LT GEN RAVI DASTANE, AVSM, VSM versus UNION OF INDIA, MINISTRY OF DEFENCE, THROUGH THE SECRETARY & ORS. on 1 March 2019

[2019] 2 S.C.R. 821

LT GEN RAVI DASTANE, AVSM, VSM

v.

UNION OF INDIA, MINISTRY OF DEFENCE, THROUGH THESECRETARY & ORS.

(Civil Appeal No. 9721 of 2014)

MARCH 01, 2019

[DR. DHANANJAYA Y CHANDRACHUD ANDHEMANT GUPTA, JJ.]

Armed Forces:

Army Commander – Post of – Appointment – Relevant criteria,seniority or selection – Held: An officer has no vested right to claimpromotion on the basis of seniority alone, however, that does notmean that the authority entitled to make the appointment must ignoreseniority – Officers of the Army who attain the rank of LieutenantGeneral progress through the hierarchical structure after fulfillingrigorous criteria of assessment – Principle that the appointment ofan Army Commander is made by selection does not require that thecriterion of seniority should be ignored – Seniority may be a relevantconsideration – Seniority brings with it experience of organisation,experience in handling situations and experience in perspectiveand planning – Post, however, remains a selection post – On facts,tribunal rightly rejected the challenge to selection of two LieutenantGeneral-third and fourth respondents as Army Commanders – Itcannot be said that the appointment of the third and fourthrespondents was based exclusively on seniority or in violation ofthe norms governing appointment to a selection post by promotion– There was no breach of the Government of India (Transaction ofBusiness) Rules, 1961 – Appointment of the third and fourthrespondent duly approved by the Appointments Committee of theCabinet.

Dismissing the appeal, the Court

HELD : 1.1 The emphasis on fitness in every respect is anindicator that the post is a selection post. This is buttressed byclause (d) of the letter dated 20 October 1986 which contemplatesa one-time exception to officers who were otherwise found fit butwere not selectedbecause of the revision in the criteria. An officerhas no vested right to claim promotion on the basis of seniority

821

A

B

CDEF

G

H

Aalone. But that does not mean that the authority entitled to makethe appointment must ignore seniority. Officers of the Army whoattain the rank of Lieutenant General progress through thehierarchical structure after fulfilling rigorous criteria ofassessment. The principle that the appointment of an ArmyCommander is made by selection does not require that theBcriterion of seniority should be ignored. The decision in Kadyancase, while emphasizing that the appointment of ArmyCommanders is made by selection, holds that an officer does nothave a vested right to claim to be promoted only by dint ofseniority. The principle that seniority alone does not confer aCright to appointment to a selection post does not mean that theauthority making the appointments must be oblivious to seniority.Placed below the COAS, the post of Army Commander is ofcrucial significance to the organizational structure of the Army.Seniority may be a relevant consideration: seniority brings with it experience of organisation, experience in handling situationsDand experience in perspective and planning. The post, however,remains a selection post. In making appointments to such crucialposts which carry enormous functional responsibilities bearingon the defence needs of the Armed Forces and ultimately of thenation, a range of relevant considerations can be borne in mind.EIt would not be appropriate in the course of judicial review toconfine the appointing authority to a narrow range ofconsiderations. The appointing authority is best suited todetermine who among the officers in the rank of LieutenantGeneral is suited for appointment against a vacancy. [Para 21][833-C-H]F

1.2 The submission of the appellant that the appointmentof the third and fourth respondents was based exclusively onseniority without a comparative evaluation of the officers whofulfilled the conditions of eligibility is sought to be advanced onthe basis of the order of the Union government dated 31.01.2013,Grejecting the statutory complaint of the appellant. The reasonsfor the rejection of the statutory complaint cannot be read to meanthat the selection of the third and fourth respondents asArmy Commanders was based solely on their seniority,without regard to merit or to a comparative evaluation.[Para 22, 23][834-A-B; 835-C]H

1.3 While recommending the name of the third and fourthrespondents, the COAS had the service profile of seven officersin the rank of Lieutenant General. Two of the seven officers hada shortfall in the period of one year prescribed as CorpsCommander. The service profile together with the CR dossiersof the seven officers were forwarded by the COAS to the DefenceMinister. Before the Defence Minister endorsed the proposalfor the appointment of the third and fourth respondents, he wasapprised in writing of the fact that five officers fulfilled the criteriaprescribed of having a minimum two years’ service left beforethe age of retirement from the date of appointment as an ArmyCommander and that the officers had commanded a Corps for atleast one year. The file indicates that “as per practice, ArmyCommanders are appointed on the basis of seniority subject tofulfilling the above mentioned criteria”. This practice wasadverted to in the judgment of this Court in Kadyan case whereit was observed that considering the nature of the rigorousstandards adopted in selecting officers upwards from the stageof Lieutenant Colonel up to the stage of Lieutenant General, inthe usual course it may be that the senior most officer is selectedas the Army Commander. Having adverted to this practice, thisCourt held that it does not debar the COAS or the Union of Indiafrom making the selection of any other person who fulfills thenecessary criteria, for good reasons. [Para 24][835-H; 836-A-D]

1.4 The service profile of seven officers was taken intoaccount by the COAS in making a recommendation. This serviceprofile was forwarded to the Defence Minister together with therecommendation of the COAS for the appointment of the thirdand fourth respondents. The Defence Minister was apprised ofthe fact that five officers in the rank of Lieutenant General fulfilledthe requirements under the criteria governing selection to thepost of Army Commander. Moreover, when the proposal wasplaced for approval before the Appointments Committee of theCabinet-ACC, the fact that five officers fulfilled the criteriaprescribed was a matter which was specifically adverted to,together with the recommendation of the COAS (approved bythe Defence Minister) for the appointment of the third and fourthrespondents. The appointment of the fourth respondent was A

B

C

D

E

F

G

H

Aapproved by the ACC and the decision was notified by the CabinetSecretariat on 24 May 2012. Following the lifting of the type A-discipline and vigilance ban, the ACC approved the appointmentof the third respondent, which was notified by the CabinetSecretariat on 15 June 2012. It cannot be said that theappointment of the third and fourth respondents was basedBexclusively on seniority or in violation of the normsgoverning appointment to a selection post by promotion.[Para 25, 26][836-E-H]

1.5 There has been no breach of the Government of India(Transaction of Business) Rules, 1961. The appointment of theCthird and fourth respondents was duly approved by the ACC. TheACC was apprised of material facts before its approval wascommunicated. [Para 27][837-E]

1.6 An attempt was made to urge that the policy decisiondated 16 October 1992 indicates that “there is a governmentDrequirement to suggest two senior eligible officers for each ArmyCommander’s vacancy”. The policy decision dated 16 October1992 deals with appointment of Corps Commanders. Paragraph7 is titled “Parameters for appointment of Corps Commanders”.It lists out “factors affecting appointment of Corps Commanders”.EIn that context para 7(d) indicates the existence of a requirementto suggest two senior eligible officers for each vacancy of ArmyCommander. The above “requirement” is directory. Moreover,as the tribunal held, the extension of the zone of considerationby considering the service profile of seven officers has causedno prejudice to the appellant. The finding of the tribunal in thisFregard cannot be faulted. [Para 28][837-F-H]

1.7 The appellant as well as the third and fourth respondentshave since retired from service. The third respondent retiredfrom service as COAS. The appeal was admitted to hearing by anorder of this Court dated 13 October 2014, after the retirementGof the appellant on 30 September 2014. The appellant submittedthat the grievance of the appellant should be considered, sincethe claim made by him to a rank is involved. In order to renderfinality to the grievance which has been raised before this Court,the challenge is addressed on merits and no substance has beenfound in it. [Para 29][838-A-C]H

LT GEN RAVI DASTANE, AVSM, VSM v. UOI, MINISTRY OFDEFENCE

Union of India v Lt Gen Rajendra Singh Kadyan (2000)6 SCC 698 : [2000] 1 Suppl. SCR 722 – relied on.

Case Law Reference

[2000] 1 Suppl. SCR 722relied on.Para 21, 24CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9721of 2014.

From the Judgment and Order dated 06.09.2013 by the ArmedForces Tribunal, Principal Bench, New Delhi in O.A. No. 426/2012 withM.A. No. 50/2013.

R. K. Anand, Uday Gupta, Ms. Shivani Lal, Hiren Dasan,M. K. Tripathi, Mohan Pandey, Advs. for the Appellant.

Ms. Madhavi Divan, ASG., R. Bala, Sachin Sharma, MukeshKumar Maroria, Advs. for the Respondents.

The Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, J.

1. By the present appeal[1], Lieutenant General Ravi Dastane hasquestioned the correctness of a judgment dated 6 September 2013 ofthe Principal Bench of the Armed Forces Tribunal[2]. The AFT rejectedhis challenge to the selection of Lieutenant General Dalbir Singh, GOC-in-C, Eastern Command and Lieutenant General Sanjiv Chachra, GOC-in-C, Northern Command as Army Commanders. After the decision ofthe AFT, Lieutenant General Dalbir Singh (the third respondent) wasappointed as Chief of Army Staff[3] and retired from service on31 December 2016. Lieutenant General Chachra retired from serviceon 31 May 2014. The appellant retired from service on 30 September2014.

2. There are seven Army Commanders and one Vice Chief ofArmy Staff in the structure of the Indian Army. Six of them commandthe six regional commands of the Army while the seventh commandsthe Army Training Command. The position of Vice Chief of Army Staffis equivalent to an Army Commander. The post of Army Commander/Vice Chief of Army Staff, in the rank of Lieutenant General, is the secondhighest in the hierarchy of the Indian Army, below the Chief of ArmyStaff. Promotion to the post of Army Commander (General OfficerCommanding in Chief) is by selection from amongst officers holding therank of Lieutenant General, who fulfill the eligibility criteria.

1 The Civil Appeal was admitted for hearing on 13 October 2014.

2 AFT

3 COAS

A

B

C

DE

F

G

H

A3. On 22 March 2012, General V K Singh, as Chief of ArmyStaff, examined a proposal for filling up vacancies in two posts of ArmyCommander which were to arise on 1 June 2012 on the impendingretirement of Lieutenant General S R Ghosh, GOC-in-C, WesternCommand and the appointment of Lieutenant General Bikram Singh,GOC-in-C, Eastern Command as COAS on 31 May 2012. A seniorityBlist of officers in the cadre of Lieutenant General was placed on file.Seven of the senior-most amongst them, who fulfilled the conditionsstipulated for promotion as Army Commanders were listed out. Theseven officers were:

1. Lt Gen Dalbir Singh;C

2. Lt Gen Sanjiv Chachra;

3. Lt Gen RP Dastane;

4. Lt Gen JP Nehra;

5. Lt Gen Philip Campose;

D6. Lt Gen AS Chabbewal; and

7. Lt Gen Ashok Singh.

4. The service profiles of the seven officers were forwardedtogether with the recommendation of the COAS that the third respondentbe appointed as GOC-in-C, Eastern Command and the fourth respondentEbe appointed as GOC-in-C, Western Command. The COAS certifiedthat no administrative, disciplinary or vigilance proceedings were pendingor contemplated against them.

5. A Court of Inquiry was convened on the directions of the ArmyCommander, Eastern Command to investigate certain incidents whichoccurred at Dimapur, involving army personnel and civilians on 20-21FDecember 2011. On 18 April 2012, the proceedings of the Court ofInquiry were forwarded to Army Headquarters.

6. The proposal for the appointment of the third respondent asArmy Commander was processed on 2 May 2012 in the Ministry ofDefence (MOD) and was endorsed by the Defence Minister on 5 MayG2012. The proposal for the appointment of third respondent as ArmyCommander of the Eastern Command was forwarded to the CabinetSecretary for approval by the Appointments Committee of the Cabinet[4].On 8 May 2012, the proposal in respect of the fourth respondent forappointment as Army Commander of the Western Command wasforwarded.H

4 ACC

7. On 19 May 2012, a notice to show cause was issued by theCOAS to the third respondent. A discipline and vigilance[5] ban wasimposed.

8. On 24 May 2012, when the proposal was under examinationwith the Cabinet Secretariat, an intimation was issued by the ArmyHeadquarters to the Ministry of Defence in regard to the imposition of aType A discipline and vigilance ban on the third respondent. Accordingly,on 29 May 2012, the Defence Minister decided to recommend to theACC that the proposal for the appointment of the third respondent bekept on hold until further inputs were received from the ArmyHeadquarters. On 7 June 2012, the Army Headquarters informed theMinistry of Defence that the case against the third respondent had beenclosed and that the discipline and vigilance ban had been lifted. In viewof this development, the Defence Minister approved the proposal forconveying the lifting of the ban to the ACC.

9. On 15 June 2012, the ACC approved the appointment of thethird respondent as Army Commander.

10. On 1 June 2012 and 5 July 2012, the appellant submittedrepresentations to the COAS and to the Defence Minister followingwhich, on 6 August 202, he filed a statutory complaint. On 31 January2013, the Union government rejected the complaint.

11. In the meantime, the appellant filed an Original Applicationbefore the AFT[6] seeking the following reliefs:

(i) Quashing of the appointments of the third and fourthrespondents as Army Commanders;

(ii) A direction to the Union of India to consider eligible officers,including the appellant, for the post of Army Commander whichfell vacant on 1 June 2012 in accordance with the procedureprescribed in the letter dated 20 October 1986 of the Uniongovernment to the COAS together with a policy decision dated16 October 1992; and

(iii) In the alternative, to grant the appellant the status of an ArmyCommander with effect from 1 June 2012 based on theineligibility of the third respondent and to appoint the appellantas Army Commander against the next available vacancy on 1February 2013.

5 DV

6 OA No. 426 of 2012

A

B

C

D

E

F

G

H

A12. Pleadings were completed before the AFT. On 6 September2013, the AFT dismissed the OA on the ground that the decision to appointthe third and fourth respondents as Army Commanders was made onthe basis of a comparative study of merit of all the officers in the zone ofconsideration and that no prejudice was caused to the appellant. TheAFT held that the ACC approved the appointment of the third and fourthBrespondents as Army Commanders following the recommendation ofthe Ministry of Defence and that the procedure stipulated forappointments to the post was duly followed. The AFT held thus:

“…it is necessary to examine the record which has been produced.From the record, it appears that for making the selection to theCpost of Army Commanders, an exercise was undertaken by theChief of Army Staff by short listing seven Lt. Generals who fulfilthe eligibility criteria. While considering the case of the officers,the note – III of the recommendation of the Chief of Army Staffclearly reflects that the service profile and paramount cards ofDthe seven Lt. Generals were examined by him. Complete serviceprofile of all the seven Lt. Generals were examined by the Chiefof the Army Staff. It includes the exposure of the officer tocommand, staff assignment, instructional assignments, the detailsof which were given in the profile of all these officers…Afterconsideration of service profile, he recommended the names ofErespondents No. 3 & 4 for the appointment as Army Commandersof Eastern Command and Western Command respectively.

…From the record itself it is clearly revealed that in both the tierof selection, the Chief of Army Staff and Ministry of Defence,the service profile of the petitioner was considered along withFother officers.”

13. Before we deal with the submissions which have been urgedon behalf of the appellant, it would, at the outset, be necessary to advertto the provisions governing the appointment of Army Commanders. On20 October 1986, the Government of India in the Ministry of Defenceissued a communication through its Joint Secretary to the COAS statingGthat the President of India had prescribed criteria for the appointment ofArmy Commanders and Vice Chiefs of Army Staff. They wereformulated in the following terms:

“a) The officer should be fit in every respect for suchappointment and H

b) The officer should have a minimum of two years left beforethe retirement age from the date of appointment as ArmyCommander/ 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 ArmyCommander will be given to those General officers, presentlyholding the rank of Lieutenant gen, who are otherwise found fit tohold the appointment but are not selected because of the revisionin the criteria. “

On 18 November 1996, an additional requirement, in the form ofclause (e), was inserted by the Union government in the earlier letterdated 20 October 1986:

“(e) The officer should have commanded a Corps for at least oneyear so as to become eligible for appointment as Army Commander/VCOAS. No waiver in this stipulation will be allowed withoutprior concurrence of the Government.”

14. The appellant has relied on a policy decision/circular dated 16October 1992. The policy circular adverts to the norms prescribed on 20October 1986 for the appointment of Army Commanders/VCOAS. Thecircular states that since commanding a Corps is a pre-requisite forpromotion as Army Commander, it was essential to clarify the parametersfor appointment of Corps Commanders. Paragraph 7 lays down theparameters for appointment of Corps Commanders. The appellant hasrelied on the following:

“d) There is a Govt requirement to suggest two senior eligibleofficers for each Army Commander’s vacancy. It is, therefore,essential that when an Army Commander’s vacancy arises, thetwo senior most officers who are eligible, in terms of the residualservice rule, have completed command or are in command of aCorps.”

We proceed to elucidate the submissions which were urged during thecourse of the hearing.

15. Mr RK Anand, learned Senior Counsel appearing on behalf ofthe appellant urged the following submissions:

(i) The letter dated 20 October 1986 indicates that theappointment of Army Commanders is by selection and not A

B

C

D

E

F

G

H

Aon the basis of seniority. This has been reiterated in thedecision of a three Judge Bench of this Court in Union ofIndia v Lt Gen Rajendra Singh Kadyan[7](“Kadyan”);

(ii) While rejecting the statutory complaint submitted by theappellant, the Union government in the Ministry of DefenceBin its letter dated 31 January 2013 noted that the proposalsubmitted by COAS was “found to be based on seniority”.In appointing the third and fourth respondents as ArmyCommanders, the Union government overlooked therequirement of selection and placed reliance exclusively ontheir seniority;C

(iii) In assigning exclusive weight to the seniority of the third andfourth respondents, there was no evaluation of thecomparative merit of the officers in the zone of considerationwho fulfilled the requirements for selection as enunciated inthe letters dated 20 October 1986 and 18 November 1996;D(iv)The names of two senior eligible officers were notrecommended against each vacancy as mandated by thepolicy decision dated 16 October 1992; and

(v) Under the Government of India (Transaction of Business)Rules 1961, the authority to select an officer for appointmentEas Army Commander vests with the ACC. The DefenceMinister recommended only two candidates namely, the thirdand fourth respondents, thereby depriving the ACC of itsauthority to choose the best amongst available officers inthe zone of consideration.

16. On the other hand, Ms Madhavi Divan, learned AdditionalFSolicitor General of India, submitted that:

(i) The appeal has been rendered infructuous in view of thesuperannuation of the appellant as well as the thirdrespondent;

(ii) The case of the appellant is that since a Type A DV ban hadGbeen imposed on the third respondent on 22 May 2012,effective from 18 May 2012, the respondents ought to haveimmediately appointed the appellant as Army Commandersince he was immediately next to the third and fourthrespondents in order of seniority; H7 (2000) 6 SCC 698

(iii) Contrary to (ii) above, the case of the respondents is thatthe DV ban was lifted on 1 June 2012 and by the time thethird respondent was appointed as Army Commander on 15June 2012 there was no bar on his appointment;

(iv) The appellant had no vested right to be appointed in theintervening period between the date of the ban and beforethe vacancy arose on 1 June 2012;

(v) The decision of this Court in Kadyan (supra) holds that thepost of Army Commander is a selection post. This Courtrejected the submission that appointment to the post of ArmyCommander must be based on seniority alone;

(vi) Hence, even assuming for the purpose of argument that thethird respondent could not have been appointed in view ofthe DV ban, the appellant had no vested right to selection asthe senior-most officer after the third respondent; and

(vii) On 2 May 2012, the complete service profile of seven officersin the cadre of Lieutenant General was forwarded to theDefence Minister by the COAS. Thereafter, upon dueconsideration by the Defence Minister, the third and fourthrespondents, who were the senior most officers, wererecommended to the ACC for approval. Even assumingthat the third respondent was rendered ineligible during theperiod of the DV ban, any of the remaining eligible officersholding the rank of Lieutenant General could have beenselected. The appellant had no vested right to be selectednor could he assume that he would be selected merelybecause he was the senior-most officer after the thirdrespondent.

17. During the course of the hearing, the file pertaining to theselection of the third and fourth respondents as Army Commanders hasbeen produced by the ASG.

18. Kadyan (supra), was a decision in an appeal from a judgmentof the High Court which held that the post of Army Commander shouldnot have been treated as a selection post and ought to have been filledby seniority. The view of the High Court was reversed by the threeJudge Bench of this Court. Elaborating on the criteria for appointmentof Army Commanders issued on 20 October 1986, this Court held thus:

A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

832 SUPREME COURT REPORTS [2019] 2 S.C.R.

A“..Though diametrically opposite views are stated, on a carefulreading of this letter it becomes clear that “an officer should be fitin every respect for such appointment” will not merely mean thathe must be physically fit or mentally fit but in every other respect.In addition, in clause (d) above in the letter while making certainexceptions what was in the mind of the authority is made clearBthat an officer holding the rank of Lieutenant General who isotherwise fit but not selected because of the revision of criteriawill be a clear indication that it is a selection and not a merepromotion on the basis of seniority. Further, the expression “fit”has been brought to our notice as legally meaning “fit to be chosen”Cby elaborating the expression “eligible” in Stroud’s JudicialDictionary, 5th Edn. However, the expression “fit”, which hasdifferent shades of meanings, also means “a person to be appointedshall be legally eligible” and “eligible” has already been explainedby us to mean “fit to be chosen”. Again, the expression “select”means “chosen or picked up”. Therefore, we are of the view thatDto the post of Army Commander, selection has to take place. Ofcourse, considering the nature of rigorous standards adopted inthe matter of selection of officers from the stage of LieutenantColonel onwards up to the stage of Lieutenant General in theusual course it may be that the seniormost officer is selected asEthe Army Commander. But that does not debar the Chief of theArmy Staff or the Union of India from making the selection ofany other person for good reasons who fulfils the necessary criteria.Therefore, we are of the opinion that it was improper on the partof the High Court to have concluded that the post of ArmyCommander is a non-selection post. Further, the conclusion reachedFby the High Court that appointment to the post of ArmyCommander has to be made on the basis of seniority alone cannotbe accepted.”

In Kadyan (supra), the view of the High Court that the appointment ofan Army Commander should not be made on the basis of selection butGon the basis of seniority alone was reversed by this Court.

19. Based on the rationale that the post is a selection post, theappellant assails the decision to appoint the third and fourth respondentsas Army Commanders on the ground that it was taken exclusively onthe basis of seniority, sans a comparative evaluation of the merits ofHother officers in the rank of Lt General who fulfilled the requirementsspelt out in the letters dated 20 October 1986 and 18 November 1996.

20. The letters dated 20 October 1986 and 18 November 1996 laydown the following criteria for appointment:

(i) The officer should be fit in every respect for appointmentas Army Commander;

(ii) The officer should have a minimum of two years’ serviceleft from the date of appointment as Army Commanderbefore attaining the age of retirement; and

(iii) The officer should have been a Commander of Corps forat least one year.

21. The emphasis on fitness in every respect is an indicator thatthe post is a selection post. This is buttressed by clause (d) of the letterdated 20 October 1986 which contemplates a one-time exception toofficers who were otherwise found fit but were not selectedbecause ofthe revision in the criteria. An officer has no vested right to claimpromotion on the basis of seniority alone. But that does not mean thatthe authority entitled to make the appointment must ignore seniority.Officers of the Army who attain the rank of Lieutenant General progressthrough the hierarchical structure after fulfilling rigorous criteria ofassessment. The principle that the appointment of an Army Commanderis made by selection does not require that the criterion of seniority shouldbe ignored. The decision in Kadyan (supra), while emphasizing that theappointment of Army Commanders is made by selection, holds that anofficer does not have a vested right to claim to be promoted only by dintof seniority. The principle that seniority alone does not confer a right toappointment to a selection post does not mean that the authority makingthe appointments must be oblivious to seniority. Placed below the COAS,the post of Army Commander is of crucial significance to theorganizational structure of the Army. Seniority may be a relevantconsideration: seniority brings with it experience of organisation,experience in handling situations and experience in perspective andplanning. The post, however, remains a selection post. In makingappointments to such crucial posts which carry enormous functionalresponsibilities bearing on the defence needs of the Armed Forces andultimately of the nation, a range of relevant considerations can be bornein mind. It would not be appropriate in the course of judicial review toconfine the appointing authority to a narrow range of considerations.The appointing authority is best suited to determine who among theofficers in the rank of Lieutenant General is suited for appointment againsta vacancy.

A

B

C

D

E

F

G

H

A22. The submission of the appellant that the appointment of thethird and fourth respondents was based exclusively on seniority withouta comparative evaluation of the officers who fulfilled the conditions ofeligibility is sought to be advanced on the basis of the order of the Uniongovernment dated 31 January 2013, rejecting the statutory complaint ofthe appellant. Emphasis has been laid on the following extract from theBorder dated 31 January 2013:

“3. The Statutory Complaint of the General Officer has beenexamined in detail and the following facts emerge:-

(i) The proposal seeking appointment of Lt Gen Dalbir SinghSuhag as GOC-in-C, Eastern Command and Lt Gen SanjivCChachra as GOC-in-C, Western Command in the rank ofArmy Commanders against the two vacancies occurringw.e.f. 1[st] Jun., 2012 was received in the Ministry onMarch 22, 2012. The proposal was duly recommended bythe COAS along with the certificate that no administrativeDplenary/vigilance, proceedings were pending or contemplatedagainst the two officers.

(ii) The proposal was examined in the Ministry with regard tothe availability of vacancy and eligibility of officers fulfillingthe prescribed criteria as laid down in policy letter No. 98684/EJS(Pay)/86 dated 20[th] October 1986 modified vide letterNo. 19(24)/96/d(MS) dated 18[th] November 1996. Theproposal was found to be based on seniority and theofficers were fulfilling the prescribed criteria.Accordingly, the proposal was mooted with the approval ofRaksha Mantri for the approval of the ACC vide MOD’s IDFnote No. 12(1)/2012-D(MS) dated 2[nd] May 2012.”(Emphasis supplied)

The order further records:

“4. It is on record that Lt Gen Dalbir Singh Suhag wassenior to Lt Gen Dastane and the proposal forGappointment of the former as Army Commander wasbeing processed but was only put on hold because of theDV Ban that came after the proposal had been referred tothe ACC for approval. On the date Lt Gen Dalbir Singh wasput under DV Ban, the ACC had not considered the samenor had made any decision thereon. The file was temporarily H

put on hold for seeking further details on the DV Ban fromthe AHQ. Admittedly, the DV Ban Type ‘A’ imposed on theofficer was recalled by an Order dated 07.06.2012 for beingillegal and against the established principles of the naturaljustice. This being the position unless the proposal of Lt GenDalbir Singh Suhag had been rejected by the CompetentAuthority, the subsequent consideration of other officer, doesnot arise. The request, therefore, of Lt Gen RP Dastane01.06.2012 has no basis.”

(Emphasis supplied)

23. The reasons for the rejection of the statutory complaint cannotbe read to mean that the selection of the third and fourth respondents asArmy Commanders was based solely on their seniority, without regardto merit or to a comparative evaluation. On the contrary, it has beenasserted in the counter affidavit which has been filed on behalf of theUnion government that:

“…in the present case as per records the then COASconsidered the profile of all eligible Lt Generals who weremeeting the laid down criteria including that of the appellant,and recommended the name of the Respondents No 3 and 4on 22.3.2012 for appointment to two posts of ArmyCommanders failing vacant, which was also examinedindependently and concurred by the Raksha Mantri afterconsidering the record of service profile of all seven officersincluding the appellant, and the recommendations to appointrespondents No 3 and 4 were approved by the ACC in termsof the Government of India (Transaction of Business) Rules,1961.”

Moreover, it has been submitted that:

“..in the present case the consideration took place in respectof seven eligible Lieutenant General’s including the applicantand out of seven, respondents 3 and 4 were recommendedby the COAS and the Government of India, Ministry ofDefence and approval was given by the ACC.”

24. The averments in the counter affidavit are borne out by thefile which has been produced before this Court. While recommendingthe name of the third and fourth respondents, the COAS had the serviceprofile of seven officers in the rank of Lieutenant General. Two of the A

B

C

D

E

F

G

H

Aseven officers had a shortfall in the period of one year prescribed asCorps Commander. The service profile together with the CR dossiers ofthe seven officers were forwarded by the COAS to the Defence Minister.Before the Defence Minister endorsed the proposal for the appointmentof the third and fourth respondents, he was apprised in writing of thefact that five officers fulfilled the criteria prescribed of having a minimumBtwo years’ service left before the age of retirement from the date ofappointment as an Army Commander and that the officers hadcommanded a Corps for at least one year. The file indicates that “asper practice, Army Commanders are appointed on the basis of senioritysubject to fulfilling the above mentioned criteria”. This practice wasCadverted to in the judgment of this Court in Kadyan (supra) where itwas observed that considering the nature of the rigorous standardsadopted in selecting officers upwards from the stage of LieutenantColonel up to the stage of Lieutenant General, in the usual course it maybe that the senior most officer is selected as the Army Commander.

Having adverted to this practice, this Court held that it does not debarDthe COAS or the Union of India from making the selection of any otherperson who fulfills the necessary criteria, for good reasons.

25. In the present case, it is evident that the service profile ofseven officers was taken into account by the COAS in making arecommendation. This service profile was forwarded to the DefenceEMinister together with the recommendation of the COAS for theappointment of the third and fourth respondents. The Defence Ministerwas apprised of the fact that five officers in the rank of LieutenantGeneral fulfilled the requirements under the criteria governing selectionto the post of Army Commander. Moreover, when the proposal wasFplaced for approval before the ACC, the fact that five officers fulfilledthe criteria prescribed was a matter which was specifically adverted to,together with the recommendation of the COAS (approved by theDefence Minister) for the appointment of the third and fourthrespondents. The appointment of the fourth respondent was approvedby the ACC and the decision was notified by the Cabinet Secretariat onG24 May 2012. Following the lifting of the type A DV ban, the ACCapproved the appointment of the third respondent, which was notified bythe Cabinet Secretariat on 15 June 2012.

26. The above sequence of events leads to the conclusion thatthere is no merit in the submission that the appointment of the third andHfourth respondents was based exclusively on seniority or in violation ofthe norms governing appointment to a selection post by promotion.

27. Mr RK Anand, learned Senior Counsel appearing on behalf ofthe appellant has adverted to the Government of India (Transaction ofBusiness) Rules, 1961. Rule 6 of the rules provides that there shall beStanding Committees of the Cabinet, which are set out in the FirstSchedule. Rule 6(1) provides thus:

“6.Committees of the Cabinet.-

(1) There shall be Standing Committees of the Cabinet as setout in the First Schedule to these Rules with the functionsspecified therein. The Prime Minister may from time to timeamend the Schedule by adding to or reducing the numbersof such Committees or by modifying the functions assignedto them.”

The ACC is specified at Item 1 of the First Schedule. The functions ofthe ACC include, inter alia:

“(i) To take decisions in respect of appointments specifiedin Annexure I to the First Schedule to the Government ofIndia (Transaction of Business) Rules, 1961;”

Annexure 1 to the First Schedule inter alia specifies the following:

“14. Vice-Chief of the Army Staff/General OfficersCommanding–in-Chief, Central Command, SouthernCommand, Eastern Command, Western Command, NorthernCommand, South Western Command and Army TrainingCommand.”

There has been no breach of the Transaction of Business Rules. Theappointment of the third and fourth respondents was duly approved bythe ACC. The ACC was apprised of material facts before its approvalwas communicated.

28. An attempt was made to urge that the policy decisiondated 16 October 1992 indicates that “there is a government requirementto suggest two senior eligible officers for each Army Commander’svacancy”. The policy decision dated 16 October 1992 deals withappointment of Corps Commanders. Paragraph 7 is titled “Parametersfor appointment of Corps Commanders”. It lists out “factors affectingappointment of Corps Commanders”. In that context para 7(d) indicatesthe existence of a requirement to suggest two senior eligible officers foreach vacancy of Army Commander. The above “requirement” isdirectory. Moreover, as the Tribunal held, the extension of the zone ofconsideration by considering the service profile of seven officers hascaused no prejudice to the appellant. The finding of the Tribunal in thisregard cannot be faulted.

A

B

C

D

E

F

G

H

A

A29. For the above reasons, we have come to the conclusion thatthe submissions which have been urged on behalf of the appellant arelacking in merit. The appellant as well as the third and fourth respondentshave since retired from service. The third respondent retired from serviceas COAS. We note from the record, that the appeal was admitted tohearing by an order of this Court dated 13 October 2014, after theBretirement of the appellant on 30 September 2014. Learned counsel forthe appellant had also urged that the grievance of the appellant shouldbe considered, since the claim made by him to a rank is involved. Inorder to render finality to the grievance which has been raised beforethis Court, we have addressed the challenge on merits and have notCfound any substance in it.

30. The appeal shall, accordingly, stand dismissed. There shall beno order as to costs.

Nidhi JainAppeal dismissed.

D

E

F

G

H