LT GEN RAVI DASTANE, AVSM, VSM versus UNION OF INDIA, MINISTRY OF DEFENCE, THROUGH THE SECRETARY & ORS.
[2019] 2 S.C.R. 821, Supreme Court of India, 2019
Outcome: Dismissed (Dismissed)
Segment: Facts
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LT GEN RAVI DASTANE, AVSM, VSM
v.
UNION OF INDIA, MINISTRY OF DEFENCE, THROUGH THE
SECRETARY & ORS.
(Civil Appeal No. 9721 of 2014)
MARCH 01, 2019
[DR. DHANANJAYA Y CHANDRACHUD AND
HEMANT GUPTA, JJ.]
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
[2019] 2 S.C.R. 821
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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]
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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
LT GEN RAVI DASTANE, AVSM, VSM v. UOI, MINISTRY OF
DEFENCE
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approved by the ACC and the decision was notified by the Cabinet
Secretariat on 24 May 2012. Following the lifting of the type A-
discipline 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]
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Union of India v Lt Gen Rajendra Singh Kadyan (2000)
6 SCC 698 : [2000] 1 Suppl. SCR 722 – relied on.
Case Law Reference
[2000] 1 Suppl. SCR 722
relied on.
Para 21, 24
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9721
of 2014.
From the Judgment and Order dated 06.09.2013 by the Armed
Forces Tribunal, Principal Bench, New Delhi in O.A. No. 426/2012 with
M.A. No. 50/2013.
R. K. Anand, Uday Gupta, Ms. Shivani Lal, Hiren Dasan,
M. K. Tripathi, Mohan Pandey, Advs. for the Appellant.
Ms. Madhavi Divan, ASG., R. Bala, Sachin Sharma, Mukesh
Kumar Maroria, Advs. for the Respondents.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
1. By the present appeal1, Lieutenant General Ravi Dastane has
questioned the correctness of a judgment dated 6 September 2013 of
the Principal Bench of the Armed Forces Tribunal2. The AFT rejected
his challenge to the selection of Lieutenant General Dalbir Singh, GOC-
in-C, Eastern Command and Lieutenant General Sanjiv Chachra, GOC-
in-C, Northern Command as Army Commanders.  After the decision of
the AFT, Lieutenant General Dalbir Singh (the third respondent) was
appointed as Chief of Army Staff3 and retired from service 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.
LT GEN RAVI DASTANE, AVSM, VSM v. UOI, MINISTRY OF
DEFENCE
1 The Civil Appeal was admitted for hearing on 13 October 2014.
2 AFT
3 COAS
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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 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:
1. Lt Gen Dalbir Singh;
2. Lt Gen Sanjiv Chachra;
3. Lt Gen RP Dastane;
4. Lt Gen JP Nehra;
5. Lt Gen Philip Campose;
6. Lt Gen AS Chabbewal; and
7. Lt Gen Ashok Singh.
4. The service profiles of the seven officers were forwarded
together with the recommendation of the COAS that the third respondent
be appointed as GOC-in-C, Eastern Command and the fourth respondent
be appointed as GOC-in-C, Western Command. The COAS certified
that no administrative, disciplinary or vigilance proceedings were pending
or contemplated against them.
5. A Court of Inquiry was convened on the directions of the Army
Commander, Eastern Command to investigate certain incidents which
occurred at Dimapur, involving army personnel and civilians on 20-21
December 2011. On 18 April 2012, the proceedings of the Court of
Inquiry were forwarded to Army Headquarters.
6. The proposal for the appointment of the third respondent as
Army Commander was processed on 2 May 2012 in the Ministry of
Defence (MOD) and was endorsed by the Defence Minister on 5 May
2012. The proposal for the appointment of third respondent as Army
Commander of the Eastern Command was forwarded to the Cabinet
Secretary for approval by the Appointments Committee of the Cabinet4.
On 8 May 2012, the proposal in respect of the fourth respondent for
appointment as Army Commander of the Western Command was
forwarded.
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7. On 19 May 2012, a notice to show cause was issued by the
COAS to the third respondent. A discipline and vigilance5 ban was
imposed.
8. On 24 May 2012, when the proposal was under examination
with the Cabinet Secretariat, an intimation was issued by the Army
Headquarters to the Ministry of Defence in regard to the imposition of a
Type A discipline and vigilance ban on the third respondent.  Accordingly,
on 29 May 2012, the Defence Minister decided to recommend to the
ACC that the proposal for the appointment of the third respondent be
kept on hold until further inputs were received from the Army
Headquarters. On 7 June 2012, the Army Headquarters informed the
Ministry 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 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.
LT GEN RAVI DASTANE, AVSM, VSM v. UOI, MINISTRY OF
DEFENCE [DR. DHANANJAYA Y CHANDRACHUD, J.]
5 DV
6 OA No. 426 of 2012
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12. Pleadings were completed before the AFT. On 6 September
2013, the AFT dismissed the OA on the ground that the decision to appoint
the third and fourth respondents as Army Commanders was made on
the basis of a comparative study of merit of all the officers in the zone of
consideration and that no prejudice was caused to the appellant. The
AFT held that the ACC approved the appointment of the third and fourth
respondents as Army Commanders following the recommendation of
the Ministry of Defence and that the procedure stipulated for
appointments to the post was duly followed. The AFT held thus:
“…it is necessary to examine the record which has been produced.
From the record, it appears that for making the selection to the
post of Army Commanders, an exercise was undertaken by the
Chief of Army Staff by short listing seven Lt. Generals who fulfil
the eligibility criteria. While considering the case of the officers,
the note – III of the recommendation of the Chief of Army Staff
clearly reflects that the service profile and paramount cards of
the seven Lt. Generals were examined by him. Complete service
profile of all the seven Lt. Generals were examined by the Chief
of the Army Staff. It includes the exposure of the officer to
command, staff assignment, instructional assignments, the details
of which were given in the profile of all these officers…After
consideration of service profile,
he recommended the names of
respondents No. 3 & 4 for the appointment as Army Commanders
of Eastern Command and Western Command respectively.
 …From the record itself it is clearly revealed that in both the tier
of selection, the Chief of Army Staff and Ministry of Defence,
the service profile of the petitioner was considered along with
other officers.”
13. Before we deal with the submissions which have been urged
on behalf of the appellant, it would, at the outset, be necessary to advert
to the provisions governing the appointment of Army Commanders.  On
20 October 1986, the Government of India in the Ministry of Defence
issued a communication through its Joint Secretary to the COAS stating
that 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
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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 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 pre-requisite 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 Corps Commanders. The appellant has
relied on the following:
“d) There is a Govt requirement to suggest two senior eligible
officers for each Army Commander’s vacancy.  It is, therefore,
essential
that when an Army Commander’s vacancy arises, the
two senior most officers who are eligible, in terms of the residual
service rule, have completed command or are in command of a
Corps.”
We proceed to elucidate the submissions which were urged during the
course of the hearing.
15. Mr RK Anand, learned Senior Counsel appearing on behalf of
the appellant urged the following submissions:
(i)
The letter dated 20 October 1986 indicates that the
appointment of Army Commanders is by selection and not
LT GEN RAVI DASTANE, AVSM, VSM v. UOI, MINISTRY OF
DEFENCE [DR. DHANANJAYA Y CHANDRACHUD, J.]
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on the basis of seniority. This has been reiterated in the
decision of a three Judge Bench of this Court in Union of
India v Lt Gen Rajendra Singh Kadyan7 (“Kadyan”);
(ii)
While rejecting the statutory complaint submitted by the
appellant, the Union government in the Ministry of Defence
in its letter dated 31 January 2013 noted that the proposal
submitted by COAS was “found to be based on seniority”.
In appointing the third and fourth respondents as Army
Commanders, the Union government overlooked the
requirement of selection and placed reliance exclusively on
their seniority;
(iii)
In assigning exclusive weight to the seniority of the third and
fourth respondents, there was no evaluation of the
comparative merit of the officers in the zone of consideration
who fulfilled the requirements for selection as enunciated in
the letters dated 20 October 1986 and 18 November 1996;
(iv)
The names of two senior eligible officers were not
recommended against each vacancy as mandated by the
policy decision dated 16 October 1992; and
(v)
Under the Government of India (Transaction of Business)
Rules 1961, the authority to select an officer for appointment
as Army Commander vests with the ACC. The Defence
Minister recommended only two 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;
7 (2000) 6 SCC 698
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(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 officer after the third respondent; and
(vii) On 2 May 2012, the complete service profile of seven officers
in the cadre of Lieutenant General was forwarded to the
Defence Minister by the COAS. Thereafter, upon due
consideration by the Defence Minister, the third and fourth
respondents, who were the senior most officers, were
recommended to the ACC for approval.  Even assuming
that the third respondent was rendered ineligible during the
period of the DV ban, any of the remaining eligible officers
holding the rank of Lieutenant General could have been
selected. The appellant had no vested right to be selected
nor could he assume that he would be selected merely
because
he was the senior-most officer after the third
respondent.
17. During the course of the hearing, the file pertaining to the
selection of the third and fourth respondents as Army Commanders has
been produced by the ASG.
18. Kadyan (supra), was a decision in an appeal from a judgment
of the High Court which held that the post of Army Commander should
not have been treated as a selection post and ought to have been filled
by seniority. The view of the High Court was reversed by the three
Judge Bench of this Court.  Elaborating on the criteria for appointment
of Army Commanders issued on 20 October 1986, this Court held thus:
LT GEN RAVI DASTANE, AVSM, VSM v. UOI, MINISTRY OF
DEFENCE [DR. DHANANJAYA Y CHANDRACHUD, J.]
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“..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 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 Lieutenant 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 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 third and fourth respondents
as Army Commanders on the ground that it was taken exclusively on
the basis of seniority, sans a comparative evaluation of the merits of
other officers in the rank of Lt General who fulfilled the requirements
spelt out in the letters dated 20 October 1986 and 18 November 1996.
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20. The letters dated 20 October 1986 and 18 November 1996 lay
down  the following criteria for appointment:
(i)
The officer should be fit in every respect for appointment
as Army Commander;
(ii)
The officer should have a minimum of two years’ service
left from the date of appointment as Army Commander
before attaining the age of retirement; and
(iii)
The officer should have been a Commander of Corps for
at least one year.
21. 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 (supra), 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.
LT GEN RAVI DASTANE, AVSM, VSM v. UOI, MINISTRY OF
DEFENCE [DR. DHANANJAYA Y CHANDRACHUD, J.]
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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 against the two vacancies occurring
w.e.f. 1st Jun., 2012 was received in the Ministry on
March 22, 2012. The proposal was duly recommended by
the COAS along with the certificate that no administrative
plenary/vigilance, proceedings were pending or contemplated
against the two officers.
(ii)
The proposal was examined in the Ministry with regard to
the availability of vacancy and eligibility of officers fulfilling
the prescribed criteria as laid down in policy letter No. 98684/
JS(Pay)/86 dated 20th October 1986 modified vide letter
No. 19(24)/96/d(MS) dated 18th November 1996. The
proposal was found to be based on seniority and the
officers were
fulfilling the prescribed criteria.
Accordingly, the proposal was mooted with the approval of
Raksha Mantri for the approval of the ACC vide MOD’s ID
note No. 12(1)/2012-D(MS) dated 2nd May 2012.”
(Emphasis supplied)
The order further records:
“4. It is on record that Lt Gen Dalbir Singh Suhag was
senior to Lt Gen Dastane and the proposal for
appointment of the former as Army Commander was
being processed but was only put on hold because of the
DV Ban that came after the proposal had been referred to
the ACC for approval. On the date Lt Gen Dalbir Singh was
put under DV Ban, the ACC had not considered the same
nor had made any decision thereon. The file was temporarily
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put on hold for seeking further details on the DV Ban from
the AHQ. Admittedly, the DV Ban Type ‘A’ imposed on the
officer was recalled by an Order dated 07.06.2012 for being
illegal and against the established principles of the natural
justice. This being the position unless the proposal of Lt Gen
Dalbir Singh Suhag had been rejected by the Competent
Authority, the subsequent consideration of other officer, does
not arise. The request, therefore, of Lt Gen RP Dastane
01.06.2012 has no basis.”
                           (Emphasis supplied)
23. 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. 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 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
LT GEN RAVI DASTANE, AVSM, VSM v. UOI, MINISTRY OF
DEFENCE [DR. DHANANJAYA Y CHANDRACHUD, J.]
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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 (supra) 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.
25. In the present case, it is evident that 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 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 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.
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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 Schedule inter alia specifies the following:
“14. Vice-Chief of the Army Staff/General Officers
Commanding–in-Chief, Central Command, Southern
Command, Eastern Command, Western Command, Northern
Command, South Western Command and Army Training
Command.”
There has been no breach of the Transaction of Business Rules.  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.
28. 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.
LT GEN RAVI DASTANE, AVSM, VSM v. UOI, MINISTRY OF
DEFENCE [DR. DHANANJAYA Y CHANDRACHUD, J.]
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29. For the above reasons, we have come to the conclusion that
the submissions which have been urged on behalf of the appellant are
lacking in merit.  The appellant as well as the third and fourth respondents
have since retired from service. The third respondent retired from service
as COAS. We note from the record, that 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.  Learned counsel for
the appellant had also urged 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, we have addressed the challenge on merits and have not
found any substance in it.
30. The appeal shall, accordingly, stand dismissed.  There shall be
no order as to costs.
Nidhi Jain
Appeal dismissed.