Bilaspur, Chhattisgarh v. 1. State Of Chhattisgarh Through Secretary, Revenue And Disaster Management Department, Mantralaya, Mahanadi Bhawan
Case Details
1 SIDDHANT TAMRAKAR Digitally signed by SIDDHANT TAMRAKAR Date: 2025.06.24 13:28:34 +0530 2025:CGHC:26579 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 3530 of 2018 Mathura Prasad Kashyap S/o S/o Shri Bedilal Aged About 63 Years R/o Masturi, Tahsil- Masturi, District- Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh --- Petitioner(s) versus 1. State Of Chhattisgarh Through Secretary, Revenue And Disaster Management Department, Mantralaya, Mahanadi Bhawan, Naya Raipur, District- Raipur, Chhattisgarh., District : Raipur, Chhattisgarh 2. State Of Chhattisgarh, Through Deputy Secretary, Revenue And Disaster Management Department Mantralaya, Mahanadi Bhawan, Naya Raipur, District- Raipur, Chhattisgarh., District : Raipur, Chhattisgarh 3. Collector, Bilaspur, District- Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh 4. Additional Collector, Office Of Collector Bhu Abhilekh, Bilaspur, District- Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh --- Respondent(s) with WPS No. 4554 of 2018
Legal Reasoning
this Court in the case of Bihar State Electricity Board and Others v. Dharamdeo Das, 2024 SCC Online SC 1768, wherein it was observed as follows:- “18. It is no longer res integra that a promotion is effective from the date it is granted and not from the date when a vacancy occurs on the subject post or when the post itself is created. No doubt, a right to be considered for promotion has been treated by courts not just as a statutory right but as a fundamental right, at the same time, there is no fundamental right to promotion itself. In this context, we may profitably cite a recent decision in Ajay Kumar Shukla v. Arvind Rai, (2022) 12 SCC 579 where, citing earlier precedents in Director, Lift Irrigation Corporation Ltd. v. Pravat Kiran Mohanty, (1991) 2 SCC 295 and Ajit Singh v. State of Punjab, (1999) 7 scc 209, a three-Judge Bench observed thus: 4 41. This Court, time and again, has laid emphasis on right to be considered for promotion to be a fundamental right, as was held by K. Ramaswamy, J., in Director, Lift Irrigation Corpn. Ltd. v. Pravat Kiran Mohanty in para 4 of the report which is reproduced below: ‘4……. 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.’ 42. A Constitution Bench in Ajit Singh v. State of Punjab, laying emphasis on Article 14 and Article 16(1) of the Constitution of India held that if a person who satisfies the eligibility and the criteria for promotion but still is not considered for promotion, then there will be clear violation of his/her’s fundamental right. Jagannadha Rao, J. speaking for himself and Anand, C.J., Venkataswami, Pattanaik, Kurdukar, JJ., observed the same as follows in paras 22 and 27: ‘Articles 14 and 16(1) : is right to be considered for promotion a fundamental right 22. Article 14 and Article 16(1) are closely connected. They deal with individual rights of the person. Article 14 demands that the ‘State shall not deny to any person equality before the law or the equal protection of the laws’. Article 16(1) issues a positive command that: ‘there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State’. It has been held repeatedly by this Court that clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The said clause particularises the generality 5 in Article 14 and identifies, in a constitutional sense “equality of opportunity” in matters of employment and appointment to any office under the State. The word “employment” being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. 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). * * * 27. In our opinion, the above view expressed in Ashok Kumar Gupta [Ashok Kumar Gupta v. State of U.P., (1997) 5 SCC 201, and followed in Jagdish Lal [Jagdish Lal v. State of Haryana, (1997) 6 SCC 538, and other cases, if it is intended to lay down that the right guaranteed to employees for being “considered” for promotion according to relevant rules of recruitment by promotion (i.e. whether on the basis of seniority or merit) is only a statutory right and not a fundamental right, we cannot accept the proposition. We have already stated earlier that the right to equal opportunity in the matter of promotion in the sense of a right to be “considered” for promotion is indeed a fundamental right guaranteed under Article 16(1) and this has never been doubted in any other case before Ashok Kumar Gupta [Ashok Kumar Gupta v. State of U.P.], right from 1950.’ “20. In State of Bihar v. Akhouri Sachindra Nath, 1991 Supp (1) SCC 334, it was held that retrospective seniority cannot be given to an employee from a date when he was not even borne in the cadre, nor can seniority be given with 6 retrospective effect as that might adversely affect others. The same view was reiterated in Keshav Chandra Joshi v. Union of India, reported 1992 Supp (1) SCC 272, where it was held that when a quota is provided for, then the seniority of the employee would be reckoned from the date when the vacancy arises in the quota and not from any anterior date of promotion or subsequent date of confirmation. The said view was restated in Uttaranchal Forest Rangers’ Assn. (Direct Recruit) v. State of U.P, (2006) 10 SCC 346, in the following words: ‘37. We are also of the view that no retrospective promotion or seniority can be granted from a date when an employee has not even been borne in the cadre so as to adversely affect the direct recruits appointed validly in the meantime, as decided by this Court in Keshav Chandra Joshi v. Union of India held that when promotion is outside the quota, seniority would be reckoned from the date of the vacancy within the quota rendering the previous service fortuitous. The previous promotion would be regular only from the date of the vacancy within the quota and seniority shall be counted from that date and not from the date of his earlier promotion or subsequent confirmation. In order to do justice to the promotes, it would not be proper to do injustice to the direct recruits…… 38. This Court has consistently held that no retrospective promotion can be granted nor can any seniority be given on retrospective basis from a date when an employee has not even been borne in the cadre particularly when this would adversely affect the direct recruits who have been appointed validity in the meantime.” (emphasis supplied)” 6. Further, the departmental enquiry was pending consideration before the disciplinary authority; therefore also the claim of the petitioner was not considered. 7. Taking into consideration the above-stated facts and the law laid down by the Hon’ble Supreme Court, the instant petition fails and is hereby 7 dismissed. 8. In WPS No. 4554 of 2018, the petitioner has challenged the order passed by the disciplinary authority i.e. Collector (Land Records), Bilaspur, whereby the penalty of stoppage of one increment was inflicted vide order dated 09.05.2018. 9. Learned counsel for the petitioner would submit that the documents were not supplied and sufficient opportunity was not afforded by the Enquiry Officer. He would pray to quash the order impugned. 10. On the other hand, learned counsel appearing for the State would submit that the order is appealable; therefore, the petition is not maintainable. 11. Taking into consideration the fact that the order passed by the disciplinary authority dated 09.05.2018 is appealable; therefore, in my opinion, the instant petition is not maintainable and is accordingly dismissed. However, the petitioner would be at liberty to take recourse to law. Sd/- (Rakesh Mohan Pandey) Judge $iddhant
Arguments
Mathura Prasad Kashyap S/o Shri Bedilal, Aged About 63 Years R/o Masturi, Tahsil Masturi, District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh ---Petitioner(s) Versus 1. State Of Chhattisgarh Through Secretary, Revenue And Disaster Management Department, Mantralaya, Mahanadi Bhawan, Naya Raipur, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh 2. State Of Chhattisgarh Through Deputy Secretary, Revenue And Disaster Management Department, Mantralaya, Mahanadi Bhawan, Naya Raipur, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh 3. Collector, Bilaspur, District Bilaspur Chhattisgarh., District : Bilaspur, 2 Chhattisgarh (Cause Title is taken from Case Information System) --- Respondent(s) For Petitioner For State : Mr. Manish Kumar Sahu, Advocate holding the brief of Mr. Awadh Tripathi, Advocate : Ms. Shailja Shukla, Dy. Government Advocate Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 23. 06.2025 1. In WPS No. 3530 of 2018, the petitioner is claiming promotion to the post of Naib Tahsildar after retirement. 2. Learned counsel for the petitioner would submit that the petitioner was appointed to the post of Revenue Inspector vide order dated 06.11.1978 and the gradation list was also prepared. He would further submit that a departmental proceeding was initiated against the petitioner and his services were transferred from Mungeli to Bilaspur and he was placed under suspension. He would also submit that on 08.05.2009, the order of suspension was quashed. He would contend that juniors to the petitioner were promoted to the post of Naib Tahsildar vide order dated 12.01.2018 but the name of the petitioner was not considered on account of the pendency of the departmental enquiry. He would pray that a direction may be issued to the respondent authorities to consider the claim of the petitioner for promotion. 3. On the other hand, learned counsel appearing for the State would oppose. She would submit that the petitioner has filed this petition after retirement. She would further submit that after retirement, the claim of the petitioner for promotion cannot be considered according to the law laid down by the Hon’ble Supreme Court in the matter of Government of West Bengal & Ors. vs. Dr. Amal Satpathi & Ors., 2024 (14) SCALE 294. 3 4. I have heard learned counsel appearing for the parties and perused the documents placed on record. 5. In the matter of Dr. Amal Satpathi (supra), the Hon’ble Supreme Court has categorically held that the claim of the Government Servant with regard to promotion cannot be considered after retirement, in paragraphs 15 & 19, as under:- “15. The primary question that arises for our consideration in the present appeal is whether respondent No.1, who was recommended for the promotion before his retirement but did not receive actual promotion to the higher post due to administrative delays, is entitled to notional financial benefits of the promotional post after his retirement? 19. 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. While the Courts have recognized the right to be considered for promotion as not only a statutory right but also a fundamental right, there is no fundamental right to the promotion itself. In this regard, we may gainfully refer to a recent decision of