Supreme Court of India

Air Cmde Naveen Jain vs Union Of India . on 3 October, 2019

Equivalent citations: AIR 2019 SUPREME COURT 5087, 2019 (10) SCC 34, AIRONLINE 2019 SC 1195, 2020 LAB IC 140, 2019 (12) ADJ 36 NOC, (2019) 13 SCALE 316, (2019) 3 ESC 864, (2019) 4 JCR 246 (SC), (2019) 4 SCT 547, (2020) 1 SERVLJ 211, (2020) 1 SERVLR 579, AIR 2020 SC (CIV) 522

Author:
Hemant Gupta

Bench:
Hemant Gupta
,
L. Nageswara Rao

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3019 OF 2017

AIR COMMODORE NAVEEN JAIN .....APPELLANT(S)

VERSUS

UNION OF INDIA & ORS. .....RESPONDENT(S)

JUDGMENT

HEMANT GUPTA, J.

1) The challenge in the present appeal is to an order passed by the

Armed Forces Tribunal, Principal Bench, New Delhi 1 on March 9,

2016 whereby, the Original Application filed by the appellant was

dismissed and also an order of the same date declining leave to

appeal to this Court under Section 31(1) of the Armed Forces

Tribunal Act, 20072.

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’
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.

3) The appellant invoked the jurisdiction of the Tribunal claiming

promotion to the rank of Air Vice Marshal selected by Promotion

Board in order of merit and not in the order of seniority challenging

the clause in the Promotion Policy dated February 20, 2008 that the

merit list prepared by the Board has to be rearranged in the order

of seniority.

4) The argument of learned counsel for the appellant is that

promotion to the rank of Air Vice Marshal is on the principle of

“merit-cum-seniority”. Therefore, seniority cannot be the guiding

principle for promotion once the appellant was found to be

meritorious by the Promotion Board. In support of his argument,

learned counsel for the appellant relied upon judgment of this

Court in Ajit Singh & Ors. (II) v. State of Punjab & Ors.3 and

also to an order passed by this Court in Union of India & Anr. v.

Major General Manoj Luthra & Ors. 4 whereby, the order of the

3 (1999) 7 SCC 209
4 Civil Appeal No. 9390 of 2014 decided on September 29, 2015
Tribunal was affirmed while examining the policy for promotion to

the post of Major General in the Armed Forces Medical Services.

The argument is that similar policy is applicable for promotion to

the post of Air Vice Marshal, therefore, in view 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 “merit-cum-

seniority” as argued by the appellant but is a policy which

contemplates that merit list of officers is prepared from amongst

the candidates in the zone of consideration on the basis of total
marks obtained after adding AR Marks and Board Marks. The

names of the officers will be rearranged in order of seniority at the

second stage of determining the suitability of the officers for

promotion. The right of promotion is in terms of policy alone.

Therefore, if the policy contemplates a particular procedure for

promotion, the promotion can be effected only in such a manner

and in no other manner. It is also argued that the appellant was

aware of the policy and has participated in the promotion process,

therefore, after participating in the selection process and after

remaining unsuccessful, he is estopped to challenge the policy

under which his name was considered for promotion to the post 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
Marks are the sum total of marks given by each member present in

the Board meeting on the scale of 05.

8) The relevant clauses from the Policy dated February 20, 2008 read

as under:

“11. Zone of consideration. (a) Zone of consideration
will be 3 times the number of vacancies occurring.
However, if Zone of Consideration extends to the next
course then all officers who have retained their
seniority from that course would be considered.

(b) All the second and third timers will necessarily form
part of zone of consideration, irrespective of the
number of vacancies.

(c) In cases where available 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 numerical gradings of available ARs
during last ten years will be taken into consideration.

‘Board Marks’ will be sum total of marks given by each
member present in the Board meeting on the scale of
05….”

17. Overall Merit. A merit list of officers considered by
the Board will be prepared on the basis of total marks
obtained in AR Marks and Board Marks. An illustration
to demonstrate the actual computation of an officer’s
marks is placed as Annexure-I to this paper.

A Select List of the officers will be prepared from the
Merit List. The Select List will contain the names of the
officer restricted to the number of forecast vacancies
and rearranged in the order of seniority. The officers
from the list will be promoted in that order.

In case of any additional vacancy/vacancies
(unforeseen or ex-cadre) arising during the promotion
year, these should be added to the forecast vacancies
for the next promotion year and the Promotion Board
for the next promotion year should be appropriately
advanced. The zone of consideration will be as
provided in para 11 above. Therefore, there will be no
“Select Reserve List”.

xx xx xx

22. The recommendations of the Promotion Boards will
be forwarded to Min of Defence for their approval. The
promotions will take effect from the Select List in the
order of seniority against a suitable vacancy arising in
turn.

23. Actual promotion will be subject to the officer’s
maintaining continuity in performance, medical fitness
and availability of a suitable vacancy in his turn.”

9) The validity of such Policy has been upheld by the Tribunal relying

upon Division Bench judgment of High Court of Delhi in
Air Cmde
Randhir Pratap v. Union of India & Ors.5
.

The Tribunal relied

upon
Hardev Singh v. Union of India & Anr.6
to hold that no

employee has a right to get promotion but only a right to be

considered for promotion. The Tribunal found that the Promotion

Policy is based on the principle of “seniority-cum-merit” and not

“merit-cum-seniority” as the ultimate promotions are based on

seniority. This Court in Hardev Singh held as under:-

“25. In our opinion, it is always open to an employer to
change its policy in relation to giving promotion to the
employees. This Court would normally not interfere in
such policy 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 In-

dia [(2002) 2 SCC 333] it has been held that a court
cannot strike down a policy decision taken by the Gov-
ernment 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 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
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”. 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”. Therefore, the first and the foremost

question is as to whether the promotion to the rank of Air Vice

Marshal is based upon the general principle of “merit-cum-

seniority” or “seniority-cum-merit” or that the promotions are to be

made on the basis of the eligibility criteria, procedure and on the

basis of seniority after determining merit of the candidates falling

in the zone of consideration.

11) The Army Order circulating Promotion Policy on February 20, 2008

is statutory in nature. The appellant has challenged such policy

inter alia on the ground that the policy is based upon “merit-cum-

seniority” but the condition in the policy promoting the officers on

the basis of seniority after short listing the officers is contrary to

the principles of promotion based on “merit-cum-seniority”.

Therefore, clause 17 of the Promotion Policy is contrary to

established principles of law pertaining to promotion on the basis

of “merit-cum-seniority” and, thus, not sustainable.

12) A three Judge Bench of this Court in
B.V. Sivaiah & Ors. v. K.
Addanki Babu & Ors.7
while examining the principle seniority-

cum-merit held as under:

“10. On the other hand, as between the two principles
of seniority and merit, the criterion of “seniority-cum-
merit” lays greater emphasis on seniority.
In
State of
Mysore v. Syed Mahmood
[AIR 1968 SC 1113 : (1968) 3
SCR 363 : (1970) 1 LLJ 370] while considering Rule 4(3)

(b) of the Mysore State Civil Services General
Recruitment Rules, 1957 which required promotion to
be made by selection on the basis of seniority-cum-

merit, this Court has observed that the Rule required
promotion to be made by selection on the basis of
“seniority subject to the fitness of the candidate to
discharge the duties of the post from 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 & Anr. v. G.B. Purohit & Ors.8, 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 & Ors. v. State of Maharashtra & Ors.9
,

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

7 (1998) 6 SCC 720
8 (1967) SLR 753
9 (1974) 1 SCC 317
decision of this Court in State of Mysore v. G.B.
Purohit [CA No. 2281 of 1965, decided on January 25,
1967] that though a right to be considered for
promotion is a condition of service, mere chances of
promotion are not. A rule which merely affects chances
of promotion cannot be regarded as varying a condition
of service. In Purohit’s case the district wise seniority of
sanitary inspectors was changed to State wise seniority,
and as a result of this change the respondents went
down in seniority and became very junior. This, it was
urged, affected their chances of promotion which were
protected under the proviso to Section 115, sub-section
(7). This contention was negatived and Wanchoo, J. (as
he then was), speaking on behalf of this Court
observed: “It is said on behalf of the respondents that
as their chances of promotion have been affected their
conditions of service have been changed to their
disadvantage. We see no force in this argument
because chances of promotion are not conditions of
service…..”

14) In
Dwarka Prasad & Ors. v. Union of India & Ors.10
, the

argument examined was that the promotion opportunities have to

be provided in ratio with the strength of the feeder cadre. It was

held as under:

“16. Fixation of quotas or different avenues and ladders
for promotion in favour of various categories of posts in
feeder cadres based upon the structure and pattern of
the Department is a prerogative of the employer,
mainly pertaining to the policy-making field. The
relevant considerations in fixing a particular quota for a
particular post are various such as the cadre strength in
the feeder quota, suitability more or less of the holders
in the feeder post, their nature of duties, experience
and the channels of promotion available to the holders
of posts in the feeder cadres. Most important of them all
is the requirement of the promoting authority for
manning the post on promotion with suitable
candidates. Thus, fixation of quota for various
categories of posts in the feeder cadres requires
consideration of various relevant factors, a few amongst
them have been mentioned for illustration. Mere cadre
strength of a particular post in the feeder cadre cannot

10 (2003) 6 SCC 535
be a sole criterion or basis to claim parity in the
chances of promotion by various holders of posts in
feeder categories.”

15) In
A. Satyanarayana & Ors. v. S. Purushotham & Ors.11
, 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
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
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 Constitution of India.
(See
Vasu Dev Singh v. Union of India
[(2006) 12 SCC
753 : (
2006) 11 Scale 108] and State of
Kerala v. Unni
[(2007) 2 SCC 365] .)

xxx xxx xxx

25. While saying so, we are not unmindful of the legal
principle that nobody has a right to be promoted; his
right being confined to right to be considered therefor.

26. Similarly, the power of the State to take a policy
decision as a result whereof an employee's chance of
promotion is diminished cannot be a subject-matter of
judicial review as no legal right is infringed thereby.”

11 (2008) 5 SCC 416
16) In
A.P. Public Service Commission v. Baloji Badhavath &

Ors.12
, this Court held that the Court will not ordinarily interfere

with the process of determining merit unless the procedure

adopted by it is held to be arbitrary or against known-principles of

fair play. The Court held as under:

“25. How the Commission would judge the merit of
the candidates is its function. Unless the procedure
adopted by it is held to be arbitrary or against the
known principles of fair play, the superior courts
would not ordinarily interfere therewith. The State
framed Rules in the light of the decision of the High
Court in S. Jaffer Saheb [(1985) 2 APLJ 380]. Per se,
it did not commit any illegality. The correctness of

the said decision
, as noticed hereinbefore, is not in
question having attained finality. The matter,
however, would be different if the said Rules per se
are found to be violative of
Article 16
of the
Constitution of India. Nobody has any fundamental
right to be appointed in terms of
Article 16
of the
Constitution of India. It merely provides for a right
to be considered therefor. A procedure evolved for
laying down the mode and manner for consideration
of such a right can be interfered with only when it is
arbitrary, discriminatory or wholly unfair.”

17) In
Rajendra Kumar Srivastava & Ors. v. Samyut Kshetriya

Gramin Bank & Ors.13
, this Court was examining two-stage

process adopted by Bank - the first preparing list of candidates

who secure minimum marks in the performance appraisal and

interview, and the second promoting the candidates who secure

the minimum marks, strictly on the basis of seniority. It was held

that such is seniority-cum-merit criteria for promotion. The Court

held as under:

12 (2009) 5 SCC 1
13 (2010) 1 SCC 335
“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.”

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 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.

19) In Ajit Singh, referred to by learned counsel for the appellant, the

Court held that equal opportunity contemplated by
Article 14
of

the Constitution 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 his promotion, which is

his personal right. The rules and the considerations contemplated

promotion by “seniority-cum-merit” particularly in the light of

reserved category candidates promoted at the roster points. It

was held that in terms of
Article 16
, every employee eligible for

promotion or who comes within the zone of consideration, has a

fundamental right to be considered for promotion but his right is

of consideration alone. The Court held as under:

“22. … It has been held repeatedly by this Court that
clause (1) of
Article 16
is a facet of
Article 14
and that it
takes its roots from
Article 14.
The said clause
particularises the generality in
Article 14
and identifies,
in a constitutional sense “equality of opportunity” in
matters of employment and appointment to any office
under the State. The word “employment” being wider,
there is no dispute that it takes within its fold, the
aspect of promotions to posts above the stage of initial
level of recruitment.
Article 16(1)
provides to every
employee otherwise eligible for promotion or who
comes within the zone of consideration, a fundamental
right to 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 SCC (L&S) 1299] right from 1950.”

20) 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.

21) 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.

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.14
:

“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 Bihar15
, 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)

14 (1995) 3 SCC 486
15 (2017) 4 SCC 357
“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. Thus, the appeal is

dismissed.

.............................................J.
(L. NAGESWARA RAO)

.............................................J.
(HEMANT GUPTA)

NEW DELHI;

OCTOBER 03, 2019.