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CASE NO.: Appeal (civil)  503 of 2007

PETITIONER: Union of India and Anr

RESPONDENT: F.H. Dubash

DATE OF JUDGMENT: 06/02/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T CIVIL APPEAL  NO.      503         OF 2007 (Arising out of SLP (C) No. 5180 of 2006)

Dr. ARIJIT PASAYAT, J.

       Leave granted.

       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

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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  follows:         "Before each Promotion Board, an  Approach paper is to be prepared by the  Personnel Branch and approved by the CNS.  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 considered:-

(a)     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 rank.

(b)     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

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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         1.      Two fresh look cases            Two review cases         2.      Four fresh look cases   Two review cases         3.      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 vacancy.

       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 considered.  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

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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 direct.  The appeal is allowed but without any order as to costs.