The grievance of the petitioner in this petition under Article 226 of the Constitution of India is that though he was considered for promotion on the post of Joint Registrar Co-operative Societies, but instead of promoting the petitioner, certain persons have been promoted and the claim of the petitioner is not considered properly. The representation made by the petitioner has been rejected, therefore, he is required to approach this Court by way of filing this writ petition. 2. Briefly stated facts are that the petitioner was appointed on the post of Assistant Registrar, Co-operative Societies on 29-4-1988. The petitioner joined the services on 2-6-1988. On account of meritorious services, the petitioner was considered for promotion timely and was promoted on the post of Deputy Registrar, Co-operative Societies vide order dated 30-10-1995. The services of the petitioner are governed by the Rules known as M. P. Sahkari Seva Bharti Niyam, 1965 (hereinafter referred to as the Rules for short). According to the Schedule appended to the Rules, on completion of three years of minimum services as Deputy Registrar, Co-operative Societies, the petitioner became eligible to be considered for promotion on the post of Joint Registrar, Cooperative Societies. Proper seniority of the petitioner was fixed and a gradation seniority list was circulated. 3. There were certain vacancies available on the post of Joint Registrar, Co-operative Societies and, therefore, the cases were to be considered for promotion. The post of Deputy Registrar, Co-operative Societies is Class-I post and the promotional post of Joint Registrar, Co-operative Societies is also a Class-I post. Since at the time when the vacancy occurred on promotional post, Rules entitled M.P. Public Service (Promotion) Rules, 2002 (hereinafter referred to as the Promotion Rules for brevity) were promulgated, the claim of the petitioner was to be considered in accordance to the said Rules. It is contended that promotion on Class-I to Class-I post is based on merit-cum-seniority criteria and, therefore, the procedure is laid down under Rule 7 of the Promotion Rules was to be followed. It is contended that promotion on Class-I to Class-I post is based on merit-cum-seniority criteria and, therefore, the procedure is laid down under Rule 7 of the Promotion Rules was to be followed. However, though the petitioner has earned excellent remark in his confidential reports for the last 5 years from the date of Departmental Promotion Committee (hereinafter referred to as the DPC for short), which were to be taken into consideration, downgrading was done in the Annual Confidential Reports (hereinafter referred to as the ACRs for short) and the petitioner was categorized as very good officer and according to the criteria laid down under Rule 7 of the Promotion Rules, proper placement was not done on account of which though the petitioner was having excellent remark in his Annual Confidential Reports, he was not put in the category of outstanding officer and was thus not promoted. However, all seniors to the petitioner who were categorized as very good officers, were granted promotion. It is, thus, contended that because of the downgrading of the ACRs of the petitioner by the DPC, he was denied the promotion in arbitrary manner. According to the petitioner, such an act of the respondents was violative of not only the Promotion Rules, but also the specific instructions issued by the respondent-State in General Administration Department vide circular dated 29-9-2004. Thus, the petitioner contends that he was to be promoted over and above the private respondents and, as such, the order issued in respect of private respondents is liable to be quashed. 4. Refuting the allegations made by the petitioner, the respondent-State has filed a return and has contended that the DPC meeting was rightly conducted strictly in terms of the Promotion Rules. Since the vacancies were available on the post of Joint Registrar, Co-operative Societies, a meeting of the DPC was held on 26-12-2005. The petitioner was also in the zone of consideration and, therefore, his name was included in the said list. The Committee evolved the criterias strictly in terms of the provisions of the Promotion Rules and after examining the cases of each and every officer, reached to the conclusion that none of the officers were to be put in the outstanding category as there was improper grading done in the ACRs of the officers. The Committee evolved the criterias strictly in terms of the provisions of the Promotion Rules and after examining the cases of each and every officer, reached to the conclusion that none of the officers were to be put in the outstanding category as there was improper grading done in the ACRs of the officers. The official respondent has further contended that since unjustified gradings were done in the ACRs by the official concerned, the DPC took up the matter modified the gradings in respect of all officers and strictly making the assessment on the basis of ACRs, prepared the list of suitable officers to be promoted on the post of joint Registrar, Cooperative Societies. According to the seniority, since the name of the petitioner was not reached within the vacancies available, the order of promotion was not issued in his respect. However, only the seniors to the petitioner have been promoted and none of the junior has been promoted superseding the claim of the petitioner. In view of this, it is contended that the order impugned has rightly been issued, the representation of the petitioner has rightly been rejected and, therefore, no relief can be granted to the petitioner. The M.P. Public Service Commission, the respondent No. 3, has also contended in the same manner and has said that the consideration was done in appropriate manner and no wrong was committed. 5. The private respondents by filing reply to the writ petition have contended that there was no illegality committed by the DPC in considering the cases of persons like petitioner. It is contended that since the name of the petitioner was in the zone of consideration, it was rightly considered. The unwarranted gradings done in the ACRs of each and every candidate was looked into and rightful assessment of merit was done by the DPC. Only because such a grading was done by the DPC, it was not to be alleged that any arbitrary action was taken by the DPC. It is contended that since the gradings in respect of all those who were put in the category of excellent officers, were examined minutely and with the reasons recorded in the proceedings, the DPC has re-graded the ACRs of such officers and has reached to the conclusion that none of the officers were to be put in the excellent or outstanding category, no wrong was committed by the DPC. It is further contended that since the petitioner is not superseded in the matter of promotion as none of his junior has been promoted, the claim made in the petition is misconceived. In terms of the direction issued by this Court, the DPC proceedings have been produced before this Court for perusal. 6. Heard learned counsel for the parties at length and perused the record minutely. 7. To dwell upon the issue whether the act was rightly done by the DPC in re-grading the ACRs of all such candidates, it is necessary to examine the Promotion Rules. It is specifically provided in the Promotion Rules that the said Rules would apply to promotion in public service of the State of Madhya Pradesh, notwithstanding contained in any Service Rules. The criteria for promotion, the determination of basis of promotion is prescribed in Rule 4 of the Promotion Rules, which categorically prescribes that promotion to Class-IV to Class-IV, Class-IV to Class-III, Class-III to Class-III, Class-III to Class-II, Class-II to Class-II, Class-II to Class-I shall be made on the basis of seniority subject to fitness. It is further provided that promotion from Class-I to higher pay scale of Class-I post shall be made on the basis of merit-cum-seniority. Since admittedly, the post of Deputy Registrar, Co-operative Societies is a Class-I post from which the promotion is to be made on the post of Joint Registrar, Co-operative Societies, which too is a Class-I post, the criteria of merit-cum-seniority would be applicable. For the said purposes, the specific provisions are made in Rule 7 of the Promotion Rules, which reads thus :- "7. Promotion on the basis of merit-cum-seniority.- (1) Where promotions are to be made on the basis of merit-cum-seniority, the zone of consideration, that is the number of public servants to be considered for promotion out of those eligible public servants in the feeder cadre/part of the service/pay scale of post shall be as under :- The formula for the further calculation shall be that the "4" be added to the double the number of anticipated vacancies. (2) Where adequate number of public servants belonging to Scheduled Castes and Scheduled Tribes are not available within the zone of consideration as mentioned above, then the zone of consideration may be enlarged to seven times the number of vacancies and the names of only such public servants belonging to Scheduled Castes and Scheduled Tribes who are in the enlarged zone of consideration shall be considered for filling up the reserved posts. (3) The names of only such public servants shall be considered for promotion who have completed the requisite number of years of service in the feeder cadre/part of the service/pay scale of post according to the Recruitment Rules for promotion and who are within the zone of consideration. In addition to this, in view of inclusion, in the select list, the names of two public servants or 25 per cent of the number of the public servants included in select list whichever is more, the names of the required number of the public servants who are in the zone of consideration shall be considered for each category to fill up the unforeseen vacancies occurring during the course of the aforesaid period. Explanation.- Manner of computation for eligibility for promotion- Period of qualifying service on 1st January of the relevant year in which Departmental Promotion Committee/Screening Committee is convened shall be counted from the calendar year in which the public servant has joined the feeding cadre/part of the service/pay scale of the post and not from the date of joining of the cadre/part of the service/pay scale of post. (4) The number of vacancies for promotion during the course of the year i.e. from 1st January to 31st December shall be worked out after taking into account the existing and anticipated vacancies on account of retirement and promotions to higher cadres/part of service/higher pay scale of posts. Vacancies arising out of deputation for periods exceeding one year shall also be taken into account. The number of vacancies to be reserved for public servants belonging to Scheduled Castes and Scheduled Tribes shall be worked out on the basis of the roster which is required to be maintained in accordance with the provisions of Rule 9 of these rules. (5) The meeting of the Departmental Promotion/Screening Committee shall be held every year. The number of vacancies to be reserved for public servants belonging to Scheduled Castes and Scheduled Tribes shall be worked out on the basis of the roster which is required to be maintained in accordance with the provisions of Rule 9 of these rules. (5) The meeting of the Departmental Promotion/Screening Committee shall be held every year. It shall consider the suitability of the public servant for promotion separately with reference to the vacancies of each previous year starting with the earliest year onwards. The Departmental Promotion Committee/Screening Committee shall consider, the suitability of the public servants for promotion to fill up the unfilled vacancies of the earlier year or years separately and prepare the select list for the relevant year accordingly. Thereafter, the Departmental Promotion Committee/Screening Committee shall consider the suitability of the public servants for promotion to fill up the existing and anticipated vacancies of the current year. (6) The Departmental Promotion/Screening Committee shall assess the suitability of the public servants for promotion on the basis of their service record and with particular reference to the Annual Confidential Reports (ACRs) for 5 preceding year. However, in cases where the required qualifying service is more than 5 years, the Departmental Promotion/Screening Committee shall see the record with particular reference to the ACRs for the years equal to the required qualifying service. (7) When one or more ACRs are not available for any reason for the relevant period, the Departmental Promotion/Screening Committee shall consider the ACRs of the years preceding the period in question. (8) When the eligibility for promotion from Class I to higher pay scale of Class-I posts, the benchmark grade &all be "Very Good." (9) The Departmental Promotion/Screening Committee shall make a relative/comparative assessment of the merits of public servants who are within the zone of consideration and make an overall grading of the public servants' merit on the basis of their service records and place them in the categories as "Outstanding", "Very Good", "Good", "Average" and "Poor", as the case may be. However, only those public servants who are graded as "Very Good" and above will be included in the select list, by placing the public servants graded as "Outstanding" on top followed by those graded as "Very Good", subject to availability of vacancies, with the public servants with the same grading maintaining the inter-se seniority in the feeder cadre/part of the service/pay scales of post. (10) Separate select lists shall be prepared for the public servants of unreserved category, Scheduled Castes and Scheduled Tribes category in which the names of such number of public servants belonging to unreserved category, Scheduled Castes and Scheduled Tribes category shall be included which is equal to the number of posts reserved for each of these categories. In addition to this, names of two public servants or twenty five per cent of the number of public servants included in the select list whichever is more, will also be included in the select list of each category as prescribed in sub-rule (3). (11) The promotion to the higher cadre/part of the service/pay scale of post shall be made from these select lists according to the names appearing in the said select lists and according to the prescribed order shown in the roster. Reserved posts shall be filled up only by the public servants belonging to the same class for which the posts are reserved. (12) In order to determine the inter-se seniority of the public servants belonging to the three categories in the cadre/part of the service/pay scale of post to which the promotion is to be made, a combined select list of the above three categories of public servants shall be prepared according to the order of merit determined by the Departmental Promotion/Screening Committee. (13) The names of public servants promoted on the basis of above combined select list shall be placed unblock below the name of last public servant promoted on the basis of the immediately preceding year's combined select list. (14) Where sufficient number of public servants with the required benchmark grade are not available within the zone of consideration, public servants with the required benchmark will be placed on the panel and for the unfilled vacancies, the appointing authority, shall hold a fresh meeting of the Departmental Promotion/Screening Committee by considering the required number of public servants beyond the original zone of consideration. (15) The reserved post which remains unfilled due to non-availability of suitable public servants of the category for which the post is reserved despite consideration of the names of all public servants eligible for consideration as per the Recruitment Rules, shall be carried forward, that is to say, shall be kept vacant until the suitable public servant belonging to that reserved category is available. In no circumstances any vacancy of reserved category shall be filled-up by promotion from the public servant belonging to any other category. (16) Wherever the reserved vacancies for Scheduled Castes and Scheduled Tribes in all cases of promotion have remained unfilled in the earlier year or years, the backlog and/or carried forward vacancies would be treated as a separate and distinct group and will not be considered together with the reserved vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year. In other words, the ceiling of fifty per cent on filling up of reserved vacancies would apply on the reserved vacancies which arise in the current year and the backlog/carried forward reserved vacancies for Scheduled Castes or Scheduled Tribes of earlier year or years would be treated as a separate and distinct group and would not be subject to ceiling of fifty per cent: Provided that Appointing Authority shall convene a special meeting of Departmental Promotion Committee/Screening Committee within six months to fill up backlog vacancies and if such vacancies still remain unfilled, they shall not be de-reserved in any manner for filling up by the public servants not belonging to the category for whom the post or posts are reserved. (17) When a public servant, whose name is included in the select list, wants to refuse promotion, he may make a written request that he may not be promoted. Such request shall be considered by the Appointing Authority taking relevant aspects into consideration. If the reasons adduced for refusal of promotion are acceptable to the Appointing Authority, the next public servant in the select list may be promoted. However, since it may not be administratively possible or desirable to offer appointment to the public servants who initially refused promoted, on every occasion on which a vacancy arises during the period of validity of the panel, no fresh offer of appointment on promotion shall be made in such cases for a period of one year from the date of refusal of first promotion or till a next vacancy arises, whichever is later. On the eventual promotion to the higher cadre/part of the service/pay scale of post, such public servant shall lose seniority vis-a-vis his juniors promoted in the preceding year to the higher cadre/part of the service/pay scale of post: In cases where the reasons adduced by the public servant for his refusal for promotion are not acceptable to the Appointing Authority then he shall enforce the promotion on the public servant and in case the public servant still refuses to be promoted, then even disciplinary action may be taken against him for refusing to obey his order." 8. Sub-rule (9) of Rule 7 of the Promotion Rules, will make it clear that the DPC/Screening Committee was authorised by the Rules aforesaid to make an overall grading of the public servant merit on the basis of their service record and place them in the category of outstanding, Very Good, Good, Average and Poor as the case may be. The DPC itself is authorised to make grading of the public servant irrespective of the categorisation whatsoever done in the ACRs. However, a check is put on the DPC by issuance of the circular dated 29-9-2004 (Annx.P/6) in such a matter where it has been categorically said that the DPC/Screening Committee will make the assessment of the ACR only on the basis of remarks finally accepted by the authorities. An example is also quoted in the said circular, which for the purposes of convenience is reproduced hereunder : - XXX XXX XXX 9. This further makes it clear that overall gradings of officers to be considered for promotion are not required to be changed except in exceptional circumstances. The DPC proceedings indicate that the ACRs of such officers were made available and in reference to the circular referred to hereinabove, the specific decision was taken by the DPC to the effect that where there was difference of opinion with respect to the final gradings made in the ACRs by the accepting officer or where the language of ACRs grading is not clear, the overall service record of the officer concerned would be considered and re-grading of the ACRs would be done. A further decision was taken by the DPC that in terms of the specific instructions issued by the General Administration Department of Government of M.P., an officer is to be graded as excellent only in specific circumstances if he has shown exceptional quality of performance of duties, therefore, the merit of those officers who have been graded as excellent officers in their ACRs by the departmental authorities was to be examined in appropriate manner and in case it is found that such excellent grading has been done without assigning any reasons, the said grading would be redone. Accordingly, after examining ACR of all those who were graded as excellent officers in their ACRs by the departmental authorities and finding that no exceptional performance was recorded in ACRs and no reasons were assigned to grade them excellent officers by departmental authorities, and such officers, were having no exceptional merits, the gradings of all such officers were reduced by one mark in terms of the provisions of the Promotion Rules. As has been referred to hereinabove, this was permissible in terms of the Promotion Rules. According to the said criteria, all those who were graded as excellent officers without any justified reasons in their ACRs, were re-graded. The petitioner was also one who was to be re-graded because of the said criteria adopted by the DPC. The petitioner too was graded excellent in all his ACRs for the last five years which were taken into consideration and after perusal of the ACRs since such excellent grading was done in respect of petitioner without recording any exceptional reason or performance of duties by the petitioner, by the departmental authorities, re-grading of the same was done by reducing one mark. The petitioner too was graded as very good officer. 10. It is, vehemently, contended by learned counsel for the petitioner that this was beyond the jurisdiction of the DPC. Reading provisions of circular dated 29-9-2004 as has been quoted hereinabove, it is contended that the criteria adopted by the DPC was beyond its jurisdiction as this was not provided under the Promotion Rules. Something which was not provided under the Promotion Rules was not to be adopted as a criteria by the DPC. Reading provisions of circular dated 29-9-2004 as has been quoted hereinabove, it is contended that the criteria adopted by the DPC was beyond its jurisdiction as this was not provided under the Promotion Rules. Something which was not provided under the Promotion Rules was not to be adopted as a criteria by the DPC. Further, it is contended that a perusal of the ACRs of the petitioner which were taken into consideration, it would be clear that there was no dispute or difference of opinion with respect to the grading done by initiating officer of the ACRs, reviewing officer or final accepting authority and, therefore, the DPC was not justified in re-grading the ACRs of the petitioner. It is contended that in fact, the petitioner was to be graded as excellent officer because of the gradings done in the ACRs of the petitioner and thus he was to topped the select list being the officer found in the excellent category. Had it been done in appropriate manner, the petitioner would have been selected on merits and would have been promoted when the private respondents were promoted. It is, thus, contended that it was an arbitrary act on the part of the respondents in reducing the gradings of the ACRs of the petitioner and denying him the promotion. 11. Per contra, it is contended by learned counsel appearing for the respondents that such a submission of the petitioner is to be rejected outrightly. Not only it is provided under the Promotion Rules, but otherwise also the DPC is required to examine the merits of each and every candidates in objective manner. Merely because somebody has obtained excellent remarks in the ACRs, without performing any exceptional duties or quality of duties, he was not to be treated as excellent officer. If this is done, it would amount to favouring somebody and denying the benefit of promotion to the senior persons who may have the good service record to their credit. It is further contended that perusal of the ACRs of the petitioner would make it clear that there was no exceptional reasons indicated on account of which the petitioner could have been graded as excellent officer. There was no justified noting made by the accepting officer in all such ACRs of the petitioner. It is further contended that perusal of the ACRs of the petitioner would make it clear that there was no exceptional reasons indicated on account of which the petitioner could have been graded as excellent officer. There was no justified noting made by the accepting officer in all such ACRs of the petitioner. Only because the petitioner has remained working for considerable long time at the secretariat level, the ACR gradings were done and only because of this reason, he was not to be granted promotion superseding the claims of senior who were graded as very good officer. It is contended that if re-grading is properly done in respect of all such officers for assessment of their merit by the DPC, no wrong was committed and as such, the petitioner would not be entitled to any relief in the writ petition. It is putforth that in various cases the Apex Court has held that judicial review of such action taken by DPC is not permissible. The reliance is placed by learned counsel for respondents in several cases which are referred hereinafter. 12. After giving thoughtful consideration and after going through the law laid down by the Apex Court, it is a case in which this Court need not interfere in the matter of selection of candidate for promotion. It is trite law that the DPC is the expert body to consider the claims for promotion. In case of Badrinath vs. Government of Tamil Nadu and others, AIR 2000 SC 3243 , the Apex Court has very categorically held that the assessment made by an expert body like DPC in regard to merit or fitness can be interfered with if it is proved that the assessment made by the said expert body is based on inadmissible or trivial material or without giving due weightage to the positive aspects of one's career or is based on arbitrary or mala fide reasons. It would not be open to the Court to interfere in such assessment if it is not proved that there is any arbitrary or mala fide reasons or the circumstances as referred to hereinabove are available, to interfere in the matter of such assessment by the Court of law in exercise of power of judicial review. It would not be open to the Court to interfere in such assessment if it is not proved that there is any arbitrary or mala fide reasons or the circumstances as referred to hereinabove are available, to interfere in the matter of such assessment by the Court of law in exercise of power of judicial review. The law laid down by the Apex Court in this respect in paragraphs 40 and 41 of the report is very clear which read thus :- "40. Unless there is a strong case for applying the Wednesbury doctrine or there are mala fides, Courts and Tribunal cannot interfere with assessments made by Departmental Promotion Committee in regard to merit or fitness for promotion. But, in rare cases, if the assessment is either proved to be mala fide or is found based on inadmissible or irrelevant or insignificant and trivial material and if an attitude of ignoring or not giving weight to the positive aspects of one's career is strongly displayed, or if the inferences drawn are such that no reasonable person can reach such conclusions, or if there is illegality attached to the decision, then the powers of Judicial review under Article 226 of the Constitution are not foreclosed. 41. While the Courts are to be extremely careful in exercising the power of judicial review in dealing with assessment made by Departmental Promotion Committees, the executive is also to bear in mind that, in exceptional cases, the assessment of merit made by them is liable to be scrutinised by Courts, within the narrow Wednesbury principles or on the ground of mala fide. The judicial power remains but its use is restricted to rare and exceptional situations. We are making these remarks so that Courts or tribunals may not be quoting this case as an easy precedent - interfere with assessment of merit in every case. Courts and Tribunals cannot sit as appellate authorities nor substitute their own views to the views of Departmental Promotion Committees. Undue interference by the Courts or Tribunals will result in paralysing recommendations of Departmental Committee and promotions. The case on hand can be a precedent only in rare case." 13. Courts and Tribunals cannot sit as appellate authorities nor substitute their own views to the views of Departmental Promotion Committees. Undue interference by the Courts or Tribunals will result in paralysing recommendations of Departmental Committee and promotions. The case on hand can be a precedent only in rare case." 13. Though it is contended by learned counsel for respondents that it was not necessary for the Selection Committee or the DPC to record its reasons for doing so, but as is specifically provided under the Promotion Rules and under the administrative instructions which are part of the Rules being supplementary to the same, the reasons were required to be recorded by the DPC in making the re-grading of the ACRs. However, once the reasons are recorded, strictly in terms of the provisions of the Rules, the correctness of the said reasons are not to be re-examined only because it is said by the petitioner that such reasons were not justified. Only in exceptional cases such power is not required to be exercised by the DPC. As has been pointed out, sub-rule (9) of Rule 7 of the Promotion Rules gives power to the DPC to make its own assessment of the merit of individual while considering his/her case for promotion. This makes it clear that if with certain reasons such a power is exercised, the allegation of mala fide or arbitrariness are to be rejected, therefore, with great respect to the law laid down by the Apex Court in the case of National Institute of Mental Health and Neuro Sciences vs. Dr. K. Kalyana Raman and others, AIR 1992 SC 1806 , it is held that reasons were to be recorded in terms of the provisions of the Promotion Rules and that was done by the DPC, in the present case, therefore, merely on this count, the proceedings of DPC cannot be said to be vitiated. This finding further gets strength from the law laid down by the Apex Court in the case of Union of India and others vs. A. K. Narula, AIR 2007 SC 2296 , wherein the Apex Court has categorically held that in absence of allegation of mala fides against the DPC and absence of arbitrariness in assessment on the basis of entries in confidential reports, interference in the assessment of merit done by the DPC is not permissible. Another aspect is that there is no challenge to the provisions of Promotion Rules which gives authority to the DPC to make the re-grading and assessment of merits of candidate concerned. The circular issued by the State Government has also not been called in question in the present writ petition. In absence of any such challenge, if a selection is made after re-grading of the ACRs, that too within the permissible limit as per Rules, the contentions raised by learned counsel for the petitioner cannot be accepted and it cannot be said that there was any arbitrary exercise of power by the DPC. The law in this respect is very clear as laid down by the Apex Court in the case of U.P.S.C. vs. K. Rajaiah and others, AIR 2005 SC 2853 wherein it has been held that in absence to such a challenge, it would not be possible for the Courts of law to exercise power of judicial review in the matter of appreciation of merits of candidates by the expert body like DPC. 14. Herein the case in hand, it appears that the petitioner was graded excellent in his ACRs and those ACRs have been re-graded by the DPC. However, as a decision in common was taken by the DPC to re-grade the ACR within the power conferred on the DPC in terms of the provisions of Rule 7(9) of the Promotion Rules, it cannot be said that such an exercise of power was bad in law or was a mala fide or arbitrary act of the DPC. Challenge to such an action of the respondents, cannot be accepted in such a case. Even otherwise the petitioner was not the only candidate whose ACRs were re-graded by the DPC. He too was graded as 'Very Good' in overall consideration of his service record and was put in the select list according to marks received by him strictly in order of his seniority. Only reason of his non-promotion was non-availability of vacancy on promotional post. No junior to him was treated more meritorious to him nor any such junior was promoted superseding the petitioner. The fundamental right of consideration for promotion was not denied to the petitioner in any arbitrary manner. Thus, no case is made out to interfere in order of promotion so issued by the respondent-State. 15. No junior to him was treated more meritorious to him nor any such junior was promoted superseding the petitioner. The fundamental right of consideration for promotion was not denied to the petitioner in any arbitrary manner. Thus, no case is made out to interfere in order of promotion so issued by the respondent-State. 15. In view of the foregoing discussions, the writ petition fails and is hereby dismissed. However, there shall be no order as to costs. Petition dismissed.