1998 Supreme(Del) 989

High Court Of Delhi
RAJENDRA SINGH KADYAN - Appellant
Versus
UNION OF INDIA - Respondent
Decided On : 12/01/1998

Headnote:Service Law - Promotion — Seniority-cum-fitness — Denial of promotion to senior most officer on comparison with his junior on the ground that he had not sufficient posting in command — Denial of promotion despite fitness — Appointment of another officer quashed.

       Held:

       It looks somewhat strange as to without taking into consideration the note of the defense Minister dated 5.4.1988 wherein the then defense Minister had already made a note that on the one hand six months waiver has been granted in the adequately exercised period on the statutory complaint of the petitioner and normally senior most officer, who otherwise fulfillls other eligibility criterion, is made the Army Commander and in view of the fact that Chief of the Army Staff has recommended waiver of six months in adequately exercised period of the petitioner then on what basis the petitioner should be denied from being promoted as Army Commander, the note of the Cabinet Secretary has taken into consideration some advisory remarks pertaining to 1971 regarding petitioner. How the note of the Cabinet Secretary could disucss the comparative merit of both the officers. It was some thing which had no precedent in the history of Indian Army. From the perusal of the files of the respondent it can be seen that never before a senior most officer, who was otherwise fit, was compared with other officer. This was in total disregard of past practice and precedent.

       Fitness in every respect coupled with seniority is the criteria of appointment to the post of Army Commander. Even the basis on which Lt. Generals I.J. Khanna, Maya Dass and G.L. Bakshi were superseded, was on the ground that these three general officers were not recommended for their promotion in the ACRs and they did not meet the criterion laid down in the letter dated 20.10.1986. The case of the petitioner was different as he was recommended in the ACR for promotion. The question is whether the respondents can go into the question of comparative merit to the post of Army Commander when the petitioners career profile, experience, positive recommendation in the ACR makes him fully fit for holding the post of Army Commander, any other consideration which has gone in the process of denying that right to the petitioner, is not justifiable if the petitioner was eligible in terms of policy of the respondent dated 20.10.1986. More so, in view of the fact that respondents themselves have favourably considered the representation of the petitioner and granted a waiver by six months. Whether the petitioner stayed in Paris for a duration longer, cannot be used against the petitioner and same has not been used against the petitioner according to the stand of the respondents. As a matter of fact, the petitioner has placed on record his representation to the Army authorities that after expiry of three years he should have been repatriated and if he would have been repatriated after a period of three years, the petitioner would have gained additional exposure as Major General and then as Lt. General. As a matter of fact, the noting on the file that the petitioner gave willingness certificate is not correct from the perusal of the records. The petitioner while working at Paris had worked directly under the control of Military intelligence and his communication and correspondence dated 12.4.1994 and 11.3.1995, which are at pages 45 and 48 respectively of the paper book, have completely not been considered.

       The foremost important part of this Dossiers is Part-111 under the heading Employment and Fitness for Promotion, which is to be written by Initiating Officer and the columns are (a) Do you consider him fit in every way to hold his present rank? The recording is "yes"; and (b) Do you consider him fit for promotion to the next higher rank/appointment?. Again the answer is Yes". This was so recorded by the GOC-IN-C Central Command on 8.2.1998 in the Dossier. On 27.2.1998, the Chief of the Army Staff has found the petitioner 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 Chief of the Army Staff can recommends the name of respondent No.4 on 2.3.1998? The Cabinet Secretarys note dated 27.3.1998 has laid down three criterion, i.e. (i) The Officer should befit in every respect for such appointment; (ii) He should have a minimum of two years service left before the retirement age from the date of appointment as the Army Commander/VCOAS; and (iii) He should have successfully commanded a Corps for at least one year. Once the respondents themselves have followed the aforesaid criterion laid down for the promotion or appointment of Army Commander, petitioner being found fit in every respect on 27.2.1998; had a minimum of two years service left before the retirement age from the date of appointment as Army Commander; and have commanded a Corps for one year in view of the waiver granted by the Government of India itself, the selection on comparative merit was not on the basis of the criterion laid down for such appointment by the respondent.

       From the plain Dictionary meaning of word fit, one has to see as to what is the requirement for promotion to the post of Army Commander. As per the criteria the officer should be senior most as well as fit in all respects. Whether word Fit would encompass in its fold a liberal construction so as to include comparative merit.

       Fitness does not amount comparison between two persons. Fit in alt respects takes into consideration fitness vis-a-vis his personality, physical ability, mental agility and thoughtfulness. Can the respondent give another meaning to fit so as to include comparative merit or seniority-cum-ment.

       It is the case of the petitioner that the petitioner has commanded the Division for more than 90 days and Initiating Officer had gone away on leave and, thereforee, with the permission of the Superior Reviewing Officer, the Reviewing Officer initiated his ACR. As a matter of fact, Lt. General R.K. Sahni and Gurpreet Singh were given similar dispensation and no objection was raised by the respondents. As a matter of fact, petitioner was awarded AVSM for outstanding operational duties performed Nagaland in the rank of Major General and the aforesaid input was not available at it time when internal file assessment was drawn up.

       Thus, it is seen that appointment of Army Commander is a selection grade appointment to be filled from eligible corps commander or those who have commanded corps. Prior to 1986 Corps commanders subject to positive recommendation in their 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 were promoted in the order of their seniority. Seniority wax ignored in the case of non-recommendation in the C.Rs. One year command of a Corps was added to the criteria prescribed in 1986 letter vide November 1996 letter which also stipulated waiver by the competent authority. Any other criterion for such appointment would amount to hostile discrimination which would be vocative of Articles 14 and 16 of the Constitution of India. As I have discussed earlier the letter dated 16.10.1992 of the Army Headquarters cannot be invoked in the aid of respondent as the same is not statutory in nature. I find considerable force from the perusal of the files of the respondents that prior to October1992 senior most eligible officers were always appointed as Anny Commanders if he was otherwise fit. After the petitioner was found suitable for appointment as Army Commander and graded fit for promotion in terms of the C.Rs. of the petitioner and the requirement of minimum merit having been met the petitioner ought to have been promoted on the basis of admitted seniority. The ACR fonn for Lt. General does not contain numerical grading which is the case up to the rank of Major General The evaluation of the rating in the ACR of the Lt General is indicated by simple Yes or No in respect of an officers fitness for next promotion on the basis of the proforma, there is no scope for argument that comparative merit among eligible officers is a yardstick for promotion to the post of Army Commander. The criteria for promotion to the rank of Army Commander is thus based upon the criteria laid down in the Ministry of defense letters dated 20.10.1986 and 18.11.1996. Even if the perusal of the record of the respondent and seeing the career profiles of the petitioner and respondent No.4 both being eligible, fit and equal in merit, it cannot be said that petitioner could have been superseded in view of respondent No.4s longer tenure as corps commander as length of tenure as corps commander was not a laid down criteria in terms of the criteria stipulated in the letter of 20.10.2986 and 18.11.1996 for promotion to the post of Army Commander. The note of the Cabinet Secretary in which he has comparatively discussed the ACRs of 1971 of the petitioner amounts to importing a non-existence criteria after the petitioner was found fit in all respects in the ACR on the basis of which he was to be promoted to the next higher rank. The minimum tenure of one year as Corps commander in terms of letter of the Government of India dated 18.11.1996 has also been met by the petitioner on account of the grant of waiver by the Government. From the perusal of the files of the respondent I find force in the arguments of the petitioner that the delay in the decision on the statutory complaint submitted by the petitioner on 5.10.1997 also created hindrance for his next promotion. The post of the Army commander fell vacant on 1.3.1998 and the statutory complaint of the petitioner was decided on 16.3.1998. There is considerable force in the arguments of the learned counsel for the petitioner that the prayer to seek review of deferment grading awarded by the selection board held on 31.10.1996, respondent rejected the prayer vide their letter dated 16.3.1998 on the pretext that the petitioner must have furnished adverse career certificate. From the files of the respondent it is not found that how a note was put up that petitioner has given willingness certificate as no such certificate was produced by the respondent. I think this mistake was committed on account of a note written by the Joint Secretary on supposition that the petitioner might have submitted an adverse career certificate. One thing surprised this Court that the way the respondent filed the counter affidavit submitting therein that the Lt. General I.J. Khanna, Maya Dass and G.L. Bakshi though senior most were overlooked on the basis of comparative merit. From the perusal of the files of these officers it is manifestly clear that those officers were over looked on account of their C.Rs. as Corps commanders, thereforee, they did not fulfilll the fitness criteria and were not eligible for promotion to the post of Army Commander.

       Thus, I hold that the deferment grading in October1996 of the selection board has also adversely affected the petitioner. It has direct bearing on his exposure to command a Corps. Letter dated 18.11.1996 laying down that henceforth an officer to become eligible to be an Army Commander, should have commanded a Corps for at least one year and its applicability from the date of issue unlike in the past when letter which was issued in the year 1986 was made operative in 1988 has only affected the petitioner as has be discussed by me in detail in the preceding paragraphs.