Mere existence of vacancy not enough for employee's retrospective promotion: Supreme Court

Supreme Court of India | Photo: PTI

New Delhi: The Supreme Court on Tuesday said a mere existence of vacancy, per se, will not allow an employee to be considered for retrospective promotion.

A bench of Justices Sanjay Kishan Kaul and M M Sundresh said: "A mere existence of vacancy, per se, will not create a right in favour of an employee for retrospective promotion when the vacancies in the promotional post is specifically prescribed under the rules, which also mandate the clearance through a selection process."

It added that it is also to be borne in mind that when dealing with a case of promotion, there can never be a parity between two separate sets of rules.

"In other words, a right to promotion and subsequent benefits and seniority would arise only with respect to the rules governing the said promotion, and not a different set of rules which might apply to a promoted post facilitating further promotion which is governed by a different set of rules," the bench noted.

The bench said in the present case, the authority acting within the rules has rightly granted promotion after clearance of Departmental Promotion Committee (DPC) on April 17, 2012 with effect from July 1, 2011, when the actual vacancies arose.

"In our view, this exercise of power by the authority of granting retrospective promotion with effect from the date on which actual vacancies arose is based on objective considerations and a valid classification.

"It is trite law that once an officer retires voluntarily, there is cessation of jural relationship resorting to a 'golden handshake' between the employer and employee. Such a former employee cannot seek to agitate his past, as well as future rights, if any, sans the prescription of rules. This would include the enhanced pay scale."

The top court set aside the high court judgment, which said that after keeping the officer without consideration for promotion for a long time, with the decision to grant promotion with effect from July 1, 2011 there is no justification for denying it from October 1, 2009. The top court allowed the Centre's appeal against this judgment.

"As there is no vested or accrued right over a promotional post, in the absence of any vacancies actually in existence for the year 2009, the migration of the other officers of the Indian Administrative Service (IAS) cadre took place only in the year 2011," noted the bench.

The Centre had argued that the high court was not correct to grant relief to an officer, who admittedly voluntarily retired in 2010. It said the promotion was granted after the completion of the selection process in 2012, which was against the vacancies which arose in 2011, in the light of promotion of Junior Administrative Grade I (JAG-I) officers to IAS. IANS

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