The High Court dismissed the State's appeal against an impugned order directing it to consider the respondent for promotion to Under Secretary. The court held that the right to be considered for promotion is a fundamental right, and the State's laches in not convening the promotion committee in time could not deny the employee this consideration.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No.778 of 2019
------
1. The State of Jharkhand.
2. The Principal Secretary, Personnel, Administrative Reforms and Rajbhasa Department, Jharkhand, Ranchi, P.O. Dhurwa, P.S. Dhurwa, District Ranchi.
3. The Dy. Secretary, Personnel, Administrative Reforms and Rajbhasa Department, Jharkhand, Ranchi, P.O. Dhurwa, P.S. Dhurwa, District Ranchi.
…. …. Respondents/Appellants
Versus
Sadan Prasad, Son of Late Yamuna Prasad Resident of Qr No.C/197, Lower Hinoo, P.O. Doranda, P.S. Doranda, District Ranchi
.... .... Petitioner/Respondent
CORAM : HON’BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD ------ For the Appellants : Mr. Sachin Kumar, AAG-II : Mr. Deepak Kr. Dubey, AC to AAG-II
------
ORAL JUDGMENT
07/Dated: 10.11.2022
I.A. No.10728 of 2019
This interlocutory application has been preferred under Section 5 of the Limitation Act for condoning the delay of 102 days in preferring this Letters Patent Appeal.
2. Heard.
3. No counter affidavit has been filed opposing the prayer for condoning the delay.
4. Having regard to the averments made in this application, we
2
are of the view that the appellants were prevented by sufficient cause from preferring the appeal within the period of limitation.
5. Accordingly, I.A.No.10728 of 2019 is allowed and delay of 102 days in preferring the appeal is condoned.
L.P.A. No.778 of 2019
The instant intra-court appeal preferred under Clause-10 of Letters Patent is directed against the order/judgment dated 25.07.2019 passed by the learned Single Judge of this Court in W.P.(S) No.454 of 2014, whereby and whereunder, while allowing the writ petition, the respondents have been directed to consider the case of the writ petitioner for promotion to the post of Under Secretary from the due date, i.e., w.e.f. 05.06.2013 in view of completion of prescribed period (Kalawadhi) in terms of Government resolution contained in Resolution dated 16.01.2012.
6. The brief facts of the case, as per the pleading made in the writ petition, required to be enumerated, are as hereunder:-
The writ petitioner was appointed initially on 12.04.1984 as a Typist. Thereafter, the writ petitioner was appeared in the Limited Competitive Examination for the post of Assistant and after declared successful, he was appointed as an Assistant on 03.08.1989. The writ petitioner was working continuously in different places under the respondent-authorities. As per the provision of Combined Secretariat Service that on completion of 8 years of service in the Assistant Cadre, promotion will be granted in the post of Section Officer and on completion of 8 years of service in the Section Officer, promotion
3
will be granted in the post of Under Secretary.
The writ petitioner was granted promotion on the post of Section Officer after completion of 21 years of service vide notification no.2985 dated 21.05.2010 and directed to join the office of Excise and Prohibition Department, Ranchi. The writ petitioner has given promotion from Assistant to Section Officer after delay of 13 years of service due to laches on the part of respondents-authorities.
The State Government formulated the Kalawadhi & provision for promotion on the post of Under Secretary & Ors. in respect to its employees through resolution dated 16.01.2012, wherein, it has been provided that the minimum Kalawadhi for promotion to the post of Under Secretary will be 6 years. Since the writ petitioner has completed the said criteria and as such, he is entitled to be promoted on higher post of Under Secretary.
The writ petitioner, since has not been considered for promotion even after completion of eight years of service in the Section Officer’s Cadre to the post of under Secretary, while, the other similarly situated employees have been granted such promotion, hence, raise such grievance before the competent authority for redressal of his grievance but having not been redressed, writ petition being W.P.(S) No.454 of 2014 has been filed taking the plea that when the Government has come out with Circular to consider the case of promotion on completion of tenure (Kalawadhi), non-consideration on the part of the State Government cannot deprive the writ petitioner from consideration for promotion to
4
the post of Under Secretary.
The State has disputed the aforesaid contention.
The learned Single Judge has considered the Circular invoked and has disposed of the writ petition remitting the matter back to respondent no.2 in order to take appropriate steps so that the case of the writ petitioner may be considered at an early date by placing it before the ensuing Departmental Promotion Committee for such consideration with effect from the due date, which is the subject matter of the instant intra-court appeal.
7. Mr. Sachin Kumar, learned AAG-II appearing for the Appellants-State has assailed the order passed by the learned Single Judge only on the ground that the respondent-authority, since has directed to consider the case of the writ petitioner for promotion to the post of Under Secretary with effect from the due date, i.e., on completion of Kalawadhi which is nothing but a direction to grant promotion in favour of writ petitioner with retrospective effect and promotion with retrospective effect cannot be said to be permissible, therefore, the order impugned is bad in the eye of law and hence, not sustainable in the eye of law.
8. We have heard learned counsel for the appellants, perused the documents available on record as also considered the finding recorded by the learned Single Judge in the impugned order. 9. This Court, after going through the material available on record as also the finding recorded by the learned Single Judge in the impugned order has found therefrom that the grievance of the writ
5
petitioner of non-consideration of his case of promotion to the post of Under Secretary, even though, he has completed eight years of Kalawadhi in the cadre of Section Officer. 10. The writ petitioner has taken the plea of consideration of promotion to the higher post on the basis of the Government circular issued on 19.03.1993 by the Personnel, Administrative Reforms and Rajbhasha Department, Bihar, appended as Annexure-2 to the writ petition which is also applicable to the State of Jharkhand, wherein, the provision has been made to consider the case of one or the other public servants in advance, i.e., before the post having fallen vacant and as such, what is being contended on behalf of the Stateappellants that there is no provision of granting retrospective promotion is contrary to the aforesaid circular.
It is further evident from the content of the aforesaid circular that if one or the other employee has become eligible to consider for promotion and if such consideration is not there, then in that circumstances, the promotion if granted, will not be construed to be with retrospective effect.
This Court has further found from the notification appended as Annexure-1 to the writ petition that some of the employees working as Section Officer in different Departments, have been granted promotion to the rank of Under Secretary. 11. The State has filed counter-affidavit, wherein, it has been stated that although, the Departmental Promotion Committee was constituted under the Chairmanship of the Jharkhand Public Service
6
Commission, vide notification no.1020 dated 28.02.2011 in pursuant to the resolution no.5161 dated 25.09.2008 issued by the Department of Personnel Administrative Reforms and Rajbhasha, Government of Jharkhand. A list of suitable Officers was sent to the Jharkhand Public Service Commission to convene the meeting of Departmental Promotion Committee for preparing a panel for promotion, vide letter no.8871 dated 07.09.2013 where the name of writ petitioner figured at serial no.25 of the list. But the aforesaid proposal was returned by the Jharkhand Public Service Commission due to some queries and in the meanwhile, the writ petitioner has superannuated.
Therefore, it appears from the plea taken by the Staterespondent, as would appear from paragraph 8 & 9 of the counter affidavit dated 09.07.2014 that the case of the writ petitioner was sent for consideration before the Departmental Promotion Committee but it is due to non-convening of the meeting of Departmental Promotion Committee, the case of the writ petitioner has not been considered and in the meanwhile, he has retired.
Thus, it appears that the writ petitioner was fit to be considered for promotion and as such, his name was sent before the Departmental Promotion Committee for its consideration and if the meeting of the Departmental Promotion Committee had not been conducted and if the writ petitioner in the meanwhile has retired, in that circumstances, the writ petitioner cannot be denied from the chance of consideration of promotion to the higher post, if he
7
otherwise eligible.
12. The position of law is well settled that grant of promotion is not a fundamental right but right to consideration for promotion is a fundamental right, as has been held by the Hon’ble Apex Court in Deepak Agarwal & Ors. Vrs. State of Uttar Pradesh & Ors., (2011) 6 SCC 725, wherein, it has been held at paragraphs 26, 27 & 28 which are quoted hereunder :-
“26. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the “rule in force” on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless, of course, the applicable rule, as in Y.V. Rangaiah case [(1983) 3 SCC 284] lays down any particular time-frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it cannot be accepted that any accrued or vested right of the appellants has been taken away by the amendment.
27. The judgments cited by the learned counsel for the appellants, namely, B.L. Gupta v. MCD [(1998) 9 SCC 223] and N.T. Devin Katti v. Karnataka Public Service Commission [(1990) 3 SCC 157] are reiterations of a principle laid down in Y.V. Rangaiah case [(1983) 3 SCC 284]. All these judgments have been considered by this Court in Rajasthan Public Service Commission v. Chanan Ram [(1998) 4 SCC 202]. In our opinion, the observations made by this Court in SCC
8
paras 14 and 15 of the judgment are a complete answer to the submissions made by Dr. Rajeev Dhavan. In that case, this Court was considering the abolition of the post of Assistant Director (Junior) which was substituted by the post of Marketing Officer. Thus the post of Assistant Director (Junior) was no longer eligible for promotion, as the post of Assistant Director had to be filled by 100% promotion from the post of Marketing Officer. It was, therefore, held that the post had to be filled under the prevailing rules and not the old rules.
28. In our opinion, the matter is squarely covered by the ratio of the judgment of this Court in Dr. K. Ramulu [(1997) 3 SCC 59]. In the aforesaid case, this Court considered all the judgments cited by the learned Senior Counsel for the appellant and held that Y.V. Rangaiah case [(1983) 3 SCC 284] would not be applicable in the facts and circumstances of that case. It was observed that for reasons germane to the decision, the Government is entitled to take a decision not to fill up the existing vacancies as on the relevant date. It was also held that when the Government takes a conscious decision and amends the rules, the promotions have to be made in accordance with the rules prevalent at the time when the consideration takes place.”
Similarly, in the case of Subodh Kumar and Others v.
Commissioner of Police and Others [(2020) 13 SCC 201] , it has been held :-
“ 16. It is equally a settled proposition of law that a candidate has a right to be considered under the existing rules, which implies the “rule in force” on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up
9
earlier year vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion.”
It is evident from the judgment rendered by the Hon'ble Apex Court in Deepak Agarwal and Another v. State of Uttar Pradesh and Others ( Supra ) as also Subodh Kumar and Others v. Commissioner of Police and Others ( Supra ), wherein it has been laid down that the candidate has the right to be considered under the existing rules for promotion and when the candidate has the right only to be considered for promotion, itself suggests that to get promotion is not a matter of right and, therefore, there is no question of chances of promotion to be considered as service conditions. 13. This Court, after considering the factual aspect in detail as above and after going through the order contained in the impugned order has found therefrom that there is no issue of writ petitioner having not eligible for consideration of promotion, rather only ground taken by way of objection on the part of the State authority that the Departmental Promotion Committee since has not convened its meeting and since the writ petitioner has retired, therefore, he cannot be considered for promotion to the higher post and taking the same contrary to the position of law conferring the public servant a right to be considered for promotion to be a fundamental right, in the circumstances, it is due to laches committed on the part of the State, the meeting of DPC could not be convened and as such, for wrong committed by the State, the writ petitioner cannot be denied from the chance of consideration for promotion,
10
The learned Single Judge if disposed of the writ petition while directing the respondents to consider the case of the writ petitioner by placing his case in the ensuing Departmental Promotion Committee, which according to our considered view, cannot be said to suffer from an error.
14. The said finding cannot be considered to be incorrect, for the reason that the writ petitioner cannot be denied from the right of consideration of promotion to the higher post, as per the ratio laid down by the Hon’ble Apex Court in Deepak Agarwal & Anr. Vrs. State of Uttar Pradesh & Ors. (Supra) and Subodh Kumar and Others Vrs. Commissioner of Police and Others ( Supra ). 15. This Court, therefore, is of the view that the order passed by the learned Single Judge suffers from no error.
16. In the result, the instant appeal fails and is, dismissed.
17. In consequent to dismissal of this appeal, I.A. No.10729 of 2019 stands disposed of.
(Dr. Ravi Ranjan, C.J . )
(Sujit Narayan Prasad, J.)
Rohit/ A.F.R.
3 issues framed by the court
Whether a civil servant denied promotion due to administrative delay (laches) has a right to be considered for promotion and granted retrospective effect.
Whether the High Court's order directing promotion consideration for a retired employee is sustainable in law.
Whether the state's failure to convene the promotion committee due to its own delay prevents the employee from claiming promotion.
Colour shows how this judgement treated each authority
Deepak Agarwal & Ors. Vrs. State of Uttar Pradesh & Ors.Relied on¶48
Deepak Agarwal & Ors. Vrs. State of Uttar Pradesh & Ors., (2011) 6 SCC 725 · Who else cites this
Y.V. RangaiahExplained¶49
Y.V. Rangaiah case [(1983) 3 SCC 284] · Who else cites this
B.L. Gupta v. MCDRelied on¶50
B.L. Gupta v. MCD [(1998) 9 SCC 223] · Who else cites this
N.T. Devin Katti v. Karnataka Public Service CommissionRelied on¶50
N.T. Devin Katti v. Karnataka Public Service Commission [(1990) 3 SCC 157] · Who else cites this
Rajasthan Public Service Commission v. Chanan RamExplained¶50
Rajasthan Public Service Commission v. Chanan Ram [(1998) 4 SCC 202] · Who else cites this
Dr. K. RamuluDistinguished¶53
Dr. K. Ramulu [(1997) 3 SCC 59] · Who else cites this
Subodh Kumar and Others v. Commissioner of Police and OthersRelied on¶54
Subodh Kumar and Others v. Commissioner of Police and Others [(2020) 13 SCC 201] · Who else cites this
State of Jharkhand
Sadan Prasad
Sujit Narayan Prasad
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court