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IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
N. Unni Krishnan Nair, J.
Nani Pussang, Son of Late Nani Nipa – Petitioner
Versus
The State of AP represented by the Chief Secretary and ors. – Respondents
WP(C)/132/2024
Decided On : 19-12-2024
(A) Promotion Rules - Retrospective Promotion - The petitioner challenged the DPC minutes dated 27.05.2022, which recommended promotion from that date, not considering prior officiating service from 24.06.2009. The court held that promotions take effect from the date granted, not from the date of vacancy, referencing Union of India & Ors. Vs K. K. Vadera & Ors. and others. (Paras 16-24)
(B) Seniority - The court ruled that seniority cannot be assigned retrospectively prior to regular promotion, emphasizing the principle that a person cannot claim seniority before being borne in the cadre. (Paras 20-24)
Facts of the case:
The petitioner was promoted on an officiating basis but was not considered for regular promotion until 2022, leading to claims for retrospective promotion.
Findings of Court:
The court found no merit in the petitioner's claims for retrospective promotion and upheld the DPC's decision.
Issues: The main issue was whether the petitioner could claim promotion with retrospective effect.
Ratio Decidendi: The court concluded that promotions are effective from the date granted, not from the date of vacancy, and that retrospective seniority cannot be granted.
Result: The writ petition was dismissed.
JUDGMENT :
Heard Mr. H. Lampu, learned counsel for the petitioner. Also heard Ms. P. Sangeeta, learned Government Advocate for the respondent nos. 1 & 4 and Mr. L. Perme, learned Standing Counsel for the Power Department representing the respondent nos. 2 & 3.
2. The challenge in the present proceedings, is to the minutes of the Departmental Promotion Committee (DPC) dated 27.05.2022, recommending the promotion of the petitioner w.e.f. the date of the DPC meeting. The grievance of the petitioner is that his officiating promotion as Assistant Engineer (Electrical) w.e.f. 26.09.2019 was not reckoned and seniority came to be assigned to him, in the cadre of Assistant Engineer (Electrical) only from the date of the meeting of the DPC.
3. The facts requisite for consideration of the issue arising in the present proceeding are noticed as under:-
The petitioner, who is a diploma holder in Electrical Engineering, was appointed as a Junior Engineer (Electrical) in the Power Department, vide order dated 21.01.1994. In terms of the Rules holding the field, the next promotional avenue available for an incumbent in the post of Junior Engineer (Electrical) are the posts figuring in the cadre of Assistant Engineer (Electrical). It is the case of the petitioner that he had attained eligibility for promotion to the post of Assistant Engineer (Electrical) in the year 2004 but, his case was not so considered for promotion.
In the year 2009, vide an order dated 12.05.2009; the petitioner came to be promoted to the cadre of Assistant Engineer (Electrical) on officiating basis, against a post belonging to the Direct Recruitment quota. In the said order, it was categorically mentioned that such officiating promotion will not bestow upon him any claim for regular promotion as Assistant Engineer (Electrical) and his officiating service would not be so reckoned for counting his seniority, confirmation etc., unless his officiating promotion is regularized by a regular DPC in conformity with the provisions of the Recruitment Rules. It is projected that the respondent authorities, vide an order dated 12.05.2009, proceeded to withdraw the officiating promotion so effected in the case of the petitioner vide the order dated 27.02.2018. It is contended that the petitioner, being aggrieved by the order dated 12.05.2009, had approached this Court by way of instituting WP(C) No. 67(AP)/2009. In terms of the directions passed by this Court, the respondent authorities vide order dated 24.06.2009, proceeded to reinstate the petitioner in the post of Assistant Engineer (E) on officiating basis, against a vacancy arising on the incumbent therein proceeding on deputation.
It is further projected that the persons who had proceeded on deputation and against which vacancies, the petitioner was so allowed to officiate on promotion as Assistant Engineer (E) vide order dated 24.06.2009, came to be absorbed as Executive Engineer (E) in the Department of Hydro Power Development, Government of Arunachal Pradesh.
It is further projected that in the meanwhile, the respondent authorities had circulated a final seniority list of the incumbents in the grade of Assistant Engineer (E), vide a Memorandum dated 01.08.2011, however, in the said list; the name of the petitioner was not so included. It is stated that the persons junior to the petitioner and also officiating in the post of Assistant Engineer (E) came to be so included therein. It is further contended that cases of the person junior to the petitioner in the cadre of Junior Engineer (E) and officiating in the post of Assistant Engineer (E), came to be considered by a DPC held on 27.07.2012 and they were given retrospective promotion to the cadre of Assistant Engineer (E) i.e. w.e.f. the date of their officiating promotion in the post of Assistant Engineer (E).
The petitioner being aggrieved, approached this Court by way of instituting WP(C) No. 11(AP)/2013, with a prayer for consideration of his case for promotion to the post of Ass
Promotions take effect from the date granted, not from the date of vacancy, and retrospective seniority cannot be assigned.
Promotion rights are not absolute; retrospective promotions require clear vacancies and adherence to procedural rules, which were not met in this case.
Promotion and seniority can only be awarded retrospectively when vacancies exist at the time of officiating promotions, and the Department must reevaluate claims based on factual evidence.
Promotions in public service are prospective and take effect from the date duties are assumed, not from earlier dates, emphasizing a distinction between the right to be considered for promotion and t....
An employee has a fundamental right to be considered for promotion, but not a right to retrospective promotion unless clearly justified by rules or exceptional circumstances.
The right to be considered for promotion is a fundamental right under Articles 14 and 16 of the Constitution of India, and denial of timely consideration constitutes a violation of these rights.
Court emphasized that administrative decisions regarding promotion and seniority must adhere to established rules and principles, ensuring equitable treatment for all eligible individuals.
Failure to pass mandatory departmental examination renders employee ineligible for gazetted promotion despite seniority, adhoc service, or pre-retirement DPC; no right to regular/notional promotion o....
The right to be considered for promotion is a fundamental right, but there is no absolute right to promotion itself, which becomes effective only upon assumption of duties.
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