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

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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 7 th

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

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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

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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

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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

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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 6 th

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

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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.

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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

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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

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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

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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-cum-

suitability’, 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

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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 ‘seniority-

cum-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-a-

vis 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  (&

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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

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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 10 th

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 10 th

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 ‘seniority-

Civil 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 10 th 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

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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

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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 10 th

July,  1992 is  concerned,  which  talks  of  ‘inter  se  seniority  and

suitability’.

46) Having made this legal position clear, we advert to the 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 23 rd 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

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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

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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 10 th July  1992 and,

therefore, there may not be anything wrong per se.  However, we

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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.

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