Promotion Effective From Date Of Grant, Not When Vacancy Is Created: Supreme Court
While dealing with an appeal filed by the Bihar State Electricity Board against an employee who sought retrospective promotion, the Supreme Court recently reiterated that a promotion shall be effective from the date on which it is granted and not from the date when a vacancy occurs on the subject post or when the post itself is created.
"No doubt, a right to be considered for promotion has been treated by courts not just as a statutory right but as a fundamental right, at the same time, there is no fundamental right to promotion itself...assuming that there was a vacancy to the subject posts, it would not have automatically created a valuable right in favour of the respondent for claiming retrospective promotion to the next higher post. It is only when an actual vacancy arose that the respondent was granted the benefit of accelerated promotion and that too on going through the prescribed process", observed the bench of Justices Hima Kohli and Ahsanuddin Amanullah.
The Court noted that it was neither a case of respondent-employee being deprived of promotion to the next higher post, nor one where the appellant-employer's action could be said to have been guided by any malafides or colorable exercise of power. Rather, the action of the employer-Board was purely guided by administrative exigencies.
Accordingly, the Court allowed the appeal and set aside the High Court judgment which held against the Board.
Factual Background
The respondent, who was physically challenged and belonged to the Scheduled Caste category, was engaged by the appellant-Board in 1976 on the post of Lower Division Assistant. Over the years, he was promoted on multiple occasions.
On 26th December, 1991, the Board passed a Resolution determining the Kal Awadhi for Scheduled Caste/Scheduled Tribe and General Category candidates for promotion from one grade to another grade for various categories of employees.
In 1995, the respondent was granted accelerated promotion to the post of Under Secretary. Eight years later, he was granted accelerated promotion to the post of Joint Secretary vide Notification dated 5th March, 2003. However, in December, 2003, the Board passed a Resolution deciding to reduce the number of sanctioned posts of Joint Secretary from 6 to 3 at its Patna headquarters. Statedly, this was on account of the bifurcation of the erstwhile State of Bihar into the present State of Bihar and Jharkhand.
Aggrieved by the notification of 5th March, 2003, the respondent filed a writ petition before the Patna High Court. He averred that though he was promoted on the post of Joint Secretary on 5th March, 2003, the said promotion ought to be reckoned from July, 1997, when the post had actually fallen vacant. This plea was turned down by the learned Single Judge.
Subsequently, the respondent moved an intra court appeal, which was allowed. The High Court directed the appellant to promote the respondent to the post of Joint Secretary with effect from 29th July, 1997. As the respondent had superannuated by the time the judgment was delivered, the appellant-Board was directed to grant him all benefits that would have accrued to him on such a post with retrospective effect.
Against the High Court decision, the appellant-Board moved the Supreme Court.
Submissions of parties
The appellant-Board submitted that the date on which the respondent completed his Kal Awadhi for promotion from the post of Under Secretary to Joint Secretary (29th July, 1997), there was no vacancy on the post of Joint Secretary till the actual date of his promotion (5th March, 2003). It was further argued that the Kal Awadhi prescribed was only an eligibility criteria, upon completion of which, the incumbent employee became eligible for being considered for promotion, but there was no compulsion to promote immediately.
The respondent, on the other hand, claimed that as on 29th July, 1997, he had completed the Kal Awadhi in terms of the Board's Resolution dated 26th December, 1991. He also highlighted that he fell under the reserved category, was physically challenged, and was the senior most member in the cadre of Under Secretary on the relevant date i.e., 29th July, 1997.
Court Observations
After going through judicial precedents on the subject, the Court noted that the right to be considered for promotion is a part of "equality of opportunity", subject to satisfaction of eligibility criteria and applicable rules.
"The spirit behind elevating the right for being considered for promotion to a fundamental right is enshrined in the principle of “equality of opportunity” in relation to matters of employment and appointment to a position under the State. Once employed, the employees are entitled for being considered for promotion to the next higher post subject to their satisfying the eligibility criteria, as per the applicable rules. Failure to consider an employee for promotion even after satisfying the eligibility criteria would violate her fundamental right".
It drew a distinction between the stage of considering an employee for promotion and that of recognizing the said right as a vested right for promotion as follows:
"...a right to be considered for promotion being a facet of the right to equal opportunity in employment and appointment, would have to be treated as a fundamental right guaranteed under Articles 14 and 16(1) of the Constitution of India but such a right cannot translate into a vested right of the employee for being necessarily promoted to the promotional post, unless the rules expressly provide for such a situation."
Insofar as it was the respondent's case that he was automatically entitled to promotion as soon as he completed the Kal Awadhi, the court disagreed.
"Resolution dated 26th December, 1991 prescribed a minimum qualifying service before considering the case of an employee for promotion from one grade to another...But that is not to state that on completion of the duration of Kal Awadhi for promotion, an employee would automatically be entitled for promotion to the next higher post. No employee can lay a claim for being promoted to the next higher post merely on completing the minimum qualifying service", it opined.
On facts, the court noted that in a span of 10 years and 5 months, the respondent was granted five promotions by the appellant-Board. It added:
"The Resolution of the Board dated 26th December, 1991 for fixing the Kal Awadhi was only directory in nature and cannot be treated as statutory for the respondent to have claimed an entitlement to promotion reckoned from 29th July, 1997, instead of 5th March, 2003. Such a view is in consonance with the settled legal position and cannot be faulted."
Case Title: Bihar State Electricity Board and Others v. Dharamdeo Das, CIVIL APPEAL NO. 6977 OF 2015
Citation : 2024 LiveLaw (SC) 506