Chattisgarh High Court
N. K. Sur vs State Of Chhattisgarh on 20 June, 2025
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SMT
NIRMALA
RAO
2025:CGHC:26539
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPS No. 6712 of 2017
1 - N. K. Sur S/o Late N. G. Sur, Aged About 57 Years Working As Assistant
Mining Officer, At O/o The Collector, Mining Branch Korba, District Korba,
Chhattisgarh., Chhattisgarh.
... Petitioner
versus
1 - State Of Chhattisgarh Through Its Secretary, Department Of Mining
Resources, Mantralay, Mahanadi Bhawan, Naya Raipur, Chhattisgarh.,
Chhattisgarh
2 - The Director, Mines And Minerals, Block 4, 2nd Floor, Indrawati Bhawan,
Naya Raipur, Chhattisgarh., District : Raipur, Chhattisgarh
3 - Shri Sanjay Sharma, Mining Officer, O/o The Collector, Mining, District
Raipur, Chhattisgarh., District : Raipur, Chhattisgarh
4 - Shri Hemant Naidu, Mining Officer, Collector, Mining Branch, District
Dhamtari, Chhattisgarh., District : Dhamtari, Chhattisgarh
5 - Shri C. M. Sharma, Mining Officer, Collector Mining Branch, District
Kabirdham, Chhattisgarh., District : Kawardha (Kabirdham), Chhattisgarh
---- Respondents
For Petitioner : None.
For Respondent/ State : Shri Pramod Shrivastava, Dy.G.A.
Hon'ble Shri Justice Rakesh Mohan Pandey
Order on Board
20.06.2025
1. None appears on behalf of the petitioner even when the case is
taken up for hearing in the second round.
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2. The petitioner has filed this petition seeking the following reliefs:
"a. This Hon'ble Court may kindly be pleased to call for the
entire records pertaining to the matter.
b. This Hon'ble Court may kindly be pleased to direct the
respondents for considering the name of the petitioner for
grant of promotion on the post of Mining Officer.
c. This Hon'ble Court may kindly be pleased to direct the
Respondents to open the sealed cover envelop of the
petitioner and grant promotion from the year, 2015 when his
juniors were promoted with all consequential benefits of
services etc.
d. Any other relief as the Hon'ble Court may be deemed fit
and proper.
e. May kindly be pleased to allow the cost of petition."
3. The petitioner has claimed promotion from the post of Assistant
Mining Officer to Mining Officer. Admittedly, the age of the
petitioner was 57 years in the year 2017 and has since retired
from service.
4. In the matter of Government of West Bengal & Ors. vs. Dr. Amal
Satpathi & Ors., reported in 2024 (14) SCALE 294, the Hon'ble
Supreme Court has held, in paragraphs 15 & 19, as under:
"15. The primary question that arises for our consideration
in the present appeal is whether respondent No.1, who was
recommended for the promotion before his retirement but
did not receive actual promotion to the higher post due to
administrative delays, is entitled to notional financial benefits
of the promotional post after his retirement?
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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 and Others v. Dharamdeo Das, 2024 SCC
Online SC 1768, 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, (2022) 12
SCC 579 where, citing earlier precedents in Director, Lift
Irrigation Corporation Ltd. v. Pravat Kiran Mohanty,
(1991) 2 SCC 295 and Ajit Singh v. State of Punjab,
(1999) 7 scc 209, 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
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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 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
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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).
***
27. In our opinion, the above view expressed in
Ashok Kumar Gupta [Ashok Kumar Gupta v. State of
U.P., (1997) 5 SCC 201, and followed in Jagdish Lal
[Jagdish Lal v. State of Haryana, (1997) 6 SCC 538,
and other cases, if it is intended to lay down that the
right guaranteed to employees for being
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“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.’
“20. In State of Bihar v. Akhouri Sachindra Nath,
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 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. (Direct Recruit) v. State of U.P,
(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
7cadre 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.” (emphasis supplied)”
5. Taking into consideration the fact that no notional benefits can be
extended where promotion is claimed after retirement, no case is
made out for interference. Thus, the petition fails and is hereby
dismissed.
Sd/-
(Rakesh Mohan Pandey)
Judge
Nimmi