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Judgment
Satish K. Agnihotri, J.
This petitioner was employed as Peon vide order dated 4.11.1989 and he is working in the office of the respondent No.3. Learned counsel for the petitioner submits that the petitioner is entitled to consideration for promotion to the post of Assistant Grade-III.
It is jointly admitted by learned counsel appearing for the parties that the minimum required qualification to the post is higher secondary pass and five years experience as regular employee on the post of Peon (Class-IV). It is further admitted that the petitioner has acquired higher secondary school examination certificate in the year 2001. The petitioner prays for his promotion, immediately after he has obtained the required qualification, after having worked for five years.
Promotion does not depend on the required qualification and experience only. Promotion depends upon other factors like availability of the posts and economic condition of the employer. Hon''ble Supreme Court in the case of Mohammad Shujat Ali and Others Vs. Union of India (UOI) and Others, has observed as under:
...It is true that a rule which confers a right of actual promotion or a right to be considered for promotion is a rule prescribing a condition of service. This proposition can no longer be disputed in view of several pronouncements of this Court on the point and particularly the decision in Mohammad Bhakar V.Y. Krishna Reddy 1 where this Court, speaking through Mitter, J., said : "Any rule which affects the promotion of a person relates to his condition of service". But when we speak of a right to be considered for promotion, we must not confuse it with mere chance of promotion-the latter would certainly not be a condition of service.
This Court pointed out in State of Mysore v. G. B. Purohit 2 that though a right to be considered for promotion is a condition of service, mere chances of promotion are not. A rule which merely affects chances of promotion cannot be regarded as varying a condition of service.
A constitution Bench of Hon''ble the Supreme Court in the case of Union of India and others Vs. S.L. Dutta and another, has held that mere chances of promotion are not conditions of service and the fact that there was reduction in the chances of promotion do not tantamount to a change in the condition of service. A right to be considered for promotion is a term of service, chances of promotion are not.
A constitution Bench of Hon''ble the Supreme Court in the case of Syed Khalid Rizvi and Others and Ramesh Prasad Singh and Others Vs. Union of India (UOI) and Others, has held that no employee has a right to promotion but he has only the right to be considered for promotion according to rules. Chances of promotion are not conditions of service and are defeasible. Further in the case of High Court of Gujarat and another Vs. Gujarat Kishan Mazdoor Panchayat and others { (2003) 4 SCC 712} it was held by the Hon''ble Supreme Court that an employee has legitimate expectation to be promoted to the higher post but nobody has a vested right to be promoted.
In the case of K. Samantaray Vs. National Insurance Co. Ltd., the Hon''ble Supreme Court has held that "promotion, as understood in the service law jurisprudence, is advancement in rank, grade or both and no employee has a right to be promoted, but has a right to be considered for promotion."
In view of the principles laid down by the Hon''ble Supreme Court in the cases (supra), it is well settled that no employee has a right to be promoted, but has a right to be considered for promotion. By virtue of the fact that the petitioner has completed more than fiver years on the post of Peon and has acquired qualification in the year 2001, he has no right to the promotion to the next higher post, but he has a right to be considered for promotion to the next higher post.
For the reasons stated above, the petition is allowed. The respondents are directed to consider the case of the petitioner for promotion to the next higher post, in accordance with law. No order as to costs.