JUDGMENT :

N.S.SANJAY GOWDA, J.

1. The Respondents Nos.1 to 4 herein were appointed in 1978 while the Respondent No 5 was appointed in 1980, as Medical Officers (Class-III) by the Gujarat Panchayat Services Selection Board.

2. It was their case that their only promotional post had been clearly indicated in the Gujarat Medical Service Class II Recruitment Rules 1977 at the time of their recruitment as Class-III Medical Officers and that they would be entitled to be promoted to these Class-II posts on rendering meritorious service of 10 years, which was, in fact, reduced to 5 years.

3. It was their case that despite their completion of 5 years as required under the Rules, their cases were not considered for promotion and on the other hand, the State, taking advantage of the fact that no ratio was prescribed between direct recruits and for promotion for these Class II posts of Medical Officers, proceeded to recruit 400 Allopathic doctors during the period from 1983 to 1993 and thereby deprived them of promotions.

4. The respondents approached the Gujarat Services Tribunal with the grievance that their case for promotion was required to be considered on completion of 5 years of service. However, the Tribunal rejected their appeal on the ground that it did not possess the jurisdiction. The Tribunal, however, observed that the department should look into the grievance of the respondents.

5. The respondents, thereafter, submitted a representation to the Government, which was to no avail.

6. Consequently, the respondents approached this Court by filing the writ petition seeking for a declaration that the omission of the State to promote them on completion of 5 years of service was illegal and for issuance of a direction to the State to give them a deemed date of promotion and grant all consequential benefits.

7. The learned Single Judge, on consideration of the matter, has granted the aforementioned prayers sought for by the original petitioners on the reasoning that though the respondents had no right for a promotion, in law, they had a right to be considered for promotion on them becoming eligible. The learned Single Judge took notice of the fact that 400 persons were recruited directly during the period from 1983 to 1993, thereby indicating that there were clear vacancies in the promotional posts of Medical Officer (Class-II) and therefore, the State Government had to consider them to the said promotional posts and ought to have promoted them on their completion of 5 years. The learned Single Judge also directed the extension of the said benefits with all consequential benefits to the respondents herein.

8. Being aggrieved by this order, the State is in the appeal.

9. Learned Assistant Government Pleader Ms. Vaishnavi Verma appearing on behalf of the Appellant- State contended that the learned Single Judge could not have granted the deemed date of promotion since it was nobody’s case that any person junior to the respondents had been promoted. She contended that it was the discretion of the State Government to grant promotions and no employee could seek for promotion, as a matter of right. She submitted that the view of the learned Single Judge that promotion should be granted since there were clear vacancies cannot also be accepted in the light of the aforementioned legal principle.

10. She also submitted that the respondents were, in fact, promoted in 1994 and they could not therefore be aggrieved on the ground that there was no promotional avenue for them at all. She also sought to put forth an argument that it was just not a question of 5 years' experience, but there was also a requirement of the petitioners possessing a MBBS degree in order to be a Medical Officer Class II officer. It is argued that since the respondents were only Ayurvedic doctors, they did not possess the requisite medical educational qualifications for being promoted as Class II officers.

11. Learned AGP has filed the written submissions and also placed reliance on a j