G.P. Pawar S/o Late Shri R. L. Pawar Aged About 64 Years R/o v. 1. State Of Chhattisgarh Through The Secretary, Public Works Department, Mahanadi Bhawan Naya Raipur
Case Details
1 2025:CGHC:36708 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 4833 of 2021 G.P. Pawar S/o Late Shri R. L. Pawar Aged About 64 Years R/o B 29 Shabari Kanaya Ashram, Kanchan Ganga Colony Phase-2, Raipur Chhattisgarh ... Petitioner(s) versus 1. State Of Chhattisgarh Through The Secretary, Public Works Department, Mahanadi Bhawan Naya Raipur Chhattisgarh 2. Chhattisgarh Public Service Commission Shankar Nagar Road, Bhagat Singh Square, Raipur District Raipur Chhattisgarh (Cause Title is taken from Case Information System) ... Respondent(s) For Petitioner For State/Respondent No. 1 For Respondent No. 2
Legal Reasoning
of an order passed by this Court in WPS No. 5258 of 2018 (Annexure P/1) whereby the respondent authorities were directed to consider the claim of the petitioner for promotion within a period of 60 days. He would also contend that the petitioner got superannuated in the year 2019. He would pray to allow the instant petition. 3. On the other hand, learned counsels appearing for the respondents would oppose. They would submit that the petitioner has filed this petition after retirement. They would further submit that after retirement, the claim of the petitioner for promotion and notional benefits 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 appearing for the parties and perused the documents placed on the record. 3 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 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 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 4 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 “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 5 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 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. Admittedly, the petitioner has filed this petition claiming promotion after retirement. The delay part has not been explained properly. The Hon’ble Supreme Court in the matter of Dr. Amal Sathpathi (supra) has held that retrospective promotion cannot be granted to a government servant after retirement. Further, the notional benefits cannot be extended after superannuation. The petitioner got retired from service in the year 2019 and thereafter filed this petition. 6 7. Taking into consideration the above-stated facts and the law laid down by the Hon’ble Supreme Court, no promotion, including notional benefits, can be extended after retirement; therefore, the instant petition is hereby dismissed. No cost(s). Sd/- (Rakesh Mohan Pandey) Judge $iddhant
Arguments
: Mr. Jitendra Pali, Advocate : Mr. Sanjeev Kumar Agrawal, Panel Lawyer : Dr. Sudeep Agrawal, Advocate Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 28. 07.2025 1. By way of this petition, the petitioner has sought the following relief(s):- “10.1 To kindly direct the respondents to consider the case of the petitioner for promotion to the post of Executive Engineer w.e.f. 2005 as the vacancies arose due to shifting of several persons in the year 2003 and grant all consequential benefits to the petitioner. 10.2 To kindly direct the respondents to consider the case of the petitioner for promotion the post of Superintending Engineer from the date of eligibility in the light of the order passed by this Hon'ble Court in WPS No. 5258/2018 by granting him notional benefits. 10.3 To kindly direct the respondents to consider the 2 representation of the petitioner in an objective manner and grant him all consequential benefits as provided to similarly situated persons. 10.4 To kindly issue any such Writ/ order that may be deemed fit in the interest of justice.” 2. Learned counsel for the petitioner would submit that the petitioner was appointed to the post of Assistant Engineer in the year 1985. He would further submit that he was promoted to the post of Executive Engineer in the year 2007. He would also contend that the petitioner became eligible for promotion to the post of Superintendent Engineer in the year 2012, but the same was not considered. He would further submit that the petitioner made various representations to the respondent authorities for promotion to the next higher post, but his name was not considered for the said post. He would contend that the right accrued in favor of the petitioner by virtue