By the Court.—This petition has been filed for quashing the judgment and order dated 29.6.1992 passed by U.P. Public Services Tribunal, Lucknow.

2. In the claim petition the private respondent Nos. 2 to 9 had sought the quashing of the promotional orders of certain persons as Assistant Project Engineers and they had also sought their promotion to the said post. The Tribunal by the impugned judgment and order ordered that the applicants are entitled to be promoted to the post of Assistant Project Engineers (Civil) from the date, opposite-party Nos. 2 to 5 to the claim petition were promoted with all consequential benefits.

3. Sri U.S. Awasthi, learned counsel for the petitioner has very fairly stated that during the pendency of the writ petition, the applicants who have been arrayed as respondent Nos. 2 to 9 in the present petition were granted promotion by the Department during the pendency of this petition and, therefore, the only dispute that arises for consideration in the present petition is about that portion of the judgment of the Tribunal which promotes them from a back date i.e. the date when the opposite-party Nos. 2 to 5 to the claim petition were promoted.

4. We have heard the learned counsel for the petitioner and Sri S.K. Kakkar, learned counsel appearing for the private respondents.

5. Two issues arise for consideration in this petition. The first issue is whether the Tribunal could have passed an order granting promotion to the post of Assistant Project Engineers instead of passing an order for consideration of their claim for promotion to the post of Assistant Engineers. The second issue that arises for our consideration is whether the applicants could have been promoted without there being any evidence before the Tribunal that vacancies on the promotional posts existed.

6. In our opinion, the directions issued by the Tribunal for promotion of the applicants to the post of Assistant Project Engineers is against the well settled principles enunciated by the Courts from time to time as the Courts can at best issue a direction to the authorities concerned to consider the cases for promotion but a direction promoting the candidates to the higher post cannot be issued as promotion to a particular post depends upon a number of factors to be taken into consideration by the authorities. In this view of the matter, the direction issued by the Tribunal for promotion to the post of Assistant Project Engineers cannot be sustained.

7. However, in view of the fact that these persons have subsequently been promoted by the competent authority after taking into consideration the necessary factors, we do not propose to quash the appointments of the applicants made on the promotional posts.

8. The second issue is regarding promotion to higher post even in the absence of vacancies. The Courts have repeatedly held that promotions can be granted against the existing vacancies. In the present case, the Tribunal has not recorded any finding to the effect that the vacancies existed on the higher posts. In fact, in the claim petition one of the reliefs claimed by the applicants was for quashing the appointments of opposite-party Nos. 2 to 5 so that the applicants could be promoted against those posts. The Tribunal, however, has observed that since the applicants were being promoted, it was not necessary to quash the appointments of those who had been promoted. Such an approach cannot be countenanced as candidates cannot be promoted against non-existent vacancies. However, as pointed by Sri U.S. Awasthi, learned counsel for the petitioner that the applicants have subsequently been promoted when the vacancies came into existence after considering the service records, we deem it proper to order that the promotion of the applicants-respondent Nos. 2 to 9 shall be effective from the date they were promoted and not with retrospective effect from the date opposite-party Nos. 2 to 5 were promoted on the post of Assistant Project Engineer