JUDGEMENT AND ORDER : Heard Mr. A.K. Bhattacharyya, learned senior counsel assisted by Mr. A. K. Choudhury, learned counsel for the petitioner. Also heard Mr. D. Nath, learned Government Advocate, Assam, representing respondent nos. 1 to 4. None appears for the respondent no. 5. 2. Aggrieved by the non-consideration of his case for promotion to the post of Executive Engineer (C) in the Department of Animal Husbandry and Veterinary, Assam, the writ petitioner has approached this Court seeking notional promotion with retrospective effect from the date his junior i.e. the respondent no. 5 was given promotion along with consequential benefits. 3. The facts of the case giving rise to this writ petition, briefly stated, are as follows. The petitioner was initially appointed as Draftsman in the Department of Animal Husbandry and Veterinary, Assam on temporary basis vide order dated 31/03/1971, pursuant whereto he had joined in the said post. Thereafter, by the order dated 11/01/1977, the petitioner was temporarily appointed as Subordinate Engineer carrying a pay scale of Rs. 325-15-440-EB-16-560-EB-18-650/-. While the petitioner was serving as Subordinate Engineer, he was promoted to the next higher post of Assistant Engineer by order dated 14/11/1985 issued under Regulation 4(d) of the Assam Public Service Commission (Limitation of Functions), Regulation, 1951 (in short “Regulation of 1951), with effect from the date of taking over charge. The petitioner was, accordingly released from the post of Sub-Engineer so as to enable him to join in the post of Assistant Engineer, East Zone Engineering Cell with Headquarter at Jorhat. Since, the promotion of the petitioner to the post of Assistant Engineer was made under Regulation 4 (d) of the Regulations of 1951, hence, his promotion was required to be regularised after obtaining the approval of the Assam Public Service Commission (APSC). As such, the Under Secretary to the Government of Assam, Veterinary Department, had issued a letter dated 05/05/1989 addressed to the Secretary, APSC, seeking approval of the Commission for regularisation of the promotion given to the petitioner to the post of Assistant Engineer. However, despite receipt of the communication dated 05/05/1989, the APSC did not take any action in the matter, as a result of which the promotion given to the petitioner to the post of Assistant Engineer could not be regularised by the Department. 4. However, despite receipt of the communication dated 05/05/1989, the APSC did not take any action in the matter, as a result of which the promotion given to the petitioner to the post of Assistant Engineer could not be regularised by the Department. 4. In the meantime, the petitioner had become eligible for consideration for promotion to the next higher post of Executive Engineer. Two vacancies in the post of Executive Engineer arose in the department and therefore, a meeting of the Selection Committee was held on 25/11/1998 for filling up those two posts by way of promotion. The Selection Committee had considered the case of the writ petitioner along with two other eligible candidates viz. the respondent no. 5 and Smt. Bobita Bhandari Kayastha. Although the writ petitioner was the senior most amongst the three and was eligible for promotion by following the criteria prescribed by the rules, yet, he was not recommended for promotion on the sole ground that his promotion in the post of Assistant Engineer was yet to be regularised . The third candidate viz. Smt. Bobita Bhandari Kayastha was also found to be in-eligible for promotion. As such, the Selection Committee recommended the case of the respondent no.5, an officer junior to the petitioner, for promotion to the post of Executive Engineer (Civil). Thereafter, by order dated 21/12/1998, the recommendation of the Selection Committee was given effect to by promoting the respondent No. 5 to the post of Executive Engineer (Civil). 5. It was only on 05/05/2001 that the APSC had conveyed its approval to the Department paving the way for regularisation of the promotion of the writ petitioner to the post of Assistant Engineer (Civil). On receipt of such approval from the APSC, the Deputy Secretary to the Government of Assam, Veterinary Department had issued a notification dated 02/08/2001 regularising his promotion given by the notification dated 14/11/1985. 6. After his promotion to the post of Assistant Engineer was regularized, the petitioner submitted a representation dated 16/12/2008 addressed to the respondent no. 2, requesting the Government to consider his case for promotion to the post of Executive Engineer against the existing vacant post. The respondent no. 4 i.e. the Director, Animal Husbandry and Veterinary Department, Assam had also issued a communication dated 09/07/2009 addressed to the respondent no. 2, requesting the Government to consider his case for promotion to the post of Executive Engineer against the existing vacant post. The respondent no. 4 i.e. the Director, Animal Husbandry and Veterinary Department, Assam had also issued a communication dated 09/07/2009 addressed to the respondent no. 3 requesting the Government to furnish necessary instruction for taking further action on the representation dated 16/12/2008 submitted by the petitioner. Thereafter on 09/09/2009, the respondent no. 4 had forwarded the ACRs of the 3 (three) eligible departmental candidates for promotion to the post of Executive Engineers and the name of the petitioner was placed at Sl. No. 1 in order of seniority. However, despite receipt of the ACRs, the respondent no. 2 did not take any further action in the matter as a result of which, the petitioner had to retire from service in the post of Assistant Engineer with effect from 30/09/2009, upon attaining the age of superannuation. 7. By referring to the minutes of the Selection Committee meeting held on 25/11/1998, Mr. Bhattacharyya, learned senior counsel submits that there is no dispute about the fact that the criteria for promotion to the post of Executive Engineer is seniority-cum-merit and the petitioner was the senior most Assistant Engineer (C) in the department, who was eligible for promotion to the next higher rank. However, the promotion to the post of Executive Engineer was denied to the petitioner on the sole ground that his previous promotion to the post of Assistant Engineer was not yet regularised. The learned senior counsel submits that the reason for not regularising the promotion of the petitioner in the post of Assistant Engineer is due to non-receipt of APSC approval for which the writ petitioner was not at all responsible. Subsequently, although the promotion of the petitioner as Assistant Engineer (Civil) was regularised by issuing the notification dated 02/08/2001, yet, submits Mr. Bhattacharyya, the respondents have shown complete in-difference towards the grievances of the petitioner in the matter for more than nine years thereafter, during which period the petitioner had remained in service. 8. Referring to a decision of the Supreme Court in the case of B.V. Sivaiah and others Vs. K. Addanki Babu and others reported in (1998) 6 SCC 720 , Mr. 8. Referring to a decision of the Supreme Court in the case of B.V. Sivaiah and others Vs. K. Addanki Babu and others reported in (1998) 6 SCC 720 , Mr. Bhattacharyya submits that when the criteria for promotion is seniority-cum-merit, what is required to be considered is the inter-se seniority of the candidates coming within the zone of consideration. Since the petitioner was the senior most eligible Assistant Engineer in the Department, hence, the Selection Committee had committed a grave error by denying promotion to the petitioner solely on the ground of non-regularisation of his promotion in the post of Assistant Engineer (Civil). The learned senior counsel, therefore, submits that this is a clear case where the fundamental rights of the petitioner has been violated and, therefore, a direction be issued to the department to give notional promotion to the petitioner in the post of Executive Engineer (C) with effect from the date on which his junior, viz, the respondent no. 5 was promoted along with other consequential benefits. 9. The respondent no. 2 has filed an affidavit-in-opposition, inter-alia, stating that the petitioner was not promoted along with the respondent no. 5 since at that time his promotion to the post of Assistant Engineer (C) was not regularised. Subsequently, although the dossiers of the petitioner along with two other departmental candidates were forwarded by the communication dated 19/09/2009 issued by the respondent no. 4 for consideration by the Selection Committee, the same did not materialise since the writ petitioner had by then retired from service on attaining the age of superannuation. 10. Supporting the stand taken by the respondent no. 2 in the counter affidavit, Ms. M. Bhattacharjee, learned Government Advocate, Assam had contended that under the Rules, the promotion given to the petitioner to the rank of Assistant Engineer could not have been regularised without the approval of the APSC and that is the reason why the department had to await approval of the APSC for regularising the promotion of the petitioner. But since no such approval was forthcoming, hence, his promotion could not be regularised at an earlier date. According to the learned Government Advocate, the department cannot be held responsible for the delay in conveying the approval by the APSC. 11. I have considered the submissions made by the learned counsel appearing for both parties and have also considered the materials available on record. 12. According to the learned Government Advocate, the department cannot be held responsible for the delay in conveying the approval by the APSC. 11. I have considered the submissions made by the learned counsel appearing for both parties and have also considered the materials available on record. 12. As noted above, the writ petitioner was promoted to the post of Assistant Engineer (C) in the department of Veterinary, Guwahati vide notification dated 14/11/1985. However, the said promotion having been granted under Regulation 4(d) of the APSC (Limitation of Functions) Regulation, 1951, the same was required to be regularised by obtaining due approval from the APSC. Regulation 4 of the Regulations of 1951 deals with promotion, which lays down the guide lines to be followed by the department while making promotion. Regulation 4 (d) deals with officiating promotions which are not likely to last for more than a year. But if the period of officiating promotion is extended beyond one year, then as per proviso to Regulation 4(d), the regularisation of the promotion would date back to the original date of promotion. For ready reference, the provision of regulation 4 of the Regulations of 1951 are extracted here-in-below :- “4. Promotion.- It shall not be necessary to consult the Commission on the principles to be followed in making promotions or on the suitability of candidates for promotion in the following cases :- (a) Promotion to a service by an authority other than the Governor; (b) Promotion from a lower to high grade or post within the same service according to the rules of the services; Provided that if it is proposed to promote an officer from one grade to another, the Commission shall be consulted if direct recruitment to the higher grade can be made after consulting the Commission ; (c) As regard the suitability for promotion from one service to another of a candidate not recommended by the authority prescribed in the rules regulating such promotion ; (d) Officiating promotion for a period which is not likely to last for more than one year : Provided that if the period of officiating promotion is extended beyond the term for which it was originally sanctioned, the period of promotion shall, for purpose of this regulation, be reckoned from the date when the promotion originally took effect and not from the date of the extension of the period.” 13. There is no Service Rule framed under Article 309 of the Constitution and the conditions of service of the employees under the Department of Animal Husbandry and Veterinary, Assam is governed by the executive order issued in the name of the Governor of Assam, called “Assam Civil Engineering Service under Animal Husbandry and Veterinary Department, Service (Recruitment and Promotion) Order, 1997”. As per the Order of 1997, the posts of Executive Engineer in the Department is required to be filled up by promotion from amongst the eligible Assistant Engineers having 6 (six) years of experience by following the criteria of seniority-cum-merit . Law is well settled that where the criteria is seniority-cum-merit, the senior most eligible candidate will steal a march over the candidate placed next below him and merit would come into play only when seniority of two candidates are found to be the same. 14. In the present case, the petitioner was admittedly senior to the respondent no 5. Since, there was no adverse entry in his ACR, hence, the petitioner was entitled to be promoted to the post of Executive Engineer (C) on the date on which the respondent No 5 was promoted. However, as mentioned above, the petitioner was denied promotion on the sole ground that his previous promotion had not yet been regularised. As a result, the petitioner had to unfortunately retire from service in the post of Assistant Engineer although his junior was promoted to the next higher post. 15. From the record, it is seen that earlier, the petitioner along with another officer of the Department, was placed under suspension pending drawal of departmental proceedings against them. Thereafter, charges were framed against the petitioner alleging his involvement in the LoC scam and an Enquiry Officer was also appointed to conduct an enquiry in respect of the charges framed by the department. The Enquiry Officer had furnished enquiry report dated 23/02/1999 holding that the charges brought against the petitioner could not be established. In the result, the petitioner stood exonerated in the departmental proceeding. The concluding remarks of the Enquiry Officer is quoted here-in below : - “In conclusion, I feel that much disservice have been done to Shri Sharma by the Department in not finalizing his case for almost a decade. In the result, the petitioner stood exonerated in the departmental proceeding. The concluding remarks of the Enquiry Officer is quoted here-in below : - “In conclusion, I feel that much disservice have been done to Shri Sharma by the Department in not finalizing his case for almost a decade. Such administrative slackness has marred the future of a young Officer depriving him on increment in pay & promotion for all these years and also putting him into great psychological imbalance. I feel the Department should settle this case without further delay.” 16. The practice of making ad-hoc promotions in the exigencies of public service is a common feature in the Government departments. But such ad-hoc promotions are usually regularised as per the Rules by reckoning the same from the initial date. From the materials on record, it is evident that a similar procedure had been followed in the past by the department of Veterinary and Animal Husbandry as well. Therefore, regularising ad-hoc promotion with retrospective effect from the original date is a routine affair in the Government departments and it is for the concerned department to take proper and timely action to ensure that such promotions are regularised without undue delay. 17. In the present case also the petitioner was given ad-hoc promotion by the order dated14/11/1985. Therefore, it was incumbent upon the department to regularised the same upon obtaining due approval from the APSC. But as has been noted above, the same was not done in the case of the petitioner until 02/08/2001. Pendency of the departmental proceeding is not stated as a ground for the delay. There is also no proper explanation in the affidavit as to the reasons for the delay in obtaining approval from the APSC. It was the responsibility of the department to pursue the matter with the APSC and obtain its approval at an early date, but record reveals that save and except issuing the solitary communication on 05/05/1989, no follow up action was taken in the matter by the department as a result of which the issue remained pending before the APSC till 05/05/2001. 18. The delay in obtaining the APSC approval has not been attributed to the petitioner. 18. The delay in obtaining the APSC approval has not been attributed to the petitioner. Assuming that the petitioner had incurred any disqualification due to non-regularisation of his previous promotion or due to the pendency of the disciplinary proceeding, even in that case the authorities ought to have considered his case for promotion in a sealed cover preceding along with the respondent no 5. However, the same was also not done in his case. 19. On 02/08/2001 the promotion of the petitioner in the post of Assistant Engineer was regularised with the approval of the APSC. By operation of the proviso to regulation 4(d) of the Regulations of 1951, such regularisation would obviously date back to the initial promotion, i.e. 14/11/1985. In the mean time the petitioner was also exonerated from the disciplinary proceeding. Therefore, immediately upon such regularisation, the petitioner had automatically become entitled for promotion to the post of Executive Engineer with effect from the date on which his junior was promoted. But for reasons not discernable, the department had failed to take proper steps for promoting him even at that stage as a result of which the petitioner had to retire from service without getting the benefit of the promotion which was due to him under the law. 20. After the decision of the Hon’ble Supreme Court in the case of Ajit Singh and others (II) vs. State of Punjab reported in (1999) 7 SCC 209 , it is no more res-integra that right to be considered for promotion is a fundamental right. In the aforementioned decision, it has been held that Article 16(1) of the Constitution provides that every employee who is otherwise eligible for promotion and comes within the zone of consideration has a fundamental right to be considered for promotion and if a person satisfies the eligibility condition but is not considered for promotion than the same would amount to clear infraction of his fundamental right guaranteed under the Constitution. The Supreme Court has further observed that where promotional avenues are available, seniority becomes closely interlinked with promotion provided such promotion is made after complying with the principles of equal opportunity stated in Article 16(1) of the Constitution. The equality of opportunity in public employment guaranteed under Article 16(1) has been held to be a facet of Article 14 and therefore, has a close connection with the later provision. 21. The equality of opportunity in public employment guaranteed under Article 16(1) has been held to be a facet of Article 14 and therefore, has a close connection with the later provision. 21. In the case of B.V. Siviah and others (Supra), relied upon by the learned senior counsel appearing on behalf of the petitioner, the Hon’ble Supreme Court has further observed that where the criteria for promotion is seniority-cum-merit, the senior, even though less meritorious, shall have priority and a comparative assessment of merit is not required to be made in such cases. 22. What crystallises from the above decisions of the Supreme Court is that where the criteria for promotion is seniority-cum-merit, the candidate who satisfies the eligibility norms and comes within the zone of consideration must be considered for promotion and the senior most candidate would have to be promoted even if it is found that the person next below is more meritorious than him. Applying the aforesaid principle to the facts of this case, it is thus clear that on the date on which promotion was given to the respondent no. 5, the petitioner was the senior most eligible candidate who was entitled to be promoted to the rank of Executive Engineer under the rules and therefore, there was no scope for the authorities to deny him the promotion to the post of Executive Engineer. But taking the plea of want of regularisation of his promotion to the post of Assistant Engineer, the petitioner was denied promotion. Having regard to the aforementioned facts and circumstances of this case, I am of the un-hesitant opinion that by failing to consider the case of the petitioner for promotion to the rank of Executive Engineer, the respondents have acted in clear breach of his fundamental rights guaranteed Articles 14 and 16(1) resulting into serious injustice being caused to him. 23. Coming to the next question of the relief that can be granted to the petitioner, it is to be noted that the petitioner has approached this court by filing the writ petition after his retirement. Therefore, it is apparent that there is delay on the part of the writ petitioner to espouse his cause. 23. Coming to the next question of the relief that can be granted to the petitioner, it is to be noted that the petitioner has approached this court by filing the writ petition after his retirement. Therefore, it is apparent that there is delay on the part of the writ petitioner to espouse his cause. Although an attempt has been made to explain the delay by citing health reasons and psychological disorder suffered by him due to the unfair treatment meted out by the department and the resultant financial crisis as the cause of delay, yet, I am of the view that the petitioner ought to have been more vigilant in pursuing his legal remedies by approaching this court atleast on a date prior to his retirement from service. Having observed as above, this court is also conscious of the fact that the right of the petitioner to be considered for promotion was a fundamental right guaranteed under part III of the Constitution. 24. In a constitution bench decision of the Supreme Court rendered in the case of Basheshar Nath vs Commissioner of Income Tax Delhi & Rajasthan and another reported in AIR 1959 SC 149 , it has been held that no citizen can be said to have waived breach of fundamental rights guaranteed under Article 14 of the Constitution of India. In the above decision, it has further been observed that Article 14 carries a command issued by the Constitution to the State as a matter of public policy with a view to implement its object of ensuring equality of status and opportunity, which every welfare State, such as India, is by her Constitution expected to do and no person can, by any act or conduct, relieve the state of the solemn obligation imposed on it by the Constitution. 25. As has been noted above, this is also a case where the respondents have acted in breach of the fundamental rights of the petitioner guaranteed to him under Article 14 and 16(1) of the Constitution by failing to consider his case for promotion at a time when it was due. Moreover, this is not a case where any parallel right has accrued in favour of any third party due to the delay since the petitioner is not seeking any relief against the private respondent. Moreover, this is not a case where any parallel right has accrued in favour of any third party due to the delay since the petitioner is not seeking any relief against the private respondent. The respondents have also not questioned the maintainability of the writ petition on the ground of delay. Therefore, in the absence of any pleaded impeachment of the writ petition on the ground of maintainability, this court is not inclined to non-suit the petitioner only on the ground of delay. 26. The present is a clear case where the petitioner was deprived of his rightful promotion due to the sheer apathy on the part of the respondents in failing to promote him to the rank of Executive Engineer. By failing to consider his case for promotion with effect from the date on which his junior was promoted, the respondents have not only failed to exercise their discretionary jurisdiction vested by the Executive Order of 1997 but have also acted in clear breach of their solemn constitutional obligation cast under Articles and 14 and 16 (1). 27. In the case of Comptroller and Auditor General of India Vs. K.s. Jagannathan reported in (1986) 2 SCC 679 , the Supreme Court, after considering a large number of decisions on the question of power of the High Court to issue a Writ of Mandamus, had made the following observations :- "20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion. " [Emphasis supplied] 28. Relying upon the observations made in the case of Comptroller and Auditor General of India Vs. K.s. Jagannathan (supra) and a number of other decision, the Supreme Court had further expounded the law on the scope of judicial review by the Constitutional Courts in the case of Union of India and others Vs. S. B. Vohra and others reported in (2004) 2 SCC 150 , wherein it has been observed : “30. Judicial review is a highly complex and developing subject. It has its roots long back and its scope and extent varies from case to case. It is considered to be the basic feature of the Constitution. The Court in exercise of its power of judicial review would jealously guard the human rights, fundamental rights and the citizens' right of life and liberty as also many non-statutory powers of governmental bodies as regards their control over property and assets of various kinds which could be expended on building hospitals, roads and the like, or overseas aid, or compensating victims of crime.” 29. Again in the case of Mansukhlal Vithaldas Chauhan Vs. State of Gujarat reported in (1997) 7 SCC 622 , the Supreme Court, while dealing with the scope of issuing a writ of mandamus by the Supreme Court and the High Courts, has made the following observations :- “22. Mandamus which is a discretionary remedy under Article 226 of the Constitution is requested to be issued, inter alia, to compel performance of public duties which may be administrative, ministerial or statutory in nature. Statutory duty may be either directory or mandatory. Statutory duties, if they are intended to be mandatory in character, are indicated by the use of the words ‘shall’ or ‘must’. Statutory duty may be either directory or mandatory. Statutory duties, if they are intended to be mandatory in character, are indicated by the use of the words ‘shall’ or ‘must’. But this is not conclusive as ‘shall’ and ‘must’ have, sometimes, been interpreted as ‘may’. What is determinative of the nature of duty, whether it is obligatory, mandatory or directory, is the scheme of the statute in which the ‘duty’ has been set out. Even if the ‘duty’ is not set out clearly and specifically in the statute, it may be implied as correlative to a ‘right’. 23. In the performance of this duty, if the authority in whom the discretion is vested under the statute, does not act independently and passes an order under the instructions and orders of another authority, the Court would intervene in the matter, quash the order and issue a mandamus to that authority to exercise its own discretion." 30. The common refrain running through the aforementioned judicial pronouncements is that in exercise of powers conferred under Article 226 of the Constitution, the High Court would jealously guard the fundamental and other legal rights of the citizens. In discharging its Constitutional duty enjoined by Article 226, the High Court would not only have the jurisdiction to issue a writ of mandamus and give directions to compel performance of discretionary duty conferred upon the Government or a public authority but in an appropriate case, the High Court’s jurisdiction would also extend to passing such order(s) which the public authorities should have passed or ought to have issued had it lawfully exercised its obligations conferred under the Constitution and the laws framed there under. Therefore, if it is found that deliberate inaction or non-performance of Constitutional or statutory duties by the public authorities has resulted into frustrating the constitutional rights of the citizens, the High Court in exercise of powers under Article 226 would be entitled to mould a relief and pass appropriate orders or directions so as to prevent miscarriage of justice. 31. It is trite that the right to be considered from promotion, and not the right to promotion, is a fundamental right. Therefore, under normal circumstances, consideration for promotion is an exercise that would be left to be undertaken by the employer by following the provisions of the relevant rules. 31. It is trite that the right to be considered from promotion, and not the right to promotion, is a fundamental right. Therefore, under normal circumstances, consideration for promotion is an exercise that would be left to be undertaken by the employer by following the provisions of the relevant rules. However, having regard to the overall facts and circumstances of this case, more particularly the fact that the petitioner has retired from service way back in the year 2009, I am of the considered opinion that remanding the matter to the departmental authorities at this belated stage would not only be highly inequitable but the same would also result in further prejudice being caused to the interest of the petitioner. 32. In the light of the discussions made above, this court is of the view that the scale of justice will hang in balance if a writ of mandamus is issued directing the respondents to give notional promotion to the petitioner to the rank of Executive Engineer with retrospective effect from the date on which his immediate junior i.e. the respondent no 5 was promoted. Ordered accordingly. It is, however, made clear that since the petitioner has actually not worked as Executive Engineer in the department even for a single day, hence, having regard to the salutary principle of “no work no pay” he shall not be entitled to the benefit of any arrear salary or allowances from the date of the notional promotion till his retirement. 33. In accordance with the directions issued above, the respondent nos 2, 3 and 4 would initiate necessary steps for ensuring that the difference of pension and other retirement dues are paid to the petitioner as per admissible rules by reckoning his notional promotion, within a period of 90 (ninety) days from the date of receipt of a certified copy of this order. 34. The Writ Petition stands allowed to the extent indicated above. There would be no order as to cost.