M V Shyama Kumari D/o Shri M v. Prakash Rao Aged About 61 Years R/o Hemunager, Bandhwapara, Bilaspur, Tahsil, Civil And Revenue
Case Details
1 2025:CGHC:36757 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 3791 of 2021 M V Shyama Kumari D/o Shri M. V. Prakash Rao Aged About 61 Years R/o Hemunager, Bandhwapara, Bilaspur, Tahsil, Civil And Revenue District Bilaspur, Chhattisgarh. ... Petitioner(s) versus 1. State Of Chhattisgarh Through The Secretary, Department Of Health And Family Welfare, Secretariat, Mahanadi Bhawan, New Raipur, Police Station And Post Rakhi, District Raipur, Chhattisgarh. 2. Director Directorate Of Health Services, Chhattisgarh, District Raipur, Chhattisgarh. 3. Chief Medical And Health Officer District Janjgir Champa, Chhattisgarh. 4. District Maleria Officer District Janjgir - Champa, Chhattisgarh. (Cause Title is taken from Case Information System) ... Respondent(s) For Petitioner For State : Mr. Anshuman Shrivastava, Advocate : Mr. Sanjeev Kumar Agrawal, Panel Lawyer
Legal Reasoning
“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 6 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 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 7 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)” 7. Taking into consideration the above-stated facts and the law laid down by the Hon’ble Supreme Court, as the petitioner has already retired from services, no retrospective promotion as well as other benefits can be extended. Accordingly, the instant petition fails and is hereby dismissed. No cost(s). $iddhant Sd/- (Rakesh Mohan Pandey) Judge
Arguments
Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 29. 07.2025 1. By way of this petition, the petitioner has sought the following relief(s):- “10.1 That, this Hon'ble Court may kindly be pleased to issue any appropriate Writ(s)/Order(s)/direction(s) directing the respondents to grant regularization, promotion and all other consequential benefits such as time-bound pay scale etc before the retirement of the petitioner; 10.2 That, this Hon'ble Court may kindly be pleased to issue any appropriate Writ(s)/Order(s)/direction(s) directing the respondents to treat the case of petitioner 2 at par with other Superior Field Worker (S.F.W) working in the department and grant similar benefits. 10.3 That, this Hon'ble Court may kindly be pleased to issue any appropriate Writ(s)/Order(s)/direction(s) to quash decision dated 04.03.2021 and 29.10.2015 Annexure P-1 and Annexure P-2; 10.4 That, any other relief which this Hon’ble Court deems fit and proper in favor of the petitioner may kindly be passed.” 2. Learned counsel for the petitioner would submit that initially, the petitioner was appointed to the post of Superior Field Worker vide order dated 09.07.1984 in the Office of District Malaria Officer, NMEP Unit, Janjgir. She was declared permanent as per work-charged and contingency paid rules after completion of three years and 5 years, respectively. He would further submit that juniors to the petitioner, namely, Smt. Poornima Sahu, Rakesh Ghatate, etc., were promoted to the post of Insect Collector vide order dated 06.10.2008, but the name of the petitioner was not considered. He would also submit that WPS No. 2223 of 2015 was filed, whereby the petitioner was granted liberty to make a representation. It is argued that the representation made by the petitioner was rejected vide order dated 29.10.2015, and the said order was challenged by filing WPS No. 5482 of 2020, whereby the respondents were directed to take a decision in light of the rules and regulations in respect of the contingency paid employees with respect to regularisation and other benefits. Mr. Shrivastava would further argue that the representation made by the petitioner was rejected vide order dated 04.03.2021(Annexure P/1) on the ground that the petitioner was not entitled to promotion to the post of Multipurpose Health Worker, whereas the petitioner was claiming promotion to the post of Insect Collector. He would contend that the cadre of Superior Field Workers and the cadre of Multipurpose Workers are 3 entirely different. He would pray to set aside the order dated 04.03.2021(Annexure P/1). 3. On the other hand, learned counsel appearing for the State would oppose. He would submit that respondent No. 3 has considered the case of the petitioner in light of the circular of the State Government dated 20.10.1989 and 06.07.2013 and rejected the claim of the petitioner for promotion. He would further submit that the services of the petitioner were regularised in the work charged and contingency paid establishment, and he was given first Kramonnati on 01.04.2007, and in light of the above benefits extended to the petitioner, the order Annexure P/1 has been passed. He would also submit that the petitioner got superannuated from her services, and after retirement, the claim of the petitioner for promotion cannot be considered as per 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. 4. I have heard learned counsel for the parties and perused the documents placed on the record. 5. The petitioner has claimed promotion at par with Smt. Poornima Sahu and Rakesh Ghatate, who were promoted way back on 06.10.2008 to the post of Insect Collector. The petitioner has not pleaded the rules governing services to establish that the petitioner was eligible for promotion to the next higher post as per the contingency paid employees' rules. 6. 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 4 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 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: 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 5 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’. 8. 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 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