Departmental Promotions: Newspaper Publication Cannot Substitute Direct Notice to Employees; Promotion May Be Antedated to the Date Juniors Were Promoted When Non-Consideration Was Department-Caused
1. Introduction
This Letters Patent Appeal (L.P.A. No. 314 of 2025) before the Jharkhand High Court (Division Bench: Hon’ble the Chief Justice M. S. Sonak and Hon’ble Mr. Justice Rajesh Shankar) arose from a writ proceeding in which
Bikaram Mandal and others (respondent nos. 1–6; original writ petitioners), serving as Junior Engineers, challenged the State’s failure to consider them for promotion to Assistant Engineer (Civil)
in the Road Construction Department, Government of Jharkhand.
The State contended that the employees did not submit documents (e.g., vigilance clearance, asset details) after a public advertisement, and therefore their cases could not be processed. The employees responded that the
relevant departmental letter requiring documents was never communicated to them and that key items like vigilance clearance were to be generated by the department itself. The central issues were:
- whether the State’s reliance on a public advertisement amounted to sufficient notice to its own employees;
- whether denial of consideration for promotion on “document non-submission” grounds was fair when the employees were not individually informed;
- whether promotion could be made effective from the date juniors were promoted (a limited form of retrospective/antedated promotion); and
- whether Supreme Court authority against retrospective promotions applied to these facts.
2. Summary of the Judgment
The Division Bench dismissed the State’s appeal, upheld the Single Judge’s approach, and confirmed that the employees were entitled to promotion
from the date their juniors were promoted, with consequential benefits.
Key findings included:
- This was not a case of ineligibility; the employees met qualification/experience criteria.
- The departmental letter dated 29 August 2022 (Joint Secretary to the departmental head) requiring calling for documents was never communicated to the employees; this factual assertion stood unrebutted.
- Substituted service via newspaper publication cannot be used as a first resort by a department against its own employees; fairness demanded a real opportunity to comply.
- The Supreme Court rulings cited by the State did not bar antedating promotion to the date juniors were promoted, because the employees were not seeking promotion from the date of vacancy/creation of post.
- The Single Judge’s order had already been complied with: the employees’ cases were placed before the DPC, which recommended promotion from the juniors’ promotion date.
- “No work, no pay” was inapplicable because the employees were willing to work, and denial of promotion was held arbitrary.
3. Analysis
3.1 Precedents Cited
The State relied on this decision to argue that promotions should not be granted retrospectively and should take effect only from the date they are granted.
The High Court, however, held the precedent inapplicable on the facts because the employees were not claiming promotion from the date of vacancy or creation of post, but only from the date their juniors were promoted due to
wrongful exclusion from consideration.
(b) Bihar State Electricity Board v. Dharamdeo Das, 2024 SCC OnLine SC 1768
The High Court noted that Dharamdeo Das—relied upon through Dr Amal Satpathi—lays down that promotion is effective from the date it is granted, not from the date a vacancy occurs or a post is created.
The High Court distinguished this rule: the employees here were not asking to relate their promotion back to vacancy/post-creation; rather, they sought parity from the date when juniors were actually considered and promoted,
and their own non-consideration was attributable to the department’s failure to communicate requirements and provide a fair opportunity.
3.2 Legal Reasoning
The Court’s reasoning turns on administrative fairness in promotional processes and on properly identifying what kind of “retrospectivity” is being claimed.
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Failure of communication and unrebutted pleadings:
The Bench treated it as significant that the letter dated 29 August 2022 was not communicated to the employees and that the State did not deny this in its counter-affidavit.
This made it unjust to penalize employees for not producing documents they were never asked to submit.
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Limits on substituted service:
The Single Judge’s reliance on principles akin to Order V Rule 20 CPC (substituted service) was endorsed: newspaper publication is an exceptional mode, not a default mechanism—especially where the employer
has direct access to its own serving employees. The Bench framed this as a requirement of fairness, not mere technical compliance.
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Right to consideration vs. automatic promotion:
Although the Single Judge’s directions resulted in antedated promotion, the Division Bench emphasized that the State, in compliance, actually placed the cases before the Departmental Promotion Committee (DPC).
The DPC then found the employees entitled to promotion from the juniors’ promotion date. This reinforced that the relief was not a “backdoor” promotion but a correction of wrongful non-consideration.
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Why the Supreme Court bar on retrospectivity did not apply:
The Court drew a crucial distinction:
- Dharamdeo Das addresses claims seeking promotion from vacancy/post creation dates.
- This case involved promotion from the date of juniors’ promotion, i.e., correcting an arbitrary denial of timely consideration.
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Consequential benefits and “no work, no pay”:
Since the employees were willing to perform duties and were kept out due to arbitrary process, the Court held “no work, no pay” inapplicable, supporting grant of consequential benefits.
3.3 Impact
This decision is likely to influence service and promotion litigation in Jharkhand in the following ways:
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Higher standard of notice in internal departmental actions:
Departments cannot casually substitute direct communication with public advertisements when dealing with their own employees’ service rights, particularly where adverse consequences follow.
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Antedated promotion as a corrective measure:
While “promotion from vacancy date” remains constrained by Supreme Court authority, this case supports antedating promotion to the date juniors were promoted where an employee was wrongly excluded from consideration for
department-attributable reasons.
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Process integrity and DPC primacy:
The Court’s emphasis that the matter went to the DPC, and the DPC found entitlement, underscores that remedial orders should still respect the statutory/administrative promotion mechanism.
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Drafting and pleading consequences for the State:
The Bench’s reliance on “not denied in counter-affidavit” signals that failure to specifically traverse material facts can decisively weaken the State’s position.
4. Complex Concepts Simplified
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Order V Rule 20 CPC (Substituted service):
A method of serving notice by alternative means (like newspaper publication) when ordinary service is not possible. Courts treat it as exceptional—used only after attempts at normal service fail.
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Right to be considered for promotion:
Employees generally do not have a right to be promoted automatically, but they have a right to fair and timely consideration if eligible.
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Retrospective/antedated promotion:
Making promotion effective from an earlier date. Courts are cautious with this. Here, the earlier date was not vacancy/post creation, but the date on which juniors were promoted—used to cure unfair exclusion.
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Consequential benefits:
Benefits that flow from promotion (pay fixation, seniority-related advantages, allowances) that the employee would have received had the promotion been timely.
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No work, no pay:
A principle often used to deny back wages where the employee did not work. It may not apply when the employee was ready and willing to work but was prevented by an employer’s arbitrary action.
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Condonation of delay:
The Court excused a 101-day delay in filing the appeal, finding sufficient cause and noting the delay was not inordinate.
5. Conclusion
The Jharkhand High Court’s dismissal of the State’s LPA reinforces a pragmatic rule in service law: when eligible employees are denied timely consideration for promotion due to the department’s own procedural unfairness—
including failure to directly communicate requirements and improper resort to newspaper publication—courts may uphold promotion effective from the date juniors were promoted, with consequential benefits.
The judgment also carefully harmonizes this remedy with Supreme Court authority by distinguishing claims for promotion from vacancy/post-creation dates from corrective parity-based antedating anchored to juniors’ promotion.