TaxTMI 
TaxTMI 
2000 (7) TMI 1017
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....he 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 ceasefire 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 Bangladesh War; that his contribution in "Operation Black Thunder" was awarded "The Chief of Army Staff's 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 fro....
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....t 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. 3. 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 firs....
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.... petitioner 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 recomme....
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....inet Secretary's 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, senior....
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.... 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. 8. 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 misplaced; 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 impug....
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....laint dated 5.10.1997, he made an alternative request that this stipulation may be waived in his 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 6.1.1998, 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 t....
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....e 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 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. 12. 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 requi....
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....ot 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 be a selection post to be filled on the basis of comparative assessment of merit of eligible officers. 16. 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 assessm....
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.... Court was justified in issuing the writ. 17. 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? [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]....
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....t" will not merely mean that he must be physically fit or mentally 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 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 Lt. Colonel onwards upto the stage of Lt. General in the usual cour....
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....ent 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 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. Kadyan, 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 pla....
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....ment 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. 25. 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. 26. 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....
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....he IO and RO as below: ... should be bold and aggressive in operation.... Should lead his men 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 Cl 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 Chief's 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 Nort....