Supreme Court: In a civil appeal against the Calcutta High Court’s decision upholding the order of the West Bengal Administrative Tribunal, which directed that the respondent, though not entitled to retrospective promotion after his superannuation, should be awarded notional financial benefits for the promotional post of Chief Scientific Officer as of his retirement date, the Division Bench of PS Narasimha and Sandeep Mehta*, JJ. held that since respondent 1 superannuated before his promotion was effectuated, he was not entitled to retrospective financial benefits associated with the promotional post of Chief Scientific Officer, as he did not serve in that capacity. Hence, allowing the appeal the Court set aside the impugned decisions.
Background
Respondent 1 was promoted to the post of Principal Scientific Officer on an officiating basis on 24-03-2008. Following an amendment to the relevant Recruitment Rules, respondent 1 became eligible for promotion to the post of Chief Scientific Officer. The Department initiated the promotional process by approaching the Public Service Commission. The PSC, recommended the name of respondent 1 for the promotion to the said post. However, the Department received the final approval for his promotion on 4-01-2017, but by that time, respondent 1 had already superannuated on 31-12-2016. A representation was made to the Department to give effect to his promotion. The matter was then referred to the Finance Department, Government of West Bengal, which denied the promotion stating that the respondent could not join to the promotional post within his service tenure. He retired on superannuation on 31-12-2016, as a result officiation to a higher post with greater responsibilities and importance does not arise.
The Tribunal vide order dated 26-06-2019 noted that as per Rule 54(1)(a) of the West Bengal Service Rules, 1971, promotion cannot be granted retrospectively after the retirement of a Government employee, however, upon acknowledging that respondent 1 was duly recommended for promotion before his superannuation, which was only delayed due to procedural obstructions beyond his control, ruled that he should be granted notional financial benefits of the promotional post with effect from 31-12-2016, to ensure pensionary benefits commensurate with the promotional post. The High Court, in appeal by the State, upheld the Tribunal’s decision that retrospective promotion was impermissible but ruled that notional financial benefits were justified given that no fault can be attributed to respondent 1. Hence, the present appeal by SLP.
Issue
Whether respondent 1, who was recommended for the promotion before his retirement but did not receive actual promotion due to administrative delays, entitled to notional financial benefits of the promotional post after his retirement?
Analysis and Decision
The Court on perusal of Rule 54(1)(a) of the West Bengal Service Rules, clarified that promotion cannot be retrospectively granted after retirement, as it requires the actual assumption of duties and responsibilities of the promotional post. In the matter at hand, since respondent 1 superannuated before the final approval of his promotion, he could not have formally assumed the charge of the promotional post of Chief Scientific Officer. Therefore, although respondent 1 was recommended for promotion, Rule 54(1)(a) of the West Bengal Service Rules precludes him from getting the financial benefits of the promotional post without having taken on the responsibilities of the said post i.e. Chief Scientific Officer.
“Rule 54(1)(a) of the West Bengal Service Rules, 1971 stipulates that an employee must assume the responsibilities of a higher post to draw the corresponding pay, thus, preventing posthumous or retrospective promotions in the absence of an enabling provision.”
The Court reiterated-
“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.”
The Court relied on Bihar State Electricity Board v. Dharamdeo Das , wherein settled position of law was reiterated that, no retrospective promotion can be granted nor can any seniority be given on a retrospective basis from a date when an employee has not even been borne in the cadre particularly when this would adversely affect the direct recruits who have been appointed validity in the meantime.”
The Court ruled that Rule 54(1)(a) of the West Bengal Service Rules prevents posthumous or retrospective promotions in the absence of an enabling provision. While the Court recognised respondent 1’s right to be considered for promotion, which is a fundamental right under Articles and of the , the Court ruled that he did not hold an absolute right to the promotion itself.
CASE DETAILS
| Citation: Appellants : State W.B. Respondents : Amal Satpathi | Advocates who appeared in this case For Petitioner(s): Soumya Chakraborty, Sr. Adv.; Astha Sharma, AOR; Anju Thomas, Adv.; Himanshu Chakravarty, Adv. For Respondent(s): S.S. Rana & Co., AOR; Kunal Chatterji, AOR; Maitrayee Banerjee, Adv.; Rohit Bansal, Adv. |
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