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: SC

While hearing the Bihar State Electricity Board and Others vs. Dharamdeo Das case on July 23, 2024, the Supreme Court (SC) of India held 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. The SC bench of Justice Hima Kohli and Justice Ahsanuddin Amanullah was hearing an appeal filed by the Bihar State Electricity Board (BSEB) challenging the order of the Patna High Court (HC) that directed the BSEB to retrospectively promote an employee (respondent) to the position of Joint Secretary. 

The SC bench observed, “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.” Stating this, the bench cited various judgments that emphasized on the right to be considered for promotion to be a fundamental right. The bench while hearing the instant case said, “assuming that there was a vacancy to the subject posts, it would not have automatically created a valuable right in favor 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.”

In this case, the respondent was physically challenged and belonged to the SC (Scheduled Caste) category. He was appointed on a temporary basis to the post of Lower Division Assistant. The respondent was promoted on multiple occasions over the years. In December 1991, a resolution was passed by the Board determining Kal Awadhi for Scheduled Caste/Scheduled Tribe and General Category candidates for promotion from one grade to another grade for various categories of employees. In July 1995, the respondent was granted accelerated promotion to the post of Under Secretary and finally, he was granted accelerated promotion to the post of Joint Secretary on March 05, 2003. However, another resolution was passed by the Board in December 2003, deciding to reduce the number of sanctioned posts of the Joint Secretary from six to three at its headquarters in Patna. 

Being dissatisfied with the March 05, 2003 notification, the respondent filed a writ petition before the Patna High Court. He asserted that the post of Joint Secretary for the reserved category candidate in the Board was vacant from July 29, 1997, his case had not been considered for promotion from the said date. The writ petition 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 timeline. Therefore, the matter was heard by the Patna HC which directed the appellant to promote the respondent to the Joint Secretary post with effect from July 29, 1997. Aggrieved by the decision, the BSEB (appellant) moved to the Supreme Court. 

The Supreme Court opined, “...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.” It added, “Resolution dated 26th December 1991 prescribed a minimum qualifying service before considering the case of an employee for promotion from one grade to another…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.” 

After hearing the contentions from both parties, the SC bench ordered, “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. Such a view is in consonance with the settled legal position and cannot be faulted. Accordingly, the present appeal succeeds.”