Mere Existence Of Vacancy Won’t Create Right For Retrospective Promotion: Supreme Court

New Delhi, Mar 9: The Supreme Court Tuesday said the 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 are specifically prescribed under the rules.

The apex court said there can never be parity between two separate sets of rules while dealing with a case of promotion.

A bench of Justices S K Kaul and M M Sundresh delivered its judgement on the appeals filed by the Centre against the Delhi High Court order of 2014 in a matter relating to promotion to the Junior Administrative Grade (JAG)-I.

“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 are specifically prescribed under the rules, which also mandate the clearance through a selection process,” the bench said.

“In other words, 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,” it said.

The apex court noted it is a “trite law” that once an officer retires voluntarily, there is the cessation of “jural relationship resorting to a ‘golden handshake’ between the employer and employee.”

It said such a former employee cannot seek to agitate his past as well as future rights, if any, sans the prescription of rules.

Referring to an earlier judgement delivered by the top court, the bench said it was clearly laid down that promotion to a post should only be granted from the date of promotion and not from the date on which vacancy has arisen.

The apex court set aside the high court order which had allowed the pleas challenging the Central Administrative Tribunal (CAT) order passed in the matter.

Initially, some petitioners had approached the CAT with the grievance that the concerned authority did not heed their request to treat the date of their promotion to JAG grade-I as January 1, 2009, instead of July 1, 2011, which was actually granted to them.

Thereafter, the petitioners had approached the high court assailing the CAT’s decision in the matter.

The apex court noted that the high court had allowed the plea holding that one of the petitioners before it was entitled to relief in terms of an August 2012 circular 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”.

It also noted that in the case of another petitioner, the high court had said that after keeping the officer without consideration for promotion for a long time, with the decision to grant promotion with effect from July 1, 2011, there is no justification for denying it from October 1, 2009.

Referring to the National Capital Territory of Delhi, Andaman, and Nicobar Islands, Lakshadweep, Daman and Diu, and Dadra and Nagar Haveli (Civil Service) Rules, 2003, the top court said there is no ambiguity in the rules and it is not able to approve the views of the CAT as well as the high court that JAG-I is a mere upgradation of JAG-II.

“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. We feel that such an exercise is not required since the rules themselves are specific. When the rules are specific and clear, there is no need for interpretation which may lead to a case of judicial legislation,” it said.

The bench said the high court also “fell in error” in taking note of the delay in considering the case of the petitioners before it to the promotional post of JAG-I.

“No officer has a vested right to a promotional post, which is restricted to that of consideration according to law,” the bench noted.

“The High Court has committed an error in relying upon a circular, which has got no application at all, particularly in the light of our finding that we are dealing with a case of promotion simpliciter as against upgradation of any nature,” it said.

It said 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 is the benefit granted to one of the officers.