By the Court.—The special appeal has arisen from a judgement and order of the learned Single Judge dated 8 October 2013 by which a writ petition filed by the respondents was allowed and a direction has been issued to the effect that the respondents would be entitled to at least notional promotion on the post of Commandant from the date on which other persons in a promotion order dated 13 December 2005 had been given promotion.

2. For convenience of reference parties shall be referred to by the array of parties in the original Court proceedings.

3. The two petitioners were promoted as Platoon Commanders on 29 June 1991 and 9 June 1994 respectively. On 14 June 2001, they were promoted as Inspectors, Home Guard Cadre and retired from service on 30 November 2003 and 31 December 2004. A meeting of the Departmental Promotion Committee (DPC) for promotion to the District Commandant Cadre was held for 2003-04 and 2004-05 under the U.P. Public Service Commission. The DPC for 2003-04 was held on 24 October 2005. The petitioners were found eligible for promotion against the vacancies for 2003-04. On 13 December 2005, the Principal Secretary in the Home Department issued promotional orders for thirteen persons. As against the names of the first and second petitioners, the promotional order indicated that they had retired on 30 November 2003 and 31 December 2004 respectively. The promotional orders were to take effect from the date on which the employees assumed charge of the promotional post. The eligibility list was for 2003-04. On 14 December 2005, promotional orders were issued by the Home Guards Secretariat in which names of the two petitioners were not included since they had retired prior to that date. The petitioners moved a representation which was disposed of on 22 April 2008. The order dated 22 April 2008 relied on a Government Order dated 23 August 1997, according to which, in the case of an employee who had retired, notional promotion would be granted with effect from the date on which a junior had been promoted. In the present case, no junior had been promoted prior to the date of retirement. Hence the representation was rejected.

4. That led to the filing of a writ petition before the learned Single Judge for challenging the order dated 22 August 2008 and for a mandamus to the authorities to compute pensionary dues of the petitioners on the post of District Commandant (Home Guards) w.e.f. 13 December 2005. The writ petition has been allowed by the learned Single Judge. The learned Single Judge has held that since the petitioners were within the eligibility criterion of promotion to the post of Commandant and their names were considered and found fit by the DPC, having been mentioned in the promotional order dated 13 December 2005, they were entitled to at least notional promotion on the post of Commandant from the date when other persons in the order dated 13 December 2005 had been given promotion. Aggrieved, the State is in special appeal.

5. The issue which falls for consideration before the Court turns on a Government Order dated 23 August 1997. The Government Order states that there is a provision for preparing an eligibility list for each year. Accordingly, the name of an employee would be included in the eligibility list for that year in which the employee had been found entitled, even if in the meantime, the employee had died or attained the age of superannuation. However, the Government Order states that where the question of notional promotion is concerned, there is no legal compulsion to grant promotion with effect from the date on which the vacancy has arisen. Notional promotion would be granted in the event of a junior being promoted, upon the employee being found fit by the DPC.

6. The law on the subject, is well-settled.

7. In Union of India v. K.K. Vadera, 1989 Supp (2) SCC 625, the Supreme Court held that after a post falls vacant for any reason whatsoever, a promotion to that post should be from the