A.S. Qureshi, J.
1. The petitioner herein joined the service as Forest Guard on 13th August, 1974. According to him he was entitled to be promoted as Forester some time in 1975 when the person who was next to him in seniority was promoted from Forest Guard to Forester. The petitioner contends that he has been performing his duties to the best of his abilities and that there was nothing positive against him to deprive him of his promotion, in due course as Forester. The petitioner points out that on two occasions he had been communicated adverse remarks against him. The first communication is dated 31st March, 1981 relating to the service during the year 1970-80. The second communication is dated 16th July, 1983 pertaining to the service during the year 1982-83. Both these communications are annexed to the petition as Annexures 'A' and 'B'. These communications show that the petitioner's performance was poor and the attendance was irregular. The petitioner in his reply to the said communication pointed out that it was not correct to stay that his performance was poor or that he was irregular. He has also pointed out that at no point of time has he been punished or any other disciplinary action taken against him. The said representations of the petitioner were not replied to. The petitioner made representations to the respondents to give him promotion as and when it became due. One such representation was sent on 10th January, 1983 (Annexure-C). The reply thereto was given by the Conservator of Forest, Junagadh Circle by his letter dated 11th October, 1983 wherein it was pointed out that the petitioner did not possess enough efficiency to be promoted. However, if and when he improves of his performance, his request for promotion may be considered.
2. Mr. R.N. Shah, the Learned Counsel for the petitioner has submitted that for promotion to the post of Forester from that of Forest Guard is seniority-cum-merit. He has urged that there is nothing on record to show that the petitioner was found to be positively unfit for being promoted. Hence, according to him the petitioner should have been promoted on the basis of his seniority when he was due for promotion. According to Mr. Shah, the vague remark of the performance being not quite satisfactory is not based on any reliable material on record. In any case, according to him, the petitioner had very clearly pointed out in his representation that the allegation of inefficiency was not correct and there was no foundation therefor.
3. Mr. M. B. Gandhi, the learned A.G.P. has urged that even when the criterion for promotion is seniority-cum-merit, a person has to show that he has sufficient merit to be promoted. In this case according to him, the petitioner has been found to be weak in performance and therefore he could only be promoted when his efficiency improves. It is a well laid down principle that when the criterion for promotion is seniority-cum-merit, the seniority prevails in absence of a clear finding that the person concerned is positively unfit to be promoted, In this case, there is nothing on the record to show that petitioner was positively unfit for promotion. A mere vague allegation of inefficiency or irregularity without any facts to substantiate such an allegation cannot be regarded as positive unfitness. There has to be something quite substantial against the person to show that he is not fit to be promoted. That requires much greater demerit than the mere allegation of inefficiency or irregularity in attendance.
4. Moreover, it does not seem to have any basis for making such allegations. This Court, has held in the case of Dr. B.R. Kulkarni v. Government of Gujarat and Ors. XIX G.L.R. 1021, that an ephemeral roll should be maintained to show the day-to-day performance 'of the employee which could provide material for coming to the conclusion that his performance is not good, and that the adverse remarks entered in the confidential reports can be based on the material contained in the ephemeral roll. It is therefore clear that the respondents have wrongly denied the petitioner the promotion he was entitled to from the post of Forest Guard to that of the Forester when it was due to him on the basis of his seniority. The petitioner therefore will have to be given promotion from Forest Guard to Forester with effect from the date on which he was due for such a promotion on the basis of his seniority. It will have to be from the date on which the person immediately next to him in the seniority was promoted from Forest Guard to Forester.
5. In the result, the petition succeeds. A writ of certiorari shall issue quashing and setting aside the letter dated 1lth October, 1983 (Annexure-D) denying the petitioner the promotion he is held to be entitled to. A writ of mandamus shall also issue directing the respondents to promote the petitioner from Forest Guard to Forester with effect from the date he was entitled to the promotion on the basis of his seniority which will be the same date as that of the person immediately next to him in the seniority was promoted. The petitioner would be entitled to the difference in salary, seniority and all other benefits as if he was promoted on the date on which he was entitled to the promotion as stated above. Rule made absolute. There shall be no order as to costs. The amount payable to the petitioner would be paid within a period of six weeks from the date on which the writ is received by the respondents.