LT GEN RAVI DASTANE, AVSM, VSMversusUNION OF INDIA, MINISTRY OF DEFENCE, THROUGH THE SECRETARY & ORS.

                        [2019] 2 S.C.R. 821                              821


               LT GEN RAVI DASTANE, AVSM, VSM                            A
                                   v.
 UNION OF INDIA, MINISTRY OF DEFENCE, THROUGH THE
                         SECRETARY & ORS.
                    (Civil Appeal No. 9721 of 2014)
                           MARCH 01, 2019                                B
         [DR. DHANANJAYA Y CHANDRACHUD AND
                       HEMANT GUPTA, JJ.]
       Armed Forces:
       Army Commander – Post of – Appointment – Relevant criteria,
                                                                         C
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      D
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,
                                                                         E
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         F
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         G
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
                                                                         H
                                 821
822               SUPREME COURT REPORTS                 [2019] 2 S.C.R.


A     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
B
      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
C     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
D
      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.
E     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]
F
             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,
G     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]
H
 LT GEN RAVI DASTANE, AVSM, VSM v. UOI, MINISTRY OF                         823
                     DEFENCE

       1.3 While recommending the name of the third and fourth              A
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
                                                                            B
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                C
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
                                                                            D
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              E
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                 F
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             G
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
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824               SUPREME COURT REPORTS                   [2019] 2 S.C.R.


A     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
B
      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
C     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
D     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”.
E     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
F     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
G     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]
H
    LT GEN RAVI DASTANE, AVSM, VSM v. UOI, MINISTRY OF                       825
                        DEFENCE

       Union of India v Lt Gen Rajendra Singh Kadyan (2000)                  A
       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.                                                                     B
       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.                       C
       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        D
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             E
the AFT, Lieutenant General Dalbir Singh (the third respondent) was
appointed as Chief of Army Staff 3 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.
                                                                             F
       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   G
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.
1
  The Civil Appeal was admitted for hearing on 13 October 2014.              H
2
  AFT
3
  COAS
826                SUPREME COURT REPORTS                      [2019] 2 S.C.R.


A             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
B
      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;
C             2. Lt Gen Sanjiv Chachra;
              3. Lt Gen RP Dastane;
              4. Lt Gen JP Nehra;
              5. Lt Gen Philip Campose;
D             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
E     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
F     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
G     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 Cabinet 4.
      On 8 May 2012, the proposal in respect of the fourth respondent for
      appointment as Army Commander of the Western Command was
      forwarded.
H
      4
          ACC
    LT GEN RAVI DASTANE, AVSM, VSM v. UOI, MINISTRY OF                            827
      DEFENCE [DR. DHANANJAYA Y CHANDRACHUD, J.]

       7. On 19 May 2012, a notice to show cause was issued by the                A
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          B
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           C
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.                                               D
       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           E
before the AFT 6 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        F
             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
                                                                                  G
             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.
5
    DV
6
    OA No. 426 of 2012                                                            H
828                 SUPREME COURT REPORTS                      [2019] 2 S.C.R.


A            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
B
      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
C            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
D            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
E            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
F            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
G
      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
H
 LT GEN RAVI DASTANE, AVSM, VSM v. UOI, MINISTRY OF                          829
   DEFENCE [DR. DHANANJAYA Y CHANDRACHUD, J.]

       b) The officer should have a minimum of two years left before         A
       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          B
       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       C
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.”
                                                                             D
       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               E
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           F
       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.
                                                                             G
       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

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830                    SUPREME COURT REPORTS                   [2019] 2 S.C.R.


A                  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
B                  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;
C            (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;
D            (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
E                  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
F
      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
G                  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;
H     7
          (2000) 6 SCC 698
 LT GEN RAVI DASTANE, AVSM, VSM v. UOI, MINISTRY OF                          831
   DEFENCE [DR. DHANANJAYA Y CHANDRACHUD, J.]

       (iii) Contrary to (ii) above, the case of the respondents is that     A
             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       B
             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;
                                                                             C
       (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         D
             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    E
             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.                                                     F
       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          G
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:
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832                 SUPREME COURT REPORTS                       [2019] 2 S.C.R.


A            “..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
B
             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”
C            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
D
             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
E            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
F
             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
G     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
H     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.
 LT GEN RAVI DASTANE, AVSM, VSM v. UOI, MINISTRY OF                            833
   DEFENCE [DR. DHANANJAYA Y CHANDRACHUD, J.]

       20. The letters dated 20 October 1986 and 18 November 1996 lay          A
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             B
               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   C
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        D
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             E
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              F
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          G
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.                                                                     H
834                 SUPREME COURT REPORTS                         [2019] 2 S.C.R.


A            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
B
      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
C                   Chachra as GOC-in-C, Western Command in the rank of
                    Army Commanders against the two vacancies occurring
                    w.e.f. 1 st 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
D                   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/
E                   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
F                   note No. 12(1)/2012-D(MS) dated 2 nd 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
G                   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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 LT GEN RAVI DASTANE, AVSM, VSM v. UOI, MINISTRY OF                           835
   DEFENCE [DR. DHANANJAYA Y CHANDRACHUD, J.]

            put on hold for seeking further details on the DV Ban from        A
            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
                                                                              B
            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     C
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                D
            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            E
            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.”                                                            F
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              G
            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
                                                                              H
836                 SUPREME COURT REPORTS                       [2019] 2 S.C.R.


A     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
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      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
C     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
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      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
E     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
F     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
G     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
H     fourth respondents was based exclusively on seniority or in violation of
      the norms governing appointment to a selection post by promotion.
 LT GEN RAVI DASTANE, AVSM, VSM v. UOI, MINISTRY OF                          837
   DEFENCE [DR. DHANANJAYA Y CHANDRACHUD, J.]

       27. Mr RK Anand, learned Senior Counsel appearing on behalf of        A
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.-
                                                                             B
       (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.”                                                       C
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;”
                                                                             D
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.”                                                        E
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              F
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        G
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.                                                    H
838                 SUPREME COURT REPORTS                     [2019] 2 S.C.R.


A            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
B
      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
C     found any substance in it.
             30. The appeal shall, accordingly, stand dismissed. There shall be
      no order as to costs.
      Nidhi Jain                                                  Appeal dismissed.

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