Punjab-Haryana High Court
Virender Kumar vs State Of Haryana And Others on 4 August, 2022
CWP-18650-2021 (O&M) and other connected case 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(105) CWP-18650-2021 (O&M)
Date of Decision : August 04, 2022
Virender Kumar .. Petitioner
Versus
State of Haryana and others .. Respondents
(105-A) CWP-18726-2021 (O&M)
Bal Kishan .. Petitioner
Versus
State of Haryana and others .. Respondents
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present: Mr. Mohd. Arshad, Advocate, for the petitioner
(in both petitions).
Mr. Harish Nain, Assistant Advocate General, Haryana.
HARSIMRAN SINGH SETHI J. (ORAL)
CM-15698-CWP-2021 and CM-15697-CWP-2021
As prayed for, the applications are allowed.
Annexures P-5 and P-6 are taken on record.
CWP-18650-2021 and CWP-18726-2021
In the present writ petitions, the grievance of the petitioners is
1 of 5
CWP-18650-2021 (O&M) and other connected case 2
that they were entitled for promotion with effect from the year 2012 when
the vacancy in the cadre of Principal arose for which, the petitioners claim
eligibility.
Learned counsel for the petitioners argues that the promotion to
the post of Principal are governed by Mewat District School Education
(Group B) Service Rules, 2012 (hereinafter referred as '2012 Rules'),
according to which, a lecturer is eligible for promotion to the post of
Principal. Learned counsel for the petitioners submits that as per the said
Rule, the petitioners were eligible for promotion in the year 2012 but the
respondents did not grant the same to the petitioners and the same was only
granted to the petitioners in the year 2019 and therefore, the petitioners are
entitled for the grant of promotion w.e.f. date the vacancy arose in the cadre
of Principal keeping in view the 2012 Rules.
After notice of motion, the respondents have filed the reply
wherein, they have justified their action in not effecting promotion to the
post of Principal. As per the respondents, after framing of the rules, the
seniority list, the finalization of which is the basic requirement for effecting
promotion, remained in litigation before this Court.
As per the respondents, till the seniority is finalized, no
promotion could have been effected and after the seniority in the cadre of
lecturer became final, the promotions were effected in the year 2019 itself
and therefore, there is no delay in making the promotion.
I have heard learned counsel for the parties and have gone
through the record with their able assistance.
The first question which arise is whether, an employee can
claim promotion w.e.f the date the vacancy arose in the promotion cadre.
2 of 5
CWP-18650-2021 (O&M) and other connected case 3
As per the settled prinicple of law, no employee has a right for
promotion and the only right is for consideration for promotion keeping in
view the eligibility and seniority, which is governed by the relevant rules. In
the present case, the prayer of the petitioners is that they were eligible in the
year 2012 when the vacancy arose and therefore, rather than giving them
promotion from the year 2019, it should be given retrospectively from the
year 2012.
As per the settled principle of law settled by the Hon'ble
Supreme Court of India in Civil Appeal Nos. 517-518 of 2017 titled as
Union of India and antoher versus Manpreet Singh Poonam etc, decided
on 08.03.2022, no employee can claim retrospective promotion from the
date the vacancy arise. The Hon'ble Supreme Court of India has held that
the promotions are to be effected keeping in view the rules governing the
service and the procedure therein has to be followed and the promotion can
only be given effect to after following the procedure laid down in the
relevant rules. The relevant paragraph of the said judgment is as under:-
"18. 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 is also to be borne in mind that
when we deal 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. In the present case, the
authority acting within the rules has rightly granted promotion
3 of 5
CWP-18650-2021 (O&M) and other connected case 4
after clearance of DPC on 17.04.2012 with effect from
01.07.2011, when the actual vacancies arose, which in any case
is a benefit granted to the Respondent in Civil Appeal No.518 of
2017. 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.
19. This Court in the case of Union of India v. KK
Vadhera and Ors., 1989 Supp (2) SCC 625 has clearly laid
down that the promotion to a post should only be granted from
the date of promotion and not from the date on which vacancy
has arisen, and has observed that:
"5....We do not know of any law or any rule under which a
promotion is to be effective from the date of creation of the
promotional post After a post falls vacant for any reason
whatsoever, a promotion to that post should be from the date
the promotion is granted and not from the date on which such
post falls vacant. In the same way when additional posts are
created, promotions to those posts can be granted only after the
Assessment Board has met and made its recommendations for
promotions being granted. If on the contrary, promotions are
directed to become effective from the date of the creation of
additional posts, then it would have the effect of giving
promotions even before the Assessment Board has met and
assessed the suitability of the candidates for promotion. In the
circumstances, it is difficult to sustain the judgment of the
Tribunal."
Keeping in view the above, the petitioners do not have a right
for seeking retrospective promotion from the date when the vacancy arose
and therefore, the said claim is rejected.
Even otherwise, in the present case, the respondents have
projected a valid reason for not effecting the promotions despite
4 of 5
CWP-18650-2021 (O&M) and other connected case 5
availaibility of the vacancies in the promoted cadre. The promotions are to
be made on the basis of seniority of a candidate. In the present case, the
seniority list was under litigation and the said seniority list attained finality
in the year 2019. That being so, it cannot be said that the promotions which
were effected in the year 2019, were bad in law or were delayed in any
manner.
Keeping in view the above, the prayer of the petitioners as
raised in the present writ petitions cannot be accepted and the writ petitions
are accordingly dismissed.
A photocopy of this order be placed on the file of other
connected case.
August 04, 2022 (HARSIMRAN SINGH SETHI)
harsha JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
5 of 5
