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Judgment
NAMIT KUMAR , J.
The petitioner has invoked the writ jurisdiction of this Court by filing the instant petition under Article 226 of the Constitution of India, seeking issuance of a writ of certiorari for quashing the letter/order dated 02.06.2020 (Annexure P-8), vide which respondent No.3 has rejected the claim of the petitioner for promotion to the post of Secretary, Market Committee, without even considering his case for promotion to the said post, as the order dated 02.06.2020 reflects that respondent No.3 instead of considering his case for promotion against vacant post of Secretary, Market Committee, considered his case for promotion to the post of Superintendent Grade-II and, thereafter, rejected the same on the ground of availability of no post of Superintendent Grad-II with the respondent-Board till his retirement. Further, a writ of mandamus has been sought for directing the respondents to consider the case of the petitioner for promotion to the post of Secretary, Market Committee, with effect from 01.05.2017, i.e., from the date 12th vacancy in the cadre of Secretary, Market Committee fell vacant, with all consequential benefits.
Briefly stated the facts of the case, as have been pleaded in the petition, are that the petitioner was appointed as Typist on 16.10.1986 on regular basis in the Punjab Mandi Board and he joined as such on 28.10.1986. Thereafter, he was promoted to the post of Senior Assistant on 21.12.2011 and lateron, vide office order dated 12.02.2015 (Annexure P-1), the petitioner was given deemed date of promotion as Senior Assistant with effect from 15.10.1992. The next promotion from the post of Senior Assistant is to the post of Secretary, Market Committee and the same is governed by the rules known as 'Punjab State Agricultural Marketing Board (Class II) Service Rules, 1988' and as per the aforesaid Rules, 60% posts in the cadre of Secretary, Market Committee are to be filled by way of promotion and out of slab of 60 vacancies in the quota of promotion, 15 vacancies are to be filled amongst Senior Assistants possessing Bachelor of Arts Degree from a recognised university and having an experience of working as such for a minimum period of 12 years. There are 151 sanctioned posts of Secretary, Market Committee, out of which 23 posts comes to the quota of graduate Senior Assistants. The petitioner became eligible for promotion to the post of Secretary, Market Committee on 15.10.2004 from the quota of Senior Assistants, as per the aforesaid Rules. It has further been pleaded that between 2016-2017, 16 posts of Secretary, Market Committee of Senior Assistants quota, who were possessing Bachelors of Arts Degree from a recognised university and having an experience of working as such for a minimum period of 12 years, fell vacant on the following dates:-
| Sr. No. | Name of Secretary, Market Committee | Post of Secretary, Market Committee falling vacant on account of retirement/promotion. |
|---|---|---|
| 1. | Harpinder Singh | 30.04.2016 (R) |
| 2. | Ramji Dass | 30.04.2016 (R) |
| 3. | Ram Niwas | 30.04.2016 (R) |
| 4. | Manjit Singh | 06.07.2016 (P) |
| 5. | Apinder Singh | 06.07.2016 (P) |
| 6. | Devinder Singh | 15.09.2016 (P) |
| 7. | Darshan Singh | 31.12.2016 (R) |
| 8. | Balwinder Singh | 31.01.2017 (R) |
| 9. | Jaspal Singh | 28.02.2017 (R) |
| 10. | Harpiar Singh | 31.03.2017 (R) |
| 11. | Satpal Singh | 31.03.2017 (R) |
| 12. | Harcharan Singh Kohli | 30.04.2017 (R) |
| 13. | Raghubir Singh | 25.05.2017 (P) |
| 14. | Jagroop Singh | 26.05.2017 (P) |
| 15. | Nirmail Singh | 30.09.2017 (R) |
| 16. | Vinod Kapoor | 31.12.2017 (R) |
Despite the fact that the petitioner was fully eligible for promotion to the post of Secretary, Market Committee and was 12th in the seniority list of Senior Assistants, who were having Bachelors Degree in Arts and had 12 years of service to their credit, however, the respondents did not consider the case of the petitioner for promotion to the post of Secretary, Market Committee. Aggrieved thereby, the petitioner submitted a representation dated 06.06.2017 (Annexure P-6), claiming promotion to the post of Secretary, Market Committee, and Superintendent Grade-II, however, no action was taken by the respondents on the said representation and the petitioner retired from service on attaining the age of superannuation on 31.07.2018. He again submitted a representation dated 25.02.2020 (Annexure P-7) seeking same relief, however, the claim of the petitioner for promotion was rejected by respondent No.3, vide order dated 02.06.2020 (Annexure P-8) without even considering the case of the petitioner for promotion to the post of Secretary, Market Committee. It is the said order which has been impugned by the petitioner in the present petition.
Reply by way of an affidavit of Dalwinderjit Singh, PCS, Additional Secretary, Punjab Mandi Board, SAS Nagar, on behalf of respondents No.1 to 3 has been filed, wherein it has been stated as under:-
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5.That earlier, the minimum experience required for promotion from the post of Senior Assistant to the Post of Secretary Market committee was of 12 years service as Senior Assistant. The petitioner was promoted as Senior Assistant on 21.12.2011 and retired from the post of Senior Assistant on 31.07.2018. Therefore, it is crystal clear that he did not fulfill the above said necessary condition of 12 years of experience which was sine-qua non for promotion to the post of Secretary. Therefore, his entire claim to the post of Secretary is baseless without any rhyme or reasons and it is also illegal.
It would further be apt to submit here that the relevant Service Rules were amended on 08 October, 2018 and as per the amended Rules the minimum experience required for promotion from Senior Assistant to the post of Secretary is of seven years in place of above said 12 years of experience. Therefore, irrespective of this fact that whether any vacant post of Secretary was available or not the present petitioner in no manner could be promoted as Senior Assistant as the law of the day when he retired on 31.07.2018 the required experience was of 12 years and not of 7 years and he did not fulfill this condition of 12 years of experience. The copy of the notification dated 08.10.2018 amending the above said rules has been attached herewith as Annexure-R-1/2
6.That it is pertinent to mention here that in this Seniority list the name of petitioner figured at Sr. No 86 and other employees who were senior to petitioner and were figured at Sr. No.80, 81, 82, 83, 84 in the seniority list were squarely covered under the amended rules and were promoted on 5.12.2018 and 14.2.2019 after completing required experience of 7 years and i.e after retirement of petitioner. Moreover the employees who were junior to petitioner i.e. Harpreet Kaur at Sr. No.88, Tilak Raj at Sr. No.89 and Kulwinder Kaur who was at Sr.No.92 in the Seniority List were also promoted on 14.2.2019 after completing condition of 7 years. Whereas, when the petitioner retired, the 12 years of experience was requirement under the un-amended rules. In no manner he could be promoted as Secretary Market Committee Therefore, it is absolutely irrational, unreasonable and illegal on the part of the petitioner to claim any kind of parity to the above said employees.
7.That, petitioner could only be considered by the respondent for promotion to the post of Superintendent Grade-Il because he fulfilled the minimum required condition of five years of service as Senior Assistant. But, because of the non availability of vacancy of the Superintendent Grade-II with the respondent Board the petitioner could not be promoted. Therefore, the petitioner was granted the ACP pay step up on 4 years of service as Senior Assistant vide office order w.e.f. 22.12.2015 vide office letter No.1150 (2016) dated 19.09.2016 and thus was given absolute legal treatment by the respondent in accordance to the Rules and norms.
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In nutshell, the stand taken by the respondents is that minimum qualifying experience required for promotion from the post of Senior Assistant to the post of Secretary, Market Committee was 12 years as Senior Assistant under the un-amended rules and since the petitioner was promoted as Senior Assistant on 21.12.2011 and retired from service from the post of Senior Assistant on 31.07.2018, therefore, he had not completed the requisite 12 years experience till the date of his retirement, which was sine qua non for promotion to the said post. It has further been stated that the said Rules were amended on 08.10.2018 (Annexure R-1/2) and as per the amended Rules, the minimum experience required for promotion from Senior Assistant to the post of Secretary, Market Committee, was reduced from 12 years to 07 years. However, the said amendment was made after the retirement of the petitioner and could not confer any right of promotion upon him. It was further stated that the petitioner's name figured at Sr. No.86 in the seniority list of Senior Assistants and other employees, who were senior to the petitioner and figured at Sr. Nos.80, 81, 82, 83 and 84 in the seniority list, were promoted on 05.12.2018 and 14.02.2019 under the amended rules and after completing required experience of 07 years, i.e., after the retirement of the petitioner, whereas, the employees, junior to the petitioner, i.e., Harpreet Kaur (Sr. No.88), Tilak Raj (Sr. No.89) and Kulwinder Kaur (Sr. No.92) were promoted on 14.02.2019. All these promotions were made as per the amended Rules, whereby the experience clause was reduced from 12 years to 07 years, whereas, when the petitioner retired, 12 years of experience was required under the un-amended rules.
Learned counsel for the petitioner has submitted that the petitioner was fully eligible for promotion to the post of Secretary, Market Committee, however, his claim for the said promotion has not even been considered by the respondents and vide order dated 02.06.2020 (Annexure P-8), his claim for promotion from the post of Senior Assistant to that of Superintendent Grade-II has been considered and rejected on the ground that before the retirement of the petitioner on 31.07.2018, there was no vacant post. He has further submitted that since the petitioner attained eligibility for promotion to the post of Secretary, Market Committee, with effect from 15.10.2004 when he completed 12 years of service as Senior Assistant as he was granted deemed date of promotion as Senior Assistant with effect from 15.10.1992 and, therefore, he was entitled to be promoted to the said post against 12th vacancy in his quota which has arisen on 30.04.2017 and, therefore, the respondents may be directed to consider his claim for promotion to the said post with all consequential benefits.
Per contra, learned counsel for the respondents, while referring to the averments made in the written statement, has submitted that the petitioner retired from service on attaining the age of superannuation on 31.07.2018 and no person junior to him was promoted prior to his retirement and mere occurrence of vacancy in his quota does not confer any right of promotion to him.
I have heard learned counsel for the parties and perused the record with their able assistance.
The facts are not in dispute that the petitioner initially joined the service as Typist on 16.10.1986 on regular basis and was further promoted to the post of Senior Assistant on 21.12.2011 and vide order dated 12.02.2015 (Annexure P-1), he was granted deemed date of promotion as Senior Assistant with effect from 15.10.1992. Consequently, on completion of 12 years of service as Senior Assistant, he became eligible for promotion to the said post on 15.10.2004, as per 'Punjab State Agricultural Marketing Board (Class II) Service Rules, 1988'. Although, the petitioner became eligible for promotion to the post of Secretary, Market Committee on completion of 12 years of service on 15.10.2004, keeping in view his deemed date of promotion as Senior Assistant, however, various persons senior to the petitioner were awaiting promotion as he was at Sr. No.86 in the seniority list of Senior Assistants. Moreover, the persons senior to him at Sr. No.80 to 84 were promoted on 05.12.2018 and 14.02.2019 and persons junior to him, namely Harpreet Kaur (Sr. No.88), Tilak Raj (Sr. No.89) and Kulwinder Kaur (Sr. No.92), were promoted on 14.02.2019, only after the retirement of the petitioner. The petitioner could only be considered for promotion to the post of Superintendent Grade-II, as he fulfilled the minimum required condition of 05 years of service as Senior Assistant. However, as no vacancy was available, he could not be promoted and was accordingly granted ACP step-up on completion of 04 years service as Senior Assistant, w.e.f. 22.12.2015, in accordance with applicable rules.
In the present case, the petitioner is claiming promotion to the post of Secretary, Market Committee w.e.f. 01.05.2017, i.e., the date on which the 12th vacancy in the cadre of Secretary, Market Committee, fell vacant. However, the petitioner could not be considered against the said vacancy as persons senior to him at Sr. No.80 to 84 in the seniority list of Senior Assistants, were available and eligible for promotion. The law is well-settled that an employee cannot seek promotion from the date of occurrence of vacancy or on account of acquiring eligibility on the promotional post. The Hon'ble Supreme Court in Bihar State Electricity Board and others Vs. Dharamdeo Das : 2024 SCC Online SC 1768, has held that promotion is effective from the date it is actually granted and not from the date when a vacancy occurs on the subject post or when the post is created. Promotion becomes effective only upon the actual assumption of duties, rather than the date of occurrence of vacancy or recommendation. While employees have a right to be considered for promotion, they have no fundamental right to promotion itself, nor to retrospective promotion. The relevant paragraphs of the said judgment are thus :-
"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 vs. Arvind Rai (2022) 12 SCC 579 where, citing earlier precedents in Director, Lift Irrigation Corporation Ltd. vs. Pravat Kiran Mohanty and Others (1991) 2 SCC 295 and Ajit Singh and Others vs. State of Punjab and Others (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 and Others 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.
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21.In Nani Sha and Others vs. State of Arunachal Pradesh and Others : (2007) 15 SCC 406, it was observed that mere existence of a vacancy is not sufficient for an employee to claim seniority and the date of actual appointment has to be in accordance with the prescribed procedure. In Dinesh Kumar Sharma (supra), the following pertinent observations were made :
"34.Another issue that deserves consideration is whether the year in which the vacancy accrues can have any relevance for the purpose of determining the seniority irrespective of the fact when the persons are recruited. Here the respondent's contention is that since the vacancy arose in 1995-1996, he should be given promotion and seniority from that year and not from 1999, when his actual appointment letter was issued by the appellant. This cannot be allowed as no retrospective effect can be given to the order of appointment order under the Rules nor is such contention reasonable to normal parlance. This was the view taken by this Court in Jagdish Ch. Patnaik v. State of Orissa : (1998) 4 SCC 456."
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30.Given the above legal position, in our view, the Division Bench of the High Court ought to have refrained from interfering with the findings returned by the learned Single Judge who has 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. This is not a case where the respondent has been deprived of promotion to the next higher post, nor is it a case where the action of the Board was guided by any malafides or colourable exercise of power. As noted above, the action of the Board was purely guided by administrative exigencies. The Resolution of the Board dated 26th December, 1991 for fixing the Kal Awadhi was only directory in nature and cannot be treated as statutory for the respondent to have claimed an entitlement to promotion reckoned from 29th July, 1997, instead of 5th March, 2003. Such a view is in consonance with the settled legal position and cannot be faulted."
The Hon'ble Supreme Court in Nirmal Chandra Sinha v. Union of India & Ors., 2008(2) SCT 675 has held that a promotion takes effect from the date it is granted, and not from the date the vacancy occurs or the post is created. The operative part of the said judgment, reads as follows:-
"7.It has been held in a series of decisions of this Court that a promotion takes effect from the date of being granted and not from the date of occurrence of vacancy or creation of the post vide Union of India and others v. K.K. Vadera and others, 1989 Supp (2) SCC 625, State of Uttaranchal and another v. Dinesh Kumar Sharma, 2007(1) SCT 393 : 2007(1) SCC 683, K.V. Subba Rao v. Government of Andhra Pradesh, 1988(2) SCC 201, Sanjay K. Sinha & others v. State of Bihar and others, 2004(3) SCT 512 : 2004(10) SCC 734 etc."
To the same effect is the judgment of Division Bench of this Court in Union Territory, Chandigarh Administration and Others v. Tarlochan Singh and Others, 2014(3) SCT 330, wherein it has been held as follows:-
"19.In view of the various judgments referred to above, we find that a person is not entitled to seek promotion from the day vacancies arises. It is for the employer to initiate the process of promotion and to fill up the posts, keeping in view its requirements. The employee has no right to claim promotion from a particular date or for a direction that the vacancy in the promotional post should be filled up. However, if the decision of the employer is to fill up the promotional post is actuated by the considerations other than administrative, such action or inaction can be subjected to the judicial review, but there cannot be any direction to grant promotion from the date the vacancy arises. However, in case, an Officer is given Current Duty Charge or promoted on adhoc basis, he shall be entitled to the pay of the promoted post as has been held in Arindam Chattopadhyays case (supra) and State of Haryana v. P.K. Grover, (1983) 4 SCC 291 : AIR 1983 Supreme Court 1060."
Lastly, the Hon'ble Supreme Court in I.Chuba Jamir and others Vs. The State of Nagaland and others, 2010(1) SCT 183, held that mere eligibility does not confer any right for promotion. Para 19 of the said judgment reads thus:-
"19.We may also add here that the validity and legality of the Government Order and the Notification effecting the encadrement of the post held by respondent no.3 in the PWD and Housing Department with the E and S Service does not seem to have been squarely challenged before the High Court. One can understand that the Court, on scrutiny, might find that the encadrement was wrong and illegal. In that case the Court would undoubtedly strike down the encadrement resulting in the posting of respondent No. 3 as Assistant Director in the E & S Service notwithstanding the fact that the decision was taken at the highest level in the government and the notification was issued with the approval of the highest government functionary. But the learned Single Judge accepted the validity of the encadrement and yet proceeded to direct the deemed promotion of the appellants-writ petitioners as Assistant Directors from a date prior to the appointment of respondent no.3 as Assistant Director. The only ground for passing such extra ordinary order was that when vacancies arose in the post of Assistant Director the appellants-writ petitioners were eligible for promotion. It is elementary and well settled that mere eligibility does not confer any right for promotion. The direction of the learned Single Judge, viewed from any angle was unsustainable. The Division Bench was perfectly right in setting aside the order of the learned Single Judge."
Keeping in view the facts of the case, foregoing reasons and the settled position of law, the present petition is hereby dismissed, with no order as to costs.