New Delhi: Though promotion is not a fundamental right of employees, right to be considered for it is necessarily one, the Central Administrative Tribunal (CAT) has held.
“Though right to be promoted is not a fundamental right but right of consideration necessarily is a right...,” said a two-member CAT bench headed by Justice Shanker Raju in a recent order.
Directing the government to consider the claim of applicant Prem Mityani, a director in Song and Drama Division here, for upgradation in his post, the tribunal stated that in the matters of promotion, consideration should be effective and meaningful as per the rules.
“A policy decision of the government is its prerogative and is not amenable to the jurisdiction of the tribunal, yet if there has been malafide and violation of Articles 14 and 16 of the Constitution of India, the policy decision is not only amenable to judicial review, but also liable to be declared as not apt in law,” it said.
The tribunal, also comprising member Chitra Chopra, further observed that if this is not addressed by the competent authorities, the clock should be put back to restore the fundamental right of consideration in a fair and reasonable manner.
The principal bench of CAT made the observation on an application of Matiyani, who had approached it with the grievance that his claim for upgradation of post was turned down by the Ministry of Information and Broadcasting and Department of Personnel & Training (DoPT) in January, 2004, without cogent grounds.
Referring to the upgradation of the similarly placed Indian Information Service (IIS) officers as per the recommendations of a High Power Committee (HPC), Mityani had claimed that denial of the same to media heads like him amounted to an “invidious discrimination”, violative of Article 14 of the Indian Constitution which guaranteed right to equality.
The non-implementation of the recommendations of the HPC, which was duly approved by the concerned ministry, sans any justification was an arbitrary act on the part of the government, he had alleged.
The government on the other hand had argued that Mityani did not qualify for the promotion as the 5th Central Pay Commission had made no changes in the pay scale of directors and further his claim was barred by limitation.
The tribunal, after taking into account the submissions by both the parties, noted that any right accruing to him for which he had not acquiesced, being a fundamental right, had to be probed into and his fundamental right of consideration should be restored.
It observed that the recommendations of the HPC were very clear without any reference to its applicability only to IIS and that nothing could obliterate fundamental right of applicant to be considered on equal basis for upgradation, which arose prior to the 5th Pay Commission.
The Bench also dismissed the government’s plea on limitation saying the matter involved poaching of the fundamental right of an individual.