Sunaina Sharma & Ors. Vs. State of Jammu and Kashmir & Ors.

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 4594-4595 of 2017, Judgment Date: Oct 26, 2017

•  It is a settled principle of law that normally no person can be promoted with retrospective effect from a date when he was not born in the cadre.
• The normal rule is that a person is entitled to seniority only from the date when the said person actually joins the post. True it is, that there are exceptions and sometimes “in service”candidates can be granted promotion from a date anterior to their being regularly promoted/appointed.However, this canbe done only if the rules enable retrospective appointment and on fulfilling the other requirement of the rules.
• Seniority has to be reckoned only from the date the person entered into that service.It is well settled that retrospective promotion to a particular group can violate Article 14 and 16 of the Constitution of India. Even ifthe Rules enable the State to make retrospective promotion, such promotion cannot be granted at the cost of some other group. Therefore, the only reasonable interpretation can be that the promotees can get promotion from an anterior date only if they have worked against the said post even if it be on temporary or officiating, or ad-hoc basis etc
• Therefore, on a combined reading of Rule 9 of the Excise Rules and Rule 23 and 24 of the Civil Services Rules, we are clearly of the view that promotion can be granted on retrospective basis to promotee officers from a date on which the clear-cut vacancy in the promotional cadre has occurred subject however to the conditions that the promotee should have worked against that post prior to his regular appointment.

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Sunaina Sharma & Ors. Vs. State of Jammu and Kashmir & Ors.