AIR COMMODORE NAVEEN JAIN versus UNION OF INDIA & ORS. on 3 October 2019

[2019] 13 S.C.R. 241

AIR COMMODORE NAVEEN JAIN

v.

UNION OF INDIA & ORS.

(Civil Appeal No. 3019 of 2017)

OCTOBER 03, 2019

[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]

Armed Forces Tribunal Act, 2007: Promotion policy – Criteria– Merit-cum-seniority or Seniority-cum-merit – Appellant alongwith nine other officers were considered for promotion against fivevacancies in the rank of Air Vice Marshal – Appellant could not bepromoted though he was first in the merit list in view of the fact thathe was placed at serial no.3 in the seniority in the select list of fourcandidates – The first officer on the select list was promoted to therank of Air Vice Marshal against the first available vacancywhereas, next two vacancies arose after the appellant attained theage of superannuation – Since there was no post available for hispromotion prior to his superannuation, he was not promoted –Appellant filed Original Application (OA) before the Tribunalclaiming promotion to the rank of Air Vice Marshal – Grievance ofappellant was in respect of lost chances of promotion inasmuch ashe attained the age of superannuation before the vacancy arose –Tribunal dismissed OA – Hence instant appeal – Held: Clauses 17and 22 of Promotion Policy dated February 20, 2008 are categoricalthat the select list of officers will be prepared from merit list andrearranged in order of seniority – Thus, the final list of thecandidates falling within the zone of consideration in terms of clause11 and who are eligible in terms of clause 13 is determined first bypreparing the merit list on the basis of AR marks and Board marks– Thereafter, the names of the officers found meritorious are to berearranged in order of seniority – Thus, it ensures that the candidatesfalling within the zone of consideration are short listed for promotionbut ultimate promotion from amongst the selected candidates is onthe basis of seniority – Such policy per se cannot be said to beillegal, arbitrary and discriminatory so as to attract the violation ofeither Art.14 or Art.16 of the Constitution – Tribunal was right innot interfering with the said Policy – Constitution of India – Arts.14and 16 – Judicial review.

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AService law: Promotion Policy – Judicial review of – ThePromotion Policy can be struck down only if the policy has noreasonable nexus with the objective to be achieved and isdiscriminatory – The lack of vacancy is not a ground on the basisof which promotion policy can be struck down – In the instant case,mere fact that the appellant could not be promoted on account ofBnon-availability of vacancies before his superannuation is not aground on which the Promotion Policy can be struck down –Administrative law.

Dismissing the appeal, the Court

CHELD: 1. The Policy dated February 20, 2008 does notuse the expression that the promotion is based either on theprinciple of “merit-cum-seniority” or “seniority-cum-merit”.Therefore, the entire policy is required to be examined as towhat is the criteria for promotion rather than using the expressioneither “merit-cum-seniority” or “seniority-cum-merit”. ClausesD17 and 22 are categorical that the select list of officers will beprepared from merit list and rearranged in order of seniority.Thus, the final list of the candidates falling within the zone ofconsideration in terms of clause 11 and who are eligible in termsof clause 13 is determined first by preparing the merit list on theEbasis of AR marks and Board marks. Thereafter, the names ofthe officers found meritorious are to be rearranged in order ofseniority as per clauses 17 and 22 of the Promotion Policy. Suchpolicy per se cannot be said to be illegal, arbitrary anddiscriminatory so as to attract the violation of either Article 14 orArticle 16 of the Constitution. [Paras 10, 18][249-G-H; 254-E-G]F

2. The promotion to the post of Air Vice Marshal isregulated by Circular dated February 20, 2008, therefore, thepromotion can be claimed only in terms of eligibility and the normsfixed therein. Mere fact that the appellant could not be promotedon account of non-availability of vacancies before hisGsuperannuation is not a ground on which the Promotion Policycan be struck down. Since the Promotion Policy is in two stagesi.e. to shortlist the candidates on the basis of eligibility criteriaand on the basis of the marks obtained in the Annual ConfidentialReport and the marks given by the Board, therefore, theHapplicability of principle of seniority cannot be said to be arbitrary or irrational which may make the policy illegal and unsustainable.[Para 21][256-B-D]

3. The promotion has to be affected in terms of statutoryrules and in absence thereof, as per the executive instructions.The policy provides equal opportunities to the officers fallingwithin the zone of consideration and subsequent promotion. Suchpolicy is not discriminatory in terms of Article 14 or denies lackof equal opportunity in terms of Article 16. The promotion to thepost of Air Vice Marshal is governed by the policy of Air Forcewhich is applicable to all officers falling in the zone of consideration.Apart from the policy, the appellant is estopped to challenge thepolicy after participating in the selection process on the basis ofsuch policy. [Paras 22, 23][256-E-F]

Air Cmde Randhir Pratap v. Union of India & Ors. WritPetition (C) No. 18935 of 2006 decided on August24, 2007; Hardev Singh v. Union of India & Anr. (2011)10 SCC 121; B.V. Sivaiah & Ors. v. K. Addanki Babu& Ors. (1998) 6 SCC 720 : [1998] 3 SCR 782 ; Stateof Mysore & Anr. v. G.B. Purohit & Ors. (1967) SLR753; Ramchandra Shankar Deodhar & Ors. v. State ofMaharashtra & Ors. (1974) 1 SCC 317 : [1974] 2 SCR216; Dwarka Prasad & Ors. v. Union of India & Ors.(2003) 6 SCC 535 : [2003] 1 Suppl. SCR 784; A.Satyanarayana & Ors. v. S. Purushotham & Ors. (2008)5 SCC 416 : [2008] 6 SCR 1055; A.P. Public ServiceCommission v. Baloji Badhavath & Ors. (2009) 5 SCC1 : [2009] 5 SCR 688; Rajendra Kumar Srivastava &Ors. v. Samyut Kshetriya Gramin Bank & Ors. (2010) 1SCC 335 : [2009] 15 SCR 936; Madan Lal & Ors. v.State of J & K & Ors. (1995) 3 SCC 486 : [1995] 1SCR 908; Ashok Kumar v. State of Bihar (2017) 4 SCC357 : [2016] 8 SCR 815 – relied on.

Union of India & Anr. v. Major General Manoj Luthra &Ors. Civil Appeal No. 9390 of 2014 decided on September 29,2015 – held inapplicable Ajit Singh & Ors. (II) v. State of Punjab & Ors. (1999) 7 SCC209 : [1999] 2 Suppl. SCR 521 – referred to A

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Case Law Reference

From the Judgment dated 09.03.2016 of the Armed ForcesTribunal, Principal Bench, New Delhi in O.A. No.410/2015.

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Sridhar Potaraju, Sudhanshu Pandey, Ms. Sweta Parihar,Ms. Shiwani Tushir, Abhishek R. Shukla, Ms. G. Usha Sri, T. VishnuMenon, Advs. for the Appellant.

Nachiketa Joshi, Saurabh Mishra, Arvind Kumar Sharma, MukeshKumar Maroria, Advs. for the Respondents.F

The Judgment of the Court was delivered by HEMANT GUPTA, J.

1. The challenge in the present appeal is to an order passed by theArmed Forces Tribunal, Principal Bench, New Delhi[1] on March 9, 2016Gwhereby, the Original Application filed by the appellant was dismissedand also an order of the same date declining leave to appeal to this Courtunder Section 31(1) of the Armed Forces Tribunal Act, 2007[2].

1 for short, ‘Tribunal’H2 for short, ‘Act’

2. The appellant was commissioned in the Administrative Branchof the Indian Air Force on December 11, 1981. He was promoted to therank of Air Commodore in the year 2011. He along with nine otherofficers were considered for promotion against five vacancies in therank of Air Vice Marshal. The appellant could not be promoted thoughhe was first in the merit list in view of the fact that he was placed at Sl.No. 3 in seniority in the select list of four officers. The first officer onthe select list was promoted to the rank of Air Vice Marshal on May 11,2015 against the first available vacancy whereas, next two vacanciesarose on August 1, 2015 and September 1, 2015 i.e. after the appellantattained the age of superannuation on June 30, 2015. Since, there wasno post available for his promotion prior to his superannuation, he wasnot promoted to the rank of Air Vice Marshal.

3. The appellant invoked the jurisdiction of the Tribunal claimingpromotion to the rank of Air Vice Marshal selected by Promotion Boardin order of merit and not in the order of seniority challenging the clausein the Promotion Policy dated February 20, 2008 that the merit listprepared by the Board has to be rearranged in the order of seniority.

4. The argument of learned counsel for the appellant is thatpromotion to the rank of Air Vice Marshal is on the principle of “merit-cum-seniority”. Therefore, seniority cannot be the guiding principle forpromotion once the appellant was found to be meritorious by the PromotionBoard. In support of his argument, learned counsel for the appellantrelied upon judgment of this Court in Ajit Singh & Ors. (II) v. State ofPunjab & Ors.[3] and also to an order passed by this Court in Union ofIndia & Anr. v. Major General Manoj Luthra & Ors.[4 ]whereby, theorder of the Tribunal was affirmed while examining the policy forpromotion to the post of Major General in the Armed Forces MedicalServices. The argument is that similar policy is applicable for promotionto the post of Air Vice Marshal, therefore, in view of the affirmance ofthe judgment of the Tribunal by this Court, such policy cannot be reliedupon. The Tribunal in Major General Manoj Luthra, held as under:

“12. …Once selection is made on the basis of merit and officersare graded in the select list based on that merit following the policyof seniority thereafter is contrary to the provisions of Article 14

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4 Civil Appeal No. 9390 of 2014 decided on September 29, 2015

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Aand 16. We are handicapped on this issue as policy is not subjectmatter of challenge. Admittedly, the petitioner is on merit at S.No. 1 should have been permitted to pick up the rank of Lt. Gen.But for this policy he is at S.No. 3 of the list and he would pick upthe rank of Lt. Gen. only on 01.07.2014 which is the date whenhe would have retired. Therefore, he loses out his right of promotionBon account of faulty policy being followed…”

5. The appeal against the said order was dismissed by this Courtobserving that the policy is quite ambiguous but the cause of justice isbest sub-served if the respondent is conferred with the rank of LieutenantGeneral w.e.f. May 1, 2014 but no arrears shall be paid.

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6. On the other hand, the argument of learned counsel for therespondents is that the promotion policy is not “merit-cum-seniority” asargued by the appellant but is a policy which contemplates that merit listof officers is prepared from amongst the candidates in the zone ofconsideration on the basis of total marks obtained after adding AR MarksDand Board Marks. The names of the officers will be rearranged in orderof seniority at the second stage of determining the suitability of theofficers for promotion. The right of promotion is in terms of policy alone.Therefore, if the policy contemplates a particular procedure for promotion,the promotion can be effected only in such a manner and in no otherEmanner. It is also argued that the appellant was aware of the policy andhas participated in the promotion process, therefore, after participatingin the selection process and after remaining unsuccessful, he is estoppedto challenge the policy under which his name was considered forpromotion to the post of Air Vice Marshal.

F7. A consolidated Promotion Policy was circulated on February20, 2008 as the existing policy for promotion based upon “seniority-cum-fitness” was found to have resulted in the older age profile for the officersbeing promoted to the higher ranks. The requirement was felt to formalizethe norms and introduce a merit-based system for promotion at seniorlevels. The norms and criteria for promotion to the rank of Air MarshalGand No.1 Promotion Board for promotion of Air Commodore and GroupCaptains to the ranks of Air Vice Marshal and Air Commodore werefixed in such policy. The officer who fulfils the qualifying service and iseligible in terms of criteria framed, the merit list is prepared on the basisof AR Marks; Board Marks and on the basis of numerical gradings ofHavailable Annual Confidential Reports during last ten years. The Board Marks are the sum total of marks given by each member present in theBoard meeting on the scale of 05.

8. The relevant clauses from the Policy dated February 20, 2008read as under:

“11. Zone of consideration. (a) Zone of consideration will be 3times the number of vacancies occurring. However, if Zone ofConsideration extends to the next course then all officers whohave retained their seniority from that course would be considered.

(b) All the second and third timers will necessarily form part ofzone of consideration, irrespective of the number of vacancies.

(c) In cases where available offices in any branch from whichpromotions are to be made is less than the stipulate zoneconsideration of 3 times, the actual number of officers availablewill form the zone of consideration.

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13. Eligibility. An officer should have at least one appraisal reportin the rank held by him at the time of his consideration forpromotion.

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15. Qualifying Service. The minimum qualifying service in therank, for promotion to the ranks of Air Marshal, AVMs and AirCmdes as on 31 March of the year preceding the promotion yearfor which Board is conducted, will be as follows:- (a) AVM1 year(b) Air Cmde1 year(c) Gp Capt2 years Exceptions in qualifying service may be made due to any servicereasons. Such exceptions will be required to be authorized by theCAS.

16. Preparation of Merit List. Merit list will be prepared on thebasis of ‘AR Marks’ and ‘Board Marks’ with weightage of 95.05respectively. In the case of promotion to the rank of Air Marshalaverage of numerical gradings of the available ARs during lastfive years will be taken into account to determine the AR marks.

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SUPREME COURT REPORTS

AFor promotion to the ranks of Air Cmde and AVMs, average ofnumerical gradings of available ARs during last ten years will betaken into consideration. ‘Board Marks’ will be sum total of marksgiven by each member present in the Board meeting on the scaleof 05….”

B17. Overall Merit. A merit list of officers considered by the Boardwill be prepared on the basis of total marks obtained in AR Marksand Board Marks. An illustration to demonstrate the actualcomputation of an officer’s marks is placed as Annexure-I to thispaper.

CA Select List of the officers will be prepared from the MeritList. The Select List will contain the names of the officer restrictedto the number of forecast vacancies and rearranged in the orderof seniority. The officers from the list will be promoted in thatorder.

DIn case of any additional vacancy/vacancies (unforeseen or ex-cadre) arising during the promotion year, these should be added tothe forecast vacancies for the next promotion year and thePromotion Board for the next promotion year should beappropriately advanced. The zone of consideration will be asprovided in para 11 above. Therefore, there will be no “SelectEReserve List”.

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22. The recommendations of the Promotion Boards will beforwarded to Min of Defence for their approval. The promotionsFwill take effect from the Select List in the order of seniority againsta suitable vacancy arising in turn.

23. Actual promotion will be subject to the officer’s maintainingcontinuity in performance, medical fitness and availability of asuitable vacancy in his turn.”

G9. The validity of such Policy has been upheld by the Tribunalrelying upon Division Bench judgment of High Court of Delhi in AirCmde Randhir Pratap v. Union of India & Ors.[5]. The Tribunal reliedupon Hardev Singh v. Union of India & Anr.[6] to hold that no employee 5 Writ Petition (C) No. 18935 of 2006 decided on August 24, 2007H6 (2011) 10 SCC 121

has a right to get promotion but only a right to be considered for promotion.The Tribunal found that the Promotion Policy is based on the principle of“seniority-cum-merit” and not “merit-cum-seniority” as the ultimatepromotions are based on seniority. This Court in Hardev Singh held asunder:- “25. In our opinion, it is always open to an employer to change itspolicy in relation to giving promotion to the employees. This Courtwould normally not interfere in such policy decisions. We wouldlike to quote the decision of this Court in Virender S. Hooda v.State of Haryana [(1999) 3 SCC 696 : 1999 SCC (L&S) 824]where this Court had held in para 4 of the judgment that: (SCC p.699)

“4. … When a policy has been declared by the State as to themanner of filling up the post and that policy is declared in termsof rules and instructions issued to the Public ServiceCommission from time to time and so long as these instructionsare not contrary to the rules, the respondents ought to followthe same.”

26. Similarly, in Balco Employees’ Union v. Union of India[(2002) 2 SCC 333] it has been held that a court cannot strikedown a policy decision taken by the Government merely becauseit feels that another policy would have been fairer or wiser ormore scientific or logical. It is not within the domain of the courtto weigh the pros and cons of the policy or to test the degree of itsbeneficial or equitable disposition.

27. For the aforestated reasons, we are of the view that no injusticehad been caused to the appellant as his case was duly consideredfor promotion to the rank of Lieutenant-General by the SSB twicebut as other officers were found better than the appellant, hecould not be promoted. In the circumstances, we do not find anysubstance in the appeal and, therefore, the appeal deserves to bedismissed.”

10. The Policy dated February 20, 2008 does not use the expressionthat the promotion is based either on the principle of “merit-cum-seniority”or “seniority-cum-merit”. Therefore, the entire policy is required to beexamined as to what is the criteria for promotion rather than using theexpression either “merit-cum-seniority” or “seniority-cum-merit”.

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ATherefore, the first and the foremost question is as to whether thepromotion to the rank of Air Vice Marshal is based upon the generalprinciple of “merit-cum-seniority” or “seniority-cum-merit” or that thepromotions are to be made on the basis of the eligibility criteria, procedureand on the basis of seniority after determining merit of the candidatesfalling in the zone of consideration.B

11. The Army Order circulating Promotion Policy on February20, 2008 is statutory in nature. The appellant has challenged such policyinter alia on the ground that the policy is based upon “merit-cum-seniority” but the condition in the policy promoting the officers on thebasis of seniority after short listing the officers is contrary to the principlesCof promotion based on “merit-cum-seniority”. Therefore, clause 17 ofthe Promotion Policy is contrary to established principles of law pertainingto promotion on the basis of “merit-cum-seniority” and, thus, notsustainable.

12. A three Judge Bench of this Court in B.V. Sivaiah & Ors. v.DK. Addanki Babu & Ors.[7]while examining the principle seniority-cum-merit held as under:

“10. On the other hand, as between the two principles of seniorityand merit, the criterion of “seniority-cum-merit” lays greateremphasis on seniority. In State of Mysore v. Syed MahmoodE[AIR 1968 SC 1113 : (1968) 3 SCR 363 : (1970) 1 LLJ 370] whileconsidering Rule 4(3)(b) of the Mysore State Civil ServicesGeneral Recruitment Rules, 1957 which required promotion to bemade by selection on the basis of seniority-cum-merit, this Courthas observed that the Rule required promotion to be made byFselection on the basis of “seniority subject to the fitness of thecandidate to discharge the duties of the post from among personseligible for promotion”. It was pointed out that where the promotionis based on seniority-cum-merit, the officer cannot claim promotionas a matter of right by virtue of his seniority alone and if he isfound unfit to discharge the duties of the higher post, he may beGpassed over and an officer junior to him may be promoted.”

13. In State of Mysore & Anr. v. G.B. Purohit & Ors.[8], thisCourt held that a right to be considered for promotion, is a condition of 7 (1998) 6 SCC 720H8 (1967) SLR 753

service but mere chances of promotion are not. The rule which merelyaffects the chances of promotion cannot be regarded as varying acondition of service. The said judgment was quoted with approval inlater judgment reported as Ramchandra Shankar Deodhar & Ors. v.State of Maharashtra & Ors.[9],wherein this Court held as under:

“15…..All that happened as a result of making promotions to theposts of Deputy Collectors division wise and limiting suchpromotions to 50 per cent of the total number of vacancies in theposts of Deputy Collector was to reduce the chances of promotionavailable to the petitioners. It is now well settled by the decisionof this Court in State of Mysore v. G.B. Purohit [CA No. 2281 of1965, decided on January 25, 1967] that though a right to beconsidered for promotion is a condition of service, mere chancesof promotion are not. A rule which merely affects chances ofpromotion cannot be regarded as varying a condition of service.In Purohit’s case the district wise seniority of sanitary inspectorswas changed to State wise seniority, and as a result of this changethe respondents went down in seniority and became very junior.This, it was urged, affected their chances of promotion whichwere protected under the proviso to Section 115, sub-section (7).This contention was negatived and Wanchoo, J. (as he then was),speaking on behalf of this Court observed: “It is said on behalf ofthe respondents that as their chances of promotion have beenaffected their conditions of service have been changed to theirdisadvantage. We see no force in this argument because chancesof promotion are not conditions of service…..”

14. In Dwarka Prasad & Ors. v. Union of India & Ors.[10], theargument examined was that the promotion opportunities have to beprovided in ratio with the strength of the feeder cadre. It was held asunder:

“16. Fixation of quotas or different avenues and ladders forpromotion in favour of various categories of posts in feeder cadresbased upon the structure and pattern of the Department is aprerogative of the employer, mainly pertaining to the policy-makingfield. The relevant considerations in fixing a particular quota for a 9 (1974) 1 SCC 317

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particular post are various such as the cadre strength in the feederquota, suitability more or less of the holders in the feeder post,their nature of duties, experience and the channels of promotionavailable to the holders of posts in the feeder cadres. Mostimportant of them all is the requirement of the promoting authorityfor manning the post on promotion with suitable candidates. Thus,fixation of quota for various categories of posts in the feeder cadresrequires consideration of various relevant factors, a few amongstthem have been mentioned for illustration. Mere cadre strengthof a particular post in the feeder cadre cannot be a sole criterionor basis to claim parity in the chances of promotion by variousholders of posts in feeder categories.”

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15. In A. Satyanarayana & Ors. v. S. Purushotham &Ors.[11],this Court held that the power of the State to fix quota for promotioncannot be said to be violative of the Constitutional Scheme of equality ascontemplated under Articles 14 and 16 of the Constitution of India.TheDCourt held as under:

“23. We, however, are of the opinion that the validity or otherwiseof a quota rule cannot be determined on surmises and conjectures.Whereas the power of the State to fix the quota keeping in viewthe fact situation obtaining in a given case must be conceded, theEsame, however, cannot be violative of the constitutional schemeof equality as contemplated under Articles 14 and 16 of theConstitution of India. There cannot be any doubt whatsoever thata policy decision and, in particular, legislative policy should notordinarily be interfered with and the superior courts, whileFexercising their power of judicial review, shall not consider as towhether such policy decision has been taken mala fide or not. Butwhere a policy decision as reflected in a statutory rule pertains tothe field of subordinate legislation, indisputably, the same wouldbe amenable to judicial review, inter alia, on the ground of beingviolative of Article 14 of the Constitution of India. (See Vasu DevGSingh v. Union of India [(2006) 12 SCC 753 : (2006) 11 Scale108] and State of Kerala v. Unni [(2007) 2 SCC 365].)

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25. While saying so, we are not unmindful of the legal principlethat nobody has a right to be promoted; his right being confined toright to be considered therefor.

26. Similarly, the power of the State to take a policy decision as aresult whereof an employee’s chance of promotion is diminishedcannot be a subject-matter of judicial review as no legal right isinfringed thereby.”

16. In A.P. Public Service Commission v. Baloji Badhavath &Ors.[12],this Court held that the Court will not ordinarily interfere with theprocess of determining merit unless the procedure adopted by it is heldto be arbitrary or against known-principles of fair play. The Court heldas under:

“25. How the Commission would judge the merit of the candidatesis its function. Unless the procedure adopted by it is held to bearbitrary or against the known principles of fair play, the superiorcourts would not ordinarily interfere therewith. The State framedRules in the light of the decision of the High Court in S. JafferSaheb [(1985) 2 APLJ 380]. Per se, it did not commit any illegality.The correctness of the said decision, as noticed hereinbefore, isnot in question having attained finality. The matter, however, wouldbe different if the said Rules per se are found to be violative ofArticle 16 of the Constitution of India. Nobody has anyfundamental right to be appointed in terms of Article 16 of theConstitution of India. It merely provides for a right to be consideredtherefor. A procedure evolved for laying down the mode andmanner for consideration of such a right can be interfered withonly when it is arbitrary, discriminatory or wholly unfair.”

17. In Rajendra Kumar Srivastava & Ors. v. Samyut KshetriyaGramin Bank & Ors.[13], this Court was examining two-stage processadopted by Bank - the first preparing list of candidates who secureminimum marks in the performance appraisal and interview, and thesecond promoting the candidates who secure the minimum marks, strictlyon the basis of seniority. It was held that such is seniority-cum-meritcriteria for promotion. The Court held as under:

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“13. Thus, it is clear that a process whereby eligible candidatespossessing the minimum necessary merit in the feeder posts isfirst ascertained and thereafter, promotions are made strictly inaccordance with seniority, from among those who possess theminimum necessary merit is recognised and accepted as complyingwith the principle of “seniority-cum-merit”. What would offendthe rule of seniority-cum-merit is a process where after assessingthe minimum necessary merit, promotions are made on the basisof merit (instead of seniority) from among the candidatespossessing the minimum necessary merit. If the criteria adoptedfor assessment of minimum necessary merit is bona fide and notunreasonable, it is not open to challenge, as being opposed to theprinciple of seniority-cum-merit. We accordingly hold thatprescribing minimum qualifying marks to ascertain the minimummerit necessary for discharging the functions of the higher post,is not violative of the concept of promotion by seniority-cum-merit.”

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18. In view of the principles governing the right of promotion asdelineated above, we find that the grievance of the appellant is in respectof lost chances of promotion inasmuch as he attained the age ofsuperannuation before the vacancy arose. Clauses 17 and 22 arecategorical that the select list of officers will be prepared from merit listEand rearranged in order of seniority. Thus, the final list of the candidatesfalling within the zone of consideration in terms of clause 11 and whoare eligible in terms of clause 13 is determined first by preparing themerit list on the basis of AR marks and Board marks. Thereafter, thenames of the officers found meritorious are to be rearranged in order ofseniority as per clauses 17 and 22 of the Promotion Policy. Thus, itFensures that the candidates falling within the zone of consideration areshort listed for promotion but ultimate promotion from amongst theselected candidates is on the basis of seniority. Such policy perse cannotbe said to be illegal, arbitrary and discriminatory so as to attract theviolation of either Article 14 or Article 16 of the Constitution.

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19. In Ajit Singh, referred to by learned counsel for the appellant,the Court held that equal opportunity contemplated by Article 14 of theConstitution means the right to be considered for promotion. If a personsatisfies the eligibility and zone criteria but is not considered for promotion,then there will be a clear infraction of his fundamental right to be H

considered for his promotion, which is his personal right. The rules andthe considerations contemplated promotion by “seniority-cum-merit”particularly in the light of reserved category candidates promoted at theroster points. It was held that in terms of Article 16, every employeeeligible for promotion or who comes within the zone of consideration,has a fundamental right to be considered for promotion but his right is ofconsideration alone. The Court held as under:

“22. … It has been held repeatedly by this Court that clause (1)of Article 16 is a facet of Article 14 and that it takes its roots fromArticle 14. The said clause particularises the generality in Article14 and identifies, in a constitutional sense “equality of opportunity”in matters of employment and appointment to any office underthe State. The word “employment” being wider, there is no disputethat it takes within its fold, the aspect of promotions to posts abovethe stage of initial level of recruitment. Article 16(1) provides toevery employee otherwise eligible for promotion or who comeswithin the zone of consideration, a fundamental right to be“considered” for promotion. Equal opportunity here means theright to be “considered” for promotion. If a person satisfies theeligibility and zone criteria but is not considered for promotion,then there will be a clear infraction of his fundamental right to be“considered” for promotion, which is his personal right….”

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27. In our opinion, the above view expressed in Ashok KumarGupta [(1997) 5 SCC 201 : 1997 SCC (L&S) 1299] and followedin Jagdish Lal [(1997) 6 SCC 538 : 1997 SCC (L&S) 1550] andother cases, if it is intended to lay down that the right guaranteedto employees for being “considered” for promotion according torelevant rules of recruitment by promotion (i.e. whether on thebasis of seniority or merit) is only a statutory right and not afundamental right, we cannot accept the proposition. We havealready stated earlier that the right to equal opportunity in thematter of promotion in the sense of a right to be “considered” forpromotion is indeed a fundamental right guaranteed under Article16(1) and this has never been doubted in any other case beforeAshok Kumar Gupta [(1997) 5 SCC 201 : 1997 SCC (L&S)1299] right from 1950.”

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20. In Major General Manoj Luthra, the Promotion Policy hasnot been struck down by this Court but in the facts of that case, in viewof superannuation of the officer, the benefit was ordered to be conferredto the respondent. Such is not a binding precedent as the merit of thepolicy has not been examined.

B21. The promotion to the post of Air Vice Marshal is regulated byCircular dated February 20, 2008, therefore, the promotion can be claimedonly in terms of eligibility and the norms fixed therein. Mere fact that theappellant could not be promoted on account of non-availability ofvacancies before his superannuation is not a ground on which thePromotion Policy can be struck down. The Promotion Policy can beCstruck down only if the policy has no reasonable nexus with the objectiveto be achieved and is discriminatory. The lack of vacancy is not a groundon the basis of which promotion policy can be struck down. Since thePromotion Policy is in two stages as in Rajendra Kumar Srivastavai.e. to shortlist the candidates on the basis of eligibility criteria and on theDbasis of the marks obtained in the Annual Confidential Report and themarks given by the Board, therefore, the applicability of principle ofseniority cannot be said to be arbitrary or irrational which may make thepolicy illegal and unsustainable.

22. The promotion has to be affected in terms of statutory rulesEand in absence thereof, as per the executive instructions. The policyprovides equal opportunities to the officers falling within the zone ofconsideration and subsequent promotion. Such policy is not discriminatoryin terms of Article 14 or denies lack of equal opportunity in terms ofArticle 16. The promotion to the post of Air Vice Marshal is governedby the policy of Air Force which is applicable to all officers falling in theFzone of consideration. Therefore, the Promotion Policy cannot be saidto be illegal, arbitrary and irrational warranting interference in exerciseof power of judicial review.

23. Apart from the policy, we also find that the appellant is estoppedto challenge the policy after participating in the selection process on theGbasis of such policy. It has been so held by this Court in Madan Lal &Ors. v. State of J & K & Ors.[14]:

“10. Therefore, the result of the interview test on merits cannotbe successfully challenged by a candidate who takes a chance to H14 (1995) 3 SCC 486

get selected at the said interview and who ultimately finds himselfto be unsuccessful. It is also to be kept in view that in this petitionwe cannot sit as a court of appeal and try to reassess the relativemerits of the candidates concerned who had been assessed at theoral interview nor can the petitioners successfully urge before usthat they were given less marks though their performance wasbetter. It is for the Interview Committee which amongst othersconsisted of a sitting High Court Judge to judge the relative meritsof the candidates who were orally interviewed, in the light of theguidelines laid down by the relevant rules governing suchinterviews. Therefore, the assessment on merits as made by suchan expert committee cannot be brought in challenge only on theground that the assessment was not proper or justified as thatwould be the function of an appellate body and we are certainlynot acting as a court of appeal over the assessment made by suchan expert committee.”

24. Ina judgment reported as Ashok Kumar v. State of Bihar[15],athree Judge Benchheld that the appellants were estopped from turningaround and challenging the selection once they were declaredunsuccessful. The Court held as under:- “17. In Ramesh Chandra Shah v. Anil Joshi [Ramesh ChandraShah v. Anil Joshi, (2013) 11 SCC 309 : (2011) 3 SCC (L&S)129], candidates who were competing for the post ofPhysiotherapist in the State of Uttarakhand participated in a writtenexamination held in pursuance of an advertisement. This Courtheld that if they had cleared the test, the respondents would nothave raised any objection to the selection process or to themethodology adopted. Having taken a chance of selection, it washeld that the respondents were disentitled to seek relief underArticle 226 and would be deemed to have waived their right tochallenge the advertisement or the procedure of selection. ThisCourt held that: (SCC p. 318, para 18)

“18. It is settled law that a person who consciously takes partin the process of selection cannot, thereafter, turn around andquestion the method of selection and its outcome.”

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18. In Chandigarh Admn. v. Jasmine Kaur [Chandigarh Admn.v. Jasmine Kaur, (2014) 10 SCC 521 : 6 SCEC 745] , it was heldthat a candidate who takes a calculated risk or chance by subjectinghimself or herself to the selection process cannot turn around andcomplain that the process of selection was unfair after knowingof his or her non-selection. In Pradeep Kumar Rai v. DineshKumar Pandey [Pradeep Kumar Rai v. Dinesh Kumar Pandey,(2015) 11 SCC 493 : (2015) 3 SCC (L&S) 274], this Court heldthat: (SCC p. 500, para 17)

“17. Moreover, we would concur with the Division Bench onone more point that the appellants had participated in the processof interview and not challenged it till the results were declared.There was a gap of almost four months between the interviewand declaration of result. However, the appellants did notchallenge it at that time. This, it appears that only when theappellants found themselves to be unsuccessful, they challengedthe interview. This cannot be allowed. The candidates cannotapprobate and reprobate at the same time. Either the candidatesshould not have participated in the interview and challengedthe procedure or they should have challenged immediately afterthe interviews were conducted.”

This principle has been reiterated in a recent judgment in MadrasInstitute of Development Studies v. K. Sivasubramaniyan[Madras Institute of Development Studies v. K.Sivasubramaniyan, (2016) 1 SCC 454 : (2016) 1 SCC (L&S)164 : 7 SCEC 462] .

19. In the present case, regard must be had to the fact that theappellants were clearly on notice, when the fresh selection processtook place that written examination would carry ninety marks andthe interview, ten marks. The appellants participated in the selectionprocess. Moreover, two other considerations weigh in balance.The High Court noted in the impugned judgment [Anurag Vermav. State of Bihar, 2011 SCC OnLine Pat 1289.] that theinterpretation of Rule 6 was not free from vagueness. There was,in other words, no glaring or patent illegality in the process adoptedby the High Court. There was an element of vagueness aboutwhether Rule 6 which dealt with promotion merely incorporatedthe requirement of an examination provided in Rule 5 for direct AIR COMMODORE NAVEEN JAIN v. UNION OF INDIA[HEMANT GUPTA, J.]

recruitment to Class III posts or whether the marks and qualifyingmarks were also incorporated. Moreover, no prejudice wasestablished to have been caused to the appellants by the 90:10allocation.”

25. In view thereof, we do not find that the policy circulated onFebruary 20, 2008 suffers from any illegality which was rightly notinterfered with by the learned Tribunal. Thus, the appeal is dismissed.

Devika Gujral

Appeal dismissed.

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