Departmental Promotion Committee Not Convening Alone Not Special Circumstance To Confer Retrospective Promotions: Meghalaya High Court

The Meghalaya High Court on Monday held that retrospective promotions are permissible on the consideration of a special circumstance surrounding a particular case but non-sitting of "Departmental Promotion Committee” (DPC) is not a special circumstance to confer this career advancement retrospectively.The observation came from Justice H. S. Thangkhiew while hearing a plea in terms of which the court was adjudicating upon the justifiability of the claim of the petitioners to promotion from a retrospective date.In their plea, the petitioner submitted that on the date when they had become eligible for promotion, vacancies were available but due to the non-sitting of the DPC, the said promotions could not be effected, which resulted in their loss of seniority thereby affecting their future promotional prospects.In the case at hand the petitioners had joined services in 2009 as Lower Divisional Assistants and rendered 5 years of continuous service by 2014, which in turn made them eligible for promotion to the post of Upper Divisional Assistants. Since 2012, vacancies were present in the post of UDA, but the DPC did not meet to consider the promotion of eligible employees. Constrained by the said fact the writ petitioners had submitted several representations to the respondents requesting a meeting of the DPC, to consider their promotion to the next higher post from the date they had become eligible, which had not found favour from the respondents.The perusal of the record revealed that the DPC was convened only in 2019 whereafter the petitioners came to be promoted with effect from 2019. Aggrieved of the same the petitioners sought retrospective promotions from 2014 when they had become eligible for this career advancement.Contesting the plea the respondents submitted that the delay in holding of the DPC was due to genuine and unavoidable reasons, and there was no intentional, deliberate or willful delay to suppress the rights of the petitioners.Dealing with the matter the court observed that promotion with retrospective effect cannot be granted unless it becomes necessary to do so. There have been cases wherein retrospective promotion had been granted and approved by the Courts, but the same was done on consideration of special circumstances surrounding that particular case, such as by operation of certain rules, the bench underscored.The bench took note of the fact that no averments have been made by the petitioners that the scheduled DPC or DPCs had been cancelled or that there was any mala fide intent in not convening the same which could have warranted an interference from the court in the matter.Deliberating further on the subject the court said that promotion to a higher post in the instant case is not a case of functional promotion, but involves a process of selection and recommendation by a duly constituted DPC. “A mere existence of a vacancy, therefore, will not create a vested right for an eligible employee to claim for appointment on promotion to the said post, especially when the same has to be finalized through a selection process”, the court explained.In order to fortify the stand the court placed reliance on Union of India & Anr. vs. Manpreet Singh Poonam & Ors. reported in (2022) wherein the Supreme Court observed,“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 are 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”.Unable to identify any special circumstances or rules present that vest the petitioners with any right to claim for promotion from a retrospective date, the court dismissed the petition.Case Title: Shri Andrew Shabong & Ors Vs State of Meghalaya & Ors.Citation: 2023 LiveLaw (Meg) 1Click Here To Read Order

Departmental Promotion Committee Not Convening Alone Not Special Circumstance To Confer Retrospective Promotions: Meghalaya High Court

Basit Amin Makhdoomi

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Departmental Promotion Committee Not Convening Alone Not Special Circumstance To Confer Retrospective Promotions: Meghalaya High Court

Basit Amin Makhdoomi

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