1. The short facts are that the petitioner who was appointed on 14.02.1991 as Soil Conservation Officer with Gujarat State Land Development Corporation Ltd. (hereinafter referred to as “the Corporation”) completed 5 years of his service on 14.02.1996. As per the petitioner, there is further promotional avenue for the post of Assistant Director (Soil Conservation) from the post of Soil Conservation Officer. It is the case of the petitioner that he possesses requisite degree and has also completed 5 years of service. As per the petitioner, there are posts available of Assistant Director (Soil Conservation). In spite of the same, the respondent Corporation was not taking any action to fillup higher post and therefore, it has been prayed by the petitioner that he be given promotion with effect from 28.02.1996, i.e, the date on which higher post of Assistant Director (Soil Conservation) is sanctioned. The petitioner in the present petition has prayed for the aforesaid relief as well as has also prayed for quashing and setting aside AnnexureE whereby adhoc posting has been given on 28.12.1999.
2. I have heard Mr. Chetan Pandya for Mr.Kogje for the petitioner, Ms. Thakkar, learned AGP for respondent no.1 and Mr.Munshaw for respondent no.2.
3. It was submitted by the learned counsel for the petitioner that if the sanctioned post is available and no action is taken by the employer to fill up the sanctioned post, the petitioner would be entitled for promotion with retrospective date, more particularly because pending the petition, the petitioner has been granted promotion to the post of Assistant Director (Soil Conservation). The learned counsel in support of his contention has relied upon the decision of the Apex Court in the case of K.Madhavan and another v. Union of India and others reported in (1987) 4 SCC 566 and more particularly the observations made at paragraph 15. He submitted that the ground shown for not taking action to fill up higher post of Assistant Director (Soil Conservation) is arbitrary and therefore, the relief prayed by the petitioner deserves to be granted.
4. Whereas the learned counsel for the respondent by relying upon the affidavitinreply contended that the question of seniority is yet not finalised and therefore, the action is not taken for giving regular promotion to the post of Assistant Director and only adhoc promotion is considered. It was also submitted that there is no right with the petitioner to get automatic promotion since the promotion is only by way of selection and merely because the petitioner has completed 5 years of service, there is no automatic right of promotion.
5. As such, in my view the petition is on a misconceived premise inasmuch as even if it is considered that the petitioner was appointed as Soil Conservation Officer on 14.02.1991 and he completed 5 years of his service on 14.02.1996 and he is holding requisite degree, then also, he would not be entitled for automatic promotion as sought to be canvassed. It is an admitted position that the criteria for promotion is based on selection. Therefore, unless the petitioner is selected for the higher post, there is no automatic promotion. Further, merely because the higher posts are sanctioned, is also no valid ground for seeking deemed promotion from the date of sanction. Whether to fill up the higher post or not is a domain of the employer and no employee as of right can assert that the higher post must be filled up. It is true that such action for not filling up the higher post should not be arbitrary. The examination of the case further shows that as per the respondent no.2 Corporation, the question of seniority from amongst the officer in the cadre of Soil Conservation Officer is not finalised. Not only that, but there are various petitions preferred before this Court being Special Civil Applications no.2565/85, 2528/86, 512/89, 833/90, 981/90, 2753/90 and others and the interim orders are also passed. It is on account of the non finalisation of the seniority list from amongst the officer of feeder cadre, the Corporation has not given regular promotion even if sanctioned post is available but the Corporation has given charge on adhoc basis of the higher post, i.e., of Assistant Director (Soil Conservation). If the regular promotion is given, it may create further complications in future since the basic criteria is the seniority in the feeder cadre coupled with the aspect of selection. In my view, such ground for not filling up of the higher post of Assistant Director (Soil Conservation) on the part of the respondent Corporation cannot be said to be arbitrary.
6. Mr.Pandya, learned counsel for the petitioner further attempted to contend that similar was the position in the year 1991 and at that time, the Corporation had given promotion to the very post, but such a course is not adopted in the year 1996 when the petitioner became eligible and therefore, the said action can be said as arbitrary.
7. I am afraid such can be accepted. There are two reasons for not accepting the contention; one is that in the year 1991, the petitioner was not at all in the zone of consideration and the second is that no material has come on record to show that at the relevant point of time also the seniority question was not finalised from amongst the eligible officer and inspite of the same, the action was taken. In any case, when the petitioner did not enter the zone of consideration at the relevant point of time, he cannot make a valid grievance on that basis.
8. As observed earlier, there is no right with any employee to seek promotion merely because the posts are available. Since filling up of the post is the domain of the employer and the employer for the valid reason may not fill up the post even if the posts are available. The decision upon which the reliance has been placed in the case of K.Madhavan and another (supra) is also ill founded inasmuch as it is only when the DPC is arbitrarily or malafide cancelled such right may be required to be considered which is not the fact situation of the present case, inasmuch as, as observed earlier, the ground stated for not filling up of the post is not arbitrary. Further, in the very decision, the Apex Court has observed at very paragraph as under:
“An employee may be eligible for certain post, but surely he cannot claim appointment to such post as a matter of right.”
The petition is based on misconceived notion that the petitioner is entitled for the appointment on higher post as of right whereas such right to fill up the post is available to the Corporation.
9. Under the circumstances, the petition is devoid of merits. Hence, dismissed. Considering the facts and circumstances, no order as to costs.
*bjoy (JAYANT PATEL, J.)