In The Union of India through the Secretary, Ministry of Information and Broadcasting & Ors. vs. Vishwa Mohan Kumar (2025), Patna High Court's Division Bench of Justices Sudhir Singh and Rajesh Kumar Verma delivered a 14-page long judgement, wherein, it allowed the writ petition. It concluded:''9. We have heard both the parties at length and this Court has come to the conclusion that due to statue quo granted by the Hon’ble Apect Court in SLP No. 35912-35913 of 2010 the petitioners had not held the DPC for the promotion of the respondents in question and apart from the aforesaid in the recent judgment as mentioned aforesaid by the petitioners in the case of Government of West Bengal and Others (supra) which suggests that the promotion only becomes effective upon the assumption of duties on the promotional post and not on the date of occurrence of the vacancy or the date of recommendation. 10. As a result of the above discussion, the judgment/order dated 04.01.2024 passed in O.A. No. 050/00505/2019 is hereby set aside." DPC refers to Departmental Proceeding Committee. Justice Verma authored the judgement.
The other four respondents were:Director General, All India Radio, New Delhi, CEO, Prasar Bharti, New Delhi, Chief Engineer, Civil Construction Wing, All India Radio, New Delhi and UPSC, through Secretary, Union Public Service Commission, New Delhi.
The petitioner had filed the writ petition for challenging the order dated January 4, 2024 by which the Central Administrative Tribunal had directed Respondent’s promotion to the post of Executive Engineer should be regularized w.e.f. November 30, 2010 the date on which he was given the current duty charge of that post as he held that post continuously till regular promotion. The Central Administrative Tribunal also directed the petitioners to issue order of promotion to the post of Executive Engineer w.e.f. November 30, 2010 with all consequential benefits within three months from the date of this order.
The counsel for the petitioners submitted that Vishwa Mohan Kumar, the respondent herein was appointed as Assistant Engineer in the Civil Construction Wing of All India Radio on December 19, 1990 and was granted financial up-gradation to Grade Pay of Rs. 6600/- w.e.f. December 18, 2002 vide order dated April 27, 2005. Vishwa Mohan Kumar, the Respondent was given current duty charge of the post of Executive Engineer w.e.f. November 30, 2010. The grade pay for the post of Executive Engineer was Rs. 6600/-, so there was no financial enhancement in the pay scale for the current duty charge. The respondent was conferred second MACP with Grade Pay of Rs. 7600/- vide order dated December 18, 2020. The respondent was promoted after regular Departmental Proceeding Committee (DPC) to the post of Executive Engineer vide order dated February 25, 2020.
The counsel for the petitioners submitted that the respondent’s case was before Central Administrative Tribunal (CAT) that respondent was eligible for promotion to the post of Executive Engineer after completing eight years regular service on the post of Assistant Engineer. For the promotion to the post of Superintending Engineer, the eligibility of five (05) years on the post of Executive Engineer. The respondent pleaded before the learned CAT that he was granted only one substantive promotion in the last 30 years of his service. The counsel for the petitioners submitted that from perusal of letter dated November 30, 2010 by which the respondent was officiating to the post of Executive Engineer (Current Duty Charge). The said appointment letter clearly indicates that such appointment will not entitle for any monetary benefit or claim to seniority. The private respondent was ultimately promoted to the post of Executive Engineer by order dated February 25, 2020 after the recommendation of DPC. The delay in process by the DPC for the appointment of Executive Engineer was due to a SLP No. 35912-35913 of 2010 was pending before the Supreme Court with respect to seniority matter and the Court had granted an interim order of status quo by order dated January 17, 2011. The said status quo was vacated by the Court by order dated August 19, 2015. Thereafter, the matter was kept pending in the Court and ultimately the same was disposed of by order dated January 18, 2017. After disposal of the aforesaid SLP, the seniority list was prepared by the authority concerned. Ultimately, the said seniority list was also subject to challenge before the Supreme Court in M.A. No. 2220-2221 of 2018 and the same was finally disposed of vide order dated February 17, 2020 thereafter the respondent has been given to the promotion vide order dated February 25, 2020.
The counsel for the petitioners submitted that it transpired that due to multiple litigation, the DPC could not take place for the period of last 10 years. Additional Solicitor General of India brought to High Court's notice Office Memorandum dated 10th April, 1989 where the Ministry of Personnel, Public Grievances & Pensions Department of Personnel and Training had formulated a guidelines which would govern the promotion/appointment of such persons to the post in question. ''Appointment to posts falling within the purview of ACC can, however, be treated as regular only from the date of approval of ACC or actual promotion whichever later except in particular cases where the ACC approves appointments from some other date”.
The counsel for the petitioners submitted that from perusal of these guidelines, it was made clear that no such appointment/promotion could have been made effect with a retrospective date, only a prospective promotion/appointment would have been made.
The counsel for the petitioners also relied upon paragraph Nos. 19 and 20 of the judgment of Supreme Court in Government of West Bengal and Others vs. Dr. Amal Satpathi and Others, reported in (2024) SCC OnLine SC 3512. It reads: “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.''
Justice Verma who authored the judgement referred to a recent decision of the High Court in Bihar State Electricity Board vs. Dharamdeo Das, wherein it observed: “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 Ajay Kumar Shukla vs. Arvind Rai where, citing earlier precedents in Director, Lift Irrigation Corporation Ltd. vs. Pravat Kiran Mohanty and Ajit Singh vs. State of Punjab, a three-Judge Bench observed:'' 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 Justice K. Ramaswamy, in Director, Lift Irrigation Corpn. Ltd. vs. 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.’
A Constitution Bench in Ajit Singh vs. State of Punjab, laid emphasis on Article 14 and Article 16(1) of the Constitution of India, wherein, it 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.
The counsel for the petitioners submitted that it was not in dispute that the respondent was given the officiating charge (Current Duty Charge) of Executive Engineer, the said appointment letter itself indicated that the respondent could not have made claim for any monetary benefit or seniority on the basis of the said appointment. The said appointment letter was issued in the year 2010 in favour of respondent and the respondent never challenged the letter and now he had not claimed the promotion on retrospective effect.
Vishwa Mohan Kumar, who appeared in person submitted that it was not in dispute that the respondent was not eligible for the promotion to the post in question. The petitioners denied the promotion to the respondent solely on the ground that the status quo was maintained by the Supreme Court on the sole ground that the petitioners could not hold DPC. He also submits that after the status quo order dated January 17, 2011 the petitioners conducted DPC and issued Promotion Order No. 7/2011-BA (E) dated October 24, 2011 and issued posting order to certain officials. He further submitted that the status quo was modified by the Supreme Court vide order dated August 19, 2015 wherein the Court held that “We modify
the interim order and permit the Union of India to make the promotions to the post of Executive Engineer. However, we make it clear that the promotions will be subject to the outcome of this appeal”.
Apart from this, the petitioners could have conducted the DPC immediately after the modification of status quo order by the Court on August 19, 2015. The indefinite 10 years long period of Current Duty Charge ratified in the regular promotion on February 25, 2020. He also submitted that respondent was neither a party in the said SLP nor his eligibility or his position in Direct Recruit slot was to get affected. The appointment was made on Current Duty Charge according to Rule of FR 49, Current Duty Charge is a stop gap arrangement for a very short duration only.
Vishwa Mohan Mumar had also relied upon a decision in the case of K Madhavan and Anr. vs. Union of India, reported in (1987) 4 SCC 566 held that with a view to ensure that miscarriage of justice does not occur, promotion should be deemed to have taken effect retrospectively from the commencement of the so called ad hoc stop gap and current duty charge, provided the incumbent concerned fulfilled the essential criteria for consideration for promotion on the initial date.
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