Ramesh Kumar Thakur Vs the State of Hp and Another

2025:HHC:9796

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CWP No.3256 of 2025 Decided on: 9^th April, 2025

_________________________________________________________________ Ramesh Kumar Thakur ....Petitioner Versus State of H.P. & Anr. …Respondents _________________________________________________________________

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Coram

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Ms. Justice Jyotsna Rewal Dua

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1 Whether approved for reporting?

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_________________________________________________________________ For the petitioner: Mr. H.C.Sharma, Advocate. For the respondents: Mr. Anup Rattan, Advocate General with Mr. L.N.Sharma, Additional Advocate General.

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Jyotsna Rewal Dua, Judge

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Notice. Mr. L.N. Sharma, learned Additional

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Advocate General, appears and waives service of notice on behalf of the respondents.

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2. More than seven years after his retirement, petitioner has instituted this writ petition seeking promotion to the post of Ranger.

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3. Petitioner’s case is that he was due for promotion

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to post of Ranger in the year 2016. Meeting of Departmental

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1 Whether reporters of Local Papers may be allowed to see the judgment? yes

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Promotion Committee was also convened for making promotions to the post of Ranger. Petitioner was liable to be promoted. Petitioner was deliberately and intentionally not included for promotion to the post of Ranger by the DPC. He accordingly, seeks direction to the respondents that his case be considered for promotion to the post of Ranger from the due date i.e. the year 2016 alongwith all consequential benefits.

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4 At this juncture, it will be appropriate to refer to Government of West Bengal & Ors. vs. Dr. Amal Satpathi & Ors.² , whereunder it was held that employee whose promotion was not effectuated before his retirement would not be entitled to retrospective promotion and the notional benefits attached to the promotion.

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In the aforesaid case, learned Tribunal had acknowledged that respondent No.1 (therein) had been duly recommended for promotion before his superannuation, which was delayed due to procedural obstructions beyond his control. Therefore, while actual promotion was not acceded to, the learned Tribunal directed that respondent No.1 should

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2Civil Appeal No.13187 of 2024 decided on 27.11.2024.

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be granted notional financial benefits of promotional post to ensure pensionary benefits commensurate with the promotional post. The order passed by learned Tribunal was assailed by appellant before Hon’ble High Court. The Hon’ble High Court dismissed the writ petition, concurring with the learned Tribunal that retrospective promotion was impermissible but the notional financial benefits were justifiably given, since, no fault could be attributed to respondent No.1.

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The State assailed the aforesaid decision before the Hon’ble Apex Court. Appellant-State relied upon several pronouncements, including Union of India vs. N.C. Murali³ , to contend that without a specific rule entitling employees to promotion from the date of vacancy, right to promotion arises only when it is actually effected. Whereas, submission on behalf of respondent No.1 was that he could have been promoted to post of Chief Scientific Officer years earlier; had the Department submitted a timely proposal to fill up the vacancy, had the Department officials acted with promptitude and diligence, respondent No.1 would have in all probability

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3(2017) 13 SCC 575

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received the promotion long before his retirement.

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Hon’ble Apex Court, inter alia , noticed Rule 54(1)(a) of the West Bengal Service Rules and reiterated well-

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settled principle that promotion becomes effective from the date it is granted, rather than from the date a vacancy arises or the post is created. There is only right to be considered for promotion, there is no fundamental right to the promotion itself. 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. Relevant paras from the decision are as under:-

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“19. It is a well settled principle that promotion becomes effective from the date it is granted, rather than from the date a vacancy arises or the post is created. While the Courts have recognized 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. In this regard, we may gainfully refer to a recent decision of this Court in the case of Bihar State Electricity Board and Others v. Dharamdeo Das⁴ , wherein it was observed as follows:

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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

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42024 SCC OnLine SC 1768

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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 v. Arvind Rai⁵ where, citing earlier precedents in Director, Lift Irrigation Corporation Ltd. v. Pravat Kiran Mohanty⁶ and Ajit Singh v. State of Punjab⁷ , a three-Judge Bench observed thus:

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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 in para 4 of the report which is reproduced below:

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‘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 respondentwrit 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.’

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42. A Constitution Bench in Ajit Singh v. State of Punjab, 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:

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‘22. 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

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5(2022) 12 SCC 579

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6(1991) 2 SCC 295

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7(1999) 7 SCC 209

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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:

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‘there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State’.

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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).

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* * *

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27. In our opinion, the above view expressed in Ashok Kumar Gupta [Ashok Kumar Gupta v. State of U.P.⁸ , and followed in Jagdish Lal [Jagdish Lal v. State of Haryana⁹ , 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

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8(1997) 5 SCC 201

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9(1997) 6 SCC 538

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cannot accept the proposition. We have already stated earlier that the right to equal opportunity in the matter of promotion 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.], right from 1950.’

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………………………………………

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“20. In State of Bihar v. Akhouri Sachindra Nath¹⁰ , 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 v. Union of India¹¹ , 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) v. State of U.P¹² , in the following words:

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‘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 in Keshav Chandra Joshi v. Union of India held that when promotion is outside the quota, seniority

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101991 Supp (1) SCC 334

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111992 Supp (1) SCC 272

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12(2006) 10 SCC 346

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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 promotes, it would not be proper to do injustice to the direct recruits……

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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 validity in the meantime.”

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(emphasis supplied)”

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20. In the instant case, it is evident that while respondent No. 1 was recommended for promotion before his retirement, he could not assume the duties of the Chief Scientific Officer. Rule 54(1)(a) of the West Bengal Service Rules, clearly stipulates that an employee must assume the responsibilities of a higher post to draw the corresponding pay, thus, preventing posthumous or retrospective promotions in the absence of an enabling provision.

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21. While we recognize respondent No.1’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 legal precedents discussed above establish that promotion only becomes effective upon the assumption of duties on the

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promotional post and not on the date of occurrence of the vacancy or the date of recommendation. Considering that respondent No. 1 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.

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22 . As a result of the above discussion, the judgment dated 1st February, 2023 passed by the High Court of Calcutta and the judgment dated 26th June, 2019 passed by the Tribunal are unsustainable in the eyes of law and are hereby reversed and set aside.”

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Thus, Hon’ble Apex Court while recognizing respondent’s (therein) right to be considered for promotion, held that there is no absolute right to promotion itself. Promotion becomes effective upon assumption of duties on promotional post and not on date of occurrence of vacancy or recommendation for promotion. Respondent (therein) having superannuated before his promotion was effectuated, he was not entitled to financial benefits associated with the promotional post as he did not serve on the promotional post. There cannot be a retrospective promotion in absence of an enabling provision.

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5. The ratio of aforesaid decision applies to the facts of the instant case. Even assuming that petitioner had

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become eligible for promotion to the post of Ranger in year 2016 i.e. prior to his superannuation on 31.08.2018. It was

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for the petitioner to seek appropriate remedy at the relevant time. Petitioner did not raise any grievance against not granting him promotion to the post of Ranger w.e.f. the year 2016, prior to his superannuation on 31.08.2018. He remained quiet and has raised the issue seven years after his superannuation without giving any justification for the delay and laches. Petitioner’s claim for retrospective promotion seven years after his retirement is not justifiable, at this stage.

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For the aforesaid reasons, I find no merit in the present petition. The same is accordingly dismissed.

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Pending miscellaneous application(s), if any, also to stand disposed.

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Jyotsna Rewal Dua Judge

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April 9, 2025 R.Atal

Ramesh Kumar Thakur v. the State of Hp and Another

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Ramesh Kumar Thakur v. the State of Hp and Another

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