The refusal to promote an employee does not amount to a reduction in rank if the promotion is based on selection and the employee is considered unfit for the post.

( 1 ) THIS is a special appeal against an order of Jagdish Sahai, J. , rejecting the appellants petition under Article 226 of the Constitution. The facts which, led to the filing of that petition, as alleged by the petitioner in his affidavit, were these:

( 2 ) THE petitioner was appointed a clerk in the office of the Director of Education, Uttar Pradesh, in 1936, In 1948 he was sent on deputation to the Secretariat in a superior scale, but was reverted in due course. In 1953 the Director of Education selected several persons for the posts of incharge and Assistant In-charge. The petitioner was considered for this post and was called for interview, but he was not selected. He made enquiries and was informed that he had not been selected because the departmental selection committee had not considered him fit for the post. In 1957 another vacancy occurred and the petitioner pressed his claim, but his representation or application was rejected. Aggrieved by the decision of the Government he filed a petition in this Court under Article 226 of the Constitution. The learned Judge rejected it on the ground that it was misconceived. He observed that the posts of Incharge and Assistant Incharge are filled by selection and the basis of selection is seniority-cum-fitness. The petitioner contended before the learned Judge that the refusal to select him for these posts amounted to a reduction of his rank within the meaning of Article 311 of the Constitution. The learned Judge rejected this argument. The appellant has now filed a special appeal against the decision of the learned Judge.

( 3 ) WE are of the opinion that there is not the slightest force or merit in this case. Mr. Singh, who holds the brief for Mr. S. C. Khare made a gallant attempt to support the grounds of appeal, but he found it impossible to support what is manifestly insupportable. As regards the ground that the refusal to promote the appellant has resulted in a reduction of his rank, we are constrained to observe, borrowing a remark of the Privy Council in an old case, that it would be waste of time for this Court even to consider such a ground, and Mr. Singh wisely refrained from pressing it seriaply. He, however, contended that the Government should have followed the principles laid down in their own memorandum dated 27th December, 11956, which is Annexure a to the affidavit supporting the petition. This was a circular issued by Mr. A. N. Jha, Chief Secretary to the government of Uttar Pradesh to the various Heads of Departments in the State stating that the governor had decided that promotions should be made on the basis of three principles which were specified in the Circular. In the first class of cases, promo-lions should be made on the basis of seniority subject to the rejection of the unfit, this principle would apply to promotion from one lower grade of post to the higher grade of post within the same service or from one subordinate service to another. In the second class of cases, selection should be based entirely on merit. This principle would apply to promotion from certain subordinate services to State services. In the third class of cases, it was recommended that promotion could be made on the basis of exceptional brilliance in preference to seniority. I do not see bow the principles laid down in this circular help the appellants case at all. In its letter dated 23rd July, 1958, in reply to his representation to the, Government protesting against his claims for promotion having been ignored, he was informed that he had not been selected because the departmental selection committee had not considered him fit. Thus, even under the circular, the first principle would apply to the appellants case for though senior, he was considered unfit for selection.

( 4 ) THERE is another and more serious objection to the petition filed by the appellant. He asked for a writ of mandamus commanding the State to decide the petitioners claim whatever it may be -accor