TaxTMI 
TaxTMI 
2019 (3) TMI 1586
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....ommands 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 31 May 2012. A seniority list of officers in the cadre of Lieutenant General was placed on file. Seven of the senior-most amongst them, who fulfilled the conditions stipulated for promotion as Army Commanders were listed out. The seven officers were: Lt. Gen. Dalbir Singh; Lt. Gen.....
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....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 alternative, to grant the Appellant the status of an Army Commander with effect from 1 June 2012 based on the ineligibility of the third Respondent and to appoint the Appellant as Army Commander against the next available vacancy on 1 February 2013. 12. Pleadings were completed before the AFT. On 6 September 2013, the AFT dismissed the OA on the gr....
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....y 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 16 October 1992. The policy circular adverts to the norms prescribed on 20 October 1986 for the appointment of Army Commanders/VCOAS. The circular states that since commanding a Corps is a prerequisite for promotion as Army Commander, it was essential to clarify the parameters for appointment of Corps Commanders. Paragraph 7 lays down the parameters for appointment of Cor....
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....s 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 (supra) holds that the post of Army Commander is a selection post. This Court rejected the submission that appointment to the post of Army Commander must be based on seniority alone; (vi) Hence, even assuming for the purpose of argument that the third Respondent could not have been appointed in view of the DV ban, the Appellant had no vested right to selection as the senior-most of....
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.... 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 post of Army Commander has to be made on the basis of seniority alone cannot be accepted. In Kadyan (supra), the view of the High Court that the appointment of an Army Commander should not be made on the basis of selection but on the basis of seniority alone was reversed by this Court. 19. Based on the rationale that the post is a selection post, the Appellant assails the decision to appoint the....
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....ing 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 complaint of the Appellant. Emphasis has been laid on the following extract from the order dated 31 January 2013: 3. The Statutory Complaint of the General Officer has been examined in detail and the following facts emerge: (i) The proposal seeking appointment of Lt. Gen. Dalbir Singh Suhag as GOC-in-C, Eastern Command and Lt. Gen. Sanjiv Chachra as GOC-in-C, Western Command in the rank of Army Commanders agains....
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....e 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 recommended by the COAS and the Government of India, Ministry of Defence and approval was given by the ACC. 24. The averments in the counter affidavit are borne out by the file which has been produced before this Court. 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 C....
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.... 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 the functions specified therein. The Prime Minister may from time to time amend the Schedule by adding to or reducing the numbers of such Committees or by modifying the functions assigned to them. The ACC is specified at Item 1 of the First Schedule. The functions of the ACC include, inter alia: (i) To take decisions in respect of appointments specified in Annexure I to the First Schedule to the Government of India (Transaction of Business) Rules, 1961; Annexure 1 to the First S....