UNION OF INDIA Vs. F H DUBASH

JUDGEMENT

(1.) Leave granted.

(2.) 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.

(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 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.