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Thursday, August 2, 2018

inter se seniority and suitability.= This, according to us, is not a fair and objective consideration of his suitability for the post of DGMS (Army) as it is not necessary to have working experience in IHQ alone. Mr. Patwalia had vehemently argued that the respondent had adequate administrative experience while working as Major General in Southern Command, which was equally relevant, doing similar nature of duties from which he has gained sufficient experience making him aptly suitable for the post of DGMS (Army). He had also pointed out that in the past, officers who are appointed to the post of DGMS (Army) were not necessarily those officers 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 find that there has not been any proper and valid consideration in applying the criteria of inter se seniority and suitability. For the aforesaid reasons, we agree with the ultimate conclusion of the AFT that appointment of Lt. General Sanjiv Chopra to the post of DGMS (Army) warrants to be quashed.- However, since we have not agreed with the conclusion of the AFT that the appointment to the post of DGMS (Army) is not based on seniority alone, it may not be proper to uphold such a direction of the AFT. While setting aside this direction, we remit the case back to the Raksha Mantri. We repose full faith in the Raksha Mantri and are confident that she would consider the entire matter in a totally dispassionate manner, with utmost objectivity and depicting total fairness.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5800 OF 2018
UNION OF INDIA THROUGH ITS
SECRETARY & ORS. .....APPELLANT(S)
VERSUS
MAJ. GEN. MANOMOY GANGULY .....RESPONDENT(S)
J U D G M E N T
A.K. SIKRI, J.
The respondent herein was commissioned in the Army
Medical Corps on 3rd March, 1980. By ascending the career
ladder, he has reached the position of Lieutenant General
(hereinafter referred to as Lt. General), which he occupies at
present, though it is a different matter that he had to struggle a lot
for claiming his rightful promotion to the rank of Lt. General from
that of Major General. Brief factual narration concerning his
promotion from Major General to the rank of Lt. General shall be
stated at the relevant stage. He is now aspiring to hold the
position of Director General Medical Services (Army) [hereinafter
Civil Appeal No. 5800 of 2018 Page 1 of 40
referred to as ‘DGMS (Army)] which has been denied to him by
the appellants. Feeling aggrieved, the respondent had
approached the Armed Forces Tribunal (for short, ‘ AFT’),
Principal Bench, New Delhi by means of O.A. No. 372 of 2018
which has been allowed by the AFT vide its judgment dated 7th
May, 2018. Direction was issued to the appellants to post the
respondent as DGMS (Army) “as expeditiously as possible and
certainly not later than one month from today and for that purpose
take all necessary consequential steps”. The appellants have
taken exception to the outcome, as they feel that the matter has
not been examined in correct legal perspective. This has led to
the filing of the present appeal wherein the validity of the
aforesaid judgment dated 7th May, 2018 of the AFT is called in
question.
2) The cognizable background facts, which require mentioning for
the purposes of appreciating the nature of legal controversy and
resolution thereof, are recapitulated hereinbelow:
ROUND I : THE EARLIER LITIGATION
3) As mentioned above, the respondent was commissioned in the
Army Medical Corps on 3rd March, 1980. He kept on getting
promotions from time to time and attained the rank of Major
Civil Appeal No. 5800 of 2018 Page 2 of 40
General on 14th November, 2013.
4) When the respondent became eligible for consideration for
promotion to the next rank of Lt. General in due course he was
considered for promotion to the said rank by the Special
Promotion Board (Medical) [for short, ‘SPB’] on 20th January, 2016
but was not empaneled for promotion. Thereafter, he was
considered for promotion to this rank as a 1st review case on 3rd
October, 2016, but again not empaneled. He had submitted a
statutory complaint dated 22nd June, 2016, after his first
consideration to the said post and rejection thereof, to the
Government of India wherein he was granted partial redress by
order dated 30th January, 2017 inasmuch as it was ordered that
the assessment of Technical Officer in the Annual Confidential
Report (ACR) for the year 2014 be expunged on the grounds of
inconsistency. The expunction of these remarks necessitated
special review of his case for promotion to the rank of Lt. General.
Review Board again did not empanel him. This led to lodging of
another statutory complaint dated 3rd June, 2017, wherein he
primarily questioned the award of lesser marks by the three
Service Chiefs who were the Members of the SPB under the head
“Overall Profile”. It may be noted that he was awarded 1.5 marks,
out of 2 marks, under the caption ‘Overall Profile’ and his
Civil Appeal No. 5800 of 2018 Page 3 of 40
grievance was that he was entitled to better marks under this
head. Since disposal of statutory complaint was taking time, the
respondent preferred O.A. No. 1093 of 2017 before the AFT
assailing his non-selection to the rank of Lt. General. After
completion of pleadings, matter was heard and vide judgment
dated 2nd September, 2017 the AFT held that he was wrongly
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 vacant on 1st November, 2017. The appeal against that
order of the AFT preferred by the appellant No.1/Union of India,
was dismissed by this Court on 10th November, 2017 holding that
no interference with the direction of the AFT was warranted and
the appellant was directed to take further steps, without loss of
time, in terms of the directions given by the AFT in its judgment
dated 2nd September, 2017.
5) The manner in which the aforesaid judgment was implemented
and grievance of the respondent was ultimately redressed only at
the highest level by giving him promotion to the rank of Lt.
General needs to be mentioned at this stage as these events
have some bearing on the present case. Some of the
observations of the AFT and the directions given by it may be
Civil Appeal No. 5800 of 2018 Page 4 of 40
reproduced in the first instance. These are as under:
“10. We have checked and rechecked the records. A plain
comparison of the applicant’s revised profile after getting
redressal will indicate that the applicant with 91.25
quantified marks jumps to seventh place, above Maj. Gen
Sanjiv Chopra having 91.15 quantified marks, and not 16th /
15th as indicated in Note 3 above notes and also stated in
the counter affidavit which is totally false. If the two are
compared in totality, the applicant is entitled to same Board
Marks which were given to Maj Gen Sanjiv Chopra i.e. 1.7
out of two marks and would be higher in merit than Maj
Gen Sanjiv Chopra.
xxx xxx xxx
14. Therefore, in the interest of justice, we quash the
proceedings of the Review Special Promotion Board held
on 21.03.2017 in respect of the applicant due to wrong
Board marks allotted to him in this Board as a result of
incorrect date presented to the Board Members by the
Secretary of the Board. We also direct that the applicant
be put through a fresh Review Special Promotion Board to
consider him for promotion to the rank of Lt. Gen in
consonance with the paramters of relevant policies and his
changed profile after allotting entitled Board marks as
pointed out above, and his seniority restored. In the
meantime the respondents will refrain from filling up the
post of DGMS(Army) falling vacant on 01.11.2017 and will
only proceed after the case of the applicant is decided by
the Board.”
6) While affirming the aforesaid order, this Court in its judgment had
made the following observations:
“21) In the original SPB meeting, Major General Sanjiv
Chopra was awarded 1.70 out of 2 marks whereas the
respondent was awarded 1.50 marks. Lesser marks given
to the respondent were because of the reason that marks
awarded to him out of 93 were lesser than Mr. Sanjiv
Chopra. Result of the redressal was that the marks of the
respondent became higher than Mr. Sanjiv Chopra which
necessitated Review SPB. This Review SPB meeting has
Civil Appeal No. 5800 of 2018 Page 5 of 40
to be on the same standards which were adopted in
original SPB meeting.”
7) A clear message in the aforesaid order of the AFT as well as
order of this Court was that the respondent is to be assigned 1.70
marks insofar as ‘overall profile’ was concerned, which was the
standard adopted by the SPB (Medical) itself on an earlier
occasion. On the award of 1.70 marks under the aforesaid head,
the overall tally of marks of respondent would have been more
than Major General Sanjiv Chopra who was junior to the
respondent and was promoted as Lt. General. As a natural
corollary, the respondent would have also been entitled to
promotion in the said rank of Lt. General.
8) However, notwithstanding this simple logic, the respondent had to
struggle hard even thereafter to get his legitimate due. In the
fresh Review by SPB (Medical) held on 4th December, 2017, the
respondent was again given 1.5 marks by the SPB (Medical).
When the respondent came to learn about the same, he
immediately rushed to the AFT by means of M.A. No. 1518 of
2017 in O.A. No. 1093 of 2017. This application was filed on 6th
December, 2017 seeking restraint against the appellants from
filling up the post of DGMS (Army). In this application, the AFT
passed orders dated 7th December, 2017 directing the appellant
Civil Appeal No. 5800 of 2018 Page 6 of 40
not to fill up the post till the time review of the SPB is approved by
the Competent Authority. It also called for the records for its
perusal. Fortunately, for the respondent, when the matter was
examined by the Competent Authority, i.e., the Raksha Mantri, it
did not approve the review undertaken by SPB awarding 1.5
marks to the respondent and recommended his promotion. This
recommendation met the approval of the ACC as well. The
respondent was, accordingly, promoted to the rank of Lt. General
on 1st March, 2018 only.
9) When M.A. 1518/2017 was taken up by the AFT, after notice to
the appellant on 2nd February, 2018, the aforesaid note of
Competent Authority of the Ministry of Defence (MoD) was shown
to the AFT. The Government was directed to file an affidavit
indicating if the name of the respondent for the post of DGMS
(Army) had been sent in the proposal to the MoD or not? In
response, Army filed the affidavit on 8th February, 2018 stating
that Director General Armed Forces Medical Service (for short,
‘DGAFMS’) had considered the case of the respondent but found
him not suitable for forwarding his name for DGMS (Army) to the
Ministry of Defence (MoD) and it was approved by the Chief of
Army Staff as well. It was also stated that some other officers had
been recommended for appointment.
Civil Appeal No. 5800 of 2018 Page 7 of 40
10) After finding that his name was not forwarded to MoD for
appointment to the post of DGMS (Army), the respondent filed
O.A. 372 of 2018 before the AFT which has been allowed as
aforesaid.
ORDER OF THE ARMED FORCES TRIBUNAL
11) The AFT has narrated the background in which the grievance of
the respondent for promotion to the rank of Lt. General came to
be redressed after he won the judicial battle before the AFT as
well as this Court.
12) Thereafter, it noted the contention of the counsel for the
respondent that name of the respondent, being the senior most
officer, ought to have been included in the panel of names
forwarded by the DGAFMS for appointment to the post of DGMS
(Army) to the Competent Authority. Based on the said
submission, the AFT directed the appellants to file the affidavit as
to whether name of the respondent was included in the panel of
names recommended for the appointment or not. In the reply, the
appellants took the position that name of the respondent was
considered for the appointment to the DGMS (Army) but he was
not found ‘suitable’ for the said post and Lt. General Sanjiv
Civil Appeal No. 5800 of 2018 Page 8 of 40
Chopra, who was the next senior officer, was recommended for
this post.
13) The AFT noted that circular dated 10th July, 1992 lays down
criteria of appointment to the posts of DGMS (Army) which
mentions not only seniority but suitability as well. We may
reproduce the criteria laid down in the said circular in order to
appreciate the manner in which the AFT proceeded with the
matter:
“2. Taking into account various aspects relating to the
appointment of DGsMS of Services the following criteria is
laid down for their appointment, in future :
(i) The inter-se seniority and suitability of officers in the
rank of Lt. Gen. (and equivalent) holding the posts of
Comdt AMC Centre and School, Comdt AFMC, Pune and
the Addl. DGAFMS shall be assessed in the light of their
earlier experience of serving in particular services and they
shall be considered for appointment as DGsMS of services
provided they have a minimum remainder service of six
months, from the date of the vacancy.
(ii) If, after the exercise of (I) above, none of the officers
are found 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 considered for such appointments.
(iii) The lateral shifting of DGMS of one Service to
another Service may be considered only in exception
circumstances.”
14) The criteria mentions ‘inter se seniority and suitability of the
officers in the rank of Lt. General (and equivalent)’. What is the
Civil Appeal No. 5800 of 2018 Page 9 of 40
exact meaning and scope of this criteria is the bone of contention.
According to the AFT, it meant ‘seniority-cum-suitability’. The
AFT, on that basis, formulated the following three questions
which, according to it, arose for its consideration.
“(i) What is the judicial interpretation given by the Court to
the concept of seniority cum suitability?
(ii) Whether the post of DGMS (Army) which is to be
tenated in terms of the circular of 10th July, 1992 is required
to be appointed based on seniority cum suitability, and
does it give the option to the Respondents for rejecting a
candidate to the post of DGMS(Army) despite he having
been otherwise fit and fulfilling all other eligibility criteria;
(iii) Whether an officer who has tenure of less than one
year can be appointed by the Respondents despite the
minimum tenure prescribed by its own circular.”
15) Insofar as question no. 1 is concerned, in order to find an answer
thereto, the AFT referred to the law laid down in various
judgments defining the meaning of ‘seniority’ and how the
principle of ‘merit-cum-seniority’ and ‘seniority-cum-merit’ are to
be applied. Based on the discussion contained in the cited
judgments, the AFT summed up the position 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
given prime importance and merely because a person
happens to be more meritorious, he cannot be promoted or
appointed overlooking the seniority. The usage of the term
“merit cum seniority” is totally converse to this. In the latter
concept, the merit will prevail over seniority. Another
indispensable factor is where ever the term “merit” is used
Civil Appeal No. 5800 of 2018 Page 10 of 40
as a prefix or as suffix, it will entail a comparison of two
officers so far as their merit is conce5rned, but in the case
of seniority cum suitability, no such comparison is
envisaged. Suitability of an officer is totally dependent on
the individual characterstic of the officer concerned. An
officer may be senior, but he may be unsuitable because of
his competence, integrity or any other reasons, but then he
has to be declared as unsuitable or unfit and it is only in
such circumstances that his claim to be appointment of a
particular post will be overlooked. This would be in our
considered view the answer to the first query.”
16) Applying the aforesaid principle, as culled out by the AFT, in the
instant case where the criteria was noticed as ‘seniority-cumsuitability’,
the AFT has taken the view that seniority is a decisive
factor and suitability is a secondary factor. Then it proceeded on
the premises that since it was not the case of the appellants that
the respondent is unsuitable, he was wrongly overlooked. The
AFT also remarked that there was a deliberate attempt to
somehow recommend the name of Lt. General Sanjiv Chopra and
ignore the respondent. It also found that there have always been
a convention to appoint senior most person to the post of DGMS
(Army) inasmuch as the appellants were not able to cite even a
single case in last 20-30 years where the seniority was
overlooked. Contrary thereto, name of the respondent was not
even forwarded by the DGAFMS to the Competent Authority for
consideration while sending the names of two other officers
(including Lt. General Sanjiv Chopra). In this way the respondent
Civil Appeal No. 5800 of 2018 Page 11 of 40
was wrongly ignored, was the opinion of the AFT.
17) After arriving at the aforesaid conclusion, the AFT has remarked
that though in normal circumstances the AFT would have given
direction to the appellant to consider the suitability of the
respondent and pass necessary order, however, that would only
give another lever in the hands of appellant to declare him
unsuitable. Therefore, on that basis, the AFT has itself directed
the appellant to appoint the respondent to the post of DGMS
(Army), primarily going by its interpretation to the criteria viz.
seniority is the decisive factor and the respondent is the senior
most and also that the appellants had given fair treatment to the
respondent in the past.
THE ARGUMENTS
18) Mr. K.K. Venugopal, learned Attorney General appearing for the
appellants, attacked the very approach adopted by the AFT in
dealing with the issue at hand. Referring to the Circular dated 1st
June 1992, which lays down the criteria for appointment of DGMS
(Army), he submitted that the said circular very clearly mentions
the criteria of ‘inter se seniority and suitability’. According to him,
the Tribunal wrongly read this criteria as equivalent to ‘senioritycum-suitability’
and in the process totally glossed over the phrase
Civil Appeal No. 5800 of 2018 Page 12 of 40
‘inter se’. His submission was that the AFT formulated wrong
questions, particularly question Nos. 1 and 2, which led it in wrong
direction and resulted in wrong answers. Stressing the word ‘inter
se’ he emphasised that this prefix applied not only to seniority but
to suitability as well. Thus, it was inter se seniority and inter se
suitability of the eligible persons which was required to be
adjudged. He submitted that even if the respondent was senior
most, when it came to inter se suitability of the respondent vis-avis
other eligible officers, Lt. General Sanjiv Chopra was found to
be more suitable for the post and for this reason he was
recommended for appointment to the post of DGMS (Army). In
order to support the aforesaid argument, the learned Attorney
General produced the Notings dated 23rd January 2018 and 24th
January 2018. He pointed out that in this Noting the criteria laid
down was taken note of and the case of the respondent was
considered in the light of the said criteria in the following manner:
“3. The criteria laid down by the MoD for the appt of
DGsMS are placed at enclosure 1A & 2A. As per the
criteria, Lt Gen (& equivalent) will be assessed for the appt
of DGsMS in the light of their earlier experience in a
particular service, provided they have a minimum residual
service of 01 (one) year from the date of occurrence of
vacancy.
xx xx xx
6) MR 04141M Maj Gen Manomoy Ganguly, VSM is
approved for the promotion to the rank of Lt Gen (&
Civil Appeal No. 5800 of 2018 Page 13 of 40
Equivalent) in AMC vide MoD ID Note No
3(2)/2017/D(Medical) dated 19th January, 2018 (Encl – 4A).
The Gen Officer on assumption of the rank of Lt Gen would
superannuate on 31st May, 2019 and would have a residual
service of more than 01 (one) year. The officer has been
proposed separately for the appt of DGHS (AF) office of
the DGAFMS.
xx xx xx
7) it is submitted that the DGAFMS has held extensive
deliberations regarding the consideration of MR 04141M
Maj Gen Manomoy 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 on 4th December, 2017. It has been
submitted that, Maj Gen Manomoy Ganguly, VSM would be
newly promoted from the rank of Maj Gen and does not
have previous experience to the working and environs of
the IHQ of the MoD. His proposal, therefore, for appt in the
office of DGAFMS as DGHS(AF) would be commensurate
with his restored seniority as well as provide him the
opportunity to become familiar with the functions, roles and
responsibilities of the office of the DGAFMS and various
service HQs. The Gen Officer on promotion to the rank of
Lt Gen (& Equivalent) would then superannuate on 31st
May, 2019. Against this backdrop, the COAS has
approved the panel for inclusion of Maj Gen Manomoy
Ganguly, VSM for the appt of DGHS (AF).”
19) Vis-a-vis the respondent, case of Lt. General Sanjiv Chopra, the
next senior most officer, was considered who had residual service
of 1 year and 17 days and, therefore, was also eligible and it was
found that he was more suitable for the post in question and the
Note recorded this consideration 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:
Civil Appeal No. 5800 of 2018 Page 14 of 40
Sr No. Personal Particulars Remarks
(a) Lt Gen Sanjiv Chopra, VSM
Col Comdt
(MR 04142P)
DGHS (AF) office of
DGAFMS
Recommended for
appt of DGMS
(Army)
(b) Surg V Adm U K Sharma
(MR 04262N)
DG (Org & Pers) office of
DGAFMS
Not
Recommended.
10. Lt Gen Sanjiv Chopra, VSM in his illustrious service
career of more than 37 years, has tenanted important staff
and command appt viz: Brig Training at AFMC Pune, Brig
IC Adm Base Hospital, Delhi Cantt., ACIDS (Med) at HQ
IDS, New Delhi, Commandant MH Meerut and Base
Hospital, Delhi Cantt. and MG (Med) HQ Delhi Area.
11. Lt Gen Sanjiv Chopra, VSM took over the appointment
of Director General of Hospital Services (Armed Forces) in
the office of the DGAFMS on 18th November, 2016 and
assumed the appt of Col Commandant of the Army Medical
Corps on 9th July, 2017. He has, thus, been recommended
for the appointment of DGMS (Army). Proposal for his relief
is being submitted separately.
12. MR-04262N Surg Vadm UK Sharma, DG (Org & Pers)
in the office of DGAFMS is the senior most Medical
Specialist and Nephrologist. The Flag Officer has been
proposed for permanent secondment to Army in the rank of
Lt Gen for the appointment of Commandant AH (R&R)
which is falling vacant on 31st March, 2018 consequent to
superannuation of MR-03992M Lt Gen AK Das. Hence, he
is not recommended for the appointment of DGMS (Army).”
This Note prepared by one Brig. B. Sridhar mentions that it
has the approval of DGAFMS as well as the Chief of the Army
Staff.
20) On the basis of the aforesaid Note, Director (Medical) prepared
his Note dated 24th January 2018 as per which Lt. General Sanjiv
Civil Appeal No. 5800 of 2018 Page 15 of 40
Chopra was recommended for appointment to DGMS (Army). Mr.
Venugopal pointed out that even in this Note it was reiterated as
to why DGAFMS had not included the name of the respondent
and also specifically recorded the reason given by DGAFMS in
recommending the name of Lt. General Sanjiv Chopra. Relevant
portion of this Note is as under:
“Preceding notes may please be perused. DGAFMS has
submitted proposal for posting/appointment of DGMS
(Army) and the panel of officers proposed for the post
contains the following two names:
Sr No. Personal Particulars Remarks
(a) Lt Gen Sanjiv Chopra, VSM,
Col Comdt
(MR 04142P)
DGHS (AF)
Recommended for
appointment to
DGMS (Army)
(b) Surg V Adm U K Sharma,
(MR 04262N)
DG (Org & Pers)
Not
Recommended.
2. It may be highlighted here that DGAFMS has not
included the name of MR 04141M Maj Gen Manomoy
Ganguly, VSM, who is now the senior most Lt Gen (&
Equivalent) officer in the AMC having residual service of
one year eligible for appointment as DGMS (Army). It may
also be noted here that in the past, the senior most Lt. Gen
(& Equivalent) officer in the AMC are invariably appointed
as DGMS (Army).
3. In this regard, DGAFMS has stated that “the DGAFMS
has held extensive deliberations regarding consideration of
MR 04141M Maj Gen Manomoy Ganguly, VSM for the
appointment of DGMS (Army) consequent to his approval
for promotion to the rank of Lt. Gen. (& Equivalent) in the
AFMS by a Review Promotion Board held on 4th December,
2017. It has been submitted that Maj Gen Manomoy
Ganguly, VSM would be newly promoted from the rank of
the IHQ of the MoD. His proposal therefore for
appointment in the office of DGAFMS as DGHS (AF) would
Civil Appeal No. 5800 of 2018 Page 16 of 40
commensurate with his restored seniority as well as
provide him the opportunity to become familiar with the
functions, roles and responsibilities of the office of the
DGAFMS and various service HQs. The Gen Officer on
promotion to the rank of Lt Gen (& Equivalent) wold then
superannuate on 31st May, 2019. Against this backdrop,
the COAS has approved the panel for inclusion of Maj Gen
Manomoy Ganguly, VSM for the appointment of DGHS
(AF)”.
Below this Note, the Additional Secretary (JN) put the
following remarks:
“Panel sub. By DGAFMS at para 1 of the note is sub. for
kind consideration of RM for selection of DGMS (Army).”
It was further put up to the Defence Secretary and
thereafter to the Raksha Mantri, who approved the same.
21) Based on the aforesaid Notings, the argument developed by the
learned Attorney General was that this exercise was strictly in
accordance with the criteria laid down in the Administrative
Instructions dated 10th July 1992 which, inter alia, lays down the
following procedure:
(i) Inter se Seniority of Lt Generals
(ii) Their Suitability;
(iii) Assessment of their suitability in the light of their earlier
experience of service in particular service on the date of
occurrence of their vacancy vide Government of India dated 10th
July, 1992;
Civil Appeal No. 5800 of 2018 Page 17 of 40
(iv) Residual service of one year; and
(v) In case no service Lt Gen is found suitable then Maj Gen
who are empanelled for promotion to Lt Gen may also be
considered.
22) It was submitted that in the matter of appointment to the post of
DGsMS of the Services, the ‘assessment of suitability’ of a Lt.
General or its equivalent plays a vital and significant role. This is
further reiterated by the fact that according to the policy, if none is
found suitable, the criteria even caters for consideration of a Maj
Gen (approved for promotion to Lt. General) for the said post.
Consequently, even a junior who is empanelled but yet to be
promoted to the rank of Lt. General, can be considered and
appointed as DGMS.
23) Mr. Venugopal also submitted that the assessment of suitability
per se involves judging the fitness of person to be appointed to
the post of DGMS. This is ensured by way of a consultative
process and thereafter formulation and submission of a proposal
by the DGAFMS as the Cadre Controlling Authority with the
approval of the respective Chiefs of Staff for sanction of the
Government of India assumes vital importance. In other words,
the fitness of a person to be appointed as DGMS is evaluated in
Civil Appeal No. 5800 of 2018 Page 18 of 40
the consultative process. According to him, this process of
consultation/deliberation based on record falls in the realm of
‘suitability’, and consequently, evaluation of worth and merit of an
officer for being appointed to the post of DGMS.
24) He also submitted that while the ‘seniority’ and ‘residual service
clause’ provide a threshold limit or bar to determine the eligibility
for consideration, the ‘suitability’ clause in the policy provides for
procedure to be followed to assess fitness of the officer to hold
the post based on his appointments held, ability to lead the
AMC/Equiv in operations and challenging circumstances,
organisational fitness for job (appointment) content, leadership
qualities, competence, experience, knowledge, integrity and the
like. Ultimately, the appointment to the post of DGMS is approved
by exercising the executive powers of the President through the
Central Government, which was followed in the present case.
25) He also argued that when it comes to suitability of a person to
man a particular post, it was to be considered by the appropriate
authority and such considered opinion of the Competent Authority
could not come within the purview of judicial review as held in
Mahesh Chandra Gupta v. Union of India and Others1
 in the
1 (2009) 8 SCC 273
Civil Appeal No. 5800 of 2018 Page 19 of 40
following words:
“42. Hence, Article 217(1) and Article 217(2) operate in
different spheres. Article 217(1) answers the question as to
who “should be elevated” whereas Article 217(2) deals with
the question as to who “could be elevated”. Enrolment of
an advocate under the 1961 Act comes in the category of
who “could be elevated” whereas the number of years of
actual practise put in by a person, which is a significant
factor, comes in the category as to who “should be
elevated”.
43. One more aspect needs to be highlighted. “Eligibility”
is an objective factor. Who could be elevated is specifically
answered by Article 217(2). When “eligibility” is put in
question, it could fall within the scope of judicial review.
However, the question as to who should be elevated, which
essentially involves the aspect of “suitability”, stands
excluded from the purview of judicial review.”
26) He also sought to draw sustenance from the judgment of House
of Lords in Anisminic, Ltd. v. The Foreign Compensation
Commission & Anr.2
 wherein it is held that a tribunal which is the
creature of a statute is bound to act within the parameters
imposed by the statute and further that it is obligated to make its
enquiry and decision according to the law of land. For that reason
the courts can intervene when it is manifest from the record that
the tribunal, though keeping within its mandated area of
jurisdiction, comes to an erroneous decision through an error of
law. In such a case the courts have right to intervene to correct
the error.
2 (1969) 1 All E.R. 208
Civil Appeal No. 5800 of 2018 Page 20 of 40
27) Another judgment on which the learned Attorney General relied
upon was the case of Union of India and Others v. Lt. Gen.`
Rajendra Singh Kadyan and Another3
. The relevant portion is
quoted hereinbelow:
“29. The contention put forth before us is that there are
factual inaccuracies in the statement recorded by the
Cabinet Secretary in his note and, therefore, it must be
deemed to be vitiated so as to reach a conclusion that the
decision of the Government in this regard is not based on
proper material. The learned Attorney General, therefore,
took great pains to bring the entire records relating to the
relevant period which were considered by the Cabinet
Secretary and sought to point out that there were notings
available on those files which justify these remarks. Prima
facie, we cannot say, having gone through those records,
that these notings are baseless. Critical analysis or
appraisal of the file by the Court may neither be conducive
to the interests of the officers concerned or for the morale
of the entire force. Maybe 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 have
nexus with the facts on record, the same cannot be
attacked on merits. Judicial review is permissible only to
the extent of finding whether the 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.”
28) The learned Attorney General, thus, found error in the approach
of the AFT in giving primacy to ‘seniority’ alone, ignoring the
3 (2000) 6 SCC 698
Civil Appeal No. 5800 of 2018 Page 21 of 40
second element, namely, ‘comparative suitability’. He also
submitted that observation of the AFT that in the past only senior
most officers were appointed as DGMS (Army) was factually
incorrect as one Air Marshal H.K. Maini, though senior, was
sidetracked and his junior Lt. General L.P. Sadhotra was
appointed as DGMS (Army) on the basis of suitability. Mr.
Venugopal went to the extent of arguing that if the wrong principle
formulated by the AFT is sustained, it may lead to serious
consequences inasmuch as this very criteria is adopted not only
for the post of DGMS (Army) but other more important and
sensitive posts like Chiefs of the Army, Air Force, Navy as well.
29) Mr. Patwalia, learned senior counsel appeared for the respondent
defended the order of the AFT by raising multiple arguments. At
the outset, he highlighted the manner in which, according to him,
the respondent was treated shabbily by the concerned officers. In
this regard, he pointed out the manner in which he was earlier
refused promotion to the post of Lt. General and the difficulties he
had to surmount even after his success before the AFT as well as
this Court, inasmuch as, in spite of the categorical directions, the
Review Board still chose not to empanel him for promotion to the
rank of Lt. General But for a timely objectivity shown by the
Civil Appeal No. 5800 of 2018 Page 22 of 40
Raksha Mantri, the respondent would have been left in the lurch
even for the post of Lt. General
30) Mr. Patwalia then pointed out that there had always been a
practice of appointing the senior most eligible officer to the post of
DGMS (Army). He submitted that solitary instance of Air Marshal
H.K. Maini stated now by the appellants would not advance their
case because of the reason that it is Air Marshal H.K. Maini
himself who chose not to seek appointment to the post of DGMS
(Army) because of his failing health. Apart therefrom, argued the
learned senior counsel, there was no instance even as per the
appellants.
31) In this hue, he submitted that even in the instant case DGAFMS
had initially prepared the Note dated 16th January 2018 for
appointment to the post of DGMS (Army) on the basis of seniority.
This Note was prepared at the time when case of the respondent
for promotion to the rank of Lt. General had not been
recommended by the Board and this non-recommendation was
forwarded to the Raksha Mantri. Thus, as on that date, the
DGAFMS proceeded on the basis that the respondent was not in
the reckoning. He, thus, considered Lt. General Sanjiv Chopra to
be the senior most person and recommended his name for
Civil Appeal No. 5800 of 2018 Page 23 of 40
appointment as DGMS (Army) on the basis of his seniority. This
was reflected in paragraph 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
DGAFMS is held by the senior most Lt Gen, followed by
the appt of the DgsMS which is held by the offrs in the
order of seniority in the rank 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 AFMC and Comdt
& OIC Records, AMC C&C, Lucknow.
3. The annual average vacancies arising in a calendar
year is around 4-5. Placement of empanelled Maj Gen (&
Equiv) offrs on promotion to the next higher rank is
followed strictly on the basis of their seniority and the
availability of the appt falling vacant due to chain
movement within the cadre to maintain inter se seniority
and hierarchy of the appts. MR-04228K Maj Gen Anup
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 18 Nov 2016 for the vacancies arising in 2017, and
hence their names were correctly forwarded in the panel of
names of Gen officers for the appt of Comdt & OIC
Records AMC C&C Lucknow vide this 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
the order of seniority for administrative reasons...”
He pointed out that in paragraph 4 the case of the
respondent was discussed and it was mentioned that since his
placement was a sub judice matter, he was not being considered
for appointment.
Civil Appeal No. 5800 of 2018 Page 24 of 40
32) According to Mr. Patwalia, when it was later found that the
Raksha Mantri had approved the name of the respondent for
promotion to the rank of Lt. General as this recommendation was
declassified on 19th January 2018, the DGAFMS got prepared
another Note dated 23rd January 2018 (on which the learned
Attorney General has placed reliance) by bringing the criteria of
comparative suitability for the first time. According to him, it was a
clear device to deny the respondent posting as DGMS (Army)
who had now become the senior most officer and the event
showed that the authorities were bent upon favouring Lt. General
Sanjiv Chopra or their intention was to deny the respondent its
legitimate claim somehow.
33) Coming to the Administrative Instructions in the Circular dated 10th
July 1992 laying down the criteria for appointment to the office of
DGMS (Army), the submission of Mr. Patwalia was that the
correct interpretation would be that the senior most person had to
be considered for the said post in the first instance, subject to his
suitability. If he was found unsuitable only then the next senior
most officer would be considered. According to him, there was no
concept of ‘more suitable’ in the said Instructions. He submitted
that the law which was discussed by the Tribunal on ‘seniorityCivil
Appeal No. 5800 of 2018 Page 25 of 40
cum-merit’ was to emphasis that seniority plays predominant role
even when merit is also one of the considerations. Therefore, in
the instant case when it is ‘seniority-cum-suitability’, it implies that
the senior most person, unless declared as unsuitable or unfit,
was to be given appointment to the post in question. Therefore,
according to him, the Tribunal has approached the issue in right
perspective. For this purpose, he heavily relied upon paragraphs
Nos. 9 and 10 from the judgment of this Court in B.V. Sivaiah
and Others v. K. Addanki Babu and Others4
 which read as
under:
“9. The principle of “merit-cum-seniority” lays greater
emphasis on merit and ability and seniority plays a less
significant role. Seniority is to be given weight only when
merit and ability are approximately equal. In the context of
Rule 5(2) of the Indian Administrative Service/Indian Police
Service (Appointment by Promotion) Regulations, 1955
which prescribed that “selection for inclusion in such list
shall be based on merit and suitability in all respects with
due regard to seniority” Mathew, J. in Union of India v.
Mohan Lal Capoor has said: (SCC p. 856, para 37)
“[F]or inclusion in the list, merit and suitability in all
respects should be the governing consideration and
that seniority should play only a secondary role. It is
only when merit and suitability are roughly equal that
seniority will be a determining factor, or if it is not
fairly possible to make an assessment inter se of the
merit and suitability of two eligible candidates and
come to a firm conclusion, seniority would tilt the
scale.”
Similarly, Beg, J. (as the learned Chief Justice then was)
has said: (SCC p. 851, para 22)
4 (1998) 6 SCC 720
Civil Appeal No. 5800 of 2018 Page 26 of 40
“22. Thus, we think that the correct view, in conformity
with the plain meaning of words used in the relevant
Rules, is that the ‘entrance’ or ‘inclusion’ test for a
place on the select list, is competitive and
comparative applied to all eligible candidates and not
minimal like pass marks at an examination. The
Selection Committee has an unrestricted choice of
the best available talent, from amongst eligible
candidates, determined by reference to reasonable
criteria applied in assessing the facts revealed by
service records of all eligible candidates so that merit
and not mere seniority is the governing factor.”
10. On the other hand, as between the two principles of
seniority and merit, the criterion of “seniority-cum-merit”
lays greater emphasis on seniority. In State of Mysore v.
Syed Mahmood while considering Rule 4(3)(b) of the
Mysore State Civil Services General Recruitment Rules,
1957 which required promotion to be made by selection on
the basis of seniority-cum-merit, this Court has observed
that the Rule required promotion to be made by selection
on the basis of “seniority subject to the fitness of the
candidate to discharge the duties of the post from among
persons eligible for promotion”. It was pointed out that
where the promotion is based on seniority-cum-merit, the
officer cannot claim promotion as a matter of right by virtue
of his seniority alone and if he is found unfit to discharge
the duties of the higher post, he may be passed over and
an officer junior to him may be promoted.”
34) He also submitted that as the authorities had themselves applied
the criteria laid down in the said Circular to mean seniority is
subject to suitability (i.e. unless found unsuitable), this
administrative instruction by the aforesaid prolonged practice had
established itself as a legal principle from which the appellants
could not deviate. He also referred to the following judgments in
support of his submission that under certain circumstances even
Civil Appeal No. 5800 of 2018 Page 27 of 40
the Court can give a positive direction to appoint or promote a
person to a particular post:
(a) State of Bihar v. Dr. Braj Kumar Mishra and Others5
(b) State of Mysore and Another v. Syed Mahmood and
Others6
INTERPRETATION OF “INTER SE SENIORITY AND
SUITABILITY”
35) We have bestowed due consideration to various nuances of the
issue, as argued by both the counsel for their respective parties.
36) Before adverting to the specificity in which the appellant dealt with
the matter of the respondent herein, we deem it appropriate to
first go into the parameters which are required for the purpose of
considering the appointments to the post of DGMS (Army). The
respondent belongs to Army Medical Corps (AMC) which comes
under Armed Forces Medical Service (AFMS). In this service,
there are ten appointments in the rank of Lt. General (&
Equivalent) which are held by Officers belonging to AMC. It has
three tier structure. On the top is the post of DGAFMS, who is the
head of AFMS. He functions directly under the Government of
India, Ministry of Defence and is responsible to the Government
for overall medical policy concerning the armed forces. The
5 (1999) 9 SCC 546
6 (1968) 3 SCR 363
Civil Appeal No. 5800 of 2018 Page 28 of 40
functions of the DGAFMS as laid down in Paragraph 18 of the
Regulations for the Medical Services of Armed Forces 2010
(Revised Version) (RMSAF) issued under the authority of the
Government of India, Ministry of Defence, include inter alia that
he is the Cadre Controlling Authority in respect of all officers of
the AFMS, and is responsible for terms and conditions of services
of all officers including for processing cases and obtaining
Government sanction where necessary. Below the DGAFMS,
there are three posts of Director General Medical Services, one
each for the Army, Navy and the Air Force called the DGMS
(Army) DGMS (Navy) and DGMS (Air) respectively. The DGs of
the three Services are Medical Advisors to the respective Chief of
Staff and are responsible for the day to day administration and
proper functioning of the medical services of the Army, Navy and
Air Force. The remaining six posts of Lt General or their
equivalent are placed in other appointments held in other
establishments of the Armed Forces.
37) DGMS (Army) is in the second tier which is treated as higher than
DGMS (Navy) or DGMS (Air). The post of DGMS (Army) is
normally tenable by an Officer of the rank of Lt. General belonging
to AMC and he acts as Principal Medical Advisor to the Chief of
Civil Appeal No. 5800 of 2018 Page 29 of 40
Army Staff.
38) As noted above, administrative instructions dated 10th July, 1992
are issued by the Government of India, Ministry of Defence laying
down the specific criteria for appointment to the post(s) of DGMS.
We have already reproduced the aforesaid criteria. However,
since para (i) is the bone of contention, we reproduce the same
hereinbelow for the sake of continuity of discussion:
“(i) The inter-se seniority and suitability of officers in the
rank of Lt Gen (and equivalent) holding the posts of Comdt
AMC Centre and School, Comdt AFMC, Pune and the Addl
DG AFMS shall be assessed in the light of their earlier
experience of serving in particular services and they shall
be considered for appointment of DGs MS of services
provided they have a minimum remainder service of six
months from the date of occurrence of the vacancy.”
39) The expression which is to be assigned its proper meaning is ‘the
inter se seniority and suitability’. Whereas the respondent argues
that it is nothing but ‘seniority-cum-suitability’ which means senior
most Lt. General subject to his suitability for the post of DGMS
(Army) is to be appointed, the plea of the appellant is that the
word ‘inter se’ has also to be given its due meaning and it is
related both to seniority as well as suitability. On that basis, it is
argued that suitability is to be judged ‘inter se’ between the
eligible persons and one who is more suitable would be entitled to
appoint as DGMS (Army).
Civil Appeal No. 5800 of 2018 Page 30 of 40
40) When we read the aforesaid para (i) as a whole, we find force in
the submission of the appellant that the word ‘inter se’ applies
both to seniority as well as suitability. Therefore, ‘inter se
suitability’ is also to be assessed inasmuch as this assessment is
‘in the light of their earlier experience of serving in a particular
service’. As far as consideration on the parameters of ‘inter se
seniority’ is concerned, it would 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 ‘inter se suitability’. Two
questions arise from the above. First, what is the meaning of
‘suitability’. Second, how the expression ‘inter se suitability’ is to
be construed, i.e. whether it should be understood as choosing a
‘more suitable’ officer for appointment as DGsMS. As far as inter
se suitability is concerned, all the eligible officers in the rank of Lt.
General (& Equiv), having regard to their earlier experience of
serving in particular services, they are to be considered for
appointment as DGsMS of services (i.e. DGMS (Army)).
41) Let us first consider the meaning of ‘suitability’.
42) In English parlance, the word ‘suitable’ is assigned the meaning
as ‘appropriate, fitted for the purpose or acceptable’. The concise
Oxford Dictionary defines the word suitable as ‘well fitted for the
Civil Appeal No. 5800 of 2018 Page 31 of 40
purpose; appropriate’. This ordinary meaning is to be given effect
to as a general guide, unless this expression is given special
meaning in a statute or rule in administrative instructions. In R
(Quintavalle) v. Human Fertilisation Authority7
, the House of
Lords remarked that “the word ‘suitability’ is an empty vessel
which is filled with meaning by context and background.
43) In service jurisprudence, where the word ‘suitable’ is normally
examined from the point of view as to whether a particular person
is suitable 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 particular post would be seen and then, going by the calibre,
competence, attributes, skill and experience of the candidate, it
would be ascertained as to whether such 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 the satisfaction of his
employer.
44) It, thus, follows from the above that the person to be eligible
should quality 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
7 (2005) UKHL 28
Civil Appeal No. 5800 of 2018 Page 32 of 40
C&C; and
(iii) he should have a minimum remainder service of one year
from the date of occurrence of the vacancy.
45) Adverting to the second question, the prefix ‘inter se’ has also to
be given some meaning as it cannot be rendered otiose.
Therefore, whereas while assessing ‘suitability’, it has to be seen
that a particular officer is not unfit for the post, when it comes to
‘inter se suitability’, it has reference to assessing the suitability of
all eligible officers and thereafter finding who is more suitable to
occupy such a post. We have to keep in mind that these are very
high ranking posts and, therefore, the competent authority is
supposed to choose a more suitable officer for such posts. We
are of the opinion that for expressing such an intention, the
Circular could have been worded more appropriately and with
clarity to avoid such doubts. However, since the word ‘inter se’ is
used, it implies that the intention behind laying down this criteria
was to give these posts to a better suited person after evaluating
their inter se suitability. Of course, while doing this exercise
seniority of an officer is also to be given due weightage, meaning
thereby if the senior most person is competent to hold the post,
he is to be given preference. Therefore, we conclude that the
Civil Appeal No. 5800 of 2018 Page 33 of 40
view of the AFT that the post of DGMS (Army) is to 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
suitability simpliciter but ‘inter se’ seniority and suitability. The
expression ‘inter se’ is totally ignored and there is no discussion
thereupon at all, which has led the AFT to take wrong view insofar
as interpretation of the criteria laid down in the Circular dated 10th
July, 1992 is concerned, which talks of ‘inter se seniority and
suitability’.
46) Having made this legal position clear, we advert to the facts of the
present case.
47) Some admitted facts which are pertinent for the outcome of the
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 of
DGMS (Army).
(iii) DGMS (Army) is treated as better post than other DGs, i.e.
DGMS (Navy) and DGMS (AF).
(iv) The past practice has been to fill up the post of DGMS
Civil Appeal No. 5800 of 2018 Page 34 of 40
(Army) from a senior most officer. Before the AFT, the appellants
failed to give any example where seniority was ignored. In the
past, i.e. ever since issuance of Circular dated 10th July 1992, the
practice has been to appoint the senior most Lt. General from
Army. Before the AFT, the appellants could not cite a single
deviation to the aforesaid practice. In the appeal, example of one
Air Marshal H.K. Maini is given. However, it is adequately
answered by the respondent by pointing out that that happened
because Air Marshal Maini himself chose not to be posted as
DGMS (Army) because of his health reasons, which the
appellants could not controvert.
(iv) Even, in the present case, for appointment of DGMS (Army)
the first Note dated 16th January 2018 by DGAFMS, in no
uncertain terms, stated that the appointment to this post is to be
made ‘strictly on the basis of their seniority’, meaning thereby the
senior most Lt. General (& Equiv) is to be posted. That Note was
prepared on the assumption that the respondent is not in the
reckoning as his case for promotion to the post of Lt. General was
not recommended.
(v) It is for the first time that in the Note dated 23rd January
2018 the question of so-called ‘suitability’ is taken up. We have
used the expression ‘so-called’ for the reason that (as would be
Civil Appeal No. 5800 of 2018 Page 35 of 40
discussed in some detail afterwards) even this Note dated 23rd
January 2018 does not reflect that any exercise of “inter se
suitability” is carried out strictly in accordance with the criteria laid
down in the Circular dated 10th July 1992, i.e. on the touchstone
of ‘inter se seniority and suitability’.
48) Apart from the aforesaid admitted facts, we also would like to
state some of the findings as recorded by the AFT, with which we
are in agreement. These are listed below:
(i) There has been some attempt (though we are not
suggesting as to whether it was deliberate or bona fide) in
denying the respondent his claim for promotion to the rank of Lt.
General Events in detail on this aspect have already been
narrated above, which need not be reiterated. Suffice it is to
mention that even after the orders of the AFT and affirmation
thereafter by the judgment of this Court, the Board had stuck to
its earlier notion about the respondent. Fortunately for him, the
Raksha Mantri took a fair and objective view in the matter and
granted him his deserved promotion, which was legitimately due
to him.
(ii) As on 16th January 2018, when DGAFMS prepared his Note
for appointment to the post of DGMS (Army), which had fallen
Civil Appeal No. 5800 of 2018 Page 36 of 40
vacant few months ago, he only knew that the Review Board had
again refused to recommend the case of the respondent in the
rank of Lt. General Therefore, he proceeded on the basis that
since the respondent is not occupying the post of Lt. General he
is out of reckoning and, accordingly, Lt. General Sanjiv Chopra
was the senior most officer. Proceeding on the aforesaid
presumption, after excluding the respondent from consideration,
he recommended Lt. General Sanjiv Chopra for appointment as
DGMS (Army) being the senior most in the AFMS cadre. This
Note went to the extent of recording that not only promotion is
strictly on the basis of their seniority, it was being done even for
the posts of ‘DGAFMS’, ‘DGsMS’ and the ‘CDC IDC’ who are
retained in the order of seniority for administrative reasons.
Within three days thereafter, when the decision of the Raksha
Mantri to promote the respondent to the rank of Lt. General was
declassified, in the fresh Note prepared on 23rd January 2018,
there was a complete turn around. For the first time, it was
mentioned in this Note that as per the criteria Lt. 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 10th July 1992 and,
therefore, there may not be anything wrong per se. However, we
Civil Appeal No. 5800 of 2018 Page 37 of 40
find substance in the submission of the learned senior counsel
appearing for the respondent that such a realisation dawned only
after coming to know that the respondent was also in the
reckoning for appointment to the post of DGMS (Army) and he
was the senior most officer.
(iii) The manner in which this Note is written leaves a
reasonable impression that the exercise was done to exclude the
respondent from appointment to the post of DGMS (Army). In the
first instance, though the criteria of assessment ‘in the light of
their earlier experience in a particular service’ is mentioned in
paragraph 3 of the Note, it nowhere reproduces the exact criteria,
namely, ‘inter se seniority and suitability’. Thus, while considering
the earlier experience in a particular service, it was to be done in
the light of inter se seniority-cum-suitability is not reflected in the
said Note. In fact, there is no such exercise of inter se suitability
undertaken in this Note.
(iv) In paragraph 7 of the Note dated 23rd January 2018, case of
the respondent is discussed. Qua him it is mentioned that since
he would be newly promoted from the rank of Major General, he
does not have ‘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 of DGMS (Army). This,
Civil Appeal No. 5800 of 2018 Page 38 of 40
according to us, is not a fair and objective consideration of his
suitability for the post of DGMS (Army) as it is not necessary to
have working experience in IHQ alone. Mr. Patwalia had
vehemently argued that the respondent had adequate
administrative experience while working as Major General in
Southern Command, which was equally relevant, doing similar
nature of duties from which he has gained sufficient experience
making him aptly suitable for the post of DGMS (Army). He had
also pointed out that in the past, officers who are appointed to the
post of DGMS (Army) were not necessarily those officers 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
find that there has not been any proper and valid consideration in
applying the criteria of inter se seniority and suitability.
49) For the aforesaid reasons, we agree with the ultimate conclusion
of the AFT that appointment of Lt. General Sanjiv Chopra to the
post of DGMS (Army) warrants to be quashed.
50) However, in view of our aforesaid discussion, we are of the view
that the direction of the AFT that the respondent be straightaway
appointed to the post of DGMS (Army) may not be proper. We
are conscious about the apprehensions of the AFT, which may not
Civil Appeal No. 5800 of 2018 Page 39 of 40
unfounded altogether. However, since we have not agreed with
the conclusion of the AFT that the appointment to the post of
DGMS (Army) is not based on seniority alone, it may not be
proper to uphold such a direction of the AFT. While setting aside
this direction, we remit the case back to the Raksha Mantri. We
repose full faith in the Raksha Mantri and are confident that she
would consider the entire matter in a totally dispassionate
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,
would also be placed before the Raksha Mantri. Keeping in view
that the post is lying vacant for some time and also that time is
running out insofar as the respondent is concerned, we direct the
appellants to place the matter before the Raksha Mantri forthwith,
with no loss of time, and are hopeful that the decision shall be
taken within a week.
51) The civil appeal is partly allowed and is disposed of in the
aforesaid terms.
.............................................J.
(A.K. SIKRI)
.............................................J.
(ASHOK BHUSHAN)
NEW DELHI;
AUGUST 01, 2018.
Civil Appeal No. 5800 of 2018 Page 40 of 40

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