ORDER :

The instant petition has been filed for the grant of following reliefs:

(i) That in view of the above mentioned facts and circumstances, the impugned Notification of promotion dated 27.8.2020 may kindly be quashed and set aside.

(ii) That the respondent department may kindly be directed to promote the petitioner as Superintendent Grade-I being senior most, with all consequential benefits.”

As per the petitioner, he was appointed by the respondent-department as Clerk in the year, 1988 and thereafter in the year 2004, he was promoted as Junior Assistant and subsequently to the post of Senior Assistant. In the final seniority list of Senior Assistant, petitioner was placed at Sr. No.1, thus, he was entitled to be considered for promotion to the post of Superintendent Grade-I. However, impugned Notification dated 27.8.2020, the respondent-department issued order of promotion of respondent No.3 and promoted him as Superintendent Grade-I, despite the fact that he was junior to him. As per the averments made in the petition, the respondent-department has ignored the Office Memorandum dated 27.2.2016 and 21.6.2016, while holding Departmental Promotion Committee (hereinafter referred to as ‘DPC’) for selection post, wherein, it has been suggested that the post of Superintendent Grade-I is selection post and the respondent-department while holding DPC has to made selection on the basis of seniority. However, in the present case, the respondent-department has totally ignored the seniority of the petitioner, as well as his ACR(s) performance, which were Very Good.

2. In the reply filed by the respondents-State, it has been averred that the instant petition is not maintainable, as the petitioner has filed a representation against the entries made in his ACR for the year 2019-20 before the Financial Commissioner (Revenue), which is stated to be pending. It has been further averred that the petitioner has not come to the Court with clean hands and suppressed the material facts. It is averred that on 30.6.2020, post of Superintendent Grade-I fell vacant, consequent upon the superannuation of the then Superintendent Grade-I. Consequently, particulars of both the petitioner and respondent No.3 were forwarded to the office of respondent No.1, who was the appointing authority in respect of the post in question. Thereafter, DPC was held on 28.7.2020 under the Chairmanship of Principal Secretary (Revenue) and respondent No.3 was promoted as Superintendent Grade-I, as the performance of the petitioner in the ACRs for the year 2017-18 and 2019- 20 was average. It has been further averred in the reply that the petitioner on many occasions shown misconduct in the discharge of his official duties and was found in the state of intoxication during office hours.

3. In reply filed by respondent No.3, it has been averred that in the instant case, the post of Senior Assistant is a feeder post of Superintendent Grade-I and criteria to follow for promotion is merit-cum-seniority. The criteria for making promotion to different categories of post is as under :

i. Seniority/Rejection to unfitness.

ii. Promotion on the basis of seniority-cum-merit.

iii. Merit-cum-Seniority.

In the present case, the promotion which is to the Class-I post, the criteria for seniority-cum-merit has been held to be a valid criteria, therefore, the procedure adopted by the DPC to the merit of the candidate(s) is a valid and legal criteria. The petitioner does not have a vested right of promotion, but has only the right of consideration, which has not been infringed.

4. Mr. Kul Bhushan Khajuria, learned counsel for the petitioner has argued that the petitioner was senior to the private respondent and he should have been promoted to the post of Superintendent Grade-I before the private respondent. He has argued that DPC has considered the ACRs, which were not communicated to him and was made by one Officer due to the malafide intention against him. He further argued that those ACRs were not