WP(C) 3877/2009 BEFORE HON’BLE MR.JUSTICE T. NANDAKUMAR SINGH Heard Mr.S.Huda, learned counsel for the petitioner and also Ms VL Sinha, learne d GA appearing on behalf of respondent Nos.1 and 2 as well as Mr.S.P.Das, learne d counsel for respondent No.3. (2) It is admitted case of both the parties that the petitioner was working as Assistant Director of Employment in the District of Sonitpur, Tezpur and from there he had been transferred to Silchar on 27.02.2009 and he joined at Silchar on 06.03.2009. The next higher promotional post of Assistant Director o f Employment Exchange is Deputy Director of Employment Exchange. (3) The petitioner’s promotion to the next higher post of Deputy Dir ector was due on 12.02.2009. The Government of Assam also prepared provisional g radation list of Assistant Directors of Employment Exchange vide notification No .GLR.128/98/92 dated 16.09.2006. Copy of which is available at annexure-1 to the writ petition. As per the said gradation list, petitioner’s name appears at Sl. No.5. (4) It is further case of the petitioner that his case was not consi dered for further promotion to the post of Deputy Director, Employment Exchange and because of non-consideration of his promotion to the post of Deputy Director , petitioner retired on superannuation as Assistant Director on 30.09.2009. Henc e this writ petition for a direction to the respondents for consideration of his case for promotion to the post of Deputy Director notionally w.e.f. the date hi s juniors had been promoted to the post of Deputy Director or from the of substa ntive vacancy in the post of Deputy Director so as to enable the petitioner enjo y the benefit of notional promotion for calculating his quantum of pension. (5) Respondent No.1 had filed affidavit in opposition wherein respon dents are not denying that the petitioner’s promotion to the post of Deputy Dire ctor, Employment Exchange was due from 12.02.1999. In the affidavit in oppositio n, it is also stated that the Departmental Selection Committee recommended the n ame of four officers i.e. four Assistant Directors including the petitioner for promotion in order of their seniority to the post of Deputy Director. In the rec ommended list, name of the petitioner appear at Sl.No.3. As only two vacancies i n the post of Deputy Director were available at that time, two Assistant Directo rs, whose names are above the petitioner were promoted to the post of Deputy Dir ector; but petitioner could not be promoted even though his name was recommended and selected by the Selection Committee because of non availability of vacancy in the post of Deputy Director. In the affidavit in opposition filed by the resp ondents, it is clearly stated that one post of Deputy Director fall vacant on 01 .05.1999 due to superannuation of one officer and another post was also vacant o n 27.06.2009 due to expiry of one officer. As stated above, promotion of the pet itioner to the next higher post, i.e. Deputy Director, Employment Exchange, was due from 12.02.2009. (6) From the above fact, it is clear that two vacancies in the post of Deputy Director were available before the petitioner attained the age of supe rannuation, i.e. 30.09.2009. (7) It appears that the only explanation from the side of the respon dents for not promoting the petitioner before he attained the age of superannuat ion to the post of Deputy Director, Employment Exchange was that his ACR was not available. It is really surprising and shocking that because of non availabilit y of ACR, due to the lapse on the part of the officer concerned, responsible fo r keeping the ACR of the petitioner, case of the petitioner was not considered f or promotion to the next higher post of Deputy Director. (8) It is now well settled that the right to consider for promotion to the higher post is a fundamental right. This fundamental right of the petitio ner cannot be denied so easily by the respondents only on the lame excuse that h is ACR was not available for consideration for promotion to the next higher post . (9) Because of the lapse of the concerned officer, petitioner had re tired on superannuation as Assistant Director on 30.09.2009. Had the petitioner retired after due consideration of his promotion to the post of Deputy Director he would have enjoy higher pension. (10) In the above factual background, this writ petition is disposed by directing the respondents to consider his case for promotion to the next high er post of Deputy Director against one of the vacancies i.e. one vacancy on 01.0 5.2009 and other on 27.06.2009 in the post of Deputy Director, for giving notion al promotion. (11) It is made clear that the whole exercise should be completed wit hin a period of three months from the date of receipt of certified copy of this judgment and order, so that the petitioner can enjoy higher pension, if he is re commended by duly constituted Selection Committee. (12) Petitioner has to obtain a certified copy of this order and subm it the same to the respondents for compliance. (13) With the above observation and direction, writ petition is allowed.