Research › Search › Judgment

Karnataka High Court · body

2019 DIGILAW 1416 (KAR)

Sunil Kumar v. State Of Karnataka

2019-06-25

S.G.PANDIT

body2019
JUDGMENT : S.G. Pandit, J. The Petitioner is before this Court under Article 226 of the Constitution of India praying for a Writ of Mandamus directing the respondents to sanction promotion in favour of the petitioner to the post of Associate Professor (in the Department of Forensic Medicine) with effect from June 2011 with all consequential benefits by considering the representations dated 07.07.2011, 01.08.2014 and 13.10.2014. 2. Brief facts leading to filing of the Writ Petition are as follows: The petitioner states that he was initially appointed as Tutor on Adhoc/contract basis in the respondent No.3 Institution for the period from 02.11.2006 to 29.06.2007. Subsequently, the petitioner rendered his service as Assistant Professor on adhoc/ contract basis from 01.07.2007 to 17.08.2008. The petitioner was appointed as Assistant Professor in pursuance to notification for recruitment dated 18.08.2008. It is the case of the petitioner that the petitioner became eligible for promotion to the next higher post of Associate Professor on completion of four years from 18.08.2008. The eligibility to become Associate Professor is that, one should have four years teaching experience as Assistant Professor and should have published two publications in his name. 3. It is the case of the petitioner that he became eligible for promotion to the post of Associate Professor. Hence, he made representation dated 07.07.2011 requesting to promote him to the post of Associate Professor with effect from June, 2011. It is his case that there was clear vacancy. Out of two sanctioned posts one post was vacant. He made several representations thereafter seeking promotion. Even though Departmental Promotion Committee (for short 'DPC') met on 02.09.2011, 24.09.2012 and 24.01.2014, his case for promotion from the cadre of Assistant Professor to the cadre of Associate Professor was not considered. Hence, he is before this Court seeking for a direction to the respondents to consider his case for promotion to the post of Associate Professor in the Department of Forensic Medicine. 4. Respondent No.3 Institution filed its statement of objections stating that one Dr. Aadamali Nadaf had approached this Court in W.P. No. 66735/2010 with regard to seniority between the petitioner and him. This Court allowed the Writ Petition on 03.12.2015 setting aside the seniority list dated 02.01.2010 and declared Dr. Aadamali Nadaf as senior to the petitioner. 5. 4. Respondent No.3 Institution filed its statement of objections stating that one Dr. Aadamali Nadaf had approached this Court in W.P. No. 66735/2010 with regard to seniority between the petitioner and him. This Court allowed the Writ Petition on 03.12.2015 setting aside the seniority list dated 02.01.2010 and declared Dr. Aadamali Nadaf as senior to the petitioner. 5. The learned counsel also submits that against the said order the petitioner filed W.A. No. 100040/2016 which is pending consideration before this Court. Thereafter, the respondent No.3 considered the case of the petitioner as well as Dr. Aadamali Nadaf for promotion to the post of Associate Professor. Respondent No.3 by order dated 28.05.2016 promoted the petitioner as Associate Professor from 01.06.2015 and Dr. Aadamali Nadaf as Associate Professor from 01.07.2014, he being senior as declared by this Court in W.P. No. 66735/2010 dated 03.12.2015. 6. The respondent No.3 has also filed a memo dated 20.06.2019 to dispose of the Writ Petition as the prayer of the petitioner would not survive for consideration in view of the promotion of petitioner as Associate Professor and further promotion as Professor by order dated 13.06.2019. 7. The learned counsel for the petitioner would submit that the Writ Petition has not become infructuous and still survives with regard to his prayer for retrospective promotion. It is the contention of the learned counsel for the petitioner that he is entitled for retrospective promotion from the date the vacancy arose in the cadre of Associate Professor. It is further contended that DPC was conducted on many occasions and his case was not considered, even though he became eligible in the year 2011 for promotion to the post of Associate Professor. Vacancy was also available as on that date. As such, he is entitled for retrospective promotion. 8. In view of the promotion of the petitioner as Associate Professor and further promotion as Professor by order dated 28.05.2016 and 13.06.2019 respectively, the only point which requires consideration is: Whether the petitioner is entitled for retrospective promotion as prayed by him? 9. No-One as a matter of right can seek promotion. An employee has a right for consideration of his case for promotion. In the case on hand during the pendency of the Writ Petition, the petitioner's case for promotion was considered and he was promoted as Associate Professor from 28.05.2016 and 13.06.2019 respectively. 9. No-One as a matter of right can seek promotion. An employee has a right for consideration of his case for promotion. In the case on hand during the pendency of the Writ Petition, the petitioner's case for promotion was considered and he was promoted as Associate Professor from 28.05.2016 and 13.06.2019 respectively. There is no dispute with regard to the promotion of the petitioner to the cadre of Associate Professor and Professor from the dates stated above. 10. Mere availability of vacancy would not give any right to an employee to seek promotion. Further, acquiring qualification or eligibility would also not give any right to an employee to seek promotion. The employee would get right to seek for consideration of his case for promotion only when his junior is promoted to the next higher cadre. In the instant case no junior of the petitioner is promoted earlier to his promotion. 11. One Dr. Aadamali Nadaf is promoted from 01.07.2014 earlier to the date of promotion of petitioner, since he is senior to petitioner in the cadre of Assistant Professor as declared by this Court in W.P. No. 66735/2010 which was disposed on 03.12.2015. The prayer of the petitioner for retrospective promotion has no basis. The petitioner has no right to seek for retrospective promotion, which would be accorded only under the circumstances where the case of an employee is overlooked for the reasons of pending departmental enquiry or where the petitioner's junior is promoted earlier to the promotion of senior. If that is the case the employee can seek retrospective promotion from the date of promotion of his junior or from the date of overlooking his promotion on the ground of pending departmental enquiry, subsequently if he is exonerated in the departmental enquiry. Retrospective promotion could be considered only under exceptional circumstances. 12. In the present case there is no such circumstance as no junior of petitioner was promoted earlier to the promotion of the petitioner. Mere existence of vacancy or eligibility would not give right to the petitioner to seek retrospective promotion. It is for the management to fill up the vacancy as and when necessity arises. Further, the petitioner has failed to point any rule or regulation under which he is claiming retrospective promotion or which rule or regulation entitles him to claim retrospective promotion. 13. It is for the management to fill up the vacancy as and when necessity arises. Further, the petitioner has failed to point any rule or regulation under which he is claiming retrospective promotion or which rule or regulation entitles him to claim retrospective promotion. 13. For the reasons stated above, I am of the view that the petitioner has not made out any ground for a direction to consider his case for retrospective promotion. Accordingly, the writ petition is rejected. In view of disposal of the writ petition, I.A. No. 1/2016 would not survive for consideration. Accordingly, it is also disposed of.