Ajay K. Basu, J.
1. This is an appeal filed by the State of West Bengal against the order and judgment passed by J. P. Mitter, J., allowing the writ application of the petitioner.
2. The facts are that one Nishakar Choudhury, the petitioner since deceased, was a member of Bengal Civil Service (Judicial) and afterwards became member of the West Bengal Higher Judicial Service upto the time of his retirement on the 1st March, 1956. By an order dated 4-1-1954, he was confirmed in the grade of District Judge in the Higher Judicial Service with retrospective effect from 21-1-1951. And, in fact, at the time of retirement he was holding the post of Additional District and Sessions Judge, 24 Parganas at Alipore.
3. The main contention of the petitioner was that though he was confirmed as a District and Sessions Judge by the order of the Government dated 4th January, 1954, with retrospective effect from 21st January, 1951, he was not promoted to the selection grade of Sub-ordinate Judges on 15-1-1950 and that other officers who were junior to him were given the Selection Grade of Subordinate Judges passing over the petitioner's claim for such Selection Grade which resulted certain pecuniary loss to him.
4. According to the petitioner, his non-promotion to the Selection Grade of Sub-bordinate Judges should be treated as withholding promotion under Rule 49 of the C. S. Classification Rules which is a penalty and entitles him to appeal under Rule 56 of the said Rules under which he is governed.
5. The further case of the petitioner was that under Rule 56 he preferred an appeal to the Governor but the Government has not yet taken any decision though the appeal was filed as early as on 4th August, 1954.
6. On these allegations the petitioner obtained a Rule under Article 226 of the Constitution on 24-7-1957 and ultimately the Rule was heard by J. P. Mitter, J. on 22nd June. 1960 and by his judgment of the 14th August, 1961, Mitter, J. held that the appeal by the petitioner before the Governor was maintainable and therefore ordered that the appeal preferred by the petitioner be considered by the Governor.
7. From this order of Mitter, J., the State of West Bengal preferred an appeal which has come up before us for hearing.
8. Mr. Roy Choudhury, appearing for the appellant, argued that the appeal should be allowed because the contention of the petitioner that the non-selection to the Selection Grade was a penalty as it is deemed to be withholding promotion within the meaning of Rule 49 is erroneous and illegal. If the Rule 49 is not attracted in the case of the petitioner then the petitioner has no right of appeal under Rule 56. Hence, the Governor cannot entertain such appeal.
9. The next point urged by Mr. Roy Choudhury was that in any event, the petitioner having died before the judgment of the lower Court the application should have abated and Mitter, J., should have discharged the Rule on that ground alone on the principle of actio personalis moritur cum persona.
10. Mr. Noni Coomar Chakravarti, appearing for the respondents, drew our attention to the inordinate delay of the Government in not disposing the appeal. Mr. Chakravarti also drew our attention to the letter written by Shri B. K. Bhattacharyya, the then Registrar of the Appellate Side, High Court, dated 3/4 September, 1954 being annexure 'B' to the petition in which the Registrar had used the expression 'Withholding Promotion' in the case of Selection Grade.
11. In our opinion, the letter is rather unhappily worded but the position at lawcannot be changed by any statement made by the Registrar of this Court.
12. There is no doubt that mandamus lies against a statutory tribunal to dispose of a matter pending before it if it makes unreasonable delay in determining it (vide Halsbury's Laws of England 3rd Ed., Vol. II. p. 95). But the Court cannot, by man-damus, compel an inferior tribunal to exercise a jurisdiction which it does not possess.
13. The main point for determination in this appeal, therefore, is whether the refusal to promote Sri Choudhury to the Selection Grade of a Subordinate Judge amounts to a penalty of 'withholding promotion' within the meaning of Rule 49 of the Civil Services Classification (Control and Appeal) Rules, because otherwise no appeal will lie under Rule 56 of the said Rules.
14. In our opinion, non-promotion to a selection post is not a 'penalty' as contemplated under Rule 49 as 'withholding promotion'. In the case of the High Court at Calcutta v. Amal Kumar Roy reported in : 1SCR437 the Supreme Court has held that where there is no disciplinary action taken against the petitioner, Rule 49 has no application.
15. In our view, no one has a right to get promotion to the Selection Grade (as a matter of course) and in this particular case the High Court after due consideration did not consider the petitioner for being promoted to the Selection post as stated in Annexure 'B'. The appellants have failed to point out anything to show that the Selection goes by seniority alone or that a person cannot be confirmed as a District Judge unless he had been promoted to the Selection Grade of Sub-Judges. In fact, it is stated in the petition that there are only 3 + 1 posts in the Selection Grade, while the number of posts of District Judges is much larger.
16. No allegations were made against Sri Choudhury and he was not sought to be punished for any misconduct. He was not promoted simply because he was not considered fit for getting the extra emolument attached to the Selection Grade. Hence, it cannot be held that the refusal to promote was 'penal in nature'.
17. It cannot be overlooked, that Rule 49 gives a list of 'penalties'. Unless the order is penal in nature, neither Rule 49 nor 56 would be attracted.
18. In the instant case, thus, no appeal lay to the Governor and the petitioner is not entitled to the mandamus asked for.
19. In view of our decision on this point, it is not necessary to go into the question of abatement raised on behalf of the appellants.
20. The appeal is allowed and the judgment of the Court below is set aside. But we make no order as to costs.
21. D. Basu, J.