AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2018 (8) TMI 2159
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....irector General Medical Services (Army) [hereinafter 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....
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....ner 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 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....
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....d orders dated 7th December, 2017 directing the Appellant 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....
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....MS 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 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 tenanted 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 ten....
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.... 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 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 ....
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.... 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, m....
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....HS (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 commensurate with his restored seniority as well as provide him the opportunity to become familiar with the functions, roles and respons....
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....rocess. 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 purv....
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....s 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 Att....
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....mmended 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 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 movem....
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.... 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 Ors. v. K. Addanki Babu and Ors. (1998) 6 SCC 720 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 ....
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....) State of Bihar v. Dr. Braj Kumar Mishra and Ors. (1999) 9 SCC 546. (b) State of Mysore and Anr. v. Syed Mahmood and Ors. (1968) 3 SCR 363. 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 functions of the DGAFMS as laid down in Paragraph 18 of the Regulations for the Medical Services of Armed Force....
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....o 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). 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....
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....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 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 t....
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....9;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 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 ....
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....g and environs of the IHQ of the MoD'. On that basis, he is proposed for appointment as DGHS (AF) instead of DGMS (Army). 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. 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 ....