A Critique of the Amal Satpathi Judgment: Supreme, but not Infallible

Recently, the Supreme Court of India (the Supreme Court), in a case dealing with the issue of retrospective promotion, set aside the judgment of the Calcutta High Court (the High Court) and the decision of the West Bengal Administrative Tribunal (the Tribunal). The Supreme Court held that an employee was not entitled to retrospective promotion after his superannuation, nor to the notional financial benefits for the promotional post, as he had not been promoted to the said post before his retirement.¹

This judgment² of the Supreme Court is the subject-matter of this case comment, which is structured as follows: first, the facts forming the background to the dispute are outlined; second, the flaws in the Supreme Court’s approach are highlighted along with the legal principles that were overlooked; and finally, the case comment concludes with a proposed alternative solution. The author argues that the proposed solution is not only better suited to the facts of this case but also provides a solution that is in line with the relevant principles and provisions of law for cases of similar nature in the future.

Background

Mr. Amal Satpathi (the employee) was promoted to the post of Principal Scientific Officer on an officiating basis on 24-3-2008. Following an amendment to the relevant rules, he became eligible for promotion to the post of Chief Scientific Officer. The Department initiated the promotional process by approaching the Public Service Commission (the PSC) on 13-4-2016. The PSC recommended the employee for the promotion. However, the Department received the final approval for his promotion on 4-1-2017, by which time the employee had already superannuated on 31-12-2016.

A representation was made to the Department to give effect to his promotion, but the Department denied the request. The relevant part of its decision stated:

In terms of Rule 54(1)(a) of the West Bengal Services (Classification, Control and Appeal) Rules, 1971³ Part I, a government employee shall not draw pay higher than that of his permanent post unless the officiating appointment involves the assumption of duties and responsibilities of greater importance. In the instant case, Dr Amal Satpathi could not join the promotional post within his service tenure. He retired on superannuation on 31-12-2016. As a result, officiation to the higher post with greater responsibilities and importance does not arise. As such, appointment on promotion after retirement with retrospective effect cannot be awarded for Group “A” posts.

The employee challenged this decision before the Tribunal, which ruled that although promotion cannot be granted retrospectively after retirement, notional financial benefits should be granted to ensure pensionary benefits commensurate with the promotional post. The High Court upheld this decision, but the State appealed to the Supreme Court.

In appeal, the Supreme Court, interpreting Rule 54(1)(a) of the West Bengal Service Rules, 1971, set aside the decisions of the Tribunal and the High Court. The Supreme Court emphasised that promotion becomes effective from the date it is granted, rather than from the date a vacancy arises. It relied on precedents to reinforce that while the right to be considered for promotion is fundamental, the actual right to promotion is not.

The fault in “our” approach

It is respectfully submitted that both the approach as also the reasoning in the present judgment are flawed. The reasons for the assertion are enumerated and elaborated below:

(1) Mentioning is not discussing: After mentioning the arguments made on behalf of the employee (and the contesting authorities) the “discussion and conclusion” section of the judgment does not carry a whisper regarding why the arguments made on behalf of the employee were not acceptable. The error in approach was the starting point for the incorrect conclusion as it ignored a critical argument which could have changed the course of judgment.

(2) Putting a premium on illegalities⁴: The gist of the arguments on behalf of the employee was that he was being punished for no fault of his own, and the authorities concerned were being allowed to take advantage of their own wrong, which is impermissible in the eyes of the law. A recent judgment of the Supreme Court, authored by Sandeep Mehta, J., succinctly summarises the proposition of law in the following words:

19. It is beyond cavil of doubt that no one can be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is a sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned.⁵

(3) (Incorrectly) augmenting the application of the principle of “no work, no pay”: The main thrust of the reasoning of the judgment for denying the benefits as claimed by the employee was that owning to his retirement, the employee would not be discharging the obligation attached to the said posts, the entitlements regarding which he was making a claim. The relevant extract of judgment in this regard is reproduced hereinbelow:

Considering that Respondent 1 superannuated before his promotion was effectuated, he is not entitled to retrospective financial benefits associated to the promotional post of Chief Scientific Officer, as he did not serve in that capacity.

Perhaps not in form but certainly in substance, this is nothing but the extension of the principle of “no work, no pay”, according to which the employee would not be paid for that period for which he has not worked, however, this principle would not be applicable where an employee is prevented by the employer from performing his duties.⁶ In the present case also, the employee has been prevented from performing his duties assigned to the promotional post but he has been denied the benefits assigned to the same. In effect, the authorities are allowed to do something indirectly that they are prevented from doing directly, which is impermissible in the eyes of the law and is expressed in the legal maxim, “quando aliquid prohibetur ex directo, prohibetur et per obliquum”.

(4) An artificial distinction and an empty formality: The judgment repeatedly asserts that while the employee has a fundamental right to be considered for promotion, there is no fundamental right to actual promotion. In the facts of the present case, the distinction renders the right to be considered for promotion an empty formality, which would be evident from a hypothetical example. Suppose in the present situation, the case of the employee was not even considered for promotion, and he approached the Court for redressal of his grievance. According to the reasoning discussed above, the direction would have been to consider his case for promotion, but in the ultimate reckoning, he would have been granted no relief as he had retired before his promotion could be effectuated. In substance, this judgment of the Supreme Court renders the employee without a remedy for his grievance, which, as will be shown in the last chapter of this case comment, goes against a basic tenet of law.

Whether there is a right and if yes, what should be the remedy?

The basic tenet of law, in the opinion of the author, which has been inadvertently ignored in the present case is “ubi jus ibi remedium”, which means that wherever there is a right, there shall be a remedy. Before moving forward as to what ought to be the remedy, it is incumbent to clarify what right has been violated since, in the opinion of the Supreme Court, there was no right which was violated that warranted interference.

The author asserts that the right that has been violated is the right against arbitrary administrative action, protected under Article 14 of the Constitution of India⁷. It is true that if the relevant rules are seen in isolation, there was indeed no statutory right for the employee to be given the relief of retrospective promotion and the consequential benefits. But the rules neither mention nor envisage a situation in which the authorities concerned would pick and choose to act as per their whims and caprice. In the opinion of the author, protection against any such action has to be read into the relevant rules by means of judicial interpretation, and the present case an occasion for the same. This is because if the interpretation as put forward by the Supreme Court in the present case is accepted, the authorities concerned would be allowed to pick and choose when and how to apply the provisions of law, which goes against the purpose for which the rules are enacted in the first place, which is to temper the discretion so that its exercise does not become arbitrary. In other words, any action which decides the claim of right to be considered for promotion in public service, which is an instance of Article 16(1) of the Constitution,⁸ must also be analysed on the anvil of Article 14 and right against arbitrariness since both these provisions form part of right to equality in Part III of the Constitution⁹, which right has been violated in the present case.

In the respectful opinion of the author, the correct approach to be adopted in lis of present nature can be found in the judgment of P.S. Narsimha, J. Although the said judgment was given in a matter relating to selection and appointment, the issue in the present case is similar i.e. the duty of constitutional courts in matters dealing with arbitrary or illegal administrative action:

20. We are of the opinion that while the primary duty of constitutional courts remains the control of power, including setting aside of administrative actions that may be illegal or arbitrary, it must be acknowledged that such measures may not singularly address the repercussions of abuse of power. It is equally incumbent upon the courts, as a secondary measure, to address the injurious consequences arising from arbitrary and illegal actions. This concomitant duty to take reasonable measures to restitute the injured is our overarching constitutional purpose. This is how we have read our constitutional text, and this is how we have built our precedents on the basis of our preambular objective to secure justice.¹⁰

It is respectfully submitted that if the constitutional text is read so as to not only control the operation of an administrative action which is illegal or arbitrary but also to address the injurious consequences flowing therefrom, there is no plausible reason as to why the statutory provision governing an administrative action should not be subjected to same rigours.

Suggestions and conclusions

In light of the foregoing discussion, the author respectfully opines that the correct approach lay in supervising the operation of relevant service rules by constitutional safeguards as discussed above. Applying this reasoning, the Supreme Court should have directed the authorities to grant notional financial benefits to the employee for pensionary purposes without disturbing the seniority list. This would not have disrupted administrative processes but would have ensured the protection of rights against arbitrary action. Additionally, considering that this issue involves widespread ramifications in the realms of public service law, the Supreme Court could have taken the opportunity to recommend systemic reforms, such as time-bound approvals for promotions, to prevent similar disputes in the future or to at the very least, to have solutions which can be adjusted and applied to resolve the same.

To summarise, it is stated that by failing to acknowledge the administrative inefficiency and address the injurious consequences flowing therefrom, the present judgment removes the fundamental fetters on administrative (in)action and renders the employee without a right against arbitrariness. It is concluded that the approach, as outlined in this case comment, is not only better suited to present dispute but also establishes a fairer framework for similar cases in the future.