SUPREME COURT HOLDS THAT A PROMOTION IS EFFECTIVE FROM THE DATE IT IS GRANTED AND NOT FROM THE DATE OF VACANCY

A two Judge Bench of Supreme Court comprising of Justice Hima Kohli and Justice Ahsanuddin Amanullah passed a judgement dated 23.07.2023 in Bihar State Electricity Board and Ors. v. Dharamdeo Das Civil Appeal No. 6977 of 2015 wherein the Apex Court held that an employee cannot claim seniority just because there is a vacancy in the office. The Court held that the date of the actual appointment is the date to be considered as per the established protocol.

Facts

The Respondent, a physically challenged Scheduled Caste individual, was appointed as a Lower Division Assistant on 01.06.1976 in the Bihar State Electricity Board (Board). He was later promoted to Upper Division Assistant on an officiating basis on 09.06.1982. The Bihar State Electricity Board, Appellant herein challenged the Order dated 20.10.2011, passed by the Division Bench of the Patna High Court. This Order was in response to a Letters Patent Appeal LPA No. 41 of 2008 filed by the Respondent against a Single Judge’s Order dated 03.10.2007 where the Respondent filed his first case for getting the benefits of a promoted post.

The Respondent provided that he was given the promotion to the post of Joint Secretary on 05.03.2003, but it shall be considered effective from July 1997, i.e.  when the post became vacant. The Single Judge had rejected this plea, but the Division Bench of Patna High Court overturned this decision, directing the Board to promote the Respondent retrospectively from 29.07.1997. Consequently, the Respondent, who had already retired, was entitled to all benefits of the post from the retrospective date.

On 26.12.1991, the Board passed a Resolution determining the ‘Kal Awadhi’ (a qualifying period) in which the Scheduled Caste/Scheduled Tribe and General Category candidates get the promotion from one grade to another grade for various categories of employees.

The main contention of the Respondent was that he wanted the promotion to be effective from July 1997 from when the post became vacant. Moreover, he was the senior-most Under Secretary and a member of the reserved category.

To the contrary, the Appellant contended that the ‘Kal Awadhi’ denoted eligibility for consideration for the promotion and it does not provide an automatic grant of promotion. Moreover, there were no vacancies for the post of Joint Secretary on 29.07.1997. Therefore, the Respondent shall be granted the benefits of promotion from the date it was granted to him and not in the retrospective nature. Therefore, an Appeal was filed in the Supreme Court by the Board challenging the promotion of the Respondent in retrospective nature.

Issues

1) Whether the concept of providing promotional benefits from a retrospective date fundamentally valid?

2) Whether the Respondent was rightfully granted retrospective promotion?

Decision by Court

The Hon’ble Supreme Court was of view that promotion is effective from the date it is granted and not retrospective in nature. The right to be considered for promotion is a fundamental right but does not translate to an automatic right to promotion. Moreover, seniority or retrospective promotion cannot be granted from a date when an employee was not in the particular post or cadre.

The Hon’ble Bench relied on the judgement of Director, Lift Irrigation Corpn. Ltd. v. Pravat Kiran Mohanty and Others (2022) 12 SCC 579 which provided that-

“4…There is no fundamental right to promotion, but an employee has only right to be considered for promotion, when it arises, in accordance with relevant rules. From this perspective in our view the conclusion of the High Court that the gradation list prepared by the corporation is in violation of the right of Respondent writ petitioner to equality enshrined under Article 14 read with Article 16 of the Constitution, and the Respondent-writ petitioner was unjustly denied of the same is obviously unjustified.”

The Apex Court also relied on the judgement of Nani Sha and Others vs. State of Arunachal Pradesh and Others (2007) 15 SCC 406 wherein it was observed that that mere existence of a vacancy is not sufficient for an employee to claim seniority and the date of actual appointment has to be in accordance with the prescribed procedure.

Moreover, the Resolution dated 26.12.1991 specifically prescribed a minimum qualifying service before considering the case of an employee for promotion from one grade to another. The underlying aim of the said Resolution is to ensure that an employee gathers sufficient experience as may be required before he can be considered for promotion to the next higher post. Therefore, the Appeal was allowed as the Hon’ble Supreme Court provided that the Respondent’s claim did not adhere to the resolution of ‘Kal Awadhi’ and the impugned Order dated 20.10.2011 was set aside.

Conclusion

Therefore, the Supreme Court held that there is a certain principle of employment and promotion which every employer uses to grant promotion to their respective employees and workers and thus the Hon’ble Bench reiterated that seniority can neither be reckoned from the date when a vacancy arises, nor can it be granted retrospectively unless the service rules specifically provide for.

 

ARJAV JAIN

ASSOCIATE

THE INDIAN LAWYER & ALLIED SERVICES