Mere Existence Of Vacancy Per Se Will Not Create Right In Favour Of Employee For Retrospective Promotion: Supreme Court

The Supreme Court observed that mere existence of vacancy per se will not create a right in favour of an employee for retrospective promotion.

The promotion to a post should only be granted from the date of promotion and not from the date on which vacancy has arisen, the bench comprising Justices Sanjay Kishan Kaul and MM Sundresh observed.

M.S. Poonam, who was holding the post of Junior Administrative Grade-II ( "JAG-II") officers, retired in the said capacity voluntarily in the year 2010. Suresh Gupta was promoted on ad hoc basis to Junior Administrative Grade-I ( "JAG-I") and regularized after undergoing a selection process against the vacancies in tune with Rule 4 of the National Capital Territory of Delhi, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli (Civil Service) Rules, 2003. Allowing the writ petitions filed by them, the High Court held that MS Poonam is entitled to relief in terms of the Circular No.AB.14017/47/2011-EST (DR) dated 01.08.2012 issued by the Department of Personnel and Training (DoPT), which facilitates a retired officer who is otherwise eligible as on the due date to be considered for the benefit of "pay-upgradation". Regarding Suresh Gupta, the High Court observed that after keeping the officer without consideration for promotion for a long time, with the decision to grant promotion with effect from 01.07.2011, there is no justification for denying it from 01.10.2009.

Challenging the High Court judgment, the Union of India approached the Apex Court mainly contending that (1) a voluntary retiree cannot seek promotion as a matter of right sans governing rules; (2) a mere delay in consideration of the promotion would not create a vested right over a post that quantifies the maximum accommodation in terms of numbers, involving a process of suitability

Allowing the appeal (in MS Poonam case), the bench observed that the High Court  committed an error in relying upon a circular, which has got no application at all. It observed:

It is trite law that once an officer retires voluntarily, there is cessation of jural relationship resorting to a "golden handshake" between the employer and employee. Such a former employee cannot seek to agitate his past, as well as future rights, if any, sans the prescription of rules. This would include the enhanced pay scale. The Respondent in Civil Appeal No.517 of 2017 was rightly not considered in the DPC in 2012 since he was no longer in service at the relevant point of time.

Regarding Suresh Gupta's claim, the bench observed thus while allowing the appeal:

A mere existence of vacancy per se will not create a right in favour of an employee for retrospective promotion when the vacancies in the promotional post is specifically prescribed under the rules, which also mandate the clearance through a selection process. It is also to be borne in mind that when we deal with a case of promotion, there can never be a parity between two separate sets of rules. In other words, a right to promotion and subsequent benefits and seniority would arise only with respect to the rules governing the said promotion, and not a different set of rules which might apply to a promoted post facilitating further promotion which is governed by a different set of rules

Headnotes

Service Law - Promotion - A mere existence of vacancy per se will not create a right in favour of an employee for retrospective promotion when the vacancies in the promotional post is specifically prescribed under the rules, which also mandate the clearance through a selection process - There can never be a parity between two separate sets of rules - A right to promotion and subsequent benefits and seniority would arise only with respect to the rules governing the said promotion, and not a different set of rules which might apply to a promoted post facilitating further promotion which is governed by a different set of rules. (Para 18)

Service Law - Promotion to a post should only be granted from the date of promotion and not from the date on which vacancy has arisen. [Referred to Union of India v. KK Vadhera and Ors., 1989 Supp (2) SCC 625 and Ganga Vishan Gujrati and Ors. v. State of Rajasthan, (2019) 16 SCC 28 ] (Para 19-20)

Service Law - Differential pay scale along with a process of selection qua suitability fixing eligibility criteria are the factors to determine whether a particular post is the same as the other or a promotional one.

Interpretation Of Statutes - Service Law - When the rules are specific and clear, there is no need for interpretation which may lead to a case of judicial legislation. (Para 13)

Service Law - Voluntary Retirement - Once an officer retires voluntarily, there is cessation of jural relationship resorting to a "golden handshake" between the employer and employee. Such a former employee cannot seek to agitate his past, as well as future rights, if any, sans the prescription of rules. This would include the enhanced pay scale. (Para 16)

Case Details

Case : Union of India vs Manpreet Singh Poonam | CA 517-518  of 2017 | 8 Feb 2022

Citation: 2022 LiveLaw (SC) 254

Coram: Justices SK Kaul and MM Sundresh

Counsel: Adv Rekha Pandey for appellant, Adv Avnish Ahlawa for respondent