Employee’s right to be considered for promotion
Promotion, as understood under the service jurisprudence, is an advancement in rank, grade or both and no employee has a right to be promoted but has a right to be considered. In all service, whether Public or private there is invariably a hierarchy of posts comprising of higher posts and lower posts. No one has a right to be promoted but only a right to be considered for promotion. An employee of the state has no fundamental right to promotion but has a right to be considered, therefore. Promotion is a normal incidence of service. An employee otherwise eligible for the promotion if not considered for promotion, then there will be a clear infraction of his fundamental right under Article 16( 1) of the constitution of India.
Right to be Promoted –
The expression “right to be promoted” means that employee can as a matter of right claim that he should be promoted. This right has to be determined with reference to the relevant statutory provisions by which his service is governed. Service rules defining qualifications and suitability for promotion are conditions of service. The terms and conditions of service of a government employee or an employee of a statutory corporation are not exclusively governed by the law of contract because the relationship although originating in contract subsequently enters the domain of status.
Right to be considered is a fundamental right –
Promotion is not a fundamental right. Right to be considered for promotion, however, is a fundamental right. Such a right brings within its purview an effective, purposeful and meaningful consideration. Suitability or otherwise of the candidate’s concerned, however, must be left at the hands of the Departmental Promotion Committee, but the same has to be determined in terms of the rules applicable therefor.
The right to be considered for promotion is a fundamental right guaranteed to scheduled castes and scheduled tribes candidates when a reservation has been made for them.
Chances of promotion is not a condition of service –
Mere chances of promotion is not condition of service and a candidate appointed in accordance with the rules can still march over his erstwhile seniors in the feeder lower cadre. On having satisfactorily completed probation and declaration thereof, an employee was given seniority in the higher cadre from the date he starts discharging the duty of the post to which he was promoted. From the date, he ceased to be a member of the feeder cadre or grade from which he was promoted. The hierarchical promotions to various cadre or grades, though in the same service, one would steal a march over others, be they general or reserved candidate.No one has a right to promotion when there was no channel that too in a post reserved for the scheduled caste.
Violation of Rules regarding Promotion –
Where a police officer has a statutory right of promotion to the senior scale by seniority in service, and rule taking away such statutory right and providing that he would be liable to be demoted if an officer junior to him considered more suitable will be declared void in as such as the deprivation of person concerned of his right to higher rank without complying with Article 311(2) is bad in law.
A past record including penalty or penalties awarded to the employee can be taken into account while considering his case for promotion.