ORDER : RAKESH MOHAN PANDEY, J. 1. The present writ petition has been preferred by the petitioners with the following prayer(s):- “10.1 That, the Hon’ble Court may kindly be pleased to direct the respondents to immediately start the process of promotion for the 40% vacant posts of Assistant Engineers of the respondent Generation Company, considering the candidature of the petitioners. 10.2 That, this Hon'ble Court may kindly be pleaded to direct the respondent authorities to grant promotion to the petitioners on being successful through the process of promotion from the date they became eligible for promotion and posts fall vacant, with all consequential benefits. 10.3 That, any other relief/order which may deem fit and just in the facts and circumstances of the case including award of the costs of the petition may give given. 2. Learned counsel appearing for the petitioners submitted that the petitioners were appointed to the post of Junior Engineer (Generation Wing) by the respondent/CG State Power Holding Company Limited between the period from July, 2007 to September, 2007, thereafter, their services were regularized after completion of training and probation period. He further submitted that few of the petitioners belonged to the Other Backward Class whereas some of the petitioners belonged to the unreserved category. He also submitted that as per standing Circulars and Rules, the total available vacant posts of Assistant Engineer shall be filled 50% by direct recruitment, 40% by promotion of Junior Engineers and 10% by limited departmental examination for Junior Engineers, who possess requisite qualification. He further contended that though several posts of Assistant Engineers in the department were lying vacant, no steps were taken for the promotion of the petitioners to those posts. It is also contended that the criteria for promotion to the post of Assistant Engineer was 5 years of service on the post of Junior Engineer based on seniority-cum-merit. He further argued that in the year 2014, the total sanctioned posts of Assistant Engineer was 614 and 40% of that figure would come to around 246 posts to fill up the vacancies through departmental promotion. He also argued that though there were vacant posts for Assistant Engineers, the claim of the petitioners for promotion to the posts of Assistant Engineer was not considered by respondents No. 2 to 5/Electricity Department for the reasons best known to them. He also argued that though there were vacant posts for Assistant Engineers, the claim of the petitioners for promotion to the posts of Assistant Engineer was not considered by respondents No. 2 to 5/Electricity Department for the reasons best known to them. He further stated that the Department appointed an Assistant Engineer by direct recruitment, but at the same time, no steps were taken for the promotion of the petitioners. He also stated that some of the Junior Engineers were promoted in the year 2014 but the names of the petitioners were not considered for promotion. He submitted that the petitioners were promoted to the post of Assistant Engineer in the year 2018 whereas they were entitled to get promoted in the year 2014 itself, therefore, a direction may be issued to the respondent authorities to reckon their seniority from the year 2014 when the petitioners became eligible for promotion. 3. Per contra, the learned counsel appearing for respondents No. 2 to 5 submitted that in the year 2014, the total sanctioned posts of Assistant Engineers was 614. She further submitted that 40% of total sanctioned posts were reserved for departmental promotion, which comes to 246. She also submitted that for the unreserved category, sanctioned posts were 138 whereas working strength was 183 and, thus, 45 Junior Engineers were in excess. She contended that 16 Junior Engineers belonging to the SC/ST category were promoted, but there was no promotion for the unreserved category. She further contended that in the year 2015, Assistant Engineers belonging to the General category were in excess; therefore, no steps were taken for the promotion of the petitioners. It is also contended that in the year 2018, 59 Assistant Engineers were promoted to the posts of Executive Engineers and, therefore, a Departmental Promotion Committee was held and a total of 28 Junior Engineers were promoted to the post of Assistant Engineer including the petitioners. She argued that when vacant posts of Assistant Engineers were available, the immediate claim of the petitioners was considered and an appropriate order was passed, therefore, this petition is misconceived and liable to be dismissed. 4. In support of her submissions, she placed reliance upon the judgment rendered by the High Court of Meghalaya at Shillong in the matter of Shri Andrew Shabong & others Vs. 4. In support of her submissions, she placed reliance upon the judgment rendered by the High Court of Meghalaya at Shillong in the matter of Shri Andrew Shabong & others Vs. State of Meghalaya & others reported in 2023 LiveLaw (Meg) 1, wherein it has been held that promotion to a higher post is not a case of functional promotion, but it involves a process of selection and recommendation by a duly constituted DPC. The mere existence of a vacancy will not create a vested right for an eligible employee to claim for appointment on promotion to the said post, especially when the same has to be finalized through a selection process. Para 10, which is relevant, is reproduced below:- “10. Promotion to a higher post in the instant case is not a case of functional promotion, but as can be seen involves a process of selection and recommendation by a duly constituted DPC. A mere existence of a vacancy therefore, will not create a vested right for an eligible employee to claim for appointment on promotion to the said post, especially when the same has to be finalized through a selection process. A case that is relevant and has a bearing on the point in issue wherein leading cases have been digested is the case of Union of India & Anr. Vs. K.L. Taneja & Anr., and othe similar cases [WP(C) No. 8102/2012] decided by he Delhi High Court on 12.04.2023. In this judgment which has great persuasive value, after analyzing many cases on this point, at Para-21, it has been held as follows :- “21. The cornucopia of case law above noted brings out the position:- (i) Service Jurisprudence does not recognize retrospective promotion i.e. a promotion from a back date. (ii) If there exists a rule authorizing the Executive to accord promotion from a retrospective date, a decision to grant promotion from a retrospective date would be valid because of a power existing to do so. (ii) If there exists a rule authorizing the Executive to accord promotion from a retrospective date, a decision to grant promotion from a retrospective date would be valid because of a power existing to do so. (iii) Since mala fides taints any exercise of power or an act done, requiring the person wronged to be placed in the position the person would find himself but for the mala fide and tainted exercise of power or the act, promotion from a retrospective date can be granted if delay in promotion is found attributable to a mala fide act i.e. deliberately delaying holding DPC, depriving eligible candidates the right to be promoted causing prejudice. (iv) If due to administrative reasons DPC cannot be held in a year and there is no taint of malice, no retrospective promotion can be made.” 5. Mr. Pranjal Shukla, the learned counsel for the State has extended his support to the contention made by Ms. Nair, the learned counsel appearing for respondents No. 2 to 5. 6. I have heard learned counsel appearing for the parties and perused the material placed on the record. 7. The petitioners were appointed to the post of Junior Engineer in the year 2007. Some of the petitioners belonged to the General category whereas some belonged to the other backward classes. The criteria for promotion to the post of Assistant Engineer were 5 years of service in the post of Junior Engineer and, thus, according to the counsel for the petitioners, the petitioners became eligible for promotion in the year 2013 after completion of five years. 8. From a perusal of the chart placed on record by the counsel for respondents No. 2 to 5, it is apparent that there were 614 posts of Assistant Engineers lying vacant in the year 2014. According to Rules & Circulars, 40% of posts would have been filled up by promotion. From a perusal of the chart, it is also evident that in the unreserved category, 45 Assistant Engineers were in excess, therefore, Junior Engineers belonging to the General category and other backward classes were not promoted to the post of Assistant Engineer, but at the same time, looking to the vacant posts, Junior Engineers belonging to Scheduled Castes and Scheduled Tribes category were promoted. Likewise, in the year 2015, there were no vacant posts for unreserved category and other backward class, therefore, the claim of the petitioners could not be considered. Subsequently, in the year 2018, 59 Assistant Engineers were promoted to the posts of Executive Engineers and due to this, vacancies arose and the same were filled by promoting Junior Engineers to the post of Assistant Engineers. The petitioners and other eligible candidates belonging to the General Category and other backward classes were promoted to the post of Assistant Engineer and in this regard, the order dated 13.12.2018 has been placed on record. 9. If the rule says that 50% of posts are to be filled by direct recruitment, then those posts cannot be filled by promotion. Likewise, if posts have to be filled up by promotion, those posts cannot be filled by direct recruitment. In the present case, only 40% of posts were reserved to be filled by promotion. In the year 2014 -2015, 45 Assistant Engineers were in surplus/excess, therefore, no steps were taken or no DPC was convened to fill up the posts of Assistant Engineers from the unreserved category or other backward class. In the year 2018, 59 Assistant Engineers were promoted to the post of Executive Engineer and there were 28 vacant posts available, consequently, a decision was taken; DPC was convened and 28 Junior Engineers including the petitioners were promoted to the post of Assistant Engineers. 10. The High Court of Meghalaya in the matter of Shri Andrew Shabong & others (supra) has rightly held that promotion to higher posts is not a case of functional promotion, but it involves a process of selection and recommendation of duly constituted Departmental Promotion Committee. 11. In the instant case, pertaining to the petitioners, no DPC was convened and the names of the petitioners were not recommended for promotion in the absence of vacant posts. Further, the mere existence of a vacancy will not create a vested right for eligible employees to claim for appointment or promotion on the said posts. 12. Taking into consideration the aforesaid facts and law, in the opinion of this Court, no case is made out for interference in the instant petition. 13. Accordingly, the writ petition fails and is hereby dismissed. No order as to cost(s).