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 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-cumsuitability’, where seniority is a decisive factor and suitability is a secondary factor. 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 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 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 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.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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