JUDGMENT : D.N. PATEL, J. I.A. No. 6914 of 2016 2. Present interlocutory application has been preferred under section 5 of the Limitation Act, 1963, for condonation of delay of 46 days in preferring this Letters Patent Appeal. 3. Having heard counsel for the both sides and looking to the reasons stated in the interlocutory application, it appears that there are reasonable grounds for condonation of delay. 4. In view of these facts, we hereby, condone the delay in preferring this Letters Patent Appeal. Accordingly, I.A. No. 6914 of 2016 is allowed and disposed of. L.P.A. No. 486 of 2016 5. This Letters Patent Appeal has been preferred against the judgment and order dated 18th July, 2016 passed by the learned Single Judge in W.P.(s) No. 3120 of 2015. This appellant is the original petitioner, who has prayed in the writ petition for promotion from Class IV to Class III post. 6. The major contention raised by the appellant (original petitioner) is that as per Circular dated 16th September, 1992, which is at Annexure 1 to the memo of the Letters Patent Appeal, for promotion from Class IV to Class III posts, examination has to be conducted by the State of Jharkhand, but since long it has not been done. 7. It has been further submitted by the appellant (original petitioner) that previously these appellants had cleared departmental examination (Annexure 7 to the memo of this Letters Patent Appeal) and hence, these appellants ought to have been promoted to Class III. 8. It is further submitted by the counsel appearing for the appellants that one of the appellants is going to retire within one or two years and hence Letters Patent Appeal may be allowed quashing the order and judgment dated 18th July, 2016 passed by the learned Single Judge in W.P.(s) No. 3120 of 2015. REASONS 9. Having heard counsel appearing for both sides and looking to the facts and circumstances of the case, we see no ground to entertain this Letters Patent Appeal mainly for the following facts and reasons: (I) There is no legitimate right vested in employees that they must be promoted. The only right vested in an employee is to be considered for promotion. (II) Promotional posts are less in number than that of the feeder cadre and therefore, all employees in the feeder cadre cannot be promoted. The only right vested in an employee is to be considered for promotion. (II) Promotional posts are less in number than that of the feeder cadre and therefore, all employees in the feeder cadre cannot be promoted. There is also a provision that those who are not promoted inspite of completion of requisite period of service due to unavailibility of post or some other valid reason, instead of promotion they are given higher pay-scale attached to the promotional post and this benefit is known as Assured Career Progression benefit in service jurisprudence. (III) It is vehemently submitted by the counsel appearing for the appellants that they have cleared some departmental examination (Annexure 7 to the memo of the Letters Patent Appeal). This contention is also not useful to these appellants mainly for the reason that even if these appellants are capable of clearing the departmental examination, it does not mean that they would be promoted by the Government. The question as to whether an employee will get promotion or not in a particular case, depends upon the facts and circumstances of the said case. All eligible candidates from feeder cadre can not be promoted. It depends upon the need as to how many promotional posts are to be filled up. This factor will decide the chance of promotion of an employee and not alone the eligibility of the candidate in the feeder cadre. If the government is in need of more number of employees on the promotional posts they will promote more employees from the feeder cadre. These aspects of the matter has been properly appreciated by the learned Single Judge while dismissing W.P.(s) No. 3120 of 2015 vide judgment and order dated 18th July, 2016. (IV) It has been held by Hon'ble the Supreme Court in Syed Khalid Rizvi v. Union of India, reported in 1993 Supp (3) SCC 575, in paragraph No. 31 as under: “31. No employee has a right to promotion but he has only the right to be considered for promotion according to rules. Chances of promotion are not conditions of service and are defeasible. Take an illustration that the Promotion Regulations envisage maintaining integrity and good record by Dy. S.P. of State Police Service as eligibility condition for inclusion in the select-list for recruitment by promotion to Indian Police Service. Chances of promotion are not conditions of service and are defeasible. Take an illustration that the Promotion Regulations envisage maintaining integrity and good record by Dy. S.P. of State Police Service as eligibility condition for inclusion in the select-list for recruitment by promotion to Indian Police Service. Inclusion and approval of the name in the select-list by the UPSC, after considering the objections if any by the Central Government is also a condition precedent. Suppose if ‘B’ is far junior to ‘A’ in State Services and ‘B’ was found more meritorious and suitable and was put in a select-list of 1980 and accordingly ‘B’ was appointed to the Indian Police Service after following the procedure. ‘A’ was thereby superseded by ‘B’. Two years later ‘A’ was found fit and suitable in 1984 and was accordingly appointed according to rules. Can ‘A’ thereafter say that ‘B’ being far junior to him in State Service, ‘A’ should become senior to ‘B’ in the Indian Police Service. The answer is obviously no because ‘B’ had stolen a march over ‘A’ and became senior to ‘A’. Here maintaining integrity and good record are conditions of recruitment and seniority is an incidence of service. Take another illustration that the State Service provides — rule of reservation to the scheduled castes and scheduled tribes. ‘A’ is a general candidate holding No. 1 rank according to the roster as he was most meritorious in the State service among general candidates. ‘B’ scheduled castes candidate holds No. 3 point in the roster and ‘C’, scheduled tribe holds No. 5 in the roster. Suppose Indian Police Service Recruitment Rules also provide reservation to the Scheduled Castes and Scheduled Tribes as well. By operation of the equality of opportunity by Articles 14, 16(1), 16(4) and 335, ‘B’ and ‘C’ were recruited by promotion from State Services to Central Services and were appointed earlier to ‘A’ in 1980. ‘A’ thereafter in the next year was found suitable as a general candidate and was appointed to the Indian Police Service. Can ‘A’ thereafter contend that since ‘B’ and ‘C’ were appointed by virtue of reservation, though were less meritorious and junior to him in the State service and gradation list would not become senior to him in the cadre as IPS officer. Undoubtedly ‘B’ and ‘C’, by rule of reservation, had stolen a march over ‘A’ from the State Service. Can ‘A’ thereafter contend that since ‘B’ and ‘C’ were appointed by virtue of reservation, though were less meritorious and junior to him in the State service and gradation list would not become senior to him in the cadre as IPS officer. Undoubtedly ‘B’ and ‘C’, by rule of reservation, had stolen a march over ‘A’ from the State Service. By operation of rule of reservation ‘B’ and ‘C’ became senior and ‘A’ became junior in the Central Services. Reservation and roster were conditions of recruitment and seniority was only an incidence of service. The eligibility for recruitment to the Indian Police Service, thus, is a condition of recruitment and not a condition of service. Accordingly we hold that seniority, though, normally an incidence of service, Seniority Rules, Recruitment Rules and Promotion Regulations form part of the conditions of recruitment to the Indian Police Service by promotion, which should be strictly complied with before becoming eligible for consideration for promotion and are not relaxable.” (V) It has been held by Hon'ble the Supreme Court in State of M.P. v. J.S. Bansal reported in (1998) 3 SCC 714 , in Paragraph No. 13 “13. Undoubtedly, an employee has a right of being considered for promotion but he cannot claim promotion as of right. Right to be considered for promotion is obviously different and distinct from right of promotion. Even if disciplinary proceedings are initiated against an employee and those proceedings are pending on the date on which names of other employees are considered for promotion to the next higher post, the delinquent employee, if he is similarly circumstanced as other employees and is also eligible, has a right to be considered for promotion to the next higher post along with other employees. His name cannot be omitted from consideration merely because of the pendency of the departmental proceedings. An employee cannot be denied this right at the interlocutory stage of the departmental proceedings as he is still to be found guilty on the basis of the evidence which might be produced against him during those proceedings. Till the charges are established, his right to be considered cannot be defeated as he is not under the cloud of having been found guilty but is only suspected to be guilty. Mere suspicion is not a substitute for proof. Till the charges are established, his right to be considered cannot be defeated as he is not under the cloud of having been found guilty but is only suspected to be guilty. Mere suspicion is not a substitute for proof. Consideration for promotion along with other eligible candidates is done so as to give effect to the fundamental right available even to a delinquent employee under Articles 14 and 16 of the Constitution. Once the name is considered for promotion, the recommendations of the Departmental Promotion Committee are required to be kept in a “Sealed Cover” obviously for the reason that if the employee is ultimately found to be not guilty and the charges set out against him are found as “not established”, he may be promoted immediately to the next higher post.” (VI) It has been held by Hon'ble the Supreme Court in Badrinath v. Govt. of T. N., reported in (2000) 8 SCC 395 , in Paragraph No.s 47 and 58 as under: “47. Every officer has a right to be considered for promotion under Article 16 to a higher post subject to eligibility, provided he is within the zone of consideration. But the question is as to the manner in which his case is to be considered. This aspect is a matter of considerable importance in service jurisprudence as it deals with “fairness” in the matter of consideration for promotion under Article 16. We shall therefore refer to the current legal position. 58. From the above judgments, the following principles can be summarised: (1) Under Article 16 of the Constitution, right to be “considered” for promotion is a fundamental right. It is not the mere “consideration” for promotion that is important but the “consideration” must be “fair” according to established principles governing service jurisprudence. (2) Courts will not interfere with assessment made by Departmental Promotion Committees unless the aggrieved officer establishes that the non-promotion was bad according to Wednesbury principles or it was mala fides. (3) Adverse remarks of an officer for the entire period of service can be taken into consideration while promoting an officer or while passing an order of compulsory retirement. But the weight which must be attached to the adverse remarks depends upon certain sound principles of fairness. (3) Adverse remarks of an officer for the entire period of service can be taken into consideration while promoting an officer or while passing an order of compulsory retirement. But the weight which must be attached to the adverse remarks depends upon certain sound principles of fairness. (4) If the adverse remarks relate to a distant past and relate to remarks such as his not putting his maximum effort or so on, then those remarks cannot be given weight after a long distance of time, particularly if there are no such remarks during the period before his promotion. This is the position even in cases of compulsory retirement. (5) If the adverse remarks relate to a period prior to an earlier promotion they must be treated as having lost their sting and as weak material, subject however to the rider that if they related to dishonesty or lack of integrity they can be considered to have not lost their strength fully so as to be ignored altogether. (6) Uncommunicated adverse remarks could be relied upon even if no opportunity was given to represent against them before an order of compulsory retirement is passed.” (VII) It has been held by Hon'ble the Supreme Court in Union of India v. Sangram Keshari Nayak, reported in (2007) 6 SCC 704 Paragraph No. 11 as under: “11. Promotion is not a fundamental right. Right to be considered for promotion, however, is a fundamental right. Such a right brings within its purview an effective, purposeful and meaningful consideration. Suitability or otherwise of the candidate concerned, however, must be left at the hands of the DPC, but the same has to be determined in terms of the rules applicable therefor. Indisputably, the DPC recommended the case of the respondent for promotion. On the day on which, it is accepted at the Bar, the DPC held its meeting, no vigilance enquiry was pending. No decision was also taken by the employer that a departmental proceeding should be initiated against him.” (VIII) It has been held by Hon'ble the Supreme Court in S.B. Bhattacharjee v. S.D. Majumdar, reported in (2007) 10 SCC 513 , Paragraph No. 13 as under: “13. Although a person has no fundamental right of promotion in terms of Article 16 of the Constitution of India, he has a fundamental right to be considered therefor. An effective and meaningful consideration is postulated thereby. Although a person has no fundamental right of promotion in terms of Article 16 of the Constitution of India, he has a fundamental right to be considered therefor. An effective and meaningful consideration is postulated thereby. The terms and conditions of service of an employee including his right to be considered for promotion indisputably are governed by the rules framed under the proviso appended to Article 309 of the Constitution of India.” (IX) It has been held by Hon'ble the Supreme Court in Hardev Singh v. Union of India, reported in (2011) 10 SCC 121 , Paragraph 17 as under: “17. It cannot be disputed that no employee has a right to get promotion; so the appellant had no right to get promotion to the rank of Lieutenant-General but he had a right to be considered for promotion to the rank of Lieutenant-General and if as per the prevailing policy, he was eligible to be promoted to the said rank, he ought to have been considered. In the instant case, there is no dispute to the fact that the appellant's case was duly considered by the SSB for his promotion to the rank of Lieutenant-General.” (X) It has been held by Hon'ble the Supreme Court in High Court of Judicature of Madras v. R. Perachi, reported in (2011) 12 SCC 137 , Paragraph 32 as under: “32. Besides, there is no right of promotion available to an employee. He has a right to be considered for promotion which has been held to be a fundamental right (see para 13 of S.B. Bhattacharjee v. S.D. Majumdar). However, though a right to be considered for promotion is a condition of service, mere chance of promotion is not (see para 15 of the Constitution Bench judgment in Mohd. Shujat Ali v. Union of India).” (XI) Moreover, counsel appearing for the appellant, upon query raised by this court, has informed that the appellants have already got the benefit of Assured Career Progression, which is given in lieu of the promotion. 10. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, it appears that no error has been committed by the learned Single Judge while deciding W.P.(s) No. 3120 of 2015 vide judgment and order dated 18th July, 2016 and we are not inclined to take any other view than what has been taken by the learned Single Judge. 11. 11. There is no substance in this Letters Patent Appeal and the same is, accordingly, dismissed.