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A technician in a corporation stakes a claim to the post of a programme officer on the basis that he has put in the requisite number of services and also is in the payscale to be eligible to be promoted to that post. The Government of India negates his argument on the basis that though as a technician he has put in many years of service and though his pay scale may be on par with the programme executives who are the feeder grade for the promotions, he is not eligible for a managerial post, for the simple reason that he doesnot have the qualification/ ability to man the entire show of which he was but just an important component. The Technician challenges the policy decision before the Administrative Tribunal as being violative of his Fundamental rights.

Off late, the trend in judicial decisions has been that Right to be considered for promotion is considered a fundamental right(1). A delay in promotion is viewed as violative of the employees Art 16 as a natural fallout of Article 14 (2) .

The point of concern is whether in the name of judicial review, is the legislature left with any prerogative to chart out policy decisions.

But the Supreme Court has held that (3) “It is not for Courts/Tribunals to prescribe the mode and manner of recruitment or the ratio between two feeder groups for promotion to a higher category of posts. Exercise of power to make rules in this regard are matters in the domain of the rule making authority and not for Courts or Tribunals to prescribe, for it is well settled that a writ of Mandamus cannot be issued to the Legislature to enact a particular law or to the Rulemaking authority to make rules in a particular manner.

The source of recruitment, the mode and manner in which recruitment should be made and the ratio to be prescribed for promotion etc are all matters of policy for the executive or the rule making authority, in its wisdom, to decide and not for Courts/Tribunals to impose. Whether such a policy choice should be made or not are again matters exclusively in the executive/the rule making authority's realm and unless there is a clear transgression of constitutional provisions, these are areas where Courts/Tribunals are vary of treading into. The wisdom of a policy choice are, as a general rule, not matters of examination by Courts/Tribunals unless the policy decision is demonstrably capricious, arbitrary, not informed by reason or if it suffers from the vice of discrimination or infringes any rule, statute or provisions of the Constitution”.

The Supreme Court held (4) that “The concept of equality in the matter of promotion can be predicated only when the promotees are drawn from the same source. If the preferential treatment of one source in relation to the other is based on the differences between the said two sources, and the said difference have a reasonable relation to the nature of the office or offices to which recruitment is made, the said recruitment can legitimately be sustained on the basis of a valid classification”.

The Apex Court held in (5) The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers”

So, it may be safely deduced at this moment that, though the right to be considered for promotion is a fundamental right of the employees, it cant be invoked in cases where the qualification, nature of function are different, though the pay scale may be in parity. In the name of judicial review courts don’t interfere in policy / day to day administrative decisions unless a violation of a constitutional principle, rule of law or a rule has been grossly violated.

1. Maj Gen H.M. Singh VSM Vs UOI Civil Appeal No. 192/2004
2. Shakti Chand Dogra vs. St of Himachal Pradesh
3. (State of Jammu & Kashmir v. A.R. Zakki 1992 Supp. (1) SCC 548;
Supreme Court Employees Welfare Association v. Union of India;
4.Krishnan Kakkanth v Govt of Kerala (1997) 9 SCC 509
5. In Asif Hameed v. State of J & K 1989 Supp (2) SCC 36

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Category Constitutional Law, Other Articles by - Prashanti