UNION OF INDIA THROUGH ITS SECRETARY & ORS. versus MAJ. GEN. MANOMOY GANGULY on 1 August 2018

UNION OF INDIA THROUGH ITS SECRETARY & ORS.

v.

MAJ. GEN. MANOMOY GANGULY

(Civil Appeal No. 5800 of 2018)AUGUST 01, 2018

[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]

Service Law:

Appointment – To the post of Director General of MedicalService (Army) [DGMS (Army) ] – Criteria for – Interpretation ofcriteria of ‘inter-se seniority cum suitability’ – Held: The criteria of‘inter-se seniority cum suitability’ implies that the post was to begiven to better suited person after evaluating ‘inter-se suitability’ –In this criteria it cannot be said that seniority is a decisive factorand suitability is secondary factor – The respondent in the presentcase fulfilled eligibility criteria for appointment to the post – Hehad adequate administrative experience – In the facts of the casethere has not been proper and valid consideration in applying thecriteria of ‘inter-se seniority and suitability’.

Words and Phrases:

‘Suitable’ – Meaning of, in the context of servicejurisprudence.

Partly allowing the appeal, the Court

HELD: 1.1 The word ‘inter se’ applies both to seniority aswell as suitability. Therefore, ‘inter se suitability’ is also to beassessed inasmuch as this assessment is ‘in the light of theirearlier experience of serving in a particular service’. As far asconsideration on the parameters of ‘inter se seniority’ isconcerned, it would mean that a person who is senior getsprecedence. [Para 40] [405-F-H]

1.2. The word ‘suitable’ is assigned the meaning as‘appropriate, fitted for the purpose or acceptable’. The conciseOxford Dictionary defines the word suitable as ‘well fitted for thepurpose; appropriate’. This ordinary meaning is to be given effect

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Ato as a general guide, unless this expression is given specialmeaning in a statute or rule in administrative instructions. “Theword ‘suitability’ is an empty vessel which is filled with meaningby context and background.” [Para 42] [406-C-D]

1.3 In service jurisprudence, where the word ‘suitable’ isBnormally examined from the point of view as to whether aparticular person is suitable to hold a particular post, it isconstrued as ‘fit’ to hold that post. It would mean that the jobprofile and job requirement of a particular post would be seenand then, going by the calibre, competence, attributes, skill andCexperience of the candidate, it would be ascertained as to whethersuch a person would be able to discharge the duties of the posti.e. whether he is suited to carry out the functions of the post, tothe satisfaction of his employer. Thus, the person to be eligibleshould qualify the following conditions: (i) the officer should bein the rank of Lt. General (& Equiv); (ii) such an officer shouldDbe holding the post of Comdt AM C&C; and (iii) he should havea minimum remainder service of one year from the date ofoccurrence of the vacancy. [Paras 43 and 44] [406-D-H]

1.4 When it comes to ‘inter se suitability’, it has referenceto assessing the suitability of all eligible officers and thereafterEfinding who is more suitable to occupy such a post. The post inquestion being very high ranking post, the competent authorityis supposed to choose a more suitable officer for such post. Forexpressing such an intention, the Circular could have been worded more appropriately and with clarity to avoid such doubts.FHowever, since the word ‘inter se’ is used, it implies that theintention behind laying down this criteria was to give these poststo a better suited person after evaluating their inter se suitability.While doing this exercise, seniority of an officer is also to begiven due weightage, meaning thereby if the senior most personis competent to hold the post, he is to be given preference.GTherefore, it is not correct that the post of DGMS (Army) is tobe filled by the officer on the strength of ‘seniority-cum-suitability’, where seniority is a decisive factor and suitability is asecondary factor. It is not only seniority and suitability simpliciter H

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but ‘inter se’ seniority and suitability. The expression ‘inter se’is totally ignored and there is no discussion thereupon at all, whichhas led the Tribunal to take wrong view insofar as interpretationof the criteria laid down in the Circular dated 10[th] July, 1992 isconcerned, which talks of ‘inter se seniority and suitability’.[Para 45] [407-B-E]

2.1 The respondent in the preset case is the senior mostLt. General, He fulfils the eligibility criteria for appointment tothe post of DGMS (Army), which is treated as better post thanDGMS (Navy) and DGMS (AF). The past practice has been to fillup the post of DGMS (Army) from a senior most officer. Forappointment of DGMS (Army) the first Note dated 16[th] January2018 by DGAFMS, in no uncertain terms, stated that theappointment to this post is to be made ‘strictly on the basis oftheir seniority’, meaning thereby the senior most Lt. General(& Equiv) is to be posted. That Note was prepared on theassumption that the respondent is not in the reckoning as hiscase for promotion to the post of Lt. General was notrecommended. It is for the first time that in the Note dated 23[rd]January 2018 the question of so-called ‘suitability’ is taken up.Even this Note dated 23[rd] January 2018 does not reflect that anyexercise of “inter se suitability” is carried out strictly in accordancewith the criteria laid down in the Circular dated 10[th] July 1992,i.e. on the touchstone of ‘inter se seniority and suitability’.[Para 47] [407-G-H; 408-C-F]

2.2 On 16[th] January 2018, when DGAFMS prepared hisNote for appointment to the post of DGMS (Army), which hadfallen vacant few months ago, he only knew that the Review Boardhad again refused to recommend the case of the respondent inthe rank of Lt. General. Therefore, he proceeded on the basisthat since the respondent is not occupying the post of Lt. Generalhe is out of reckoning. Proceeding on the aforesaid presumption,after excluding the respondent from consideration, herecommended another officer for appointment as DGMS (Army)being the senior most in the AFMS cadre. Thereafter, when thedecision of the Raksha Mantri to promote the respondent to the A

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Arank of Lt. General was declassified, in the fresh Note preparedon 23[rd] January 2018, there was a complete turn around. For thefirst time, it was mentioned in this Note that as per the criteriaLt. General (& Equiv) will be assessed for appointment of DGMS‘in the light of their earlier experience in a particular service’.No doubt, this criteria is mentioned in the Circular dated 10[th]BJuly 1992 and, therefore, there may not be anything wrong perse. However, such a realisation dawned only after coming toknow that the respondent was also in the reckoning forappointment to the post of DGMS (Army) and he was the seniormost officer.The manner in which this Note is written leaves aCreasonable impression that the exercise was done to excludethe respondent from appointment to the post of DGMS (Army).[Para 48] [409-B-G]

2.3 Consideration of suitability for the post of DGMS (Army)as per Note dated 23[rd] January 2018 is not a fair and objectiveDconsideration. The respondent had adequate administrativeexperience while working as Major General in SouthernCommand, which was equally relevant, doing similar nature ofduties from which he has gained sufficient experience makinghim aptly suitable for the post of DGMS (Army). In the past,Eofficers who are appointed to the post of DGMS (Army) were notnecessarily those officers who had earlier worked in the environsof the IHQ of the MoD. Therefore, there has not been anyproper and valid consideration in applying the criteria of ‘inter seseniority and suitability.’ [Para 48] [410-C-E]

F2.4 However, the direction of the Tribunal that therespondent be straightaway appointed to the post of DGMS (Army)may not be proper. While setting aside this direction, the case isremitted back to the Raksha Mantri. [Para 50] [411-F, H]

Mahesh Chandra Gupta v. Union of India and OthersG(2009) 8 SCC 273 : [2009] 10 SCR 921 ; Union ofIndia and Others v. Lt. Gen.‘Rajendra Singh Kadyanand Another (2000) 6 SCC 698 : [2000] 1 Suppl. SCR722 ; B.V. Sivaiah and Others v.K. Addanki Babu and H

UNION OF INDIA THROUGH ITS SECRETARY & ORS. v.MAJ. GEN. MANOMOY GANGULY

Others (1998) 6 SCC 720 : [1998] 3 SCR 782 ; Stateof Bihar v. Dr. Braj Kumar Mishra and Others (1999) 9SCC 546 : [1999] 4 Suppl. SCR 333 ; State of Mysoreand Another v. Syed Mahmood and Others [1968] 3SCR 363 – referred to.

Anisminic,Ltd. v. The Foreign Compensation Commission& Anr. (1969) 1 All E. R. 208 ; (Quintavalle) v. HumanFertilisation Authority (2005) UKHL 28 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5800of 2018.

From the Judgment and Order dated 07.05.2018 of the ArmedForces Tribunal (Principal Bench), New Delhi in O.A. No.372 of 2018and Order dated 11.05.2018 in M.A. No.791/2018 in O.A. No.372 of2018.

K. K. Venugopal, AG, Maninder Singh, ASG, R. Balasubramanian,Amarjeet Singh, Prabhas Bajaj, Ms. Aarti Sharma, Ms. Kanika Saran,Harish Vaidyanathan Shankar, Ms. Nisha Mohandas, Ms. Rati Varma,Arvind Kumar Sharma, Advs. for the Appellants.

P. S. Patwalia, Ms. Jyoti Singh, Sr. Advs., Dinesh Kumar Yadav,Mahesh Kumar, Sudarshan Rajan, Advs. for the Respondent.

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AThe Judgment of the Court was delivered by

A. K. SIKRI, J. The respondent herein was commissioned in theArmy Medical Corps on 3[rd] March, 1980. By ascending the careerladder, he has reached the position of Lieutenant General (hereinafterreferred to as Lt. General), which he occupies at present, though it is aBdifferent matter that he had to struggle a lot for claiming his rightfulpromotion to the rank of Lt. General from that of Major General. Brieffactual narration concerning his promotion from Major General to therank of Lt. General shall be stated at the relevant stage. He is nowaspiring to hold the position of Director General Medical Services (Army)C[hereinafter referred to as ‘DGMS (Army)] which has been denied tohim by the appellants. Feeling aggrieved, the respondent had approachedthe Armed Forces Tribunal (for short, ‘ AFT’), Principal Bench, NewDelhi by means of O.A. No. 372 of 2018 which has been allowed bythe AFT vide its judgment dated 7[th] May, 2018. Direction was issued tothe appellants to post the respondent as DGMS (Army) “as expeditiouslyDas possible and certainly not later than one month from today and forthat purpose take all necessary consequential steps”. The appellantshave taken exception to the outcome, as they feel that the matter hasnot been examined in correct legal perspective. This has led to the filingof the present appeal wherein the validity of the aforesaid judgmentEdated 7[th] May, 2018 of the AFT is called in question.

2. The cognizable background facts, which require mentioningfor the purposes of appreciating the nature of legal controversy andresolution thereof, are recapitulated hereinbelow:

ROUND I : THE EARLIER LITIGATIONF

3. As mentioned above, the respondent was commissioned in theArmy Medical Corps on 3[rd] March, 1980. He kept on getting promotionsfrom time to time and attained the rank of Major General on14[th] November, 2013.

4. When the respondent became eligible for consideration forGpromotion to the next rank of Lt. General in due course he was consideredfor promotion to the said rank by the Special Promotion Board (Medical)[for short, ‘SPB’] on 20[th] January, 2016 but was not empaneled forpromotion. Thereafter, he was considered for promotion to this rank as H

a 1[st] review case on 3[rd] October, 2016, but again not empaneled. Hehad submitted a statutory complaint dated 22[nd] June, 2016, after his firstconsideration to the said post and rejection thereof, to the Governmentof India wherein he was granted partial redress by order dated30[th] January, 2017 inasmuch as it was ordered that the assessment ofTechnical Officer in the Annual Confidential Report (ACR) for the year2014 be expunged on the grounds of inconsistency. The expunction ofthese remarks necessitated special review of his case for promotion tothe rank of Lt. General. Review Board again did not empanel him. Thisled to lodging of another statutory complaint dated 3[rd] June, 2017, whereinhe primarily questioned the award of lesser marks by the three ServiceChiefs who were the Members of the SPB under the head “OverallProfile”. It may be noted that he was awarded 1.5 marks, out of2 marks, under the caption ‘Overall Profile’ and his grievance was thathe was entitled to better marks under this head. Since disposal ofstatutory complaint was taking time, the respondent preferred O.A.No. 1093 of 2017 before the AFT assailing his non-selection to the rankof Lt. General. After completion of pleadings, matter was heard andvide judgment dated 2[nd] September, 2017 the AFT held that he waswrongly allotted less marks by the Board, on account of overall profile.The AFT also refrained the appellants from filling the post of DGMS(Army) (with which this litigation is concerned) that was falling vacanton 1[st] November, 2017. The appeal against that order of the AFTpreferred by the appellant No.1/Union of India, was dismissed by thisCourt on 10[th] November, 2017 holding that no interference with thedirection of the AFT was warranted and the appellant was directed totake further steps, without loss of time, in terms of the directions givenby the AFT in its judgment dated 2[nd] September, 2017.

5. The manner in which the aforesaid judgment was implementedand grievance of the respondent was ultimately redressed only at thehighest level by giving him promotion to the rank of Lt. General needs tobe mentioned at this stage as these events have some bearing on thepresent case. Some of the observations of the AFT and the directionsgiven by it may be reproduced in the first instance. These are as under:

“10. We have checked and rechecked the records. A plaincomparison of the applicant’s revised profile after getting redressalwill indicate that the applicant with 91.25 quantified marks jumps ABCDE

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to seventh place, above Maj. Gen Sanjiv Chopra having 91.15quantified marks, and not 16[th] /15[th] as indicated in Note 3 abovenotes and also stated in the counter affidavit which is totally false.If the two are compared in totality, the applicant is entitled tosame Board Marks which were given to Maj Gen Sanjiv Choprai.e. 1.7 out of two marks and would be higher in merit than MajGen Sanjiv Chopra.

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14. Therefore, in the interest of justice, we quash the proceedingsof the Review Special Promotion Board held on 21.03.2017 inrespect of the applicant due to wrong Board marks allotted to himin this Board as a result of incorrect date presented to the BoardMembers by the Secretary of the Board. We also direct that theapplicant be put through a fresh Review Special Promotion Boardto consider him for promotion to the rank of Lt. Gen inconsonance with the paramters of relevant policies and his changedprofile after allotting entitled Board marks as pointed out above,and his seniority restored. In the meantime the respondents willrefrain from filling up the post of DGMS(Army) falling vacant on01.11.2017 and will only proceed after the case of the applicant isdecided by the Board.”

6. While affirming the aforesaid order, this Court in its judgmenthad made the following observations:

“21) In the original SPB meeting, Major General Sanjiv Choprawas awarded 1.70 out of 2 marks whereas the respondent wasawarded 1.50 marks. Lesser marks given to the respondent werebecause of the reason that marks awarded to him out of 93 werelesser than Mr. Sanjiv Chopra. Result of the redressal was thatthe marks of the respondent became higher than Mr. Sanjiv Choprawhich necessitated Review SPB. This Review SPB meetinghas to be on the same standards which were adopted in originalSPB meeting.”

7. A clear message in the aforesaid order of the AFT as well asorder of this Court was that the respondent is to be assigned 1.70 marksinsofar as ‘overall profile’ was concerned, which was the standardadopted by the SPB (Medical) itself on an earlier occasion. On the award of 1.70 marks under the aforesaid head, the overall tally of marksof respondent would have been more than Major General Sanjiv Choprawho was junior to the respondent and was promoted as Lt. General.Asa natural corollary, the respondent would have also been entitled topromotion in the said rank of Lt. General.

8. However, notwithstanding this simple logic, the respondent hadto struggle hard even thereafter to get his legitimate due. In the freshReview by SPB (Medical) held on 4[th] December, 2017, the respondentwas again given 1.5 marks by the SPB (Medical). When the respondentcame to learn about the same, he immediately rushed to the AFT bymeans of M.A. No. 1518 of 2017 in O.A. No. 1093 of 2017. Thisapplication was filed on 6[th] December, 2017 seeking restraint againstthe appellants from filling up the post of DGMS (Army). In thisapplication, the AFT passed orders dated 7[th] December, 2017 directingthe appellant not to fill up the post till the time review of the SPB isapproved by the Competent Authority. It also called for the records forits perusal. Fortunately, for the respondent, when the matter wasexamined by the Competent Authority, i.e., the Raksha Mantri, it did notapprove the review undertaken by SPB awarding 1.5 marks to therespondent and recommended his promotion. This recommendation metthe approval of the ACC as well. The respondent was, accordingly,promoted to the rank of Lt. General on 1[st] March, 2018 only.

9. When M.A. 1518/2017 was taken up by the AFT, after noticeto the appellant on 2[nd] February, 2018, the aforesaid note of CompetentAuthority of the Ministry of Defence (MoD) was shown to the AFT.The Government was directed to file an affidavit indicating if the nameof the respondent for the post of DGMS (Army) had been sent in theproposal to the MoD or not? In response, Army filed the affidavit on 8[th]February, 2018 stating that Director General Armed Forces MedicalService (for short, ‘DGAFMS’) had considered the case of the respondentbut found him not suitable for forwarding his name for DGMS (Army)to the Ministry of Defence (MoD) and it was approved by the Chief ofArmy Staff as well. It was also stated that some other officers hadbeen recommended for appointment.

10. After finding that his name was not forwarded to MoD forappointment to the post of DGMS (Army), the respondent filed O.A.372 of 2018 before the AFT which has been allowed as aforesaid.

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AORDER OF THE ARMED FORCES TRIBUNAL

11. The AFT has narrated the background in which the grievanceof the respondent for promotion to the rank of Lt. General came to beredressed after he won the judicial battle before the AFT as well as thisCourt.B

12. Thereafter, it noted the contention of the counsel for therespondent that name of the respondent, being the senior most officer,ought to have been included in the panel of names forwarded by theDGAFMS for appointment to the post of DGMS (Army) to theCompetent Authority. Based on the said submission, the AFT directedCthe appellants to file the affidavit as to whether name of the respondentwas included in the panel of names recommended for the appointmentor not. In the reply, the appellants took the position that name of therespondent was considered for the appointment to the DGMS (Army)but he was not found ‘suitable’ for the said post and Lt. General SanjivChopra, who was the next senior officer, was recommended for thisDpost.

13. The AFT noted that circular dated 10[th] July, 1992 lays downcriteria of appointment to the posts of DGMS (Army) which mentionsnot only seniority but suitability as well. We may reproduce the criterialaid down in the said circular in order to appreciate the manner in whichEthe AFT proceeded with the matter:

“2. Taking into account various aspects relating to theappointment of DGsMS of Services the following criteria is laiddown for their appointment, in future :

(i) The inter-se seniority and suitability of officers in the rank ofFLt. Gen. (and equivalent) holding the posts of Comdt AMCCentre and School, Comdt AFMC, Pune and the Addl. DGAFMSshall be assessed in the light of their earlier experience of servingin particular services and they shall be considered forappointment as DGsMS of services provided they have aGminimum remainder service of six months, from the date of thevacancy.

(ii) If, after the exercise of (I) above, none of the officers arefound suitable for appointment as DGsMS of services, against available vacant posts, officers of Maj Gen (and equivalent) rank,already approved for promotion to Lt. Gen rank, may be consideredfor such appointments.

(iii) The lateral shifting of DGMS of one Service to anotherService may be considered only in exception circumstances.”

14. The criteria mentions ‘inter se seniority and suitability of theofficers in the rank of Lt. General (and equivalent)’. What is the exactmeaning and scope of this criteria is the bone of contention. Accordingto the AFT, it meant ‘seniority-cum-suitability’. The AFT, on that basis,formulated the following three questions which, according to it, arosefor its consideration.

“(i) What is the judicial interpretation given by the Court to theconcept of seniority cum suitability?

(ii) Whether the post of DGMS (Army) which is to be tenated interms of the circular of 10[th] July, 1992 is required to be appointedbased on seniority cum suitability, and does it give the option tothe Respondents for rejecting a candidate to the post ofDGMS(Army) despite he having been otherwise fit and fulfillingall other eligibility criteria;

(iii) Whether an officer who has tenure of less than one year canbe appointed by the Respondents despite the minimum tenureprescribed by its own circular.”

15. Insofar as question no. 1 is concerned, in order to find ananswer thereto, the AFT referred to the law laid down in various judgmentsdefining the meaning of ‘seniority’ and how the principle of ‘merit-cum-seniority’ and ‘seniority-cum-merit’ are to be applied. Based on thediscussion contained in the cited judgments, the AFT summed up theposition in the following manner:

“20. In view of the above judgements, where-ever the term“seniority cum merit” is used it means that seniority is to be givenprime importance and merely because a person happens to bemore meritorious, he cannot be promoted or appointedoverlooking the seniority. The usage of the term “merit cumseniority” is totally converse to this. In the latter concept, themerit will prevail over seniority. Another indispensable factor is A

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where ever the term “merit” is used as a prefix or as suffix, it willentail a comparison of two officers so far as their merit isconce5rned, but in the case of seniority cum suitability, no suchcomparison is envisaged. Suitability of an officer is totallydependent on the individual characterstic of the officer concerned.An officer may be senior, but he may be unsuitable because of hiscompetence, integrity or any other reasons, but then he has to bedeclared as unsuitable or unfit and it is only in such circumstancesthat his claim to be appointment of a particular post will beoverlooked. This would be in our considered view the answer tothe first query.”

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16. Applying the aforesaid principle, as culled out by the AFT, inthe instant case where the criteria was noticed as ‘seniority-cum-suitability’, the AFT has taken the view that seniority is a decisive factorand suitability is a secondary factor. Then it proceeded on the premisesthat since it was not the case of the appellants that the respondent isDunsuitable, he was wrongly overlooked. The AFT also remarked thatthere was a deliberate attempt to somehow recommend the name of Lt.General Sanjiv Chopra and ignore the respondent. It also found thatthere have always been a convention to appoint senior most person tothe post of DGMS (Army) inasmuch as the appellants were not able tocite even a single case in last 20-30 years where the seniority wasEoverlooked. Contrary thereto, name of the respondent was not evenforwarded by the DGAFMS to the Competent Authority for considerationwhile sending the names of two other officers (including Lt. GeneralSanjiv Chopra). In this way the respondent was wrongly ignored, wasthe opinion of the AFT.

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17. After arriving at the aforesaid conclusion, the AFT hasremarked that though in normal circumstances the AFT would havegiven direction to the appellant to consider the suitability of the respondentand pass necessary order, however, that would only give another leverin the hands of appellant to declare him unsuitable. Therefore, on thatGbasis, the AFT has itself directed the appellant to appoint the respondentto the post of DGMS (Army), primarily going by its interpretation to thecriteria viz. seniority is the decisive factor and the respondent is thesenior most and also that the appellants had given fair treatment to therespondent in the past.

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THE ARGUMENTS

18. Mr. K.K. Venugopal, learned Attorney General appearing forthe appellants, attacked the very approach adopted by the AFT in dealingwith the issue at hand. Referring to the Circular dated 1[st] June 1992,which lays down the criteria for appointment of DGMS (Army), hesubmitted that the said circular very clearly mentions the criteria of ‘interse seniority and suitability’. According to him, the Tribunal wrongly readthis criteria as equivalent to ‘seniority-cum-suitability’ and in the processtotally glossed over the phrase ‘inter se’. His submission was that theAFT formulated wrong questions, particularly question Nos. 1 and 2,which led it in wrong direction and resulted in wrong answers. Stressingthe word ‘inter se’ he emphasised that this prefix applied not only toseniority but to suitability as well. Thus, it was inter se seniority andinter se suitability of the eligible persons which was required to beadjudged. He submitted that even if the respondent was senior most,when it came to inter se suitability of the respondent vis-a-vis othereligible officers, Lt. General Sanjiv Chopra was found to be more suitablefor the post and for this reason he was recommended for appointment tothe post of DGMS (Army). In order to support the aforesaid argument,the learned Attorney General produced the Notings dated 23[rd] January2018 and 24[th] January 2018. He pointed out that in this Noting thecriteria laid down was taken note of and the case of the respondent wasconsidered in the light of the said criteria in the following manner:

“3. The criteria laid down by the MoD for the appt of DGsMSare placed at enclosure 1A & 2A. As per the criteria, Lt Gen (&equivalent) will be assessed for the appt of DGsMS in the light oftheir earlier experience in a particular service, provided they havea minimum residual service of 01 (one) year from the date ofoccurrence of vacancy.

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6) MR 04141M Maj Gen Manomoy Ganguly, VSM is approvedfor the promotion to the rank of Lt Gen (& Equivalent) in AMCvide MoD ID Note No 3(2)/2017/D(Medical) dated 19[th] January,2018 (Encl – 4A). The Gen Officer on assumption of the rank ofLt Gen would superannuate on 31[st] May, 2019 and would have aresidual service of more than 01 (one) year. The officer has beenproposed separately for the appt of DGHS (AF) office of theDGAFMS.

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A7) it is submitted that the DGAFMS has held extensivedeliberations regarding the consideration of MR 04141M Maj GenManomoy Ganguly, VSM, for the appointment of DGMS (Army)consequent to his approval for promotion to the rank of Lt Gen(Equivalent) in AFMS by a Review Promotion Board held on4[th] December, 2017. It has been submitted that, Maj GenBManomoy Ganguly, VSM would be newly promoted from the rankof Maj Gen and does not have previous experience to theworking and environs of the IHQ of the MoD. His proposal,therefore, for appt in the office of DGAFMS as DGHS(AF) wouldbe commensurate with his restored seniority as well as provideChim the opportunity to become familiar with the functions, rolesand responsibilities of the office of the DGAFMS and variousservice HQs. The Gen Officer on promotion to the rank of LtGen (& Equivalent) would then superannuate on 31[st] May, 2019.Against this backdrop, the COAS has approved the panelfor inclusion of Maj Gen Manomoy Ganguly, VSM for the appt ofDDGHS (AF).”

19. Vis-a-vis the respondent, case of Lt. General Sanjiv Chopra,the next senior most officer, was considered who had residual service of1 year and 17 days and, therefore, was also eligible and it was found thathe was more suitable for the post in question and the Note recorded thisEconsideration in the following terms:

“9. Lt Gen Sanjiv Chopra, VSM, DGHS (AF) and Col. Comdt.O/O DGAFMS, meets the eligibility criteria the appt of DGMS(Army). The COAS has approved the panel for the appt of DGMS(Army) as under:

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Sr No. Personal Particulars Remarks (a) Lt Gen Sanjiv Chopra, VSM Recommended for Col Comdt appt of DGMS (MR 04142P) (Army) DGHS (AF) office of DGAFMS (b) Surg V Adm U K Sharma Not (MR 04262N) Recommended. DG (Org & Pers) office of DGAFMS

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10. Lt Gen Sanjiv Chopra, VSM in his illustrious service careerof more than 37 years, has tenanted important staff andcommand appt viz: Brig Training at AFMC Pune, Brig IC AdmBase Hospital, Delhi Cantt., ACIDS (Med) at HQ IDS, New Delhi,Commandant MH Meerut and Base Hospital, Delhi Cantt. andMG (Med) HQ Delhi Area.

11. Lt Gen Sanjiv Chopra, VSM took over the appointment ofDirector General of Hospital Services (Armed Forces) in theoffice of the DGAFMS on 18[th] November, 2016 and assumed theappt of Col Commandant of the Army Medical Corps on 9[th] July,2017. He has, thus, been recommended for the appointment ofDGMS (Army). Proposal for his relief is being submittedseparately.

12. MR-04262N Surg Vadm UK Sharma, DG (Org & Pers) inthe office of DGAFMS is the senior most Medical Specialist andNephrologist. The Flag Officer has been proposed for permanentsecondment to Army in the rank of Lt Gen for the appointment ofCommandant AH (R&R) which is falling vacant on 31[st] March,2018 consequent to superannuation of MR-03992M Lt Gen AKDas. Hence, he is not recommended for the appointment ofDGMS (Army).”

This Note prepared by one Brig. B. Sridhar mentions that it hasthe approval of DGAFMS as well as the Chief of the Army Staff.

20. On the basis of the aforesaid Note, Director (Medical) preparedhis Note dated 24[th] January 2018 as per which Lt. General Sanjiv Choprawas recommended for appointment to DGMS (Army). Mr. Venugopalpointed out that even in this Note it was reiterated as to why DGAFMShad not included the name of the respondent and also specifically recordedthe reason given by DGAFMS in recommending the name of Lt. GeneralSanjiv Chopra. Relevant portion of this Note is as under:

“Preceding notes may please be perused. DGAFMS hassubmitted proposal for posting/appointment of DGMS (Army) andthe panel of officers proposed for the post contains the followingtwo names:

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Sr No. Personal Particulars Remarks (a) Lt Gen Sanjiv Chopra, VSM, Recommended for Col Comdt appointment to DGMS (MR 04142P) (Army) DGHS (AF) (b) Surg V Adm U K Sharma, Not (MR 04262N) Recommended. DG (Org & Pers)

2. It may be highlighted here that DGAFMS has not included thename of MR 04141M Maj Gen Manomoy Ganguly, VSM, who isnow the senior most Lt Gen (& Equivalent) officer in the AMChaving residual service of one year eligible for appointment asDGMS (Army). It may also be noted here that in the past, thesenior most Lt. Gen (& Equivalent) officer in the AMC areinvariably appointed as DGMS (Army).

3. In this regard, DGAFMS has stated that “the DGAFMS hasheld extensive deliberations regarding consideration of MR 04141MMaj Gen Manomoy Ganguly, VSM for the appointment of DGMS(Army) consequent to his approval for promotion to the rank ofLt. Gen. (& Equivalent) in the AFMS by a Review PromotionBoard held on 4[th] December, 2017. It has been submitted thatMaj Gen Manomoy Ganguly, VSM would be newly promoted fromthe rank of the IHQ of the MoD. His proposal therefore forappointment in the office of DGAFMS as DGHS (AF) wouldcommensurate with his restored seniority as well as provide himthe opportunity to become familiar with the functions, roles andresponsibilities of the office of the DGAFMS and various serviceHQs. The Gen Officer on promotion to the rank of Lt Gen (&Equivalent) wold then superannuate on 31[st] May, 2019. Againstthis backdrop, the COAS has approved the panel for inclusion ofMaj Gen Manomoy Ganguly, VSM for the appointment of DGHS(AF)”.

Below this Note, the Additional Secretary (JN) put the followingremarks:

“Panel sub. By DGAFMS at para 1 of the note is sub. for kindconsideration of RM for selection of DGMS (Army).”

It was further put up to the Defence Secretary and thereafter tothe Raksha Mantri, who approved the same.

A

21. Based on the aforesaid Notings, the argument developed bythe learned Attorney General was that this exercise was strictly inaccordance with the criteria laid down in the Administrative Instructionsdated 10[th] July 1992 which, inter alia, lays down the following procedure:

B

(i) Inter se Seniority of Lt Generals

(ii) Their Suitability;

(iii) Assessment of their suitability in the light of their earlierexperience of service in particular service on the date of occurrence oftheir vacancy vide Government of India dated 10[th] July, 1992; C

(iv) Residual service of one year; and

(v) In case no service Lt Gen is found suitable then Maj Gen whoare empanelled for promotion to Lt Gen may also be considered.

D

22. It was submitted that in the matter of appointment to the postof DGsMS of the Services, the ‘assessment of suitability’ of a Lt. Generalor its equivalent plays a vital and significant role. This is further reiteratedby the fact that according to the policy, if none is found suitable, thecriteria even caters for consideration of a Maj Gen (approved forpromotion to Lt. General) for the said post. Consequently, even a juniorwho is empanelled but yet to be promoted to the rank of Lt. General, canbe considered and appointed as DGMS.

E

23. Mr. Venugopal also submitted that the assessment of suitabilityFper se involves judging the fitness of person to be appointed to the postof DGMS. This is ensured by way of a consultative process and thereafterformulation and submission of a proposal by the DGAFMS as the CadreControlling Authority with the approval of the respective Chiefs of Stafffor sanction of the Government of India assumes vital importance. Inother words, the fitness of a person to be appointed as DGMS is evaluatedGin the consultative process. According to him, this process of consultation/deliberation based on record falls in the realm of ‘suitability’, andconsequently, evaluation of worth and merit of an officer for beingappointed to the post of DGMS.

H

H

A24. He also submitted that while the ‘seniority’ and ‘residual serviceclause’ provide a threshold limit or bar to determine the eligibility forconsideration, the ‘suitability’ clause in the policy provides for procedureto be followed to assess fitness of the officer to hold the post based onhis appointments held, ability to lead the AMC/Equiv in operations andchallenging circumstances, organisational fitness for job (appointment)Bcontent, leadership qualities, competence, experience, knowledge, integrityand the like. Ultimately, the appointment to the post of DGMS is approvedby exercising the executive powers of the President through the CentralGovernment, which was followed in the present case.

25. He also argued that when it comes to suitability of a person toCman a particular post, it was to be considered by the appropriate authorityand such considered opinion of the Competent Authority could not comewithin the purview of judicial review as held in Mahesh Chandra Guptav. Union of India and Others[1] in the following words:

“42. Hence, Article 217(1) and Article 217(2) operate in differentDspheres. Article 217(1) answers the question as to who “shouldbe elevated” whereas Article 217(2) deals with the question as towho “could be elevated”. Enrolment of an advocate under the1961 Act comes in the category of who “could be elevated”whereas the number of years of actual practise put in by aEperson, which is a significant factor, comes in the category as towho “should be elevated”.

43. One more aspect needs to be highlighted. “Eligibility” is anobjective factor. Who could be elevated is specifically answeredby Article 217(2). When “eligibility” is put in question, it couldFfall within the scope of judicial review. However, the question asto who should be elevated, which essentially involves the aspectof “suitability”, stands excluded from the purview of judicialreview.”

26. He also sought to draw sustenance from the judgment of HouseGof Lords in Anisminic, Ltd. v. The Foreign Compensation Commission& Anr.[2] wherein it is held that a tribunal which is the creature of astatute is bound to act within the parameters imposed by the statute andfurther that it is obligated to make its enquiry and decision according tothe law of land. For that reason the courts can intervene when it is 1 (2009) 8 SCC 273H 2 (1969) 1 All E.R. 208

manifest from the record that the tribunal, though keeping within itsmandated area of jurisdiction, comes to an erroneous decision throughan error of law. In such a case the courts have right to intervene tocorrect the error.

27. Another judgment on which the learned Attorney General reliedupon was the case of Union of India and Others v. Lt. Gen.‘ RajendraSingh Kadyan and Another[3]. The relevant portion is quotedhereinbelow:

“29. The contention put forth before us is that there are factualinaccuracies in the statement recorded by the Cabinet Secretaryin his note and, therefore, it must be deemed to be vitiated so as toreach a conclusion that the decision of the Government in thisregard is not based on proper material. The learned AttorneyGeneral, therefore, took great pains to bring the entire recordsrelating to the relevant period which were considered by theCabinet Secretary and sought to point out that there were notingsavailable on those files which justify these remarks. Prima facie,we cannot say, having gone through those records, that thesenotings are baseless. Critical analysis or appraisal of the file bythe Court may neither be conducive to the interests of theofficers concerned or for the morale of the entire force. Maybeone may emphasize one aspect rather than the other but in theappraisal of the total profile, the entire service profile has beentaken care of by the authorities concerned and we cannotsubstitute our view to that of the authorities. It is a well-knownprinciple of administrative law that when relevant considerationshave been taken note of and irrelevant aspects have beeneschewed from consideration and that no relevant aspect has beenignored and the administrative decisions have nexus with the factson record, the same cannot be attacked on merits. Judicial reviewis permissible only to the extent of finding whether the process inreaching decision has been observed correctly and not thedecision as such. In that view of the matter, we think there is nojustification for the High Court to have interfered with the ordermade by the Government.”

28. The learned Attorney General, thus, found error in the approachof the AFT in giving primacy to ‘seniority’ alone, ignoring the second3(2000) 6 SCC 698

A

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Aelement, namely, ‘comparative suitability’. He also submitted thatobservation of the AFT that in the past only senior most officers wereappointed as DGMS (Army) was factually incorrect as one Air MarshalH.K. Maini, though senior, was sidetracked and his junior Lt. GeneralL.P. Sadhotra was appointed as DGMS (Army) on the basis of suitability.Mr. Venugopal went to the extent of arguing that if the wrong principleBformulated by the AFT is sustained, it may lead to serious consequencesinasmuch as this very criteria is adopted not only for the post of DGMS(Army) but other more important and sensitive posts like Chiefs of theArmy, Air Force, Navy as well.

29. Mr. Patwalia, learned senior counsel appeared for theCrespondent defended the order of the AFT by raising multiple arguments.At the outset, he highlighted the manner in which, according to him, therespondent was treated shabbily by the concerned officers. In this regard,he pointed out the manner in which he was earlier refused promotion tothe post of Lt. General and the difficulties he had to surmount even afterDhis success before the AFT as well as this Court, inasmuch as, in spiteof the categorical directions, the Review Board still chose not to empanelhim for promotion to the rank of Lt. General But for a timely objectivityshown by the Raksha Mantri, the respondent would have been left in thelurch even for the post of Lt. General

E30. Mr. Patwalia then pointed out that there had always been apractice of appointing the senior most eligible officer to the post of DGMS(Army). He submitted that solitary instance of Air Marshal H.K. Mainistated now by the appellants would not advance their case because ofthe reason that it is Air Marshal H.K. Maini himself who chose not toseek appointment to the post of DGMS (Army) because of his failingFhealth. Apart therefrom, argued the learned senior counsel, there wasno instance even as per the appellants.

31. In this hue, he submitted that even in the instant case DGAFMShad initially prepared the Note dated 16[th] January 2018 for appointmentto the post of DGMS (Army) on the basis of seniority. This Note wasGprepared at the time when case of the respondent for promotion to therank of Lt. General had not been recommended by the Board and thisnon-recommendation was forwarded to the Raksha Mantri. Thus, as onthat date, the DGAFMS proceeded on the basis that the respondent wasnot in the reckoning. He, thus, considered Lt. General Sanjiv Chopra to H

UNION OF INDIA THROUGH ITS SECRETARY & ORS. v.MAJ. GEN. MANOMOY GANGULY [A. K. SIKRI, J.]

be the senior most person and recommended his name for appointmentas DGMS (Army) on the basis of his seniority. This was reflected inparagraph Nos. 2 and 3 of the said Note which read as under:

“2. The AMC in AFMS cadre has 10 (ten) Lt Gen (& Equiv)holding different appts in the three services. The appt of DGAFMSis held by the senior most Lt Gen, followed by the appt of theDgsMS which is held by the offrs in the order of seniority in therank in the second tier of AMC cadre. The remaining six Lt Gen(& Equiv) are placed in the other appts i.e. DCIDS (Med.), DGHS(AF), DG (Org & Pers), Comdt Army Hosp (R&R), Comdt AFMCand Comdt & OIC Records, AMC C&C, Lucknow.

3. The annual average vacancies arising in a calendar year isaround 4-5. Placement of empanelled Maj Gen (& Equiv) offrson promotion to the next higher rank is followed strictly on thebasis of their seniority and the availability of the appt fallingvacant due to chain movement within the cadre to maintain interse seniority and hierarchy of the appts. MR-04228K Maj GenAnup Banerji, SM and MR-04432X Maj Gen RS Grewal, VSM,both are empanelled for promotion to the rank of Lt Gen(Equivalent) MoD ID Note No. 3(37)/2016/D (medical) dated 18Nov 2016 for the vacancies arising in 2017, and hence their nameswere correctly forwarded in the panel of names of Gen officersfor the appt of Comdt & OIC Records AMC C&C Lucknow videthis office note dated 04 Jan 2018 in ref.”

It is reiterated in paragraph 7 in the following manner:

“7...The DGAFMS, DgsMS, and the DCIDS are retained in theorder of seniority for administrative reasons...”

He pointed out that in paragraph 4 the case of the respondentwas discussed and it was mentioned that since his placement was a subjudice matter, he was not being considered for appointment.

32. According to Mr. Patwalia, when it was later found that theRaksha Mantri had approved the name of the respondent for promotionto the rank of Lt. General as this recommendation was declassified on19[th] January 2018, the DGAFMS got prepared another Note dated 23[rd]January 2018 (on which the learned Attorney General has placedreliance) by bringing the criteria of comparative suitability for the first A

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Atime. According to him, it was a clear device to deny the respondentposting as DGMS (Army) who had now become the senior most officerand the event showed that the authorities were bent upon favouring Lt.General Sanjiv Chopra or their intention was to deny the respondent itslegitimate claim somehow.

B33. Coming to the Administrative Instructions in the Circular dated10[th] July 1992 laying down the criteria for appointment to the office ofDGMS (Army), the submission of Mr. Patwalia was that the correctinterpretation would be that the senior most person had to be consideredfor the said post in the first instance, subject to his suitability. If he wasfound unsuitable only then the next senior most officer would beCconsidered. According to him, there was no concept of ‘more suitable’in the said Instructions. He submitted that the law which was discussedby the Tribunal on ‘seniority-cum-merit’ was to emphasise that seniorityplays predominant role even when merit is also one of the considerations.Therefore, in the instant case when it is ‘seniority-cum-suitability’, itDimplies that the senior most person, unless declared as unsuitable orunfit, was to be given appointment to the post in question. Therefore,according to him, the Tribunal has approached the issue in rightperspective. For this purpose, he heavily relied upon Paragraph Nos. 9and 10 from the judgment of this Court in B.V. Sivaiah and Others v.K. Addanki Babu and Others[4] which read as under:E

“9. The principle of “merit-cum-seniority” lays greater emphasison merit and ability and seniority plays a less significant role.Seniority is to be given weight only when merit and ability areapproximately equal. In the context of Rule 5(2) of the IndianAdministrative Service/Indian Police Service (Appointment byFPromotion) Regulations, 1955 which prescribed that “selectionfor inclusion in such list shall be based on merit and suitability inall respects with due regard to seniority” Mathew, J. in Union ofIndia v. Mohan Lal Capoor has said: (SCC p. 856, para 37)

“[F]or inclusion in the list, merit and suitability in all respectsGshould be the governing consideration and that seniority shouldplay only a secondary role. It is only when merit and suitabilityare roughly equal that seniority will be a determining factor, orif it is not fairly possible to make an assessment inter se of the 4 (1998) 6 SCC 720H

merit and suitability of two eligible candidates and come to afirm conclusion, seniority would tilt the scale.”

Similarly, Beg, J. (as the learned Chief Justice then was) has said:(SCC p. 851, para 22)

“22. Thus, we think that the correct view, in conformity withthe plain meaning of words used in the relevant Rules, is thatthe ‘entrance’ or ‘inclusion’ test for a place on the select list, iscompetitive and comparative applied to all eligible candidatesand not minimal like pass marks at an examination. TheSelection Committee has an unrestricted choice of the bestavailable talent, from amongst eligible candidates, determinedby reference to reasonable criteria applied in assessing the factsrevealed by service records of all eligible candidates so thatmerit and not mere seniority is the governing factor.”

10. On the other hand, as between the two principles of seniorityand merit, the criterion of “seniority-cum-merit” lays greateremphasis on seniority. In State of Mysore v. Syed Mahmoodwhile considering Rule 4(3)(b) of the Mysore State Civil ServicesGeneral Recruitment Rules, 1957 which required promotion to bemade by selection on the basis of seniority-cum-merit, this Courthas observed that the Rule required promotion to be made byselection on the basis of “seniority subject to the fitness of thecandidate to discharge the duties of the post from among personseligible for promotion”. It was pointed out that where thepromotion is based on seniority-cum-merit, the officer cannot claimpromotion as a matter of right by virtue of his seniority alone andif he is found unfit to discharge the duties of the higher post, hemay be passed over and an officer junior to him may bepromoted.”

34. He also submitted that as the authorities had themselves appliedthe criteria laid down in the said Circular to mean seniority is subject tosuitability (i.e. unless found unsuitable), this administrative instruction bythe aforesaid prolonged practice had established itself as a legal principlefrom which the appellants could not deviate. He also referred to thefollowing judgments in support of his submission that under certaincircumstances even the Court can give a positive direction to appoint orpromote a person to a particular post:

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B

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DE

F

G

H

404SUPREME COURT REPORTS

A(a) State of Bihar v. Dr. Braj Kumar Mishra and Others[5](b) State of Mysore and Another v. Syed Mahmood andOthers[6]

INTERPRETATION OF “INTER SE SENIORITY ANDBSUITABILITY”

35. We have bestowed due consideration to various nuances ofthe issue, as argued by both the counsel for their respective parties.

36. Before adverting to the specificity in which the appellant dealtCwith the matter of the respondent herein, we deem it appropriate to firstgo into the parameters which are required for the purpose of consideringthe appointments to the post of DGMS (Army). The respondent belongsto Army Medical Corps (AMC) which comes under Armed ForcesMedical Service (AFMS). In this service, there are ten appointments inthe rank of Lt. General (& Equivalent) which are held by OfficersDbelonging to AMC. It has three tier structure. On the top is the post ofDGAFMS, who is the head of AFMS. He functions directly under theGovernment of India, Ministry of Defence and is responsible to theGovernment for overall medical policy concerning the armed forces.The functions of the DGAFMS as laid down in Paragraph 18 of theERegulations for the Medical Services of Armed Forces 2010 (RevisedVersion) (RMSAF) issued under the authority of the Government ofIndia, Ministry of Defence, include inter alia that he is the CadreControlling Authority in respect of all officers of the AFMS, and isresponsible for terms and conditions of services of all officers includingfor processing cases and obtaining Government sanction whereFnecessary. Below the DGAFMS, there are three posts of DirectorGeneral Medical Services, one each for the Army, Navy and the AirForce called the DGMS (Army) DGMS (Navy) and DGMS (Air)respectively. The DGs of the three Services are Medical Advisors tothe respective Chief of Staff and are responsible for the day to dayGadministration and proper functioning of the medical services of the Army,Navy and Air Force. The remaining six posts of Lt General or theirequivalent are placed in other appointments held in other establishmentsof the Armed Forces.

5 (1999) 9 SCC 546H6 (1968) 3 SCR 363

37. DGMS (Army) is in the second tier which is treated as higherthan DGMS (Navy) or DGMS (Air). The post of DGMS (Army) isnormally tenable by an Officer of the rank of Lt. General belonging toAMC and he acts as Principal Medical Advisor to the Chief of ArmyStaff.

38. As noted above, administrative instructions dated 10[th] July,1992 are issued by the Government of India, Ministry of Defence layingdown the specific criteria for appointment to the post(s) of DGMS. Wehave already reproduced the aforesaid criteria. However, since para(i) is the bone of contention, we reproduce the same hereinbelow for thesake of continuity of discussion:

“(i) The inter-se seniority and suitability of officers in the rank ofLt Gen (and equivalent) holding the posts of Comdt AMC Centreand School, Comdt AFMC, Pune and the Addl DG AFMS shallbe assessed in the light of their earlier experience of serving inparticular services and they shall be considered for appointmentof DGs MS of services provided they have a minimum remainderservice of six months from the date of occurrence of thevacancy.”

39. The expression which is to be assigned its proper meaning is‘the inter se seniority and suitability’. Whereas the respondent arguesthat it is nothing but ‘seniority-cum-suitability’ which means senior mostLt. General subject to his suitability for the post of DGMS (Army) is tobe appointed, the plea of the appellant is that the word ‘inter se’ has alsoto be given its due meaning and it is related both to seniority as well assuitability. On that basis, it is argued that suitability is to be judged ‘interse’ between the eligible persons and one who is more suitable would beentitled to appoint as DGMS (Army).

40. When we read the aforesaid para (i) as a whole, we findforce in the submission of the appellant that the word ‘inter se’ appliesboth to seniority as well as suitability. Therefore, ‘inter se suitability’ isalso to be assessed inasmuch as this assessment is ‘in the light of theirearlier experience of serving in a particular service’. As far asconsideration on the parameters of ‘inter se seniority’ is concerned, itwould mean that a person who is senior gets precedence. To this extent,there is no quarrel. Question is as to what meaning is to be assigned to A

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A‘inter se suitability’. Two questions arise from the above. First, what isthe meaning of ‘suitability’. Second, how the expression ‘inter sesuitability’ is to be construed, i.e. whether it should be understood aschoosing a ‘more suitable’ officer for appointment as DGsMS. As faras inter se suitability is concerned, all the eligible officers in the rank ofLt. General (& Equiv), having regard to their earlier experience of servingBin particular services, they are to be considered for appointment as DGsMSof services (i.e. DGMS (Army)).

41. Let us first consider the meaning of ‘suitability’.

42. In English parlance, the word ‘suitable’ is assigned the meaningCas ‘appropriate, fitted for the purpose or acceptable’. The concise OxfordDictionary defines the word suitable as ‘well fitted for the purpose;appropriate’. This ordinary meaning is to be given effect to as a generalguide, unless this expression is given special meaning in a statute or rulein administrative instructions. In R (Quintavalle) v. Human FertilisationAuthority[7], the House of Lords remarked that “the word ‘suitability’ isDan empty vessel which is filled with meaning by context and background.

43. In service jurisprudence, where the word ‘suitable’ is normallyexamined from the point of view as to whether a particular person issuitable to hold a particular post, it is construed as ‘fit’ to hold that post.It would mean that the job profile and job requirement of a particularEpost would be seen and then, going by the calibre, competence, attributes,skill and experience of the candidate, it would be ascertained as to whethersuch a person would be able to discharge the duties of the post i.e.whether he is suited to carry out the functions of the post, to thesatisfaction of his employer.F44. It, thus, follows from the above that the person to be eligibleshould qualify the following conditions:

(i) the officer should be in the rank of Lt. General (& Equiv);

(ii) such an officer should be holding the post of Comdt AM

G C&C; and

(iii) he should have a minimum remainder service of one year from the date of occurrence of the vacancy.

7(2005) UKHL 28H

45. Adverting to the second question, the prefix ‘inter se’ has alsoto be given some meaning as it cannot be rendered otiose. Therefore,whereas while assessing ‘suitability’, it has to be seen that a particularofficer is not unfit for the post, when it comes to ‘inter se suitability’, ithas reference to assessing the suitability of all eligible officers andthereafter finding who is more suitable to occupy such a post. We haveto keep in mind that these are very high ranking posts and, therefore, thecompetent authority is supposed to choose a more suitable officer forsuch posts. We are of the opinion that for expressing such an intention,the Circular could have been worded more appropriately and with clarityto avoid such doubts. However, since the word ‘inter se’ is used, itimplies that the intention behind laying down this criteria was to givethese posts to a better suited person after evaluating their inter sesuitability. Of course, while doing this exercise seniority of an officer isalso to be given due weightage, meaning thereby if the senior most personis competent to hold the post, he is to be given preference. Therefore,we conclude that the view of the AFT that the post of DGMS (Army) isto be filled by the officer on the strength of ‘seniority-cum-suitability’,where seniority is a decisive factor and suitability is a secondary factor,is not correct. In the entire discussion resting with the aforesaid view,the Tribunal ignored the fact that it is not only seniority and suitabilitysimpliciter but ‘inter se’ seniority and suitability. The expression ‘interse’ is totally ignored and there is no discussion thereupon at all, whichhas led the AFT to take wrong view insofar as interpretation of thecriteria laid down in the Circular dated 10[th] July, 1992 is concerned,which talks of ‘inter se seniority and suitability’.

46. Having made this legal position clear, we advert to the factsof the present case.

47. Some admitted facts which are pertinent for the outcome ofthe present appeal need to be highlighted at this juncture. These are:

(i) The respondent is the senior most Lt. General

(ii) He fulfils the eligibility criteria for appointment to the post ofDGMS (Army).

(iii) DGMS (Army) is treated as better post than other DGs, i.e.DGMS (Navy) and DGMS (AF).

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A(iv) The past practice has been to fill up the post of DGMS (Army)from a senior most officer. Before the AFT, the appellants failed to giveany example where seniority was ignored. In the past, i.e. ever sinceissuance of Circular dated 10[th] July 1992, the practice has been to appointthe senior most Lt. General from Army. Before the AFT, the appellantscould not cite a single deviation to the aforesaid practice. In the appeal,Bexample of one Air Marshal H.K. Maini is given. However, it isadequately answered by the respondent by pointing out that that happenedbecause Air Marshal Maini himself chose not to be posted as DGMS(Army) because of his health reasons, which the appellants could notcontrovert.

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C

Even, in the present case, for appointment of DGMS (Army) thefirst Note dated 16[th] January 2018 by DGAFMS, in no uncertain terms,stated that the appointment to this post is to be made ‘strictly on thebasis of their seniority’, meaning thereby the senior most Lt. General (&Equiv) is to be posted. That Note was prepared on the assumption thatDthe respondent is not in the reckoning as his case for promotion to thepost of Lt. General was not recommended.

(v) It is for the first time that in the Note dated 23[rd] January 2018the question of so-called ‘suitability’ is taken up. We have used theexpression ‘so-called’ for the reason that (as would be discussed in someEdetail afterwards) even this Note dated 23[rd] January 2018 does not reflectthat any exercise of “inter se suitability” is carried out strictly inaccordance with the criteria laid down in the Circular dated 10[th] July1992, i.e. on the touchstone of ‘inter se seniority and suitability’.

F48. Apart from the aforesaid admitted facts, we also would like tostate some of the findings as recorded by the AFT, with which we are inagreement. These are listed below:

(i) There has been some attempt (though we are not suggestingas to whether it was deliberate or bona fide) in denying the respondentGhis claim for promotion to the rank of Lt. General Events in detail on thisaspect have already been narrated above, which need not be reiterated.Suffice it is to mention that even after the orders of the AFT andaffirmation thereafter by the judgment of this Court, the Board had stuckto its earlier notion about the respondent. Fortunately for him, the Raksha H

Mantri took a fair and objective view in the matter and granted him hisdeserved promotion, which was legitimately due to him.

(ii) As on 16[th] January 2018, when DGAFMS prepared his Notefor appointment to the post of DGMS (Army), which had fallen vacantfew months ago, he only knew that the Review Board had again refusedto recommend the case of the respondent in the rank of Lt. General.Therefore, he proceeded on the basis that since the respondent is notoccupying the post of Lt. General he is out of reckoning and, accordingly,Lt. General Sanjiv Chopra was the senior most officer. Proceeding onthe aforesaid presumption, after excluding the respondent fromconsideration, he recommended Lt. General Sanjiv Chopra forappointment as DGMS (Army) being the senior most in the AFMS cadre.This Note went to the extent of recording that not only promotion isstrictly on the basis of their seniority, it was being done even for theposts of ‘DGAFMS’, ‘DGsMS’ and the ‘CDC IDC’ who are retainedin the order of seniority for administrative reasons. Within three daysthereafter, when the decision of the Raksha Mantri to promote therespondent to the rank of Lt. General was declassified, in the fresh Noteprepared on 23[rd] January 2018, there was a complete turn around. Forthe first time, it was mentioned in this Note that as per the criteria Lt.General (& Equiv) will be assessed for appointment of DGMS ‘in thelight of their earlier experience in a particular service’. No doubt, thiscriteria is mentioned in the Circular dated 10[th] July 1992 and, therefore,there may not be anything wrong per se. However, we find substancein the submission of the learned senior counsel appearing for therespondent that such a realisation dawned only after coming to knowthat the respondent was also in the reckoning for appointment to thepost of DGMS (Army) and he was the senior most officer.

(iii) The manner in which this Note is written leaves a reasonableimpression that the exercise was done to exclude the respondent fromappointment to the post of DGMS (Army). In the first instance, thoughthe criteria of assessment ‘in the light of their earlier experience in aparticular service’ is mentioned in paragraph 3 of the Note, it nowherereproduces the exact criteria, namely, ‘inter se seniority and suitability’.Thus, while considering the earlier experience in a particular service, itwas to be done in the light of inter se seniority-cum-suitability is not A

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Areflected in the said Note. In fact, there is no such exercise of inter sesuitability undertaken in this Note.

(iv) In paragraph 7 of the Note dated 23[rd] January 2018, case ofthe respondent is discussed. Qua him it is mentioned that since he wouldbe newly promoted from the rank of Major General, he does not haveB‘previous exposure to the working and environs of the IHQ of the MoD’.On that basis, he is proposed for appointment as DGHS (AF) instead ofDGMS (Army). This, according to us, is not a fair and objectiveconsideration of his suitability for the post of DGMS (Army) as it is notnecessary to have working experience in IHQ alone. Mr. Patwalia hadvehemently argued that the respondent had adequate administrativeCexperience while working as Major General in Southern Command, whichwas equally relevant, doing similar nature of duties from which he hasgained sufficient experience making him aptly suitable for the post ofDGMS (Army). He had also pointed out that in the past, officers whoare appointed to the post of DGMS (Army) were not necessarily thoseDofficers who had earlier worked in the environs of the IHQ of the MoD.This fact also could not be refuted by the appellants. Therefore, we findthat there has not been any proper and valid consideration in applyingthe criteria of inter se seniority and suitability.

49. For the aforesaid reasons, we agree with the ultimate conclusionEof the AFT that appointment of Lt. General Sanjiv Chopra to the post ofDGMS (Army) warrants to be quashed.

50. However, in view of our aforesaid discussion, we are of theview that the direction of the AFT that the respondent be straightawayappointed to the post of DGMS (Army) may not be proper. We areFconscious about the apprehensions of the AFT, which may not unfoundedaltogether. However, since we have not agreed with the conclusion ofthe AFT that the appointment to the post of DGMS (Army) is not basedon seniority alone, it may not be proper to uphold such a direction of theAFT. While setting aside this direction, we remit the case back to theRaksha Mantri. We repose full faith in the Raksha Mantri and areGconfident that she would consider the entire matter in a totallydispassionate manner, with utmost objectivity and depicting total fairness.Copy of this judgment and particularly the findings recorded by us,including the admitted facts which are culled out hereinbefore, wouldalso be placed before the Raksha Mantri. Keeping in view that the post H

UNION OF INDIA THROUGH ITS SECRETARY & ORS. v.MAJ. GEN. MANOMOY GANGULY [A. K. SIKRI, J.]

is lying vacant for some time and also that time is running out insofar asthe respondent is concerned, we direct the appellants to place the matterbefore the Raksha Mantri forthwith, with no loss of time, and are hopefulthat the decision shall be taken within a week.

51. The civil appeal is partly allowed and is disposed of in theaforesaid terms.

Kalpana K. Tripathy

Appeal partly allowed.

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