Promotion, as understood under the service law jurisprudence, is advancement in rank, grade or both. Rules of promotion are to be construed liberally as promotional avenues meant to avoid stagnation of employees, and regular promotion not only boosts the morale of the workforce at lower levels but also improves the total environment and work culture in any establishment. Matters pertaining to promotion have been agitated before the Allahabad High Court with all sorts of complexities and dynamics. In this article, we attempt to answer some rudimentary questions on promotion vis-à-vis Service Jurisprudence.
- Is the right to promotion a fundamental right?
While the Courts have recognized the right to be considered for promotion as not only a statutory right but also a fundamental right under Articles 14 and 16(1) of the Constitution of India , there is no fundamental right to the promotion itself.
In the case of Director, Lift Irrigation Corpn. Ltd. v. Pravat Kiran Mohanty, it was held as follows:
“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.”
In the case of Ajit Singh vs State of Punjab, a constitutional bench of the Hon’ble Apex Court held as follows:
“Article 16 (1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be “considered” for promotion. Equal opportunity here means the right to be “considered” for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be “considered” for promotion, which is his personal right. “Promotion” based on equal opportunity and seniority attached to such promotion are facets of fundamental right under Article 16(1).”
- When does promotion become effective?
It is a well-settled principle that promotion becomes effective from the date it is granted, rather than from the date a vacancy arises or the post is created.
Where the employee, who retired and did not serve in the capacity on which he was promoted after his superannuation, was granted notional financial benefits by virtue of the order of the tribunal and the same was upheld by the High Court, the Hon’ble Supreme Court quashed these orders and held as follows:
“…promotion only becomes effective upon the assumption of duties on the promotional post and not on the date of occurrence of the vacancy or the date of recommendation. Considering that respondent No. 1 superannuated before his promotion was effectuated, he is not entitled to retrospective financial benefits associated to the promotional post of Chief Scientific Officer, as he did not serve in that capacity.”
Hence, retrospective promotion is impermissible without enabling provisions.
- For the promotion, is it necessary the educational qualifications be acquired after entry in service?
This short point is no more res integra, as the same has been decided by the Hon’ble Allahabad High Court in the case of Madhavendra Singh vs. State of U.P. and others. It was held that where the rules provided that the educational qualifications must be obtained with the permission of the department, it was not meant to alienate those from being considered who have obtained the said qualifications before entry in service, as the same would be arbitrary.
In another case of Raj Kumar vs. State of U.P. and others, the Hon’ble Allahabad High Court held that:
“Even otherwise the legal principle to be evolved in the case would be, one must have requisite academic qualification of the concerned trade to make him eligible for post on which promotion has to be made and if a candidate possesses requisite qualification as in the present case petitioner possesses the requisite academic qualification being diploma in engineering for promotion on the post of Junior Engineer (Mechanical), such a candidate definitely deserves to be promoted.”
- What is Notional Promotion?
Promotion on a Notional Basis is provided to set off the loss caused to a person in equity on account of some injustice caused to her.
However, the principle, that a person should not suffer injustice on account of delay in appointment, or on account of a court order, and should be given the same benefit after that delay has been rectified in comparison to the person next below in the seniority list i.e. immediately junior to her, has to be balanced with the principle, that the notional promotion cannot relate back and be given retrospectively from the date when a person was not even born in the cadre.
It is further pertinent to note that the decision to give a notional promotion must be examined in the background of facts and circumstances of the case. There are no rigid rules for this.
- Who formulates the Promotion Policy?
In the absence of statutory rules, the employer can formulate a promotion policy since the legislative power in such matters vests with the employer.
The employer, while laying down promotion policy or rule, can specify the area and parameter of weightage to be given in respect of merit and seniority separately so long as the policy is not a colourable exercise of power, nor has the effect of violating any statutory provision.
- If the candidate has not raised any objection to the criterion of promotion, can he challenge the same under the Writ Jurisdiction?
In the case of Kavindra Kumar vs. Deputy Inspector General and others, it was held as follows:
“It is thus held that these writ petitions, challenging the criterion for promotion, are not maintainable at the instance of candidates who have participated in the selection without raising any objection.”
This has further been settled by the Hon’ble Apex Court in the case of Chandra Prakash Tiwari vs. Shakuntala Shukla, as under:
“The law seems to be well settled that in the event a candidate appears at the interview and participates therein, only because the result of the interview is not “palatable” to him, he cannot turn round and subsequently contend that the process of interview was unfair or there was some lacuna in the process.”
Hence, it has been settled that in order to challenge the criterion, the candidate must object beforehand. Such inaction would amount to a waiver. The law in this regard is generally settled that if the result is not palatable to the candidate, he cannot turn around and challenge the procedure or criterion.
However, a challenge can be laid against any change in the rules of the game. It is well settled that the rules of the game cannot be changed during the game. The same applies to the body of law governing the aspect of promotion.
- Can rejection of promotion be challenged under Writ Jurisdiction?
An order rejecting the promotion of the employee can be challenged before the Allahabad High Court under Article 226 of the Constitution of India, with the prayer for setting aside the said order. However, the aggrieved must approach the Hon’ble High Court under Writ Jurisdiction preferably within a maximum of 1 year from the date of grievance/ order. Delay and laches must be avoided at all costs as the High Court may refuse to exercise powers under Article 226 of the Constitution of India. Hence, one must avoid their claim to become stale.
Such orders can be challenged on the grounds, inter alia, a violation of Statutory Provisions, a violation of principles of natural justice, perversity in the order, or the order is completely illegal, irrational, and improper that it cannot be said to have an outcome of a prudent mind.