SC notes that a vacancy alone can not justify retrospective promotion

New Delhi: Tuesday's ruling by the Supreme Court clarifies that simply existing vacancies will not allow retrospective promotion of an employee.

According to Justices Sanjay Kishan Kaul and M M Sundresh: "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."

Moreover, when dealing with a case of promotion, it is necessary to keep in mind that there can never be parity between two different 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," the bench remarked.

In this case, the court ruled that the authority acted within the rules when granting promotion after clearance by the Departmental Promotion Committee (DPC) on April 17, 2012, taking into account the date on which the actual vacancies manifested.

"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. It is trite law that once an officer retires voluntarily, there is cessation of jural relationship 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. This would include the enhanced pay scale," the bench noted.

Upon setting aside the high court judgment, the higher court ruled that given the decision to grant promotion with effect from July 1, 2011, there is no justification for refusing it from October 1, 2009. The top court allowed the Centre's appeal against this judgment.

"As there is no vested or accrued right over a promotional post, in the absence of any vacancies actually in existence for the year 2009, the migration of the other officers of the Indian Administrative Service (IAS) cadre took place only in the year 2011," the bench added.

An officer, who admittedly retired voluntarily in 2010, was denied relief by the high court, the Centre argued. In the article, it says that the promotion occurred after the final selection process was completed in 2012, which was in response to the vacancies that arose in 2011 following the promotion of Junior Administrative Grade I (JAG-I) officers to the IAS.