Mere existence of vacancy per se will not create right in favour of employee for retrospective promotion: SC

Read Judgment: Union of India & Anr. V. Manpreet Singh Poonam Etc.

Pankaj Bajpai

New Delhi, March 9, 2022: While observing that a mere existence of vacancy per se will not create a right in favour of an employee for retrospective promotion when the vacancies in the promotional post is specifically prescribed under the rules, which also mandate the clearance through a selection process, the Supreme Court has held that promotion to Junior Administrative Grade-I (JAG-I) cannot be granted retrospectively and extended to give benefit and seniority from the date of notional vacancy, causing violation of Rule 4 & 7 of the National Capital Territory of Delhi, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli (Civil Service) Rules, 2003.

Stating that no officer has a vested right to a promotional post, which is restricted to that of consideration according to law, a Division Bench of Justice M.M Sundresh and Justice Sanjay Kishan Kaul observed that once an officer retires voluntarily, there is cessation of jural relationship resorting to a “golden handshake” between the employer and employee and such a former employee cannot seek to agitate his past, as well as future rights, if any, sans the prescription of rules, which would include the enhanced pay scale.

Going by the background of the case, both the respondents (Manpreet Singh Poonam) worked with the Union of India (Appellant) holding the post of Junior Administrative Grade-II (JAG-II) officers. Respondent in Civil Appeal No.517 of 2017 retired in the said capacity voluntarily in the year 2010. Respondent in Civil Appeal No.518 of 2017 was promoted on ad hoc basis to Junior Administrative Grade-I (JAG-I) and regularized vide notification dated April 17, 2012 after undergoing a selection process against the vacancies in tune with Rule 4 of the National Capital Territory of Delhi, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli (Civil Service) Rules, 2003 which prescribes 10% as the maximum in the cadre of JAG-I of the total sanctioned strength of the posts in the service which was later increased to 472.

The respondents filed separate applications before the Central Administrative Tribunal (CAT). Despite holding that the post of JAG-I is neither wholly promotional nor an up-gradation, the applications were dismissed on the premise that a conjoint reading of Rule 4 and 7 of the 2003 Rules would disentitle the relief being granted. On writ, the High Court held that Respondent in Civil Appeal No.517 of 2017 is entitled to relief in terms of the Circular No.AB.14017/47/2011-EST (DR) issued by the Department of Personnel and Training (DoPT), which facilitates a retired officer who is otherwise eligible as on the due date to be considered for the benefit of “pay-upgradation”. 

In the case of Respondent in Civil Appeal No.518 of 2017, the High Court reasoned that after keeping the officer without consideration for promotion for a long time, with the decision to grant promotion, there is no justification for denying it from October 1, 2009. Hence, the present appeals. 

After considering the submissions, the Top Court observed that when the rules are specific and clear, there is no need for interpretation which may lead to a case of judicial legislation.

While disapproving the views of the CAT and the High Court that JAG-I is a mere up-gradation of JAG-II, the Top Court observed that differential pay scale along with a process of selection qua suitability fixing eligibility criteria are the factors to determine whether a particular post is the same as the other or a promotional one. 

“On facts, there is no dispute that Respondent in Civil Appeal No.518 of 2017 was given promotion after the successful consideration by the DPC. On such clearance the appellant has rightly fixed the promotion with the year of actual vacancy, as per rules. Thus, the Respondent neither on facts nor on law can claim retrospective promotion, and that too from the year 2009 being the year in which he was placed in the select list against a notional vacancy, especially when the then existing vacancy accrued only in the year 2011, when the JAG-I officers were actually inducted into IAS, against which he was promoted”, added the Court.

Speaking for the Bench, Justice Sundresh observed that a right to promotion and subsequent benefits and seniority would arise only with respect to the rules governing the said promotion, and not a different set of rules which might apply to a promoted post facilitating further promotion which is governed by a different set of rules. 

In the present case, the authority acting within the rules has rightly granted promotion after clearance of DPC on April 17, 2012 with effect from July 1, 2011, when the actual vacancies arose, which in any case is a benefit granted to the Respondent in Civil Appeal No.518 of 2017, added the Bench. 

Accordingly, the Apex Court allowed the appeal and concluded that such exercise of power by the authority of granting retrospective promotion with effect from the date on which actual vacancies arose was based on objective considerations and a valid classification.