Excelsior Correspondent
Srinagar, Oct 12: In a landmark judgment, the State High Court today held that the Government employee cannot claim his promotion as a matter of right but can seek its consideration.
Petitioner is presently Senior Aquaculture Engineer, holding the aforesaid post since 09.06.2005 and is seeking promotion to the post of Chief Aquaculture Engineer.
He was assigned the charge of post in addition to his own duties as Senior Aquaculture Engineer, vide Fisheries Order No.127 of 2013 dated 09.11.2013 issued by the then Director, Fisheries as the said post has not been filled up till date.
Court of Justice Sanjeev Kumar after hearing the parties and in view of Supreme Court rulings on the issue, said, If the contention of the petitioner that the eligibility of the candidate to be promoted to the higher post is to be seen as per the Rules prevalent on the date of occurrence of vacancy is to be accepted, then the petitioner is to be held entitled to be promoted as Chief Aquaculture Engineer w.e.f. 09.06.2005 or at least immediately with effect from the date he completed the period of probation as Senior Aquaculture Engineer.
On the other hand, if the plea of the State that the date of occurrence of vacancy is not relevant for determining the eligibility in terms of the Rules then in vogue but is to be determined in terms of the Rules in force at the time the process for filling up the vacancy is initiated, is accepted then admittedly, the petitioner lacks the basic eligibility to be promoted to the post of Chief Aquaculture Engineer. “This is apparent from a bare perusal of the Rules of 2009. It is in this context, determination of question of law framed above, assumes importance.”
“The position of law is, thus, well settled that no employee has a right of promotion but he has only right to be considered for promotion according to the Rules”, court held adding with “The chances of promotion are not the conditions of service and are therefore, defeasible in accordance with law. This is so held by the Supreme Court”.
Justice Kumar further added, that It is equally well settled that a candidate has a right to be considered for promotion in terms of the Rules in force on the date of consideration and there is no Rule of universal or absolute application that the vacancies are required to be filled up invariably in accordance with the Rules prevalent on the date when the vacancies arise.
However, court said, this Rule is subject to exception, i.e., if there is statutory duty cast upon the State/employer to hold DPC or complete the exercise for promotion within a prescribed period.
Underscoring the judgment of Supreme Court in Deepak Aggarwal’s case, Court said, there is statutory mandate to fill up the vacancies within a prescribed period, it is always left to the wisdom and discretion of the employer to fill up the vacancies as and when it deems fit and proper and the employee, who has a right of consideration for promotion cannot dictate to his employer that available vacancy should be filled up immediately on its occurrence.
The petitioner has also for a direction to the respondents to accord consideration to the claim of the petitioner for his promotion to the post of Chief Aquaculture Engineer in terms of The Jammu & Kashmir Fisheries (Gazetted) Service Recruitment Rules, 1999 (for brevity, the Rules of 1999).
The petitioner has assailed the impugned communications primarily on the ground that respondent-authority in the aforesaid communications has sought deputation of an eligible person from PW(R&B) department to be posted as Chief Aquaculture Engineer on the ground that there was no eligible person available in the department.
Counsel appearing for the respondents submits that the eligibility of an individual for promotion to the higher post is governed by the Recruitment Rules, which were in force on the date the process for filling up the higher post is initiated and has no reference to the date of occurrence of the vacancy.
Court said that an employee has a right to be considered for promotion according to the Rules prevalent on the date the consideration takes place. Chances of promotion are not the condition of service, therefore, defeasible in accordance with law.
Court said, that being the position, unless there is a statutory mandate to fill up the vacancies within the prescribed period, employer/State is well within its right to decide about the time, it would choose to fill up the vacancies. For good reasons it can defer the filling up of the vacancies/vacancy that may have accrued from time to time.
Referring the of Rules of 1999, court said, the respondents were well within their powers to fill up the vacancy by way of deputation from PW(R&B) department, yet from the pleadings, it is apparent that right from the year 2001, till the impugned communications were addressed, no steps were taken to fill up the post by resorting to alternate mode, i.e., by way of deputation.
The petitioner, court said, though, acquired eligibility in the year 2005 itself in terms of the Rules of 1999, was not considered despite the petitioner having made several representations in this regard and the plea of the respondents that the petitioner was substantively promoted as Senior Aquaculture Engineer only in the year 2011 when pursuant to the recommendations of the DPC/PSC, his promotion was confirmed also cannot be accepted for the simple reason that the petitioner, who was holding the post of Senior Aquaculture Engineer since 09.06.2005 in incharge capacity and was ultimately substantively promoted, though, notionally w.e.f. 09. 06.2005.
“Had the respondents adhered to the mandate of The Jammu and Kashmir Civil Services (reference of vacancies and holding of meetings of Departmental Promotion Committees) Rules, 2005, the petitioner being the only eligible candidate available in the feeding cadre would have been promoted to the post of Chief Aquaculture Engineer”, read the judgment.
“Viewed thus, the writ petition is allowed. Accordingly, the communications impugned dated 01.07.2014, 07.07.2014 and 08.07.2014 are hereby quashed. The respondents are directed to consider the claim of the petitioner for his promotion to the post of Chief Aquaculture Engineer in terms of the Rules of 1999, which were holding the field when the post of Chief Aquaculture Engineer became vacant and also on the date when the petitioner acquired eligibility to be promoted to the post”, court concluded.
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