Sanjay Kumar Sinha vs The State Of Jharkhand Through The ...
2021 Latest Caselaw 3492 Jhar

                                                      1

              IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                 W.P. (S) No. 198 of 2021


              Sanjay Kumar Sinha                                   ...             Petitioner
                                 VERSUS-
          1. The State of Jharkhand through the Chief Secretary, project Bhawan, Dhurwa,
                Ranchi
          2. The Principal Secretary Personnel Administrative Reforms and Rajyabhasha
                Department, Govt. of Jharkhand, Project Bhawan, Dhurwa, Ranchi
          3. Dy. Secretary, Personnel Administrative Reforms and Rajyabhasha Department,
                Govt. of Jharkhand, Dhurwa, Ranchi
          4. Principal Secretary, Information Technology and E-Governance, Govt. of
                Jharkhand, Project Bhawan, Dhurwa, Ranchi
          5. Secretary, Planning cum-Finance Department, Govt. of Jharkhand, Project
                Building, Dhurwa, Ranchi                                  ...     Respondents
              CORAM: HON'BLE MR. JUSTICE DR S. N. PATHAK
                           (Through : Video Conferencing)
               For the Petitioner            : Mr. Shresth Gautam, Advocate
               For the Respondents           : Mr. Gaurang Jajodiya, AC to SC-I
                                       ------

04/20.09.2021 The petitioner has approached this Court with a prayer for a direction

upon the respondents to consider the case of the petitioner for promotion from the post of Deputy Secretary to the post of Joint Secretary in view of the fact that the petitioner fulfils all the requisite qualifications for promotion, being the senior most person to be considered for promotion, but his case for promotion has not been considered in a most arbitrary and illegal manner.

2. It is specific case of the petitioner as argued by learned counsel for the

petitioner that on account of retirement of seniors, seat was lying vacant, but the case of the petitioner was not considered for promotion though petitioner was eligible in all respect for promotion and during the pendency of the writ petition, the petitioner retired on 31.01.2021 awaiting promotion. He further submits that he has approached this Court prior to his superannuation and as such, a direction be given upon the respondents to consider the case of the petitioner for promotion with all consequential benefits.

3. Mr. Gaurang Jajodiya, learned counsel for the respondents vehemently opposes the contention of the learned counsel for the petitioner and submits that writ petition itself is premature. The case requires no interference as no right of the petitioner has been infringed and hence this writ petition be dismissed in limine.

4. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that no interference is warranted in the instant

writ petition for following facts and reasons:-

a) An employee cannot claim promotion as a matter of right but there is right for consideration of his case for promotion.

b) Nothing has been argued by the learned counsel for the petitioner that any juniors to the petitioner has been considered and granted promotion by the DPC.

c) No DPC was held between the date of retirement of the petitioner and his seniors.

d) The petitioner is claiming promotion after retirement on 31.01.2021, there is no cause of action for filing of the writ petition.

5. The issue is now no more res integra, the Hon'ble Supreme Court in case of High Court of Delhi v. A.K. Mahajan, reported in (2009) 12 SCC 62, at page 71, it has been held that

20. We must observe that the said para 24 of Rangadhamaiah case2 is being interpreted in an erroneous way. Its clear language suggests that where the amendment, having retrospective operation, which has the effect of taking away a benefit already available to the employee, then such a provision is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution of India.

21. Now, we find no discussion in the whole judgment of the High Court as to what was the benefit which was available to the said employee. The High Court has observed that the benefit of consideration, which was available to Writ Petitioner 8 prior to the retrospective amendment of the Rules, was not available to him after the amendment of the Rules. In our opinion, this is an incorrect notion. There can be no benefit of consideration. To be considered is a right of employee but merely being considered, in itself, is not a benefit as it may or may not result in the selection or promotion of an employee and hence it is in the nature of a chance. A mere chance of promotion being affected by amendment is in our opinion inconsequential.

22. This Court has time and again held that since promotion is not a right of the employee, a mere chance of promotion if affected cannot and does not invalidate the action on the part of the employer. That right of consideration may accrue at a particular point of time or subsequently thereto. Merely because at a particular point of time the employee is not considered, does not mean the total denial of the consideration of the employee.

6. Further, the Ho'ble Apex Court in case of Ram Ashish Dixit v. Purvanchal Gramin Bank Ltd., reported in (2013) 6 SCC 309, at page 312 it has been held thus :

10. We have considered the submissions made by the learned counsel. In the facts of this case, it would not be possible to agree with the appellant that the action of the Bank is either arbitrary or without legal sanction. The appellant did not have any right to be promoted automatically on completion of minimum length of

service. He had to be declared suitable for promotion on the criteria applicable.

7. As a cumulative effect of the aforesaid rules, guidelines and judicial pronouncement, writ petition is liable to be dismissed and as such, is hereby dismissed.

(Dr. S.N. Pathak, J.) punit/-