By the Court.—Heard Sri D.K.S. Rathore, learned counsel for the petitioner and Sri Y.K. Yadav, learned Standing Counsel for the respondents.

2. The brief facts of the case are that the petitioner was appointed as a Research Assistant in U.P. Industries Department by order dated 3.11.1977 after his selection by the U.P. Public Service Commission. The petitioner’s services were regularised as a Manager (Handloom) by order dated 14.5.1980. The petitioner retired on 30.9.1996.

3. By means of the present writ petition, the petitioner claimed the notional promotion on the ground that he was found eligible to be promoted against the vacancy for the year 1994-95 and his name was find place in the selection list dated 7.7.1997 prepared by the Selection Committee of the U.P. Public Service Commission. The said selection list has been recommended to the State Government vide letter dated 7.7.1997. The copy of the said letter is Annexure-3 to the writ petition. When the claim of the petitioner has not been considered, the petitioner filed Writ Petition No. 34957 of 1998, which has been disposed of by order dated 25.3.2004, asking the respondent No. 1 to consider the representation of the petitioner. In pursuance thereof, the impugned order dated 9.8.2005, which Annexure-9 to the writ petition, has been passed refusing to give the benefit of the notional promotion.

4. Learned counsel for the petitioner submitted that the petitioner is entitled for the notional promotion under the Government order dated 25.6.1984, which provides that those employees who had retired or died subsequently and their names were found in the eligibility list, are entitled for the notional promotion from the date of vacancies. The petitioner also relied upon the Division Bench decision of this Court in Writ Petition No. 10823 of 1995 ‘Atar Singh Nagar v. State of U.P. and others’ decided on 31.7.1997, which has been decided following the another Division Bench decision in the case of ‘Dev Narain Dubey v. State of U.P. and others’ in Writ Petition No. 7547 of 1989 decided on 6.7.1995 and submitted that the facts of the case of the petitioner are similar to the facts in the case of Dev Narain Dubey and in the case of Atar Singh Nagar and, therefore, the petitioner is entitled for the notional promotion from the date of vacancies. He further submitted that subsequent Government order dated 23.8.1997, which is annexed as C.A.-1 to the counter-affidavit, is not applicable in the case of the petitioner, inasmuch as it is only applicable in the case of those employees who are outside the purview of the U.P. Public Service Commission. He further submitted that by this Government order, the earlier Government order dated 25.6.1984 has not been cancelled, which is applicable to all the employees.

5. Sri Yadav, learned Standing Counsel for the respondents submitted that as per Government order dated 23.8.1997, there was no compulsion to give the notional promotion as provided in clause (3) of the said Government order. He further submitted that since petitioner retired before the selection list has been placed before the Departmental Promotion Committee, in short DPC, therefore, the petitioner is not entitled for the notional promotion and his claim has been rightly denied. He further submitted that the Division Bench decision of this Court relied upon by the petitioner is not applicable in the present case.

6. We have considered the rival submissions of the parties and perused the records.

7. The facts are not in dispute that the petitioner has been considered by the Selection Committee of the U.P. Public Service Commission and has been found eligible against the vacancies for the year 1994-95. The name of the petitioner has been recommended for notional promotion vide letter dated 7.7.1997 to the State Government. The Government order dated 25.6.1984 deals with a situation where the employee is retired or died and he is found eligible by the Selection Committee, it, cont