Jharkhand High Court
Ajoy Shankar Malviya vs The Speaker Jharkhand Vidhan Sabha on 28 April, 2025
Author: Ananda Sen
Bench: Ananda Sen
2025:JHHC:12649
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.2812 of 2016
-----
Ajoy Shankar Malviya, S/o Late Hari Tiwari, R/o uarter No.E 276/2,
H.E.C. Dhurwa, P.O.- Dhurwa, P.S.- Jagannathpur, District- Ranchi
(Jharkhand)
... Petitioner(s).
Versus
1.The Speaker Jharkhand Vidhan Sabha, Ranchi
2.The Secretary, Jharkhand Vidhan Sabha, Ranchi
3.Additional Secretary Establishment, Jharkhand Vidhan Sabha, Ranchi
...... Respondent(s)
......
PRESENT : SRI ANANDA SEN, J.
------
For the Petitioner(s) : Mr. Mahesh Tewari, Advocate
Mr. Harsh Tewary, Advocate
Mr. Subham Kumar, Advocate
Mr. Roshan Kumar Singh, Advocate
For the Resp.-JVS : Mr. Anil Kumar, Advocate
(S.C., Vidhan Sabha)
Mr. Aunitesh Kumar Jha, AC to S.C.
Mr. Arpit Kumar, Advocate
Ms. Aparna Dubey, Advocate
..........
ORDER
C.A.V. on: 28.01.2025 Pronounced On: 28/ 04/2025 In this writ petition, the petitioner prays for Quashing office order in memo No. 2195 dated 4.6.12 whereby respondent no. 3 has confirmed the order of cancellation of promotion of petitioner dated 25.10. 2013. For a direction to the respondent to grant notional promotion to the petitioner to the post of Joint Secretary from 31.7.09. Further for a direction to make payment of consequential monetary benefits including arears from 31.7.09 to 25.10.2013.
2. The petitioner further prays for a direction to the respondent to grant promotion to the post of Addl. Secretary from 30.9.2014. Further for a direction to make payment of arrears from 30.9.14.
3. The petitioner was appointed on the post of Assistant on 5.11.1988 who subsequently promoted to the post of Section Officer on 02.09.1993. Further he was promoted to the post of Under Secretary on 06.08.2004 and subsequently to the post of Deputy Secretary on 26.08.2006. When the 1 2025:JHHC:12649 promotion of the petitioner to the post of Deputy Secretary was cancelled vide order dated 23.7.2010, he filled a writ petition being W.P.(S) No. 6160 of 2010 for quashing the cancellation of promotion of the petitioner from the post of Deputy Secretary in which vide order dated 1.1.11, this court has quashed the cancellation order dated 23.07.2010.
4. There after respondent No.4 passed order impugned by which the promotion of the petitioner to the post of Joint Secretary has been cancelled.
5. Learned counsel for the petitioner submitted that being the Senior most in service, at the relevant point of time he was entitled for promotion to the post of Joint Secretary from 31.7.09 on superannuation of Shri Moti Prasad Singh, further he was entitled for the post of Additional Secretary from 30.9.2014 on superannuation of Shri Rama Shankar Singh. For Redressal of grievance the petitioner has also filed representation dated 18.12.14, 07.01.16 and 20.4.16 but in vain.
6. On contrary, learned counsel for the respondents submitted that after the judgment passed in W.P(S) No.5131 of 2007, the notification dated 10.10.09 was issued and on and from the date of notification roaster clearance was made mandatory. However, the petitioner and 19 others were granted promotion to the post of Joint Secretary, vide notification dated 31.10.2009 with a condition that same should be affected by notification dated 10.10.2009. Thereafter, on account of not following the notification, the promotion granted to the petitioner was cancelled.
7. It is further argued that when W.P(S) No. 6160 of 2010 was disposed of, the court had taken the point of violation of Principal of natural Justice and quashed the order of cancellation of promotion with a liberty to the respondent to show cause the petitioner and pass order afresh. In compliance of the said order notice was issued which was replied by the petitioner and thereafter the order was passed.
8. From the fact of this case, I find that the notification dated 10.10.09 was published in Jharkhand Gazette in compliance of order passed by this court in W.P.(S) No.5131 of 2007. This notification specifies the point of 2 2025:JHHC:12649 roaster clearance with respect to promotion of subordinate staffs of Vidhan Sabha. The petitioner was promoted on 31.10.2009 with a specific condition that the promotion of the petitioner shall be affected by the notification dated 10.10.2009. There cannot be a promotion in violation of roster clearance. Admittedly, there was no roster clearance. The said promotion thus was in violation of the notification and also the order of the High Court, thus in my opinion the respondent have rightly cancelled the promotion.
9. Further from the argument advanced by the parties the point which arises is that petitioner is praying for retrospective promotion to the post of Joint Secretary and Additional Secretary. The law is well settled that retrospective promotion cannot be given to an employee. Nor can seniority be given with retrospective effect as that might adversely affect others.
10. The Hon'ble Supreme Court in the case of Government of West Bengal and Others vs Dr. Amal Satpathi and Others, reported in 2024 SCC OnLine SC 3512 at para 19 has held as under:-
19. It is a well settled principle that promotion becomes effective from the date it is granted, rather than from the date a vacancy arises or the post is created. While the Courts have recognized the right to be considered for promotion as not only a statutory right but also a fundamental right, there is no fundamental right to the promotion itself.
In this regard, we may gainfully refer to a recent decision of this Court in the case of Bihar State Electricity Board v. Dharamdeo Das, wherein it was observed as follows:
"18. It is no longer res integra that a promotion is effective from the date it is granted and not from the date when a vacancy occurs on the subject post or when the post itself is created. No doubt, a right to be considered for promotion has been treated by courts not just as a statutory right but as a fundamental right, at the same time, there is no fundamental right to promotion itself.........
11. Further, the Hon'ble Supreme Court has taken into consideration the case State of Bihar vs. Akhouri Sachindra Nath, reported in 1991 Supp (1) SCC 334 in which it was held that retrospective seniority cannot be given to an employee from a date when he was not even born in the cadre, nor can seniority be given with retrospective effect as that might adversely affect others.
32025:JHHC:12649
12. In view of the fact of this case and the judgment of Hon'ble Supreme court, I am not inclined to interfere with the order impugned. Accordingly, this writ petition stands dismissed.
(Ananda Sen, J.) R.S/Cp 03 NAFR 4