UNION OF INDIA THROUGH ITS SECRETARY & ORS. versus MAJ. GEN. MANOMOY GANGULY
[2018] 9 S.C.R. 381, Supreme Court of India, 2018
Outcome: Case Partly allowed (Granted)
Segment: Facts
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UNION OF INDIA THROUGH ITS SECRETARY & ORS.
v.
MAJ. GEN. MANOMOY GANGULY
(Civil Appeal No. 5800 of 2018)
AUGUST 01, 2018
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
Service Law:
Appointment – To the post of Director General of Medical
Service (Army) [DGMS (Army) ] – Criteria for – Interpretation of
criteria of ‘inter-se seniority cum suitability’ – Held: The criteria of
‘inter-se seniority cum suitability’ implies that the post was to be
given to better suited person after evaluating ‘inter-se suitability’ –
In this criteria it cannot be said that seniority is a decisive factor
and suitability is secondary factor – The respondent in the present
case fulfilled eligibility criteria for appointment to the post – He
had adequate administrative experience – In the facts of the case
there has not been proper and valid consideration in applying the
criteria of ‘inter-se seniority and suitability’.
Words and Phrases:
‘Suitable’ – Meaning of, in the context of service
jurisprudence.
Partly allowing the appeal, the Court
HELD: 1.1 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. [Para 40] [405-F-H]
1.2. 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
purpose; appropriate’.  This ordinary meaning is to be given effect
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to as a general guide, unless this expression is given special
meaning in a statute or rule in administrative instructions. “The
word ‘suitability’ is an empty vessel which is filled with meaning
by context and background.”  [Para 42] [406-C-D]
1.3 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.  Thus, the person to be eligible
should qualify 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 C&C; and (iii) he should have
a minimum remainder service of one year from the date of
occurrence of the vacancy. [Paras 43 and 44] [406-D-H]
1.4 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.  The post in
question being very high ranking post, the
competent authority
is supposed to choose a more suitable officer for such post. 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.
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, it is not correct 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. It is not only seniority and suitability simpliciter
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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 Tribunal to take wrong view insofar as interpretation
of the criteria laid down in the Circular dated 10th July, 1992 is
concerned, which talks of ‘inter se seniority and suitability’.
[Para 45] [407-B-E]
2.1 The respondent in the preset case is the senior most
Lt. General, He fulfils the eligibility criteria for appointment to
the post of DGMS (Army), which is treated as better post than
DGMS (Navy) and DGMS (AF). The past practice has been to fill
up the post of DGMS (Army) from a senior most officer. 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.  It is for the first time that in the Note dated 23rd
January 2018 the question of so-called ‘suitability’ is taken up.
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’.
[Para 47] [407-G-H; 408-C-F]
2.2 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 of Lt. General
he is out of reckoning. Proceeding on the aforesaid presumption,
after excluding the respondent from consideration, he
recommended another officer for appointment as DGMS (Army)
being the senior most in the AFMS cadre.   Thereafter, when the
decision of the Raksha Mantri to promote the respondent to the
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rank of Lt. General was declassified, in the fresh Note prepared
on 23rd January 2018, there was a complete turn around.  For the
first time, it was mentioned in this Note that as per the criteria
Lt. General (& Equiv) will be assessed for appointment of DGMS
‘in the light of their earlier experience in a particular service’.
No doubt, this criteria is mentioned in the Circular dated 10th
July 1992 and, therefore, there may not be anything wrong per
se.  However,  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.
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).
[Para 48] [409-B-G]
2.3 Consideration of suitability for the post of DGMS (Army)
as per Note dated 23rd January 2018 is not a fair and objective
consideration. 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).  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.  Therefore,  there has not been
any
proper and valid consideration in applying the criteria of ‘inter se
seniority and suitability.’ [Para 48] [410-C-E]
2.4 However, the direction of the Tribunal that the
respondent be straightaway appointed to the post of DGMS (Army)
may not be proper. While setting aside this direction, the case is
remitted back to the Raksha Mantri. [Para 50] [411-F, H]
Mahesh Chandra Gupta v. Union of India and Others
(2009) 8 SCC 273 : [2009] 10 SCR 921 ; Union of
India and Others v. Lt. Gen.‘Rajendra Singh Kadyan
and Another (2000) 6 SCC 698 : [2000] 1  Suppl. SCR
722 ; B.V. Sivaiah and Others v.K. Addanki Babu and
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Others (1998) 6 SCC 720 : [1998] 3 SCR 782 ; State
of Bihar v. Dr. Braj Kumar Mishra and Others (1999) 9
SCC 546 : [1999] 4 Suppl. SCR 333 ; State of Mysore
and Another v. Syed Mahmood and Others [1968] 3
SCR 363 – referred to.
Anisminic,Ltd. v. The Foreign Compensation Commission
& Anr. (1969) 1 All E. R. 208 ; (Quintavalle) v. Human
Fertilisation Authority (2005) UKHL 28 – referred to.
Case Law Reference
[2009] 10 SCR 921
     referred to
Para 25
(1969) 1 All E.R.208
     referred to
Para 26
[2000] 1 Suppl. SCR 722   referred to
Para 27
[1998] 3 SCR 782
     referred to
Para 33
[1999] 4 Suppl. SCR 333   referred to
Para 34
[1968] 3 SCR 363
     referred to
Para 34
(2005) UKHL 28
     referred to
Para 42
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5800
of 2018.
From the Judgment and Order dated  07.05.2018 of the Armed
Forces Tribunal (Principal Bench), New Delhi in O.A. No.372 of 2018
and Order dated 11.05.2018 in M.A. No.791/2018 in O.A. No.372 of
2018.
K. K. Venugopal, AG, Maninder Singh, ASG, R. Balasubramanian,
Amarjeet Singh, Prabhas Bajaj, Ms. Aarti Sharma, Ms. Kanika Saran,
Harish Vaidyanathan Shankar, Ms. Nisha Mohandas, Ms. Rati Varma,
Arvind Kumar Sharma, Advs. for the Appellants.
P. S. Patwalia, Ms. Jyoti Singh, Sr. Advs., Dinesh Kumar Yadav,
Mahesh Kumar, Sudarshan Rajan, Advs. for the Respondent.
UNION OF INDIA THROUGH ITS SECRETARY & ORS. v.
MAJ. GEN. MANOMOY GANGULY
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The  Judgment of the Court was delivered by
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 referred to as ‘DGMS (Army)]  which has been denied to
him by the appellants.  Feeling aggrieved, the respondent had approached
the Armed Forces Tribunal (for short, ‘ AFT’), Principal Bench, New
Delhi  by means of O.A. No. 372 of 2018 which has been allowed by
the AFT vide its judgment dated 7th May, 2018.  Direction was issued to
the appellants to post the respondent as DGMS (Army) “as expeditiously
as possible and certainly not later than one month from today and for
that purpose take all necessary consequential steps”. The appellants
have taken exception to the outcome, as they feel that the matter has
not been examined in correct legal perspective.  This has led to the filing
of the present appeal wherein the validity of the aforesaid
judgment
dated 7th May, 2018 of the AFT is called in question.
2. The cognizable background facts, which require mentioning
for the purposes of appreciating the nature of legal controversy and
resolution thereof, are recapitulated hereinbelow:
ROUND I : THE EARLIER LITIGATION
3. As  mentioned above, the respondent was commissioned in the
Army Medical Corps on 3rd March, 1980.  He kept on getting promotions
from time to time and attained the rank of Major 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
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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 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 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
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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.
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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 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
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award of 1.70 marks under the aforesaid head, the overall tally of marks
of respondent would have been more than Major General Sanjiv Chopra
who was junior to the respondent and was promoted as Lt. General.As
a natural corollary, the respondent would have also been entitled to
promotion in the said rank of Lt. General.
8. However, notwithstanding this simple logic, the respondent had
to struggle hard even thereafter to get his legitimate due.  In the fresh
Review by SPB (Medical) held on 4th December, 2017, the respondent
was again given 1.5 marks by the SPB (Medical).  When the respondent
came to learn about the same, he immediately rushed to the AFT by
means of M.A. No. 1518 of 2017 in O.A. No. 1093 of 2017.  This
application was filed on 6th December, 2017 seeking restraint against
the appellants from filling up the post of DGMS (Army).  In this
application, the AFT passed orders dated 7th December, 2017 directing
the appellant 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.
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.
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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
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
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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 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
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where ever the term “merit” is used 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 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.
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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 ‘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.
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6)     MR 04141M Maj Gen Manomoy Ganguly, VSM is approved
for the promotion to the rank of Lt Gen (& 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.
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UNION OF INDIA THROUGH ITS SECRETARY & ORS. v.
MAJ. GEN. MANOMOY GANGULY [A. K. SIKRI, J.]
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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:
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.
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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 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:
for 
MS 
UNION OF INDIA THROUGH ITS SECRETARY & ORS. v.
MAJ. GEN. MANOMOY GANGULY [A. K. SIKRI, J.]
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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
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).”
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.
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It was further put up to the Defence Secretary and thereafter to
the Raksha Mantri, who approved the same.
21. Based on the aforesaid Notings, the argument developed by
the learned Attorney General was that this exercise was strictly in
accordance with the criteria laid down in the Administrative Instructions
dated 10th July 1992 which, inter alia, lays down the following procedure:
(i)   Inter se Seniority of Lt Generals
(ii)  Their Suitability;
(iii) Assessment of their suitability in the light of their earlier
experience of service in particular service on the date of occurrence of
their vacancy vide Government of India dated 10th July, 1992;
(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 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.
for 
GMS 
UNION OF INDIA THROUGH ITS SECRETARY & ORS. v.
MAJ. GEN. MANOMOY GANGULY [A. K. SIKRI, J.]
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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 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
 1 (2009) 8 SCC 273
 2 (1969) 1 All  E.R. 208
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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.
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 second
3(2000) 6 SCC 698
UNION OF INDIA THROUGH ITS SECRETARY & ORS. v.
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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 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
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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 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.
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
UNION OF INDIA THROUGH ITS SECRETARY & ORS. v.
MAJ. GEN. MANOMOY GANGULY [A. K. SIKRI, J.]
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time.  According to him, it was a clear device to deny the respondent
posting as DGMS (Army) who had now become the senior most officer
and the event showed that the authorities were bent upon favouring Lt.
General Sanjiv Chopra or their intention was to deny the respondent its
legitimate claim somehow.
33. Coming to the Administrative Instructions in the Circular dated
10th July 1992 laying down the criteria for appointment to the office of
DGMS (Army), the submission of Mr. Patwalia was that the correct
interpretation would be that the senior most person had to be considered
for the said post in the first instance, subject to his suitability.  If he was
found unsuitable only then the next senior most officer would be
considered.  According to him, there was no concept of ‘more suitable’
in the said Instructions.  He submitted that the law which was discussed
by the Tribunal on ‘seniority-cum-merit’ was to emphasise 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 Paragraph 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
 4 (1998) 6 SCC 720
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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)
“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 the Court can give a positive direction to appoint or
promote a person to a particular post:
UNION OF INDIA THROUGH ITS SECRETARY & ORS. v.
MAJ. GEN. MANOMOY GANGULY [A. K. SIKRI, J.]
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(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 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.
5 (1999) 9 SCC 546
6 (1968) 3 SCR 363
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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  Army
Staff.
38. As noted above, administrative instructions dated 10th July,
1992 are issued by the Government of India, Ministry of Defence laying
down the specific criteria for appointment to the post(s) of DGMS. We
have already reproduced the aforesaid criteria.  However, since para
(i) is the bone of contention, we reproduce the same hereinbelow for the
sake of continuity of discussion:
“(i)  The inter-se seniority and suitability of officers in the rank of
Lt Gen (and equivalent) holding the posts of Comdt AMC Centre
and School, Comdt AFMC, Pune and the Addl DG AFMS shall
be assessed in the light of their earlier experience of serving in
particular services and they shall be considered for appointment
of DGs MS of services provided they have a minimum remainder
service of six months from the date of occurrence of the
vacancy.”
39. The expression which is to be assigned its proper meaning is
‘the inter se seniority and suitability’.  Whereas the respondent argues
that it is nothing but ‘seniority-cum-suitability’ which means senior most
Lt. General subject to his suitability for the post of DGMS (Army) is to
be appointed, the plea of the appellant is that the word ‘inter se’ has also
to be given its
due meaning and it is related both to seniority as well as
suitability.  On that basis, it is argued that suitability is to be judged ‘inter
se’ between the eligible persons and one who is more suitable would be
entitled to appoint as DGMS (Army).
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
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‘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 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 qualify 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
  C&C; and
(iii) he should have a minimum remainder service of one year
  from the date of occurrence of the vacancy.
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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 view of the AFT that the post of DGMS (Army) is
to be filled by the officer on the strength of ‘seniority-cum-suitability’,
where seniority is a decisive factor and suitability is a secondary factor,
is not correct.  In the entire discussion resting with the aforesaid view,
the Tribunal ignored
the fact that it is not only seniority and suitability
simpliciter but ‘inter se’ seniority and suitability.  The expression ‘inter
se’ is totally ignored and there is no discussion thereupon at all, which
has led the AFT to take wrong view insofar as interpretation of the
criteria laid down in the Circular dated 10th July, 1992 is concerned,
which talks of ‘inter se seniority and suitability’.
46. Having made this legal position clear, we advert to the facts
of the present case.
47. Some admitted facts which are pertinent for the outcome of
the present appeal need to be highlighted at this juncture.  These are:
(i) The respondent is the senior most Lt. General
(ii) He fulfils the eligibility criteria for appointment to the post of
DGMS (Army).
(iii) DGMS (Army) is treated as better post than other DGs, i.e.
DGMS (Navy) and DGMS (AF).
UNION OF INDIA THROUGH ITS SECRETARY & ORS. v.
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(iv) The 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 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.
Even, in the present case, for appointment of DGMS (Army) the
first Note dated 16th January 2018 by DGAFMS, in no uncertain terms,
stated that the appointment to this post is to be made ‘strictly on the
basis of their seniority’, meaning thereby the senior most Lt. General (&
Equiv) is to be posted.  That Note was prepared on the assumption that
the respondent is not in the reckoning as his case for promotion to the
post of Lt. General was not recommended.
(v) It is for the first time that in the Note dated 23rd January 2018
the question of so-called ‘suitability’ is taken up.  We have used the
expression ‘so-called’ for the reason that (as would be 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
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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 of Lt. General he is out of reckoning and, accordingly,
Lt. General Sanjiv Chopra was the senior most officer.  Proceeding on
the aforesaid presumption, after excluding the respondent from
consideration, he recommended Lt. General Sanjiv Chopra for
appointment as DGMS (Army) being the senior most in the AFMS cadre.
This Note went to the extent of recording that not only promotion is
strictly on the basis of their seniority, it was being done even for the
posts of  ‘DGAFMS’, ‘DGsMS’ and the ‘CDC IDC’ who are retained
in the order of seniority for administrative reasons.  Within three days
thereafter, when the decision of the Raksha Mantri to promote the
respondent to the rank of Lt. General was declassified, in the fresh Note
prepared on 23rd January 2018, there was a complete turn around.  For
the first time, it was mentioned in this Note that as per the criteria Lt.
General (& Equiv) will be assessed for appointment of DGMS ‘in the
light of their earlier experience in a particular
service’.  No doubt, this
criteria is mentioned in the Circular dated 10th July 1992 and, therefore,
there may not be anything wrong per se.  However, we 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
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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).  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 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
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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.
Kalpana K. Tripathy
                      Appeal partly allowed.
UNION OF INDIA THROUGH ITS SECRETARY & ORS. v.
MAJ. GEN. MANOMOY GANGULY [A. K. SIKRI, J.]