AIR COMMODORE NAVEEN JAIN versus UNION OF INDIA & ORS.

Citation: [2019] 13 S.C.R. 241 · Decided: 03-10-2019 · Supreme Court of India · Bench: L. NAGESWARA RAO · Disposal: Dismissed

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Judgment (excerpt)

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AIR COMMODORE NAVEEN JAIN
v.
UNION OF INDIA & ORS.
(Civil Appeal No. 3019 of 2017)
OCTOBER 03, 2019
[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
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.
 [2019] 13 S.C.R. 241
241
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SUPREME COURT REPORTS
[2019] 13 S.C.R.
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 mar

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