Right to be considered for promotion is a fundamental right, rules Calcutta HC

KOLKATA: The Calcutta High Court has recently ruled that an employee has no right to promotion, but does have a fundamental right to be considered for promotion.

The court was hearing a writ petition seeking direction to accept the recommendation made for promotion in the favour of the petitioner.

“It is always the sole and exclusive decision of the employer whether to promote an employee or not. The decision of the employer ought not to be interfered with in a casual manner. After all, the petitioner cannot assert promotion as a matter of right.” It held while disposing of the writ petition.

Further, the court also held that promotion is a normal incidence of service and though a person has no right to be promoted he certainly has a fundamental right to be considered for promotion.

The court also opined that the promotional post generally has greater responsibility as compared to the feeder post and that promotion is granted to motivate a person to excel in his work. A greater position results in a better salary which serves as a catalyst for employees to enhance their performance in service.

FACTS

The petitioner in this case was serving as an Associate professor and retired in 2010, and was also considered for promotion but retired before the promotion was finalized.

Meanwhile, there were disciplinary proceedings initiated against him while he was in service, and these proceedings continued even after his retirement. Further, a writ petition was filed by the petitioner in 2017, wherein the Hon’ble Calcutta High Court directed the disciplinary authority to halt the disciplinary proceedings and provide the petitioner with the service benefits that were previously denied. The High Court also issued a directive to the respondent, stating that if the Board of Directors grants the petitioner a promotion, they must also ensure that all outstanding salaries are paid to him.

The Governing Council however denied promotion to the petitioner due to poor academic performance and insufficient scientific progress. Accordingly, the applicant filed a writ petition against the denial of his promotion by the respondent.

ARGUMENTS

The counsel for the petitioner argued that for promotion from his grade, the recommendation is not required to be placed before the Governing Council. He further argued that there was no further scope for approval of the recommendation already made by the Selection Committee.

The counsel for the petitioner also contended that refusal on the part of the authority to promote the petitioner in terms of the recommendation made was mere harassment, humiliation, institutional bias and a continuous wrong committed towards the petitioner.

However, the counsel for the institute argued that the recommendation of the Selection Committee is not final and that the recommendation is necessarily required to be placed before the Governing Council for approval.

Further he argued that unless and until the Governing Council approves the recommendation of the Selection Committee, the recommendation cannot be given effect to.

The institute also relied upon Manohar -versus- State of Maharashtra (2012) 13 SCC 14 wherein the Court while explaining the meaning of the word ‘recommendation’ held that recommendation is not a mandate.

DECISION

A single judge bench of the Calcutta High Court comprising of Justice Amrita Sinha after hearing both the parties held that the basic principle of promotion is that it is to be implemented only after internal and external assessment of the employee’s records, recommendations, and approval of the specific promotion by the appropriate authority.

This further means that the recommendation is not final till the same is approved by the competent authority.

The court also held that there has not been any illegality or arbitrariness, bias, or mala fide on the part of the employer in declining promotion to the petitioner.

In conclusion, the court held that it is always the sole and exclusive decision of the employer whether to promote an employee or not and the decision of the employer ought not to be interfered with in a casual manner. Afterall, the petitioner cannot assert promotion as a matter of right.