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TMI Blog2018 (8) TMI 2159X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) warr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esult 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 parameters 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espite 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 judgments, 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 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 concerned, but in the case of seniority cum suitability, no such comparison is envisaged. Suitability of an officer is totally dependent on the individual characteristic of the offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ular 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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nuate 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). 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 matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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 and Anr. (1969) 1 All E.R. 208 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 promo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y)). 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 Authority (2005) UKHL 28, 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 dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 fulfills 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). (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. (iv) Even, in the present case, f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enior 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 turnaround. 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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