NEW DELHI: The Supreme Court has said while the courts have recognised 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.
SC Clarifies: No Retrospective Promotions After Retirement
A bench of Justices P S Narasimha and Sandeep Mehta said that promotion of an employee only becomes effective upon assumption of duties on the promotional post and not on the date of occurrence of the vacancy or the date of recommendation.
"While right to be considered for promotion is a fundamental right, there is no absolute/fundamental right to the promotion itself," the bench said.
Right to Consideration for Promotion Is Fundamental, Not the Promotion Itself: SC
It is a well settled principle thar promotion becomes effective from the date it is granted, rather than from the date a vacancy arises or the post is created, the court said.
"Promotion cannot be retrospectively granted after retirement, as it requires the actual assumption of duties and responsibilities of the promotional post," the bench said.
Upon an appeal by the West Bengal government, the bench reversed the Calcutta High Court's judgment of February 1, 2023 which upheld the West Bengal Administrative Tribunal's order, holding the decision as unsustainable in the eyes of law.
The tribunal held that respondent Dr Amal Satpathi was not entitled to retrospective promotion after his superannuation, but he should be awarded notional financial benefits for the promotional post of Chief Scientific Officer as of his retirement date i.e. December 31, 2016.
Questioning the order, the state government said no financial benefits, even on a notional basis, were admissible to the respondent who never assumed charge of the promotional post.
The state counsel also said the final approval for the Chief Scientific Officer position was granted on January 4, 2017, after the respondent’s superannuation on December 31, 2016.
The employee on the contrary submitted that he had been serving as Principal Scientific Officer since March 24, 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.
He also submitted the inaction, for reasons best known to the officials concerned, led to a significant delay in the promotion process and thus, he was deprived of the rightful claim to the fruits of promotion from the date of occurrence of vacancy as per his entitlement.
The court, referring to Rule 54(1)(a) of the West Bengal Service Rules, said, the employee was recommended for promotion, but the rules precluded 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.
"While we recognised respondent's right to be considered for promotion, which is a fundamental right under Articles 14 and 16(1) of the Constitution of India, he does not hold an absolute right to the promotion itself," the bench said.
In its judgment, the court said in view of the fact that respondent superannuated before his promotion was effectuated, he is not entitled to retrospective financial benefits associated to the promotional post of Chief Scientific Officer, as he did not serve in that capacity.
