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PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: LT. GEN. RAJENDRA SINGH KADYAN & ANR.

DATE OF JUDGMENT:       28/07/2000

BENCH: CJI., S. Rajendra Babu, J. & Doraiswamy Raju, J.

JUDGMENT:

RAJENDRA BABU,   J.  : The  dispute in this case is in regard to the appointment to  the post   of   Army  Commander.    When  Lt.Gen.    H.R.S.    Kalkat [hereinafter  referred to as respondent No.2] was appointed  or promoted  as  the Army Commander, Eastern Command, the  same  was challenged  by  Lt.   Gen.  Rajendra  Singh  Kadyan  [hereinafter referred  to  as  respondent No.1] by way of  a  writ  petition (Civil  Writ  No.   1527  of 1998) in the  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 cease fire  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  Bangaladesh  war;  that his contribution  in  Operation Black   Thunder  was  awarded  The   Chief  of   Army   Staffs 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  from the  rank  of  Lt.  Colonel onwards has attained all  his  select promotions  in  the  first chance  through  unanimous  decisions; since  1997  he  has been in command of the oldest and  the  most prestigious  strike Corps of the Army;  that the appointments and promotions  to the post of Army Commander/Vice Chief of the  Army Staff  (VCOAS)  are governed by the instructions as contained  in the  Government of India letter dated October 20, 1986;  that the said  letter  came  into effect from January 1,  1989;   that  he became  eligible  to  be promoted as Army Commander as  and  when vacancy  arose and instructions issued by the Government of India were  amended on November 18, 1996 which prescribe an  additional criteria  for appointment to the post of Army Commander,  namely, that  the officer should have commanded a Corps for at least  one year   so  as  to  become   eligible  for  appointment  as   Army Commander/VCOAS  and  no  waiver in this stipulation  is  allowed without  prior  concurrence  of the Government;  that  the  order dated  November  18,  1996 has come into effect  only  to  affect respondent  No.1;   that  even  otherwise  in  relation  to  such stipulation  he  had been granted a waiver by the  Government  as

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prescribed  by  letter  dated  November   18,  1996  as  per  the Government  order  dated March 16, 1998;  that he was fit in  all respects for appointment to the post of Army Commander;  that the second  appellant  had  recorded in Annual  Confidential  Reports (ACRs)  in  respect of respondent No.1 that on or after  February 27,  1998  he  was fit in all respects;  and, that  having  found respondent No.1 fit in all respects on or after February 27, 1998 and  he  being  the senior most Lt.  General in the  Indian  Army ought to have been appointed as Army Commander.

Respondent  No.1  claimed that when he was posted as  Attache  in Paris  he  was considered for the post of Major General on  April 24/25,  1992 wherein he was approved for being promoted as  Major General  and the said decision was communicated to him on July 7, 1992.   However, he was promoted to the post of Major General  on September  1,  1995  after respondent No.1 was  repatriated  from Paris.   The  Selection Board for selecting Lt.  General  met  on October  21,  1994,  the decision of which  was  communicated  to respondent  No.1  on February 21, 1995.  The case  of  respondent No.1  was  deferred on the ground that the criteria  appointment was  lacking.  Again on April 21/22, 1995 his appointment 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.

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 first  time  such  a stipulation  had been introduced in the Army and made  applicable with  immediate  effect.  On a representation made by  respondent No.1  waiver  was  granted  for a period of six  months  for  his consideration  for promotion to the rank of Army Commander/VCOAS. It was contended on behalf of respondent No.1 that 2/3 days after respondent  No.1 was recommended for promotion by respondent  No. 2  (Appellant  No.   2 herein) on March 2, 1998  a  proposal  was mooted for appointment of the Army Commander, Eastern Command for filling  up  the  vacancy  that  arose  on  March  1,  1998  when respondent  No.2 was recommended for promotion/appointment to the post  of  Army  Commander, Eastern Command.  On  respondent  No.1 approaching  the  High Court on March 27, 1998,  while  directing notice  it was made clear that if any appointment is made to the post  of  Army  Commander,  Eastern Command, the  same  shall  be subject  to  the result of the writ petition.  It was  contended before  the  High  Court that for the first time  more  than  one officer  was considered at the time of making the recommendations for appointment or promotion to the post of Army Commander in the Indian  Army;  that in the past only name of senior most  officer was  forwarded and recommended for appointment/ promotion as Army Commander;   that respondent No.1 was recommended for appointment as  Army Commander;  that when the statutory complaint was  filed by respondent No.1, appellant No.  2 had recommended to appellant

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No.  1 the name of respondent No.  2 and, therefore, the impugned decision dated March 25, 1998 with the recommendation was sent to the  Appointment Committee of the Cabinet the name of  respondent No.   4  for  promotion/appointment as  Army  Commander,  Eastern Command in supersession of respondent No.1 is bad in law.

The  High  Court  first  dealt   with  contention  that  stay  of respondent  No.1 in Paris should not come in his way for  purpose of  selection  to a higher post.  After going through the  entire files  it was noted that had respondent No.1s promotion not been deferred,  he  would  have  become Lt.  General  in  1996  itself although  Major General B.S.  Malik was promoted as Lt.   General in  spite  of  grading unfit to him by  the  Special  Selection Board.   Surprisingly on November 23, 1996 the Defence  Secretary recommended  that  Major  General B.S.  Maliks  grading  may  be changed  from  Grade  D  to Grade B and in the  case  of  the petition  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 recommendation  for promotion on account of their C.Rs.  However, the  High Court proposed to consider their cases separately.  The High Court further concluded that from the records made available to the court it was evident that in the past only the senior most Lt.   General  was considered for promotion to the rank  of  Army Commander  in  the  vacancy  arising  as  happened  due  to   the retirement  of Lt.  General Surinder Nath;  that the cases of Lt. General  K.L.   DSouza  and  Lt.    General  S.K.   Sharma  were recommended  for promotion/appointment as GOC-In-C, ARTRAC;  that the  reason for not appointing Lt.  General K.L.DSouza was  that he was placed in low medical category.

The High Court found force in the argument that comparative merit was  not  the requirement to be applied by the appellants;   that the general officers meeting the requirement of Army letter dated October 20, 1996 were promoted as Army Commanders on the basis of the  seniority;   that  fitness  in every  respect  coupled  with seniority  is  the  criteria of appointment to the post  of  Army Commander,  and it noticed that the appellants could not go  into the  question of comparative merit to the post of Army  Commander when  respondent  No.1  carrier   profile,  experience,  positive recommendation in the A.C.R.  makes him fully fit for holding the post  of  Army Commander, any other consideration which has  gone into  the  process  of denying that right is not  justifiable  if respondent No.1 was eligible in terms of policy of the appellants dated  October  20,  1986 particularly when the  appellants  have considered  his  case for waiver which was granted by six  months and  when  respondent No.1 stayed in Paris for a duration  longer period and that the same cannot be utilised against him.

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The  High  Court also noticed that he had given  his  willingness certificate is not correct from the perusal of the records and he should  have been repatriated on completion of three years  which was  not  done.  The High Court also took into consideration  the statutory complaint made by respondent No.1.  It was noticed that on  February 27, 1998 when the Chief of the Army Staff had  found respondent No.1 fit in every way to hold his present rank as well as   found   him   fit  for   promotion  to   the   next   higher rank/appointment,  how  the name of respondent No.  4 could  have been  recommended  on March 2, 1998.  Therefore, the  High  Court critically analysed the Cabinet Secretarys 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, seniority ought to  have been  given  preponderating weight.  Further, It noted  that  the appointment of Army commander is a selection grade appointment to be  filled  from eligible Corps Commander.  Prior to  1986  Corps Commanders  subject  to having positive recommendation  in  their A.C.Rs.   became Army commanders In 1986 a criteria of two  years residual   service  was  introduced   for  their  becoming   Army Commanders  subject to their being fit in every respect.  General Officers  meeting the said criteria was promoted in the order  of their  seniority.   One year command of a Corps was added to  the criteria  prescribed in 1986 by letter dated November 1996  which also  provided for a waiver by the competent authority.  The note of  the Cabinet Secretary in which he has comparatively discussed the  A.C.Rs.   of 1971 of respondent No.1 amounts to importing  a non- existent criteria after respondent No.1 was found fit in all respects  in the A.C.R.  on the basis of which he was promoted to next  higher  rank.   The  minimum tenure of one  year  as  Corps commander  had  also  been met by respondent No.1 on  account  of grant  of waiver by the Government.  The deferment made in  the grading  in  October  1996 of the Selection Board  had  adversely affected  respondent  No.1 and it is only  thereafter  stipulated that an officer to become eligible to be an Army Commander should have  commanded  a  Corps  for  at   least  one  year.   In  this background,  the High Court quashed the appointment of respondent No.   2  as Army Commander, Eastern Command and allowed the  writ petition.

Challenging this order of the learned Single Judge of the High Court a Letters Patent Petition (L.P.A No. 568/98) was filed before the Division Bench of the High Court. By a very short order the Division Bench of the High Court disposed of the Letters Patent Petition stating that the comparative merit of officers was neither the requirement nor it is permissible and the appellants should not have  treated the post of Army Commander as a selection post.   The Division Bench is in agreement with the opinion of the learned Single Judge that in the past only a single person was considered and if he is not fit, then alone the

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next person in seniority was considered.   Reliance placed by the Government on Circular dated October 16, 1992  is not correct and was rightly rejected by the learned Single Judge inasmuch  it is a non- statutory document.   This is not the 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.

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 mis-placed;   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  impugned action.   The High Court has indulged in nit picking by making  a censorious  approach in examining the dossiers and files as  also the note of the Cabinet Secretary;  that the comparative merit is not  prohibited  in making the selection, which was  quite  often resorted to in making appointments to the post of Army Commander. Shri  Gopal  Subramaniam, learned Senior Advocate  appearing  for respondent  No.   2 and appellant in connected matter,  supported the  contentions of the learned Attorney General and supplemented the same on factual aspects.

Shri  P.P.Rao,  learned  senior  advocate  for  respondent  No.1, submitted,  at the very outset, that decision in this case is  of great  momentous  nature to the army inasmuch as  the  principles relating to the promotion to the post of Army Commander, that is, in  the  highest  echelons of service are in  issue.   Indeed  he submitted  that  up to the stage of appointment as Lt.   General, rigorous  tests  have to be undergone by the  concerned  officers before  they are promoted and such processes have been  undergone having reached a particular level.  Further tests are held almost automatically  unless  there  is something adverse  as  to  their fitness.  He stated that in these cases it is only seniority that governs  and that when it was ignored the matter was taken to the High  Court and the High Court has given relief in this case and, therefore,  this Court should not interfere in the order made  by it.  Respondent No.1 has always been senior to respondent No.2 by as  many  as 40 places although they belonged to the  same  batch having  been  commissioned on 10.6.1962.  Respondent No.1  had  a distinguished  career and participated in the operations of  1971 Indo-Pak   war   and  also   has  extensive  counter   insurgency experience.   The battalion in which respondent No.1 was  working during the war was engaged in fighting the enemy from Agartala to Dhaka  and  reached Dhaka on December 16, 1971 i.e.  the date  of cease-fire  and  surrender  of the Pakistan Army.   In  terms  of letter dated November 18, 1996, the officer should have commanded Corps  for  at  least  one  year so as  to  become  eligible  for appointment  as  Army  Commander  unless waived  with  the  prior concurrence  of the Government.  As respondent No.1 was the  only person  to be affected by this new criterion which was sought  to be  enforced  without  any  lead time, contrary  to  the  earlier practice,  in his statutory complaint dated 5.10.1997, he made an alternative  request  that this stipulation may be waived in  his

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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 6.1.998, 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  the  Special Selection  Board and on 8.7.1997, he was intimated of the fact of selection  and approval by the Government.  In another case filed by  Major General Bagga, the Delhi High Court passed a stay order in  July, 1997.  On 23.8.1997, respondent No.1 was put  in-charge of  GOI-1 Corps and started gaining experience of commanding  the Corps  and continues to command the same even now.  Thus Shri Rao submits  that  in terms of letter dated November 18, 1996, it  is enough  if the officer has commanded a Corps for one year by  the date  of appointment to the post of Army Commander in the absence of  waiver or including the period of waiver.  The appointment to the  post  of Army Commander having been made by an  order  dated 20.4.1998, as on that date respondent No.1 had actually commanded Corps  1  for a period of seven months and 26 days;   adding  the period  of waiver of six months, it comes to a total of one year, one  month  and  26  days.   In other  words,  he  fulfilled  the requirement  of  commanding  a  Corps for at least  one  year  by February  22, 1998.  Therefore, he was eligible for consideration for  the  post  in question and that he was  rightly  treated  as eligible  both  by the Chief of the Army Staff as well as by  the Government  of India.  He relies on the decision of this Court in Anil Kumar Gupta v.  Municipal Corporation of Delhi, 2000 (1) SCC 128.   The  criterion  that the officer should be fit  in  every respect  for  such appointment stipulated in the  Government  of Indias  letter dated October 20, 1986 clearly indicates that the post of Army Commander is a non-selection post.  In contrast, the nature of selection posts in the Army should be gathered from the selection system.

The  hierarchy  in  the  Army and the  method  of  selection  and promotion  to various posts starting from the post of  Lieutenant and  going  up  to the post of the Chief of the Army  Staff  will clearly  indicate that the posts of Lieutenant, Captain and Major are   automatic   promotion  posts  on  passing   the   promotion examination  irrespective  of inter se merit, whereas  the  posts from  Major to Lt.  Colonel, Lt.  Colonel to Colonel, Colonel  to Brigadier,  Brigadier  to Major General and Major General to  Lt. General  are  all selection posts filled up by promotion  on  the basis  of  relative  merit assessed by the  designated  selection boards.  From Lt.  General [Corps Commander] to Army Commander is a  non-selection  post  to  which promotion is  made  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

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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.

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  requirement  of assessment of comparative merit both in the case of seniority cum fitness  and seniority cum merit.  Merit cum suitability with due regard to seniority as prescribed in the case of promotion to All India  Services  necessarily involves assessment  of  comparative merit  of all eligible candidates, and selecting the best out  of them.

Shri  Rao  insisted  that  the  letter  dated  October  20,  1986 containing  the criteria for selection laid down by the President for  the Army Commander does not prescribe any minimum merit.  In fact  the  word merit is conspicuously absent from  the  entire letter  and  the  criteria  do   not  postulate  the  comparative assessment  of  merit  for appointment as Army Commander  or  Lt. Generals in the same rank.

Shri  Rao further contended that the use of the word  selection in a rule or administrative instruction does not necessarily make the  post  concerned  a selection as has been  contended  by  the appellant.    Nor  the  expression   selection  grade  used  by respondent  No.1  here  and there makes the post  in  question  a selection  post  to  be filled in by promotion on  the  basis  of comparative  assessment of merit.  In addition to the absence  of merit  being one of the criteria for selection and promotion to the  post of Army Commander, the past practice as recorded by the Defence Minister and concurrently found by the courts below shows that  the  senior-most  Lt.   General who is  found  fit  in  all respects  for  promotion according to the C.Rs.  has always  been promoted.

Shri  Rao also submitted that circular dated 28/16.10.1992 of the Army  Headquarters to the extent it applies to the appointment of Army  Commanders and is at variance with the letter dated October 20,  1986 setting out the criteria laid down by the President for appointment  of Army Commanders cannot be acted upon.  In so  far as  the said circular provides for appointment of Corps Commander as  the  caption  of  the circular indicates, there  will  be  no conflict  with  the  criteria  laid down  by  the  President  for appointment  to  the post of Army Commander.  The absence of  the word  seniority in the letter of the Government of India  dated October   20,   1986  does  not   exclude  the  right  to   prior consideration flowing from being the senior-most officer entitled to  the  considered  in  terms  of Articles  14  and  16  of  the Constitution.   The  expression  fitness  in  all  respects  or merit  or suitability is not 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

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be  a  selection  post to be filled on the basis  of  comparative assessment of merit of eligible officers.

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 assessment  of  merit.  It means suitability for  the  particular command  or  the particular staff appointment as the case may  be and that suitability is related to the command in question or the staff  appointment  in  question and there is no mention  of  any comparative assessment of merit even in that circular.  Even that circular  does  not  itself  lay down  the  two  senior  eligible officers  should be considered for each Army Commanders vacancy. In  refers  to  a pre- existing  Government  requirement  without mentioning  any Government letter or circular.  No such  document containing  this  requirement  has  been produced  so  far.   The so-called  assessment  of merit of respondent Nos.1 and 2 in  the instant  case  does  not  reveal  all  the  facts  or  take  into consideration  all  the necessary facts that are required  to  be taken  note  of.  There are several factors available  on  record such  as  Annexures  1,  2 and 3 of  his  representation  to  the Attorney  General and Annexure C to the written submissions which will  clearly indicate that the Government has not taken note  of all  the factors in making the appointment in question.  Shri Rao submitted  that advisory remarks are not adverse remarks and they cannot  be  relied upon for denying the promotion to  an  officer declared fit for promotion in all respects for that very post and that  the reports which are too stale and remote cannot be dug up to  change the settled inter se merit of officers assessed by  as many  as five selection boards for successive promotions from the ranks  of  Major  to the rank of Lt.  General all  of  which  are selection  posts.   Advisory remarks of the Reviewing Officer  in the  CR  of respondent No.1 for 1971 were never  communicated  to respondent No.1 and, therefore, the same could not be relied upon against  him.  Another submission that has been made by Shri  Rao is that consent to go on deputation cannot take away the right to be  considered  for promotion and if selected for  promotion  and that  the policy regarding willingness certificate cannot in  any event  hold  good  beyond  the normal tenure of  three  years  of officers  sent  on foreign assignments in public interest and  if the  post  of  Army Commander is a non-selection  post  to  which appointment  has to be made on the basis of seniority subject  to fitness  in  all respects and fulfillment of both these  criteria having  already been held in his favour by the Chief of the  Army Staff, the High Court was justified in issuing the writ.

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?

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[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]  Whether  the Cabinet Secretary is justified in  taking  into consideration  the service profiles of Lt.  General R.S.   Kadyan and Lt.  General H.R.S.  Kalkat in making his recommendations?

Several decisions have been cited before us on either side by the learned  counsel appearing in this case but we are not  adverting to  the  same  since we are not in any way  detracting  from  the principles  stated  therein  nor  are   we  enunciating  any  new principle.   Moreover,  we are deciding on the  special  features arising in this case.

On October 20, 1986 criteria of appointment of Army Commander was issued purported to be under the orders of the President of India and such criteria is as follows :-

(a)  The officer should be fit in every respect for 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 Lt.  Gen., who are otherwise found  fit  to hold the appointment but are not selected because of the revision in the criteria.

(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.  [added on November 18,  1996  pursuant  to  letter No.   19(24)/96/D(MS)  issued  by Government of India, Ministry of Defence.] (Emphasis supplied)

On  the  basis of this letter the argument advanced before us  is that  the  appointment  to  the  post of  Army  Commander  is  of selection and not a mere promotion on the basis of seniority.  It is  urged on behalf of the Union of India and Lt.  General H.R.S. Kalkat is that the post of Army Commander is a selection post and not  a  post  merely based on seniority.  While Shri  P.P.   Rao, learned senior Advocate for the contesting respondents, submitted that  what  is required in this letter is only that  a  concerned officer  should be fit in every respect and should have fulfilled the  other requirements.  Though diametrically opposite views are stated, on a careful reading of this letter it becomes clear that an  officer should be fit in every respect for such appointment will  not merely mean that he must be physically fit or  mentally

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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 Strouds 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 course it may be  that  the  senior  most  officer  is  selected  as  the  Army Commander.   But that does not debar the Chief of the Army  Staff or the Union of India in making the selection of any other person for good reasons who fulfills 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.

The  next  question,  which we have to consider, is what  is  the nature  of the executive instructions that have been given.  Even if  we  accept  the  view  taken by  the  High  Court  that  Army Headquarters  communication in this regard merely amounted to  an executive instruction and not supported by any orders made by the President  of  India  or  the Government of  India,  the  learned Attorney  General  submitted that the other parameters  that  are clearly  laid  down  in the letters of the  Government  of  India should be strictly followed, that is, all officers who are likely to  be eligible for an Army Commander appointment in terms of two years  residual service will have to be given command of a  Corps and  unless such officer has commanded the Corps for at least one year he cannot be considered for promotion.  In the present case, respondent  No.1  became a Corps Commander on September 24,  1997 and  the vacancy in the post of Army Commander arose on March  1, 1998  and  thus he had not completed one year of experience as  a Corps  Commander and he had put in 5 months and 7 days experience and  to  this if we add the waiver granted by the  Government  in terms  of  6  months,  it  will only be  11  months  and  7  days experience.   Even so, he falls outside the zone of consideration for being appointed as an Army Commander.  However, much argument was  addressed  on the effect of the recommendation made  by  the Chief  of the Army Staff and the order made by the Government  of India  in that regard.  On November 6, 1998 the Chief of the Army Staff  recorded a note in the following terms :- In view of  the above,  I recommend that redress be granted to tbe Gen officer by way  of granting 6 months AE waiver to him for consideration  for promotion  to  the  appointment of Army Cdr/VCOAS for  a  vacancy occurring on 01 Mar 98.

The  argument  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

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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. Kadan, 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 placement on criteria appointment in the rank of Maj Gen.

(c) Delayed consideration for promotion to the rank of Lt Gen and

(d) Revision of FIT grading to Deferred, which resulted in

(e) Further delay in consideration, approval and placement as GOC Corps, and

(f) Application of new clause vide MOD letter of 18 Nov.  96, the provisions  of which only exclude him in 1962 batch vis-Ã -vis his batchmates.

All  the above events were beyond the control of the  complainant and  were  basically caused by the administrative constraints  of the  organisation.   Hence, the Gen Offr deserves the benefit  of grant  of  waiver in terms of natural justice and  equal  rights, clause of the law.

But  whatever may be the circumstances or the period for which he fell  short the waiver granted is only for a period of 6  months. If  that is so, respondent No.1 cannot be said to have  completed the  period  of  one  year  of  experience  as  Corps  Commander. Further,  Lt.   General  R.S.   Kadyan   was  considered  by  the Selection  Board and found fit on April 10, 1997 but he could not be  promoted  as  Lt.  General and appointed as  Corps  Commander because  of stay order passed by the Delhi High Court in the writ petition  filed by Lt.  General H.S.  Bagga.  The said order  was vacated  and thereafter Lt.  General R.S.  Kadyan was promoted on September 24, 1997 and he functioned as Officer In-charge 1 Corps with effect from August 23, 1997 without any effect on promotion, pay  or  any  related benefits till he was actually  promoted  on September  24, 1997.  Lt.  General R.S.  Kadyan was appointed  as GOC  1  Corps after the stay was vacated on September  24,  1997. Hence  that period including the period of waiver falls short  of the requisite period of two years.

On  5.10.97, respondent No.1 made a statutory complaint that  his case  should  be considered on the basis  of  merit-cum-seniority subject  to  being found fit for promotion and ultimately  prayed for the following :

(1)  The  decision  to  defer his case  in  connection  with  the selection board met on October 31, 1996 may be reviewed and if he is   deemed  to  have  been  placed   in  command  of   a   corps

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retrospectively  from  the date of declaration of the results  of that Selection Board.

(2)  In  the  alternative,  he prayed  that  the  stipulation  of commanding of a corps for minimum one year to become eligible for appointment  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.

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.

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 authority.  We may advert to two  decisions  of  this  Court  in  this  regard,  namely,   AVM S.L.Chhabra v.Union of India, 1993 (Supp.) 4 SCC 441 and Union of India  vs.  Samar Singh, 1996 (10) SCC 555.  Therefore, we are of the view that heavy reliance placed by the High Court on the ACRs to  reach the conclusion otherwise is not justified.  In deciding whether a post is a selection post or not, one of the criteria to be  considered  is  if it involves a  comparative  assessment  of officers  necessarily  the element of selection is involved  and, therefore,  the  post  with which we are concerned  is  indeed  a selection post although not totally ignoring a senior.

  In  raising  an  argument   that  respondent  No.1  being  the senior-most  officer  in the cadre was being considered  for  the next  higher  post.  The post in question being a selection  post for  purposes  of promotion, the contention advanced is that  all the eligible candidates in that cadre should have been considered and  consideration of only two candidates, namely, the  appellant in one of the cases and respondent No.1, alone could not meet the necessary  criteria.   This contention does not also  hold  water because  no  one  else  has  made a complaint  and  the  case  of respondent  No.1  has  been duly considered.  Thus  the  argument advanced by Shri P.P.Rao on this aspect does not stand to reason.

Now  we come to the last aspect of the matter, namely, the manner in  which the Cabinet Secretary examined the service profiles  of the  two  officers in question.  For purposes of convenience,  we may set out the relevant portion of the note:

Lt.   Gen.   RS  Kadyan:- He was commissioned  in  the  Rajputana rifles  regiment  of  the  Infantry in June, 1962  and  has  held various Command, Staff and Instructional appointments.  He picked up  the  rank of Lt.  Gen.  On 24th September, 1997  and  started functioning  as regular Corps Commander.  The General Officer has a   balance   exposure  in   Command,  Staff  and   Instructional appointments.  However, his staff experience in senior ranks from

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Brig.   onwards is only limited to that of Military Attachee.  He has  no  experience  of  working in  Northern  Command  and  Army Headquarters.   Since  1980  he has worked for about 4  years  in field  areas.   It also appears from his records that he did  not participate  in  1962, 1965 operations.  In his report  of  1971, when  he participates in the operations, there are some  advisory remarks both by the IO and RO as below:-

 should be bold and aggressive in operation .  Should  lead his mean 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 CI 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  Chiefs 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  Northern Commands including high altitude areas.  Since 1982 he has worked for  about  4 years in remote field areas in the Eastern  Sector, especially  the  border  areas  with China.   He  has  also  held important  staff assignments in Military Operations, Infantry and Staff  Duties,  Directorates  in   the  Army  Headquarters.   His instructional  experience is however limited to junior ranks only and he has practically no experience of CI operations.

The officer did not participate in 1962 and 1965 operations.  His report  of 1971, the year in which operations took place is quite laudatory.   The  overall profile of the officer,  especially  in senior  ranks  has  been clearly above  average.   All  reporting officers have given him above average ratings with sprinklings of outstanding  ratings.  He is a graduate of Staff College and  has also  done  Senior  Commands  and  NDS Courses.   He  is  also  a recipient of AVSM.  He is medical category SHAPE-1.

The  contention  put  forth before us is that there  are  factual inaccuracies  in the statement recorded by the Cabinet  Secretary in  his note and, therefore, must be deemed to be vitiated so  as to reach a conclusion that the decision of the Government in this regard  is  not based on proper material.  The  learned  Attorney General,  therefore, took great pains to bring the entire records relating  to  the  relevant period which was  considered  by  the Cabinet Secretary and sought to point out that there were notings available  on  those  files which justify these  remarks.   Prima facie,  we  cannot say, having gone through those  records,  that these  notings  are baseless.  Critical analysis or appraisal  of the  file by the Court may neither be conducive to the  interests of  the officers concerned or for the morale of the entire force. May  be one may emphasize one aspect rather than the other but in the  appraisal  of the total profile, the entire service  profile has been taken care of by the authorities concerned and we cannot

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substitute  our  view  to  that  of the  authorities.   It  is  a well-known  principle  of administrative law that  when  relevant considerations  have  been taken note of and  irrelevant  aspects have been eschewed from consideration and that no relevant aspect has  been  ignored and the administrative decisions has nexus  to the  facts  on  record, the same cannot be  attacked  on  merits. Judicial  review  is  permissible only to the extent  of  finding whether  process in reaching decision has been observed correctly and  not  the decision as such.  In that view of the  matter,  we think  there  is  no  justification for the High  Court  to  have interfered with the order made by the Government.

Before  parting with the case we need to observe that considering the nature of the sensitivity of the posts involved and that each of  the officer feeling that he did not get the best of the  deal at  the hands of the Government or that the members of the  force being  aware  who is the best is not heading them will  certainly weaken  the  esteem  and  morale of the  force.   Therefore,  the standards  to  be  adopted and applied should be of  the  highest order so as to avoid such an impression in the force.

In  the result, we allow the appeals filed by the Union of  India and  Lt.   Gen.  H.R.S.  Kalkat and set aside the orders made  by the  High Court and dismiss the writ petition filed by respondent No.1.