Smt. Madhubala Agrawal and others vs State of U. P. and others

Rajes Kumar, J.—The petitioners are the widows of the deceased employees. They are seeking a direction for notional promotion of their husbands on the ground that notional promotions have been given to similarly situated employees w.e.f. 24.1.1980. The petitioners have moved applications for notional promotion w.e.f. 24.1.1980 on 23.5.2011, 24.5.2011 and 28.5.2011 respectively, as stated in paragraph 20 of the writ petition. Though the dates of death of the husbands, who were employees, are not mentioned in the writ petition but from the pleadings, it is clear that the claim for notional promotion has been made by the petitioners after the death of their husbands for the first time and it is not the case of the petitioners that their husbands ever moved any applications claiming the notional promotion during their life time. Learned standing counsel submitted that promotion/notional promotion is the vested right of the employees and can only be claimed by them either during the course of employment or even after the retirement but the heirs of the deceased employees had no such vested right to claim notional promotion in case if no such claim has been made by the deceased employees and, therefore, the claim of the petitioners cannot legally be entertained.

I have considered the rival submissions.

From the pleadings of the writ petition, it is clear that notional promotion has not been claimed by the husbands of the petitioners during their life time. It is being claimed for the first time by the petitioners, who are wives of the deceased employees. The question for consideration is whether the notional promotion can be claimed by the heirs of the deceased employees. There is no dispute that the promotion/notional promotion can be given retrospectively. The promotion/notional promotion is the vested light of the employee. The employee can claim promotion at any time during the course of the employment and can also claim notional promotion even after his retirement if the law so permits. The promotion/notional promotion can be given retrospectively also.

There is also no dispute that if the employee claims any promotion/notional promotion during his life time and during the pendency of such claim if he dies such claim can be agitated by the heirs of the deceased.

In my view, if the claim of promotion/notional promotion has not been made by the employee during his life time such claim for the first time cannot be made by the heirs of the deceased. The claim of promotion/notional promotion is the vested right of the employee only. In the present case, the petitioners claimed notional promotion for the first time after the death of their husbands and no such claim has been made by their husbands during their life time. Thus, the petitioners being widows of the deceased employees have no legal right to claim such notional promotion for the first time. However, In case the petitioners'' husbands had ever claimed the notional promotion during their life time, the petitioners are entitled to pursue for such claim. Such liberty is given to the petitioners. With the aforesaid observations, the writ petition stands dismissed.