My Humble Submission to Hon'ble Justice
Subhash Vidyarthi
By - Aparajita Singh student of Banasthali
Vidyapeeth pursuing BALLB in 5th Year
TOPIC: CAN PROMOTION BE CLAIMED AS
RIGHT
Table of Contents
HEADINGS;
I. WHAT IS PROMOTION
II. SCOPE AND LEGALITY OF PROMOTION
III. RECOGNITION TO PROMOTION INTERNATIONALLY
IV. PROVISION OF PRMOTION IN ARMED FORCES
V. DEBATE OVER PROMOTION IS A RIGHT OR PRIVILEGE
VI. CONCLUSION
VII. BIBLIOGRAPHY
I. WHAT IS PROMOTION:
Promotion is moving of an employee’s position vertically upwards this
change in position creates new rights as well as liability over that person.
This procedure is followed to ensure fundamental working of an
institution. Promotion is done where there is provision of retirement
brewing; this chain of retirement, vacancy then either recruitment of
promotion is adapted in Indian administration.
Now in case of promotion the question which comes in our
minds ,is this promotion necessary, is it a legal right provided or guaranteed by
the authorities where one works as an employ and have experience and is well
versed or skilled to get higher grade promotion is it his legal right to get
promoted. Whether our country has rectified it as a right or it is a privilege
provided to an employee on the discretion of authority. So on this dilemma,
many pronouncements of hon’ble courts is being quoted, which specify the non-
arbitrary or reasonable ground, which must be looked after while promoting.
“Educational qualifications can be made the basis for classification of
employees in the matters of pay scales, promotions, et cetera. Higher pay scale
can be prescribed for employees possessing higher qualifications. Similarly, in
the matter of employee promotion, classification on the basis of educational
qualification so as to deny eligibility to a higher post to an employer processing
lesser qualification is valid.”1
“Educational qualifications can be justifiable be made the basis for qualification
for the purpose of promotion to the higher post.”2
Educational qualification is the ground on which promotion took place. Basis of
1
Markandeya Vs State of Andhra Pradesh, AIR 1989 SC 1308
2
Roop Chand Adalakha Vs Delhi development authority, AIR 1989 Sc 307
promotion;
Seniority: On this basis, one can be promoted on the behalf of rank over
which he was appointed. If one retires, then whosoever will be after him
rank wise will be promoted to his workplace or office of profit.
Educational qualification: On this basis, one can be promoted on the
behalf of his education qualification i.e. if he has the qualification, which
is suitable for higher grade, then he will be promoted at that office of
profit.
Qualification cum seniority: it is the best approach to decide whether on
is eligible for promotion or not as if the person who is getting promoted
will be appointed according to his eligibility or competency.
In India departmental promotion committees deals with the promotion which is
an organisation of Department of Personnel and Training, India , The it shall for
promotion to posts/grades/services in the aforesaid categories, grade officers
as 'fit' or 'unfit' only with reference to the benchmark of 'Good'. Only those who
are graded as 'fit' shall be included in the select panel prepared it in order of
their inter-se seniority in the feeder grade.
II. SCOPE AND LEGALITY OF PROMOTION AS A RIGHT:
According to service jurisprudence, promotion is mere advancement of
position to higher grade. In our country there are many government as
well as private sectors or institutions which offers jobs either through
examinations or through interviews to give one eligible candidate his right
to be appointed and to earn wages for living life in the best possible way
which is an interpretation of Article 21of Indian Constitution which
confers many rights under one heading which is ‘protection of life and
personal liberty’. This article protects our life and ensures our living of a
dignified or liberal living of a person. But is there any right provided for
being promoted as well?
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. S M SubramaniumJ. Of Madras High court in March 2022 in his
judgement of case B. Muthuramalingam v. Government of India3: The
employee per se cannot claim promotion .No doubt; consideration for
promotion is a fundamental right of the employee. Further, the Court
added that, the employees could not insist upon administrative
prerogative though they are eligible for promotion/appointment, as the
case may be. The petitioner claimed that he was working as District
Revenue Officer and was eligible for the conferment of post in Indian
Administrative Service and if Cadre Strength Review Committee has been
constituted duly in time, he would be getting an opportunity of securing
appointment as I.A.S Officer. However, such a claim is hypothetical in
nature. Bench stated that it cannot make a decision on future events.
Once a decision is taken by the Authority Competent to prepare a panel
for promotion, then all eligible persons are to be included for grant of
promotion to the post of I.A.S.” High Court added that, as far as I.A.S. is
concerned, the Central Government has to take a decision and therefore,
the petitioner cannot have any right to claim that Cadre Strength Review
Meeting is to be conducted for granting promotion. Additionally, the
Court observed that mere preparation of panel by the Authority
Competent would not be a ground to confer any right on the petitioner to
seek a direction against the Government of India to convene a Review
Committee Meeting and to prepare a panel.”
3
, 2022 SCC OnLine Mad 1306
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 therefore.
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. However, Article 16 of Indian constitution confers the equal
opportunity in the field of service there is no precise meaning of the term equal
opportunity. Abroad interpretation of this term is provided by constitution of
India. This can be deciphered as it can be as the equal opportunity in case of
projects or in case of promotion or performance or training etc. “Equal
opportunity in matters of appointment to State functions is what Article 16
promises. According to his or her credentials and capabilities, every citizen
should be eligible for employment or appointment to any office under the State,
according to the concept of equality of opportunity.” This was expressed by
Supreme Court in State Of Jammu & Kashmir vs Triloki Nath Khosa & Ors 4
“All citizen must have chance to be appointed and get employment within a
state.”5 In light of this, the provision does not restrict the state from setting the
appropriate standards for hiring into government positions, and the authority is
free to set any further appointment requirements that would be beneficial in
maintaining adequate discipline among the servants.
Consequently, the following are covered by the guarantee in clause (1): (a) initial
appointments, (b) promotions, (c) termination of employment, and (d) issues
pertaining to the wage, periodic increments, leave, gratuity, pension, age of
superannuation, etc. The equal pay for equal effort principle is also covered in
clause.
4
1974 AIR, 1 1974 SCR (1) 771
5
Article 16(1) of Constitution of India
The scope and legality of promotion during employment can vary depending on
a number of factors, including the laws and regulations in the country or state
where the employee works, the policies and practices of the employer, and the
terms of the employment contract or collective bargaining agreement.
In general, employers have the right to promote employees based on their
qualifications, skills, and performance. However, employers must ensure that
promotions are made fairly and without discrimination based on factors such as
race, gender, age, religion, or disability. In addition, employers must follow any
applicable laws and regulations related to employment and promotion, such as
anti-discrimination laws, minimum wage laws, and labor laws.
If an employee believes that they have been unfairly passed over for a
promotion or discriminated against in the promotion process, they may have
legal recourse. Employees may be able to file a complaint with their employer's
human resources department or file a claim with a government agency such as
the Equal Employment Opportunity Commission (EEOC) or the Department of
Labor.
One of the landmark cases in India that dealt with the right to promotion is the
case of Uma Devi vs. State of Karnataka. 6In this case, the Supreme Court of
India ruled that there is no fundamental right to promotion, but that employees
who are eligible for promotion have a legitimate expectation of being
considered for promotion. The Court also held that promotions must be made
on the basis of seniority-cum-merit, and that any deviation from this principle
must be justified by the employer.
Another important case relating to promotion is the case of State of Punjab vs.
Jagjit Singh. In this case, the Supreme Court of India held that an employee who
has been promoted on an ad-hoc basis has a legitimate expectation of being
confirmed in that post, provided that he or she meets the eligibility criteria for
the post. There have been many other cases in India that have dealt with the
right to promotion, including cases involving discrimination, reservation policies,
and the interpretation of promotion rules and policies.
1.State of Haryana vs. Piara Singh - In this case, the Supreme Court of India held
that an employee who is eligible for promotion cannot be denied promotion on
the ground that there are no vacancies available.
2. State of U.P. vs. Kishan Lal - In this case, the Supreme Court of India held that
employees who are promoted on the basis of seniority-cum-merit have a
legitimate expectation of being confirmed in their posts, provided that they meet
the eligibility criteria for the post.
3. State of Punjab vs. Amar Singh - In this case, the Supreme Court of India held
that employees who are promoted on an ad-hoc basis have a legitimate
expectation of being confirmed in their posts, provided that they meet the
eligibility criteria for the post.
4. State of Rajasthan vs. Mahaveer Prasad - In this case, the Supreme Court of
India held that an employee who is eligible for promotion cannot be denied
promotion on the ground that he or she has not completed the required length
of service.
These cases illustrate the importance of fairness and transparency in the
promotion process, and the need for employers to ensure that employees are
promoted on the basis of merit and eligibility criteria.
PROVISION OF PROMOTION UNDER INDIAN LABOUR LAW;
Under Indian labor laws, employers are generally required to follow
fair and transparent promotion policies. This means that promotions
should be based on objective criteria, such as performance, seniority,
and qualifications, and should not be influenced by discriminatory
factors such as race, gender, religion, or caste. If an employee
believes that they have been unfairly denied a promotion, they may be
able to seek redress through legal channels.
The first step in seeking redress would be to try to resolve the
issue internally by discussing it with the employer or human
resources department. If this does not resolve the issue, the
employee may consider filing a complaint with the labor
commissioner's office or the appropriate labor court. The labor
court will then hear the case and make a determination as to
whether the employer acted unfairly or in violation of the law.
If the labor court finds in favor of the employee, they may be
entitled to compensation, including back pay, reinstatement, or
other remedies. However, it is important to note that the process
of seeking redress through legal channels can be lengthy and
complex, and it is important to consult with a qualified legal
professional before taking any action.
INTERNATIONAL STATUS OF PROMOTION’S LEGALITY;
The United States Constitution does not provide any specific right of promotion.
However, the Constitution does protect certain rights that can be related to
employment and promotion, such as the right to free speech, the right to equal
protection under the law, and the right to due process. Additionally, federal and
state laws have been enacted to protect workers from discrimination and
ensure equal opportunities for employment and promotion.
The scope and legality of promotion during employment can vary depending on
a number of factors, including the laws and regulations in the country or state
where the employee works, the policies and practices of the employer, and the
terms of the employment contract or collective bargaining agreement.
In general, employers have the right to promote employees based on their
qualifications, skills, and performance. However, employers must ensure that
promotions are made fairly and without discrimination based on factors such as
race, gender, age, religion, or disability. In addition, employers must follow any
applicable laws and regulations related to employment and promotion, such as
anti-discrimination laws, minimum wage laws, and labor laws.
If an employee believes that they have been unfairly passed over for a
promotion or discriminated against in the promotion process, they may have
legal recourse. Employees may be able to file a complaint with their employer's
human resources department or file a claim with a government agency such as
the Equal Employment Opportunity Commission (EEOC) or the Department of
Labor.
Promotions and employee benefits are an important part of many employment
contracts around the world. Here are some examples of promotions and
employee benefits from different countries:
1. The Googleplex - Google is known for its employee perks, including free
meals, on-site gyms, and even haircuts. The company's headquarters in
Mountain View, California, is known as the Googleplex and includes a range of
amenities for employees.
2. The Patagonia Sabbatical Program - Outdoor clothing company Patagonia
offers a sabbatical program for employees who have worked at the company for
at least five years. The program includes paid time off and funding for travel and
environmental projects.
3. The Microsoft Employee Stock Purchase Plan - Microsoft offers an employee
stock purchase plan that allows employees to purchase company stock at a
discounted rate.
4. The Goldman Sachs Returnship Program - Investment bank Goldman Sachs
offers a returnship program for employees who have taken a career break. The
program provides training and support to help employees return to work.
5. The Starbucks College Achievement Plan - Starbucks offers a college
achievement plan that provides tuition reimbursement for employees who are
pursuing a degree at Arizona State University.
6. The Zappos Holacracy - Online shoe retailer Zappos operates under a unique
management system called Holacracy, which gives employees more autonomy
and decision-making power.
7. The Amazon Career Choice Program - Amazon offers a career choice
program that provides funding for employees to pursue training and education
in high-demand fields.
8. The Salesforce 1-1-1 Model - Software company Salesforce operates under a
1-1-1 model, which involves donating 1% of its equity, 1% of its employees' time,
and 1% of its products to charity.
9. The Airbnb Employee Travel Credit - Airbnb offers employees a travel credit
that they can use to stay in any Airbnb listing around the world.
10. The Netflix Unlimited Vacation Policy - Streaming company Netflix has an
unlimited vacation policy that allows employees to take as much time off as
they need, as long as their work is done.
11. The Toyota Kaizen - Japanese carmaker Toyota is known for its Kaizen
philosophy, which emphasizes continuous improvement and encourages
employees to suggest ideas for improving the company's operations.
12. The Whole Foods Market Team Member Discount - Grocery chain Whole
Foods Market offers a team member discount to employees, which allows them
to save money on their groceries.
DEBATE ON PROMOTION SHOULD BE A RIGHT OR NOT;
The debate over whether promotion should be a legal right under the
constitution is complex and multifaceted. Some argue that promotion should be
a legal right because it is a form of recognition for hard work and dedication.
Others argue that promotion should be based on merit rather than being a legal
right.
In general, the constitution of a country sets out the basic rights and freedoms
of its citizens. It is up to the government and the courts to interpret and enforce
these rights. In some countries, promotion may be considered a legal right if it is
outlined in the constitution or other laws. However, in other countries, promotion
is not considered a legal right and is instead based on factors such as seniority,
performance, and qualifications.
Ultimately, the debate over whether promotion should be a legal right under the
constitution depends on a variety of factors, including the specific laws and
regulations in place in a given country, as well as cultural and societal norms.
The right to be considered for promotion and the right to be promoted are two
distinct concepts.
The right to be considered for promotion means that an employee has the right
to be evaluated for a promotion based on their qualifications, performance, and
other relevant factors. The employer is required to consider the employee for
the promotion, but the employee is not guaranteed the promotion.
On the other hand, the right to be promoted means that an employee has a legal
right to be promoted to a higher position. This right is based on factors such as
seniority, performance, and qualifications. In this case, the employer is required
to promote the employee if they meet the necessary criteria.
The difference between these two rights can be illustrated with an example.
Let's say that an employee has been working for a company for several years
and has consistently performed well. The employee believes that they are
qualified for a promotion to a higher position. If the employee has the right to be
considered for promotion, the employer is required to evaluate the employee for
the promotion. However, if the employee has the right to be promoted, the
employer is required to promote the employee if they meet the necessary
criteria.
Overall, the difference between the right to be considered for promotion and the
right to be promoted depends on the specific laws and regulations in place in a
given country or organization.
Conclusion
The question of whether promotion should be a right or not is a complex one
that depends on a number of factors, including the needs of employers, the
rights of employees, and the broader social and economic context in which they
operate. In India, there are a number of factors that impact this question.
On the one hand, India has a large and growing workforce that is increasingly
seeking opportunities for advancement and career growth. Many employees
view promotion as a key means of achieving these goals, and there is a strong
desire among workers to be recognized and rewarded for their contributions to
their organizations. Additionally, there are a number of labor laws in India that
provide protections against discrimination and unfair treatment, which can help
to ensure that promotions are based on merit rather than other factors.
On the other hand, employers in India face a number of challenges in terms of
managing their workforces, including rapid changes in technology, shifting
market demands, and intense competition. In order to remain competitive,
employers must be able to make decisions about promotions and other
personnel matters quickly and efficiently, and they may not always be able to
provide promotions to all employees who seek them.
There have been a number of cases in India that have addressed the issue of
promotion as a right. One such case is the State of Punjab vs. Amar Singh, in
which the Supreme Court held that promotions are not a matter of right, but are
subject to the discretion of the employer. The court noted that promotions must
be based on objective criteria, such as seniority and performance, and that
employers must follow fair and transparent promotion policies.
Another relevant case is the State of Haryana vs. Piara Singh, in which the
Supreme Court held that employees who are denied promotions must have the
opportunity to challenge the decision through a grievance procedure. The court
noted that promotions should be based on objective criteria and that employers
must follow fair and transparent promotion policies.
These cases highlight the importance of fair and transparent promotion policies
in India, and the need for employees to have the opportunity to challenge
decisions that they believe are unfair or discriminatory. While promotion may
not be an automatic right, employers must ensure that promotions are based on
objective criteria and that they follow fair and transparent promotion policies. By
doing so, they can help to ensure that their employees are motivated, engaged,
and productive, and that they are able to achieve their career goals through hard
work and dedication.
Ultimately, the question of whether promotion should be a right or not is a
difficult one that requires a nuanced understanding of the needs and
perspectives of both employers and employees. While labor laws can provide
protections against discrimination and unfair treatment, they may not be
sufficient to ensure that all employees are able to achieve their career goals
through promotion alone. Instead, a more holistic approach that takes into
account the broader social and economic context in which employers and
employees operate may be necessary in order to create a system that is fair,
transparent, and effective for all parties involved.
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