The Hon’ble Supreme Court, on 3rd October 2019, in the matter of Air Commodore Naveen Jain v. Union of India & Ors. pronounced that lack of vacancy is not a ground on the basis of which promotion policy can be struck down.
The Hon’ble Supreme Court observed that:
Mere fact that an officer 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. (Para 21)
The promotion has to be affected in terms of statutory rules and in absence thereof, as per the executive instructions. 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. (Para 22)
An officer participating in the selection process is estopped to challenge the policy of promotion after participating in the selection process on the basis of such policy. (This inference has been drawn on the basis of Para 23)
-Adv. Tushar Kaushik