1. Government employee recommended for promotion before superannuation but approved after retirement — dispute over entitlement to notional financial benefits under West Bengal Service Rules. (Para 3 , 4 , 5 , 6 )
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2024 Supreme(SC) 1093
SUPREME COURT OF INDIA
Pamidighantam Sri Narasimha, Sandeep Mehta, JJ.
Government of West Bengal & Ors. – Appellants
Versus
Dr. Amal Satpathi & Ors. – Respondents
Civil Appeal No(s). 13187 of 2024 (Arising out of SLP(Civil) No(s). of 2024 (Diary No. 43488 of 2023)
Decided On : 27-11-2024
Advocates Appeared:
For the Petitioner(s): Mr. Soumya Chakraborty, Sr. Adv. Ms. Astha Sharma, AOR Ms. Anju Thomas, Adv. Mr. Himanshu Chakravarty, Adv.
For the Respondent(s): M/S. S. S. Rana & Co., AOR Mr. Kunal Chatterji, AOR Ms. Maitrayee Banerjee, Adv. Mr. Rohit Bansal, Adv.
For the Petitioner(s): Mr. Soumya Chakraborty, Sr. Adv. Ms. Astha Sharma, AOR Ms. Anju Thomas, Adv. Mr. Himanshu Chakravarty, Adv.
For the Respondent(s): M/S. S. S. Rana & Co., AOR Mr. Kunal Chatterji, AOR Ms. Maitrayee Banerjee, Adv. Mr. Rohit Bansal, Adv.
IMPORTANT POINTS
(1) Promotion – Promotion only becomes effective upon assumption of duties on promotional post and not on the date of occurrence of vacancy or the date of recommendation – Right to be considered for promotion as not only a statutory right but also a fundamental right but there is no fundamental right to promotion itself.
(2) Promotion cannot be retrospectively granted after retirement, as it requires actual assumption of duties and responsibilities of promotional post.
Headnote:
Service Law – Promotion – Notional financial benefits – Promotion only becomes effective upon assumption of duties on promotional post and not on the date of occurrence of vacancy or the date of recommendation – While Courts have recognized right to be considered for promotion as not only a statutory right but also a fundamental right, there is no fundamental right to promotion itself – Promotion cannot be retrospectively granted after retirement, as it requires actual assumption of duties and responsibilities of promotional post – Considering that respondent No. 1 superannuated before his promotion was effectuated, he is not entitled to retrospective financial benefits associated to promotional post of Chief Scientific Officer, as he did not serve in that capacity – Impugned Judgments set aside. [Rule 54(1)(a) of West Bengal Service Rules, 1971 ] (Paras 18, 19, 21)
Facts of the case:
Primary question that arises for consideration in present appeal is whether respondent No.1, who was recommended for promotion before his retirement but did not receive actual promotion to higher post due to administrative delays, is entitled to notional financial benefits of promotional post after his retirement?
Findings of Court:
Judgment dated 1st February, 2023 passed by High Court of Calcutta and judgment dated 26th June, 2019 passed by Tribunal are unsustainable in eyes of law and are hereby reversed and set aside.
Result : Appeal allowed.
Legal Category Hierarchy
Table of Contents
2. Whether notional financial benefits are admissible without assumption of charge — conflict between administrative delay and statutory requirements for higher pay. (Para 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 )
3. Rule 54(1)(a) mandates assumption of duties for higher pay — promotion is effective from the date granted, not the date of vacancy. (Para 15 , 16 , 17 , 18 , 19 , 20 )
4. Retrospective promotion and associated financial benefits are impermissible after retirement without actual assumption of duties or a specific enabling provision. (Para 18 , 21 )
5. Appeal allowed — judgments of the High Court and Tribunal reversed and set aside. (Para 22 , 23 , 24 )
6. Is there a fundamental right to promotion under the Constitution of India?
No. While the right to be considered for promotion is a fundamental right under Articles 14 and 16(1), there is no fundamental right to the promotion itself. (Para 19 , 21 )
7. When does a promotion generally become effective?
Promotion is effective from the date it is granted, rather than from the date a vacancy arises or the post is created. (Para 19 )
8. Can an employee be granted retrospective promotion or financial benefits after superannuation?
No, retrospective promotion cannot be granted after retirement as it requires the actual assumption of duties and responsibilities of the promotional post, unless a specific enabling provision exists. (Para 18 , 20 , 21 )
JUDGMENT
Mehta, J.
1. Delay condoned.
2. Leave granted.
3. The present appeal has been filed by the Government of West Bengal1[Hereinafter being referred to as “appellant No. 1”.] and its components, challenging the judgment dated 1st February, 20232[Hereinafter being referred to as “Impugned judgment”.] passed by the High Court at Calcutta, in WPST No. 157 of 2019. The High Court vide impugned judgment upheld the order of the West Bengal Administrative Tribunal3[Hereinafter being referred to as “Tribunal”.], which directed that respondent No. 1, Dr. Amal Satpathi, though not entitled to retrospective promotion after his superannuation, should be awarded notional financial benefits for the promotional post of Chief Scientific Officer as of his retirement date i.e., 31st December, 2016. The appellants are aggrieved by this direction, contending that no financial benefits, even on a notional basis, are admissible to respondent No. 1 who never assumed charge of the promotional post.
Brief Facts: -
4. Respondent No.1, Dr. Amal Satpathi, was promoted to the post of Principal Scientific Officer on an officiating basis on 24th March, 2008. On 6th January, 2016, following an amendment to the relevant Recruitment Rules, respondent No.1 became eligible for promotion to the post of Chief Scientific Officer. The Department4[Science and Technology Department] initiated the promotional process by approaching the Public Service Commission5[In short, ‘PSC’] on 13th April, 2016. The PSC, vide its minutes dated 29th December, 2016, recommended the name of respondent No.1 for the promotion to the said post. However, the Department received the final approval for his promotion on 4th January, 2017, but by that time, respondent No.1 had already superannuated on 31st December, 2016. Respondent No.1 made a representation to the Department to give effect to his promotion. The matter was then referred to the Finance Department, Government of West Bengal. The reply of the Finance Department is extracted below: -
“In terms of rule 54(1)(a) of W.B.S.R. Part-I, a Govt. employee shall not draw pay higher than that of his permanent post unless the officiating appointment involves the assumption of duties and responsibilities of greater importance.
In the instant case Dr. Amal Satpathi could not join to the promotional post within his service tenure. He retired on superannuation on 31.12.2016. As a result officiation to the higher post with greater responsibilities and importance does not arise.
As such appointment on promotion after retirement with retrospective effect can not be awarded for Gr.-'A' posts.
We are, therefore, of the same opinion stated by F.A., dated 16.2.2017.”
5. Aggrieved by the denial of the benefits flowing from promotion, respondent No. 1 approached the Tribunal by filing O.A. No. 555 of 2017. The Tribunal vide order dated 26th June, 2019 observed that, as per Rule 54(1)(a) of the WEST BENGAL SERVICE RULES , Part-I of 19716[Hereinafter, being referred to as ‘ WEST BENGAL SERVICE RULES ’], promotion cannot be granted retrospectively after the retirement of a Government employee. However, the Tribunal acknowledged that respondent No. 1 had been duly recommended for promotion before his superannuation, which was only delayed due to procedural obstructions beyond his control. Therefore, while actual promotion was not acceded to, the Tribunal directed that respondent No.1 should be granted notional financial benefits of the promotional post with effect from 31st December, 2016, to ensure pensionary benefits commensurate with the promotional post.
6. The appellants challenged this order before the High Court in WPST No. 157 of 2019. The High Court, vide judgment dated 1st February, 2023 dismissed the writ petition, concurring with the Tribunal that retrospective promotion was impermissible but noting that notional financial benefits were justified given that no fault can be attributed to respondent No. 1. Aggrieved, the State has preferred this appeal
