TaxTMI 
TaxTMI 
2019 (10) TMI 1605
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....ere 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. 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, senior....
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....f 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 a....
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....#39;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 B....
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....he 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 and Ors. v. K. Addanki Babu and Ors. (1998) 6 SCC 720 while examining the principle seniority-cum-m....
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....cted 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 and Ors. v. Union of India and Ors. (2003) 6 SCC 535, 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 holde....
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....Commission v. Baloji Badhavath and Ors. (2009) 5 SCC 1, 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. Jafer 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 onl....
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....rt 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 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 1....
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....ot a ground on which the Promotion Policy can be struck down. 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. 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 ....
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....nd 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) 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. Thi....