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 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 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 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
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 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.
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 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
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
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 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]
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 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 applicability 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 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 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 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 & 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. (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 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 & 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
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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