Underscoring that an employer may revise promotion policy or change criteria for promotion to higher post, the High Court Friday said that an employee cannot insist on a particular promotion policy or certain criteria for promotion to the next level.
The bench of Justice Ali Muhammad Magry made the observation while dismissing a petition which had challenged an advertisement notification with regard to appointment of Principal SKIMS Medical College, Bemina, Srinagar. The petitioners were aggrieved with the advertisement notice wherein the upper age was mentioned 62 years in respect of the faculty of the SKIMS and SKIMS Medical College Bemina as on 1st January 2021 and the appointment fixed for tenure of two years.
On behalf of the government, Advocate General D C Raina and Additional Advocate General Shah Aamir contended that it was for the employer to decide the qualification or the eligibility criteria required for promotion to a higher post.
After hearing the parties, the court said the competent authority was always free to amend, alter and change the existing promotion policy or introduce a new policy, replacing the existing one.
“It is well settled legal position that this court, in exercise of power of ‘judicial review’, is not to embark on an exercise to find out whether the competent authority would have devised or come up with a better promotion policy,” the bench said.
The court held that in the name of ‘judicial review’, it cannot replace the decision taken by the competent authority by its own decision as regards the eligibility criteria for promotion to the higher post or conclude that there ought to have been some other policy against the one devised by the employer.
“All that the court may examine is the legality of the promotion policy or legality of eligibility criteria prescribed for consideration to promotion,” it said. The court observed that it was the decision-taking process and not the decision itself that could call for close scrutiny by it in exercise of power of ‘judicial review’, unless the decision offends a constitutional provision or statute.
Pointing out that the petitioners had assailed certain conditions prescribed by the authorities in the advertisement notice issued for making selection to the post of Principal SKIMS Medical College, Bemina, the court said: “This fixing of eligibility criteria, on the part of the respondents, is clearly a policy decision keeping in view the suitability for the post in question.” The court said in no circumstance this could be said to be discriminatory, arbitrary or having violated any of the rights of the petitioners.
“It can quite safely be said that the respondents are well within their right to fix the eligibility criteria for the post in question keeping in view the suitability and other technical issues, which this court, in ‘judicial review’, cannot go into as it is solely the domain of the employer to do so,” it said.
The court pointed out that the petitioners at the time of responding to the advertisement notice accepted the terms and conditions prescribed in it without any protest. “As such, it cannot now turn around and contend that certain portion of the advertisement notice is bad in law or violates any of their rights,” the court said.