IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FIFTH DAY OF DECEMBER, TWO THOUSAND EIGHT ONLY PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.25167 of 1997 Between: A.Laxmi Devi … Petitioner AND The Director, Sri Venkateswara Institute of Medical Sciences, Tirupati and others. … Respondents Counsel for the petitioner : Sri V.R.Reddy Kovvuri Counsel for respondent No.1: Mrs. P. Sarada Counsel for respondent Nos.2 to 13: Sri V.Jagapathi This Court made the following: THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.25167 of 1997 ORDER:- This writ petition is filed for a Writ of Mandamus to declare the action of respondent No.1 in not promoting the petitioner to the post of Head Nurse on 29.09.1996 and in issuing proceedings dated 09.09.2004 permitting respondent Nos.2 to 13 after they gained eligibility ignoring the petitioner’s case, as illegal and arbitrary. Heard Sri V.R. Reddy Kovvuri, learned counsel for the petitioner, Smt. P. Sarada, learned counsel for respondent No.1 and Sri V. Jagapathi, learned counsel for respondent Nos.2 to 13. The petitioner was appointed as Staff Nurse in respondent No.1 institute on 29.01.1993. She applied for the post of Head Nurse and she was called for interview scheduled to be held on 10.11.1993. After she faced interview, she was not appointed as Head Nurse, but one Smt. Padmaja was appointed. The grievance of the petitioner is that though she was fully eligible for appointment with 10 years of overall service as Staff Nurse, which was required for promotion, respondent No.1 deliberately did not fill up the vacancy only with a view to see that respondent Nos.2 to 13, who did not have the requisite 10 years of service as Staff Nurses, attain eligibility. The petitioner along with respondent Nos.2 to 13 were promoted on 05.12.2005. Respondent No.1, who filed a counter affidavit earlier, also filed a revised counter affidavit later. It is inter alia stated that the petitioner, who claimed to have 10 years experience, had total experience of 7 years only and she did not possess 10 years of experience as claimed by her and that as the other candidate, who appeared along with the petitioner, satisfied the qualification of B.Sc. Nursing with 5 years of experience as Head Nurse as prescribed in the advertisement, she was selected in the interview. It is further stated that the advertisement was given for direct recruitment and not for promotion and that as the petitioner did not satisfy the requisite criteria for direct recruitment, she was not appointed. The answering respondent also referred to WP.No.16295 of 1998 filed by Ms. S. Vahede, Staff Nurse, who questioned the provisional seniority list and in view of the pendency of the said writ petition, the Staff Nurses did not file their objections and eventually in August, 2004 the seniority list of 1992-93 batch employees was finalized and on the basis of the list prepared on 23.08.2004, 12 Staff Nurses were promoted as Head Nurses under the first batch vide proceedings dated 09.09.2004 and 15 Staff Nurses were promoted as Head Nurses under the second batch vide proceedings dated 05.12.2005 and that the petitioner was one among those, who were promoted with effect from 05.12.2005. At the hearing, learned counsel for the petitioner vehemently contended that though the petitioner had satisfied all the requirements and possessed the qualifications prescribed for promotion to the post of Head Nurse, she was not given promotion till the year 2004. In my considered view, the employer has the discretion whether to fill up the vacancy or not. Merely because the petitioner had all the requisite qualifications for promotion and a vacancy existed, she has no right to insist that her promotion should date back to the time of her acquiring qualifications and the post becoming vacant. Though the petitioner pleaded that at the instance of respondent Nos.2 to 13, respondent No.1 did not fill up the post, no material is placed before the Court in support of such a plea. No mala fides are attributed against respondent No.1 nor he is made a party in his individual capacity. Unless the petitioner was able to substantiate the plea raised by her against respondent No.1 by producing evidence in support of such a plea, the vague and unsubstantiated plea cannot be accepted. Respondent No.1 categorically stated that the petitioner along with Smt. Padmaja were considered for direct recruitment post and not for a promotion post and that he selected Smt.Padmaja, who was found to have superior merit in the year 1993. The petitioner has not questioned her appointment. From these facts, I am of the view that the petitioner has not made out any case to direct for her retrospective promotion from the year 1996. For the abovementioned reasons, the writ petition is dismissed. As a sequel to dismissal of the writ petition, WPMP.No.13062 of 2005 filed by the petitioner for interim relief is also dismissed. ____________________________ C.V.NAGARJUNA REDDY, J Date: 05.12.2008 ES