Union of India and Anr Vs. F.H. Dubash  Insc 103 (6
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH
CIVIL APPEAL NO. 503 OF 2007 (Arising
out of SLP (C) No. 5180 of 2006) Dr. ARIJIT PASAYAT, J.
The appellants call in question
legality of the judgment rendered by a Division Bench of the Delhi High Court
allowing the writ petition filed by the respondent and holding that the
respondent was eligible for promotion to the rank of Rear Admiral. The High
Court was of the view that there were two vacancies available and, therefore,
the respondent who was eligible and at serial No.2 in the merit list was denied
promotion. The order of the High Court is challenged on the ground that the High
Court has completely lost sight of the requirements of Navy Order 4/99. It is
the case of the appellants that only one vacancy was under consideration by the
Promotion Board and, therefore, only the officer who was at the first rank was
appointed. In case the vacancies are more, particular modalities are to be
adopted and in the zone of consideration respondent was placed lower. The High
Court was not justified in holding that merely because the respondent was ranked
second in the merit list when the consideration was for one vacancy, he ought to
have been appointed when two vacancies were considered by the Promotion Board.
It is pointed out that the normal
procedure adopted is not disputed by learned counsel for the respondent that
when consideration is for one post, two "fresh look" and two "review"
cases are to be considered in terms of
the Directorate Business Rules, 2001. The promotion factors and the Government
instructions have one objective i.e. one batch should not take advantage because
of one year vacancy.
Therefore, the cases of 1989, 1990 and
1991 come within the zone of consideration and that the consideration was not
confined to one batch and that is why the zone of consideration was expanded.
The High Court's view is that since two vacancies were to be considered, the
respondent automatically becomes entitled to promotion. By following the norms
of zone of consideration if two vacancies are considered, he does not come into
zone of promotion. In fact, three people were promoted taking into account the
vacant posts. They were not parties before the High Court. Therefore, the High
Court did not disturb them. It has not been indicated in the High Court's order
as to how its order can be implemented if there was no vacancy. Further, the
High Court should not have interfered with the policy decision. It was the Chief
of Naval Staff who had decided the norms. It is not the case of respondent that
there mala fides were involved.
According to learned counsel for the
respondent, the High Court has taken note of the fact that there were two
vacancies which could have been considered at the time of initial consideration.
Therefore, the respondent who was at serial no.2 in the merit list should have
been automatically appointed.
A few provisions in the Regulations
for Navy Part III (Statutory) Chapter I need to be noted. Clause 10 reads as
"Before each Promotion Board, an
Approach paper is to be prepared by the Personnel Branch and approved by the
The paper will broadly lay down the
procedure to be followed by the Board. It will provide information regarding
batches to be considered, number of officers to be selected based on a long term
perspective and other important policy decisions as applicable. No departure
from the procedure stipulated in the Approach Paper will be permitted without
prior approval of the CNS."
The selection procedure is provided in
Clause 11. The same reads as follows:
"Number of officers to be considered:
The following guidelines will apply with regard to the number of officers to be
Selection to the rank of Vice
Admiral: The number of officers to be considered for promotion to the rank of
Vice Admiral will be decided by the Board based on the seniority wise
distribution of officers and the number of vacancies available in the higher
Selection to the rank of Rear
Admiral and below: For promotion to the rank of Rear Admiral and below, officers
of each branch will be divided into half-yearly batches depending on their
seniority, i.e. officers of Ist January to 30th June seniority forming one batch
and of Ist July to 31st December seniority forming the other. The number of
half-yearly batches to be considered on a particular occasion will be decided on
the basis of the long and short term requirements of the Services and the number
of vacancies likely to become available.
NOTE: The select list of a particular
year will be divided into two batches, i.e. Select List A &
B corresponding to the six monthly
batches considered in that year. The officers belonging to a particular batch
list will be considered together for promotion irrespective of their date of
confirmation in the rank Select List A and B will be used only for the purpose
of confirmation in the higher rank, as a batch."
The number of officers to be
considered is of considerable importance in the present dispute. The relevant
prescriptions are in Clause 13. The same read as follows:
"The officer, not placed in Select
List for promotion to higher rank will be considered for promotion upto three
times in each rank."
Before each Promotion Board, the
number has to be fixed and the Chief of Naval Staff has to fix the number. As
noted above, the Chief of Naval Staff had fixed the norms as follows:
Vacancies Area of consideration
Two fresh look cases Two review cases
Four fresh look cases Two review
Seven fresh look cases Two review
cases It is to be noted that review number remains constant at two. There is no
dispute that initially the Chief of Naval Staff decided that there was one
It is to be noted that the High Court
has lost sight of one relevant fact that if two vacancies are to be considered
for filling up by the appellant, then the zone of consideration is six officers
as against zone of 4 officers taken into account for filling up one vacancy. If
the zone of consideration is in respect of two vacancies, then two more officers
from within the zone of consideration for filling up the vacancy are to be
By order dated 10.3.2006 this Court
had directed that the process as directed by the High Court is to continue, but
no final decision can be taken. It was indicated by way of an affidavit that the
exercise was undertaken and in the said exercise six officers were considered
and the respondent in the promotional list prepared by the appellants is at
serial No.4 and accordingly he does not come within the first two names for
promotion as Rear Admiral if only two vacancies are taken into consideration.
The first and second persons in the merit list are amongst the three persons who
were promoted in the selection by the Promotion Board dated 24.8.2004.
The High Court seems to have proceeded
on the basis that there was a conflict between the Ministry of Defence
Guidelines dated 25th September, 2000 and Navy Order (Special) 4/99 issued by
the Chief of the Naval Staff. The appellants have accepted that there is no
conflict and the Navy Order (Special) 4/99 was to prevail. It is to be noted
that when all vacancies are made available the panel of officers for
consideration has to be accordingly expanded. There appears to be no conflict
between the Government guidelines dated 25.9.2000 and the policy of the
equitable distribution of vacancies containing the Naval Order (Special) 4/99.
The High Court seems to have proceeded on the basis that when two vacancies were
available on 18.6.2004, one vacancy should not have been released and the
selection of the respondent was to be done automatically. This does not appear
to be the correct approach to be adopted.
The High Court found fault with the
procedure adopted i.e. considering one vacancy on 18.6.2004 and two vacancies in
the New Board convened on 24th August, 2004 thereby considering cases of five
more officers. There is nothing illegal in the procedure adopted. It was inter
alia noted that while considering the matter on 24th August, 2004, two
additional vacancies of 2005 were taken into account keeping in view the
guidelines issued by the Ministry of Defence in September, 2000 and five more
"First Look officers" of next 18 months batch were included in the list for
consideration in accordance with Naval Orders (Special) 4/1999 to ensure equal
distribution of promotion factor amongst batches. The Chief of Naval Staff is
required to approve the Approach papers prepared by the Personnel Branch of the
Ministry of Defence.
The paper laid down the procedure to
be followed by the Board and to supply the information regarding the batches to
be considered, number of officers to be selected and other policy decisions. The
aforesaid procedure does not appear to have been departed from. Therefore, the
High Court's approach is clearly erroneous and deserves to be set aside which we
The appeal is allowed but without any
order as to costs.