Failure to consider employee for promotion a violation of fundamental right: SC

New Delhi: The Supreme Court has said that employees are entitled for being considered for promotion subject to them satisfying the eligibility criteria, and failure to consider an employee for upgradation to a higher post would violate their fundamental right.

A bench of Justices Hima Kohli and Ahsanuddin Amanullah said a right to be considered for promotion has been treated by courts not just as a statutory right but as a fundamental right. However, there is no fundamental right to promotion itself, the court said.

The court set aside the Patna High Court's order which directed the Bihar Electricity Board to consider the case of promotion of Dharamdeo Das, an under secretary to the post of joint secretary from July 29, 1997, instead of March 5, 2003, since he has completed a certain time period as per the resolution.

The bench emphasised even if there was a vacancy to the subject posts, it would not have automatically created a valuable right in favour of the respondent for claiming retrospective promotion to the next higher post.

"It is only when an actual vacancy arose that the respondent was granted the benefit of accelerated promotion and that too on going through the prescribed process", the court said.

In its appeal, the board questioned the validity of the HC's order contending that after the bifurcation of erstwhile Bihar, the post of joint secretary was reduced from six to three. The time period criterion was only a directory in nature and cannot be treated as statutory for the respondent to have claimed an entitlement to promotion, it said.

The court, while agreeing to the contention, said, by no stretch of imagination can a right for being appointed to a higher post be treated as a vested right.

"No employee can lay a claim for being promoted to the next higher post merely on completing the minimum qualifying service. Such an interpretation of the resolution would be fallacious and virtually result in nullifying the settled law of a right inhering in an employee for being considered for promotion being a fundamental right," the bench said.

The court emphasised the spirit behind elevating the right for being considered for promotion to a fundamental right is enshrined in the principle of “equality of opportunity” in relation to matters of employment and appointment to a position under the State.

"A right to be considered for promotion being a facet of the right to equal opportunity in employment and appointment, would have to be treated as a fundamental right guaranteed under Articles 14 and 16(1) of the Constitution but such a right cannot translate into a vested right of the employee for being necessarily promoted to the promotional post, unless the rules expressly provide for such a situation," the bench said.