A division bench comprising Justice Y K Sabharwal and Justice K S Gupta said there was no "infirmity" in the order of Justice Vijender Jain quashing the appointment of Lt Gen Kalkat.

The bench observed that the October 16, 1992 circular of the army headquarters fixing criteria for selection of army commanders, on which government placed its reliance for selection of Kalkat to the post, neither had the approval of the President nor that of government.

Dismissing the government appeal, the bench said army commander's post was not a "selection" post, hence seniority-cum-fitness and not seniority-cum-merit should have been the criteria as laid down in the October 20, 1986 notification issued by the President for selection of army commanders and vice chief of army staff.

With the dismissalof government appeal, Lt Gen R S Kadyan, who was superseded by Lt Gen Kalkat, would be eligible for appointment in his place as the single judge had in his order said that the latter should be appointed as GOC with immediate effect.

Referring to the 1986 notification, the court said "it is evident that comparative merit is neither the requirement nor permissible. That exactly (ie not permissible) has been done by the government," in appointing Kalkat, who was junior to Kadyan, the court said.

"We are in complete agreement with single judge bench that army commander's post is not a selection post. It would have been a different matter if seniormost officer had not been found fit in every respect, and in that eventuality the government would have appointed the next senior eligible officer," the bench observed.

Challenging the appointment of Kalkat, Kadyan had filed a petition in the High Court which was accepted by Justice Jain last week while quashing the former's appointment.

Stating that sinceKadyan was not found "unfit" in term of the October 1986 notification, therefore, Justice Jain was right in holding that government "wrongly" treated the post as "selection post".

Justice Jain was very right in holding that comparative merit judged by the government among the two seniormost army officers was "unwarranted in law", it observed.

To a specific query by the bench, Solicitor General Santosh Hegde said as a rule only two seniormost officers are considered for appointment of army commanders. Reacting on the judgement, Lt Gen Kadyan said "I'm happy. My faith in judiciary has been reaffirmed".