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PETITIONER:

UNION OF INDIA & ORS.

Vs.

RESPONDENT:

LT. GEN. RAJENDRA SINGH KADYAN & ANR.

DATE OF JUDGMENT: 28/07/2000

BENCH:

CJI., S. Rajendra Babu, J. & Doraiswamy Raju, J.

JUDGMENT:

RAJENDRA BABU, J. :

The dispute in this case is in regard to the appointment to the

post of Army Commander. When Lt.Gen. H.R.S. Kalkat

[hereinafter referred to as respondent No.2] was appointed or

promoted as the Army Commander, Eastern Command, the same was

challenged by Lt. Gen. Rajendra Singh Kadyan [hereinafter

referred to as respondent No.1] by way of a writ petition

(Civil Writ No. 1527 of 1998) in the High Court of Delhi

principally on the ground that he is the senior-most eligible

officer to be appointed to that post; that he was seeking the

aid of the court to prevent unnecessary and avoidable aberration

with regard to appointment/promotion of senior officers in the

Army and keeping in view the long term interest of the Army and

the country so as to avoid politicalisation of the crucial posts

in the Army; that he had won various meritorious awards; that

he commanded a company in Nagaland and was awarded Vishist Seva

Medal (VSM) on January 26, 1990 and as a Major General he

commanded Assam Rifles, Rashtriya rifles and Border Security

Force (BSF) and he was successfully able to bring cease fire in

1997 which is still holding; that he was awarded Ati Vishist

Seva Medal (AVSM) on February 26, 1998 for his operational

success and outstanding achievement; that he commanded a company

in the Bangaladesh war; that his contribution in Operation

Black Thunder was awarded The Chief of Army Staffs

Commendation in 1985; that he has the requisite staff

experience and has served on the staff of an Infantry Brigade and

an Infantry Division in Operational appointments; that he from

the rank of Lt. Colonel onwards has attained all his select

promotions in the first chance through unanimous decisions;

since 1997 he has been in command of the oldest and the most

prestigious strike Corps of the Army; that the appointments and

promotions to the post of Army Commander/Vice Chief of the Army

Staff (VCOAS) are governed by the instructions as contained in

the Government of India letter dated October 20, 1986; that the

said letter came into effect from January 1, 1989; that he

became eligible to be promoted as Army Commander as and when

vacancy arose and instructions issued by the Government of India

were amended on November 18, 1996 which prescribe an additional

criteria for appointment to the post of Army Commander, namely,

that the officer should have commanded a Corps for at least one

year so as to become eligible for appointment as Army

Commander/VCOAS and no waiver in this stipulation is allowed

without prior concurrence of the Government; that the order

dated November 18, 1996 has come into effect only to affect

respondent No.1; that even otherwise in relation to such

stipulation he had been granted a waiver by the Government as

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prescribed by letter dated November 18, 1996 as per the

Government order dated March 16, 1998; that he was fit in all

respects for appointment to the post of Army Commander; that the

second appellant had recorded in Annual Confidential Reports

(ACRs) in respect of respondent No.1 that on or after February

27, 1998 he was fit in all respects; and, that having found

respondent No.1 fit in all respects on or after February 27, 1998

and he being the senior most Lt. General in the Indian Army

ought to have been appointed as Army Commander.

Respondent No.1 claimed that when he was posted as Attache in

Paris he was considered for the post of Major General on April

24/25, 1992 wherein he was approved for being promoted as Major

General and the said decision was communicated to him on July 7,

1992. However, he was promoted to the post of Major General on

September 1, 1995 after respondent No.1 was repatriated from

Paris. The Selection Board for selecting Lt. General met on

October 21, 1994, the decision of which was communicated to

respondent No.1 on February 21, 1995. The case of respondent

No.1 was deferred on the ground that the criteria appointment

was lacking. Again on April 21/22, 1995 his appointment as Lt.

General was deferred on the ground not adequately exercised in

criteria appointment. Similarly, his case was again deferred on

October 11/13, 1995 and on April 24/25, 1996. On October 31,

1996 his case was recommended to be promoted as Lt. General. It

was contended before the High Court that for certain irrelevant

consideration and mala fide reasons the case of respondent No.1

was deferred by the Central Government to accommodate Major

General B.S. Malik who was made a Lt. General; that such

deferment of the case of respondent No.1 by the Central

Government was unprecedented in the history of Army. Respondent

No.1 sought for review of the Government decision regarding

change of his grading from approved to deferred by an

application made on March 8, 1997. On April 10, 1997 respondent

No.1 was again considered by a Special Selection Board to the

post of Lt. General.

The decision thereto was conveyed to him on July 8, 1997. It is

at this stage that the Chief of the Army Staff had issued

letters/instructions stipulating that henceforth an officer to be

eligible to become Army Commander/VCOAS should have commanded a

Corps for at least one year. That is the first time such a

stipulation had been introduced in the Army and made applicable

with immediate effect. On a representation made by respondent

No.1 waiver was granted for a period of six months for his

consideration for promotion to the rank of Army Commander/VCOAS.

It was contended on behalf of respondent No.1 that 2/3 days after

respondent No.1 was recommended for promotion by respondent No.

2 (Appellant No. 2 herein) on March 2, 1998 a proposal was

mooted for appointment of the Army Commander, Eastern Command for

filling up the vacancy that arose on March 1, 1998 when

respondent No.2 was recommended for promotion/appointment to the

post of Army Commander, Eastern Command. On respondent No.1

approaching the High Court on March 27, 1998, while directing

notice it was made clear that if any appointment is made to the

post of Army Commander, Eastern Command, the same shall be

subject to the result of the writ petition. It was contended

before the High Court that for the first time more than one

officer was considered at the time of making the recommendations

for appointment or promotion to the post of Army Commander in the

Indian Army; that in the past only name of senior most officer

was forwarded and recommended for appointment/ promotion as Army

Commander; that respondent No.1 was recommended for appointment

as Army Commander; that when the statutory complaint was filed

by respondent No.1, appellant No. 2 had recommended to appellant

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No. 1 the name of respondent No. 2 and, therefore, the impugned

decision dated March 25, 1998 with the recommendation was sent to

the Appointment Committee of the Cabinet the name of respondent

No. 4 for promotion/appointment as Army Commander, Eastern

Command in supersession of respondent No.1 is bad in law.

The High Court first dealt with contention that stay of

respondent No.1 in Paris should not come in his way for purpose

of selection to a higher post. After going through the entire

files it was noted that had respondent No.1s promotion not been

deferred, he would have become Lt. General in 1996 itself

although Major General B.S. Malik was promoted as Lt. General

in spite of grading unfit to him by the Special Selection

Board. Surprisingly on November 23, 1996 the Defence Secretary

recommended that Major General B.S. Maliks grading may be

changed from Grade D to Grade B and in the case of the

petition his grading from fit was recommended to be deferred

and the Defence Secretary relied upon the fact that respondent

No.1 has not completed the laid down adequately exercised period

of 18 months. The High Court commented on the manner of dealing

with the files as rather strange and observed that there is

inconsistency in the arguments advanced on behalf of the

appellants inasmuch as only seniority of an officer is important;

that the words senior most officer who is otherwise fit should

be understood as that an officer whose name has been recommended

by the Board is also fit in all respects. On perusal of files,

the High Court came to the conclusion that the second respondent

could never be deemed to be senior most officer who was otherwise

fit and could not be compared with respondent No.1; that

recommendation is in total disregard of the past practice and

procedure; that the cases referred to are those of senior

general officers, namely, Lt. General I.G. Khanna, Maya Dass

and G.L. Bakshi, who missed promotion to the rank of Army

Commander on comparative merit and weak profile; that the note

of the Joint Secretary admitted that in these cases there was no

recommendation for promotion on account of their C.Rs. However,

the High Court proposed to consider their cases separately. The

High Court further concluded that from the records made available

to the court it was evident that in the past only the senior most

Lt. General was considered for promotion to the rank of Army

Commander in the vacancy arising as happened due to the

retirement of Lt. General Surinder Nath; that the cases of Lt.

General K.L. DSouza and Lt. General S.K. Sharma were

recommended for promotion/appointment as GOC-In-C, ARTRAC; that

the reason for not appointing Lt. General K.L.DSouza was that

he was placed in low medical category.

The High Court found force in the argument that comparative merit

was not the requirement to be applied by the appellants; that

the general officers meeting the requirement of Army letter dated

October 20, 1996 were promoted as Army Commanders on the basis of

the seniority; that fitness in every respect coupled with

seniority is the criteria of appointment to the post of Army

Commander, and it noticed that the appellants could not go into

the question of comparative merit to the post of Army Commander

when respondent No.1 carrier profile, experience, positive

recommendation in the A.C.R. makes him fully fit for holding the

post of Army Commander, any other consideration which has gone

into the process of denying that right is not justifiable if

respondent No.1 was eligible in terms of policy of the appellants

dated October 20, 1986 particularly when the appellants have

considered his case for waiver which was granted by six months

and when respondent No.1 stayed in Paris for a duration longer

period and that the same cannot be utilised against him.

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The High Court also noticed that he had given his willingness

certificate is not correct from the perusal of the records and he

should have been repatriated on completion of three years which

was not done. The High Court also took into consideration the

statutory complaint made by respondent No.1. It was noticed that

on February 27, 1998 when the Chief of the Army Staff had found

respondent No.1 fit in every way to hold his present rank as well

as found him fit for promotion to the next higher

rank/appointment, how the name of respondent No. 4 could have

been recommended on March 2, 1998. Therefore, the High Court

critically analysed the Cabinet Secretarys notice and found that

respondent No.1 fulfilled the necessary criteria mentioned for

promotion to the post of Army Commander. The High Court laid

emphasis on the criteria seniority-cum-fitness rather than

seniority-cum-merit and what is obligatory is that the

promotion is automatic. Finally, the High Court noticed that the

only question before it whether the post of Army Commander which

became available on March 1, 1998 on the retirement of Lt.

General Ravi Eipe when the cases of respondent No. 1 and

respondent No. 2 were considered whether the appointment of

respondent No. 2 as Army Commander in spite of respondent No. 1

being admittedly senior to respondent No. 2 was justified. The

High Court noticed that the argument advanced on behalf of the

appellants that the Circular dated October 16, 1992 was

complementary to the Circular dated October 20, 1986 does not

inspire any confidence and it is not one of those orders issued

in terms of Article 73 of the Constitution. The whole rationale,

therefore, was of the principle of seniority-cum-fitness and

thus considered, the senior person unless unfit should get the

promotion automatically and, therefore, seniority ought to have

been given preponderating weight. Further, It noted that the

appointment of Army commander is a selection grade appointment to

be filled from eligible Corps Commander. Prior to 1986 Corps

Commanders subject to having positive recommendation in their

A.C.Rs. became Army commanders In 1986 a criteria of two years

residual service was introduced for their becoming Army

Commanders subject to their being fit in every respect. General

Officers meeting the said criteria was promoted in the order of

their seniority. One year command of a Corps was added to the

criteria prescribed in 1986 by letter dated November 1996 which

also provided for a waiver by the competent authority. The note

of the Cabinet Secretary in which he has comparatively discussed

the A.C.Rs. of 1971 of respondent No.1 amounts to importing a

non- existent criteria after respondent No.1 was found fit in all

respects in the A.C.R. on the basis of which he was promoted to

next higher rank. The minimum tenure of one year as Corps

commander had also been met by respondent No.1 on account of

grant of waiver by the Government. The deferment made in the

grading in October 1996 of the Selection Board had adversely

affected respondent No.1 and it is only thereafter stipulated

that an officer to become eligible to be an Army Commander should

have commanded a Corps for at least one year. In this

background, the High Court quashed the appointment of respondent

No. 2 as Army Commander, Eastern Command and allowed the writ

petition.

Challenging this order of the learned Single Judge of the High

Court a Letters Patent Petition (L.P.A No. 568/98) was filed before the

Division Bench of the High Court. By a very short order the Division

Bench of the High Court disposed of the Letters Patent Petition stating

that the comparative merit of officers was neither the requirement nor it

is permissible and the appellants should not have treated the post of

Army Commander as a selection post. The Division Bench is in

agreement with the opinion of the learned Single Judge that in the past

only a single person was considered and if he is not fit, then alone the

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next person in seniority was considered. Reliance placed by the

Government on Circular dated October 16, 1992 is not correct and was

rightly rejected by the learned Single Judge inasmuch it is a non-

statutory document. This is not the case of seniority-cum-merit but it

is only seniority-cum-fitness subject to rejection on the basis of being

unfit. Seniority alone governed the matter. On that basis the High

Court dismissed the appeal. Hence the present appeals - one filed by the

Union of India and its officers (Civil Appeals Nos. 359-360 of 1999) and

the other (Civil Appeals Nos. 361-362 of 1999) by Lt. Gen. H.R.S. Kalkat,

respondent No. 2 in Civil Appeals Nos. 359-360 of 1999.

In this Court, the learned Attorney General contended on behalf

of the Union of India that the High Court had erred in quashing

the appointment of respondent No. 2 as Army Commander, Eastern

Command; that the entire consideration of the matter is

mis-placed; that the High Court had given undue importance to

A.C.Rs. in the matter of promotion and when security of the

country is of paramount consideration, mistakes cannot be allowed

and gaining necessary field experience is absolutely essential;

mere emphasis on the A.C.Rs. will not change the ground

realities and, therefore, whatever may be the circumstances in

which the appellant could not gain the necessary experience;

that the High Court could not have interfered with the impugned

action. The High Court has indulged in nit picking by making a

censorious approach in examining the dossiers and files as also

the note of the Cabinet Secretary; that the comparative merit is

not prohibited in making the selection, which was quite often

resorted to in making appointments to the post of Army Commander.

Shri Gopal Subramaniam, learned Senior Advocate appearing for

respondent No. 2 and appellant in connected matter, supported

the contentions of the learned Attorney General and supplemented

the same on factual aspects.

Shri P.P.Rao, learned senior advocate for respondent No.1,

submitted, at the very outset, that decision in this case is of

great momentous nature to the army inasmuch as the principles

relating to the promotion to the post of Army Commander, that is,

in the highest echelons of service are in issue. Indeed he

submitted that up to the stage of appointment as Lt. General,

rigorous tests have to be undergone by the concerned officers

before they are promoted and such processes have been undergone

having reached a particular level. Further tests are held almost

automatically unless there is something adverse as to their

fitness. He stated that in these cases it is only seniority that

governs and that when it was ignored the matter was taken to the

High Court and the High Court has given relief in this case and,

therefore, this Court should not interfere in the order made by

it. Respondent No.1 has always been senior to respondent No.2 by

as many as 40 places although they belonged to the same batch

having been commissioned on 10.6.1962. Respondent No.1 had a

distinguished career and participated in the operations of 1971

Indo-Pak war and also has extensive counter insurgency

experience. The battalion in which respondent No.1 was working

during the war was engaged in fighting the enemy from Agartala to

Dhaka and reached Dhaka on December 16, 1971 i.e. the date of

cease-fire and surrender of the Pakistan Army. In terms of

letter dated November 18, 1996, the officer should have commanded

Corps for at least one year so as to become eligible for

appointment as Army Commander unless waived with the prior

concurrence of the Government. As respondent No.1 was the only

person to be affected by this new criterion which was sought to

be enforced without any lead time, contrary to the earlier

practice, in his statutory complaint dated 5.10.1997, he made an

alternative request that this stipulation may be waived in his

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case as the delay in his promotions have been caused entirely in

the interest of service and he specifically mentioned that the

vacancy was due to occur on March 1, 1998 and he should be

considered for the same. On 6.1.998, the Chief of the Army Staff

recommended the waiver by months for consideration for promotion

to the appointment of Army Commander for a vacancy occurring on

March 1, 1998. The Central Government accepted the

recommendation of the Chief of the Army Staff. The case of

respondent No.1 would have been considered for appointment for

the Army Commander in normal circumstances had he not been

inordinately delayed in being placed on present criteria

appointment. The delay was caused due to circumstances well

beyond the control of respondent No.1 and was primarily due to

administrative constraints of the organisation. New clause of

tenure of one year as a Corps Commander affected only respondent

No.1 and this aspect was borne in mind by the Chief of the Army

Staff while making the recommendation. On 10.4.1997, respondent

No.1 was selected for the post of Lt. General by the Special

Selection Board and on 8.7.1997, he was intimated of the fact of

selection and approval by the Government. In another case filed

by Major General Bagga, the Delhi High Court passed a stay order

in July, 1997. On 23.8.1997, respondent No.1 was put in-charge

of GOI-1 Corps and started gaining experience of commanding the

Corps and continues to command the same even now. Thus Shri Rao

submits that in terms of letter dated November 18, 1996, it is

enough if the officer has commanded a Corps for one year by the

date of appointment to the post of Army Commander in the absence

of waiver or including the period of waiver. The appointment to

the post of Army Commander having been made by an order dated

20.4.1998, as on that date respondent No.1 had actually commanded

Corps 1 for a period of seven months and 26 days; adding the

period of waiver of six months, it comes to a total of one year,

one month and 26 days. In other words, he fulfilled the

requirement of commanding a Corps for at least one year by

February 22, 1998. Therefore, he was eligible for consideration

for the post in question and that he was rightly treated as

eligible both by the Chief of the Army Staff as well as by the

Government of India. He relies on the decision of this Court in

Anil Kumar Gupta v. Municipal Corporation of Delhi, 2000 (1) SCC

128. The criterion that the officer should be fit in every

respect for such appointment stipulated in the Government of

Indias letter dated October 20, 1986 clearly indicates that the

post of Army Commander is a non-selection post. In contrast, the

nature of selection posts in the Army should be gathered from the

selection system.

The hierarchy in the Army and the method of selection and

promotion to various posts starting from the post of Lieutenant

and going up to the post of the Chief of the Army Staff will

clearly indicate that the posts of Lieutenant, Captain and Major

are automatic promotion posts on passing the promotion

examination irrespective of inter se merit, whereas the posts

from Major to Lt. Colonel, Lt. Colonel to Colonel, Colonel to

Brigadier, Brigadier to Major General and Major General to Lt.

General are all selection posts filled up by promotion on the

basis of relative merit assessed by the designated selection

boards. From Lt. General [Corps Commander] to Army Commander is

a non-selection post to which promotion is made subject to

fitness. It is promotion subject to fitness in all respects,

although the rank remains the same. From the post of Army

Commander to that of the Chief of the Army Staff, it is by

promotion for which no specific criteria have been laid down.

There have been precedents where the senior-most Army Commanders

have not been appointed as the Chief of the Army Staff.

Selection implies the right of rejection depending upon the

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criteria prescribed. Selection for promotion is based on

different criteria depending upon the nature of the post and

requirements of the service. Such criteria fall into three

categories, namely,

1. Seniority cum fitness,

2. Seniority cum merit,

3. Merit cum suitability with due regard to seniority.

Wherever fitness is stipulated as the basis of selection, it is

regarded as a non-selection post to be filled on the basis of

seniority subject to rejection of the unfit. Fitness means

fitness in all respects. Seniority cum merit postulates the

requirement of certain minimum merit or satisfying a benchmark

previously fixed. Subject to fulfilling this requirement the

promotion is based on seniority. There is no requirement of

assessment of comparative merit both in the case of seniority cum

fitness and seniority cum merit. Merit cum suitability with due

regard to seniority as prescribed in the case of promotion to All

India Services necessarily involves assessment of comparative

merit of all eligible candidates, and selecting the best out of

them.

Shri Rao insisted that the letter dated October 20, 1986

containing the criteria for selection laid down by the President

for the Army Commander does not prescribe any minimum merit. In

fact the word merit is conspicuously absent from the entire

letter and the criteria do not postulate the comparative

assessment of merit for appointment as Army Commander or Lt.

Generals in the same rank.

Shri Rao further contended that the use of the word selection

in a rule or administrative instruction does not necessarily make

the post concerned a selection as has been contended by the

appellant. Nor the expression selection grade used by

respondent No.1 here and there makes the post in question a

selection post to be filled in by promotion on the basis of

comparative assessment of merit. In addition to the absence of

merit being one of the criteria for selection and promotion to

the post of Army Commander, the past practice as recorded by the

Defence Minister and concurrently found by the courts below shows

that the senior-most Lt. General who is found fit in all

respects for promotion according to the C.Rs. has always been

promoted.

Shri Rao also submitted that circular dated 28/16.10.1992 of the

Army Headquarters to the extent it applies to the appointment of

Army Commanders and is at variance with the letter dated October

20, 1986 setting out the criteria laid down by the President for

appointment of Army Commanders cannot be acted upon. In so far

as the said circular provides for appointment of Corps Commander

as the caption of the circular indicates, there will be no

conflict with the criteria laid down by the President for

appointment to the post of Army Commander. The absence of the

word seniority in the letter of the Government of India dated

October 20, 1986 does not exclude the right to prior

consideration flowing from being the senior-most officer entitled

to the considered in terms of Articles 14 and 16 of the

Constitution. The expression fitness in all respects or

merit or suitability is not synonymous. It was submitted on

behalf of respondent No.1 that an Army Commander having

experience of operations during war and extensive counter

insurgency may be more suitable for commanding the Army rather

than for an equivalent staff post at the Headquarters and vice

versa and that even the highest post in any organisation need not

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be a selection post to be filled on the basis of comparative

assessment of merit of eligible officers.

Shri Rao further elaborated that the post of Army Commander, even

if it is assumed, is selection post to be filled up on the basis

of comparative assessment of relative merit of officers, the

field of choice cannot be restricted to two persons only and

there were as many as nine Lt. Generals eligible for

consideration having had a residual service of two years and put

in at least one year as Corps Commander including respondent No.1

and respondent No.2. Admittedly seven out of nine officers were

not considered. The criteria adopted by the appellants are not

that of selection or assessment of relative suitability of

officers. According to Shri Rao, the expression relative

suitability of the officer does not mean the comparative

assessment of merit. It means suitability for the particular

command or the particular staff appointment as the case may be

and that suitability is related to the command in question or the

staff appointment in question and there is no mention of any

comparative assessment of merit even in that circular. Even that

circular does not itself lay down the two senior eligible

officers should be considered for each Army Commanders vacancy.

In refers to a pre- existing Government requirement without

mentioning any Government letter or circular. No such document

containing this requirement has been produced so far. The

so-called assessment of merit of respondent Nos.1 and 2 in the

instant case does not reveal all the facts or take into

consideration all the necessary facts that are required to be

taken note of. There are several factors available on record

such as Annexures 1, 2 and 3 of his representation to the

Attorney General and Annexure C to the written submissions which

will clearly indicate that the Government has not taken note of

all the factors in making the appointment in question. Shri Rao

submitted that advisory remarks are not adverse remarks and they

cannot be relied upon for denying the promotion to an officer

declared fit for promotion in all respects for that very post and

that the reports which are too stale and remote cannot be dug up

to change the settled inter se merit of officers assessed by as

many as five selection boards for successive promotions from the

ranks of Major to the rank of Lt. General all of which are

selection posts. Advisory remarks of the Reviewing Officer in

the CR of respondent No.1 for 1971 were never communicated to

respondent No.1 and, therefore, the same could not be relied upon

against him. Another submission that has been made by Shri Rao

is that consent to go on deputation cannot take away the right to

be considered for promotion and if selected for promotion and

that the policy regarding willingness certificate cannot in any

event hold good beyond the normal tenure of three years of

officers sent on foreign assignments in public interest and if

the post of Army Commander is a non-selection post to which

appointment has to be made on the basis of seniority subject to

fitness in all respects and fulfillment of both these criteria

having already been held in his favour by the Chief of the Army

Staff, the High Court was justified in issuing the writ.

The matter put before this Court in the light of the arguments

advanced on behalf of the parties and the pleadings raised or the

findings recorded by the High Court, we have to consider the same

from five facets of the case:

[i] Whether the Army Commander holds a selection post or one

which is based on seniority but the officer should be fit in

every respect for such appointment and should have a minimum of

two years before retirement from the date of appointment as Army

Commander/VCOAS?

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[ii] Whether the instructions given on October 16, 1992 are

executive instructions not supportable in law which stipulate

that an officer to be eligible to the post of Corps Commander

should either be eligible to become an Army Commander or should

have a minimum of four years residual service on the date he is

promoted to the rank of Lt. General and should have commanded a

Corps for at least one year?

[iii] What is the effect of the ACRs recorded by the Chief of the

Army Staff?

[iv] What is the effect of waiver granted to Lt. General R.S.

Kadyan when he was a Brigadier serving in the Embassy of France?

[v] Whether the Cabinet Secretary is justified in taking into

consideration the service profiles of Lt. General R.S. Kadyan

and Lt. General H.R.S. Kalkat in making his recommendations?

Several decisions have been cited before us on either side by the

learned counsel appearing in this case but we are not adverting

to the same since we are not in any way detracting from the

principles stated therein nor are we enunciating any new

principle. Moreover, we are deciding on the special features

arising in this case.

On October 20, 1986 criteria of appointment of Army Commander was

issued purported to be under the orders of the President of India

and such criteria is as follows :-

(a) The officer should be fit in every respect for appointment; and

(b) The officer should have a minimum of two years left before

the retirement age from the date of appointment as Army

Commander/VCOAS.

(c) This will be applicable w.e.f. 1.1.1988

(d) As a one time exception, the pay but not the status of an

Army Commander will be given to those General officers, presently

holding the rank of Lt. Gen., who are otherwise found fit to

hold the appointment but are not selected because of the revision

in the criteria.

(e) The officer should have commanded a Corps for at least one

year so as to become eligible for appointment as Army

Commander/VCOAS. No waiver in this stipulation will be allowed

without prior concurrence of the Government. [added on November

18, 1996 pursuant to letter No. 19(24)/96/D(MS) issued by

Government of India, Ministry of Defence.] (Emphasis supplied)

On the basis of this letter the argument advanced before us is

that the appointment to the post of Army Commander is of

selection and not a mere promotion on the basis of seniority. It

is urged on behalf of the Union of India and Lt. General H.R.S.

Kalkat is that the post of Army Commander is a selection post and

not a post merely based on seniority. While Shri P.P. Rao,

learned senior Advocate for the contesting respondents, submitted

that what is required in this letter is only that a concerned

officer should be fit in every respect and should have fulfilled

the other requirements. Though diametrically opposite views are

stated, on a careful reading of this letter it becomes clear that

an officer should be fit in every respect for such appointment

will not merely mean that he must be physically fit or mentally

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fit but in every other respect. In addition, in clause (d) above

in the letter while making certain exceptions what was in the

mind of the authority is made clear that an officer holding the

rank of Lt. General who is otherwise fit but not selected

because of the revision of criteria will be a clear indication

that it is a selection and not a mere promotion on the basis of

seniority. Further, the expression fit has been brought to our

notice as legally meaning fit to be chosen by elaborating the

expression eligible in Strouds Judicial Dictionary, 5th Edn.

However, the expression fit, which has different shades of

meanings, also means a person to be appointed shall be legally

eligible and eligible has already been explained by us to mean

fit to be chosen. Again, the expression select means chosen

or picked up. Therefore, we are of the view that to the post of

Army Commander, selection has to take place. Of course,

considering the nature of rigorous standards adopted in the

matter of selection of officers from the stage of Lt. Colonel

onwards upto the stage of Lt. General in the usual course it may

be that the senior most officer is selected as the Army

Commander. But that does not debar the Chief of the Army Staff

or the Union of India in making the selection of any other person

for good reasons who fulfills the necessary criteria. Therefore,

we are of the opinion that it was improper on the part of the

High Court to have concluded that the post of Army Commander is a

non-selection post. Further, the conclusion reached by the High

Court that appointment to the post of Army Commander has to be

made on the basis of seniority alone cannot be accepted.

The next question, which we have to consider, is what is the

nature of the executive instructions that have been given. Even

if we accept the view taken by the High Court that Army

Headquarters communication in this regard merely amounted to an

executive instruction and not supported by any orders made by the

President of India or the Government of India, the learned

Attorney General submitted that the other parameters that are

clearly laid down in the letters of the Government of India

should be strictly followed, that is, all officers who are likely

to be eligible for an Army Commander appointment in terms of two

years residual service will have to be given command of a Corps

and unless such officer has commanded the Corps for at least one

year he cannot be considered for promotion. In the present case,

respondent No.1 became a Corps Commander on September 24, 1997

and the vacancy in the post of Army Commander arose on March 1,

1998 and thus he had not completed one year of experience as a

Corps Commander and he had put in 5 months and 7 days experience

and to this if we add the waiver granted by the Government in

terms of 6 months, it will only be 11 months and 7 days

experience. Even so, he falls outside the zone of consideration

for being appointed as an Army Commander. However, much argument

was addressed on the effect of the recommendation made by the

Chief of the Army Staff and the order made by the Government of

India in that regard. On November 6, 1998 the Chief of the Army

Staff recorded a note in the following terms :- In view of the

above, I recommend that redress be granted to tbe Gen officer by

way of granting 6 months AE waiver to him for consideration for

promotion to the appointment of Army Cdr/VCOAS for a vacancy

occurring on 01 Mar 98.

The argument addressed is that the waiver granted by the

Government is identical with the consideration of his case for

appointment as Army Commander inasmuch as waiver has been granted

for the purpose of considering his case to the post of Army

Commander it is contended that his case should have been

considered. We fail to appreciate this line of argument. The

basis upon which the High Court proceeded is that having taken

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all the issues into consideration the respondents have taken a

stand totally contrary to the recommendations of the Chief of the

Army Staff as well as the Ministry of Defence. The absence of

the concerned officer from India on an assignment in the Embassy

of France, the waiver granted only for a period of six months and

other various factors taken into account are also set out in the

following terms :-

In view of the above detailed examination of the case,

CAB is of the view that Lt. Gen R.S. Kadan, VSM, be

granted waiver of six months in tenure of GOC 1 Corps

and considered for the appointment of GOC-IN-C

Eastern Command as the Gen Offr is not completing

AE criteria due to :-

(a) Delayed repatriation from France resulting in -

(b) Delayed placement on criteria appointment in the rank of Maj

Gen.

(c) Delayed consideration for promotion to the rank of Lt Gen and

(d) Revision of FIT grading to Deferred, which resulted in

(e) Further delay in consideration, approval and placement as GOC

Corps, and

(f) Application of new clause vide MOD letter of 18 Nov. 96, the

provisions of which only exclude him in 1962 batch vis-à-vis his

batchmates.

All the above events were beyond the control of the complainant

and were basically caused by the administrative constraints of

the organisation. Hence, the Gen Offr deserves the benefit of

grant of waiver in terms of natural justice and equal rights,

clause of the law.

But whatever may be the circumstances or the period for which he

fell short the waiver granted is only for a period of 6 months.

If that is so, respondent No.1 cannot be said to have completed

the period of one year of experience as Corps Commander.

Further, Lt. General R.S. Kadyan was considered by the

Selection Board and found fit on April 10, 1997 but he could not

be promoted as Lt. General and appointed as Corps Commander

because of stay order passed by the Delhi High Court in the writ

petition filed by Lt. General H.S. Bagga. The said order was

vacated and thereafter Lt. General R.S. Kadyan was promoted on

September 24, 1997 and he functioned as Officer In-charge 1 Corps

with effect from August 23, 1997 without any effect on promotion,

pay or any related benefits till he was actually promoted on

September 24, 1997. Lt. General R.S. Kadyan was appointed as

GOC 1 Corps after the stay was vacated on September 24, 1997.

Hence that period including the period of waiver falls short of

the requisite period of two years.

On 5.10.97, respondent No.1 made a statutory complaint that his

case should be considered on the basis of merit-cum-seniority

subject to being found fit for promotion and ultimately prayed

for the following :

(1) The decision to defer his case in connection with the

selection board met on October 31, 1996 may be reviewed and if he

is deemed to have been placed in command of a corps

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retrospectively from the date of declaration of the results of

that Selection Board.

(2) In the alternative, he prayed that the stipulation of

commanding of a corps for minimum one year to become eligible for

appointment as an Army Commander under the letter dated November

18, 1996 may be waived in his case as the delay in his promotion

seems to have been caused entirely in the interest of service.

The Chief of Army Staff recommended waiver of this stipulation

contained in the letter dated November 18, 1996 limiting to a

period of six months. Therefore, the conclusion of the High

Court that he became eligible to be considered to the higher post

does not seem to be valid nor the High Court was justified in

proceeding on that basis. The conclusion of the High Court to

that extent is erroneous.

The ACR for the period 1.10.1997 to 31.1.1998 is to the effect

that he considered him fit in every way to hold his present rank

and also to the next higher rank. On this basis, it is contended

that the Chief of the Army Staff having recommended his case in

the ACR as fit for promotion could not alter the same

subsequently and give a finding that such a recommendation in ACR

will have a limited effect. The position in law is that

appraisal report or an annual confidential report is not the sole

factor to be considered by the selection authority but one of the

matters to be taken note of by such authority. We may advert to

two decisions of this Court in this regard, namely, AVM

S.L.Chhabra v.Union of India, 1993 (Supp.) 4 SCC 441 and Union of

India vs. Samar Singh, 1996 (10) SCC 555. Therefore, we are of

the view that heavy reliance placed by the High Court on the ACRs

to reach the conclusion otherwise is not justified. In deciding

whether a post is a selection post or not, one of the criteria to

be considered is if it involves a comparative assessment of

officers necessarily the element of selection is involved and,

therefore, the post with which we are concerned is indeed a

selection post although not totally ignoring a senior.

In raising an argument that respondent No.1 being the

senior-most officer in the cadre was being considered for the

next higher post. The post in question being a selection post

for purposes of promotion, the contention advanced is that all

the eligible candidates in that cadre should have been considered

and consideration of only two candidates, namely, the appellant

in one of the cases and respondent No.1, alone could not meet the

necessary criteria. This contention does not also hold water

because no one else has made a complaint and the case of

respondent No.1 has been duly considered. Thus the argument

advanced by Shri P.P.Rao on this aspect does not stand to reason.

Now we come to the last aspect of the matter, namely, the manner

in which the Cabinet Secretary examined the service profiles of

the two officers in question. For purposes of convenience, we

may set out the relevant portion of the note:

Lt. Gen. RS Kadyan:- He was commissioned in the Rajputana

rifles regiment of the Infantry in June, 1962 and has held

various Command, Staff and Instructional appointments. He picked

up the rank of Lt. Gen. On 24th September, 1997 and started

functioning as regular Corps Commander. The General Officer has

a balance exposure in Command, Staff and Instructional

appointments. However, his staff experience in senior ranks from

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Brig. onwards is only limited to that of Military Attachee. He

has no experience of working in Northern Command and Army

Headquarters. Since 1980 he has worked for about 4 years in

field areas. It also appears from his records that he did not

participate in 1962, 1965 operations. In his report of 1971,

when he participates in the operations, there are some advisory

remarks both by the IO and RO as below:-

should be bold and aggressive in operation . Should lead

his mean personally to difficult objectives. (Remarks by IO).

.. his performance as a Rifle Coy Commander in the recent

operations has been satisfactory though not upto the expected

level. (Remarks by RO).

The overall profile of the officer, especially in senior ranks

has been clearly above average. All the reporting officers gave

him above average ratings with sprinkling of outstanding ratings.

As regards CI operations, the officer has handled the same as IG

North, Assam Rifles, but he has not had experience of commanding

a regular Army Division. His experience as Corps Commander is

also limited. He is a graduate of Staff College and has also

done higher command courses. He is recipient of Chiefs

Commendation, VSM and AVSM. He is medical category SHAPE- 1.

Lt. Gen HRS Kalkat: - He was commissioner in Maratha Light

Infantry in June, 1962. He became Lt. Gen in Feb, 1996 and

since then he is commanding 33 Corps in the Eastern Sector. The

general officer has rich experience in Command and Staff

appointments. He has worked both in Eastern and Northern

Commands including high altitude areas. Since 1982 he has worked

for about 4 years in remote field areas in the Eastern Sector,

especially the border areas with China. He has also held

important staff assignments in Military Operations, Infantry and

Staff Duties, Directorates in the Army Headquarters. His

instructional experience is however limited to junior ranks only

and he has practically no experience of CI operations.

The officer did not participate in 1962 and 1965 operations. His

report of 1971, the year in which operations took place is quite

laudatory. The overall profile of the officer, especially in

senior ranks has been clearly above average. All reporting

officers have given him above average ratings with sprinklings of

outstanding ratings. He is a graduate of Staff College and has

also done Senior Commands and NDS Courses. He is also a

recipient of AVSM. He is medical category SHAPE-1.

The contention put forth before us is that there are factual

inaccuracies in the statement recorded by the Cabinet Secretary

in his note and, therefore, must be deemed to be vitiated so as

to reach a conclusion that the decision of the Government in this

regard is not based on proper material. The learned Attorney

General, therefore, took great pains to bring the entire records

relating to the relevant period which was considered by the

Cabinet Secretary and sought to point out that there were notings

available on those files which justify these remarks. Prima

facie, we cannot say, having gone through those records, that

these notings are baseless. Critical analysis or appraisal of

the file by the Court may neither be conducive to the interests

of the officers concerned or for the morale of the entire force.

May be one may emphasize one aspect rather than the other but in

the appraisal of the total profile, the entire service profile

has been taken care of by the authorities concerned and we cannot

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substitute our view to that of the authorities. It is a

well-known principle of administrative law that when relevant

considerations have been taken note of and irrelevant aspects

have been eschewed from consideration and that no relevant aspect

has been ignored and the administrative decisions has nexus to

the facts on record, the same cannot be attacked on merits.

Judicial review is permissible only to the extent of finding

whether process in reaching decision has been observed correctly

and not the decision as such. In that view of the matter, we

think there is no justification for the High Court to have

interfered with the order made by the Government.

Before parting with the case we need to observe that considering

the nature of the sensitivity of the posts involved and that each

of the officer feeling that he did not get the best of the deal

at the hands of the Government or that the members of the force

being aware who is the best is not heading them will certainly

weaken the esteem and morale of the force. Therefore, the

standards to be adopted and applied should be of the highest

order so as to avoid such an impression in the force.

In the result, we allow the appeals filed by the Union of India

and Lt. Gen. H.R.S. Kalkat and set aside the orders made by

the High Court and dismiss the writ petition filed by respondent

No.1.