While a promotion is not a fundamental right, it is definitely a statutory and a fundamental right of an employee to be considered for a promotion if they fulfil the eligibility criteria. The Supreme Court said that by failing to consider an employee for promotion the employer goes against the employee’s fundamental right.
A bench of Justices Hima Kohli and Ahsanuddin Amanullah stated that employees have the right to be considered for upgradation provided they meet the conditions required for the same. They also clarified that promotion itself is not a fundamental right.
The case was related to the promotion issue of Dharamdeo Das, who was an under secretary at the Bihar Electricity Board. He had served for the specific time period that made him eligible for a promotion to the post of joint secretary in 1997, but he was promoted only six years later, which he thought was unfair.
According to the Board, the delay happened because the number of joint secretary posts had been reduced to half, from six to three. The Bench noted that the said employee was rightly given accelerated promotion only when an actual vacancy came up, and that too after following the standard process.
The Court also clarified that employees cannot demand or claim a promotion or upgradation merely because they had completed or served the minimum time period of service to qualify for the same. Also, a promotion is effective from the day it is granted and not from the date the post becomes vacant.
The Court observed that the very reason why the right to be considered for a promotion was made a fundamental right was to ensure that everyone enjoyed equal opportunity in terms of job and appointment under the government. A fundamental right is guaranteed under Articles 14 and 16(1) of the Constitution. However, the right does not necessarily mean a “vested right of the employee for being promoted” to a higher post, unless there are rules specifically stating the same.
