Air Cmde Naveen Jain vs Union Of India .

2) The appellant was commissioned in the Administrative Branch of the Indian Air Force on December 11, 1981. He was promoted to the rank of Air Commodore in the year 2011. He along with nine other officers were 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 1 for short, ‘Tribunal’ 2 for short, ‘Act’ 1 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.

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 and on the basis of numerical gradings of available Annual Confidential Reports during last ten years. The Board 4 Marks are the sum total of marks given by each member present in the Board meeting on the scale of 05.

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 offi- cers were found better than the appellant, he could not be promoted. In the circumstances, we do not find any substance in the appeal and, therefore, the appeal de- serves to be dismissed.” 5 Writ Petition (C) No. 18935 of 2006 decided on August 24, 2007 6 (2011) 10 SCC 121 7

12 (2009) 5 SCC 1 13 (2010) 1 SCC 335 12 “13. Thus, it is clear that a process whereby eligible candidates possessing the minimum necessary 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.”

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 :

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. Thus, the appeal is dismissed.

OCTOBER 03, 2019.