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TMI Blog2024 (7) TMI 1597X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment, the Appellants have been directed to promote the Respondent to the post of Joint Secretary with effect from 29th July, 1997. By the time the impugned judgment 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 basis on the post of Lower Division Assistant vide letter dated 14th May, 1976. He joined the said post on 1st June, 1976. Vide letter dated 9th June, 1982 issued by the Board, the Respondent was promoted to the post of Upper Division Assistant on an officiating basis. 4. Vide Resolution dated 12th 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. 5. Vide Office order dated 17th September, 1992, the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of Patna for considering his case for promotion to the post of Joint Secretary with effect from 29th July, 1997 and not from 5th March, 2003 on a plea that though the post of Joint Secretary for the reserved category candidate in the Board was vacant from 29th 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 before the Secretary of the Board, vide order dated 23rd September, 2004, the writ petition ibid 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 Resolution dated 9th 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 Electricity Board was constituted with effect from 2nd January, 2004. This had resulted in re-organization of the administrative/ministerial cadre at the Headquarters ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... representation was rejected by the Board, was unsustainable since it did not adhere to the Kal Awadhi as mentioned in the Resolution dated 26th 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 contemplated in the Resolution dated 26th 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r precedents in Director, Lift Irrigation Corporation Ltd. v. Pravat Kiran Mohanty and Ors. (1991) 2 SCC 295 and Ajit Singh and Ors. v. State of Punjab and Ors. (1999) 7 SCC 209, 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. Pravat Kiran Mohanty and Ors. (1991) 2 SCC 295 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 Ors. v. State of Punjab and Ors.(1999) 7 SCC 209, laying emphasis on Article 14 and Article 16(1) of the Constitution of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sis 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 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 Gupta [Ashok Kumar Gupta v. State of U.P. (1997) 5 SCC 201], right from 1950. 19. A similar view has also been expressed earlier hereto in K.V. Subba Rao and Others vs. Government of Andhra Pradesh and Others (1988) 2 SCC 201, Union of India and Others vs. K.K. Vadera and Others (1989) Supp. 2 SCC 625, Sanjay Kumar Sinha-II and Others vs. State of Bihar and Others (2004) 10 SCC 734, State of Uttaranchal and Others vs. Dinesh Kumar Sharma (2007) 1 SCC 683, Nirmal Chandra Sinha6 (supra) and recently in Manpreet Singh Poonam7 (supra). 20. In State of Bihar and Ors. v. Akhouri Sachindra Nath and Ors. 1991 Supp (1) SCC 334, 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 eff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 996, 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 Court in Jagdish Ch. Patnaik v. State of Orissa (1998) 4 SCC 456. 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 dra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Uttaranchal v. Dinesh Kumar Sharma (2007) 1 SCC 683. In Pawan Pratap Singh v. Reevan Singh (2011) 3 SCC 267, 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. (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 statut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay 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 Resolution dated 9th June, 2005, whereby the Respondent's plea for shifting his date of promotion to the post of Joint Secretary from 5th March, 2003 to 29th July, 1997 was rejected for the reason that there was no vacant post of Joint Secretary during the period between 29th July, 1997 to 5th March, 2003 on account of the fact that after the bifurcation of the erstwhile State of Bihar into the present ..... X X X X Extracts X X X X X X X X Extracts X X X X
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