Judicial Analysis Court Copy Headnote Facts Arguments Court observation

SUPREME COURT OF INDIA
HIMA KOHLI, AHSANUDDIN AMANULLAH, JJ.
Bihar State Electricity Board And Others – Appellants
Versus
Dharamdeo Das – Respondent
Civil Appeal No. 6977 Of 2015
Decided On : 23-07-2024

Advocates appeared:
For the Appellant(s) : Mr. Navin Prakash, AOR
For the Respondent(s): Mr. Amit Pawan, AOR

IMPORTANT POINTS
(1) Promotion – Promotion is effective from the date it is granted and not from the date when vacancy occurs on subject post or when the post itself is created – There is no fundamental right to promotion itself.
(2) Promotion – No employee can lay claim for being promoted to next higher post merely on completing minimum qualifying service.

Headnote:
(A) Service Law – Promotion – Promotion is effective from the date it is granted and not from the date when vacancy occurs on subject post or when the post itself is created – 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 – Right to be considered for promotion being a facet of 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 Constitution of India but such a right cannot translate into a vested right of employee for being necessarily promoted to promotional post, unless rules expressly provide for such a situation – Seniority can neither be reckoned from the date when a vacancy arises, nor can it be granted retrospectively unless service rules specifically provide for such a situation – Retrospective seniority cannot be granted to an employee from the date when he was not even borne on the cadre. (Paras 18, 22 and 23)
(B) Service Law – Promotion – Direction to give promotion to post of Joint Secretary with retrospective effect – Resolution dated 26th December, 1991 prescribed a minimum qualifying service before considering case of an employee for promotion from one grade to another – Underlying aim of said resolution is to ensure that an employee gathers sufficient experience as may be required before he can be considered for promotion to next higher post – No employee can lay claim for being promoted to next higher post merely on completing minimum qualifying service – Even assuming that there was a vacancy to subject posts, it would not have automatically created a valuable right in favour of respondent for claiming retrospective promotion to next higher post – It is only when actual vacancy arose that respondent was granted benefit of accelerated promotion and that too on going through prescribed process – Merely because respondent had completed Kal Awadhi for promotion from post of Under Secretary to Joint Secretary, would not necessarily entitle him for appointment from the date post fell vacant – This is not a case where respondent has been deprived of promotion to next higher post, nor is it a case where action of Board was guided by any malafides or colourable exercise of power – Resolution of Board dated 26th December, 1991 for fixing Kal Awadhi was only directory in nature and cannot be treated as statutory for respondent to have claimed entitlement to promotion from a back date – Impugned order set aside and order passed by Single Judge restored. (Paras 27, 29, 30 and 31)
Facts of the case:
As per impugned judgement dated 20th October, 2011, passed by Division Bench of High Court of Judicature at Patna in a Letters Patent Appeal, appellants have been directed to promote respondent to post of Joint Secretary with effect from 29th July, 1997.
Findings of Court:
Records reveal that there was no vacancy to post of Under Secretary in appellant-Board on said post being reduced from six to three. This step was taken by Board due to administrative exigencies.
Result : Appeal allowed.

JUDGMENT :

Hima Kohli, J.

1. The appellant – Bihar State Electricity Board¹[For short “Board”], has approached this Court assailing an order dated 20th October, 2011, passed by the Division Bench of the High Court of Judicature at Patna in a Letters Patent Appeal²[LPA No. 41 of 2008], filed by the respondent against an order dated 3rd October, 2007, passed by the learned Single Judge in a writ petition³[CWJC No. 9611 of 2005], filed by the respondent.

2. The respondent had averred in the writ petition 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. However, the respondent succeeded in the intra court appeal preferred by him and as per the impugned judgement, the appellants have been directed to promote the respondent to the post of Joint Secretary with effect from 29th July, 1997. By the time the impugned judgement was delivered, the respondent having superannuated, the appellants were directed to grant him all the benefits that would have accrued to him on such a post with retrospective effect.

BACKGROUND

3. The relevant facts of the case are that the respondent, who was physically challenged and belonged to the Scheduled Caste category, was appointed on a temporary basis on the post of Lower Division Assistant vide letter dated 14th May, 1976. He joined the said post on 1st June, 1976. Vide letter dated 9th June, 1982 issued by the Board, the respondent was promoted to the post of Upper Division Assistant on an officiating basis.

4. Vide Resolution dated 12th August, 1983, the Board decided that out of six sanctioned posts of Joint Secretary for the Board Secretariat, two shall be manned by members of the Engineering Service of the Board, two by deputationists or Government Servants of appropriate rank and two by Ministerial Officers of the Board Secretariat.

5. Vide Office order dated 17th September, 1992, the respondent was granted promotion as an Upper Division Assistant on an officiating basis with effect from 23rd July, 1982. By the Board’s Notification dated 17th September, 1992, the respondent was also granted accelerated promotion to the post of Section Officer with effect from 23rd July, 1982.

6. The Board issued a Notification dated 30th June, 1995, granting the respondent accelerated promotion on the post of Section Officer (Senior Grade) with effect from 11th December, 1986. Again, Notification dated 1st July, 1995 was issued by the Board granting him accelerated promotion for the post of Administrative Officer on a notional basis with effect from 25th July, 1989.

7. 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. The said Resolution fixed the Kal Awadhi for promotion from the post of Under Secretary to Joint Secretary in the General Administrative Cadre (Board Headquarter) as three years. It also stated that “the Kal Awadhi for candidates belonging to the Scheduled Castes and Scheduled Tribes for promotion to the next higher grade will be one year less than what has been mentioned for candidates not belonging to Scheduled Caste and Scheduled Tribes”.

8. Vide Notification dated 9th July, 1995 the respondent was granted accelerated promotion to the post of Under Secretary and finally, he was granted accelerated promotion to the post of Joint Secretary, vide Notification dated 5th March, 2003.

9. On 6/8th December, 2003, the Board passed a Resolution deciding to reduce the number of sanctioned posts of Joint Secretary from six to three at its headquarters at Patna and accordingly, issued an Office Order dated 24th December, 2003 reducing the six sanctioned posts of Joint Secretary to three. One post was to be manned by an Officer from the Bihar Administr