IS PROMOTION A RIGHT OR A PRIVILEGE? : ARTICLE

IS PROMOTION A RIGHT OR A PRIVILEGE?

Highlights:

• Promotion is the advancement or increase in the post of an employee. It is an added responsibility given to him. A person working wholeheartedly in any organization should be considered for rising to the top.
• Promotion is a major incentive for an employee to work and prove his skills. Sometimes circumstances may occur in the work area that promotion may be denied, or is awarded late. So is promotion a right or a privilege? Is it the right of an employee to be promoted as soon as a vacancy arises? The answer to this is no. No employee has a right to get promoted as soon as the vacancy arises but only a right to be considered. It means that promotion is a privilege to every employee and not a right.
• In a narrow facet, promotion could be a right only when all the necessary recommendations for the promotion of an employee has been made, but only the steps and final stage to push him at the top is left. It becomes his right, as
  a) he is eligible, b) has been recommended to be promoted.
• Hence, promotion is not a right though he has the right to be considered to be promoted before the management.
• Equality in opportunity in the workplace cannot be denied as it is a fundamental right under Article 16 of the Indian Constitution. Every employee has to be given sufficient opportunity to rise and the right to be considered for availing the opportunity to get promoted.

Some leading cases:

‘Eligible candidates have a fundamental right to be considered for promotion against the available vacancy and promoted if adjudged suitable’ says Supreme Court.

1. M. Singh Vs. Union of India[1] where the issue was that whether eligible candidates have a fundamental right to promotion in case of any vacancy if the candidate is suitable. The appellant was Major General in the Indian army and a post of Lieutenant General was vacant at that time. Being the senior most officers he was eligible for promotion and the vacancy. The appellant requested a Selection Committee so as to consider his promotion. The Committee, but, gave its decision just two days before his retirement. At this stage, the President ordered that the Appellant’s term of service should be extended. The Committee however declined. An appeal was hence laid before the Supreme Court. Now, the main questioned which arose in the SC was that whether the non-consideration of the General’s claim would violate his fundamental rights under Article 14 and 16. The Court gave the order that this would amount to a breach of his fundamental right as he was capable for the post but was not uplifted to the post. Thereafter, he was given an extension of service for 2 years by the President and was hence promoted.

The clause (1) of Article 16 is a facet of Article 14. The clause said to promote equality of opportunity. Every employee has a right to rise from the initial post to a higher one. Article 16(1) provides that every employee eligible for promotion will be considered for promotion. Equality in opportunity provided in Article 16(1) means, consideration for promotion. In

2. Ashok Kumar Gupta v State of UP[2], it was ruled that right to be considered for promotion is a fundamental right and no employee will remain unconsidered provided he is eligible for the post. The promotion obviously, depends on the statutory rules and regulations and the decisions of the management. Hence, it is the fundamental right of any employee to be considered for promotion and a fundamental right to be promoted if he eligible for the same. There is no right for the promotion of an employee, but definitely, he has a right to be considered for promotion. There is a vast difference between the right to be considered for promotion and right to promotion. An employee against whom disciplinary action has been taken also has a right to be considered for promotion.

3. Union of India vs. Sangram Keshari Nayak[3] ruled that promotion of an employee is not a fundamental right, however, consideration for it is definitely. Suitability of an employee or not should be left to the committee deciding it, but at least every employee should be given a chance to prove himself.

4. Krishna Chandra Gope vs. The state of Jharkhand and Ors[4], there is no right given to the appellant for promotion to the post of the headmaster and there is no obligation on the management to promote him. His right of consideration cannot be taken away, but at the same, the management has the right to decide the suitable candidate for the post of headmaster. Even if the management wishes to recruit a person from outside, if it finds that the person is not suitable for the promoted post of headmaster, it can do so.

5. P. vs. J.S. Bansal[5] it was ruled that even if any proceedings are being carried out against any employee he has a right to be considered for promotion.

Thus, from the cases, it follows that right to promotion and right to consideration of promotion are far wide things. Right to promotion is a fundamental right only if the person is eligible and is suitable for the post if any vacancy arises and denied (in Armed forces) but the right to consideration of promotion is always available to the employee. He is to be considered for promotion but at the same time, there is no obligation on the management to promote the employee.

Promotion is hence not a right, but only a privilege is given and no department has the obligation to fill the vacancy as soon as it arises even if the person is eligible. Though in a layman’s perception promotion should be given to all, yet the court decided against it so as to ease the workings of the organizations and to choose the most suitable candidate for the promoted post. The SC, in a historical judgment of in H.M. Singh Vs. Union of India elevated the stage of promotion to a fundamental right only when proper recommendations were made and he was perfectly eligible for the post.

[1] (2014) 3 SCC 670

[2] (1980) 3 SCC 625

[3] 1995(70) FLR 89

[4] (2017)

[5] (1998)

BY: Ms. Amisha Bansal

College : University Five year Law college, University of Rajasthan, Jaipur University.

Editor : Ms. Paavni Thareja