REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3019 OF 2017

AIR COMMODORE NAVEEN JAIN .....APPELLANT(S)

VERSUS

UNION OF INDIA & ORS. .....RESPONDENT(S)

J U D G M E N T

HEMANT GUPTA, J.

1) The challenge in the present appeal is to an order passed by the

Armed Forces Tribunal,  Principal  Bench,  New Delhi1 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, 20072.

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

1  for short, ‘Tribunal’ 2  for short, ‘Act’

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that he was placed at Sl. 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 & 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

3  (1999) 7 SCC 209 4  Civil Appeal No. 9390 of 2014 decided on September 29, 2015

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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 in the zone of consideration on the basis of total

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marks  obtained  after  adding  AR  Marks  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 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.

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 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 available

Annual  Confidential  Reports  during  last  ten  years.   The  Board

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Marks are the sum total of marks given by each member present in

the 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 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)  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

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 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 (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.

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

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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.   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….”

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.

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.

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 Reserve List”.

xx xx xx

22.  The recommendations of the Promotion Boards will  be forwarded to Min of Defence for their approval.  The  promotions 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.”

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

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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  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  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 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)

“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 the same.”

26.  Similarly, in Balco Employees' Union v. Union of In- dia [(2002) 2 SCC 333] it  has been held that a court cannot strike down a policy decision taken by the Gov- ernment  merely  because  it  feels  that  another  policy would have been fairer or  wiser  or 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 for promotion to the rank of Lieutenant-General by the SSB twice but as other offi- cers 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 de- serves to be dismissed.”

5  Writ Petition (C) No. 18935 of 2006 decided on August 24, 2007 6  (2011) 10 SCC 121

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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”.   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.

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  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.  K.

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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 seniority and merit, the criterion of “seniority-cum- merit”  lays greater  emphasis on seniority.  In State  of Mysore v. Syed Mahmood [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  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 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

service but mere chances of promotion are not. The rule which

merely 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 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

7  (1998) 6 SCC 720 8   (1967) SLR 753 9   (1974) 1 SCC 317

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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  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 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 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 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  prerogative  of  the  employer, mainly  pertaining  to  the  policy-making  field.  The relevant considerations in fixing a particular quota for 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  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

10  (2003) 6 SCC 535

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be  a  sole  criterion  or  basis  to  claim  parity  in  the chances  of  promotion  by  various  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 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 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 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 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

25. While saying so, we are not unmindful of the legal principle 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 infringed thereby.”

11  (2008) 5 SCC 416

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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 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 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 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.”

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 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

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“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 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  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.”

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 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 ensures that

the candidates falling within the zone of consideration are short

listed  for  promotion  but  ultimate  promotion  from amongst  the

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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  Article  14  or  Article  16  of  the

Constitution.  

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 considered for his promotion, which is

his personal right.  The rules and 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 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”  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  “considered”  for  promotion.  Equal opportunity here means the right to be “considered” for promotion. If a person satisfies the eligibility and zone

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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….”

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 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 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.”

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.

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

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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.  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

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 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.

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  basis  of  such  policy.   It  has  been  so  held  by  this  Court  in

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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 get selected at the said interview and who ultimately finds himself  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  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 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) In a judgment reported as Ashok Kumar  v. State of Bihar15, a

three Judge Bench held 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) 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 method- ology 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)

14  (1995) 3 SCC 486 15  (2017) 4 SCC 357

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“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.”

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  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 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 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.”

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] .

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

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impugned  judgment  [Anurag  Verma 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 the requirement of  an examination provided in Rule 5 for direct recruitment to Class  III  posts  or  whether  the  marks  and  qualifying 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

interfered  with  by  the  learned  Tribunal.   Thus,  the  appeal  is

dismissed.

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA)

NEW DELHI; OCTOBER 03, 2019.

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