Person Has No Right To Be Promoted But Has Fundamental Right To Be Considered For Promotion: Calcutta High Court

Background Facts

Dr. Tapas Kumar Mandal (Petitioner) was serving on the post of Associate Professor at Saha Institute of Nuclear Physics (Respondent) and superannuated on 30.06.2010. The Petitioner was considered for promotion to the post of Professor but the Petitioner superannuated before the promotion was finalized. A disciplinary proceeding was initiated against the Petitioner in 2005 while he was in service which continued even after his retirement. However, the Petitioner filed a writ petition against the Respondent and the Hon'ble Calcutta High Court in 2017 directed the disciplinary authority drop the disciplinary proceedings and grant the admissible service benefits denied to the Petitioner. The High Court further directed the Respondent that if the Governing Council of the Respondent grants promotion to the Petitioner, all arrears of salary shall be paid to him.

In 2018, the Governing Council of the Respondent denied promotion to the Petitioner. The Selection Committee had recommended the Petitioner for promotion in 2008, however, the Petitioner was not promoted due to poor academic performance and not enough scientific progress. Thus, the Petitioner filed the writ petition against the denial of his promotion by the Respondent.

It was contended by the Petitioner that there is no provision for review of the decision of recommending him for a promotion. Further, the Respondent had accepted the recommendation of similarly placed employee but the recommendation of the Petitioner was rejected due to the disciplinary proceedings against him.

On the other hand, it was contended by the Respondent that recommendation of the Selection Committee is not final. The recommendation needs to necessarily be placed before the Governing Council for approval. Till the Governing Council approves the recommendation of the Selection Committee, the promotion cannot be made.

Findings of the Court

The court observed that that as per the norms and procedures for promotion of scientific and technical employees of the Respondent, the rationale behind a promotion was to recognise merit of a deserving candidate who can get adequate incentive to 'carry on' creative fundamental research or constructive developmental work. The court observed that the expression 'carry on' suggests that the employee is still in service and he can continue with his work. Therefore, promotion of an employee of the Respondent is restricted to a candidate who is 'physically present in the Institute'

The court further observed that promotion is a normal incidence of service. A person has no right to be promoted but he has a fundamental right to be considered for promotion. Promotion is given to provide incentive to an employee to excel in his work.

The court further observed that:

“Promotion is granted to give an incentive to the employee to improve his/her standard so that the experience of the employee may be utilized by the employer for betterment and advancement of the institution”

The court however held that in the present case, the Petitioner is not in a position to deliver in the higher post as he has already retired from the service.

The court also held that it is the sole and exclusive decision of the employer whether to promote the employee or not and the decision cannot be interfered in a casual manner.

With the aforesaid observations, the Writ Petition was dismissed.

Case No.- WPA 24009 of 2019

Case Name- Dr. Tapas Kumar Mandal Vs. UOI & Ors

Counsel for the Petitioner- Mr. Kallol Basu, Adv. Mr. Nilanjan Pal, Adv

Counsel for Respondent- Mr. Om Narayan Rai, Adv, Mr. Rajdeep Mantha, Adv, Mr. A.K. Dasgupta, Adv.

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