The right to be considered for promotion is fundamental, but promotion is effective only upon assuming duties, and retrospective promotions are impermissible.

JUDGMENT :

Jyotsna Rewal Dua, J.

Notice. Mr. L.N. Sharma, learned Additional Advocate General, appears and waives service of notice on behalf of the respondents.

2. More than seven years after his retirement, petitioner has instituted this writ petition seeking promotion to the post of Ranger.

3. Petitioner’s case is that he was due for promotion to post of Ranger in the year 2016. Meeting of DepartmentalPromotion Committee was also convened for making promotions to the post of Ranger. Petitioner was liable to be promoted. Petitioner was deliberately and intentionally not included for promotion to the post of Ranger by the DPC. He accordingly, seeks direction to the respondents that his case be considered for promotion to the post of Ranger from the due date i.e. the year 2016 alongwith all consequential benefits.

4. At this juncture, it will be appropriate to refer to Government of West Bengal & Ors. vs. Dr. Amal Satpathi & Ors., [Civil Appeal No.13187 of 2024 decided on 27.11.2024], whereunder it was held that employee whose promotion was not effectuated before his retirement would not be entitled to retrospective promotion and the notional benefits attached to the promotion.

In the aforesaid case, learned Tribunal had acknowledged that respondent No.1 (therein) had been duly recommended for promotion before his superannuation, which was delayed due to procedural obstructions beyond his control. Therefore, while actual promotion was not acceded to, the learned Tribunal directed that respondent No.1 shouldbe granted notional financial benefits of promotional post to ensure pensionary benefits commensurate with the promotional post. The order passed by learned Tribunal was assailed by appellant before Hon’ble High Court. The Hon’ble High Court dismissed the writ petition, concurring with the learned Tribunal that retrospective promotion was impermissible but the notional financial benefits were justifiably given, since, no fault could be attributed to respondent No.1.

The State assailed the aforesaid decision before the Hon’ble Apex Court. Appellant-State relied upon several pronouncements, including Union of India vs. N.C. Murali, (2017) 13 SCC 575, to contend that without a specific rule entitling employees to promotion from the date of vacancy, right to promotion arises only when it is actually effected. Whereas, submission on behalf of respondent No.1 was that he could have been promoted to post of Chief Scientific Officer years earlier; had the Department submitted a timely proposal to fill up the vacancy, had the Department officials acted with promptitude and diligence, respondent No.1 would have in all probabilityreceived the promotion long before his retirement.

Hon’ble Apex Court, inter alia, noticed Rule54(1)(a) of the West Bengal Service Rules and reiterated well-settled principle that promotion becomes effective from the date it is granted, rather than from the date a vacancy arises or the post is created. There is only right to be considered for promotion, there is no fundamental right to the promotion itself. No retrospective promotion can be granted nor can any seniority be given on retrospective basis from a date when an employee has not even been borne in the cadre. Relevant paras from the decision are as under:-

“19. It is a well settled principle that promotion becomes effective from the date it is granted, rather than from the date a vacancy arises or the post is created. While the Courts have recognized the right to be considered for promotion as not only a statutory right but also a fundamental right, there is no fundamental right to the promotion itself. In this regard, we may gainfully refer to a recent decision of this Court in the case of Bihar State Electricity Board and Others v. Dharamdeo Das, 2024 SCC OnLine SC 1768, wherein it was observed as follows:

“18. It is no longer res integra that a promotion is effective from the date it is granted and not from the date when a vacancy occurs on the subject post o