Madhya Pradesh High Court
Ganesh Kumar Sharma vs The State Of Madhya Pradesh on 27 June, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
WRIT PETITION No. 694 of 2019
GANESH KUMAR SHARMA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
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Appearance:
Shri Alok Katare - Advocate for the petitioner.
Shri M.S. Jadon - Govt. Advocate for the respondents/State.
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Reserved on : 20/06/2025
Delivered on : 27/ 06/2025
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This petition having been heard and reserved for orders,
comiing on for pronouncement this day, the Hon'ble Shri Justice
Milind Ramesh Phadke pronounced/passed the following:
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ORDER
The instant petition under Article 226 of the Constitution of India is preferred against the order dated 24.09.2016, by which the petitioner has been denied promotion, though similar promotion has been accorded to his juniors i.e. respondents No.5 & 6.
2. Facts in nutshell, are that the petitioner was appointed as Constable in Special Armed Force vide order dated 29.06.1996. 2 During his service period, he applied for appointment on the post of Sub Inspector in the State of Uttar Pradesh and after clearing the preliminary examination was called for physical test and thereafter he appeared for main examination. For appearing in the main examination, which was going to be held on 06.01.2002, the petitioner applied for leave but the leave was verbally refused.
3. The petitioner appeared in the examination held on 06.01.2002 and thereafter fell ill and only after recovery he joined his services on 22.01.2002.
4. The petitioner was later on, served with the charge sheet, wherein two charges were leveled against him and a departmental enquiry in pursuance thereof was conducted based upon the charge sheet. In the enquiry the charges were held to be proved and on 17.05.2002 the petitioner was served with an order of punishment of removal from service, which was challenged by him in writ petition No.994/2004, which got dismissed by this Court vide order dated 21.06.2012 but when he further challenged it in writ appeal No.398/2012, the same was allowed vide order dated 08.02.2013 and the orders of removal from service dated 17.05.2002 and 3 affirmed by Appellate Authority vide order dated 06.09.2002 were set aside and the matter was remanded back to the disciplinary authority for passing appropriate orders on the quantum of punishment. The petitioner had further challenged the order of remand passed in writ appeal before the Apex Court in SLP but the SLP was dismissed vide order dated 03.07.2014 and the order of writ appellate Court was, therefore, affirmed.
5. In pursuance to the order passed in writ appeal No.398/2012, the disciplinary authority on 10.07.2014 passed an order of reduction of one annual increment for a period of one year without cumulative effect and the period for which the petitioner remained out of service was treated as "no work no pay" and ordered that the said period shall not be reckoned for the purpose of pay fixation, increments, pension services, promotion, krammonati, time scale etc.
6. Aggrieved by the aforesaid order, the petitioner preferred another writ petition No.7170/2014, which was allowed by this Court vide order dated 01.10.2015, whereby respondents were directed to grant the benefit to the petitioner as provided under 4 Fundamental Rules 54-A and in pursuance thereof the respondent No.4 passed an order dated 24.09.2016, whereby the petitioner was granted seniority from his date of appointment i.e. 29.11.1996, but the benefit of promotion prior to his juniors i.e. respondents No.5 and 6 was not given to him stating that at the time of consideration of the petitioner the pre cadre test was in vogue as per GOP No.2008 and as the petitioner remained out of service and pre cadre test had not been given by him, therefore, he cannot be given promotion prior to his juniors i.e. respondents No.5 & 6.
7. Since the order dated 01.10.2015 passed by this Court in writ petition No.7170/2014 was not complied with, therefore, a contempt petition No.1060/2016 was preferred by the petitioner, wherein in the light of compliance report the contempt petition was disposed of with a liberty to the petitioner to challenge the order Annexure P/1.
8. In the compliance report submitted in the contempt petition, a stand was taken by the department that no junior of the petitioner has been promoted over and above him but when the petitioner applied under the Right to Information Act for extracting the aforesaid information, it was informed that the present respondents 5 No.5 and 6 were promoted from Constable (GD) A-Cadre to Head Constable (GD) A-Cadre on 22.12.2008 and since the petitioner was reinstated with the benefit of seniority, he was also entitled to get promoted in the year 2008 itself to the post of Head Constable and subsequently on the post of ASI, but in the garb of GOP of 2012, the said benefit was denied by the respondents alleging that now since the promotion is based upon seniority-cum-suitability and as and when DPC will be conducted he would be given promotion, which is absolutely arbitrary, since once the petitioner was reinstated in service and the order of stoppage of one annual increment without cumulative effect would come to an end within one year after he was reinstated from the date of punishment, the committee should have considered the case of the petitioner for promotion at par with respondents No.5 and 6 and should have given a liberty to pass pre promotion test, but not providing the opportunity to appear in the examination had curtailed valuable right of the petitioner for promotion, as there was no consideration at all of the claim of the petitioner for promotion though he was eligible.
9. Earlier the promotion in SAF were being conducted by the GOP 49/93 dated 10.02.1993 and thereafter the GOP No.77(75)/97 6 dated 02.04.1997 was introduced and as per the said GOP, the petitioner became entitled for promotion, however since the petitioner was removed from service on 17.05.2002 and respondents No.5 and 6 were promoted in wake of GOP 128/2008, which provided for pre promotion test, which they had cleared, after reinstatement the petitioner also should have been given the liberty to complete the same and he also deserved to be promoted as Head Constable at par with his juniors, thus, denial of the promotion to the petitioner is violative of Article 14 and 16, therefore, the said promotion is required to be granted to the petitioner. For the forgoing reasons, the present petition has been filed.
10. Learned counsel for the petitioner apart from the averments made in the petition while placing reliance in the matter of P. Sakthi Vs. The Government of Tamil Nadu and Others reported in SLP (C) No.30700 of 2024 dated 02.05.2025 in alternate had argued that when the very termination of the petitioner from services was set aside by this Court and in pursuance thereof he was reinstated, then the petitioner was required to be considered for promotion from the date of his entitlement, but since the same has not been done, directions are required to be issued to the respondents to conduct 7 pre promotion test for the petitioner and in case he clears the said test, he may be promoted at par with respondents No.5 and 6.
11. On the other hand, learned counsel for the respondent/State submitted that as per GOP No.77(75)/97 dated 02.04.1997, promotion of Constable on selection by Departmental Cadre Examination and to appear in the examination, the candidates were required to have completed six years of service as on 31st of March of the year of Examination and as the petitioner had entered into service on 29.11.1996 and was removed by order dated 17.05.2002, it was evident that he had not rendered service of six years, hence was not eligible to appear in the examination and how he cannot be allowed to and without passing the examination, promotion on the post of Head Constable is not possible.
12. It was further argued that GOP 128/2008 had repealed all earlier GOPs and from 07.06.2008 it provided promotion for 60% posts by departmental examination by selection on the basis of seniority-cum-merit and held the candidates having completed five years service on 31st December to be eligible to appear in the examination, however, the said GOP was repealed with effect from 8 31.10.2012 with the formulation of GOP No.141/2012 which provided promotion from the post of Constable to Head Constable on the basis of seniority-cum-suitability, after completion of five years of service on 1st of January of the year of promotion and at the time when GOP No.128/2008 was in existence the petitioner was out of service and he was reinstated only w.e.f. 23.07.2014 when the GOP No.141/2012 was in existence, thus, the claim of the petitioner for promotion could only be considered in the light of GOP No.141/2012.
13. It was thus argued that prior to introduction of GOP No.141/2012, the petitioner was required to pass pre cadre test and until and unless the same was cleared petitioner was not eligible for promotion. However, now the criteria for promotion has been changed and it depends upon seniority-cum-suitability and as such on the basis of seniority the case of the petitioner for promotion will be considered as and when the occasion would arise.
14. Lastly, it has been argued that in terms of GOP 141/2012, no junior to the petitioner has been promoted from the post of Constable to Head Constable, thus, the contention of the petitioner 9 that respondents No.5 and 6, who were juniors have been promoted earlier to him in the year 2008 is of no consequences. Thus, it was submitted that the petition has no force and it be dismissed.
15. None for the respondents No.5 and 6.
16. Heard learned counsel for the parties and perused the record.
17. Admittedly, the petitioner who was a Constable appointed in the year 1996 was removed from service vide order dated 17.05.2014. The challenge to his termination vide writ petition No.994/2004 resulted in dismissal, which when challenged in the writ appeal No.398/2012 opened the gate of reinstatement of the petitioner and in pursuance thereof vide order dated 10.07.2014 the petitioner was reinstated and in place of termination minor punishment of reduction of one increment for the period of one year without cumulative effect was passed. Alongwith the said order the period for which the petitioner remained out of service was construed on the basis of "no work no pay" and was also ordered that said period would not be reckoned for pay fixation, increments, pension services, promotion, krammonati, time scale etc. The said part of the order was challenged by the petitioner in writ petition 10 No.717/2014, which was allowed vide order dated 01.10.2015 and directions were issued to the respondents to grant benefit to the petitioner as per Fundamental Rule 54-A and in compliance thereof vide order dated 24.09.2016 the petitioner was granted seniority from the date of his appointment i.e. 29.11.1996.
18. In the mids thereof, the petitioner being out of service due to his termination, a GOP No.128/2008 was introduced with effect from 07.06.2008, which provided for departmental examination for promotion by selection on the basis of seniority-cum-merits. In pursuance to the aforesaid GOP respondents No.5 and 6 appeared in the departmental examination (pre promotion test) and after clearing it, they were promoted. The said GOP was repealed with effect from 31.10.2012 by GOP No.141/2012, which created a new channel of promotion from the post of Constable to Head Constable on the basis of seniority-cum-suitability, thus, the entire criteria from seniority-cum-merit was changed to seniority-cum-suitability.
19. Thus, the contention of the petitioner that respondents No. 5 and 6, who are juniors to him were promoted earlier and the promotion at par with them was denied to the petitioner after his 11 reinstatement appears to be far fetched, as in the light of the GOP which was in existence at the time of reinstatement of the petitioner, it provided for a different criteria and it had repealed the earlier GOP on the basis of which the respondents No.5 and 6 were promoted.
20. It is also noteworthy that vide GOP No.77(75)/97 provided for promotion of the Constable on selection by department cadre examination and for that the basic requirement for a candidate was to complete six years of service as on 31st March in the year when examination was conducted. The petitioner who had entered into service on 29.11.1996, was removed by order dated 17.05.2002, thus, in the year 2008 he had not completed six years of service, which was basic requirement for appearing in the Department Cadre examination, thus, the prayer of the petitioner that the respondents be directed to conduct examination solely for him as provided under GOP No.128/2008 appears to be misconceived.
21. 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 12 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. In this context, it is profitable to cite a recent decision in Ajay Kumar Shukla Vs. Arvind Rai reported in (2022) 12 SCC 579, where citing earlier precedents in the matter of Director (Lift Irrigation Corporation Ltd.) Vs. Pravat Kiran Mohanty & others reported in (1991) 2 SCC 295 and Ajit Singh & others Vs. State of Punjab & others reported in (1999) 7 SCC 209, it has been observed thus:
41. This Court, time and again, has laid emphasis on right to be considered for promotion to be a fundamental right, as was held by K. Ramaswamy, J., in Director, Lift Irrigation Corpn. Ltd. v. Pravat Kiran Mohanty in para 4 of the report which is reproduced below:
'4....... There is no fundamental right to promotion, but an employee has only right to be considered for promotion, when it arises, in accordance with relevant rules. From this perspective in our view the conclusion of the High Court that the gradation list prepared by the corporation is in violation of the right of respondent-writ petitioner to equality enshrined under Article 14 read with Article 16 of the Constitution, and the respondent-writ petitioner was unjustly denied of the same is obviously unjustified.'
42. A Constitution Bench in Ajit Singh v. State of Punjab, laying emphasis on Article 14 and Article 16(1) of the Constitution of India held that if a person who satisfies the eligibility and the criteria for promotion but still is not 13 considered for promotion, then there will be clear violation of his/her's fundamental right. Jagannadha Rao, J. speaking for himself and Anand, C.J., Venkataswami, Pattanaik, Kurdukar, JJ., observed the same as follows in paras
22 and 27:
'Articles 14 and 16(1) : is right to be considered for promotion a fundamental right
22. Article 14 and Article 16(1) are closely connected. They deal with individual rights of the person. Article 14 demands that the 'State shall not deny to any person equality before the law or the equal protection of the laws'. Article 16(1) issues a positive command that:
'there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State'.
It has been held repeatedly by this Court that clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The said clause particularises the generality in Article 14 and identifies, in a constitutional sense "equality of opportunity" in matters of employment and appointment to any office under the State. The word "employment" being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16 (1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be "considered" for promotion. Equal opportunity here means the right to be "considered" for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be "considered" for promotion, which is his personal right. "Promotion" based on equal opportunity and seniority attached to such promotion are facets of fundamental right under Article 16(1).14
27. In our opinion, the above view expressed in Ashok Kumar Gupta [Ashok Kumar Gupta v. State of U.P. reported in (1997) 5 SCC 201 and followed in Jagdish Lal [Jagdish Lal v. State of Haryana reported in (1997) 6 SCC 538, and other cases, if it is intended to lay down that the right guaranteed to employees for being "considered" for promotion according to relevant rules of recruitment by promotion (i.e. whether on the basis of seniority or merit) is only a statutory right and not a fundamental right, we cannot accept the proposition.
We have already stated earlier that the right to equal opportunity in the matter of promotion in the sense of a right to be "considered" for promotion is indeed a fundamental right guaranteed under Article 16(1) and this has never been doubted in any other case before Ashok Kumar Gupta [Ashok Kumar Gupta v. State of U.P.], right from 1950.'
22. In State of Bihar v. Akhouri Sachindra Nath reported in 1991 Supp (1) SCC 334, it was held that retrospective seniority cannot be given to an employee from a date when he was not even borne in the cadre, nor can seniority be given with retrospective effect as that might adversely affect others. The same view was reiterated in Keshav Chandra Joshi v. Union of India reported in 1992 Supp (1) SCC 272, where it was held that when a quota is provided for, then the seniority of the employee would be reckoned from the date when the vacancy arises in the quota and not from any anterior date of promotion or subsequent date of confirmation. The said view was restated in Uttaranchal Forest Rangers' Assn. 15 (Direct Recruit) v. State of U.P. reported in (2006) 10 SCC 346, in the following words:
'37. We are also of the view that no retrospective promotion or seniority can be granted from a date when an employee has not even been borne in the cadre so as to adversely affect the direct recruits appointed validly in the meantime, as decided by this Court in Keshav Chandra Joshi v. Union of India held that when promotion is outside the quota, seniority would be reckoned from the date of the vacancy within the quota rendering the previous service fortuitous. The previous promotion would be regular only from the date of the vacancy within the quota and seniority shall be counted from that date and not from the date of his earlier promotion or subsequent confirmation. In order to do justice to the promotes, it would not be proper to do injustice to the direct recruits......
38. This Court has consistently held that no retrospective promotion can be granted nor can any seniority be given on retrospective basis from a date when an employee has not even been borne in the cadre particularly when this would adversely affect the direct recruits who have been appointed validity in the meantime."
23. The spirit behind elevating the right for being considered for promotion to a fundamental right is enshrined in the principle of "equality of opportunity" in relation to matters of employment and appointment to a position under the State. Once employed, the employees are entitled for being considered for promotion to the next higher post subject to their satisfying the eligibility criteria, as per the applicable rules. Failure to consider an employee for 16 promotion even after satisfying the eligibility criteria would violate his fundamental right. However, a clear distinction has been drawn between the stage of considering an employee for being promoted to taking the next step of recognizing the said right as a vested right for promotion. That is where the line has to be drawn. The Apex Court considering this aspect in the matter of Bihar State Electricity Board & another Vs. Dharamdeo Das in Civil Appeal No.6977/2015 dated 23.07.2024 had stated that a right to be considered for promotion being a facet of the right to equal opportunity in employment and appointment, would have to be treated as a fundamental right guaranteed under Article 14 and 16(1) of the Constitution of India but such a right cannot translate into a vested right of the employee for being necessarily promoted to the promotional post, unless the rules expressly provide for such a situation. Further, the Apex Court has held that the view that seniority can neither be reckoned from the date when a vacancy arises, nor can it be granted retrospectively unless the service rules specifically provide for such a situation, is fortified by the decision of Apex Court in another case in the matter of Union Of India And Ors vs K.K. Vadera And Ors reported in (1988) 2 SCC 201, which 17 has emphasised that in no uncertain terms the settled position in law that promotion to a post should only be granted from the date of the promotion and not from the date on which a vacancy may have arisen. Further, it reiterates that in Ganga Vishan Gujrati Vs. State of Rajasthan reported in (2019)16 SCC 28, and in another decision it has been reiterated the principle that retrospective seniority cannot be granted to an employee from the date when he/she has not even borne on the cadre.
24. Coming back to the facts of the instant case, there is no dispute that the petitioner was reinstated on 10.07.2014 at the time GOP No.141/2012 was in existence, which provided promotion on the basis of seniority-cum-suitability. The GOP No.128/2008, which provided for promotion on the basis of seniority-cum-merits and contained provisions of Department Cadre examination (pre promotion test) was already repealed.
25. Thus, according to this Court, the petitioner would be governed by the GOP No.2012 and would be entitled for promotion only as per GOP No.2012 and no benefit of GOP of 2008 can be said to have accrued in his favour as firstly said GOP was not in 18 existence and secondly he was not eligible to appear in any examination to be held as per GOP of 2008.
26. Accordingly, the present petition has no sum and substance and is dismissed.
27. The judgments cited by the counsel for the petitioner in the matter of P. Sakthi Vs. The Government of Tamil Nadu and Ors. (Supra) therein the different facts were involved, therefore, the same is not applicable to the present case.
(MILIND RAMESH PHADKE) JUDGE neetu NEETU Digitally signed by NEETU SHASHANK DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, SHASH 2.5.4.20=36b486bb0d381b950e435ec 09e066bc6b58cb947c1474b7dc349a1 cf27eaa2ce, postalCode=474001, st=Madhya Pradesh, serialNumber=E60A9BBFC39E0EE500E ANK AADE1E0B3B8565CB3A7DC9F5CD048 197DF0FF3149AE58, cn=NEETU SHASHANK Date: 2025.06.27 18:56:04 +05'30'