2019 (10) TMI 1605 - SC - Indian Laws

Validity of promotion policy for the rank of Air Vice Marshal in the Indian Air Force which rearranges the merit list in order of seniority - principles of merit-cum-seniority or seniority-cum-merit ? - HELD THAT - 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 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. Conclusion - i) No employee has a right to get promotion but only a right to be considered for promotion. ii) The policy provides equal opportunities to the officers falling within the zone of consideration and subsequent promotion. The policy circulated on February 20 2008 do not suffer from any illegality which was rightly not interfered with by the learned Tribunal. Thus the appeal is dismissed.

Summary

ISSUES PRESENTED and CONSIDERED

The core legal issues considered in this judgment are:

• Whether the promotion policy for the rank of Air Vice Marshal in the Indian Air Force, which rearranges the merit list in order of seniority, is valid under the principles of "merit-cum-seniority" or "seniority-cum-merit".
• Whether the Appellant's challenge to the promotion policy is sustainable, given his participation in the selection process.
• Whether the policy is discriminatory or arbitrary, violating Articles 14 and 16 of the Constitution of India.
• Whether the Appellant's right to be considered for promotion was infringed upon due to the lack of available vacancies before his superannuation.

ISSUE-WISE DETAILED ANALYSIS

1. Legal Framework and Precedents

The legal framework revolves around the Armed Forces Tribunal Act, 2007, and the promotion policy dated February 20, 2008. The precedents cited include judgments in Ajit Singh v. State of Punjab, Hardev Singh v. Union of India, and B.V. Sivaiah v. K. Addanki Babu, among others. These cases explore the principles of "merit-cum-seniority" and "seniority-cum-merit" in promotions.

2. Court's Interpretation and Reasoning

The Court interpreted the promotion policy as being based on "seniority-cum-merit," where the ultimate promotions are based on seniority after determining merit. The policy does not explicitly state a preference for "merit-cum-seniority" or "seniority-cum-merit," leading the Court to evaluate the entire policy's criteria.

3. Key Evidence and Findings

The Court examined the clauses of the promotion policy, particularly Clauses 17 and 22, which dictate the preparation of a merit list and its rearrangement in order of seniority. The Court found that the policy ensures candidates within the zone of consideration are shortlisted based on merit, but promotions are ultimately based on seniority.

4. Application of Law to Facts

The Appellant's argument that the policy should prioritize merit was rejected as the policy explicitly rearranges the merit list by seniority. The Court found no violation of Articles 14 and 16, as the policy provides equal opportunities to all officers within the zone of consideration.

5. Treatment of Competing Arguments

The Appellant argued that the policy was contrary to the principle of "merit-cum-seniority" and cited similar cases where policies were found ambiguous. The Respondents contended that the policy was clear and based on seniority-cum-merit, and that the Appellant, having participated in the process, was estopped from challenging it. The Court sided with the Respondents, emphasizing the policy's clarity and the Appellant's acceptance of its terms by participating in the process.

6. Conclusions

The Court concluded that the policy does not suffer from illegality or arbitrariness. The Appellant's participation in the selection process estopped him from later challenging the policy. The lack of vacancies before the Appellant's superannuation did not invalidate the policy.

SIGNIFICANT HOLDINGS

The Court upheld the validity of the promotion policy, emphasizing that:

• "No employee has a right to get promotion but only a right to be considered for promotion."
• "The policy provides equal opportunities to the officers falling within the zone of consideration and subsequent promotion."
• "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."

The Court dismissed the appeal, affirming the Tribunal's decision and holding that the policy is not discriminatory or arbitrary, and does not violate constitutional principles. The Appellant's challenge was further weakened by his participation in the selection process under the existing policy.