Full Judgment Text
CIVIL APPEAL NO. 6977 OF 2015
REPORTABLE
IN THE SUPREME COURT OF INDIA
2024 INSC 549
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6977 OF 2015
BIHAR STATE ELECTRICITY BOARD
AND OTHERS .… APPELLANTS
Versus
DHARAMDEO DAS …. RESPONDENT
J U D G E M E N T
HIMA KOHLI, J.
1
1. The appellant – Bihar State Electricity Board has approached this Court assailing
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an order dated 20 October, 2011, passed by the Division Bench of the High Court of
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Judicature at Patna in a Letters Patent Appeal filed by the respondent against an order
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dated 3 October, 2007, passed by the learned Single Judge in a writ petition filed by the
respondent.
2. The respondent had averred in the writ petition that though he was promoted on the
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post of Joint Secretary on 5 March, 2003, the said promotion ought to be reckoned from
July, 1997, when the post had actually fallen vacant. This plea was turned down by the
learned Single Judge. However, the respondent succeeded in the intra court appeal
Signature Not Verified
Digitally signed by
KAVITA PAHUJA
Date: 2024.07.23
18:55:12 IST
Reason:
1
For short “Board”
2
LPA No. 41 of 2008
3
CWJC No. 9611 of 2005
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CIVIL APPEAL NO. 6977 OF 2015
preferred by him and as per the impugned judgement, the appellants have been directed
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to promote the respondent to the post of Joint Secretary with effect from 29 July, 1997.
By the time the impugned judgement was delivered, the respondent having
superannuated, the appellants were directed to grant him all the benefits that would have
accrued to him on such a post with retrospective effect.
BACKGROUND
3. The relevant facts of the case are that the respondent, who was physically
challenged and belonged to the Scheduled Caste category, was appointed on a temporary
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basis on the post of Lower Division Assistant vide letter dated 14 May, 1976. He joined
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the said post on 1 June, 1976. Vide letter dated 9 June, 1982 issued by the Board, the
respondent was promoted to the post of Upper Division Assistant on an officiating basis.
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4. Vide Resolution dated 12 August, 1983, the Board decided that out of six
sanctioned posts of Joint Secretary for the Board Secretariat, two shall be manned by
members of the Engineering Service of the Board, two by deputationists or Government
Servants of appropriate rank and two by Ministerial Officers of the Board Secretariat.
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5. Vide Office order dated 17 September, 1992, the respondent was granted
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promotion as an Upper Division Assistant on an officiating basis with effect from 23 July,
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1982. By the Board’s Notification dated 17 September, 1992, the respondent was also
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granted accelerated promotion to the post of Section Officer with effect from 23 July,
1982.
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6. The Board issued a Notification dated 30 June, 1995, granting the respondent
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accelerated promotion on the post of Section Officer (Senior Grade) with effect from 11
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CIVIL APPEAL NO. 6977 OF 2015
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December, 1986. Again, Notification dated 1 July, 1995 was issued by the Board granting
him accelerated promotion for the post of Administrative Officer on a notional basis with
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effect from 25 July, 1989.
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7. On 26 December, 1991, the Board passed a Resolution determining the Kal
Awadhi for Scheduled Caste/Scheduled Tribe and General Category candidates for
promotion from one grade to another grade for various categories of employees. The said
Resolution fixed the Kal Awadhi for promotion from the post of Under Secretary to Joint
Secretary in the General Administrative Cadre (Board Headquarter) as three years. It also
stated that “ the Kal Awadhi for candidates belonging to the Scheduled Castes and
Scheduled Tribes for promotion to the next higher grade will be one year less than what
has been mentioned for candidates not belonging to Scheduled Caste and Scheduled
Tribes”.
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8. Vide Notification dated 9 July, 1995 the respondent was granted accelerated
promotion to the post of Under Secretary and finally, he was granted accelerated promotion
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to the post of Joint Secretary, vide Notification dated 5 March, 2003.
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9. On 6/8 December, 2003, the Board passed a Resolution deciding to reduce the
number of sanctioned posts of Joint Secretary from six to three at its headquarters at Patna
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and accordingly, issued an Office Order dated 24 December, 2003 reducing the six
sanctioned posts of Joint Secretary to three. One post was to be manned by an Officer
from the Bihar Administrative Service of suitable rank, the second one by a Ministerial
officer of the Board Secretariat Cadre and the third one by an Officer from the Engineering
Cadre.
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CIVIL APPEAL NO. 6977 OF 2015
ENSUING LITIGATION
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10. Dissatisfied with the Notification dated 5 March, 2003 issued by the Board granting
him accelerated promotion from the post of Under Secretary to Joint Secretary, the
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respondent filed a writ petition before the High Court of Patna for considering his case for
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promotion to the post of Joint Secretary with effect from 29 July, 1997 and not from 5
March, 2003 on a plea that though the post of Joint Secretary for the reserved category
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candidate in the Board was vacant from 29 July, 1997, his case had not been considered
for promotion from the said date.
11. Noting that a representation in this regard submitted by the respondent was pending
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before the Secretary of the Board, vide order dated 23 September, 2004, the writ petition
was disposed of by the learned Single Judge and the Board was directed to consider the
said representation and pass a reasoned order within a fixed time line.
12. The pending representation of the respondent was decided by the Board by a
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Resolution dated 9 June, 2005. The said Resolution noted that during his 29 years of
service, the respondent was granted five promotions. In view of the bifurcation of the
erstwhile State of Bihar into the present State of Bihar and Jharkhand, the Jharkhand State
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Electricity Board was constituted with effect from 2 January, 2004. This had resulted in
re-organization of the administrative/ministerial cadre at the Headquarters of the Board.
Post re-organisation of the Administrative cadre, only three posts of Joint Secretary were
fixed for the Board out of which only one post was earmarked for Officers of the Ministerial
4
CWJC No. 14194 of 2001
5
ibid
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CIVIL APPEAL NO. 6977 OF 2015
Cadre, like the respondent herein. The Board rejected the claim of the respondent for
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seeking promotion to the post of Joint Secretary with effect from 29 July, 1997 on a plea
that he had completed the prescribed Kal Awadhi on the said date and the marked post of
the Joint Secretary from amidst the Officers of the Ministerial Cadre was vacant at that
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time. It was observed that the said post was not vacant from 29 July, 1997 and that
Officers from the Engineering Service of the Board and Officers of the Administrative
Service of the Bihar Government were already posted as Joint Secretary. Therefore, it was
not possible to grant promotion to the respondent on the post of Joint Secretary with effect
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from 29 July, 1997.
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13. The aforesaid decision taken by the Board vide Resolution dated 9 June, 2005,
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was challenged by the respondent in a writ petition . Vide judgement dated 3 October,
2007, the learned Single Judge dismissed the said writ petition holding inter alia that
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Resolution dated 26 December, 1991 passed by the Board was only a basic guideline for
determining the Kal Awadhi for promotion from one cadre to the other so that a person
acquires minimum period of experience on the given post before he can be promoted to
the next higher post and such a guideline can only be treated as directory in nature and
not mandatory. The learned Single Judge concurred with the submission made by the
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appellants that promotion given to the respondent on 5 March, 2003, was on account of
certain administrative problems that had cropped up when the State of Bihar was bifurcated
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into the present State of Bihar and State of Jharkhand on 15 November, 2003. It was held
that merely because the respondent had completed the period contemplated under the Kal
6
CWJC No. 9611 of 2005
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CIVIL APPEAL NO. 6977 OF 2015
Awadhi for the next higher post would not be a criteria to shift his date of promotion from
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5 March, 2003 to the year 1997.
14. Aggrieved by the aforesaid decision of the learned Single Judge, the respondent
filed an intra court appeal. The said judgement was overturned by the Division Bench by
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the impugned judgement, observing that the Resolution dated 9 June, 2005 whereby the
respondent’s representation was rejected by the Board, was unsustainable since it did not
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adhere to the Kal Awadhi as mentioned in the Resolution dated 26 December, 1991. The
respondent who had already superannuated from the post of Under Secretary, was
therefore held entitled to all the benefits of such a post with retrospective effect. It is the
said decision that has been challenged by the appellant Board in the present appeal.
ARGUMENTS ADVANCED
15. Mr. Navin Prakash, learned Counsel for the appellant Board submitted that the
Division Bench has misconstrued the concept of Kal Awadhi which actually denotes
qualifying service and does not mean that immediately upon completion of the period of
three years for promotion from the post of Under Secretary to Joint Secretary, as
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contemplated in the Resolution dated 26 December, 1991, an employee ought to be
compulsorily promoted. He urged that the Kal Awadhi prescribed for promotion from one
post to another is only an eligibility criteria that has been laid down and upon completion
of the said period, the incumbent employee becomes eligible for being considered for
promotion to the next higher post but it is not as if there is a compulsion to promote him
immediately upon completion of the period of the Kal Awadhi . Highlighting the facts that
the respondent herein had already earned five accelerated promotions in a span of about
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CIVIL APPEAL NO. 6977 OF 2015
23 years of service, learned counsel submitted that the date on which the respondent had
completed his Kal Awadhi for promotion from the post of Under Secretary to Joint
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Secretary, i.e., on 29 July, 1997, there was no vacancy on the post of Joint Secretary till
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the actual date of his promotion i.e., 5 March, 2003 which fact has been completely
overlooked in the impugned judgement. To fortify the aforesaid submission learned
counsel cited decisions of this Court in Nirmal Chandra Sinha vs. Union of India and
7 8
Others and Union of India and Another vs. Manpreet Singh Poonam and Another .
16. Per contra , Mr. Amit Pawan, learned counsel for the respondent supported the
impugned judgement and submitted that the respondent was rightly promoted to the post
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of Under Secretary with effect from 29 July, 1997 since he had already completed the Kal
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Awadhi on the said date, in terms of the Resolution dated 26 December, 1991 issued by
the Board. He submitted that besides the fact that the respondent falls under the reserved
category and is physically challenged, he was also the senior most member in the cadre
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of Under Secretary on the relevant date i.e., 29 July, 1997. Having completed the Kal
Awadhi period as on the said date, the respondent was qualified and eligible for promotion
and ought to have been immediately considered for promotion with effect from the said
date. He therefore submits that the impugned judgement does not deserve interference.
DISCUSSION ON THE LEGAL POSITION
17. We have perused the pleadings and the records and given our thoughtful
consideration to the submissions advanced by learned counsel for the parties.
7
(2008) 14 SCC 29
8
(2022) 6 SCC 105
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CIVIL APPEAL NO. 6977 OF 2015
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 or when the post itself is
created. No doubt, a right to be considered for promotion has been treated by courts not
just as a statutory right but as a fundamental right, at the same time, there is no
fundamental right to promotion itself. In this context, we may profitably cite a recent
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decision in Ajay Kumar Shukla vs. Arvind Rai where, citing earlier precedents in
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Director, Lift Irrigation Corporation Ltd. vs. Pravat Kiran Mohanty and Others and
11
Ajit Singh and Others vs. State of Punjab and Others , a three Judge Bench observed
thus:
41. This Court, time and again, has laid emphasis on right to
be considered for promotion to be a fundamental right, as was held
by K. Ramaswamy, J., in Director, Lift Irrigation Corpn. Ltd. v.
9
Pravat Kiran Mohanty and Others in para 4 of the report which
is reproduced below:
“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.”
42. A Constitution Bench in Ajit Singh and Others v. State of
10
Punjab and Others , laying emphasis on Article 14 and Article
16(1) of the Constitution of India held that if a person who satisfies
the eligibility and the criteria for promotion but still is not considered
for promotion, then there will be clear violation of his/her’s
fundamental right. Jagannadha Rao, J. speaking for himself and
Anand, C.J., Venkataswami, Pattanaik, Kurdukar, JJ., observed
the same as follows in paras 22 and 27 :
9
(2022) 12 SCC 579
10
(1991) 2 SCC 295
11
(1999) 7 SCC 209
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CIVIL APPEAL NO. 6977 OF 2015
“Articles 14 and 16(1) : is right to be considered
for promotion a fundamental right
22. Article 14 and Article 16(1) are closely
connected. They deal with individual rights of the
person. Article 14 demands that the ‘State shall not
deny to any person equality before the law or the
equal protection of the laws’. Article 16(1) issues a
positive command that:
‘there shall be equality of opportunity for all citizens
in matters relating to employment or appointment to
any office under the State’.
It has been held repeatedly by this Court that clause
(1) of Article 16 is a facet of Article 14 and that it
takes its roots from Article 14. The said clause
particularises the generality in Article 14 and
identifies, in a constitutional sense “equality of
opportunity” in matters of employment and
appointment to any office under the State. The word
“employment” being wider, there is no dispute that it
takes within its fold, the aspect of promotions to
posts above the stage of initial level of recruitment.
Article 16(1) provides to every employee otherwise
eligible for promotion or who comes within the zone
of consideration, a fundamental right to be
“considered” for promotion. Equal opportunity here
means the right to be “considered” for promotion. If
a person satisfies the eligibility and zone criteria but
is not considered for promotion, then there will be a
clear infraction of his fundamental right to be
“considered” for promotion, which is his personal
right.
“Promotion” based on equal opportunity and
seniority attached to such promotion are facets of
fundamental right under Article 16(1)
*
27. In our opinion, the above view expressed
in Ashok Kumar Gupta [Ashok Kumar
12
Gupta v. State of U.P . , and followed in Jagdish
13
Lal [Jagdish Lal v. State of Haryana , and other
cases, if it is intended to lay down that the right
guaranteed to employees for being “considered” for
promotion according to relevant rules of recruitment
by promotion (i.e. whether on the basis of seniority
or merit) is only a statutory right and not
a fundamental right, we cannot accept the
proposition. We have already stated earlier that the
right to equal opportunity in the matter of promotion
12
(1997) 5 SCC 201
13
(1997) 6 SCC 538
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CIVIL APPEAL NO. 6977 OF 2015
in the sense of a right to be “considered” for
promotion is indeed a fundamental right guaranteed
under Article 16(1) and this has never been doubted
in any other case before Ashok Kumar
11
Gupta [Ashok Kumar Gupta v. State of U.P. ],
right from 1950.”
19. A similar view has also been expressed earlier hereto in K.V. Subba Rao and
14
Others vs. Government of Andhra Pradesh and Others , Union of India and Others
15
vs. K.K. Vadera and Others , Sanjay Kumar Sinha-II and Others vs. State of Bihar
16 17
and Others , State of Uttaranchal and Others vs. Dinesh Kumar Sharma , Nirmal
6 7
Chandra Sinha (supra) and recently in Manpreet Singh Poonam (supra).
18
20. In State of Bihar and Others vs. Akhouri Sachindra Nath and Others , it was
held that retrospective seniority cannot be given to an employee from a date when he was
not even borne in the cadre, nor can seniority be given with retrospective effect as that
might adversely affect others. The same view was reiterated in Keshav Chandra Joshi
19
and Others vs. Union of India and Others , where it was held that when a quota is
provided for, then the seniority of the employee would be reckoned from the date when the
vacancy arises in the quota and not from any anterior date of promotion or subsequent
date of confirmation. The said view was restated in Uttaranchal Forest Rangers’ Assn.
20
(Direct Recruit) and Others vs. State of U.P. and Others , in the following words :
“ 37. We are also of the view that no retrospective promotion or
seniority can be granted from a date when an employee has not
even been borne in the cadre so as to adversely affect the direct
recruits appointed validly in the meantime, as decided by this Court
14
(1988) 2 SCC 201
15
(1989) Supp. 2 SCC 625
16
(2004) 10 SCC 734
17
(2007) 1 SCC 683
18
1991 Supp (1) SCC 334
19
1992 Supp (1) SCC 272
20
(2006) 10 SCC 346
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CIVIL APPEAL NO. 6977 OF 2015
in Keshav Chandra Joshi and Others v. Union of India and
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Other held that when promotion is outside the quota, seniority
would be reckoned from the date of the vacancy within the quota
rendering the previous service fortuitous. The previous promotion
would be regular only from the date of the vacancy within the quota
and seniority shall be counted from that date and not from the date
of his earlier promotion or subsequent confirmation. In order to do
justice to the promotees, it would not be proper to do injustice to the
direct recruits….…
38. This Court has consistently held that 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 particularly when this would
adversely affect the direct recruits who have been appointed
validly in the meantime. ”
(emphasis added)
21
21. In Nani Sha and Others vs. State of Arunachal Pradesh and Others , it was
observed 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
16
procedure. In Dinesh Kumar Sharma (supra), the following pertinent observations were
made :
“34. Another issue that deserves consideration is whether the year
in which the vacancy accrues can have any relevance for the
purpose of determining the seniority irrespective of the fact when
the persons are recruited. Here the respondent's contention is that
since the vacancy arose in 1995-1996, he should be given
promotion and seniority from that year and not from 1999, when his
actual appointment letter was issued by the appellant. This cannot
be allowed as no retrospective effect can be given to the order of
appointment order under the Rules nor is such contention
reasonable to normal parlance. This was the view taken by this
22
Court in Jagdish Ch. Patnaik v. State of Orissa .”
21
(2007) 15 SCC 406
22
(1998) 4 SCC 456
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CIVIL APPEAL NO. 6977 OF 2015
22. The spirit behind elevating the right for being considered for promotion to a
fundamental right is enshrined in the principle of “equality of opportunity” in relation to
matters of employment and appointment to a position under the State. Once employed,
the employees are entitled for being considered for promotion to the next higher post
subject to their satisfying the eligibility criteria, as per the applicable rules. Failure to
consider an employee for promotion even after satisfying the eligibility criteria would violate
her fundamental right. However, a clear distinction has been drawn between the stage of
considering an employee for being promoted to taking the next step of recognizing the said
right as a vested right for promotion. That is where the line has to be drawn. Stated
differently, a right to be considered for promotion being a facet of the right to equal
opportunity in employment and appointment, would have to be treated as a fundamental
right guaranteed under Articles 14 and 16(1) of the Constitution of India but such a right
cannot translate into a vested right of the employee for being necessarily promoted to the
promotional post, unless the rules expressly provide for such a situation.
23. The view 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
14
such a situation, is fortified by the decision of this Court in K.K. Vadera (supra) which has
emphasised in no uncertain terms the settled position in law that promotion to a post should
only be granted from the date of the promotion and not from the date on which a vacancy
23
may have arisen. In Ganga Vishan Gujarati vs State of Rajasthan , this Court had
reiterated the principle that retrospective seniority cannot be granted to an employee from
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(2019) 16 SCC 28
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CIVIL APPEAL NO. 6977 OF 2015
the date when she was not even borne on the cadre. This principle has been built upon by
a line of precedents starting with the decision of the Constitution Bench of this Court in
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Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra , followed in
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Akhouri Sachindra Nath (supra), Dinesh Kumar Sharma (supra) and several other
cases.
25
24. In Pawan Pratap Singh vs. Reevan Singh , this Court had taken note of the
9
earlier decision in Pravat Kiran Mohanty (supra) and summarised the position in the
following words :
45. A consistent line of precedent of this Court follows the
principle that retrospective seniority cannot be granted to an
employee from a date when the employee was not borne on a
cadre. Seniority amongst members of the same grade has to be
counted from the date of initial entry into the grade. This principle
emerges from the decision of the Constitution Bench of this Court
in Direct Recruit Class II Engg. Officers' Assn. v. State of
Maharashtra [Direct Recruit Class II Engg. Officers'
23
Assn. v. State of Maharashtra . The principle was reiterated by
this Court in State of Bihar v. Akhouri Sachindra
17 16
Nath and State of Uttaranchal v. Dinesh Kumar Sharma .
24
In Pawan Pratap Singh v. Reevan Singh , this Court revisited
the precedents on the subject and observed :
‘45. … (i) The effective date of selection has to be understood in
the context of the service rules under which the appointment is
made. It may mean the date on which the process of selection
starts with the issuance of advertisement or the factum of
preparation of the select list, as the case may be.
(ii) Inter se seniority in a particular service has to be determined as
per the service rules. The date of entry in a particular service or the
date of substantive appointment is the safest criterion for fixing
seniority inter se between one officer or the other or between one
group of officers and the other recruited from different sources. Any
departure therefrom in the statutory rules, executive instructions or
otherwise must be consistent with the requirements of Articles 14
and 16 of the Constitution.
24
(1990) 2 SCC 715
25
(2011) 3 SCC 267
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CIVIL APPEAL NO. 6977 OF 2015
(iii) Ordinarily, notional seniority may not be granted from the
backdate and if it is done, it must be based on objective
considerations and on a valid classification and must be traceable
to the statutory rules.
(iv) The seniority cannot be reckoned from the date of
occurrence of the vacancy and cannot be given
retrospectively unless it is so expressly provided by the
relevant service rules. It is so because seniority cannot be
given on retrospective basis when an employee has not even
been borne in the cadre and by doing so it may adversely
affect the employees who have been appointed validly in the
meantime.’
This view has been re-affirmed by a Bench of three Judges of this
26
Court in P. Sudhakar Rao v. U. Govinda Rao .”
(emphasis added)
25
[Also refer : P. Sudhakar Rao v. U. Govinda Rao and Union of India and Another v.
7
Manpreet Singh Poonam and Another ]
APPLICATION OF THE LAW TO THE FACTS OF THE CASE
25. Coming back to the facts of the instance case, there is no dispute that the
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respondent who started his career as a Lower Division Assistant on 1 June, 1976, was
promoted to the post of Upper Division Assistant on an officiating basis with effect from
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23 July, 1980, was granted the first accelerated promotion to the post of Section Officer
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with effect from 23 July, 1982, a second accelerated promotion on the post of Section
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Officer (Senior Grade) with effect from 11 December, 1986, a third accelerated promotion
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to the post of Administrative Officer with effect from 25 July, 1989, a fourth accelerated
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promotion to the post of Under Secretary on 9 July, 1995 and finally, a fifth accelerated
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promotion on the post of Joint Secretary on 5 March, 2003. This goes to show that within
26
(2013) 8 SCC 693
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CIVIL APPEAL NO. 6977 OF 2015
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a span of ten years five months (from 23 July, 1982 to 5 March, 2003) the respondent
was granted five promotions by the appellant-Board.
26. Much emphasis has been laid by learned counsel for the respondent on the
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Resolution dated 26 December, 1991 to contend that once the respondent had completed
the required period of three years mentioned as Kal Awadhi for promotion from the post of
Under Secretary to Joint Secretary, he was automatically entitled for promotion to the next
higher post. The said submission is however found to be devoid of merits.
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27. Resolution dated 26 December, 1991 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. But that is not to state that on completion of the duration of Kal Awadhi for
promotion, an employee would automatically be entitled for promotion to the next higher
post. No employee can lay a claim for being promoted to the next higher post merely on
completing the minimum qualifying service. Such an interpretation of the resolution would
be fallacious and virtually result in nullifying the settled law of a right inhering in an
employee for being considered for promotion being a fundamental right. By no stretch of
imagination can a right for being appointed to the promotional post be treated as a vested
right.
28. We do not find any error in the stand taken by the appellant-Board in terms of its
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Resolution dated 9 June, 2005, whereby the respondent’s plea for shifting his date of
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promotion to the post of Joint Secretary from 5 March, 2003 to 29 July, 1997 was
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CIVIL APPEAL NO. 6977 OF 2015
rejected for the reason that there was no vacant post of Joint Secretary during the period
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between 29 July, 1997 to 5 March, 2003 on account of the fact that after the bifurcation
of the erstwhile State of Bihar into the present State of Bihar and Jharkhand, vide
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Resolution dated 6/8 December, 2003 the appellant-Board had taken a calibrated
decision to slash the number of sanctioned posts of Joint Secretary from six to three at the
th
headquarters at Patna. The subsequently issued Office Order dated 24 December, 2003
gave effect to such an intention and declared that from out of the reduced posts of Joint
Secretary, one would be manned by an Officer of suitable rank from the Bihar
Administrative Service, one from the Ministerial Officer of the Board Secretariat Cadre and
the third from the Engineering Cadre.
29. In the instant case, records reveal that there was no vacancy to the post of Under
Secretary in the appellant-Board on the said post being reduced from six to three. This
step was taken by the Board due to administrative exigencies. We do not find any infirmity
in the said decision. Even otherwise, assuming that there was a vacancy to the subject
posts, it would not have automatically created a valuable right in favour of the respondent
for claiming retrospective promotion to the next higher post. It is only when an actual
vacancy arose that the respondent was granted the benefit of accelerated promotion and
that too on going through the prescribed process.
CONCLUSION
30. Given the above legal position, in our view, the Division Bench of the High Court
ought to have refrained from interfering with the findings returned by the learned Single
Judge who has rightly held that merely because the respondent had completed the Kal
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CIVIL APPEAL NO. 6977 OF 2015
Awadhi for promotion from the post of Under Secretary to Joint Secretary, would not
necessarily entitle him for appointment from the date the post fell vacant. This is not a
case where the respondent has been deprived of promotion to the next higher post, nor is
it a case where the action of the Board was guided by any malafides or colourable exercise
of power. As noted above, the action of the Board was purely guided by administrative
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exigencies. The Resolution of the Board dated 26 December, 1991 for fixing the Kal
Awadhi was only directory in nature and cannot be treated as statutory for the respondent
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to have claimed an entitlement to promotion reckoned from 29 July, 1997, instead of 5
March, 2003. Such a view is in consonance with the settled legal position and cannot be
faulted.
31. Accordingly, the present appeal succeeds. For the reasons stated aforesaid, the
th rd
impugned order dated 20 October 2011 is set aside and the order dated 3 October, 2007
passed by the learned Single Judge is restored. Parties are left to bear their own expenses.
………………………………….J.
[HIMA KOHLI]
……………………………………J.
[AHSANUDDIN AMANULLAH]
NEW DELHI;
rd
23 JULY, 2024
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