2000 Supreme(SC) 1213

2000(5) Supreme 281
SUPREME COURT OF INDIA
(From Delhi High Court)
Dr. A.S. Anand, CJI., S. Rajendra Babu & Doraiswamy Raju, JJ.
Union of India & Ors. -Appellants
versus
Lt. General Rajendra Singh Kadyan & Anr. -Respondents
Civil Appeals Nos. 359-360 of 1999
With
Civil Appeals Nos. 361-362 of 1999
Decided on 28-7-2000
Counsel for the Parties :
For the Appearing Parties : Soli J. Sorabjee, Attorney General, P.P. Malhotra, R.K. Anand, Gopal Subramaniam, P.P. Rao, Sr. Advocates, S.K. Dwivedi, Dhruv Mehta, Manish Singhvi, Ms. Indu Malhotra, A. Singh, Amit Kapoor, Vikas Mehta, Ms. Madhu Sweta, Rajiv Dutta, Udai Kumar, Ms. Enakashi Kulshreshtha, Kapil Sharma, N.N. Gupta, Dalip Tandon, Jamshed Bey, Ms. Neera Gupta, Ms. Devika, Advocates.

IMPORTANT POINT
Appointment of post of Army Commander is of selection and not merely promotion on seniority.

Headnote:Service Law-Armed Force Service-Army Commander-Appointment to post of Army Commander is of selection and not mere promotion on seniority.

       On a careful reading of letter dated 20.10.1986, purported to be under the orders of the President of India, fixing criteria of appointment of Army Commander, 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 Lt. General who is otherwise fit but not selected because of the revision of criteria will be a clear indication that it is a selection and not a mere promotion on the basis of seniority. Further, the expression "fit" has been brought to our notice as legally meaning "fit to be chosen" by elaborating the expression "eligible" in Stroud s Judicial Dictionary, 5th Edn. However, the expression "fit", which has different shades of meanings, also means "a person to be appointed shall be legally eligible" and "eligible" has already been explained by us to mean "fit to be chosen". Again, the expression "select" means "chosen or picked up". Therefore, we are of the view that to the post of Army Commander, selection has to take place. Of course, considering the nature of rigorous standards adopted in the matter of selection of officers from the stage of Lt. Colonel onwards upto the stage of Lt. General in the usual course it may be that the senior most officer is selected as the Army Commander. But that does not debar the Chief of the Army Staff or the Union of India in making the selection of any other person for good reasons who fulfills the necessary criteria. Therefore, we are of the opinion that it was improper on the part of the High Court to have concluded that the post of Army Commander is a non-selection post. Further, the conclusion reached by the High Court that appointment to the post of Army Commander has to be made on the basis of seniority alone cannot be accepted. (Para 19)

       The next question, which we have to consider, is what is the nature of the executive instructions that have been given. Even if we accept the view taken by the High Court that Army Headquarters communication in this regard merely amounted to an executive instruction and not supported by any orders made by the President of India or the Government of India, the learned Attorney General submitted that the other parameters that are clearly laid down in the letters of the Government of India should be strictly followed, that is, all officers who are likely to be eligible for an Army Commander appointment in terms of two years residual service will have to be given command of a Corps and unless such officer has commanded the Corps for at least one year he cannot be considered for promotion. In the present case, respondent No. 1 became a Corps Commander on September 24, 1997 and the vacancy in the post of Army Commander arose on March 1, 1998 and thus he had not completed one year of experience as a Corps Commander and he had put in 5 months and 7 days experience and to this if we add the waiver granted by the Government in terms of 6 months, it will only be 11 months and 7 days experience. Even so, he falls outside the zone of consideration for being appointed as an Army Commander. (Para 20)

       The position in law is that appraisal report or an annual confidential report is not the sole factor to be considered by the selection authority but one of the matters to be taken note of by such authority. In deciding whether a post is a selection post or not, one of the criteria to be considered is if it involves a comparative assessment of officers necessarily the element of selection is involved and, therefore, the post with which we are concerned is indeed a selection post although not totally ignoring a senior. (Para 25)

       May be one may emphasize one aspect rather than the other but in the appraisal of the total profile, the entire service profile has been taken care of by the authorities concerned and we cannot substitute our view to that of the authorities. It is a well-known principle of administrative law that when relevant considerations have been taken note of and irrelevant aspects have been eschewed from consideration and that no relevant aspect has been ignored and the administrative decisions has nexus to the facts on record, the same cannot be attacked on merits. Judicial review is permissible only to the extent of finding whether process in reaching decision has been observed correctly and not the decision as such. In that view of the matter, we think there is no justification for the High Court to have interfered with the order made by the Government. (Para 28)