Jharkhand High Court
Vijay Kumar vs The State Of Jharkhand Through The Chief ... on 25 March, 2025
Author: Ananda Sen
Bench: Ananda Sen
2025:JHHC:10078
IN THE HIGH COURT OF JHARKHAND AT RANCHI
WP(S) No.1439 of 2025
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Vijay Kumar, son of Ramesh Prasad Mahto, resident of D-17, Officers'
Flat, Deen Dayal Nagar, PO and PS Kotwali, District Ranchi
... Petitioner(s).
Versus
1.The State of Jharkhand through the Chief Secretary, Government of
Jharkhand, Project Bhawan, PO and PS Dhurwa, District Ranchi
2.The Principal Secretary, Information and Public Relation
Department, Government of Jharkhand, Suchna Bhawan, Audrey
House, Mayer's Road, PO Ranchi University, PS Gonda, District
Ranchi
3.The Director, Public Relation Directorate, Govt. of Jharkhand,
Suchna Bhawan, Audrey House, Mayer's Road, PO Ranchi
University, PS Gonda, District Ranchi
4.The Deputy Director, Public Relation Directorate, Govt. of
Jharkhand, Suchna Bhawan, Audrey House, Mayer's Road, PO
Ranchi University, PS Gonda, District Ranchi
... Respondents.
CORAM : SRI ANANDA SEN, J.
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For the Petitioner(s) : Mr. Rahul Kumar, Advocate
For the Respondent(s) : Mr. Ankit Kumar, AC to GP-VI
.........
04 /25.03.2025: In this writ petition, the petitioner is praying to consider his case
of promotion from the post of Deputy Director to the post of Joint
Director.
2. Learned counsel for the petitioner submits that three posts of
Joint Director are still vacant and the same has not been filled up. The
petitioner be promoted to the post of Joint Director in terms of the
rules as the petitioner is working as Deputy Director and he is eligible
to be considered for promotion. The petitioner has also submitted
representation but is still pending.
3. To be promoted is not a fundamental right but to be considered
for promotion is definitely a right. Persons needs to be considered if
he is in service.
4. Admittedly in this case the petitioner is not in service. As the
petitioner is not in service, he cannot assume charge of higher post. In
view of Rule 58 of the Jharkhand Service Code, a person cannot get
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any benefit of the promotion unless he assumes the post. In this case
admittedly the petitioner cannot assume the said post.
5. The Hon'ble Supreme Court in the case of "State of Bihar &
Ors. Vs. Akhouri Sachindra Nath & Ors." reported in (1991) Suppl.
(1) SCC 334, has 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.
6. The Hon'ble Supreme Court in its very recent judgment in the
case of "Government of West Bengal & Ors. Vs. Dr. Amal Satpathi
& Ors." reported in (2024) SCC OnLine SC 3512, has held that 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.
It has further been held at para-21 that 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.
7. In the aforesaid judgment, the relevant provisions of Rule
54(1)(a) of the West Bengal Service Rules were considered, as per
which, a person shall not draw any higher pay than his substantive
pay in respect of the permanent post other than the regular post
unless the officiating appointment involves assumption of duties.
Similar is the condition laid down under Rule 58(a) of The
Jharkhand Service Code, 2001, which reads as follows:-
"58. (a) Subject to any exceptions specifically made in these
rules and to the provisions of clause (b) of this rule, a Government
servant shall begin to draw the pay and allowances attached to his
tenure of a post with effect from the date on which he assumes the
duties of that post, and shall cease to draw them as soon as he
ceases to discharge those duties."
8. Thus, the provision of law provided in the Jharkhand Service
Code in Rule 58(a) is similar to that of the Rules of West Bengal which
has been considered by the Hon'ble Supreme Court. Thus, in my
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view, the judgment of the Hon'ble Supreme Court is applicable in this
case also.
9. Since the petitioner has already superannuated, he is not
entitled for any relief. Thus, I find no merit in this writ petition and the
same is dismissed.
(ANANDA SEN, J.)
Tanuj/
