WP(C) 221/2009 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA. . JUDGMENT AND ORDER (ORAL) By means of this writ petition, the petitioner has prayed for a direction to the respondents to promote him to the post of Senior Scientific Officer w.e.f. 13.1 1.1991, the date on which, the Respondent No.4 was so promoted to the said post. Admittedly, the petitioner is senior to the said respondent. However, the petit ioner has been promoted to the post of Senior Scientific Officer w.e.f. 5.6.1992 . When the petitioner agitated his grievance for antedating his promotion, he w as intimated that in absence of any vacancy in the particular division i.e. Biol ogy, in which the petitioner had been working, he could not be promoted. It will be pertinent to mention here that the Respondent No.4 while promoted to the pos t of Senior Scientific Officer, was working in the Physics division. 2. It has been held by this Court in its judgment and order dated 27.9.1996 passed in the writ petition being Civil Rule No.3022/1993 (Bijoy Baruah v. Stat e of Assam & Ors) that the particular provision relating to division-wise-promot ion is bad in law. Accordingly, direction was issued for treating the incumbent s in different divisions at par in the matter of promotion. 3. Apart from the above, Mr. Borah, learned counsel for the petitioner has drawn my attention that the stand of the respondents in their Annexure-29 order dated 20.12.2008 that the petitioner could not be promoted for want of vacancy is also not correct. As per the Annexure-6 letter dated 21.1.1987, there was a v acancy of Senior Scientific Officer in the Biology division. Further, as per the Annexure-10 letter dated 16.6.1988 also, there was a vacant post in the Biology division as a result of release of the particular incumbent. Even on 23rd Janua ry 1991, Annexure-12 communication was made by none other than the Deputy Inspec tor General of Police (A), Assam to the Government in the Home Department clearl y indicating that there was a vacant post in the Biology division. 4. From the above, what is seen is that the stand of the respondents in the ir aforesaid Annexure-29 order was not correct and misleading. 5. The petitioner has been promoted to the post of Senior Scientific Office r w.e.f. 5.6.1992 as per the recommendation of the Assam Public Service Commissi on. Now, the difference is only about 7 (seven) months as the Respondent No.4 wa s promoted by order dated 13.11.1991. 6. Even if there was no vacancy in the Biology division, the particular pro vision in the Rules having been held to be ultravires to the Constitution of Ind ia, as per the direction of this Court in the aforesaid judgment, the respondent s could not have denied promotion to the petitioner at par with his junior i.e. the Respondent No.4, who was promoted w.e.f. 13.11.1991. That apart, as indicat ed above, there was also a vacancy in the Biology division, in which the petitio ner could have been promoted at par with his junior. 7. In view of the above, this writ petition is allowed providing that the r espondents shall antedate the promotion of the petitioner to the post of Senior Scientific Officer w.e.f. 13.11.1991 at par with his junior. If need be, the re spondents shall create a supernumerary post to cover up the period from 13.11.19 91 to 5.6.1992. The petitioner will also be entitled to all consequential servic e benefits. Let the entire exercise be carried out by the respondents, as expedi tiously as possible, preferably within 15th June 2010. This target is expected i n view of the fact that the petitioner will be retiring from service on 31st Jul y 2010 on attaining the age of superannuation. 8. Writ petition is allowed.