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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Satyen Vaidya, J.
Dushyant Kumar - Petitioner
Versus
State of H.P. & another - Respondents
CWPOA No. 3737 of 2020
Decided On : 14-12-2022
Constitution of India, 1950 - Articles 14, 16, 309 - H.P. Board of School Education Act, 1968 - Section 23 - Grant Promotion - Ad-Hoc Promotion - Consequential Benefits - Prayed that respondent No.1 may be directed to consider and then to promote applicant as Joint Secretary on regular or on ad-hoc basis with all consequential benefits – Mere existence of post or vacancy does not confer any right on incumbents in feeder category to claim promotion - Para 7.
Finding of the Court:
Petitioner has not laid any factual turf for deriving such benefit - Even otherwise, in fact situation of instant case there is nothing to suggest that respondents intended to grant promotion to post of Joint Secretary on basis of draft regulations - Even otherwise benefit, if any, under draft rules can be granted at option of employer that too for meeting emergent requirements - Draft rules cannot generally form basis of cause of action for employee - Respondent No.1 had conveyed to respondent No.2 Board that post of Joint Secretaries should be filled up in accordance with Section 23 of H.P. Board of School Education Act - However, these documents did not reflect intent of Respondents to promote petitioner as Joint Secretary on basis of draft regulations - Claim to ad-hoc promotion on behalf of petitioner is also not tenable for reason that there could be no anticipation regarding approval or finalization of R & P Regulations merely because draft regulations had been prepared - There had to be clear intention on part of respondents to enforce those draft Regulations in near future, which cannot be inferred from material on record - Petitioner can also not claim right to ad-hoc promotion simply on basis of practice allegedly adopted by respondent Board till 2009.
Result: Petition dismissed.
JUDGMENT :
Satyen Vaidya, J.
By way of instant petition, petitioner has prayed for the following substantive reliefs:-
ii) That the respondent No.1 may be directed to consider and then to promote the applicant as Joint Secretary on regular or on ad-hoc basis (whichever is beneficial) from due dates w.e.f. 16.8.2014 when case was recommended/forwarded by the respondent Board to Govt. for ad-hoc promotion) or w.e.f. 25.9.2014 (Department of Personnel gave its approval for ad-hoc promotion to respondent No.1) or w.e.f. 30.9.2014 (date of retirement of applicant) which is beneficial, as per the past practice borne out from Annexure A-26 or even otherwise, with all consequential benefits, forthwith.
iii) That the respondents may be directed to give benefit of higher pay fixation on promotion as Joint Secretary on regular or ad-hoc basis, from due date as in relief (ii) above, and to give benefit of higher pay fixation for all revised retiral benefits including monthly pension w.e.f. 1.10.2014 till May 2017 and thereafter with all consequential benefits forthwith;
iv) That the denial of consideration and the resultant promotion as Joint Secretary, either on ad-hoc or on regular basis from due dates as in relief (ii) above, may kindly be held as discriminatory, arbitrary malafide, violative of OM’s and Law and violative of Articles 14 and 16 of the Constitution of India, forthwith”
2. Brief facts necessary for adjudication are as under:
2.1 Petitioner was initially appointed as clerk in respondent No.2 Board on regular basis w.e.f. 2.4.1976. From time-to-time petitioner earned promotions to the post of Senior Assistant, Section Officer, Assistant Secretary and lastly as Deputy Secretary w.e.f. 4.2.2013.Petitioner joined as Deputy Secretary on 16.2.2013 and retired from said post on 30.9.2014.
2.2 There were two posts of Joint Secretaries in respondent No.2 Board. Though the Service Committee of respondent No.2 had placed before the Board, draft R & P Regulations for the post of Joint Secretary on 5.6.2013 but R & P Regulations for said post came into effect on 28.7.2015.
2.3 In absence of R & P Regulations, the post of Joint Secretary, till 2009, was being filled up from the feeder category of Deputy Secretaries on ad-hoc basis by application of principle of seniority-cum-fitness.
2.4 As per Draft R & P Regulations, the post of Joint Secretary was to be filled up from incumbents, who had rendered 30 years of service in the respondent No.2 Board, out of which, five years of combined service regular/ad-hoc was required as Section Officer, Assistant Secretary and Deputy Secretary in the Board and further atleast one year service was required as Deputy Secretary.
3. Petitioner has sought above noted reliefs by making assertions as under:
3.1 As per draft regulations, he had become eligible for being considered for promotion to the post of Joint Secretary on 16.2.2014, when he had rendered one year of service as Deputy Secretary.
3.2 Respondent No.2 Board recommended/ forwarded the case of petitioner to respondent No.1 for approval for promoting him as Joint Secretary on 16.8.2014. The matter remained pending at various levels and finally on 25.9.2014, the Department of Personnel allowed respondent No.2 Board to fill up the available vacant posts of Joint Secretary, as per law.
3.3 The aforesaid approval reached in the office of respondent No.2 after retirement of petitioner. Therefore, the petitioner retired without being considered for the post of Joint Secretary.
3.4 On 14.4.2016, respondent No.2 promoted S/Sh. Vijay Kumar and Chaman Lal as Joint Secretaries. Petitioner represented to the respondents to consider and grant the resultant promotion to the petitioner as Joint Secretary on ad-hoc or on regular basis or even on notional basis
As per Draft R & P Regulations, post of Joint Secretary was to be filled up from incumbents, who had rendered 30 years of service in respondent No.2 Board, out of which, five years of combined servic....
The main legal point established in the judgment is that the right to be considered for promotion is a fundamental right, and seniority cannot be granted retrospectively when an employee was not born....
(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 prom....
As per Rules, Lineman with ITI certificate having 7 years of regular service and non-ITI having 10 years regular service as Lineman was eligible to be considered for promotion to post of Foreman.
Promotions within public service must adhere to established criteria to uphold equality under Articles 14 and 16 of the Constitution, prohibiting arbitrary decisions that favor select individuals.
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.
Promotion criteria and eligibility are determined by the employer's discretion, and employees do not have a vested right to promotions under repealed rules.
Promotion in non-selection posts must adhere to seniority without subjective merit evaluations in the absence of unsuitability, reinforcing equality rights under the Constitution.
Promotion is not a vested right and an employee only has the right to be considered for promotion.
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