Bilaspur, Chhattisgarh v. 1. State Of Chhattisgarh Through The Secretary School Education Department, Mahanadi Bhawan, New Raipur
Case Details
1 2025:CGHC:36756 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 4241 of 2021 G.S. Netam S/o Shri Ganesh Ram Netam Aged About 60 Years R/o Near Rk Tailor Devrikhurd Bilaspur, District- Bilaspur, Chhattisgarh, District : Bilaspur, Chhattisgarh ... Petitioner(s) versus 1. State Of Chhattisgarh Through The Secretary School Education Department, Mahanadi Bhawan, New Raipur, Chhattisgarh, District : Raipur, Chhattisgarh 2. Chhattisgarh Board Of Secondary Education, Through The Secretary, Vivekanandnangar, Janta Colony, District-Raipur, Chhattisgarh, District : Raipur, Chhattisgarh 3. Narayan Majumdar, R/o Mig-C 54, Rishabh Nagar, Amilidih, P.S.-Rajendra Nagar, Raipur, District-Raipur, Chhattisgarh, District : Raipur, Chhattisgarh (Cause Title is taken from Case Information System) ... Respondent(s) For Petitioner For State For Respondent No. 2
Legal Reasoning
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 “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 5 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 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 6 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, neither promotion from a retrospective date nor notional benefits can be extended; therefore, the instant petition is hereby dismissed. No cost(s). - Sd/- (Rakesh Mohan Pandey) Judge $iddhant
Arguments
: Mr. Dinesh Kumar Bole, Advocate holding the brief of Mr. Shailendra Shukla, Advocate : Mr. Sanjeev Kumar Agrawal, Panel Lawyer : Mr. R.S. Patel, Advocate 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 The Hon’ble Court may kindly be pleased to call for the entire record pertaining to the case of the petitioner. 10.2 To consider the name of the Petitioner for the post of Assistant Secretary by relaxing the educational qualification as earlier relaxed from the date when juniors were promoted. 2 10.3 The Promotion of the Respondent No. 3 may be set aside. 10.4 That Hon’ble Court may kindly be pleased to set aside the order passed by respondent board promoting the resopndent Narayan Majumdar (Annexure- P/9).” 2. Learned counsel for the petitioner would submit that initially, the petitioner was appointed to the post of Lower Division Clerk, and he got promoted to the post of Section Officer vide order dated 23.10.2006. He would further submit that the Departmental Promotion Committee (DPC) was convened on 16.05.2013, and juniors to the petitioner were promoted to the post of Assistant Secretary on 30.05.2013, and the name of the petitioner was not considered. He would also submit that, again, a DPC was convened on 14.01.2021, but the name of the petitioner was again not considered on the ground that the petitioner did not have the requisite qualification. He would contend that the State of Chhattisgarh has provided relaxation to those persons who were appointed in the service during the enforcement of the recruitment rules of 1999 vide order dated 15.03.2013 and 16.01.2019. He would further contend that the petitioner had retired from service. He would pray to allow the instant petition. 3. On the other hand, learned counsels appearing for respondents would oppose. They would submit that on 16.05.2013, DPC was convened, but the name of the petitioner was not considered as the Departmental Enquiry was pending against him. They would further submit that according to the Chhattisgarh Board of Secondary Education Recruitment and Promotion Rules, 2010, the minimum qualification for promotion to the post of Assistant Secretary is a Graduation, but the petitioner did not have the requisite qualification. They would further contend that vide order dated 15.03.2013, the State Government provided relaxation only for a specific period, and that was not extended further and vide order dated 16.01.2019, 3 one B.D. Sahare was granted an ad-hoc promotion. They would contend that the petitioner had retired from his 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 is claiming promotion from 30.05.2013, when juniors to the petitioner got promoted to the post of Assistant Secretary. The name of the petitioner was not considered as a Departmental Enquiry was pending against him, and he did not have the requisite qualification. 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 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 4 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 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’.