Case: AIR COMMODORE NAVEEN JAIN Vs. UNION OF INDIA

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 Madan Lal & Ors. v. State of J & K & Ors. (1995) 3 SCC 486 :?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 Bihar (2017) 4 SCC 357(2017) 4 SCC 357 , 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) ?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 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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?.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 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.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.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.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.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.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 learnedthe 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?.