2024 INSC 549 CIVIL APPEAL NO. 6977 OF 2015

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6977 OF 2015

BIHAR STATE ELECTRICITY BOARD

AND OTHERS .… APPELLANTS

Versus

DHARAMDEO DAS …. RESPONDENT

J U D G E M E N T

HIMA KOHLI, J.

1. The appellant – Bihar State Electricity Board

1 has approached this Court assailing

an order dated 20

th October, 2011, passed by the Division Bench of the High Court of

Judicature at Patna in a Letters Patent Appeal

2 filed by the respondent against an order

dated 3

rd October, 2007, passed by the learned Single Judge in a writ petition

3 filed by the

respondent.

2. The respondent had averred in the writ petition that though he was promoted on the

post of Joint Secretary on 5

th March, 2003, the said promotion ought to be reckoned from

July, 1997, when the post had actually fallen vacant. This plea was turned down by the

learned Single Judge. However, the respondent succeeded in the intra court appeal

1

For short “Board”

2

LPA No. 41 of 2008

3

CWJC No. 9611 of 2005

CIVIL APPEAL NO. 6977 OF 2015

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preferred by him and as per the impugned judgement, the appellants have been directed

to promote the respondent to the post of Joint Secretary with effect from 29

th July, 1997.

By the time the impugned judgement was delivered, the respondent having

superannuated, the appellants were directed to grant him all the benefits that would have

accrued to him on such a post with retrospective effect.

BACKGROUND

3. The relevant facts of the case are that the respondent, who was physically

challenged and belonged to the Scheduled Caste category, was appointed on a temporary

basis on the post of Lower Division Assistant vide letter dated 14

th May, 1976. He joined

the said post on 1

st June, 1976. Vide letter dated 9

th June, 1982 issued by the Board, the

respondent was promoted to the post of Upper Division Assistant on an officiating basis.

4. Vide Resolution dated 12

th August, 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 17

th September, 1992, the respondent was granted

promotion as an Upper Division Assistant on an officiating basis with effect from 23

rd July,

1982. By the Board’s Notification dated 17

th September, 1992, the respondent was also

granted accelerated promotion to the post of Section Officer with effect from 23

rd July,

1982.

6. The Board issued a Notification dated 30

th June, 1995, granting the respondent

accelerated promotion on the post of Section Officer (Senior Grade) with effect from 11

th

CIVIL APPEAL NO. 6977 OF 2015

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December, 1986. Again, Notification dated 1

st July, 1995 was issued by the Board granting

him accelerated promotion for the post of Administrative Officer on a notional basis with

effect from 25

th July, 1989.

7. On 26

th December, 1991, the Board passed a Resolution determining the Kal

Awadhi for Scheduled Caste/Scheduled Tribe and General Category candidates for

promotion from one grade to another grade for various categories of employees. The said

Resolution fixed the Kal Awadhi for promotion from the post of Under Secretary to Joint

Secretary in the General Administrative Cadre (Board Headquarter) as three years. It also

stated that “the Kal Awadhi for candidates belonging to the Scheduled Castes and

Scheduled Tribes for promotion to the next higher grade will be one year less than what

has been mentioned for candidates not belonging to Scheduled Caste and Scheduled

Tribes”.

8. Vide Notification dated 9

th 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, vide Notification dated 5

th March, 2003.

9. On 6/8

th December, 2003, the Board passed a Resolution deciding to reduce the

number of sanctioned posts of Joint Secretary from six to three at its headquarters at Patna

and accordingly, issued an Office Order dated 24

th December, 2003 reducing the six

sanctioned posts of Joint Secretary to three. One post was to be manned by an Officer

from the Bihar Administrative Service of suitable rank, the second one by a Ministerial

officer of the Board Secretariat Cadre and the third one by an Officer from the Engineering

Cadre.

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ENSUING LITIGATION

10. Dissatisfied with the Notification dated 5

th March, 2003 issued by the Board granting

him accelerated promotion from the post of Under Secretary to Joint Secretary, the

respondent filed a writ petition

4 before the High Court of Patna for considering his case for

promotion to the post of Joint Secretary with effect from 29

th July, 1997 and not from 5

th

March, 2003 on a plea that though the post of Joint Secretary for the reserved category

candidate in the Board was vacant from 29

th July, 1997, his case had not been considered

for promotion from the said date.

11. Noting that a representation in this regard submitted by the respondent was pending

before the Secretary of the Board, vide order dated 23

rd September, 2004, the writ petition

5

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 time line.

12. The pending representation of the respondent was decided by the Board by a

Resolution dated 9

th June, 2005. The said Resolution noted 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 2

nd 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

4

CWJC No. 14194 of 2001

5

ibid

CIVIL APPEAL NO. 6977 OF 2015

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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 29

th 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 29

th 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 possible to grant promotion to the respondent on the post of Joint Secretary with effect

from 29

th July, 1997.

13. The aforesaid decision taken by the Board vide Resolution dated 9

th June, 2005,

was challenged by the respondent in a writ petition

6. Vide judgement dated 3

rd October,

2007, the learned Single Judge dismissed the said writ petition holding inter alia that

Resolution dated 26

th December, 1991 passed by the Board was only a basic guideline for

determining the Kal Awadhi for promotion from one cadre to the other so that a person

acquires minimum period of experience on the given post before he can be promoted to

the next higher post and such a guideline can only be treated as directory in nature and

not mandatory. The learned Single Judge concurred with the submission made by the

appellants that promotion given to the respondent on 5

th March, 2003, was on account of

certain administrative problems that had cropped up when the State of Bihar was bifurcated

into the present State of Bihar and State of Jharkhand on 15

th November, 2003. It was held

that merely because the respondent had completed the period contemplated under the Kal

6

CWJC No. 9611 of 2005

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Awadhi for the next higher post would not be a criteria to shift his date of promotion from

5

th March, 2003 to the year 1997.

14. Aggrieved by the aforesaid decision of the learned Single Judge, the respondent

filed an intra court appeal. The said judgement was overturned by the Division Bench by

the impugned judgement, observing that the Resolution dated 9

th June, 2005 whereby the

respondent’s representation was rejected by the Board, was unsustainable since it did not

adhere to the Kal Awadhi as mentioned in the Resolution dated 26

th December, 1991. The

respondent who had already superannuated from the post of Under Secretary, was

therefore held entitled to all the benefits of such a post with retrospective effect. It is the

said decision that has been challenged by the appellant Board in the present appeal.

ARGUMENTS ADVANCED

15. Mr. Navin Prakash, learned Counsel for the appellant Board submitted that the

Division Bench has misconstrued the concept of Kal Awadhi which actually denotes

qualifying service and does not mean that immediately upon completion of the period of

three years for promotion from the post of Under Secretary to Joint Secretary, as

contemplated in the Resolution dated 26

th December, 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

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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 29

th July, 1997, there was no vacancy on the post of Joint Secretary till

the actual date of his promotion i.e., 5

th March, 2003 which fact has been completely

overlooked in the impugned judgement. To fortify the aforesaid submission learned

counsel cited decisions of this Court in Nirmal Chandra Sinha vs. Union of India and

Others

7 and Union of India and Another vs. Manpreet Singh Poonam and Another

8.

16. Per contra, Mr. Amit Pawan, learned counsel for the respondent supported the

impugned judgement and submitted that the respondent was rightly promoted to the post

of Under Secretary with effect from 29

th July, 1997 since he had already completed the Kal

Awadhi on the said date, in terms of the Resolution dated 26

th December, 1991 issued by

the Board. He submitted that besides the fact that the respondent falls under the reserved

category and is physically challenged, he was also the senior most member in the cadre

of Under Secretary on the relevant date i.e., 29

th July, 1997. Having completed the Kal

Awadhi period as on the said date, the respondent was qualified and eligible for promotion

and ought to have been immediately considered for promotion with effect from the said

date. He therefore submits that the impugned judgement does not deserve interference.

DISCUSSION ON THE LEGAL POSITION

17. We have perused the pleadings and the records and given our thoughtful

consideration to the submissions advanced by learned counsel for the parties.

7

(2008) 14 SCC 29

8

(2022) 6 SCC 105

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18. It is no longer res integra 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. 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. In this context, we may profitably cite a recent

decision in Ajay Kumar Shukla vs. Arvind Rai

9 where, citing earlier precedents in

Director, Lift Irrigation Corporation Ltd. vs. Pravat Kiran Mohanty and Others

10 and

Ajit Singh and Others vs. State of Punjab and Others

11, a three Judge Bench observed

thus:

41. This Court, time and again, has laid emphasis on right to

be considered for promotion to be a fundamental right, as was held

by K. Ramaswamy, J., in Director, Lift Irrigation Corpn. Ltd. v.

Pravat Kiran Mohanty and Others

9

in para 4 of the report which

is reproduced below:

“4………..There is no fundamental right to

promotion, but an employee has only right to be

considered for promotion, when it arises, in

accordance with relevant rules. From this

perspective in our view the conclusion of the High

Court that the gradation list prepared by the

corporation is in violation of the right of 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 Others v. State of

Punjab and Others

10

, 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 :

9

(2022) 12 SCC 579

10

(1991) 2 SCC 295

11

(1999) 7 SCC 209

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“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 to

any office under the State’.

It has been held repeatedly by this Court that clause

(1) of Article 16 is a facet of Article 14 and that it

takes its roots from Article 14. The said clause

particularises the generality in Article 14 and

identifies, in a constitutional sense “equality of

opportunity” in matters of employment and

appointment to any office under the State. The word

“employment” being wider, there is no dispute that it

takes within its fold, the aspect of promotions to

posts above the stage of initial level of recruitment.

Article 16(1) provides to every employee otherwise

eligible for promotion or who comes within the zone

of consideration, a fundamental right to be

“considered” for promotion. Equal opportunity here

means the right to be “considered” for promotion. If

a person satisfies the eligibility and zone criteria but

is not considered for promotion, then there will be a

clear infraction of his fundamental right to be

“considered” for promotion, which is his personal

right.

“Promotion” based on equal opportunity and

seniority attached to such promotion are facets of

fundamental right under Article 16(1)

* * *

27. In our opinion, the above view expressed

in Ashok Kumar Gupta [Ashok Kumar

Gupta v. State of U.P.

12

, and followed in Jagdish

Lal [Jagdish Lal v. State of Haryana

13

, and other

cases, if it is intended to lay down that the right

guaranteed to employees for being “considered” for

promotion according to relevant rules of recruitment

by promotion (i.e. whether on the basis of seniority

or merit) is only a statutory right and not

a fundamental right, we cannot accept the

proposition. We have already stated earlier that the

right to equal opportunity in the matter of promotion

12

(1997) 5 SCC 201

13

(1997) 6 SCC 538

CIVIL APPEAL NO. 6977 OF 2015

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in the sense of a right to be “considered” for

promotion is indeed a fundamental right guaranteed

under Article 16(1) and this has never been doubted

in any other case before Ashok Kumar

Gupta [Ashok Kumar Gupta v. State of U.P.

11

],

right from 1950.”

19. A similar view has also been expressed earlier hereto in K.V. Subba Rao and

Others vs. Government of Andhra Pradesh and Others

14, Union of India and Others

vs. K.K. Vadera and Others

15, Sanjay Kumar Sinha-II and Others vs. State of Bihar

and Others

16, State of Uttaranchal and Others vs. Dinesh Kumar Sharma

17, Nirmal

Chandra Sinha

6 (supra) and recently in Manpreet Singh Poonam

7 (supra).

20. In State of Bihar and Others vs. Akhouri Sachindra Nath and Others

18, 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 Others vs. Union of India and Others

19, 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 Others vs. State of U.P. and Others

20, 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

recruits appointed validly in the meantime, as decided by this Court

14

(1988) 2 SCC 201

15

(1989) Supp. 2 SCC 625

16

(2004) 10 SCC 734

17

(2007) 1 SCC 683

18

1991 Supp (1) SCC 334

19

1992 Supp (1) SCC 272

20

(2006) 10 SCC 346

CIVIL APPEAL NO. 6977 OF 2015

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in Keshav Chandra Joshi and Others v. Union of India and

Other

18

held that when promotion is outside the quota, seniority

would be reckoned from the date of the vacancy within the quota

rendering the previous service fortuitous. The previous promotion

would be regular only from the date of the vacancy within the quota

and seniority shall be counted from that date and not from the date

of his earlier promotion or subsequent confirmation. In order to do

justice to the promotees, it would not be proper to do injustice to the

direct recruits….…

38. This Court has consistently held that no retrospective

promotion can be granted nor can any seniority be given on

retrospective basis from a date when an employee has not

even been borne in the cadre particularly when this would

adversely affect the direct recruits who have been appointed

validly in the meantime.”

(emphasis added)

21. In Nani Sha and Others vs. State of Arunachal Pradesh and Others

21, 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. In Dinesh Kumar Sharma

16 (supra), the following pertinent observations were

made :

“34. Another issue that deserves consideration is whether the year

in which the vacancy accrues can have any relevance for the

purpose of determining the seniority irrespective of the fact when

the persons are recruited. Here the respondent's contention is that

since the vacancy arose in 1995-1996, he should be given

promotion and seniority from that year and not from 1999, when his

actual appointment letter was issued by the appellant. This cannot

be allowed as no retrospective effect can be given to the order of

appointment order under the Rules nor is such contention

reasonable to normal parlance. This was the view taken by this

Court in Jagdish Ch. Patnaik v. State of Orissa

22

.”

21

(2007) 15 SCC 406

22

(1998) 4 SCC 456

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22. 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. 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 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

14 (supra) which has

emphasised in no uncertain terms the settled position in law that promotion to a post should

only be granted from the date of the promotion and not from the date on which a vacancy

may have arisen. In Ganga Vishan Gujarati vs State of Rajasthan

23, this Court had

reiterated the principle that retrospective seniority cannot be granted to an employee from

23

(2019) 16 SCC 28

CIVIL APPEAL NO. 6977 OF 2015

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the date when she was not even borne on the cadre. This principle has been built upon by

a line of precedents starting with the decision of the Constitution Bench of this Court in

Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra

24, followed in

Akhouri Sachindra Nath

17 (supra), Dinesh Kumar Sharma

16 (supra) and several other

cases.

24. In Pawan Pratap Singh vs. Reevan Singh

25, this Court had taken note of the

earlier decision in Pravat Kiran Mohanty

9 (supra) and summarised the position in the

following words :

45. A consistent line of precedent of this Court follows the

principle that retrospective seniority cannot be granted to an

employee from a date when the employee was not borne on a

cadre. Seniority amongst members of the same grade has to be

counted from the date of initial entry into the grade. This principle

emerges from the decision of the Constitution Bench of this Court

in Direct Recruit Class II Engg. Officers' Assn. v. State of

Maharashtra [Direct Recruit Class II Engg. Officers'

Assn. v. State of Maharashtra

23

. The principle was reiterated by

this Court in State of Bihar v. Akhouri Sachindra

Nath

17

and State of Uttaranchal v. Dinesh Kumar Sharma

16

.

In Pawan Pratap Singh v. Reevan Singh

24

, this Court revisited

the precedents on the subject and observed :

‘45. … (i) 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.

(ii) Inter se seniority in a particular service has to be determined as

per the service rules. The date of entry in a particular service or the

date of substantive appointment is the safest criterion for fixing

seniority inter se between one officer or the 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.

24

(1990) 2 SCC 715

25

(2011) 3 SCC 267

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(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

26

.”

(emphasis added)

[Also refer : P. Sudhakar Rao v. U. Govinda Rao

25 and Union of India and Another v.

Manpreet Singh Poonam and Another

7]

APPLICATION OF THE LAW TO THE FACTS OF THE CASE

25. Coming back to the facts of the instance case, there is no dispute that the

respondent who started his career as a Lower Division Assistant on 1

st June, 1976, was

promoted to the post of Upper Division Assistant on an officiating basis with effect from

23

rd July, 1980, was granted the first accelerated promotion to the post of Section Officer

with effect from 23

rd July, 1982, a second accelerated promotion on the post of Section

Officer (Senior Grade) with effect from 11

th December, 1986, a third accelerated promotion

to the post of Administrative Officer with effect from 25

th July, 1989, a fourth accelerated

promotion to the post of Under Secretary on 9

th July, 1995 and finally, a fifth accelerated

promotion on the post of Joint Secretary on 5

th March, 2003. This goes to show that within

26

(2013) 8 SCC 693

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a span of ten years five months (from 23

rd July, 1982 to 5

th March, 2003) the respondent

was granted five promotions by the appellant-Board.

26. Much emphasis has been laid by learned counsel for the respondent on the

Resolution dated 26

th December, 1991 to contend that once the respondent had completed

the required period of three years mentioned as Kal Awadhi for promotion from the post of

Under Secretary to Joint Secretary, he was automatically entitled for promotion to the next

higher post. The said submission is however found to be devoid of merits.

27. Resolution dated 26

th December, 1991 prescribed a minimum qualifying service

before considering the case of an employee for promotion from one grade to another. The

underlying aim of the said resolution is to ensure that an employee gathers sufficient

experience as may be required before he can be considered for promotion to the next

higher post. 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. 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.

28. We do not find any error in the stand taken by the appellant-Board in terms of its

Resolution dated 9

th June, 2005, whereby the respondent’s plea for shifting his date of

promotion to the post of Joint Secretary from 5

th March, 2003 to 29

th July, 1997 was

CIVIL APPEAL NO. 6977 OF 2015

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rejected for the reason that there was no vacant post of Joint Secretary during the period

between 29

th July, 1997 to 5

th 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 6/8

th 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 24

th 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 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. Even otherwise, 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.

CONCLUSION

30. Given the above legal position, in our view, 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

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Page 17 of 17

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 where the action of the Board was guided by any malafides or colourable exercise

of power. As noted above, the action of the Board was purely guided by administrative

exigencies. The Resolution of the Board dated 26

th 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 29

th July, 1997, instead of 5

th

March, 2003. Such a view is in consonance with the settled legal position and cannot be

faulted.

31. Accordingly, the present appeal succeeds. For the reasons stated aforesaid, the

impugned order dated 20

th October 2011 is set aside and the order dated 3

rd October, 2007

passed by the learned Single Judge is restored. Parties are left to bear their own expenses.

…………………………………. J.

[HIMA KOHLI]

…………………………………… J.

[AHSANUDDIN AMANULLAH]

NEW DELHI;

23

rd JULY, 2024