In Special Leave Petition (Civil) No.18890 of 2021-SC- Promotion as channel to reach higher level is only for those already belonging to service and not available to persons from open market: SC Justices Uday Umesh Lalit, Pamidighantam Sri Narasimha & S. Ravindra Bhat [26-04-2022]

Tulip Kanth

New Delhi, April 27, 2022: The Supreme Court has observed that promotion to the next higher level is from and amongst those who are at a lower level in the service. The avenue of promotion is not available to persons from the open market.

While considering an appeal pertaining to the recruitment to the posts of Deputy Collectors, the Top Court said, “The promotion as a channel to reach the higher level is only available to the persons already belonging to the service. In normal circumstances, the promotion would go by the concept of merit linked with seniority subject to suitability.”

In this case, in the Graduate Level (Special) Competitive Examination held in the year 1994 for filling up the posts of Cooperative Development Officers, the then Bihar Public Service Commission recommended the name of the appellant, who was at serial No.98 in the merit list, under Scheduled Tribe (ST) category. 

The claim that the appellant belonged to ST category (Gond) was supported by a Certificate issued by the Scrutiny Officer, Sonpur (Saran) which now falls in the newly carved State of Bihar after reorganization of States. Later, an appointment letter was issued to the selected candidates including the appellant. The appropriate entry in the service book shows the name and category of the appellant as belonging to ST (Gond). After reorganization of the States, the appellant’s service was allocated to the successor State of Jharkhand and since then the appellant had been in the service of the State of Jharkhand.

Later, an advertisement was issued by the Jharkhand Public Service Commission for filling up the posts of Deputy Collectors through limited departmental examination. The said Advertisement however, prescribed that the benefit of reservation would be extended only to those who submit the appropriate caste Certificate from the Sub-Divisional Officer posted in the State of Jharkhand. The appellant having offered his candidature for the limited departmental examination, the same was forwarded to the Commission. But, in the results of the examination, the appellant was declared unsuccessful though he had secured 123.68 marks as against the cut-off at 113.70 for ST category. The appellant challenged his non-selection by filing Writ Petition which was allowed by the Single Judge of the High Court and the Jharkhand Public Service Commission was directed to consider the case of the petitioner for appointment to the post of Deputy Collector.

When the Commission and State of Jharkhand appealed before the Division Bench, it was held that 25% of posts to be filled through the limited competitive examination would be by way of fresh appointment and as such, the appellant could not rely upon the provisions of Sections 72 and 73 of the Bihar Reorganization Act, 2000. Since the appellant had failed to comply with condition No.13 of the Advertisement and since there was no certificate issued by any of the competent authorities that he belonged to ST (Gond) category in State of Jharkhand, the appellant could not be said to be belonging to the reserved category of STs for the purposes of limited departmental examination.Aggrieved, the appellant filed the present appeal.

The Top Court observed that in order to encourage meritorious candidates who may be comparatively junior in service, a window of opportunity is opened through limited departmental examination. Those who pass the examination are entitled to have an accelerated promotion. This process does not change the character of movement to the higher post and it continues to be a promotional channel. 

According to Justice Uday Umesh Lalit, the Single Judge of the High Court was therefore right in allowing the writ petition. The underlined portion from the order passed by the Single Judge showed that the matter was considered in the correct perspective. The Division Bench of the High Court was not justified in concluding that limited departmental examination was nothing but direct recruitment from the open market.

Referring to the judgment of the Top Court in Pankaj Kumar v. State of Jharkhand, Justice Lalit opined that the appellants belonged to a particular community or tribe which was specified in the erstwhile State of Bihar as Scheduled Castes/ Scheduled Tribes when they entered public service in the erstwhile State of Bihar. The appellants in both the cases were allocated to the service under State of Jharkhand though they belonged to the areas which after re-organization are now part of the successor State of Bihar. By virtue of Sections 73 and 74 of the Act, they could certainly claim benefit in the service under the newly carved State of Jharkhand.

On the strength of the view taken in Pankaj Kumar’s Case (Supra), the entitlement in a fresh service in State of Jharkhand as well as in accordance with the view taken in the instant case, the Bench observed that the entitlement in the limited departmental examination in State of Jharkhand was definitely made out. The basis for their entitlement was primarily because of Sections 73 and 74 of the Bihar Reorganization Act, 2000.

It was noted that Paragraph 55 in Pankaj Kumar’s Case(Supra) is capable of being read as conferring entitlement on the wards or the progeny of the appellants in State of Jharkhand alone where in contradistinction to their lineage, they can claim to have connection only through their parents and the effect of the provisions of the Act.

The Top Court also stated that the entitlement of the progeny or the wards of the appellant in the State of Jharkhand had not strictly arisen for consideration in Pankaj Kumar’s Case (Supra). In the Court’s view, the issue, if any, can and must be gone into in detail in an appropriate case.

In his concurring opinion, Justice S.Ravindra Bhat observed that there is an obligation on the part of Parliament, to provide clarity about the kind of protection, regarding the status of such individuals forced to choose one among the newly reorganized states, and ensure that they are not worse off as a result of reorganization. 

Justice Bhat further opined that the duty to provide clarity and protection,has to be consistent i.e. in the case of one state’s reorganization, the protection should not be greater than in the case of reorganization of another state. That would defeat the command of Articles 14 and 15 (1). 

In his opinion, this duty stems from a co-joint reading of Part I (Articles 1 to 4), Articles 14, 15(1), 341, and 342 of the Constitution, and the overarching concern that the individual should not be worse off, due to disruption not of her or his making. The duty of Parliament in such cases, is a Constitutional obligation, to ensure that no one individual or group is disadvantaged.

Justice Bhat also showed his agreement with Justice Lalit’s opinion that the observations in Pankaj Kumar’s Case (Supra) which went beyond what was required to be decided, cannot be considered as its ratio and there can be myriad situations which may arise directly for decision. Each such situation needs to be examined, having regard to the legal regime in question. Justice Bhat mentioned that the instances of decided cases had inevitably been in the context of reservations in public employment (Article 16). However, there may arise, possibly, in the future, other kinds of disputes, which this court should be careful not to pre-judge without careful scrutiny, he added.

Thus, the Top Court  allowed this appeal, set aside the judgment passed by the Division Bench of the High Court and restored the judgment passed by the Single Judge of the High Court.