LexBIHAR STATE ELECTRICITY BOARD AND OTHERS versus DHARAMDEO DAS
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[2024] 7 S.C.R. 763 : 2024 INSC 549 Bihar State Electricity Board and Others v. Dharamdeo Das (Civil Appeal No. 6977 of 2015) 23 July 2024 [Hima Kohli* and Ahsanuddin Amanullah, JJ.] Issue for Consideration Issue arose as to whether promotion ought to be reckoned from the date it is granted or from the date when a vacancy occurs on the subject post or when the post itself is created. Headnotes† Service law – Promotion – Reckoning of – From the date promotion is granted or from the date when a vacancy occurs on the subject post or when the post itself is created: Held: 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 – On facts, respondent-physically challenged and belonged to the Scheduled Caste, appointed as Lower Division Assistant in 1976, thereafter given multiple promotions and finally, was granted accelerated promotion to the post of Joint Secretary vide notification of 2003 – Writ petition by the respondent seeking consideration of his case for promotion to the post of Joint Secretary with effect from 1997 and not from 2003 since the post of Joint Secretary for the reserved category candidate in the Board was vacant from 1997 and his case had not been considered for promotion from the said date, rightly dismissed by the Single Judge of the High Court, however, the Division Bench erred in allowing the same – Single Judge rightly held that merely because the respondent had completed the Kal 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 – Not a case where the respondent was deprived of promotion to the next higher post, nor a case where the action of the Board was guided by any malafides or colourable exercise of power – There was no vacancy to the post of Joint Secretary, on the said post being reduced from six to three – Action of the Board was purely guided by administrative exigencies – Even otherwise, assuming * Author 764 [2024] 7 S.C.R. Digital Supreme Court Reports 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 – Thus, the impugned order set aside and the order passed by the Single Judge restored. [Paras 18, 27-31] Service Law – Promotion – Right to promotion: Held: Right to be considered for promotion has been treated not just as a statutory right but as a fundamental right, at the same time, there is no fundamental right to promotion itself – 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, subject to satisfying the eligibility criteria, as per the applicable rules – Failure to consider an employee for promotion even after satisfying the eligibility criteria would violate his/her fundamental right – However, there is a distinction 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, where line is to be drawn – Thus, 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 u/Arts.14 and 16(1) but such 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 – Constitution of India – Art. 14 and 16(1). [Paras 18, 22] Case Law Cited Nirmal Chandra Sinha v. Union of India and Others [2008] 5 SCR 635 : (2008) 14 SCC 29; Union of India and Another v. Manpreet Singh Poonam and Another [2022] 2 SCR 764 : (2022) 6 SCC 105; Ajay Kumar Shukla v. Arvind Rai [2021] 12 SCR 1178 : (2022) 12 SCC 579; Director, Lift Irrigation Corporation Ltd. v. Pravat Kiran Mohanty and Others [1991] 1 SCR 341 : (1991) 2 SCC 295; Ajit Singh and Others v. State of Punjab and Others [1999] Supp. 2 SCR 521 : (1999) 7 SCC 209; K.V. Subba Rao and Others v. Government of Andhra Pradesh and
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