TaxTMI 
TaxTMI 
2018 (8) TMI 2159
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....e is now aspiring to hold the position of Director 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 ....
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....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 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 Boa....
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.... Appellants from filling up the post of DGMS (Army). In this application, the AFT passed 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 consider....
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....cancy. (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 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....
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....int 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 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 appeari....
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....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 ....
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....ase 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 Manom....
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....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 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 ex....
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....ote 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 ....
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.... 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 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.), D....
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....r 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-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 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 in....
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....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 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 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....
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....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). 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' ....
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....rom 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 i....
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....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 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 Boa....
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....roduces 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, 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).....