No Right To Ante-Dating Of Promotion Merely Because Post Remained Unfilled Despite Availability Of Eligible Candidate: Delhi High Court

The Delhi High Court has made it clear that an employee cannot claim right to antedating of promotion merely because he was promoted at a later point in time, keeping the vacant post unfilled without providing reasons.A division bench of Justices C. Hari Shankar and Ajay Digpaul observed,“At the outset, we reject the argument that a right to ante-dating of promotion arises in case a post that has remained unfilled, without reason, where an eligible candidate exists, who is promoted at a later point in time.”It reasoned that while an employee has the right to be considered for promotion, the same is not an indefeasible right to be promoted.In the case at hand, Petitioner was promoted to the post of Deputy Judge Attorney General/ Deputy Commandant in 2009. He however claimed that he had completed six years of regular service in the year 2002 and thus, in terms of the Recruitment Rules of 1999, he became eligible for promotion back then.Petitioner claimed that despite fulfilling the requisite eligibility criteria, his case for promotion and seniority was not processed in a timely manner, without assigning any reasons.The High Court however cited various precedents to conclude that an indefeasible right to promotion does not arise merely because a post lies vacant while an eligible candidate exists.Petitioner then submitted that his promotion was delayed despite making numerous representations to the authority.The High Court said that while the facts indicate a certain degree of inaction of the Respondents, it said, there is no allegation of malafides against the Respondents. It held,“A mere non consideration of his representations, prima facie, have not discharged the lofty burden of establishing mala fides…A plea of mala fides is a heavy burden to discharge, resting on the shoulders of one who raises it.”Nonetheless, the Court directed the convening of a review Department Promotion Committee for the year 2002, to assess the Petitioner's suitability for promotion. “In the event that he is found suitable for promotion to the post of Dy. JAG / DC in the year 2002, order dated 3 November 2009 shall stand quashed and set aside,” said the Court.Appearance: Mr. A.K. Behera, Sr. Adv., with Mr. Amarendra P. Singh, Adv. for Petitioner; Mr. Bhagwan Swaroop Shukla, CGSC, with Mr. Sarvan Kumar, Mr. Mukesh K. M. Pandey, Mr. Satyam Singh, Advs. Mr. P.R. Rajhans, Mr. Vivek Singh, Mr. Shubham Gupta, Mr. Lajpat Rai, and Mr. Tarun Kumar, Advs. for R-6. Case title: Bhupinder Kumar Malik v. Union of IndiaCitation: 2025 LiveLaw (Del) 1013Case no.: W.P.(C) 14156/2009Click here to read order

No Right To Ante-Dating Of Promotion Merely Because Post Remained Unfilled Despite Availability Of Eligible Candidate: Delhi High Court

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