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TMI Blog2019 (3) TMI 1586X X X X Extracts X X X X X X X X Extracts X X X X ..... one. 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 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 cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 31 December 2016. Lieutenant General Chachra retired from service on 31 May 2014. The Appellant retired from service on 30 September 2014. 2. There are seven Army Commanders and one Vice Chief of Army Staff in the structure of the Indian Army. Six of them command the six regional commands of the Army while the seventh commands the Army Training Command. The position of Vice Chief of Army Staff is equivalent to an Army Commander. The post of Army Commander/Vice Chief of Army Staff, in the rank of Lieutenant General, is the second highest in the hierarchy of the Indian Army, below the Chief of Army Staff. Promotion to the post of Army Commander (General Officer Commanding in Chief) is by selection from amongst officers holding the rank of Lieutenant General, who fulfill the eligibility criteria. 3. On 22 March 2012, General V K Singh, as Chief of Army Staff, examined a proposal for filling up vacancies in two posts of Army Commander which were to arise on 1 June 2012 on the impending retirement of Lieutenant General S R Ghosh, GOC-in-C, Western Command and the appointment of Lieutenant General Bikram Singh, GOC-in-C, Eastern Command on his appointment as COAS on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Defence that the case against the third Respondent had been closed and that the discipline and vigilance ban had been lifted. In view of this development, the Defence Minister approved the proposal for conveying the lifting of the ban to the ACC. 9. On 15 June 2012, the ACC approved the appointment of the third Respondent as Army Commander. 10. On 1 June 2012 and 5 July 2012, the Appellant submitted representations to the COAS and to the Defence Minister following which, on 6 August 202, he filed a statutory complaint. On 31 January 2013, the Union government rejected the complaint. 11. In the meantime, the Appellant filed an Original Application before the AFT6 seeking the following reliefs: (i) Quashing of the appointments of the third and fourth Respondents as Army Commanders; (ii) A direction to the Union of India to consider eligible officers, including the Appellant, for the post of Army Commander which fell vacant on 1 June 2012 in accordance with the procedure prescribed in the letter dated 20 October 1986 of the Union government to the COAS together with a policy decision dated 16 October 1992; and (iii) In the alte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the President of India had prescribed criteria for the appointment of Army Commanders and Vice Chiefs of Army Staff. They were formulated in the following terms: a) The officer should be fit in every respect for such 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 Lieutenant gen, who are otherwise found fit to hold the appointment but are not selected because of the revision in the criteria. On 18 November 1996, an additional requirement, in the form of Clause (e), was inserted by the Union government in the earlier letter dated 20 October 1986: (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. 14. The Appellant has relied on a policy decision/circular dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo candidates namely, the third and fourth Respondents, thereby depriving the ACC of its authority to choose the best amongst available officers in the zone of consideration. 16. On the other hand, Ms. Madhavi Divan, learned Additional Solicitor General of India, submitted that: (i) The appeal has been rendered infructuous in view of the superannuation of the Appellant as well as the third Respondent; (ii) The case of the Appellant is that since a Type A DV ban had been imposed on the third Respondent on 22 May 2012, effective from 18 May 2012, the Respondents ought to have immediately appointed the Appellant as Army Commander since he was immediately next to the third and fourth Respondents in order of seniority; (iii) Contrary to (ii) above, the case of the Respondents is that the DV ban was lifted on 1 June 2012 and by the time the third Respondent was appointed as Army Commander on 15 June 2012 there was no bar on his appointment; (iv) The Appellant had no vested right to be appointed in the intervening period between the date of the ban and before the vacancy arose on 1 June 2012; (v) The decision of this Court in Kadyan (s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brought to our notice as legally meaning fit to be chosen by elaborating the expression eligible in Stroud's 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 Lieutenant Colonel onwards up to the stage of Lieutenant General in the usual course it may be that the seniormost officer is selected as the Army Commander. But that does not debar the Chief of the Army Staff or the Union of India from making the selection of any other person for good reasons who fulfils 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 22. 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 January 2013, rejecting the statutory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. On the contrary, it has been asserted in the counter affidavit which has been filed on behalf of the Union government that: ...in the present case as per records the then COAS considered the profile of all eligible Lt. Generals who were meeting the laid down criteria including that of the Appellant, and recommended the name of the Respondents No. 3 and 4 on 22.3.2012 for appointment to two posts of Army Commanders failing vacant, which was also examined independently and concurred by the Raksha Mantri after considering the record of service profile of all seven officers including the Appellant, and the recommendations to appoint Respondents No. 3 and 4 were approved by the ACC in terms of the Government of India (Transaction of Business) Rules, 1961. Moreover, it has been submitted that: ...in the present case the consideration took place in respect of seven eligible Lieutenant General's including the applicant and out of seven, Respondents 3 and 4 were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 A DV ban, the ACC approved the appointment of the third Respondent, which was notified by the Cabinet Secretariat on 15 June 2012. 26. The above sequence of events leads to the conclusion that there is no merit in the submission 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. 27. Mr. RK Anand, learned Senior Counsel appearing on behalf of the Appellant has adverted to the Government of India (Transaction of Business) Rules, 1961. Rule 6 of the Rules provides that there shall be Standing Committees of the Cabinet, which are set out in the First Schedule. Rule 6(1) provides thus: 6. Committees of the Cabinet.- (1) There shall be Standing Committees of the Cabinet as set out in the First Schedule to these Rules with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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