Patna High Court

The Union Of India vs Vishwa Mohan Kumar (In Person) on 15 October, 2025

Author:
Sudhir Singh

Bench:
Sudhir Singh
,
Rajesh Kumar Verma

IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.12586 of 2024
======================================================
1. The Union of India through the Secretary, Ministry of Information and
Broadcasting, Shastri Bhawan, New Delhi - 110001.
2. Director General, All India Radio, Akashvani Bhawan, Sansad Marg, New
Delhi-110001.
3. CEO, Prasar Bharti, Prasar Bharti Secretariat, Tower C, Mandi House,
Copernicus Marg, New Delhi - 110001.
4. Chief Engineer, Civil Construction Wing, All India Radio, 6th Floor,
Soochna Bhawan, CGO Complex, Lodi Road, New Delhi-110003.
5. UPSC, through Secretary, Union Public Service Commission, Dholpur
House, Shahjahan Road, New Delhi - 110069

... ... Petitioner/s
Versus
Vishwa Mohan Kumar (In person) S/o Madan Mohan Chaudhary, R/o D-1,
Sumitra Villa Apartment, Magistrate Colony patna, P.S. Rajeev Nagar, Dist. -
Patna.

... ... Respondent/s
======================================================
Appearance :
For the Petitioners : Dr. K.N. Singh, ASG
Mr. Ram Tujabh Singh, CGC
Mr. Radhika Raman, Advocate
For the Respondent : Mr. Vishwa Mohan Kumar (In person)
======================================================
CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH
and
HONOURABLE MR. JUSTICE RAJESH KUMAR VERMA
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJESH KUMAR VERMA)

Date : 15-10-2025

Heard Dr. K.N. Singh, learned Additional Solicitor

General of India assisted by Mr. Ram Tujabh Singh, learned

counsel for the petitioners and Mr. Vishwa Mohan Kumar (In

person) for the sole respondent.

2. The present writ petition has been filed for

challenging the order dated 04.01.2024 passed in OA No.
Patna High Court CWJC No.12586 of 2024 dt. 15-10-2025
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050/00505 of 2019 by which the learned Central Administrative

Tribunal has been directed to the respondent's promotion to the

post of Executive Engineer should be regularized w.e.f. 30.11.2010

the date on which he was given the current duty charge of that post

as he held that post continuously till regular promotion. Apart from

the aforesaid, the learned Central Administrative Tribunal also

directed the petitioners to issue order of promotion to the post of

Executive Engineer w.e.f. 30.11.2010 with all consequential

benefits within three months from the date of this order.

3. Learned counsel for the petitioners submits that the

respondent herein was appointed as Assistant Engineer in the Civil

Construction Wing of All India Radio on 19.12.1990 and was

granted financial up-gradation to Grade Pay of Rs. 6600/- w.e.f.

18.12.2002
vide order dated 27.04.2005. Respondent was given

current duty charge of the post of Executive Engineer w.e.f.

30.11.2010. The grade pay for the post of Executive Engineer was

Rs. 6600/-, so there was no financial enhancement in the pay scale

for the current duty charge. The respondent was conferred second

MACP with Grade Pay of Rs. 7600/- vide order dated 18.12.2020.

4. The respondent was promoted after regular

Departmental Proceeding Committee (DPC) to the post of

Executive Engineer vide order dated 25.02.2020.
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5. Learned counsel for the petitioners submits that the

respondent's case was before Central Administrative Tribunal

(hereinafter referred as "CAT") that respondent was eligible for

promotion to the post of Executive Engineer after completing eight

(08) years regular service on the post of Assistant Engineer. For

the promotion to the post of Superintending Engineer, the

eligibility of five (05) years on the post of Executive Engineer.

The respondent pleaded before the learned CAT that he was

granted only one substantive promotion in the last 30 years of his

service. Learned counsel for the petitioners submits that from

perusal of letter dated 30.11.2010 by which the respondent was

officiating to the post of Executive Engineer (Current Duty

Charge). The said appointment letter clearly indicates that such

appointment will not entitle for any monetary benefit or claim to

seniority. The private respondent was ultimately promoted to the

post of Executive Engineer by order dated 25.02.2020 after the

recommendation of DPC. The delay in process by the DPC for the

appointment of Executive Engineer was due to a SLP No. 35912-

35913 of 2010 was pending before the Hon'ble Apex Court with

respect to seniority matter and the Hon'ble Apex Court had

granted an interim order of status quo by order dated 17.01.2011.

The said status quo was vacated by the Hon'ble Apex Court by
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order dated 19.08.2015. Thereafter, the matter was kept pending

in the Hon'ble Apex Court and ultimately the same was disposed

of by order dated 18.01.2017. After disposal of the aforesaid SLP,

the seniority list was prepared by the authority concerned.

Ultimately, the said seniority list was also subject to challenge

before the Hon'ble Apex Court in M.A. No. 2220-2221 of 2018

and the same was finally disposed of vide order dated 17.02.2020

thereafter the respondent has been given to the promotion vide

order dated 25.02.2020. Learned counsel for the petitioners

submits that from the aforesaid, it transpired that due to multiple

litigation, the DPC could not take place for the period of last 10

years. Learned Additional Solicitor General of India brought to our

notice Office Memorandum dated 10th April, 1989 where the

Ministry of Personnel, Public Grievances & Pensions Department

of Personnel and Training had formulated a guidelines which

would govern the promotion/appointment of such persons to the

post in question. He has relied upon Para 6.4.4 and Para 17.10 and

Para 17.11 which is reproduced hereinbelow :-

"6.4.4 - While promotions will be made in the order of

the consolidated select list, such promotions will have

only prospective effect even in cases where the

vacancies relate to earlier year(s).

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17.10- The general principle is that promotion of

officers included in the panel would be regular from the

date of validity of the panel or the date of their actual

promotion whichever is later.

17.11- In cases where the recommendations for

promotion are made by the DPC presided over by a

Member of the UPSC and such recommendations do not

require to be approved by the Commission, the date of

Commission's letter forwarding fair copes of the minutes

duly signed by the Chairman of the DPC or the date of

the actual promotion of the officers, whichever is later,

should be reckoned as the date of regular promotion of

the officer. In cases where the Commission's approval is

also required the date of UPSC's letter communicating

its approval or the date of actual promotion of the

officer whichever is later will be the relevant date. In all

other cases the date on which promotion will be effective

will be the date on which the officer was actually

promoted or the date of the meeting of the DPC

whichever is later. Where the meeting of the DPC

extends over more than one day the last date on which

the DPC extends over more than one day the last date
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on which the DPC met shall be recorded as the date of

meeting of the DPC.

Appointment to posts falling within the purview of ACC

can, however, be treated as regular only from the date of

approval of ACC or actual promotion whichever later

except in particular cases where the ACC approves

appointments from some other date".

6. Learned counsel for the petitioners submits that from

perusal of the aforesaid guidelines, it is made clear that no such

appointment/promotion could have been made effect with a

retrospective date, only a prospective promotion/appointment

would have been made. Learned counsel for the petitioners further

relied upon a judgment of 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, Paragraph

Nos. 19 and 20 of
the said judgment
which is reproduced

hereinbelow:

"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
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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.
In this context, we may profitably cite a
recent decision in
Ajay Kumar Shukla v. Arvind
Rai
where, citing earlier precedents in
Director,
Lift Irrigation Corporation Ltd. v. Pravat Kiran
Mohanty
and
Ajit Singh v. State of Punjab
, a
three-Judge Bench 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
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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 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
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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).

* * *

27.
In our opinion, the above view expressed in

Ashok Kumar Gupta [Ashok Kumar Gupta v. State
of U.P.
, and followed in
Jagdish Lal [Jagdish Lal
v. State of Haryana
, 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
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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.'
"20.

In
State of Bihar v. Akhouri Sachindra Nath
, 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
,
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. (Direct Recruit) v. State of U.P.
, 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
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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."

(emphasis supplied)

20. In the instant case, it is evident that while respondent
No. 1 was recommended for promotion before his
retirement, he could not assume the duties of the Chief
Scientific Officer. Rule 54(1)(a) of the West Bengal
Service Rules, clearly stipulates that an employee must
assume the responsibilities of a higher post to draw the
corresponding pay, thus, preventing posthumous or
retrospective promotions in the absence of an enabling
provision".

7. Learned counsel for the petitioners submits that it is

not in dispute that the respondent was given the officiating charge

(Current Duty Charge) of Executive Engineer, the said
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appointment letter itself indicates that the respondent could not

have made claim for any monetary benefit or seniority on the basis

of the said appointment. The said appointment letter was issued in

the year 2010 in favour of respondent and the respondent was

never challenged the aforesaid letter and now he has not claimed

the promotion on retrospective effect.

8. Mr. Vishwa Mohan Kumar, who has appeared in

person submits that it is not in dispute that the respondent was not

eligible for the promotion to the post in question. The petitioners

have denied the promotion to the respondent solely on the ground

that the status quo was maintained by the Hon'ble Apex Court on

the sole ground that the petitioners could not hold DPC. Mr.

Vishwa Mohan Kumar further submits that after the status quo

order dated 17.01.2011 the petitioners conducted DPC and issued

Promotion Order No. 7/2011-BA (E) dated 24.10.2011 and issued

posting order to certain officials. Further submits that the status

quo was modified by the Hon'ble Apex Court vide order dated

19.08.2015 where the Hon'ble Apex Court held that "We modify

the interim order and permit the Union of India to make the

promotions to the post of Executive Engineer. However, we make

it clear that the promotions will be subject to the outcome of this

appeal". Apart from the aforesaid, the petitioners could have
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conducted the DPC immediately after the modification of status

quo order by the Hon'ble Apex Court on 19.08.2015.
The

indefinite 10 years long period of Current Duty Charge ratified in

the regular promotion on 25.02.2020. Further submits that

respondent was neither a party in the said SLP nor his eligibility or

his position in Direct Recruit slot was to get affected. The

appointment was made on Current Duty Charge according to Rule

of FR 49, Current Duty Charge is a stop gap arrangement for a

very short duration only. Mr. Vishwa Mohan Mumar also relied

upon a decision in the case of
K Madhavan and Another Vs. Union

of India
, reported in (1987) 4 SCC 566 held that with a view to

ensure that miscarriage of justice does not occur, promotion should

be deemed to have taken effect retrospectively from the

commencement of the so called ad hoc stop gap and current duty

charge, provided the incumbent concerned fulfilled the essential

criteria for consideration for promotion on the initial date.

9. We have heard both the parties at length and this

Court has come to the conclusion that due to statue quo granted by

the Hon'ble Apect Court in SLP No. 35912-35913 of 2010 the

petitioners had not held the DPC for the promotion of the

respondents in question and apart from the aforesaid in the recent

judgment as mentioned aforesaid by the petitioners in the case of
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Government of West Bengal and Others
(supra) which suggests

that the promotion only becomes effective upon the assumption of

duties on the promotional post and not on the date of occurrence of

the vacancy or the date of recommendation.

10. As a result of the above discussion, the

judgment/order dated 04.01.2024 passed in O.A. No.

050/00505/2019 is hereby set aside.

11. The writ petition is allowed. No order as to costs.

12. Pending application (s), if any, shall stand disposed

of.

(Sudhir Singh, J)

I agree.

Ibrar//- ( Rajesh Kumar Verma, J)
AFR/NAFR NAFR
CAV DATE 04.09.2025
Uploading Date 15.10.2025
Transmission Date N.A.