Right To Consideration For Non-Functional Promotion Persists Notwithstanding Superannuation And Non-Existence Of Cadre Posts

The petitioner was appointed as a Serviceman in the J&K Lumbering Undertaking on May 5, 1976.

Following the winding up of the Undertaking, he was repatriated from the J&K Forest Corporation to the J&K Forest Department, where he worked on the maintenance and repair of departmental vehicles.

The petitioner sought promotion to the post of Foreman, filing a previous writ (SWP 2395/2013) where the High Court directed the respondents to consider his case.

The respondents rejected his claim via an order dated November 27, 2015, stating that the cadre of "Foreman" does not exist in the Forest Department and creating it would require amending Recruitment Rules with significant financial implications.

The petitioner challenged this rejection, noting he had been granted three "In-situ" promotions (higher standard pay scales) under SRO 14 of 1996, but no functional promotion.

The petitioner superannuated in 2017 while the litigation was pending.

1. Whether the respondents are legally obligated to promote the petitioner to the post of Foreman in the absence of a sanctioned cadre or specific recruitment rules for such a post.

2. Whether the petitioner’s right to be considered for promotion was satisfied by the grant of "In-situ" pay scale benefits.

The court reaffirmed the principle that while an employee does not have an absolute right to promotion, they possess a fundamental right to be considered for promotion in accordance with the rules.

The court referenced the application of SRO 14 of 1996 regarding Higher Standard Pay Scale (In-situ promotion) as a substitute for functional promotion when vacancies are unavailable.

Court directed the application of legal precedents regarding service benefits and promotion, specifically citing AIR 2002 SC 77 and the J&K High Court decision in SLJ 2005 vol. 2, 576.

The Court observed that the petitioner’s primary grievance was the lack of functional promotion despite decades of service. The respondents argued that a "Foreman" post was non-existent in the departmental hierarchy and that the court cannot compel the government to create a cadre, as this is a policy prerogative involving financial implications.

The Court noted that during the pendency of the writ, the petitioner retired in 2017, shifting the nature of the potential relief to a "non-functional" or retrospective promotion.

Rather than adjudicating on the existence of the post, the Tribunal focused on the petitioner’s limited prayer to have his case re-evaluated as a fresh representation, considering his long service and the specific precedents that govern "consideration" even in stagnant cadres.

The respondents are ordered to pass a detailed, speaking order within eight weeks, specifically considering the petitioner's eligibility and the law laid down in AIR 2002 SC 77 and SLJ 2005 vol. 2, 576. The holding emphasizes that the respondents must objectively re-examine the petitioner’s entitlement to the next higher grade/post despite his retirement.