Promotion Takes Effect Only From Actual Promotion Date Or DPC Approval, Not Retrospectively From Date Of Current Duty Charge: Patna HC

Background Facts

The respondent was appointed as an Assistant Engineer in the Civil Construction Wing of All India Radio on 19.12.1990. He was granted financial upgradation to a Grade Pay of ₹6600/- with effect from 18.12.2002. He was assigned the Current Duty Charge of the post of Executive Engineer with effect from 30.11.2010. The letter appointing him to the charge clearly stipulated that it would not entitle him to any monetary benefit or claim to seniority. The respondent's case for regular promotion was considered by a regular Departmental Promotion Committee (DPC) much later.

He was promoted to the post of Executive Engineer vide order dated 25.02.2020. The petitioners attributed the delay in convening the DPC to pending litigation before the Supreme Court, wherein an interim order of status quo was granted on 17.01.2011. It was later modified on 19.08.2015 and the matter was disposed of on 18.01.2017. The respondent sought regularization of his promotion from the date he began holding the charge, but it was denied. Aggrieved, the respondent approached the Central Administrative Tribunal (CAT). The Tribunal allowed his application and directed the petitioners to regularize his promotion to the post of Executive Engineer with effect from 30.11.2010, granting him all consequential benefits.

Aggrieved by the same, the Union of India filed the writ petition before the High Court.

It was submitted by the petitioners, the Union of India, that the respondent was assigned a Current Duty Charge of the Executive Engineer post. Further the appointment letter itself explicitly stated that the arrangement would not confer any monetary benefit or claim to seniority. It was further contended that the promotion of an employee becomes effective only from the date it is formally granted by the competent authority, and not from the date a vacancy arises or an employee begins officiating in a higher post. The reliance was placed on the Office Memorandum dated 10th April 1989, issued by the Ministry of Personnel, Public Grievances & Pensions. The petitioners referred to Paragraphs 6.4.4, 17.10, and 17.11 of the O.M., which mandate that promotions must have only prospective effect. It must be reckoned from the date of the DPC's meeting or the actual promotion, whichever is later.

Furthermore, the petitioners placed reliance on the judgment in the case of Government of West Bengal and Others Vs. Dr. Amal Satpathi and Others wherein it was held that retrospective promotion or seniority cannot be granted from a date when the employee was not regularly promoted. It was also submitted that the delay in conducting the DPC was due to a status quo order passed by the Supreme Court in a separate seniority matter. It prevented the authorities from proceeding with promotions for a significant period.

On the other hand, it was submitted by the respondent that he was eligible for promotion to the post of Executive Engineer. It was contended that the petitioners had denied him a regular promotion for a decade due to the status quo order passed by the Supreme Court. It was the sole reason for not convening the Departmental Promotion Committee (DPC). It was further submitted that after the status quo order dated 17.01.2011, the authorities had conducted a DPC and issued a promotion order promoting certain other officials. It was contended that the Supreme Court had modified the order and permitted the Union of India to make promotions to the post of Executive Engineer, subject to the outcome of the appeal.

The respondent argued that despite Supreme Court's order, the petitioners allowed him to continue in a long-standing Current Duty Charge capacity for an indefinite period of ten years. It was later ratified by a regular promotion in 2020. The respondent relied upon the decision in the case of K. Madhavan and Another Vs. Union of India. It was contended that to prevent a miscarriage of justice, promotion should be deemed to have taken effect retrospectively from the commencement of a current duty charge.

Findings of the Court

It was observed by the Court that the respondent was assigned the charge of Executive Engineer from 30.11.2010, but the letter of appointment for this charge explicitly stated that it would not confer any monetary benefit or claim to seniority.

The reliance was placed on the Office Memorandum dated 10th April 1989, issued by the Ministry of Personnel, Public Grievances & Pensions. It was held that the guidelines given in Paragraphs 6.4.4, 17.10, and 17.11 of the O.M. state that promotions can only have prospective effect. It was observed by the court that the general principle is that an officer's promotion is regular from the date of the DPC's validity or the date of actual promotion, whichever is later.

The case of Government of West Bengal and Others Vs. Dr. Amal Satpathi and Others was relied upon by the court wherein it was held that a promotion becomes effective only from the date it is granted. It does not become effective from the date a vacancy arises or an employee starts working in a temporary capacity.

The case of State of Bihar v. Akhouri Sachindra Nath was relied upon by the court wherein it was held that retrospective seniority cannot be given to an employee from a date when he was not even borne in the cadre, nor can seniority be given with retrospective effect as that might adversely affect others. The same view was reiterated in Keshav Chandra Joshi v. Union of India, wherein it was held that when a quota is provided for, then the seniority of the employee would be reckoned from the date when the vacancy arises in the quota and not from any anterior date of promotion or subsequent date of confirmation.

Consequently, the Tribunal's judgment was set aside by the court. With the aforesaid observations, the writ petition filed by the Union of India was allowed by the court.

Case Name : Union of India & Ors. vs. Vishwa Mohan Kumar

Case No. : Case No.12586 of 2024

Counsel for the Petitioners : K.N. Singh, ASG Mr. Ram Tujabh Singh, CGC Mr. Radhika Raman, Advocate

Counsel for the Respondents : Vishwa Mohan Kumar