Rajendra Babu, J. - (1.) The dispute in this case is in regard to the appointment to the post of Army Commander. When Lt. Gen. H.R.S. Kalkat (hereinafter referred to as 'respondent No. 2') was appointed or promoted as the Army Commander, Eastern Command, the same was challenged by Lt. Gen. Rajendra Singh Kadyan (hereinafter referred to as 'the respondent No. 1') by way of a writ petition (Civil Writ No. 1527 of 1998) in the High Court of Delhi principally on the ground that he is the senior-most eligible officer to be appointed to that post; that he was seeking the aid of the Court to prevent unnecessary and avoidable aberration with regard to appointment/promotion of senior officers in the Army and keeping in view the long term interest of the Army and the country so as to avoid politicalisation of the crucial posts in the Army; that he had won various meritorious awards; that he commanded a company in Nagaland and was awarded "Vishist Seva Medal" (VSM) on January 26, 1990 and as a Major General he commanded Assam Rifles, Rashtriya rifles and Border Security Force (BSF) and he was successfully able to bring cease fire in 1997 which is still holding; that he was awarded "Ati Vishist Seva Medal" (AVSM) on February 26, 1998 for his operational success and outstanding achievement; that he commanded a company in the Bangaladesh war; that his contribution in "Operation Black Thunder" was awarded "The Chief of Army Staff's Commendation" in 1985; that, he has the requisite staff experience and has served on the staff of an Infantry Brigade and an Infantry Division in Operational appointments; that he from the rank of Lt. Colonel onwards has attained all his select promotions in the first chance through unanimous decisions; since 1997 he has been in command of the oldest and the most prestigious strike Corps of the Army; that the appointments and promotions to the post of Army Commander/Vice Chief of the Army Staff (VCOAS) are governed by the instructions as contained in the Government of India letter dated October 20, 1986; that the said letter came into effect from January 1, 1989; that he became eligible to be promoted as Army Commander as and when vacancy arose and instructions issued by the Government of India were amended on November 18, 1996 which prescribe an additional criterion for appointment to the post of Army Commander, namely, that the officer should have commanded a Corps for at least one year so as to become eligible for appointment as Army Commander/VCOAS and no waiver in this stipulation is allowed without prior concurrence of the Government; that the order dated November 18, 1996 has come into effect only to affect respondent No. 1; that even otherwise in relation to such stipulation he had been granted a waiver by the Government as prescribed by letter dated November 18, 1996 as per the Government order dated March 16, 1998; that he was fit in all respects for appointment to the post of Army Commander; that the second appellant had recorded in Annual Confidential Reports (ACRs) in respect of respondent No. 1 that on or after February 27, 1998 he was fit in all respects; and, that having found respondent No. 1 fit in all respects on or after February 27, 1998 and he being the senior most Lt. General in the Indian Army ought to have been appointed as Army Commander.
(2.) Respondent No. 1 claimed that when he was posted as Attache in Paris he was considered for the post of Major General on April 24/25, 1992 wherein he was approved for being promoted as Major General and the said decision was communicated to him on July 7, 1992. However, he was promoted to the post of Major General on September 1, 1995 after respondent No. 1 was repatriated from Paris. The Selection Board for selecting Lt. General met on October 21, 1994, the decision of which was communicated to respondent No. 1 on February 21, 1995. The case of respondent No. 1 was deferred on the ground that the 'criteria appointment was lacking". Again on April 21/22, 1995 his appointment as Lt. General was deferred on the ground "not adequately exercised in criteria appointment". Similarly, his case was again deferred on October, 11/13, 1995 and on April 24/25, 1996. On October 31, 1996 his case was recommended to be promoted as Lt. General. It was contended before the High Court that for certain irrelevant consideration and mala fide reasons the case of respondent No. 2 was deferred by the Central Government to accommodate Major General B. S. Malik who was made a Lt. General that such deferment of the case of respondent No. 1 by the Central Government was unprecedented in the history of Army. Respondent No. 1 sought for review of the Government decision regarding change of his grading from "approved" by an application made on March 8, 1997. On April 10, 1997 respondent No. 1 was again considered by a Special Selection Board to the post of Lt. General.
(3.) The decision thereto was conveyed to him on July 8, 1997. It is at this stage that the Chief of the Army Staff had issued letters/instructions stipulating that henceforth an officer to be eligible to become Army Commander/VCOAS should have commanded a Corps for at least one year. That is the first time such a stipulation had been introduced in the Army and made applicable with immediate effect. On a representation made by respondent No. 1 waiver was granted for a period of six months for his consideration for promotion to the rank of Army Commander/VCOAS. It was contended on behalf of respondent No. 1 that 2/3 days after respondent No. 1 was recommended for promotion by respondent No. 2 (Appellant No. 2 herein) on March 2, 1998 a proposal was mooted for appointment of the Army Commander, Eastern Command for filling up the vacancy that arose on March 1, 1998 when respondent No. 2 was recommended for promotion/appointment to the post of Army Commander, Eastern Command. On respondent No. 1 approaching the High Court on March 27, 1998, while directing notice it was made clear that if "any appointment is made to the post of Army Commander, Eastern Command, the same shall be subject to the result of the writ petition". It was contended before the High Court that for the first time more than one officer was considered at the time of making the recommendations for appointment or promotion to the post of Army Commander in the Indian Army; that in the past only name of senior most officer was forwarded and recommended for appointment/promotion as Army Commander; that respondent No. 1 was recommended for appointment as Army Commander; that when the statutory complaint was filed by respondent No. 1, appellant No. 2 had recommended to appellant No. 1 the name of respondent No. 2 and, therefore, the impugned decision dated March 25, 1998 with the recommendation was sent to the Appointment Committee of the Cabinet the name of respondent No. 4 for promotion/appointment as Army Commander, Eastern Command in supersession of respondent No. 1 is bad in law.;