Sakunjay Vyas
Published on: Wednesday 9, 2022 at 11:25 IST
The Two Judge Bench of Justice Sanjay Kishan Kaul and Justice M.M. Sundresh of Supreme Court overturned the High Court bench order in separate but connected writ petitions, where-in it granted a benefit of pay-upgradation to one and retrospective promotion to another.
The Supreme Court recently ruled that when the rules are specific and clear, there is no need for interpretation which may lead to a case of judicial legislation.
The Two Judge Bench of Justice Sanjay Kishan Kaul and Justice M.M. Sundresh was hearing an appeal against the High Court of Judicature bench order in separate but connected writ petitions, where-in it granted a benefit of pay-upgradation to one by misconstruing a circular and retrospective promotion to another by making him entitle of the vacancy which had not accrued.
The Apex Court did not agree with the reasoning given by the High Court. The High Court in two separate yet connected writ petitions, while deciding the former related to a voluntarily retired employee misconstrued a circular and availed him the pay-upgradation rejected by the Central Administrative Tribunal; whereas, in the latter, it provided a retrospective promotion by making an employee eligible for a vacancy which did not exist, on mere inclusion of his name in the list.
“…The High Court also fell in error in taking note of the delay in considering the case of the respondents to the promotional post of JAG-I…The High Court has committed an error in relying upon a circular, which has got no application at all,…”
the Court said.
The Appellant argued that the High Court has erred in granting the relief in favor of the Respondent, that she was retired before the selection process and had asked for pay-upgradation for the vacancies that arose after a year of his retirement.
That there is no vested or accrued right over a promotional post, in the absence of any vacancies actually in existence and that promotion from JAG-II to JAG-I is governed by the 2003 Rules, without being inducted in the said cadre, he cannot seek for promotion with retrospective effect.
The present appeals are vehemently opposed by the learned counsel appearing on behalf of the respondent.
The apex court stated that taking a taking note of the delay was an error on the part of the High Court and that differential pay scale along with a process of selection qua suitability fixing eligibility criteria are the factors to determine whether a particular post is the same as the other or a promotional one.
The court further stated that when the rules are specific and clear, there is no need for interpretation which may lead to a case of judicial legislation. That the former employee cannot seek to agitate his past, as well as future rights and it was the right decision of DPC to not consider him since he was no longer in service at the relevant point of time.
“No officer has a vested right to a promotional post, which is restricted to that of consideration according to law…When the rules are specific and clear, there is no need for interpretation which may lead to a case of judicial legislation…”
the Court said.
As a result, the Apex Court has quashed and set aside the order of the High Court by stating that they are unable to give our imprimatur to the reasoning of the High Court.
Case: C.A. No. 517-518/2017 – D.No. 16565 / 2015
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