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• The Bihar State Electricity Board filed an appeal against an employee who sought a  retroactive promotion, and the Supreme Court recently reaffirmed that a promotion takes  effect from the date it is granted, not from the creation of the post or the date there is a  vacancy on it. 

• While it is true that courts have viewed the right to be considered for promotion as both a  statutory and fundamental right, there is no fundamental right to promotion per se. Even in  the event that the subject posts were vacant, this would not have given the respondent the  right to retroactively claim promotion to a higher position. The respondent was only given  the advantage of an accelerated promotion when a genuine vacancy occurred, and even  then, only after following the required procedure, the bench of Justices Hima Kohli and  Ahsanuddin Amanullah noted. 

• The respondent-employee was not denied a promotion to a higher position in this case,  according to the Court, nor could it be claimed that the appellant-employer’s actions were  motivated by any wrongdoing or improper use of authority. Instead, the employer-Board’s  actions were solely motivated by administrative needs. As a result, the High Court’s  decision against the Board was overturned by the Court, who also granted the appeal. 

• The appellant-Board hired the physically challenged respondent, a member of the  Scheduled Caste, for the position of Lower Division Assistant in 1976. He received several  promotions during the years. A resolution establishing the Kal Awadhi for applicants from  Scheduled Caste/Scheduled Tribe and General Category to be promoted from one grade to  another for different employee categories was passed by the Board on December 26, 1991. 

Facts  

• The responder received an expedited promotion to the position of Under Secretary in 1995.  He received an expedited promotion to the position of Joint Secretary eight years later via  Notice dated March 5, 2003. Nonetheless, the Board resolved in December 2003 to cut the  number of Joint Secretary positions authorized at its Patna headquarters from six to three.  This was allegedly due to the split of the former State of Bihar into the current State of  Bihar and as well as Jharkhand 

• The respondent filed a writ petition before the Patna High Court on March 5, 2003,  expressing their dissatisfaction with the notification. Even though he was elevated to the  position of Joint Secretary on March 5, 2003, he claimed that the promotion should have  been taken into account in July 1997, when the position had truly become vacant. The  learned Single Judge rejected this plea. 

• The respondent then filed an intra-court appeal, which was granted. With effect from July  29, 1997, the appellant was ordered by the High Court to promote the respondent to the  position of Joint Secretary. The appellant-Board was instructed to give the respondent any 

benefits that would have accrued to him on such a post with retroactive effect because he  had already retired by the time the verdict was issued. The appellant-Board petitioned the  Supreme Court in opposition to the ruling of the High Court. 

• The appellant-Board contended that, as of July 29, 1997, the day the respondent finished  his Kal Awadhi for promotion from Under Secretary to Joint Secretary, there had been no  opening for the Joint Secretary position until March 5, 2003, the actual date of his  promotion. Additionally, it was maintained that the Kal Awadhi requirements were merely  an eligibility requirement that, if fulfilled, made the incumbent employee eligible to be  considered for a promotion; an early promotion was not required. 

• Conversely, the respondent asserted that, as of July 29, 1997, he had finished the Kal  Awadhi in accordance with the Board’s resolution from December 26, 1991. He also  emphasized that, on the pertinent date, July 29, 1997, he was the most senior member of  the Under Secretary cadre, that he was physically handicapped, and that he belonged to the  reserved group. 

Judgement 

• The Court concluded that, subject to meeting eligibility requirements and relevant  regulations, the right to be given consideration for promotion is a component of “equality  of opportunity” after reviewing prior legal decisions on the matter. 

• “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 of India, 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 statement stated, drawing a  distinction between the stages of considering an employee for promotion and that of  recognizing the said right as a vested right for promotion. 

• The respondent claimed that upon completing the Kal Awadhi, he would be eligible for  promotion immediately. However, the court rejected this argument. 

• Regarding the circumstances, the court observed that the respondent received five  promotions from the appellant-Board in a period of ten years and five months. 

Bihar State Electricity Board and Others v. Dharamdeo Das, CIVIL APPEAL NO. 6977 OF  2015 2024 LiveLaw (SC) 506 

Aishwarya, B. A. L. Lb. (Hons), Mody University Of Science And Technology, Laxmangarh,  intern at legal vidhiya 

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