1 2025:CGHC:31600 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 8355 of 2018 1 - Dr. A.K. Jha S/o Shri B. Jha Aged About 50 Years District- Hospital, Bilaspur, Distirct- Bilaspur, Chhattisgarh ... Petitioner Versus 1 - State Of Chhattisgarh Through Secretary, Department Of Health, Manatrlaya Mahanadi Bhawan, Naya Raipur, District- Raipur, Chhattisgarh 2 - Director Health Services, Directorate Health Services, Raipur, District- Raipur, Chhattisgarh ... Respondents For Petitioner : Mr. Tejasva Deo, Advocate holding the brief of Mr. Sunil Otwani,Advocate For Respondents/State : Mr. Rajkumar Gupta, Additional Advocate General Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 09/07/2025 1. The petitioner has filed this petition seeking the following relief(s):- 10.1 That, the petitioner respectfully prays for issuance of suitable writ / direction for directing the respondent authorities to refix the notional seniority of the petitioner from the day the petitioner was entitled to get promoted on the post of Surgical Specialist. 10.2 Any other relief / reliefs, which this Hon'ble Court may think fit and proper in the facts and circumstances of the case with cost of the petition, may also please be granted to the petitioner. 2. Mr. Tejasva Deo, learned counsel appearing for the petitioner would submit that in the year 2018, the petitioner was posted as Medical Digitally signed by RAMESH KUMAR VATTI Date: 2025.07.16 10:44:42 +0530 2 Officer at District Hospital, District Bilaspur. He would contend that the petitioner was holding a degree of M.S. (General Surgery) and that degree was obtained by him in the year 1986. He would further contend that WPS No. 5466/2006 was filed claiming therein the benefit of senior pay scale / promotional benefits and in reply filed by the State, it was stated that the said benefit has already been extended and the claim of the petitioner would be considered for senior pay scale. The writ petition was disposed of vide order dated 24.11.2009. He would further submit that respondent No.1 made a communication with the petitioner on 22.04.2010 and assured that the benefit of promotion would be extended to the petitioner. He would also submit that the petitioner made representations before the respondent authorities, but no heed was paid. He would contend that the petitioner has already got retired from services. He would further contend that the petitioner was entitled to promotion and other consequential benefits, but the same has not been extended, therefore, a direction may be issued to the respondent authorities to consider the claim of the petitioner. 3. On the other hand, Mr. Rajkumar Gupta, learned Additional Advocate General appearing for the State/respondents would submit that the petitioner has claimed notional seniority and other benefits attached to the post of Surgical Specialist including promotion. Mr. Gupta would further submit that the petitioner in the entire petition has not pleaded the date from which he is entitled to get promotion and seniority. He would contend that in the earlier round of litigation, the petition was disposed of with the liberty to make a representation and the respondent authorities were directed to consider it. He would also 3 submit that thereafter the petitioner was promoted to the post of Surgical Specialist vide order dated 25.07.2018. He would state that the petitioner would be entitled to get the benefits attached to the post from the date of promotion and not from the retrospective date as held by the Hon'ble Supreme Court in the matter of Government of West Bengal & Ors. vs. Dr. Amal Satpathi & Ors., 2024 (14) SCALE 294. He would submit that the petition deserves to be dismissed. 4. I have heard learned counsel for the parties and perused the documents. 5. Perusal of the documents would show that the petitioner was promoted to the post of Surgical Specialist vide order dated 25.07.2018 and the pay scale attached to the said post was granted to the petitioner vide Annexure – P/5 dated 28.09.2018. The petitioner was posted to the post of Surgical Specialist at District Hospital, Bilaspur, thus, the grievance of the petitioner with regard to promotion was redressed. 6. With regard to the claim of the petitioner for notional benefits, the Hon’ble Supreme Court in the matter of Dr. Amal Satpathi (supra) has categorically held that the claim of the Government Servant with regard to notional benefits after retirement cannot be considered with retrospective effect. The Hon’ble Supreme Court in paragraphs 15 & 19 held as under:- “15. The primary question that arises for our consideration in the present appeal is whether respondent No.1, who was recommended for the promotion before his retirement but did not receive actual promotion to the higher post due to administrative delays, is entitled to notional financial benefits of the promotional post after his retirement? 19. It is a well settled principle that promotion becomes effective from the date it is granted, rather than from the date a vacancy arises or the post is 4 created. While the Courts have recognized the right to be considered for promotion as not only a statutory right but also a fundamental right, there is no fundamental right to the promotion itself. In this regard, we may gainfully refer to a recent decision of this Court in the case of Bihar State Electricity Board and Others v. Dharamdeo Das, 2024 SCC Online SC 1768, wherein it was observed as follows:- “18. It is no longer res integra that a promotion is effective from the date it is granted and not from the date when a vacancy occurs on the subject post or when the post itself is created. No doubt, a right to be considered for promotion has been treated by courts not just as a statutory right but as a fundamental right, at the same time, there is no fundamental right to promotion itself. In this context, we may profitably cite a recent decision in Ajay Kumar Shukla v. Arvind Rai, (2022) 12 SCC 579 where, citing earlier precedents in Director, Lift Irrigation Corporation Ltd. v. Pravat Kiran Mohanty, (1991) 2 SCC 295 and Ajit Singh v. State of Punjab, (1999) 7 SCC 209, a three-Judge Bench observed thus: 41. This Court, time and again, has laid emphasis on right to be considered for promotion to be a fundamental right, as was held by K. Ramaswamy, J., in Director, Lift Irrigation Corpn. Ltd. v. Pravat Kiran Mohanty in para 4 of the report which is reproduced below: ‘4……. There is no fundamental right to promotion, but an employee has only right to be considered for promotion, when it arises, in accordance with relevant rules. From this perspective in our view the conclusion of the High Court that the gradation list prepared by the corporation is in violation of the right of respondent-writ petitioner to equality enshrined under Article 14 read with Article 16 of the Constitution, and the respondent-writ petitioner was unjustly denied of the same is obviously unjustified.’ 42. A Constitution Bench in Ajit Singh v. State of Punjab, laying emphasis on Article 14 and Article 16(1) of the Constitution of India held that if a person who satisfies the eligibility and the criteria for promotion but still is not considered for promotion, then there will be 5 clear violation of his/her’s fundamental right. Jagannadha Rao, J. speaking for himself and Anand, C.J., Venkataswami, Pattanaik, Kurdukar, JJ., observed the same as follows in paras 22 and 27: [[‘Articles 14 and 16(1) : is right to be considered for promotion a fundamental right 22. Article 14 and Article 16(1) are closely connected. They deal with individual rights of the person. Article 14 demands that the ‘State shall not deny to any person equality before the law or the equal protection of the laws’. Article 16(1) issues a positive command that: ‘there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State’. It has been held repeatedly by this Court that clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The said clause particularises the generality in Article 14 and identifies, in a constitutional sense “equality of opportunity” in matters of employment and appointment to any office under the State. The word “employment” being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16 (1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be “considered” for promotion. Equal opportunity here means the right to be “considered” for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be “considered” for promotion, which is his personal right. “Promotion” based on equal opportunity and seniority attached to such promotion are facets of fundamental right under Article 16(1). * * * 27. In our opinion, the above view expressed in Ashok Kumar Gupta [Ashok Kumar Gupta v. State of U.P., (1997) 5 SCC 201, and followed in Jagdish Lal [Jagdish Lal v. State of Haryana, (1997) 6 SCC 538, and other cases, if it is 6 intended to lay down that the right guaranteed to employees for being “considered” for promotion according to relevant rules of recruitment by promotion (i.e. whether on the basis of seniority or merit) is only a statutory right and not a fundamental right, we cannot accept the proposition. We have already stated earlier that the right to equal opportunity in the matter of promotion in the sense of a right to be “considered” for promotion is indeed a fundamental right guaranteed under Article 16(1) and this has never been doubted in any other case before Ashok Kumar Gupta [Ashok Kumar Gupta v. State of U.P.], right from 1950.’ “20. In State of Bihar v. Akhouri Sachindra Nath, 1991 Supp (1) SCC 334, it was held that retrospective seniority cannot be given to an employee from a date when he was not even borne in the cadre, nor can seniority be given with retrospective effect as that might adversely affect others. The same view was reiterated in Keshav Chandra Joshi v. Union of India, reported 1992 Supp (1) SCC 272, where it was held that when a quota is provided for, then the seniority of the employee would be reckoned from the date when the vacancy arises in the quota and not from any anterior date of promotion or subsequent date of confirmation. The said view was restated in Uttaranchal Forest Rangers’ Assn. (Direct Recruit) v. State of U.P, (2006) 10 SCC 346, in the following words: ‘37. We are also of the view that no retrospective promotion or seniority can be granted from a date when an employee has not even been borne in the cadre so as to adversely affect the direct recruits appointed validly in the meantime, as decided by this Court in Keshav Chandra Joshi v. Union of India held that when promotion is outside the quota, seniority would be reckoned from the date of the vacancy within the quota rendering the previous service fortuitous. The previous promotion would be regular only from the date of the vacancy within the quota and seniority shall be counted from that date and not from the date of his earlier promotion or subsequent confirmation. In order to do justice to the promotes, it would not be proper to do injustice to the direct recruits…… 7 38. This Court has consistently held that no retrospective promotion can be granted nor can any seniority be given on retrospective basis from a date when an employee has not even been borne in the cadre particularly when this would adversely affect the direct recruits who have been appointed validity in the meantime.” (emphasis supplied)” 7. Taking into consideration the above discussed facts and the law laid down by the Hon’ble Supreme Court in the matter of Dr. Amal Satpathi (supra), I do not find any good ground for interference. 8. Consequently, the petition fails and is hereby dismissed. No costs. Sd/- (Rakesh Mohan Pandey) Judge vatti