Bhori Devi vs Union Of India & Ors.

ORDER

“(i)

By an appropriate order or direction the respondents may be directed to give promotion to the applicant on the post of Sr. Stock Verifier w.e.f. from the date his juniors were given promotion in the grade of Sr. Stock Verifier thereby adopting the same yardstick as has been adopted in other similar matters.

(ii)

Cost of the application may also kindly be awarded to the poor applicant; and

Any other order or direction which this Hon’ble Tribunal deems fit and proper may also kindly be passed in the favour of the applicant in the larger interest of the equity justice and law.”

“7.

The question at the very threshold which needs to be determined is whether the relief claimed by the applicant can be granted in the light of the judgment passed by the Hon’ble Supreme Court in the case of Dr. Amal Satpathi (supra) since the applicant has already retired; as such, the relevant extracts of the above cited judgment of the Hon’ble Supreme Court are reproduced as below: -

“15.

The primary question that arises for our consideration in the present appeal is whether respondent No.1, who was recommended for the promotion before his retirement but did not receive actual promotion to the higher post due to administrative delays, is entitled to notional financial benefits of the promotional post after his retirement? xxxxx

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 Das, 2024 SCC Online SC 1768, wherein it was observed as follows:

“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 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 Rai, (2022) 12 SCC 579 where, citing earlier precedents in Director, Lift Irrigation Corporation Ltd. v. Pravat Kiran Mohanty, (1991) 2 SCC 295 and Ajit Singh v. State of Punjab, (1999) 7 SCC 209, a three-Judge Bench observed thus:

“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:

‘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 respondent-writ 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’.” xxxxx

20.

In State of Bihar v. Akhouri Sachindra Nath, 1991 Supp (1) SCC 334, 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 India, reported in 1992 Supp (1) SCC 272, 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. xxxxx

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.” (emphasis supplied)” xxxxx

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 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.

22.

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

8.

The Hon’ble Apex Court’s judgment passed in the case of Dr. Amal Satpathi (supra) has been considered by the Hon’ble High Court of Chhattisgarh at Bilaspur in the case of Jai Prakash Padwar Vs. State of Chhattisgarh & Anr. (WPS No. 3413/2021) in its judgment dated 24.07.2025 and held as below: -

“6.

Taking into consideration the above-stated facts and the law laid down by the Hon’ble Supreme Court, no notional benefits can be extended where promotion is claimed after retirement; therefore, the instant petition is hereby dismissed. No cost(s).”

9.

The Hon’ble High Court of Andhra Pradesh at Amaravati in the case of Illa Ananda Nivas Vs. Asst. Commissioner & Anr. (WP No. 30187 of 2011) vide its order dated 11.07.2025 also considered the above mentioned judgment of the Hon’ble Apex Court passed in Dr. Amal Satpathi (supra) and in the light of the law laid down by the Hon’ble Apex Court dismissed the Writ Petition and held as below (relevant extracts): -

“7.

Recently, the Hon’ble Supreme Court in Government of West Bengal and others Vs. Dr. Amal Satpathi and others reported in 2024 SCC Online SC 3512, held in the following extracted manner: "That even recognizing the promotion 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 promotional post and not on the date of occurrence of the vacancy or the date of recommendation."

8.

After careful persuasive of the judgment of the Hon’ble Supreme Court (referred supra), the promotion only becomes effective on the assumption of duties and the representation of the respondents that the petitioner was superannuated was not denied by the learned counsel for the petitioner. Therefore, the said principle is squarely applicable to the petitioner herein, as he was superannuated. Even assuming that the petitioner is entitled for promotion as claimed by him, he is not entitled to retrospective financial benefits, in view of the judgment of the Hon’ble Supreme Court (referred supra).”

10.

After going through the above mentioned judgments, the crux of the ratio laid down by the Hon’ble Apex Court and followed by the Hon’ble High Court of Andhra Pradesh at Amaravati in the case of Illa Ananda Nivas (supra) and Hon’ble High Court of Chhattisgarh at Bilaspur in the case of Jai Prakash Padwar (supra) is that the promotion only becomes effective on assumption of the duties of the promoted post. In other words, the promotion has to be effectuated and to do so, the employee has to be in service so that he can actually assume the duties on the promotional post and since the Hon’ble High Court of Andhra Pradesh at Amaravati in the above cited judgment in Illa Ananda Nivas (supra) has emphasized that “Even assuming that the petitioner is entitled for promotion as claimed by him, he is not entitled to retrospective financial benefits, in view of the judgment of the Hon’ble Supreme Court (referred supra).”

11.

In the case of Dr. Amal Satpathi (supra), the employee was though not granted retrospective promotion after his superannuation by the Hon’ble High Court at Culcutta yet he was granted notional financial benefits for the promotional post. But the Hon’ble Apex Court quashed the order of the Hon’ble High Court at Calcutta and specifically considered and dealt with the question “whether respondent No.1, who was recommended for the promotion before his retirement but did not receive actual promotion to the higher post due to administrative delays, is entitled to notional financial benefits of the promotional post after his retirement?” Thus, the Hon’ble Apex Court held employee not entitled even to notional financial benefits for the promotional post despite been recommended for promotion before superannuation and also noticing the administrative delay in actually giving him promotion. It needs to be stressed that in that case, the employee was held fit for promotion and was recommended for promotion to Public Service Commission before his retirement, but the department received the final approval for his promotion by 04^th January, 2017, whereas, he superannuated on 30^th December, 2016 i.e. barely 04 days prior. Even in such case, the Hon’ble Apex Court declined the relief on the ground that his promotion was not effectuated as he could not assume the responsibilities of a promoted post because he retired prior to that.

12.

Whereas, in the present case, the applicant has first to get himself declared eligible for him to be even considered for promotion, for which he is seeking modification of the seniority list in the year 2016, which was actually assigned to him way back in the year 2005 and which he never challenged since then. Now the applicant has retired, hence, cannot even be directed to go through the process for promotion and cannot assume the duties of the promotional post. In view of the above position, it is not a fit case for interference by this Tribunal and the same deserves to be dismissed.

13.

Accordingly, in view of the ratio decided by the Hon’ble Supreme Court and the Hon’ble High Courts (as discussed above), all the Original Applications (OA No. 601/2016, OA No. 320/2015, OA No. 708/2015, OA No. 269/2016 and OA No. 575/2016) are dismissed. No order as to costs."