No Government Servant Can Claim Promotion As Their Right : Supreme Court

Recently, the Supreme Court observed that government employees cannot demand promotion as a matter of right and that the Court's intervention in promotion policies should only be limited when there is a violation of the equality principle under Article 16 of the Constitution. 

On May 17, the Court upheld the recommendations made by the High Court of Gujarat in 2023 for the promotion of Senior Civil Judges to the 65% promotion quota of District Judges on the basis of merit-cum-seniority principle. In ruling so, it was observed that since the Constitution doesn't prescribe a criterion for promotions, the government employees cannot expect promotions as their intrinsic right. The Court noted that policy of promotions is the main domain of the legislature or executive with a limited scope for judicial review. 

"81. However, in India, no government servant can claim promotion as their right because the Constitution does not prescribe criteria for filling seats in promotional posts. The Legislature or the executive may decide the method for filling vacancies to promotional posts based on the nature of employment and the functions that the candidate will be expected to discharge. The courts cannot sit in review to decide whether the policy adopted for promotion is suited to select the 'best candidates', unless on the limited ground where it violates the principle of equal opportunity under Article 16 of the Constitution."

In the instant case, the writ petitioners sought to declare the Select List dated 10.03.2023 issued by the High Court of Gujarat for the promotion of Senior Civil Judges to the Cadre of District Judge (65% quota) as being violative of Article 14 of the Constitution of India as well as Rule 5 of the Gujarat State Judicial Service Rules, 2005. Rule 5 requires that the 65% recruitment to the District Judge cadre be done through promotions amongst the Senior Civil Judges on the principle of merit-cum-seniority and passing a suitability test. 

The Court has also suggested that the Gujarat High Court may amend its Rules on the aspect of the suitability test in making it as elaborative as seen in the Uttar Pradesh Higher Judicial Service Rules, 1975. The key recommendations included having a Viva Voce as another testing component for the candidates, increasing the passing threshold under each existing component, considering the quality of judgements of the candidates from last two years instead of one year and including seniority within the test scoring while finalizing the merit list .

The Colonial Genesis Of Seniority-Based Promotions & Absence Of Right To Promotion Under Indian Constitution 

The Top Court dwelled into the concept of promotions as introduced since the times of British Raj to understand the intent behind introducing both seniority and merit as relevant factors in deciding promotions in public employment specifically. 

It was observed that the East India Company (EIC) used to promote its officials based on the duration of the services- that is seniority. The rule of promotion through seniority was then officially recognized in the Charter Act of 1793 and continued until 1861. 

On the advent of the Indian Civil Service Act (ICS) in 1861, promotions was then based on both seniority and merit, integrity, competence and ability. This method came to be known as the ' Seniority-cum-Merit' until India became independent in 1947. The notion of competitive examinations in the modern Civil Services in India was introduced in 1854 consequent to Lord Macaulay's Report of the Select Committee of British Parliament.

The said report intended to replace the "patronage-based system" of the EIC with permanent Civil Services based on competitive examinations. The idea was to prevent political influences or subjective bias in way of key hiring and promotional processes to eliminate unfairness in the administration. 

As stated, competitive examinations were “designed to protect career employees against improper political influences or personal favouritism in the recruiting, hiring, promotion, or dismissal processes, to ensure that personnel management is conducted without discrimination” 

In 1947, the First Pay Commission suggested using a mix of direct recruitment and promotions. It recommended seniority for roles requiring office experience and merit for higher positions. Later commissions in 1959 and 1969 also supported merit-based promotions alongside seniority. It was noted that the principle of seniority was views as a reflection of loyalty and reduced favoritism which should awarded with fair treatment. 

 "80. The principle of seniority as a parameter of selection for promotion was found to be derived from the belief that competence is related to experience and that it limits the scope of discretion and favouritism. There is always an additional assumption that long-serving employees have demonstrated loyalty to the employing organization and so are entitled to reciprocal treatment."

The Court then observed that in the Indian Constitutional context, the government employees had no right to demand promotion as a matter of right. Since the constitution does not specify any set criteria for promotions, the said process is left open to the government or the legislature and varies depending upon the nature of the designation or job for which rules on promotion may be determined. It was held that the Courts can restrictively intervene only when a promotion policy is violative of the equality principle under Article 16 of the Constitution.  

" 81. However, in India, no government servant can claim promotion as their right because the Constitution does not prescribe criteria for filling seats in promotional posts. The Legislature or the executive may decide the method for filling vacancies to promotional posts based on the nature of employment and the functions that the candidate will be expected to discharge. The courts cannot sit in review to decide whether the policy adopted for promotion is suited to select the 'best candidates', unless on the limited ground where it violates the principle of equal opportunity under Article 16 of the Constitution."

Case Title : Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. | Writ Petition (Civil) No. 432 of 2023

Citation : 2024 LiveLaw (SC) 387

Click here to read the judgment