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Delhi high court dismisses government's appeal against army promotion

In a significant judgment, the Delhi high court today dismissed the central government's appeal against its earlier order quashing the appointment of Lieutenant General H R S Kalkat as eastern army command chief and upheld Lieutenant General R Kadyan's appointment to the post.

Observing that prima facie there were serious doubts on the stand of the government in the case, a division bench, comprising Justices Y K Sabharwal and K S Gupta overruled Solicitor General Santosh Hedge's plea for a prolonged hearing in the matter saying that they found no infirmity in the opinion of Justice Virendra Jain and were in agreement with the views expressed by him.

The judges did not appreciate the criteria of seniority-cum-fitness adopted by the government while promoting Kalkat to the post of eastern army command chief superseding Kadyan, who was the senior-most officer eligible for the post.

Noting the October 20, 1986 circular of the government by virtue of which the President of India had laid down the criteria for appointment of army commander/vice-chief of army staff, which states that the officer should be fit in every respect for such appointment, the bench said, ''It is evident that comparative merit is neither the requirement nor is it permissible.''

But what was not permissible has been done by the government by comparing the career records of Lieutenant General Kalkat and Lieutenant General Kadyan and in the process, treating the post of army commander as a selection post, it added.

The proceedings were marked by an interesting twist when the solicitor general placed his reliance on a Supreme Court judgment in the case of State of Mysore vs C R Sheshadri in support of the present case. As Hegde was explaining the applicability of the order in the present case, senior counsel R K Anand, appearing for Lieutenant General Kadyan, submitted that the judgment on which the solicitor general has been relying had been overruled by a recent 1998 apex court order.

The judges in their order noted that the observations made by the Supreme Court in the case have been diluted in the 1998 P V Savaiyan case. Rather, it has been held that the observations in the Sheshadri case could not be regarded as correctly held .

Hegde had said the apex court had held that no person can claim to be appointed on the basis of the seniority alone and it was the right of the management to chose the best officer to a post.

The court also rejected the reliance of Hegde on another Supreme Court order, saying that ''The Supreme Court order relied upon by the solicitor general has no applicability in the present case as it was evident from the facts that it was the case where selection post was under consideration."

The judges in their order said, ''We are in agreement with the single judge that it was not a selection post. It would have been a different matter if the senior most officer had not been found fit in every respect and in that eventuality, the government would have considered the next officer who is eligible.''

''But what happened is not so. The writ petitioner (Lieutenant General Kadyan) is not held to be unfit in terms of the circular of October 20, 1986, and instead the post is treated as selection post and comparative merit of the two officers was adjudged which is wholly unwarranted in law as rightly held by the single judge,'' the bench held.

''We are also in agreement with the single judge that in this case too the senior most person should have been considered and only if he was not found fit that the next officer should be considered,'' the judges said.

The order noted that the reliance on October 16, 1992 circular has rightly been declined by the single judge as it was not a statutory document and does not have the approval of the government.

The solicitor general could not satisfy the court whether the October 1992 circular was approved by the defence minister.

''The entire state of mind of the chief of the army staff was that it was a selection post,'' Justice Sabharwal observed.

''The circular has not given the government a right to consider it as a selection post. The first one has to be considered first and the second only after that and this practice seems to have not been followed,'' the judges observed.

However, Hegde was of the view that higher the post, the selection of the most meritorious person was the sole criteria for the appointment.

He said it has been a practice over the past also when consistently the names of two officers were considered for a post like the present one and the best and most meritorious person is selected, irrespective of the fact whether he was the senior most or not.

Saying that most of the appointment in the past had been done on the basis of the 1992 circular, the solicitor general contended that there was no reason to believe that the circular will have no bearing in the present case or it was non-statutory document.

Following the criteria laid down in the circular in so many cases and their being cleared by the government implied that it had the approval of the government, he submitted, but without success.

UNI

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