Back
SUPREME COURT OF INDIA
L. NAGESWARA RAO, HEMANT GUPTA, JJ.
Air Commodore Naveen Jain – Appellant
Versus
Union of India and Others – Respondents
Civil Appeal No. 3019 of 2017
Decided On : 03-10-2019
(a) Service law - Promotion - No employee has a right to get promotion - Right to be considered for promotion is a service condition - Mere chances of promotion are not - A rule merely affecting chances of promotion cannot be regarded as varying a condition of service. (Para 9, 13)
(b) Service law - Promotion policy - Instantly policy not using expression “merit-cum-seniority” or “seniority-cum-merit” - Promotions on basis of eligibility criteria, procedure and seniority after determining merit of the candidates falling in the zone of consideration - Not “merit-cum-seniority”. (Para 10, 11)
(c) Service law - Promotion policy - Clause 11, 13, 17, 22 - Select list of officers to be prepared from merit list and rearranged in order of seniority - Ensuring 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 per se cannot be said to be illegal, arbitrary and discriminatory. (Para 18)
(d) Service law - Promotion policy - Can be struck down only if it has no reasonable nexus with the objective to be achieved and is discriminatory - Promotion policy cannot struck down on ground of lack of vacancy - Instantly, Promotion Policy in two stages - To shortlist the candidates on basis of eligibility criteria, and on the basis of the marks obtained in the Annual Confidential Report and the marks given by the Board - Applicability of principle of seniority not arbitrary or irrational - Policy held not illegal and unsustainable. (Para 21, 22)
(e) Service law - Promotion - Appellant participating in promotion process being fully aware of it - Estopped from challenging the same on being unsuccessful. (Para 23)
Facts of the case:
The appellant was commissioned in the Administrative Branch 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 was 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 S. 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 not promoted to the rank of Air Vice Marshal.
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 prepared by the Board has to be rearranged in the order of seniority. This was dismissed by the tribunal.
Finding of the Court:
The promotion policy is not laible to be struck down.
Result: Appeal dismissed.
JUDGMENT :
HEMANT GUPTA, J.
1. The challenge in the present appeal is to an order passed by the Armed Forces Tribunal, Principal Bench, New Delhi [for short ‘Tribunal’] on March 9, 2016 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 [for short ‘Act’].
2. The appellant was commissioned in the Administrative Branch 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 S. 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 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 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 Board. In support of his argument, learned counsel for the appellant relied upon judgment of this Court in Ajit Singh and Others vs. State of Punjab and Others, (1999) 7 SCC 209 and also to an order passed by this Court in Union of India and Another vs. Major General Manoj Luthra and Others, Civil Appeal No. 9390 of 2014 decided on 29 September 2015 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 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 are graded in the select list based on that merit following the policy of seniority thereafter is contrary to the provisions of Article 14 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 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.
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
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
