2018 (8) TMI 2159 - SC - Indian Laws

Promotion of the Respondent to the rank of Lieutenant General - judicial interpretation given by the Court to the concept of seniority cum suitability - 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 or not - officer who has tenure of less than one year can be appointed by the Respondents despite the minimum tenure prescribed by its own circular or not. HELD THAT - 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 - 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. There are 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'. 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'. The appointment of Lt. General Sanjiv Chopra to the post of DGMS (Army) warrants to be quashed. The direction of the AFT that the Respondent be straightaway appointed to the post of DGMS (Army) may not be proper - the civil appeal is partly allowed and is disposed of.

Summary

Issues Involved:
1. Promotion of the Respondent to the rank of Lieutenant General.
2. Eligibility and suitability criteria for the post of Director General Medical Services (Army) [DGMS (Army)].
3. Interpretation of the criteria "inter-se seniority and suitability" for the appointment of DGMS (Army).
4. Judicial review of the administrative decision regarding the appointment.

Detailed Analysis:

1. Promotion of the Respondent to the Rank of Lieutenant General
The Respondent was commissioned in the Army Medical Corps on 3rd March 1980 and attained the rank of Major General on 14th November 2013. He was considered for promotion to Lieutenant General by the Special Promotion Board (Medical) [SPB] on 20th January 2016 and 3rd October 2016 but was not empaneled. His statutory complaint led to the expunction of adverse remarks in his Annual Confidential Report (ACR) for 2014. Despite this, the Review Board did not empanel him, leading to another statutory complaint. The Armed Forces Tribunal (AFT) found that he was wrongly allotted fewer marks and directed a fresh review, which eventually led to his promotion on 1st March 2018.

2. Eligibility and Suitability Criteria for the Post of DGMS (Army)
The Respondent aspired to the position of DGMS (Army), which was denied by the Appellants. The AFT directed the Appellants to appoint the Respondent to the post of DGMS (Army) based on his seniority and suitability. The Appellants argued that the criteria for appointment included "inter-se seniority and suitability," and found Lt. General Sanjiv Chopra more suitable despite the Respondent being senior.

3. Interpretation of the Criteria "Inter-se Seniority and Suitability"
The AFT interpreted the criteria as "seniority-cum-suitability," meaning seniority should be the decisive factor unless the senior officer is found unsuitable. The Supreme Court, however, found that "inter-se seniority and suitability" implies that both seniority and suitability should be assessed comparatively among eligible officers. The Court emphasized that suitability involves evaluating the officer's experience, competence, and fitness for the post.

4. Judicial Review of the Administrative Decision Regarding the Appointment
The Supreme Court observed that the AFT's interpretation ignored the "inter-se" aspect of the criteria, which led to a flawed conclusion. The Court noted that the past practice of appointing the senior-most officer was not a binding rule and that suitability should be assessed comparatively. The Court also highlighted that the administrative decision-making process should be fair and objective, and not solely based on seniority.

Conclusion:
The Supreme Court quashed the appointment of Lt. General Sanjiv Chopra as DGMS (Army) and remitted the matter to the Raksha Mantri for a fresh decision. The Court emphasized the need for a fair and objective assessment of "inter-se seniority and suitability" and directed the Appellants to expedite the process. The civil appeal was partly allowed, and the matter was disposed of with specific directions to ensure a timely and fair decision.