JUDGMENT : A.K. GOSWAMI, J. 1. Heard Dr. JL Sarkar, learned Senior counsel appearing for the petitioner. Also heard Mr. SC Keyal, learned Assistant Solicitor General of India appearing for the respondents. 2. This writ petition is directed against the order dated 12.10.2015 passed by the Central Administrative Tribunal (for short ‘CAT’), Guwahati Bench in O.A. No.382/2013 whereby the original application was dismissed. 3. At the outset, essential facts necessary for the purpose of disposal of the writ petition may be noticed. 4. The writ petitioner was appointed as Lower Division Clerk (LDC) in the year 1995 and he had joined as such on 12.6.1995. The All India Radio Group “C” Recruitment Rules, 1994, for short, the Recruitment Rules, provide promotion to the post of next higher post i.e. Upper Division Clerk (UDC) by two modes: 80% by promotion on the basis of seniority and 20% by promotion on the basis of Limited Departmental Competitive Examination (LDCE). The eligibility criterion for the purpose of appearing in LDCE for the post of UDC is 5 years of regular service in the cadre of LDC. The petitioner had completed 5 years of regular service in the cadre of LDC on 12.6.2000. He had appeared in the LDCE for the vacancy that had arisen in the year 2001-02. The examination was held on 26.3.2006. He had also appeared for LDCE for the period of 2002-03 and that examination was held on 27.3.2006. The vacancies were filled up by persons other than the petitioner. Similar vacancy had arisen in the year 2005-06. The grievance of the petitioner originated there from as though required, examination was not held in that year or in subsequent years until 2011 when finally the examination was held for the vacancies that had arisen in the years 2005-06, 2006-07, 2007-08, 2008-09 and 2009-10. The petitioner took part in the examination and on being selected, he was promoted to the post of UDC and he had joined the said post on 23.9.2011. The Recruitment Rules also provide that 20% of the vacancies in the cadre of Head Clerk is to be filled up by LDCE from the cadre of the UDC through eligible persons having 3 years of regular service in the cadre of UDC as on 31st March of the year for which the examination was held. The Recruitment Rules also provide that 20% of the vacancies in the cadre of Head Clerk is to be filled up by LDCE from the cadre of the UDC through eligible persons having 3 years of regular service in the cadre of UDC as on 31st March of the year for which the examination was held. The petitioner on coming to know that LDCE would be held for filling up the post of Head Assistant, had submitted representations before the authorities for the vacancy of the year 2008-09 and had requested for relaxation of eligibility period of 3 years in the cadre of UDC on the ground that if the LDCE for the year 2005-06 had been held in the year 2005-06 itself, the petitioner would have completed the minimum requisite period of 3 years in the cadre of UDC. 5. By a letter dated 19.11.2012, the petitioner was informed that his prayer could not be acceded to and this prompted the petitioner to approach the CAT challenging the aforesaid order dated 19.11.2012 and, amongst others, the order dated 23.9.2011 to the extent of promoting him with prospective effect only. At the same time, a direction was sought to give promotion to the petitioner with retrospective effect from the date when the vacancy had arisen in the year 2005-06 to be filled up by means of LDCE. In the said original application, the petitioner had also claimed arrears of pay consequent upon retrospective promotion being granted as well as seniority w.e.f. the date of vacancy that had arisen in the year 2005-06. 6. It is relevant to note at this juncture that though the petitioner had not completed the period of 3 years from the date of promotion order dated 23.9.2011 when the LDCE for the post of Head Assistant was held, on the strength of the interim order passed by the CAT, the petitioner was permitted to appear in the said examination and it is stated at the Bar that he had emerged as the successful candidate having topped the list. 7. 7. The CAT, upon hearing the learned counsel appearing for the parties and on consideration of the materials on record, had opined that although there was considerable delay in holding the LDCE for the relevant years, the same will not, ipso facto, enable the petitioner to get retrospective promotion with effect from the date of vacancy arising in the year 2005-06. It was further observed that it could not be assumed that the petitioner would have cleared the examination if such examination was held in due time. The CAT, in essence, negated the claim of the petitioner that the delay that had occasioned in holding the LDCE was because of administrative lapses of the department. With those observations and findings, learned CAT held that the promotion of the petitioner could not be antedated and therefore, notwithstanding the fact that he had appeared in the LDCE for the purpose of filling up the post of Head Assistant in the year 2014, he was not eligible to be considered for promotion. 8. It will also be necessary at this point to record the submission of Dr. Sarkar, learned Senior counsel for the petitioner, advanced during the course of proceeding, that the petitioner does not press the prayers made in the original application so far as they relate to claiming of seniority, payment of arrear salary consequent upon grant of retrospective promotion, etc. He submits that the petitioner confines his prayer only to reckon the period of 3 years from the date of vacancy that had arisen in the year 2005-06 for the purpose of LDCE held in the year 2014 for the post of Head Assistant. 9. Dr. Sarkar has submitted that the plea taken by the respondents in the written statement filed before the CAT that the respondents were unable to hold the LDCE in the relevant years because of the pendency of Court proceedings is factually incorrect and he has drawn the attention of the Court to the replies furnished to the application submitted by the petitioner by taking recourse of Right to Information Act, 2005 to contend that there was no embargo in holding LDCE in the year 2005-06. The litigations that were referred to in the written statement pertain to subsequent years and therefore, could not have come in the way of holding the LDCE during the year 2005-06 when vacancy had arisen. The litigations that were referred to in the written statement pertain to subsequent years and therefore, could not have come in the way of holding the LDCE during the year 2005-06 when vacancy had arisen. It is submitted by him that in similar circumstance, when the respondents could not hold LDCE promptly and had effected promotions much later, the department had given antedated promotion w.e.f. the year when the vacancy had arisen. He has also drawn the attention of the Court to a Division Bench judgment of this Court rendered in the case of Union of India and another Vs. Deshbandhu Choudhury [W.P.(C) 4505/2016] through which this Court dismissed the writ petition preferred by the Union of India, which was preferred against the order of the CAT, whereby the applicant before the CAT was given antedated promotion w.e.f. 2.5.2008 notwithstanding the fact that he had joined as Head Clerk on 14.12.2011 pursuant to LDCE having been held for the years 1999-2000, 2001-02, 2002-03, 2003-04 and 2007-08 and 2008-09. He has pointed out that the Special Leave Petition preferred against the said order was also dismissed. In the background of the aforesaid submissions, it is contended by him that ends of justice demands that effective date of promotion of the petitioner be antedated to the date of vacancy which had arisen in the year 2005-06. It is also submitted by him that apart from the fact that the petitioner is not claiming seniority, even otherwise the promotion having been sought on the quota of LDCE, no other person will be affected. 10. Mr. SC Keyal, learned ASGI, while supporting the impugned judgment passed by the CAT, has also relied upon a judgment of the Hon’ble Supreme Court rendered in the case of State of Uttar Pradesh and others Vs. Ashok Kumar Srivastava and another, reported in (2014) 14 SCC 720 , to contend that retrospective effect to promotion cannot be granted unless such a provision is engrafted in the Rules holding the field. Accordingly, he submits that no interference is called for with regard to the order under assailment. 11. We have considered the submissions of the learned counsel appearing for the parties and have perused the materials on record. 12. Accordingly, he submits that no interference is called for with regard to the order under assailment. 11. We have considered the submissions of the learned counsel appearing for the parties and have perused the materials on record. 12. A perusal of the judgment dated 18.1.2018 rendered in the case of Deshbandhu Choudhury (supra) would go to show that it was noted by the Coordinate Bench of this Court that persons similarly situated with the petitioners in the said case were given the benefit of antedated promotion from the year 2006 although LDCEs were held in the year 2006 as well as 2011 and that it was the petitioner in the said case who was only discriminated and was not granted such benefit. It is also seen that in the letter dated 4.8.2017 issued by the Director (E)/Zonal Head of All India Radio addressed to the Director General of All India Radio that notional promotion had been granted from 1st April of the vacancy year to the respective JTS officers of IB(E)S as well as in the case of Diesel Technicians. 13. The factual matrix of the present case is more or less similar to the case of Deshbandhu Choudhury (supra). As held in the case of Ashok Kumar Srivastava (supra), seniority cannot be reckoned from the date of occurrence of the vacancy and promotion cannot be given retrospectively unless it is expressly provided for by the relevant service rules. It is so because seniority cannot be given on retrospective basis where an employee has not even been borne in the cadre and that apart, by doing so it may adversely affect the employees who have been appointed in accordance with law in the interregnum. The judgment in the case of Ashok Kumar Srivastava (supra) was rendered in the context of dispute relating to seniority. The issue relating to seniority will not come into play in the instant case in view of the categorical submission made by Dr. Sarkar that the petitioner is not claiming any seniority from 2005-06 and therefore, the judgment in Ashok Kumar Srivastava (supra) may not be squarely applicable to the facts of the present case. 14. It is noticed that LDCE was not held for many years at a stretch depriving the meritorious candidates in the cadre from climbing in the ladder ahead of others. 15. 14. It is noticed that LDCE was not held for many years at a stretch depriving the meritorious candidates in the cadre from climbing in the ladder ahead of others. 15. In the instant case, as noticed earlier, LDCE for 2005-06 was held after a long period of 6 years in the year 2011. It is also stated at the Bar that the vacancy that had arisen in the year 2009-10 for the post of Head Assistant has not yet been filled up. When the prayer of the petitioner is limited to antedate his promotion to the year 2005-06, only for the limited purpose of completing the period of 3 years to have enabled him to appear in the LDCE held in the year 2014 for the post of Head Assistant, we are of the opinion that in terms of the order that was rendered by the Division Bench in the case of Deshbandhu Choudhury (supra), it will be appropriate to antedate the promotion of the petitioner to the post of UDC to the year 2005-06. Ordered accordingly. 16. In view of the above, it will have to be understood that the petitioner had requisite length of 3 years in the cadre of UDC when he took LDCE for the post of Head Assistant in the year 2014 and therefore, the respondents will appropriately take the LDCE for the post of Head Assistant held in the year 2014 to its logical conclusion. 17. In addition to having taken note of the submission of Dr. Sarkar that the petitioner will not claim any seniority, we deem it appropriate to again reiterate that grant of promotion to the petitioner with effect from 2005-06 shall not affect the seniority position of others. 18. With the above observations and directions, the impugned order of the CAT is interfered with. The writ petition is allowed to the extent as indicated above. No cost.