No public servant can consider promotion as his right: Supreme Court

Recently, the Supreme Court observed that government employees cannot seek promotion as a matter of law and that the Court’s interference in promotion policy should be limited only in case of violation of the principle of equality under Art. 16 of the Constitution.

On May 17, the Court upheld the recommendations made by the Gujarat High Court in 2023 for promotion of senior civil judges up to 65% of the quota for promotion of district judges on the basis of seniority principle. In ruling in this way, it was noted that since the Constitution does not specify a promotion criterion, government administration employees cannot expect promotion as an inherent right. The Court noted that promotion policy is the primary domain of the legislature or executive with limited scope for judicial review.

“81. However, in India, no public servant can claim promotion as his right as the Constitution does not specify criteria for filling promotional posts. While the Legislature or Executive Branch may decide how to fill promotional vacancies based on the nature of the employment and the functions the candidate will perform, courts cannot judge whether the promotion policy adopted is adequate to select “best candidates” unless it violates the principle equality to a limited extent. possibility arising from Art. 16 of the Constitution.”

In the present case, the petitioners prayed that the selection list dated March 10, 2023 issued by the Gujarat High Court for promotion of senior civil judges to the cadre of district judges (65% quota) should be declared violative of Art. 14 of the Constitution of India Act and Rule 5 of the Gujarat Judicial Service Rules, 2005. Rule 5 requires that 65% of the recruitment to the cadre of District Judges should be through promotion among senior civil judges on the basis of seniority and merit and passing a suitability test.

The Court also suggested that the Gujarat High Court may amend its Rules relating to the suitability test aspect to make it as detailed as appears under the Uttar Pradesh Higher Judicial Service Rules, 1975. The key recommendations included having Viva Voce as another component test for candidates, increasing the passing threshold for each existing component, considering the quality of candidates’ marks in the last two years instead of one year and including length of service in the test score while finalizing the merit list.

The colonial origins of seniority-based promotions and the lack of right to promotion under the Indian Constitution

The Supreme Court looked at the concept of promotion introduced since the British Raj to understand the intention behind the introduction of both seniority and merit as significant factors in deciding on promotions in public employment in particular.

It was observed that the East India Company (EIC) promoted its officials on the basis of seniority, i.e. seniority. The principle of promotion through seniority was then officially recognized in the Charter Act of 1793 and remained in force until 1861.

With the advent of the Indian Civil Service Act (ICS) in 1861, promotions were based on seniority as well as merit, integrity, competence and ability. This method became known as “seniority and merit” until India gained independence in 1947. The concept of competitive examinations in the modern civil services in India was introduced in 1854 following Lord Macaulay’s report to a select committee of the British Parliament.

This report aimed to replace the EIC “patronage system” with a permanent civil service based on competitive examinations. The idea was to prevent political influence or subjective bias in key recruitment and promotion processes, to eliminate dishonesty in the administration.

It said the competitive examinations “were intended to protect professional employees from undue political influence or personal favoritism in the recruitment, hiring, promotion or dismissal processes to ensure that personnel management was conducted without discrimination.”

In 1947, the First Pay Commission suggested using a combination of direct recruitment and promotion. He recommended seniority for positions requiring office experience and merit in senior positions. Later commissions in 1959 and 1969 also supported promotions based on merit, in addition to seniority. It was noted that the seniority principle was an expression of loyalty and limited favoritism, which should be rewarded with fair treatment.

“80s. The principle of seniority as a selection parameter for promotion was found to be derived from the belief that competence is linked to experience and limits the scope for discretion and favoritism. There is always an additional assumption that long-serving employees have demonstrated loyalty to the employing organization and are therefore entitled to mutual treatment.”

The Court further observed that in the context of the Indian Constitution, government employees had no right to claim promotion as a matter of law. Since the constitution does not specify any criteria for promotion, the process remains open to the discretion of the government or legislature and varies depending on the nature of the appointment or position for which promotion rules may be established. It was held that the Tribunal may intervene restrictively only when the promotional policy violates the principle of equality arising from Art. 16 of the Constitution.

81. However, in India, no public servant can claim promotion as his right because the Constitution does not specify the criteria for filling promotional posts. While the legislative or executive branch may decide how to fill vacancies for promotional positions depending on the nature of the employment and the functions to be performed by the candidate, courts cannot judge whether the adopted promotion policy is adequate to select the “best candidates”, unless it violates the principle equality to a limited extent. possibility arising from Art. 16 of the Constitution.”

Case Title: Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. | Writ Petition (Civil) No. 432 of 2023

Citation: 2024 LiveLaw (SC) 387

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