Hiten S. Venegavkar, J.

1. Rule. Rule is made returnable forthwith. By consent of the Learned Advocates appearing for the parties, the petition is heard finally.

2. The Petitioners are presently working as Superintendents (Legal/Drafting) in the Law Department of the Government of Goa. Their grievance is that the dates assigned to their promotions ignore an earlier exclusion from consideration which, according to them, became indefensible after the Government itself absorbed them in the Secretariat cadre from June 2010 with all consequential benefits. That prospective treatment now prevents them from completing the prescribed five years' regular service for promotion as Under Secretary and has led the Government to seek candidates by deputation and direct recruitment. The controversy is therefore not about a right to promotion merely because vacancies existed. It is about the consequence of a retrospective recognition of cadre status upon an earlier promotional process in which they were left out for want of that very status.

3. The material facts are substantially undisputed. The Petitioners submit that, after a regular selection, they were appointed as Legal Assistants in the Electricity Department on 18 April 2007 and were confirmed on 16 February 2010. By order dated 1 June 2010, two posts of Legal Assistant in that Department were transferred, together with their incumbents, to the General Administration Department for deployment in the Law Department. Petitioner No. 1 joined the General Administration Department on 11 June 2010 and Petitioner No. 2 on 14 June 2010. Both were posted in the Law Department on 15 June 2010.

4. The Petitioners contend that they thereafter performed the same duties as Legal Assistants already serving on the establishment of the Law Department but continued in a lower pay scale. They instituted Writ Petition No. 809 of 2015 in this Court for seeking parity in pay scale with their incumbents. By judgment dated 12 July 2022, this Court held that the Petitioners were not merely similarly circumstanced but stood merged in the cadre of Legal Assistants working on the establishment of the Law Department. The State was directed to place them in the pay scale of Rs. 9300-34800 with Grade Pay of Rs. 4200 from the date of institution of that Petition, with consequential benefits.

5. The Government thereafter issued an Order dated 12 April 2023 after approval of the Council of Ministers. The Order absorbs the Petitioners and the two Legal Assistants transferred from the Transport Department against the Secretariat cadre of Legal Assistants, in the applicable scale, with effect from their respective dates of joining the General Administration Department in June 2010. It further declares that they shall be entitled to all consequential benefits. It is important to note that the said Order has neither been withdrawn nor qualified and it stands effective even as on date.

6. After considering the history of selection and appointments of the Petitioners, even the history of the promotional vacancies is very important. Three posts of Superintendent (Legal/Drafting) became vacant on 27 October 2017. The proposal placed before the authorities in 2018 initially referred to all three vacancies. The Government, however, requested the Goa Public Service Commission to process only two. The contemporary file noting’s record that, although the four transferred Legal Assistants figured at serial Nos. 4 to 7 of the common seniority list, they were not to be considered because they did not belong to the Secretariat cadre and were drawing a lower scale thus could not be promoted to a post carrying a scale two stages above their existing scale. The noting’s further recorded that the pay-scale dispute of the present Petitioners in Writ Petition No. 809 of 2015 was still sub judice as on that date when the proposal was forwarded for promotion as state above.

7. The Departmental Promotion Committee (in short DPC) met on 11 July 2018. It considered only the two Legal Assistants directly recruited in the Law Department. Accordingly, Shri Narayan K. Abhyankar and Smt. Sonia S. Volvoikar were recommended and were promoted as Superintendents with immediate effect from 19 July 2018. The third vacancy of 2017 was not filled and continued to remain vacant. Another vacancy arose on 3 July 2019 when Smt. Tanuja S. Shetkar was promoted as Under Secretary (Drafting). It’s a matter of record that no annual DPC was convened for that vacancy.

8. After the Order of absorption, a DPC met on 6 February 2025 to fill four vacancies, one of 2017, one of 2019 and two of 2022. The Minutes of DPC meeting identified the vacancies year-wise. For the 2017 vacancy, the Committee considered Petitioner No. 1, Petitioner No. 2 and the two officers below them. For the 2019 vacancy, it considered Petitioner No. 2 and the two officers below her. The Minutes record the dates of regular appointment of Petitioner No. 1 and Petitioner No. 2 as 11 June 2010 and 14 June 2010, respectively, and that each completed five years' regular service in June 2015. All the officers were graded fit. Petitioner No. 1 was placed against the 2017 vacancy and Petitioner No. 2 against the 2019 vacancy. The Committee, however, recommended promotion on regular basis with immediate effect. Consistently with that recommendation, the Order dated 28 February 2025 promoted the Petitioners only prospectively.

9. The next promotional post is Under Secretary. The Recruitment Rules published on 12 March 2008 cover the posts of Under Secretary (Drafting), Under Secretary (Law), Under Secretary (Legal) and Under Secretary (Legislative Affairs). The prescribed sequence is firstly by promotion; failing which, transfer on deputation; and failing both, appointment by direct recruitment. For promotion, the feeder category is Superintendent (Legal/Drafting) in the Legal Affairs Section of the Law Department with five years' regular service in the respective grade.

10. The Goa Public Service Commission advertised the post of Under Secretary (Legislative Affairs) for deputation on 10 January 2025. That process did not yield a suitable candidate. Advertisement No. 9A of 2025 was thereafter issued for direct recruitment. Advertisement No. 10 of 2025 was issued to fill the post of Under Secretary (Law) by deputation. By interim orders, the selection processes were permitted to continue, but the results were directed to be kept in sealed cover.

11. The Petitioners submit that their exclusion from the 2018 field was not attributable to any want of qualification or service on their part. The Government had expressly excluded them because it then regarded them as outside the Secretariat cadre and because their claim to the equivalent pay scale was pending before this Court. Once that basis was judicially adjudicated and the Government itself absorbed them retrospectively from June 2010, Petitioners therefore contend that paragraph 18.1 of the DPC guidelines requires a review of the earlier exercise in terms of the Orders of this Court and subsequent order of the department absorbing them retrospectively from June 2010.

12. Mr. S. D. Lotlikar, learned Senior Advocate for the Petitioners, submits that paragraph 18.2 of the guidelines does not bar such review. According to him, the Petitioners did not acquire a qualification for the first time in 2023. The Order of 12 April 2023 recognised an antecedent status from June 2010. The DPC of 2025 accepted precisely that position and treated both Petitioners as having completed five years' regular service in June 2015. The DPC has further considered the vacancies year-wise and found them fit for promotion.

13. On the meaning of term “five years' regular service for promotion” as Under Secretary, learned Senior Advocate relies upon Union of India v. K.B. Rajoria((2000) 3 SCC 562). He submits that regular service is not synonymous with actual physical service and is contrasted with ad hoc or stopgap service. He distinguishes Union of India v. M. Bhaskar((1996) 4 SCC 416), where the governing rule expressly required experience in the promotional grade. He also relies upon P.N. Premachandran v. State of Kerala((2004) 1 SCC 245), and Major General H.M. Singh, VSM v. Union of India((2014) 3 SCC 670), to submit that an employee found suitable cannot be made to suffer for an administrative failure to hold a promotional process in time.

14. Mr. Deep Shirodkar, learned Additional Government Advocate for Respondent Nos. 1 and 2, submits that the Petition is barred by delay and laches. The Petitioners knew of the 2018 DPC, but neither challenged it then nor amended Writ Petition No. 809 of 2015. He submits that the two officers promoted in 2018 are necessary parties and that a review of DPC of 2018 cannot be ordered in their absence.

15. Learned Additional Government Advocate further submits that the earlier Writ Petition was confined to equal pay and did not concern promotion. The Government had consciously decided in 2018 to fill only two vacancies, and no employee can compel it to fill every vacancy. According to him, paragraph 18.2 permits a review DPC to consider only those who were eligible on the date of the original DPC. The Petitioners became members of the Secretariat cadre only by the Order of 12 April 2023 and cannot retrospectively enter the field of consideration.

16. The learned Additional Government Advocate relies upon Union of India v. M. Bhaskar((1996) 4 SCC 416), P.N. Premachandran v. State of Kerala((2004) 1 SCC 245), and Major General H.M. Singh, VSM v. Union of India((2014) 3 SCC 670). He submits that promotion ordinarily takes effect when granted and not when a vacancy arises. He further argues that, even if notional promotion is granted, the Recruitment Rules require five years' actual work as Superintendent because the higher post carries duties and responsibilities different from those of a Legal Assistant.

17. Mr. Somnath Karpe, learned Advocate for the Goa Public Service Commission, submits that the Commission acted upon the requisitions forwarded by the Government and in accordance with the Recruitment Rules. The Commission has no independent role in determining the effective dates of the Petitioners' promotions. He confirms that, pursuant to the interim orders, the selection processes have proceeded but their results remain in sealed cover.

18. Having heard the respective Advocates for Respondents and Learned Senior Counsel for the Petitioners, the following questions arise for our consideration-

                    I) whether the Petition is defeated by delay or non-joinder.

                    II) whether the Petitioners acquired eligibility only in 2023 or whether the order of absorption recognised their pre-existing eligibility from June 2010.

                    III) whether the circumstances warrant a review of the 2018 and 2019 promotional exercises and, if so, what service consequences may lawfully follow.

                    IV) whether notional regular service, if granted through such corrective process, can be counted towards the five years' regular service prescribed for promotion as Under Secretary.

The last two questions must be kept distinct. The meaning of regular service cannot supply an otherwise unavailable power to antedate promotion. What is required to be done beforehand is the legal basis for corrective promotion must be established first.

19. It is a settled principle of law that there is no fundamental right to promotion. There is, however, a fundamental right to fair consideration in accordance with the governing rules. This principle has been pronounced by the Constitution Bench of Supreme Court of India in Ajit Singh (II) v. State of Punjab((1999) 7 SCC 209), wherein, it was held that equality of opportunity under Article 16(1) includes the right to be considered for promotion. The same principle was reiterated in the case of Ajay Kumar Shukla v. Arvind Rai((2022) 3 SCC 501). The relevant paragraphs are -

                    “41. This Court, time and again, has laid emphasis on right to be considered for promotion to be a fundamental right, as was held by K. Ramaswamy, J., in Lift Irrigation Corpn. Ltd. v. Pravat Kiran Mohantya in para 4 of the report which is reproduced below: (SCC p. 299)

                    "4. ... There is no fundamental right to promotion, but an employee has only right to be considered for promotion, when it arises, in accordance with relevant rules. From this perspective in our view the conclusion of the High Court that the gradation list prepared by the corporation is in violation of the right of respondent-writ petitioner to equality enshrined under Article 14 read with Article 16 of the Constitution, and the respondent-writ petitioner was unjustly denied of the same is obviously unjustified."

                    42. A Constitution Bench in Ajit Singh (2) v. State of Punjab¹¹, laying emphasis on Article 14 and Article 16(1) of the Constitution of India held that if a person who satisfies the eligibility and the criteria for promotion but still is not considered for promotion, then there will be clear violation of his/her's fundamental right. Jagannadha Rao, J. speaking for himself and Anand, C.J., Venkataswami, Pattanaik, Kurdukar, JJ., observed the same as follows in paras 22 and 27: (SCC pp. 227-28)

                    "Articles 14 and 16(1): is right to be considered for promotion a fundamental right

                    22. Article 14 and Article 16(1) are closely connected. They deal with individual rights of the person. Article 14 demands that the 'State shall not deny to any person equality before the law or the equal protection of the laws'. Article 16(1) issues a positive command that:

                    'there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State'.

                    It has been held repeatedly by this Court that clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The said clause particularises the generality in Article 14 and identifies, in a constitutional sense "equality of opportunity" in matters of employment and appointment to any office under the State. The word "employment" being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment.

                    Article 16(1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be "considered" for promotion. Equal opportunity here means the right to be "considered" for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be "considered" for promotion, which is his personal right. "Promotion" based on equal opportunity and seniority attached to such promotion are facets of fundamental right under Article 16(1)

                    27. In our opinion, the above view expressed in Ashok Kumar Gupta12 and followed in Jagdish Lal and other cases, if it is intended to lay down that the right guaranteed to employees for being "considered" for promotion according to relevant rules of recruitment by promotion (i.e. whether on the basis of seniority or merit) is only a statutory right and not a fundamental right, we cannot accept the proposition. We have already stated earlier that the right to equal opportunity in the matter of promotion in the sense of a right to be "considered" for promotion is indeed a fundamental right guaranteed under Article 16(1) and this has never been doubted in any other case before Ashok Kumar Gupta 12 right from 1950."

Thus, while exercising judicial assessment in promotional matters a Constitutional Court cannot perform the comparative assessment entrusted to a DPC, but it can require reconsideration where an eligible employee was excluded on a legally untenable premise.

20. Even the Law on the corresponding limitation is equally settled. Promotion does not ordinarily relate back to the date on which a vacancy arose. The Hon’ble Supreme Court of India in a series of judgements has recognised and laid down this principle. In order to name few of the leading case laws then in case of Union of India v. K.K. Vadera(1989 Supp (2) SCC 625), Ganga Vishan Gujrati v. State of Rajasthan((2019) 16 SCC 28), and Union of India v. Manpreet Singh Poonam((2022) 6 SCC 105). It is categorically held that, the existence of a vacancy, completion of qualifying service or inclusion in a zone of consideration does not create a vested right to retrospective promotion. Seniority cannot ordinarily be granted from a date on which the employee was not borne in the promotional cadre, particularly where it disturbs persons validly appointed in the meantime.

21. The Supreme Court has recently reiterated the rule in Bihar State Electricity Board v. Dharamdeo Das(2024 SCC OnLine SC 1768). There the employee sought accelerated promotion from 1997 merely because he had completed the minimum qualifying period and asserted that a vacancy existed. The Supreme Court found that no vacancy in the relevant cadre was available during the material period and further held that the employer's action was guided by administrative exigencies, and that there was no wrongful deprivation of an actual promotional process. The claim to promotion from the alleged vacancy date was therefore rejected.

22. Government of West Bengal v. Dr. Amal Satpathi(2024 SCC OnLine SC 3512), also reiterates that a recommendation or vacancy does not, by itself, permit retrospective promotion or notional financial benefits, particularly after superannuation, where the applicable service rule requires assumption of the duties and responsibilities of the higher post. These authorities and principles laid down requires the Court to identify a source in the governing rules or instructions, or exceptional facts establishing an actual wrongful denial, before granting any anterior service consequence.

23. The other side of the principle is illustrated in judgements of Major General H.M. Singh, VSM (supra). In those cases the Hon’ble Supreme Court of India has held that when there was an available vacancy, the Government was admittedly desirous of filling it, the officer was the senior-most eligible officer, and the Selection Board ultimately found him suitable even though the promotional process was delayed until two days before his retirement even in those exceptional circumstances, the Supreme Court held that denial of consideration and promotion violated Articles 14 and 16 of the Constitution of India and moulded consequential relief while granting benefit to the Petitioner therein. The decision does not create a general vacancy-date rule but it recognises the power and duty to restore an employee where the employer intended to fill an identified vacancy and wrongfully withheld timely consideration, and suitability was no longer uncertain.

24. The recent decision in Dr. Indira Saranath v. Union of India(2026 SCC OnLine SC 943), is another instance where notional promotional and pensionary relief was granted because the promotional assessment suffered from demonstrable illegality and the employee had been deprived of fair consideration. The relief was founded upon the cumulative prejudice caused by uncommunicated service entries, destruction of relevant records during litigation and an assessment unsupported by the governing policy. It again confirms that notional relief is corrective and fact-sensitive; it is not an automatic incident of an old vacancy.

25. The present case falls on the corrective side of this line, but only for reasons peculiar to its record. The Government did not merely fail to fill a vacancy. It initiated the process in 2018. The Petitioners stood in the common seniority list. The Commission itself sought an explanation as to why officers at serial Nos. 4 to 7 were not being considered. The Government consciously excluded them because it then maintained that they were outside the Secretariat cadre and in a lower pay scale. That very premise was subsequently displaced by the judgment of this Court and, more decisively, by the Government's own order absorbing them against the Secretariat cadre from June 2010 with all consequential benefits.

26. The earlier judgment did not grant promotion and cannot be enlarged into one. It decided pay parity. The present claim nevertheless arises from the legal consequence of the subsequent Government order. The expression 'with all consequential benefits' does not automatically promote the Petitioners. It does, however, oblige the Government to revisit those service consequences which had earlier been denied solely because of the cadre status now retrospectively recognised. Any other interpretation would make the retrospective date of absorption ineffective for every purpose except nomenclature.

27. Reliance placed by the Petitioners on paragraph 18.2 of the DPC guidelines is also worth consideration, it excludes a person who acquires eligibility after the original meeting. It does not exclude one whose antecedent cadre status is later recognised with retrospective effect. The distinction is between acquiring the required service after the relevant date and a later formal recognition that the service already rendered counted in the prescribed cadre. The Petitioners completed five years from June 2010 in June 2015. The 2025 DPC itself records these dates and treats them as eligible for the vacancy years 2017 and 2019. The State cannot, in the face of its own order and its own DPC record, contend that they became eligible only in 2023.

28. Perusal of paragraph 18.1 permits a review DPC where eligible persons were omitted by discarding material facts as being not taken into consideration, or a grave procedural error occurred. Its illustrations are expressly non-exhaustive. The original DPC cannot be faulted for failing to anticipate the 2023 order. But once the Government gave retrospective operation to the absorption, the exclusion based on absence of cadre membership became a material error requiring correction. The need for review of the 2018 process arises not because that DPC acted mala fide, but because the legal and factual foundation on which the Petitioners were omitted has been retrospectively altered by the State itself. Since no DPC was held for the vacancy of 2019, that vacancy requires a separate year-wise corrective DPC rather than a review of a non-existent meeting.

29. We must observe at the inception that the State's decision to fill only two vacancies in 2018 does not answer the Petition. Ordinarily, the Government may decide whether and when to fill a vacancy. Here, however, the contemporaneous record shows that the proposal was restricted because the Government regarded only two officers as eligible and excluded the remaining four. In any event, the Government subsequently decided to fill the unfilled 2017 vacancy and the 2019 vacancy and placed both before the DPC in 2025. The Court is not compelling it to fill posts which it has chosen to leave vacant.

30. In the present fact of the Petition, the 2025 DPC is highly relevant but must be understood accurately. It was not convened as a review DPC or as the annual DPC for 2019. It considered the then available APAR dossiers and recommended promotion with immediate effect. Its recommendation cannot therefore, by itself, be converted into a retrospective promotion order. At the same time, it removes two uncertainties. It establishes that the Government treated the Petitioners as eligible from June 2010, and it records that both were fit when considered in their inter se order against the identified vacancy years. A limited review of the 2018 process and a separate year-wise exercise for 2019 are still required so that the proper field, eligibility and service material are reconstructed for each year.

31. The objection of non-joinder is without substance. The Petitioners accept the seniority and promotions of Shri Abhyankar and Smt. Volvoikar and do not challenge their promotions. Neither Petitioners are seeking reversion, alteration of their promotional dates or reduction of their seniority. The review now directed will concern the third unfilled vacancy of 2017 and the vacancy of 2019. No effective order is being made against the two officers promoted in 2018.

32. The objection of delay also fails. Although the Petitioners knew that they were not considered in 2018, their cadre status was then disputed and Writ Petition No. 809 of 2015 was pending. The decisive judgment came in July 2022 and the retrospective absorption order in April 2023. The Government convened the DPC in February 2025 and promoted the Petitioners prospectively on 28 February 2025. The adverse consequence became immediate when the Government thereafter proceeded to deputation and direct recruitment for the posts of Under Secretary. The Petition filed in November 2025 cannot, in this sequence and in the absence of intervening third-party rights in the disputed vacancies, be rejected as stale or delayed as contended by the Respondents. The Petitioners will nevertheless receive no arrears for the anterior period.

33. We now turn to the expression 'five years' regular service' in the Recruitment Rules for Under Secretary. In Union of India v. K.B. Rajoria((2000) 3 SCC 562), the Supreme Court explained that 'regular service in the grade' does not mean actual physical service. The adjective 'regular' describes the nature of the appointment, in contradistinction to an ad hoc, stopgap or fortuitous appointment. The decision also counted notional service for further promotion in the context of the governing instructions and a note protecting a senior when a junior had completed the qualifying service.

34. The latter feature must not be overlooked. Paragraph 18.4.3 of the guidelines before us similarly deals with a superseded officer whose junior has been promoted. Shri Abhyankar and Smt. Volvoikar were senior, not junior, to the Petitioners. Paragraph 18.4.3 therefore does not directly confer the claimed benefit upon them. Nor does the law laid down in case of K.B. Rajoria (supra) lay down that every notional period must invariably be counted. What it authoritatively establishes for the present controversy is that the words 'regular service' do not, as a matter of language, insist upon continuous physical discharge of the duties of the post. Whether notional service counts must depend upon the rules, the nature of the appointment and the legal basis of the corrective order.

35. In the case of Union of India v. M. Bhaskar, (supra) relied upon by the Respondent Advocate, it is distinguishable for the reason noticed in the case of K.B. Rajoria (supra), itself. The relevant condition in M. Bhaskar (supra) required two years' experience in Grade II. Experience ordinarily requires actual work. The Rules before us do not prescribe five years' experience for promotion. They prescribe five years' regular service. Significantly, the same rule-making authority has used the word 'experience' while prescribing qualifications for direct recruitment. The two expressions cannot be treated as interchangeable.

36. Furthermore, case of P.N. Premachandran (supra), turned upon different service rules. The concerned officers had actually officiated in the higher posts and Rule 39 of the Kerala Rules furnished a specific source for retrospective regularisation. It cannot be read as authorising retrospective promotion whenever a DPC is delayed. It nevertheless supports the narrower proposition that an employee should not suffer solely because the administration failed to convene the prescribed process, where the governing rules permit a corrective exercise and no competing right is prejudiced.

37. The State suggested during the hearing that actual service as Superintendent is essential because the duties of that post furnish necessary experience for functioning as Under Secretary. Such a policy may be legitimate, but the statutory Rules do not use the word experience. The affidavit also does not identify the distinct duties which make five years' physical performance indispensable. The Court cannot add the word 'actual' to the prescribed expression 'regular service', particularly when the same Rules consciously use different language elsewhere.

38. It follows that, if a review DPC finds that either Petitioner was entitled to regular promotion from an anterior date by way of correction of her wrongful omission, that notional service cannot be rejected merely because Petitioners did not physically occupy the chair throughout the period. Such an appointment would be regular, not ad hoc or fortuitous. This conclusion does not antedate the promotion by judicial declaration. It determines only the legal character of the service that will follow if the competent review DPC recommends corrective promotion and the appointing authority gives effect to it.

39. The effective dates must also be dealt with carefully. For Petitioner No. 1, 19 July 2018 is not merely the date on which a vacancy existed. It is the date on which the original promotional exercise was implemented for the two officers considered by the DPC of 11 July 2018. If the review DPC, reconstructing that exercise, finds Petitioner No. 1 fit for the unfilled third vacancy, the corrective promotion may lawfully take effect notionally from 19 July 2018. That date is tied to an actual selection and promotion order and does not disturb an incumbent.

40. The case of Petitioner No. 2 stands differently. The mere occurrence of the vacancy on 3 July 2019 cannot automatically be treated as the date of promotion. No DPC met on that date. The year-wise Committee must determine, from the annual DPC calendar, the applicable instructions and the service material relevant to that vacancy year, the date on which Petitioner No. 2’s promotion would in the ordinary course have taken effect had the prescribed annual exercise been held. The Government cannot take advantage of its failure to convene that exercise, but the Court should not select a date without the administrative record and the recommendation of the competent Committee.

41. This limited remand does not reopen the Petitioners' cadre eligibility. That issue stands concluded by the Order of 12 April 2023 and the Government's own treatment of their regular service in the 2025 DPC. Nor may the review be defeated by relying upon their lower pay scale or non-membership of the Secretariat cadre, which were the very grounds retrospectively displaced. The review will be confined to reconstructing the proper field and assessing suitability on the material legally relevant to the respective years.

42. If, upon review, the Petitioners are found fit and receive notional regular promotion from legally determined anterior dates, the period from those dates must be counted for deciding whether they possess five years' regular service as Superintendents. They will then have a right to consideration for promotion as Under Secretary under the first prescribed mode. They do not have a right to appointment by this Court. Suitability, comparative assessment and all conditions other than the objection of want of actual physical service must be examined by the competent DPC.

43. The sequence in the Recruitment Rules is material. Deputation may be resorted to only upon failure of promotion, and direct recruitment upon failure of both promotion and deputation. The Government proceeded to the alternate modes because it regarded the Petitioners as lacking five years' actual service. Since that interpretation is unsustainable and a review of their anterior promotional claim is required, the sealed-cover results and the advertisements cannot be acted upon until the corrective and promotional exercises are completed.

44. No arrears of salary will follow for a period during which the Petitioners did not discharge the duties of Superintendent. In the case of Government of West Bengal v. Dr. Amal Satpathi (supra) cautions against awarding financial benefits of a higher post without assumption of its responsibilities, particularly in the absence of an enabling rule. The appropriate relief here is confined to notional seniority, notional pay fixation for future and pensionary purposes, and the counting of qualifying service for further promotion. This also balances the correction of the State's error with the principle of no work, no pay.

45. The Petition therefore succeeds in part. The prospective promotion Order dated 28 February 2025 cannot be treated as finally determining the Petitioners' entitlement to corrective dates. A limited review DPC for the 2018 process and a year-wise DPC for the 2019 vacancy must be convened. The existing promotions of the two senior officers will remain untouched, and the alternate recruitment processes will remain in abeyance only for the period necessary to complete the statutory promotional exercise.

                    ORDER

                    I. The Writ Petition is partly allowed in the following terms.

                    II. Respondent Nos. 1 and 2, in consultation with Respondent No. 3, shall convene (a) a limited review Departmental Promotion Committee in respect of the unfilled third vacancy of Superintendent (Legal/Drafting) forming part of the promotional process of 2018, and (b) a separate year-wise Departmental Promotion Committee in respect of the vacancy which arose in 2019. Both exercises shall be completed within eight weeks from today.

                    III. For that review, the Petitioners shall be treated as having been regularly absorbed in the Secretariat cadre of Legal Assistants from 11 June 2010 and 14 June 2010 respectively and as having completed five years' regular service in June 2015. Their cases shall not be excluded on the ground of the lower pay scale then drawn by them, want of cadre membership, or that the Writ Petition No. 809 of 2015 was pending at the relevant time.

                    IV. The Committees shall reconstruct the respective fields of consideration and assess the Petitioners on the service material legally relevant to the concerned years, in accordance with the applicable DPC guidelines. The promotions of Shri Narayan K. Abhyankar and Smt. Sonia S. Volvoikar dated 19 July 2018 shall not be reopened or disturbed.

                    V. If Petitioner No. 1 is found fit against the unfilled third vacancy considered in the process of 2018, she shall be granted notional regular promotion as Superintendent (Legal/Drafting) with effect from 19 July 2018. If Petitioner No. 2 is found fit against the vacancy of 2019, the year-wise DPC shall identify, in accordance with the annual DPC instructions and the record, the date on which her promotion would in the ordinary course have taken effect had the prescribed exercise been convened, and the appointing authority shall grant her notional regular promotion from that date.

                    VI. Any promotion granted under direction (V) above, shall carry consequential notional seniority and notional fixation of pay for future, pensionary and promotional purposes. The Petitioners shall not be entitled to arrears of salary for the period during which they did not actually discharge the duties of Superintendent (Legal/Drafting).

                    VII. For determining eligibility for promotion as Under Secretary under the Recruitment Rules dated 12 March 2008, the period of notional regular promotion granted pursuant to direction V shall be counted as regular service in the grade. Such service shall not be excluded merely because the Petitioners did not physically discharge the duties of Superintendent during the notional period.

                    VIII. Within four weeks after giving effect to the review DPC, respondent Nos. 1 and 2 shall place the cases of every petitioner who completes the prescribed five years' regular service before the competent DPC for consideration for promotion against the available post or posts of Under Secretary, in accordance with the Recruitment Rules and on her own merits.

                    IX. Until the exercises directed above are completed and their results are acted upon, the respondents shall not open or act upon the results retained in sealed cover pursuant to the interim orders of this Court, nor make an appointment pursuant to Advertisement No. 9A of 2025 or Advertisement No. 10 of 2025 to the posts in question.

                    X. If either petitioner is found unfit in the review, or is thereafter found unfit or otherwise ineligible for promotion as Under Secretary for reasons independent of the length of notional regular service, it will be open to the respondents to proceed in accordance with the alternate modes prescribed in the Recruitment Rules.

                    XI. The Order dated 28 February 2025 shall stand modified to the extent necessary to give effect to the review and the consequential directions made above.

46. Rule is made absolute in the aforesaid terms. There shall be no order as to costs.