IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTY SIXTH DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE THE CHIEF JUSTICE AND THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR Writ Appeal No.815 of 2008 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 19/4/2008 in Writ Petition No.8642 of 2008 on the file of the High Court.) Between: B. Ashok Kumar S/o.Late B. Ananda Swamy, Occ: Deputy Secretary (Retd.), Intermediate Education, R/o.18.8.417, Lalithabagh, Near Uppuguda Railway Station, Hyderabad – 53. ... APPELLANT AND 1) The Board of Intermediate Education, rep. by its Vice-Chairman and Prl. Secretary to Higher Education, Govt. of A.P. Secretariat, Hyderabad. 2) The Secretary, Board of Intermediate Education, Govt. of A.P., Nampally, Hyderabad. ...RESPONDENTS Counsel for the Appellant: MR.C. SRINIVASA BABA Counsel for Respondents: KUM. C. SINDHU KUMARI The Court made the following: J U D G M E N T : (Per Shri Anil R. Dave, Chief Justice) 1. Being aggrieved by the order dated 19.4.2008 passed by the learned Single Judge in Writ Petition No.8642 of 2008, this appeal has been ﬁled by the original petitioner. 2. Heard the learned advocates and have also perused the impugned order. 3. The only grievance, which had been ventilated by the appellant before the learned Single Judge was that he was not promoted to the post of Joint Secretary, Board of Intermediate Education, though the promotional post was vacant and he was eligible for promotion. 4. On a perusal of the case record it is clear that the appellant – petitioner was never superceded by any junior to him. It is also true that one promotional post in the cadre of Joint Secretary was vacant and the appellant – petitioner, being the seniormost in the feeder cadre at the relevant time, could have been promoted to the said post. But, for the reasons best known to the respondent – employer, the appellant – petitioner had not been promoted. 5. According to us, the appellant – petitioner was not having any legal right much-less a fundamental right to be promoted, simply because there was a vacancy in the promotional cadre. It is for the employer to ﬁll up the promotional posts. In view of the fact that the appellant – petitioner was never superceded, the learned Single Judge has rightly dismissed the petition by observing that no right of the appellant – petitioner was violated. 6. Learned advocate for the appellant has submitted that as the appellant – petitioner was the seniormost in the feeder cadre and as he was due for promotion, he ought to have been given promotion. In support of his submission, he has relied upon the judgment delivered in the case of Vijay Kumar Sharma v. Chairman, School Service Commission[1]. 7. Upon perusal of the afore-stated judgment, it is found that possibly the employer had not promoted the person belonging to OBC category though there was vacancy and discriminatory treatment was given to the candidates who were in the OBC category. It is pertinent to note that in the said case, life of the panel for General category had been extended whereas life of the panel of OBC category had not been extended. In the circumstances, the Hon’ble Supreme Court had directed that the person who was in the OBC category ought to have been promoted. 8. In the instant case, no such case has been made out. On the contrary, the law on the subject is very clear. It is for the employer to decide whether the promotional post should be ﬁlled up or not. This Court cannot constrain an employer to ﬁll up all vacancies even if the employer does not want to ﬁll up the vacancies. The Hon’ble Supreme Court has observed in the case of Baitarani Gramya Bank v. Pallab Kumar and ors.[2] that even if the name of a person has been included in the select list, he has no right to be appointed unless the person lower in the merit list is appointed. 9. Even in the case of Union of India v. N.R. Banerjee[3], relied upon by the learned advocate appearing for the appellant, it has been held that mere inclusion of a person’s name in the panel of selected candidates would not give any right to the candidate to be appointed or promoted unless there is some mandatory provision by virtue of which it becomes obligatory on the part of the employer to ﬁll up the post. 10. For the reasons stated hereinabove and looking to the settled legal position, in our opinion, no right of the appellant – petitioner had been violated by the respondent – employer by not promoting him to the higher post. The petition was, therefore, rightly rejected by the learned Single Judge. 11. In the afore-stated circumstances, we do not ﬁnd any substance in the appeal and, therefore, the appeal is dismissed with no order as to costs. ANIL R. DAVE, CJ August , 2008 VILAS V. AFZULPURKAR, J svs [1] (2001) 4 SCC289 [2] 2003 (6) Supreme 621 [3] (1997) SCC (L & S) 1194