BIHAR STATE ELECTRICITY BOARD AND OTHERSversusDHARAMDEO DAS

                  [2024] 7 S.C.R. 763 : 2024 INSC 549

              Bihar State Electricity Board and Others
                                  v.
                          Dharamdeo Das
                       (Civil Appeal No. 6977 of 2015)
                                  23 July 2024
           [Hima Kohli* and Ahsanuddin Amanullah, JJ.]

                            Issue for Consideration
       Issue arose as to whether promotion ought to be reckoned from
       the date it is granted or from the date when a vacancy occurs on
       the subject post or when the post itself is created.

                                   Headnotes†
       Service law – Promotion – Reckoning of – From the date
       promotion is granted or from the date when a vacancy occurs
       on the subject post or when the post itself is created:
       Held: Promotion is effective from the date it is granted and not from
       the date when a vacancy occurs on the subject post or when the
       post itself is created – On facts, respondent-physically challenged
       and belonged to the Scheduled Caste, appointed as Lower Division
       Assistant in 1976, thereafter given multiple promotions and finally,
       was granted accelerated promotion to the post of Joint Secretary
       vide notification of 2003 – Writ petition by the respondent seeking
       consideration of his case for promotion to the post of Joint Secretary
       with effect from 1997 and not from 2003 since the post of Joint
       Secretary for the reserved category candidate in the Board was
       vacant from 1997 and his case had not been considered for
       promotion from the said date, rightly dismissed by the Single Judge
       of the High Court, however, the Division Bench erred in allowing
       the same – Single Judge rightly held that merely because the
       respondent had completed the Kal Awadhi for promotion from the
       post of Under Secretary to Joint Secretary, would not necessarily
       entitle him for appointment from the date the post fell vacant – Not
       a case where the respondent was deprived of promotion to the
       next higher post, nor a case where the action of the Board was
       guided by any malafides or colourable exercise of power – There
       was no vacancy to the post of Joint Secretary, on the said post
       being reduced from six to three – Action of the Board was purely
       guided by administrative exigencies – Even otherwise, assuming
* Author
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       that there was a vacancy to the subject posts, it would not have
       automatically created a valuable right in favour of the respondent
       for claiming retrospective promotion to the next higher post – It is
       only when an actual vacancy arose that the respondent was granted
       the benefit of accelerated promotion and that too on going through
       the prescribed process – Thus, the impugned order set aside and
       the order passed by the Single Judge restored. [Paras 18, 27-31]
       Service Law – Promotion – Right to promotion:
       Held: Right to be considered for promotion has been treated not
       just as a statutory right but as a fundamental right, at the same
       time, there is no fundamental right to promotion itself – Spirit
       behind elevating the right for being considered for promotion to
       a fundamental right is enshrined in the principle of “equality of
       opportunity” in relation to matters of employment and appointment,
       subject to satisfying the eligibility criteria, as per the applicable
       rules – Failure to consider an employee for promotion even after
       satisfying the eligibility criteria would violate his/her fundamental
       right – However, there is a distinction between the stage of
       considering an employee for being promoted to taking the next step
       of recognizing the said right as a vested right for promotion, where
       line is to be drawn – Thus, right to be considered for promotion
       being a facet of the right to equal opportunity in employment and
       appointment, would have to be treated as a fundamental right
       guaranteed u/Arts.14 and 16(1) but such right cannot translate into
       a vested right of the employee for being necessarily promoted to
       the promotional post, unless the rules expressly provide for such a
       situation – Constitution of India – Art. 14 and 16(1). [Paras 18, 22]

                                Case Law Cited
       Nirmal Chandra Sinha v. Union of India and Others [2008] 5 SCR
       635 : (2008) 14 SCC 29; Union of India and Another v. Manpreet
       Singh Poonam and Another [2022] 2 SCR 764 : (2022) 6 SCC
       105; Ajay Kumar Shukla v. Arvind Rai [2021] 12 SCR 1178 :
       (2022) 12 SCC 579; Director, Lift Irrigation Corporation Ltd. v.
       Pravat Kiran Mohanty and Others [1991] 1 SCR 341 : (1991) 2
       SCC 295; Ajit Singh and Others v. State of Punjab and Others
       [1999] Supp. 2 SCR 521 : (1999) 7 SCC 209; K.V. Subba Rao
       and Others v. Government of Andhra Pradesh and Others [1988]
       2 SCR 1118 : (1988) 2 SCC 201; Union of India and Others v.
       K.K. Vadera and Others [1989] Supp. 1 SCR 751 : (1989) Supp.
[2024] 7 S.C.R.                                                               765

      Bihar State Electricity Board and Others v. Dharamdeo Das


     2 SCC 625; Sanjay Kumar Sinha-II and Others v. State of Bihar
     and Others [2004] Suppl. 2 SCR 834 : (2004) 10 SCC 734;
     State of Uttaranchal and Others v. Dinesh Kumar Sharma [2006]
     Supp. 10 SCR 1 : (2007) 1 SCC 683; State of Bihar and Others
     v. Akhouri Sachindra Nath and Others [1991] 2 SCR 410 : (1991)
     Supp 1 SCC 334; Keshav Chandra Joshi and Others v. Union
     of India and Others [1990] Supp. 2 SCR 573 : (1992) Supp 1
     SCC 272; Uttaranchal Forest Rangers’ Assn. (Direct Recruit) and
     Others v. State of U.P. and Others [2006] Suppl. 6 SCR 609 :
     (2006) 10 SCC 346; Nani Sha and Others s. State of Arunachal
     Pradesh and Others [2007] 6 SCR 1027 : (2007) 15 SCC 406;
     Ganga Vishan Gujarati v. State of Rajasthan [2019] 11 SCR 444 :
     (2019) 16 SCC 28; Direct Recruit Class II Engg. Officers’ Assn.
     v. State of Maharashtra [1990] 2 SCR 900 : (1990) 2 SCC 715;
     Pawan Pratap Singh v. Reevan Singh [2011] 2 SCR 831 : (2011)
     3 SCC 267; P. Sudhakar Rao v. U. Govinda Rao [2013] 13 SCR
     540 : (2013) 8 SCC 693 – referred to.

                                 List of Acts
     Constitution of India.

                              List of Keywords
     Promotion; Scheduled Caste category; Kal Awadhi; Malafides
     or colourable exercise of power; Administrative exigencies;
     Retrospective promotion to the next higher post; Arising of actual
     vacancy; Benefit of accelerated promotion; Right to promotion;
     Statutory right; Fundamental right to promotion; Principle of “equality
     of opportunity”; Right to equal opportunity in employment and
     appointment; Vested right of the employee for being promoted.

                              Case Arising From
     CIVIL APPELLATE JURISDICTION: Civil Appeal No.6977 of 2015
     From the Judgment and Order dated 20.10.2011 of the High Court of
     Patna in LPA No. 41 of 2008
                          Appearances for Parties
     Navin Prakash, Adv. for the Appellants.
     Amit Pawan, Anand Nandan, Hassan Zubair Waris, Suchit Singh
     Rawaat, Ms. Shivangi, Aavarsh, Advs. for the Respondent.
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                         Judgment / Order of the Supreme Court

                                      Judgment
       Hima Kohli, J
1.     The appellant – Bihar State Electricity Board1 has approached this
       Court assailing an order dated 20th October, 2011, passed by the
       Division Bench of the High Court of Judicature at Patna in a Letters
       Patent Appeal2 filed by the respondent against an order dated 3rd
       October, 2007, passed by the learned Single Judge in a writ petition3
       filed by the respondent.
2.     The respondent had averred in the writ petition that though he
       was promoted on the post of Joint Secretary on 5th March, 2003,
       the said promotion ought to be reckoned from July, 1997, when
       the post had actually fallen vacant. This plea was turned down by
       the learned Single Judge. However, the respondent succeeded in
       the intra court appeal preferred by him and as per the impugned
       judgement, the appellants have been directed to promote the
       respondent to the post of Joint Secretary with effect from 29th July,
       1997. By the time the impugned judgement was delivered, the
       respondent having superannuated, the appellants were directed to
       grant him all the benefits that would have accrued to him on such
       a post with retrospective effect.
       BACKGROUND
3.     The relevant facts of the case are that the respondent, who was
       physically challenged and belonged to the Scheduled Caste category,
       was appointed on a temporary basis on the post of Lower Division
       Assistant vide letter dated 14th May, 1976. He joined the said post
       on 1st June, 1976. Vide letter dated 9th June, 1982 issued by the
       Board, the respondent was promoted to the post of Upper Division
       Assistant on an officiating basis.
4.     Vide Resolution dated 12th August, 1983, the Board decided that out
       of six sanctioned posts of Joint Secretary for the Board Secretariat,
       two shall be manned by members of the Engineering Service of the


1    For short “Board”
2    LPA No. 41 of 2008
3    CWJC No. 9611 of 2005
[2024] 7 S.C.R.                                                     767

      Bihar State Electricity Board and Others v. Dharamdeo Das


     Board, two by deputationists or Government Servants of appropriate
     rank and two by Ministerial Officers of the Board Secretariat.
5.   Vide Office order dated 17th September, 1992, the respondent was
     granted promotion as an Upper Division Assistant on an officiating
     basis with effect from 23rd July, 1982. By the Board’s Notification
     dated 17th September, 1992, the respondent was also granted
     accelerated promotion to the post of Section Officer with effect
     from 23rd July, 1982.
6.   The Board issued a Notification dated 30th June, 1995, granting
     the respondent accelerated promotion on the post of Section
     Officer (Senior Grade) with effect from 11th December, 1986. Again,
     Notification dated 1st July, 1995 was issued by the Board granting
     him accelerated promotion for the post of Administrative Officer on
     a notional basis with effect from 25th July, 1989.
7.   On 26th December, 1991, the Board passed a Resolution determining
     the Kal Awadhi for Scheduled Caste/Scheduled Tribe and General
     Category candidates for promotion from one grade to another grade
     for various categories of employees. The said Resolution fixed the
     Kal Awadhi for promotion from the post of Under Secretary to Joint
     Secretary in the General Administrative Cadre (Board Headquarter)
     as three years. It also stated that “the Kal Awadhi for candidates
     belonging to the Scheduled Castes and Scheduled Tribes for
     promotion to the next higher grade will be one year less than what
     has been mentioned for candidates not belonging to Scheduled
     Caste and Scheduled Tribes”.
8.   Vide Notification dated 9th July, 1995 the respondent was granted
     accelerated promotion to the post of Under Secretary and finally, he
     was granted accelerated promotion to the post of Joint Secretary,
     vide Notification dated 5th March, 2003.
9.   On 6/8th December, 2003, the Board passed a Resolution deciding
     to reduce the number of sanctioned posts of Joint Secretary from
     six to three at its headquarters at Patna and accordingly, issued an
     Office Order dated 24th December, 2003 reducing the six sanctioned
     posts of Joint Secretary to three. One post was to be manned by an
     Officer from the Bihar Administrative Service of suitable rank, the
     second one by a Ministerial officer of the Board Secretariat Cadre
     and the third one by an Officer from the Engineering Cadre.
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       ENSUING LITIGATION
10. Dissatisfied with the Notification dated 5th March, 2003 issued by
    the Board granting him accelerated promotion from the post of
    Under Secretary to Joint Secretary, the respondent filed a writ
    petition4 before the High Court of Patna for considering his case for
    promotion to the post of Joint Secretary with effect from 29th July,
    1997 and not from 5th March, 2003 on a plea that though the post
    of Joint Secretary for the reserved category candidate in the Board
    was vacant from 29th July, 1997, his case had not been considered
    for promotion from the said date.
11. Noting that a representation in this regard submitted by the respondent
    was pending before the Secretary of the Board, vide order dated 23rd
    September, 2004, the writ petition5 was disposed of by the learned
    Single Judge and the Board was directed to consider the said
    representation and pass a reasoned order within a fixed time line.
12. The pending representation of the respondent was decided by the
    Board by a Resolution dated 9th June, 2005. The said Resolution noted
    that during his 29 years of service, the respondent was granted five
    promotions. In view of the bifurcation of the erstwhile State of Bihar
    into the present State of Bihar and Jharkhand, the Jharkhand State
    Electricity Board was constituted with effect from 2nd January, 2004.
    This had resulted in re-organization of the administrative/ministerial
    cadre at the Headquarters of the Board. Post re-organisation of
    the Administrative cadre, only three posts of Joint Secretary were
    fixed for the Board out of which only one post was earmarked for
    Officers of the Ministerial Cadre, like the respondent herein. The
    Board rejected the claim of the respondent for seeking promotion
    to the post of Joint Secretary with effect from 29th July, 1997 on a
    plea that he had completed the prescribed Kal Awadhi on the said
    date and the marked post of the Joint Secretary from amidst the
    Officers of the Ministerial Cadre was vacant at that time. It was
    observed that the said post was not vacant from 29th July, 1997 and
    that Officers from the Engineering Service of the Board and Officers
    of the Administrative Service of the Bihar Government were already



4   CWJC No. 14194 of 2001
5   ibid
[2024] 7 S.C.R.                                                         769

      Bihar State Electricity Board and Others v. Dharamdeo Das


     posted as Joint Secretary. Therefore, it was not possible to grant
     promotion to the respondent on the post of Joint Secretary with
     effect from 29th July, 1997.
13. The aforesaid decision taken by the Board vide Resolution dated
    9th June, 2005, was challenged by the respondent in a writ petition6.
    Vide judgement dated 3rd October, 2007, the learned Single Judge
    dismissed the said writ petition holding inter alia that Resolution dated
    26th December, 1991 passed by the Board was only a basic guideline
    for determining the Kal Awadhi for promotion from one cadre to the
    other so that a person acquires minimum period of experience on the
    given post before he can be promoted to the next higher post and
    such a guideline can only be treated as directory in nature and not
    mandatory. The learned Single Judge concurred with the submission
    made by the appellants that promotion given to the respondent on
    5th March, 2003, was on account of certain administrative problems
    that had cropped up when the State of Bihar was bifurcated into the
    present State of Bihar and State of Jharkhand on 15th November,
    2003. It was held that merely because the respondent had completed
    the period contemplated under the Kal Awadhi for the next higher
    post would not be a criteria to shift his date of promotion from 5th
    March, 2003 to the year 1997.
14. Aggrieved by the aforesaid decision of the learned Single Judge,
    the respondent filed an intra court appeal. The said judgement was
    overturned by the Division Bench by the impugned judgement,
    observing that the Resolution dated 9th June, 2005 whereby the
    respondent’s representation was rejected by the Board, was
    unsustainable since it did not adhere to the Kal Awadhi as mentioned
    in the Resolution dated 26th December, 1991. The respondent who
    had already superannuated from the post of Under Secretary,
    was therefore held entitled to all the benefits of such a post with
    retrospective effect. It is the said decision that has been challenged
    by the appellant Board in the present appeal.
     ARGUMENTS ADVANCED
15. Mr. Navin Prakash, learned Counsel for the appellant Board
    submitted that the Division Bench has misconstrued the concept of


6   CWJC No. 9611 of 2005
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       Kal Awadhi which actually denotes qualifying service and does not
       mean that immediately upon completion of the period of three years
       for promotion from the post of Under Secretary to Joint Secretary,
       as contemplated in the Resolution dated 26th December, 1991, an
       employee ought to be compulsorily promoted. He urged that the Kal
       Awadhi prescribed for promotion from one post to another is only
       an eligibility criteria that has been laid down and upon completion
       of the said period, the incumbent employee becomes eligible for
       being considered for promotion to the next higher post but it is
       not as if there is a compulsion to promote him immediately upon
       completion of the period of the Kal Awadhi. Highlighting the facts
       that the respondent herein had already earned five accelerated
       promotions in a span of about 23 years of service, learned counsel
       submitted that the date on which the respondent had completed
       his Kal Awadhi for promotion from the post of Under Secretary to
       Joint Secretary, i.e., on 29th July, 1997, there was no vacancy on
       the post of Joint Secretary till the actual date of his promotion i.e.,
       5th March, 2003 which fact has been completely overlooked in the
       impugned judgement. To fortify the aforesaid submission learned
       counsel cited decisions of this Court in Nirmal Chandra Sinha vs.
       Union of India and Others7 and Union of India and Another vs.
       Manpreet Singh Poonam and Another.8
16. Per contra, Mr. Amit Pawan, learned counsel for the respondent
    supported the impugned judgement and submitted that the respondent
    was rightly promoted to the post of Under Secretary with effect from
    29th July, 1997 since he had already completed the Kal Awadhi on the
    said date, in terms of the Resolution dated 26th December, 1991 issued
    by the Board. He submitted that besides the fact that the respondent
    falls under the reserved category and is physically challenged, he was
    also the senior most member in the cadre of Under Secretary on the
    relevant date i.e., 29th July, 1997. Having completed the Kal Awadhi
    period as on the said date, the respondent was qualified and eligible
    for promotion and ought to have been immediately considered for
    promotion with effect from the said date. He therefore submits that
    the impugned judgement does not deserve interference.



7   [2008] 5 SCR 635 : (2008) 14 SCC 29
8   [2022] 2 SCR 764 : (2022) 6 SCC 105
[2024] 7 S.C.R.                                                              771

        Bihar State Electricity Board and Others v. Dharamdeo Das


      DISCUSSION ON THE LEGAL POSITION
17. We have perused the pleadings and the records and given our
    thoughtful consideration to the submissions advanced by learned
    counsel for the parties.
18. It is no longer res integra that a promotion is effective from the date
    it is granted and not from the date when a vacancy occurs on the
    subject post or when the post itself is created. No doubt, a right to
    be considered for promotion has been treated by courts not just as
    a statutory right but as a fundamental right, at the same time, there
    is no fundamental right to promotion itself. In this context, we may
    profitably cite a recent decision in Ajay Kumar Shukla vs. Arvind
    Rai9 where, citing earlier precedents in Director, Lift Irrigation
    Corporation Ltd. vs. Pravat Kiran Mohanty and Others10 and
    Ajit Singh and Others vs. State of Punjab and Others,11 a three
    Judge Bench observed thus:
             41. This Court, time and again, has laid emphasis on
             right to be considered for promotion to be a fundamental
             right, as was held by K. Ramaswamy, J., in Director, Lift
             Irrigation Corpn. Ltd. v. Pravat Kiran Mohanty and
             Others9 in para 4 of the report which is reproduced below:
                     “4………..There is no fundamental right to promotion,
                     but an employee has only right to be considered
                     for promotion, when it arises, in accordance with
                     relevant rules. From this perspective in our view
                     the conclusion of the High Court that the gradation
                     list prepared by the corporation is in violation of
                     the right of respondent-writ petitioner to equality
                     enshrined under Article 14 read with Article 16 of the
                     Constitution, and the respondent-writ petitioner was
                     unjustly denied of the same is obviously unjustified.”
             42. A Constitution Bench in Ajit Singh and Others v.
             State of Punjab and Others,10 laying emphasis on Article


9    [2021] 12 SCR 1178 : (2022) 12 SCC 579
10   [1991] 1 SCR 341 : (1991) 2 SCC 295
11   [1999] Supp. 2 SCR 521 : (1999) 7 SCC 209
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       14 and Article 16(1) of the Constitution of India held that
       if a person who satisfies the eligibility and the criteria for
       promotion but still is not considered for promotion, then
       there will be clear violation of his/her’s fundamental right.
       Jagannadha Rao, J. speaking for himself and Anand,
       C.J., Venkataswami, Pattanaik, Kurdukar, JJ., observed
       the same as follows in paras 22 and 27 :
            “Articles 14 and 16(1) : is right to be considered for
            promotion a fundamental right
            22. Article 14 and Article 16(1) are closely connected.
            They deal with individual rights of the person.
            Article 14 demands that the ‘State shall not deny
            to any person equality before the law or the equal
            protection of the laws’. Article 16(1) issues a positive
            command that:
            ‘there shall be equality of opportunity for all citizens
            in matters relating to employment or appointment to
            any office under the State’.
            It has been held repeatedly by this Court that clause
            (1) of Article 16 is a facet of Article 14 and that
            it takes its roots from Article 14. The said clause
            particularises the generality in Article 14 and identifies,
            in a constitutional sense “equality of opportunity”
            in matters of employment and appointment to any
            office under the State. The word “employment” being
            wider, there is no dispute that it takes within its fold,
            the aspect of promotions to posts above the stage
            of initial level of recruitment. Article 16(1) provides
            to every employee otherwise eligible for promotion
            or who comes within the zone of consideration, a
            fundamental right to be “considered” for promotion.
            Equal opportunity here means the right to be
            “considered” for promotion. If a person satisfies the
            eligibility and zone criteria but is not considered for
            promotion, then there will be a clear infraction of his
            fundamental right to be “considered” for promotion,
            which is his personal right.
[2024] 7 S.C.R.                                                                773

        Bihar State Electricity Board and Others v. Dharamdeo Das


                     “Promotion” based on equal opportunity and seniority
                     attached to such promotion are facets of fundamental
                     right under Article 16(1)
                                            *          *   *
                     27. In our opinion, the above view expressed in
                     Ashok Kumar Gupta [Ashok Kumar Gupta v. State
                     of U.P.,12 and followed in Jagdish Lal [Jagdish Lal v.
                     State of Haryana,13 and other cases, if it is intended
                     to lay down that the right guaranteed to employees for
                     being “considered” for promotion according to relevant
                     rules of recruitment by promotion (i.e. whether on the
                     basis of seniority or merit) is only a statutory right
                     and not a fundamental right, we cannot accept the
                     proposition. We have already stated earlier that the
                     right to equal opportunity in the matter of promotion in
                     the sense of a right to be “considered” for promotion
                     is indeed a fundamental right guaranteed under Article
                     16(1) and this has never been doubted in any other
                     case before Ashok Kumar Gupta [Ashok Kumar
                     Gupta v. State of U.P.11], right from 1950.”
19. A similar view has also been expressed earlier hereto in K.V. Subba
    Rao and Others vs. Government of Andhra Pradesh and Others,14
    Union of India and Others vs. K.K. Vadera and Others,15 Sanjay
    Kumar Sinha-II and Others vs. State of Bihar and Others,16State
    of Uttaranchal and Others vs. Dinesh Kumar Sharma,17 Nirmal
    Chandra Sinha 6 (supra) and recently in Manpreet Singh Poonam 7
    (supra).
20. In State of Bihar and Others vs. Akhouri Sachindra Nath and
    Others,18 it was held that retrospective seniority cannot be given to



12   (1997) 5 SCC 201
13   (1997) 6 SCC 538
14   [1988] 2 SCR 1118 : (1988) 2 SCC 201
15   [1989] Supp. 1 SCR 751 : (1989) Supp. 2 SCC 625
16   [2004] Suppl. 2 SCR 834 : (2004) 10 SCC 734
17   [2006] Supp. 10 SCR 1 : (2007) 1 SCC 683
18   [1991] 2 SCR 410 : 1991 Supp (1) SCC 334
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       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. The same view was reiterated in Keshav
       Chandra Joshi and Others vs. Union of India and Others,19 where
       it was held that when a quota is provided for, then the seniority of
       the employee would be reckoned from the date when the vacancy
       arises in the quota and not from any anterior date of promotion or
       subsequent date of confirmation. The said view was restated in
       Uttaranchal Forest Rangers’ Assn. (Direct Recruit) and Others
       vs. State of U.P. and Others,20 in the following words :
             “37. We are also of the view that no retrospective promotion
             or seniority can be granted from a date when an employee
             has not even been borne in the cadre so as to adversely
             affect the direct recruits appointed validly in the meantime,
             as decided by this Court in Keshav Chandra Joshi and
             Others v. Union of India and Other18 held that when
             promotion is outside the quota, seniority would be reckoned
             from the date of the vacancy within the quota rendering the
             previous service fortuitous. The previous promotion would
             be regular only from the date of the vacancy within the
             quota and seniority shall be counted from that date and
             not from the date of his earlier promotion or subsequent
             confirmation. In order to do justice to the promotees, it
             would not be proper to do injustice to the direct recruits….…
             38. This Court has consistently held that no
             retrospective promotion can be granted nor can any
             seniority be given on 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 validly
             in the meantime.”
                                                      (emphasis added)
21. In Nani Sha and Others vs. State of Arunachal Pradesh and
    Others,21 it was observed that mere existence of a vacancy is not


19   [1990] Supp. 2 SCR 573 : 1992 Supp (1) SCC 272
20   [2006] Suppl. 6 SCR 609 : (2006) 10 SCC 346
21   [2007] 6 SCR 1027 : (2007) 15 SCC 406
[2024] 7 S.C.R.                                                          775

        Bihar State Electricity Board and Others v. Dharamdeo Das


      sufficient for an employee to claim seniority and the date of actual
      appointment has to be in accordance with the prescribed procedure. In
      Dinesh Kumar Sharma16 (supra), the following pertinent observations
      were made :
             “34. Another issue that deserves consideration is whether
             the year in which the vacancy accrues can have any
             relevance for the purpose of determining the seniority
             irrespective of the fact when the persons are recruited.
             Here the respondent’s contention is that since the vacancy
             arose in 1995-1996, he should be given promotion and
             seniority from that year and not from 1999, when his
             actual appointment letter was issued by the appellant.
             This cannot be allowed as no retrospective effect can be
             given to the order of appointment order under the Rules
             nor is such contention reasonable to normal parlance. This
             was the view taken by this Court in Jagdish Ch. Patnaik
             v. State of Orissa.”22
22. The spirit behind elevating the right for being considered for promotion
    to a fundamental right is enshrined in the principle of “equality of
    opportunity” in relation to matters of employment and appointment to a
    position under the State. Once employed, the employees are entitled
    for being considered for promotion to the next higher post subject
    to their satisfying the eligibility criteria, as per the applicable rules.
    Failure to consider an employee for promotion even after satisfying
    the eligibility criteria would violate her fundamental right. However, a
    clear distinction has been drawn between the stage of considering an
    employee for being promoted to taking the next step of recognizing
    the said right as a vested right for promotion. That is where the
    line has to be drawn. Stated differently, a right to be considered for
    promotion being a facet of the right to equal opportunity in employment
    and appointment, would have to be treated as a fundamental right
    guaranteed under Articles 14 and 16(1) of the Constitution of India
    but such a right cannot translate into a vested right of the employee
    for being necessarily promoted to the promotional post, unless the
    rules expressly provide for such a situation.



22   (1998) 4 SCC 456
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23. The view that seniority can neither be reckoned from the date when
    a vacancy arises, nor can it be granted retrospectively unless the
    service rules specifically provide for such a situation, is fortified
    by the decision of this Court in K.K. Vadera 14 (supra) which has
    emphasised in no uncertain terms the settled position in law that
    promotion to a post should only be granted from the date of the
    promotion and not from the date on which a vacancy may have
    arisen. In Ganga Vishan Gujarati vs State of Rajasthan,23 this
    Court had reiterated the principle that retrospective seniority cannot
    be granted to an employee from the date when she was not even
    borne on the cadre. This principle has been built upon by a line of
    precedents starting with the decision of the Constitution Bench of
    this Court in Direct Recruit Class II Engg. Officers’ Assn. v. State
    of Maharashtra,24 followed in Akhouri Sachindra Nath17 (supra),
    Dinesh Kumar Sharma16 (supra) and several other cases.
       24. In Pawan Pratap Singh vs. Reevan Singh,25 this Court
           had taken note of the earlier decision in Pravat Kiran
           Mohanty 9 (supra) and summarised the position in the
           following words :
             45. A consistent line of precedent of this Court follows
             the principle that retrospective seniority cannot be granted
             to an employee from a date when the employee was not
             borne on a cadre. Seniority amongst members of the
             same grade has to be counted from the date of initial entry
             into the grade. This principle emerges from the decision
             of the Constitution Bench of this Court in Direct Recruit
             Class II Engg. Officers’ Assn. v. State of Maharashtra
             [Direct Recruit Class II Engg. Officers’ Assn. v. State of
             Maharashtra.23 The principle was reiterated by this Court
             in State of Bihar v. Akhouri Sachindra Nath17 and State
             of Uttaranchal v. Dinesh Kumar Sharma.16 In Pawan
             Pratap Singh v. Reevan Singh,24 this Court revisited the
             precedents on the subject and observed :
             ‘45. … (i) The effective date of selection has to be
             understood in the context of the service rules under


23   [2019] 11 SCR 444 : (2019) 16 SCC 28
24   [1990] 2 SCR 900 : (1990) 2 SCC 715
25   [2011] 2 SCR 831 : (2011) 3 SCC 267
[2024] 7 S.C.R.                                                              777

        Bihar State Electricity Board and Others v. Dharamdeo Das


             which the appointment is made. It may mean the date on
             which the process of selection starts with the issuance of
             advertisement or the factum of preparation of the select
             list, as the case may be.
             (ii) Inter se seniority in a particular service has to be
             determined as per the service rules. The date of entry in a
             particular service or the date of substantive appointment is
             the safest criterion for fixing seniority inter se between one
             officer or the other or between one group of officers and
             the other recruited from different sources. Any departure
             therefrom in the statutory rules, executive instructions or
             otherwise must be consistent with the requirements of
             Articles 14 and 16 of the Constitution.
             (iii) Ordinarily, notional seniority may not be granted from
             the backdate and if it is done, it must be based on objective
             considerations and on a valid classification and must be
             traceable to the statutory rules.
             (iv) The seniority cannot be reckoned from the date
             of occurrence of the vacancy and cannot be given
             retrospectively unless it is so expressly provided by
             the relevant service rules. It is so because seniority
             cannot be given on retrospective basis when an
             employee has not even been borne in the cadre and
             by doing so it may adversely affect the employees
             who have been appointed validly in the meantime.’
             This view has been re-affirmed by a Bench of three Judges
             of this Court in P. Sudhakar Rao v. U. Govinda Rao.”26
                                                       (emphasis added)
      [Also refer : P. Sudhakar Rao v. U. Govinda Rao 25 and Union of
      India and Another v. Manpreet Singh Poonam and Another 7]
      APPLICATION OF THE LAW TO THE FACTS OF THE CASE
25. Coming back to the facts of the instance case, there is no dispute
    that the respondent who started his career as a Lower Division
    Assistant on 1st June, 1976, was promoted to the post of Upper


26   [2013] 13 SCR 540 : (2013) 8 SCC 693
778                                                          [2024] 7 S.C.R.

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       Division Assistant on an officiating basis with effect from 23rd July,
       1980, was granted the first accelerated promotion to the post of
       Section Officer with effect from 23rd July, 1982, a second accelerated
       promotion on the post of Section Officer (Senior Grade) with effect
       from 11th December, 1986, a third accelerated promotion to the post
       of Administrative Officer with effect from 25th July, 1989, a fourth
       accelerated promotion to the post of Under Secretary on 9th July,
       1995 and finally, a fifth accelerated promotion on the post of Joint
       Secretary on 5th March, 2003. This goes to show that within a span
       of ten years five months (from 23rd July, 1982 to 5th March, 2003)
       the respondent was granted five promotions by the appellant-Board.
26. Much emphasis has been laid by learned counsel for the respondent
    on the Resolution dated 26th December, 1991 to contend that once
    the respondent had completed the required period of three years
    mentioned as Kal Awadhi for promotion from the post of Under
    Secretary to Joint Secretary, he was automatically entitled for
    promotion to the next higher post. The said submission is however
    found to be devoid of merits.
27. Resolution dated 26 th December, 1991 prescribed a minimum
    qualifying service before considering the case of an employee for
    promotion from one grade to another. The underlying aim of the
    said resolution is to ensure that an employee gathers sufficient
    experience as may be required before he can be considered for
    promotion to the next higher post. But that is not to state that on
    completion of the duration of Kal Awadhi for promotion, an employee
    would automatically be entitled for promotion to the next higher post.
    No employee can lay a claim for being promoted to the next higher
    post merely on completing the minimum qualifying service. Such an
    interpretation of the resolution would be fallacious and virtually result
    in nullifying the settled law of a right inhering in an employee for being
    considered for promotion being a fundamental right. By no stretch of
    imagination can a right for being appointed to the promotional post
    be treated as a vested right.
28. We do not find any error in the stand taken by the appellant-Board in
    terms of its Resolution dated 9th June, 2005, whereby the respondent’s
    plea for shifting his date of promotion to the post of Joint Secretary
    from 5th March, 2003 to 29th July, 1997 was rejected for the reason
    that there was no vacant post of Joint Secretary during the period
[2024] 7 S.C.R.                                                       779

      Bihar State Electricity Board and Others v. Dharamdeo Das


     between 29th July, 1997 to 5th March, 2003 on account of the fact that
     after the bifurcation of the erstwhile State of Bihar into the present
     State of Bihar and Jharkhand, vide Resolution dated 6/8th December,
     2003 the appellant-Board had taken a calibrated decision to slash the
     number of sanctioned posts of Joint Secretary from six to three at the
     headquarters at Patna. The subsequently issued Office Order dated
     24th December, 2003 gave effect to such an intention and declared
     that from out of the reduced posts of Joint Secretary, one would be
     manned by an Officer of suitable rank from the Bihar Administrative
     Service, one from the Ministerial Officer of the Board Secretariat
     Cadre and the third from the Engineering Cadre.
29. In the instant case, records reveal that there was no vacancy to
    the post of Under Secretary in the appellant-Board on the said post
    being reduced from six to three. This step was taken by the Board
    due to administrative exigencies. We do not find any infirmity in the
    said decision. Even otherwise, assuming that there was a vacancy to
    the subject posts, it would not have automatically created a valuable
    right in favour of the respondent for claiming retrospective promotion
    to the next higher post. It is only when an actual vacancy arose that
    the respondent was granted the benefit of accelerated promotion
    and that too on going through the prescribed process.
     CONCLUSION
30. Given the above legal position, in our view, the Division Bench of
    the High Court ought to have refrained from interfering with the
    findings returned by the learned Single Judge who has rightly held
    that merely because the respondent had completed the Kal Awadhi
    for promotion from the post of Under Secretary to Joint Secretary,
    would not necessarily entitle him for appointment from the date the
    post fell vacant. This is not a case where the respondent has been
    deprived of promotion to the next higher post, nor is it a case where
    the action of the Board was guided by any malafides or colourable
    exercise of power. As noted above, the action of the Board was
    purely guided by administrative exigencies. The Resolution of the
    Board dated 26th December, 1991 for fixing the Kal Awadhi was
    only directory in nature and cannot be treated as statutory for the
    respondent to have claimed an entitlement to promotion reckoned
    from 29th July, 1997, instead of 5th March, 2003. Such a view is in
    consonance with the settled legal position and cannot be faulted.
780                                                       [2024] 7 S.C.R.

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31. Accordingly, the present appeal succeeds. For the reasons stated
    aforesaid, the impugned order dated 20th October 2011 is set aside
    and the order dated 3rd October, 2007 passed by the learned Single
    Judge is restored. Parties are left to bear their own expenses.

       Result of the case: Appeal allowed.



       †
           Headnotes prepared by: Nidhi jain