Right to Be Considered for Promotion Is Fundamental – Employer’s Unfairness Cannot Defeat It: : Gujarat High Court

“Belated APAR in One Lot Is No Communication in Law”, Gujarat High Court delivered a significant reportable judgment holding that inordinate delay in communicating APARs and sending them “in one lot” defeats the very purpose of the appraisal system and violates Articles 14 and 16 of the Constitution.

Justice Maulik J. Shelat ruled that though an employee has no fundamental right to promotion, he certainly has a fundamental right to be fairly considered for promotion. When such consideration is frustrated due to arbitrary and unfair conduct of the employer, the High Court can intervene under Article 226.

The Court directed IRCTC to convene a DPC within one month and reconsider the petitioner’s case for promotion from E-3 to E-4 without applying the benchmark of 21/25 introduced under the IRCTC Promotion Policy, 2012.

“Every Entry Must Be Communicated Within a Reasonable Period” – Dev Dutt Principle Reaffirmed

At the heart of the controversy was the non-communication and belated communication of APARs for the years 2008–09 to 2011–12. These APARs were communicated together on 2nd April 2013, just before the Departmental Promotion Committee met.

Under the IRCTC Promotion Policy, 2012, introduced with effect from 1st September 2012, a benchmark of “21 out of 25 (last 5 years’ CR’s)” was prescribed for promotion from E-3 to E-4. Since the petitioner’s cumulative score fell short, he was denied consideration.

The Court relied extensively on Dev Dutt v. Union of India, Sukhdev Singh v. Union of India, Abhijit Ghosh Dastidar, and earlier precedents.

Quoting Dev Dutt, the Court reiterated:

“Every entry in the annual confidential report of every employee under the State… must be communicated to him within a reasonable period… non-communication is arbitrary and hence violative of Article 14.”

The Supreme Court had clarified that communication serves two purposes: first, it enables improvement in performance; second, it allows meaningful representation. Belated communication frustrates both.

Justice Shelat observed that the rules of natural justice may be flexible, but their essence is fairness. The question in each case is simple: “Have the authorities acted fairly?”

Benchmark Introduced, APARs Not Timely Communicated

The petitioner was promoted to E-3 in 2009 under the IRCTC Promotion Rules, 2007, which required only minimum service and suitability—there was no benchmark.

The scenario changed in 2012 when the IRCTC Promotion Policy introduced, for the first time, a numerical benchmark system. For E-3 to E-4 promotion, an employee had to secure 21 points out of 25 based on the last five APARs.

However, the respondent had not communicated the APARs year-wise. Instead, they were sent together in April 2013, shortly before the DPC met in September 2013.

The Court noted that this action rendered the communication illusory and ineffective.

“This Court cannot by any stretch of imagination consider such communication as within reasonable time.”

“Sending All APARs in One Lot Frustrates the Object” – Natural Justice Violated

The Court emphasized that the object of writing and communicating APARs is developmental, not punitive.

Referring to Baidyanath Mahapatra v. State of Orissa, the Court noted that communication of multiple years’ adverse entries in one lot results in denial of reasonable opportunity to improve performance and to make effective representation.

Justice Shelat observed:

“The purpose of communicating the APARs would get frustrated if all APARs are communicated in one lot… neither the public servant had an opportunity to effectively make his representation due to unreasonable delay, nor had a chance to improve his work.”

The respondent failed to offer any justification for the delay. The Court rejected the argument that delay was merely procedural irregularity.

“Employer’s Lapse Cannot Operate to Employee’s Detriment”

A significant factor weighed with the Court: after 2012–13, when APARs were communicated regularly, the petitioner consistently secured “Very Good” or “Outstanding” gradings.

The Court observed that this demonstrated the practical importance of timely communication:

“On getting the APAR every year… the petitioner was made aware about his work and assessment… thereby he achieved excellence in his service.”

The Court held that had the earlier APARs been communicated in time, the petitioner might have improved and achieved the required benchmark. The respondent’s lapse could not prejudice him.

Right to Promotion vs Right to Be Considered

The respondent argued that promotion is not a fundamental right. The Court agreed in principle but clarified the distinction.

“One may not have the right to promotion, but one has the right to be considered for promotion.”

Where such right is defeated due to arbitrary and unfair action, judicial intervention is warranted.

Though the employer is entitled to change promotion rules and introduce benchmarks, those rules cannot be applied in a manner that unfairly penalizes an employee for the employer’s own failure.

Relief Granted: DPC to Reconsider Without Applying Benchmark

In a calibrated relief, the Court did not strike down the benchmark provision itself. Instead, it held that in the peculiar facts of this case, the benchmark could not be applied against the petitioner.

The Court directed:

“The respondent is hereby directed to hold meeting of the DPC within one month… to consider the case of the petitioner for promotion from Grade E-3 to E-4 without taking into account the benchmark as per the Rules, 2012.”

If found eligible, the petitioner is to be granted promotion from the date his junior was promoted, with notional benefits and continuity of service, though without monetary arrears.

Allowing the writ petition, the Gujarat High Court held that belated communication of APARs in one lot is arbitrary, unfair, and violative of Article 14 and principles of natural justice. The respondent’s conduct frustrated the petitioner’s fundamental right to fair consideration for promotion.

The judgment reinforces that fairness in public administration is not a formality but a constitutional mandate. Communication of APARs must be timely and meaningful—not a ritual compliance undertaken on the eve of promotion.

Date of Decision: 05/01/2026