The right to be considered for promotion is a fundamental right, but there is no absolute right to promotion itself, which becomes effective only upon assumption of duties.

JUDGMENT :

Satyen Vaidya, J.

1. By way of instant petition, the petitioner has prayed for following substantive reliefs:-

“i. Issue a writ in the nature of certiorari, mandamus or other appropriate writ or direction quashing Office Order dated 1^st May, 2012, (Annexure P-8).

ii. Issue a writ of mandamus directing the respondent department and respondent No.3 to convene review DPC and consider the case of the petitioner for promotion of the post of Labour Officer from the due date i.e. Sept., 2002 with all consequential benefits or in alternative direct the respondent department to promote the petitioner as Labour Officer w.e.f. Sep., 2002.”

2. The case as pleaded by the petitioner is that he was appointed as Labour Inspector on 08.08.1990. On completion of five years of service as Labour Inspector, the petitioner became eligible for being considered for promotion to the post of Labour Officer. The post of Labour Officer fell vacant in the month of September, 2002. The petitioner being senior most Labour Inspector was though due for consideration for promotion to the post of Labour Officer, but, such consideration was stalled as one Shri Rajesh Kumar preferred O.A. No. 3289 of 2002, titled as Rajesh Kumar vs. State of H.P. & Ors., before the H.P. State Administrative Tribunal asserting his claim to be considered for promotion to the post of Labour Officer on the premise that the post as per the applicable roster was to be offered to the candidate from the Scheduled Caste category and the said Shri Rajesh Kumar being a scheduled caste candidate was entitled to be considered. The petitioner in the instant petition was also impleaded as respondent in the said petition. By way of interim order passed by the erstwhile H.P. State Administrative Tribunal, the process for further promotion was halted. Finally, the O.A. No.3289 of 2002 was dismissed vide order dated 30^th September, 2004. Thereafter, DPC was convened and on its recommendation, the petitioner was promoted as Labour Officer in the month of March, 2005.

3. The grievance raised by the petitioner is that he was due for consideration for promotion to the post of Labour Officer in September, 2002 and since the same was delayed till March, 2005 without any fault on his part, the petitioner was entitled to be promoted as Labour Officer w.e.f.September, 2002 with all consequential benefits.

4. Petitioner preferred representations dated 15.01.2011 and 16.04.2012, however, the said representations were rejected by the respondents vide communication dated 01.05.2012 (Annexure P-8). Hence this petition.

5. The respondents have contested the claim of the petitioner on the ground that the promotion process for the post of Labour Officer was not initiated due to pendency of O.A. 3289 of 2002 before the erstwhile H.P. State Administrative Tribunal. It was only after the dismissal of the said O.A. that the DPC was convened and the petitioner was promoted as Labour Officer w.e.f. March, 2005. It has further been submitted that the delay had not been caused by the respondents intentionally and was only for the bonafide reason of pendency of O.A. No. 3289 of 2002. As per the respondents, the petitioner was not entitled for promotion from the retrospective date as promotional and financial benefits cannot be granted without actually performing the duties of the post concerned.

6. As regards the rejection of the representations of the petitioner, the grounds stated in the rejection letter (Annexure P-8) have been sought to be justified.

7. In rejoinder filed by the petitioner, he has placed reliance on the opinion rendered by the law department on the representations of the petitioner to assert the validity of his claim.

8. I have heard learned counsel for the parties and have also gone through the entire record carefully.

9. Learned counsel for the petitioner has contended that the petitioner could not be made to suffer for no fault of his. He has further contended that the promotion of petitioner was dela