1. The respondents in O.A.(EKM)No.1448 of 2022 before the Kerala Administrative Tribunal, Additional Bench at Ernakulam (the ‘Tribunal’ for short) filed this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, challenging Ext.P3 order dated 31.10.2025 passed by the Tribunal in that original application.

2. The respondent entered service on 04.07.1985 as Junior Agriculture Officer (Gr. II). Previously, the respondent had worked on a provisional basis as Junior Agriculture Officer (Gr.II) from 23.02.1984 to 03.05.1985, with breaks. After serving in different posts, on 31.05.2018, the respondent retired from his position as Additional Director, Agriculture. The respondent states that the vacancy in the post of Additional Director arose on 08.07.2017, for which he was entitled to be promoted. The respondent, by Annexures A3 and A4 letters dated 29.01.2018 and 26.02.2018 respectively, sent to the 1st petitioner, intimated his concern about the delay in granting promotion. Later, the 1st petitioner published Annexure A5 select list dated 10.04.2018 of the eligible officers, including the respondent, prepared by the Departmental Promotion Committee (Higher) (‘DPC’ for short). By Annexure A6 order dated 19.04.2018 of the 1st petitioner, the respondent was promoted from the position of Principal Agricultural Officer, Thrissur (Joint Director of Agriculture) to Additional Director of Agriculture in the Kerala State Seed Development Authority. Though the respondent sent letters to the 1st petitioner, seeking retrospective promotion, through Annexure A13 reply, the 1st petitioner informed him that his claim to avail promotion retrospectively from the date on which the actual existence of vacancy occurred is not a right. It is also stated that the respondent can avail salary and other benefits from the date on which he actually took charge of the promoted post. With these pleadings, the respondent-applicant approached the Tribunal by filing the original application, invoking the jurisdiction of the Tribunal under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs;

                  “(i) To set aside Annexure A13 as unjust, illegal and arbitrary;

                  (ii) To declare that the applicant is entitled to have his seniority in the post of Additional Director fixed w.e.f. 08.07.2017 and is consequently entitled to revised pension by reckoning his seniority in the post of Additional Director w.e.f. 08.07.2017;

                  (iii) To direct the respondents that the applicant is entitled to have his seniority in the post of Additional Director fixed

w.e.f. 08.07.2017 and is consequently entitled to revised pension by reckoning his seniority in the post of Additional Director w.e.f. 08.07.2017.”

3. In the original application, on behalf of the 1st petitioner, Ext.P2 reply statement dated 13.01.2023 was filed, opposing the reliefs sought for. Paragraphs 3 to 6 of that reply statement read thus;

                  “3. It is submitted that the post of Additional Director is a selection post-in the cadre. Hence, Promotion cannot be given from the date of the occurrence of a vacancy without preparing the select list by the DPC from among the members eligible for promotion to the cadre of Additional Director in accordance with the provisions contained in Rule 28(b)(i) of KS & SSR. It is submitted that due to several administrative reasons, Government could not conduct DPC in 2017. Thereafter, the DPC(H), which was held on 27.03.2018. prepared a select list for Promotion to the post of Additional Director in accordance with the provisions contained in Rule 28(b)(i) of KS & SSR and considered the name of the applicant. It is submitted that the select list was published on 10.04.2018 and the applicant was promoted to the post of Additional Director, on 19.04.2018 vide Annexure A6 order dated 19.04.2018.

                  4. It is submitted that the promotion cannot be given from the date of occurrence of the vacancy. It could only be granted after the select list has been published and from the actual date of taking charge in the promoted post. It is submitted that mere existence of vacancy will not create a right in favour of an employee for retrospective promotion when the vacancies in the promotional post are specifically prescribed under the rules, which also mandate the clearance through a selection process. There is no deliberate denial of granting of promotion and Government could not conduct DPC during 2017 due to administrative reasons. As it has been held by various judicial precedence in Union of India v. K.K.Vadhera [1989 sup..(2) SCC 625]. State of Uttaranchal and another v. Dinesh Kumar Sharma [2007(1) SCC 683], K. V. Subba Rao v. Government of Andhra Pradesh [1988 (2) SCC 201]. Dwarka Prasad and other v. Union of India and others [AIR 2003 SC 2971] that mere existence of a vacancy will not create a right in favour of an employee for retrospective promotion when the vacancies in the promotional post are specifically prescribed under the rules, which also mandate the clearance through a selection process.

                  5. It is submitted that notional promotion is usually given as a remedial measure in cases where a junior is promoted over a senior due to a wrong application of the rules and procedures. In such cases, the procedure adopted in the Government service is to give the promotional benefits notionally to the senior without arrears of pay, from the date of promotion to the junior. If it is later found that a junior has been promoted over a senior due to the wrong application of rules and procedures, the Government, as a remedial measure has adopted a procedure of notional promotion benefits to the senior with effect from the date of promotion to the junior. No such supersession is happened in this case. Moreover, none of his junior-officers superseded the applicant and was not promoted before him. If the junior officer in the seniority list is promoted to the post of Additional Director before the applicant was promoted, then only the applicant has to challenge seniority and notional promotion.

                  6. As per the provisions contained in Rule 23(a) of Part I KSR, an officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date he assumes the duties of that post, and shall only be eligible to receive salary and other benefits related to the said post from that date. It is submitted that the Hon'ble Apex Court in Ganga Vishan Gujrati and Ors. v. State of Rajasthan [(2019) 16 SCC 28] held that "A consistent Line of precedent of this Court follows the principle that retrospective seniority cannot be granted to an employee from a date when the employer was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade. This principle emerges from the decision of the Constitution Bench of this Court in Direct Recruit Class II Engineer Officers Assn. v. State of Maharashtra [(1990) 2 SCC 715]. The principle was reiterated by this Court in State of Bihar v. Akhouri Sachindra Nath [1991 Supp (1) SCC 334] and State of Uttaranchal v. Dinesh Kumar Sharma, [(2007) 1 SCC 683]. Further In Pawan Pratap Singh v. Reevan Singh [(2011) 3 SCC 267], the Hon'ble (Apex Court held that "The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant Service Rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime. This view has been reaffirmed by a Bench of three Judges of the Apex Court in P. Sudhakar Rao v. U. Gonda Rao [(2013) 8 SCC 693]". In the light of the above facts and circumstances. there is absolutely no illegality or irregularity in the issuance of Annexure A13 order and the applicant is not entitled to have seniority in the post of Additional Director fixed with effect from 08.07.2017”.

4. After hearing both sides and on appreciation of materials on record, the Tribunal, by the impugned Ext.P3 order, disposed of the original application by setting aside the Annexure A13 order under challenge and issuing consequential directions to the petitioners. Paragraphs 6 to 12 and the last paragraph of that order read thus;

                  “6. The respondents have not denied the contention of the applicant that a vacancy in the post of Additional Director arose on 08.07.2017 and it was remaining unfilled. The only reason for not convening DPC in time is administrative delay. Rule 28(b)(i)(4) of Part II KS & SSR prescribes the procedure to be followed for convening DPC as follows:

                  “(4) The Committee shall meet periodically to prepare select lists, in the order of merit, of the Officers selected for appointment. The Committee may also hold ad hoc meetings for the purpose of making selections to particular vacancies whenever occasion arises. The criterion for assessment of merit shall be the confidential reports of the officers. The confidential reports of the officers for at least the preceding three years shall be made available to the Committee for this purpose. Where remediable adverse remarks recorded in the confidential report of a Government servant are not communicated to the officer concerned, such remarks shall be ignored by the Departmental Promotion Committee while considering his case or promotion. The following procedure shall be adopted by the Departmental Promotion Committee for the preparation of select lists:--

                  (a) Select lists shall be prepared during a calendar year for the vacancies estimated to arise in the next calendar year;

                  (b) During the first six months of the year action shall be taken to make all the Confidential Reports up-to-date, adverse remarks communicated, and orders for expunging such remarks issued wherever necessary. Simultaneously seniority lists shall also be made up-to-date and probation of officers in the field of choice declared. Confidential Reports and seniority lists shall be made up-to-date before 30th June;

                  (c)[xxx]

                  (d) During September/October the Departmental Promotion Committees will be convened and select lists prepared which will be notified before 30% November and in any case not later than December 31. If any officer becomes qualified after the preparation of the select list, but, before the occurrence of the vacancy, the Departmental Promotion Committee shall meet subsequently and his name shall be considered for inclusion in the select list;”

                  7. It was mandatory for the respondents to adhere to the aforesaid provisions and to convene the DPC in the year 2016, for drawing up the select list for the vacancies of the year 2017 at least by December 2016. Respondents have stated that a proposal for convening DPC in July 2017, was submitted by the 2nd respondent, as seen from Annexure A11. Even thereafter no steps were taken. Therefore, under the guise of administrative delay, the respondents cannot be permitted to act in violation of the statutory mandates in clause (a) to (d) of Rule 28 (b)(i)(4) of Part II KS&SSR. The applicant happened to be denied promotion only because of the lethargy on the part of the respondents in convening the DPC (Higher). The respondents do not have a case that the authorities concerned had taken any conscious decision not to fill up the vacancy in the post. Therefore, there is no justification for the respondents to deny him the benefit of promotion from the date on which the vacancy arose.

                  8. Though a Government servant does not have any fundamental right to promotion, he has got every right to be considered for promotion in accordance with the Rules. In the event of adherence to the rules, in time, applicant would have been granted promotion with effect from the date of occurrence of the vacancy.

                  9 . The learned counsel for the applicant has relied on the judgments of the Hon'ble High Court in State of Kerala v. Dr. P.K. Sundara Raj [O.P. (KAT) No.427 of 2019] and State of Kerala v. Jayakrishnaraj [OP (KAT) No 320 of 2024], in support of the claim for retrospective promotion. In the judgment in Dr. P.K. Sundarraj’s Case, (supra) the Hon‘ble Division Bench, relying on the judgment of the Hon’ble Supreme Court in Ramesh Kumar v. Union of India and Others [(2015) 14 SCC 335] held that the denial of retrospective promotion with consequential benefits was unsustainable. Despite the provision contained in Rule 23(a) of Part I KSR that an officer shall begin to draw the pay and allowances attached to the post only with effect from the date he assumes the duties of that post, the Division Bench found that the delay in effecting promotion being not attributable to the applicant in any manner and on the contrary, being attributable to the administrative delay, he cannot be denied the benefits legitimately due to him.

                  10. In the judgment in Jayakrishnaraj’s case (OP (KAT) 320 of 2024) also, Ramesh Kumar’s case (supra) was followed and was held that if the Government or any other department is lethargic in considering the legitimate claim of a Government servant, that must face adverse consequences carrying restitution benefits and the monetary benefit was a legitimate claim that was denied arbitrarily on account of bureaucratic delay. In both those cases the applicants were teaching faculties.

                  11. In the present case the respondents have admitted that the DPC was not convened in the year 2017 only because of administrative delay. Therefore, it cannot be a reason for denying the benefit of promotion to the applicant from the date on which it was due. The delay in convening the DPC is not attributable to the applicant. The contention that applicant cannot be granted even notional promotion since none of his juniors were not promoted in preference to him is unsustainable. The applicant is entitled to be granted the benefit of promotion from 08.07.2017 and his pay shall be fixed with effect from that date, in the post of Deputy Director. As pointed out by the learned Government Pleader, the applicant is seeking for direction to disburse the re-fixed pensionary benefits, based on promotion from 08.07.2017.

                  12. Therefore, Annexure A13 order is set aside. The respondents shall see that applicant’s pay is fixed in the cadre of Additional Director with effect from 08.07.2017 and his pension is re-fixed on the basis of the said pay arrived at. The pensionary benefits including arrears of pension shall be paid to the applicant within a period of three months from the date of receipt of a copy of this order.

                  The Original Application is disposed of accordingly.”

5. Being aggrieved, the petitioners are now before this Court with this original petition.

6. Heard the learned Government Pleader for the petitioners and the learned counsel for the respondent.

7. The learned Government Pleader would argue that promotion cannot be claimed as a right by a Government servant, and it is the prerogative of the State to decide as to whether a post shall be kept vacant or not. Only for the reason that DPC did not convene as mandated under Rule 28(b)(i)(4) of the Kerala State and Subordinate Services Rules, 1958 (‘KS & SSR’ for short), it will not confer any right to the respondent to seek retrospective promotion, especially when the delay in holding the DPC was due to bona fide administrative reasons. The Tribunal failed to consider the fact that the respondent did not work in a higher post during the period from 08.07.2017 to 19.04.2018, and therefore, the direction given by the Tribunal causes an unjustified financial burden on the public exchequer. The learned Government Pleader relied on the judgment of the Apex Court in the Government of West Bengal v. Dr.Amal Satpathi [(2024) SCC OnLine SC 3512], to argue that there is no fundamental right to promotion and the facts of each case have to be considered separately. The learned Government Pleader further pointed out that in a similar case as that of the present one, wherein this Court has granted the relief in favour of the petitioners therein was interfered with by the Apex Court as per the order dated 19.08.2025 in Civil Appeal No.10898 of 2025.

8. On the other hand, the learned counsel for the respondent would argue that the promotion was denied to the respondent solely due to the administrative lethargy, even though the respondent has repeatedly reminded the 1st petitioner, by way of representations, to grant the promotion entitled to the respondent. In support of her arguments, the learned counsel relied on the judgments of the Apex Court in Ramesh Kumar v. Union of India [(2015) 14 SCC 335] and State of Kerala v. Dr. P.K Sundara Raj [(2019) SCC Online Ker 18298]. The learned counsel further argued that this is a case wherein the vacancy was available to accommodate the respondent in the promoted post, and the promotion was denied to the respondent on the entitled date, due to administrative lethargy of the petitioners.

9. Article 227 of the Constitution of India deals with the power of superintendence over all courts by the High Court. Under clause (1) of Article 227 of the Constitution, every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.

10. In Estralla Rubber v. Dass Estate (Pvt.) Ltd [(2001) 8 SCC 97], the Apex Court held thus;

                  "The scope and ambit of exercise of power and jurisdiction by a High Court under Art.227 of the Constitution of India is examined and explained in number of decisions of this Court. The exercise of power under this Article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do duty expected or required by them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the courts subordinate or tribunals. Exercise of this power and interfering with the orders of the courts or tribunal is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the fact of the record. The High Court can set aside or ignore the findings of facts of inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or Tribunal has come to."

11. In Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329] the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.

12. In Jai Singh v. Municipal Corporation of Delhi [(2010) 9 SCC 385], while considering the nature and scope of the powers under Article 227 of the Constitution of India, the Apex Court held that, undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts, as well as statutory or quasi-judicial tribunals exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well-established principles of law. The exercise of jurisdiction must be within the well-recognised constraints. It cannot be exercised like a 'bull in a china shop', to correct all errors of the judgment of a court or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice.

13. In K.V.S. Ram v. Bangalore Metropolitan Transport Corporation [(2015) 12 SCC 39] the Apex Court held that, in exercise of the power of superintendence under Article 227 of the Constitution of India, the High Court can interfere with the order of the court or tribunal only when there has been a patent perversity in the orders of the tribunal and courts subordinate to it or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted.

14. In Sobhana Nair K.N. v. Shaji S.G. Nair [2016 (1) KHC 1] a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law.

15. In view of the law laid down in the decisions referred to supra, the High Court, in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India, cannot sit in appeal over the findings recorded by a lower court or tribunal. The supervisory jurisdiction cannot be exercised to correct all errors of the order or judgment of a lower court or tribunal, acting within the limits of its jurisdiction. The correctional jurisdiction under Article 227 can be exercised only in a case where the order or judgment of a lower court or tribunal has been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. Therefore, no interference under Article 227 is called for, unless the High Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted.

16. While coming to the facts of the present case, though the respondent alleges negligence on the part of the petitioners in convening the DPC at the proper time, by which delay occurred in granting promotion to the respondent on the arising of a vacancy in the promotion post, it is not a case of non granting of promotion to the respondent till his retirement. Admittedly, the respondent was retired from the service, from the promoted post of Additional Director of Agriculture on 31.05.2018. He was promoted to the said post on 19.04.2018. The contention of the respondent is that the vacancy in that promotion post arose on 08.07.2017, and it was due to the non-convening of DPC to suggest the person entitled for promotion; the delay occurred in granting promotion to the respondent. It was under those circumstances that the respondent claimed the benefit of notional promotion from 08.07.2017 till 19.04.2018. But according to the petitioners, the delay in convening the DPC was due to administrative reasons. The select list was published on 10.04.2018 after the DPC meeting held on 27.03.2018. Therefore, the point for consideration is whether there is sufficient material to hold that the delay in convening the DPC in the instant case amounts to administrative lethargy, thereby entitling the respondent to get notional promotion with pay and allowances for the period during which he did not actually work in the promotion post.

17. In Dr Amal Satpathi [2024 SCC Online SC 3512], on the issue of delay in promotion, by referring to Rule 54(1)(a) of the West Bengal Service Rules, 1971, the Apex Court held thus;

                  “18. Upon a bare perusal of Rule 54(1)(a) of the West Bengal Service Rules, it is clear that promotion cannot be retrospectively granted after retirement, as it requires the actual assumption of duties and responsibilities of the promotional post. In the present case, since respondent No.1 superannuated before the final approval of his promotion, he could not have formally assume the charge of the promotional post of Chief Scientific Officer. Therefore, although respondent No. 1 was recommended for promotion, Rule 54(1)(a) of the West Bengal Service Rules precludes him from getting the financial benefits of the promotional post without having taken on the responsibilities of the said post i.e. Chief Scientific Officer.

                  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 recognised 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 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:

                  'Article 14 and Article 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 Art.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).

                  xxxx xxxx xxxx

                  27. In our opinion, the above view expressed in Ashok Kumar Gupta v. State of U.P., [1997 (5) SCC 201], and followed in 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 "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 Artcile 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.'

                  xxxx xxxx xxxx

                  "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 [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 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 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.

                  21. While we recognize respondent No.1's right to be considered for promotion, which is a fundamental right under Article 14 and Article 16(1) of the Constitution of India, he does not hold an absolute right to the promotion itself. The legal precedents discussed above establish that 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. Considering that respondent No.1 superannuated before his promotion was effectuated, he is not entitled to retrospective financial benefits associated to the promotional post of Chief Scientific Officer, as he did not serve in that capacity”. (emphasis supplied)

18. In the order dated 19.08.2025 in Civil Appeal No.10898 of 2025, which was one filed against the judgment of this Court in O.P.(KAT)No.352 of 2024, the Apex Court, on the issue of delay and laches in approaching the Tribunal, held thus;

                  “(7) After hearing learned counsel for the parties, we find that the claim made by the respondent was highly belated as the OA itself was filed by the respondent in the year 2019, i.e. more than 11 years after he had retired from service on 31.01.2008. The petitioner had filed the OA seeking the benefit of promotions and arrears of pay and allowances as had been granted to his juniors during the course of his employment, ignoring his claim.

                  (8) Whether repeated representations can justify delay and laches in approaching the Tribunal/court? The law on this issue is well settled. Reference can be made to the judgment of this Court in State of U.P. v. Rajmati Singh, whereby, dealing with the issue of delay and laches, it was held as under:

                  “12. In our considered view, the respondent like any vigilant citizen, especially given that she does not belong to economically or socially backward segments of the society, was expected to assert her rights before an appropriate forum within a reasonable time. Repeated representations neither give rise nor revive the cause of action, if it had already arisen in the past. The respondent's difficulties do not end there, given that her services were brought to an end when she was denied to resume her duties in the year 1974. She was, thus, required to seek a declaration of her continuity or have a writ of mandamus issued for her reinstatement. She did not do either.”

                  (9) Further reliance is placed on the judgment passed by this Court in State of Orissa vs. Laxmi Narayan Das. It has been opined therein as under:

                  “16. ...Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant “a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of time" and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis. … … A court is not expected to give indulgence to such indolent persons- who compete with `Kumbhakarna' or for that matter 'Rip Van Winkle'. In our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold."

                  (10) For the reasons mentioned above, the order passed by the Tribunal as well as the High Court cannot be sustained. The OA and the Writ Petition filed by the respondent deserve to be dismissed on account of huge delay in availing the remedy for redressal of his grievance”.

19. In Ramesh Kumar [2015 14 SCC 335], the Apex Court, while considering the claim of the appellant therein for pay and allowances for the period between the date of his dismissal and the date of reinstatement in service, held thus;

                  “15. We are conscious that even in the absence of statutory provision, normal rule is "no work no pay". In appropriate cases, a Court of law may take into account all the facts in their entirety and pass an appropriate order in consonance with law. The principle of "no work no pay" would not be attracted where the respondents were in fault in not considering the case of the appellant for promotion and not allowing the appellant to work on a post of Naib Subedar carrying higher pay scale. In the facts of the present case when the appellant was granted promotion w.e.f. 01.01.2000 with the ante - dated seniority from 01.08.1997 and maintaining his seniority alongwith his batchmates, it would be unjust to deny him higher pay and allowances in the promotional position of Naib Subedar”.

                  (underline supplied)

20. In Dr P.K. Sundara Raj [2019 SCC Online Ker 18298], a Division Bench of this Court, on the issue of retrospective promotion to the respondent-applicant therein as Professor, who was denied the promotion due to the pendency of disciplinary proceedings, held thus;

                  “12. Even though, as per Rule 23(a) of Part I KSR, an officer shall begin to draw the pay and allowances attached to the tenure of a post, only with effect from the date he assumes the duties of that post, Rule 23(c), prior to its amendment, provided that promotions which do not involve change of duties should be given effect from the date on which the vacancy arose. In Exhibit P10 the Government have found that the applicant was entitled for promotion with effect from 1.5.1998. The delay in effecting the promotion being not attributable to the applicant in any manner and on the contrary, being attributable to the administrative delay, the applicant cannot be denied the benefits legitimately due to him. The Honourable Apex Court in Ramesh Kumar, held that the principle of ‘no work no pay’ cannot be applied as a rule of thumb and would depend on the facts and circumstances of each case. It was also held that the principle of ‘no work no pay’ would not apply when the employer was at fault in not considering the case of the incumbent for promotion and not allowing him to work in a post carrying a higher grade.”

                  (underline supplied)

21. From the perusal of the judgments referred supra, it can be seen that though the learned Government Pleader relied on the judgment dated 19.08.2025 in Civil Appeal No.10898 of 2025 of the Apex Court, the said judgment is not applicable to the facts of the case in our hand. By that judgment, the Apex Court interfered with the judgment of this Court, only on the ground of delay in approaching the Tribunal.

22. Similarly, in the judgments relied by the learned counsel for the respondent, such as Ramesh Kumar [(2015) 14 SCC 335], and Dr P.K Sundara Raj [(2019) SCC Online Ker 18298], the employee was denied promotion due to the pendency of disciplinary proceedings. Therefore, the principles laid down in those judgments are also not applicable to the facts of the case in our hands.

23. At the same time, from the perusal of the judgment of the Apex Court in Dr. Amal Satpathi [(2024) SCC Online SC 3512], it can be seen that the Rule 54(1)(a) of the West Bengal Service Rules mentioned therein is almost similar to that of Rule 23(a) of Part I KSR. It is consistently held by the Apex Court that the right of promotion cannot be claimed as a fundamental right, but a right to be considered for promotion has been treated as a fundamental right, apart from being treated as a statutory right. Therefore, the point to be considered in the present case is whether the respondent can claim that the aforesaid fundamental right to be considered for promotion was violated due to the delay in convening the DPC in the instant case.

24. The pleadings and materials on record would show that in the instant case, the respondent was not denied promotion until his retirement on 31.05.2018. On the contrary, he was granted promotion on 19.04.2018, before his retirement. The delay in constituting the DPC was to suggest the persons suitable for promotion in the year 2017, for the vacancy in the promotion post that arose on 08.07.2017. Later, the DPC was convened on 27.03.2018, and the respondent was granted promotion vide Annexure A6 order dated 19.04.2018. The delay occurred in convening the DPC, which according to the petitioners is due to administrative reasons, cannot be said as an administrative lethargy, while considering the period of delay. Therefore, granting notional promotion and consequential benefits to the respondent for the period he did not actually work in the promotion post will give an undue benefit to the respondent.

25. Having considered the pleadings and materials on record and the submissions made at the Bar, we find that the Tribunal failed to consider these aspects in their proper perspective while passing the impugned Ext.P3 order. Therefore, the impugned Ext.P3 order of the Tribunal is liable to be set aside.

In the result, the original petition is allowed by setting aside Ext.P3 order dated 31.10.2025 passed by the Tribunal in the original application and the original application stands dismissed.