( 1 ) RULE. Mr. Mukul Sinha, learned Counsel appearing for respondent No. 1 waives service of Rule and Mr. Prabhakar upadyay, learned Counsel appearing for respondent No. 2 waives service of Rule. With the consent of the parties, the matter is taken up for final hearing today.

( 2 ) THE short facts of the case are that by the labour and Employment Department, a Departmental promotion Committee was constituted for promotion from class-III to Class-II and Class-IV to Class-III employees. The Committee consists of President of the industrial Court of Gujarat, Senior Member of the industrial Court of Gujarat and the Chief Judge of the labour Court, Ahmedabad. As per the petitioner, the meeting of the Committee was held on 23rd October, 2001 to consider the case of promotion from the post of cadre of clerk of the Court and as per the petitioner, the eligible persons were interviewed keeping in view the provisions of Rule 11 of the Gujarat Civil Services (Classification and Recruitment) General Rules, 1967 (hereinafter referred to as "the Rules" ). It appears that respondent Nos. 1 and 2 appeared at the interview and respondent No. 2 was promoted to the post of superintendent, Labour Court from the cadre of Clerk and as per the petitioner, respondent No. 2 had secured more marks and, therefore, the promotion was given. It is the case of the petitioner that the procedure followed by the committee was that each member of the Committee interviewed the candidates, who were appearing in the interview, and ten marks were allowed to every member and on the basis of total marks secured by the candidate concerned, the promotions were given. It is the further case of the petitioner that the proceedings of the committee were common for filling up of four posts. It appears that so far as candidate Nos. 1, 2, and 3, namely; mr. A. M. Meer, Mr. D. J. Zala, Mr. M. I. Kapadia are concerned, there was no challenge, but for the promotion of mr. Mirza, respondent no. 2 herein, the challenge was made by respondent No. 1 by preferring appeal before Gujarat civil Services Tribunal, being Appeal No. 380/2001. It appears that the Tribunal found that the Departmental promotion Committee was supposed to consider the annual confidential reports of the eligible Government servants in assessing their merit and there is nothing on record to show that such an exercise was made by the Committee and the Tribunal further found that the Committee seems to have based its decision on the result of the oral interviews only, even though there is no provision to take oral interviews. Ultimately, the Tribunal also found that though four promotions were given under the impugned order, the appointment of respondent No. 2 therein by the promotion, superseding the appellant, who is respondent No. 1 herein, deserves to be quashed and set aside and the order of appointment so far as it related to respondent No. 2 herein as the Superintendent by promotion is quashed and it was further observed that respondent No. 1 therein, who is petitioner herein, will be at liberty to fill up the posts keeping in view the observations made in the judgement of the Tribunal. The said decision of the Tribunal dated 28th October, 2002 is under challenge in this petition.

( 3 ) THE learned Counsel appearing for the petitioner, mr. J. B. Pardiwala mainly submitted that the finding of the tribunal that the confidential reports are not considered is contrary to the record in as much as the Committee, before whom the matter was placed, had considered the confidential reports. He also submitted that as such there are no sub-rules for providing interviews, but, he submitted that with a view to assess the merits of the candidates concerned, the Promotion Committee was within its power to hold the interview. Mr. Pardiwala also submitted that as such respondent No. 1 has acquiescence his rights by participation at the interview for the process of promotion, where he had lost or having been no