Supreme Court clarifies promotion eligibility based on qualifying service: Bihar State Electricity Board vs. Dharamdeo Das (2024)

Date of the Judgment: 23rd July 2024

Citation: 2024 INSC 549

Judges: Hima Kohli, J. and Ahsanuddin Amanullah, J.

Can an employee claim a promotion simply because they have completed the minimum qualifying service period? The Supreme Court of India recently addressed this question in a case involving the Bihar State Electricity Board. The court clarified that while employees have a fundamental right to be considered for promotion, completing the qualifying service period does not automatically guarantee a promotion. This judgment clarifies the distinction between eligibility for consideration and an automatic right to promotion.

Case Background

The respondent, Dharamdeo Das, a physically challenged individual belonging to the Scheduled Caste category, was initially appointed as a Lower Division Assistant on a temporary basis on 14th May, 1976, and joined on 1st June, 1976. He was promoted to Upper Division Assistant on an officiating basis on 9th June, 1982. The Bihar State Electricity Board (the Board) decided on 12th August, 1983, that two of the six sanctioned posts of Joint Secretary would be filled by Ministerial Officers of the Board Secretariat.

Das received several accelerated promotions: as Upper Division Assistant (officiating) effective from 23rd July, 1982, as Section Officer effective from 23rd July, 1982, as Section Officer (Senior Grade) effective from 11th December, 1986, and as Administrative Officer on a notional basis from 25th July, 1989. The Board passed a resolution on 26th December, 1991, fixing the qualifying service period (Kal Awadhi) for promotion from Under Secretary to Joint Secretary at three years, with a one-year reduction for Scheduled Caste/Scheduled Tribe candidates.

Subsequently, Das was promoted to Under Secretary on 9th July, 1995, and finally to Joint Secretary on 5th March, 2003. Dissatisfied with the date of his promotion to Joint Secretary, Das filed a writ petition, arguing that he should have been promoted from 29th July, 1997, when the post was allegedly vacant and he had completed the required qualifying service period.

Timeline

Course of Proceedings

Initially, the High Court of Judicature at Patna directed the Board to consider Das’s representation regarding his promotion date. The Board rejected his claim, stating that the Joint Secretary post was not vacant on 29th July, 1997, and that officers from other services were already occupying the posts. A Single Judge of the High Court upheld the Board’s decision, noting that the qualifying service period was a guideline, not a mandatory requirement for immediate promotion. The Single Judge also noted that the promotion on 5th March, 2003, was due to administrative issues after the bifurcation of Bihar.

However, the Division Bench of the High Court overturned the Single Judge’s decision. The Division Bench held that the Board should have adhered to the qualifying service period (Kal Awadhi) mentioned in the Resolution dated 26th December, 1991, and directed that Das be promoted to Joint Secretary with effect from 29th July, 1997, with all consequential benefits. The Board then appealed to the Supreme Court.

Legal Framework

The case primarily revolves around the interpretation of the Board’s Resolution dated 26th December, 1991, which determined the qualifying service period (Kal Awadhi) for promotions. This resolution stated that the qualifying service period for promotion from Under Secretary to Joint Secretary was three years, with a one-year reduction for Scheduled Caste/Scheduled Tribe candidates. The core legal issue is whether this qualifying service period mandates automatic promotion upon completion or merely establishes eligibility for consideration.

The Supreme Court also considered the fundamental right to be considered for promotion under Articles 14 and 16(1) of the Constitution of India, which guarantee equality of opportunity in matters of employment. The Court examined the distinction between the right to be considered for promotion and the right to be promoted, emphasizing that while employees have a right to be considered, there is no fundamental right to promotion itself.

Arguments

Arguments by the Appellant (Bihar State Electricity Board):

• The Board argued that the qualifying service period (Kal Awadhi) is merely an eligibility criterion, not a mandate for automatic promotion.
• The Board contended that completing the qualifying service period makes an employee eligible for consideration but does not compel immediate promotion.
• The Board highlighted that Das had already received five accelerated promotions in 23 years.
• The Board stated that there was no vacancy for the post of Joint Secretary on 29th July, 1997, when Das completed his qualifying service period.
• The Board cited Nirmal Chandra Sinha vs. Union of India and Others [(2008) 14 SCC 29] and Union of India and Another vs. Manpreet Singh Poonam and Another [(2022) 6 SCC 105] to support their argument that completing the qualifying service period does not guarantee promotion.

Arguments by the Respondent (Dharamdeo Das):

• Das argued that he was entitled to promotion from 29th July, 1997, as he had completed the qualifying service period (Kal Awadhi) by that date, as per the Board’s Resolution dated 26th December, 1991.
• Das contended that as a physically challenged person from the reserved category, he was the senior-most member in the cadre of Under Secretary on 29th July, 1997.
• Das maintained that he was qualified and eligible for promotion on 29th July, 1997, and should have been promoted immediately.

Submissions

Issues Framed by the Supreme Court

The Supreme Court framed the following issue:

1. Whether the completion of the prescribed qualifying service period (Kal Awadhi) automatically entitles an employee to promotion to the next higher post.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered several authorities to reach its decision. These authorities were categorized by the legal point they addressed:

On the right to be considered for promotion:

• Director, Lift Irrigation Corporation Ltd. vs. Pravat Kiran Mohanty and Others [(1991) 2 SCC 295] – The Supreme Court held that there is no fundamental right to promotion, but an employee has a right to be considered for promotion when it arises, in accordance with the relevant rules.
• Ajit Singh and Others vs. State of Punjab and Others [(1999) 7 SCC 209] – The Supreme Court emphasized that if a person satisfies the eligibility and criteria for promotion but is not considered, it violates their fundamental right.
• Ajay Kumar Shukla vs. Arvind Rai [(2022) 12 SCC 579] – The Supreme Court reiterated that the right to be considered for promotion is a fundamental right.
• K.V. Subba Rao and Others vs. Government of Andhra Pradesh and Others [(1988) 2 SCC 201] – The Supreme Court held a similar view on the right to be considered for promotion.
• Union of India and Others vs. K.K. Vadera and Others [(1989) Supp. 2 SCC 625] – The Supreme Court held a similar view on the right to be considered for promotion.
• Sanjay Kumar Sinha -II and Others vs. State of Bihar and Others [(2004) 10 SCC 734] – The Supreme Court held a similar view on the right to be considered for promotion.
• State of Uttaranchal and Others vs. Dinesh Kumar Sharma [(2007) 1 SCC 683] – The Supreme Court held a similar view on the right to be considered for promotion.
• Nirmal Chandra Sinha vs. Union of India and Others [(2008) 14 SCC 29] – The Supreme Court held a similar view on the right to be considered for promotion.
• Union of India and Another vs. Manpreet Singh Poonam and Another [(2022) 6 SCC 105] – The Supreme Court held a similar view on the right to be considered for promotion.

On retrospective seniority and promotion:

• State of Bihar and Others vs. Akhouri Sachindra Nath and Others [1991 Supp (1) SCC 334] – The Supreme Court held that retrospective seniority cannot be given to an employee from a date when they were not even in the cadre.
• Keshav Chandra Joshi and Others vs. Union of India and Others [1992 Supp (1) SCC 272] – The Supreme Court held that seniority is reckoned from the date when the vacancy arises in the quota and not from any anterior date.
• Uttaranchal Forest Rangers’ Assn. (Direct Recruit) and Others vs. State of U.P. and Others [(2006) 10 SCC 346] – The Supreme Court reiterated that no retrospective promotion can be granted from a date when an employee was not in the cadre.
• Nani Sha and Others vs. State of Arunachal Pradesh and Others [(2007) 15 SCC 406] – The Supreme Court observed that mere existence of a vacancy is not sufficient for claiming seniority.
• Jagdish Ch. Patnaik vs. State of Orissa [(1998) 4 SCC 456] – The Supreme Court held that no retrospective effect can be given to an appointment order.
• Ganga Vishan Gujarati vs State of Rajasthan [(2019) 16 SCC 28] – The Supreme Court reiterated that retrospective seniority cannot be granted from a date when the employee was not in the cadre.
• Direct Recruit Class II Engg. Officers’ Assn. v. State of Maharashtra [(1990) 2 SCC 715] – The Supreme Court held a similar view on the right to be considered for promotion.
• Pawan Pratap Singh vs. Reevan Singh [(2011) 3 SCC 267] – The Supreme Court summarized the principles on retrospective seniority and promotion.
• P. Sudhakar Rao vs. U. Govinda Rao [(2013) 8 SCC 693] – The Supreme Court held a similar view on the right to be considered for promotion.

Treatment of Authorities

Judgment

Treatment of Submissions

How each authority was viewed by the Court:

The Court relied on the authorities cited to establish the principle that while employees have a fundamental right to be considered for promotion, there is no fundamental right to promotion itself. The Court emphasized that completing the qualifying service period (Kal Awadhi) only makes an employee eligible for consideration, not automatic promotion. The cases cited on retrospective seniority and promotion were used to reinforce the principle that seniority cannot be granted from a date when an employee was not in the cadre. The Court specifically cited Nirmal Chandra Sinha vs. Union of India and Others [(2008) 14 SCC 29] and Union of India and Another vs. Manpreet Singh Poonam and Another [(2022) 6 SCC 105] to support their view that the completion of Kal Awadhi does not guarantee promotion.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following:

• The distinction between the right to be considered for promotion and the right to be promoted.
• The interpretation of the qualifying service period (Kal Awadhi) as an eligibility criterion, not a mandate for automatic promotion.
• The principle that retrospective seniority and promotion cannot be granted from a date when an employee was not in the cadre.
• The administrative exigencies that led to the reduction of Joint Secretary posts.
• The fact that the respondent had already received multiple accelerated promotions.

Sentiment Analysis of Reasons

Fact:Law Ratio

Logical Reasoning

The Court’s reasoning was as follows: The Court first established that the qualifying service period (Kal Awadhi) is an eligibility criterion, not a mandate for automatic promotion. It then distinguished between the right to be considered for promotion and the right to be promoted, emphasizing that while employees have a right to be considered, there is no fundamental right to promotion itself. The Court also considered the factual aspect that there was no vacancy on the post of Joint Secretary on 29th July, 1997, when the respondent completed his qualifying service period. The Court also noted the administrative exigencies that led to the reduction of Joint Secretary posts. Finally, the Court concluded that the Board’s decision was correct and that the respondent was not entitled to promotion from 29th July, 1997.

The Court considered the argument that the respondent was the senior-most member in the cadre of Under Secretary on 29th July, 1997, but rejected it, stating that seniority does not guarantee promotion if the post is not vacant. The Court also considered the argument that the respondent should have been promoted immediately upon completing the qualifying service period but rejected it, stating that the qualifying service period only makes an employee eligible for consideration, not automatic promotion. The Court rejected the Division Bench’s interpretation of the Resolution dated 26th December, 1991, finding it to be directory and not mandatory.

The Court stated, “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.”

The Court also observed, “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.”

The Court further added, “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.”

The Court emphasized that the qualifying service period (Kal Awadhi) is only a basic guideline for determining eligibility for promotion and does not guarantee automatic promotion. The Court also noted that the Board’s decision to reduce the number of sanctioned posts of Joint Secretary was due to administrative exigencies and found no infirmity in the said decision.

The Supreme Court, therefore, concluded that the Division Bench of the High Court had erred in interfering with the Single Judge’s decision, which had correctly upheld the Board’s stance. The Court held that the respondent was not entitled to promotion from 29th July, 1997, and that the Board’s decision to promote him on 5th March, 2003, was valid.

Key Takeaways

• Completion of the qualifying service period (Kal Awadhi) does not automatically entitle an employee to promotion.
• The qualifying service period is merely an eligibility criterion, not a mandate for automatic promotion.
• Employees have a fundamental right to be considered for promotion, but there is no fundamental right to promotion itself.
• Retrospective seniority and promotion cannot be granted from a date when an employee was not in the cadre.
• Administrative decisions regarding the creation or reduction of posts are generally upheld unless there is evidence of malafide or colorable exercise of power.
• Seniority does not guarantee promotion if the post is not vacant.

The judgment clarifies the distinction between eligibility for consideration and an automatic right topromotion. It reinforces the principle that while employees have a right to be considered for promotion, the actual promotion depends on various factors, including the availability of vacancies and the employer’s decision-making process. The court’s analysis of the qualifying service period (Kal Awadhi) as an eligibility criterion rather than a mandate is crucial for understanding the nuances of service law in India. This judgment serves as a significant precedent for cases involving promotion eligibility and clarifies the rights of employees in such matters.