Promotion Should Only Be Granted From Actual Date Of Promotion And Not When Vacancy Arises - Supreme Court
The Supreme Court while setting aside the order of the High Court in the case of Promotional Junior Administrative Grade-I post (JAG - I) has held that the promotion to a post should only be granted from the date of promotion and not from the date on which vacancy has arisen (Union of India v. KK Vadhera and Ors.).
The Court also held that mere existence of vacancy per se will not create a right in favor of an employee for retrospective promotion when the vacancies in the promotional post is specifically prescribed under the rules, which also mandate the clearance through a selection process.
A two-judge bench of Justice Sanjay Kishan Kaul and Justice. M.M. Sundresh dealt with the matter.
In this case, both the Respondents held the post of Junior Administrative Grade -II (JAG-II). One of the Respondents took voluntary retirement and the other Respondent was promoted on ad hoc bases to JAG-I after undergoing the selection process as per Rule 4 of National Capital Territory of Delhi, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli (Civil Service) Rules, 2003 (2003 Rules).
Respondents filed separated applications before Central Administrative Tribunal (CAT) which were rejected holding that JAG-I is neither wholly promotional nor an upgradation.
The Respondents filed writs against the decision of CAT on the ground of circular of Department of Personnel and Training (DoPT) dated 01.08.2012 which facilitated that a retired officer, otherwise eligible as on the due date is to be considered for the benefit of "pay-upgradation". The High Court allowed favored the Respondents.
The Supreme Court noted that as per Rule 7 of 2003 rules, the JAG-I is a promotional post and not a mere upgradation of post as there is a different pay scale, selection process, and eligibility criteria mentioned.
Further, the Bench relied on the case of Ajay Kumar Shukla and Ors. v. Arvind Rai and Ors. with regard to the position that the right to be considered for promotion is a fundamental right but there is no right to promotion. A person who satisfies the eligibility and the criteria for promotion but still is not considered for promotion, then there will be a clear violation of his/her fundamental right.
Furthermore, relying upon Ganga Vishan Gujrati and Ors. v. State of Rajasthan, the Bench added -
"Retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. 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"
Accordingly, the Court allowed the appeals and set aside the impugned order of the High Court.