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

Undoubtedly, ‘motive’ plays significant role in a case based on circumstantial evidence where the purpose would be to establish this important link in the chain of circumstances in order to connect the accused with the crime. But, for the case on hand, proving motive is not an important factor when abundant direct evidence is available on record. The confessional statement of the appellant itself depicts the 15 motive of the team of accused in pursuit of which they committed the robbery at the house of informant and the appellant being part of it. It is also clear from the statement of the accused—appellant that the inmates of the house suffered injuries at the hands of the accused party as they had beaten them with the pieces of wood (sticks) and created terror among them. The recovery of bloodstained sticks from the orchard of Kamal Jain and the FSL report (Ext.X) proves the circumstance with no manner of doubt. Another facet of the case as portrayed by the appellant in his defense is that the informant implicated the appellant in the crime with the connivance of I.O. due to old enmity. However, we do not find any evidence or material on record in support of such claim made by the appellant. On the other hand, not only by the recovery of Rs.400/­ from the house of appellant his participation stands proved, with the other incriminating evidence available on record.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1333 of 2009
RAJU MANJHI      APPELLANT
VERSUS
STATE OF BIHAR           RESPONDENT
JUDGMENT
N.V. RAMANA, J.
1. This appeal is directed against the judgment dated 3rd August,
2005 passed by the High Court of Judicature at Patna in
Criminal Appeal (D.B.) No. 447 of 2001, whereby the High
Court dismissed the appeal filed by the accused—appellant
herein and upheld the order of conviction and sentence passed
by the learned Additional District & Sessions Judge, Gaya.
2. Briefly stated, the facts of the case as culled out from the case
of prosecution are that in the intervening night of 11th and 12th
2
January,   1999   a   group   of   assailants   consisting   10   to   12
persons including the appellant herein, all aged between 20 to
25 years, barged into the house of one Kamdeo Singh of the
village Banbareya, P.S. Moffasil, District Gaya and decamped
with golden ornaments, pants and cash. In the protest by the
inmates   of   the   house,   the   assailants   caused   injuries   to
Kamdeo Singh, his father­in­law Kameshwar Singh, son Niraj
Kumar (PW2), wife Sita Devi and daughter­in­law Reena Devi.
The stolen items include golden bangle, golden rings, cash of
Rs.5,000/­ and altogether the worth of stolen property would
be Rs.25,000/­. At about 2 am in the night, Kamdeo Singh
lodged a complaint with the Moffasil police, on the basis of
which   a   case   under   Section   395/412,   IPC   was   registered
against unknown persons. Zamil Ashgar (PW10)—Officer incharge
  of   the   Muffasil   P.S.   took   up   the   investigation   and
rushed to the place of occurrence. He recorded statement (Ext.
4) of Kamdeo Singh (PW3), prepared injury reports in respect
of the inmates of the house and sent them to hospital for
treatment. As the injured Kameshwar Singh had succumbed
3
to the injuries, charged under Section 396, IPC was replaced
for the offence under Section 395, IPC against the accused. In
the course of further investigation, police arrested some of the
accused,  recorded   their   statements,   recovered   some  money
from them. Out of the six accused persons charged with the
offence, one Rameshwari Manjhi @ Umeshwari Manjhi has
been declared as absconder. The accused pleaded not guilty
and claimed to have been implicated falsely, therefore, wanted
to be tried.
3. At the trial, the prosecution in support of its case examined as
many   as   eleven   witnesses.   Relying   upon   the   incriminating
material as well as depositions and confessional statements of
the accused, the trial Court came to the conclusion that the
prosecution   could   prove   the   guilt   of   the   accused   beyond
reasonable doubt. Accordingly, the trial Court convicted the
accused for the offence punishable under Section 396, IPC
and sentenced them to suffer rigorous imprisonment for life
and also to pay a fine of Rs.1,000/­ each, failing which to
4
further   suffer   rigorous   imprisonment   for   a   period   of   six
months.
4. All   the   aggrieved   accused   persons,   including   the   appellant
herein, carried the matter by way of separate appeals before
the High Court. By an elaborate judgment which is impugned
herein,   the  High   Court   dismissed   the   appeal   affirming  the
conviction and sentence awarded by the trial Court. That is
how the accused Raju Manjhi is in appeal before us.
5. At  the  outset, we  would  like  to  record that  whenever  this
appeal came up for hearing before us, learned counsel for the
appellant   remained   absent.   Therefore,   in   the   interest   of
justice,   we   directed   the   Supreme   Court   Legal   Services
Committee   to   appoint   an   advocate   to   defend   the   case   of
appellant. In accordance therewith, Ms. Nidhi, learned counsel
appeared and argued on behalf of the appellant.
6. We have heard learned counsel appearing for the parties on
either side and carefully perused the material available on
record.
5
7. A specific argument has been put forward on behalf of the
appellant that though there was no concrete proof to establish
the participation of the appellant in the alleged crime, the trial
Court as well as the High Court believed the prosecution story
on flimsy grounds and convicted him. Merely on the basis of
prosecution story that when the police raided the house of
appellant, he was available in the house and an amount of
Rs.400/­   has   been   recovered   from   his   possession,   the
appellant   cannot   be   stamped   as   an   accused   and   being
involved in the crime. As a matter of fact, there was no act of
dacoity   or   burglary   took   place   on   the   alleged   place   of
occurrence in which the accused—appellant was a participant.
Moreover, the appellant was not identified by any witness in
the   test   identification   parade   and   also   in   the   Court.   This
circumstance itself points at the innocence of the appellant.
The case was fastened against the accused out of enmity and
it   is   with   the   connivance   of   the   informant   and   I.O.   who
dragged the accused into the alleged crime. The recovery made
by the police, of a petty amount of Rs.400/­ from the house of
6
the appellant could not be an incriminating factor. One cannot
claim it to be the looted money connecting him to the crime,
more so when there was no claim for such money by the
informant or any other prosecution witness. Even the alleged
confessional statement of the appellant, cannot be given legal
validity as it was not made before a Magistrate.  Particularly
when the trial Court itself expressed doubt on the genuineness
of   the   confessional   statement   as   the   alleged   confessional
statements   of   other   accused   were   also   under   the   same
handwriting and drawn by the police, they cannot be taken
into account.
8. It is further case of the appellant that the prosecution could
not prove the motive of the appellant in committing the crime.
There was no injury report brought on record in respect of
PWs 1, 2 and 3 who were stated to have sustained injuries in
the occurrence when the I.O. said to have drawn their injury
reports. There were so many latches on the part of prosecution
and the appellant herein had no criminal antecedents, yet the
Courts below without taking into account the importance of all
7
these circumstances simply believed the prosecution story and
held   the   appellant   guilty   of   the   offence.   Therefore,   the
impugned judgment calls for the interference of this Court and
deserves to be set aside.
9. On the other hand, learned counsel appearing for the State of
Bihar supported the view taken by the Courts below.   He
submitted that there was enough material on record which
clearly establishes the guilt of the accused beyond reasonable
doubt.   There   was   credible   evidence   available   on   record   to
believe that the appellant was a party to the accused group
and was guarding at the entrance of the victim’s house when
the other participants were on the spree of ransacking the
households of the victim. The statement of confession recorded
at the instance of the accused—appellant not only proves his
guilt but also led to the discovery of new facts in the case. It
helped the I.O. for the recovery of incriminating material and
looted cash from his house. The accused—appellant had by
participating in the crime, shared the looted articles and there
8
is no bar to validate his confessional statement under the
provisions of Indian Evidence Act.
10. Having heard learned counsel on either side we have given our
intense consideration to the facts and circumstances of the
case and taken note of the analysis adopted by the Courts
below   in   reaching   to   the   conclusion.   First   and   foremost,
considering the primary contention advanced on behalf of the
appellant that there was no instance of alleged dacoity on the
time and place of occurrence wherein the accused was a party,
we find from the deposition of Reena Devi (PW1), daughter­inlaw
of the informant that on the intervening night of 11th and
12th January, 1999 on hearing some disturbance, she woke up
and found the assailants armed with sticks, looting articles in
the house. When she tried to resist, they assaulted her and
took away her ornaments including golden bangle and a chain
and also tried to snatch her child. A brief case of her husband
Neeraj Kumar (PW2) containing clothes and cash of Rs.5,200/­
has also been stolen. Altogether the worth of stolen property
would be Rs.25,000/­. In that commotion, hearing her hue
9
and cry her father­in­law—PW3 (informant) and mother­in­law
came there who objected the assailants and they too were
assaulted by the accused.
11. Corroborating   the   statement   of   PW1,   PW2—Neeraj   Kumar,
stated that the accused caused injuries to Kameshwar Singh
due   to   which   he   fell   down   on   the   ground   and   later   on
succumbed to the injuries in the hospital. The evidence of
PW3—informant also on the same lines as that of PWs 1 and
2.   According   to   Zamil   Asghar—the   Investigating   Officer
(PW10),   on   receiving   information   about   the   occurrence   of
dacoity, the FIR (Ext.5) was registered and thereafter he visited
the place of occurrence and recorded the statement of the
informant and other inmates of the house and sent the injured
to Piligrim Hospital, Gaya for their treatment.  Upon knowing
that the alleged assailants were at Mohalla Balapar where they
were consuming wine, he proceeded to that place and then
rushed   to   the   house   of   main   accused   Munna   Manjhi   and
apprehended   him   at   Samitee   Bhawan.   On   his   confession
about the commission of the offence and disclosure of the
10
names of other assailants, the I.O. raided the houses of other
accused and apprehended them. He categorically stated that
the appellant herein has made confessional statement which
was   prepared   by   him   (Ext.   7/1).   He   has   also   visited   one
orchard   belonging   to   Kamal   Jain   situated   near   Jag   Jiwan
College and from there he recovered two bloodstained wooden
pieces (sticks) under Exts. III and III/1 allegedly used in the
crime and also seized polythene wine bags under Exts. I to
I/V, besides recovering money from the possession of accused
in   the   denomination   of   Rs.100   x   3   and   Rs.   50   x   4.   The
evidence   of   other   prosecution   witnesses   and   also   the
confessionals   statements   of   accused   assailants   and   the
recoveries made by the police substantiate the act of dacoity
took place at the house of the informant and the injuries
sustained by the inmates.
12. The other ground urged on behalf of the appellant is that the
so   called   confessional   statement   of   the   appellant   has   no
evidentiary   value   under   law   for   the   reason   that   it   was
extracted from the accused under duress by the police.  It is
11
true, no confession made by any person while he was in the
custody   of   police   shall   be   proved   against   him.   But,   the
Evidence Act provides that even when an accused being in the
custody   of   police   makes   a   statement   that   reveals   some
information leading to the recovery of incriminating material or
discovery of any fact concerning to the alleged offence, such
statement can be proved against him. It is worthwhile at this
stage to have a look at Section 27 of the Evidence Act.
27.   How   much   of   information   received   from
accused may be proved.—Provided that, when any
fact is deposed to as discovered in consequence of
information received from a person accused of any
offence, in the custody of a police officer, so much of
such   information,   whether   it   amounts   to   a
confession or not, as relates distinctly to the fact
thereby discovered may be proved.
13. In   the   case   on   hand,   before   looking   at   the   confessional
statement   made   by   the   accused—appellant   in   the   light   of
Section 27 of the Evidence Act, may be taken into fold for
limited   purposes.   From   the   aforesaid   statement   of   the
appellant, it is clear that he had explained the way in which
the accused committed the crime and shared the spoils. He
disclosed the fact that Munna Manjhi was the Chief/Head of
12
the team of assailants and the crime was executed as per the
plan made by him. It is also came into light by his confession
that the accused broke the doors of the house of informant
with the aid of heavy stones and assaulted the inmates with
pieces of wood (sticks). He categorically stated that he and
Rampati   Manjhi   were   guarding   at   the   outside   while   other
accused were committing the theft. The recoveries of used
polythene pouches of wine, money, clothes, chains and bangle
were   all   made   at   the   disclosure   by   the   accused   which
corroborates his confessional statement and proves his guilt.
Therefore, the confessional statement of the appellant stands
and satisfies the test of Section 27 of the Evidence Act.
14. As regards the claim of appellant that non­identification of the
accused   by   the   witness   would   not   substantiate   the
prosecution   case,   admittedly   no   prosecution   witness   has
identified the accused—appellant which does not mean that
the prosecution case against the accused is on false footing.
As   a   general   rule,   identification   tests   do   not   constitute
substantive evidence. The purpose of identification test is only
13
to help the investigating agency as to whether the investigation
into the offence is proceeding in a right direction or not. In our
view, non­identification of the appellant by any prosecution
witness would not vitiate the prosecution case. It is evident
from the confessional statement of the accused that at the
time of occurrence he and another accused Rampati Manjhi
were   guarding   outside   the   informant’s   house   while   other
accused were committing dacoity inside. We do not think that
there is any justification to the argument that as none of the
prosecution witnesses could be able to identify the appellant,
he   cannot   be   termed   as   accused.   In   our   view,   such   nonidentification
would not be fatal to the prosecution case in the
given facts and circumstances.
15. The identification parade belongs to the stage of investigation,
and   there   is   no   provision   in   the   Code   which   obliges   the
investigating   agency   to   hold   or   confers   a   right   upon   the
accused to claim, a test identification parade. They do not
constitute   substantive   evidence   and   these   parades   are
essentially governed by Section 162 of the Code. Failure to
14
hold a test identification parade would not make inadmissible
the   evidence   of   identification   in   Court.   The   weight   to   be
attached to such identification should  be a matter for the
Courts of fact. In appropriate cases it may accept the evidence
of identification even without insisting on corroboration [See :
Kanta   Prashad  v.  Delhi   Administration,  1958 CriLJ 698
and Vaikuntam Chandrappa and Ors. v. State of Andhra
Pradesh, AIR 1960 SC 1340].
16. Moving on to the other limb of argument advanced on behalf of
the appellant that the accused—appellant had no motive and
the Courts below have failed to consider the fact that the
evidence on record is not sufficient to establish motive of the
accused. Undoubtedly, ‘motive’ plays significant role in a case
based on circumstantial evidence where the purpose would be
to establish this important link in the chain of circumstances
in order to connect the accused with the crime. But, for the
case on hand, proving motive is not an important factor when
abundant   direct   evidence   is   available   on   record.   The
confessional   statement   of   the   appellant   itself   depicts   the
15
motive   of   the   team   of   accused   in   pursuit   of   which   they
committed  the  robbery  at  the  house  of  informant   and  the
appellant being part of it.
17. It is also clear from the statement of the accused—appellant
that the inmates of the house suffered injuries at the hands of
the accused party as they had beaten them with the pieces of
wood (sticks) and created terror among them. The recovery of
bloodstained sticks from the orchard of Kamal Jain and the
FSL report (Ext.X) proves the circumstance with no manner of
doubt. Another facet of the case as portrayed by the appellant
in his defense is that the informant implicated the appellant in
the   crime   with   the   connivance   of   I.O.   due   to   old   enmity.
However, we do not find any evidence or material on record in
support of such claim made by the appellant. On the other
hand, not only by the recovery of Rs.400/­ from the house of
appellant   his   participation   stands   proved,   with   the   other
incriminating evidence available on record.
16
18. In view of the foregoing discussion and having regard to the
facts and circumstances of the case we have no hesitation to
conclude that the prosecution has proved the case against the
accused—appellant   beyond   all   reasonable   doubts.   We,
therefore,   find   no   infirmity   or   illegality   in   the   impugned
judgment passed by the High Court. Consequently, the appeal
preferred by the accused being bereft of any substance, the
same stands dismissed.
…………......................J.
 (N.V. RAMANA)
..................................J.
        (S. ABDUL NAZEER)
NEW DELHI,
August 02, 2018.

We hold that the University was not entitled and competent to devise its own fee structure in the present matter without having the fee fixed by the Committee on Fixation of Fee as contemplated under 1992 Act.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6654 OF 2018
(Arising out of Special Leave Petition (Civil) No.30567 of 2016)
M. Aamira Fathima and Others ………Appellants
VERSUS
Annamalai University and Others ..…. Respondents
WITH
CIVIL APPEAL NOS. 6655-56 OF 2018
(Arising out of Special Leave Petition (Civil) No.30658-30659 of 2016)
WITH
CIVIL APPEAL NO.6657-59 OF 2018
(Arising out of Special Leave Petition (Civil) No.31078-31080 of 2016)
WITH
CIVIL APPEAL NO.6660 OF 2018
(Arising out of Special Leave Petition (Civil) No.9806 of 2017)
WITH
CIVIL APPEAL NO.6661 OF 2018
(Arising out of Special Leave Petition (Civil) No.28543 of 2017)
2
JUDGMENT
Uday Umesh Lalit, J.
Special leave to appeal granted in all matters.
These appeals are directed against the common judgment and order
dated 26.09.2016 passed by the High Court of Judicature at Madras in Writ
Appeal No.1637 of 2014 and other connected matters. Matter arising from
Writ Appeal No.1637 of 2014 which in turn arose from Writ Petition
No.20720 of 2014, namely M. Aamira Fathima and others v. Annamalai
University and others is taken to be the lead matter and the facts leading to
the filing of the said writ appeal are set out in detail hereunder.
2. Annamalai University (hereinafter referred to as “the University”) was
constituted under the Annamalai University Act, 1928 (Madras Act No.1 of
1929)1
. This Act received the assents of Governor and Governor General on
03.11.1928 and 11.12.1928 respectively and was first published in the Fort
of St. George Gazette dated 01.01.1929. The University established
Respondent No.2 College, namely, Rajah Muthiah Medical College in the
year 1985.
1Words “Tamil Nadu” were substituted for the word “Madras” by Tamil Nadu Adaptation
of Law and Order, 1969
3
3. In 1992 the State legislature enacted the Tamil Nadu Educational
Institutions (Prohibition of Collection of Capitation Fee) Act, 1992
(hereinafter referred to as “1992 Act”). Section 2(b) defined Educational
Institution as under:-
“(b) “educational institution” means any institution by
whatever name called, whether managed by any person, private
body, local authority, trust or University, carrying on the
activity of imparting education leading to a degree or diploma
(including a degree or diploma in law, medicine or engineering)
conferred by any University established under any law made by
the Legislature of the State of Tamil Nadu and any other
educational institution or class or classes of educational
institutions (other than any educational institution established
by the Central Government or under any law made by
Parliament) as the Government may, by notification, specify;”
Section 4 dealt with regulation of tuition fee or other fees or deposits
and was initially as under:-
“4. (1) Notwithstanding anything contained in any other law for
the time being in force, the Government may, by notification,
regulate the tuition fee or any other fee or deposit that may be
received or collected by any educational institution or class or
classes of such educational institutions in respect of any or all
class or classes of students :
Provided that before issuing a notification under this subsection,
the draft of which shall be published in the Tamil Nadu
Government Gazette stating that any objection or suggestion
which may be received by the Government, within such period
as may be specified therein, shall be considered by them.
4
(2) No educational institution shall receive or collect any fee or
accept deposit in excess of the amount notified under subsection
(1).
(3) Every educational institution shall issue an official receipt
for the fee or deposit received or collected by it.”
4. After the judgment of this Court in Islamic Academy of Education
and another v. State of Karnataka and others2
, sub-section (2-A) was
added along with an Explanation in Section 4 of 1992 Act by the State
Legislature vide Tamil Nadu Educational Institutions (Prohibition of
Collection of Capitation Fee) Amendment Act, 2007. As a result of the
aforesaid insertion of sub-section (2-A) and Explanation, Section 4 of 1992
Act now reads as under:
“4. (1) Notwithstanding anything contained in any other law for
the time being in force, the Government may, by notification,
regulate the tuition fee or any other fee or deposit that may be
received or collected by any educational institution or class or
classes of such educational institutions in respect of any or all
class or classes of students :
Provided that before issuing a notification under this subsection,
the draft of which shall be published in the Tamil Nadu
Government Gazette stating that any objection or suggestion
which may be received by the Government, within such period
as may be specified therein, shall be considered by them.
(2) No educational institution shall receive or collect any fee or
accept deposit in excess of the amount notified under subsection
(1).
2
(2003) 6 SCC 697
5
(2-A) Notwithstanding anything contained in sub-section (1) or
sub-section (2), no educational institution imparting education
leading to a degree in medicine or engineering shall receive or
collect any fee in excess of the amount fixed by the ‘Committee
on fixation of fee’ constituted by the Government.
Explanation – For the purpose of this sub-section ‘Committee
on fixation of fee’ means the Committee constituted in
pursuance of the direction of the Supreme Court in Islamic
Academy of Education and another v. State of Karnataka and
others [(2002) 6 SCC 697].
(3) Every educational institution shall issue an official receipt
for the fee or deposit received or collected by it.”
5. The University, though originally established as a private University
had always received contributions and funding from the State Government.
But the University never adhered to the statutory provisions or the norms set
by the State Government or the University Grants Commission resulting in
financial losses during the years 2009-10 and 2010-11. Under the orders
passed by the Government of Tamil Nadu a Special Local Fund Audit Team
was appointed which found various irregularities, whereafter by another
order dated 14.12.2012 a High Level Committee was constituted to analyze
the audit report submitted by the Special Local Fund Audit Team. The
events which took place thereafter were summed up by the Single Judge in
the instant matters and the relevant observations in paragraphs 17 to 19 are
quoted hereunder:
6
“17. After examining the report and the supporting material,
this High Level Committee concluded that the Founder had
grossly abused the privileges conferred upon him and that
despite receiving grants from the State Government to the tune
of Rs.427.98 crores during the period from 1998-99 to 2012-13,
the University had landed up in serious financial crisis.
Therefore, the Committee recommended that the Government
shall issue necessary directions to the Senate and the Syndicate
and also to appoint some person to carry out those directions.
18. In pursuance of the aforesaid recommendations, the
Government issued a letter dated 7.3.2013 to the Vice
Chancellor, to convene the meeting of the Syndicate and
Senate, to respond to the report of the Special Local Fund Audit
Team. A special meeting of the Senate was held on 13.3.2013
and the meeting of the Syndicate was held on 14.3.2013. The
report of the Syndicate showed that by and large, the findings of
the Special Local Fund Audit Team were correct. Therefore,
the Government issued a directive on 26.3.2013 to convene a
special meeting of the Senate and the Syndicate. This was
opposed by the Vice-Chancellor by a reply dated 1.4.2013 on
the ground that a second meeting will serve no purpose.
19. Therefore, the Government, by G.O. Rt. No.1401, Public
Department dated 4.4.2013, appointed an Administrator in
exercise of the powers conferred by Section 28(4) of the
Annamalai University Act, 1928. ……. ”
6. In 2013, the State Legislature enacted the Annamalai University Act,
2013 (hereinafter referred to as “2013 Act”) which came into force w.e.f.
25.09.2013 and repealed the Annamalai University Act, 1928. Sections 3(1),
4(13) and 20(1)(m) and (ab) of said 2013 Act were as under:
“3(1) On and from the date of commencement of this Act, the
Annamalai University established under the Annamalai University
Act, 1928 shall be deemed to have been established and incorporated
7
under this Act and is hereby declared to be the University by the
aforesaid name.
4. The University shall have the following objects and powers,
namely:-
(1) to (12)…………………
(13) to fix fees and to demand and receive such fees as may be
prescribed;
“20. (1) The Syndicate shall have the following powers, namely:-
(a) to (l)……………….
 (m) to prescribe the fees to be charged for admission to the
examinations, degrees, titles and diplomas of the University and
for all or any of the purposes specified in section 4:
(n) to (z)(aa)…………….
(ab) to charge and collect such fees as may be prescribed;
(ac) to (an)……………”
7. 150 students who had taken admission in First MBBS Course in
Respondent No.2 College for the Academic Session 2013-14 preferred Writ
Petition No.20720 of 2014 in the High Court of Judicature at Madras
questioning fees of more than Rs.5.54 lakhs per annum imposed by the
University. Similar challenge was raised by students studying in Dental
Courses which petitions were heard and dealt with by the High Court along
with the main matter. It was urged by the petitioners that the fees fixed in
8
Government Colleges in the State were Rs.12,290/- for MBBS Course and
Rs.10,290/- for BDS Course; that the Committee on Fixation of Fee
constituted in terms of 1992 Act had fixed the tuition fees for MBBS Course
at Rs.2.30 lakhs for two self-financing colleges, Rs.2.60 lakhs for one selffinancing
college and Rs.2.80 for other self-financing colleges and that in so
far as ESI Medical Colleges were concerned, it had fixed the tuition fees at
Rs.24,000/-. Highlighting the enormous difference between the fees charged
by the University on one hand and the scale fixed by the Government as well
as the Committee on Fixation of Fee on the other, it was prayed that the
matter for fixation of fee be referred to the Committee in terms of 1992 Act.
8. While opposing the aforesaid submissions, it was contended on behalf
of the University that the fees stipulated by the University were in terms of
its statutes and the provisions of 2013 Act: that the object of 1992 Act was to
curtail the menace of self-financing colleges imposing high fees and that the
Government Colleges and State Universities did not come within the
purview of 1992 Act: that presently the University was running in deficit and
if the fee structure was reduced it would put the financial condition of the
University in great jeopardy.
9
9. The Single Judge of the High Court by his common Judgment and
Order dated 02.12.2014 dismissed the challenge raised by the petitioners. It
was observed that the petitioners having been admitted to MBBS and BDS
Courses in pursuance of the prospectus for the year 2013-14, were bound by
the terms and conditions contained therein and were therefore estopped from
raising any challenge. Reliance in that behalf was placed on the decision of
this Court in Cochin University of Science and Technology and another v.
Thomas P. John and others3
. The Single Judge then proceeded to consider
whether the provisions of 1992 Act would apply and get attracted in the
present case. After considering the definition of Educational Institution
under Section 2(e) of 1992 Act, he observed that for the purposes of
application of the provisions of 1992 Act, the concerned Institution must
have been notified by the State Government under the said 1992 Act. It was
further observed that the University was initially established in preindependence
days and merely because the earlier Act was repealed and
replaced by 2013 Act, the first limb of Section 2(b) would not apply without
the State Government referring the University to the Fee Fixation
Committee.
3
(2008) 8 SCC 82
10
10. The correctness of the decision of the Single Judge was questioned by
the students by filing Writ Appeal Nos.1637 and 1638 of 2014. Writ Petition
Nos.6909, 6910, 12515, 27098 and 31848 of 2015 and 14562, 22911 and
26388 of 2016 preferred by some of the students were also heard along with
said writ appeals by the Division Bench of the High Court. By its common
judgment and order dated 26.09.2016 the Division Bench rejected the
challenge and dismissed the appeals. The Division Bench affirmed the
reasoning which weighed with the Single Judge. It went on to observe that
the University was empowered under 2013 Act to fix, demand and receive
such fees as were prescribed.
11. These appeals by special leave question the correctness of the decision
rendered by the Division Bench of the High Court. Mr. Ranjit Kumar,
learned Senior Advocate while leading the arguments on behalf of the
petitioners, submitted that it was completely erroneous on part of the High
Court to observe that the provisions of 1992 Act would not apply in the
present case. He further submitted that on plain reading of its provisions,
1992 Act must apply and get attracted in the present case. These
submissions were countered by Mr. S. Nandakumar, learned Advocate who
appeared for the University. In his submission, the provisions of 1992 Act
11
would not get attracted without an appropriate reference having been made
by the State Government to the Fee Fixation Committee.
12. In the present case the Single Judge considered the definition of
Educational Institution as appearing in Section 2(e) of 1992 Act and came to
the conclusion that for the purposes of application of the provisions of 1992
Act the concerned institution ought to have been notified by the State
Government and an appropriate reference must be made to the Fee Fixation
Committee. This reasoning has been affirmed by the Division Bench. It is,
therefore crucial to consider the scope and ambit of the said provision. For
facility the definition of “educational institution” can be divided in two parts
as under:
Section 2(b) “educational institution” means:
(I) any institution by whatever name called, whether managed by any
person, private body, local authority, trust or University, carrying on
the activity of imparting education leading to a degree or diploma
(including a degree or diploma in law, medicine or engineering)
conferred by any University established under any law made by the
Legislature of the State of Tamil Nadu.
and
12
(II) any other educational institution or class or classes of educational
institutions (other than any educational institution established by the
Central Government or under any law made by Parliament) as the
Government may, by notification, specify.
According to (I) part, the activity must lead to award of degree or
diploma conferred by any University established under any law made by the
Legislature of the State. There is element of certainty about this first part of
definition and it is not left to the discretion of the Government in any
manner. If there is a course which leads to award of degree or diploma by
any University as specified, the concerned institution carrying on the activity
of imparting education would be an educational institution within the
meaning of said Section 2(b).
The definition has an inclusive provision which is specified in the (II)
part and empowers the Government to specify any other educational
institution or class or classes of educational institutions. Upon such
specification by notification, such institution or class or classes of
institutions would also stand covered by the definition. The (II) part also
contains a bracketed portion which is an exclusionary aspect of the
definition. This bracketed portion excludes any institution established by the
13
Central Government or under any law made by the Parliament with respect
to which the State Government cannot, even by exercising power of
specification include such institution.
13. The aforesaid analysis thus conclusively establishes that in so far as
cases covered under (I) Part are concerned, no specification by the
Government is required or necessary. If the concerned activity leads to
award of degree or diploma by any University established under any law
made by the State Legislature, such institution shall be “educational
institution” within the meaning of provisions of Section 2(b). The
specification by notification is a pre-requisite only if the institution
concerned is otherwise not covered under (I) Part. The High Court was
completely in error in observing that for the application by the provisions of
1992 Act an educational institution must always be specified by the
Government by notification. In our view, the requirement of specification of
notification is only in respect of “any other educational institution or class or
classes of educational institutions” and has not to be read with (I) part of
definition, which part of the definition is an independent and stand alone
provision and does not require any specification by the Government.
14
14. The next question which must be considered is whether University in
the present case answers the description in (I) Part of Section 3(b) of 1992
Act. According to Section 3(1) of 2013 Act, on and from the
commencement of said Act the University established under the Annamalai
University Act, 1928 shall be deemed to have been established and
incorporated under the provisions of 2013 Act. It is well settled that
whenever a Legislation deems, by way of legal fiction that a particular state
of affairs has to be assumed, that legal fiction has to be given full effect.
After quoting famous passage of Lord Asquith in East End Dwellings Co.
Ltd. v. Finsbury Borough Council4
, this Court in Gurupad Khandappa
Magdum v. Hirabai Khandappa Magdum and others5
 held that the legal
fiction engrafted in Explanation I to Section 6 of the Hindu Succession must
be given due and full effect. There is thus no escape from the situation that
the University in the present case is the one established under any law made
by the Legislature of the State of Tamil Nadu.
41952 AC 109, 132 =(1951) 2 All ER 587
“If you are bidden to treat an imaginary state of affairs as real, you must
also imagine as real the consequences and incidents which, if the putative state of
affairs had in fact existed, must inevitably have flowed from or accompanied it;
and if the statute says that you must imagine a certain state of affairs, it cannot be
interpreted to mean that having done so, you must cause or permit your
imagination to boggle when it comes to the inevitable corollaries of that state of
affairs.”
5
(1978) 3 SCC 383
15
15. In Islamic (supra), this Court directed constitution of two
Committees, namely, Fee Fixation Committee and Admissions Committee.
Paragraph 7 of the decision dealt with the concept of Fixation of Fee by the
Committee and said paragraph was as under:
“7. So far as the first question is concerned, in our view the
majority judgment is very clear. There can be no fixing of a
rigid fee structure by the Government. Each institute must have
the freedom to fix its own fee structure taking into
consideration the need to generate funds to run the institution
and to provide facilities necessary for the benefit of the
students. They must also be able to generate surplus which must
be used for the betterment and growth of that educational
institution. In paragraph 56 of the judgment it has been
categorically laid down that the decision on the fees to be
charged must necessarily be left to the private educational
institutions that do not seek and which are not dependent upon
any funds from the Government. Each institute will be entitled
to have its own fee structure. The fee structure for each institute
must be fixed keeping in mind the infrastructure and facilities
available, the investments made, salaries paid to the teachers
and staff, future plans for expansion and/or betterment of the
institution etc. Of course there can be no profiteering and
capitation fees cannot be charged. It thus needs to be
emphasized that as per the majority judgment imparting of
education is essentially charitable in nature. Thus the
surplus/profit that can be generated must be only for the
benefit/use of that educational institution. Profits/surplus cannot
be diverted for any other use or purpose and cannot be used for
personal gain or for any other business or enterprise. As, at
present, there are statutes/regulations which govern the fixation
of fees and as this Court has not yet considered the validity of
those statutes/regulations, we direct that in order to give effect
to the judgment in T.M.A. Pai case the respective State
Governments/concerned authority shall set up, in each State, a
committee headed by a retired High Court Judge who shall be
16
nominated by the Chief Justice of that State. The other member,
who shall be nominated by the Judge, should be a Chartered
Accountant of repute. A representative of the Medical Council
of India (in short “MCI”) or the All India Council for Technical
Education (in short “AICTE”), depending on the type of
institution, shall also be a member. The Secretary of the State
Government in charge of Medical Education or Technical
Education, as the case may be, shall be a member and Secretary
of the Committee. The Committee should be free to
nominate/co-opt another independent person of repute, so that
the total number of members of the Committee shall not exceed
five. Each educational institute must place before this
Committee, well in advance of the academic year, its proposed
fee structure. Along with the proposed fee structure all relevant
documents and books of accounts must also be produced before
the Committee for their scrutiny. The Committee shall then
decide whether the fees proposed by that institute are justified
and are not profiteering or charging capitation fee. The
Committee will be at liberty to approve the fee structure or to
propose some other fee which can be charged by the institute.
The fee fixed by the Committee shall be binding for a period of
three years, at the end of which period the institute would be at
liberty to apply for revision. Once fees are fixed by the
Committee, the institute cannot charge either directly or
indirectly any other amount over and above the amount fixed as
fees. If any other amount is charged, under any other head or
guise e.g. donations, the same would amount to charging of
capitation fee. The Governments/appropriate authorities should
consider framing appropriate regulations, if not already framed,
whereunder if it is found that an institution is charging
capitation fees or profiteering that institution can be
appropriately penalised and also face the prospect of losing its
recognition/affiliation.”
16. The directions issued in Islamic (supra) including one regarding
constitution of Fee Fixation Committee came up for consideration in P.A.
17
Inamdar and others v. State of Maharashtra and others6
 and the matter
was settled in following terms:
“151. On Question 4, our conclusion, therefore, is that the
judgment in Islamic Academy insofar as it evolves the scheme
of the two Committees, one each for admission and fee
structure, does not go beyond the law laid down in Pai
Foundation and earlier decisions of this Court, which have been
approved in that case. The challenge to setting up of the two
Committees in accordance with the decision in Islamic
Academy therefore, fails……….....”
17. But the situation in the present matter stands on a slightly different
footing inasmuch as by inserting sub-section (2-A) along with an
explanation in Section 4 in 1992 Act, Fee Fixation Committee is a statutory
mechanism in terms of said provisions of 1992 Act. Said Section 4 shows
that under sub-section (1) the Government is empowered to regulate the
tuition fee or any other fees or deposits in the manner prescribed therein.
But in relation to imparting of education leading to a degree in medicine or
engineering, sub-section (2-A) has been given an overriding effect by
incorporating non-obstante provision. Sub-section (2-A), unlike sub-section
(1), does not require any notification by the Government. If an institution
carries on activity of imparting education leading to a degree or diploma as
spoken of in sub-section (2-A) of said Section 4, the fee structure has to be
that which is fixed by the Committee. The legislative intent is very clear and
6
(2005) 6 SCC 537
18
no educational institution which comes within the scope of sub-section (2-A)
can receive or collect any fees in excess of the amount fixed by the
“Committee on Fixation of Fee”.
18. We now have to deal with the submission whether the University by
virtue of Section 4(13) and 20(1)(m) of 2013 Act could charge, collect and
receive tuition fee without the intervention of “Committee on Fixation of
Fee” as contemplated by Section 4(2-A) of 1992 Act. The University by its
very nature of activities would be running numerous courses and to that
extent provisions of 2013 Act are general in nature. The provisions of
Section 4(2-A) of 1992 Act are specific and special and apply to courses
leading to degrees in Medicine and Engineering. Therefore, insofar as
professional courses leading to degrees in Medicine and Engineering are
concerned, the matter must be screened and assessed by Committee on
Fixation of Fee and the submission that the University was entitled to fix
fees on its own without the intervention of such Committee has to be
rejected. The other submission that the students were estopped from raising
a challenge must also fail. If a particular modality is prescribed by the
Legislature any action in defiance or ignorance of such modality cannot be
protected or preserved on the plea of estoppel. The reliance placed on the
decision of this Court in Cochin University of Science and Technology
19
(supra) was also misplaced. In that case students who had taken admission
in NRI Quota, thereafter contended that their fee structure be slashed to the
same level as applicable to non NRI students. The concept of estoppel was
pressed into service while rejecting said submission but that cannot be a
ground to deny the express protection available under a legislation.
19. We, therefore, allow these appeals and set aside the judgments and
orders under appeal. We hold that the University was not entitled and
competent to devise its own fee structure in the present matter without
having the fee fixed by the Committee on Fixation of Fee as contemplated
under 1992 Act. The matters shall therefore have to be referred to said
Committee and the University is directed to place the entire material
including its balance-sheet and accounts before the Committee on Fixation
of Fee within two weeks from the date of this Judgment. The Committee
shall thereafter bestow attention and fix appropriate fee structure for the
academic year 2013-14 onwards. It goes without saying that if the fee
structure fixed by the University is found by the Committee to be
inappropriate, consequential benefit and advantage shall be given to each
and every student. The Committee shall fix the appropriate fee structure for
the current academic Session 2018-19 as well. The entire exercise shall be
completed by 31.08.2018.
20
20. These appeals stand allowed in aforesaid terms. No costs.
……………..…………J.
(Arun Mishra)

………………..………J.
(Uday Umesh Lalit)
New Delhi,
July 13, 2018