IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.6948 of 2009 Prem Shankar Srivastava Versus The State Of Bihar & Ors ---------- For the Petitioner: Mr. Suraj Narayan Yadav, Advocate For the State : Mr. Lalit Kishore, AAG No. 1 with Mr. Shivam Singh, AC to AAG No. 1 ------- 2. 05.08.2011 Heard learned Counsel for the petitioner and the learned Counsel for the State. The petitioner has superannuated on 31.7.2007 from the post of Joint Director (Technical) in the Department of Industries. He is aggrieved by the denial of promotion to the post of Additional Director (Technical). Learned Counsel submits that the petitioner fulfilled all requirements of eligibility for promotion. As on 1.7.2007 two vacancies of Additional Director (Technical) were available and he could well have been considered prior to superannuation. The time lag of approximately thirty days only till his superannuation was not relevant. Sri Rajendra Prasad Singh, his senior, was promoted on 25.6.2007 before his superannuation on 30.6.2007. The delay in consideration, being attributable to the respondents, the petitioner cannot be visited with the consequences. The promotion to be given now shall only be notional. Learned Additional Advocate General No. I for the State, submitted that on the date when Sri Rajendra pd. Singh was being considered there existed only one vacancy for the post of Additional Director (Technical). The question of the DPC considering any others including the petitioner therefore did not arise. No junior to the petitioner has been promoted as Additional 2 Director (Technical) prior to his superannuation. In fact his immediate senior Sri Ram Parikshan Singh and the immediate junior Sri Ajay Kumar Singh have both been considered by the next DPC on 17.1.2008 after superannuation of the petitioner. Any direction for grant of notional promotion to the petitioner would have a deleterious effect on the administration as it is not possible for the DPC to be held at frequent intervals in accordance with the date of superannuation of each employee. Several claims could arise and start arising for notional promotions in this manner. Having considered the submissions made on behalf of the parties, it stands as a mater of fact that no junior to the petitioner has been promoted before his superannuation. The right to be considered for promotion is but an inchoate right. It may fructify or it may not fructify. In (2009) 12 SCC 62 (High Court of Delhi Vs A. K. Mahajan), the retrospective amendment of the Rules affecting promotions was upheld holding:- “22. This Court has time and again held that since promotion is not a right of the employee, a mere chance of promotion if affected cannot and does not invalidate the action on the part of the employer. That right of consideration may accrue at a particular point of time or subsequently thereto. Merely because at a particular point of time the employee is not considered, does not mean the total denial of the consideration of the employee.” It cannot be said that the petitioner has been dealt with arbitrarily or discriminated based on denial of this inchoate right. On 25.6.2007 when Sri Rajendra Prasad Singh was promoted for a period of five days, there was only a singular vacancy. If the DPC had met after that date and before the superannuation of the petitioner matters may have been entirely different. His immediate 3 senior has been promoted in a DPC held after the superannuation of the petitioner. The Court cannot loose sight of the fact that any observation and/or direction to consider the petitioner for notional promotion as on 1.7.2007 shall naturally require interference with the promotion of Sri Ram Parikshan Singh also. There are no allegations that the DPC malafide did not meet to deny him consideration. The Court therefore holds that even though there were two vacancies on 1.7.2007 prior to his superannuation, the petitioner had no indefeasible right to be considered and promoted. If no DPC was held during that period, no fault can be found with the respondents. The Court cannot shut its eyes to the sequence of dates and events running at a very close duration. The Court also cannot shut its eyes to the question of the possible administrative turmoil that shall be created even if an order of notional promotion is directed in favour of he petitioner. The Court in exercise of its discretionary powers under Article 226 of the Constitution even if it finds that the action was not sustainable, yet it can decline relief in the facts of a particular case exercising its discretion for specified reasons. The conclusion finds support from (2003) 6 SCC 545 (Chandra Singh Vs State of Rajasthan):- “43. Issuance of a writ of certiorari is a discretionary remedy. The High Court and consequently this Court while exercising their extraordinary jurisdiction under Article 226 or 32 of the Constitution of India may not strike down an illegal order although it would be lawful to do so. In a given case, the High Court or this Court may refuse to extend the benefit of a discretionary relief to the applicant……….” The writ application is dismissed. Snkumar/- (Navin Sinha,J.) 4