Promotion effective only after assuming duty, not from date of vacancy: SC

The Supreme Court on Wednesday underlined that promotion only becomes effective upon assumption of duties and not from the date of the vacancy or recommendation.

A bench of Justices P S Narasimha and Sandeep Mehta said it was a well-settled principle that promotion became effective from the date it was granted and not the date of the vacancy or creation of the post. 

 

"While the courts have recognised the right to be considered for promotion as not only a statutory right but also a fundamental right, there is no fundamental right to promotion itself," the bench said.

The apex court delivered its verdict on an appeal filed by the West Bengal government and others challenging a February 2023 judgement of the Calcutta High Court.

The high court upheld an order of the West Bengal Administrative Tribunal which directed that a man, though not entitled to retrospective promotion after his superannuation, should be awarded notional financial benefits for the promotional post of chief scientific officer as of his retirement date of December 31, 2016.

The apex court noted the state's contention that no financial benefits, even on a notional basis, were admissible to the man who never assumed charge of the promotional post.

The lawyer appearing for the man contended that he had been serving as the principal scientific officer since March 24, 2008, and could have been promoted to chief scientific officer in 2013, had the department submitted a timely proposal to fill up the vacancy.

The bench noted that upon a perusal of Rule 54(1)(a) of the West Bengal Service Rules, it was clear that promotion cannot be retrospectively granted after retirement, as it require the actual assumption of duties and responsibilities of the promotional post.

It said in this case, since the man had superannuated before the final approval of his promotion, he could not have formally assume the charge of the promotional post.

"While we recognise respondent number 1's (man) 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 bench held.

The top court referred to the legal precedents and said it established that promotion was only effective upon the assumption of duties on the promotional post.

Considering that he superannuated before his promotion was effectuated, said the apex court, he was not entitled to retrospective financial benefits associated with promotional post, as he did not serve in that capacity.

While allowing the appeal, the apex court set aside the judgments passed by the high court and the tribunal.