Promotion of Government Officers with Retrospective Effect

W.P. (C) Nos. 8102/2012, 20/2013, 99/2013 and 104/2013

The Delhi High Court on 12th April 2013 in above noted writ petitions clarified the stand in relation to promotion of individuals appointed in Government services. In these writ petitions, the common question that arose was whether retrospective promotion could be granted to officer whose right to be appointed as Additional Central Provident Fund Commissioner was adversely affected on account of being appointed on ad-hoc basis for the post of regional provident fund commissioner grade I.

The issue in the matter was that, to be promoted for the post of Additional Central Provident Fund Commissioner, the officer was required to have qualifying service in feeder cadre (Regional provident fund commissioner Grade I) and seniority was also an important factor for promotion to the said post. The respondents were appointed on ad-hoc basis in the years when the vacancy for the said feeder post had become due and were later appointed by regular appointment to the said feeder post permanently.

The respondents were of the opinion that their right to be promoted to Additional Central Provident Fund Commissioner was therefore adversely affected. The respondents had this grievance in view of regular appointment not being carried out by the Government department from the date when the vacancy had become due. The respondents had therefore sought the promotion with retrospective effect from the day they had been promoted to the said post on ad-hoc basis (before they had been finally confirmed to be promoted by regular appointment). The tribunal had granted retrospective promotion in favour of respondents.

The Delhi High court observing and relying on various Supreme Court judgments observed the following legal principles:

• Service Jurisprudence does not recognise retrospective promotion that is promotion from back date.
• That a decision to grant promotion from back date shall be valid in case there exists a rule that authorises the Executive to accord promotion from retrospective date.
• Promotion from retrospective date shall be granted in case a delay to a promotion is attributable to a mala fide act like deliberately delaying the holding of DPC (department promotion - for regular appointment), depriving the eligible candidates the right to be promoted and thereby causing prejudice. This shall be so because mala fide taints any exercise of power or any act done and stops the person wronged to be in placed in the position where he would have found himself but on account of mala-fide is not there.
• No Retrospective promotion shall be made in case, on account of administrative reasons DPC could not be held during that year or there is no taint or malice.

The Delhi High Court thus set aside the order of Tribunal below that had granted in favour of respondents awarding retrospective promotion to the respondents and also clarified that the setting aside of Tribunal order by it does not mean that the court has held that respondents are not entitled to seniority from the day they were promoted on ad-hoc basis or the court has held for the purpose of further promotion qualifying services would be determined from the day they were actually promoted.

The Court also took note of fact that the respondents were already receiving pay in accordance to pay scale and seniority within promoted class shall not be affected as promotion of every one was delayed. The Court also said in respect to the question of right of further promoted with respect to the service in the grade shall depend upon language of the service Rules as to whether it contemplates regular service or continuous service. The court also said that the issue of seniority between direct recruits and promoted class cannot be resolved by the judicial forum without impleading persons likely to be affected and shall be only in accordance to the language of service Rules.