Thursday 22 May 2014

When promotion should not be given to Govt servant from retrospective effect

In a significant order, the Himachal Pradesh High Court has held that "If due to administrative reasons, Departmental Promotion Committees (DPCs) cannot be held in a year, the person cannot claim retrospective promotion in the absence of mala fide."
A Division Bench comprising Acting Chief Justice Mansoor Ahmad Mir and Justice Tarlok Singh Chauhan passed this order on petitions wherein the petitioners raised the question that whether despite there being vacancies and because of non-convening of DPCs within the time schedule, the claim of the petitioners can be defeated only for the reason that they had crossed 57 years of age when the placement order had actually been issued on November 20, 2013, and the panel for promotion to the post of Deputy Director was sent to the government on May 7, 2013 when the petitioners had not crossed 57 years of age.

However, the state contended before the court that the petitioners had completed more than 57 years of age on the date of determining the eligibility and hence they were found ineligible for being promoted or placed to the posts of Deputy Directors. It was further contended that the seniority of Principals from the Headmaster Cadre had been circulated on September, 26,2006 and all the incumbents who were mentioned in the said notification were either placed as Deputy Directors or retired and the panel had exhausted.
It was further contended that since the process of regularisation was found very lengthy, the department on November 13, 2013, finally considered placing the Principals from amongst Headmaster Cadre on the basis of seniority in Headmaster Cadre.
Accordingly, as per requirement of the rule, the eligibility was determined only of those Principals who had not completed the age of 57 years on the date of determining the eligibility to the post of Deputy Director.

While dismissing the petitions, the bench observed that "the normal rule of law is that nobody can be promoted from a retrospective effect except when there exist facts which necessitate so or there is a rule which permits so". It further observed that "we find that there is not even a single whisper, much less a ground taken by the petitioners attributing mala fide against the government authorities. Therefore, in the given facts and circumstances, in absence of mala fide attributed to the respondents, no retrospective promotions can be ordered."
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