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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 ..... ve 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 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 was granted promotion as an Upper Division Assistant on an officiating basis with effect from 23rd July, 1982. By the Board's Notification dated 17th September, 1992, the Respondent was also granted accelerated promotion to the post of Section Officer with effect from 23rd July, 1982. 6. The Board issued a Notification dated 30th June, 1995, granting the Respondent accelerated promotion on the post of Section Officer (Senior Grade) with effect from 11th December, 1986. Again, Notification dated 1st July, 1995 was issued by the Board granting him accelerated promotion for the post of Administrative Officer on a notional basis with effect from 25th July, 1989. 7. On 26th December, 1991, the Board passed a Resolution determining the Kal Awadhi for Scheduled Caste/Scheduled Tribe and General Category candidates for promo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 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 Cadre, like the Respondent herein. The Board rejected the claim of the Respondent for seeking promotion to the post of Joint Secretary with effect from 29th 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 time. It was observed that the said post was not vacant from 29th 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 poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber, 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 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 Secretary, i.e., on 29th July, 1997, there was no vacancy on the post of Joint Secretary till the actual date of his promotion i.e., 5th March, 2003 which fact has been completely overlooked in the impugned judgment. To fortify the aforesaid submission learned Counsel cited decisions of this Court in Nirmal Chandra Sinha v. Union of India and Ors. (2008) 14 SCC 29 and Union of India and Anr. v. Manpreet Singh Poonam and Anr. (2022) 6 SCC 105. 16. Per contra, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 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 : 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ihar 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 effect as that might adversely affect others. The same view was reiterated in Keshav Chandra Joshi and Ors. v. Union of India and Ors. 1992 Supp (1) SCC 272, 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. (Direct Recruit) and Ors. v. State of U.P. and Ors. (2006) 10 SCC 346, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 such a situation, is fortified by the decision of this Court in K.K. Vadera (1989) Supp. 2 SCC 625 (supra) which has emp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Court in P. Sudhakar Rao v. U. Govinda Rao (2013) 8 SCC 693. (emphasis added) [Also refer : P. Sudhakar Rao v. U. Govinda Rao (2013) 8 SCC 693 and Union of India and Anr. v. Manpreet Singh Poonam and Anr. (2022) 6 SCC 105] APPLICATION OF THE LAW TO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 State of Bihar and Jharkhand, vide Resolution dated 6/8th 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 headquarters at Patna. The subsequently issued Office Order dated 24th 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 red ..... X X X X Extracts X X X X X X X X Extracts X X X X
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