No Vested Right to Promotion Where Cadre Has No Vacancy, Holds J&K and Ladakh High Court

A retired government driver's challenge to SRO 28 of 1996 fails; the court holds that three in-situ financial upgradations bar any claim of financial loss from non-promotion to the post of Chauffeur.

The High Court of Jammu & Kashmir and Ladakh at Srinagar dismissed a writ petition filed by Mohammad Yaseen Khan, a retired government Driver, who sought to strike down the Note appended to Rule 1 of SRO 28 of 1996 and to compel the respondents to grant him functional promotion to the post of Chauffeur with retrospective effect. Justice Shahzad Azeem, sitting singly, pronounced the full judgment on 6 July 2026. The court held that promotion is not a matter of right, that courts cannot direct the creation of posts or expansion of cadre strength, and that Khan's failure to demonstrate any financial loss after three in-situ financial upgradations left him with no actionable grievance.

The Petitioner's Service History and Grievance

Mohammad Yaseen Khan was appointed as a Driver in the pay scale of Rs. 900–1800 on 25 March 1989 in the cadre of the Institute of Management, Public Administrative and Rural Development (IMPA). During his service he received three in-situ promotions under SRO 14 of 1996 dated 15 January 1996, each carrying a higher pay scale:

• First in-situ promotion on 17 June 1998 in the pay scale of Rs. 4500–125–3400.
• Second in-situ promotion on 11 January 2007 in the pay scale of Rs. 5000–150–8000.
• Third in-situ promotion on 9 November 2017 in the pay scale of Rs. 9300–34800 plus Grade Pay of Rs. 4210.

Separately, the departmental cadre of Drivers was restructured under SRO 28 of 1996 dated 25 January 1996. The Note to Rule 1 of that SRO created a two-step promotional ladder: Drivers (Grade-II) who completed five years' service in the pay scale of Rs. 950–1500 became eligible for promotion as Drivers (Grade-I) in the pay scale of Rs. 1200–2040, and Drivers (Grade-I) who completed five years in that scale could further be promoted as Chauffeurs in the pay scale of Rs. 1640–2900 — both steps being expressly “subject to availability of posts.”

Khan had also filed a civil suit, which was decreed in his favour. Despite that decree, the respondents declined to promote him to the post of Chauffeur on the ground that no vacancy existed. The IMPA cadre is described in the petition as small, with only one sanctioned post of Chauffeur, which was occupied by a more senior employee. Khan retired on 31 March 2025 on attaining the age of superannuation.

His core challenge before the High Court was two-fold. He argued that the “subject to availability of posts” rider in the Note to Rule 1 of SRO 28 should be struck down as arbitrary, unreasonable and ultra vires the Constitution, because completion of five years' qualifying service ought to operate as the sole and automatic trigger for promotion. He also sought a writ of mandamus directing the respondents to promote him with retrospective effect and all consequential benefits.

The Legal Question

Justice Azeem framed the core issue as whether a government employee possesses any vested right to demand promotion to the next higher grade by insisting upon an increase in cadre strength. That framing was decisive: it meant the court would examine not just Khan's individual claim but also the constitutional validity of the condition that made promotion subject to post availability.

The petitioner's counsel, Mr B. A. Misri, argued that the note as drafted rendered the promotion rule illusory for employees in small cadres, effectively depriving them of promotion throughout their service. The government advocate, Mr Numan Idrees Malik, countered that Khan had already received monetary benefit through three in-situ promotions and could not claim functional promotion as a matter of right, with non-promotion attributable entirely to the absence of a vacancy.

How the Court Reasoned

The court started from the financial position of the petitioner. Khan had received three rounds of in-situ financial upgradation over the course of his career. The petition contained nothing to show that, after receiving those upgradations, he had suffered any financial loss as a consequence of not being functionally promoted to Chauffeur. The court treated this absence of pleaded financial prejudice as significant, observing that even if a finding of entitlement to functional promotion were made at this stage, relief could only be moulded around demonstrable financial loss — and none had been pleaded or disclosed.

On the broader constitutional question, Justice Azeem reiterated settled principles. Promotion is not a matter of right; it turns on applicable rules, the existence of vacancies, eligibility and administrative policy. The Constitution does not prescribe any specific criteria for promotion. The only enforceable right an employee has in the matter of promotion is the right to be considered for promotion, flowing from Articles 14 and 16 of the Constitution. Failure to consider an eligible employee may offend that right, but it does not translate into a right to actual promotion or into a right to compel structural changes such as cadre expansion.

The court held that the Government has wide discretion to determine, review, restructure or re-fix cadre strength on the basis of administrative rules, policy and resources. Employees cannot demand the encadrement of additional posts or the creation of new posts to facilitate promotions. Such a demand, the court said, is in substance an invitation to the court to direct the Government to create a post, which is not a judicially enforceable right.

The court drew on State of Odisha v. Sree Pati Ranjan Dash, 2026 SCC Online SC 879, where the Supreme Court held that employees have no vested right or legitimate expectation to compel the Government to fill vacancies through promotion, especially during cadre restructuring. It also relied on Union of India & Ors. v. Ilmo Devi & Anr., (2021) 20 Supreme Court Cases 290, in which the Supreme Court held that the High Court, in exercise of jurisdiction under Article 226 of the Constitution, cannot issue mandamus to direct the Government to sanction and create posts or to formulate a particular regularisation policy, as framing of any scheme or creation and sanction of posts is the sole prerogative of the Government.

Turning to the challenge to the Note itself, the court found the petition deficient in basic material particulars. There was nothing to demonstrate that the Note, as framed, discriminates against similarly situated employees, or that the Government has applied it in violation of Articles 14 and 16. On the contrary, the court observed that the rule has been applied uniformly across departments based on cadre size. Stagnation alone does not render a valid cadre rule unconstitutional.

The court also addressed the broader principle that limited promotional avenues and cadre restructuring are executive and policy matters. Courts do not strike down rules merely on the ground of stagnation, nor do they direct the creation of posts or the grant of functional promotions outside the rules, unless a violation of Articles 14 and 16 is manifest. The court found no such manifest violation here. The “subject to availability of posts” rider in SRO 28 was held to be constitutionally valid. Long stagnation in small cadres is a known hardship but does not justify judicial re-writing of the rules.

Outcome

Justice Shahzad Azeem dismissed SWP No. 2236/2017 along with all connected CMs, finding the writ petition bereft of merit. All interim directions subsisting as on the date of the judgment were vacated. The judgment was approved for reporting.