Holding

The Supreme Court held that the High Court erred in granting promotion to the respondent because, under Navy Order (Special) 4/99 and the applicable guidelines, the zone of consideration must be expanded for multiple vacancies, and the respondent was not within the eligible positions.

Summary

The respondent, F.H. Dubash, filed a writ petition seeking promotion to Rear Admiral, arguing that being second on the merit list entitled him to promotion because two vacancies existed. The Delhi High Court agreed and ordered his promotion. On appeal, the Supreme Court examined the promotion procedure under the Regulations for Navy Part III (Statutory) Chapter I, the Ministry of Defence guidelines of September 2000, and Navy Order (Special) 4/99. It held that when multiple vacancies are considered, the "zone of consideration" must be expanded, and in the present case six officers were considered, placing the respondent at the fourth position, thus not eligible for promotion. The Court found no conflict between the government guidelines and Navy Order 4/99 and concluded that the High Court’s decision was erroneous. Consequently, the appeal was allowed and the High Court order set aside without any order as to costs.

Issues considered

Whether the respondent was entitled to promotion solely on the basis of being second in the merit list when two vacancies were available.
Whether the promotion procedure complied with the Regulations for Navy Part III, Ministry of Defence guidelines, and Navy Order (Special) 4/99.
How the "zone of consideration" should be determined when multiple vacancies exist.
Whether there is any conflict between the Government guidelines dated 25 September 2000 and Navy Order (Special) 4/99.

Subjects

promotionnavyservice lawmerit listzone of considerationgovernment guidelinesNavy Order 4/99appellate jurisdictionwrit petition

Judgment

-..... UNION OF INDIA AND ANR. A
v.
F.H.DUBASH

FEBRUARY 6, 2007

[DR. ARIJIT PASAYAT AND LOKESHWAR SINGH PANTA, JJ.] B

l-c. Service Law-Promotion-Promotion of one officer-Officer at No. 2 in
merit list claiming his promotion-Writ Petition-High Court holding that
since there were two vacancies, officer at No. 2 also entitled to promotion-
On appeal, held: Order of High Court not justified as the same was without
c
consideration of the norms of promotion-Regulations for Navy Part 111
--'>-
(Statutory) Chapter I.

In a Writ Petition filed by the respondent claiming promotion, High
Court held that he was eligible for promotion as he was at serial No. 2 in the D
merit list and two vacancies were available. Hence the present appeal.
i-
_, Allowing the appeal, the Court.

HELD: 1. There is nothing illegal in the procedure adopted. It was inter
alia noted that while considering the matter on 24th August, 2004, two E
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
t Staff is required to approve the Approach papers prepared by the Personnel F
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.
[Para 12] (319-H; 320-A-B]
!,., G
/ ,,
- -~ 2. 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
315 H
316 SUPREME COURT REPORTS [2007] 2 S.C.R.

A vacancies, then two more officers from within the zone of consideration for
filling up the vacancy are to be considered. [Para 10] [319-B-C]

3. 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
B 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 appellants have accepted that there is no conflict and the
Navy Order (Special) 4/99 was to prevail. When all vacancies are made
C available the llanel of officers for consideration has to be accordingly
expanded. [Para 11] [319-F-G; E]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 503 of2007.

From the final Judgment and Order dated 7.2.2006 of the High Court of
D Delhi at New Delhi in W.P. No. 14467/2004.
Vikas Singh, A.S.G., Anuvrat Sharma, Sanjay Kumar Singh and Anil
Katiyar for the Appellants.

Sanjay Kapur, Shubhra Kapur, Rajiv Kapur and Arti Singh for the
E Respondent.
The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Leave granted.

2. The appellants call in question legality of the judgment rendered by
F 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
G 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, ~
I
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
H
f
U.0.1. v. F.H. DU BASH [PASA YAT, J.] 317

justified in holding that merely because the respondent was ranked second A
·--r 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.

3. 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 B
of the Directorate Business Rules, 200 I. 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
c
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 D
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 ma/a fides were involved.

4. According to learned counsel for the respondent, the High Court has E
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.

5. A few provisions in the Regulations for Navy Part III (Statutory)
F
\' Chapter I need to be noted. Clause I 0 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,
G
number of officers to be selected based on a long term perspective
and other important policy decisions as applicable. No departure from
,,,r, the procedure stipulated in the Approach Paper will be permitted ..
without prior approval of the CNS."

6. The selection procedure is provided in Clause 11. The same reads as H
318 SUPREME COURT REPORTS [2007] 2 S.C.R.

A 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
B 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 j
to the rank of Rear Admiral and below, officers of each branch will be
c divided into half-yearly batches depending on their seniority, i.e.
officers of Ist January to 30th June seniority forming one batch and
of !st 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.
D
NOTE: The select list of a particular year will be divided into two
bate.hes, 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
E only for the purpose of confirmation in the higher rank, as a batch."

7. 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:

F "The officer, not placed in Select List for promotion to higher rank ..,
will be considered for promotion upto three times in each rank."

8. 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 ChiefofNaval
Staff had fixed the norms as follows:
G
Vacancies Area of consideration
,'r .
I. Two fresh look cases Two review cases

2. Four fresh look cases Two review cases
H
U.0.1. v. F.H. DUBASH [PASAYAT,J.] 319

3. Seven fresh look cases Two review cases A
9. 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.

10. It is to be noted that the High Court has lost sight of one relevant B
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 C
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 D
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.

11. The High Court seems to have proceeded on the basis that there
was a conflict between the Ministry of Defence Guidelines dated 25th E
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 F
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. G
12. 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
H
320 SUPREME COURT REPORTS 12007] 2 S.C.R.

A 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
B 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
J
aforesaid procedure does not appear to have been departed from. The.refore,
C 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.

K.K.T. Appeal allowed.