Holding

A voluntarily retired officer cannot claim promotion or pay‑upgradation, and retrospective promotion is unavailable unless the service rules expressly provide for it; promotion must be based on actual vacancy and the selection process prescribed in the 2003 Rules.

Summary

The Supreme Court considered two appeals filed by the Union of India against former and serving officers who sought promotion to Junior Administrative Grade‑I (JAG‑I) and the associated pay‑upgradation. The first appellant had voluntarily retired in 2010 and claimed that he was entitled to promotion and enhanced pay under a DoPT circular, while the second appellant, still in service, sought retrospective promotion from a notional vacancy in 2009 despite the actual vacancy arising only in 2011. The Court examined Rule 4 and Rule 7 of the 2003 Civil Service Rules, held that JAG‑I is a promotional post governed by those rules, and that promotion can only be granted from the date of actual vacancy and after a departmental promotion committee’s selection. It reiterated the settled principle that a voluntarily retired officer ceases to have a jural relationship with the employer and cannot claim promotion or pay‑upgradation absent a specific rule. Consequently, the Court set aside the High Court’s order granting relief and allowed the appeals.

Issues considered

Whether a voluntarily retired officer can claim promotion or pay‑upgradation under service rules or a circular.
Whether a promotion can be granted retrospectively based on a notional vacancy when the actual vacancy arose later.
Whether the post of JAG‑I is a promotional post or merely an upgradation of JAG‑II.
Interpretation of Rule 4 and Rule 7 of the National Capital Territory of Delhi, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli (Civil Service) Rules, 2003 with respect to vacancy and promotion.
Whether the right to be considered for promotion is a fundamental right under Articles 14 and 16(1) of the Constitution.

Legislation cited

Subjects

PromotionRetrospective promotionVoluntary retirementPay upgradationService rulesSenioritiesConstitutional lawArticle 14Article 16(1)Civil Service RulesCentral Administrative Tribunal

Judgment

764 SUPREME COURT
[2022]REPORTS
2 S.C.R. 764 [2022] 2 S.C.R.

A UNION OF INDIA & ANR.
v.
MANPREET SINGH POONAM ETC.
(Civil Appeal Nos. 517-518 of 2017)
B MARCH 08, 2022
[SANJAY KISHAN KAUL AND M. M. SUNDRESH, JJ.]
National Capital Territory of Delhi, Andaman and Nicobar
Islands, Lakshdweep, Daman and Diu and Dadra and Nagar Haveli
(Civil Service) Rules, 2003 – r. 4, 7 – Claim by respondent-retired
C
seeking benefit of pay-upgradation – Held: It is a trite law that
once an officer retires voluntarily there is cessation of jural relation
between the employer and the employee and such an employee
cannot seek to agitate his past, as well as, future rights, if any, sans
the prescription of rules – Service Law.
D
National Capital Territory of Delhi, Andaman and Nicobar
Islands, Lakshdweep, Daman and Diu and Dadra and Nagar Haveli
(Civil Service) Rules, 2003 – r. 4, 7 – Claim by respondent-in-service
seeking the effect of promotion so granted from retrospective effect
– Held: A mere existence of the vacancy per se will not create a
E right in favour of an employee for retrospective promotion when
the vacancies in the promotional post is specifically prescribed under
the rules – Since the respondent-in-service was given promotion
after successful consideration by the department promotion
committee, appellant rightly fixed the promotion with the year of
actual vacancy, as per rules – Service Law.
F
Service Law: Promotion – Differentiating applicability of two
set of Rules – A right of 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
G by different set of rules.
Allowing the appeals, the Court
HELD: 1. Differential pay scale along with a process of
selection qua suitability fixing eligibility criteria are the factors
H
764
UNION OF INDIA & ANR. v. MANPREET SINGH POONAM ETC. 765

to determine whether a particular post is the same as the other A
or a promotional one. Such an exercise is not required since the
rules themselves are specific. When the rules are specific and
clear, there is no need for interpretation which may lead to a case
of judicial legislation. Submission of the learned counsel for the
appellant that the reasoning of the CAT, though not challenged
B
is unsustainable, since there is no occasion to challenge it with
the dismissal of the applications filed also holds good. [Para
13][771-G-H; 772-A-B]
2. 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 C
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 Respondent in Civil Appeal No.517 of
2017 was rightly not considered in the DPC in 2012 since he was
no longer in service at the relevant point of time. The High Court D
has committed an error in relying upon a circular, which has got
no application at all, particularly in the light of the finding that the
court is dealing with a case of promotion simpliciter as against
up- gradation of any nature. [Para 16][774-C-D]
3. On facts, there is no dispute that Respondent in Civil E
Appeal No.518 of 2017 was given promotion after the successful
consideration by the DPC. On such clearance the appellant has
rightly fixed the promotion with the year of actual vacancy, as per
rules. Thus, the Respondent neither on facts nor on law can claim
retrospective promotion, and that too from the year 2009 being
the year in which he was placed in the select list against a notional F
vacancy, especially when the then existing vacancy accrued only
in the year 2011, when the JAG-I officers were actually inducted
into IAS, against which he was promoted. As such, the promotion
cannot be granted retrospectively and extended to give benefit
and seniority from the date of notional vacancy, causing violence G
to Rule 4 and 7 of the 2003 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

H
766 SUPREME COURT REPORTS [2022] 2 S.C.R.

A the clearance through a selection process. When dealing 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
B
promotion which is governed by a different set of rules. In the
present case, the authority acting within the rules has rightly
granted promotion 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
C No.518 of 2017. 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. [Paras 17, 18][774-E-H; 775-A-B]
Union of India v. KK Vadhera and Ors., [1989] Supp 2
D SCC 625 : [1989] 1 Suppl. SCR 751; Ganga Vishan
Gujrati and Ors. v. State of Rajasthan, (2019) 16 SCC
28 : [2019] 11 SCR 444; Ajay Kumar Shukla and Ors.
v. Arvind Rai and Ors. 2021 SCC OnLine SC 1195 –
relied on
E Case Law Reference
[1989] 1 Suppl. SCR 751 relied on Para 19
[2019] 11 SCR 444 relied on Para 20
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 517-
F 518 of 2017.
From the Judgment and Order dated 05.12.2014 of the High Court
of Delhi at New Delhi in Writ Petition (C) Nos.8494 and 8516 of 2014.
Ms. Rekha Pandey, Sumit Teterwal, Ms. Snidha Mehra, Ms.
Prerna Kumari, Arvind Kumar Sharma, Advs. for the Appellants.
G Ms. Binu Tamta, Ms. Avnish Ahlawat, Dr. Monika Gusain, Advs.
for the Respondents.

H
UNION OF INDIA & ANR. v. MANPREET SINGH POONAM ETC. 767

The Judgment of the Court was delivered by A
M. M. SUNDRESH, J.
1. These appeals are filed by the respondents before the High
Court and the Central Administrative Tribunal, raising a challenge on
two grounds, namely: -
B
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 C
of suitability.
BRIEF FACTS:
2. Both the respondents before us worked with the appellant
holding the post of Junior Administrative Grade-II (hereinafter referred
to as “JAG-II”) officers. Respondent in Civil Appeal No.517 of 2017 D
retired in the said capacity voluntarily in the year 2010. Respondent in
Civil Appeal No.518 of 2017was promoted on ad hoc basis to Junior
Administrative Grade-I (hereinafter referred to as “JAG-I”) vide order
dated 27.12.2011 and regularized vide notification dated 17.04.2012 with
effect from 01.07.2011, after undergoing a selection process against the
E
vacancies in tune with Rule 4 of the National Capital Territory of
Delhi, Andaman and Nicobar Islands, Lakshadweep, Daman and
Diu and Dadra and Nagar Haveli (Civil Service) Rules, 2003
(hereinafter referred to as ‘2003 Rules’) which prescribes 10% as
the maximum in the cadre of JAG-I of the total sanctioned strength of
the posts in the service. The 2003 Rules were amended vide Notification F
dated 01.10.2009, and the sanctioned strength was increased to 472.
3. The respondents filed separate applications before the Central
Administrative Tribunal (CAT). Despite holding that the post of JAG-I is
neither wholly promotional nor an upgradation, the applications were
dismissed on the premise that a conjoint reading of Rule 4 and 7 of the G
2003 Rules would disentitle the relief being granted.
4. The respondents filed writ petitions assailing the aforesaid
decision of the CAT, which were allowed inter alia holding that
Respondent in Civil Appeal No.517 of 2017 is entitled to relief in terms
of the Circular No.AB.14017/47/2011-EST (DR) dated 01.08.2012 issued H
768 SUPREME COURT REPORTS [2022] 2 S.C.R.

A by the Department of Personnel and Training (DoPT), which 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
in Civil Appeal No.518 of 2017, the High Court reasoned 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
B
justification for denying it from 01.10.2009. Thus, both the writ petitions
found favour with the High Court. Assailing the aforesaid orders, the
appellants filed the present appeals.
ARGUMENTS:
C 5. Heard Ms. Rekha Pandey, learned counsel for the Appellants,
Ms. Avnish Ahlawat, learned counsel for the Respondent in Civil Appeal
No.517 of 2017 and party in person in Civil Appeal No. 518 of 2018.
6. The learned counsel appearing for the appellants submitted
that the High Court committed a fundamental error in granting the relief
D in favour of Respondent in Civil Appeal No.517 of 2017, Shri M.S.
Poonam, who admittedly voluntarily retired in the year 2010 while the
promotion was granted after the completion of the selection process on
04.04.2012 against the vacancies which arose in the year of 2011, in the
light of promotion of ‘JAG-I’ officers to IAS. The High Court has
misconstrued Circular No. AB.14017/47/2011-EST (DR) dated
E 01.08.20212 issued by the Department of Personnel and Training
(DoPT), which can be applied only for upgradation simpliciter. There is
no need to challenge the finding of the CAT when the applications filed
were dismissed.
7. As there is no vested or accrued right over a promotional post,
F 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. Thus, the embargo brought
forth by Rule 4 and 7 of the 2003 Rules would not facilitate such a relief.
Under the Indian Administrative Service (Appointment by promotion)
G Regulations 1954, and IAS (Regulations of Seniority Rules, 1987,
Officers inducted into IAS from ‘JAG-I’ get seniority from the date on
which vacancy arises, even though induction takes place subject to DPC.
In the present case, there was a delay in holding of Departmental
Promotion Committee (hereinafter referred to as ‘DPC’) for induction
of JAG-I officers into IAS, as such actual vacancy in JAG-I occurred in
H 2011, even though notional vacancy may have arisen in 2009 itself. Since
UNION OF INDIA & ANR. v. MANPREET SINGH POONAM ETC. 769
[M. M. SUNDRESH, J.]

the promotion from JAG-II to JAG-I is governed by the 2003 Rules, A
which prescribe promotion when actual vacancy arises and DPC takes
place, as such, a right would accrue to an officer only after his entry and
therefore, mere inclusion in the select list based on induction of JAG-I
officers into IAS, is of no consequence. Under the 2003 Rules, a vacancy
would mean an actual one and inclusion in the select list to a different
B
cadre governed by different rules would not create a deemed one. In
any case, on facts, the respondent in Civil Appeal No.518 of 2017 was
appointed to JAG-I service on an ad hoc basis only on 27.12.2011 and,
therefore, without being inducted in the said cadre, he cannot seek for
promotion with retrospective effect.
8. It was further submitted that regularization took place on C
17.04.2012 with effect from 01.07.2011, after his clearance by the DPC,
which is a benefit conferred upon him. Since there would be an excess
of 10% in the post of JAG-I, the aforesaid rules also clearly indicate that
JAG-I is a promotional post from the feeder category of JAG-II as
demonstrated through Schedule I and Schedule III in tune with the D
emphasis of Rule 4.1, 7.3, 7.4 and 7.5 of the 2003 Rules.
9. The counsel for Respondent in Civil Appeal No.517 of 2017
submitted that what has been done is only an upgradation and, therefore,
the consequential benefit will have to be given to the respondent as well.
Respondent in Civil Appeal No.518 of 2017, Shri Suresh Gupta, submitted E
that one has to see the proviso to Rule 4 of 2003 Rules, and for the delay
committed by the Appellants, he cannot be made to suffer. It was further
submitted that the Respondents were at Serial No.1 and 2, in the select
list for the year 2009, and as such, his appointment ought to be with
effect from 2009 and not 01.07.2011.
F
ANALYSIS AND CONCLUSION:
10. On considering the submissions made, it would only be
appropriate to place on record the relevant rules governing the issues
raised along with the schedules:
Rule 4.1 of the 2003 Rules: G
“4.Grades, strength and their review.-
(1) The duty posts included in the various grades, their
number and the scales of pay attached to them on the date
of commencement of these rules shall be as specified in
H
770 SUPREME COURT REPORTS [2022] 2 S.C.R.

A Schedule I: Provided that ten per cent and twenty per cent
of the sanctioned strength of the posts in the Service shall
be non-functional grades of Junior Administrative Grade-
I and Selection Grade respectively, and these shall be
operated within the respective number of posts specified
in Parts B and C of Schedule I: Provided further that the
B
number of posts in Junior Administrative Grade I shall not
exceed the total number of sanctioned posts in the Junior
Administrative Grade in the scale of pay of Rs.12,000-
16,500.”
Rule 7.3, 7.4 and 7.5 of the 2003 Rules:
C
“7. Future maintenance of the Service: -
xxx xxx xxx
(3) All the vacancies in the grades of Junior
Administrative Grade-I, Junior Administrative Grade-
D II and Selection Grade shall be filled by promotion from
amongst the officers in the immediate respective lower
grade with the minimum qualifying service as specified
in Schedule III.
xxx xxx xxx
E (4) (a) xxx xxx xxx
(b) xxx xxx xxx
(c)The promotion to the Junior Administrative Grade-
I and Selection Grade shall be made in the order of
seniority subject to rejection of unfit.
F (5) The selection in each case under sub-rule (4) shall
be made on the recommendations of the Departmental
Promotion Committee.”
Schedule I of the 2003 Rules:
“SCHEDULE I
G
[See rule 4(1)]
Name, number and scale of pay of duty posts in the grades
of the National Capital Territory of Delhi, Andaman and
Nicobar Islands Lakshadweep, Daman and Diu and Dadra
and Nagar Haveli Civil Service.
H
UNION OF INDIA & ANR. v. MANPREET SINGH POONAM ETC. 771
[M. M. SUNDRESH, J.]

A

B

Schedule IIIof the 2003 Rules:
“SCHEDULE III
[See rule 7 (3)]
C
Sl. Grade Method of promotion Eligibility for Promotion
No.
(1) (2) (3) (4)
1. Junior By promotion in the order A regularly appointed Junior
Administrative of seniority subject to Administrative Grade-II
Grade I rejection of unfit on the officer with a minimum of
recommendations of the eighteen years approved
Departmental Promotion service shall be eligible to D
Committee. be considered for promotion
to the Junior Administrative
Grade I

11. There is no dispute, at least to the effect, that the aforesaid
rules and the schedules govern the service condition, including the officer’s
promotion from JAG-II to JAG-I. Rule 4 fixes the cap of the sanctioned E
strength to the post to the maximum of 10%. The schedules to the
aforesaid rules clearly indicate the different pay scales for JAG-I and
JAG-II.
12. Rule 7 of the 2003 Rules specifies that the vacancies arising
in JAG-I shall only be filled by promotion from amongst the officers in F
the immediate respective lower grade with the minimum qualifying service
as specified in Schedule III. Schedule III clearly states that JAG-I is the
promotional post with JAG-II as the feeder cadre post, subject to the
other prescribed qualifications.
13. As there is no ambiguity in the aforesaid rules, we are not able G
to approve the views of the CAT and the High Court that JAG-I is a
mere upgradation of JAG-II. 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
H
772 SUPREME COURT REPORTS [2022] 2 S.C.R.

A rules themselves are specific. When the rules are specific and clear,
there is no need for interpretation which may lead to a case of judicial
legislation. We are also in agreement with the submission of the learned
counsel for the appellant that the reasoning of the CAT, though not
challenged is unsustainable, since there is no occasion to challenge it
with the dismissal of the applications filed.
B
14. The High Court also fell in error in taking note of the delay in
considering the case of the respondents to the promotional post of JAG-
I. No officer has a vested right to a promotional post, which is restricted
to that of consideration according to law. The law on this aspect is settled
C by this Court in the case of Ajay Kumar Shukla and Ors. v. Arvind Rai
and Ors., 2021 SCC OnLine SC 1195:
“37. 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 the case of Director, Lift Irrigation
D Corporation Ltd. v. Pravat Kiran Mohanty [(1991) 2 SCC 295] in
paragraph 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
E 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.”
F
38. A Constitution Bench in case of Ajit Singh v. State of Punjab
[(1999) 7 SCC 209], laying emphasis on Article 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
G fundamental right. Jagannadha Rao, J. speaking for himself
and Anand, CJI., Venkataswami, Pattanaik, Kurdukar, JJ.,
observed the same as follows in paragraphs 21 and 22 and 27:
“21 : Articles 14 and 16(1) : is right to be considered for
promotion a fundamental right
H
UNION OF INDIA & ANR. v. MANPREET SINGH POONAM ETC. 773
[M. M. SUNDRESH, J.]

22 : Article 14 and Article 16(1) are closely connected. They A
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
B
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 C
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
D
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. E
“Promotion based on equal opportunity and seniority attached
to such promotion are facets of fundamental right under Article
16(1)
xxx xxx xxx
27. In our opinion, the above view expressed in Ashok Kumar F
Gupta and followed in Jagdish Lal and other cases, if it is
intended to lay down that the right guarantee 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
G
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 right from 1950.” H
774 SUPREME COURT REPORTS [2022] 2 S.C.R.

A 15. On facts, we find that promotions could be given for the reason
that the migration of the then incumbent in the post of JAG-I, despite
being in the select list to the cadre of IAS, did not take place and thus,
they were working in the said post till the date of notification paving
way. The aforesaid factual position not disputed, the rigor of Rule 4
would certainly come into play. We do not find the proviso to Rule 4
B
helping the case of the respondents. The post of JAG-I is certainly a
promotional post from the feeder cadre of the JAG-II.
16. 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
C agitate his past, as well as future rights, if any, sans the prescription of
rules. This would include the enhanced pay scale. The Respondent in Civil
Appeal No.517 of 2017 was rightly not considered in the DPC in 2012
since he was no longer in service at the relevant point of time. The High
Court has committed an error in relying upon a circular, which has got no
D application at all, particularly in the light of our finding that we are dealing
with a case of promotion simpliciter as against up-gradation of any nature.
17. On facts, there is no dispute that Respondent in Civil Appeal
No.518 of 2017 was given promotion after the successful consideration
by the DPC. On such clearance the appellant has rightly fixed the
E promotion with the year of actual vacancy, as per rules. Thus, the
Respondent neither on facts nor on law can claim retrospective promotion,
and that too from the year 2009 being the year in which he was placed
in the select list against a notional vacancy, especially when the then
existing vacancy accrued only in the year 2011, when the JAG-I officers
were actually inducted into IAS, against which he was promoted. As
F such, the promotion cannot be granted retrospectively and extended to
give benefit and seniority from the date of notional vacancy, causing
violence to Rule 4 and 7 of the 2003 Rules.
18. A mere existence of vacancy per se will not create a right in
favour of an employee for retrospective promotion when the vacancies
G 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
H only with respect to the rules governing the said promotion, and not a
UNION OF INDIA & ANR. v. MANPREET SINGH POONAM ETC. 775
[M. M. SUNDRESH, J.]

different set of rules which might apply to a promoted post facilitating A
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 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
B
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 C
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 D
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 E
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.”
F
20. Similarly, this Court in the case of Ganga Vishan Gujrati and
Ors. v. State of Rajasthan, (2019) 16 SCC 28 has held that:
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 G
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,
(1990) 2 SCC 715 . The principle was reiterated by this Court
in State of Bihar v. Akhouri Sachindra Nath, 1991 Supp (1) SCC H
776 SUPREME COURT REPORTS [2022] 2 S.C.R.

A 334 and State of Uttaranchal v. Dinesh Kumar Sharma, (2007) 1
SCC 683. In Pawan Pratap Singh v. Reevan Singh, (2011) 3 SCC
267, this Court revisited the precedents on the subject and observed:
(SCC pp. 281-82, para 45)
“45. … (i) The effective date of selection has to be understood
B in the context of the Service Rules under 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
C 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
D 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.
E (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
F 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, (2013) 8 SCC 693.”
21. For the aforesaid reasoning, we are unable to give our
G imprimatur to the reasoning of the High Court. Accordingly, the appeals
stand allowed and consequently, the order passed by the High Court
stand set aside. No costs.

Devika Gujral Appeals allowed.
(Assisted by : Mahendra Yadav, LCRA)
H