JUDGMENT : The instant intra-court appeal, preferred under Clause 10 of the Letters Patent, is directed against the order/judgment dated 03.07.2019 passed by learned Single Judge of this Court in W.P.(S) No.1834 of 2018 whereby and whereunder the decision as has been taken by the respondents, as contained in Memo No. 1172 dated 12.12.2017, rejecting the claim of the writ petitioner for promotion from Class-IV post to Class-III post, has been refused to be interfered with while dismissing the writ petition. 2. Brief facts of the case as per the pleadings made in the writ proceeding, which are required to be enumerated herein, read as under :- The writ petitioner was appointed on 15.4.1989 to the post of Peon under Kolhan Division of the then Human Resource Development Department (now known as School Education & Literacy Department). The State of Bihar issued a Resolution by Circular contained in Memo No. 335 dated 16.9.1992, whereby and whereunder, 50% posts of Class-III employees were required to be filled up from amongst Class IV employees. The qualification of the writ petitioner is Intermediate pass. When the writ petitioner was posted as a peon in the office of Sub-Divisional Education Officer, Chaibasa, Sadar-cum-Saraikella, he was deputed to discharge the duties of Assistant, considering his qualification, as would be evident from the office order contained in Memo No. 241 dated 16.9.1996. The writ petitioner was allowed to discharge the duties of Assistant from 16.9.1996 up to October, 2008 in the office of Sub Divisional Education Officer, Chaibasa. The writ petitioner was transferred in the month of October, 2008 from the office of Sub-Divisional Education Officer, Chaibasa to Primary Teachers Education College, Binsai, in the district of West Singhbhum, where the writ petitioner, at the time of filing of the writ petition, was posted as peon. The grievance of the writ petitioner is that the matter of promotion of Class-IV post to Class-III post was pending in the district of East Singhbhum and, as such, the Deputy Commissioner, East Singhbhum wrote a letter vide letter no. 172 dated 6.2.2002, to the Deputy Secretary of Personnel, Administrative Reforms and Rajbhasa Department, Govt. of Jharkhand. The grievance of the writ petitioner is that the matter of promotion of Class-IV post to Class-III post was pending in the district of East Singhbhum and, as such, the Deputy Commissioner, East Singhbhum wrote a letter vide letter no. 172 dated 6.2.2002, to the Deputy Secretary of Personnel, Administrative Reforms and Rajbhasa Department, Govt. of Jharkhand. In turn, the Deputy Secretary to Government, Personnel, Administrative Reforms and Rajbhasha Department by letter dated 30.4.2002 directed the Deputy Commissioner, East Singhbhum to consider the case of the writ petitioner for promotion from Class-IV post to Class-III post on the basis of the Resolution No.335 dated 16.9.1992, as would be evident from letter No.2714 dated 30.4.2002. The writ petitioner, in the aforesaid backdrop, claiming himself entitled for promotion to Class-III post from Class-IV post, as according to the writ petitioner, juniors to him have been considered and granted promotion, but no such benefit of promotion has been granted to him, however, upgradation in the pay scale under the A.C.P. Scheme as also under M.A.C.P. Scheme has already been granted and, therefore, the writ petitioner claiming himself entitled for regular promotion, made due claim for the same, however, to no effect and, therefore, writ petition has been filed being W.P.(S) No.1834 of 2018, praying therein for grant of promotion to the writ petitioner from Class-IV post to Class-III post. The learned Single Judge has considered the facts in entirety and has also taken into consideration the plea taken by the respondent State of the Jharkhand wherein the plea was taken that the promotion which is required to be given from Class-IV to Class-III is based upon the resolution of the State Government dated 27.03.2010 whereby and whereunder only 15% of the total vacancy is earmarked for regular promotion to Class-III post from Class-IV post and that has also to be filled up by way of Limited Departmental Competitive Examination. According to the State, although the Limited Departmental Competitive Examination was conducted but the writ petitioner has never appeared in any of the Examination and, as such, his case was never considered and, therefore, there is no question of granting promotion without participating in the Limited Departmental Competitive Examination in pursuance to the Circular in vogue, i.e., the Government Circular dated 27.03.2010. Learned Single Judge, after considering the rival submission advanced on behalf of the parties, has come to conclusive finding that the writ petitioner has failed to make out a case for passing a positive direction in his favour and dismissed the writ petition against which the present intracourt appeal has been filed. 3. Mr. Manoj Tandon, learned counsel appearing for the writ petitioner/appellant, has submitted that the consideration for promotion is a fundamental right, therefore, the case of the writ petitioner ought to have been considered but having not done so, the writ petitioner has been deprived from the fundamental right of being considered for promotion from Class-IV post to Class-III post, but this aspect of the matter has not been appreciated by the learned Single Judge in right perspective, therefore, the order impugned requires interference. It has further been submitted that the similarly situated employees, posted in the same district where the writ petitioner is posted, has already been granted promotion and, as such, there is no reason to deny the said benefit and this aspect has also not been properly appreciated by the learned Single Judge. 4. Per contra, Mr. Munna Lal Yadav, S.C.(L&C)-III, appearing for the respondent State of Jharkhand, has submitted by taking aid of circular of the State Government dated 27.03.2010 whereby and whereunder the 15% of the total vacancy of Class-III post has been earmarked to be filled up from amongst Class-IV employees. Further, 15% of the earmarked vacancy, as per the Government Circular dated 27.03.2010, has further been decided to be filled up by way of Limited Departmental Competitive Examination. It has further been submitted that though the Limited Departmental Competitive Examination has been conducted but the writ petitioner has never participated in the said examination and now he is claiming promotion contrary to the decision of the State Government. The aforesaid aspects of the matter has been taken into consideration by the learned Single Judge while dismissing the writ petition. The aforesaid aspects of the matter has been taken into consideration by the learned Single Judge while dismissing the writ petition. Rebutting the contention raised on behalf of the writ petitioner to the effect that the similarly situated employees posted in the district of West Singhbhum has been granted promotion, it has been submitted that the same is absolutely incorrect since the employees in the district cadre have been granted such promotion but the writ petitioner cannot be compared with them since the writ petitioner is under the Education Department having no bearing with the employees working in the Secretariat cadre, since the posting of the writ petitioner is in the Education Department which is not under the district cadre and, as such, different parameter is to be adopted and for such purpose the Government has come up with Circular dated 27.03.2010. Learned counsel, in the aforesaid background, has submitted that learned Single Judge since has passed the order considering the aforesaid aspect of the matter, the same requires no interference. 5. We have heard the learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned Single Judge in the impugned order. 6. The fact which is not in dispute in this case is that the writ petitioner has been appointed on 15.4.1989 to the post of Peon and has been granted upgradation in the pay scale under the A.C.P./M.A.C.P. Scheme. However, he claims promotion from Class-IV to Class-III post, which having not been granted, writ petition has been filed. 7. This Court, on consideration of the material available on record, before entering into the legality and propriety of the impugned order, is required to answer about the applicability of the circular as to whether the circular dated 16.09.1992, as contained in Memo No. 335, is applicable for deciding the claim of the writ petitioner or the circular issued on 27.03.2010? This Court has examined both the circulars and found from the circular dated 16.09.1992, as contained in Memo No. 335, that a policy decision has been taken that 50% of Class-III post is required to be filled up from the Class-IV employees working under the Secretariat and associate offices of the Secretariat as also working under the Muffasil office through Limited Departmental Competitive Examination. The relevant decision as contained in the aforesaid circular reads as hereunder :- ^^fcgkj ljdkj dkfeZd ,oa iz'kklfud lq/kkj foHkkx ladYi iVuk&15] fnukad 16 flrEcj] 1992 fo"k;%&oxZ&3 ds miyC/k fjfDr;ksa esa lfpoky; ,oa layXu dk;kZy;ksa ds fnup;kZ fyfid] Vadd ,oa eqQfLly dk;kZy; ds i=kpkj fyfid vFkok fyfid ds 50 izfr'kr inksa dks visf{kr ;ksX;rk ¼vf/kdre vk;q lhek dks NksM+dj½ j[kus okys prqFkZoxhZ; deZpkfj;ksa ls rFkk lfpoky; ,oa layXu dk;kZy;ksa ds fnup;kZ fyfid@Vaddksa ds 25 izfr'kr inksa ij vfHkys[kokg@dks"kkxkj&ljdkj ls ojh;rk ,oa ;ksX;rk ds vk/kkj ij 60%40 ds vuqikr esa Hkjs tkus ds laca/k esaA --- --- --- --- --- --- ¼d½ oxZ&3 ds ftu&ftu inksa ds 25 izfr'kr inksa ¼fjfDr;ksa½ dks prqFkZoxhZ; deZpkfj;ksa ls lhfer izfr;ksfxrk ijh{kk ls Hkjus dh O;oLFkk gS] mu inksa ds 50 izfr'kr fjfDr;ksa dks U;wure 'kS{kf.kd ;ksX;rk] vuqHko vkfn j[kusokys prqFkZoxhZ; deZpkfj;ksa ls lhfer izfr;ksfxrk ijh{kk ds vk/kkj ij Hkjk tk;sxkA ijUrq ojh;rk dks vf/kekurk nh tk;sxhA ojh;rk ,oa ;ksX;rk dh vf/kekurk 60%40 ds vuqikr esa fu/kkZfjr dh tk;sxhA ;fn fiNys dbZ o"kksZ rd dksbZ ijh{kk gh vk;ksftr ugha dh x;h rks ojh;rk ds vk/kkj ij izksUufr djus dk fopkj fd;k tk;sxkA tgk¡ ijh{kk dh O;oLFkk ugha gS ogka ojh;rk ,oa U;wure ;ksX;rk ds vk/kkj ij izksUufr iznku dh tk;sxhA 3- lfpoky; ,oa layXu dk;kZy;ksa esa fnup;kZ fyfidksa ,oa Vaddksa rFkk eqQfLLky dk;kZy; ds i=kpkj fyfid vFkok fyfidksa ds 50 izfr'kr inksa ij prqFkZoxhZ; deZpkfj;ksa ds lhfer izfr;ksfxrk ijh{kk }kjk fu;qfDr esa rFkk lfpoky; ,oa layXu dk;kZy;ksa ds fnup;kZ fyfid@Vadd ds 25 izfr'kr inksa ij vfHkys[kokg] dks"kkxkj&ljdkj ls lhfer izfr;ksfxrk ijh{kk }kjk fu;qfDr esa ojh;rk dks vf/kekurk nh tk;sxh vkSj ojh;rk ,oa ;ksX;rk esa vf/kekurk dk Øe 60%40 ds vuqikr esa fu/kkZfjr fd;k tk;sxkA ;ksX;rk dk ekin.M lhfer izfr;ksfxrk ijh{kk gksxkA --- --- ---** It is evident from bare perusal of the circular dated 16.09.1992 that the said circular is applicable with respect to Class-IV employees working under the Secretariat and the associate offices of the Secretariat as also Muffasil office. This Court has also examined the circular dated 27.03.2010 wherefrom it is evident as under Condition No. 4(Ka)(i) to the effect that 15% of the vacancy has been earmarked to be filled up by way of appointment from Class- IV employees, the relevant condition reads as hereunder :- ^^>kj[k.M ljdkj dkfeZd] iz'kklfud lq/kkj rFkk jktHkk"kk foHkkxA vf/klwpuk jkaph] fnukad 27@03@2010 la[;k-&7@ uhfr& &01 2008 dk 1749@Hkkjr ds lafo/kku dh vuqPNsn 309 ds ijUrqd esa izkIr 'kfDr;ksa dk iz;ksx djrs gq, >kj[k.M ds jkT;iku ,rn~ }kjk jkT; lHkh ¼lfpoky; ,oa layXu dk;kZy;ksa dks NksM+dj½ {ks=h; dk;kZy;ksa esa fyfid@ fyfid≶&Vadd@ Vadd@vU; fyfidh; lsok lEcxZ esa HkrhZ izksUufr ,oa lsok 'krZ dks fofu;fer djus gsrq fuEufyf[kr fu;ekoyh cukrs gS 1- laf{kIr uke] foLrkj ,oa izkjEHk laf{kIr uke%& ;g fu;ekoyh ^^>kj[k.M jkT; fyfid @fyfid≶&Vadd@Vadd@vU; fyfidh; lsok lEcxZ esa ¼HkrhZ] izksUufr ,oa lsok 'krZ½ fu;ekoyh 2010 gks tk;sxhA foLrkj & bldk foLrkj lEiw.kZ >kj[k.M jkT; esa gksxkA ;g fu;ekoyh lfpoky; ,oa layXu dk;kZy; dks NksM+dj jkT; ds lHkh foHkkxksa ds v/khu lHkh {ks=h; dk;kZy;] lekgj.kky; lUr ds fy, ykxw gksxkA --- --- --- --- --- --- 4- ¼d½ fuEuoxhZ; fyfid ds in ij HkrhZ dh izfØ;k ¼1½ fjfDr dh x.kuk& izR;sd o"kZ 1yh tuojh dks vk/kkj frfFk eku dj fjfDr;ksa dh x.kuk dh tk;sxhA dksfV esa 85 izfr'kr in lh/kh HkrhZ ls rFkk 15 izfr'kr in prqFkZ oxZ ¼lewg ^?k*½ ls fu;qfDr }kjk Hkjs tk;asxsA --- --- ---** It further appears from the circular dated 27.03.2010 that the same has been taken by way of policy decision for it applicability in the regional offices other than the Secretariat cadre and attached offices to the Secretariat. It is, thus, evident that circular dated 16.09.1992 is applicable to the employees working Secretariat cadre or the associate office to the Secretariat or Muffasil offices, while on the other hand, circular dated 27.03.2010 is applicable for the employees working under the Regional offices other than the Secretariat cadre and its attached offices. 8. The admitted fact as per the pleading of the writ petitioner is that the writ petitioner is working under the Education Department in the West Singhbhum district, therefore, he is not under the Secretariat cadre or the associate office to the Secretariat or Muffasil office rather he is working under the Regional office and, therefore, circular dated 27.03.2010 will be applicable with respect to consideration of the claim of the writ petitioner. It is evident from circular dated 27.03.2010 that 15% of the vacancies in Class-III posts is to be filled up from amongst the Class-IV posts through appointment, i.e., by in-service departmental examination. In the circular, as under Clause 4(Ka)(i) the word “appointment” has been referred to fill up 15% of the vacancies of Class-III posts from amongst Class-IV cadre, the word “appointment” denotes that it is to be filled up through appointment. 9. The factual position is that the Limited Departmental Competitive Examination had been conducted in pursuance of the Government Circular dated 27.03.2010 in which the writ petitioner never participated, is not in dispute since the plea as has been taken by the State as has been recorded by the learned Single Judge at paragraph-8 thereof but no ground has been taken by the writ petitioner to that effect in the memorandum of appeal and, therefore, this Court comes to the conclusion about admission on the part of the writ petitioner that the Limited Departmental Competitive Examination had been conducted but the writ petitioner has not participated in the Limited Departmental Competitive Examination. The writ petitioner, however, claims consideration for promotion claiming it to be his fundamental right and to substantiate his argument, learned counsel appearing for the petitioner has relied upon the judgment rendered by Hon'ble Apex Court in Ajit Singh and Others (II) v. State of Punjab and Others [ (1999) 7 SCC 209 ] wherein the ratio has been laid down that the right to be considered for promotion is a fundamental right (see Para-22). There is no quarrel with the aforesaid position of law, as has been laid down in Ajit Singh and Others (II) v. State of Punjab and Others (Supra), but such plea can be allowed to be taken only if no opportunity with respect to consideration for promotion has been provided. There is no quarrel with the aforesaid position of law, as has been laid down in Ajit Singh and Others (II) v. State of Punjab and Others (Supra), but such plea can be allowed to be taken only if no opportunity with respect to consideration for promotion has been provided. In the case in hand, since the fact of conducting Limited Departmental Competitive Examination in pursuance to Government Circular dated 27.03.2010 is not in dispute, the writ petitioner although has been provided opportunity to appear in the Limited Departmental Competitive Examination, now it is not available to the writ petitioner to take the plea of depriving him from consideration for promotion from Class-IV to Class-III since he has not chosen to participate in the examination for consideration of his claim in pursuance to the Government Circular applicable for the purpose of granting promotion from Class-IV post to Class-III post. Learned counsel appearing for the petitioner has further relied upon the judgment rendered in Food Corporation of India and Others v. Parashotam Das Bansal and Others [ (2008) 5 SCC 100 ], wherein the Hon'ble Apex Court, dealing with a case wherein the opportunity of consideration for promotion for a period of 30 years since has not been provided, in that circumstances it has been observed therein that the channel of promotion is required to be created in order to avoid stagnation over the years as would appear from paragraph 13 thereof, which reads as hereunder:- “13. If there is no channel of promotion in respect of a particular group of officers resulting in stagnation over the years, the court although may not issue any direction as to in which manner a scheme should be formulated or by reason thereof interfere with the operation of existing channel of promotion to the officers working in different departments and officers of the Government but the jurisdiction to issue direction to make a scheme cannot be denied to a superior court of the country.” It is evident from the observation made in the aforesaid paragraph that the Hon'ble Apex Court has considered the fact about no channel of promotion in respect of a particular group of officers resulting in stagnation over the years, however, the Hon'ble Apex Court has referred in the said paragraph that it would not be appropriate to give any direction as to in which manner the scheme should be formulated and by reason thereof interfered with the operation of existing channel of promotion to the officers working in different departments and the jurisdiction to issue direction to make scheme cannot be denied to a superior court of the country. 10. It is the admitted fact in the present case that the Circular dated 27.03.2010 is there by which, in order to avoid stagnation, the promotional avenues have been created by earmarking 15% of the vacancies to be filled up from Class-IV to Class-III but by conducting Limited Departmental Competitive Examination and, as such, it is not the case of stagnation, rather, there is channel of promotional avenues, therefore, on the basis of the facts of the given case, the judgment rendered by Hon'ble Apex Court in Food Corporation of India and Others v. Parashotam Das Bansal and Others (Supra) is not applicable in this case. 11. Therefore, this Court is not hesitant in holding that the writ petitioner, on misconception, claims through the circular dated 16.09.1992, even though he is not an employee working under the Secretariat and Muffasil office rather he is working under the regional office. Therefore, the circular dated 27.03.2010 will be applicable and not the one dated 16.09.1992. 12. 11. Therefore, this Court is not hesitant in holding that the writ petitioner, on misconception, claims through the circular dated 16.09.1992, even though he is not an employee working under the Secretariat and Muffasil office rather he is working under the regional office. Therefore, the circular dated 27.03.2010 will be applicable and not the one dated 16.09.1992. 12. Further, learned counsel appearing for the petitioner, has agitated the point that the similarly situated employees working under the West Singhbhum district have been granted promotion but the same has seriously been objected since the plea has been taken in the affidavit on behalf of the State that the employees who have been granted promotion from Class-IV to Class-III post, were working under the offices attached to the Secretariat, associate offices of the Secretariat and Muffasil offices. It has further been stated that in the Education Department none of the employees has been granted promotion without passing the Limited Departmental Competitive Examination. The said plea having been taken by the State in the counter affidavit, having not been rebutted, the natural corollary would be that the statement made to that effect in the affidavit dated 28.06.2022 filed on behalf of the State will be treated to be admitted. Therefore, this Court is of the view that the writ petitioner has failed to make out a case of hostile discrimination as also has failed to make out a case for applicability of circular dated 16.09.1992 and, as such, this Court is of the view that the writ petitioner has failed to make out a ground for consideration of his case for promotion since he has not participated in the Limited Departmental Competitive Examination, as required to be participated by virtue of circular dated 27.03.2010. 13. This Court, having discussed the factual aspect and having scrutinized the order passed by the learned Single Judge, is of the considered opinion that the learned Single Judge has considered the fact about non-participation of the writ petitioner in the Limited Departmental Competitive Examination as also the writ petitioner not fulfilling the eligibility criteria, therefore, has declined to interfere with the impugned order, which suffers from no error. 14. Accordingly, the instant appeal fails and is dismissed.