Right To Promotion Not A Fundamental Right But Right To Be Considered Exists - SCI

In Government of West Bengal & Ors., Vs Dr. Amal Satpathi & Ors., [2024 INSC 906] the Supreme Court of India held that it is a well settled principle that promotion becomes effective from the date it is granted, rather than from the date a vacancy arises or the post is created and that while the Courts have recognized the right to be considered for promotion as not only a statutory right but also a fundamental right, there is no fundamental right to the promotion itself.

CASE SUMMARY

BRIEF FACTS:

- Respondent, Dr. Amal Satpathi, was promoted to the post of Principal Scientific Officer on an officiating basis on 24.03.2008.

- On 06.01.2016, following an amendment to the relevant Recruitment Rules, the Respondent became eligible for promotion to the post of Chief Scientific Officer. The Department initiated the promotional process by approaching the Public Service Commission (PSC) on 13.04.2016. The PSC, vide its minutes dated 29.12.2016, recommended the name of the Respondent for the promotion to the said post. However, the Department received the final approval for his promotion on 04.01.2017, by which time, Respondent had already superannuated on 31.12.2016.

- Respondent made a representation to the Department to give effect to his promotion. The matter was then referred to the Finance Department, Government of West Bengal. The Finance Department responded that in terms of rule 54(1)(a) of W.B.S.R. Part-I, a Govt. employee shall not draw pay higher than that of his permanent post unless the officiating appointment involves the assumption of duties and responsibilities of greater importance and as such declined to provide any relief to the Respondent.

- Aggrieved by the denial of the benefits flowing from promotion, Respondent approached the West Bengal Administrative Tribunal. The Tribunal vide order dated 26.06.2019 observed that, as per Rule 54(1)(a) of the West Bengal Service Rules, Part-I of 19716, promotion cannot be granted retrospectively after the retirement of a Government employee. However, the Tribunal acknowledged that the Respondent had been duly recommended for promotion before his superannuation, which was only delayed due to procedural obstructions beyond his control. Therefore, while actual promotion was not acceded to, the Tribunal directed that the Respondent should be granted notional financial benefits of the promotional post with effect from 31.12.2016, to ensure pensionary benefits commensurate with the promotional post.

- The Appellants challenged this order before the High Court which dismissed the writ petition, concurring with the Tribunal. Aggrieved, the State preferred the appeal in hand before the Supreme Court of India by special leave.

SUBMISSIONS MADE BY THE APPELLANT:

- The High Court erred by awarding pensionary benefits of the promotional post to the Respondent while rejecting his plea for notional promotion. This direction is in teeth of Rule 54(1)(a) of the West Bengal Service Rules, which provides that a Government employee cannot draw a higher pay without assuming duties of greater responsibility.  

- Service jurisprudence does not recognize retrospective promotion without a specific enabling provision. The final approval for the Chief Scientific Officer position was granted on 04.01.2017, after the Respondent’s superannuation on 31.12.2016, thus, the promotion could not be effected during his service tenure and therefore, in the absence of any specific rule permitting retrospective promotion, the effective date of promotion should be the date on which it is granted, not the date of the vacancy.

- The Respondent has no legally enforceable right to receive a higher pay scale without having assumed the post, and referred to the State’s Promotion Policy.

SUBMISSION MADE BY THE RESPONDENT:

- The Respondent had been serving as Principal Scientific Officer since 24.03.2008, and could have been promoted to Chief Scientific Officer as early as in the year 2013, had the Department submitted a timely proposal to fill up the vacancy. The Department failed to timely provide the confidential reports and other details of the Respondent to the PSC by 13.04.2016, as required under the Rules. This inaction, led to a significant delay in the promotion process and thus, Respondent was deprived of this rightful claim to the fruits of promotion from the date of occurrence of vacancy as per his entitlement.

- Had the Department officials acted with promptitude and diligence, Respondent would have in all probability received the promotion long before his retirement. The delay in processing the Respondent’s documents and service record, which were forwarded by the PSC on 29.12.2016 i.e. only two days before his superannuation on 31.12.2016, deprived him of the opportunity to serve in a higher post and to benefit from the associated financial benefits of the promotional post of Chief Scientific Officer which would include a higher pension.

- The laches on the part of the Department in moving the PSC after the Gazette notification on 06.01.2016, and the submission of incomplete documents on 13.04.2016, reflects a lackadaisical approach by the officials that led to the denial of the promotion to respondent No.1. Therefore, the impugned judgments which provided equitable relief to respondent No.1 do not warrant interference.

DECISION OF THE COURT:

Appeal allowed. Judgments of the Administrative Tribunal and Calcutta High Court set aside.

REASONS PROVIDED:

- Upon a bare perusal of Rule 54(1)(a) of the West Bengal Service Rules, it is clear that promotion cannot be retrospectively granted after retirement, as it requires the actual assumption of duties and responsibilities of the promotional post. In the present case, since the Respondent superannuated before the final approval of his promotion, he could not have formally assume the charge of the promotional post of Chief Scientific Officer. Therefore, although respondent No. 1 was recommended for promotion, Rule 54(1)(a) of the West Bengal Service Rules precludes him from getting the financial benefits of the promotional post without having taken on the responsibilities of the said post i.e. Chief Scientific Officer.

- It is a well settled principle that promotion becomes effective from the date it is granted, rather than from the date a vacancy arises or the post is created.

- While the Courts have recognized the right to be considered for promotion as not only a statutory right but also a fundamental right, there is no fundamental right to the promotion itself. [Bihar State Electricity Board Vs Dharamdeo Das (2024 SCC OnLine SC 1768)]

DATE OF THE JUDGMENT: 27.11.2024

[This is a case summary and not an opinion piece.]