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TMI Blog2019 (10) TMI 1605X X X X Extracts X X X X X X X X Extracts X X X X ..... bility 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. X X X X Extracts X X X X X X X X Extracts X X X X ..... w 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 &quo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 num ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy 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 India [(2002) 2 SCC 333] it has been held that a court cannot strike down a policy decision taken by the Government 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 officers were fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom 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 and Anr. v. G.B. Purohit and Ors. (1967) SLR 753, 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 and Ors. v. State of Maharashtra and Ors. (1974) 1 SCC 317, 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 decision of this Court in Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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 ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be "considered" for promotion. Equal opportunity here 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 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 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Bihar (2017) 4 SCC 357, a three Judge Bench held that the Appellants were estopped from turning arou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 interfe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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