D.P. Gupta, J.
1. The petition or in this case was appointed as a clerk in the office of the Chief Mechanical Engineer, Jodhpur Railway on December 2, 1946. However, in the view of his earlier million, service rendered in World War II, the service of the petitioner was counted with effect from April 26, 1942 for the purposes of seniority and allied matters. The petitioner was promoted as a Senior Clerk in the grade of Rs. 130-300 (AS) with effect from April 1, 1956. The petitioner's case is that he was eligible for promotion to the next higher post of Head Clerk in the grade of Rs. 210-380 (AS), but by the order dated April 15, 1972 his claim for promotion was ignored, although he was senior most Senior Clerk due for promotion and the respondent No. 4 was promoted instead of the petitioner. The grievance of the petitioner is that although he was found fit for promotion earlier and his record of service was excellent and there were no adverse remarks against the petitioner, yet he was declared not suitable for promotion at the time when such promotion was made by the order dated April 15, 1972. and that the petitioner was wrongly superseded Another grievance raised by the petitioner is that Shri G.K. Malhotra who was the then Divisional Mechanical Engineer ( Diesel), Jodhpur Division, interfered with the selection and obstructed the petitioner's promotion out of malice.
2. The respondents' case is that although the petitioner was senior most Senior Clerk yet he could not he promoted as Head Clerk as he was found not suitable for promotion because Dumber of punishments had been imposed upon the petitioner and as his confidential reports were also not good and his work was found to be unsatisfactory, year after year, beginning from the year 1967-68 The respondents have further stated that Kishenlal respondent No. 4 was promoted by the order dated April 15, 1972 as he was the next senior most Senior Clerk and that when the petitioner's record of service unproved he was promoted on November 26, 1973 as a Head Clerk against another vacancy, and that the petitioner should have no grievance now after he was promoted as a Head Clerk on November 26, 1973.
3. As for tie second contention advanced by the petitioner it does not deserve am consideration in view of the fact that Shri G.K. Malhotra, against whom allegations of malafides have been made in the writ petition has not been made a party to the writ petition and the charge of malafides cannot be examined in the absence of Shri G.K. Malhotra. Further the petitioner has fail, d to give any details as to in what manner Shri G.K. Malhotra interfered with the selection of the petitioner or obstructed his promotion to the post on Head Clerk. The contention of the petitioner in this respect is, therefore, repelled.
4. As regards the first contention of the petitioner it is not in despite that the petitioner was the senior most senior clerk due for promotion to the post of Head Clerk in the grade if Rs. 210.380 (AS). The posts of Head Clerk was declared as non-selection post and was to be filed in be promotion of the senior-post suitable railway servant it. It is also not in dilute that the suitability of a railway employee for purpose, of promotion has to be determined by the authority competent to fill in the said post by promotion on the basis of the recorded of service and/or departmental test, if any. In the present case, admittedly no suitability test was held for promotion to the post of Head Clerk thus the claim of the petitioner for promotion was to be considered on the basis of the record of his service. It may be pointed out that, the right of the petitioner was only to be considered for promotion, and ill after such consideration the authority competent to fill in the post of Head Clerk by promotion, did not find the petitioner suitable for such-promotion then the petitioner cannot complain of his non-promotion unless the same was based on no reason at all or on extraneous reasons or was the result of malice against the petitioner. The petitioner has tried to show that the punishments which were imposed upon him and which have been enumerated in para 16 of the reply to the writ petition were cancelled at some stage or the other. This submission of the petitioner has some force inasmuch as I find that most of the punishments awarded to the petitioner were subsequently either withdrawn or cancelled or were waived, yet it cannot be denied that the confidential reports of the petitioner were unsatisfactory during the years 1967-68 to 1970-71 The remarks recorded in his confidential reports during the year 1967 68 were that his work was 'unsatisfactory'. In the next year 1968 69, the performance was classified as below average. Then in the year 1969-70 his work was not found to be good and his performance was classified as average. Similarly in the year 1970-71 the work of the petitioner was found to be 'nor satisfactory' and his performance was classified as below average. On the basis of the aforesaid remarks made in his confidential, reports, if the competent authority did not find the petitioner suitable, for promotion, it cannot be said that there was no justification for the non-promotion of the petitioner in April 1972. The grievance of the petitioner in this respect is that the remarks recorded in his confidential reports for the years 1967-68, 1968-69 and 1969-70 were conveyed to him in the years 1969 and 1970,. It might be that the remarks were conveyed late to the petitioner but in any case they were so conveyed to him much before the question of his promotion to the higher grade of Head Clerk arose and the petitioner had sufficient time to make his representations in respect of adverse entries recorded in his confidential reports for the concerned periods. Mire over there is no basis for the petitioner's complaint that he was earlier found suitable for promotion to the post of Head Clerk but was not promoted when such promotion came to be effected by the order dated April 15, 1972.
5. In view of the fact that the case of the petitioner was duly considered for promotion when the post of Head Clerk fell vacant along with the case of his junior, respondent No. 4 Kishenlal but the petitioner was not given promotion as he was not found suitable, it is not possible to hold that there was any breach of the provisions of Article 16 of the Constitution in the present case. It cannot also be held that any rule or regulation applicable to railway employees was ignored in effecting such promotion. The petitioner has contended that under Rule 212 of the Indian Railway Establishment Manual, a senior employee could only be passed over if he was declared unfit for holding the post in question and such declaration of unfitness should ordinarily be made some time prior to the lime when the case of promotion of concerned railway servant is considered. The aforesaid rule speaks of what should 'ordinarily' be done and according lo this provision the declaration of unfitness should be made or ordinarily some time prior to the time when the question of promotion is considered. Even if that was not done earlier it clearly appears from the record that the performance of the petitioner was far from being satisfactory, the competent authority could not be held to be unjustified in declaring that he is unsuitable for promotion and in promoting the next senior man available.
6. In these circumstances, there is no substance in this writ petition, and the same is dismissed. The parties are left to bear their own costs.