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2021 DIGILAW 542 (KAR)

Sunil Kumar v. State of Karnataka

2021-04-07

E.S.INDIRESH, SREENIVAS HARISH KUMAR

body2021
JUDGMENT : Indiresh, J. 1. Being aggrieved by order dtd. 25/6/2019 passed in Writ Petition No.105811 of 2015 by the learned Single Judge, dismissing the writ petition, the appellant/petitioner has presented this intra-Court appeal. 2. The petitioner sought for the following relief's in the writ petition: 1. Issue writ of Mandamus or other Order or Direction, directing the respondents to sanction the promotion in favour of the petitioner to the post of Associate Professor (in the Department of Forensic Medicine) with effect from June 2011 with all consequential benefits by considering the representations dtd. 7/7/2011, 1/8/2014 and 13/10/2014 submitted by the petitioner as per AnnexuresB, E and F respectively. 2. Any other appropriate Writ or Order or Direction which deems fit to grant by this Hon'ble Court under the facts and circumstances of the case. 3. It is the case of the petitioner that he was initially appointed as Tutor on ad-hoc/contract basis in the third respondent-Institution for a period from 2/11/2006 to 29/6/2007 and thereafter, he was appointed as Assistant Professor on ad-hoc/contract basis from 1/7/2007 to 17/8/2008. It is further stated in the writ petition that the he was appointed as Assistant Professor in pursuance of the Notification dtd. 18/8/2008 by the respondent-Institution through regular recruitment process. He became eligible for promotion to the next higher post of Associate Professor on completion of four years from 18/8/2008. The eligibility criteria for promotion to the post of Associate Professor is that, one should have four years teaching experience as Assistant Professor along with submission of two research publications in indexed/national journals. Accordingly, the petitioner made representation dtd. 7/7/2011 requesting the respondent-Institution to promote him to the post of Associate Professor as he had attained requisite eligibility criteria. It is further stated by the petitioner that there was a clear vacancy in the third respondent-Institution as there were two sanctioned posts of Associate Professor and one post remained vacant as on the date he became eligible for promotion to the said post. He further contended that though Departmental Promotion Committee (for short hereinafter referred to as 'DPC') met on several occasions for effecting promotion from the cadre of Assistant Professor to the cadre of Associate Professor, the DPC did not take any decision for promotion to the post of Associate Professor. He further contended that though Departmental Promotion Committee (for short hereinafter referred to as 'DPC') met on several occasions for effecting promotion from the cadre of Assistant Professor to the cadre of Associate Professor, the DPC did not take any decision for promotion to the post of Associate Professor. His above representation was also not considered and therefore, the petitioner filed writ petition No.105811 of 2015 before this Court seeking aforementioned reliefs. 4. The defence of the respondent-Institution in the statement of objections is that one Dr. Aadamali Nadaf had approached this Court in Writ Petition No.66735 of 2010, challenging the seniority between the petitioner and himself and this Court, by order dtd. 3/12/2015 set aside the Seniority List dtd. 2/1/2010 made by the third respondent-Institution and further declared that Dr. Aadamali Nadaf was senior to the Petitioner. Accordingly, the respondent-Institution sought dismissal of the writ petition. It is further stated by the respondent-Institution that, this Court, after considering the material on record, by its Order dtd. 7/12/2020, observed that the said Dr. Aadamali Nadaf was promoted from 1/7/2014 earlier to the date of promotion of Petitioner, and since he is senior to the Petitioner in the cadre of Assistant Professor as declared by this Court in Writ Petition No.66735 of 2010 by its order dtd. 3/12/2015, it had to reject the claim made by the petitioner herein seeking retrospective promotion. This Court, further held that mere availability of vacancy would not give any right to the petitioner to seek promotion to the post of Associate Professor, as acquiring qualification or eligibility would also not give any right to the petitioner to seek promotion to the said post. Being aggrieved by the order passed by the learned Single Judge dtd. 25/6/2019, the appellant/petitioner has presented this writ appeal. 5. We have heard Shri Harsh Desai, learned counsel appearing for the appellant; Shri G.K. Hiregoudar, learned Principal Government Advocate for the State; and Shri Vivek Holla for Shri Ramesh Zirali, learned counsel appearing for the Institution; and Shri M.S. Bhagawat, learned counsel appearing for Shri Aravind D. Kulkarni, appearing for respondent No.4. 6. 5. We have heard Shri Harsh Desai, learned counsel appearing for the appellant; Shri G.K. Hiregoudar, learned Principal Government Advocate for the State; and Shri Vivek Holla for Shri Ramesh Zirali, learned counsel appearing for the Institution; and Shri M.S. Bhagawat, learned counsel appearing for Shri Aravind D. Kulkarni, appearing for respondent No.4. 6. Shri Harsh Desai, learned counsel appearing for the appellant contended that the impugned order passed by the learned Single Judge is contrary to the settled principle of law that whenever there is sanctioned and vacant post available for promotional avenue, it is incumbent upon the respondent-Institution to fill-up the said post through promotion. He further contended that Regulations of Medical Council of India (for short 'MCI Regulations') provide for requisite qualification for promotion to the post of Associate Professor, which stipulates that for the promotion to the post of Associate Professor, one has to complete four years of teaching experience in the post of Assistant Professor coupled with two research publications. In the instant case, the appellant possess both the qualifications required promotion to the post of Associate Professor and as on the date of submission of representation by the appellant, the said post remained vacant and therefore, in all probabilities, the respondent-Institution ought to have considered the case of the appellant for promotion to the post of Associate Professor and therefore he argued that the said aspect of the matter was not properly appreciated by the learned Single Judge in the impugned order. Shri Harsha Desai further contended that the third respondent-Institution had three meetings during 2011- 2014, however, it did not consider the claim of the appellant for promotion, which amounts to deprivation of appellant's legitimate right of promotion to the post of Associate Professor. He further contended that the finding recorded by the learned Single Judge in rejecting the writ petition on the ground that the claim of the appellant for promotion cannot be considered as a matter of right and the right of the appellant to claim for consideration of his case for promotion is outside the scope of service jurisprudence is an error and therefore, the impugned order passed by the learned Single Judge requires to be set aside. Shri Harsha Desai, further contended that, right to claim promotion is a fundamental right and denial of promotion is nothing but violation of fundamental right and therefore, action of the respondent-Institution denying promotion to the appellant is violation of Articles 14 and 16 of the Constitution of India. He further contended that, post cannot be kept unfilled when there are eligible candidates available for promotion. The appellant has filed IA.No.III of 2020, and produced certain documents. Referring to the letter dtd. 11/10/2010, marked as document No.1 in IA.No.III of 2020, Shri. Harsha Desai, submitted that teaching experience of the appellant prior to regular appointment on 18/8/2008 could be considered as valid teaching experience for the purpose of promotion to the post of Associate Professor. Appellant has also produced document No.2 and 3 to establish that he had submitted two research publication in National Journals which is one of the requirements for promotion to the post of Associate Professor and accordingly, Shri Harsh Desai contended that the learned Single Judge, without considering the settled principle of law relating to the scope and ambit of claiming promotion by the appellant, has rejected the writ petition on erroneous assumption of facts and law, which requires to be set right in this appeal. In order to substantiate his submission, he has placed reliance on the judgment of the Hon'ble Supreme Court in the case of R. Prabha Devi and Others Vs. Government of India, reported in (1988) 2 SCC 233 , Major General H.M.Singh, VSM Vs. Union of India and Another, reported in (2014) 3 SCC 670 and Dr. (Mrs.) Sandhya Jain Vs. Dr. Subhash Garg and Another, reported in AIR 2000 SC 29 . 7. Shri. Vivek Holla, learned counsel appearing for the respondent-Institution submitted that one Dr. Aadamali Nadaf, approached this Court in Writ Petition No.66735 of 2010 with regard to seniority between himself and the appellant herein and this Court by order dtd. 3/12/2015, allowed the writ petition, set aside the seniority list dtd. 2/1/2010 and declared that the said Dr. Aadamali Nadaf is senior to the petitioner. He further argued that the finding recorded by the learned Single Judge in Writ Petition No.66735 of 2010 was challenged before the Division Bench of this Court by the appellant herein in Writ Appeal No.100040 of 2016 and the Division Bench, by order dtd. 2/1/2010 and declared that the said Dr. Aadamali Nadaf is senior to the petitioner. He further argued that the finding recorded by the learned Single Judge in Writ Petition No.66735 of 2010 was challenged before the Division Bench of this Court by the appellant herein in Writ Appeal No.100040 of 2016 and the Division Bench, by order dtd. 7/12/2020, dismissed the Writ Appeal, consequently confirmed the order dtd. 3/12/2015 passed by the learned Single Judge in Writ Petition No.66735 of 2010. Therefore, he contended that the promotional aspects relating to the petitioner and the said Dr. Aadamali Nadaf has reached finality and being the senior most person in the seniority list of the third respondent-Institution, Dr. Aadamali Nadaf, was placed above the petitioner. He further contended that the appellant herein has no legal right to claim promotion as a matter of right and the appellant's right for consideration of his case for promotion and conferring promotion is well within the realm of the respondent-Institution and it is settled principle of law that, conferring promotion to the employees is in the domain of the Management and therefore, he submitted that the petitioner has not made out a case for interference with the order in the writ petition. Shri Vivek Holla, further contended that availability of vacancy would not give any right to an employee to seek promotion. Emphasising on these aspects, he argued elaborately that, the acquisition or qualification or eligibility would not give any right to the petitioner to seek promotion. He further contended that, Clause 15 of the Bye-laws of respondent No.3-Institution provides that all appointment shall take effect on the day of report to duty by the officials and in the instant case, the petitioner, though appointed as tutor on ad-hoc basis, the relevant date for consideration for promotion to the higher post would be the date on which the petitioner was recruited regularly by Notification dtd. 18/8/2008. He further contended that Clause 12 of the Memorandum of Association of respondent No.3, provides for promotion for higher post and the basis for consideration to the higher post shall be made on the basis of vacancy cum merit from among the qualified members of the staff and seniority would be maintained in the promotion. Hence, he prayed for dismissal of the appeal. Hence, he prayed for dismissal of the appeal. In order to buttress his arguments, Shri. Vivek Holla has placed reliance on the judgment passed by the Hon'ble Supreme Court in V. Sreenivasa Reddy and Others Vs. Government. of A.P. and Others, reported in 1995-Supp.(1) SCC 572, Jasbir Singh Chhabra and Others Vs. State of Punjab and others, reported in 2010 (4) SCC 192 , T.N.Administrative Service Officers Association and Another Vs. Union of India, reported in 2000 (5) SCC 728 , Union of India Vs. K.K. Vadera, reported in 1989-Supp. (2) SCC 625, State of Uttaranchal and Another Vs. Dinesh Kumar Sharma, reported in 2007 (1) SCC 683 and Syed Khalid Rizvi and Others Vs. Union of India, reported in 1993-Supp.(3) SCC 575. 8. Shri. M.S.Bhagwat, learned counsel appearing for the respondent No.4, argued that the respondent No.4 challenged the final gradation list in Writ Petition No.66735 of 2010 and during the pendency of the said writ petition, the respondent No.3-Institution issued promotion order dtd. 1/7/2014 to the respondent No.4 and being aggrieved by the same, the respondent No.4 got amended the writ petition and sought for quashing the promotion order dtd. 1/7/2004 as the said seniority was not prepared as per by-law and the . Learned Single Judge by order dtd. 3/12/2015 allowed the writ petition, inter alia, quashed the seniority list dtd. 2/1/2010 and 1/7/2014 and thereby, directed the respondent-Institution to revise the seniority list in accordance with the Regulation 19 of the Regulations of the Institution. The learned Single Judge opined that the DPC shall adhere to the principles of seniority-cum-merit while considering the promotion to the post of Associate professor. He further contended that the said order of the learned Single Judge was confirmed by this Court in Writ Appeal No.100040 /2016 on 7/12/2020. 9. Shri. M.S. Bhagwat, learned counsel appearing for respondent No.4 vehemently contended that the impugned order passed by the learned Single Judge is just and proper as the appellant has no legal right to claim promotion to the next higher cadre as of right and in order to substantiate his arguments, he places reliance on the judgment passed by the Hon'ble Supreme Court in (1992) 2 SCC 728 , (1995) 2 SCC 40 , (2009) 12 SCC 49 , (2000) 8 SCC 4 , (2003) 10 SCC 513 , (2020) SCC Online SC 223, and prayed for dismissal of the appeal. 10. 10. Shri. G.K. Hiregoudar, Principal Government Advocate supports the impugned order passed by the learned Single Judge and further contended that the appeal deserves to be dismissed on the ground of maintainability as the appellant has no legal right to claim promotion as a matter of right. 11. We have carefully considered the rival submissions made by the learned counsel appearing for the parties. Careful examination of the writ papers would indicate that the appellant was initially appointed as Tutor on ad-hoc basis in the respondent-institution on 2/11/2006 and thereafter, he was promoted as Assistant Professor on ad-hoc basis from 1/7/2007. Consequently, the respondent-Institution had issued recruitment notification dtd. 18/8/2008 and the service of the appellant was confirmed as Assistant Professor. It is the case of appellant that he had completed his Post Graduation Course on 30/6/2007 and completed four years of teaching experience in the post of Assistant Professor and published two papers as per Medical Council of India Regulations 1998 (MCI Regulations) and therefore, he made representation to the respondent-institution on 7/7/2011, seeking promotion to the post of Associate Professor. At this juncture, it is relevant to refer the MCI Regulations, which reads as follows; (B) Reader/Associate Professor (i) As Assistant Professor/Lecturer in Forensic Medicine for five years in a recognized medical college Desirable : (ii) Minimum of four Research publications indexed in Index Medicus/national journals. The above has been further amended vide notification dated 15.12.2009. (i) As Assistant Professor in Forensic Medicine for four years in the recognized medical college. (ii) Minimum of two research publications in indexed/national journals 12. It is also not in dispute that as on 1/11/2011, there were two sanctioned posts of Associate Professor with the Department of Forensic Science medicine and out of the said two posts, one post was remained vacant. Having taken note of the vacancy in the post of Associate Professor, the appellant made representation to the respondent-Institution on 7/7/2011, requesting the respondent-institution to promote him to the post of Associate Professor with effect from June 2011. It is the grievance of the appellant that though DPC meetings were held during the said period, the respondent-Institution did not consider the case of the appellant for promotion to the post of Associate Professor and as such, the appellant has filed Writ Petition No.105811 of 2015, seeking promotion to the post of Associate Professor. It is the grievance of the appellant that though DPC meetings were held during the said period, the respondent-Institution did not consider the case of the appellant for promotion to the post of Associate Professor and as such, the appellant has filed Writ Petition No.105811 of 2015, seeking promotion to the post of Associate Professor. When the things stood thus, the fourth respondent filed Writ Petition No.66735 of 2010 before this Court challenging the final gradation list published by the respondent-Institution and sought for quashing the promotion order dtd. 1/7/2014, issued by the respondent-institution. Appellant herein was arraigned as third respondent in the above writ petition. The learned Single Judge of this Court, by order dtd. 3/12/2015, allowed the writ petition, and set aside the seniority list dtd. 2/1/2010 and promotion order dtd. 1/7/2014. The operative portion of the order dtd. 3/12/2015, at para 17 reads as under: "17. For the reasons stated above, this petition is hereby allowed. The seniority list dtd. 2/1/2010, and promotion order dtd. 1/7/2014 are hereby set aside. The respondent No.2 is directed to revise the Seniority List in accordance with Regulation 19 of the Regulations. The respondent No.2 is further directed to reconvene the DPC. The DPC is expected to make its recommendation strictly on the basis of seniority-cum-merit. It is further directed that in case the petitioner were to be promoted to the post of Associate Professor, the said promotion shall be deemed to have been made from 1/7/2014. After all, the petitioner cannot be expected to suffer any loss for no fault of his. The said exercise of convening the DPC meeting and recommendation of DPC to be sent shall be carried out within one month from the date of the receipt of the certified copy of this order. No order as to costs." Regulation 19 of the MCA Regulations reads as under; "19. Seniority: (b) The Seniority of the employees in each category shall be determined by the order of merit in which they were selected for appointment to the cadre in question subject wise in respect of teaching cadres. In respect of non-teaching staff cadre-wise seniority list will be prepared and published." 13. The terms and conditions of the respondent-Institution with regard to consideration of the candidates, who had been appointed on ad-hoc basis reads as under: 14. In respect of non-teaching staff cadre-wise seniority list will be prepared and published." 13. The terms and conditions of the respondent-Institution with regard to consideration of the candidates, who had been appointed on ad-hoc basis reads as under: 14. Be that as it may, the appellant herein has challenged the order dtd. 3/12/2015, passed by the learned Single Judge of this Court in Writ Petition No.66735 of 2010 before the Division Bench in Writ Appeal No.100040 of 2016. The Division Bench of this Court, after considering the Bye-laws of the respondent-Institution, which provides for seniority-cummerit, dismissed the writ appeal filed by the appellant herein and thereby confirmed the order passed by the learned Single Judge in Writ Petition No.66735/2010 dtd. 3/12/2015. 15. Learned counsel appearing for the parties, submitted in chorus that the said order dtd. 7/12/2020 passed by the Division Bench has reached finality, as the appellant has not challenged the same before the Apex Court. 16. Perusal of the terms and conditions of the bye-laws of the institution substantiates that the Institution has followed the principle of seniority-cum-merit while promoting the in service candidates from the post of Assistant Professor to the post of Associate Professor. This aspect of the consideration of the case of the appellant and the respondent No.4 was considered by the learned Single Judge at paragraph 16 of the judgment rendered in Writ Petition No.66735/2010. This Court held that both the appellant and the fourth respondent fulfilled the minimum eligibility criteria with regard to their education, teaching experience and publications made there-under, however, it is the categorical observation made by this Court that the fourth respondent was senior to the appellant herein, and therefore, directed the DPC to recommend the fourth respondent for promotion to the post of Associate Professor. This aspect of the observation made by the learned Single Judge was confirmed in the writ appeal stated supra. In this regard, it is useful to refer the law declared by the Hon'ble Supreme Court in the case of B.V.Sivaiah Vs. This aspect of the observation made by the learned Single Judge was confirmed in the writ appeal stated supra. In this regard, it is useful to refer the law declared by the Hon'ble Supreme Court in the case of B.V.Sivaiah Vs. K.Addanki Babu, reported in 1998 (6) SCC 720 , wherein the observation made is as under: "We thus arrive at the conclusion that the criterion of 'seniority-cum-merit' in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency of administration the senior, even though less meritorious, shall have priority and a comparative assessment of merit is not required to be made. For assessing the minimum necessary merit the competent authority can lay down the minimum standard that is required and also prescribe the mode of assessment can be made by assigning marks on the basis of appraisal of performance on the basis of service record and interview and prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum-merit. (emphasis added) 17. In view of the law declared by the Hon'ble Supreme Court referred to above and the observation made by this Court in the writ petition and writ appeal referred to above, it becomes clear that the respondent No.4 is senior-most candidate to be considered for the purpose of promotion to the post of Associate Professor in the respondent-Institution. 18. Though the learned Counsel appearing for the appellant places reliance on the judgment of the Hon'ble Supreme Court in Prabhadevi's case supra to the effect that mere seniority will not entitle one for promotion, however, in the instant case, the relevant regulation of the respondent-Institution connotes - seniority-cum-merit and therefore, the said judgment is not applicable to the case on hand. 19. Learned counsel appearing for the appellant emphasised on the judgment of the Hon'ble Supreme Court in the case of Major General H.M.Singh, stated supra and Sandya Jain (supra). We have carefully considered the law declared by the Hon'ble Supreme Court in the aforementioned judgments, but the same is not applicable to the facts on hand, as the non-consideration of the claim of appellant for the post of Associate Professor cannot be considered as violation of Articles 14 and 16 of the Constitution of India, unless the respondent-Institution promotes a candidate junior to the appellant. No such discrimination had been made by the respondent-Institution. No such discrimination had been made by the respondent-Institution. In the instant case, admittedly, the respondent No.4 is the senior most candidate as per the regulation 19 of the MCI Regulations as well as bye-law 20 of the Institution and therefore the aforementioned judgments referred to by the learned counsel appearing for the appellant cannot be made applicable to the facts of this case and not to be accepted in these appeals. 20. It is settled principle of law that, no employee has right to promotion but he only has the right to be considered for promotion. This aspect of the principle was enunciated by the Hon'ble Supreme Court in the case of Syed Khalid Rizvi V. Union of India reported in 1993 Supp. (3) SCC 57, paragraph 30 and 31 of the judgment, reads as under: "30. The next question is whether the seniority is a condition of service or a part of rules of recruitment? In State of M.P. and Ors. v. Shardul Singh, this Court held that conditions of service means all those conditions which regulate the holding of a post by a person right from the time of his appointment (emphasis Supplied) to his retirement and even beyond, in matters like pensions etc. In I.N. Subba Reddy v. Andhra University and Ors. , the same view was reiterated. In Mohd. Shujat Ali and Ors. etc. v. Union of India and Ors. etc., Constitution Bench held that the rule which confers a right to actual promotion or a right to be considered for promotion is a rule prescribing a condition of the service. In Mohd. Bhakar v. Krishna Reddy 1970 S.L.R. 768, another Constitution Bench held that any rule which affects the promotion of a person relates to his condition of service. In State of Mysore v. G.B. Purohit C.A. No. 2281 of 1965 dt. 25/1/1967, this Court held that a rule which merely effect chances of promotion cannot be regarded as varying a condition of service. Chances of promotion are not conditions of service. The same view was reiterated in another Constitution Bench judgment in Ramchandra Shankar Deodhar and Ors. v. The State of Maharashtra W.P. No. 299 of 1969 dt. Nov. 12, 1973. No doubt conditions of service may be classified as salary, confirmation, promotion, seniority, tenure or termination of service etc. Chances of promotion are not conditions of service. The same view was reiterated in another Constitution Bench judgment in Ramchandra Shankar Deodhar and Ors. v. The State of Maharashtra W.P. No. 299 of 1969 dt. Nov. 12, 1973. No doubt conditions of service may be classified as salary, confirmation, promotion, seniority, tenure or termination of service etc. as held in State of Punjab v. Kailash Nath , by a bench of two Judges. But it must be noted the context in which the law therein was laid. The question therein was whether non-prosecution for a grave offence after expiry of four years is a condition of service? While negativing the contention that non-prosecution after expiry of 4 years is not a condition of service, this Court elaborated the subject and the above view was taken. The ratio therein does not have any bearing on the point in issue. Perhaps the question may bear relevance, if an employee was initially recruited into the service according to the Rules and Promotion was regulated in the same rules to higher echelons of service. In that arena promotion may be considered to be a condition of service. In A.K. Bhatnagar v. Union of India , this Court held that seniority in an incidence of service and where the service rules prescribe the method of its computation it is squarely governed by such rules. In their absence ordinarily the length of service is taken into account. In that case the direct recruits were made senior to the recruits by regularisation although the appellants were appointed earlier in point of time and uninterruptedly remained in service as temporary appointees alongwith the appellant but later on when recruited by direct recruitment they were held senior to the promotees. 31. No employee has a right to promotion but he has only 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 U.P.S.C, after considering the objections if any by the Central Govt. is also a condition precedent. 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 U.P.S.C, after considering the objections if any by the Central Govt. 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 provides 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. Candidate thereafter contend that since 'B' and 'C' were appointed by virtue of the reservation, though were less meritorious and juniors to him in the State service and gradation list would not become seniors 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 Seniors and 'A' became junior in the Central Services. 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 Seniors 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 the recruitment and not a condition of service. Accordingly we hold that seniority, though, normally an incidence to 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) 21. Hon'ble Supreme Court in the case of Union of India and Others Vs Colonel G.S. Grewal reported in (2014)7 SCC 303 has held that claiming future chances of promotions are concerned, no vested right accrues as chance of promotion is not a condition of service. 22. Ruling of the aforesaid principle would make it clear that promotion is not a vested right of an employee and it is a normal incident of service and not a fundamental right. It is also equally true that an employee certainly has right to be considered for promotion, however, he has no right to claim promotion and he would have a right to seek his case for promotion when such exercise was undertaken and merely because a post fell vacant and a person though eligible could not seek a direction to the appointing authority to appoint and/or promote. It is trite law that, a promotion takes effect from the date of being granted and not from the date of occurrence of the vacancy or creation of post. In this regard, it is useful to refer the law declared by the Hon'ble Supreme Court in the case of Union of India Vs. K.K. Vadera and Others reported in 1989 Supp. (2) SCC 625, Apex Court, at paragraph 5 of the judgment has held as follows; "5. There is no statutory provision that the promotion to the post of Scientist 'B' should take effect from 1st July of the year in which the promotion is granted. K.K. Vadera and Others reported in 1989 Supp. (2) SCC 625, Apex Court, at paragraph 5 of the judgment has held as follows; "5. There is no statutory provision that the promotion to the post of Scientist 'B' should take effect from 1st July of the year in which the promotion is granted. It may be that, rightly or wrongly, for some reason or other, the promotions were granted from 1st July, but we do not find any justifying reason for the direction given by the Tribunal that the promotions of the respondents to the posts of Scientists 'B' should be with effect from the date of the creation of these promotional posts. We do not know of any law or any rule under which a promotion is to be effective from the date of creation of the promotional post. After a post falls vacant for any reason whatsoever, a promotion to that post should be from the date the promotion is granted and not from the date on which such post falls vacant. In the same way when additional posts are created, promotions to those posts can be granted only after the Assessment Board has met and made its recommendations for promotions being granted. If on the contrary, promotions are directed to become effective from the date of the creation of additional posts, then it would have the effect of giving promotions even before the Assessment Board has met and assessed the suitability of the candidates for promotion. In the circumstances, it is difficult to sustain the judgment of the Tribunal." 23. It is also settled principle that even if a candidate was eligible for promotion and when such promotional post fell vacant at an earlier date, his seniority should be reckoned only from the date of his substantive appointment to the vacant post under the Rules and not retrospectively from the date of occurrence of vacancy, since a candidate has no right to claim promotion and seniority from the date when the vacancy arose. It is well settled that date of occurrence of vacancy is not relevant and the employer is free not to fill up the vacancy. 24. In this regard, it is apt to follow the law declared by the Hon'ble Supreme Court in the case of T.N. Administrative Service Officers Association Vs. It is well settled that date of occurrence of vacancy is not relevant and the employer is free not to fill up the vacancy. 24. In this regard, it is apt to follow the law declared by the Hon'ble Supreme Court in the case of T.N. Administrative Service Officers Association Vs. Union of India, reported in (2000) 5 SCC 728 , at paragraph 18 held as follows; "It is a well- settled principle in service jurisprudence that even when there is a vacancy, the State is not bound to fill up such vacancy nor is there any corresponding right vested in an eligible employee to demand that such post be filled up. This is because the decision to fill up a vacancy or not vests with the employer who for good reasons; be it administrative, economical or policy, decide not to fill up such post(s). (See The State of Haryana v. Subhash Chander Marwaha and Ors. This principle applies with all the more force in regard to the creation of new vacancies like by encadrement of new posts; more so when such encadrement or creation of new posts is statutorily controlled. We have noticed earlier that the Cadre Regulations and the Recruitment Rules require the Central Government to follow a particular procedure and make necessary consultations before fixing or re-fixing the cadre strength. In such a situation, issuance of a mandamus to increase the cadre strength or to encadre a particular post merely on the basis of long existence of these posts would be inappropriate." 25. The Apex Court in the case of State of Uttaranchal and Another Vs. Dinesh Kumar Sharma, reported in (2007)1 SCC 683 , at paragraph 24 held as follows; "24. With regard to the issue as to whether the respondent has the right to claim promotion and seniority from 1995-96 when the vacancy arose or whether seniority will be reckoned from the date of substantive appointment which is 1999, it can be observed that an employee will be considered member of a cadre from the date of his/her substantive appointment in the cadre after selection." 26. We have carefully considered the arguments advanced by the learned counsel for the appellant that the respondent institution ought to have considered the date on which the appointment of the appellant on ad-hoc basis. This submission was made to consider the total experience of the appellant in the respondent-institution. We have carefully considered the arguments advanced by the learned counsel for the appellant that the respondent institution ought to have considered the date on which the appointment of the appellant on ad-hoc basis. This submission was made to consider the total experience of the appellant in the respondent-institution. In this regard, it is settled principle that as stated supra, an employee will be considered of a cadre from the date of his/her substantive appointment in the cadre after selection. Suffice to say that, unless a selection is made in accordance with the rules and in the absence of rules, in accordance with the procedure prescribed for the time being issued by the Government, there can be no automatic promotion or appointment to any post, unless such promotion is or appointment is sanctioned. (see State of Uttaranchal stated supra). 27. In the instant case, though the appellant was appointed on 1/7/2007 on contract basis as Assistant Professor, but, for all practical purposes his promotion is to be calculated from the date on which he reported for duty on 18/8/2008, as per the recruitment notification issued by the Government. The Hon'ble Supreme Court in the case of V. Sreenivasa Reddy and Others Vs. Government of A.P and others, reported in 1995 Supp. (1) SCC 572, at paragraphs 14 to 16 held as follows : "14. It is now well settled law that appointment/promotion must be in accordance with the Rules, direct recruitee takes his seniority from the date on which he starts discharging the duty of the post borne on the cadre While a temporary appointee appointed de hors the rules or on ad hoc basis or to a fortuitous vacancy gets seniority from the date of regular appointment. 15. It is settled law by the judgment of the Constitution Bench in Direct Recruits Class II Officers Association v. State of Maharashtra, that appointment in accordance with Rules is a condition precedent to count seniority. Temporary or act hoc or fortuitous appointments etc. are not appointments in accordance with the Rules and the temporary service cannot be counted towards the seniority. Delhi Water Supply and Sewage Disposal Committee v. R.K. Kashyap, Masood Akhatar Khan v. State of M.P., D.N. Agrawal v. State of M.P., State of Tamil Nadu v. E. Paripoamam, Excise Commissioner, Karnataka v. Sreekanta. 16. are not appointments in accordance with the Rules and the temporary service cannot be counted towards the seniority. Delhi Water Supply and Sewage Disposal Committee v. R.K. Kashyap, Masood Akhatar Khan v. State of M.P., D.N. Agrawal v. State of M.P., State of Tamil Nadu v. E. Paripoamam, Excise Commissioner, Karnataka v. Sreekanta. 16. In Keshav Chandra Joshi v. Union of India, the seniority is to be counted from the date on which appointment was made to the post in accordance with the rules. The previous temporary service should be considered to be fortuitous. In Union of India v, S.K. Sharma, this Court held that the approval of the UPSC for continuation in ad hoc post for the purpose of granting pay and allowances, would not amount to regular appointment and ad hoc services cannot be counted for deter-mining seniority by the selection by PSC vide Vijay Kumar Jain v. State of Madhya Pradesh. In K.C. Joshi's case, this Court held that employee would become a member of service only from the date of his appointment according to rules. In A.M. Sehgal v. Raja Ram, this Court held that where statutory rules link seniority with confirmation seniority cannot be fixed according to length of service and confirmation to a post borne on the cadre is a condition to get seniority. In State of West Bengal v. Gauri Nath Dev, it was held that if ad hoc service is followed by regular service, the benefit of ad hoc service is not admissible if the appointment was in violation of rules. In D.N. Agrawal v. State of Madhya Pradesh, it was held that seniority cannot relate back to the date of temporary appointment." 28. Though the learned counsel appearing for the appellant contended that the respondent-institution has deprived his fundamental right to promotion, however, no plea was made with regard to malafide on the part of the respondent-institution. Law is well settled that the ground of malafide is not only to be pleaded specifically but also requires to be established. It is equally settled principle that bald and unfounded allegations regarding malafides are not sustainable unless, it is specifically pleaded and proved. Law is well settled that the ground of malafide is not only to be pleaded specifically but also requires to be established. It is equally settled principle that bald and unfounded allegations regarding malafides are not sustainable unless, it is specifically pleaded and proved. Plea based on malafides cannot be accepted in the absence of any specific pleadings/allegation of malafides and the burden to prove such charge of malafides is always on the person who approaches the Court on the ground that the action is vitiated due to malafides. (See Jasabir Singh Chhabra and Others Vs. State of Punjab and Others reported in (2010) 4 SCC 192 , and A.C.Muttaiah Vs. Board of Control for Cricket in India and Another reported in (2011) 6 SCC 617 . 29. We have carefully considered the terms and conditions of the respondent-Institution for consideration of promotion and same would establish the fact that the appointees of the respondent-institution cannot claim their seniority from the date on which they were appointed on ad-hoc basis. The Hon'ble Supreme Court in the case of Union of India through Chandigarh Administration (UT) Chandigarh and Another Vs. S.K.Sharma, reported in (1992) 2 SCC 728 has held that if the initial appointment is not made according to rules, subsequent regularization of his service does not entitle an employee to the benefit of intervening service of seniority. Seniority has to be reckoned from the date of regular appointment and not to be counted from the date of ad-hoc or step of appointment. It is also useful to refer to the law declared by the Hon'ble Supreme Court in the case of State of Gujarat Vs. C.G. Raiyani, it was held that seniority should be counted only from the date of selection and not from the date on which the ad-hoc service was made. The Hon'ble Supreme Court in the case of State of Rajasthan Vs. Jagadish Narayan Chaturvedi, reported in (2009) 12 SCC 49 has held that the ad-hoc appointment is always to a post but not to the cadre/service and is also not made in accordance with the provision contained in the regular rules for regular appointment. Recently, the said principle was reitereated by the Hon'ble Supreme Court in the case of Vinodgiri Goswamy and others Vs. State of Uttarakand and Others, reported in 2020 SCC Online SC 223. We have also noticed the order dtd. Recently, the said principle was reitereated by the Hon'ble Supreme Court in the case of Vinodgiri Goswamy and others Vs. State of Uttarakand and Others, reported in 2020 SCC Online SC 223. We have also noticed the order dtd. 28/5/2016 passed by the respondent-Institution fixing the seniority between the petitioner/appellant and the respondent No.4 which clearly determines the status of the seniority between them. It shows that the respondent No.4 is senior to appellant and this order dtd. 28/5/2016 is not challenged or modified yet and therefore, the appeal deserves to be dismissed on this ground alone. 30. In the instant appeal, after applying the law declared by the Hon'ble Supreme Court in the aforementioned cases and conjunctively reading the order passed by the Division Bench of this Court in the Writ Appeal No.100040 of 2016, it becomes clear that the fourth respondent has been rightly promoted to the post of Associate Professor, being senior to the appellant herein, following the relevant rules of the respondent-institution referred to above. Therefore, we are of the considered opinion that the learned Single Judge having taken note of the fact that the appellant has not made out a case that his was promoted to the post of Associate Professor, upheld the order of the respondent-institution, promoting the fourth respondent to the post of Associate Professor. This order requires no interference in this appeal. Hence, the writ appeal is rejected.