SC: No Stretch Of Imagination Can A Right For Being Appointed To Promotional Post Be Treated As A Vested Right

The apex court set aside the Patna High Court's decision. The High Court had directed the Bihar Electricity Board to consider the case of promotion of Dharamdeo Das, an under-secretary to the post of joint secretary from July 29, 1997, instead of March 5, 2003, since he has completed a certain time period as per the resolution.

New Delhi:The Supreme Court has said that no employee can lay a claim for being promoted to the next higher post merely on completing the minimum qualifying service and also by no stretch of the imagination can a right for being appointed to the promotional post be treated as a vested right.

A bench of Justices Hima Kohli and Ahsanuddin Amanullah said: "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”.

The bench, in a judgment delivered on July 23, said 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.

It said that 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 recognising the said right as a vested right for promotion. That is where the line has to be drawn," said the bench.

The apex court made these observations while setting aside the Patna High Court's decision. The high court had directed the Bihar Electricity Board to consider the case of promotion of Dharamdeo Das, an under-secretary to the post of joint secretary from July 29, 1997, instead of March 5, 2003, since he has completed a certain time period as per the resolution.

"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," said the bench.

Justice Kohli, who authored the judgment on behalf of the bench, said 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," she said.

The bench said 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," said Justice Kohli.

The Bihar Electricity Board had argued that after the bifurcation of erstwhile Bihar, the post of joint secretary was reduced from six to three. It stressed that the time period criterion was only a directory in nature and cannot be treated as statutory for Das to have claimed entitlement to promotion.

The apex court said it does 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 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 bench said 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 (2019).