Armed Forces:
Army Commander – Post of – Appointment – Relevant criteria, seniority or selection – Held: An officer has no vested right to claim promotion on the basis of seniority alone, however, that does not mean that the authority entitled to make the appointment must ignore seniority – Officers of the Army who attain the rank of Lieutenant General progress through the hierarchical structure after fulfilling rigorous criteria of assessment – Principle that the appointment of an Army Commander is made by selection does not require that the criterion of seniority should be ignored – Seniority may be a relevant consideration – Seniority brings with it experience of organisation, experience in handling situations and experience in perspective and planning – Post, however, remains a selection post – On facts, tribunal rightly rejected the challenge to selection of two Lieutenant General-third and fourth respondents as Army Commanders – It cannot be said that the appointment of the third and fourth respondents was based exclusively on seniority or in violation of the norms governing appointment to a selection post by promotion – There was no breach of the Government of India (Transaction of Business) Rules, 1961 – Appointment of the third and fourth respondent duly approved by the Appointments Committee of the Cabinet.
Dismissing the appeal, the Court
HELD : 1.1 The emphasis on fitness in every respect is an indicator that the post is a selection post. This is buttressed by clause (d) of the letter dated 20 October 1986 which contemplates a one-time exception to officers who were otherwise found fit but were not selected because of the revision in the criteria. An officer has no vested right to claim promotion on the basis of seniority alone. But that does not mean that the authority entitled to make the appointment must ignore seniority. Officers of the Army who attain the rank of Lieutenant General progress through the hierarchical structure after fulfilling rigorous criteria of assessment. The principle that the appointment of an Army Commander is made by selection does not require that the criterion of seniority should be ignored. The decision in Kadyan case, while emphasizing that the appointment of Army Commanders is made by selection, holds that an officer does not have a vested right to claim to be promoted only by dint of seniority. The principle that seniority alone does not confer a right to appointment to a selection post does not mean that the authority making the appointments must be oblivious to seniority. Placed below the COAS, the post of Army Commander is of crucial significance to the organizational structure of the Army. Seniority may be a relevant consideration: seniority brings with it experience of organisation, experience in handling situations and experience in perspective and planning. The post, however, remains a selection post. In making appointments to such crucial posts which carry enormous functional responsibilities bearing on the defence needs of the Armed Forces and ultimately of the nation, a range of relevant considerations can be borne in mind. It would not be appropriate in the course of judicial review to confine the appointing authority to a narrow range of considerations. The appointing authority is best suited to determine who among the officers in the rank of Lieutenant General is suited for appointment against a vacancy. [Para 21] [833-C-H]
1.2 The submission of the appellant that the appointment of the third and fourth respondents was based exclusively on seniority without a comparative evaluation of the officers who fulfilled the conditions of eligibility is sought to be advanced on the basis of the order of the Union government dated 31.01.2013, rejecting the statutory complaint of the appellant. The reasons for the rejection of the statutory complaint cannot be read to mean that the selection of the third and fourth respondents as Army Commanders was based solely on their seniority, without regard to merit or to a comparative evaluation. [Para 22, 23][834-A-B; 835-C]
1.3 While recommending the name of the third and fourth respondents, the COAS had the service profile of seven officers in the rank of Lieutenant General. Two of the seven officers had a shortfall in the period of one year prescribed as Corps Commander. The service profile together with the CR dossiers of the seven officers were forwarded by the COAS to the Defence Minister. Before the Defence Minister endorsed the proposal for the appointment of the third and fourth respondents, he was apprised in writing of the fact that five officers fulfilled the criteria prescribed of having a minimum two years’ service left before the age of retirement from the date of appointment as an Army Commander and that the officers had commanded a Corps for at least one year. The file indicates that “as per practice, Army Commanders are appointed on the basis of seniority subject to fulfilling the above mentioned criteria”. This practice was adverted to in the judgment of this Court in Kadyan case where it was observed that considering the nature of the rigorous standards adopted in selecting officers upwards from the stage of Lieutenant Colonel up to the stage of Lieutenant General, in the usual course it may be that the senior most officer is selected as the Army Commander. Having adverted to this practice, this Court held that it does not debar the COAS or the Union of India from making the selection of any other person who fulfills the necessary criteria, for good reasons. [Para 24][835-H; 836-A-D]
1.4 The service profile of seven officers was taken into account by the COAS in making a recommendation. This service profile was forwarded to the Defence Minister together with the recommendation of the COAS for the appointment of the third and fourth respondents. The Defence Minister was apprised of the fact that five officers in the rank of Lieutenant General fulfilled the requirements under the criteria governing selection to the post of Army Commander. Moreover, when the proposal was placed for approval before the Appointments Committee of the Cabinet-ACC, the fact that five officers fulfilled the criteria prescribed was a matter which was specifically adverted to, together with the recommendation of the COAS (approved by the Defence Minister) for the appointment of the third and fourth respondents. The appointment of the fourth respondent was approved by the ACC and the decision was notified by the Cabinet Secretariat on 24 May 2012. Following the lifting of the type Adiscipline and vigilance ban, the ACC approved the appointment of the third respondent, which was notified by the Cabinet Secretariat on 15 June 2012. It cannot be said that the appointment of the third and fourth respondents was based exclusively on seniority or in violation of the norms governing 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 the third and fourth respondents was duly approved by the ACC. The ACC was apprised of material facts before its approval was communicated. [Para 27][837-E]
1.6 An attempt was made to urge that the policy decision dated 16 October 1992 indicates that “there is a government requirement to suggest two senior eligible officers for each Army Commander’s vacancy”. The policy decision dated 16 October 1992 deals with appointment of Corps Commanders. Paragraph
7 is titled “Parameters for appointment of Corps Commanders”. It lists out “factors affecting appointment of Corps Commanders”. In that context para 7(d) indicates the existence of a requirement to suggest two senior eligible officers for each vacancy of Army Commander. The above “requirement” is directory. Moreover, as the tribunal held, the extension of the zone of consideration by considering the service profile of seven officers has caused no prejudice to the appellant. The finding of the tribunal in this regard cannot be faulted. [Para 28][837-F-H]
1.7 The appellant as well as the third and fourth respondents have since retired from service. The third respondent retired from service as COAS. The appeal was admitted to hearing by an order of this Court dated 13 October 2014, after the retirement of the appellant on 30 September 2014. The appellant submitted that the grievance of the appellant should be considered, since the claim made by him to a rank is involved. In order to render finality to the grievance which has been raised before this Court, the challenge is addressed on merits and no substance has been found in it. [Para 29][838-A-C]
Union of India v Lt Gen Rajendra Singh Kadyan (2000)
6 SCC 698 : [2000] 1 Suppl. SCR 722 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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