The discretion of the employer in filling vacancies, the right to be considered for promotion, and the privilege of notional promotion.

JUDGMENT

Raghvendra Singh Chauhan, C.J. - Aggrieved by the order dated 16.12.2020, passed by the Commissioner, Rural Development Department, Uttarakhand, Pauri, whereby the learned Commissioner has rejected the prayer of the petitioner for granting him notional promotion on the post of Chief Administrative Officer, the petitioner has approached this Court.

2. Briefly stated, the facts of the case are that on 05.02.1985, the petitioner was appointed as a Junior Clerk at the Employees Training Centre, Hawalbag, Almora. Subsequently, on 08.11.1993, he was promoted to the post of Senior Clerk, and was transferred to Block Salt, DistrictAlmora. On 03.11.2010, he was promoted to the post of Chief Assistant; he was transferred in Block-Bhikyasain, District-Almora. Thereafter, on 15.05.2013, he was promoted to the post of Administrative Officer. He continued to work in Block-Bhikyasain, District Almora. On 11.05.2018, he was further promoted to the post of Senior Administrative Officer; he was transferred to Block Pokhari, District Chamoli. On 25.06.2019, he was transferred from District-Chamoli to District Almora.

3. Since the petitioner had already completed one year's period of working as a Senior Administrative Officer, on 27.07.2019, he sent a representation to the Commissioner, Rural Development Department, respondent no. 2. In the representation, he clearly pointed out that he is due to retire on 31.12.2019. Since he is eligible for being promoted to the post of Chief Administrative Officer, his candidacy for the said post should be considered by the Department. In case, he were to be promoted on the said post, he would be entitled to receive the pay-scale of the promotional post. Therefore, even the pension amount would increase. However, for almost six months, respondent no. 2 did not react to the said representation. Meanwhile, on 31.12.2019, the petitioner superannuated from the post of Senior Administrative Officer.

4. Eleven months later, the petitioner submitted a detailed representation both before the Secretary, Rural Development Department, the respondent no. 1, and before the Commissioner, Rural Development Department, the respondent no.2. In the said representation, he clearly pointed out that he was eligible to be promoted to the post of Chief Administrative Officer. However, due to the laxity of the Department, he was not promoted to the said post. Since the Department had notionally promoted other colleagues of his, by order dated 28.02.2017, the petitioner should also be notionally promoted to the said post. But, by the impugned order dated 16.12.2020, the respondent no. 2 has rejected the representation dated 25.11.2020.

5. Not dejected by the rejection of his representation dated 16.12.2020, the petitioner again submitted another representation before the respondent no. 2, praying therein that the decision dated 16.12.2020 should be reviewed. However, by orders dated 25.01.2021 and 03.02.2021, the Additional Commissioner, Rural Development Department, the respondent no. 3, informed the respondent no. 2, and the petitioner that the petitioner's case was already rejected by the impugned order dated 16.12.2020. Hence, there is no question of reviewing the said decision. Thus, the present petition before this Court.

6. Mr. M.S. Bhandari, the learned counsel for the petitioner, has raised the following contentions:-

Firstly, the petitioner had a right of consideration for being promoted to the post of Chief Administrative Officer. But, due to the laxity on the part of the Department, his case was never considered. Therefore, the petitioner cannot be made to suffer for the fault of the Department.

Secondly, the petitioner was already eligible for the promotion. Therefore, his having acquired eligibility, his case should be considered immediately by the Department. But the Department failed to carry out its duty.

Thirdly, similarly situated persons were granted notional promotion. However, the petitioner has not been given t