Promotion is governed by rules; no vested right to promotion: Supreme Court

The Supreme Court on Tuesday observed that if law and rules relating to an issue are clear and specific, there is no requirement of any interpretation by courts which might amount to judicial legislation [Union of India v. Manpreet Singh Poonam etc.].A Bench of Justices Sanjay Kishan Kaul and MM Sundresh was adjudicating a matter of a voluntary retiree seeking promotion.Pertinently, the Court held that an officer does not have vested right to a promotional post. A right to promotion, subsequent benefits and seniority would arise only arise as per the rules governing the said promotion.“Differential pay scale along with a process of selection qua suitability fixing eligibility criteria are the factors to determine whether a particular post is the same as the other or a promotional one. We feel that such an exercise is not required since the rules themselves are specific ... there is no need for interpretation which may lead to a case of judicial legislation,” the judgment said. .The respondents were Junior Administrative Grade (JAG-II) officers with the Central government. One of them voluntarily retired as a JAG-II officer while the other was promoted on ad hoc (temporary) basis to JAG-I after going through the selection process against the vacancies in tune with the rules that prescribe 10 per cent as the maximum in the cadre of JAG-I of the total sanctioned strength of the posts in the service. The other respondent was promoted in 2011, but he contended that the National Capital Territory of Delhi, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli Rules (Rules) were amended in 2009, and hence, he was entitled to promotional benefits from that year as sanctioned strength of JAG-1 was increased. Writ petitions were filed in the High Court assailing the decision of the Central Administrative Tribunal (CAT) that dismissed the claims of the respondents. The High Court held that Respondent 1 was entitled to promotion to JAG-1 even after voluntarily retiring in light of a circular that “facilitates a retired officer who is otherwise eligible as on the due date to be considered for the benefit of “pay-upgradation”.” In the case of respondent 2, the High Court held that, “after keeping the officer without consideration for promotion for a long time, with the decision to grant promotion with effect from 01.07.2011, there is no justification for denying it from 01.10.2009.” Subsequently, the present appeals were filed by the Union of India on the following two grounds:i) A voluntary retiree cannot seek promotion as a matter of right sans rules governing. ii) A mere delay in consideration of the promotion would not create a vested right over a post that quantifies the maximum accommodation in terms of numbers, involving a process of suitability..Counsel for the respondent-retirees submitted what was done is only an upgradation and its consequential benefits will have to be given even as they cannot be made to suffer for any delay on their part. Counsel for the appellant argued that the High Court need not have challenged the CAT's finding, that too relying on a circular that only deals with upgradation of posts. There is no 'vested or accrued' right over a promotion post, and the 2-year delay in migration of officers in 2011 took place due to an absence of vacancies. Given that one of the respondents was an ad-hoc promotee without being inducted in the said cadre, he cannot seek the same with retrospective effect, the counsel added. .The Supreme Court at the outset observed that an officer voluntary retires ceases himself of a jural relationship by resorting to a “golden handshake” between the employer and employee. “Such a former employee cannot seek to agitate his past, as well as future rights, if any, sans the prescription of rules,” the Court said.The High Court committed an error by relying on a circular given that the matter deals with a promotion and not an upgradation, the top court observed. When dealing with a case of promotion, there can never be a parity between two separate sets of rules, and thus in this case rules applicable for a promoted post facilitating further promotion will not apply, the Bench emphasised. .The apex court said no officer has a vested right to a promotional post, which is restricted to that of consideration according to law. The Court relied on its judgment in Ajay Kumar Shukla v. Arvind Rai where it was held that there is no fundamental right to promotion, but only that of being considered for it in accordance with rules. “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,” the Bench in the instant appeal observed. .Allowing the appeal and setting aside the High Court order, the top court Bench held that JAG-I is not a mere upgradation over JAG-II, even as JAG-I is certainly a promotional post from the feeder cadre of the JAG-II. .Advocate Rekha Pandey appeared for the appellants. Advocate Avnish Ahlawat appeared for the first respondent while the second appeared in person.[Read Judgment]