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2024 (7) TMI 1597 - SC - Indian LawsInterpretation and application of promotion rules within the Bihar State Electricity Board specifically regarding the concept of Kal Awadhi and its implications for retrospective promotions - promotion to the post of Joint Secretary with effect from 29th July 1997 instead of 5th March 2003 - HELD THAT - 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 State of Bihar and Ors. v. Akhouri Sachindra Nath and Ors. 1991 (4) TMI 469 - SUPREME COURT 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 and Ors. v. Union of India and Ors. 1990 (11) TMI 428 - SUPREME COURT 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. In Nani Sha and Ors. v. State of Arunachal Pradesh and Ors. 2007 (5) TMI 593 - SUPREME COURT 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 procedure. Conclusion - 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 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. The action of the Board was purely guided by administrative exigencies. The Resolution of the Board dated 26th December 1991 for fixing the Kal Awadhi was only directory in nature and cannot be treated as statutory for the Respondent to have claimed an entitlement to promotion reckoned from 29th July 1997 instead of 5th March 2003. The impugned order dated 20th October 2011 is set aside and the order dated 3rd October 2007 passed by the learned Single Judge is restored - Appeal allowed.
ISSUES PRESENTED and CONSIDERED
The core issues considered in this judgment revolve around the interpretation and application of promotion rules within the Bihar State Electricity Board, specifically regarding the concept of "Kal Awadhi" and its implications for retrospective promotions. The primary questions include:
ISSUE-WISE DETAILED ANALYSIS Relevant Legal Framework and Precedents The legal framework primarily involves the Board's Resolution dated 26th December 1991, which prescribes the "Kal Awadhi" or qualifying service period for promotions. The Court examined precedents such as Ajay Kumar Shukla v. Arvind Rai and Director, Lift Irrigation Corporation Ltd. v. Pravat Kiran Mohanty, which emphasize the right to be considered for promotion as a fundamental right but distinguish it from an automatic entitlement to promotion. Court's Interpretation and Reasoning The Court interpreted "Kal Awadhi" as a minimum qualifying period necessary for consideration for promotion, not an automatic trigger for promotion. It emphasized that the right to be considered for promotion does not equate to a vested right to be promoted. The Court also noted that retrospective seniority or promotion cannot be granted unless explicitly provided for by service rules. Key Evidence and Findings The Court noted that the Respondent had received five promotions over his career, indicating that his career progression was not hindered. The Court found no evidence of a vacant position for Joint Secretary during the period in question, which justified the Board's decision not to promote the Respondent retrospectively. Application of Law to Facts The Court applied the principles from precedents to conclude that the Respondent's claim for retrospective promotion lacked merit. The absence of a vacancy from 29th July 1997 to 5th March 2003 meant that the Respondent could not claim a right to promotion during that period. Treatment of Competing Arguments The Court addressed the Respondent's argument that his completion of the "Kal Awadhi" period entitled him to promotion. It rejected this view, stating that the resolution was directory and not mandatory. The Court also dismissed the Division Bench's interpretation that the Board's rejection of the Respondent's representation was unsustainable. Conclusions The Court concluded that the Respondent was not entitled to retrospective promotion as there was no vacancy during the claimed period, and the "Kal Awadhi" did not mandate automatic promotion. SIGNIFICANT HOLDINGS Preserve Verbatim Quotes of Crucial Legal Reasoning The Court reiterated that "there is no fundamental right to promotion, but an employee has only the right to be considered for promotion, when it arises, in accordance with relevant rules." Core Principles Established
Final Determinations on Each Issue
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