Case: Union of India and Ors Vs. Manomoy Ganguly

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 16 th 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 discussed in some detail afterwards) even this Note dated 23 rd 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 10 th 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 16 th 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 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 23 rd 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 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 23 rd 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 201 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.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 1

Reasoning from the judgment:
1[ds]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 Civil Appeal No. 5800 of 201 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 ArmedDGMS (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 ArmyAs 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 ofse 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 theThe expression which is to be assigned its proper meaning is ‘the inter se seniority and suitability?. Whereas the respondent argues that it is nothing butwhich 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 DGMSWhen 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. DGMSAdverting 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 view of the AFT that the post of DGMS (Army) is to be filled by the officer on the strength ofwhere 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 andSome admitted facts which are pertinent for the outcome of the present appeal need to be highlighted at this juncture. TheseThe respondent is the senior most Lt.He fulfils the eligibility criteria for appointment to the post of DGMSDGMS (Army) is treated as better post than other DGs, i.e. DGMS (Navy) and DGMSThe past practice has been to fill up the post of DGMS (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 10 th 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 notEven, in the present case, for appointment of DGMS (Army) the first Note dated 16 th 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 notIt is for the first time that in the Note dated 23 rd January 2018 the question of‘suitability? is taken up. We have used the expressionfor the reason that (as would be discussed in some detail afterwards) even this Note dated 23 rd 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 10 th July 1992, i.e. on the touchstone of ‘inter se seniority andApart 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 listedThere 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 toAs on 16 th 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 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 23 rd 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 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 mostThe 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 seis not reflected in the said Note. In fact, there is no such exercise of inter se suitability undertaken in thisIn paragraph 7 of the Note dated 23 rd 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 201 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.