Supreme Court of India
AIR COMMODORE NAVEEN JAINversusUNION OF INDIA & ORS.
- Citation
- 2019 INSC 1120
- Decided
- 3 October 2019
- Disposal
- Dismissed
- Bench
- L NAGESWARA RAO
Holding
The Promotion Policy is a valid seniority‑cum‑merit scheme, not violative of Articles 14 or 16, and the appellant’s grievance cannot overturn it.
Summary
Air Commodore Naveen Jain, along with nine other officers, was considered for promotion to Air Vice Marshal. Although he topped the merit list, he was third in seniority on the select list and the vacancies arose after his superannuation, so he was not promoted. He challenged the Air Force Promotion Policy dated 20 February 2008, alleging it violated Articles 14 and 16 by favouring seniority over merit and that the lack of vacancy before his retirement should not bar his promotion. The Supreme Court held that the policy, which first prepares a merit list and then rearranges it by seniority, is a lawful "seniority‑cum‑merit" scheme and does not infringe constitutional equality provisions. The Court also ruled that the mere absence of a vacancy before superannuation is not a ground to strike down the policy and that the appellant is estopped from contesting a policy he knowingly participated in. Consequently, the appeal was dismissed.
Issues considered
- The validity of the Air Force Promotion Policy (Feb 20, 2008) under Articles 14 and 16 of the Constitution.
- Whether the policy’s two‑stage process (merit list followed by seniority rearrangement) is arbitrary or discriminatory.
- Whether an officer can claim promotion when no vacancy arises before his superannuation.
- Whether the appellant is estopped from challenging the policy after participating in the selection process.
Legislation cited
- Armed Forces Tribunal Act, 2007s. 31(1)
Subjects
promotion policyseniority‑cum‑meritmerit‑cum‑seniorityArmed Forces TribunalArticle 14Article 16judicial reviewsuperannuationvacancyAir Forceeligibility criteria
Judgment
[2019] 13 S.C.R. 241 241
AIR COMMODORE NAVEEN JAIN A
v.
UNION OF INDIA & ORS.
(Civil Appeal No. 3019 of 2017)
OCTOBER 03, 2019 B
[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
Armed Forces Tribunal Act, 2007: Promotion policy – Criteria
– Merit-cum-seniority or Seniority-cum-merit – Appellant along
with nine other officers were considered for promotion against five
C
vacancies in the rank of Air Vice Marshal – Appellant could not be
promoted though he was first in the merit list in view of the fact that
he was placed at serial no.3 in the seniority in the select list of four
candidates – The first officer on the select list was promoted to the
rank of Air Vice Marshal against the first available vacancy
whereas, next two vacancies arose after the appellant attained the D
age of superannuation – Since there was no post available for his
promotion prior to his superannuation, he was not promoted –
Appellant filed Original Application (OA) before the Tribunal
claiming promotion to the rank of Air Vice Marshal – Grievance of
appellant was in respect of lost chances of promotion inasmuch as
E
he attained the age of superannuation before the vacancy arose –
Tribunal dismissed OA – Hence instant appeal – Held: Clauses 17
and 22 of Promotion Policy dated February 20, 2008 are categorical
that the select list of officers will be prepared from merit list and
rearranged in order of seniority – Thus, the final list of the
candidates falling within the zone of consideration in terms of clause F
11 and who are eligible in terms of clause 13 is determined first by
preparing the merit list on the basis of AR marks and Board marks
– Thereafter, the names of the officers found meritorious are to be
rearranged in order of seniority – Thus, it ensures that the candidates
falling within the zone of consideration are short listed for promotion
G
but ultimate promotion from amongst the selected candidates is on
the basis of seniority – Such policy per se cannot be said to be
illegal, arbitrary and discriminatory so as to attract the violation of
either Art.14 or Art.16 of the Constitution – Tribunal was right in
not interfering with the said Policy – Constitution of India – Arts.14
and 16 – Judicial review. H
241
242 SUPREME COURT REPORTS [2019] 13 S.C.R.
A Service law: Promotion Policy – Judicial review of – The
Promotion Policy can be struck down only if the policy has no
reasonable nexus with the objective to be achieved and is
discriminatory – The lack of vacancy is not a ground on the basis
of which promotion policy can be struck down – In the instant case,
mere fact that the appellant could not be promoted on account of
B
non-availability of vacancies before his superannuation is not a
ground on which the Promotion Policy can be struck down –
Administrative law.
Dismissing the appeal, the Court
C HELD: 1. The Policy dated February 20, 2008 does not
use the expression that the promotion is based either on the
principle of “merit-cum-seniority” or “seniority-cum-merit”.
Therefore, the entire policy is required to be examined as to
what is the criteria for promotion rather than using the expression
either “merit-cum-seniority” or “seniority-cum-merit”. Clauses
D 17 and 22 are categorical that the select list of officers will be
prepared from merit list and rearranged in order of seniority.
Thus, the final list of the candidates falling within the zone of
consideration in terms of clause 11 and who are eligible in terms
of clause 13 is determined first by preparing the merit list on the
E basis of AR marks and Board marks. Thereafter, the names of
the officers found meritorious are to be rearranged in order of
seniority as per clauses 17 and 22 of the Promotion Policy. Such
policy per se cannot be said to be illegal, arbitrary and
discriminatory so as to attract the violation of either Article 14 or
Article 16 of the Constitution. [Paras 10, 18][249-G-H; 254-E-G]
F
2. The promotion to the post of Air Vice Marshal is
regulated by Circular dated February 20, 2008, therefore, the
promotion can be claimed only in terms of eligibility and the norms
fixed therein. Mere fact that the appellant could not be promoted
on account of non-availability of vacancies before his
G superannuation is not a ground on which the Promotion Policy
can be struck down. Since the Promotion Policy is in two stages
i.e. to shortlist the candidates on the basis of eligibility criteria
and on the basis of the marks obtained in the Annual Confidential
Report and the marks given by the Board, therefore, the
H applicability of principle of seniority cannot be said to be arbitrary
AIR COMMODORE NAVEEN JAIN v. UNION OF INDIA 243
or irrational which may make the policy illegal and unsustainable. A
[Para 21][256-B-D]
3. The promotion has to be affected in terms of statutory
rules and in absence thereof, as per the executive instructions.
The policy provides equal opportunities to the officers falling
within the zone of consideration and subsequent promotion. Such B
policy is not discriminatory in terms of Article 14 or denies lack
of equal opportunity in terms of Article 16. The promotion to the
post of Air Vice Marshal is governed by the policy of Air Force
which is applicable to all officers falling in the zone of consideration.
Apart from the policy, the appellant is estopped to challenge the
policy after participating in the selection process on the basis of C
such policy. [Paras 22, 23][256-E-F]
Air Cmde Randhir Pratap v. Union of India & Ors. Writ
Petition (C) No. 18935 of 2006 decided on August
24, 2007; Hardev Singh v. Union of India & Anr. (2011)
10 SCC 121; B.V. Sivaiah & Ors. v. K. Addanki Babu D
& Ors. (1998) 6 SCC 720 : [1998] 3 SCR 782 ; State
of Mysore & Anr. v. G.B. Purohit & Ors. (1967) SLR
753; Ramchandra Shankar Deodhar & Ors. v. State of
Maharashtra & Ors. (1974) 1 SCC 317 : [1974] 2 SCR
216; Dwarka Prasad & Ors. v. Union of India & Ors. E
(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 Service
Commission v. Baloji Badhavath & Ors. (2009) 5 SCC
1 : [2009] 5 SCR 688; Rajendra Kumar Srivastava &
Ors. v. Samyut Kshetriya Gramin Bank & Ors. (2010) 1 F
SCC 335 : [2009] 15 SCR 936; Madan Lal & Ors. v.
State of J & K & Ors. (1995) 3 SCC 486 : [1995] 1
SCR 908; Ashok Kumar v. State of Bihar (2017) 4 SCC
357 : [2016] 8 SCR 815 – relied on.
Union of India & Anr. v. Major General Manoj Luthra & G
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 SCC
209 : [1999] 2 Suppl. SCR 521 – referred to
H
244 SUPREME COURT REPORTS [2019] 13 S.C.R.
A Case Law Reference
[1999] 2 Suppl. SCR 521 referred to Para 4
(2011) 10 SCC 121 relied on Para 9
[1998] 3 SCR 782 relied on Para 12
B (1967) SLR 753 relied on Para 13
[1974] 2 SCR 216 relied on Para 13
[2003] 1 Suppl. SCR 784 relied on Para 14
[2008] 6 SCR 1055 relied on Para 15
C
[2009] 5 SCR 688 relied on Para 16
[2009] 15 SCR 936 relied on Para 17
[1995] 1 SCR 908 relied on Para 23
[2016] 8 SCR 815 relied on Para 25
D
CIVIL APPELLATE JURISDICTION: Civil Appeal No.3019 of
2017.
From the Judgment dated 09.03.2016 of the Armed Forces
Tribunal, Principal Bench, New Delhi in O.A. No.410/2015.
E Sridhar Potaraju, Sudhanshu Pandey, Ms. Sweta Parihar,
Ms. Shiwani Tushir, Abhishek R. Shukla, Ms. G. Usha Sri, T. Vishnu
Menon, Advs. for the Appellant.
Nachiketa Joshi, Saurabh Mishra, Arvind Kumar Sharma, Mukesh
Kumar 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 the
Armed Forces Tribunal, Principal Bench, New Delhi 1 on March 9, 2016
G whereby, the Original Application filed by the appellant was dismissed
and also an order of the same date declining leave to appeal to this Court
under Section 31(1) of the Armed Forces Tribunal Act, 2007 2.
1
for short, ‘Tribunal’
H 2
for short, ‘Act’
AIR COMMODORE NAVEEN JAIN v. UNION OF INDIA 245
[HEMANT GUPTA, J.]
2. The appellant was commissioned in the Administrative Branch A
of the Indian Air Force on December 11, 1981. He was promoted to the
rank of Air Commodore in the year 2011. He along with nine other
officers were considered for promotion against five vacancies in the
rank of Air Vice Marshal. The appellant could not be promoted though
he was first in the merit list in view of the fact that he was placed at Sl.
B
No. 3 in seniority in the select list of four officers. The first officer on
the select list was promoted to the rank of Air Vice Marshal on May 11,
2015 against the first available vacancy whereas, next two vacancies
arose on August 1, 2015 and September 1, 2015 i.e. after the appellant
attained the age of superannuation on June 30, 2015. Since, there was
no post available for his promotion prior to his superannuation, he was C
not promoted to the rank of Air Vice Marshal.
3. The appellant invoked the jurisdiction of the Tribunal claiming
promotion to the rank of Air Vice Marshal selected by Promotion Board
in order of merit and not in the order of seniority challenging the clause
in the Promotion Policy dated February 20, 2008 that the merit list D
prepared by the Board has to be rearranged in the order of seniority.
4. The argument of learned counsel for the appellant is that
promotion to the rank of Air Vice Marshal is on the principle of “merit-
cum-seniority”. Therefore, seniority cannot be the guiding principle for
promotion once the appellant was found to be meritorious by the Promotion E
Board. In support of his argument, learned counsel for the appellant
relied upon judgment of this Court in Ajit Singh & Ors. (II) v. State of
Punjab & Ors.3 and also to an order passed by this Court in Union of
India & Anr. v. Major General Manoj Luthra & Ors. 4 whereby, the
order of the Tribunal was affirmed while examining the policy for
promotion to the post of Major General in the Armed Forces Medical F
Services. The argument is that similar policy is applicable for promotion
to the post of Air Vice Marshal, therefore, in view of the affirmance of
the judgment of the Tribunal by this Court, such policy cannot be relied
upon. The Tribunal in Major General Manoj Luthra, held as under:
“12. …Once selection is made on the basis of merit and officers G
are graded in the select list based on that merit following the policy
of seniority thereafter is contrary to the provisions of Article 14
3
(1999) 7 SCC 209
4
Civil Appeal No. 9390 of 2014 decided on September 29, 2015 H
246 SUPREME COURT REPORTS [2019] 13 S.C.R.
A and 16. We are handicapped on this issue as policy is not subject
matter 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 up
the rank of Lt. Gen. only on 01.07.2014 which is the date when
he would have retired. Therefore, he loses out his right of promotion
B
on account of faulty policy being followed…”
5. The appeal against the said order was dismissed by this Court
observing that the policy is quite ambiguous but the cause of justice is
best sub-served if the respondent is conferred with the rank of Lieutenant
General w.e.f. May 1, 2014 but no arrears shall be paid.
C
6. On the other hand, the argument of learned counsel for the
respondents is that the promotion policy is not “merit-cum-seniority” as
argued by the appellant but is a policy which contemplates that merit list
of officers is prepared from amongst the candidates in the zone of
consideration on the basis of total marks obtained after adding AR Marks
D and Board Marks. The names of the officers will be rearranged in order
of seniority at the second stage of determining the suitability of the
officers 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 other
E manner. It is also argued that the appellant was aware of the policy and
has participated in the promotion process, therefore, after participating
in the selection process and after remaining unsuccessful, he is estopped
to challenge the policy under which his name was considered for
promotion to the post of Air Vice Marshal.
F 7. A consolidated Promotion Policy was circulated on February
20, 2008 as the existing policy for promotion based upon “seniority-cum-
fitness” was found to have resulted in the older age profile for the officers
being promoted to the higher ranks. The requirement was felt to formalize
the norms and introduce a merit-based system for promotion at senior
levels. The norms and criteria for promotion to the rank of Air Marshal
G and No.1 Promotion Board for promotion of Air Commodore and Group
Captains to the ranks of Air Vice Marshal and Air Commodore were
fixed in such policy. The officer who fulfils the qualifying service and is
eligible in terms of criteria framed, the merit list is prepared on the basis
of AR Marks; Board Marks and on the basis of numerical gradings of
H available Annual Confidential Reports during last ten years. The Board
AIR COMMODORE NAVEEN JAIN v. UNION OF INDIA 247
[HEMANT GUPTA, J.]
Marks are the sum total of marks given by each member present in the A
Board meeting on the scale of 05.
8. The relevant clauses from the Policy dated February 20, 2008
read as under:
“11. Zone of consideration. (a) Zone of consideration will be 3
times the number of vacancies occurring. However, if Zone of B
Consideration extends to the next course then all officers who
have retained their seniority from that course would be considered.
(b) All the second and third timers will necessarily form part of
zone of consideration, irrespective of the number of vacancies.
C
(c) In cases where available offices in any branch from which
promotions are to be made is less than the stipulate zone
consideration of 3 times, the actual number of officers available
will form the zone of consideration.
xx xx xx D
13. Eligibility. An officer should have at least one appraisal report
in the rank held by him at the time of his consideration for
promotion.
xx xx xx
15. Qualifying Service. The minimum qualifying service in the E
rank, for promotion to the ranks of Air Marshal, AVMs and Air
Cmdes as on 31 March of the year preceding the promotion year
for which Board is conducted, will be as follows:-
(a) AVM 1 year
F
(b) Air Cmde 1 year
(c) Gp Capt 2 years
Exceptions in qualifying service may be made due to any service
reasons. Such exceptions will be required to be authorized by the
CAS. G
16. Preparation of Merit List. Merit list will be prepared on the
basis of ‘AR Marks’ and ‘Board Marks’ with weightage of 95.05
respectively. In the case of promotion to the rank of Air Marshal
average of numerical gradings of the available ARs during last
five years will be taken into account to determine the AR marks. H
248 SUPREME COURT REPORTS [2019] 13 S.C.R.
A For promotion to the ranks of Air Cmde and AVMs, average of
numerical gradings of available ARs during last ten years will be
taken into consideration. ‘Board Marks’ will be sum total of marks
given by each member present in the Board meeting on the scale
of 05….”
B 17. Overall Merit. A merit list of officers considered by the Board
will be prepared on the basis of total marks obtained in AR Marks
and Board Marks. An illustration to demonstrate the actual
computation of an officer’s marks is placed as Annexure-I to this
paper.
C A Select List of the officers will be prepared from the Merit
List. The Select List will contain the names of the officer restricted
to the number of forecast vacancies and rearranged in the order
of seniority. The officers from the list will be promoted in that
order.
D In case of any additional vacancy/vacancies (unforeseen or ex-
cadre) arising during the promotion year, these should be added to
the forecast vacancies for the next promotion year and the
Promotion Board for the next promotion year should be
appropriately advanced. The zone of consideration will be as
provided in para 11 above. Therefore, there will be no “Select
E Reserve List”.
xx xx xx
22. The recommendations of the Promotion Boards will be
forwarded to Min of Defence for their approval. The promotions
F will take effect from the Select List in the order of seniority against
a suitable vacancy arising in turn.
23. Actual promotion will be subject to the officer’s maintaining
continuity in performance, medical fitness and availability of a
suitable vacancy in his turn.”
G 9. The validity of such Policy has been upheld by the Tribunal
relying upon Division Bench judgment of High Court of Delhi in Air
Cmde Randhir Pratap v. Union of India & Ors. 5. The Tribunal relied
upon 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, 2007
H 6
(2011) 10 SCC 121
AIR COMMODORE NAVEEN JAIN v. UNION OF INDIA 249
[HEMANT GUPTA, J.]
has a right to get promotion but only a right to be considered for promotion. A
The Tribunal found that the Promotion Policy is based on the principle of
“seniority-cum-merit” and not “merit-cum-seniority” as the ultimate
promotions are based on seniority. This Court in Hardev Singh held as
under:-
“25. In our opinion, it is always open to an employer to change its B
policy in relation to giving promotion to the employees. This Court
would normally not interfere in such policy decisions. We would
like 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) C
“4. … When a policy has been declared by the State as to the
manner of filling up the post and that policy is declared in terms
of rules and instructions issued to the Public Service
Commission from time to time and so long as these instructions
are not contrary to the rules, the respondents ought to follow D
the same.”
26. Similarly, in Balco Employees’ Union v. Union of India
[(2002) 2 SCC 333] it has been held that a court cannot strike
down a policy decision taken by the Government merely because
it feels that another policy would have been fairer or wiser or E
more scientific or logical. It is not within the domain of the court
to weigh the pros and cons of the policy or to test the degree of its
beneficial or equitable disposition.
27. For the aforestated reasons, we are of the view that no injustice
had been caused to the appellant as his case was duly considered F
for promotion to the rank of Lieutenant-General by the SSB twice
but as other officers were found better than the appellant, he
could not be promoted. In the circumstances, we do not find any
substance in the appeal and, therefore, the appeal deserves to be
dismissed.” G
10. The Policy dated February 20, 2008 does not use the expression
that the promotion is based either on the principle of “merit-cum-seniority”
or “seniority-cum-merit”. Therefore, the entire policy is required to be
examined as to what is the criteria for promotion rather than using the
expression either “merit-cum-seniority” or “seniority-cum-merit”.
H
250 SUPREME COURT REPORTS [2019] 13 S.C.R.
A Therefore, the first and the foremost question is as to whether the
promotion to the rank of Air Vice Marshal is based upon the general
principle of “merit-cum-seniority” or “seniority-cum-merit” or that the
promotions are to be made on the basis of the eligibility criteria, procedure
and on the basis of seniority after determining merit of the candidates
falling in the zone of consideration.
B
11. The Army Order circulating Promotion Policy on February
20, 2008 is statutory in nature. The appellant has challenged such policy
inter alia on the ground that the policy is based upon “merit-cum-
seniority” but the condition in the policy promoting the officers on the
basis of seniority after short listing the officers is contrary to the principles
C of promotion based on “merit-cum-seniority”. Therefore, clause 17 of
the Promotion Policy is contrary to established principles of law pertaining
to promotion on the basis of “merit-cum-seniority” and, thus, not
sustainable.
12. A three Judge Bench of this Court in B.V. Sivaiah & Ors. v.
D K. Addanki Babu & Ors.7while examining the principle seniority-cum-
merit held as under:
“10. On the other hand, as between the two principles of seniority
and merit, the criterion of “seniority-cum-merit” lays greater
emphasis on seniority. In State of Mysore v. Syed Mahmood
E [AIR 1968 SC 1113 : (1968) 3 SCR 363 : (1970) 1 LLJ 370] while
considering Rule 4(3)(b) of the Mysore State Civil Services
General Recruitment Rules, 1957 which required promotion to be
made by selection on the basis of seniority-cum-merit, this Court
has observed that the Rule required promotion to be made by
F selection on the basis of “seniority subject to the fitness of the
candidate to discharge the duties of the post from among persons
eligible for promotion”. It was pointed out that where the promotion
is based on seniority-cum-merit, the officer cannot claim promotion
as a matter of right by virtue of his seniority alone and if he is
found unfit to discharge the duties of the higher post, he may be
G passed over and an officer junior to him may be promoted.”
13. In State of Mysore & Anr. v. G.B. Purohit & Ors.8, this
Court held that a right to be considered for promotion, is a condition of
7
(1998) 6 SCC 720
H 8
(1967) SLR 753
AIR COMMODORE NAVEEN JAIN v. UNION OF INDIA 251
[HEMANT GUPTA, J.]
service but mere chances of promotion are not. The rule which merely A
affects the chances of promotion cannot be regarded as varying a
condition of service. The said judgment was quoted with approval in
later 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 the B
posts of Deputy Collectors division wise and limiting such
promotions to 50 per cent of the total number of vacancies in the
posts of Deputy Collector was to reduce the chances of promotion
available to the petitioners. It is now well settled by the decision
of this Court in State of Mysore v. G.B. Purohit [CA No. 2281 of
1965, decided on January 25, 1967] that though a right to be C
considered for promotion is a condition of service, mere chances
of promotion are not. A rule which merely affects chances of
promotion cannot be regarded as varying a condition of service.
In Purohit’s case the district wise seniority of sanitary inspectors
was changed to State wise seniority, and as a result of this change D
the respondents went down in seniority and became very junior.
This, it was urged, affected their chances of promotion which
were 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 of
the respondents that as their chances of promotion have been E
affected their conditions of service have been changed to their
disadvantage. We see no force in this argument because chances
of promotion are not conditions of service…..”
14. In Dwarka Prasad & Ors. v. Union of India & Ors.10, the
argument examined was that the promotion opportunities have to be F
provided in ratio with the strength of the feeder cadre. It was held as
under:
“16. Fixation of quotas or different avenues and ladders for
promotion in favour of various categories of posts in feeder cadres
based upon the structure and pattern of the Department is a G
prerogative of the employer, mainly pertaining to the policy-making
field. The relevant considerations in fixing a particular quota for a
9
(1974) 1 SCC 317
10
(2003) 6 SCC 535 H
252 SUPREME COURT REPORTS [2019] 13 S.C.R.
A particular post are various such as the cadre strength in the feeder
quota, suitability more or less of the holders in the feeder post,
their nature of duties, experience and the channels of promotion
available to the holders of posts in the feeder cadres. Most
important of them all is the requirement of the promoting authority
B for manning the post on promotion with suitable candidates. Thus,
fixation of quota for various categories of posts in the feeder cadres
requires consideration of various relevant factors, a few amongst
them have been mentioned for illustration. Mere cadre strength
of a particular post in the feeder cadre cannot be a sole criterion
or basis to claim parity in the chances of promotion by various
C holders of posts in feeder categories.”
15. In A. Satyanarayana & Ors. v. S. Purushotham &
Ors.11,this Court held that the power of the State to fix quota for promotion
cannot be said to be violative of the Constitutional Scheme of equality as
contemplated under Articles 14 and 16 of the Constitution of India.The
D Court held as under:
“23. We, however, are of the opinion that the validity or otherwise
of a quota rule cannot be determined on surmises and conjectures.
Whereas the power of the State to fix the quota keeping in view
the fact situation obtaining in a given case must be conceded, the
E same, however, cannot be violative of the constitutional scheme
of equality as contemplated under Articles 14 and 16 of the
Constitution of India. There cannot be any doubt whatsoever that
a policy decision and, in particular, legislative policy should not
ordinarily be interfered with and the superior courts, while
F exercising their power of judicial review, shall not consider as to
whether such policy decision has been taken mala fide or not. But
where a policy decision as reflected in a statutory rule pertains to
the field of subordinate legislation, indisputably, the same would
be amenable to judicial review, inter alia, on the ground of being
violative of Article 14 of the Constitution of India. (See Vasu Dev
G
Singh v. Union of India [(2006) 12 SCC 753 : (2006) 11 Scale
108] and State of Kerala v. Unni [(2007) 2 SCC 365].)
xxx xxx xxx
H 11
(2008) 5 SCC 416
AIR COMMODORE NAVEEN JAIN v. UNION OF INDIA 253
[HEMANT GUPTA, J.]
25. While saying so, we are not unmindful of the legal principle A
that nobody has a right to be promoted; his right being confined to
right to be considered therefor.
26. Similarly, the power of the State to take a policy decision as a
result whereof an employee’s chance of promotion is diminished
cannot be a subject-matter of judicial review as no legal right is B
infringed thereby.”
16. In A.P. Public Service Commission v. Baloji Badhavath &
Ors.12,this Court held that the Court will not ordinarily interfere with the
process of determining merit unless the procedure adopted by it is held
to be arbitrary or against known-principles of fair play. The Court held C
as under:
“25. How the Commission would judge the merit of the candidates
is its function. Unless the procedure adopted by it is held to be
arbitrary or against the known principles of fair play, the superior
courts would not ordinarily interfere therewith. The State framed D
Rules in the light of the decision of the High Court in S. Jaffer
Saheb [(1985) 2 APLJ 380]. Per se, it did not commit any illegality.
The correctness of the said decision, as noticed hereinbefore, is
not in question having attained finality. The matter, however, would
be different if the said Rules per se are found to be violative of
Article 16 of the Constitution of India. Nobody has any E
fundamental right to be appointed in terms of Article 16 of the
Constitution of India. It merely provides for a right to be considered
therefor. A procedure evolved for laying down the mode and
manner for consideration of such a right can be interfered with
only when it is arbitrary, discriminatory or wholly unfair.” F
17. In Rajendra Kumar Srivastava & Ors. v. Samyut Kshetriya
Gramin Bank & Ors. 13, this Court was examining two-stage process
adopted by Bank - the first preparing list of candidates who secure
minimum marks in the performance appraisal and interview, and the
second promoting the candidates who secure the minimum marks, strictly G
on the basis of seniority. It was held that such is seniority-cum-merit
criteria for promotion. The Court held as under:
12
(2009) 5 SCC 1
13
(2010) 1 SCC 335 H
254 SUPREME COURT REPORTS [2019] 13 S.C.R.
A “13. Thus, it is clear that a process whereby eligible candidates
possessing the minimum necessary merit in the feeder posts is
first ascertained and thereafter, promotions are made strictly in
accordance with seniority, from among those who possess the
minimum necessary merit is recognised and accepted as complying
B with the principle of “seniority-cum-merit”. What would offend
the rule of seniority-cum-merit is a process where after assessing
the minimum necessary merit, promotions are made on the basis
of merit (instead of seniority) from among the candidates
possessing the minimum necessary merit. If the criteria adopted
for assessment of minimum necessary merit is bona fide and not
C unreasonable, it is not open to challenge, as being opposed to the
principle of seniority-cum-merit. We accordingly hold that
prescribing minimum qualifying marks to ascertain the minimum
merit necessary for discharging the functions of the higher post,
is not violative of the concept of promotion by seniority-cum-merit.”
D 18. In view of the principles governing the right of promotion as
delineated above, we find that the grievance of the appellant is in respect
of lost chances of promotion inasmuch as he attained the age of
superannuation before the vacancy arose. Clauses 17 and 22 are
categorical that the select list of officers will be prepared from merit list
E and rearranged in order of seniority. Thus, the final list of the candidates
falling within the zone of consideration in terms of clause 11 and who
are eligible in terms of clause 13 is determined first by preparing the
merit list on the basis of AR marks and Board marks. Thereafter, the
names of the officers found meritorious are to be rearranged in order of
seniority as per clauses 17 and 22 of the Promotion Policy. Thus, it
F
ensures that the candidates falling within the zone of consideration are
short listed for promotion but ultimate promotion from amongst the
selected candidates is on the basis of seniority. Such policy perse cannot
be said to be illegal, arbitrary and discriminatory so as to attract the
violation of either Article 14 or Article 16 of the Constitution.
G
19. In Ajit Singh, referred to by learned counsel for the appellant,
the Court held that equal opportunity contemplated by Article 14 of the
Constitution means the right to be considered for promotion. If a person
satisfies 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
AIR COMMODORE NAVEEN JAIN v. UNION OF INDIA 255
[HEMANT GUPTA, J.]
considered for his promotion, which is his personal right. The rules and A
the considerations contemplated promotion by “seniority-cum-merit”
particularly in the light of reserved category candidates promoted at the
roster points. It was held that in terms of Article 16, every employee
eligible for promotion or who comes within the zone of consideration,
has a fundamental right to be considered for promotion but his right is of B
consideration 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 from
Article 14. The said clause particularises the generality in Article
14 and identifies, in a constitutional sense “equality of opportunity” C
in matters of employment and appointment to any office under
the State. The word “employment” being wider, there is no dispute
that it takes within its fold, the aspect of promotions to posts above
the stage of initial level of recruitment. Article 16(1) provides to
every employee otherwise eligible for promotion or who comes
within the zone of consideration, a fundamental right to be D
“considered” for promotion. Equal opportunity here means the
right to be “considered” for promotion. If a person satisfies the
eligibility 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….” E
xx xx xx
27. In our opinion, the above view expressed in Ashok Kumar
Gupta [(1997) 5 SCC 201 : 1997 SCC (L&S) 1299] and followed
in Jagdish Lal [(1997) 6 SCC 538 : 1997 SCC (L&S) 1550] and
other cases, if it is intended to lay down that the right guaranteed F
to employees for being “considered” for promotion according to
relevant rules of recruitment by promotion (i.e. whether on the
basis of seniority or merit) is only a statutory right and not a
fundamental right, we cannot accept the proposition. We have
already stated earlier that the right to equal opportunity in the G
matter of promotion in the sense of a right to be “considered” for
promotion is indeed a fundamental right guaranteed under Article
16(1) and this has never been doubted in any other case before
Ashok Kumar Gupta [(1997) 5 SCC 201 : 1997 SCC (L&S)
1299] right from 1950.”
H
256 SUPREME COURT REPORTS [2019] 13 S.C.R.
A 20. In Major General Manoj Luthra, the Promotion Policy has
not been struck down by this Court but in the facts of that case, in view
of superannuation of the officer, the benefit was ordered to be conferred
to the respondent. Such is not a binding precedent as the merit of the
policy has not been examined.
B 21. The promotion to the post of Air Vice Marshal is regulated by
Circular dated February 20, 2008, therefore, the promotion can be claimed
only in terms of eligibility and the norms fixed therein. Mere fact that the
appellant could not be promoted on account of non-availability of
vacancies before his superannuation is not a ground on which the
Promotion Policy can be struck down. The Promotion Policy can be
C struck down only if the policy has no reasonable nexus with the objective
to be achieved and is discriminatory. The lack of vacancy is not a ground
on the basis of which promotion policy can be struck down. Since the
Promotion Policy is in two stages as in Rajendra Kumar Srivastava
i.e. to shortlist the candidates on the basis of eligibility criteria and on the
D basis of the marks obtained in the Annual Confidential Report and the
marks given by the Board, therefore, the applicability of principle of
seniority cannot be said to be arbitrary or irrational which may make the
policy illegal and unsustainable.
22. The promotion has to be affected in terms of statutory rules
E and in absence thereof, as per the executive instructions. The policy
provides equal opportunities to the officers falling within the zone of
consideration and subsequent promotion. Such policy is not discriminatory
in terms of Article 14 or denies lack of equal opportunity in terms of
Article 16. The promotion to the post of Air Vice Marshal is governed
by the policy of Air Force which is applicable to all officers falling in the
F zone of consideration. Therefore, the Promotion Policy cannot be said
to be illegal, arbitrary and irrational warranting interference in exercise
of power of judicial review.
23. Apart from the policy, we also find that the appellant is estopped
to challenge the policy after participating in the selection process on the
G basis 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 cannot
be successfully challenged by a candidate who takes a chance to
H 14
(1995) 3 SCC 486
AIR COMMODORE NAVEEN JAIN v. UNION OF INDIA 257
[HEMANT GUPTA, J.]
get selected at the said interview and who ultimately finds himself A
to be unsuccessful. It is also to be kept in view that in this petition
we cannot sit as a court of appeal and try to reassess the relative
merits of the candidates concerned who had been assessed at the
oral interview nor can the petitioners successfully urge before us
that they were given less marks though their performance was B
better. It is for the Interview Committee which amongst others
consisted of a sitting High Court Judge to judge the relative merits
of the candidates who were orally interviewed, in the light of the
guidelines laid down by the relevant rules governing such
interviews. Therefore, the assessment on merits as made by such
an expert committee cannot be brought in challenge only on the C
ground that the assessment was not proper or justified as that
would be the function of an appellate body and we are certainly
not acting as a court of appeal over the assessment made by such
an expert committee.”
24. Ina judgment reported as Ashok Kumar v. State of Bihar15,a D
three Judge Benchheld that the appellants were estopped from turning
around and challenging the selection once they were declared
unsuccessful. The Court held as under:-
“17. In Ramesh Chandra Shah v. Anil Joshi [Ramesh Chandra
Shah v. Anil Joshi, (2013) 11 SCC 309 : (2011) 3 SCC (L&S) E
129], candidates who were competing for the post of
Physiotherapist in the State of Uttarakhand participated in a written
examination held in pursuance of an advertisement. This Court
held that if they had cleared the test, the respondents would not
have raised any objection to the selection process or to the F
methodology adopted. Having taken a chance of selection, it was
held that the respondents were disentitled to seek relief under
Article 226 and would be deemed to have waived their right to
challenge the advertisement or the procedure of selection. This
Court held that: (SCC p. 318, para 18)
G
“18. It is settled law that a person who consciously takes part
in the process of selection cannot, thereafter, turn around and
question the method of selection and its outcome.”
15
(2017) 4 SCC 357 H
258 SUPREME COURT REPORTS [2019] 13 S.C.R.
A 18. In Chandigarh Admn. v. Jasmine Kaur [Chandigarh Admn.
v. Jasmine Kaur, (2014) 10 SCC 521 : 6 SCEC 745] , it was held
that a candidate who takes a calculated risk or chance by subjecting
himself or herself to the selection process cannot turn around and
complain that the process of selection was unfair after knowing
of his or her non-selection. In Pradeep Kumar Rai v. Dinesh
B
Kumar Pandey [Pradeep Kumar Rai v. Dinesh Kumar Pandey,
(2015) 11 SCC 493 : (2015) 3 SCC (L&S) 274], this Court held
that: (SCC p. 500, para 17)
“17. Moreover, we would concur with the Division Bench on
one more point that the appellants had participated in the process
C of interview and not challenged it till the results were declared.
There was a gap of almost four months between the interview
and declaration of result. However, the appellants did not
challenge it at that time. This, it appears that only when the
appellants found themselves to be unsuccessful, they challenged
D the interview. This cannot be allowed. The candidates cannot
approbate and reprobate at the same time. Either the candidates
should not have participated in the interview and challenged
the procedure or they should have challenged immediately after
the interviews were conducted.”
E This principle has been reiterated in a recent judgment in Madras
Institute 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] .
F 19. In the present case, regard must be had to the fact that the
appellants were clearly on notice, when the fresh selection process
took place that written examination would carry ninety marks and
the interview, ten marks. The appellants participated in the selection
process. Moreover, two other considerations weigh in balance.
The High Court noted in the impugned judgment [Anurag Verma
G v. State of Bihar, 2011 SCC OnLine Pat 1289.] that the
interpretation of Rule 6 was not free from vagueness. There was,
in other words, no glaring or patent illegality in the process adopted
by the High Court. There was an element of vagueness about
whether Rule 6 which dealt with promotion merely incorporated
H the requirement of an examination provided in Rule 5 for direct
AIR COMMODORE NAVEEN JAIN v. UNION OF INDIA 259
[HEMANT GUPTA, J.]
recruitment to Class III posts or whether the marks and qualifying A
marks were also incorporated. Moreover, no prejudice was
established to have been caused to the appellants by the 90:10
allocation.”
25. In view thereof, we do not find that the policy circulated on
February 20, 2008 suffers from any illegality which was rightly not B
interfered with by the learned Tribunal. Thus, the appeal is dismissed.
Devika Gujral Appeal dismissed.
C
D
E
F
G
H
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