JUDGMENT : Heard Mr. M.P. Sarma, learned counsel for the petitioner. Also heard Mr. B. Deka, learned Asstt. S.G.I., for and on behalf of all the respondents. 2. This writ petition has been filed challenging the communication dated 28.06.2010, to the extent it stipulates exhaustion of the select list of departmental examination passed candidates on exhaustion of vacancies for the year 2010 and for a direction to the respondent authorities to promote the petitioners to the cadre of Lower Divisional Clerk (LDC), on the basis of qualification in the departmental examination held in the year 2010. 3. The facts of the instant case is that the petitioner No.1 & 2 were appointed to the post of ‘Pioneer’ on 26.09.2003 and 23.09.2002, respectively. It is an admitted case that while the educational qualification of the petitioner No.1 is a 12th pass, the petitioner No.2 has only passed his matriculation i.e. 10th standard. The fact of the case is that the service of the petitioners were regulated by “the General Reserve Engineering Force Group-C and Group-D Recruitment Rules, 1982” and for promotion to the post of LDC from Group-D employees, the eligibility was matriculation or possessing equivalent qualification and they have to render 5 years regular service, in Group-D post, on the basis of the departmental examination, subject to the following conditions: (i) The maximum age limit for the eligibility for examination shall be 45 years (50 years for the SC/ST employees) and (ii) The maximum numbers of recruits by this method would be limited to 10% of the vacancies, occurring in a year and the unfilled vacancies would not be carried over. 4. At this stage it may also be relevant to take note of the instructions issued vide SIG No. 26139/EG2 dated 25.02.2010 which was a W.T. message, wherein, it has been mentioned that the departmental exam for Lower Division Clerk (LDC) may be conducted from the said year and from the next year on regular basis every year and the departmental exam of the erstwhile Group-D employee for promotion to LDC be conducted on 01.06.2010. The relevant portion of the said WT message is quoted herein below: “HOWEVER PLEASE ENSURE THAT TOTAL NUMBER OF SELECTED CANDIDATES WILL BE LIMITED TO NUMBER OF VACANCIES AGAINST DEPARTMENT EXAM QUOTA FOR THE YEAR AND NO LIST OVER AND ABOVE SUCH VACANCIES COMMA LIKE WAIT LIST COMMA QUALIFIED CANDIDATES LIST WILL BE MAINTAINED COMMA AS THE EXAM SHALL BE CONDUCTED EVERY YEAR.” On the basis of the said WT message, the petitioners along with 54 others appeared in the Departmental examination. 5. The results of the Departmental Examination was issued by a communication bearing No.2061/DE/03/FA2, dated 28.06.2010, whereto an Appendix was enclosed confirming the names of the qualified candidates in alphabetical order. Para 2, 3, 4 & 5 of the said communication, being relevant, is quoted here-in-below: “2) List of candidates who have passed the Departmental Examination held on 01 Jun 2010 for promotion to the post of LDC is circulated as per Appx to this letter for information of all concerned. (3) The list has been prepared in alphabetical order irrespective of the seniority of merit of the individuals and it has no bearing of merit of guarantee for promotion. Final selection will be done only at the time of DPC. (4) The Departmental Examination passed candidates will be considered for promotion to LDC strictly as per Recruitment & Promotion Rules, 1982 according to seniority at their own turn subject to fulfillment of other promotion norms and availability of vacancy. (5) As per Dte instructions issued vide their Sig No.261369/EG2 dated 25 Feb 2010 the number of selected candidates will be limited to number of vacancies against departmental exam quota for the year and no list over and above such vacancies like wait list, qualified list etc will be maintained as the examination shall be conducted every year. Hence, exact vacancy will be worked out as per availability of vacancy at the time of conducting of DPC for the year 2010 and the candidates will be considered for promotion strictly as per their seniority accordingly. After fulfillment of vacancy, the list of remaining candidates will stand void as the examination is to be conducted every year. The details of selected candidates as per the seniority list and vacancy position will be communicated to all concerned after the DPC 2010, scheduled to be held in Oct/Nov 2010.” 6. After fulfillment of vacancy, the list of remaining candidates will stand void as the examination is to be conducted every year. The details of selected candidates as per the seniority list and vacancy position will be communicated to all concerned after the DPC 2010, scheduled to be held in Oct/Nov 2010.” 6. A perusal of the above quoted portion of the said communication stipulates that the candidates, who have passed the departmental examination, held on 01.06.2010, for promotion to the post of LDC, is circulated as per the appendix of that letter for information of all concerned. The said list prepared in alphabetical order and not as per seniority and the final selection will be done only at the time of DPC. It has also been mentioned that the departmental examination passed candidates will be considered for promotion to the post of LDC, strictly as per the Recruitment & Promotion Rules, 1982, according to seniority at their own turn, subject to fulfillment of other promotion norms and availability of vacancy. 7. Para 5 of the said communication is relevant for the purpose of the instant dispute in as much as it stipulates that as per the Dte instructions issued vide Sig No.261369/EG2 dated 25 Feb 2010 the number of selected candidates will be limited to the number of vacancies against departmental exam quota for the year and no list over and above such vacancies like wait list, qualified list etc will be maintained as the examination shall be conducted every year. Hence, exact vacancy will be worked out as per availability of vacancy at the time of conducting of DPC for the year 2010 and the candidates will be considered for promotion strictly as per their seniority. After fulfillment of vacancy, the list of remaining candidates will stand void as the examination is to be conducted every year. In other words, the list so prepared, will remain in force subject to the exhaustion of the vacancy. It was also mentioned that the details of the selected candidates, as per the seniority list and the vacancy position would be communicated to all concerned after the DPC 2010, scheduled to be held in Oct/Nov 2010. 8. In other words, the list so prepared, will remain in force subject to the exhaustion of the vacancy. It was also mentioned that the details of the selected candidates, as per the seniority list and the vacancy position would be communicated to all concerned after the DPC 2010, scheduled to be held in Oct/Nov 2010. 8. The petitioners who were eligible at that relevant point of time, had appeared in the said departmental examination and their names were enlisted to Appendix-A to the communication, dated 28.06.2010, at Serial Nos.40 and 48, which was maintained in the alphabetical manner. At this stage, it may be relevant herein to mention that 56 numbers of candidates including the present petitioners have passed the said departmental examination, held in the year 2010 for promotion to the cadre of LDC and the DPC, constituted in connection thereof promoted 37 numbers of incumbents, in terms of their seniority. However, one incumbent by the name of Sanjay Kumar opted out. At this stage, it may be relevant herein to mention that the petitioners do not have any grievance as regards the promotion being granted to 36 incumbents in terms of their seniority. 9. On the basis of the affidavit-in-opposition, filed by the respondents, it also appears that the DPC, 2010 was held in between 8th of November, 2010 to 20th November, 2010 and there were 37 vacancies against 10% DPC quota. Although in the said affidavit-in-opposition, it has been mentioned that 37 numbers of candidates were promoted to the rank of LDC, as per their seniority but from the table mentioned in paragraph 6 of the affidavit-in-opposition, 37 numbers of persons were provided for promotion in the DPC of 2010, however the number of PCPO issued was 36, as one Sanjay Kumar, a Painter whose name was approved for promotion to the post of LDC but that individual was reappointed as Storeman. From the table, it appears that 19 numbers of qualified persons were not promoted in the DPC, due to lack of vacancies. 10. At this stage, it may be relevant herein to mention that there was an SOP for departmental promotion, enclosed as Annexure-VI to the said affidavit-in-opposition, which lays down the SOP for conducting departmental examination, as per the GREF Group ‘C’ and Group ‘D’ Recruitment Rules, 1982. 10. At this stage, it may be relevant herein to mention that there was an SOP for departmental promotion, enclosed as Annexure-VI to the said affidavit-in-opposition, which lays down the SOP for conducting departmental examination, as per the GREF Group ‘C’ and Group ‘D’ Recruitment Rules, 1982. Rule 4 of the said SOP stipulated that passing of Departmental Examination does not confer any right of promotion on the individual, nor does the merit or year of passing of the test. This SOP was dated 03.01.1989. 11. After the departmental examination, which was held in the year 2010, an SOP was issued on 16th August, 2011, for departmental examination. In terms of the said SOP, the words “Group ‘D’ employees” were substituted by “Group ‘C’ employees with grade pay of Rs.1800/-” and the educational qualification which was earlier matriculation, was enhanced to 12th pass from a recognized Board or equivalent. Neither the SOP dated 03.01.1989 nor the SOP dated 16.08.2011 has been put to challenge. 12. Thereafter, on 09.07.2012 a fresh set of Rules had come into existence in supersession of the General Reserve Engineer Force Group C and Group D Recruitment Rules, 1982, (for short the Rules of 1982) insofar as they relate to the Upper Division Clerk, Lower Division Clerks, Supervisory Non-technical Grade-II etc. These rules are known as the Ministry of Road Transport and Highways, Border Roads, General Reserve Engineer Force (Border Roads Organization) Group C post recruitment Rules, 2012 (for short of Rules of 2012). 13. In terms with the Rule 4 of the said Rules of 2012, the method of recruitment, age limit, qualification and other matters relating thereto, was specified in columns 5 to 13 of the Schedule. This Court for the purpose of adjudication of the instant case is concerned with Sl. No.2 which relates to Lower Division Clerk. In column No. 7 the educational and other qualifications required for direct recruits for the purpose of Lower Division Clerk. As per the new Rules of 2012, 10+2 from a recognized Board or equivalent, amongst others, have been held to be the educational and other equivalent required for direct recruits. No.2 which relates to Lower Division Clerk. In column No. 7 the educational and other qualifications required for direct recruits for the purpose of Lower Division Clerk. As per the new Rules of 2012, 10+2 from a recognized Board or equivalent, amongst others, have been held to be the educational and other equivalent required for direct recruits. The column No. 8 stipulates as to whether age and educational qualification prescribed for direct recruits will apply in the case of promotees and it has been mentioned that the age in respect of direct recruits shall not apply whereas, the educational qualification as required for direct recruits shall apply. Thus a reading of column 7 and column 8 of the Rules of 2012 insofar as Lower Division Clerk, the educational qualification has been enhanced to 10+2 from a recognized board or equivalent and other qualifications. Column 11 relates to recruitment by promotion or deputation/absorption, grades from which promotion or deputation/absorption to be made. From a perusal of the requirement, it reveals that from Group C staff in the grade pay of Rs. 1800/-and possession of educational qualifications prescribed for direct recruits in column 7 in the following manner; (i) 5% on the basis of seniority cum fitness with 3 years regular service in the grade, and (ii) 10% through departmental qualifying examination with 3 years regular service in the grade. It may also be relevant to take note of the Note 2 which stipulates that if more of such employees than the number of vacancies available qualified the said examination, such excess number of employees shall be considered for filling the vacancies arising in the subsequent year so that the employees qualifying at an earlier examination are considered before those who qualify at a later examination. This Note 2 is a departure from the Rules of 1982 as well as the SOP’s as well as various communications issued under the rules of 1982. This Note 2 is a departure from the Rules of 1982 as well as the SOP’s as well as various communications issued under the rules of 1982. It is on the basis of this note two, that a standard operating procedure for departmental examination through DPC method dated 20.2.2013 was issued by the concerned respondent authorities and therein a clause 3 has been inserted which is quoted herein below: “RULE POSITION The policy says, if the number of employees, who have passed the Departmental Examination, is more than the number of vacancies such excess number of employees shall be considered for filling vacancies arising in the subsequent years, so that the employees who have qualified at an earlier date of examination are considered before those who qualify at a later date of examination. In other words, candidates who have once passed Departmental Examination need not appear for the Departmental Examination again.” A perusal of the said Clause 3 of the SOP issued on 20.02.2013 would clearly show that the same had been done in terms with Note 2 of the Rules of 2012. 14. In the backdrop of the aforesaid facts, let this Court taken into consideration the respective submission of the parties. The learned counsel for the petitioner submits that the communication dated 28.02.2010 is arbitrary, inasmuch as, the list stands exhausted with the exhaustion of the vacancies. The learned counsel submits that the Rules of 1982 does not stipulate that the list stands exhausted on the basis of the exhaustion of the vacancy and this aspect of the matter is further clear from Note 2 of the Rules of 2012 and the SOP dated 20.02.2013. He further submits that although the respondent department had held examination for the year 2010, but in spite of vacancies having arisen for the year 2011, no examination was held for which the petitioner No. 2 have been deprived from being considered for promotion to the post of the LDC. He further submits that basing upon the SOP dated 20.02.2013, the petitioner No.1 was under the belief and impression and that the same list of 2010 shall continue and the petitioner No.1 would be accommodated against the existing vacancy. He further submits that basing upon the SOP dated 20.02.2013, the petitioner No.1 was under the belief and impression and that the same list of 2010 shall continue and the petitioner No.1 would be accommodated against the existing vacancy. He further submits by drawing the attention of this Court to the Affidavit-in-Opposition filed by the respondents that although 56 persons have qualified in the departmental examination for filling up of 37 posts but only 36 posts were filled and the remaining one post was not filled to which the petitioner No. 2 ought to have been considered for promotion. 15. On the other hand, the learned counsel for the respondent submits that vide the WT message dated 25.02.2010, it was made clear that the total number of selected candidates would be limited to the number of vacancies against the departmental examination quota for the year and no list over and above such vacancies like wait list, qualified candidates list will be maintained as the examination shall be conducted every year. On the basis of the said WT message, the departmental examination was held on 01.06.2010, wherein 56 incumbents have qualified including the petitioners who were at Sl. Nos. 40 and 48. He submits that the said list was prepared in alphabetical manner and on the basis of seniority 37 posts were filled up. As regards the submissions which were being made by the learned counsel for the petitioner that only 36 posts were filled up but one post was vacant the learned counsel for the respondents submits that the said post was also filled up on the basis of seniority by the immediate junior to Mr. Sanjay Kumar. He further submitted that Rules of 1982 mentioned about the departmental examination and by way of executive instructions i.e., WT message dated 25.02.2010 as well as the communication dated 28.6.2010, it was made clear that the said list was valid for one year and would stand exhausted upon the exhaustion of the vacancies. He further submitted that the Rules of 2012 is a departure from the Rules of 1982 and the SOPs and the instructions issued under the Rules of 1982. He submits that as per the Rules of 2012, the educational qualification required is 10+2. He further submitted that the Rules of 2012 is a departure from the Rules of 1982 and the SOPs and the instructions issued under the Rules of 1982. He submits that as per the Rules of 2012, the educational qualification required is 10+2. The Note 2 to the Rules of 2012 in the case of LDC categorically mentions that if the list prepared after the departmental examination is not exhausted by the filling up of the post, than the said list shall be continued till such excess number of employees shall be considered for filling the vacancies arising in the subsequent year, so that the employees qualified at an earlier examination are considered before those who qualify at a later date. He further submits that it is in that perspective that the SOP dated 20.03.2013 was issued. He further submits that the petitioner No. 1 who was otherwise qualified and had the educational qualification had not appeared for the departmental examination for the year 2012 as well as subsequent thereto. As regards the petitioner No. 2, he is not qualified to appear pursuant to the coming into effect of the Rules of 2012. He, therefore, submits that the petitioners are not entitled to the relief as sought for, more so, taking into consideration that the petitioner have approached this Court after a period of more than 3 years from the time the petitioner has not been promoted and has only been filed on the basis of Rules 2012 which would only apply in respect to vacancies arising in the said year. 16. I have the learned counsel for the parties at length and given my anxious consideration. 17. A perusal of the Rules of 1982 shows that for promotion from Group-D employees to the Lower Division Clerk the educational qualification was matriculate or possessing equivalent qualification and have rendered 5 years regular service in the Group D post on the basis of departmental examination. It also stipulates that the maximum number of recruits by promotion would be limited to 10% of the vacancies occurring in a year and unfilled vacancies would not be carried over. As already stated hereinabove, the Rules of 1982 does not have a para materia provisions similar to Note 2 of the Rules of 2012 in so far as LDC part is concerned. As already stated hereinabove, the Rules of 1982 does not have a para materia provisions similar to Note 2 of the Rules of 2012 in so far as LDC part is concerned. The department vide executive instructions dated 25.02.2010, have made it clear that the total number of selected candidates would be limited to the number of vacancies against the departmental examination quota for the year and no list over and above the vacancies like wait list, qualified candidates list would be maintained as the examination shall be conducted every year. Admittedly these executive instructions so issued has not been put to challenge before this Court. However what has been challenged is the communication dated 28.06.2010 which was issued on the basis of the executive instruction dated 25.02.2010, wherein it has been mentioned that after fulfillment of vacancies, the list of remaining candidates will stand void as the examination is to be conducted every year. Though the learned counsel for the petitioner submits that the said communication dated 28.06.2010 is arbitrary and unreasonable and violates the mandate of Article 14 and 16 of the Constitution of India, but he has not been able to substantiate on what basis he contends that the said communication dated 28.06.2010 is in violation to Article 14 or 16 of the Constitution. It further appears that in the year 2012 the new rules i.e., the Rules of 2012 had come into effect and on the basis thereof, the educational qualification had been raised from matriculation to 10+2. Admittedly, the petitioner No. 1 has the educational qualification but he had not appeared in any departmental examination and the petitioner No. 2 not having the educational qualification could not have appeared in the departmental examination for the year 2012. Under such circumstances the Note 2 of column No.11 in respect to the Lower Division Clerk of the Rules of 2012, are not applicable insofar as the petitioners so also the SOP dated 20.02.2013. Had the petitioner No.1 appeared in the Departmental examination in pursuance to Rules of 2012 and was in the qualified list, the question would have been different in view of Note 2 and the SOP dated 20.02.2013. But that is not case herein as the petitioners claim on the basis of their qualification in terms of the Rules of 1982 and the Departmental examination held on 01.06.2010 18. But that is not case herein as the petitioners claim on the basis of their qualification in terms of the Rules of 1982 and the Departmental examination held on 01.06.2010 18. As regards the contention made by the petitioner that from the affidavit-in-opposition it appears that out of 37 posts, one of the persons namely Sanjay Kumar did not take the promotion and as such, one vacancy still arose and the petitioner No. 2 who is senior to the petitioner No. 1 ought to have considered for promotion on the basis of the seniority. Though the learned counsel for the respondent submits that the said post had been filled up by the incumbent who was the immediate junior to Shri Sanjay Kumar as per his verbal instruction, this Court deems it proper to direct the respondent authorities to take into consideration the case of the petitioner No. 2 for promotion to the post of LDC on the basis of the list prepared in the year 2010, if and only if the petitioner No.2 was the immediate junior to Shri Sanjay Kumar (the person who did not opt for the promotion). 19. With the above observation, the instant petition stands disposed of. No costs.