ORDER : D.N. Patel, J. 1. This Letters Patent Appeal has been preferred by the original respondents of writ petition being CWJC No. 3374 of 1998(R). The writ petition was allowed by the learned Single Judge vide order dated 12th February, 2009. The writ petition was preferred by the respondents wherein it was prayed that the date of promotion from the post of Range Officer of Forest to the post of Assistant Conservator of Forest should have been 30th March, 1990 instead of 12th May, 1992 because the vacancies for the posts of Assistant Conservator of Forest were 47 and not 40 and therefore, seven more Range Officers of Forest should have been given promotion instead of only 40. Learned Single Judge has calculated number of vacancies and has arrived at conclusion that instead of 40 vacancies there were 47 vacancies for the promotional posts and hence, the promotion ought to have been given to the respondents instead of in the year 1992 with effect from 30th March, 1990. As the date of promotion has been altered by the learned Single Judge, this Letters Patent Appeal has been preferred by the State of Bihar. 2. We have heard counsel for the appellants at length. Nobody appeared on behalf of respondent nos. 1 and 2. We have also heard counsel for respondent no. 3, who has nothing to say than to support the appellants. 3. Having heard counsel for the appellants and looking to the facts and circumstances of the case, it appears that there is no right of promotion vested in an employee. There is only right to consider for promotion. This aspect of the matter has been lost sight of by the learned Single Judge while deciding writ petition bearing No. CWJC No. 3374 of 1998(R) vide judgment and order dated 12th February, 2009 and hence, the same deserves to be quashed and set aside. 4. It ought to be kept in mind that there is no legal obligation on the part of the State to fill up all the vacant promotional posts. 5. Even if the promotional posts viz. Assistant Conservator of Forest, are available State has all power, jurisdiction and authority not to give promotion to Range Officer of Forest. Learned Single Judge has unnecessarily entered into the facts that instead of 40 vacancies of the promotional posts there were 47 vacancies. 6. 5. Even if the promotional posts viz. Assistant Conservator of Forest, are available State has all power, jurisdiction and authority not to give promotion to Range Officer of Forest. Learned Single Judge has unnecessarily entered into the facts that instead of 40 vacancies of the promotional posts there were 47 vacancies. 6. It has been stated in paragraph no. 10 of the counter-affidavit filed by the State of Bihar in writ petition bearing No. CWJC No. 3374 of 1998(R) that there were 40 promotional posts and they all have been filled up. In paragraph no.19 of the counter affidavit it has been stated that no junior to the original petitioners was ever promoted. If these two paragraphs viz. 10 and 19 of the counter-affidavit are read together, there was no reason for the learned Single Judge to allow the writ petition because all promotional posts may not be filled up by the State of Bihar. All depend upon the employer that how many promotional posts are to be filled up. Thus, even if there were vacancies of 47 promotional posts, State has all power, jurisdiction and authority to fill up only 40 out of 47 promotional posts. These aspects of the matter have not been properly appreciated by the learned Single Judge while deciding writ petition bearing CWJC No. 3374 of 1998(R) vide judgment order dated 12th February, 2009 and hence, the same deserves to be quashed and set aside. 7. It further appears from the facts of the case that not a single junior to the original petitioners was ever promoted from the post of Range Officer of Forest to the post of Assistant Conservator of Forest. Hence also, they were not entitled to date of promotion as on 30th March, 1990. The original petitioners were promoted on 12th May, 1992. It all depend upon the employer to give promotion to the limited number of employee as per their date of seniority from the feeder posts. All promotional posts may not be filled up by the State. These aspects of the matter have not been properly appreciated by the learned Single Judge. 8. It has been held by the Hon’ble Supreme Court in the case of Syed Khalid Rizvi & others v. Union of India & others, reported in 1993 Supp (3) SCC 575 especially in paragraph nos. 31 as under : “31. These aspects of the matter have not been properly appreciated by the learned Single Judge. 8. It has been held by the Hon’ble Supreme Court in the case of Syed Khalid Rizvi & others v. Union of India & others, reported in 1993 Supp (3) SCC 575 especially in paragraph nos. 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. 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. 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. 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.” (Emphasis supplied). 9. It has been held by the Hon’ble Supreme Court in the case of State of M.P. v. J.S. Bansal & Anr. reported in (1998) 3 SCC 714 especially in paragraph no. 13 as under: “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. 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. 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.” (Emphasis supplied). 10. It has been held by the Hon’ble Supreme Court in the case of Union of India & others v. Sangram Keshari Nayak, reported in (2007) 6 SCC 704 especially in 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.” (Emphasis supplied). 11. Even if there are vacancies in the promotional post, there is no legal obligation to fill up these promotional posts. It has been held by the Hon’ble Supreme Court in the case of The State of Haryana v. Subash Chander Marwaha & others reported in (1974) 3 SCC 220 especially in paragraph nos. 10 & 11 as under: “10. 11. Even if there are vacancies in the promotional post, there is no legal obligation to fill up these promotional posts. It has been held by the Hon’ble Supreme Court in the case of The State of Haryana v. Subash Chander Marwaha & others reported in (1974) 3 SCC 220 especially in paragraph nos. 10 & 11 as under: “10. One fails to see how the existence of vacancies give a legal right to a candidate to be selected for appointment. The examination is for the purpose of showing that a particular candidate is eligible for consideration. The selection for appointment comes later. It is open then to the Government to decide how many appointments shall be made. The mere fact that a candidate's name appears in the list will not entitle him to a mandamus that he be appointed. Indeed, if the State Government while making the selection for appointment had departed from the ranking given in the list, there would have been a legitimate grievance on the ground that the State Government had departed from the rules in this respect. The true effect of Rule 10 in Part C is that if and when the State Government propose to make appointments of Subordinate Judges the State Government (i) shall not make such appointments by travelling outside the list, and (ii) shall make the selection for appointments strictly in the order the candidates have been placed in the list published in the Government Gazette. In the present case neither of these two requirements is infringed by the Government. They have appointed the first seven persons in the list as Subordinate Judges. Apart from these constraints on the power to make the appointments, Rule 10 does not impose any other constraint. There is no constraint that the Government shall make an appointment of a Subordinate Judge either because there are vacancies or because a list of candidates has been prepared and is in existence. 11. It must be remembered that the petition is for a mandamus. This Court has pointed out in Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College, that in order that mandamus may issue to compel an authority to do something, it must be shown that the statute imposes a legal duty on that authority and the aggrieved party has a legal right under the statute to enforce its performance. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College, that in order that mandamus may issue to compel an authority to do something, it must be shown that the statute imposes a legal duty on that authority and the aggrieved party has a legal right under the statute to enforce its performance. Since there is no legal duty on the State Government to appoint all the 15 persons who are in the list and the petitioners have no legal right under the rules to enforce its performance the petition is clearly misconceived.” (Emphasis supplied). 12. It has been held by the Hon’ble Supreme Court in the case of Shankarsan Dash v. Union of India, reported in (1991) 3 SCC 47 especially in paragraph no. 7, 8 and 9 as under: “7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha, Neelima Shangla v. State of Haryana, or Jatendra Kumar v. State of Punjab. 8. In State of Haryana v. Subhash Chander Marwaha 15 vacancies of Subordinate Judges were advertised, and out of the selection list only 7, who had secured more than 55 per cent marks, were appointed, although under the relevant rules the eligibility condition required only 45 per cent marks. 8. In State of Haryana v. Subhash Chander Marwaha 15 vacancies of Subordinate Judges were advertised, and out of the selection list only 7, who had secured more than 55 per cent marks, were appointed, although under the relevant rules the eligibility condition required only 45 per cent marks. Since the High Court had recommended earlier, to the Punjab Government that only the candidates securing 55 per cent marks or more should be appointed as Subordinate Judges, the other candidates included in the select list were not appointed. They filed a writ petition before the High Court claiming a right of being appointed on the ground that vacancies existed and they were qualified and were found suitable. The writ application was allowed. While reversing the decision of the High Court, it was observed by this Court that it was open to the government to decide how many appointments should be made and although the High Court had appreciated the position correctly, it had “somehow persuaded itself to spell out a right in the candidates because in fact there were 15 vacancies”. It was expressly ruled that the existence of vacancies does not give a legal right to a selected candidate. Similarly, the claim of some of the candidates selected for appointment, who were petitioners in Jatendra Kumar v. State of Punjab, was turned down holding that it was open to the government to decide how many appointments would be made. The plea of arbitrariness was rejected in view of the facts of the case and it was held that the candidates did not acquire any right merely by applying for selection or even after selection. It is true that the claim of the petitioner in the case of Neelima Shangla v. State of Haryana, was allowed by this Court but, not on the ground that she had acquired any right by her selection and existence of vacancies. The fact was that the matter had been referred to the Public Service Commission which sent to the government only the names of 17 candidates belonging to the general category on the assumption that only 17 posts were to be filled up. The government accordingly made only 17 appointments and stated before the court that they were unable to select and appoint more candidates as the Commission had not recommended any other candidate. The government accordingly made only 17 appointments and stated before the court that they were unable to select and appoint more candidates as the Commission had not recommended any other candidate. In this background it was observed that it is, of course, open to the government not to fill up all the vacancies for a valid reason, but the selection cannot be arbitrarily restricted to a few candidates notwithstanding the number of vacancies and the availability of qualified candidates; and, there must be a conscious application of mind by the government and the High Court before the number of persons selected for appointment is restricted. The fact that it was not for the Public Service Commission to take a decision in this regard was emphasised in this judgment. None of these decisions, therefore, supports the appellant. 9. Mr Goswami appearing in support of the appeal has contended that in view of the relevant statutory rules, the authorities were under a duty to continue with the process of filling up all the vacancies until none remained vacant. Reference was made to Rule 4 of the Indian Police Service (Cadre) Rules, 1954, Rules 3, 4, 6 and 7 of the Indian Police Service (Recruitment) Rules, 1954 and Regulations 2(1)(a), 2(1)(c), 8 and 13 of the Indian Police Service (Appointment by Competitive Examination) Regulations, 1965. We do not think any of these rules comes to the aid of the appellant. Rule 3 of the Cadre Rules directs constitution of separate cadres for States or group of States, and Rule 4 empowers the Central Government to determine the strength in consultation with the State Governments. The strength has to be re-examined at intervals of 3 years. Rule 3 of Recruitment Rules deals with the constitution of the Service, and Rule 4 the method of recruitment. Rules 6 and 7 give further details in this regard. The learned counsel could not point out any provision indicating that all the notified vacancies have to be filled up. Similar is the position with respect to the Competitive Examination Regulations. Regulation 2(1)(a) defines available vacancies as vacancies determined by the Central Government to be filled on the results of the examination, described in Regulation 2(1)(a). The learned counsel could not point out any provision indicating that all the notified vacancies have to be filled up. Similar is the position with respect to the Competitive Examination Regulations. Regulation 2(1)(a) defines available vacancies as vacancies determined by the Central Government to be filled on the results of the examination, described in Regulation 2(1)(a). Regulation 8 prescribes that the candidates would be considered for appointment to the available vacancies subject to provisions 9 to 12 and Regulation 13 clarifies the position that a candidate does not get any right to appointment by mere inclusion of his name in the list. The final selection is subject to satisfactory report on the character, antecedent and suitability of the candidates. We, therefore, reject the claim that the appellant had acquired a right to be appointed against the vacancy arising later on the basis of any of the rules.” (Emphasis supplied). 13. It has been held by the Hon’ble Supreme Court in the case of State of Orissa & Anr. v. Rajkishore Nanda & others, reported in (2010) 6 SCC 777 especially in paragraph no. 14 to 18 as under: “14. A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate. 15. A Constitution Bench of this Court in Shankarsan Dash v. Union of India held that appearance of the name of a candidate in the select list does not give him a right of appointment. Mere inclusion of the candidate's name in the select list does not confer any right to be selected, even if some of the vacancies remain unfilled. The candidate concerned cannot claim that he has been given a hostile discrimination. 16. A select list cannot be treated as a reservoir for the purpose of appointments, that vacancy can be filled up taking the names from that list as and when it is so required. It is the settled legal proposition that no relief can be granted to the candidate if he approaches the court after the expiry of the select list. A select list cannot be treated as a reservoir for the purpose of appointments, that vacancy can be filled up taking the names from that list as and when it is so required. It is the settled legal proposition that no relief can be granted to the candidate if he approaches the court after the expiry of the select list. If the selection process is over, select list has expired and appointments had been made, no relief can be granted by the court at a belated stage. 17. The instant case is required to be examined in view of the aforesaid settled legal proposition. The 1985 Rules provide for determining the number of vacancies and holding competitive examination ordinarily once in a year. The select list prepared so also is valid for one year. In the instant case, 15 vacancies were advertised with a clear stipulation that the number of vacancies may increase. The authorities had taken a decision to fill up 33 vacancies, thus, a select list of 66 persons was prepared. It is also evident from the record that some more appointments had been made over and above the 33 determined vacancies. Thus, once the selection process in respect of number of vacancies so determined came to an end, it is no more open to offer appointment to persons from the unexhausted list. 18. It is the exclusive prerogative of the employer/State Administration to initiate the selection process for filling up vacancies occurred during a particular year. There may be vacancies available but for financial constraints, the State may not be in a position to initiate the selection process for making appointments. Bona fide decision taken by the appointing authority to leave certain vacancies unfilled, even after preparing the select list cannot be assailed. The courts/tribunals have no competence to issue direction to the State to initiate selection process to fill up the vacancies. A candidate only has a right to be considered for appointment, when the vacancies are advertised and selection process commences, if he possesses the requisite eligibility.” (Emphasis supplied). 14. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, we hereby, quash and set aside the judgment and order dated 12th February, 2009 delivered by the learned Single Judge in CWJC No. 3374 of 1998(R). This Letters Patent Appeal is allowed and disposed of. 14. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, we hereby, quash and set aside the judgment and order dated 12th February, 2009 delivered by the learned Single Judge in CWJC No. 3374 of 1998(R). This Letters Patent Appeal is allowed and disposed of. In view of the final order passed in the said Appeal, all the interlocutory applications also stand disposed of.